ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OKELY v SMITH (Civil Dispute) [2022] ACAT 104

XD 860/2021

Catchwords: CIVIL DISPUTE – debt recovery – whether multiple loan

agreements between parties – prior proceedings between parties
– whether the respondent owes the applicant more money –
whether Anshun estoppel and res judicata apply in relation to
prior proceedings – investment in business or loan

Tribunal: Senior Member K Katavic

Date of Orders: 13 December 2022

Date of Reasons for Decision: 13 December 2022
 AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 860/2021

BETWEEN:

JULIE OKELY
Applicant

AND:

MATTHEW SYDNEY SMITH

Respondent

TRIBUNAL: Senior Member K Katavic

DATE: 13 December 2022

ORDER

The Tribunal orders that:

1. The respondent must pay to the applicant the sum of $25,593 comprising:

(a) $25,000 for the debt; and

(b) $593 for the ACAT filing fee.

………………………………..
Senior Member K Katavic
 1

REASONS FOR DECISION

Introduction
1. The parties in this matter used to be friends. Their friendship ended over a money
dispute related to what might have been, but ultimately wasn’t, a life-changing
business deal. It turned out to be life-changing, but not due to a financial windfall
as they had expected.

2. However, as Ms Okely (the applicant) sees it, Mr Smith (the respondent) is at

least $30,000 richer because she claims he owes her that amount of money.
Ms Okely says she loaned the money to Mr Smith so that he could facilitate the
transfer of a distribution licence for “Playboy Energy Drinks” from United States-
based company CirTran Beverage Corp to PlayBev Pacific Pty Ltd, a company
for which he was at the relevant time the sole director and shareholder.

3. Mr Smith claims the amount paid by Ms Okely was paid by her directly into the
bank account of the company in the United States and constituted a capital
investment as she was working with him to get the Playboy Energy Drink
business off the ground in Australia.

4. This is not the first time these parties have been before the tribunal. On
30 September 2020, I made final orders in Ms Okely’s favour in the absence of
Mr Smith in respect of what she maintains in these proceedings was a separate
loan for $30,000. Those orders were made for $25,000 (being the tribunal’s
jurisdictional limit), plus interest and the filing fee. Ms Okely enforced those
orders through the ACT Magistrates Court, and the amount has been paid.
Mr Smith says this was the only loan between himself and Ms Okely. The
significance of this will become apparent later in these reasons.

5. The issue in these current proceedings is whether Mr Smith owes Ms Okely more
money.
 2

The application and evidence before the Tribunal

6. Ms Okely seeks an order for the payment of $25,000 plus interest1 and the ACAT
filing fee. She says the primary amount reflects a loan between herself and
Mr Smith for $30,000. She has limited her claim to the Tribunal’s jurisdictional
limit and abandons the excess.

7. On 30 September 2020, I made orders in separate proceedings2 in Ms Okely’s

favour in the absence of the respondent for $25,000 plus interest of $3,134.92 and
the ACAT filing fee of $572.50, totalling $28,707.42 (the 2020 Matter).

8. Ms Okely claims the 2020 Matter related to a separate oral loan agreement on
15 June 2017 for $30,000 which was paid to Mr Smith in two instalments on that
date, $10,000 transferred directly into his National Australia Bank account3 and
$20,000 given to him in cash.

9. Ms Okely says the current proceedings relate to a separate written loan agreement
dated 6 June 2017 for $30,000 which was given to Mr Smith. Ms Okely accepts
that this loan was facilitated by her transferring the money directly from her
Commonwealth Bank of Australia account directly to a bank account for P2P
Investments in the United States of America.

10. Mr Smith says there was only ever one loan between them for $30,000 which was
dealt with in the 2020 Matter. He denies he owes Ms Okely any more money.

11. The parties lodged a significant amount of material with the Tribunal and both
parties gave oral evidence at the hearing. I have had regard to that material and
the evidence given.

12. The matter was heard on 14 September 2022 and adjourned to 15 November 2022
for final submissions. Ms Okely was granted leave to issue a subpoena to the
National Australia Bank for Mr Smith’s records as she believed it would prove
$20,000 had been deposited into his account on 15 June 2017.

