Stephens v Australasian Beauty Therapy Academy Pty Ltd (Civil Dispute)
[2015] ACAT 16
•13 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
STEPHENS v AUSTRALASIAN BEAUTY THERAPY ACADEMY PTY LTD (Civil Dispute) [2015] ACAT 16
XD14/703
Catchwords: CIVIL DISPUTE - Contract for Certificate IV in Beauty Therapy – Procedures manual - other courses added by applicant - multiple agreements to pay tuition fees by instalments – failure to make instalment payments in accordance with agreements – whether procedures varied by express or implied agreement -request to undertake international examinations midyear instead at end of calendar year – payment of international examination fee requested before confirming international examination booking – failure to pay – suspension – non communication – termination – damages - validity of suspension – estoppel - breach or repudiation essential term
Cases cited:Arrowcrest Group Pty Ltd v Ford Motor Company of Australia Ltd [2002] FCA 1450
Baltic Shipping Company v Dillon [1993] HCA 4
Hartley v Hymans [1920] 3 KB 475
Khoury v Government Insurance Office of NSW [1984] HCA 55
Klewer v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2005] NSWSC at 116
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Louinder v Leis (1982) 149 CLR 509
Progressive Mailing House Pty Ltd v Tabali (1985) 157 CLR 17,
Target Holdings Ltd v Redferns [1996] 1 AC 421
Tele2 International Card Company SA and Others v Post Office Limited [2009] EWCA Civ 9
Texts
Papers cited: Contract Law Third Edition Willmott Christensen Butler Dixon (3rd Ed)
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 13 February 2015
Date of Reasons for Decision: 13 February 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 14/703
BETWEEN: CHANTAL THERESE STEPHENS
Applicant
AND:AUSTRALASIAN BEAUTY THERAPY ACADEMY PTY LTD
Respondent
TRIBUNAL: Ms E. Symons – Presidential Member
DATE:13 February 2015
ORDER
1.The applicant’s claim is dismissed.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
Introduction
On 15 May 2014, Chantal Stephens, the applicant (the applicant) lodged with the ACT Civil and Administrative Tribunal (the tribunal) an application against the Australian Beauty Therapy Academy Pty Ltd, the respondent (the respondent), claiming damages as the result of the respondent being in breach of an agreement between the parties and/ or the respondent breaching that agreement. Alternatively, the applicant claimed damages on the basis that the respondent had failed to deliver services valued at $13,341 and refused to provide such services notwithstanding being paid for them.[1] The applicant waived so much of her claim that exceeded the $10,000 jurisdictional limit of the Tribunal.
[1] Civil Dispute Application , Details of Claim at paragraphs 29 and 30
The respondent filed a response on 18 June 2014 disputing the applicant’s claim. The respondent stated at paragraph 60 of the response:
… the respondent:
a. denies the applicant has suffered any loss or damage; and
b. submits that the applicant has in fact received the full benefit of the 22 core units which the applicant has completed but has failed to pay for in full.
The hearing
The matter was heard on 5 November 2014. Mr Davis, solicitor, from Clayton Utz, Solicitors, appeared for the applicant. Mr Meagher, solicitor, from Bradley Allen Love, Lawyers, appeared for the respondent.
The applicant gave evidence and was cross examined. Ms Ping Gan, Director of the Respondent, gave evidence and was cross examined.
The following documents were Exhibits:
For the applicant -
A1:emails between the applicant and the respondent on 2 February 2011; on 23 February 2011 and 24 February 2011 and on 6 April 2011.
A2:emails between the applicant and the respondent dated 23 January 2011 and 23 January 2011.
A3:emails between the applicant and Chris - Elleebana Total Beauty Care dated 17 August 2011 and 19 August 2011.
For the respondent-
R1:emails between Ping Gan and Rachel Moran - Itecworld dated 30 March 2011, 2 May 2011, 7 May 2011, 9 May 2011 and 17 May 2011.
R2:Temporary Suspension letter from the respondent to the applicant dated 17 May 2011.
R3:Expulsion letter from the respondent to the applicant dated 23 December 2011.
At the end of the hearing the Tribunal made directions for the filing of each party’s written submissions and reserved the decision.
Agreed Facts
The solicitors filed a Statement of Agreed Facts and Evidence with the tribunal on 10 October 2014. While this is a lengthy document, the Tribunal is satisfied that the Agreed Facts should be reproduced in full given the ambit of the applicant’s claim. They are:
(1)On 9 July 2010 Chantal Stephens (Ms Stephens) commenced study at Australasian Beauty Therapy Academy (ABTA) by enrolling in a Certificate IV in Beauty Therapy (course code 4BT10) (documents 1 & 2). Total course fees were $7,500 for all theory and practical training and assessments. Course administration fee of $500 was paid by Ms Stephens on 9 July 2010.
(2)At the time Ms Stephens’ enrolment, ABTA had a Policies and Procedures manual version 3.0 last updated 11 May 2010 (document 3).
(3)On 11 July 2010 Ms Stephens signed a ‘Student Induction Checklist’ (document 4).
(4)On 11 July 2010 Ms Stephens paid the student kit fee of $500. On this day, Ms Stephens entered into a Tuition Fee Schedule Agreement (TFSA) with ABTA for $7,000 of remaining tuition fees (document 5). The TFSA provided for periodic payments of the tuition fee rather than a single payment, with due dates for each instalment payment.
(5)On 1 August 2010 Ms Stephens amended her enrolment to a Certificate IV in Beauty Therapy; Certificate III in Nail Therapies; and ABTA Spa Course (course code remains 4BT10) (document 6). She entered into a second, concurrent TFSA with ABTA for an additional amount of $3,200 (document 7). Total course fees now totaled $10,700 for all theory and practical training and assessments.
(6)On 23 August 2010 Ms Stephens made payment of $400 to ABTA for an ITEC international exam. However, this exam was never taken, but ABTA did not refund the money or credit it to her total course fees during Ms Stephens’ enrolment.
(7)On 31 October 2010 Ms Stephens amended her enrolment to be a Diploma of Advanced Beauty, Spa, Nail Therapies and International Diplomas course (Course Code DBSN10+INT10) by submitting an application for transfer (document 8). Total course fees following this variation totaled $14,100 for all theory and practical training and assessments broken down as follows:
(a) Diploma of Advanced Beauty $8,900;
(b) Spa $1,600;
(c) Nail Therapies $1,600;
(d) International Diplomas Course $2,000.
(8)On 31 October 2010 Ms Stephens entered into a new TFSA with ABTA for the $10,580 of tuition fees yet to be paid as at 31 October 2010 (document 9).
(9)ABTA issued Ms Stephens with the half-yearly Student Performance Report on 12 December 2010 for the period 12 July 2010 to 12 December 2010 (document 10). This covered both theoretical and practical examinations with an average examination result of 99% for both components.
