Let's Enterprises Pty Ltd ACN 610 756 806 v Vlara Arden as trustee for the Unilever Family Trust Trading as Aim for Gain
[2022] QCATA 89
•14 June 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Let’s Enterprises Pty Ltd v Lara Arden as Trustee for The Unilever Family Trust trading as Aim for Gain [2022] QCAT 89
PARTIES:
LET’S ENTERPRISES PTY LTD
ACN 610 756 806(appellant)
V
LARA ARDEN AS TRUSTEE FOR THE UNILEVER FAMILY TRUST TRADING AS AIM FOR GAIN (respondent)
APPLICATION NO/S:
APL109-21
ORIGINATING APPLICATION NO/S:
Q773 of 2020
MATTER TYPE:
Appeals
DELIVERED ON:
14 June 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member WA Isdale
ORDERS:
1. Leave to appeal is granted
2. The appeal is dismissed
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – whether leave to appeal should be granted – whether appeal brought out of time - whether applicant afforded procedural fairness – where parties fell into a contractual dispute – whether contract entire or severable – whether there was consideration - whether the interests of justice require that costs be awarded
Queensland Civil and Administrative Tribunal Act 2009
In Re The Continental C. and G. Rubber Company Proprietary Limited (1919) 27 CLR 194
Kioa v West (1985) 159 CLR 550
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Background
On 03 March 2021, a QCAT Adjudicator heard matter Q773 of 2020 at Southport. The matter, a claim by what, for convenience, will be referred to as the company against the trust, was heard and determined with an ex-tempore decision. The hearing commenced at 2:50pm and ended 51 minutes later, at 3:41 pm, with the making of three orders. The proceeding was recorded and has been transcribed into 17 pages of record.
The dispute heard at Southport
The dispute was a consumer one, seeking a refund of $1,499.[1] Mr O’Dwyer represented the company seeking the refund and Ms Arden appeared for the respondent.[2]
[1]T 1-2, line 30.
[2]T 1-2, lines 7-21.
The agreement under which the funds sought to be recovered were paid was said to be for “business counselling support in the way of sales and marketing to the value of $3,000.”[3]
[3]T 1-4, lines 14-24.
Asked by the Adjudicator whether anything was received, Mr O’Dwyer provided a copy, which became exhibit 1, of an outline that had been written on a whiteboard.[4]
[4]T 1-5, lines 5-33.
There were three business sessions, one a month, held in pursuance of the business arrangement, and an unspecified number of e-mails were received by the applicant.[5] Mr O’Dwyer stated that the respondent, referred to by him as “she”, apparently meaning Ms Arden, was “…to provide presentations for me to provide it in podcasts…”.[6] The cost was to be $3,000, paid over six invoices, for services to be rendered by December 2020. Three invoices were paid; three were not.[7] The amount of $1,499 was paid.[8]
[5]T 1-5, line 37 – 1-6, line 30.
[6]T 1-4, line 47 – 1-5, line 1.
[7]T 1-4, lines 31-40.
[8]T 1-7, line 36.
In the course of the hearing it became clear that the applicant was not seeking a refund of the $1,499 paid but only relief from payment in the balance of the $3,000, i.e. $1,501.[9]
[9]T 1-7, line 36 – 1-8, line 1; Cf: note 2.
This change in what the applicant was seeking was immediately identified by the respondent.[10]
[10]T 1-8, lines 28-30.
The Adjudicator obtained clarification from the claimant, who stated that he had meant to seek a refund.[11]
[11]T 1-8, lines 32-41.
Ms Arden sought to introduce some material, including copies of text messages from Mr O’Dwyer and notices of demand from him.[12]
[12]T 1-10, lines 3-9.
Mr O’Dwyer was asked if he had any objection to the Adjudicator receiving the material.[13] He replied that he had only just seen them for about 30 seconds and did not really know what was in them.[14] The Adjudicator offered him an opportunity to look through the material, which he did not avail himself of.[15] The material was handed to the Adjudicator without objection.[16]
[13]T 1-10, lines 11-12.
[14]T 1-10, lines 14-15.