1
Pursuant to the Court Procedure Rules 2006
2
ACAT File No XD 652/2020
3
Exhibit R3, Smith’s bank statement for the period between 23 May 2017 and 22 June 2017
received by the tribunal on 14 September 2022
 3

13. At the hearing on 14 September 2022, neither party had a copy of the written
agreement dated 6 June 2017. Much of the hearing was dedicated to the parties
recalling the events of 6 and 15 June 2017. Both had different versions of events
and both parties were doing their best to recall what happened. By the time the
matter resumed on 15 November 2022, Ms Okely had located the missing written
loan agreement dated 6 June 2017. Mr Smith accepted this was the loan
agreement, but the only loan agreement between them. There is no written
agreement for whatever it was that happened on 15 June 2017.

14. At the hearing, both parties spent a great deal of time describing the circumstances
surrounding what was ultimately a failed business venture involving the
distribution of Playboy Energy Drinks in Australia. Many accusations were
levelled at each other, and other third parties that were not present. The Tribunal
was told about the existence of 700 pallets of the Playboy Energy Drinks,
apparently under the control of PlayBev Pacific Pty Ltd, a company solely
operated by Mr Smith which had sat in a warehouse awaiting the transfer of a
distribution licence to that company. PlayBev Pacific Pty Ltd was apparently
dispossessed of those pallets though some allegedly fraudulent means and
inevitably the stock went past its expiry date without distribution. At some point,
Ms Okely established a business called “Vodka Secrets” in an effort to team up
the Playboy Energy Drink with a vodka distillery. This did not eventuate. There
was material indicating the parties were pursuing distribution avenues for the
mixed beverage together having attended some meetings together.

15. I do not need to resolve factually what happened regarding the Vodka Secrets and
Playboy Energy Drink venture and its demise. To the extent it is relevant,
Mr Smith claims Ms Okely had an interest in the business because of her
involvement in various activities and any amount she paid was an investment by
her. I do not need to deal with the intricacies of what may or may not have
occurred regarding those drinks beyond that question. Mr Smith’s assertion is
dealt with later in these reasons.

16. At the end of the day, both parties appear to have suffered as a consequence of
the failed Playboy Energy Drink venture.
 4

17. At the centre of this dispute is the issue of whether there was a single loan or more
than one loan and whether either or both have been discharged. I have been left
to decide between differing versions of events and different characterisations of
what occurred.

The transactions
18. By the time the matter came before the Tribunal on 15 November 2022,
Ms Okely’s version of events had changed slightly. This was because she had
located the written agreement for 6 June 2017 and satisfied herself that she had
directly transferred money from her account to an account in the United States.

19. Ms Okely says that on 6 June 2017, Mr Smith told her he needed money in
relation to the Playboy Energy Drink Business. He was trying to obtain a
distribution licence from the United States. Ms Okely agreed to loan Mr Smith
$30,000. They committed this agreement to writing. It is a simple agreement.

20. It states “…personal loans total amount AU$30,000.00 (Thirty Thousand Dollars
Only).” Its terms are:

1. The Client/borrower Matthew Smith acknowledges that by signing this

agreement that the loan purpose is to purchase Playboy Energy Drinks
Product for the sale in Australia. This personal loan is to be repaid from
the sale proceeds of the drinks.
2. There is no interest charged on this loan. The money will be refunded
from the sale of Matthew Smith’s 2 properties in Franklin and Bonner.

21. Ms Okely says it was orally agreed the money would be repaid by 1 May 2018.

22. On 6 June 2017, Ms Okely says she attended the Commonwealth Bank of
Australia with Mr Smith and transferred the money to an account in the
United States. The bank records show the beneficiary of that account is P2P
Investments. The transaction record says “Matthew Smith PlayBev Pacific” in
the remittance advice. Ms Okely initially denied this occurred in this way but
conceded on 15 November 2022 it did. Ms Okely initially thought this money had
been transferred to Mr Smith directly and he transferred it from his account to the
United States. She accepts the documents from the Commonwealth Bank of
Australia show she made the transfer to the United States. She also said the two
 5

properties referred to in the loan agreement had been sold, yet the loan had not
been repaid from the proceeds of the sales as per the terms of the agreement.

