TelcoWorx (Aust) Pty Ltd v Print Pro Pty Ltd

[2011] QCAT 682

CITATION: TelcoWorx (Aust) Pty Ltd v Print Pro Pty Ltd [2011] QCAT 682

PARTIES:	TelcoWorx (Aust) Pty Ltd trading as Telcoworx
v
Print Pro Pty Ltd

APPLICATION NUMBER: MCDO2857-10

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: 13 April 2011 and 9 September 2011

HEARD AT:  Brisbane

DECISION OF: John Bertelsen, Adjudicator

DELIVERED ON: 9 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: The respondent pay to the applicant the sum of $1,422.78.

CATCHWORDS: MINOR CIVIL DISPUTE – minor debt application for provision of telecommunication services

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	TelcoWorx (Aust) Pty Ltd by telephone
RESPONDENT:	Print Pro Pty Ltd by telephone on 13 April 2011, No appearance on 9 September 2011

REASONS FOR DECISION

Application

1. On 7 October 2010 the applicant filed a minor debt application seeking payment of invoices issued to the respondent for the provision of telecommunication services to the respondent.  On 3 February 2011 the applicant filed an amended minor debt application seeking payment of additional invoices payable since the time of filing its original application. 

1. After two adjournments the application came before the Tribunal on 13 April 2011.  This decision is based on the substance of that hearing and the material available at that time even though the application came before the Tribunal subsequently.

Background & evidence

1. On 24 November 2008 the applicant and respondent entered into an agreement (business account application) whereby the applicant would provide to the respondent telecommunication services i.e. two 1300 numbers, 1300 909 434 and 1300 989 646 and the respondent would pay the applicant’s applicable call rates.  The respondent acknowledged in the agreement that it had printed out, read and agreed to the applicant’s terms and conditions and that current payment rates were those as published on the applicant’s website.  The agreement acknowledged there was no contract and that services could be cancelled on 30 day notice by the respondent.

1. The terms and conditions provided, inter alia, for monthly accounts to be paid by the due date; that failure to pay the whole amount of each account constituted breach of the agreement; that non payment by the due date gave the applicant the right to rescind discount prices and impose the currently published standard rates. 

1. On 1 August 2010 the applicant issued its invoice for $568.40 for services for the month of July 2010.  That invoice was payable by 12 August 2010. 

1. On 20 August 2010 the respondent contacted the applicant to negotiate a better call rate “as other contractors had contacted us with much lower rates”.  The applicant replied by email of 20 August 2011 offering a lower 35c per minute call rate at the same time stating introduction of that lower rate was conditional on payment of the respondent’s outstanding balance ($568.40).  By email of 23 August 2010 the applicant advised that the respondent’s account was currently 11 days overdue; that suspension of services would be held off to Friday 27 August 2011; and that upon receipt of payment the lower rate could be backdated for the current month (August).  Payment of $568.40 was made on Friday 27 August 2010.

1. On 1 September 2010 the applicant issued its invoice for $761.11 for the month of August payable by 12 September 2010.  The respondent was credited $261.11 to take account of the lower call rate applied.  The applicant acknowledged it was an estimated credit for the reason it was time consuming and laborious to go through numerous entries line by line.  Despite demand the balance of $500.00 was not paid until 28 September 2010.

1. On 1 October 2010 the applicant issues its invoice for $887.01 for the month of September payable by 8 October 2010. 

1. On 4 October 2010 the applicant, responding to a query by the respondent, emailed the respondent stating that corporate (discount) rates had been applied to the respondent’s account; that in order to remain on discounted rates the respondent should ensure the 1 October invoice was paid by 8 October 2010; and advising that $80.00 penalty fees had been applied to the account.  The respondent replied the same day quoting by way of example phone call to 02 8778 4000 charged out at $16.14 for a 17 minute 56 second time duration.  At 35c per minute this call should only have cost $6.15 according to the respondent.  The same day the respondent cancelled its 1300 989 646 number. 

1. The same day the applicant responded confirming cancellation of the 1300 989 646 number.  It addressed the overcharging example proffered by the respondent stating that there were a couple of days charged at “standard rates”.  The applicant’s representative stated that “upper management” would be approached on the issue of fees and review.  The respondent replied stating the “entire bill needs to be at the agreed rate” and that “if you don’t or can’t or won’t fix it then we will seek out another provider”. 