[15]T 1-10, lines 17-21.
[16]T 1-10, line 31.
The parties agreed that a non-publication order should be made, so that was not in dispute.[17]
[17]T 1-13, line 40 – 1-14, line 7.
The Adjudicator gave ex-tempore reasons, beginning at line 40 on page 14 of the transcript. The non-publication order, which was by consent, was made first. The Adjudicator found that what was being sought was both a refund of what was paid and relief from having to make any further payments.[18]
[18]T 11-15, lines 1-4.
It was found that the agreement was for business counselling, with things such as Linkedin prospects and podcasts, with $3,000 to be paid over a defined period.[19]
[19]T 1-15, lines 19-23.
It was found that some services were provided, three “whiteboard sessions” of approximately an hour each and two meetings of around 45 minutes each. There were also several items of e-mail correspondence. The respondent’s case was that 150 hours of time were spent providing services to the applicant. While noting the differences in the evidence, the Adjudicator did not doubt the credibility of either party.[20]
[20]T 1-15, lines 31-45.
The Adjudicator noted “an overlay of complexity”[21] relating to a personal relationship between the individuals who appeared in the matter.
[21]T 1-16, line 1.
The Adjudicator was not satisfied that, at the time of formation of the agreement, there was a personal relationship. It was also decided that there had been services provided.[22] The Adjudicator had regard to what was described as “quantum meruit”, which was explained as “pay them what they are worth”.[23]
[22]T 1-16, lines 13-35.
[23]T 1-16, lines 36-38.
The Adjudicator was not satisfied that there was sufficient evidence to make an order for a refund of monies paid up until the agreement was, effectively, terminated.[24] This was because some services were rendered.[25]
[24]T 1-16, line 45 – 1-17 line 2.
[25]T 1-16, lines 1-2.
In addition to the agreed non-publication order, two other orders were made; that the applicant did not have to pay anything more in relation to the agreement and that the application for a refund of what had been paid was refused.[26]
[26]T 1-17, lines 21-36.
This, as has been mentioned, took place on 03 March 2021.
The present proceedings
Written submissions have been provided on behalf of the parties. The matter will be decided on the basis of those submissions and the record, by way of a rehearing.
The applicant’s submissions
In the applicant’s written submissions, it is stated that the appeal may be conveniently subsumed into three grounds:
(a)The procedural fairness ground;
(b)The contractual construction and consideration ground; and
(c)The quantum meruit ground.
The respondent’s submissions
The respondent’s submissions also have three aspects; they are:
(a)The limitation issue; that the application for leave to appeal and the appeal are out of time and should be dismissed;
(b)The findings issue; that the applicant’s submissions are based on a false understanding of the findings which have been made;
(c)The costs issue; that the appeal is frivolous and vexatious and the respondent should have its costs paid by the applicant.
The appellant’s submissions
Consideration
The question of whether the appeal was brought out of time is one where the merits of the appeal, that is the prospects of it being successful, is a relevant consideration. The respondent’s submissions, received on 26 November 2021 by QCAT, addresses this aspect first. The applicant’s submissions, received by QCAT on 18 June 2021, do not address it at all.
In view of the objects of the Queensland Civil and Administrative Tribunal Act 2009 (‘the Act’),[27] particularly those expressed in section 3(b) of the Act, and in view of the relevance of the merits of the proposed appeal to the decision regarding leave to appeal, the merits will be considered first and the decision regarding leave made in light of that consideration.
[27]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Section 3(b) of the Act says that among its objects are:
(b) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick;
The three grounds of appeal will be considered in the order in which they were provided.
The procedural fairness ground
The applicant points to section 28(3)(a) of the Act. It is there provided that:
(3) In conducting a proceeding, the tribunal—
(a) must observe the rules of natural justice;
The Adjudicator was “the tribunal”.
It is submitted that by section 28(3)(a) of the Act the tribunal must observe the rules of natural justice. In the same sub-section, it is also provided that it:
(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and
(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
The rule of natural justice pointed to by the appellant is what has been referred to as procedural fairness. It is submitted that the Adjudicator permitted the respondent to submit a bundle of material “…that had not been seen by the appellant”.[28] The transcript records a somewhat different occurrence.[29] In fact, the complaint made at the time was that the appellant had only seen the material for 30 seconds and did not really know what was in it.
