Marcel v Cactus Towing Pty Ltd - [2016] QCAT 532

CITATION:	Marcel v Cactus Towing Pty Ltd [2016] QCAT 532
PARTIES:	Arthur Marcel (Applicant)
v
Cactus Towing Pty Ltd (Respondent)
APPLICATION NUMBER:	MCDO80-16
MATTER TYPE:	Other minor civil dispute matters
HEARING DATE:	19 October 2016
HEARD AT:	Richlands
DECISION OF:	Adjudicator LeMass
DELIVERED ON:	19 October 2016
DELIVERED AT:	Richlands
ORDERS MADE:	1. The Respondent pay to the Applicant the sum of $684.00 within seven (7) days.
CATCHWORDS:	Towing – wheel clamping – distress damage feasant – contract, implied terms – penalty Transport Operations (Road Use Management) Act 1995 (Qld), s 135 Arthur & Another v Anker (unreported, Court of Appeal, England, 30 November 1995) Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 Jamieson's Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 King v Comread (unreported, Magistrates Court, Brisbane, Plaint No 3105/96, per Mr Gribbin SM) Thorton v Shoe Lane Parking Ltd [1970] EWCA Civ 2.
APPEARANCES:
APPLICANT:	Arthur Marcel
RESPONDENT:	No Appearance

REASONS FOR DECISION

Mr and Mrs Marcel and a friend Ms Oliver were attending a play at the Brisbane QPAC on the evening of the 23 July 2016. They drove. Mrs Marcel, a teacher at Brisbane State High School was intending to park at the school but there were no vacancies. A park was found immediately adjacent, a vacant allotment in Cordelia St South Brisbane.
They observed a prominent sign indicating that ‘parking was at their own risk’, however I accept that they did not see any signs advising that they would be towed away and none existed immediately in front of where they parked. Several other vehicles were already parked in the same parking area.
They attended QPAC and returned later that night to find their car was missing. Some five other groups of persons were in the car park, their cars also gone. One of these persons found the “Tow away” sign and informed Mr Marcel. He telephoned the number and was advised that if he attended a holding yard in Albion and paid $550 he could have his car back. Faced with little choice he and the others did just that.
I did not have the assistance of the respondent, as it did not attend the hearing. The respondent was served at its registered office by a professional bailiff. The applicant attempted personal service but was unable to arrange a meeting with a representative. I am satisfied that the respondent was aware of this proceeding and have determined to hear the matter in its absence. I find that the respondent has a towing agreement with the owner and was at all times acting as agent for an undisclosed principal, the owner.
The applicant contends that the Respondent was not entitled to remove and detain his vehicle or impose a monetary penalty to recover the vehicle.

History

The practise of wheel clamping vehicles, apparently unlawfully parked upon private land was made an offence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marcel v Cactus Towing Pty Ltd

Details

AGLC: Marcel v Cactus Towing Pty Ltd [2016] QCAT 532
Case: [2016] QCAT 532
Decision Date: 19 October 2016

CaseChat Overview and Summary

The matter before the Court was a dispute between Marcel, the applicant, and Cactus Towing Pty Ltd, the respondent, over the wheel clamping of Marcel's vehicle. Marcel claimed that the respondent's actions were unjust and the towing fee was excessive. The Court of Appeal was required to determine whether the terms of the contract between the parties were lawful and whether the penalty clause was enforceable.

The central legal issue was whether the contract between the parties was lawful and if the penalty clause within it was enforceable. The Court needed to consider whether the contract contained any terms that were unconscionable or whether the penalty clause was a genuine prepayment of damages. The Court also had to determine if the wheel clamping was lawful distress damage feasant.

The Court found that the contract between the parties contained an unfair and unconscionable term that was not consistent with the statutory implied terms in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The penalty clause was a genuine prepayment of damages, and the wheel clamping was lawful distress damage feasant. However, the Court held that the penalty clause was unenforceable because it was a penalty clause. The Court ordered the respondent to pay the applicant the sum of $684.00 within seven days.

Orders

Orders of the court

1. The Respondent pay to the Applicant the sum of $684.00 within seven (7) days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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