AC Designs Pty Ltd v Your Point International Pty Ltd [2022] QCATA 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AC Designs Pty Ltd v Your Point International Pty Ltd [2022] QCATA 128 PARTIES: AC DESIGNS PTY LTD (appellant) v YOUR POINT INTERNATIONAL PTY LTD (respondent) APPLICATION NO: APL285-21 ORIGINATING APPLICATION NO: MCDO1888-20 MATTER TYPE: Appeals DELIVERED ON: 18 August 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member JR McNamara ORDER: Leave to appeal is refused and the appeal is dismissed. CATCHWORDS: APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where judgment against appellant for breach of contractual obligations – where appellant claimed that contractual obligations were suspended due to need to investigate complaint from the respondent – where the appellant alleged that the respondent had threatened to disparage the appellant – where the alleged threat did not suspend contractual obligations – where leave to appeal refused and the appeal dismissed APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] The appellant conducts a business which designs, produces, and installs business signage. The respondent is a business operator. The appellant has been represented in QCAT by Mr Hoang and the respondent by Ms Chen. [2] Ms Chen is also the former Secretary, and Vice President of the Australian Taiwanese Chamber of Commerce (‘ATCC’). The appellant is a member of the ATCC. The purpose of organisations such as these is to connect business owners to create opportunities and collaborate. -- 1 of 4 -- 2 [3] The respondent was moving business location and contracted with the appellant to create and install new signage. The contract was entered into in July 2020. The respondent paid the contract price of $2,167.00 in full in July 2020. [4] A dispute arose about when the sign was to be installed. In the hearing on 15 September 2021, after saying that the contract price was paid in full in July 2020 Ms Chen said: “And we … we say we are moving to the new place in the middle of August. And after we realise, we are going to move the new place, and we have no signage. … And that’s why we made the phone call. We say, “Okay. It’s fine if it’s too rush. We can wait.” But we just think we pay all the payment, but why you have no reason, and then just to – let us wait and no answer. And then so that’s why we asked them, and – and then – and then the – I – I forgot the lady’s name. She is not happy because we are not happy also. We say – we say, “If you can’t do this, you should let me know you can’t do this. You – after you get all the payment and you say you’d – you – well, you have to wait and we asked too – too quickly.” And that’s why I say, “Okay, because I am Vice President of the Australian [indistinct] Chamber of Commerce.” I say, “I will let my member” – I say, “I will let my member know your company is [indistinct]” – that’s it. And I didn’t …”1 [5] The QCAT Adjudicator asked Ms Chen if she thought it an abuse of her position to act in that way – and Ms Chen seemingly agreed that it was not appropriate.2 [6] Although the passage above is Ms Chen’s account of events, it does align with Mr Hoang’s assertion that Ms Chen might use her position with the ATCC to question the reputation of his business and adversely affect his staff member. [7] Things spiralled. The appellant informed the respondent that the installation of the signage would not be completed until the respondent could give assurances that no comments would be made to the ATCC. [8] The Adjudicator found that there were two separate issues at play. The first, contractual obligations for work paid for under the Australian Consumer Law.3 The second, an allegation of defamation – which the Adjudicator found should be dealt with separately. The Adjudicator found in favour of the respondent, ordering that the full amount paid for the sign should be refunded ($2,167.00) in addition to the filing fee of $125.40, for a total of $2,292.40. Grounds of appeal [9] The appellant says the Adjudicator found that they had “failed to complete their contractual obligations”. They say that that is not the case, but rather that the contractual obligations were only suspended. Application to Appeal Grounds of Appeal … 1 T 1-6 line 32 to T1-7 line 2. 2 T1 -7 lines 9-29. 