Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2024] QCAT 178

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2024] QCAT 178 PARTIES: COOLING AND HEATING EQUIPMENT PTY LTD ABN 52601244731 (applicant) v MULTICHOICE FILTRATION PTY LTD ACN 23622360507 (respondent) APPLICATION NO/S: Q249/22 MATTER TYPE: Other minor civil dispute matters DELIVERED ON: 23 April 2024 HEARING DATES: 2 August 2023, 9 November 2023, 6 December 2023, 30 January 2024 HEARD AT: Southport DECISION OF: Adjudicator Alan Walsh ORDERS: The Respondent pay the Applicant $22,187.00 within 60 days of today’s date. CATCHWORDS: CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – where Applicant applies to recover debt for goods sold and delivered – where agreement for importation of goods by Applicant for sale to Respondent - where agreement that Respondent issue Purchase Orders to Applicant specifying items and price for manufacture overseas and supply in Australia – where orders placed accordingly – where Respondent invoiced for goods when released from customs in Australia – where invoices payable end of following month – where Respondent rented part of Applicant’s warehouse – where delivery to Applicant’s warehouse deemed delivery to Respondent – where time not of the essence of contracts – where retention of title pending payment not agreed – when goods delivered – when payment due – whether debt owed and in what amount CIVIL LAW – CIVIL TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – JURISDICTION – where counterclaim in proceedings for minor debt impermissible – whether claim for damages -- 1 of 29 -- 2 justiciable in application for minor debt – whether informal counterapplication for damages for breach of contract and negligence justiciable in application for minor debt – whether equitable set-off of unliquidated damages available in defence of proceedings for minor debt PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS AND TRIBUNALS – GENERAL MATTERS – whether Tribunal Rules prohibiting counterapplication in proceedings for minor debt susceptible to waiver or relaxation Civil Liability Act 2003 (Qld), s 4, s 9, s 10, s 11, s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 11, s 12, s 13, s 14, s 61 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 7, r 10, r 45, r 48, r 49 Sale of Goods Act 1896 (Qld), s 3, s 20, s 21, s 41, s 43, s 44, s 52, s 55 Practice Direction 9 of 2010 Auspex Property Research Pty Ltd v Morris [2019] QCATA 009 Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277 Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2023] QCAT 399 D Galambos and Son Pty Ltd v McIntyre (1974) 5 ACTR 10 Hadley v Baxendale & Ors [1854] EWHC J70 Hardingham v RP Data Pty Ltd [2022] HCA 39 Joubert v Fleger [2023] QCAT 382 Langley & Anor v Ouzit [2024] QCATA 18 New South Wales v Mikhael [2012] NSWCA 338 NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd [2015] QCAT 57 Simons v R & D Accounting [2022] QCATA 131 Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173 Till & Anor v Rose [2016] QCA 127 Richard Douglas, Gerard Mullins, Simon Grant, Annotated Civil Liability Legislation (LexisNexis, 5 th ed, 2021) B. C. Cairns, Australian Civil Procedure (Lawbook Co of Australasia, 6th ed, 2005) J. W. Carter, Contract Law in Australia (LexisNexis, 7th ed, 2018) Dr J. R. S. Forbes, Justice in Tribunals (Federation Press, 5th ed, 2019) -- 2 of 29 -- 3 James Edelman and Lauren Bourke, ‘Hadley v Baxendale’ (Speech, 2017 FW Guest Memorial Lecture, University of Otago, 1 November 2017) Virginia Bell AC, ‘Balancing informality with natural justice and the work of Tribunals’ (Speech, 2021 Whitmore Lecture, 21 April 2021) APPEARANCES & REPRESENTATION: Applicant: Mr A Bartlett, Director Respondent: Mr C Esplin, Director REASONS FOR DECISION Introduction [1] Cases in the minor civil dispute jurisdiction of this Tribunal sometimes assume such proportion and complexity that the Tribunal’s statutory objective of quick and economical disposal consistent with achieving justice is frustrated. [2] This is such a case. Application for minor debt – 11 May 2022 [3] The Applicant (‘Cooling’) filed a Form 3 Application for minor debt on 11 May 2022 claiming $24,905.10 for unpaid invoices 210092, 210093, and 220002, less a credit on CNIV3790 for goods sold and delivered to the Respondent (‘Multichoice’) plus interest and outlays, in sum $26,856.56. Response – 6 June 2022 [4] Multichoice filed a Form 7 Response on 6 June 2022 setting out its defence in the following terms. I will pay you for invoice 210092 for the entire amount less the credit notes issued - $1,904.50 (F6 Bags missing and cardboards wet and damaged) 12 Boxes @ $8 each = $96 excl (or you can replace them if you like – 61 x 61 x 61) NO labour charges for recounting and placing correct filters in boxes and labelling correctly YET (unless we go further) I will pay on inspection of filters Friday 25/3/22 - $11,352.80. Invoices – 210093 to be reinvoiced for the 15/3/22 for payment 30/4/22; 220001 Fine and good for payment 31/3/22; 220002 to be invoiced 25/3 on inspection of goods for payment 30/4/22. I have no issue paying you for goods delivered, never have but to just invoice without knowing when goods arrive is unacceptable for our business. You also have goods kept illegally – already paid for, which in terms can cost you a lot of money for me to replace locally. Multichoice gave them a few days to agree to proposal. They did not respond and a decision was made that IF part filters received were paid for, then my goods he has would not be released, as he wanted ALL monies before filters were handed over. -- 3 of 29 -- 4 We have a number of issues with CHE withholding our goods for ransom or not adhering to the credit terms. There are costs involved in keeping our paid goods, delivering goods very late. In order for MCF to trade, we had to make alternate arrangements for goods and these costs will be passed on. We have missed out on sales on numerous occasions, whereby the cost of the replacement of kept goods were far greater than what the original quotes to our customers were. [5] Cooling rejected the settlement proposal set out in the Response, so Registry listed the proceeding for mediation. Mediation – 1 July 2022 [6] The parties partly resolved the dispute at mediation on 1 July 2022 in terms of a payment agreement which included that Cooling would release goods in its warehouse “owned” by Multichoice to be collected on prior written notice but that monies outstanding on goods already supplied would “continue to be treated as a bad debt and pursued through QCAT.” [7] Mr Bartlett, a director of Cooling, returned the general agreement duly signed but in an accompanying email dated 18 July 2022 to the Courthouse alleged “threatening behaviour” of Mr Esplin, a director of Multichoice. He insisted that someone else retrieve the goods, but that did not occur. [8] Mrs Bartlett, Mr Bartlett’s wife and co-director, also emailed the Tribunal on 18 July 2022 a list of goods held and goods received that included Multichoice goods held totalling $2,593.20, unpaid goods held totalling $8,818.00, goods received totalling $17,918.60 and goods claimed for totalling a net $24,905.10 as per the application for minor debt. Hearing – 25 July 2022 [9] A learned Adjudicator of the Tribunal heard and determined the claim for minor debt in the afternoon on 25 July 2022. The hearing list for that day informs me that she had 4 applications listed between 9:30 am and 11:00 am, 2 between 11:00 am and 1:00 pm, and 2 between 2:00 pm and 4:00 pm, plus at least 7 files for on the papers hearings and decisions, a total of 15 cases. The Adjudicator had one hour to hear this case. [10] It is in those circumstances that truncated procedures can apply1 in minor civil disputes to facilitate quick adjudication in expedited hearings. Conventional hearings and procedures such as would occur in a Court of law are necessarily a rare exception in the way in which the Tribunal performs its functions to achieve its statutory objectives. [11] Were that not so, the number of cases listed daily in minor civil disputes before an Adjudicator simply could not be dealt with and the Tribunal’s statutory efficiency function and object would be impossible to achieve. [12] Former High Court Justice Virginia Bell AC, in a paper entitled The Whitmore Lecture delivered on 21 April 2021, at page 4 referred to the 5 th edition of Dr Forbes’ text2 on the work of Tribunals and his observation of the difficulty of striking a balance between relatively simple, speedy and inexpensive decision making and 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 82, s 94, s 95. 