TheSilverTree.com.au Pty Ltd v Bond Cleans Sunshine Coast [2025] QCAT 437

[2] Silver Tree and Belinda signed a written agreement. The agreement, among other things, referenced a key customer, Halcol Energy ('Halcol').

[3] The parties decided that they needed to amend their agreement. The key customer, Halcol, met with the respondent. The day after the meeting, Maverick,[1] and Belinda, the owner of Halcol, contacted the applicant to say he would not deal with Maverick and Belinda and would instead do business elsewhere. The applicant quickly called Belinda and Maverick to discuss the issue.

[4] The applicant, Belinda, and Maverick met at a house belonging to one of Belinda's customers so that the applicant could provide training on how to use the window cleaning equipment. During this meeting, it was agreed that the sale price of the business would be lowered to account for the decrease in revenue resulting from Halcol's decision not to continue the business relationship with Belinda.

[5] Silver Tree stated that the newly agreed price for the business was $21,000 plus $1,000 per week for 26 weeks, totalling $47,000 for the business, equipment, and vehicle. Several issues were raised but are not relevant to the dispute. This 'agreement' was heavily contested by the respondent.

[7] Some money was paid by Belinda to Silver Tree. The reason for these payments is disputed. The agreed repayments eventually ceased.

[8] The applicant consistently followed up with Belinda about payments. He mentioned that communication was very limited; in fact, he said Belinda was not proactive in making contact.

[9] There was an agreement to amend a description in the invoices. I don't think this is very significant because the description on the invoices seems to have been made to facilitate some arrangements between the parties related to taxation.

[10] The respondent, Belinda, prepared a response with the assistance of her partner, Maverick. Maverick seems to have had some influence on how the proceedings and the dispute were conducted. It is useful to refer to the documents that the applicant relies on. It is convenient to do this because, of the two parties, the applicant was more prepared for the hearing and better organised.

[11] The applicant and Belinda signed a business purchase agreement dated 11 June 2024.

[12] It appears that Maverick prepared the agreement. If a legal practitioner was involved, it was not obvious. While the agreement seems to have had some legal knowledge applied to its preparation, it had some deficiencies.

[13] The purchase price included a description of the business assets being sold under the agreement, with settlement scheduled for 13 June 2024. The contract's definitions somewhat confusingly specify that settlement means the completion of the purchase and sale of the assets as outlined in the agreement, including the payment of the agreed consideration and the transfer of title to the assets. The contract also states that the purchase price is to be paid in a single lump sum - see condition 7.

[14] Condition 9 included a series of representations and warranties made by the seller to the purchaser, including that the seller owns or is licenced to use all necessary software and can continue to use any and all computerised records, files, and programs after the settlement date in the same manner as before the settlement date.

[15] In paragraph 10, the contract states that the representations and warranties provided in this agreement are the only ones that can be relied upon. No other representations or warranties, whether expressed or implied, have been given by the seller to the purchaser, including but not limited to any representations or warranties about the merchantability of the assets or their suitability for a specific purpose.

[16] In paragraph 11, somewhat inconsistently, the seller warrants to the purchaser that each of the representations and warranties made by it is accurate and not misleading as of the settlement date. The seller acknowledges that the purchaser is entering into this agreement relying on each representation and warranty.

[17] I questioned the respondent about their response. Neither the respondent nor her partner Maverick was able to specify which representations or warranties in this contract were misrepresented or, as described in clause 11, were inaccurate or misleading. Regarding clause 13, the contract states that if the purchaser has a claim against the seller relating to any of the representations made by the seller, the seller will have no liability unless the purchaser provides written notice to the seller with full details of the claim on or before the six-month anniversary of the settlement date.

[18] Belinda's first communication about any issues with the agreement or understanding between the parties did not occur until October 2024. The notification, which must be in writing, is required to be made within six months of the anniversary of the settlement date.

[19] The contract also includes several conditions known as conditions precedent that the seller must fulfil. Included among these are the following conditions precedent:

The obligation of the purchaser to complete the purchase under this agreement is subject to the satisfaction of the following conditions precedent by the seller on or before the settlement date, which may be waived by the purchaser either entirely or in part, including:**

a) All of the representations made by the seller will be true and accurate in all material respects on the settlement date.

b) The seller will obtain and complete any and all forms, documents, consents, approvals, registrations, declarations, orders, and authorisations from any person, etc.

f) The seller will provide the purchaser with complete information concerning the operation of the seller in order to put the purchaser in a position to carry on in the place of the seller.

g) This will continue the use of the names Wave Windows and Solar, except in connection with the collection of the accounts receivable of the seller.

