Whipp v ASE Lakefront Pty Ltd

[2017] ACAT 105

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WHIPP v ASE LAKEFRONT PTY LTD (Civil Dispute) [2017] ACAT 105

XD 379/2016

Catchwords:              CIVIL DISPUTE – counter claim – lack of documentary evidence – why accurate information is important – whether the applicant was employed by the respondent or another entity – whether the applicant took reasonable care of a van loaned to him as part of his employment

Legislation cited:      Civil Law (Property) Act 2006 s 205

Cases cited:               Rookes v Barnard [1964] AC 1129

Welch v Erica’s Aesthetics Pty Ltd [2017] ACAT 68

Tribunal:                   Senior Member H Robinson

Date of Orders:  13 December 2017

Date of Reasons for Decision:         13 December 2017

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          XD 379/2016

BETWEEN:

NATHAN WHIPP

Applicant

AND:

ASE LAKEFRONT PTY LTD

Respondent

TRIBUNAL:   Senior Member Robinson

DATE:13 December 2017

ORDER

The Tribunal orders that:

1.The respondent/counterclaimant is amended to ASE Lakefront Pty Ltd.

2.The application, being withdrawn, is dismissed.

3.The applicant is to pay the respondent/counterclaimant:

(a)     $199.48 for lights purchased on its account;

(b)     $70 for the application fee.

………………………………..

Senior Member Robinson

REASONS FOR DECISION

Background

1.This matter commenced with the applicant, Mr Whipp, making a claim for unpaid employment entitlements against an individual, Mr Tominac. A third entity, a company by the name of ASE Lakefront Pty Ltd (Lakefront), of which Mr Tominac is a director, then purported to make a ‘counterclaim’ against Mr Whipp. The matter was set down for conference. The matters discussed at that conference are not admissible in evidence before the Tribunal[1], but the outcome was that directions were made to prepare the matter for hearing, including directions for the appropriate identification of the respondent. Shortly thereafter, Mr Whipp then sought to withdraw the application, on the basis that it was more appropriately pursued in another forum, and hence the name of the respondent to the application never amended.[2] Lakefront, however, pressed its counterclaim.

[1] ACAT Act section 34(3)

[2] The tribunal’s jurisdiction in employment law matters has since been considered in Welch v Erica’s Aesthetics Pty Ltd [2017] ACAT 68

2.When the matter came before the Tribunal for hearing, a preliminary question was whether the counterclaim could be pursued in circumstances in which the purported counterclaimant was not the correct respondent to the original claim. The parties agreed that, in light of Lakefront’s intention to prosecute this matter in any case, and given the parties were conversant on the facts, the most efficient approach was to allow the respondent to the application/counterclaimant to be amended to Lakefront, and the matter to proceed to hearing. As such, it is more appropriate to refer to Lakefront as the applicant and Mr Whipp as the respondent, but in order to avoid further confusion, I will instead refer to each by their respective names.

The counterclaim

3.Lakefront alleges that Mr Whipp either:

(a)breached his contract with it; or

(b)breached his duty of care to it; and

caused it the following:

(a)damage to a Mercedes work van, with a repair cost of $11,827.01; and

(b)loss of a mobile phone of $199.00.[3]

[3] Initially a claim for $459, but the parties later agreed that the model of phone was worth a lower value

4.Lakefront also claims the costs of a non-work related purchase from trade supplier that Mr Whipp placed on the work account. This purchase was for $199.48. Mr Whipp concedes that he was contractually required to repay the amount, but says that, through its actions, Lakefront has waived that requirement.

Preliminary comments – why accurate documentation is important

5.This Tribunal is regularly asked to resolve disputes between parties to commercial relationships that are best described as ‘informal’ – arrangements characterised by handshakes, ‘gentleman’s agreements’ or simply day to day practice rather than by written contracts. No doubt, such arrangements are the mainstay on some businesses, and there are likely many advantages, including flexibility and efficiency. But there are also risks. These arrangements may work well when the parties are in agreement, but when things go wrong, the parties, having spent little time or energy formalising their agreement, must then spend considerable time and resources working out what was actually agreed.

