Bibin v Mainfreight International Pty Ltd

The evidence

1. The Applicant attended the hearing of the Application in person and gave oral evidence under affirmation. He was assisted by a Russian interpreter. He relied upon the contents of his Application and a bundle of documents that had been submitted in accordance with the Tribunal's directions. These documents were a copy of the Bill of Lading for the shipment of the building materials dated 11 September 2015; a copy of the invoice relating to the purchase of the building materials dated 13 August 2015; a transaction receipt evidencing payment of that invoice dated 30 September 2015; invoices and statements for fees and charges levied by the Respondent on the Applicant in relation to the quarantine and customs clearance of the building materials, payment of duties and taxes, payment of professional fees, disposal of damaged building materials and storage charges for the building materials; photographs of the building materials loaded into a shipping container prior to their despatch from China; photographs of the building materials as they were delivered to Respondent's premises for unloading; copies of email exchanges been the Applicant and representatives of the respondent across the period 6 to 14 October 2015; photographs of the damaged building materials after their unloading at the Respondent's warehouse; a copy of an invoice and related documents which set out the cost of purchase and shipping of replacement building materials to Australia; copies of eBay web pages that quote the selling price of comparable products to some of the building materials in issue; a copy of the Residential Tenancy Agreement entered into by the applicant in respect of his alternative accommodation while building works were being undertaken; a copy of a bank statement that sets out the interest the Applicant has paid on loan he took out to pay for his building works; invoices for legal costs incurred by the Applicant in obtaining legal advice about his claim; a copy of the insurance policy that related to the transport of the building material from China together with email advice dated 10 March 2016 from the manufacturer/exporter of the building materials that the damage to the building materials is not covered by that policy; and copies of a damages claim made directly on the Respondent dated 10 October 2015 and replies to this dated 19 and 25 October 2015.
2. Mr Rowan Cooke, NSW Branch Manager of Mainfreight International Pty Ltd attended the hearing on behalf of the Respondent and gave oral evidence under affirmation. With him was Ms Laurel Hertel, a representative of the Respondent's insurer. Ms Hertel was present as advisor to Mr Cooke. She did not play a direct part in the hearing. The Respondent submitted two folders of evidence in response to the Tribunal's directions. These documents are a copy of an email with photographs attached from the manufacturer/exporter of the building materials to Mr Bibin dated 7 September 2015; a copy of an Australian Quarantine Inspection Service direction for the shipping container in which the building materials were transported dated 8 October 2015; email notification from the Respondent to the Applicant of a delay in the unpacking of the building materials dated 9 October 2015; a copy of an Australian Quarantine Inspection Service Declaration that the shipping container containing the goods was finalised and released dated 13 October 2015; a copy of a WSI International Pty Ltd outturn report dated 17 October 2015 and an associated email; a copy of an email between the Applicant and the Respondent which attaches a sign regarding the proper handling of certain of the building materials dated 10 December 2015; a copy of the agreement by which the Applicant appointed the Respondent to act for him in relation to the quarantine and customs clearance, unloading and delivery of the building materials to him, dated 30 September 2015; a quotation for the cost of disposal of the building materials dated 23 October 2015; a copy of an email from the Applicant's solicitor to the Respondent authorising the disposal of certain of the building materials; a copy of the Respondent's Service Conditions; a copy of a statement of the Applicant's account dated 26 February 2016; and, two photographs of some of the building materials taken prior to their disposal.

Amendment of claim

1. At the first listing of the Application, the Applicant did not seek, and he was not granted, leave to amend his claim, which was at that time a claim for compensation in the amount of $9,855.63 and a claim for relief from payment in the amount of $15,333.03. The Applicant also originally sought an order from the Tribunal that would require the Respondent to deliver certain undamaged building materials it retained to him at an estimated cost of $397.67.
