John v Varghese Trading As v Guard Electrical Services (Appeal) - [2016] ACAT 136

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOHN v VARGHESE TRADING AS V GUARD ELECTRICAL SERVICES (Appeal) [2016] ACAT 136

AA 52/2016 (XD 138/2016)
Catchwords: APPEAL – civil dispute – disputed oral agreement for electrical work not included in inclusion list in building contract – work carried out – non payment of invoice – credibility – appeal: jurisdiction

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 79

Subordinate
Legislation: ACT Civil and Administrative Tribunal Rules 2009 r 21

Cases cited:B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Das v A & A Airconditioning [2011] ACAT 52
Devries v Australian National Railways Commission (1993) 177 CLR 472
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Eastman v Honourable Justice Besanko [2010] ACTCA 15
ISPT Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 43
Varghese trading as Guard Electrical Services v John [2016] ACAT 103

Tribunal: Presidential Member G McCarthy
Senior Member E Ferguson

Date of Orders:  2 December 2016
Date of Reasons for Decision:         2 December 2016
AUSTRALIAN CAPITAL TERRITORY            )     AA 52/2016
CIVIL & ADMINISTRATIVE TRIBUNAL                   )   (XD 138/2016)
BETWEEN:
THUINDYAL JOHN TITUS JOHN
Appellant

AND:
EALIAS VARGHESE TRADING AS V GUARD ELECTRICAL SERVICES
Respondent

TRIBUNAL: Presidential Member G C McCarthy
Senior Member E Ferguson

DATE:2 December 2016
ORDERS

The Tribunal Orders that:

The tribunal’s orders made on 9 September 2016 are confirmed and the appeal is therefore dismissed.
………………………………..
Presidential Member G C McCarthy
Delivered for and on behalf of the Tribunal

REASONS FOR DECISION

The appellant, Mr John, appeals from a decision of the tribunal given on 9 September 2016 pursuant to which the tribunal ordered him to pay the respondent, Mr Varghese, the amount of $5,181 in satisfaction of the amount owing to Mr Varghese pursuant to an oral agreement and in satisfaction of the amount due and payable by Mr John to Mr Varghese for work detailed in Mr Varghese’s invoice 511, plus the filing fee, interest and costs to a total of $5,734.45.[1]
[1] Varghese trading as Guard Electrical Services v John [2016] ACAT 103
In these reasons, the word ‘tribunal’ is used when referring to the tribunal that conducted the original hearing. The words ‘appeal tribunal’ are used when referring to this appeal tribunal.
Mr John appeared for himself on the appeal, as did Mr Varghese.
The factual background relevant to the appeal can be shortly stated.
The parties agreed that Mr John had a contract with Mansa Consulting Pty Ltd (the builder) to build a house on Mr John’s property; that the contract included an electrical inclusion list (inclusion list) and that Mr Varghese was engaged as the builder’s subcontractor to carry out the electrical work on the inclusion list.
At the original hearing, Mr Varghese contended that he and Mr John entered into a separate oral agreement for Mr Varghese to do extra electrical work at the house, in addition to the electrical work stated on the inclusion list. After completing the work, Mr Varghese gave Mr John an invoice for the extra work, being invoice 511 for an amount of $5,821.
Mr John agreed to pay for some of the items on the invoice, totalling $704, but disputed his liability to pay the remaining $4,741. He denied ever entering into an oral agreement with Mr Varghese. Mr John agreed that Mr Varghese had done extra electrical work, but denied that Mr Varghese had done any work pursuant to any contract (written or oral) with Mr John.
Mr John said that his only contract for electrical work was with the builder, Mansa; that he did not give his consent to the builder for any electrical work to be done in addition to what was included or stated on the inclusion list; he was therefore not liable; and the builder was liable to pay Mr Varghese for the additional electrical work.
The tribunal therefore needed to decide whether there was an oral agreement between Mr John and Mr Varghese for the extra electrical work. The tribunal heard evidence from Mr John and his wife who said there was no oral agreement, and from Mr Varghese and Dr Tewari who said there was an oral agreement. It fell to the tribunal to decide whose evidence it preferred.[2]
[2] Varghese trading as Guard Electrical Services v John [2016] ACAT 103 at [51]
The tribunal gave reasons for why it preferred the evidence of Mr Varghese and Dr Tewari, and why it was therefore satisfied and found that there was an oral agreement between Mr John and Mr Varghese for Mr Varghese to carry out extra electrical work and for Mr John to pay Mr Varghese for that work.[3]
[3] Varghese trading as Guard Electrical Services v John [2016] ACAT 103 at [51] – [63]
By application for appeal dated 6 October 2016, Mr John appealed to the appeal tribunal from the tribunal’s decision on three grounds, the first of which was in four parts. Those grounds (in substance) are:
Ground 1
(a)Mr John had not signed or made a contract with Mr Varghese for any additional electrical work.
(b)Mr John had not made any verbal or mutual agreement with Mr Varghese, as Mr Varghese claims.
(c)Mr Varghese was subcontracted by Mansa for the electrical work.
(d)Mr John’s full contract was with Mansa.
Ground 2
Mr John wished to produce the full contract signed with Mansa and the inclusion list with the cost and all the communication details with Mansa, and the payment transactions which were processed during the project (emails, statements and letters)
Ground 3
The decision was unjust as the decision was made without any basic evidence. The decision was made only by assumption in favour of Mr Varghese.
Mr John’s right of appeal arises under section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which permits a party to appeal on a question of fact or law. Section 79(3) requires the appellant to establish error of fact or law by the initial tribunal.[4]
[4] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and Anor [2013] ACTSC 219; Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11; ISPT Pty Ltd v Commissioner for ACT Revenue [2013] ACAT 43
In Das v A & A Airconditioning,[5] Acting President Chenoweth explained:
The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision; if that were so there would be no point in the original hearing…

