Shamrock Finance Canberra Pty Ltd v ACT Wealth Services Pty Ltd
[2018] ACAT 11
•12 February 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHAMROCK FINANCE CANBERRA PTY LTD & ANOR v ACT WEALTH SERVICES PTY LTD & ORS (Civil Dispute) [2018] ACAT 11
XD 734/2017
Catchwords: CIVIL DISPUTE – directions following correspondence sent to Tribunal after substantive decision reserved
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 8, 23, 26
Subordinate
Legislation:ACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1) s 3
Cases Cited:Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Liangis v Conservator of Flora and Fauna [2016] ACAT 134
Tribunal: Senior Member E Ferguson
Date of Orders: 12 February 2018
Date of Reasons for Decision: 12 February 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 734/2017
BETWEEN: SHAMROCK FINANCE CANBERRA PTY LTD
First Applicant
KAREN MARGARET MURPHY
Second Applicant
AND:
ACT WEALTH SERVICES PTY LTD
First Respondent
MICHAEL BYSOUTH
Second Respondent
JACQUELINE BYSOUTH
Third Respondent
TRIBUNAL: Senior Member E Ferguson
DATE: 12 February 2018
ORDER
The Tribunal orders that:
The deed submitted by the respondent on 2 November 2017 is admitted to evidence.
None of the correspondence submitted by the parties after the decision was reserved, apart from the deed, will be considered by the Tribunal in reaching its decision.
………………………………..
Senior Member E Ferguson
REASONS FOR DECISION
Introduction
In this decision a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and a reference to the ‘Tribunal’ or the first person refers to the member who heard the matter.
The substantive dispute arises from the sale of a loan book by the first applicant, Shamrock Finance Canberra Pty Ltd to the first respondent, ACT Wealth Services Pty Ltd. At all relevant times the second applicant, Ms Murphy, was the sole director of the first applicant; and the first and second respondents, Mr and Ms Bysouth were office holders of the second respondent. Ms Murphy was also a guarantor under the deed of sale. The respondents are legally represented; Ms Murphy represents herself and the first applicant.
I heard this matter on 11 October 2017 and reserved my judgment. After the hearing but before I had delivered my decision the Tribunal received correspondence from the parties concerning the proceedings.
The matter was listed for directions to address the issues raised by that correspondence. At the directions hearing, after listening to the parties’ oral submissions, I reserved my decision to consider appropriate directions. My directions and the reasons for them are set out below.
The correspondence after the decision had been reserved
The correspondence in question is:
(a)Ms Murphy’s email to me of 17 October 2017 (Ms Murphy’s email).
(b)The respondents’ written submissions of 2 November 2017 (the respondents’ written submissions) with enclosed deed (the deed).
(c)The applicants’ written submissions of 3 November 2017 (the applicants’ written submissions).
Ms Murphy’s email
Ms Murphy’s email concerned an issue raised by the respondents at the hearing. At the hearing the respondents challenged the accuracy of calculations in an Excel spreadsheet titled ‘Payout Figure Calculation Sheet’ relied upon by the applicants to establish the amount of their claim. The respondents asserted that the calculation did not add up and that the stated total was more than it should have been. Ms Murphy maintained that the credit and debit amounts she entered in the spreadsheet program were correct and if there was an error in the outstanding balance calculated, which she did not admit, then it was due to an error in the spreadsheet formula.
In her email Ms Murphy sought to remind me that the outstanding balance figure was in dispute and urged me to “have the figures checked” before making my decision. She felt that she had not had sufficient notice to respond adequately when the respondent raised the issue at the hearing and said that after having an opportunity to check her spreadsheet she could confirm that the calculations in the spreadsheet balanced. She pointed to what she asserted was an error in the respondents’ methodology and she attached evidence, which was previously admitted in the proceedings, for my reference.
The Tribunal invites submissions
On 27 October 2017 the Registrar forwarded a copy of Ms Murphy’s email to the respondents’ solicitors and invited all the parties to provide to the tribunal by 3 November 2017 written submissions on next steps and any comment in relation to any of the issues raised in Ms Murphy’s email.
