Susan Couch v BMD Removals Pty Limited
[2014] NSWCATCD 116
•08 July 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Susan Couch v BMD Removals Pty Limited [2014] NSWCATCD 116 Hearing dates: 11 April 2014 Decision date: 08 July 2014 Before: A McMurran, General Member Decision: 1.The application for compensation is dismissed. Having considered the material placed before it, the Tribunal is not satisfied to the civil standard of proof, that the grounds required to make the orders sought have been established.
Catchwords: Contract, removalist, provision of services, negligence, lost and damaged goods and compensation Legislation Cited: Consumer Claims Act 1998 ("the Act") Category: Principal judgment Parties: Susan Couch (applicant)
BMD Removals Pty Limited (respondent)File Number(s): GEN 13/54045
REASONS FOR DECISION
The Application
The applicant filed an application on 17 October 2013 claiming:
Compensation in a sum of $30,000.00 comprising damage to goods for loss and replacement and repairs to be carried out; and
An order not to pay $2,500.00; and
The applicant also sought to claim a total of $25,500.00 for “related costs” including extra cleaning and lost income and hearing preparation.
The damages claimed as compensation were in order for the respondent to:-
Fix or replace faulty goods, or deliver or return goods to the value of $28,000.00 including missing items; and
Complete work or services to the value of $2,000.00 for damage to a television, dining chairs, concrete driveway, fence panel and internal walls.
At the hearing the applicant elected not to press the claims for “related costs”, which left the matter within the monetary limit of the Tribunal’s jurisdiction.
The matter was first listed at Newcastle on 22 November 2013, which date was adjourned to 25 November 2013 where both parties appeared by telephone. On 25 November 2013, the parties were ordered to exchange documents. The applicant complied with those directions by 9 December 2013. The respondent did not.
The matter was relisted for a directions hearing on 16 January 2014 for 30 minutes. Both parties again appeared at the directions hearing by telephone and orders were made extending the time for compliance for the exchange of documents. The applicant complied with the extended timetable. The respondent did not and produced no documents. The matter came on for hearing at Gosford on 11 April 2014 where the applicant appeared by telephone and the respondent in person by Mr Mark Walker, who was granted leave to represent the respondent as its director.
Submissions
In response to directions from the Tribunal, the applicant filed submissions on 25 November 2013, 10 February 2014 and then further submissions following the hearing, on 1 May 2014 and again on 4 June 2014 in reply to written submissions from the respondent.
The respondent filed submissions on 4 April 2014, and then following the hearing, the respondent filed submissions on 16 May 2014 and 19 May 2014. No further submissions were received from the respondent.
The Tribunal has carefully considered all these submissions in reaching its decision on the application, as set out below in these reasons.
Background
The applicant is a consumer and the respondent is a supplier as defined in the Act, carrying on business as a removalist transporting goods for reward. The matter comes within the jurisdiction of the Tribunal in its Consumer and Commercial Division.
The applicant is a school teacher. The applicant engaged the respondent to move her household goods from leased premises at Villa 7, 69-71 Crowder Street, Harrington, near Taree in New South Wales to Mildura near the Victorian boarder, a distance of approximately 1,300km.
The applicant did some independent research online about removalists and carriers prior to contacting the respondent. The applicant’s research led her to believe that she would require a suitable vehicle to carry approximately 45 cubic metres of possessions from Harrington to Mildura. The applicant did her own calculations as to the value and quantum of her possessions and then contacted Mr Walker via email, from a number of removalists whom she had researched.
The respondent is one of a number of subcontractor removalists who may be accessed online by using a service provider and locator called “Service Seeking”. Enquiries through Service Seeking directed the applicant to the respondent. The respondent uses a truck which has a load capacity of 55 cubic metres.
The applicant intended that for her move not all of the contents of her property would be carried, as she intended some would be given to charity or disposed of by her. The applicant also completed her own packing of the boxes which were to be removed, and those which were to be donated or given away. The applicant did not ask the respondent to quote for packing items and no quotation for this service was given.
The respondent did not do a reconnaissance beforehand other than to drop off some boxes to the applicant before the move. Mr Walker attended the property with himself and two offsiders on the agreed date, which commenced on 9 September 2013, and was to finish in Mildura on or about 11 September 2013.
