Baptista v Hyper Apps Pty Ltd t/as Hyper Startup Studio [2026] NSWCATAP 273

Catchwords: APPEAL - question of law - procedural fairness - weight of evidence – constructive failure to exercise jurisdiction Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Baptista v Hyper Apps Pty Ltd t/as Hyper Startup Studio [2026] NSWCATAP 273 Hearing dates: 20 May 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Appeal Panel Before: Dr K M George, Senior Member Emeritus Prof R Graycar, Senior Member Decision: (1) The appeal is allowed in part. (2) The orders of the Tribunal of 28 November 2025 are set aside. (3) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for redetermination in accordance with these reasons on such further evidence, if any, as the Tribunal considers appropriate . Catchwords: APPEAL - question of law - procedural fairness - weight of evidence – constructive failure to exercise jurisdiction Legislation Cited: Australian Consumer Law 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Pholi v Wearne [2014] NSWCATAP 78 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: Nil Category: Principal judgment Parties: Mariana Musi Baptista (Appellant) Hyper Apps Pty Ltd t/as Hyper Startup Studio (Respondent) Representation: Appellant (Self-represented) S J Reid, director (Respondent) File Number(s): 2025/00493912 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2025] NSWCATCD Date of Decision: 28 November 2025 Before: M Hung, Senior Member File Number(s): 2024/390522 REASONS FOR DECISION Introduction This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ( “ NCAT Act ” ). The appellant appeal s against a decision made in the Consumer and Commercial Division of the Tribunal on 28 November 2025 pursuant to the Tribunal ’ s jurisdiction under the Fair Trading Act 1987 (NSW) ( “ FTA ” ) . For the reasons set out below, we have decided to allow the appeal in part. Background and Tribunal proceedings The respondent carrie s on a business which provide s entrepreneurs with assistance and advice in launching business start-ups. The respondent provide d the appellant with services as part of its “ Accelerator Program ” and “ Pre Development Program ” . On 21 October 2024, the appellant filed an application with the Tribunal claiming damages due to t he respondent ’ s alleged breach of the consumer guarantees in the Australian Consumer Law 2010 (NSW) ( “ ACL ” ) . The application came before the Tribunal on 8 November 2024 at which time Mr Sam Cust , an employee of the respondent, was joined as second respondent. At the end of a contested hearing on 23 July 2025, the Tribunal noted the appellant required more time to address all claims in her application. Therefore, the Tribunal gave the parties leave to file written submissions limited to legal arguments by reference to existing evidence. Both parties did so in August 2025. On 28 November 2025 the Tribunal made the following orders: The second respondent is removed as a party to these proceedings. The application is dismissed. The Tribunal provided written reasons for the decision. The appellant challenges both orders on appeal. Submissions and evidence The material before the Appeal Panel included: Notice of Appeal with supporting documents (57 pages) Reply to Appeal Appellant’s documents filed 13 March 2026 (97 pages) Appellant ’ s submissions filed 13 March 2026 (15 pages) Respondent ’ s submissions and documents filed 23 April 2026 ( 40 pages) Appellant ’ s submissions in reply filed 7 May 2026 (4 pages) Notice of Appeal The Notice of Appeal was filed on 19 December 2025 and within the time specified by cl 25(4 ) (c) of the Civil and Administrative Tribunal Rules 2014 (NSW) . The grounds of appeal were identified in the Notice of Appeal , and in the appellant ’ s written submissions filed on 13 March 2026 ( “ March submissions ” ) . There is a degree of overlap which the appellant clarified during the appeal hearing. We summarise the grounds of appeal as follows . C onstructive failure to exercise jurisdiction / denial of procedural fairness (referred to as Ground 1 and Ground 4 in the March submissions). The appellant says the Tribunal did not consider and determine all the pleaded causes of action, including an alleged breach of s 62 ACL, and confined its consideration to s 60 ACL. Related to this ground, the appellant says there was a l ack of procedural fairness because the Tribunal failed to provide adequate reasons for rejecting or not engaging with material issues argued in the appellant ’ s final written submissions (Ground 2 in Notice of Appeal). “ The Ghost Contract ” – the Tribunal erred in law by making a f inding in the absence of evidence (Ground 2 in the March submissions). The Tribunal erred by finding the Pre-Development Application Form was provided to the appellant and by treating it as ‘ the governing contractual instrument ’ . Related to this ground, the appellant says the Tribunal misapplied the legal principles regarding contract formation (Ground 5 in Notice of Appeal). “ Mischaracterisation of Misleading C onduct ” – the Tribunal erred in law by failing to apply the tests in ss 4, 18, 29 of the ACL, and instead ‘ resolved the Appellant ’ s misleading conduct case through a contractual lens ’ (Ground 3 in March submissions ). The Tribunal applied the i ncorrect legal test in removing Mr Cust as second respondent (Ground 5 in the March submissions). Scope and nature of internal appeals Section 80(2)(b) of the NCAT Act states that an appeal may be made “ as of right on any question of law, or with leave of the Appeal Panel, on any other grounds ” . A question of law In Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]-[40] esp at [30]-[32] ( Cusumano ), the Appeal Panel revisited non-exclusive instances of errors on questions of law. At [33] the Appeal Panel that the categories of questions of law are "not closed" and at [37] stated: “What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen (1968) 118 CLR 186 at 194; [1968] HCA 51.” In the course of analysis and by reference to extensive authority, the Appeal Panel in Cusumano referred to the following examples, among others, which constituted questions of law of potential relevance to this appeal: whether a wrong principle of law or a wrong construction of a contract had been stated; whether there was a failure to provide adequate reasons; whether there was a failure to take into account relevant considerations or a taking into account of irrelevant considerations that were integral in a proper exercise of jurisdiction; whether there was a failure to afford procedural fairness. A pure question of law can be decided without any reference to the facts or may proceed by reference to assumed facts. Pure questions of law must be questions whose character as a question of law can be recognised on the face of the question and which do not depend upon the answer given to the question but does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts: Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [48] and [109]. Leave to appeal For appeal grounds which do not raise questions of law, leave to appeal is required. In appeals from a decision of the Consumer and Commercial Division, cl 12(1) of Sch 4 of the NCAT Act provides the following further limitation: 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). Even if an appellant establishes that the y may have suffered a substantial miscarriage of justice within cl 12(1) of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). As to this discretion, i n Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal conducted a review of the relevant authorities at [65]-[79] and concluded at [84](2) that: “Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal’s decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.” Self-represented appellants The appellant was self-represented at the Appeal Hearing, and before the Tribunal below. As the Appeal Panel explained in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: “It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant’s stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.” Was there a constructive failure to exercise jurisdiction and/or denial of procedural fairness ? The Appeal Panel in Cusumano at [32] stated that this ground raises a question of law: “Whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice, that is, procedural unfairness. Alternatively, it may also constitute a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [6], [20]–[22] (Basten JA).” Accordingly, leave is not required . In Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 , the members of the New South Wales Court of Appeal (Basten JA, Macfarlan JA and Leeming JA) in separate judgments explained the principles applicable to the constructive failure to exercise jurisdiction . At [6] Basten JA said : “The premise underlying a “constructive” failure to exercise jurisdiction is that there has been an apparent exercise of the jurisdiction of the court, but one that has failed in a way which can only be teased out by reference to the underlying issues and the materials presented to the court. It may then be demonstrated that a material issue presented for determination has not been resolved.” The Tribunal ’ s reason s set out the ‘ relevant legislative framework ’ including the ‘ relevant consumer guarantee ’ , which the Tribunal identified as s 60 of the ACL (due care and skill). From [49] to [73] the Tribunal considered each of the alleged failures of the respondent to comply with the guarantee in s 60 and dismissed each of them. The appellant ’ s Points of Claim explicitly raised argument s of: M isleading or deceptive conduct - s 18 ACL; Fail ure to provide services fit for a disclosed purpose - s 61 ACL; Fail ure to provide services within a reasonable timeframe - s 62 ACL; Un conscionable conduct - s s 21 and 22 ACL; Unfair contract terms – s 23 ACL; Breach of fiduciary duty . The appellant ’ s final written submissions reiterated the arguments regarding misleading or deceptive conduct, unconscionable conduct and breach of the guarantee in s 62 and explicitly raised an argument of f alse or misleading representations about goods or services ( s 29 ACL ). The Tribunal ’ s reasons only dealt with the claim pursuant to s 60 and ma de no reference to any of the other arguments