Tachnat Pty Ltd v Farag

NCAT Appeal Panel|2019-02-12|Before: Christopher J

Introduction

This is an internal appeal from the Consumer and Commercial Division. The Tribunal gave its decision on 13 September 2018 (the Decision). The appellant is the respondent in the proceedings below. The matter arises from a dispute over an agreement for the provision of migration services entered into on 1 December 2014.
The matter has a significant history in the Tribunal in that the matter was previously before the Appeal Panel which ruled in the appellant's favour in respect of a procedural mistake whereby the matter was remitted to the Tribunal to determine again. Tachnat Pty Ltd v Farag [2018] NSWCATAP 67. The Appeal Panel sets out the history of the dispute at [2] - [4]. 2. The applicant in the Tribunal matter, Mr Roshdy Farag, entered into an agreement with Request International Migrant Services on 1 December 2014 for the provision of migration services. A schedule of fees was set out in the agreement. Under the agreement, the services were to be provided by a registered migration agent, Mr Hulio Gash. At the time, Mr Farag was in Australia on a tourist visa and wished to be granted a partner visa. Before being able to apply for such a visa, however, he needed to obtain a waiver of a condition on his tourist visa - a "No further stay" condition. 3. It appears that various services were provided under the agreement by Mr Gash acting as a migration agent over a period of about two years and various payments were made by Mr Farag, although the extent and nature of those services is in dispute. Some invoices were issued to Mr Farag by Request International Migrant Services and others by Tachnat Pty Ltd. The agreement was terminated by Mr Gash in early 2017. 4. Mr Farag disputes the amounts charged for the services provided and also states he was charged for services which were not in fact provided. He made an application to the Consumer and Commercial Division of the Tribunal on 8 August 2017 seeking to be repaid certain monies.

Proceedings Below

The background to the dispute between the parties is captured in the findings of fact made by the Tribunal at [35] and [44] as follows:
On the rehearing of the matter the Tribunal found that on the applicant's instructions, the respondent had carried out three items of migration work being:

The preparation of a Protection Visa Application at a cost of $1,440;
The preparation of an AAT Appeal at a cost of $2,200; and,
The preparation of the second 8503 (no further stay) application at a cost of $1,500.

Having paid $10,140 for $5,140 of work performed, the Tribunal found at [45] that the respondent should repay the applicant the sum of $5,000 being the difference between the amount paid and the agreement of the value of the work performed.
The Tribunal having found that the respondent providing the migration services had been paid for services not performed, then the applicant consumer was entitled to a refund. The respondent has brought this appeal against that decision.
In addition, in this appeal the appellant also agitates an issue concerning the standing of the various entities in the transaction concerning who are the correct parties to the contract, as well as a request to receive fresh evidence.

Grounds of Appeal

The Notice of Appeal did not set out any specific grounds of appeal contrary to the matters set out out in NCAT Guideline 1. Whilst the Notice referred at the relevant section to material attached, that material does not in our view constitute grounds of appeal, articulated or otherwise. The attached material from the appellant comprises proposed fresh material for which leave is required, some Tribunal correspondence and a copy of the decision under appeal.
However, the Notice of Appeal did refer to a submission. In this regard we note the written material dated 23 December 2018 and 21 January 2019 which has been filed and served. That material refers to annexure 1 which the appellant contends comprises the service agreement between the parties in the valid form. The dispute being that according to the appellant the service agreement relied upon by the respondent consumer and the Tribunal is not the valid version (being the version relevant to the agreement), but some earlier or draft version. The relevance of this argument being that the respondent and the Tribunal below have relied upon an invalid version which importantly omits a 'special condition'. That condition is phrased in the following terms which are located just prior to the acceptance and signing block after the Schedule of Fees and Charges: Special Condition: The Discount fee for Protection visa application will revert to $4555 if I do not continue with the partner visa application with Request International Migrant services.
The appellant, as we understand its submissions, complains that the Tribunal failed to understand and apply this special condition which has resulted in an incorrect ruling and order, being that the appellant must refund money for services not performed to the respondent. We will refer to this as Ground1. (The terms of the contract ground)
The appellant also agitates a complaint that the respondent brought his dispute against the wrong entity in that Tachnat Pty Ltd is not a party to the Service Agreement. We will refer to this matter as Ground 2. (The parties to the agreement ground).
This issue appears to centre on the appellant's view that the agreement was between the respondent and Mr Philip Bashi, the Managing Director of Request International Migrant Services.
The appellant says in his documents dated 23 December 2018 that: 1. The decision was not fair and equitable; 2. The decision was against the weight of evidence 3. The decision was against the Migration Act 1958 (Cth), section 313 and the MARA Code of practice, para 5 5(ii); and 4. Significant new evidence is now available that was not reasonably available at the time of the hearing.