1. This agreement is contingent upon the seller demonstrating the validity of the client database and the ongoing relationship with Halcol, a solar company.

j) This agreement is contingent upon the seller transferring the Google calendar and client database, and this agreement is contingent upon the seller training the buyer in all aspects of the intellectual property of the business.

**[20] Under the heading 'condition precedent not satisfied', the contract states that if either party fails to meet any of the conditions precedent outlined in this agreement on or before the settlement date, and that condition was not waived, the agreement will be declared null and void, and no further liability exists between the parties.

[21] During the hearing, I pointed out that clause to the buyer, particularly to Maverick.[2] There was no waiver of any condition. The buyer did not notify the seller before the settlement date that it had failed to satisfy its condition precedent as set out in this agreement. On the contrary, certain steps were taken, some things were transferred, and monies were paid.

[22] The agreement states that it contains all terms and conditions agreed upon by the parties. It includes a clause stating that any statements or representations made by either party during negotiations may be inconsistent with this final written agreement. All such statements are deemed to have no value to either party; only the written terms of this agreement will bind the parties.

This agreement may only be modified or amended by written instrument executed by all of the parties (clause 53) and a waiver by one party of any right or benefit provided in this agreement does infer or permit a further waiver of that right or benefit nor does it infer or permit a waiver of any other right or benefit provided in this agreement (clause 54).

[24] The document was signed electronically on 11 June 2024.

[25] As the applicant states in his tribunal application, there were some additional issues.

[26] He mentions a problem with financing the purchase of a vehicle. This was, for some reason, entered into independently of the original agreement.

[27] It is clear from the conditions in the executed agreement between the parties that any variations to that agreement required a separate agreement to be executed (clause 53).

[29] On 30 July 2024, John asked Belinda to have Maverick amend the agreement. On 2 August, Belinda said that Maverick would amend it 'next week for us.' In the email Belinda responds to, he says, 'I have just noticed that the most recent sale agreement we have for the business details $26,000 upfront and then $1,000 per week. I believe we ended up agreeing to $21,000 and then $1,000 per week for 26 weeks.'

[30] On 5 July 2024, the applicant sent an SMS message to Belinda regarding the invoicing issue previously discussed. Specifically, he inquired whether he should issue the invoice as partial payment for the business name purchased, at $26,000 per week, with the outstanding amount reduced by $1,000. I believe this would then be GST exempt.

[31] He followed up with that message on 7 July. Without any other comments or observations, Belinda replied:

Hi John, the agreement after the Halcol issue was buying the assets of the business and database as a going concern, not consultation [the going concern obviously referring to the GST concession]. Please issue invoices for the assets of the business and the database at $1,000 per week.

[32] On pages 166-8[3] inclusive, there is a series of messages that have transpired between the parties. Notably:

Hi Belinda, I hope everything is going okay. Just wanted to make sure everything is okay with the weekly payments.

Hi John, that's great to hear. All going well here I've just realised I've missed last week's payment and will pay tonight.

[34] I note that at that point, Belinda made no mention of any issues with the agreement, its terms, or any failure to comply with what was agreed upon by the seller.

[35] Some messages were exchanged regarding the transfer of control and access to the Facebook page, and subsequently, in a material sense:

22 August: 'Hi Belinda, just reconciling my accounts and it looks like you are a couple of payments behind so do you need me to send invoices? Warm regards, John.'

23 August: 'Also, did Maverick get the chance to amend the agreement?'

'I may have sent the emails to an incorrect email address, do you need to resend from correct address?' The response from Belinda was 'Hi John, yes please can you resend.'

14 September: 'Hey Belinda, just tried to call discussing the outstanding invoices.'

15 September: 'Hi John, I'm not ignoring you, I will respond to your email tonight. I'm trying to get Waves Windows to stand on its own two feet and will resume payments when I can generate revenue from the Waves Windows database.'

