Ducat v Wilson [2020] QCATA 141

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ducat v Wilson [2020] QCATA 141 PARTIES: GLENN RICHARD DUCAT (applicant/appellant) v KIM NICOLE WILSON (respondent) APPLICATION NO/S: APL355-19 ORIGINATING APPLICATION NO/S: MCDO60060-19 Brisbane MATTER TYPE: Appeals DELIVERED ON: 21 September 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Application for leave to adduce fresh evidence refused. Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the applicant brought minor debt proceedings claiming repayment of loan monies – where the applicant and respondent had been living in a de facto relationship – where the respondent denied that she agreed to repay money spent by the applicant on her behalf as a loan – where the matter was heard by an Adjudicator – where the applicant failed to establish an agreed loan between the parties during the relationship – where the Adjudicator dismissed the claim – where the applicant sought leave to appeal – where the basis of appeal was limited to an application to adduce fresh evidence – where the application to adduce evidence was refused Balfour v Balfour [1919] 2 KB 571 Cohen v Cohen [1929] HCA 15 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 Pickering v McArthur [2005] QCA 294 PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19 -- 1 of 4 -- 2 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The applicant (‘Mr Ducat’) and the respondent (‘Ms Wilson’) met in December 2016 and started living in a de facto relationship in April 2017. They ended the relationship in January 2019. [2] When the relationship ended Mr Ducat asked Ms Wilson to repay to him money he said he had loaned her during the relationship. She refused, claiming that, save for one loan in relation to a motor vehicle, which she repaid, it had never been agreed between them that money he paid on her behalf was a loan. [3] Mr Ducat commenced minor civil dispute – minor debt proceedings in the Tribunal. [4] The matter was heard by an Adjudicator on 8 November 2019. The Adjudicator dismissed Mr Ducat’s claim. [5] He has filed an application for leave to appeal that decision. Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.1 [7] Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.2 Grounds of Appeal [8] Mr Ducat raises no claim that the decision of the learned Adjudicator was wrong in any particular. Rather he seeks leave to adduce fresh evidence to bolster his claim made before the learned Adjudicator that there was an agreement by Ms Wilson to repay him money. [9] The Adjudicator found she could not be satisfied on the balance of probabilities that the money claimed was money loaned to Ms Wilson and she agreed to repay it. [10] She concluded it was more probable that money was paid and advances made to her because the parties were in a de facto relationship and they were pooling assets. That occurred because they anticipated spending a future life together. The Adjudicator found there was never an acknowledgment of debt by Ms Wilson and she was not satisfied that the parties intended to create a legal relationship of creditor and debtor between them. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294. -- 2 of 4 -- 3 Fresh evidence [11] New evidence will ordinarily only be allowed at an appeal when it could not, by reasonable diligence, have been obtained for the original hearing, is credible, and might have produced an opposite result.3 [12] The fresh evidence sought to be led in the appeal proceedings consists of three emails from Ms Wilson. The emails are dated 8 December 2017, 19 February 2018 and 14 June 2018. [13] There is no explanation why the emails were not made available by Mr Ducat for the hearing before the Adjudicator. Indeed the Adjudicator asked for any copies of emails from 14 June 2018 to be handed up.4 Mr Ducat said he did not have them. [14] Even if the emails now sought to be adduced so late in the dispute were made available to the Adjudicator at hearing, it is doubtful that they would produce any contrary outcome to the matter. [15] The essential element missing from Mr Ducat’s case was evidence of any sort of acknowledgement by Ms Wilson that she knew, at the time money was paid out by him for her during their de facto relationship, that the money was only a loan repayable by her sometime in the future. [16] Mr Ducat agreed at hearing that from 12 June 2018 when he raised the issue of Ms Wilson repaying money to him, her response was that she did not realise the monies he had paid were a loan she had to repay.5 He agreed from that date the parties were in dispute about the money he paid out for her.6 [17] Despite knowing she disclaimed any such loan arrangement from about June 2018, he continued