The proper parties to the agreement ground

Dealing with Ground 2 first, which we refer to as the 'parties to the agreement' grounds, we note that in the current appeal orders were made on 1 November 2018 amending the appellant's name to Tachnat Pty Ltd and adding Philip Bashi t/as Request International Migration Services as a second respondent to the appeal.
We also note that whilst the agreement was between Mr Gash and Mr Farag, neither Mr Gash nor Mr Bashi performed services for Mr Farag. Mr Gash performed work as an employee of the appellant and as the Tribunal noted, Mr Bashi had referred Mr Farag to the appellant. We note that in the initial order of the Tribunal on 27 November 2017 orders were made against three parties - Tachnat Pty Ltd, Hulio Gash t/as Request International Migration Services and Philip Bashi t/as Request International Migration Services. It is apparent that Mr Gash is not the owner of the business name, Request International Migration Services. This was a finding of the Appeal Panel and was also clear from the signed statement of Mr Bashi dated 21 January 2019 which was filed in the appeal.
Mr Bashi appears to own the business name Request International Migrant Services. On the material before the Tribunal it appears that Mr Gash provided migration advice as a migration agent. His evidence before the Tribunal was that his company, Tachnat Pty Ltd, pays Mr Bashi a fee when Mr Bashi refers a client to the company. Mr Farag signed a document titled "Agreement for services and fees" bearing the name Request International Migrant Services and invoices were issued to him by both Request International Migrant Services and Tachnat Pty Ltd. We note that the Tribunal on 13 September 2018 made the following relevant findings of fact: (a) Mr Phillip Bashi is the proprietor of the business name Request International Migrant Services: this finding is supported by the 'Current Business Name Extract' dated 5 August 2017 and attached to the Application on file GEN 17/35656. (b) The Applicant paid Mr Bashi $10,140 towards migration work that was to be carried out for him: paragraph 20 (a) above. This is also confirmed by exhibit A1, being a receipt attached to the Application on file GEN 17/35656. (c) Mr Bashi paid that amount to Tachnat Pty Ltd Paragraphs 21(a) 22(b) and exhibit A1. (d) Mr Bashi referred the Applicant's migration issues needing resolutions to Mr Gash / the Company: paragraphs 20 (c ) and 21 (a). (e) The Applicant and Mr Gash entered into a written agreement on 1 December 2014. (f) Prior to and when the Applicant signed the Agreement the Applicant was unaware of the existence of Tachnat Pty Ltd: paragraphs 20 (b) above. (g) Mr Gash is an employee of the Company and as an employee of the Company he performed work for the Applicant: paragraph 22(b) above. (h) The Company and / or Mr Gash performed the following services for the Applicant in the course of its business as a migration agent at the request if the Applicant being: (i) a protection visa Application at a fee of $1440: paragraphs 20 (d) and 22 (e) (i) above: and, (ii) an AAT Appeal at a fee of $2,200. Paragraphs 20 (d) and 22 (e) (ii).
The Tribunal applied the principles from the case of Grant v Gillham: Christopher J Grant Pty Ltd v Gillham [2018] NSWCATAP 104 as set out at [37] - [40] in determining the proper identity of contracting parties. 37. The principles applicable to determination of the identity of contracting parties arise from the objective theory of contract. The test is what a reasonable observer would conclude from the objective evidence of the communications that led to the entry into the contract, together with the background facts known to the parties: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154. 38. There is debate as to the extent to which it is permissible to have regard to subsequent communications for the purpose of deciding with whom a contract was entered. In Pethybridge at [59] Campbell JA summarised the issues: 59 There was some argument about whether it was permissible to have regard to subsequent communications for the purpose of deciding with whom the contract was entered. The present state of the law throughout Australia on whether and if so when it is possible to use post-contractual conduct as an aid to construction of the contract is not yet settled: see the authorities cited in Cheshire and Fifoot's Law of Contract, 8th Australian edition, p 392-393; Cross on Evidence, 7th Australian edition, para [39290]; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289 at 318 [109], per Kirby J. The more restrictive view, favoured in this Court, is that subsequent communications cannot be looked to as an aid to construction of a contract, but can be looked to as an aid to deciding whether a contract has been entered into at all: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 at 163-164, [2001] NSWCA 61 at [25]- [26]; Magill v National Australia Bank Ltd [2001] NSWCA 221; (2001) Aust Contract R 90-131 at 91,609-91,610, [2001] NSWCA 221 at [50]- [53] per Ipp AJA (with