2. However, the Applicant filed and served what amounts to a substantially amended claim with his evidence. The claim is now purports to be constituted by the following: 1. a claim for compensation for the cost of port charges incurred in China and paid by the Applicant in relation to the shipping of the building materials to Australia in the amount of $776.60; 2. a claim for compensation for the costs of quarantine and customs clearance charges and related duties and taxes incurred and paid by the Applicant in relation to the building materials in the amount of $1,515.23; 3. a claim for compensation for the costs of replacing the damaged building materials in the amount of $8,366.28; 4. a claim for compensation for rental costs incurred by the Applicant during the period he was undertaking the home building works for which the building materials were obtained in the amount of $16,200.00 ; 5. a claim for compensation for interest paid on the loan taken out by the Applicant to purchase the building materials and undertake the building works in the amount of $3,500.00; and 6. legal costs incurred by the Applicant in obtaining advice about his claim in the amount of $4,377.00.
3. Although it was not itemised in the purported amended claim, it emerged in the hearing that the Applicant also continued to press for an Order that would relieve him from payment of disposal and storage fees and other charges still claimed by the Respondent in the amount of approximately $15,333.00 as at the date of the hearing. He also continued to seek an Order from the Tribunal that would require the Respondent to deliver certain undamaged building materials it retained to him at an approximate cost of $400.00.
4. It thus emerged that the total monetary value of the Applicant's amended claim was in the order of $65,000.00.
5. The Tribunal's jurisdiction to deal with a claim that has a total value in excess of the prescribed amount of its order making power is dealt with following. Leaving that issue aside, the Tribunal had to determine if it would permit the Applicant to pursue the substantially amended claim.
6. In this respect it was clear that the Respondent had been placed on notice as to the amended claim when the Applicant had filed and served his evidence. The Respondent had filed and served evidence to meet the amended claim and Mr Cooke was in a position to make submissions in relation to the amended claim. No issue of procedural fairness to the Respondent arose in these circumstances.
7. Having regard to this background and to the guiding principle governing the Tribunal's practice and procedure set out in section 36 of the Civil and Administrative Tribunal Act 2013, which is to facilitate the just, quick and cheap resolution of the real issues in the dispute, the Tribunal determined it would grant leave for the Applicant to pursue his amended claim. This course offered an opportunity to bring the dispute between the parties to finality with the minimum possible delay and expense to the parties and to the public.

Jurisdiction of the Tribunal

1. As already stated, prior to the hearing, the Respondent had notified the Tribunal that it objected to the Tribunal entertaining the Application on the basis that it lacked jurisdiction to do so.
2. The Tribunal's jurisdiction in relation to consumer claims is established and defined by several provisions in Part 6A, Divisions 1, 2 and 3 of the FT Act. It is a broad jurisdiction. Pursuant to section 79J of the FT Act, the Tribunal has jurisdiction to hear and determine a consumer claim the subject of an application under Part 6, Division 2 of the FT Act except as otherwise provided in that Division.
3. Section 79I provides that any consumer may apply to the Tribunal for determination of a consumer claim. The meaning of the word "consumer" is defined in section 79D of the FT Act. It means any of an enumerated list of persons or bodies to whom or to which a supplier has supplied, or agreed to supply, goods or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services, including relevantly to this case, a natural person. Pursuant to section 79H of the FT Act a person or body claiming to be a consumer is presumed to be a consumer unless the contrary is proved and the burden of proving the contrary falls on the party who seeks to establish that fact. A "consumer claim" is defined in section 79E of the FT Act in the following terms: (1) For the purposes of this Part, a "consumer claim" means a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services: (a) the payment of a specified sum of money, (b) the supply of specified services, (c) relief from payment of a specified sum of money, (d) the delivery, return or replacement of specified goods or goods of a specified description. (2) For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.
4. The meaning of the word "services" is defined in section 79F of the FT Act. Relevantly to this case it includes (pursuant to subsection 1(a)), the performance of work (including work of a professional nature), whether with or without the supply of goods. The meaning of the word "supply" in relation to the supply of services is defined in section 79G(2) of the FT Act. It means: (2) For the purposes of this Part, a reference to the supply of services includes a reference to any of the following: (a) providing, granting or rendering services for valuable consideration, (b) agreeing to supply services, (c) supplying services together with goods.
