Thomas v The Agency.Blue[2018] QCATA 43

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers without the attendance of either party in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   The applicant is seeking leave to appeal a tribunal decision ordering him to pay six overdue monthly invoices of $800 between 13 January and 8 June 2016 for adventure tourism marketing.
2. [2]
   There is also an additional amount of $752.40 to reimburse the respondent for the cost of subscription to the online booking system, Rezdy, paid on the applicant’s behalf (see invoice dated 31/7/2016). 

The contract

3. [3]
   The Agency.Blue is an online marketing and website design business in North Queensland. Paul Toogood is the registered owner.
4. [4]
   The applicant Allan Thomas is a destination tourism retailer trading as Wildside Adventures.
5. [5]
   The respondent claims to have provided social media and website services to the applicant in 2016 on agreed terms. On his case there was an agreement with the applicant initially for 3 months, to continue for 6 months if not cancelled earlier, at the rate of $200 per week discounted from $350 payable on monthly invoices.  
6. [6]
   He explains in his filed material that:

In December 2015, Allan Thomas of Wildside Adventures agreed to a contract for the provision of Website and Social Media Package.  The agreed contracted and discounted rate was $800 per month.  We were provided log ins to the website, added us as Administrators to Wildside Facebook Page and Managers to Wildside Google+ page in January 2016.  Every month the work was completed as specified on the contracted terms and posts were made daily on Facebook, Google+, Twitter and then Instagram.  We had [sic] was to remove negative feedback.  Special Graphics were created for Wildside.  Allan Thomas shared a lot of the content we created for the business to his own personal Facebook Page.  The website was completed.  We did not receive any complaints about our work.  Monthly invoices were sent but remain unpaid.

7. [7]
   On 22 December 2015 the use of Rezdy was discussed. The applicant provided his bank account details for direct booking payments.
8. [8]
   At [20] of his affidavit sworn 16 January 2017, the respondent deposes that:

At the December meeting (at the applicant’s Mission Beach office) Allan Thomas indicated clearly and verbally to me that he wished to proceed with the … contract.

9. [9]
   He says that the applicant provided his website and domain logins around 18 December 2015 about the same time as he was given “a written contract (Digital Content Management Plan 2015) which formed a proposal of works” including a current social media appraisal and the creation or optimisation of Facebook, Google+, Twitter and Pinterest business pages.
10. [10]
    The respondent claims that a new website was uploaded on 23 December 2015. 
11. [11]
    The weekly actions taken by the respondent included:

• maintenance of the business Facebook page;
• minimum of 20 posts per week including specific photos;
• following and sharing content;
• engaging with commenters;
• increasing reach, followers and likes;
• creating custom memes; and
• compiling an end of month report.

9. [12]
   On 29 December 2015 the applicant indicated that he was very happy with the work to date. On 11 January 2016 the respondent emailed the applicant to say “… we need to sit in front of a computer to finish off the Rezdy setup”. 
10. [13]
    On 12 January 2016 Paul Toogood emailed his wife, Julianne, who did the billing, as follows:

Subject:  Wildside Adventures

Allan Thomas

$350pw discounted to $200pw for 6 months.  Option to cancel after 3 months.

Payment monthly in advance but he is OK to not pay for the first few weeks.  If we start billing from 1 Jan he picks up nearly 2 weeks free … Includes work as per Digital Content Management Plan.

14. [14]
    All social media content was completed by June 2016.
15. [15]
    On 24 June 2016 the applicant requested access details to the website in an email that referred to the “outstanding balance” of the account.
16. [16]
    The respondent’s reply is recounted at [44] of his affidavit:

The outstanding balance was what we agreed in December $200pw covering social media, website, G+ etc – the only extra is a couple of months of Rezdy payments @ $99pm which I initially paid for but then stopped as I was going backwards.  I will bring invoices in with me tomorrow.  I have changed the booking section of your website to just the phone number – depending on how busy it is or isn’t you may want to fire up online bookings with Rezdy especially as a lot of Cairns travel agents have access to booking you direct. See you in the morning.  Cheers, Paul.

