Agaw Services Pty Ltd v MacCrory - [2021] QCAT 341

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

AGAW Services Pty Ltd v MacCrory & Anor [2021] QCAT 341

PARTIES: AGAW SERVICES PTY LTD T/A COLBROW MEDICS

(applicant)

v

SEAN MACCRORY

(first respondent)

and

SPORT AND EVENT MEDICS PTY LTD

APPLICATION NO:

MCDO1195-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

28 September 2021

HEARING DATE:

16 September 2021

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – claim for debt or liquidated demand of money – whether a restraint clause in a contract was enforceable

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(1), s 11, s 13(1), s 93, Schedule 3

Amoco Australia Pty Lt v Rocco Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd [2017] VSCA 161
Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28

Yang & Anor v Wellcamp Properties Pty Ltd [2018] QCATA 161

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

The applicant supplies medics to clients in a delivery method not dissimilar to a “temp” agency.
The first respondent, as an independent contractor, was engaged by the applicant from 2014 to 2019 to provide medic services to the applicant’s clients under the terms of an independent contractor agreement dated 29 May 2014 (“the contract”).
Among other things, the independent contract agreement provided as follows:
(a)the “Contractor” is Sean MacCrory (the first respondent);
(b)in clause 9 (my emphasis added) that:
The Contractor will not at any stage during the course of their services approach a client directly to offer them there [sic] services or where a client approaches the Contractor directly, they will refer the client to Colbrow Medics. This applies for a period of 24 months since the contractor’s last assignment to that client. Where this clause is breached, the Contractor agrees to pay Colbrow Medics the sum of $4,000.00 per breach and will be liable for any court costs;
(c)in clause 15 that the Contractor indemnifies the applicant against claims, losses etc arising from the Contractor’s breach of the contract; and
(d)in clause 16 that the Contract could be terminated by the applicant on seven days’ notice in writing.
The first respondent completed his last shift with a named client of the applicant (a school) on 29 August 2019. On 13 November 2019 the applicant tendered for the named client’s work for the following year but was informed the following day that it was not successful.
On or by 27 February 2020 the first respondent ceased providing services to the applicant under the contract.
The first respondent is the sole director and secretary of the second respondent, a company formed on 14 February 2020. That company, once formed, appears to have engaged directly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 341
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether an applicant, a business supplying medics to clients, could recover a $4,000 payment from two respondents, an individual and a company formed by that individual. The applicant claimed that the individual breached a term of an independent contractor agreement by directly engaging with a client of the applicant, and that the company engaged in similar conduct, and that these breaches entitled the applicant to recover the $4,000 from the individual and the company. The individual respondent argued that he did not breach the contract, and that the $4,000 was excessive and the contract was unenforceable as a restraint of trade. The company argued that it was not a party to the contract and could not be liable to the applicant. The tribunal had to determine whether it had jurisdiction over the matter and, if so, whether the contract was enforceable and whether it was breached by either respondent. QCAT found that it did have jurisdiction over the matter as the applicant was claiming to recover a liquidated demand of money under a contract. The tribunal found that the contract was not a restraint of trade and therefore was enforceable. However, the tribunal found that there was insufficient evidence that either respondent breached the contract, and therefore dismissed the application.

Orders