Rosengren v Brisbane Art Workshops

[2011] QCAT 503

CITATION: Rosengren v Brisbane Art Workshops [2011] QCAT 503

PARTIES:	Linda Rosengren (Applicant)
v
Brisbane Art Workshops ABN83143669087 (Respondent)

APPLICATION NUMBER:   MCDO760-11

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 25 August 2011

HEARD AT: Brisbane

DECISION OF: Michael Howe, Adjudicator

DELIVERED ON: 20 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.     The Respondent pay to the Applicant the sum of $912.87 representing claim and costs.

CATCHWORDS:  Minor civil dispute – consumer dispute – breach of contract – identity of supplier of art course essential term of the contract

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Linda Rosengren
RESPONDENT:	Krisstie Byrnne

REASONS FOR DECISION

1. Ms Rosengren seeks recovery of the sum of $861.87 from Ms Brynne, who trades as Brisbane Art Workshops.  The money was paid as the fee for an art course which Ms Rosengren didn’t attend.

2. The art course was to be conducted over 16 weeks at Ms Brynne’s art school, Brisbane Art Workshops, and was advertised to be taught by one Terry Bouton commencing February 2011.

3. On 10 February 2011 Ms Brynne advised enrolled students, including Ms Rosengren, that Terry Bouton was unable to teach the course.  Ms Brynne told the prospective students that in lieu she would teach the course herself.

4. Ms Rosengren had already completed an art course taught by Ms Brynne however, and suggested a partial refund of her course fees be paid and that she take part in only a portion of the repeat course.  Ms Brynne took issue with this proposed compromise.  Emails and telephone calls were exchanged.  Ms Rosengren withdrew her proposal to compromise and now demands refund of the course fees in full.

5. Ms Brynne says the identity of the course teacher was irrelevant.  Ms Rosengren says it was vital.

Art Course

1. The art course involved is teaching Alla Prima Style.  It is not a beginner’s introduction course.  Certainly Ms Brynne, and too Ms Rosengren, appear to be far too accomplished to be called anything less than artists.  Alla prima involves completion of the painting in one sitting without waiting for the paint layers to fully dry.  The course in dispute is described in a number of documents including the invoice generated by Brisbane Art Workshops and directed to Ms Rosengren dated 27 November 2011 as “Terry Bouten: Alla Prima Still Life and Portraiture.”

2. Other course descriptions of Brisbane Art Workshops do not have the artist teacher as a primary focus of the description of the course. 

3. Having heard from both parties and perused the documentary evidence tendered by both, I accept Ms Rosengren’s assertion that the identity of the art teacher for the course concerned, Terry Bouten, was an essential element in her decision to enrol in that course.  Further I find that the identity of that artist was used by Ms Brynne to attract students to that particular alla prima course.

4. In large part, I also conclude, the dispute between the parties was in no small measure a product of injury to artistic sensibilities, in that Ms Brynne was offended by Ms Rosengren’s decision not to retake the alla prima course with her in lieu of Terry Bouten.

5. I find that the identity of the teacher of the second alla prima course was an essential aspect and therefore condition of the agreement between the parties.  Perhaps in other disciplines and avenues of personal development the particular identity of the teacher is not important.  I cannot conclude that here, given the subjective nature of portraiture art skills.

Refund Policy

1. Ms Brynne points to the refund policy of Brisbane Art Workshops which is available on the business website, which she claims, defeats Ms Rosengren’s claim.  The policy at item 7 states “Should a term class teacher be absent from class for any reason, then a suitable replacement teacher will be appointed during their absence.”  Without considering whether Terry Bouten should be identified as a term class teacher, I cannot accept that where the identity of the teacher of the course is an essential element of the course, as I have found, the absence of that person for the entire course falls within the intention of the subject provision.

2. Additionally Ms Brynne has sought to rely on clause 16 of the refund policy which states “A refund or credit will not be granted simply because you change your mind.”  That clause has no application here where an essential term of the agreement between the parties, that of the identity of the course teacher, could not be met by Brisbane Art Workshops.

Conclusion

1. An essential condition of the agreement between the parties not having been met, the contract failed and Ms Rosengren is entitled to her money back.  Ms Brynne’s counterclaim must therefore fail.

Orders

1. Ms Brynne should pay Ms Rosengren the sum of $912.87 for her claim and the filing fee herein.