17. [17]
    At an onsite meeting at the his premises on 25 June 2016 in front of Linda Weiss (who was there creating a new website for the applicant) the applicant allegedly said that he thought the website upgrade was only worth $800 and that’s all he intended paying.
18. [18]
    As at 8 July 2016 the unpaid amounts for invoices 333-419 were $800 x 5 with $4,000 overdue for 60 days, $800 overdue for 30 days and $800 current.
19. [19]
    The respondent lodged a civil dispute claim in QCAT on 31 August 2016 to recover outstanding fees.
20. [20]
    At [61]-[67] of his affidavit he submits:

• Allan Thomas provided the logins to allow us to access www.wildsideadventures.com.au to enable us to update the website;
• Wildside Adventures was given an opportunity to cancel the contract after 3 months.  This information was included on every invoice we sent to him from January 2016.  Allan Thomas did not advise us either verbally or in writing that he wished to cancel the contract;
• Thomas added us as managers of the Wildside Adventures Google+ page.  Without his express action in adding us as managers to a page he owns, we could not have posted on the page or provided content;
• he also added me as an administrator to the Wildside Adventures Facebook Page.  Without administrator status we are unable to post updates on the Facebook page;
• Thomas provided to me the bank account details so Wildside Adventures could collect payments from bookings for Rezdy.  I did not obtain this information from any other source other than Thomas;
• he shared multiple posts created by us for the purpose of promoting Wildside Adventures onto his own personal Facebook page;
• at no time on any occasion did Thomas mention that he believed the arrangement was commission-based, express dissatisfaction or make any complaint whatsoever until the contract ended and payment was due.  The word “champ” would indicate that.

17. [21]
    In response, the applicant he says he could only afford a net rate based on results and only agreed to pay the respondent “…if his efforts generated a measureable amount of online bookings for my tours each week” but no liability was incurred if the bookings condition was not met. As only 4 bookings were made the threshold for his agreed liability to pay under the commission-based agreement was not crossed.  He denies that “there is … evidence to substantiate the claims in that no contract was entered into between Paul Toogood and myself and no money is owning …”
18. [22]
    According to him respondent was to be paid “…$500 if and when he added all (my) products on the website in a functional online booking system and this included approximately 21 package deals .. and fix(ed) … broken links” and after that “… a minimum of 10 online bookings per week were required to be made via my online booking in exchange $200 paid to him as a net rate, but no more …”.

The hearing

23. [23]
    The question for the tribunal was whether the respondent had made a promise to pay the claimed amount in sufficiently certain terms so that it was fair and equitable to enforce it in the exercise of its minor civil disputes jurisdiction.
24. [24]
    The tribunal concluded that the terms of the contract were “quite reasonable in circumstances where quite a considerable amount of work was done.”^[1]  The monthly invoices sent to the applicant (which the applicant says he never opened) were accepted as more consistent with the respondent’s version than the applicant’s.  Also, the tribunal noted that, significantly, booking summaries were not sent to the respondent and there was no evidence as to how the alleged commission-based agreement would work in practice, including, how it was to be paid if, say, 50 bookings were made in one week and none for the rest of the month. In addition there were no booking summaries sent to the respondent. 
25. [25]
    The tribunal found the applicant had gained an increased online and social media presence and connectivity with potential customers and ordered him to pay a total of $6640.90 (including filing fees) of the total $9,152.40 (plus interest) claimed for the invoices and Rezdy subscription.
26. [26]
    The order is vulnerable on appeal only if it is vitiated by some error which would be substantially unjust to the applicant if not corrected. Dissatisfaction of the losing party is, of course, necessary but not nearly enough.

