Bradshaw v Whitcombe [2017] QCATA 132

CITATION: Bradshaw v Whitcombe [2017] QCATA 132 PARTIES: KIMBERLEY JANE BRADSHAW ALAN JOSEPH BRADSHAW (Applicant/Appellant) v SCOTT DANIEL WHITCOMBE (Respondent) APPLICATION NUMBER: APL026-17 MATTER TYPE: Application and Appeals HEARING DATE: 21 November 2017 HEARD AT: Brisbane DECISION OF: Justice Carmody DELIVERED ON: 22 November 2017 DELIVERED AT: Brisbane ORDERS MADE: THE APPEAL TRIBUNAL ORDERS THAT: 1. The application for leave to appeal and appeal is allowed. 2. The tribunal’s dismissal of Q60/16 is set aside. 3. The matter is returned to the tribunal for reconsideration. 4. The tribunal is directed to specifically determine the questions whether:  the application is a proceeding for a minor civil dispute;  the 1st applicant has an accrued implied legal right to force the respondent to financially contribute, equally or proportionately, to the discharge of the standing debit balance of the bank debt in 2012 either on contract or restitution principles because (even though unrequested) he accepted the -- 1 of 4 -- 2 benefit of being released from his liability to repay the lot at the 1st applicant’s expense, making it unjust to keep it without paying for it. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where former de facto partners co- borrowed $15,000 from a bank to purchase a motor vehicle – where the loan was increased to $40,000 on being refinanced in 2011 – where the applicant’s father later took over the loan in his sole name – where the respondent relieved of his remaining obligations under the loan without request or knowledge – where the tribunal dismissed the minor debt claim for lack of jurisdiction – whether the dispute arises out of the de facto relationship and statute-barred – where the Family Law Act 1975 (Cth) de facto provisions do not exclude the operation of state laws – where leave is granted and appeal allowed and the matter is returned to the tribunal for reconsideration with specific directions Family Law Act 1975 (Cth) s 4, 39A(5), 44(5)(a), 90RC(2)(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1), Sch 3 APPEARANCES and REPRESENTATION (if any): APPLICANTS/APPELLANTS Self represented RESPONDENT Self represented REASONS FOR DECISION [1] The 1st applicant and respondent were de facto partners for five years from 2007. In 2010 they bought a car together for $15,000 jointly borrowed from a bank. They refinanced on 22 September 2011, co-borrowing $40,000 at a variable interest rate of 17.5%. [2] The 1st applicant retained the car after the relationship breakdown in 2012 but could not meet the $860 per month repayments on her own so her father (the 2nd applicant) paid out the joint loan and took out a new one in his sole name secured by a home mortgage to reduce the instalments to $350 per month. [3] The vehicle is currently worth $5000. -- 2 of 4 -- 3 [4] In 2016 solicitors for the 1st applicant wrote to the respondent demanding $14,107 in a lump sum or on agreed terms for his “attributed liability” under the bank loan.1 He refused. [5] The applicants claimed the disputed amount as a minor debt in Q60/16. [6] The respondent denied any indebtedness and challenged QCAT’s jurisdiction to hear and determine the dispute on the grounds that the family court has exclusive jurisdiction over de facto property disputes. [7] The tribunal dismissed the claim for lack of jurisdiction. [8] The applicants now apply for leave to appeal that decision as wrong in law and amounting to a refusal to exercise statutory and judicative functions. [9] Leave was granted because the ground was considered reasonably arguable and raised a question of general importance. [10] The respondent is correct to the extent that s 39A(5) of the Family Law Act 1975 (Cth) (FLA) provides that a “de facto financial cause” cannot be instituted otherwise than under its provisions and, ordinarily, state laws are superseded. [11] However, “de facto financial cause” means proceedings between de factos with respect to the distribution of their property after the breakdown of the relationship.2 [12] As joint borrowers both the 1st applicant and respondent have ownership interests in the car. However, the QCAT proceedings do not relate to a de facto financial cause because they are not “with respect to the distribution” of those interests. [13] Any valid claim against the respondent does not derive from the fact that the 1st applicant and the respondent were de facto partners but is based solely on the law of obligations. The domestic relationship was purely coincidental to the subject matter of the proceedings and the dispute does not “arise out of” its breakdown. The federal power to alter property rights is not engaged to the exclusion of state laws.3. [14] Moreover, a proceeding under the federal de facto financial provisions can only be invoked as of right within the standard application period of 2 years after the relationship ended.4 Accordingly, even if it was a de facto financial cause it could not have been instituted under the FLA after 2014 without leave.5 1 Morton & Morton letter – 21 June 2016. 2 Family Law Act 1975 (Cth) s 4. 3 FLA s 90RC(2)(a). 4 FLA s 44(5)(a). 5 FLA s 39A(5). -- 3 of 4 -- 4 [15] For these reasons it was an error of law for the tribunal to refuse to make orders it considered fair and equitable to resolve the dispute between the 1st applicant and the respondent and, therefore, inappropriate to dismiss the application.6 [16] The 2nd applicant’s claim by contrast was rightly dismissed. The respondent has no legally recognised obligation to him and, therefore, he has no interest to enforce in QCAT proceedings. [17] The tribunal’s dismissal order is set aside and the matter of the dispute between the 1st applicant and the respondent is returned to the tribunal for reconsideration with or without hearing any additional evidence as may be necessary or expedient for resolving disputed facts. [18] The tribunal is directed to specifically determine the questions whether:  the application is a proceeding for a minor civil dispute;  the 1st applicant has an accrued implied legal right to force the respondent to financially contribute, equally or proportionately, to the discharge of the standing debit balance of the bank debt in 2012 either on contract or restitution principles because (even though unrequested) he accepted the benefit of being released from his liability to repay the lot at the 1st applicant’s expense, making it unjust to keep it without paying for it. 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1); Sch 3 paragraph (1)(a). -- 4 of 4 --