6.Typically, when the matter becomes litigious, the parties then look to the Tribunal to sort out the details. On one level, this is to be expected – the Tribunal is informal, accessible and flexible. We are understanding when parties have documentation that is far from perfect. However, there are limits to the kind of flexibility that can be shown where parties have conducted themselves with such informality as to make it impossible to make findings of fact. It is not the role of this Tribunal to rewrite agreements with the benefit of hindsight, to insert terms of its own choosing where contentious issues were left unaddressed, or to construct agreements that were never the subject of a meeting of minds. The limitations of the Tribunal’s role are evident in this case.

Credibility

7.The lack of probative documentary evidence of several key issues arising in this matter means that determination of liability comes down to the comparative credibility of the oral evidence given by the two witnesses. Perhaps unsurprisingly in such circumstances, each party asked that I find the other’s witness unreliable. I therefore make the following observations.

8.Certainly, there were irreconcilable inconsistencies in the evidence of the parties. However, I accept that the differences are less a result of deliberate deception by a witness, than a consequence of the passage of time, misremembrance, incorrect assumptions and both parties drawing different inferences and emphasises on casual, informal and imprecise conversations.

9.That said, while I decline to find that either witness was in any way telling untruths, I am satisfied that the evidence of both witnesses was, at times, unreliable – not in the sense of being deceptive, but in the sense of being inaccurate. Those inaccuracies are an unfortunate consequence a lack of documentation with which to check or confirm recollections. As it is Lakefront who bears the onus of proof, it is Lakeside who is particularly compromised in its ability to present its case.

The facts

10.It is not in dispute that in May 2009, Mr Whipp was engaged as an electrician by a company of which Mr Tominac was a director. At the commencement of the hearing, the identity of the initial employing company was in dispute, but for reasons set out below, I am satisfied that the initial employing company was not Lakefront, but rather All Star Electrical Services (ACT) Pty Ltd (All Star). All Star has since changed its name to Allstar Electrical Oracle (ACT) Pty Ltd (on 4 August 2011), but I will continue to refer to it as ‘All Star’ in these reasons. For its part, Lakefront was not registered until 4 August 2011.

11.The employment contract was verbal. There was no written offer of employment, no written employment contract, no provision of workplace policies or other documentation, and indeed no apparent mention of an Award or other industrial instrument. On Mr Tominac’s evidence, the offer of employment was a “sales pitch”[4] that included an offer of a funded work vehicle and a telephone. On either version of the evidence, the discussions were minimal, but the arrangements apparently quite good.

[4] Transcript of proceedings page 41, lines 7-8

12.Sometime after Mr Whipp commenced employment with Allstar, Mr Tominac provided him with an Apple iPhone for work purposes. It is not in dispute that this phone was not returned at the cessation of Mr Whipp’s employment, and Lakefront seeks compensation for this.

13.Significantly, during the course of the above events, Mr Whipp was engaged as an employee by Allstar, not Lakefront.  Lakefront did not yet exist. 

14.Sometime after Mr Whipp commenced employment, probably in around 2011[5], Mr Tominac purchased a 2002 model Mercedes Vito 2.1 litre van (the van) from Mr Robert Platzer, another electrician who he knew. Mr Tominac’s evidence was that he “thought” he paid $11,000 for the van[6], but there is no documentary evidence of this before the Tribunal.

[5] Transcript of proceedings page 19, line 22

[6] Transcript of proceedings page 19, line 23

15.Mr Tominac initially said that he purchased the vehicle on behalf of Lakefront[7], but this is not clear on the evidence. No registration papers or other proof of ownership of the vehicle are before the Tribunal, and nor is there any evidence of assignment of the vehicle from one entity to another at a later time. There is also no evidence as to the month the vehicle was purchased. A statement from Mr Platzer, made in September 2016 and filed in these proceedings, confirms that he sold the vehicle to Mr Tominac, but does not state the date of the sale or the price.

[7] Transcript of proceedings page 20, line 10

16.As to the condition of the vehicle at the time of sale, Lakefront relied on both the oral evidence of Mr Tominac and the statement of Mr Platzer.

17.Mr Tominac’s oral evidence was that the van “…was in good condition and commensurate with the kilometerage…a decent van only in its mid-life”[8]. I have no reason to doubt this description, although ‘good condition’ it is ultimately subjective.  No photographs, condition reports or anything more objective was provided to the Tribunal.

[8] Transcript of proceedings page 19, lines 37-39

18.Mr Platzer’s statement said that the van was in good working order with “minor wear and tear but no scratches or dents”[9]. I accept this evidence, far as it goes, but that it not very far. The statement was made five years after the sale, it does not provide any real detail, and Mr Platzer was not made available for cross examination. The weight I can give his statement is fairly minimal, but it is largely consistent with Mr Tominac’s evidence, and does not appear to be controversial.

