Espresso Company Australia Pty Ltd v Savino Del Bene Australia Pty Ltd

Solicitors: SRB Legal, Perth, plaintiff Holding Redlich, Sydney, first defendant and cross-defendant Mason Black Lawyers, Sydney, second defendant and cross-claimant No appearance, third defendant No appearance, fourth defendant File Number(s): Case number 2019/00039504

Background

1. The plaintiff, Espresso Company Australia Pty Ltd ("Espresso Company"), ordered 53 'Anfim' coffee grinders ("Goods"), from the manufacturer in Italy, Anfim Milano SRL ("Anfim"). Anfim is not a party to the proceedings.
2. The First Defendant, Savino Del Bene Australia Pty Ltd ("Savino Australia") is a wholly owned subsidiary of the global company based in Italy. Savino Australia and/or Savino Italy was engaged by Espresso Company to arrange carriage of the goods from Italy.
3. The shipping from Milan to Australia was arranged by Savino Italy. The Goods were transported by ship between Italy and the port of Sydney, then by road to Savino Australia's warehouse in Mascot, Sydney. From Mascot the goods were transported in the truck of the third /fourth defendant to the Espresso's premises in Belrose, Sydney.
4. The Second Defendant, FRF Holdings Pty Ltd t/as FRF Couriers ("FRF Couriers") was engaged by Savino Australia to undertake the road carriage from the property of Savino Australia in Mascot, to the property of Espresso Company in Belrose. FRF Courier's trading terms, on which they contracted with Savino Australia in January 2013, contained the terms of their contract.
5. FRF sub-contracted with Dotrans Logistics Pty Ltd, third defendant, and/or Lam Vien Do t/as Dotrans Logistics, fourth defendant ("Dotrans") to carry the grinders to Espresso Company. The goods were damaged during transport from Mascot to Belrose, on 1 March 2018.
6. With respect to the Third and Fourth Defendants, Mr Do, who was the driver of the truck, operates as both a sole trader and has a company, Dotrans Logistics Pty Ltd. There is a contract between the Third and/or Fourth Defendants, and FRF Couriers ("FRF-Dotrans Contract"). This contract bears both Mr Do's sole trader ABN and the company's name. Neither Mr Do, nor Dotrans, filed an appearance or a defence.

The proceedings

1. This matter was listed for hearing on 16 December 2019. On that date each active party in the proceedings tendered affidavit evidence - there were lengthy annexures to the affidavits upon which the parties variously relied to establish the contracts said to have been made between the parties. As indicated above neither the third or fourth defendant filed an appearance or a defence.
2. Only one witness was cross-examined in the hearing, this was Mr Byron Winburn-Clarke, solicitor for the plaintiff.
3. The hearing of evidence concluded on 16 December 2019 and the matter was adjourned, part heard, and directions were made for the filing and service of written submissions.
4. The matter was listed for further submissions in reply, on 3 April 2020. Subsequently, given Covid 19 protocols, the hearing of 3 April was vacated and the timetable for submissions in writing was extended to 9 April 2020. Lengthy and detailed submissions in reply were received from the plaintiff on 14 April 2020. Correspondence from the first defendant on 15 April 2020 raised various issues and objections, and noted the plaintiff objected to the raising of those issues by the first defendant.
5. The court then made the following directions on 15 April 2020: 1) The court notes the complex and lengthy submissions of parties in this matter, and the number of authorities cited, and the number of legal issues raised. The presiding magistrate remains concerned, as was expressed earlier in the proceedings, of the potential for disproportionate costs in this matter, noting the amount of the claim. The parties are again invited to consider whether settlement is possible in order to reduce the risk of disproportionate costs. If the matter settles the court is to be advised as soon as possible. 2) The procedural fairness concerns of the second defendant [should read first defendant] are noted. 3) Given procedural fairness concerns, and the complexity and number of legal issues raised, and the number of authorities cited, then it is appropriate for this matter to be listed for closing submissions to be made orally by legal counsel. Noting the substantial written submission filed to date, and to reduce costs, there will be no further timetable for written submissions to be prepared and filed. 4) The matter is to be listed for submissions on 12 May 2020 (see direction 7 below). If this date is unsuitable to any party, then the parties are to confer as to availability and are to send to CMO by email their available dates. 5) The date of 8 May 2020 when this matter was listed for decision only, is vacated. 6) Hard copies of all legal authorities relied upon are to be delivered to the Chief Magistrates Office, level 5, Downing Centre Local Court, as soon as possible and marked "Attention Magistrate Huntsman" 7) Given the current Covid 19 situation, there will be arrangements in place on the hearing date to address distancing concerns. The parties may attend in person, or by teleconference. If the parties attend in person, physical spacing techniques will be employed in the court room. Instructing solicitors will not be seated at the bar table, but can attend and be seated in the body of the court room. Counsel will be spaced at the bar table, and it may be that only one Counsel will physically occupy the bar table at any time. The Presiding Magistrate will ensure such distancing techniques are maintained for those who attend in person on 12 May, and those who attend by telephone will participate by teleconference. 8) Any party attending by telephone must ensure that any written material is provided to the court and the parties prior to the scheduled date. However given there will be no further timetable for written submissions it is anticipated there will not be any further written material to be provided.

