MM International (Aust) Pty Ltd v CabXpress Pty Ltd (Civil Dispute)
[2015] ACAT 41
•15 June 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MM INTERNATIONAL (AUST) PTY LTD v CABXPRESS PTY LTD (Civil Dispute) [2015] ACAT 41
XD 1626 of 2013
Catchwords: CIVIL DISPUTE – claim and counterclaim relating to agreements for the provision of network services for taxis
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6(b), 6(c) and 7
Tribunal: Ms W. Corby - Senior Member
Date of Orders: 15 June 2015
Date of Reasons for Decision: 15 June 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
XD 13/1626
BETWEEN:
MM INTERNATIONAL (AUST) PTY LTD
Applicant
AND:
CABXPRESS PTY LTD
Respondent
TRIBUNAL: Ms W. Corby - Senior Member
DATE: 15 June 2015
ORDER
1.The Applicant’s application(s) is dismissed.
2.The Respondent’s counterclaim(s) is dismissed.
……………………………..
Ms L. Crebbin – General President
For and on behalf of the Tribunal
REASONS FOR DECISION
MM International (Australia) Pty Ltd (the ‘Applicant’) itself, or by one of its Directors, is the registered operator of ACT taxis TX405, TX417 and TX907. CabXpress Pty Ltd (the ‘Respondent’) is a taxi ‘network service provider’ in the ACT.
The Applicant has applied to the ACT Civil and Administrative Tribunal (‘ACAT’) to recover three payments of $1,247.00 which the Applicant asserts were paid as security deposits to the Respondent in relation to three agreements between the parties concerning each of the taxis TX405, TX417 and TX907. The Applicant asserts that the Respondent should have returned these security deposit amounts to the Applicant when the agreements between the parties ended.
The three agreements were in relation to ‘taxi network services’ that the Respondent provided to taxis TX405, TX417 and TX907.
The Respondent either denies that the security deposit was paid by the Applicant, or denies that the Respondent was obliged to return the security deposit paid by the Applicant as the Applicant failed to give the required notice of its intention to end the agreement between the parties.
Further, the Respondent has made counter claims for amounts that the Respondent says that the Applicant owes because the Applicant failed to return some of the equipment belonging to the Respondent which had been installed by the Respondent into the taxis TX405, TX417 and TX907.
In these reasons for decision when the term ‘Tribunal’ is used it is a reference to the ACAT member who heard the matter and is making this decision.
The hearing
The matter was heard for part or full days on four dates on 2 April 2014, 4 June 2014, 22 August 2014 and 16 March 2015. At the Applicant’s request several hearing dates were vacated between the original hearing date in 2014 and the last hearing date in March 2015.
The Applicant was represented by Mohammad Hussain and Bazlun Bilkis (aka Ivy Rahman) on 2 April 2014, 4 June 2014 and 16 March 2015. Mohammad Hussain and Bazlun Bilkis are directors of the Applicant company.
On 22 August 2014, Mr Jones of AP Jones and Co Lawyers appeared for the Applicant. Mr Jones advised the Tribunal in writing before the hearing on 16 March 2015 that he was no longer instructed in the matter.
The Respondent was represented by Mr Chung Lai (‘Johnny’) Tam, as an authorised representative, and Ms Pricilla Kan, a Director of the Respondent.
Each of the representatives of the parties, except Mr Jones, gave evidence during the hearing, as each of these people had been in some way personally involved in at least some of the various relevant events.
Each of the parties also called witnesses who attended in person or by telephone at the hearing:
a) Mr Fisher – for the Respondent gave evidence at the hearing on 4 June 2014. A Statutory Declaration made by Mr Fisher on 1 December 2013 was tendered (Exhibit R1).
b) Mr Ashraf Kamel – for the Applicant gave evidence on 2 April 2014. Mr Kamel was also subpoenaed by the Applicant to attend the hearing scheduled for 10 February 2015, however that hearing date was vacated at the Applicant’s request. The Applicant was advised to inform Mr Kamel of the re-listed hearing date of 16 March 2015, however Mr Kamel did not attend on that date. The Tribunal tried to telephone Mr Kamel during the hearing on 16 March 2015 but he did not answer his phone. The Applicant’s representative advised the Tribunal on 16 March 2015 that the Applicant would rely on the evidence given by Mr Kamel on 2 April 2014. The Applicant obtained and provided to the Tribunal the written transcript of Mr Kamel’s evidence on 2 April 2014. The Tribunal will refer to some parts of that transcript in these reasons.
c) Mr Phillip Skipper – General Manager of Aerial Capital Group (aka Canberra Cabs/Elite Cabs/Aerial) - for the Applicant on 16 March 2015;
d) Mr Allan McKeough – former Workshop Manager at Aerial Capital Group (aka Canberra Cabs/Elite Cabs/Aerial) - for the Applicant gave telephone evidence on 16 March 2015. Mr McKeough, who had been subpoenaed by the Applicant to attend the vacated hearing on 10 February 2015, said that he was not aware of the relisted hearing date of 16 March 2015. He was not in Canberra on 16 March 2015. The Tribunal rang Mr McKeough on 16 March 2015 and he gave his evidence by telephone.
The following documents were tendered as exhibits –
a) Exhibit A1 – A joint ‘Affidavit’ with Attachments, affirmed by Mohammad Hussain and Bazlun Bilkis (aka Ivy Rahman) on 9 May 2014;
b) Exhibit A2 – Emails dated between 23 – 29 April 2010 confirming the appointment of Ashraf Kamel as manager for the Applicant of TX405;
c) Exhibit A3 – joint ‘Affidavit’ of Mohammad Hussain and Bazlun Bilkis (aka Ivy Rahman) signed 6 December 2013;
d) Exhibit A4 – Ashraf Kamel’s email to CabXpress, copied to MM International, dated 18 January 2015 re TX405;
e) Exhibit A5 – Letter from NSW Police to Mohammad Hussain dated 9 May 2014 advising no police action would be taken in relation to TX907;
f) Exhibit A6 – Sales receipt/invoice #134 from CabXpress to MM International dated 4 June 2007 re TX405;
g) Exhibit A7 – Tax Invoice #3020 from CabXpress to MM International dated 27 May 2007 re TX405;
h) Exhibit R1 – Statutory Declaration of Douglas Bruce Fisher dated 1 December 2013;
i) Exhibit R2 – Tax Invoice/Receipt #134 from CabXpress to MM International re TX405 dated 4 June 2007 (note this was also tendered as Exhibit A6);
j) Exhibit R3 – email correspondence re CabXpress and MM Hussain re invoices and EFT reports;
k) Exhibit R4 – Email from John Tam to Hasin Hussain, Mohammad Hussain and cc Ashraf Kamel, dated 9 May 2010;
l) Exhibit R5 – Email from John Tam to Ivy Rahman (aka Bazlun Bilkis) dated 29 April 2010;
m) Exhibit R7 – Austaxi invoice #22 dated 11 May 2010 to CabXpress;
n) Exhibit R8 – Bundle of documents handed by the Respondent to Applicant and filed in the Tribunal at the ACAT preliminary conference held on 5 February 2014;
o) Exhibit R9 – CabXpress internal email dated 12 February 2009; and
p) Exhibit R10 – written contract re TX 405 dated 30 April 2007 signed by Hasin Hussain as operator and on behalf of the Applicant and signed by a Director for CabXpress. The signatures are witnessed by David Gnu and including the attached documents ‘Foundation Operators Incentive’ dated 12 April 2007.
