What was the agreement between the parties?
23The plaintiff's case was that the agreement with the defendant was their usual agreement, being the Terms of Trade, a credit agreement, quotation and the terms and conditions printed on the back page of each consignment note. Both parties were unable to produce the original written documentation signed at the time of their initial dealings in 2007. The plaintiff relies on their standard documents and usual business practice to evidence the terms of the agreement. The plaintiff also relies on the terms and conditions printed on each consignment note for each delivery undertaken for the defendant. The plaintiff's case is that the terms exclude the liability claimed by the defendant. The defendant denies that they were issued the usual written agreement, and denies that there is any agreement as to Terms of Trade. As such the defendant states that no exclusion clause applies to exclude liability.
24The plaintiff states that services were provided pursuant to a contract, the terms of which were embodied in the usual Terms of Trade and set out in the consignment notes for each delivery. Mr Michael Murray, who was previously the General Manager Finance and Administration, for the plaintiff, gave evidence about the usual standard procedure when a new client account was opened. He agreed that he had no specific recollection of the defendant, however gave clear evidence of the standard procedure invariably used by the plaintiff. That standard procedure included a consultation between a sales representative and prospective clients, preparation of a quotation which included (1) the plaintiff's rate cards for applicable delivery charges; (2) standard terms of quotation and terms of trade (a copy of this document is p 16 of exhibit 1 - this exhibit will be referred to as exhibit MM1 in this judgment); (3) an application for credit (a copy is at pp 17 to 25 of MM1); and (4) documents were attached to the application of the credit including the standard terms and condition of carriage (copy at p 19 of MM1), freight safe warranty registration form (pp 20 to 24 MM1), credit card payment authority (p 25 MM1).
25Mr Murray states that upon acceptance of the quotation and the terms of trade the client would execute the quotation and return it to the sales representative. The sales representative would request the client complete and return the application for credit including the executed Terms and Condition of Carriage, and other documents. Upon receipt of the executed documents the accounts department would conduct a credit check and a trade reference check (calling at least 3 referees). If the checks were positive a credit account would be set up in the debtors ledger allowing invoicing of the client to begin. The rates, as set out in the quotation to the client, would be imputed to the billing system to allow consignment notes to be rated and invoices to be generated. Under cross-examination Mr Murray stated that it was not possible to issue invoices to a client unless the credit application had been processed, accepted and a credit account set up.
26Mr Murray stated that the consignment note was a four page carbon document, and a page was issued to each party to the consignment at the relevant time (e.g. the sender, etc). The consignment note included details such as the signature of the sender and the driver, and the date and signature of the receiver. Mr Murray's evidence was supported by the documents annexed to his affidavit, which included consignment notes containing these details (sender signature and/or receiver signature, etc). The first page of the consignment note was titled "invoice" and would be provided to the consignor upon collection of the freight. This page would be executed by the driver and the consignor. The second page of the consignment note would be executed by the receiver on delivery and was titled "POD" (Proof of Delivery); this page was retained by the plaintiff. The third page was a copy of the second page that was titled "Receivers" and was retained by the receiver. The fourth page was another copy of the second page; it was titled "Sender's" and was retained by the sender of the freight. Printed on the reverse side of each of the four pages of the consignment note were the plaintiff's terms and condition of contract - a copy of this is at page 30 of exhibit MM1.
27Whilst the evidence of Mr Murray was very clear as to the usual practice, he was unable to give any evidence of the initial agreement with the plaintiff in 2007.
28Ms Zeng gave evidence for the defendant. Ms Zeng is the wife of the sole director and shareholder, Mr Li. The key areas of responsibility of Ms Zeng were financial matters for the defendant including payments, receipts, and choice of service providers. The general manager of operations would report to either Ms Zeng or Mr Li. To the best of her recollection the defendant started to use the services of the plaintiff from about 2007 until the plaintiff was placed in liquidation in early May 2012. Ms Zeng arranged payment of the plaintiff's invoices. A representative of the plaintiff, named Michael (not Michael Murray), met with her on three or four occasions. She maintains that during a discussion she stressed the importance of goods being delivered on time (paragraph 11 of affidavit) and that Michael stated that the plaintiff could be trusted to deliver the goods on time. She also states that she indicated she would pay the invoices 28 days after delivery and does not recall any agreement for payment upon collection. Ms Zeng states to the best of her recollection, knowledge and belief, she does not recall ever seeing the document entitled "Terms and Conditions of Carriage" nor did she sign such a document.