The evidence

1. As indicated above the evidence consisted of affidavit evidence and the oral evidence of Mr Byron Winburn-Clarke, solicitor for the plaintiff. The evidence will be further detailed below. The parties also settled a statement of agreed facts.
2. The focus of the parties' submissions were to the construction of contracts and Bills of Lading, bailment, and applicable legal principles. The parties' submissions as to these issues were lengthy and have been extracted and/or summarised below.

Agreed facts

1. The parties agreed on the following facts.
2. On 23 May 2017 the First Defendant notified the Plaintiff by email that it had accepted the Plaintiff's credit application and emailed the "Savino Del Bene Australia Pty Ltd - Terms and Conditions of Contract" to the Plaintiff.
3. The Plaintiff contacted the First Defendant to arrange for the ocean freight to Australia and for local delivery of the Goods and provided the following documents to the Plaintiff on or about the date they bear: 1. Express Bill of Lading dated 19 January 2018 issued by Savino Del Bene Italy (who is not a party to the proceedings) ("House Bill of Lading"); 2. Arrival Notice dated 5 February 2018 bearing the details of the First Defendant; and 3. Tax Invoice 230862 dated 12 February 2018 bearing the details of the First Defendant.
4. On 1 March 2018 the First Defendant engaged the Second Defendant to undertake and/or arrange the delivery of the Goods between the First Defendant's warehouse in Mascot to the Plaintiff's premises in Belrose.
5. The Second Defendant had previously entered into a contract with the First Defendant on 30 January 2013 to provide cartage services and which allowed for the Second Defendant to subcontract any part of the cartage services.
6. On 1 March 2018 the Goods were transported in a truck driven by Mr Do, who trades as the Fourth Defendant and who is also the sole director of the Third Defendant.
7. The Goods were damaged on 1 March 2018 whilst in transit on the road between the First Defendant's warehouse in Mascot to the Plaintiff's premises in Belrose, and to such an extent that they were rendered in a condition unfit for resale.
8. The Plaintiff notified the First Defendant of the damage to the Goods on 1 March 2018.
9. The First Defendant provided CCTV stills from the First Defendant's warehouse to the Plaintiff on 2 March 2018.
10. The First Defendant has sent documents titled "Notice of Intent to Claim" to the Second Defendant on 7 and 9 March 2018 and a Letter of Demand on 15 March 2018.
11. The Goods were unable to be repaired or salvaged and were disposed of.

The plaintiff's claims

1. The plaintiff makes the following claims: 1. As against the First Defendant: 1. a claim for money due on an account stated; 2. a claim for breach of contract; and 3. a claim for breaches of duties owed as a bailee. 1. as against the Second Defendant: 1. a claim for breaches of duties owed as a bailee; and 2. a claim in negligence for breach of a common law duty of care; and, 1. as against the Third and Fourth Defendants: 1. a claim for breaches of duties owed as a bailee; and 2. a claim in negligence for breach of a common law duty of care.

