Care Park Pty Ltd v Universal One Communication Pty Limited & Anor

Supreme Court of NSW|2009-12-09|Before: Hoeben J, Mr J, Mr P

CITATION : Care Park Pty Ltd v Universal One Communication Pty Limited & Anor [2009] NSWSC 1405

Verdict in favour of the plaintiff against the first defendant in the sum of $12,329.63. DECISION : Verdict in favour of the second defendant. The parties are each to pay their or his own costs of these proceedings.

CATCHWORDS : CONTRACT - car park - whether contract entered into - whether plaintiff entitled to liquidated damages for failure of vehicle owner to pay parking fee - TORT - whether claim in trespass available to car park operator - whether claim for aggravated damages available - failure to plead relief sought in originating process - INJUNCTION - whether damages and adequate remedy - whether grounds for injunctive relief established - COSTS - claim inappropriate for Supreme Court - exercise of costs discretion - CORPORATIONS - effect of corporation being deregistered on relief claimed.

LEGISLATION CITED : Corporations Act 2001 (Cth) District Court Act 1973

Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 CASES CITED : Barker v R (1983) 153 CLR 338 New South Wales v Ibbett (2006) 229 CLR 638

Care Park Pty Ltd - Plaintiff PARTIES : Universal One Communication Pty Limited - First Defendant Josef Alexander - Second Defendant

COUNSEL : Mr J Stoljar SC/Mr P Reynolds - Plaintiff Self represented - First and Second Defendants

SOLICITORS : Parke Lawyers - Plaintiff Self represented - First and Second Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11310/2009 - CARE PARK PTY LTD v UNIVERSAL ONE COMMUNICATION PTY LIMITED and Anor JUDGMENT 1 HIS HONOUR: Nature of proceedings The plaintiff moves by way of summons for the following orders:

Liquidated damages against the first and second defendants jointly and severally in the sum of $4,455.00. 2. Liquidated damages against the first defendant in the sum of $7,095.00. 3. An order that the defendants jointly and severally and by their agents, employees or servants be restrained from entering upon the plaintiff's premises known as the "Officeworks Car Park" situated at 41 George Street in Parramatta, New South Wales. 4. Interest. 5. Costs. 2 The summons did not set out any grounds for the relief sought. There were no other pleadings. The summons was supported by a number of affidavits. An affidavit was filed by the second defendant, who is a director and the sole shareholder of the first defendant, which made it clear that the defendants were contesting the orders sought in the summons. The second defendant represented himself and the first defendant. 3 The nature of the claim in the summons was clarified by written submissions, filed on behalf of the plaintiff, on 3 December 2009. Against the first defendant the plaintiff seeks liquidated damages for breach of contract and unliquidated damages for trespass, together with injunctive relief. Against the second defendant, the plaintiff claims unliquidated damages for trespass and injunctive relief.

Factual background 4 Unless otherwise indicated, I find the facts to be as follows. 5 The plaintiff operates a number of car park facilities in Sydney, including a car park at 41 George Street, Parramatta. The real estate on which the car park is located is owned by Officeworks Super Stores Pty Limited (Officeworks). The car park is adjacent to an Officeworks store in Parramatta and at all relevant times, Officeworks engaged the plaintiff to operate the car park. The car park contains 20 parking bays. On a normal working day, 5 - 8 of those bays are used by Officeworks staff with the balance available for commercial parking. One of those latter parking bays is identified for use by disabled drivers. The car park is available for parking 24 hours a day. 6 The car park operates by a system referred to as a "Pay and Display" system whereby a user of the car park is required to purchase a ticket from a ticket machine and display the ticket on his or her vehicle's dashboard. The cost of a ticket is $2 and the maximum permitted length of stay is one hour. Officeworks in some instances provides its customers with a token whereby the $2 parking fee can be redeemed. The revenue derived by the plaintiff from operating the car park is the net cash (after redemption) in the parking ticket machines. 7 The terms and conditions relating to the use of the car park (terms) are set out in prominent signage around the car park, including at the entrance. These terms were as follows: "CONTRACTUAL TERMS AND CONDITIONS By entering and remaining in this car park you enter into a contract with Care Park upon these terms and conditions. If you do not accept these terms, you must immediately leave the car park. "1. You must obtain a valid ticket or pass and display it clearly on the dashboard of the vehicle while parked. park only in marked bays or as directed by Care Park and comply with parking signs. Not park in a disabled bay without displaying a current disability permit and a valid ticket or pass. 2. If you fail to comply with condition 1, or if your ticket or pass expires, you agree to pay liquidated damages of $88.00 to Care Park. You further agree that claim for liquidated damages is given sufficiently by Care Park affixing a Payment Notice to your vehicle. 3. Provided payment of the liquidated damages is made within 14 days, Care Park will accept $66.00 in settlement. If the liquidated damages remain unpaid for 60 or more days, you agree to also pay $77.00 legal costs for our lawyers to demand payment. 4. Care Park may enter, move or tow away your vehicle for operational or safety reasons.