29Ms Zeng states that the practice was that the plaintiff would place a trailer at the defendant's premises, and sometimes an extra trailer would also be brought; the defendant would place into the trailer the goods bearing a delivery address (a consignment note); the plaintiff would remove the laden trailer from the premises on a daily basis; the consignment note for the job would be printed from computer software provided by the plaintiff. The defendant would print a consignment manifest at the end of the day showing all jobs collected by the plaintiff on the day and they would ask the driver of the plaintiff to sign that daily consignment manifest as a record for the defendant of the collection of the trailer by the plaintiff.
30Considerable detail was given, in the proceedings, by both Mr Murray and Ms Zeng, about the documents executed by the parties which formed the agreement - both witnesses were cross-examined about this issue. The plaintiff's evidence was that the defendant would have executed the standard documents which are annexed to the affidavit of Mr Murray (detailed above). Page 16 of MM1 of is a document on the plaintiff's letterhead which states at the top of the page "Please complete and return to [the plaintiff]". The document is entitled "Terms Of Trade" and states that on return of the application for credit form, all clients will be credit referenced, prior to acceptance of trade on account. The document states that there is strict 7 day payment from date of invoice, and that a copy of a credit card payment form is attached. It is clearly stated that the plaintiff "Is not a common carrier, for conditions of cartage refer to the reverse side of our consignment note". The document states that "we accept the above rates for cartage and have read and accept the conditions of quotation. Terms of trade and transport as outlined above and on the rear of the quotation form, which will form the basis of the contract on any other consignment note used".
31Page 19 of exhibit MM1 is the attached terms and conditions of carriage, clause 1 of which states that the plaintiff is not a common carrier and accepts no liability as such. Clause 3 exempts the plaintiff from liability for non-delivery or late delivery whether the plaintiff is at fault or not. At clause 17 it states in capitalised text that insurance is a responsibility of the consignor.
32The terms and condition of contract are on the back of every page of the consignment note (a copy is at p 30 of MM1). Clause 6 of the consignment note 'terms and condition of contract' contains a similar exclusion clause to that contained in the Terms and Condition of Carriage (p 19 MM1).
33Ms Zeng states that the defendant, after delivery, would request a Proof of Delivery (POD) from the plaintiff if required. Invoices were issued by the plaintiff on a weekly basis, and sometimes by monthly statement, and Ms Zeng would arrange payment after 28 days of receiving the month end statement. She would pay March invoices at the end of April for example.
34Mr Murray gave evidence that the system used by the plaintiff was that where payment was made after the issuing of invoices, then a credit agreement was required. The application for credit would have to be signed by the applicant and credit checks were undertaken before a credit account was created; this was always done. The staff in the accounts department were unable to raise an invoice unless a credit account had already been created. The fact that invoices were raised and sent to the defendant meant that there was a credit account created and to create this credit account there was a need for a whole suite of documents (the evidence in relation to this is set out above). Mr Murray agreed that he had been unable to find the written documents signed by the defendant. He had no personal knowledge of how goods were loaded at the defendant's premises. Mr Murray also it stated that for an invoice to be sent to the defendant, the consignment note would have to be completed. Where a consignment note was signed by a receiver it generally meant the goods were received.
35Under cross-examination Ms Zeng agreed that the first contact with the plaintiff was with a sales representative (a person called Michael) and agreed that she was then provided with a quotation. It was put that the quotation included the standard Terms of Trade and she stated "he mentions this but I did not read it at that time". She said she received an offer and an application form. It was put to her that page 16 of exhibit MM1 formed part of the quotation given by the plaintiff and she responded "yes I agree with that". It was put that Mr Murray had stated that the application for credit formed part of the quotation, and Ms Zeng and said "yes I agree". She was then asked to look at page 17 through to page 25 of exhibit MM1 and did not agree that she completed those pages. She said it was a different application form which she completed. When it was put to her that she had previously stated that she had only received one page, and it was page 16, she stated that the application she received was similar to the page 16 but not exactly the same. When asked whether she still had the original papers she could not recall.
36The annexures to Mr Murray's affidavit (detailed above) contain documents relied upon as being the contract between the parties, and include at page 16 of MM1 "Terms of Trade". This was the one page which Ms Zeng initially stated in her evidence she had been given.
37The plaintiff states that the provisions of the contract, which included all the documents that the plaintiff said would have been signed by the defendant, exempt the plaintiff from any liability for late delivery or non-delivery of the defendant's goods. The defendant states that these terms were never agreed to or made known to the defendant.
