Vu v Tschernez

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.