whom Meagher and Heydon JJA agreed); Walker v Andrew [2002] NSWCA 214; (2002) 20 ACLC 1476 at 1483-1484, 116 IR 380 at 388, [2002] NSWCA 214 at [39]; Independent Timber Importers v Mercantile Mutual Insurance [2002] NSWCA 304; (2002) 12 ANZ Ins Cas 61-543 at 76,367, [2002] NSWCA 304 at [17]; El-Mir v Risk [2005] NSWCA 215 at [66]. It was argued that, in the present case, even on that more restrictive view, it is permissible to look to the subsequent communications, because the question of whether the contract was entered into with the Appellant, or with Torpoint, is, in substance, no different to a question of whether there was a contract entered into with the Appellant at all. It is not necessary to form a view about the correctness of the argument I have just mentioned. That is because, even if one did look to the subsequent communications, they would not lead to any different conclusion. 39. In Tomko v Palasty [2007] NSWCA 258 the Court of Appeal acknowledged that the extent to which subsequent conduct of the parties is admissible to determine the existence and nature of contractual arrangements remains open. Basten JA (with whom Mason P agreed) held (at [13]-[14]) that post contractual conduct could constitute admissions by a party. Einstein J (with whom Mason P also agreed) held at [68] that evidence of subsequent communications could constitute an admission by conduct of the existence or non-existence of a subsisting contract, where an issue concerns whether a particular person was a party to that contract. 40. Subsequent decisions of the Court of Appeal have drawn a distinction between contract wholly in writing, and a contract not wholly in writing: see, for example, County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303. In Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223 the court had regard to post contract documents including records of progress payments and correspondence with the local council and various suppliers; however, Sackville AJA (with whom Campbell and Macfarlan JJA agreed) noted at [59] that documentation more or less contemporaneous with any building contract is likely to have greater probative value on the question of the identity of the contracting parties than post-contractual documentation bearing on the question of who actually carried out the work, particularly where the contemporaneous material points strongly in one direction and the later documentation is not unequivocal.
In our view the Tribunal correctly applied the principles as set out in Grant v Gillham. The evidence does not demonstrate in any significant fashion that overall the proceedings below were misconstrued. The issue of the proper parties to the proceedings were alive in both November 2017, referenced in the first internal appeal and dealt with by the Tribunal on remittal. There is nothing in the nature of the decision on this ground that the decision is so unreasonable that no reasonable decision-maker would make it, and amounting to an error of law as set out in : John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 13; Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10].
Nothing in the decision on this ground amounts to a question of fact being illogical or irrational to the extent that in accordance with the principles from the above cases it could constitute an error of law.
Nor is there anything to indicate to us that the Tribunal's findings on this ground are "against the weight of evidence". If such a position was established it would not amount to an error of law and leave to appeal would be required. In this regard, the appellant has not sought leave to leave to appeal to the extent that the second ground of appeal did not amount to an error of law.
In accordance with s.80(2)(b) of the Civil And Administrative Tribunal Act 2013 (NSW) (NCAT Act), leave to appeal is required from a decision otherwise than on a question of law. In addition, in granting leave to appeal, the Panel is required to be satisfied of the matters set out in clause 12 Schedule 4 to the Act. That clause provides: "(1) An appeal panel may grant leave under s.82B of this Act for an internal appeal against a Decision only if the appeal panel is satisfied the appellant may have suffered substantial miscarriage of justice because: (a) the Decision of the tribunal under appeal was not fair and equitable, or (b) the Decision of the tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."
The usual practice of appellant Courts is that leave to appeal is granted only in matters that involve issues of principle, questions or matters of public importance or matters of administration or policy which might have general application. Other bases concern correcting an injustice which is reasonably clear, or a factual error that was unreasonably arrived at and clearly mistaken. In addition, is the case of the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed as set out in the Appeal Panel case of : Collins v Urban [2014] NSWCATAP 17.
We reject this ground of appeal and decline to grant leave to appeal.

