Kennards Hire Pty Ltd v Cummings - [2011] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KENNARDS HIRE PTY LTD -v- CUMMINGS [2011] WADC 8

CORAM: DEANE DCJ

HEARD: 8-9 JUNE 2010

DELIVERED : 27 JANUARY 2011

FILE NO/S: CIV 1931 of 2008

BETWEEN: KENNARDS HIRE PTY LTD
Plaintiff
AND
TREVOR CUMMINGS
Defendant

Catchwords:

Contract of hire for machinery/equipment - Terms and conditions of hire - Insurance for theft and/or loss of machinery/equipment whilst on hire - Whether defendant insured for theft of machinery whilst on hire - Term and condition requiring machinery/equipment to be secured during period of hire

Legislation:

Nil

Result:

Judgment for plaintiff in sum of $61,015.40

Representation:

Counsel:

Plaintiff: Mr S B Green
Defendant: In person

Solicitors:

Plaintiff: Havilah Legal
Defendant: Not applicable

Case(s) referred to in judgment(s):

J Spurling Ltd v Bradshaw [1956] 1 WLR 461
Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 661
L'Estrange v F Graucob Ltd [1934] 2 KB 394

DEANE DCJ:

The pleadings and issues

The plaintiff is a company incorporated in New South Wales and it is in the business of providing goods and services on hire. In a statement of claim filed in the District Court on 8 October 2008, the plaintiff alleges that between 26 June 2007 and 7 December 2007 the defendant contracted in writing on 44 separate occasions with the plaintiff for the provision of hire goods. The defendant, Mr Trevor Cummings, is self‑employed and is the sole director and owner of the business Global Garden Care which is engaged in carrying out maintenance contracts and soft and hard landscape work for various constructions companies. Paragraph 5 of the statement of claim alleges that the terms of the contracts for the provision of hire goods to the defendant included but were not limited to:
1.a late payment fee calculated daily at 10% per month on all unpaid charges;
2.any expenses or legal costs (including commission payable to a commercial agent) incurred as a result of the failure of the customer to pay any charges when due;
3.immediately on request by Kennards, the customer is to pay the new list price of any goods or equipment which was for whatever reason not returned to Kennards.
Initially par 6 of the statement of claim alleged that pursuant to the contracts for the provision of hire goods, the plaintiff hired goods and equipment to the defendant and issued invoices to the defendant totalling $26,872.85. There then follows a chart itemising the date of hire relevant to each of the 44 occasions of hire between 26 June 2007 and 7 December 2007, the invoice number relevant to each separate hire contract and the amount of each separate hire contract. It was alleged that in breach of those particular contracts the defendant failed, refused and/or neglected to pay the plaintiff the sum of $26,872.85 for the goods and services provided. When the matter came on for trial in this court, counsel for the plaintiff advised the court that on 3 June 2010 consent orders were agreed and filed in the District Court, as a result of which judgment was given to the plaintiff in the amount of $26,872.85, being the amount of the outstanding equipment hire fees payable by the defendant to the plaintiff. Therefore it was not necessary at trial to deal with that particular issue, although there remained the question of the interest pursuant to the contracts claimed by the plaintiff at 10% per annum from the time of the first relevant invoice which was said to be 2 July 2007, the due date in each instance relevant to individual invoices being the final day of the following month when payment on the particular hire contract was expected to be made, to 9 June 2010 being the final day of trial. According to counsel for the plaintiff the total interest calculated on that basis resulted in a sum of $6,299.80. Alternatively, the plaintiff claims interest on those particular contracts pursuant to s 12 of the Supreme Court Act 1935.
The second part of the statement of claim, which was the live issue at trial, concerns the plaintiff's claim for the replacement cost of a piece of equipment known as a kanga mini‑loader track machine 'Model number GENE‑5KVA' (the 'kanga'), which the plaintiff alleges the plaintiff hired from it on or about 3 November 2007 and which was reported stolen on or about 7 November 2007 whilst it was in the possession of the defendant. The statement of claim alleged that the new list price of the kanga was $33,700, reflecting a provision in the hire contract stating that if a piece of equipment went missing its replacement cost was the listed retail price. Counsel for the plaintiff advised the court at the commencement of trial that following the filing of the statement of claim an invoice emerged indicating the price that the plaintiff paid for a replacement kanga (the missing kanga having never been found) was $27,842.72. Exhibit 18, a copy of this invoice relevant to the Kanga (DKGA724)GA724 Loader‑Myree [sic], Serial No 115367 appears at page 14 of the plaintiff's trial book of documents. I do not understand on the evidence at trial that the cost of the replacement machine is in issue. It is therefore that amount that the plaintiff seeks from the defendant by way of replacement cost for that particular machine. Counsel further advised the court that the plaintiff was not seeking interest on the replacement cost of the kanga. For these reasons counsel advised the court that the plaintiff was no longer seeking liquidated damages in the sum of $60,572.85 rather, the issues to be determined concerned the question of the amount of interest on unpaid fees for equipment hired by the defendant from the plaintiff and whether or not the defendant was liable to pay the plaintiff the sum of $27,842.72 being the replacement cost of the kanga.