[28]Appellant’s submissions [1.2].
[29]See n 14.
It is submitted that the Adjudicator encouraged the appellant to waive his rights to review the new material after making it known that he desired a speedy resolution of the dispute, the appellant not being given an opportunity to consider the material and make submissions concerning it.[30]
[30]Appellant’s submissions [1.3].
The entirety of those submissions is contradicted by the transcript, the official record of the hearing. As has already been referred to, the Adjudicator offered the appellant an opportunity to look through the materials. This was offered without any request for that opportunity having to be made.[31] Concerning the submission that the Adjudicator encouraged the applicant to wave his rights after making it known that he (the Adjudicator) desired a speedy resolution, this is contradicted by the transcript which records that the Adjudicator offered the appellant an opportunity to look through the materials, in fact saying “…you’re welcome to…”.[32]
[31]T 1-10, lines 17-19.
[32]T 1-10, lines 17-19.
As to the Adjudicator indicating a desire to proceed inappropriately speedily: as well as being contradicted by the transcript referred to, that is also contrary to the record in another way, where Mr O’Dwyer, directly after being offered time to look through the material, said: [33]
“Look, in the interest of moving along…”
[33]T 1-10, line 21.
It is unambiguously clear that the Adjudicator did not act as the applicant has submitted and that the applicant has freely decided to forego the opportunity which was offered to him. The responsibility for that rests with the applicant for that decision.
The transcript makes clear that the Adjudicator offered the applicant the “reasonable opportunity” referred to in section 95(1) of the Act, which provides that:
(1) The tribunal must allow a party to a proceeding a reasonable opportunity to—
(a) call or give evidence; and;
(b) examine, cross-examine and re-examine witnesses; and
(c) make submissions to the tribunal.
As Mason J (as his Honour then was) observed in Kioa v West, [34] the requirements of procedural fairness must be adjusted to the statutory framework governing the tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 311, 319-321.
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[34](1985) 159 CLR 550, 584-585.
For the reasons given, the appellant has failed to make out this ground of appeal and to show any reasonable prospects at all of doing so.
The contractual construction and consideration ground
The applicant submits that the contract was wrongly characterised as severable when it was entire and in concluding that there had not been a total failure by the respondent.[35]
[35]Appellant’s submissions [2.1].
It is submitted that the agreement was for business consulting services during the period May to December 2020, for which $3,000 would then be paid on completion.[36] It is submitted that in May 2020, the respondent stated that she was experiencing financial difficulty and required part-payment. The appellant acceded to this and paid “the sum of $1500”, of which $1,499 is sought to be recovered, upon three invoices dated 31 May, 26 June and 26 July.[37]
[36]Ibid [2.2].
[37]Ibid [2.4].
The submission that there was an entire contract with payment on completion is contradicted by the transcript. When asked by the Adjudicator when the $3,000 was to be paid, Mr O’Dwyer replied: [38]
“It was to be paid on consecutive invoices, which I’ve got copies of those invoices.”
[38]T 1-4, lines 20-24.
Subsequently, the question was repeated and the reply by Mr O’Dwyer was: [39]
“It was to be paid over six different invoices, and three of which were paid, three which were not.”
[39]T 1-4, lines 37-40.
The transcript supports the conclusion that when each of the three invoices were tendered, and when the applicant paid them, the contract between the parties was then in the form indicated by their conduct. There is no discrete form of contract in existence that would support a different conclusion. The applicant stated: [40]
“it was a combination of verbal, as well as written through emails, as well as and supported by invoices from the respondent to myself.”
[40]T 1-4, lines 8-12.
