Wallader v Waterson - [2022] QCAT 176

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wallader & Anor v Waterson [2022] QCAT 176

PARTIES:

WILLIAM DAVID WALLADER

(first applicant)

AND

JILL MARGARET WALLADER

(second applicant)

V

VICKI MAYE DORA WATERSON

(respondent)

APPLICATION NO/S:

MCDQ105-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

12 April 2022

HEARING DATE:

5 April 2022

HEARD AT:

Pine Rivers

DECISION OF:

Adjudicator Lember

ORDERS:

The application for a minor civil dispute – minor debt filed 27 October 2021 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor debt - whether payment between family members a gift or a loan – limitation period where loan is payable upon demand

Defamation Act 1889 (Qld), s 22

Family Law Act 1975 (Cth), Part VIIIA, Division 4 of Part VIIIAB
Limitation of Actions Act 1974 (Qld), s 10, s 35, s 36
Property Law Act 1974 (Qld), s 11
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 60, schedule 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48
Trusts Act 1973 (Qld), s 102

Uniform Civil Procedure Rules 1999 (Qld), r 560

Australian Woollen Mills Pty Ltd v Commonwealth (1954) 93 CLR 546

Briginshaw v Briginshaw (1938) 60 CLR 336
Chaudhary v Chaudhary [2017] NSWCA 222
Executor, Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162
Financial Advisers Australia v Mooney [2016] QCATA 181
Guzman v Bird [2021] QCAT 100
Laycock v Pickles (1863) 4 B&S 497
Ogilvie v Adams [1981] VR 1041

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this application about?

On 15 March 2004 the applicants paid $25,000 to their daughter, the respondent, and her then husband. The parties are in dispute as to whether the payment was a gift to be kept, or a loan to be repaid.
The applicants say that prior to the money being paid, Mr and Mrs Waterson agreed verbally that the advance was a loan, that their liability to repay it was “joint and several”, that interest would accrue at 3.5%, and the loan would be repaid to Mr and Mrs Wallader progressively on a “pay what you can, when you can” basis.
In 2018, the respondent and her husband separated. When their home was sold the applicants expected the loan to be repaid, but it was not, and the respondent and her estranged husband denied that money was ever borrowed.
In 2021, the respondent received a terminal cancer prognosis with the consequence that her life insurance paid out. After Mr Waterson agitated about his entitlement to the proceeds, and as she was then undergoing chemotherapy and unwell, the respondent paid the sum of $340,000 to an account controlled by the applicants for safe-keeping, until she could obtain legal advice on the issue.
When the time came to return the insurance proceeds to the respondent, the applicants repaid the proceeds but withheld $49,108.64, being the $25,000 advance, plus their calculation of interest. They later repaid the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wallader v Waterson

Details

AGLC: Wallader v Waterson [2022] QCAT 176
Case: [2022] QCAT 176
Decision Date

CaseChat Overview and Summary

William David Wallader and Jill Margaret Wallader (the applicants) sought to recover $25,000 from their daughter Vicki Maye Dora Waterson (the respondent) which they claimed was a loan to be repaid. The respondent denied the money was a loan and sought the return of the money she had paid into the applicants’ account. The applicants filed an application for a minor civil dispute – minor debt seeking orders that the $25,000 be permitted to be retained by them in payment of the debt, the respondent pays interest on the debt, and the respondent pays their costs of the application. The respondent filed a counter-claim for the return of the $25,000. The Tribunal was required to determine whether the payment was a gift or a loan, and if it was a loan, whether the claim was time-barred. The Tribunal was also required to consider whether it had the power to make an order about the $25,000 held by the applicants. The evidence showed that the applicants paid $25,000 to the respondent in 2004. The applicants claimed that the payment was a loan, with terms that it would be repaid on a “pay what you can, when you can” basis, with interest at 3.5% per annum, and that the respondent and her husband agreed to “joint and several” liability to repay the debt. The respondent denied that the payment was a loan and said it was a gift. There was no written agreement, no security provided for the loan, and no evidence of repayment. The evidence did not satisfy the Tribunal on the balance of probabilities that the payment was a loan. The Tribunal found that the payment was a gift and not repayable. Even if the payment had been a loan, the Tribunal found that the applicants’ claim was time-barred because there had been no acknowledgement of the loan by the respondent or any payment. The Tribunal found that it had no power to make an order about the $25,000 held by the applicants. Accordingly, the application for a minor civil dispute – minor debt was dismissed in its entirety.

Orders