Ice Slushee trading as Just Refrigeration v Hooters Australia Proprietory Limited
[2013] QCAT 372
•19 July 2013
| CITATION: | Ice Slushee trading as Just Refrigeration v Hooters Australia Proprietory Limited [2013] QCAT 372 |
| PARTIES: | Ice Slushee ABN 68 354 229 497 trading as Just Refrigeration (Applicant) |
| V | |
| Hooters Australia Proprietory Limited ABN 92 146 264 799 (Respondent) |
| APPLICATION NUMBER: | MCDO303/12 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 29 April 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Ms Christine Trueman, Adjudicator |
| DELIVERED ON: | 19 July 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. That the Respondent pay to the Applicant the sum of $6,764.95 within seven days. |
| CATCHWORDS: | MINOR CIVIL DEBT - fire damage to hired goods – liability – Breach of Contract – assessment of damages |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ice Slushee t/as Just Refrigeration, represented by Mr Michael Hyde, Director |
| RESPONDENT: | Hooters Australia P/L represented by Ms Nichole Schlebush, Director |
REASONS FOR DECISION
This dispute involves determining liability for damage to two Ice Slushee machines that were owned by Ice Slushee and hired out to Hooters Australia. The slushee machines were alleged to be subject to a Hire Agreement dated 25 October 2010.[1] The claim is for the replacement costs of the slushee machines that were destroyed in a fire at a Hooters Restaurant at Mermaid Beach in Queensland and some stock. Both parties disagree as to who is responsible for the loss of the machines and both propose that each other should have had insurance on the machines to cover loss or damage.
[1] Annexure “A” attached to claim.
The total claim is for $6,654.00, made up for the cost of replacing the two slushee machines of $6,000.00 (incl. GST)[2] and unpaid invoices for three cases of slushee syrups with a total cost of $654.00.[3]
[2] Invoice 1661 dated 21 March 2011.
[3]Invoices No. 1796 dated 28 August 2011 for $218.00, Invoice 1803 dated 6 September 2011 for $218.00 & Invoice 1812 dated 13 September 2011 for $218.00.
HISTORY
Mr Hyde stated he and Ms Schlebush entered into a Hire Agreement on or around 25 October 2010 for him to provide two slushee machines to her that were to be installed at the Hooters premises at Mermaid Beach. He claimed that the machines were subject to a Hire Agreement that provided, amongst other things, that the machines would remain at the premises for a 12 month period thereafter a rental review period of hire would be renegotiated at that time.
Ms Schlebush claims in her response that the claim should be dismissed for the following reasons:
a.The Applicant is not a legal entity and has no right or entitlement to sue in its name and title;
b.The Respondent did not enter into a contract with the Applicant;
c.The Applicant did not supply the machines to the Respondent;
d.The Respondent has no legal duty to pay compensation to the Applicant;
e.An invoice sent to the Respondent is in the name of Hooters Mermaid Beach and therefore the wrong name;
f.The Respondent is not liable to pay for any invoices in the name of Hooters Mermaid Beach;
g.The Respondent is not lawfully responsible for any of the invoices sent by the Applicant to Hooters Australia.
Ms Schlebush disputes that she had an agreement with Mr Hyde on behalf of Hooters Australia Pty Ltd. She claims that each resturant has there own entity and trading ABN and that Hooters Australia Pty Ltd did not start trading until 1 July 2012, well after the date of the fire.
It is not disputed that on 20 March 2011 there was a fire at the Hooters Restaurant at Mermaid Beach and that two slushee machines were damaged beyond salvage or repair. Ms Schlebush states that this resturant traded as TMIX Pty Ltd from 2 September 2009 until the date of the fire on 20 March 2011. She said that the machines could not be covered by her insurance as she did not own them and that it was incumbant upon Mr Hyde, as the owner, to have insured them.
Ms Schlebush stated in her Response that she did not sign an agreement. In her oral evidence she stated that she did sign an agreement but that it was “very loose in terms” and that she signed it at the airport when she met with Mr Hyde. She said that she did not read the agreement but signed it as she was in a hurry.
Ms Schlebush said that the agreement could not be binding as it did not match specific locations, for example, Hooters resturants were located in various areas, like Sydney, Parramatta, Penrith and Campbelltown. Ms Schlebush stated that as the agreement did not specify which store the agreement related to, nor that the company named as Hooters Australia was the actual company liable under the agreement, that the agreement was not binding. She also said that as the agreement was not dated by her, she could not be sure when she signed the agreement. She claimed therefore that the agreement could not take effect until after the Hooters company commenced trading. She claimed that as this was not until 1 June 2012, this was after the date of the fire and therefore there was no contract between the parties as at 20 March 2011.
Mr Hyde said the agreement was signed by Ms Schlebush on or around 25 October 2010. He agreed it was signed at the airport when the parties met there. He said he signed the agreement as witness on 25 October 2010. He said Ms Schlebush signed as a “Director of Hooters Australia” and it was a binding contract between the parties for all restaurants where he supplied slushee machines. Mr Hyde said it was a condition of the Hire Agreement that he would supply all stores with machines and that was conditional on the Hirer purchasing all syrups from him. Mr Hyde said that at the request from Ms Schlebush he has installed slushee machines at various locations of Hooters resturants in New South Wales and Queensland.
