Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Akter as the Executor of the Estate of the late AKM Shamsuzzaman v Keane [2019] NSWCATAP 15 Hearing dates: 21 November 2018 Date of orders: 09 January 2019 Decision date: 09 January 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member A Boxall, Senior Member Decision: (1) The name of the applicant in proceedings GEN 18/13954 is amended to Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman. (2) The name of the respondent in proceedings GEN 18/13954 is amended to Patrick Keane. (3) The orders made on 29 August 2018 in application GEN 18/13954 set aside and in lieu thereof the following order is made: "1. The respondent, Patrick Keane is to pay Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman the sum of $16,652.11, immediately." Catchwords: APPEAL – Leave to appeal – Reconciliation of contract payments – Evaluation of evidence Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman (Appellant) Patrick Keane t/as Enter Projects Pty Ltd (Respondent) Representation: A Zaman (With Leave) (Appellant) P Keane (Self Represented) (Respondent) File Number(s): AP 18/39514 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 29 August 2008 Before: G Meadows, Senior Member File Number(s): GEN 18/13954 reasons for decision Summary 1. For the reasons that follow, we have determined that leave to appeal should be granted and the appeal allowed. This is because we are satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or was against the weight of evidence. 2. The order made by the Tribunal to dismiss the application should be set aside. In lieu thereof an order should be made that the respondent pays to the appellant the sum of $16,652.11. Introduction 1. This appeal relates to a building claim in which the appellant sought a refund of monies paid to the respondent. 2. The appellant is the Executor of the Estate of the late AKM Shamsuzzaman (Estate). Mr Shamsuzzaman had engaged the respondent, an architect, to carry out various work on his behalf in relation to the construction of a new residential split dwelling located at Mascot. The agreement between the parties was in a document entitled "Offer to Perform Scope of Works" dated 15 January 2016 (agreement). 3. Following the death of Mr Shamsuzzaman (the deceased) in February 2017, the appellant, as executor of the Estate, had requested a reconciliation of the work performed under the agreement and the amounts which had been paid. 4. By March 2018, this matter had not been resolved. The appellant was dissatisfied with the reconciliation information which had been provided and claimed that the respondent had been overpaid. On the other hand, the respondent asserted that he was owed an amount of $4585.01. 5. On 22 March 2018, the daughter of the appellant, Anika Zaman filed application GEN 18/13954 in which she sought an order that she be paid an amount of $37,389.00, representing her calculation of the amounts which had been overpaid, and an order that she was not required to pay the sum of $4585.01. 6. It would appear that Ms Zaman was assisting her mother in the administration of her late father's estate and had commenced proceedings in her own name. However, prior to the hearing of the proceedings the name of the applicant was amended to Rabeya Akter. 7. The proceedings were heard by the Tribunal on 9 July 2018. On 29 August 2018, the Tribunal made an order dismissing the application (decision) and provided written reasons for decision (Reasons). 8. The appellant appeals the decision and, to the extent necessary, seeks leave to do so. Preliminary issue – name of parties in proceedings at first instance 1. As the decision and Reasons reflect, at the time the decision was made the applicant in the proceedings was still Ms Akter. The respondent was Patrick Keane t/as Enter Projects Pty Ltd. 2. When the proceedings came before the Appeal Panel, it was noted that the rights being exercised were those of the Estate and that the proceedings should be amended to reflect this fact. Accordingly, orders were made in the appeal proceedings to amend the name of the appellant to Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman. 3. Also at the hearing of the appeal, it was noted that the name of the respondent was Patrick Keane t/as Enter Projects Pty Ltd. It was agreed that at the time the agreement was entered into that Mr Keane was a sole trader, his business not then being incorporated. Consequently, the name of the respondent to the appeal was amended to Patrick Keane. 