(10)In March 2011 Ms Stephens amended her course to include Certificate II Retail Skin care and Make-up; and Certificate II in Hair Styling (Course Code DBSNM10). The Course fees now totalled $16,200 for all theory and practical training and assessments plus $1,130 international exam fee broken down as follows:
(a) As per paragraph 7 above $14,100;
(b) Cert II Make-up $ 1,600;
(c) Cert II Hair $ 500.
(11)ABTA issued Ms Stephens with the yearly Student Performance Report on the 29 March 2011 for the full year period 12 July 2010 to 29 March 2011 (document 11 & 12). This covered both theoretical and practical examinations with an average examination result of 99% for theoretical and 98% for practical components.
(12)On 2 April 2011 Ms Stephens entered into a new TFSA with ABTA for the $9,049 in course fees yet to be paid as at 2 April 2011. This required payment of the remaining fees by 25 August 2011 and included the $1,130 for the international exam fees.
(13)The 2 April 2011 TFSA failed to take into account a $500 payment made by Ms Stephens on 28 March 2011. Hence the amount outstanding should have been $500 less than stated.
(14)On 16 April 2011 ABTA verbally provided advice to Ms Stephens that email confirmation had been received from CIDESCO and ITEC that examiners could attend ABTA to adjudicate the exams, and indicative examination fees.
(15)On 18 April 2011, an email was sent from Ms Stephens to ABTA requesting written verification of the amounts for CIDESCO and ITEC international examination fees (document 14).
(16)On 19 April 2011 an email was sent from ABTA to Ms Stephens stating that the CIDESCO and ITEC Exam booking forms were currently being filled out and sent (document 15).
(17)On 30 April 2011 ABTA verbally provided information to Ms Stephens that CIDESCO and ITEC had advised that they would not be able to attend for only one candidate, the costs for doing so would be too high, and that CIDESCO would be otherwise busy with their conference.
(18)On 2 May 2011 an email was sent from Ms Stephens to ABTA requesting clarification of the CIDESCO and ITEC situation, including examinations, indicative dates and costs (document 16).
(19)On 2 May 2011 ABTA verbally provided advice to Ms Stephens on the CIDESCO and ITEC international examinations, specifically regarding a telephone conversation with CIDESCO regarding a possible exam date for only one candidate.
(20)On 4 May 2011 an email was sent from ABTA to Ms Stephens confirming examiner availability for the ITEC exam on 24 July 2011. ABTA states that the total outstanding course fees of $6,559 will need to be paid by 23 July 2011 before attending the exam. ABTA advised awaiting advice from CIDESCO (document 17).
(21)On 4 May 2011 an email was sent from Ms Stephens to ABTA outlining discussion of 2 May 2011, and seeking written clarification as to the proposed international examinations and costs (document 18).
(22)On 5 May 2011 an email was sent from Ms Stephens to ABTA seeking written clarification on the international examinations and costs. Ms Stephens confirmed her intention to sit the ITEC examination on 24 July 20011, and confirmed commitment to the required study but not to ‘additional costs’, as the ‘costs for both the international examinations have been factored into (the) total course fee which (Ms Stephens) is already paying’ (document 19).
(23)On 6 May 2011 an email was sent from ABTA to Ms Stephens, including stating that the last payment of course fees must be made before 24 July 2011 for the proposed ITEC exam and that the ABTA will call ITEC to book the exam for 24 July 2011 (document 20).
(24)On 7 May 2011 Ms Stephens verbally confirmed to ABTA that she would attend and complete the international exams.
(25)On 9 May 2011 an email was sent from ABTA to Ms Stephens setting out the requirements and all school fees and exam fees to be paid by Ms Stephens by 24 July 2011 before sitting the international exams.
(26)On 9 May 2011 an email was sent from Ms Stephens to ABTA requesting to start training, for the international component of her courses, that week or the following week (document 22).
(27)On 9 May 2011 an email was sent from ABTA to Ms Stephens confirming that Ms Stephens could start her international training on Tuesday that week (10 May 2011) or the following (17 May 2011) (document 23).
(28)On 11 May 2011 at 10.19pm an email was sent from ABTA to Ms Stephens requesting confirmation of fees and course work by 6pm on Thursday, 12 May 201 1 (sic) (document 24).
(29)On 12 May 2011 at 6.06pm an email was sent from Ms Stephens to ABTA re-confirming her intention to complete the international exam on 24 July 2011 (document 25).
(30)On 13 May 2011 a meeting was held between Ms Stephens and ABTA. The completion of required studies and the International examinations were discussed and how to progress, including timetabling arrangements and the practice partner who had been organised to assist with the exam preparations to commence two days a week from 17 May 2011. At this meeting, ABTA advised Ms Stephens that ABTA course fees would be required to be finalised by 23 July 2011, as one of the International examinations for ITEC was scheduled for 24 July 2011.
(31)Having been advised of the fees, and received confirmation that the international exams could proceed on full payment of outstanding fees by the 23 July 2011 before the ITEC examination on the 24 July 2011, Ms Stephens proposed a new TFSA, to include payment of all fees for the international examinations by the required date of 23 July 2011(document 26). The ABTA did not accept this TFSA by email of 16 May 2011 (documents 27; 28 & 29).
(32)On 16 May 2011 at 3.47am an email was sent from ABTA Ms Stephens (sic) refusing Ms Stephens’ proposed new TFSA and requiring payment of all outstanding fees, namely $6,559 (to take total to $16,200 being the total amount for the course including the international diploma, but not including the international exam fee) by 4pm on 16 May 2011 (documents 27; 28 & 29). ABTA advised that Ms Stephens was behind on TFSA dated 2 April 2011 by $1,720. However, the 2 April 2011 TFSA failed to take into account a $400 payment made by Ms Stephens on 23 August 2010 and a $500 payment made by Ms Stephens on 28 March 2011. Hence the amount outstanding should have been $900 less than stated, at $820.
(33)On 17 May 2011 a meeting was held between Ms Stephens and ABTA. At this meeting Ms Stephens verbally advised ABTA that she did not read the email until 4.45pm on 16 May 2011 and was not in the financial position to meet full payment within 7 business hours and ABTA verbally advised Ms Stephens that she was suspended from all further training, assessments and clinical hours for the Diploma course including international training and assessments.
(34)On 17 May 2011 ABTA states Ms Stephens was sent a suspension letter. Ms Stephens says she did not receive the letter. Ms Stephens accepts that the ABTA says it has sent such a letter but states that she is unable to admit that it was sent or was sent in any particular form.