23. On 15 June 2017, Ms Okely says Mr Smith again asked her for money has he was
under financial stress. She says she agreed to lend him $30,000. The agreement
was oral. She transferred $10,000 directly to his bank account on 15 June 2017
and said that they went to the Commonwealth Bank of Australia Gungahlin
Branch together where she withdrew $20,000 cash and gave it to Mr Smith. She
recalls Mr Smith then walking across the street with the cash and entering his
bank. She is not certain as to what happened next, but recalls being worried about
Mr Smith walking around with so much money in cash. She accepts that a
$20,000 cash deposit does not appear in Mr Smith’s National Australia Bank
account.

24. Ms Okely’s bank statements show a cash withdrawal of $20,000 from the
Gungahlin Branch on 15 June 2017 and electronic transfer of $10,000 also on
15 June 2017 with the description “Julie Loan”.

25. Ms Okely says the repayment of the loan from 15 June 2017 was the subject of
the 2020 Matter.

26. Mr Smith says there was only one loan agreement and that was the loan on
6 June 2017. He says the 2020 Matter repaid that loan. He said there was no loan
on 15 June 2017. He could not explain the transfer of $10,000 from Ms Okely
into his bank account and denied he received $20,000 in cash from her which he
walked into a bank with. The remittance advice for the $10,000 transaction on
15 June 2017 states “Julie Loan Julie Okely”.

27. Mr Smith accepts that Ms Okely lent him money, but that this happened on
6 June 2017 pursuant to the written agreement. He said the transfer she made to
the United States was that loan. He also said the amount she transferred to the
United States on 6 June 2017 was for her own interest in the business by way of
capital investment. Mr Smith accepted the two propositions cannot sit together.
Either it is a loan he was required to repay, or it was a capital investment in the
business reflecting an interest Ms Okely had in it. He relied on the orders made
 6

in the 2020 Matter as finalising all issues between them in relation to the loan
citing principles of res judicata and Anshun estoppel.

28. This aspect of Mr Smith’s case depends on what was the subject of the decision
before the tribunal on 30 September 2020 and whether the case Ms Okely is
putting in these proceedings is in fact different.

What was decided in the 2020 Matter?

29. Before me on 30 September 2020, I questioned Ms Okely as to the scope and
nature of her claim and whether the loan amount was actually $60,000. The
following exchanged occurred:4

SENIOR MEMBER: I'm looking at the statutory declaration that you’ve

filed that’s from Annette Luck, who you say is your finance officer and
bookkeeper. That document suggests that the loan amount was $60,000.

MS OKELY: In total it is. But it was in three separate transactions.

SENIOR MEMBER: So there is, in your statement though, your statutory

declaration, you say that it’s you transferred - - -

MS OKELY: Ten and 20, which is the last two. It’s on 15th, so it’s the 10
and 20.

SENIOR MEMBER: Okay. So, what happened to the additional 30 that’s

referred to by Ms Luck on 6 June?

MS OKELY: Well, that’s a separate matter.

SENIOR MEMBER: Okay. So, that’s not part of the claim?

MS OKELY: No. I can only claim 25,000. I went to a lawyer and I spoke to
her and I paid $400 at Skelton Legal, they asked if I want to recoup the
funds and she said to me, ‘Go through the Magistrates Court and it will
cost me 45,000 to recoup 60.’ I'm a single parent. I don't have $45,000 to
win $15,000. You know, it’s just ridiculous.

SENIOR MEMBER: You say you transferred the $10,000 into his bank
account. Amongst the material that you’ve given to the tribunal is there a
copy of that transaction; that transfer?

MS OKELY: Yes. There is.

4
Transcript of proceedings 30 September 2020, pages 5 - 7
 7

SENIOR MEMBER: The following – okay – so 15 June – I can see it here.