There was an exchange of emails between the parties on 14 August 2013, where the respondent informed the applicant as follows:
“Hi Susan
Service Seeking only allows for approximate quotes or price range. $3,500.00 is firm. No need for an inventory.
I have to have a day off in Mildura so late on the 11th is fine.
No need to unpack draws (sic) as I have couple of young blokes to carry the heavy things.
I can drop off some box’s (sic) on the 5th or 6th if that’s not too late.”
The applicant accepted the email quotation from the respondent for a total cost of $3,500.00. This was confirmed by email from the applicant also on 14 August 2013. There was no other formal written contract entered into, no inventory prepared jointly and “agreed”, and no inspection of any packed items or goods by the respondent.
The applicant prepared her own detailed inventory. The contract required the applicant to uplift the goods on 9 September 2013 and deliver in Mildura on 11 September 2013. The respondent assured the applicant that only the applicant’s goods would be on the truck. If, as estimated by the applicant the total quantity was 45 cubic metres, then the respondent’s truck was more than adequate.
The Contract
The evidence discloses that the contract was partly oral and partly written between the applicant and respondent company. There is no evidence as asserted by the applicant that the contract was with Mr Walker personally, and that submission is rejected. The internet enquiries made by the applicant lead her to the respondent, not Mr Walker, and at all material times it was Mr Walker who was acting on its behalf. The written part comprised the exchange of emails between the applicant and the respondent on 14 August 2013.
The oral part of the contract concerned conversations, many of which are disputed, which occurred principally between 9 and 11 September 2013 during the performance of the contract.
The Evidence
At the hearing, the applicant attended by telephone. The respondent appeared in person, represented by Mr Mark Walker and Mr Walker’s partner named Ms Deet Robertson. The respondent also had in attendance a witness who was called in the respondent’s reply to the applicant’s evidence. The witness was Mr Michael Bartrim, who was an offsider engaged by the respondent company as an employee and worked with Mark Walker on the removal. The other person who assisted the respondent with the removal was not called.
The applicant produced a large bundle of documents firstly on 25 November 2013 and then a second bundle on 10 February 2014.
The respondent relied at hearing on the applicant’s documents. The applicant’s bundle included an index and photographs, copies of quotations and invoices, text messages, receipts and valuations and a chronology. The documents produced by the applicant were not objected to by the respondent.
The applicant’s chronology included summary statements more in the nature of submissions from the applicant and contained references to facts and circumstances the subject of the dispute. The chronology served as the applicant’s statement, when read in conjunction with her other documents.
The applicant’s complaint against the respondent alleged primarily that the respondent was negligent in carrying out his responsibilities under the contract.
The negligence alleged included loss or damage of the applicant’s possessions and furniture, failure to correctly load and unload the respondent’s truck, lack of due care and skill in conveying the items and failing to follow the applicant’s instructions as to what to load and what to leave behind.
The losses complained of by the applicant fell into four main categories being:-
(a) Goods lost during the removal;
(b) Goods damaged by the respondent;
(c) Goods left behind by the respondent; and
(d) A claim for costs by the applicant including lost work opportunities, relative to the work performed by her in relation to preparation of her submissions and the case for hearing, and time spent by the applicant putting together her statements.
As indicated, item (d) was effectively abandoned at the hearing as the amount being sought took the matter outside the Tribunal’s jurisdiction.
The applicant supported her written documents and submissions with oral evidence. Both parties had the opportunity to ask questions of each other at the hearing.
The applicant relied principally upon her “electronic inventory” as evidence of what was packed and what was to be conveyed. Unfortunately, the inventory was not checked or ticked off by the respondent and most boxed items were packed by the applicant herself, excluding furniture. There is no evidence that the respondent’s Mr Walker inspected the packed boxes.
The respondent’s case consisted of denials of the oral and written statements and submissions of the applicant. It comprised principally the oral evidence of Mr Walker and Mr Bartrim. In presenting evidence for the respondent, Mr Walker did not deny the emails exchanged between the parties, the photographs and the quotations or receipts produced.
Significantly however, the respondent strongly disputed items marked “missing” in the applicant’s inventory produced for the hearing, which referred variously to a large number of items nominated as “List A” in the applicant’s bundle. Mr Walker’s evidence was to the effect that he did not sight many of those items, for reason that they were either pre-packed in boxes by the applicant, voluntarily gifted by her to third parties or left behind at her request. In turn, these assertions by Mr Walker were vigorously contested by the applicant and went to the substance of the dispute.
