Christie v Little & Anor [2011] QCATA 161

CITATION: Christie v Little and Anor [2011] QCATA 161 PARTIES: Ms Julie Dawn Christie v Ms Michelle Susan Little, Mr David Newton APPLICATION NUMBER: APL054-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Peta Stilgoe, Member DELIVERED ON: 5 July 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. Decision of 1 December 2010 set aside and the following decision substituted: That the respondents pay the applicant $24,708.96 within 21 days of the date of this order. CATCHWORDS: MINOR CIVIL DISPUTES – where loan between sisters – where terms of loan silent about repayment – where Member found that terms of loan uncertain and dismissed claim LOAN – where request for loan made by sister but payment made to brother-in-law – whether sister liable for repayment of those amounts INTEREST – where claim for interest from date of loan – where basis of claim for interest not explained – where no explanation for delay in seeking recovery APPEALS – whether grounds for leave to appeal – where first respondent challenged interim order joining second respondent – whether challenge within time -- 1 of 4 -- 2 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii) Ogilvie v Adams [1975] VR 1041 Young v Queensland Trustees Ltd (1952) 99 CLR 560 Boyd-King & Anor v Evans & Anor [2002] QDC 072 Manson v Collins [2010] QCATA 63 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION Mr Oliver [1] In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes. Ms Stilgoe [2] Ms Christie and Ms Little are sisters; Mr Newton is Ms Little’s estranged husband. Over the course of almost 12 months, at Ms Little’s request, Ms Christie lent $21,290.00 to cover a range of household and business expenses. As one might expect between sisters, the terms of the loans were not reduced to writing. [3] Ms Little admitted that she was indebted to her sister in the sum of $6,300 but denied liability for the balance on the ground that Ms Christie made those payments to Mr Newton. [4] At the hearing of the dispute, the learned Member dismissed Ms Christie’s claim because the terms of the repayment were uncertain. Ms Christie has filed an application for leave to appeal on the basis that the learned Member’s decision in this regard was an error of law. [5] Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? -- 2 of 4 -- 3 [6] Ms Christie has referred the appeals tribunal to a number of authorities for the principle that, if a contract of loan is silent as to the repayment obligation, then it is repayable instantly. That must be the correct position as Fullager J outlined1: In my opinion there can be no doubt as to how the aforesaid question of construction should be answered, and indeed I consider that, from the late 17th century at the latest, there could be only one answer to it, namely that the case discloses a loan the only terms of which were those acknowledged in writing by the borrower to the lender, and no demand is necessary to found the cause of action for repayment, and the cause of action commenced instanter simpliciter (i.e. with nothing at all said as to repayment), the money is repayable instanter. [7] His Honour’s approach has been confirmed by the High Court2 and the District Court in Queensland.3 The learned Member was in error in finding that the absence of any term for repayment of the loan meant that Ms Christie was not entitled to an order in her favour. There is a reasonably arguable case of error in the primary decision and there is a reasonable prospect that Ms Christie would obtain further substantive relief if leave was granted. [8] In responding to the application for leave to appeal, Ms Little urges the appeals tribunal to order that she pay the admitted $6,300 but says that: a) The appeals tribunal erred in adding Mr Newton as a party; and b) She should not be liable for payments made to Mr Newton’s account. [9] Mr Newton was added as a party by order of the tribunal on 28 September 2010. That decision was an interim decision of the tribunal, so Ms Little requires the leave of the tribunal to appeal it.4 Any application for leave should have been filed by 9 November.5 Ms Little’s arguments in that regard are, therefore, out of time. [10] The evidence clearly shows that the requests for the sums that were paid to Mr Newton’s account were, initially, made by Ms Little to her sister.6 Based upon this evidence, the learned Member was entitled to find as he did7 that Ms Little and Mr Newton were joint and severally liable for the debt. That finding accords with common sense; while it is readily conceivable that sisters may loan each other money without the need for a formal document, it is unlikely that the same courtesy would have extended to a brother-in-law. [11] Ms Christie’s initial application included a claim for interest at 10% for 630 days. The basis of the claim for interest is not articulated but it is clear 1 Ogilvie v Adams [1975] VR 1041 at 1043. 2 Young v Queensland Trustees Ltd (1952) 99 CLR 560 at 566. 3 Boyd-King & Anor v Evans & Anor [2002] QDC 072. 4 Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(a)(ii). 5 Manson v Collins [2010] QCATA 63 at [7]–[9]. 6 Transcript page 7, lines 20–23, page 8, lines 23–27, page 10 lines 15-23. 7 Transcript page 15, lines 22-47. -- 3 of 4 -- 4 that the agreement between the sisters was silent about interest. If the claim for interest is based on Supreme Court Act interest, then Ms Christie has not explained the delay from 2008 to 2010 in bringing the application. If the forbearance was a question of sisterly concern, Ms Christie cannot now ask the tribunal to award her interest for that forbearance. An award of interest at 10% for the period from the date the claim was filed in the tribunal to the date of this decision, a period of 455 days is appropriate. The total amount due, therefore, is: Claim $21,290.00 Filing fee 250.00 Interest 2,653.96 Total $24,193.96 [12] Ms Christie has also applied for an order that Ms Little pay the costs of the filing fee for the application for leave to appeal ($515), service fees ($40.30) and audio recording costs ($16.00). The filing fee is an appropriate cost but Ms Christie has not provided the appeals tribunal with invoices for service or the audio recording. I note, too, that service was effected by post. Those costs should not be allowed. [13] Leave to appeal should be granted and the appeal allowed. The learned Member’s decision of 1 December 2010 is set aside and the following decision is substituted: That the respondents pay the applicant $24,708.96 within 21 days of the date of this order. -- 4 of 4 --