QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION: 	The Raiders Pty Ltd v Punton & Anor [2020] QCAT 522	
PARTIES:	THE RAIDERS PTY LTD	
	(applicant)	
	v	
	ALISTER PUNTON
(first respondent)
SHANNON LEE
(second respondent)	
		
APPLICATION NO/S:	MCDO60862-19	
MATTER TYPE:	Other civil dispute matters	
DELIVERED ON:	21 December 2020	
HEARING DATE: 	18 September 2020	
HEARD AT:	Brisbane	
DECISION OF:	Adjudicator Gaffney	
ORDERS:	1.	Alister Punton is to pay to the Applicant the amount of $14,000.
2.	There is no order as to costs.	
CATCHWORDS:	GUARANTEE AND INDEMNITY – CONTRACT OF GUARANTEE – where the applicant contracted with respondents’ company for the provision of services for the implementation of customer relationship management software – where the respondents were alleged to have executed a personal guarantee – whether the first respondent executed the guarantee – whether there were amounts ‘due and payable’ by the company under the contract which could be recovered under the guarantee, where payment terms under the contract were unilaterally varied – whether payment under the contract was dependent on performance – where defective performance alleged – whether the contract was terminated. 

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c), s 93, s 100, s 102, Sch 3.
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 
Briginshaw v Briginshaw (1938) 60 CLR 336 
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 227
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Koompahtoo Local Aboriginal Land Council v Sanpine (2007) 233 CLR 115 
Owen v Menzies [2013] 2 Qd R 327 
	
APPEARANCES: 		
Applicant:	Self-represented by Travis White and Hannah Brace	
Respondents: 	No appearance	

REASONS FOR DECISION
Background
[1]	On 16 October 2019 the applicant (‘Neighbourhood’) filed an ‘Application for minor civil dispute – minor debt’ in Form 3 (‘the Application’). It claims the amount of $24,000 plus the filing fee, service fee and Australian Securities and Investments Commission (‘ASIC’) search fee, aggregating to $24,963.20.
[2]	The Application was heard on 18 September 2020. There was no appearance by the respondents. Travis White, Managing Director of the applicant (‘Mr White’), and Hannah Brace (‘Ms Brace’) appeared for the applicant, and were sworn in. The claim against the second respondent (‘Mr Lee’) was withdrawn at the hearing.
[3]	I was satisfied that the first respondent (‘Mr Punton’) had been served with the Application and Notice of Hearing, based on the certificate of service, the affidavit of service and the fact that Mr Punton filed a Response after having been served. I proceeded in his absence under section 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
The Application
[4]	The basis of the claim is described in the Application as follows:
We conducted work with Storylines to assist them with the implementation of Marketing and sales software Hubspot. Several attempts to gain payment were made, we were told that investor money still had not arrived which is something we found out post signing the contract. They have provided documents of incomplete work though work was stopped halfway through the implementation of the project as payment had not been made.
[5]	The documents attached to the Form 3 are:
(a)	a document entitled ‘Service Level Agreement’ (‘SLA’) between The Raiders Pty Ltd and Storylines Inc. (‘Storylines’), comprising 12 pages, including the following attachments:
(i)	‘Terms and conditions’ (‘terms and conditions’);
(ii)	‘Retained service schedule’ (‘RSS’);
(iii)	‘Schedule’; 
(iv)	‘Privacy Statement’; and
(v)	‘Agreement of Guarantee and Indemnity’ (‘Guarantee’); 
(b)	a document identifying electronic correspondence and documents exchanged between the parties (‘Document History’); 
(c)	an email from Mr White to Mr Punton dated 13 September 2019 (‘the 13 September email’); and
(d)	an email response to the 13 September email from Mr Punton on 15 September 2019.
[6]	Further documents were filed by Neighbourhood before the hearing.
[7]	The SLA appears to be have been signed by Mr Lee on 22 August 2019 and ‘witnessed’ by Mr Punton on 23 August 2019.
[8]	The Guarantee was, according to Neighbourhood, signed by Mr Punton and Mr Lee on 23 August 2019. Mr Punton is described as ‘Founder’ and Mr Lee as ‘CEO’. Mr Punton disputes that he signed the Guarantee and I deal with that issue later in these reasons.
[9]	Given that the Guarantee is, or purports to be, separately signed by both Mr Punton and Mr Lee, I consider it to be a separate document and that the documents comprising the contract between Neighbourhood and Storylines (‘Contract’) are the SLA, the terms and conditions, the RSS, the Schedule and the Privacy Statement.
[10]	‘Neighbourhood’ is defined in the SLA and the terms and conditions as ‘The Raiders Pty Ltd’. ‘The Client’ is defined in the SLA as Storylines. 
[11]	The SLA provides, relevantly, as follows:
(a)	in an opening statement headed ‘Our Commitment’:
Neighbourhood commits to providing the Client with a preferred business partnership based on the delivery of solutions within the realm of advertising, marketing, creative, strategy and communications, with the sole intent of assisting the Client in solving business problems.
On a project-by-project basis, it is Neighbourhoods’ (sic) role to ensure the Client understands, and work in partnership with the Client to reach a commercial solution to benefit the Client.
(b)	clause 1 - ‘Exclusive Appointment’:
The Client hereby appoints Neighbourhood as its exclusive creative communications partner with effect from the date of this Agreement on the terms contained herein together with Neighbourhood terms and conditions.
