Lenoxx Electronics (Australia) Pty Ltd v ADSone Group Pty Ltd
[2021] VCC 656
•25 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-01798
| Lenoxx Electronics (Australia) Pty Ltd (ACN 055 375 150) | Plaintiff |
| v | |
| ADSone Group Pty Ltd (ACN 142 455 007) | Defendant |
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JUDGE: | Her Honour Judge Brimer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 January, 19 March 2021 | |
DATE OF JUDGMENT: | 25 May 2021 | |
CASE MAY BE CITED AS: | Lenoxx Electronics (Australia) Pty Ltd v ADSone Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 656 | |
REASONS FOR JUDGMENT
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Subject: CONTRACTS
Catchwords: Contract for sale of goods – Hand sanitiser – Contractual arrangements – Construction of contract – Express terms – Whether delivery of goods effected in China or Australia – Implied terms – Whether seller required to procure documentation necessary for transportation of goods from China to Australia – Business efficacy – General duty of co-operation – Agency – Loss and damage
Legislation Cited: Customs Act 1901 (Cth) s 181; Goods Act 1985 (Vic) ss 34, 35
Cases Cited:Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441; BP Refinery (Westernport) Pty Ltd v Hastings SC (1977) 180 CLR 266; Butt v M’Donald (1896) 7 QLJ 68; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising [1975] VR 607; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; He v Huang (No 2) [2017] VSCA 249 (29 November 2017); Kraguljac v A& B Developments Pty Ltd (No.2) [2012] SASC 1; Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286; Ryan v Textile, Clothing & Footwear Union of Australia [1996] 2 VR 235; Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596; Simcevski v Dixon [2017] VSC 197; Wolfe v Permanent Custodians Ltd [2013] VSCA 331
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ravech | Rotman & Morris |
| For the Defendant | Mr J D McKay | De Wet Partnership Solicitors |
HER HONOUR:
The claim
1By Writ and Statement of Claim dated 24 April 2020, Lenoxx Electronics (Australia) Pty Ltd (Lenoxx) claims $125,400, being the price of 12,000 units of hand sanitiser 500ml bottles (the goods) it alleges it supplied and delivered to Adsone Group Pty Ltd (ADSone), together with interest and costs. Lenoxx contends the goods were delivered by making them available for collection by ADSone from Lenoxx’s supplier’s factory in Ningbo, China. The goods were collected by or on behalf of ADSone and accordingly, ADSone is liable to pay the contract price.
2ADSone contends that Lenoxx was obligated, but failed to deliver the goods to Australia. Further, it breached an obligation to procure all documentation necessary in order to effectuate the transportation of the goods from China to Australia. The goods were not transported to Australia and ADSone is not liable to pay the price.
3ADSone counterclaims for loss it claims to have suffered as a consequence of Lenoxx’s failure to deliver the goods to Australia or secure the necessary documentation for the transportation of the goods to Australia. ADSone could not fulfill an order for 10,000 units of hand sanitiser from a third party, ‘Life Without Barriers’ (LWB) (the LWB contract).
4In summary, I find that it was an express term of the contract that the goods were to be delivered by making them available for collection by ADSone from Lenoxx’s supplier’s factory in Ningbo, China. I am not satisfied there was an implied term that Lenoxx procure all documentation necessary in order to effectuate the transportation of the goods from China to Australia as contended for by ADSone. Accordingly, for the reasons set out below, I find for the Plaintiff. The counterclaim is dismissed.
The parties
5Lenoxx is an importer of electronic products and consumables from China to Australia for wholesale and retail sale. Eli Marcus (Mr Marcus) is a director of Lenoxx.
6ADSone operates in the fields of transportation, logistics and international trade. Sagi Simchon (Mr Simchon) is a director of ADSone.
7At trial, Mr Marcus and Mr Simchon gave evidence. Glyn Wright (Mr Wright), Transportation Manager, iCumulus Global Express (iCumulus)[1], and Lori Nicholls (Ms Nicholls), COVID-19 Procurement and Logistics Lead for LWB, gave evidence for ADSone.
[1] Mr Simchon gave evidence that ADSone and iCumulus are associated entities, sharing an office and
resources. Mr Simchon is a managing director for ADSone and iCumulus.
Background
8On 24 March 2020, Mr Marcus sent a text message to Mr Simchon at 10.21am in which he asked Mr Simchon to call him.
9Later that day at 4.22pm, Mr Marcus spoke to Mr Simchon by mobile telephone and said that he had been informed by a business associate that Mr Simchon was looking to buy some hand sanitiser to fill an order. Mr Simchon confirmed that was correct and said that ADSone wanted 12,000 bottles of 500ml hand sanitiser. Mr Simchon asked Mr Marcus for the price and Mr Marcus told him that the price was $9.50 excluding GST. Mr Marcus said he had a container of 500ml bottles available at his supplier’s warehouse in China (the large container) from which he could supply ADSone with 12,000 bottles.
10The rest of the conversation is in dispute. Mr Marcus gave evidence that:
(a) he told Mr Simchon that he could supply ADSone with a 12,000 bottles within two days;
(b) Mr Simchon asked whether Mr Marcus could arrange airfreight from China to Australia and Mr Marcus said “no”. Mr Marcus said he would not do it because the cost of airfreight was increasing every day and he did not know whether airfreight would even be possible “because DHL had just returned a shipment to my supplier as it was no longer transporting dangerous goods by air”; and
(c) Mr Simchon said he had a charter flight arranged to leave Shanghai that Sunday and that he would get “my guy” Mr Wright to contact Mr Marcus and make arrangements to collect the goods and put them on his charter flight. Mr Marcus said “okay” and confirmed that the goods would be available from his supplier’s factory within two days.
11Mr Simchon denied that he asked Mr Marcus if he could arrange airfreight from China to Australia. Mr Simchon gave evidence that:
(a) he told Mr Marcus he would purchase the goods, but wanted to assist Mr Marcus to bring them to Australia because he did not think Mr Marcus would be capable of doing so;
(b) he offered to bring the remainder of the large container to Australia with his airfreight;
(c) Mr Marcus asked for a quote on how much that would be and Mr Simchon told him one of his managers would contact him in the morning to provide him with additional information;
(d) he made no reference to a charter flight; and
(e) there was no discussion around timeframes for completion or for delivery — two days was not part of the discussion.