identified in [ 33 ] and [ 34 ] above. Th ose other arguments were clearly raised and articulated in detail by the appellant. There was no apparent exercise of jurisdiction in respect of the appellant ’ s claims other than s 60 : w e are satisfied the Tribunal failed to deal with those arguments at all . This amounts to a constructive failure to exercise jurisdiction which can also be characterised as a a denial of procedural fairness. The Tribunal ’ s failure to deal with those arguments was clearly material to the outcome: Deter mination of whether the respondent had breached the other guarantees identified by the appellant was critical to the finding as to whether there was a “ major failure ” under s 268 of the ACL ; Determination of whether there were unfair contract terms was critical to the question of whether the contract was enforceable; Determination of the claims regarding misleading or deceptive conduct and unconscionable conduct was critical to the appellant ’ s claim for damages. Accordingly, we uphold this ground . Because we have found there was an error on a question of law which materially impacted the Tribunal ’ s decision regarding the claims pursuant to ss 18, 21, 23, 29, 61 and 62, there is no utility in considering the other grounds of appeal regarding those provisions, including the “ Mischaracterisation of Misleading Conduct ” ground. Did the Tribunal err by finding the Pre-Development Application Form was provided to the appellant and by treating it as ‘the governing contractual instrument’ ? Did the Tribunal misappl y the legal principles regarding contract formation? In paragraphs [30] to [48] the Tribunal considered the terms of the contract between the parties, specifically the services provided by the respondent : The appellant ’ s evidence was that the respondent provided her with a document entitled “ Founder Journey ” before she engaged its services and that document , together with certain text on the respondent ’ s website, formed part of the contract . The respondent submitted the “ Founder Journey ” document was simply a high-level overview of its services and did not form part of the contract, and that what appears on its website is advertising and did not form part of the contract. The respondent argued the terms of the contract were contained in 2 documents: t he Accelerate Application Form ( “ AAF ” ) and the Pre-Development Application Form ( “ PDAF ” ). The respondent relied on a “ SignRequest ” log which the Tribunal accepted showed the AAF was emailed to the appellant prior to the commencement of work . The appellant gave evidence she had never seen the PDAF prior to the Tribunal proceedings. However, t he Tribunal found the PDAF was also sent to the appellant prior to the commencement of work . A lthough a “ SignRequest ” log for the PDAF was not in evidence, the Tribunal made the finding based on evidence of the respondent ’ s usual business practice, and the fact the AAF had been sent to the appellant. The Tribunal found the contractual terms were found in the AAF and PDAF, and not in the Founder Journey documents. The Tribunal said it was common ground that the appellant “ signed up to and was a participant ” in the AAF and PDAF programs. Citing Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd [1988] 14 NSWLR 523 ( “ Empirnall ”) , the Tribunal found that by instructing the respondent to proceed with the Accelerate Program and the Pre-Development Program, the appellant accepted the terms of the AAF and PDAF by her conduct. In Attachment A to the Notice of Appeal, the appellant states: “19. Notwithstanding the absence of evidence of communication of the Pre-Development Application Form to the Applicant, the Tribunal inferred that it was “more likely than not” that the document had been sent based on the Respondent’s asserted usual business practice and then treated its contents as binding on the Applicant. 20 . It is an error of law to find that a consumer has accepted onerous written terms “by conduct” where there is no evidence that those terms were ever communicated to the consumer, or that the consumer had a reasonable opportunity to consider and reject them. The inference drawn in [47] rests on speculation rather than evidence. 21. The Tribunal therefore misapplied the legal principles concerning contractual incorporation and acceptance by conduct, and its finding as to the governing terms of the Pre-Development phase is affected by error of law.” The appellant did not identify the legal principles concerning contractual incorporation and acceptance by conduct which she says the Tribunal misapplied. We can see no error in the Tribunal ’ s application of the relevant law in this regard. While the appellant characterises this ground as raising an error of law, we are of the view that it raises an error of mixed fact and law requiring leave to appeal . It is not correct that there was no evidence to support the Tribunal ’ s finding that the terms of the PPAF were not communicated to the appellant. The Tribunal ’ s reasons show it relied on evidence of the respondent ’ s usual business practice and , based on the fact the AAF had been communicated