(c)	clause 2 - ‘Term of Agreement’:
The term of the agreement is for 3 months from the date of this Agreement.
(d)	clause 3 - ‘Amount of Contract’:
The retained monthly fee is $8,000 per month as per the term of Agreement.
(e)	clause 4 - ‘Services’: 
Subject to the terms and conditions of this Agreement, Neighbourhood will perform the services for the Client during the Term of the Agreement within the timeframes as described at Schedule 2 of this Agreement. Additional services may be provided by way of written agreement with the Client at an additional cost. Neighbourhood work to a schedule of hours and services that is agreed every month with the Client and ensure the full digital requirements of the Client are met with our standard of expertise and priority.
(f)	clause 5 - ‘Terms and Conditions’:
The Terms and Conditions governing the Agreement are attached.
(g)	clause 6 - ‘Acceptance of this Agreement and the Terms and Conditions:
The Client enters into this Agreement on the terms contained herein and agrees to Neighbourhoods’ (sic) terms and conditions (as may be amended from time to time) attached hereto.
[12]	The terms and conditions provide, relevantly, as follows:
(a)	Clause 1.2:
“Agreement” means the Service Level Agreement or Ad-Hoc Agreement and these terms and conditions. It includes these terms, any covering letter, price estimate and any other document that refers to these terms. 
(b)	clause 1.11:
“Goods” means the goods the subject of the Agreement.
(c)	clause 1.20:
“Services” means the services to be performed by Neighbourhood as described at schedule 2 of the Agreement and any services associated with the provision of the Goods, including but not limited to the following…
(d)	clause 8.1: 
The terms of payment are strictly fourteen (14) days from the date of the invoice (or such other period as nominated by T (sic) Neighbourhood herein). Neighbourhood may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
(e)	clause 16.1:
All payments required to be made by the Client under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
(f)	clause 18.2:
Neighbourhood will not be liable or responsible for any delay or failure to perform the Services under the Agreement where such delay or failure was caused directly or indirectly by the Client, including any Client related delays which include but are not limited to a lack of action or responsiveness  to written requests for feedback, approvals or other information required in order to deliver the Services. 
(g)	clause 19.1:
The Client acknowledges and accepts that Neighbourhood employ the use of marketing services, platforms and APIs in the course of providing its Services under the Agreement, which include but are not limited to the following:
19.1.1 Hubspot
… 
(h)	clause 22:
22.1 Neighbourhood will use all reasonable endeavours to contact and engage the Client in order for Goods and/or Services to be delivered within the timeframes specified under this Agreement.
22.2 Any delay which occurs as a result of the Client’s:
	22.2.1 failure to comply with its obligations under this Agreement; or
22.2.2 lack of action or responsiveness to written requests for feedback, approvals or other information required in order to deliver the Goods and/or Services will be considered a Client related delay.
22.3 The Client acknowledges and agrees that Neighbourhood will not be responsible for delays in the provision of Goods and/or Services as per this Agreement due to a Client related delay.
(i)	clause 23.1:
23.1 Neighbourhood will:
23.1.1 perform its obligations with the standard of skill, care and diligence expected of a skilled and competent professional practicing in the particular field relevant to the Services; 
23.1.2 provide general advertising and communication account management eg strategic planning and brand management, communication strategy development, budget administration and controlling, overall consultancy and client contact as agreed and required.
…
(j)	clause 25:
(i)	clause 25.3: 
The Agreement may be terminated upon written notice by one party to the other party following a Relevant Event.
(ii)	Clause 25.4: 
A Relevant Event as per section 25.3 of the Agreement is committed if:
25.4.1: either party fails to perform its obligations under the Agreement and this failure continues for a period of thirty (60) (sic) days after the delivery of written notice detailing this failure and requesting a cure.
[13]	The RSS provides as follows:
Description	Timeframe	Costs	Payment Due	
Hubspot Onboarding	 3 months	$8,000 + GST per month	15th of each month	
Total	3 months	$24,000	15 days after Invoice	
[14]	The Schedule identifies the Account Manager as Dominic Carlin and contact times as ‘Monday weekly WIP’s or another time agreed by Storylines’. The term of the agreement is specified as 3 months, the commencement date as 23 August 2019 and the ‘Retained Monthly Fee for Agreement of term’ as $8,000 + GST for 3 months.
[15]	The Guarantee first identifies the Guarantee as being in favour of the Neighbourhood (by the use of the words ‘To: The Raiders Pty Ltd ACN 605 219 234 and its related bodies corporate (Neighbourhood)’. The Guarantors are identified as Mr Lee and Mr Punton (albeit as directors). The Guarantee states ‘(Guarantors) hereby covenant and undertake and if more than one, jointly and severally, as follows:’.
[16]	The Guarantee further contains, relevantly, the following clauses:
(a)	clause 1:
The Guarantors acknowledge and agree that the guarantee & indemnity is governed by the laws of Queensland and the laws of the Commonwealth of Australia in force in Queensland and submit to the exclusive jurisdiction of the Courts of Queensland.
(b)	clause 2.1: 
In consideration of Neighbourhood extending or agreeing to extend credit or further credit to the Client at the Guarantors’ request (testified by the Guarantors’ execution of this Agreement) for Goods and/or Services undertaken from time to time, the Guarantors guarantee payment to Neighbourhood of all money which is now or at any time in the future becomes due and payable to Neighbourhood by the Client on any account or accounts whether now existing or which may in the future be opened or in any manner whatsoever, including but not limited to amounts payable by the Client to Neighbourhood arising out of a relationship of trustee and beneficiary.