4. Aside from properly identifying the parties, nothing otherwise turns on these matters. However, having regard to the decision which we have reached, formal orders should also be made amending the parties to the proceedings at first instance in accordance with the above facts. Accordingly, we will make the following orders: 1. The name of the applicant in proceedings GEN 18/13954 is amended to Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman. 2. The name of the respondent in proceedings GEN 18/13954 is amended to Patrick Keane. Notice of Appeal and history of appeal proceedings 1. The appellant filed a Notice of Appeal on 6 September 2018. The appeal was filed in time. 2. The grounds of appeal stated: 1. The judgement agrees that the respondent has failed to provide what has been requested of them (see point 20 and 21) and that the respondent's financial reconciliations are likely inaccurate. 2. Despite this, the case was still dismissed on the grounds that insufficient evidence was provided regarding the amount initially paid to the respondent for services. 3. There has been a misunderstanding on the part of the applicant in regards to the requirement of provision of evidence supporting initial payments made, as this proof was considered implicit. As a result, these itemised payment receipts were not included in the initial evidence. 4. In addition, the applicant's summary of payments made to the applicant (sic) was verbally agreed upon by the respondent on the day of the hearing, nor was this amount ever queried in the proceedings. 5. The payments were also made from accounts of now deceased and closed banking accounts, which compound the reason to omit these documents from the original evidence submission. 6. These payment receipts have now been attached with this appeal. 1. The appellant sought leave to appeal. 2. First, the appellant said the decision was not fair and equitable having regard to the finding that the respondent had failed to provide financial reconciliations she repeatedly requested and that the respondent had "put forth inaccurate claims with a lack of supporting evidence". In this regard the appellant says the claim should not have been dismissed. Rather, the Tribunal should have simply requested additional "information from the applicant's side, when there is adequate evidence of the respondent's malpractice". 3. Secondly, the appellant said the decision was against the weight of evidence. Again, the appellant pointed to the "errors in financial reconciliations and overall lack of regard towards the applicant's instructions". 4. Thirdly, the appellant sought to rely on new evidence. This was said to be "itemised payment receipts of each of the payments made to the respondent [that] have been attached to this appeal". These documents were said to be "receipts … from 3 separate banking accounts – all of these accounts were closed and deceased at the time of evidence submissions". 5. The respondent filed a Reply to Appeal. In that document he supported the original order made and said he had "spent a considerable level of time and input to make sure [his] responses were accurate and clear". The respondent said the deceased had "receive good service … and they are not entitled to a refund of fees. In fact our costs were higher than we have included (we excluded directors fees)". In relation to these fees, they were said to be for "additional works … within market rates … [which] are fair and reasonable". 6. The parties filed written submissions and made oral submissions at the hearing on 21 November 2018. 7. The parties also provided documentary evidence from the proceedings at first instance. The bundle of documents filed by the appellant became Exhibit A in the appeal. This included documents from the original hearing in section 4 of Exhibit A (Original evidence) and other documents (new evidence) relied upon for the appeal. In addition, the respondent filed a bundle of documents, some copies of which were also found in Exhibit A. 8. At this point it is convenient to note we do not propose to allow the new evidence except where concessions have been made by the respondent or a document has otherwise been admitted by consent. The reason for this is that a party may only seek leave to appeal on the basis of new evidence where the evidence to be relied upon is "evidence that was not reasonably available at the time the proceedings under appeal were being dealt with": see Sch 4 cl 12(1)(c) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). The evidence in question is, having regard to its content, evidence that could reasonably have been obtained prior to the original hearing. The fact that various bank accounts of the deceased were closed does not affect this position. It was incumbent on the appellant to provide whatever evidence she wished in support of her claim and to take such steps as were necessary to secure the production of that evidence at the original hearing. Consequently, unless admitted by consent, it may not be relied upon for the purpose of the appeal: see Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [19] and following. 