12For the reasons set out below, I prefer the evidence of Mr Marcus as to the content of the conversation.
13Shortly after the phone conversation, at 4.30pm on 24 March 2020, Mr Wright called Mr Marcus from his mobile phone.
14At 8.18pm that day, Mr Marcus sent a text message to Mr Simchon:
‘‘Air freight is a lot so I’m not going to do it. Can you confirm you want 12000 Air freight and I’ll take them out of the container.’’
15At 8:20pm, Mr Simchon replied:
“Confirmed, we want 12,000 units of 500ml at $AUD9.5 local costs, we will cover airfreight costs”
16At 8.21pm, Mr Marcus replied:
“Done $9.50 ex gst”
17At 8.21pm, Mr Simchon replied:
“Confirmed, [words in Hebrew]”[2]
[2] Mr Marcus gave evidence that the words in Hebrew meant “Thanks very much”. No issue arises in
respect of these words.
18At 8.23pm, Mr Marcus replied:
“Ok”
19On 25 March 2020, Mr Marcus sent a text message to Mr Simchon at 9.14am:
“Name and address and email of where to send invoice?”
20Mr Simchon replied at 9.42am:
“ADSone, our address, [email protected]”
21Mr Marcus replied at 2.14pm:
“Send invoice to Lara. Cod please
Goods r ready y in China. I sent Glen he after a and number to pick them up. It’s in Ningbo so if they charge u more for the pick up I will pay for that.
Please arrange payment to us”[3]
[3] Mr Marcus gave evidence of typographical errors in the text message. The text was intended to read
“Sent invoice to Lara. COD please. Goods are ready in China. I sent Glen the address and number to pick them up. It’s in Ningbo. So if they charge you more for the pick‑up, I will pay for that. Please arrange payment to us.” No issue arises in respect of the typographical errors.
22On 25 March 2020, instead of taking the goods out of the container, Mr Marcus placed a separate order of 12,000 units of hand sanitiser with his supplier, Wise Royal Industrial Limited (Wise Royal). Wise Royal issued an invoice to Lenoxx for the goods (the Wise Royal invoice).[4]
[4] CB 42. The invoice was dated 25 March 2018. The parties agreed this was an error and it ought to
have been 25 March 2020, however Mr McKay challenged Mr Marcus in cross examination, putting to him that he did not receive the invoice on 25 March 2020. For the reasons set out below, I accept that Mr Marcus had the Wise Royal invoice in his possession on 25 March 2020. The invoice was paid by bank transfer.
23On the same day, 25 March 2020:
(a) at 11.08am, Lenoxx emailed a tax invoice for 12,000 units of hand sanitiser to ADSone;[5]
(b) at 1.17pm, Mr Marcus sent an email to Mr Wright confirming that the goods were ready for collection from the factory in Ningbo, China;[6]
(c) at 3.27pm, Mr Wright advised Mr Marcus, copying in Mr Simchon, that he made a booking with Wise Royal’s factory in Ningbo and was waiting on confirmation of booking “with time and date for collection to be done this week, I will then keep you posted”;[7] and
(d) LWB placed a purchase order with ADSone for 10,000 units of hand sanitiser in the sum of $308,000 including GST.
[5] CB 221-223.
[6] CB 149.
[7] CB 47.
24Between 25 and 26 March 2020, Mr Wright and Mr Marcus communicated regarding a separate order from another supplier in Guangdong, China (the Guangdong order).
25On 26 March 2020, Lenoxx paid Wise Royal for the goods.[8]
[8] CB 43.
26On 27 March 2020, Mr Marcus sent Mr Wright two text messages at 4:23pm and 4:39pm:
“No one has rung Matthew??”[9]
“Could you call me please with an update. I’m starting to get nervous.”
[9] Mr Marcus’ contact for Wise Royal.
27On 30 March 2020, Mr Wright exchanged emails with Warren Angus (Mr Angus) of Kerry Logistics regarding shipping the goods (together with K95 masks, not associated with Lenoxx) by airfreight from Shanghai. At 6.45pm Mr Wright emailed Mr Angus “please book in for us for the 3rd April into Sydney both the sanitiser and masks.”[10]
[10] CB 68.
28On 31 March 2020:
(a) at 12.25pm, ADSone[11] advised Ms Nicholls of LWB that “we will need to secure a 50% deposit for the hand sanitiser on Friday…”.[12] This requirement was rejected by LWB at 1.21pm;[13]
(b) Mr Angus emailed Mr Wright at 2.23pm (4:23pm NZ time) sending an updated quote showing the two shipments split out (masks and hand sanitser) and attaching a customs authority form for Mr Wright to complete “so we can customs clear.” Mr Wright requested a copy of the commercial invoice and “Re our discussion, can you check if the consignee will pay half of the air freight cost up front (before departure) and the rest based on COD?”;[14]
(c) at 2.59pm, Mr Mauff advised LWB that the 50% deposit was still required. At 5:02pm, LWB expressed concern that the committed delivery date had passed and ADSone was now seeking a 50% deposit contrary to what had been committed to. At 5:57pm, Mr Mauff asked LWB to confirm if they wished ADSone to proceed with the shipping of the freight or abandon the goods:
“We understand LWB’s position however these are not normal times… We need an answer today to secure the current pricing for freight because tomorrow it may very well double.”[15]
(d) at 5.34pm, Mr Wright emailed Mr Marcus attaching a customs clearance authority:
“we need this form completed for the airline to clear the goods on arrival on your behalf as import owner of the goods.”[16]
[11] Through email from Mr Andrew Mauff.
[12] CB 87-88.
[13] Ibid.
[14] CB 68.
[15] CB 83-86.
[16] CB 75.
(e) at 6.11pm, Mr Marcus emailed Mr Wright with the signed customs clearance authority;[17] and
(f) at 8.31pm, Mr Wright emailed Mr Angus with the signed customs clearance authority. At 8.40pm Mr Angus acknowledged receipt and asked “did you get the other part to my email?”.[18]
[17] CB 79.