Background
During the hearing the parties advised the Tribunal and the Tribunal accepts that every registered taxi in the ACT has a registered operator. An operator may be an individual or a company. Every operating taxi must be supported by a network service provider. The Respondent is a network service provider in the ACT. The Respondent installs, maintains and supports the network equipment necessary to provide these network services. The relevant network equipment includes MT Data, Cabcharge, EFTPOS and camera equipment.
In Canberra there are only two network providers – Aerial Taxi (also known as Canberra Cabs or Elite Cabs) and CabXpress. It is the taxi number plate rather than the vehicle that is registered. Taxi plates may be transferred from one vehicle to another provided the relevant ACT regulatory authority is advised and provided the vehicle to which the plates are transferred has installed the necessary network equipment and is supported by a network service provider.
Both of the parties are involved in the taxi industry. For the purpose of this application, the Applicant or one of its directors (Hasin Hussain) is the registered operator of taxi plates –
a) TX 405 – operator Hasin Hussain for the Applicant;
b) TX 417 – operator Hasin Hussain for the Applicant; and
c) TX907 – the Applicant.
It became apparent on the first day of hearing that this matter involved these three taxis and each has been the subject of a separate agreement between the Applicant and the Respondent. Each agreement has given rise to a claim by the Applicant and counter claim by the Respondent. The parties did not agree that the terms of the agreements were identical.
On the first day of the hearing the Tribunal decided that it would continue to hear what are in effect three separate applications, without requiring the Applicant or the Respondent to amend or lodge further documents. It was apparent, from the way that the matter proceeded on the first day of the hearing that it was unlikely that any direction or order from the Tribunal would prompt resolution or reduce the hearing time of these matters. Consequently the claims and counter claims were heard together.[1]
Witnesses Evidence by Aerial (Canberra Cab / Elite ) Taxi Group – current and former employees
[1] The Tribunal considered this approach was consistent with the objects and principles set out in the ACT Civil & Administrative Tribunal Act 2008 ss 6(b), 6(c) and 7.
Phillip Skipper is the General Manager of the Aerial Capital Group. He started with Aerial in October 2010. Initially he undertook projects. He was appointed Fleet Manager in about April 2011. He was appointed General Manager in about April 2013.
Mr Skipper said that it was the role of the workshop manager not the fleet manager to look after all workshop matters. When Mr Skipper was fleet manager, Allan McKeough was the workshop manager. Mr McKeough worked in the role of workshop manager until about July 2014 when he left Aerial. Stuart Lowry is the current workshop manager.
Mr Skipper said that if a car joins the Aerial group he would not expect it to already have network equipment installed in it. He said that if it did, he imagined that equipment would be left in the car unless it interfered with the installation of the Aerial network equipment. He does not know but suggested that if the existing equipment did interfere with the installation of the Aerial network equipment, then the existing equipment would be removed.
Mr Skipper confirmed that Aerial has no ‘procedure’ for returning equipment belonging to another network provider. He speculated that if possible the equipment belonging to another network provider would be left installed and the Aerial equipment would be installed around it. If this was not possible then he assumed the authorised operator of the taxi would be asked to arrange for removal of the existing equipment so that the Aerial equipment could be installed.
Mr Skipper said that if an operator wants to move a taxi from Aerial to another network service provider, then Aerial would arrange to remove the Aerial equipment from the vehicle at their Fyshwick premises. This is where all of Aerial’s network equipment work is undertaken. Aerial is authorised to install MT (Mobile Tracking) Data (which is despatch equipment), EFTPOS (for Cabcharge) and cameras (Verify) equipment.
Mr Skipper said that if an operator wants to join Aerial there is no fixed process, but if they speak to him as General Manager then he will advise what is to happen next.
At the hearing, Mr Tam on behalf of the Respondent asked Mr Skipper if there was a mobile phone or 2 way radio already installed in a vehicle, would that mobile phone and or 2 way radio be removed because Aerial equipment was being installed? Mr Skipper said if it did not interfere with the installation of Aerial equipment it would not be removed, but it would depend on where in the vehicle the mobile phone or two-way radio was located.
Mr Skipper said that if necessary, after discussion with the operator, he would arrange for the existing equipment to be repositioned or removed. However he said this would only be done if it were private equipment. If it was identified that the equipment belonged to another network provider, he imagined the workshop manager would advise him or the operator and in either event the operator would be sent away to have the equipment removed before the Aerial equipment was installed.
Allan McKeough –Witness for the Applicant – evidence by telephone on 16 March 2015
Mr McKeough is an auto electrician. Mr McKeough started work with Aerial (also known as Canberra Cabs/Elite) in late 2008. He was then ‘officially’ employed from January 2009 and worked with Aerial until 29 August 2014. When he started with Canberra Cabs (aka Aerial/Elite) in 2008, Steve Wydham was the Fleet Manager. He was Mr McKeough’s boss.
During his employment with Aerial (Canberra Cabs) Mr McKeough was responsible for taxi fit-outs and maintenance, and for the installation, de-installation and maintenance of security systems including the despatch system, MT (Mobile Tracking) Data and Cabcharge equipment.
Mr McKeough said that he had been trained and authorised by the relevant organisations in relation to MT Data, Cabcharge and Verify security cameras equipment.
Mr McKeough said that all of the equipment installed by him into taxis was owned by Aerial except the meter, the roof lift and the dome light on the vehicles.
Mr McKeough said that, until the system changed about 3 years ago, if an operator wanted to join Canberra Cabs (aka Aerial/Elite) they contacted Mr McKeough and he would arrange for the installation of Canberra Cabs network equipment. About 3 years ago the system changed so that the Service Manager or Fleet Manager would have the initial dealings with the operator. They would then be referred to Mr McKeough as the workshop manager who would, with the operator, arrange installation of Canberra Cabs network equipment.
Mr McKeough said that in October 2009 he was the workshop manager at Canberra Cabs. He confirmed that there are only 2 network systems service providers in Canberra – they were Canberra Cabs (aka Aerial/Elite) and CabXpress (the Respondent). Mr McKeough said that when he did the installation work, if an operator was moving from CabXpress to Canberra Cabs (aka Aerial or Elite) and there was CabXpress equipment in the vehicle, he would remove the equipment, put it in a box and then put the box in the boot of the car and he would advise the operator he had done this. He would not advise CabXpress about the removed equipment. He would not return the equipment to CabXpress.
Mr McKeough said that if an operator were moving a taxi from Canberra Cabs (aka Aerial or Elite) to CabXpress, he would leave the EFTPOS and Cabcharge equipment which could be reprogrammed, but would remove the MT Data and camera equipment. The rest would be left. Mr McKeough confirmed if he did remove CabXpress equipment, that this removal of equipment would not be authorised by CabXpress. Mr McKeough said that Elite (aka Canberra Cabs/Aerial) and CabXpress did not communicate.
Mr McKeough was asked if he recalls removing CabXpress equipment from TX405 or TX417 at the time that these taxis joined Canberra Cabs. Mr McKeough said he did not. He said that he would do as many as 85 installations in 8 months and TX numbers meant nothing to him. He did not know if operators had to pay for installation or removal of equipment. He was asked about the current process, if there was non-Canberra Cab equipment in a vehicle, but Mr McKeough said he does not know what the current processes are.
Mr McKeough confirmed that there are other authorised installers of network equipment in the ACT, including someone from Premier Instrument. He does not know what the business of ‘Watts’ is authorised to install.