5. The meaning of the word "supplier" is defined in section 79D of the FT Act. It means a person who, in the course of carrying on (or purporting to carry on) a business, provides goods or services.
6. The explicit statutory limits on the Tribunal's consumer claims jurisdiction are found in sections 79K, 79L and 79S of the FT Act. Pursuant to section 79K of the FT Act the Tribunal has jurisdiction to hear and determine a consumer claim only if, relevantly to this case, the services to which the claim relates were supplied in New South Wales (or it was contemplated that they would be), or a contract or other agreement to which the claim relates was made in New South Wales. Pursuant to section 79L of the FT Act the Tribunal does not have jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim was lodged, or if the goods or services to which the claim relates were supplied to the claimant more than 10 years before the date on which the claim is lodged.
7. Section 79S of the FT Act specifies a monetary limit on the Tribunal's jurisdiction to make orders. It provides: 79S Monetary limit on Tribunal's jurisdiction to make orders (1) The Tribunal has no jurisdiction to make, in respect of a particular consumer claim, an order or orders in favour of the claimant (or, where there are two or more claimants, in favour of those claimants) if the relevant total under or because of the order or orders would exceed the prescribed amount. (2) For the purposes of subsection (1), the "relevant total" is the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the work to be performed, or the services to be supplied, and (c) the amount or amounts (if any) of money to be declared not to be due or owing, and (d) the value or values of goods (if any) to be delivered or replaced. (3) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders referred to in section 79O if the amount or the total of the amounts (if any) to be paid under or because of the order or orders would exceed the prescribed amount. (4) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders under section 79P if the relevant total under or because of the order or orders would exceed the prescribed amount. (5) For the purposes of subsection (4), the "relevant total" is the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the services to be supplied, and (c) the value or values of goods (if any) to be delivered. (6) Subsections (1), (3) and (4) do not apply in relation to a consumer claim: (a) arising from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988, or (b) relating to commission fees charged by agents licensed under the Property, Stock and Business Agents Act 2002 . (7) In this section: "new motor vehicle" means a motor vehicle that is not a second-hand motor vehicle within the meaning of the Motor Dealers and Repairers Act 2013 . "prescribed amount" means $40,000 or such other amount as is prescribed for the purposes of this section.
8. The Respondent has two objections to the Tribunal exercising jurisdiction to hear and determine the Applicant's claim.
9. The first of those objections is that the Applicant seeks Orders that within the meaning of section 79S of the FT Act have a "relevant total" value that is significantly in excess of the "prescribed amount" up to which the Tribunal may make such Orders, which is $40,000.00.
10. This objection is misconceived. Section 79S of the FT Act restricts the relevant total value of Orders that may be made by the Tribunal. The Tribunal is not prevented from exercising jurisdiction in relation to a claim where the Applicant asserts an entitlement to an amount that is in excess of the prescribed amount. As Master Malpass stated in Poat v Consumer Trader and Tenancy Tribunal [2004] NSWSC 947 at [29]: a distinction should be drawn between lack of jurisdiction to entertain a claim and the monetary limit of the power had by the Tribunal to make an order. The Tribunal may entertain a claim in an amount that exceeds the power that it has to make an order, but it can order no more than the monetary limit in that power… It is open to an applicant to waive any excess.
11. Similarly, in Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited [2005] NSWCS 485 Master Malpass stated at [15] and [16]: the imposition of such a jurisdictional limitation does not take away jurisdiction altogether in respect of a claim made in a sum in excess of the [prescribed amount]. The Tribunal has jurisdiction to make an order so long as the quantum of the order does not exceed the prescribed amount …. A party who brings a proceeding in the Tribunal which is subject to such a jurisdictional limitation can only obtain an order in respect of a sum that does not exceed [the prescribed amount].
