Colin Mitchell t/as Mitchell Family Removals v Crumblin (Civil Dispute)
[2016] ACAT 2
•13 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COLIN MITCHELL t/as MITCHELL FAMILY REMOVALS v CRUMBLIN (Civil Dispute) [2016] ACAT 2
XD 15/688
Catchwords: CIVIL DISPUTE – verbal contract for services – payment in kind – evidence as to party’s credibility – failure to use prescribed form – substantial compliance
Legislation cited:
ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 6, 7, 8, 16, 17, 26, 56, 117
Evidence Act 2011 (ACT) s 102
Legislation Act 2001 (ACT) s 255
List of
Texts cited:Paterson, Robertson and Duke, Principles of Contract Law (Thomas Reuters, 4th ed, 2009)
Tribunal: Senior Member E Ferguson
Date of Orders: 13 January 2016
Date of Reasons for Decision: 13 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL XD 688/2015
BETWEEN:
COLIN MITCHELL t/as MITCHELL FAMILY REMOVALS
Applicant
AND:
WAYNE CRUMBLIN
Respondent
TRIBUNAL: Senior Member E Ferguson
DATE: 13 January 2016
ORDER
The applicant’s application is dismissed.
The respondent’s counterclaim is dismissed.
………………………………..
Senior Member E Ferguson
REASONS FOR DECISION
The Agreed Facts
The applicant operates Mitchell Family Removals, a business involved in transporting household contents and other goods both within the ACT and interstate.
The applicant’s business is based in the Parkwood industrial estate, a light industrial area located on Parkwood Road, Holt in the ACT.
The respondent runs a business called AVGAS Autos, which supplies specialist auto parts.
The respondent has a workshop on the Parkwood industrial estate where, amongst other things, he does metal work.
The applicant owns several go karts at least one of which he races.
The parties agree that on six separate occasions between 19 November 2013 and 10 June 2014 the applicant’s business transported certain goods to or from certain interstate locations for the respondent. It also agreed that the respondent paid no money to the applicant for these services.
The Issue
The central issue for determination by the Tribunal is what the parties agreed the respondent would give to the applicant in return for the transport of the goods.
The applicant says the parties expressly agreed the respondent would pay certain sums of money.
The respondent says it was expressly agreed he would pay in kind by way of making repairs to the applicant’s go karts as and when requested and that the applicant would pay for any parts required.
The Proceedings
On 9 June 2015 the applicant filed a debt application in the tribunal seeking $3,916.62 being the debt claimed of $3,520.00, the filing fee of $135.00 and statutory interest to the date of filing of $261.62.
On 13 July 2015 the respondent filed his response disputing the applicant’s claim.
On 29 September 2015 the tribunal set a timetable for the parties to file an amended application, a response, submissions, written timelines of the events, written statements by every witness and expert reports and “any invoices, quotes, receipts, photographs, emails and other material (the parties) relied upon.”
On 19 October 2015 the applicant filed the required documents. As he chose to rely on his original application he did not file an amended application.
On 3 November 2015 the respondent filed the required documents.
Amongst the documents filed by the respondent on 3 November 2015 was an undated document titled ‘Statement of Wayne Crumblin’ which included the following paragraph:
Should the applicant continue to pursue this claim for expenses and disregard our gentleman’s agreement I would be agreeable to the payment of $788.69 only, however I will then be claiming my expenses for services rendered on his go karts, that being $5454.65 plus GST, and administration costs.
The applicant treated the respondent’s statement referred to in the preceding paragraph as intended as a counter claim (the intended counter claim).
At the hearing, the applicant confirmed that he had intended to add a counter claim, notwithstanding that the document he filed did not comply with formal requirements and he paid no filing fee.
On 10 November 2015 the applicant filed a response to the intended counter claim and six additional witness statements, which the applicant claims, related to the intended counter claim and to other new material raised in the respondent’s documents filed on 3 November 2015.
The Hearing
The matter was heard on 11 November 2015. Mr Silk, solicitor represented the applicant, the respondent represented himself.
