Acisulu v Raiser Pacific Pty Ltd

Case •

[2025] NSWCATCD 72

•

21 August 2025

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Acisulu v Raiser Pacific Pty Ltd [2025] NSWCATCD 72
Hearing dates: 30 August 2024; 8 November 2024
Date of orders: 21 August 2025
Decision date: 21 August 2025
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Deputy President
Decision:

(1)   The respondent, Raiser Pacific Pty Ltd, is to pay the applicant, Ali Acisulu, the sum of $3,403.24 immediately.

Catchwords:

CONSUMER LAW – breach of contract – Uber driver – deactivation of access to Uber app – breach of contract - assessment of damages – whether sufficient evidence to prove loss

Legislation Cited:

Australian Consumer Law 2010 (NSW) (ACL)

Fair Trading Act 1987 (NSW)

Cases Cited:

Abdalla v Raiser Pacific Pty Ltd [2024] NSWCATCD 7

Bell Solar Pty Limited T/as Sunboost v Anderson [2021] NSWCATAP 278

G v H [1994] HCA 48; (1994) 181 CLR 387

Najafi v Raiser Pacific Pty Ltd [2023] NSWCATCD 153

Re Day [2017] HCA 2; (2017) 340 ALR 368

Rehman v Raiser Pacific Pty Ltd [2024] NSWCATCD 3

Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31

Singh v Raiser Pacific Pty Ltd [2024] NSWCATCD 4

The Owners-Strata Plan No 2661 v Selkirk [2024] NSWSC 760

Texts Cited:

None cited

Category:Principal judgment
Parties: Ali Acisulu (Applicant)
Raiser Pacific Pty Ltd (Respondent)
Representation:

Applicant (self-represented)

Solicitors:
Dentons (Respondent)
File Number(s): 2024/00013018
Publication restriction: Nil

REASONS FOR DECISION

  1. The proceedings involve a claim by a former Uber driver for $10,000 in compensation or damages. The applicant alleges that he was “wrongfully terminated” by Uber from having access to its service application (Uber App).

  2. The proceedings in the Tribunal were filed on 10 January 2024. In the application filed with the Tribunal, the applicant states that he is an independent contractor, who entered into an agreement with Uber in 2019. The application states that Uber had terminated his access to its app on 7 February 2021 on the basis that the applicant had verbally abused a customer and made threatening remarks.

  3. The application states that the applicant was earning $749.09 per week as a driver on the Uber platform. He denies that he breached the Uber Community Guidelines, and asserts he was not given a fair opportunity to deny the allegation.

  4. The proceedings were listed for a directions hearing before Rosser PM on 16 February 2024. The proceedings were set down for hearing, with procedural directions for the filing and serving of documentary evidence. Further, the following relevant procedural directions were made:

“8. The Tribunal notes that it is not in dispute that the claim is a consumer claim and has been lodged within time the Tribunal further notes that the applicant seeks damages of $10,000. The issues for determination will include:

(a) did the respondent breach (or repudiate) its contract with the applicant by deactivating the account?

(b) if so, what loss has the applicant suffered as a result of the breach or repudiation?

9. The parties have for legal representation, on condition that the respondent is not to make an application for costs if it is successful.”

Applicant’s Points of Claim and Documentary Evidence

  1. On 8 March 2024, the applicant filed his documents.

  2. Those documents were:

  3. Points of Claim. The Points of Claim alleged that the applicant “agreed to the Raiser Pacific Pty Ltd Uber B.V. Services Agreement in approximately 2019” and began “transportation services” as an Uber “driver partner”. The applicant states he signed the agreement electronically. The applicant states that he was “making $749.09 per week net”.

  4. The applicant alleges that Uber had terminated the service agreement on 7 February 2021. The basis of the termination was that the applicant had allegedly breached the Community Guidelines due to “verbally abusing a rider and making threatening remarks.” The applicant states that Uber had not provided him with a reasonable opportunity to dispute the allegation for appealed the decision to terminate his access to the app.