(35)On 17 May 2011 an email was sent from Ms Stephens to ABTA outlining the discussion of the 13 May 2011 and the 17 May 2011 and that based on previous emails, ABTA had advised school fees to be finalised by 23 July 2011 (document 30). Ms Stephens acknowledged the cancellation by ABTA of all further Diploma and International studies and submitted a new TFSA (document 31). The 17 May 2011 TFSA proposed payment of the remaining course fees of $4,559 by 15 July 2011.
(36)On 24 May 2011 an email was sent from ABTA to Ms Stephens attaching an ABTA Statement of Account and requesting Ms Stephens advise regarding work experience arrangements (documents 32 & 33).
(37)On 29 June 2011 ABTA states that Ms Stephens was sent a letter attaching an ABTA Statement of Account and requesting that Ms Stephens submit forms regarding her enrolment and clinical practice hours (document 34). Ms Stephens says she did not receive the letter. Ms Stephens accepts that the ABTA says it has sent such a letter but states that she is unable to admit that it was sent or was sent in any particular from.
(38)On 4 July 2011 an email was sent from Ms Stephens to ABTA stating that she would make her next payment on 5 July 2011 pursuant to the 17 May 2011 TFSA.
(39)On 30 August 2011 an email was sent from ABTA to Ms Stephens attaching payment reminder for $889 (being the claimed $859 plus a $30 late payment fee) (documents 36; 37 & 38).
(40)On 23 December 2011 ABTA states it sent Ms Stephens an expulsion letter. Ms Stephens says she did not receive the letter. Ms Stephens accepts that the ABTA says it has sent such a letter but states that she is unable to admit that it was sent or was sent in any particular form.
(41)On 29 February 2012 a letter was sent to ABTA by Ms Stephens’ solicitors and between that date and 29 July 2012 discussions occurred between the parties. The matter did not resolve.
(42)On 19 December 2012 Ms Stephens lodged a non-academic complaint with the ABTA.
(43)The complaint was rejected by the ABTA on 25 January 2013 (document 40).
(44)On 22 February 2013 Ms Stephens provided ABTA with notice to appeal the decision to the Australian Council for Private Education and Training (ACPET) (document 41).
(45)On 4 April 2013 an email was sent to the ABTA requesting confirmation that the dispute had been referred to ACPET (document 42).
(46)On 10 April 2013 an email was sent from ABTA advising that ACPET no longer provide members with a dispute resolution and mediation service and advised to submit any complaints to the Australian Skills and Quality Authority (ASQA) (document 43).
(47)On 29 September 2013 Ms Stephens lodged a formal written complaint against ABTA with ASQA via the online complaint lodgement service (document 44). ASQA acknowledged receipt of complaint (document 45 & 46).
(48)On 20 February 2014 ASQA advised that it is not ASQA’s role to arbitrate between aggrieved parties or assist in relation to refunds, however that the ABTA had breached the Standards for National Vocational Education Registered Training Organisations 2012, by failing to issue Ms Stephens with a Statement of Attainment of Units of competencies completed and assessed as competent (document 47).
(49)On 2 March 2014 ABTA issued Ms Stephens with Statements of Attainment of Units of competencies by sending them to the solicitor for Ms Stephens. On 11 March 2014 the solicitor for Ms Stephens confirmed receipt of the Statements.
The Agreed Statement of Facts also included [2] a table showing the various TFSAs entered into between the parties and the payments made by the applicant and the following further agreed facts and notations under the subheading “Payment”:
[2] In Document 49
Payment
(1)Document 49 shows the various TFSA entered into between the parties and the payments made by Ms Stephens.
(2)A payment of $400 for an exam that was never taken by Ms Stephens was made to the ABTA on 23 August 2010 was not taken into account.
Note: the attachment does not include the $400 payment in the ‘payments’ column but deals with it in a separate column.
(3)On 2 April 2011 Ms Stephens submitted a new TFSA. Thte TSA of 2 April 2011 failed to take into account the $500 payment made by Ms Stephens on 28 March 2011. Between 2 April 2011 and 17 May 2011 (when Ms Stephens changed her course again), the TFSA was therefore incorrect by $900.
Note: as of 2 April 2011, Ms Stephens had made payments totalling $8,781 (not counting the $400 exam fee). The total fees due were $17,330, Fees remaining to be paid were therefore $8,549, not $9,049 as per the TFSA.
Applicant’s Claim
The applicant’s Closing Submissions[3] conveniently summarise the applicant’s claim, namely -
[3] Applicant’s Closing Submissions [1] to [5]
1. ... that the respondent was unable to rely on the applicant’s late payment of fees as the basis for her suspension as:
(a) terms of the ABTA Procedures were varied by express or implied agreement such that the late payment as against the TFSA was not a ground for suspension; or
(b) the respondent agreed that payment in full was not required until 24 July 2011 and the suspension was on the basis of a claimed anticipatory breach by the applicant where the evidence did not support that assertion; or
(c) the respondent was estopped from relying on the terms of the ABTA Procedures; or
(d) the applicant was not late in payment at the time of suspension, as the cancellation of the CIDESCO and cancellation, or intended cancellation of the ITEC international exams by the respondent meant that the amount payable by the applicant was reduced by $1,130 and hence, the payments were up to date, and in effect in credit; or
(e) terms of the ABTA Procedures did not support a suspension without notice. Paragraph 10.7 required 20 days’ notice before a suspension, which was not provided and hence the suspension notice was invalid.
2. Although the applicant raises a number of causes of action, all arise out of the same conduct[4].
[4] See, for example, Hartley v Hymans [1920] 3 KB 475, McCardie J
3. The respondent’s invalid suspension of the applicant was a refusal by the respondent to provide training and teaching. This amounted to a breach of an essential term of the contract by the respondent or a repudiation by the respondent. Each breach was a continuing breach and each day the respondent refused to provide training was a further breach.
4. The applicant was entitled to, and did, terminate the contract as a result of the breach; or alternatively was entitled to, and did, accept the repudiation.
5. The applicant is entitled to damages, being the costs of completing her courses at an equivalent alternative institution, or a refund of the amount paid (plus interest) less the credits obtained.
Respondent’s contentions
The respondent variously contends in its final submissions[5] that:
(1)there was no breach of contract by the respondent, no estoppels and no basis for the alleged variation to the contract between the parties; and
(2)the termination of the applicant was the result of the applicant’s own conduct, specifically her refusal to pay for her own education, and not a consequence of the action taken by the respondent; and
(3)there existed a “cogent and proper basis” for the suspension and termination of the applicant, namely the repeated failure of the applicant to pay school fees, constituting repudiatory conduct by the applicant[6].
Issues
[5] Respondent’s Final Written Submissions at [52]
[6] Klewer v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2005] NSWSC at 116 per Hall J
The agreed issues are as follows:
(a)What was the contract between the applicant and the respondent?
(b)Was that contract breached or repudiated by the respondent?
(c)In the alternative, was the respondent estopped from suspending and then terminating the applicant?
