Graham Parlour v Robert Carlile

[2021] QCAT 358

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Graham Parlour v Robert Carlile [2021] QCAT 358

PARTIES:

GRAHAM PARLOUR

(applicant)

v

ROBERT CARLILE

(respondent)

APPLICATION NO/S:

MCDO453-19

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

15 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Stroud

ORDERS:

The Respondent is to pay to the Applicant the amount of $10,120.50.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – claim for debt or liquidated demand of money – where loan between friends – where no formal loan agreement entered into – whether debt is outside limitation period – whether limitation period can be extended

​Limitation of Actions Act 1974 (Qld), s 10(1)(a), s 35(3)
Property Law Act 1974 (Qld), s 11
Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3
Australian Woollen Mills Pty Ltd v Commonwealth (1954) 93 CLR 546
Executor, Trustee & Agency Co of South Australia Ltd v
Ogilvie v Adams [1981] VR 1041
Guzman v Bird [2021] QCAT 65
Thompson (1919) 27 CLR 162

Applicant:

Self-represented

Respondent:

Self-represented

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

What is this matter about?

1. Mr Graham Parlour and Mr Robert Carlile were friends and work colleagues. On 17 May 2012, Mr Carlile was in financial difficulty and Mr Parlour lent him $18,000. It was a loan between friends with no agreed terms.  Between 2014 and 2018 Mr Carlile made various payments of differing amounts ceasing payment on 21 April 2018. Neither party disputes that $10,000 of the loaned amount has not been repaid. Mr Carlile says he has not repaid this money as he no longer has the financial capacity, is unemployed and on the aged pension.

2. On 13 March 2019, Mr Parlour filed a Minor Debt Application in the Tribunal claiming payment of $10,000 (the debt) and costs. The matter has a lengthy history in the Tribunal and was heard before me on 17 August 2021. Both parties attended the hearing in person.

Jurisdiction

1. Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) describes a minor civil dispute, amongst other things, as “a claim to recover a debt or liquidated demand of money, of up to the prescribed amount”.  The prescribed amount is currently $25,000.  

2. A debt or liquidated demand has been described as a sum of money that can be calculated by reference to a formula, schedule or some other yardstick by which the debt or sum payable can be readily calculated. 

3. I am satisfied that Mr Parlour’s claim is a debt over which the Tribunal has jurisdiction. 

   Limitation of Actions

4. During the hearing Mr Carlile raised no arguable defence regarding the debt, in fact he openly admitted he owed Mr Parlour the amount claimed. Whilst both parties were vague on the details as to why the loan was required (no doubt given the passage of time), both did agree that when the money was lent there was no agreed terms for repayment. It was, it seems, a loan between friends to be repaid when Mr Carlile had sufficient funds.

5. Given the above facts it would seem straightforward that an order should be made in favour of Mr Parlour for payment of the debt by Mr Carlile.

6. However, before making the order I must be satisfied that Mr Parlour is not statute barred in claiming payment of a loan made in 2012.

Is the debt statute barred?

1. The issue of enforcement of a loan without certainty of terms and consideration of limitations of actions was recently considered in the Tribunal decision of Guzman v Bird [2021] (Guzman). A succinct summary of the law in relation to the statute of limitations is set out commencing at p. 17:

   [17]A legally enforceable agreement (contract) requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.[1] The terms must be certain, and the parties must have capacity to contract. 

   [18]Most contracts need not be in writing, with some exceptions, including section 11 of the Property Law Act 1974 (Qld) (“PLA 1974”) that requires an agreement creating an “interest in land” to be in writing.

   [19]Loans between family members of friends are not commonly formalised in a written loan agreement and often do not stipulate when or how the loan is to be repaid.   Commonly, parties to such arrangements have difficulty establishing that they have an enforceable contract because it is difficult to prove an intention to be bound by the promise to repay and because the terms are not certain.

   [20]If it is established that the arrangement is a loan, and not a gift, then without a finite repayment date or a formal loan agreement, the loan is considered a “loan payable on demand”.

   [21]When a loan is payable on demand, the lender has an immediate right to sue for recovery of the debt, and the lender will only have six years to pursue the borrower for the debt,[2] commencing on the date of the advance.[3]

   [22]The limitation period will “re-start” upon acknowledgement or confirmation by the borrower of the debt, provided that the confirmation “supersedes the old debt entirely” and goes beyond a mere promise to pay an existing debt.[4]   An agreement to forbear from suing on a loan may be taken to suggest that the parties wish to put their relationship on a new footing.

   [23]Section 35(3) of the Limitation of Actions Act 1974 (Qld) provides that:

   35(3) Where a right of action has accrued to recover a debt or other liquidated pecuniary claim…and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.

   [1]Australian Woollen Mills Pty Ltd v Commonwealth (1954) 93 CLR 546.

   [2]Section 10(1)(a) of the Limitation of Actions Act 1974 (Qld).

   [3]Ogilvie v Adams [1981] VR 1041.

   [4]Executor, Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162 per Isaacs J at 170 – 171.

2. The effect of section 35(3) of the Limitations of Actions Act 1974 (Qld) is that it provides that the time period to recover a debt can be extended on the acknowledgement or part payment of a debt by the debtor and thereby by restarting the limitation period from the time of acknowledgement or part payment.

   Emphasis Added.

3. At the hearing both parties agreed that Mr Carlile made multiple part payments with the last part payment being made on 21 April 2018. In accordance with section 35 (3) of the Limitations of Actions Act 1974, the time period to recover the debt restarted six years from the date of the last payment made on 21 April 2018. I am therefore satisfied Mr Parlour has filed his claim within the time limitation period and is not statute barred from recovering the debt.

Orders

1. The Respondent is to pay to the Applicant the amount of $10,120.50.