SMA Projects Australia Pty Ltd v Jovanovic
[2006] VSC 176
•10 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5944 of 2005
| SMA PROJECTS AUSTRALIA PTY LTD | Plaintiff |
| v | |
| STEVE JOVANOVIC | Defendant |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 April 2006 | |
DATE OF JUDGMENT: | 10 May 2006 | |
CASE MAY BE CITED AS: | SMA Projects Australia Pty Ltd v Jovanovic | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 176 | |
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VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal to Supreme Court – claim and counterclaim in the Tribunal’s jurisdiction under Part 9 of the Fair Trading Act 1999 – whether oral reasons inadequate so as to constitute or show error of law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Whelen | Middletons |
| For the Defendant | [See para [30] herein] |
HIS HONOUR:
Introduction
This is an appeal on questions of law, by leave[1], pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”), from an order of VCAT, constituted by a member thereof (“the Tribunal”). The order was made by the Tribunal on 8 April 2005 in two proceedings[2] in the jurisdiction of VCAT relating to consumer and trader disputes, under Part 9 of the Fair Trading Act 1999. Each of the proceedings was a “small claim” as defined by s.107A of the Fair Trading Act.
[1]Master Evans granted leave to appeal by order dated 14 June 2005.
[2]Numbers C532 of 2005 and C1355 of 2005.
The appellant, SMA Projects Australia Pty Ltd (“SMA Projects”), was the unsuccessful party in the two proceedings and the respondent, Steve Jovanovic (trading as Get Clean – “Mr Jovanovic”), was the successful party below.
Mr Jovanovic conducted a cleaning business and, in proceeding number C532 of 2005 commenced on 9 February 2005, he claimed the sum of $4,610 from SMA Projects. The “Application to Civil Claims List” referred to a contract dated 14 July 2004 for the cleaning of 48 units under construction for the sum of $14,000 which was completed on 21 September 2004 and “duly paid” two weeks later. The document continued that “part two of the contract provided for subsequent cleaning of $40 per hour, which cleaning was performed, and results in the debt claimed.” In relation to that claim, after hearing both proceedings together, the Tribunal ordered SMA Projects to pay Mr Jovanovic the sum of $4,610 as claimed by him.
In proceeding number C1355 of 2005 commenced on 22 March 2005 SMA Projects counterclaimed the sum of $8,530.50. The “Application to Civil Claims List” outlined the history of the dispute as follows: “this is a counterclaim … Get Clean did not adequately complete the works and despite requests to rectify faulty workmanship they did not complete their contractural obligations. Accordingly, another contractor was brought in to complete the works – costs associated with counterclaim.” The Tribunal dismissed the counterclaim by SMA Projects.
The amended notice of appeal filed 20 June 2005 stated three purported questions of law:
1)Whether an agreement made without consideration is enforceable. (I note that this question does not arise and was not the subject of argument.)
2)Whether a customer is obliged to pay for sub-standard work pursuant to the Fair Trading Act 1999 or otherwise. (This ill-drafted and generally stated question does not arise and again was not the subject of argument, at least in that form.)
3)Whether the Tribunal is obliged to make and expressly state findings of fact, and expressly state its reasons, before dismissing an application. (This general question at least indicates the basis upon which the appeal was brought and is more helpfully expressed in the grounds of appeal contained in the amended notice of appeal.)
There were three amended grounds of appeal that also indicate the issues said by the appellant to have arisen before the Tribunal, as follows:
“1.The [Tribunal] erred in considering that there was consideration flowing from [Mr Jovanovic] for any variation to the written cleaning contract between the parties dated 14 July 2004. What the [Tribunal] should have found was that the work done by [Mr Jovanovic] in October 2004 was no more than the purported discharge by [Mr Jovanovic] of [his] obligations under the July contract.
2.The [Tribunal] erred in considering that [Mr Jovanovic] should be paid for sub-standard cleaning work and that that gave rise to any liability pursuant to the Fair Trading Act 1999 or otherwise. What the [Tribunal] should have found was that [Mr Jovanovic] did not perform [his] own contractual obligations, as a result of which [he] was not entitled to be paid for the work done in October 2004.