15 September: 'Hey Belinda, I look forward to getting the email.'

9 October: 'Hey Belinda, are you available for a call?'

16 October: 'Hey Belinda I read your email and we need to discuss this problem of unpaid invoices. It is going to work much better by talking the problem over, when can we call?'

[36] In a document numbered 74 in the bundle relied on during the hearing, there is a statement of business activity regarding invoices delivered by the applicant to the respondents. It is clear from the statement that the payments made by the respondent are irregular. In a letter sent to the applicant by the respondent, Belinda stated that there had been a good run until the start of August. A series of concerns were noted, including no inbound calls at all, a decline in the initial handover list, the Google calendar mostly not open for rebooking yet, no work from home or at all, older clients being very resistant to change, and advice was requested about what to do when the schedule was empty. The prompt response from Silver Tree on 26 August provided an explanation for what was described as a quieter period in the past. Then suggestions were made, and a request was made for payment of the outstanding invoices.

[37] Belinda sent further emails on 17 September. The email repeats issues raised in earlier correspondence and added that 'your regular clients have not rebooked.' It also refers to Trina, who was discussed at the hearing. They mentioned they believed 'from your advice that a $1,000 day was typical and expected. It happened once since taking over.' In this respect, if that representation was made, the signed agreement addresses it.

Is there any database at all? As this was what we understood we were paying for where the actual value of the business lies. It's extremely difficult and time-consuming to extract information from the information we have. We are trying to manually pull them into some sort of practical CRN. It's incredibly time-consuming. You mentioned rebooking clients at time of the clean. Great idea and we're doing this. Are there any of yours from the last 12 months booked in that we can have access to? We have been unable to find any. Social media is also a great idea. I am consistent on my own platforms and community pages. I am unable to have full access to the Waves Windows page to clean it up. The last business post I can find was over a year before we purchased the business. Is there something I can't see? I do intent continuing to keep paying but the business has to pay its own bills.

[39] Once again, the aim was to keep paying the bills, but an implied term arose that any payment under the agreement depended on the business having enough income to cover it. While this might be a reasonable expectation when buying a business, it was not part of their agreement. If it was to be a term, it should have been considered before any sale was completed. It wasn't.[4]

[40] Silver Tree then sent another email on 10 September highlighting that $5,000 was outstanding.

[42] He said he agreed to the respondent's terms of payment when he handed over his business in good heart, 'trusting that you would keep up to date with the planned payment structure.' He said that:

One of the major factors in keeping the business successful as it was when I left is keeping up with the customer by phone, email, and online. Wave Windows thrives on customer care and talking to people about the business. I have not seen any posts on the Wave Windows Facebook page. It is imperative as discussed before I left that the customers feel cared for and updated. That you book them in for the next clean while they're at the property and you keep all the social up to date.

[43] In line with his email dated 17 September, he acknowledged Belinda's frustration. He explained that he used to spend half a day every Monday on admin, invoicing, calling customers, and being proactive.

[44] The applicant said that occasionally it did get quiet, at which point he would post on Facebook and email over 200 customers from the list he had previously provided to Belinda. He acknowledged that he had not made a Facebook post, but during the same 12-month period, he emailed every customer and rebooked clients from the Google calendar while also seeking referrals. He stated that based on that activity, the phone kept ringing.

[45] He clearly provided a very detailed response about activities that can generate business, offered assistance to help maintain momentum, and confirmed that the database was exactly what he had sent to Belinda - a full list of customers, names, contact details, and Google Calendar spreadsheets from Xero for every invoice over two years.

[46] During the hearing, he also told me that he provided Belinda and Maverick with any documents they requested, including profit and loss statements. He offered to assist them with issues related to some customers and confirmed that he agreed to reduce the price of the business due to the Halcol issue and their request to finance the purchase of the business and equipment. He noted that they had paid $26,000 so far, which did not cover the cost of the business, equipment, and vehicle. The value of the vehicle and equipment is $33,000, leaving a shortfall of $7,000. He requested that the $7,000 balance be paid and offered to work with them to help rebuild momentum and revenue.

[47] On 25 September, the applicant acknowledged the recent $1,000 payment, upheld his offer of assistance, and asked for advice on when the remaining balance would be payable. A follow-up letter was sent on 3 October, and a final letter of demand was issued on 10 October. In the email of 10 October to the applicant, the respondent insisted that the $21,000 payment for the vehicle had been made in full. She also maintained that the equipment provided under the agreement has been fully paid for. There was no attempt to assert this agreement at any prior time.