The claim of the cross claimant, FRF Couriers, against Savino Australia, cross defendant

1. In the cross claim by FRF Couriers against Savino Australia, FRF Couriers rely on an indemnity clause in the contract it has with Savino Australia, so it states if there is any liability for damage then it is indemnified under the contract.

The Evidence

1. The parties relied on agreed facts and affidavit evidence. The plaintiff's evidence consisted of an affidavit by the plaintiff's solicitor, Mr Byron Andrew Winburn-Clark who was also cross-examined at the hearing; and also the affidavit of Tye Joyce, Marine and Commercial Recoveries Consultant at National Transport Insurance Limited ("NTI"). The first defendant/cross defendant relied on affidavit evidence by Kathryn Julie Johnston and the second defendant/cross claimant relied on affidavit evidence of Sam Giannetto.
2. Only one witness was required for cross examination in the proceedings, this was Mr Byron Andrew Winburn-Clark. The affidavits of all other witnesses were received in evidence and were not challenged in cross-examination.
3. The affidavit evidence of the plaintiff's witnesses (and the annexures thereto) indicates that by email of 23 May 2017, Espresso Company was advised that the credit application by Espresso Company with Savino Australia had been approved. The letter attached to the email is on Savino Australia letterhead and contains the words "International Freight Forwarding Company", and "Head Office [Italian address]". The header to the letter also states the Sydney, Melbourne and Brisbane addresses. The letter informs that the credit application has been approved, and that the terms and conditions are attached, (the attached terms and conditions contain clauses 1-42.8, which are discussed below). Also attached to the email are the bank account details.
4. An email of 15 December 2017 (page 14 of court book) from Anfim to Espresso Company states "will you please ask your freight forwarder to get in touch with their Italian counterpart to organise pick up". An email from Anfim to Savino Australia, Espresso Company and others, dated 19/12/17 requests collection of the goods "give instructions to your local agent". In an email of 17/12/17 (p 12 court book) Savino Australia says they will contact their Milan office; and Savino Australia advises Anfim that they will give instructions "to our Milan office" (p118 of the court book/Exhibit 1) . An email of 18/12/17 to Anfim from Espresso says that "Savino is responsible for this shipment". The purchase price of the goods, was Euro 28,024.85 - as stated on an invoice issued by Anfim to Espresso Company dated 21 December 2017. This invoice states that Anfim's terms and conditions apply and that the goods remain the property of Anfim until payment.

Terms of contract between Espresso Company and Savino Italy.

1. In this matter there was a contract between the plaintiff, Espresso Company, and Savino Italy. This contract was for the shipment of the particular goods subject of the current dispute.
2. The terms of that contract were detailed and subject of much argument in these proceedings as to whether it is a straight house bill of lading, or a port to port bill of lading. Savino Australia argues that is a house bill of lading, noting:

• In the top left, there is a denotation that this is a straight house bill of lading i.e. it goes straight from Anfim to Espresso company, routed via Savino Australia's warehouse.
• In the bottom right of the bill of lading it says … The goods to be delivered at the above mentioned port of discharge or place of delivery, whichever applicable, subject always to the exceptions, limitations, conditions and liberties set out on the reverse side hereof, which the shipper and/or consignee agrees to accepting this bill of lading. …READ CLAUSE CONCERNING EXTRA FREIGHT AND LIMITATION OF LIABILITY ON THE REVERSE SIDE HEREOF