1. The applicant further replied stating the respondent’s direct debit facility had dishonoured on three occasions from August 2010; that no new direct debit authority had been provided; that upon default standard rates apply; that the respondent’s account was moved to standard rates in September 2010 due to late payment; that the refund of $261.11 was honoured; and that the discounted rate applied previously was the best rate the applicant could provide.  On 5 October 2010 the respondent simply replied that its direct debit was still current and active.

1. By email dated 6 October 2010 the applicant clarified the position appropo the direct debit stating that “we ask for a new direct debit facility is due to your current NAB account being dishonoured.  It was dishonoured 2 months in a row due to insufficient funds, therefore is in place however dishonours.  We will continue to monitor your direct debt facility due to the infrequent nature of successful transactions of late and envisage that for now the problem has been rectified.”  That email goes on to further state “please be advised that in good faith we have refunded the said amounts of $80.00 and $261.11 back to your Telcoworx account with us today.  Your new balance is $545.90.  Please ensure your direct debit facility is equipped to successfully process payment by the due date (8 October 2010) in order to avoid movement to standard rates.” 

1. The respondent’s email reply of 6 October 2010 simply reads “if you move us to standard rates then we will go elsewhere let’s be clear on that”. 

1. The next communication is an email of 22 October 2010 to the applicant by the respondent stating “noticed you haven’t taken the payment for last month from the nominated account?  Could you advise what is happening with that.”  Then a further email of 23 October 2010 reads “please advise what is going on”.  Finally EFT payment of $545.90 by the respondent to the applicant’s Commonwealth Bank account is made on 25 October 2010. 

1. The respondent in its submission states “we paid all accounts via direct debit, credit card or EFT to the applicant”. 

1. On 28 October 2010 the respondent emailed the applicant regarding receipt of this QCAT application asserting it was “not behind on any bill”; that the application had no merit; and that a notice of discontinuance ought be filed with QCAT.

1. The applicant replied that the agreement was being terminated for continuous failure to comply with terms and conditions by not paying by the due date and then quoted late payment of September and October accounts.  It reminded the respondent that failure to pay by the due date lead to loss of eligibility for discount rates.  The applicant then gave the respondent seven days to transfer the service to Telstra or Optus “after which time if your services remain on our network your service number will be cancelled.”

1. The respondent by return email on the same day disputed late payments stating “you have failed to attempt to debit our account on 8 October 2010 or to respond to our correspondence thereafter.”  The respondent then indicates it does not want to waste time at QCAT and suggests the applicant let it know what it believes is owing, fully itemised, so the account can be settled.

1. On 1 November 2010 the applicant issued its invoice for $1,038.69 for the month of October payable by 8 November 2010.  The 1 October account discount of $261.11 was disallowed and added to the October call charges of $777.58 making for a total of $1,038.69.  On 4 November 2010 the respondent enquired of the applicant “please respond with details of account so we can authorise payment by the due date” to which the applicant replied on a without prejudice basis that the respondent could select payment options from the applicant’s website.

1. On 10 November 2010 the respondent emailed the applicant stating “we have asked our bank to return the drawing attempted yesterday unpaid.  We have done so as you have failed to bill us at the correct rates, have illegally added a refund previously agreed to and have failed despite repeated requests to contact us with a view to amicably resolving this matter”.  The applicant subsequently cancelled the 1300 909 434 number. 

1. At hearing the applicant claimed its account issued November 1 2010 for $1,038.69, the sum of $536.57 being the difference between the $1,038.69 and the original QCAT claim of $1,575.26 and $243.95 being its account issued 1 December 2010 for the month of November payable by 15 December 2010. 

1. The respondent for its part disputed the rate of billing, sought to be credited what it considered to be the illegal reversal of the discount credit of $261.11 and raised an issue of loss or damage resulting from the cancellation of the number 1300 909 434.