12. The Appeal Panel of this Tribunal has applied this distinction and the principle upon which it rests in relation to the Tribunal's monetary jurisdiction under the Retail Leases Act 1994 in IK Chemists Pty v CHOF4 Artarmon Pty Ltd [2015] NSWCATAP 144 and under the Agricultural Leases Act 1990 in Gartrell v Roth [2015] NSWCATAP 182.
13. The critical concern that arises in relation to this issue is ultimately one of procedural fairness to the Applicant as a person who is not legally represented in the proceedings. The Applicant must be on notice that he is not entitled to Orders that would have a total value in excess of the prescribed $40,000.00 limit on the Tribunal's order making power. He must be aware of his option of having his application transferred to a Court with a greater monetary jurisdiction for hearing and determination. Provided the Applicant is fully alert to these issues, nothing prevents him from waiving any entitlement he is able to establish that is in excess of the prescribed limit on the Tribunal's order making power.
14. The Tribunal put the Applicant on notice as to these matters. In response, the Applicant told the Tribunal that he wanted the Application heard and determined by the Tribunal. He said he did not want the Application transferred to a Court. He stated that he waived any entitlement to relief in any amount that exceeded the prescribed amount of $40,000.00.
15. The second objection to the Tribunal exercising jurisdiction asserted by the Respondent was to the effect that the claim was founded in Commonwealth admiralty jurisdiction which this Tribunal is not vested with. This was because the claim, in the Respondent's characterisation of it, "concerns issues regarding international shipping."
16. 28 The Commonwealth's admiralty jurisdiction is codified in the Admiralty Act 1988 (cth). Section 5 sets out the scope of application of that Act: Application (1) Subject to the succeeding provisions of this section, this Act applies in relation to: (a) all ships, irrespective of the places of residence or domicile of their owners; and (b) all maritime claims, wherever arising. (2) This Act does not apply in relation to a proceeding commenced before the commencement of this Act (3) This Act does not apply in relation to a cause of action that arose: (a) in respect of an inland waterways vessel; or (b) in respect of the use or intended use of a ship on inland waters. (4) Paragraph (3)(b) does not have effect in relation to a cause of action if, at the time when the cause of action arose, the ship concerned was a foreign ships.
17. A "maritime claim" is defined in section 4 of the Act, relevantly as follows: (1) A reference in this Act to a maritime claim is a reference to a proprietary maritime claim or a general maritime claim. (2) A reference in this Act to a proprietary maritime claim is a reference to: (a) a claim relating to: (i) possession of a ship; (ii) title to, or ownership of, a ship or a share in a ship; (iii) a mortgage of a ship or of a share in a ship; or (iv) a mortgage of a ship's freight; (b) a claim between co-owners of a ship relating to the possession, ownership, operation or earnings of the ship; (c) a claim for the satisfaction or enforcement of a judgment given by a court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or (d) a claim for interest in respect of a claim referred to in paragraph (a), (b) or (c). (3) A reference in this Act to a general maritime claim is a reference to: (a) a claim for damage done by a ship (whether by collision or otherwise); or (b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or (ba) a claim under: (i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 ); or (ii) a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or (c) a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or (d) a claim (including a claim for loss of life or personal injury) arising out of an act or omission of: (i) the owner or charterer of a ship; (ii) a person in possession or control of a ship; or (iii) a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable; being an act or omission in the navigation or management of the ship, including an act or omission in connection with: (iv) the loading of goods on to, or the unloading of goods from, the ship; (v) the embarkation of persons on to, or the disembarkation of persons from, the ship; and (vi) the carriage of goods or persons on the ship; or (e) a claim for loss of, or damage to, goods carried by a ship; or (f) a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or (g) a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or (h) a claim in respect of general average; or (j) a claim in respect of towage of a ship; or (k) a claim in respect of pilotage of a ship; or (m) a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or (n) a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or (o) a claim in respect of the alteration, repair or equipping of a ship; or (p) a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or (q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981 , being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or (r) a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or (s) a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or (t) a claim by a master, or a member of the crew, of a ship for: (i) wages; or (ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or (u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974 ) made in respect of a proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or (w) a claim for interest in respect of a claim referred to in one of the preceding paragraphs.
