Wallader v Waterson[2022] QCAT 176

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this application about?

1. [1]
   On 15 March 2004 the applicants paid $25,000 to their daughter, the respondent, and her then husband. The parties are in dispute as to whether the payment was a gift to be kept, or a loan to be repaid. 
2. [2]
   The applicants say that prior to the money being paid, Mr and Mrs Waterson agreed verbally that the advance was a loan, that their liability to repay it was “joint and several”, that interest would accrue at 3.5%, and the loan would be repaid to Mr and Mrs Wallader progressively on a “pay what you can, when you can” basis.
3. [3]
   In 2018, the respondent and her husband separated. When their home was sold the applicants expected the loan to be repaid, but it was not, and the respondent and her estranged husband denied that money was ever borrowed.
4. [4]
   In 2021, the respondent received a terminal cancer prognosis with the consequence that her life insurance paid out. After Mr Waterson agitated about his entitlement to the proceeds, and as she was then undergoing chemotherapy and unwell, the respondent paid the sum of $340,000 to an account controlled by the applicants for safe-keeping, until she could obtain legal advice on the issue.
5. [5]
   When the time came to return the insurance proceeds to the respondent, the applicants repaid the proceeds but withheld $49,108.64, being the $25,000 advance, plus their calculation of interest. They later repaid the withheld interest, retaining the sum of $25,000 only.
6. [6]
   On 27 October 2021 the applicants filed an application for a minor civil dispute – minor debt seeking orders that:

   1. (a)
      they be permitted to keep the $25,000 in payment of the debt;
   2. (b)
      the respondent pays interest on the debt; and
   3. (c)
      the respondent pays their costs of the application.
7. [7]
   The applicants offered to pay the $25,000 withheld to the Tribunal but were informed by the Registry that this was not possible.^[1]
8. [8]
   A counter claim cannot be filed in response to a minor debt claim.^[2]
9. [9]
   Therefore, the respondent filed her own application for a minor civil dispute - minor debt^[3] seeking to recover the retained $25,000 from her parents, and it was heard and has been decided with this application.  The two matters are inextricably linked and the decisions should be read together. 

Procedural matters

10. [10]
    It is important to note the hardships each party to these proceedings currently faces, in addition to the sad breakdown of their familial relationship.
11. [11]
    The applicants say they are in circumstances of financial hardship, with Mr Wallader saying during the hearing that “we have nothing”. Mr Wallader said that he is currently undergoing treatment for bowel cancer, and Mrs Wallader said she has ongoing heart troubles.
12. [12]
    For her part, Ms Waterson battles her terminal cancer diagnosis, is undergoing chemotherapy and is attempting to arrange her financial affairs to benefit her three children.
13. [13]
    Given the hardships each party faced, and the treatments currently being undertaken, at the conclusion of the hearing I invited the parties an opportunity to take time after the hearing to make written submissions, and reply submissions on their respective cases, but they each declined to do so, expressing that they were happy to rest on their cases as presented, and that they preferred closure to the dispute.

The detailed factual background to the claim

14. [14]
    It is not disputed that:

    1. (a)
       the applicants paid the sum of $25,000 to a joint account of the respondent and her husband on 15 March 2004; 
    2. (b)
       the respondent paid the sum of $340,000 to a joint account of the applicants on or shortly after 28 June 2021;^[4]
    3. (c)
       the applicants paid $290,891.36 to the respondent on 17 September 2021;
    4. (d)
       the applicants paid $24,108.64 to the respondent’s solicitor’s trust account on 27 October 2021; and
    5. (e)
       the applicants have withheld $25,000 in their joint account pending the outcome of these proceedings.
15. [15]
    The circumstances in which the various payments were made are disputed.

How did the $25,000 come to be paid by the applicants to the respondent?

