Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 22

Subordinate

Legislation cited: Court Procedures Rules 2006, Dictionary

Cases cited: Alexander v Ajax Insurance Co Ltd [1956] VicLawRp 70; [1956] VLR 436

Arnautovic & Sutherland t/as Jirsch Sutherland v Cvitanovic [2011] FCA 809

Chetty and Anor v Automotive Computer Diagnostic Centre (AC/DC) Pty Ltd [2016] ACAT 38

Lombard Australia Ltd v Smeaton [1966] VicRp 37; [1966] VR 272

Onesteel Manufacturing Pty Ltd v United Kg Pty Ltd [2006] SASC 119

McAllery v Alta Building & Developments Pty Ltd [2014] NSWCATCD 106

Passey v Bandarage t/as City First Solicitors [2002] ACTSC 105

Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 468

Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283

Reid v Brett [2005] VSC 18

Smith v NSW Bar Association [1992] HCA 36

Spain v Union Steamship Company of New Zealand [1923] HCA 21

Vizovitis v Ryan [2014] ACTSC 243

Williams Love & Nicol v Wearne [2016] ACAT 18

1. The second applicant, Mr Schick, is a quantity surveyor. He qualified as a quantity surveyor in 1960,[1] and appears to have worked continuously in the building and construction industry in the ACT since then. He holds a diploma in architecture, but is not a registered architect. Mr Schick is a member of the Australian Institute of Quantity Surveyors (AIQS). He has on many previous occasions provided evidence as an expert witness in legal proceedings.
2. The first applicant, PCM Office Services Pty Ltd (PCM), is a service company through which Mr Schick conducts his quantity surveying practice. Mr Schick is the managing director and principal shareholder of PCM. In years past, PCM employed staff but has not done so since at least March 2014.[2]
3. The respondent, Mr Wai Man Mi, owns two residential properties in the Canberra suburbs of Franklin and Harrison. Mr Mi had contracted with a builder to construct a home on each property, and in each case had fallen into dispute with the builder. Both disputes were referred to arbitration and were heard concurrently by an arbitrator, Mr Tim Sullivan. In each case, the dispute concerned the value of the building work done or to be done after termination of the building contract, and hence the amounts owed between Mr Mi and the builder.
4. To assist in the presentation of his case at the arbitration, Mr Mi engaged Mr Schick to provide expert evidence regarding the value of the building work done, or to be done, on the Franklin block and the Harrison block.
5. Mr Mi then fell into dispute with Mr Schick regarding payment of Mr Schick's fees for his work, which is the subject of this proceeding.
6. In relation to the Franklin block, Mr Schick rendered 3 tax invoices on 13 March 2014 ($2,508), 26 March 2015 ($7,022.40 or $6,000 if paid by 10 April 2015) and 29 September 2015 ($14,014 or $12,500 if paid by 15 October 2015). Mr Mi paid the first two invoices,[3] but not the third.[4] Mr Schick rendered the first invoice in his own name, but the second and third under the name of PCM.
7. In relation to the Harrison block, Mr Schick rendered 2 tax invoices on 26 March 2015 ($6,314 or $5,500 if paid by 10 April 2015) and 29 September 2015 ($9,702) or $8,730 if paid by 15 October 2015. Mr Mi paid $6,314 by way of payment of the first invoice and $5,186 towards the second invoice,[5] but the balance owing on the second invoice ($4,516) remains unpaid. Both invoices were rendered under the name of PCM.
8. Mr Schick and PCM brought proceedings in the Tribunal as a debt application to recover the unpaid fees totalling $18,530, plus interest plus the Tribunal filing fee. Mr Mi disputed his liability to pay any of the five tax invoices, despite payments made, and seeks an order that the application be dismissed. He does not make a cross-claim for repayment of any money to him.
9. At the Tribunal hearings on 15 August and 30 October 2017, Ms Tranzillo, solicitor, appeared for Mr Schick and PCM. Mr Mi represented himself.

1. For the hearing on 15 August 2017, Mr Schick and Mr Mi each filed a witness statement giving their respective accounts of events, referenced to documents annexed to the statement or otherwise filed in the proceeding.
2. Mr Schick and Mr Mi both gave oral evidence at the hearing on 15 August 2017, but unfortunately - and without criticism of either of them - I found their oral evidence to be often unreliable.
3. Mr Schick struck me as an honest man, but when giving evidence he became easily confused. A recent setback in his health may have contributed to his confusion, but there was no request for an adjournment of the hearing. Perhaps because English is his second language, I found much of Mr Mi's evidence to be confused and confusing.
4. I make no criticism of Mr Schick or Mr Mi. In Arnautovic & Sutherland t/as Jirsch Sutherland v Cvitanovic[6] the Federal Court, per Katzmann J, stated

...In the absence of notes it is, generally speaking, impossible to accurately recall the terms of any conversation six months after it took place. Human memory is notoriously unreliable. As Spigelman CJ recently observed ("Truth and the Law", The 2011 Sir Maurice Byers Lecture, 26 May 2011):

Witnesses can, without any dissimulation or propensity to lie, confidently assert the truth of conversations, observations and events which did not happen. The plasticity of memory impedes the truth finding process. This is not an uncommon phenomenon.

1. I concluded that the only reliable evidence for the determination of this dispute was the contemporaneous documents. I took into account the oral evidence only to the extent that it corroborated or explained contemporaneous documents. I put aside Mr Schick's confusion and did not draw any adverse inference against Mr Schick because of it.

1. On 29 August 2017, the applicants filed an application for leave to adduce further documentary evidence. Ms Tranzillo submitted that it was in the interests of justice that the further evidence be admitted. In support, Ms Tranzillo provided a statement from herself in which she stated that Mr Schick was unwell in the weeks prior to and during the hearing. She submitted that as a result of his poor health Mr Schick did not bring to her attention all the matters which the Tribunal needed to consider in order to ensure that the Tribunal's decision "is fair and that justice is done". Ms Tranzillo stated that after the hearing on 15 August 2017 Mr Schick told her that he had been unable to concentrate and found it difficult to recall events and to provide instructions.
2. Ms Tranzillo stated:

I have also observed in the course of the matter that the quality of Mr Schick's instructions have (sic) oscillated. For example, I have found that he is easily confused about dates and when things occurred.

1. Ms Tranzillo stated that after the hearing Mr Schick provided her with a copy of his 2015 diary, and that she caused every page containing an entry that relates to the Franklin block or the Harrison block to be copied. She sought leave to tender those pages. She also sought leave to tender a letter dated 23 August 2017 from Mr Schick to her in which he explains the manner in which he recorded time spent in his professional capacity and an error in paragraph 36f of his witness statement dated 23 June 2017 which refers to time spent on 10 September 2015 that should have referred to time spent on 1 September 2015. She also sought leave to tender the transcript of the arbitration before Mr Sullivan on 1 and 25 September 2015 when Mr Schick gave evidence.
2. Mr Mi opposed the tender of the further documents. He submitted that it is unfair that Mr Schick and PCM have a second opportunity to tender documents that were available prior to 15 August 2017 and that could have been tendered at the hearing (save of course Mr Schick's letter produced after the event). He pointed out that some pages of the 2015 diary are already annexed to Mr Schick's witness statement dated 23 June 2017, and that the applicants should not now be given an opportunity to tender more pages. Likewise, the explanations given in Mr Schick's letter dated 23 August 2017 could have been given during the hearing.
3. I heard the interim application on 30 October 2017. Despite his objection to Mr Schick's further evidence, Mr Mi produced a second statement of his own dated 29 October 2017 in which he pressed his claim that he and Mr Schick agreed on a fixed price for the reports Mr Schick was engaged to write and the methodology to be used.
4. I am grateful to Ms Tranzillo for her written submissions in support of the interim application, which fairly record settled principles regarding a grant of leave to adduce further evidence after a hearing but before a decision has been given. Ms Tranzillo referred me to the decision of the High Court in Smith v NSW Bar Association in which the Court said:

If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete ... or one in which reasons for judgment have been delivered ... It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. (references omitted)[7]