Care Park may at its discretion revoke your licence to use its car parks by notice affixed to your vehicle or posted to the registered owner.

The services provided by Care Park will be rendered with due care and skill to the extent required by section 74 of the Trade Practices Act 1974 and applicable similar State legislation. 7. Apart from the statutory liability referred to in condition 6, Care Park will not under any circumstances be liable or responsible for any damage or loss, whether arising in tort, contract, bailment, or howsoever otherwise; and all injury loss or damage to person or property, is at the risk of persons entering on or having property in this car park. 8. You agree to indemnify Care Park against any loss or damage it may suffer arising out of your negligence or breach of these conditions. 9. No person other than the Managing Director of Care Park has authority to vary, waive or excuse compliance with any of these conditions. 10. In these conditions "Care Park" means Care Park Pty Ltd, ABN 47 083 921 215 and its assigns and includes its employees and contractors." 8 In relation to customers of Officeworks, the following was set out on the signs: "Officeworks Customer Parking 1. Read the contractual terms and conditions 2. Buy a parking ticket (you will also receive a receipt) 3. Display the ticket (NOT THE RECEIPT) clearly on dashboard of vehicle 4. Present your receipt at the checkouts for the same day's parking 5. You will be given a token to place in the token machine located inside Officeworks store entry 6. Insert the token into the machine to redeem the parking fee paid VEHICLES MUST DISPLAY A VALID TICKET ON THE DASHBOARD, FAILURE TO DO SO WILL RESULT IN ISSUE OF A PAYMENT NOTICE FOR $88." 9 Located in the centre of the sign in large print is the following: "PARKING RATES $2.00 per entry Maximum stay 1 hour" 10 The procedure adopted by the plaintiff in relation to the enforcement of these provisions was that when a user did not purchase a ticket and this was discovered by an employee of the plaintiff, a payment notice for the $88 would be left on the windscreen of the vehicle. In the event that payment was not received within 60 or more days, the plaintiff would apply for preliminary discovery at a Local Court against the Roads and Transport Authority (RTA) for information as to the identity of the owner of the vehicle. Once this information was obtained, the plaintiff would send a letter of demand for $165 (i.e. $88 plus $77 legal costs) to the owner. 11 Between 18 February 2008 and 15 January 2009 a vehicle with registration No BCT 80H was issued with 27 payment notices for $88 each.

Between 25 September 2007 and 8 November 2007 a vehicle with registration No BCT 80J was issued with 6 payment notices for $88 each.

Between 15 March 2007 and 13 November 2008 a vehicle with registration No AXZ 47C was issued with 23 payment notices for $88 each.

Between 28 May 2007 and 27 November 2008 a vehicle with registration No CLF 300 was issued with 10 payment notices for $88 each.

