Homedeal Air Conditioning v M & Q Equipment Pty Ltd
[2013] QCATA 82
•15 March 2013
| CITATION: | Homedeal Air Conditioning v M & Q Equipment Pty Ltd [2013] QCATA 082 |
| PARTIES: | Homedeal Air Conditioning (Applicant/Appellant) |
| v | |
| M & Q Equipment Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL451-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 15 March 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr J R Forbes, Member |
| DELIVERED ON: | 15 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is refused. |
| CATCHWORDS: | MINOR CIVIL CLAIM – carriage of goods – non-delivery – whether carrier may rely on exclusion clause – whether exclusion clause a term of the contract – measure of damages – whether true measure a bargain price paid at auction or replacement cost – whether leave to appeal should be granted – leave refused Queensland Civil and Administrative Tribunal Act 2009, s 3, s 20, s 32, s 142 Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc [2000] FCA 660 In Re W (an infant) [1971] AC 682 Levison v Patent Steam Carpet Cleaning Co Ltd [1978] 1 QB 69 Lime Telecom Pty Ltd v Powertel Ltd (No 2) [2008] NSWSC 362 Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 Police v Kyriacou (2009) 103 SASR 243 Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd [1992] NSWCA 208 Robinson v Corr [2011] QCATA 302 Rodocanachi v Milburn (1887) 18 QBD 67 Sydney Corporation v West (1965) 114 CLR 481 Westpac Banking Corporation and Anor v Royal |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Appellant, McAleese Subco Pty Ltd (“McAleese”) is a carrier for hire based in Gladstone, Queensland.
The Respondent, M & Q Equipment Pty Ltd (“M & Q”) is a supplier of used and rebuilt mining and quarrying equipment, with premises at Wacol, near Brisbane.
In May 2012 M & Q purchased at auction in Gladstone two industrial pump components, namely a “Warman” throat bush and a “Warman” neck ring, (“the goods”) for a total price of $22.48.
On or about 28 May 2012 M & Q, by a “verbal quote”,[1] engaged McAleese to collect the goods and convey them to M & Q’s premises at Wacol. There were several previous, but unrelated, dealings between the parties.
[1] Transcript of hearing 4 December 2012 (“Transcript”) page 2 (Mulcahy for M & Q).
Collection of the goods by McAleese is undisputed.[2] But they were never delivered.
[2] Ibid page 3 (Gilligan).
On 13 September 2012 M & Q commenced these proceedings in the Ipswich registry of the Tribunal, claiming $6,478.65 as the market value of the goods at the time of expected delivery.[3]
[3] Rodocanachi v Milburn (1887) 18 QBD 67 at 76, 78; Hi-Fert Pty Ltd v Kiukiang
Maritime Carriers Inc [2000] FCA 660 at [98].
M & Q explains the enormous difference between the price it paid for the goods, and the amount claimed, as follows: While M & Q had the benefit of an extraordinarily cheap price[4] at auction, the amount claimed is the replacement cost, as stated by a reputable and recognised supplier.[5]
[4] Transcript page 7 (Robinson): “We were very fortunate.”
[5] Weir Minerals Australia Ltd, quotation 21 June 2012 – attachment to initiating process.
The authenticity of that document (as distinct from the amount recoverable) is not in dispute.
The Liability Issue
As bailee of the goods for transport, McAleese is liable in damages for non-delivery, subject to any contractual exclusion. In this case McAleese relies upon a standard exclusion clause which, so it alleges, was a term of the agreement in question:
The Customer will indemnify the Carrier against ... all claims and demands whatsoever ... in respect of any loss, damage or injury however caused, whether or not by the negligence, breach of contract, or wilful act of the Carrier, its servants, agents or sub-contractors.[6]
[6] Clause 4.3.1,
The onus of proving that this clause was included in the present contract is upon the carrier, McAleese,[7] and as the Adjudicator found, that onus was not discharged. He was not satisfied that the clause was sufficiently drawn to M & R’s attention, and expressly or impliedly accepted by M & R.
[7]Levison v Patent Steam Carpet Cleaning Co Ltd [1978] 1 QB 69; Westpac Banking Corporation and Anor v Royal Tongan Airlines and Ors [1996] Aust Torts Rep 63,650; [1996] NSWSC 409.