18. It will be observed from sections 4 and 5 of the Admiralty Act 1988 that the Commonwealth's admiralty jurisdiction is limited to causes of action that have a relevant connection to shipping other than in domestic waterways. In this case the Applicant's claim on its face is not connected with a ship. It is a claim arising from the unloading of a shipping container at Port Botany and the delivery of its contents to an address on the Central Coast of NSW by a domestic service company. The Respondent is not in any way connected with a ship.
19. 31 Mr Cooke submitted that it was open to the Applicant to join the shipping company that carried the shipping container as a Respondent to the Application on the basis that the damage to the building materials could have occurred on the high seas or in the uploading and unloading of the building materials from the ship. The Tribunal accepts that had the Applicant sought to pursue a cause of action against the shipping company as a co-respondent it would not have jurisdiction to deal with the claim against any respondent.
20. 32 Again, in the circumstances, procedural fairness required that the Applicant be put on notice that it was potentially the case that the evidence would establish that it was not the Respondent that was responsible for the alleged damage to the building materials, but some event for which the shipping company may be liable. In that eventuation, unless the shipping company was joined as a Respondent to the cause of action, which could not occur in this jurisdiction, the Applicant would have no avenue for obtaining relief.
21. 33 In response, the Applicant informed the Tribunal that he understood this risk but was satisfied that his claim was correctly brought against the Respondent in these proceedings. He advised that he did not wish to pursue any cause of action against the shipping company.
22. 34 On this basis the Tribunal was satisfied that the Applicant's claim did not come within the Commonwealth's admiralty jurisdiction. In this respect neither the Applicant's cause of action, nor any defence to that application by the Respondent, engaged Commonwealth jurisdiction. The circumstances of this case are thus to be distinguished from those that prevailed in Qantas Airways Limited v Lustig [2015] FCA 253.
23. 35 The Tribunal was otherwise satisfied that it had jurisdiction to deal with the claim. The applicant is a consumer and the claim is a consumer claim as defined. The Respondent is a supplier of services to the Applicant as both those terms are defined. The claim arises from a contract made in NSW and relates to services that were provided in NSW. The claim has been made to the Tribunal within the time period allowed.

Material facts

1. 36 The material facts to emerge from the evidence are as follows: 1. at all material times for the Applicant's claim he was engaged in the re/construction of his family home. This re/construction was funded by a loan from a financial institution. During the period of the re/construction the Applicant had relocated from his family and was living in private rental accommodation for which he paid $450.00 a week rent; 2. on or about 13 August 2015 the Applicant purchased building materials for the re/construction from Shijiazhuang Zhouming Trading Co Ltd, a manufacturer and exporter based in Hebei, China (the exporter). Those building materials were colour coated sandwich panels and roof sheets, screws and artificial culture stone. This purchase was made in United States Dollars in the amount of $US6,592.00; 3. on or about 6 September 2015 the exporter packed the building materials into a single shipping container ready for export. The next day a representative of the exporter emailed the Applicant to confirm this, stating as follows: Hi, Alex, Yesterday we load all the products to the container in our factory, please check the attached picture. It will ship on 10th, shipping time is about 26 days. … Here I wants to express my deep sorry to you because of below things. 1. There are 2 blades up and down in the cutting. Because thickness and density is thick and weight, the blade can't cut the panel at same line. So its not very tidy in cross section. After covering edge covers, it will conceal inside. 2. Because its very long and weight, there will be some damage when loading and unloading. I'm very very very sorry to let them happen. Even I'm afraid to send you email. But I have to. After you receive the panel, its better that if you think these are not big problems and use panel reluctantly. If you think some are not good, we'd like to send extra panel to you again, you just need to pay shipping charge. Its all my fault and I say sorry again. We will try to accept you if you have any requirement. 1. attached to the exporters email of 6 September 2015 are a number of photographs apparently taken after the building materials were loaded into the shipping container prior to being despatched. One of these photographs depicts the colour-coated sandwich panels. The ends of the sandwich panels are roughly cut and untidy and appearance. They appear roughly stacked without any supporting trestles. One stack of sandwich panels rests on what appears to by Styrofoam blocks, the other stack sits flat on the base of the shipping container. The insulating materials in the interior of the sandwich panels appear soiled and wet. Another two of the photographs depict the crates and boxes which contained the screws and artificial culture stone. The crates and boxes are clearly wet, and the some boxes are in a state of collapse. 