Cteck Hop Pty Ltd and ANOR v Nagle and ANOR (Appeal)
[2017] ACAT 92
•7 November 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CTECK HOP PTY LTD & ANOR v NAGLE & ANOR (Appeal) [2017] ACAT 92
AA 11/2017
Catchwords: APPEAL – considerations in dealing with an appeal from the decision of the Original Tribunal – hearing conducted as a review –additional evidence at appeal hearing from witness at original hearing not raised at original hearing – credibility of witnesses – no errors of fact – original decision confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Australian Consumer Law ss 20, 236
Subordinate
Legislation:ACT Civil and Administrative Tribunal Procedure Rules 2009 (No.2) r. 21
Cases cited:Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Law Society of the ACT & Treasury Directorate and NRMA Insurance [2013] ACAT 36
Mansour v Dangar 2017 ACAT 49
Metwally v University of Wollongong (No.2) (1985) 60 ALR 68
Mooney-Pursell v Commissioner for Social Housing [2016] ACAT 151
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Tribunal: Presidential Member E Symons
Date of Orders: 7 November 2017
Date of Reasons for Decision: 7 November 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 11/2017
BETWEEN:CTECK HOP PTY LTD
First Appellant
KENYON HOPKINS
Second Appellant
AND:CATHERINE NAGLE
First Respondent
CHRISTOPHER DANN
Second Respondent
TRIBUNAL: Presidential Member E Symons
DATE:7 November 2017
ORDER
The Tribunal orders that:
1.The application for appeal be dismissed and the order of the original tribunal is confirmed.
………………………………..
Presidential Member E Symons
REASONS FOR DECISION
1. The appellants appeal from an order of the Tribunal (the Original Tribunal) made on 7 March 2017 (in XD 825/2015) that they pay $6,526.54 to Catherine Nagle and Christopher Dann, (the applicants in XD 825/2015 and referred to as Ms Nagle, Mr Dann or the respondents in this decision). The $6,526.54 comprised $6,000 claim, $382.54 pre-judgment interest and $140 for the tribunal filing fee. In the application for appeal the appellants seek the following orders in which they refer to themselves as ‘the respondent’:
(a)The respondent is not to pay the claimant $6,000.
(b)The respondent does not pay $381.54 prejudgment (interest)
(c)Courts filing fee $145
(d)Reimbursement of Appeal Costs for matter XD 825/2016.
2.On 10 April 2017 the Appeal Tribunal ordered that the appeal be dealt with as a review of the original decision pursuant to section 82(b) of the ACT Civil and Administrative Tribunal Act 2008. Pursuant to order 2 the appellants were directed to:
(a)file in the registry of the Tribunal and serve on the respondents a written outline of the submissions, noting relevant evidence from the original hearing including references to the transcript of the hearing; and
(b)advise the Tribunal and the respondents in writing whether they intend to call any additional evidence at the hearing and, if so identify the form and nature of that evidence by 4.00pm on Friday 19 May 2017.
3.On 23 and 24 May 2017 the appellants filed with the tribunal a written outline of submissions and the following documents:
(a)Statutory Declaration from Diane Nowlan, office manager for the appellant business dated 24 May 2017.
(b)Statutory Declaration by Ken Roche dated 5 May 2017.
(c)First approval project No: 09795/A, Registration, Owner Builders Licence and Approved Plans. Pages 1-14.
(d)Second approval project No: B20144585 Re-Registration, Owner Builders Licence, Approved Plans and Certificate of Occupancy. Pages 1-8.
(e)Third approval project No: B20154955 Registration of existing works on existing house, Plans and Certificate of Occupancy. Pages 1-14.
(f)Copy of tax invoice 00008594 sent from TRINS TRUST to ACTPRO dated 25/10/2015 for $6,000 including GST $545.
(g)Sections 34, 35 and 36 of the Building Act 2004.
4.On 12 June 2017 the respondents filed their response to the appellants’ submissions.
5.On 26 June 2017 the Appeal Tribunal heard the appeal as a review of the original decision.
The decision under review
6.The hearing before the Original Tribunal took place over two days, 15 November 2016 and 8 February 2017. The respondents[1] represented themselves. Mr Hopkins represented himself and the company Cteck Hop Pty Ltd. He called evidence from Mr Ken Roche. Ms Nagle, Mr Dann, Mr Hopkins and Mr Roche gave evidence and were cross examined.
[1] Mr Dann and Ms Nagle
7.The following documents were exhibits:
(a)Exhibit A – house plan drafted by Western Drafting Pty Ltd dated 13 February 2009.
(b)Exhibit B - ACT Property Inspections Report dated 6 October 2015.
(c)Exhibit R1 – Tax Invoice 0000327 issued by Twins Trust to Mr and Ms Dann dated 17 February 2009 for $10,467.67.
(d)Exhibit R2 – Certificate of Occupancy and Use dated 11 November 2015.
(e)Exhibit R3 - Registration Acknowledgement dated 11 March 2009.
8.The civil dispute application sought $9,289 from Cteck Hop Pty Ltd and Kenyon Hopkins being $6,000 that the respondents paid to Mr Roche on behalf of Mr Hopkins pursuant to an agreement reached on 15 October 2015 between themselves, Mr Roche and Mr Hopkins as well as the sum of $3,289.00 which the respondents had paid to Mr Roche in 2015 for disbursements including government fees, plans and engineer expenses, which they alleged they had previously paid to Mr Hopkins in 2009.
9.In the response Mr Hopkins submitted that the claim in [8] above related to an amount which was claimed to have been paid in February 2009; was for works carried out in February 2009, more than six years ago; the receipt on the money transfer states the 18th of February 2019 which would appear to be false and misleading; the amount of $6,000 as per invoice 8594 which he had rendered to Mr Roche has never been paid to Trins Trust or Mr Hopkins and an amount of $5,289 which the respondents said they had paid to Mr Roche and $3,289 referred to in the preceding paragraph has never been paid to Trins Trust or to Mr Hopkins.
10.The Original Tribunal delivered an oral decision on 7 March 2017. In the decision the Original Tribunal identified the following four issues for determination:[2]
[2] Transcript of proceedings 7 March 2017, lines 35 - 44
The first issue that I will deal with is who the correct second respondent, is it Cteck Hop Pty Ltd or Trins Trust?
The second issue is the applicants’ claim for $3,289 being items on the invoice of Building Inspector Specialists Pty Ltd signed by its principal, Ken Roche;
The third issue is … should the applicants claim be allowed for a refund of $6,000 paid as directed by Ken Hopkins to Ken Roche and the issue did the applicants pay Ken Roche an extra $6,000 and under what circumstances was it refundable and was it refunded?And the fourth issue is, if Cteck is found responsible is [Ken Hopkins] personally jointly liable for the payment of any judgment.
11.In relation to the first issue, the Original Tribunal found that the correct second respondent was Cteck Hop Pty Ltd. This finding was not the subject of the appeal. The Original Tribunal disallowed the second issue as part of the respondents’ claim. This finding was not the subject of the appeal.
