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Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd[2021] QCAT 340

Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd[2021] QCAT 340

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd [2021] QCAT 340

PARTIES:

property manAgement virtual assistanT pty ltd

(applicant)

v

DC Electrical pty ltd

(respondent)

APPLICATION NO:

MCDO000444-20

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

28 September 2021

HEARING DATE:

23 September 2021

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Lember

ORDERS:

  1. 1.The respondent’s name is amended to “DC Electrical Pty Ltd”.
  2. 2.The respondent is to pay the applicant the sum of $1,742.40 by 31 October 2021.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute –  claim for debt or liquidated demand of money – whether terms sent by a link were incorporated into a contract

Competition and Consumer Act 2010 (Cth), Sch 2

Fair Trading Act 1999 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 13, s 102, Sch 3

ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204

ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224

ACCC v Servcorp Limited [2018] FCA 1044

Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379

Causer v Browne [1952] VLR 1

Hawkins v Clayton (1988) 164 CLR 539

Interfoto Pictures v Stiletto Visual Programs (1989) QB 433

Marcel v Cactus Towing Pty Ltd [2016] QCAT 532

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is the case about?

  1. [1]
    The applicant (“PMVA”) provides a service for the outsourcing, running and management of real estate property management businesses. The respondent runs a large team of electricians servicing, among others, the rental property maintenance industry.
  2. [2]
    From 11 December 2018 the respondent engaged PMVA to provide virtual assistance for the respondent’s business for an initial term of twelve months, and on an ongoing basis after that initial term expired.  The parties are in dispute as to what the terms of the ongoing engagement were, but, in any event, on 31 March 2020, the respondent sought to terminate the arrangement on the giving of thirty days’ notice.  
  3. [3]
    By an application for a minor civil dispute – minor debt filed 20 April 2020, the applicant seeks an order that the respondent pay the applicant the sum of $24,768, being the early termination fee provided for in clause 15.1 of the contract relied upon by the applicant.
  4. [4]
    In its response filed 10 May 2020, the respondent club seeks that the application be dismissed, among other reasons, because:
    1. (a)
      the contract did not include an early termination fee clause; or
    2. (b)
      if the contract did include that term, the term is an unfair term and unenforceable.
  5. [5]
    As a minor administrative matter, I amend the respondent’s name to “DC Electrical Pty Ltd” as the “Pty Ltd” was omitted from the application document.

The Contract

Forming the contract

  1. [6]
    On or before 8 November 2018 Ms Bowtell of the applicant and Mr Cluff of the respondent met to discuss the services that the applicant could offer the respondent.  Their discussions culminated in Ms Bowtell sending Mr Cluff an email dated 8 November 2018 sent at 12.31pm that said, among other things (my emphasis added):

Hi Aaron,

Congratulations! So glad you are coming on board.

The contract will be sent to you through Adobe Sign shortly. Once the contract is returned, I will send an email with the next steps.  The Contract start date will be Tuesday 15 January 2018 [sic] – this is when you begin paying for your VA.

..

Implementation Invoice attached

I have attached an Invoice for payment of the implementation cost.  Please arrange payment forthwith to get started.  48 hours to secure your place.

Once you have signed your contract please look out for an email from our head trainer...

If you have any questions please let me know.

Terms and conditions

http://www.pmva.com.au/business-services-agreement-june-2018-v2/  

[signature block]

  1. [7]
    Adobe Sign is a platform used for the electronic signature of documents. According to the Adobe Sign audit report, Mr Cluff was then sent a document for signing under the heading “PMVA – Business Services Agreement – DC Electrical”. 
  2. [8]
    The applicant confirmed that the document sent to Mr Cluff for signing comprised Schedule 1 and an execution page but omitted the eleven-page Business Services Agreement document (“BSA”) that could have been accessed by clicking on the “terms and conditions” link in the email.  PMVA explained in the hearing that administrative costs to attach the eleven-page BSA to the document sent in Adobe Sign would be prohibitive.
  3. [9]
    At 12.49 Mr Cluff sent the following reply:

Hey Tiffany

Thanks for coming and great to catch up.