3.The [Tribunal] erred by failing to make and expressly state findings of fact antecedent to, or to give reasons for, its order that [SMA Project’s] counterclaim be dismissed.”
Procedural background
Before considering what occurred before the Tribunal and the submissions made on behalf of SMA Projects on this appeal, I should briefly refer to the provisions governing the Tribunal hearing and the orders made by the Tribunal. The Tribunal is required to “act fairly and according to the substantial merits of the case in all proceedings”.[3] The Tribunal is bound by the rules of natural justice but is not bound by the rules of evidence or any practices or procedures applicable to courts of record (except to the extent that it adopts the same) and may inform itself on any matter as it sees fit.[4] The Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as all relevant statutory requirements and a proper consideration of the matter before it permit.[5]
[3]Section 97 of the VCAT Act.
[4]Section 98(1)(a)-(c) of the VCAT Act.
[5]Section 98(1)(d) of the VCAT Act.
Section 117(1) of the VCAT Act requires that the Tribunal give reasons for any order it makes in a proceeding within 60 days after making the order[6]. In the case of a small claim, as here, a party requiring written reasons must make a request for written reasons “before or at the time of the giving or notification of the Tribunal’s decision in the proceeding”.[7] In the present case, the Tribunal gave oral reasons at the time of making its order and no party requested written reasons. Section 117(5) of the VCAT Act provides that, if the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact. There are no express requirements as to the contents of oral reasons. The reasons for an order, whether oral or written, form part of the order.[8] Given that any party to a proceeding may, with leave, appeal on a question of law,[9] it is clear enough that the reasons required by s.117, when oral, must still be sufficient to enable the appeal court to follow, even if in short compass, the conclusions of fact and/or law constituting the basis for the orders made by the Tribunal.
[6]The period allowed is 60 days or “such other period as is specified by the rules or the President”. No doubt, in a busy Tribunal it will often be necessary or desirable to give oral reasons ex tempore (especially in relation to small claims) but it is noteworthy that the VCAT Act permits up to 60 days for the giving of reasons even if they are given orally.
[7]See s.28HH of Schedule 1 to the VCAT Act.
[8]Section 117(6) of the VCAT Act.
[9]Section 148(1) of the VCAT Act.
In the often quoted case of Sun Alliance Insurance Ltd v Massoud[10], Gray J (with whom Fullagar and Tadgell JJ agreed) said:
[10][1989] VR 8, 18 per Gray J.
“In my opinion, the decided cases show that the law has developed in a way which obliges a court from which an appeal lies to state adequate reasons for its decision.
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.”
As the Tribunal is required to give reasons, those reasons must be adequate. The adequacy of the Tribunal’s reasons will depend upon the circumstances of the case, but the appeal court must be able to ascertain the reasoning upon which the decision is based. I return to this topic later below.
The course of the hearing before the Tribunal
Mr Jovanovic represented himself before the Tribunal and also gave sworn evidence. SMA Projects was represented by a director, Mr Martin Strode, who also gave sworn evidence.
Mr Jovanovic testified that he was employed by SMA Projects to do cleaning work at 151-155 Burwood Road, Hawthorn where there were 49 units to be cleaned. Mr Jovanovic referred to a quotation which he referred to as his “contract” and to SMA Projects’ “response to my contract” dated 14 July 2004. However, as the Tribunal found, Mr Jovanovic performed the work pursuant to a “contract order” dated 14 July 2004 from SMA Projects, the material portions of which stated:[11]
“Please supply all labour and material required to undertake a Builders Clean at the abovementioned development in accordance with the architectural plans and our site meeting of Friday 9th July 2004.
This shall include cleaning all walls, doors, floors, windows (internal and external), mirrors, showerscreens, joinery items, and hardware/fittings/fixtures to all apartments and corridors throughout the development. …
This order does not include a second visit to undertake a quick dusting of the kitchen benchtops and vacuum of the floor to each apartment. This work shall be completed at a rate of $40/hour including GST. Based on our discussions half an hour per apartment is all that is required for this second stage of cleaning.
