Dyne v Hasbach [2014] QCATA 189

CITATION: Dyne v Hasbach [2014] QCATA 189 PARTIES: Christina Lesley Jo-Anne Dyne (Applicant/Appellant) v Dominic Hasbach (Respondent) APPLICATION NUMBER: APL003 -14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 21 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – where de facto relationship ended – where financial agreement – where one party incurred debt in the name of the other after financial agreement signed – where application for reimbursement – whether tribunal had jurisdiction - whether grounds for leave to appeal Family Law Act 1975 (Cth) ss 4, 90UD(2) Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Ms Dyne and Mr Hasbach lived together in a de facto relationship from 2005 to 2011. Following their separation, they entered into a Financial Agreement. -- 1 of 3 -- 2 [2] The parties shared a credit card. Mr Hasbach was the primary card holder and Ms Dyne the secondary card holder. At the time of the financial agreement, the credit card balance was nil. [3] Shortly after the Financial Agreement was signed, Ms Dyne used the credit card, accruing a debt of $7,500. She did not make any payments. Mr Hasbach, as primary card holder, was responsible for the credit card debt. He filed an application in the tribunal for an order that Ms Dyne repay to him the debts she incurred on the credit card. [4] Ms Dyne submitted that the tribunal did not have jurisdiction to hear Mr Hasbach’s application because it was not a minor civil dispute. Ms Dyne submitted that the true nature of the proceeding was a de facto Financial Cause because it involved proceedings with respect to the distribution of property after the breakdown of a de facto relationship. Alternatively, Ms Dyne submitted that Mr Hasbach was prohibited from making the application by the terms of the Financial Agreement. Ms Dyne asked that the application be struck out or transferred to the Magistrates Court. [5] The tribunal found that the claim was based upon a debt and that the parties’ de facto relationship did not, of itself, mean that the tribunal did not have jurisdiction. The tribunal refused the application to transfer and/or strike but the learned Adjudicator noted that, after proper consideration of the material, the tribunal might agree with Ms Dyne and find that it should be a matter for another Court. [6] Ms Dyne wants to appeal that decision. She says the learned Adjudicator erred in finding the tribunal had jurisdiction when it has no jurisdiction for a de facto Financial Cause. She says the learned Adjudicator erred in failing to find that the Financial Agreement prohibited Mr Hasbach’s application. [7] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.1 Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 [8] Section 4 of the Family Law Act 1975 (Cth) defines a de facto financial cause to include proceedings about the distribution of property. Mr Hasbach’s claim was not framed as a claim for the distribution of property, for the obvious reason that the distribution of property – the finalisation of the financial relationship – occurred with the execution of the Financial Agreement. [9] A Financial Agreement can deal with how property or the financial resources the parties had or acquired during the former de facto relationship are to be distributed3. 1 QCAT Act s 142(3)(a)(i). 2 Pickering v McArthur [2005] QCA 294 at [3] per Keane JA. 3 Family Law Act 1975 (Cth) s 90UD(2). -- 2 of 3 -- 3 [10] The Financial Agreement signed by the parties did deal with how all the property was to be divided. The agreement was expressed to be in full and final settlement of all matters between the parties. It provided that it could be pleaded as a bar to any action arising out of the relationship. [11] While the Financial Agreement may have dealt with the ownership of the credit card, the responsibility for any debt that existed at the time, and who might keep the benefit of the credit card facility, the Financial Agreement could not deal with the distribution of a future debt about which Mr Hasbach knew nothing. The Financial Agreement could not contemplate, or deal with, Ms Dyne’s use of Mr Hasbach’s credit card after the relationship ended unless it was an aspect of Ms Dyne’s maintenance. The agreement made it clear that there was no contemplation of maintenance after the relationship broke down. [12] The bar to proceedings was limited to matters arising out of the relationship or the agreement. The debt was neither. It arose after the relationship and was not connected with the agreement. It therefore fell outside the terms of the prohibition against suit. [13] The learned Adjudicator was right to find that the tribunal had jurisdiction to hear the dispute. There is no reasonably arguable case that he was in error. Leave to appeal should be refused. -- 3 of 3 --