Voiceworks Australia Pty Ltd v Astor Hotel Motel Ptd Ltd
[2012] QCAT 214
•8 May 2012
| CITATION: | Voiceworks Australia Pty Ltd v Astor Hotel Motel Ptd Ltd [2012] QCAT 214 |
| PARTIES: | Voiceworks Australia Pty Ltd t/as Voiceworks Australia (Applicant/Appellant) |
| v | |
| Astor Hotel Motel Ptd Ltd t/as Astor Metropol Hotel and Apartments (Respondent) |
| APPLICATION NUMBER: | MCDO2309-11 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 16 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kevin O’Hanlon, Adjudicator |
| DELIVERED ON: | 8 May 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. If it has not already done so I order that the equipment be returned to the applicant within 7 days. 2. The application is dismissed. |
| CATCHWORDS: | Question of contract – services rendered – breach of contract – termination of contract |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Stephen Grives |
| RESPONDENT: | Mr P Churven |
REASONS FOR DECISION
This matter has come before the Tribunal after several intervening claims and applications have been dealt with since the original application was filed on 9 August 2011.
It is not necessary for the Tribunal today to delve into or reopen the intervening events since 9 August 2011. It is sufficient to have regard to the Order made in this Tribunal on 10 February 2012.
Consequently, the applicant seeks $1,269.16 for services it had provided to the respondent. During the course of the hearing it became evident that the applicant seeks return of the equipment furnished by it to the respondent. These claims are clearly rejected by the respondent.
The respondent in its defence says that he has paid for all relevant invoices set out in the claim by the applicant and furthermore says that it is not responsible for any of the invoices claimed by the applicant as and from 13 May 2010 as it had terminated the contract by virtue of its email letter dated 13 May 2010 (see exhibit 3).
Having regard to this correspondence tendered during the hearing (see exhibits 1 and 2), and from the oral evidence of both parties during the hearing, it is evident that the contract between the parties is incapable of being construed with any particularity or to arrive at the concise terms of the contract. On the one hand the applicant asserts it had provided the services and the voice recordings for the respondent company to use for its on hold messaging and on the other hand the respondent claims that the messages were either vague or not working at all and furthermore there is a claim and counterclaim as to whether the in-house messaging services were provided or if provided were sufficient for the purposes. In addition there appears to be a complete lack of goodwill by either party.
Mr Grives, on behalf of the applicant, attempted to place in evidence a USB flash drive stick which he claims he had recorded a few weeks before the hearing by phoning the Astor Motel and which indicated that the respondent was still at that time using his company’s on hold voice message. This is rejected by Mr Churven. Unfortunately, this Tribunal does not have the ability to accept the device into the hearing and it was not placed in evidence.
The respondent claims that the applicant failed to carry out the necessary recordings and those that were supplied were wrong and cost the company dearly in regard to, for instance, its car parking facilities. This counter claim is denied by Mr Grives on behalf of the applicant. Suffice to say that during the course of the hearing there is claim and counter claim as to what was received, what was requested and what was given. In any event it is not necessary for me to determine these issues. It is hard to arrive at the truth of the matter.
Nevertheless, it appears to this Tribunal that the only hard evidence available really points to the time of the contract remaining on foot between the parties. There is a letter from Mr Churven to Mr Grives dated 13 May 2010 in which the phrases such as “that you collect your equipment and recording from our premises as soon as convenient by prior nominated time an arrangement which you will need for access” and later, “only for the purposes of finalising this matter without further time involvement.”
It is therefore clear that the contract had been terminated as and from that date.
After that particular date invoices continued to be delivered and Mr Churven says they did not use the facilities and he was waiting on the applicant’s company to remove the equipment. In fact he says he does not know where the equipment is as it’s only very tiny and so far as he is concerned they had not used the facilities since then.
I accept the evidence of Mr Churven which is borne out by the email letter of 13 May 2010 and consider that it is not sufficient for Mr Grives to rely on the fact that the respondent had not returned the equipment.
Notwithstanding the applicant’s contention that it was the responsibility of the respondent to return the equipment (see exhibit 1 clause 1.8 of the agreement conditions) it is clear the contract has been terminated on 13 May 2010. Non removal of the equipment by the respondent does not enliven or keep the contract on foot.
Orders
If it has not already done so I order that the equipment be returned to the applicant within 7 days.
The application is dismissed.
0
0
0