McCoist v Jones
[2012] QCATA 118
•26 April 2012
| CITATION: | McCoist v Jones [2012] QCATA 118 |
| PARTIES: | Julie Anne McCoist (Applicant/Appellant) |
| v | |
| Tony Robert Jones (Respondent) |
| APPLICATION NUMBER: | APL405-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 26 April 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – primary decision turning on findings of fact and credit – whether finding contrary to evidence – leave refused Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(i) |
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
The question in this case is whether a payment of $17,100 by the Applicant, Julie Anne McCoist to the Respondent, Tony Robert Jones, was by way of gift or loan.
The original hearing took place on 4 November 2010, when Jones was ordered to pay McCoist the sum of $10,000. Upon an appeal by Jones the Tribunal ordered a rehearing[1]. The Tribunal subsequently dismissed McCoist’s claim.[2] McCoist now seeks leave[3] to appeal.
[1]Jones v McCoist [2011] QCATA 212; 16 August 2011.
[2]McCoist v Jones [2011] QCAT 498; 5 October 2011.
[3]As required by the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 142(3)(a)(i).
McCoist’s Case
The parties met in September 2008, and began living together in Jones’ residence at Wynnum some 3 months later. Soon afterwards McCoist purchased and wore an engagement ring, and advertised their engagement on the internet “Facebook” site.[4] But after a brief separation in October 2009, the relationship came to an end in February 2010.
[4]T 23.
When the parties met, Jones was burdened with debts incurred by or for another woman with whom he had lived for some time. According to McCoist, she lent him $15,000[5], and a further $2,100 to clear his debts, so that they would be in a position to buy a house together. It is undisputed that the advances were respectively made on 3 and 5 June 2009, after McCoist received the proceeds of a WorkCover claim. Apart from bank records evidencing the mere facts of those payments, there is no documentation of the alleged loan.
[5]“OK I will loan you some money”: T 5. See also T 8, T 9, T 14.
According to McCoist it was only after their final, acrimonious separation that Jones “decided to say it was a gift”.[6] Between 16 and 22 February 2010 McCoist sent several text messages to him demanding payment, and asserting that “it was never a gift”.[7]
McCoist: Only a simpleton would give a gift of $17,000.
Presiding Member: When people are in relationships they do a whole lot of things ... in certain categories of relationships there is an inference that ... you are not entering into ... legally enforceable transactions.”[8]
[6]Transcript of rehearing (“T”) 5 October 2011 page 13.
[7]Affidavit of Tony Robert Jones, 13 August 2010.
[8]T 29.
Early in the hearing Jones said that he would rely inter alia on the transcript of the original hearing. Relevant statements recorded in the course of and ancillary to a proceeding are admissible in civil courts[9]; they may be a useful source of admissions or prior inconsistencies. However, one readily appreciates that the learned Member, dealing with unrepresented parties, was anxious to avoid tedious repetition of material (peppered with irrelevancies) currently being presented to her.
[9]Evidence Act 1977, s 92(4)(c).
McCoist says that when she went to her bank to obtain $15,000 for Jones, she told the teller that it was for a loan, and the teller advised her to use a bank transfer rather than a cash withdrawal, so as to generate some evidence. She says that she took that advice.[10] However, McCoist’s mother, Mrs Simpkins, agreed that Jones’ bank records showed a cash deposit of $15,000[11], and McCoist, who improperly interrupted her mother’s evidence several times[12], did not dispute that evidence. The bank records do not enhance the Applicant’s attempted self-corroboration.
[10]T 8.
[11]T 38-39, and copy statement of account, R T Jones, CBA Garden City Qld, page 3 of 8, entries for 3 and 5 June 2009. Received in evidence at T 46.
[12]See reprimands by the Presiding Member at T 36, 37, 40.
It is common ground that, during cohabitation, Jones paid 8 or 9 instalments towards the purchase of McCoist’s car[13] and that, when they separated, Jones accepted responsibility for the rent of a house they had leased at Churchill, Ipswich. But according to McCoist, these were not indicia of a domestic understanding to pool assets, but rather part-repayments of the alleged loan.[14]
[13]T 9, T 22, T 25.
[14]T 10, T 11-12.
Presiding Member (to Simpkins): Now were you present at any of their discussions as to how the loan would be paid off?
Simpkins: Well no, a lot of it was what Julie told me, but on occasions when Julie was telling me Tony Jones was there and didn’t deny any of it....
Presiding Member: Actually using the words “repayment of the loan, or was it just talking about paying - ?
Simpkins: Well no, repaying the car payments
Presiding Member: Paying the car payments?
Simpkins: Car payments.
