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CITE

Unreported Judgment

Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid[2023] QCATA 96Member Lumb
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Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid[2023] QCATA 96

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid [2023] QCATA 96
PARTIES:	SPEDDING ESTATES PTY LTD AS TRUSTEE FOR THE SPEDDING FAMILY TRUST t/as SUMMERGROVE ESTATE (applicant/appellant) v DEAN KIMBALL REID (respondent)
APPLICATION NO/S:	APL260-22
ORIGINATING APPLICATION NO/S:	Q223/22
MATTER TYPE:	Appeals
DELIVERED ON:	17 July 2023
HEARING DATE:	16 June 2023
HEARD AT:	Brisbane
DECISION OF:	Member Lumb
ORDERS:	Leave to appeal is granted. The appeal is allowed. The decision made by the Tribunal dated 6 July 2022 is set aside. Unless, within 21 days of the date of these Reasons, Dean Kimball Reid (Mr Reid) files in the Tribunal a notice in the approved form withdrawing the Application for minor civil dispute – consumer/trader; property damage caused by a motor vehicle, filed on 26 April 2022, the Application is ordered to be transferred to the District Court at Southport for determination of the matter of whether any of the terms of the agreement between the parties dated 18 January 2021 are unfair terms and, if so, what (if any) relief or remedy should be granted to Mr Reid in relation to the amounts paid to Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate (Spedding Estates); If a notice of withdrawal is filed, Mr Reid must give a copy to Spedding Estates within 3 days of filing the notice. Each of the parties shall, within 21 days of the date of these Reasons, file in the Tribunal, and give to the other party a copy of, written submissions on the question of costs.
CATCHWORDS:	APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – consumer/trader claim – agreement for provision of wedding venue and associated services and accommodation – where agreement signed during coronavirus pandemic – where Queensland border restrictions in effect at time of agreed wedding date – where Adjudicator found agreement frustrated – whether leave to appeal should be granted and appeal allowed – whether the Tribunal had jurisdiction to determine issue about unfair terms Frustrated Contracts Act 1978 (NSW) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52, s 142, s 146 Australian Consumer Law (Cth), ss 23-28 Berry v Treasure & Anor [2021] QCATA 61 Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Davis Contractors Ltd v Fareham Urban District Council [1956] A.C. 696 National Carriers Ltd v Panalpina Ltd [1981] AC 675 O'Connell & Anor v P J Burns Buildings Pty Ltd & Anor [2022] QCAT 155 oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1 Saxer v Hume [2022] QCATA 25 Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3 Thors v Weekes (1989) 92 ALR 131 Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

Introduction

By an Application for leave to appeal or appeal filed on 2 September 2022 (the Appeal Application), the Applicant (Spedding Estates) seeks leave to appeal, and to appeal, a decision made by the Queensland Civil and Administrative Tribunal (the Tribunal) on 6 July 2022 (the Decision).^[1]

The Decision was made in a proceeding commenced by the Respondent to the Appeal Application (Mr Reid) by an ‘Application for minor civil dispute – consumer/trader; property damage caused by a motor vehicle’ filed on 26 April 2022 (the MCD Application). The nature of the dispute was a consumer/trader dispute. By the MCD Application, Mr Reid claimed a refund of $15,270.00 plus payment of the filing fee of $358.00. The refund sought comprised the total amount paid by Mr Reid (less $500.00) for provision of the wedding venue, wedding services and catering for the proposed wedding of Mr Reid and his partner at ‘Summergrove Estate’ on 15 November 2021. Summergrove Estate is operated by Spedding Estates and is located in northern New South Wales. Mr Reid cancelled the wedding on 10 November 2021 as a result of the ongoing coronavirus pandemic and the imposition of Queensland government border restrictions.
The hearing of the MCD Application proceeded on 6 July 2022. By the Decision, the Tribunal (constituted by an Adjudicator) ordered that Spedding Estates refund to Mr Reid the sum of $9,770.00 within 60 days of the date of the Decision. In short, the Adjudicator found that the agreement between Mr Reid and Spedding Estates in relation to the wedding had been frustrated at law and the Adjudicator made a deduction of $5,000.00 from the amount to be refunded to Mr Reid by way of reasonable or fair compensation to Spedding Estates, having regard to the Frustrated Contracts Act 1978 (NSW) (the FCA).

The Reasons below

The Adjudicator’s oral reasons, as recorded in the Transcript of the hearing, were lengthy. In summary, the Adjudicator found that:
1. (a)
  there was a written agreement between the parties comprising a document headed ‘Summer Grove Estate Terms and Conditions’ dated 18 January 2021 (the Agreement);^[2]
2. (b)
  the agreement was formed in New South Wales and New South Wales law was the applicable law;^[3]
3. (c)
  the Tribunal had jurisdiction to determine the dispute;^[4]
4. (d)
  the agreement included a term which contemplated the ‘Covid-19’ pandemic and potential government restrictions;^[5]
5. (e)
  it was not impossible to perform the agreement;^[6]
6. (f)
  however, having regard to an eight month delay that would result in the event of a rescheduling of the wedding and also the duration of the pandemic and existing Queensland government ‘bans’ or ‘restrictions’, the circumstances were fundamentally different from those contemplated (at the time of the Agreement) with the result that the Agreement was frustrated (the specific reasons for this conclusion are addressed below);^[7]
7. (g)
  given the finding of frustration, it was unnecessary to deal with the question of ‘unfair contracts’ (Mr Reid had contended that the ‘no refund’ provisions in the Agreement were unfair terms pursuant to the Australian Consumer Law), with the Adjudicator noting that there was an issue as to whether the Tribunal had jurisdiction to decide that issue in any event;^[8]
8. (h)
  the appropriate ‘restitutionary order’, having regard to the operation of the FCA, was that a refund of $9,770.00 should be made to Mr Reid after making an allowance of $5,000.00 by way of compensation to Spedding Estates.^[9]