1. Ms Tranzillo also referred to the more recent decision of the Victorian Supreme Court, per Habersberger J, in Reid v Brett where his Honour stated:

The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:

(a) the further evidence is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably affect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier; and

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

In Smith v New South Wales Bar Association, the High Court of Australia stated that in such a situation it was difficult to see why "the primary consideration should not be that of embarrassment or prejudice to the other side." (references omitted)[8]

1. After weighing the competing considerations, I concluded that I should accept the 3 further documents into evidence. I reached that conclusion for several reasons.
2. First, none of the evidence is contentious.
3. The diary entries are a contemporaneous record of the time Mr Schick spent in his consideration of the Franklin block matter (identified by the code "S159") and the Harrison block matter (identified by the code "S160"). In most cases, the record does not identify how Mr Schick spent that time, but Mr Schick admits that he can no longer recall that detail.
4. Mr Schick's letter dated 23 August 2017 does no more than explain his method of recording his time and invoicing Mr Mi for his time spent and notes (presumably by reference to his diary) that his statement dated 23 June 2017 does not include 6 hours and 8 hours of time spent on 1 and 2 August 2015, respectively, although admitting that he does not know what he did on those dates. It also notes a typing error.
5. The transcript of the arbitration proceedings, whilst of limited relevance, is again an uncontentious and contemporaneous record of what was said. At the least, it gives me a basis to know when Mr Schick gave evidence during the arbitration and for how long. It also establishes that the dates in Mr Schick's tax invoices about when he attended the arbitration hearings are incorrect.
6. Second, the 'prejudice' referred to by the Courts in Smith and in Reid, in my view, should be understood as referring to prejudice to the conduct of the proceeding up to the point when the other party seeks to lead the further evidence. This may or may not entail 'prejudice' to the outcome. In other words, it entails a circumstance where a party could reasonably say "Had I known this further evidence was to be led, I would have done X or would not have done Y". Mr Mi did not complain about prejudice of that kind, nor can I envisage that he could reasonably have done so, having regard to the further evidence. I cannot envisage a basis upon which Mr Mi could have objected to the tender of the diary pages or the transcript during the hearing. Nor can I envisage any evidence that Mr Mi might have wanted to lead, or would not have given, had he known these documents were to be provided in Mr Schick's case. The letter dated 23 August 2017, although written after the hearing, does nothing more than confirm that which is apparent from reading the diary entries, and corrects an error in Mr Schick's statement. Both matters are uncontroversial and could have been readily addressed at the hearing without comment.
7. Third, I accept Ms Tranzillo's submission that Mr Schick had impaired capacity to provide instructions, to recall events and dates, and to deal with evidence at the hearing. As Ms Tranzillo submitted, his answers to questions "were muddled and confused". He confused his 2014 diary with his 2015 diary. He forgot to bring his 2015 diary to the hearing, despite being advised to do so. He had previously provided his solicitor with what he thought were the only relevant pages from his 2015 diary, yet did not provide many pages that contain entries concerning his work for Mr Mi.
8. I formed the view that Mr Schick's confusion has been present for some time. His reports contained simple mathematic errors. His invoices referred to dates on which work was done when it was not, and omit dates when work was done. In relation to his statement dated 23 June 2017, Mr Schick said:

I was in a rather difficult situation mindwise and I couldn't really concentrate on what I was doing and I did ask Teresa [Tranzillo] if she could draft a statement and I would look at it, but I didn't look at it thoroughly enough.[9]

1. In my view, it would be unfair for Mr Schick not to be able to present this additional evidence where it is contemporaneous, relevant and not provided before or during the hearing only because of Mr Schick's apparent confusion.
2. Having accepted Mr Schick's 3 further documents, I also accepted Mr Mi's statement dated 29 October 2017, although it added little, and considered it in the context of the evidence that had already been given.
3. Fourth, my overarching obligation is to make a decision which is fair. Where the best evidence in this case, and certainly the most reliable evidence, is the contemporaneous records of what occurred at the time and where the further proposed evidence adds to that contemporaneous evidence, the balance lay in favour of admitting it. I am not persuaded that Mr Mi is prejudiced by its admission: in some respects it assisted his case.

1. Mr Schick and PCM bring their claim as a debt application, which is often described as a liquidated demand. In relation to civil dispute applications, this being such an application, the Tribunal has the same jurisdiction and powers as the Magistrates Court.[10] For this reason and to this extent, in my view the Tribunal can refer to and rely upon the Court Procedures Rules 2006 (the Rules) as and when appropriate, although it must also have regard to the Tribunal's statutory obligation under section 7 of the ACT Civil and Administrative Tribunal Act 2008 to ensure its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice.
2. 'Liquidated demand' is defined in the Dictionary to the Rules as follows:

liquidated demand means a claim for payment of a specific sum of money the amount of which is worked out or capable of being worked out by calculation, and includes a claim for interest up to judgment.

1. The definition is consistent with the common law. In Spain v Union Steamship Company of New Zealand[11] a party contended that a claim for 'reasonable expenses' in an action for payment of a debt, or a liquidated demand, was inappropriate. The High Court, per Starke J, described the objection as 'untenable', stating that a liquidated demand arises "whenever the amount to which the plaintiff is entitled... can be ascertained by calculation or fixed by any scale of charges, or other positive data".
2. In Lombard Australia Ltd v Smeaton,[12] the Supreme Court of Victoria, per Hudson J, dealt with an appeal in relation to a hire-purchase agreement for a Holden motor car, and a liquidated demand after the owner had taken possession of the car and sold it for the "best price which could be reasonably obtained". Hudson J relied upon the High Court's decision in Spain v Union Steamship Company to reject the argument that the Court's need to quantify the best price that could be reasonably obtained precluded an action for payment of a debt or a liquidated demand. Hudson J said:

[I]n my opinion, the present case is governed by the decision of the High Court in Spain's Case, supra. ... It appears to me that this decision is an authority for the proposition that when under a special contract in certain events a sum is payable the amount whereof is not specified, save that it is to be a reasonable sum, then the amount thereof being capable of ascertainment by some objective test, that is by reference to the relevant circumstances by which its reasonableness may be judged, that sum is a liquidated amount

1. A claim in quantum meruit, meaning a claim under an implied term that a person must pay a reasonable sum for goods provided or work done where price is not fixed under an agreement,[13] can also be pursued by way of a liquidated demand.[14]
2. In this case, for reasons set out below, I find that Mr Schick's and/or PCM's fees under the agreement with Mr Mi were not fixed per a quoted price, contrary to Mr Mi's submission. They were to be calculated by reference to hourly rates set out in Mr Schick's letter dated 12 March 2014 referred to below. The matter remains a claim for a debt unpaid, with the sum to be determined by calculation. A claim by way of liquidated demand can arise even if calculation of the amount payable requires some measure of investigation beyond mere arithmetical calculation.[15] I am satisfied that the application was properly brought as a debt application.

1. In the case of an agreement for services to be provided on an hourly rate, calculation of the amount owing is not determined by simplistically counting hours spent and applying the hourly rate: there is an implied term in the agreement that the fees charged be reasonable by reference to the work done. Persons offering professional services on a time basis routinely review their time spent and discount where appropriate to ensure as best they can that their invoice is reasonable.
2. The implied term of a reasonable sum is particularly important in agreements where the total amount payable is left open. In Onesteel Manufacturing P/L v United Kg Pty Ltd[16] the Supreme Court of South Australia, per Debelle J, said:

As a matter of general principle and ordinary commercial common sense, it is quite obvious that, in the absence of a clear expression to the contrary, a provision in a building contract which entitles the contractor to be reimbursed for costs incurred will be subject to an implied term that the costs will be reasonably and properly incurred. In the absence of such a provision, the building owner has an entirely open-ended obligation or, looking at the other side of the coin, the contractor has been handed a blank cheque. Such a contract would put a premium on inefficiency and extravagance. There would be no proper accountability for incompetent or unnecessary work. There are, I think, compelling reasons why it is proper to imply a term that Reimbursable Costs should be reasonably and properly incurred.