Presiding Member: All right, so there was no discussion you can recall where Julie said to Tony in your presence, “This money is the repayment of your loan?
Simpkins: No ... It was about the car payments.[15]
[15]T 35-36.
According to McCoist, a friend, Bronwyn Burgess, was present on one occasion when she (McCoist) told Jones: “I will loan you some money”.[16] Asked by the Presiding Member whether Burgess had provided a statement, or would testify to the Tribunal, McCoist, to the understandable surprise of the Member, answered: “No”, because her evidence was “only hearsay”.[17] This evidentiary restraint was exceptional. Generally the Applicant’s case was well peppered with hearsay, as the reasons for judgment recall.[18]
[16]T 6-7.
[17]T 6.
[18] Reasons for Decision, 5 October 2011, paragraph [7].
As it happens, the Tribunal’s file includes an affidavit by Bronwyn Burgess, sworn at Bargara, near Bundaberg, on 5 December 2011, to which the Member’s attention was not drawn. But the only unambiguously direct evidence it offers is this: “I heard a conversation about Tony stressing about paying debts off that his ex had left him with”.
Jones’ Case
When the parties lived together, Jones supported McCoist and her son, a lad of high school age. He couldn’t afford that as well as paying debts from his prior relationship, so “she was going to give me this money so we could start – buy a house together”. She said as much several times between January and June 2009.[19] He did not recall any conversation about the money while Burgess stayed with them, from October to December 2008.[20] The payments he made on McCoist’s car account were not connected with her payments to him; they were simply to stave off a repossession.[21] She said many times, and occasionally in his parents’ presence, that she would not ask for her money back.[22] That claim was supported in affidavits by his parents and his sister Donna Lee Jones, all sworn on 3 August 2011. Jones senior deposed:
“I suggested that she does not give Tony money to pay off debts as the relationship was still young and she would want it back if they parted. On both occasions Julie stated that she wanted to give him the money and would never come after him for the money if they broke up.”
And Jones’ mother and sister gave evidence to the same effect.
[19] T 19.
[20] T 19.
[21] T 22.
[22] T 26.
When invited by the Presiding Member to cross-examine those witnesses, McCoist was dismissive: “No, because all the affidavits are a lie”.[23]
[23] T 27.
There were also undated, unsworn statements by Michelle Moritz and Pia Banks, which, as the Presiding Member observed, had “the same value as a letter”.[24] For what they are worth, they assert that nothing was said about a loan, “as they were getting married”.
[24] T 4.
The hearing concluded with the Presiding Member’s observation: “This is not a matter where either of you could be mistaken. This is a matter where one or other of you is not telling the truth.”[25]
[25] T 46.
The Decision under Appeal
As that comment indicates, this is essentially a case of deciding between two irreconcilable stories. Clearly and properly the Presiding Member treated the intimate character of the relationship, at crucial times, as an important consideration. Much of the supporting evidence, on each side, was given by close relatives of the parties, although, as noted in connection with Mrs Simpkins’ evidence, there was some significance in bank records of cash payments – not (as McCoist claimed) bank transfers.[26]
[26] See note 11, above.
McCoist’s witness, Mrs Simpkins, freely admitted that her recollection of events two years earlier was fallible. The Presiding Member was not satisfied that she had any independent memory of relevant dealings between the parties in 2009, and suspected that, with the passage of time, things that her daughter told her had morphed into honest but unreliable impressions of personal knowledge.[27]
[27] Decision, paragraph [13].
On Jones’ side were three witnesses, albeit close relatives, whose evidence was unchallenged, except by inadmissible aspersions from the bar table. The onus of proof rested, of course, on McCoist, and in the event, the Member was not satisfied that she had discharged it.
Conclusion
In my opinion that was a conclusion the Member was well entitled to draw, and it is not one to be canvassed on an application for leave to appeal.
Before such leave is given it must appear that the decision in question is affected, arguably at least, by an error resulting in a substantial injustice,[28] or that the appeal raises a question of general importance.[29] Those requirements are not satisfied here. It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the evidence of witness “A” than to that of witness “B”. It is not nearly enough to express disappointment at the original decision, or a subjective feeling that justice has not been done. Findings of fact will not be disturbed if, as here, they have rational support in the evidence.[30] Leave is not to be given where a party simply desires to re-argue the case; one clear purpose of a “leave” requirement is to preclude a retrial on the merits.[31]
[28]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v. Bundaberg Regional Council [2011] QCA 359 at [19].
[29]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.
[30] Fox v Percy (2003) 214 CLR 118 at 125-126.
[31] Contrast QCAT Act, s 20 (review jurisdiction).
This is not a proper case for leave, and accordingly leave is refused.
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