The evidence

By way of background to this matter counsel for the plaintiff explained, and it was not in dispute, that a kanga mini‑loader track machine is similar to a stand‑on digger or excavator. Relevant to the issue before the court it was alleged that an order for hire of the relevant kanga machine to the defendant was placed on 3 November 2007 following which it was delivered, and at the time of delivery to the defendant it was alleged Mr Cummings advised he did not want insurance with respect to the kanga. What occurred and what was said at the time of delivery of that piece of equipment was a matter of dispute at trial, to which reference will be made later in these reasons. The plaintiff alleged that at that time Mr Cummings, the defendant, signed the relevant contract. The plaintiff further alleged that it had dealt with the defendant in relation to hiring various pieces of equipment over a considerable period of time, and on some occasions insurance cover for the equipment during the hire period was requested or taken out by the plaintiff on behalf of the defendant and at other times that did not occur. The plaintiff is a self‑insurer.
It emerged in evidence called on behalf of the plaintiff at trial that at the time of the hiring of the particular kanga on about 3 November 2007, the customer had an option of having insurance cover incorporated into the hire contract or arranging their own insurance cover for the period of hire. Insurance cover was relevant only in relation to the more expensive items of equipment, such as earth moving equipment like the kanga, but was not relevant to smaller less expensive items which the plaintiff had available for hire such as lawn mowers.
The primary case for the plaintiff at trial was that at the time the kanga went missing whilst in the possession of the defendant in early November 2007, there was no insurance coverage for theft because at the time of delivery the defendant indicated he did not want the plaintiff to organise such insurance coverage and that the defendant signed a document to that effect. This allegation is disputed by the defendant. The plaintiff also put its case on an alternative basis, namely that if it failed on its primary case and in the alternative if it was asserted the plaintiff should have insured the kanga for theft whilst it was in the possession of the defendant, then any such insurance coverage would be void on the basis that the plaintiff asserts the kanga was not stored by the defendant in a secure location, this it is submitted is contrary to the terms of the insurance in relation to the particular contract for the hire of the kanga by the plaintiff to the defendant.