Both parties tendered a large number of documents including witness statements.
At the hearing, the parties both gave evidence and were cross-examined. The only other witness to appear in person was Gary Haywood who gave evidence and was cross-examined.
Five of the witnesses who had provided written statements attended by phone, at the applicant’s request, to give evidence and were cross-examined.
The respondent relied on the witnesses’ statutory declarations he had previously filed.
After hearing submissions from the parties the Tribunal reserved its decision.
Jurisdiction
The tribunal is a statutory body established by the ACT Civil and Administrative Tribunal Act 2008 (‘ACAT Act’) and has only such jurisdiction and powers as are conferred on it by the Legislature.
The tribunal has jurisdiction over this matter under section 17 of the ACAT Act by virtue of it being a civil application in relation to a contract and a debt as both defined by section 16 of that Act.
The Law
A contract is a legally enforceable agreement. To be legally enforceable it is necessary to establish:
(a)an agreement freely entered into by legally capable parties. This can either by way of an offer made by one party which is accepted by the other; or at least a shared understanding that one party will do or promise to do a certain thing in return for the other party doing or promising to do a certain thing;
(b)the thing given or promised must be of value that is either or both a loss to the giver and a benefit to the recipient;
(c)the parties intend their agreement to be legally binding; and
(d)the agreement between the parties on essential terms must be certain and complete.
Most types of contract may be either wholly or partly in writing, or verbal. There is no legal requirement that a contract of the type in this case be in writing or signed by either party.
The existence and terms of a verbal contract can be established by evidence of the parties’ conduct and communications.
The applicant’s documentary evidence
The applicant submitted the following documents:
(a)Six documents titled ‘Tax Invoice/Receipt’ which the applicant described as ‘run sheets’, the contents of which correspond to the deliveries the parties agree the applicant performed for the respondent. The Tribunal will adopt the applicant’s description ‘run sheets’ for consistency and to distinguish them from the invoices referred to at sub paragraph (b) below. Each contained the following particulars:
i. Customer’s name
ii. Starting address (date) and destination
iii. Description of goods (except for the delivery dated 19 November 2011)
iv. Price including GST
v. There was a section to be signed by the customer accepting the terms of carriage, including price, and a section to be signed and dated by the recipient to acknowledge the goods were received in good order.
(b)A number of invoices, which correspond with the information in the run sheets but which did not contain an address for the respondent.
(c)A number of letters of demand from the applicant to the respondent none of which contained a date or an address.
The parties contentions
The applicant contends that:
(a)before the applicant performed the first job in November 2013 the respondent asked whether the applicant was interested in transporting car parts from state to state because the service the respondent had been using was too expensive;
(b)the following conversation ensued regarding the applicant’s price structure:
I said to Wayne words to the effect of “I charge a minimum of $550.00 inclusive of GST and transit insurance for anything under 1 cubic metre and over that I would charge a cubic metre rate would apply (sic) which vary from state to state.”
Wayne Crumblin said words to the effect of, “that sounds reasonable”.
(c)the respondent subsequently engaged the applicant to transport goods for him on six occasions;
(d)the applicant created a run sheet in relation to each job he performed for the respondent, which he asked the respondent to sign;
(e)he invoiced the respondent after each job based on the information in the run sheet;
(f)when the invoices remained unpaid he eventually started sending letters of demand and throughout 2014 made several verbal requests for payment;
(g)the correspondence was sent to what the applicant described as the respondent’s ‘Parkwood address’ being a communal letterbox on the industrial estate available for the use of all tenants; and
(h)in May 2015 he engaged Capital Collections, a debt recovery agency, to recover the debt. When it remained unpaid he commenced these proceedings.
