VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST                               	      VCAT REFERENCE NO. C5850/2019
CATCHWORDS	
Contract for ‘app’ development and maintenance, terms of contract, termination contrary to terms of the contract, breach, measure of loss, other claims not determined.	

APPLICANT 	Sophana Than (ABN: 25 616 458 505)	
RESPONDENT 	Brightest Australia Pty Ltd (ACN: 140 926 101) trading as Elegant Media	
WHERE HELD	Videoconference	
BEFORE	N Campbell, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	9, 10, 11 and 12 November 2020, 17, 18 and 19 March 2021 and 18 June 2021 	
DATE OF ORDER	9 August 2021	
date of written reasons	9 August 2021	
date of correction order	11 August 2021	
CITATION	Than v Brightest Australia Pty Ltd (Civil Claims) (Corrected) [2021] VCAT 881	

Order
The Tribunal orders that:
1	Brightest Australia Pty Ltd ACN 160 238 335 must pay Sophana Than the sum of $18,830.58.
2	Order 1 is stayed until further order. 
3	Any application for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 must be made in writing to the Tribunal within 21 days of the date of this order, as follows: 
(a)	The applying party must set out in full the submissions of the party on costs and the submissions must be served on the other party at the time of filing with the Tribunal.
(b)	The responding party shall within 14 days of receiving the costs’ application, file with the Tribunal and serve on the other party any submissions on costs. 
(c)	The Tribunal intends to make any decision regarding costs on the papers. 
4	If no application for costs is made to the Tribunal pursuant to order 3 within 21 days of the date of this order, the Tribunal directs the principal registrar to refer the file to Member Campbell for the lifting of the stay order.

N Campbell
Member			

APPEARANCES:		
For Applicant	In person	
For Respondents	Ms E Madalin of Counsel, instructed by Ms J Coventry, Solicitor and Mr A Bandara, CEO.  	

Reasons
The proceeding
1	Ms Sophana Than (“the applicant” or “Ms Than”) claims $108,468.13 inclusive of costs from Brightest Australia Pty Ltd trading as Elegant Media (“the respondent” or “Elegant Media”) pursuant to a contract for the provision of App development and maintenance services. Ms Than claims for breaches of contract and breaches of the Australian Consumer Law (“the ACL”). 
Background
2	On 7 August 2019, Ms Than lodged a claim in the Tribunal against Elegant Media for $67,995.63 in damages for breach of contract and compensation for breaches of the ACL. The contract between Ms Than and Elegant Media was for the development and maintenance of an application for mobile devices, known as an ‘App’. In summary, the purpose of the app was to replace hardcopy business cards with an electronic system for the exchange of similar information, as well as offering a range of other services to users.
3	The Tribunal made directions in this matter on 9 October 2019 and 8 July 2020, as well as on 18 February 2020, following a compulsory conference.
4	Ms Than filed amended points of claim on 24 July 2020.
5	Elegant Media filed points of defence on 4 September 2020.
6	The applicant filed a document headed Document of Discovery on 28 August 2020. This document included a reply to the points of defence and indicated a total amount claimed by Ms Than of $108,468.13.
7	The matter was heard by me over eight days, being 9 to 12 November 2020, 17 to 19 March 2021 and 18 June 2021. 
8	Ms Than and Elegant Media each filed an opening statement on 6 November 2020. The parties filed various bundles of documents in hardcopy and electronic format. Copies of some documents were in multiple bundles. In the conduct of the proceedings, the parties generally referenced documents in the bundles which were referred to as follows: the applicant’s discovery bundle, the Elegant Media tender bundle and the respondent’s discovery bundle.  
9	Ms Than gave evidence. Elegant Media called as witnesses, Mr Anushka Bandara, its CEO, Ms Yawmini Senarathne, a project manager with Elegant Media, Mr Kunal Raghani, a project manager with Elegant Media.
