Exit Distraction Free Reading Mode
- Unreported Judgment
Lockard Consultants Pty Ltd v AsteRX Pty Ltd QCAT 122
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords  QCAT 122
LOCKARD CONSULTANTS PTY LTD
ASTERX PTY LTD TRADING AS MEDIRECORDS
Other minor civil dispute matters
2 May 2019
21 March 2019
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – OTHER CASES – where QCAT application for minor debt – where contract for project management services – whether fixed daily fee an implied term – whether fee recoverable
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, 10, 11, 12, 28, 62, Schedule 3
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 43
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226
Codelfa Construction Pty Limited v State Rail Authority of NSW (1982) 49 CLR 337
Financial Advisers Australia v Mooney & Anor  QCATA 181
Hawkins v Clayton (1988) 164 CLR 539
Page v Jobbins  QCTA 147
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138
APPEARANCES & REPRESENTATION:
Mr A Moran, Director
Mr M Galetto, Director
REASONS FOR DECISION
- The Applicant’s claim arises out of a contract for project management services to the Respondent.
- The Applicant entered into an oral contract (the first contract) with the Respondent on 9 March 2018 to provide project management services relating to a proposed contract between the Respondent and Queensland Health. The Applicant invoiced a daily fee of $1,100.00 which was paid by the Respondent. The contract ended on 6 April 2018, when the Respondent and Queensland Health finalised their contract.
- The Applicant entered into another oral contract (the second contract) with the Respondent on 9 April 2019 for project management services. The Applicant says that the project management services “automatically rolled over from the initial contract negotiation period in to the project phase.”
- In relation to the second contract, for the period from 9 April 18 to the 17 June 2018, the Applicant sent seven invoices to the Respondent, and these were paid by the Respondent. Copies of these invoices are included in the Applicant’s documents. On each of the seven invoices, the description of the services provided includes the following:
Project Management Services
Develop a project schedule and related project services for implementation of MediRecord into Queensland Health HHSs
Daily Rate: $1,100.00
- The second contract was terminated by the Respondent on 13 July 2018 for various reasons. These are summarised in the Response at para j. and include lack of productivity, absenteeism from the Brisbane office and alleged breaches of confidentiality. The Applicant does not agree with the Respondent’s complaints and grounds for termination. However, the issue of termination of the contract is not in dispute in this application
- Applicant is claiming payment of $24,200.00, which is the total of two unpaid invoices for the second contract. The description of the services are identical to the invoices sent for the first contract, and the preceding seven invoices for the second contract.
- The original jurisdiction of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) sections 10, 11 and 12, limits jurisdiction to hear and decide a minor civil dispute. Relevant to these proceedings, section 12 defines a minor civil dispute as including:
- (a)A claim to recover a “debt or limited demand of money” up to $25,000;
- (b)A claim arising out of a contract between a consumer and a trader (where the applicant is a “consumer”), and
- (c)A claim arising out of a contract between 2 or more traders for payment of money up to $25,000.
- In relation to claims for money arising out of a contract between 2 or more traders, QCAT Act Schedule 3 specifies that a person is not a trader in relation to providing services if “the person acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce”. In this case, there is insufficient information regarding the nature of services provided by either party to make a finding as to whether both parties can be categorised are ‘traders’.
- In relation to claims arising out of a contract between a consumer and trader, the Applicant is the provider of contracted services and is clearly not a consumer of services in this matter.
- However, the claim can properly be dealt with as debt or liquidated demand, which has been described as “a sum of money that can be calculated by reference to a formula, schedule or some other yardstick by which the debt or sum payable can be readily calculated.” The contrary is a claim for money based on a discretionary or opinion assessment. QCAT’s Justice Carmody has further stated that the “claim must in law be a debt or liquidated amount – merely claiming a specific amount is not conclusive.” In this case, the Applicant alleges the contract rate for services was a fixed or flat daily rate of $1,100.00. QCAT has jurisdiction to deal with the matter as a claim to recover a debt.
- This raises an issue about the effect of initiating the proceedings as a consumer claim instead of a minor debt claim.
- QCAT Act s 28 requires, amongst other things, the tribunal to act fairly and according to the merits of the case, and to apply the rules of natural justice. The tribunal must also ensure that the proceedings are conducted with as little formality and technicality as appropriate in the circumstances.
- In Page v Jobbins  QCTA 147, the applicant filed a claim as a residential tenancy dispute, where the claim should have been filed as a minor debt. The Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) r 43, provided that no response was required for a residential tenancy application, whereas a response was required for a minor debt application. The Appeal Tribunal found that the “mere fact” that the wrong form had been used, did not necessarily mean that leave to appeal would be granted. The Appeal Tribunal considered the Tribunal’s obligation to ensure that the proceedings were conducted fairly, as required by QCAT Act s 62, and whether or not the Respondent had been denied natural justice because the Applicant had filed the wrong form and the wrong response procedures applied. In that case, the Respondent was found not to have been “taken by surprise” about the nature of the claims, and that there were detailed responses to the claims. The Appeal Tribunal held there had been no denial of natural justice concerning the decision of the Tribunal to hear the matter.
- In this case, the Respondent’s detailed submissions reflect a clear understanding of the nature of the Applicant’s claims, and address the substantive merits and issues in the matter. The Tribunal is satisfied that there is no denial of procedural fairness or injustice to the Respondent as a consequence of the incorrect form of initiating process. This matter will be dealt with as a claim for a debt or liquidated demand of money under QCAT Act ss 12(1) and 12(4)(a).