2 Forbes, Justice in Tribunals (Federation Press, 5th ed, 2019). -- 4 of 29 -- 5 “luxurious notions of due process,”3 warning that the objectives of expedition and informality in the conduct of tribunal proceedings will continue to be unattainable until the “over-refinements of judicial review are moderated.”4 [13] I respectfully agree with Dr Forbes’ analysis and caution. [14] After reading the file of documents, the learned Adjudicator at first instance heard oral evidence and submissions from the parties between 3:29 PM and 4:12 PM as appears from the transcript. In concluding with brief oral reasons for the decision she then ordered as follows. (a) Multichoice pay $25,337.35 on the claim in debt for goods sold and delivered or deliverable and costs within 28 days; and (b) Within 2 days after payment, Cooling make any goods held in respect of the Respondent’s purchase orders available for its collection. Appeal – 19 June 2023 [15] Multichoice appealed the decision. [16] On 19 June 2023 the Appeal Tribunal: (a) upheld the appeal following an oral hearing, set aside the first Adjudicator’s orders and remitted the case for reconsideration of the claim and any set off claim properly5 set out and evidenced. (b) ordered that the Tribunal in its reconsideration may make such directions or orders considered appropriate including in relation to the filing of amended documents. [17] I incorporate by reference the Appeal Tribunal’s written reasons published to the parties and have placed a copy of it on the Tribunal file. Schedule of Loss and Damage [18] Insofar as concerns set off, it is evident from the Application for leave to appeal and documents accompanying it that the Appeal Tribunal had before it a Schedule of financial loss prepared by Multichoice. [19] The Schedule of financial loss was first relied on in the appeal on the advice of a Southport solicitor assisting Mr Esplin.6 [20] It was not mentioned or referred to in the evidence of Multichoice given by its director Mr Esplin at the first hearing,7 and it itemises amounts claimed by Multichoice totalling $30,755.40 for goods held and undelivered and goods allegedly damaged “due to negligence8 (sic) by CHE” which did not include extra costs for non-delivered goods. 3 Ibid, at 167 [11.29]. 4 Ibid, at 91, [6.34] fn 196. 5 Italicised by me for emphasis. 6 Transcript 30 January 2024, T1-7, lines 32 to 34; Queensland Law Society Register of Solicitors G – L. 7 Transcript 25 July 2022, T1-1 to T1-26. 8 Italicised by me for emphasis. -- 5 of 29 -- 6 [21] Further complicating the situation, the Schedule of financial loss claims damages relating to Invoices that are not the subject of Cooling’s application for minor debt because of the $25,000 limit of this Tribunal’s minor civil dispute jurisdiction, namely the following invoices identified in a related Scott Schedule: Cooling Invoices 210056A, 210090(1), 220001(1), 220001A, and Multichoice Invoices 3961 and 4303. [22] If justiciable and proven, Cooling would owe Multichoice $5,755.50 after set-off of unliquidated damages informally claimed for financial loss. Loss and Damage – not justiciable [23] Whether by Application or Counter Application, a claim for damages is not justiciable in proceedings for a minor debt in this Tribunal. [24] Neither is set-off of unliquidated damages available as a defence in proceedings for a minor debt. Explanation [25] It suffices presently to say that I explained the consequence to Mr Esplin at an early stage of the hearing and gave him the option of requesting a transfer of the proceedings in this Tribunal to the Magistrates Court, where a counterapplication for damages could be filed and adjudicated, which he declined.9 Election [26] Parties to minor civil disputes are bound by the way they conduct their cases. Multichoice is therefore bound by Mr Esplin’s election10 not to request the transfer to the jurisdiction to hear and decide a defence and counterclaim for damages. Precedent Ouzit [27] A recent Appeal Tribunal decision of Judicial Member in Langley & Anor v Ouzit [2024] QCATA 18 (‘Ouzit’) at [12] confirms that a claim for damages is not justiciable in proceedings for a minor debt. R & D Accounting [28] The Appeal Tribunal in an earlier case of Simons v R & D Accounting [2022] QCATA 131 (‘R & D Accounting’) reached the same conclusion. [29] An Acting Senior Member in that case said the following. [28] The Member permitted Mr Simons a set-off in respect of the reasonableness of the charges of R & D for what work was done, which was all the tax returns. That course was open to the Member. 9 Transcript 9 November 2023, T1-4 lines 18 to 25 and lines 47 to 48; T1-5 lines 1 to 34; Ibid, lines 37 to 48; T1-6, lines 25 to 37; T1-34 lines 10 to 26; T1-55 lines 26 to 48; T1-56 lines 1 to 18; Transcript 6 December 2023, T1-45 lines 16 to 48; T1-46 lines 1 to 5 and lines 16 to 42; T1-90 lines 22 to 42; T1-92 lines 22 to 27 and line 45; T1-93 lines 1 to 15; T1-94 lines 10 to 16; Transcript 30 January 2024 T1-5 lines 3 to 6; T1- 7 lines 11 to 18 and 22 to 36; T1-11 lines 1 to 9; T1-15 lines 23 to 32; T1-19 lines 15 to 43; T1-24 lines 29 to 42. 10 See the decision of then Senior Member Silgoe OAM in Till and Till ATF The Till Family Trust t/as Mt Cotton Truck Hire v Rose [2015] QCATA 173 at [11]; see also Till & Anor v Rose [2016] QCA 127, at [7] and [8]. -- 6 of 29 -- 7 [29] But as stated, in so far as his complaint extended to what effectively a counter application based on negligence, that was something that could not be litigated in the Tribunal before the Member. [30] He referred at [30] to the restriction in Rule 48(3) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’) and at [31] to the difference between set-off and counterapplication as explained by a Member in Auspex Property Research Pty Ltd v Morris [2019] QCATA 009 (‘Auspex’) at [40]. [31] Both Ouzit and R & D Accounting concerned proceedings for a minor debt in which the respondent asserted set-off of unliquidated damages, as does the Respondent in the present case, and both in my respectful opinion correctly state the law as it applies in circumstances such as the present. Barbi [32] On the other hand, I respectfully disagree with what appears to have been the contrary conclusion in principle expressed by an Adjudicator in NR Barbi Solicitor Pty Ltd v Miller & Old Coach Developments Pty Ltd [2015] QCAT 57 (‘Barbi’) at [19]. [33] In Barbi, by reference to D Galambos and Son Pty Ltd v McIntyre (1974) 5 ACTR 10 (‘D Galambos’) at 25-26, the learned Adjudicator said that an equitable set-off is available “in an appropriate case” and “does not have to be sought by way of a counterclaim.” [34] The Adjudicator referred to the following statement in D Galambos at 25-26. Claims for money due under a contract and for damages for breach of the same contract (arising, for example from delay) may be set-off against each other where the equity of the case requires that it should be so.11 Even where one of the claims is not in terms based upon the contract, but it flows out of and is directly connected with it, a court12 may be prepared to recognise an equitable set-off. [35] In my respectful opinion the excerpted statement in D Galambos referred to in Barbi does not apply in this Tribunal. [36] This is because – (a) The Queensland Civil and Administrative Tribunal is not a court of law. (b) QCAT has no jurisdiction in equity,13 other than to the extent of what might be regarded as equitable remedies as restated in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), for example – the remedy of an injunction and the power to order an injunction.14 (c) Section 13 of the QCAT Act that provides that the Tribunal must make orders that it considers fair and equitable to the parties does not confer jurisdiction in equity. 11 My italicisation for emphasis. 12 Ibid. 13 Joubert v Fleger & Fleger [2023] QCAT 382, [3]. 14 Per then President of the Tribunal Justice Alan Wilson in Batwing Resorts Pty Ltd v Body Corporate for Liberty on Tedder CTS 27241 [2011] QCAT 277, [40]. -- 7 of 29 -- 8 (d) Section 13 cannot reasonably be understood as meaning that the Tribunal has jurisdiction to adjudicate a dispute in which a claim for unliquidated damages is asserted in a defence of set-off. (e) D Galambos concerned a claim in a Court of law and addressed legal principle as it applied in respect of contracts for work and labour whereas the present proceedings concern a minor debt claim for the cost of goods sold and delivered in a statutory Tribunal constrained by the provisions of its own statute. Auspex [37] Insofar as Barbi has apparently been followed with approval in Auspex at [39], it follows that I respectfully must disagree with Auspex in that regard and I do so also for the following reasons. [38] Set-off of unliquidated damages is not available by way of a “cross-claim” (my italicisation for emphasis) as an alternative to a counter-application, the latter of which is prohibited in proceedings for a minor debt in QCAT, if that was the conclusion of the learned member in Auspex at [40] relying on Cairns, Australian Civil Procedure (Lawbook Co of Australasia, 6th ed, 2005), 210. [39] This is because there is no provision in the QCAT Act for making a crossclaim for set-off of unliquidated damages in response to an application for minor debt. Remittal [40] The remitted case came on for hearing before me on 2 August 2023 at the Southport sittings. I satisfied myself in discussion with the learned Acting Senior Member who constituted the Appeal Tribunal that reconsideration in the present case means re- hearing by another Adjudicator, not reconsideration by the first Adjudicator. [41] That is consistent with paragraph [20] in the Appeal reasons where in reference to paragraph [19] the following appears. Mr and Mrs Bartlett dispute factual matters put by Mr Esplin. However, the application for leave to appeal or appeal did not proceed by way of a rehearing (sic) so that the Appeal Tribunal might make findings in that regard. Orders