10	The parties provided various other documents as aids to their cases, such as indexes and chronologies. The parties filed written submissions prior to the final day of hearing on 18 June 2021.

Factual background
11	Ms Than had an idea for an app for mobile devices. Her idea was to convert the practice of the exchange of business cards from an exchange of small printed pieces of cardboard to an electronic exchange of similar information. This exchange would take place using an app for mobile devices to be called Poccket. Poccket, amongst other things, would also be a social business networking app, advertise jobs and provide for the sale of goods and services. 
12	Ms Than had no experience or qualifications in app development or programming nor any qualifications or experience in business, see T84-5, L26 to 4. An app generally requires three platforms, an IOS platform, for use on Apple devices, an android platform for use on non-Apple devices and an admin panel for the owner to ‘run’ the app. In approximately 2016, Ms Than engaged an app developer based in India to develop her idea into an app. Ms Than gave evidence that the three platforms were completed by the developers, but there were a lot of errors and crashes (see T 84, l 9-25).
13	Elegant Media carries on a business in the area of information technology, including the development and maintenance of mobile device apps. Elegant Media is based in Australia, its project managers are based in Australia and its developers are based in Sri Lanka. In November 2017, Ms Than attended an information session with Elegant Media. She discussed with the Elegant Media representative her app and the difficulties she was experiencing with her then developers. 
14	On or about 17 May 2018, Ms Than had a meeting with Pramukha Weerartne from Elegant Media to discuss the app. During this meeting, the parties discussed the potential terms of a contract for Elegant Media to work on the app. Ms Than gave evidence that she advised Elegant Media that the subscription Plan 3, which provided for unlimited services, was the plan which interested her. Elegant Media then sent a written proposal to Ms Than. 
15	Ms Than gave evidence that on 28 June 2018, she met with Yawmini Senarathne, a project manager for Elegant Media, to discuss the Poccket app. She told the Tribunal that the next day, she received a call from Mr Bandara, CEO of Elegant Media, advising that the cost of Plan 3 subscription which Ms Than was interested in, would increase from $1,990.00 to $4,990.00 per month from 1 July 2018. If Ms Than wished to secure the lower rate, she could sign a contract with Elegant Media prior to 1 July 2018.
16	On 29 June 2018, Ms Than entered into a contract with Elegant Media on the basis of the Plan 3. Elegant Media commenced work on the Poccket app. 
17	Ms Than claims that she was given various delivery dates for the three platforms by Elegant Media, which were not met on each occasion. Ms Than gave evidence that on 6 March 2019, she was told by Mr Kunal Raghani, a project manager with Elegant Media, that a completion date of 15 April 2019 could only be met if Ms Than agreed to an additional Plan 3 contract at a cost of $4,990 per month. Mr Raghani denied making such an offer. 
18	Ms Than gave evidence that on 13 March 2019, Elegant Media advised that they could only complete the app by 15 April 2019, if Ms Than agreed to a custom quote of $5,800.00 in addition to the existing Plan 3 subscription.
19	On 19 March 2019, Elegant Media advised Ms Than, by email from Mr Raghani, that it was terminating the contract with immediate effect, as the monthly fee for that month was due on 15 March 2021 and had not been paid. The email from Kunal Raghani, relevantly stated as follows:
Hi Sophana
I’m writing to announce the termination of our contract with you. Our contract was established on June 29th, 2018, and will officially come to a close on March 19th, 2019 due to your non-payment of the outstanding fee for this month (March 2019).
The pay cycle is every 15th of the month and there have been delays in the payment for the last 2 months by 10-12 days. Due to this action, the company has decided to terminate its services as provided in the signed agreement.
Also, we have been providing the services for you (sic) project for 7 months and we have been giving our best to provide you with the quality builds still you have indicated displeasure with either our services or our team.