[18] CB 80.
29On 1 April 2020:
(a) at 9.56am, Mr Wright advised Mr Angus of a number of matters including that neither the seller nor the purchaser would pay 50% of the airfreight costs upfront.[19] Mr Angus responded by asking Mr Wright if he had a copy of the commercial invoice yet;[20]
[19] CB 67.
[20] CB 67.
(b) at 10.21am, Mr Wright emailed Mr Marcus; “Do you have the commercial invoice for export required by the Airline?”;[21]
[21] CB 97.
(c) at 10.33am, Mr Marcus emailed Mr Wright “Will this do” with an attached tax invoice for the goods on Lenoxx letterhead;[22]
[22] CB 99 and101.
(d) at 10.41am, Mr Wright emailed Mr Angus with the commercial invoice provided by Mr Marcus at 10:33am. Mr Angus responded “thanks but we need the vendors commercial invoice for documentation purposes out of CN”;[23]
[23] CB102.
(e) at 10.54am, Mr Wright emailed Mr Marcus; “Thanks but we need the vendor’s commercial invoice for documentation purposes out of CN”;[24]
(f) at 11.13am, Mr Marcus emailed Mr Wright a revised document titled commercial invoice on Lenoxx letterhead;[25]
(g) at 11.42am, Mr Mauff emailed LWB requesting an urgent response whether LWB would abandon the goods as they needed to pay the carrier upfront before they allowed the freight;[26]
(h) at 12.03pm, LWB wrote to ADSone that “at this time we will not be proceeding with the purchase of the hand sanitiser”;[27]
(i) at 1.16pm, Mr Wright emailed Mr Marcus that the dangerous goods documents from Lenoxx’s supplier had not been supplied and would not be completed for 24-hours, that they “had to cancel uplift for tomorrow”, that the change in airfreight rates made the deal completely uncompetitive which Mr Marcus would need to discuss with Mr Simchon directly and that the cargo was sitting in the bonded warehouse in Shanghai;[28]
(j) at 1.51pm, Mr Marcus responded that Lenoxx had fulfilled its obligations and expected payment in full; and
(k) at 2.11pm, Mr Marcus emailed Mr Wright copying in Mr Simchon noting payment of $125,400 now due “as per our agreement of COD perms (sic).”
(l) at 2:44pm, Mr Wright emailed Mr Marcus and Mr Simchon:
“I have just been advised by our customer that due to none (sic) delivery this week they have now cancelled the order of this product but also the other products we were to deliver to them over the weekend…”
[24] CB 99.
[25] CB 105.
[26] CB 83.
[27] CB 82.
[28] CB 106.
30A series of emails followed between the parties disputing the terms.
Contractual arrangements
31It is common ground that the contract is constituted by:
(a) the telephone conversation between Mr Marcus and Mr Simchon on 24 March 2020 (the phone conversation); and
(b) the series of text messages commencing 24 March 2020 and concluding 25 March 2020 between Mr Marcus and Mr Simchon (the text messages).
Issues for determination
32The following are the agreed issues for determination:
1. What were the terms of the contract between the parties?
(a)Was the plaintiff to effect delivery of the goods by making them available for collection by the defendant at the plaintiff’s supplier’s factory in Ningbo, China or alternatively by transporting them from China to Australia by airfreight?
(b)Was the plaintiff required to procure the documentation necessary to effectuate the transportation of the goods from China to Australia?
2. Was Glyn Wright the agent of the plaintiff or the defendant?
3. Is Lenoxx liable on the counterclaim, and if so, for how much?
Issue 1: What were the terms of the contract between the parties?
1(a) Was the plaintiff to effect delivery of the goods by making them available for collection by the defendant at the plaintiff’s suppliers factory in Ningbo, China or alternatively by transporting them from China to Australia by airfreight?
33Lenoxx contended the contract between the parties contained the following express terms:
(a) Lenoxx was to supply and deliver to ADSone, and ADSone was to purchase the goods for the price;
(b) Lenoxx was to deliver the goods to ADSone by making the goods available for collection by ADSone at Lenoxx’s supplier’s factory in Ningbo, China and
(c) ADSone would pay the price for the goods upon collecting them from Lenoxx’s supplier’s factory in Ningbo, China. Lenoxx contended this was an express term contained in the text message sent at 2:14pm on 25 March 2020, alternatively it is to be implied by operation of section 35 of the Goods Act 1985 (Vic) (Goods Act).[29]
[29] Lenoxx also relied on section 34 of the Goods Act.
34Section 34 of the Goods Act is as follows:
“It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale.”
35Section 35 of the Goods Act is as follows:
“Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions (that is to say) the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods.”
36ADSone contended the contract contained the following terms:
(a) Lenoxx was to deliver the goods to Australia by airfreight;
(b) ADSone would be responsible for paying the airfreight charges for the transportation of the Goods from China to Australia;
(c) the price would be payable upon delivery in Australia; and
(d) Lenoxx would procure all documentation necessary in order to effectuate the transportation of the Goods from China to Australia.
37In determining what the terms of the contract were, the objective theory of contract is applied:
“The legal rights and obligations of the parties turn upon what their words and conduct would reasonably be understood to convey, not upon actual beliefs or intentions.”[30]
[30] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, [34].
38In Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 at 502, his Lordship Lord Diplock said in respect of a contract for the sale of goods:
“In each of the instant appeals the dispute is as to what the seller promised to the buyer by the words which he used in the contract itself and by his conduct in the course of the negotiations which led up to the contract. What he promised is determined by ascertaining what his words and conduct would have led the buyer reasonably to believe that he was promising. That is what is meant in the English Law of contract by the common intention of the parties. The test is impersonal. It does not depend upon what the seller himself thought he was promising, if the words and conduct by which he communicated his intention to the seller would have led a reasonable man in the position of the buyer to a different belief as to the promise; nor does it depend upon the actual belief of the buyer himself as to what the seller's promise was, unless that belief would have been shared by a reasonable man in the position of the buyer. The result of the application of this test to the words themselves used in the contract is still `the construction of the contract'.”
