Madgwick v Creighton

[2012] QCATA 266

CITATION: Madgwick v Creighton [2012] QCATA 266

PARTIES:	Kathleen Madgwick (Applicant/Appellant)
v
Robin Ann Creighton trading as Raine & Horne Tin Can Bay (ABN 78 569 532 149) (Respondent)

APPLICATION NUMBER: APL209-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Horneman-Wren SC, Deputy President

DELIVERED ON: 13 December 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Leave to appeal is granted.

2.    The decision and order of 22 June 2012 be set aside.

3.    Ms Madgwick pay Raine & Horne Tin Can Bay the sum of $3,164.47 comprising:

a.    $2,550.00 for claim;

b.    $467.50 for interest to 20 June 2010;

c.    $95.00 filing fee;

d.    $39.50 bailiff’s fee for service;

e.    $12.47 CITEC transaction fee.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the respondent sought to recover monies due from the appellant under a loan agreement – where the parties disagreed on the amount due – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009, s 32

Cachia v Grech [2009] NSWCA 232
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This is an appeal of a decision in the Tribunal’s minor civil dispute jurisdiction.  On 20 June 2012 an Adjudicator of the Queensland Civil and Administrative Tribunal (‘the Tribunal’) ordered Ms Kathleen Madgwick to pay Ms Robin Creighton trading as Raine & Horne Tin Can Bay an amount of $4,229.47.  That total amount comprised: $3,450.00 for claim; $632.50 for interest to the date of the decision; $95.00 for the filing fee of the application; $39.50 for the bailiff’s service fee; and a CITEC transaction fee of $12.47.

2. Ms Madgwick seeks the Tribunal’s leave to appeal against that decision.

Background to the Claim

1. The claim brought by Ms Creighton against Ms Madgwick arose from a loan advanced by Ms Creighton to Ms Madgwick for the purchase of a motor vehicle.  The amount of the loan was $9,000.00.  At the time the loan was advanced to Ms Madgwick she was employed in Ms Creighton’s business.

2. Ms Madgwick made some periodical repayments of the loan.  However, the total of the loan was not repaid by her.  The total amount which remained unpaid was a matter of dispute between the parties.

The Proceedings before the Tribunal

1. In the proceedings before the Tribunal, evidence was given by both Ms Creighton and Ms Madgwick.  That evidence concentrated upon payments said by each to have been made in repayment of the loan.  Ms Creighton, in her evidence, detailed the following payments as having been made:

Date	Payment Amount
29 February 2008	$3,000.00
16 May 2008	$1,000.00
30 March 2009	$50.00
2 April 2009	$50.00
21 April 2009	$50.00
6 May 2009	$50.00
20 May 2009	$50.00
22 June 2009	$50.00
23 July 2009	$100.00
6 August 2009	$50.00
21 August 2009	$50.00
3 September 2009	$50.00
17 September 2009	$50.00
1 October 2009	$50.00
12 November 2009	$50.00
24 December 2009	$50.00
8 January 2010	$50.00
22 January 2010	$50.00
18 February 2010	$50.00
4 March 2010	$50.00
19 March 2010	$50.00
6 April 2010	$50.00
15 April 2010	$50.00
30 April 2010	$50.00
13 May 2010	$50.00
27 May 2010	$50.00
24 June 2010	$50.00
8 July 2010	$50.00
22 July 2010	$50.00
5 August 2010	$50.00

1. When asked by the Adjudicator for the total of those payments, Ms Creighton answered ‘$5,550.00’.  She was incorrect in her calculation.  The payments listed above total $5,450.00.

2. Ms Creighton also tendered a letter provided to her by Ms Madgwick dated 27 March 2009.  Ms Madgwick objected to the tender of that letter on the basis that when she had written it she hadn’t checked her bank account and the amount which she had written on the letter was incorrect.  The Adjudicator admitted the letter notwithstanding the objection of Ms Madgwick on the basis of her admission that she was its author.

3. The letter was in the following terms:

   Dear Robin,

   I acknowledge that I obtained a personal loan from you of the amount of $9000.00.  I have paid $5000.00 off this debt and acknowledge that $4000.00 plus interest is payable to you.

   I request that at this present time I make a regular payment of $25.00 per week with a review in 6 months.  If at any time I find myself in different circumstances I will pay you off quicker.

   I thank you very much for the loan and assure you that I will not default.

4. In her response filed in the proceedings, Ms Madgwick had annexed various bank statements which identified transfers made to an account of Ms Creighton in repayment of the loan.  In the course of Ms Madgwick giving evidence, the Adjudicator identified, correctly, that of the repayments identified by Ms Madgwick in those bank statements, all had been brought to account by Ms Creighton in her calculations, except for an amount of $1,000.00 identified as having been paid on 5 March 2008.  In her evidence Ms Creighton had stated that this payment was for rent and not in repayment of the loan.  Ms Madgwick disputed that this was a rental payment, but was otherwise unable to identify what the payment was for.  Clearly, it went to an account other than that to which all the other repayments of the loan had been transferred.

5. In addition to the repayments identified in her bank statements, Ms Madgwick stated that she had repaid a further $2,000.00.  However, Ms Madgwick did not provide any other evidence in support of her assertion that a further $2,000.00 had been repaid.