Between 28 December 2006 and 20 February 2007 a vehicle with registration No ANY 52W was issued with 4 payment notices for $88 each. 12 Each of those vehicles was owned by the first defendant and at the time was being driven by either the second defendant or an employee of the first defendant. No payment was received by the plaintiff in respect of any of the 70 payment notices referred to. 13 By letter dated 21 January 2009 the solicitors for the plaintiff sent both defendants letters which advised that they were forbidden from entering the car park and that if they did so this would be an act of trespass. On 28 January 2009 an employee of the plaintiff, Mr Zarb, saw vehicle BCT 80H arrive and park in the car park and saw the second defendant step out of the vehicle. He handed the second defendant a copy of the letter dated 21 January 2009 and informed him that he was not welcome in the car park, that he should remove his vehicle and that he was trespassing. The second defendant refused to move the vehicle and walked out of the car park towards Macquarie Street. 14 There was an issue between the second defendant and Mr Zarb as to what happened on 28 January 2009. The second defendant said that Mr Zarb spoke to him in a rude, loud and disrespectful manner, which caused him to feel humiliated. The second defendant said that after speaking with Mr Zarb he did not walk towards Macquarie Street but went into Officeworks. It was common ground that on this occasion the second defendant had paid for a ticket to use the car park. 15 Having seen both Mr Zarb and the second defendant give their evidence, I have no hesitation in accepting completely the evidence of Mr Zarb on this issue. I am satisfied that on 28 January 2009 Mr Zarb said to the second defendant "You need to leave now. You are not allowed to park here any more, you are officially trespassing. This is a letter which we sent to you." I am satisfied that this was said to the second defendant in an appropriate tone of voice and that Mr Zarb did not call out in a rude, loud or disrespectful manner. I am also satisfied that the second defendant did not comply with the direction to move his car, but walked out of the car park towards Macquarie Street. 16 There was no evidence that either the first or second defendant has used the car park since 28 January 2009. In his evidence, the second defendant agreed that he had seen the signs in the car park which set out the terms on which cars could be parked there and that he had read them. I am satisfied that the other employees of the first defendant who used the car park also saw the signs. There were two signs located at the entrance to the car park, there was a sign located with the ticket machines and there were three other large signs positioned across the rear of the car park. I am satisfied from the photographs and other evidence that these signs were prominently displayed and could be easily read by anyone driving into the car park. 17 In its case the plaintiff relied upon an affidavit of Mr Gary Graco, sworn 16 September 2009. Mr Graco was an accountant and the contents of his affidavit constituted expert evidence as to the loss suffered by the plaintiff when a car park space was taken up by a non-paying user, having regard to the usual occupancy rates for that car park. I am satisfied from the material in Mr Graco's affidavit that the figure of $88 as damages for using the car park without paying or for overstaying the 1 hour limit is an appropriate estimate of the loss suffered by the plaintiff and that it is not an unreasonable amount to claim in those circumstances. In reaching that conclusion, I have also had regard to the affidavit of Ms Pointon, the plaintiff's financial controller, which was to similar effect.