39In my judgment, the phone conversation and text messages would reasonably be understood to convey to a reasonable person in the parties’ positions that Lenoxx was to effect delivery of the goods by making them available for collection by ADSone at Lenoxx’s supplier’s factory in Ningbo, China.[31]
[31] “The bulk of authority suggests that the question is what a reasonable person in the position of the
offeree would make of the alleged offer, and what a reasonable person in the position of the offeror would make of an alleged acceptance.” John Dyson Heydon, Heydon on Contract (Thomson Reuters, 2019) [2.40] citing Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 approved in Ryan v Textile, Clothing & Footwear Union of Australia [1996] 2 VR 235, 262.
40Mr Marcus told Mr Simchon in the phone conversation that he would not do any airfreight, that he “would not be doing any transporting” because he “simply couldn’t do it”, and that the cost of airfreight was increasing every day and he did not know whether airfreight would even be possible. The text message sent at 8.18pm on 24 March 2020, stating that “Air freight is a lot so I’m not going to do it”, is unequivocal. When the text messages are considered as a whole together with the phone conversation, a reasonable business person would have understood that Mr Marcus would not do airfreight at all (the unequivocal refusal).
41I prefer the evidence of Mr Marcus as to what was said during the phone conversation. I consider it more likely than not that Mr Simchon told Mr Marcus he had a charter flight organised for the following Sunday.
(a) Mr Simchon had the capacity to organise charter flights. It is something his company does and did over the course of that timeframe.
(b) In response to questions from Mr McKay, Mr Simchon denied that a flight was organised for that Sunday.
“(Mr McKay) Was a charter flight actually organised arranged or procured by ADSone or iCumulus for the Sunday as referred to by Mr Marcus?---(Mr Simchon) No. I wouldn’t be able to procure secure any charter flight until I get documentation for goods, especially because we were dealing with dangerous goods, so there was no need for me to make any reference to a charter flight and I didn’t do so.”
(c) However, in cross examination, after initially denying there was a charter flight organised, he then said he could not recall whether he had a charter flight organised from Shanghai to leave that Sunday.
(d) Mr Wright gave evidence of organising a charter flight. He was trying to get the hand sanitiser loaded on to the same shipment as some face masks[32] and had obtained a quote for a charter plane for that purpose.[33]
(e) Mr Wright emailed Mr Marcus on 26 March 2020 in relation to the Guangdong order and said that “This will be moved on a chartered service…”.[34]
[32] Unrelated to the Lenoxx transaction.
[33] I accept that the Global Air & Sea Services (Global) quote at CB 276 is more likely than not a quote
for the airfreight of the goods. The cover email attaching “quotes for both shipments”, being the hand sanitizer and masks (CB 272-274) identifies the weight of the hand sanitiser as 7800kg, which weight matches the weight identified in the quote. The quote was for $333,235.50.
[34] CB 56.
42The unequivocal refusal is consistent with the context in which the transaction took place:
(a) The contract was entered into in a rapidly changing market with instability both in pricing of airfreight and bookings. With respect to chartering a plane around 25 March 2020, Mr Wright said the following:
“What I've been asked to do is charter an entire aircraft in the midst of a world pandemic. So let's remember this is in the midst of a world pandemic, so the crisis has hit the world. Everybody wants these products across the globe. There are flights being cancelled left, right and centre… You couldn't get a flight anywhere. You couldn't get a flight anywhere. You couldn't get on a plane. You couldn't get off a plane. Cargo planes were null and void…”[35]
(b) The purpose of the transaction was to export the goods from China to Australia more quickly than was possible by sea in the rapidly changing environment. According to Mr Simchon, the larger consignment of hand sanitiser that Lenoxx was importing by ship would have taken too long to satisfy the LWB contract. ADSone took steps to organise the airfreight of the goods to Australia. Mr Simchon said “I know that we’ve asked for Kerry Logistics to pick up the goods.” He said further that:
“[Kerry Logistics] was the agent that eventually collected the goods. We contracted a number of agents…I knew that they would eventually collect it. We’ve had numerous freight forwarders trying to bid for this job. We’ve chosen Kerry Logistics as our subby over there to perform the bill, yes.”
[35] T 224.13-23.
43Mr Simchon said in cross examination that the “airfreight is a lot” comment in the text message of 8.18pm on 25 March 2020 was not a reference to the goods, rather to Mr Marcus not wanting to airfreight the remainder of the large container:
“He asked us to quote him on what it would cost for his 40-foot container to come to Australia, and it was too much for him. It was very clear… the “air freight is a lot” comment refers to him not wanting to air-freight the remaining of the container”.
44I do not accept that Mr Simchon’s evidence can be explained simply as something that just emerged in the trial that is not really significant. It is at odds with:
(a) the defendant’s case as pleaded and opened. At paragraph 3(b) of the amended defence and counterclaim, the defendant pleaded the relevant terms of the contract including the entirety of Mr Marcus’ text message;
(b) the written opening recorded at paragraph 3 that “The contract was negotiated in text messages between Sagi Simchon of ADSone and Eli Marcus of Lennox on 24 March 2020. At 8:18pm on 24 March 2020, Mr Marcus messaged Mr Simchon and stated: “Airfreight is a lot so I am not going to do it. Can you confirm you want 12,000 airfreight and I’ll take them out of the container…”. In a message sent at 8:20pm on 24 March 2020, Mr Simchon said: “confirmed, we want 12,000 units of 500 mil at $AUD9.5 local costs, we will cover airfreight costs”; and
(c) the evidence given by Mr Simchon in his witness statement in which the “airfreight is a lot” comment is part of the discussion regarding the goods. Mr Simchon did not say that it was a reference only to the remainder of the container.
45It was not put to Mr Marcus in cross-examination that the sentence “Air freight is a lot so I’m not going to do it” was a reference to something other than the goods.
46Mr Simchon explained his failure to include that distinction in his witness statement by saying he did not think it was relevant. The first sentence in that text message goes to the heart of what was agreed in respect of the delivery term, the principle issue in dispute, and as such I do not accept Mr Simchon’s late explanation that he did not think it was relevant.
