Toll v Tin Can Bay Chamber of Commerce and Tourism - [2018] QCATA 65

CITATION:

Toll v Tin Can Bay Chamber of Commerce and Tourism [2018] QCATA 65

PARTIES:	ANDREW THOROLD TOLL (Applicant/Appellant)
v
TIN CAN BAY CHAMBER OF COMMERCE AND TOURISM (Respondent)
APPLICATION NUMBER:		APL237-17

MATTER TYPE:

Application and Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Carmody

DELIVERED ON:

10 May 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1. The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the applicant was ordered to pay the balance of the price payable under a purchase agreement for a radio licence – where the applicant’s counter claim was dismissed because the tribunal found the respondent was not a “trader” – where the central allegation is the respondent’s neighbouring broadcast overpowered the applicant’s causing economic loss in breach of the purchase agreement – where the applicant claims the contract was rescinded – where the applicant nonetheless continued to use the frequency for his broadcast – where, even if there is arguable appellable error, leave is refused as no substantial injustice is demonstrated

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 12, 13, 15

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

The Form 39 in this appeal proceeding relates to decisions made by the tribunal in consumer disputes 31/2017 and 32/2017.
Application 31/2017 was initially lodged by the respondent in Brisbane as 217/2017 claiming $4,000 for the balance of the price payable under a licence sale agreement.
32/2017 was filed by the applicant in Bundaberg as 179/2016 seeking relief from liability to the respondent for the same debt plus $6,000 damages against it for breach of contract.
On 21 March 2017 32/2017 was adjourned to registry for lack of jurisdiction on the basis that it was neither a claim to recover a debt or liquidated demand nor “… a claim arising out of a contract with a trader”.
For some reason both 31/2017 and 32/2017 were later transferred to Gympie for hearing. 32/2017 was formally dismissed on 3 June 2017 as incompetent.
31/2017 proceeded to hearing on the same day resulting in an order that the applicant pay $2,000 “in final payment of the purchase agreement”.
Leave to appeal the decisions in both 31/2017 and 32/2017 is applied for on two questions.
As to 32/2017 the applicant contends that the respondent is a “trader” within QCAT’s minor civil disputes jurisdiction because it “provided a narrow cast service based on the same class of apparatus licence as (he) held” and asserts that the tribunal should have heard and upheld his “consumer claim for relief from payment” and awarded compensation for cancelled advertising orders as a result of the reduced coverage.
Of 31/2017 the applicant submits the tribunal “… erred in law in not finding that he properly terminated the purchase agreement” by email on 7 January 2014 “… for (the respondent’s) breach of an implied term not to broadcast contrary to licence conditions”.
In the event the appeal succeeds and decision 31/2017 is vacated, he seeks dismissal of the respondent’s claim.
Alternatively, if his appeal in 32/2017 is allowed and 31/2017 is set aside without being dismissed, then he proposes that 31/2017 and 32/2017 be consolidated and heard together in either Gympie or Brisbane.
If the appeal in 32/2017 is granted but 31/2017 is not dismissed or vacated a stay of the decision in 31/2017 pending the resolution of 32/2017 is sought.
Under direction 4 of 19 September 2017 the application was to be determined on the papers after 10 November 2017.
However, on 6 March 2018 the applicant filed for directions to amend his 10 October 2017 “submissions” and, if the respondent is found to be a “trader”, to reinstate the $6,000 claim in 32/2017 under the Australian Consumer Law.
The respondent contests leave and opposes any amendment.
Leave may be legitimately refused where, as here, irrespective of the significant possibility of legal error, the order was a reasonable, fair and equitable resolution of the dispute or no better result can reasonably be expected on appeal.
The context
The respondent Chamber of Commerce is an incorporated association. Its stated objects are to (a) assist building and promoting Tin Can Bay businesses and (b) promote tourism in Tin Can Bay and surrounding area.
It also has general power under model rules to contract and deal with property. The management committee has more specific control over its assets and “power to borrow, invest and secure the association’s property”.
The respondent operated a residential low powered open narrow casting (LPON) service at Kybong 88FM until its license lapsed on 23 May 2016.
On 15 October 2012 the applicant agreed to purchase its adjacent 88FM LPON radio licence 514643 (“Kool Kountry” Gympie) for $5,000.
According to the respondent the full purchase price was payable by annual instalments over five years from 1 November 2012 but reduced to $3,000 if the spectrum was discontinued after a scheduled review on 31 December 2015.
On the applicant’s account, however, a pencil line drawn between schedule B and C to the contract document indicates he had to a pay $1,000 for the licence and $1,000 a year over the next 2 – 5 years as “trailing payments” for an advertising package not part of the purchase price.
The applicant paid the first but no other instalments when due. On his case, therefore, the licence transfer transaction was complete and the dispute concerned only a debt for an advertising package.
