Cunningham v Jones [2011] QCATA 203

CITATION: Cunningham v Jones [2010] QCATA 203 PARTIES: Mark Cunningham v Sharon Mary Jones APPLICATION NUMBER: APL021-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver Senior Member DELIVERED ON: 21 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is granted 2. The Tribunal’s decision of 30 November 2010 is set aside 3. The minor civil dispute proceeding is referred back to the minor civil disputes jurisdiction to be reheard by another Tribunal Member or Adjudicator. CATCHWORDS : Minor Civil Dispute – insufficient weight given to the evidence – where inferences from the evidence given could lead to a different outcome if properly considered. Queensland Civil and Administrative Tribunal Act 2009; sections 142(2) and 147 Fox v Percy (2003) HCA 22 QUYD Pty Ltd v Marvass (2009) 1 Qld R 41 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION 1. Mr Cunningham contends that on 30 January 2010 he lent to Ms Jones $5,000.00 to assist her to obtain finance through a finance broker, Mr Mark Barlow, to purchase a Gloria Jean’s Coffee franchise at Stafford. 2. Ms Jones denies that the money was lent to her. As a consequence of this denial Mr Cunningham commenced an application in the Tribunal to recover the money. The application was dismissed after a hearing on 30 November 2010. 3. Mr Cunningham has now filed an application for leave to appeal or appeal. Leave to appeal is necessary as this is an appeal from a decision in a minor civil dispute.1 Mr Cunningham contends that the decision of the learned Adjudicator was wrong and against the weight of the evidence and this Appeal Tribunal should therefore correct a substantial injustice. 4. Although it is not this Tribunal’s task to decide where the truth lay between the competing versions given by the parties it is necessary to understand how the learned Adjudicator came to the decision he did2. That of course entails a consideration of the evidence that was before him. 5. The critical and determinative feature in the proceeding, as identified by the learned Adjudicator, was the absence of any documentary proof that the $5,000.00 was handed over to Mr Barlow on 30 January 2010. Had a receipt been produced, that would have satisfied the Tribunal that Ms Jones had received the $5,000.00. As no receipt was produced the application was dismissed. However in the absence of the receipt, and given the sworn testimony of Mr Cunningham the Tribunal was then obliged to consider not only the competing versions given by the parties, but also any other objective evidence that might give support to either version. 6. Mr Cunningham produced two signed statements of evidence. The first was from his partner Ms Ferriday who swore that Ms Jones had discussed with her the money paid to Mr Barlow and that she was still trying to secure finance to purchase the Gloria Jean’s at Stafford. Ms Jones told her that Mr Barlow had never emailed a receipt, as Mr Cunningham says he was going to do. Ms Jones or Mr Jones chose not to ask Ms Ferriday any questions when invited to do so at the hearing. Therefore, her evidence is unchallenged. 7. Mr Peter Amiet was in Bali at the time of the hearing. However his statement was received into evidence and he also said that he had “undertaken conversations with Mark Barlow where he stated he has obtained $5,000.00 from Sharon Jones and Mark Cunningham”. Mr 1 Queensland Civil and Administrative Tribunal Act 2009, s 142(3). 2 Fox v Percy (2003) HCA 22 at [32]. -- 2 of 4 -- 3 Cunningham told the Tribunal that Mr Amiet was available to give evidence by telephone. He was not called nor was he required for cross examination. Therefore his evidence is unchallenged. 8. In addition to the evidence of Ms Ferriday and Mr Amiet there are other objective facts which support Mr Cunningham’s version. Firstly, there was a withdrawal of $5,000.00 from his account the day before the meeting. It seems this account was a line of credit and the withdrawal extended the advance to $-206,744.19. Secondly, there was a meeting between himself, Mr Barlow and Mr and Ms Jones on 30 January 2010 at the Gold Coast. Also, although the relationship between Ms Jones and Mr Cunningham deteriorated later in the year, they were on good terms in January 2010. 9. Against this evidence is a statement of Mr Jones denying the money was handed over at the meeting. Ms Jones produced a signed statement by him but he was not available at the hearing to be questioned. He also addressed matters that were not relevant to the subject matter of the proceeding although they may have been marginally relevant to credit. Therefore this raises a question as to the probative value of his evidence. 10. Mr Barlow was at the hearing. He confirmed the meeting took place but in the letter he wrote to Ms Jones on 14 September 2010 he does not address the question as to whether the $5,000.00 was paid to him. This letter was in response to a letter from Ms Jones, presumably to obtain his evidence as to what occurred at the meeting on 30 January 2010. That letter of request, if it can be called that was not produced at the hearing. It is surprising that he does not address the issue of the payment directly in his letter. When questioned by the learned Adjudicator in the hearing he did deny receiving the $5,000.00. However he then went on to say that “going through the figures” it was apparent that they would not get finance. One can reasonably assume that this assessment would not have been made by Mr Barlow unless he was paid the fee for him to make this assessment. Mr Cunningham’s evidence3 that Mr Barlow was to charge a $5,000.00 fee to assist people to obtain finance was not challenged. 11. The question remains, what was Mr Cunningham doing at a meeting with Mr and Ms Jones and Mr Barlow if it was not to provide some financial assistance, particularly in the face of the unchallenged evidence that he withdrew the money from his account the day before. 12. Although not decisive, there are two other matters that tend to support the bona fides of Mr Cunningham. Firstly, Ms Jones did not file a response to the application. She says she did this on advice from a solicitor. It is difficult to imagine that a solicitor would advise a client not to file a response/defence to a claim for monies lent brought in the Tribunal when there is clear instruction on the application about filing a response. 3 Transcript Page 5 Line 15 -- 3 of 4 -- 4 13. Secondly, Mr Cunningham filed an application in the Tribunal in an attempt to have Gloria Jean’s Coffees at Stafford produce documents. Mr Selles, Group Legal Counsel, for Gloria Jean’s objected to the production of documents on various grounds. The application was not pursued. This evidence is marginally relevant as being consistent with the loan being made for the stated purpose. 14. Finally, the result did not turn on the credibility of the witnesses before the Tribunal. It turned on Mr Cunningham’s failure to have a “paper trail” to establish that the money was handed over. There were no findings as to credit. 15. This is one of those rare cases where the conclusion is contrary to not only the compelling inferences to be drawn from the objective evidence that the money was handed over, but also the direct evidence of Mr Cunningham’s witnesses. As the High Court said in Fox v Percy: “In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must not ‘shrink from giving effect to its own conclusion.”4 16. Quite obviously the lack of a receipt for the payment was critical evidence in coming to the result in the hearing environment of the minor civil dispute jurisdiction where time is limited. But even so this matter demonstrates that all relevant evidence must be considered when making the decision. 17. To not interfere with this decision would lead to an injustice to the applicant5 and therefore leave to appeal should be granted. As this is an error of both mixed fact and law the Appeal Tribunal can confirm or amend the decision, set it aside and substitute its own decision or refer it back to the minor civil disputes jurisdiction for rehearing.6 Although there is persuasive evidence to support Mr Cunningham’s case there are issues of credibility which need to be considered and which cannot be considered on the appeal. I therefore propose to refer the matter back to the minor civil disputes jurisdiction to be reheard. 18. For the reasons set out above the appeal should be allowed. The decision of the Tribunal should be set aside. 4 Fox v Percy (supra) at 209 per Gleeson CJ, Gummow an Kirby JJ. 5 QUYD Pty Ltd v Marvass (2009) 1 Qld R 41. 6 Queensland Civil and Adminstrative Tribunal Act 2009, s147. -- 4 of 4 --