and Directions - 2 August 2023 [42] I made orders and gave directions on 2 August 2023 envisaged in the Appeal decision, as follows. (a) On or by 21 August 2023, Multichoice file and serve an amended Response on or by 21 August 2023 setting out (amongst other things) any defence of set-off against any indebtedness of it to Cooling and all affidavits of evidence and submissions. (b) Cooling file its’ material in reply on or by 4 September 2023. (c) On or by 11 September 2023, the parties file and serve a summary of their submissions regarding - (i) the terms of the agreement to sell including the status of the standard terms and conditions in relation to the agreement between the parties. (ii) the contractual agreement in relation to the time of payment for goods. (iii) whether and if so which property in some or all of the goods had passed to Multichoice at the time of demand for payment. -- 8 of 29 -- 9 (iv) whether and if so which goods Multichoice was entitled to not accept or reject. Amended Response – 21 August 2023 [43] Multichoice filed an amended Response on 21 August 2023 in defence of Cooling’s claim for unpaid invoices 210092, 210093, and 220002, and invoice 220001 subsequently added in an amended claim to which I will refer later. [44] The amended Response bears little resemblance to the original. [45] It reads as follows. Invoice 210092 The goods were delivered to Cooling’s warehouse on 21 January 2022 and viewed on 22 January. Most were wet, some were damaged, and some were missing, Mr Esplin notified Mr Bartlett. He said the missing goods were coming “soon … in the next batch.” They included 1000 plastic “clips” (referred to in invoice 210093) essential to Multichoice manufacturing filters for clients waiting for them. They did not arrive, so had to be purchased elsewhere at additional cost to Multichoice which has been “blocked” from warehouse entry. The price difference is claimed in set off in the Scott Schedule, item 5D invoices. Invoice 210093 Multichoice manufacture panel filters from aluminium channel, plastic “corners” and V Form Mat. 1000 plastic corners essential to the manufacture were missing. They did not arrive despite Mr Bartlett saying they were “getting sent” so Multichoice had to buy panel filters locally at an inflated cost to hour customer orders. It also had to “let go” two casual staff who performed the manufactured the 45 x 90mm panel filters. Refer items 6C and 6D for local supplier invoices. Invoice 220002 These goods were “unseen due to breakdown in contract and rejected by MCF” and “these filters have all been purchased from local suppliers to fulfill customer needs.” Invoice 220001(1), 220001(2), 220001A 220001A was collected from Air Master on 28.02.22. The rest of the Purchase Order is apparently in CHE warehouse but has not been viewed as they were not there by 15.03.23 which was the last time MCF was given access to the warehouse. Scott Schedule [46] A Scott Schedule filed with and referred to in the amended defence asserts set-off of what properly characterised are unliquidated damages for breach of contract and for negligence claimed by Multichoice over the entire period of its dealings with Cooling. [47] It was not before the original adjudicator or the Appeal Tribunal but appears to have been filed pursuant to the latter’s order to which I referred earlier. -- 9 of 29 -- 10 Unliquidated Damages [48] The damages claimed by Multichoice are unliquidated because whether and to what extent they are recoverable and in what amount involves application of the following legal principles and consideration of the Tribunal’s procedural rules. Not self-proving [49] Firstly, liability for damages for breach of contract or negligence is neither strict nor automatic. It is not established by mere assertion of damages for contractual breach or negligence in a defence or Schedule. Damages do not prove themselves. Liability and the amount of damages in compensation must be proved in accordance with well- established legal principles. [50] An example assists to illustrate this. [51] Where one contracting party invoices another for the cost or extra cost of purchasing goods elsewhere that in breach of contract were not supplied, the invoicing does not of itself establish the liability of the breaching party to compensate the injured party for them, nor where challenged does it prove that the loss was reasonably foreseeable and that the injured party acted reasonably in mitigating the loss. Statute/Common law [52] Secondly, in Queensland, liability for damages for breach of contract or negligence requires consideration of applicable statute and relevant common law guidance on principles of causation, contemplation - in the sense considered in Hadley v Baxendale15 as adopted and modified in the High Court of Australia,16 reasonableness, remoteness, and the duty of a damaged party at law to mitigate loss. [53] Several Queensland statutes apply. Civil Liability Act 2003 [54] The Civil Liability Act 2003 (Qld) (‘the CLAQ’), by section 4(1), applies to all civil claims for damages for harm, a term that encompasses all possible forms of loss including, by the definition of harm in Schedule 2 – Dictionary, economic loss. Economic loss is what is asserted by Multichoice. [55] Amongst others, a claim for damages for negligence such as is made by Multichoice in this case is on the face of it a claim within the broad scope of section 4(1). [56] Douglas, Mullins and Grant, learned authors of the annotated Civil Liability Act, refer to sections 9, 10 and 11 of the Act as a checklist of matters for necessary proof or non- exclusive consideration in breach adjudication. [57] They refer to Justice Beazley’s observation in New South Wales v Mikhael [2012] NSWCA 338, [75] regarding the New South Wales equivalent of the CLAQ as follows. 15 Hadley v Baxendale & Ors [1854] EWHC J70. 16 A well-researched succinct summary of which appears at page 10 in a paper by High Court Justice James Edelman jointly authored with former High Court Associate Lauren Bourke presented in a lecture delivered on 1 November 2017, published at https://cdn.hcourt.gov.au/assets/publications/speeches/current-justices/edelman/edelmanj1nov17.pdf -- 10 of 29 -- 11 (I)t …. enacts in statutory form the common law test of breach of duty … (but) despite the closeness of the statutory regime to the common law test, it is the statute to which regard must be had. [58] Section 9 of the CLAQ regarding the standard of care prescribes general principles, section 10 prescribes other principles, section 11 prescribes general principles concerning causation, and section 12 provides for onus of proof. Sale of Goods Act [59] There is also the Sale of Goods Act 1896 (Qld) (‘SOGAQ’) which regulates the sale of goods in Queensland and makes provision for liability for breach of contract (my italicisation) and the assessment of damages in that event. [60] A claim for damages for breach of contract such as is made by Multichoice is clearly within the scope of the SOGAQ. [61] Section 3 (Definitions) says “action” includes “counterclaim and set-off,” “plaintiff” includes a “defendant counterclaiming,” “fault” means” wrongful act or default,” “goods” includes “all chattels personal other than things in action and money,” and “property” means “the general property in goods and not merely a special property.” [62] Section 52(1) provides that a buyer may maintain an action for damages against a seller for non-delivery of goods for wrongful neglect or refusal and section 52(2) provides that the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the seller’s breach of contract. [63] Section 52(3) provides that where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered or, if no time was fixed, then at the time of refusal to deliver. [I explain to those who do not know that prima facie literally means ‘at first sight’ or ‘based on first impression’ in common law jurisdictions, denoting evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact.]17 [64] Section 55 provides that the SOGAQ does not affect the right of a buyer or seller to recover interest or special damages recoverable by any law or to recover money paid when the consideration for the payment has failed. [65] The common law applies in those events. Cause of action/claim [66] Thirdly, a claim for unliquidated damages for breach of contract or for negligence must rely on a cause of action, the adjudication of which requires legal process18 in approved form filed in a forum with jurisdiction to decide it. 17 'Prima facie’ Wikipedia (Web page, last edited 12 April 2024) <https://en.wikipedia.org/wiki/Prima_facie>. 