Please find attached:

  • Signed service agreement
  • Payment receipt.
  1. [10]
    The applicant says the contract comprises the two-page document containing Schedule 1 and an execution page together with the eleven-page BSA.  
  2. [11]
    The applicant’s case relies upon the terms of the BSA forming part of the contract because:
    1. (a)
      Clause 2.4 provided for an “automatic extension” of the initial term in circumstances where:
      1. PMVA offers the client an extension term before the initial term ends and that offer is not accepted by the client; or
      2. PMVA does not offer an extension term to the client; and
      3. The client accepts services from PMVA after the initial term ends;
    2. (b)
      The period of the extension is “another term equal to the initial term”, being twelve months; and
    3. (c)
      Clause 15.1 provided that the agreement could not be cancelled other than pursuant to clause 2 or the sale of the client’s business and that “should you the client terminate the Agreement other than as permitted, the Client will pay a fee equivalent to the unexpired term to the end of this Contract”.
  3. [12]
    The respondent says the BSA never formed part of the contract. He does not recall if he ever saw the link to the BSA or clicked upon it.
  4. [13]
    Schedule 1 makes no mention of the BSA.  It provided for:
    1. (a)
      The client’s name being “DC Electrical”;
    2. (b)
      The commencement date being 15 January 2019;
    3. (c)
      The initial term being 12 months;
    4. (d)
      The agreed services to be provided being the PMVA business systems and procedures, the Virtual Assistants business and the provision of staff to undertake administration tasks;
    5. (e)
      The agreed allocation for virtual assistance was forty hours per week;
    6. (f)
      The implementation fee was $5,500 including GST;
    7. (g)
      The agreed hourly rate was $19.80 per hour for virtual assistance;
    8. (h)
      The agreement minimum hours per week was forty hours; and
    9. (i)
      The agreed payment amount was $1,584 per fortnight in advance using PMVA’s nominated payment system.
  5. [14]
    By an email dated 29 November 2018 sent 11.55am Ms Bowtell agreed to bring the commencement date forward to 11 December 2018.
  6. [15]
    Therefore, it is not disputed that the parties entered into a twelve-month contract commencing 11 December 2018.  The dispute is whether that term extended for a  further term of twelve months commencing 11 December 2019 or whether upon expiry it was terminable by the respondent upon reasonable notice to the applicant (and, in that case, what reasonable notice would be).

Ending the Contract

  1. [16]
    By an email dated 20 March 2020 the respondent indicated to PMVA that its business was beginning to drop off, impacted by COVID-19 restrictions on agents entering tenanted properties and wanted to explore the potential of standing down or temporarily cancelling services, cancelling services (in which case he asked what the notice period was) and, if services were cancelled, how difficult it would be to reinstate them.
  2. [17]
    There followed a phone call the content of which Ms Bowtell and Mr Cluff dispute. Ms Bowtell says she suggested dropping service hours from forty hours per week to thirty hours per week.  Mr Cluff says she offered to accept a termination of the contract on thirty days’ notice.
  3. [18]
    In any event, on 30 March 2020 the respondent sent a follow up email cancelling the contract that said, among other things:

…thanks for the open/transparent chat we had during the week.

After carefully [sic] consideration of the current and forecast trading conditions, we are unfortunately writing to provide a months’ notice to cancel our current arrangements with PMVA…  We would like to finish up Ivan on Friday 1 May.

…In the event Ivan does has [sic] a suitable employer before the 30 day notice period, we would happily allow him to move across and cancel our agreement sooner).