(d)Did the applicant suffer recoverable loss or damage?
(e)If the respondent is found to have caused the applicant loss, did the applicant take reasonable steps to mitigate her loss?
Consideration
a) What was the contract between the applicant and the respondent?
The applicant signed an agreement with the respondent on 9 July 2010, which was subject to the ABTA Procedures. Contractually;
(1) the applicant was to pay fees and comply with the respondent’s ABTA Procedures in undertaking and completing the course work to an acceptable standard to obtain the units for the Diploma in Beauty Therapy (Diploma); and
(2) the respondent was to provide training and teaching and, on the payment of fees and the student meeting all course and clinical requirements, and completing an Application for Diploma/Certificate; award the applicant the Diploma[7].
Were the terms of the contract varied?
[7] Paragraph 24 of the ABTA Procedures
The applicant contended that the terms of the ABTA Procedures were varied by express or implied agreement such that the late payment as against the TFSAs was not a ground for suspension. The applicant submitted that to establish a variation one party to the contract must conduct itself in a way which is clear, unequivocal, precise and unambiguous and the other party must rely on that conduct.[8]
[8] Applicant’s submissions at [9]
The applicant contended that by allowing her to enter new TFSAs when she had missed multiple payments from earlier TFSAs, which covered a lengthy period, without any comment or warnings to her, the respondent expressly or impliedly agreed or represented that her subsequent late payments would not be a ground for suspension and the applicant relied on that conduct.
In cross examination about the discussions between the applicant and Ms Gan before the applicant amended her enrolment on 1 August 2010 and entered into the second TFSA, the applicant said she was made aware that the payment of fees was an essential condition. While the applicant also told the Tribunal she was not aware until 16 May 2011 that the respondent could suspend her, she conceded that she signed the Student Induction Check List and by ticking the ‘Suspension and Expulsion Policy and Procedures’ she acknowledged she read and understood these policies on 11 July 2010.
Ms Gan gave evidence of the numerous discussions she had with the applicant about her late payments of fees and the need to keep up with the fees and also of her reminding the students in classes of the need to pay their fees. The applicant agreed in her evidence that she had spoken to Ms Gan about her finances. Where the evidence of the applicant and Ms Gan differed in relation to this evidence the Tribunal had no hesitation in preferring Ms Gan’s evidence. She was a credible witness. The Tribunal noted the applicant’s failure to provide answers in cross examination, when it appeared to the Tribunal that the answer may not have assisted her.
Even if the Tribunal was persuaded that Ms Gan had not made any comments to the applicant about late payments, which it is not, the Tribunal is not satisfied having considered the evidence that there was any evidence which would enable the Tribunal to find that the respondent knew that the applicant was relying on a belief that the respondent would not take action in respect of the late payments.
Nor does the Tribunal accept the applicant’s contention that the respondent “allowed and actively encouraged the applicant to upgrade her course to far more expensive courses on three occasions without comment or discussion over fees.”[9] The applicant said, when asked why she took on extra courses if in financial difficulties, “I was enjoying the course, I had a lot of encouragement; I wanted to practise as soon as possible; it was my decision at the end of the day.” The Tribunal is satisfied and finds that it was the applicant’s decision to upgrade her courses.
[9] Applicant’s submissions at [10c] and [10g]
The applicant also contended[10] that the respondent unequivocally accepted multiple new TFSAs associated with course changes, which did not require the payments to be brought up to date, without bringing the potential adverse late payment consequences to the applicant’s attention. The Tribunal does not accept this contention for the reasons set out in paragraph 16 above.
[10] Applicant’s submissions at [10d], [10e] and [10f]
While the applicant correctly states that the amount stated as owing in several of the TFSAs was $500 too high, the Tribunal does not accept that it follows that the respondent did not pay much attention to these agreements. The agreements were the applicant’s own documents in which she proposed a timetable for payment of the current course balance, to which she would adhere. The applicant told the Tribunal prior to enrolling in the course with the respondent she was a certified practising accountant. It would have been reasonable to expect that the applicant, having those qualifications, would correctly identify in her own documents the current balances from her own payment records, including receipts.
It is also correct that the respondent did not state in writing to the applicant the potential adverse consequences from late payments and did not charge a late payment fee. As the potential adverse consequences were set out in the ABTA Procedures which the applicant had represented she had read, the Tribunal is not satisfied that it was necessary or incumbent on the respondent to also repeat this information in correspondence with the applicant.
The emails between the parties in Exhibit A1 show that the applicant gave notice of her expected late payments in February 2011 and April 2011. Ms Gan said, in cross examination, that she had advised the applicant when she was late in payments that the late fee was $5 and that the applicant usually had a personal issue in the background. The respondent dealt with these situations on a case by case basis by having a discussion with the student.
The Tribunal is satisfied, having considered the evidence, that there was no express agreement that the late payment as against the TFSAs would not be a ground for suspension.
In relation to the respondent’s contention that there was an implied agreement, the respondent contended[11] that there cannot be an implied variation of the terms of the contract such that by allowing the applicant to enter into new TFSAs without enforcing the right of suspension, the respondent did not have the right to enforce the suspension.
[11] Respondent’s Submissions at [16]
As support for this contention the respondent referred the Tribunal to the Federal Court of Australia decision in Arrowcrest Group Pty Ltd v Ford Motor Company of Australia Ltd[12] (Arrowcrest) where the Federal Court of Australia considered whether, in a contract for supply of components to a motor vehicle manufacturer for a fixed term not coinciding with the life of vehicle model, there was an implied term that there was an obligation to supply for the period between the end of term and commencement of new model.
[12] [2002] FCA 1450 at 8 per Heerey J
Heerey J stated:
“No. Once the contract came to an end by effluxion of time, neither party was under any obligationto negotiate for a further contract:Walford v Miles [1992] 2 AC 128 at 138. The implication of any such term would be inconsistent with the express terms of a contract like the present one which provides for a fixed term.”
The Tribunal is satisfied and finds that the fundamental purpose of the TFSAs was for the student to arrange for an alternative payment arrangement to which the student, the applicant in this case, would adhere.
After considering all of the evidence and submissions the Tribunal is satisfied and finds that the implication, urged by the applicant, that the respondent had foregone its right to suspend, is inconsistent with the express terms of the contract.
b) Was that contract breached or repudiated by the respondent?
The applicant contended[13] that the respondent’s suspension of the applicant was invalid as the respondent had not complied with paragraph 10.7 of the ABTA Procedures which required 20 days’ notice before a suspension and that the invalid suspension was a refusal by the respondent to provide training and teaching to the applicant.
[13] Applicant’s Submissions at [1(e)]
The applicant further contended[14] that the refusal by the respondent to provide training and teaching amounted to a breach of an essential term of the contract by the respondent or a repudiation by the respondent; that each breach was a continuing breach and that each day the respondent refused to provide training was a further breach.
