BURGMANN RESIDENTS’ ASSOCIATION INC & CAFTOR PTY LTD T/AS MOOSEHEADS PUB (Civil Dispute)
[2013] ACAT 39
•6 June 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BURGMANN RESIDENTS’ ASSOCIATION INC & CAFTOR PTY LTD T/AS MOOSEHEADS PUB (Civil Dispute) [2013] ACAT 39
XD 12/1398
Catchwords: CIVIL DISPUTE – contract – sponsorship agreement – whether there is enforceable agreement – business efficacy of contract – implied term regarding intention to pay - whether payment was made – whether person who received payment had authority to receive it
List of Cases: BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1978) 52 ALJR 20
Tribunal:Ms J. Lennard – Senior Member
Date of Order/s: 30 May 2013
Date of Reasons for Decision: 6 June 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) XD 12/1398
BETWEEN: BURGMANN RESIDENTS’ ASSOCIATION INC
Applicant
AND: CAFTOR PTY LTD T/AS MOOSEHEADS PUB
Respondent
TRIBUNAL:Ms J. Lennard - Senior Member
DATE:30 May 2013
ORDERS
The Tribunal orders that:
The respondent, Caftor Pty Ltd trading as Mooseheads Pub, shall pay the amount of $8,939.00 to the Applicant, Burgmann Residents’ Association Inc on or before 7 June 2013.
………………………………..
Ms J. Lennard
Senior Member
REASONS FOR DECISION
HEARING AND REPRESENTATION
The applicant Burgmann Residents’ Association Inc [BRA] was represented by Mr Michael Wright, under a Power of Attorney.
The respondent, Caftor Pty Ltd trading as Mooseheads Pub [Mooseheads], was represented by Ms Nicole Miladinovic. Ms Miladinovic is the sole director and secretary of Caftor Pty Ltd.
The matter was heard by ACAT on 4 April 2013. After hearing evidence from both parties, the Tribunal made orders adjourning the matter for a written decision and giving the parties leave to file written submissions on or before 19 April 2013.
Further written submissions were received from the respondent. The applicant made no further submissions.
BACKGROUND
The respondent, Mooseheads, has sponsored the applicant, the BRA, since around 1997, and has dealt with the BRA through the various members of the BRA’s committee from time to time. On or about 8 February 2011, the parties entered into an agreement in relation to sponsorship for the 2011 academic year. The tribunal received the following evidence as to the form and content of that agreement:
(a)A copy of a document titled Memorandum of Understanding expressed to be executed as an agreement and signed by Murray Robertson in his capacity as the 2011 Vice-President of the BRA and by Nicole Miladinovic as a duly authorised delegate of Mooseheads Bar and Nightclub. The agreement is dated 8 February 2011. It provides for sponsorship from Mooseheads Bar and Nightclub of the BRA for the year 2011. The agreement lists services which will be provided by the sponsor, relevantly under the heading’ SERVICES AGREED TO BY THE SPONSOR’. Item 2 states ‘the Sponsor agrees to pay the Sponsorship Recipient sum of $8800 into semi-annual payments of $4400 at the commencement of each university semester’. Mooseheads also agrees to provide loyalty cards for the members of the BRA, and to provide sponsorship with four annual kegs at Mooseheads. The BRA agrees to display Mooseheads’ logo on official BRA merchandise and paraphernalia.
(b)Written statements from those members of the BRA who were responsible for the negotiation of the agreement. From those statements, it is obvious that there was a meeting between Ms Miladinovic and representatives of the applicant. The purpose of the meeting was to negotiate a sponsorship agreement for the 2011 calendar year.
During the hearing Ms Miladinovic agreed with the applicant’s submissions that there was a binding contract between the parties, the terms of which were recorded in the written Memorandum of Understanding. The tribunal notes that in final submissions by the respondent, the existence of a binding agreement was not challenged.
The BRA emailed to Ms Miladinovic an invoice dated 13 May 2011. This invoice itemised first semester sponsorship in the amount of $4400 and included the notation ‘please pay by direct deposit’. The bank account details were on the invoice. In response to a request from Ms Miladinovic, the BRA on the same day sent a more detailed invoice. That invoice also contained the relevant bank account details and asked for payment of the amount of $4400. Again the invoice contained the statement ‘please pay by direct deposit’. Ms Miladinovic did not pay this invoice.