12.In relation to the third issue, which was the subject of the appeal, the Original Tribunal found:
In relation to the applicants’ claim for a refund of $6,000 paid to Ken Roche on behalf of Ken Hopkins, the first question is did the applicants pay Ken Roche the extra $6,000? I prefer the applicants’ version of the circumstances giving rise to this claim for a refund of $6,000 to that of Mr Hopkins as it was both more plausible and more consistent. I also prefer the applicants’ version of events to Mr Roche’s as it was more plausible. In the respondent’s evidence, and I am not convinced at all though the respondent relies upon the invoice he sent to Ken Roche for $6000. There was nothing to suggest that was a genuine transaction and the evidence of Mr Hopkins and Mr Roche was not convincing on this point.
I find Cteck through its director, Mr Hopkins demanded the payment of an amount of $6,000 and that amount be paid to Mr Roche in circumstances where the applicants had no reasonable option but to pay upon his promise, Mr Hopkins’ promise, that the sum would be refunded to the applicants if and when Mr Hopkins satisfied himself that the applicants had paid for original works in 2009.
In relation to the arrangement for the payment of $6000, either Mr Roche or his company ACTPRO, I am satisfied that they acted as an agent for Mr Hopkins and not an independent stakeholder because they were only able to release the money to the applicants on Mr Hopkins’ direction.
It is clear from the evidence, and it should have been clear to Mr Hopkins, that the applicants had prepaid the full amount of $10,467.67 for all the work to be performed as directed by him in his invoice in 2009. The fact that Mr Hopkins could apparently not tell from his own records whether he had been fully paid or not in 2009 and had at no time between 2009 and October 2015, claimed that the applicants owed him any money does not support his version of events. The record of this payment that the applicants obtained from their bank and supplied to Mr Hopkins in December 2015 contained an obvious error as to the date. It was a date that was not then in existence. And the applicants subsequently provided the respondent with a record rectified by the bank which supported their claim, and it was provided to Mr Hopkins on 2 February 2016.
I find that Mr Hopkins demanded $6000 in circumstances where the applicants were committed to the sale of their home and in no position to refuse and when they provided the evidence demanded by him he failed to direct Mr Roche to refund the money as agreed. I find that Mr Hopkins’ conduct was a contravention of section 20 of the Australian Consumer Law which prohibits unconscionable conduct in relation to goods and services. Cteck Hop Pty Ltd is liable for the actions of its sole director Mr Hopkins acting with its actual or apparent authority when engaged in this conduct and I find that the second respondent is vicariously liable on the basis of breach of contract because Mr Hopkins did not direct Mr Roche to refund the money in accordance with the terms of this agreement with Mr Dann and Ms Nagle.
I also find the second respondent, Cteck Hop, vicariously liable for damages under section 236 of the Australian Consumer Law for the contravention of section 20 of the Australian Consumer Law by Mr Hopkins as Mr Hopkins is the sole director of Cteck. The applicants can only receive compensation once for the same loss and I find they are entitled to recover the sum of $6000 to restore them as far as possible to the best position they would have been in had the amount been refunded to them in accordance with the agreement that they had with Cteck and Mr Hopkins.[3]
[3] Transcript 7 March 2017 page 3 line 30 to page 4 line 39
13.In relation to the fourth issue, which is the subject of the appeal, the Original Tribunal found:
…is Mr Hopkins personally liable? Well, you are probably both aware that a corporation provides a degree of protection from liability to its director. It is not an absolute protection. There are circumstances where directors can be found personally liable and this is one such circumstance. A director who has engaged in unconscionable conduct can also be held personally liable under section 236 of the Australian Consumer Law despite, as I say, the range of protections that are available to directors of companies in the Corporations Act.[4]
[4] Transcript 7 March 2017 page 4 line 44 to page 5 line 6
14.The appellants submitted, in relation to the third and fourth issues[5]:
[5] Issues 3 and 4; reasons for appeal attached to application for appeal
· A contract was never entered into between Dann and Hopkins for the approvals of 2015. The applicant engaged Mr Ken Roche to carry out approvals in 2015.
· Moneys were paid to Ken Roche on 16 October 2015 not CTECK Hop Pty Ltd or Kenyon Hopkins it was between Ken Roche or AAABIS & Dann.
· Mr Dann now works for the company which he paid $6,000 to and did work for Mr Roche it is unreasonable to expect a refund of monies never paid to the respondent.
· CTECK HOP PTY LTD and Kenyon Hopkins was not the appointed agent, the agent appointed by Dann & Nagle was Ken Roche or AAABIS. The applicant Dann is employed by Wise Construction which are the owners of AAABIS.
· All works that were requested by Dann & Nagle were carried out within the parameters of the ACT Building Act and Regulations by the respondent.
Appeals within ACAT – principles of law
15.In a recent appeal decision of the tribunal in Mansour v Dangar[6] (Mansour) published on 3 July 2017, Presidential Member Daniel set out the principles of law applicable to appeals within the tribunal. She stated:
[6] 2017 ACAT 49 [17] – [23]
17. The provisions of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) dealing with appeals within the tribunal are few, and briefly worded. The ACAT Rules add procedural guidance around the conduct of such appeals. Appeals are creatures of statute, and it is accepted that the legal principles developed in relation to appeals generally apply to appeals within the tribunal.
18. Under section 79(3) of the ACAT Act an appeal from a decision of the tribunal may be brought on a question of fact or law. This means that the appeal exists for the correction of error. Because of the statutory limitation to appeals on ‘a question of fact or law’ an inquiry into the existence of error is the initial focus of the appeal.
19. If an error is shown to have been made it is then necessary for that error to be material to the outcome in order for the appeal to be successful.
20. How is an appeal tribunal to decide if there is an error, and whether it was material to the outcome? Section 82 of the ACAT Act provides that the appeal tribunal may either deal with the appeal as a new application (a hearing de novo/new hearing) or as a rehearing (review). In deciding the correct approach to take, the appeal tribunal is required by the ACAT Act to adopt a procedure which is as simple, quick, inexpensive and informal as is consistent with achieving justice, and the requirements of procedural fairness. Other than containing these overarching requirements, the legislation does not dictate how the choice between a new hearing or a rehearing is to be made. It is nonetheless an important procedural distinction, which may have substantive consequences.
21. For a new hearing, established principles dictate that the hearing starts afresh. Evidence may be given again, and additional evidence may be given. The appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal.
22. By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
23. In practice, at the initial directions hearing the appeal tribunal will consider the nature of the questions asserted in the application for appeal, the conduct of the original hearing, and other relevant matters such as the availability of new evidence, to determine whether the appeal should proceed by way of rehearing or as a new application. Applications for appeal raising only questions of law or confined questions of fact are most expeditiously dealt with as a rehearing, occasionally with further evidence admitted in relation to areas of factual dispute. By contrast, where there appears to have been a real failure of process at the original hearing, such as a failure to hear both parties, the appeal might be heard as a new application. In such circumstances, this approach is often the simplest, quickest and most inexpensive way to achieve a fair and just outcome.
24. Where an appeal is successful the question arises what orders may be made by the appeal tribunal. The ACAT Act does not set out the powers of the appeal tribunal. Rule 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) provides:
21 Appeals to tribunal—general powers
For an appeal to the tribunal, the tribunal—
(a) has all the powers and duties of the tribunal that made the order appealed from; and
(b) may draw inferences of fact; and
(c) may receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d) may make an order confirming, amending or setting aside the order of the tribunal appealed from; and
(e) may make any other order it considers appropriate. (footnotes omitted)
16.In an earlier tribunal decision on 20 December 2016, Mooney-Pursell v Commissioner for Social Housing[7] that tribunal referred to these powers at [9] and stated:
9. These powers were most recently considered by the Supreme Court in Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 (Giusida) The court described the powers as wide and generous, requiring a proper review of the decision appealed from.