The applicant refers to the joint judgment of Isaacs and Rich JJ in In Re The Continental C. and G. Rubber Company Proprietary Limited,[41] where there was, their Honours found, an entire contract. In that case, progress payments were made under clause 22 of the contract. The present case is distinguished as there was instead an agreement, at the relevant times, for payment of the three invoices for the services they represented. That this was accepted by the parties is clear from their conduct in rendering, and paying, the three invoices. Whatever the original contract, at all relevant times it was then in the form of an agreement to pay on the invoices rendered for the work they represented. This is clear from the conduct of the parties. There was no longer an agreement to pay a lump sum for specific deliverables. The contract had been re-made into what the conduct of the parties demonstrated and which was severable in nature.
[41](1919) 27 CLR 194, 203.
The applicant’s submission of not being aware of business consulting services being provided in May, June and July 2020 is contradicted by the conduct admitted to have occurred, namely paying the invoices. This occurred three times.
The evidence makes it impossible to accept this second submission made on behalf of the applicant. Several invoices were paid at the relevant times, making it impossible to conclude that there was a complete failure of consideration. Mr O’Dwyer described what had been delivered.[42]
[42]T 1-5, line 5 – 1-7, line 29.
The applicant submits that there is no evidence that the respondent has provided any business consulting services to the applicant, who paid in advance.[43] The transcript contradicts this.[44]
[43]Appellant’s submissions [2.13].
[44]T 1-5, line 5 – 1-7, line 29.
The quantum meruit ground
This is submitted to have simply been “confected” by the Adjudicator.[45] This refers to the Adjudicator using the term “quantum meruit” which he defined as “pay them what they are worth.”[46]
[45]Appellant’s submissions [3.2].
[46]T 1-16, line 38.
It is submitted that the respondent did not make a claim based on quantum meruit.[47]
It is submitted that the Adjudicator inverted the correct approach to quantum meruit and, in doing so went into error as the principle operates where an innocent party seeks to obtain restitution for services provided where otherwise there would be an unjust enrichment.[48]
[47]Appellant’s submissions [3.2]
[48]Ibid [3.1] – [3.10].
While the use of the technical “quantum meruit” conjures up all of the learning developed in regard to it, which the submissions for the appellant point to, a complete reading of the record demonstrates that it was an expression used by the Adjudicator, not in its technical sense, but in that which was explained in the Adjudicator’s next words “pay them what they are worth.”[49] Consideration of the whole of the record makes clear that what was being done was acting in a way so as to make orders that would be fair and equitable to the parties so as to resolve the dispute.[50] The use of the technical term does not convert the QCAT proceedings under its constituting Act to proceedings as they might have been conducted if brought elsewhere. It is also noted that section 28 of the Act, already referred to, requires the tribunal to act according to the substantial merits of the case.[51] It must also act with as little formality and technicality as proper consideration of the matter permits.[52]
[49]T 1-16, line 38.
[50]QCAT Act (n 27) s 13(1).
[51]Ibid s 28(1).
[52]Ibid s 28(3)(d).
The tribunal must not be distracted from its statutory purpose by what is effectively a “red herring” created by the infelicity in the use of a technical term, although the words used directly after it do demonstrate that the approach actually being taken was in accordance with the Act.
A consideration of the whole of the material does not disclose any sufficient basis upon which the appeal could be allowed. It has no merit and no prospects of success whatsoever.
The respondent’s submissions
The written submissions on behalf of the respondent are categorised under the three headings which have already been referred to. They will be considered in turn. It is necessary to have some reference to them, notwithstanding the unconvincing submissions for the appellant, since they cover some different ground.
The limitation issue
It is submitted that the duration of the delay, lack of a satisfactory application for it, lack of merit and prejudice to the respondent indicate that there would be no justice in giving leave to appeal.
The applicant has not made any submissions in relation to any aspect other than the merits of its appeal, a very important consideration in deciding whether to grant leave.
Due to the absence of such submissions, the tribunal is disinclined to conclude findings adverse to the applicant on aspects it has not addressed, however inadvisedly. This is in circumstances where the issue was raised after the applicant’s submissions were provided.