(c)	clause 3.1: 
The Guarantors agree to guarantee and indemnify Neighbourhood against all losses damages or expenses that Neighbourhood may suffer as a result, either directly or indirectly, of any failure by the Client to make due payment of any money owing to Neighbourhood whether for materials sold or otherwise or to observe the terms of any agreement between the Client and Neighbourhood including costs on an indemnity basis of any attempt or attempts to recover from the Client or any Guarantor and whether successful or not or whether frustrated by the Client or Guarantor or by operation of law including costs ordered by a court to be paid by Neighbourhood to the Client or to any Guarantor including the costs of lodging and withdrawing caveats and obtaining injunctions or enforcing a security over property given to Neighbourhood.
(d)	clause 3.3:
Where two or more persons execute this guarantee and indemnity, the guarantees, covenants and obligations in this guarantee and indemnity given or undertaken by the Guarantors will be deemed to bind the Guarantors jointly and each of the Guarantors severally and Neighbourhood will be entitled to seek payment in full from any one of the Guarantors without seeking payment from the other guarantors.
(e)	clause 3.4:
Neighbourhood will have the right to proceed against the Guarantors under the Guarantee & Indemnity irrespective of default of the Client to pay and with or without notice to the Client, as if the primary liability for any money owing was the Guarantors’ own. Further, Neighbourhood will have the right to proceed against the Guarantors notwithstanding any other rights it may have in relation to the recovery of the amounts hereby guaranteed.
(f)	clause 7.1:
The Guarantors authorise Neighbourhood to give time or any other indulgence or consideration to the Client in respect of compliance with its obligations to Neighbourhood, even if giving time or any other indulgence or consideration has the effect of increasing the Guarantor’s liability under this Guarantee and indemnity.
(g)	clause 7.2: 
The Guarantors agree that this Guarantee and Indemnity will not be avoided, released or affected by Neighbourhood making any variation or alteration in the terms of its Agreement(s) with the Client, even if such variation or alteration has the effect of increasing the Guarantors’ liability under this guarantee and indemnity. 
[17]	The Document History records, relevantly, the following:
“Neighbourhood Service Level Agreement – Storylines” History
Document created by Neighbourhood Co ([redacted])
2019-08-22 – 8:12:02 AM GMT – IP address [redacted]
Document emailed to Shannon Lee ([redacted]) for signature
2019-08-22 – 8:18:48 AM GMT
Emailed viewed by Shannon Lee ([redacted])
2019-08-22 – 8:33 AM GMT – IP address [redacted]
Document e-signed by Shannon Lee ([redacted])
Signature Date: 2019-08-23 – 3:38:50 AM GMT – Time Source: server – IP address: [redacted] 
Document emailed to Alister Punton ([redacted]) for signature
2019-08-23 – 3:38:52 AM GMT
Email viewed by Alister Punton ([redacted])
2019-08-23 – 3:39:17 AM GT - IP address: [redacted]
Document e-signed by Alister Punton ([redacted])
Signature date: 2019-08-23 – 3:59:48 AM GMT – Time Source: server – IP address: [redacted]
Signed document emailed to Neighbourhoods Co ([redacted]), Alister Punton ([redacted]) and Shannon Lee ([redacted])
2019-08-23 – 3:59:48 AM GMT
[18]	The 13 September email reads, relevantly, as follows:
Hi Alister,
As per our conversation today please see the below terms for the payment schedule, please confirm these dates.
First Instalment
Issue date: 22 August 2019
Payment Dates: (RAIDINV-0992_$2,000 payment – Friday 13 September
Remaining amount to be paid by 27th September of $6,000
Second Instalment
Issue date: 22nd September 2019 - $8,000.00
Full payment required by: 6th October 2019 - $8,000
Third Instalment
Issue date: 22nd October - $8,000
Full payment required by: 6th November 2019 - $8,000.
[19]	The response of Mr Punton to the 13 September email is contained in his email of 15 September 2019 which reads, relevantly: 
Hi Trav
Yes, that is fine.
Cheers
The Response
[20]	Mr Punton filed a Response on 26 November 2019 (‘the Response’). It seeks the ‘revocation’ of the claim and gives the following reason:
See attached documentation outlining all the issues surrounding this matter. All of which show the NBH and Trav White were NOT able to complete these works at all.
[21]	Attached to the Response are several pages setting out a litany of alleged defects in the performance of the services by Neighbourhood.
[22]	Another document included in the attachments to the Response is headed ‘Response to their claim’ and reads as follows:
Response to their claim
1. 	Waiting on investor money – This is not and was not the case, Investors were not willing to part with money for non-performance on your part, this was made abundantly clear to you MANY times. As I discussed with you all you needed to do was to get the invoicing part working in Proposify (which required you do (sic) check in and complete with Igor on that last Saturday (28th Sep) and we would’ve been all good. You refused and went tools down leaving us with nothing working, nothing.
2. 	Incomplete works stopped - regardless of when it was stopped it was not setup (sic) correctly, see everything below.
	a. In engaging with your company and moving to Hubspot we have:
		i. Lost the ability to report on revenues and future earnings
		ii. Ability to provide a payment process.
		iii. Ability to track calls (fixed now).