The Tribunal notes that the question of who packed the boxes was not disputed, as the applicant repeatedly confirmed that the packing was done by herself.
The Applicant’s Presentation
The volume of goods in the property was a major factual issue. The applicant relied on a document created by her from an online program which she used to determine the number of cubic metres of goods in her home. That appears at document I1A. The document prepared by the applicant calculated a total cubic metreage of 54.46 and which included, according to the applicant, items which she knew would not separately be carried by the respondent. In the Tribunal’s view, those items were never clearly identified. The applicant’s calculation was never seen by the respondent and was not an “agreed” calculation of the number of cubic metres in the villa. The respondent disputed the amount in argument, asserting there was significantly more than estimated by the applicant.
The applicant confirmed that she had been living in the property with two teenage children for two years and conceded it contained a large number of items. The applicant had obtained two quotes, one for 44.96 cubic metres from the respondent for $3,500.00 and a second quote for 54.46 cubic metres for $4,000.00.The applicant chose the lesser amount being approximately 45 cubic metres on the basis that not all items would be removed and some would be donated or given to others.
On the applicant’s own case, it was always intended by her that at least 10 cubic metres of her goods would not be part of the removal. It became apparent during the move itself that one significant issue confronting the applicant was identifying what goods were going, and what were not.
The applicant produced a list of items which she asserted were not delivered. This list was a unilateral compilation, and not accepted by Mr Walker. This list repeated and included “Related Costs” as an item of loss, which was not particularised and which was ultimately not pressed.
In oral evidence, the applicant gave a version of the facts as to what occurred on 9 September 2013, when the removalists arrived to carry out the contract. The applicant agreed that Mr Walker was present with two other men. The applicant also agreed that her unit, was “very full”. It was so full in fact that there was limited passageway within the unit for removing some of the items. The removalists arrived at the property at approximately 9:00am and the work was completed when the truck left at 10:00pm the same evening. The applicant confirmed that she was present throughout the whole of the removal by the respondent.
The applicant says that for the first time on 9 September 2013, Mr Walker informed her that all the goods would not “fit on the truck”. The applicant informed him in reply that “not all of it is going”. The evidence does not disclose however whether the goods the applicant intended were “not going” were ever accurately identified.
In essence, the applicant and the respondent were not in disagreement as to the timing of the events on 9 September 2013. The only complaint prior to 9 September 2013 was the applicant’s evidence that Mr Walker was late delivering transit cartons and she was unable to complete her packing until the removal day. The evidence however in an email confirms the respondent did deliver packaging material on 6 September 2013, which the applicant admits.
The applicant affirmed her evidence set out in her statement under the heading “Chronology of Significant Events”. The evidence of the conversations referred to in that statement were not accepted by Mr Walker or Mr Bartrim. It is apparent however, from the evidence of both the applicant and the respondent that by approximately 4:00pm in the afternoon it was self - evident that all of the contents of the property would not fit in the truck. At that stage the truck was approximately half full.
It is not clear from the applicant’s evidence what it is that the applicant was herself supervising on the removal day. It seems from her evidence that she was variously with the offsiders and with Mr Walker and in conversation with other persons who came to the property during the day. That included the real estate agent who had arrived for an inspection late in the afternoon, but who apparently agreed to return the following day after the removal was complete. The cleaner also arrived and left during the day, unable to carry out any cleaning work until the property was empty. These facts are subsequently confirmed in the applicant’s email with the cleaner.
The applicant admits that during the removal she became anxious, at various times upset and concerned at the time taken, which lasted approximately 13 hours. During the day the evidence discloses that the parties discussed extending the time for the removal into a second day, utilising a second truck to be arranged by the respondent and for additional charges. These matters were not agreed nor acceptable to the applicant whose arrangements to travel to Mildura and concluding the tenancy did not permit any delay.
The applicant confirms that she packed all items herself into boxes, and offered some of the items to her “unemployed neighbour”, and to a young man who approached her after walking past the property seeing the removal in progress.
The respondent also gave evidence about this person, who was not identified and was not called as a witness. Apparently he took certain items which were given to him by the applicant and some of which were paid for by the “stranger”.
