Lopez v Lopez

[2018] QCATA 158

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lopez v Lopez  [2018] QCATA 158

PARTIES:

DAVID LOPEZ
 (appellant)

v

CLEMENT LOPEZ

(respondent)

APPLICATION NO:

APL123-18

ORIGINATING APPLICATION NO/S:

MCDO108 OF 2018 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

25 October 2018

HEARING DATE:

11 October 2018

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

ORDERS:

The application for leave to appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPLICATION FOR LEAVE TO APPEAL – GENERAL PRINCIPLES – nature and limitations of applications for leave to appeal – minor civil claim – whether payments by respondent to applicant were gifts or loans – where primary tribunal found they were loans – where decision turns on credit – findings of fact and credit matters for primary decision maker – where evidence exists to support findings – no appellable error demonstrated

Queensland Civil and Administrative Appeals Tribunal Act (Qld) sections 32, 142(3)

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coulton v Holcombe (1986) 162 CLR 1
Damberg v Damberg & Ors [2001] NSWCA 87
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Grey v Grey (1677) 36 ER 742
Robinson v Corr [2011] QCATA 302
Snell v Morgan [2011] QCATA 316
Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

The 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

1. On 7 February 2018 the respondent Clement Lopez (Clement) filed a Minor Civil Claim against his son, David Lopez (David), the present appellant, on this basis:

   I lent my son [David] an initial sum of $10,000 in or about 2014, with him undertaking to immediately begin repaying it by regular instalments, which he failed to do. Then some 2 years later he borrowed a further $5,000 and promised to repay that amount in full within 2 weeks. [He] failed to pay anything in respect of the money loaned to him other than $50 on 23 October 2017 only after a letter of demand was sent to him.

2. The claim is for $15,698, comprising principal ($14,950) and interest ($748).

3. The matter was heard at Southport on 9 May 2018, when it was ordered that David pay Clement $15,000 within 14 days.

4. The reason for limiting the award to $15,000 is unclear, but in view of the fact that David, not Clement, is the appellant, that question need not be pursued.

5. The adjudicator found that there was an initial advance of $10,000 as alleged. Indeed, so much is admitted,[1] but the additional payment of $5,000 is denied.[2] Clement says that he obtained a receipt for $5,000, but could not produce it, because (so he alleged) David `went to my house and stole’ relevant papers.[3]

   [1]Transcript of hearing 9 May 2018 (T) page 7 lines 16-30.

   [2]T page 9 lines 5-23.

   [3]T page 7 line 37; page 17 line 40. Nothing daunted, the appellant castigated his father as a pathological liar and a criminal: page 16 line 45..

6. While David admits that Clement paid him $10,000, he (David) insists that it was a gift, not a loan.[4] Clement says that as a pensioner – a claim not contradicted – he could not afford to make a gift of such a large amount.[5]

   [4]T page 8 line 44; page 9 line 2.

   [5]T page 14 line 22.

7. In the course it has taken this case presents these issues: (a) Was the admitted payment of $10,000 a gift or a loan? (b) Was the alleged addition of $5,000 actually paid? (c) If `Yes’ to (b), was it a gift or a loan?

   $10,000 - Gift or Loan?

8. The adjudicator held that it was a loan:

   `I find that there was an intention to create legal relations, and an agreement to repay. ...They are large sums of money. They are not of the nature, I believe, of a gift and they must be repaid’.[6]

   [6]T page 20 line 47; page 21 lines 1-2.

9. Evidently the adjudicator considered that there was sufficient evidence to rebut any presumption of advancement.[7]

   [7]Damberg v Damberg & Ors [2001] NSWCA 87.

10. This internecine case turns on issues of credit. Like the Lord Chancellor in Grey v Grey[8] the adjudicator was in the invidious position of dealing with

    ... the concerns of a family, in which I would be glad to avoid the deliverance of any opinion, because I foresee that a victory on either side can never produce the peace of it.

    [8](1677) 36 ER 742; cf T page 19 line 20 (adjudicator). Also see footnote 3, above.