…
For the Sum of (incl. GST): $14,000.”
[11]There were also conditions of contract attached to the contract order but none, save as hereinafter mentioned, were treated as relevant by the parties.
Mr Jovanovic testified before the Tribunal that the cleaning commenced in August 2004 and there were still tradespeople making a mess and “it was almost impossible to clean”. Mr Jovanovic said that, on the advice of Darren Szadura (SMA Projects’ representative), he was told “just keep on cleaning, it is just a builder’s clean.” Mr Jovanovic said that he pointed out to Mr Szadura that they were having problems with concrete stuck to the aluminium frames and that they could not clean that and that if they were to clean that they could not be held responsible for any damage and that Mr Szadura said “let it go, I’ll get back to the tiler”. The site manager Mr Chris Wright also told Mr Jovanovic not to worry about this problem.
Mr Jovanovic testified to the Tribunal that the $14,000 was paid and that where the problem started was when he was asked to come back to do the final clean in October 2004. Mr Jovanovic said that when he took his crew down to the site in the beginning of October the conditions had not changed and the tradesmen were still making a mess. Mr Jovanovic said that this second stage under the contract was “$40 per hour per person”. Mr Jovanovic said that his cleaners were asking why they were back and the Mr Chris Wright was asking the same question and that Mr Szadura was saying “it is okay, just keep on cleaning”. Mr Jovanovic said that they therefore just kept on cleaning. After the cleaning of the apartments had been finished, Mr Jovanovic said that he came back on the second week of October to clean the external verandahs and the tiles. At this point Mr Martin Strode, on behalf of SMA Projects, came to him and said “Steve, I don’t think there is any point in cleaning, because there are still tradesmen making a mess.” Mr Strode then said, according to Mr Jovanovic, “I would suggest that you come back in a week’s time. I will give you a call.” After a week, Mr Jovanovic telephoned Mr Strode who said “we haven’t finished yet but I will certainly be in touch with you when we do.” However Mr Jovanovic said that three weeks later he sent his invoice dated 19 November 2004 for $4,610 and that had not been paid.
After Mr Jovanovic had given the above evidence to the Tribunal, Mr Strode told the Tribunal that the counterclaim for around $8,000 was for work that had to be undertaken that wasn’t completed by Mr Jovanovic – “that is what it cost us to get the project brought up to scratch, basically.”
Mr Jovanovic then called as a witness one of his cleaning staff, Mr Mira Cigetic. Mr Cigetic said the main problem while they were cleaning at the site was “working over other tradesmen and materials, lack of proper facilities like electrical facilities – the place just wasn’t ready for cleaning … it just didn’t make sense that we were cleaning while there was going to be other building works in the area, in the same area that we were cleaning.” In substance they were told: clean up, do your rough clean and we will have you back for a finishing clean later. In answer to the question, when they went back did the conditions change at all, Mr Cigetic said that quite often even as he was cleaning a unit he would finish one room, go into another room and by the time he got back to the first one it was dirty again – “either a plasterer had been in to finish something or fix something that needed retouching.” Mr Cigetic said “so it was even on the particular day that we were there sometimes we would have to go back and do it, and quite often we had occasion where we would come back the following day to continue work and we would find that what we had done yesterday, say, didn’t look clean and we know we had cleaned it.” Mr Strode cross-examined Mr Cigetic and pressed him as to his understanding of what a “builder’s clean” involved. Mr Cigetic accepted that a builder’s clean involved a complete cleaning of the premises and that the final clean would involve such things as wiping over benches, vacuuming, mopping and whatever needed doing to finish the job.
Mr Jovanovic then called another of his cleaners, Mr Nicholi Halas. Mr Halas also gave evidence about tradesmen interfering with the cleanliness of the premises. Mr Strode cross-examined Mr Halas and during the cross-examination sought to put some photographs to the witness. Mr Strode indicated to the Tribunal that he intended to put in evidence, in due course, about 500 photos taken “after Get Clean had actually left and we got another contractor in”. Mr Strode told the Tribunal that the photos were taken on 21 October 2004.