[9] Statement of Robert Platzer, 20 September 2016

19.There is some discrepancy in evidence as to the odometer reading at the time of purchase, with Mr Tominac stating that the vehicle had about 100,000 km[10] on it and Mr Whipp saying the vehicle had 200,000km on it and “closer to 220,000lm” when he returned it.[11] Mr Platzer’s evidence was that the vehicle had 120,000 km on the odometer at the time is was sold to Mr Tominac. A Transtate Tyre and Suspension invoice of 22 April 2015 states an odometer reading as at that date of 141,652km (Transtate Tyre Invoice). On balance, I accept the lower number is more accurate, as it is consistent with the documentary evidence.

[10] Transcript of proceedings page 19, line 19

[11] Transcript of proceedings page 75, lines 13-14

20.Mr Tominac said he owned the van for about six months before providing it to Mr Whipp.[12] The parties agree that during this time, it was driven by another employee, Mr Doug Hynson.

[12] Transcript of proceedings page 20, line 44

21.Mr Whipp relied upon a written statement signed by Mr Hynson and filed in these proceedings. In that statement, Mr Hynson said that, in the time he drove the vehicle, it was involved in a smash on Belconnen way, that “none of the doors worked properly…the back door was broken…the front was always coming of…the back interior/trim was broken.” Mr Hynson’s statement is as problematic as Mr Platzer’s, if not more so. It was not sworn and Mr Hynson was not available for cross examination. Moreover, Mr Whipp conceded he helped Mr Hynson write it –indeed, he may have written it for Mr Hynson’s signature, as there is a corrected spelling mistake in Mr Hynson’s name in the opening sentence.  In his statement, Mr Hynson states that he worked for “Allstar Electrical for around 2 years, 2008 – 2010”. This timeframe is inconsistent with the evidence of Mr Tominac that he purchased the van in 2011. When questioned, Mr Tomasic was insistent Mr Hynson resigned in 2011.[13] In the circumstances, I attach little weight to the statement of Mr Hynson.  I accept the uncontested evidence that Mr Hynson drove the van for some months before it was made available to Mr Whipp.

[13] Transcript of proceedings page 21, line 12

22.There was also conflicting evidence between the parties as to terms upon which the vehicle was provided to Mr Whipp. Even on Mr Tominac’s evidence, the handover conversation was brief. Both parties agree that Allstar bore the cost of servicing and maintaining the vehicle, and Mr Whipp had an obligation to ensure that this was done through an nominated mechanic, but otherwise the terms of the agreement appear to have been vague. Nothing was put in writing.

23.Turning to the events of the handover, Mr Tominac’s evidence was that he conducted a visual inspection of the van prior to handover, but no record of a logbook, inspection report or documentary evidence as to the condition of the van at the time it was provided to Mr Whipp was put before the Tribunal. Servicing records, fuel logbooks and another records from the period that Mr Whipp had possession of the vehicle also were not produced.

24.It is not entirely clear on the evidence when in 2011 the conversations between Mr Tominac and Mr Whipp happened, and what date the van was given to Mr Whipp for his use.

25.Whatis clear on the evidence is that in early 2011, Mr Tominac was conducting his business through Allstar, under the trading name of ‘Allstar Electrical’. It was only in August 2011 that Mr Tominac made a number of changes to his business arrangements, including on 4 August 2011, registering Lakefront.[14]

[14] Current and Historical Organisation Extract, Infotrack, 7 March 2014

26.Under questioning from the Tribunal, Mr Tominac explained his reason for new company structure as follows:

It was a period of change and transition. My financial advisor and accountant in his wisdom decided that, you know, we'd finished a couple of big jobs and, for whatever reason, his leaning was to, you know, to cut ties with the old company and create a new entity and move on with the next new job that we signed, which was a major contract at Kingston which was the Lakefront apartments, and therefore it was called ASE Lakefront.[15]

[15] Transcript of proceedings page 15, lines 22-28

27.Under further questioning, Mr Tominac was very vague on the technicalities of how his business was transferred from one company to another. He said that his understanding was that:

… all the ... vans …all the wages and conditions that we were previously employing, all that carried through to ASE Lakefront. All the equipment … basically the employment continued on with the new company.”[16]

[16] Transcript of proceedings page 68, lines 25-29

28.For reasons discussed below, this is not an accurate reflection of the legal position. It is particularly inaccurate in relation to employment contracts. Whatever the legal technicalities, however, the evidence shows that Lakefront began to operate under the name “Allstar Electrical” toward the end of 2011, and Lakefront was the entity responsible for the significant new Lakefront project in Kingston.