Conclusions on evidence

1. The terms and conditions attaching to the agreement between the parties make it clear that corporate or discount rates will apply only if accounts were paid on time.  None of the August, September and October 2010 accounts were paid by the due date.  In fact the applicant in accommodating the respondent with a lower call rate in August 2010 applied the discount rate to that account even though the account was not paid until 27 August 2010.  The discount was in fact backdated and appeared as a credit in the account issued 1 October 2010.  As that account and the subsequent October 2010 account were not paid on time it is the case that the respondent was not eligible for the discount.  The respondent asserted the applicant failed to debit its NAB account within the due date timeframe.  The applicant’s previous attempts to do so had resulted in dishonour so understandably the applicant was reluctant to use that facility.  It informed the respondent to that effect.  A number of payment methods were always available to the respondent.  They appeared on the applicant’s website.  In fact the respondent’s own material discloses payments by EFT to the applicant’s Commonwealth Bank account.  To suggest the applicant was negligent in not ensuring payment on time in these circumstances is nonsensical.  It was the responsibility of the respondent to pay by the due date to be eligible for the discount rates.  A number of payment methods were available to the respondent.

1. The respondent disputed the rate of billing citing an example at hearing of a call charge well in excess of the discount rate of 35c per minute.  The rate of billing was only going to be at the discount rate if the respondent paid its account by the due date and that never happened.  The rates charged were standard rates and the applicant was entitled to charge them.  The discount of $261.11 was a deduction against standard rates.  As the condition on which it was granted was never fulfilled the applicant was entitled to charge that sum. 

1. The number and particulars of calls recorded on each of the accounts August through to December 2010 have not been disputed by the respondent.  As the rate of billing is found to be justified it follows that the applicant’s account issued for 1 November 2010 for $1,038.69 is payable as is the account issued 1 December 2010 for $243.95.

Finality of this decision

1. At hearing the respondent referred to its counter claim the first two pages of which only were received by the Tribunal with the applicant stating it had never been served with any such counter claim.  It was made abundantly clear to the respondent that its claim for loss and damage it said resulted from cancellation of 1300 909 436 should be particularised in a separate claim to be lodged promptly with the Tribunal which would then consolidate the two claims for further and final hearing.  The respondent indicated it would file and serve its “cross claim”. 

1. The Tribunal indicated that once aware of the filing of the respondent’s separate claim and presumably the applicant’s response that it would arrange for this application and the cross claim to be brought on for final hearing.  It was made clear to both applicant and respondent that the only further issues to be addressed by the Tribunal were the components of the loss or damage allegedly suffered by the respondent as a result of cancellation of 1300 909 436 and that the hearing of this application as such was concluded.

1. Despite enquiries by the Tribunal on 22 June, 27 June, 30 June and 1 July 2011 no claim for loss or damage arising out of the subject matter of this application has been lodged by the respondent with the Tribunal.  This application was relisted for hearing on 29 July 2011 but adjourned due to non availability of the Tribunal Adjudicator.

1. This application was relisted for further hearing on 9 September 2011 with hearing notices being sent in particular to the respondent’s nominated address for service.  Additionally the respondent enquired by email on 9 August 2011 as to whether “a new date been set we haven’t received any documents”.  The Tribunal informed the respondent by email of 23 August 2011 that this application was listed for hearing on 9 September 2011.  Hearing notices were in fact posted on 10 August 2011. 

1. On 9 September 2011 the applicant attended by phone.  The respondent had previously attended by phone.  Five attempts were made at 2:05pm and in the minutes thereafter to contact the respondent on its nominated 1300 408 200 number but without success.  On each occasion there was a recorded message to the effect “unable to come to the phone right now”.  Finally the Tribunal attempted contact on 1300 909 434 (disputed number) but it recorded as being temporarily out of service.

1. The Tribunal has afforded the respondent procedural fairness.  The respondent did not take the opportunity to lodge its own claim for loss or damage.  The applicant wished to proceed.  All evidence the applicant relied on in respect of this application was placed before the Tribunal on 13 April 2011.  The Tribunal informed the applicant that its decision would be reserved particularly in light of the fact that the pertinent evidence was given at the hearing on 13 April 2011. 

1. The applicant is entitled to recover from the respondent the sum of $1,038.69 being the November account and $243.95 being the December account.  The applicant’s calculation to arrive at its claim of $536.57 is flawed as it deducts the sum of $1,038.69 from the whole of the original claim of $1,575.26 which in fact included an amount owing of $1,435.12.  Correctly the applicant ought be allowed its original filing fee of $92.00, service fee $31.75, company search fee $16.39, an additional $140.14.  The total recoverable by the applicant is therefore $1,422.78.

Order

1. The respondent pay to the applicant the sum of $1,422.78.