Stay of decision 

27. [27]
    The applicant applied on 16 February 2018 for a stay of the decision in issue for 3 months following the issue of an enforcement warrant for the sale and seizure of his property (a Toyota Coaster bus).
28. [28]
    The applicant claims that the bus is essential to his business operations and used to transport clients for rafting tours. The loss of this asset, so he says, means that the business would not be able to continue and his employees would find themselves suddenly unemployed. 
29. [29]
    There is no evidence provided about alternative transport options or other assets of the business that support his contentions. There was no copy of the warrant attached and it is unclear if the applicant has notified the respondent of the application. 
30. [30]
    One of the stated grounds is that there is an appeal on foot. However, the operation of the tribunal’s decision is not affected by the appeal^[2] but the tribunal has an unfettered discretion to stay enforcement pending the finalisation of the appeal.^[3] 
31. [31]
    The applicant carries the onus of demonstrating good reasons for depriving the victor the fruits of its success. 
32. [32]
    The application has been filed when the determination of the appeal was well underway and any decision to stay the original order will shortly be superseded by the appeal tribunal’s decision. As these reasons will show, insufficient doubts about the correctness of the decision have been raised to justify a stay, especially at this late stage. 
33. [33]
    The fundamental justification for a stay of prima facie regular orders is to preserve the status quo so that the appeal decision can be given full effect. Relevant considerations are whether refusal would render success on appeal nugatory and if granting the stay is more consistent with achieving the tribunal’s objects than refusing it.
34. [34]
    The natural consequences of a regular standing tribunal order, such as enforcement action, do not generally establish detriment.
35. [35]
    Stay requests hinge on the balance of convenience and the relative strengths of the parties overall rights and interests.
36. [36]
    Arguably the applicants would be irretrievably prejudiced if the appeal tribunal decides to set aside the order and the bus is returned after the business has collapsed.
37. [37]
    However, because of the lateness of the application, the insufficient evidence, and, as these reasons show, insufficient doubts about the correctness of the decision, the stay is refused in my discretion.

Extension of time

38. [38]
    A preliminary appeal issue to be decided is whether the applicant has filed his appeal in time.
39. [39]
    The tribunal heard and decided the matter on 9 March 2017. The application for leave to appeal and appeal was filed on 16 May 2017 and received in Brisbane on 19 May 2017. 
40. [40]
    The applicant has 28 days after the ‘relevant day’ to file an appeal.^[4] The ‘relevant day’ is either the day the applicant received notice of the decision being appealed against (if written reasons have not been given and have not been requested under s 122) or the day the applicant was given written reasons for the decision being appealed against.^[5]
41. [41]
    The applicant says that he was advised by Legal Aid on 20 March 2017 that he required a transcript of the proceeding to apply for an appeal. He says he ordered the transcript on 23 March 2017, within the 14 days required by s 122(2) but it did not arrive within the 3 days he was informed it would take and on the 6 April 2017 (28 days after the decision) he filed a Form 42 seeking an extension of time to file an appeal.
42. [42]
    The applicant stated in the Form 42 that he only found out that he did not need the transcript to proceed with his appeal when he called QCAT and he immediately made a request for written reasons on 5 April 2017. He says he has been diligent and the time period lapsed through no fault of his own. The tribunal refused the extension of time application on 27 April 2017. 
43. [43]
    The applicant says that once he received written reasons on the 21 April 2017 he submitted his application for leave to appeal and appeal within 28 days. No copy of the reasons are on file.
44. [44]
    In response, the respondent claims that the applicant received notice of the decision on 9 March 2017 and that the 28 day time period began from this date meaning that he is out of time without good reason. 
45. [45]
    Both parties have a right to be given the tribunal’s final decision in a proceeding in writing.^[6] If the tribunal gives its decision orally, the parties may apply within 14 days of the decision taking effect to be given written reasons for the decision.^[7] The tribunal has 45 days within which to comply.^[8]  
46. [46]
    The applicant did apply for a transcript within 14 days of the decision being made. Giving him the benefit of the doubt about the misinformation he received from Legal Aid permission to file his appeal out of time is granted.

