Baker v Culvenor
[2019] VSC 224
•10 April 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01381
| DIANNE BAKER | Plaintiff |
| v | |
| ALEXANDER TRISTAN CULVENOR t/as REDLINE MOTORCYCLES | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 February 2019 |
DATE OF JUDGMENT: | 10 April 2019 |
CASE MAY BE CITED AS: | Baker v Culvenor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 224 |
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CIVIL CLAIMS — Order of VCAT summarily dismissing civil claim on limitation defence — Plaintiff self-represented — Issue as to when cause of action arose — Tribunal found loan repayable on a date not advanced by the parties — Tribunal decided case on written submissions after limited hearing — Failure to find terms of contract — Appeal allowed — Limitation of Actions Act 1958 s 5(1)(a); Victorian Civil and Administrative Tribunal Act 1998 ss 75, 148.
ADMINISTRATIVE LAW — VCAT — Natural justice — Granting summary judgment on basis not advanced by parties —Parties not given opportunity to lead oral evidence or cross-examine witnesses — Denial of natural justice — Victorian Civil and Administrative Tribunal Act 1998 s 98, 102.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the Defendant | Self-represented |
HIS HONOUR:
The plaintiff, Ms Dianne Baker, seeks leave to appeal from orders of the Victorian Civil and Administrative Tribunal (‘VCAT’) made on 19 March 2018 summarily dismissing her proceeding against the defendant, Mr Alexander Culvenor. The plaintiff seeks leave to appeal pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). An appeal lies only with leave on questions of law.
The challenged decision of VCAT was the summary dismissal of a proceeding under s 75 of the VCAT Act on the ground that is ‘frivolous, vexatious, misconceived or lacking in substance’. The VCAT Member dismissed the plaintiff’s application on the basis that her claim against the defendant was commenced after the limitation period under s 5(1)(a) of the Limitation of Actions Act 1958 (‘Limitation Act’), as six years had elapsed since her cause of action accrued. The plaintiff’s application for leave to appeal is based on arguments that she was denied procedural fairness, and a range of other matters that are detailed below, which in summary were a failure to take into account relevant considerations and to properly apply the law.
The case at VCAT
On 21 January 2017, the plaintiff commenced a civil claim application against the defendant in VCAT. The plaintiff sought, inter alia, to recover loans that she purportedly paid to the defendant in and after 2005. At the time the loan money was allegedly paid, the defendant desired to open a motorcycle shop, ‘Redline Motorcycles’. The plaintiff claims that she loaned a sum in excess of $73,000 to assist him to open this business, and in consideration she was to become a formal equal partner once the business became profitable. The defendant denies that he promised to make her a partner, claiming that he offered her a partnership in the business which she declined due to her concern that it would interfere with her Centrelink payments. He claimed that instead there was an agreement whereby the plaintiff would assist the business by performing bookkeeping and other duties and in return she would have free board and bills paid at his Cranbourne residence.[1] The plaintiff made other claims including for the return of a valuable motorcycle number plate or $50,000 and a half share of two other businesses and damages for misleading and deceptive conduct.
[1]This summary of background is largely taken from the Tribunal’s reasons for decision.
The plaintiff’s claim
The Points of Claim in VCAT were contained in a 22 page document which was written in narrative form. In essence they were that in 2005 Mr Culvenor discussed with Ms Baker his plans to open a motorcycle shop. She agreed to, and did, contribute loan funds on the basis of a partnership with each having a 50 per cent share. She said that his representations constituted a verbal contract and the contractual promises were frequently repeated between 2005 and 2011. Mr Culvenor promised that a formal written partnership agreement would be entered into once the business went into profit but until then Ms Baker was to work in the business. Mr Culvenor regularly made promises that her loans would be repaid with interest or converted into equity/proprietorship in the business as soon as it recorded a profit. Ms Baker said that the amounts she loaned to Mr Culvenor in the form of cash, goods and loans from third parties on her behalf exceeded $50,000. If unpaid wages were taken into account her claim would be greatly in excess of $50,000. Mr Culvenor’s promises and representations that she was a business partner in fact, but not on the record, were made to induce her to enter into a commercial lease of the premises at which the business was conducted. In addition to the repayment of loans, she claimed damages for misleading and deceptive conduct which she contended breached the Fair Trading Act 1999. As mentioned, she also claimed the return of a motorcycle number plate of particular value or the amount of $50,000 representing its value and other remedies.