18 “Any formal notice or writ by a court obtaining jurisdiction over a person or property”: ‘Legal Process’ Wikipedia (Web page, last edited 5 April 2024) <https://en.wikipedia.org/wiki/Legal_process>. -- 11 of 29 -- 12 [67] Legal process in the context of the definitions in the SOGAQ includes process in an action, a counterclaim and set-off, and a defendant counterclaiming, but (relevantly) not a defence claiming set-off of unliquidated damages. Tribunal process [68] Legal process in the Tribunal’s minor civil dispute jurisdiction under the QCAT Act and the QCAT Rules is initiated by a relevant person applying to the Tribunal pursuant to section 12(1) to deal with a dispute by filing an application to the Tribunal pursuant to Rule 7 to deal with a matter in the approved form or electronically or in the way stated in Rule 10 where there is no approved form or, where permitted, by filing a counterapplication instead of a separate application pursuant to rule 48. PD 9 of 2010 [69] See also Practice Direction 9 of 2010 regarding applications for a default decision on claims for unliquidated damages and in footnote 1 the definition of “applicant” as including “a party who has brought a counter-application – see QCAT Rule 48.” Also, see the explanation in footnote 2 of what “Unliquidated damages” means. Response [70] Fourthly, in the overall context, a Response to a minor debt claim in the approved form filed pursuant to Rule 45 is not an application, nor is it a claim. The rule prescribes what it must contain in responding to a claim. No counterapplication [71] Fifthly, this Tribunal cannot in effect decide a counterapplication, whether formal or informal, for damages in a proceeding for a minor civil dispute where its own statute and the following rules prohibit it. Rules 48 and 49 [72] Specifically: (a) Rule 48(3) of the QCAT Rules prohibits a Respondent from making a counterapplication in proceedings for a minor debt in the Tribunal’s minor civil dispute jurisdiction, whereas rule 48(1) and (2) permits a counterapplication in any other minor civil dispute. (b) In circumstances suggesting that, but for the prohibition, a counterapplication could have been brought, Rule 49(1) of the QCAT Rules empowers the Tribunal to order that they be dealt with as a separate minor debt claim19 (my italicisation) and give appropriate directions. However, a claim for damages for breach of contract and negligence, even if made in a parallel trader/trader claim in the Tribunal, is not a claim for a minor debt. Purpose of Rules 48 and 49 [73] It seems to me that the intent of the legislature and the legislative purpose of Rules 48 and 49 envisaged was to avoid an imbroglio of epic proportion in an application for minor debt that has arisen in the present proceedings that inevitably flies in the face of the objects of economical, informal, and quick adjudication prescribed in section 19 Cf. a “separate minor civil dispute” which is not the phrase used in Rule 49(1). -- 12 of 29 -- 13 3(b) consistent with the Tribunal’s functions prescribed in section 4(c) of the QCAT Act. No Waiver or Relaxation [74] Rules 48 and 49, though apparently procedural in character, are not in my opinion susceptible to waiver or relaxation pursuant to section 61(1)(c) of the QCAT Act because a waiver would likewise fly in the face of the statutory objects and functions of this Tribunal to which I have referred. Again, that cannot have been the legislative intention. [75] However, if I were incorrect in that interpretation, section 61(3) of the QCAT Act itself prevents the Tribunal from waiving compliance with a procedural requirement if doing so would cause detriment or prejudice not able to be remedied “by an appropriate order for costs or damages.” [76] I have no statutory power in these proceedings for a minor debt to order the remedy so a compliance waiver cannot be ordered because the prevention in section 61(3) applies absolutely in the circumstances. Summary [77] In summary, for these and the earlier reasons, I may not treat the Schedule of financial loss and the Scott Schedule of Multichoice as an informal counterapplication for damages. [78] The unliquidated damages articulated are not justiciable in the present proceedings. Reply to Amended Response - 31 August 2023 [79] In its Reply, Cooling asserts the following. Invoice 210092 The goods did arrive in January following the Christmas break. Cooling issued a credit note for $1,094.50 for damaged goods for this and other invoices. The plastic corners were subsequently sent and arrived on 10 March 2022 but Multichoice did not take them when vacating. Mr Esplin was only banned from the building from 8 July 2022 when he threatened to punch Mr Bartlett when collecting goods as a result of mediation. Invoice 2100093 There was no agreement that plastic corners would be delivered on 21 January 2022. Delivery dates were not guaranteed. They were delivered on 10 March 2022. The only reason Multichoice have still not received the plastic corners is “that they are refusing to pay for these or any other goods they have ordered and taken from Cooling and Heating Equipment, which is in breach of the contract they entered into when they placed the purchase orders.” A credit note was given for any damaged items (even) where not returned. Invoice 220002 The container for this invoice arrived in Townsville on 16 February 2022 and delivered to Airmaster in Mansfield on 25 February and 9 March 2022 respectively. Mr Bartlett asked ER Warehousing to unpack Mutichoice filters which they failed to do but they were delivered to Airmaster. Mr Esplin collected some there and Jeremy Bree (Cooling and Heating) collected the -- 13 of 29 -- 14 others before Multichoice vacated the warehouse. Multichoice has taken goods from all the invoices Cooling and Heating is claiming for. When Clinton Esplin vacated our building, he told Adrian Bartlett he would be collecting a few boxes, He hired a 3 tonne Pantec Truck which was filled with his filters. Clinton Esplin tried to make out that this truck already contained boxes but this was a fabrication of the truth. At this period in time COVID and the floods were causing food shortages at supermarkets, also the Maryborough River flooded, delays in freight were common and not unusual and Multichoice was area of this. The delay was only a few weeks not months. The statement Multichoice had to purchase goods elsewhere at three times the cost is a tactic to avoid payment. [80] Appendix P to the Reply to Amended Response is a Schedule of Goods ordered by Multichoice retained by Cooling in which Cooling says that it is not contractually liable to Multichoice for any of the claims for set-off referred to in the Amended Response and Scott Schedule. On my analysis above, that assertion is correct. Orders – 9 November 2023 [81] I part heard the dispute on 9 November 2023. [82] I ordered that Multichoice collect from Cooling and Cooling make available for collection on 14 November 2023 at 9.30am all the items in Appendix P attached to the Order because there seemed to me to be no proper legal basis on which goods the property of Multichoice could continue to be withheld and to avert any further “possibility” of judgment for the wrong sum about which the Appeal Tribunal had expressed concern in the reasons. Partial non-compliance [83] Cooling did not fully comply with the Order that it make available the retained goods referred to in Appendix P for collection by Multichoice. Amended Application for minor debt – 6 December 2023 [84] Cooling applied to amend its claim in a Form 40 Application filed on 4 December 2023 in the following terms. Goods Claiming for IV 210092 $12,543.30, IV 210093 $3,630.00, IV 220001 $1,831.50. IV 220002 $9,050.80, less Credit CN210092 - $1,094.50, less Credit CNIV3790 - $319.00, Total $25,642.10 Less Credit CN220002 & 1 - $3,664.10 (plus) Non-Collection of Goods/Storage $3,022.00, Total $25,000.00 [85] The added invoice 220001 is for $1,831.50 for the following items. 40 x MP6-666-F6 MultiPocket Bag Filter Pocket F6 – 6 Pocket 592x592x535 $640.00 ex GST 5 x MP6-666-F7 MultiPocket Bag Filter F7 – 6 Pocket 592x592x535 $85.00 ex GST 50 x MP6-636F7 MultiPocket Bag Filter F7 – 3 Pocket 287x592x535 $500.00 ex GST 44 x MP6-636F6 MultiPocket Bag Filter F6 – 3 Pocket 287x592x535 $440.00 ex GST Subtotal $1,665.00 plus GST $166.50 Total incl GST: $1,831.50. -- 14 of 29 -- 15 [86] The liability of Multichoice for Invoice 220001 in the amount of $1,831.50 is not in dispute.20 [87] The following were Cooling’s reasons for requesting the further amendments. Following the recent orders by the court on the collection of goods, and the rejection of some of those goods by Multichoice filtration we have adjusted our claim accordingly as per the table above and the attached invoices and credit notes. Note that the damage to the goods has been caused by being left in our warehouse for nearly two years. We have given credit despite at the time of writing none of the goods have been returned and we have not been allowed to collect them. We are very motivated to end this case and not take up any more of the courts time. [88] It is convenient at this juncture to say that I do not accept that Multichoice “left” the goods in Cooling’s warehouse as alleged. [89] The truth is that they were detained by Cooling and Mr Esplin subsequently was prevented by Mr Bartlett from collecting them, as will appear from my analysis of the evidence later. Orders - 6 December 2023 [90] I ordered that Cooling’s claim be so amended at the commencement of the hearing on 6 December 2023. [91] In respect of Appendix P to the Reply filed previously, I ordered the following. (a) Cooling make available for collection on Friday 8 December 2023 the items in Tax Invoice 220002 dated 28 February 2022 described as Stainless-Steel Holding Frame pieces and provide Multichoice with an inventory of them. (b) Multichoice return to Cooling any damaged items at the same time with an inventory of them. [92] Multichoice complied21 with the Order by filing on 14 December 2023 and serving an inventory and returning to Cooling: (a) 22 F6 592x592x535 MultiPocket Bag Filters; and (b) 67 F7 592x592x535 MultiPocket Bag Filters. Partial non-compliance [93] Cooling again only partly complied with the Order,22 notwithstanding that in evidence on 6 December 2023 Mr Bartlett assured me that Cooling still retained all the Frames referred to in Invoice 220002 in its warehouse. 