On or about 23 May 2011, a male person telephoned the respondent and spoke to Ms Miladinovic. That caller requested that the sponsorship monies be paid by cash to be collected from Mooseheads premises. Ms Miladinovic gave evidence that she placed $7000 cash in an envelope and gave instructions to the bartender to give the envelope to the representative of Burgmann. Ms Miladinovic gave evidence that she observed a male wearing a Burgmann rugby jumper enter the bar area at Mooseheads, and the bartender handing the envelope containing the $7000 cash to that male person. That male person remained in the premises for a short time and then departed. Ms Miladinovic gave evidence that the male person did not identify himself by name, that she had never established his identity, and that she asked for no receipt for the $7000 in cash.
The BRA and Mooseheads continued to deal with each other in relation to the organisation of ‘keg nights’ and there were some correspondence between the parties relating to an incident which occurred at one of those keg nights.
Following the correspondence relating to that incident Mr Murray Robertson, a member of the executive committee of the BRA, contacted Ms Miladinovic by email on 18 August 2011 and said: I hope your break was good. Thank you so much for that [the reply regarding the incident], our Principal and our resident will be relieved. Michael, our Treasurer told me that our invoice hasn’t come through with Semester One payment for the sponsorship, is it possible to fix that?
Ms Miladinovic replied by email on the same day: That is bazarr [sic] as a cash payment was picked up by one of your committee the week of your after party and ball I have noted it in my cashbook for the end of July I think but it was the Tuesday or Wednesday before the ball.… I cannot remember who rang but they said that they wanted the payment in cash to pay for things relating to that night…. I said I preferred a chq but they said the clearance period would not make payments so a cash deposit would be accessible immediately. I have not even given it a thought as this is the first time I have heard of anything relating to that payment. Follow-up with your committee one of them has picked it up and put it into your account.
The applicant asserts that the respondent has not paid the amount agreed as sponsorship to the BRA and further asserts that if a male person collected $7000 in cash from Mooseheads, that male person was not a member of the committee of the BRA, nor was that male person authorised by the committee of the BRA to collect any funds from Mooseheads.
This application seeks payment of the sum of $8800 pursuant to the sponsorship agreement.
THE ISSUES BEFORE THE TRIBUNAL
The following issues are before the tribunal:
a)Is there an enforceable agreement between the parties?
b)What are its terms?
c)Was the payment made by Mooseheads in fulfilment of the terms of that agreement?
d)Did the male person who collected the $7000 cash have actual or apparent authority from the applicant to do so?
THE AGREEMENT
The applicant submitted that there is an enforceable contract between the parties. The applicant asserted that the contract consists of the written Memorandum of Understanding, as described in paragraph 5 above and an implied term that the respondent would pay the amount agreed under the contract by a bank transfer or cheque. That term is said to be implied either from a course of dealing between the parties or to give business efficacy to the contract.
The respondent submitted that the parties had entered into an oral contract and that the Memorandum is either a description of the agreement or a record of an already existing agreement.
The respondent urged the tribunal to deal with this matter as a breach of contract application rather than an action based on the tort of negligence.
The tribunal finds that there was an enforceable agreement between the parties the terms of which were partly written and partly oral, with the express terms of the agreement being recorded in the document entitled ‘Memorandum of Understanding’. The express terms of the agreement were that the respondent would pay an amount of $8800 to the applicant; that the respondent would provide loyalty cards for use by the members of the applicant’s Association; and that the respondent would provide four annual kegs at Mooseheads, or the equivalent, in drink vouchers. The tribunal notes that it was an express term of the agreement that $1000 of the $8800 be allocated to the Doomadgee-Burgmann Community Partnership. The applicant agreed to display Mooseheads’ logo on official BRA merchandise and paraphernalia, to use the funds for purposes other than the purchase of alcohol and to support Mooseheads’ responsible service of alcohol policy.
The applicant submits that there ought to be implied into the agreement a term that payment would be either by direct deposit to the BRA’s bank account or by cheque. The implication of this term is said to arise either in law to give business efficacy to the contract or in fact from a course of previous dealings between the parties. The tribunal accepts the evidence of the applicant that, in relation to previous sponsorship agreements between the parties from 2008, payment had been made by cheque.