The evidence about these particular facts is uncertain and any conclusion on the facts as they were presented at hearing would in the Tribunal’s view be unreliable. Having carefully considered this evidence the Tribunal is not persuaded as asserted by the applicant that Mr Walker for the respondent simply invited the stranger to enter the villa with others and take whatever they wanted. It is more likely in the Tribunal’s view that as claimed by Mr Walker, he directed any enquiries about the applicant’s possessions to the applicant. Such items were not clearly identified at the hearing and there was considerable dispute as to what was given away by the applicant or left behind and not packed on the truck.
To prove the damaged and missing items, the applicant relies principally on List A in her bundle of documents. The difficulty with that list is that it was prepared unilaterally, not sighted by the respondent nor checked by him and in fact Mr Walker disputes its contents, maintaining that all items were delivered, other than those the applicant chose to leave behind. It was common ground that at least 10 cubic metres would not be included in the move, and it was incumbent on the applicant to identify those items with some specificity.
The applicant bears the onus of proof to establish what it is that was packed by her in boxes and in what condition. It is not enough in the Tribunal’s view for the applicant to simply prepare a list after the event, as set out in List A, without having provided the respondent or someone on its behalf an opportunity to verify the contents. This is especially so in circumstances where the respondent was not engaged to pack the goods, now alleged to have either been damaged or “missing”.
The evidence as to what was allegedly damaged, missing or left behind is in the Tribunal’s view, entirely unsatisfactory. In hindsight, it would have been a better exercise for both parties to have noted in writing the number of boxes packed by the applicant, the furniture items to be conveyed and noting those items to be left behind. Some agreement should have been noted as to the condition of specific furniture items said to have been already damaged. Time on the day did not permit the parties to check and verify. As that did not occur, the Tribunal is left to speculate on the evidence and cannot be satisfied as to the identification of those items.
Turning to the issue of value, the applicant presented evidence of the claimed value of lost and left behind items by reference to a number of receipts produced, showing the purchase of various comparable items and the price. The applicant went to considerable trouble researching via the internet a number of merchants and obtaining in that fashion the price for various items which it was asserted would need to be replaced.
The applicant prepared a list marked “SD3a” in her bundle and titled “Items Not Delivered”. The same problem confronts the applicant with the preparation of this list, as with list A. It was never checked or verified by the respondent.
The “lost” items not delivered include a Turkish carpet which the applicant estimated had a value of $14,000.00. There was no evidence produced as to the value of this item on purchase, nor was there any acceptable evidence produced to satisfy the Tribunal as to its present value. The evidence is that there were at least six rugs loaded onto the respondent’s truck. Those rugs were not individually identified and the Tribunal cannot be satisfied that the rug, described by the applicant as a Turkish hand woven carpet, was in fact not loaded onto the truck. The respondent says all rugs were already rolled when loaded. The particular rug has never been located since and the cleaner subsequently confirmed it was not at the villa after the move.
The applicant asserts that the rug was not present when the vehicle was unloaded at Mildura. The applicant speculates that the rug was either “left behind” or “stolen” by persons unknown. The applicant does not allege that it was taken or disposed of by the respondent or by any of the persons present on its behalf at the removal. The applicant for her part cannot explain as to why the rug was not delivered in face of the respondent’s assertion that all rolled up rugs were placed in the truck.
In answer to this particular item, which took up some time at the hearing, the respondent denies that any rug was left behind, and says that all rugs which were rolled up at the property were loaded onto the truck. This was confirmed by Mr Bartrim.
The evidence is unsatisfactory as to the specifics of what was loaded, and in the absence of an inventory and an agreement between the parties otherwise, the Tribunal cannot be satisfied to the ordinary civil standard as to those items “not delivered” and in those circumstances, the claim in relation to the items allegedly left behind in the list marked “SD3a” cannot be established.
The Respondent’s Presentation
In oral evidence, Mr Walker complains that he was misled by the applicant in relation to the number of items required to be loaded on his truck. Mr Walker asserts that immediately he entered the property on 9 September 2013 at approximately 9:00am, he informed the applicant that “this won’t all fit on the truck”. Mr Walker asserts that he went from room to room with the applicant when he first arrived. He was unable to see into all of the rooms, and particularly two rooms towards the rear which were completely full with boxes and items.
