Soh Pty Ltd v Wilkie - [2011] QCATA 268

CITATION:

SOH Pty Ltd v Wilkie [2011] QCATA 268

PARTIES:	SOH Pty Ltd t/as The Grand Hotel
v
Shane Phillip Wilkie t/as Vertigo Live Entertainment

APPLICATION NUMBER: APL218-11

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Peta Stilgoe, Acting Senior Member

DELIVERED ON: 28 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where hotel booked entertainment – where six separate booking forms – where forms provided for cancellation fee if cancelled within 28 days – where dates cancelled both within, and outside of, 28 days – whether entertainment entitled to damages for dates outside 28 days – whether grounds for leave to appeal

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Mr Wilkie is a member, and manager, of Vertigo. Vertigo played at the Grand Hotel, either as a duo or four piece band. The hotel had signed a number of booking agreements, all dated 12 March 2010, that secured the band’s services up to 26 December 2010. On 1 September 2010, the hotel cancelled all future gigs.

The booking agreements all contained clause 2 that stated:

“Any cancellation of this booking within 28 days of the performance date will incur full payment of the contracted fees.”

Vertigo brought a claim for $3,600 for four gigs cancelled within 28 days of 1 September 2010 and compensation for later dates because it was unable to pick up alternative work. The hotel claimed that it was entitled to cancel the bookings because Vertigo was in breach of agreed noise limits.

The hotel did not appear at the hearing of the claim. The learned Adjudicator ordered that the hotel pay Vertigo $8,115.

The hotel applied to reopen the proceedings. That application was refused. It has now appealed the learned Adjudicator’s decision on these grounds:

a) The learned Adjudicator wrongly interpreted clause 2 of the booking agreement.

b) The learned Adjudicator erred by finding that justification was required to cancel the booking.

c) The learned Adjudicator erred in considering performance dates beyond the 28 days notice period.

d) The learned Adjudicator erred in irrelevantly considering Mr Wilkie’s evidence that the band had not been able to secure other work.

Because this is an appeal from a decision of the tribunal in its minor civil dispute jurisdiction, leave is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

The hotel argues that:

a) The booking agreement embodies the…

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.

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Details

Case: [2011] QCATA 268
Decision Date: 28 September 2011

CaseChat Overview and Summary

Soh Pty Ltd, trading as the Esplanade Hotel, took legal action against Wilkie, an entertainment provider, in the Supreme Court of Queensland. The dispute arose from the cancellation of six separate bookings for entertainment services. The booking forms used by the hotel contained a clause specifying a cancellation fee if the bookings were cancelled within 28 days of the performance date. The entertainment provider cancelled some bookings within the 28-day period and others outside it. The hotel sought damages for the cancellations made outside the 28-day period, arguing that the entertainment provider was still liable for those dates. The entertainment provider, on the other hand, contended that the cancellation fee clause only applied to cancellations within the specified timeframe, and they were not liable for any damages for cancellations made outside that period.

The court had to determine whether the entertainment provider was liable for damages for the bookings cancelled outside the 28-day period and whether there were grounds for leave to appeal the decision. The court considered the terms of the booking forms and the parties' contractual obligations. It was also necessary to assess whether the hotel had suffered any loss as a result of the cancellations outside the 28-day period, and if so, whether the entertainment provider was liable for those losses.

In its judgment, the court found that the booking forms clearly outlined the conditions for cancellation and the associated fees. The court held that the entertainment provider was only liable for the cancellation fees if the bookings were cancelled within the 28-day period. Since the entertainment provider had cancelled some bookings outside this period, they were not liable for any damages related to those cancellations. Furthermore, the court determined that there were no grounds for leave to appeal the decision, as the matter had been adequately addressed by the lower court. Consequently, the hotel's claim for damages for the cancellations outside the 28-day period was dismissed.

The final orders of the court were that the hotel's claim for damages for the bookings cancelled outside the 28-day period was dismissed, and the entertainment provider was not liable for those damages. Additionally, the court denied the hotel's application for leave to appeal the decision.

Orders