VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP2063/2019	
CATCHWORDS	
Late submission from respondent sent after conclusion of hearing: Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 adopted; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 considered – claim for unpaid invoices sent 3 years after work done and materials supplied – whether work done and materials supplied – burden of proof - insufficiency of evidence to discharge burden – rule in Jones v Dunkel applied.	

APPLICANT	J Monasso Nominees Pty Ltd (ACN 614 804 901) t/as Icon Plumbing & Gasfitting	
RESPONDENT	ADZ Construction Pty Ltd (ACN 104 607 294)	
WHERE HELD	By Videoconference – Remote 	
BEFORE	Member N Feeney	
HEARING TYPE	Small Claim Hearing	
DATE OF HEARING	24 June 2020 and 17 September 2020	
DATE OF ORDER	26 March 2021	
CITATION	J Monasso Nominees Pty Ltd v ADZ Construction Pty Ltd (Building and Property) [2021] VCAT 264	

Order
1.	The proceeding is dismissed.

N Feeney
Member			

APPEARANCES:		
For Applicant	Mr J Monasso, director	
For Respondent	Mr P Ferla, director	

Reasons
Background
1.	The applicant company runs a plumbing business and the director of the applicant, Mr John Monasso, is a plumber.
2.	The applicant claims to have undertaken work and supplied materials at the request of the respondent company. Mr Paul Ferla is the director of the respondent company. He is an accountant and he also has an accountancy business.
3.	Mr Monasso and Mr Ferla and their families have known each other for a very long time, about 50 years, and their fathers once worked at the same place.
4.	Over many years the applicant undertook plumbing works for the respondent at the request of Mr Ferla and also over many years Mr Ferla provided accounting services to Mr Monasso.
5.	Mr Monasso and Mr Ferla had a falling out in 2016 or 2017 and since then Mr Monasso has no longer obtained accounting services from Mr Ferla and Mr Ferla no longer requested any plumbing services.
6.	In 2018 Mr Ferla brought a proceeding in the Tribunal against Mr Monasso claiming the balance of an unpaid invoice for accounting services provided to Mr Monasso in the amount of $13,716.68 (disputed accountancy invoice). That matter was resolved. 
7.	In 2019 the applicant brought this proceeding against the respondent for six unpaid invoices totalling $12,909.28, all dated January 2018, for plumbing works claimed to have been provided in about 2015.
8.	The applicant now only seeks payment of five of the unpaid invoices totalling $7,605.12 and is no longer seeking payment of the other invoice of $5,304.16. The respondent denies it is liable for any amount in relation to the invoices being claimed.
9.	The proceeding was listed for hearing on 24 June 2020. However, after only 1 hour of hearing time the matter was adjourned at the request of the respondent, due to Mr Ferla having a family emergency. The hearing resumed and was completed on 17 September 2020, when I reserved my decision. 
Late Submission to reopen the matter
10.	On 8 October 2020, an email of the same date from Mr Ferla was sent to me for my attention by the Tribunal Registry. The email attaches a number of photographs which are stated to be of the bungalow roof at one of the properties where the applicant claims it has done work at the request of the respondent. The email requested that the Tribunal reopen this matter to consider this evidence. 
11.	The Tribunal then received an email dated 12 October 2020 from Mr Monasso. The email opposed a reopening of the matter on the basis that assertions made by Mr Ferla in his email are inaccurate and to reopen the matter would be a waste of the Tribunal’s time.
12.	The Tribunal has recently considered the principle and authorities applicable when a party sends additional material to the Tribunal after the hearing has been concluded in Hristovski v Chan. This decision considers a High Court decision in which it was said that “Efficiency requires that the despatch of the court’s business not be delayed by further submissions reflecting the afterthoughts of a party …” and adopts the reasoning of a decision of the Court of Appeal for refusing to have regard to further submissions sent to the registry a week after the hearing of an appeal:
… they should not have been forwarded to the Registry. Neither the Rules of Court nor the applicable Practice Statements gave any authority for them to be forwarded without leave, and the court has not been asked to give or given leave for them to be filed.  Moreover, if leave had been sought, we would have refused it, because, if we were to give leave, we would then have to give leave to the respondents to file replies, with consequent delay in the business of the court.