20 Transcript 6 December 2023, T1-82 lines 1 to 21. 21 See the email and inventory sent to the Courthouse and Cooling on 14 December 2023. 22 Ibid. -- 15 of 29 -- 16 [94] Cooling only made the following items available for collection by Multichoice on 8 December 2023: (a) 30 (of 140) 610x70 Frames. (b) 10 (of 60) 305x70 Frames. (c) 30 (of 160) 610x95 Frames. (d) 10 (of 80) 305x95 Frames. [95] Mr Bartlett said in evidence on 30 January 2024 that the three hundred and sixty (360) Stainless-Steel Frames not made available for collection by Multichoice on 8 December 2023 had been used by Cooling in its own manufacturing processes but he did not say when that occurred. [96] Contradicting his previous evidence, Mr Bartlett on this occasion swore the truth of the following. I was unaware that they used them. They were stored in an unusual (sic) place. The guys have just taken them when they saw fit and, obviously, using them up.23 Inventory of unavailable goods [97] In a note to the Inventory of goods listing those not collected from Cooling filed on 14 December 2023, Multichoice says as follows. Not ONE Purchase has been completed for Invoices on the QCAT Application. Therefore – Inv 220002 will not be paid until all goods are completed and delivered. [98] I will treat that as an additional defence raised by Multichoice because QCAT is not a court of pleading but it depends for its success on whether each of the contracts including for Invoice 220002 for supply of goods were entire, that is – contracts which by their terms required complete performance of the obligation to supply as a condition of liability to pay the purchase price for them. Further Amended Application for minor debt – 30 January 2024 [99] On 30 January 2024, upon the oral application of Cooling at the hearing, I ordered its claim be further amended and reduced to the sum of $22,506.00 made up as follows. Invoice 210092 - $12,543.30 Purchase Order 3095 - $12,543.30 Goods delivered – Jan/Feb 2022 Invoice 210093 - $3,630.00 Purchase Order 3107 - $3,630.00 Goods delivered Jan/Feb 2022 Invoice 220001 - $1,831.50 Purchase Order 3139 - $8,470.00 Goods delivered March 22 Invoice 220002 - $9050.80 Purchase Order 3135 - $9,050.80 Goods delivered March 22 Total - $27,055.60 23 Transcript 30 January 2024, T1-2, lines 41 to 43. -- 16 of 29 -- 17 Less Credit Note 220002&1 - $3,214.2024 Credit Note 210092 - $1,335.40 Balance - $22,506.00 [100] In so amending the claim, Cooling appropriately abandoned its previous claim for $3,022.00 for goods/storage made in the amendment on 6 December 2023 because it was a claim for damages, not a claim in debt.25 Further Orders – 15 February 2024 [101] Though I reserved my decision on 30 January 2024, I subsequently ordered on 15 February 2024 that the matter be further heard on the papers for clarification of the following apparent inconsistencies in the Further Amended Application for minor debt. [102] I ordered that Cooling on or by 22 February 2024 file and serve an affidavit sworn by Mr Bartlett explaining – (a) Why in the claim as amended on 30 January 2024 there is no reference to CNIV3790 for $319.00 referred to in the claim as amended on 6 December 2023. (b) Why the amount of $3,214.20 for Credit Note CN220002 and 1 in the claim amended on 30 January 2024 is $449.90 less than the amount of $3,664.10 for the same Credit Note in the claim as amended on 6 December 2023. (c) Why the amount of $1,094.50 for Credit Note 210092 in the claim amended on 6 December 2023 is increased by $240.90 to $1,335.40 in the claim as amended on 30 January 2024. [103] I ordered that Multichoice on or by 29 February 2024 file and serve an affidavit of Mr Esplin explaining whether and if so in what respects and why he disagreed with Mr Bartlett’s explanation. Affidavits [104] It is convenient here to refer to the content of the affidavits of Mr Bartlett and Mr Esplin respectively. Mr Bartlett [105] In his affidavit sworn 21 February 2024, Mr Bartlett explained the following reasons for the changes from the “original case.” (a) CNIV3790, this was in the initial claim due to the claim being over $25,000, this in no longer part of our claim for payment of outstanding invoices. (b) Page 2 – Credit note CN210092 has increased in value due to the change in quantity of the CB-Std Cardboard V Form filters from 20 to 22 and the additional credit of $175 for replacement cardboard boxes. 24 Previously $3,664.10 as of 6 December 2023. 25 Transcript 30 January 2024, T1-4, lines 18 to 48; T1-5, lines 3 to 15 and lines 44 to 48; T1-6, line 1. -- 17 of 29 -- 18 (c) Pages 3 and 4 – Credit note CN220002 and 1 is different in value due to the parts of stainless-steel filter frames being collected by Multichoice Filtration and the different amount of filters returned due to damage to the MP6-666-F6 Multipocket Bag Filters the correct credit note is now attached. Mr Esplin [106] In an affidavit of service sworn 28 February 2024, Mr Esplin swore to having emailed the following written response to Cooling. (a) The credit note CNIV3790 …. Its not a claim by C.H.E. for unpaid invoices … It is actually money owed by C.H.E. to Multichoice … The C/N was raised when C.H.E. decided NOT to pay Multichoice for the goods and services supplied and it remains unpaid. See attached email of Purchase Order from Jeremy Bree and invoice from Multichoice page a1 and a2. (b) OK (c) OK BUT …. It’s all part of C.H.E’s case whereby, from the outset, the truth was tainted and this all shows by the credit notes, damaged and missing goods. We all knew Adrians (sic) was not going to deliver these goods ordered by Adjudicator Walsh but yet they still signed affidavits and swore on the bible. Its like getting away with murder. Perjury for sure. The matter laid down (by the first Adjudicator) had no facts (sic) and there is (sic) still no facts (sic) on C.H.Es part. There (sic) claim and story told has changed so many times …. Unbelievable. They have not proved: Prices they paid for goods according to our contract to add 20% Signed Delivery Dockets by MCF and freight companies bringing these goods down from whenever. Customs entries to show what has been brought into the country, as these goods were never in the country to begin with, yet they invoiced for them. The facts are: Invoices, Multichoice has paid for all these items not delivered Incl Stainless Steel Frames and loss of business in manufacturing, together with losing sales on the products owned by Multichoice that C.H.E. has illegally kept. See all the counter invoices in previous responses (Scott Schedules) Our story has never changed. They owe us lots, monetary wise and defamation apologies. [107] I treat the content of Mr Esplin’s response in (a) and (c) above as further explanation of Multichoice’s defence but reiterate what I said in Cooling and Heating Equipment Pty Ltd v Multichoice Filtration Pty Ltd [2023] QCAT 399 at [18] to [19] concerning irrelevant allegations including defamation that are mere distraction and not within this Tribunal’s jurisdiction to adjudicate. Evidence Bartlett/Esplin Affidavits [108] I make the following findings of fact on the affidavits of Mr Bartlett and Mr Esplin to which I have just referred. [109] I am satisfied with the explanation on oath by Mr Bartlett in his affidavit for the omission and variances which my orders addressed. -- 18 of 29 -- 19 [110] I am satisfied that the amount claimed by Cooling for the goods referred to in the claim as amended on 30 January 2024 is very belatedly the correct amount owing by Multichoice before permissible set-off. [111] I accept Mr Esplin’s evidence that CNIV3790 is a credit note for money ($319.00) owed by Cooling to Multichoice for goods supplied and services rendered previously, and therefore that the credit is available for set-off against the liability of Multichoice as ascertained on the claims made in the present proceeding. [112] I note Mr Esplin’s admission that Credit note CN210092 has increased in value due to the change in quantity of the CB-Std Cardboard V Form filters from 20 to 22 and the additional credit of $175 for replacement cardboard boxes. Oral Evidence [113] I find the following facts on the oral evidence of the parties in re-hearing before me. [114] Cooling is an Australian registered company that imports and sells air-conditioning equipment, componentry and filtration materials sourced from China. [115] Multichoice is a registered Australian company that buys and assembles componentry and materials from wholesale sources to make up finished product which it supplies to intermediaries. [116] Between 2020 and 2022, Multichoice was a wholesale customer of Cooling. [117] By oral agreement, Multichoice also rented bays in an area within Cooling’s warehouse on the Gold Coast where it received ordered stock from Cooling on preferential credit terms. [118] Multichoice had 30 days from the end of the month after the month in which the goods ordered were delivered to the warehouse within which to make payment to Cooling and Heating.26 [119] The parties agreed as follows. [120] Multichoice would issue a Purchase Order to Cooling for the components and materials to be supplied, with acceptance occurring by Cooling ordering the goods from a Chinese supplier overseas27 and notifying Multichoice of the estimated delivery date.28 [121] No freight cost applied. [122] Time for delivery of goods ordered was not of the essence.29 Delivery times depended on circumstances overseas and within Australia, mostly beyond the parties’ control.30 [123] Ordered goods would only be consigned when Cooling had a container of its own goods coming from China with sufficient spare space for them.31 26 Transcript 9 November 2023, T1-12 lines 18 to 34; T1-13 lines 3 to 16. 