Leave to appeal 

47. [47]
    Leave to appeal the decision is applied for on the grounds that a series of mixed errors of law and fact need correction to avail or remedy a substantial miscarriage of justice.^[9] The applicant must also show there is reasonable chance of obtaining substantive or effective relief^[10] (which in this case is not having to satisfy the tribunal’s order). The appeal tribunal can only overturn the tribunal’s findings of fact if the conclusions drawn are unreasonable and unsupportable; a mere difference of opinion will not suffice. 
48. [48]
    The alleged errors particularised in Annexure A to the Form 39 are summarised as: 

• error of law – no contract existed between the parties;
• error of law – inadequate consideration;
• error of law – unjust enrichment;
• errors of law – denial of procedural fairness – not allowing the applicant to adequately present his case, including refusing to allow Linda Weiss to give evidence or to cross-examine witnesses on the applicant’s behalf; 
• error of fact – wrongly identifying a document as a binding contract;
• error of fact – the tribunal came to an unreasonable conclusion based on the evidence presented (including accepting conflicting evidence and ignoring discrepancies in the contract);
• error of fact – ignoring illegal and damaging behaviour of the respondent towards the applicant.

47. [49]
    In a new ground added (without leave) after directions dated 31 October 2017 the applicant claims that the respondent has engaged in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law. 
48. [50]
    The applicant has also filed two affidavits^[11] and a letter from Rezdy^[12] which states that the account was inactive for 4 of the 6 months it was under the respondent’s control.
49. [51]
    The tribunal’s leave is required to adduce fresh evidence. Ordinarily additional evidence reasonably available at the time of the hearing^[13] is not allowed in applications for leave to appeal but the tribunal is not bound by the strict rules constraining court proceedings,^[14] and in an effort to ensure that the dispute can be decided on the basis of all the relevant information,^[15] the new material will be considered on its merit in deciding the leave issue. 

The no contract ground

52. [52]
    The first and main ground of appeal is that the tribunal wrongly found that the respondent had satisfied the onus of proving the formation of a binding contract. If there was an agreement at all the applicant says the tribunal erred in not finding that it was on the basis of the applicant’s commission only “counter offer”. 
53. [53]
    The applicant contends that it is reasonably arguable:

• the parties intended to contract on different terms, therefore, there is no enforceable contract;
• the respondent’s offer document was not accepted by signature or other conduct and expressly rejected;
• the respondent accepted the applicants counter offer;
• the only rational conclusion open to the tribunal was that either there was no contract for lack of consensus or there was a commission contract that the applicant did not substantially perform and is not entitled to the invoiced or any amount.

54. [54]
    The law of contract does not hold an offeror to an unaccepted or uncertain offer.
55. [55]
    The existence and terms of a contract are questions of fact.  The appeal tribunal does not generally grant leave to appeal by way of rehearing against findings or inferences of fact reasonably open on the evidence.
56. [56]
    In Kennett v Natwide Pty Ltd:^[16]

The Appeal Tribunal will not interfere with the findings of fact of the original decision-maker if the evidence is capable of supporting their conclusions.^[17]

However, if the Appeal Tribunal finds that the original decision-maker was in error, making due allowance for the considerable advantages of the original decision-maker in directly observing the evidence and the disadvantage of the Appeal Tribunal in proceeding primarily from the record, the Appeal Tribunal must not eschew give effect its own determinations.^[18]

If the findings of fact are based on evidence in respect of which the original decision-maker possesses a manifest and incontrovertible advantage, such as the credibility of witnesses appearing to give oral testimony, the Appeal Tribunal will only interfere with the decision of the original decision-maker where it is “contrary to compelling inferences”,^[19] “glaringly improbable”,^[20] or “inconsistent with facts incontrovertibly established by the evidence”.^[21]

57. [57]
    The evidence is equally capable of supporting opposing findings that the respondent made an offer the applicant accepted expressly and unconditionally or conversely that the applicant’s commission only counter offer was accepted.
58. [58]
    In that event the outcome was a matter of analysis and credit based reasoning.
59. [59]
    The applicant challenges the tribunal’s reliance on a document titled “Digital Content Management Plan” which states on page 15 that “this document forms the contract between the parties name on Page 1 and TheAgency.Blue”, which he says was never accepted by signature or other conduct. 

