Ray v Hope
[2013] QCATA 10
•23 January 2013
| CITATION: | Ray v Hope and Anor [2013] QCATA 10 |
| PARTIES: | Darren John Howard Ray (Appellant) |
| v | |
| Rhonda Hope Belinda Jane Hope (Respondents) |
| APPLICATION NUMBER: | APL199-12 |
| MATTER TYPE: | Appeals |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 23 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – AGREEMENT NOT INTENDED TO CREATE LEGAL RELATIONS – DOMESTIC, SOCIAL AND OTHER AGREEMENTS – where the Appellant made a claim for monies lent during a relationship with the Respondent – where the Tribunal found the monies and goods claimed were gifts – whether leave to appeal should be granted – whether there was an intention to create legal relations. Queensland Civil and Administrative Tribunal Act 2009, ss 3(b), 20, 32, 142(3)(a)(i), 132(3)(b) Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 77(1) Balfour v Balfour [1919] 2 KB 571 In Re W (an infant) [1971] AC 682 Jones v Padavatton [1969] 2 All ER 616 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1976] 3 All ER 665 |
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 Applicant Darren John Howard Ray seeks leave to appeal an Adjudicator’s order dismissing his minor civil dispute claims against Rhonda Hope for $28 and against Belinda Jane Hope for $421.47 in debt and $254.30 by way of interest. The amount of the principal is not in dispute. The defence is that it is not moneys lent, but a series of gifts inspired, as traditional legalese has it, by natural love and affection.
It is common ground that Mr Ray and Ms Belinda Hope were in “a relationship” for four[1] or five years.[2] The association began when Ms Hope was a student aged 23[3] and Mr Ray an entertainer some 18 years older than she.[4] Ms Hope’s case is that, in Mr Ray’s view, gifts were transmuted to loans when their association ended.
We had a great time ... and he was always civil and nice to me until we actually fully broke up. It was then that he started having sour grapes and then harassing me and wanting his money back.[5]
[1] Transcript of hearing, 10 April 2012 (“Transcript”) page 4 (Hope).
[2] Transcript page 15 (Ray).
[3] Transcript page 12 (Hope).
[4] Transcript page 17 (Adjudicator).
[5] Transcript page 12.
The claimed amount of $421.47 was allegedly lent as follows:
a) $100 to pay veterinary fees on or about 7 November 2005;
b) $171.47 for ticket to “Splendour on the Grass” concert May 2006;
c) $100 for petrol on several occasions;
d) $50 for a dog blanket or blankets.
An additional $28 for cigarettes and liquor was apparently claimed against Ms Hope’s mother, the first Respondent, but that item is not explicitly dealt with in the primary decision.
Mr Ray was unable to produce receipts for the blankets or the liquor and cigarettes. With respect to petrol, he conceded that such documentation as he did have may be for purchases on his own behalf.[6]
[6] Transcript pages 7 (Ray) and 18 (Adjudicator).
It is common ground that an amount of $450 advanced to pay Ms Hope’s rent was indeed a loan, which has been repaid.
It cannot be said that Ms Hope’s evidence is entirely clear. Her first reference to the veterinary fees is paradoxical: ‘I don’t disagree with him lending me the money as a gift’.[7]Ms Hope’s mother, the first Respondent, reflected that ambivalence, recalling her daughter saying: ‘Darren has lent me some money, gave me some money towards the vet bill’.[8]But a moment after her first response Ms Hope asserted: ‘I disagree. It was a gift. It wasn’t that I had to pay him back, that’s all’.[9]However, she did ‘remember saying I can pay you back, I think, or try to in a certain amount of time because I was a full time student ...’[10]
[7] Transcript page 4.
[8] Transcript page 11.
[9] Transcript page 4.
[10] Transcript page 12.
The purchase of concert tickets followed ‘an invitation to attend the concert with him as a guest’[11] – ‘definitely an invitation’.[12]On the other hand, Mr Ray’s recollection was that she said she would refund the price of her ticket to him in the next Christmas period ‘when I’m working’.[13]Ms Hope conceded: ‘I sent [him] a text message saying I’d like to pay you back before Christmas’ but immediately added: ‘[W]e were in a long-term relationship and he said many times, “You don’t have to pay me back”’.
[11] Transcript page 5.
[12] Transcript page 12.
[13] Transcript pages 5 and 9.
The purchases of petrol, according to Ms Hope, were to enable her to drive to Brisbane to spend weekends with Mr Ray. The suggestion that they were loans is ‘a bit ridiculous because I couldn’t afford to drive up to Brisbane [from Murwillumbah] ... so he would often give me money to allow me to come up and see him and spend weekends with him’.[14] (As already noted, Mr Ray concedes that some of the payments for petrol may have been on his own account.)
[14] Transcript page 12.