9. Finally, we note a copy of the sound recording of the hearing at first instance and a typed copy of parts of that recording became MFI 1 in the appeal. 10. The appellant's position can be summarised shortly. 11. The appellant refers to the Reasons at [20]-[21] and says that the Tribunal made the following findings: 1. The respondent failed to provide an accurate financial reconciliation and that the applicant has "demonstrated that the purported reconciliation is inaccurate". 2. The respondent claimed $35,500 as extra works, having initially claimed an amount of $22,000 for that work, which initial claim had been "calculated without consulting the original timesheets". Because the timesheets were not in evidence, the Tribunal said it would not allow this claim by the respondent due to the lack of supporting evidence. 1. Consequently, the appellant says that there was no basis for the Tribunal to dismiss her claim on the grounds of insufficient evidence and that the findings at [19] and [22] of the Reasons were wrong. 2. In reply, the respondent said in written submissions "substantiation of cost took place during a course of events that occurred over late January 2018 to June 2018". The work required to be undertaken was completed. The respondent maintained its position that he was entitled to a further amount of $4585.01 for work performed after 9 February 2017. Consequently, the respondent says that the Tribunal was correct to dismiss the application as the respondent had not been overpaid. Consideration 1. The appellant challenges the findings of fact made by the Tribunal, including the ultimate finding that the appellant had not proved her claim that the respondent had been overpaid. Consequently, leave to appeal is required: see s 80(2)(b) of the NCAT Act. 2. Leave may only be granted if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because the decision was against the weight of evidence, not fair and equitable or there was significant new evidence which was not reasonably available at the time the proceedings were originally heard: see Sch 4 cl 12 of the NCAT Act. The principles in Collins v Urban [2014] NSWCATAP 17 are relevant in determining whether leave should be granted. 3. In part, the grant of leave will depend on whether the Tribunal was correct in its ultimate conclusion that the appellant had failed to prove her claim. 4. Each of the parties provided evidence concerning the amounts to which the respondent was entitled for services performed under the agreement and in respect of amounts which the respondent had paid to third parties and/or was entitled to recover by way of disbursements. It is necessary to reconcile this evidence in order to determine whether the Tribunal was correct in dismissing the application. 5. As indicated above, there was a written agreement in respect of the services provided by the respondent. There was no dispute that the respondent was entitled to be paid for the services performed. There was also no dispute that the agreement provided for the respondent to be reimbursed for payments made on behalf of the deceased to third party suppliers and for disbursements. 6. This agreement had a fee estimate for the work: Exhibit A, Original evidence page 13. The fee estimate showed a total of $89,000 and, underneath that sum, an entry "Discounted Total $83,250". The fee estimate was provided under four headings. These were: 1. Sketch Design & Concept Development- $15,250; 2. Development Application-$18,500; 3. Contract Administration-$34,000; and 4. Construction Certification $21,250. 1. At the bottom of the fee estimate was recorded the following: NB. The hourly rates and totals above do not include GST. This is an estimation and based on our experience, should be close to the estimate of each stage. Any modifications to the Scope of Work and Provision of Services are to be recorded and may affect the Structure of Fees. 1. Relevant clauses of the contract included the following: Fees for Performance of the Services 1.1 The fees for performance of the Services, including any additional or other services, shall be calculated and charged as set out in the Agreement. The Basic Fee, including any anticipated visits to construction works, shall be lump sums and/or time charges. Lump Sums 1.2 The fee or fees shall be the fixed lump sum or sums stated in the Agreement, which shall be adjusted if changes are made to the Brief and/or the Construction cost and/or the timetable. Time Charges 1.3 A time-based fee shall be ascertained by multiplying the time reasonably spent in the performance of the Services by the relevant hourly rate set out in the Agreement. Time 'reasonably spent' shall include the time spent in connection