Gervasi v Williams

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Gervasi v Williams [2022] QCATA 90

PARTIES: GUISEPPE GERVASI

(applicant)

v

MARGARET WILLIAMS

(respondent)

APPLICATION NO:

APL139-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

1 July 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – action for debt – counter-claim for chattels removed - where moneys advanced to homeowner – where those moneys refunded in part – where action for balance unpaid – where person advancing moneys authorized to occupy payee’s premises in return for supervision while homeowner absent – whether moneys in issue are rent payable to homeowner or balance of loan - whether onus of proof discharged by claimant of balance – where onus not discharged – where counter-claim dismissed for lack of evidence

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143

Abalos v Australian Postal Commission (1990) 171 CLR 167

Ashton v Pratt [2015] NSWCA 12

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Devries v Australian National Railways Commission 177 CLR 472

Drew v Bundaberg Regional Council [2011] QCA 359
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330

LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174

Meehan v Jones (1982) 149 CLR 571

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

WTE Co-Generation v RCR Energy Pty Ltd^[ [2013] VSC 314

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Introduction

On three occasions in June and July 2020[1] the applicant Guiseppe Gervasi (`Gervasi’) advanced $5,000 to the respondent Margaret Williams (`Williams’) – $15,000 in all. Gervasi characterises those advances as a loan.
[1]Transcript of hearing 6 April 2021 (`T’) page 4 lines 10-24.
Williams disagrees:
It was not a loan. He gave me the money, and he was going to stay at my house, and the money was going to pay for the rent or whatever, and he was – I was going to work away, and he was going to stay there rent free.[2]
[2]T page 10 lines 9-12.
Presumably this reference is to the disputed balance of $3,380[3] because it is common ground that Williams refunded at least $11,000 to Gervasi,[4]
[3]Application for minor debt filed by Gervasi on 28 January 2021.
[4]T page 7 lines 23, 37; page 17 line 25.
The parties’ financial arrangements are egregiously vague and ill-defined. Nothing was committed to writing.[5] Gervasi’s version – or one of his versions was that `loan’ was `just a kind gesture’.[6] It was just to help her out’.[7] By then, the parties had been on friendly terms for about 18 months[8]. According to Williams Gervasi tried unsuccessfully to establish a sexual relationship.[9]
[5]T page 3 line 12 (Gervasi).
[6]T page 6 line 23.
[7]T page 4 line 16.
[8]T page 6 line 25 (Gervasi).
[9]T page 10 line 13.
Rent free
Williams is a self-employed registered nurse, who, from time to time, works away from Brisbane. At an uncertain time, seemingly towards the end of 2020, she was in far north Queensland for about 5 weeks.[10] Meanwhile Gervasi kept on eye on her house and her pets, but he did not continually live there, but he was `just sleeping there’.[11] Gervasi admitted that he stayed at Williams’ place `rent free’.[12] Williams described the $15,000 advance as `in lieu of rent.’[13]
[10]Annexure to Response filed 11 February 2021 paragraph 3.
[11]T page 8 line 34 (Gervasi).
[12]T page 8 line 24 (Gervasi}.
[13]Annexure to Response filed 11 February 2021 paragraph 2.
The amity did not last. On Williams’ return Gervasi began to press for immediate repayment of the balance of $3,380 – a unilateral attempt to add a term[14] to the original arrangement, which was relaxed and open-ended regarding time for repayment.
[14]As the adjudicator noted: T page 7 line 46.

