DC Payments Pty Ltd Australasia Pty Ltd v Wragg IGA Pty Ltd - [2016] VMC 21

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE E11706657

BETWEEN:

DC PAYMENTS PTY LTD AUSTRALASIA PTY LTD

A.C.N. 097 550 519 Plaintiff

-and-

WRAGG IGA PTY LTD

A.C.N. 152 528 928 Defendant

MAGISTRATE: GINNANE

DATE OF DECISION: 21 OCTOBER 2016

WHERE HEARD: MELBOURNE

CASE MAY BE CITED AS: DC PAYMENTS PTY LTD AUSTRALASIA PTY LTD v WRAGG IGA PTY LTD
MEDIUM NEUTRAL CITATION: [2016] VMC021

APPEARANCES COUNSEL SOLICITORS

For the Plaintiff Mr Mukherji In House Solicitor

For the Defendant Mr Geason (Solicitor) Butler, McIntyre & Butler

Catchwords: License Agreement for placement of ATM at supermarket in Tasmania for 5 year term – whether plaintiff supplier in breach of express term – whether notice of termination of agreement given by defendant – whether ATM suffered Equipment Failure – attempt by defendant to imply term not pleaded – lack of evidence by defendant – Jones v Dunkel (1959) 101 CLR 298 - no dispute over calculation of amount of liquidated damages – order in favour of plaintiff

REASONS FOR DECISION

HIS HONOUR

This case brings into focus the sometimes blunt instrument that is the law when recourse is had to it in solving commercial disputes for the provision of services and where no statutory consumer relief is available. The plaintiff is a company in the business of supplying services by way of the placement and maintenance to merchants of automatic teller machines (ATM).
The defendant operated the business of an IGA supermarket trading as Bardenhagens Supermarket in a small rural town in Tasmania.
The defendant took over the business of the supermarket as a result of a commercial purchase. The ATM was in place at the supermarket at the time of the sale.
On 16 August 2011 the plaintiff and defendant entered into an ATM Site Location and Placement Agreement (“the Agreement”). The Agreement was expressed to be for an “Initial Period” of 5 years commence on 26 September 2011 and was to operate for a period of 5 years (the term)[1].

[1] Ex P1

The Agreement consisted of the grant of a licence by the defendant to the plaintiff to install and operate the ATM at the defendant’s premises on certain terms and condition.
The Agreement contained a number of written terms and conditions. It will be necessary to refer to them in some detail later in my reasons for decision. At its simplest, however, the terms included an arrangement that arising from for each use of the ATM a fee was applied to the user from which the plaintiff and defendant received a specified share based on a formula contained in the agreement.
The plaintiff’s claim is based on an allegation that the defendant breached the Agreement by failing to keep the ATM ‘cashed and accessible for use’ contrary to clause 12.2 and 12.7 of the Agreement. The clauses state:

12.2 the Merchant must use its best endeavours to ensure that the Equipment remains available and accessible for use by members of the public during the Merchants normal trading hours during the Term.
…
12.7 If the Merchant has selected the “Self-Cashing Option” by marking the appropriate box in the Application Form, the Merchant:
(a) must within 3 Business Days after installation of the Equipment, fill the Equipment and keep the Equipment filled for the remainder of the Term, with:
(i)adequate amounts of cash; and
(ii)in appropriate denominations

in accordance with any instructions from ATMs from time to time
(iii);

…..
(d) is responsible for ensuring that the cash is correctly placed in the Equipment; and
…..

The defendant’s defence alleges a fundamental breach of the Agreement by the supply to it by the plaintiff of an ATM that was repeatedly unreliable in its operation by failing to dispense cash when accessed by users. I observe that the ATM was a stand-alone facility of a type whereby users incur a fee for use. The ATM was available for use to all persons within the defendant’s premises and not dependent, for example, on purchases made at the defendant supermarket.
On 18 June 2013 the defendant sent an email to the plaintiff purporting to terminate the Agreement[2]. At the date of the purported termination, the Agreement still had 36 months to run.

[2] In the defendant’s further and better particulars dated 8 April 2015 stated that the letter on 18 June did not terminate the Agreement and hence does not amount to a breach of the same, claims that it had grounds to terminate the Agreement because the ATM supplied was not in working order

The plaintiff responded to the request for early termination of the Agreement and refused the defendant’s request. The refusal was expressed in an email dated 19 June 2013. It relied on clause 2.2 (b) of the Agreement that sates:

This Agreement commences when signed by ATMS and continues until the end of Initial Period…unless terminated in accordance with clause 18

Clause 18 of the Agreement is headed “DEFAULT AND TERMINATION” and states:

18.1 The Merchant may terminate the Agreement on 28 days prior written notice if ATMs breaches and ATMs essential Term of this Agreement, and if capable of remedy, the breach is not remedied within that notice period.
18.2 ATMs made any time immediately terminate this Agreement without cause by giving written notice to the Merchant.
18.3 If ATMs elects to terminate this Agreement pursuant to clause 18.2, ATMs may retain all amounts already paid by the Merchant and claim all amounts which are in arrears at the date of termination.
18.4 Notwithstanding any other provision of this Agreement, if the Merchant commits a breach of this Agreement and the breach is either not capable of remedy, or if capable of remedy, the breach is not remedied within 14 days of receiving notice from ATMs, ATMs may elect to terminate this Agreement by notice in writing to the Merchant, in which case, the Merchant must immediately on demand pay to ATMs…. [A formula for calculation then follows but not copied].

On 26 August 2013 the plaintiff sent a notice in writing to the defendant notifying it that it was in breach of the obligations under the agreement to keep the ATM accessible and cashed. This email amounted to a default notice as was required to be furnished by the plaintiff under the terms of the Agreement[3].