15 June, transfer of $10,000, identified as ‘Julie – loan’ to Matthew Smith
and then there is another transaction on the – what’s the previous page
which seems to be - - -

MS OKELY: Yes. On the - - -

SENIOR MEMBER: - - - on 15 June.

MS OKELY: Yes.

SENIOR MEMBER: Ten thousand dollars.

MS OKELY: Twenty thousand.

SENIOR MEMBER: Sorry. Twenty thousand. Yes. Sorry.

30. I am satisfied that while reference is made to 6 June 2017, Ms Okely made it clear
she was only pursuing repayment of debts owed from 15 June 2017 in those
proceedings. This is further clarified in the following exchange:5

MS OKELY: Well, basically what happened was, Matthew and I had been
friends for – really close friends for 18 years and he has helped me build
three houses. So when he had purchased this tree business ... (inaudible)
..., I helped him ... (inaudible) ... . The debt equity or refinance, but for some
reason he needed the cash very quickly, and I had sold two of my houses
and I had a little bit of money in the bank to accommodate my BAS and my
accountancy fees and anything else that I had for the following May.

So I said with him, 'I'm happy to basically agree to releasing the money in'
– it was on 6 June, but we signed this document which I don't have a copy
of. He did it in his office at Mitchell when they were leasing the premises in
Mitchell, and he did it on his computer and we both signed it that he would
return the funds as soon as the – he sold his houses, which I provided a list
of the houses he had, and also when his ... (inaudible) ... sold - - -

SENIOR MEMBER: So just going back one step.

MS OKELY: Yes.

SENIOR MEMBER: When in June do you say?

MS OKELY: It was on 6 June we signed a - - -

5
Transcript of proceedings 30 September 2020, pages 3 and 4
 8

SENIOR MEMBER: Which year?

MS OKELY: 2017.

SENIOR MEMBER: Okay, and for $25,000. Is that right?

MS OKELY: It was. It was actually for three separate payments, but I

mainly, at this stage, looking for settlement from two of the payments which
are on 15 June, the $10,000 which I transferred to him by bank transfer,
and the other I gave him $20,000, which I know that the Small Claims Court
only goes to 25,000, so I've had – I understand that.

SENIOR MEMBER: And when was the second one transferred?

MS OKELY: On 15 June.

SENIOR MEMBER: So both of them were transferred on 15 June?

MS OKELY: Well, the 10,000 was transferred on 15 June and then he asked
for a further $20,000 which I took out and he walked across to the National
Australia Bank in Gungahlin, and we went from the NAB to – from the
Commonwealth to the NAB where he walked across and he deposited into
his account, and it was to track there as international transfer of some
money that he needed straight away to help secure the copyright of the
place ...(inaudible)...

SENIOR MEMBER: Okay.

MS OKELY: To be honest, I didn't have a problem with it. I trusted him. I

thought I'd ticked all the boxes and I'd, well, had a talk to him about that I
needed it by May. I was happy for him to utilise it, but gave him time to get
money out of his equity. It gave him time to sort out his own financial
records so that way he could have the money in May 2018, so I could then
submit to my accountant. Anyway, then May came.

31. Ms Okely does make reference to funds being transferred internationally, but
regardless of whether or not that occurred in respect of the transaction on
15 June 2017 the issue is whether or not there was a loan on 15 June 2017 which
was the subject of the 2020 Matter separate to a loan on 6 June 2017 which was
not.

32. Mr Smith relied upon the principles of res judicata and Anshun estoppel as
impediments to Ms Okely recovering anything further on grounds the loan
between them was resolved by the 2020 Matter. It is important to set out these
 9

general principles. In Cervo v Kingsley’s Pty Ltd6 the court summarised as

follows:

Res judicata
39. Res judicata is concerned with causes of action and judgments (or the
equivalent of judgments). Where an action has been brought and
judgment has been entered in that action, no other proceedings can
thereafter be maintained on the same cause of action: Jackson v
Goldsmith (1950) 81 CLR 446 at 466; Port of Melbourne Authority v
Anshun Pty Ltd (1981) 147 CLR 589 (Anshun) at 597-598 and the
cases there-cited. Res judicata operates as a mandatory bar to further
proceedings, on the basis of the non-existence of the cause of action
after judgment upon it. The very right or cause of action claimed or
put in suit has in the former proceedings passed into judgment, so
that it is merged and has no longer an independent existence: Blair
& Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464 (Blair) at
531532 per Dixon J.
40. Further, where an issue of ultimate fact or of law is raised between
parties to a proceeding and is necessarily decided, the parties and
their privies are bound by that decision and are precluded in a later
proceeding from taking up a position on the issue which is
inconsistent with the decision: Anshun at 597-598 and the cases
there-cited, which include Blair at 531.
Anshun estoppel
41. By contrast, Anshun estoppel is concerned with causes of action or
issues that should have been raised in previous proceedings, but were
not: Anshun at 598 per Gibbs CJ, Mason and Aickin JJ.
42. The test for whether the issue ought to have been litigated as part of
the earlier proceedings is based on the reasonableness or otherwise
of the conduct of a litigant in the earlier proceedings: see Meriton
Apartments Pty Ltd v Industrial Court of New South Wales [2009]
NSWCA 434; 263 ALR 556 at [60]. The mere fact that the issue could
have been raised does not mean it should have been raised (for the
principle to operate). Rather, it has to be so relevant as to make it
unreasonable not to raise it: Champerslife Pty Ltd v Manojlovski &
Anor [2010] NSWCA 33; 75 NSWLR 245 per Allsop P (as his Honour
then was) at [4].
43. Contrary to the concession made by Senior Counsel for the guarantor
in the court below, recorded by the magistrate at [50] of the Reasons,
a further distinguishing feature between res judicata and Anshun
estoppel is that Anshun estoppel may even arise where the parties to
the second proceeding are not the same as the first: Habib v Radio
2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib v Radio 2UE) at
[83] per McColl JA (with whom Giles and Campbell JJA agreed);

6
[2018] ACTSC 179 at [39]-[44]
 10

Equuscorp Pty Ltd & Anor v Acehand Pty Ltd & Ors [2010] VSC 89
at [27].
44. In Habib v Radio 2UE, McColl JA went on to state at [84] and [85]
(with emphasis added):
A strict approach is necessary in an Anshun estoppel case to
the inquiry whether there exists the requisite identity between
the proceedings; the mere fact that the proceedings are closely
related is insufficient; a technical approach is not helpful, the
doctrine being concerned with substance and not form: see
Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44])
per Stein JA (Priestley and Beazley JJA agreeing) and the
authorities to which his Honour refers. In determining whether
an Anshun estoppel has been established, the court inquires
into realities and not mere technicalities: R v Humphrys [1977]
AC 1 (at 41) per Lord Hailsham; cited with approval by
Handley JA (Young CJ in Eq agreeing) in Cleary v Jeans
[2006] NSWCA 9; (2006) 65 NSWLR 355 (at [19]). The Court
can look at “any material that shows what issues were raised
and decided”: Rogers v R (at 263) per Brennan J.
In considering whether an Anshun estoppel has been
established, it is necessary to bear in mind that “shut[ting] out
a claim ... a party wishes to pursue, without determination of
its intrinsic merit, on the ground that it ought to have been
raised in earlier litigation...is a serious step, [and] a power not
to be exercised except ‘after a scrupulous examination of all the
circumstances’ ”: Ling v Commonwealth (1996) 68 FCR 180
(at 182) per Wilcox J, approved in Bazos (at [45]) per Stein JA
(Priestley and Beazley JJA agreeing); see also Brisbane City
Council v Attorney-General (Qld) [1979] AC 411 (at 425) per
Lord Wilberforce. [emphasis in original]

33. I accept Ms Okely may have been confused as to which of the transactions the
written agreement applied to. When expressly asked which of the transactions she
was seeking orders for, she clearly identified the two amounts she said she
transferred to Mr Smith on 15 June 2017 not 6 June 2017 being the subject of the
proceedings. When asked if what happened on 6 June 2017 was part of her claim
she said no. Contrary to Mr Smith’s submission, Ms Okely was not claiming
$60,000 in the 2020 Matter and abandoning the excess beyond the tribunal’s
jurisdictional limit. She was claiming $30,000 for one loan and abandoning the
excess of $5,000 beyond the jurisdictional limit. Mr Smith’s characterisation of
what occurred is misconceived.

