Carr v North [2012] QCAT 392

CITATION: Carr v North [2012] QCAT 392 PARTIES: Justin Stanley Carr v Verity Kate North APPLICATION NUMBER: MCDO246-12 MATTER TYPE: Other minor civil disputes matters HEARING DATE: 28 June 2012 HEARD AT: Brisbane DECISION OF: Paul Favell, Member DELIVERED ON: 3 July 2012 DELIVERED AT: Brisbane ORDERS MADE: The respondent to pay the applicant $25,000.00 by 4pm 19 September 2012.1 CATCHWORDS: Whether a money loan or a gift – if loan, terms of loan – if money repayable – if money repayable, when – whether interest APPEARANCES and REPRESENTATION (if any): APPLICANT: Justin Stanley Carr RESPONDENT: Verity Kate North REASONS FOR DECISION [1] The applicant seeks an order from the Tribunal that the respondent pay $25,000.00 together with a filing fee of $265.00. Interest is claimed for 365 days at 10% per annum. [2] The applicant and the respondent were for a time involved in a personal relationship. [3] The applicant was a business development manager and the respondent was at times part-employed by Harcourts and the proprietor of a beauty business and entertainment business. 1 Amended by order of the Tribunal on 20 August 2012. -- 1 of 4 -- [4] The applicant was in the process of building a house on land that he owned at North Lakes and the respondent was paying off a house at a different address at North Lakes. [5] At some stage, the applicant moved in with the respondent at her house. He says that that was convenient because he and the respondent wanted to save money. He says that the arrangement was that he would pay half of all the utilities and other bills for the house. He did not otherwise pay rent. [6] The applicant‟s claim is that he lent money to the respondent and he now wants to be repaid. [7] The applicant contends that the respondent is indebted to him for $28,248.00 made up as a loan of $15,000.00 in respect of a Mercedes debt, a loan of $3,500.00 to complete the purchase of a Murano car, a loan of $4,270.00 for carpets at the respondent‟s house and a loan of $5,478.00 in respect of bench tops at the respondent‟s house. [8] Where a transfer of money is not stipulated to be either a loan or a gift, the contrary evidence provided by each party must be evaluated to determine whether the transfer was a gift (in which case in order to be effective at law, there must be contemporaneous delivery and intention to gift) or whether the transfer had any of the features of a loan (i.e. a provision for interest, or whether any repayments have been made) (Ozick v Ozick [2012] FMCAfam 310). [9] A loan from one person to another does not require a contract for a loan, it may be created simply by the agreement to transfer the money. It is necessary to look to the intention of the parties at the time the money was transferred, as the transfer of money must be with the knowledge and acquiescence of the parties, including an intention to create legal relations (Zamia Investments Pty Ltd & Anor v Mesana Pty Ltd [2011] QCA 274). [10] Having examined the available evidence, it must be decided on the balance of probabilities whether the transfer was a loan or a gift (Ozick v Ozick [2012] FMCAfam 310). [11] If a loan is established, in the absence of an agreement as to repayment, the law will presume that the debt is repayable on demand, or at a reasonable time thereafter (Zamia Investments Pty Ltd & Anor v Mesana Pty Ltd [2011] QCA 274). In every contract for the loan of money there is an implied obligation on the part of the borrower to repay the loan (NZI Capital Corp v Child (1991) 23 NSWLR 481). [12] That the amounts of money asserted were paid by the applicant to the respondent or paid directly to providers of services on behalf of the respondent, is not disputed. [13] The respondent disputes that she has an obligation to pay the applicant the money claimed because she says it was not a loan but rather it was a gift. To the extent that the claim exceeds the monetary jurisdiction of the minor civil dispute jurisdiction of this Tribunal, the applicant seeks $25,000.00. -- 2 of 4 -- [14] It is common ground that there was no agreement as to any timing for repayment, nor was there any agreement as to an interest rate which was to apply to the money advanced. [15] When Mr Carr gave evidence, he said that on each occasion he said words which included the word „loan‟. [16] With respect to the $15,000.00 loan concerning the Mercedes debt, he said he offered to the respondent the loan and said he “would loan $15,000.00 to clear the debt.” He said that the respondent was relieved and excited that she could get rid of the debt and she accepted the $15,000.00. He said that he would not give $15,000.00 as a gift. He said that the circumstances surrounding the offer made by him were that he received a phone call from the respondent in which she was clearly distressed and he told her during the conversation that he would loan her $15,000.00 and discuss it when he got home. He said that he told her she could repay it when she could afford to. [17] The respondent, at some stage, was purchasing a Murano vehicle but she could only borrow $50,000.00 towards the cost of the vehicle. The applicant said that he offered to loan the balance of the cost of the vehicle to the respondent and said he told her there was no rush in paying it back but she could pay it back when she could afford to pay it back. [18] So far as the moneys advanced in respect of the carpet and the kitchen bench tops are concerned the applicant said that he offered to loan the respondent money to do the carpets in the house and told her that she would have to pay him back. However, no time frame for repayment was set. [19] He said that whilst he was living at the respondent‟s house he contributed equally to the bills and towards the end of the relationship, because of an illness of the respondent recently diagnosed as Lupus, he would “tip in more for the bills.” [20] The respondent gave evidence that that applicant never used the word „loan‟ in conversations with her. She also said there was never any mention of the word „gift‟. There was no mention of any repayments or interest. [21] In giving her account the respondent, in my view, was vague. I do not find that she is in any way dishonest but on her own admission, on occasions when these money issues arose she was distraught and upset. [22] I accept the assertions by the applicant that he did offer to loan the respondent various amounts of money as set out above and that the respondent accepted those offers of amounts to be loaned. I also accept that he always intended the money advanced to be loans and not gifts. The agreement was in itself very vague but I think it was a loan on terms that it would be repaid when the respondent was in a position to make the repayment or at a reasonable time after demand. [23] Demands have been made for repayment and no repayment has been made or offered. -- 3 of 4 -- [24] There was no agreement as to interest and I find that the true nature of the advances was that they were loans with no interest component repayable on demand or at a reasonable time thereafter. [25] The order is that the respondent pay the applicant $25,000.00 by 4pm 19 September 2012.2 2 Decision corrected, at the Tribunal's initiative, pursuant to section 135 (1) of the Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 4 --