[3] Ex P2

The defendant did not comply with the plaintiff’s default notice and by further letter dated 24 September 2013[4] the plaintiff terminated the agreement by the provision to the defendant of a termination notice. The 24 September 2013 letter from the plaintiff furthermore responded to a number of matters that had been raised by the defendant. It referred to a letter dated 2 September 2013 signed by George Spiliopoulos and an attached scanned letter signed by Mr Wragg dated 2 July 2013. The plaintiff’s letter denied the receipt of Mr Wragg’s letter dated 2 July 2013. However, with this caveat, the plaintiff responded in the following terms:

1.    We have no record of a change of bank account request being received by either your account manager or our finance department[5].
2.    You were advised on June 19, 2013 by email from your account manager, Chris Egan-Lee that we were under no obligation to replace the ATM and that we did not agree to do so.
3.    Our fault report analysis evidences that we have at all times complied with our service and maintenance obligations pursuant to the Agreement.
4.    Our records show that our obligations pursuant to clause 10.1 have at all times been complied with[6].
We accordingly deny that we have breached our obligations under the Agreement and do not accept your request to terminate the Agreement and all terms & conditions of the Agreement remain in full force and effect.
[4] Ex P3
[5] The matter raised concerning a change in bank account request was not explained or pursued in evidence
[6] Clause 10.1 appears in that part of the Agreement headed “ATM’S RIGHTS AND RESPONSIBILITIES” and states: “ATMS must provide data processing services to process all transactions processed by the Equipment. ATMS may in its discretion add, delete or change the network and banking affiliations”.

The letter went on to give notice of termination of the Agreement effective 24 September 2013 and claimed payment of liquidated damages of $38,947.50. The claim for liquidated damages was particularised in accordance with clause 18.4 (c) of the Agreement and consisted of: average monthly revenue generated by the direct charge for the 12 months preceding the termination notice of $1,747.50 less average fees payable to the defendant of $305 multiplied by the balance of the term of the agreement being 36 months from which a discount of 25% was applied resulting in the total estimated revenue to the plaintiff of $38,947.50. The plaintiff made a demand for the payment dated 18 November 2013. The demand remained unsatisfied.
Much of the plaintiff’s claim is admitted by the defendant by way of its Amended Notice of Defence. The Agreement and the terms I have recited above are admitted as is the formula used and the amount calculated for the sum by way of the plaintiff’s claim for liquidated damages.
However, the defendant alleges that the plaintiff has breached the Agreement. The fulcrum of the defendant’s notice of Amended Notice of Defence is that it is not obliged to pay the plaintiff’s claim for liquidated damages because the plaintiff supplied it with a defective ATM being a machine that was not in working order. Such further expression of this allegation is to be found in the provision of Further and Better Particulars by the defendant pursuant to a request by the plaintiff to which the defendant said: (Particulars 12 c ):

“The requirements of the agreement are that the Plaintiff maintain and service the ATM. The Plaintiff failed to do so. Therefore the failure of customers to be able to access the ATM services had no connection to decisions or actions of the Defendant. The Defendant was not in breach of the Agreement for being supplied with a faulty ATM.”

The plaintiff was represented by Mr Mukherji of counsel and the defendant by Mr Geason solicitor.
The plaintiff adduced evidence from the following witness evidence:

David Vandergriff

David Vandergriff is the General Manager, Sales/Client Services for the plaintiff. He said he had been employed with the plaintiff for 9 ½ years. He said plaintiff was in the business of supplying ATM’s to the convenience store market.
Mr Vandergriff was directed to and identified various clauses of the Supply Agreement including the termination clauses available to both parties and the formula for the calculation of liquidated damages in the event the same arises. Mr Vandergriff described the contract as “a standard form agreement”. It is for a period of 5 years commencing on 26 September 2011. He testified about the methodology of apportionment between the plaintiff and the merchant of the surcharge on transactions arising from the ATM’s use.
Mr Vandergriff was cross-examined. He was questioned about the extent of his direct knowledge of complaints made by the defendant about the use of the ATM. He said he had no direct involvement in the matter of the complaints. He said he was unaware of the complaints at the times they were made but was made aware of them as a result of his review of his case and in preparation for the hearing of the proceeding.
Mr Vandergriff said that Mr Chris Egan-Lee was the Account Manager allocated to the defendant. He was aware that Mr Egan-Lee had by an email dated 1 June 2012[7] addressed to the ‘Support Level’ desk within the plaintiff referred to a reported increase in the rejection rate for the $50 note being experienced by the defendant and to Mr Wragg’s son having been telephoned in an effort to isolate the faulty part in the ATM.

[7] Ex D1

Mr Vandergriff also acknowledged an email from Mr Egan-Lee dated 14 August 2012 that referred to the continued prevalence of a high reject rate despite the cassette from which the notes are filled and then dispensed having been replaced. Mr Egan-Lee’s email questioned if a technician could be dispatched to replace the dispenser “if we can now isolate that as being the cause of the fault” and furthermore whilst on site he requested the keypad of the ATM be updated as the numbers had worn off and for it the external fascia and card reader to be cleaned. Mr Egan-Lee’s email described the arrangement with the defendant as “quite profitable”.
An email dated 27 November 2013[8] from Mr Chris Tyson “Second Level Support” within the plaintiff to Customer Relations recorded that Mr Wragg “would like a call to discuss getting a new ATM”.

[8] Ex D3

Emails between the plaintiff and the defendant. Correspondences track a variety of issues and problems the defendant encountered in relation to the reliable operation of the ATM. One email dated 31 January 2013[9] sent by Mr Egan-Lee to “Second Level Support” and “Customer Relations” directed that a new surge protector be supplied to the defendant as “we believe it may be contributing to the fault. Please also note: The machine is sharing the circuit with a fridge”. If this was the case then I note it would contrary to the defendant’s obligation set out in the Agreement[10].

[9] Ex D4

[10] Clause 3.4

The history of emails disclosed a variety of issues including the machine having displayed a blank screen (email dated 17 April 2013)[11]. An email dated 22 April 2013[12] details further concerns raised by Mr Wragg that the machine was not powering up and only came on after turning it on and off a number of times. The email conveyed that Mr Wragg was extremely upset with the level of service he had been receiving.

[11] Ex D5

[12] Ex D6

It was said that Mr Wragg would testify that the quality of the technical advice he received from the plaintiff was limited and in some instances amounted to nothing more than being told to reboot the ATM, that is to say, to turn it off, wait a period of time and turn it back on.
An email dated 24 April 2013[13] identified the involvement of Mr Rod Hill the Tasmania Sales Agent of the plaintiff and he noted that it was “probably the 20^th time he had been in contact” in regard to problems with the ATM. He wrote:

“Robert Wragg the owner of Bardenhagens has been on the phone to me again, this is probably the 20^th time since Christmas, why this is ATM continually going out of service and why is it so hard to be in contact with him over this ongoing issue.
People are not answering phones, I am aware different alterations have done to the machine, but the problem still exists, its time somebody took responsibility to see this all the way through to an ATM performing to standards in the agreement, its affecting HIS business it is the only ATM in the town and his staff are copping insults due to ongoing problems”.
My commission does not extend to complaints 5 years on.”
[13] Ex D7

Responses gleaned from within the tranche of emails comprising Exhibit D7 included, from Mr Egan-Lee, that “Robert is a gentleman but is quite persistent in having issue resolved, as he should be” and, in a response to Mr Egan-Lee, Michelle Mahony of the plaintiff, wrote:

“Spoke to Robert as requested and currently requested a journal analysis from CCC before going any further to understand nature of his faults and action plan to fix”.