The defendant’s defence
Mr Culvenor denied these allegations and said that Ms Baker declined a partnership and that she made no loans, but that her mother loaned $30,000. She was not an employee although she did perform work in the business. She was asked to leave Mr Culvenor’s property and did so in January 2011.
The VCAT hearing
At the commencement of the VCAT hearing on 12 December 2017, the defendant’s counsel applied for the application to be struck out under s 75 of the VCAT Act on the basis that it was statute barred. No notice had been given to Ms Baker of the strike out application and no limitation defence was included in the Points of Defence. The proceeding was stood down so that amended point of claim could be considered. On the resumption counsel for Mr Culvenor resumed his application stating that the cause of action accrued when the plaintiff’s employment with the defendant ceased in early 2010.[2] Mr Culvenor’s counsel described the breakdown of the relationship between the parties in December 2010, culminating in applications for intervention orders against Ms Baker in February 2011. He also tendered emails from Mr Culvenor in early January 2011, which advised another business that Ms Baker ‘will be moving on from Redline Motorcycles’. Mr Culvenor relied on this evidence to support an argument that Ms Baker’s employment with the business terminated in December 2010 or early January 2011, and that that any cause of action in contract accrued at that time. Consequently, her claim was statute barred shortly before she instituted proceedings on 21 January 2017. The defendant summarised his case as saying that the cessation of employment occurred in late 2010.[3] He said that the limitation period expired in late 2016, somewhere between Christmas 2016 and 12 January 2017.
[2]Court Book, 43 (‘CB’).
[3]CB 46.
Mr Culvenor was called to give evidence and made an affirmation, but the transcript does not reveal that he was asked or answered any question, but rather discussion followed between Mr Culvenor’s counsel and Ms Baker and the VCAT Member. The Member appeared to understand Mr Culvenor’s case to be that the six year limitation period expired on or about 20 January 2016.[4]
[4]CB 50.
Ms Baker was self-represented, but apparently had received assistance from her brother who is a lawyer. She claimed that she was notified of the cessation of her employment upon receiving a letter from the defendant’s solicitor on 24 January 2011, and that she had commenced her application in VCAT on 21 January 2017, three days prior to the six year limit. She said that the solicitor’s letter concerned the intervention order applications and she was the lessee of Redline’s business premises under a lease that lasted until December 2011. She said that her cessation in the business was from 24 January 2011. She also contended that the loans she had made were recorded in the business’ 2008 tax return and that under applicable accounting standards unless that debt has been extinguished it was carried forward.[5] She relied on s 25 of the Limitation Act, and provisions dealing with acknowledgments of debts.
[5]CB 54-55.
Ms Baker argued that her employment could not end in December 2010, as the defendant contended, because she was not an employee, but a partner.
The Member questioned why she had not attempted to recover the loans until her application filed in VCAT on 21 January 2017. When asked why she had not sued at an earlier time, she said that attempts had been made to settle the proceeding. She said that her action was within the six years and it was not until 24 January 2011 that she first knew of her non-involvement in Redline Motorcycles.
The Member stated that there were a lot of documents to consider and that he would direct written submissions on the strike out application and thereafter would either reconvene the hearing or order that it be struck out. He said that Ms Baker was unrepresented and needed a reasonable period of time to consider the submissions that she wished to make about the summary judgment application and seek legal advice before she responded. He required Mr Culvenor to file submissions by 22 December 2017 and Ms Baker by 15 January 2018.
The parties’ written submissions on the strike out application
The defendant’s submissions
Mr Culvenor’s written submissions identified that the application for a dismissal or strike out was made on all of the grounds mentioned in s 75, i.e. that the complaint was frivolous, vexatious, misconceived, lacking in substance or was an abuse of process or was out of time pursuant to the Limitation of Actions Act and the Fair Trading Act.
Mr Culvenor submitted that the commercial relationship between Ms Baker and Redline ended in December 2010. He exhibited statutory declarations by a former employee, Mr M Dwyer and Ms P Culvenor, that supported that conclusion. He submitted that he had established that Ms Baker’s application was statute barred as her cause of action accrued in late December 2010 or early January 2011.
