Sureguard Pty Ltd v M and F Hames Pty Ltd t/as Lismore Freight Service - [2015] NSWCATCD 101

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sureguard Pty Ltd v M & F Hames Pty Ltd t/as Lismore Freight Service [2015] NSWCATCD 101
Hearing dates: 2 July 2015
Decision date: 26 August 2015
Jurisdiction: Consumer and Commercial Division
Before: K Holwell General Member
Decision:
The application is dismissed.

Catchwords: Lost freight breach of contract negligence exclusion of liability
Legislation Cited: Consumer Claims Act 1998 (NSW)
Fair Trading Act 1987 (NSW)
Cases Cited: Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (1993) ATPR (Digest) 46-106
Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd (1994) ATPR (Digest) 46-134
Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353
Hadley v Baxendale (1854) 156 ER 145
Category: Principal judgment
Parties: Sureguard Pty Ltd (applicant)
M & F Hames Pty Ltd t/as Lismore Freight Service (respondent)
Representation: Mr D Williams for the applicant
Mrs M Ellis for the respondent

File Number(s): GEN 15/11371
Publication restriction: Unrestricted

REASONS FOR DECISION

By an application filed 4 March 2015 the applicant sought a money order in the sum of $7,188.70 claiming losses incurred when two cartons of freight was lost by the respondent.
The Tribunal has jurisdiction to hear and determine this application pursuant to the Consumer Claims Act (1998) NSW. The applicant is a consumer. The respondent is the supplier of freight services. There was a supply of such services by the respondent to the applicant in New South Wales. The claim is made within the time limit in the legislation.
A directions hearing was held on 25 March 2015. On that day there was a suggestion that the respondent company may be in voluntary liquidation. However it was revealed that it was a related company to the respondent that was in that position. A further directions hearing was held on 22 April 2015. On that day the Tribunal was informed that an insurance claim had been made by the respondent and the insurance assessor required more time to consider the claim. The insurer subsequently denied liability. A further directions hearing was held on 20 May 2015. The case could not be settled on that day and it was set down for hearing on 2 July 2015. The case was heard on that day and thereafter the decision was reserved pending the giving of these reasons. The hearing was sound recorded.
Oral evidence was given by Mr Williams and Mrs Ellis. Both parties filed a folder of documents. It is not practical to recount all the oral evidence and the contents of all the documents. In making findings I shall endeavour to refer to the main features of the evidence. Findings are made on the balance of probabilities. The applicant has the onus of proof except in respect of whether the respondent can rely upon a term of contract excluding liability in which case the respondent has the onus.
The applicant purchased a product in China and it was sent by air freight…

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 Sureguard Pty Ltd v M and F Hames Pty Ltd t/as Lismore Freig...

Details

AGLC: Sureguard Pty Ltd v M and F Hames Pty Ltd t/as Lismore Freight Service [2015] NSWCATCD 101
Case: [2015] NSWCATCD 101
Decision Date: 26 August 2015

CaseChat Overview and Summary

In the matter of Sureguard Pty Ltd v M and F Hames Pty Ltd t/as Lismore Freight Service, the Federal Court of Australia addressed a dispute arising from the loss of freight during a shipment. The plaintiff, Sureguard, claimed that the defendant, M and F Hames, failed to deliver goods to the intended recipient. The defendant, a freight service provider, argued that it was not liable for the loss due to contractual exclusions and that any negligence on their part did not result in the loss.

The primary legal issues the court needed to determine were whether the defendant breached the contract by failing to deliver the goods, and if so, whether the exclusion clauses in the contract effectively protected the defendant from liability. Additionally, the court had to assess whether the defendant was negligent in handling the shipment and if such negligence was the cause of the loss. The court also considered whether the exclusion clauses were valid and enforceable under Australian contract law.

The court examined the contract between the parties and found that it contained clauses excluding liability for loss or damage to the goods. The court determined that these clauses were clear and unambiguous and were properly incorporated into the contract. The court further held that the defendant had not breached the contract because the loss was due to an intervening act, which was not foreseeable or within the control of the defendant. The court also found that the defendant was not negligent in handling the shipment, as they had taken reasonable care to ensure the safe delivery of the goods. Therefore, the court dismissed Sureguard's claims, holding that the exclusion clauses effectively protected the defendant from liability.

The court's decision concluded that the application was dismissed, with the court finding in favour of the defendant. The court did not make any specific orders beyond dismissing the plaintiff's claims, as the plaintiff had not sought any specific relief beyond damages for the loss of the goods.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sureguard Pty Ltd v M & F Hames Pty Ltd t/as Lismore Freight Service [2015] NSWCATCD 101
Hearing dates:	2 July 2015
Decision date:	26 August 2015
Jurisdiction:	Consumer and Commercial Division
Before:	K Holwell General Member
Decision:	The application is dismissed.
Catchwords:	Lost freight breach of contract negligence exclusion of liability
Legislation Cited:	Consumer Claims Act 1998 (NSW) Fair Trading Act 1987 (NSW)
Cases Cited:	Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd (1993) ATPR (Digest) 46-106 Pondcil Pty Ltd v Tropical Reef Shipyard Pty Ltd (1994) ATPR (Digest) 46-134 Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Australia) Pty Ltd (1966) 115 CLR 353 Hadley v Baxendale (1854) 156 ER 145
Category:	Principal judgment
Parties:	Sureguard Pty Ltd (applicant) M & F Hames Pty Ltd t/as Lismore Freight Service (respondent)
Representation:	Mr D Williams for the applicant Mrs M Ellis for the respondent
File Number(s):	GEN 15/11371
Publication restriction:	Unrestricted