Foy v Riches - [2014] QCATA 223

CITATION:

Foy v Riches [2014] QCATA 223

PARTIES:	Amanda Foy t/as Ipswich Home and Lifestyle Show (Applicant/Appellant)
v
Bradley Riches (Respondent)

APPLICATION NUMBER:

APL234-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe, OAM

DELIVERED ON:

11 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Pickering v McArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Ms Foy had the idea of reinvigorating Ipswich business after the 2011 by organising a Home Show. She planned to hold the inaugural show in September 2012. Mr Riches, trading as Plants Plus Raceview was a sponsor of the Home Show. He agreed to pay Ms Foy $5,500 under a written sponsorship agreement dated 8 October 2011.
On 20 July 2012, Ms Foy sent Mr Riches a letter inviting him to terminate the sponsorship agreement under clause 6.0. On 27 July 2012, Ms Foy told Mr Riches that she was cancelling the show. The show did not take place. Mr Riches filed a claim for a refund of the money he paid Ms Foy. The tribunal ordered that she refund the money by instalments.
Ms Foy wants to appeal that decision. She says she was placed at an “unfair advantage” because she had only two days notice of the tribunal’s mediation. She says she did not receive notice of the first hearing. She says the fact the learned Adjudicator sat on the first hearing affected his perception of her in the second hearing. She says the learned Adjudicator was condescending and belligerent. She says the learned Adjudicator did not consider relevant evidence. She says the learned Adjudicator did not allow her to hand up relevant evidence. She says the learned Adjudicator did not take into account the benefit Mr Riches received from the advertising prior to the event being cancelled.
Ms Foy wants the tribunal to reconsider the matter with some particular matters in mind. She wants the tribunal to take account of: the benefit she provided to Mr Riches; the delay in Mr Riches taking action; that Mr Riches did not give her adequate time to prepare her defence; that Mr Riches was in breach of contract and that breach contributed significantly to the failure of the show; that Mr Riches shares responsibility for the failure of the show by wanting to pull out six weeks beforehand; and that he refused a settlement offer.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The tribunal file shows that the notice of mediation was posted on 13 November 2013 for mediation that occurred on 17 December 2012, over a month later. I do not understand how Ms Foy can say that she had only two days notice for mediation. Even if she did receive short notice, the worst result is that mediation was unsuccessful because of hurried preparation. It did not affect Ms Foy’s ability to appear at the later hearing to present her case.
The fact that Ms Foy did not receive notice of the first hearing was cured by the reopening application. Nothing else turns on that fact.
The same learned Adjudicator presided at both hearings. He made a point of telling the parties that he was proceeding as if the first hearing had not occurred[3]. He took evidence from both parties and heard their submissions. There is nothing in the transcript to suggest the learned Adjudicator had pre-judged the issues in dispute.
[3]Transcript page 1-2, lines 16 – 18.
I have listened to the transcript. The learned Adjudicator asked Ms Foy some difficult and uncomfortable questions but I am not satisfied that the learned Adjudicator’s tone was condescending or belligerent. The learned Adjudicator was trying to elicit from Ms Foy the basis of her defence. He allowed Ms Foy to speak for a much longer period than Mr Riches. He invited Ms Foy to explain why she should not be liable to Mr Riches. The learned Adjudicator did tell Ms Foy there was ‘no sympathy in this’[4]. That is not a surprising statement, given that the dispute was one between traders. I am satisfied that the learned Adjudicator observed the rules of natural justice and there is no basis for granting leave to appeal.
[4]Transcript page 1-14 line 32.
Ms Foy says the learned Adjudicator did not consider the Zone sponsorship document when making his decision. The learned Adjudicator did refer to it during the hearing. He pointed out to Ms Foy that the document may have spelt out a calendar of events but it did not apportion the sponsorship payment to those events[5]. I have looked at the sponsorship document. The learned Adjudicator is correct that, although it has a calendar of events, it does not link value to event. The learned Adjudicator was not in error.
[5]Transcript page 1-12 lines 18 – 24.
Ms Foy wanted to hand up ‘the quantity of interaction’[6] to show that Mr Riches received value for money. The learned Adjudicator told Ms Foy that he didn’t think the documents were relevant[7]. It is clear that the learned Adjudicator did not take into account the benefits Mr Riches received prior to the termination of the contract. For the reasons that follow, I agree with the learned Adjudicator’s decision.
[6]Transcript page 1-24 line 30.
[7]Transcript page 1-24 lines 43 – 44.
Clause 6.0 of the agreement between Ms Foy and Mr Riches states:
In the event of termination for any reason other than the failure to provide contracted fees or services, The Ipswich Home and Lifestyle Show may substitute an event with equivalent benefits with the approval of the PLANTS PLUS RACEVIEW or shall refund any cash received from PLANTS PLUS RACEVIEW by The Ipswich Home and Lifestyle Show.
On 20 July 2012, Mr Riches received a letter from Ms Foy inviting him to terminate the contract because there had been a gross breach of confidentiality. Under clause 6.0, Ms Foy could only substitute an event with Mr Riches’ consent. Mr Riches did not provide that consent. On 26 or 27 July 2012, Ms Foy told Mr Riches that she was not staging the show. The inescapable conclusion from clause 6.0 is that, as at 27 July 2012, Ms Foy was obliged to refund Mr Riches’ payments.
As the learned Adjudicator pointed out, the contract did not provide for a part return of funds, to acknowledge the work Ms Foy had done or the benefit Mr Riches may have received. Ms Foy had to return the money. She did not. Mr Riches was entitled to recover it through the tribunal proceedings.
There is no legal basis on which the tribunal can consider the benefit to Mr Riches. The tribunal did take account of Mr Riches’ delay in bringing proceeding as the learned Adjudicator did not order Ms Foy pay interest on the amount to be refunded. The time to prepare a defence is determined by the tribunal, not Mr Riches. Ms Foy had from November 2013 to April 2014 to prepare her defence, well in excess of the time usually available in the minor civil disputes jurisdiction. Mr Riches was in breach of the agreement – he failed to pay the last $500 – but Ms Foy took no action and she did not explain how that breach contributed to the failure of the show. Ms Foy complains that Mr Riches pulled out six weeks before the show, thereby adding to the failure but her letter of 20 July 2012 invited him to do just that.

There is nothing in the transcript that persuades me the learned Adjudicator should have taken a different view of the facts. There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.