D Chojnowski & M S Gonzales t/as Dan's Custom Car Lights v Anaxus Info Tech Pty Ltd
[2025] QCAT 120
•5 March 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
D Chojnowski & M S Gonzales t/as Dan’s Custom Car Lights v Anaxus Info Tech Pty Ltd [2025] QCAT 120
PARTIES:
D. CHOJNOWSKI AND M. S. GONZALES TRADING AS DAN’S CUSTOM CAR LIGHTS ABN 35862847757 (applicant)
v
ANAXUS INFO TECH PTY LTD ABN 31635329912 (respondent)
APPLICATION NO/S:
MCDO15/23
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
5 March 2025
HEARING DATE:
31 May 2023
HEARD AT:
Beenleigh
DECISION OF:
Adjudicator Struik
ORDERS:
1. The Applicant’s claim of $2,500.00 for damage cause stress anxiety preparation of documents/application, time cost (off work) is dismissed.
2. The Applicant’s claim for a refund of $2,102.00 is dismissed.
3. The Applicant’s claim for relief from payment of the sum of $12,760.00 is granted to the extent of $4,752.00 only.
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – consumer trader dispute – trader and trader dispute – whether trader a consumer – contract – breach of contract – whether termination lawful – Australian Consumer Law – whether fit for purpose
Competition and Consumer Act 2010 (Cth), Schedule 2, s 60, s 61, s 62, s 267, s 269
Fair Trading Act 1989 (Qld), s 50AQueensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 11, s 12, Schedule 3
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
No Appearance
REASONS FOR DECISION
The Applicant is an online retailer of custom car lights and accessories. It entered into a Professional Services Agreement with the Respondent to design and implement an eCommerce back-end system for the sale of its products online. The Applicant claims that the Respondent failed to deliver an adequate design in a reasonable time that was fit for purpose and terminated its contract with the Respondent prior to its completion. The Respondent denies it failed to provide the services in accordance with the design contract and claims the Applicant wrongfully terminated the contract.
The Applicant has filed an Application for Minor Civil Dispute – Trader Dispute claiming
(a)$2,500.00 for damage caused by stress, anxiety, preparation of documents/application, time cost (off work);
(b)a refund of $2,102.00 - half of the money we paid- not getting anything in return at the end, time + money lost;
(c)relief from payment of $12,760.00 - money demanded from the Respondent; and
(d)$367.00 payment for the filing fee for the Application.
I am satisfied that the claim is for breach of contract and warranties contained in Schedule 2 of the Competition and Consumer Act 2010 (referred to as the ‘Australian Consumer Law’ or the ‘ACL’).
Jurisdiction
The Tribunal has jurisdiction to hear minor civil disputes[1] up to the prescribed amount of $25,000.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 11.
[2]Ibid.
The Tribunal’s jurisdiction is exercised upon application by a relevant person. A relevant person for a claim arising out of a contract between two (2) or more traders, means any of the traders.[3]
[3]Ibid, s 12(4)(c) and Schedule 3.
“Trader” is defined by the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) as a person who, in trade or commerce, carries on a business of supplying goods or providing services.
I am satisfied that the Applicant is a relevant person within the definition of the QCAT Act and that the Tribunal has jurisdiction to determine the matter as a dispute between two traders.
Section 50A of the Fair Trading Act 1989 (Qld) (‘FTA’) vests the Tribunal with jurisdiction in relation to certain actions under the ACL, these include an action by a consumer against the supplier of services[4] and termination of contracts for the supply of services.[5]
[4]ACL s 267.
[5]Ibid, s 269.
“Consumer” for the supply of services (as defined in the ACL) is (amongst other things) a person (which includes a corporation) who has acquired particular services as a consumer for an amount not exceeding $40,000.[6]
[6]Ibid, chapter 1, s 3(3)(a).
As the contract for services between the parties did not exceed $40,000, the Applicant is a consumer for the purposes of the ACL, and the guarantees and remedies contained in the ACL apply to the contract between the parties. These include a guarantee as to due care and skill,[7] fitness for a particular purpose[8] and a guarantee as to reasonable time for supply.[9]
[7]Ibid, s 60.
[8]Ibid, s 61.
[9]Ibid, s 62.
A consumer may take action against a supplier of services if a guarantee is not complied with and (with respect to guarantees under s 61 and 62 of the ACL) so long as the failure to comply did not occur as a result of an act, default of omission made by any person other than the supplier.[10]
[10]Ibid, s 267(1).
Remedies
If the failure can be remedied and it is not a major failure, the consumer can require the supplier to remedy the failure within a reasonable time. If the supplier refuses to remedy the failure the consumer may have the failure remedied and take action against the supplier to recover all reasonable costs or terminate the contract for the supply of services.[11]
[11]Ibid, s 267(2).
The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such failure.[12]
[12]Ibid, s 267(4).