[48] Belinda then asserts that the database, client list, goodwill, and intellectual property were in such poor condition that she believed the business was not in the state represented by the applicant at the time of sale. The goodwill, client relationships, and operational systems needed to generate the income he described have either been non-existent or significantly reduced. The current value of the business does not justify the ongoing invoicing of the outstanding $10,000 claim. The offer in that letter was to make a goodwill payment, as the amounts paid so far, totalling $27,000, are more than fair given the circumstances. The letter mentions the Halcol relationship and claims that this was crucial to the decision to purchase the business. I cannot accept that assertion at all. The respondent was clearly aware that Halcol did not want to continue with Belinda and/or Maverick. There can be no doubt at that time that, regarding the letter and for the hearing, the Halcol decision was not a material factor and should not have been part of their negotiating strategy after deciding not to make further payments to the applicant.

[49] There is then a reference to Home Instead. In the letter, it is stated that Home Instead had since confirmed that no such relationship would continue under new ownership. At the hearing and in the communications, it is clear that John had a troubling but good relationship with Home Instead. Home Instead was not mentioned in the signed agreement. Any decision the respondent made regarding purchasing the business was not solely based on what was discussed during negotiations, and I note again that the contract explicitly states the impact of those negotiations in clause 54. Additionally, they had a complete list of the invoices issued to that company prior to the sale. If that company's business was so vital, it should have been clearly outlined in any agreement, written or otherwise.

[50] It appears that the client list and database were part of a simplified customer relationship system that the applicant successfully developed while conducting the business. The respondent has not explained how the list provided was incomplete or inaccurate at any time. They have also not clarified how the database failed to qualify as a functioning system. From the emails and letters written by the applicant at the time, it is clear that the records provided prior to the sale indicated the system was operational and suitable for the business's needs. Furthermore, the contract prepared by Maverick regarding the purchase, which was signed by both parties, explicitly stated that it was the buyer's responsibility to verify the precontractual conditions. The buyer could have delayed settlement because the contract was conditional upon those conditions being met. Importantly, there was no concealment of the systems used to generate business. In fact, the handover documents provided at the time (found on pages 109-52 in the court file), did provide a significant amount of information including passwords.

[51] It seems to me that the buyer tried to take advantage of the applicant's situation. I mean this without any disrespect. They knew he wanted to sell the business and was going overseas. They were trying to make his travels easier in a way because they would have taken, as Maverick explained during the hearing, responsibility for the vehicle. In a message sent on or before 30 June, John says:

Hi Belinda, I sent through two spreadsheets to the bond cleans' email address with everything I have charged customers over the last two years and the second is a full contacts list - about 200 customers you can cross-reference between the two sheets to see what a customer has been charged. The other location is on the Google calendar - search for the customer name and their name, address, email should be on the calendar entry.

[52] There is also a reference to cash drops. The applicant did complete a comprehensive response when he was asked to provide information. There was no argument about what Belinda was receiving. He provided Belinda with a full list of all existing customers, including contact details and addresses. He also provided Belinda with a list of customers who needed urgent window cleaning, covering roughly one to two months of work. Additionally, he supplied Belinda with end-of-year accounts from a two-year period, detailing all revenue.

[53] He provided additional spreadsheets detailing each invoice sent to every customer over two years. He also handed over a Facebook page website and full access to the Waves Window email account and calendar, including all historical emails. Furthermore, he explained what could be done to improve phone calls and other customer engagement activities, such as via Facebook. There seemed to be increasing dissatisfaction with John's description of events and the efforts made by Belinda to manage the business. He contacted several customers who shared their own insights and observations.

[54] During the hearing, I was asked about options for accessing this database. I honestly said that it did not particularly concern me when it came to the decision I needed to make, as no counterclaim had been filed by the respondent and it was their choice. Belinda showed some frustration during the hearing, saying she didn't have a say in that. It was quite clear from how things had been going before and during the hearing that, although she was named in the paperwork related to the agreement, she was actively involved with her partner Maverick in buying the business, negotiating the purchase price, and preparing the relevant documents. It appears she had plenty of influence - so much so that Maverick told me several times during the hearing on different occasions that the decision not to go ahead was a matter of choice based on the mistaken belief that there was no binding contract.

