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Petrina Alison v Az Nu Renovations[2022] QCAT 210

Petrina Alison v Az Nu Renovations[2022] QCAT 210

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Petrina Alison v Az Nu Renovations [2022] QCAT 210

PARTIES:

Petrina Alison

(Applicant)

v

az nu renovations Pty ltd t/a edge cabinets can 104 560 581

(Respondent)

APPLICATION NO/S:

APL240-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

13 June 2022

HEARING DATE:

13 June 2022

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Forrest SC

ORDERS:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The Orders made on 4 August 2021 are set aside.
  4. That the Respondent pay to the Applicant the sum of $11,234.62 in full payment of her claim, interest, and fees.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the Applicant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a minor civil dispute – where leave to appeal is granted – where the appeal is allowed

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RIGHTS OF AGENTS AGAINST PRINCIPAL – REMUNERATION OR COMMISSION – MATTERS DISENTITLING AGENT TO REMUNERATION – where the Respondent did not pay the Applicant the commission the Applicant was owed – where a Magistrate made an error of law – where the appeal is allowed

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 28, s 142(3)(a)(i), s 142(3)(b)

Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291

Pickering v McArthur [2005] QCA 294

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal and, if granted, an appeal against the orders of a Magistrate sitting as a Tribunal Member in a minor civil dispute.
  2. [2]
    The dispute between the parties arises out of a contractual arrangement between them.
  3. [3]
    In early 2015, the Applicant was engaged by the Respondent company, a cabinet maker, to generate and secure sales for their cabinet making business in the residential housing sector on the Sunshine Coast. Included in the service that the Applicant was to provide was the provision of plans, elevations, pricing estimates and liaison with the private clients and the builders in the task of completing the sale.
  4. [4]
    By the terms of the original agreement between the Applicant and the Respondent, the Applicant was to be paid a weekly retainer and a commission reduced by an amount to reflect the payment of the retainer. The retainer ceased being paid in October 2016 and the Applicant’s contractual remuneration changed to commission only after that, with a written agreement reflecting that change being signed by the parties in late March 2017.
  5. [5]
    The dispute in question particularly arises out of the circumstances surrounding a cabinet making job secured by the Applicant at a residential house construction project at Palmview. In January 2017, the building company that was constructing the house accepted the quote that had been provided for the provision of cabinet making services by the Applicant on behalf of the Respondent and placed a “Purchase Order” with the Respondent for the construction and supply of cabinetry for approximately $128,000.
  6. [6]
    The Applicant had been doing work in preparing that quote and securing that sale from around the middle of 2016. Her commission on the sale was just a bit in excess of $10,000.
  7. [7]
    The building company that accepted the quote paid the Respondent the sum of $40,000 on placement of the Purchase Order as required by the Respondent to secure the job. However, the Respondent was owed money by the building company for work it had undertaken for the building company on other jobs and simply told the building company that it would offset that other debt to the sum of the $40,000 paid and would require payment of another $40,000 to secure the cabinet making job that the Applicant had managed to obtain for the Respondent.
  8. [8]
    The building company did not pay that and took the cabinet making job elsewhere.
  9. [9]
    The Respondent did not pay the Applicant any of the commission she had earned on the sale, but obtained legal representation and pursued the building company for money it still owed the Respondent. The Respondent had personal guarantees from the directors of the building company and lodged a caveat on their home in an attempt to recover payment. An action to recover money owed was commenced in the Brisbane Magistrates Court by the Respondent against the building company in December 2017. The sum of $17,781 was claimed as owing, including over $10,000 for the work the Applicant had done in preparing the quote that had been accepted by the builder at the Palmview construction job.
  10. [10]
    Those legal proceedings were ultimately compromised by the Respondent for the agreed sum of $17,800, which the Respondent was paid.
  11. [11]
    The Applicant, upon hearing that the Respondent had received payment of $17,800 in settlement of its claim, then sent an invoice to the Respondent for the sum of $12,887.40 plus GST, being the commission she claimed she was owed in connection with the Palmview construction job. The Respondent did not pay the amount and disputed the Applicant’s right to it.
  12. [12]
    Not being able to resolve their dispute, the Applicant commenced the minor civil dispute in this Tribunal.

