Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Palmieri v Think Creative & Print Pty Ltd [2023] NSWCATAP 272 Hearing dates: 28 September 2023 Date of orders: 10 October 2023 Decision date: 10 October 2023 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President D Goldstein, Senior Member Decision: Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEALS – challenge to findings concerning formation of contract, terms and whether contract breach – whether respondent failed to comply with the Australian Consumer Law (NSW) concerning consumer guarantees – whether leave to appeal should be granted on matters other than those raising a question of law Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW Fair Trading Act 1987 (NSW) Cases Cited: Al Daouk v Mr Pine t/a Furnco Bankstown [2015] NSWCATAP 111 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Collins v Urban [2014] NSWCATAP 17 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Texts Cited: Nil Category: Principal judgment Parties: Robert Palmieri (Appellant) Think Creative & Print Pty Ltd (Respondent) Representation: Appellant (Self-represented) Kelly Goodin, Managing Director (Respondent) File Number(s): 2023/00229310 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 21 June 2023 Before: M Deane, Senior Member File Number(s): GEN 22/41382 reasons for decision Introduction 1. On 14 September 2022, the appellant, as applicant, commenced proceedings GEN 22/41382 against the respondent in the Consumer and Commercial Division of this Tribunal. 2. The appellant claimed from the respondent the sum of $11,742.50, being amounts which the appellant had paid the respondent for the provision of services in connection with the creation of a website and various online media material. He also sought an order that he be relieved from paying an amount of $18,000 which he said had been billed by the respondent as additional fees for the services. In his application, he said that the services to be provided had only been partly completed, he had only "received access to some free social media accounts that were not completed" and that he had otherwise been locked out of the website that was being developed. 3. The proceedings were brought under the Fair Trading Act 1987 (NSW) (FTA). The proceedings were heard by the Tribunal on 21 March 2023. On 21 June 2023 the Tribunal dismissed the appellant's application. The Tribunal published reasons for decision (Reasons). 4. In addition, pursuant to section 79O(b) of the FTA, the Tribunal ordered the appellant to pay the respondent an amount of $6686.90. Paragraph 46 of the Reasons sets out how this amount was calculated. 5. The issues considered and resolved by the Tribunal are set out at [57]-[58] of the reasons. Notice of Appeal and hearing of the appeal 1. On 19 July 2023, the appellant filed a Notice of Appeal. 2. Despite the respondent contending to the contrary, the appeal was filed in time, being within the period of 28 days after notice of the decision was received by the appellant. 3. The grounds of appeal in section 5B of the Notice of Appeal can be summarised as follows: 1. While there was a verbal contract, any written terms and conditions were not signed and accepted by the appellant; 2. there was "no evidence that an approval was made for the final stage of development [of the website] nor is there any evidence that [the respondent] offered any of the quoted and paid for services regarding the website". 3. In so far as the written terms and conditions apply, the appellant says the respondent is also bound by those terms and conditions and should have been held accountable. In this regard the appellant says the services provided were not fit for purpose or of a satisfactory state. 4. The decision of the Tribunal was made "with no evidence of a website or any quoted services being provided by the respondent". The respondent "admitted that the contract had not been finished as there was no website". 1. The appellant sought leave to appeal. The appellant contended the decision was not fair and equitable and was against the weight of evidence. As to the first matter the appellant said: A fully functioning mobile responsive e-commerce website with full content management system was never launched on any URL nor was one approved to do so meaning there was no finished website. None of the quoted and listed functions of the website were provided. Evidence of two concept designs of the website was not provided by [the respondent] nor any evidence of approval of a final design of the website from the client [appellant]. A final design of the website was not approved for launch and no evidence was provided by [the respondent] to state otherwise. No evidence of 5 posts on each social page was provided by [the respondent] as only 2 posts were ever completed nor were they backdated 6 months. None of the invoices or quotes were ever signed or formally agreed to. … … there has been no evidence that an approval was made for the final stage of development nor is there any evidence that [the respondent] offered any of the quoted and paid for services regarding the website. 1. The respondent filed a Reply to Appeal. In short, the respondent challenged all the contentions of the appellant. The respondent said it had done all work required and that the website was in a state to "go live" subject to payment of its final invoice in accordance with the terms and conditions. 2. The hearing of the appeal occurred on 28 September 2023. Both parties appeared (by AVL in the case of the respondent and by telephone in the case of the appellant). The appellant represented himself. The respondent was represented by Ms Goodin, its managing director, pursuant to leave previously given by the Appeal Panel. 3. At the hearing, we noted that we had not been provided with all the evidence from the proceedings at first instance. In this regard, the material provided to the Appeal Panel did not include all documents originally submitted by the appellant (which the Tribunal referred to in its Reasons using "AB" reference numbers) nor were we provided with a transcript of the hearing. We were provided with the respondent's bundle from the original hearing. 