The respondent contends that:
(a)before every job the parties discussed payment for that job;
(b)on each occasion the discussion ended in a verbal agreement, at the applicant’s insistence, that no money would change hands but instead the respondent would pay in kind by working on the applicant’s go karts as and when required by the applicant with the applicant responsible for the cost of any parts required;
(c)by agreement no paperwork or invoices were provided; and
(d)pursuant to the agreement the respondent worked on the applicant’s go kart(s) as follows:
i. January or February 2014- 8 hours work on applicant’s go kart
ii. March 2014 – 4.5 hours work on applicant’s go kart.
iii. In or about July 2014 - 20 hours work on the applicant’s go kart. The respondent admits he was ultimately unable to repair the kart.
iv. Contrary to their agreement the applicant failed to either supply or reimburse him for the cost of parts.
The applicant admits that the respondent did some work on a go kart for him in or about February 2014 but disputes the extent of the work and says he paid the respondent the agreed amount in full. He also admits that the respondent unsuccessfully attempted to fix his kart in or about July 2014 but says the respondent only worked on it for a short period.
The respondent denies ever seeing run sheets or receiving the invoices, letters of demand or verbal requests for payment from the applicant.
The respondent claims that he never used the Parkwood address as the communal letterbox was some distance from his workshop, and his business address was a PO Box that appeared on his letterhead and website. He produced material from website and his letterhead in support.
He claims that the first time the applicant raised the alleged debt with him was on 30 April 2015 when the applicant assaulted him and demanded payment.
It is not disputed that on 2 May 2015 the applicant sent the respondent an sms text message demanding payment and threatening to refer the matter to debt collectors if he was not paid by following day.
The applicant says Capitol Collections sent a letter of demand dated 6 May 2015 to the respondent at the Parkwood address.
The respondent initially said he did not receive the letter from Capitol Collections but conceded at the hearing it may have been handed to him by another tenant but he did not open it because he believed it was sent to the wrong address so was not intended for him.
The Tribunal notes that in any case within a week Capitol Collections established contact with the respondent through phone calls and emails and he promptly responded denying liability.
The applicant’s credibility
The respondent claims that he and the applicant had a serious falling out towards the end of 2014 unrelated to the current dispute and that the applicant was motivated by malice to fabricate the current claim.
The respondent also challenged the general credibility of the applicant.
He produced evidence of the applicant’s Facebook posts in which he says the applicant misrepresented himself in a number of ways and identified himself with Mark ‘Chopper’ Read, a person convicted of serious criminal offences.
He also produced a statutory declaration from Paul Humphries in which Mr Humphries gave a negative assessment of the applicant’s character and honesty.
The applicant asserted that the evidence adduced showed the applicant was dishonest and of bad character and that the Tribunal should draw an adverse inference as to his credibility in the current case.
The Tribunal notes that such evidence may not be admissible in ACT Courts by virtue of section 102 of the Evidence Act 2011. However section 8 of the ACAT Act makes it clear that the Tribunal is not bound by rules of evidence and goes on to provide at section 26 that it may inform itself in any way it considers appropriate.
The respondent’s evidence referred to at paragraphs 43 and 44 is only relevant to assessing the general credibility of the applicant and not his credibility in relation to specific facts or issues in dispute this case. As such the Tribunal considers it of little probative value and prefers evidence directly relevant to the issue or facts in dispute.
On 1 May 2015 the respondent applied to the ACT Magistrates Court for a Protection Order against the applicant.
In June 2015 the Magistrates Court proceedings were resolved by the parties giving mutual undertakings to the Court without admissions.
As the grounds of the respondent’s application to the Magistrates Court were neither admitted by the current applicant nor tested by the Court the only relevance those prior proceedings can have to this case is that they indicate a high level of conflict between the parties. The Tribunal can draw no conclusion as to whether this conflict was either the cause or the result of, or unrelated to, the current dispute.
Consideration and findings
The Tribunal finds that each party’s description of the facts is capable of giving rise to an enforceable contract or series of contracts.
The parties understood that price was critical to the respondent. According to the applicant this was the reason the respondent gave for approaching him. Price is therefore an essential term of the contract.