29.Around this time (the last quarter of 2011) Mr Whipp was working on the Lakefront project, where Lakefront was the entity with the relevant contract. However, I am satisfied that at no stage during his employment with Allstar was Mr Whipp advised that his employer was to change to Lakefront. He continued to receive payslips and group certificates in the name of Allstar throughout 2012. To the extent that Mr Tominac was in fact doing business through a different entity, Mr Whipp had no reason know. By his own admission, he did not care.[17]

[17] Transcript of proceedings page 85, line 42

30.On 2 October 2012, Mr Whipp purchased lights worth $199.48 from a trade vendor on the “Allstar Electrical (Canberra)” company account. These purchases were for his private use. Mr Whipp’s evidence was that it was his understanding that he was allowed to use the company account for this purpose, and get a corporate discount, provided he paid the money back. Mr Tominac strenuously denied any such thing was allowed. Shortly thereafter, Mr Tominac summarily terminated Mr Whipp’s employment. In determining this matter, I do not need to decide whether Mr Whipp’s actions in putting the lights of the company account was misconduct. However, on any view of the evidence, even Mr Whipp’s own, he was required to pay his employer back for the lights.

31.Following the termination of his employment, Mr Whipp returned the van keys to Mr Tominac. He also attempted to repay the $199.48, but Mr Tominac refused the money. Mr Tominac described his reaction to that as follows:

I was waiting there for him to return with my van, because I couldn't get through. The only mention ever any repayment when I was standing there talking to him to his face saying that no - I think I was a little bit upset at the time. I said, “No. Keep the money. You can give it to the police when they get here. “That's my exact words. That's my exact words.”[18]

[18] Transcript of proceedings page 47, lines 18-23

32.Mr Tominac agreed that he had not attempted to recover the money since.[19] Apparently, he was prepared to let things go, until Mr Whipp commenced these proceedings.

[19] Transcript of proceedings page 48, lines 4-5

33.Mr Tominac’s evidence is that when he inspected the van upon its return, there was extensive damage to it. Again, however, he did not take any photographs at that time and did not complete any kind of inspection report. What he did, instead, he said, was to take the van to ACT Autobody Works for an assessment.

34.Mr Tominac provided a copy of a quote from ACT Autobody Works that lists an extraordinary amount of the work that needs to be done on the van, totalling $11,827.01. The quote is undated[20], although Mr Tominac’s evidence was that the quote was sought shortly after Mr Whipp returned the van. It appears to have been prepared for an insurer assessor. Mr Tominac agreed that of the work in the quote was not done, with the exception of a broken front light.[21] He did not, at that time, seek to recover any of the costs from Mr Whipp. He did not provide the quote to Mr Whipp.

[20] There is a date of 18 April 2016 in the bottom corner, but Mr Tominac’s evidence was that this was the date it was most recently printed, not the date of the quote

[21] Transcript of proceedings page 51, lines 3-4

35.Once the front light was fixed, the van was given to another Lakefront employee, Mr Tallon[22]. Mr Tallon drove the van until sometime in 2014, when it was “parked” in a yard. It was, by that time if not before, according to Mr Tominac, “beyond the state of commercial viability to fix.”[23]

[22] Transcript of proceedings page 24, lines 25-40

[23] Transcript of proceedings page 26, lines 43-45

36.Mr Tominac attached photographs of the van to his statement. They show the van in a very poor state of repair. In this evidence to the Tribunal, Mr Tominac frankly conceded that these were taken in 2014, some two years after Mr Whipp had ceased employment, and after Mr Tallon had driven the vehicle for much of that time.

37.For his part, Mr Whipp admits that he cracked an indicator on the van, but otherwise denies damaging it.

The employment contract claim – which entity was Mr Whipp employed by?

38.The first ground of Lakefront’s application is that by extensively damaging the van, Mr Whipp breached a term of his employment contract, being a duty to take reasonable care of the van.