Jesse Christides

Mr Christides has worked as the Myaree branch of the plaintiff's business for approximately eight years and for the last three years or so he has been manager of that particular branch. It is one of 10 branches of the plaintiff's business in Western Australia, there are other branches in suburbs such as North Perth, Mandurah, Midland, Balcatta and Cannington. As manager of the Myaree branch Mr Christides was engaged in a range of duties which involve dealing with customers and contracts as well as supervising staff members.
This witness gave evidence in some detail concerning a number of documentary exhibits contained in a book of trial documents filed on behalf of the plaintiff. For the purpose of putting into context the issues in this trial and the evidence it is necessary to turn to an examination of some of that documentation.
By way of background Mr Christides gave evidence explaining how generally a customer would or could hire equipment from the plaintiff. A customer can attend a branch office such as Myaree either personally or place an order hiring equipment over the telephone or by email. Generally the customer enquires as to whether the plaintiff has available a particular piece of equipment for example, a kanga, and then the sales person or employee handling the enquiry will check to ensure that the piece of equipment is suitable for the job the customer wishes to carry out. The customer will then be told the cost of hire of the piece of equipment and any associated costs, including how payment may be made. Contact details of the customer, if they are not already known, will be taken and that information is recorded. The hire booking details are placed into a computer and these include the date or dates of hire. Payment is usually by way of cash or credit card, although in relation to large pieces of machinery such as the kanga, the plaintiff only accepts credit card payments, or in the case of a regular customer, the cost can be placed on their account if they have such an account with the plaintiff.
Mr Christides further explained that if a customer arrives at the branch to collect the piece of hired equipment, the hire contract is printed out and if a credit card is being used full payment is made at the time. The customer then signs the contract which is in three parts. One relates to the contract itself and there are two sections relating to insurance in relation to the hire of the equipment. The particular hire contract used by the plaintiff contains standard terms and conditions which are printed on the front and reverse side of the document issued to a customer. If the customer attends personally then they are given a copy of the hire contract at the time of hire, or if it is a transaction conducted over the telephone or by email, the usual practice is to post the hire contract or a copy of it to the customer with the invoice. The invoice is given to the customer at the completion of the hire period when the equipment is returned, or it is posted to the customer after the return of the equipment.
Mr Christides' evidence was that he, in dealing with a customer relevant to the hire of equipment, always explained to the customer that the insurance is for theft only and not for damage to the equipment.
In looking at the front of the standard hire contract that was in use at the relevant time, of which there are numerous examples in the plaintiff's book of trial documents, there is provision for recording information relevant to insurance. Mr Christides explained that as to whether insurance is to be taken there are two boxes, one against the word 'Yes' and one against the word 'No', after which there is provision for the customer to sign or initial. As I understood the appropriate procedure, from Mr Christides' evidence, if a customer indicates they do not wish to take out their own insurance for theft a tick is placed against the 'No' box, whereas if a customer indicates that they want such insurance taken through the plaintiff then a tick is placed against the 'Yes' box. In this regard Mr Christides further explained that in relation to expensive equipment such as the kanga machine, a customer is not permitted to organise their own insurance unless they have a certificate of competency stating that the customer's insurance company will cover such machinery if it is stolen. If that is the case, a copy of the certificate of competency must be stapled or attached to a copy of the hire contract. He further pointed out that if a customer damages machinery on hire or it is damaged whilst in their possession, then the customer must pay for the cost of repairs, as the insurance in question covers theft only. In the event that a customer decides to take out such insurance offered by the plaintiff or in other words uses the plaintiff's insurance, then not only will that be recorded on the hire contract but it should also be reflected on the related invoice in the sense that the charge for such insurance is noted on the invoice and the customer must pay this additional charge.
In relation to insurance for theft of hired machinery, the situation existing at the relevant time in 2007 was that if the customer wished to insure the hired machinery against theft and was unable to arrange that through the customer's own insurance company, the plaintiff would insure the item and the customer would meet this additional cost. The other option was for the customer to arrange through their own insurer for the hired machinery to be insured against theft for the relevant period, but if it was a piece of machinery such as a kanga then the customer would have to produce a certificate of competency from their insurance company. It was Mr Christides' experience according to his evidence, that generally in matters involving hiring of machinery of this type, the plaintiff would arrange insurance with respect to theft as most customers did not have insurance policies covering the type of equipment in question.
Whilst a customer was given a copy of the hire contract at the commencement of hire if the customer physically dealt with the plaintiff, an invoice was only created at completion of the hire period and so would not be given to a customer either by handing it to them or by post until that time. Before that occurred the plaintiff also caused any machinery which had been hired to be visually checked upon its return to ensure that there was no damage to the equipment and where appropriate to ensure that the customer had refuelled the equipment before it was returned as this was required by the plaintiff as part of the hire conditions. Where a customer did not wish or was not in a position to return the hired equipment or machinery to a particular branch of the plaintiff's business personally they could, for an additional fee, arrange to have it collected by an employee of the plaintiff's business, or the customer had the option of making arrangements for a third party to return it on their behalf.
In referring to the hire contract Mr Christides' said that all branches of the plaintiff's business used the same standardised procedure and paperwork for the hiring of equipment and so therefore the Myaree branch did not adopt a different procedure from other branches of the business. The hire agreement conditions printed on the rear of both the contract of hire and the invoice do not specifically set out the terms of any insurance, but on reading those terms and conditions it is plain that if any loss or damage to equipment occurs the customer is liable for any excess, and further, that the customer will not be covered by insurance, if insurance is in place, in the event that the equipment is not securely stored whilst it is in their possession and on hire to them. Paragraph 3 of the hire agreement conditions deals with payment by the customer to the plaintiff. Paragraph 3.2 states:
Immediately on request by Kennards, the Customer will pay;
(a)the new list price of any Equipment which is for whatever reason not returned to Kennards (NOTE TO CUSTOMER: You are responsible for loss or theft of the Equipment).
In his evidence Mr Christides pointed out that at the relevant time in 2007 it was not compulsory for customers to have or take out insurance relevant to theft on machinery such as the kanga. Following that time and currently, although it is not clear as to exactly when the policy changed, such insurance is compulsory and a customer must organise insurance in relation to theft through the plaintiff and the cost of hire quoted includes the cost of that insurance. Alternatively, the customer can arrange such insurance themselves through their own insurer, providing they can produce a certificate of competency. The situation has therefore altered since some point of time in 2007 in that insurance for theft of equipment on hire is now compulsory whereas previously it was optional at the customer's discretion.
There was no dispute at trial that the defendant was a long time client of the plaintiff's business. The defendant's business regularly hired various items of equipment from branches of the plaintiff's business, although the bulk of those transactions involved the Myaree branch. The defendant in his evidence made it plain that he expended a considerable amount of money over the years hiring various items of equipment from the plaintiff. Exhibit 1 contained at pages 6 – 13 of the plaintiff's book of trial documents is a list of Kennards' accounts receivable in relation to the defendant's business and its hire transactions with the plaintiff's business covering the period 16 September 2002 ‑ 11 March 2008 and all relevant payments made by the defendant and his business to the plaintiff. That exhibit makes it plain that the defendant was a regular customer.
During the course of his evidence Mr Christides was taken to a number of documents in the plaintiff's book of trial documents and many of these subsequently became exhibits. The documents at pages 15 – 17 inclusive did not become an exhibit but were referred to by Mr Christides as an example of the paperwork in relation to the hire of machinery or equipment by a customer. The document at page 17 is the plaintiff's copy of the original contract of hire with the terms and conditions of hire printed on the reverse side. It shows the name of the contact with whom the customer dealt and in that instance it was Mr Christides dealing with the defendant's business. Mr Cummings was noted as the contact for the transaction which occurred in June 2007 and involved the hire of a large tandem trailer. Mr Christides' employee number appears on that document as well as the contact details of the hirer/customer, the period of hire, the customer account code and name of the person collecting the item of equipment if applicable, as well as the location or destination of hire. Mr Christides explained that each item of equipment hired by the plaintiff had its own unique number, being the plant number and that would also be noted in the documentation. The customer, or person collecting the piece of hired equipment or machinery, is required to sign for it as well as acknowledging the fact that appropriate protective equipment must be worn when equipment is hired. Examples of this appear on page 17 and there was no dispute that the defendant's signature or initials appear in several locations on page 17. The document on page 15 is the tax invoice relating to that particular hire transaction, it notes that the hire was completed, although there do not appear to be any signatures of any persons, including Mr Cummings, on that particular page. Page 16 is an example of what Mr Christides described as a checking document which is completed after an inspection of the hired item of equipment or piece of machinery when it is returned to the plaintiff. Information such as the date and time of return of the item as well as a description of the item and the name of the hiring party is included on that document. The employee who checks the document notes their employee number and any markings or damage relevant to the hired item are marked diagrammatically on the document.

