AA Technical Services Pty Ltd v Diedler [No 3]

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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

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Details
Case
[2024] WASC 287
Decision Date

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.