Koman v The Guitar Gym Pty Ltd
[2012] QCATA 195
•10 October 2012
| CITATION: | Koman v The Guitar Gym Pty Ltd and Anor [2012] QCATA 195 |
| PARTIES: | Laura Koman (Applicant/Appellant) |
| v | |
| The Guitar Gym Pty Ltd (First Respondent) John Roland Freiberg (Second Respondent) |
| APPLICATION NUMBER: | APL068-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 10 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | Minor civil dispute – where applicant contends the parties entered to a contract for the supply of marketing services by the applicant – where agreement said to be oral and written – whether the evidence supports a finding that the parties intended to create legal relations – whether agreement that the marketing costs to be offset by the provision of guitar lessons by the respondent Queensland Civil and Administrative TribunalAct2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Freiberg is a director of the Guitar Gym Pty Ltd. In November 2008 he started to provide guitar lessons to Ms Koman and her children. Soon after (December 2008), Ms Koman and Mr Freiberg began a relationship and Mr Freiberg started to provide her children with free guitar lessons and reduced to cost base fee lessons for Ms Koman.
Ms Koman is qualified in and has sound background in business marketing. During the relationship over a two year period, Ms Koman provided some marketing advice to Mr Frieberg to assist him in developing his business.
When the relationship came to an end in November 2010, Ms Koman undertook an exercise whereby she calculated what would have been the cost of guitar lessons to her and the children and offset that against what she assessed to be the value of her contribution to the marketing of Mr Freiberg’s business. On 20 February 2011 Ms Koman rendered an invoice to the respondent for $26,415.00. Mr Freiberg did not pay contending there was no agreement about the provision of marketing services, no agreement about an hourly rate of $65/hr for such services and finally he did not agree to any contra arrangement whereby he would provides guitar lessons without charge. Ms Koman then filed an application for minor civil dispute – minor debt in the Tribunal on 21 April 2011.
On 19 January 2012 the matter was heard before a tribunal Adjudicator. After hearing evidence from the parties, and reviewing the emails relating to a possible contra-agreement, the learned Adjudicator found that there was no contract between the parties. He specifically made references to Ms Koman’s responses to emails rejecting offers of payment and the fact that she only issued an invoice two years after providing services. This made it difficult to establish that the elements of a contract had been made out, simply offer and acceptance. For that reason, the claim was dismissed.
From that decision, Ms Koman has filed an application for leave to appeal on 9 March 2012, on the following grounds:
a.Contrary to the law, the learned Adjudicator found that there was no contract to provide services because the Appellant did not deliver to the Respondents a written professional services agreement.
b.The learned Adjudicator erred by placing inappropriate weight, when considering the issue of an intention to create legal relations, on the absence of a written professional services agreement.
c.The learned Adjudicator erred by failing to give any weight or any sufficient weight to the base material put forward by the Appellant, which clearly established an intention to create legal relations.
As this is an appeal from a decision in the minor civil disputes jurisdiction leave to appeal is necessary.[1] Leave to appeal is ordinarily granted in accordance to established principles: whether there is a reasonably arguable case of error in the primary decision;[2] whether the applicant has reasonable prospects at obtaining substantive relief;[3] whether leave is necessary to correct a substantial injustice to the applicant caused by some error;[4] whether the matter is of general importance of which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[5]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The only issue in the appeal is whether the facts supported a finding that the parties entered into an agreement of the type relied on by Ms Koman. If the answer to the question is yes then there is an error of law and leave to appeal should be granted. The learned Adjudicator, quite rightly considered the objective evidence including the conduct of the parties to assist in coming to his decision.
To establish elements of a contractual relationship required a finding as to whether the parties evinced an intention to create legal relations. In contract law, this intention must be mutual, a consensus ad idem or ‘meeting of the minds’ in which both parties consider themselves contractually bound.
In a professionally prepared statement of claim annexed to the minor civil dispute application Ms Koman sets out in detail the fact relied upon to show that the parties entered into a contract. She says the contract was partly written and partly oral. Importantly, the documents relied upon, that is the emails between them on 6 March 2009, 9 March 2009 and 12 July 2010. These emails do nothing more than inform the reader that there were ongoing discussions about a limited marketing role for Ms Koman in the business. There was no fixed agreement about the time to be spent, the hourly rate or how payment was to be made. There was not mention of a contra-arrangement for guitar lessons. In fact the content of the emails is to the contrary. An example is this statement from the applicant: “I don’t really need to be paid for this and I have never asked to be. You are teaching me and the kids and I think that is enough.”
The pleading refers to express terms of the agreement and implied terms. Again the evidence to support this contention is vague at best and after reading the transcript of evidence one can observe is nonexistent. In her evidence Ms Koman does not say when the arrangement was put in place, did not give evidence about Mr Frieberg agreeing to $65/hr or how much work was to be done. On the other hand Mr Frieberg freely gave his time to teach the children.
The most telling evidence against a finding of an intention to create legal relations is that Ms Koman had to go back through her records, after the relationship broke down, to calculate the time spent on marketing matters. She is an astute business woman, as the learned Adjudicator found, and one would expect if she truly expected to be paid for her work, she would have rendered invoices on a regular basis to ensure that Mr Freiberg was happy with the time spent on marketing, given the reservations expressed in his emails about what he could afford to pay for this service.
In my view, on the material before the learned Adjudicator, including the oral evidence, he had no choice but to conclude that the parties never reached an agreement of the type pleaded in the statement of claim. His reasons are brief, but to the point, and he quickly grasped the main issue to be decided in the case before him. There is no error in his reasoning nor is any apparent. Therefore leave to appeal is refused.
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