Australia: Traps in fee recovery

Last Updated: 2 October 2019
Article by David Ford

Ben (not his real name) started at Christian Brothers College Adelaide in 2009. His mum signed the enrolment document. By 2018, the School was suing mum for almost $20,000 for unpaid tuition and related fees and debt recovery costs. Judgment was entered in the School's favour in early 2019 and mum sought unsuccessfully to have the judgment set aside. She tried again and failed. Basically, the magistrate did not think that she had an arguable defence. Mum then appealed to the Supreme Court of South Australia.

Through to the end of Year 9, at the end of 2015, Ben was a successful student and had a good relationship with his mum and stepfather. However, there was a dramatic change in 2016 while Ben was in Year 10. For a period, mum and her husband lost contact with Ben and mum blamed "interference" by the School and, in particular, a school counsellor for this. They then discovered that he was staying at a Baptist Church run facility but were unable to contact him. They knew that he was still attending the School but believed that his academic performance was declining.

Mum's evidence was that she had made it clear to School staff that she did not want Ben to remain at the School but wanted him to go elsewhere. She said that the School ignored her requests. She also said that the Deputy Principal had told her that she should not worry about finances for Ben "because now that he turns 16 he qualified for Centrelink benefits just like an university student." Later, the Principal wrote to mum and her husband saying "Whilst he remains at CBC we have been assisting him with food, clothing, school uniform and fees." Six months later, the Principal wrote saying that he had meant simply that the School had advanced money to cover these items and certainly had not underwritten Ben's school fees. Because of all this, mum refused to pay the tuition fees for the period following her request to terminate Ben's enrolment.

The terms of that enrolment were in issue. As noted above, mum entered into an enrolment contract with the School in 2009. The School contended that she was still a party to the same contract. However, in early 2017, the Business Manager sent a pro forma letter to all parents enclosing the 2017 fee invoice and noting that "all families must complete the School Fee Agreement form" and pay the fees if they wished their child's enrolment to continue. The same thing happened in early 2018. Mum neither signed the form nor paid the fees. She argued that her relationship with the School was one of annual contracts or renewals and that she did not agree to any contract or renewal in 2017 or 2018. The Court felt that the enrolment documents were not entirely clear and found, therefore, that it was at least arguable that the proper construction of the relationship between the School and mum was that of a series of separate annual contracts for each school year. While it was accepted that a parent's acceptance of the terms offered by a school could be inferred from the parent's conduct in sending their child to school each day, in this case there was an argument that mum had not sent Ben to school during the relevant period. Accordingly, the judgment in favour of the School was set aside.

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