Exhibit 3 is found at pages 24 – 26 of the plaintiff's book of trial documents. The hire contract for a kanga is found at page 25 and the customer is noted as the defendant's business, whilst Mr Cummings is given as the contact for the hirer. In this case the employee of the plaintiff dealing with that transaction at time of hire was a person called Terry, whom Mr Christides explained was second‑in‑charge of the Myaree branch. In relation to the issue of insurance there is a tick in the box next to the word "yes" under the notation 'Customer has his own insurance cover' and next to that there purports to be a customer signature. Mr Christides in relation to the relevant tax invoice at page 24 agreed that notwithstanding that notation, indicating that the customer, being the defendant, had not requested insurance be taken out with the plaintiff he appears to have been charged for insurance for theft in any event in the sum of $32. He could not explain that apparent anomaly. Mr Christides then went to exhibit 4, being pages 27 – 29 of the plaintiff's book of trial documents. Once more this documentation relates to the defendant's hire of a kanga machine in September 2007. On this occasion Mr Christides was the employee dealing with that particular hire transaction. On page 29, a copy of the hire agreement or contract under the notation, 'Customer has his own insurance cover' there is a tick against the 'yes' box and a customer signature next to that as well as on the left hand bottom corner of the document. Once again on viewing page 27 which is the relevant tax invoice for that particular hire transaction, notwithstanding that notation, the customer appears to have been charged by the plaintiff for insurance in the sum of $32 for a one day hire. Mr Christides was unable to explain how this occurred.
Very shortly after this transaction there was a similar hire agreement in the form of exhibit 5 found at pages 36 and 37 of the plaintiff's book of trial documents. Once more the defendant hired a kanga from the plaintiff and on this occasion an employee called Chris dealt with the matter. Mr Cummings was given as the contact for the defendant relevant to the transaction. On that occasion page 37 the hire contract under the notation, 'Customer has his own insurance cover' there is a tick against the 'No' box and what appears to be a customer signature on the same line. However, in handwriting, someone has noted, 'Trev not on site' which is obviously a reference to the defendant Mr Cummings not being on-site when the equipment was delivered. This therefore suggests that it is not Mr Cummings' signature on the document following the words 'Customer signature'. Mr Christides' explanation was as the defendant was not on-site at the time, the plaintiff simply provided insurance cover for the theft of the equipment. However, when one looks at page 36 being the relevant tax invoice for that transaction the defendant does not appear to have been charged by the plaintiff for that particular insurance cover.
Exhibit 6 found at pages 40 – 42 of the plaintiff's book of trial documents concerns a hire contract with the defendant for a kanga later in September 2007. The contract of hire on page 42 indicates that the customer has his own insurance cover and next to that appears a signature purporting to be that of the defendant who has also signed the bottom of the document. Once again however, the tax invoice for that transaction on page 40 indicates that the defendant was charged for insurance cover organised by the plaintiff in the sum of $64 being insurance at $32 per day.
Exhibit 7 which appears at pages 43 – 45 of the plaintiff's book of trial documents is a further hire contract with the defendant relevant to a kanga in September 2007. On that occasion the hire contract indicates that the customer does not have his own insurance cover however, on the corresponding tax invoice it appears that the plaintiff has not charged the defendant for insurance cover for theft on the machine. Exhibit 8 which is paperwork relevant to the hire of a kanga by the defendant in October 2007 has no indication of whether or not the customer has his own insurance cover and the hire contract has a note that the customer was not on-site at time of delivery, although there appears to be a signature on the contract next to the words, 'Customer signature'. In relation to the corresponding tax invoice for that transaction on page 50 it appears that the plaintiff did not charge the defendant for insurance cover for theft on that occasion. Exhibit 9 is paperwork relating to the hire of a kanga by the defendant from the plaintiff in late October 2007. On that occasion the query as to whether the customer has his own insurance cover is answered by a tick against the 'no' box, but in the corresponding tax invoice the plaintiff has not charged the defendant for insurance cover for theft. In exhibit 10 relating to a contract between the plaintiff and the defendant for the hire of a kanga in mid‑October 2007 whilst the indication is the customer has his own insurance cover the tax invoice corresponding to the hire contract suggests that the defendant was not charged by the plaintiff for insurance cover for theft in that transaction. The documentation in exhibit 11 with respect to a hire contract between the plaintiff and the defendant for a kanga at the end of October 2007 does not indicate whether the defendant as the customer had his own insurance cover or not. Further the contract is not signed or initialled. When questioned about this documentation, Mr Christides said that in dealing with the defendant over the hiring of various items of equipment, there were a number of different ways in which the hire was organised. If for example, the defendant was not on‑site at the time of delivery of the equipment by the plaintiff, then the item of equipment hired would be delivered to site in the defendant's absence and left in a safe location. If the equipment was a type which required keys to operate it then those keys would be removed and left in the air filter box of the equipment. In another situation if the equipment was ready to be returned to the plaintiff's premises and the defendant did not do so personally or did not organise for an employee to do so on his behalf, then the defendant would contact the Myaree branch and an employee of the plaintiff would organise with the defendant to attend the site in question and collect the equipment.
The paperwork for the hire of a kanga by the defendant between 29 and 30 October 2007 is contained in exhibit 12. That documentation indicates that the customer did not have his own insurance cover for theft however, the corresponding tax invoice indicates that the plaintiff did not charge the defendant for insurance cover for theft notwithstanding he did not have his own cover. Exhibit 13 is documentation relating to a hire contract with the defendant for a kanga between 23 and 30 November 2007. On that occasion he also hired a generator and jackhammer, all equipment to be delivered to a site in Armadale. The paperwork gives no indication as to whether or not on that occasion the defendant had his own insurance cover for theft, but the corresponding tax invoice indicates that the plaintiff charged the defendant for insurance cover for theft because on page 69 of the plaintiff's book of trial documents, there is a cross against the typed notation 'Medium asset insurance taken'. The defendant appears to have been charged at $15 per day for a period of four days resulting in a total charge of $60. This is not withstanding that the hire period appears to have been for seven days. When queried about this in his evidence Mr Christides said it was possible that the plaintiff charged for insurance cover for theft on that occasion because it appears the hired equipment was delivered to site and that no‑one was present on‑site at that time.
The foregoing hire contracts and related tax invoices, whilst certainly not covering every hire contract between the plaintiff and the defendant, in my view indicate that although the plaintiff had a general policy in relation to insurance cover for theft of particular types of machinery or equipment being taken out either through the plaintiff or organised by the customer, where it was required, that policy does not appear to have been applied consistently. Notwithstanding that however, it is very plain from the hire agreement conditions printed on the reverse of the hire contracts and related tax invoices in par 3.2(a) that the condition of any hire agreement was that the customer was responsible for the loss or theft of equipment.
Importantly at trial Mr Christides gave evidence concerning the particular hire agreement and transaction the subject of these proceedings. He was personally involved, according to his evidence, in that transaction which is reflected in documentation which appears at pages 3 – 4 of the plaintiff's book of trial documents in the form of exhibit 15. Mr Christides' evidence as to this particular hire transaction was that on Friday, 2 November 2007, he spoke to the defendant on the telephone in relation to the defendant's desire to organise for the hire of a kanga as well as a generator and jackhammer and to have the kanga delivered to a site in Fourth Street, Armadale the following morning being a Saturday. At that point in time according to Mr Christides' evidence, the defendant's account with the plaintiff was on hold due to non‑payment of monies owing to the plaintiff. As a result Mr Christides did up a cash docket relevant to the transaction as he had a discretion to do so. He told the court that the defendant eventually paid the outstanding debts to the plaintiff.