47A reasonable business person in the parties’ positions would have understood Mr Simchon’s reply commencing with the word “Confirmed” to be confirmation of the entirety of the previous text message including the unequivocal refusal.
48Mr McKay contended that the following textual considerations would lead a reasonable person in the parties’ positions to understand that delivery would take place in Australia despite the text message “Air freight is a lot so I’m not going to do it”.
The GST exclusive price
49Had it been intended that ADSone would accept delivery in Ningbo and assume the burden of exportation out of China and importation into Australia, it is unlikely that the parties would have expressly agreed to a GST exclusive price in the text messages, with Lenoxx invoicing ADSone for an amount including GST.
50GST is an Australian tax payable upon importation and supply in Australia. It suggests that Lenoxx was the importer of the goods.
The expression “local costs”
51Mr McKay submitted that the court should find that there was an accord between the parties as to the “local costs” basis of the sale, and that the parties both understood that a transaction occurring on the basis of “local costs” meant that except where otherwise agreed, the seller would deliver the goods to the buyer’s destination and bear all costs associated with such delivery.
52Mr McKay relied on Mr Marcus’ evidence that he told Mr Simchon he would charge him locally and Mr Simchon could claim back the GST, to support his submission that the only way that could rationally have been understood by a reasonable person in Mr Simchon’s position was that Mr Marcus was undertaking to deliver the goods to Australia.
Reference to airfreight costs
53Mr Mackay contended that the specific reference in Mr Simchon’s text message of 8.18pm “… we will cover airfreight costs” implicitly suggests that the transaction was to occur on the basis that Lenoxx bear all local costs and effect delivery in Australia, otherwise there would have been no need for the parties to mention the airfreight costs.
COD
54It was common ground that COD is “cash on delivery”. Mr Marcus accepted that COD connotes an instantaneous obligation to pay that was triggered or accrued upon delivery taking place. If payment was to be made locally, with GST being charged, it must have been anticipated that delivery and payment would occur in Australia.
55I do not consider these textual considerations, either alone or in combination, give such a clear indication of the delivery location being Australia so as to undercut the unequivocal refusal.[36] They would not cause a reasonable person in the parties’ positions to consider that it was more likely than not that the agreement was for the goods to be delivered and paid for in Australia contrary the unequivocal refusal.
[36] In respect of the reference to ‘local costs’, Mr Marcus gave evidence that he had never heard of “local
costs” referring to an obligation to deliver locally in Australia. The evidence discloses variation in the meaning of the expression “local costs.” For example, at CB 56, Mr Wright sent an email to Mr Marcus regarding the Guangdong order in which he referred to “100% China locals”. Mr Simchon agreed that this is a reference to costs in China.
The customs declaration
56Mr McKay contended that the manner in which the transportation of the goods was documented and implemented suggests that Lenoxx was assuming the legal responsibility as owner of the goods to effectuate their export/import.
57The customs declaration signed by Mr Marcus[37] on 31 March 2020 (the customs declaration) relevantly states:
“In accordance with section 181 of the Customs Act of 1901, we hereby authorise Kerry Logistics (Oceania) Pty Ltd or their agent, to act on our behalf as Customs Brokers in the clearance Air and Sea shipments arriving into Australia.”
[37] CB 79.
58Lenoxx also agreed to pay “any monies for Duty, GST, Freight, and associated cost that [Kerry Logistics] outlay to clear our consignments...”.
59Mr McKay relied on section 181 of the Customs Act 1901 (Cth) which provides:
“Subject to subsection (2), an owner of the goods may, in writing, authorise a person to be his or her agent for the purposes of the Customs Acts at a place or places specified by the owner.”
60Mr McKay submitted that as the contract is not a written contract in the ordinary sense, rather a combination of a discussion and short text messages, the customs declaration is admissible to determine what were the terms of the oral and only partially expressed contract.[38] The execution of the customs declaration rendered Lenoxx responsible for compliance with the laws attending the importation and clearance of the goods in Australia. This is consistent with Lenoxx being the importer of the goods, and delivery of the goods being in Australia and inconsistent with Lenoxx’s obligations being at an end upon collection of the goods in Ningbo, China.
[38] County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193,
[24]–[27]; He v Huang (No 2) [2017] VSCA 249 (29 November 2017). See also Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286, [136].
61In cross examination, Mr Marcus explained his conduct in signing the customs declaration:
“I hadn’t been paid yet, and I was therefore the owner of the goods, and I signed the form that I was the owner of the goods, I did so because I was thinking that I was assisting Mr Simchon to get his — his goods in… even though, to me, I was — I had finished all my responsibilities, I was happy to help out where I could… As I’m still the owner… I need to be doing the — I need to authorise their customs — their customs agent to clear the goods… as you can see on my invoice, we don’t release — release title until we’re paid.”
62Mr McKay contended Mr Marcus’ evidence ought be rejected. The notion that Mr Marcus would sign such a document because “it was no skin off my nose and I had had a good working relationship with the defendant” is simply unconvincing.
63In light of my acceptance of Mr Marcus’ unequivocal refusal and my finding in respect of the delivery term, I consider the better view is that there is no cause to consider the subsequent conduct to determine the terms of the contract. There was a completed contract as at 2:14pm on 25 March 2020 with the sending of the text message from Mr Marcus to Mr Simchon requesting payment. I do not consider that a document that came into existence after the contract was completed is probative of what the terms of the contract were. Even if I am wrong, Mr Marcus’ conduct is not clear and unequivocal leading to a clear conclusion that the presumed intention of the parties was that the goods were to be delivered by Lenoxx in Australia. Title in the goods not having passed until Lenoxx was paid, I accept that Mr Marcus’ conduct is consistent with him responding to a request for assistance as he had not yet been paid for the goods. I reject the contention that it is inconsistent with the express delivery term.
Conclusion
64Pursuant to the express term of the contract in the text message sent at 2.14pm on 25 March 2020, alternatively implied by sections 34 and 35 of the Goods Act, ADSone was under a duty to pay for the goods in accordance with the contract, the goods having been delivered to ADSone upon collection in Ningbo.