Consideration

[5] [2011] ACAT 52 at [19]

The first ground of appeal, in its four parts, maintained the position that Mr John took at the original hearing that he did not enter into any contract (written or oral) with Mr Varghese, and his only contract was with the builder. The tribunal understood that contention[6] as did the appeal tribunal, but found otherwise. The tribunal preferred the evidence of Mr Varghese and Dr Tewari and found that there was an oral agreement.
[6] Varghese trading as Guard Electrical Services v John [2016] ACAT 103 at [34] – [48]
The question on appeal was not whether we agreed or disagreed with Mr John’s claim that there was no agreement between him and Mr Varghese, but rather whether the tribunal fell into error by concluding on the evidence before it that there was an oral agreement.
Referring to ground 2, we granted Mr John leave to introduce further evidence that was not before the tribunal. This evidence came in two parts.
First, Mr John provided us with a large volume of written correspondence between Mr John and the builder sent primarily by text message or email regarding performance of the contract between Mr John and the builder. Mr John relied on this further evidence to contend that where he communicated at all times with the builder in writing, it was highly unlikely that he would instead have communicated only orally with Mr Varghese. Mr John contended that there was no written communication between him and Mr Varghese regarding any agreement for Mr Varghese to do extra electrical work for Mr John because there was no contract between him and Mr Varghese.
We are not persuaded that the further correspondence between Mr John and the builder establishes any error on the part of the tribunal. The documents were not before the tribunal, and are not inconsistent or contradictory of the tribunal’s conclusion that there was an oral agreement between Mr John and Mr Varghese for electrical work in addition to that on the inclusions list. At best, the documents are a basis upon which Mr John could have invited the original tribunal to conclude, inferentially, that there was no oral agreement. The original tribunal could have drawn that inference, or not as it chose. It is not for the appeal tribunal to venture into that issue. Our role is only to determine whether the tribunal made an error of fact. We are not persuaded that the further correspondence establishes any error.
The second part of the further evidence was an email from Dr Tewari to Mr John sent on 4 March 2015, in which Mr John relied upon the following passage:
Thanks Titus for your response. Construction is and will be proceeding as per approved plan. However, I will keep providing you options to consider options to improve. Be assured that no changes will be made out of the approved plan without your agreement.
Mr John said that he never approved any changes to the approved plan (meaning approval of any extra electrical work) and relied on the email as showing that the builder had assured him that no changes would be made without his approval. Mr John then submitted that because the extra electrical work was done without his consent the builder is liable to pay Mr Varghese for the extra work.
There are a number of difficulties with this submission.
First, Mr John did not provide the email to the tribunal, although he could have done so. Nor is it inconsistent with anything that the tribunal said in its decision. Reading the email as a whole, it is ambiguous as to whether it refers only to the staircase or to the approved plans generally. However, even if we were to accept Mr John’s claim that it relates to all of the approved plans it is still nothing more than further evidence that the builder would not do further work under the contract between Mr John and the builder without first obtaining Mr John’s consent.
That does not assist Mr John on appeal because there is no suggestion in the tribunal’s decision that the builder did any extra electrical work under its contract with Mr John. The whole case was about whether Mr Varghese did separate extra electrical work under a separate oral agreement between him and Mr John, not the builder and Mr John. The email from the builder says nothing about that oral agreement.