1. The plaintiff argues that it is a port to port bill of lading and that the obligations under this contract were discharged when the goods reached the port of Sydney. The plaintiff in detailed written submissions in reply states: The Bill of Lading 20. The First Defendant's written submissions deal at length with the law relating to Bills of Lading. However, as was submitted by the Plaintiff (at [19]) of its earlier submissions, in this case there were two distinct stages of carriage: . a. port-to-port carriage by sea from Genoa, Italy to Sydney, Australia. This stage was the subject of the Bill of Lading at pages 110 and 111 of the Court Book; and b. road transport: i. from the Sydney port to the First Defendant's warehouse at Mascot, as stated in the Bill of Lading, and ii. from the First Defendant's warehouse to the Plaintiff's warehouse. 21. The road carriage was the subject of the Savino Australia Contract, as described at [4] of the Plaintiffs submissions in chief. That contract is at pages 37 to 39 of the Court Book. 22. The Court should reject the First Defendant's submission (at [40]) that the Bill of Lading governed all stages of carriage. 23. Bills of Lading can be "combined bills", which cover both ocean and road carriage, or "port­ to-port" bills, which cover only the carriage by sea from the loading port (Genoa) to the destination port (Sydney). This distinction is discussed below. 24. As the contract evidenced by the Bill of Lading ended when the Goods landed at Sydney port - or, for the reasons discussed below, at the very latest when the Goods landed at the First Defendant's warehouse in Sydney-that contract does not govern the terms of the agreement between the Plaintiff and First Defendant for the road carriage between the First Defendant's warehouse and the Plaintiff's warehouse, being the leg of carriage in which the damage occurred. The House BIii of Lading In this case was a Port-to-Port Bill 25. As noted above, Bills of Lading can be "combined bills" which cover both ocean and road carriage, or "port-to-port'' bills which cover only the ocean carriage from the loading port to the destination port. The submission in chief mistakenly referred to the First Defendant's property as being In Belrose. It is not disputed that it is In fact in Mascot. 26. The BIii of Lading in this case was a port-to-port bill of lading. It was the contract that governed the carriage by sea of the Goods, and the obligations under it were discharged at the port of discharge, being Sydney. 27. The House Bill of Lading can be found at page 110 of the Court Book. One third of the way down the page is a series of small boxes showing: a. Export Carrier as: Folegandros 2 7NNEANL-GOA b. Port of Loading: Genoa.IT c. Port of Discharge: Sydney, NS AU d. Place of Delivery: [BLANK] e. Place of Receipt: [BLANK} 28. In order for the Bill of Lading to be a "combined" bill of lading, the "place of delivery" box would be required to be·completed. It is not completed. 29. In Parlux SpA v M & U Imports Pty Ltd (2008] VSCA 161 (at [48]), the Court considered this point: "...nevertheless it seems to me that statements and notations of those kinds serve principally to make explicit what is really implicit in the very provision of separate, additional spaces for 'Place of receipt' and 'Place of delivery', namely that unless something is entered in at least one of those spaces, the bill should be understood as a port-to-port bill only." 30. In Parlux (at [47]), the Court referred to the statement of Carruthers Jin The Resolution Bay (10 Unreported, Supreme Court of NSW, 6 December 1994, BC9403463, 4-5) In which his Honour adopted the comments of Sheller JA in The Antwerpen: 11 "This case emphasises that if carriers wish to ensure that a bill of lading takes effect as a combined transport bill they must Insert a meaningful address fn the 'Place of Acceptance' and/or 'Place of Delivery' boxes on the face of the bill.(11 Glebe Island Terminals Pty ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206.) 31. As the contract evidenced by the Bill of Lading in this case was discharged when the Goods landed at Sydney port, Its terms did not govern the road carriage leg during which the damage occurred . 32. Even if the Court determines that the Bill of Lading Is a "combined bill", then delivery (and discharge of the contract) in any event occurred at the First Defendant's warehouse. 33. Clause 12 of the Bill of Lading states (12 Court Book page 111): 12 Delivery of Goods a)Goods shall be deemed to be delivered when they have been handed over or placed at the disposal of the Consignee or his agent in accordance with this BL or when the Goods have been handed over to any authority or other party to whom, pursuant to the law or regulation applicable at the place of delivery, the Goods must be handed over, or such other place at which the FF Is entitled to call upon the Merchant to take delivery. 34. Reference to 'placed at the disposal' of the Plaintiff as the Consignee, in the context of a port­ to-port Bill of Lading, means the port of discharge, being Sydney. But If the Court finds that the Bill of Lading In this case is a combined bill, then the Goods were placed at the disposal of the Plaintiff as Consignee at the First Defendant's warehouse in Mascot. · 35. The Bill of Lading at page 110 of the Court Book (top right hand side) states in the box titled 'Routing Instructions':'For Delivery apply to: Savino Del Bene Australia Pty Ltd, Suite 1, Ground Floor, 247 King Street, Mascot." That required the Consignee (the Plaintiff) to apply to ("call upon") the First Defendant's warehouse premises to take deilvery. 36. It follows that the Goods were placed at the disposal of the Consignee (the Plaintiff) either at the Sydney port (if the Court accepts the Plaintiff's submissions that it was a "port to port" Bill of Lading) or at the First Defendant's warehouse in Mascot (if the Court determines it was a "combined" Bill of Lading). 37. In either circumstance, the transport of the Goods by road from the First Defendant's warehouse was performed under the Savino Australia Contract, and not the Bill of Lading.