11. There are some features of David’s case that may have gone to credit. In response to David’s denial[9] that he received a further $5,000, Clement tendered a bank record showing a withdrawal of that amount on 17 July 2015.[10] Accordingly to Clement, David accompanied him to the bank at that time.[11] Questioned about a payment of $50 to Clement in response to a letter of demand[12], David claimed – somewhat implausibly it may be thought – that it was not a miniscule repayment of the alleged loan to David, but rather a loan by David to his father.[13]

    [9]T page 18 lines 19-20.

    [10]T page 15 lines 1-3.

    [11]T page 15 line 9.

    [12]Letter Gold Coast Community Legal Centre to appellant 19  September 2017

    [13]T page 18 lines 27-39.

    Was an additional $5000 paid?

12. As the finder of fact, the adjudicator answered this question in the affirmative. There was evidence on which that finding could reasonably be made. A relevant bank record has already been noted.

    Was the additional $5000 a loan?

13. Despite David’s denial of receipt, the adjudicator found that it, too, was a loan.

    Appellant’s submissions

14. David now seeks leave[14] to appeal. He submits (a) that Clement had no urgent need for money for his knee operation (no such submission was made at the hearing) (b) that Clement initiated the purchase of subject unit; (c) that the money was a gift; and (d) that the unit was purchased for Clement’s benefit. (However, David and his wife, not Clement, lived there, and when the unit was sold, David was the vendor.[15])

    [14]As required by QCAT Act s 142(3).

    [15]T page 18 lines 11-12; page 11 line 43, page 9 line 36, page 12 line 30.

    Nature and Limitations of an Application for Leave

15. The appellant’s submissions are simply an attempt to run the trial again, with the addition of some evidence that could have been given before the adjudicator, but was not. For reasons about to be given, that is not a permissible approach to an application for leave to appeal.

16. It is desirable to explain to appellants, particularly those not legally represented, that the need for leave reflects a legislative policy that first-instance decisions of the tribunal, particularly in minor civil disputes, should normally be final. The trial is not just a `preliminary skirmish’ before a reprise on appeal.[16] An appeal is not an occasion to repeat or reargue evidence rejected by the trial judge, or to present material that could have been led at the trial, but was not.[17]

    [16]Coulton v Holcombe (1986) 162 CLR 1 at 7, per Gibbs CJ, Wilson, Brennan and Dawson JJ.

    [17]Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

17. It is not nearly enough for an appellant to express disappointment, or a subjective feeling that justice has not been done.[18] The onus in on an applicant for leave to demonstrate an arguable error of law causing a substantial injustice, or that the primary tribunal has acted in flagrant disregard of evidence clearly established, or has reached a finding of fact, or as to credit, that is `glaringly improbable’.[19] Findings on credit are seldom interfered with, particularly when based on the demeanour of the parties.[20] It is recognised that trial courts have the considerable advantage, not enjoyed by a court of appeal, of seeing and hearing the witnesses giving their evidence, presenting their arguments, and conducting themselves in court.

    [18]Robinson v Carr [2011] QCATA 302 at [7].

    [19]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844.

    [20]Fox v Percy (2003) 214 CLR 118 at 127.

18. The assessment of credit is, within reason, a prerogative of the primary judge. That is his task. It is not a ground of appeal that he preferred one version of the facts to another, or gave less weight to one party’s case than the latter thinks it deserves. There is no legal error in making a decision on which other reasonable minds may differ.[21] Findings of fact or credit will not be disturbed when, as here, they have rational support in the evidence, even if another reasonable view is available.[22] It cannot fairly be said that the present finding is unreasonable, let alone `glaringly improbable’.

    [21]          Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

    [22]Fox v Percy, above at 125-126.

    Resolution

19. The appellant has not demonstrated any appellable error in the primary decision, nor do I discern any. There was evidence upon which the adjudicator was entitled to act as he did, and accordingly it is not for this tribunal to interfere. The application for leave to appeal must be dismissed.

    ORDER

20. The application for leave to appeal is dismissed.