1. An implied term that costs be reasonably and properly incurred applies also in relation to a solicitor's legal fees charged on an hourly basis. In Passey v Bandarage t/as City First Solicitors[17] the ACT Supreme Court, per Higgins J (as he then was), considered whether fees were excessive in the context of a legal costs agreement which provided that the solicitor would charge "at the rate of $225.00 per hour for each hour engaged on your work". His Honour noted that a solicitor owes a fiduciary duty to their client. His Honour continued as follows:

30. Mildren J considered this issue in Athanasiou v Ward Keller (6) Pty Ltd [1998] NTSC 27; (1998) 122 NTR 22. The solicitors in that matter had entered into a fee agreement with their client. At 29, his Honour noted:

"At common law, a costs agreement is enforceable if it is made to appear to the court that the agreement is `fair and reasonable', the burden of proof resting on the solicitor seeking to uphold the agreement...

[Further] ... the court has an inherent power as part of its general disciplinary function in relation to legal practitioners to supervise such agreements ..."

31. His Honour, therefore, concluded that, even if the Northern Territory equivalent of s 190 of the LP Act was complied with, the onus of establishing that the costs agreement was fair and reasonable rested upon the solicitor.

32. In relation to the concept of what is "fair and reasonable", his Honour, at 30, commented:

"The concept of `fairness' deals with the circumstances under which the agreement was entered. Thus an agreement has been held to be unfair if the solicitor used undue pressure on his client to sign it, or if the solicitor did not explain the agreement to his client ... The concept of `reasonableness', on the other hand relates to the terms of the agreement itself. So if the fees to be charged under the agreement are excessive the agreement is not reasonable..."

43. I am satisfied that these Agreements are demonstrably unfair, due to lack of informed consent, and unreasonable, due to their effect in producing a grossly excessive fee.

1. In Vizovitis v Ryan[18] the Supreme Court, per Harper M, quoted the Court's earlier decision in Passey v Bandarage as a statement of the relevant legal principles.
2. The Tribunal does not have jurisdiction to determine disputes concerning whether a solicitor's fees are excessive: that is the preserve of the Supreme Court.[19] However, in my view, the above-mentioned cases confirm the proposition that when services (particularly professional services) are provided and charged on an hourly basis, and the total amount payable is left to be determined as events unfold, there is an implied term that the fees charged for those services are reasonable.
3. Whether fees are reasonable will depend on the facts and circumstances in each case. Factors such as the extent to which total fees charged differ from an estimate given at the commencement of the work and the extent to which the service provider consulted with the client before proceeding with a task as the work unfolded (especially as to time needing to be spent on unexpected issues) would be relevant.
4. Onus of proof must be approached with caution, especially in Tribunal proceedings. However in my view, in a claim for unpaid fees, the person seeking payment must at least be able to demonstrate in a reasonably transparent manner the tasks done referenced to the time spent. Only with that information disclosed can the reasonableness of the time spent, and implicitly the fees charged, be considered. For example, in Onesteel, the builder itemised its costs by reference to different components and/or sequential tasks that it contended were necessary to construct the building. Having done so, the onus moved to the builder's client to show why, in relation to each costed component, the amount was "neither reasonable nor proper".[20]
5. In my view, anyone charging for a task done by reference to time spent, must be able to demonstrate how the time was spent, for example attending A, travelling to B, inspecting C, reading D, or drafting E etc, to enable consideration of whether the time spent on the identified or itemised tasks was reasonable.
6. I have approached Mr Schick's and PCM's fees in this way. By one means or another, it was incumbent on Mr Schick to demonstrate how his time charged to Mr Mi was spent. Consideration as to whether that time was reasonable could then occur.
7. I turn to the two blocks in question.

1. On 24 February 2014, Mr Mi sent Mr Schick an email stating that he had found Mr Schick's name "on the AIQS website', that he was involved in a building dispute arbitration and that he may need a witness report. He requested an appointment with Mr Schick to discuss the details. The dispute concerned the construction costs of Mr Mi's house on the Franklin block.
2. On 25 February 2014, Mr Schick telephoned Mr Mi and obtained details about the dispute. In substance, the house had not been completed, Mr Mi had terminated the contract due to lack of progress, and the builder had referred the matter to Mr Sullivan as the arbitrator appointed to resolve the dispute.
3. On 3 March 2014, Mr Schick met with Mr Mi at the Franklin block. Mr Schick's contemporaneous file note records their discussion about the value of the work done; that the builder was claiming for the value of work done on a quantum meruit basis; and Mr Schick's advice that "the strongest way to establish the value of work done in accordance with the contract would be to produce a measured estimate and pro rata costs with the contract sum." The file note also records that Mr Schick borrowed from Mr Mi "a bundle of papers from the adjudication claim" and that Mr Mi would email construction drawings to Mr Schick to assist in his consideration of the issues.
4. Mr Schick's diary for 3 March 2014, tendered in this proceeding, records that Mr Schick spent 30 minutes travelling to the site, arriving at 9:20am; that he met with Mr Mi at the agreed time of 9:30am; that he left the site at 10.30am; and that he spent a further 30 minutes on his return trip. Mr Schick said that Mr Mi asked him to prepare a report on the state of completion of the building as at 21 March 2013 and an opinion regarding the builder's compliance with the contract. Mr Schick's diary then records that Mr Schick spent a further 3 hours from 11:30am to 12:30pm and then from 3pm to 5pm attending to Mr Mi's matter. Mr Schick could not say what he did during those 3 hours, but it seems reasonable to surmise that he read the documents that Mr Mi had given him during that time.
5. Mr Schick's diary for 4, 5 and 6 March 2014 record by means of a line drawn down the page for those days and the code "S159" that Mr Schick spent more time in relation to the Franklin block of 4 hours, .4 of an hour and 1.2 hours, respectively, but Mr Schick could not say what he did during those periods.
6. On 11 March 2014, Mr Mi sent Mr Schick a draft of his counterclaim against the builder and asked for assistance with "the numbers" in paragraph 30 of the document.
7. On 12 March 2014, Mr Schick sent Mr Mi a letter regarding the terms of his engagement in relation to the Franklin block, which I set out in full:

I have received from you, construction drawings and contract documentation together with photographs dated 23/03/2013 of a partially completed house on [the Franklin block].

You have requested that I prepare a measured estimate of the cost to complete the house in accordance with the construction drawings and the contract documentation after allowing for work completed as recorded in the photographs.

I propose to undertake this work on a time basis at the discounted rate of $200 plus GST per hour. I anticipate that the time charge to prepare this estimate will total approximately $8,000. This does not include time of 10.8 hours already spent in viewing the site and reviewing the documents and evidence presented in relation to an adjudication hearing. In the event that I am required to present evidence in an arbitration or court hearing, my charge rate for preparation and attendance would be $280 plus GST per hour.

If this proposal is acceptable to you would you please sign the attached copy of this letter and return it to me.