27 Ibid, T1-13, lines 18 to 44. 28 Ibid, T1-14, lines 10 to 16. 29 Ibid, L1-14, lines 30 to 35; see also section 13(1) of the SOGAQ. 30 Ibid. 31 Ibid, T1-14, lines 20 to 23; lines 39 to 47. -- 19 of 29 -- 20 [124] Delivery date estimates would be notified orally,32 likewise revised estimates.33 [125] Cooling would issue a credit to Multichoice for goods ordered but not delivered to warehouse and for goods delivered in damaged condition returned by Multichoice which is what occurred in the course of their dealings. [126] Each Purchase Order of Multichoice, upon acceptance by Cooling, constituted a separate contract.34 [127] Consistent with each Purchase Order from Multichoice being a separate offer and each Invoice from Cooling signifying a discreet acceptance of that offer, a letter of demand from Cooling’s solicitors to Multichoice dated 21 April 2022 stated the following.35 It is our client’s position that you are in breach of the terms and conditions pertaining to each (sic) supply contract with our client …. [128] Cooling’s solicitors in the same letter said as follows. We also refer to our client’s terms and conditions which provide at clause 7 that invoices are to be paid within 30 days. [129] The standard terms and conditions are those attached to a further letter from Cooling’s solicitors dated 29 April 2022 filed with the Application for minor debt and included provision in 5G and 6A and B for payment by the customer of storage costs according to an agreed formula in the event Cooling was awaiting delivery instructions or for any other reason “beyond the control of the Company” at “$7.50 per m 2 per week;” and provision in 11A for retention of title of ownership of all goods until paid for in full. [130] However, the standard terms and conditions were not the agreed terms and conditions of each contract so they did not apply to the contracts between the parties and are (I find) irrelevant in the present dispute. [131] Goods ordered by Cooling from China on a Purchase Order of Multichoice came direct to Brisbane from China for customs clearance and delivery to the Gold Coast warehouse. [132] All went well with that arrangement until in about August or September 2021 when Cooling commenced bringing goods from China in containers consigned to a customer called Northern Air in Townsville for customs clearance there. [133] When cleared, Northern Air unloaded containers, separated out any Multichoice goods, and road freighted them on to the Gold Coast warehouse of Cooling.36 Northern Air was the agent of Cooling for that purpose. [134] The new arrangement caused delay between customs clearance in Townsville and receipt of goods at Cooling’s warehouse on the Gold Coast.37 On occasions, some goods ordered did not arrive and others arrived damaged. 32 Ibid, T1-15, lines 6 to 28. 33 Ibid, T1-15, lines 33 to 36; T1-16, lines 1 to 9. 34 Ibid, T1-16, lines 12 to 19. 35 Attached to the Application for minor debt filed on 11 May 2022. 36 Ibid, T1- 17, lines 45 to 48; T1-18, lines 1 to 4; T1-19, lines 4 to 48; T1-20, lines 1 to 40. 37 Ibid, T1-18, lines 8 to 9. -- 20 of 29 -- 21 [135] Multichoice acquiesced in the altered arrangement, agreeing to it38 for a time. [136] Irrespective of whether the port of clearance was Townsville or Brisbane, delivery of goods ordered by Multichoice to Cooling’s warehouse on the Gold Coast constituted delivery to Multichoice there by virtue of the warehouse tenancy.39 [137] On 24 January 2022, Mr Esplin told Mr Bartlett he did not want to wait longer for goods ordered and that he was unhappy with the condition in which goods and packaging were arriving from Townsville.40 [138] Mr Esplin terminated the agreement in early March 2022 because it failed to deliver some goods identified in the Cooling’s Invoice 218892.41 Cooling terminated the preferential credit agreement with Multichoice as a result. [139] Cooling demanded payment outstanding on Invoices and restricted warehouse access on 8 March 2022 by changing the locks and only permitting Multichoice-supervised entry for a limited period afterward.42 [140] I make the following further findings of fact on contentious evidence in case it may later be said that I did not consider all the evidence of the parties. [141] Mr Bartlett’s evidence of the reason for cancelling the credit agreement was as follows. The reason we cancelled the credit was because it was for invoices that were due in January, which he hadn’t paid for in March. So that’s when we cancelled credit and that’s when he started getting really funny and invoicing us for goods, buying goods elsewhere.43 [142] I have already found that the credit agreement came to an end because the contractual arrangements between the parties ended at that time. [143] Consistent with that is the letter of demand from Cooling’s solicitors dated 29 April 2022 in the following terms. Our client instructs no further credit will be granted to you as our client intends to terminate all business activity following receipt of moneys owed. Your invoices remain payable and have been outstanding for over sixty (60) days. [144] Ultimately, nothing turns on the cancellation of credit. [145] Mr Esplin’s reason for withholding payment due on invoices was as follows. Well, we hadn’t, I didn’t receive many of the goods. I’m not going to – and it works for Queensland Health and Queensland Government, including the courthouses, if they do not receive goods, they do not pay that invoice. That’s it. I didn’t receive so I will not pay that invoice. You have to receive it in full or they have to communicate with me to say that only half of the goods are coming, 38 Ibid, T1-23, lines 8 to 20. 39 Ibid, T1-18, lines 16 to 34; T1-39, lines 17 to 34. 40 Ibid, T1-23, lines 32 to 48. 41 Ibid, T1-24, lines 9 to 34. 42 Ibid, T1-24, lines 37 to 48; T1-25, lines 1 – 21. 43 Ibid, T1-25, lines 27 to 30. -- 21 of 29 -- 22 and the other half are in Townsville, and they will come in two- or three-weeks’ time or whenever it is, but they did not communicate at all.44 [146] I do not accept Mr Esplin’s evidence (referring to the goods) that Multichoice had to “receive it in full” or that Cooling “did not communicate at all” because receipt “in full” as a condition of payment was never a term of the agreement between the parties and there was some communication though I do accept that Mr Esplin considered communication insufficient. [147] I find that Mr Esplin knew at that stage what goods had not been received, what goods had been received, what goods were received damaged, and what goods were delayed somewhere in transit between Townsville and the Gold coast, hence his dissatisfaction. [148] Nothing turns on the reasons for Multichoice withholding payment. What matters is that payment was not made which is why the parties find themselves here. [149] Regarding Mr Esplin’s reference to Queensland Health, on his oral evidence on 30 January 2024 I find that Multichoice never dealt with Queensland Health, rather it contracted with market intermediaries, HVAC air-conditioning companies45 who may have supplied to Queensland Health. [150] Nothing turns on that for present purposes. I find that agreements between Queensland Health and intermediaries for supply of Multichoice product are irrelevant. [151] Multichoice vacated the warehouse on 15 March 2022.46 However, I find that it did so as best it could and incompletely at that time. [152] I accept as more probable than not Mr Esplin’s evidence as follows. I sent one of my guys to fetch the good over there and he started loading some of our goods and some of the goods that were part of 210092, okay, which we – and we don’t know how it works, so – and half the stuff that was in the warehouse, of ours, on the truck but they didn’t let us take the stuff that was still belonging to me as well, and it still remains there.47 …… Carbon filters; Carbon filters and aluminium framing. About 90 lengths of aluminium, I think it was. I think it was. I think it worked out about 94. And there’s 46 Carbon filters.48 …… All of the items were my company’s property.49 [153] Again, however, nothing ultimately turns on the vacate date. [154] Consistent with that evidence, I accept that goods detained by Cooling were those identified in Appendix P – MCF Goods Held as appears at page 53 of the Reply of 44 Ibid, T1-25, lines 38 to 44. 45 Transcript 30 January 2024, T1-23, lines 4 to 30. 46 Transcript 9 November 2023, T1-26, lines 8 to 11. 47 Ibid, T1-26, lines 12 to 16. 48 Ibid, T1-26, lines 26 to 41. 