The Gympie and Kybong licences could only be used to provide a LPON service within the 87.5 – 88 MHz frequency band using maximum transmitter power up to 1 watt for residential stations and issued only for the period for which the frequency has been made available under s 34 of the Broadcasting Services Act 1992 (Cth).
Licence holders are mutually required to avoid causing harmful interference to other radio communication stations or services.
The applicant purported to terminate for breach on 7 January 2014 on the basis that in breach of the licence conditions and an implied term of the purchase agreement the respondent was operating the Kybong station at 6W, 5W and 3W and interfering with his 1W broadcasting to such an extent that he couldn’t sell the station and despite continuing to broadcast up to 2016 lost substantial (but unquantified) advertising business.
The respondent conceded that it exceeded frequency limits on occasion but denies any performance breach or liability for any loss.
The tribunal decision
The tribunal was tasked with construing and enforcing the contract in accordance with the business like interpretation principle by reference to the (plain) text, context and purpose[1] of the contract document so as to give it a commercially convenient, common sense and “congruent operation”.[2]
[1]Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116-117.
[2]Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522, 529.
The tribunal also has a special statutory power to make an order it considers “fair and equitable” to the parties to resolve the dispute[3] subject to the overriding duty to act according to the substantial merits of the case.
[3]QCAT Act s 13(1).
The tribunal made no specific finding of a disqualifying breach of contract against the respondent but accepted that the respondent’s Kybong transmissions caused a significant degree of interference and loss of advertising revenue to the applicant but “…due to the fact, also, that (the applicant) used the licence over the period of time”[4] the tribunal reduced the applicant’s debt by 50% from $4,000 to $2,000.
[4]T1-21:25.
In other words, the tribunal effectively allowed an equitable setoff against outstanding contract payments by valuing the benefit of the broadcasting rights up to 2016 at $3,000 in total thus reducing liability under the contract to $2,000.
The terms of the order made in 31/2017 were clearly intended by the tribunal to discharge the applicant’s obligation for the licence not advertising.
The jurisdictional issue
The tribunal has jurisdiction for a minor civil dispute in a claim arising out of a contract between two traders[5] and, if it is exercised,[6] must make just and equitable orders[7] including that a stated amount (up to $25,000) is either payable or not due and owing by one of the parties to the other.[8] Wrongly refusing to exercise a jurisdiction conferred on the tribunal by the QCAT Act because of the misconstruction of a statutory term is an error of law.
[5]QCAT Act s 12(4)(c).
[6]QCAT Act s 15.
[7]QCAT Act s 13(1).
[8]QCAT Act s 13(2)(a)(i)-(ii), 16.
However, not every interpretation or jurisdictional error invalidates a decision or needs correction on appeal.
Even if the respondent is a trader within the QCAT Act the applicant’s claim in 32/2017 was for relief against the same debt in dispute in 31/2017 and in both cases his liability hinged on proof of breach and the effect of the rescission notice. Any offsetting compensation had to be linked to the breach and quantified properly.
The rescission issue
As presented, the resolution options available to the tribunal in 31/2017 were limited to either fully enforcing the contract or dismissing the respondent’s claim for breach of its terms.
The applicant’s complaint in this application is that the tribunal erred in holding him partly liable instead of dismissing the claim altogether. The respondent accepts the apportionment and does not cross-apply.
The tribunal impliedly found that despite his notice of termination in 2014 he had lost any right to terminate by continuing to enjoy the benefits of the licence for another two years. In other words, he had elected to affirm by conduct rather than rescind the contract. This finding was reasonably open on the facts and in law. The application for leave fails accordingly.
Assuming (without deciding) it had discretion under s 13(1) QCAT Act to compensate the applicant for advertising loss by partly rather than fully enforcing his contract liability, the downward adjustment of the price was arbitrary, and, as such, beyond power.
Even if he can demonstrate likely interpretation error in 32/2017 the applicant cannot point to a substantial injustice because it was held against him in 31/2017 that he had no right to rescind (or, if he did, had waived it) and there is no evidence that the measure of any compensable business loss traceable to reduced coverage attributable to a proven performance breach by the respondent was $2,000.
In his leave application the applicant blames the confusion surrounding 32/2017 being adjourned to the registry for being “unable to present documentary and other evidence of the costs … incurred” establishing the Gympie station or of cancelled advertising orders but his appeal material does not disclose the nature of that evidence or what he says it actually proves in dollar terms.
All things considered, a grant of leave to allocate more tribunal resources to this matter is not justified because, notwithstanding any arguable legal errors, re-litigating 32/2017 would be futile and the order in 31/2017 is not demonstrably productive of any substantial injustice to the applicant. On the contrary, he was arguably awarded more than a correct application of the law permitted or his material allowed.