  1. [19]
    On 31 March 2020 PMVA sent an email to the respondent pointing the respondent to clauses 2.3 and 2.4 and that there was no unilateral cancellation right in the contract.  They also denied mention of a thirty-day notice period.
  2. [20]
    In direct reply the respondent requested a copy of the contract and queried what the phone discussion about a “30 day notice” period related to.
  3. [21]
    PMVA refused to provide the respondent with a copy of the contract, indicating “we won’t be able to locate this on your behalf as all out team are assigned to task and under the pump assisting our clients, you will need to find this with your admin staff”.    At the time this was said, the respondent was still a client of PMVA and was still contracted to receive administration services from PMVA.
  4. [22]
    Further requests by the respondent for a copy of the BSA were denied, and the respondent seems only to have finally received a copy of the BSA with the application to the tribunal.  
  5. [23]
    PMVA cited administration costs as being prohibitive in terms as to why they did not send the respondent a copy of the BSA.  They also said the link in their initial email to the respondent of 8 November 2018 always remained live and could have been used by the respondent to access the document at any time.
  6. [24]
    I am not convinced that is the case: namely, that the applicant’s weblink captured the point-in-time version of the document rather than updated versions if revisited.  This is because the BSA produced to the tribunal by the applicant has a copyright reserved statement dated “2019” and a print date of 16 April 2020.  I cannot be convinced on the face of that document, that it is the same version sent to the respondent on 8 November 2018. 
  7. [25]
    On 31 March 2020 a payment of $1,584.00 was deducted from the respondent’s account for the period 1 April 2020 to 13 April 2020, but by an email dated 1 April 2020, the respondent cancelled authority for any further deductions.
  8. [26]
    On 14 April 2020 PMVA issued an invoice to the respondent in the sum of $24,768 for 17.2 unit at $1,440 for the period 14 April 2020 to 10 December 2020, being their calculation of the fee payable for the balance of the unexpired term of their agreement.

Findings

Jurisdiction

  1. [27]
    Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) describes a minor civil dispute, amongst other things, as “a claim to recover a debt or liquidated demand of money, of up to the prescribed amount”.  The prescribed amount is currently $25,000.00.
  2. [28]
    I am satisfied that the applicant’s claim is a debt over which the Tribunal has jurisdiction.
  3. [29]
    Section 13 of the QCAT Act obliges the Tribunal to make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the Tribunal considers it appropriate, make an order dismissing the application.

Unfair terms

  1. [30]
    The Australian Consumer Law[1] protects consumers and small businesses from unfair terms in standard form contracts.  Unfair terms include terms that renew a contract automatically, which the respondent says clauses 2.3 and 2.4 of the BSA are.[2]
  2. [31]
    By section 9(3) of the QCAT Act, QCAT only has jurisdiction conferred by an enabling Act “if the enabling Act provides for an application, referral or appeal to be made to the tribunal in relation to the matter”.  Therefore, the tribunal has no jurisdiction to declare that a contractual term is unfair, nor to hear a defence relying on the unfair term provisions.
  3. [32]
    This is because the Fair Trading Act 1989 (Qld) does not permit an application to the tribunal about such matters. This also means that allowing a defence based on unfairness is outside the tribunal’s jurisdiction.[3] 
  4. [33]
    Therefore, to the extent the respondent relies on an argument that the application be dismissed on the grounds that the contract or its terms are unfair, that argument must fail for want of the jurisdiction to hear it.

Contracts – Express Terms

  1. [34]
    A legally enforceable agreement (contract) requires an offer, acceptance of that offer, consideration for the promises made and an intention to create legal relations.[4]
  2. [35]
    The terms must be certain, and the parties must have capacity to contract.
  3. [36]
    In the absence of a previous course of dealing between the parties, and in the absence of the BSA being included in the document sent to the respondent to sign, PMVA must establish that the terms of the BSA were brought to the attention of the respondent[5] prior to or at the same time as the contract was made so that the parties can be said to have agreed to the terms.
  4. [37]
    A reference to terms and conditions must be clear[6] and reasonable steps must be taken to draw the other party’s attention to them. Where the terms are particularly onerous or unusual, then better notice will be required even to the extent of bringing them expressly to the attention of the other party.[7]
  5. [38]
    Although not quite analogous to the present case, in “ticket” cases, courts have resisted finding that there is an implied consensual agreement between the parties unless the terms communicated are sufficiently specific for both parties' obligations to be ascertained. Parking signs that are “unclear, … obscured, damaged, or non-existent” or that are “not prominent or obvious” to the extent that the party must be taken to have accepted the terms when parking have been found to not form part of a contract.[8]
  6. [39]
    In Oceanic Sun Line Special Shipping Co Inc v Fay[9] the High Court found that:

If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract. But where an exemption clause is contained in a ticket or other document intended by the carrier to contain the terms of carriage, yet the other party is not in fact aware when the contract is made that an exemption clause is intended to be a term of the contract, the carrier cannot rely on that clause unless, at the time of the contract, the carrier had done all that was reasonably necessary to bring the exemption clause to the passenger's notice … In differing circumstances, different steps may be needed to bring an exemption clause to a passenger's notice, especially if the clause is an unusual one. In the present case, the only step which the defendant took … before the fare was paid was the note in the brochure that the conditions of carriage were printed in the (unavailable) Passenger Ticket Contract. 