  5. The applicant claims $10,000 in damages or compensation for financial loss due to the alleged wrongful termination of his access to the Uber App. He does not seek reinstatement of access to the Uber App.

  6. The Raiser Pacific Pty Ltd and Uber B.V. Service Agreement (updated 1 December 2017).

  7. The Uber Community Guidelines Australia and New Zealand.

  8. A Statutory Declaration of the applicant dated 6 March 2024. The statutory declaration is brief. It states the “accusations made against me are all false and not valid;” that the applicant “always treated by passengers with the utmost respect and integrity and have followed Uber’s Community Guidelines and Policies;” and that the applicant had “frequently encounter intoxicated riders who would complain about the surge pricing and lodge a report in order to get a refund and a free trip.”

  9. An email from the applicant to that email states that on approximately 7 February 2021, Uber restricted the applicants access to the platform on the basis of a “false accusation” that he had verbally abused a rider and made threatening remarks. The email states the allegation was false, and it was “common practice” customers to make false allegations against drivers to obtain a free trip or other discount. The email states that the applicant seeks to be reinstated to access to the Uber App within 10 days, or he would commence legal proceedings.

  10. An exchange through the Uber App between Uber and the applicant. On 6 February 2021, the applicant received the following:

“Hi Ali,

This is Sam from the Community Operations team at Uber. We have received a concerning report from your rider from a recent trip where you were involved in a verbal altercation. Due to the nature of this feedback, with temporarily removed your access to the Uber app while we investigate further. If you have any information as to why this feedback may have been received, you can let us know by replying to this message and will take this on board. We look forward to hearing from you.”

  1. The applicant responded as follows:

“I went to pick them up there was six of them they were drunk and were still drinking and I told them they can’t drink in the car and they weren’t wearing masks and refused to wear it and also want to sit in the front seat which they’re not allowed to do and they were arguing with me and I told them sorry I can’t keep six people in the car as no one can sit in the front seat due to Covid. Then I started driving away and they swore at me and threw the beer bottles behind me and ran after the car and threatened to bash me. The neighbour has witnessed the whole thing.”

  1. The applicant then sent a more detailed response as follows:

“I went to pick up the passengers and there was six of them and they were all drunk. They still had bottles and drinks in their hands so I advise them they can’t drink them in the car. They were also not wearing masks and were refusing to wear them when I advise them of the Covid safe Uber policy. Because there were six of them one want to sit in the front seat. I advise them they couldn’t sit in the front seat as per the Covid guidelines bylaw. This is when all the passengers got hostile and angry and began verbally abusing me with swearing at me. I was fearful of my safety as they were not cooperating with the rule so I advise them to get another Uber that can fit them as per the guidelines and began to drive off. When I was driving off they threatened to bash me and some of the passengers through the beer bottles at my car. I felt very unsafe as they also began chasing after my vehicle. The neighbours of the passengers witness the whole incident.”

  1. On 7 February 2021, Uber sent the following to the applicant:

“Hi Ali,

This is Sam here from the Community Operations team at Uber. We received a report from one of your riders that you verbally abused them and made threatening remarks towards them. We have looked into this matter further and as a result of our review we will be ending our partnership with you effective as of this email. It was not a swift decision as we value each and every driver who chooses to partner with Uber. Reports of behaviour of this nature are extremely concerning and are in direct violation of our Community Guidelines; as such, in the interests of maintaining the safety of all users of the Uber app a decision was made to deactivate your account as a result of this feedback. We take the welfare of our riders and driver-partners very seriously here at Uber so we hope you can understand our position. This decision is final, please do not attempt to contact Uber again regarding this matter. We wish you the best of luck for the future and thank you for your time using the Uber app.”

  1. An email sent by the applicant on the Uber App dated 23 September 2023. The applicant asserts the decision to terminate his access to the Uber App was unfair, and denies that he verbally abused any customer or engaged in threatening conduct. The applicant sought reactivation of his account, or he will take legal proceedings.