The Grounds of Appeal

The Grounds of Appeal set out in the Appeal Application are stated as follows:

The Applicant's grounds for appeal of the Decision by Adjudicator Katter (“Decision Maker”) are as follows:

The grounds for the Decision contained various errors of law. In this regard:

(a)
the Decision Maker found that the agreement between the parties (recorded by way of booking forms, quote and terms and conditions (“Contract”)) was ‘frustrated’ which is wrong in so far as:

(i)
the agreement was able to be performed as contemplated without issue;

(ii)
border restrictions in Queensland were foreseeable;

(iii)
there was no restriction on the parties to perform the agreement as contemplated;

(iv)
performance of the agreement would not have been significantly different or any different from that originally contemplated in the agreement.

The Decision Maker erred in finding that the agreement could not be performed on 15 November 2021 in circumstances where it could.

(b)
the Decision Maker failed to enforce the force majeure clause of the Contract which provided that:

“In no event shall Summergrove Estate be responsible or liable, or provide any refund for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, acts of Mother Nature, nuclear or catastrophes (including a pandemic) or acts of God, and interruptions, loss or malfunctions of utilities, communications, computer (software and hardware) services, Government ban’s or restrictions ...”

The Decision Maker failed to afford reasonable quantum of the costs incurred by the Respondent (Spedding Estates Pty Ltd ATF The Spedding Family Trust trading as Summergrove Estate).

The Orders sought

The Orders sought by Spedding Estates in the Appeal Application are stated as follows:

That [Spedding Estates] be granted leave to appeal the Decision.
Any further or other order the Tribunal may deem necessary.

In his written submissions dated 26 January ‘2022’ but filed on 25 January 2023 (Mr Reid’s submissions), Mr Reid sought that the Tribunal make an order, pursuant to s 146(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which:
1. Confirms the decision made by [the Adjudicator]; or
2. Amends the decision and applies the principles of Bush and order that [Spedding Estates] provide a full refund to [Mr Reid] and pay [Mr Reid] $5,500.00 in addition to the $9,770.00 already paid by [Spedding Estates].
Although the Appeal Application strictly sought leave to appeal only, having regard to the respective written submissions by the parties and the oral submissions at the hearing of the Appeal Application, I consider it appropriate to proceed on the basis that if leave to appeal is granted, I should determine the appeal proper.

Leave to appeal is required

An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.^[10]
As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC:^[11]

… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citation omitted)

Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:^[12]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

(citation omitted)

Leave to appeal from a decision in a minor civil dispute proceeding is required even if the applicant raises a question of law.

The facts

On my review of the material, there was no real dispute as to the following material facts.
On 18 January 2021, Mr Reid signed the Agreement, which was also signed on behalf of Spedding Estates.
The Agreement identified a ‘Wedding Date’ of 1 September 2021. The Agreement included written ‘Terms & Conditions’. A number of terms and conditions were included utilising dot points. I consider that the relevant terms and conditions are those contained in the second, third and twelfth dot points which I shall refer to as ‘clause 2’, ‘clause 3’, and ‘clause 12’ respectively.
Clause 2 provided:

To secure your date and villas we require a $2,500.00 deposit payment within 7 days of making a tentative booking. Summergrove Estate reserves the right to cancel any reservations if the deposit is not received by the required date. If you cancel the booking, a refund of the deposit (less a cancellation fee of $500.00) will only be made if another wedding booking is made for the same date and time. This also applies for date changes.

Clause 3 provided:

Full payment of your quoted package is required a minimum of 4 months before your wedding date. This amount is not refundable once paid. Summergrove Estate reserves the right to cancel any reservations if the amount is not received by the required date. Final adjustments are made 14 days before your wedding date;

Clause 12 provided:

In no event shall Summergrove Estate be responsible or liable, or provide any refund for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, acts of Mother Nature, nuclear or natural catastrophes (including a pandemic) or acts of God, and interruptions, loss or malfunctions of utilities, communications, computer (software or hardware) services, Government ban’s or restrictions. No responsibility or refunds will be provided based on the description of premises, services and furnishing or condition of buildings or grounds. We recommend taking out Wedding Insurance;

The Booking Form provided, relevantly, that there would be approximately 40 guests; that the food to be provided was the ‘Antipasto Feasting Table’; the reception venue included scattered tables, dry bars, sofa, glassware, cake table and gift table; and accommodation was to be provided by way of five villas for the wedding night including continental breakfast. The pricing was $13,270.00 for 40 guests and a $2,500.00 deposit was required to secure the wedding date.
On 17 January 2021, Mr Reid paid a deposit of $2,500.00.
On 1 May 2021, Mr Reid paid the balance of $10,770.00.
On 29 July 2021, Mr Reid emailed Spedding Estates advising that he wished to discuss options to push the date of the wedding ‘out a month or two’.
Following email correspondence, Mr Reid was offered two alternative dates (15 and 18 November 2021) subject to payment of $2,000.00.
On 9 August 2021, the parties signed a written document headed ‘Rescheduled Date Addendum’ pursuant to which a new wedding date of 15 November 2021 was agreed, and which noted that the new date fell outside the complimentary date reschedule options and a fee of $2,000.00 was payable.
On or about 10 August 2021, Mr Reid paid the additional sum of $2,000.00.
On 18 August 2021, the Queensland Chief Health Officer issued Border Restrictions Direction (No. 36) (BRD 36).
On 21 October 2021, Mr Reid emailed Spedding Estates referring to ‘the latest announcement by the qld govt regarding border opening dates’ and stating that they found themselves ‘locked out’ of New South Wales and could not see how they could make it there on 15 November 2021. Mr Reid wished to discuss options for finding a date in 2022.
In subsequent email correspondence, Mr Reid enquired whether there were any alternative dates available in April 2022 or at least earlier than June 2022. The only available dates offered by Spedding Estates were four dates in June 2022 (the earliest being 7 June) and three dates in July 2022.
On 10 November 2021 (five days prior to the 15 November wedding date), Mr Reid sent an email to Spedding Estates stating:

Thank you for following up. We’ve been going over options for a while now looking at all our options and have made the decision to have the wedding at our home on the Gold Coast. This is a tough decision for us as we love the Summergrove venue, however the complexity of border restrictions and limited available dates have steered us to scaling back our plans and keeping things as simple as possible. We also felt that postponing to June was too far for us after all the previous postponements.

We appreciate you trying to fit us in and understand that you’re dealing with a surge of bookings and changes with many other couples in situations similar to us. So thank you.

With this decision to cancel our booking, can you please let me know what the next steps are and what you’d need from our end.

On 11 November 2021, Spedding Estates emailed Mr Reid advising that it had ‘released 15^th of November to be re-booked by another couple’.^[13]
Spedding Estates was unable to secure another booking for 15 November 2021.
Subsequent to an exchange of correspondence between the parties’ respective solicitors, Mr Reid filed the MCD Application.

The Adjudicator’s findings on the issue of frustration

The Adjudicator’s primary findings in support of the conclusion that the Agreement was frustrated were as follows:
1. (a)
  at T1-19 lines 4-27:

The tribunal is, having regard to the circumstances, not satisfied that it would be impossible to perform the agreement. I accept that the respondents - what the respondents put - or the tribunal accepts that the event could be postponed. However, I also accept that an eight-month delay where guests would be on - delayed from the initially contemplated date. A period of eight months is a significant period of time and would fundamentally change the nature of the event that was being contemplated in that the availability of guests and that the arrangements put in place were so fundamentally different due to the delay and the ongoing circumstances with the border restrictions, that the performance would be significantly different or even radically different having regard to the time delay and having regard to further postponements that it would be reasonable to find that even despite contemplation of the pandemic, the duration of the pandemic and what was colloquially described as second wave, and the length was such that it may not have been necessarily within reasonable contemplation even despite the specific contemplation of pandemic and government bans or restrictions in the final dot point.

Therefore, on the balance, I am satisfied that, despite it not being a circumstance of impossibility to perform, it is a circumstance where there is significant difference between what was originally contemplated at the time of formation and what was available to be performed after an eight-month delay where there still needed to be further details. So the tribunal on the basis of the significant delay and the ongoing duration of the restrictions is satisfied that it was not reasonably foreseeable at the point of entry into the contract having regard to the material circumstances at the point of entry.

(b)
at T1-21 lines 6-26:

I note also as - in passing and recapping that I am satisfied that the inability of guests to re-enter Queensland is such a circumstance so fundamentally different from what was contemplated or proposed - that is, that guests could attend the wedding and the wedding could be conducted - that that is - whilst it would be not impossible, as I’ve already noted, it would be so fundamentally different as to give rise to a circumstance of frustration in addition to the circumstances of the delays that would be required for rescheduling. So the government bans have been the - or the ongoing government bans and the duration of them have given rise to circumstances that there is a fundamental significant and radical different to the - what was proposed at the point of formation even though there was contemplation given to the pandemic and government restrictions.

In summary, the Adjudicator found that the performance of the Agreement was rendered fundamentally or radically different by reason of the circumstances which comprised an eight month delay that would result if the wedding were postponed, coupled with the duration of the pandemic and ‘ongoing’ border restrictions.
Did the Adjudicator err in finding that the Agreement was frustrated?

Spedding Estates’ submissions

Spedding Estates contends that the Decision was affected by an error of law for two reasons:
1. (a)
  first, that the coronavirus pandemic did not render the performance of the Agreement impossible or radically different from that which was intended by the parties;
2. (b)
  second, that the parties contemplated that the coronavirus pandemic may affect the wedding at the time of the Agreement.
In support of the first point, Spedding Estates submitted that:
1. (a)
  if Mr Reid had not terminated the Agreement on 10 November 2021, the wedding would have proceeded on 15 November 2021 as planned and pursuant to the terms of the Agreement;
2. (b)
  the finding that some of the attendees would have difficulty in returning to Queensland (if they chose to do so) and that this amounted to a material (or radical) difference was an error of law (and there was no evidence led by Mr Reid that any of the guests would not have attended the wedding had it proceeded as planned);
3. (c)
  the Agreement did not contain any terms that Mr Reid could reschedule the wedding to any date of his choosing; that the wedding was conditional on there being no government regulations restricting interstate travel or mandating isolation or quarantine; or that the wedding was conditional on all guests attending the wedding or, alternatively all guests being able to return to their interstate residences without having to undertake government sanctioned periods of isolation or quarantine.
In support of the second point, Spedding Estates submitted that:
1. (a)
  by clause 12, the parties expressly contemplated that, at the time of the Agreement, the coronavirus pandemic may affect the parties;
2. (b)
  that some guests might not be able to immediately return to Queensland without quarantining after attending the wedding, and that Mr Reid might not be able to reschedule the wedding to his preferred date, were risks which existed irrespective of the coronavirus pandemic and were reasonably foreseeable and were risks which Mr Reid agreed to bear;
3. (c)
  the Adjudicator’s focus on the ‘ongoing nature’ of the border restrictions being not reasonably foreseeable was wrong; rather, it was precisely the type of risk that the parties contemplated and was a basis for the bargain.
Spedding Estates also raised a discrete argument that the Adjudicator was wrong to consider the separate payment of $2,000.00 as a reschedule fee as being relevant to the consideration of the quantum repayable to Mr Reid.