SMA Projects then presented its case. Mr Strode told the Tribunal that he moved onto the site in October 2004 in order to “finish off the project”. He formed the view and told Mr Jovanovic that the cleaning “wasn’t up to scratch”. There was paint on the window frames, paint all over the tiles, plaster on the window frames, gravel over the tiles, on the splashbacks and in the bathrooms – “it wasn’t detailed”.
Mr Strode then called Mr Szadura as a witness. Mr Szadura said that he was the project manager employed by SMA Projects at this site. Mr Szadura said, in explaining “a builder’s clean”, that “once all the trades have completed their works in the building we have to clean each of the apartments to make them suitable for occupation by the clients or the purchasers or each of the apartments. So the builder’s clean is basically to make sure that the apartments are presentable and are in a fit state for occupation, for people to take possession and start living.”
Mr Szadura testified to the Tribunal that there was a site meeting with Mr Jovanovic on 9 July 2004 at which SMA Projects requirements for a builder’s clean were explained. In substance Mr Szadura’s evidence was that he informed Mr Jovanovic that the builder’s clean involved a comprehensive cleaning of all the internal and external surfaces of the apartments and that he orally gave him an exhaustive list of what the cleaning should cover. Mr Szadura then testified “it was also discussed at this stage that we would want to do it in two stages. One being the main clean which would do all the works, but as we had trades also working in there finishing off works … there may be a need for Get Clean to come back as part of stage two, to do a quick vacuum and dust.” Mr Szadura indicated that the agreed rate for the second stage was $40 per hour “just for the company” (ie not per person).
Mr Szadura testified to the Tribunal that Mr Jovanovic did the cleaning work in August through to mid-September 2004. He referred to three occasions where he informed Mr Jovanovic that although they were happy with the general cleaning, they were concerned with the level of finish in relation to the window frames and the tiles. Mr Szadura said that he disagreed with Mr Jovanovic’s concern that he might damage these surfaces if he used a scraper or abrasive cleaners. Mr Szadura said that he left the site when Mr Strode took over. Mr Szadura said that Mr Jovanovic was fully paid for the first stage and he then baldly testified that Mr Jovanovic was paid “on the understanding that the defects … be rectified as part of the second stage of cleaning”.
At this stage Mr Strode again referred to the photographs, stating that one set were taken by him on 21 October 2004 of the defective work and the other set were taken in April 2005 (“after this case came along”) to show “what it should have looked like”. Mr Szadura was shown the photographs taken on 21 October 2004 and expressed the opinion that the work was not up to standard for a builder’s clean “for the pure reason they still do show paint splatter and plaster splatter on the surfaces.”
The Tribunal asked Mr Szadura “what about the fact that when this stage two clean was happening there was still workmen working on site? Do you agree that that was occurring?” Mr Szadura answered: “Yes, I don’t disagree with that. There were workers still on site doing what, I believe, were finishing types of works such as painting and just making sure it was all clean. That was the purpose in having stage two cleaning was to make sure that all the dust and dirt that they do create was cleaned up.”
Mr Jovanovic then cross-examined Mr Szadura. Mr Szadura maintained that there were aspects of the cleaning work that were not up to standard, in particular paint and plaster splatter. Mr Szadura agreed that there were tradespeople all over the place while Mr Jovanovic was cleaning. Mr Jovanovic asked him whether they were “making a mess” and Mr Szadura responded “it depends on what type of mess you are talking about”. Mr Jovanovic then explained his question in terms of “the sort of mess that painters can make and plumbers can make and tilers, without going into great descriptions of what these people can do with their boots on walking in and out.” Mr Szadura responded: “plaster splatter on the walls is caused by plasterers, and plasterers are before the painters. So all the apartments were fully painted and completed before Get Clean took over the works. So how does the plasterer come back and do plaster splatter on the walls?” Further cross-examination continued along these lines.
Mr Strode then told the Tribunal when he came on to the job he got another two quotes to undertake the cleaning works to bring them up to a standard “where we could settle this property”.
