Paszek v Rule
[2011] QCATA 62
•7 April 2011
| CITATION: | Paszek v Rule [2011] QCATA 062 |
| PARTIES: | Michael Paszek (Applicant/Appellant) |
| v | |
| Nicola Rule (Respondent) |
| APPLICATION NUMBER: | APL370-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 7 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where the respondent was ordered to pay the applicant/appellant $1,155.50 as a result of an agreement reached after the breakdown of a personal relationship – where the respondent seeks leave to appeal that decision on the grounds that the Magistrate erred at first instance by failing to take into consideration relevant factors and by considering irrelevant factors – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009 |
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
Mr Paszek sued Ms Rule in QCAT’s Minor Civil Disputes jurisdiction for money which, he said, he had loaned to her to start a business and which she had agreed but failed to repay. The matter was heard and determined by a Magistrate sitting as a QCAT Member at Maroochydore on 6 October 2010.
The learned Magistrate ordered that Ms Rule pay Mr Paszek $750 which, she agreed, she owed him as a consequence of an agreement reached after the breakdown of a personal relationship between them, plus another $275 for a mobile phone bill, and some filing fees. The final order was that she pay Mr Paszek $1,155.50.
He has sought leave to appeal that decision because, he says, the Magistrate wrongly refused to accept his claim that Ms Rule owed him money under a loan agreement between them. He also alleges that the Magistrate made two other mistakes – wrongly finding that Mr Paszek failed to contribute to living expenses in the household he shared with Ms Rule, and wrongly allowing Ms Rule to ‘set off’ money she alleged that Mr Paszek owed her because, she claimed, he had failed to contribute to living expenses.
Because the original proceeding was a Minor Civil Dispute, Mr Paszek is obliged to seek leave to appeal: QCAT Act, s 142(3)(a)(i). The question 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232 at [13].
[3]QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]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.
It is material to the learned Magistrate’s decision, and Mr Paszek’s submissions in his application for leave to appeal, that the parties had lived together for some years in a de facto relationship, and have a daughter; and, although they separated in 2008 Mr Paszek later resumed living in the same house as Ms Rule and, she said (and the learned Magistrate agreed) that at that time cohabitation resumed he had agreed to contribute towards his room and board.
The learned Magistrate also found, after hearing evidence and submissions from Mr Paszek and Ms Rule, that there was no agreement between them for any loan, whether to fund Ms Rule’s massage business or at all; that Mr Paszek sometimes did not pay his room and board but instead, by agreement, he would pay some of Ms Rule’s expenses including business expenses; that there had in the past been an agreement between them, arising out of the breakdown of their de facto relationship, whereby she would pay him some money for furniture which she kept, and a mobile phone account. It is those amounts which make up the sums the learned Magistrate ultimately ordered that Ms Rule pay Mr Paszek.
Mr Paszek’s submissions to this Appeal Tribunal allege that the learned Magistrate wrongly failed to view and consider documentary evidence in support of his claim.
This evidence is, he says, attached to his submissions to this Tribunal. The attachments are set out in tremendous detail. They are accompanied by a document called ‘Instructions on How to Read and View’ which appears to contain information about how to read and understand them and, in particular, what seems to be a colour-coded system within them featuring yellow, blue and red shading. The pages are unnumbered, but there appear to be about 100 with, according to an early document which is an index, 16 separate bundles.
According to Mr Paszek’s submissions these documents are a summary of expenses which he says he paid as part of the loan agreement. His difficulty is that the learned Magistrate was not persuaded that a loan agreement existed. In his short oral reasons the learned Magistrate said that the parties did not have any intention to create ‘contractual relations’.
[10] That appears, with respect, to express the implied but clear finding that he preferred Ms Rule’s evidence that there was no business loan, and that all of the claims Mr Paszek has made were referrable to his agreement to pay her $270 per week board or, if he could not, to pay some of her other expenses on his credit card.[5]
[5] Hearing transcript, page P-7.
[11] Although the learned Magistrate does not give specific reasons for preferring Ms Rule’s evidence, he explains his decision in the last paragraph at p P-10.
I am quite satisfied that he did pay for some of those items set out on the list that sets out his claim, but I am also satisfied that this was as a result of a domestic arrangement whereby those amounts were paid in lieu of room and board. There is no liquidated sum claimed as the precise amount of the loan. It is more an aggregation of expenses that the claimant says he paid. In my view this was not a commercial arrangement. There is no loan document. There is no contract of loan. It was an informal living arrangement made between two parties who were sharing accommodation and sharing household expenses.
[12] The learned Magistrate had the advantage of observing, and hearing from, the witnesses. There is nothing in the transcript or the evidence now sought to be presented by Mr Paszek, which suggests that his preference for Ms Rule’s evidence about the nature of the relationship between the parties was plainly wrong, or against the weight of evidence, or not reasonably open as a finding about the credit of the parties, on the balance of probabilities.
[13] Once it is understood that findings of this kind were reasonably open to the Tribunal, Mr Paszek’s other complaints about the learned Magistrate’s conclusions cannot be sustained. The documents he placed or sought to place before the Magistrate do show that he contributed to household expenses but that was an exercise referable, the learned Magistrate found, to a domestic arrangement and not a contractual one, like a loan. If domestic arrangements were in place, the Magistrate’s decision to ‘set off’ some of Ms Rule’s expenses was not unreasonable, and neither was his conclusion that she should pay Mr Paszek some monies which she agreed were owing, under those arrangements.
[14] Nothing, then, in Mr Paszek’s application for leave to appeal persuades me that the learned Magistrate fell into any error, or that grounds for leave exist. His application for leave to appeal must be refused.
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