Mr McKeough said that if a mobile phone or two way radio was already installed in a vehicle when he was installing Canberra Cab equipment and if they had nothing to do with the network system he would leave them in the vehicle. Otherwise he would remove the mobile phone and two way radio and put them in a box and put the box in the boot of the vehicle. He would inform the operator or driver that he had done so. He said the taxi meter belonged to the operator and, like the roof lift and dome light, it would not be removed.
Information relating to TX405
Hasin Hussain is the registered operator of TX 405. For the purpose of this application the Tribunal accepts that he operated TX405 as a Director and on behalf of the Applicant.
There is a written agreement for TX405 between Hasin Hussain, as operator for the Applicant, and the Respondent signed 10 Aril 2007 (Exhibit R10). In the agreement the Respondent agreed to provide system and network services to the Applicant. The Applicant was to pay a monthly service fee. The contract period was for 12 months. After this, either party was required to provide 1 month’s written notice to end the agreement.
Although the monthly service fee in the agreement was $1,386.00, it seems that the Applicant enjoyed the ‘discounted’ monthly fee of $1,247.00, which is the amount payable for ‘Foundation Operators’ and is set out in the ‘Incentive’ scheme, the details of which are provided in the document dated 12 April 2007 attached to the TX405 written agreement (Exhibit R10).
The Applicant also paid a security deposit of $1,247 at the commencement of the agreement. This is equivalent to one month’s ‘service fee’ at the discounted rate. There is no reference to the security deposit on the written agreement.
In an email dated 18 January 2010 from Ashraf Kamel to the Respondent (Exhibit A4), Mr Kamel raises some questions about payments relating to TX405 and requests that certain documents be provided to him. Mr Kamel also confirms that he ‘assumed management’, on behalf of the Applicant, of TX 405 on 1 September 2009.
An email exchange between Hasin Hussain and an officer of Public Transport Regulation on 23 April 2010 (Exhibit A2) confirms that the Applicant advised the Government that Ashraf Kamel’s appointment as manager of TX405 took effect from 23 April 2010. The Tribunal accepts that this management arrangement, which relates to ‘day to day’ management of TX405, does not impact on the fact that Hasin Hussain was the registered ‘operator’ of TX405.
An email exchange on 24 and 25 November 2013 (Exhibit R8 - document marked SM13) between Mr Tam, for the Respondent, and a Manager at the Public Transport Regulation – Office of Regulatory Services, ACT Government, confirmed that the Regulator had recorded that TX405 had been moved from CabXpress to Aerial (Canberra Cabs/Elite) as the network service provider on 6 April 2010.
On 9 May 2010, Mr Tam on behalf of the Respondent emailed Hasin Hussain, Mohammad Hussain and cc’d Ashraf Kamel (Exhibit R4). In that email he raises certain issues which are not relevant to these proceeding. However relevantly the email sets out the Respondent’s assertions that:
a) on 25August 2009 a Ford Falcon was registered as TX405;
b) on 1 September 2009 Ashraf Kamel started to manage TX405;
c) on 25 October 2009 the Ford Falcon which was registered as TX405 was damaged in an accident and was written off;
d) the TX405 plates were moved to another vehicle;
e) the registration for TX405 was paid on 24 November 2009;
f) from 22 March 2010 CabXpress noted the EFTPOS use in TX405 dropped dramatically; and
g) TX405 did not sign on to the CabXpress network system again after 5 April 2010.
The Respondent asserts that 5 April 2010 was in effect the ‘end date’ of the agreement between the Applicant and the Respondent in relation to TX405. The Applicant gave no notice of the end of the agreement. The email from the Respondent to the Applicant (Exhibit R4) is effectively a ‘letter of demand’ from the Respondent to the Applicant. In that email the Respondent claims ‘7 days’ network fee ‘in lieu of 7 days minimum notice’ calculated at $691.65. It is unclear on what basis this figure is calculated.
Mr Kamel gave evidence that on 25 October 2009 he managed TX405 for the operator, Hasin Hussain. On 25 October 2009 he received a call from the driver of TX405 who advised that he had been involved in an accident. Mr Kamel attended the scene of the accident. It was a Sunday. Mr Kamel contacted Mr Tam and it was agreed that the car would be towed back to the CabXpress office in Queanbeyan.
There Mr Kamel said that there was a conversation between him, Johnny Tam (the authorised representative of the Respondent in these proceedings) and the driver of TX405. Mr Tam apparently asked the driver to complete insurance and workers’ compensation paperwork.
Although the vehicle was damaged and subsequently ‘written off’, Mr Kamel confirmed that the CabXpress network equipment in the vehicle was not damaged.
Mr Kamel gave evidence that as it was a Sunday there was no-one at the CabXpress premises who could remove the equipment. Mr Kamel said he left the vehicle with the equipment still in it at the CabXpress premises. He said he assumed Mr Tam would be making an insurance claim in respect of the vehicle and equipment.
Mr Kamel said the equipment which was in TX405 when he left it with CabXpress on 25 October 2009 included the mobile phone, 2 way radio and MT Data network system. This is the equipment that had been installed by and belonged to CabXpress. Mr Kamel says that this equipment was thereby returned to CabXpress which kept the car with the equipment still in it on 25 October 2009.
Information relating to TX417
The Tribunal was not provided with a written agreement relating to TX417. The Respondent asserts that an agreement was made in respect of TX417 and was in the same terms as the written agreement in relation to TX405 (Exhibit R10).
The Applicant’s representatives asserted that the Applicant had never been given copies of any agreements despite having requested that the Respondent provide copies of these and other documents.
Hasin Hussain, who had signed the agreement relating to TX405 and was the operator on behalf of the Applicant of both TX405 and TX417, did not give evidence.
The Applicant asserts and the Respondent agrees that a security deposit of $1,247 was paid by the Applicant in relation to TX417. It appears that this was paid on 23 July 2007. This is the date of invoice No. 289 which refers to this ‘security deposit’ payment for TX417 (Exhibit R8 in document marked SM16).
The Applicant asserts that when the agreement in relation to TX417 ended, the CabXpress equipment was removed by ‘Mr Allan’ at Canberra Cabs and was returned to CabXpress. The Respondent denies that the 2 way radio and mobile phone equipment belonging to the Respondent was returned. The Respondent does not deny that other network equipment was returned.
The Respondent asserts that the network service agreement between the parties in respect of TX417 was in the same terms as the written agreement in relation to TX405 (Exhibit R10). Therefore the one (1) month’s notice (as set out in the agreement re TX405) was required but not given by the Applicant when the Applicant ended the agreement with the Respondent in respect of TX417. The Respondent says it retained the security deposit of $1,247, being the equivalent of one month’s service fee, in lieu of notice.
The Respondent counter-claims the depreciated cost of the 2 way radio and mobile phone equipment which the Respondent installed in TX417, which belonged to the Respondent and which was not returned to the Respondent at the end of the network service agreement between the parties in relation to TX417.
In relation to TX417, the Applicant does not deny the requirement to give one (1) month’s written notice, but rather says that it gave the requisite notice by a letter from Hasin Hussain sent to Johnny Tam at CabXpress dated 23 December 2009(sic) (Exhibit A1 Attachment B). This unsigned copy of a letter advises that TX417 would be taken from the CabXpress network ‘around the first week of February 2009(sic)’.
The Respondent denies that it received this letter. As noted above, Hasin Hussain did not give evidence.
Information relating to TX907
Ashraf Kamel sent an email dated 18 January 2010 (Exhibit A4) to the Respondent’s email addresses. In the email Mr Kamel foreshadows that he will assume ‘management’, on behalf of the Applicant, of TX907 from ‘mid February 2010’.
