Victorian Civil and Administrative Tribunal|2006-12-12

McLeod v Marina Operations Aust Pty Ltd (Civil Claims) [2006] VCAT 2537 (12 December 2006)

Victorian Civil and Administrative Tribunal Act 1998 - S.75 - Fair Trading Act 1999 - S.109 - jurisdiction - whether contractual relationship necessary - elements of consumer and trader dispute.

1. Application pursuant to Sections 75 and 77 of the Victorian Civil and Administrative Tribunal Act 1998 dismissed.

2. Question of any ancillary orders reserved.

3. Liberty to apply.

Mr Paul Bingham, of Counsel, instructed by Kliger Partners Lawyers

1 This matter comes before me by way of an application by the Respondent, Marina Operations (Aust) Pty Ltd ("Marina"). For the sake of simplicity, references to Marina shall include associated or subsidiary companies. In this application, nothing hinges upon the precise identity or names of such companies. Pursuant to s.75 and 77 of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act"), Marina is seeking to dismiss or strike out the proceeding brought by Ronald and Carol McLeod ("the McLeods"). That proceeding is in turn based upon an application pursuant to the provisions of the Fair Trading Act 1999 ("the FTA"). That application also contains references to the Domestic Building Contracts Act 1995, but it was made clear that reliance is placed by the McLeods solely upon the FTA. Whilst Marina claims reliance upon both s.75 and 77 of the Act, by far the bulk of the submissions made on its behalf concerned s.75.

2 Any findings of fact which I make in this ruling are so made solely for the purposes of this preliminary hearing. I make no findings as to the merits of the matter. Whilst affidavit material was presented, no oral evidence was adduced, so that the deponents of affidavits have not been tested in cross-examination.

3 The factual background of this dispute is one with which I have some familiarity. It concerns a mooring licence at what I shall describe as Patterson Lakes Marina ("Patterson Lakes"). There has been a history of considerable dispute between, on the one hand, property owners and the holders of marine licences, and, on the other, management of Patterson Lakes. I have previously given a lengthy decision concerning this - see Gainard v Cavendish Properties Pty Ltd [2006] VCAT 445. A considerable amount of evidence was taken during that hearing. Thus, I am familiar with such things as the general layout of Patterson Lakes, the arrangements that exist between licence holders and management, the types of moorings available and the like. I shall not repeat those matters in this ruling. They can be found under the heading "Factual Background" in the previous decision.

4 The particular dispute between the McLeods and Marina could be summarised as follows. In April, 2003, the McLeods signed a contract to purchase the property at 40 North Shore Drive, Patterson Lakes. They allege that, appurtenant to the property was a mooring licence, this being pursuant to an agreement dating back to 1997. The McLeods completed their purchase in June 2003. At settlement, they received from the vendors an assignment of the mooring licence, which they forwarded to Marina. Marina denies that it received it. The McLeods allege that they did not receive the renewal notice in respect of the mooring for the year commencing 1st July 2003. They claim that they wrote various letters to Marina but received no reply. In February, 2004, Mr McLeod spoke with Mr Adam Zuchowski ("Zuchowski"), a director of Marina at his office, and asked for the assignment of a licence in favour of the McLeods to be recorded. Initially, Zuchowski was prepared to adjust Marina's records and record the assignment of the mooring on the basis that the McLeods would make any payments that were required. Mr McLeod indicated their preparedness so to do. However, ultimately Zuchowski refused to do this. This refusal, according to the McLeods, occurred when he discovered that the McLeods were members of the action group which is in disputation with Marina. (At least some of this is disputed by Zuchowski). The McLeods have continued to use the mooring. They want the assignment to them recorded in case they decide to sell their property. They are members of an action group which is in dispute with Marina concerning increases in licence fees. I am familiar with this dispute, as the quantum of charges form part of the proceeding determined by me in Gainard.

5 Marina asserts that the McLeods are not and never have been the holders of a mooring licence, nor has any amount of maintenance fee been determined in respect of them. No notification was ever received from the McLeods concerning the canoe which they apparently berth at the mooring. The McLeods have never notified Marina of the existence of the appropriate insurance. Marina asserts that, had it been aware that the McLeods were using the mooring without having paid the licence fee, it would have prevented them from so doing. That the McLeods were berthing a canoe at the mooring does not seem to be a matter of dispute.

