Azadegan v Triple Lock Storage P/L - [2025] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
AZADEGAN v TRIPLE LOCK STORAGE P/L
[2025] SADC 76
Reasons for Ruling of his Honour Judge Soulio
16 June 2025
MAGISTRATES - APPEAL AND REVIEW
Review of a Minor Civil Decision pursuant to s 38 of the Magistrates Court Act 1991 (SA).
Applicant seeks review of Judicial Registrar's decision dismissing the applicant's claim against the respondent for breach of contract or damages in conversion.
Leave granted for applicant to appear remotely, and to be represented by counsel.
Held: Application dismissed.
Unclaimed Goods Act 1987 (SA) s 6; Magistrates Court Act 1991 (SA) s 38, referred to.
DeVries v Australian National Railways Commissioner (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267; Plos v Mroz (2015) LSJS 276; Harradine v The District Court of South Australia [2012] SASC 96, considered.

AZADEGAN v TRIPLE LOCK STORAGE P/L
[2025] SADC 76

Overview

In October 2020 the applicant was in the process of relocating from Sydney to Adelaide. The respondent is a removalist. The applicant engaged the respondent, through a booking agent, to move her furniture and other household items initially from two locations in Sydney, Dundas Valley and Homebush, to a single location in Adelaide.
The goods situated at Homebush were collected and transported to Adelaide. The goods at Dundas Valley were not collected. When the respondent arrived at the applicant's house in Adelaide with the goods from Homebush, she refused to accept them. As a result of the applicant's refusal, the respondent delivered the goods to a commercial storage facility, and stored the goods, ultimately at his own cost.
In about September 2022, almost two years after the initial movement of the goods, and after having become liable for storage fees of $25 per week to store the goods at the commercial storage facility, the respondent assumed that the applicant did not want the goods; and having attempted to make contact with her, ultimately disposed of the goods.
The applicant instituted proceedings seeking damages.
Proceedings in the Magistrates Court
So much by way of overview is derived from the decision of Judicial Registrar Burke of the Magistrates Court in an action in the minor civil jurisdiction of the Magistrates Court. There the applicant alleged that the respondent had breached the contract she had with the respondent. She further alleged that the respondent had acted in breach of the Unclaimed Goods Act 1987, (‘the Act’) and accordingly she was, in effect, able to bring an action for damages in conversion.
The initial hearing took place with the applicant appearing via telephone, having apparently obtained leave to do so. She did so on the basis that she suffered the after-effects of having developed COVID some time in 2020. I will return to that topic.
The Judicial Registrar had the parties sworn and affirmed respectively, and then proceeded to hear their submissions and the answers to the questions posed by the Judicial Registrar, as evidence on oath.
The Judicial Registrar had in fact permitted the applicant to file an amended statement of claim, it seems on the day before or the day of the trial, but no point was taken in respect of that by the respondent. The respondent had not filed a defence, which in the circumstances was not surprising. The nature of the respondent's defence was ascertained by the Judicial Registrar having regard to the documents available and the evidence of the respondent.
No point was taken on the application for review, by counsel for the applicant, in relation to the fact that there was no filed defence.
The Judicial Registrar, in his decision, set out a chronology of events, including that on 15 October 2020 a booking agent, Move Me Australia Pty Ltd (‘Move Me’) provided a quote to the applicant for the transport of her goods, presumably at her request. The total quote for the task was $1,105. Later that day Move Me sent a copy of its terms and conditions to the applicant.
The Judicial Registrar went on to say that by the afternoon of 16 October 2020 the applicant had accepted the quote provided by Move Me. She eventually paid a deposit of $205. The Judicial Registrar found that the Terms and Conditions emailed to the applicant on 15 October 2020 were incorporated as terms of the contract.
He found, contrary to the submissions of the applicant, that there were not two separate contracts; but rather Move Me had entered into the contract with the applicant as the respondent's agent; or alternatively Move Me engaged the respondent as a subcontractor.