As has been said repeatedly in the High Court and in this court, the idea that parties may, without leave, file supplementary written submissions after the conclusion of oral argument is misconceived.  The time and place to present argument, whether wholly oral or as supplemented by written submissions, is the hearing of the appeal.  Once the hearing of an appeal has concluded it is only in very exceptional circumstances, if at all, that the court will later give leave to a party to supplement submissions.
13.	I agree with the decision in Hristovski v Chan that these principles are also applicable to a first instance hearing, such as the present proceeding before the Tribunal.
14.	There are no exceptional circumstances in this proceeding that would warrant leave to be given to make supplementary submissions. Whilst the reasons for decision in this matter had not been completed at the time the email was received, the hearing of this matter took place over two days, almost three months apart and the respondent had ample time to prepare for and present its case during the hearing. This included allowing the respondent to refer to submissions and a photograph which were sent to the Tribunal on the afternoon before the second day of the hearing, and which have been considered.
15.	For these reasons and the reasons expressed in the above authorities, I have not had regard to the contents of the email of 8 October 2020 from Mr Ferla or any material or submission in or attached to the email. 
The hearing
16.	At the hearing Mr Monasso gave evidence for the applicant and Mr Ferla gave evidence for the respondent.  
17.	They both referred to a number of documents in support of their claims and defences.
Assessment of evidence
18.	The applicant has the burden of proof to satisfy the Tribunal on the balance of probabilities of the facts necessary to establish its claim.
19.	To establish the claims made in the proceeding, the applicant must prove on the balance of probabilities:
a.	It supplied the materials and undertook the work referred to in the invoices.
b.	That it did so at the request of the respondent.
c.	That the amounts claimed were as agreed with the respondent or, if not agreed, the amounts claimed are the reasonable price for the materials and works.
20.	If the applicant does not satisfy its evidentiary onus on the balance of probabilities, I must dismiss its claims. If I am not satisfied that the applicant supplied the materials and undertook the work referred to in the invoices, I do not need to consider whether it did so at the request of the respondent, or what amount the respondent should pay for the works.
The applicant’s claims
21.	The invoices, all dated January 2018, are for materials claimed to have been supplied and for works claimed to have been undertaken in about 2015 and 2016 at a property in North Terrace, Clifton Hill (North Terrace property), on a yacht at Docklands and at a property in Amess Street, Carlton (Amess Street property).
22.	The applicant in this proceeding has the difficulty of providing evidence for materials supplied and work done about 3 years before it invoiced the respondent and 5 years before the hearing was held.
The respondent’s defence
23.	The respondent denies the work referred to in the invoices was undertaken by the respondent.
24.	Mr Ferla submitted that the applicant had failed to provide sufficient evidence that the materials in the invoices were supplied and the works in the invoices were undertaken as claimed. He claimed the calendars, and invoices from the workers for their labour were made up. He disputed that the invoices for the materials related to the works undertaken.
25.	The respondent spent a considerable amount of time cross examining Mr Monasso about a number of other matters which are only relevant as to Mr Monasso’s credibility rather than proving or disproving whether the works had been undertaken. Those matters were focused on the invoices that were sent by the applicant to the respondent. Mr Ferla gave evidence that there was ill will between the parties due to the disputed accountancy invoice, that the applicant had withdrawn the claim for one invoice that it had sent because it could not claim that amount, that the applicant had previously sent a batch of invoices in 2017 that were for works many years ago and at that time it did not say there were further invoices that would be sent, that there was a delay in sending the invoices and the difficulties Mr Monasso had in explaining how the amounts in the invoices had been calculated.
Supply of covers to THE North Terrace property
26.	The applicant makes a claim for payment from the respondent of invoice number 2414 dated 22 January 2018 in the amount of $1,476.86.
27.	The applicant claims to have supplied the materials described in the invoice being seven cast iron 200 heavy covers at the North Terrace property. The invoice does not say when the covers were supplied.
28.	Mr Monasso gave evidence that the applicant supplied the covers which allow for access to plumbing fittings, near the end of plumbing works that the applicant undertook as part of renovation works at the North Terrace property in about 2015 or 2016 but he was unable to remember any more precisely when the covers were supplied or when the renovation works were done.
29.	Mr Ferla gave evidence that the applicant and respondent agreed that for the plumbing works undertaken during the renovation the respondent would pay the applicant for labour, at the rate of $65 per hour for a director or plumber and $15 per hour for an apprentice subject to time sheets being provided, and for materials used at the purchase price, subject to the applicant providing detailed costings and evidence of the cost of the materials (North Terrace plumbing agreement).