Terms of the contract ground

Turning to Ground 1 which we shall refer to as the terms of the contract ground, we observe that this was the main issue argued at the appeal hearing. Mr Gash argued that Mr Farag had not signed any agreement with him, but that he did perform the work and in doing so had been working under and bound by the requirements of the relevant migration regulations being the Migration Regulation 1984 (Cth) and the Migration Act 1958 (Cth).
Mr Gash submitted that he does not work for Tachnat. The money paid by clients for work performed goes to the Trust account of Request International. The appellant's main submissions on the appeal at hearing were as follows:

He does not get paid by the Government.
He does not provide a complimentary service to clients.
The Tribunal did not consider the meta data (documents sought to be introduced as fresh evidence)
The Tribunal did not accept the appellant's evidence concerning the signature block to the agreement.
The Tribunal did not have regard to a particular file note.
In respect of the invoices, the appellant says that they are issued in that manner due to the requirements prescribed under the Migration Regulation 1984.

The joined second respondent Mr Philip Bashi tendered a statement dated 21 January 2019. Without the benefit of the transcript in the proceedings below we were unsure as to what evidence Mr Bashi might have provided on the matter at hearing. The statement refers to Mr Farag becoming a client on 1 December 2014 when he signed the Agreement with the migration consultant Mr Hulio Gash.
The statement also refers to a purported conversation discussing a private arrangement / proposal of Mr Farag. The statement also asserts a request to cancel or vary the agreement due to a change in circumstances and the cancellation of some services. The statement goes on to make other comments and observations concerning Mr Farag which in our view do not require comment. The only matter in our view possibly relevant to the statement and this appeal concerns the reference to: 19. The decision of the Tribunal was against the evidence and against the IMMIGRATION LAWS REQUIREMENTS followed by Mr Gash. 20. The decision was against the Migration Act and OMARA Code of Conduct.
In our view the statement does nothing more that support aspects of the appellant's contention. It is of limited probative value if it were to be accepted and would be open to challenge. Nothing was put as to how this submission was in any way relevant to the matters in dispute. These proceedings are not a rehearing of the facts of the case but an examination as to whether the Tribunal made a legal or similar mistake with how it identified the issues before it, and how it decided those issues. That is whether the Tribunal fell into error, either on a question of law, or with leave on other grounds.
The appellant sought to introduce his own fresh evidence into the appeal, being a slightly different version / copy of the Agreement, and a further item which he referred to as the metadata extrapolating when the later or alternative version of the agreement was transmitted to the client Mr Farag.
The 23 December 2018 correspondence attached the version that the appellant sought to reply on - marked as '1' and the metadata marked as '2'. The appellant's argument is that these items need to be before the Tribunal (or the Appeal Panel) so that they may understand and accept his argument that the special condition was a valid provision of the agreement and as a result the balance should be retained by him. In addition the metadata establishes this position and also establishes that the Tribunal had the wrong material (version of the agreement) before it.
In our view there are two problems with this submission. When the matter was initially before the Tribunal in 2017 Mr Gash attended on 21 September 2017 and consented for the matter to proceed to a formal hearing. The fact that Mr Gash did not attend the 27 November 2018 hearing has been cured by the Appeal Panel decision of 6 March 2018.