1. Mr Mi did not sign or return Mr Schick's letter, but in my view it is clear by his conduct in continuing to engage with Mr Schick after receiving the letter that he had accepted the offer.
2. On 13 March 2014, Mr Schick and Mr Mi met at a cafe for approximately 1.5 hours to discuss the matter. Mr Schick's contemporaneous file note states that Mr Mi did not want Mr Schick to do a full measured estimate, and wanted Mr Schick only to "prepare an indication of cost to complete". The note records Mr Schick saying in reply that he would prepare "a 'rough estimate' of the cost to complete as an indication only".
3. The file note records that at the café Mr Schick gave Mr Mi his invoice dated 13 March 2014 for "time spent to date", being 11.4 hours at $200 per hour plus GST to a total of $2,508, being time spent up to but not including 13 March 2014.
4. Mr Mi contended that he received the invoice on or around 22 or 24 March 2014 after he told Mr Schick that he would not be requiring his services further, and that the invoice was invalid because it was dated 13 March 2013. The date on which Mr Schick provided the invoice is largely irrelevant, but I am satisfied that Mr Schick provided it on or about 13 March 2014. I have a copy of Mr Schick's contemporaneous file note to that effect.
5. I also reject the submission that the invoice was invalid. Whilst the typed invoice, at some point, was dated 13 March 2013 and was later hand-corrected to 13 March 2014, the typed incorrect year is nothing more than a typographic error.
6. Mr Mi also submitted that the first tax invoice was not payable because Mr Schick did not state his proposed terms of engagement until 12 March 2014 and then charged Mr Mi for time spent prior to that date. I accept that it was imprudent, at least, for Mr Schick not to have disclosed and reached agreement upon his terms of engagement before providing services, but that does not necessarily enable Mr Mi to avoid payment for work done. In the circumstances of this case, I am satisfied that formation of a contract arose by conduct or (alternatively) that Mr Schick's services were payable on a quantum meruit basis. Mr Mi continued to deal with Mr Schick after receiving the invoice and knowing his terms of engagement. Also, he could not reasonably ask for Mr Schick's professional assistance, send him documents to consider in the context of the advice he had requested, meet with him to discuss the documents and then not expect Mr Schick to charge for his time spent in doing so.
7. Mr Mi gave evidence (and Mr Schick accepted) that on 1 May 2014 he paid the invoice. At hearing, Mr Mi contended that he did so, not because it was his "obligation", but because the amount in question was not a large amount and because he believed he could claim it back from the builder in the arbitration proceeding. I reject the submission. In my view, Mr Mi's obligation to pay the invoice arose from his conduct in engaging Mr Schick. Whether he could claim the money back from anyone is irrelevant. Having considered the amount claimed under the invoice and the contemporaneous evidence of what Mr Schick did giving rise to the invoice I am satisfied that amount per hour ($200 plus GST) was reasonable. The time spent for the work done is more than I would have expected, but I find it was within the bounds of what is reasonable. I allow the claim.
8. In their further dealings during 2014 regarding the requested expert report, much debate, and disagreement, occurred between Mr Mi and Mr Schick about the kind of evidence that would assist Mr Mi at the arbitration. Mr Schick considered that a measured estimate, based on measurements of the cost of materials and the cost of labour to put the materials together, in addition to overhead costs such as fees, insurances and a site shed, was the correct or at least the better method for costing a partially completed building such as the house on the Franklin block. Mr Mi did not wish to take that approach, largely because of the cost of preparing a measured estimate, and contended that a "per square-metre methodology" could be a better option. Mr Schick disagreed.
9. I need not consider this debate. Mr Schick, like many professional persons engaged to provide a service, charged for his time spent on the matter at an hourly rate. In the context of a dispute concerning fees rendered for time spent, it is not to the point that Mr Schick spent time discussing different methodologies for costing the construction works on the Franklin block, or that Mr Mi and Mr Schick disagreed about the format of Mr Schick's evidence. Regardless of the content of the discussion, and whether there was dispute or agreement about how Mr Schick should proceed, Mr Schick still spent time having those discussions and was entitled to be paid for it according to his agreed hourly rate.
10. Also, I reject the proposition that Mr Mi could direct Mr Schick about how to proceed. Mr Schick was engaged to provide an independent expert report, and had an overarching obligation to provide that report in an impartial and objective manner. If Mr Mi did not wish to proceed in the way Mr Schick considered necessary and/or appropriate, Mr Mi's recourse was to pay Mr Schick for his time spent and to bring the engagement of his services to an end. Disagreement with Mr Schick's opinion or how he wished to proceed is not a basis for not paying Mr Schick's fees for time spent.
11. On 22 March 2014, Mr Mi sent Mr Schick an email as follows:

Tim Sullivan does not agree to extend the timetable [for the arbitration]. As such, the measure estimate for the Franklin property won't be required at this stage. Please do not proceed with any work on the measured estimate.

1. On 24 March 2014 at 11:31am Mr Schick sent an email to Mr Mi giving detail about what he considered to be Mr Mi's "best strategy" at the arbitration. Mr Schick's contemporaneous file note states that he did not invoice Mr Mi for that advice for his 'rough estimate' of the cost to complete the building.
2. Mr Mi replied by email the same day, 24 March 2014, sent at 4:49pm stating that Mr Sullivan had ordered the arbitration be stayed until an investigation was completed. Mr Mi also stated:

I will give you an update when there is new information. No further works are required at this stage.

1. By email sent on 26 March 2014, Mr Mi asked to meet with Mr Schick "to pick up the adjudication documents and settle the bill together". It would appear that Mr Mi wished to discuss Mr Schick's invoice dated 13 March 2014, and perhaps therefore incorrectly recollects when the invoice was provided. Nothing turns on that circumstance where, in my view, the invoice was reasonable and Mr Mi paid it.
2. It appears that after 26 March 2014 Mr Schick heard nothing further from Mr Mi, save for receiving payment of his first invoice, until 19 November 2014 when Mr Mi sent an email to Mr Schick advising that the arbitration was proceeding in relation to the Franklin block, and now also another property (the Harrison block), and again requesting Mr Schick's assistance. The email relevantly stated:

As such I may need to prepare to expert reports (one for each property) to look at the reasonableness of the building costs estimated by the second builder to build (sic) the houses from the point of termination to practical completion. I can send you the quote but I think it would be good if you could come to [the] houses for inspection. You haven't visited the second houses (sic)

Tim Sullivan wanted the expert report to be completed by 6 December 2014. It would be great if you could provide me with a quick response.

1. It seems that at some point Mr Schick gave an estimate of his costs to prepare an expert report in relation to the Franklin block, and that Mr Mi decided not to obtain the report, because on 24 November 2014 he sent an email to Mr Schick as follows:

Thank you for your response. After the costs was (sic) considered, I decided not to file an expert report at this stage the timetable suggested the claimants [which are assumed to mean the builder] will file an expert report by 8 December. If an expert report is filed, we are required to file an (sic) response to the expert report by 19 December.

1. On 10 December 2014 Mr Mi sent Mr Schick a copy of the expert reports filed by the claimants, the statements of claim, counterclaims, defences to claim, counterclaim and evidence-in-chief.
2. Mr Schick's diary records that on 15 December 2014 Mr Schick spent .3 of an hour reviewing the documents provided to him. His diary records that on 16 December 2014, Mr Schick spent 1 hour in the morning further reviewing the documents, and then met with Mr Mi at 2.00pm for 1.5 hours. The readable entry in the diary states no more than that the meeting occurred. Approximately 12 lines in the diary immediately following the notation of the meeting are redacted. Immediately following the redacted lines, Mr Schick records that at 4.10pm he telephoned Mr Sullivan and stated that he would not be able to prepare reports before 19 January 2015 and had advised Mr Mi to request in writing an extension of time until that date. Mr Mi did so the following day, and Mr Sullivan granted the extension. I accept that Mr Schick's time on 15 and 16 December 2014 totalling 2.8 hours was reasonably spent.
3. Mr Mi tendered a copy of his computer-generated diary for 16 December 2014, which contains the entry:

Meet Schick at [...] Street Garren (sic). Agreed on $5,000 per report. $280/hour for appearance in tribunal