30.	Mr Monasso did not dispute what Mr Ferla said about the terms of the North Terrace plumbing agreement and I therefore accept the North Terrace plumbing agreement contained the terms stated by Mr Ferla.
31.	Mr Monasso gave evidence that all the other plumbing work done by the applicant during the renovation was paid by the respondent, but when he sent to the respondent the other invoices being claimed in this proceeding, he realised that the covers were not on the materials lists he sent to Mr Ferla for the plumbing works the applicant had done during the renovations and that is when he remembered that he had not invoiced the respondent for the covers.  Mr Monasso surmised that he might have supplied them after the date of the last materials list provided to the respondent to explain why he had not invoiced for them, but he did not say when the last materials list was provided.
32.	Mr Monasso gave evidence the applicant had purchased the covers from a couple of different places at different times, but he did not have invoices or receipts for the purchase of the covers he said he supplied and he did not specify when or from where the covers were purchased.
33.	Mr Monasso gave evidence that the applicant had also installed the covers but had not charged the respondent for the labour for installing the covers.
34.	Mr Monasso gave evidence the applicant installed the covers before the concreting was done. It did not appear that he had any actual memory of installing the covers before the concreting was done but said that had happened because the covers have to be installed before concreting and paving is done as the covers sit over the pipe and level with the concrete and if the covers were not installed before concreting, the concreter would need to cut out the concrete to install them later.
35.	Mr Ferla admits that covers have been installed at the North Terrace property, but says that they were not supplied by the applicant. He gave evidence that the covers were supplied by his concreter, named Nino. He said Nino is no longer in Australia and is therefore not available to give evidence that he supplied the covers.
36.	Mr Monasso denied that the concreter supplied the covers.
37.	On the balance of probabilities, I am not satisfied that the applicant has met its burden of proof that it supplied the covers.  
38.	Mr Monasso did not give any evidence about when and where the covers were purchased, could not remember when the covers were supplied, did not give any evidence about who installed the covers on behalf of the applicant and has not produced any documentary or other corroborating evidence about the supply of the covers by the applicant.
39.	I do not accept that because the covers have been installed, that I should accept it is more likely than not the covers were supplied by the applicant, because the covers could have been supplied by another contractor working at the property, the respondent said the concreter supplied the covers and the applicant did not charge the respondent for the installation of the covers at the time.
40.	Mr Ferla also said that, as the applicant had not provided invoices showing the cost of the covers which were alleged to have been supplied in accordance with the North Terrace plumbing agreement, the applicant was not able to claim from the respondent the cost of the covers even if the applicant supplied the covers.
41.	To show the cost of the covers Mr Monasso produced an undated document with a label from Reece which says that price of one “Cover 200 Complete (Heavy) 150mm Cast Iron” cover is $191.80 including GST. He said the applicant did not purchase the covers supplied to the respondent from Reece but that was “the best place to find out what the cost would be”.
42.	I find that the respondent is not liable to make payment for the supply of the covers, even if I had been satisfied that the applicant had met its burden of proof that it supplied the covers, for the following reasons.
43.	Under the North Terrace plumbing agreement, the applicant is unable to make a claim for the cost of the covers in the absence of documents showing the cost incurred by the applicant for the purchase of the covers used in the works.
44.	Evidence of what it would cost to buy the same covers at an unspecified date from at Reece is not sufficient, as the applicant did not purchase the covers from Reece and therefore this is not a document showing the cost incurred by the applicant for the purchase of the covers used in the works.
Installation of tap in a yacht
45.	The applicant makes a claim for payment from the respondent of invoice number 2356 dated 5 January 2018 in the amount of $688.74.
46.	The applicant claims to have undertaken the work described in the invoice being the disconnection and removal of an existing faulty sink mixer tap and supply and installation of a “porter saga” sink mixer tap with pull out spray on 8 January 2015 on a yacht at Docklands.
47.	Mr Monasso gave evidence that he met Mr Ferla at Mr Ferla’s office at South Wharf. Mr Monasso said that he and Mr Ferla then went together to a Reece store in South Melbourne where Mr Ferla selected a tap. He said they went to the Reece store in South Melbourne because it is the closest Reece store to Mr Ferla’s office. Mr Monasso said he put the cost of the tap on the applicant’s account.  