39.In order to succeed in such a claim, Lakefront needed to establish that Mr Whipp was an employee of Lakefront at the time that he used the van.

40.As noted above, Mr Tominac’s original position was that Mr Whipp was employed by Lakefront from June 2009 to October 2012. In support of this, Mr Tominac tendered a statement entitled ‘payroll advice’, prepared under the letterhead of Lakefront, and purporting to cover the period “1 June 2009 to 20 March 16”[24] (payroll advice). This payroll advice is clearly inaccurate, as Lakefront did not exist until August 2011.

[24] Tominac statement, annexure A

41.Upon reflection at the hearing, Mr Tominac said that he “thought” that Mr Whipp “started with Oracle” in 2009, although he was “not exactly 100 percent sure of the entity.”[25] The reference to ‘Oracle’ appears to be a reference to Allstar, after it changed its name.

[25] Transcript of proceedings page 16, lines 17-18

42.It was apparent from this evidence, and Mr Tominac’s evidence more broadly, that Mr Tominac did not have a strong grasp on his business structures – by his own admission, he acted on advice. While this is not necessarily unreasonable, it further comprises Lakefront’s ability to make out its case, given Mr Tominac was its only witness.

43.As set out in the facts, above, Mr Tominac assumed, based on advice, that his employees would simply transfer from Allstar to Lakefront. This is not how the law operates. An employer cannot simply transfer its employees between entities without their knowledge or consent. Rather, where one company sells a business to another, the first business must terminate the employees’ employment, and the new employer may re-engage them.[26] Where there is a re-engagement, provisions in the Fair Work Act 2009 deal with the transfer of entitlements.

[26] Except in the case of a transfer by share-sale, where the shares in a corporate employer are sold to another person, but the identity of the employer itself remains the same

44.It is possible that there was an appropriate process by which employees ‘transferred’ from Allstar to Lakefront. Arguably, the payroll advice could be read as confirming that Lakefront has recognised Mr Whipp’s ‘prior service’ with Allstar for these purposes.  However, with that possible exception, Lakefront provided no actual evidence of Mr Whipp’s employment with it, even though those records should have been in its possession.  All the evidence indicated an employment relationship with Allstar.

45.For his part, Mr Whipp argued that he was at all relevant times employed by Allstar.[27] In support of his case, Mr Whipp filed a series of ‘payroll advice’ summaries and PAYG Payment Summaries for the years ending 2009 through 2012 (payment summaries) that purported to be issued by Allstar. When shown the payment summaries, Mr Tominac declined to positively identify them as Allstar payslips, admitting that he was not familiar with all the paperwork associated with his business. Howver, he did not expressly suggest that anything was amiss with the documents, and (notwithstanding an apparently inaccurate tax file number on some documents) I have no reason to doubt that are legitimate pay records provided by Allstar to Mr Whipp. I accept Mr Whipp’s evidence that he never agreed to work for any entity other than Allstar.

[27] Witness statement of Mr Whipp, annexure NW-1, NW-2

46.Lakefront’s solicitor asked numerous questions of the Mr Whipp which confirmed that Mr Whipp had never examined the ABN or corporate identity of his employer, nor given it any real thought prior to these proceedings. No doubt this is correct. However, this not the point. Certain steps need to be taken to transfer an employment arrangement from one entity to another, and there is no evidence of those steps being taken. In the absence of such evidence, I simply cannot positively conclude that Mr Whipp was, at any relevant time, an employee of Lakefront.  

47.Consequently, while I accept that, in using a van provided by his employment, Mr Whipp had an implied contractual duty to take reasonable care of the vehicle. He also had, on any view of the evidence, a duty to ensure that the vehicle was regularly serviced and maintained.  He further had an obligation to return to iphone.  However, to the extent that those duties arose through the employment relationship, the evidence available shows that they are owed to Allstar, not to Lakefront. Consequently, those aspects of Lakefront’s claim that arise from its employment arrangements with Mr Whipp must be dismissed.

The collateral contract claim

48.As an alternative, Lakefront contended that, whatever the employment relationship between Mr Whipp and Lakefront, Mr Whipp was clearly given the use of a van (and a mobile phone), that use was governed by contractual terms, including an implied term to use the van in a reasonable way, and that at some stage that contract, like the van, became the property of Lakefront.  Lakefront may therefore sue for breach of the contract.

49.The difficulty I have with this submission is that there is no evidence before the Tribunal that there actually is a relevant contract between Lakefront and Mr Whipp.

