Jones v McCoist
[2011] QCATA 212
•16 August 2011
| CITATION: | Jones v McCoist [2011] QCATA 212 |
| PARTIES: | Mr Tony Robert Jones (Applicant/Appellant) |
| v | |
| Ms Julie Ann McCoist (Respondent) |
| APPLICATION NUMBER: | APL057-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 16 August 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted.[1] The appeal is allowed.[2] The proceeding is remitted to the minor civil disputes jurisdiction to be reheard by another adjudicator / member.[3] |
| CATCHWORDS: | Minor Civil Dispute – whether monies advance constituted a loan or pooling of resources in a de facto relationship – whether Tribunal has jurisdiction to hear the application Queensland Civil and Administrative Tribunal Act 2009, ss 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 8 June 2010 Ms McCoist filed an application for a minor civil dispute – minor debt in the Tribunal claiming $15,800 from the applicant, Mr Jones. The basis of the claim is in respect of an oral loan agreement Ms McCoist says she made with Mr Jones in June 2009 when she lent to him a total of $17,100.00. She contends that Mr Jones agreed to repay the loan in instalments of $100.00 per week and in addition he would pay instalments off her car loan[1].
[1] Application filed 8 June 2010 Part C.
Mr Jones, although accepting that he did receive the payment of $17,100.00 into his bank account, says that this was a gift. He also contends that he and Ms McCoist were in a de facto relationship, having commenced the relationship in December 2008.[2] What is not in contention is that of the money deposited into Mr Jones’s account, $13,839.52, was utilised to pay his debts. Although he says that he could have managed to repay his debts by mid 2010, he certainly received a benefit from the financial assistance offered by Ms McCoist.[3]
[2] Response filed 17 August 2010.
[3] Affidavit filed with the Response paragraph 6.
Therefore the issue for determination by the Tribunal on the application was whether the parties had entered into the loan agreement as alleged by the applicant or whether the advance was merely a gift.
The application was listed for hearing on 4 November 2010. At the conclusion of the hearing the Tribunal ordered that Mr Jones pay to Ms McCoist the sum of $10,000.00. The rationale for this order is a little confusing. It is unclear whether a finding was made that the money was given in contemplation of a long term relationship, or whether it was a loan despite the learned Adjudicator saying “it does not equate to a simple debt recovering (sic) matter of a liquidated demand”. It does seem that there is an acceptance by the learned adjudicator that money was paid to pay out Mr Jones’ debts but part of it was used for the parties’ combined benefit. The learned Adjudicator then seemed to make an adjustment to take these matters into account and made the final order. He did not necessarily reject the contention that it was a loan nor did he make any finding that it was a gift. The fact that he ordered a payment of a sum of money does suggest the former. However, if that was the case, the amount is not based on any finding as to the amount of the loan agreement.
From that decision Mr Jones filed an application for leave to appeal or appeal on 28 February 2011. His grounds of appeal are:-
a)QCAT did not have jurisdiction to hear and determine the case.
b)No evidence was presented by Ms McCoist to justify the decision.
c)Mr Jones was unable to present his defence or witnesses.
d)General complaint about the conduct of the hearing.
e)Other matters which include various factual disputes between the parties.
As this is an appeal from the minor civil disputes jurisdiction, leave to appeal is necessary.[4] The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[4] Section 142(3).
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[6] Cachia v Grech [2009] NSWCA 232 at 2.
[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[8]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The jurisdictional issue arose because Mr Jones contends that he and Ms McCoist were in a de facto relationship. Therefore any dispute between them is governed by the provisions of the Property Law Act.[9] During the hearing the learned Adjudicator did make observations about whether QCAT had jurisdiction to hear the application given the relationship between the parties. Although those observations were made there was no critical analysis of the facts to determine whether or not such a relationship existed[10].
[9] Part 19.
[10] Acts Interpretation Act 1954, s 32DA.
However, before one gets to a consideration of whether the dispute is one of adjustment of property rights under the Property Law Act, in which case the Tribunal clearly does not have jurisdiction, there needs to be a determination of whether the advance to Mr Jones was a loan, repayable on terms or demand as is claimed in Ms McCoist’s application or a gift. It seems to me the only relevance of the relationship in these circumstances is that it may give support to Mr Jones’ contentions.
The proceeding is not concerned about division of property or pooling of assets for their joint benefit. If Ms McCoist’s evidence is accepted then I see no reason why the loan would not be repayable and an order could be made within the jurisdiction conferred on the Tribunal.[11] The mere fact that the parties may be in a de facto relationship does not of itself oust the jurisdiction of the Tribunal.
[11] QCAT Act, s 12 and the definition of Minor Civil Dispute in Schedule 3.
[10] The relevant background facts are that the relationship between the parties commenced in late 2009. Mr Jones says that Ms McCoist moved into his house at Wynnum in December 2008[12] and it was during the relationship that the money was paid to him to clear his debts. It is not contested that in August 2009 Mr Jones moved into a house with Ms McCoist at Churchill in Ipswich together with Ms McCoist’s brother and sister. They continued to reside together at the Churchill address until February 2010 when the relationship ended and Mr Jones moved out.
[12] Transcript page 3 L25.
[11] There is some dispute as to whether they were living together at the Wynnum address. Although Ms McCoist admits spending time there she says she was splitting her time between Mr Jones’ house and her mother’s place. She was paying rent to her mother and her address was at her mothers.[13] However, from December 2008 Ms McCoist’s son was living with Mr Jones.
[13] T32 L20.
[12] They both say they were engaged to be married with Ms McCoist having bought an engagement ring from the proceeds of her common law settlement in June 2009. It was intended that they would have an engagement party at the Churchill property but that never eventuated. There was no pooling of assets as such nor was there pooling of income. The chattels that Ms McCoist said she did buy such as a television, washing machine, dryer and other chattels were retained by Mr Jones. There seems little dispute, on a perusal of the transcript, that Mr Jones did use part of the advance to clear his personal debts.
[13] All of that evidence was before the learned Adjudicator and he indicated that it did seem at face value that Ms McCoist and Mr Jones were in a de facto relationship. Ms McCoist herself made reference to them being in a de facto relationship. However the learned adjudicator did not seem to address directly or make any finding as to whether there was a legally enforceable contract between the parties or the terms of any such agreement. There was no finding that it was a gift. He simply made an order that the money be paid. It is somewhat unsatisfactory that no specific findings were made about the issues that were specifically before him.
[14] As I have indicated the relationship itself may give support to Mr Jones’ contention that the advance was a gift as opposed to a loan but these questions of fact require a determination. Even if they were in a de facto relationship[14] this does not create an automatic bar to a finding that a loan agreement was entered into between them.
[14] As defined in s 32DA of the Acts Interpretation Act 1954.
[15] It seems the learned Adjudicator was distracted by the relationship rather than the contentions raised in the application. Although he did make some observations about the transaction in his decision the findings were equivocal.
[16] If the conclusion that the respondent should pay to the applicant an arbitrary figure of $10,000.00 was based on, it seems, some adjustment of property rights then there is no jurisdiction to make such an order. The only basis upon which Ms McCoist can succeed is if there is a finding that there is a loan agreement between the parties.
[17] The learned Adjudicator was in error in not making any specific findings to underpin the basis on which he made the order. As a consequence of this error leave to appeal must be granted and the appeal is allowed. As the appeal is decided on a question of law I propose to remit the matter to the minor civil disputes jurisdiction to be reheard before another adjudicator / member.[15]
[15] QCAT Act, s 146.
4
0
0