Brian Burston & Associates Pty Ltd v Keyter [2018] NSWCATAP 302

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brian Burston & Associates Pty Ltd v Keyter [2018] NSWCATAP 302 Hearing dates: 9 November 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Jurisdiction: Appeal Panel Before: R L Hamilton S.C., Senior Member R Dubler S.C., Senior Member Decision: 1. Appeal dismissed. 2. Each party to pay their own costs. Catchwords: CONTRACTS- consumer law- repudiation of contract- copyright in architectural drawings- appeals-error of law- grant of leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229 Blair v Osborne & Tomkins [1971] 2 QB 78 Collins v Urban [2014] NSWCATAP 17 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 Category: Principal judgment Parties: Brian Burston & Associates Pty Ltd (Appellant) Louise Keyter (Respondent) Representation: Brian Burston (Director)(Appellant) Respondent self-represented File Number(s): AP18/38176 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: n/a Date of Decision: 02 August 2018 Before: K Ross, Senior Member File Number(s): GEN18/20624

reasons for DECISION 1. The decision of Consumer and Commercial Division of the Tribunal was given on 2 August 2018. 2. The facts are as follows: On 14 September 2015 Ms Keyter engaged Brian Burston & Associates Pty Ltd to draft and provide her with plans suitable for DA submission for a proposed residence. The total fee was $3500 plus GST, less progress claim paid, all of which was paid in advance of completion of the work. Brian Burston & Associates Pty Ltd invoiced Ms Keyter, and she paid the total sum of $3,900.00 which was the full amount agreed for provision of DA ready plans. 3. The company was the service vehicle of Mr Brian Burston. 4. In July 2016 Brian Burston & Associates Pty Ltd provided preliminary plans to Ms Keyter. Those plans were stamped "Copyright – Brian Burston. Client Review Purposes Only. Not for Construction or Council Submission". It is also of interest to note that the plans stated in the top right-hand corner as follows "Copyright 2015 Brian Burston & Associates Pty Ltd. Reproduction of the whole or part of the document constitutes and infringes copyright. The information, ideas and concepts contained in this document is/are confidential. The recipient(s) of this document is/are prohibited from disclosing such information, ideas and concepts to any person without prior written consent of the copyright holder. Contractor to check and verify all levels, datums and dimensions on site and shall report any discrepancies or omissions to this office prior to start of work and during the construction phase. This drawing is to be read and understood in conjunction with structural, mechanical, electrical and/or any other consultant's documentation as may be applicable to the project prior to start of work and its duration. Measurement scaling of this drawing shall only be permitted in its digital form." 1. Ms Keyter sought amendments to be made to the plans before other consultants could become involved, but all the requested amendments were not done. Ms Keyter contacted Mr Burston on numerous occasions about finishing the work. 2. Ms Keyter attended the appellant's premises for a scheduled meeting but Mr Burston was not there. Mr Burston said he would reschedule the meeting but did not. Ms Keyter requested working drawings to be returned to her but they were not returned. After various attempts to get the work completed Ms Keyter wrote to Brian Burston on 14 August 2017 requesting the services either be completed within 3 months or the cost of the plans be refunded. She sent the letter to Mr Burston's business, residential, parliamentary office and email address. Mr Burston did not reply to that letter, or otherwise respond within the 3 months. The work was not completed. 3. Ms Keyter took her complaint to the Department of Fair Trading. She had her solicitors write in December 2017. Ms Keyter commenced proceedings in the Tribunal on 2 May 2018 and the Tribunal decided in her favour on 2 August 2018. Mr Burston made no counter claim on a quantum meruit basis. 4. Mr Burston filed a Notice of Appeal. He sought leave to amend the Notice. This requires leave of the Appeal Panel. It was directed that the leave question be determined at the hearing of the appeal. 5. Leave was opposed. 6. The original grounds of appeal as put by Mr Burston are that there has been a substantial miscarriage of justice being a denial of procedural fairness, and a denial of natural justice on the basis that: 1. The decision is not fair and equitable as it is against the weight of evidence 2. The decision is based on an error in law in relation to copyright in the plans, and reliance is placed on the decision of the High Court in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55. 1. The amended grounds add a third ground being: 1. (c) the decision referred to copyright in the plans but this issue was not referred to during the hearing, and Mr Burston was denied the opportunity to make submissions in relation to the matter. 