SW v Cactus Towing Pty Ltd
[2016] QCAT 536
•25 August 2016
| CITATION: | SW v Cactus Towing Pty Ltd [2016] QCAT 536 |
| PARTIES: | SW (Applicant) |
| v | |
| Cactus Towing Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO0916-16 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 8 June 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Alan Collier, JP Presiding Mr Bryan Carpenter JP(Qual) |
| DELIVERED ON: | 25 August 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent to pay the Applicant $721.00 within 14 days. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – customer car parking – terms of parking contract – breach of contract – tow trucks – towing parked vehicle – imposing damages for breach of contract by impounding vehicle Tow Truck Act 1973 (Qld) Carlill -v- Carbolic Smoke Ball Co [1893] 1 QB 256 |
APPEARANCES:
| APPLICANT: | SW, in person |
| RESPONDENT: | Daniel Myers, Director of Respondent company |
REASONS FOR DECISION
Substance of the Dispute
On 3 February 2016, the Applicant parked his car in a car parking space apparently associated with Night Valley Convenience Store at Shop 2, 306 Wickham St Fortitude Valley (hereafter Valley Convenience Store). The time it arrived and the duration it was parked are matters of dispute.
On the same date, the Respondent towed the Applicant’s car from where it was parked near the Valley Convenience Store to the Respondent’s holding yard in Herston.
The Respondent claims to have been entitled to remove and detain the Applicant’s car and to charge for this service on the basis of a contract[1] between the Applicant and the proprietor of the Valley Convenience Store arising from the terms of parking displayed at the place where the Applicant parked his car (the ‘Parking Contract’), and a further contract between the proprietor of the Valley Convenience Store and the Respondent dealing with the towing of vehicles in breach of the terms of parking (the ‘Towing Contract’).
[1]The facts here suggest that there has been an offer and acceptance in the manner of a unilateral contract in the nature of Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 or otherwise an implied contract. For this reason, the relationship between the Applicant and the proprietor of the Valley Convenience Store has been treated as being based in contract. It would be equally valid to have treated this relationship as one based on a licence granted to the Applicant by the proprietor of the Valley Convenience Store permitting the Applicant to park subject to the published terms of the licence, in which case the result of the analysis and the decision would remain unchanged.
In order to retrieve his vehicle from the Respondents holding yard the Applicant was required by the Respondent to pay $550.00. The Applicant was required to pay a further $110.00 for allegedly damaging the Respondent’s car park sign. The Applicant paid the Respondent $660.00 and retrieved his car from the Respondent’s possession.
The Applicant seeks to recover what he has paid the Respondent. He also seeks to recover the cost of his transport to the Respondent’s holding yard and the filing fee in this matter.
The Applicant makes the following claims:
a)that he did not breach the Parking Contract;
b)that the terms of the Parking Contract are unenforceable for uncertainty;
c)that the terms of the Parking Contract are unconscionable within the meaning of that term in the Australian Consumer Law;
d)that the fee levied for his alleged breach of the Parking Contract is a penalty and does not represent a genuine pre-estimate of the damage arising from his alleged breach; and
e)that he did not cause damage to any sign the property of the Respondents at the Valley Convenience Store.
In argument the Applicant also raised the issue of the extent to which the conduct of the Respondent was covered by the Tow Truck Act 1973 (Qld) as a result of reg 40 of the Tow Truck Regulation 2009 (Qld). Regulation 40 dispenses with certain licencing requirements otherwise required under the Act. Because these laws are not relevant to the decision made in this case the issue of the Tow Truck Act and the Tow Truck Regulation is not considered further.
The Tribunal did not enquire into, nor was it raised as an issue by either party, whether the proprietor of the Valley Convenience Store had the right to impose the Parking Contract on any person, including the Applicant. That is, whether the proprietor of the Valley Convenience Store had a property right in respect of the parking space that had been occupied by the Applicant, the right over which the proprietor could grant to the Respondent as he purported to do under the Towing Contract. In the absence of evidence, in this regard the Tribunal proceeded as if the proprietor had such a right.