Mr Walker asserts that he did not look in the particular boxes that had already been packed by the applicant. There were a number of boxes also in the garage adjacent to the property. A diagram of the property is set out at document M1 of the applicant’s bundle showing the ground floor plan of 69-71 Crowder Street at Harrington and Villa 7 in particular. In essence, the respondent’s case was a denial of the applicant’s claims and that the evidence of loss and damage was not made out.
At the heart of the dispute was the estimate of the volume of goods to be removed. On the applicant’s calculation, it was close to 56 cubic metres. The respondent had contracted for 45 cubic metres only and Mr Walker estimated it was much more than that, notwithstanding the capacity in his truck for 55 cubic metres. That was why Mr Walker had suggested to the applicant a second truck be arranged to carry the extra items. As a result, it was always the fact that some goods would be left behind and it was the respondent’s case from Mr Walker that he took what he was directed to take, leaving the rest.
No expert evidence was called to determine the actual volume of the goods in the property or verify either party’s assertions.
Damaged Goods
In circumstances where neither the applicant nor the respondent is in a position to satisfy the Tribunal as to what items were packed, or identify specifically those items which were loaded onto the respondent’s truck, the Tribunal must still determine the dispute for goods allegedly damaged, either in transit or during the loading or unloading process. Neither the applicant nor the respondent carried insurance for this particular contract.
Both parties agreed some items were already damaged, although the evidence as to which items was unclear. As said previously, a list of those items should have been prepared and agreed, but it was not.
Mr Walker asserts that insurance was not available in circumstances where he was not responsible for packing. The applicant for her part did not have separate insurance cover for goods in transit and believed the respondent was liable for all packed items once on the truck.
The carrier is not liable for damage to things he does not carry, or things already damaged, which highlights the importance of clearly identifying such items.
The evidence of the respondent’s witness, Mr Bartrim was called to deal with some of the issues in relation to the allegations of damage by the applicant.
Mr Bartrim gave evidence corroborating the statements by Mr Walker that on arriving at the property it was clear “it’s not going to fit”.
Mr Bartrim confirmed that the applicant said to him words to the effect “some stuff’s not going” without specifically identifying what those items were. Mr Bartrim in fact denied that any items were broken during the move, other than items that he saw were already broken when loading them on the truck.
Mr Bartrim gave evidence the applicant said to him that as far as the kitchen was concerned “leave all that, none of that’s going”. Again without being specific, Mr Bartrim said that “heaps of stuff were damaged, loose and torn”. Mr Bartrim confirmed that two dining chairs were broken before the removal commenced. He indicated that a chess board top had been broken and the applicant herself took that outside apparently for dumping. Mr Bartrim said he saw the applicant throw it in the bin.
Mr Bartrim gave evidence that the applicant said to him that “the outdoor stuff was staying”. Mr Bartrim went into the garage with the applicant where there was a large box freezer and an ice cream trolley. Mr Bartrim confirmed that those items were put on the truck. Mr Bartrim said the applicant told him to “leave the bookshelves”. Mr Bartrim loaded “six or seven carpets on the truck and a lot of small ones”. He says the applicant viewed the truck when it was nearly empty and then sometime later when the truck by then was nearly half full. Mr Bartrim said that he repeated to the applicant at least three times that “we won’t fit it all in”.
Mr Bartrim also confirmed the evidence about the stranger who had appeared and spoke with the applicant and then took some items for himself. This stranger left and then returned again later with another person and again according to Mr Bartrim “took stuff” which Mr Bartrim thought had been taken to the house next door. Mr Bartrim confirmed the applicant was there in person throughout these events and clearly saw what was happening.
As to item PM1 in the applicant’s bundle, Mr Bartrim confirmed that Mr Walker took the photographs of the truck when it was stacked with the applicant’s goods. Mr Bartrim said that he did not personally hear any complaints from the applicant once the truck was full and loaded and that he left with Mr Walker around 10:00pm. The evidence from both applicant and respondent confirms that there were little if any contemporaneous complaint about damage. Complaints only arose after the event and following the commencement of legal process by the respondent.