[14] Applicant’s submissions at [3]
Whether a party’s conduct will amount to a repudiation is a question of fact.
The respondent referred the Tribunal to the High Court decision in Progressive Mailing House Pty Ltd v Tabali[15]where Mason J stated:
What needs to be established in order to constitute a repudiation is that the party evinces an intention no longer to be bound by the contract or that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way.
[15] (1985) 157 CLR 17, per Mason J at [38]
In that case, the appellant lessee of the premises failed to pay rent, failed to open on time, obstructed access to the premises, caused damage to the drains and sublet the premises without consent. This was described as a persistence in carrying out its obligations according to the terms of the lease in a way substantially inconsistent with the terms. Expressed another way, “the lessee’s conduct evidenced a refusal to perform the contract according to its terms”.[16] Mason J said at [52]:
In the result the evidence supports the conclusion that the appellant's conduct amounted to a repudiation of the lease or a fundamental breach of its obligations under the lease. The fact that the appellant lodged a caveat on 11 July 1979 to protect its interest as lessee under the unregistered lease is not at all inconsistent with this conclusion. Though maintaining a claim to the benefit of a contract, a party may repudiate it or commit a fundamental breach of it by refusing to perform his obligations according to its terms.
[16] Contract Law 3rd ed, Willmott Christensen Butler Dixon at page 677
The respondent also referred the Tribunal to the Arrowcrest decision where Heerey J considered an instalment contract and stated:
Failure of performance by one party will only entitle the other party to treat an instalment contract (as the ROH agreement may properly be characterised) as repudiated if the breach goes "to the root or essence of the contract": Mersey Steel and Iron Co v Naylor Benzon & Co (1884) 9 AC 434 at 443-444. Relevant to this question are the ratio quantatively which the breach bears to the contract as a whole and the degree of probability or improbability that such breach will be repeated: Maple Flock Co Ltd v Universal Furniture Products (Wembley) Ltd [1934] 1 KB 148 at 157.[17]
[17] [2002] FCA at 93 per Heerey J
Having considered all of the evidence, the Tribunal is satisfied and finds that the respondent never showed an intention not to fulfil its obligations under the contract prior to 17 March 2011 when the applicant was suspended.
The same cannot be said of the applicant. The applicant was persistently behind in her payments, even those which she committed to make in accordance with the various TFSAs and she said that she knew payment was an essential condition.
The ABTA Procedures included, at 3.7, the following:
Fees must be paid by the due date to ensure that a student may participate in classes, examinations and receive their qualification/award.
Failure to pay the fees by the due date will incur a late payment charge. Seriously delinquent accounts will be referred to a collection agency. Fees and charges will apply and be payable by the student.
Non payment of fees may result in the suspension or expulsion of a student at the discretion of the Academy Principal.
If a student is unable to complete a unit or units of a course as a result of being suspended for non-payment of fees, a unit or units may need to be restarted at a cost to the student.
In each TFSA the applicant specified the balance of the course fee the subject of each agreement including any amounts owing from earlier TFSAs, the payment method, the due date of each payment, the amount of each payment and the fee balance. Each TFSA was signed and dated by the applicant.
The applicant entered into the first TFSA on 11 July 2010, the first day of her course, and made one payment on the due date before applying to transfer from Certificate IV in Beauty Therapy to the Diploma of Beauty Therapy (Diploma) on 1 August 2010. The applicant entered into the second TFSA on 1 August 2010 which included the amounts still to be paid from the first TFSA and the fees for the Diploma. The applicant missed nine of the twelve payments due pursuant to the second TFSA and made two payments on account of three missed payments.
On 31 October 2010, the day after the ninth missed payment, the applicant entered into the third TFSA for $10,580 of the tuition fees yet to be paid as at that date. The third TFSA required the applicant to make payments on the first of each month. She made the first payment early and did not make any of the following five payments on the due date. She paid four of the five payments late and did not make the payment due on 1 April 2011.
The applicant entered into the fourth TFSA on 2 April 2011 for $9,049 which included additional fees of $3,230 for additional course upgrade fees. By 13 May 2011, when the applicant purported to enter into a fifth TFSA, the applicant had made one payment on the due date specified in the fourth TFSA and missed the payments due on 21 April 2011 and 5 May 2011. On 16 May 2011 the respondent did not agree to the fifth TFSA and suspended the applicant on 17 May 2011.
The respondent’s email of 16 May 2011 to the applicant stated that the respondent “cannot accept your suggested plan (fifth TFSA) which was handed in last Friday (the 13th of May 2011, 9pm)”
and
“I have clearly explained to you that it was all from our kindness to offer you maximum flexibility with fee payment in the past, but there have been many late payments during the course...plus you are already late for your two last instalments again without giving us any notice/advice, base on these experiences and your attitude towards the payment plan you signed, we cannot take further risk. We are now requiring the standard payment schedule to be fulfilled which means the total amount of $6,559 will need to be paid before we conduct further additional training and assessments....”
The respondent attached two invoices seeking a total payment of $6,559.00 immediately, in accordance with the standard payment schedule.
It was never in dispute that the applicant had missed multiple instalment payments as detailed above. The Tribunal is satisfied and finds that the applicant breached the contract by refusing or failing to meet her obligations under the contract – i.e. to pay the fees in accordance with the TFSAs. The Tribunal is satisfied from the evidence that the applicant’s history of non-compliance with the TFSAs as at the date of the suspension letter left the respondent in no doubt that the degree or probability that the applicant’s breaches would continue was high.
In correspondence to the applicant after 17 March 2011, the respondent clearly set out its intention to fulfil its obligations under the contract upon the applicant demonstrating her own adherence to the contract by making all of the payments in accordance with the sixth TFSA which the applicant had submitted with her email to the respondent on 17 May 2011.
However, the applicant once again failed to adhere to the terms of the sixth TFSA in which she agreed to pay $4,559 by five fortnightly lump sum payments with the last payment of $859.00 being due on 15 July 2011. The applicant made the first four of these payments and did not make the final payment. The applicant also did not reply to the respondent’s correspondence to her.
The Tribunal has also considered the applicant’s further contention[18] that the respondent’s concerns about her non-payment and late payment of fees only arose when it became clear that the applicant was the only person within ABTA who would be preparing and sitting for the international examinations in July 2011.
[18] Applicant’s submissions at [15(g)]
On or about 8 April 2011, some 6 days after the applicant had submitted the fourth TFSA, the applicant requested that she be able to undertake international examinations with ITEC and CIDESCO at the same time as completing her national qualifications, in July 2011, rather than at the end of the year when these examinations were usually held. The Tribunal accepted Ms Gan’s evidence that ITEC and CIDESCO provide an examiner from overseas for the purpose of these examinations at a cost which was invoiced to the respondent and ultimately payable by the student.