The documentary evidence is by no means complete and unequivocal. McAleese sought to rely, inter alia, on a “charge account agreement” which, so it alleged, M & Q must have signed before the course of dealings between the parties commenced in 2007.[8] Ms Mulcay, of M & Q, has no recollection of signing one.[9] But no such agreement was produced; McAleese explained its absence to destruction of records in a flood.[10] A blank copy of the relevant form is in evidence. By way of an annexure, pages 3 to 5 of that document sets out “Conditions of Carriage”, including the subject exclusion clause. There is no clear evidence that that annexure was attached to the “charge account agreement”, if any, signed by M & Q. The “charge account agreement” itself (pages 1 and 2) does not incorporate the conditions of carriage by reference. Instead, on page 2, immediately above the space for the applicant’s signature, it states:
This agreement is deemed to be made upon your company’s acceptance of this application, in accordance with the Terms and Conditions of service and Trading Terms which are acknowledged and understood. These Trading Terms being strictly THIRTY DAYS (30) from statement date, and that, accounts which fall outside our trading terms above will be charged interest at the rate of 2% per month, calculated monthly from due date.
[8] Transcript pages 6, 10.
[9] Ibid page 22.
[10] Ibid pages 3, 7, 10.
But in any event, no preliminary “charge account agreement” between the parties was proved.
McAleese’s receipt for the goods was erroneously written on a third party’s form.[11] Admittedly, McAleese’s consignment notes do not contain the exclusion clause.[12] Mr Gilligan, for McAleese, claimed that its quotations do contain the clause but no such document was produced.[13] According to Robinson, M & Q’s manager, whose evidence the Adjudicator appears to have accepted,[14] the contracting process was simplicity itself:
Adjudicator: When you get a quote that looks like that do you have to sign and return it?
Mr Robinson: No. We wouldn’t have got a quote like that. It would simply have been done over the phone, how much. They would have given us a price to go ahead and do it.
Adjudicator: And you get terms and conditions attached to that quote?
Mr Robinson: Our guy is on a site up at Gladstone on a mine site, rings up and says, “I’ve got this. Here’s the size, here’s the weight, can you give us a quote?” They give him a quote, go ahead and do it. He has no facility to receive anything.[15]
[11] Ibid pages 3, 5, 9.
[12] Ibid page 4 (Gilligan for McAleese).
[13] Ibid page 23.
[14] Ibid page 18.
[15] Ibid page 12. See also page 19 (Robinson) “[W]e have a verbal contract ... we
agreed to a price and ... gave you the go ahead.”
The Adjudicator put it to Mr Gilligan (of McAleese) that the contract “is made up of either a telephone call or an email or something of a quote on your [computer] screen”, and there was no dissent.[16] Ms Mulcay, M & Q’s office manager, “didn’t believe” that she had ever received a written quote.[17] The exclusion clause did not appear on any invoice or statement from McAleese[18]. When the “zero account” for the failed arrangement eventually came in, it did not contain the exclusion clause.[19] She had no recollection of reading that clause,[20] and Robinson testified that he never read it.[21] Mr Gilligan acknowledged that possibility.[22] There simply is no documentary evidence of M & Q’s acceptance of the exclusion clause.[23] Subsequently, so it seems, McAleese revised its relevant procedures.[24]
[16] Ibid page 7.
[17] Ibid page 12.
[18] Ibid page 14.
[19] Ibid pages 10-11.
[20] Ibid page 8.
[21] Ibid page 8.
[22] Ibid page 13.
[23] Ibid page 17.
[24] Ibid page 18 (Gilligan).
In the absence of direct documentation, McAleese contends[25] that, in the light of previous and similar dealings between the parties, M & Q knew, or ought to have known, that the subject agreement was governed by conditions, including the exclusion clause.
[25] Ibid pages 9, 22. Submissions filed 7 February 2013 paragraph 16.
This submission faces the difficulty that McAleese has not, in fact, produced any document containing the exclusion clause that is signed or acknowledged by M & Q; nor has it tendered any quotation, consignment note[26] or invoice related to any consignment by M & Q that includes the clause.
[26] As the Adjudicator found: transcript page 23.
Even if McAleese had proved a series of post-contractual documents, such as invoices, delivered to M & Q for earlier, similar engagements, all containing the vexed exclusion clause, that would not necessarily warrant an inference that M & Q had accepted and agreed to be bound by it.[27] But this point need not be pursued, as in this case no such proof is available.
[27] See Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd [1992] NSWCA
208, and the unanimous decision of the WA Court of Appeal in La Rosa v Nudrill Pty Ltd [2013] WASCA 18 (27 prior invoices).
By the same token, it is unnecessary to consider whether the exclusion relied on is so absolute that it should be disregarded as effectively negating the main object of the agreement.[28]
[28] H & E Van der Sterren v Cibernetics (Holdings) Pty Ltd (1970) 44 ALJR 157 at 158;
Sydney Corporation v West (1965) 114 CLR 481 (reliance rejected); Lime Telecom Pty Ltd v Powertel Ltd (No 2) [2008] NSWSC 362.
As the Adjudicator found, McAleese failed to establish that the exclusion clause was either an express or implied term of the agreement. As the judge of fact, and primary judge of law, that was a decision that he was entitled, on the evidence (or absence of evidence), to make. His finding on the question of liability is not one that an appeals tribunal should disturb.
