Medical & Aesthetic Training Academy Pty Ltd v Kim
[2024] QCATA 102
•11 September 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Medical & Aesthetic Training Academy Pty Ltd v Kim [2024] QCATA 102
PARTIES:
MEDICAL & AESTHETIC TRAINING ACADEMY PTY LTD
(applicant)
v
GEUN-AH KIM (respondent)
APPLICATION NO:
APL214-23
ORIGINATING APPLICATION NO:
MCDO1313-22MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
11 September 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
The application for leave to appeal is dismissed
CATCHWORDS:
MINOR CIVIL DISPUTE – CONSUMER DISPUTE – where fees paid to entity dealing in ‘facial aesthetics’ – where tuition not provided as agreed – where multiple attempts to communicate with entity for refund – where refund refused – where total failure of consideration – where entity failed to appear at primary hearing – where default judgement entered – where judgment debtor seeks leave to appeal – where evidence offered on hearing of application for leave not fresh evidence – where argument on appeal not presented at trial – where application for leave dismissed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 50, s 142
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73
Coulton v Holcombe (1986) 162 CLR 1
D’Orta-Ebenaike v Victoria Legal Aid (2005) 223 CLR 1Drew v Bundaberg Regional Council [2011] QCA 359
Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330Lawless v The Queen (1979) 142 CLR 659
Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207
Park v Brothers (2005) 222 ALR 421
Pearce v Western Australia [2014] WASCA 156
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257
R v SDT [2022] QCA 159
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
REASONS FOR DECISION
Introduction
This dispute is effectively an action for repayment of moneys paid for a service that allegedly was never performed, and for which consideration has totally failed.
The applicant for leave to appeal (‘MATA’) describes itself on its website as a company incorporated in England & Wales, with its registered office at 1 Chancery Business Centre, Ruislip, UK. It professes to be ‘a leading Medical and Aesthetics Academy for healthcare professionals and led by Cosmetic and Plastic Surgeons’.
For Australian clients it offers inter alia Botox and Dermal Fillers for nurses. ‘We are the original creators of the Level 7 Diploma in Facial Aesthetics’.
For nurses and others keen to enjoy its educational services it is a mobile if not elusive target. Apart from its English address, it was registered in Australia in 2017 with offices at 428 George Street Sydney and in Melbourne. By November 2022 its address for service was in Surry Hills, Sydney. In July 2023 it placed itself in Castle Hill NSW, and in August 2023 it was back at Surry Hills.[1]
[1] Letter from its servant or agent Ian Duncan to QCAT undated, received 29 August 2023.
The agreement
In June 2022 the original applicant (‘Geun-Ah’) paid $3,871 to MATA for a two-day course to be held to be held on 27-28 August 2022. But the course never materialised.
Geun-Ah’s statement of claim is as follows:[2]
I made a $3871 payment for my 2 day injectables foundation course on June 25 [2022] I was advised that I would receive a receipt and further information regarding my course. I even sent my nursing registration. After not receiving any emails about the course nor receipt for my payment I made a new enquiry through emails on WhatsApp in July. After no follow-up from MATA , I emailed and contacted them via WhatsApp again, asking for my receipt and advised that I had not heard from the course administrator using the ACCC formal complaint template. Then MATA asked for my name and advised once again that they would arrange my receipt and told me it would be sent soon. I emailed and kept chasing to receive any communication and my training on Aug 28-29. And then the course was cancelled on Aug 24. I asked for a refund on Aug 25, but no receipt and refund. After no communication from MATA since Sept 16, I lodged a complaint with the [Office of Fair Trading] on Sep 22. MATA didn’t respond to any communication attempts by the OFT. Subsequently I made a fraud report with the Australian cyber security centre on Oct 26 and I’m now lodging this application. I really hope the Tribunal sees why I am entitled to the orders I seek and help [sic] me receive what MATA has failed to provide.
[2] As set out in her application to QCAT filed on 10 November 2022.
