Invenio Pty Ltd v Brad Jones Racing Pty Ltd [2015] NSWCATAP 165

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Invenio Pty Ltd v Brad Jones Racing Pty Ltd [2015] NSWCATAP 165 Hearing dates: 26 May 2015 Date of orders: 12 August 2015 Decision date: 12 August 2015 Jurisdiction: Appeal Panel Before: Mr L P Robberds QC Senior Member Ms K Rosser Senior Member Decision: Appeal allowed. Declaration made by Tribunal member on 5 November 2014 set aside. Each party to pay party's own costs. Catchwords: Contract – one party alleges it was unaware of a document referred to in the contract which imposed obligations on the parties – that document incorporated by signature of the contract Legislation Cited: Civil and Administrative Tribunal Act 2013 Consumer Claims Act 1998 Cases Cited: L'Estrange v F. Graucob Ltd [1934] 2 KB 394 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd 219 CLR 165 Category: Principal judgment Parties: Invenio Pty Ltd (Appellant) Brad Jones Racing Pty Ltd (Respondent) Representation: Counsel:

Solicitors: Johnson Lawyers Legal Practice Pty Ltd (Appellant) File Number(s): AP 15/05309 Publication restriction: No Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 5 November 2014 Before: A. A. Morris, Tribunal Member File Number(s): GEN 14/39284

REASONS FOR DECISION 1. On 5 August 2014 Brad Jones Racing Pty Ltd (BJR) lodged with the Tribunal an application for an order that it did not have to pay to Invenio Pty Ltd (Invenio) the sum of $14,385. This was in reality an application under s.8 (1) (d) of the Consumer Claims Act 1998, seeking an order declaring that a specified sum of money was not due and owing by BJR to Invenio. 2. After a contested hearing, the Tribunal made a declaration on 30 December 2014 that BJR was not obligated to make the payment sought. 3. On 3 February 2015 Invenio lodged with the Tribunal a notice of appeal against that declaration. Two of the many grounds of appeal were: 1. an alleged error of law in that the Tribunal member was said to have failed to afford procedural fairness to the appellant in that he allowed the respondent the opportunity to present physical evidence during the hearing not previously disclosed or shown to the appellant in which the appellant's representative could not observe or provide a response to, as they were heard by telephone; and 2. an alleged error of fact in that the Tribunal member found that an end user license agreement (EULA) was not binding on BJR.