Rohan v Graham Douglas Favell as Trustee GDF Holdings Trust
[2014] QCAT 182
| CITATION: | Rohan v Graham Douglas Favell as Trustee GDF Holdings Trust [2014] QCAT 182 |
| PARTIES: | Peter Rohan (First Applicant) Colleen Rohan (Second Applicant) |
| v | |
| Graham Douglas Favell as Trustee GDF Holdings Trust (Respondent) |
| APPLICATION NUMBER: | MCD58/14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 24 February 2014 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 9 May 2014 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | That the Respondent pay to the Applicant the sum of $25,381.40 within seven days for the following: a. Claim $25,000.00 b. Filing fee $101.40 c. Bailiff fee $96.80 |
| CATCHWORDS: | Minor civil debt – alleged money loaned to respondent – monies now due and owing – where Respondent filed a Response but did not appear at the hearing – whether matter should be heard ex parte Queensland Civil and Administrative Tribunal Act 2009, s 12, s 92, s 93 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Peter Rohan and Mrs Colleen Rohan |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
Mr and Mrs Rohan state they were conned by Mr Graham Douglas Favell on 21 September 2012 to lend him some money. It was agreed that the monies would be paid to Mr Favell’s Holding Trust that trades as the GDF Trust. They allege it was agreed that the sum of $31,000 would be loaned to Mr Favell at an interest rate of 9.14% per annum over a one year period.
Mr Rohan said that the principal was to be repaid on or before 21 September 2013. Mr Rohan says that he loaned Mr Favell the sum of $31,000.00 but waivers the right to any of the funds over and above the jurisdiction limit of this tribunal which is $25,000.00.
Mr Favell filed a response on 22 November 2013. He alleges in his defence that the claim should ‘be dismissed as it has falsely been brought”. He claims in his defence that “at no time did the GDF Holdings trust or myself receive any funds from the Applicant’s’.
Mr Favell further sets out n his defence that the ‘document attached to the loan application (“Loan Agreement”) was a draft and was never entered into… I believe the signature page is from another document with pages that were all initialled by myself and related to Peter Rohan investing in an offshore business transaction using money from his son’s trust’.
EVIDENCE
Mr and Mrs Rohan gave evidence that they were persuaded in August 2012 by Mr Favell to lend him money that he said he needed ‘to help him’. They said they agreed to lend him some money and they utilised funds from their son, Alexander’s, trust account. They said their son has a mental illness, ‘suffers from schizophrenia’ and they are act as trustees for their son.
Mr and Mrs Rohan said that they had a loan agreement drafted and that all the parties signed the agreement. They attached a copy of the agreement dated 12 September 2012, to their claim.
Mr and Mrs Rohan claimed they felt that they would never get their money back, that they had been conned and been manipulated by Mr Favell to given him their disabled sons trust money. They said that despite the agreement being signed for the repayment of the money with interest they were deeply concerned that they would never be paid and that the public trustee was looking into the matter.
Mr Favell said that after lending the money to Mr Favell he had been led to believe that Mr Favell is a discharged bankrupt having been bankrupt in 2005. He said he also believes that Mr Favell has acted fraudulently in his business dealings with him. Mr Rohan said that Mr Favell had also been involved in fraudulent business transactions involving his business and that there were now matters involving the taxation department that would force him into bankruptcy.
Mr Rohan said he brought the claims to the tribunal to make Mr Favell and Mr Robinson accountable for their actions and to try and get him to stop doing the ‘same things to other unsuspecting members of the public’.
Mr Rohan said that Mr Favell and Mr Robinson trade and hide behind a number of various companies and entities, and some included ECQAS Pty Ltd (ACN 156 045 788) and Vubonic Pty Ltd (ACN 154 927 143), and the GDF Holding Trust. He said that they were convincing liars and that he had been unfortunately conned by them.
Mr Rohan said he had contacted Mr Favell to request the monies be repaid. He produced a copy of those messages[1] and evidence. He said to date no monies had been repaid.
[1]Pages 14 - 20 of Exhibit 1.
Mr Favell claims in his defence that the funds were ‘involved in a share purchase of a public listed company not a loan’.
The loan agreement attached to the claim purports to be between GDF Holdings Trust (as the Borrower) and Peter and Colleen Rohan atf Alexander H Rohan (the Lender). The Loan Agreement was made on 1 August 2012 with an advance date of 21 September 2012. The agreement in the schedule at page 6 of the document provides the loan amount of $31,000.00 at 9.14% interest per annum payable on the due date, and the loan to be repaid 12 months from the advance date, that being 21 September 2013. Page 7 of the agreement provides for signatures and witnesses and the agreement are signed by Mr Favell as trustee for the GDF Holdings Trust.
Mr Rohan did not provide any evidence as to how the funds were transferred and the loan advanced to Mr Favell. However the evidence in the communication between the parties between April and May 2013 supports a finding that the funds were released to Mr Favell, Mr Rohan made numerous demands for the repayment of the principle sum and interest, and that Mr Favell has not repaid them.
The respondent did not appear at the hearing of this matter. Upon being satisfied that he had notice of the hearing I determined to proceed in his absence. I nevertheless had regard to matters raised previously in his response filed on 22 November 2013 on his behalf.
Mr Favell claims in his response that the funds were not a loan but were used to purchase shares in a public listed company. I reject that evidence. Mr Favell did not provide any evidence to support that contention.
FINDINGS
I am satisfied that the funds were loaned by Mr and Mrs Rohan to Mr Favell pursuant to a loan agreement entered into between the parties. I accept the agreement was signed by the parties and the agreement was made on 1 August 2012.
I find that Mr and Mrs Rohan were to some extent, naive and impetuous to have lent such a large amount of money from their sons trust account to a person that they hardly knew, to be a sad and sorry indictment on their obvious trust in Mr Favell. I find that they were tricked out of their disabled son’s money on the promise and agreement of a short term loan of 12 months with a good return of interest and that they were duped into believing the funds would be repaid. They are now in an invidious position of being unable to have the fund returned to them so as to replace those funds back into their son’s trust fund.
The action of Mr Favell and the fact he would request a loan from Mr and Mrs Rohan to access fund from their disabled sons trust fund is a reflection on the level that he would stoop too in obtaining money from Mr and Mrs Rohan. Clearly they did not have the funds to loan to him and were pressured to loan the funds they controlled in their sons account. Mr and Mrs Rohan have given evidence that the various loans, money lent and fraudulent business dealings involving Mr Favell and another friend of his could result in them ‘becoming bankrupt’.
While I am sympathetic to the plight of Mr and Mrs Rohan and the extremely difficult and stressful position they have placed themselves in, on the evidence they provided to the tribunal, that they believe Mr Favell is a discharged bankrupt, who has little in the way of assets, they have little possibility of actually recovering back any of the funds loaned to him. This case may be a timely reminder to parties who trustingly lend money to friends or acquaintances, who may have little or limited income and little or no assets, and therefore little chance of ever paying a loan back, despite there being loan agreements and other contracts in place. Such documents, legal or otherwise, are not worth the paper they are written on if they are not enforceable, as the borrower has no asset or other means of recovery.
In the circumstances I am satisfied that the appropriate order I should make is that Mr Favell must repay the loan to Mr and Mrs Rohan together with the filing and bailiffs fee. The order is:
1. That the Respondent must pay to the Applicants the sum of $25,381.40 within seven days for the following:
a)Claim $25,000.00
b)Filing fee $101.40
c)Bailiffs fee $96.80
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