6 It is in relation to this background that affidavit material has been filed and submissions have been made.

7 Mr James Robinson, solicitor, appeared on behalf of the McLeods. Mr Paul Bingham of counsel appeared on behalf of Marina. Each made careful and helpful submissions. As previously stated, no oral evidence was adduced, the parties relying upon affidavits, exhibits, and written material. I should add that, whilst the amount in dispute in this application is less than $10,000.00, and it is thus a small claim within the meaning of the FTA, no problem arose as to the parties being represented by professional advocates and, given the general background of this matter, combined with the nature of the jurisdictional argument to be presented, it seemed to me appropriate that the parties be so represented.

8 It being Marina's application to dismiss or strike out the proceeding, Mr Bingham advanced his submissions prior to those of Mr Robinson, whilst later making further submissions in reply. I shall now summarise the cases as advanced on behalf of the parties in the order in which they were presented.

9 The submissions of Mr Bingham on behalf of Marina could be summarised as follows.

10 Marina's basic position is that VCAT lacks jurisdiction to deal with the proceeding brought by the McLeods because such proceeding does not fall within the operation of the FTA.

11 Uda and Stephanie Michels ("the Michels"), the vendors of the property purchased by the McLeods, had a limited right to assign the mooring licence to them at a particular time and in a particular way. Reference is made to the licence and in particular to clauses 3(b) and 2(n) contained in that licence. Reference is also made to the notice of assignment which is an addendum to the licence document. Clause 3(c) of the licence gives to Cavendish (and thus Marina) the right to repossess the mooring and the term granted by the licence shall absolutely determine in the event of a breach of the conditions of the licence, or if the maintenance fee is unpaid for 28 days after the due date for payment.

12 The application of the McLeods starts from the from the premise that they do not have a licence, and in essence they are saying that VCAT should grant them a licence. However, the Tribunal's jurisdiction commences when there is a licence. The basis of the McLeods' case is that this is a consumer/trader dispute within the meaning of the FTA.

13 The McLeods have never been the holders of a licence, nor has notice of any maintenance fee pursuant to the licence ever been served upon them. Accordingly, they have not paid any maintenance fee pursuant to any licence. It is also clear that the McLeods have been aware that Marina has asserted for some time that the licence in respect of the mooring had not been transferred to them and that no licence fees had been paid.

14 At some stage in 2004, the McLeods purchased a canoe and paddled it to the relevant mooring. In order to access and use a mooring, a gate card is required. The McLeods have previously asserted that they used the gate card which had been issued to the Michels. In fact, the computer records indicate that, save for three occasions on the one day, the gate card has not in fact been used. That isolated use was in 2002 and on a row of moorings different from that where the relevant mooring is located.

15 By the time the McLeods purchased the canoe and took it to the mooring, they knew that they had no licence and had not paid any maintenance fee. The use of the canoe was so as to obtain a toe hold for the purposes of the later application. Had Marina known that the mooring was being used without payment of the licence fee, that usage would have been halted. The contrived use of the mooring does not provide a basis for the application. It cannot give the Tribunal jurisdiction.

16 In relation to the assertion by Mr McLeod that Zuchowski was originally prepared to process the transfer of the licence but altered his stance once he became aware of the McLeods' involvement in the action group with which Marina was in dispute, this allegation is flatly denied by Zuchowski. It is also improbable because Zuchowski had previously sworn affidavits which referred to the fact that the McLeods did not possess a licence. In other words, he already knew that the McLeods were members of the action group prior to the meeting that is described in Mr Mc Leod's affidavit. It would not have come as any surprise to him. Furthermore, as is evident from the material, file notes taken by Zuchowski at the relevant time in February 2004 indicate not only that no transfer of the licence had ever been received, but that no statement or undertaking that there would be a transfer of the licence was made. There was never any agreement that the licence would be transferred. There is no basis for the assertion by Mr McLeod in his affidavit that such a transfer would take place.