Claim for breach of contract against the first defendant 18 The plaintiff submitted that as manager of the car park it was entitled to impose terms and conditions in respect of its entry and use. I am satisfied that the terms were clearly displayed and were reasonable. Thus by driving into the car park and leaving a vehicle parked in it, a person would be regarded as having accepted the terms of the offer. Accordingly, on every occasion that a servant or agent of the first defendant drove a vehicle into the car park and left it there, a contract arose between the plaintiff and the first defendant. The terms of that contract were those set out on the signs. 19 There is nothing novel in that situation. Griffiths CJ set out the position at law in Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 386: "The first question that arises for consideration is: On what terms did the plaintiff ask for and obtain admittance to the defendants' premises? It is clear that the invitation which the defendants offered to members of the public to come upon their premises was conditional, and it must be taken that members of the public, who availed themselves of the permission, agreed to be bound by the terms on which it was granted so far as they were acquainted with them. There is no doubt that in fact the terms were that persons who should obtain admittance on payment of one penny, and when admitted should be free to depart from the premises by water, but should not be entitled to egress by land except on payment of another sum of one penny. If the plaintiff was aware of these terms he must be held to have agreed to them when he obtained admission. If he had been a stranger who had never before been on the premises, it would have been sufficient for the defendants to prove that they had done what was reasonably sufficient to give the plaintiff notice of the conditions of admittance: Parker v South Eastern Railway Co cited with approval in Richardson v Rowntree . In this case, however, it appeared that the plaintiff had been on the premises before and was aware of the existence of the turnstiles and of the purpose for which they were used. It was therefore established that he was aware of the terms on which he had obtained admittance and it follows that he had agreed to be bound by them." 20 The evidence is overwhelmingly to the effect that the terms of the contract between the first defendant and the plaintiff for the parking of the first defendant's cars were breached. On 70 occasions 1 of 5 vehicles registered in the name of the first defendant entered and remained in the car park and the driver did not purchase and display a ticket. As a result a payment notice for $88 was affixed to the particular car on each of these occasions. None of those notices were paid. 21 In his evidence and in submissions, the second defendant did not deny those basic facts. He appeared to rely upon two propositions. The first was that the first defendant's employees, including himself, who attended the car park did so for the purpose of purchasing items from Officeworks. The second defendant suggested, without adducing any evidence, that this in some fashion entitled the first defendant's employees to free use of the car park. In his affidavit the second defendant said that on one occasion an Officeworks supervisor had told him that Officeworks were happy to waive "those tickets" because the first defendant was such a valued customer. 22 Even if I accepted that such a conversation took place, it was not explained how an employee of Officeworks would have the power to grant such a waiver when it was the plaintiff which controlled entry to and from the car park. The other matter relied upon is simply not a defence to the plaintiff's claim in contract. 23 The second matter upon which the defendants relied was an assertion that the cars would often only be in the car park for 10 minutes or less, and that when the driver returned a payment notice would be attached to the car. While I accept that that may have happened on one or two occasions, it still provides no answer to the contractual claim. I am satisfied that on most of the occasions that a payment notice was attached to one of the first defendant's vehicles, the vehicle had been in the car park for considerably longer than 10 minutes. The evidence of Mr Zarb was that he usually checked the car park two or three times per day with a maximum of four times. This suggests that it was unlikely that Mr Zarb would have consistently arrived within 10 minutes of one of the first defendant's vehicles having been parked. 24 It follows that the plaintiff has made out its claim against the first defendant for breach of contract. The first defendant has not paid any of the 70 notices and accordingly, the sum for liquidated damages applicable in each case is $165.00, i.e. a total of $11,550. Interest on that figure at 9% per annum from 23 March 2009 would add a further $779.63. This produces a total of $12,329.63.