  2. An email from Uber dated 23 September 2023 from “Michael” stating that Uber had “reviewed your concern” and had “escalated this matter to our community operations team”.

  3. An email from the applicant on 23 September 2023 a response by Uber to his demand to re-activate the Uber account.

  4. An email from “Ruby” of Uber dated 24 September 2023. That email states as follows:

“ Hi Ali,

Thank you for letting us know you want to have your deactivation reviewed. We have looked into this and unfortunately have not decided not to proceed with your request. Based on our review we see that you have not provided any further information since your last review request, where the decision was to uphold your deactivation. We appreciate your time using the Uber in which you the best in your future endeavours.”

  1. A screenshot of the applicants driver profile on Uber. The profile stated that the applicant had done 5188 trips and had a 4.84 Star rating.

  2. A document purporting to be a summary of the applicant’s earnings before the deactivation of the Uber account, and after deactivation of the Uber account. The document is prepared in a table form. The document asserts that the applicant had:

  1. Gross earnings prior to deactivation of the Uber driver account on 7 February 2021 of $65,225.80.

  2. Deductions (Uber service fee; other charges from Uber; and charges from third parties such as tolls) of $23,923.90.

  3. Net earnings of $41,292.87 net weekly earnings from Uber of $794.09 per week (calculated as $41,292.87 divided by 52).

  4. Nil earnings from Uber after 7 February 2021.

  1. An Uber “Tax Summary for the Period FY 2019/2020”. That document stated that for the relevant period the applicant had “transportation income” of $64,742; “other income” of $483; and “other potential deductions”. The “other potential deductions” were “Uber service fee (transportation leads) of $15,066.38; “other charges from Uber” of $1,247.80; “charges from third parties (tolls/airport/government) of $7,618.75 and “on trip mileage”-17,771 klm.

  2. An Uber “Tax Summary for the Period 2021/3”. That document only shows one fair income on 6 February 2021 (total amount $36.75).

Respondent’s Documents and Written Submissions

  1. The respondent filed documents and submissions on 10 April 2024 and 1 July 2024.

  2. The documents filed on 10 April 2024 are superseded by the documents and submissions of 1 July 2024. Accordingly, those documents and submissions are detailed.

  3. The documents and submissions are as follows:

  4. Affidavit of Ms H. McCormick dated 1 July 2024. The affidavit states Ms McCormick is a “Solicitor engaged by Uber” and her affidavit is based on her “review of Uber’s internal records related to this matter and the enquiries I have personally made of Uber in relation to factual matters made in these current proceedings lodged by the Applicant.”

  5. However, the affidavit does not set out the ‘personal enquiries’ made with any witness other than an email exchange with “PFK Sydney (Uber’s registered office)” on 17 and 18 January 2024.

  6. Rather, it sets out Uber’s policies; procedures; the applicant’s user ‘star ratings;’ and summarises the complaints that Uber received.

  7. It is asserted the following complaints about the applicant were received:

  1. 22 November 2019-the applicant was verbally aggressive towards other drivers and told the passenger he would drop the passenger off in the middle of the street if there was excessive traffic at the destination, which made the passenger feel unsafe.

  2. 11 March 2020-the applicant drove erratically and did not know where he was going.

  3. 8 June 2020-the applicant was “very rude” and left the passenger in an “unsafe space”.

  4. 9 July 2020-the applicant was verbally aggressive and swearing at other drivers and told the passenger he does not accept dogs, despite the passenger booking a pet friendly Uber.

  5. 15 August 2020-the applicant was verbally aggressive and swearing to towards other drivers.

  6. 24 October 2020-the applicant had to be asked by the passenger to wear a facemask.

  7. On 13 December 2020, the applicant was “rude” to a passenger over the phone and “cancelled the job” after the passenger had walked to the agreed pick up point. The message from the passenger to Uber stated the driver was “rude” and “unprofessional” because: “The driver was in the correct spot when we try to call him, he was really rude, yelling us by phone. We coordinate to walk where he was but when we arrived the place he just cancelled the job. I am really disappointed with the service because we are with my parents who are 70 and 75 years old walking back for nothing. I am expecting to receive my money back ASAP.”