1. Referring to his diary, Mr Mi contended that he and Mr Schick reached an agreement that Mr Schick would prepare reports for the Franklin and Harrison blocks using a "per square metre methodology", and that the reports would be $5,000 each. In closing submissions, Mr Mi contended that Mr Schick proposed a fixed price of $8,000, and that Mr Mi said that was too much. Mr Schick denied ever agreeing to a fixed price quote or doing a metre-squared rate estimate, irrespective of whether a report prepared on that basis would be cheaper.[21]
2. I am not satisfied on the balance of probabilities that an agreement of the kind Mr Mi claims was reached. It is inconsistent with subsequent evidence. The reports were not prepared using a per square metre methodology, the invoices were subsequently rendered on a time basis and on 1 April 2015 Mr Mi paid the second invoice dated 26 March 2015 totalling $7,022.40 discounted to $6,000 which was calculated by reference to time spent.
3. Where Mr Mi disputes liability to pay Mr Schick's second invoice dated 26 March 2015, despite having paid it, I turn to consideration of whether the claim for 22.8 hours for "inspections, listing, measurement and pricing" was reasonable.
4. On 17 December 2014, Mr Mi sent an email to Mr Schick advising that the claimant (builder) had that day filed an updated expert report and that Mr Sullivan had directed Mr Mi to address that latest version. Mr Mi attached electronic copies of evidence that he had given to Mr Schick earlier that morning and stated that he would provide some additional background information "in the next couple of days". Mr Mi also advised that Mr Sullivan had agreed to a new deadline of 19 January 2015 for Mr Mi to file his expert reports.
5. Arising from Mr Mi's email, Mr Schick's diary records Mr Schick spending 1 hour on 9 January 2015, 6.5 hours on 11 January, 3.5 hours on 12 January, 1.5 hours on 15 January, 2.5 hours on 19 January and .5 of an hour on 24 January in relation to the Franklin block matter, being a total of 15.5 hours.
6. However, Mr Schick produced very little evidence as to what he did during these 15.5 hours. The earlier correspondence suggests that on or before 19 January 2015, per the agreed extension date, Mr Schick might have given Mr Mi and/or Mr Sullivan a copy of his expert report concerning the Franklin block, but there is no mention of him doing so in his witness statement or in the chronology provided by his solicitor. Mr Schick states only "There were about three drafts of the report [I] submitted."[22] Mr Schick did not tender any of them. His application for leave to file further evidence did not include leave to file any earlier drafts. Ms Tranzillo said that she did not have the first draft.[23]
7. However Mr Mi provided a signed report dated 5 February 2015, 6 pages in length, marked in the footer "revised 22-1-15". I am left with the proposition of having to assess whether 15.5 hours of work, per Mr Schick's diary, is reasonable for preparing the report dated 5 February 2015 and any other earlier or later drafts produced prior to 26 March 2015.
8. Mr Schick's diary records several telephone calls or telephone messages to or from Mr Mi in February 2015 and on 6 and 10 March 2015, mostly to inquire of Mr Mi about the progress of the arbitration. The diary notes record that the arbitration was progressing slowly and was still in the claimant builder's case.
9. Mr Schick's invoice dated 26 March 2015 claims for 22.8 hours for "inspections, listing, measurement and pricing". It makes no mention of time spent speaking with Mr Mi after completing his report presumably filed on 19 January 2015, or preparing his revised report dated 5 February 2015, but I am prepared to accept this as another oversight in circumstances where the diary records the time spent. Although with considerable reservation, I am prepared to accept that Mr Schick spent an additional 4.5 hours in telephone conversations with Mr Mi, or perhaps also reading or sending emails in February and March 2015 concerning progress of the arbitration or working on the revised version/s of his report to arrive at an invoice total of 22.8 hours. I have concluded in the circumstances that the total time spent was reasonable.
10. The charge rate of $280 per hour, however, is contrary to the terms of engagement stated in Mr Schick's letter dated 12 March 2014.
11. In the hearing before me, Mr Schick agreed that the words "this work" in the third paragraph of his letter dated 12 March 2014 referred to the work described in the previous paragraph.[24] There is nothing to suggest that as at 26 March 2015, Mr Schick would be "required to present evidence in an arbitration". Nor is there any suggestion in the description of the work done, as stated in the invoice or in the primary records, that any of the time giving rise to the invoice of 26 March 2015 was spent in preparation for the arbitration, for example in conferences with Mr Mi's lawyers. What Mr Mi would do with the report or reports provided prior to 26 March 2015 was a matter for him. In my view, all of the work giving rise to the invoice dated 26 March 2015 should have been charged at $200 per hour plus GST. In the result, the amount payable (inclusive of GST), applying 22.8 hours, should have been stated as $4,560 plus GST ($456) to a total of $5,016 before any discount. I allow that sum for work done to that date.
12. Mr Schick's diary records that he spent 20.6 hours in April 2015 and 3.5 hours in May 2015 on the Franklin block matter. There is a record of an arrangement made on 14 April 2015 to meet with Mr Mi on 15 April 2015, but no record of him doing so or what was discussed on that subsequent day. There is a record of a telephone conversation with Mr Mi on 16 April 2015.
13. The diary records by a vertical line drawn on the applicable day page below the notation "S159" that Mr Schick spent time on 26 April (4.2 hours), 28 April (1.5 hours), 29 April (3 hours), 30 April (3.5 hours), 1 May (1.5 hours) and 4 May (.2 hour) on the Franklin block matter. There is, however, nothing to evidence or even indicate what Mr Schick did during this time. At the hearing on 15 August 2017, Mr Mi's primary objection to Mr Schick's invoices was that the hours spent, and the claim arising from those hours, was excessive. Notwithstanding that objection, Mr Schick did not produce any evidence to demonstrate how the time was spent. At hearing, Mr Schick said he would need to look at his diary in order to explain what he did, but had forgotten to bring it. After the hearing, he applied for leave to tender the relevant pages from the diary and I have granted that application, but the diary is of limited, if any, assistance. For the time recorded in April and May, it shows nothing more than a vertical line on a page. The core issue was and remains that there is nothing to evidence what Mr Schick did. In my view, any professional person charging substantial fees calculated on an hourly basis must be able to substantiate how their time was spent. Only then can a client understand 'what they got for their money' or can any analysis occur as to whether the time spent was reasonable.
14. The most curious aspect of the matter is that Mr Schick's next tax invoice rendered on 29 September 2015 does not make any claim for his time spent in April or May 2015, which adds to my concern about what was done. In his later correspondence dated 18 October 2015 and 26 March 2016 to Mr Mi demanding payment of his fees, Mr Schick maintained that the relevant period is 16 June to 25 September 2015. I can only record that, for the reasons given, if a claim had been made for time spent in April or May 2015 I would not have allowed it.
15. Referring to the tax invoice dated 29 September 2015, the first date for which time is claimed is 16 June 2015. Mr Schick's diary records that on that day he attended a 'pre-arbitration' meeting with Mr Mi's counsel at 8:00am and then (it seems) attended the arbitration until 1:00pm but was not called to give evidence. The diary records that Mr Schick was offered 27 July 2015 as a later date when he could attend the arbitration, which Mr Schick accepted.
16. Mr Mi agreed that the arbitration hearing occurred on 16 June 2015, but contended that Mr Schick was told he could leave the hearing shortly after his arrival and on that basis disputes the hours claimed (5 hours). In cross-examination, Mr Schick maintained "I left when I was told to go."[25]
17. By reference to the contemporaneous record in Mr Schick's diary, I am satisfied on the balance of probabilities that Mr Schick spent 5 hours between 8:00am and 1:00pm in a meeting with Mr Schick's counsel and then at the arbitration before being excused. It is, regrettably, a feature of litigation that witnesses (including paid witnesses) attend a hearing and are obliged to wait for considerable periods of time before being called or are not called at all. That is not the witness' fault. Their responsibility is to attend and be available to give evidence if and when called. Mr Schick did so in this case, and I am satisfied that having discharged his responsibility - attend the arbitration - his fees for doing so (5 hours at $280 per hour plus GST) were reasonably charged. In his diary, Mr Schick divided this time equally between the Franklin and Harrison matters. That was appropriate. I allow 2.5 hours.
18. Referring to the tax invoice, the next date for which Mr Schick claims for time spent is 31 July 2015. On that day he provided his consolidated report. His diary records by a vertical line 2 periods each of 2.5 hours spent on matter "S159" but no detail as to what was done.
19. Mr Schick's witness statement annexes an email from Mr Mi's solicitor referring to a proposed meeting between Mr Schick and Mr Mi's counsel to be held the day before (30 July 2015) at 9:00am, and Mr Schick's diary refers to that meeting between 9:00am and 11:00am (1 hour of which was attributed to the Franklin block matter), but there is no mention of that date in the tax invoice. Further, a reference in the diary to a meeting with Mr Mi's counsel on 31 July is struck through, corroborating my conclusion that Mr Schick did not attend a meeting with Mr Mi's solicitor and/or barrister on 31 July 2015 as claimed in the invoice. I have concluded however that Mr Schick should not be penalised for not stating the date he attended the meeting with Mr Mi's counsel. Per Mr Schick's diary, I allow 1 hour attributed to the Franklin matter at $280 per hour plus GST.
20. I have no evidence, however, as to what Mr Schick did in relation to the Franklin block matter for 5 hours on 31 July 2015. Mr Schick might have been concluding his consolidated report of that date, but that time would be in addition to a significant amount of time already spent and charged (22.8 hours) in his tax invoice dated 26 March 2015. Mr Schick said that his report took longer than it should have done because of the "drip feed" manner in which Mr Mi provided him documents, for example an inclusions list, but there is no mention in the consolidated report of any documents provided by Mr Mi in addition to those stated in his report dated 5 February 2015. Likewise, each version of Mr Schick's report concerning the Harrison matter (including the final consolidated report) list the same documents provided.
21. Also, the consolidated report for the Franklin block is a short and uncomplicated 7 page document, with 4 pages of photographs and a letter from the builder's solicitor. The first page states Mr Schick's name and qualifications, why he has prepared the report and his instructions. The second and third pages state the documents he was provided for the purpose of preparing his report, his "interpretation of 'completion'" relating to wall and roof framing, his descriptions of what Mr Schick saw when he inspected the building on 3 March 2014 and his observations from the photographs dated 23 March 2013 leading to his conclusion that the wall and roof framing was not complete as at that earlier date. As best I can tell, that conclusion was uncontroversial: in issue was the cost to complete the wall and roof framing and then to complete the house to practical completion. For the former task, the report states in paragraph 6 a stated cost for four components of work giving rise to a total of $21,000. For the second task, in paragraph 7.05, Mr Schick states only:

My estimate of the cost to complete the Stage of Practical Completion based on rates current at 14-5-2012 (the original completion date) is $574,000.

1. Mr Schick then adjusted that sum by 5.86% in accordance with a building cost index to arrive at a sum of $607,000 as at 15 January 2015 but gives no indication as to how he arrived at the primary sum.
2. Mr Schick's stated costs in paragraphs 6 and 7.05 are no more than bare assertion. Anyone giving an expert opinion especially in the form of an expert report, and especially an expert with Mr Schick's experience, would (or should) know that a report needs to state the facts relied upon and the reasoning applied by reference to those facts giving rise to the conclusion or end opinion expressed. Only by doing so can anyone reading the report understand the methodology giving rise to the conclusion or be able to question it.
3. It is apparent from reading the transcript of the arbitration proceedings on 1 September 2015 that the arbitrator, Mr Sullivan, had this difficulty. In response to the proposed tender of the consolidated report, and objection to it, Mr Sullivan said:

I mean, there is expert evidence which is purely opinion, and there's some of it which there can be an empirical basis to it. Quantity surveying is a mixture of both. I think there are some things which have to come down to a wet finger in the wind as to which way it's blowing, and I think particularly when it comes to elements of time and those sorts of things, that it may not be able to be tested to the nth degree, but when you're looking at a measured estimate of the cost of the work to reach practical completion in 701 (sic), it's really just a motherhood statement if there is nothing there to back it up.

Now, I take it that this witness has done it, but for some reason it's not provided. To this no way of meeting that - for the claimant to meet it, and there is no way for me to analyse it. The report is far from complete, put it that way, if it's going to be relied on as an expert report in that regard. This was the same in 6 - in paragraph 6. It's a global figure, if you like, and you come down to paragraph 705. There's no calculation to show how he got to $574,000. Based on rates of 14 May.

What were those rates? Adjusted for the increased cost of 5.86%, he's given a source for that and just multiplied that out. But that's the only signs that he's disclosed here. There seemed to be no basis to the opinion that is disclosed in the report other than, "I'm an expert in this area. That's the price I got to." So I do have a difficulty with the report I also have a difficulty with the - just accepting his interpretation of what the contract means as being the only evidence that relied on here. There is nothing to back it up. It's just an opinion as to what completion means, or it's what it means to him for the purpose of pricing.[26]

1. When the arbitration resumed on 25 September 2015, debate occurred about whether leave should be given to tender Mr Schick's measurements giving rise to his end calculations. Mr Sullivan said:

And I know that we had some discussion with the witness regarding his measurements, which, for one reason or another, still haven't been tendered, and I would expect, as the arbitrator, to at least be - have those in evidence. The fact that they have not been tendered rings some alarm bells for me.[27]

1. When it became clear that Mr Sullivan wanted to see the measurements, despite objection, in order to understand how Mr Schick arrived at his final costings, Mr Schick protested saying:

I regard those papers as my doodlings, if you like - whatever. But they're notes that are-have meaning for me. And to submit them to the court, I feel, would be totally inappropriate because people who don't know what I've written - what I've scribbled will place different interpretations on them. And that's hardly fair to anyone. It's certainly not fair to me.[28]

1. After further objection arising from these comments, Mr Sullivan replied:

I have serious reservations, as well, as to whether they're actually measurements as referred to in 7.01.[29] I mean, that's what he has relied on, but to say that there's a measurement-and this is no disrespect to Mr Schick - I would have expected that if we are talking about measurements, there would be measurements that could be verified at least by the witness-sorry - an expert witness of the other side so that it comes to me in some intelligible form.[30]

1. The matter was left with Mr Mi's counsel, but so far as I could ascertain Mr Schick's working documents constituting his measurements were never provided. Certainly they were not provided to me.
2. Of course, my role is not to review the correctness of Mr Schick's opinion about the costs to complete the wall and roof framing stage or to bring the house to practical completion, but to determine the reasonableness of the time Mr Schick spent writing his report. I mention these matters because I recognise that an expert report, and sometimes an excellent report, can be relatively short but has taken a long time to prepare because it is the distillation of much preliminary work. Given the scant nature of Mr Schick's report, and 22.8 hours already claimed for writing it, the measurement notes might have assisted in understanding the work done and consequently the time spent in arriving at the estimated costs, in the sense that the product might 'speak for itself' even if the time records to produce it are deficient, but no such evidence was given.
3. After giving his estimate of completion costs, Mr Schick expressed his opinions in the remaining 3.5 pages of his report about the builder's compliance with the contract, aspects of the builder's statement of claim and the legality of actions taken. It would appear from paragraph 2.03 that Mr Schick did so because Mr Mi "sought my advice in relation to the builder's compliance with the requirements of contract." These comments on legal matters were outside Mr Schick's area of expertise and were matters of legal submission for Mr Sullivan to determine. Understandably, the whole of the remaining pages of Mr Schick's report were not relied on by Mr Mi's counsel or were struck out,[31] but that is not a basis for finding that Mr Schick should not be paid for giving his opinions when Mr Mi had asked him to do so.
4. In all, doing the best I can, and after noting relatively minor differences between Mr Schick's report dated 5 February 2015 and his consolidated report dated 31 July 2015, I am prepared to allow 2 hours on 31 July 2018 as a reasonable sum for Mr Schick to prepare his consolidated report derived from any earlier drafts.
5. Referring to the tax invoice, the next date for which Mr Schick claims for time spent is 3 August 2015. His diary records that on that day he met with Mr Mi's instructing solicitor in Queanbeyan and spent 1 hour at that meeting in connection with the arbitration that continued that day. A tax invoice dated 25 August 2015 from Mr Mi's solicitor for legal services corroborates the meeting. I allow the hour.
6. Referring to Mr Schick's tax invoice, the next two dates for which Mr Schick claims for time spent are 31 August 2015 and 26 September 2015 for which he claims time attending meetings with Mr Mi's lawyers and attending the arbitration. Both dates are incorrect. It is clear from the transcript of the arbitration and from Mr Schick's diary that he attended meetings and the arbitration on 1 and 25 September 2015. For 1 September, Mr Schick's diary records 3.6 hours attributed to the Franklin block matter. For 25 September 2015, his diary records 2.5 hours attributed to the Franklin block matter.
7. For 1 September, the transcript records that Mr Schick was called to give evidence at 2:43pm and was excused at 6:17pm, but I have no evidence as to when he was asked to arrive at the hearing. There is also the question of apportioning his time between the Franklin and Harrison matters. Mr Schick's diary records time spent in relation to the arbitration from 8:30am; that he apparently attended the arbitration from 9:00am; that he was at the arbitration hearing (but not called) until 11:30am; and that he returned to the arbitration at 2:15pm before being called at 2.43pm.
8. In my view, it is not appropriate to dissect Mr Schick's time spent on 1 September 2015 in terms of what was billable and what was not. The diary makes clear that for all practical purposes his day was given over to the arbitration. Nor is it practical to make any sensible apportionment between the Franklin matter and the Harrison matter when the arbitration was considering both blocks concurrently. I am satisfied that Mr Schick reasonably claimed 7.2 hours in connection with the arbitration and his time should be apportioned equally between the two matters. In my view, his claim for 3.6 hours for the Franklin block recorded in his diary was reasonable and should be allowed.
9. I make a similar observation regarding Mr Schick's attendance at the arbitration on 25 September 2015. The transcript shows that his evidence resumed at 10:14am and was completed at 1:00pm. The transcript suggests a possibility that Mr Schick would continue his evidence after the lunch break but that did not eventuate. Mr Schick's diary records his attendance at or in connection with the arbitration from 9:30am to 2:00pm, and his apportionment of 2.5 hours to the Franklin matter. In my view, that time was reasonable and should be allowed.
10. Of concern is that the addition of Mr Schick's time spent on the dates noted in his tax invoice (after allowing for the several date errors and even allowing the recorded 5 hours rather than 2 hours on 31 July 2017) produces a total of 14.6 hours, yet the tax invoice claims for 45.5 hours. I could not find any evidence to support the remaining 30.9 hours of time, and certainly not 30.9 hours attending meetings with Mr Mi's solicitor and/or barrister or attending at arbitration hearings as claimed in the tax invoice.
11. In his letter dated 23 August 2017 to his solicitor, Mr Schick states:

Total times for each day are transferred to a monthly summary located on the last diary page for the month and monthly totals are transferred to a 'Time Record' sheet in the main file for the project.

1. Relying on the letter, I therefore considered the monthly summaries for June (2.5 hours), July (6 hours), August (4.8 hours) and September (6.1 hours) 2015, but those hours total only 19.4 hours. Even if I were to allow that time in full, despite the absence of evidence for how of some of that time was spent (for example 3.5 hours on Saturday, 1 August 2015), there appears to be no record or evidence to support the remaining 26.1 hours of billed time. Perhaps the discrepancy arises from time recorded in April and May 2015, but as mentioned I would not have allowed it: I have no evidence of what Mr Schick did during this time and it is not mentioned in the tax invoice.
2. In his letter dated 23 August 2017 to his solicitor, Mr Schick also states:

In my statement dated 23 June 2017 on page 6 I listed my time spent in conferences and hearings only. The list did not include time spent on, preparation or phone calls. Significantly it did not include 6.0 hrs on 1-8-15 and 8.0 hrs on 2-8-15. While I am unsure as to exactly what work I was engaged on during these dates it would not have been measurement or calculations as this work was completed prior to that time

1. Although this statement refers to the Franklin and Harrison matters generally, it is inherently unlikely that having met with Mr Mi's lawyers on 30 July 2015 for 2 hours, and not meeting with them on 31 July 2015, Mr Schick then spent 6 hours and 8 hours in meetings with Mr Mi's lawyers on Saturday and Sunday 1 and 2 August 2015, respectively. Also, the diary gives no suggestion of a meeting.
2. As mentioned above, in my view any professional person charging professional rates for time spent should be able to readily produce to their client on request a detailed record of time spent and how it was spent in order to substantiate a tax invoice. No such record has been produced. Doing the best I can, I can unravel from Mr Schick's scant diary notes only 12.6 hours of reasonably billed time in the period 16 June to 26 September 2015.[32] In relation to the invoice dated 29 September 2015, I allow that time at $280 per hour plus GST giving a total of $3,880.80.
3. For these reasons, after adding the totals for the 3 invoices ($2,508, $5,016 and $3,880.80) I find that a reasonable sum payable for work done in relation to the Franklin block was $11,404.80.

1. Mr Schick contended, and I accept, that on or about 19 November 2014 Mr Mi engaged him to prepare a report in relation to the Harrison block per paragraph 70 above. I accept too Mr Schick's submission that, by implication, he was engaged on the same terms as for preparation of the Franklin block report per paragraph 55 above.
2. As dealt with in paragraphs 70-73 above, Mr Schick was (understandably) not able to provide a report into the Harrison block by the proposed date (6 December 2014). He suggested that Mr Mi obtain an extension to 19 January 2015, which he did.
3. For the Harrison block, Mr Schick was engaged to provide a report on the state of completion of the building as at 8 April 2013 and upon whether the builder had reached the "lock-up" stage of completion. However, at the time Mr Schick was engaged, the building was complete and occupied. Mr Schick contended (and I accept) that to assess the state of completion as at 8 April 2013 he needed to rely on 9 photographs of the site taken on 10 April 2013 being 2 days after the builder issued a termination notice. Mr Mi also provided Mr Schick with a copy of the contract and the approved plans.
4. On 18 December 2014 Mr Schick visited the site with Mr Mi. Mr Schick's diary records 2 hours for the site visit, which presumably included travel time. I accept that claim is reasonable.
5. Mr Schick's diary records him spending 4.5 hours on 13 January 2015. There is no evidence as to how this time was spent, but it seems reasonable to presume Mr Schick spent this time preparing the report due on 19 January 2015. I accept that time is reasonable.
6. Mr Schick's diary records him spending three periods of 2.5 hours, 2.5 hours and 1.5 hours on 14 January 2015 against "S159" - the Franklin block matter - but the total time is then marked down to the Harrison block matter. However Mr Schick's monthly total attributes the 6.5 hours to the Harrison block matter, and I have treated it accordingly.
7. Mr Schick's diary then records him spending 1.5 hours on 15 January 2015 against "S159" - the Franklin block matter - but again the total time is marked down to the Harrison block matter in his monthly totals for January.
8. Mr Schick's diary then records him spending a further 1.5 hours on 19 January, 1.5 hours on 24 January 2015 and a further .5 hour on 30 January 2015.
9. There is no evidence as to what Mr Schick did over those 18 hours (or 17.2 hours in his monthly total records) but, in the absence of any evidence, I presume it was all spent producing the first 3 versions of his report. The first version was sent to Mr Mi, Mr Sullivan and other persons on 19 January 2015, the second on 22 of January 2015 and the third on 24 January 2015.
10. The first version is 3.5 pages. The first page states Mr Schick's name, qualifications, instructions and the documents provided to him. The first half of the second page records what Mr Schick could see from looking at the photographs and his opinion from looking at the photographs that the project had not reached lock-up stage. The balance of the report records Mr Schick's opinions about legal matters concerning the contract.
11. The second version of the report contains an additional paragraph entitled "item 4 cost complete" in which Mr Schick provides his preliminary estimates of the cost to complete the project by a new builder but no basis for the estimates.
12. The third version corrects the estimates but gives no basis for the corrections. The report in its third version is 5 pages, plus copies of the photographs that Mr Mi had provided.
13. 18 or 17.2 hours to produce such a short and seemingly straightforward report, without any statement of the facts relied upon or methodology used to arrive at his estimated costs to complete the project, is surprising (to say the least) but I am prepared to accept that it is within the bounds of what is reasonable.
14. Arising from further documents provided to him, on 11 February 2015 Mr Schick provided a supplementary report in which he explains why, by reference to those further documents, he needed to revise his opinions about the contract price.
15. Curiously, Mr Schick's diary of February 2015 makes no mention of time spent preparing the supplementary report, yet it is (as best I can tell) more detailed than the primary report. I certainly consider a further 2.5 or 3.3 hours to prepare this report is reasonable, in addition to the hours recorded for January 2015, such that I consider the total claim of 20.5 hours in Mr Schick's first tax invoice dated 26 March 2015 in relation to the Harrison block was reasonable.
16. Of concern is that Mr Schick has charged all those hours at $280 per hour plus GST rather than $200 per hour for preparation of the report, per the implied terms of the agreement as dealt with in paragraph 55 above. For the reasons given in paragraphs 84 and 85 above, amount payable should have been $4,100[33] plus GST: $4,510.
17. Mr Schick's next tax invoice for the Harrison block is dated 29 September 2015. It is an exact copy of the Franklin block tax invoice also dated 29 September 2015, save for the name of the block and a claim of 31.5 hours rather than 45.5 hours at $280 per hour.
18. As with the Franklin block, Mr Schick contended that he can no longer recall the work he did during these 31.5 hours and he relies on his diary for the claim. Having examined Mr Schick's diary, I strike the same difficulty as I did with the Franklin block.
19. The monthly summaries for June (2.5 hours), July (1 hour), August (11.8 hours) and September (6.6 hours) 2015 total only 21.9 hours. As with the Franklin block tax invoice, the dates in the Harrison block invoice bear little correlation to the dates in Mr Schick's diary. In addition to the errors in the invoice regarding time spent on 31 July, 31 August and 26 September 2015, there is no mention in the invoice of other significant time recorded in the diary (for example 8 hours on Sunday 2 August 2015), or in the diary as to what was done on those days.
20. Again, the discrepancy between the total of 21.9 hours in the monthly summaries and 31.5 hours in the tax invoice might have arisen from hours recorded in Mr Schick's diary during April and May 2015 that are not mentioned in the tax invoice of 29 September 2015, but for reasons mentioned I reject any claim for work done during those months. As with the Franklin block matter, there is no evidence of what Mr Schick did during April and May and Mr Schick's later letters dated 18 October 2015 and 26 March 2016 confirm 16 June 2015 to 26 September 2015 to be the range of his billable time.
21. Referring to the tax invoice, and drawing from the diary, for the reasons stated above the claims of 2.5 hours for time spent on 16 June 2015 attending the arbitration and 1 hour on 30 July 2015 for attending a meeting with Mr Mi's lawyers are reasonable.
22. The monthly summaries do not record any other time on the Harrison matter in June or July 2015, yet presumably at some time during July 2015 Mr Schick prepared his consolidated report dated 31 July 2015 which drew together the content of his third version of the first report and the supplementary report and expands upon them both. Mr Schick should not be penalised for his apparent failure to record his time preparing the consolidated report. Doing the best can, consistent with the Franklin block matter, for 31 July 2015 I allow 2 hours at $280 per hour.
23. Referring to the tax invoice, for the reasons stated in paragraph 106 above, the claim of 1 hour for time spent on 3 August 2015 is reasonable. The diary recording 10.5 hours on the weekend 1 - 2 August 2015, however, is problematic. There is no evidence as to what Mr Schick did during that time, and I cannot envisage what he might have done. His consolidated report was completed on Friday, 31 July 2015 (for which I have allowed 2 hours) at which point Mr Schick should have been fully prepared for his meeting with Mr Mi's lawyers on the following Monday morning. I also take into account that his tax invoice makes no mention of work done on 1 or 2 August 2015. There being no evidence as to what was done, or surrounding evidence that might permit an inference about what was done, I make no allowance for this time. I make the same observations about .3 of an hour shown in Mr Schick's diary for 5 August 2015.
24. Referring to the tax invoice, for the reasons stated in paragraphs 109 and 110 above, the claims of 3.6 hours for time spent on 1 September 2015 and 2 hours on 25 September 2015 are reasonable. The monthly summary does not record any other time on the Harrison matter in September 2015.
25. Totalling reasonable time spent between 16 June and 25 September 2015, I allow 12.6 hours for attendance at meetings with Mr Mi's solicitors or preparation and attendance at arbitration hearings.[34] I allow all this time at $280 per hour ($3,528) plus GST ($352.80) giving a total of: $3,880.80.
26. For these reasons, after adding reasonable sums for work done referenced to the 2 tax invoices ($4,510 and $3,880.80), I find that a reasonable sum payable for work done in relation to the Harrison block is $8,390.80.