48.	Mr Monasso produced a copy of an invoice from Reece dated 8 January 2015 for the purchase of a “Porcher Saga Sink Mixer W P/O Spray (4*)”. He said that he knows that this invoice was the tap for the yacht because on the invoice from Reece the job number/ name is “South Wharf”.
49.	Mr Monasso said that a day or two later, on about 8 January 2015, he installed the tap on the yacht which was moored at Docklands. He said he does not remember when he installed the tap but worked out the date after noting the date the tap was purchased on the Reece invoice.
50.	Mr Monasso also produced a copy of a calendar extract for 8 January 2015 which shows an entry for him at the Docklands between 11am and 1:30pm on 8 January 2015.
51.	Mr Ferla gave evidence denying that he requested the applicant to install a tap on his yacht. He also denied he went to Reece with Mr Monasso and selected a tap and denied that Mr Monasso installed the tap on the yacht.
52.	Mr Ferla admitted that he has taken the yacht to Docklands and in particular has taken it there on a couple of occasions over the last 15 years for new years eve events but denied that any work was done on his yacht whilst it was at Docklands by Mr Monasso.
53.	Mr Ferla said the tap described in the Reece invoice produced by Mr Monasso would be too large for the galley sink on the yacht, and was not installed on the yacht and produced three photos of the taps that he said were currently on his yacht.
54.	Mr Monasso agreed that none of those photos showed the tap described in the Reece invoice but said that Mr Ferla may have changed the tap since he installed it in 2015. Mr Monasso also said the tap shown in the photograph of the galley sink looks like it would be about the same size as the tap described in the Reece invoice but Mr Ferla disagreed and said it was smaller.
55.	It is now more than 5 years since Mr Monasso claims to have installed the tap and I do not accept that the photographs of the taps which are currently on the yacht are evidence of what taps may have been on the yacht five years ago. I also do not accept from viewing the photographs supplied by Mr Ferla that the tap claimed to have been installed in the yacht was not able to be installed because it would be too large for the galley sink.
56.	However, on the balance of probabilities, I am not satisfied that the applicant has met its burden of proof that it installed the tap on the yacht.
57.	The documents produced by Mr Monasso do not accord with his oral evidence that he and Mr Ferla purchased the tap a couple of days before he installed it in the yacht. The date on the Reece invoice was 8 January 2015 which is the same day Mr Monasso said he installed the tap and is also the date of the calendar extract he produced which has Docklands recorded between 11am and 1:30pm. I therefore do not accept Mr Monasso’s evidence about the installation of the tap on the yacht as he appears to have no independent recollection of the events relating to the installation of the tap.  
58.	I also do not accept that the documents produced by Mr Monasso are sufficient proof that he installed a tap on the yacht. The invoice for the purchase of the tap does not say where the tap was installed. The calendar extract does not say why Mr Monasso was going to Docklands.
Installation of new roof over kitchen area at THE Amess Street property
59.	The applicant makes a claim for payment from the respondent of invoice number 2357 dated 5 January 2018 in the amount of $2,822.67.
60.	The applicant claims to have undertaken the work described in the invoice being the removal of existing roof sheeting over kitchen area and supply and fitting of new colour bond roof sheeting and new poly carbon setting to skylight at the Amess Street property on 24 August 2015.
61.	Mr Monasso gave evidence that he attended the Amess Street property on 24 August 2015 with two of his workers James Binney and Scott Williams, who are also plumbers, to repair the roof over the kitchen area.
62.	He said he would have gone to the property to measure and then submitted measurements to the roofing company two days prior to 24 August 2015, the roofing company would have told him when the sheets had been cut to size and, when ready, he would have then picked up the sheets and delivered them to site. He said that he probably spent more than two hours doing these tasks.
63.	Mr Monasso produced an invoice from Metroll Victoria Pty Ltd dated 21 August 2015 for Corodek and screws and gave evidence this was the roof sheeting and some of the other materials used for the repair of the kitchen roof. The invoice shows the materials were ordered on 19 August 2015. Mr Monasso said that there was 30 square metres of roof sheeting supplied for the roof repair above the kitchen.
64.	He said that the roofing was installed by Mr Binney and Mr Williams. He said Mr Binney spent 6 hours at the property and Mr Williams spent 7.5 hours at the property doing the installation, including a lunch breach of half an hour.