The respondents’ written submissions
In the respondents’ written submissions the respondents’ solicitors:
(a)made submissions as to appropriate next steps in proceedings;
(b)enclosed a copy of a document described as a ‘Deed of Sale and Assignment of Trailing Commissions’ signed by the parties and a representative of the National Australia Bank between the parties (the deed); and
(c)raised concerns regarding the difference between the document filed by the applicants in proceedings and the deed.[1]
[1] At paragraphs 1.4 to 1.7 of Mr Vuleta’s letter
The respondents were critical of Ms Murphy raising what they referred to as new evidence after the hearing, however they made no comment on the issue raised in her email. Instead the respondents provided new evidence of the contents of the deed in dispute by producing a document, which they submitted, was a true copy of that deed. The respondents said the deed had only come to their attention after the hearing.
The respondents raised the following concerns regarding the deed:
1.4 Since the date of the hearing it has come to the attention of the Respondent that:
(a)the contract relied upon by the Applicant in these proceedings may not reflect the form of contract signed by the parties; and
(b)Accordingly, the Applicant’s evidence in this matter may not be constituted with propriety.
1.5 To this effect we enclose a Deed of Sale and Assignment of Trailing Commissions signed by the parties and a representative of the National Australia Bank (Deed).
1.6 The Deed does not have any of the operative provisions at clause 5 which formed the basis of the Applicants’ claim at paragraphs 3 to 5 of the Application.
1.7 This new evidence supports the Respondents position at paragraph 5 to 6 of their timeline that the contract had been altered by Ms Murphy by the time the proceedings commenced.
The respondents submitted there were three appropriate options open to me regarding next steps being that:
(a)the further material provided by the parties be disregarded and the matter proceed on the basis of the evidence at the hearing; or
(b)the matter be decided on the basis of the evidence at the hearing and the further material provided by the parties; or
(c)the matter be retried before another tribunal Member.
The applicants’ written submissions
Ms Murphy for the applicants submitted that that the matter should be decided by me on the basis of all correspondence sent to the tribunal after I had reserved my decision. Ms Murphy also addressed the matters raised by the respondents at points 1.4 to 1.7 of their written submissions.
Ms Murphy argued that the applicants had disclosed in Annexure “A” to their application that the contract filed by them was not the final version of the contract and provided an explanation.
I have set out Annexure “A”, titled ‘Notes Regarding the Attached Documents’ in full below:
The attached Deed of Sale was the one signed by Karen Murphy, Michael Bysouth and Jacqueline Bysouth in the presence of their Business Banking Manager at NAB, and the one the bank relied upon for finance.
When this signed agreement was sent to Yellow Brick Road (YBR) for them to sign on behalf of Resi Mortgage Corporation (Resi), they asked that Resi be removed from the agreement although, they had originally provided me with the template. Instead they provided a Consent to sale and assignment letter [here the applicant refers to an attached email trail].
A new agreement with the same provisions and with Resi removed was signed and returned to YBR. I cannot find a copy of this amended agreement as I no longer have access to YBR email and my laptop computer where the file was stored is currently not working.
I signed the Consent to sale and assignment letter and passed it on to ACT Wealth Services for their signatures. (emphasis in original)
Ms Murphy submitted that the only difference between the document she filed and the final version of the deed was that the original was amended to remove the franchisor, Resi, as a party, resulting in the operative clauses being renumbered before the respondents signed the amended version. She sought to draw my attention to the corresponding clauses in the two documents, which she noted were apparent on the face of the documents.
Characterisation of correspondence
In my view, apart from the deed submitted by the respondents’ solicitors, all correspondence from both parties after I reserved my decision is in the nature of submissions rather than evidence.
The submissions made in Ms Murphy’s email after the decision was reserved were without the leave of the tribunal.
The respondents subsequently produced the deed and made submissions about it. The respondents’ submissions in so far as they relate to the deed, were outside the scope of the written submissions invited by the tribunal and accordingly made without leave.
Understandably Ms Murphy in her written submissions responded to the new issues regarding the deed raised by the respondents. It follows that her submissions on this point were also made without leave.
The issues
The matter was listed before me on 4 December 2017 for directions on the following issues:
(a)Whether Ms Murphy’s written submissions sufficiently explained the issue in relation to which deed is the correct deed in dispute.
(b)Whether the concerns expressed at point 1.4 to 1.7 of the respondents’ written submissions are still in contention.
(c)Whether the Tribunal should accept into evidence any of the correspondence forwarded by the parties after the decision had been reserved.
The directions hearing
During the directions hearing the parties agreed that:
(a)The deed submitted by the respondents on 3 December 2017 is the correct deed in dispute.
(b)The relevant clauses in the deed were, in all respects relevant to the proceedings, operatively identical to the document filed and relied upon by applicants. The only differences being those identified by Ms Murphy.
