Mollison v Aro Software Pty Ltd
[2020] QCATA 184
•11 November 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Mollison v Aro Software Pty Ltd [2020] QCATA 184
PARTIES: ANGELO DANIEL MOLLISON (appellant)
v
ARO SOFTWARE PTY LTD (respondent)
APPLICATION NO/S:
APL282-19
ORIGINATING APPLICATION NO/S:
MCDO 50081/18 (Maroochydore)
MATTER TYPE:
Appeals
DELIVERED ON:
11 November 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
Leave to appeal against the decision made on 27 September 2018 in MCDO 50081/18 (Maroochydore) is refused. This means that the appeal fails.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN NO APPEAL LIES – leave to appeal – where appellant sought leave to appeal against the tribunal’s decision about the recovery of a debt arising from website development work – whether any reasonably arguable grounds of appeal
REPRESENTATION:
Appellants:
Self-represented
Respondent:
Self-represented (by a director)
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
This appeal is from a decision of a panel of two justices of the peace in which they ordered Angelo Mollison to pay to Aro Software Pty Ltd the sum of $2,961.50 within 14 days.
Aro said in its claim to the tribunal that on 17 August 2017 Mr Mollison commissioned Aro to develop a website for him in return for 12 monthly payments of $198. Aro said that it developed the website and provided it to Mr Mollison but that he only made two payments. Aro claimed the remaining 10 payments totalling $1,980 and an additional $761.66 for debt collection fees. Aro also asked for interest and the formal costs which are permitted for such a claim.
In his formal written response to the claim Mr Mollison said there was no agreement at all, that the claim was ‘false’ and the business services were provided ‘unethically’. His defence did not go into any further detail. On paper therefore, his defence was very obscure.
The dispute went to a hearing, and the Appeal Tribunal has obtained a copy of the transcript of the hearing from which it can be seen what happened.
At the hearing, Mr Rubulis, director of Aro, produced what he said was a print out of the order form on Aro’s website that Mr Mollison had completed when he commissioned the website.[1] He said that the online process included accepting the terms and conditions, which included agreeing to make 12 monthly payments of $198 and paying debt collection fees should there be a default. The order form included many details which would only have been known to Mr Mollison himself, such as a nickname that he used, and his bank details so that a direct debit could be set up. He said Aro prepared the website and gave Mr Mollison access to it and training.[2]
[1]Transcript 1-4 line 35, 1-5 line 25, 1-8 line 20, 1-11 line 1
[2]Transcript 1-12 line 25, 1-23 line 40.
Mr Mollison denied having completed the online form. He said that his contact with Aro was all on the telephone with a consultant which is how Aro got his details: any online form therefore must have completed by the consultant.[3] He said there were also a number of emails which were not before the tribunal.[4] He agreed that he had made only two payments but said that he was never told that the contract required him to make 12 monthly payments, but instead he had been told he could cancel at any time.[5] He said he cancelled when he found he was not receiving ‘proper services’ and not getting the technical support that he needed.[6]
[3]Transcript 1-4 line 40, 1-8 line 35, 1-9 line 33, 1-10 line 13, 1-13 line 42, 1-14 line 35, 1-15 line 30, 1-17 line 7, 1-18 line 21, 1-19 line 43, 1-23 line 24, 1-24 line 15.
[4]Transcript 1-24 line 25.
[5]Transcript 1-7 line 2, 1-8 line 39, 1-14 line 47.
[6]Transcript 1-7 line 5, 1-15 line 39.
In reply, Mr Rubulis said that customers were required to use the online form and this was never completed by an Aro consultant as Mr Mollison claimed. Instead, access to the online form was by a special code which was given to the prospective customer by email.[7]
[7]Transcript 1-5 line 27, 1-10 line 36, 1-21 line 11.
The panel was therefore faced with two quite opposing cases. The panel decided to accept what was said by Mr Rubulis. On that basis the panel decided that Mr Mollison had indeed completed the online form and in turn had agreed to the terms and conditions, which included having to make the 12 monthly payments and pay the debt collection fees in default.
The appeal
In the appeal, Mr Mollison says that Aro should have been required by the tribunal to produce better evidence. This might be a reference to what he was asking for in the hearing, which was a recording of the telephone conversation that he had had with Aro. This was discussed at the hearing and Mr Rubulis pointed out that Aro did not record telephone conversations, so no recording was available.[8]
[8]Transcript 1-9 line 18, 1-14 line 4, 1-19 line 42.
Or it might be a reference to an email that Aro said was sent to Mr Mollison asking him to complete the online form and which provided a link to the form and the special code. The panel did ask for this email, but it was not available at the hearing.[9]
[9]Transcript 1-20 line 30.
Mr Mollison also said in the appeal that the tribunal should have found that he was entitled to stop payments at any time.
Mr Mollison’s submissions in support of the appeal largely reiterated the points made at the hearing itself.[10]
[10]Email of 11 March 2020, accepted as submissions in support of the appeal in the Appeal Tribunal directions of 30 June 2020.
At the same time as bringing this appeal Mr Mollison made an application to the Appeal Tribunal. His application was for there to be evidence about the pre-contract negotiations, including all emails, and showing why it was not possible for an Aro consultant to have completed the online form using details given by telephone, and for a record of the telephone conversation evidencing the entering into of a contract. The Appeal Tribunal directed that this application should be treated as an application for leave to rely on fresh evidence,[11] and also directed that for the application to be heard, Mr Mollison would have to make submissions as to why the fresh evidence was not available to the tribunal below, why it was important and why it should be accepted.[12]
[11]Directions of 26 November 2019.
[12]Direction 10 of 26 November 2019, restated in direction 6 of 30 June 2020.
In an email of 11 March 2020 however, Mr Mollison said he had no fresh evidence to put forward. Despite this, on 19 June 2020 he submitted a number of documents. There were no submissions about these documents in accordance with the requirements of the Appeal Tribunal. In any case, looking through the documents their value is unclear. None of them are dated which does not assist. Many of them seem to have been created after the hearing and so are completely irrelevant to the appeal. The remainder simply confirm that Aro was developing a website for Mr Mollison, that he provided material for the website by email and seemingly that the website was ‘live’ as Aro said. Since there is nothing of probative value in this material and the submissions required by the Appeal Tribunal have not been provided, I cannot accept this fresh evidence.
In this appeal therefore Mr Mollison seeks to say that the panel made the wrong decision but cannot point to any error other than he disagrees with the decision which was made. The panel had to decide one way or the other. On the evidence before the panel, the decision could have gone either way. It was certainly open to the panel to accept what Mr Rubulis said rather than what Mr Mollison said.
As for the points made that the panel should have asked for better evidence, what Mr Mollison is really saying here is that the evidence provided by Aro was insufficient to prove its case and so the claim should have been dismissed. But this overlooks the fact that the tribunal was obliged to deal with the matter in a speedy and efficient way. Usually this means deciding the matter on the evidence provided on the day of the hearing (or preferably prior to the hearing). Aro produced a print out of the online form, and its director gave evidence on oath about the usual procedures requiring the customer to complete this form. By itself this was sufficient to prove the case.
Conclusion in the appeal
In an appeal of this sort there has to be an arguable ground of appeal before leave to appeal can be given. Here the grounds of appeal are not arguable. I refuse leave to appeal. This means that the appeal fails.
0
0
0