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  4. Moraitis v Seriously Dance Australia Pty Ltd - [2016] QCAT 466

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Moraitis v Seriously Dance Australia Pty Ltd[2016] QCAT 466

Moraitis v Seriously Dance Australia Pty Ltd[2016] QCAT 466

CITATION:

Moraitis v Seriously Dance Australia Pty Ltd [2016] QCAT 466

PARTIES:

Allesandra Moraitis on behalf of Allegra Moraitis

(Applicant)

v

Seriously Dance Australia Pty Ltd ACN602804562

(Respondent)

APPLICATION NUMBER:

Q125-16

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

18 November 2016

HEARD AT:

Holland Park

DECISION OF:

Adjudicator Anna Walsh

DELIVERED ON:

2 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Application dismissed for lack of jurisdiction.

CATCHWORDS:

Minor Civil Dispute – Consumer Dispute – Jurisdiction – Queensland Civil and Administrative Tribunal Act 2009, Schedule 3 “Trader” meaning and effect – where Respondent is a dance school – whether the Respondent is a trader for the purposes of the QCAT Act

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3

Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65

Prestia v Aknar (1966) 40 NSWLR 165

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. [1]
    This Application was commenced by Paul and Todd Moriatis as a minor debt claim on 23 August 2016.
  2. [2]
    The Applicants claimed a sum of $1,750.00 paid to a travel agent for a planned trip to the United States and $272.50 for a refund of tuition fees for dance classes for their daughter and granddaughter respectively.
  3. [3]
    The initial hearing was adjourned and the parties invited to make submissions as to the jurisdiction of the tribunal to hear and determine the claim.
  4. [4]
    The Applicants responded by asking that the claim be determined as a consumer trader claim.
  5. [5]
    For the Tribunal to hear and determine the dispute on that basis there must be a contract between a consumer and a trader. As neither of the Applicants were parties to a contract with the Respondent, the application was amended to substitute Mrs Moraitis as the Applicant.
  6. [6]
    Notwithstanding the amendment and the changes in the nature of the claim they sought to put forward, I still held reservations as to the Tribunals jurisdiction. I adjourned the application and said I would make a decision as to jurisdiction on the papers.
  7. [7]
    The Respondents run a dance tuition school. Allegria Moriatis was a student at the school from April 2014.
  8. [8]
    Allegria was four or five at the time of enrolment so her mother Allessandria Moriatis signed the paper work including the code of conduct on her behalf. The code of conduct included a provision that “students and parents would act respectfully to staff teachers and others at all times whilst in the facilities and those found acting disrespectively will be asked to leave”.
  9. [9]
    In June 2015, the Respondent invited students to participate in an 8 day tour of California. The tour would include opportunities for students to dance at a number of venues as well as take classes at various LA dance studios and take part in a work shop at Disneyland.
  10. [10]
    To be involved in the dance activities on the trip, the child had to be a current student of Serious Dance.
  11. [11]
    The circular also stated the tour was open to everyone, not just students but also parents, brothers and sisters and grandparents
  12. [12]
    On 9 September 2016 Todd Moraitis paid $1,050.00 and Paul Moriatis $700.00 to TP World Tours by way of deposits to join the trip.
  13. [13]
    On 17 June 2016 Todd Moriatis paid the balance of $3,995.00 and Paul Moriatis $3,086.00 to TP World Tours.
  14. [14]
    On 24 June 2016 Allegra’s enrolment was cancelled due to alleged breaches of the code of conduct by her parents and grandparents.
  15. [15]
    Due to the cancellation of Allegra’s enrolment the family decided they no longer wished to participate in the trip. On notifying TP World Tours of their decision, the amounts of $3,995.00 and $3,086.00 were refunded by the agency but the agency refused to refund the initial deposits.
  16. [16]
    The Applicant seeks to recover those amounts plus $272.50 in overpayment of fees from the Respondent.
  17. [17]
    The basis of the claim is that due to the wrongful termination of Allegra’s enrolment Paul and Todd Moriatis have suffered losses, namely the forfeiture of the deposits.
  18. [18]
    The preliminary point to be determined is whether the Tribunal has jurisdiction to determine the application as a minor civil dispute.
  19. [19]
    A minor civil dispute is relevantly defined as:[1]

1 Minor civil dispute means—

…

  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount;…
  1. [20]
    Allessandra Moriatis on behalf of her daughter is an individual to whom services were supplied for fee or reward and is therefore a consumer.
  2. [21]
    Trader is defined in the Queensland Civil and Administrative Tribunal Act 2009[2] as:

1 A trader—

  1. (a)
    means a person who in trade or commerce—
  1. (i)
    carries on a business of supplying goods or providing services; or
  1. (ii)
    regularly holds himself, herself or itself out as ready to supply goods or to provide services of a similar nature;…
  1. [22]
    The definition is qualified by paragraph 2 of the section that says:[3]

2 However, a person is not a trader in relation to goods or services if in supplying the goods or providing the services—

  1. (a)
    the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce;…
  1. [23]
    The Respondent is a dance school, providing instruction in dance for a fee.
  2. [24]
    In Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro,[4] the then Deputy President, Judge Fleur Kingham considering this issue said :

If the exemption in the definition of trader in the QCAT Act is to have any application at all it must operate to exclude professionals whose disciplines are not ordinarily regarded as within the field of trade or commerce. A discipline is a branch of instruction or learning.

  1. [25]
    Her Honour then found assistance in the working definition of profession put forward by Santow K in Prestia v Aknar:[5]

This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence ,training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

  1. [26]
    The Respondent is a dance school run by two qualified dance teachers. In my view, the Respondents are not traders as contemplated by QCAT Act.
  2. [27]
    In the circumstances, the application is dismissed for lack of jurisdiction.
  3. [28]
    Although it is unnecessary for me to further consider the application there are two further matters that I consider worth mentioning.
  4. [29]
    This is a claim for damages for breach of contract consequent on the alleged wrongful termination of the enrolment of Allegra Moriatis at the dance school.
  5. [30]
    The rights of Mr Todd Moriatis and Paul Moriatis to participate in the tour were not affected by the cancellation of Allegra’s enrolment.
  6. [31]
    The cancellation of her enrolment only impacted on her ability to perform, not to attend the tour. It was their choice to cancel their travel plans.
  7. [32]
    Secondly there was no contract in existence between Mr Tood Moriatis and Paul Moriatis and the Respondent.
  8. [33]
    The contract for tuition was with Mrs Moriatis on behalf of her daughter. I have considerable doubts that these losses could be recoverable in a claim by Mrs Moriatis on grounds of remoteness.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3, definition of minor civil dispute.

[2]  Ibid, definition of trader.

[3]  Ibid.

[4]  [2010] QCATA 65.

[5]  (1996) 40 NSWLR 165, at pp 22-23.

Close

Editorial Notes

  • Published Case Name:

    Allesandra Moraitis v Seriously Dance Australia Pty Ltd

  • Shortened Case Name:

    Moraitis v Seriously Dance Australia Pty Ltd

  • MNC:

    [2016] QCAT 466

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Walsh

  • Date:

    02 Dec 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65
2 citations
Jump To
Cite 1 - [2010] QCATA 65
Cite 2 - [2010] QCATA 65
Prestia v Aknar (1966) 40 NSWLR 165
1 citation
Jump To
Cite 1 - (1966) 40 NSWLR 165
Prestia v Aknar (1996) 40 NSW LR 165
1 citation
Jump To
Cite 1 - (1996) 40 NSW LR 165

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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