Mr Bartrim gave evidence that subsequently that same evening on 9 September 2013, he was pulled over at a weigh bridge outside Goulburn on his way to Mildura, and discovered the truck was significantly overweight. Mr Walker had to make arrangements with Mrs Robertson to hire another truck from Goulburn, off load some of the applicant’s property from the first truck and then proceed with two trucks to Mildura. Mr Bartrim asserts that no carpets were offloaded from the first truck onto the second smaller hire truck. As a result of these events, Mr Bartrim confirmed that the respondent was charged with an offence for the overweight vehicle.
Mr Bartrim gave evidence that at Mildura on 11 September 2013, it took them approximately two and a half hours to unload the smaller truck first and then further time for the second larger truck which arrived later. Again, Mr Bartrim asserts that the applicant was present when the trucks were unloaded. Mr Bartrim said the applicant accused him of “breaking the printer”, and his evidence was that “I saw her drop it on the floor when she was moving a desk”.
Although he saw a number of rugs at Mildura, Mr Bartrim was unable to verify which particular rugs he saw and whether any of them fit the description of the Ottoman rug referred to by the applicant. This is not surprising given that Mr Bartrim had not seen the rugs before the removal, and was not asked to identify an Ottoman rug or any rug in particular and which had been rolled up by the applicant.
On completion of Mr Walker’s evidence, the applicant asserted that seeing the back of the truck, as evidenced in PM1 being the photographs taken by Mr Walker, it was overloaded and that it was not any fault of the applicant that the respondent received a fine for being overladen. The Tribunal accepts this submission.
DECISION
The law requires that the applicant must prove her case on the balance of probabilities, and must establish what the terms and conditions of contract were with the respondent and the alleged breaches of contract. The applicant’s allegations go to the following issues of negligence raised against the respondent, namely whether the respondent:
(a) Failed to carry or remove the applicant’s goods;
(b) Failed to transport the goods securely, including packing items safely into his truck;
(c) Failed to ensure transit of all the goods;
(d) Failed to transport the goods without damaging those goods;
(e) Negligently left goods behind by not including them or loading them in his truck;
(f) Wilfully or negligently abandoned the applicant’s goods, or gave them away without the consent or authority of the applicant;
(g) Behaved recklessly in all the circumstances in dealing with the applicant’s goods;
(h) Failed to advise the applicant of his actions;
Failed to prepare an inventory, or prior to the move, carry out a reconnaissance with the applicant.
In answer to each of these questions as regards negligence, the Tribunal for reasons set out above answers each in the negative. The respondent carried goods for the applicant by loading them on his truck and the evidence does not disclose that they were damaged either during the removal process or in transit.
Nor does the evidence disclose that the respondent purposefully, or negligently, left behind goods he had been directed to convey by the applicant. Such goods had not been properly particularised or specified by the evidence produced by the applicant. There is no evidence that the respondent abandoned the applicant’s goods, or gave them away without her consent or authority, and nor is there evidence that the respondent behaved recklessly or in a manner inconsistent with his instructions.
The Tribunal is not persuaded on the evidence that a breach of the contract has occurred for want of the respondent acting professionally or reasonably in the particular circumstances of this case.
In its ordinary meaning, contractual breach means a failure to perform in accordance with the terms and conditions of the contract. In this instance, taking into account the packing by the applicant, the time pressures and the confusion as to the identification of what items were to be carried, there is insufficient evidence in the Tribunal’s view, to warrant such a finding.
Section 8 of the Act imposes standards on supplying goods and provision of services and sets out various orders that the Tribunal may make. The applicant relies upon this provision in relation to the orders that she seeks. The section specifically provides that in determining a consumer claim, the Tribunal may make an order dismissing the claim or part of the claim, an order requiring the payment of money and finally, an order requiring a claimant to return specified goods, where the Tribunal is so satisfied such an order is required.
In TNT (Melbourne) Pty Limited v May & Baker (Aust) Pty Limited (1966) 115CLR353, the High Court noted the following in dealing with a claim involving a bailee of goods allegedly damaged during the period of custody and possession in transit:
“It is not essential, in order to discharge the onus of proof, for a person in the position of a bailee of goods which have been damaged or destroyed whilst in his custody, to establish, first of all, the precise cause of the loss and, thereafter, to establish that the cause arose or operated without negligence on his part. It is sufficient if the bailee is able to establish that he took such care of the goods as was reasonable in the circumstances.”