The parties did not agree on what the arrangement had been in relation to TX907 in the period before Mr Kamel assumed management responsibility in about February 2010. The Applicant was at all relevant times the registered operator of the vehicle.
Mr Tam says that Mohammad Hussain had been ill and, at some time in the period prior to February 2010, had asked Mr Tam to assume management responsibility for TX907. Mohammad Hussain denied this relationship had existed.
The Respondent says that because of this management arrangement between Mr Tam and the Applicant in relation to TX907, and because of Mr Tam’s relationship with CabXpress when he was managing TX907, no security deposit was paid by the Applicant when the parties entered into the network service agreement in relation to TX907. The Respondent says that the network services agreement between the Applicant and the Respondent in relation to TX907 was ended by the Applicant and without the requisite one (1) month’s written notice.
Based on the available evidence, the Tribunal is unable to make any finding about who managed TX907 before Mr Kamel assumed management responsibility in about February 2010.
The Tribunal does accept that when Mr Kamel assumed management of TX907, CabXpress was providing network services and there was CabXpress network equipment installed in the vehicle. It also seems likely that a driver connected with CabXpress or Mr Tam drove taxi TX907 for at least some of the time prior to the events at the airport on or about 29 April 2010.
Mr Kamel gave oral evidence that he and Hasin Hussain, one of the directors of the Applicant, were dissatisfied with CabXpress. Mr Kamel said that although he and Hasin Hussain had tried to advise Mr Tam of their dissatisfaction, in the end they ‘took the car’ – TX907. Mr Kamel said that a written notice ending the ‘network relationship’ between MM International and CabXpress in relation to TX907 was prepared by Hasin Hussain. No copy of this document was provided to the Tribunal. Hasin Hussain did not give evidence.
Mr Kamel provided evidence as to the circumstances relating to the ‘removal’ of TX907 from CabXpress. On a date in 2010 (which for the reasons set out below the Tribunal has concluded was probably on or just before 29 April 2010) Mr Kamel attended at Canberra Airport. TX907 was there. Mr Kamel asked the driver of TX907 to give the car to Mr Kamel. Mr Kamel then drove it away.
Mr Kamel said that when he ‘took’ TX907 from the driver at the airport it was intended that the network support arrangements would be moved from CabXpress to Canberra Cabs (aka Aerial/Elite Cabs) who would then be used as the network service provider for TX907.
Mr Kamel in his oral evidence (transcript of evidence on 2 April 2014 at page 24 line 5) says that he advised the driver of TX907 from whom he took the vehicle on the day that Mr Kamel collected TX907 from the airport of the Applicant’s intention to change from CabXpress to Canberra Cabs as the network service provider to TX907. Apparently the driver did not have a ‘PIN’ for Canberra Cabs and so could not continue driving if this change occurred. In any event Mr Kamel had organised for another driver to drive TX907. However, from the evidence provided it seems that the planned transfer from CabXpress to Canberra Cabs was not immediately possible because the vehicle with TX907 plates was maroon in colour, and Canberra Cabs would accept only white cars.
The Applicant did not dispute that Mr Kamel ‘removed’ TX907 from the driver at the airport. Mr Fisher confirmed these events. Mr Fisher gave oral evidence and his Statutory Declaration dated 1 December 2013 was tendered in evidence (Exhibit R1). Mr Fisher worked for CabXpress. He gave evidence that in May (sic) 2009 he was working at the CabXpress office. He received a telephone call from the driver of TX907 who wanted to speak to Mr Tam who was not available.
The driver of TX907 told Mr Fisher that Ashraf Kamel was with the driver. The said Mr Kamel had shown the driver a piece of paper which Mr Kamel told the driver confirmed that Mr Kamel was the manager of TX907. The driver informed Mr Fisher that Mr Kamel was proposing to take the vehicle with plates TX907. In substance Mr Kamel’s and Mr Fisher’s version of events were consistent.
Mr Kamel gave evidence that he drove TX907 from the airport to his, Mr Kamel’s, house. According to Mr Kamel it was parked outside his house, with the CabXpress equipment in it, until it was removed by someone some months later.
The Applicant asserts that it was the Respondent which ended the agreement concerning network support services to TX907 when the Respondent discontinued network services after the removal of TX907 from the airport.
Mr Kamel said that at about the time and after he removed TX907 he had a conversation with Mr Tam who said that CabXpress would no longer run the car and Mr Tam demanded the return of the car. Mr Kamel said that the Respondent then shut down the CabXpress system services for TX907 (Mr Kamel’s transcript page 27 lines 7-20). Without a network system a taxi cannot be legally operated in the ACT. As the vehicle, because of its colour, could not immediately join Canberra Cabs (see Transcript of Mr Kamel’s evidence page 25 lines 6-20), TX907 could not be used as a taxi.
According to the Applicant, the CabXpress equipment was in the vehicle when Mr Kamel removed the vehicle from the driver at the airport and parked it outside his house.
At some later stage the vehicle was removed by someone from outside Mr Kamel’s house. Mr Kamel said he saw broken glass near where it had been parked and that he later found out that it was parked at the Respondent’s premises. Mr Kamel said someone associated with the Respondent took the vehicle from his house.
An email from John Chung Tam (on behalf of the Respondent) to Ivy Rahman (aka Bazlun Bilkis – on behalf of the Applicant) dated 29 April 2010 (Exhibit R5) refers to the removal from the airport of TX907 by Mr Kamel.
The Tribunal accepts that Mr Fisher’s recollection of the substance of what was discussed in the telephone conversation he had with the driver of TX907 is accurate. However, based on the email of 29 April 2010 (Exhibit R5) the Tribunal considers it likely that TX907 was probably removed by Mr Kamel from the airport on or shortly before 29 April 2010. In the Tribunal’s view, nothing turns on Mr Fisher’s, probably mistaken, recollection that this occurred in May 2010.
In the 29 April 2010 email (Exhibit R5) Mr Tam on behalf of the Respondent asks for confirmation as to whether TX907 will be ‘moved’ from CabXpress (the Respondent) to ‘Aerial’ (the other ACT network system provider). The email indicates that if so, the Respondent would stop providing services to the Applicant for TX907. There was no evidence of any response to this email by the Applicant.
The Respondent relied on the information appearing in an invoice from Austaxi dated 11 May 2010 (Exhibit R7) which states that TX907 ‘resigned’ on 5 May 2010. The Respondent says that the resignation from this service meant that TX907 was no longer supported by CabXpress.
It seems that there are a number of issues, unrelated to this matter, which concern the parties and relate to TX907. A letter dated 9 May 2014 (Exhibit A5) from NSW Police to Mohammad Hussain, advises that no police action will be taken in relation to TX907. In the letter the Police suggest that if there is a dispute about TX907 the parties should pursue a civil remedy. The application to ACAT in this matter in relation to TX907 is restricted to the Applicant’s claim for return of the security deposit it allegedly paid and the Respondent’s counter claim for the depreciated cost of a two-way radio and mobile phone equipment it says was not returned to it.
The Tribunal accepts that Mr Kamel ‘removed’ TX907 from the airport on or shortly before 29 April 2010. The Tribunal further accepts that the driver of TX907 immediately before it was ‘removed’ by Mr Kamel was in some way associated with Mr Tam rather than the Applicant and was not at that time authorised to drive a vehicle supported by the Canberra Cabs service network, but was authorised to drive vehicles supported by the CabXpress service network.
