MOGS Pty Ltd v Ennova Consulting Pty Ltd
[2013] QCATA 45
•25 February 2013
| CITATION: | MOGS Pty Ltd v Ennova Consulting Pty Ltd [2013] QCATA 45 |
| PARTIES: | MOGS Pty Ltd (Applicant/Appellant) |
| v | |
| Ennova Consulting Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL298-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 25 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – whether grounds for leave to appeal Australian Consumer Law, s 18 Chambers v Jobling (1986) 7 NSWLR 1 |
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 (QCAT Act).
REASONS FOR DECISION
MOGS Pty Ltd engaged Ennova Consulting Pty Ltd to develop software. The written contract stated an hourly rate of $85.00. Ennova rendered four invoices, which MOGS paid. The last invoice charged at an hourly rate of $125.00 per hour. Ennova rendered two further invoices. MOGS did not pay them and, in October 2011, it terminated the contract. Ennova withdrew the unpaid invoices and rendered a new, lower, invoice. MOGS did not pay that invoice so Ennova filed a claim in the Tribunal. An Adjudicator ordered MOGS pay Ennova the amount of the invoice plus interest and costs.
MOGS wants to appeal the Tribunal order. It says that the learned Adjudicator erred in finding that Ennova had rendered services the subject of the invoice. It says that there was no agreement for the increase in rate from $85.00 to $125.00. It says that the learned Adjudicator did not consider whether Ennova’s conduct in increasing the rate amounted to economic duress, misrepresentation or a breach of s 18 of the Australian Consumer Law. It says that there was no consideration given for the increased rate; that the learned Adjudicator had no basis to infer that MOGS accepted Ennova’s invoices; and that the learned Adjudicator erred in finding that MOGS admitted liability for the unpaid invoice.
Because this is an appeal from a minor civil dispute, MOGS must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if MOGS shows a reasonably arguable case of error and a reasonable prospect that it will obtain substantive relief if the error is corrected.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[2] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[3]
[2] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[3] Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The learned Adjudicator found that the email string[4] between the parties was evidence of work performed[5]. The email string does support the learned Adjudicator’s view and I reject MOGS’ submission that there was no evidence to support the claim for work done.
[4] Exhibit 2.
[5] Reasons for decision page 17.
MOGS points out, as it did at the hearing, that clause 14 of the agreement states that the agreement shall not be varied except by agreement in writing signed by the parties. An agreement in writing does not have to be one piece of paper. Ennova rendered an invoice, in writing, that showed an increase in the rate. MOGS paid the invoice without complaint. The learned Adjudicator found that this was sufficient to vary the rate and I find no reason to take a different view.
Although MOGS now says that the learned Adjudicator did not consider whether Ennova’s conduct in increasing the rate amounted to economic duress, misrepresentation or a breach of s 18 of the Australian Consumer Law, it did not argue that point at the hearing and it did not produce any evidence to support such a conclusion. Even now, MOGS does not point to any particular conduct that might support such a finding. There is no substance in this ground of appeal.
MOGS says, correctly, that the learned Adjudicator did not identify the consideration provided for the increase in rate. MOGS’ argument is just another way of saying that the learned Adjudicator should not have found that it had agreed to the new rate. Ennova says that the work it was doing was no longer covered by the agreement; the scope, and the time required, had changed significantly so that it was, in effect, a new agreement. I agree with that proposition.
MOGS says that the learned Adjudicator had no basis for inferring that MOGS accepted Ennova’s invoices in advance of the work. MOGS did not complain about the value of the work. On the contrary, MOGS’ representatives sent a number of emails confirming an intention to pay the outstanding invoice, and never, at any stage, disputed the invoices. The learned Adjudicator found that there was enough evidence to find that MOGS accepted the invoices and I can find no compelling reason to disagree.
Finally, MOGS says that there was no evidence that it acknowledged the last invoice was due and owing. The learned Adjudicator found that Mr Gore’s email of 3 October 2011 did acknowledge the debt[6]. I agree with that conclusion. MOGS’ submissions on this point are without merit.
[6] Reasons for decision pages 18-9.
There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
0
3
0