17 The McLeods have never paid a licence fee. Even if the Michels paid the licence fee up until 30th June 2003, the licence fee has remained unpaid since then. It has never been tendered. Therefore, 28 days after 1st July 2003, Marina was entitled to go into possession. Indeed, given that the McLeods never had a gate key, Marina in fact had that possession. This can also be inferred from the fact that no further invoices were sent out to the McLeods, and no maintenance fee determined in respect of them. The suggestion that the McLeods were entitled to wait for a period in excess of 3 years and then bring this application is unmeritorious. The basis for delayed payment is asserted to be the ongoing Gainard proceeding, but that still continues. This current application was not made when the relevant rights were still alive. For the licence to be kept alive, there should at least have been a tender of the maintenance fee. By 1st August 2003 there was no licence extant. Certainly there is none extant today. Accordingly, no assignment is possible.

18 Further, no assignment has occurred, which leads to the situation that there is no contractual relationship between the McLeods and Marina. The McLeods are asserting that they are entitled to the relief sought on the basis that what exists is a consumer and trader dispute within the meaning of s.107 of the FTA. "Purchaser" is defined in the FTA as the person to whom the goods or services have been or are to be supplied. The words "are to be supplied" indicate that there exists an obligation to so supply. Similar wording - "are, or are to be" - appears in the definition of "services". The word "supplier" means the person who has supplied or is to supply the goods or services. Again, some obligation is connoted. A "consumer and trader dispute" not only requires the existence of a particular relationship between the parties, but it also requires the existence of a particular subject matter which forms the basis of the dispute. The subject matter of the dispute has to be one that relates to the supply of services. In the present case there is no dispute concerning the supply of services. It is not said, for example, that the supply of services has been badly done. There is no dispute about the services themselves. This dispute is about whether the McLeods should be granted a licence. It is anterior to the area of disputes that can be dealt with by the Tribunal. The word "possible" cannot have universal application in the sense that anything is possible. It is referring to a situation where a contract has been entered into but no supply has actually occurred. The type of dispute which falls within the operation of the FTA cannot be one where one party is attempting to force another into a contractual relationship. Further, ss.108 and 109 of the FTA appear to assume the existence of a contract.

19 Reference is also made to the decision of the Court of Appeal in Zeus and Ra Pty Ltd v Nicolau [2003] VSCA 11; [2003] 6 VR 606, which is predicated upon the existence of the relevant relationship of purchaser and supplier being in existence in the first place. To determine whether that relationship exists, one must first look at whether there is a contract in existence. Based on this decision, the other side of the coin is that if there is no contract, s.107 of the FTA does not apply.

20 The Tribunal does have jurisdiction to determine whether or not there is in existence a contract so as to found its jurisdiction to deal with the matter. The present application by the McLeods goes one step beyond that. It starts from the premise that there is no contract, and is an attempt to force a party into a contract. The McLeods are aware that the continuance of the licence between the Michels and Marina was conditional on payment of the maintenance fee, and that has not been done since at least July 2003. The McLeods may or may not have a remedy in the courts, and if they do, it would probably be vital that the Michels be parties. If the McLeods are relying upon an equitable assignment, for the action to be properly constituted the purported assignors (the Michels) must also be parties.

21 In summary, VCAT would be making new law and creating a new jurisdiction if it determined that one party could force another party to enter into a contract.

22 The submissions of Mr Robinson on behalf of the McLeods could be summarised as follows.

23 The McLeods are not asking VCAT to create a contract. There was in existence a contract between the Michels and Marina and that contract was validly assigned to the McLeods. However, for reasons that are not entirely clear, that assignment has never been recorded. It is on this basis that the McLeods seek a declaration that they have or are entitled to a mooring licence.

24 VCAT's powers should be interpreted broadly. Marina is the supplier of services, and was supplying those services to the Michels. This supply was then assigned to the McLeods, and, whilst the assignment was not recorded, the McLeods have in fact been using the mooring. It is clear from the affidavit of Mr McLeod that the proposition that Zuchowski, or Marina, did not know that the McLeods were using the mooring for their canoe is a proposition that is strongly challenged. The canoe has been openly located at the mooring. It can be inferred that the mooring has not been let to any other party. It is not alleged that Marina has in some way suffered a loss because, for 3½ years and believing the mooring licence to be cancelled, it has or has not let the mooring to another party.

