Vanbeek v SNB Plus 3 Pty Ltd t/as Macleay Trailers and Steel Fabrications
[2023] NSWCATCD 163
•11 December 2023
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Vanbeek v SNB Plus 3 Pty Ltd t/as Macleay Trailers and Steel Fabrications [2023] NSWCATCD 163 Hearing dates: On the papers Date of orders: 11 December 2023 Decision date: 11 December 2023 Jurisdiction: Consumer and Commercial Division Before: K Ross, Senior Member Decision: (1) SNB Plus 3 Pty Ltd is to pay to David Vanbeek the sum of $8160.00 immediately.
(2) David Vanbeek does not owe SNB Plus 3 Pty Ltd any monies claimed for storage fees.
Catchwords: CONSUMER LAW: Failure to deliver goods – major failure to comply with consumer guarantee- order for price of goods and services to be refunded.
Legislation Cited: Australian Consumer Law
Cases Cited: Nil
Texts Cited: Nil
Category: Principal judgment Parties: David Vanbeek (Applicant)
SNB Plus 3 Pty Ltd t/as Macleay Trailers and Steel Fabrications (Respondent)File Number(s): 2022/00396468 (previously GEN 22/53653) Publication restriction: Unrestricted
REASONS FOR DECISION
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This application arises out of an agreement for the purchase of a trailer. The applicant seeks a refund of the purchase monies, whilst the respondent seeks storage costs and to retain the purchase monies.
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The matter was listed for hearing on 7 September 2023. At the hearing the respondent was represented by Mr Brad Martin, who said that he had not received a copy of the applicant’s documents. The Tribunal arranged for Registry to email and post a copy of the documents to the respondent and made directions to enable the respondent to file and serve any documents on which he wished to rely. The parties agreed that a further hearing could be dispensed with.
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This is the decision and reasons for decision.
Applicant’s evidence
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The applicant gave evidence that he received a quotation dated 28 June 2022 from the respondent for a trailer. The quotation was for $7500 inclusive of GST and stated “Freight to your address is $660 extra”. The applicant paid a deposit of $3750.00 on 4 July 2022. He requested that the trailer be delivered to him. On 28 September 2022 he received the final invoice from the respondent, for $4410 (being $3750 for the balance and $660 for freight). He paid that amount on the same day.
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On 3 October 2023, the applicant emailed the respondent:
“Hi Brad. I haven’t received my trailer yet. Are you able to give me the details of the transport company so I can call them to see where things are at.”
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On 4 October 2022 Mr Martin responded:
“I am away at the moment. I will make a call later to confirm who is collecting it and come back to you.”
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On 7 October 2022 the applicant sent a further email, requesting details of the freight company. Mr Martin replied:
“Trailer is still sitting here at my factory sorry about this. Trying to get a new freight guy to move it. I will keep you update (sic) this week.”
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On 21 November 2022 the applicant sent an email to the respondent. He stated that as the trailer had not been delivered to him, he required a full refund. He stated:
“As per the last conversation I had with yourself you were going to provide me with the transport company’s name number and email. You told me my trailer had been picked up by the carrier two weeks previous and I should have already received my trailer. You suggested that once you got off the phone you would send me the details. To date I still have not received any correspondence with regards to this.
As you have clearly stated that my custom built tilt trailer has been picked up and I have still not received it I will now be making a full report of the trailer being stolen with NSW Police. This must obviously be the case.
Please respond in writing by close of business today Monday 21st November 2022.”
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Sarah Martin replied:
“Your trailer has been completed for at least two months now and is still sitting here.
We spoke to you on the 10/11/2022 and you advised me that you would be coming to collect the trailer from us. We also sent you photos of the trailer finished at this time.
You also stated you would be contacting the police to say the trailer is stolen. You are aware this is not the case and would be making a false statement. Please let me know when the trailer will be collected or I will be charging storage as of last week. The trailer has been sitting here long enough. The storage fees are in our terms and conditions.”
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On 29 November 2022 the applicant emailed the respondent:
“I have never stated that I would collect the trailer from you. As I have paid you a delivery fee when I paid you in full for the trailer, could you please advise me when it will be delivered?”
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On 4 December 2022 the applicant commenced these proceedings.
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On or about 7 February 2023 the respondent issued invoice 00000016 in the sum of $4510, for storage fees @ 55 per day from 17 November 2022 to 07 February 2023. The respondent continues to claim storage fees @ $55 per day.
The respondent’s evidence
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The respondent says that it gave the applicant a quote on 28 June 2022. The applicant accepted the quote and the trailer was built. The respondent says that the trailer was completed in October 2022, and photos of the trailer were sent to the applicant on 18 October 2022. Those photos show a trailer on the driveway of a residential building.
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Mr Martin on behalf of the respondent says that on 10 November 2022 the applicant said that he would come to the factory to collect the trailer. Freight was cancelled. The cost of freight has now increased.
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The respondent seeks that the applicant collect the trailer upon payment of the storage fees, less a refund of $660 which was paid by the applicant for freight.
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Mr Martin provides a copy of a statement which he says is from Phillip Macleay, an employee. That statement says that Mr Macleay was present when Mr Martin took the call from the applicant. He says that the applicant said that he would be up to pick the trailer up on 17 November 2023. Mr Macleay did not attend the hearing and was not cross examined.
The applicant’s evidence in reply
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The applicant strenuously denies saying that he would come and collect the trailer. He said that Mr Martin said that the trailer was on the way, and he replied “That’s good because otherwise I will have to get someone to collect it.”
Consideration
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I am satisfied that the applicant is a consumer who purchased a trailer from the respondent. The respondent was at the time in the business of selling trailers. The claim is a consumer claim and the Tribunal has jurisdiction to hear and determine the dispute.
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There is no dispute that the agreement between the parties was for the respondent to deliver the trailer to the applicant. He paid a fee to the respondent for the respondent to do so. At all times he has maintained that he did not cancel that arrangement. I accept his evidence about that matter. I note that whilst Mr Martin supplied a statement from Mr Macleay, the statement is not witnessed by any person. The statement is not sworn. The witness was not made available to give evidence at the hearing. I can place no weight on it.
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The respondent has provided no evidence that it had ever had freight organised before the alleged conversation on 10 November 2023. The respondent had an obligation under the agreement to arrange for the trailer to be delivered to the applicant. There is no evidence that it took any action to fulfil that obligation.
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Under the Australian Consumer Law (ACL) (s62) there is an implied warranty that services will be supplied in a reasonable time, if no time is set out in the agreement. The services (delivery of the goods) have not been supplied in a reasonable time or at all. The failure to deliver the goods represents a major failure to comply with the consumer guarantee because a reasonable consumer would not have entered into the agreement with the respondent had it known that the respondent would refuse to deliver the goods in accordance with the agreement. I am satisfied that the applicant is entitled to a refund of the monies paid for the goods and the services.
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The respondent relies upon the terms of its agreement to support its claim for storage fees. However, the entitlement to charge storage fees applies only where the agreement provided for the consumer to collect the trailer. The agreement with the applicant was for the trailer to be delivered to him. In these circumstances the respondent is not entitled to charge storage fees.
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I am accordingly satisfied that the applicant is entitled to the orders he seeks. The respondent is to refund the sum of $8160 to the applicant forthwith. The respondent is not entitled to the storage fees which it has claimed.
Order
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SNB Plus 3 Pty Ltd is to pay to David Vanbeek the sum of $8160.00 immediately.
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David Vanbeek does not owe SNB Plus 3 Pty Ltd any monies claimed for storage fees.
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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: 08 August 2024
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