  8. On 6 February 2021, the applicant had made racist remarks towards other drivers and made the passenger “uncomfortable”. The complaint on the Uber App from the passenger relevantly states “the driver made several racist remarks during the journey”. There are no details of the “racist remarks”. There is are no details of the applicant refusing to pick up passengers.

  1. The affidavit also contains:

  1. Uber Services Agreement.

  2. Uber Community Guidelines

  3. Map details of some of the trips of the applicant that were subject to complaints.

  1. The respondent also provided written submissions dated 1 July 2024. Those submissions asserted that the applicant had failed to prove any cause of action and failed to prove any loss. The submissions refer to two unreported decisions of General Members of the Tribunal in 2023.

Hearings on 30 August 2024 and 8 November 2024

  1. The applicant appeared and had assistance from a Turkish interpreter booked by the Tribunal. A Solicitor, Ms Murray-Baptista, appeared for Uber.

  2. At the hearing on 30 August 2024, the documentary evidence of the parties was admitted into evidence, subject to weight and relevance. Ms McCormick was not present, but it was stated she was available for questioning by audio-visual link. The applicant did not seek to question her.

  3. The applicant gave evidence by affirmation. He denied the allegations made that formed the basis the decision of Uber to terminate his access to the Uber Application. In particular, he denied the alleged conduct on 6 February 2021, and stated that 7 persons had tried to get into the vehicle (when it only had the capacity for 6); the passengers had alcohol with them; and the was threatened with bottles.

  4. The applicant stated that he understood, and had complied with, the Uber Community Guidelines and the complaints against him had no foundation. He believed they were false complaints motivated by passengers who sought to obtain a credit or a free trip.

  5. The applicant was cross examined on 30 August 2024. He remained steadfast that he had not breached the Uber Community Guidelines and his termination was unjustified. The applicant stated that he had waited approximately 2 years and 11 months from the date of his deactivation from the Uber app to bring proceedings in the Tribunal because he was working as a driver with Didi. He accepted that he had not provided any earning documentation from Didi. The applicant stated he had not been driving for Didi at the time he had been driving for Uber.

  6. Unfortunately, the Turkish interpreter had to leave before the hearing was able to conclude. Accordingly, the hearing was adjourned part heard.

  7. The hearing resumed on 8 November 2024. A Turkish interpreter was present throughout the hearing. There was further cross examination of the applicant. The applicant continued to deny the conduct that Uber had relied upon to deactivate his access to the Uber app. There were certain events that he asserted he could not remember. Both parties then made closing submissions.

Consideration

Jurisdiction and Breach of Agreement

  1. For some unknown reason, the written submissions of the respondent did not refer to a number of reported decisions of the Tribunal involving similar disputes. Those decisions are Najafi v Raiser Pacific Pty Ltd [2023] NSWCATCD 153 (Najafi); Rehman v Raiser Pacific Pty Ltd [2024] NSWCATCD 3 (Rehman); Singh v Raiser Pacific Pty Ltd [2024] NSWCATCD 4 (Singh); and Abdalla v Raiser Pacific Pty Ltd [2024] NSWCATCD 7 (Abdalla). In each of those decisions, the Tribunal held the relationship between the applicant and the respondent constituted a consumer claim to which the Tribunal had jurisdiction under Part 6A of the Fair Trading Act 1987 (NSW) (FT Act).

  2. The Tribunal proceedings were filed in January 2024, less than 3 years from the date that the applicant was deactivated from the Uber App. The potential cause of action of the applicant are breach of contract (Najafi; Rehman; Singh and Abdalla) and unfair small business contract terms under ss 23-25 of the Australian Consumer Law 2010 (NSW) (ACL) (Abdalla). The proceedings have been brought within the 3 year limitation period in s 79 of the FT Act.