[7] [2016] ACAT 151
17.Giusida was a decision by Refshauge J in the ACT Supreme Court. He also said in that decision:
38. Thus, while error needs to be shown before the ACAT on appeal will set aside the original decision on the application from which the appeal is taken, it is not required that the error be “manifest”, “obvious” or other than an error discernible by a proper assessment of the evidence and the law. I could find nothing in any parliamentary material, such as the relevant Explanatory Statements or the Parliamentary Speeches that suggested any different construction of the provision.
39. A final comment is necessary. The proceedings before the ACAT on appeal and before me refer at times to the common reference in appellate discourse as to what is “open” to a first instance decision-maker. It seems to me that this is a wide term that needs careful consideration. It also needs to be clear that, if there is an error of fact or law in a finding of the ACAT, then it is not open to it to make such a finding unless the error is not a material one.
40. The evidence that permits a decision maker to draw a conclusion must have a character of reliability and reasonable substance; it must not be mere evidence, that it is simply what is put before the tribunal.
18.The Appeal Tribunal adopts the principles set out above in Mansour and Giusida in considering this appeal.
The appeal
19.The appellants had not identified in the application for appeal the questions of law or fact involved, instead attaching a one page document headed ‘Reasons for Appeal’ which did not include any references to the transcript of the original hearing as directed by the tribunal on 10 April 2017. This document covered a wide range of issues which were not all relevant to the issues determined by the Original Tribunal.
20.In their Reasons for Appeal the appellants referred to the history of dealings between the parties which commenced in 2009. Mr Hopkins submitted that the monies paid to him in 2009 were for work undertaken more than six years ago and to now claim for those monies was unreasonable. He submitted:
The entire hearing was a travesty and very conflictive to any sense of natural justice and I am of aboriginal descent and could feel extremely aggrieved by what may be considered as offensive and discriminate.[8]
[8] Application for appeal – reasons for appeal, lines 38 - 41
21.Presidential Member Spender, sitting as the Appeal Tribunal, said in Law Society of the ACT & Treasury Directorate and NRMA Insurance[9] (omitting internal citations):
In this jurisdiction an appellant does not have standing to an appeal as of right and is required by section 79(3) of the ACAT Act to identify a question of fact or law.
Therefore, a question of fact or law must be identified in the grounds of appeal that enables the Appeal Tribunal to consider whether the Original Tribunal made an error as to the law or facts raised in those questions. The Appeal Tribunal stated this proposition in Chakravarty & Commissioner for ACT Revenue and, in doing so, confirmed the earlier decision of The Medical Practitioner and the ACT Medical Board where a differently constituted Appeal Tribunal stated that the role of the Appeal Tribunal is limited to addressing errors in the original decision.
[9] [2013] ACAT 36 at [21]-[22]
22.Accordingly, at the commencement of the hearing the appellants were asked to identify the questions of law and questions fact in the decision under review which would enable the Appeal Tribunal to determine whether the Original Tribunal made an error as to the law or facts raised in those questions. Mr Hopkins said:
I am saying the error of law is in an approval of 2009 that was finalized in February 2015 which is that job, that project, and then at the end of November 2015 we finalized in a different job. So the error of law is it wasn’t clarified that they were different jobs, different projects.
and
The other error I believe is the plaintiffs are saying that I was paid the money for the last job which was finalized in November 2015, but I was never paid that amount that this stated I was paid.[10]
[10] Transcript of proceedings 26 June 2017 page 2 lines 29-32 and lines 40-42
23.Mr Hopkins and Mr Roche gave evidence and were cross examined. The respondents called evidence from Darren Wise who was cross examined by Mr Hopkins. The Appeal Tribunal reserved the decision after hearing submissions from the parties. This is the Appeal Tribunal’s decision.
Consideration
24.The Appeal Tribunal considered the documentary evidence before the Original Tribunal, the transcripts of 15 November 2016, 8 February 2017 and 7 March 2017, the oral and written evidence before the Appeal Tribunal on 26 June 2017 and the oral and written submissions of the parties at the appeal hearing.
25.As the errors of fact and law identified by the appellants in [22] above refer to building works commencing in 2009 the Appeal Tribunal sets out some relevant background facts which were not in dispute.
Background
26.In February 2009 the respondents engaged Mr Hopkins as their certifier for the approval process for the building work Mr Dann was undertaking under his owner/builder licence No. 2009159 at the respondents’ house in Griffith ACT (the house). The building work included alterations and additions to the house.
27.The respondents paid Mr Hopkins $10,467.67 in February 2009 for the approval process. This included costs and disbursements. The respondents did not complete the building work before both the building approval and Mr Dann’s owner/builder’s permit lapsed in 2012.
28.In 2014 Mr Dann reregistered the plans and a new building approval was issued on 15 October 2014 for project under a new owner builder’s licence. Mr Hopkins was the certifier. He sent an account for $315 including GST to the respondents on 1 October 2014 which the respondents paid on 3 October 2014. On 19 February 2015 Mr Hopkins obtained the certificate of occupancy for project (the first certificate).
29.The respondents obtained a building report on 6 October 2015 from ACT Property Inspections as they had listed the house for sale by auction. This report alerted them to the fact that all of the works which they had understood would have been included in the first certificate Mr Hopkins obtained were not included. The first certificate only related to the garage at the house which was under the extension. It did not include the alterations to the house.
30.What happened after this was the subject of the hearing before the Original Tribunal and the Appeal Tribunal.
31.However, it was not in dispute at these hearings that in October 2015 the respondents engaged a licensed builder, Mr Roche, to obtain the Certificate of Occupancy for the works that had not been included in the first certificate.
32.Mr Roche used Mr Hopkins as the certifier and building approval was issued for existing works for existing dwelling not including the extension on 10 November 2015 and on 11 November 2015 a certificate of occupancy was issued for these works (the second certificate).
33.The issues before the Original Tribunal are set out in [10] above. The appellants are appealing the findings and decision reached by the Original Tribunal and set out in [12] and [13] above in that:
(a)that tribunal erred in not clarifying that the work in 2009 and in October and November 2015 were different jobs or projects; and
(b)that tribunal also erred in accepting the (now) respondents’ evidence that the appellants had been paid for the job finalized in November 2015.
