AGPR Pty Ltd v SBM Management Services Pty Ltd [2013] QCAT 357

CITATION: AGPR Pty Ltd v SBM Management Services Pty Ltd [2013] QCAT 357 PARTIES: AGPR Pty Ltd (Applicant) v SBM Management Services Pty Ltd (Respondent) APPLICATION NUMBER: MCDO02387/12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 18 June 2013 HEARD AT: Brisbane DECISION OF: Paul Favell, Member DELIVERED ON: 16 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent pay to the applicant $8,001.95 CATCHWORDS: Whether contract for the supply of employee- whether contact performed-whether money owed APPEARANCES and REPRESENTATION (if any): APPLICANT: Roslyn Melrose, director of the applicant. RESPONDENT: Betty Beiraghi REASONS FOR DECISION [1] The applicant seeks an order that $7,800.00 be paid to it, together with the filing fee of $98.00 and service provider fee for electronic filing of $88.00 and a business name or company search fee of $15.95. It also seeks interest which it calculates at 10 per cent for 245 days at $523.56. [2] The basis of the application is that the applicant acts as an employment agent for the provision of medical staff. It entered into a written agreement on its standard terms and conditions for the provision of medical staff. -- 1 of 5 -- 2 [3] On or about November 2011 the respondent requested that a new doctor be provided for their practice. [4] The applicant says that they provided the doctor and having met their obligations in full under the agreement are owed the relevant fee of $7,800.00. [5] The applicant says the doctor was placed on or about 3 January 2012 at which time the relevant fee was payable and that the doctor provided is still employed with the respondent. [6] The respondent disputes the claim and says that there was no signed agreement. It says that it was emailed a standard agreement by the applicant on 25 July 2011 but the agreement did not specify the name of the party with whom the applicant was trying to contract with. It says that it did not complete the unsigned agreement and that the unsigned agreement specified that the applicant had been engaged to carry out recruitment services but did not define the term and the unsigned agreement provides little indication as to what recruitment services included. [7] It draws a conclusion that the agreement with respect to the placement of Doctor Nasim Romina was formed verbally through the applicant’s website terms and based on past agreements and conduct between the applicant and the respondent. [8] It appears that there were past agreements between the parties. The respondent says that there was a business relationship between the applicant and the respondent which began in 2007 when the respondent recruited a doctor from Iran. The fee charged was $8,500.00 GST included and various services were provided. In 2011 the respondent says the applicant provided services to place another doctor who did not accept a position with the respondent and the parties worked together to ensure the doctor was able to be placed. The respondent contends that from the past dealings where various candidates’ CVs were rejected the respondent believed the applicant would have a good understanding of the respondent’s needs and requirements in placing candidates. It says that it reasonably expected that those terms and level of service were incorporated in future dealings with the applicant. [9] The respondent refers to the website of the applicant which it says outlines the recruitment service of the applicant. [10] The respondent says it must be clear to the applicant through experience from past agreements and from telephone conversations that they required an experienced, capable and self-sufficient doctor. [11] The respondent says that the nature of the agreement between it and the applicant was as follows: -- 2 of 5 -- 3 1. The applicant was contracted on the basis that they would provide a doctor suitable for the respondent’s needs. Namely, an experienced and self-sufficient doctor. 2. The respondent had a reasonable expectation that the recruitment service would involve the services that had been performed under past agreements as well as the services advertised on the website and the applicant would use its best or at least reasonable endeavours to ensure that the doctor was suitable for the respondent’s needs. 3. The applicant did not indicate that the service would be performed to a lesser extent than to what was usually expected. [12] The respondent contends that the applicant performed very little with respect to the recruitment process and it has advised the Tribunal of various beliefs that it holds in respect of what the respondent did. [13] The respondent says that the doctor in question was recommended to the respondent despite the fact that the applicant: a) Initially rejected the doctor’s recruitment application on the basis that she lacked experience and would not be a suitable candidate to place in Queensland; and b) Believed that the doctor would be unable to obtain registration within the Medical Board of Queensland. [14] Specifically, the respondent said the applicant did not perform its obligations under the contract as: a) It was the respondent’s