Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd - [2021] QCAT 340

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd [2021] QCAT 340

PARTIES: PROPERTY MANAGEMENT VIRTUAL ASSISTANT PTY LTD

(applicant)

v

DC ELECTRICAL PTY LTD

(respondent)

APPLICATION NO:

MCDO000444-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

28 September 2021

HEARING DATE:

23 September 2021

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

1. The respondent’s name is amended to “DC Electrical Pty Ltd”.

2. The respondent is to pay the applicant the sum of $1,742.40 by 31 October 2021.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – claim for debt or liquidated demand of money – whether terms sent by a link were incorporated into a contract

Competition and Consumer Act 2010 (Cth), Sch 2

Fair Trading Act 1999 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 13, s 102, Sch 3

ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204

ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
ACCC v Servcorp Limited [2018] FCA 1044
Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379
Causer v Browne [1952] VLR 1
Hawkins v Clayton (1988) 164 CLR 539
Interfoto Pictures v Stiletto Visual Programs (1989) QB 433
Marcel v Cactus Towing Pty Ltd [2016] QCAT 532
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is the case about?

The applicant (“PMVA”) provides a service for the outsourcing, running and management of real estate property management businesses. The respondent runs a large team of electricians servicing, among others, the rental property maintenance industry.
From 11 December 2018 the respondent engaged PMVA to provide virtual assistance for the respondent’s business for an initial term of twelve months, and on an ongoing basis after that initial term expired. The parties are in dispute as to what the terms of the ongoing engagement were, but, in any event, on 31 March 2020, the respondent sought to terminate the arrangement on the giving of thirty days’ notice.
By an application for a minor civil dispute – minor debt filed 20 April 2020, the applicant seeks an order that the respondent pay the applicant the sum of $24,768, being the early termination fee provided for in clause 15.1 of the contract relied upon by the applicant.
In its response filed 10 May 2020, the respondent club seeks that the application be dismissed, among other reasons, because:
(a)the contract did not include an early termination fee clause; or
(b)if the contract did include that term, the term is an unfair term and unenforceable.
As a minor administrative matter, I amend the respondent’s name to “DC Electrical Pty Ltd” as the “Pty Ltd” was omitted from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Property Management Virtual Assistant Pty Ltd v DC Electrica... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCAT 340
Decision Date

CaseChat Overview and Summary

Property Management Virtual Assistant Pty Ltd (PMVA) filed an application for a minor civil dispute against DC Electrical Pty Ltd for $24,768.00 being an early termination fee under clause 15.1 of the contract. DC Electrical Pty Ltd responded that the contract did not contain an early termination fee clause or, if it did, the term was unfair and unenforceable. The dispute hinged on whether the terms of a Business Services Agreement (BSA) were incorporated into the contract and, if so, whether they were fair terms. The Tribunal found that PMVA had failed to bring the BSA terms to the respondent’s attention in a manner sufficient to be considered reasonable steps and therefore the BSA terms did not form part of the contract. The Tribunal also found that the BSA terms were not necessary to imply terms into the contract because the Schedule 1 could stand alone as it clearly provided for the price, the term, the payment methods, the services, and the required and minimum hours for service provision. The Tribunal further found that PMVA had failed to provide evidence to establish that the BSA produced to the Tribunal was the same version sent to the respondent on 8 November 2018. As the initial term did not renew and the respondent was able to terminate PMVA’s services on reasonable notice, the Tribunal ordered that DC Electrical Pty Ltd pay PMVA $1,742.40. The Tribunal declined to exercise its discretion to award costs in the current circumstances where the applicant had been, for the most part, unsuccessful in its claim.

Orders