34. I am satisfied the 2020 Matter related to a separate loan to Mr Smith on

15 June 2017 and that the orders made did not relate to a separate loan on
 11

6 June 2017. The principle of res judicata does not apply. Further, because they
were two separate transactions Ms Okely was entitled to make two separate
claims for recovery in respect of the two separate loans. The 6 June 2017
transaction was not something she ought to have raised and claimed in one single
proceeding as it gave rise to a separate cause of action. They may be closely
related but that is insufficient. Because it comprised a separate loan there was no
obligation on Ms Okely to litigate it as part of the 2020 Matter. She elected to
pursue them separately. The principle of Anshun estoppel does not apply.

Does Mr Smith owe Ms Okely further money?

35. I am satisfied on the evidence before me that in total Mr Smith was the beneficiary
of $60,000 from Ms Okely. I am satisfied that this comprised two separate loan
agreements across three transactions one was written, and one was oral. The loan
on 15 June 2017 was decided in the 2020 Matter the loan on 6 June 2017 was not
and remains unpaid.

36. Ms Okely bears the burden of proving her case on the balance of probabilities and
I am satisfied on the evidence before me she has discharged that burden.

37. If I have understood Mr Smith’s submission correctly, he says there was a loan
on 6 June 2017 which was the subject of orders made in the 2020 Matter, which
he has paid, and was for the money transferred on 6 June 2017 to the United
States. He says this transaction was also a capital investment in the business by
Ms Okely because he says they were partners. I cannot accept that proposition.
It cannot be both a loan and a capital investment. He did not adequately explain
what the transactions on 15 June 2017 were and suggested he did not receive
$20,000 in cash. I do not find Mr Smith’s evidence or submissions in relation to
what happened between Ms Okely and himself on 6 June 2017 and 15 June 2017
persuasive. Mr Smith’s evidence on what happened when it happened why was
not clear and at times inconsistent.

38. The first loan occurred on 6 June 2017 pursuant to a written agreement. Mr Smith
was the beneficiary of $30,000 transferred directly to the United States by Ms
Okely. I do not accept she was investing in the business. Mr Smith’s suggestion
that this was both her investment and the only money she lent him does not stack
 12

up. It is simply inconsistent. It does not matter that Mr Smith did not actually
receive the funds directly, the terms of the loan agreement made it clear what the
funds were being applied to and for convenience the loan amount was paid
directly by Ms Okely to the United States on Mr Smith’s behalf.

39. I am satisfied this amount has not been repaid.

40. The second loan occurred on 15 June 2017 in two transactions. This was decided
in the 2020 Matter. For completeness and only to distinguish it from the current
proceedings, Ms Okely transferred $10,000 electronically to Mr Smith and
withdrew $20,000 cash and gave it to him. This comprised a total loan amount of
$30,000 which was the subject of orders made in the 2020 Matter and has been
repaid in accordance with those orders. According to the transcript of that hearing,
it was plain Ms Okely was seeking to recover the amounts from those two
transactions. This is why I cannot accept Mr Smith’s denial of that loan. He did
not seek to have those orders set aside and has paid the amount owing. They were
also the subject of an enforcement hearing in the Magistrates Court which detailed
the two transactions.

Conclusion and Orders

41. The loan amount from the agreement dated 6 June 2017 remains unpaid. I am
satisfied Mr Smith owes Ms Okely $30,000 under the terms of this loan.
However, the terms of the loan make it clear it is an interest-free loan. Ms Okely
has abandoned the excess above the Tribunal’s jurisdictional limit.
 13

42. I make the following order:

(a) The respondent must pay to the applicant the sum of $25,593 comprising:

(i) $25,000 for the debt; and

(ii) $593 for the ACAT filing fee.

………………………………..
Senior Member K Katavic

Date(s) of hearing: 14 September 2022 and 15 November 2022

Applicant: In person
Respondent: In person