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Morley v Smith[2016] QCATA 4

CITATION:

Morley v Smith [2016] QCATA 4

PARTIES:

Susan Elise Morley

(Applicant/Appellant)

v

Angela Maree Smith

(Respondent)

APPLICATION NUMBER:

APL248 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

5 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – where loan agreement signed on behalf of deregistered company – where loan not repaid – where claim by deregistered company – where claim withdrawn – where subsequent claim by individual – where claim dismissed – whether grounds for leave to appeal

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Pickering v McArthur [2005] QCA 294

Clout & Ors v Klein & Ors [2001] QSC 401

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).

REASONS FOR DECISION

  1. [1]
    Angela Smith borrowed $5,000 at a monthly interest rate of 25% and a default interest rate of 35%.  In August 2009 Ms Smith signed an acknowledgement of debt that showed the lender as Morley Estates Pty Ltd.
  2. [2]
    In 2012, Morley Estates Pty Ltd filed a minor debt claim against Ms Smith, claiming in excess of $25,000. The claim was withdrawn when it was revealed to the tribunal that Morley Estates Pty Ltd was a deregistered company. In 2015, Ms Morley filed a minor debt claim in her own name seeking recovery of the same debt. The tribunal dismissed that claim.
  3. [3]
    Ms Morley wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  4. [4]
    Ms Morley submits the tribunal erred in dismissing the claim because the uncontested evidence before it showed that Ms Morley lent Ms Smith the money and Ms Smith had not repaid it. Ms Morley submits that, because Morley Estates Pty Ltd was deregistered prior to the loan, the company could not have loaned the money and, therefore, Ms Morley was the only possible source of the loan.
  1. [5]
    Ms Morley is not correct in her submission that the uncontested evidence before it showed that she lent Ms Smith the money. There was, in fact, no evidence to that effect before the tribunal. Ms Morley had not sworn an affidavit in support of her claim. She did not give evidence at the hearing. She was represented by a collection agent, Mr McGrath, who made submissions on Ms Morley’s behalf but did not call her to give evidence. Mr McGrath acknowledged that he was unable to produce any bank statement showing that the money came from Ms Morley[3]. Mr McGrath told the tribunal that it was taking longer than anticipated to obtain the bank statements. Given the debt was incurred in 2009, and the tribunal alerted Ms Morley to the issue of the correct lender in 2012, the delay in obtaining the bank statements is inexplicable.
  1. [6]
    The tribunal decided that it could not find that Ms Morley was the proper lender. It had no idea who the proper lender might have been.[4] The evidence can support the tribunal’s decision and I can find no compelling reason to come to a different view.
  1. [7]
    I agree that Morley Estates, if deregistered, did not exist and, therefore, could not have been the lender. But I have little sympathy for Ms Morley’s predicament. She prepared the deed of acknowledgement. She must have known about the status of Morley Estates Pty Ltd. She took no care to protect her interests.
  1. [8]
    I note a submission to the tribunal that Ms Morley held herself out to be a reputable money lender[5]. If that is true, then Ms Morley, and/or the vehicle through which she lent money, was subject to the Consumer Credit Code. Whether the loan to Ms Smith was a breach of the Code is an interesting, but irrelevant question.
  1. [9]
    There is another reason for refusing leave to appeal. A party may be estopped from raising a claim which it could have litigated in previous proceedings if it was unreasonable for the claim not to have been litigated[6]. When the tribunal first raised the question of Morley Estates’ status and capacity to loan the money, Ms Morley could have applied to substitute herself as the applicant, saving the parties time and money. She chose not to do so. The tribunal was entitled to find, had it been necessary, that Ms Morley was then estopped from pursuing a claim in her own right.
  2. [10]
    There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.

Footnotes

[1]   QCAT Act, s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294 at [3].

[3]  Transcript page 1-8, line 30 to page 1-9, line 9.

[4]  Transcript page 1-14, lines 7 – 10.

[5]  Transcript page 1-10 line 20.

[6] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602; Clout & Ors v Klein & Ors [2001] QSC 401 at [42].

Close

Editorial Notes

  • Published Case Name:

    Susan Elise Morley v Angela Maree Smith

  • Shortened Case Name:

    Morley v Smith

  • MNC:

    [2016] QCATA 4

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    05 Jan 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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