4. In respect of new evidence, in the case of the appellant this related to his financial circumstances. This was not relevant to the appeal and is rejected. 5. The respondent also sought to rely on new evidence concerning the state of the website at the time it claimed payment for its final invoices. This evidence is rejected because it was evidence reasonably available at the time the proceedings under appeal were being dealt with and should have been provided by the respondent at that time: Al Daouk v Mr Pine t/a Furnco Bankstown [2015] NSWCATAP 111. 6. The appellant was asked if he wanted to apply to adjourn the proceedings to obtain the missing evidence. He indicated he wished to proceed and did not require an adjournment. Accordingly we decided to proceed on the basis of the material which had been provided. 7. However, during written submissions, the appellant referred to a document provided by a company referred to as WDA. This document had originally been provided to the Tribunal in the proceedings at first instance. The appellant said that this document provided some evidence concerning the state of the website and other deliverables in his contract with the respondent. WDA had apparently constructed an alternative website for the appellant which, the appellant contended, was for a substantially lower price. 8. With the agreement of the respondent, and because oral submissions had been made concerning this document, we permitted a copy to be sent to us by email after the hearing of the appeal. A copy of the document we subsequently received will be marked Exhibit A in place with the appeal papers. 9. The parties made oral submissions concerning their respective positions. As necessary we will refer to their submissions below. Consideration 1. There is a right of appeal on a question of law. Otherwise leave to appeal is required: s 80(2)(b) Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. Leave to appeal may only be granted if the Tribunal is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision is not fair and equitable, against the weight of evidence or there was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with: Sch 4 cl 12(1) NCAT Act. Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable to the grant of leave. 3. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel said at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. 1. In the present case, two questions of law appear to arise. 2. First is the question of whether, in the circumstances of this case, a signature was required in order to give rise to a contract on terms of the written documents provided by the respondent to the appellant for the carrying out of the works. This is a question of construing the written terms. 3. The second question of law which appears to be raised by the Notice of Appeal is whether there was no evidence to support the conclusion that the respondent had performed its obligations and that there was a website completed in accordance with the contract: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138. 4. Otherwise, the challenges to the Tribunal's decision are matters requiring leave. 5. There is no dispute that a contract had been entered into for the provision of the services. 6. The Tribunal found there was a "contract in four stages and that each stage had been completed". These were contained in the respondent's quotations. The Tribunal found that all four stages had been completed and that what had been promised had been provided. In doing so, the Tribunal preferred the evidence of the respondent, including Ms Goodin: Reasons at [83]. The Tribunal rejected claims under the Australian Consumer Law (NSW) (ACL). 7. The appellant submitted to the Appeal Panel that he never agreed to various written terms and conditions. 8. The evidence concerning communications between the parties about what was proposed, the scope of work and what was delivered is contained in the respondent's bundle in this appeal (RB). 9. Commencing at RB 1, is the initial proposal made April 9, 2021. In that proposal the respondent describes itself as: … a full-service design, communications, branding, and digital marketing agency with extensive capabilities and considerable experience in strategic brand strategy, brand identity development, product launches, digital marketing strategy and implementation (social, paid search, email marketing and SEO), websites, creative campaigns and complete print management". 1. The respondent's bundle includes a scope of work for each of the four phases the respondent says was agreed, being quotations and information concerning what would be done and charged, invoices which were rendered and amounts which were paid. 2. The substance of the appellant's submission on appeal is that he never signed any documents to accept the terms and conditions. This submission appeared to be based on the appellant's view that he would not be bound in contract to what these documents said unless they had been signed. 3. This view is incorrect. A contract requires offer, acceptance and consideration. A contract can be oral or in writing, or partly oral or partly in writing. It can also be inferred where there is a failure or refusal of a party to execute a written contract, acceptance being conveyed by accepting what is offered: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 at 528E, 530A, 531F and 534D-535. 