Only the dog’s “doona” remains to be considered. Ms Hope’s version is that it was an ‘absolute gift’, and that she ‘didn’t even know that he was buying’ it.[15] According to Ms Hope’s mother, her daughter said: ‘Darren’s bought me some dog blankets’ without any mention of a loan.[16] However, Mr Ray insisted that Ms Hope asked him to buy that item, and promising to repay him.[17] Gallantly he added that he ‘wasn’t sleeping with Belinda’ at the time.[18] However, the learned Adjudicator was satisfied that all the disputed “gifts” were made ‘during the period of the relationship’.[19]Some support for that finding lies in the fact that the highest estimate of that period is Mr Ray’s own.[20]
[15] Transcript pages 12 and 15.
[16] Transcript page 11.
[17] Transcript page 14.
[18] Transcript page 15.
[19] Transcript page 17.
[20] Transcript page 15: ‘five years, not three’.
The Adjudicator remarked that, apart from Ms Hope’s text note, there was no document recording a loan.[21] While it is true that the amounts involved are relatively small, one might have expected such a document to be produced, if appropriate, by a lender who was sufficiently obsessive to join the first Respondent for an amount of $28, to demand interest on $450 that was repaid, to make an unlawful tape recording of a phone call to his former lover[22], to retain records for ‘every call I’ve made’[23] and to seek to tender no fewer than 18 largely irrelevant character references in support of a minor civil claim.
[21] Transcript page 18.
[22]Transcript page 8; Telecommunications (Interception and Access) Act 1979 (Cth), ss 7, 77(1); Russell v Russell [2012] FamCA 99 at [404].
[23] Transcript pages 9 and 14.
While Ms Hope's evidence was somewhat equivocal, the Adjudicator preferred her evidence to the Applicant’s, as he was entitled to do. In particular, it appears that he accepted her evidence that ‘there were many times in which Mr Ray indicated it was no longer necessary for her to repay that loan [sic]’.[24] In particular he found Ms Hope’s evidence ‘more persuasive and consistent with the situation she was in’ while ‘Mr Ray ... has clearly been ... upset by the break-up of the relationship’.[25]
[24] Transcript page 18.
[25] Transcript page 18.
Intent to create legal relations?
It is manifest that the “relationship” was a vital consideration in the Adjudicator’s decision:
The fact of the matter is that Mr Ray ... was an older man and Ms Hope was a younger lady who was a student [and] who ... did not have much money. It would seem logical that the Tribunal draw an inference from the evidence, and in particular the fact that Mr Ray was an older man and Ms Hope was a younger lady, that as is usual in a lot of dating or relation situations, someone who has the money, is earning the money, actually can pay ...[26]
[26] Transcript page 17.
Indeed the common course of human affairs suggests that in such situations, and even in the context of a marriage or a close family relationship, promises to repay money are made without the slightest intention on either side to create, let alone enforce, legal obligations.[27] Absent any such intention or mutual understanding, promises made in social contexts are generally unenforceable in courts of law.[28] Love’s disappointments do not retrospectively alter that position.
[27] Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91.
[28] Jones v Padavatton [1969] 2 All ER 616 at 621.
The learned Adjudicator observed: ‘in many ways the evidence in this case boils down to one person’s word against another as to whether or not it is a gift or not.’But with due respect, some support for Ms Hope’s credit may be found in her acceptance that moneys advanced to pay her rent were a loan, and in her repayment of that amount.
Should leave to appeal be granted?
In a case of this kind there is no appeal as of right.[29] This is precisely the kind of dispute that the legislature wishes to see resolved speedily, informally, economically, and with finality.[30] One clear purpose of the “leave” proviso is to preclude attempts to conduct retrials on the merits.[31] It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling that justice has not been done.[32] It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.[33] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[34]
[29]Queensland Civil and Administrative Tribunal Act 2009, ss 142(3)(a)(i), 142(3)(b).
[30] QCAT Act, s 3(b).
[31] Contrast QCAT Act, s 20 (review jurisdiction).
[32] Robinson v Corr [2011] QCATA 302 at [7].
[33] Fox v Percy (2003) 214 CLR 118 at 125-126.
[34]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
I have carefully read the transcript and I am satisfied that the learned Adjudicator gave Mr Ray every opportunity to advance his case. The Adjudicator gave persuasive reasons for preferring the evidence of Ms Hope. His findings of fact and credit were clearly open on the evidence, and nothing in the material presented for leave to appeal provides a proper basis for disturbing findings that he was entitled to make. According to the QCAT Act, it is not for the Appeal Tribunal to substitute its own opinion on the evidence before the Adjudicator, even if it wished to do so. The Act makes it clear that this is not an opportunity for the Appellant to re-argue his case anew.
Accordingly leave to appeal is refused.
7
0