Topaloglu v UPS SCS (Australia) Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:	Topaloglu v UPS SCS (Australia) Pty Ltd [2011] QSC 217
PARTIES:	MITHAT TOPALOGLU (plaintiff) v UPS SCS (AUSTRALIA) PTY LTD (defendant)
FILE NO:	11997 of 2003
DIVISION:	Trial Division
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	3 August 2011
DELIVERED AT:	Brisbane
HEARING DATES:	31 May, 1 and 2 June 2011
JUDGE:	Applegarth J
ORDERS:	Judgment for the defendant.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – OFFER AND ACCEPTANCE – ACCEPTANCE – GENERALLY – where plaintiff engaged defendant freight forwarding company to arrange for a container of goods to be shipped to Izmir, Turkey – where plaintiff alleged an oral contract for “door-to-door” delivery – where defendant alleged that the contract was on written terms contained in a series of faxes sent to the plaintiff – where written terms referred to delivery only to Izmir Port –where plaintiff received, packed and sent the required container – where container delivered by a carrier to Izmir Port – where container remained in that port and was allegedly “nationalised” by Turkish authorities – whether plaintiff had accepted the written terms offered by the defendant – whether defendant liable for loss of plaintiff’s goods
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 cited Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 followed Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220; [1971] HCA 26 cited Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 discussed Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36 cited
COUNSEL:	N M Cooke QC for the plaintiff M J Luchich for the defendant
SOLICITORS:	Forbes Dowling for the plaintiff O’Reilly Sever & Co for the defendant

1. The plaintiff sues the defendant over the loss of goods that were shipped to Turkey in 1998.  He claims that he and the defendant entered into a contract by which the defendant agreed to:

(a)transport or cause to be transported a container of “personal effects” from Bundaberg to the address of his brother-in-law in Izmir, Turkey;

(b)arrange and be responsible for the clearance of the goods through customs in Australia and in Turkey;

(c)advise if action was required on the plaintiff’s part for any of the above matters to be completed.

1. The defendant denies that any such contract was made.  It carries on business as a freight forwarder, and is not in the business of itself shipping goods from Australia to overseas, or in clearing goods through customs in a foreign country.  Its business as a freight forwarder involves making arrangements as agent of the owner of goods with carriers, be they trucking companies, rail carriers, shipping lines or airlines.  In this case, the defendant says that it contracted to arrange for the transport of a container that contained the plaintiff’s goods from Bundaberg to Izmir Port, and that it performed this contract.  Its case is that it agreed to act as the plaintiff’s…