When the matter was remitted to the Tribunal, the Tribunal noted that on 12 April 2018 (decision says 2017), the Principal member recorded that: (a) the parties had agreed that no further evidence was required,.
The Tribunal records in its reasons at [24] to [31] its analysis of Mr Gash's evidence on this issue of the special condition. The Tribunal finds that the version supplied by Mr Farag must have originated from Mr Bashi, Mr Gash or the appellant. The Tribunal finds that it is their document and was filed by the applicant (Mr Farag) at the outset of the matter. In respect of the version now sought to be relied upon by Mr Gash and Mr Bashi, the Tribunal found that on the balance of probabilities that the Agreement was altered after the client (Mr Farag) signed it. In our view this is the critical finding of the Tribunal at [31] and a finding that was clearly open to the Tribunal to make on the evidence before it.
Further, in Collins, the Appeal Panel at [77] stated the following: "As to the particular grounds in clause 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) the decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe the ground upon which a jury verdict can be set aside) when the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal Member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Ltd v Stein Heurte SA [2013] NSWSC 266 at [153]."
In our view, it cannot be said that the findings in question were "manifestly unreasonable" or so unreasonable that no reasonable decision-maker would make it. In making this finding we are also addressing the question as to whether or not the findings were "against the weight of evidence". There was significant evidence before the Tribunal as to the version of the Agreements in existence, and the fact that they had all originated from the appellant and/or the second respondent. At [33] the Tribunal sets out at (a) - (i) the evidence which it relied upon to reach the conclusion and the finding that it did.
In finding that the later copy of the signed agreement was altered to add the Special Condition after the initial one was signed by Mr Farag the Tribunal was exercising its role to weigh the evidence and make a finding of fact consistent with s62 (3) of the Civil and Administrative Tribunal Act 2013. There was significant evidence before the Tribunal for it to reach the conclusion that it did. We therefore conclude that the findings in question were not against the weight of evidence and also conclude that the findings were not so "manifestly unreasonable" as to constitute an error of law.
For completeness we note the earlier findings that the parties were content to proceed on the available evidence.

Fresh Evidence

In respect of the provision of the metadata (item (2) to the 23 December 2018 submission of the appellant), we decline to receive that document. There is no reason provided either in submissions or at hearing as to why that evidence (if relevant) could not have been provided at the time of the hearing with reasonable diligence. We make no findings as to its credibility but note that without establishing why there was another version of the signed agreement, we doubt that such evidence would be likely to result in a different outcome. In reaching these conclusions we note that the parties agreed for the matter to proceed before the Tribunal on the evidence filed at that time.
We therefore decline to receive the metadata as fresh evidence.
In our view, it has not been demonstrated that the Tribunal's finding in this regard was against the weight of the evidence.
We are not satisfied that this conclusion of the Tribunal was wrong or not open to it on the available evidence.

Orders 1. Appeal AP18/4775 is dismissed and leave to appeal is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 May 2019

Migration Regulation 1984(Cth)

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