  3. In Najafi; Rehman; Singh; and Abdalla, the Tribunal set out in detail the Uber Service Agreement and the Uber Community Guidelines. There is no material difference in the Uber Service Agreement and Uber Community Guidelines in this matter, and it is unnecessary to set those provisions out again for the purpose of this decision.

  4. In this matter, no argument was advanced by the applicant that the Uber Services Agreement contained unfair contract terms. In Abdalla, the issue of whether certain terms of the agreement were unfair contract terms under ss 23-25 of the ACL (NSW) was raised and Robertson SM stated, without having to conclusively determine the issue, at [110] that:

“…to the extent that the last sentence of clause 4 of the Services Agreement permits the respondents to deactivate or restrict access to the Driver App without notice or cause, or on the basis of a complaint the details of which have not been disclosed to the driver and the veracity of which has not been tested, that provision is void as an unfair contract term.”

  1. As the operation of ss 23-25 of the ACL was not raised in this matter it is unnecessary and inappropriate to consider those provisions.

  2. In Rehman; and Singh the Tribunal held that breach of the Service Agreement by Uber when determining that the driver not be reinstated would constitute breach of contract, and (subject to proof of loss) establish a cause of action to which the Tribunal. In Singh, the Tribunal stated as follows (at [147]-[152] and [160]):

“When assessed objectively, the terms of the contractual agreement require that the following occur before a termination is legally justified under cl. 16(b) of the Services Agreement:

There is a material breach of the terms of the agreement, which includes the Community Guidelines.

The breach is sufficient, by reason of either the number of breaches for the seriousness of the particular breach to justify termination.

If a review is conducted because the driver has requested a review or reconsideration, that review must be conducted in a way that genuinely considers the reasons and explanation put forward by the driver as to whether or not there is a material breach or breaches sufficient to justify termination of the agreement. Accordingly, whether or not a “material breach” has occurred, and an internal review of the decision to deactivate access to the app must involve consideration of the following matters:

(a) The nature of the alleged breach.

(b) The number of alleged breaches.

(c) The number of the alleged breaches in comparison to the number of trips performed by the driver and the drivers overall rating by passengers.

(d) The drivers explanation in response to the alleged breaches.

In construing the terms of the contract, including implying into the contract requirements for a genuine review of the decision to do to deactivate on the merits, the Tribunal is not suggesting that the terms of the contract, or business efficacy, require an extensive or elaborate review process of a type equivalent to a review of an administrative decision by a government department. However, there must be some minimum or threshold standard for the efficacy of a review, otherwise the contractual term is devoid of any meaning.

The contract between the parties is a commercial agreement. It is arguable that the bargaining power of the parties is unequal. However any legal provisions dealing with legislation that provides a remedy to unconscionable conduct, or unfair contract terms, are separate issues to interpretation of terms of the contract and whether or not the contract has been breached.

Further, just as the safety and comfort of passengers is important, so is the decision by the respondents whether or not to terminate the Services Agreement based on “material breach” by the driver. In this matter, the applicant had been working for over 3 years full time driving for Uber, and the decision to terminate caused his income to immediately cease.

In Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 (Rehman), Ellis SC SM did not set out in detail contractual principles in respect of interpreting the terms of the contract. However, the Senior Member made the following comments at [143]:

“It is convenient to here note that Uber did not contend that the words “in its sole discretion” in the Agreement meant that any decision as to deactivation was a matter for Uber, did not have to be reasonable, and could not be reviewed. Indeed, the fact that Uber suggested its decision was reasonable provide support the two points: first, that the decision to deactivate must be made on reasonable grounds; secondly, that the decision to deactivate can be reviewed by the Tribunal.”

Although broad comments regarding “reasonable grounds” may be apt to conflate administrative law principles with contractual principles, the approach taken by the Tribunal in this matter to construing the terms of the contract is not obviously inconsistent with the approach taken by Ellis SC SM in Rehman. If there are no reasons provided as to why the review sought by the driver was rejected, it is difficult to conclude that a genuine review occurred.