60. [60]
    In the applicant’s submission the tribunal should have preferred his argument that the respondent accepted his commission-based counter offer but failed to meet the pre-condition for payment.
61. [61]
    The applicant’s complaint is misconceived.  The tribunal did not find that the document formed the basis of an enforceable contract but held that the terms of the parties’ agreement were oral and confirmed by their conduct. 
62. [62]
    As to the unsigned ‘contract’ document the tribunal found that:

The plaintiff does not even know if the respondent has read the document. At best, it can loosely provide some description as to the terms of the agreement between the parties.^[22]

63. [63]
    And then went on to hold:

… the terms and material in the document are consistent with the plaintiff’s evidence. And while they do not form the terms of the contract, the material that was prepared by the plaintiff and, I accept, was provided in December 2015, support his evidence that the oral agreement between them was for a net payment of $200.

64. [64]
    This is not a case concerned with the uncertainty of terms, conditional obligations or the incorporation of implied terms.
65. [65]
    The parties’ promises did not require writing to be binding. A contract can be legally enforceable even if its’ written terms were unsighted and unsigned by the accepting party.^[23] Documentation goes to proof of formation – it is not a precondition. 
66. [66]
    Where the intention of the parties is ascertainable and should be given practical expression.  It was open to the tribunal to act on either version by preferring the direct evidence of one of them or inferring the most probable explanation from their conduct.
67. [67]
    It is clear that the tribunal accepted the respondent’s evidence, was unconvinced by the applicant’s, and its conclusion was open on the evidence. 
68. [68]
    The most reasonable explanation for what the parties did and said is that a contract in the terms of the written offer was concluded by the applicant’s implied acceptance by conduct. In other words, the offer and acceptance corresponded. 
69. [69]
    Even if he did not expressly say so his conduct clearly confirmed the applicant was treating the respondent (and himself) as unconditionally bound.
70. [70]
    The document sufficiently identified the scope of the rights and obligations agreed to.  Its language is clear in its meaning and effect.
71. [71]
    The agreement the tribunal found was complete and left no reason for implying additional words or qualification that change the nature of the agreement.
72. [72]
    The respondent completed work including creating “admin logins” for a Facebook page and website, removing negative feedback, posting daily, and creating special graphics and images promoting the business. No complaints were made about the service provided by the respondent.
73. [73]
    The appeal tribunal does not accept the applicant’s submission that the tribunal contradicted itself by holding that the document was not a contract but used it to form the basis of its decision. Its use was permissible and perfectly rational.

The fresh evidence ground

74. [74]
    The applicant contends that “with the additional evidence” he has “more than a reasonable chance of success” and there is a “reasonably arguable case that the primary decision maker made an error”. 
75. [75]
    The discovery of fresh evidence after a hearing may justify leave if it is credible and, if accepted, capable of producing the opposite outcome. The remedy is an appeal by way of rehearing or remittal to the tribunal for reconsideration.
76. [76]
    However, as pointed out in Goldsmith & Anor v AMP Life Ltd:^[24]

… leave to appeal by way of rehearing on additional evidence is ordinarily granted only in those relatively rare cases where there is, at least, a better than arguable case of vitiating defect or error as well as a demonstrable substantial injustice to be righted and no personal default on the applicants’ part.