16. [16]
    According to the applicants:

    1. (a)
       the respondent and her husband were building a new home but had exhausted bank finance and were unable to complete it with fixtures and furnishings; 
    2. (b)
       Mrs Wallader said that her daughter “came to us in tears” because she and her husband were short of money to complete the house; 
    3. (c)
       the respondent and her husband asked to borrow $25,000 from the applicants to fund the completion of fittings and soft furnishings at the home;
    4. (d)
       the intention of the loan was to help the respondent and her husband “finish the house” to “get comfort for the three kids”;
    5. (e)
       repayment dates were not discussed at the time of the advance, but the applicants did insist that the money “had to be repaid”, progressively on an “as you can, when you can” basis;
    6. (f)
       the applicants discussed with the respondent and her husband, who acknowledged and agreed, that they would have joint and several liability to repay $25,000 plus interest to accrue at 3.5%; and
    7. (g)
       loan funds were raised by applicants taking a mortgage over their home property and an investment property. 
17. [17]
    Mr Wallader said that his experience of lending and securities as a retired banker led him to insist that the respondent and her husband acknowledge (albeit verbally) their responsibility to the applicants to repay the sum advanced as a loan on a joint and several basis.
18. [18]
    In the hearing, the applicants said “in our minds it was a loan because they asked for the funds and said they were running out of money and they couldn’t finish the house”.
19. [19]
    Ms Wallader says she and her husband talked with the respondent and her husband about the applicants’ need to mortgage their properties in order to pay the money.
20. [20]
    According to the respondent:

    1. (a)
       in 2004 she and her then husband had sold a home, tripling their return;
    2. (b)
       they were not in a situation of hardship at the time of the advance and had ample funds available to them to finish the home they were building;
    3. (c)
       she did not approach her parents in tears as alleged and did not request money from them;
    4. (d)
       the applicants gifted the sum of $25,000 unsolicited;
    5. (e)
       there was no discussion about a loan, interest, an obligation to pay or “joint and several” liability;
    6. (f)
       at the time of the gift, the applicants were in the habit of giving, including to other siblings, other family members and even overseas; and
    7. (g)
       the applicants frequently gifted money and were well off at the time.
21. [21]
    The applicants tendered their financial accounts/spreadsheet for the period 1 January 2004 to 31 March 2004 in which they recorded under “Sundries” “Loan to V & P Waterson $25,000”. This is evidence of how the applicants recorded the payment in their own spreadsheet and not evidence of discussions had or agreements reached with the respondent regarding the loan.
22. [22]
    No documents were tendered to evidence that the funds advanced by the applicants were borrowed by them after mortgaging their properties.  This is important, because if this submission is true, it weighs in favour of a finding of a loan rather than a gift. It would be unusual in my view for a party to borrow in order to gift, as opposed to -on-lending money.
23. [23]
    By the same token, the respondent did not tender documents to support her submission that her financial position in 2004 was not one of hardship.
24. [24]
    There are no other documents before the Tribunal from the time of the advance that evidence the nature of the advance: no text messages, no emails, no letters, and no loan agreement, formal or informal.  All discussions of the payment were verbal.

What happened between 2004 and 2018?

25. [25]
    The applicants say they were closely associated with the respondent and her husband and cared for their children daily through their primary schooling days.
26. [26]
    No pressure was imposed by the applicants upon the respondent to repay the loan, the applicants saying they were mindful that the respondent was later paying to privately educate the children through high school. 
27. [27]
    The applicants did say, however, that they regularly reminded the respondent and her husband of their commitment and became concerned at the number of job changes Mr Waterson had during that period and how it might impact their ability to repay the loan.
28. [28]
    In the hearing, the applicants both insisted that they spoke to the respondent and her husband “often” to remind them that “the funds have to come back” and, although they couldn’t recall specific dates, times or events at which these discussions were had, nor could they recall words to the effect of the words they used in these discussions, they described these mentions of the loan as “casual” and “periodic” conversations in which they asked the respondent and her husband for “an update on how they were going”.
29. [29]
    At no point did the applicants give evidence that the respondent during these conversations acknowledged liability or any obligation to repay the debt. The applicants said the respondent and her husband have variously said: “you never lent us any money” or “we never borrowed money from you” when the issue was raised.
30. [30]
    Matters appear to have culminated when Mr Waterson left the marriage in 2018 and in August 2018 when the respondent’s matrimonial home was sold. 
31. [31]
    When asked when they first pursued repayment of the debt, the applicants said they never made a formal demand for repayment.
32. [32]
    When asked when they had first made an informal request for repayment, they referred to an email sent by Mr Wallader to Mr Waterson dated 11 December 2018 in which Mr Wallader said as follows:

Without Prejudice

On strong legal advice, jointly and severally you owe us the accumulated debt of $41,525.05 as at today and your interest rate of 3.5% will be moved to 7% as from the 15th January.

