Gervasi v Williams[2022] QCATA 90

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction 

1. [1]
   On three occasions in June and July 2020^[1] the applicant Guiseppe Gervasi (`Gervasi’) advanced $5,000 to the respondent Margaret Williams (`Williams’) – $15,000 in all. Gervasi characterises those advances as a loan.
2. [2]
   Williams disagrees:

It was not a loan.  He gave me the money, and he was going to stay at my house, and the money was going to pay for the rent or whatever, and he was – I was going to work away, and he was going to stay there rent free.^[2] 

3. [3]
   Presumably this reference is to the disputed balance of $3,380^[3] because it is common ground that Williams refunded at least $11,000 to Gervasi,^[4]
4. [4]
   The parties’ financial arrangements are egregiously vague and ill-defined. Nothing was committed to writing.^[5] Gervasi’s version – or one of his versions was that `loan’ was `just a kind gesture’.^[6] It was just to help her out’.^[7] By then, the parties had been on friendly terms for about 18 months^[8]. According to Williams Gervasi tried unsuccessfully to establish a sexual relationship.^[9]

Rent free

5. [5]
   Williams is a self-employed registered nurse, who, from time to time, works away from Brisbane. At an uncertain time, seemingly towards the end of 2020, she was in far north Queensland for about 5 weeks.^[10] Meanwhile Gervasi kept on eye on her house and her pets, but he did not continually live there, but he was `just sleeping there’.<sup>[11]</sup> Gervasi admitted that he stayed at Williams’ place `rent free’.^[12] Williams described the $15,000 advance as `in lieu of rent.’^[13]
6. [6]
   The amity did not last. On Williams’ return Gervasi began to press for immediate repayment of the balance of $3,380 – a unilateral attempt to add a term^[14] to the original arrangement, which was relaxed and open-ended regarding time for repayment.

Litigation begins

7. [7]
   On 28 January 2021 Gervasi resorted to the tribunal, claiming $3,380 in debt:

I have lent the money in good faith and was assured that it would be paid back in a reasonable time. Only 2 payments have been made to the value of ... $14,300 total. The respondent has made outlandish claims against me hoping that she doesn’t have to pay me the money owing.^[15]

8. [8]
   Williams’ view was quite different:

It was not a loan.  He gave me the money, and he was going to stay at my house, and the money was going to pay for the rent or whatever, and he was – I was going to work away, and he was going to stay there rent free.  That was the original agreement. ... I didn’t have to pay the money back because it was supposed to be for rent.  But because of the way he was, I thought I just want this person out of my life, so I just started paying it back, no questions asked.^[16]  

Response and counter-claim

9. [9]
   On 11 February 2021 Williams filed a response seeking dismissal of Gervasi’s claim and counter-claimed `return of my white goods or compensation’.
10. [10]
    With respect to the counter-claim Williams alleged:

I went away to Mornington Island for 5 weeks for work.^[17] When I returned all my white goods had been removed from my property, all in good working order. 1 large fridge, 1 washing machine, 1 small bar fridge, 1 small freezer and a dryer. Mr Gervasi advised me that he put them on the footpath and people took them.^[18]

11. [11]
    The Response itself does not specify the value of the white goods, but in the annexure Williams states^[19]: `I feel that $3,300 is a fair price for the goods removed from my place’.

Hearing and decision

12. [12]
    The tribunal heard and decided the dispute on 6 April 2021.
13. [13]
    The adjudicator had considerable difficulty in ascertaining the terms of the `vague’^[20] contract, if indeed the subject arrangements could be so described. Exasperated, he observed:

[I]n the absence of any written agreement, it’s very hard for me to make any – to draw conclusions about this ...^[21]

[W]hile there’s a great deal of paper on the file, there’s very little that gives illumination to the facts of this case.^[22]

[I]t reinforces the need for some sort of written agreement, even if it’s only brief letter or exchange of an email or something, setting out the terms on which money is exchanged between people and the purpose for which it’s given, because I’m now faced with Mr Gervasi saying that he loaned you this money out of the goodness of his heart after knowing you for a year to help you out and without any terms as to when it would be paid back.  On the other hand ... you’re saying that he paid that on the basis of rent up to a year ... So in one case he’s not entitled to the money back, that is, if it was paid for rent.  If it was a loan to you, then he is entitled to the money back, and I have to make a decision on the balance of probabilities ...^[23]

14. [14]
    It is at least arguable that the action might have been dismissed as legally unenforceable for uncertainty^[24], or absence of a mutual intention to create an enforceable legal relationship^[25]. It is not a formal agreement between commercial parties that courts usually strive to preserve.^[26] On the contrary, it is difficult to imagine a more elusive, wholly unwritten arrangement. However, those are not questions that need be canvassed here.
15. [15]
    In the event the adjudicator decided that:

 I’m inclined to accept Ms Williams’ version of events, on the basis that she is a responsible professional person, and her conduct and manner throughout the process has been reasonable.  Mr Gervasi has, at the same time, put his case as best he can, but I think he has failed at the threshold test of satisfying me on the balance of probabilities that the money that was paid by him to Ms Williams was paid as a loan.^[27]

16. [16]
    Accordingly Gervasi’s action was dismissed.
17. [17]
    Williams’ counter-claim was rejected as insubstantial, particularly for the lack of any acceptable evidence of the value of the property in question. No other conclusion is arguable.^[28] Williams does not seek leave to appeal.

Gervasi seeks leave^[29] to appeal

18. [18]
    The decision turns on the adjudicator’s assessment of facts and credit. There is evidence upon which his decision could be made. There is nothing unreasonable about it, let alone anything that could be described as `glaringly improbable’ or contrary to compelling inferences.<sup>[30]</sup> Questions of fact and credit are the prerogative of a trial judge; that is his function<sup>[31]</sup>. An application for leave to appeal is not an opportunity to re-try the case presented at trial, or to `second guess’ the primary decision-maker. Rather, it is limited to a search for errors of law, if any, that may have resulted in injustice.^[32] It is not nearly enough for an applicant for leave to entertain a subjective feeling of dissatisfaction. It is not an error of law to prefer one party’s version to the other, or to give less weight to evidence than a party thinks it should receive.

Resolution

19. [19]
    No reasonably arguable appellable error has been shown, and I discern none. Therefore the application for leave to appeal must be dismissed.

ORDER

The application for leave to appeal is dismissed.