The implication of a term to give business efficacy to a contract is subject to the test set out in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1978) 52 ALJ R 20. The term must be reasonable and equitable and necessary to give business efficacy to the contract. No term will be implied if the contract is effective without it; so obvious that it ‘goes without saying’; capable of expression and not in contradiction of any express term of the contract. The term sought to be implied by the applicant fails this test. The contract would operate effectively in the absence of such a term, and it is not so obvious that it goes without saying.
There is more force in the applicant’s contention that, from a combination of past conduct and the terms of the invoices which request payment by electronic transfer, the tribunal should imply a term that payment was required by one of these two methods. This is not a case of implication arising by way of custom or trade. The courts may imply such a term to give effect to the intention of the parties. The evidence does not allow the tribunal to ascertain whether either or both of the parties at the time of formation of the contract had intended that payment would be by cheque in accordance with past practice, or by bank transfer as requested on the invoices in evidence. The tribunal declines to imply such a term.
Nevertheless, the tribunal notes that the contract may properly be interpreted to require performance of the obligation of the respondent by payment to the applicant, BRA, or a properly authorised representative.
WAS THE PAYMENT MADE BY MOOSEHEADS?
Ms Miladinovic gave evidence that on or about 23 May 2011 she was told by an employee that someone was on the phone wishing to speak to her. When she picked up the phone, a male requested Mooseheads to pay the year’s sponsorship money in cash rather than by direct transfer. The caller said that payment in cash was requested because money was needed for the Burgmann Ball to be held on 26 May, and payment by cheque or direct transfer would not clear quickly enough. Ms Miladinovic agreed to make $7000 in cash available to be picked up. She gave evidence that she believed that the caller was a representative of the applicant because he knew to ask for her by name, knew that the Burgmann Ball was going to be held that week and was aware of the substance of the agreement between Mooseheads and the BRA.
Ms Miladinovic gave further evidence that on or around 24 May 2011 she placed $7000 in cash in an envelope and instructed the bartender to call her when someone from Burgmann came to pick up the cash. At around 2:58 pm, the bartender approached her and told her that the Burgmann representative had arrived to collect the money. She instructed the bartender to give the Burgmann representative the money and she observed the bartender giving the envelope containing the $7000 cash to a male wearing a Burgmann College rugby jumper. She further observed that the male remained in Mooseheads for approximately 5 minutes and then left.
Ms Miladinovic provided to the tribunal documentary evidence in support of these assertions:
a)an Account Transactions statement, with the heading ‘Sponsorship’, showing that on 8/06/2011 an amount of $7000 was paid to ‘Cashbook’. This statement has been annotated and the word Burgmann has been added after the word Cashbook.
b)a copy of the invoice dated 13 May 2011 which has been annotated by Ms Miladinovic to say ‘paid $7000 cash on 24 May remainder of monies to be allocated to next year sponsorship: not happy’. The annotation is undated.
c)a copy of a cash receipts statement which shows payment of $7000 to Burgmann College on 25 May 2011.
Ms Miladinovic did not call either the employee of Mooseheads who took the phone call or the bartender to give evidence. Ms Miladinovic stated that the footage from the respondent’s CCTV file for 24 May 2011 had not been retained.
Ms Miladinovic could not recall the name of the person to whom the money was given. She said that she did not obtain from that person a receipt for the payment of $7000 in cash. She stated that such cash payments made without receipt were not uncommon in her business activity.
There is no independent evidence to support Ms Miladinovic’s evidence in relation to the payment of the $7000 in cash to an unidentified male wearing a Burgmann rugby jumper.
The applicant states that no person authorised by the BRA attended at Mooseheads for the purpose of collecting sponsorship money in cash, nor did anyone authorised by or representing the applicant collect cash. The tribunal had before it statements from Mr Michael Asher, Treasurer of the BRA; Mr Jarrod Hulme-Jones, President of the BRA; Mr Samuel Stapleton, Vice-President of the BRA and Mr Murray Robertson, Vice-President of the BRA. Each of these made written statements in similar terms: that they personally did not collect cash from Mooseheads and that to their knowledge no one associated with the BRA collected cash from Mooseheads on 24 May 2011.