On 17 October 2020 Move Me emailed an updated invoice to the applicant in the aforementioned amount. On 19 October 2020 the applicant emailed Move Me seeking a revised invoice, and advice about the approximate pickup time on 20 October. The applicant advised Move Me that the goods could not be collected from Dundas Valley between 12.30 pm and 1.30 pm (‘the block-out window’).
On the morning of 20 October 2020 the respondent telephoned the applicant at some time between 7.30 am and 8.00 am AEDT. The respondent told the applicant that he wanted to collect the goods from Dundas Valley first because he would be driving near there, and if he travelled to the storage facility in Homebush first he would then have to retrace his steps to Dundas Valley, which he wanted to avoid, given the amount of extra time that that would occupy, particularly having regard to the traffic conditions in Sydney.
The Judicial Registrar noted that that was consistent with the contract, as Homebush was described as the second pickup location in the quote.
The applicant at that time purported to insist that the respondent go to Homebush first because the goods at Homebush were her priority, and she only wanted the goods from Dundas Valley if they would fit within the space she had booked.
The applicant contended that she had reduced the booking down to seven cubic meters of space, and that if her goods exceeded that volume, she had wanted the respondent to call her from Dundas Valley to discuss which items should be taken and which should be left behind. The applicant conceded that the respondent was not obliged to make such a call; rather, that was her request or preference. The applicant did not give evidence to suggest she told the respondent anything about the block-out window for Dundas Valley during the first discussion.
I note the narrative set out by the Judicial Registrar whereby he recorded that despite the extra travel time for the respondent, and the order of pickup locations in the contract, the respondent complied with the applicant's request to attend at Homebush first.
The respondent said he went to the Homebush storage facility and was required to wait there until it opened at about 8.30 or 9.00 am. The applicant asserted that the respondent must have gone to Homebush later, because he went straight from Homebush to Dundas Valley and did not arrive at Dundas Valley until 12.20 pm.
While the respondent was at Homebush, the applicant called him. Again, during that telephone call the respondent said that the applicant told him that her colleague at Dundas Valley would not be home for a period of one hour during the day. There was a dispute about whether the applicant told the respondent that that window commenced at 10.00 am, 11.00 am, or 12.30 pm. The respondent contended that the block-out window was 12.30 to 1.30 pm. He said that he told the applicant that he was currently loading her goods at Homebush and would get to Dundas Valley as soon as he could.
After collecting the applicant's goods from Homebush, the respondent travelled to Dundas Valley in his truck with two other persons who were assisting him in the loading operation. The Judicial Registrar noted that the respondent was an experienced removalist. The Judicial Registrar specifically accepted the respondent's evidence that he and his colleagues would have been able to remove the nominated goods from Dundas Valley within five minutes, given the comparatively small volume of goods there, compared to the goods at Homebush.
It was common ground that the respondent arrived at Dundas Valley at least five minutes prior to the 12.30 pm deadline, which, on the applicant's case, was the time at which the respondent would not be able to access the property. The applicant in fact asserted in evidence that the respondent had arrived at 12.20 pm; that is, ten minutes prior to the one hour block-out window.
The respondent was driving a reasonably large van, described as being nine meters long. He parked in front of the Dundas Valley property on the opposite side of the street. He observed a woman walking out of the house at Dundas Valley. As he and his fellow workers alighted from the truck, he observed the woman reverse her vehicle out of the Dundas Valley property and drive off. The respondent called the applicant to inform her of that, and said that he could not collect the goods.
The Judicial Registrar accepted the respondent's evidence that the applicant had asked him to return after 5.00 pm, when the woman at the Dundas Valley property would be home.
I pause to observe that that is to be contrasted with the applicant's assertion that, even on her own case, the block-out period was 12.30 pm to 1.30 pm, and therefore the respondent should have been able to return at 1.30 pm, rather than after 5.00 pm.
The respondent said that that would not be possible because of other commitments. He departed Dundas Valley without collecting any of the applicant’s goods from there.
Later that afternoon, the applicant telephoned Move Me and said she wanted to cancel the job. I bear in mind that that was after the respondent had, contrary to his preferred course, travelled to Homebush, collected the goods there, and then travelled to Dundas Valley, only to find that he was deprived of access to the property at Dundas Valley.
