Visual Values Pty Ltd v Gold Coast Show Society Incorporated
[2013] QCAT 20
•14 January 2013
| CITATION: | Visual Values Pty Ltd v Gold Coast Show Society Incorporated [2013] QCAT 20 |
| PARTIES: | Visual Values Pty Ltd (Applicant) |
| v | |
| Gold Coast Show Society Incorporated (Respondent) |
| APPLICATION NUMBER: | MCDO1268-12 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 28 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | John Bertelsen, Adjudicator |
| DELIVERED ON: | 14 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent pay to the Applicant the sum of $5,265.00. |
| CATCHWORDS: | Contract for provision of services – adequacy of services provided – if services were within the terms of contract – benefit or lack of benefit in respect of services provided |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gerri Ingram, Director & Peter Jones, Solicitor |
| RESPONDENT: | John Henderson, former General Manager and Dennis Stanfield, solicitor and committee member |
REASONS FOR DECISION
Application
The applicant claims the sum of $22,000.00 due pursuant to a contract entered into between the applicant and respondent for the supply of marketing services for the Gold Coast show held from 2 September to 4 September 2011. The applicant appeared in the person of Gerri Ingram, director, and the respondent in the person of John Henderson, former general manager. The applicant was represented by Peter Jones, solicitor and the respondent by Dennis Stanfield, solicitor of Gall Stanfield Smith. Mr Stanfield is also a committee member of the respondent.
Background and evidence
The applicant asserted that whilst the written contract was evidenced by the respondent’s letter of engagement dated 4 April 2011 rendering of services commenced as early as 23 February 2011. That was not contentious.
The letter of 4 April 2011 formally recorded Ms Ingram’s appointment as media and marketing coordinator and in 5 bullet points set out the services to be provided for the contract sum. The services to be provided were for and directed entirely at the 2011 Gold Coast show.
Mr Henderson terminated Ms Ingram’s services on 30 June 2011. He asserted dissatisfaction with the extent and quality of services provided by Ms Ingram, he said, initially in a telephone conversation on or about 13 June 2011; that to that time services provided were minimal and/or inconsequential; that there was no proper attention to or improvement in those services in the period 13 June 2012 to 30 June 2012; that as at 30 June 2012 there being no services of any consequence beneficial to the respondent being performed, he had no other option but to terminate the contract.
An unfortunate factor perhaps embarrassing to the parties themselves was that they had hitherto been friends.
Ms Ingram stated she initially asked for financial information; researched demographics, discussed issues relating to the 5 briefed points almost every week; that she worked on these issues over 20 weeks; meetings were always outside the respondent’s offices; that the decision to terminate her services was a show society board decision; that she had already done ¾ of the work; that she asked for written confirmation of termination that she never got. She stated that Mr Henderson did not express any dissatisfaction with her performance prior to 30 June 2012.
According to Mr Henderson, Ms Ingram asked for meetings at her house; that in fact all meetings took place at her apartment at her request at times suitable to her; that it was always the case that the show schedule would follow the previous year; that Ms Ingram remained detached rather than engaging in show preparation, sighting for example, Ms Ingram’s non-attendance at media meetings with Sea FM on 6 May 2011, Sun Newspaper 6 May 2011, Channel Nine 27 May 2011 and Hot Tomato 31 May 2011.
Mr Henderson stated there was no attempt to engage eg by coming to the show office to assess first hand show preparations. For instance, Mr Henderson stated that on 12 May 2011 Ms Ingram was asked to work on an advertising campaign and prepare a coordinated story line campaign for the Ms Show Girl competition, preliminary judging of which was on 4 July 2011 and final judging on 16 July 2011. According to Mr Henderson Ms Ingram indicated that she considered it too early. Mr Henderson produced substantial evidence in the form of a scrap folder in support of his contention that articles in respect of the show girl competition commenced on 25 May 2011 and that editorials and advertisements appeared on 1 June, 8 June and 30 June 2011. Subsequently further newspaper media coverage was provided on 13 and 27 July.
Mr Henderson further asserted that Ms Ingram’s contact with V8 supercars and the Gold Coast Bulletin had detrimentally affected the respondent’s relationship with those 2 entities, the first refusing to deal with the respondent so long as Ms Ingram was involved and the second, being the respondent’s principal media sponsor, responding by requiring the newspaper’s contract to be signed before any advertising took place. Mr Henderson stated that it was a time consuming effort to re establish a workable connection with these 2 entities.
Ms Ingram presented an invoice for $10,000.00 plus GST on 16 June 2011 (one half contract sum). There was no detail on the invoice to enlighten one as to what services had been performed to that time. Ms Ingram asserted that the phone conversation of 13 June 2011 or thereabouts in fact never took place; that there was never any written communication regarding non performance; nor any phone calls regarding non performance; that it was unreasonable to wait 28 weeks to be paid; that there was never any request for her to attend Gold Coast show offices; that she in fact had a good relationship with the Gold Coast Bulletin and in fact had other dealings with that entity; that in reality the relationship with V8 supercars was limited if existing at all; that Mr Henderson was distracted by his other business activities and would soon leave.