Mr Reid’s submissions

Mr Reid submitted that:
1. (a)
  Spedding Estates has not established any of the grounds necessary to support an error of law;
2. (b)
  the Adjudicator correctly applied the common law principle of frustration and correctly reasoned that:
  1. the Agreement was frustrated when Spedding Estates could not provide the wedding venue services on the dates chosen by Mr Reid;
  2. the directions made by the (Queensland) Chief Health Officer were radically different from when the Agreement was entered into and when the wedding ceremony was scheduled;
  3. the directions made by the Chief Health Officer made it ‘impossible’ for all (or the majority) of the 40 guests to attend the wedding ceremony;
  4. it was not possible for a reasonable person to foresee that the Chief Health Officer would implement quarantine restrictions for Queensland residents returning to Queensland from a Covid-19 hotspot, or that a second wave of Covid-19 would occur.
Mr Reid addressed Spedding Estates’ arguments at paragraphs [12]-[46] of the appeal submissions. Mr Reid’s submissions included the following (at [28]):

The Respondent repeats his submissions previously relied upon in Case Number Q223/22, specifically that common law permits the Respondent to terminate the Contract due to frustration and to receive a refund (the principles of which are expressly incorporated into, and enacted by, the Frustrated Contracts Act 1978 (NSW)). Further, the Respondent repeats that the Contract contains unfair contract terms pursuant to section 25 of Schedule 2 of the Competition and Consumer Act 2010 (“Australian Consumer Law”).

The operation of the doctrine of frustration

In Australia, the accepted general principle of the doctrine of frustration is found in the following statement of Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council,^[14] approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa):^[15]

... frustration occurs whenever the law recognizes that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. . .. It was not this that I promised to do.”

In Codelfa, Mason J also referred to the proposition that ‘a contract will be frustrated when the parties enter into it on the common assumption that some particular thing or state of affairs essential to its performance will continue to exist or be available, neither party undertaking responsibility in that regard, and that common assumption proves to be mistaken …’.^[16] Mason J said that regard may be had to relevant surrounding circumstances to assist in identifying the common assumption.^[17]
In oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (oOh! Media), Nettle JA (as his Honour then was) summarised the position as follows:^[18]

… Consistently with Codelfa, I take the law to be that a contract is not frustrated unless a supervening event:

a)
confounds a mistaken common assumption that some particular thing or state of affairs essential to the performance of the contract will continue to exist or be available, neither party undertaking responsibility in that regard; and

b)
in so doing has the effect that, without default of either party, a contractual obligation becomes incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.

Frustration of a contract requires that ‘a supervening event must radically alter the nature, not merely the expense or onerousness, of the performance of contractual obligations’.^[19]
The doctrine of frustration ‘is not to be lightly invoked’.^[20]
Frustration discharges the parties from the obligation to perform, and the discharge takes place ‘forthwith, without more and automatically’.^[21]

Analysis of the conclusion that the Agreement was frustrated

It is apparent from the reasons of the Adjudicator that the circumstances which justified the conclusion that the Agreement had been frustrated were, first, the ‘eight month delay’ and second, the duration of the pandemic and ‘the ongoing circumstances’ with the border restrictions.
As noted above, frustration brings a contract to an end automatically; it does not require an act by the parties to the contract.
In my view, whether the Agreement was frustrated depended on the occurrence of a supervening (frustrating) event by no later than 11 November 2021 (by which date both parties proceeded on the basis that the Agreement was no longer on foot). For completeness, I note that neither the Reasons of the Adjudicator nor the case run by either party suggested that there was any materially different circumstance occurring between 10 November 2021 (the date of purported cancellation) and 15 November 2021 (the new agreed date of the wedding).

The eight month delay

Having regard to the Adjudicator’s reasons, I consider that the finding in relation to the ‘eight month delay’ was plainly material to the Decision.
With respect to the eight month delay, it is not entirely clear to me what this period entails.^[22] It appears to be a reference to the period between either the original wedding date of 1 September 2021 or the postponed date of 15 November 2021^[23] and the alternative dates offered by Spedding Estates in June and July 2022. On either basis, I consider, with respect, that the identified delay was not a relevant consideration in determining whether the Agreement was frustrated.
The original wedding date was fixed as 1 September 2021. By mutual agreement, a new fixed date was agreed for 15 November 2021. The parties failed to reach agreement as to a further postponed wedding date. Mr Reid purported to cancel the booking on 10 November 2021. This cancellation was accepted by Spedding Estates on 11 November 2021. In those circumstances, I consider that it is not relevant that the alternative dates offered by Spedding Estates were months into the future (and were not satisfactory to Mr Reid). While it was open to the parties to further postpone the wedding date (and thereby avoid the impact of the existing border restrictions at the time of the wedding), this did not happen. I respectfully consider that the fact of an eight month delay could not, in point of law, itself constitute an operative supervening event nor constitute a material circumstance to be considered in conjunction with the Queensland government border restrictions so as to found the existence of a frustrating event.
That leaves for consideration whether the conclusion that the Agreement was frustrated can be supported by the Adjudicator’s other findings, in particular the existing government ‘bans’ or ‘restrictions’.