[23]	Another section follows, headed ‘My Comments’, and states:
2. 	The agreement
a. 	I never signed any personal guarantee, this was mentioned to Trav right back at the start. All I signed was 1 page as a witness on page 2, the digital document filler they were using at the time (I think it was adobe) auto-populated my …signatures on to the other pages.
b. 	It’s not a valid contract as I haven’t signed or initialled any of the pages.
What services were to be provided by Neighbourhood under the Contract?
[24]	The descriptions of the services to be provided by Neighbourhood under the Contract, as may be found in the Contract documents, are replete with jargon, and many of them appear devoid of any real meaning. The services are described in clause 4 of the SLA and clause 1.20 of the terms and conditions by reference to a schedule ‘2’. There is no schedule 2 contained in any of the documents submitted by Neighbourhood. The only schedule which describes the services is the RSS. I therefore construe the reference to Schedule 2 as a reference to the RSS. The services are described in the RSS as ‘Hubspot Onboarding’. I consider this term describes the primary services to be performed. I consider that Neighbourhood was also obliged to provide what might be termed ancillary services according to clauses 1.20 and 23.1.2 to 23.1.7 of the terms and conditions.
[25]	‘Hubspot’ is referred to in clause 19.1 of the terms and conditions as falling into a category of ‘marketing services, platforms and APIs [not defined].’ 
[26]	I have not located a definition of ‘onboarding’ which would describe what was to be performed by way of services. There is no definition of ‘onboarding’ in the Oxford Australian Dictionary or Macquarie Dictionary and an internet search of the term indicates that it refers to the induction of a new employee. I consider the terms ‘Hubspot’ and ‘onboarding’ individually and together are patently obscure in that they are intrinsically of doubtful meaning. Accordingly I consider I may have resort to extrinsic circumstances in order to ascertain the meaning of ‘Hubspot Onboarding’.  
[27]	It appears from material filed by Neighbourhood, including the document titled ‘Platform Implementation Partner’, that Neighbourhood employs the use of CRM (Customer Relationship Management) software known as ‘Hubspot’. According to Mr White, on 14 May 2019 Mr Punton approached Neighbourhood about implementing Hubspot for his business Storylines, as he was not happy with his current CRM system. The task which was required was the implementation of Hubspot and ‘migrating’ of data from the existing CRM to Hubspot. This is consistent with the information in the Platform Information Partner document. I consider that this is the service which is described by the term ‘Hubspot Onboarding.’
Timeline of events
[28]	My assessment of the evidence is that the following critical events occurred:
(a)	the first invoice RAIDINV-0992 was issued to Storylines on 22 August 2019 for the amount of $8,000;
(b)	the execution of the SLA by Mr Lee (via electronic signature) occurred on 23 August 2019;
(c)	the execution of the Guarantee (or purported execution) by Mr Punton occurred via electronic signature on 23 August 2019;
(d)	as at 4 September 2019 no payment had been made;
(e)	an email was sent by Neighbourhood to Mr Punton on 4 September 2019 advising him that the first invoice was overdue;
(f)	a revised schedule of payments (‘schedule of payments’) was agreed by the 13 September email and Mr Punton’s response on 15 September 2019, which called for an immediate payment of $2,000 and for further payments, the next payment being due on 27 September 2019 for $6,000;
(g)	on or about 16 September 2019, a payment of $2,000 was made by Storylines;
(h)	despite evidence that Storylines had expressed concerns about the Neighbourhood’s performance of the services, on 20 September 2019 a feedback survey was sent to Mr Punton and Mr Lee, giving them the opportunity to rate Neighbourhood’s service by a mark out of 10 – Mr Lee gave a rating of 8 out of 10;
(i)	on 23 September 2019, invoice RAIDINV-1013 for $8,800 was sent to Storylines, requiring payment by 7 October 2019;
(j)	no funds were received on 27 September 2019 as had been agreed;
(k)	on 28 September 2019, an email was sent from Neighbourhood’s Accounts team that a ‘hold’ had been placed on the account, as the agreement was not kept by Mr Punton;
(l)	in a phone call between Mr White and Mr Lee on 1 October 2019, Mr Lee was advised by Mr White that the account would need to be placed on hold until funds were paid, after which Neighbourhood would continue with the project;
(m)	prior to 9.41am on 2 October 2019, Mr Lee and Mr Punton removed all staff members from the Hubspot portal, which meant that Neighbourhood was unable to do any work;
(n)	at 9.41am on 2 October 2019, Mr White sent an email to Mr Punton and Mr Lee, which reads:
Hi gents
Just following up on the progress of the payment for the storylines account?
Please note that the second instalment as agreed to by Alister is due on the 6th October, which is this coming Sunday.
I can see that all staff members have been removed from the Hubspot portal, I really hope this is resolved amicably so we can complete the set up of your Hubspot portal.
(o)	no response was received and a further email was sent by Mr White to Mr Punton and Mr Lee on 3 October 2019. It reads:
Hi gents
Can you please give me an update on the outstanding invoices with Neighbourhood.
If I don’t hear from you by Friday 4th October 5.00pm, I will assume you have no interest in completing the project nor paying which will result in a default of your agreement.
I have attached a copy of the signed agreement with Neighbourhood and yourselves personally.
I hope to hear from you to resolve this. 