Mr Vandergriff was asked about the provenance of the document produced by the plaintiff and called “Journal Analysis”. It was described by him as a report on the various functional operations of the machine. However, he said his knowledge was very limited and he could not speak to the meaning of the technical data associated with the journal.
A further chain of emails[14] was introduced into evidence commencing on 29 July 2013 and these record communications passing between Mr Egan-Lee and Marianna Shiffman, a technical support employee of the plaintiff. The email reveals that the defendant was very unhappy and was contemplating having the ATM removed. Importantly, however, the emails also assert that over a 30 day period the “uptime was 99.93%” and as well that “this month they had: 303 error called in this morning and resolved with a reboot with the merchant over the phone. 569 error called in on 18^th also resolved with a reboot with the merchant over the phone”.

[14] Ex D8

Mr Vandergriff testified about the volume of transactions conducted on the ATM machine on a daily basis according to the “ATM Daily Transaction Report[15]” for the period 16 August 2011 to 1 August 2013. Mr Vandergriff did not concede that on dates that “nil” transactions were recorded this was because of a fault in the machine. He said, for example, that it could have been due to the ATM being empty of cash.

[15] Ex D9

Mr Vandergriff was asked to comment on the sufficiency of the support offered to the defendant by the plaintiff Helpdesk. Mr Vandergriff agreed that if the extent of advice offered to the defendant had been, “open the machine but don’t touch certain parts because you might get electrocuted” or “sorry that machine is too old and I know nothing about it” it would be unsatisfactory. However, he said a recommendation to reboot the ATM was very common and workable response to problems associated with the operations of an ATM encountered when failing to power up. He accepted that such advice probably would not represent “technical advice” by Helpdesk staff.
In re-examination Mr Vandergriff was asked about the role of Mr Egan-Lee. He said he was an employee of the plaintiff and the account manager allocated to the defendant. He knew no more than this but he “imagined” the extent of his involvement would have been confined to relaying client complaints to the appropriate are of the plaintiff but not to have extended to technical issues such as the cause of complaints and he expressed a similar belief in relation to Mr Hill.

Matthew Frankenberg

Matthew Frankenberg is employed by the plaintiff within its ATM Systems Division. Prior to taking up his current position he was employed for 8 years across other divisions within the plaintiff including its Call Centre and in Dispatch He said his experience was is in “e-commerce” and Desktop Support. He said that in preparation for the court proceeding he familiarised himself with the documents comprising the Fault Report[16] and Transaction Summary.

[16] Ex P4

Mr Frankenberg was asked questions about the ATM in place at the defendant’s supermarket site. He described it as a “self-cashing machine,” meaning the merchant is provided access to the machine’s safe via a code to enable it to be filled by the merchant with various denominations of notes.
Mr Frankenberg accepted that the provision of “Terminal Training” is important to understanding the operations of an ATM and that the training could be arranged either on the installation of the machine or through over the phone support. He said that the areas covered by training included instruction on powering up the machine, opening the safe and combination use, the use of a key to opening the facia door to the ATM, the manual removal of cassettes, using management functions of the machine, the loading of cash, the inputting of values and the loading of and changing of receipt roles.
Mr Frankenberg said that “cash jams” occur from time to time. He identified a number of reasons other than operational failure that cash might not be dispensed, for example, a rubber band being left on a wad of cash or some other obstruction or that the machine is left empty. He said that if a problem cannot be resolved by the merchant on the spot, then support can be obtained via a toll-free phone number manned by a dedicated Helpdesk. He said that in most circumstances, requests made for support would be logged on the “Fault Report Log”.
Mr Frankenberg was asked about the contents of the Fault Report Log. An understanding of it, requires some explanation. The document contains a record of various elements relating to the operation of the machine for the period of 16 August 2011 to 30 November 2013 (a period of 837 days). The document classified incidents into levels of severity ranked from 1 to 3 and against each is recorded the number of such incidents. It identified that over this period there were 8 incidents ranked with a severity of 1; 3 incidents ranked with a severity of 2 and 1 incident ranked with a severity of 3. “Severity 2” could embrace issues such as a receipt printer not working and hence being unable to display the balance after a transaction. As well the Fault Report Log reveals that the combined incidents resulted in downtime for the ATM calculated across the aforementioned time frame at 1.25%.

Mr Frankenberg said that based on his experience there was nothing unusual about the volume of complaints in relation to this ATM or site. As to his ability to be able to apportion responsibility for problems encountered with the ATM as between the merchant and the machine, Mr Frankenberg said he could not be certain where the responsibility should lie and that certain errors such as a 303 error message were, in all probability, a fault occasioned by the merchant operator. Mr Frankenberg in further addressing the description of “Closed Faults” said this was an expression afforded an incident after it was logged but subsequently resolved.
The Fault Report was not straightforward to reconcile and this was the case as far the assertion made about the amount of downtime. I heard evidence that the resolution of a reported fault required it to be manually closed off but there were doubts raised by the defendant in cross-examination of Mr Frankenberg that the document relied on accurately or exhaustively recorded the downtime experienced by the ATM. However, as far as objective data is concerned, I am satisfied that it amounted to the best evidence before the Court. For example on Friday 9 August 2013 it records an Incident Description described as “Zero Trans, no trans since 1/8” which Mr Frankenberg said was indicative that the machine was not cashed which is a matter outside the responsibility of the plaintiff and not Equipment Failure.
On Monday 29 July 2013, an incident was logged via phone call from Mr Wragg and that call triggered the report of incident “severity 1[17]”. The report records that the “merchant” called with a 303 displayed error on the ATM display identifying a rejected cassette and it as well recorded that there had been a problem with a door to allow the movement of cash from the dispenser and the problem was resolved by a rebooting of the ATM and was back in service (“bis”) with a resolution time of 8 minutes. Again this narrative does not readily present as the cause an occasion of equipment failure. I have considered all logged entries as they appear including Friday 9 August 2013 Saturday 19 January 2013. By way of further example, on Wednesday 24 April 2013 a Fault Dispenser Cassette was logged and recorded as resolved 7 May 2013 with the commentary, “A review of the journals revealed no dispensing issues and no comms faults whatsoever” meaning that despite complaint of ongoing 303 errors the log did not disclose the same.