Mr Christides said in evidence that the defendant told him what time he wanted the equipment on‑site, which was the first thing Saturday morning and so Mr Christides went into work on the Saturday, although it was his day off and he loaded the equipment up and took it out to the site for the defendant. He explained that he did this because there were not enough staff available to perform the task and so he went into work and delivered it personally to the site. It was Mr Christides' clear evidence, which was not shaken in cross‑examination, when he arrived at the site he unloaded the kanga and that the defendant was on‑site at the time. Mr Christides had the defendant sign the hire contract after which time Mr Christides left the site, with the defendant advising that he would call the plaintiff when he was ready for the equipment to be picked up. The site on Mr Christides' recollection was fenced off by temporary fencing in the form of portable concrete panels which lock together. There were some gates at the side as well as what appeared to be offices and temporary toilets. Exhibit 17 is a diagram of the site being the Doric building site on which a shopping centre and car park area were being constructed. Mr Christides prepared this document whilst giving his evidence and marked various areas on it. He told the court that the only security equipment he saw on‑site at that time was the temporary fencing, although he agreed in cross‑examination that the site appeared fairly secure albeit in his opinion the temporary fencing was not, as he described it, 'foolproof'.
The witness said in his evidence that he vividly recalled asking the defendant if he wanted insurance, to which Mr Cummings replied, 'no' and that is why in exhibit 15 on page 3 of the plaintiff's book of trial documents Mr Christides said that he ticked the box against the word 'no'. He did this albeit that the question appears under the heading of 'Customer has his own insurance cover'. Mr Christides explained this anomaly by saying that he believed in ticking the box against the word 'no' he was recording the advice of the defendant that the defendant did not want the plaintiff to organise insurance cover for theft of the equipment. According to Mr Christides after this occurred the defendant signed the documentation appearing on page 4 in exhibit 15 using a pen supplied by Mr Christides and further, that the defendant signed that document in two places. When queried about the words appearing on page 3 in exhibit 15 namely 'Doric site' he told the court that he believed this was the writing of the employee Terry, the second‑in‑charge at the Myaree office. The word 'stolen' which appears next to those two words is Mr Christides' writing and he said he wrote that word on the document after he learned that the kanga had been stolen. On page 3 Mr Christides also wrote 'Gen Set at Joel St' meaning that the defendant had advised he was using part of the hired equipment at a nearby site in Joel Street and Mr Christides believed that he noted this on Saturday, 3 November at the time of delivery of the equipment.
Further writing which appears on page 3 was something about which Mr Christides speculated in terms of its meaning but in the end he told the court he was not sure what the words meant. Whilst he admitted that the notation '9th – 13th' was in his writing on page 3 of exhibit 15, Mr Christides did not now recall what that meant or when that notation was written by him. On page 4 of exhibit 15 the words 'jackhammer ‑ three days' is again in Mr Christides' handwriting and he said he believed he wrote those words after delivery when the jackhammer was returned to the plaintiff to ensure that the defendant was only charged for three days hire of the jackhammer being Saturday, Sunday and Monday with the return of that item on the Tuesday. A further notation on that page 'chisels – 32' referred, according to Mr Christides, to the number of chisels used. The words 'wide chisels 62' is also in Mr Christides' writing and he said that the figures refer to the cost of hire of chisels for three days.
In his evidence Mr Christides referred to a document on page 5, being exhibit 16 and said he thought the defendant phoned the Myaree branch office late on Tuesday, 6 November to organise for the equipment to be collected from site, but it was too late for it to occur on that day. It was Mr Christides' understanding that an employee of the plaintiff's business went to collect the equipment on Wednesday, though Mr Christides himself was not in the office that morning as he was participating in a training course in Balcatta until midday.
The document comprising exhibit 16 was described by Mr Christides as an overdue payment slip and he said it was used in the plaintiff's office on occasion for recording the contents of conversations with customers. The writing in exhibit 16 is Mr Christides' writing and he confirmed that the number '4' which appears on the document is his employee number. It was his recollection however, that the information he recorded in exhibit 16 was conveyed to him by Terry, his second‑in‑charge at the office. Against the date of 6 November the words, 'Trevor phoned to off‑hire mini‑loader. Pick up tomorrow 7th' are recorded. Beneath that against the date 7 November, Mr Christides has recorded 'Mini‑loader not there. Trevor says he off‑hired it on Monday. No‑one took a call from Trev'. According to Mr Christides the mini‑loader was off‑hired on Tuesday, rather than Monday as reflected in his earlier evidence.
When Mr Christides learnt that the kanga was missing he contacted his boss, Mr Richard Lawrence, to request him to further investigate the matter. On that same day Mr Christides' evidence was that he telephoned the defendant Mr Cummings and spoke to him. He was told the kanga had been left under the car ramp at the Doric building site. As the machine could not be located subsequently a report was made to police by Mr Christides relevant to the stolen kanga. He also was advised by the general manager of the WA region for the plaintiff's business that the defendant would have to be charged for the replacement cost of a new kanga. This reflected par 3.2(a) of the terms and conditions printed on the reverse side of the hire contract and tax invoice. Mr Christides maintained that in 2007, when he discussed the issue of insurance with a customer, he would advise that insurance if taken out covered theft only and not damage whilst the equipment was under hire. He further said that if a customer hired equipment overnight it was the responsibility and obligation of the customer to ensure that the equipment was kept in a secure location for insurance coverage purposes because if that did not occur then any insurance cover, if taken out, would be void. He said a customer would be advised of this policy when the customer first dealt with the plaintiff. If they were a regular customer then they would not be given this information in detail on each subsequent occasion when they hired equipment from the plaintiff, although if the customer asked any questions regarding insurance cover they would certainly be answered on any occasion by the employee of the plaintiff with whom they were dealing.
In cross‑examining Mr Christides, Mr Cummings the defendant referred him to page 69 of the plaintiff's book of trial documents relevant to the hire of a kanga, putting to Mr Christides that the plaintiff had taken the liberty of insuring the equipment for theft, albeit there is no indication on page 70 of the book that the customer had his own insurance cover or not and there is no customer signature on that page. In any event, page 69 indicates that the plaintiff charged the defendant for insurance cover relevant to theft on that occasion. The defendant asserted that he was of the understanding that he was never covered for damage to equipment but he was always covered by insurance for loss or theft. Mr Christides disagreed with that assertion saying that coverage for loss or theft only occurred if the customer chose to take out relevant insurance through the plaintiff or where appropriate the customer organised such insurance through their own insurance. Further, Mr Christides said he was not in a position to agree with the defendant's proposition that on the building site in question Doric had 24 hour security in place. Mr Christides did concede that between 3 and 23 November in 2007 at some point there were changes made to the template for the hire contract and tax invoice with respect to adding or expanding on material in relation to insurance and conditions of insurance. This occurred pursuant to instructions from the plaintiff's head office.