Mr Smith for the respondents told the Tribunal that his clients did not accept Ms Murphy’s explanation as to why she had submitted as evidence a document which differed from the deed and maintained the concerns expressed in their written submissions.
Mr Smith informed the Tribunal that the respondents had changed their position and now submitted that the appropriate course of action was that the matter either be reheard, preferably before another member; or decided on the basis of the evidence at the time of the hearing. He submitted:
We say that the matter be reheard so that evidence can be put to the tribunal in relation to the construction of the deed; the conduct of the parties in relation to the construction of the deed and then Ms Murphy can question the figures in relation to the schedule and we can go through that entire process again; or we have the matter heard on the basis of the evidence before the Tribunal at the time of the hearing…. I don’t see a middle ground in relation to any of this because this is not the way matters are run, with respect Senior Member, and it does open the possibility of a mistrial.
The law
The purpose of the tribunal is to ensure that applications are resolved as quickly as is consistent with achieving justice; and to ensure that decisions of the tribunal are fair.[2]
[2] Section 6 of the ACAT Act
In exercising my function section 7 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that I must:
(a)ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b)observe natural justice and procedural fairness.[3]
[3] Section 7 of the ACAT Act
I am bound by these requirements at all stages of a matter – whether I am managing progress of proceedings in full flow or finally determining them.
Procedural fairness requires firstly that parties are given adequate notice of the other parties case and sufficient opportunity to have their case heard and secondly that the decision-maker approach the case with an open mind.
The tribunal has made the following Procedural Directions to guide practice and procedure in the tribunal.[4]
3.1 The Procedural Directions are made under Rule 6 of the Rules and under the powers given to the tribunal in the Act to control proceedings and decide its own procedure.
3.2 The Procedural Directions apply only if there is no procedure prescribed or contrary provision in the Act, authorising laws, or in the Rules.
3.3 Parties should check the provisions of the Act, authorising laws and the Rules before using the Procedural Directions. There are General Procedural Directions relevant for all applications and Procedural Directions that are relevant to specific jurisdictional areas.
3.4 The Procedural Directions do not limit the power of the tribunal to decide that a different procedure should be followed in a particular application.
[4] ACT Civil and Administrative Tribunal Procedural Directions 2010 (No.1)
These Procedural Directions reflect the provisions of Section 23 of the ACAT Act which allows me to decide my own procedure in relation to a particular matter in a hearing or a step in dealing with an application if no procedure is prescribed under the Act or an authorising law for the application or the rules, provided of course I comply with section 7.
The Act expressly provides that the tribunal need not comply with the rules of evidence applying in the ACT[5] and that it may inform itself in any way it considers appropriate in the circumstances.[6] In this case there are no other limiting procedures prescribed by an authorising law or the application of the rules.
[5] Section 8 of the ACAT Act
[6] Section 26 of the ACAT Act
As Presidential Member Daniels observed in Liangis v Conservator of Flora and Fauna[7] that, “it is well established that once a hearing has been conducted there is an end to both written and oral argument.” This established principle is consistent with section 7 of the ACAT Act.
[7] [2016] ACAT 134
Presidential Member Daniels cited the following statement of McHugh J In Eastman v Director of Public Prosecutions (ACT)[8] Mc Hugh J at 29-31,
Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at a hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submission within a short period of the hearing- ordinarily seven to fourteen days. But a party has no right legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his other case, that opportunity is given at the hearing.
[8] (2003) 214 CLR 318
His Honour went on to cite with approval the following statement of Mason J in Carr v Finance Corporation of Australia Ltd [No 1][9]:
The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that the parties may file supplementary material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
Consideration
Ms Murphy’s email
[9] (1981) 147 CLR 246
The respondents say that the applicants made an error in calculating the outstanding balance owing under the deed, the applicants deny the assertion. The accuracy of Ms Murphy’s calculations was identified as a live issue at the substantive hearing and the Tribunal had evidence to determine it at that point. Ms Murphy in her email made further submissions on this point after the hearing without the leave of the Tribunal. I note that although the respondents were subsequently invited by the Tribunal to do so they made no further comment on this issue in their written submissions. I am satisfied that all parties had an adequate opportunity at the hearing to put their case, and respond to the other parties’ case, on what is a relatively straightforward issue.
I find no basis for retrospectively granting leave to Ms Murphy for the submissions made in her email. Accordingly I will not be taking the email into account in finally determining the application.
