WK Howard Trust t/as Automatic Solutions Underwood v Chase Manhattan Business Brokers Pty Ltd - [2013] QCAT 382

CITATION:

WK Howard Trust t/as Automatic Solutions Underwood v Chase Manhattan Business Brokers Pty Ltd [2013] QCAT 382

PARTIES:	WK Howard Trust t/as Automatic Solutions Underwood ABN 17151808184 (Applicant)
v
Chase Manhattan Business Brokers Pty Ltd ABN 84101372408 and Australia New Zealand Migration Publications ABN 33110502086 (Respondent)

APPLICATION NUMBER:

MCD035-13

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

12 June 2012

HEARD AT:

Beenleigh

DECISION OF:

Paul Favell, Member

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:	1. The application is dismissed.
CATCHWORDS:	MINOR CIVIL DISPUTE - arising out of a contract - contract for the supply of publishing services - whether breach

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Warren Howard and Kathrine Howard

RESPONDENT:

Peter Guifre for Chase Manhattan Business Brokers Pty Ltd
Bill Mumford for Australia New Zealand Migration Publications

REASONS FOR DECISION

The applicant seeks an order that the respondents, Chase Manhattan and Australia New Zealand Migration Publication refund $16,500.00 to the applicant.
On 7 May 2012, the applicant signed an advertising contract. Peter George came to their house and introduced them to the concept of selling businesses in the United Kingdom. The applicants say that Mr George placed them under pressure to sign an agreement saying that there was a seminar in June with respect to selling businesses to people who wanted to migrate to Australia and that they needed to act quickly. Mr George apparently was an employee of Chase Business Sales Network who were agents for Australia New Zealand Migration Publications.
They complain that their business did not sell and there were delays in having their business advertised by Australia New Zealand Migration Publications. Mrs Howard gave evidence on behalf of the applicant and told me that Chase Manhattan had a letter box drop after which they were visited by Mr George who had a business card describing him as Chase Manhattan seminar business broker. She could not produce that card because it was lost in the wash but she was adamant that the card made the connection between Mr George and Chase Manhattan Business Brokers. They say that after they were contacted by Mr George they agree to sign a contract and soon after that money was taken from their credit card. They say that they were told that a business like theirs would sell in three months and advertising would come out of the commission once the business was sold. They say that nine days after they signed the contract they were becoming concerned by not having heard from Chase Manhattan or the advertising consultant, they called and said that they wished to cancel it, and that they were within their rights within a ten-day cooling-off period. Apologies were made and discussions had. The applicant was concerned that it would miss the June publication and indicated that they really wanted to be represented in the magazine, for what they were told was to be the June conference in London. They complain that the publication did not go to print that month and upon finding that out, on 9 July 2012, they requested a refund. They were told that the money would not be refunded and the publication would be distributed overseas in mid-August. They received a copy of the publication which is Exhibit 10 on 11 October 2012.
Their complaints are they were over-promised, mislead and lied to. The agreement which was signed by the applicants was an agreement between them as the advertiser and the publisher, Australia New Zealand Migration Publications. It contained the agreement between the parties which included,
The publisher agrees to advertise the business/property for sale in the next two editions of the magazine available for publication after the date of this agreement. The publisher will not be liable for any failure to advertise the business/property on the publication date due to any matter that is reasonably beyond its control.
I was told on behalf of the publisher that they next two editions after the 7^th of May 2012 were mid-August and December. There was no June publication, but there was a June cut-off.
Also included in the terms of the agreement, was the following:
Upon the execution of this agreement, the advertiser shall pay to the publisher the sum specified in the Schedule in consideration for the advertising services to be provided by the publisher in the terms of this agreement. The advertiser acknowledges and agrees that by executing this agreement and paying the money specified herein a binding contract is concluded between the parties and that the publisher immediately commits itself to reserving appropriate space in its publication for the benefit of the advertiser. Subject to any rights or remedies the advertiser may have pursuant to the Commonwealth Trade Practices Act 1974 or other applicable law, the advertiser acknowledges and agrees that it shall not be entitled to any refund of the said monies in whole or in part.
I was told that by the time the applicant advised that they wanted to discontinue, work had been done on the publication and the applicants had had input into what was to be published.
On 5 July 2012 a request was made on behalf of the applicant for a refund of the advertising budget but acknowledging that they would pay for the ads that are on the webpage at an industry-standard rate. In that email they complained,
it has been two months and the web page ad has only just gone up with photo last week due to me calling again to ask them to be put there. We do not hold any confidence in your firm as the book has not printed as yet for Australia and New Zealand Migration. We would like to discontinue with this form of advertising as we hold no hope that this will sell the business.
The applicant in part relies on a decision of the New South Wales Consumer Trader and Tenancy Tribunal dated 6 March 2008 which names the respondent as Chase Manhattan Business Brokers. That decision was concerned with, in part, the actions of Mr George, who in that occasion was a representative of the named respondent. In that case it was said that there was a complaint that Mr George had put the applicants under pressure to sign on the spot and that he mislead them by guaranteeing that the business could be sold within six weeks. On that occasion, the contract which had been signed contained a clause as follows:
All advertising monies paid to Australia New Zealand Migration Publications will be refunded upon the successful completion of a sale by Chase Manhattan Business Brokers Ltd.
That is not the case with respect to Exhibit 10. The Tribunal there was satisfied of misleading and deceptive conduct in obtaining money from the applicants. It said,
The respondent as business agent would not have been entitled to payment of its commission until a sale was effected. By means of a supposed intermediary, the respondent created a scheme whereby a substantial payment could be obtained in advance independent of any sale and at a time when the prospective vendors were being subject to a high-pressure sales pitch by the respondent sale consultant. The representations made by Mr George to the applicants were without regard to their truth. They were made for the purpose of inducing the applicants to part with their money.
In that instance the Tribunal was satisfied that there was a link between both of the Respondents here and that the named respondent received a benefit from misleading and deceptive conduct.
On the material before me I am not satisfied that misleading and deceptive conduct has been shown.
In my view, there is a clear contract between the applicant and Australia New Zealand Migration Publications. It was clear on its face when it was signed on behalf of the applicant. The money was not paid to Chase Manhattan Business Brokers Pty Ltd but rather to Australia New Zealand Migration Publications. I am not satisfied that Mr George was an employee of Australia New Zealand Migration Publications. He may have been an employee of Chase Manhattan Business Brokers Pty Ltd.
As this is matter that is in the MCD jurisdiction, it must, in these circumstances, be a claim arising out of a contract. I am not satisfied that there is a valid claim arising out of a contract between the applicant and Australia New Zealand Migration Publications.
The appropriate order is that the application is dismissed.