[Home] [Databases] [WorldLII] [Search] [Feedback] Australian Capital Territory Civil and Administrative Tribunal

You are here: 

GARNAMA PTY LTD v NQ FITNESS PTY LTD (Civil Dispute) [2020] ACAT 83 (15 October 2020)

Last Updated: 15 October 2020

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARNAMA PTY LTD v NQ FITNESS PTY LTD (Civil Dispute) [2020] ACAT 83

XD 752/2019

Catchwords: CIVIL DISPUTE – licence agreement – geographic jurisdiction in civil matters – material part of the cause of action – whether tribunal has jurisdiction – whether any cause of action arises within the ACT – application dismissed

Legislation cited: Magistrates Court Act 1930 s 262

Tribunal: Senior Member S Lancken

Date of Orders: 15 October 2020

Date of Reasons for Decision: 15 October 2020

AUSTRALIAN CAPITAL TERRITORY

CIVIL & ADMINISTRATIVE TRIBUNAL XD 752/2019

BETWEEN:

GARNAMA PTY LTD

Applicant

AND:

NQ FITNESS PTY LTD

Respondent

TRIBUNAL: Senior Member S Lancken

DATE: 15 October 2020

ORDER

The Tribunal orders that:

1. The application is dismissed.

...................................

Senior Member S Lancken

REASONS FOR DECISION

1. The applicant claims from the respondent the sum of $3,740.35 for licence fees plus filing fee, search fee and interest.
2. The applicant’s business is located in the Australian Capital Territory.
3. The respondent conducted a business in Bungalow, Queensland.
4. The applicant says that the licence fees are owing under a licence agreement between the parties dated 29 February 2016. Under that agreement the applicant licensed to the respondent material such as videos, and other intellectual property that were to be used by the respondent to conduct fitness classes at the respondent’s business which was a gymnasium.
5. The applicant says that the respondent has not paid licence fees in the amount of the claim.
6. The respondent submits that the claim should be dismissed “for incorrect jurisdiction”, relevantly on the basis that:
   1. The respondent resides in Cairns North Queensland.
   2. The alleges services were provided in Cairns, North Queensland.
   3. That the alleged Agreement.....was signed in Cairns, North Queensland.
7. On 6 March 2020 I made directions that the parties make submissions as to the jurisdiction of the Tribunal by 20 March 2020 and that a determination on that issue be made on the papers.
8. The applicant argues that “...the granting of the licence and payment ...of the licence fees ...is the material part of the cause of action” and therefore that the ACT Civil and Administrative Tribunal (ACAT) has jurisdiction to determine the claim.
9. The parties agree that section 262 of the Magistrates Court Act 1930 determines the jurisdiction of the Tribunal in its civil jurisdiction. That section relevantly says (emphasis added):

262 Cause of action arising, or defendant resident, outside ACT

The Magistrates Court has jurisdiction to hear and decide a proceeding if—

.......

(b) both of the following apply, even though the defendant is not in the ACT:

(i) a material part of the cause of action in the proceeding arose in the ACT, even though part of the cause of action arose outside the ACT;

(ii) the claim is served on the defendant in Australia or an external territory.

10. The claim was properly served.
11. The issue in relation to jurisdiction is whether “a material part of the cause of action...arose in the ACT”.
12. It is not disputed that the use of the licence granted by the licence agreement occurred in Queensland.
13. The licence agreement limits the use of the material to a location and, even though that location is not stated in Schedule A of the licence agreement, it is obvious that the location intended by the parties is in Queensland being the location of the gymnasium operated by the respondent.
14. The licence was not, as the applicant alleges, granted in the Australian Capital Territory, it was granted in Queensland when the respondent signed the licence agreement. In any event, the granting of a licence is not a material part of the cause of action.
15. Payment under the licence agreement was to be made by direct deposit, that is the respondent would authorise its bank to pay into the account of the applicant the licence fees. Presumably the respondent made such authorisation in Queensland and in any event the location of the bank of the applicant is hardly a material part of the cause of action.
16. The location of the applicant does not give the ACAT jurisdiction in this matter, rather the location of the cause of action.
17. The cause of action involves a contract, the provision of “services” or the granting of rights and a breach of that contract (failure to pay).
18. The contract was entered into by the respondent in Queensland.
19. The provision of services and the granting of rights occurred in Queensland and the licence agreement specifically prevents the use of the licence other than in the location of the gymnasium operated by the respondent.
20. The business of the respondent, where the intellectual property the subject of the licence was accessed and used, was in Queensland.
21. The respondent failed to pay in Queensland.
22. There is no material part of the cause of action that arose in the Australian Capital Territory.
23. If follows that the ACAT does not have jurisdiction to make the Orders sought by the applicant and the application should be dismissed.

...................................

Senior Member S Lancken

HEARING DETAILS