…
20	Ms Than has since engaged an Australian based app developer to develop her Poccket app.
21	During the hearing there was a significant amount of evidence on issues such as:
a	Elegant Media’s experience and capability;
b	The nature of the Poccket app;
c	whether there was a specific date given by Elegant Media for the delivery of each platform of the app; 
d	what was a reasonable time for completion of the work by Elegant Media;
e	whether Elegant Media failed to provide the app within a reasonable time;
f	the scope of the instructions from Ms Than to Elegant Media;
g	whether Ms Than changed her instructions during the period of engagement and, if so, to what extent;
h	whether Ms Than was seeking more functions to be included in the app than she initially advised Elegant Media;
i	whether Elegant Media exercised due care and skill in undertaking the work;
j	whether the services provided by Elegant Media were fit for the purpose made know to it by Ms Than;
k	whether any work was undertaken by Elegant Media in particular periods of the engagement;
l	the development methodology to be used in the development of the app;
m	whether a system requirements specification and/or app strategy plan was required before work started on the development of the app.
Claims made by Ms Than 
22	Ms Than stated that her causes of action are as follows:
a	misleading and deceptive conduct on fees;
b	false, misleading representations and deceptive conduct about Poccket app development;
c	guarantee as to due care and skill;
d	failure to supply within a reasonable time on four separate delivery dates;
e	unfair terms in consumer contracts and service agreement;
f	termination of contract made by respondent due to non-payment of four days;
g	respondent not providing crucial source code and documentation;
h	liability for loss and damage due to Poccket app being destroyed from the respondent’s server due to non-payment of four days after approximately 10 months of payments made to the respondent.
23	Elegant Media in its outline of opening statement dated 6 November 2020 set out what it saw as the causes of action raised by Ms Than in her amended points of claim. In summary, Elegant Media set out Ms Than’s claims as follows:
a	Elegant Media was negligent;
b	Elegant Media made a false or misleading representation concerning the exclusion of a guarantee, presumably in breach of section 21 (m) of the ACL and/or the Australian Consumer Law and Fair Trading Act 2012 (Vic);
c	Elegant Media breached a guarantee that it would provide the services within a reasonable time, presumably in breach of section 62 of the ACL;
d	the Agreement contained unfair terms, presumably in breach of section 23 of the ACL;
e	Elegant Media engaged in various instances of misleading and deceptive conduct, and/or making false or misleading representations about the services, presumably in breach of sections 18 and/or 29 of the ACL;
f	Elegant Media breached clauses 4.11(e) and 8 of the Agreement;
g	following the termination of the agreement, Elegant Media destroyed, damaged and failed to return the Poccket build and IP to Ms Than.
24	For reasons which will become clear, I will first deal with the claim that Elegant Media breached the contract by failing to give Ms Than 30 days’ notice of termination of the contract pursuant to clause 4.11(e).
The terms of the contract
25	The written terms of the contract are contained in a document titled Mobile App Development Proposal, signed by Ms Than on 29 June 2018 (the proposal) and an unsigned document headed Service Agreement. Ms Than acknowledged in her evidence that she had access to the Service Agreement through a link in the email which attached the proposal, see T86 L7-12.
26	The proposal was for a Plan 3 - Fixed Price Premium Unlimited Service (Plan 3) at a price of $1990.00 plus GST per month. The monthly fee was payable in advance. The services offered by Elegant Media under a Plan 3 included up to one new task or feature could be queued at any given time. 
27	Clause 4 of the Service Agreement relevantly provided as follows:
4.1 	The Client will pay EM the amount(s) specified in the Quotation for the Work (the “Payment”).
…
4.3	The Client is to make payment of the sum due within fourteen (14) days of presentation by EM to the Client of a valid tax invoice.
…
4.6 	…
	If the issued invoices are not settled after 28 days of the initial invoice for the work, the client’s account will be suspended. At this stage, EM reserves the right re-sell this project and assets to another party if needed to re-coup the Project costs. From this period, all due invoices be forwarded to debt collectors.