4. The contract in the present case was partly oral and partly in writing. Despite the absence of a signature, there is adequate evidence of performance and acceptance of the services by the appellant. This evidence includes paying for some of the invoices rendered (a matter not in dispute having regard to the appellant's claim for a refund) and the appellant providing instructions in the course of the project being delivered: see e.g. email dated 13 April 2022 RB 85. We were not otherwise referred to any evidence to indicate the appellant rejected the terms of any of the proposals for each of the stages of work. 5. This is not a case where being bound by the terms of a written contract required signature. While the quotations had a place for signature and dating, there was no condition making a signature mandatory in order to form a contract on those terms. While the quotation contemplated acceptance by signing, this was only one way by which acceptance could be conveyed by the appellant to the respondent. 6. As we indicated above, the evidence in this case was that the parties had performed their respective obligations under the contract. In the case of the appellant this included paying some of the amounts due for the different stages of work. The communications between the parties and the subject matter thereto and the conduct of the parties can only lead to the conclusion that what the respondent had offered in its written documents had been accepted by the appellant. 7. Accordingly, we accept the respondent's submission that what it was required to do under the terms of the contract was contained in the documents provided in the respondent's bundle, that work to be in four phases. 8. The next question is whether those services were performed in accordance with the terms of the contract. 9. The appellant submits there is no evidence that this occurred. 10. The various screenshots and other documents found in the respondent's bundle recording the materials developed for the appellant as contemplated by the contract provide some evidence of work done and services delivered. Consequently, the "no evidence" ground of appeal cannot succeed. 11. Lastly, the appellant contends that 1. various social posts had not been created as contemplated by the contract; 2. the evidence does not establish that the works were completed in the sense that the website was in a position to "go live" or that he had approved the website; 3. the site was not fit for purpose as that expression is used in s 60 of the Australian Consumer Law (NSW). In this regard the appellant said the site had not been completed in its entirety. Reference was made to various posts on social pages, the need for his approval of the final website and the fact he did not have the password to access the website. 1. These are challenges that require leave to appeal. 2. In Collins at [65] and following the Appeal Panel set out the principles applicable to the grant of leave. At [77]-[79] the Appeal Panel said: 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. 1. Applying these principles, we are not satisfied leave should be granted. Our reasons are as follows: 1. An evaluation of whether the decision was against the weight of evidence requires a consideration of all relevant evidence upon which the Tribunal relied. We were not provided with all the evidence from the hearing, some of which was given orally. 2. There is evidence of instructions given and acceptance of the work by the appellant as the work progressed: eg RB 55, RB 56, RB 60.1RB 75-76, RB 85-86. 3. The evidence to which we have been referred by the parties, particularly that contained in the respondent's bundle, is cogent evidence demonstrating that the works were performed by the respondent and that the website was ready to "go live". In this regard it is sufficient to refer to the email dated 11 May 2022 (RB 88-9). Having previously communicated to the appellant about the need to connect any payment system for use in the proposed online shopping platform to his bank account, the respondent said in RB 89: … Have you decided whether you would like to hide the shop on the website until you have set up Stripe so we can make your website live. It would be good to launch this so Google can start ranking your site in their search results. Let me know how you are progressing with this. 1. The fact the appellant's response to this email was a demand requiring reimbursement of monies paid (see RB 91) or that he made a complaint to NSW Fair Trading (RB92) does not establish the respondent breached its contract or failed to provide that which was promised 2. As to the issue of posts to social media, the evidence demonstrates that required posts were made and various web-links created: see e.g. RB 49 and RB 60.2 and following. 3. The Tribunal preferred the evidence of Ms Goodin concerning the state of the site, including oral evidence, and accepted that the appellant had failed to pay the final invoices as required. 1. In these circumstances it could not be concluded that "the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said the conclusion was not one that a reasonable tribunal member could reach". To the contrary, the reasons of the Tribunal show that it examined the evidence, weighed up competing evidence, considered the evidence concerning the work actually performed and decided that the respondent had not contravened the ACL or failed to perform its obligations under its contract with the appellant. 2. Exhibit A, the letter from WDA, does not alter this view. The appellant relies on this letter which states "We feel charges any higher for such a simple project would be overpriced". However, a reading of the whole of the letter suggests that the work WDA were engaged to do was to create a website, not to provide a marketing strategy and advice concerning taking a commercial project to market as the respondent was engaged to do. That is, the services of WDA appeared limited to developing a website. 3. Consequently, the statement concerning unidentified services that might be "overpriced" provides no assistance in determining whether the contract has been performed by the respondent or whether the respondent is entitled to the payment of the balance due under the contract. 4. It follows that, to the extent leave to appeal is required, it should be refused. Orders 1. The Appeal Panel makes the following orders: 1. Leave to appeal is refused and the appeal is otherwise 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: 10 October 2023