(p)	on 4 October 2019, in response to Mr White’s email, Mr Lee sent an email to Mr White stating: 
Hi Trav
Attached is my detailed response, I Have CC Nick from HubSpot as I asked them to mediate this.
(q)	on 9 October 2019, Neighbourhood’s solicitors, Shand Taylor, issued three letters:
(i)	the first is a letter of demand from Neighbourhood to Storylines demanding the sum of $15,600, and which states:
This correspondence constitutes a notice in writing served upon Storyline in accordance with clause 14.1.2 specifying the default namely, the failure to pay the amounts referred to above under the Agreement.
(ii)	the second and third are letters to Mr Punton and Mr Lee, respectively, making a demand of $15,600.00 under the Guarantee;
(r)	on 16 October 2019, the Application was filed;
(s)	on 23 October 2019, a further invoice RAIDINV-1028 for $8,800 was issued to Storylines, requiring payment by 6 November 2019.
Preliminary matters
Who or what is Storylines?
[29]	No ACN or ABN was inserted in the Contract documents or Guarantee to identify Storylines as a legal entity. Neither Mr White nor Ms Brace could assist with identifying the legal entity with which Neighbourhood contracted. None of the material filed assisted with this question. I find this unusual, but it may be something that would not necessarily occur to a non-lawyer.
[30]	Under section 28(3)(c) of the QCAT Act, the Tribunal may inform itself in any way it considers appropriate.  An internet search of the term ‘Storylines Inc’ produced a link to a site: www.storylines.com. A search of that site revealed a company registered in Delaware, United States of America. Mr Punton is listed on the website as CEO (Chief Executive Officer), and Mr Shannon is listed as COO (Chief Operating Officer). It appears that Storylines owns or will own a ship, containing various ‘residences’ available for purchase, and which is marketed to potential customers as a ‘home at sea’.  That is consistent with the evidence of Mr White at the hearing. Invoices were addressed to Storylines at an address in Fort Lauderdale, Florida. I consider it reasonable to infer that Storylines is a company and that it is registered in the United States of America. 
[31]	However, as this action is a claim on a personal guarantee against a person resident in Queensland, I do not consider that the incorporation status of Storylines affects the potential liability of Mr Punton. Further, the Contract is governed by Queensland law: clause 29.1 of the terms and conditions provides that the ‘Agreement’ is governed by the laws of Queensland, and the laws of the Commonwealth which are in force in Queensland.
Jurisdiction
[32]	The claim under the Guarantee for indemnity for specific amounts payable under a contract is properly described as a ‘debt or liquidated demand’, and given the amount claimed does not exceed $25,000, the claim is within the meaning of ‘minor civil dispute’ in Schedule 3 of the QCAT Act.  I turn now to a consideration of clause 1.1 of the Guarantee, which provides that the parties submit to the exclusive jurisdiction of the ‘Courts of Queensland’. ‘Courts’ is not defined. Does ‘Courts’, on its proper interpretation, exclude the Tribunal?
[33]	The Oxford Australian Dictionary defines ‘court’ to include ‘an assembly of judges or other persons acting as a tribunal in civil and criminal cases’. The Macquarie Dictionary defines ‘court’ to include ‘a place where justice is administered’ and ‘a judicial tribunal duly constituted for the hearing and determination of cases’.
[34]	In Electricity Generation Corporation v Woodside Energy Ltd, French CJ, Hayne, Crennan and Kiefel JJ stated:
The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd (in rec), unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”. (footnotes omitted)
[35]	In my view the Guarantee is a commercial contract and should be given a businesslike interpretation. Given the total value of the Contract is $24,000, and within the monetary jurisdiction of the Tribunal, it would be a ‘working commercial inconvenience’ if the parties were forced to proceed in the Magistrates (or other) Court. Interpreting the word ‘Courts’ to include the Tribunal for this reason is also consistent with the dictionary definitions cited above. I therefore conclude that the word ‘Courts’ should in this case be construed to include the Tribunal.
[36]	If I am wrong in this conclusion, I consider the decision of the Queensland Court of Appeal in Owen v Menzies establishes that the Tribunal is a Queensland court.
[37]	Accordingly, I consider that the Tribunal has jurisdiction to determine this matter.
Proceeding against Mr Punton without Mr Lee
[38]	I was not satisfied at the hearing that service had been effected on Mr Lee. Mr White advised the Tribunal at the hearing that Neighbourhood withdrew its claim against Mr Lee. Accordingly, I ordered that Mr Lee be removed as a respondent.
[39]	Clause 3.3 of the Guarantee imposes joint and several liability on Mr Punton and permits Neighbourhood to proceed against him alone. I do not consider there is any obstacle to proceeding against Mr Punton without Mr Lee.
When did the Contract come into effect? 
[40]	In the absence of any contrary assertion by Mr Punton, and given the record of signature in the Document History, I find that the SLA was signed electronically by Mr Lee on behalf of Storylines on 23 August 2019. This evidenced the acceptance of Neighbourhood’s offer to contract on the basis of the Contract documents (which offer was communicated by Neighbourhood via email of 22 August 2019, according to the Document History). According to the ‘Commencement Date’ of 23 August 2019 referred to in the Schedule, the Contract came into effect on that date. 
Was the Guarantee signed by Mr Punton?
[41]	The Guarantee contains a signature of Mr Punton in the execution block of the Guarantee, identifying him as a Guarantor. In his response document, Mr Punton says that he did not sign the document and that his signature was auto-populated by Neighbourhood. No other challenge was made to the enforceability of validity of the Guarantee.