4.7	If the Client defaults in making payment by a due date or is otherwise in breach of these terms and conditions (including any breach of warranty), EM may suspend supply of goods and/or services to the Client until the outstanding payment and any interest thereon has been paid and/or until default has been remedied.
…
4.11	The Client agrees to pay EM a monthly upfront subscription-based fee for any App, Web and Software Development Services and any App and Web Marketing Services. The client acknowledges and agrees that:
	…
(e)	EM reserves the right to at any time cancel any subscription-based Service with one-month prior notice to the Client.
(f)	EM reserves the right to cancel any subscription-based Service if the Client has not paid fees related to a subscription period.
28	Clause 12 of the Service Agreement relevantly provides as follows:
12.1	Either party may terminate this agreement:
(a)	in the event of a breach of this agreement by the other party, after the defaulting party has been given thirty (30) days written notice of such breach and has failed to rectify the breach; or
(b)	immediately by written notice to the other party if the other party suffers an insolvency event; or
	…
29	Clause 16.6 of the Service Agreement relevantly provides as follows:
16.6	To the extent permissible by law, EM excludes all other conditions and warranties implied by custom, the general law or statute. To the extent permissible by law: (a) EM’s total aggregate liability to the client under this agreement will not exceed the total of the payments received by EM from the Client under this Agreement; …
30	The Tribunal finds that it was an oral term of the contract that Elegant Media would provide app development and maintenance services to Ms Than for the Poccket app.
31	It is an implied term in every contract that the parties agree by implication to do all such things as are necessary to enable the other party to have the benefit of the contract (the cooperation term), see Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607-8.  The negative correlate is a covenant not to hinder or prevent the fulfilment of the purpose of the express promises, see Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 at [36]. Such a term will not be implied into the contract if inconsistent with the express terms of the contract.
Termination of the contract
32	Mr Bandara gave evidence that Elegant Media decided to terminate the contract with Ms Than as it was becoming difficult to work with Ms Than due to delays in payments by Ms Than and Ms Than’s unrealistic expectations, including in relation to deadlines.
33	Elegant Media informed Ms Than that it was terminating the contract by email dated 19 March 2019, which is discussed above. 
34	Elegant Media in its written submissions admits that clause 4.11(e) of the Service Agreement was breached by the Respondent, as it failed to give Ms Than 30 days’ notice of the termination of the contract. 
35	Although there were delays in Ms Than paying the monthly subscriptions, she was never informed that the work had been suspended due to late payment. There was no evidence that she was informed that work had been suspended. Ms Than conceded in cross examination that she was advised by Elegant Media that the work may be suspended if the payments were late. 
36	Mr Raghani gave somewhat vague evidence that work was suspended due to late payments by Ms Than, but he was unable say to when that occurred. Mr Bandara gave evidence that it was Elegant Media’s practice to suspend work on projects when payments were late. He did not give evidence that the work on Poccket was actually suspended. I am satisfied that if the work was suspended, Elegant Media would have advised Ms Than that this had occurred. One of the reasons for suspending the work would be to encourage payment by the client. If Ms Than was not advised of the suspension, there would be no encouragement for her to pay. I find that Elegant Media had not suspended the work on the Poccket app due to any delay in payment by Ms Than.
37	Further, Ms Than was not 14 days behind in her payments at the time Elegant Media terminated the contract. 
38	Clause 4.3 of the Services Agreement provides that payment is due within 14 days of the presentation of a valid tax invoice by Elegant Media to Ms Than. As Elegant Media were not issuing tax invoices, Ms Than could not have been in default of making a payment by the due date under clause 4.7. Therefore, the conditions in clause 4.7 were not met for the suspension of the provision of services to Ms Than. 
39	Similarly, the non-payment of fees referred to in Clause 4.11(f) of the Service Agreement must mean non-payment by the due date. As there was no valid tax invoice issued, the conditions were not met in Clause 4.11(f) for the cancellation of the service to Ms Than.  
