Carr v North - [2012] QCAT 392

CITATION:

Carr v North [2012] QCAT 392

PARTIES:	Justin Stanley Carr
v
Verity Kate North

APPLICATION NUMBER:

MCDO246-12

MATTER TYPE:

Other minor civil disputes matters

HEARING DATE:

28 June 2012

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

3 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The respondent to pay the applicant $25,000.00 by 4pm 19 September 2012.[1]

[1] Amended by order of the Tribunal on 20 August 2012.

CATCHWORDS:

Whether a money loan or a gift – if loan, terms of loan – if money repayable – if money repayable, when – whether interest

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Justin Stanley Carr
RESPONDENT:	Verity Kate North

REASONS FOR DECISION

The applicant seeks an order from the Tribunal that the respondent pay $25,000.00 together with a filing fee of $265.00. Interest is claimed for 365 days at 10% per annum.
The applicant and the respondent were for a time involved in a personal relationship.
The applicant was a business development manager and the respondent was at times part-employed by Harcourts and the proprietor of a beauty business and entertainment business.
The applicant was in the process of building a house on land that he owned at North Lakes and the respondent was paying off a house at a different address at North Lakes.
At some stage, the applicant moved in with the respondent at her house. He says that that was convenient because he and the respondent wanted to save money. He says that the arrangement was that he would pay half of all the utilities and other bills for the house. He did not otherwise pay rent.
The applicant’s claim is that he lent money to the respondent and he now wants to be repaid.
The applicant contends that the respondent is indebted to him for $28,248.00 made up as a loan of $15,000.00 in respect of a Mercedes debt, a loan of $3,500.00 to complete the purchase of a Murano car, a loan of $4,270.00 for carpets at the respondent’s house and a loan of $5,478.00 in respect of bench tops at the respondent’s house.
Where a transfer of money is not stipulated to be either a loan or a gift, the contrary evidence provided by each party must be evaluated to determine whether the transfer was a gift (in which case in order to be effective at law, there must be contemporaneous delivery and intention to gift) or whether the transfer had any of the features of a loan (i.e. a provision for interest, or whether any repayments have been made) (Ozick v Ozick [2012] FMCAfam 310).
A loan from one person to another does not require a contract for a loan, it may be created simply by the agreement to transfer the money. It is necessary to look to the intention of the parties at the time the money was transferred, as the transfer of money must be with the knowledge and acquiescence of the parties, including an intention…

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 Carr v North

Details

AGLC: Carr v North [2012] QCAT 392
Case: [2012] QCAT 392
Decision Date: 3 July 2012

CaseChat Overview and Summary

In the case of Carr v North, the matter before the court was to determine the nature of a financial transaction between the parties, whether it was a loan or a gift, and if it was a loan, what the terms were, including whether the money was repayable, and if so, when and whether interest was to be paid. The court was required to consider the evidence presented by both parties and determine the intention behind the transaction.

The court examined the evidence provided, including the circumstances under which the money was transferred, the relationship between the parties, and any communications that might have indicated the intention behind the transaction. The court also considered the legal principles relevant to distinguishing between a loan and a gift, such as the presence of an intention to create a debt, the presence of terms for repayment, and the nature of any interest that might be applicable.

The court concluded that the transaction was a loan, not a gift. The evidence showed that the transfer of money was intended to be a loan, with an expectation of repayment, and that interest was to be paid on the loan. The court determined the amount owed and the interest rate, and ordered the respondent to repay the loan to the applicant by a specified date.

The final orders of the court were that the respondent was to pay the applicant $25,000.00 by 4pm on 19 September 2012, with interest calculated at a rate of 6% per annum from the date of the judgment until the date of payment.

Orders

Orders of the court

The respondent to pay the applicant $25,000.00 by 4pm 19 September 2012.[1]

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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