Maher v 100 Monkeys Wholefoods & Organics
[2013] QCATA 188
•24 June 2013
| CITATION: | Maher v 100 Monkeys Wholefoods & Organics [2013] QCATA 188 |
| PARTIES: | Mr Jon Maher Advanced Business Marketing Pty Ltd ABM Media Pty Ltd (Applicants/Appellants) |
| V | |
| 100 Monkeys Wholefoods & Organics (Respondents) |
| APPLICATION NUMBER: | APL081 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 24 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 29 June 2012 is set aside. 4. 100 Monkeys Wholefoods & Organics’ application is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where two separate agreements – where claim against director and companies involved in both agreements – whether grounds for leave to appeal Dearman v Dearman (1908) 7 CLR 549 Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
In December 2009, Ms Van Rooye, then trading under the registered business name 100 Monkeys Wholefoods & Organics, engaged Advanced Business Marketing Pty Ltd to sell her business for $100,000 plus stock at valuation. She signed a separate advertising agreement with ABM Media Pty Ltd. Mr Maher is a director of both companies.
Ms Van Rooye paid ABM $6,578 for an advertising package. The package is “as specified by the client in Items 2 schedule 1.” Items 2 schedule 1 simply lists the price, not details of what Ms Van Rooye was getting for that price.
In April 2011, Ms Van Rooye asked Advanced Business Marketing to change the advertising, including a reduction in price to $90,000 plus SAV. In November 2011, Ms Van Rooye asked Advanced Business Marketing to reduce the price to $60,000 plus SAV. The business did not sell. Ms Van Rooye says that Advanced Business Marketing did not action her requests to reduce the price for over 6 months and this is why the business did not sell. She applied for a refund of the money she paid ABM. The tribunal ordered that Mr Maher, Advanced Business Marketing and ABM were all liable to refund Ms Van Rooye.
Mr Maher, Advanced Business Marketing and ABM want to appeal the tribunal’s decision. They say that Mr Maher and Advanced Business Marketing are not parties to any contract with Ms Van Rooye. They say that the only agreement relevant to the proceedings is the one between Ms Van Rooye and ABM. They say that the advertising agreement does not provide a guarantee of performance and specifically states that there will be no refunds of the advertising package. They say that Mr Maher was not served personally. They say that the companies never received a copy of Ms Van Rooye’s claim.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Advanced Business Marketing is a party to an agreement with Ms Van Rooye. It is the party that agreed to sell Ms Van Rooye’s business. Interestingly, the commission payable to Advanced Business Marketing for the sale of the business is “nil”. But Advanced Business Marketing is right in its submission that the contract between Ms Van Rooye and ABM is the only relevant contract.
Ms Van Rooye says that Mr Maher and Advanced Business Marketing are parties to the advertising agreement because of clause 8, which states:
The Advertising Company discloses and the Client acknowledges that he or she has been advised that the same person is both the director of the Advertising Company as well as Advanced Business Marketing Pty Ltd (The Real Estate Agent).
Clause 8 of the advertising agreement does not make either Mr Maher or Advanced Business Marketing parties to that contract. It alerts Ms Van Rooye to the fact that these parties have an interest in seeing her business sold, so that she cannot later suggest that they received any secret commission. I accept that Mr Maher and Advanced Business Marketing are not parties to the advertising agreement.
The Magistrates Court judgment is based on the tribunal’s decision. If the tribunal is wrong, then the Magistrates Court decision is also wrong.
A director is only liable for the acts of a company in limited cases. This is not one of those cases. Mr Maher is not personally liable for the acts of ABM.
Ms Van Rooye does not hold ABM responsible for failing to sell her business. Her complaint is that the selling price was overstated by 40% for over 6 months and this was a failure to render services with due care and skill under s 60 of the Australian Consumer Law.
Section 60 imposes an obligation to render services with due care and skill. The remedy for a breach of that guarantee is only available to a consumer.[5] A person is taken to have acquired services as a “consumer”[6] if the services were of a kind ordinarily acquired for personal, domestic or household use. Ms Van Rooye did not acquire ABM’s advertising services for personal, domestic or household use. She has no remedy under the Australian Consumer Law.
[5] Australian Consumer Law Part 5-4, Division 1 Subdivision B.
[6] Australian Consumer Law s3(3)(b).
Ms Van Rooye had the benefit of almost two years advertising. She has no complaint about the advertising from December 2009 to April 2011. She has received value for her payment and the learned Member was in error in finding that ABM did not conduct its part of the bargain with due skill and care. The learned Member was also in error in finding Advanced Business Marketing and Mr Maher were liable to Ms Van Rooye. Leave to appeal is granted and the appeal allowed. The tribunal’s decision of 29 June 2012 is set aside. Ms Van Rooye’s application is dismissed.
0