49 Ibid, T1-28, lines 39 to 48. -- 22 of 29 -- 23 Cooling and Heating filed on 31 August 2023 to the Amended Response of Multichoice. [155] Appendix P itemises withheld goods eventually collected by Multichoice on 8 December 2023 as follows. Goods held and paid for (sic) by Multichoice comprising Honeycomb Carbon Granule Panel Filters of various dimensions and 90 mm C Channel at a total price of $2,593.20. Goods at a total price of $8,818.00 unpaid (sic) by Multichoice comprising Multipocket bag filters of various dimension, 45 mm C Channel, 45 mm plastic Corner Pieces, and Stainless-Steel Filter Frames (sic) of various dimensions. [156] I find that the first category of goods were the same goods that Cooling at mediation had agreed Multichoice could collect from its warehouse which it subsequently refused to make available when Mr Esplin attended to collect them. [157] As there is no justiciable claim by Multichoice in these proceedings for unliquidated damages, nothing turns on the fact of the detention of the goods. [158] The asterisked note below the table in Appendix P reads as follows. Please note these prices for the stainless-steel Frames are incorrect, this is due to Mr Esplin committing fraud (sic) by submitting prices without converting to US Dollars and adding 20%. [159] I find that the phrase “submitting prices” in the note meant the prices for the items set out in Multichoice’s Purchase Order that Cooling accepted by placing its Order with the Chinese supplier and invoicing Multichoice. [160] I find that whether a margin of 20% was in fact added in any Purchase Order and related Invoice issued in acceptance was not determinative of what ultimately the agreed price was. [161] I find that the parties proceeded on the basis that the prices invoiced for the items ordered were the prices payable. Mr Esplin put his own costings in Purchase Orders. They were replicated identically in Cooling’s Invoices.50 [162] I find that the agreed price was the item price in the Purchase Order issued by Multichoice accepted by Cooling issuing an Invoice for the same item price to it. [163] I am not prepared to find according to the Briginshaw51 standard of probability that Mr Esplin committed fraud in the alleged respect. I feel no actual persuasion of that being the case. [164] Even if Mr Esplin failed to convert the prices for Stainless Steel Frames to US Dollars and add a 20% margin – thus benefitting Multichoice with a lower supply price if the order were accepted, which it was – nothing turns on it. [165] In response to my question at the hearing on 9 November 2023 about whether the goods referred to in Appendix P were still retained by Cooling, Mr Bartlett said the following. 50 Transcript 6 December 2023, T1-87 lines 8 to 47 and T1-88 at lines 1 to 6. 51 Briginshaw v Briginshaw [1938 ] HCA 34. -- 23 of 29 -- 24 They’re in our warehouse, yes.52 He never collected them.53 He took all the filters that he’d ordered from us, as many as he could fit in the truck, that he hadn’t paid for. He left the items that he purchased directly from China, and we transported them for him.54 [166] Mrs Bartlett said in evidence that the reason the goods weren’t taken by Multichoice was because they were “too heavy for the guys to lift”55 and Mr Bartlett agreed, saying this was “the only reason.”56 [167] I reject that evidence of Mr and Mrs Bartlett because it is inherently improbable and untrue. [168] Time and again during hearings they said that Multichoice goods were retained by Cooling because of outstanding invoices. That, I find, was the real reason for detaining the goods of Multichoice. [169] However, I accept Mr Bartlett’s evidence concerning when ownership of ordered goods vested in Multichoice as follows. Mr Bartlett: So, under the Sale of Goods Act, the goods passed to him when he ordered them.57 So … its part 3, division 1, section 20, I believe.58 [Adjudicator: Yes, section 20 says: Property passes when intended to pass. When there is a contract for the sale of specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intended it to be transferred. For the purpose of ascertaining intention, regard has to be had to the terms of the contract, the conduct of the parties, and the circumstances of the case. Section 21 then says: Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: (1) where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made.]59 [170] I accept Mr Bartlett’s evidence that if ordered goods did not arrive or arrived damaged then the cost of them would be credited back to Multichoice and I find that the parties intended in those events that title or property in undelivered goods was lost by Multichoice and reverted to Cooling consistent with the provisions of section 20 of the SOGAQ. 52 Transcript 9 November 2023, T1-26, lines 43 to 48. 53 Ibid, T1-27, lines 1 to 4. 54 Ibid, T1-27, lines 8 to 10. 55 Ibid, T1-27, lines 13 to 14. 56 Ibid, T1-27, lines 15 to 22. 57 Ibid, T1-57, lines 5 to 6; also see SOGA, s. 20, s. 21. 58 Ibid, T1-57, line 8. 59 Ibid, T1-58, lines 10 to 26. -- 24 of 29 -- 25 [171] Alternatively, if that is not correct, I find that there was an implied term of each contract that if ordered goods did not arrive or arrived damaged then the cost of them would be credited back to Multichoice and title in undelivered goods was lost by Multichoice and reverted to Cooling in those events. [172] I make that finding adopting the objective approach of the High Court in Hardingham v RP Data Pty Ltd [2022] HCA 39 in determining what a reasonable person would have known, having regard to the parties’ conduct and surrounding circumstances. To the extent the term was not express, it was necessarily implied for commercial efficacy. [173] As to when payment was due, I put the following to the parties. Adjudicator Walsh: Unconditional contract. Failure to deliver is another thing, but unconditional contract is, it seems to me, they’re your goods. That is the goods held in the warehouse unpaid, Mr Esplin. And if they are your property there’s no basis on which Cooling and Heating can deprive you of them because there was no term in the contract that, if you didn’t pay for goods, that you couldn’t receive them. In fact, Mr and Mrs Bartlett, the reverse was the situation because payment would only be made at the end of the month following the date of delivery.60 [174] Mr Esplin said: “That’s what I said to her. That’s what I told them.”61 I accept that evidence because it is inherently probable. [175] Mrs Bartlett said Multichoice was outside the credit terms, having not paid the January 2022 invoice62 and that when Multichoice placed the order/s it entered the terms and conditions on the website of Cooling and Heating.63 [176] I have earlier rejected the assertion that the website terms and conditions applied. [177] I find it ironic that Mrs Bartlett should complain of Multichoice being outside its credit terms as of March or April 2022 in circumstances where Cooling only made the last of the Multichoice goods available for collection on 8 December 2023 under compulsion of the Tribunal order and it took Cooling until 30 January 2024 to correctly state the net balance of indebtedness of Multichoice. [178] I make the following other findings for completeness. [179] Cooling had no right of retention of Multichoice goods under the provisions of the Sale of Goods Act 1896 (Qld) because – (a) Multichoice received possession of the goods upon delivery to Cooling’s warehouse, and therefore section 41(1)(a) of the Act concerning an unpaid seller’s implied right to retain the goods pending payment was lost at that point. (b) Cooling could not retain the goods as an unpaid seller pursuant to section 42 of the Act either, for the same reason. 60 Ibid, T1-58, lines 36 to 44. 61 Ibid, T1-58, line 45. 62 Ibid, T1-59, lines 1 to 9. 63 Ibid, T1-59, lines 16 to 20. -- 25 of 29 -- 26 (c) Section 43 of the Act relating to part delivery of goods does not assist Cooling because it could not exercise a right of retention of the balance of goods, for the same reason. (d) Section 44 of the Act concerning termination of the right of retention therefore does not apply. [180] There is in any event no provision in the SOGAQ that conferred on Cooling a right of retention over goods owned by Multichoice that it acquired from another seller. [181] In summary, Cooling had no contractual or statutory right to retain the goods of Multichoice as it did. Its only residual right was to sue for recovery of unpaid amounts invoiced64 as it has done. [182] I accept Mr Esplin’s evidence on 9 November 2023 that Cooling’s detention of Multichoice property cost it extra money to order the same filters elsewhere.65 However, as I have earlier said, the remedy of Multichoice lies in an action for damages for breach of contract and negligence in a forum with jurisdiction, not in these minor debt proceedings. [183] I reject as untrue Mr Bartlett’s evidence that the only reason he had to buy filters elsewhere “is because he owed us the money, because he’s outside his credit clause”66 and refer (again) to what I have found above in that regard. I find as an inescapable fact that Mr Esplin would have to re-order withheld items from another source at a different price to satisfy orders from customers or risk loss of their custom and his reputation. [184] Mrs Bartlett’s evidence was that “if he doesn’t pay; we’d be idiots to keep on giving him goods.”67 Notions of idiocy aside, I find that Cooling’s directors were at least misguided in preventing Multichoice from retrieving its goods because neither the terms of contract nor provisions of the Sales of Goods Act 1896 (Qld) permitted the prevention. [185] Mr Bartlett said “(h)e was deprived because he hadn’t paid for them”.68 However, Cooling had no right to deprive Multichoice of the goods including those described in invoice 220002 in February 2022 which arrived that month.69 [186] In evidence on 6 December 2023 in response to my saying that Mr Esplin had put the figures in the Purchase Order, Mr Bartlett said the following. Yes, all right. I accept I made a mistake. We should not have accepted the Purchase Order, and we should not have invoiced him for that value. Well. We did.70 [187] Instead of revoking the invoice or amending it on the ground of misrepresentation or the (alleged) fraud, Cooling affirmed it.71 It therefore remained bound by the contract 64 Ibid, T1-60, lines 1 to 20. 