The Savino Australia - Espresso contractual terms

1. There was a contract between the first defendant, Savino Australia, and the plaintiff. It is argued by Savino Australia that this was in the nature of an umbrella agreement between the parties. Espresso Company submits that this is the contract which applies to the shipment of these goods. Savino Australia submits that even if this is the applicable contract, it's terms would also operate to limit liability for damage to the goods during carriage.
2. That a contract was entered into between the parties is clearly evidenced. What is also clear is that the contract predates any purchase of the particular goods from Anfim, and predates the particular decision/agreement to ship those goods to Australia. However because it is a contract between the parties, and directly between Savino Australia and Espresso Company, it is important to closely examine its terms.
3. On page 35 of the larger court book (exhibit 1), is an e-mail from Savino Australia to Espresso Company dated 23 May 2017 (about 18 months before the delivery in issue). Attached to the e-mail are the terms of credit (page 36 exhibit 1/large court book) and general terms and conditions (pages 37-39) that form an agreement between the two parties.
4. Espresso Company says that this is the relevant contract. Savino Australia says that even if this is true, their claim is time barred and even if it was not time barred (which is denied) their claim is limited under the Savino Australia contract to AUD$2,700. Savino Australia's position was detailed in written submissions as follows:
5. Savino Australia's primary position is that the straight house bill of lading is evidence of the contract between each subcontractor and the shipper. It is submitted that Savino Australia's terms are similar in effect to Savino Italy's terms, the key terms being as follows.
6. Savino Australia submits that the idea of the umbrella agreement, which is common in shipping, is that each individual shipment can be organised over the phone or by e-mail without needing to ensure that all the terms are sent across and agreed every time.
7. Clause 2 (especially 2.1 and 2.5) sets out the umbrella nature of the agreement. In effect, the 23 May 2017 e-mail that contained the terms is set up as an offer, the acceptance of which is the placement of each delivery order. 2.1 Any instructions received by the Agent [Savino Australia] from the Customer for the supply of Services shall constitute acceptance of the terms and conditions contained herein.

The contract between FRF Couriers and Savino Australia

1. There was a contract between Savino Australia and FRF Couriers, for carriage. This contract is dated 30 January 2013 and states - "Customer application for credit and carriage of goods." It contains the terms and conditions of contract, clauses 1 through to 13.
2. Clause 6 provides: 6. Every exemption, limitation, condition… right, exemption from liability, defence and immunity… applicable to the carrier or to which the carrier is entitled to hereunder, shall also be available and extend to protect (a) all subcontractors; (b) every servant or agent of the carrier or of a subcontractor (c) every other person (other than the carrier) by whom the carriage or any part of the carriage is performed or undertaken; (d) all persons who are or maybe vicariously liable for the acts or omissions of any persons falling within subclauses (a)(b)(c) of this clause and for the purposes of this clause the carrier is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of all such persons and each of them shall to this extent be or be deemed to be parties to this contract".
3. Clause 8 notes that the carrier is authorised to deliver the goods at the address given to the carrier by the consignor for that purpose. The consignor is defined in the contract to be the person with whom the contract is made, that is Savino Australia. At clause 3 the contract states: "3. The consignor undertakes to indemnify the carrier in respect of any liability whatsoever and howsoever arising (including without limiting the foregoing from negligence or breach of contract or wilful act or default of the carrier or others) to any person (other than the consignor) who claims to have, who has or may hereafter have any interest in the goods or any part of the goods".
4. Clause 4 provides that subject only to clause 13: 4.… the goods are at the risk of the consignor and not the carrier, and the carrier shall not be responsible in tort or contract or bailment or otherwise for any, and the consequences of any, loss of or damage to or deterioration of goods or misdelivery or failure to deliver or delay in delivery of goods…… for any reason whatsoever (including without limiting the foregoing the negligence or breach of contract or wilful act or default of the carrier or others) and this clause shall apply to all, and the consequences of all, such loss of or damage to or deterioration of the goods or misdelivery or failure to deliver or delay in the delivery of goods beforementioned whether or not the same occurs in the course of performance by or on behalf of the carrier of the contract and/or the Consignoror in events which are foreseeable by them or eith of them or in events which could consititute a fundamental breach of the contract or a breach of a fundamental term of the contract."