Frustration as a result of border restrictions?

In his written submissions in support of the MCD Application, Mr Reid referenced (in paragraph 16 of those submissions) BRD 36. In his appeal submissions, Mr Reid identified BRD 36 as the basis for rescheduling the original 1 September 2021 wedding date but specifically relied on Border Restrictions Direction (No. 52) (BRD 52) as impacting the 15 November 2021 wedding date (see paragraph 13(d) of Mr Reid’s appeal submissions).
The Adjudicator’s reasons do not identify the specific border restrictions that impacted the 15 November 2021 wedding date.
Mr Reid’s appeal submissions in relation BRD 52 were as follows:

The Respondent disagrees with the Applicant, nothing that the CHO’s Border Restrictions Direction (No. 52) would have placed burdensome and unrealistic requirements upon the Respondent’s Queensland wedding guests upon their re-entry into Queensland from the wedding venue (which was declared a COVID-19 Hotspot). Specifically, the re-entry requirements included:

“At PART 3 – ENTRY TO QUEENSLAND – FROM A COVID-19 HOTSPOT

39.A person who has been in a COVID-19 hotspot in the previous 14 days or since the start date identified for the COVID-19 hotspot, whichever is shorter, must not enter Queensland unless the person:

a. is a Queensland resident or a new Queensland resident who arrives in Queensland by air and:

b. has been provided an allocated entry date and designated entry airport to enter Queensland, confirmed in writing from a government authority; and

c. is entering on the allocated entry date and to the designated entry airport mentioned in sub-paragraph (a)(i); and

d. fulfills the evidentiary requirements specified in Part 3A and obtains a Queensland Border Declaration Pass; or …

j. has completed a minimum 14 days of quarantine or self-isolation at an ADF Quarantine Hotel immediately prior to entering Queensland;”

The Respondent submits that for his Queensland based wedding guests to comply with paragraph 39 of the Border Restrictions Direction (No. 52), that those wedding guests would be required to:

a. Incur unreasonable travel costs, including flight costs to return to Queensland via air transport, nothing that the wedding venue is approximately only 13 kilometres from the Queensland border;

b. Gain written consent from the Queensland Government to enter Queensland from the COVID-19 Hotspot;

c. Complete the necessary Queensland Border Declaration Pass; and

d. Complete 14 days of quarantine at an ADF Quarantine Hotel at the costs of $3,220.00 per person.

At the hearing of the Appeal Application, Mr Spedding on behalf of Spedding Estates did not contest that BRD 52 applied but took issue with Mr Reid’s contention that travel by air and 14 days of quarantine were cumulative requirements.
Paragraph 39 of BRD 52 provided:

A person who has been in a COVID-19 hotspot in the previous 14 days or since the start date identified for the COVID-19 hotspot, whichever is shorter, must not enter Queensland unless the person:

a. is a Queensland resident or a new Queensland resident who arrives in Queensland by air and:

i. has been provided an allocated entry date and designated entry airport to enter Queensland, confirmed in writing from a government authority; and

ii. is entering on the allocated entry date and to the designated entry airport mentioned in sub-paragraph (a)(i); and

iii. fulfills the evidentiary requirements specified in Part 3A and obtains a Queensland Border Declaration Pass; or

…

j. has completed a minimum 14 days of quarantine or self-isolation at an ADF Quarantine Hotel immediately prior to entering Queensland; or

…

Subparagraphs 39a and 39j are listed as alternatives. However, paragraph 41 of BRD 52 also provided:

A person permitted to enter Queensland under paragraphs 38 or 39 must:

a. give, or have given within the previous 14 days, a Queensland Border Declaration Pass under paragraph 51 unless not required to do so under paragraph 53; and

b. only enter by air unless this direction provides otherwise; and

Note: see paragraph 43 and column 5 of Schedule 1 for instances where entry other than by air is permitted.

c. only enter from an approved airport if specified in column 5 of Schedule 1; and

d. comply with the quarantine and evidence requirements of Parts 6 and 7.

(underlining added)

Column 5 provided, relevantly:

A Queensland resident re-entering Queensland after travelling in a COVID-19 hotspot outside the border zone must enter by air to a designated entry airport.

A Queensland resident travelling to the non-restricted or restricted border zone for a purpose that is not essential must enter by air to a designated entry airport.