to pay out more money for her for a car. The Adjudicator found this fact significant. [18] Mr Ducat agreed that throughout the relationship, whilst he and Ms Wilson were living together, they were sharing expenses because they were building a future together.7 He also said the same thing in an affidavit he signed in Family Court proceedings against his ex-wife. That affidavit was evidence before the Adjudicator. [19] The Adjudicator found that Mr Ducat failed to make clear to Ms Wilson at the time he paid out money on her behalf that she had to repay that money. The Adjudicator accepted that prior to June 2018 Ms Wilson thought such payments were made on the basis of their anticipated shared future together as a de facto couple. [20] After that, the Adjudicator said, from July 2018, from time to time when their relationship was good Mr Ducat would not demand repayment of money and continue to pay more, but when the relationship was bad he would again raise a claim about repayment of loan monies. That happened on a number of occasions. 3 PS Business Holdings Pty Ltd v Duncan & Anor [2010] QCATA 19, [16], citing Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435. 4 Transcript 1-13 Line 13. 5 T1-12 L1-5. 6 T1-12 L7. 7 T1-16 L40. -- 3 of 4 -- 4 [21] Prior to the High Court decision of Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 there was a presumption in law that family agreements did not give rise to legal relationships.8 There is no such presumption to be applied today: In this context of intention to create legal relations there is frequent reference to "presumptions". It is said that it may be presumed that there are some "family arrangements" which are not intended to give rise to legal obligations and it was said in this case that it should not be presumed that there was an intention to create legal relations because it was a matter concerning the engagement of a minister of religion. For our part, we doubt the utility of using the language of presumptions in this context. At best, the use of that language does no more than invite attention to identifying the party who bears the onus of proof. In this case, where issue was joined about the existence of a legally binding contract between the parties, there could be no doubt that it was for the appellant to demonstrate that there was such a contract. Reference to presumptions may serve only to distract attention from that more basic and important proposition.9 [22] The question now is whether an objective assessment of the state of affairs between the parties shows an intention to create contractual relations.10 [23] The learned Adjudicator made that objective assessment based on the state of affairs between Mr Ducat and Ms Wilson and decided in the negative. [24] Mr Ducat relied on one payment of $100 in June 2018 as evidence that Ms Wilson knew she had to repay him the money he claimed. Overall it was a significant amount, some $23,195.02. The Adjudicator was not satisfied that Ms Wilson had in fact made that payment however, given Mr Ducat had access to her bank account at the time and she denied paying it. [25] The Adjudicator was not satisfied that there was evidence of an acknowledgement of a loan by Ms Wilson. If there was, such as the payment of $100 in June 2018, the Adjudicator considered any such payment was more likely than not to have been simply Ms Wilson trying to mend the de facto relationship rather than an admission that she owed Mr Ducat over $20,000. [26] The Adjudicator noted Ms Wilson admitted she had borrowed money for a car from Mr Ducat and she had repaid that. It was the myriad other payments claimed by Mr Ducat as loans by him to her that she disputed. [27] The Adjudicator made it clear to Mr Ducat that the onus of proof was on him as applicant to establish on the balance of probabilities that Ms Wilson had agreed, prior to him paying out money on her behalf, that she would repay such. The Adjudicator was not satisfied about that. [28] The Adjudicator was correct that the onus of proof lay on Mr Ducat. The finding by the Adjudicator that Mr Ducat had not proven his case on the balance of probabilities was reasonably open to her on the evidence. [29] The fresh evidence sought to be adduced by Mr Ducat will do little to produce a contrary outcome in the matter. [30] Leave to adduce fresh evidence is refused. [31] There being no error on the part of the Adjudicator otherwise identified, leave to appeal is also refused. 8 Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen [1929] HCA 15. 9 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, [26]; and see Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81, [12]. 10 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, [25]. -- 4 of 4 --