Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gonzalez-Brien v My Million Dollar Funnels Pty Ltd [2022] NSWCATAP 58 Hearing dates: 11 February 2022 Date of orders: 2 March 2022 Decision date: 02 March 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Britton, Deputy President Decision: Appeal dismissed Catchwords: APPEAL- consumer claim- no error of law- whether decision against the weight of evidence. Legislation Cited: Fair Trading Act 1987 (NSW) Civil & Administrative Tribunal Act 2013 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: H Gonzalez-Brien (Appellant) My Million Dollar Funnels Pty Ltd (Respondent) Representation: Appellant (Self Represented) E Donati (Respondent) File Number(s): 2021/00275275 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 10 September 2021 Before: J Bartrop, General Member File Number(s): GEN 21/21837 REASONS FOR DECISION Background 1. This is an appeal from a decision made in the Consumer & Commercial Division of the Tribunal published on 10 September 2021. The Appellant was the applicant and the Appellant's application was dismissed. The Appellant appeals from that dismissal. The Tribunal was exercising its jurisdiction to determine consumer claims as provided for in the Fair Trading Act, 1987 (NSW). 2. The Appellant had engaged the Respondent to provide marketing services, the details of which we will explain later. The Appellant paid the Respondent $5,000 and sought an order from the Tribunal that that sum be refunded. 3. To further understand the background to the dispute we summarise the decision under appeal (which we will describe as "the Decision") in the following paragraphs. The Decision Under Appeal 1. The Appellant started a new business, designed to assist women after divorce. On 21 May 2020 the Appellant and Respondent entered into an agreement, the purpose of which was to require the Respondent to assist the Appellant with marketing services. A deposit of $1,000 was paid and subsequently the balance of $4,000 was paid. 2. The services to be provided by the Respondent are described in a written agreement as follows: "Funnel for the virtual events and marketing on FB IG for five events done for you. Email marketing and copywriting done for you. 4 x one on one coaching calls with Reggie Batts + 1 introduction by Reggie at your first live event. WhatsApp and Email access to Ethan Donati!" 1. An invoice was issued by the Respondent to the Appellant on 25 May 2020 largely corresponding to the above, but in these terms: 2. "Done For You Funnel, Ads Copywriting, marketing Management for 5 Events, 4 x calls with Reggie Batts, 1 x introduction at event by Reggie." 3. At [10] of its reasons for decision, the Tribunal found that the parties had agreed that the Respondent would provide the services described in the invoice. The Appellant did not challenge that finding in the appeal. 4. In early September 2020 the Appellant chose 17 October 2020 for the first event. The Tribunal found that the Respondent advertised the Appellant on Facebook and Instagram [16]. 5. The Tribunal noted that the Appellant accepted that people did click on the advertisement in her Facebook and Instagram pages and that the Respondent emailed those people about the upcoming event [17]. 6. The first event was held on 17 October 2020 and only two people attended [18]. 7. The Appellant complained by email on 31 October 2020 that the Respondent had not complied with consumer law guarantees because only two people attended her online meeting, and the Appellant requested a refund [19]. 8. The Respondent replied on 31 October 2020 refuting the Appellant's complaints and asked the Appellant to pick a date for the next event [20]. 9. By email dated 1 November 2020 the Appellant stated that she was not interested in using the Respondent and requested a refund [21]. 10. The Respondent's evidence, through Mr Donati was that everything required to be done by the Respondent had been done [23] and, in particular, that a funnel had been provided which still exists [25]. 11. The Tribunal found that the Respondent had complied with the terms of the agreement and that there was no breach of consumer guarantees [27]. In particular, the Tribunal found that a funnel was established, marketing emails sent and other services provided [29]. Notice of Appeal 1. On or about 27 September 2021 the Appellant lodged a Notice of Appeal. The grounds of appeal do not identify any error of law. Rather the grounds identify alleged misinterpretations of evidence by the Tribunal. The Appellant also contended that the Respondent did not provide any written evidence and merely gave oral evidence via Mr Donati. 2. The Appellant alleged that a funnel had not been supplied. The Respondent gave evidence that a link to a funnel had been provided. The Appellant contended that the Respondent was required to supply a funnel run on a web page. The Appellant also contended that no "click funnel account" was provided. 3. The grounds of appeal further asserted that the Respondent failed to provide all marketing services it had agreed to provide, including texting potential customers. 4. A further complaint was that the Respondent only conducted a marketing campaign on one day in late September, as opposed to over 21 days pursuant to a 21-day campaign. 5. Referring to parts of the Decision, the grounds of appeal dispute several findings of fact. Reply 1. The Respondent has filed a Reply which may be summarised as follows: 1. A funnel was provided, as is evidenced by the fact that 100 "leads" were obtained. The Appellant wanted the Respondent to host her funnel on the Respondent's account. She had decided not to host the funnel on her own account. 