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Mazzoni v Luc[2016] QCATA 192

CITATION:

Mazzoni v Luc [2016] QCATA 192

PARTIES:

Earl Mazzoni

(Applicant/Appellant)

v

Michelle Luc

(Respondent)

APPLICATION NUMBER:

APL083-16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

29 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:

  1. Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where the applicant seeks leave to appeal a tribunal decision ordering him to pay an amount as a minor debt – where the tribunal accepted the evidence of the respondent – where the applicant has not identified any error in the tribunal’s reasoning or fact – finding – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 14, 28

Chambers v Jobling (1986) 7 NSWLR 1

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

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).              The respondent did not file any material responding to the application for leave to appeal by 10 May 2016 as directed.

REASONS FOR DECISION

  1. [1]
    The applicant seeks leave to appeal a decision of the tribunal in its minor civil dispute jurisdiction ordering him to pay the respondent the sum of $5,943.00 plus filing costs of $105.

The context

  1. [2]
    The respondent’s initial claim of $9048.79 was for the unpaid balance of a debt and recovery costs. Interest at the agreed rate of 12.99% or as determined from 13 January 2015 was also sought but not quantified.
  2. [3]
    The respondent’s case is that she borrowed $12,175 (including establishment fees) from Suncorp Bank on 14 November 2013 repayable at $281.96 per month and re-lent the total principal amount to the applicant in various amounts at requested intervals up to December 2014 to help him discharge his own debts and meet other needs.
  3. [4]
    The applicant made regular fortnightly instalment payments to the respondent as verbally agreed until 21 January 2015. He refuses to pay the outstanding balance leaving the respondent with a bank debt she cannot afford to meet from her sole funds.
  4. [5]
    The facts as found by the tribunal are:
  • in November 2013, the respondent advanced the applicant $7,000 so he could pay off his Credit Corp debt;[1]
  • the bank records confirm repayments to the respondent of $4,702;[2]
  • $2,300 in cash loans between 5 March 2014 and 20 July 2014;[3]
  • $1,390 in December 2014;[4] and
  • the total amount loaned was $10,690.
  1. [6]
    The tribunal rejected the applicant’s cross-claim that he had repaid the respondent in full.[5] However, the tribunal reduced the applicant’s indebtedness by $1500 in overpaid ‘rent’, making the total ‘repaid’ sum $6,202. On this basis, the overdue amount is $4,488. Interest was disallowed on the total $12,000 and otherwise found to be ‘virtually impossible’ to work out (exactly) on a compound basis. However, the tribunal awarded $1350 interest on the loan on the basis that:[6]

“Interest on the loan has been about $100 per month. Initially it was more; now it’s less. I’m satisfied that the respondent should bear responsibility for 50 per cent of that, or $50 per month. The number of months is 27. And therefore I allow interest of $50 per month … for the period of December 2013 to February 2016, which totals $1350… as well as to the filing fee which was incurred by the applicant in bringing this claim of $105.”

  1. [7]
    Presumably, the tribunal was not satisfied that interest was payable as of right, whether by agreement or otherwise, and acted under s 14 QCAT Act to award appropriate interest.
  2. [8]
    The total award to the respondent, therefore, was $5,943 ($4,488 + $1,350) plus the filing fee of $105.

The grounds for leave

  1. [9]
    It is relatively clear that the applicant does not properly understand the tribunal threshold for an appeal. It is not easy to discern the ‘errors’ he suggests the tribunal might have made. To that end, his short submission is not felicitously or relevantly expressed. He appears to request certain documents be “released”, as well as a “review” into the respondent’s earnings and spending. But, of course, this is not the role of the appeal tribunal.
  2. [10]
    Section 28 QCAT Act requires the tribunal to act ‘fairly and according to the substantial merits of the case’. Under subsection (3), the tribunal has a positive duty to ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. However, I directed him to file in the tribunal and serve on the respondent “all submissions detailing the alleged error/s of fact and/or law made by the original decision maker and any further submissions…”.
  3. [11]
    It appears the applicant’s essential grievance is that he does not think he should be “… expected to pay for a loan (he) never received nor … (able to) access ...”
  4. [12]
    The appeal tribunal will usually leave first-instance findings of fact undisturbed unless the evidence is not capable of supporting the conclusions made,[7] or if the conclusions are ‘contrary to compelling evidence’.[8] While the applicant may feel he ‘proved’ his case, or that there was ‘no evidence’ supporting the respondent’s claim, this is not the case – the tribunal decision is based on the interpretation of documentary evidence.
  5. [13]
    The tribunal set out its reasoning in preferring the respondent’s evidence in relation to the repayment of rent figure.[9] It called the applicant’s evidence “improbable” because:

“…to accept it I would need to conclude that the applicant improperly set up the transfer to get extra money from him at a time when they were still in a relationship, and well before the relationship broke up. Further, the respondent obviously had access to his bank account statements, and it’s implausible that if the entry as to what the money was being paid for was incorrect he would not have raised it and corrected it earlier. The (respondent’s) version has the ring of truth about it. My conclusion on that points means that in calculating what amount has been paid to the applicant by the respondent in repayment of the loan, the payments for rent are not to be taken into account.”

  1. [14]
    A reading of the transcript clearly indicates the tribunal was across the material filed and made an informed judgment on the basis of the evidence submissions he accepted from both sides. There is no basis on which to overturn the original decision for factual error.
  2. [15]
    Leave to appeal is refused.

Footnotes

[1]Transcript, 1-2:15.

[2]Transcript, 1-2:20.

[3]Transcript, 1-3:40-45.

[4]Transcript, 1-4:15.

[5]Transcript, 1-2:30.

[6]Transcript, 1-5:10-15.

[7]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[8]Chambers v Jobling (1986) 7 NSWLR 1, 10. 

[9]Transcript 1-2: 31-38.

Close

Editorial Notes

  • Published Case Name:

    Mazzoni v Luc

  • Shortened Case Name:

    Mazzoni v Luc

  • MNC:

    [2016] QCATA 192

  • Court:

    QCATA

  • Judge(s):

    Justice Carmody

  • Date:

    29 Nov 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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