40	As the contract was terminated immediately by Elegant Media and no clause of the contract allowed for termination in the circumstances which existed, Elegant Media breached clause 4.11(e) of the Service Agreement in the termination of its contract with Ms Than.
Calculation of damages for breach of termination clause 
41	As the Tribunal has found that Elegant Media breached clause 4.11(e) of the Service Agreement, the next step is to assess the damages, if any, that Ms Than is entitled to receive arising from this breach.
42	Prior to the termination of the contract, the parties were discussing the potential completion of the three platforms for the app by 15 April 2019. Ms Than stated that on 6 March 2019, Elegant Media had told her that they could complete the app by 15 April 2019, if she paid for a second Plan 3, in addition to her existing Plan 3, at the rate of $4,990 per month. Mr Raghani denied this and stated that he had said only that a second Plan 3 would speed things up. 
43	On 13 March 2019, Elegant Media advised Ms Than that it could complete the app by 15 April 2019, if Ms Than paid a custom quote amount of $5,800.00, in addition to the existing Plan 3, see emails from Mr Raghani to Ms Than at 6.29am and 2.25pm on 13 March 2019, in the Applicant’s discoverable documents at A44.157. Ms Than’s email correspondence at that time, indicates she was interested in negotiating making a further payment to have the app ready by 15 April 2029. 
44	Elegant Media state in their written submissions that the most Ms Than would have received if the contract was not breached was an extra month of work from Elegant Media, and as she did not pay for that month, the breach caused no loss. Presumably, Elegant Media rely upon the principle of the assessment of damages that where a respondent has a right to alternative methods of performance of the contract, a court (or tribunal) should assume that the respondent would perform the contract in a way least advantageous to the applicant and most advantageous to the respondent. In this case, the Elegant Media would argue that such a method would have been for Elegant Media to have given 30 days’ notice of termination under clause 4.11(e) of the Service Agreement. 
45	This legal principal is subject to the facts and relevant circumstances of the particular case, as an assessment of damages should not be made on a fiction, see TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 150, 154-6. 
46	If Elegant Media had not terminated the contract in breach of clause 4.11(e) of the Service Agreement, I find that Ms Than would have chosen to put the necessary financial resources into the project to complete the app by 15 April 2019, as offered by Elegant Media. The app could then have been completed (within 30 days). In assessing damages, account may be taken of events which would have occurred had the contract not been terminated, see Shevill v Builders Licensing Board (1982) 149 CLR 620 and Commonwealth v Amann Aviation [1991] 174 CLR 64 at 74, 91-2 and, particularly at 94, where it is stated that in assessing damages for breach of contract the Court is engaged in a hypothetical exercise of how the contract would have turned out if not brought to an end.
47	Further, I find that an arrangement as to the cost and date of completion of the remaining work would have meant that there was no reason for Elegant Media to terminate the contract. Elegant Media’s stated reasons for the termination were the difficulty receiving payment from Ms Than and her unrealistic expectations as to deadlines.
48	I find that due to the breach of clause 4.11(e) of the Service Agreement, Ms Than has lost the completed version of the three platforms of the app. 
49	As the app was not completed prior to the termination of the contract and I am satisfied that the alternative app developers would not guarantee the work of a previous app developer if they completed the work of Elegant Media, I find that Ms Than needed to recommence the development of the app with a new developer.
50	In the applicant’s written submissions filed on 4 June 2021, Ms Than claims the amounts of $109,265.12 plus $50,000 for features Elegant Media allegedly worked on but never completed plus further ‘unknown’ amounts for the bump feature and the ‘pocket a deal’ feature. The total amount is significantly higher than the amount included in the amended points of defence, being $108,468.13. Leave had not been sought by Ms Than or granted by the Tribunal to increase the quantum of the claim from the amount set out in the amended points of claim. 
