Gold Coast Pacific Removals Pty Ltd v Mollard

[2011] QCAT 182

CITATION: Gold Coast Pacific Removals Pty Ltd v Mollard and Anor [2011] QCAT 182

PARTIES:	Gold Coast Pacific Removals Pty Ltd
v
Phil and Wendy Mollard

APPLICATION NUMBER:            MCDO213-10

MATTER TYPE:  Other minor civil dispute matters

HEARING DATE:   9 February 2011

HEARD AT:   Coolangatta 

DECISION OF:  Ms Julie Cowdroy, Member

DELIVERED ON:   9 May 2011 

DELIVERED AT:   Brisbane

ORDERS MADE:  It is ordered that the respondents pay the applicant the sum of $1,941.05 within 30 days.     

CATCHWORDS:  Contract for the removal and carriage of goods – damage to goods – exclusion clause in contract – limitation of liability to $1,000

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr A Haberfield, Investrend Debt Solutions, as agent for the applicant Mr C Cruickshank, Gold Coast Pacific Removals
RESPONDENT:	Mr P Mollard and Mrs W Mollard by telephone

REASONS FOR DECISION

BACKGROUND TO THE APPLICATION:

1. The applicant claims the sum of $2,760 plus costs.  The amount sought relates to removal expenses involved in transporting the respondents’ household goods from Brisbane to Victoria.  The full tax invoice was for the sum of $5,520.00, in respect of which the respondents have paid the sum of $2,760. 

1. The respondents refuse to pay the balance as they contend their goods have been damaged due to the applicant’s negligence and counterclaim in the amount of $5,034.95.  The amount of their counterclaim has increased over time, as they obtained quotes and receipts for the replacement and repair of damage to their goods.  

APPLICANT’S CASE:

1. By letter dated 2 December 2009 the firm quoted for the removal of the respondents’ goods from Brisbane to Melbourne.  Uplift date was 12 December 2009 and delivery occurred on 16 December 2009 at a cost of $5,520.  The quotation included the supply and fitting of protective plastic covers for soft goods and the supply of professional furniture removalists to complete the move.

1. The quotation also stated relevantly:

Insurance can be arranged through Associated Marine via an online quote…….. Associated Marine provides two levels of cover:  A Cover – covers your belongings for the full move, including loading and unloading, it also covers cartons packed by owner.  B Cover – coverts your belongings for major perils, while the goods are in transit. 

1. The applicant maintains that the respondents were advised of the desirability of taking out insurance.  The firm’s liability for damage under their standard contract is limited to $1,000, an amount which they offered to the respondents to compensate them for their loss.

1. A quotation form (No 1624 dated 16 December 2009) was prepared by the applicant for the removal of household goods, as calculated by Mr Cruickshank after an inspection of the respondents' goods.  Mr Mollard signed that document in which he accepted the quotation and the conditions of removal and storage.  Item 6 of that document refers to insurance charges and nothing is recorded under that item. 

1. The conditions on the back of that form include Clause 9.2 which states:  Negligence:  We will only be liable for loss or damage resulting from Our negligence, and in any event that liability will be limited to $100 per item or package or $1,000 in respect of all Goods moved or stored under this agreement (whichever is the lesser). 

RESPONDENTS’ CASE:

1. Associated Marine was contacted about insurance prior to the move.  That firm advised that insurance was not available unless the goods were professionally packed.  They did not take insurance because they had packed some of the goods themselves.  It transpired that all the damage had occurred to goods that were packed by the removalists and the goods the respondents packed were intact. 

2. The respondents were present when the goods arrived at the Melbourne address.  When the first container was opened and the first few items came out damaged, the respondents were extremely upset.  Further damage was caused during the unloading process.  It was obvious that the men employed in removing the goods from the truck had no knowledge of how to move glass tops, drawers or bulky items.

1. They were advised by Darren, an employee/agent/contractor of Gold Coast Removals to take photos.  They said that Darren’s “horror was evident” when observing the damage and he made the comment along the lines of “what a bad job the agency had done”.  Most of the goods appeared to have been damaged in transit, although some items such as the French dresser were damaged whilst unloading.      

1. Essentially the claim relates to a lack of care in packing, in transporting the goods and when the goods arrived, they were handled inappropriately, causing further damage to other items.  The respondents had moved house many times and had never taken out insurance when moving within Australia.  After discovering the damage, they had discussions with Mr Cruickshank who indicated that the company would be making a claim for compensation through their own insurer.  They understood that this would cover the cost of replacement or repair.  Ultimately they were told that $1,000 was their maximum entitlement.

2. There was damage to a variety of furniture and effects:  items had not been wrapped, furniture, which was to be covered with plastic arrived with no covering and tie ropes caused soiling on the upholstery, which could not be removed.  A list of items which required replacement or repair, together with quotations and photographs were provided

3. Neither of the respondents could recall being given a copy of the signed quote on the back of which the conditions of carriage appeared. 

CONSIDERATION:

1. The terms of the contract between the parties are committed to writing.  There is an implied condition where the provision of services is the subject matter that those services will be provided with the commensurate degree of skill.

1. This contract contains an exclusion clause.  These types of clauses are terms of a contract that seek to exclude or limit the liability of a defendant from liability to a plaintiff in the event that the defendant causes loss to a plaintiff.

1. Generally speaking, in determining whether an exclusion clause protects a party from liability, it should be given its natural and ordinary meaning, read in the light of the contract as a whole and giving weight to the context in which the clause appears. 

1. In the present circumstances, the quotation provided to the respondents indicated that the applicant’s insurers did not cover the goods and that they must make their own insurance arrangements.  The acceptance of the quotation, which includes a clause relating to insurance charges, indicates also that no insurance has been offered or arranged by the applicant. 

1. The conditions of storage and removal contained on the back of the quotation form, the acceptance of which constitutes a binding contact, contains an exclusion clause which reads plainly and ambiguously that the carrier’s liability for negligence is a maximum of $1,000.

1. The defendants’ dismay that their goods are damaged is understandable.  Notwithstanding the amount of damage to a range of items, the applicant’s liability is limited by the exclusion clause.  The effect of advising clients of relevant insurers is to put them on notice that the applicant has not arranged, nor has offered to insure the goods during removal or transit.     

2. I find that the applicant was negligent in their handling of the respondents’ goods, however, having regard to the exclusion of liability clause, the applicant’s liability is limited at $1,000.  Accordingly, the respondents’ counterclaim is dismissed.

3. I allow the applicant’s claim in the sum of $2,760 plus costs of $181.05 less the sum of $1,000 in compensation to the respondents.  Accordingly, I order that the respondents pay to the applicant the sum of $1,941.05 within 30 days.