[17] Severity 1 means no cash is capable of being dispensed.

In the course of his cross-examination Mr Frankenberg expressed surprise when it was suggested to him that the defendant had not been provided training in the self-cashing process by the plaintiff. Mr Frankenberg was tested under cross-examination in regards to the contents of Exhibit P4. He was directed to the entry logged for Wednesday 12 December 2012 and entered as resolved on 14 January 2013. I note that it was characterised as a “severity 2,”the practical effect of which is, according to the evidence, to inhibit the availability of some denomination of notes but not to prevent cash from otherwise being dispensed.
Mr Frankenberg did not believe that all calls made by merchants to the Help Desk were logged but those of sufficient severity would be. Mr Frankenberg also was prepared to acknowledge that not all calls would necessarily be made to the Help Desk but that some calls might well be directed elsewhere within the company such as to a relevant sales agent, but he said that if sufficiently important he would expect such contacts to make their way back to his division. In other words whilst there is a possibility that Exhibit P4 is not exhaustive, nonetheless, I am prepared to accept that it amounts to the best objective account available.
Mr Frankenberg was directed to Exhibit P9, “ATM Daily Transaction Report”. On Monday 28 November 2011 no activity is recorded as transacted on the ATM however there is no Fault Report logged for that date which Mr Frankenberg suggested may have been due to the machine not holding any reserves of cash.
The record reveals that no cash had been dispensed from the ATM from 1 August 2013 but it was not until 9 August 2013 that the absence of dispensed cash was logged by the plaintiff in the Fault Report. Mr Frankenberg said that generally with an onsite self-cashing machine it would be in the order of a week of “nil” transactions before the matter would be chased up in the absence of a report of complaint or contact from the merchant. He said that for this period, there had been no complaint from the merchant.
Other complaints logged included:

·     Saturday 17 November 2012 a fault with the cassette and a downtime for the machine of 79.68 and the advice given was to use a screwdriver to attempt to pop them out.
·     Tuesday November 27 2012 a fault related to a rejected cassette in which $50 notes were being rejected and not dispensed.
·     On 7 January 2013 a note of entry records that access to the machine had been hindered by fixed shelving that prevented the door of the ATM being opened to enable the dispenser to be replaced.
·     On 14 January 2013 a note records that the “site was absolutely livid.”

On 30 December 2012 a note of entry recorded that parts were received after being ordered on 17 December 2012 but that the site (i.e. the Wraggs) were refusing to install them and inquiries were then undertaken to secure the services of a technician who could attend to perform the task.

The Defence

The defendant adduced evidence from Robert Wragg. Mr Wragg is a director of the defendant that owns and conducts the operations of the supermarket trading as Bardenhagens Supermarket at Lilydale in Tasmania at which the ATM is situated. Mr Wragg said that Lilydale is located some 30 km from Launceston with a population of approximately 200 people.
Mr Wragg said he purchased the supermarket in 2011 and the ATM was in place at the time of the purchase. The vendors told him that if he wanted to retain the ATM then he would need to speak with the plaintiff’s agent. He said this was the first occasion he had been involved in the operation of a business with an ATM. He said he had no prior experience with the technical operating procedures of such machines. He said the retention of the ATM came about as part of the negotiations for the business sale with Rod Hill the agent of the vendor of the supermarket.
As to a mechanism to ensure cash flow was maintained for cashing the ATM, Mr Wragg said he opened a dedicated bank account for that purpose. He maintained a float of $25,000. He said the extent of instruction regarding the operation of the ATM was limited to his son Tom being provided some instruction on how to fill the machine by the vendors of the supermarket. Tom in turn provided some instruction to him. He said no one from the plaintiff provided instruction on cashing the machine.
Mr Wragg said that whenever the ATM got to a low level he would go to the bank and a sum of money would be withdrawn and it would be physically refilled by either Mr Wragg or Tom. How he came to be notified when the ATM was low or by whom was not explored but he said that when ATM bank account balance fell below $21,000 it would be replenished. He said the maximum amount that could be held in the ATM in various denominations was in the order of $25,000.
Mr Wragg gave evidence about the Agreement for the provision of the ATM (Exhibit P1). He agreed that he accepted the terms contained within it. Although he did not profess to have read every word of the agreement, nonetheless, there was no suggestion by him that it was not entered into voluntarily or with a sufficiency of commercial nous as to the respective rights and obligations prevailing under it. Mr Wragg said the agent for the plaintiff was Mr Rod Hill who “roughly explained it to us but I knew it was binding because of the small print but we wanted the business and to keep the customers happy so we signed it”.
Mr Wragg said the ATM did run out of money (cash) on the “odd occasion” but he thought this occurred no more than a half dozen occasions over a period of about two years and it was only because that sometimes he could not get to his bank in time to withdraw cash for use in the ATM.
Mr Wragg was directed to the ATM Daily Transaction Report (Exhibit D9) and was asked about the frequency of the transactions recorded each day. Mr Wragg said it was “very fair” to suggest that the ATM was often used. Mr Wragg said the provision of the ATM provided a much needed service to the townsfolk as there was no other machine for some 35 or 40 kilometres away. I accept this. It is a matter of record that the provision of physical branch banking has contracted significantly in recent history.
Mr Wragg gave a lengthy history of requests made by him of the plaintiff to service or repair the ATM. He said the plaintiff sometimes offered phone assistance. He said Mr Egan-Lee had suggested to him manually rebooting the machine by switching it off and back on. He said this worked. He said when Mr Egan-Lee didn’t answer a call then he would need to call the Help Desk. He said that on one occasion of an evening he found it necessary to refill the cassettes but they would not release. The telephone advice he received was to suggest the use by him of a long screwdriver inserted into the mechanism to release them. He said he asked the operator if this was acceptable and was told that the same advice had been given on occasions to others who had encountered the same problem.
Mr Wragg said “we were always ringing them”. He said he recounted instances in which the staff of the supermarket were verbally abused by customers who had endeavoured to use the machine for a withdrawal but had not been provided with cash had been issued a receipt showing their account had been debited. No evidence was produced to establish either of these claims although I am prepared to accept such second hand reports were conveyed to him by staff.
Mr Wragg said Mr Egan-Lee remained his point of contact with the plaintiff because he was the account manager. Mr Wragg said his constant refrain to Mr Egan-Lee was, “This has been going on for too long just give us a new machine” but was met with the reply, “there is nothing wrong with the machine you’ve got”.
Mr Wragg said the first call made to Mr Egan Lee of complaint about the ATM was “almost from the start”. He recounted that on occasions Mr Egan-Lee told him that he would report the complaints raised “on to his superior”. He said that Mr Egan-Lee had never told him that he needed to direct his complaints to the Help Desk. Mr Wragg when asked of the frequency of his exhortations by way of complaint about the ATM over the period of a couple of years said, “I would have complained by telephone to Lee hundreds of times”.
Mr Wragg testified that the supermarket traded from 7.00am to 7.00pm every day of the year save for Christmas Day and Good Friday. He said the machine was never left un-cashed for anything greater than “a few hours” on those odd occasions it ran out of cash. He said it was never the case that the machine was left uncashed for an entire trading day.
Mr Wragg was directed to the ATM Daily Transaction Report for Sunday 12 February 2012 on which there were 3 transactions recorded and on Monday 13 February 2012 when nil transactions were recorded and Tuesday 14 February 2012 when it seems that only 7 transactions were recorded. Mr Wragg presumed that these were days the machine was not working. Mr Wragg said he was still involved in his dry cleaning business at the dates of the aforementioned transactions. He described the process by which he was made aware by either a member of staff or his son of the problems that had been encountered and he also said that when an issue was not able to be resolved on the spot it would fall to him to contact Mr Egan-Lee and relay the problem. He said he believed his son might have had occasion to call the plaintiff on one occasion. He said however that he took on the task of contacting the plaintiff because he was more measured in his language than is his son.
Mr Wragg was directed to the letter he wrote dated 2 July 2013 (Exhibit D 10) on the letterhead of his dry cleaning business and expressed as follows:

DUE TO MY PREVIOUS CONCERNS WITH THE UNRELIABILTY OF YOUR ATM 82700015 AT OUR BORDENGAHENS IGA LILYDALE TASMANIA I HAVE DECIDED TO TERMINATE OUR AGREEMENT WITH SPECIAL REGARD TO:
CHANGE OF BANK ACCOUNT REQUEST (NOT FOLLOWED THROUGH) CL 18.1
REQUEST OF CHANGE OF ATM (“ “ “) CL 3.12
ALL SERVICE REPAIRS NOT CARRIED OUT CL 10.3”

The letter attached a number of sheets of paper with the names of people and comments alongside that comprised a petition Mr Wragg said he conducted from the supermarket. He said “some of the comments were crude but that was beyond his control”. The probative value of the comments is very limited other than revealing that those who signed it expressed disgruntlement on their occasions of attempted use of the ATM.
The letter of 2 July 2014 bears a transmission verification report of 24/03/2009. Mr Wragg could not explain the anomaly of the date of the transmission report. The plaintiff’s counsel conceded that it had received the correspondence at some point in time and on the basis of this concession I received it into evidence.
Mr Wragg said he could not recall why he wanted to change the bank account details as mentioned in his letter.
Mr Wragg described the contents of his letter as a notice of termination of the agreement with the plaintiff. Mr Wragg said he spoke to Mr Egan-Lee prior to sending the letter. He thought Mr Egan-Lee may have said something along the lines of, “You can’t do that” to which Mr Wragg testified, “I imagine I would have replied something to the effect, ‘Well I have done it.’” He said he understood the letter was sent on his behalf by George Stillioupolos[18].

[18] Other than being referred to by name, no other mention was made of him but he was pointed out by Mr Wragg as present in the body of the court

The last recorded transactions by the machine occurred on Thursday 1 August 2013 after which Mr Wragg said it was replaced by a machine provided by a different supplier.
Mr Wragg said he believed the plaintiff had dispatched a technician “once or twice”, “possibly two times” to attend on site in response to requests by him in connection with matters including the replacement of the modem, the keyboard “because the numbers were worn off” and the cash cassettes.

Mr Wragg cross-examined

Mr Wragg said his wife and son are the principal operators of the supermarket business. He accepted that for the majority of his working week he was engaged in the conduct of a dry cleaning business.
Mr Wragg was taken to the Agreement made with the plaintiff (Exhibit P1). He agreed that it identified his wife and son as the principal contacts. He said that his son was not trained by the plaintiff but had obtained some instruction from a member of staff who had worked at the supermarket under the previous ownership. Mr Wragg was asked why his son was not giving evidence. He said his son wanted to but that he “did not think it was necessary”. The plaintiff’s counsel in final address submitted that I should draw an adverse inference in accordance with the principles enunciated in Jones v Dunkel (1959) 101 CLR 298.
For the principle in Jones v Dunkel to apply to a failure to call a witness there are three elements required to enliven the rule and in application to this case they are:

(i)That Tom Wragg would be expected to be called by the defendant and not the plaintiff.
(ii)That Tom Wragg’s evidence based on the other evidence available at the hearing, would probably have been be able to shed some light on the facts in issue.
(iii)Tom Wragg’s absence was unexplained and positive evidence of “unavailability” is required.