When put to her by the Tribunal as to what she considered was achieved in terms of 4 April 2011 letter of engagement Ms Ingram stated that:
a.Promotional partner confirmed that was offering a 2 week motor home holiday.
b.Sponsorships for the following year – some 50 local companies eg local car companies.
c.Designed the web page for online ticketing for the show. This was done with a view to attracting additional patrons to the show.
d.Upgrade the graphics for the President’s circular and graphically producing sponsor proposals.
e.Redraw site maps where they (sponsors) would be if accepted. These were attached to the graphics.
f.4 face to face meetings with 4 sponsors.
g.Face to face meeting with V8 supercars as well as radio and newspapers.
h.Concentrated on the key area of the fashion sector carrying out intensive research with a view to picking up that segment of the show.
i.Entertainment, approached several agencies regarding country music. That had previously been handled by an entity Aus Entertainment which was not to be engaged. Ms Ingram stated she sourced costs agents and who was available.
j.Contacted the green gold precinct which was only a one page draft from the Gold Coast show – contacted the award winning Bruce Mitchell Enviro. He on Ms Ingram’s assertion agreed to volunteer his time for that precinct of the show for that year ie 2011.
k.That most of May was spent attempting to arrange content and sponsorship.
Mr Henderson replied to, contested and queried the claims of services rendered as follows:
a.That the bulk of the work involved in the show girl competition occurred prior to 30 June 2011 in any event; that articles commenced on 25 May 2011 and proceeded through 1, 8 and 30 June 2011; that such was not an exercise involving a few hours work restricted to 2 newspaper articles; that it involved bringing the show girls together, photographers, a venue and ongoing publicity; that Ms Ingram’s non participation was encapsulated in her statement “its too early – haven’t got the time”.
b.That no follow up sponsors for 2011 show eventuated; that the bulk of proposed sponsors were Ms Ingram’s clients anyway; that Woolworths pulled out prior to 30 June 2011; that Brisbane Markets declined to participate.
c.That 50 local companies to sponsor the following year was irrelevant; that such did not translate into any benefit for the 2011 show; that a future or 3 year approach to service performance was a misapprehension on the part of Ms Ingram.
d.That the online web page remained a matter as between Ms Ingram and Austech; that it also never translated into any benefit for 2011 show.
e.That Mr Henderson was never the entertainment manager/coordinator; that the show always had an entertainment manager; that whether or not Oz Entertainment was involved with the 2011 show was irrelevant.
f.That if Ms Ingram had attended the show offices as requested she would have been aware that the green precinct was contracted out to an entity Eco.
g.That attendance at the respondent’s show offices would have had the beneficial effect of identifying what areas were a priority.
Conclusions
The contract between the parties was entered into on an unusually casual basis. The performance brief was clearly directed at the 2011 Gold Coast show only and that is the context in which Ms Ingram’s performance must be judged.
The reason for such informality was probably referable to the fact that Ms Ingram and Mr Henderson were to that point friends.
That both Ms Ingram and Mr Henderson appeared to have other business and engagements to attend to thus reducing the time allocated to the job at hand. This finding is supported by Mr Henderson’s involvement for some 3 days a week with Pacific Retails. That was never disputed by Mr Henderson. For Ms Ingram’s part her attention to other shows and the failure to ever attend the respondent’s show offices and engage with staff.
That reduced attention to the job at hand lead to a situation where Mr Henderson belatedly realized that precious little had been done in terms of Ms Ingram’s letter of appointment probably by about 13 June 2011 but certainly by 30 June 2011. One could reasonably surmise had Mr Henderson been fully attentive to lead time issues and preparations that Ms Ingram’s short comings in performance would have been identified much earlier. After all it was not disputed that Ms Ingram started providing services as early as 23 February 2011. It was over 4 months later and only 2 months before the show itself that the contract was terminated and Ms Ingram’s services dispensed with.
That did not relieve Ms Ingram of her duty to perform. She reminded the Tribunal on occasions of her 23 years vast experience and enthusiasm for the job at hand as well as her numerous Gold Coast contacts. She obviously held herself out as capable of working autonomously without direction.
Ms Ingram’s description of what she had achieved by 30 June when read against Mr Henderson’s reply (and reading Mr Henderson’s reply in its most limited context) leads to the conclusion that she most likely achieved, in terms of the performance brief, by 30 June 2011 the following:
a)Availability of a promotional partner offering 2 week motor home holiday (bullet points 1 and 3).
b)Designed the web page for online ticketing. That was in accord with ‘build on the pre-sell gate ticket strategy’ (bullet point 5) but got no further then design.
c)Upgraded the graphics for the President’s circular and graphically produced sponsor proposals (bullet point 1).
d)Redraw site maps for sponsor location (bullet point 1).
e)4 face to face meetings with 4 sponsors (bullet point 1).
f)Time spent May 2011 attempting to arrange sponsorship (bullet points 1 and 2).
By any measure that falls well short of expectations (a) in terms of the letter of appointment and (b) in terms of Ms Ingram’s purported vast knowledge and experience.
Ms Ingram’s approach seems to have been more directed to a 3 year plan on her part whereby after the 2011 show she might well have acceded to Mr Henderson’s position she being of the belief that he was leaving anyway. Some of her services were certainly directed to following years e.g. 50 local companies sponsorship.
Due to the short comings in performance the respondent was entitled to terminate. However some services beneficial to the respondent appropo the 2011 show were performed. The applicant is fairly entitled to some remuneration for those services on a quantum meruit basis. The respondent would be unjustly enriched by non recognition of those services and the applicant denied natural justice.
Any sum awarded on such a basis obviously contains, in this instance, an element of the arbitrary which is arrived at initially on overview of all evidence in the proceeding and more specifically by reference to the services rendered as a portion or percentage of services to be performed pursuant to the letter of appointment.
The Tribunal considers that approximately one quarter of the required services were performed by the applicant up to the 30 June 2011. On that basis the applicant is entitled to one quarter of the contract sum (ex GST) ie $5,000.00.
The respondent shall pay to the applicant the sum of $5,000.00. The application fee of $265.00 is allowed.
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