On 21 October 2020 Move Me provided a revised tax invoice to the applicant, recording that the cost had been reduced from $1,105 to $860. Move Me acknowledged the payment of a deposit of $205, making the balance payable $655. The applicant replied to the Move Me email, saying that she would not accept a partial pickup of her goods.
The Judicial Registrar accepted the evidence of the respondent that he had called the applicant to inform her that he would be delivering the goods to her property in Adelaide the following morning. She did not answer his call.
On 22 October 2020 between 8.00 am and 11.00 am the respondent arrived at the applicant's property in Adelaide with the goods the respondent had collected from Homebush. The applicant refused to pay the respondent the $655 outstanding. The respondent offered to return later that day to deliver her property, if that would be more convenient. The applicant rejected that proposal.
As I observed in the brief overview, the respondent ultimately delivered the goods to a commercial storage facility in Adelaide as the goods could not be left in his truck as that would have obviously rendered the truck unusable, or unusable to some extent.
The Judicial Registrar found that the respondent was an impressive witness. He noted that while some of the respondent's evidence was inconsistent with documents dating from the time, or with some other aspects of his evidence, that was not surprising, given that the events relating to the $1,105 contract had occurred almost four years earlier.
The Judicial Registrar set out the relevant terms of the contract. He concluded that it was unclear from the applicant's claim as to how it was that she alleged that the respondent had breached the contract. He said that using his best endeavours to understand the applicant’s complaint, he rejected the suggestion that it was a term of the contract that the respondent was obliged to provide a pickup time by the close of business the day prior to the collection of the goods; rejected the applicant's assertion that the contract was breached because the respondent refused to deliver the goods unless he was paid; and rejected her complaint that the goods were delivered too quickly to her property in Adelaide and without sufficient notice.
The Judicial Registrar accepted that the respondent had attempted to telephone the applicant the day prior, to advise her of the delivery, but the applicant did not answer. The Judicial Registrar accepted that the delivery of the goods two days after they were collected in Sydney was in accordance with the approximate schedule included in the contract.
The Judicial Registrar in fact found that the applicant had breached the contract by not paying the respondent as soon as the goods were collected from Homebush, and after the applicant failed to make the goods available for collection at Dundas Valley. The Judicial Registrar noted that the contract expressly stated that final payment was due upon collection of the goods, not when delivery was performed.
The Judicial Registrar noted, to the extent that it may be relevant, that the respondent was ready, willing, and able to perform his obligations pursuant to the contract at all times, and that it was the applicant that prevented the respondent from performing his obligations when she had failed to make the goods available for collection at Dundas Valley, which was her responsibility.
It is to be noted that the applicant instituted proceedings in the New South Wales Civil Appeals Tribunal (‘NCAT’). The respondent did not appear in answer to those proceedings. In any event, in July 2021 the proceedings were dismissed by that tribunal on the basis that it lacked jurisdiction to determine the dispute.
The respondent gave evidence below that apart from the notification regarding the NCAT action, he did not receive any contact from the applicant about the matter, and did not receive any requests from her seeking possession of her goods. He said he had attempted to contact her after the institution of the NCAT action, but without success.
The applicant asserted in the hearing below, that she could provide a screenshot of her mobile telephone which would show that she made attempts to contact the respondent about her goods that were in storage, but it seems she did not do so. She did not suggest that she had sent any emails to the respondent inquiring about the goods, after the failed NCAT action.
The Judicial Registrar noted that at a directions hearing on 18 June 2024 the applicant had been ordered to file a tender book containing any documents she wished to rely upon at trial, but did she not comply with that order.
The Judicial Registrar said that he allowed the applicant to email several documents to court during the course of the trial, which he received as exhibits, and had regard to. He said that he did not consider it appropriate to give the applicant a further opportunity to provide further documents to the court which would have resulted in the trial being extended to a second day because to do so would be inconsistent with the objects of the rules of minor civil actions which include the just, efficient, timely, and cost-effective resolution or determination of the issues in a proceeding.
