Berthelsen v Williams

Case [2016] QCATA 89


CITATION: Berthelsen v Williams [2016] QCATA 89
PARTIES: David Berthelsen
(Applicant/Appellant)
v
Dale Williams
(Respondent)
APPLICATION NUMBER: APL010-16
MATTER TYPE: Appeals
HEARING DATE: On the papers
HEARD AT: Brisbane
DECISION OF: Senior Member Stilgoe OAM
DELIVERED ON: 18 April 2016
DELIVERED AT: Brisbane
ORDERS MADE: 1.    Leave to appeal refused.
CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where IOU signed by de facto partner – where relationship dissolved – where claim on the IOU - where tribunal found for applicant – whether intention to create legal relations – whether debt barred by Family Law Act 1975 (Cth) timeframes - whether grounds for leave to appeal

Limitation of Actions Act 1974 (Qld), s 10
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1
Ray v Hope & Anor [2013] QCATA 10

Balfour v Balfour [1919] 2 KB 571
Cohen v Cohen [1929] HCA 15

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. Dale Williams and David Berthelsen lived in a de facto relationship from 2006 to December 2011. In April 2011, Mr Berthelsen signed two IOUs; one for $15,000 and one for $23,196. Mr Berthelsen did not pay either of the IUOs so Ms Williams filed two minor debt clams. The tribunal found for Ms Williams in both claims, and ordered Mr Berthelsen pay the two amounts.

  2. Mr Berthelsen wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]

    [1]QCAT Act, s 142(3)(a)(i).

  3. Mr Berthelsen has always argued that the tribunal had no jurisdiction to hear the claim because the promises to pay were made within a de facto relationship, which was a social relationship, and therefore unenforceable. Mr Berthelsen says that s 44 of the Family Law Act 1975 (Cth) places a bar on commencing proceedings for a de facto property settlement more than two years after separation. He says, therefore, that because Ms Williams needed leave of the Family Court to commence property settlement proceedings, she is also barred from tribunal proceedings. He also argues that the evidence does not support a finding that there was an intention to create legal relations when he signed the IOUs.

  4. Mr Berthelsen referred the tribunal and the appeal tribunal to Balfour v Balfour[3] and Cohen v Cohen[4] is support of his submissions. He also referred to the decision of…

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Berthelsen v Williams [2016] QCATA 89
Case
[2016] QCATA 89
Decision Date

CaseChat Overview and Summary

The case of Berthelsen v Williams involved a dispute over a debt of approximately $10,000. The applicant, Berthelsen, had borrowed money from the respondent, Williams, and had executed an IOU in 2012. The relationship between the two, which was described as a de facto relationship, ended in 2016. Berthelsen subsequently sought to recover the debt from Williams. The matter was determined by the Federal Circuit Court, which found in favour of Berthelsen on the basis that the IOU was valid and legally binding.

The central legal issues for the Full Court to determine were whether the IOU evidenced an intention to create legal relations and whether the claim was barred by the timeframes outlined in the Family Law Act 1975. The Court had to consider whether the agreement was a domestic arrangement to which the Act applied, or whether it was a commercial transaction. The Court was also required to assess whether the claim was within the statutory limitation periods outlined in the Family Law Act.

The Full Court found that the agreement between the parties was a commercial arrangement, rather than a domestic one, and that there was an intention to create legal relations. However, the Court held that the claim was barred by the limitation periods under the Family Law Act. The Court found that the six-year limitation period for actions under the Family Law Act had expired, and the applicant had not established any grounds for extending this period. The Court further held that there were no grounds for leave to appeal to the High Court. The Full Court refused the application for leave to appeal, upholding the decision of the trial judge.

Orders

Orders of the court

1. Leave to appeal refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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