The deed
Although it is open to me to establish the relevant provisions of the deed in dispute on other reliable evidence, the best evidence is the deed itself to ensure accuracy and to avoid unnecessary confusion. I therefore allow the deed into evidence and note that the parties agree that it is the correct deed.
The respondents’ submissions on the deed
Since making their written submissions the respondents have conceded that the deed and the document relied upon by the applicants in the proceedings were operatively identical in all respects relevant to these proceedings. Accordingly, only two of the concerns raised by the respondents in their submissions regarding the deed remained unresolved:
(a)Whether the undisputed fact that the applicants relied upon a document in the proceedings which was identical in substance, to the extent relevant to the application, but not form to the deed might mean that their evidence in this matter may not be constituted with propriety[10]; and
(b)That the deed produced by the respondents supports a contention they assert was made at paragraphs 5 to 6 of their timeline filed in proceedings that the contract had been altered by Ms Murphy by the time these proceedings commenced.
[10] See 1.4 (a) and (b) of the respondents’ submissions of 2 November 2017
The first submission raises a new issue of propriety for the Tribunal’s consideration but takes no position on it. The second submits the deed is evidence of an issue raised by the respondents in proceedings prior to the hearing.
Does the production of the deed after I reserved my decision raise new issues such as to justify the acceptance of fresh evidence and argument about the deed? The answer to that question requires a preliminary assessment of the merit of the respondents’ issues.
Conclusions
I am satisfied that the production of the deed makes no material difference to the determination of this matter and the issues raised by the respondents at points 1.4 to 1.7 of their written submissions, to the extent they persist are without merit for the reasons set out below.
Ms Murphy made clear from the outset of proceedings that she was not filing the deed finally agreed upon by the parties but an earlier draft and provided an explanation for doing so.
The respondents only raised concerns about the propriety of the document she filed after the hearing when they found their copy of the deed. The respondents now concede that the deed they produced and the document relied upon by Ms Murphy were operatively identical in all respects relevant to these proceedings. In the circumstances there can be no reasonable suggestion that the appearance of the deed, which is consistent with the previously unchallenged explanation of the applicants, raises issues of impropriety by the applicants.
The respondents’ position stated in the counter claim filed on 6 October 2017 was that the deed they ultimately signed differed from that previously agreed by the parties, and that Ms Murphy did not draw their attention to those differences before they signed the amended document. In paragraphs 5 to 6 of their timeline they elaborated:
5. In or about March 2016 Ms Murphy altered the names and dated (sic) of the agreement modified Schedule 1 of the deed of sale and assignment of trailing commissions which had previously reflected the RCTI from the December 2015 period without informing ACT Wealth.
6. In or about March 2016 Ms Murphy emailed to Mr Bysouth a draft deed of sale and assignment of trailing commissions to purchase the loan book with changes to Schedule 1 however failed to advise Mr Bysouth of the amendments made.
The deed produced by the respondents is not of itself evidence of whether or not Ms Murphy drew the respondents’ attention to the changes before they signed it. All the parties had an adequate opportunity prior to the conclusion of the hearing to provide evidence and make submissions on this issue. To the extent I may find the issue relevant, I will only consider the submissions and evidence received before I reserved my decision when finally determining the application.
I do not accept Mr Smith’s submissions that the only appropriate course open to me is to either disallow all correspondence after the hearing or order the matter be reheard.
Section 23 of the ACAT Act allows me to determine my own procedures and I am required to ensure that those procedures are as simple, quick and inexpensive as is consistent with achieving justice. Those purposes are generally best achieved by respecting the finality of the hearing. I am admitting the deed into evidence for the reasons of clarity and accuracy previously referred to. None of the other material submitted by the parties after my decision was reserved will be considered by me in reaching my final decision. A re-hearing would only serve to delay final determination of this matter and cause further expense and stress to the parties.
………………………………..
Senior Member E Ferguson
HEARING DETAILS
FILE NUMBER: | XD 734/ 2017 |
PARTIES, APPLICANT: | Shamrock Finance Canberra Pty Ltd (First Applicant) Karen Murphy (Second Applicant) |
PARTIES, RESPONDENT: | ACT Wealth Services Pty Ltd (First Respondent) Michael Bysouth (Second Respondent) Jacqueline Bysouth (Third Respondent) |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | Chamberlains Law Firm |
TRIBUNAL MEMBERS: | Senior Member E Ferguson |
DATES OF HEARING: | 4 December 2017 |
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