2. the building materials left China in a shipping container on 11 September 2015. On or about 29 September 2015 the Applicant was notified by the shipping company that the shipping container had arrived in Australia. On or about 30 September 2015 the Applicant engaged the Respondent to receive the shipping container at the dock, arrange for its clearance through Australian customs, unpack the container at its warehouse at the Port, load the building materials onto a truck and deliver them to him at his address in Saratoga. The Applicant completed and returned to the Respondent an authority for it to act as his customs broker for this purpose. That agreement incorporates terms and conditions upon which the Respondent's services are provided. 3. on or about 8 October 2015 the building materials were first cleared for release by Australian Customs. However, for reasons which are not entirely clear a quarantine direction was later issued which delayed release of the building materials until 13 October 2015; 4. on 8 October 2015 a representative of the Respondent notified the Applicant by email that the building materials had been released by customs and that "everything is going well container is being unpacked and I am just trying to locate a truck to deliver to you. Delivery is looking to be Monday and I will send through your invoice shortly." The contents of this email were incorrect. The building materials had not yet cleared customs. 5. on 10 October the Respondent issued the Applicant with an invoice in the amount of $1,515.29 for quarantine fees and government duties and taxes related to the import of the building materials. The Applicant paid this invoice. 6. on or about 13 October 2015 the Respondent collected the shipping container from the dock and removed it to its warehouse for unpacking. On 14 October 2015 a representative of the Respondent notified the Applicant by email that the building materials were being unpacked and that there appeared to be substantial damage to some components. The representative forwarded to the Applicant a series of photographs of the damage. These photographs show colour-coated roof-sheets and sandwich boards wet, crushed, bent, and broken at the ends. The screws and artificial stone were noted to be in undamaged condition. 7. later that day or shortly thereafter the Applicant attended the warehouse in person to inspect the damage to the sandwich boards. He took a number of photographs of the damage described above which are also in evidence. The Applicant estimates that two-thirds to three quarters of the colour-coated roof sheets and sandwich boards were badly damaged. The Applicant rejected delivery of the sandwich boards and roof sheets claiming that it was the Respondent that caused the damage in the unloading and stacking of the building materials in the warehouse. The Applicant sought to take delivery of the screws and artificial stone. However, the Respondent refused to release these items to the Applicant unless he took delivery of all items and paid its invoice for the unpacking and delivery of the building materials to him. This invoice was rendered on the Applicant on 18 October 2015 in the amount of $1,288.10. This invoice has not been paid up to the date of the hearing. 8. on 23 October 2015 a Mr Cooke notified the Applicant through his solicitor that the company which owned the warehouse in which the building materials were stored had gone into receivership and that it was urgent that the building materials be removed. Mr Cooke provided a quotation for the disposal of the roofing sheets and sandwich boards. Later that day a solicitor acting for the Applicant notified Mr Cooke that he should arrange disposal of the roofing sheets and sandwich boards as soon as possible to minimise storage charges. The solicitor also notified Mr Cooke that the Applicant still intended to collect the artificial stone and screws and would do so as soon as possible. The Respondent arranged disposal of the roofing sheets and sandwich boards shortly thereafter. 9. the shipment had been insured by the Applicant with a China based insurer at prior to export. The Applicant made a claim on that insurance policy in relation to the damaged roofing sheets and sandwich boards and his alleged consequential losses. That claim was refused on or about 10 March 2016. The reasons for the refusal do not appear from the documents submitted by the Applicant. However, he contended before the Tribunal it was because the insurer determined that the damage was caused during the unpacking of the building materials. 10. on or about 10 November 2015 the Applicant purchased replacement roofing sheets and sandwich boards and roofing sheets from another Chinese manufacturer/supplier. These replacement sandwich panels and roofing sheets arrived at Port Botany on or about 27 November 2015 and were unloaded and delivered to the Applicant by another import service company in undamaged condition. The total cost of the replacement sandwich panels and roofing sheets and the costs associated with their import and delivery to the Applicant are $14,927.58. 11. the Chinese manufacturer/exporter that provided the Applicant with the second shipment of roofing sheets and sandwich panels also provided a notice in schematic form detailing safe loading and unloading and other handling practices for the sandwich panels. 12. as at the date of the hearing the Applicant has refused to pay the Respondent for the costs it claims for the unloading of the building materials and the disposal of the sandwich boards. The Respondent has also charged the Applicant storage fees for the artificial culture stone and screws which it refuses to release to the Applicant until is outstanding fees and charges are paid. The total amount of fees and charges the Respondent claims it is owed by the Applicant as at the date of the hearing is $15,333.03.