If the Tribunal accepts the applicant’s version of events it concludes that:
(a)at the preliminary discussion about the applicant’s price structure the applicant did not specify his rates for consignments larger than one cubic metre or his particular rates for each state;
(b)at this stage it was only possible for the respondent to calculate the applicant’s price for consignments of one cubic metre or less transported within the ACT. This information was insufficient as the respondent made it clear that he only intended to engage the applicant to transport goods to or from interstate;
(c)at the preliminary discussion the parties only agreed that, should the respondent use the applicant to transport goods, he would pay him a fee, not less than $550, to be agreed in future. It is well established that where the parties have agreed to fix the price themselves it is not open to the Tribunal to imply a reasonable price. As explained in Principles of Contract Law[1]:
Where the parties have agreed to reach agreement on price in the future, the implication of an obligation to pay a reasonable price would be inconsistent with the expressed intention of the parties, which is to set the price themselves.
(d)As there was no agreed mechanism for fixing the price the contract for each job could only become complete and enforceable when the parties agreed on a price for that job; and
(e)The price for the job was specified in the run sheet provided to the customer and the contract for each job was therefore completed by the customer accepting the price, either by signing the run sheet or by conduct.
The applicant’s normal procedure
[1] Paterson, Robertson and Duke, Principles of Contract Law (Thomson Reuters (Professional) Australia, 4th ed, 2009)
The applicant says that the customer was always asked to sign the run sheet, sometimes they did and sometimes they did not.
Mr Haywood, an employee of the applicant, told the Tribunal that if they were present, the customer and the recipient would sign the run sheet in 99% of jobs.
Ms Ash had not only worked for the applicant briefly but also once engaged him to transport goods. She gave evidence that as a customer she had signed a run sheet when the goods left Sydney. As she was not present when her husband received the goods in Canberra she was unable to say whether he also signed.
The applicant gave evidence that after each job he would generate a tax invoice and send it to the customer by surface mail for payment. Other evidence suggests that it may instead have been the applicant’s wife who attended to the paperwork but nothing turns on it.
It is clear that the applicant occasionally made exceptions to his normal practice. Shane Richardson, a repeat customer of the applicant, gave evidence that his dealings with the applicant involved minimal paperwork and no run sheet. He told the Tribunal:
(a)jobs were arranged and the price agreed verbally usually by telephone;
(b)he mostly engaged the applicant to deliver goods to him rather than sending goods himself;
(c)he did not remember ever signing any document when the goods were delivered; and
(d)he paid the applicant cash on delivery for which the applicant provided a receipt. Sometimes a hand written invoice was provided.
Based on the weight of evidence the Tribunal concludes that the applicant’s normal procedure was to require the customer to sign the run sheet to accept the terms of carriage, including price. This would happen either at the time of uplift if the customer was sending the goods, or at the time of delivery if he or she were receiving the goods.
Whoever received the goods would sign and date the run sheet to confirm when the goods were received and that they were received in good condition.
The applicant gave evidence at the hearing that he created a run sheet in relation to each of the jobs he did for the respondent.
The Tribunal notes that the respondent signed none of the run sheets submitted by the applicant. The only signature that appears on any of the run sheets is for the delivery from the respondent’s address to Nerang, Queensland on 19 November 2013. An unidentified person has signed to confirm the goods were received in good order.
At the hearing when questioned the applicant said he repeatedly asked the respondent to sign the runs sheet to comply with legal requirements but he refused to do so.
The Tribunal is not satisfied by the applicant’s explanation of the absence of the respondent’s signature on the run sheets.
The Tribunal concludes that the applicant normally dealt with his customers in the formal well documented way described above and when he did both, the customer and the recipient of the goods would almost always sign the run sheet.
The absence of signatures on the run sheets, particularly that of the respondent, is significant as the applicant’s documentary evidence paints a picture of scrupulous compliance with other aspects of his normal procedure.
Mr Richardson’s evidence indicates that the applicant would sometimes depart from his normal practice and conduct business with certain customers verbally with minimal documentation and no run sheet.