The Evidence
The Tribunal received the following evidence in this matter in addition to that which had been filed by the Applicant:
a)viva voce evidence from the following persons:
i) SW, the Applicant; and
ii) Mr Daniel Myers (Director of the Respondent company) and Mr Daniel Frame (the tow truck driver) on behalf of the Respondent.
b)From the Respondent copies of:
i) photographs of the Applicant’s car taken around the time it was towed by the Respondent (marked Exhibit R1 in the file);
ii) the Towing Contract (see [16] below) between the Respondent and the proprietor of the Valley Convenience Store (marked Exhibit R2 in the file); and
iii) the sign placed at the parking bay, and of the ‘Services’ offered by the Respondent downloaded from the internet (marked Exhibit R3 in the file).
The Facts Found Concerning Breach of the Parking Contract
Based on the evidence the Tribunal finds as correct the facts set out in paragraphs [11] to [17] below.
The Applicant owns a convenience store at 85 James St New Farm. This is not a long distance from the Valley Convenience Store.
The Applicant made a purchase at the Valley Convenience Store at 11:42:57 on 3 February 2016. In support of this assertion the Applicant supplied the Tribunal a copy of a transaction report from the National Australia Bank showing a $5.00 purchase by the Applicant at 12:42:57 AEDT (which was 11:42:57 Queensland time, AEST).
There was no parking notice on the car park, which the Applicant entered, but there was a notice on the adjacent car park and the Applicant believed that he was bound by the terms of the parking described on that adjacent notice.
The notice in the adjacent parking bay which set out the terms and conditions on which the Applicant entered the parking bay at the Valley Convenience Store said the following:
WARNING
Authorised Parking Only
Whilst on Premise
24 hrs 7 days
All Other Vehicles Will Be Towed Away
Minimum Cost $550
To Retrieve Your Vehicle Call
0499 564 344
Subject to Terms and Conditions of Carriage and Storage
*The removal of unauthorised vehicles is the responsibility of Cactus Towing Pty Ltd and any persons
whose unauthorised vehicle has been removed must contact Cactus Towing Pty Ltd … [indecipherable]
In addition to the two parking bays marked by the Respondent, there are several parking bays in the group of parking bays at the rear of the premises that are marked as allocated to Australia Post. Australia Post is the only other tenant of the building containing the Valley Convenience Store. Both the Valley Convenience Store and the Australia Post shop front Wickham Street.
There is a continuing contract dated 15 September 2015 between the Respondent and the Valley Convenience Store called ‘Vehicle Removal Services Contract’ (the Towing Contract) in which the Respondent is given the authority by the proprietor of the Valley Convenience Store, per clause 1 of the contract, to ‘… remove vehicles parked on the premises without authorization …’; and to hold such vehicles ‘… until such time as all costs and expenses for the removal of any vehicle have been paid in full …’. The premises in the Towing Contract are said to be Shop 2, 306 Wickham Street Fortitude Valley.
The Applicant attended the holding yard of the Respondent on 3 February 2016, paid the Respondent $660.00, representing $550.00 for alleged breach of the Parking Agreement and $110.00 for alleged damage to the Respondent’s sign by the Applicant, and regained possession of his car.
Breach of the Parking Contract
If the Applicant did not breach the Parking Contract the Respondent was not entitled to remove the Applicant’s car and seek payment from the Applicant. The first question to consider is whether the Applicant breached the Parking Contract.
The Applicant, who bears the burden of proof according to the civil standard, asserted that he was not in breach of the Parking Contract because:
a) he arrived in the parking bay at 11:35; and
b) his car was in the parking bay for less than 10 minutes; and
c) he spent the whole of that time in the Valley Convenience Store; and
d) for $5.00 he bought chewing gum in the Valley Convenience Store.
The Applicant stated that the maximum of 10 minutes he spent in the Valley Convenience Store, which appeared to be a long time simply for the purchase of chewing gum, was because, during this period, he sent text messages to his friends and spent some time perusing the layout of the store because of his interest in a competitor, given that he runs a convenience store nearby in New Farm.
The Respondent, through Mr Myers, said that it was entitled to remove the Applicant’s car by virtue of the operation of the Towing Contract and the Parking Contract and the following facts:
a) the Applicant was parked in the car park for over 30 minutes; and
b) the Applicant did not shop at the Valley Convenience Store until after the Applicant realised that his car was being towed.