I am satisfied that each of the elements expressed above are satisfied. I am satisfied that Tom Wragg could have spoken as to the narrative of events said to amount to the ATM “not working” and as a result of his absence, I am more readily persuaded to accept the evidence given by the plaintiff of the circumstances of fault, the reporting and the response to same. However, I do not by his absence draw an inference that evidence not put before the court that I would have expected to be adduced from him would have been damaging or adverse to the defendant’s case.
Mr Wragg testified about his understanding of what occurred when a problem was encountered with the ATM when he was absent. He said his son would stand by it while taking telephone assistance from the Help Desk in an effort to work through the problem. He said if an issue was unable to be sorted out then and there, either his wife or son would notify him by telephone at the dry-cleaning business, and after he had “knocked off’ work, it would be necessary for him to travel to the supermarket and then get on the phone himself to the Help Desk to see if the problem could be resolved. Understandably Mr Wragg found this a frustrating process.
Mr Wragg was directed to the information contained in the Daily Transaction Report (Exhibit D9). The plaintiff’s counsel suggested to him the document identified in regard to amounts dispensed from the machine that there were no periods of time when the machine was not operating for more than 2 consecutive days. Mr Wragg responded that the number of angry and dissatisfied customers encountered even if only for a period of 2 days was substantial.
Mr Wragg was asked if he agreed that on no occasion when an issue had been brought to the attention of the plaintiff in regard to the operation of the ATM that it had not been resolved within 10 business days. Initially Mr Wragg disagreed with this proposition and said “there were actually times when there were delays with your service agent from Devonport to call on us and I would think there were periods of longer than 10 days that it was not working”. However, when pressed, he said, “Yes, okay, I agree it would be fixed within no longer than 2 days, 2 or 3 days whether fixed by us or otherwise.”
Mr Wragg said the machine was “always” cashed and so that was not a cause of the machine not being operational. He accepted, however, when directed to the documents and to his earlier evidence, that there was the possibility of upwards of 6 occasions over the period of use that a failure was due to lack of cash.
Mr Wragg was directed to Clause 18.1 of the Agreement detailing the mechanisms applicable for default and termination of the agreement by the merchant. The clause provided that the Agreement could be terminated on 28 days prior written notice due to breach of an essential term and if capable of remedy such breach has not been remedied within the 28 day period. Mr Wragg acknowledged that this was the applicable mechanism under the agreement. It was suggested to Mr Wragg by the plaintiff’s counsel that he had not caused a notice of termination to be sent to the plaintiff based on a breach of an essential term of the agreement. Mr Wragg disagreed, and he relied upon the contents of his letter dated 2 July 2013. I am not satisfied that the letter is one that meets the requirements of Clause 18.1 because does not identify other than in a collective sense the breach of an of the essential term nor to the extent it could be construed as such that reserve the necessary period to determine the capacity for remedy by the plaintiff which failure to remedy within the 28 day period then engages the right to terminate the Agreement by the merchant.
On 1 August 2013 the defendant turned off the machine and another machine was installed by it from a different supplier. I observe that the plaintiff does not pursue a breach of clause 18.5 of the Agreement by reason of the placement of another ATM within the 12 month period of restraint.

Following on from this and on 26 August 2013 the plaintiff sent a notice of breach to the defendant (Ex P2). On 26 August 2013 the defendant was sent a notice of default in accordance with the terms of the agreement (Exhibit P 2).
In the course of cross-examination of Mr Wragg, it was suggested to him that in June 2013 he attended an IGA conference and discussed the replacement of ATM’s and shortly thereafter he contacted the plaintiff of his intention to cancel the agreement and install a different ATM. Mr Wragg said he had asked Mr Egan-Lee for the machine to be upgraded and was met by him with the response that there was nothing wrong with the machine.
Mr Wragg asserted that the reports furnished by the plaintiff and relied on by it, gave nothing approximating an accurate record of the many faults that were encountered with the ATM. He put it bluntly in these terms, “someone here is lying and it’s not me.”
Mr Wragg was not re-examined.
The defendant adduced no other oral evidence.
I found Mr Wragg to be a plain speaking man and direct in language and responses in evidence and cross-examination. I accept he holds a firm view of the correctness of his explanation that the faults with the ATM lay at the feet of the supplier but the fact of the matter is that much of the evidence he gave, he gave in the capacity of “responder” to events and relying on an account of them from others as he was occupied elsewhere in the operation of another business. Moreover, the anecdotal accounts of complaint are not sufficient in nature to overcome the best available evidence of cause and effect that I have had placed before me by the plaintiff. Such attempt to construct a narrative of cause arising from ongoing and continuous fault in the machine, as opposed to or to be distinguished from, operator error and the like, although attempted to be led by the defendant was not pursued after it became evident that the source document referred to and without analysis of an expert nature shed no probative weight to the core defence.

The defendant’s submissions

Application was made to further amend the Amended Notice of Defence after the plaintiff’s case had closed. The application was not ultimately pursued and was withdrawn. In any event, the application to further amend did not seek to advance the defence by pleading the incorporation of an implied term. Ultimately the defence is that the ATM was repeatedly found to be unreliable in the ongoing capacity of it to execute the function to dispense cash. The following issues therefore need to be addressed.

(i)First, has the defendant adduced evidence that establishes on the balance of probabilities that the ATM supplied by the plaintiff was so unreliable as to not be capable of undertaking its basic function?
(ii)Second, does the Agreement make provision by way of implication that the defendant may terminate the agreement otherwise than for a breach of an essential term of which notice is given and remedied cannot be provided?
(iii)If yes to what, is the implied term?

In my judgment the answers to the above questions are:

(i)No
(ii)No
(iii)Does not arise

The defendant referred to Clause 18.3 of the Agreement that provides as follows:

“The merchant may terminate this Agreement on 28 days prior written notice if ATMS breaches an Essential Term of this Agreement, and if capable of remedy, the breach is not remedied within that notice period”.

Clause 28 is headed: “DEFINITIONS AND INTERPRETATIONS” and commences with clause 28.1 of the Agreement that states:

“For the purposes of this Agreement:
ATMS[19] Essential Term means clauses 3.1, 3.2, 10.1, 10.3, 10.4, 10.5, 10.10 and 10.11”.
[19] ATMS means under clause 28.1 ATM Solutions Australia Pty Ltd ABN 87 097 550 519 (the predecessor in name to the Plaintiff)