Second, in our view the email is further evidence that there was an oral agreement between Mr John and Mr Varghese. If we accept Mr John’s submission that the builder had promised Mr John in writing, per his email, that he would not do or arrange for any further work to be done without first obtaining Mr John’s consent, and Mr John maintains that he never gave the builder consent for any further work, the question remains as to who asked Mr Varghese to do the extra electrical work. If it was not the builder, it could only have been Mr John.
For these reasons, in our view none of the additional evidence that Mr John introduced at the appeal hearing demonstrates any error on the part of the original tribunal.
On 30 November 2016, after the appeal hearing had concluded, Mr Varghese sent an email to the tribunal by way of a further submission regarding Dr Tewari’s email sent 4 March 2016. Mr Varghese did so without leave.
The appeal tribunal has not considered the further submission. Courts have repeatedly confirmed that supplementary submissions should be rejected, unless leave to provide further submissions is first given, even where a litigant is unrepresented.[7] The appeal tribunal considers those matters of procedure should apply equally in tribunal proceedings, even if leave might be more readily given in tribunal proceedings.
[7] Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; Eastman v Honourable Justice Besanko [2010] ACTCA 15
At the appeal hearing, in reference to each of the grounds of appeal, the central question was whether the original tribunal was incorrect or in error when finding that there was an oral agreement between Mr John and Mr Varghese for Mr Varghese to do the extra electrical work.
During the appeal hearing, we impressed upon Mr John several times that our role on appeal was not to determine afresh whether there was or was not an oral agreement, but whether the tribunal was in error by finding that there was an oral agreement. Mr John repeatedly said that he understood the appeal tribunal’s role, but did not refer to any evidence or advance any reason for why the tribunal made an error when preferring the evidence of Mr Varghese and Dr Tewari to the evidence of Mr John and his wife. Instead, Mr John continued to protest that he never entered into an oral agreement with Mr Varghese or any other subcontractor; that his only contract was with the builder; that he never gave consent for the builder to do any extra work; and he therefore should not have to pay any extra money for the extra work. This argument did not show error on the part of the original tribunal: it was simply a re-argument of his case.
For example, Mr John referred to invoice 510 that Mr Varghese sent to the builder for all the electrical work that he had done, meaning the work on the inclusions list and the extra work. Mr John took us to an email from the builder to Mr Varghese sent on 5 September 2015 in which the builder stated:
I need more clarity on invoice as such can you provide me two separate invoices (1), one as per my contract including necessary items ... (2) second invoice should be addressed to Titus John with all extra works.
Mr Varghese complied with this request by sending an invoice to the builder for the work done under the contract and a separate invoice (invoice 511) to Mr John for the extra electrical work.
Mr John then took us to his email dated 20 September 2015 to Mr Varghese in which he stated:
Hi v guard, all the work done at my place are by mansa construction within the contract limit, and i am pretty sure I have cleared all his bill, I don’t understand why you r sending the invoice to me which has no value, I have nothing to do with you, so pl never miss use my email any more.
Mr John referred to these documents, and contended that if there was an oral agreement between Mr Varghese and Mr John then Mr Varghese would not have sent invoice 510 for all of the electrical work to the builder. Rather, he said, Mr Varghese would have sent separate invoices. Mr John contended that the separate invoices were simply to make Mr John pay twice for some of the electrical work, especially where the quoted price in the inclusion list for the electrical work was less than the total amount that Mr Varghese wished to be paid under invoice 510 for all of the electrical work that he had done.
Whilst we understand the argument, it does not assist Mr John on appeal.