The First Instance Decision

  1. [13]
    The Magistrate heard the matter with both parties being heard remotely by telephone. Her Honour dismissed the Applicant’s Claim, finding, based on her consideration of the terms of the contract, that the commission was only payable to the Applicant by the Respondent if the cabinet making job had been completed and the Respondent had received full payment from the building company for that work.
  2. [14]
    The Applicant, unhappy with that outcome made application for leave to appeal and, if granted, appeals against the first instance decision. 

The Appeal

  1. [15]
    Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained before any appeal proceeds.[1]
  2. [16]
    Leave to appeal is also required where an appeal is in relation to questions of fact and/or mixed fact and law.[2]
  3. [17]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[3]
  4. [18]
    Unsurprisingly, the unrepresented Applicant has not set out grounds of appeal in the usual form. However, I interpret her appeal to be based on an argument that the learned Magistrate erred in determining that the terms of the contract precluded payment of the commission to the Applicant unless and until the Respondent had received payment in full from the builder for the completed job, a determination that was not available on the evidence that was before the learned Magistrate.

My Determination

  1. [19]
    The parties agreed for this Application for leave to appeal, and the appeal itself, if the application was successful, to be heard on the papers.
  2. [20]
    I have read and considered all of the material that was before the learned Magistrate and read and considered the Applicant’s document titled “Grounds of Appeal”. I find that there is merit in the Applicant’s appeal.
  3. [21]
    The learned Magistrate had before her a copy of the original written agreement made by the Applicant and the Respondent in 2015. It was attached to the Applicant’s original application to the Tribunal that the Applicant said was prepared by a solicitor. I am satisfied that the learned Magistrate was heavily influenced in her decision making by the wording of clauses 5.7 and 5.8 of that document. They provided:

When the Company receives full payment from their client for services provide, the Commission as outlined in Schedule 1 is calculated.

The Contractor is to provide the Company with a Tax Invoice for the individual Contractor’s fees (commission) in accordance with clause 5/5 and Schedule 1. The Company will pay the Contractor within 7 days of receipt of a valid Tax Invoice from the Contractor and only after the client has paid the Company their invoice in full. (my emphasis)

  1. [22]
    However, during the hearing, the Applicant told the learned Magistrate that the document just referred to was the old contract and had been superseded by a new one reflecting terms of a fresh agreement between the Applicant and the Respondent that commenced from the end of October, 2016 in which she went from the retainer plus commission model to just the commission model. The documentary evidence supports that submission and there is nothing in the transcript of the hearing to suggest that the Respondent did not accept that as fact. Indeed, my reading of the transcript causes me to conclude that the learned Magistrate accepted that as fact.
  2. [23]
    The agreement which applied from the end of October 2016, evidenced by the written document that was signed by the parties in March 2017, was sent to the Tribunal by the Applicant during the course of the hearing. It was received by the learned Magistrate who invited further submissions from the Applicant in respect of it.
  3. [24]
    Again, the learned Magistrate referred to clause 5.6 in this written agreement as confirming her Honour’s previously stated view that the Applicant’s commission was not payable until the Respondent company had been paid in full for the work done in completing the cabinet making job secured by the Applicant.
  4. [25]
    It is in my view significant to point out though, the difference in clause 5.6 as it is in the second written document. It provides:

The commission as outlined in the Commission Scheme is paid when the Company receives full payment from their client for the services provided. 

  1. [26]
    The Applicant had made oral submissions that the “services” referred to in this contract were the services that she provided and not the cabinet making services that the Respondent provided. That submission was not addressed on the face of the learned Magistrate’s reasons. I consider there is merit in the submission.
  2. [27]
    The term “services” is defined in the Clause 1 Definitions section of the contract to mean “the services described in Item 4 of the Schedule”.
  3. [28]
    Item 4 of the Schedule defines “services” as follows:

Provide sales for cabinetry in the residential sector within Queensland above $60,000 per month. This is inclusive of (but not limited to) the provision of plans, elevations, pricing estimates, servicing the builders or private clients & any other requirements necessary to complete the sale & maintain the image of [the Respondent].