All documentation is in order here and recovery will commence in the first quarter of 2019 and if not paid on demand.

I believe I have given you sufficient time to pay and in fairness have not commenced legal proceedings caused by the knowledge of the amount of School Education Fees for your children.

I will pursue you personally to bankruptcy. Peter Allan Waterson. Severally means if not recovered jointly - Peter Allan Waterson.

33. [33]
    Mr Waterson’s reply, if there was one, was not tendered. He was not called by either party to give evidence in the proceedings, which is unsurprising as neither party gave the impression of being on good terms with him.
34. [34]
    Ms Waterson denied knowing of the 2018 demand for repayment and I note that she was not a recipient of the email.

How did the payment of $340,000 to the applicants occur?

35. [35]
    Between May and June 2021, on account of her terminal cancer diagnosis, Ms Waterson received payouts of her life insurance, totalling $340,000.
36. [36]
    She said that, although she had not disclosed the payment to her husband, someone had – she says it was the applicants, but they deny that - and Mr Waterson had made remarks about his entitlement or his intention to claim the funds.
37. [37]
    Ms Waterson says that when she received the funds, she was in a state of distress over Mr Waterson’s claims, and was quite unwell whilst undergoing chemotherapy.  She says that Mr Wallader suggested that he would “keep the money safe” for her if she transferred it to him until she was in a position to take legal advice about what to do.
38. [38]
    She says she trusted her parents to safe-keep the funds, but asked that a new bank account be set up as a trust account - which the parties also referred to throughout their evidence as a “Christmas account”.
39. [39]
    The applicants say they attempted in branch to open a trust account in their daughter’s name to hold the money, but due to banking regulations, they were unable to do so.  They were also concerned that a “Christmas account” could only be drawn down between 1 November and 31 December in any given year which would have restricted Ms Waterson’s access to it. Therefore, the applicants opened a new joint account in their own names to receive the money and to keep it quarantined from their other funds and accounts.
40. [40]
    When the payment was transferred to them by their daughter, there was no discussion whatsoever of the $25,000 loan or of its repayment. It was understood that upon request, Ms Waterson would receive back all the money transferred to and held in her parents’ account plus interest earned on it.
41. [41]
    When asked when the decision was made to retain $25,000, Mrs Wallader said that the decision was made after her daughter was “abusive” to the applicants.
42. [42]
    She explained that Ms Waterson became upset upon discovering that the money was neither in a trust account or a “Christmas account” and asked for all the money to be transferred back immediately, but this was not possible as banks had by then closed for the day. By this time, the parties had already fallen out over other issues.
43. [43]
    On 16 September 2021 the following text messages were exchanged (among others):

Mr Wallader (DW) 3.33pm:

We do not have the details of where to send the money on my phone or Mums so how we can send it and I leaving for my work – typical – expect everyone to bow down to you and Lord Peter Keep away from our address as I have spoken to the police on your demands^[5] –

Ms Waterson (VW) in reply:

You are a lier I want my money and my things  

That is not your money

That account is [bank details provided]

That my money not yours

DW:

To bad you are to late for today to transfer it – my work is more important and I am leaving now – do not come near our house today or tonight – there will be trouble Vicki – and I will be informing the authorities of my absence and requesting you to be arrested if you do.  The money will be transferred in the morning less the amount we had to put into open the account and the monthly figure we had to pay to maintain the account. We will be placing a report ot he authorities on why we held the money ‘in trust’ as it is presently held – you are so cruel Vicki Waterson thank God your name is not Wallader… Just Go you thief. You and Peter owe us well over $70,000-00 do you want me to deduct that amount before I attend to the transfer – I have the legal right.