The following exchange then occurred between the Tribunal and Mr Strode:
“MEMBER: Are we talking about the final clean though?
MR STRODE: No we are talking about the builder’s clean.
MEMBER:But the builder’s clean had already been finalised and you had already paid them.
MR STRODE: Yes, but it hadn’t been done up to – it hadn’t been done to our standard.”
There was then further discussion with the Tribunal about the payment of $14,000 and Mr Szadura was again asked to confirm (and he did) that payment was made “on the understanding that all these defect works would have been tidied up.” The Tribunal asked whether that was in writing and Mr Szadura said that it was not.
Mr Strode then called as a witness Mr Stephen Athanasopoulos of Action Property Maintenance, a cleaning business. He gave evidence about the nature of a builder’s clean, similar to that given by Messrs Strode and Szadura, and then evidence about the “defective” cleaning work which his firm rectified. He spoke of his initial inspection of the premises and referred, inter alia, to paint on tiles, frames, splashbacks and bathrooms and to a general failure to clean to an appropriate standard. He commented on a number of the photographs. Mr Athanasopoulos was cross-examined and then, in re-examination, confirmed that his firm had finished the cleaning in early November 2004.
The Tribunal then heard brief submissions from Messrs Jovanovic and Strode. After a short adjournment, the Tribunal gave oral reasons as follows:
“Having heard the evidence on the claim from Mr Jovanovic against [SMA Projects] and a counter-claim by [SMA Projects] against Mr Jovanovic of Get Clean I accept that there was a contract entered into in or about July 2004 for cleaning services from Get Clean to [SMA Projects] at the property of 151 to 155 Burwood Road, Hawthorn. I accept the evidence that has been given that the contract was ultimately for $14,000 and that that was concluded in or about – final payment 27/09/04. The evidence also was that after that contract had concluded further work, as per the initial contract, was carried out by Get Clean for $40 an hour and that was to do a final clean of the building.
The evidence from both parties has been that during the time of both the builder’s clean and the final clean there were tradesmen still working on the property and in fact there was a delay in getting the property ready… I have heard evidence from various parties, including the two cleaners that worked for Get Clean and their evidence was that there were tradesmen going in and out all the time and that they would clean something and then go back and it would have been dirtied by a tradesman going in and out. Their opinion was that it was too early to do the final clean and it should have been delayed until after the tradesmen had finished.
I also heard evidence from the employees of [SMA Projects] and their evidence was that the tradesmen were there but the cleaning wasn’t up to scratch despite the tradesmen being there, and that ultimately Get Clean were told not to come back. I think that one thing that struck me during the evidence of Darren Szadura was when he said that he met Steve on the site in about mid-September and discussed the level of cleanliness and said he was happy with the general level of cleaning but concerned about tiles and window frames, that there was some plaster. The evidence was also that there was no written notice given by [SMA Projects] to Get Clean and the requirement for that is found in clause 5 and clause 22 of the conditions of contract … that in the event of any party’s failure to comply with the terms and conditions within seven days after written notice from the other party, it was conceded by [SMA Projects] that no written notice was given. It was also conceded that there was a plasterer present while the general cleaning was going on by Get Clean.
It is evident that the counter-claim by [SMA Projects] was only lodged with the Tribunal in late March of this year and was for the cleaning costs alleged to have taken place in November, actually October or November late last year. I accept that the $14,000 was paid by [SMA Projects] for the builder’s clean but it appears that there were – nothing was raised at that stage or payment wasn’t withheld at that stage, and after the $14,000 was paid for the builder’s clean, and despite Mr Szadura saying that that was on the understanding that the defects would be corrected, that [SMA Projects] re-engaged Get Clean to do a final clean for $40 per hour, as was the evidence.
The photos that were provided were two weeks after Get Clean had left the property. Anything could have happened during that period and the photos in April, while they show that the property was clean, don’t really add anything to SMA’s claim. They simply show that in April the property was in a particular condition but, as I said, anything could have happened in between October and April of this year. So for those reasons I’m finding in favour of the applicant Get Clean, and my order is that the respondent [SMA Projects] pay the applicant $4,610 for work already performed, and I am dismissing the counter-claim brought by [SMA Projects] against Get Clean.”