1(b) Was the plaintiff required to procure the documentation necessary to effectuate the transportation of the goods from China to Australia?
65ADSone contended that it was an implied term of the contract that Lenoxx would procure all documentation necessary in order to effectuate the transportation of the goods from China to Australia.[39] The term was implied into the contract in fact to give business efficacy to the contract and/or at law pursuant to the general duty of co-operation implied in all contracts.
[39] ADSone pleaded that the documents required to be procured for that purpose were a ‘Material Safety
Data Sheet for Dangerous Goods’, a shipper’s letter of instruction outlining cargo details (including composition, quantity, weight, cubic meterage etc), cargo inspection certificate (to be completed at shipper’s premises), dangerous goods declaration, a commercial invoice documenting the sale of the Goods by the supplier in China, a packing list and a copy of the house airway bill (the documents).
66Mr Ravech submitted that the implied term contended for by ADSone should be rejected. It is not necessary to give business efficacy to the contract, because Lenoxx’s obligations were discharged by performance when it made the goods available for collection in China and ADSone, through Mr Wright, collected and accepted the goods. The exportation of the goods from China and importation into Australia was ADSone’s responsibility. In any case, Mr Marcus provided all of the documents that he was asked for in relation to the goods.
Principles of implication of term in fact
67To imply a term in fact to give business efficacy to a contract, it is well established that the following five criteria must be satisfied:
(a) it must be reasonable and equitable between the parties;
(b) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(c) it must be so obvious that it ‘goes without saying’;
(d) it must be capable of clear expression; and
(e) it must not contradict any express term of the contract.[40]
[40] BP Refinery (Westernport) Pty Ltd v Hastings SC (1977) 180 CLR 266, 283 (Lord Simon, Viscount
Dilhorne and Lord Keith) adopted in Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 605-6 (Mason J)
68Each criteria must be satisfied and it is not sufficient that it would be reasonable or equitable to imply the term.[41]
[41] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 346 (Mason J).
69In my opinion, an implied term that Lenoxx would procure all documentation necessary in order to effectuate the transportation of the goods from China to Australia does not satisfy the criteria:
(a) Such a term is not reasonable and equitable as between the parties in light of the unequivocal refusal, my finding that Lenoxx’s obligations were discharged by performance, consistent with ADSone taking on responsibility for the exportation of the goods from China and importation into Australia, as addressed below.
(b) Such a term is not necessary to give business efficacy to the contract. I am not satisfied that it is necessary to imply such a term in order to give business efficacy to the contract in circumstances where ADSone was responsible for the exportation of the goods from China and importation into Australia, including procuring the necessary documents:
(i)Mr Marcus supplied Wise Royal’s contact address and details to Mr Wright. Mr Wright contacted Wise Royal on 25 March 2020 to book collection of the goods and booked a truck to collect the goods from Wise Royal’s warehouse. The goods were collected.
(ii)Mr Wright gave evidence[42] that he had contact with Wise Royal requesting ‘the usual documentation’[43] including “a commercial invoice documenting the sale of the goods by the supplier in China”[44]. He said he engaged in several phone calls with representatives of Wise Royal and Lenoxx during which he asked them to provide ‘the usual documentation’ and despite repeated requests, none of these documents were provided by Lenoxx or Wise Royal.
(iii)I do not accept Mr Wright’s evidence that he made repeated requests of Mr Marcus (Lenoxx) for ‘the usual documentation’. The only written evidence of Mr Wright asking Mr Marcus for any of the documents was for the vendor’s commercial invoice (the Wise Royal invoice) on the morning of 1 April 2020. The email requests of 1 April 2020 make no reference to previous, unfulfilled requests for the documents which one would have expected if such requests had been made. Mr Wright emailed Mr Marcus on 26 March 2020 at 6.17pm in relation to the Guangdong order and said nothing about needing documents urgently for the goods. Mr Wright made no mention of delays and trouble obtaining documents in the email to Mr Angus on 30 March 2020, when he requested Mr Angus to book the goods on a flight on 3 April 2020.
(iv)Mr Marcus gave evidence that he sent two text messages to Mr Wright at 4.23pm and 4.39pm on 27 March 2020 following up on the pick-up of the goods from Wise Royal to which he received no response. The goods were not collected from Wise Royal’s warehouse until 30 April 2020. Mr Marcus said that any documents needed were available from his supplier, “they need just request it… there was no request from either of their transport companies… no request was sent through…”. Mr Marcus’ evidence is consistent with the paucity of emails evidencing requests for documents Mr Wright said he made.
(v)On 1 April 2020 at 1:16pm, Mr Wright emailed Mr Marcus:
“We have been advised that the DG [dangerous goods] documents from your supplier have not been supplied and won’t be done for 24hrs. Your suppliers have been aware of the documentation required for the past 10 days yet when called on this morning it was not ready nor correct…”
(vi)I accept Mr Marcus’ evidence that no request had been made of him for the dangerous goods documents (or any documents other than his supplier’s commercial invoice) and he had not previously been notified of any request that had been made of Wise Royal for the documents. In light of the request for Mr Marcus to sign the customs declaration having been made by email and the request for the commercial invoice having being made by email, had a request for the other documents been made of Mr Marcus, I consider there would have been email evidence of that.
(c) Such a term is not so obvious it goes without saying. For the reasons stated above, it is not so obvious that Lenoxx was required to procure the documents in circumstances where ADSone took responsibility for the export and importation of the goods and Mr Marcus unequivocally refused to do air freight.
[42] Witness statement of Mr Wright, [11].
[43] The documents said by Mr Wright to be necessary were (a) a ‘Material Safety Data Sheet for
Dangerous Goods’ (given that the product contains alcohol); (b) a shipper’s letter of instruction outlining the cargo details (including composition, quantity, weight and cubic meterage); (c) a cargo inspection certificate (to be completed at the shipper’s premises); (d) a dangerous goods declaration; (e) a commercial invoice documenting the sale of the goods by the supplier in China; and (f) a packing list.”
[44] Ibid.
