Vu v Tschernez - [2025] QCATA 45

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Vu v Tschernez [2025] QCATA 45

PARTIES:

THOMAS VU

(applicant/appellant)

v

NICK TSCHERNEZ

(respondent)

APPLICATION NO/S:

APL125-24

ORIGINATING APPLICATION NO/S:

Q1946-23

MATTER TYPE:

Appeals

DELIVERED ON:

30 April 2025

HEARING DATE:

19 March 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Leave to appeal is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – appeal of adjudicator’s decision that contract terminated by respondent not unfair, unreasonable – leave to appeal sought on basis adjudicator failed to give adequate reasons and erred in placing weight on parties’ conduct in assessing contract – contract did not provide for circumstance of respondent independently discontinuing service – Tribunal jurisdiction to declare contract term unfair under ACL

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146, s 147

Cachia v Grech [2009] NSWCA 232
Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Pisa v Rountree [2011] QCATA 64
Ritson v Ryan [2018] QCATA 148
Sanctuary Cove Golf and Country Club Pty Ltd v Machon [2019] QCATA 1

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

This is an application for leave to appeal a decision by an adjudicator in the minor civil dispute jurisdiction.
The appellant entered into an agreement with the respondent to undertake online guitar lessons. The appellant claimed that he was entitled to a refund of monies paid by him for lessons he did not undertake. The adjudicator dismissed the claim. The appellant seeks leave to appeal and, if leave is granted, to appeal the decision.
Appeals – the statutory framework
Leave to appeal[1] is required from a decision in the minor civil disputes jurisdiction. In deciding whether to grant leave to appeal the following considerations are relevant:
(a)Is there a reasonably arguable case of error in the primary decision?[2]
(b)Is there a reasonable prospect that the applicant will obtain substantive relief?[3]
(c)Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4]
(d)Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a)(i) (‘QCAT Act’).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, [13].
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
If leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vu v Tschernez

Details

AGLC: Vu v Tschernez [2025] QCATA 45
Case: [2025] QCATA 45
Decision Date: 30 April 2025

CaseChat Overview and Summary

The case of Vu v Tschernez involved an appeal against an adjudicator’s decision that the contract between the appellant, Vu, and the respondent, Tschernez, was terminated by the latter in a manner that was not unfair, unreasonable, or contrary to the Australian Consumer Law (ACL). The appellant sought leave to appeal on the basis that the adjudicator failed to give adequate reasons for the decision and erred in placing weight on the parties’ conduct in assessing the contract. The appellant argued that the contract did not provide for the circumstance of the respondent independently discontinuing service, and that the Queensland Civil and Administrative Tribunal (QCAT) had jurisdiction to declare a contract term unfair under the ACL.

The legal issues before the court were whether the adjudicator's decision was flawed in the grounds alleged by the appellant, and whether the appeal should be allowed. The court noted that if leave to appeal was granted, the Appeal Tribunal could confirm, amend, set aside, substitute, or remit the decision. An appeal on a question of fact or mixed law and fact required a rehearing. The court also noted that the contract was less than a model of drafting clarity, with apparent tensions between certain clauses and a lack of mention of the term or monthly fee payable by the student. However, the intent of the contractual provisions was clear, and the respondent clarified matters somewhat at the hearing below.

The court found that the adjudicator had provided adequate reasons for the decision and had not erred in placing weight on the parties’ conduct. The court also found that the contract did not provide for the circumstance of the respondent independently discontinuing service, but that this did not render the contract unfair or unreasonable. The court held that the contract was sufficiently clear and open, and did not offend the ACL. The court further held that the QCAT had jurisdiction to declare a contract term unfair under the ACL, but that this did not apply in the circumstances of this case.