…

The Tribunal is satisfied that the applicant has proved, on the balance of probabilities that he was not in breach of an essential term of the contract or had committed sufficient breaches of non-essential terms as of August 2023. The respondents were not justified in terminating the Service Agreement. Accordingly, the respondents have repudiated the agreement, and the applicant is entitled to damages if loss caused by the breach is proved.”

  1. In this matter, the applicant denies the conduct alleged by the passengers. The conduct does not involve serious matters such as inappropriate sexual comments and sexual assault under the provisions of the Community Guidelines. No detailed dangerous driving complaints are made. The complaints, as set out on the Uber App, are vague. There is no evidence from any of the persons who complained, other than brief comments in the Uber app. The number of complaints are moderate in the context of the amount of driving performed by the applicant over the relevant period. The respondent did not provide any evidence that there was any genuine internal consideration or review of the decision to terminate the respondent from access to the Uber app.

  2. The Tribunal is satisfied that the applicant has proved breach of contract by the respondent in respect of the decisions to terminate access to the Uber App and refuse to reinstate access.

Assessment of Damages

  1. As was pointed out in Rehman; Singh; and Abdalla, the Uber Services Agreement between the parties allows Uber to terminate the agreement without any breach of the Service Agreement or Uber Community Guidelines with 30 days’ notice.

  2. Accordingly, if damages are proved, they are limited to 30 days of net loss of income (i.e. gross income less expenses) for the reasons discussed in Rehman; Singh; and Abdalla.

  3. In Rehman; Singh; and Abdalla the Tribunal set out the applicable legal principles for damages for breach of contract. Those principles are well established (see, for example, Bell Solar Pty Limited T/as Sunboost v Anderson [2021] NSWCATAP 278 at [59]-[63]). Contractual damages are assessed from the perspective of putting the innocent party in the position it should have been had the breach not occurred and the contract performed. However, if a party fails to prove loss caused by the breach, it may either only be awarded nominal damages; or no damages at all. A respondent may also prove that the applicant’s conduct is the cause of the loss.

  4. As Black J stated in Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 at [41]-[42]:

“The damages to which RBD is entitled…is the monetary sum which, so far as money can, represents “fair and adequate compensation for the loss or injury” which it sustained by reason of that breach or repudiation: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 116 per Deane J. The Court must do the best it can to make a reliable assessment of damages, where damages are difficult to assess, including where a party has failed to lead the best evidence of damages: Commonwealth of Australia v Amann Aviation Pty Ltd above at 83, per Mason CJ and Dawson J, 125 per Deane J, 153 per Gaudron J. In Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 at [135], Beazley JA observed that:

“Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provides for breach of contract, an award of damages….Such damages should not be nominal only, notwithstanding that the award may be difficult to assess…” (Citations omitted)

On the other hand, the case law also recognises that damages must be proved with a degree of precision which reflects the proof that is reasonably available to the parties: State of New South Wales v Moss (2000) 54 NSWLR 536 at [72]; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38]. In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that “if the evidence called on behalf of [the plaintiff] fails to provide any rational foundation for a proper estimate of damages, the Court should simply decline to make one”. That approach was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 at 243 and by the Court of Appeal in Troulis v Vamvoukakis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof, but there was an absence of raw material to which good sense may be applied, “[j]ustice does not dictate that … a figure should be plucked out of the air”. That decision has been approved in subsequent cases, including McCrohan v Harith [2010] NSWCA 67 at [128], where McColl JA (with whom Campbell JA and Handley AJA agreed) held that an estimate of damages, in the nature of a “guess”, should not be made where precise evidence of the damages suffered could have been adduced, but was not. I followed that decision in Re Hair Industrie Penrith Pty Ltd, Hair Industrie Merrylands Pty Ltd [2015] NSWSC 1578 at [20], on which I have drawn for the summary which appears above.”

  1. It is well established that evidence is to be assessed on the basis of the ability of a particular party to adduce evidence on the relevant issue and that the Tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found (G v H [1994] HCA 48; (1994) 181 CLR 387 at 391-392 and Re Day [2017] HCA 2; (2017) 340 ALR 368 at [15] and [18]).