The Adjudicator’s Decision

1. In his decision, the Adjudicator resolved the discrepancies in the evidence of the two parties as to the extent of the repayments made in the following way:

   I have heard evidence from the Applicant or Plaintiff, Ms Creighton and I have heard evidence from Ms Madgwick.  From the evidence of Ms Creighton there was no dispute in relation to payments that have been outlined in the defence of Ms Madgwick and, during her evidence, the Tribunal took her through all the payments.  The only payments in dispute were on 5 March 2008 where the amount was for $1,000.00 but even on the evidence of Ms Madgwick [that] was paid to a different account than the loans were usually paid to.  That in my view would be an [indication] that it was for something else.

   …

   On the whole of the evidence I am satisfied that the payment on 5 March, taking into account the admission in Exhibit 1 that $4,000.00 was owning as at 23 March 2009 [sic] its possible that the 5 March 2008 payment of $1,000.00 ... did not relate to the loan but related to other things in relation to Raine & Horne and to Ms Madgwick.

   Notice was not to Ms Madgwick but to some company; however she acknowledged on 27 March that she owed the amount of $4,000.00 and that she promised to make regular payments …

   I find on the balance of probabilities that all the payments that Ms Creighton has outlined totalling $5,500.00[1] were made and that $1,000.00 outlined in the defence as being a payment for the loan was not in fact a payment on that loan for the reasons that I have outlined, the evidence that I have received, the probability of it being something else because it is into a different account and the admission in Exhibit 1 that only that $4,000.00 was outstanding.

   [1]As set out above, Ms Creighton had in fact, nominated $5,550.00 as the total amount repaid.

2. The Adjudicator went on to order that $3,450.00 be paid in respect of the claim.  It is apparent that the Adjudicator fixed on that sum as the balance identified by Ms Creighton to be outstanding after the deduction of the $5,550.00 in repayments as identified by her.

The Proposed Grounds of Appeal

1. In her application for leave to appeal Ms Madgwick raises five grounds of contention.  First, she claims that she was denied natural justice in that documents were tendered in the course of the hearing which she had not been provided beforehand.  Secondly, that the Court took into account her letter of 27 March 2009 (Exhibit 1) but in so doing neglected to take into consideration the amount of money that was stated in that letter as being owed and that there was clear evidence that $1,550.00[2] had been paid subsequently.  Thirdly, that the Adjudicator erred in not taking into account the further identified payment of $1,000.00 or the $2,000.00 which Ms Madgwick gave evidence that she had paid.  Fourthly, that Ms Madgwick had a claim being investigated by Fair Work Australia which was far greater than the amount claimed by Ms Creighton, and fifthly, she failed to see why she was ordered to pay costs when the amount of the claim which had been made was greater than that awarded in the decision.

   [2]For reasons which appear below the evidence established that only $1,450.00 had subsequently been repaid.

Consideration

1. The question of 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?[3]  Is there a reasonable prospect that the applicant will obtain substantive relief?[4]  Is leave necessary to correct a substantial injustice to the applicant caused by some error?[5]

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

   [4]        Cachia v Grech [2009] NSWCA 232 at 2.

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

2. It is clear from the Adjudicator’s reasons that he proceeded on the basis that there was an acknowledgment of a debt in the amount of $4,000.00, as stated in Ms Madgwick’s letter of 27 March 2009 (Exhibit 1).  It was entirely appropriate for the Adjudicator to proceed on that basis.  However, having done so, the Adjudicator then relied upon the calculations of Ms Creighton as to the extent of the payments made, totalling $4,000 as at 27 March 2009, and consequently the balance of the loan outstanding at that time would be calculated at $5,000, not $4,000.00 as acknowledged in the letter of 27 March 2009.  At that point the Adjudicator fell into error.

3. On Ms Creighton’s own evidence there were 28 payments received by her subsequent to Ms Magdwick’s letter of 27 March 2009.  On Ms Creighton’s own evidence, those 28 payments totalled $1,450.00.  In tendering Exhibit 1, Ms Creighton in no way challenged the accuracy of its content either as to the amount of the debt which had been paid or the amount which remained payable.

4. Having found the amount outstanding as at 27 March 2009 as being $4,000.00 (as acknowledged by Ms Madgwick) the Adjudicator ought to have found that the amount remaining unpaid after the further payments of $1,450.00 was $2,550.00, not $3,450.00 (as found and ordered to be paid).

5. The Adjudicator’s error as to the amount that should be ordered in respect of the claim also affected his decision in respect of interest.  The Adjudicator allowed interest at the rate of 10% for a period of 22 months.  Adopting that methodology, interest on an outstanding claim of $2,550.00 would total $467.50.

6. Accordingly, there is a reasonably arguable case of error in the primary decision giving rise to prospects that the Applicant would obtain substantive relief on appeal.  Furthermore, leave is necessary to correct the substantial injustice which would flow to the Applicant because of that error.

7. There is no merit in Ms Madgwick’s other proposed grounds of appeal.

Orders

1. Leave to appeal is granted.

2. The decision and order of 22 June 2012 is set aside.

3. The appellant is to pay the respondent the sum of $3,164.47 comprising:

   a.$2,550.00 for claim;

   b.$467.50 for interest to 20 June 2010;

   c.$95.00 filing fee;

   d.$39.50 bailiff’s fee for service;

   e.$12.47 CITEC transaction fee.