The contract between FRF Couriers and Dotrans (and/or Mr Do)

1. There was a sub-contract between FRF Couriers and Dotrans (and/or Mr Do) - this is evidenced by the application for subcontract from Dotrans Pty Ltd, to FRF Couriers, dated 24 January 2018. By this sub-contract Mr Do/Dotrans was to perform the carriage on behalf of FRF Couriers. An issue for determination is whether the indemnity in the contract between FRF Couriers and Savino Australia also operates to indemnify Dotrans (and/or Mr Do) as subcontractor performing the carriage. The plaintiff's claims against the third and fourth defendant are in bailment and negligence. Another issue is whether the Himalaya clause operates to limit the liability of Dotrans/Mr Do.

Issues of negligence/recklessness

1. The plaintiff argues that there is no limitation of liability under the trading terms (in the Savino Australia/ Espresso Company contract of 2017) as the First Defendant acted recklessly; and submits: The First Defendant submits (at [41] and [46]) that if its trading terms apply, then its liability is limited to approximately AU$2,700.00. In its Reply, (Pleadings folder page 67 at [12.2]) the Plaintiff contends the limitation clause now relied upon by the First Defendant Is not available to it because it acted recklessly. That is so because clause 11.2 of the First Defendant's trading term s1 (Court Book page 37) provides: "The Agent shall not be entitled to the benefit of the limitation of liability provided for in clause 9 if it ls proved that the loss or damage resulted from an act or omission of the Agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. The photographs taken from the CCTV footage at the First Defendant's warehouse (at pages 66 to 68 of the Court Book) show that the cartons were marked fragile, a matter that is not in dispute. Ms Rea, on behalf of the First Defendant, contended that "the truck driver did not follow basic rules to secure the cargo." (Court Book page 5, first paragraph of the email) However, as previously submitted by the Plainti ff, 17 (At [21] of Its earlier submissions) it was the First Defendant's obligation to exercise reasonable care, skill and diligence by taking steps to ensure the Goods were properly secured on the truck at a time when the Goods were, by its own admission, under Its control. Further, the First Defendant had an obligation to instruct the truck driver as to the fragile nature of the Goods, the handling requirements and the standard of care to be taken in transporting the Goods, each of which it plainly failed to do In circumstances where the Goods were not properly secured and were damaged. The First Defendant's submission at [66] - "how anyone but a blind man could miss the warning labels is a mystery" - is not a sufficient explanation for the First Defendant's failings. In Sellers Fabrics Pty Limited v Hapag-Lloyd Ag [1998] NSWSC 646, the Supreme Court considered whether conduct was performed "recklessly and with knowledge that damage would result", and determined that recklessness goes beyond mere carelessness. The Court also held that was is open to a court to make an inference as to the requisite knowledge. In Goldman v Thai Airways Limited [1983} 1 WLR 1186, the court determined that the defendant's employees acted recklessly (at page 1293): "The Inference is fairly open, as we have already held, that such servants or agents, including Mr Johnson and perhaps others, observed the marks on the cargo which indicated that it be stored in a dry environment, observed the poor state of the plastic wrapping later reported In Tokyo, observed that it was raining, and that a typical Sydney summer thunderstorm was likely, and left the cargo in the open without taking the steps that they knew would be essential to protect that cargo if it should rain heavily. On that basis such servants and agents must also have known that such 'deplorably bad handling' of the cargo would probably result in damage to the cargo." So here, it Is open to the Court to find, as the Plaintiff has submitted, that the First Defendant failed to take steps to ensure the Goods were properly secured on the truck at a time when the Goods were, by its own admission, under its control. Further, the First Defendant had·an obligation to instruct the truck driver as to the fragile nature of the Goods, the handling requirements and the standard of care to be taken in transporting the Goods, each of which it plainly failed to do In circumstances where the Goods were not properly secured, such that the Goods were delivered to the Plaintiff in their damaged condition. The Court should be satisfied that the First Defendant was reckless, and that clause 11.2 denies it of the benefit of the limitation of liability contained in the Savino Australia Contract.