VW:

I don’t owe you that money we’re is that coming from I want my $340000 back with the interest made that is not your money…

I want all my money by 9,30 tomorrow all $340,000 and the interest on which was made each month, I don’t owe you any money that my cancer money not any one else’s

DW (5.33pm):

You are still married to Peter take it up with him – it will be held in trust pending legal advice

I will work it out tonight – have all the figures and dates principal and interest

VW (9.39pm): 

You but all my money into my account as well as the interest that has been made that is my Cancer money not yours and there is know principal interest just interest on my money if it not all back in by 11am I will take this further

This money is in account to make interest for me. There no principal interest it is not a loan

44. [44]
    On 17 September 2021 the following messages were exchanged:

VW (11.07am):

You transfer all $340000

DW:

That will not happen Vicki and do not order me again…

VW:

I want money back the $340000 that is my cancer money

DW:

I want our money owed since 2004 – go get from your friend Peter

Not cancer money – life insurance money

VW:

That is cancer and my life insurance money

It is my life insurance money not yours

DW:

Did not say it was mine but I have the very right to collect money owing to us irrespective of where it comes from. It is held in trust pending legal advice and possible action – held as assurance of your and Peter’s dishonesty. got it!

45. [45]
    On 17 September 2021 Mr Wallader wrote to Ms Waterson as follows:

On the Heritage Bank opening time, funds will be transferred to an account as nominated by you…

The amount being transferred is the full amount less what we were expected to place into the account to open and maintain the account and less the amount, plus interest, you and Peter owe us since 2014.

The loan funds Mum and I paid to you on was in two amounts; 25,000 on the 15th March 2004 from our ANZ account; (cheque number has been recorded) and a further $5000 shortly thereafter for soft furnishings at your then property at [address withheld]...

…

The balance remains in the nominated joint account in trust pending legal clarification of my figures and interest charges that are based on a margin over the Reserve Bank base rate for an unsecured loan offered over the period in time; a loan paid and accepted by you both Peter Alan Waterson and Vicki Maye Dora Waterson as a commitment to be repaid jointly and/or severally.

You both have openly stated several times you both do not owe the funds which you both know is incorrect and as adults endeavour to push aside to honour the commitment to we as parents by nominating on several occasions over the time you do not owe the funds.

We have proof of the payment to you both, there is no proof of any repayment and I ask you to provide such proof for consideration.

46. [46]
    On 20 October 2021 Ms Waterson’s solicitors wrote to the applicants and made the following statement (among other things):

We have been instructed by our client that with your consent she transferred to your joint account an amount of $340,000 under an express and/or implied trust that you would return that amount to account upon demand.

47. [47]
    In a reply letter to this correspondence sent the same day, Mr Wallader said (among other things):

Funds transferred to a new account from Vicki Maye Dora Waterson were funds transferred at her request for the purpose of attempting to hide, as I am advised by Vicki Waterson to ‘hide’ funds from her husband Peter Alan Waterson and possibly the Government for the purpose of continual payments to herself. What those payments were; were of no concern to myself or my wife however we did obtain sufficient information the funds were not of a fraudulent nature. Funds were to be held unconditionally and not in a designated trust account and when opening the account, the Bank would not open a designated trust account without the production of a trust deed.

We can prove a quantum of debt owed to both Jill and I by Peter Alan Waterson and Vicki Maye Dora Waterson since in 2004.

Both parties, Peter Alan Waterson and Vicki Maye Dora Waterson have continually over the years denied our funds to be returned and when requested, simply say “we do not owe you anything”.

48. [48]
    Mr Wallader transferred the withheld interest to Ms Waterson’s solicitor on 27 October 2021 and commenced Tribunal proceedings the same day.
49. [49]
    The applicants continue to hold the sum of $25,000 in their joint account pending the outcome of Tribunal proceedings.

What is the legislative framework?

Is this claim within the Tribunal’s jurisdiction?