The original tribunal hearing
34.The Original Tribunal stated in the decision that it preferred the respondents’ evidence of the circumstances giving rise to their claim for $6,000. Their evidence was that:
(a)they were selling the house by auction and obtained a report from ACT Property Inspections dated 6 October 2015 for this sale;
(b)on reading this report they became aware that the first certificate Mr Hopkins had provided them in February 2015 did not include all of the alterations and additions to their house;
(c)they tried without success to contact Mr Hopkins as he had been the certifier for their building work;
(d)as the auction of their house was imminent, when they were unable to contact Mr Hopkins they engaged Mr Roche, a licensed builder who knew Mr Hopkins, to obtain the outstanding Certificate of Occupancy which covered the outstanding works;
(e)Mr Roche suggested using Mr Hopkins as the certifier and arranged a meeting on site with Mr Dann, Mr Hopkins and himself;
(f)this meeting took place at Mr Dann’s house on 15 October 2015;
(g)at that meeting Mr Hopkins claimed he did not have a record of Ms Nagle and Mr Dann paying his invoice of $10,467.67 in 2009 and for him to continue as the certifier and obtain the second certificate he needed to be satisfied that this invoice had been paid;
(h)Ms Nagle and Mr Dann had paid the $10,467.67 in February 2009 but, in October 2015 did not have access to their records which were in storage as they were selling the house;
(i)at the meeting on 15 October 2015 and due to the upcoming auction of the house, Mr Dann, Mr Roche and Mr Hopkins reached an agreement, in order for Mr Hopkins’ work as certifier to proceed, that Ms Nagle and Mr Dann pay an amount of $6,000 to Mr Roche on behalf of Mr Hopkins which sum would be refunded to Ms Nagle and Mr Dann when they provided evidence of the payment of $10,467.67 in February 2009 to Mr Hopkins;
(j)Ms Nagle and Mr Dann paid $6,000 to Mr Roche on 16 October 2015 so that the work could start and provided evidence of this payment to the tribunal;
(k)Mr Dann had requested Mr Roche obtain an invoice from Mr Hopkins for the $6,000. Mr Hopkins provided invoice 00008594 dated 25 October 2015 to Mr Roche for $6,000 being ‘Building Approval $5,455.00 plus GST of $545.00’;
(l)the second certificate for the outstanding works was obtained in November 2015;
(m)on or about 23 December 2015 Ms Nagle and Mr Dann obtained confirmation from the Commonwealth Bank of Australia (CBA) of the payment of the $10,467.67 to Mr Hopkins’ trust however the CBA confirmation incorrectly stated that the payment had been made on 18 February 2019 instead of 2009. This confirmation was provided to Mr Roche with the request that the $6,000 be repaid as soon as possible. Mr Roche telephoned Mr Dann and Ms Nagle and stated that there was no way Mr Hopkins would pay it with the incorrect date. A copy of this confirmation was provided to the tribunal;
(n)Ms Nagle and Mr Dann obtained another confirmation from the CBA on 28 January 2016 which correctly showed that the respondents had paid Trins Trust, Mr Hopkins’ trust, $10,467.67 on 18 February 2009. A copy of this confirmation was provided to the tribunal;
(o)after trying unsuccessfully to get the $6,000 repaid Ms Nagle finally sent an email to Mr Roche dated 5 July 2016 at 1.17 pm in which she asked Mr Roche to confirm that the money paid is recoverable from Mr Hopkins or from himself. A copy of this email was provided to the tribunal:
(p)At 3.49pm on 5 July 2016 Ms Nagle received a reply from Mr Roche which stated: “Sorry to hear about Chris. It is out of my hands, please contact Ken Hopkins.”
35.The Original Tribunal stated in the decision that it found the applicants’ version of the circumstances giving rise to this claim for a refund of $6,000 preferable to that of Mr Hopkins as it was more plausible and more consistent and it also preferred the applicants’ version of events to Mr Roche’s as it was more plausible.
36.The Original Tribunal also found Mr Hopkin’s and Mr Roche’s evidence in relation to the invoice from Mr Hopkins for $6,000 unconvincing. That tribunal said:
…I am not convinced at all though the respondent relies upon the invoice he sent to Ken Roche for $6,000. There was nothing to suggest that was a genuine transaction and the evidence of Mr Hopkins and Mr Roche was not convincing on this point.[11]
[11] Transcript of proceedings 7 March 2017 page 3 lines 36-39
37.The Original Tribunal was critical of Mr Hopkins’ evidence generally. It said:
It is clear from the evidence and it should have been clear to Mr Hopkins that the applicants had prepaid the full amount of $10,467.67 for all the work to be performed as directed by him in his invoice in 2009. The fact that Mr Hopkins could apparently not tell from his own records whether he had been fully paid or not in 2009 and had at no time between 2009 and October 2015, claimed that the applicants owed him any money does not support his version of events.[12]
[12] Transcript of proceedings 7 March 2017 page 4 lines 8-13
38.Mr Hopkins had given evidence to the Original Tribunal that he did not do the work the subject of the invoice 00008594 he gave to Mr Roche; Mr Roche did the work and that he, Ken Hopkins, had “just given an invoice for a price on work that he wanted me to do, what he told me he wanted done.”[13] Mr Hopkins said he was not paid $6,000 and his invoice for $6,000 had not been paid.[14]
[13] Transcript of proceedings 8 February 2017, page 24, lines 43-44
[14] Transcript of proceedings 15 November 2016 page 22, line 20
39.The following exchange took place in the hearing before the Original Tribunal in relation to this invoice and its payment:
Tribunal: Have you sought that money from Mr Roche? The $6000?
Mr Hopkins: It’s a bit hard now because the business is sold to Chris’ brother.[15]
[15] Transcript of proceedings 15 November 2016 page, lines 3 -7
…
Tribunal: Have you asked him for that $6000? Have you ever asked him?
Mr Hopkins: Yes
Tribunal: What action have you taken to pursue that amount?
Mr Hopkins: Well, on the basis of swaps.
Tribunal: What do you mean? Sorry
Mr Hopkins: On the basis of swapping other work.
Tribunal: So he’s paid in kind?
Mr Hopkins: No, he hasn’t paid that invoice as yet.
Tribunal: Can you just explain what action ---
Mr Hopkins: I have not been paid those invoices.
Tribunal: Yes, but what have you done to make sure that you are paid?
Mr Hopkins: Well, I haven’t done a lot to do that, because I do business with a new company now. I haven’t chased it like I should have at that time. I did get other work from him.
Tribunal: But in any case, you accept that he is liable to pay you that amount?
Mr Hopkins: Yes[16]
[16] Transcript 15 November 2016, page 23, lines 17 – 44; page 24, lines 1 - 4
…
Tribunal: So you think Mr Roche isn’t liable? Who is liable for that amount in your view?
Mr Hopkins: Who is liable for the amount?
Tribunal: To pay you $6000?
Mr Hopkins: Mr Roche[17]
[17] Transcript 15 November 2016, page 24 lines 18 - 25
…
Mr Hopkins: He’s liable for the money that these people have given him, not me.
Tribunal: Okay. But you could pursue him. You haven’t pursued him.
Mr Hopkins: I haven’t pursued him. We’re friends for years. I do other work. He works for her brother.
Tribunal: Have you even said, you know, “We had an arrangement. I invoiced you. Why don’t you give me the $6,000?”
Mr Hopkins: Yes
Tribunal: Have you even asked him?
Mr Hopkins: Yes.
Tribunal: What was his response?
Mr Hopkins: His response is. “I’ll work it out.”[18]
[18] Transcript of proceedings 15 November 2016, page 24, lines 30 – 44; page 25, lines 1 - 5
40.Mr Hopkins agreed at the hearing before the Original Tribunal on 15 November 2016 that he had attended a meeting at the respondents’ home with Mr Roche and Mr Dann although he was unable to recall the date. He also said in his evidence that there was no discussion or agreement that the respondents would pay $6,000 to Mr Roche, to be held by him for Mr Hopkins until the respondents were able to prove that they had paid Mr Hopkins $10,467.67 in 2009 whereupon Mr Hopkins would authorize Mr Roche to refund the $6,000 to the respondents.
