(Tony) Thanh Huu Thai v Thuy Ta
[2003] VSC 484
•17 December 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6488 of 2003
| (TONY) THANH HUU THAI | Appellant |
| v | |
| THUY TA | Respondent |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2003 | |
DATE OF JUDGMENT: | 17 December 2003 | |
CASE MAY BE CITED AS: | (Tony) Thanh Huu Thai v Thuy Ta | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 484 | |
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Appeal – VCAT – questions of law – construction of contract – architectural services - natural justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Pennell | Asia Pacific Lawyers |
| For the Respondent | Mr Y. Zaman | Hartleys Lawyers |
HIS HONOUR:
The Proceedings
Thanh Huu Thai has appealed to this court from the decision of VCAT in civil proceedings commenced by Thuy Ta against him in which she alleged false and misleading conduct under the Fair Trading Act 1999, and other matters, and claimed repayment of all amounts paid to him totalling $2,950. In those proceedings, Thanh Huu Thai filed a cross-claim seeking payment for unpaid architectural services of $1,000. The Tribunal ordered Thanh Huu Thai to pay Thuy Ta $1,625.00.
In his notice of appeal, Than Huu Thai has identified the following questions and grounds of appeal;
“QUESTIONS OF LAW RAISED BY THIS APPEAL:-
1.On the whole of the evidence did the Tribunal err in finding the Appellant had not provided the drawings he was obliged to pursuant to the Agreement between the parties (see Exhibit ‘THT-7’)?
2.Did the Tribunal err in law in the construction of the Agreement whereby it was a term of the Agreement that the basis upon which the Appellants fees would be payable in relation to the Town Planning Application for dual possession, was that the Appellant obtain the requisite Town Planning Permit?
3.Did the Tribunal err in the exercise of its discretion pursuant to Section 62 of the Victorian Civil and Administration Tribunal Act of 1998 in permitting the Respondent to be represented by a Solicitor in circumstances where the Appellant was unrepresented and not advised of his right to make application for such representation himself?
GROUNDS OF APPEAL
1.The Tribunal erred in law in the construction of the Agreement dated 6 February 2002 in finding that the Architect failed to provide drawings to the Council to enable the withdrawal of the Council Building Notice regarding the brick fence.
2.The Tribunal erred in law in the construction of the Agreement dated 20 June 2002 in finding that, with regard to the Town Planning Application for dual possession, the obtaining of the Permit was the basis upon which the Appellant’s fees would be payable.
3.That the Tribunal erred in law in denying the Appellant natural justice by not advising the Appellant that the Appellant was entitled to legal representation.”
The following orders are sought:-
“1. The Appeal is allowed.
2.The orders of the Victorian Civil and Administrative Tribunal (Civil Claims List) in proceeding no C4385/2002 made on 3 June 2003 be set aside, and in lieu thereof the following orders be made:-
‘1.The Respondent’s (Applicant’s) claim is dismissed.
2.The appellant’s (Respondent’s) counter claim is allowed and the Respondent (Applicant) pay the Appellant (Respondent) $1,000.00.
3.The Respondent (Applicant) pay the Appellant’s (Respondent’s) costs of the Appeal and of the proceeding in the Civil and Administrative Tribunal.
4.Such further or other orders as the Court deems appropriate.’”
Question 1 and Ground 1
Apparently the respondent, Thuy Ta, engaged the appellant, Than Huu Thai, to perform a number of tasks for her pursuant to different agreements. The particular task and agreement in question here related to a problem that arose with the Council concerning a brick fence over which a non-compliance notice had been issued. Evidence was led of an agreement between the parties in the following terms:-
“I, Thuy Hong Ta
I give authority to Mr Thank Thai Architect to due with the Maribyrnong City Council re brick fence.
The fee is of $800.00 plus disbursements. Mr Thai shall arrange sketch/drawings discussions and correspondence to council. Without re-visit site trip shall be charged extra at per agreement in hourly rate.
Your consent/signed.”
It was common ground that the appellant provided a sketch plan for the fence to the respondent but not to the Council.
The Tribunal dealt with the question in the following way:
“3.Receipt of council building notice regarding non-compliance re brick fence. It is accepted that the fee for undertaking work by the architect for this work was to be $800 of which $100 has been paid, that the work was to include drawings. It is noted that the architect advised the owner’s father and the fence notice to be withdrawn. In circumstances where a letter was written but no drawing provided, it is found that a reasonable fee for this job was $500. The owner must allow the architect $400 for that item.”