(d) Such a term is capable of clear expression.[45]
(e) Such a term contradicts an express term of the contract for the reasons stated above.
[45] Although it was by no means clear on the evidence that the documents set out in Annexure A to the
statement of claim as being essential to effectuate the transportation of the goods from China to Australia were the same in all respects as the ‘usual documents’ about which Mr Wright gave evidence, or the same as the documents relating to the large container, which description on their face differed from those described in Annexure A.
Principles of duty to cooperate
70As was said by Griffiths CJ in Butt v M’Donald, a general duty to co-operate is implied into contracts:
“It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.”[46]
[46] (1896) 7 QLJ 68, 70-1. Cited with approval in Secured Income Real Estate (Aust) Ltd v St Martins
Investments Pty Ltd (1979) 144 CLR 596, 607.
71However, as stated by the Court of Appeal in Wolfe v Permanent Custodians Ltd:
“Although the duty to co-operate is broadly stated in Butt v McDonald, the scope of the duty is defined by what has been promised under the contract; it is not a general duty to ensure another party obtains an anticipated benefit.”[47]
[47] [2013] VSCA 331, [28] (Warrren CJ, Neave and Whelan JJA).
72Further, as stated by Riordan J in Simcevski v Dixon:
“… a party only has a duty to co-operate by performing acts that are necessary to preserve the benefit of what has been promised in a contract. It does not require a party to co-operate by acting to advance the interests of the other party with respect to the contract. Accordingly, as was observed by the Full Court of the Federal Court in Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd:
There cannot be a duty to co-operate in bringing about something which a contract does not require to happen.
… Further, the scope of the duty to co-operate is limited to what can be reasonably required in the circumstances…”[48]
[48] [2017] VSC 197.
73As set out above, Lenoxx promised to make the goods available for collection. Procuring the documents to effectuate the transportation of the goods from China to Australia is not an act necessary to preserve the benefit of what was promised where Lenoxx’s obligations were discharged by performance and the exportation of the goods from China and importation into Australia was ADSone’s responsibility.
Breach
74If I am wrong, and there is the implied term contended for by ADSone, I address the question of breach. Mr McKay submitted that the Wise Royal invoice was one of the documents necessary to procure the exportation of the goods and their importation into Australia. Mr Marcus withheld the Wise Royal invoice. It was not provided to ADSone, and as a consequence, the goods were never able to be exported from China. Lenoxx was in substantial breach of its obligations under the contract, alternatively ADSone accepted Lenoxx’s repudiation of the contract and terminated it on or about 3 April 2020 by letter from its solicitors to the plaintiff’s solicitors. Accordingly, Lenoxx cannot force ADSone to pay the price.[49]
[49] Kraguljac v A& B Developments Pty Ltd (No.2) [2012] SASC 1 (Kourakis CJ): “…a party in breach of
an essential term, or who has otherwise repudiated the contract, cannot invoke contractual provisions which demand performance of the other party’s obligations on pain of loss of the benefit of the contract."
75Mr Wright requested “… the commercial invoice for export required by the Airline” at 10.21am on 1 April 2021. Having provided a commercial invoice on Lenoxx letterhead at 10.24am on 1 April 2020,[50] Mr Marcus sent a follow up email “Will this do?” at 10:33am. Mr Wright responded at 10.54am; “Thanks but we need the vendors commercial invoice for documentation purposes out of CN.”[51] Mr Marcus sent another “commercial invoice” on Lenoxx letterhead to Mr Wright at 11.13am.[52] There was no email response from Mr Wright to this email.
[50] CB 104-105.
[51] CB 99, having forwarded the Lenoxx email to Mr Angus and been advised by Mr Angus that the
vendor’s commercial invoice was required.
[52] He said “I was the supplier…I was their vendor and I assumed, and I could have rectified if told that I
was the vendor and this is what was required, and to leave China, this is all you need, commercial invoice from me.” He later agreed that the Wise Royal invoice was required for customs clearance in Australia, before reverting to his position that his commercial invoice was sufficient.
76I do not consider that Mr Marcus’ prevarication and failure to provide the Wise Royal invoice in response to Mr Wright’s request in circumstances where he said “I did have it; I just didn’t want to give it to them, to see where and how much I paid”, would have constituted a substantial breach of the contract or amounted to repudiation of the contract by Lenoxx entitling ADSone to terminate. I do not consider Mr Marcus’ conduct evinced an intention not to be bound by the contract because:
(a)
Mr Marcus did not refuse to provide the Wise Royal invoice at all.
Having sent another invoice on Lennox letterhead at 11.13am on 1 April 2020, Mr Wright did not respond with a demand for the Wise Royal invoice; and
(b) time was not of the essence.[53]
[53] Mr Simchon gave evidence that “The discussion I’ve had with Mr Marcus did not discuss a particular
timeframe…” ADSone did not persist with its pleaded case that the goods would be made available for collection forthwith.
77Further, as I have already found, no request was made of Mr Marcus for any other documents that ADSone contends were necessary.
78I consider it more likely than not that the reason ADSone did not pursue the importation of the goods and returned them to Wise Royal is that ADSone no longer wanted the goods. At 12.03pm on 1 April 2020, LWB wrote to ADSone that “at this time we will not be proceeding with the purchase of the hand sanitiser.” ADSone lost the LWB contract and no longer had a buyer.
Loss and Damage
79Even if there had been a breach by Lenoxx, no loss or damage was suffered as a consequence. The failure of the goods to be exported from China and imported into Australia was not a consequence of any failure by Lenoxx to procure all documentation necessary in order to effectuate the transportation of the goods from China to Australia, rather I accept Mr Ravech’s contention that ADSone did not pursue the importation of the goods because it had lost its buyer.
Issue 2: Was Glynn Wright the agent of the plaintiff or the defendant?
80ADSone contended that Mr Wright acted on behalf of Mr Marcus in collecting the goods from Mr Marcus’ supplier’s warehouse in Ningbo, China and during attempts to clear customs and have the goods deposited into the bonded warehouse for export. In respect of Mr Wright’s evidence[54] that for the purposes of the goods, he was acting “on behalf of ADSone because they were paying the bill…”, Mr McKay submitted I ought accept that Mr Wright simply believed that was the case because ADSone was responsible for the airfreight costs.