77. [77]
    At [4] of his 14 November 2017 submissions the applicant says:

a. The additional evidence of Stephen Hicks, Linda Weiss and the letter from Rezdy enables the court to make the correct decision.

i. The affidavit of Stephen Hicks who was a witness to the conversation between Allan Thomas and Paul Toogood (The Agency) provides three appeals. (Annex 1).

1. He can confirm that Allan only offered Paul an agreement on a commission basis.
2. He provides evidence that commission style payment is the how Allan operates his business as he is not in a positon to pay any wages.  This is consistent with the terms that Allan offered Paul Toogood.
3. At no stage during the discussion did Paul discuss or provide any terms of his offer.

ii.  The affidavit of Linda Weiss gives evidence of the terms Allan had agreed to that of a commission based offer to Paul.

1. The failure of Paul Toogood to manage the Rezdy booking system.
2. Paul Toogood’s failure to adhere to the terms in the ‘brochure’ which goes to the heart of Paul Toogood’s behaviour.  Either he has breached his own contract or he has breached Australian Consumer Law (Cth) s 18 (ACL) by his misleading behaviour.

3. The letter from Rezdy points out the mismanagement of Paul Toogood, the Rezdy online booking system was not operational for 4 months.
4. Had the tribunal had access to this additional evidence they would have made a decision in favour of Allan and as such the tribunal has made an error.
5. With the addition of the new evidence the balance of probabilities test is satisfied. (Briginshaw v Briginshaw (1938) 60 CLR 336).

78. [78]
    As to the new material the respondent says:

• the applicant had an opportunity for a fair hearing before the magistrate and has failed to take any opportunity to advance his appeal within the time limits;
• the applicant has essentially sought to re-argue the matter because he was not happy with a decision being made against him and has provided new material that was not provided during the hearing of the matter on 9 March 2017;
• the applicant has not made an application for permission to file new material in this matter and no permission was granted;
• the new material contains 2 new affidavits (Linda Weiss and Stephen Hicks) and a letter purporting to be from Rezdy dated 13 November 2017;
• all of the new material was information that was available to the applicant to be provided during the hearing on 9 March 2017.  The applicant chose not to produce this evidence for the hearing and must be restrained from doing so now;
• the respondent objects strongly to the applicant being permitted to provide any further evidence, which is not new or fresh in any event.

Affidavit of Linda Weiss:

• in any event the ‘fresh evidence’ provided to QCAT for this appeal was evidence that was available at the time of the hearing on 9 March 2017;
• the affidavit of Linda Weiss contains false and misleading information that is entirely disputed at paragraphs 5, 6, 11, 12, 13, 15 and 21;
• the affidavit of Linda Weiss confirms that Allan Thomas did not want to or have the means to pay for Rezdy booking system.  The evidence supports the decision of the magistrate that Allan Thomas wanted Paul Toogood to use his credit card to pay for the Rezdy booking system;
• the affidavit of Linda Weiss was made 2 years after the alleged events and made with the benefit of having read all the material filed in this matter;
• the affidavit appears unsurprisingly to be tailored specifically to provide an obvious benefit to Mr Thomas, however, it does not provide any evidence to support the applicant’s claims for a commission-based contract for agreement;
• the affidavit of Linda Weiss 13 November 2017 does not confirm the applicant’s statements that Paul Toogood was retained on a commission basis.  Paragraph 12 confirms the decision of the magistrate on 9 March 2017 that there was money owning for the work performed;
• Linda Weiss’ affidavit is pre-occupied in trying to convince the court that she is a superior social media marketing manager and website designer when this is irrelevant to the application for leave to appeal.

Affidavit of Stephen Hicks:

• Stephen Hicks is employed by Mr Thomas and has a reason to provide a false statement in this matter;
• in any event the “fresh evidence” provided to QCAT for this appeal was evidence that was available at the time of the hearing on 9 March 2017.  Indeed the “witness” Stephen Hicks states he was working for Mr Thomas at the time of the hearing at Tully QCAT on 9 March 2017 and available to provide an affidavit or attend QCAT on that date to provide oral evidence to assist Mr Thomas.  He did not do so;
• the affidavit of Stephen Hicks contains deliberately false and misleading information that is entirely disputed at paragraphs 1, 2, 3, 5, 6 (partial), and 7;
• the affidavit of Stephen Hicks was made 2 years after the alleged events and made with the benefit of having read all the material filed in this matter.

