Cavenett v Cavenett [2018] QCATA 61

CITATION: Cavenett v Cavenett [2018] QCATA 61 PARTIES: David Alan Cavenett (Appellant) v Stephanie Joy Cavenett (Respondent) APPLICATION NUMBER: APL339-17 MATTER TYPE: Appeals HEARING DATE: 26 April 2018 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 4 May 2018 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal refused. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF TRIBUNAL BELOW – PARTICULAR CASES – CONTROL OVER PROCEEDINGS – ADMISSION OF EVIDENCE – where appellant did not explain why material not submitted earlier – where material would not have important impact on result APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with member’s findings of fact – whether evidence capable of supporting findings – where Agreement between former husband and wife to equally share children’s private school fees – where open for Tribunal to make alternative findings about making and terms of Agreement does not amount to error sufficient to warrant granting of leave to appeal – whether intention to create legal relations – where open for Tribunal to find binding legal Agreement Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 12, s 143, Schedule 3 -- 1 of 9 -- 2 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Balfour v Balfour [1919] 2 KB 571 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39 Brown v Brown (1905) 5 SR (NSW) 146 Cachia v Grech [2009] NSWCA 232 Chambers v Jobling (1986) 7 NSWLR 1 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 Creek v Raine & Horne Mossman [2011] QCATA 226 Dearman v Dearman (1908) 7 CLR 549 Drew v Bundaberg Regional Council [2011] QCA 359 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Merritt v Merritt [1970] AC 806 Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Richards v Tanner [2010] QCATA 82 Slater v Wilkes [2012] QCATA 12 Thomas v The Agency.Blue [2018] QCATA 43 APPEARANCES: APPELLANT: Mr David Cavenett appeared in person RESPONDENT: Ms Stephanie Cavenett appeared in person REASONS FOR DECISION What is this appeal about? [1] On 20 September 2017, the Tribunal ordered David Cavenett to pay Stephanie Cavenett the sum of $16,979.40 by 20 October 2017. Mr Cavenett and Ms Cavenett are divorced, but have children from the former marriage. [2] The Tribunal found that Mr Cavenett and Ms Cavenett had agreed that they would equally share their children’s private school fees until they finish in 2019 and that Mr Cavenett had not paid his share to Ms Cavenett. -- 2 of 9 -- 3 [3] Mr Cavenett wants to appeal the Tribunal’s decision. He says that he and Ms Cavenett had no binding Agreement for him to contribute towards their children’s private school fees and that the Tribunal exceeded its monetary jurisdiction. [4] Because this is an appeal from a minor civil dispute, leave is required.1 [5] In determining whether to grant leave, the Tribunal will consider established principles including: a) whether there is a reasonably arguable case of error in the primary decision;2 b) whether there is a reasonable prospect that the appellant will obtain substantive relief;3 c) whether leave is needed to correct a substantial injustice caused by some error;4 and d) whether there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.5 [6] I will address Mr Gravenett’s grounds of appeal below. Did the Tribunal exceed its monetary jurisdiction? [7] Mr Cavenett submitted that Ms Cavenett has since the hearing sought additional school fees that, when added to the original judgement, exceeds the Tribunal’s jurisdiction. [8] The Tribunal has jurisdiction in its minor civil disputes jurisdiction to hear and determine claims up to $25,000.00.6 The Tribunal awarded $16,979.40 – the amount claimed by Ms Cavenett in her original Application. That amount is within the Tribunal’s monetary jurisdiction. [9] Any additional fees sought by Ms Cavenett arising from a breach after filing her Application would be the subject of a separate cause of action, requiring a separate Application to be filed. [10] This ground of appeal is dismissed. Should the Appeal Tribunal admit fresh evidence? 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3). 2 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, 2. 4 QUYPD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 12, Schedule 3. -- 3 of 9 -- 4 [11] Mr Cavenett sought to file an additional email7 that he submitted is the ‘full email correspondence between the applicant and the respondent’.8 He also sought to file bank statements that he submitted showed a pattern of child support payments.9 [12] The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an applicant for leave to adduce fresh evidence must satisfy three tests. Could the parties have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible? 10 [13] An application for leave to appeal is not, and should not, be an attempt to reargue a party’s case at the initial hearing.11 Mr Cavenett did not explain why he did not provide this evidence at the original hearing. Although Mr Cavenett appeared by telephone, this does not obviate from his obligation to provide all relevant evidence at the original hearing. [14] It is not an excuse that Mr Cavenett mistakenly thought the matter would be dismissed for other reasons or that it was an ‘open and shut case’. This is because Mr Cavenett had an obligation to act in his own best interests:12 The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. [15] The onus is always upon Mr Cavenett to present his case and present all relevant evidence. Ms Cavenett served her original Application on Mr Cavenett on 4 July 2017. Mr Cavenett filed his Response on 1 August 2017. The hearing proceeded on 20 September 2017. Mr Cavenett had sufficient opportunity to file all his material. [16] Moreover, this new evidence would not have an important impact on the result of the case. [17] The email reads: You mean Monday the 4th and Friday the 8th don’t you? 7 Email Stephanie Cavenett to David Cavenett, dated 28 June 2011. 