First, these documents were before the original tribunal and the argument was or could have been put at the time. Whether the argument is right or wrong does not demonstrate error on the part of the original tribunal in arriving at its finding that there was an oral agreement between Mr John and Mr Varghese for Mr Varghese to perform the extra electrical work.
Second, we do not agree that invoice 510 contradicts the existence of an oral agreement. It is at best equivocal. There is no dispute that Mr Varghese did extra electrical work, and wanted to be paid for it. The fact that the builder returned invoice 510 to Mr Varghese and requested separate invoices - one to the builder for work done under the contract and another to Mr John for the extra work - is consistent with the tribunal’s finding that Mr John and Mr Varghese had entered into a separate agreement for the extra electrical work and that it had nothing to do with the builder.
The fact that invoice 510, seeking payment for all of the electrical work, was for an amount less than the amount allowed for the electrical work listed in the inclusions list does not mean that Mr John paid twice for anything. Under the contract between Mr John and the builder, per the inclusions list, Mr John agreed to pay the builder a stated sum for the electrical work on the inclusions list. The fact that the builder was able to subcontract that work to Mr Varghese for a price less than Mr John had contracted with the builder for this work is uncontroversial. The difference represents the builder’s margin. There is no reason why the builder’s margin should be used, as Mr John contended, to pay for the extra electrical work.
The extra work, meaning work not on the inclusions list, was separate work for which separate and additional payment needed to be made. Where there is no suggestion that Mr John gave consent to the builder for this additional work and no evidence that the builder arranged for the work to be done, again it was reasonable for the tribunal to conclude that there was an oral agreement between Mr John and Mr Varghese for this additional work.
Referring to ground 3, Mr John contended that there was no evidence to show there was an oral agreement and that the tribunal’s decision was made “only by assumption in favour of” Mr Varghese. With respect, that is not correct. The tribunal heard evidence on oath from Mr Varghese and Dr Tewari about how the oral agreement was created, and the tribunal accepted that evidence. The tribunal did not just make an assumption.
We can see no error on the part of the tribunal by preferring the evidence of Mr Varghese and Dr Tewari to the evidence of Mr John and his wife. On questions of credibility (meaning who to believe) it has been long recognised that an appeal tribunal or appeal court should respect the viewpoint of the original tribunal or court who hears the witnesses, observes the witnesses giving their evidence and is best placed to make an assessment of credibility, even if the appeal tribunal or appeal court may have doubts about whether it would have reached the same conclusion.
In Devries v Australian National Railways Commission[8], the High Court said:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. See Brunskill [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53; Jones v. Hyde [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23; Abalos v. Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" (S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37, at p 47.) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" (Brunskill (1985) 59 ALJR, at p 844; 62 ALR, at p 57.)

Conclusion

[8] (1993) 177 CLR 472 at 479

For these reasons, referring to the grounds of appeal, we are unable to see any error of fact or law on the part of the tribunal. The decision under appeal will therefore be confirmed and the appeal dismissed. [9]
[9] ACT Civil and Administrative Tribunal Rules 2009 r 21
………………………………..

Presidential Member G McCarthy
Delivered for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	AA 52/2016
PARTIES, APPELLANT:	Thuindyal John Titus John
PARTIES, RESPONDENT:	Ealias Varghese Trading As V Guard Electrical Services
COUNSEL APPEARING, APPELLANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPELLANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	Presidential Member G McCarthy Senior Member E Ferguson
DATE OF HEARING:	29 November 2016