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

1. 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.

1. 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.”

1. 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.

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

1. 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.

1. 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?

1. The hotel argues that:

a)    The booking agreement embodies the total understanding between the parties.

b)    Because clause 2 is specific about the consequences of cancellation within 28 days, the learned Adjudicator should have inferred that cancellation outside the 28 days attracted no penalty.

c)    A reasonable person would have read clause 2 in that way.

d)    The hotel was entitled to cancel the bookings without penalty outside the 28 day time frame of clause 2.

1. The interpretation of clause 2 is something that exercised the learned Adjudicator’s mind.[1]  Ultimately, he determined that while clause 2 fixed the quantum of damages for cancellation within 28 days of a gig, it did not embody the total understanding between the parties in the event of cancellation.

   [1]            Transcript page 12, lines 7-13, 21-24; page 18, lines 15-25.

1. Vertigo has referred the appeals tribunal to section 3(2) of the Independent Contractors Act 2006 (Cth). There is no dispute that the tribunal should apply the principles of the Common Law in determining this dispute. Otherwise, administration of this Act lies with the Federal Court or the Federal Magistrates Court[2] and does not assist the appeal tribunal’s deliberations.

   [2]            Section 4, definitions.

1. Even though there are six separate booking agreements, they were all signed on the same date; 12 March 2010.  Vertigo asserts that the parties entered into one agreement evidenced by six different pieces of paper because the hotel wanted to secure Vertigo’s services from 12 March to the end of the year.  It was an inelegant way to record the transaction but I accept that is what the parties intended.  Within that framework, the learned Adjudicator’s interpretation of whether clause 2 embodies the total understanding of the parties in relation to cancellation is appropriate.  Both parties were seeking certainty.  Both parties were at risk of loss if the contract did not continue until the end of the year.  Vertigo does not argue that the contract’s silence about the hotel’s rights to compensation means that it had no rights; similarly, the contract’s silence about Vertigo’s rights outside the 28 day period referred to in clause 2 cannot mean that none existed.

1. I do not read the learned Adjudicator’s decision as requiring justification for the cancellation although he did find that the purported justification was without foundation.  A justified cancellation may have gone to the learned Adjudicator’s determination of whether Vertigo was entitled to damages for cancellation outside the 28 day period and this may have operated in favour of the hotel.  It is, however, an issue I am not required to determine.

1. For the reasons I have already given, the learned Adjudicator’s consideration of dates outside the 28 day period was not an error that justifies leave to appeal being granted.

1. Once the learned Adjudicator determined that Vertigo did have a right to damages for gigs outside the 28 day period, he was obliged to consider whether Vertigo had taken steps to mitigate that damage.  That exercise required a consideration of what steps it had taken to secure other gigs.  It was not an irrelevant consideration.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted.  Leave to appeal should be refused.