AA Technical Services Pty Ltd v Diedler [No 3] - [2024] WASC 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   AA TECHNICAL SERVICES PTY LTD -v- DIEDLER [No 3] [2024] WASC 287
CORAM:   STRK J
HEARD:   15 MARCH 2024 AND UPON CONSIDERATION OF SUPPLEMENTARY SUBMISSIONS FILED ON 25 JULY 2024
DELIVERED          :   14 AUGUST 2024
FILE NO/S:   CIV 1653 of 2016
BETWEEN:   AA TECHNICAL SERVICES PTY LTD
Plaintiff
AND
JOACHIM GOTTFRIED DIEDLER
First Defendant
PAUL GREGORY MCKENZIE
Second Defendant

Catchwords:
Unconscionable conduct - Statutory unconscionable conduct - Australian Consumer Law - Damages
Legislation:
Competition and Consumer Act 2010 (Cth) sch 2 s 21, s 236
Rules of the Supreme Court 1971 (WA) O 34 r 2, O 36 r 20
Supreme Court Act 1935 (WA), s 32
Result:
First and second defendant to pay damages and pre-judgment interest to the plaintiff
Category: B
Representation:
Counsel:

Plaintiff : C J Terren

First Defendant : H Q Vu

Second Defendant : No appearance
Solicitors:

Plaintiff : Roe Legal Services

First Defendant : Forbes Kirby

Second Defendant : Not applicable
Cases referred to in decision:
AA Technical Services Pty Ltd v Diedler [No 2] [2024] WASC 11
Broadway Pty Ltd v Lewis [2012] WASC 373
Foyster v Goynich (No 2) [1984] WAR 91
Goldbay Corporation Pty Ltd v Apthorp [2006] WASCA 84
Henville v Walker (2001) 206 CLR 459
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41, (2002) 210 CLR 109
Lampropoulos v Lynne Kolnik as executor of the will of Gerald Thomas Foley [2010] WASC 193 (S)
McQuillan v J F Thomson (WA) Pty Ltd [1984] WAR 258
Olympic Holdings Pty Ltd v Lochel [2004] WASC 61
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as trustee for Paxhill Trust t/as Property People [2012] WASC 271 (S2)
Pavich v Bobra Nominees Pty Ltd (1988) 84 ALR 285
Province Leader of Oceania Province of Congregation of Christian Brothers v Lawrence [2021] WASCA 77
Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332
Stone v Smith (1887) 35 Ch D 188
Western Australian Planning Commissioner v Arcus Shopfitters Pty Ltd [2003] WASCA 295
Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (2019) 272 FCR 373

Table of Contents
Introduction
The participation of Mr McKenzie
The law
Disposition
Legal fees
AA Technical Services' position
Mr Diedler's position
Disposition

Removal and storage fees
Storage fees
Other removal fees

Relocation expenses
Excess rent and outgoings
Increased salary costs
Seizure Costs
Payment made to AWD Diversified
Payment made to A2B

Interest
Power
Exercise of the discretion

Conclusion and orders
Sch A - Time and disbursement details
Sch B - Calculation of damages
STRK J:
Introduction
1AA Technical Services Pty Ltd as trustee for the Alan Dodd Family Trust was found to be entitled to damages recoverable against Joachim Gottfried Diedler and Paul Gregory McKenzie pursuant to the Australian Consumer Law (sch 2 of the Competition and Consumer Act 2010 (Cth)) s 236, together with interest on all sums pursuant to the Supreme Court Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASC 287
Decision Date: 14 AUGUST 2024

CaseChat Overview and Summary

The case involved a dispute between AA Technical Services Pty Ltd, the plaintiff, and the first and second defendants, Diedler. The plaintiff sought damages for unconscionable conduct under the Australian Consumer Law, claiming that the defendants had engaged in statutory unconscionable conduct by refusing to pay for services rendered. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendants had failed to pay for technical services provided, and that this conduct constituted unconscionable conduct under the Australian Consumer Law. The court had to determine whether the defendants' conduct met the criteria for unconscionable conduct under the Australian Consumer Law and, if so, what damages should be awarded to the plaintiff. The court considered the nature of the relationship between the parties, the fairness of the transaction, and the conduct of the defendants in refusing to pay for the services provided. The court found that the defendants' conduct did indeed constitute unconscionable conduct under the Australian Consumer Law, as it was not fair or reasonable to refuse to pay for services rendered. The court also found that the plaintiff was entitled to damages for the loss suffered as a result of the defendants' conduct. The court awarded damages and pre-judgment interest to the plaintiff against the first and second defendants. The court found that the amount of damages should be determined in a separate proceeding.

Orders

Orders of the court

First and second defendant to pay damages and pre-judgment interest to the plaintiff

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Plaintiff	:	C J Terren
First Defendant	:	H Q Vu
Second Defendant	:	No appearance

Plaintiff	:	Roe Legal Services
First Defendant	:	Forbes Kirby
Second Defendant	:	Not applicable