  1. [40]
    The current case is distinguished from typical ticketing cases because PMVA did not seek to incorporate the BSA terms after the contract was entered into, nor did they deliver them to the respondent in circumstances where he was denied a real opportunity to read them.
  2. [41]
    However, the BSA contained an automatic renewal clause – and I am satisfied that the effect of clauses 2.3 and 2.4 were to create an automatic renewal of the term – being a clause that was onerous and unusual and, as such, PMVA had an obligation to take reasonable steps to bring the terms of the BSA to the respondent’s attention.
  3. [42]
    In considering whether including the link to the BSA terms and conditions in the 8 November 2018 email are “reasonable steps”, I note the following:
    1. (a)
      the BSA was sent to the respondent via a link in an email and not in an attachment or printed (electronic or otherwise) document;
    2. (b)
      the link was not contained in the paragraph of the email that referred to “the contract”;
    3. (c)
      the link was included in a line immediately above a signature block to an email and below what might be regarded as a “sign off” line that referencing “any further questions”;
    4. (d)
      unlike the payment/invoice terms which were under a heading in “bold” font, the heading “terms and conditions” was not in bold font; and
    5. (e)
      unlike the discussion of “the contract” and the payment/invoice terms, there was no sentence structure or text commentary around the terms and conditions that otherwise would have drawn attention to them.
  4. [43]
    In short, the link was, if not obscured, then certainly not prominent or obvious, not located where the discussion of the contract otherwise took place and situated unobtrusively in a line above the signature block, and, in those circumstances, I am not satisfied that reasonable steps were taken to bring the BSA’s terms and conditions to the respondent’s attention.
  5. [44]
    I place considerable weight on the fact that PMVA’s offer email of 8 November 2018 refers to sending “the contract” to the respondent to sign via Adobe Sign.  A reasonable person reading that would be entitled to assume that what would follow would form all of “the contract” between the parties and that an opportunity to read “the contract” would be afforded in the Adobe Sign system.  The email did not refer to sending “the schedule” or “the execution page” but “the contract”.  Yet, the BSA was not included in “the contract” sent to the respondent and Schedule 1 and the execution page made no reference to the terms and conditions or any extraneous document whatsoever.
  6. [45]
    PMVA’s explanation of the costs to attach the eleven-page document in the Adobe document being prohibitive was, with respect, a nonsense, particularly given they hold themselves out as being experts in administrative efficiency.
  7. [46]
    Further after the respondent signed “the contract”, what was sent back to the respondent by PMVA (via Adobe Sign) also did not include a copy of the BSA.
  8. [47]
    Finally, none of the respondent’s conduct is consistent with the respondent acting in way that would suggest the respondent read and accepted the terms and conditions of the BSA prior to signing the execution page and accepting the terms of Schedule 1.
  9. [48]
    For the reasons given I find that the BSA did not form part of the express terms of the contract between the parties.

Contracts – Implied Terms

  1. [49]
    If the terms of a contract are not clear on their face, the question is whether terms can be implied to make the agreement a contract.
  2. [50]
    On this point, PMVA argue that:  
    1. (a)
      the terms of the BSA were sent to the respondent with the contract offer;
    2. (b)
      the terms of the BSA were performed and relied upon by both parties (for example, by the respondent engaging a replacement assistant); and
    3. (c)
      Schedule 1 read alone cannot comprise a contract because its terms are incomplete and to read it alone in the absence of the BSA would be a nonsense. 
  3. [51]
    The latter argument seems to suggest that if the BSA terms were not express terms of the contract then they were necessarily implied.
  4. [52]
    In Hawkins v Clayton[10] Justice Deane said:

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.