with Performance of the Services in travelling from and returning to the office. Extra Fees 1.4 Extra Fees calculated on a time basis, unless otherwise agreed, it shall be payable if: - The Architect/Designer is involved in extra work or incurs extra expense for reasons beyond our control. Reasons for such entitlement include, but shall not be limited to; Being required to vary any item of work commenced or completed pursuant to the Agreement and/or performance of the Services being delayed, disrupted or prolonged; Work in connection with redesign of a scheme or part of a scheme, previously agreed with the Client, following requests from the planning and/or other statutory authorities; The examination or negotiation of notices; Applications or claims under a building contract; Delay or any other reason beyond our control; … Maintain Records 2.2 The Architect/Designer shall maintain basic records of time spent on Services performed on a time basis and of any Expenses and Disbursements to be reimbursed at net cost and shall make these available to the Client on reasonable request. Payment 2.3 Payments under the Agreement shall become due to the Architect/Designer on issue of the Architect/Designer's accounts. The final date for such payments to the Client shall be 7 days from the date of issue of the an account. The Architect/Designer's accounts shall be issued at intervals of not less than 1 month and shall include any additional fees, expenses or disbursements and state the basis of calculation of the amounts due. Instalments of fees shall be calculated on the basis of the Architect/Designer's estimate of the percentage of completion of the stages or other Services or such other method as is specified in the agreement. 1. The hourly time charges were set out in the agreement found in Original evidence of Exhibit A at page 16. We note that the maximum time charge specified was $180 per hour in this part of the agreement. However, the fee estimate to which we have referred above recorded a rate for "Principal/Project Architect" of $200 per hour. 2. Clause 2.1 of the agreement also provided for the deceased to reimburse the respondent for expenses and disbursements. Payments made to the respondent 1. At [10] of the Reasons, the Tribunal provided a table setting out all the payments which the appellant contended had been made to the respondent in respect of the respondents fees and disbursements. These payments totalled $217,888.01. 2. At [23], the Tribunal said that "there is no supporting evidence of those payments or at least what supporting evidence there is, is remarkably incomplete". The Tribunal then commented at [24] of the Reasons that "this is a claim which should have been supported by independent expert accounting evidence". Having expressed sympathy for the appellant, the Tribunal concluded at [25] of the Reasons that it was not persuaded the appellant's evidence demonstrated, on the balance of probabilities, that the appellant/Estate had overpaid the respondent. 3. While the Tribunal reached this conclusion for the reasons stated above, it is not apparent to us how the Tribunal analysed the evidence of the appellant and the respondent and why it was not possible to determine a proper reconciliation of the contract. 4. For example, there is a list of payments which the respondent said it had received found at Exhibit A Original evidence p133. These payments totalled $142,091.00. This table, being evidence from the respondent, in part corroborates the evidence of the appellant. However, it was clearly incomplete. For example it did not record the payments of $8000 and $10,000 in about February 2016 as recorded in invoice 3 (Exhibit A Original evidence p 24). On the other hand, invoice 3 itself constitutes some evidence of payments made. 5. Another example of evidence of the payments made is the credit card payment of $14,185.00 evidence by the email dated 19 April 2016 (Exhibit A Original evidence p34). As the email records, this related to a payment claim of the respondent of $2800 and various disbursement amounts reimbursed to the respondent using the deceased's credit card, a fact corroborated by the new evidence provided by the appellant in the appeal (see Exhibit A Section 2.1 p 22) and accepted by the respondent at the hearing of the appeal. 6. In making these comments, we do not wish to be overly critical of the Tribunal Member who heard this application. This case is an example of the need for effective directions in order to ensure evidence is prepared in a manner which facilitates the just, quick and cheap resolution of the real issues in dispute by the Member of the Tribunal who is assigned to conduct a final hearing. It is also a case in which the financial position needs to be ascertained by reviewing a morass of information in the absence of appropriate expert evidence or evidence from parties skilled in analysing financial data and presenting it in a clear and logical fashion. 