Closing submissions by parties
At the conclusion of evidence on the last day of hearing the parties were invited to put oral submissions to the Tribunal. The Applicant initially advised that it would rely on the evidence it had provided during the hearing and the submissions it had made during the conduct of the hearing.
Respondent’s closing submissions
Mr Tam, on behalf of the Respondent, summarised the Respondent’s position and made the following submissions.
The Respondent agrees it was paid a security deposit in relation to TX405 and TX417.
It denies that a security deposit was paid for TX907. For this reason the Respondent says it has not referred to this payment in its calculations in relation to its Response to the Applicant’s claim, nor in its counterclaim.
The Respondent says that although no written copy of the contract could be found, the Applicant does not deny that a ‘standard contract’ like the written document provided for TX405, was also made for TX417. The Respondent says that one (1) month’s notice was required to end the contract. This notice was not given by the Applicant in relation to TX405 or TX417.
The Respondent says that the Tribunal should not accept that Hasin Hussain sent the letter dated 23 December 2009 (sic) (Exhibit A1 Attachment B). The Applicant alleges this letter was sent to the Respondent providing ‘Notice’ of the Applicant’s decision to end the agreement in relation to TX417 in February 2009 (sic). The Respondent says that the Applicant provided no evidence about delivery of this purported notice and the Respondent denies that it received it.
The Respondent says the Tribunal should prefer the Respondent’s evidence as set out in an internal email dated 12 February 2009 (Exhibit R9) which supports the Respondent’s assertion that the Applicant ended the network service agreement in relation to TX417 when it left without notice on 9 February 2009.
In relation to TX907, the Respondent relies on the email dated 29 April 2010 (Exhibit R5) in which Mr Tam, on behalf of the Respondent, seeks specific confirmation of whether the vehicle is being withdrawn from the CabXpress network service. This email supports the Respondent’s assertion that the Applicant did not give notice. The Respondent says the removal of TX907 from the airport and the Applicant’s decision to end the agreement with the Respondent reflected the soured relationship between the Applicant and Respondent at that time.
The Respondent says that when CabXpress first began providing network services to TX907, Mr Tam was managing TX907 on behalf of the Applicant. For this reason CabXpress did not require the Applicant to pay a security deposit and none was paid.
The Respondent noted that there was no dispute that TX405, 417 and 907 each at some stage had CabXpress network equipment installed including a mobile phone, two-way radio and despatch equipment.
In respect of the ‘core’ network equipment, the Respondent accepts that for TX405 and TX417, this was returned to CabXpress. However the mobile phone and two-way radio, which were also owned and installed by CabXpress, were not returned.
The Respondent submitted that Mr Skipper and Mr McKeough had both confirmed that if an installed mobile phone or two-way radio did not interfere with the installation of Canberra Cab network equipment, then they would be left.
In relation to TX907 there is no dispute that the despatch and security equipment were returned, but for months the vehicle sat at Mr Kamel’s house and during this time the mobile phone and two-way radio belonging to the CabXpress remained in the car and were not returned.
In short, in relation to TX405 and TX417, the Respondent says that the Tribunal should not grant the Applicant’s claim for the return of the security deposit of $1,247 paid in respect of each taxi. The Applicant failed to give the requisite one month’s notice. The Respondent says that it is therefore entitled to retain the security deposit which is the equivalent of one month’s service fee in lieu of that notice period.
The Respondent asserts that in relation to TX907 no security deposit was paid therefore the Applicant’s claim fails. However, the Respondent says that the terms of the agreement between the parties was otherwise consistent with the written agreement in relation to TX405. The Respondent seeks payment of one month’s network fee in lieu of notice – being $1,247.
The Respondent’s counter claim is in respect of the Applicant’s failure to return a mobile phone and two-radio owned by the Respondent and which was installed into each of the vehicles. The Respondent claims the depreciated value of this equipment in:
a)TX 417 - $820
b)TX405 $480
c)TX907 - $780
Applicant’s Response to Respondent’s submissions
Following the closing submissions by the Respondent the Applicant made the following ‘submissions in response’.
In relation to TX405, the Applicant says that whilst the Applicant received the email from Mr Tam dated 9 May 2010 (Exhibit R4) in which he made certain demands and asserted that TX405 had left CabXpress without notice, the Applicant ignored this email because Mr Tam was not a director of CabXpress. The Applicant relies on the email from Mr Kamel to CabXpress dated 18 January 2010 (Exhibit A4) to demonstrate that notice was given.
The Applicant says that the evidence of Mr Skipper and Mr McKeough confirmed that they would remove the mobile phone and two-way radio belonging to another network operator from a vehicle where Canberra Cab network equipment was being installed.
The Applicants say that initially the Respondent denied they had copies of any written network service agreement, or that these existed, in relation to TX405, TX417 and TX907, however the Respondent subsequently located the written contract in relation to TX405 (Exhibit R10).
The documentation in relation to TX405 being –
a) the ‘Sales receipt/Taxi Invoice dated 4 June 2007 (Exhibit A6); and
b) the invoice/remittance re TX405 dated 27 May 2007 (Exhibit A7); and
c) the contract for TX405 (Exhibit R10);
is documentation that the Respondent should have had in respect of all three vehicles but did not. Indeed, says the Applicant, by reading Exhibit A7 and Exhibit A6 together it may be that the Applicant was double charged for the security deposit for TX405.
The Tribunal has reviewed Exhibits A6 and Exhibit A7. The Tribunal is satisfied that the Sales Receipt dated 4 June 2007 (Exhibit A6) ‘accounts’ to the Applicant for the ‘income’ from TX405 less the amounts deducted by the Respondent from that ‘income’ for the Invoice 3020 dated 27 May 2007 (Exhibit A7). The balance was payable to the Applicant. It does not appear to the Tribunal that there was a double payment of the security deposit by the Applicant to the Respondent.
The Applicant denied that there was any ‘management’ agreement between the Applicant and Mr Tam whereby Mr Tam managed TX907 for the Applicant. The Applicant asserts that in August 2010 Mr Tam stole TX907 from where it had been parked, since April 2010, outside Mr Kamel’s house.
The Applicant says the Respondent failed to provide documents to the Tribunal despite a direction by the Tribunal that it do so and the Tribunal should not accept the Respondent’s explanation that the Respondent’s IT system ‘crashed’ and so it was not able to produce these records.
The Applicant says that throughout its relationship with the Respondent, and despite requests made by the Applicant, the Respondent has consistently failed to provide documentation and account to the Applicant in relation to the financial matters, including the income of taxis and other matters relating to the relationship between the parties.
Final comment in response by Respondent
In a final comment, the Respondent said that although the Applicant had requested details of all money received by each taxi, in fact the Respondent had only ever provided invoices and had never provided operators with details of each individual payment to taxis.
Consideration by Tribunal
The parties are involved in the taxi industry in Canberra. At all relevant times the Applicant (or one of its directors) was the registered operator of:
a) TX405 – operator - Hasin Hussain (one of the Applicant’s directors)
b) TX417 - operator - Hasin Hussain (one of the Applicant’s directors)
c) TX907 - operator - MM International (Australia) Pty Ltd – any of the Directors of MM International was authorised in relation to these plates.
The Tribunal accepts that Hasin Hussain operated TX405 and TX417 on behalf of the Applicant.
The Tribunal accepts that the Respondent provided network services to taxis TX405, TX417 and TX907 for various periods.