Litigation begins

On 28 January 2021 Gervasi resorted to the tribunal, claiming $3,380 in debt:
I have lent the money in good faith and was assured that it would be paid back in a reasonable time. Only 2 payments have been made to the value of ... $14,300 total. The respondent has made outlandish claims against me hoping that she doesn’t have to pay me the money owing.[15]
[15]Application for minor civil dispute filed 28 January 2021 Part B.
Williams’ view was quite different:
It was not a loan. He gave me the money, and he was going to stay at my house, and the money was going to pay for the rent or whatever, and he was – I was going to work away, and he was going to stay there rent free. That was the original agreement. ... I didn’t have to pay the money back because it was supposed to be for rent. But because of the way he was, I thought I just want this person out of my life, so I just started paying it back, no questions asked.[16]
[16]T page 10 lines 9-12, 20-22, 44.
Response and counter-claim
On 11 February 2021 Williams filed a response seeking dismissal of Gervasi’s claim and counter-claimed `return of my white goods or compensation’.
With respect to the counter-claim Williams alleged:
I went away to Mornington Island for 5 weeks for work.[17] When I returned all my white goods had been removed from my property, all in good working order. 1 large fridge, 1 washing machine, 1 small bar fridge, 1 small freezer and a dryer. Mr Gervasi advised me that he put them on the footpath and people took them.[18]
[17]Initially Williamson thought she might be away for 12 months: T 11 line 17.
[18]Annexure to Response filed 11 February 2021 paragraph 3.
The Response itself does not specify the value of the white goods, but in the annexure Williams states[19]: `I feel that $3,300 is a fair price for the goods removed from my place’.
[19]In paragraph 8.

Hearing and decision

The tribunal heard and decided the dispute on 6 April 2021.
The adjudicator had considerable difficulty in ascertaining the terms of the `vague’[20] contract, if indeed the subject arrangements could be so described. Exasperated, he observed:
[I]n the absence of any written agreement, it’s very hard for me to make any – to draw conclusions about this ...[21]
[W]hile there’s a great deal of paper on the file, there’s very little that gives illumination to the facts of this case.[22]
[I]t reinforces the need for some sort of written agreement, even if it’s only brief letter or exchange of an email or something, setting out the terms on which money is exchanged between people and the purpose for which it’s given, because I’m now faced with Mr Gervasi saying that he loaned you this money out of the goodness of his heart after knowing you for a year to help you out and without any terms as to when it would be paid back. On the other hand ... you’re saying that he paid that on the basis of rent up to a year ... So in one case he’s not entitled to the money back, that is, if it was paid for rent. If it was a loan to you, then he is entitled to the money back, and I have to make a decision on the balance of probabilities ...[23]
[20]T page 17 line 30 (adjudicator).
[21]T page 11 lines 29-30.
[22]T page 18 lines 7-8.
[23]T page 12 lines 32-44.
It is at least arguable that the action might have been dismissed as legally unenforceable for uncertainty[24], or absence of a mutual intention to create an enforceable legal relationship[25]. It is not a formal agreement between commercial parties that courts usually strive to preserve.[26] On the contrary, it is difficult to imagine a more elusive, wholly unwritten arrangement. However, those are not questions that need be canvassed here.
[24]WTE Co-Generation v RCR Energy Pty Ltd^[ [2013] VSC 314 at [46].
[25]Ashton v Pratt [2015] NSWCA 12.
[26]Contrast Meehan v Jones (1982) 149 CLR 571 at 589.
In the event the adjudicator decided that:
I’m inclined to accept Ms Williams’ version of events, on the basis that she is a responsible professional person, and her conduct and manner throughout the process has been reasonable. Mr Gervasi has, at the same time, put his case as best he can, but I think he has failed at the threshold test of satisfying me on the balance of probabilities that the money that was paid by him to Ms Williams was paid as a loan.[27]
[27]T page 18 lines 22-27.
Accordingly Gervasi’s action was dismissed.
Williams’ counter-claim was rejected as insubstantial, particularly for the lack of any acceptable evidence of the value of the property in question. No other conclusion is arguable.[28] Williams does not seek leave to appeal.
[28]See T page 3 lines 7-9, page 12 lines 20-21, page 20 lines 4-12.
Gervasi seeks leave[29] to appeal
[29]As required by s 143 of the QCAT Act.
The decision turns on the adjudicator’s assessment of facts and credit. There is evidence upon which his decision could be made. There is nothing unreasonable about it, let alone anything that could be described as `glaringly improbable’ or contrary to compelling inferences.[30] Questions of fact and credit are the prerogative of a trial judge; that is his function[31]. An application for leave to appeal is not an opportunity to re-try the case presented at trial, or to `second guess’ the primary decision-maker. Rather, it is limited to a search for errors of law, if any, that may have resulted in injustice.[32] It is not nearly enough for an applicant for leave to entertain a subjective feeling of dissatisfaction. It is not an error of law to prefer one party’s version to the other, or to give less weight to evidence than a party thinks it should receive.
[30]LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 at [173]; Devries v Australian National Railways Commission [1993] HCA 78;(1993) 177 CLR 472 at 479; Abalos v Australian Postal Commission [1990] HCA 47;(1990) 171 CLR 167 at 178-179.
[31]Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[32]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2011] QCA 359 at [18]; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 at [19].
Resolution
No reasonably arguable appellable error has been shown, and I discern none. Therefore the application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.