50. [50]
    Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) describes a minor civil dispute, amongst other things, as “a claim to recover a debt or liquidated demand of money, of up to the prescribed amount”, which is currently $25,000.00, excluding interest and costs. 
51. [51]
    A debt or liquidated demand has been described as a sum of money that can be calculated by reference to a formula, schedule or some other yardstick by which the debt or sum payable can be readily calculated.^[6]
52. [52]
    I am well satisfied that this application falls within the Tribunal’s minor civil dispute jurisdiction over minor debts. 

What issues need to be considered?

53. [53]
    The success of the applicants’ claim requires the following questions to be answered: 

    1. (a)
       Was the applicants’ payment to the respondent a gift or a loan?
    2. (b)
       If a loan, is the applicants’ claim time-barred?
    3. (c)
       Either way, can the Tribunal make an order in these proceedings about the $25,000 held by the applicants?
54. [54]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale.  According to Justice Dixon in Briginshaw v Briginshaw:^[7]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.

Was the applicants’ payment to the respondent a gift or a loan?

55. [55]
    A legally enforceable agreement (contract) requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.^[8] The terms must be certain, and the parties must have capacity to contract. 
56. [56]
    Most contracts need not be in writing, with some exceptions, including section 11 of the Property Law Act 1974 (Qld) (“PLA 1974”) that requires an agreement creating an “interest in land” to be in writing.
57. [57]
    As I observed in Guzman v Bird,^[9] loans between family members are not commonly formalised in a written loan agreement and often do not stipulate when or how the loan is to be repaid.  Parties to these arrangements are often unable to establish that they have an enforceable contract because they fail to establish that the “borrower” had an intention to be bound by the promise to repay and because the terms are not certain.
58. [58]
    The family law and Supreme Court jurisdictions commonly deal with disputes over whether payments from parents to child are gifts or loans.  In determining whether funds loaned to a party should be considered a loan, courts will consider several factors including:

    1. (a)
       the existence of any written loan agreement;
    2. (b)
       the terms of repayment;
    3. (c)
       whether any loan repayments were in fact made by the parties;
    4. (d)
       evidence of any discussions held between the parties as to the existence and terms of the loan;
    5. (e)
       whether there was any expectation of repayment; and
    6. (f)
       whether there was any security provided in respect of the loan, such as a registered mortgage.
59. [59]
    Chaudhary v Chaudhary^[10] involved a wife’s challenge to a mortgage secured over the matrimonial home in favour of her former father-in-law. The Court of Appeal considered whether the advances made constituted a gift by the father to the husband, or a loan to him.  The primary judge had found the payment to be a gift, describing the loan and mortgage a “legal device to attempt to quarantine the money from the jurisdiction of the Family Court in the event of the breakdown of the marriage” but the Court of Appeal disagreed with this assessment and upheld the loan and mortgage.
60. [60]
    Sackville AJA observed that:^[11]

There has been much discussion in recent times about the unaffordability of housing, particularly for young people, in many parts of Australia. One consequence of declining housing affordability is that young adults very often need and sometimes receive assistance from parents (or other benefactors) to enter the housing market. The occasion for providing that assistance may be that a young couple is in or about to start a relationship.

Some benefactors in these circumstances may be quite content to make a gift of money to assist with the purchase of the property. Others may be willing to assist with a purchase but approach the matter more circumspectly. For example, they may be willing to provide funds to assist with the purchase of a property without necessarily expecting repayment if all goes well. Yet they may also wish to protect the family’s resources in the unhappy event of the relationship breaking down.

There are a number of ways in which these objectives might be achieved. One is for the benefactors to make a loan (with or without interest) to one or both parties to the relationship and to take a mortgage over the property to secure repayment of the funds advanced in certain specified circumstances. If the terms of the loan are not onerous and if the borrower or borrowers receive appropriate advice and understand the nature of the transaction, it cannot be fairly described as a “device” to avoid the operation of the Family Law Act 1975 (Cth). In these circumstances, the legal form of the transaction reflects its substance.