Action in trespass against both defendants 25 The plaintiff in submissions claims against the first defendant for trespass in respect of the 70 occasions on which its cars used the parking facilities in the car park without purchasing a ticket. It claims against the second defendant for trespass in relation to the 27 occasions on which vehicle BCT 80H used the parking facilities at the car park without purchasing a ticket. The plaintiff also relies upon the express refusal by the second defendant to remove vehicle BCT 80H from the car park on 28 January 2009 despite Mr Zarb expressly removing his entitlement to park the car on the premises and advising him that to continue to do so would be an act of trespass. 26 It is clear that the plaintiff has standing to sue in trespass. It had possession of the car park and was entitled to allow or refuse entry to it. (New South Wales v Ibbett (2006) 229 CLR 638 at [31]). 27 The plaintiffs rely upon the following statement of principle from Barker v R (1983) 153 CLR 338 at 357 where Mason J said: "At common law a person enters as a trespasser if he enters land in the possession of another without justification (see Salmond and Heuston , Law of Torts, 18 th ed. (1981), Ch.3). Justification may take a variety of forms including, inter alia, a paramount right to possession, some other statutory or common law right of entry, the leave and licence of the person in possession and, in the absence of negligence, involuntary and inevitable accident. While the old common law forms of action prevailed, the action for trespass to land was restricted to trespassory entry; if the actual entry was and remained lawful, subsequent presence or action on the land would not found an action in trespass. Under the modern law of tort, however, a person who has lawfully entered and been upon land which remains in the possession of another is liable in trespass if his justification for being upon the land ceases or if he performs acts upon the land which take him outside the scope of his justification for being thereon. When the permission or authority (leave and licence) of the person entitled to possession is relied upon to justify what would otherwise constitute a trespass, a person enters land as a trespasser at common law if his entry is beyond the scope of the permission. If the entry is within the scope of the permission, he will become a trespasser at common law only when the permission to be upon the land is revoked or exhausted or when his conduct upon the land is such that his presence thereon is outside the scope of the permission." 28 I am not persuaded that either the first defendant or the second defendant, except for what occurred on 28 January 2009, were trespassers as the plaintiff asserts. The licence granted by the plaintiff to members of the public to enter and use the car park was a limited licence. Members of the public were permitted to enter with their vehicles provided that they paid the requisite $2 fee and did not remain for longer than one hour. It does not follow, however, that failure to comply with that requirement rendered the owner of the motor vehicle a trespasser. 29 The consequences of either overstaying the one hour limit, or of not paying the $2 were clearly spelled out in paragraphs 2 and 3 of the terms. Nothing was said about the owner or driver of the car becoming a trespasser. On the contrary, clause 5 of the terms described a special process as a result of which a user might become a trespasser. That process was not utilised until 28 January 2009. 30 The terms of the contract between the plaintiff and owners of vehicles clearly set out the consequences of a breach of that contract. This consequence formed the basis of the plaintiff's claim in contract. There is no basis for implying into the terms a further condition that in addition to the specified monetary sum, a person breaching the terms would also become a trespasser and be liable for unquantified damages as a result. 31 The fact that payment notices were attached to each car after a breach was identified, is consistent with that interpretation and is consistent with the plaintiff affirming that it intended to rely upon its contractual rights in the case of each breach by the first defendant. 32 The decision to revoke the first defendant's licence to use the car park, which was effected by the letter of 21 January 2009 and the conversation between Mr Zarb and the second defendant on 28 January 2009, also supports that interpretation. 33 There are a number of other difficulties in relation to the trespass claim. There was no evidence before the Court which would enable the Court to find that on the 27 occasions that vehicle BCT 80H used the car park without paying, the second defendant was the driver. The only evidence was that that vehicle was driven by the second defendant and by other employees of the first defendant. Such an inference could not be drawn simply from the fact that on 28 January 2009 the second defendant was the driver of that vehicle. 34 A more fundamental problem, which affects the whole claim in trespass, is that damages for trespass were not sought in the summons. No application to amend the summons was made at the time of the hearing. More importantly, no notice was given to either the first or second defendant of an intention to amend the orders sought in the summons. Since the second defendant was not legally trained and was representing himself and the first defendant, it would be unfair to award damages against the first and second defendants on that basis when they were not given any notice that such a claim was going to be pursued. To do so would be contrary to the very purpose behind the filing and service of pleadings. 35 That problem also applies to the only circumstance which, in my opinion, gives rise to a claim in trespass. I refer to the incident on 28 January 2009 when Mr Zarb told the second defendant that his right to use the car park had been revoked and that he should forthwith remove his vehicle and the second defendant refused to do so. 36 If it were not for the problem arising from the form of the summons, I would have been inclined to award damages for trespass against the second defendant of $200. Because that relief was not claimed in the summons, however, I decline to make such an order. 37 There is a claim for aggravated and exemplary damages. This depended upon the plaintiff being successful in its claim in trespass in respect of the 70 occasions when the car park was used but no payment was made. Since the plaintiff has failed in the trespass claim, it has no entitlement to that special head of damage. 38 Even if the plaintiff had been successful in its claim for trespass, I would not have awarded either aggravated or exemplary damages. The rules of court are clear in relation to those heads of damage. They have to be expressly pleaded in the originating process and particulars provided. Those requirements (which again are based on the principle of fairness) were not complied with and for that reason alone I would have refused to award damages of that kind. 39 The plaintiff seeks injunctive relief against both defendants. The injunction sought is unrestricted in time but relates solely to the George Street car park in Parramatta. 40 The plaintiff submits that a quia timet injunction should be granted to restrain apprehended future breach of contract or future trespasses. The plaintiff submits that there is a reasonable apprehension that the defendants will again in the future breach the terms of entry and use of the car park and/or commit trespass by entering the car park, despite the revocation of their licence to do so. In that regard, the plaintiff relies upon the previous history of 70 occasions of parking without paying. 41 The plaintiff submits that in this case damages are not an adequate remedy. This was so, it submitted, because the prospect of liquidated damages had not been sufficient to discourage the first and second defendants from parking in the car park on 70 occasions without paying. The plaintiff also refers to the difficulty in assessing damages in trespassory situations. It submitted that an injunction was required to adequately protect the plaintiff's position as manager of the car park. 42 There was no evidence that either the first or second defendant has used the car park since 28 January 2009. In his evidence the second defendant said that the first defendant was no longer trading and that it no longer has an office in Parramatta. In those circumstances, I am not satisfied that it is appropriate to grant the injunction sought by the plaintiff. The situation has changed considerably from when the 70 breaches of contract occurred. So far as I can see, the threat of further breaches of contract occurring is low. There is no imminent or likely threat of either the first defendant or the second defendant using the car park. 43 I am also not persuaded that damages would be an inadequate remedy. Since the licence of the first and second defendants to use the car park has been withdrawn, any further use of the car park would constitute a trespass and as I have indicated above, the damages likely to be recovered by the plaintiff in trespass would exceed the liquidated damages recoverable under the contract. That, it seems to me, would be a sufficient disincentive for the first and second defendants to continue using the car park. 44 In the course of reading the affidavits and other evidence, I became aware that on 10 September 2009 the first defendant was deregistered. Section 601AD(1) of the Corporations Act 2001 (Cth) makes it clear that "a company ceases to exist on deregistration". Before I can make any orders against the company, its registration needs to be reinstated by ASIC. 45 Under s 601AH(2) I have power to order that ASIC reinstate the registration of a company if an application for reinstatement is made by a person aggrieved by the deregistration and if I am satisfied that it is just that the company's registration be reinstated. No application for reinstatement was made to me in the course of the proceedings. If such an application is made in the future, I am prepared to order that ASIC reinstate the registration of the first defendant. It is clear from exhibit "DLP-4" to the affidavit of Ms Pointon that the deregistration of the company was obtained by the filing of an incorrect declaration. The declaration by the second defendant sent to ASIC included an assertion that: "(e) The company has no outstanding liabilities; and (f) The company is not a party to any legal proceedings."

