S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor
[2016] QCAT 446
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor[2016] QCAT 446
- Add to List
S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor[2016] QCAT 446
S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor[2016] QCAT 446
CITATION: | S&M Balla Pty Ltd v Queensland Jet Blasting Pty Ltd & Anor [2016] QCAT 446 |
PARTIES: | S&M Balla Pty Ltd (Applicant) |
v | |
Queensland Jet Blasting Pty Ltd Jim’s Group Pty Ltd (Respondent) | |
APPLICATION NUMBER: | MCDO1001-16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 21 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Franchise agreement – Tribunal’s limited Minor Civil Dispute jurisdiction – whether applicant a consumer or trader Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]By application filed 24 May 2016, the applicant S&M Balla Pty Ltd seeks $25,000.00 refund being the initial franchise fee paid for a Jim’s Skip Bin franchise on 11 August 2015.
- [2]The applicant in the persons of Mr and Mrs Balla said it was represented that the skip business would earn between $7,000.00 - $10,000.00 per week.
- [3]The franchise agreement of 11 August 2015 involved four parties namely, S&M Balla Pty Ltd as franchisee, Stephen George Balla and Marlene Andriana Balla as guaruntors, the national franchisor Jim’s Group Pty Ltd and the regional franchisor Queensland Jet Blasting Pty Ltd. There was also a Jim’s Skip Bins (Qld) regional disclosure document dealing with, but not limited to fees, advertising, territory and the like.
- [4]In short, the applicant asserted that the franchise never generated the sort of income represented, nor was ever capable of generating the sort of income represented, nor did the franchisors provide the support represented.
- [5]The initiating application in seeking a refund based its claim on a number of grounds including the failure to act in good faith, failure to maintain and include information in a disclosure document, instigating a franchisee to breach the agreement, failure to advertise and causing a franchisee to surrender the franchise before insolvency.
- [6]In addition, it was asserted that Mike Cates, director of Queensland Jet Blasting Pty Ltd was a declared bankrupt.
- [7]Mediation was set down for 11 August 2016. Queensland Jet Blasting Pty Ltd did not attend. Sometime prior on 14 June 2016, Jim’s Group Pty Ltd of its own volition it would appear made a written submission to the Tribunal regarding the Tribunal’s jurisdiction to hear the initiating application.
- [8]On 5 September 2016, S&M Balla Pty Ltd made numerous applications to the Tribunal regarding witness production (Queensland Jet Blasting Pty Ltd), document production (Jim’s Group Pty Ltd), witness production (Dave Estabrook), witness and document production (Colin Kaine), and witness production (Mr Allenby).
- [9]Subsequently on 6 September 2016, the Tribunal made formal orders as follows:
- The Applicant is to file and serve submissions as to the Tribunal’s jurisdiction to hear the matter and whether the proceeding should be referred to the Magistrates Court within 14 days.
- The Respondent is to file and serve submissions in response within 14 days.
- The question of whether the Tribunal has jurisdiction will be determined on the papers.
- The hearing of 19 September 2016 is adjourned to a date to be fixed.
- [10]In submissions filed 19 September 2016, Mr and Mrs Balla asserted:
- They were consumers who bought goods and services from Jim’s Group Pty Ltd and Queensland Jet Blasting Pty Ltd;
- That they registered a company to operate/use these goods, that is to say they were not traders;
- That their consumer/trader dispute involved a dispute against a trader or company arising out of a contract for the supply of goods and services valued up to and including $25,000.00. They said they wanted QCAT to make a decision as a minor civil dispute.
- [11]Jim’s Group Pty Ltd in its submissions asserted that the minor civil disputes jurisdiction (as far as this application was concerned) was about whether there was a debt or a liquidated demand of money, or a claim arising between a consumer and trader or two or more traders.
- [12]It was stated that the initiating application sought a refund of money based on allegations of failure to act in good faith etc. as set out above in paragraph [5].
- [13]It was asserted that none of these allegations related to a debt or liquidated demand for money. The Tribunal agrees that the application cannot be construed as a claim for a debt or liquidated demand for money. It is well settled in the Tribunal that an application for a refund cannot be construed as a debt or liquidated demand for money.
- [14]As to whether there is a dispute arising out of a contract between a consumer and trader, or between two or more traders, it was submitted that none of the parties were consumers. The Tribunal is of the view that the franchise agreement was entirely a commercial arrangement involving three corporations and guarantors. Nor can it be said that the franchise agreement was an agreement between two or more traders.
- [15]The Tribunal’s appeal decision of Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 is relevant here. In that decision, Her Honour Judge Kingham stated:
The definition of trader in the QCAT Act is both inclusive and exclusive. It is inclusive in that it encompasses activities carried out in trade or commerce but then excludes such activity where the person acts in the exercise of a discipline not normally associated with trade or commerce.
- [16]Jim’s Group Pty Ltd submitted:
- That Queensland Jet Blasting Pty Ltd was simply a sub-franchisor of Jim’s Group Pty Ltd;
- That it did not carry on business of supplying goods;
- That it did not supply services directly to members of the public, nor did it supply services within a discipline that is ordinarily regarded as within the field of trade or commerce; and
- That it only provided guidance, training, support and management of franchisees generally pursuant to the franchise agreement.
It was submitted therefore that Queensland Jet Blasting Pty Ltd could not be construed as a trader within the meaning of the QCAT Act.
- [17]It was then submitted that:
- Jim’s Group Pty Ltd was a national franchisor;
- That it did not carry on a business of supplying goods;
- That it did not supply services directly to members of the public, nor did it supply services within a discipline that would ordinarily be regarded as within the field of trade or commerce;
- That it only provided guidance, training, support and management of franchisees generally, and that therefore it could not be construed as a trader within the meaning of the QCAT Act.
- [18]It was conceded, however, that S&M Balla Pty Ltd might possibly be considered to be a trader within the meaning of the QCAT Act.
- [19]In summary, Jim’s Group Pty Ltd asserted that the relationship was one of national franchisor, sub-franchisor and franchisee; that none of the parties were consumers as such (with potentially only one i.e. S&M Balla Pty Ltd that might be considered a trader); that such being the case the initiating application was not a claim arising out of a contract between two or more traders.
- [20]In finality, it was asserted that the nature of any services which might be found to be offered by Queensland Jet Blasting Pty Ltd or Jim’s Group Pty Ltd were not services which would normally be associated within the field of trade or commerce, but rather were pursuant to a private contractual relationship governed by a comprehensive and express franchise agreement.
- [21]The Tribunal is of the view that the franchise agreement was a one-off commercial contract not involving traders or consumers, but rather exclusivity of operating rights and conditions within set parameters pursuant to that franchise agreement. S&M Ball Pty Ltd claims numerous breaches of that franchise agreement. If that were found to be so it would be entitled to damages. However, such a claim for damages is not within the purview of the Tribunal’s minor civil dispute jurisdiction.