Author: Mark Fletcher

OnQ, the parent of the collapsed Bill Express company, has announced the appointment of administrators.  This move was only a matter of time given once Bill Express collapsed.

I am a creditor of OnQ as are most newsagents.  The Agreement I signed commits the company to paying rebates as outlined in Schedule D attached to the Agreement.  While the company will claim that it varied the Agreement, I’d like to hear how a judge views that.  In the meantime, I’ll register as a creditor.  If I get a form for this I will post it here.

I will be interested to see what happens now with ETT, a public company 43% owned by Bill Express.  If it collapses that will be three related  ASX listed companies collapsing.

On the weekend I checked my Bill Express and Mobius equipment agreements and noticed that the document version markings, in fine print on the lower left corner of each page, matched.  These common markings link the Bill Express and Mobius equipment finance agreements.

Much has been made about these agreements being separate.  The ANF in its communication to newsagents makes it clear they view the agreements as separate.  While I am no lawyer, I would have thought that a court would find it relevant to its considerations that agreements intended to be separate would have the same version markings.

The status of these agreements is of grave concern to newsagents across the country.  It concerns me that not enough is being done by the ANF to address this situation.

A Victorian newsagent wrote to his bank a week ago seeking a refund of the funds taken from his account by Mobius for the Bill Express equipment. His letter sought the refund on the basis that the direct debit authority he signed for the Bill Express equipment was in favor of Technology Business International. Yesterday morning, checking his account, the newsagent found that his bank had refunded payments it has deducted without his authority since March this year.

This is a tremendous outcome.  Good on the bank for realising that it did not have the right paperwork to allow such a withdrawal.

At Networked Knowledge Dr Robert N Moles publishes material about alleged serious miscarriages of justice.  In one post, Contract Law Lecture, Moles writes about contracts and reasons for termination.  In citing the case of Foley v. Classique Coaches Ltd, Moles writes:

A problem will arise if the machinery provided for in the contract breaks down for reasons over which the parties have no control. The traditional common law rule was that if the means for ascertaining the price failed, there could be no contract.

Newsagents entered in to a contract to finance equipment to operate the Bill Express and DialTime services, at the same time they entered into a separate contract for the provision of the Bill Express / DialTime services.
I am sure the legal experts representing newsagents are looking carefully at the status of the finance contracts given that the purpose of the machinery provided under the contracts contract has failed.

I have been contacted by several newsagents in the last 24 hours about the role of the ANF in promoting Bill Express to new newsagents at the ANF run newsagents training course. In each case they say the ANF participated with Bill Express employees in promoting Bill Express to new newsagents. This included talking up the rebates. I am told there was no mention that the rebates could be removed at any timer.

One newsagent told me that they explicitly asked the ANF representative if the ANF had checked Bill Express out. The answer was they had and that it was a good deal. The ANF staffer did not disclose that they worked for an organisation which made a commission from its endorsement of Bill Express.

Keeping its own arrangement secret meant that newsagents did not have all relevant facts when considering the advice on the ANF on Bill express.

Some associated with the ANF put it about that I am obsessed with the organisation. This is not the case. I am concerned that the ANF did not disclose its own commercial relationship with Bill Express each time it promoted Bill Express to newsagents.  I have put these and other issues to the organisation and it has not responded.

The QNF has sent information to its members yesterday about the communication newsagents have received from Mobius Financial Services Pty. Limited about the Bill Express equipment. Below is the information provided by the QNF.

As convenor of the NSW newsagent’s class action, NANA has received the following advice which we have forwarded on to Qld Newsagents:

1. You are NOT required to keep making payments to anyone in relation to the equipment rental.
2. The Mobius FAQ sheet is seriously misleading, deceptive and misstates the position.
3. The claims by Mobius FAQ and the letter that the equipment rental company has assigned its rights may or may not be correct, but it is impossible to tell from the documentation. What has been said raises more questions that it provides answers. The assignment claim should at this stage be regarded as irrelevant.
4. The current advice states that participants of the class action NOT make payments; if you wish to participate please contact us on (07) 3862 7100
5. As we have said previously, if any party attempts to bring recovery action against any of our participant newsagents, the group will bring proceedings to protect their position. We think it is very unlikely that this will be necessary. However, our solicitors are in regular contact with the receivers.

This advice contradicts advice provided by the ANF to newsagents late yesterday. Actually, the ANF did not provide advice, it called for expressions of interest in funding action around the equipment leases. Newsagents are angry that the ANF is asking for newsagents to fund action by the ANF given that the ANF earned in excess of $1 million in revenue in relation to the these agreements which are not set to be challenged. Newsagents I have spoken with would like the ANF to commit some of the $1 million plus it earned toward getting advice on this matter.

Page 2.2.1 of the Newsagent Manual published by the Australian Newsagents’ Federation and provided by the Association to new newsagents attending mandatory training is all about Bill Express. Here is some of what is in a manual provided by the ANF just over a year ago:

Bill EXPRESS is owned and managed by DialTime, an experienced technology company that forms part of the OnQ group of companies. DialTime is an expert in over-the-counter transaction systems and specializes in delivery of electronic pre-paid services to retailers.

The concept comes with a commercial package for newsagents and additional benefits available to Members of the Australian Newsagents’ Federation. Benefits to ANF members include:

• A new revenue source from bill payment.
• EFTPOS through ANZ at leading industry rates and zero debit card fee for any transaction volumes.
• Electronic pre-paid mobile phone and telecommunications product through DialTime.
• The option of a national advertising screen designed to increase sales.
• A comprehensive electronic retailing platform designed to evolve into the future.
• Additional financial benefits.

This ANF documentation further demonstrates the conflict of the industry association in representing newsagents and fulfilling their contractual obligations to Bill Express / DialTime.