50.The doctrine of privity of contract provides that only parties to a contract may sue for breaches of that contract, notwithstanding that a third party may be indemnified for any breach.[28] At common law, this doctrine prevented the assignment of benefits under a contract, but that position is now more flexible, at least in relation to the assignment of benefits under a contract. In particular, section 205(1) of the Civil Law (Property) Act 2006 allows a debt or ‘chose in action’ to be assigned. This section provides:

(1) An absolute assignment, in writing signed by the assignor, of a debt or thing in action (other than an assignment expressed to be by charge only) is effective at law to transfer the right to the debt or thing in action if written notice of the assignment is given to the debtor, trustee, or other person, (the liable person) from whom the assignor would have been entitled to receive or claim the debt or thing in action.

[28] Rookes v Barnard [1964] AC 1129, 1187

51.A chose in action is an intangible personal property right recognised and protected by the law. A right to recover damages for lost or damaged property is generally a chose in action capable of assignment under this section, and it is possible that Allstar could assign such a right to Lakefront. However, Lakefront did not rely on section 205(1) as a basis for its claim, and did not produce any “written notice of assignment” as required by the section. Indeed, it has presented no written evidence of assignment or subrogation of the contract, or any part of it, at all. While such evidence may exist (presumably, Mr Tominac’s accountants undertook the relevant paperwork to ensure that rights related to Allstar’s assets were assigned to Lakefront), it was not put before the Tribunal, I am not prepared to simply assume a transfer was effected.

52.However, let us assume, for the purposes of further consideration, that Lakefront could establish the existence of a contractual relationship between itself and Mr Whipp in relation to the van.  I am satisfied that an implied term of any such contract would be that Mr Whipp take reasonable care of the van.  To succeed in making a claim for breach of this term, Lakefront would need to establish, on the balance of probabilities, that Mr Whipp in fact did not take reasonable care of the van. The lack of documentary evidence undermines Lakefront’s ability to do this.

53.The evidence as to current state of the van are the photographs taken by Mr Tominac in 2014.  They confirm that, as at this time, the van was in very poor condition. However, the photographs do not prove that Mr Whipp was responsible for the damage.  Nor are they evidence of the state of the van in October 2012 when Mr Whipp returned it.

54.Rather, to establish that Mr Whipp breached the contract, Lakefront would need to be able to prove two things.

55.First, Lakefront would need to establish the condition of the van at the time it was given to Mr Whipp. This it cannot do. Even assuming that the van was in good condition (for its age) when purchased from Mr Platzer, the van was used by another employee for at least six months before being given to Mr Whipp. There are no photographs or detailed records of condition at the time it was handed over from one employee to the other; nor are there records of maintenance or servicing. While I do not doubt Mr Tominac’s evidence, I nonetheless find it surprising that an employer would provide an employee with a vehicle for his use, for an extended period, without keeping a record of the condition of the vehicle at the time of the loan. Perhaps such conduct demonstrates an admirable level of trust by an employer in its employees, but it is a poor risk management strategy, as it makes it very difficult for that employer to prove any alleged negligent damage.

56.Second, Lakefront would need to show that the vehicle, when recovered from Mr Whipp, was in such as poor state as to lead to the conclusion that Mr Whipp failed to take reasonable care of it. Unfortunately for Lakefront, there is little substantive evidence as to the state of the vehicle when Mr Whipp returned it to Lakefront.

57.I accept that Mr Tomasic did an inspection of the vehicle upon its return in 2012, but Mr Tomasic is an electrician, not a mechanic. His oral opinion is, necessarily, subjective. The only other evidence as to the state of the van upon its return is the undated quote from ACT Autobody Works, listing extensive damage and quoting the claimed $11,827.01 to repair that damage. Even accepting that the invoice contemporaneous, which is problematic in light of the fact it is undated, the quote is of minimal weight. The individual who prepared the quote is not named on it, did not give a witness statement, and was not called to give evidence. That individual’s instructions are not clear. The quote appears to have been prepared for a loss assessor, rather than with an actual intention of repairing the vehicle. It deals with extensive cosmetic damage, and looks to be a quote to return the vehicle to a near-new condition, rather than a condition that would be expected to be typical of a 12-year old vehicle, used for commercial purposes. The quote for repairs in any case exceeds what Mr Tominac paid for the van.