41.As stated in [35] above, the Original Tribunal found the then applicants’ evidence in relation to the claim for $6,000 more plausible and more consistent than Mr Hopkins. It preferred the applicants’ evidence.
42.When Mr Roche gave evidence before the Original Tribunal the following exchanges took place:
Tribunal: Okay. Because what the applicants say is that prior to this invoice [from Ken Hopkins] being – being sent to you, they paid you an amount of $6000.
Mr Roche: No, I don’t remember that.
…
Mr Roche: Well, I’m not saying that they didn’t, but I don’t just remember. I would have gave them a receipt or something.[19]
[19] Transcript of proceedings 8 February 2017, page 51, lines 28 - 37
and
Tribunal: … what the applicants have submitted is a record that they say – a record of a netbank transaction showing a payment to Ken Roche on the 16 October, so before Mr Hopkins issues you with that invoice, which you say is a quote for $6,000. Before that the applicants say they paid you. Back in October, which is before you were issued with the second – another invoice ---
Mr Roche: Yes.
Tribunal: --- for an amount of $6,000 in to your account. Do you recall getting that amount ---
Mr Roche: No.
Tribunal: --- and what it’s for?
Mr Roche: No.
Tribunal: Do you recall a conversation at the applicant’s address where the applicants say that there was an agreement that you hold that $6000 virtually in trust for Mr Hopkins while he ascertains whether the applicants had paid their original account.
Mr Roche: If there was I really can’t remember but if I was, I would have gave a receipt for the money but if there’s a record of them putting it in my account, it must be in my account.
Tribunal: What do you think it might be for?
Mr Roche: I couldn’t tell you.[20]
[20] Transcript of proceedings 8 February 2017, page 52, lines 40 – 44, page 53, lines 1 - 23
and between Mr Hopkins and Mr Roche:
Mr Hopkins: The plaintiff said there was some sort of agreement made to hold $6000 in trust ---
Mr Roche: I can’t remember ---[21]
[21] Transcript of proceedings 8 February 2017, page 54, lines 42 - 45
…
Mr Roche: I’ve never paid you $6000 I know that.
Mr Hopkins: Yes. Nothing was agreed to be held in trust?
Mr Roche: Not that I can remember, no.[22]
[22] Transcript of proceedings 8 February 2017, page 55, lines 9 - 13
and between Mr Dann and Mr Roche:
Mr Dann: Do you remember that conversation?
Mr Roche: (indistinct) conversation that Kenny started telling me what he needs to finalise ---
Mr Dann: And me – and me saying well you’ve got all of that, and him saying he couldn’t find the file.
Mr Roche: Well I know – all I heard that people saying they cant find the building file ---
Mr Dann: Thank you.[23]
[23] Transcript of proceedings 8 February 2017, page 58 lines 40-45, page 59 lines 1-10
and between Ms Nagle and Mr Roche:
Ms Nagle: Ken do you remember Ken [Hopkins] denying that we’d paid him in the beginning and us saying that the filing cabinet was in storage, we couldn’t prove that we’d paid it and he would not go ahead and do any more work for us until we paid another $6000?
Mr Roche: I don’t remember those titles but ---
Ms Nagle: Ken ---
Mr Roche: But knowing Ken he would say ---
Ms Nagle: Yes.
Mr Roche: --- he wouldn’t do anything without being paid.
Ms Nagle: And we paid – you said that you would sort it out because Ken refused to do anything and you would sort it out for us. We paid you that $6000 so that we could get started and I emailed you several – several times with the proof that we’d paid it in the first place, asking for that money back. And in the end you said, “It’s out of my hands”, I have it in an email that’s being submitted to evidence. You said, “It’s out of my hands, you’ll have to get that money back from Ken.”
Mr Roche: Well obviously I don’t remember the conversations ---
Ms Nagle: Well ---
Mr Roche: Like I know we spoke a couple of times because I’d said I would get Ken back on the job.
Ms Nagle: We gave it to you in good faith because we knew we had no option. We were held to ransom.
Mr Roche: I should have – I should have gave you a receipt for it, because I always do receipts.[24]
[24] Transcript of proceedings 8 February 2017, page 59 lines 12 – 45, page 60 line 1
43.When asked about the confirmation from the CBA which Ms Nagle had sent to Mr Roche in December 2015 the following exchange took place:
Tribunal: Why did she [Ms Nagle] send it [the CBA confirmation] to you? What’s that got to do with you if you’re not holding the $6,000 in trust?
Mr Roche”: Well, I just didn’t know. That was just given to me to send on to Ken Hopkins as far as I knew.[25]
[25] Transcript of proceedings 8 February 2017 page 66, lines 28 - 32
Tribunal: So we’re looking at 23 December [email from Catherine Nagle to APRO]. … The bank has traced the money. “Could you please arrange for it to be paid to us as soon as you’re able.”
Mr Roche: Yes.
…
Tribunal: Did you think it a bit odd? Did you say, “What’s this got to do with me?”
Mr Roche: Well, I just sent them on to Ken Hopkins.
Tribunal: They didn’t ask you to.
…
Tribunal: They stressed that, “Could you please arrange to have the $6,000 to be paid to us as soon as you are able.”
Mr Roche: Well, I honestly couldn’t ---
Tribunal: Did you know what it was about?
Mr Roche: Well, not at the – well, I may have but not at the – I just can’t remember.[26]
[26] Transcript of proceedings 8 February 2017 page 67, lines 19 – 44, page 68, lines 3 - 11
44.As stated in [35] above, the Original Tribunal found Mr Dann’s and Ms Nagle’s evidence of the circumstances giving rise to their claim for the refund of $6,000 more plausible than Mr Roche’s evidence.
45.The Original Tribunal accepted Mr Dann’s and Ms Nagle’s evidence over the evidence of both Mr Hopkins and Mr Roche. It can be inferred that that tribunal found that there was a meeting on 15 October 2015 during which Mr Hopkins said he did not have a record of the payment by Mr Dann and Ms Nagle in 2009 of $10,467.67 and that he demanded Mr Dann and Ms Nagle pay $6,000 to Mr Roche, as agent for Mr Hopkins before he, Mr Hopkins, would commence working on obtaining the second certificate. The background to this meeting was that the now respondents were committed to the sale of the house, had believed that the first certificate provided by Mr Hopkins would cover all of the work carried out to the house and when they learned that it did not, given the upcoming auction of the house, were in no position to refuse Mr Hopkins’ demand for a further payment of $6,000. Mr Hopkins, Mr Roche and Mr Dann reached an agreement that when the respondents obtained evidence of the payment in 2009 of $10,467.67 to Mr Hopkins’ trust and produced that evidence to Mr Roche and Mr Hopkins, Mr Hopkins would direct Mr Roche to refund the $6,000 to the applicants. Ms Nagle provided evidence to Mr Roche of the payment in 2009 to Mr Hopkins and requested the refund of the $6,000. Mr Hopkins failed to direct Mr Roche to refund the $6,000 to the respondents.
46.The Original Tribunal also found Mr Hopkins’ conduct was a contravention of section 20 of the Australian Consumer Law (ACL) which prohibits unconscionable conduct in relation to goods and services; that Mr Hopkins’ company, Cteck Hop Pty Ltd, was liable for Mr Hopkins’ actions as its sole director and that the company was vicariously liable on the basis of breach of contract because Mr Hopkins did not direct Mr Roche to refund the money in accordance with the terms of the agreement with Mr Dann and Ms Nagle.
