Gervasi v Williams - [2022] QCATA 90

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…

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 Gervasi v Williams

Details

AGLC: Gervasi v Williams [2022] QCATA 90
Case: [2022] QCATA 90
Decision Date: 1 July 2022

CaseChat Overview and Summary

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.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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.

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)