Grounds of Appeal
On the appeal SMA Projects was represented by Mr J Whelen of counsel and Mr Jovanovic was unrepresented. Mr Jovanovic attended throughout the hearing of the appeal but at the outset in substance indicated that he was not representing himself, was pleased with the decision by VCAT and had nothing further to say. However, at the conclusion of Mr Whelen’s submissions, he addressed the Court, at my invitation, but was not really able to deal with the grounds of appeal but rather attempted to reiterate his version of the facts.
Mr Whelen’s primary submission was based upon the appellant’s third amended ground of appeal, namely, that the Tribunal erred by failing to make and expressly state findings of fact antecedent to, or give reasons for, its order that SMA Projects’ counterclaim be dismissed.
Mr Whelen submitted that the Tribunal had failed to make or expressly state three essential findings of fact in this regard. These were: what standard of cleaning services Mr Jovanovic was contractually required to meet, whether he had met that standard and, if not, whether SMA Projects had as a result suffered loss and damage.
Mr Whelen submitted that the Tribunal’s reasons failed to disclose the basis for the dismissal of SMA Projects’ counterclaim and that the Tribunal’s reasons were therefore inadequate and that the failure to give adequate reasons constituted an error of law capable of founding an appeal, on a question of law, under s.148 of the VCAT Act.
Mr Whelen referred to the principles stated in Sun Alliance Insurance Ltd v Massoud[12] and in Copperart Pty Ltd v Commissioner of Taxation[13]. In the latter case Hill J pointed out that the appeal was “on”, and therefore limited to, a question of law and that it followed that the Court was not at liberty to find for itself the relevant facts from which the question of law might emerge. Accordingly, he found that the failure of a tribunal to make findings of material facts was, inter alia, a breach of the Administrative Appeals Tribunal Act 1975 (Cth) and an error of law.
[12][1989] VR 8, 18 per Gray J and see para [9] above. For further elucidation of these principles, see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-282; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No. 2) (2002) 6 VR 1, 31-34, 43-45; Hunter v Transport Accident Commission [2005] VSCA 1 at [21]; Intertransport International Private Ltd v Donaldson [2005] VSCA 303 at [18]-[19] and Spence v Gomez [2006] VSCA 48 at [65]-[66] and [73].
[13](1993) 26 ATR 327, 328-329 per Hill J.
In Hamilton v White,[14] Balmford J found that the failure by VCAT to make relevant findings of fact and its failure to give reasons for its decision together were of sufficient significance to constitute a vitiating error of law and added that, in the absence of relevant findings of fact, the material did not enable her to reach any conclusion as to the correctness or otherwise of the decision the subject of the appeal.[15] In that case, the Tribunal had provided written reasons and, as I have mentioned, s.117(5) of the VCAT Act expressly requires that written reasons include the Tribunal’s findings on material questions of fact.
[14][2000] VSC 28.
[15][2000] VSC 28 at [37].
In Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[16] VCAT had apparently given written reasons because Harper J adverted to the requirements of s.117(5) of the VCAT Act.[17] However, Harper J considered that common law imposed similar requirements and that a failure to provide adequate reasons constituted an error of law.[18]
[16][2005] VSC 136.
[17][2005] VSC 136 at [19].
[18][2005] VSC 136 at [20] to [23].
Finally, in Franklin v Ubaldi Foods Pty Ltd,[19] Ashley JA said:
“Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.”
[19][2005] VSCA 317 at [38] per Ashley JA (Warren CJ and Nettle JA agreeing).
It seems to me that a failure by VCAT to give adequate[20] oral reasons (where written reasons have not been requested) constitutes an error of law because inadequate reasons are not “reasons” within the meaning of s.117(1) of the VCAT Act, and further, or alternatively, because their inadequacy of itself constitutes an error of law, or leads to the inference that the Tribunal has not exercised its powers according to law.[21]
[20]In the senses explained in the authorities.
[21]For the latter approach see State Trustees v Transport Accident Commission (2002) 6 VR 359, per Bongiorno J at [37] to [40].