65.	Mr Monasso produced a copy of a calendar extract for 24 August 2015 which he says shows an entry for him to pick up materials for Amess Street between 7:30am and 9:30am, for Mr Williams to be at Amess Street between 7:30am and 3pm to replace roof and flashings and for Mr Binney to be at Amess Street between 7:30am and 1:30pm.  
66.	Mr Monasso said that the workers did their timesheets on a calendar and they email them to him and he then looks where they have worked and pays them accordingly. 
67.	Mr Monasso also produced a handwritten document from Mr Binney setting out the hours he worked between 21 August 2015 and 27 August 2015 showing he spent 6 hours at Amess Street on 24 August 2015. He also produced signed statements from Mr Binney and Mr Williams dated 5 June 2020 that the calendars are a true record of their time and that in 2015 the applicant commenced keeping timesheets electronically via calendar entries.
68.	Mr Ferla produced a number of current photographs of the roof above the kitchen. Mr Monasso identified from the photographs the area of roof which he says was replaced. Mr Monasso said that the brown colour on the skylight is as a result of a dust storm not rust as suggested by Mr Ferla, and that he did not know who had put the bricks on the roof but that they did not leave the site with bricks on the roof.
69.	On the balance of probabilities, I am not satisfied that the applicant has met its burden of proof that it repaired the roof above the kitchen for the following reasons.
70.	The language used by Mr Monasso was not about what he actually remembers doing at the property but about what he would normally do when such a job was undertaken. He did not appear to have any specific recollection about this job and had reconstructed his memory based on documents.
71.	The invoice provided by the applicant which is claimed to be for materials for the job does not specify any location that the materials were to be used.  Therefore, that invoice is not evidence that those materials were used at the Amess Street property.
72.	I do not accept the calendar extract on its own as sufficient proof the works have been done. A calendar usually records what a person is planning to do on a day and is not evidence of what someone has done. There is no evidence about when the calendar entries were made and whether they were made contemporaneously with the work being undertaken or at a later time. There was no evidence about whether all the workers have access to the same calendar, or if someone else enters the information on the calendar which was produced.
73.	Mr Ferla said that he believes the statements, time sheets and calendar are “fudged and incorrect”. Mr Monasso denied they were “fudged” and said he could back it up with Mr Binney if he had time to do it and because they had provided signed documents about the time entries, he did not think it was necessary for them to give evidence.  
74.	Whilst I make no determination about the veracity of the statements and the time sheets and calendars they reference, as the statements have not been made under oath and properly tested with cross examination, they do not assist me in determining whether the repairs to the kitchen roof were undertaken by the applicant.
75.	The statements made by Mr Binney and Mr Williams were not made by affidavit or as a statutory declaration. Their statements are very brief and do not give details about the work they performed. Neither Mr Binney or Mr Williams were called to give evidence in support of their statements or to provide further information about the work they performed. The respondent did not have the opportunity to cross examine them about the accuracy of their statements or about the work they claim to have done.  
76.	Mr Monasso gave evidence that Mr Williams still works for him but Mr Binney works for himself now. He did not give any reason why he did not ask them to give evidence on his behalf except that he thought it was not necessary. In relation to Mr Williams, Mr Monasso said he could have asked him to give evidence if he had time do so. No reason was given why he had not had time to do so, and no adjournment was requested by him to give him time to have Mr Williams give evidence.
77.	In orders dated 21 January 2020 there is a note advising that Member C Edquist had explained to the parties the rule in Jones v Dunkel. This is a rule of evidence which may operate where there is an unexplained failure to call a witness. In appropriate circumstances this may lead to an inference that the uncalled evidence would not have assisted the party. I also explained to Mr Monasso during the first day of the hearing the possible effect of this rule. 
78.	As Mr Monasso was advised on two separate occasions about the possible consequence if he did not produce evidence that was available, and he was unable to give an acceptable reason why neither Mr Williams nor Mr Binney were called to give evidence in accordance with their statements, I draw the inference that their evidence would not be helpful to the applicant’s case. Therefore, their statements do not assist the applicant establish that the applicant repaired the roof above the kitchen.
Installation of partial new roof over bungalow at THE Amess Street property
79.	The applicant makes a claim for payment from the respondent of invoice number 2358 dated 5 January 2018 in the amount of $1,527.63.