Of these clauses only 10.3 is relevant. Clause 10.3 stipulates that “ATM’s must service and repair the Equipment. If ATMS receives notice of Equipment failure, it must take action to commence the service or repair process within 10 Business Days of receiving such notice…”
The Agreement is silent on what constitutes the taking of “action to commence the service or repair process”. I am not called on to determine if the obligation to “take action to commence the service or repair process within 10 days” is a fair term of the Agreement, nonetheless, it begs the question whether the issues that Mr Wragg testified beset this machine if amounting in each instance to equipment failure are sufficiently met by a term that requires in order for compliance, only a response by way of a service and repair process commencing within 10 days of receipt of a notice.
The fact of the matter is that the defendant did not contend there had been a breach of an Essential Term of the Agreement. Neither did the defendant allege a failure on the part of the plaintiff to “take action to commence the service or repair process within 10 Business Days of receiving such notice” (i.e. a notice of Equipment Failure). The defendant conceded that the ATM on occasions of failure did not fail in circumstances that would amount to breach by the plaintiff as supplier pursuant to clause 10.3 of the Agreement.
The defendant argued instead for the implication of an implied term of the Agreement, without which it submitted, the defendant would have no recourse under the Agreement. The defendant submitted that an implied term should be to the effect that the ATM would be capable of operating in a manner expected of an ATM, that is, with a sufficient degree of regularity that would be seen capable as fulfilling the purpose of its supply, namely, the provision of cash to those wishing to use it.
Mr. Wragg did not challenge the data relied on by the plaintiff to show that the plaintiff responded to notices of equipment failure in accordance with its contractual obligations under clause 10.3 but instead submitted that what was not disclosed in the ATM Daily Transaction Report and Fault Report Log was the frequency with which issues about the operation of the ATM were raised with the plaintiff’s agents and Help Desk and that the frequency of the same resulted in the ATM supplied by the plaintiff not complying with the implied term pressed for by it. It was pointed out on behalf of the defendant that there were days when “nil” transactions were recorded and days when there was a comparative lack of transactions from which it was submitted I should conclude was corroborative of the unreliability of the ATM.
I accept that it is difficult to fathom a more essential term to the performance of a contract for the provision of an ATM than that the machine is reliable in its operation to dispense cash when required. The defendant submitted that the evidence establishes on the balance of probabilities that the ATM was fundamentally unreliable and not capable of performing this function. The plaintiff of course submitted otherwise, and contended that the Agreement acknowledged the commercial imperative underpinning the grant of the license by reserving to the merchant the capacity to terminate the agreement if the machine could not be made operable, but which on the facts of this case, and accepted by the defendant, occurred in each instance and well within the response time. I agree.
Having regard to the evidence referred to by me in these reasons and referred to earlier I am not satisfied that the defendant has adduced evidence that establishes on the balance of probabilities that the ATM supplied was sufficiently unreliable as to not be capable of undertaking its basic function of dispensing cash.
I also am not satisfied on the balance of probabilities from the evidence before me that the defendant has established that the difficulties encountered by the use of the ATM amounted to Equipment Failure of such frequency and of such a type to prevent cash from being dispensed that it was at liberty to purport to terminate the Agreement outside the terms of the Agreement which necessitates notification by the merchant and the recourse by the defendant to remedy if capable. Even if I had decided such recourse outside the terms of the agreement arose, I would not be satisfied that such of the number of the recorded complaints could not be attributable to operator errors including the absence of cash, electrical overloads and factors connected with the filling of the ATM.
Furthermore, I would not in any event, be satisfied that the proceeding calls for the implication of an implied term however it might ultimately have been drafted or expressed. The Agreement contains essential terms including the right of the Merchant to terminate for breach pursuant to Clause 18.1.
I note that the nature of the Agreement is such as to have excluded a claim under the ACL for statutory warranties. [20]

[20]

I am satisfied by the evidence of the Daily Transaction Report (Exhibit D9) that there were days that the ATM conducted “nil” transactions or days when transactions were comparatively limited in number. In my view, however, that is not sufficient evidence that the ATM was so unreliable as to say of it that it was incapable of performing its basic functions and that on these days of “nil” or limited transactions, it was for such a reason. In reaching my conclusion I have given consideration to the evidence of communications of complaint about the ATM. After all there is a tranche of contact made between the defendant and the plaintiff, and as between those with whom Mr Wragg had dealings in connection with the Agreement that his company entered into for the ATM such as Mr Egan Lee and Mr Hill, that does reveal a considerable degree of disquiet with the operational and functional reliability of the ATM. I have previously referred to Exhibit D2 consisting of an email from Rod Hill who wrote to the plaintiff, with some exasperation, that this was probably the 20^th time since Christmas that he had been in touch and yet problems still existed and Mr Wragg was seeking no more than that the ATM accord to basic standards. The email of course is not evidence identifying cause, or specifying by any stated measure what amounts to “basic standards,” and therefore, also begs the question where the responsibility for such complaints about the operational reliability of the machine resides and whether by dint of equipment failure or operator and related errors.
The plaintiff in addressing the performance of its obligations in response to complaints made by the defendant had recourse to the contents of the Fault Report (Exhibit P4) and referred, for example, to an incident description recorded on Wednesday 24 April 2013 that would appear to be responsive to the complaint referred to by Mr Hill in his email and the reference to journal reports for the last three months was relied on as evidence discounting the possibility of there being a default in the machine but not having been recorded. Furthermore “resolution” was logged for 7 May 2013.
The defendant conceded that the ATM was not otherwise than attended to in accordance with the contract but that the frequency of the disruption occasioned by the machine made it unfit for purpose in breach of a necessary implied common law term. The defendant submitted that the emails identified in Exhibits D1 to D8 inclusive support the relative futility in having a 24 hour help desk if one is so frequently required to call on it for help.
It is trite to say that the rights and obligations of parties to a contract are determined by the terms of the agreement they enter. Such terms may be express (howsoever articulated by the parties - whether in written or oral form) or implied.
The Agreement entered between the plaintiff and defendant is very detailed. However, it would be fanciful to think that the defendant had any input into the inclusion of the terms. The agreement was in fact referred to as containing standard terms. Such freedom to contract consisted of the ultimate freedom, that is, to enter into contractual relations or not; the defendant chose to enter into a commercial relationship with the plaintiff. I can appreciate that there were a number of imperatives that made the retention of the ATM attractive to Mr Wragg and, I am sure, he considered that its continued presence provided a useful and important economic benefit to the townsfolk of Lilydale. Be that as it may, I am not called upon to decide issues of social utility, but instead to decide the meaning to be accorded a commercial agreement.
Clause 12 of the Agreement is headed, MERCHANT RIGHTS AND RESPONSIBILITIES” and sub-clause 12.1 states:

The Merchant must keep the Equipment in good working order and condition, clean the exterior of the Equipment on a periodic basis and maintain the space surrounding the Equipment in safe, neat and orderly condition with unobstructed access to the Equipment. The Merchant must reimburse ATMs for any servicing and repair costs incurred by ATMs as a result of the default or negligence of the Merchant, its employees, officers, agents, invitees or patrons.

Sub-clause 12.6 states:

In the event of any Equipment failure, damage or other problem which affects the proper operation of the Equipment, the Merchant must notify ATMs within twelve (12) hours of first becoming aware of the failure, damage or other problem.

Clause 5.1 is of the Agreement comprises an acknowledgment by the merchant that the plaintiff gives no representations or warranties regarding the quality, fitness for purpose, safety, performance or suitability of the ATM[21].

[21] The Goods Act 1958 has no work to do in the resolution of this proceeding which involves an agreement for the grant of a licence by the defendant to the plaintiff for the installation of the ATM and is not an agreement for the sale of goods.