The Tribunal notes that the relationship between the Applicant and Respondent commenced in relation to –
a) TX405 on 30 April 2007 when a written agreement was signed (Exhibit R10);
b) TX417 on about 23 July 2007 (Exhibit R8 document SM16) – no written agreement was provided to the Tribunal; and
c) TX907 on about 21 September 2008 (Exhibit R8 document SM17) no written agreement was provided to the Tribunal.
The Applicant’s representatives complained at the hearing that throughout their relationship with the Respondent, the Respondent had repeatedly failed to provide adequate information and documentation to the Applicant. This included a failure by the Respondent to provide information about financial aspects of their relationship, in particular invoices and reconciliations relevant to the receipt by the Respondent of EFTPOS payments by the various taxis. The Applicant’s representatives said this information should have clearly identified any amounts deducted and the payments that should then have been credited to the Applicant.
When directed by the Tribunal to provide relevant invoices and other documents relating to the three vehicles TX405, TX417 and TX907, the Respondent advised that due to a ‘system issue’ they had not been able to access or provide this information. The Applicant asserted that the Tribunal should not accept this explanation. The Applicant says the Tribunal should conclude that these documents either never existed and or were never provided to the Applicant.
The Tribunal notes that in an email exchange between the Applicant and the Respondent on 28 March 2008 (Exhibit R3) the Respondent’s office had sent an ‘electronic copy of Invoices and EFT’s report’. Ms Bilkis (aka Ivy Rahman) responded on behalf of the Applicant by requesting that in future these documents be sent in hard copy to a postal address. In this email the Applicant does not raise any issue about having received these documents to that date, other than as to the method of providing them.
In the Tribunal’s view this suggests that until that date at least some documents had been provided to the Applicant by the Respondent. It is not clear if after that date, as requested by the Applicant, the Respondent sent further documents in ‘hard copy’ to the postal address as requested by the Applicant. The emails sent by Mr Kamel in early 2010 (Exhibit A4) do suggest that he had raised questions at about that time concerning the provision of financial information by the Respondent in relation to TX405.
The Respondent’s representatives submitted that the detail of information that the Applicant requested, in relation to specific details of every receipt by each taxi, was never provided in that form to any operator and that the Respondent had only ever provided invoices where the total of receipts and deductions were set out. Nonetheless the Tribunal notes that the Respondent was not able to provide these ‘less specific’ documents. The Respondent’s representatives, as noted above, advised that a computer system ‘crash’ had meant they were unable to provide this historical information.
The Tribunal further notes that the Respondent was only able to provide one copy of a written agreement between the parties, being the agreement relating to TX405 (Exhibit R10). That agreement related solely to the ‘network service agreement’ between the parties. The Respondent did not provide copies of any agreement relating to ‘equipment’.
During the conduct of the hearing there were very few matters that the parties agreed on.
In the Tribunal’s view the lack of formal documentation provided in relation to the business relationship between these parties made it very difficult to determine the many issues in dispute.
Hasin Hussain, who is one of the directors of the Applicant, was the registered operator of TX405 and TX417. In addition, he was directly involved in several of the interactions between the parties which are relevant to the applications before the Tribunal in relation to all three taxis, namely TX405, TX417 and TX907. Hasin Hussain did not attend the hearing or give evidence.
Although the Tribunal accepts that the Applicant’s representatives who did attend the hearing were authorised to do so on Mr Hasin Hussain’s behalf, in the Tribunal’s view Hasin Hussain could have given direct evidence about certain matters and this may have assisted the Tribunal in its consideration of some issues including, but not limited to, the formation of the agreement in relation to TX417 and the end of the agreements in relation to TX405, TX417 and TX907.
Hasin Hussain was the signatory to, or said to be the author of, documents relied on by the Applicant or referred to in the evidence by Mr Kamel. As Hasin Hussain did not give evidence some of this information could not be verified or further explored by the Respondent or the Tribunal.
On several occasions during the hearing the Applicant invited the Tribunal to identify what further evidence it required in order to determine this matter. Whilst the Tribunal recognises its responsibility to promote the process of determination of matters, where two business entities are in dispute the Tribunal is not obliged to identify the evidence that each needs to provide to achieve the optimal outcome for that party. At times it was difficult to distinguish between information relevant to the determination of this matter and information about other disputes between the parties arising out of various business dealings which were not directly relevant to the applications and counter claims before the Tribunal.
Mr Ashraf Kamel at various times managed two of the taxis on behalf of the Applicants:
a) TX405 - from at least April 2010, or perhaps from September 2009;
b) TX907 - from around February 2010.
In the Tribunal’s view this relationship between Mr Kamel and the Applicant, or Hasin Hussain on behalf of the Applicant, did not impact on the agreements which operated between the Applicant and the Respondent in respect of these taxis.
The Tribunal considers that the witnesses - Mr Fisher, Mr Kamel, Mr Skipper and Mr McKeough - each endeavoured to provide an accurate account of their recollection of events and to provide truthful answers to the questions posed by the parties’ representative and the Tribunal.
TX405
There was a written agreement dated 30 April 2007 (Exhibit R10) between the parties in respect of TX405. The Agreement was for 12 months after which either party could terminate the agreement by giving one (1) month’s written notice. The Respondent agreed to provide dispatch and radio network services and docket and electronic processing services for TX405. The Applicant agreed to pay a monthly fee for this service payable on the 27th of each month.
The monthly fee, as set out in Schedule 5 of the agreement (Exhibit R10) was $1,386.00 however due to a ‘Foundation Operator Incentive’ dated 12 April 2007 (details of which are set out in a document that was attached to Exhibit R10) certain operators were to get a 10% discount. The monthly fee was then reduced to $1,247.00.
There was no reference in the agreement to a ‘security deposit’. This is the amount that the Applicant says it paid in respect of TX405, TX417 and TX907 at the beginning of the network service agreements it had with the Respondent for each of these taxis.
There was no apparent dispute between the parties that the monthly fee payable in respect of TX405 and TX417 was $1,247.00. Although there was no specific evidence about this, the Tribunal notes that is the discounted amount referred to in the ‘Foundation Operator Incentive’ document.
The Respondent agrees that a ‘deposit amount’ of $1,247.00 was paid by the Applicant in respect of TX405 and TX417. The Respondent says this amount was held by the Respondent, during the term of the agreements, on account of any outstanding fees or other payments which may be owed to the Respondent by the Applicant at the end of the agreement between the parties. The Respondent says that the payment of a security deposit of this kind is an industry standard and is a payment that is routinely paid by operators to network system providers in the taxi industry for this purpose.
The written agreement (Exhibit R10) refers at Clause 6 to radio network services equipment including ‘GPS and safety cameras’. The agreement at Clause 4(g) refers to an ‘Equipment Supply Agreement if applicable’ which is to be ‘elsewhere agreed in writing’ between the parties. However in the ‘Foundation Operator Incentive’ document (which is attached to Exhibit R10) and that seems to be relevant to TX405, and perhaps TX417, it is noted that the ‘Equipment Supply Agreement’ will not apply to operators who are covered by the ‘Foundation Operators Incentive’. There is a proviso in respect of ‘Foundation Operators’ who leave within the first 12 months of the agreement, but that does not relate to TX405 or TX417.
Clause 9.2 of the TX405 written Agreement (Exhibit R10) provides that CabXpress may deduct from money it holds for, or on account of, the operator amounts that the operator is required to pay under the Agreement. The Respondent says that it did not receive any notice that the Applicant intended to end the agreement in relation to TX405.