The Measure of Damages
At first sight, an award of more than $6000 for the loss of goods purchased for $22 may seem bizarre. But that would be a misconception of the applicable legal principle, induced by egregious facts. The normal measure of damages for non-delivery of goods entrusted to a carrier – absent an effective exclusion clause – is the market value of the goods at the time and place where they should have been delivered.[29]
[29] Rodocanachi v Milburn (1887) 18 QBD 67 at 76, 78; Hi-Fert Pty Ltd v Kiukiang
Maritime Carriers Inc [2000] FCA 660 at [98]; McGregor on Damages 14th ed at [877].
M & Q made a windfall purchase, but its award is not a windfall profit. On the only available evidence of quantum,[30] it will cost $6,478.65 for M & Q to regain the position that it would have been in if the goods had been duly delivered. Neither law nor justice requires M & Q to be under-compensated because of its good fortune at the auction. The market value of the goods is not the “once in a lifetime” price paid at auction, but the price demanded by Weir Minerals Australia Limited. The relevant “market” consists of Weir Minerals, and any competitors of that company. The difference between M & Q’s purchase price and its prospective sale price arose at the fall of the auctioneer’s hammer, not when the Tribunal made its decision.
[30] Weir Minerals Australia Pty Ltd, quotation 21 June 2012.
The principle governing this award is quite capable of working in reverse. Suppose that there is an auction of possessions of some famous or notorious public figure. An excited bidder who, for some inscrutable reason, is anxious to acquire a souvenir of the great man, bids successfully for a chattel that is available on the retail market for one third of the auction price. The besotted buyer then entrusts the goods to a carrier. The carrier, unprotected by an exclusion clause, promptly loses them. The proper measure of damages would then be less than the purchase price, namely the price available to prudent purchasers on the ordinary retail market.
It must be said that the Adjudicator received less than exemplary assistance in determining quantum. The only evidence on that issue was Weir Minerals’ quotation, tendered by M & Q. McAleese made no attempt to cross-examine a representative of that company, or to produce replacement-cost evidence of its own. There was no exploration of the possibility that the current value of the goods lost – goods that were at least technically second hand – was less than the brand-new price quoted by Weir Minerals. Apparently no attempt was made to discover how long the goods had been held by M & Q’s Gladstone vendor, or the circumstances of their care and storage before the auction. The fact that the goods were advertised “as new” deserves no more unquestioning acceptance than other auctioneers’ encomiums.
No doubt the Adjudicator would have welcomed further, better and better-tested evidence, but as judges have often remarked, civil litigation must be decided, on the balance of probabilities, on such information as the parties are willing or able to place before them.[31] On the issue of quantum, the Adjudicator made the only decision open to him to make.
[31] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 582
per Stephen J; Police v Kyriacou (2009) 103 SASR 243 at [4].
Should leave to appeal be granted?
There is no appeal as of right. The precondition of leave to appeal[32] implies a legislative policy, so far as justice permits, that decisions in Minor Civil Disputes should be final.
[32] QCAT Act ss 3(b), 142(3)(b).
Leave to appeal, if granted, is not meant to provide an opportunity for a retrial on the merits, or for reiteration of arguments that failed, or evidence that was rejected or unreasonably omitted at first instance.[33] It is not nearly enough for a party to express disappointment at the original decision, or a subjective feeling of injustice.[34] It is necessary to examine the original proceedings to see whether there is a reasonably arguable case of error which, if uncorrected, will result in substantial injustice to the applicant.[35] It is not appellable error to prefer one version of the facts to another, or to attribute more weight to the submissions of witness “A” than to those of witness “B”. Findings of fact will not usually be disturbed if they have rational, albeit debateable support in the evidence.[36] Where reasonable minds may differ, a decision cannot properly be called erroneous, simply because one conclusion has been preferred to another possible view.[37]
[33] Contrast QCAT Act s 20 (review jurisdiction).
[34] Robinson v Corr [2011] QCATA 302 at [7].
[35] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; [2008] QCA 257 at [6]; Drew v
Bundaberg Regional Council [2012] QPELR 350; [2011] QCA 359 at [18]; Felton and
Anor v Raine and Horne Real Estate [2011] QCATA 330.
[36] Fox v Percy (2003) 214 CLR 118 at 125-126.
[37] Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611 at
[131]; In Re W (an infant) [1971] AC 682 at 700 per Lord Hailsham; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1025.
This is not a case posing a question of general importance which should, in the public interest, be reconsidered on appeal.[38] The Adjudicator’s findings of fact and law were open to him, as primary decision-maker. It is not for an appeals Tribunal to “second guess” or interfere with those findings, even if it were inclined to do so. Leave to appeal will be refused.
[38] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk
Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
ORDER
Leave to appeal is refused.
0
12
0