The Tribunal also accepted Ms Gan’s unchallenged evidence that she did not usually hold the international examinations midyear but that she offered to make enquiries as the applicant insisted that she wanted to finish her courses in the July. The Tribunal also accepted her evidence that once an international examination was booked, the respondent would be liable for the associated fee. For this reason Ms Gan required students sitting the international examinations to pay her the fee on confirming their participation in that examination, so that she could pay the international institution’s fees when the booking was confirmed.
The Tribunal is satisfied that Ms Gan discussed the international examination costs with the applicant before 18 April 2011. The applicant referred to such a discussion in her email to the respondent dated 18 April 2011 and stated that she was considering getting a loan for the costs, had talked with the bank that day and the bank required “some verification of the amounts required and what it is for etc.” In another email to the respondent dated 2 May 2011, the applicant again referred to her having talked to the bank regarding the possibility of getting a loan.
In her email dated 4 May 2011 to the applicant Ms Gan confirmed:
(a)the availability of an ITEC examiner on 24 July,
(b)the ITEC exam fee was $1,000,
(c)the respondent had not received the applicant’s confirmation of whether she was prepared to sit the ITEC exam,
(d)the respondent would not book the ITEC exam until the applicant had confirmed as the $1,000 fee was payable as soon as the booking was confirmed,
(e)the clinic practice and work experience the applicant would need to complete before sitting the ITEC exam,
(f)that the total outstanding amount of A$6,559.00 needed to be paid by 23 July 2011,
(g)the respondent was awaiting advice from CIDESCO, which she expected the following week, about conducting an exam in July 2011 for the applicant, and
(h)the CIDESCO exam fee “will be around $2,500.”[19]
[19] Document 17 – Statement of Agreed Facts and Evidence
In further emails between the parties on 5 May 2011, the applicant stated she would like to proceed with the ITEC examination on 24 July 2011 and sought clarification of the costs for both international examinations as she had understood those costs were included in her total course fees. The respondent replied on 6 May 2011 stating, among other things, that:
(a)the international diplomas course fees included in the total course fees were for the training and preparation as set out in the course outlines, not the examination costs;
(b)the CIDESCO exam fee was $2,500 and the respondent is “prepared to cover any additional cost [you] may occur above that amount, in order for you to get the loan in advance and not worry about any unknown figures.”[20]
(c)the CIDESCO fee is not $1,130 as that was the amount quoted when the respondent had three candidates for the examination,
(d)she had been able to negotiate the lower $1,000 fee with ITEC, and
(e)she would now book the ITEC examination for the applicant on 24 July.
[20] Document 20 – Statement of Agreed Facts and Evidence
The Tribunal accepted Ms Gan’s evidence that she had a discussion with the applicant on Saturday 7 May 2011 about the international examinations, the preparation training and the applicant getting a loan for the fees. The respondent emailed the applicant on 9 May 2011, confirming these discussions and stated “Please note, the school fee and the ITEC exam fee must be paid before you can sit the ITEC exam.”
The respondent’s email also requested the applicant pay the $1,000 ITEC exam fee “asap to secure the booking. Otherwise we will be at risk of loosing (sic) the opportunity of having the exam on the scheduled day and/or increasing in exam fee. Please let me know how you would like to pay and when the payment will be done, so thati (sic) can organise the transaction to ITEC asap accordingly.” In this email the respondent attached the Invoice and the copy of the Payment Plan Schedule sheet for $2,000 for the international diplomas course. This email also set out information about the training and preparation sessions and clinic hours.
While the applicant responded to the respondent’s request about theory and practical training times in her email dated 9 May 2011, the applicant did not respond to the request that she let the respondent know how and when she would be paying the ITEC exam fee and the school fee. In cross examination the applicant did not dispute that Ms Gan was of the belief that she was getting a loan for the fees and that she would have held this belief from, at the latest, their conversation on 7 May 2011 and the applicant’s email to her dated 9 May 2011.
The Tribunal noted that the applicant had stated in her email to the respondent dated 18 April 2011 that she was considering getting a loan, had talked with the bank that day and the bank required some verification. Given this evidence it would appear that the applicant led Ms Gan to believe she was considering getting a loan as early as 18 April 2011.
Ms Gan emailed the applicant on 11 May 2011, enclosing the earlier emails and stated that she had not received the applicant’s confirmation about the ITEC fees and the school fees and she requested confirmation by 6pm, 12 May 2011 so she could contact ITEC and CIDESCO. She also stated that she would have to cancel these bookings if the applicant’s confirmation was not received by then.
The applicant responded by email dated 12 May 2011. The applicant requested a meeting on 13 May and stated, in relation to the fees:
“In terms of fees, timing for clinic and work experience, etc I would like to meet to discuss these with you, as I feel this is all intertwined with the possibility of CIDESCO and likely costs and dates.”
The applicant told the Tribunal that at that meeting Ms Gan had asked her how much she would be prepared to pay to sit the international exams and that the applicant had thought this was inappropriate as the examinations should be for a fixed fee. It appears to the Tribunal that Ms Gan’s question reasonably followed the respondent’s offer in its 6 May 2011 email to the applicant to cover additional costs in order for the applicant to get a loan. The applicant said she submitted a new TFSA (the fifth TFSA) at the request of the respondent which was not accepted.
The applicant denied, in cross examination, that she told Ms Gan at the meeting on 13 May 2011 that she could not arrange a loan for the ITEC exam, or that she asked why Ms Gan could not pay for her and that Ms Gan had said she could not continue to take that risk and that she was not prepared to incur the costs on the applicant’s behalf.
However, the applicant agreed in cross examination that when she submitted the fifth TFSA she knew she did not have a loan and would have to rely on her own income and cutting back on her expenditure, to comply with this TFSA. She also knew that the respondent had discretion not to accept the fifth TFSA.
Ms Gan told the Tribunal that at the meeting on 13 May 2011 she reiterated to the applicant that the international examination institutions were waiting for the respondent to confirm the examination arrangements. She asked the applicant’s intentions for the international examinations. The applicant told her she could not pay the fees and did not get the loan and asked why the respondent could not pay for her. Ms Gan said that the applicant became very angry and banged the table in that meeting and it was then very clear to Ms Gan that the applicant would not be able to meet the fee payment requirements. With the applicant’s long history of non-compliance with the TFSAs as at the date of this meeting, and the applicant’s conduct at the meeting, Ms Gan said she had significant doubt that the applicant would stick to the payment plan.
Ms Gan then wrote the email to the applicant which she said she attempted to send on 15 May 2011 and resent on 16 May 2011 as she had not heard from the applicant.
Ms Gan said that the applicant walked into her office on 17 May 2011. During that meeting she suspended the applicant and explained the reasons why, and that the applicant agreed with her.