Richard Lawrence

Mr Lawrence gave comparatively brief evidence advising the court that he had worked for the plaintiff for about eight years and at one point was the manager at the Myaree branch. In November 2007 he was an area manager. On 7 November 2007 he attended the Doric building site in order to see if he could locate the kanga but was unable to do so. When he visited the site for that purpose he said he saw no security in the form of portable fencing. It was some years later in January 2010 that he returned to the site and took three photographs which appear as exhibit 20 in the plaintiff's book of trial documents. As I understood the evidence the actual structure and layout of the car ramp area and undercroft did not change between November 2007 and January 2010, the only change was that the area was completed or finished off by bitumising the undercroft and also the moving of building rubble and such like. Whilst Mr Lawrence was at the Doric building site on 7 November 2007 he said the defendant arrived and advised Mr Lawrence that as far as the defendant was aware the plaintiff would have to address the problem because it should be covered under insurance. Mr Lawrence said he informed the defendant that was not necessarily the case. His recollection in looking at exhibit 17 was that the site on the far left as one looks at that plan was not depicted, in the sense that it was off the plan. The site of the Doric office that Mr Lawrence said he attended on that occasion was about a kilometre away from the car bay and car ramp area as he had to drive there. Like Mr Christides, this witness said he was not aware of there being any form of 24 hour security on the Doric building site when he attended there. He searched for a security guard at the time but could not locate one.