51	Ms Than claims both the fees which she paid Elegant Media to develop the app and the fees incurred and expected to be incurred in the development of the app from scratch with the new developer. The fees paid to Elegant Media amount to $18,830.58. The amounts claimed for the new developer are $2,365.00, $47,190.00 and $13,024.00 plus approximately $50,000 for features which it is alleged were worked on by Elegant Media but never completed plus an ‘unknown’ amount for the bump feature and the ‘Poccket a deal’ feature. 
52	In substance, Ms Than is seeking to have Elegant Media refund all monies she has paid for the work undertaken by Elegant Media and also have Elegant Media completely fund the development of the app by the new developer. She seeks to have a fully functioning app at no cost to herself. 
53	The starting principle as to the calculation of damages, is that damages are to place an applicant in the same situation as if the contract had been performed, see for example Commonwealth v Amann Aviation Pty Ltd [1991] 174 CLR 64 (“Amann Aviation’) at 80 and 98. An applicant is not entitled to be placed in a better position, see Amann Aviation at 82. In some circumstances, damages may be assessed on the basis of expenditure actually and reasonably incurred in the performance of the contract to the extent to which the expenditure is wasted as a result of the breach, see for example, McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 412-3 and 415 and Amann Aviation at 81, 85-6 and 117.
54	Applying these principles, Ms Than cannot recover both the amount paid to Elegant Media and the amounts she will need to pay a new developer to now develop the app or complete the work of Elegant Media.
55	Ms Than is claiming a greater amount in damages for the work done and to be done by the new developer than she paid under the contract. It is possible in some circumstances to recover damages of greater than the price of contract. This occurs where the breach of contract causes losses greater than the price of the contract. 
56	Ms Than has produced documentation indicating that there would be greater costs to have the Poccket app now developed from the start, than she has paid to Elegant Media to develop the app. A difficulty with this aspect of the claim is that Ms Than has decided, with the latest attempt to develop the Poccket app, to use completely Australian based App developers, not developers who have a substantial amount of the development or coding work undertaken overseas, like Elegant Media. Further, the quotes provided for the work on the latest attempt to develop the app do not make clear that the same features are to be included in the app as were to be completed by Elegant Media.  
57	I find that it is not possible to compare these different types of services when assessing the appropriate level of damages. The loss arising from a breach of contract when a substantial part of the work under the contract is being undertaken overseas cannot be calculated by the costs of the work if the work was undertaken in Australia. The work must be the same work to be comparable, see for example, Vasiliadis v Saoud [2919] VCAT 1594 at [20-1]. To do otherwise would give Ms Than an uncovenanted profit, see Radford v De Froberville [1977] WLR 1262 at 1284. There is no evidence of like for like quotes, invoices or receipts for the work.
58	I find that the appropriate measure of damages in this case is the amount Ms Than paid for the services from Elegant Media and any further out of pocket expenses incurred in Ms Than’s performance of the contract. This being the expenditure actually and reasonably incurred in the performance of the contract which is now wasted due to the breach of contract.  It was Ms Than’s choice to engage with a different type of service and to have different work performed. She is not able to recover these amounts as damages for breach of contract.
59	I find that Ms Than is not entitled to recover as damages the amounts paid and to be paid to the third developer for the recommencement of the development of the Poccket App. 
60	Several items in the nature of legal costs of the proceeding have been claimed by Ms Than. Legal costs for the proceeding are not part of the damages to be awarded for breach of contract. Legal costs will be considered, if required, at a later time. Therefore, the following costs are excluded from the damages calculation: the Taylor Splatt Lawyers’ fees, the PLC Lawyers’ fees, the expert evidence report fees, the VCAT filing fee and the VCAT hearing transcript fees.
61	Ms Than has claimed the fees paid to the software developer in India who she engaged prior to engaging Elegant Media. Elegant Media’s breach of contract has not caused Ms Than to suffer the loss of these fees. Elegant Media are not responsible for the costs Ms Than incurred in unsuccessfully engaging a developer to develop Poccket prior to the engagement with Elegant Media.