2. The Respondent says that the evidence disclosed that the Respondent had conducted a marketing campaign and 100 leads were identified. 3. In response to the Appellant's claim that emails were sent only on one particular day, the Respondent says that many emails were sent from 28 September to the date of the event (17 October). 4. The Respondent was prepared to provide the remaining four events or campaigns but the Appellant terminated the agreement on 1 November. Appellant's submissions 1. The Appellant's written and oral submissions largely concentrated on the funnel. The Appellant submitted that a funnel was agreed to be provided on the Appellant's own website but that all the Appellant received from the Respondent was a link to a funnel controlled by the Respondent. The Appellant submitted that the funnel provided by the Respondent precluded her from having access to potential customers who had responded to the campaign. During the hearing of the appeal the Appellant retracted this assertion and conceded that the email addresses of customers were made available to her but via the Respondent's MailChimp account. The Appellant contended that the Respondent had agreed to provide those addresses directly and not through a third party. The Respondent disputes that claim. 2. The Appellant further submitted that all of the advertising occurred on a single day and not over multiple days, as had been agreed. The evidence of this was said to be a report in a document provided by the Respondent in the proceedings (marked as page 25). That document appears to show the date of 30 September 2020 on a number of lines. Mr Donatis contended that that document merely recorded the date of the last significant edit of the wording of emails (being 30 September) and does not support the proposition that that marketing occurred on a single day. He claimed that the campaign occurred over a number of days. 3. In addition, the Appellant raised in the appeal that the sum of $33 had been debited from her Facebook account on three occasions, without explanation. The Appellant was not able to establish that this claim was raised by the Appellant before the Tribunal at first instance. It therefore cannot be raised on the appeal. Respondent's submissions 1. The Respondent's submissions were to the effect that a funnel was provided to the Appellant but it was a funnel controlled and managed by the Respondent with the Appellant nevertheless having access to emails from interested potential customers. Mr Donati provided typed extracts of the oral evidence obtained from the sound recording of the hearing Those extracts reveal that at first instance the Appellant acknowledged that the email addresses were given to the Appellant, that advertising was conducted on Facebook and Instagram, and that a funnel was provided by the Respondent, which the Appellant accessed by a link. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal may be made as of right on a question of law (see s 80 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act). In addition, appeals may be made with leave (ie. with permission of the Appeal Panel) on the grounds set out in clause 12 of schedule 4 of the NCAT Act. Clause 12 provides: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). …. 1. The Appellant does not contend that Tribunal made an error of law. Rather, the Appellant challenges several finding of fact made by the Tribunal, which she contends was the result of the Tribunal misinterpreting the evidence. Therefore she requires leave to appeal. The Appellant did not identify which of subparagraphs (a), (b) or (c) in cl 12 of schedule 4 she relied on but in our view subparagraph (b) appears to be most applicable. That is, it appears that the Appellant submits that the Tribunal made findings of fact against the weight of the evidence. 2. In our view the Appellant has failed to establish that the Tribunal's findings of fact were against the weight of evidence. The findings of fact made were open to the Tribunal on the available evidence. 3. The issue of the funnel was the subject of lengthy discussion during the hearing of the appeal. Mr Donati took us to extracts from the transcript of the hearing. The Appellant did not submit that the extracts were incomplete or otherwise misleading. One portion records that the Appellant acknowledged that she had had access to a link to a funnel. A fair reading of the agreement does not support the proposition, that the Respondent had agreed to place a funnel on the Appellant's website rather than, as occurred, place a link to a funnel on her website. 4. As stated above the Appellant contended that the Respondent had advertised on a single day rather than over approximately 20 days. The document relied upon (referred to at [12] as bearing the page number 25) does not in our view support the Appellant's contention. In particular that document does not support the contention that the Tribunal's finding at [29], that the Respondent provided the agreed services prior to the termination of the agreement by the Appellant, was a finding that was against the weight of evidence. 5. We are not satisfied that the Decision was against the weight of evidence, or was not fair and equitable. Accordingly it is not necessary to address whether the Appellant may have suffered a substantial miscarriage of justice. 6. The appeal must be dismissed. Order 1. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2022