Bailment

1. The plaintiff also claims that each defendant is liable to the plaintiff under the law of bailment. The plaintiff characterises each of the defendants as bailees or sub-bailees/quai-bailees, and asserts breaches of the duty of bailment. Complex and detailed legal submissions were made by the plaintiff and the first and second defendants on these issues. All of those written legal submissions, and the detailed oral submissions made at the submissions hearing on 15 May 2020, have been considered by me and reference may be had to the transcript of proceedings and the written submissions on the court file. I will not summarise those submissions in these Reasons for decision but have carefully considered same. My findings on the bailment issues will be detailed below.

Issue 1 - which is the governing contact?

1. The parties arguments as to which is the applicable contract are set out above and have been carefully considered. In relation to the transport of the goods to Espresso's premises, the governing contract must be the contract which governs the transport of the particular goods. A related issue is the terms of the contract - whether it covered carriage of the goods between Mascot and Belrose.
2. I find that the contract between Savino Australia and Espresso (of May 2017) was an umbrella agreement which would apply to various subsequent shipments/transport of goods. It provided for credit payment terms in respect of freight and port fees etc (30 day payment terms). It was a relevant agreement between the parties.
3. It is worth observing that Savino Australia is acknowledged to be a wholly owned subsidiary of the global company. The evidence also indicates that Savino Australia contacted its "Italian agent" to arrange carriage.
4. The Bill of Lading, issued by Savino Italy, was a contract which specifically applied to carriage of the goods from Italy to Sydney. For reasons which follow, I find that the Bill of Lading was the contract which governed the shipment and carriage of these particular goods. The question to be resolved is whether its terms extended to the road carriage from Mascot to Belrose, or whether the Savino Australia contract applied to that part of the carriage. This must be resolved on the terms of the particular agreements.
5. Firstly, I will decide whether the Bill of lading applies to the carriage of the goods from Savino Australia warehouse in Mascot to the premises of Espresso Company in Belrose.
6. The Bill of Lading defines the following parties: "freight forwarder" - (FF) means Multimodal Transport operator, agent of the carrier….who issues this Bill of lading and is named on the face of it and does not assume liability for the performance of the Multimodal transport contract as a carrier".
7. "Carrier" includes the contracting carrier with whom the FF stipulates a contract of carriage and all carriers that carry or undertake the goods hereunder or perform any other service incidental to such carriage. "Merchant" means and includes the shipper, the consignor, the consignee, the holder of this BL, the receiver and the owner of the goods. "Consignor" means the person who concludes the Multimodal transport contract with the FF. "Consignee" means the person entitled to receive the goods from the FF. "Taken in charge" means that the goods have been handed over to and accepted for carriage by the FF at the place of receipt evidenced in this BL.

Issue 2 - What are the terms of the contract?