[55] I explained during the hearing that my powers to resolve their dispute were limited. The Fair Trading Act 1989 (Qld) outlines the consumer laws relevant to these types of claims that can be handled in QCAT.

[56] There was simply no evidence provided to support any claims that the applicant misrepresented the business assets or materially misrepresented the relationship he had with customers.

[57] This dispute revolves around the principle historically called caveat emptor. Let the buyer beware.

[58] The contract that Maverick had prepared, or did prepare, or utilised, provided adequate protection for an informed purchase. It allowed the purchaser to make inquiries regarding important matters. For example, the Halcol business was significant. When it became clear that Halcol did not wish to proceed with the purchase, the applicant immediately notified Belinda and Maverick. As a result, the parties reached a new oral agreement concerning the purchase of the business.

[59] Maverick appeared to believe that no contract existed. However, there was a signed contract. The legal impact of the situation regarding that contract is unclear. From the respondent's response, it is evident they rely on the respondent to establish a series of allegations that misleading and deceptive conduct occurred. In this sense, they acknowledge that a contract was in place.

[60] It is clear that the contract was not amended in accordance with its terms. However, there are various acts of part performance which I believe, when properly understood, demonstrate an intention by the parties to vary their written agreement. These acts of part performance include an agreement to vary the price, an agreement to change the subject matter, and an agreement to alter the terms of payment.

[61] It could not be genuinely accepted that the monies paid by the respondent to the applicant were paid on some moral basis, as Maverick asserted. The agreement between the parties was conducted by two arms-length parties who were not related by blood or any other form of business connection. Aside from their contractual obligations and the relevant provisions of the Australian Consumer Law, they owed no further duty to one another.

[62] In the parties' communications before things broke down, there certainly appears to be a willingness and desire to work together regarding the sale of the business, aiming to ensure that when sold to Belinda, the business would continue to thrive. In that regard, the applicant offered to assist.

[63] I found the response from the respondent Belinda and her partner Maverick, to be, to say the least, disingenuous. There seemed to be no genuine intention to honour the agreement as proposed by the applicant. The fact that they did not mention any alternative version or view of the agreement in the SMS messages from June is quite damning in that regard.

[64] It would have been simple to say, 'that is not what we agreed,' but that never happened. In fact, when John asked Belinda to have Maverick amend the agreement to reflect what was agreed, her response was 'Maverick will make the change to the agreement.' Based on all the available material and having listened carefully during the hearing, I believe the Respondent's intention evolved to not honour the terms of the agreement and, in fact, to resile from it. In this regard, Belinda has taken full control of all the business assets, as she described in her own communications. The respondent may have overpaid for the business. There was no evidence that the respondent sought independent legal or accounting advice before proceeding with the purchase. There was some suggestion that they had found an email from the All-Homes customer indicating they had no intention of continuing the business relationship with the applicant. However, despite the opportunity at the hearing to locate such an email, it could not be found, and Maverick eventually conceded that the email was not part of their material.

[65] Consistent with the assertions made by the respondent in their reply, I find that there was an agreement between the parties on 11 June 2024. Despite the expressed intentions of the parties to amend or modify their agreement through a written amendment executed by all parties, the agreement was modified by the subsequent oral agreement to transfer a 2021 LDV T60 motor vehicle as part of the sale of the business for $26,400 - comprising the initial price of $25,600 plus the agreed vehicle price of $26,400. This agreement was made orally between the applicant and the respondent.

[66] The parties further agreed to amend the agreement by reducing the purchase price for the business, including the vehicle, by $5,000. I accept that John provided reliable evidence. What he said during the hearing about what he disclosed was consistent with the paperwork he attached in his file bundle. The agreement was confirmed through SMS messages exchanged between Belinda and John from 5 July 2024 to 8 July 2024, and an email to Belinda on 30 July 2024 stated that the business sale agreement price was $26,000 upfront, followed by $1,000 per week, which was subsequently reduced to $21,000, then to $1,000 per week for 26 weeks. This was accepted and confirmed in an email from Belinda to John on 2 August 2024. The emails sent by John to Belinda in the course of their communications about the issues with the business are consistent with John's assertion about the amount to be paid for the business. The consistency is supported by his repeated statements that the debt is owed and what needs to be paid, aligning with his description of the agreed purchase of the business.