65 Ibid, T1-46, lines 5 to 6. 66 Ibid, T1-46, lines 13 to 14. 67 Ibid, T1-46, line 33. 68 Ibid, T1-51, line 15. 69 Ibid, T1-51, lines 33 to 40. 70 Transcript 6 December 2023, T1-101, lines 20 to 38. 71 Transcript 30 January 2024, T1- -- 26 of 29 -- 27 formed by acceptance of the Multichoice Purchase Order, subject of course to the agreement between the parties. [188] For completeness, I find that the parties were bound by each contract between them as formed by acceptance of Multichoice Purchase Orders in issuing Invoices as agreed. Liability Entire Contract defence [189] In J. W. Carter, Contract Law in Australia (LexisNexis, 7th ed, 2018) at [28-22] and [28-23] the author refers to the definition of ‘entire contract’ as follows. An entire contract is one in which the parties have agreed, expressly or impliedly, that complete performance by the promisor is a condition precedent to the enforcement of the contract. In relation to the contract price, a contract is entire if it provides for payment of a lump sum and ‘no provision is made for setting off a portion of the consideration against a portion of the performance. Most of the cases concern this type of contract. Whether or not a contract is entire is a question of construction. The fact that the contract provides for payment of a lump sum is not conclusive. In other words, a contract which provides for a lump sum payment will not be entire unless construction of the contract shows the parties agreed that the sum becomes payable only on completion of performance.72 [190] I find that none of the respective contracts on which Cooling sues were entire. They were not lump sum contracts. Rather, each was subject to price adjustment for goods not delivered or goods returned damaged and provided for setting off a portion of the consideration against a portion of the performance in those events. [191] Simply put, complete performance by Cooling was not a condition of the indebtedness of Multichoice. [192] The price adjustment agreed for goods not delivered or goods delivered damaged but returned in circumstances where time was not of the essence of any of the contracts means that Cooling was never in breach of any of the contracts on that account during the two-year period of trading. [193] I find that Cooling did give Multichoice credit for all Filter Frames invoiced where undelivered or delivered damaged and that Cooling has not revoked any credits at any stage. [194] Mr Esplin of Multichoice admitted that there are no invoiced goods that were either not supplied or were supplied damaged for which Cooling has not at some stage been given a credit73 during his oral evidence.74 72 Footnotes omitted. 73 Transcript 6 December 2023, T1-94, lines 10 to 15. 74 Transcript 30 January 2024, T1-16 lines 40 to 45; T1-17 lines 1 to 47; T1-19 lines 44 to 45 read with T1-18 lines 1 to 24; T1-25 lines 19 to 44; T1-25 lines 45 to 46 read with T1-26 lines 1 to 47; T1-27 lines 1 to 6; Transcript 6 December 2023 T1-40 lines 24 to 30 and lines 35 to 47 read with T1-41 lines 1 to 16 and lines 18 to 46; T1-42 lines 1 to 30; T1-43 lines 10 to 21; T1-44 lines 1 to 42; T1-45 lines 1 to 11; T1-46 lines 25 to 43; T1-63 lines 15 to 32; T1-66 lines 39 to 47 read with T1-67 lines 1 to 15; -- 27 of 29 -- 28 [195] The defence of entire contract therefore fails. Set-off [196] Essential to my findings regarding the defence of set-off is understanding the fundamental distinction between set-off of a contractual indebtedness that is liquidated and a claim for set-off of unliquidated damages which I earlier explained is not justiciable in these proceedings. [197] Though I make no findings because the damages claim is not justiciable here, there does not appear to me to be any reasonably arguable basis upon which Multichoice could claim damages for breach of contract or negligence in respect of anything other than: (a) the unlawful detention of goods the property of Multichoice at the warehouse of Cooling; and (b) the conversion by Cooling of some of the property to its own manufacturing processes there sometime in the period 8 March 2022 to 8 December 2023 as belatedly admitted by Mr Bartlett on 30 January 2024 to have occurred. [198] Set-off of a liquidated indebtedness of Cooling to Multichoice against the liability for $22,506.00 applies in respect of the credit note for $319.00 that disappeared in the claim as amended on 30 January 2024. I accept that the credit was for goods and services supplied by Multichoice to Cooling, as explained by Mr Esplin in the attachment to his affidavit. [199] It is not open to Cooling on the one hand to approbate CNIV3790 in the amount of $319.00 for purposes of the amended claim on 6 December 2023 by bringing it to account and then on the other hand reprobate by removal of the credit from its claim as further amended on 30 January 2024. Other defences [200] None of the other defences of Multichoice are made out. Resultant liability [201] The net contractual liability of Multichoice to Cooling is therefore $22,187.00 before interest and the filing fee claimed. Interest/filing fee [202] I decline to order that Multichoice pay Cooling interest and the filing fee for the following reasons. [203] But for the detention of the goods the property of Multichoice and Mr Bartlett reneging on the general agreement reached at mediation to partially resolve the dispute, these proceedings would likely have ended relatively quickly. T1-80 lines 22 to 39; T1-82 lines 1 to 45 read with T1-83 lines 1 to 21 regarding Invoice 220001 and T1-83 lines 1 to 36; T1-91 lines 43 to 47 read with T1-92 lines 23 to 27; T1-93 lines 15 to 47; T1-94 lines 1 to 47 but particularly lines 10 to 15; T1-95 lines 15 to 45. -- 28 of 29 -- 29 [204] But for the unlawful detention and conversion by Cooling of goods the property of Multichoice, ascertainment of the correct amount finally owing by the latter would have been ascertainable and ascertained in April 2022, not in April 2024. [205] By their conduct before and during these proceedings, Mr and Mrs Bartlett have delayed justice and unnecessarily wasted the Tribunal’s limited resources to the detriment of other litigants patiently waiting in the queue of cases to be heard. [206] Multichoice on the other hand has not had to pay interest on capital to settle its net liability, much of it relating to goods received from Cooling and resold over two years. Time for payment [207] I will order Multichoice to pay Cooling $22,187.00 within 60 days in circumstances where Cooling’s (mis)behaviour and the shifting sands of its claim through several amendments has obstructed ascertainment of the correct amount owing by Multichoice until now. Stay [208] I have considered of my own motion whether I should stay the decision or part of it but have decided not to do so. [209] Rule 49(2) of the QCAT Rules provides that the Tribunal may in the circumstances envisaged in Rule 49(1) order that the enforcement of any final decision in the first proceeding be suspended for a time and on conditions it considers appropriate and give any appropriate directions in relation to the matter, but (again) the circumstances to which the latter refers are not the circumstances in this case. [210] I decline to exercise the discretion conferred by Rule 49(2) to stay enforcement of this decision because: (a) Multichoice has not in the period of more than two years since March 2022 chosen to launch its own proceedings in this Tribunal or elsewhere. It had the benefit of advice of a solicitor. Whether the solicitor so advised is not to the point. (b) It declined the invitation to have these proceedings transferred to the Magistrates Court in circumstances where that was obviously the appropriate course in circumstances where it maintained that after set-off Cooling would owe it money. (c) Multichoice could have part paid Cooling a significant sum toward the liability that it conditionally admitted in the original defence but did not do so. [211] Multichoice cannot in those circumstances reasonably expect a stay of this decision. [212] However, if so advised, it may litigate its own proceedings for damages in an appropriate forum with jurisdiction at its leisure. Order [213] I order that the Respondent pay the Applicant $22,187.00 within 60 days of today’s date. -- 29 of 29 --