Walton v New Lakelands Pty Ltd

[2013] QCATA 49

CITATION: Walton v New Lakelands Pty Ltd [2013] QCATA 49

PARTIES:	Mr Alexander Walton Mrs Josephine Walton (Applicants/Appellants)
v
New Lakelands Pty Ltd (Respondent)

APPLICATION NUMBER: APL193 -12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 25 February 2013

DELIVERED AT: Brisbane

ORDERS MADE:

Leave to appeal refused. Application for interim or injunction dismissed.

CATCHWORDS:

MINOR CIVIL DISPUTE – whether grounds for leave to appeal

Queensland Civil and Administrative Tribunal Act2009, s137, 138

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr and Mrs Walton bought a family membership in the Lakelands Golf Club in 2005. New Lakelands Pty Ltd bought the club in 2006. It terminated the Waltons’ membership in 2011 because, it says, they had not paid their fees. Mr and Mrs Walton wanted New Lakelands to refund their “initiation fee” of $19,543.24. An adjudicator dismissed their claim.

2. Mr and Mrs Walton want to appeal that decision. They have concerns about the way the learned Adjudicator took evidence from the parties but their primary concern is that the learned Adjudicator was simply wrong in her interpretation of the law relating to the terms of the contract.

1. Because this is an appeal from a minor civil dispute, Mr and Mrs Walton must seek leave to appeal. The tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Mr and Mrs Walton shows a reasonably arguable case of error and a reasonable prospect that they will obtain substantive relief if the error is corrected.  

1. Under the membership plan in force when Mr and Mrs Walton bought their membership, the club could cancel membership: “by notifying the Member and repaying the Member the initiation fee (without interest or premium of any kind) paid to the Club when the Member joined…”. Under the membership plan in force at the time of termination, the Club could cancel membership with no obligation to refund initiation fees. The question for the learned Adjudicator was whether the original agreement applied or whether the new agreement applied. Because the dispute is solely a question of law, the learned Adjudicator’s error in process, if any, will not affect the validity of her decision.

1. On 29 August 2011, the tribunal ordered New Lakelands to produce documents relating to its purchase of the club. It did not comply with that order but it has included those documents in the submissions filed on appeal. The appeals tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined[1]. Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:

a)    The evidence could not have been obtained with reasonable diligence for use at the trial; 

b)    The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and   

c)    That the evidence is credible though it need not be incontrovertible.[2]

[1] ss 137 and 138 QCAT Act

[2]            Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408

1. The purchase contract is of particular interest. Although it was available at the time of the hearing, and New Lakelands has not explained why it did not provide a copy to the tribunal at the hearing, I consider that it will have an important impact on the result of the case. Mr and Mrs Walton asked for the document and New Lakelands refused to provide it. It should not benefit from its own non-compliance.

1. The learned Adjudicator focussed on two factors in her decision to dismiss Mr and Mrs Walton’s claim. The first was New Lakelands’ statement that none of the original membership fees passed to the new owner of the club. This is, at best, a disingenuous submission.

1. Clause 46.1 of the purchase contract states that the seller assigns the benefit of the membership agreements. Clause 57.3 states that the new owner will be bound by, and comply with, the terms of all memberships that exist at the date of sale. Clause 57.4 states that the seller will indemnify the new owner against claims by members in connection with memberships that existed at the time of sale, if the claim arose prior to the date of sale. Clause 64 requires the seller to send a letter to members stating, “The buyer has agreed to accept the current membership plan.”

1. Whether or not the new owner received any money from the existing memberships, it had a clear obligation to honour their terms.  New Lakelands acknowledged that obligation to its members in its letter of 2 January 2007, although not in the terms required by clause 64. The learned Adjudicator was led into error by New Lakelands’ submissions and its failure to disclose the terms of the purchase contract.

1. The learned Adjudicator dismissed Mr and Mrs Walton’s application because of Section 8.4 of the original membership agreement. It gives New Lakelands the right to modify or amend the membership plan at any time. The modifications take effect immediately upon posting a copy of the new plan in a conspicuous place at the Club, or upon mailing the amendments to members.

1. Mr and Mrs Walton say that this clause is unenforceable and void for uncertainty. They say that it is simply an agreement to agree and that the terms of the membership plan cannot be altered without agreement.

1. Mr and Mrs Walton’s submissions[3] about the requirements for implying a term into a contract are, with respect, misconceived. Section 8.4 is already a term of the contract. It is clear on its face. The members and Clubcorp have agreed that Clubcorp may change the terms of the contract without agreement and without consultation. New Lakelands acquired the benefit of that clause when it bought the business. It may, therefore, change the terms of the agreement “at any time” and without limit. It did change the terms and Mr and Mrs Walton are bound by the new terms.

   [3]            Relying on BP Refinery v Hastings Shire Council (1977) 52 ALJR 20 at 26

1. The new agreement states that New Lakelands can cancel membership rights and it “will neither refund any Initiation fees nor Annual dues to the Member “. However unpalatable, Mr and Mrs Walton are bound by the terms of the new agreement. The learned Adjudicator’ decision was correct.

1. There is no question of general importance that should be determined by the appeals tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.