Although the state of the evidence is not particularly satisfactory, given the findings of the Adjudicator, the approach of the parties at the Appeal Application, and the provisions of BRD 52 (a publicly available document), I will proceed on the basis that as at 10 and 11 November 2021, a Queensland resident who attended the wedding on 15 November 2021 would have been required to return to Queensland by air and to quarantine for 14 days in an approved facility. On my reading of the Reasons below, it is not clear that this was the factual basis upon which the Adjudicator proceeded in making the relevant findings. For example, the Adjudicator referred to the ‘closure of the border’ (in referring to Mr Reid’s submissions),^[24] to the ‘inability’ of guests to re-enter Queensland,^[25] and to the ongoing government ‘bans’^[26] (although also referring to government ‘restrictions’). However, accepting the operation of BRD 52 identified above, can the Decision be upheld?
At the core of the Agreement, Spedding Estates agreed to provide the wedding venue and the associated services (and accommodation) and Mr Reid agreed to provide the stated consideration (which had been paid in total in advance of the original wedding date). The uncontradicted case of Spedding Estates was that it was ready, willing and able to perform its obligations under the Agreement as at 15 November 2021 and that no government restrictions prevented the wedding couple and all of their guests from attending the wedding venue and reception on 15 November 2021. Mr Reid’s case primarily relied upon the impact of the Queensland government restrictions on the return of the Queensland based wedding attendees (including Mr Reid and his partner) to Queensland after the wedding.
In support of its submissions (particularly those set out in paragraph 37(b) above), Spedding Estates relies upon clause 12 of the Agreement. In my view, having regard to the terms of clause 12, the clause only operated in the event that there was a failure or delay in the performance of Spedding Estates’ obligations as a result of the events specified in that clause. This appears to be accepted by Spedding Estates.^[27] However, Spedding Estates also relies upon clause 12 in support of its contention that the parties contemplated that the Agreement may be affected by ‘natural catastrophes (including a pandemic)’ and ’Government ban’s [sic] or restrictions’.
The Adjudicator considered the operation of clause 12 and said the following:^[28]

It is clear from the wording that has been signed and that dot point that the respondents [sic] have gone to significant lengths to - and have considered circumstances relevant to the pandemic and associated restrictions and have by the inclusion of that clause attempted to do as far as they can within the realms of enforceable provisions within a contract provide notice to both parties and include a term that would contemplate potential restrictions.

Therefore, the starting point for the consideration is that there is an applicable term that a deposit is not refundable irrespective of what may be - in this case what eventuated, that is, that a - guests from Queensland, including the bridal party, may not be able to re-enter Queensland should there be government restrictions imposed by the Queensland Government or health directives in relation to re-entry into Queensland after the wedding event. And therefore the respondents have inserted and relied upon a clause that specifically contemplates that in conjunction with the requirement to prepay a deposit.

However, the case for the respondent was that even despite the contemplation that was specifically included and despite the clause being inserted that deposit - that the moneys paid - that is, full payment is not refundable - the case of the respondent was that the circumstances that resulted from the closure of the border were so significantly different that it was, indeed, frustration irrespective of the contemplation of those circumstances. A bad bargain where one party strikes an agreement and then consequently faces hardship, inconvenience and material loss is not grounds for frustration. A foreseen event is also not grounds for frustration. Where it is reasonably foreseeable that there may be further border closures, the tribunal must give consideration to whether, indeed, there has been frustration.

(emphasis added)

I find it difficult to reconcile the findings in emphasis above with the Adjudicator’s conclusion that ‘the duration of the pandemic and what was colloquially described as second wave’ and ‘the length’ (it is unclear what this refers to, if not duration) was such that it ‘may not have been necessarily within reasonable contemplation’ of the parties. Given that the Agreement was entered into during the pandemic and the language of clause 12, I consider that it was plainly foreseeable, and foreseen, by the parties at the date of the Agreement that the holding of the wedding may be affected by the coronavirus pandemic and by government bans or restrictions concerning the pandemic.
However, notwithstanding the Adjudicator’s findings as set in the second paragraph of paragraph 65 above, I accept that the specific restrictions imposed by BRD 52 were not foreseen by the parties, particularly given the generality of the references to the pandemic and government bans and restrictions in clause 12. Accepting this, the question remains as to whether such restrictions, in the circumstances, brought about the frustration of the Agreement.
In circumstances where Spedding Estates was ready, willing and able to hold the wedding event on 15 November 2021, and there being no government direction or restriction preventing the wedding couple and their guests from attending the wedding at Summergrove Estate, I consider that there is no proper basis to conclude that any contractual obligation under the Agreement became incapable of being performed because the circumstances in which performance was called for (including the requirements of BRD 52) rendered the obligation a thing ‘radically different’ from that which was undertaken by the Agreement. Further, even if the impact of the BRD 52 requirements on returning Queensland residents was relevant to the performance of the parties’ obligations under the Agreement, I consider that such requirements would alter the expense or onerousness of, but not alter the nature of (radically or otherwise), the performance of the obligations under the Agreement. In my view, neither of the elements identified in oOh! Media^[29] was satisfied and the circumstances that existed did not engage the doctrine of frustration.
For the above reasons, I consider that there is a reasonable argument that the Decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error. Additionally, unlike a number of earlier ‘Covid-19’ frustration cases,^[30] this case involves an agreement entered into during the coronavirus pandemic and which contained a term that referenced a pandemic and government bans or restrictions. In those circumstances, I consider that the appeal raises a question of general importance upon which a decision of the Appeal Tribunal would be to the public advantage. I grant Spedding Estates leave to appeal.
In my respectful view, the Adjudicator erred in law in concluding that the Agreement was frustrated and, subject to a consideration of Mr Reid’s further arguments, the Decision should be set aside.
Having regard to paragraphs 2 and 28 of his appeal submissions, Mr Reid seeks to rely in the alternative on:
1. (a)
  the FCA;
2. (b)
  the unfair terms provisions of the Australian Consumer Law.
I will deal with each matter in turn.

The FCA

It was not clear to me from Mr Reid’s appeal submissions whether he contends that the FCA was capable of providing him with a remedy in circumstances where the Agreement was found not to be frustrated.
The FCA only operates upon a frustrated contract;^[31] that is, the operation of the FCA depends upon a finding that the contract is frustrated at common law. In that event, the FCA provides for the remedies that may be available.
Given my conclusion in respect of the doctrine of frustration, I consider that the FCA is of no utility to Mr Reid.