The Respondent says that it only became aware that TX405 was ‘removed’ from the CabXpress network service because of the ‘lack of use of the CabXpress network’ by TX405 from 5 April 2010. The Respondent relies on the information set out in the letter of demand attached to its email to the Applicant dated 9 May 2010 (Exhibit R4). Although in that ‘letter of demand’ the Respondent refers to the Applicant’s failure to give ‘7 days’ notice’ the Respondent confirmed that no actual claim had been made in relation to this letter of demand and so the issue of the notice period is not the subject of other proceedings or orders.
The Tribunal accepts that the written agreement between the parties in relation to TX405 (Exhibit R10) required the Applicant to provide one (1) months’ written notice of its intention to end the agreement with Respondent. The Tribunal considers it is reasonable for the Respondent to have accepted the actions by the Applicant in ceasing to use and thereby ‘removing’ TX405 from the CabXpress network as effectively ending the agreement between the parties on 5 April 2010.
The Tribunal accepts that the vehicle being used as TX405 was ‘written off’ in an accident on 25 October 2009. The CabXpress equipment in the vehicle was not damaged. The Tribunal accepts that the damaged car with the undamaged network equipment still in it was delivered to the Respondent’s premises in Queanbeyan on 25 October 2009.
The Tribunal accepts that the TX405 taxi plates were transferred to another vehicle. Although from the evidence of Mr Kamel it seems likely that he assumed management of TX405 on behalf of the Applicant, before 23 April 2010, possibly in September 2009, it was on 23 April 2010 that Hasin Hussain advised the ACT regulator the Mr Kamel had assumed the role of manager of TX405 (Exhibit A2).
The ACT regulator recorded that TX405 transferred to Canberra Cabs as the network service provided on 6 April 2010 (Exhibit 8 document SM13).
Mr Kamel wrote to the Respondent on 18 January 2010 about TX 405. It is clear that as at that date the network relationship between the parties was ongoing (Exhibit A4 - in the penultimate paragraph). Mr Kamel writes ‘from now on the only money you are allowed to deduct from taxi TX405 is the base fee’.
The email from the Respondent to the Applicant on 9 May 2010 (Exhibit R4) sets out the Respondent’s ‘timeline’ in which the Respondent asserts that there was no use of the CabXpress network by TX405 since 5 April 2010.
The Tribunal accepts that subsequent to 25 October 2009 the network service agreement in relation to TX405 continued until 5 April 2010. The Respondent asserts and the Tribunal accepts that the action of the Applicant amounted to an ‘end’ to the service agreement by the Applicant. No notice was given by the Applicant to end the agreement.
The Respondent further asserts that the CabXpress equipment in TX405 on the day of the accident, on 25 October 2009, was subsequently transferred to another vehicle with the TX405 plates. A mobile phone and two-way radio, being equipment that belonged to the Respondent, was not returned to CabXpress when the agreement between the Applicant and the Respondent ended on 5 April 2010. The Respondent agrees that other network equipment belonging to the Respondent was returned, but no details about this were provided.
TX417
No copy of a written agreement was provided in relation to the network services or equipment provided by the Respondent to the Applicant for TX417. The parties do agree that a security deposit of $1,247 was paid. The Tribunal accepts that an agreement in relation to provision of network services to TX417 did come into effect on or about 23 July 2007 (Exhibit R8 document SM16).
In relation to TX417 the Applicant relies on the letter dated 23 December 09 (sic) (Exhibit A1 Attachment B) which the Applicant says is evidence that it gave the requisite one (1) month’s notice to end the agreement with the Respondent. In the letter it states that the notice period was to end ‘from around the first week of Feb 2009’.
Clearly either the date of this letter being 23 December 2009, or the end date of the notice period stated as February 2009, was incorrect. Based on other evidence it seems likely that, if written, the date of the letter should have been 23 December 2008 giving notice to February 2009. There is no evidence that this document was delivered to the Respondent. The Respondent denies receiving it. Hasin Hussain’s name is at the bottom of the unsigned copy of the letter (Exhibit A1 Attachment B).
The Tribunal is not satisfied the letter was sent. Mr Hasin Hussain did not give evidence at the hearing. The Tribunal is not satisfied that any notice was given by the Applicant to end the agreement between the Applicant and the Respondent in relation to TX417.
The Respondent says that the agreement in relation to TX417 ended without notice when it left CabXpress on 9 Feb 2009 (Exhibit R9). The purported notice by the Applicant suggests it intended to give approximately 5 weeks’ notice from 23 December 2008 and to end the agreement with the Respondent from ‘around first week of Feb 2009’ (Exhibit A1 Attachment B).
Taking into account the information available the Tribunal is satisfied on balance that although no written agreement was provided for TX417, there was an agreement between the Applicant and the Respondent in relation to TX417. By that agreement the Respondent agreed to provide network services to TX417. Those services were similar to the services it had agreed to provide for TX405. The Tribunal accepts that the Applicant agreed to and did pay a ‘security deposit’ of $1,247 on 23 July 2007 and this amount also represents the monthly service fee that the Applicant agreed to pay for the network services provided by the Respondent.
The Respondent asserts, and the evidence of the Applicant seems to support that, the agreement between the parties required the provision of one (1) month’s written notice to the other party to end the network service agreement. Indeed the Applicant asserts that it gave more than one month’s notice on 23 December 2009 (sic) to end the agreement in February 2009. However the Tribunal does not accept that this written notice was in fact delivered by the Applicant to the Respondent in relation to TX417. Hasin Hussain may have given evidence about this notice and further information about the terms of the agreement between the parties, but he did not do so.
The Tribunal accepts that the agreement between the Respondent and the Applicant ended, without notice, when the Applicant ceased using the Respondent’s network services on 9 Feb 2009.
TX907
In relation to TX907 the Respondent submitted that as a result of an arrangement between the Applicant and Mr Tam, Mr Tam ‘managed’ TX907 at the time that it joined the CabXpress network service in about September 2008. Because of this arrangement and as a result of the relationship between Mr Tam and the Respondent, no security deposit was paid by the Applicant in relation to TX907.
Mr Tam gave evidence that the agreement with the Respondent was that any amount left from the income of TX907 after deduction of costs or fees imposed by the Respondent were to be sent to the Applicant. Any shortfall was to be recovered by the Respondent from the Applicant.
In relation to TX907 the Tribunal is unable to determine the specific nature of the arrangement between Mr Tam and the Applicant prior to Mr Kamel assuming management of TX907 in about February 2010. Although the ‘management arrangement’ between Mr Tam and the Applicant is independent of any ‘network service’ agreement between the Applicant and the Respondent in relation to TX907, the Tribunal is satisfied there was some ‘management arrangement’ in place between the Applicant and Mr Tam in relation to the day to day management of TX907. This view is supported by the evidence given by Mr Kamel and Mohammad Hussain (see transcript of evidence of Ashraf Kamel on 2 April 2014 from page 18 and for example specifically page 19 at lines 21 to 22). This arrangement is not directly relevant to the claim by the Applicant or counterclaim by the Respondent in this matter. Mr Tam is neither director of, nor is it proposed that he made the ‘management arrangements’ as agent for, CabXpress.
The Applicant asserts that the network service agreement in relation to TX907 was in similar or identical terms to the written agreement for TX405 (Exhibit R10). The Applicant says it paid a security deposit of $1,247 at the commencement of the agreement. The Respondent denies that the security deposit was paid. The Tribunal notes that there is no mention of the security deposit in the written network service agreement for TX405 (Exhibit R10).
The Tribunal accepts that when Mr Kamel ‘removed’ TX907 from the airport in April 2010 he did so without the Applicant having provided any written notice to the Respondent. However, the Tribunal is unable to say whether the network service agreement between the parties at that time included a notice requirement and if so the form or period of such a notice.
