Okely v Smith (Civil Dispute)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OKELY v SMITH (Civil Dispute) [2022] ACAT 104

XD 860/2021

Catchwords:               CIVIL DISPUTE – debt recovery – whether multiple loan agreements between parties – prior proceedings between parties – whether the respondent owes the applicant more money – whether Anshun estoppel and res judicata apply in relation to prior proceedings – investment in business or loan

Tribunal:Senior Member K Katavic

Date of Orders:  13 December 2022

Date of Reasons for Decision:      13 December 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 860/2021

BETWEEN:

JULIE OKELY
Applicant

AND:

MATTHEW SYDNEY SMITH
Respondent

TRIBUNAL:Senior Member K Katavic

DATE:13 December 2022

ORDER

The Tribunal orders that:

1. The respondent must pay to the applicant the sum of $25,593 comprising:

   (a)$25,000 for the debt; and

   (b)$593 for the ACAT filing fee.

………………………………..
Senior Member K Katavic

REASONS FOR DECISION

Introduction

1. The parties in this matter used to be friends. Their friendship ended over a money dispute related to what might have been, but ultimately wasn’t, a life-changing business deal. It turned out to be life-changing, but not due to a financial windfall as they had expected.

2. However, as Ms Okely (the applicant) sees it, Mr Smith (the respondent) is at least $30,000 richer because she claims he owes her that amount of money. Ms Okely says she loaned the money to Mr Smith so that he could facilitate the transfer of a distribution licence for “Playboy Energy Drinks” from United States-based company CirTran Beverage Corp to PlayBev Pacific Pty Ltd, a company for which he was at the relevant time the sole director and shareholder.

3. Mr Smith claims the amount paid by Ms Okely was paid by her directly into the bank account of the company in the United States and constituted a capital investment as she was working with him to get the Playboy Energy Drink business off the ground in Australia.

4. This is not the first time these parties have been before the tribunal. On 30 September 2020, I made final orders in Ms Okely’s favour in the absence of Mr Smith in respect of what she maintains in these proceedings was a separate loan for $30,000. Those orders were made for $25,000 (being the tribunal’s jurisdictional limit), plus interest and the filing fee. Ms Okely enforced those orders through the ACT Magistrates Court, and the amount has been paid. Mr Smith says this was the only loan between himself and Ms Okely. The significance of this will become apparent later in these reasons.

5. The issue in these current proceedings is whether Mr Smith owes Ms Okely more money.

The application and evidence before the Tribunal

1. Ms Okely seeks an order for the payment of $25,000 plus interest[1] and the ACAT filing fee. She says the primary amount reflects a loan between herself and Mr Smith for $30,000. She has limited her claim to the Tribunal’s jurisdictional limit and abandons the excess.

   [1] Pursuant to the Court Procedure Rules 2006