Mr Hyde said that the most relevant and important term and condition of the Hire Agreement that was relevant to his claim was clause 8 and 10. These clauses related to the obligation on the Hirer to keep the machines in good condition and to be liable for any damage or loss incurred by the Hirer. Clauses 8 states:
8.The Hirer shall use the Equipment in a proper manner and keep the equipment in good condition. … If any damage beyond fair wear and tear is caused to the equipment by whatever cause, the hirer shall be responsible for costs of repair or replacement and will keep the owner indemnified against all loss or damage to the equipment… The amount of any such loss of, or damage to, or cost of repair, of the equipment shall be deemed to be a debt due by the Hirer to the Owner and be recoverable accordingly.
Clause 10 states:
10.In no event shall the Owner be responsible for any expenditure, damages and/or loss incurred by the Hirer arising out of breakdown or failure of the equipment, whether caused by fair wear and tear, negligence on the part of the owner or of any other reason whatsoever.
Ms Schlebush claims that the slushee machines were not covered by her insurance. Mr Hyde made the same claim that the machines could not be covered by his insurance policy as they were not in his posession and the Hire Agreement shifted responsibility for any damage to the machines from him to the Hirer.
Both parties provided evidence of their insurance policy and insurance details to eliminate the accusation by the other that a claim had been made by each of the parties and not disclosed.
Is Hooters Australia the proper named and correct respondent?
Mr Hyde provided to the tribunal a copy of an ASIC & Business name Search of Hooters Australia Pty. Ltd with ABN 92 146 264 799.[4] I am satisfied that Ms Schlebush is the current and only Director of that Company. The search reveals that the business name was first registered in New South Wales on 9 September 2010. I am satisfied that Ms Schlebush has been a director from 9 September 2010. I am satisfied that the company has been in existance since 9 September 2010 and operating from that time. I have no evidence it was a shelf company and that it commenced operation at the later date in 2012 as stated by Ms Schlebush.
[4] In a bundle of documents marked Exhibit 1.
I find that the Respondent Hooters Australia is the proper named Respondent in this case.
When was the agreement signed by Ms Schlebush?
Ms Schlebush stated that she signed the agreement but could not recall the date she signed the agremeent. She states that she signed the agreement on a date after the fire occurred. Mr Hyde stated Ms Schlebush signed the agreement on the same date he witnessed her signature and signed it on 25 October 2010.
Mr Hyde stated that he had emailed the Hire Agreement to Ms Schlebush for her to sign. He said he had an email to prove the dates. Mr Hyde provided an email dated 26 October 2010, the day after the agreement was allegedly signed. The emails states “ please find attached the Hire Contract for the Slush Machines. The two brand new machines are in your store at Paramatta as we discussed. “ The email has attached to it “2 attachments”. The email purports to have attached two Hire agreements sent to Ms Schlebush. Mr Hyde claims this is the date he sent the Hire Agreements to her. The email further relates to other information not relevant to these proceedings but refer to communication and the Hooters resturant at Mermaid Beach.
I am satisfied that the email and agreement was sent to Ms Schlebush and signed by her sometime in late October 2010. I am satifsifed that the agreement was executed by the parties on a date well before the fire occurred.
Was the Hire Agreement a binding contract between the parties?
I am satisfied that the Hire Agreement was signed by Ms Schlebush in October 2010. I am satisfied that Hooters Australia P/L was in existence and trading at the time of the execution of the agreement and therefore the agreement should bind the parties. I do not accept the evidence of Ms Schlebush that she did not read the Agreement, and signed it without understanding her responsibilities and obligations it placed on her. I found that Ms Schlebush was a competent and astute business woman operating many resturants in various locations across Australia. She appeared to be confident in her evidence relating to running the businesses and a person who has managed successful resturants for many years. I find and am confident from her evidence that she was a woman who understood contracts and agreements, and was well aware of the content of the Hire Agreement. I do not accept ignorance and her alleged failure to have read the agreement as an excuse for not being bound by it. Having read the terms and conditions, and considering the evidence of the parties I am persuaded that both the parties are bound by the terms and conditions contained within the Agreement.
Who is liable for damages to the Slushee machines?
I do not accept the evidence of Ms Schlebus that she was not aware of her obligations and liability to insure the slushee machines. I find that, at the outset, shortly after the fire occurred, she thought the machines were covered by her insurance policies. In an email on 21 March 2011[5] sent by Mr Hyde to Hooters to the attention of [email protected] it states:
“I was just speaking to Carmen this morning she asked me to do an Invoice for the 2 Bunn Ultras we lost in your fire. Could you please pass this invoice on to her for the Insurance. If there is anything I can do to help let me know.”
[5] Ibid.