In support of these assertions the Respondent:
a) tendered contemporaneous photographs of the allegedly offending vehicle said to be taken by Mr Liam Khan, an employee of the Respondent (Exhibit R1); and
b) relied on the evidence of the tow truck driver, Mr Daniel Frame, also an employee of the Respondent.
The Respondent claimed that the photographs disclosed the Applicant’s car was parked in one of the Valley Convenience Store car parks at 11:36. Mr Myers on behalf of the Respondent also stated that the Respondent only tows cars after a client, such as Valley Convenience Store, makes a complaint to the Respondent about a vehicle being parked when there is no customer in his shop.
The evidence disclosed that the sequence of events prior to attendance by the Respondent to tow the Applicant’s vehicle would involve:
a) the proprietor of the Valley Convenience Store noticing that no customer was in the store; and then
b) checking whether a car was parked in one of its bays behind the shop; for which purpose
c) he would have to leave the front of the shop, go to the back of the shop, and open a solid rear door; and then
d) ring the Respondent to advise of the offending vehicle; who would have to
e) attend before the offending vehicle had decamped.
The evidence of the Respondent is that it would not normally tow a vehicle until the vehicle had been there 30 minutes or so. This is explained in the evidence of Mr Myers where, in an interchange with the bench, he said:
COLLIER JP: So I understand from what you say that you say that SW was parked there for some time. When did he arrive? Do you know?
MR MYERS: We don’t know the rough time. We received the phone call about 30 minutes prior.
COLLIER JP: Did you? From whom?
MR MYERS: From the store owner.
COLLIER JP: So you received a phone call at – that was 11.40 – about 11.10. Is that correct?
MR MYERS: Yep.
If the Respondent received a call from the proprietor of the Valley Convenience Store complaining about the Applicant’s car being illegally parked at approximately 11:10, because of the sequence of events that had to occur prior to this call being made, explained in paragraph [24], this would suggest that the Applicant would have to have been parked there for some not inconsiderable time prior to 11:10.
The Applicant said that he arrived at the store at 11:35.
The photographs taken by the Respondent and tendered in evidence, along with the associated metadata, disclose that the four photographs were taken between 11:36 and 11:37. Photographs of the Applicant’s car taken at this time are consistent with the Applicant’s evidence that he arrived at 11:35; meaning that he would most likely have been in the store by the time the photographs were being taken.
The Applicant said, however, that the time metadata on the photographs could have been subsequently altered, but did not provide any evidence of this having been done. However, the photographs themselves were not date stamped and, in all likelihood, the metadata associated with the photographs rely on the date and time entered by the operator and could, conceivably, be in error. In any event, the person that the Tribunal was told took the photographs, Mr Khan, was not present to swear to their accuracy.
For the reasons set out in paragraphs [26] to [29] we are unconvinced that the photographic evidence tendered by the Respondent contradicts the evidence of the Applicant that he arrived at 11:35.
Mr Frame, the tow truck driver, gave evidence that when the Applicant approached the car the Applicant was carrying a parcel that appeared to have been collected from the Australia Post shop. He said:
SW approached us as we were tying down the car, carrying a large parcel from Australia Post, and that’s when I explained to him that it was Night Convenience car park and not Australia Post, and that’s when he turned around and walked to Night Convenience Store.
When asked by the bench if he was carrying an Australia Post article as described by Mr Frame the Applicant replied: ‘No’.
In evidence, Mr Myers told the Tribunal that he believed that the proprietor of the Valley Convenience Store had retained copies of the security video covering the relevant period during which the Applicant visited the store. This evidence would have assisted the Tribunal in the matter of assessing the time when relevant events occurred, and whether the Applicant had in his possession an Australia Post parcel as described by Mr Frame. By Direction dated 14 June 2016, the Tribunal directed the Respondent to produce and file into QCAT a copy of the relevant security video in a commonly used format by 30 June 2016. The Respondent did not comply with this Direction.
The Tribunal is faced with evidence that is clearly contradictory. One version of events is not correct.
There is nothing in the evidence that persuades us that the version of events described by the Applicant in this matter is incorrect. The times when the photographs were taken by the Respondent, even if correct, are consistent with the Applicant’s version of events.
The assertion by the Respondent that the Applicant was carrying a parcel from Australia Post as he approached his vehicle and was, therefore, not a customer at the Valley Convenience Store until after the Applicant became aware that his vehicle was being towed is denied in clear terms by the Applicant. There is no independent evidence to support the assertion of either party.