Mr Cummings

The defendant Mr Cummings in his amended defence, which appears to be undated, pleaded:
1.Stolen equipment insurance issue.
2.Equipment stolen from building site with 24 hour manned security.
3.Kennards interviews security people and well know that it is an insurance issue. Nothing to do with Trevor Cummings.
The defendant told the court in reference to exhibit 15, which is critical documentation with respect to the issues at trial, that in relation to page 4 the initials and signature were his but in relation to the hire contract on page 3 it was not his signature against the words 'Customer signature' and he did not recognise the writing. That evidence is in distinct contrast to that of Mr Christides. Mr Cummings' recollection was that the kanga the subject of the hire in dispute was hired over the telephone by him and he requested it be delivered to the Doric building site but he did not recall to whom he spoke at the time. He said he was not present at the site to take delivery of the kanga and therefore could not have and did not sign the hire contract appearing on page 3 of the plaintiff's book of trial documents as part of exhibit 15. He said he was not on the building site either on Saturday when Mr Christides in his evidence said he and Mr Cummings had a conversation nor was he present on‑site on the preceding day. The defendant maintained that he always understood that the plaintiff covered all hired equipment with their own insurance, I understood this to be a reference on the defendant's part to insurance covering theft as well as loss and damage. He said that he never knew at any time that he had an option to take out his own insurance cover. This again is in distinct contrast to Mr Christides recollection that when a customer first begins dealing with the plaintiff the issues and options in relation to insurance coverage are explained to and discussed with the customer. Further, Mr Cummings said that during the four to five years in which he had been a regular customer dealing with the plaintiff he never took out his own insurance cover in relation to any item including insurance for damage or theft to hired equipment as he thought that insurance cover was either incorporated into the contract of hire or that the plaintiff insured any hired equipment automatically. This would appear to be at odds with at least some of the ticks placed on various contracts of hire between the plaintiff and defendant in particular where there is an indication that the plaintiff was not going to organise insurance cover for theft on behalf of the defendant.
It would appear from the defendant's evidence that at one point he did discuss the issue of insurance with his insurance company because he told the court that as a result of that discussion his understanding was that any equipment not owned by Global Garden Care could not be insured by that insurance company. It is difficult to understand why the defendant would have such a discussion with his insurance company if it was the case that he believed at all times that he was covered by the defendant's insurance for any event arising in relation to theft, loss or damage to hired equipment. The defendant's observations according to his evidence were that in November 2007 the Doric building site had 24 hour security in the form of security staff who were on‑site as well as cameras fitted at various locations. This evidence was once again in distinct contrast to that of both Mr Christides and Mr Lawrence in that neither of those two witnesses on attending the building site, in the case of Mr Christides at the time when he said he delivered the hired equipment, and in the case of Mr Lawrence the following Wednesday, saw any security staff on‑site. It was not put to either of those witnesses that there were cameras fitted at various locations in the sense of it was not suggested they may have seen such items. In any event there was no security footage referred to in the course of the trial nor was there any evidence called from any security firm that may have been providing such a service at the relevant time.
Mr Cummings also took issue with Mr Christides' recollection that there was portable security fencing in the area at the relevant time. It was the defendant's evidence that there was permanent iron grey fence, as depicted in the photographs in part of exhibit 20, which ran on Church Street from Fourth Street to Whitehead Street, in essence right around the shopping centre during the entire construction period, which included November 2007. Therefore he suggested that the kanga was in a secure and confined area at all times. Mr Cummings' evidence was that when he last saw that particular piece of machinery it was underneath a ramp on the bottom of the car park area as that area is depicted in the photographs in exhibit 20. In relation to the grey iron fencing, part of which can certainly be seen in the photographs in exhibit 20, it must be remembered that these photographs were taken by Mr Lawrence in January 2010 and therefore they do not establish, without further evidence, that the fencing depicted was present in that form in November 2007.
In the end the defendant disagreed with, in the sense that he contradicted Mr Christides' evidence concerning the events of the Saturday morning when Mr Christides told the court that he personally delivered hired kanga equipment to the Doric building site and had a discussion at that place with the defendant, which included a specific discussion about whether or not the defendant had his own insurance cover or not. In relation to the exhibit 16, to which Mr Christides referred in his evidence, the defendant said that as far as he could recall he telephoned the plaintiff's Myaree branch office on Monday which would have been 5 November 2007 to off‑hire the kanga. That is at odds with the note made by Mr Christides on exhibit 16 which indicates that call was received on Tuesday, 6 November and further there is a note, based on information which was relayed to Mr Christides, that in essence no‑one at the office took a call from the defendant.