to the appellant, it drew an inference the PPAF had also been communicated prior to the appellant providing instructions to proceed with the Pre-Development Program. There is no legal requirement that the respondent produce “ objective evidence ” such as a transmission log, digital audit trail or signed acknowledgement. The challenge for the appellant is that all the evidence given to the Tribunal at the hearing is not before the Appeal Panel. At the callover on 30 January 2026 the Appeal Panel ordered that the appellant lodge with the Registry all the evidence given to the Tribunal at first instance on which she intended to rely at the Appea l, as well as a typed transcript of the hearing, if the appellant relied on what happened at the Tribunal hearing. The appellant relies on short extracts from the transcript to support her appeal. Without all the evidence that the Tribunal considered at first instance and without a complete transcript which puts the extracts in their full context, we cannot conclude that the Tribunal made findings for which there was no evidence. For the same reason s , we cannot conclude that the finding the PPAF formed part of the contrac t is not fair and equitable, noting that whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness. Further, for the reasons set out above as to the criteria for the exercise of the discretion to grant leave to appeal, we are not satisfied that the appellants ’ case fits within any of the categories set out in cl 12 of Schedule 4, as elaborated upon by the Appeal Panel in Collins . We refuse leave to appeal on this ground. Did the Tribunal apply the incorrect test regarding the removal of Mr Cust as second respondent ? Because the Tribunal constructively failed to exercise its jurisdiction regarding the appellant ’ s claims pursuant to ss 18, 21, 23 of Chapter 2 , and s 29 of Chapter 3 (did she plead s 29?) , it also failed to deal with provisions relevant to those claims , as follows. Section 236 of the ACL provides: 236 Actions for damages (1) If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention. S ection 2 defines ‘ involved ’ : involved : a person is involved, in a contravention of a provision of this Schedule or in conduct that constitutes such a contravention, if the person: (a) has aided, abetted, counselled or procured the contravention; Or (b) has induced, whether by threats or promises or otherwise, the contravention; or (c) has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or (d) has conspired with others to effect the contravention. Section 74 of the FTA provides relevantly: 74 Actions for damages and compensation orders (3) The Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a local contravention or a contravention of Chapter 2 or 3 of the ACL if that matter arises in connection with another matter the subject of proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum, and make such ancillary orders, as it thinks fit. The claimed loss suffered as a result of Mr Cust ’ s alleged conduct arguably arises in connection with other matters before the Tribunal, namely the breach of consumer guarantees, regarding which the Tribunal, correctly, found it did have jurisdiction. The Appeal Panel is satisfied that the manner in which the Tribunal dealt with the appellant ’ s claim regarding Mr Cust amounted to a constructive failure to exercise jurisdiction. Whether or not the appellant, who was self-represented, pleaded all of the above issues explicitly at first instance, her allegation that Mr Cust was “ a shadow director and/or the main controller of the First Respondent ’ s business ” raised t issues about his role as material issue s which were never considered nor resolved. We allow the appeal on this ground. Disposition of the appeal Under s 81 of the NCAT Act, in determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for the decision under appeal to be varied (s 81(1)(b)), or quashed or set aside and another decision substituted for it (s 81(1)(d)). W e have upheld the appeal on all grounds, with the exception of the ground regarding the terms of the contract . It follows that the Tribunal ’ s findings regarding the terms of the contract between the parties stand . As a result, t he Tribunal ’ s findings and determination regarding the consumer guarantee in s 60 of the ACL also stand. The balance of the appeal is remitted to the Tribunal for rehearing. The Appeal Panel notes the extensive documentation which has been filed on appeal and, as we understand, in the proceedings at first instance. In deciding whether it is appropriate to allow the parties to file further evidence on remittal, the Tribunal will consider its guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36(1) NCAT Act). Orders The Tribunal makes the following orders: The appeal is allowed in part. The orders of the Tribunal of 28 November 2025 are set aside. The matter is remitted to the Consumer and Commercial Division of the Tribunal for redetermination in accordance with these reasons on such further evidence , if any, as the Tribunal considers appropriate . ********** 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: 28 August 2026