  1. [29]
    In my judgment, that definition does not permit “services” to be considered to include the completion of the construction and installation of the total cabinet making job by the Respondent. If it did, it would mean that whenever a job for which the initial deposit was received was not completed by the Respondent for whatever reason, even one totally independent of any fault or responsibility on the part of the Applicant, there would be no obligation on the part of the Respondent to pay the commission to the Applicant for the services she had rendered in securing the sale. That is perhaps a fair interpretation of the relevant terms of the original contract. If it was intended by the parties to have been the true meaning of the later contract, then it would have been easily demonstrated by inclusion of clauses using the same words.  It was not.
  2. [30]
    Just as the Applicant submitted to the learned Magistrate, I am satisfied that the Respondent has received “full payment from their client for the services provided”. In actual fact, I am satisfied that they received such full payment twice.
  3. [31]
    The first was when the building company placed a Purchase Order with them in early 2017 and paid the sum of $40,000 pursuant to the requirement to pay such a deposit. That the construction of the cabinetry did not go ahead was attributable to the Respondent’s own decision to tell the building company that it treated that payment as part-payment of other outstanding monies instead of a deposit on the cabinet making job the Applicant had secured. It is completely unjust for the Respondent to then turn to the Applicant, when the building company chose not to pay anything further to the Respondent to again secure the cabinet making contract, and to say to her “sorry, you don’t get paid your commission now”.
  4. [32]
    The second was when the Respondent received $17,000 from the building company in settlement of its claim for payment of debt that included an amount claimed for the work that had been performed by the Applicant. In my respectful judgment, the learned Magistrate erred in not accepting the correctness of the submission by the Applicant that receipt of that amount reflected payment in full for the services she provided. It was, in my judgment, wrong of the learned Magistrate to determine that such amount simply offset the amounts that the Respondent had expended in legal fees over a period of several months, particularly where the evidence, unaddressed by the learned Magistrate, was that the legal fees were paid by the Respondent in the pursuit of other debt owed by the building company and not just the money the Respondent said was owed in respect of the work done by the Applicant.
  5. [33]
    It would be extremely unjust in the circumstances of this case for the Respondent to have received those two amounts of money in respect of work done by the Applicant for a sale she secured which did not turn into a completed job because of the decisions of the Respondent alone and for the Respondent to be left with no obligation to pay the Respondent for the work that she did unless it was absolutely clear on the terms of their contractual relationship that he had no such obligation. In my judgment, the terms of their contractual agreement do not provide for that, but rather to the contrary. The Respondent, I am satisfied, is liable to the Applicant for her commission in respect of the Palmview job.

Leave to Appeal 

  1. [34]
    Considering that a substantial injustice has been done to the Applicant by what I am satisfied were errors in the learned Magistrate’s approach to the determination, and being satisfied that there is also a significant public interest in the proper determination of this matter in dispute, I am satisfied that leave to appeal should be granted.

Outcome of the Appeal

  1. [35]
    I grant the Applicant leave to appeal and uphold the appeal and set aside the Tribunal’s decision. I substitute my own decision for the decision set aside. It is not in the interests of the parties to have to argue this matter again at first instance. I am satisfied that I am in as good a position as the Tribunal at first instance, with all the evidence and submissions before me, to be able to make a decision. 
  2. [36]
    My decision is that the Respondent should pay the Applicant the sum of $11,234.62 as is set out by her in her Application for Leave to Appeal filed 31 August 2021.  
  3. [37]
    I make the orders that are set out at the commencement of these written reasons.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i)

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b)

[3] Pickering v McArthur [2005] QCA 294

Close

Editorial Notes

  • Published Case Name:

    Petrina Alison v Az Nu Renovations

  • Shortened Case Name:

    Petrina Alison v Az Nu Renovations

  • MNC:

    [2022] QCAT 210

  • Court:

    QCAT

  • Judge(s):

    Member Forrest SC

  • Date:

    13 Jun 2022

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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