[54] In response to a question in cross examination.
81I consider that Mr Wright was ADSone’s agent when procuring the collection of the goods from Ningbo:
(a) Mr Simchon asked Mr Wright to arrange the exportation of the goods on his behalf and held Mr Wright out to Mr Marcus as his agent for the purpose of collecting the goods in China. During the phone conversation Mr Simchon told Mr Marcus that “my guy”[55] would contact him to make arrangements for collection of the hand sanitiser and put it on his charter flight. Mr Wright telephoned Mr Marcus on 24 March 2020. Mr Wright accepted that he told Mr Marcus that he’d been asked by Mr Simchon to contact Mr Marcus in relation to organising airfreight of the goods on behalf of Mr Simchon. Mr Wright then proceed to book in collection of the goods from Wise Royal.
[55] Mr Simchon said he used the words “one of my managers”. The import of the words is the same.
(b) Inconsistent with Mr Wright being agent for Mr Marcus, no quote was ever provided to Mr Marcus for the collection of the goods from Wise Royal’s warehouse and transportation of them to the bonded warehouse in Shanghai. Mr Marcus was never billed for the collection and transport of the goods.
(c) Consistent with Mr Wright organising collection of the goods on behalf of Mr Simchon, when Mr Marcus recalled that the goods had to be collected from Ningbo rather than from his supplier’s warehouse in Shanghai, he texted Mr Simchon at 2.14pm on 25 March 2020 that “It’s Ningbo so if they charge u more for pick up I will pay for that”.
(d) Mr Wright said he was engaged to bring the goods into Australia “on behalf of Mr Simchon”. He was arranging the exportation “on behalf of Mr Simchon.” Mr Wright agreed:
“(Mr Ravech) You contacted my client to make arrangements to move the goods---on behalf of Mr Simchon’s company…the defendant. Is that correct?---Yes”
(e) Mr Wright was the contact person on ADSone’s credit account application for Kerry Logistics.[56]
(f) A great deal of time was spent at trial on the distinction between ADSone and iCumulus. I do not consider there is any significance in the distinction between the various entities on the question of agency. Mr Simchon[57] and Mr Wright worked closely from the same address.[58] An example of the close connection is an airfreight quotation, on ADSone cumulus letterhead, quoted by John Forder (iCumulus International Logistics Consultant at the time but ADSone’s International Logistics consultant on 4 April 2018 when a quote was provided to Lenoxx in respect of another matter) with Mr Wright as the contact person.[59] The footer of the cover email from Mr Wright to Mr Marcus has the ADSone street address and the iCumulus logo.[60]
[56] CB 240.
[57] Mr Simchon used both iCumulus and ADSone email addresses.
[58] The circumstances are analogous to those in Crabtree-Vickers Pty Ltd v Australian Direct Mail
Advertising [1975] VR 607, 609-610 (Lush J).
Mr Simchon said the incorrect letterhead was used. “It suggests that it is a ADSone job and it shouldn’t have…”
[60] CB 57.
Issue 3: Is the plaintiff liable on the counterclaim, and if so, for how much?
82ADSone contended that it is entitled to the net profit ADSone would have earned on the sale of 10,000 units of hand sanitiser to LWB. Had Lenoxx supplied the documentation required to facilitate the exportation of the goods, the goods could have been booked for transport and flown from China on or prior to the evening of 31 March 2020 when the freight forwarder insisted on the payment of the “upfront” deposit, and ADSone would not have needed to demand that LWB pay the 50% deposit.
83Mr Ravech submitted that ADSone, rather than Lenoxx breached the contract and thereby repudiated it by refusing to pay the price for the goods. Accordingly, Lenoxx is not liable on the counterclaim.
84Given my findings in respect of Issue 1, ADSone’s counterclaim fails. However, had I determined the counterclaim, I would not have been satisfied on the balance of probabilities that had Lenoxx supplied the Wise Royal invoice, the goods could have been booked for transport and flown from China on or prior to the evening of 31 March 2020 when Kerry Logistics insisted on the payment of the ‘up front’ deposit:
(a) The imposition of the 50% deposit requirement was the barrier to the implementation or completion of the deal with LWB; LWB would not pay for the 50% deposit;[61]
[61] Witness Statement of Lori Nicholls, [8]–[10].
(b) On 30 March 2020, Mr Wright requested Kerry Logistics to book the goods on a flight on 3 April 2020, 3 days after the imposition of the 50% deposit requirement;
(c) I have rejected Mr Wright’s evidence that he made repeated requests of Mr Marcus for the Wise Royal invoice (or other essential documents) before that time. Accordingly I do not accept Mr Wright’s evidence that:
“these delays meant that the flight leaving Shanghai on 26 March 2020 was missed. The next flight on 31 March 2020 was also missed due to a delay in the export documents being delivered”
(d) I accept Mr Ravech’s contention on behalf of Lenoxx that the Global quote for the airfreight of goods was uncommercial and this was the reason that a flight before 3 April 2020 did not go ahead. As I have found above, I consider it more likely than not that the quote for $333, 235.50 was a quote to airfreight the goods and was uncommercial because it was more than the price being paid for the goods by LWB. The purchase order from LWB was for $308,000; and
(e) Mr Wright himself gave evidence of the volatility and uncertainty in respect of flights bookings at this time.[62]
[62] Evidence given by Mr Wright as set out above.
Conclusion
85Judgment for the plaintiff in the sum of $125,400 plus interest.
86Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that ADSone pay Lenoxx’s costs of the proceeding (including reserved costs) on the standard basis, in default of agreement.
87I invite the parties to prepare draft orders to give effect to these reasons.
88If the parties are unable to agree upon the form of order, those minutes of order should be accompanied by short submissions directed to the matters remaining in issue.
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Certificate
I certify that these 30 pages are a true copy of the judgment of Her Honour Judge Brimer delivered on 25 May 2021.
Dated: 25 May 2021
Taylah Stretton
Associate to Her Honour Judge Brimer
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