May v NSR Soccer Australia
[2014] QCATA 194
•2 July 2014
| CITATION: | May v NSR Soccer Australia [2014] QCATA 194 |
| PARTIES: | John May (Applicant/Appellant) |
| v | |
| NSR Soccer Australia (Respondent) |
| APPLICATION NUMBER: | APL147-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 2 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where parent signed agreement for agency to source sports scholarships or contracts with USA colleges – where agency information later told clients to contact college coaches directly – where parent claimed total failure of consideration – where tribunal dismissed parent’s claim – where parent claims misleading and deceptive conduct – whether grounds for leave to appeal Australian Consumer Law ss 3(3)(b), 61 Dearman v Dearman (1908) 7 CLR 549 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 24 June 2011, Mr May signed an agreement with NSR Soccer Australia Pty Ltd under which NSR would provide services to assist Mr May’s son William obtain a sports scholarship with a college in the USA.
Mr May paid NSR $3,054. In August 2012 Mr May received an email from NSR detailing how William should contact coaches in the USA to promote himself. Mr May saw this as a new requirement and a breach of his agreement with NSR. He terminated the contract with NSR by letter of 9 April 2013 and asked for his money back. He was unsuccessful. He filed an application in the minor civil disputes jurisdiction of the tribunal claiming the full amount he paid. An Adjudicator dismissed Mr May’s claim.
Mr May wants to appeal that decision. He says that NSR Soccer Australia was not a registered business name when he signed the agreement and the payments taken from his credit card were taken when NSR was not a registered business name. He says that NSR’s conduct was false, misleading, deceptive and unconscionable. He says that the NSR contract breached the provisions of the Australian Consumer Law. He says that NSR’s response to the tribunal was inappropriate, incomplete and misleading.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3] per Keane JA.
Mr May signed an agreement with NSR Soccer Australia Pty Ltd. The agreement nominates an ACN. The ASIC material Mr May filed shows that, as at February 2014, this ACN identifies a company called Maisano Management Pty Ltd. That is not to say that, as at June 2011, the ACN did not refer to NSR Soccer Australia Pty Ltd. Without an historical search which shows that the company did not exist as at June 2011, or that it was wrongly named in the agreement, Mr May’s submissions about the registered business name go nowhere.
Mr May approached his claim before the tribunal as one of total failure of consideration. There was limited discussion about misleading conduct during the hearing but none of that discussion directly referred to the legal concept of misleading and deceptive conduct. Mr May did refer the learned Adjudicator to a booklet that had information about the success rate of applications, the availability of scholarships, and financial aid[3]. The best case for Mr May is his comment to the learned Adjudicator[4] that the booklet makes no mention of having to do the legwork in terms of negotiating with the colleges and then he posed the question ‘…why would you sign up with this program?’.
[3]Transcript page 1-22, lines 11 – 15.
[4]Transcript page 1-26, lines 7 – 14.
Mr Maisano, a director of, and the representative for, NSR had to leave the hearing part way through the hearing[5]. He did not have the opportunity to respond directly to Mr May’s submissions about misleading conduct. The tribunal has an obligation to observe the rules of natural justice[6]. Natural justice would not be served by allowing Mr May to argue a point on appeal that was not argued in the proceeding below.
[5]Transcript page 1-23, lines 1 – 46.
[6]QCAT Act s 28(3)(a).
The learned Adjudicator applied that principle in the hearing. He looked for misleading language in NSR’s material[7] but then noted that, in all of his complaints to NSR, Mr May did not refer to the scholarships and did not refer to misrepresentation[8]. During the hearing, Mr May conceded that he had no basis for a claim for misrepresentation.[9]
[7]Transcript page 1-38, lines 38 – 39.
[8]Transcript page 1-39, lines 6 – 32.
[9]Transcript page 1-40, lines 16 – 22.
The learned Adjudicator found[10] that none of the information in the booklet about scholarships and success rate was incorporated into terms of the contract. Mr May conceded[11] that, when he read through the booklet later, it did not say that a scholarship was on offer. He conceded that it was not a critical part of the contract[12]. Mr May’s discussion with the learned Adjudicator from that point reverted to a discussion about whether Mr May received value for money. The learned Adjudicator found that there was not enough evidence before him to support a finding of misleading and deceptive conduct. I have no reason to come to a different view.
[10]Transcript page 1-22, lines 28 – 37.
[11]Transcript page 1-32, lines 6 – 7.
[12]Transcript page 1-32, lines 24 – 27.
Mr May did not argue the Australian Consumer Law before the learned Adjudicator. He now refers the appeals tribunal to the implied guarantee that a supply of services has to be fit for the purpose.[13]
[13]Australian Consumer Law s 61.
That guarantee is only implied into consumer contracts. A “consumer” is defined[14] as a person who acquires services which ‘were of a kind ordinarily acquired for personal, domestic or household use or consumption’. Brokering a contract for a sports scholarship is not, in my view, a service for personal, domestic or household use. It is a commercial transaction. The Australian Consumer Law does not apply and there is no implied guarantee.
[14]Australian Consumer Law s 3(3)(b).
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[15] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[16]
[15]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[16]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
Mr May complains that NSR did not provide any real or substantial evidence as to how it complied with the terms of the contract. Mr May was the applicant so he had the onus of proof. It therefore fell to him to prove that he did not receive value for money. The learned Adjudicator approached the task in a slightly different way, asking whether Mr May did receive value for money[17]. He concluded ‘…I just don’t have enough to box on with’.[18]I apprehend that comment to be a finding that Mr May had not satisfied the onus of proof. The evidence can support that finding and there is nothing in the transcript to persuade me that the learned Adjudicator should have taken a different view.
[17]Transcript page 1-32, lines 40 – 41.
[18]Transcript page 1-41, line 25.
There is no reasonably arguable case that the learned Adjudicator was in error. Leave to appeal should be refused.
0
4
0