Legal principles and findings on the evidence

Reference has been made to the terms and conditions printed on the back of both the contracts of hire and related tax invoices. It is not necessary to reproduce each individual condition or obligation contained in pars 1 – 10 inclusive of the hire agreement conditions but there are some which are particularly appropriate to refer to in the context of the issues in this trial.
In par 1 is a 'Note to customer' which states 'You are responsible for the Equipment until it is back in the possession of Kennards, even after obtaining a Customer Pick Up Number', The contents of par 3.2(a) have been referred to earlier in the course of these reasons. Paragraph 3.2(i) stating 'A late payment fee calculated daily at 10% per month on all unpaid Charges' is a condition or term of the hire agreement. In par 5 at 5.9 it is stated 'The customer will NOT lose possession of the Equipment'. Paragraph 7 which deals with Breach of Hire Agreement by Customer states:
If the Customer breaches any clause whatsoever of this Agreement, or becomes bankrupt, insolvent or ceases business, then;
7.1Kennards shall be entitled to:
(a)terminate this Agreement, and/or
(b)sue for recovery of the Charges, and/or
(c)repossess the Equipment (and is authorised to enter the Customer's premises to do so).
In my view the contents of those terms or conditions of contract are very clear. It is difficult to understand, particularly in the light of the wording of par 3.2(a) and the note in that paragraph, that a customer such as Mr Cummings, the defendant, could believe or be under the impression that he was covered by the defendant's insurance for any event in relation to theft, loss or damage to hired equipment.
The evidence as to the circumstances of the delivery of the kanga to the Doric building site on Saturday, 3 November 2007 are of central importance in this trial. I accept the evidence of Mr Christides as to those events rather than the evidence of the defendant Mr Cummings. In my view Mr Christides, who remained firm in his recollection of the relevant events, had good reason to remember that particular incident. In his evidence he used the word 'vividly' in describing part of his recollection and further remembered that being a Saturday it was his day off. He actually came into work to ensure that the hired kanga was delivered to the Doric building site, as the plaintiff's Myaree branch was short staffed. He was positive that the defendant, Mr Cummings, was on‑site even to the point of recalling that in order to sign the contract of hire the defendant borrowed or used a pen that was in Mr Christides' possession. He gave positive evidence that he inquired of Mr Cummings on that occasion if he wanted insurance, which in the circumstances could only be a reference to insurance for theft or loss of the equipment and the defendant replied, 'No'. I accept that this explains as a matter of logic why Mr Christides placed a tick against the relevant part of the hire contract next to the word 'No'. Although the defendant says that it is not his signature or initials on the relevant document it was not put to Mr Christides that he had dealt with someone else on that occasion nor was there an alternative scenario put to him in cross‑examination as to how the initials came to be on that document. It did not appear to me that Mr Cummings had a particular reason to remember the date of delivery or that occasion and in fact he was not particularly clear in his recollection as to the arrangements regarding that particular hire transaction, in the sense of he could not remember who he spoke to on the telephone in order to arrange the hire. Mr Christides however recalled that he was the employee dealing with that particular aspect of the matter.
This is not a matter where the plaintiff misrepresented the effect of the document. I accept Mr Christides' evidence that when a customer, such as the defendant, first began dealing with the plaintiff regarding hire of equipment or machinery, the situation relevant to insurance was explained to the customer. There is no evidence which would sustain a claim that for some reason this was never done in relation to the defendant Mr Cummings. I accept the submission on behalf of the plaintiff that the terms and conditions of the hire in relation to the kanga on that occasion were accepted by the defendant when he placed his initials on page 3 of exhibit 15. I therefore reject the contention or evidence on behalf of the defendant that the initials on that document are not his. As a result the defendant is bound by the terms of that particular contract whether or not he read it and whether or not he knew of its contents; L'Estrange v F Graucob Ltd [1934] 2 KB 394.
In any event this is not a situation where the defendant had not had any prior dealings in hiring equipment and machinery from the plaintiff. On the defendant's own evidence, which is supported by a significant amount of documentary evidence, he had dealt with the plaintiff over a number of years and was a frequent and long time customer. There is no suggestion that on the occasion in question the plaintiff used different or unusual documentation in relation to the hire contract with the defendant. On each of the 44 occasions, being 44 separate hire contracts which the plaintiff and defendant entered into between 26 June and 7 December 2007, the terms contained in each were printed on the back of the hire contracts and the company invoices provided to the defendant. This is an alternative basis upon which the plaintiff submits that the terms were sufficiently brought to the defendant's attention, notwithstanding that I find they were accepted by him by virtue of his initials on the relevant document in exhibit 15 against the background of the discussion he had with Mr Christides on the Doric building site when the machinery was delivered. That is perhaps the most obvious way in which terms are incorporated into a contract and, in this case, it was accepted by the defendant in placing his signature on the document. I do not find that it was a case where he did so unaware of what those terms were, by virtue of his long standing business dealings in hiring equipment from the plaintiff. In that sense a submission made on behalf of the plaintiff, albeit that I find the defendant signed the hire contract being exhibit 15, has merit in that this is a set of circumstances whereby the defendant had been dealing with the plaintiff relevant to the hiring of equipment and machinery on numerous occasions between 2002 and the disputed transaction in 2007. It is the case that not only were the terms printed on the back of each hire contract entered into by the defendant and each relevant tax invoice, but insofar as I understand the evidence, the terms and conditions of hire were essentially the same throughout that period; J Spurling Ltd v Bradshaw [1956] 1 WLR 461.
In my view this is not a case of an onerous exemptive provision which had to be brought to the notice of the party against whom the provisional provisions were to be enforced as in Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 661. In any event I find that not only by virtue of the signing of the hire agreement by the defendant, but also by virtue of the long history of dealing the defendant had with the plaintiff regarding the hiring of equipment and machinery that the provisions of insurance including insurance for theft or loss of machinery had been conveyed to the defendant. For these reasons it is not necessary to consider and make findings in relation to the alternative basis of the plaintiff's claim that if it were to be found that the plaintiff should have insured the kanga, which I reject, then such insurance for theft would be void in any event because the defendant stored the kanga in a location which was not secure contrary to the conditions of the hire contract.
There remains the issue as to the amount of interest payable by the defendant on the outstanding equipment hire fees which have been paid to the plaintiff by the defendant. I accept the submission on behalf of the plaintiff that interest should be calculated pursuant to the contracts in question at 10% per annum in the manner claimed by the plaintiff on the basis of the term in the hire contract in par 3.2(i) which states that 'A late payment fee is to be calculated daily at 10% per month on all unpaid Charges'.
In view of the above findings there will be judgment for the plaintiff in the sum of $61,015.40. This comprises the sum of $26,872.85 relevant to the amount of outstanding equipment hire fees which have been paid by the defendant to the plaintiff, interest on that sum in the amount of $6,299.80 and finally, the amount of $27,842.75 being the replacement cost of the new kanga to replace the stolen kanga as evidenced in exhibit 18.