47.The Original Tribunal awarded damages of $6,000 to the now respondents for the appellants’ breach of contract and for contravention of section 20 of the ACL. This amount was ordered pursuant to section 236 of the ACL.
The Appeal
The evidence in the Appeal
48.Direction 2(b) of the directions made on 10 April 2017 provided:
2. The Appellants to:
(a)…
(b)Advise the Tribunal and the Respondents in writing whether they intend to call any additional evidence at the hearing and, if so, identify the form and nature of that evidence by 4.00pm on Friday, 19 May 2017.
49.The appellants filed, as additional evidence, the documents set out in [3] above.
50.At the invitation of the Appeal Tribunal Mr Hopkins identified in [22] two questions of fact, not law, as claimed.
51.Bearing in mind the principles stated by Presidential Member Daniel (see [15] above) of Mansour and by Refshauge J in Giusida[27] in determining whether the Original Tribunal had made any errors of fact or law, the Appeal Tribunal must undertake a proper assessment of the evidence and the law. This must include the new evidence which the appellants were permitted to provide pursuant to the directions, which included Mr Roche’s statutory declaration and the additional evidence given at the appeal hearing by Mr Hopkins, Mr Roche and Mr Wise. Mr Wise had introduced the respondents to Mr Roche to get the approval for the second certificate and who had had a recent conversation with Mr Roche about the monies paid by the respondents to him and the subject of these proceedings.
[27] [17] above
52.In his evidence before the Appeal Tribunal Mr Hopkins agreed that his business had been contacted by Mr Roche in October 2015 in relation to the work at the respondents’ house. However, notwithstanding that he had told the Original Tribunal that he had attended a meeting with Mr Dann and Mr Roche about the work Mr Roche was doing for the respondents in October 2015, he repeatedly told the Appeal Tribunal that he did not attend the meeting on 15 October 2015; that a meeting between himself, Mr Roche and Mr Dann did not take place on 15 October 2015 and that he denied saying that he would not complete the certification process until Mr Dann and Ms Nagle made a further payment. He told the Appeal Tribunal that he had only dealt with Mr Roche.[28]
[28] Transcript of proceedings 26 June 2017, page 22 lines 9-10
53.Subsequently, when Mr Dann was cross examining Mr Hopkins during the appeal hearing it became apparent that Mr Roche’s driver was also present at the meeting on 15 October 2015 and this prompted Mr Hopkins to concede he had attended this meeting after all telling the Appeal Tribunal that he had not realized that it was the same meeting that the respondents had been referring to. However, he again denied that there was any discussion at this meeting about his not being paid his fees in 2009; about him wanting the respondents to pay $6,000 to Mr Roche before he would proceed with the second certification; about the respondents obtaining verification of the payment for the first certification or that he had agreed to pay $6,000 back to Mr Dann and Ms Nagle when they provided this verification to Mr Roche and himself.
54.In relation to his invoice for $6,000 which he had sent Mr Roche on 25 October 2015, Mr Hopkins initially told the Appeal Tribunal that he had issued the invoice for $6,000 inclusive of GST to Mr Roche as Mr Roche had asked for a costing from him to do the second certification works for the respondents. He said that the reference to ‘invoice’ was an error as it was meant to be a quotation and that he had sent the invoice for $6,000 to Mr Roche because he expected to be doing all the work.
55.Subsequently, Mr Hopkins told the Appeal Tribunal that Mr Roche had obtained the invoice for $6,000 from Mr Hopkins’ office, not from Mr Hopkins stating:
Mr Roche would have rung up my office. We do lots of work together and he would have asked them for the invoice, and they would have sent him the invoice. That’s how he got that is my understanding. I didn’t give him the invoice.[29]
[29] Transcript of proceedings 26 June 2017 page 79 lines 30-33
56.Mr Hopkins was unable to satisfactorily explain how or why his office knew to charge $6,000. He conceded that he didn’t do $6,000 worth of work for Mr Roche or for the respondents. He said that his work probably worked out to be worth about $800 and that he did not send an amended invoice to Mr Roche for $800. He did not chase up payment of the invoice that had been sent to Mr Roche for $6,000 telling the Appeal Tribunal that this was because he had always believed that it was a quotation.
57.Doing the best it can with Mr Hopkins’ evidence it appears that it can be summarised as follows:
(a)there was no discussion about his 2009 fees being unpaid;
(b)there was no agreement between the parties on 15 October 2015 whereby the respondents would pay $6,000 to Mr Roche while they obtained and provided confirmation of their payment of $10,467.67 to Mr Hopkins in 2009, whereupon Mr Hopkins was to direct Mr Roche to refund the $6,000 to the respondents.
(c)while a meeting took place on that date it was to ascertain what documents and searches Mr Hopkins required to provide the second certification.
(d)Mr Roche requested Mr Hopkins or his office to provide a quotation of his cost for this work.
(e)Mr Hopkins or his office provided a quotation for $6,000 for this work.
(f)Mr Hopkins had not been paid for this work.
58.The Appeal Tribunal notes that the same claims were considered by the Original Tribunal and rejected. The Original Tribunal was not convinced that this invoice was a genuine transaction. It found Mr Hopkins’ and Mr Roche’s evidence not convincing on this point. Mr Dann had told the Original Tribunal that, after the meeting on 15 October 2015, he had requested Mr Roche obtain an invoice for the $6,000 then being demanded by Mr Hopkins which was provided by Mr Hopkins on 25 October 2015. The Original Tribunal preferred this evidence.
59.The Appeal Tribunal also found Mr Hopkins’ evidence not convincing. It is satisfied that the Original Tribunal correctly found that the $6,000 invoice or quotation was not a genuine transaction. Mr Hopkins’s evidence was not credible. The Tribunal will return to this later in the decision.
60.In his evidence to the Appeal Tribunal, Mr Roche agreed that he, Mr Hopkins and Mr Dann had attended a meeting on 15 October 2015 but said that there was no discussion of money at that time. He said that he had a discussion with Mr Dann on another date, most likely at Mr Dann’s house and that:
I would have said, “well if it’s the same work as previously been approved you don’t have to pay for it twice,” but then I was left then – after I had seen all the documentation it was for different work that was previously approved. It wasn’t the same work that was previously approved earlier that year otherwise we wouldn’t have to do it.[30]
[30] Transcript of proceedings 26 June 2017, page 42, lines 38-42
61.This evidence appeared to support his statutory declaration dated 5 May 2017 in which Mr Roche had stated that:
(a)Chris Dann had said that Mr Hopkins had done the work several years ago and it (the second certification) was the same job as in 2009;
(b)Mr Hopkins had told Mr Roche that it was not the same job as in 2009 and that he wanted to be paid for his work in 2015;
(c)Mr Roche told Chris Dann that Mr Hopkins wanted to be paid as it is not the same job already done in 2009; and
(d)Chris Dann agreed to all of this.
62.However, it was silent in regards to the $6,000 payment the subject of the proceedings.