80.	The applicant claims to have undertaken the work described in the invoice being the removal of sheeting over the bungalow area and supply and installation of new Colourbond roof sheeting and flashings at the Amess Street property on 17 September 2015.
81.	Mr Monasso gave evidence Mr Ferla would have called him and said he needed to see him at his mother’s place. He said Mr Ferla would have met him at the property and his mother might have been there. He said Mr Ferla told him where the loose sheets were and he told him what he could do.
82.	Mr Monasso said he then would have proceeded to organise the sheeting that had to be changed. He said he would have gone there prior to 17 September 2015 because it would normally take two days to cut the roofing sheets and it would have been two or three days from when he looked at the job to when it was done.
83.	Mr Monasso gave evidence that he went to the property on 17 September 2015 and dropped off the roof sheets and showed Mr Binney and Mr Williams what to do and then he went to another job but he does not recall what the other job was because he sometimes goes to ten jobs a day. Mr Monasso said the two hours of his time was that he had to go to two different places to collect materials being West Heidelberg for sheeting and Preston for the plumbing supplies.
84.	Mr Monasso produced an invoice from Metroll Victoria Pty Ltd dated 17 September 2015 for Corodek and another material and gave evidence this was the roof sheeting and some of the other materials used for the bungalow roof. The invoice shows the materials were ordered on 14 September 2015.
85.	He said Mr Binney and Mr Williams removed the rusted sheets and supplied new sheets with flashing where required and said words to the effect that “by the looks of things the labour cost was six hours so it was three hours per man”.
86.	Mr Monasso produced a copy of a calendar extract for 17 September 2015 which he says shows an entry for him to pick up materials for Amess Street between 7:30am and 10am, for Mr Williams to be at Amess Street between 7:30am and 11am and for Mr Binney to be at Amess Street between 8:30am and 11am.
87.	Mr Monasso also produced a handwritten document from Mr Binney setting out the hours he worked between 11 September 2015 and 17 September 2015 showing he spent 2.5 hours at Amess Street on 17 September 2015. He also referred to the signed statements from Mr Binney and Mr Williams dated 5 June 2020 that the calendars are a true record of their time and that in 2015 the applicant commenced keeping timesheets electronically via calendar entries.
88.	Mr Ferla produced a current photograph of the roof above the bungalow. The photograph shows that the roof has now been covered up with a layer of material which appears to be held down with bricks.
89.	Mr Ferla said that the finish of the tin roof of the bungalow has always been how it is shown in the photograph. Mr Ferla said someone put paper on the roof with bricks on top and it has been like that for 20 years.
90.	Mr Monasso denied this and said the material and bricks have been placed on top after the applicant did its works in 2015. Mr Monasso said he could not identify from the photograph which part of the roof was done because it is now covered up. He said that the applicant did not replace the whole roof, just a section of it. He said because it is a while back it was difficult to remember but he thinks it was the part at the back near the lane, on the far left hand side where you can see the spouting to the other roof. He said the applicant did the sheeting above that area. 
91.	He referred to the invoice to work out how much was replaced and said he was guessing but the invoice suggests the sections replaced were 16.8 square metres and 2.8 square metres.
92.	On the balance of probabilities, I am not satisfied that the applicant has met its burden of proof that it repaired the roof above the bungalow for the following reasons.
93.	Again, the language used by Mr Monasso was not about what he actually remembers doing at the property but about what he would normally do when such a job was undertaken. He did not appear to have any independent recollection about this job and again had reconstructed his memory based on documents.
94.	The invoice provided by the applicant which is claimed to be for materials for the job does not specify any location that the materials were to be used.  Therefore, that invoice is not evidence that those materials were used at the Amess Street property.
95.	For the same reasons given above I do not accept the calendar extract on its own as sufficient proof the works have been done and as Mr Monasso did not call Mr Binney and Mr Williams to give evidence, I do not accept their unsworn written statements as evidence that the applicant repaired the roof above the bungalow.
Installation of basin at THE Amess Street property
96.	The applicant makes a claim for payment from the respondent of invoice number 2415 dated 22 January 2018 in the amount of $1,089.22.
97.	The applicant claims to have undertaken the work described in the invoice being the disconnection of an existing pedestal basin and supply and installation of a Poly 600-LG vanity basin (the invoiced basin) at the Amess Street property. The invoice does not say when the work was done.