In my opinion, according to the oral reasons all the latitude that the nature and size of the dispute allows and taking into account the absence of legal representation,[22] the Tribunal’s reasons were in all the circumstances inadequate.
[22]Because each of the proceedings constituted “small claims”, the restrictions as to legal representation contained in s.28BB of Schedule 1 to the VCAT Act were applicable.
The Tribunal referred to the evidence and, in effect, found that there were tradesmen still working on the property both during the time of the builder’s clean and during the time of the final clean and, it would seem, the Tribunal also found that cleaned areas would have been again dirtied by tradesmen going in and out. However, while noting that there was evidence that the cleaning was not up to scratch despite the tradesmen being there, the Tribunal did not make any finding as to whether this important evidence was accepted or not. Given the evidence that the unsatisfactory aspects of the cleaning related in particular, and primarily, to paint and plaster on window frames, tiles and other surfaces and the further evidence (at least from some witnesses) that these conditions did not result from tradesmen coming and going, it was in my view incumbent upon the Tribunal to shortly express some conclusion, at least, on this aspect. Furthermore, while the Tribunal emphasised and, I would infer, accepted the evidence of Mr Szadura that he told Mr Jovanovic that “he was happy with the general level of cleaning but concerned about tiles and window frames, that there was some plaster (sic)”, the Tribunal did not make any finding as to whether it was satisfied or not that the cleaning was deficient in these respects. The Tribunal in effect found, as I understand its reasons, that it was not satisfied that the photographs taken in October 2004 showed that the property was not properly cleaned by the time Get Clean had left the site – because “anything could have happened” during the two weeks between Get Clean leaving and the photographs being taken. However the Tribunal failed entirely to deal with the oral evidence as to the faults in the cleaning at the time when Mr Jovanovic left the site for the last time.
Even if the Tribunal was not obliged in its reasons to deal expressly with each of the specific factual issues that I have mentioned in the previous paragraph, the Tribunal should at least have made general findings as to whether it was satisfied or not that the cleaning performed by Mr Jovanovic was in breach of his contract with SMA Projects and, in short compass, why it was or was not so satisfied. In the absence of such general findings, it is not possible to identify the reasons why the counterclaim was rejected. The reasons were therefore inadequate in this respect and such inadequacy constitutes or shows error of law for that reason – indeed, in my view, justice is not seen to have been done.
It is unnecessary to deal with the appellant’s other grounds of appeal and submissions, except to say this. The issues on the counterclaim also raised the question whether the work done, or purported to be done, by Mr Jovanovic in the final clean constituted work, at least in part, required to remedy deficiencies in stage one of the cleaning or constituted, as Mr Jovanovic alleged, final stage cleaning together with cleaning rendered necessary by the presence of tradesmen during the first stage “builder’s clean”. Again, the Tribunal’s reasons do not, even briefly, state a conclusion on this fundamental question, which is also relevant to the quantum of Mr Jovanovic’s claim. I note further that there appears to have been an issue before the Tribunal as to whether Mr Jovanovic’s claim for the second stage of the cleaning which was based on a rate of $40 per hour per person was contractually correct (or should that work have been charged at $40 per hour, irrespective of the manpower utilised, as Mr Strode contended). Whatever the strength or weakness of these rival contentions, the Tribunal expressed no conclusion about them. For these reasons, I consider that the Tribunal’s reasons were also inadequate in relation to the decision on Mr Jovanovic’s claim and vitiating error of law is made out.
Accordingly, the appellant’s appeal is allowed and the orders of the Tribunal in both proceedings are set aside. The proceedings will have to be remitted to VCAT for re-hearing before another member thereof. Any affidavits filed before the Tribunal can be used again but, regrettably, the parties will have to re-present their cases and call or recall witnesses as they see fit.
There will be an order that Mr Jovanovic pay the appellant’s costs of the appeal including reserved costs and any costs reserved in relation to the application for leave to appeal but Mr Jovanovic should be granted an indemnity certificate under s.4(1) of the Appeal Costs Act 1998.
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