Berthelsen v Williams - [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

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.
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).
[2]Pickering v McArthur [2005] QCA 294 at [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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berthelsen v Williams

Details

AGLC: Berthelsen v Williams [2016] QCATA 89
Case: [2016] QCATA 89
Decision Date: 18 April 2016

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.