25 The McLeods would like to have the assignment recorded and to pay the appropriate fees. In his affidavit, Mr McLeod has deposed that, in February 2004, the McLeods offered to Zuchowski, on behalf of Marina, to pay the required amounts. In the application issued out of VCAT, the McLeods have made it clear that they are ready, willing and able to pay all arrears of fees to date. The McLeods allege that they have been receiving the service - that is, using the mooring - and would like to pay for it and to have the assignment recorded. There has been no secrecy associated with the use of the mooring. In relation to any delay on the part of the McLeods in pursuing the matter, there was a reasonable amount of activity on their part between late 2003 and April 2004. After that, everyone appears to have sat back and awaited the outcome of the Gainard proceedings.

26 In relation to the argument that it is a prerequisite for the operation of the relevant sections of the FTA that there be a contractual relationship between the parties to the proceeding, that is not necessarily so. In any event, in the present case, there was a contract for the supply of services between Marina and the Michels, and that was assigned to the McLeods. Correspondence was sent by the McLeods, and their then solicitors, to Marina in December 2003 and April 2004 repeatedly seeking the transfer of the mooring licence and expressing a desire to pay the maintenance fee. Thus, notice was given so as to complete an equitable assignment.

27 Accordingly, VCAT has jurisdiction.

28 The reply of Mr Bingham on behalf of Marina could be summarised as follows.

29 In law, the licence can be only be assigned by compliance with its terms. The required form of assignment has to be given by the assignor at a time when the licence is extant. The Michels gave no notice. For the assignment to be effective, notice has to be given in two parts or halves. The second part has to be completed by Marina. The earliest occasion on which it could be said that the first half of the notice was given was in May 2004. Without the notice, there is no assignment in law. The material establishes that an invoice was sent for the financial year 2003/04, and that the maintenance fee remained unpaid as at the due date of 28th July 2003. At that date, the licence determined. It may be that the McLeods have the right to seek relief against forfeiture. They may seek such relief from a court, but the basis would be that there has been a forfeiture. That is the fact. The licence was forfeit on 28th July 2003. It may be that the McLeods could approach a court and persuade it to exercise its equitable jurisdiction in their favour. Relief against forfeiture may be granted, but the present situation is that, in law, there is no licence.

30 Equally, in law, there has been no assignment. Reference is made to s.134 of the Property Law Act 1958. Possibly the McLeods could persuade a court that there has been an assignment in equity, but until the McLeods could so persuade a court, there is, in law, no assignment.

31 It is clear from the material that the position of the parties is that, as at this date, there is no licence. That the licence had been cancelled and not transferred to the McLeods, and that they were aware of this, is evident, for example, from their solicitors' letter to the Michels of 29th March 2004, which letter is exhibited to the affidavit of Mr McLeod. At that time, they were threatening to sue the Michels in this regard. Other correspondence also makes it clear that the McLeods were aware in 2004 that there had been no transfer of the mooring licence and that the maintenance fee had not been paid. It may be that, at some future date, what has not occurred in law (the assignment) may occur in equity, but that is not presently the case. VCAT cannot grant relief against forfeiture. Nor can VCAT transmute an equitable assignment of a chose in action to a legal assignment. Until that occurs, there is no licence.

32 The key issue to be determined is that of jurisdiction. On a previous occasion I have expressed the view that, if this Tribunal lacks jurisdiction to deal with a matter, it also lacks jurisdiction to refer that matter elsewhere pursuant to s.77(3) of the Act - see Wurzel v Ryan and Raniga [2003] VCAT 469. I continue to hold the views there expressed. I appreciate that, in the present case, only a little attention was directed towards s.77 of the Act, and that was in the context of Mr Bingham's argument that, VCAT possessing no jurisdiction to determine the matter, it should be either dismissed or transferred elsewhere. However, I remain of the view that, if VCAT lacks jurisdiction, as urged by Mr Bingham, there is then no power to so transfer the matter elsewhere.

