Pisa v Rountree
[2011] QCATA 64
•31 March 2011
| CITATION: | Pisa v Rountree [2011] QCATA 064 |
| PARTIES: | Mr Lad Pisa (Applicant/Appellant) |
| v | |
| Ms Miranda Christine Rountree (Respondent) |
APPLICATION NUMBER: APL017-11
| MATTER TYPE: | Appeals |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, Senior Member |
DELIVERED ON: 31 March 2011
DELIVERED AT: Brisbane
ORDERS MADE: 1. Leave to appeal granted.
2.Appeal allowed.
3.The application for a minor civil dispute filed 30 June 2010 is dismissed.
| CATCHWORDS: | Minor Civil Dispute – definition of minor civil dispute – whether contract made entitling respondent to claim cancellation fee – whether new fees for piano lessons accepted by the applicant – where error established Queensland Civil and Administrative Tribunal Act 2009, s 142(3) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Prestia v Aknar (1996) 40 NFWLR 165 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Ms Rountree is a music teacher. In the latter part of 2009 she commenced teaching Julia Pisa to play the piano. The Pisas entered into an agreement with Ms Rountree that she would teach Julia and they would pay her $30 per half hour lesson.
Ms Rountree’s contends that it was a term of the agreement that if a pupil wishes to discontinue lessons notice is required to be given. The invoice which issued on 17 October 2009 clearly states at the bottom of the document that:
“Half a term notice is required for termination of lessons.”
Julia continued to have lessons through to June 2010 when Ms Rountree sought to increase the cost of the lessons from $30.00 to $35.00. Mr Pisa attended the first scheduled lesson for the second half of the year on 4 June 2010 when he was advised by Ms Rountree that the fees were going up to $35.00 per lesson. Without going into detail, there was some arguments/discussion about this fee increase but clearly, the evidence establishes and, it is not disputed by Ms Rountree, that Mr Pisa did not agree with the price increase. In fact, on 7 June 2010 he wrote to Ms Rountree telling her that he would not pay the extra and therefore, Julia would no longer be attending lessons.
In plain language he did not accept Ms Rountree’s offer. It is uncertain whether that letter, sent by fax and mail, was in response to a note from Ms Rountree also dated 7 June 2010 wherein she sent an account for $170.00 being an “account for discontinuation with no half term notice given”. The amount was based on lessons at $35.00. In any event the Pisas did not pay the account.
There is thereafter, lengthy correspondence from the Pisas to Ms Rountree addressing numerous issues that had arisen between them since Julia commenced lessons.
Ms Rountree commenced a proceeding in the Tribunal to recover the amount outstanding and on 23 November 2010 a Tribunal Member ordered that the applicant pay to the respondent the sum of $195.00 within 14 days, being the cancellation fee at $35 per lesson.
The claim is what could be regarded as liquidated damages or even a penalty pursuant to the original agreement reached between Ms Rountree and the Pisas for Ms Rountree to provide piano lessons to the Pisa’s daughter, Julia. However it is unnecessary to decide this for the purposes of this appeal.
Mr Pisa then filed an application for leave to appeal or appeal on 7 January 2011. Leave is necessary as this is an appeal from a minor civil dispute proceeding.[1] 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?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act section 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[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.
Mr Pisa’s grounds for appeal are, inter alia, that firstly, he did not get a fair hearing in that Ms Rountree kept interrupting and distracting the Tribunal Member and he did not have the opportunity to put his case. Secondly, he says he never agreed to the price increase to $35.00 and therefore, there was no contract between himself and Ms Rountree. Thirdly, if there was no contract between them, the liquidated damages or penalty (if is that) of half the term fees was not payable.
It seems, and having regard to the transcript of evidence his complaints about the hearing have some basis. It is true that Ms Rountree did dominate the proceeding, and every time Mr Pisa sought to make any submission, or give evidence, he was interrupted. The learned Tribunal Member used his best endeavours to contain Ms Rountree but she did not seem to heed his intervention. However it is unnecessary to decide this point having regard to the findings below to dispose of this application.
More importantly, the legal question for determination on this appeal is whether or not a contract existed pursuant to which Ms Rountree was entitled to claim the cancellation fees. The evidence, even from Ms Rountree in her handwritten statement attached to the minor civil dispute application indicates that there was no such agreement. Mr Pisa complained about the increase and, in response to that she says:
“In the end I said that if the extra $5.00 was such a concern I would leave it at the previous amount.”
There was no response, it seems to that offer and subsequent to Mr Pisa indicating that he did not intend to return, Ms Rountree then charged for the full $35.00 for the lesson.
It is also apparent from her statement in support of the application, that she was of the opinion that as the Music Teachers Association of Queensland said she was entitled to charge fees for half of the term on the pupil discontinuing without proper notice, that was the contractual term that bound Mr Pisa. There is no suggestion, in any of the evidence put before the Tribunal Member, that Mr Pisa agreed to such a term when Ms Rountree increased the lesson fee without Mr Pisa’s agreement that he would pay the increase.
Unfortunately, the reasons given by the learned Tribunal Member, or lack thereof do not assist in understanding how he arrived at the decision given the disputation about whether there was a binding contract.
This case involves some basic contractual concepts. That is, for there to be an agreement between the parties, there has to be an offer from one party to the other and an acceptance of that offer. Here, on 4 June 2010 Ms Rountree offered to teach Julia piano lessons at a cost of $35.00 per hour. That offer was not accepted by Mr Pisa and therefore, no contract existed between them upon which Ms Rountree could properly claim the half term fees for discontinuation.
One other point emerges in this proceeding. That is, whether this dispute does fall within the definition of a minor civil dispute in the Queensland Civil and Administrative Tribunal Act 2009. A minor civil dispute is relevantly defined as:
(1) …
(b) A claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is:-
(i) The payment of money of a value not more than the prescribed amount.
A trader is also described in schedule 3 however a person is not a trader in relation to services if in supplying those services:
(a) The person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
This definition was considered by the Deputy President in Early Property Group Pty Ltd t/a Early Group Valuers Cavallaro[6] where she said that if the definition of trader was to have any application, it must operate to exclude professionals whose disciplines are not ordinarily regarded as within the field of trade or commerce.[7] Reliance was placed on the meaning of profession in Prestia v Aknar[8]:
“This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually thought not inevitably for reward and require professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of cooperation.”
[6] [2010] QCATA 65.
[7] Paragraph 17.
[8] (1996) 40 NFWLR 165 at pages 22-23.
That formulation is of assistance, and led the Deputy President to conclude that a valuer providing valuation services was not a “trader” within the definition. Although it is unnecessary for me to decide the point on this application, I note from Ms Rountree’s documentation that she is highly qualified with honours in a Bachelor of Music, Bachelor of Education, Diploma in Music, Associate of Music Australia, as well as a Licentiate of Music Australia. To obtain these qualifications, one not only has to be highly skilled in the ability to play a musical instrument, here the piano, it also requires an extensive knowledge of musical theory.
Therefore there is some considerable doubt as to whether Ms Rountree would fall within the definition of a “trader” and as a consequence, QCAT would not have jurisdiction to decide this dispute.
Having come to the conclusion that the learned Tribunal Member did make an error of law in concluding that a contract existed between the parties leave to appeal should be granted. Having decided this appeal on a question of law, and given the sums involved I propose to set aside the decision and substitute this Tribunal’s own decision that the appeal be allowed, and that the minor civil dispute proceeding be dismissed.[9]
[9] Section 146(b).
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