The Jag Group (Qld) Pty Ltd v Securemation Pty Ltd
[2018] QCATA 175
•19 November 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
The Jag Group (Qld) Pty Ltd v Securemation Pty Ltd [2018] QCATA 175
PARTIES:
THE JAG GROUP (QLD) PTY LTD ATF THE DE JAGER FAMILY TRUST
(appellant)v SECUREMATION PTY LTD
(respondent)
APPLICATION NO/S:
APL238-17
ORIGINATING APPLICATION NO/S:
MCDO2109-16 (Brisbane)
MATTER TYPE:
Appeals
DELIVERED ON:
19 November 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
1. The name of the appellant is changed in the tribunal’s record from The Jag Group Qld Pty Ltd ATF The De Jager Family Trust to The Jag Group (Qld) Pty Ltd ATF The De Jager Family Trust.
2. Leave to appeal against the decision made on
28 June 2017 in MCDO2109-16 Brisbane is refused. The appeal therefore fails.CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where minor civil dispute heard by Adjudicator – whether any reasonably arguable grounds of appeal
REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
This is an appeal from an Adjudicator’s reserved decision,[1] in which he ordered the Jag Group (Qld) Pty Ltd to pay $25,000 to Securemation Pty Ltd, plus the cost of bringing the claim, in the tribunal’s minor civil dispute jurisdiction.[2]
[1]Securemation Consulting Pty Ltd v the Jag Group Pty Ltd [2017] QCAT 289.
[2]The names on the Adjudicator’s order were corrected on 26 October 2018.
The claim arose from certain work done by Securemation for the Jag Group in setting up predictive monitoring of gas fields. Securemation said that it was engaged by the Jag Group to do the work in a series of emails and oral communications, and that it did the work at an agreed rate but had not been paid.
On two previous occasions the Jag Group had engaged Securemation to perform certain work (which the parties called an ‘opportunity’) and had paid for this work. On those two previous occasions the contractual arrangements were contained in a ‘Teaming Agreement’ signed by the parties on 30 September 2015. This provided that payment would be made on results - an agreed payment would be made on achieving each ‘milestone’. On the two previous occasions when work was done, the payments and milestones were set out in a schedule to the Teaming Agreement.
The subject matter of this claim was in respect of a third opportunity where the Jag Group had again engaged Securemation.
In defending the claim, the Jag Group contended that:-
(a)Securemation was engaged on the third opportunity on the same basis as before so that it was only entitled to payment on achieving milestones and since none were achieved, Securemation were not entitled to any payment.
(b)In any case, the result of the work done by Securemation had been encrypted and was no use to the Jag Group.
As for (a), Securemation said that its entitlement to payment was not dependent on achieving any milestones. For the Jag Group evidence was given by Mr De Jager, a director of the Jag Group:-[3]
In terms of our agreement, it was never a time and materials agreement; it was milestone based.
[3]Transcript page 1-10 line 30.
There was some support in the emails for the suggestion that the engagement on the third opportunity was going to be on the same basis as before, so that payment would be based on milestones being completed.[4] Securemation’s case however was that the milestones and the amount that would be paid for each milestone were never agreed. The Jag Group had provided a proposal on 19 February 2016, long after the work had commenced, but Securemation disagreed with it and refused to sign it.
[4]In particular the emails of 23 and 24 February 2016.
As for (b), the evidence for Securemation was that the work was done in a collaborative way and was accessible by others on the project and the client. Therefore it was easily picked up after they ceased working and was of substantial value to the Jag Group.[5]
[5]Transcript page 1-6 line 45, page 1-7 line 32.
The Adjudicator’s conclusions
There was a hearing on 31 March 2017 when the Adjudicator heard from both parties. In his reserved decision, the Adjudicator found that a substantial body of work had been done by Securemation for the Jag Group between 15 January 2016 and 24 February 2016. It was common ground that the pay rate of $1,200 per 8 hour day excluding GST was agreed between the parties.[6] The Adjudicator found that it was not surprising that Securemation was unhappy with the proposal put forward by the Jag Group on 19 February 2016 and refused to sign it, because it understated the amount of work involved.[7]
[6]Reasons [33].
[7]Reasons [30].
In the circumstances, the Adjudicator found that Securemation should be paid for the work it had done at the agreed rate.
He also found that Securemation’s work was not valueless to the Jag Group. In this respect, he accepted the evidence adduced by Securemation about this.[8] The Adjudicator referred to emails praising Securemation for its excellent work and emails from the Jag Group both before and after work ended, stating an intention to pay for the work done.[9]
[8]Reasons [26], [34].
[9]Reasons [13] and emails of 23 and 25 February 2016.
The Adjudicator agreed with Securemation’s calculation for the amount owing, and noted that it was capped to suit the tribunal’s financial limit of $25,000 for minor civil disputes.