  1. [53]
    I am not satisfied that the terms of the BSA are or should be implied into the contract because Schedule 1 can stand alone as it clearly provides for:
    1. (a)
      the price,
    2. (b)
      the term,
    3. (c)
      the payment methods,
    4. (d)
      the services, and
    5. (e)
      the required and minimum hours for service provision.
  2. [54]
    Finally, as a matter of evidence I am not satisfied that the document produced to the tribunal as the BSA 2018 version that was sent to the respondent and, on the applicant’s argument, accepted by the respondent is a reliable copy of that document because:
    1. (a)
      the copyright date printed on the document is “2019” from which an inference might be drawn that it is an updated version of an earlier document; and
    2. (b)
      the applicant did not otherwise lead any technical evidence that would confirm the veracity/date of production of the document (for example, web-caching or similar evidence); and
    3. (c)
      the applicant actively refused to send a copy of the BSA to the respondent despite several requests and in fact until tribunal proceedings were commenced, from which an inference might be drawn that the applicant could not readily locate a copy of that document.
  3. [55]
    In those circumstances, even if inclined to incorporate the terms of the BSA expressly or impliedly into the terms of the parties’ contract – which I am not – I cannot be satisfied that the BSA produced to the tribunal for the hearing is “the” BSA upon which the parties contracted.

Decision

  1. [56]
    The consequence of my findings is that the initial term did not renew and after the initial term expired, in the absence of an express notice period, the respondent was able to terminate the applicant’s services on reasonable notice.  
  2. [57]
    A rule of thumb might suggest that reasonable notice runs with payment terms, which in this case were fortnightly (according to Schedule 1).  A month’s notice where the parties had only dealt with each other for fourteen months is not disproportionate.    Whilst the applicant says it engaged a staff member for twelve months on the strength of the twelve month renewal term, I note that:              
    1. (a)
      no evidence of that was put to the tribunal (employment contracts, payslips or similar); and
    2. (b)
      no reasonable effort was made to explain or emphasis that in the BSA (where the early termination fee is imposed) or, as mentioned above, to bring the terms of the BSA that had the effect of a prolonged notice period, to the respondent’s attention.
  3. [58]
    As the respondent gave a month’s notice, and in the absence of any evidence that it is not reasonable, there is no basis upon which the applicant’s claim for payment of the early termination fee can succeed. 
  4. [59]
    The agreement between the parties therefore concluded on 30 April 2021 and the respondent owes the applicant the sum of $1,742.40 calculated as follows:
    1. (a)
      $1,584.00 for the fortnight commencing 14 April 2021 to 27 April 2021; plus
    2. (b)
      $158.40 ($1,584 x 3/30) for the three days from 28 April to 30 April 2021.
  5. [60]
    The applicant did not seek costs in its application and in any event under section 102 of the QCAT Act my ability to award costs is limited to the filing fee.  I decline to exercise by discretion to award costs in the current circumstances where the applicant has been, for the most part, unsuccessful in its claim.

Footnotes

[1]  Set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[2]  See ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, ACCC v Servcorp Limited [2018] FCA 1044 and ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204.

[3] Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1 at [39].

[4] Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546.

[5] Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 386.

[6] Causer v Browne [1952] VLR 1, Herring CJ (docket given when goods left for cleaning did not attract ticket cases principle because not proved that document would reasonably be understood as giving contract terms).

[7] Interfoto Pictures v Stiletto Visual Programs (1989) QB 433.

[8] Marcel v Cactus Towing Pty Ltd [2016] QCAT 532 at [26]-[27].

[9]  (1988) 165 CLR 197 at 15.

[10]  (1988) 164 CLR 539 at 573.

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Editorial Notes

  • Published Case Name:

    Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd

  • Shortened Case Name:

    Property Management Virtual Assistant Pty Ltd v DC Electrical Pty Ltd

  • MNC:

    [2021] QCAT 340

  • Court:

    QCAT

  • Judge(s):

    Adjudicator Lember

  • Date:

    28 Sep 2021

Appeal Status

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

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