An email in response sent from Ms Schlebus to Mr Hyde on 14 April 2011 [6] states:
“Hi Mike, We need a quote so insurance will pay us for the machines, please add a 30% builders markup onto your quote. We need to advise Insurance we have paid for the machines previoulsy, so that they will pay us for them to pay you. Otherwise the machines will only be covered under your insurances.”
[6] Ibid.
Mr Hyde provided a copy of a quote[7] dated 14 April 2011. He said he prepared the quote at the request of Ms Schlebus for the replacement of the slush machines which were destroyed in the fire, being for the sum of $8,200.00 which included the margin.
[7] Ibid.
I am persuaded that Ms Schlebus was attempting to cover the cost of the damaged machines from her insurance company under her policy but for whatever reason the claim was refused. Ms Schlebush alleged that the items were not insured due to the fact they she did not own them. I cannot be certain about this evidence and there was no evidence presented to the tribunal on this point. I am satsified that only after this event, being insurance refused, did she then back away from her obligations and her position became that insuring the machines were not her responsibility.
Ms Schlebush stated in her response filed on 12 June 2012 that the “machines were not supplied to her”. I do not accept that proposition when all the evidence points to the contrary. Mr Schlebush has conceded in emails and in her oral evidence that the machines were installed in the Mermaid Beach resturant and that she authorised such installations. She also refutes that “she entered into a contract with the applicant” when clearly she signed the hire agremeent in witness by Mr Hyde. I am satisfied the slushee machines were installed in the Hooters Mermaid Beach restaurant pursuant to the Hire Agreement executed by the parties on 25 October 2010. I am satisfied from the evidence that both parties have not been paid any insurance for the machines damaged in the fire on 20 March 2012.
I find that the Hire Agreement indemnifies the Hirer in relation to any loss, damage or repairs required of the machines unless any such maintenance repairs are deemed fair wear and tear. The Agreement states at Clause 6 that “The hirer shall use the equipment entirely at the Hirer’s own risk.” The agreement is specific in stipulating that at all costs the Hirer indemnifies the Owner of any liability, whatsoever, arising from any event that could cause loss, damage or repair.
I am satisfied that clause 6, 8 and 10 of the Hire Agreement persuade me that Hooters was liable to Ice Slushee for the cost of the replacement of the slushee machines that were destroyed in the fire.
Mr Hyde claims for the cost of replacement of the machines as contained in his invoice number 1661 in the sum of $6,000.00. My Hyde also claims for the costs of unpaid invoices for delivery of syrups for the slushee machines.
Were the Syrups Delivered to Hooters?
Ms Schlebus claims it could not be verified if the boxes of syrups were actually delivered to the various Hooters resturants as identified in the invoices, or in fact if they were ever ordered. I find that Ms Schlebus could not produce any evidence that the invoices had been paid. I find that her lack of memory and at times vague evidence regarding certain particulars and facts surrounding the fire and slushee machines, leads me to a finding that Ms Schlebus is uncertain or unclear of evidence when it appears it does not support her position. For example, her failure to disclose that she initially thought the machines were covered by her insurance policy and requested quotes. Yet at the hearing she refused to acknowledge that she considered that the machines were ever covered by her insurance policy. This evidence is contradictory and inaccurate.
Ms Schlebus stated in her Response that she did not enter into a contract with Mr Hyde but gave oral evidence that she signed the agreement but could not remember the date she signed it. Her evidence on this point is unsafe as, just like Mr Hyde, it was open to her to have checked her emails to confirm what date Mr Hyde had emailed the Hire Agreement to her. Ms Schlebus gave contradictory evidence and at times her evidence and recollection of facts were vague. For this reason, I cannot be certain that Ms Schlebus may have just forgotten about the cases of syrups that were ordered and now refuses to pay for them.
My Hyde, in contrast provided a copy of one of the Orders[8] for 2 of the 3 invoices claimed by him. An order from Hooters Parramatta faxed to him on 7 December 2010 being order no 101207-06 is for 3 cases of syrups. The order appears to match one of the outstanding invoices that is claimed. In the absence of a reasonable excuse or explanation for failure to pay Mr Hyde for the orders, he is entitled to be paid.
[8] Exhibit 2.
In the absence of any evidence to prove to the contrary I prefer the evidence given by Mr Hyde in that the syrups were ordered by the Hooters resturants at Paramatta and Penrith, that he delivered them and has not been paid. I accept his evidence that he delivered the following orders:
1.to the Hooters Penrith resturant on 28 August 2011 a case of Slushee fruit tingle Daquiri Syrup at a cost of $218.00(including freight),
2.to the Hooters Penrith resturant on 6 September 2011 a case of ice slushee strawberry daiquiri (including freight) at a cost of $218.00
3.to Hooters Parrramatta resturant on 13 September 2011 a case of Ice Slushee Strawberry daiquiri syrup (with freight) at a cost of $218.00;
and that the invoices for those orders should be paid.
I also find that the Respondent should pay the filing fee of $95.00 and the Business and Company Name search fee of $15.95. I make no finding as to interest or costs.
The order that I make is as follows:
1.That the Respondent pay to the Applicant the sum of $6,764.95 within seven (7) days.
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