The Tribunal is satisfied and finds that the applicant’s loan did not eventuate and the applicant knew this on 13 May 2011, at the latest. Where the evidence of the applicant and Ms Gan differed in relation to the conversation on 13 May 2011 the Tribunal had no hesitation in accepting Ms Gan’s evidence. She was a credible witness.
It appears to the Tribunal that the applicant had created a financial burden for herself in her desire to “be able to practise as soon as possible” without giving any or any reasonable consideration to the financial imposts she was creating for herself and for the respondent. It was, as the applicant said, her decision to take on the extra courses at the end of the day. The respondent’s requirement that the international examination fees be paid at the time of the booking confirmation was, in the circumstances, reasonable, particularly given the applicant’s poor payment record and the fact that the respondent would be liable for this fee once the examination was confirmed.
The respondent’s emails should have left the applicant in no doubt that the respondent needed either payment of the $1,000 for the CITEC examination when the booking was confirmed, or an acceptable proposal from the applicant as to when and how she would pay this money before the respondent would confirm the examination. These emails demonstrate an increasing urgency for the applicant to attend to this payment. The applicant appears to have ignored this part of the emails until she requested the meeting on 13 May 2011.
The Tribunal is satisfied and finds that the applicant’s failure to raise a loan or to pay the $1,000 left the respondent in the position where the only reasonable action the respondent could take was to not confirm the CITEC examination.
The applicant said in her evidence that she thought that the respondent had not wanted to train only one student for an examination in July and this caused the situation to escalate.
The Tribunal is satisfied from the evidence that the respondent’s concerns about the applicant’s non-payment and late payment of fees were unrelated to the fact that the applicant was the only person within ABTA who would be preparing and sitting for the international examinations in July 2011. Ms Gan said the respondent’s practice was to arrange for students undertaking international examinations to pay the examination fee to the respondent upon confirming their sitting the examination. In cross examination the applicant said she was aware that there was an upfront cost for the respondent to arrange the ITEC examination and pay $1,000 and that she was required to pay that amount to the respondent.
The Tribunal has already found that Ms Gan raised her concerns with the applicant about the late payment of her fees throughout her studies. The respondent’s concerns were brought to a head because the applicant failed to raise a loan or make acceptable arrangements with the respondent for the payment of the examination fee of $1,000 which she knew was an upfront cost for the respondent and payable by the student.
It appears to the Tribunal that there was a further issue of concern for the respondent, namely the applicant’s aggressive behaviour at the meeting on 13 May 2011. Ms Gan described the applicant as angry and banging the table at that meeting. This behaviour caused the respondent alarm. As a result, Ms Gan said the respondent had lost any confidence it had in the applicant, especially in relation to her complying with her financial commitments.
72. It was clear to the Tribunal that the applicant knew and accepted the respondent’s position. In her email to the respondent dated 17 May 2011 the applicant stated:
“... I also confirm from our discussion that you state that no further training and assessments will be provided to me until I pay the balance of fees, …”
The applicant attached a sixth TFSA to this email and subsequently made all but the last of the five lump sum payments in that TFSA. She did not contest the respondent’s decision.
c. Was the respondent estopped from suspending and then terminating the applicant?
The terms of the suspension were clear. The suspension clearly stated that it would be lifted when the applicant had paid the arrears in full. The terms were acknowledged by the applicant in her email of 17 May 2011 and confirmed by the respondent in its email dated 24 May 2011.
While it is correct that during the suspension the applicant made some payments in accordance with the sixth TFSA, the Tribunal is not satisfied from the evidence that the parties agreed if the applicant paid some of her arrears the suspension would be lifted.
There was no dispute that the respondent did not give 20 days’ notice to the applicant prior to her suspension. However, the respondent submitted, and the evidence supports the Tribunal finding, that time was not of the essence for payment under the TFSAs. The respondent further submitted an aggrieved party in such contracts may gain a right to terminate should the delay continue for so long as to amount to repudiation,[21] or through use of a notice procedure[22] and that the respondent’s suspension was equivalent to the notice procedure.[23]
[21] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
[22] Louinder v Leis (1982) 149 CLR 509
[23] Respondent’s submissions at [18]
The Tribunal is satisfied that the suspension notice did specify a time for performance – 15 July 2011, being the date for the last instalment in accordance with the sixth TFSA; this time was reasonable as the applicant had nominated the time and the notice specified that the applicant would not be allowed to return to studies until the date all outstanding fees had been paid. The Tribunal finds that the applicant acknowledged these conditions in her email dated 17 May 2011.
The applicant also contended[24] that she was at all times ready and willing to perform her obligations under the contract and had, by her conduct elected to accept the respondent’s repudiation by ceasing to make payments and not seeking to return to the respondent for further study. The applicant referred the Tribunal to the English Court of Appeal decision in Tele2 International Card Company SA and Others v Post Office Limited[25]as authority for finding “an election can be communicated by words or conduct”. In the present matter the applicant contended that her failure to make further payments communicated, in clear and unequivocal terms, her election to accept the repudiation.
[24] Applicant’s submissions at [65] and [66]
[25] [2009] EWCA Civ 9
For the reasons set out above, the Tribunal does not agree with this contention. The evidence clearly established that the applicant, by acknowledging the respondent’s conditions in her email dated 17 May 2011, accepted the conditions. Her conduct in continuing the instalment payments confirmed this. This conduct, the Tribunal finds, is affirmation of the contract, albeit now varied by the applicant to have payment in full made by 15 July 2011.
The question arises then, is the applicant’s failure to make the final payment and not to seek to return to study conduct unequivocally inconsistent with an election that the contract was continuing. The applicant referred the Tribunal to the High Court decision in Khoury v Government Insurance Office of NSW[26] in which Mason, Brennan, Deane and Dawson JJ stated –
Elections -
19. A person confronted by two truly alternative rights or sets of rights, such as the right to avoid or terminate a contract and the right to affirm it and insist on performance, may lose one of them by acting "in a manner which is consistent only with his having chosen to rely on (the other) of them" (per Lord Diplock, Kammins Ballrooms v. Zenith Investments (1971) AC 850, at p 882; see also Tropical Traders Ltd. v. Goonan [1964] HCA 20; (1964) 111 CLR 41, at p 55 and Sargent v. A.S.L. Developments Ltd. [1974] HCA 40; (1974) 131 CLR 634, at p 665… …..An election, unlike estoppel, is concerned with what a party does and not what he causes the other party to do (see, e.g., Craine at p.326; per Rich, Dixon and Evatt JJ. in Newbon v. City Mutual Life Assurance Society Ltd. [1935] HCA 33; (1935) 52 CLR 723, at pp 733-5). At the latest, it is complete or "final" when made and "communicated" to the other party (see Newbon, at p.733).