(Extracted from a decision of the Supreme Court of New South Wales by Slattery J, in an unreported judgment Reef Health Pty Limited & Ors v Ian Vines & Ors [2014] NSWSC70 at paragraph 72.).
In other words, where the respondent carrier bears the onus of proof as to the standard of care and carriage of goods while bailee, the standard required is one that is “reasonable”.
In this case, the Tribunal is satisfied that in all the circumstances and having carefully regarded the evidence of the parties, the respondent took such care of the goods once loaded on his truck, as in all the circumstances was reasonable. This takes into account the undisputed evidence from both parties that there was a large amount of confusion on the day, exacerbated by time constraints, the fact there were more goods by cubic metre than estimated by the applicant for loading and carrying, and goods given away on the day by the applicant or already damaged which were not specifically identified.
To the extent that there are inconsistencies between the evidence given by or on behalf of the respondent and the allegations and claims made by the applicant, the Tribunal prefers the evidence of the respondent.
To the extent that the applicant has unilaterally and painstakingly prepared inventories of goods lost, damaged and/or left behind, that evidence is not reliable and the Tribunal has already stated that it does not meet the civil standard. It is impossible to be satisfied that the items in the applicant’s list prepared after the event and the subject of the applicant’s inventories were in fact goods “lost”, or left behind or damaged.
To the extent that the applicant asserts items were broken during transit or during the unpacking stage, the evidence consists primarily of that of the applicant and the evidence of Mr Bartrim. Mr Walker gave no specific evidence about items alleged to have been damaged or broken in transit and while at Mildura when being unloaded.
The Tribunal cannot be satisfied on the evidence as it was presented that the particular goods nominated by the applicant were in fact damaged by the respondent during transit. Those goods fall into the same category as those alleged to have been lost or left behind, given that there was no proper inventory prepared at the outset, no mutual inspection of goods at the beginning for identification purposes, or at the end. There was also no opportunity provided to the respondent or anyone on its behalf to verify the complaints made after the event by the applicant and which complaints were not made contemporaneously.
For all those reasons, the application must fail in respect of the claims for compensation.
In respect of the orders sought that the applicant is not liable for any further charges, the Tribunal notes that there is no satisfactory evidence presented by the respondent which would support a claim for any additional sums to be paid by the applicant.
The respondent complains that the truck was overladen and that a second truck was subsequently required and hired for the purpose. But these were matters solely within the control of the respondent who could have refused to take more than the contracted amount. Both the loading of the truck and the size of the truck were matters entirely within the respondent’s control and the Tribunal cannot be satisfied that the applicant is liable for any further or additional charges under the contract, which was concluded for a fixed price.
The only evidence as proof of payment for the fixed price was provided by the applicant. This demonstrates that a total sum was paid by the applicant of $3,500.00, being the agreed price. The respondent sought to refute this claim in his written submissions, raising doubt as to whether he had received the full sum. But any evidence presented after the hearing must be disregarded and does not carry any weight given the payment details provided by the applicant.
ORDERS
The Tribunal not being satisfied to the ordinary civil standard in relation to the allegations made by the applicant, the applicant’s claims for loss, damage or goods left behind and the value thereof are dismissed.
The order sought by the applicant that no additional charges in the amount of $2,500.00 should be levied against her is supported on the evidence as presented, and there will be an order accordingly, noting the respondent has not separately claimed for any payment from the applicant relating to the contract.
In relation to the claims for the applicant’s costs and expenses, those are items which are ordinarily at the applicant’s own expense. The cost of preparation for hearing and attending at the Tribunal are ordinarily borne by the parties themselves, unless there are special circumstances which might warrant an order in favour of the applicant.
In this particular instance, the Tribunal finds there are no special circumstances and that the application for those costs and outlays by the applicant is dismissed.
Similarly, the respondent is liable for its own outlays in responding to and dealing with the applicant’s claims at hearing. This is in accordance with the well-established principle that a litigant in person is not entitled to claim costs in respect of the time expended in preparing and presenting his or her case (see Cachia v Hanes [1994] HCA14) and there is no reason in the particular circumstances of this case to depart from that well-established principle.
A McMurran
General Member
Civil and Administrative Tribunal of New South Wales
8 July 2014
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 04 September 2014
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