The plaintiff’s submissions
Ms Baker delivered lengthy submissions alleging that Mr Culvenor’s arguments were an abuse of process and wrongly relied on estoppel, attacked the reliance on evidence provided by Mr Dwyer and Ms Culvenor, alleging amongst other things that the defendant had engaged in ambush and unconscionable and deceptive conduct. Ms Baker argued that her application was not out of time as she had continued her involvement with the business until 24 January 2011. She stated that the loan had never been repaid.
The VCAT decision
On 19 March 2018, the Member summarily dismissed Ms Baker’s application under s 75 of the VCAT Act on the basis that it was lacking in substance because it was not commenced within the applicable limitation period. The Member did not adopt either alternative proposed by the parties as to when the plaintiff’s cause of action accrued. He found that the verbal agreement was formed in August 2005, and that the cause of action also accrued in August 2005 when the defendant failed to comply with the verbal agreement. The Member did not identify the breach of the verbal agreement that he considered had occurred. Nor did the Member identify the relevant terms of the verbal agreement.
The Member stated that:
1.Mr Culvenor is the proprietor of Redline Motorcycles, a motor shop in Dandenong, which commenced trading in January 2006 (the business).
2.Mr Baker claims that in consideration of her contributing loan funds and convincing her mother and father to also contribute, Mr Culvenor promised that she and he would be equal partners in the business, a promise that he repeated continuously to her between 2005 and 2010. Ms Baker stated he said a formal partnership agreement would be entered into once the business went into profit, which it did in October 2010.
3.Mr Culvenor admits that although the idea of Ms Baker being a partner in the business was discussed, he says she declined, as it would interfere with her Centrelink payments. He denies there was any partnership agreement and says the agreement was simply that in [return for] Ms Baker helping out by performing bookkeeping duties and running the shop, she had free board and bills paid at his residence in Cranbourne.
4. In her Amended Points of Claim dated 27 July 2017, Ms Baker seeks-
a) repayment of loans totalling $73,765.00;
b) return of the ‘WSBK’ number plate or $50,000;
c) a one half of the Pro Bolt and Carrozzeria businesses;
d) damages;
e) damages for misleading and deceptive conduct;
f) interest.
5.In his Points of Defence to the Amended Points of Claim, Mr Culvenor denies,
a)making any representations or promising that Ms Baker would become a partner in the business;
b)entering into a loan agreement with Ms Baker or receiving any loan funds from her or any third party;
c)agreeing to share revenue or profits of any enterprise conducted by her with Ms Baker; or
d) having engaged in misleading or deceptive conduct.
6.Mr Culvenor submits that as more than 6 years has elapsed since the alleged agreements were entered into, section 5(1)(a) of the Limitation of Actions Act 1958 and Section 159(3) of the Fair Trading Act 1999 (Vic) preclude Ms Baker from pursuing her claim based on the alleged agreements. Therefore, the Tribunal has no jurisdiction to hear her application and the proceeding should be dismissed under Section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) as being misconceived.
…
14.It is well known that in broad terms, the Limitation of Actions Act 1958 prohibits a person from issuing civil proceedings more than six years after the relevant cause of action accrued.
…
16.Ms Baker says that a verbal agreement for the business to be a partnership between Mr Culvenor and herself, and her financial contributions until the business went into profit, was entered into August 2005. She further said that even though written contracts evidencing the verbal agreement were drawn up by her brother, Mr Culvenor refused to sign those documents. However, she has not produced those documents in the supporting documents she filed with her application or as part of her Witness Statement dated 8 November 2017.
17.I find that this agreement is a simple contract [falling] within section 5(1)(a). Ms Baker’s cause of action against Mr Culvenor for his failure to comply with this agreement therefore accrued in August 2005, and the limitation period for her to commence proceedings to enforce that agreement expired in August 2011.
18.Her application was filed with the Tribunal on 21 January 2017, in excess of 5 years after the expiration of the 6 year limitation.
19. Section 24(3) provides that-
Where –
(a)any right of action has accrued to recover any debt or other liquidated pecuniary claim or any claim to the personal estate of a deceased person or to (b) any share or interest therein; and
(b)the person liable or accountable therefor acknowledges the claim or makes any payment in respect thereof –
(c)the right shall be deemed to have accrued on and not before the date of the acknowledgement or the last payment.