33 It is also to be borne in mind that Marina's application pursuant to s.75 is one which is concentrated on misconception as to jurisdiction rather than on other factors referred to in that section, such as a proceeding being frivolous, vexatious or lacking in substance. Accordingly, many of the matters to be considered as set out in Norman v Australian Red Cross Society (1998) 14 VAR 243, and which relate to the merits of the dispute, are not applicable. Whilst I may have some observations to make concerning the apparent or prima facie merits, it is the question of jurisdiction which lies at the heart of the present application.

34 As has been stated many times, VCAT is a creature of statute, and its jurisdiction is to be found in the Act and in the enabling enactments. It possesses no jurisdiction beyond that which is to be found in those statutes. It possesses no equitable jurisdiction.

35 The enabling enactment to be considered in the present case is the FTA. If the dispute between the McLeods and Marina does not fall within the operation of the FTA, it is not suggested that VCAT otherwise possesses the jurisdiction to deal with it. Similarly, it has not been suggested that, if the dispute does fall within the ambit of the FTA, it falls anywhere other than within s.107 and the following sections. In other words, this application has been argued on the basis that, if the dispute is not a consumer and trader dispute, it does not fall within the operation of the FTA, and accordingly VCAT has no jurisdiction to deal with it.

36 One of the submissions made by Mr Bingham is, in essence, that the existence of a contractual relationship between the parties is a prerequisite to the bringing of an application pursuant to s.107. I do not agree that this proposition represents a universal truth. As I stated recently in Wizardry Kennels v Hamilton & Anor (delivered 24th November 2006):-

"Whilst the relevant provisions of the FTA do not specifically require the existence of a contract, the nature of consumer and trader disputes may be such that a contract frequently, if not almost invariably, lies at the heart of the dispute. However, it is not spelt out as a statutory prerequisite. What is required pursuant to s.107 of the FTA is a dispute arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services."

37 That remains my view. Whilst many consumer and trader disputes will involve a contract, arguably some may not. Disputes based on quantum meruit, where there is no binding contract, may provide an example of this. The type of dispute which arose in Brenner v First Artists' Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221 is one which may have fallen within the definition of a consumer and trader dispute. However, if the existence of a contract were a prerequisite, it would have been comparatively simple for the legislature to spell this out. It has chosen not to do so. Whilst, as pointed out by Mr Bingham, there are many references to the existence of a contract in ss.108 and 109, the fact remains that the word "contract" does not appear in s.107 in the definition of a consumer and trader dispute, or at all. The legislature has not seen fit to make the existence of a contract a condition precedent to the existence of a consumer and trader dispute. In my opinion, s.107 permits a consumer and trader dispute to exist in the absence of a contractual relationship between the parties. In this regard, the decision in Zeus & Ra does not provide to Mr Bingham the support which he has sought to draw from it. In that case, with which I have some familiarity, the Court of Appeal was dealing with, inter alia, the question of whether the definition of "fair trading dispute" as then contained in the FTA embrace a contract for supply of services which had been completed or terminated. The Court of Appeal ruled that there is nothing in the definition which would exclude from VCAT's jurisdiction under the FTA a dispute arising between a purchaser and supplier under an executed contract. The Court of Appeal was dealing with a situation where a contract clearly existed. The existence of a 4 year lease between the parties lay at the heart of the dispute. The Court of Appeal was not required to examine whether the existence of a contract was a pre-requisite to there being a fair trading dispute (or a consumer and trader dispute). There was no argument but that there was, or had been, a contract between the parties to the proceeding. There is nothing in that decision which overcomes the basic proposition that the legislature has not seen fit to insert in s.107 the requirement that a contract exist. Thus, the real question is not whether a contract exists, but whether a consumer and trader dispute exists. Whilst I consider that the present dispute could be described as borderline in that context, in my opinion a consumer and trader dispute does exist. I am not convinced by Mr Bingham's argument that the word "possible", wherever it relevantly occurs, has the narrow interpretation for which he argues. The McLeods are seeking a declaration that they are entitled to a mooring licence. What they are, in essence, seeking is a declaration that they are entitled to the provision of a service. That service is the registration or recording of the assignment of the mooring licence, and they are prepared to pay the appropriate fees and arrears of fees in that regard. Thus, as I see it, the services in dispute are not those that might relate to the actual mooring of the vessel and the circumstances surrounding it. The services sought by the McLeods of Marina relate to the acknowledgement or registration of the mooring licence as being appurtenant to their property, or the ownership thereof.