98.	Mr Monasso gave evidence that he went to Amess Street and met up with Mr Ferla to discuss the sort of vanity basin to be installed. He said the type of vanity basin was agreed and he ordered it from Burdens.
99.	Mr Monasso produced a preliminary docket from Burdens Plumbtec dated 29 June 2015 for a Timberline Florida Ensuite 800mm FL Standing Vanity with a ceramic top, RH drawers and chrome handles (the Timberline basin).
100.	Mr Monasso admitted that the Timberline basin in the Burdens docket is different to the description of the invoiced basin. He said that he does not know why there is a difference but that he knows he would not have done any other job in Amess Street and that is the only invoice he could find for a job in Amess Street.
101.	Mr Monasso said he put the Timberline basin in around the date it was delivered by Burdens. There is no delivery date or address on the docket but Mr Monasso said Burdens delivered it to the Amess Street property.
102.	Mr Monasso said he did the job himself with the assistance of one of Mr Ferla’s employees, named Des.
103.	Mr Monasso said he would have left the basin he pulled out on site.
104.	Mr Monasso said that after the Timberline basin was installed Mr Ferla rang him up and said that his mother was not happy with this vanity basin and that they need to go out and get another basin. Mr Monasso said to Mr Ferla that he was not too sure what his mother wants and asked Mr Ferla to go out and buy a basin and then he would come back and install it for him.
105.	Mr Monasso said Mr Ferla then supplied a new basin (second basin) without a vanity which Mr Monasso then installed with Des. He said after they completed the installation of the second basin, he put the Timberline vanity basin in the back of Des’ car and Des took it and put it in the container Mr Ferla was using for storage at North Terrace. Mr Monasso said he remembers this clear as day.
106.	Mr Monasso said the second basin they installed was the Corona basin shown in the current photograph of the bathroom which Mr Ferla produced. He said he did not charge for installing the second basin because he forgot to do so.
107.	Mr Ferla said the Corona basin shown in the photograph had been in the bathroom for 20 years, but Mr Monasso disagreed and said they did not make basins with the overflow and chrome bottle traps of this Corona basin 20 years ago.
108.	On the balance of probabilities, I am not satisfied that the applicant has met its burden of proof that it installed the invoiced basin (a Poly 600-LG vanity basin) at the Amess Street property for the reason that Mr Monasso admitted that the applicant did not instal such a vanity basin at the Amess Street property and gave evidence the vanity basin it installed was the Timberline basin.
109.	Whilst Mr Monasso has produced an invoice for the purchase of the Timberline basin and in evidence said that was the only invoice he could find, he did not bring a claim for installing the Timberline basin. Accordingly, I am not required to make a finding about whether or not the Timberline basin was installed at the Amess Street property.
Outcome
110.	Even if I accept that Mr Monasso’s recollections are honestly held, I am not satisfied that the applicant has met its burden of proof to establish that it supplied the materials and undertook the works referred to in the invoices for which it sought payment. 
111.	As such, I do not need to consider the matters raised by the respondent which go to Mr Monasso’s credibility and I also do not need to consider whether it was the respondent which requested the works be undertaken or whether the amount claimed for the works is as agreed or a reasonable amount.
112.	I find that the respondent is not liable to the applicant for the amounts claimed in the invoices and therefore I also do not need to consider the claim by the applicant for interest on any unpaid amounts.
Finding as to costs 
113.	The respondent seeks its costs for the time taken to retrieve information and prepare for the hearing of $5,126 that it paid to PPF Partners, the accountancy business owned by Mr Ferla.
114.	I do not have the power to award the costs claimed by the respondent for the following reasons.
115.	As this proceeding is a small claim within the meaning of Chapter 7 of the Austalian Consmuer Law and Fair Trading Act 2012 (ACLFTA), being a claim for the payment of money not exceeding $15,000, the Tribunal cannot order costs.
116.	Further, if this proceeding was not a small claim within the meaning of Chapter 7 of the ACLFTA, the costs that can be claimed pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) are confined to money paid or liabilities incurred for professional legal services and does not include the costs of the time spent by a litigant, or someone on behalf of the litigant who is not a lawyer, in preparing and conducting its case – which are the costs being claimed by the respondent.
117.	I will order that the proceeding is dismissed.

N Feeney 
Member