Leave to appeal was refused.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[6] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.[7] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[8] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[9][6]QCAT Act, s 146.[7]Ericson v Queensland Building Services Authority [2013] QCA 391.[8]QCAT Act, s 147(2).[9]QCAT Act, s 147(3).The decision by the adjudicator The adjudicator made the following findings:(a)The parties entered into a contract for the provision by the respondent to the appellant of guitar lessons;(b)A monthly charge for the lessons was payable by the appellant by way of a direct debit in a fixed amount;(c)The appellant would attend lessons in accordance with an agreed scheduling process;(d)There were a significant number of occasions on which the appellant cancelled lessons principally as a result of a medical condition suffered by the appellant;(e)On a number of occasions the appellant, either personally or by family members, informed the respondent that he wished to continue with the lessons;(f)In circumstances where a student was unable to attend a lesson, the student was able to schedule a ‘catch up’ lesson at no cost to the student on the basis that the student would be credited for the cost of the lesson the student could not attend;(g)The contract was neither difficult to understand nor misleading;(h)The contract was not unfair simply because it permitted the respondent to unilaterally change the terms;(i)The contract was sufficiently clear and open that it could not be said to offend the Australian Consumer Law (‘ACL’);(j)During the term of the agreement the respondent had acknowledged that makeup sessions were readily available to the appellant;(k)The agreement was not unreasonable and did not offend the ACL and not agreeing to a cash repayment for unused lessons was a result the contract allowed for nor would the Tribunal impose such a result;(l)The term of the contract providing that the applicant was not entitled to a refund for the value of unused lessons was not unreasonable in circumstances where the appellant had clearly indicated that he could not afford the program or continue with the lessons for reasons peculiar to the appellant and not the respondent;(m)The adjudicator was not satisfied the contract terms were unfair or unconscionable or capable of being set aside. The adjudicator dismissed the proceeding. The grounds of appeal The grounds of appeal identified in the application for leave to appeal or appeal are:(a)The adjudicator failed to give adequate reasons for his decision;(b)The adjudicator erred in placing weight on the parties’ conduct in finding that the contract terms were not unfair.

Ratio Decidendi

Legal Principle Established

At the hearing of the appeal, the appellant expanded somewhat on these grounds although it must be said not in a particularly cogent way. Consideration As a preliminary observation it should be noted that some doubt attends whether a music teacher is a trader.[10] The issue was raised in the proceeding below. The Tribunal determined as a preliminary issue that the Tribunal had jurisdiction to decide the application. The decision was not appealed. The issue need not be further considered in this appeal. [10]Pisa v Rountree [2011] QCATA 64. See also Ritson v Ryan [2018] QCATA 148. The parties entered into a written contract, titled ‘Training Agreement’, by which the respondent agreed to provide online guitar lessons to the appellant. Of relevance in this appeal, the contract provided:(a)Clause 1: all memberships are exclusive and non-transferable. No refunds or makeup lessons will be given for any reason;(b)Clause 2: lessons will not be provided without prepayment by the student. These payments are to be made by direct debit on a monthly basis;(c)Clause 4: in order to withdraw from lessons and cancel the direct debit arrangement, the student is required to schedule a 15 minute withdrawal consultation before the 20th of the month, at which time the student is required to complete a withdrawal form. Withdrawals by email text message or phone will not be accepted. The teacher reserves the right to discontinue lessons at any time for any reason. No refunds will be given for any reason;(d)Clause 6: a failed payment by a student will result in suspension from classes until the non-payment is rectified;(e)Clause 8: the student is responsible for scheduling training sessions using the ‘Full Slate’ software. Rescheduling is subject to available spaces and unused class credits expire upon withdrawal or suspension of the student’s account;(f)Clause 15: the respondent reserves the right to modify ‘these policies’ at any time and the student agrees to be bound by such modifications upon notice being emailed to the student. It may be fairly observed that the contract is less than a model of drafting clarity. For example, the contract makes no mention of the term or the monthly fee payable by the student. Presumably the parties intended that the contract continue indefinitely until ended in one of the ways provided for in the agreement. There is an apparent tension between clause 1 which provides that no makeup lessons will be given and clause 8 which permits the student to reschedule lessons. It is difficult to apprehend the difference between a makeup lesson and a rescheduled lesson. Both may be understood as lessons not taken at an originally scheduled time and taken at some subsequent time. At the hearing below the respondent clarified matters somewhat, explaining that ‘no makeup lessons’ meant that lessons would not be scheduled outside the class timetable. If this was intended greater care should have been taken in drafting the provision. Regardless, the intent of the contractual provisions is clear. If a lesson was scheduled and not taken, the student would accumulate a credit for the lesson entitling the student to take the lesson at a later time at no additional cost. This is referred to in clause 8 of the contract as a ‘class credit’.