20.However, as Mr Culvenor has not made any payments to Ms Baker pursuant to the alleged verbal agreement, I find that section 24(3) does not apply here.
21.I find that as Mr Culvenor has failed to commence her proceeding against Mr Culvenor within the applicable limitation period, and therefore her claim is misconceived or lacking in substance.
22. I will order that the proceeding be struck out.
In fact the Member did not order that the proceeding be struck out, but ordered that it be dismissed.
The plaintiff’s application for leave to appeal
The questions of law
Ms Baker’s questions of law for the purposes of seeking leave under s 148(1) of the VCAT Act are:
1.Errors of law – failure to have regard to material evidence, taking into account and being influenced by immaterial evidence, inadequate reasons, unfair procedures, misunderstanding or misconstruction of the law, disregarding a relevant statutory process or procedure and irrationality, error of law on the face of the record, jurisdictional error.
2. Denial of procedural fairness.
In her amended originating motion, Ms Baker sought the following orders if she was granted leave and her appeal succeeds setting aside the Tribunal’s orders and seeks orders including but not limited to:
A.A declaration that the Plaintiff is entitled to be paid $73,765 (together with any accrued interest) by the Defendant in respect of loans made by the Plaintiff to the Defendant which the Defendant has failed to repay.
B.A declaration that the Plaintiff is entitled to the return of ‘WSBK’ number plate.
C.Alternatively to paragraph B above, a declaration that the Plaintiff is entitled to be paid $50,000 (together with any accrued interest) by the Defendant.
D.A declaration that the plaintiff is entitled to be paid a one half share of the Pro Bolt and Carrozzeria businesses (together with any accrued interest) by the defendant.
E.A declaration that the defendant is not entitled to a costs order in respect of the VCAT hearing.
F. An order that the defendant pay the plaintiff’s costs of this proceeding.
The grounds of appeal
The proposed grounds of appeal upon which Ms Baker seeks those orders are outlined in her amended notice of appeal. The grounds in summary are as follows. First that she was denied a substantive hearing with a reasonable opportunity to argue her case in breach of procedural fairness. The second ground is that the VCAT decision was unreasonable, devoid of plausible justification, gave excessive or inadequate weight to a consideration, made erroneous finding of fact on a point of importance, failed to have proper regard to the enforcement of VCAT policy or procedures, to the unnecessarily harsh effect of the decision and failed to give genuine, proper and realistic consideration to the matter by making inadequate inquiry as to the facts. The third ground is a no evidence ground that the VCAT Member failed to consider the evidence and her submissions. The fourth ground is that the VCAT Member failed to take into account relevant considerations such as provisions of the Instruments Act 1958 and the Fair Trading Act 1999. The fifth ground is that the Member fell into jurisdictional error by failing to consider the substance of the plaintiff’s submissions resulting in a mistaken conclusion. The sixth ground is that the Member committed an error of law on the face of the record because he erroneously conflated dismissing and striking out a proceeding, failed to consider two Acts that he referred to at the beginning of his reasons and failed to articulate an ‘opinion’ in respect of the case before him in exercising his s 75(1) discretion. The seventh ground is that the errors made by the Member were material and, but for the errors, the decision would have been or may have been different. The eighth and final ground is that the plaintiff was prejudiced by the Member failing to grant her an adequate opportunity to make submissions and call witnesses, including by failing to consider her submissions, and by permitting the defendant to ambush her by introducing new evidence on more than one occasion without giving the plaintiff the opportunity to test that evidence.
Though these grounds are overlapping and repetitious, they can be grouped into two categories. First, that the VCAT Member erred by not providing Ms Baker natural justice and procedural fairness and by considering a s 75 strike out application on the papers, thus denying her the opportunity to lead evidence and call and cross-examine witnesses. Secondly, that the Member had not correctly approached the determination of the summary judgment application. This second argument was put in different forms: failing to consider her arguments; failing to consider relevant provisions of the Limitation of Actions Act and the entirety of the Instruments Act and the Fair Trading Act; erroneously conflating ‘dismissing’ and ‘striking out’ a proceeding, despite their legal differences; not expressing an ‘opinion’ pursuant to s 75(1) of the VCAT Act, and by making a decision so unreasonable that it was devoid of possible justification.