58.The quote also does not deal what proportion of the damage could reasonably be said to be caused by inappropriate use of the vehicle. The van was used by a series of electricians working on building sites – tools were loaded and unloaded. It was not a chauffeur vehicle. Some deterioration over time is to be expected, perhaps even some considerable deterioration, due to ordinary wear and tear.

59.In summary, therefore, Lakefront is not able to establish what part of the damage to the vehicle, if any, was caused by Mr Whipp. It is also unable to establish what part of that damage is the cause of negligent or unreasonable use of the vehicle, and what parts are ordinary wear and tear.

60.The difficulties Lakefront has experienced in this matter may have been avoided with some basic documentation or record-keeping – Lakefront need not have gone to great lengths, but should have asked those given the use of a vehicle to at least a sign a document setting out the condition of the vehicle at the time of handover, the terms upon which it is being loaned – including liability for damage caused through misuse – and perhaps attaching some photographs. That none of these basic steps were done in this case made it extremely difficult for Lakefront to make out its case, and it has not done so.  

61.The same reasoning also undermines Lakefront’ claim in negligence. I accept that it is likely that Mr Whipp owed a duty to whoever was the owner of the van to take reasonable skill and care when using the van. However, while I am satisfied that the van in now in a poor state of repair, Lakefront has not satisfied me that the damage to the van was caused by Mr Whipp’s lack or reasonable skill and care.

62.Accordingly, Lakefront’s claim for damages in relation to the van is dismissed.

The mobile phone

63.It was not in contest that Mr Whipp was issued with a mobile phone for work purposes, shortly after he commenced employment. While I accept that it was a term of Mr Whipp’s employment that he return to phone upon the cessation of his employment, there is no evidence that the phone belonged to Lakefront, as opposed to Allstar. There is also no evidence of any form of transfer of property in the phone from Allstar to Lakefront. Therefore, notwithstanding that the Tribunal is satisfied that Mr Whipp is liable to an entity for the cost of the lost mobile phone, the Tribunal is not satisfied that entity is Lakefront. Accordingly, I decline to order that Mr Whipp repay an amount representing the value of the phone to Lakefront.

Recovery of the lighting invoice

64.On any view of the evidence, Mr Whipp is obliged to repay to the private expenses he incurred on the company account.

65.I accept Mr Tominac’s evidence that this account belongs to Lakefront. This assertion was, in any case, not challenged by Mr Whipp.

66.Mr Whipp argued that Mr Tominac waived Lakefront’s right to recover the monies by refusing to accept the preferred repayment on the day it was offered (ie. the day Mr Whipp’s employment was terminated). I do not accept this. Certainly, Mr Tominac was extraordinarily angry, initially refused the proffered repayment on the basis that he was going to report the matter to the police, but this alone does not amount to a waiver. Nor do these circumstances amount to accord and satisfaction, as Mr Whipp offered no consideration to Mr Tominac in exchange for his agreement not to enforce the debt. Mr Whipp has not demonstrated any reliance that could give rise to an estoppel (and even if he had, there may be an issue of ‘clean hands’).

67.Accordingly, I order that Mr Whipp pay to Lakefront the sum of $199.48. I decline to award interest, on the basis that to do so would not be reasonable given Lakefront did not seek recovery of the debt in a prompt manner.

The application fee

68.Lakefront, having been partially successful in this application, is also entitled to half the application fee of $140, being $70.

69.

I note that, notwithstanding Mr Whipp withdrew his application, it is evident that the Tribunal did not, in any case, have jurisdiction to hear it.  Accordingly,

Mr Whipp may wish to approach the Register and request that she consider refunding the application fee he paid.

Orders

1.The respondent/counterclaimant is amended to ASE Lakefront Pty Ltd.

2.The application is withdrawn.

3.The applicant is to pay the respondent/counterclaimant:

(a)     $199.48 for lights purchased on its account;

(b)     $70 for the application fee.

………………………………..

Senior Member H Robinson

HEARING DETAILS

FILE NUMBER:	XD 379/2016
PARTIES, APPLICANT:	Nathan Whipp
PARTIES, RESPONDENT:	ASE Lakefront Pty Ltd
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	Electrical Trades Union of NSW
SOLICITORS FOR RESPONDENT	Kami Saeedi Law
TRIBUNAL MEMBERS:	Senior Member Robinson
DATES OF HEARING:	26 October 2016, 13 December 2016