The appeal
In this appeal it is said on behalf of the Jag Group that the Adjudicator made 22 factual errors and two errors of law. These errors are set out in a document attached to the notice of appeal.
The two alleged errors of law, and largely the alleged errors of fact, all stem from the Adjudicator’s finding that Securemation’s right to payment should be based on the agreed hourly rate, and that achieving a milestone was not a condition precedent to payment.[10]
[10]Errors alleged in the catchwords and in reasons [3], [4], [8], [13], [26], [30], [31], [32], [33], [35] and [37].
Clearly, on the evidence the Adjudicator was entitled to make the factual findings he did. On those factual findings he was clearly correct in law in the conclusion that he reached. The milestones and the payments for each milestone were never agreed between the Jag Group and Securemation. Securemation refused to sign the proposal. Even if Securemation had agreed to work on the same basis as before, this cannot mean that the Jag Group was then entitled unilaterally to impose its own milestones and the payments for each milestone after a substantial amount of work had been done. Contractually, the milestones and the payments for each milestone could only have effect if agreed between the two sides, and that never happened.
In legal terms, Securemation’s claim was either a classic case of restitution or unjust enrichment – where work is done at the request of one party in anticipation of a contract being entered into but where no contract was in fact made, or it was for payment under a contract arising from an agreement that work would be done for payment.[11]
[11]And it is clear this is how the Adjudicator approached this analysis: reasons [27], [30], [32], [34] and [36].
In this appeal a new point is made relevant to the milestone agreement. The Jag Group suggests that the Teaming Agreement operated as an overarching agreement which governed the third opportunity.[12]
[12]Alleged error of law in reasons [3].
The difficulty with this argument appears from the Teaming Agreement itself. Clauses 1.1 and 1.2 make it clear that a separate contract will be made each time the parties sign an Opportunity Details Form (which is the schedule containing the milestones and the payments for each milestone). On the signing page it states that the agreement is ‘for the duration of the opportunity outlined in Schedule 1 – Opportunity Details Form’ and states ‘1. The parties plan to work together to deliver solutions and services as per attached schedules and 2. This agreement sets out the terms and conditions upon which the parties will work together.’ In particular, there is nothing in the Teaming Agreement which prevents the Jag Group from engaging Securemation on a different contractual basis. Clause 12.12.2 says that there is nothing in the agreement which ‘restricts or limits the activities of either party in any way’.
It is clear from the above that the Teaming Agreement did not operate as an overarching agreement which governed the third opportunity. Instead, it would have to be expressly adopted by parties in order to govern a particular opportunity.
Some of the alleged errors of fact in the appeal are independent from the milestone issue. One is that the Adjudicator got the name of the Jag Group incorrect in that he made the decision against the Jag Group Pty Ltd instead of the correct name for the company which was said to be the Jag Group Qld Pty Ltd ATF the De Jager Family Trust. In the Teaming Agreement prepared by the Jag Group however, which is the document it relied on in defending the claim, it has its name in the schedule and on the signing page as the Jag Group Pty Ltd. The Jag Group QLD Pty Ltd only appears on the cover page. In the circumstances, it is not surprising that the Adjudicator decided to use the Jag Group Pty Ltd. As it has now been found when dealing with this appeal however, the correct name of the company is the Jag Group (Qld) Pty Ltd. In this appeal, nothing turns on this issue.
It is also said that the Adjudicator was in error by referring to two previous Teaming Agreements that the parties had entered into. In this appeal it is said that there was only ever one agreement. The evidence from Securemation however, was that there were two previous written agreements.[13] It was clearly open to the Adjudicator on this evidence to make the finding he did.
[13]Comment to the solicitors’ letter of 13 May 2016 in Securemation’s material.
There is an appeal against the Adjudicator’s finding that the work done by Securemation was of value to the Jag Group.[14] In making this finding the Adjudicator was accepting the evidence given on behalf of Securemation and not accepting the evidence about this given on behalf of the Jag Group, which he was clearly entitled to do. Therefore it cannot be said he was in error for the purposes of this appeal.
[14]Reasons [34].
Several of the alleged errors refer to parts of the Adjudicator’s decision where he recites the evidence given by the parties under the heading ‘Background and Evidence’.[15] These are not findings of fact by the Adjudicator and so cannot be challenged as such.
[15]Alleged errors in reasons [5] to [18].
The other alleged errors of fact are really simply comment on what the Adjudicator said, and do not suggest errors made the Adjudicator which undermine his conclusion.[16]
[16]Alleged errors in reasons [2], [30], and [36].
Appeals in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Such leave will only be given if there is an arguable case on appeal. Such appeals are only arguable if the decision maker is in error in law, or has made a factual finding which could not be made on the evidence and is of such importance as to require leave to be given. This is not the case here. Leave to appeal is refused and the appeal therefore fails.
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