[42]	Mr White says in his statement that ‘On the 23rd of August…at 2:00pm Alister Punton signed the Service Level Agreement’. Mr White does not state that Mr Punton signed the Guarantee. However, the Guarantee formed part of the same document as the SLA, at page 12. The Document History indicates that Mr Punton electronically signed the SLA on 23 August 2019. 
[43]	What Mr Punton alleges, in effect, is that the signature was applied fraudulently. Applying the principle in Briginshaw v Briginshaw, I would require more probative evidence before accepting that assertion. Mr Punton’s evidence could not be tested and could not be accorded the requisite probative value to establish fraud on the part of Neighbourhood.
[44]	I am satisfied on balance that Mr Punton did execute the Guarantee on 23 August 2019 and it is enforceable against him.
What is the liability under the Guarantee?
[45]	For the purpose of determining liability under the Guarantee, which is determined by clauses 2.1 and 3.1 of the Guarantee, I must determine what amounts were ‘due and payable’ or what money was ‘owing’ under the Contract at the date of the Application. I consider these terms are synonymous and interpret them to refer to the existence of an accrued obligation on the part of Storylines to pay money to Neighbourhood.
Was the right to payment conditional on the satisfactory performance of the services?
[46]	Given the assertion by Mr Punton that Neighbourhood’s performance of the services was unsatisfactory, an anterior question is whether payment was conditional upon satisfactory performance of the services. There is no express term to that effect. Further, the provision in clause 16.1 of the terms and conditions prohibiting set-off strongly indicates that payment was not conditional upon satisfactory performance. This is also indicated by clause 14.2 of the terms and conditions which provides ‘A statement rendered by Raiders to the Client will be proof of the amount due.’ 
[47]	I do not consider that the oblique statement in clause 4 of the SLA ‘Neighbourhood work to a schedule of hours and services that is agreed every month with the Client and ensure the full digital requirements of the Client are met with our standard of expertise and priority’ is of sufficient force to make payment conditional on satisfactory performance, particularly given the contractual indications to the contrary.
[48]	The only other consideration is whether the following statement on the invoices has any effect on that position.
Please advise us of any dispute on the invoice within fourteen (14) days of the invoice date, otherwise, agrees (sic) to accept all the charges on the invoice.
[49]	Although under clause 8.1 of the terms and conditions, Neighbourhood was entitled to unilaterally vary the terms of trade, I do not consider this statement, objectively construed, means that Neighbourhood’s entitlement to payment was to be conditional upon satisfactory performance of the services, or on the absence of a dispute raised within the 14 day period. 
[50]	Accordingly, I consider that the obligation on Storylines to make payment to Neighbourhood was not conditional on the satisfactory performance of the services. In any event, as I discuss below, I consider the evidence adduced is not sufficient to establish that Neighbourhood’s performance of the services was deficient.
What were the payment terms?
[51]	The Contract documents comprising the terms and conditions and RSS are to some extent inconsistent with respect to payment terms. The Schedule stipulates the commencement date of the Contract as 23 August 2019. The RSS provides for payment on the 15th of each month, with payment due 15 days after invoices. 
[52]	However, clause 8.1 of the terms and conditions provides for payment terms of 14 days from the date of an invoice ‘or such other period as nominated by T (sic) Neighbourhood herein’. 
[53]	Regardless of whether payment of invoices was to occur within 14 or 15 days (or some other period) after invoices were issued, according to the Schedule and RSS, the first invoice (RAIDINV-0992) should not have been issued before 15 September 2019.
[54]	As mentioned, clause 8.1 allows Neighbourhood to unilaterally vary the terms of trade. Neighbourhood was therefore permitted to vary the payment terms set out in the RSS. I consider it did that by the 13 September email, by which the schedule of payments was prescribed. 
[55]	So long as the Contract was in force between the parties, payment would fall due according to that schedule.
[56]	Alternatively, by agreeing to the schedule of payments by his email of 15 September 2019, I consider Mr Punton is estopped from denying its effectiveness – I infer that Neighbourhood relied on that agreement in continuing to perform work under the Contract in the circumstance that Neighbourhood had not been paid.
What amounts were ‘due and payable’ under the Contract and thus recoverable under the Guarantee? 
[57]	In my view, an amount may only be said to have become ‘due and payable’ and recoverable under the Guarantee if the liability of Storylines to make payment to Neighbourhood had accrued under the terms of the Contract. 
[58]	If a contract unequivocally provides for payment at a specified time prior to, during or after performance, a debt accrues at that specified time. I must however consider whether the right to payment according to the Contract is conditional upon completion of the ‘Hubspot Onboarding’, given that that work was not completed. There is no express provision to that effect. Nor is there a provision which suggests that payment was to be on account only or subject to adjustment on completion of the services. Further, clause 3 of the SLA and the Schedule describes the amounts specified as a ‘retained monthly fee’. That indicates that Storylines’ obligation to make monthly payments during the 3 month term was not conditional on completion of the Hubspot onboarding - a monthly ‘fee’ was payable during the period in which Neighbourhood was ‘retained’, albeit that period was 3 months (and according to the Schedule, with a future term ‘TBA’ - to be advised). The heading to clause 3 of the SLA reads ‘Amount of Contract’ yet the total amount is not specified there as a lump sum, only the amount per month is specified. The amounts are not described in the Contract as instalments of the Contract amount, and no provision is made for amounts paid to be repayable to Storylines in the event of termination.