1. In relation to the Franklin block matter, I have concluded that a reasonable amount due and payable was $11,404.80. Where Mi has paid $8,508 to Mr Schick in relation to the Franklin block matter, I find that Mr Mi owes Mr Schick a further $2,896.80.
2. In relation to the Harrison block matter, I have concluded that a reasonable amount due and payable was $8,390.80. Where Mi has paid $11,500 to Mr Schick in relation to the Harrison block matter,, I find that Mr Mi has overpaid Mr Schick by $3,109.20.
3. Where the overpayment exceeds the amount Mr Mi owes Mr Schick, and where there is no cross claim by Mr Mi against Mr Schick, I will dismiss the application.

[1] Transcript of arbitration proceedings, 1 September 2015, page 401, line 4

[2] Transcript of proceedings, 15 August 2017, page 120, lines 34 - 36

[3] Mr Schick received Mr Mi's payment of $6,000 on 1 April 2015 and accepted it as payment in full of the second invoice

[4] Witness statement of Eric Schick dated 23 June 2017, paragraphs 37, 38 and 40

[5] Witness statement of Eric Schick dated 23 June 2017, paragraphs 39 and 41

[6] Arnautovic & Sutherland t/as Jirsch Sutherland v Cvitanovic [2011] FCA 809 at [73]

[7] Smith v NSW Bar Association [1992] HCA 36 at [32]

[8] Reid v Brett [2005] VSC 18 at [41]

[9] Transcript of proceedings, 15 August 2017, page 131, lines 27 - 30. I do not in any way imply that Ms Tranzillo acted inappropriately. In my view, Ms Tranzillo did the best she could to prepare a statement that fairly and objectively reflected her instructions and annexed relevant documents in support of those instructions.

[10] ACT Civil and Administrative Tribunal Act 2008, section 22(1)

[11] Spain v Union Steamship Company of New Zealand [1923] HCA 21

[12] Lombard Australia Ltd v Smeaton [1966] VicRp 37; VR 272

[13] See Chetty and Anor v Automotive Computer Diagnostic Centre (AC/DC) Pty Ltd [2016] ACAT 38 at [18]-[25]

[14] Alexander v Ajax Insurance Co Ltd [1956] VicLawRp 70; [1956] VLR 436

[15] Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 468 at [471]

[16] Onesteel Manufacturing P/L v United Kg Pty Ltd [2006] SASC 119 at [36]; adopted with approval in McAllery v Alta Building & Developments Pty Ltd [2014] NSWCATCD 106 at [106]

[17] Passey v Bandarage t/as City First Solicitors [2002] ACTSC 105

[18] Vizovitis v Ryan [2014] ACTSC 243 at [389]

[19] Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [83] - [86]; Williams Love & Nicol v Wearne [2016] ACAT 18 at [24]-[30]

[20] Onesteel Manufacturing P/L v United Kg Pty Ltd [2006] SASC 119 at [109]

[21] Transcript of proceedings, 15 August 2017, page 59, lines 16-40

[22] Witness statement, Eric Schick dated 23 June 2017, paragraph 34g

[23] Transcript of proceedings, 15 August 2017, pages 128-129

[24] Transcript of proceedings, 15 August 2017, page 121, lines 23 - 34

[25] Transcript of proceedings, 15 August 2017, page 95, lines 38-39

[26] Transcript of arbitration proceedings, 1 September 2015, page 412 line 22 - page 413, line 5

[27] Transcript of arbitration proceedings, 25 September 2015, page 10, lines 44-47

[28] Transcript of arbitration proceedings, 25 September 2015, page 16, lines 14 - 19

[29] In paragraph 7.01 of the Franklin Report, Mr Schick stated "I therefore completed a measured estimate of the cost of work to reach the stage of Practical Completion."

[30] Transcript of arbitration proceedings, 25 September 2015, page 16, lines 24-29

[31] Transcript of arbitration proceedings, 1 September 2015, page 419, line 12 - page 420, line 25

[32] 16 June (2.5 hours), 30 July (1 hour), 31 July (2 hours), 3 August (1 hour), 1 September (3.6 hours) and 25 September (2.5 hours)

[34] 16 June (2.5 hours), 30 July (1 hour), 31 July (2 hours), 3 August (1 hour), 1 September (3.6 hours) and 25 September (2.5 hours)