On the basis of logical appeal the Tribunal prefers the respondent’s evidence that the parties reached an informal verbal agreement in relation to each job and that by agreement no run sheets or invoices were used.
The question remains whether the parties have a verbal agreement about price in the terms claimed by the applicant?
The applicant has relied heavily on the documentary evidence, particularly the run sheets, to support his claim that the respondent agreed to pay a certain sum of money for his services. As the Tribunal does not accept this evidence it is not satisfied that the applicant has proved the central element of his case.
The Tribunal prefers the respondent’s evidence that the work he did for the applicant in January or February 2014, and again in July 2014, was performed as the agreed payment for the applicant’s services.
There is insufficient evidence to establish that the respondent performed the work he says he did for the applicant in March 2014.
The counter claim
Section 117 of the ACAT Act requires that where there is a prescribed form a party must use it. The respondent’s statement referred to in paragraph 15, although intended to take effect as an amended response and counter claim, is not in the prescribed form for either.
The Tribunal finds that although the intended counter claim is not in the prescribed form it substantially complies with that form and is therefore valid under section 255(4) of the Legislation Act 2001.
The Tribunal is not obliged to deal with the respondent’s counter claim as he has not paid the required filing fee and it has not been waived.[2] This failure may be due to his initial failure to use the proper form which alerts claimants to the requirement to pay a fee. In the circumstances the Tribunal is prepared to consider the counter claim notwithstanding no filing fee has been paid.
[2] see section 57(3) of the Legislation Act 2001
The applicant recognised and responded to the respondent’s statement filed on 3 November 2015 as a counter claim and therefore he did not suffer prejudice as a result of it not being in the prescribed form.
The objects of the ACAT Act set out at section 6 promote efficiency and access to justice. These objects are generally best served by the Tribunal hearing claims which arise from the same set of facts together.
The respondent’s case could be reasonably construed as:
(a)his first line of defence contained in the original response, that is that the respondent is not liable, on the grounds that he never agreed to pay the applicant money as alleged or at all; and
(b)should the Tribunal find the respondent liable to pay the applicant a sum of money, the following alternative defence and counter claim:
i. the respondent disputes the amount claimed by the applicant. The respondent contends that no price was expressly agreed and therefore the Tribunal should find an implied term to pay a reasonable price. He asserts the amount claimed by the applicant is excessive and that a reasonable price for the services provided by the applicant is $788.69; and
ii. the respondent counterclaims for the value of his work and materials described at paragraph 15 being $5454.65 plus GST, and administration costs. The respondent concedes that the applicant never agreed to pay him any sum of money for his labour.
If the respondent only intends to rely on his amended response and counterclaim if the Tribunal finds him liable to pay a sum of money to the applicant, the Tribunal need only consider the counterclaim if it rejects his preferred defence.
It is by no means clear that the respondent only intended to resort to his counter claim if the Tribunal found him contractually bound to pay the applicant something. Therefore, the Tribunal considers it prudent treat the counter claim as unconditional and so live.
Turning to the substance of the counter claim the Tribunal finds as follows.
i. The respondent has failed to establish any legal basis for his claim for the cost of his labour whether in contract or otherwise as he admits there was no agreement that the applicant pay him for his labour.
ii. At the hearing the respondent admitted under questioning by Mr Silk that he failed to raise his claim for payment for materials with the applicant until 3 November 2015 when he filed his counter claim.
- In light of the matters referred to in the preceding paragraph the Tribunal is not satisfied on the evidence that the applicant agreed to either supply, or reimburse the respondent for the cost of materials.
………………………………..
Senior Member E Ferguson
HEARING DETAILS
FILE NUMBER: | XD 688/2015 |
PARTIES, APPLICANT: | Colin Mitchell t/a Mitchell Family Removals |
PARTIES, RESPONDENT: | Wayne Crumblin |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | Jeffrey Silk |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member Ferguson |
DATES OF HEARING: | 11 November 2015 |
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