7. Be that as it may, the parties have, effectively, been able to agree certain matters for the purpose of this appeal. 8. Those agreements include that the total amount paid by the deceased or his Estate to the respondent was $230,959.01. This amount represents the sum of all amounts received in respect of payment for services provided under the agreement and reimbursement of disbursements. 9. This agreement was reached having regard to the new evidence in the form of further bank statements, the contents of which was accepted, without objection, by the respondent during the appeal. 10. Determining the amount paid involved adjusting the sum of $217,888.01, recorded in the table in the Reasons at [10], by deleting various payment entries which the parties agree were not made and by including various amounts which bank statements and credit card records show were in fact paid. The additions and deletions are as follows: Total per Reasons at [10] $217,888.01 1. Deduct entry 4 Dec 2016 ($2800.00) 2. Add credit card payment 12 April 2016 $14,285.00 3. Deduct entry 6 June 2016 ($4004.00) 4. Add payment 6 June 2016 $5499.00 5. Deduct payment 21 Nov 2016 ($8000.00) 6. Add payment 21 Nov 2016 $8091.00 Total after adjustments $230,959.01 1. For completeness, we should note that the evidence of the payments actually made, being items (2), (4) and (6) is found at Exhibit A Section 2.1 pp 22, 23 and 28. We propose to allow this new evidence having regard to the agreement reached. 2. Accordingly, we will proceed to resolve this appeal of the basis that the total payments received by the respondent were $230,959.01. Payments due to the respondent 1. It remains necessary to determine what amounts were due to the respondent for services rendered or for reimbursement of disbursements. 2. It is common ground in this appeal that the respondent provided nine invoices in respect of the work performed by him and his employees under this agreement from its commencement until 9 February 2017. The invoices, which form part of Exhibit A, were for the following amounts (including GST): Invoice 1 18 February 2016 (Included in Inv 3) Invoice 2 18 February 2016 (Included in Inv 3) Invoice 3 8 March 2016 $30,800.00 Invoice 3* 25 May 2016 $4004.00 Invoice 4 29 June 2016 $9680.00 Invoice 5 29 July 2016 $11,800.00 Invoice 6 26 October 2016 $11,604.01 Invoice 7 15 November 2016 $8891.00 ** Invoice 8 9 December 2016 $6600.00 Invoice 9 9 February 2017 $9900.00 Total $93,279.01 *(duplicate invoice number- cf Exhibit A Original evidence pp 24 and 35 ** Invoice erroneously shows total of $8091.00- see Exhibit A Original evidence p 55 1. It is also common ground in this appeal, following acceptance of the fact by the appellant at the hearing of the appeal, that the respondent continued to perform work after 9 February 2017. In this regard, it does not appear any invoices were issued for work done after 9 February 2017. We will return to this matter below. 2. In relation to disbursements paid by the respondent on behalf of the appellant, for which the respondent is entitled to reimbursement, the appellant identified the following payments to which the respondent was entitled to reimbursement (see Exhibit A Original evidence p 8): 1. Eric Scerri $440.00 2. Eric Scerri $1595.00 3. Michael Sui $385.00 4. United Consulting Eng. $660.00 5. Amitran $27,391.63 6. Acoustics Logic $1045.00 7. Council- 20 February 2017 $1185.00 8. Counsel-3 April 2017 $32,915.00 9. DOT Planning $330.00 10. S 94 $16,810.28 Total $85,181.91 1. However, these payments did not include the following additional payments (paid by credit card) recorded in an email from the respondent to the deceased dated 9 April 2016 (see Exhibit A Original evidence p 34) and shown in the respondent's spreadsheet attached to his letter dated 25 September 2017 (Exhibit A Original evidence p 131): 1. Uniting Consulting Eng (4 Apr 2016) $2750.00 2. Quantity surveyor (31 March 2016) $880.00 3. Acoustics report (29 March 2016) $2255.00 4. DOT Planning-SEE & BASIX (15 March 2016) $4400.00 5. MSLA Landscape Design(6 April 2016) $1100.00 Total $11,385.00 1. As noted in the evidence above concerning payments made to the respondent, these amounts were reimbursed by the credit card payment made on 12 April 2016. 