[59]	On the other hand, the work to be performed, according to the Contract, was not divided into stages. As I have found, it involved, primarily, the implementation of Hubspot and the migration of data for that purpose within a 3 month timeframe. Further, the RSS did give a ‘total’ cost of $24,000. The 13 September email referred to the payments as ‘instalments’, but I consider this should be discounted as evidence of both subjective intention and conduct subsequent to the Contract coming into effect.
[60]	On balance, I consider effect must be given to the way in which the payment obligation has been drafted, and the tenor of the Contract. I conclude that Storylines’ obligation to pay Neighbourhood the ‘retained monthly fee’ according to the schedule of payments was not conditional upon the completion of the Hubspot Onboarding. In my view, the Contract was not an ‘entire’ contract (which would affect the right to sue for payment where the work was not completed).
What was the ‘retained monthly fee’?
[61]	There is a question as to whether the retained monthly fee was $8,000 or $8,000 plus GST. The Contract documents are inconsistent in specifying the amount of the retained monthly fee:
(a)	clause 3 of the SLA identifies the fee as $8,000 per month;
(b)	the RSS identifies the fee as $8,000 + GST per month, but specifies a total cost of $24,000 for the three month term; and
(c)	the Schedule identifies the fee as $8,000 + GST.
[62]	The invoices are also inconsistent in the amounts invoiced: the first invoice RAIDINV-0992 was for the amount of $8,000, but the second and third invoices were for the amounts of $8,800. However, I consider the parties’ subsequent conduct ought not to be taken into account in construing the Contract.
[63]	Although none of the Contract documents specify an order of precedence, and I must construe the Contract as a whole, I consider that primary emphasis should be given to the figure specified in the SLA, which is consistent with the total cost provided for in the RSS. Giving a businesslike interpretation to the Contract, it would be unusual for the opening document of the Contract, which was signed, to have understated the true amount which Storylines was required to pay. I consider that clause 3 of the SLA was ‘calculated to carry into effect the real intention of the parties.’ I conclude that the retained monthly fee was $8,000.
[64]	Alternatively, I consider that Neighbourhood is estopped from asserting that the retained monthly fee is $8,000 plus GST, given (what I consider to be) a representation by Neighbourhood contained in the 13 September email that the fees due under the Contract were $8,000 per month, and an inference which I have drawn as to Storylines’ reliance on that representation in accepting the proposed schedule of payments (by Mr Punton’s email of 15 September 2019). 
Was the Contract terminated?
[65]	The next question is whether the Contract was terminated by either party, thus releasing the parties from further performance of the Contract and preventing the accrual of rights to payment.
[66]	There are in my view two possible ways of defining, in legal terms, what transpired between 28 September 2019 and 16 October 2019, when the Application was filed:
(a)	in suspending the performance of the services on 28 September 2019 (by placing the account on ‘hold’), and communicating this to Storylines, Neighbourhood engaged in conduct entitling Storylines to terminate the Contract, and subsequently Storylines terminated the Contract by its conduct in removing its staff from the Hubspot portal on 2 October 2019; or
(b)	despite the suspension of work, the Contract remained operative as at the date the Application was filed.
[67]	If the Contract was terminated on 2 October 2019, a debt only accrued in respect of the first invoice RAIDINV-0992 at the time of termination, and it is only that debt which is recoverable under the Guarantee. A debt would not have accrued with respect to the second and third payments, which were due (according to the schedule of payments) on 6 October 2019 and 6 November 2019 respectively. 
[68]	If the Contract remained in force at the date of the Application, a debt would have accrued and could be recovered under the Guarantee in respect of the first and second payments but not the third payment which did not become due until after the Application was filed.
Entitlement of Storylines to terminate the Contract 
[69]	Storylines may have been entitled to terminate the Contract if Neighbourhood repudiated (or renunciated) the Contract by engaging in conduct which evinced an unwillingness or an inability to render substantial performance of the Contract. The conduct must have evinced an intention on the part of Neighbourhood to no longer to be bound by the Contract or to fulfil it only in a manner substantially inconsistent with its obligations. The test is whether the conduct of Neighbourhood was such as to convey to a reasonable person, in the situation of Storylines, renunciation of the Contract as a whole or of a fundamental obligation under it.
[70]	In my view, in the context of non-payment by Storylines according to an agreed schedule, the suspension of the work by Neighbourhood, its advice by the email of 28 September 2019 that the account had been placed on ‘hold’ due to non-payment, and the telephone call from Mr White to Mr Lee to that effect, was not sufficient to convey to a reasonable person in Storylines’ position that Neighbourhood was unwilling to complete the Contract. In the ‘My comments’ section of the Response, Mr Punton asserts:
Trav White refused to put in the last hour that was required (on a Saturday) that would’ve made the system work at least in some fashion. Instead he didn’t show up, didn’t answer calls that day and refused to finish that section of the work.
[71]	The Contract does not require Neighbourhood to be available to work on weekends. I do not consider that the refusal to do work on a Saturday, either alone or in conjunction with the suspension and communication of that suspension amounts to a renunciation by Neighbourhood of its obligations under the Contract.
