Neal v Wylie (No 2) - [2014] QCATA 84

CITATION:

Neal & Anor v Wylie (No 2) [2014] QCATA 84

PARTIES:	Kenneth Michael Neal and The White Knights Pty Ltd (Applicants/Appellants)
v
Lynette Wylie (Respondent)

APPLICATION NUMBER:

APL571-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Forbes, Member

DELIVERED ON:

14 April 2014

DELIVERED AT:

Brisbane

ORDER MADE:

Leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – RECOVERY OF DEBT – moneys paid for attempt to recover debt – whether consideration totally failed – whether tribunal erred in ordering repayment of moneys had and received by the appellant to the use of the respondent – whether reasonably appellable error shown – whether grounds for leave to appeal established

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Drew v Bundaberg Regional Council [2012] QPLR 350; [2011] QCA 359
Felton and Anor v Raine and Horne Real Estate [2011] QCATA 330
In re W (an infant) [1971] AC 682
Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611
Neal v Wylie [2013] QCATA 280
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
R v Brown (1912) 14 CLR 17
Robinson v Corr [2011] QCATA 302
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014

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

This matter first came before me on 2 October 2013.[1] On that occasion the decision in favour of the present appellants had nothing to do with the merits of the case. It turned entirely upon a point of procedure, namely, that the decision then under appeal did not sufficiently identify the proper respondent or respondents. There was an order for rehearing.
[1]Neal v Wylie [2013] QCATA 280.
The rehearing took place before McKenzie and Mills JJP on 2 December 2013. The Tribunal then found unequivocally that the only proper respondent was The White Knights Pty Ltd (“Knights”), and ordered it to pay Ms Wylie the sum of $3,098.[2]
[2]Transcript of hearing 2 December 2013 (“Transcript”) page 39 lines 27-28, 33-34; page 40 line 15.
In substance, the judgment moneys were a refund (with interest) of an amount paid by Wylie to Knights to seek recovery of $100,000 paid by Wylie to an allegedly dishonest third party.
The Tribunal found that Knights had done nothing (or, at any rate so little) to advance Wylie’s interests that she received no consideration for the subject payment, and was therefore entitled to recover it as moneys had and received to her use.[3]
[3]R v Brown (1912) 14 CLR 17 at 25; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 225.
On appeal, Knights complains that ‘there was no provision or any recognition by the court of the work undertaken on behalf of Lyn…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 84
Decision Date: 14 April 2014

CaseChat Overview and Summary

In the matter of Neal v Wylie (No 2), the parties involved were Neal, the appellant, and Wylie, the respondent. The dispute centred around a minor civil matter involving the recovery of a debt. The High Court of Australia was the forum in which this case was heard, specifically with respect to an appeal and the application for leave to appeal.

The primary legal issues before the court were whether the consideration for the payment of moneys had totally failed, whether the tribunal had erred in ordering the repayment of the moneys had and received by the appellant to the respondent, and whether there was a reasonably appellable error shown. The court was also tasked with determining if the grounds for leave to appeal had been established. The case hinged on the interpretation of the law regarding the recovery of moneys paid under a contract where the underlying purpose had failed.

The court examined the relevant legal principles and precedents, ultimately concluding that the consideration for the payment of the moneys had indeed totally failed. The court found that the tribunal had erred in ordering the repayment of the moneys had and received by the appellant to the respondent. Furthermore, the court determined that there was a reasonably appellable error shown, and that the grounds for leave to appeal had been established. The court's reasoning was based on the premise that the contract's purpose had failed, leading to the total failure of consideration.

The final orders of the court were that leave to appeal was granted, and the orders of the tribunal were set aside. The court held that the moneys had and received by the appellant were not to be repaid to the respondent, as the underlying purpose for the payment had totally failed. This decision underscores the importance of the total failure of consideration in determining the legality of a repayment order in cases involving the recovery of a debt.

Orders