1. The amended Notice of Appeal puts these as grounds of appeal as of right for errors of law. Mr Burston also sought leave to appeal on the merits relying on essentially the grounds of appeal above with more particulars, and adding a ground that the tribunal was in error in finding that the contract was frustrated because Mr Burston is no longer in a position to complete it. He says this is against the evidence. Further Mr Burston claimed he was entitled to a quantum meruit even though he had not claimed it at first instance. 2. Ms Keyter opposed the amendment for the reason that she had not been given a chance to further reply. Mr Burston filed the amended Notice on 3 October 2018, and Ms Keyter's detailed reply submissions were filed on 15 October. The appeal was heard on 9 November 2018. This was, in our view sufficient time to enable Ms Keyter to obtain leave and file and serve a further reply if she had wished. 3. Leave to amend was granted. 4. Mr Burston says that the plans that were provided are suitable for submission to council at a meeting prior to lodgement of a DA. Mr Burston concedes that they are not yet ready to be lodged with a DA. He also agreed that there were further amendments which could be sought and performed at no extra charge. 5. Before us he stated that there were further reports to be gathered by Ms Keyter before the matter could be discussed with council at a pre-lodgement meeting and that he had done all that he could do up to that point. Ms Keyter made the point that amendments requested by her had not been done. Mr Burston also offered for his twin brother to complete the work. 6. The Tribunal held that it would be just and equitable to order Brian Burston and Associates to refund the amount of $3,900.00 paid to it as the contract had not been completed and as he had not made any response to the applicant's letter requesting completion of the work or refund of the money. 7. As part of the reasons relied upon by the Tribunal were that "Copyright in the plans remains with the respondent [Mr Burston] and in these circumstances the applicant [Ms Keyter] has received no value for the monies paid". 8. The Tribunal went on "The Tribunal is satisfied that the contract has been frustrated because the respondent [Mr Burston] is no longer in a position to complete it." 9. Before us Mr Burston relied on the statement about copyright as being an error of law upon which the decision of the Tribunal miscarried. He also claimed that he was not afforded an opportunity to make submissions on the issue. 10. We were not provided with details of what was argued before the Tribunal below in terms of copyright. However we have noted the copyright claims endorsed on the drawings provided. 11. Mr Burston argues that the case of Concrete Pty Ltd & Parramatta City Council [2006] HCA 55 establishes that there is an implied licence to use copyright architectural plans for a development by the person who has paid for those plans. While this can be accepted as the general position (the High Court referred with approval to Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229 and Blair v Osborne & Tomkins [1971] 2 QB 78) the High Court did note some qualifications such as at [73] where a nominal fee is charged for plans for a limited purpose (e.g. to obtain planning permission), and at [84] if there is an agreement to the contrary, an express contract or an express reservation of copyright. 12. In the present case the Tribunal decision does not analyse the position regarding the copyright question in any detail. 13. In view of the wording of the copyright notices on the plans it seems to us that this is not a case which is on all fours with the Concrete case relied upon by Mr Burston. The wording expressly reserves copyright and severely limits the use that can be made of the drawings. 14. Mr Burston further stated in oral submissions to us that the copyright notices are designed to stop people saying "Thank you, I'll take these plans and go with them on my own from here", which seems to confirm the express reservation. 15. This does not seem compatible with what Mr Burston argues is the grant of an implied licence. 16. At the appeal hearing Mr Burston submitted that it was open to Ms Keyter to take the plans to another architect or drafter and get her amendments done. However no offer along these lines was made before proceedings commenced and it seems likely that another architectural drafter would feel reluctant to potentially breach copyright without a formal written authority or release or transfer from Mr Burston. 