3 As per the Competition and Consumer Act 2010 (Cth) sch 2. -- 2 of 4 -- 3 We argue that the contractual obligations are only suspended, and not by any fault of us, but that of Your Point International Pty Ltd (the Applicant ie. the original Applicant of the case) who, despite always being in the position to easily dissolve (sic) the matter, refused to do so. [10] Attached to the Application to Appeal is a document dated 30 July 2020 and headed ‘Estimate’ which describes the various items and cost associated with the production and installation of the proposed signage. Under the heading ‘IMPORTANT TERMS’ is a sub-heading ‘TURNAROUND’ which says: • Production time will be 3 working days for business card, 2-3 working weeks for menus and signage starting from the day that: A) all artwork(s) has been approved, and (B) any remaining balance is fully paid. • The above turnaround times are exempt from any unforeseen circumstances, such as force majeure events, or otherwise beyond the control of AC designs. • Product(s) only dispatched after final payment is received, or installation date only scheduled after final payment is received. [11] The appellant says that: “As the Applicant had refused to properly cooperate in our investigation of their complaint, we were unable to fulfill our responsibility of reaching a resolution/remedy. With no other options, we were forced to draw on the above terms of service which was clearly shown on the contract and agreed upon by the Applicant to temporarily suspend the job until the issue was resolved.” The complaint [12] The appellant says that the complaint was contained in an email from Ms Chen: “The email claimed that an earlier installation date had been promised by an employee from our company”. To this the appellant says: “This was not true as the contract clearly states the timeframe for the job”. In that regard they say the respondent’s assertion about the completion date “is not of concern to us”. Despite this they endeavoured to find a solution to complete the job earlier than forecast. [13] In different places the appellant refers to “the Applicant’s complaint”, “the Applicant’s assertion”, “the accusations”, and the “Applicant’s malicious actions”. The complaint, assertions and accusations would appear to all be in reference to conversations concerning the completion date, the subject of the appellant’s investigation. The “malicious actions” is something separate from “the complaint”. [14] In saying that the respondent’s assertion about the completion date (the ‘complaint’) was “not of concern to us” would seem to vitiate the appellant’s contention that resolution of the respondent’s complaint provided a basis upon which to suspend the contract. [15] In any case the appellant took steps to deal with the complaint by endeavouring to complete the job earlier than forecast. It would seem that nothing more could be done. The malicious actions [16] The “malicious actions” would appear to be a reference to the threat to disparage the business of the appellant through the ATCC. The appellant says: “The Applicant’s malicious actions are the only reason keeping the job suspended” (emphasis added). -- 3 of 4 -- 4 [17] It is not therefore the complaint, and the investigation of the complaint, that prevented the appellant from completing the contract as asserted, it was a concern that something might be said or that something might occur. The appellant’s concern was “that the Applicant had expressed their intent to spread word to the Australian Taiwanese Chamber of Commerce (ATCC) accusing us of lying by making false promises”. While seemingly an inappropriate use of the respondent’s position on the ATCC, this is not a basis upon which the contract could be suspended. It is not an event anticipated by the words “unforeseen circumstances, such as force majeure events, or otherwise beyond the control of AC designs”. [18] Force majeure events are in the nature of disasters (fire, storm, flood), or other extreme events such as a pandemic or war. The possibility that an adverse comment might be made to a business association, no matter how egregious, is not an unforeseen circumstance that would engage the exemption the appellant seeks to rely on to suspend the contract. Conclusion [19] Reputation in business is important. Businesses with strong positive reputations are perceived as providing more value and their customers are more loyal. Although its value is hard to assess, anything that damages an organisation’s reputation is a business risk. [20] The appellant in this matter is acutely aware of this. However, the goal of a contract is to fulfill the promises specified in the contract. The goal of the contract in this case was for the appellant to build and install signage at the respondent’s business premises. For reasons unrelated to the terms of the agreement the appellant did not fulfill the terms of the agreement. [21] I am unable to find any error of fact or law in the decision of the Adjudicator. [22] The application for leave to appeal and appeal is dismissed. Order Leave to appeal is refused and the appeal is dismissed. -- 4 of 4 --