2. Lastly, the appellant's summary of disbursements paid by the respondent does not include some other amounts found in the spreadsheet attached to the respondent's letter dated 25 September 2017 (Exhibit A Original evidence p 131). They are: 1. Alliance Geotechnical (23 May 2016) $2750.00 2. McArdle Arboriculture (10 June 2016) $1100.00 3. McArdle Arboriculture (4 Nov 2016) $2760.00 4. Professor Max Irvine Pty Ltd (6 Nov 2016) $5808.00 5. Council Subdivision Certificate (11 Oct 2016) $1370.00 6. Council Payments CC: (15 April 2017) $2690.00 7. Council Payments CC: (3 April 2017) $36.00 8. Council Stationary (9 June 2017) $20.00 9. Printing Fees & Charges (30 June 2017) $2405.00 1. There is no challenge by either party to the fact that these expenses were incurred for the project. However, there was some evidence (not challenged by the respondent) that the following amounts were paid directly by the deceased or the appellant (see Exhibit A Original evidence p 134): 1. Alliance Geotechnical (23 May 2016) $2750.00 2. McArdle Arboriculture (10 June 2016) $1100.00 3. McArdle Arboriculture (4 Nov 2016) $2760.00 4. Professor Max Irvine Pty Ltd (6 Nov 2016) $5808.00 5. Council Subdivision Certificate (11 Oct 2016) $1370.00 6. Council Payments CC: (15 April 2017) $2690.00 1. As these amounts were paid directly by the deceased, they should not be included in calculating the disbursements to which the respondent was entitled to reimbursement. 2. Otherwise, it would appear the following further amounts recorded in the respondent's spreadsheet of disbursements were paid by the respondent and the respondent is entitled to reimbursement of these sums: 1. Council Payments CC: (3 April 2017) $36.00 2. Council Stationary (9 June 2017) $20.00 3. Printing Fees & Charges (30 June 2017) $2405.00 Total $2461.00 1. In light of our reasons above, we are satisfied that the respondent was entitled to reimbursement of the following amounts: 1. Fees for service- progress claims 1-9 $93,279.01 2. Disbursements recorded in Reasons at [9] $85,181.91 3. Disbursements per email dated 9 April 2016 $11,385.00 4. Other disbursements (not in (1)-(3) above) $2461.00 Total $192,306.90 1. The final issue to consider is what amount, if any, should also be allowed in respect of work performed after 9 February 2017 2. In its reasons, the Tribunal noted the appellant claimed he was entitled to $35,500 and that there had been a shortfall of $4585.01: see for example Reasons at [12(18)] and [13(1)]. The Tribunal also noted the appellant had originally claimed $22,000 which "was calculated without consulting original timesheets" and that "[t]hose timesheets were not in evidence: Reasons at [21]. Consequently, the Tribunal was not satisfied that it should allow any further claim "on the basis of the lack of supporting evidence": Reasons at [21] 3. In relation to the claim of a "shortfall" of $4585.01, we do not accept this claim. It is premised on a spreadsheet found at Exhibit A Original evidence p 140 which, for the reasons set out above, is demonstrably inaccurate. For example, it does not include all of the payment claims made by the respondent nor does it include all of the payments made by the deceased and or the appellant. 4. In relation to the claim for services provided after 9 February 2017, being the date of the last progress payment, it seems to us that some allowance should be made to the respondent. As we stated above, the appellant accepted at the hearing of the appeal that work had been done after this date. While an invoice has not been raised having regard to the terms of the agreement, we should proceed to determine the amount of the entitlement and thereby avoid any further litigation between the parties. 5. In this regard, each of the parties has had an opportunity to provide evidence concerning this claim in the proceedings at first instance and have been afforded an opportunity to provide submissions in the appeal. 6. The evidence said to substantiate the claim of $35,500 is a spreadsheet found at Exhibit A Original evidence p 139. This spreadsheet records a total of 221 hours, split between architects of differing rates ranging from $100 per hour to $180 per hour. The dates, hours worked and nature of the work undertaken are recorded in that spreadsheet. It has been prepared consistently with the agreement, parts of which we have set out above. 7. On the other hand, the evidence of the claim for $22,100 is recorded at Exhibit A Original evidence p 132. There, in a spreadsheet entitled as "Payments to third Party by Entry Projects" which commences on p 131. The entry on p 132 states: Enter Projects (221 Hours) 30-06-17 $22,100.00 … Paid by EP 1. No details are provided as to how this amount has been calculated, save that the covering letter by which this spreadsheet was forwarded includes a schedule of hourly time charge rates consistent with the agreement. 