8 Application for leave to appeal or appeal attachment, page 1. 9 Bundle of Suncorp Bank Statements, dated 26 February 2010 to 24 June 2012. 10 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 11 Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39. 12 Creek v. Raine & Horne Mossman [2011] QCATA 226 at paragraph [13], citing with approval Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175, 217. -- 4 of 9 -- 5 You didn’t answer my questions regarding schooling? [18] The email refers to ‘questions regarding schooling’. Later emails addressing those questions were provided at the original hearing and considered by the Tribunal. The email of 28 June 2011 adds nothing other than to provide some limited context. This email is not admitted into evidence. [19] Most of the bank statements predate the time of the alleged Agreement. Even if the bank statements do show a pattern of child support payments, that is not sufficient to displace the Tribunal’s finding of a separate Agreement for the parties to each pay half of their children’s school fees. The bank statements are not admitted into evidence. [20] The application for leave to appeal must proceed on the basis of the evidence before the Tribunal. Was the evidence capable of supporting the Tribunal’s findings? [21] Mr Cavenett submitted that the Tribunal erred in finding that he and Ms Cavenett had entered into a legally binding Agreement. Specifically, he submitted: a) He did not offer to pay school fees until the end of 2017 – rather, Ms Cavenett requested a contribution and he made a contribution until late 2015; b) He did not agree verbally or in writing sufficient for a legally binding Agreement – his payment of school fees ‘was made as a contribution towards the children’s support and maintenance’,13 and a continuation of a ‘private non-binding civil arrangement’;14 c) He did not intend to create a legally binding Agreement and did not seek legal advice; and d) The Child Support Agency did not recognise that he and Ms Cavenett had entered into a legally binding Agreement. [22] The existence and terms of a contract are questions of fact – the Appeal Tribunal generally does not grant leave to appeal by way of rehearing against findings or inferences of fact reasonably open on the evidence.15 [23] I have read the transcript of the hearing and the Tribunal’s reasons for its decision. It is apparent from the transcript that the Tribunal made a finding of fact of a legally binding Agreement between the parties based on their sworn oral evidence, documents including emails and bank statements 13 Application for leave to appeal or appeal attachment, page 2. 14 Applicant submissions, page 4. 15 Thomas v The Agency.Blue [2018] QCATA 43, [55]. -- 5 of 9 -- 6 and Mr Cavenett’s own conduct in making payments consistent with the terms of the Agreement alleged by Ms Cavenett.16 [24] The Appeal Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.17 An appellate tribunal may only interfere if the conclusion is ‘contrary to compelling inferences’ in the case.18 [25] It is implicit that the Tribunal accepted Ms Cavenett’s evidence about the making of the Agreement and its terms and that the surrounding circumstances were more consistent with her version of events. Having heard the evidence of both parties, and questioned them throughout the hearing, the Tribunal was in the best position to assess credibility. [26] While it may have been open for the Tribunal to make alternative findings about the making and terms of the Agreement and whether the parties had an intention to create legal relations, that does not amount to an error sufficient to warrant the granting of leave to appeal. A decision cannot properly be called erroneous, simply because the Tribunal preferred one conclusion to another possible conclusion.19 [27] I am satisfied that it was open for the Tribunal to find a binding legal Agreement between Mr Cavenett and Ms Cavenett. Ms Cavenett attended the original hearing in person and gave sworn evidence that in 2011 she and Mr Cavenett ‘agreed to equally share the children’s private school fees until they finish in 2019’ and that Mr Cavenett ‘paid his 50 percent share for 2012, 2013, 2014 and part 2015’.20 Ms Cavenett supported this evidence with bank statements showing payments made by Mr Cavenett with the reference ‘school fees’. [28] Mr Cavenett claimed that his payments were part of his child support obligations. However, the bank statements show separate references for these payments. For example, the bank statement for the period from 9 May 2015 to 8 November 2015 includes these separate payments made on 16 July 2015 with different payment references (my underlining):21 Direct Credit 079523 Child Support Direct Credit 010842 Cavenett D A Half school fees [29] Mr Cavenett focused much of his submission on the rebuttable presumption that parties in a domestic or social arrangement do not intend to create a legally enforceable Agreement, citing the English decision of 16 Transcript, page 1-5, Lines 23 to 25; page 1-9, Lines 14 to 17; page 1-16, Lines 9 to 15 and 18 to 25; page 1-17, Lines 6 to 10; page 1-18, Lines 15 to 21. 17 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 18 Chambers v Jobling (1986) 7 NSWLR 1, 10. 19 Slater v Wilkes [2012] QCATA 12 at [6], citing Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611. 20 Transcript, page 1-2, Lines 39 to 42. 