[72]	Another circumstance which at common law may have justified termination is a breach by Neighbourhood of the obligation in clause 23.1.1 of the terms and conditions to perform its obligations with ‘diligence’, in that it suspended the performance of the services. It would need to be established either the obligation as to diligence was an ‘essential’ term, or, if it were a non-essential term, that the breach of it was sufficiently serious to justify termination.
[73]	However I consider that Neighbourhood is protected from such a claim by clause 18.2 of the terms and conditions (and possibly also clause 22.3) (set out above). In this case, the failure to perform the services may be said to be caused directly or indirectly by Storylines in failing to make payment according to the schedule of payments, and the effect of clause 18.2 is that Neighbourhood is not liable or responsible for that failure.
[74]	Further or alternatively, by its failure to pay the balance of invoice RAIDINV-0992 according to the schedule of payments, Storylines demonstrated it was not ready and willing to perform its obligations under the Contract. In those circumstances it was not entitled to terminate the Contract. 
[75]	For these reasons I consider that Storylines was precluded from treating the suspension of the services as a breach of the Contract justifying termination.
[76]	The only other circumstance which could justify termination by Storylines is a breach by Neighbourhood of the obligation in clause 23.1.1 to perform its obligations with skill and care. On 21 September 2019, Mr Lee gave Neighbourhood a rating of 8 out of 10. On the other hand, an email of 20 September 2019 from Mr White to Mr Punton and Mr Lee indicates one or both of them had expressed concerns about Neighbourhood’s work on that date. Further, Storylines compiled a long list of deficiencies with the work, which Mr White explained as ‘work in progress’. By 28 September 2019, Neighbourhood was just over five weeks into a three month contract. The weight which may be attributed to Mr Punton’s evidence of unsatisfactory performance is also minimal given his failure to attend the hearing. On balance, I consider Storylines has failed to establish a breach of contract on the part of Neighbourhood, and certainly none which would justify termination according to the principles set out in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd. 
[77]	It should finally be mentioned that Storylines was not entitled to terminate the Contract under clause 25 of the terms and conditions: the procedural and substantive requirements of clauses 25.3 and 25.4 had not been met.
Purported termination of the Contract by Storylines 
[78]	A wrongful termination will amount to words or conduct constituting a clear indication of an absence of readiness or willingness on the part of a party to perform. I consider that the removal of staff from ‘Hubspot’ by Storylines by 2 October 2019, thereby preventing any further work by Neighbourhood, amounted to a wrongful termination of the Contract. As such, it was ineffective to bring the Contract to an end, and amounted to a repudiation of the Contract.
[79]	Mr White’s evidence at the hearing was that the services were not terminated until 4 October 2019. I consider that to be a subjective assessment. In circumstances where, as I have found, Neighbourhood had not repudiated the Contract, and was not in breach of the Contract, the purported termination by Storylines was ineffective.
[80]	Repudiation does not automatically terminate a contract – there must be an election on the part of the non-repudiating party to terminate the contract. The requirements of election involve unequivocal words or conduct evincing an election to terminate the performance of the contract.
[81]	In my view, the letter of demand sent to Storylines on 9 October 2019 did not amount to an election to terminate – it was expressed as a notice under clause 14.1.2 of the terms and conditions, which is a step preliminary to the occurrence of an event of default, and not one which could be construed as a notice of termination under clause 25. I do not consider any other act of Neighbourhood amounted to an election to terminate.
[82]	There being no evidence of any other means of termination, I conclude that at the time of filing the Application on 16 October 2019, the Contract was still in force.
What had become due as at the date of the Application?
[83]	According to the foregoing analysis, by the time the Application was lodged on 16 October 2019, the following amounts had become due according to the schedule of payments:
(a)	the balance of invoice RAIDINV-0992 ($6,000) which fell due for payment on 27 September 2019; and
(b)	the second payment of $8,000, which fell due for payment on 6 October 2019. 
[84]	I consider that a claim with respect to the final payment, which was due to be paid on 6 November 2019, after the Application was filed, could only have been sought by an amended application. The claim made for $24,000 was, at the date of filing, misconceived.  Storylines’ obligation to pay the third payment had not accrued by the date of filing, was not recoverable under the Guarantee at that point, and could not be the subject of a claim. 
[85]	I note that the invoices for the second and third payments were for $8,800 each. I do not consider that this affects the liability of Storylines, which was to make the payments specified in the schedule of payments.
Assessment of liability
[86]	For the reasons set out above, I consider the amount of $14,000 was due to Neighbourhood by Storylines as at the date of the Application and is recoverable against Mr Punton under clause 2.1 of the Guarantee. There is no requirement in the Guarantee for a demand to be made prior to commencing proceedings. In any event a demand was made by Shand Taylor on 9 October 2019 for the higher amount of $15,600. 
Costs
[87]	No claim for consequential losses which might also have been recoverable under the Guarantee was made, save for the request for the filing fee, service fee and search fee in the Application. The filing fee, service fee and search fee are recoverable in respect of a minor debt claim under section 102 of the QCAT Act and rule 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), but only if the interests of justice require it. No receipts for the search fee or service fee were filed. The amount which I have found to be recoverable by Neighbourhood is considerably less than what is claimed. I consider on balance the default position provided for in section 100 of the QCAT Act should apply, and that the parties should bear their own costs.
[88]	Accordingly, I make the following orders:
1.	Alister Punton is to pay to the Applicant the amount of $14,000.
2.	There is no order as to costs.