Both those declarations were clearly incorrect at the time they were made.

Costs 46 These proceedings were brought in the Supreme Court. Because of the form of the summons, the maximum monetary damages which could be recovered were $11,550 plus interest. The fact that injunctive relief was sought did not require that the matter be brought in the Supreme Court. Section 46 of the District Court Act 1973 provides that the District Court has power to grant any injunction which the Supreme Court might have granted if the action were proceeding in the Supreme Court. It is clear that this matter should never have been brought in the Supreme Court but in the District Court. 47 In addition, I have had regard to the fact that the plaintiff has failed in its other damages claims and in its claim for injunctive relief. Taking those matters into account, I do not think it is appropriate that the plaintiff should have any costs of these proceedings. 48 The effect of these reasons is that there must be judgment in favour of the second defendant. Normally, the second defendant would be entitled to his costs. In this case the second defendant was self-represented and although he claimed that it had cost him $500 to attend Court, he offered no evidence to substantiate that statement. Moreover, his success in the trespass claim occurred because of the plaintiff's oversight in failing to amend its summons. He did not succeed on the merits. I also take into account that much of the conduct which gave rise to these proceedings, i.e. parking without paying, was carried out by the second defendant in a provocative and high-handed manner. In those circumstances, the second defendant should not have any costs of these proceedings.

Conclusion 49 Because of the problems created by the deregistration of the first defendant, I do not propose to make any orders at this stage. This is to provide the plaintiff with the opportunity of making an application to me under s 601AH(2) of the Corporations Act, to direct that ASIC reinstate the registration of the first defendant. Of course once ASIC reinstates the registration of the company, the company is taken to have continued in existence as if it had not been deregistered (s 601AH(5)). 50 Should the plaintiff apply for such an order, the orders which I would in due course make after the reinstatement of the registration of the company, are as follows:

(i) There should be a verdict in favour of the plaintiff against the first defendant in the sum of $12,329.63.

(ii) There should be a verdict in favour of the second defendant.

(iii) The parties are each to pay their or his own costs of these proceedings. 51 On the handing down of this judgment, I was advised that the registration of the first defendant had been re-instated and that orders could be made against it. Accordingly, I made the orders set out in para [50] hereof. **********

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At a glance

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Judgment (27 paragraphs)

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