The plaintiff’s submissions
In this Court, Ms Baker repeated her submissions made to VCAT.
She filed elaborate legal submissions about principles of judicial review, expressed mainly at a level of high generality. The submissions argued that the Tribunal Member should have determined the ‘start time’ of the debt, determined the confirmation or acknowledgement of the debt and any extension of the limitation time limit. She referred to bank statements showing loan repayments made to her by Redline Motorcycles. She contended that the Tribunal Member had incorrectly applied s 75 of the VCAT Act, under which if the facts pleaded in her Points of Claim were proved and entitled her to the relief sought, the application could not be dismissed under s 75. She argued that leave to appeal should be granted because the appeal had real prospects of success and there were real questions to be tried.
She also contended that she had been denied a fair hearing because she had received no notice of the summary judgment application and had relied on Mr Culvenor’s statement at a directions hearing that there were no outstanding interlocutory applications.
The defendant’s submissions
Mr Culvenor said that he did not deny that there were any loans at all, but that they were nowhere near the amount that Ms Baker claimed.[6] In considering her evidence it had to be taken into account that she had carried out the bookkeeping for the business.[7]
[6]Transcript of Proceedings, Baker v Culvenor (Supreme Court of Victoria, S CI 2018 01381, 20 February 2019) 52.
[7]Ibid.
Mr Culvenor submitted that the VCAT Member’s decision was correct as he had considered the relevant times and the applicability of limitation periods in the statutes and had considered the evidence. He repeated that Ms Baker had left the business at the end of December 2010.
Analysis
In my opinion, Ms Baker is entitled to be granted leave to appeal and her appeal should be allowed. Her application was not one that could be dealt with by summary judgment. In the absence of a written loan agreement, her case required consideration of whether she had proved a loan agreement made with Mr Culvenor and if so, what its terms were, how much was loaned and when any such amount was due for repayment. Each of those issues required both Ms Baker and Mr Culvenor to have the opportunity of giving oral evidence and cross-examining the other party and their witnesses. Section 102 of the VCAT Act gave them these rights. It was certainly not a case that could be dealt with by a short hearing at which Mr Culvenor by counsel made a summary judgment application without notice, which after a short hearing was dealt with by written submissions.
Ms Baker’s first question of law and the associated appeal grounds allege that the Member made errors of law by failing to have regard to material in evidence, taking into account immaterial evidence and misapplying the law.
One issue was whether the plaintiff’s employment with Redline ceased before or after 20 January 2011. There appeared to be conflicting written evidence on this issue, and each parties’ account differs considerably. That conflicting evidence needed to be considered after the parties had the opportunity to give oral evidence and cross-examine the other party.
However, the Member did not base his decision on a finding that the plaintiff’s cause of action accrued when her employment with Redline ceased. Rather, he reached a conclusion that neither party had advanced and which was unexplained by reference to any finding about the terms of the loan agreement. He found that the cause of action accrued in August 2005 and that therefore the plaintiff’s limitation period expired in 2011; many years short of the expiry points on which the parties relied. The Member did refer to authorities on when a strike out application was appropriate, including that it could be ordered if the plaintiff’s case was utterly hopeless. He referred to the statement by Deputy President Macnamara in Smeaton v Accident Compensation Conciliation Service that:
It is not appropriate to make a determination of summary dismissal under Section 75 if the matter is at all arguable or if the outcome of the proceeding turns in any way upon any contested piece of evidence depending, for instance, on credibility.[8]
[8][2010] VCAT 1236, [13].
But the Member did not properly apply those statements of principle. The approach to be adopted on a summary dismissal application was stated in the High Court decision in Wardley Australia Ltd v Western Australia,[9] which concerned a claim for damages under the Trade Practices Act 1974, in the following terms:
We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question.[10]
[9](1992) 175 CLR 514.
[10]Ibid 533 (Mason CJ, Dawson, Gaudron and McHugh JJ).
This statement of principle can be applied to summary judgment applications made under s 75 of the VCAT Act, whether the limitation provision relied on is contained in the Limitation of Actions Act or the Fair Trading Act.