The unfair terms issue

In support of the MCD Application, Mr Reid submitted, amongst other matters, that the refund terms of the Agreement were unfair in accordance with the Australian Consumer Law, that the Agreement was unfair, and that Mr Reid was entitled to restitution. I note that the Australian Consumer Law (Cth) is applied as a law of Queensland by the Fair Trading Act 1989 (Qld).
Given the finding of frustration, the Adjudicator found that it was unnecessary to decide this issue but noted a potential issue in relation to jurisdiction.
Without expressing a concluded view as to the likelihood of a finding that one of, or a combination of, clauses 2, 3 and 12 amounted to an unfair term or terms for the purposes of the Australian Consumer Law (Qld),^[32] I consider that such a contention is reasonably arguable in circumstances where (without limitation) clause 3 of the Agreement^[33] provided that, without qualification, the full payment of the quoted package was not refundable once paid (in circumstances where full payment was required a minimum of four months before the wedding date).
Subject to the question of jurisdiction, I would have been minded to return the matter to the Tribunal, pursuant to s 146(c) of the QCAT Act, for reconsideration of the issue of the application of the Australian Consumer Law (Qld). However, for the following reasons I consider that the Tribunal does not have jurisdiction to determine that issue.
This jurisdictional issue was considered by the Appeal Tribunal in Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon^[34] where it was held that the Tribunal lacks jurisdiction with respect to the unfair term provisions in the Australian Consumer Law (Qld).
The Appeal Tribunal summarised the position as follows:^[35]

i.
The Tribunal has the jurisdiction conferred on it by the QCAT Act and enabling Acts: s 9(1) QCAT Act.

ii.
An enabling Act confers jurisdiction if, in the case of original jurisdiction, it confers the power to make an application to the Tribunal in respect of a matter arising under that Act: s 9(3) QCAT Act.

iii.
The Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)) is applied as a law of Queensland by the FTA: s 16 FTA.

iv.
The FTA is an enabling Act as far as the ACL (Qld) is concerned: s 6(2) QCAT Act.

v.
The FTA confers jurisdiction to make an application in respect of certain provisions in the ACL (Qld): ss 50 and 51 of the FTA.

vi.
There is no conferral by s 50 or s 51 of the right to make an application in respect of the unfair term provisions in the ACL (Qld).

vii.
There is no jurisdiction to apply the unfair term provisions by way of a defence to a claim for moneys owed in the minor civil dispute jurisdiction. This “residual” jurisdiction is not contemplated by s 9 of the QCAT Act, nor open under the FTA. Further, in our view, a term is void only once it has been declared to be an unfair term.

The Appeal Tribunal further said:^[36]

… Section 51 of the [Fair Trading Act] confers the power to make declarations relating to consumer contracts on the District Court. Once a declaration has been made that a term is unfair, other remedies may be applied for.

Consequently, I consider that there is no utility in returning the matter to the Tribunal.
However, pursuant to s 52(2) of the QCAT Act, if the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the Tribunal may, by order, transfer the matter for which it does not have jurisdiction to a court of competent jurisdiction.^[37] The Tribunal may act under s 52 on the application of a party to the proceeding or on its own initiative (s 52(6)). Under s 146(d) of the QCAT Act, the Appeal Tribunal may make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c).
The Tribunal proposes to order, pursuant to s 146(d) of the QCAT Act, (in addition to setting aside the Decision) that the MCD application be transferred to the District Court at Southport for determination of the matter of whether any of the terms of the Agreement are unfair terms and, if so, what (if any) relief or remedy should be granted to Mr Reid in relation to the amounts paid to Spedding Estates. However, given the quantum of the claim and that the District Court is a costs jurisdiction, the Appeal Tribunal is minded to give Mr Reid the option of whether he wishes to press his case in relation to the issue of the unfair terms in the District Court. To that end, the order transferring the MCD Application to the District Court will be made subject to Mr Reid’s election to withdraw the MCD application. If he chooses to do this, he must file a notice of withdrawal of the MCD application within 21 days of the date of these reasons (and give a copy to Spedding Estates within 3 days thereafter). If no notice of withdrawal is filed, the MCD Application will be transferred to the District Court at Southport.

Orders

For the reasons set out above, it is ordered that:
1. (a)
  leave to appeal is granted;
2. (b)
  the appeal is allowed;
3. (c)
  the decision made by the Tribunal dated 6 July 2022 is set aside;
4. (d)
  unless, within 21 days of the date of these Reasons, Dean Kimball Reid (Mr Reid) files in the Tribunal a notice in the approved form withdrawing the Application for minor civil dispute – consumer/trader; property damage caused by a motor vehicle, filed on 26 April 2022, the Application is ordered to be transferred to the District Court at Southport for determination of the matter of whether any of the terms of the agreement between the parties dated 18 January 2021 are unfair terms and, if so, what (if any) relief or remedy should be granted to Mr Reid in relation to the amounts paid to Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate (Spedding Estates);
5. (e)
  if a notice of withdrawal is filed, Mr Reid must give a copy to Spedding Estates within 3 days of filing the notice.
With respect to the question of costs, each of the parties shall, within 21 days of the date of these Reasons, file in the Tribunal, and give to the other party a copy of, written submissions on the question of costs.