The Judicial Registrar said that given the lack of any contemporaneous documents in support of the applicant's position, he preferred the respondent's evidence that the respondent did not receive any request from the applicant to take possession of her goods before they were disposed of, and that the respondent attempted to contact the applicant without success, before he disposed of the goods.
The Judicial Registrar went on to find that if the respondent did breach the Act, the applicant had not articulated how any such alleged breach would make the respondent liable for damages. He went on to find that as the goods were disposed of rather than being sold, even if the respondent did breach the Act, he was not persuaded that the Act created any right for the applicant to recover any loss pursuant to the Act.
As counsel who appeared for the applicant on this application for review submitted, it was not suggested on behalf of the applicant that applicant’s loss could be recovered pursuant to the Act; rather a breach of the Act founded an entitlement to damages in conversion.
The Judicial Registrar did have regard to the fact that the respondent would have been able to set off the outstanding transport fee which had never been paid, and storage fees in the order of $2,600.
The Judicial Registrar concluded that the assertions that the respondent had breached the contract, and that the respondent had some liability as a result of a breach of the Act, had not been made out and dismissed the claim.
There was no counterclaim and therefore no claim for payment of the outstanding sum of $655 in respect of the delivery, nor for recovery of the cost of the storage of the applicant's goods.
Application for Review
The decision of the Judicial Registrar was an ex-tempore decision delivered on 12 September 2024. The applicant, being the party dissatisfied with the judgment, made an application for this Court to review the matter pursuant to s 38(6) of the Magistrates Court Act 1991.
Such review is governed by s 38(7) of the Act which relevantly provides that:
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c) the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
…
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
The applicant sought leave to appear remotely at the hearing, and produced an affidavit setting out details relating to her health. I granted that application. She brought an application seeking leave to be represented by counsel. Over the objection of the respondent, having regard to the matters that had been put to me, I granted that application.
Here, there was no application for me to re-hear the evidence, and no decision taken to re-hear the evidence. I am obliged to accept the advantage enjoyed by the Judicial Registrar in a situation where the decision was based, in part at least, upon his impression as to the credibility of the respective parties. In particular, a finding of fact by the Judicial Registrar based on the credibility of a witness may only be set aside on appeal where the decision is either manifestly wrong by reason of error indicated by incontrovertible facts, or uncontested testimony, or was glaringly improbable, or is contrary to compelling inferences in the case.[1]
[1] See for example DeVries v Australian National Railways Commissioner (1993) 177 CLR 472.
However, as was observed in Fox v Percy,[2] citing with approval the decision in Warren v Coombes:[3]
… An appellate court is in as good a position as a trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
[2] Fox v Percy (2003) 214 CLR 118.
[3] Warren v Coombes (1979) 142 CLR 531.
Any inference drawn or relied upon must reasonably arise from proven facts or circumstances, see TNT Management Pty Ltd v Brooks.[4]
[4] TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.

As Tilmouth DCJ observed in Plos v Mroz:[5]
It is opportune to acknowledge that magistrates are called upon to determine difficult factual issues often in trying circumstances and under considerable time pressures. Magistrates are required to conduct proceedings in minor civil claims by means of an inquiry rather than adversarial contest between the parties and they are neither bound by the rules of evidence nor technicalities and legal forms. Nevertheless the fundamentals of a fair trial are not displaced for even though a tribunal may be bound to inform itself on any matter as it thinks appropriate, as is the case in respect of the minor civil jurisdiction of the Magistrates Court, the court remains subject to the requirements of procedural fairness. These principles include the opportunity to be confronted with material upon which a party is proposed to be contradicted and the right to be given an opportunity to explain any matter upon which the court might make adverse findings.
[5] Plos v Mroz (2015) LSJS 276.
Tilmouth DCJ went on to say:
The right of review against such decisions is confirmed by s 38(6) of the Magistrates Court Act. Section 38(7)(d)(i and ii), thereof furnishes the District Court with powers of affirmation and recission as well as the capacity to substitute a judgment it considers appropriate. There is no power of remission except in respect of reviews against a fault or summary judgments. These rights of review are not governed by the administrative and disciplinary sections contained in Part 6, sub-division 1-3 of the District Court Act because of s 42(b)(1) thereof, so that the application for review therefore stands to be determined according to the principles summarised by Blue J in Harradine v The District Court of South Australia.[6]
[6] Harradine v The District Court of South Australia [2012] SASC 96.