MATA proves elusive
On 24 August 2022, after many unsuccessful attempts to establish communication with MATA, Geun-Ah received a message from the company to the effect that the course arranged for 27-28 August was cancelled, and it suggested that Geun-Ah nominate an alternative time. Subsequently Geun-Ah discovered that no booking at the nominated venue had been made. Despite repeated requests no receipt was ever issued. By this stage Geun-Ah understandably distrusted MATA, and demanded a refund of her $3,871. No refund was forthcoming, so Geun-Ah instituted these proceedings on 10 November 2022. MATA filed nothing in reply.
MATA does not appear
The trial took place on 28 June 2023. MATA did not appear, nor did it offer any explanation for its absence.
The adjudicator found that the application and notice of trial had been duly served, and that consideration for Geun-Ah’s payment had totally failed.[3] She proceeded to enter judgment for Geun-Ah in the amount of $4,001.70, including costs.[4]
[3] Transcript of hearing 28 June 2023 page 7 line 7.
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 50 (‘QCAT Act’).
Leave to appeal sought
On 6 July 2023 MATA filed the present application for leave to appeal.[5] It alleges somewhat obscurely that:
Geun-Ah Kim requested the refund after the 14 day cooling off period. She signed up for a qualification which involves online study and practical days. The practical days make up a small percentage of the training. [She] has been provided access to our online learning.
[She] had agreed to pay her remaining balance on her account over 10 months. She has not done this, this is against our terms of service. We do not have to provide any further training until this resolved and as a result we need to make sure that the payment plan is in place, so she can continue her study. She has no grounds to ask for a refund.
[5] Leave was required by s 142(3) of the QCAT Act.
MATA’s application for leave is supported by a letter to QCAT, undated but received on 29 August 2023.[6] In substance it merely re-asserts the allegations made in the application of 24 August 2023.
[6] Letter MATA to QCAT signed by ‘Ian Duncan’, undated.
Not fresh evidence
If that letter is intended to be new or fresh evidence[7] it is inadmissible for the reasons set out in paragraph 5(a) of the Directions issued on 27 July 2023:
If either party seeks to rely upon evidence or a document that was not before the Tribunal below … the application shall include submissions about (i) why the additional evidenced was available in the Tribunal below; (ii) why the additional evidence is important; and (iii) why the additional evidence should be accepted.
[7] MATA tendered no evidence at the trial.
This direction follows well-settled authority providing that new evidence, to be admissible on appeal, must not have been available, with reasonable diligence, at the time of the trial.[8] Clearly the evidence offered does not satisfy that requirement.
[8]Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73; Pearce v Western Australia [2014] WASCA 156; R v SDT [2022] QCA 159; Lawless v The Queen (1979) 142 CLR 659 at 674-676.
Point not taken below
Alternatively, because the arguments indicated in the application for leave were not presented to the primary tribunal, they cannot be presented now. A reason for this rule is that it is unfair to confront a party with a submission that he could not be expected to anticipate. Other reasons concern the delay and expense caused by late changes in a party’s case, and the need for finality in litigation.[9]
It is fundamental to the due administration of justice that the substantial issues … are ordinarily settled at the trial. If it were not so the main arena … would move from the court of first instance to the appellate court, tending to reduce the proceedings [there] … to little more than a preliminary skirmish.[10]
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which … he failed to put during the hearing, when he has had an opportunity to do so.[11]
[9]D’Orta-Ebenaike v Victoria Legal Aid (2005) 223 CLR 1; Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 at [16]; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217; Park v Brothers (2005) 222 ALR 421 at [47].
[10]Coulton v Holcombe (1986) 162 CLR 1 at [9]; see also Aon Risk Services Australia v Australian National University (2009) 239 CLR 175.
[11] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483.
Conclusion
An application for leave to appeal is not an opportunity to re-run the trial. Its sole function is to see whether the decision under appeal discloses a reasonably arguable point of legal error.[12] There is no prospect of showing such error in the subject decision. The application for leave must be dismissed.
[12]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257; Drew v Bundaberg Regional Council [2011] QCA 359; Felton & Anor v Raine and Horne Real Estate [2011] QCATA 330.
ORDER
The application for leave to appeal is dismissed.
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