Rezdy letter:

• it is not fresh evidence and could have been provided to the court and as such should not be accepted for the appeal.  Mr Thomas did give oral evidence about Rezdy to the court which the court found conflicted with his sworn/written evidence;

• in addition, Mr Thomas could have provided evidence from Rezdy which supports his false statement that Paul Toogood setup the account.

79. [79]
    In the regular court system failure by a losing party to adduce evidence at first instance is not usually a winning ground of appeal unless, although available, it was not discovered in time despite reasonable diligence.^[25]
80. [80]
    The tribunal probably has a wider discretion than that to decide facts or mixed appeals on additional evidence when conducting rehearings under s 147 QCAT Act but even it discourages fragmentation and drip-feeding available evidence over more than one proceeding. 
81. [81]
    The question is whether the additional evidence should be received on the leave application as a matter of practical justice because it raises sufficient doubt about the correctness (and justice) of the tribunal’s finding that a contract for $200 per week (or $800 per month) existed between the parties.
82. [82]
    Parties to a proceeding have a specific statutory right to a reasonable opportunity to call or give evidence, examine witnesses and make submissions.^[26] For their part, even if not legally represented, they are expected to be prepared to present their cases for and against a claim on the listed dates unless more time is permitted.
83. [83]
    The tribunal itself has a duty to inform itself of all relevant material to enable it to finally decide the proceedings according to the substantial merits and, in minor civil claims, to resolve disputes by making orders considered “fair and equitable”.^[27]
84. [84]
    The applicant was asked at T1-7:20 if he intended calling any witnesses and replied “no”.  He explained his case was that he didn’t owe the respondent anything under the terms of any written contract for services.  He put forward an alternative oral commission-based arrangement between the pair.  He cross-examined the respondent at length but did not put to him that he had two witnesses, Linda Weiss and Stephen Hicks, who could give evidence of contrary acts.
85. [85]
    Linda Weiss and Stephen Hicks have both worked for the applicant either on a commission basis or “in exchange for free rafting tours” and state that the applicant customarily engaged services in this manner.  Ms Weiss (after being asked to provide login details to the respondent over the phone) says that the applicant assured her that “he did not enter into any contract with (the respondent), instead came to a simple agreement that (the respondent) would be paid $200 per week if 10 online bookings were achieved in a week”.^[28] Stephen Hicks says that he remembers the applicant telling the respondent that if he achieved “a certain amount of online bookings each week, he would pay (the respondent) a set amount of money”.^[29]
86. [86]
    Self-serving hearsay statements by untested partisan witnesses generally carry little weight even if they corroborate the applicant’s honest belief.  Neither of the proposed affidavits address the issue of how the applicant’s commission-based agreement was intended to work but, if they had been called at the hearing, may have eroded the tribunal’s confidence in the respondent’s credit.

The inadequate consideration ground 

87. [87]
    The applicant says that the $6640.90 cost is excessive for the benefit of 4 online bookings in 6 months and that the consideration provided by the respondent for his promise to pay was inadequate. 
88. [88]
    The applicant again seeks to rely on the Weiss affidavit, who has since taken over the website and online bookings for the applicant’s business. She states that she was able to secure 42 direct online bookings in the 6 months after she took over from the respondent, using a cheaper online booking system, and that nowhere near the “guaranteed outcomes” (outlined in the “Digital Content Management Plan”) were achieved.^[30]  Outcomes include increased bookings, exposure and presence on social media, brand awareness, and website traffic, as well as 1000 likes on your business’ Facebook and 1000 followers on Google+ and Twitter business pages.
89. [89]
    It would be unrealistic to expect performance of the contract to be solely measured against online bookings. The tribunal clearly accepted other evidence, such as Facebook posts and other content creation and the removal of negative feedback, etc. as evidence that the respondent had upheld his end of the bargain. 
90. [90]
    Legal liability for an obligation is not dependent on successful outcomes. Purchasers cannot renounce promises to pay for a service provided as agreed just because they made a bad bargain. 