Applicable law

1. The Applicant claims, in effect, that the Respondent has breached the terms of the contract or agreement between them in relation to the customs clearance, unpacking and delivery of the building materials to him by fatally damaging the roofing sheets and sandwich boards in the course of their unloading and storage in the Respondent's warehouse. He claims compensation for this damage and for a series of consequential losses he claims to have incurred as a result of the damage done to the sandwich boards. The Applicant's cause of action is thus breach of contract.
2. Section 28 of the Fair Trading Act 1987 provides that the Australian Consumer Law (ACL) applies as a law of New South Wales and is a part of the Fair Trading Act 1987. It is to be applied, as relevant, in the determination of a consumer claim brought under Part 6A of the Fair Trading Act 1987.
3. The ACL implies into agreements for the supply of goods and services a number of 'consumer guarantees.' The beach of a consumer guarantee by a supplier of goods and services may entitle a consumer to a remedy for that breach.
4. Section 60 of the ACL provides a guarantee that services will be provided with due care and skill: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
5. Sections 267 to 268 of the Australian Consumer Law sets out the remedies that may be available to a consumer if a supplier fails to comply with a consumer guarantee. Those sections relevantly provide: 267 Action against suppliers of services (1) A consumer may take action under this section if: (a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and (b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and (c) unless the guarantee is the guarantee under section 60 … (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) terminate the contract for the supply of the services. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) terminate the contract for the supply of the services; or (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). 268 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if: (a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (c) both of the following apply: (i) the services, and any product resulting from the services, are unfit for a particular purpose for which the services were acquired by the consumer that was made known to the supplier of the services; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) both of the following apply: (i) the services, and any product resulting from the services, are not of such a nature, or quality, state or condition, that they might reasonably be expected to achieve a result desired by the consumer that was made known to the supplier; (ii) the services, and any of those products, cannot, easily and within a reasonable time, be remedied to achieve such a result; or (e) the supply of the services creates an unsafe situation.
6. I am comfortably satisfied on the facts of this case that the terms of section 60 and 267 to 268 of ACL are engaged by this Application.

Consideration

1. The Applicant's contention that the Respondent's staff failed to unload and store the colour coated roofing sheets and sandwich panels with due care and skill causing them fatal damage is essentially speculative. There is no direct evidence to support this contention. The Applicant's case is, in summary, that there was no damage to the building materials when they left China, or at the time they were unloaded from the ship, and that this damage occurred while the building materials were under the exclusive control of the Respondent, therefore the Respondent's staff must have acted without due care and skill. There are a number of evidentiary and logical difficulties with this argument.
2. 43 First, it is clear from the email correspondence between the Chinese manufacturer/exporter and the Applicant of 7 September 2015 that there was significant damage to the ends of the sandwich boards prior to their despatch to Australia. The damage depicted in the photographs of the building materials post their arrival and unpacking in Australia is clearly more extensive. However, these items were not undamaged at the time of despatch.