Daily Fee of $1,100.00
- At the time the second contract was terminated, the Respondent also requested the Applicant to provide details of the services referred to the last two invoices including the tasks carried out and time spent. Although, the Applicant provided some information, the Respondent says that the Applicant had “failed to record any details of the services he has provided, the time and effort and activities undertaken, [and] no time sheets or supporting material”.
- The Respondent claims that the daily rate of $1,100 was understood to mean that the Applicant would provide services for a full day’s work for that fee i.e. on a Time and Materials basis. Further, that if the Applicant “only worked for 2 hours or half a day for any given day, the expectation was that the invoices would reflect the pro-rata equivalent”. The Respondent says that the contracted services were not a ‘retainer’.
- The Applicant claims it was a term of the contract that the fee for services was a flat rate or fixed daily fee. Specifically, $1,100 per day. It appears from the Applicant’s submissions that this fee was to apply irrespective of the how or when the consultancy services were delivered. The Applicant relies on the first contract invoicing arrangements, and the previous seven invoices issued for the second contract, and paid by the Respondent, as evidence of the contract term for payment of the daily rate.
- The Respondent paid all the daily fee invoices for the first contract, and paid the seven preceding invoices for the second contract. All the paid the invoices contained the same description of services and claimed a daily fee of $1,100.00.
- The Respondent acknowledges that the invoices were “initially paid without questioning the time and effort attributed to the services described”, and that this was a ‘mistake’.
Was there an implied term about payment of the daily fee?
- The issue for the Tribunal to determine is this matter is whether there was an implied term of the contract that:
- (a)the daily fee of $1,100 was payable as a fixed or flat fee (irrespective of the type and duration of the services provided); or
- (b)the daily fee of $1,100 was a pro-rata fee based on time and materials supplied.
- A term may be implied (in fact) into a contract to give effect to the parties’ contractual intentions.
- In Codelfa Construction Pty Limited v State Rail Authority of NSW (1982) 49 CLR 337 (‘Codelfa case’) an implied term was described as one which should have been included in the contract, but was absent. It is a term, which “ … is presumed the parties would have agreed upon had they turned their minds to it – it is not a term that they have actually agreed upon.” Obviously, a term regarding how the services provided by the Applicant were to be accounted for and invoicing arrangements, should have been an express term of the contract, such as in a formal written contract, emails or other documentary record of the agreement between the parties.
- In BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 226, it was held by the Privy Council, that for a term to be implied there are five conditions that must be satisfied. They are it must be reasonable and equitable; necessary to give business efficacy to the contract; so obvious that “it goes without saying; capable of clear expression; and, not contradict any express term of the contract.”
- In this case, the assertions of both parties regarding the method of invoicing could meet those requirements. Therefore, it is necessary to consider the surrounding circumstances to assist in the interpretation of the contract and intentions of the parties.
- In the Codelfa Case, the High Court considered this approach and stated:
…evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be received as part of surrounding circumstances as an aide to interpretation, unless they were known to both parties…
- As to determining the intentions of the parties, it was stated in Hawkins v Clayton (1988) 164 CLR 539 that:
The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.
- In this case, it is necessary to consider the past course of dealings between parties which is relevant to the operation of the second contract.
- In the first contract, the Applicant regularly invoiced his services to the Respondent at the daily rate of $1,100. Aside from a broad description of the project management services, the Applicant did not particularise or account for details of services that he provided. The Respondent did not require the Applicant to provide a detailed accounting of the services provided. The Respondent paid the invoices without question. The situation was known to, and accepted by, both parties throughout the first contract and seven invoicing periods of the second contract. The past and current contract dealings of the parties are evidence that the daily rate invoiced by the Applicant was in the nature of a flat or fixed fee for services
- It was only after the Respondent conducted an internal review of the nature and scope of the services provided by the Applicant and terminated the second contract, that the Respondent required the Applicant to particularise the services delivered on a pro-rata time and materials basis in relation to the last two unpaid invoices.
- There is no evidence to support the Respondent’s claim that it was a term of the contract that the daily fee for services to be provided by the Applicant was subject to an accounting of the details of services provided, or that it was subject to pro-rata adjustments. Contrary to those claims, there is clear and consistent evidence of past course of dealings to support the Applicant’s claims that the services were to be provided at a fixed or flat daily rate.
- The Tribunal finds that it was an implied term of the second contract that the Applicant submit invoices for services at a fixed or flat daily rate of $1,100.
- The Respondent pay to the Applicant the sum of $24,538.20 being $24,200 for invoices numbered 646 and 648, and $338.20 filing fee.
- The Respondent pay the sum of $24, 538.20 by the 15 May 2019.
 Affidavit by Applicant dated 21 September 2018 at para 38.
 Application, Part C at para 18.
 Application, Part C at Attachment A items 6, 8-14.
 Application, Part C at para 18, Attachment A items 1 – 2.
 Lim v New College Queensland Pty Ltd & Ors  605 at .
 Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142.
 Financial Advisers Australia v Mooney & Anor  QCATA 181 at 
 Page v Jobbins  QCTA 147 at -.
 Response at para l.
 Affidavit of Matthew Galetto dated 3 December 2018 at para 2.
 Response, at para p and q.
 Response, at para g and z.
 (1982) 49 CLR 337 at 346.
 (1977) 180 CLR 266 at 283.
 (1982) 49 CLR 337 at 347.
 (1988) 164 CLR 539 at 573.
- Published Case Name:
Lockard Consultants Pty Ltd v AsteRX Pty Ltd t/as Medirecords
- Shortened Case Name:
Lockard Consultants Pty Ltd v AsteRX Pty Ltd
 QCAT 122
02 May 2019