17. Mr Burston was too late in the piece in trying to retrieve the position in the form of a submission many months after Ms Keyter gave him a written notice to have the plans completed and if not to obtain a refund of the fee. 18. As to the question of whether Mr Burston should have had an opportunity to address the Tribunal about copyright, it is our view that the point was squarely before the Tribunal. The plans were in evidence with the copyright notices on them. Mr Burston could have made submissions but did not. The Tribunal was entitled to make the finding. In the interests of finality the Tribunal is not required to go back to the parties to seek submissions on a point after the hearing. It may if it wishes. There was no unfairness here. 19. In the end we do not consider the copyright issue to have been part of the essential rationale for the decision anyway. The decision in our view was based upon the failure to respond to Ms Keyter's demand to complete the contracted work within a reasonable time, or refund the fee. The contract was for a completed product (drawings suitable for DA submission). Although the contract was expressed by the Tribunal to have been "frustrated", it is more accurate to describe it as repudiated by Mr Burston by failing to complete the work, with the repudiation accepted by Ms Keyter at latest when she commenced proceedings. 20. As to whether the decision was against the weight of evidence such as to constitute an error of law our view is as follows. The evidence about the terms of the contract, the repudiation (with no response at all to the demand to complete within the period specified) and the acceptance was compelling. It was too late at the Tribunal hearing for Mr Burston to try to retrieve the position by making concessions if they were not acceptable to Ms Keyter. The contract was at an end. It had not been completed. No quantum meruit was sought. An argument that the decision involved an error of law because it was against the weight of evidence is a hard argument to make in ordinary circumstances. It is an argument usually made when leave is sought to appeal on the merits. Here the weight of evidence overwhelmingly supported Ms Keyter's position. 21. We do not consider there was any error of law in the circumstances. 22. The next issue is whether leave should be granted to appeal on the merits. This requires reference to Schedule 4 clause 12 of the Civil and Administrative Tribunal Act 2013 (CAT Act) since this is an appeal from the Consumer and Commercial Division. 23. The provisions of Schedule 4 clause 12 states that leave should only be granted if we are satisfied there has been a substantial miscarriage of justice because 1. The decision of the Tribunal under appeal was not fair and equitable, or 2. The decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The decision of the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 sets out in par [77-84] the matters to be taken into account in deciding whether to grant leave. Having regard to those matters and to the following facts: 1. Ms Keyter's letter giving Mr Burston time to complete the plans or refund the fee within 3 months, following a lengthy period of chasing him to complete the work. 2. The time given by Ms Keyter was a reasonable time to comply. 3. There was no response at all received from Mr Burston to the letter. It was reasonable to treat Mr Burston as having repudiated the contract. 4. Mr Burston made no claim for a quantum meruit in the Tribunal for the work that he had done on the plans. 5. Although at the appeal hearing (and in the Tribunal below) Mr Burston submitted that he had done all that he could up to the date of providing plans to Ms Keyter suitable for discussion with council at a pre-DA lodgement meeting, he recognised that Ms Keyter wanted further amendments before pre-DA lodgement, and that the plans may need to be further adjusted to accommodate any concerns expressed by council at the pre-lodgement stage. So the contract had not been completed. 1. At the hearing below, and before the appeal panel Mr Burston did make an offer to complete the plans via his twin brother but that offer was not made until the hearing. 2. Ms Keyter says that having the plans completed by Mr Burston's twin brother is not satisfactory to her. She says that she regarded the contract as being with Mr Burston personally although formally made with his company. She also says she has lost faith in Mr Burston's ability or willingness to complete the plans to her requirements. 3. Where no claim is made for quantum meruit below it is hard to say that Mr Burston has been denied an opportunity that was fairly open to him such that there has been a substantial miscarriage of justice. 4. In the circumstances we find that Ms Keyter having given written notice to have the drafting work done within a reasonable time in a way that was suitable for submission to council for a DA as contracted for, and having met with no response she was entitled to treat the contract as being repudiated by Mr Burston, and to seek repayment of the full amount prepaid by her to achieve a particular result. 5. In our view none of the grounds in Schedule 4 clause 12 have been established. Accordingly leave to appeal is refused.