Footnotes

[1]The Appeal Application states that the Decision was received by Spedding Estates on 23 August 2022, which appears to be a reference to receipt of the transcript of the hearing containing the oral reasons.

[2]Transcript T1-16 lines 18-40. The reference to ‘Summer Grove’ is as recorded in the Transcript; the Agreement adopts ‘Summergrove Estate’.

[3]T1-17 lines 9-15, 31-35.

[4]T1-17 lines 19-31.

[5]T1-18 lines 14-28.

[6]T1-19 lines 4-5, 20-21.

[7]T1-19 lines 5-29; T1-21 lines 16-26.

[8]T1-19 lines 29-34.

[9]T1-19 line 36 – T1-21 line 14; T1-21 line 28 – T1-23 line 14.

[10]Subsection 142(3)(a)(i) of the QCAT Act.

[11]See Saxer v Hume [2022] QCATA 25, [2].

[12][2021] QCATA 61, [14].

[13]Email sent on 11 November 2021, a copy of which appears at pp 47-48 of the Annexures to the affidavit of Donna Spedding.

[14][1956] A.C. 696, 729.

[15](1982) 149 CLR 337, 357 (Mason J as he then was, Stephen J agreeing, 345), 380 (Aikin J).

[16]At 357.

[17]At 357-359.

[18](2011) 32 VR 255, [70] (Redlich and Weinberg JJA agreeing), and cited with approval in Woolworths Group Ltd v Gazcorp Pty Ltd (Gazcorp) [2022] NSWCA 19, [215] (Bell P, Bathurst CJ and Meagher JA agreeing).

[19]oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd, [101], citing National Carriers Ltd v Panalpina Ltd [1981] AC 675, 700; Codelfa, 378-379 (Aikin J).

[20]Gazcorp, [213] and the case cited therein.

[21]Gazcorp, [219] and the cases cited therein.

[22]See the Reasons at T1-18 line 41 – T1-19 line 18.

[23]I consider it more likely to be a reference to the former.

[24]T1-18 lines 32-33.

[25]T1-21 lines 16-17.

[26]T1-21 lines 22-23.

[27]Spedding Estates’ appeal submissions, paragraph 36.

[28]T1-18 lines 14-39.

[29]See paragraph 44 above.

[30]Including an earlier case involving Spedding Estates: Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3 (Member Gordon).

[31]Thors v Weekes (1989) 92 ALR 131, 142 (Gummow J).

[32]See ss 23-28 of the Australian Consumer Law (Cth).

[33]I note the rebuttable presumption that a contract is a ‘standard form contract’: see s 27(1).

[34][2019] QCATA 1.

[35]At [39] (Daubney J, Member Traves (as Member Traves then was)).

[36]At [34].

[37]In this regard, I respectfully adopt the observations of Member Roney KC in Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39, [71]-[72]. The Tribunal transferred a matter to the District Court in O'Connell & Anor v P J Burns Buildings Pty Ltd & Anor [2022] QCAT 155 (Member Gardiner).

Editorial Notes

Published Case Name:
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid
Shortened Case Name:
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid
MNC:
[2023] QCATA 96
Court:
QCATA
Judge(s):
Member Lumb
Date:
17 Jul 2023

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Berry v Treasure	[2021] QCATA 61	2 citations Jump To Cite 1 - [2021] QCATA 61 Cite 2 - [2021] QCATA 61
Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd	[2023] QCAT 39	2 citations Jump To Cite 1 - [2023] QCAT 39 Cite 2 - [2023] QCAT 39
Codelfa Construction Pty Ltd v State Rail Authority of NSW	View on:JADE(1982) 149 C.L R. 337	2 citations Jump To Cite 1 - (1982) 149 C.L R. 337 Cite 2 - (1982) 149 C.L R. 337
Davis Contractors Ltd v Fareham Urban District Council	View on:ICLRUK(1956) AC 696	2 citations Jump To Cite 1 - (1956) AC 696 Cite 2 - (1956) AC 696
National Carriers Ltd v Panalpina (Northern) Ltd	View on:ICLRUK[1981] AC 675	2 citations Jump To Cite 1 - [1981] AC 675 Cite 2 - [1981] AC 675
O'Connell v P J Burns Buildings Pty Ltd	[2022] QCAT 155	2 citations Jump To Cite 1 - [2022] QCAT 155 Cite 2 - [2022] QCAT 155
oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd	View on:VR(2011) 32 VR 255	2 citations Jump To Cite 1 - (2011) 32 VR 255 Cite 2 - (2011) 32 VR 255
Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon	[2019] QCATA 1	2 citations Jump To Cite 1 - [2019] QCATA 1 Cite 2 - [2019] QCATA 1
Saxer v Hume	[2022] QCATA 25	2 citations Jump To Cite 1 - [2022] QCATA 25 Cite 2 - [2022] QCATA 25
Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie	[2022] QCATA 3	2 citations Jump To Cite 1 - [2022] QCATA 3 Cite 2 - [2022] QCATA 3
Thors v Weekes	(1989) 92 ALR 131	2 citations Jump To Cite 1 - (1989) 92 ALR 131 Cite 2 - (1989) 92 ALR 131
Woolworths Group Ltd v Gazcorp Pty Ltd	View on:JADE[2022] NSWCA 19	2 citations Jump To Cite 1 - [2022] NSWCA 19 Cite 2 - [2022] NSWCA 19

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid No 2	[2023] QCATA 117	2 citations

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Spedding Estates Pty Ltd as trustee for The Spedding Family Trust t/as Summergrove Estate v Reid[2023] QCATA 96