The tribunal is satisfied that, if leave to appeal was granted, the appeal would fail on its merits for the reasons given. It is therefore unnecessary to further consider the aspect of whether leave to appeal ought to be granted. If it is, the appeal could only be dismissed. Justice is best served by proceeding in relation to the matters not addressed by the applicant as if it had satisfactorily addressed them. The conclusion is that leave should be granted so that the merits may be determined.
The findings issue
The respondent submits that the applicant’s procedural fairness claim is faulty, referring to the parts of the transcript already considered. The contract construction and consideration is likewise addressed by reference to parts of the transcript already considered. The situation is the same concerning the failure of consideration submission. The quantum meruit submission is addressed on the basis that the transcript discloses that there was in fact no determination of a quantum meruit. Reference is made to passages of the transcript already considered in these reasons.
The conclusions urged on behalf of the respondent have already been arrived at, for the reasons given.
The costs issue
The respondent refers to section 100 of the Act, which provides that, ordinarily, the parties should bear their own costs.[53] This is a position that may be displaced “if the interests of justice require it.”[54]
[53]Ibid s 100.
[54]Ibid s 102(1).
The only costs that may be awarded are those stated in the rules.[55]
[55]Ibid s 102(2).
Section 102(3) of the Act sets out what the tribunal may have regard to:
(3) In deciding whether to award costs under subsection (1) or (2) the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g);
(b) the nature and complexity of the dispute the subject of the proceeding;
(c) the relative strengths of the claims made by each of the parties to the proceeding;
(d) for a proceeding for the review of a reviewable decision—
(i)whether the applicant was afforded natural justice by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
(e)the financial circumstances of the parties to the proceeding;
(f)anything else the tribunal considers relevant.
The respondent seeks an order for costs, submitting that it has been put to the cost of responding to a frivolous or vexatious process, lodged out of time. It is noted that the applicant has not responded to this so the tribunal is cautious about making an adverse finding in respect of it.
It is submitted that, as the Adjudicator said, there is an overlay of complexity in the case. It is the case, however, that the Adjudicator had no difficulty in dealing with it in 51 minutes, so it was not an operative impediment of any great moment.
The strength of the applicant’s claim relative to the position of the respondent is referred to. Clearly, there was an unambiguous finding in favour of the respondent who has been put to the burden of the proceedings.
The applicant was afforded natural justice and, the record shows, attempted to enable and help the Adjudicator to make a decision on the merits.
There is no useful evidence in relation to the financial positions of the parties at the present time.
It is also submitted that the respondent made an offer to resolve these proceedings. The offer was not accepted. It is submitted that it was a reasonable offer. The affidavit of Jeffrey Wayne Perkins, a solicitor, sworn on 26 November 2021 is relied on to disclose the outlays of the respondent as $3,229 in this matter. It also shows that on 23 November 2021, the respondent made a settlement offer that was rejected. On 25 November 2021, the applicant made a settlement offer, which was also rejected.
The respondent seeks costs fixed in the sum of $3,000.00 or as assessed. Section 107 of the Act requires that costs, if ordered, should be fixed,[56] if possible, and assessed if it is not possible.[57]
[56]Ibid s 107(1).
[57]Ibid s 107(2).
It is submitted that, if the tribunal is not minded to make an order for costs, the appeal be dismissed.
In regard to the matter of costs, the tribunal finds that this is not a case where there was any unnecessary disadvantaging of one party by the other, there was no particular complexity and the respondent’s claim was stronger than that of the applicant. The applicant was afforded natural justice and did genuinely attempt to enable the decision-maker to make the decision on the merits.[58] The tribunal also considers it relevant that the applicant has not addressed all aspects of the respondent’s submissions and is not prepared to draw any adverse conclusions against the applicant in such matters as, for example, whether there was failure to comply with any time requirement.
[58]Ibid s 102(3)(d)(ii).
The tribunal finds that the interests of justice do not require it to make a costs order in the circumstances of this case. In accordance with section 100 of the Act, each party must bear their own costs. There is no need for an order about costs. The appellant’s claim for costs of $477.40 is unsuccessful due to the lack of merits of its appeal.
In this appeal, neither party sought an order restricting publication.
ORDERS
1. Leave to appeal is granted
2. The appeal is dismissed
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