The effect of these principles, to paraphrase, is that a review is neither in the nature of an appeal stricto sensu, nor is it necessarily a hearing de novo by way of rehearing. Rather the District Court may inform itself as it thinks fit, and by having regard to the evidence adduced below and the magistrate’s finding of fact, may act according to the substantial merits of the case, and may rehear evidence unconfined by the principles applicable to the introduction of fresh evidence.
Furthermore, should the court form the view that a magistrate made an error vitiating the judgment, or had not made findings of fact necessary to determine the matter, it becomes necessary to rehear the evidence pertaining to the flawed findings, given it does not enjoy the power to remit for rehearing.
The Present Application
The application for review was, it seems, filed in the absence of a copy of the written judgment below. The application, by its grounds, criticised the Judicial Registrar in effect for accepting the respondent as a witness of truth when the respondent's evidence was contradicted by written evidence he had produced. The applicant, in the grounds, also referred to the lack of information from the respondent as to where and how the goods were stored, and where and how they were disposed of.
There seems to be a further criticism, contained in the grounds, that the respondent did not attend the NCAT hearings. It is difficult to understand that being even mentioned in the grounds for review, given that it is common ground that the NCAT proceedings were dismissed for want of jurisdiction.
The applicant requested an opportunity to submit further evidence to contradict the evidence of the respondent to suggest that the items were not sold or were thrown out, but did not make any such application at the review hearing.
The grounds as filed by the applicant, are discursive. I will take as the basis for the application, the document headed 'Written Case on Minor Civil Review', which was prepared by counsel for the applicant. I have regard to the contents of that document.
Consideration
Ultimately in the absence of an application to rehear any of the evidence, I consider that the findings of the Judicial Registrar as to credibility, and as to the course of events, should stand. That of course if not the end of the matter.
Counsel for the applicant quite properly restricted his application to the grounds that there was a breach of the contract, and that the respondent as bailee of the applicant's goods was obliged to act in accordance with the requirements of the Act.
The applicant, through her counsel, made the submission that the Judicial Registrar had erroneously found that the respondent had, after being unable to deliver the goods upon the refusal of the applicant to pay the delivery fee, delivered the goods to a commercial storage facility in accordance with the clause in the contract providing for that course of action. The submission was made against the respondent that there was no evidence that that had occurred.
In fact during the course of the hearing, the respondent produced an account for storage costs of $2,530 rendered by Borgas Removals and Storage, the proprietor of the premises where the goods had been stored. That document was received into evidence at the review hearing, without objection. That was an answer to the applicant’s criticism referred to above.
I do not consider, on the evidence before the Judicial Registrar, and on the Judicial Registrar’s findings as to the course of events, and having regard to the submission made before me, that any claim in breach of contract has been made out.
I consider that the view of the Judicial Registrar, having accepted the evidence of the respondent, albeit subject to the qualifications he described, prevails. That is, that the respondent had attended to collect the goods in accordance with the request of the applicant, and at his own inconvenience; and that he had attended to collect the goods at the Dundas Valley premises in time to quickly load the remaining goods from those premises onto the truck, but was prevented from doing so, because the occupant of the premises had left prior to the time nominated by the applicant.
The Judicial Registrar found that the applicant had requested the respondent to return to Dundas Valley after 5.00 pm. That, I accept, in the course of a busy delivery operation, on clearly what must have been narrow margins having regard to the relatively modest amount of the account, was not practical.
I find that the applicant never paid the invoice amount, and refused to accept delivery of the goods. I find that the applicant has not established a breach of contract by the respondent, nor established that the Judicial Registrar incorrectly decided that issue.
I turn to the operation of the Act and the claim for damages in conversion. The applicant asserted, in written submissions supplemented by oral submissions, that the respondent was in breach of requirements imposed upon him by the Act.