38 A supplier is defined as a person who has supplied or is to supply goods or services. "Services" is defined as including any rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce. That definition is of sufficient breadth to include what is sought by the McLeods. They claim that they have a right to have their "ownership" of a mooring licence recorded and acknowledged. Marina is the person which can supply the service, namely the recording and acknowledgement of the assignment of the licence. Thus, Marina seems to me to be a supplier of services for the purposes of s.107(1) of the Act. The McLeods allege that Marina was asked to supply this service. They allege that Marina, through Zuchowski, originally agreed, but later reneged. It seems to me that this makes Marina a possible supplier of services. To reject Mr Bingham's narrow interpretation is not to say that the word "possible" in s.107 and the various definitions means that members of the population at large could be described as suppliers. In the present instance, the McLeods have asked Marina to supply a particular service to which they claim to be entitled. Whether or not a contractual arrangement was entered into, they claim that Marina, at least temporarily, agreed so to do. A dispute has now arisen concerning this. The McLeods are not selecting a member of the population at large and nominating such a person as a potential supplier. They are nominating a particular person, which logically could be the supplier of the service in question, and are claiming that a dispute has arisen in relation to the provision by that person, as supplier, of a service within the meaning of the Act, to them as purchasers, being the persons to whom the services are to be supplied. To say that words such as "are to be supplied" connote a contractual obligation is a step which I am not prepared to take, particularly bearing in mind the use of the word "possible" in s.107 of the FTA. In summary, it seems to me that the elements of a consumer and trader dispute have been made out, however narrow might be the margin in favour of determining same.

39 Even if the existence of a contractual relationship is required, viewed one way such a relationship might exist. Mr McLeod, in his affidavit, is deposing that Marina was prepared to adjust its records and acknowledge the assignment provided that the appropriate payments were made. The McLeods, via Mr McLeod, accepted this and stated they were prepared to make the payments. I appreciate that there may be a considerable contest concerning this, but, if the evidence of the McLeods should be accepted and should prevail, the ingredients of a contract have arguably been established. There has been an offer - a preparedness to adjust the records if the appropriate payments are made. There has been acceptance. There has been consideration - a promise or statement of preparedness to make the payments. If that be so, arguably a contract to supply the service of acknowledgement of the assignment came into existence, and so came well after the date when Marina was entitled to treat the licence as having expired due to non-payment of fees. A dispute has since arisen concerning this. If the situation be viewed that way, the existence of a consumer and trader dispute seems even clearer.

40 In summary, I am of the view that a consumer and trader dispute has been established; that the requirements of s.107 of the FTA have been satisfied; that the proceeding thus falls within the operation of the FTA; and, accordingly, VCAT has jurisdiction to hear and determine the dispute.

41 As stated, it would not be appropriate at this stage to make any ruling in relation to the merits of the matter. However, it might be useful to say that, even if a view of the facts most favourable to the McLeods is taken, various obstacles still lie in their path if they are to obtain the relief which they seek. All that I am determining is that a dispute of the appropriate type exists so as to give to this Tribunal jurisdiction to hear it. I would not like it to be thought that this ruling should be seen as some sort of encouragement to the McLeods. Whilst various pieces of evidence are yet to be heard and tested, and whilst many arguments are yet to be heard, some of the arguments advanced by Mr Bingham seem to me to have considerable weight. That remark is not made in terrorem. Rather, it is intended to be seen as a reminder that my ruling is solely in relation to jurisdiction and not in relation to the merits or the prospects of success.

42 Accordingly, I rule that this Tribunal possesses the jurisdiction to hear and determine this proceeding. I am not of the view that, pursuant to s.77 of the Act, the matter should be struck out on the basis that it would be more appropriately dealt with by another Tribunal or Court. No argument has been advanced which would so persuade me, and I can see no reason for so determining.

43 Accordingly, Marina's application is dismissed. I shall reserve the question of any ancillary orders that are required and I shall reserve liberty to apply.

McLeod v Marina Operations Aust Pty Ltd

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

McLeod v Marina Operations Aust Pty Ltd (Civil Claims) [2006] VCAT 2537 (12 December 2006)

Parties