Gervasi v Williams was an appeal against the dismissal of a claim for the balance of a loan. The respondent, Williams, counterclaimed for the return of chattels removed from the appellant's property. The trial judge dismissed both the claim and the counterclaim. The appellant then applied for leave to appeal against the dismissal of the claim, which was also dismissed. The dispute involved an agreement between the parties where the appellant advanced moneys to the respondent, who was a homeowner. In return, the appellant was authorised to occupy the respondent's premises while the respondent was away. The respondent partially refunded the moneys advanced, and the appellant sought the balance. The respondent counterclaimed for the return of chattels removed from the property.

The central legal issues were whether the moneys in question were rent payable to the respondent or the balance of a loan, and whether the appellant discharged the onus of proving the balance was owing. The court also needed to determine if the respondent's counterclaim for the return of chattels was substantiated by evidence. The court held that the onus of proof had not been discharged by the appellant, and that the respondent's counterclaim was dismissed due to lack of evidence. Consequently, the court dismissed the appellant's application for leave to appeal.

The reasoning of the court was that the appellant had failed to provide sufficient evidence to prove that the moneys were a loan and not rent. The court found that the appellant had not discharged the onus of proof, as the evidence provided was insufficient to distinguish between the loan and rent. Furthermore, the respondent's counterclaim was dismissed because there was no evidence to support the claim that chattels had been removed from the property. As a result, the application for leave to appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION	Gervasi v Williams [2022] QCATA 90
PARTIES:	GUISEPPE GERVASI
(applicant)
v
MARGARET WILLIAMS
(respondent)
APPLICATION NO:	APL139-21
MATTER TYPE:	Other minor civil dispute matters
DELIVERED ON:	1 July 2022
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Dr J R Forbes
ORDERS:	The application for leave to appeal is dismissed.
CATCHWORDS:	APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – action for debt – counter-claim for chattels removed - where moneys advanced to homeowner – where those moneys refunded in part – where action for balance unpaid – where person advancing moneys authorized to occupy payee’s premises in return for supervision while homeowner absent – whether moneys in issue are rent payable to homeowner or balance of loan - whether onus of proof discharged by claimant of balance – where onus not discharged – where counter-claim dismissed for lack of evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 143 Abalos v Australian Postal Commission (1990) 171 CLR 167 Ashton v Pratt [2015] NSWCA 12 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Devries v Australian National Railways Commission 177 CLR 472 Drew v Bundaberg Regional Council [2011] QCA 359 Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330 LemongroveServices Pty Ltd trading as Reimer Winter Williamson Lawyers and Anor v Rilroll Pty Ltd and Ors [2019] NSWCA 174 Meehan v Jones (1982) 149 CLR 571 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 WTE Co-Generation v RCR Energy Pty Ltd^[ [2013] VSC 314
APPEARANCES & REPRESENTATION:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)