63.When Mr Roche was asked about the $6,000 payment he agreed that he had received $6,000 from Mr Dann and Ms Nagle in October 2015 and that he had received an invoice from Mr Hopkins also for $6,000 after the respondents had paid him $6,000. He said he had not paid $6,000 to Mr Hopkins. He said the $6,000 paid to him by Mr Dann and Ms Nagle was for paying the bills as they came in. He said to Mr Dann:
All the money you paid, the $6,000 plus the $5,000, is fees that I charged you for my business doing the work for you.
This was followed by the following exchange:
President Symons: And where is the evidence that you told them that’s what it was for?
Mr Roche: There isn’t any. It was just verbal.[31]
[31] Transcript of proceedings 26 June 2017, page 48 lines 9-15
64.The Appeal Tribunal noted that Mr Roche had given Mr Dann an invoice on 24 November 2015 for $5,289 which comprised Government fees of $1,889, plans $850, engineer $550 and Ken Roche’s costs of $2,000. Mr Roche described this invoice “as a bill at the end of the job for the work carried out.”[32] The respondents paid this amount by two instalments - $5,000 on 2 December 2015 and the balance on 3 December 2015. Mr Roche conceded that he had been paid for this invoice.
[32] Transcript of proceedings 26 June 2017 page 43 line 21
65.Mr Roche maintained that his total work came to $11,000 and when asked if he had given the respondents an invoice for $11,000 he told the Appeal Tribunal:
No, because they already had one for $6,000 and I just gave them one for the work I had finished off earlier that year.[33]
[33] Transcript of proceedings 26 June 2017 page 42, lines 11-13
66.This was followed by the following exchange:
Presidential Member Symons: And what invoice did they have for $6,000 –
Mr Roche: I didn’t give them an invoice.
Presidential Member Symons: You said they already had an invoice.
Mr Roche: No, they didn’t have an invoice.
Presidential Member Symons: For $6,000?
Mr Roche: No, not from my company.
Presidential Member Symons: So you decided that you’d invoice them for $5,300 and something?
Mr Roche: Yes, that’s correct.
Presidential Member Symons: And how did you account for the $6,000 they paid you?
Mr Roche: Well, there was the fees I was paying to get things completed.
Presidential Member Symons: So are you saying you paid Mr Hopkins $6,000?
Mr Roche: No, I didn’t.
When you receive money from people it’s, in effect, you’re getting money on trust?
Mr Roche: That’s correct.
Presidential Member Symons: So do you have a trust account?
Mr Roche: No.
Presidential Member Symons: So where do you pay it?
Mr Roche: It just gets paid into my bank account and I complete the work.
Presidential Member Symons: So you’ve got from what I’ve seen, there’s an invoice from Mr Hopkins for $6,000?
Mr Roche: That was an invoice to me. That wasn’t an invoice to Mr Dann, no.
Presidential Member Symons: An invoice to you and Mr Hopkins has told the Tribunal that he did about $800 worth of work?
Mr Roche: Well that’s between Mr Hopkins and myself.
Presidential Member Symons: Except that you’ve already got $6,000 from Mr Dann?Mr Roche: That’s correct.[34]
[34] Transcript of proceedings 26 June 2017 page 42 lines 14-43
67.Mr Roche did not provide any documentary or other evidence at the appeal hearing to corroborate his claim that his costs totalled $11,000. He had not given this evidence at the original hearing. Nor did he provide any evidence to corroborate any of the payments “on to the necessary people he had to pay it on to” [35] which he alleged he had made from the $6,000 the respondents had paid to him on 16 October 2015.
[35] Transcript of proceedings 26 June 2017 page 44 line 6
68.When cross examined by Ms Nagle about their request for the refund of the $6,000 he was asked:
When we asked you for that $6,000 to be refunded as per the agreement you emailed me and said, “It’s out of my hands”?[36]
[36] Transcript of proceedings 26 June 2017 page 40 lines 8-9
The following exchanges took place:
Mr Roche: Well, at that time, when we were talking about the $6,000 you said that it was to do with the job in 2009. The job in 2009, what I’m led to believe when I looked into it, was completed in February 2015 and the job in…
Presidential Member Symons: And did you write that back?
Mr Roche: No
Presidential Member Symons: Did you tell Ms Nagle that?
Ms Nagle: You said to me “It’s out of my hands. Contact Ken Hopkins”
Mr Roche: That was the last contact ---
Mr Nagle: That was the last contact we had?
Mr Roche: Which was about 12 – six or eight months after I had finished the work.
Mr Dann: It wasn’t you saying that $6,000 was for other costs. It was “You contact Ken Hopkins for the money.
Mr Roche: Well. We were ---
Ms Nagle; We all knew what the money was for. We all knew what the $6,000 was for.
Mr Roche: That’s correct.
Mr Nagle: That’s right.
Mr Roche: I said “That’s going to be passed on”, but whether I passed it on or who to I don’t know necessarily. Ken Hopkins never received the full money of that but he did receive ---
Mr Dann: Why should that be our problem if he never received it?
Mr Roche: It should be taken up with me rather than Ken. I’m the one who had the contract.[37]
[37] Transcript of proceedings 26 June 2017 page 44 lines 9-36
69.It now appears that Mr Roche’s evidence is that his costs were really $11,000 and not the $5,289 which he had invoiced the respondents on 24 November 2015 and which the respondents had paid in November 2015. He did not invoice the respondents for $11,000 and he never told them that his costs were $11,000. Nor did he provide them with a further invoice for the balance of $11,000 after deducting the $5,289 which they had paid, namely $5,711.
70.Mr Wise’s evidence was that he had referred the respondents to Mr Roche in October 2015 to get the works the subject of the second certificate approved and that he had since had a conversation with Mr Roche about the payment the subject of these proceedings. He told the Appeal Tribunal that:
Ken [Roche] was a little bit dirty about committing but I said that that payment was made by Chris to you, you had asked for it and you need to tell the court exactly what has happened and Chris paid that on the condition that if he had a bank statement saying that it had previously been paid that that money would be refunded and you were very aware of that Ken …[38]
Consideration
[38] Transcript of proceedings 26 June 2017 page 68 lines 29-34
71.While the directions permitted the appellants to call additional evidence and Rule 21 permits the Appeal Tribunal to receive further evidence about questions of fact, the appellants, through Mr Roche’s evidence, purported to introduce a new response, namely that Mr Roche’s costs were really $11,000 which included the $6,000 the subject of this appeal and which Mr Roche said he had used for paying bills as they came in. This claim was raised for the first time on the hearing of the appeal. It did not form part of the grounds of appeal or Mr Roche’s evidence at first instance. There was no credible explanation given to the Appeal Tribunal to explain why this evidence had not been provided to the original hearing. The Tribunal is satisfied and finds that Mr Roche’s invoice which he rendered at the end of the job in November 2015 was ‘for the work carried out’.
72.On an appeal a party is bound by the conduct of the case at first instance. In Metwally v University of Wollongong (No.2)[39] the High Court stated:
Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
[39] (1985) 60 ALR 68, at [7]
73.Mr Hopkins failed to adduce this evidence at the original tribunal hearing. Whether this was caused by inadvertence or deliberately the tribunal is not able to decide. In these circumstances, the Appeal Tribunal is satisfied that no weight should be given to Mr Roche’s recent evidence.
74.The Appeal Tribunal has referred to Mansour’s case above in [15] and sets out here again the following statements in [22] omitting citations:
The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal should not interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion.
