Toll Global Forwarding Pty Ltd v Theiss Pty Ltd - [2015] WASC 364

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: TOLL GLOBAL FORWARDING PTY LTD -v- THEISS PTY LTD [2015] WASC 364

CORAM: KENNETH MARTIN J

HEARD: 4 - 7 & 11 MAY 2015

DELIVERED : 2 OCTOBER 2015

FILE NO/S: CIV 1666 of 2012

BETWEEN: TOLL GLOBAL FORWARDING PTY LTD
Plaintiff
AND
THEISS PTY LTD
First Defendant
DECMIL AUSTRALIA PTY LTD
Second Defendant
KENTZ PTY LTD
Third Defendant

Catchwords:

Contract - Freight - Sea carriage of goods from Thailand - Claim for additional freight remuneration - Fixed price contract - Schedule of rates for carried cargo - Quantum meruit - Contractual variation - Promissory estoppel - Misleading or deceptive conduct - Precontractual representations - Postcontractual representations - Unconscionable conduct

Legislation:

Trade Practices Act 1974 (Cth)

Result:

Judgment for the plaintiff in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J Colbran QC & Mr T D Best
First Defendant            :     Mr M H Zilko SC & Mr J Jacobson
Second Defendant        :     Mr M H Zilko SC & Mr J Jacobson
Third Defendant           :     Mr M H Zilko SC & Mr J Jacobson

Solicitors:

Plaintiff:     P A Martino
First Defendant            :     Tottle Partners
Second Defendant        :     Tottle Partners
Third Defendant           :     Tottle Partners

Case(s) referred to in judgment(s):

Austman Pty Ltd v Mount Gibson Mining Ltd [2012] WASC 202
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51
Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317,
Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362
Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457
Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd [2005] SASC 483
John Goss Projects Pty Ltd v Leighton Contractors Pty Ltd [2006] NSWSC 798; (2006) 66 NSWLR 707
Lodder v Slowey [1904] AC 442
Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635
Pan Ocean Shipping Co Ltd v Credit Corp Ltd [1994] 1 WLR 161; [1994] 1 All ER 470
Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; (2001) 208 CLR 516
Sopov v Kane Constructions Pty Ltd [No 2] [2009] VSCA 141; (2009) 24 VR 510
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387
Wormald Engineering v Resources Conservations Co International (1988) 8 BCL 158
KENNETH MARTIN J:

Introduction

In this five day commercial trial, the plaintiff corporation, Toll Global Forwarding Pty Ltd (TGF), pursues the defendants for increased remuneration, beyond the levels contractually stipulated under an elaborate written agreement for the provision of sea carriage services to a joint venture of the three defendant corporations (of which Thiess Pty Ltd is named on…

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.

Keep reading for free

Create a free CaseChat account to read Toll Global Forwarding Pty Ltd v Theiss Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] WASC 364
Decision Date: 2 OCTOBER 2015

CaseChat Overview and Summary

In the case of Toll Global Forwarding Pty Ltd v Theiss Pty Ltd, the plaintiff, Toll Global Forwarding, sought to recover additional freight charges for the carriage of goods from Thailand. The dispute arose out of a fixed price contract with the defendant, Theiss Pty Ltd, and involved a schedule of rates for the transported cargo. Toll Global Forwarding argued for a quantum meruit recovery, claimed a contractual variation, and asserted promissory estoppel, misleading or deceptive conduct, and unconscionable conduct under the Trade Practices Act 1974 (Cth). The Federal Court was tasked with determining the validity of these claims.

The central legal issues in the case were whether Toll Global Forwarding was entitled to additional freight charges beyond the fixed price contract, whether the contract had been varied to include these additional charges, and whether promissory estoppel, misleading or deceptive conduct, or unconscionable conduct had occurred. The court had to examine the contractual terms, the evidence of any variation, and the applicability of the equitable and statutory principles invoked by Toll Global Forwarding. The defendants argued that there was no special disadvantage on the part of Toll Global Forwarding, which is a necessary element for claims of unconscionable conduct.

The Federal Court held that Toll Global Forwarding's claims for additional freight remuneration, contractual variation, and equitable estoppel were not substantiated. The court found that there was no evidence of a variation to the contract that would entitle Toll Global Forwarding to additional charges. Regarding promissory estoppel, the court noted that the principle requires a clear and unequivocal promise that the promisor will not enforce strict legal rights. The court concluded that Toll Global Forwarding had not met this burden. For the claim of unconscionable conduct, the court held that there was no special disadvantage on the part of Toll Global Forwarding as required by section 51AA of the Trade Practices Act. The court cited Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd for the proposition that a mere inequality of bargaining power does not constitute special disadvantage.

The court dismissed all claims made by Toll Global Forwarding, and no further orders were made. The decision underscores the necessity for clear evidence of contractual variation, estoppel, and special disadvantage for such claims to succeed.

Orders

Orders of the court

Full text does not contain this section.

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

For the purposes of invoking principles of equitable estoppel see also the observations made by Owen J in the The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239; (2008) 39 WAR 1 first instance decision concerning this principle. The estoppel claim fails. Paragraph 83 of TGF's statement of claim contends that the conduct of TDKJV 'as referred to in paragraphs 43A - 43D, 56 - 64 and 71 - 80 above is unfair and unconscionable contrary to s 51AA of the TPA'. In consequence (see par 84), the plaintiff claims damages or relief pursuant to s 87 of the TPA 'including orders for the payment of the amounts set out in paragraph 64 above'. No further detail concerning the unconscionability plea was provided by TGF under its particulars of June 2012 or April 2013. Effectively then, the underlying facts raised by TGF in order to support this plea amount to a rehash of averments otherwise framed under chapeaux already considered. Section 51AA (which now finds itself exported to the Australian Consumer Law - see s 20 of sch 2 to the Competition and Consumer Act 2010 (Cth)) provided:(1)A corporation must not, in trade or commerce, engage in conduct that is unconscionable within the meaning of the unwritten law, from, time to time of the States and Territories.(2)This section does not apply to conduct that is prohibited by s 51AB or 51AC. Again, there was no real development of any argument to advance this statutory cause of action by TGF under its written opening or written closing submissions. TDKJV, on the other hand, contends that here, the plea of statutory unconscionability is fundamentally misconceived - on the basis that there is no plea or evidence that 'Toll was at a special disadvantage as required by 51AA'. The defendants refer to Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 [11] - [14]. In Berbatis, Gleeson CJ (who with Gummow, Hayne & Callinan JJ gave the majority judgments, Kirby J dissenting) had referred to the second reading speech introducing s 51AA (see [5]). At [7] he noted a distinction between use of the word 'unconscionable' in everyday speech and the 'more precise' legal meaning of the term. After referring to observations of Fullagar J in Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362, 405 Gleeson CJ said:The common characteristic of such circumstances is that they place one party at a serious disadvantage in dealing with the other. After discussing Bridgewater v Leahy [1998] HCA 66; (1998) 194 CLR 457, 485 Gleeson CJ said at [11]:One thing is clear, and is illustrated by the decision in Samton Holdings itself ([2002] FCAFC 4; (2002) 117 FCR 301). A person is not in a position of relative disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.