The Act provides by s 6, that:
(1)Subject to this section, a bailee of unclaimed goods may, after the expiration of three months from the relevant date—
(a)     sell the goods; or
(b)     if the value of the goods would be insufficient to defray the costs of sale—otherwise dispose of the goods.
(2)The sale or disposal of goods under subsection (1) may be authorised, on the application of the bailee, by the Court and, if the value of the goods lies within scale 3, the goods must not be sold or disposed of without such an authorisation.
(3)     Where a bailee applies for an authorisation under subsection (2)—
(a)     notice of the application must be given to the Commissioner of Police; and
(b)     such notice (if any) as the Court thinks appropriate must be given to the bailor and any other person who, in the opinion of the Court, may have an interest in the goods.
(4)Where the Court grants an authorisation under subsection (2), it may give such directions in relation to the sale or disposal of the goods as it thinks fit.
(5)If the value of unclaimed goods lies within scale 1 or 2 the goods may be sold or disposed of under subsection (1) without any authorisation by the Court but if goods whose value lies within scale 2 are to be sold without such an authorisation—
(a)     the goods must be sold by public auction; and
(b)     notice in the prescribed form of the time and place of the proposed sale must be given at least one month before the date of the proposed sale—
(i)    to the Commissioner of Police; and
(ii)     to the bailor.
The Regulations provide the value thresholds for the different scales. Scale 1 relates to goods under a value of $500. Scale 2 relates to goods under a value of $2,000. Scale 3 relates to goods of a value of more than $2,000.
The applicant contended that the value of the applicant’s goods was such that the goods fell within scale 3 which required that the respondent obtain the authorisation of a court before disposing of the goods.
As can be seen, the requirements on a bailee are relatively onerous. The provision of scales of goods are designed to obviate the need to comply with the more onerous requirements, in relation to low value goods. I note in passing that those values were set at the time of the amendment of the Act in 2013, now some 12 years ago.
That raises the question as to what was the value of the goods. Counsel for the applicant made the submission that the applicant had provided information about the replacement cost of the goods. That amount appears, as part of the application for review, as $8,016.33. I am not in a position to assess whether that is in fact the replacement value of the goods, but in any event, do not consider that the replacement value of the goods is the appropriate measure for the purpose of determining which scale the goods fall within. I consider that the only applicable scale must be the market value of the goods.
The value of the goods has been variously described. As I have said, the replacement value was asserted to be something over $8,000. In the applicant's original statement of claim the goods were described as having a total value estimated at $5,000-$5,500. However, in the communication from the applicant dated 4 October 2022, when the applicant was apparently inquiring about what happened to the furniture, she said: 'I estimate the value of the goods to be around $3,000.'
The respondent's evidence was that the goods were second-hand goods, which had been subjected to wear and tear, and were effectively of no marketable value.[7] The respondent gave evidence below as to his assessment of the value of the goods, and of the fact that he had disposed of them rather than endeavouring to sell them. That evidence was accepted by the Judicial Registrar. I see no reason to depart from that finding.
[7] It is perhaps notorious that goods purchased at retail prices, are, when second-hand and particularly when subject to wear and tear, effectively unsaleable at any reasonable proportion of their purchase price.
I am not satisfied that the goods were of a value more than $2,000. Accordingly I am not satisfied that the goods fell within scale 3. I accept, as did the Judicial Registrar that the goods were abandoned by the applicant, and disposed of rather than sold by the respondent. Accordingly the remaining provisions of s 6 do not apply to the disposal of the goods. The consequence is that there is no valid claim for damages in conversion.
Conclusion
For the reasons articulated, the application for review, insofar as it relates to a breach of contract, and insofar as it relates to any cause of action arising as a consequence of a failure to comply with the Act, fails and the application is dismissed.
Further orders
Having heard from Mr Brookes as to his application for legal costs, I have declined to award legal costs. Having heard his application to award him the cost of storage of the furniture items, I have taken the view that the cost of storage and the cost of the unpaid transport could only properly be the subject of proceedings brought by Mr Brookes, there having been no cross claim instituted in the original proceedings.