2. On one view, this claim appears to have been an estimate of the costs of the services provided. Another view is that, following a request for relevant information as part of the reconciliation process and consistent with earlier fee arrangements, the respondent assessed his claim and/or applied a discount and made a claim for $22,100 only. 3. As to the contention the sum of $22,100 was only an estimate, we have some concern arising from the evidence the respondent explaining why the claim was increased from $22,100 to $35,500. In the transcript provided by the appellant, which forms part of MFI 1, the respondent said at the top of page 19: Keane: Now that was a different number to the previous number of 22 [thousand]; you can see that it is higher. Because to generate this document we went back and actually looked at the timesheets and the hours spent whereas previously we did not. So, a lot more hours and a lot more input was put into this project then we had originally disclosed. Tribunal: So does that mean the 22 was an estimate? Keane: The 22 was up to a certain point payment, but when we were asked to really go through our timesheets to legal satisfaction, this is what was generated. Tribunal: Up to the same point? Keane: Up to the same point. Tribunal: So the first one was an estimate. Keane: The first one was a payment from then up to a certain point, and then we realised we had actually spent a lot more time on it. 1. This evidence suggests that, upon review of an estimate, the respondent ascertained that significantly more hours had been worked than those upon which the estimate was based. Having regard to the fact that both the estimate of $22,100 and the final assessment of $35,500 was based on 221 hours (see evidence referenced above) this statement seems unlikely to be correct. Rather, the answer given appears designed to justify the fee increase without any real understanding of how the original estimate had been calculated. 2. Also supporting the respondent's claim that $35,500 was the proper amount when calculated in accordance with the agreement is the oral evidence of the respondent and the spreadsheet setting out how the amount claimed is calculated. The spreadsheet breaks down between categories of employees the hours worked, the rates applicable and the nature of the work undertaken. The rates set out in the spreadsheet are consistent with the agreement and there was oral evidence concerning the source of the documents used to compile the spreadsheet. In this regard, in addition to the evidence we have set out above, Mr Keane said at page 19: We went through the timesheets - so our previous administration filed the timesheets in a different folder so we for this timesheet we picked every single time sheet we attached it to the lawyer say that they can go through every hour, make sure that hours are correct with what we have in the administration. That is the miscommunication. 1. While the appellant, in her submissions, complained of the failure by the respondent to provide a proper reconciliation, we are unaware of any challenge to the fact the respondent or his employees worked on the days specified in the spreadsheet supporting the claim for $35,500. We were not referred to any cross-examination by which the appellant challenged these records or the oral evidence which the respondent provided to the Tribunal. More significantly, we were not referred to any evidence that would contradict the oral evidence of the respondent that hours were worked in respect of the particular items for which claims were made. 2. Rather, the appellant suggested she was unaware of the work actually performed, having left to the respondent the task of continuing with the project following the death of Mr Shamsuzzaman. In this regard, in her submissions in reply in the appeal (part of MFI 1), the appellant said at para 34: Following the death of the late AKM Shamsuzzaman on 2 February 2017, the family's input on Mr Keane's operations were (naturally) minimal. No attempts were made by Mr Keane to pause or even confirm the continuation of the project following AKM Shamsuzzaman's death, and we (the applicant/appellant) relied upon and trusted Mr Keane's discretion, advice, and request for payment, believing him to be a professional operating with due care, skill and regulatory compliance. 1. Otherwise, while the summary of Key Events found in the appellant's submissions at first instance (see Exhibit A Original documents p 4 and following) suggests some dissatisfaction with the work performed (a matter not presently relevant to this dispute), this document corroborates that work was being performed by the respondent after 9 February 2007, as do the other documents recording work done on the project after this date. 2. Lastly, the amount of $22,100 appears to be equivalent to 221 hours times $100 per hour. This would tend to suggest that, whoever prepared this claim used the actual hours worked of 221 and multiplied those hours by a flat rate, although no GST was added to the calculation. 