McCoist v Jones
[2011] QCAT 498
•6 October 2011
| CITATION: | McCoist v Jones [2011] QCAT 498 |
| PARTIES: | Julie Anne McCoist |
| v | |
| Tony Robert Jones |
| APPLICATION NUMBER: | MCDO1556-10 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 5 October 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 6 October 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The claim is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – debt claim – moneys provided during a relationship – evidence not sufficient to prove loan had been made Jones v Dunkel (1959) 101 CLR 298 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Julie Anne McCoist |
| RESPONDENT: | Tony Robert Jones |
REASONS FOR DECISION
During 2009 Ms McCoist and Mr Jones were in a relationship and they became engaged to be married. Ms McCoist provided $17,200 to Mr Jones to pay his debts and they had discussed buying a house together. In February 2010 the engagement was called off and the relationship ended. Ms McCoist then demanded from Mr Jones the money she had provided to him. He has refused to give back the money to her.
Ms McCoist commenced an application in QCAT seeking recovery of a debt from Mr Jones. In order to succeed in her claim, Ms McCoist must prove that there is a recoverable debt. Central to this dispute is the proper categorisation of the nature of the payment of the money to Mr Jones. Ms McCoist categories the payment as a loan repayable on demand but Mr Jones categories the payment as a gift.
Both parties gave sworn evidence. It is not possible to reconcile the differences in the versions of evidence given by Ms McCoist and Mr Jones except to find that one of the parties was mistaken in their evidence. The appropriate course in my view is to consider what was said by witnesses other than the parties to the dispute about the nature of the payment.
There is no contemporaneous written evidence as to the nature of the payment made in June 2009. The fact that $17,200 was paid by Ms McCoist to Mr Jones in June 2009 is not in dispute.
Ms McCoist gave evidence at the hearing that a third person, Bronwyn Burgess, had been present in either January or February 2009 when she and Mr Jones had discussed the payment of money to Mr Jones. Ms McCoist gave evidence that this person had heard Ms McCoist tell Mr Jones that she would give him a loan from the damages she expected to recover from a work injury. Mr Jones denied that a loan was ever discussed. Mr Jones stated that Ms Burgess had gone back to Bundaberg before there were discussions between him and Ms McCoist about the provision of funds to him.
This person, Bronwyn Burgess, did not provide any evidence to QCAT. It is somewhat remarkable that such a crucial witness was not called to give evidence. There was no suggestion that she would not have been able to provide a written statement of evidence during the course of the matter or even to be available to give oral evidence at the hearing.
Ms McCoist explained that she had not asked for evidence from this witness as it would be hearsay evidence. That is not the case as Ms Burgess could give direct evidence of what she heard said by Ms McCoist and Mr Jones. Ms McCoist was not deterred by concerns about hearsay from placing into evidence a letter from her mother whose evidence in several respects was based on what she had been told by Ms McCoist.
The failure of Ms McCoist to call evidence from Ms Burgess could give rise to an inference that the evidence that Ms Burgess would give may be unfavourable to Ms McCoist according to the rule in Jones v Dunkel.[1] An unfavourable inference cannot be drawn solely on the basis that the witness was not called; there must be a basis elsewhere in evidence to support that inference.
[1] Jones v Dunkel (1959) 101 CLR 298.
There is evidence which directly contradicted the assertions made by Ms McCoist. Affidavits by the mother, father and sister of Mr Jones were filed in QCAT. These witnesses all swear that they had spoken to Ms McCoist during the period of her relationship with Mr Jones and she had told them that the money she had provided to him was not repayable if they were to break up. These witnesses swear that Ms McCoist had indicated that she had given the money to Mr Jones to pay his debts and that she had not described the provision of the funds as being by way of a loan.
[10] Ms McCoist was given the opportunity to cross examine the mother and father of Mr Jones who had attended QCAT with him. She expressly declined that opportunity on the basis that they were telling lies. Their evidence was unchallenged except for a statement made by Ms McCoist that Mrs Jones had not been in Queensland at the relevant time. No such objection was taken to the evidence of the father or of the sister of Mr Jones. The evidence from Mr Jones’s family as well as the absence of evidence from Ms Burgess supports an unfavourable inference being drawn against the case as stated by Ms McCoist.
[11] Ms McCoist did call oral evidence from her mother, Mrs Simkins. Mrs Simkins gave evidence that she had been at the bank with Ms McCoist on 3 June 2009 when $15,000 in funds were provided to Mr Jones. He was not present at the bank. Mrs Simkins recalls that her daughter said that the money was a loan by her to Mr Jones. Mrs Simkins gave evidence that she had not been present at any time when Ms McCoist and Mr Jones had discussed the payment of the funds between themselves.
[12] It was readily apparent during the hearing that Mrs Simkins did not have a good memory for most of the matters she was asked about. Even prompting from Ms McCoist did not assist Mrs Simkins to recall details of some of the matters she was asked about. She admitted that her memory was not good.
[13] I formed the impression that Mrs Simkins was a witness who was trying her hardest to give accurate evidence but who could not recall any clear details of events that had taken place about two years ago. She gave the impression that she had over time come to accommodate into her memory information that she had been told by Ms McCoist. I was not satisfied that she could recall independently what had happened in 2009 involving her daughter and Mr Jones. I did not find her evidence to be reliable for those reasons.
[14] The evidence provided to the tribunal by Ms McCoist was not sufficient to rebut the evidence of Mr Jones and of his family that the funds had been provided by way of a gift during the period when Ms McCoist and Mr Jones had been in a relationship and had been moving towards an engagement. Ms McCoist has the onus of proving her claim on the balance on probabilities. I find that she has not proved her claim. I am not persuaded that the sum of $17,200 had been paid to Mr Jones in June 2009 by way of a loan.
[15] I will dismiss her claim.