The limitation issue that was argued before the Member principally concerned the date on which Ms Baker’s loan was repayable. This dispute included a contest as to when Ms Baker ceased to have any involvement with the business. As previously mentioned, the Member stated:
Ms Baker says that a verbal agreement for the business to be a partnership between Mr Culvenor and herself, and her financial contributions into the business went into profit, was entered into in August 2005. She further said that even though written contracts evidencing the verbal agreement were drawn up by her brother, Mr Culvenor refused to sign those documents. However, she had not produced those documents in the supporting documentation she filed with her application or as part of her witness statement dated 8 November 2017.
I find that this agreement is a simple contract falling within section 5(1)(a). Ms Baker’s cause of action against Mr Culvenor for his failure to comply with this agreement therefore accrued in August 2005, and the limitation period for her to commence proceedings to enforce that agreement expired in August 2011.
Her application was filed with the Tribunal on 21 January 2017 in excess of five years after the expiration of the six year limitation period.
The Member stated that ‘in broad terms, the Limitation of Actions Act prohibits a person from issuing civil proceedings more than six years after the relevant cause of action accrued’. That is not the case. Rather a limitation period provides a defence and must be pleaded, or in the Tribunal expressly relied on, before it can defeat a claim. It does not prohibit a person from issuing civil proceedings.[11]
[11]Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 at 75; Peter Handford, Limitation of Actions Laws of Australia (Thomson Reuter, 4th ed, 2017) 377-8 (‘Hanford’).
The plaintiff’s evidence before the Tribunal as contained in written statements was that the loan was to be repaid once the business went into profit.
The Member did not approach the question of when the cause of action accrued in accordance with law. The time that an action accrues in relation to a contract of loan depends on the terms for repayment of the loan under the contract.[12] The Member did not identify those terms.
[12]Re McHenry; McDermott v Boyd [1894] 3 Ch 290; Hanford, 81‑82.
The Tribunal Member may have considered that the loan was repayable on demand and therefore due in August 2005. There was no basis for saying that. It was contrary to Ms Baker’s case and it was contrary to Mr Culvenor’s case.
The Tribunal therefore did not carry out the task of applying the law as to when the cause of action accrued. The Tribunal Member did not make findings as to the terms of any loan agreement between the parties, including how much was loaned and at what dates and what the term or terms for repayment were.
It would have been inappropriate for the Member to grant Mr Culvenor summary judgment by accepting that Ms Baker’s cause of action accrued when she was dismissed by Redline in late 2010, as that fact and the date when she ceased involvement with Redline were disputed. However, it was equally inappropriate for the Member to grant the summary judgment application on the basis that the plaintiff’s cause of action accrued in August 2005. Neither party had advanced that contention and it was procedurally unfair for the case to be determined on that basis.
I therefore also consider that the Tribunal did not provide Ms Baker with natural justice and procedural fairness as required by ss 98 and 102 of the VCAT Act. It decided a case involving a self-represented litigant on a basis that neither side had advanced, without providing the opportunity to lead evidence and call and examine witnesses. The proper determination of the case required a close examination of the perhaps messy and detailed evidence about the terms on which Ms Baker may have made loans and whether any acknowledgement of the loans had occurred. That did not occur. The second question of law and associated grounds of appeal are established.
The Tribunal also gave no consideration to Ms Baker’s other claims including for damages in respect of a particular motorcycle number plate which she claimed was of value.
Conclusion
The application for leave to appeal was heard at the same time as the substantive arguments to be relied on if leave was granted. Leave to appeal should be granted because Ms Baker has established that the VCAT decision contains errors of law and that it is just to grant leave.
Leave to appeal is granted to Ms Baker in respect of both questions of law and the associated grounds of appeal. The orders of VCAT of 19 March 2018 in application No. C340/2017 are set aside and the application is remitted to VCAT differently constituted to be dealt with according to law and in accordance with these reasons.
Upon the rehearing, the new Tribunal Member must decide whether there was a loan agreement, and if so its terms, including the amounts loaned and the terms of repayment and whether, and when, the loan agreement or agreements were breached. Those matters must be decided before any limitation defence can be considered. Ms Baker’s other claims must also be considered and determined.