3. On the other hand, as the fee breakdown in the agreement reveals, is apparent that the respondent was prepared to discount his fees for this project. Consequently, in circumstances where the account of $22,100 was provided as part of a process of finally reconciling the amounts paid by the deceased and the appellant with the amounts properly due to the respondent, there is support for the view that the respondent properly turned his mind to the amount which he could claim in respect of the work done after 9 February 2017 and assessed the value of this work at $22,100. 4. In this regard, the explanation provided by the respondent concerning the hours worked and why the account was increased from $22,100 to $35,500 appears unsatisfactory. 5. This concern is heightened by the fact the respondent failed to provide documents in the form of timesheets, work product, corroborative witness statements or other documents that would support the higher claim. The failure to provide records is contrary to cl 2.2 of the agreement set out above 6. This is a case where, on both sides of the dispute, there is a significant lack of detail in the evidence which has been provided. However, it is not a case in which it could be said there is no evidence of the matters about which complaint is made. Nor could it be said that there is no evidence to support the conclusion that the respondent carried out additional work under the agreement after 9 February 2017. 7. Consequently, it is the task of the Tribunal to assess the evidence, evaluate its reliability and, if appropriately satisfied, to determine the issues between the parties. 8. Having regard to the matters to which we have referred, we think there was evidence sufficient for the Tribunal to conclude that an amount of $22,100 only was payable in respect of services provided by the respondent to the appellant after 9 February 2017. This is because the explanation provided by the respondent concerning the circumstances in which a claim for $22,100 was made and his assertion that this claim was an estimate only is unconvincing. Rather, the claim of $22,100 was made in circumstances where a reconciliation had been sought, where the respondent must have turned his mind to what were his proper entitlements in respect of the project and where, presumably, he truthfully provided information concerning the amounts to which he was properly entitled under cover of his letter dated 25 September 2017. 9. Further, the claim for $35,500 was not made until after the respondent had provided the requested reconciliation information in circumstances, apparently, where lawyers were involved and proceedings had been commenced or were proposed. It was made in circumstances where the work to which this claim related had been completed by 26 May 2017, well before the initial claim of $22,100 was made and at a time when the evidence then available suggested the respondent was otherwise overpaid. 10. In these circumstances, we are satisfied that the respondent assessed and provided a final account for $22,100 only and this is the amount to which he is entitled. 11. It is clear from the spreadsheet attached to the letter dated 25 September 2017 the amount of $22,100 includes GST. Accordingly, it is this amount which should also be taken into account in determining the appellant's claim for a refund of overpayments. 12. It follows the appellant is entitled to a refund calculated as follows: Total payments received by respondent $230,959.01 Less: Reimbursement for amounts billed and disbursements ($192,206.90) Payment for work after 9 February 2017 ($22,100.00) Amount repayable by respondent $16,652.11 1. It is self-evident from our analysis that we have reached the conclusion that the evidence "in its totality preponderates … strongly against the conclusion found by the tribunal at first instance" whereby the appellant has been deprived of a chance that was fairly open of achieving a better outcome than occurred: Collins at [70]-[71]. Consequently, leave to appeal should be granted, the order dismissing the application should be set aside and in lieu thereof the respondent should be ordered to pay the appellant the sum of $16,652.11. Orders 1. The Appeal Panel makes the following orders: 1. The name of the applicant in proceedings GEN 18/13954 is amended to Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman. 2. The name of the respondent in proceedings GEN 18/13954 is amended to Patrick Keane. 3. The orders made on 29 August 2018 in application GEN 18/13954 set aside and in lieu thereof the following order is made: "1. The respondent, Patrick Keane is to pay Rabeya Akter as the Executor of the Estate of the late AKM Shamsuzzaman the sum of $16,652.11, immediately." ********** 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 January 2019