The circuitous series of events that had to occur (described in paragraph [24]), and is said by the Respondent to have occurred in this case within the time when the Applicant was parked, in order for the Respondent to be alerted to the presence of a car illegally parked by the proprietor of the Valley Convenience Store, stretches credulity.
The suggestion by the Respondent that the Applicant had parked where he had, at approximately 11:10, in order to go to the Australia Post shop to retrieve a parcel would have involved the Applicant being in the Australia Post shop for over 30 minutes for this purpose, which is not credible, particularly in light of the Applicant’s credible denial and the time of day when the events occurred.
The time at which the Applicant’s vehicle was said by the Respondent to have arrived in the parking bay (before 11:10), while the time of the arrival of the Respondent’s tow truck (at 11:36), almost immediately after the Applicant said he arrived, is so fortuitous for the Respondent that the credibility of the Respondent becomes an issue.
On balance, the Tribunal prefers the evidence of the Applicant when there is inconsistency in the evidence.
The Tribunal therefore concludes that the sequence of events is substantially in accord with that described by the Applicant. That is, the Applicant arrived and parked at approximately 11:35, shopped at the Valley Convenience Store for less than 10 minutes, and returned to find his car in the process of being towed.
Based on this version of events the Tribunal is satisfied that the Applicant was not in breach of the Parking Contract. As a result of this conclusion, the Tribunal further concludes that the Respondent was not entitled to remove the Applicant’s vehicle and that, in doing so without lawful authority or reason, it is not entitled to require any payment from the Applicant.
The Applicant is entitled to recover the $550.00 he paid to recover his vehicle from the Respondent.
Alleged damage to the Respondent’s sign
In addition to the $550.00 that the Applicant had to pay for the towing and storage of his car by the Respondent, the Respondent required the Applicant to pay $110.00 for alleged damage to Respondents parking sign.
The Applicant’s evidence was that there was no sign in the parking bay he occupied. He said:
SW: So there was signage on the right car park. The one that I was in, there was none. So there was two car parks that were signed. There’s one on the right. Now, the point is, when I’ve seen it, and when I’ve seen the car park, that hasn’t been in that location.
And later:
SW: I would agree that that’s conducive that there’s either a sign or there’s Blue-Tack that’s been pulled off. And what I’m honestly saying is that on the right-hand bay there was a sign. On my bay that I pulled into, there wasn’t. I was still under the understanding that I was covered by the terms, though.
This admission in evidence is somewhat adverse to the Applicant because he says, and we accept as truthful, that his bay had no sign. The Applicant conceded, against his interest, that he believed he was bound in any event by the parking terms and conditions displayed in the adjacent parking bay.
The Respondent offered no credible evidence to support its assertion that the Applicant had removed or damaged the Respondent’s sign, nor any evidence concerning the value of the sign.
We are satisfied that the Applicant did not damage the Respondent’s sign, and that the sign was not present when the Applicant first parked his car.
As a result, the Respondent was not entitled to seek compensation of $110.00 from the Applicant and has to repay the Applicant this amount.
Other Grounds Claimed by the Applicant
Because the Tribunal has found that, the Applicant did not breach the Parking Contract it is unnecessary to consider the further grounds on which the Applicant could seek a remedy.
Conclusions
The Applicant is entitled to recover the $550.00 cost imposed on him by the Respondent because the Applicant did not breach the Parking Contract.
The Applicant is entitled to recover the $110.00 cost imposed on him by the Respondent for allegedly damaging or removing the Respondent’s sign because the Applicant did not damage or remove the sign.
The Applicant sought to recover direct costs he has incurred amounting to, first, $10.12 for transport to the Respondent’s holding yard to recover his vehicle and, second, the filing fee of $61.00 to commence this matter.
Under the Queensland Civil and Administrative Act and Rules, in a matter of this type – being a minor civil dispute, not being a debt – the Tribunal is able to give costs only amounting to the filing fee. The $10.12 claimed is not an allowable cost.
In exercising our discretion in the matter of costs, we are satisfied that, because he has succeeded in the substance of his claim, the Applicant is entitled to recover his filing fee of $61.00.
Decision
The Respondent is to pay the Applicant $721.00 within 14 days.
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