No evidence was led by the plaintiff that it sought reimbursement from the defendant as a result of any servicing and repair costs arising from default or negligence on its part and, therefore, it is proper for me to conclude by reference to Mr Wragg’s evidence that on the “one or two” occasions the plaintiff provided a repairer to attend on site, it bore the cost of the same and thus did not regard the need for a repairer to be due to the default or negligence by the defendant.
Implied terms may exist because of the common law (as a result of conduct of the parties, by necessity or by normal commercial practice) or by statutory force. In this case, no implication by statute arises or is relied on.
No implied term was pleaded by the defendant. At no time prior to closing address did the defendant seek to articulate the contents of an implied term and only then was it contended for to be to the effect that the ATM was so frequently unreliable in its fundamental operation as to not be “fit for purpose[22]”. Prior to this point in time, the extent of the defendant’s pleading in the form of its Amended Notice of Defence was that the plaintiff supplied it with a machine that was not in working order. I am satisfied that this allegation, standing by itself, has not been established. The evidence does not establish that the machine supplied by the plaintiff was not in working order, and moreover, the express terms of the agreement made specific provision for the recourse available to the defendant whenever a problem with the machine amounted to Equipment Failure.

[22]

At common law a term can generally be implied where it is necessary to give full effect to the intention of the parties. For example, the common law may imply a term requiring parties to do what is necessary to enable the contract to be performed. In some cases it may be appropriate to ask whether or not the parties would have expressly agreed to the term if they had considered the issue when entering into their contract. In some cases standard terms will be implied without the need for inquiry into the actual intent of the parties in order to give business efficacy to a contract, or as a result of a course of dealings, or as a result of custom or trade usage. The latter two mentioned possibilities for the implication of a “standard term” are not relevant to this proceeding.
In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, Justice Mason set out at [p.347)] the conditions necessary for implying a term as set out by the majority in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] 52 A.L.J.R. 20 at p. 26

'(1) it must be reasonable and equitable;
(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(3) it must be so obvious that 'it goes without saying';
(4) it must be capable of clear expression;
(5) it must not contradict any express term of the contract.'

His Honour discussed the basis for the implication of a term as follows [p 346 -7]:

The implication of a term is to be compared, and at the same time contrasted, with rectification of the contract. In each case the problem is caused by a deficiency in the expression of the consensual agreement. A term which should have been included has been omitted. The difference is that with rectification the term which has been omitted and should have been included was actually agreed upon; with implication the term is one which it is presumed that the parties would have agreed upon had they turned their minds to it - it is not a term that they have actually agreed upon. Thus, in the case of the implied term the deficiency in the expression of the consensual agreement is caused by the failure of the parties to direct their minds to a particular eventuality and to make explicit provision for it. Rectification ensures that the contract gives effect to the parties' actual intention; the implication of a term is designed to give effect to the parties' presumed intention.
For obvious reasons the courts are slow to imply a term. In many cases, what the parties have actually agreed upon represents the totality of their willingness to agree; each may be prepared to take his chance in relation to an eventuality for which no provision is made. The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue. And then there is the difficulty of identifying with any degree of certainty the term which the parties would have settled upon had they considered the question.
Accordingly, the courts have been at pains to emphasize that it is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the contract. ...
The basis on which the courts act in implying a term was expressed by MacKinnon LJ in Shirlaw v Southern Foundries (1926) Ltd (1939) 2 KB 206, at p 227 in terms that have been universally accepted: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying. . .”

Commentary on insufficiency of evidence

There was no expert evidence adduced by either the plaintiff or the defendant. The plaintiff however relied on two documents produced by it. The Fault Report was addressed by Mr Falkenberg although as I have previously observed his evidence was not exhaustive as to the meaning of all entries contained in the report and, in particular, the designated time counter contained in each fault report commencing from the time logged to the time resolved. However, as the defendant conceded that resolution of each problem was achieved within the parameters expressed in the Agreement, the resolution of that uncertainty is not required.
Also problematic was Mr Falkenberg’s evidence of what amounted to a resolution of a fault. In regard to the suggestion that there were other reports of fault made by the defendant but not logged and therefore not referred to in the document, Mr Falkenberg said that he would expect all reports of fault to have been elevated such as to appear in the report. However, he correctly conceded he could not guarantee the same. That was a proper concession.

In the course of final address the plaintiff’s counsel accepted that it would be open to the Court as a matter of law to approach the case on the basis that the ATM supplied by the plaintiff to the defendant must be one that meets the requirements expressed by the Agreement. With respect to counsel, that does not advance the matter much, and I think the better position is that the plaintiff pursuant to the grant by the defendant of the licence for the term expressed in the Agreement was required to supply to the defendant an ATM that would dispense cash and that if, for example, it proved incapable of doing so, then the Agreement was liable to be terminated on proper notice in the event that upon notice and a failure to remedy within the period allowed. Therefore, of itself and without recourse to implied terms, the Agreement makes allowance for a machine that suffers what might be called a fundamental defect. Here, the evidence does not establish the occurrence of these necessary conditions.
Because of my findings it is unnecessary for me to address the fairness issue raised by the plaintiff’s counsel who submitted that it would be prejudicial to it if a term not pleaded was able to be drafted on the run, so to speak, at such a late stage of the proceeding and leaving it unable to respond to the particulars of any term howsoever ultimately expressed or formulated. I agree with the plaintiff’s submission. Whilst circumstances do arise that necessitate late amendments, and hence the grant of liberty to a party to reopen their case by calling additional evidence, this is not the preferable way to conduct litigation and has the potential to be counterproductive in the furtherance of the overarching purpose set out in the Civil Procedure Act 2010[23].

Conclusion

[23] See: Part 2.1

Based on the evidence the defendant has been unable to make good a defence that the plaintiff breached the express terms of the Agreement because Mr Wragg conceded, if somewhat reluctantly, that the plaintiff’s response to problems that beset the machine were resolved within the contracted time frame.
For the reasons expressed there will be an order in favour of the plaintiff that the defendant pay the plaintiff liquidated damages in the sum of $ 38,947.50.
I indicated to the parties at the conclusion of the proceeding that I would reserve the matter of interest and costs subsequent to publication of these reasons. That course was consented to by the plaintiff and defendant.
I direct that a minute of order in relation to the calculation of interest and costs be filed with the court within 7 days of today.
I grant liberty to apply to the parties generally within 7 days of today.
Upon provision of the minute in relation to interest and costs and unless the parties wish to be heard in regard to the same, final orders will be entered.