[67] The business activity statement, which is document 74 in his file bundle, aligns with his understanding of the agreement. However, I acknowledge that the document, created by him based on invoices he issued, can only support his claims. The email communications from Belinda, made at the same time as the claims about what was outstanding, simply indicated that the business needed to be able to pay its debts; there was no dispute about the amount owed in those earlier messages, as I have previously detailed. I do not accept Belinda's assertions that the $21,000 paid represented full value for the motor vehicle. Based on my review of the contemporaneous messages, emails, and the statements made by Belinda, Maverick, and John during the hearing, much of what Maverick said about the arrangements, especially regarding the initial payment and its impact on the understanding between the parties, should be rejected. I believe those explanations are recent inventions. Maverick could have avoided these issues by amending the agreement to better reflect the actual bargain rather than simply claiming that, since there was no original agreement in line with the initial terms signed by Belinda and John, there was no valid contract between them.

[68] In the response document, Maverick and Belinda assert several points. Interestingly, they state that although there was no agreement because the contract was invalid, they still rely on contractual misrepresentations or pre-contract misrepresentations, which could only have occurred if there had been a contract. No counterclaim was ever filed.

[69] If any unconscionable behaviour justifies compensation, it must be addressed through a separate claim. It cannot be concluded, based on the evidence, that there was a complete failure of consideration from John to Belinda regarding the sale of the business and its assets.

[70] This was an arms-length transaction involving the purchase of a service business. It is generally well-known that in service-type businesses, clientele and business value sometimes attach to the principal of the business. To some extent, this affects how accountants assess its value. The usual method used by accountants to determine the value of a business, with regard to its profitability, is somewhat reduced when it is a service industry business. It is clear that the purchaser did not make the usual or necessary enquiries with professionals before agreeing to buy the business. When things became serious, and it appears that the purchase did not generate the expected business activity, their response was to rely on alleged misrepresentations by the seller. As I highlighted during the hearing, although there were a number of assertions, the statements in the response document were generally lacking in detail and not supported by any independent evidence. There was no proof of any lost income or any specific failure by the applicant to supply information, but there was clear acceptance that the information available was provided before the documents were handed over, as John details in his communications and submissions to the court.

[71] John sent an email to the business's customers. Some customer responses suggest that the way the business was run did not align with how John conducted it himself. That was the buyer's risk. Conversely, it could be argued that the buyer was unhappy with what John claimed was the buyer's inability to properly manage the business. I fully understand why they might feel that way, based on what he said in that regard. It goes without saying, however, that if they wish to allege there were issues with what they were told about the business, they must prove the essential facts that demonstrate misrepresentation or failure on their part and justify withholding payment.

[72] I firmly reject any suggestion that there was no agreement to pay money. There could only have been a legal obligation to do so. I also reject the idea that money was paid for moral, altruistic, or good faith reasons, especially considering the deteriorating relationship between the parties over time.

[73] The respondent has been unable to demonstrate what representations or warranties were included in the agreement that the seller had not complied with.

[74] The respondent has not been able to provide any information about what the seller failed to supply to enable them to carry on the business in place of the seller. The respondent has not been able to specify which conditions precedent were not met by the seller and has been unable to explain why they proceeded with the purchase of the property if they believed that the seller had not provided them with a database, or whether the Halcol business was a material factor that would have influenced the seller's decision to sell. They also cannot explain why the Home Instead business was so significant when it was never mentioned in the contract. Additionally, they have not provided any evidence of income loss resulting from the respondent's allegedly misleading or deceptive behaviour.

[75] I find that the total amount owing under the instalment agreement regarding the vendor finance owed by the respondent to the applicant is $21,000. I also find that the respondent covers the applicant's costs for the filing fee of $379.50 and the ASIC fee of $10.

[76] I order that the respondent pay the amount of $21,389.50 to the applicant within seven (7) days.**

[1] Maverick is the respondent's partner. Although he was not a party to any contract he was involved in the transaction and was involved in the hearing.

[2] He seemed to have a significant role in the hearing and in terms of the problems with the sale and Belinda's response.

[3] A bundle was prepared for the hearing by the applicant.

[4] It was not even a requirement of any oral variations discussed let alone agreed to.