62	Ms Than has claimed the fees incurred for preliminary work for a patent application regarding the Poccket App. In evidence, she was unable to explain why this work would no longer be able to be used once the App has been developed by another developer. I am not satisfied that this is a loss arising from the breach of contract by Elegant Media.
63	Ms Than is claiming the amount of $1,672.75 which she paid in fees for an AWS Amazon server for the period from 3 July 2018 to 3 June 2021.  Ms Than gave evidence that there was nothing on this server as Elegant Media deployed the existing source code on this server to their own server, when they commenced work, and did not deploy it back to the server, when the contract was terminated. Ms Than gave evidence that she continued to pay for the server as it was needed as evidence that the source code was not redeployed to the server. 
64	Elegant Media at no time stated that the source code was to be deployed back to this server. I am not satisfied that the expense of this server arose from the breach of contract by Elegant Media.
65	The correct measure of damages for Elegant Media’s breach of contract is the amount paid by Ms Than to Elegant Media for the development of the App. That is the amount of $18,830.58. 
Intellectual Property Claims
66	Ms Than claims that Elegant Media destroyed and/or damaged the Poccket build upon the termination of the contract, failed to return the complete Poccket intellectual property to Ms Than and failed to return Ms Than’s intellectual property to Ms Than’s AWS server upon termination of the Agreement. Elegant Media’s case is that on the termination of the contract it handed over the source code and account credentials to Ms Than. They say this information was all that Ms Than needed to access and move the intellectual property. Elegant Media relies upon an attachment to an email sent to Ms Than said to contain the account credentials and links to the code, see email from Mr Raghani to Ms Than at 12.12 pm on 20 March 2019 with attached document headed ‘Poccket App Accounts’ in the Elegant Media tender bundle at 43 R84, A45 and A46.
67	While giving evidence, Ms Than was asked what was the value of the source codes, design assets and documentation worked on by Elegant Media, if her new developer was starting development again from scratch. In response, Ms Than stated that they were of no real value, as the new developers would take more time to fix the existing code and it would not be covered by the new developer’s warranty. Therefore, I find that Ms Than, even if she proves a breach in relation to the failure to return the intellectual property, has not proven any loss arising from such a breach. Ms Than cannot succeed in this claim and it must be dismissed.
Other claims 
68	In relation to each of the other causes of action claimed by Ms Than, including claims of: making false and misleading representations concerning the exclusion of a guarantee, failure to provide the services in a reasonable time, that the agreement contains unfair terms and that Elegant Media engaged in misleading and deceptive conduct, I am not satisfied that, even if any of these claims were made out, Ms Than would be entitled to compensation or damages any greater than the amount the Tribunal has found she is entitled to receive for the breach of the contract.
69	Therefore, I do not need to consider the other causes of action claimed by Ms Than in this matter. I do note that the unfair terms claim was misconceived as it was not a claim in relation to terms of the contract, but was directed to Elegant Media’s sales tactics prior to the contract being entered into.
70	As I have found that Ms Than could not recover an amount greater than $18,830.58 pursuant to any other cause of action, I do not need to consider and determine the remaining contested factual and legal matters referred to in [21] above.
Conclusion
71	I will order that Brightest Australia Pty Ltd ACN 160 238 335 must pay Sophana Than the sum of $18,830.58. As there may be an issue of costs, I will stay the order for payment of this amount until any application for costs is resolved.
72	Any application for costs of this proceeding must be made in writing to the Tribunal within 21 days of the Tribunal’s orders, such an application should set out in full the party’s submissions as to costs taking into account the requirements of section 109 of the Victorian Civil and Administrative Tribunal Act 1998. The responding party shall within 14 days of receiving the costs application and submissions, file with the Tribunal and serve on the other party, that party’s submissions on costs. The Tribunal intends to make any decision on costs on the papers.

N Campbell 
Member