3. The Applicant contends that the damage across the lengths of the roofing panels and sandwich boards is consistent with pressure or break points being created by inappropriate lifting practices. He relies upon the notice provided by the second manufacturer/exporter to advance this contention. He says that the Respondent failed to lift the roofing sheets and sandwich boards in the manner depicted in this notice. However the Applicant is unable to establish on the evidence he has submitted that, if this was the cause of the damage, it did not occur due to inappropriate lifting methods being used in the loading of the container prior to delivery. The Applicant has provided no evidence in the form of a sworn statement or the like from any person involved in the loading of the building materials into the shipping container to prove that the building materials were not damaged prior to or during their packing into the shipping container. The photographs of the building materials prior to their despatch do not depict the roofing sheets and sandwich panels across their length, so it is impossible to know what their condition was from these images.
4. Second, the Applicant has not submitted any evidence capable of proving that the building materials did not arrive in undamaged condition at Port Botany. Indeed, it is difficult to see how he could do as he had no access to the shipping container at this time. It is clear from the pre-despatch photographs that the sandwich boards were stacked one on top of the other from the floor (in the case of one stack) and on Styrofoam (in the case of the other stack). The Styrofoam appears quite unstable in the photograph, being crushed on one side. Mr Cooke contended that the photographs also reveal that the roofing sheets and sandwich boards were not secured in any way within the shipping container. He contended that they would therefore have moved within the shipping container during loading and unloading from the ship and while on the high seas en-route to Australia. He suggested that the shipping container may have been subject to substantial movement at sea that could cause its contents to be flung about causing the damage to the roofing sheets and sandwich boards. This possibility appears an entirely plausible explanation of the cause of the damage on the evidence before me.
5. Third, the Applicant's contention that the building materials were wet when he inspected them at the Respondent's warehouse does not prove that they were left exposed to the elements as he contends. The evidence establishes that the building materials were wet when they were packed. While the building materials appear considerably wetter in the photographs taken after they were unpacked than they were prior to their despatch, Mr Cooke gave evidence to the effect that the shipment would have crossed the Equator en-route to Australia and that the shipping container would therefore have been exposed to high temperatures that would cause any water and dampness in the building materials to evaporate and condense. The humidity in the container would have therefore extended the water penetration of the packaging and porous elements of the building materials. This potential cause of the wetness depicted in the building materials at the time of their unpacking appears entirely plausible to me in the circumstances. The email from the exporter to the Applicant of 6 September 2015 is strongly suggestive that this damage was done during loading when it states: "[b] ecause its very long and weight, there will be some damage when loading and unloading."
6. Fourth, there is no actual evidence before the Tribunal to prove any lack of due care and skill in the manner in which the Respondent's staff unloaded the building materials. No sworn evidence has been adduced from any person who observed the unloading of the materials who can point to any deficiency or carelessness. Mr Cooke strongly denied that the Respondent's staff caused the damage to the roofing sheets and sandwich boards during the unloading. He contended that the building materials were unpacked in the usual way and that his staff contacted the Applicant immediately the damage was observed so that he could attend and inspect the shipping container personally.
7. Ultimately, it falls to the Applicant to prove on the balance of probabilities that the Respondent breached the guarantee of due care and skill incorporated into the contract that subsisted between them by section 60 of the Australian Consumer Law. That onus has not been discharged on the evidence before the Tribunal. The Applicant's claim that the Respondent's staff caused damage to the roofing sheets and sandwich boards is merely speculation asserted in the absence of any direct evidence to this effect. The circumstantial evidence strongly suggests that this damage occurred either in the loading of the building materials into the container in China or on the high seas en-route to Australia.
8. There is insufficient evidence before the Tribunal to prove that the Respondent was responsible for any damage to the roofing sheets and sandwich boards. No failure of due care and skill has been established. The Applicant has established no entitlement to any form of compensation in these circumstances.

Conclusion

1. For the reasons set out above, this Application must be dismissed as lacking in substance. P French General Member Civil and Administrative Tribunal of New South Wales 12 August 2016 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2016