The unjust enrichment ground

91. [91]
    The applicant says that the order to pay the respondent $6640.90 in return for 4 online bookings is unconscionable. 
92. [92]
    Similar problems as with the “inadequate consideration” ground apply. While 4 bookings is not a fantastic outcome for the amount the respondent claims, the applicant was not just paying for bookings, but rather for an increased online presence and brand awareness. 

Other alleged errors of fact

93. [93]
    The applicant alleges a number of errors of fact including wrongly or irrationally inferring a concluded contract from the unsigned offer document and ignoring or overlooking tell-tale pieces of evidence that contradicted the respondent’s claims: 

• the failure to meet “guaranteed outcomes”;
• the fact that monthly invoices cannot be paid in advance but the act of payment affirms the terms of the contract – indicating that the respondent should not have performed any work without upfront payment of fees;
• the failure to mention the existence of an alleged contract in a  multitude of emails – indicating the respondent’s belief in its existence was improbable;
• that the Rezdy account was in the respondent’s name; and
• that the maintenance of the Rezdy booking system was inconsistent with the commission-based agreement. 

93. [94]
    As already mentioned, the tribunal did not infer a concluded contract from an unsigned offer document, but accepted it as a piece of relevant information contributing to the tribunal’s conclusion. 
94. [95]
    The tribunal allegedly acted irrationally or under a misunderstanding of the evidence in finding that the applicant’s concession that the respondent set up an online booking system as part of his service was at odds with the suggested agreement based on commission payments.  Rather than being inconsistent the applicant says the fact that the respondent was notified of every online booking allowed him to invoice the $200 as agreed for every 10 bookings without the need to send booking summaries. 
95. [96]
    Mere disagreement with the tribunal’s finding is not enough to ground an appeal. The applicant may dispute the tribunal’s conclusions but in my opinion they were open on the available evidence and not unreasonable or irrational such that appellate intervention is required. 

Procedural fairness

97. [97]
    The applicant claims that the respondent was unduly forensically advantaged to his prejudice and that the hearing was procedurally unfair in breach of s 28 and 29 QCAT Act because he was unable to present his evidence and was denied expert assistance to understand website booking systems and social media. 
98. [98]
    The claim that he was unable to present his evidence is without merit. The transcript of the hearing clearly indicates that both parties were given ample time to present their case and conduct cross-examination. 
99. [99]
    The second complaint is that the tribunal denied the applicant the opportunity to effectively cross-examine the respondent and better refute his claims. 
100. [100]
     A party may be represented by an appropriate person with leave but only in the interests of justice.^[31]  
101. [101]
     The applicant unsuccessfully proposed that Linda Weiss question the respondent because he was “more of a river man”.^[32]
102. [102]
     However, the applicant had not sought leave to be represented by agent and Ms Weiss was not a party to proceedings entitled to the right to crossexamine. There was no evidence or submission satisfying the “interest of justice” condition.^[33] 

Failure to consider the respondent’s extortionist behaviour

103. [103]
     The applicant complains that the respondent needlessly racked up Rezdy costs of $752.40 instead of $75 for an equally good plan.
104. [104]
     There is no basis for concluding that the cost of the Rezdy plan was unreasonably incurred or that the tribunal did not adequately consider whether it was or not. No doubt there are numerous similar products and plans and the simple fact there may be a better or cheaper one available is an insufficient ground of appeal. 

Conclusion

103. [105]
     Leave to appeal the tribunal’s decision is refused.