20. Where an election is not shown to have been consciously made, the words or conduct relied upon to impute it must unequivocally evidence "the exercise of one of the two sets of rights and (be) inconsistent with the exercise of the other" (per Stephen J., Sargent's Case, at p.646)..
[26] [1984] HCA 55
The difficulty for the applicant here is that the applicant did not communicate this decision to the respondent. Instead the applicant appears to have done nothing. She had not notified the respondent of her change or changes in her address during her studies as required by the ABTA Procedures. She did not answer Ms Gan’s telephone calls or her emails.
Having considered all of the evidence, the Tribunal is not satisfied that the applicant’s conduct, given her professional qualifications, and in the absence of words, is unequivocal evidence that she has treated the contract as not continuing.
The Tribunal is satisfied and finds that the applicant has failed to prove the existence of estoppel. Accordingly, the Tribunal finds that the respondent was not estopped from suspending and then terminating the applicant.
d) Did the applicant suffer recoverable loss or damage?
Notwithstanding that the Tribunal has found that there was no breach of contract by the respondent and no estoppel, given the parties’ detailed submissions in relation to the question of damages, the Tribunal has also considered this issue.
In an English case, Target Holdings Ltd v Redferns[27], the House of Lords considered the test for causation and the extent of compensation for breaches of trust. Lord Browne-Wilkinson gave the leading judgment which stated:
“At common law there are two principles fundamental to the award of damages. First, that the defendant's wrongful act must cause the damage complained of. Second, that the plaintiff is to be put "in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation": Livingstone v Rawyards Coal Company (1880) 5 App Cas 25, 39. per Lord Blackburn……..
…….. liability is fault based: the defendant is only liable for the consequences of the legal wrong he has done to the plaintiff and to make good the damage caused by such wrong. He is not responsible for damage not caused by his wrong or to pay by way of compensation more than the loss suffered from such wrong.”
[27] [1996] 1 AC 421, 432
The questions are (a) what is the real cause of the damage claimed and (b) what is the applicant’s loss or damage.
The applicant has claimed a refund of the total amount paid to the respondent but limited to the $10,000 jurisdiction of this Tribunal, apparently in the belief that there has been a total failure of consideration. The Tribunal concurs with the respondent[28] that this submission must fail as the applicant has received portable units under the Australian Qualifications Framework. The Tribunal notes that the applicant also has completed 11 non-accredited and non-transferable credits from undertaking these courses with the respondent and therefore has acquired these skills.
[28] Respondent’s submissions at [36]
While the parties agreed that completing her Diploma at the Elleebana Total Beauty Centre (Elleebana) would cost the applicant $9,045.00 (Exhibit A3), there was no agreement that such an amount was an appropriate level of damages if liability was established. The Canberra Institute of Technology also offered a cheaper alternative to Elleebana and the applicant could have completed her Diploma at ABTA upon paying the one remaining instalment under the sixth TFSA. The applicant’s evidence as to why she did not pay the one remaining instalment and complete her Diploma with the respondent was unconvincing.
In relation to the real cause of the damage, the Tribunal cannot ignore the applicant’s concession in cross examination that she knew that the payment of fees was an essential condition of the contract. The applicant persistently failed to make the payments on time. As the respondent submitted –
“it ought to have been readily apparent to her that her failure to pay the respondent would ultimately lead to the respondent not being prepared to continue to effectively fund the applicant’s education. Accordingly the applicant was the architect of her own loss, as she put the respondent in the position where it had little choice but to follow its policies (of which the applicant was aware) by suspending and ultimately expelling the applicant from her course.”[29]
[29] Respondent’s submissions at [39]
The respondent referred the Tribunal to the High Court decision in Baltic Shipping Company v Dillon[30] where Mason CJ stated:
There can, of course, be no such failure when the plaintiff's unwillingness or refusal to perform the contract on his or her part is the cause of the defendant's non-performance.
[30] [1993] HCA 4 at [15] per Mason CJ
The Tribunal is satisfied from the evidence that when the applicant was making the instalment payments in accordance with the sixth TFSA, the respondent was taking steps to assist the applicant’s return to ABTA. The applicant chose not to make the final payment which would have enabled her to resume her studies at ABTA on 15 July 2011. She also chose not to reply to the respondent’s emails or letters enquiring about her return. The applicant conceded that she had not updated her post office or her home address which she used on her enrolment application even though she had moved at least five times. This was a requirement in the ABTA Procedures at paragraph 19.3.
She acknowledged that she received emails from the respondent dated 24 May 2011 and 30 August 2011 and did not reply to them. She said she had not made the final payment, even though she said she could have afforded it, as she knew she was not going back to ABTA.
Any losses, the Tribunal finds, were caused by her own actions. It was inevitable that, as the result of the applicant’s actions and inactions, the respondent would be left with no alternative than to continue the suspension and ultimately expel the applicant from the course.
The Tribunal concurs with the respondent’s submission[31]. The evidence supports the Tribunal finding that the applicant has failed to show she has suffered any recoverable loss or damage from any wrongful act of the respondent.
e) Did the applicant take reasonable steps to mitigate her loss?
[31] Respondent’s submissions at [42]
The short answer is “no”.
As stated above, the Tribunal is not satisfied that the applicant has shown that she suffered any recoverable loss or damage from any wrongful act of the respondent.
However, if the Tribunal had found that the applicant had suffered such a loss, it would be incumbent on the applicant to show that she had taken all reasonable steps to mitigate her loss.
The applicant made four payments in excess of the TFSA instalment amounts between 20 May 2011 and 5 July 2011. The amount outstanding, after appropriate adjustments, as 14 July 2011 was less than the $860 per fortnight payment the TFSA required the applicant to make. The total fees payable by the applicant after deduction of the $2,000 fees for the international exam was $14,200 and the applicant had paid $13,341. Had she made the payment due on 15 July 2011 she could have returned to ABTA the next day. The applicant, for reasons that were not satisfactorily explained, chose not to avoid a loss or reduce her loss to nil, and in doing so the Tribunal would find that she did not take reasonable steps to mitigate her loss.
Having considered all of the evidence and the submissions, the Tribunal would find that the applicant could have but failed to fully mitigate her loss.
Conclusion
The applicant’s claim is not successful. It will be dismissed.
………………………………..
Ms E. Symons
Presidential Member
HEARING DETAILS
FILE NUMBER: | XD 14/703 |
PARTIES, APPLICANT: | Chantal Therese Stephens |
PARTIES, RESPONDENT: | Australasian Beauty Therapy Academy Pty Ltd |
SOLICITORS FOR APPLICANT | Clayton Utz |
SOLICITORS FOR RESPONDENT | Bradley Allen Love Lawyers |
TRIBUNAL MEMBERS: | Ms E. Symons |
DATES OF HEARING: | 5 November 2014 |
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