MLK Marketing v Mark James Pty Ltd [2026] QCATA 15

[3] On 15 August 2023 the magistrate hearing the matter ordered MLK pay to Mark James $19,695.50 within 28 days of the decision date. MLK did not attend the hearing.

[4] MLK lodged an application for leave to appeal or appeal on 7 September 2023. The appeal contained no grounds, asserting reasons for the decision were required before these could be provided.

[5] In submissions filed 10 November 2023 it asserted the following grounds:

(a) The magistrate erred in finding MLK did not perform the contract, and erred in finding on the balance of probabilities that Mark James paid MLK the money and that the website was non-functional;

(b) If the Appeal Tribunal upholds the original decision Mark James will be unjustly enriched as they have received the services and a full refund of payment for those services.

[6] Unjust enrichment is not a ground of appeal by itself but a principle underlying claims for restitution. Claims involving unjust enrichment must be fundamentally based on some cause of action, for example, that payment was made by mistake or under duress. A person's belief that another person's retention of a benefit is unjust is not sufficient to ground a claim.[1]

[7] An appeal is not a rehearing and is not an opportunity to tender further evidence in an attempt to further argue the original dispute. It is an application concerning a legal or factual error made by a decision-maker.[2]

[8] MLK asserts the magistrate made errors of fact.

[9] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.[3] Leave is required if the appeal involves a question of fact or mixed law and fact.[4] The principles to be applied in considering whether leave to appeal should be granted are:

(a) Is there a reasonably arguable case of error in the primary decision?[5]

(b) Is there a reasonable prospect that the applicant will obtain substantive relief?[6]

(c) Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7]

(d) Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]

[10] If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.[9] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant's favour.[10] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[11] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[12]

[11] The contract signed by MLK and Mark James on 20 July 2022 provided, among other options, a 'Bronze SEO Package' and 'Adhoc Web Development'. The contract's last page notes these were the two options selected by Mark James. The terms of the bronze package were:

(a) Payment by Mark James of $855 + GST per month;

(b) The first month's deposit was required prior to commencement;

(c) The website was to be set up within 10-12 weeks (with ongoing support);

(d) The page also listed certain features to be included in the package including, inter alia, keyword optimisation, monthly focus sessions and technical support.

(e) Payment of $2,465 + GST (total);

(f) Payment of a 50% deposit ($1,232.50 + GST) prior to commencement;

(g) Payment of the remainder upon completion of website prior to 'go-live' (presumably making the website public);

(h) Delivery time of 10-12 weeks;

(i) The page also listed a scope of works detailing the technical services to be provided under that option.

(a) 20 July 2022, for $4,675 (transaction date 26 July 2022);

(b) 20 July 2022, for $940.50 (transaction date 26 July 2022);

(c) 6 August 2022, for $940.50 (transaction date 17 August 2022);

(d) 6 September 2022, for $940.50 (transaction date 19 September 2022);

(e) 6 October 2022, for $940.50 (transaction date 19 October 2022);

(f) 6 November 2022, for $940.50 (transaction date 8 November 2022);

(g) 15 November 2022, for $4,675 (transaction date 16 November 2022);

(h) 6 December 2022, for $940.50 (transaction date 17 November 2022);

(i) 6 January 2023, for $940.50 (transaction date 6 January 2023);

(j) 6 February 2023: this was received on credit, unpaid by agreement;

(k) 6 March 2023, for $940.50 (transaction date 3 April 2023);

(l) 6 April 2023, for $940.50 (transaction date 13 April 2023).

[13] A bank statement printout lists a further a payment of $940.50 to MLK on 17 April 2023.

[15] On 15 April 2023 the representative for Mark James, Mr Vellnagel, emailed MLK stating the website did not fully function. On 4 May 2023 Mr Vellnagel emailed MLK again proposing termination of the contract and a partial refund.

[16] At the original hearing Mr Vellnagel submitted the website was publicly accessible, but he had no administrative access, no control over the backend and no ability to use the site to make a purchase.

[17] MLK filed no substantive submissions in the proceeding below.

[18] In its 10 November 2023 submissions MLK states it provided the services under the agreement and worked with Mark James to fulfil its obligations.

[19] It attempted to book virtual sessions with Mark James to discuss the progress of the build. It has accommodated Mark James' desire to use email communication. It has implemented changes to the site suggested by Mark James. It has resolved an issue with double payment, and attempted to resolve the issue of Mark James' administrative access. It has advised Mark James about website updates when they became available.

[20] MLK states delays were caused by Mark James' continuous revisions and unwillingness to communicate except by email. Further, delay in providing the website is not a breach of contract because Mark James never emphasised the importance of time in the completion of the agreement.

[21] On 25 September 2023 Mark James submitted that it had been left without a working website. On 17 October 2023 it filed a letter of advice to creditors stating MLK Group Pty Ltd (ABN 150 127 361) had entered into external administration.

[22] I note that a search of published notices on the ASIC website reveals MLK Group Pty Ltd is now in liquidation.

[23] On 31 October 2023 Mark James contested several points in MLK's appeal submission and pointed out they still did not possess a website.

[24] I can discern no basis for error in the magistrate's determination. The claim amount is proved to the requisite civil standard on the evidence.[13] Mark James paid for a website under their control and have not received that.

[25] It is not an appellable error to prefer one version of the facts to another or to weigh a party's submissions with more or less weight than the party thinks it ought to receive. If a factual finding has rational support on the evidence, even if another rational view is available this is not a ground for appeal. A decision cannot be called erroneous simply because one rational explanation has been preferred to another.[14] In this case there is even less scope for error as MLK filed no substantive submissions in the original proceeding and did not appear at the hearing.

[27] The application for leave to appeal is dismissed.

[1] Kingston Futures Pty Ltd v Waterhouse [2021] QDC 119 [45].

[2] Ramsay v Earl [2025] QCATA 29 [19].

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) ('QCAT Act').

[5] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[6] Cachia v Grech [2009] NSWCA 232 [13].

[7] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[8] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[10] Ericson v Queensland Building Services Authority [2013] QCA 391.

[13] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[14] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at 20; Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479.