At the hearing on 30 January 2017, none of the parties was able to produce a copy

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Question:

At the hearing on 30 January 2017, none of the parties was able to produce a copy of the contract which was the subject of the dispute. I took all of the parties' oral evidence, and received their other exhibits, and required the parties to send in a copy of the contract. Eventually a copy of the contract was produced to me on 23 February 2017.

The Applicant conducts business as a migration agent. He claims that on or about 1 May 2015 he was engaged by both Respondents to supply migration services, and that whilst there were aspects of his retainer which had been negotiated orally, in the main the retainer agreement was set out in writing. The relevant document is a standard form contract document of seven pages, with some text inserted - such as the Respondents' names.

On the first page of the contract the two Respondents are named as "Client 1 [main applicant]" and "Client 2 [secondary applicant]" respectively. However, thereafter the word "Client" is used, and when seen in context it is clear that the Applicant's only client was the First Respondent. No clause of the contract renders the Second Respondent a guarantor of the First Respondent's liabilities, and the claim against the Second Respondent must be dismissed on that basis alone.

On the first page of the contract the service to be supplied by the Applicant is described as follows:

The above refers to one applicant for a visa - the First Respondent.

The written agreement was signed on the first page by the First Respondent. It was not signed by the Second Respondent.

contain Terms and Conditions. Page 5 sets out a schedule of fees, beginning with the total lump sum estimate of $4,200.00 and then a list of other items of work which could be charged for in addition. Page 6 contains bank account information enabling the Respondents to pay fees by electronic transfer.

Page 7 sets out the "stages" when fees were to be paid: $1,400.00 on signing the agreement, $1,400.00 for "skill assessment correction", and the balance at the "receipt of the invitation to lodge the visa". There is text next to each of these stages describing the "block of work to which the payment relates" - for example, breaking down the first $1,400.00 into six components of work, and the second instalment for "skill assessment correction" into five components.

Clauses (n) and (o) on page 7 say that the Respondents may place money with the Applicant on account, which money would be held on trust and drawn upon after the Applicant issued invoices, which could only be done when the Applicant "has completed each (relevant) block of work outlined above".

The Applicant sues for $1,400.00 under invoice number 1847 dated 5 May 2015, a copy of which was annexed to the Points of Claim. The invoice is expressed to be for the first payment of $1,400.00, because it begins with the text, "Migration agent fees: at the signage of the agreement. Provide advice relating to the client's migration goals and their choice of visa category". It also contains the text describing the other five components of that first stage.

Mr Rincon gave the following evidence. Before he was engaged, the First Respondent had tried to obtain a visa himself and had failed. He had sought to obtain a Migration Skills Assessment Competency Demonstration Report from Engineers Australia. Such a Report assesses a person's educational achievement and professional experience in their home country against a comparison set out in the Australian Qualification Framework for the purposes of awarding points under the General Skilled Migration Points Test.

In its assessment dated 14 October 2016 Engineers Australia stated that the First Respondent's University degree in 2006 was comparable with a Bachelor degree obtained in Australia. However and importantly, Engineers Australia had said that the First Respondent's experience as an aeronautical engineer in his home country between February 2006 and February 2009 had no equivalent to relevant Australian Skilled Employment. This is why the First Respondent's attempt to obtain a Visa had failed. There was a considerable delay between Applicant's contract of 1 May 2015 and the assessment advice of Engineers Australia.

Mr Rincon gave evidence that he has his own in-house engineer who is able to prepare documents which better reflect an applicant's educational and work experience, which the Applicant describes as "episodes". He said that after providing these services the Applicant invoiced the First Respondent. I note that the invoice is dated 5 May 2015. This seems to reflect the position that the Applicant had not obtained money on account on the signing of the agreement, and that instead the Applicant sought payment of his invoice only after the assessment of Engineers Australia and the Applicant's in-house engineer.

Mr Rincon gave evidence that the Respondent delayed payment. He did not complain about the services, but he simply did not pay.

The First Respondent gave evidence that the Applicant was supposed to lodge his application for a visa, but it did not do so. The First Respondent asked the Applicant for copies of the documents it had prepared, but the Applicant would not release them. The First Respondent was concerned because clause 6 of the Terms and Conditions said that the Applicant need not lodge any documents if there were any monies outstanding. He was suspicious as to whether the Applicant had performed any substantial services at all.

In responding to these allegations, Mr Rincon said that, commercially, the Applicant's contractual obligations were in three stages. The final stage was to lodge the application, but it only applies when the Applicant applies for visas which have a State nomination. Visas which do not have a State nomination are called "independent visas", and the First Respondent's visa was one of those. The Applicant was not yet obliged to perform the final stage, so it was irrelevant.

Mr Rincon said that whilst the second stage of the contractual works, as described in the Terms and Conditions, was that the Applicant would review documents, it could not review the documents that the First Respondent had lodged with Engineers Australia because he had already supplied them to Engineers Australia before he consulted the Applicant.

According to Mr Rincon, the task described in the second bullet point of the second block of work "advising and assisting re the documents required", was the core task and it had been done.

Having now received the contract with its Terms and Conditions I note the following:

(a) Clause 5(h) says that the Applicant is obliged to provide the Respondents with a copy of their application and any related documents on request, but that the Applicant is entitled to charge a reasonable amount for copies. The reasonable amount would simply be a photocopying charge, with perhaps a minor labour charge for the very short time that would be spent in photocopying the document. The clause does not entitle the Applicant to withhold copies of documents requested.

(b) Clause 6(e) says that the Applicant is not obliged to submit the Respondents' (meaning - the First Respondent's) visa application to the Department until "payment had been made in full of all fees due and payable at that stage". Clause 6(n) records the Respondents' agreement "that once the block of work is completed there is not (sic) refund available". Note the reference to fees which are "payble".

(c) Clause 7 contains five sub-clauses relating to termination of the contract. Either party can terminate the contract. Clause 7(e) says that if the contract is terminated the Respondents "must pay any fees outstanding for work already performed by the (Applicant). The (Respondents) are not required to pay any fees for work not yet performed by the (Applicant)".

When one examines the invoice dated 5 May 2015, and the contract including its references to "the block of work to which payment relates", it is clear that the Applicant has billed for the whole first stage payment of $1,400.00 without having performed all the services which that block.

Had the Applicant received $1,400.00 "at the signage of the agreement", that money would have been received on account and held on trust pending the rendering of an invoice. Under clause (o) on page 7 of the contract, the Applicant could only have drawn down that money - been "entitled to withdraw the fees relating to that block" - when it had performed the whole "block of work."

On Mr Rincon's evidence, the Applicant has not performed all of the work for that stage described in "the block of work". It has not done the third, fourth, fifth or sixth components.

The contract does not say, for example, that the Applicant will perform "items of work of the kinds described in the block of work at a specified hourly rate capped at $1,400.00". Had it said that, the Applicant might have been in a position to render an interim invoice for the proper proportion of $1,400.00 when it had done some of the work. Instead, the Applicant is not entitled to render an invoice until it has completed all of the work in the block: this is reinforced by clause (o) on page 7 and, the contract having been terminated, also by clause 7(e) which says the Respondents are not required to pay any fees for work not yet performed.

In the circumstances, I must conclude that the Applicant is not entitled to have pressed for payment of its invoice dated 5 May 2015 and that its claim for payment of that invoice must be dismissed.

Visa Application:

Visa 189/190 Skilled independent or Visa 489 Regional Sponsored.

Skills assessment before the relevant Authority.

Nomination before one State if necessary.