An email from Mr Murray Robertson to Ms Miladinovic dated 18 August 2011 states ‘..our Treasurer told me that our invoice hasn’t come through with Semester One payment for the sponsorship, is it possible to fix that?’ In reply on the same day, Ms Miladinovic says ‘a cash payment was picked up by one of your committee the week of your after party in ball I have noted it in my cashbook to the end of July I think but it was the Tuesday or Wednesday before the ball… I cannot remember who rang but they said they wanted the payment in cash to pay for things relating to that night… I said I preferred a chq but they said the clearance period would not make payments so a cash deposit would be accessible immediately.’ Subsequent correspondence from the applicant confirmed that no one from the committee picked up a cash payment and noted that it ‘wouldn’t be the safest option to carry around 4 grand on a night out’. In a later email on 19 August 2011 Ms Murray Robertson says ‘Did you know the person’s name? Again we have not received any payment to this year and I’m confused how a stranger somehow managed to get 7000 dollars. I can recheck our accounts but at this stage we don’t have that 7000 dollars and unless you can confirm that the person who picked up that money was from Burgmann we will still be asking for our sponsorship payment’.
The Tribunal accepts the evidence of the applicant that the money has not been received by it, and was not collected by any person authorised to do so. The tribunal notes that while the evidence of Ms Miladinovic is not consistent, that may simply be the result of imprecise business accounting practices, and accepts that it is more likely than not that she did in fact arrange for payment of $7000 in cash to a person whom she did not identify by name and from whom she requested and received no receipt.
DID THE MALE PERSON WHO COLLECTED THE MONEY HAVE IMPLIED AUTHORITY, OR DID THE COMMITTEE HOLD THIS PERSON OUT AS HAVING AUTHORITY FROM THEM TO COLLECT THE MONEY?
The respondent asks the tribunal to find that the person who collected the money, and was in possession of information relating to the name of the sponsor, and the person to contact and the ball dates, was a member of the committee of the applicant. No evidence was provided upon which the tribunal could make any such finding. Based on the facts set out above, the tribunal is satisfied that no person was authorised by the committee of the BRA to collect cash from the respondent and that the person to whom the payment was made, did not have the applicant’s actual authority to do so.
The respondent argues that a member of a committee of an incorporated association such as the applicant could be presumed to have authority to make commitments to bind the incorporated association. The tribunal accepts this as a proposition of law. However, in the absence of any evidence about who the person was, it is not possible to identify him as a committee member of the applicant. There is no evidence upon which the tribunal could base a conclusion that the unidentified male had implied authority to collect the $7000 in cash.
The respondent argued that the unidentified male had ostensible authority given that he was in possession of knowledge about the details of the sponsorship and that the applicant had in some way armed him with the information that allowed him to hold himself out as a representative of the BRA. It is further submitted that the applicant failed to properly safeguard that information and that by its conduct, armed the unidentified male with ostensible authority. No evidence was provided to support this assertion.
The tribunal notes that the primary purpose of the sponsorship is to provide publicity and endorsement for the sponsor. To this end, the committee of the BRA would have a general meeting of the BRA and have revealed to its membership that it had been successful in obtaining sponsorship from Mooseheads. Further, the amount of money to be provided, the provision of the kegs or drink vouchers and the requirement for the display of the Mooseheads’ logo on merchandise and other paraphernalia such as rugby shirts, would be known to any member of the BRA.
The tribunal finds that the unidentified male who received a cash payment of $7000 from the respondent had neither actual, implied or ostensible authority to do so.
The payment of money to a person who was not a party to the contract, and was not authorised actually or by implication to receive such payment, did not fulfil the respondent’s contractual obligation. The obligation remains outstanding.
The respondent also argued that the amount owed pursuant to the contract between the parties was $8000 and not $8800, because the applicant did not collect the GST. The express words of the agreement as recorded in the Memorandum of Understanding are that an amount of $8800 shall be paid in semi-annual payments at the commencement of each university semester. The agreement is silent as to the GST.
CONCLUSION
From the evidence available to it and the submissions made by the parties, the tribunal is satisfied that the respondent, Mooseheads, is liable to pay to the applicant, BRA, the amount of $8939, being the aggregate of the amount claimed by the applicant ($8800), the application fee ($127) and the fee paid for ASIC search ($12).
………………………………..
Ms J. Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | XD 12/1398 |
PARTIES, APPLICANT: | Burgmann Residents’ Association Inc. |
PARTIES, RESPONDENT: | Caftor Pty Ltd T/as Mooseheads. |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | Ms J. Lennard – Senior Member |
DATES OF HEARING: | 4 April 2013 |
PLACE OF HEARING: | ACAT , Canberra |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0