75.The original decision was a discretionary decision. In Robinson Helicopter Company Incorporated v McDermott [40] (Robinson Helicopter) the High Court has held (omitting citations)
43. …A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.
[40] (2016) 331 ALR 550 at [43]
76.It falls to the Appeal Tribunal to determine whether the Original Tribunal’s findings of fact are wrong with reference to the criteria in Robinson Helicopter in the preceding paragraph.
77.The Original Tribunal correctly identified that the application before it, as set out in the civil dispute application, concerned an allegation that the now appellants had breached an agreement between the parties and Mr Roche which was reached at a meeting on 15 October 2015.
78.It is apparent, on reading the transcripts, that the Original Tribunal was satisfied that Mr Hopkins had begun work for the respondents in 2009, had been paid for that work in February 2009 and that the work was finalised in February 2015 when the first certificate was issued.
79.The only connection between that work and the application to the Original Tribunal was whether there was a discussion on 15 October 2015 as to whether the sum of $10,467.67 charged by Mr Hopkins for this work had been paid by the respondents in 2009 and an agreement reached, in order for Mr Hopkins to proceed with the work for the second certificate in October and November 2015, for the respondents to pay Mr Roche $6,000 while the respondents obtained and provided bank confirmation of the payment to Mr Hopkins and Mr Roche, whereupon the $6,000 was to be repaid to the respondents.
80.The Original Tribunal found that there was a discussion and an agreement was reached between the parties on 15 October 2015. The Appeal Tribunal is satisfied that that finding of fact was open to the Original Tribunal on the available evidence. It was not glaringly improbable or contrary to compelling inferences. The credibility of the witnesses was clearly an important and relevant factor for the Original Tribunal.
81.Turning to the questions identified by the appellants – the Appeal Tribunal finds that it was not necessary for the Original Tribunal to identify in its decision that the work which was finalized in November 2015 was for a different job for which Mr Hopkins had not been paid. As stated above, the Original Tribunal found that the civil dispute application was confined to the agreement reached at a meeting on 15 October 2015, with the respondents performing their part of the agreement and Mr Hopkins and Cteck Hop Pty Ltd breaching the agreement.
82.The Original Tribunal heard evidence from Mr Hopkins that although he had rendered an invoice for $6,000 to Mr Roche, he had not carried out the work the subject of the invoice. The Original Tribunal found that there was nothing to suggest that this invoice suggested a genuine transaction. It did not accept Mr Hopkins and Mr Roche’s evidence.
83.The Appeal Tribunal heard evidence from Mr Hopkins and Mr Roche. It also found the evidence of Mr Hopkins and Mr Roche was not credible in relation to the agreement reached on 15 October 2015. Nor was their evidence in relation to Mr Hopkins’ fees being $6,000 credible. In fact, Mr Hopkins’ evidence to the Appeal Tribunal was that he had not incurred $6,000 worth of fees and that it was more likely to be $800 for which he had not invoiced Mr Roche.
84.The Appeal Tribunal is not persuaded that the Original Tribunal erred in finding that the invoice for $6,000 was not a genuine transaction. This finding was open to the Original Tribunal on the available evidence. The evidence before the Appeal Tribunal confirmed that the Original Tribunal’s finding that the invoice for $6,000 was not genuine was the correct finding.
85.The Appeal Tribunal also did not find Mr Roche’s evidence of his fees totalling $11,000 credible. His evidence was not convincing. It appeared to be a recent invention. The Tribunal is satisfied and finds that the cost of Mr Roche’s work for the respondents was $5,289 as set out in the invoice which he rendered at the end of the job in November 2015 ‘for the work carried out’ and which the respondents paid.
86.The Appeal Tribunal noted that the respondents’ evidence to the Original Tribunal was corroborated by the CBA records and the emails they provided to that Tribunal. It corroborated significant and important aspects of their evidence. Mr Hopkins and Mr Roche’s evidence did not credibly address why the respondents had obtained the CBA records to establish that they had paid $10,467.67 to the appellants, why Ms Nagle, through emails, was chasing up payment of the $6,000 and why Mr Roche had said to Mr Nagle that it (the repayment of $6,000) was out of his hands and they should contact Mr Hopkins.
87.Having properly assessed all of the evidence, the Appeal Tribunal finds that the Original Tribunal found, correctly, that either Mr Roche or his company ACTPRO acted as agent for Mr Hopkins and not as an independent stakeholder because they were only able to release the $6,000 on Mr Hopkins’ direction.
88.The Appeal Tribunal does not accept Mr Roche’s evidence which is inferred in his email to the respondents dated 5 July 2016 that he had paid the money to Mr Hopkins. He said at the appeal hearing that he had not paid this money to Mr Hopkins. As stated above, Mr Roche’s evidence to the Appeal Tribunal was not credible.
89.As to the second question identified by the appellants, the Original Tribunal found that the agreement required Mr Hopkins to direct Mr Roche to repay the $6,000 to Mr Dann and Ms Nagle and by not doing so the appellants had breached the agreement made in 15 October 2015 and Mr Dann and Ms Nagle were entitled to be paid damages for breach of this contract. The Original Tribunal was also satisfied that the appellants had contravened section 20 of the ACL which prohibits unconscionable conduct and that Cteck Hop Pty Ltd were vicariously liable to Mr Dann and Ms Nagle for Mr Hopkins’ breach.
90.Section 236 of the ACL provides that if a person suffers loss or damage because of the conduct of another person and that conduct contravened Chapter 2 or 3 the claimant may recover the loss or damage by action against that other person. A copy of section 236 is attached to this Decision.
91.The Appeal Tribunal is satisfied from considering the decision of the Original Tribunal that it found the appellants’ conduct was unconscionable conduct and contravened section 20 of the ACL which is in Chapter 2. As a result of this unconscionable conduct Mr Dann and Ms Nagle had suffered the loss of the $6,000 they had paid to Mr Roche and they were entitled to recover their loss or damage pursuant to section 236 of the ACL. The Original Tribunal assessed Mr Dann’s and Ms Nagle’s damages or loss at $6,000 and ordered that the appellants pay this amount to the respondents. The Original Tribunal did not find that Mr Hopkins had been paid the $6,000 as claimed by the appellants in the second question raised.
92.There was no evidence before the Appeal Tribunal which challenged the calculation of the damages of $6,000 awarded. The Appeal Tribunal is satisfied that the Original Tribunal’s findings were open to it on the available evidence.
Conclusion
93.The Appeal Tribunal is satisfied that there is no question of fact arising from the decision of the Original Tribunal that should lead to the decision being set aside. Nor is the Appeal Tribunal satisfied that there is a question of law arising from that decision.
94.Having reviewed the evidence and considered the submissions before the Original Tribunal, the decision made, and the evidence before the Appeal Tribunal and the submissions, for the above reasons the Appeal Tribunal is satisfied that the decision was correct and that it should be confirmed.
………………………………..
Presidential Member E Symons
Competition and Consumer Act 2010
Schedule 2
Chapter 5
Part 5.2
Division 3 – Damages
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.
(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
HEARING DETAILS
FILE NUMBER:
AA 11 of 2017
PARTIES, APPELLANT:
Cteck Hop Pty Ltd
Kenyon Hopkins
PARTIES, RESPONDENT:
Catherine Nagle
Christopher Dann
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Presidential Member E Symons
DATES OF HEARING:
26 June 2017
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