Richards v Tanner

[2010] QCATA 82

CITATION:  Richards v Tanner  [2010] QCATA 82

PARTIES:	Penelope Lee Richards (Applicant/appellant)
v
Colin James Tanner (Respondent)

APPLICATION NUMBER:            APL041-10               

MATTER TYPE:

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Mr Jim Allen, Member

DELIVERED ON:   22  November 2010

DELIVERED AT:   Brisbane

ORDERS MADE:       Leave to appeal refused 

CATCHWORDS : 

MINOR CIVIL DEBT – where oral agreement to loan monies to former partner – where respondent claimed monies received without intention to repay – where adjudicator satisfied there was intention to repay and ordered appellant to repay loan – whether finding accords with the evidence – whether error of fact or law

Queensland Civil and Administrative Tribunal Act 2009, s 412(3)(a)(i)

Quyd Pty ltd v Marvass Pty Ltd [2008] QCA 257, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577, cited

REASONS FOR DECISION

President:

1. I have had the advantage of reading the reasons of QCAT Member Mr Jim Allen in draft. 

1. I agree with his reasons and conclusions, and the order he proposes.

Mr Jim Allen:

1. Mr Tanner and Ms Richards were in a relationship for nine years ending in January 2009, and they have a son. Mr Tanner brought proceedings in QCAT’s minor civil dispute jurisdiction concerning monies which he had loaned to Ms Richard’s over a period of time and, in particular, during May 2009 which he claimed had not been repaid by Ms Richards.

1. While Ms Richards accepted that Mr Tanner had made some payments for things such as meals, she denied that he had loaned her any monies.

1. The matter was heard by a QCAT adjudicator at Brisbane on 22 March 2010 who set out the law in regard to contract formation and intention to repay and, in the course of the hearing, questioned the parties extensively in regard to the transactions and the written evidence. The adjudicator was satisfied as to the credit of Mr Tanner in regard to two transactions: on 15 May 2009 in the amount of $150, and 21 May 2009 in the amount $630, which could be proved by bank statements and which corresponded to dates Ms Richards agreed that she had met with Mr Tanner. The learned adjudicator ordered that Ms Richards pay a total of $869.50 being $780 in respect of those amounts (with additional amounts of $52 for the costs of filing and $37.50 for service fees).

1. Ms Richards seeks leave to appeal that decision. This appeal tribunal ordered that the application for leave to appeal (and the appeal if leave is granted) were to be heard on the papers following the filing and serving of submissions by the parties, which has occurred.

1. Leave is required because of s 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009. Leave to appeal will ordinarily be granted only where there is a reasonable argument that the primary decision maker erred and an appeal is required to correct a substantial injustice caused by that error[1]; or the question in issue be one of general importance, and, accordingly, one which the public interest requires should be the subject of further argument and decision.[2]

   [1]        Quyd Pty ltd v Marvass Pty Ltd [2008] QCA 257

   [2]        McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577 at 580

1. In her written submissions Ms Richards claims that the evidence of Mr Tanner was fabricated, and asserts that it was not sufficient for the tribunal to make a decision in Mr Tanner’s favour. In her grounds, she claims that the adjudicator found no contract (implied, or existing); and, asserts that her appeal can be advanced on a mixed question of fact and law. She also provided further submissions containing her views about the evidence provided at the hearing by Mr Tanner.

1. Mr Tanner, in his submissions, confirmed his belief in the correctness of the adjudicator’s decision based on the credibility of his evidence at the hearing. Mr Tanner provided further explanations in regard to some of his evidence including transcribed text messages and child support agency claims.  These matters have also been raised by Ms Richards in her submissions.

1. A reading of the hearing transcript discloses that the adjudicator went to some trouble to explain what was required to create a contract of loan, in regard to offer and acceptance and consideration. He made it clear that mere receipt of funds was not sufficient, without there being an intention that the money be repaid. He took a course of isolating several transactions upon which there was contemporaneous evidence in terms of bank statements and obtained confirmation from Ms Richards that she had dealing with Mr Tanner on those days.

1. The adjudicator also sought clarification form both parties in regard to the meaning of several SMS messages which Mr Tanner had transcribed, and which both parties accepted. One of these transcripts specifically mentioned an amount of $1,045 which was the amount that Mr Tanner had been claiming. There was also correspondence from the child support agency in regard to a non agency payment in the same amount of money. Ms Richards disclosed that she had offered to repay the amount requested by Mr Tanner at $5 a week. This was rejected by Mr Tanner as he stated the agreement was that the amount would be repaid in July 2009 by Ms Richards from her tax cheque.

1. There was also a statutory declaration provided by Mrs Richards sixteen year-old son, to the effect that he had heard Ms Richards and Mr Tanner discussing the money. The adjudicator concluded by finding on the balance of probabilities that he could give some credit for those two individual withdrawals in the amount of $780. In context, this plainly means that the adjudicator accepted that the payments have been made to Ms Richards, and that they were made by way of loan.

1. The adjudicator has made findings of law in terms of what are the legal requirements to constitute a contract of loan and these are in accordance with generally accepted contractual principles. He has also made findings of fact based on the written evidence and oral testimony of the parties. He has been able to establish that certain amounts were withdrawn by Mr Tanner at times when he was in the company of Ms Richards and that, on the balance of probabilities, she had received them with an intention that she would repay them.

1. These findings were open to the adjudicator based on the evidence before him and there is no error of either fact or law which would raise an appellable issue. Having regard to the domestic nature of the matter in terms of it being a small debt there is also no general interest to be served by granting leave to appeal. Leave to appeal should, therefore, be refused.