Counsel for the appellant submitted that the ruling was plainly contrary to the evidence because a drawing was provided. Counsel for the respondent submitted that what the agreement required was the provision of a sketch or drawings to the Council and that the Tribunal could make no other findings than that such a sketch or drawing had not been provided.
It is plain from the transcript of the hearing before VCAT that the Tribunal’s task was made very difficult because of language difficulties, the lack of legal representation on the part of the present appellant and the pressure of time. Care needs to be taken, therefore, not to require unrealistic precision from the Tribunal in its findings. It seems to me, however, that I would have to read too much into the clear language of the above passage to conclude that the Tribunal interpreted the agreement in a way suggested by the respondent. The Tribunal has stated simply that it was part of the work to include drawings. That construction, was in my view, correct. There being no issue that a sketch plan had been provided by the appellant to the respondent, error of law has been shown – there was no evidentiary basis for the conclusion.
Question 2 and ground 2
The agreement in question here concerned the provision of architectural services in preparing material for an application for a town planning permit in relation to alterations to the premises at 15 Turner Crescent Braybrook. The agreement contained the following handwritten provision:-
"TOWN PLANNING SERVICE FOR DUAL OCCUPANCY $3200 incl GST (include plans, statement report, Council application fee, advertising) payments shall be in cash before Council submission."
The agreement also provided in "CONDITIONS OF ENGAGEMENT", clause 5,
inter alia
"The client understood that, the architect or his representatives shall not warranty to the client in achievement of approval (sic) by any authority."
The appellant had also included the following handwritten provision:-
"The architect shall not guarantee for any Council' s approval or permit."
The respondent, however, refused to accept this provision and it was deleted. There was no other evidence to suggest any oral term or qualification of the written term. The solicitor appearing for the respondent asserted that his client only entered into the contract on the basis of a guarantee of success in the permit application, but there was no oral evidence supporting that assertion.
Turning to the Tribunal's reasons, it stated the following:-
“4.Town planning application for dual (indistinct) the parties agree that the fee would have been $3200 if successful, of which $2200 was paid. Substantial work was done by the architect but the application was unsuccessful and the real point of difference between the parties is whether the fee would be paid only if the architect was successful in gaining the town planning permit. The parties signed a client-architect agreement which included a printed clause that the architect would not be responsible for obtaining the permit but which also contained a handwritten statement that the architect shall not guarantee for any council approval or permit. This had been crossed out. I find that the parties agreed that obtaining the permit was the basis upon which fees would be payable. The architect must allow $2200 for this item.
The net sum payable by the architect is $1625. The order is: the architect must pay the owner $1625 within seven days.”
The Tribunal, confined as it was to the written agreement, appears to have attached considerable significance to the exclusion of the handwritten clause which had been intended to exclude any guarantee by the architect of the outcome. Whatever might have been the legal effect of such provision or its removal, there remained the printed term which expressly stated, albeit clumsily, that the architect did not warrant achievement of approval. In addition there was the handwritten provision requiring payment of the fee in cash before submission of the architect's documents to the Council. In my view there is no proper legal basis to construe the agreement in such a way as to make payment of the architect's fee conditional upon obtaining Council approval. The decision also failed to take account of a document dated 25 August 2002 and signed by both parties under which it was acknowledged that an amount of $2200 had been paid and it was agreed that the balance of $1000 would be paid in a fortnight. That document (THT-A 22), also records the fact that architectural plans were to be submitted to the Council and that the respondent would not use a town planner and would "try at own risks and pay the balance of $1000 in a fortnight." This document provided both an admission by the respondent as to the terms of the agreement and a variation of the agreement.
In my view there was no proper legal basis upon which the Tribunal could reach the conclusion it did.
Question 3 and ground 3
This point can be dealt with briefly. The point raised in the Notice of Appeal is whether the Tribunal denied natural justice by not advising the appellant that he was entitled to legal representation particularly in circumstances where it permitted the respondent to be represented by a solicitor.
It is clear from the transcript that the issue of the right to legal representation by the respondent was canvassed, the appellant given the opportunity to object (which he did) and leave given to the respondent notwithstanding the objection. The appellant must, in all the circumstances, have been well aware of his right also to be represented. It was not necessary for the Tribunal to advise him of the right. His written submission to the Tribunal reveals that he was aware of the issue of legal representation and chose not to have legal representation because he could not afford it.
Natural justice did not require that the advice be given and in reality the advice would have made no difference. This ground is not made out.
Conclusion
The appeal should be allowed. I will invite further submissions on the orders to be made.
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