38In evidence in the proceedings were a number POD documents including documents signed by a receiver indicating receipt of goods. The proof of delivery documents in evidence also included documents signed by the sender. When it was put to Ms Zeng that this would have been signed by someone on behalf of the defendant she stated that it she did not think it was the signature of anyone in the company. I find this answer implausible - it would be normal practice for a sender of goods to sign as sender and there would be no reason for anyone else to do so. Ms Zeng in her evidence appeared to be unwilling to concede any point which she thought might be adverse to the interests of the defendant in the proceedings. At one point she readily said that she had received page 16 of MM1 which contained the terms of trade, but at the same time refused to accept that she had ever read the terms of trade. She stated when shown pages 17 to 25 of exhibit MM1 that she did not complete those pages but completed a different application and that she did not receive the terms of trade. She was adamant in her evidence that she did not receive certain documents, but at the same time could not recall what documents were received, nor could she produce any document that she received from the plaintiff, and said recollection was difficult as it was some time ago, 2007. However she also gave evidence of verbal conversations which she stated she had with the salesperson, Michael, at the time.
39I found it implausible, that over a period of several years of high-volume dealings between the plaintiff and the defendant, (Ms Zeng gave evidence of one or two delivery trucks per day over what was a five-year period), the terms and condition of trade on the consignment notes (including PODs which Ms Zeng stated she requested from the plaintiff from time to time) would not be made known to the defendant.
40Ms Zeng's evidence as to the agreement was inconsistent. She said there was an agreement but it wasn't "this agreement". I found her evidence as to the original agreement to be unreliable, given the inconsistencies in her account and lack of clarity and clear recall. The evidence of Mr Murray impressed me as reliable - he readily conceded points against the plaintiff's interest (such as that he could not say that he witnessed what goods were delivered; he could not comment on the defendant's evidence as to the usual practice of the defendant loading the trailer for the plaintiff to collect; and he readily conceded that he had no knowledge of the original agreement with the defendant). However he gave clear evidence about the usual business practice. His evidence that an invoice could not be generated if there was no credit account was plausible and was consistent with extrinsic evidence such as the documentary evidence indicating that on receipt of a credit agreement a credit account would be generated - page 16 of MM1. Mr Murray's evidence as to usual practice was supported by the POD documents which showed goods were delivered and his evidence that the terms of trade were contained on these documents.
41The defendant's witness, Ms Zeng, gave evidence that she did request copies of these POD documents from time to time which would have also contained the terms of the contract. I do not accept Ms Zeng's evidence on behalf at the defendant that she did not know of the terms and condition of trade, and that the defendant did not know the terms. I consider Ms Zeng's evidence in this regard is against the weight of the evidence, and given the inconsistencies in her own evidence, and implausibility of some of that evidence, then I was unable to accept her account. Therefore Ms Zeng's account is unable to dispute the plaintiff's evidence. The plaintiff's evidence relies on usual business practice, and evidence of that usual business practice was given by a witness who gave clear and consistent evidence, which was consistent with documentary evidence.
42Whilst the original written documents executed by the defendant and the plaintiff are not in evidence it is clear that an agreement was made in 2007 on the evidence of both parties. For the reasons detailed I accept that the terms of the agreement were as detailed by Mr Murray in this evidence and I find that the exclusion clauses referred to above were terms of the agreement between the parties. The exclusion clauses were made known to the defendant in the original documentation (as detailed above) and also in the consignment notes for each particular delivery. The terms of the agreement are clear and I find that the terms exclude the plaintiff from liability for any late delivery or non-delivery of the defendant's goods.
43I observe that the plaintiff referred me to authorities which supported that evidence of usual business practice was admissible, to support a conclusion that the usual business practice was followed - there being a probability that the general course would be followed in the particular case: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 (Court of Appeal, majority judgment of Asprey and Mason JJA). The case of Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 was also relied upon. Whilst that case focussed on tendency evidence and provisions of the Evidence Act 1995, amongst other issues, the Court also observed, at [67], that evidence of conduct may be admissible independently of tendency evidence, as it would establish the existence of a system "the existence of a system, in the absence of evidence to the contrary, readily supports the inference that it was implemented in the particular case". These cases support the admission of the evidence of the system in place in the plaintiff's business, given by Mr Murray, and an inference that the system was implemented in the current case. The inference could be displaced by direct evidence that it was not implemented in the current case. For reasons detailed above I did not accept Ms Zeng's evidence on behalf of the defendant that the plaintiff's usual system was not followed in this case, and I do accept that the system outlined by Mr Murray was, on the evidence, followed in dealings with the defendant.