21 Commonwealth Bank Statement 12. -- 6 of 9 -- 7 Balfour v Balfour.22 In Balfour, a wife’s attempt to enforce a promise by her husband to pay her an allowance failed on the basis that that she had not provided consideration and that most agreements between husband and wife are not contracts. [30] However, whether the presumption is rebutted is a question of fact. It was certainly open for the Tribunal to find that the presumption was rebutted and the relevant intent present, in circumstances where Mr Cavenett and Ms Cavenett had been divorced for many years at the time they entered into the Agreement. As Lord Denning noted when distinguishing Balfour in the more recent English decision of Merritt v Merritt:23 I do not think that those cases have any application here. The parties there were living together in amity. In such cases their domestic arrangements are ordinarily not intended to create legal relations. It is altogether different when the parties are not living in amity but are separated, or about to separate. They then bargain keenly. They do not rely on honourable understandings. They want everything out and dried. It may safely be presumed that they intend to create legal relations. [31] There was also no legal requirement for the Agreement to be in writing, nor for Mr Cavenett to have obtained legal advice:24 The parties’ promise did not require writing to be binding. A contract can be legally enforceable even if its written terms were unsighted and unsigned by the accepting party. Documentation goes to proof of formation – it is not a precondition. Mr Cavenett is a qualified accountant and cannot be considered to have been at an unfair disadvantage in his dealings with Ms Cavenett. [32] Mr Cavenett’s submission that the Child Support Agency did not recognise that he and Ms Cavenett did not enter into a legally binding Agreement is misconceived. The Tribunal is not bound by administrative decisions of the Child Support Agency in making findings about whether money is owing under an Agreement. [33] Moreover, the Tribunal specifically referred to correspondence from the Agency where it decided not to recognise payments made by Mr Cavenett for dental and school fees as a ‘Non Agency Payment’ for credit towards his child support.25 [34] That finding was open to the Tribunal and is entirely consistent with the plain words of the document. The correspondence specifically refers to ‘Amount disallowed’ and ‘Reason if disallowed – No Mutual Intention’. It is clear from reading the Agency’s correspondence as a whole that its 22 [1919] 2 KB 571. 23 [1970] AC 806. 24 Thomas v The Agency.Blue [2018] QCATA 43, [65] citing with approval Brown v Brown (1905) 5 SR (NSW) 146. 25 Letter Child Support Smart Centres to Stephanie Cavenett, dated 13 October 2015. -- 7 of 9 -- 8 decision related to whether Mr Cavenett’s payments should be credited towards his child support. Its decision was that they should not be, because of ‘no mutual intention’. In other words, the Agency could not find an Agreement for the payments to be credited towards child support. [35] Contrary to Mr Cavenett’s submission, that does not mean that the Agency did not recognise an Agreement for him to pay school fees. Indeed, the Agency’s decision is consistent with the Tribunal’s finding of an Agreement for him and Ms Cavenett to pay school fees separately from child support payments. [36] The Tribunal did not explicitly refer to each and every element of what constitutes a binding Agreement and its terms. However, the Tribunal did summarise the evidence that it found to be relevant. It was not necessary for the Tribunal to detail each factor that it found to be relevant or irrelevant in making its ultimate findings,26 particularly in the minor civil disputes jurisdiction where the Tribunal’s mandate to deal with matters fairly, quickly and economically is most acute.27 [37] No judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.28 Based on the evidence, it was open for the Tribunal to find that: a) Ms Cavenett made an offer to Mr Cavenett for her to contribute half the fees towards their children’s private schooling in consideration of Mr Cavenett also paying half those fees; b) Mr Cavenett accepted that offer verbally and by his conduct in making payments separate from his obligation to make child maintenance payments; and c) Mr Cavenett and Ms Cavenett had an intention to create legal relations.29 [38] Having read the transcript and considered the evidence, I find nothing to indicate that the Tribunal acted on a wrong principle, or made mistakes of fact affecting its decision, or was influenced by irrelevant matters. The evidence was capable of supporting the Tribunal’s conclusions. [39] This ground of appeal is dismissed. 26 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270. 27 QCAT Act, s 3, s 4. 28 Slater v Wilkes [2012] QCATA 12, [6], citing QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Drew v Bundaberg Regional Council [2011] QCA 359, [19]. 29 See Richards v Tanner [2010] QCATA 82 where the Appeal Tribunal upheld a loan agreement between parties who had been in a relationship for nine years. -- 8 of 9 -- 9 Should the Appeal Tribunal grant leave to appeal? [40] Leave will not be granted where a party simply desires to re-argue the case on existing or additional evidence.30 A clear purpose of the requirement for leave, before a party has the right to appeal, is to prevent any attempt to simply conduct a retrial on the merits of the case.31 [41] Although Mr Cavenett may dispute the Tribunal’s conclusions, mere disagreement with them is not enough to grant leave to appeal – the Tribunal’s findings were open on the evidence.32 [42] There is no question of general importance for the Appeal Tribunal to determine. There is no reasonably arguable case that the Tribunal was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused. What is the appropriate Order? [43] The appropriate Order is: Leave to appeal refused. 30 Piric & Anor v Claudia Tillier Holdings Pty Ltd [2012] QCATA 152, [12] (Wilson J). 31 Ibid. 32 Thomas v The Agency.Blue [2018] QCATA 43, [96]. -- 9 of 9 --