If a consumer terminates a contract for the supply of services the consumer is entitled to recover, by action against the supplier of services, a refund of any money paid and an amount that is equal to the value of any other consideration provided by the consumer for the services to the extent the consumer has not already consumed the services at the time of the termination takes effect.[13]
[13]Ibid, s 269.
What was the contract between the parties?
The Respondent describes itself as a full-service Digital Agency.
The Respondent offers to provide clients with well-designed, fairly priced, bespoke, functional websites, portals, web-based office automation software and SEO. The Respondent says it can give its clients a website/portal/e-commerce store that’s both visually exciting and deals with the demands of the client’s business.
In or around September 2021, the parties entered discussions regarding the provision of website design services by the Respondent to the Applicant. The parties signed a “Business to Business” Professional Services Agreement on or about 13 September 2021. The Agreement essentially provides that the Respondent will supply to the Applicants an interactive eCommerce website, including domain registration, as well as hosting, as per the Scope of Work.
The Applicant argues, in summary, that the Respondent failed to correctly scope the Design Proposal based on prior communications regarding their requirements. They claim the Respondent falsely represented its capacity to be able to produce a design that was fit for purpose for the Applicant’s online business and that what was designed was not what was agreed and was unfit for the purposes of its business. The Applicants say that in simple terms which they communicated to the Respondent that they required a website that would at least be as functional as their existing website but have the added functionality of a filter option.
The Respondent, in summary, submits that it has produced what was agreed between the parties and set out in the Scope of Work. The project design was based on information provided by the Applicants, and the Scope of Work was developed on this basis. They rely upon the Scope of Work set out in the Professional Services Agreement and the terms and conditions of that agreement.
Evidence
The Applicants have not produced any evidence that the website was not fit for the purpose of the Applicant’s online business, and they have not produced any evidence that the completed website was not what was agreed. They have not produced any evidence that would enable the Tribunal to make any assessment as to the functionality or otherwise of the website which, as acknowledged by the Applicants had been completed (with mistakes being found although minor).
The Applicants say that the Respondent failed to meet the 3-6 month time frame for completion of the website as set out in the Agreement.
The Agreement contains a provision in Clause 5 that the Applicant must provide the project’s custom content and any related specifics of the Applicant’s business in the format and manner the Respondent specifies. The Applicant refused to supply the information in the format requested, that is by giving access to the Applicant’s current website. I am satisfied that the primary reason the original time frame was not met was due to the Applicant’s refusal to provide the Respondent with necessary information in the format requested by the Respondent. I am satisfied that the website was to be populated with product information as part of the agreement, but this information was continually changed and updated by the Applicants who expected the Respondent to make the changes as part of the Original Scope of Work. In my view this was an unreasonable expectation of the Applicants and not within the contemplation of the parties when the Contract was made. Further, the Applicants did not take every reasonable opportunity to ensure that the process proceeded as quickly as possible. The Applicants were otherwise occupied in the running of their business. They took holidays during this time and clearly adopted an attitude that they did not have the time to respond promptly to emails in relation to the new website.
Nevertheless, the Respondent made the changes, but this took time. I am satisfied that the time frame in which the website was completed in was not unreasonable in the circumstances.
The Applicants claim that they received unprofessional service from the Respondent at the same time as being demanded to pay more than the amount of the Contract. The Applicant says that the Respondent’s salesman Mr Gupta represented that the offer included, “full maintenance of the website and any completion or changes that need to be done such as adding/editing products, updating products pricing, and launching promotion/sale when there is one”. The Respondent says that “included maintenance” only implies the smooth functioning of the website and fixing any bugs or technical glitches without any additional charges. It does not mean adding details and doing unlimited changes after the website has been completed without an extra charge.
I am satisfied that the extent of data changes and updates during the development stage was beyond that contemplated by the parties when negotiating the Contract. Nevertheless, the Respondent made the necessary changes to the website, and it was only when the website was completed that the Respondent reiterated to the Applicants that any further changes would incur additional charges as the Contract provided for in Clauses 3 & 4. It was at this point that the Applicants sought to terminate the Contract.
The Applicants had around this time sought out alternative suppliers for an eCommerce website and had formed the view that the Contract they had signed with the Respondents was not competitive. In my view, this is the real reason that the Applicants decided to terminate the Contract.
I find that the Applicants were not entitled to terminate the Contract. I find that the Respondent had substantially carried out its obligations.
I am not satisfied that the Respondent has failed to meet the guarantees as to due care and skill, fitness for a particular purpose and the guarantee as to a reasonable time to supply.
Orders
For the reasons stated, I order
(a)The Applicant's claim of $2,500.00 for damage caused by stress, anxiety, preparation of documents/application and time cost (off work) is dismissed.
(b)The Applicant's claim for a refund of $2,102.00 is dismissed.
(c)The Applicant's claim for relief from payment of the sum of $12,760.00 is granted to the extent of $4,752.00 only.
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