61. [61]
    Chaudhary is distinguished from the current proceedings in several important respects:

    1. (a)
       all parties in Chaudhary were particularly attuned to formalising financial matters, the husband being described by the primary judge as having, from early in the relationship, “evinced an attitude of not permitting “affairs of the heart” to cloud his judgment about financial matters”;^[12]
    2. (b)
       the advance was $1,200,000 to assist specifically in the purchase of a property;
    3. (c)
       the husband and wife and had entered into a Financial Agreement regarding the treatment of their assets on separation;^[13]
    4. (d)
       the borrowing husband and wife signed a letter prior to accepting the funds confirming that they were a loan, that cross-referenced the terms of their Financial Agreement; and
    5. (e)
       a later loan, “Borrower’s Acknowledgement” and mortgage were signed confirming the terms of the advance, with the involvement of solicitors.
62. [62]
    Towards the end of the hearing, in final submissions, the applicants said that it is not unfair for them to retain the money because they “honestly gave it” as a loan to the respondent and Mr Waterson, Mr Wallader expressing that: “it was given to them in good faith and I just want my money back”.
63. [63]
    The applicants face a considerable challenge in satisfying the Tribunal on a balance of probabilities that the funds were advanced as a loan and not a gift, and that, at the time of the advance, the respondent made a promise to repay, intended to be bound by that promise and that the terms of the loan were certain.
64. [64]
    I note that:

    1. (a)
       there is no loan agreement between the parties;
    2. (b)
       no security was provided, for example, by way of mortgage in relation to the loan;
    3. (c)
       there is nothing else in writing (emails, letters, text messages, letters etc) that evidence an agreement or acknowledgement by the respondent that the $25,000 paid was by way of a loan, which is curious and inconsistent with Mr Wallader’s pleaded evidence that his experience in banking led him to insist that the respondent and her husband agree to “joint and several” liability for the debt – such experience would suggest that he would document a loan if one was intended;
    4. (d)
       no repayments have ever been made;
    5. (e)
       on the applicants’ evidence, no repayment date or repayment terms were even discussed other than “pay what you can, when you can”; and
    6. (f)
       at all times the respondent emphatically denied the existence of the loan or any liability to repay, a point not only acknowledged but pleaded by the applicants.
65. [65]
    All these factors weigh against a finding that the funds advanced were by way of a loan, rather than a gift, because the transaction and interactions described lack formality and any evidence of an intention to be bound.
66. [66]
    Further, on the applicants’ evidence the only discussions held between the parties as about the “loan” were as follows:

    1. (a)
       at the time of the advance the applicants said the respondent accepted “joint and several liability” to repay the debt, agreed to interest at 3.5% and knew the applicants were borrowing to fund the advance – but the respondent denies all of this, and says the money was a gift;
    2. (b)
       between 2004 and 2018, the applicants say they made periodic inquiries of the respondent as to how she was going financially and gave reminders of the obligation to eventually repay - but the respondent denies this;
    3. (c)
       in 2018 the applicants wrote to Mr Waterson, but not to the respondent, referring to the loan and purporting to increase the rate of interest from 3.5% to 7% - to which the Mr Waterson either did not reply or to which he replied denying the existence of the loan and any repayment obligations; and
    4. (d)
       in 2021, in text messages exchanged on 16 and 17 September 2021 in which:

       1. a debt of $70,000 is first alleged by Mr Wallader – this is inconsistent with his evidence in these proceedings and with his previous demand of Mr Waterson; and
       2. the respondent’s replies display genuine confusion as to why any loan was being asserted by the applicants, saying, at first “we’re [sic] is this coming from” and, then, when Mr Wallader said he would calculate principal and interest, believing he was referring to her insurance proceeds and saying “there is know principal interest just interest on my money” and “this money is in account to make interest for me. There no principal interest it is not a loan”; and
    5. (e)
       in a letter dated 17 September 2021, in which the applicants curiously:

       1. use language seeming to inform the respondent of the existence of the loan rather than remind her of an existing agreement: “the loan funds Mum and I paid to you on was in two amounts: $25,000 on the 15^th March 2004 from our ANZ account”; and
       2. speak of applying interest at the Reserve Bank base rate, with no mention of the 3.5% they say the respondent agreed to in 2004.
67. [67]
    Whilst the Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record,^[14] nonetheless it must decide applications on the evidence before it.  The evidence before me in these proceedings is simply not sufficient to satisfy me, on balance, that, at the time of the advance, the funds were paid as a loan, and not a gift, and that, the respondent made any promise to repay them, binding or otherwise.
68. [68]
    Therefore, I find that the advance made was a gift.  Accordingly, it is not repayable and the application for a minor civil dispute – minor debt (including for interest and costs) is dismissed on that basis.

If a loan, is the applicants’ claim time barred?

69. [69]
    Although it is unnecessary to decide this point, I will address it for the sake of completeness.
70. [70]
    If it is established that the arrangement is a loan, and not a gift, then without a finite repayment date or a formal loan agreement, the loan is considered a “loan payable on demand”.
71. [71]
    When a loan is payable on demand, the lender has an immediate right to sue for recovery of the debt, and the lender will only have six years to pursue the borrower for the debt,^[15] commencing on the date of the advance.^[16]
72. [72]
    The limitation period will “re-start” upon acknowledgement or confirmation by the borrower of the debt, provided that the confirmation “supersedes the old debt entirely” and goes beyond a mere promise to pay an existing debt.^[17]
73. [73]
    Section 35(3) of the Limitation of Actions Act 1974 (Qld) provides that:

35(3) Where a right of action has accrued to recover a debt or other liquidated pecuniary claim…and the person liable or accountable therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.

74. [74]
    The acknowledgement of debt referred to in section 35(3) of the Limitation of Actions Act 1974 (Qld) must be in writing and signed by the person making the acknowledgment.^[18]
75. [75]
    An “account stated” is different again, as explained by Isaacs J,^[19] as being when: 

…several items of claim are brought into account on either side, and, being set against one another, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side. It is then the same as if each item was paid and a discharge given for each, and in consideration of that discharge the balance was agreed to be due.

…the constructive payment is referred to only as the reason for the constructive discharge; and then it is in consideration of the discharge that the new balance is agreed to be paid. That balance supported by new valuable consideration is a new obligation, entirely superseding the old.

76. [76]
    As there is no evidence whatsoever that the respondent or her husband ever acknowledged their receipt of the money as a loan, that they later acknowledged their indebtedness or even a willingness to repay the money, and as there have been no payments whatsoever to reduce the liability, there can be no findings made of an acknowledgement of debt or an account stated that would extend or restart the limitation period.
77. [77]
    The respondent has, throughout the dispute (including the earlier involvement of her solicitors) insisted that, even if the payment was not a gift, that the action against her is time-barred.
78. [78]
    Mr Wallader said he understood the law regarding the six-year time limit but said “we have nothing” and that he just wants his money back. He submitted that there should be “leniency” in the law for arrangements between parents and their children and that they should be treated differently to third party or arm’s length arrangements. He said for loans between parents and children there should be flexibility so that good faith arrangements can be accommodated.
79. [79]
    Unfortunately, there is no leniency to extend time, other than, as mentioned, in circumstances of acknowledgment of debt or an account stated.  Those circumstances do not apply here.
80. [80]
    As the limitation period commenced on the date of the advance on 15 March 2004, the time for the applicants to bring a claim against the respondent or her husband ended on or by 15 March 2010 and the application for a minor civil dispute – minor debt is therefore out of time and must be dismissed on that basis.

Can the Tribunal make an order in these proceedings about the $25,000 held by the applicants?

81. [81]
    The Tribunal’s power to make declarations in a proceeding is exercisable by legally qualified members,^[20] not adjudicators.  Even if I had found in the applicants’ favour with respect to the loan, I have no power in these proceedings to make the orders sought declaring ownership of the funds withheld to lie with the applicants.

Orders

82. [82]
    For the reasons given, the application for a minor civil dispute – minor debt filed 27 October 2021 is dismissed in its entirety.