  2. In this matter, the applicant has provided limited evidence of his loss of net income (gross income less business expenses). If his figure of $794.09 net loss per week was accepted his daily net loss is $113.44, and the applicant’s damages are $3,403.24 (30 days of net income), subject to the Tribunal being satisfied he sustained 30 days of loss.

  3. The applicant’s 2019-2020 income from Uber was the basis of assessment of loss, his yearly net income from Uber was $41,292.07. That equates to $794.08 per week, so there is no material difference to the amount that the applicant put forward as his calculation of loss.

  4. A difficulty the applicant faces is that he has provided no financial or income records regarding what he has earned from Didi and when he started to earn income from Didi. As discussed previously, the applicant’s oral evidence at the hearing was that he started as a Didi driver after he ceased as an Uber driver and he did not drive for both Uber and Didi at the same time. The applicant did not provide any bank statements or income tax returns. His evidence to establish loss is dependent upon his documentary evidence of earnings from Uber and his oral evidence.

  5. However, Uber did not explore in cross examination to any extent when the applicant started to work for Didi or how much he was earning. If the Tribunal is satisfied the applicant has provided sufficient evidence to establish loss caused by the respondent’s breach of contract beyond mere speculation or guesswork (even if the evidence is imperfect and the loss is difficult to estimate), the onus shifts to Uber to establish that the conduct of the applicant is the cause of his loss, such as not driving for Didi and earning income from Didi. As Leeming JA stated in The Owners-Strata Plan No 2661 v Selkirk [2024] NSWSC 760 at [127]-[128]:

The reference to British Westinghouse is to Viscount Haldane’s statement that in a claim for breach of contract the plaintiff is under a “duty” to take all reasonable steps to mitigate its loss. That language is not to be understood as representing the law in Australia, even in cases of breach of contract. I am bound by what was said by the Court of Appeal in Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; 10 BPR 18,235 at [187]:

A plaintiff who acts unreasonably in failing to minimise his loss from the defendant’s breach of contract will have his damages reduced to the extent to which, had he acted reasonably, his loss would have been less. This is often misleadingly referred to as a duty to mitigate, although the plaintiff is not under a positive duty. The plaintiff does not have to show that he has fulfilled his so-called duty, and the onus is on the defendant to show that he has not and the extent to which he has not (TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130). Since the defendant is a wrongdoer, in determining whether the plaintiff has acted unreasonably a high standard of conduct will not be required, and the plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct if it was reasonable for the plaintiff to do what he did (Banco de Portugal v Waterlow and Sons Ltd [1932] AC 452; Pilkington v Wood [1953] Ch 770; Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5).

That is why the Court of Appeal has, repeatedly, made reference to the “so-called” duty to mitigate: see Galafassi v Kelly (2014) 87 NSWLR 119; [2014] NSWCA 190 at [157]; Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65; 20 BPR 42,355 at [75] and see Bak v Glenleigh Homes Pty Ltd [2006] NSWCA 10 at [3].

  1. Considering that the applicant is limited to 30 days of loss, the evidence of the applicant, although not extensive, is sufficient for the Tribunal to be satisfied that there was a 30 day period after 7 February 2021 where he would have driven for Uber had he not been wrongfully deactivated from the Uber App and was not otherwise driving for Didi. The Tribunal is not satisfied the applicant’s conduct is the cause of his loss.

  2. Accordingly, the Tribunal is satisfied that he has sustained loss in the amount of $3,403.24.

ORDERS

  1. The respondent, Raiser Pacific Pty Ltd, is to pay the applicant, Ali Acisulu, the sum of $3,403.24 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

Decision last updated: 19 September 2025

Cases Citing This Decision

0

Cases Cited

23

Statutory Material Cited

2

Abdalla v Rasier Pacific Pty Ltd [2024] NSWCATCD 7
G v H [1994] HCA 48
Russo v Aiello [2003] HCA 53