expectation that all facets of their recruitment service would be formed; b) The applicant did not provide all the services which are usually indicated in the recruitment service; c) The applicant failed in providing a suitable candidate or engaging and communicating basic background checks; [15] They say that the payment of the $11,000.00 fee is not warranted. The respondent contends that the recruitment fee charged by the applicant was $11,000.00 including GST and the respondent has paid $5,400.00. Therefore the fee in dispute is $5,600.00 including GST. [16] The respondent makes complaints about the doctor’s performance and makes reference to various sections under the Competition and Consumer Act 2010. In particular, it makes reference to those sections dealing with misleading and deceptive conduct and guarantees as to fitness for a particular purpose. [17] In summary, the respondent says that the applicant’s claim should be dismissed because: a) The respondent has already paid the applicant for the limited services provided; b) The applicant did not provide all the services contracted; -- 3 of 5 -- 4 c) The applicant ought to have known the lack of experience of the candidate but still recommended the candidate for the position and that constitutes misleading and deceptive conduct, meaning that the contract was voidable and the applicant would be liable for any loss suffered by the respondent as a result. d) The applicant’s recruitment service was not fit for its required purpose, entitling the respondent to rescind the contract and be compensated for the reduction in value of the service. [18] The applicant says that the relationship with the respondent started in 2007. At that time they assisted with the recruitment of an overseas- trained doctor. In reply to what is said by the respondent, the applicant says that their terms and fees are for recruitment services, not for a particular candidate. They say a doctor was placed and the practice has continued to employ her. The applicant says that the fees are not based or priced according to what services are given to obtain a doctor. In essence, they say that they have done what they were engaged to do and that was to provide a doctor who has continued to be employed by the respondent. [19] The applicant says a recruitment fee of a permanent General Practitioner is $12,000.00 plus GST, totalling $13,200.00. They say that the respondent was repeatedly sent the current agreement and were clearly made aware of the cost, which was acknowledged and accepted. They negotiated a $1,000.00 discount whereupon the recruitment fee became $11,000.00 plus GST, namely, $12,100.00. They say they issued an invoice for $3,000.00 plus GST reflecting the deduction they had made of $1,000.00 for previous work that they undertook for the practice, and that then there should have been two more invoices each issued for $4,000.00 plus GST. [20] The respondent has paid $3,300.00 on 3 February 2012, $500.00 on 26 April 2012 and $500.00 on 17 July 2012, an amount of $4,300.00 inclusive of GST. [21] The applicant says, deducting the amounts paid from $12,100.00, the total amount outstanding is $7,800.00 inclusive of GST. [22] They are also claiming a filing fee of $98.00, $15.95 business company search fee and $523.56 for interest. The total that they claim is $8,437.51. [23] I have been provided with what is called by the applicant a standard agreement. The agreement was dated 19 April 2007 and it was between the applicant and Loganholme Family Medical Practice. In the agreement the applicant is engaged to carry out recruitment services. The fees are in consideration of the applicant performing its obligations under the agreement and the fees are set out in accordance with Schedule 2 which is incorporated into the agreement. Schedule 2 in the agreement provides that, for permanent placements, instalments are to be made in three payments. The first payment is non-refundable and payable within 14 days from the date the candidate commenced work. The second and third instalments are payable at the end of the month that the candidate works. That standard agreement was sent to the respondent as an -- 4 of 5 -- 5 attachment to an email. Relevantly, the charges for General Practitioners conditionally registered on a permanent placement of 12 months or more is $4,000.00 multiplied by three. [24] The standard agreement that was sent with the email was between the applicant and the portion that in the agreement for the respondent that was left blank. Whilst it is true that there is no agreement signed by the respondent there is nevertheless, in my view, sufficient to amount to acceptance of the terms and conditions of the placement. [25] In my view, the respondent has accepted the terms and conditions of the placement of a doctor in the practice of the respondent. The $7,800.00 together with the filing fee of $98.00, the service provider fee of $88.00 and the business company search fee of $15.95 is allowed. [26] I do not order that interest be paid, there being no provision for it in the contract. Accordingly the order is that the respondent pay to the applicant $8,001.95 forthwith. -- 5 of 5 --