The Applicant asserts that the Respondent ‘withdrew’ network services from TX907 following the events at the airport in April 2010, and thus it was the Respondent rather than the Applicant which had ended the agreement. The Tribunal is not satisfied that this accurately characterises these events.
In his oral evidence, Mr Kamel said he had advised the driver when he took TX907 from the airport that the Applicant had decided to move to another network service provider, Canberra Cabs. Indeed Mr Kamel explained that as the vehicle was moving to Canberra Cabs and the driver did not have a Canberra Cabs ‘PIN’, that the driver could not continue to drive the vehicle. Mr Kamel said he had therefore arranged for another driver. In the email of 29 April 2010 (Exhibit R5) the Respondent sought confirmation from the Applicant that it intended to move from the Respondent to Canberra Cabs for network service support. The Applicant did not provide any evidence that it responded to this email.
It appears that during the time subsequent to April 2010, when TX907 was taken from the airport by Mr Kamel, and some months later, possibly August 2010, when TX907 was ‘removed’ by someone from where it was parked at the front of Mr Kamel’s house, TX907 was not used as a taxi. CabXpress had discontinued network service support to TX907 but, because the vehicle was the wrong colour, it could not at that time be transferred to Canberra Cabs for network services.
The Tribunal is unable to conclude that a security deposit was paid by the Applicant in respect of TX907. Given that no copy of a written agreement was provided by either party the Tribunal is not satisfied that the agreement between the parties in respect of the network service support to TX907 included the requirement for a written one (1) month notice to end the agreement between the parties.
Mr Kamel gave evidence that when he collected TX907 from the airport on or about 29 April 2010 it had in it CabXpress equipment. This equipment was still in the vehicle when, some months later – possibly August 2010 - it was removed from where it had been parked at the front of Mr Kamel’s house.
Counter claim re CabXpress equipment
The Applicant asserts that a ‘Mr Allan’ installed Canberra Cabs equipment into TX405 and TX417 at the time that the Applicant’s agreement with CabXpress ended and these vehicles were ‘moved’ from the CabXpress network service to the Canberra Cabs network in early 2010.
The Applicant asserts that at that time ‘Mr Allan’ also removed CabXpress equipment from the vehicles and returned this equipment to CabXpress. Although no evidence was given by a ‘Mr Allan’ – the Applicant did call Mr Allan McKeough who gave telephone evidence. Mr McKeough had previously worked at Canberra Cabs and installed Canberra Cabs network equipment. Mr McKeough did not deny, but said he could not recall, installing Canberra Cabs equipment into TX405 or TX417.
Whether the CabXpress equipment installed in these vehicles was or was not removed by the person who installed the Canberra Cab equipment at time that the vehicles TX405 and TX417 transferred from CabXpress to Canberra Cabs, the consistent evidence from Mr Skipper and Mr McKeough – from Canberra Cabs – was that, if CabXpress equipment was removed by the Canberra Cabs equipment installer, it would not be returned to CabXpress by anyone at Canberra Cabs. Further, even if equipment were removed, no one from Canberra Cabs would contact CabXpress about the removal of that equipment. Rather, the operator or driver of the vehicle would be informed and the equipment, if removed, would be placed in a box into the boot of the car.
The Tribunal notes that there is a dispute between the parties as to whether the Applicant or the Respondent paid for the mobile phone and two-way radio equipment that was installed into the TX405, TX417 and TX907 at the commencement of the network service agreements between the parties about these taxis.
The Respondent’s counter claim is restricted to the mobile phone and two-way radio equipment and does not relate to the other network equipment which was installed for the purpose of the network services provided to the Applicant by the Respondent.
The Tribunal notes that although in the closing submissions the Respondent sought recovery of depreciated amounts for the mobile phone and two-way radio equipment in all three taxis, in the initial counter claim filed by the Respondent on 21 October 2013, no claim was made for the equipment in TX405. This claim was included in the further documents filed in the Tribunal by the Respondent on 19 December 2013.
Based on the information available to it, the Tribunal is unable to say whether the mobile phone and two-way radio equipment installed in TX405, TX417 and TX907 was the property of, or should have been returned to, the Respondent when the agreements between the parties in relation to TX405, TX417 and TX907 ended.
There was no reference to these specific items in any agreement between the parties. Although there is reference in the written agreement relating to TX405 (Exhibit R10 at Clause 4(g)) to an ‘Equipment Supply Agreement’ no document of this kind was provided by the Applicant or the Respondent in relation to TX405, TX417 or TX907.
Whilst the Respondent did provide copies of invoices issued to it in relation to the installation of and equipment costs (Exhibit R8 documents SM6 to SM10), the Respondent did not provide any specific evidence as to the agreement it had with the Applicant about the cost of the mobile phone or two-way radio equipment, or about the return of that equipment, or what would occur if that equipment was not returned.
On balance, the Tribunal is not satisfied that the Applicant failed to return the equipment as alleged by the Respondent in respect of TX405, TX417 or TX907, and, if it did, there is insufficient evidence to make findings about the quantum of any amount recoverable by the Respondent.
These are matters that were open to the Respondent to have clearly documented when it entered into agreements with the Applicant in relation to TX405, TX417 and TX907 but it failed to do so. The Tribunal makes no order in relation to the counter-claim by the Respondent.
Conclusion
The Tribunal is satisfied that the Applicant did pay a ‘security deposit’ of $1,247 in relation to the network service agreements it had with the Respondent for TX405 and TX417. Pursuant to the agreements the parties were obliged to provide a one (1) month’s written notice to end the agreements. The Applicant ended the network service agreements without notice. The respondent is entitled to claim the sum of one (1) month’s service fee in lieu of notice. The monthly service fee payable by the Applicant was $1,247 in respect of each agreement. Therefore, the Tribunal finds that the Respondent was entitled to retain the security deposit paid by the Applicant in respect of:
a)TX405; and
b)TX417.
The Tribunal dismisses the Applicant’s application in respect of TX405 and TX417.
The Tribunal is not satisfied that a security deposit was paid by the Applicant in respect of the network service agreement it had with the Respondent in relation to TX907. The Tribunal is satisfied that the Applicant ended the network service agreement between the parties without notice. The Tribunal is not satisfied that the network service agreement between the parties required a party seeking to end the agreement to provide notice to end the agreement. Therefore:
a)The Tribunal dismisses the Applicant’s claim for return of the sum of $1,247 said to be the security deposit it paid in respect of TX907; and
b)The Tribunal dismisses the Respondent’s counter claim for the equivalent of one month’s service fee in lieu of notice to the end the network service agreement in relation to TX907.
The Tribunal is not satisfied that the Applicant was obliged and or failed to return the mobile phone and or two-way radio equipment installed in TX405, TX417 and TX907 to the Respondent at the end of the network service agreements between the parties relating to these vehicles. Alternatively the Tribunal is not satisfied that the quantum claimed by the Respondent in respect of this equipment has been established. Therefore the Tribunal dismisses the Respondent’s counter claims in respect of TX405, TX417 and TX907.
……………………………..
Ms L. Crebbin – General President
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | XD 13/1626 |
PARTIES, APPLICANT: | MM International (Aust) Pty Ltd |
PARTIES, RESPONDENT: | CabXpress |
TRIBUNAL MEMBERS: | Ms W. Corby |
DATES OF HEARING: | 2 April 2014, 4 June 2014, 22 August 2014 and 16 March 2015 |
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