1. The plaintiff states that terms are implied in the contract and the defendant states that the express terms between the parties are clear. It needs to be decided whether there are implied terms as urged by the plaintiff. I am mindful of the plaintiff's submissions that such terms are implied in the Savino Australia/Espresso Company (contract of 2017). As detailed above I have found that the relevant contract is the Bill of Lading. However I consider it appropriate to consider and determine the plaintiff's argument in relation to implied terms.
2. There is clear authority indicating the matters which should be considered when deciding, where there are written contractual terms, whether there are also implied terms. Those are usefully summarised in the majority decision of the Privy Council (hearing an appeal from the Supreme Court of Victoria) in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283: Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a term in a contract which the parties have not thought fit to express. In their view, for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that "it goes without saying"; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.
3. The plaintiff states the implied terms were that the First Defendant, by itself, its servants or agents, would (a) exercise all reasonable skill, care and diligence in and when providing its Carriage Services (as defined in the statement of claim), and (b) that it would ensure that the Goods would be delivered to the Plaintiff in a saleable condition. The plaintiff submits that, in Carter on Contract (Lexis Nexis), Professor Carter writes that, provided the implication is not shown to be unjust or unreasonable, a term may be implied at common law if it is: (a) an established and normal incident of the contract; or (b) a necessary term, in the sense that, unless the term is implied, the enjoyment of rights conferred by the contract would be rendered nugatory or worthless or seriously undermined.

Issue 3 - Is there any breach of the contract by Savino Australia? Can Savino rely on the clauses limiting liability and/or time bar?

1. For the reasons already detailed there is no breach of implied terms asserted by the plaintiff to apply in the contract with Savino Australia. The goods were damaged while being transported by Mr Do/Dotrans from Mascot to Belrose. The terms of the contract provide for a time bar, and other terms limiting and excluding liability, and apply to any claim for damage to goods sustained during carriage. A number of the specific terms are set out above in these Reasons for Decision, and will be further discussed below.
2. One of the terms of the contract provides for a time bar beyond which proceedings cannot be commenced by the plaintiff. In this case there is no dispute that the plaintiff commenced proceedings outside of the applicable time bar. The argument of the plaintiff is that, due to communications between the parties, the defendants are estopped from relying on the time bar. The plaintiff submits: Estoppel 33. The First Defendant relies on clause 11 of the Savino Australia Contract to contend that the Plaintiff's claim is time barred. That clause requires a claim to be made "within nine months after delivery of the Goods" - that is, within nine months after 1 March 2018. 34. The chronology of the correspondence between the Plaintiff and the First Defendant in respect of the claim is set out above at paragraph 12 of these submissions. Following receipt of Ms Atkinson's email of 29 November 2018, the Plaintiff's solicitors proceeded on the basis that the First Defendant had accepted liability for the full amount claimed and would pay that amount in the coming days, and on that basis, Mr Winburn-Clarke "refrained from issuing proceedings against the First Defendant". 35. Yet on 12 December 2018, the solicitors for the First Defendant, Holding Redlich, wrote to the solicitors for the Plaintiff to advise: "If you have not commenced proceedings any action is now time barred …". 36. The Plaintiff contends that in the circumstances of this case, the First Defendant should be estopped from relying on that defence. The applicable principles were summarised be Brereton J in Moratic Pty Ltd v Gordon 13 BPR 24,713 (at [32]-[33]) as follows: "In equitable promissory estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of a legal relationship with the defendant; (2) thatthe defendant has induced or acquiesced in the plaintiff's adoption of that assumption; (3) that the plaintiff has acted in reliance on its assumption; (4) that the defendant knew or intended that the plaintiff so act; and (5) that it will occasion detriment to the plaintiff if the assumption is not fulfilled. In common law conventional estoppel, it is necessary for a plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant; (2) that the defendant has adopted the same assumption; (3) that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew or intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff. The similarities between the two doctrines should not be allowed to mask their differences, which reflect the disparate origins of promissory estoppel and conventional estoppel. Promissory estoppel, a creature of equity, is, typically, focussed on the conscience of the defendant: it operates when the defendant has induced or acquiesced in the adoption by the plaintiff of an assumption that the defendant will not assert its strict legal rights, so to prevent unconscionable (or unconscientious) insistence by the defendant on its strict legal rights. On the other hand, conventional estoppel, a creature of the common law, is focussed on the consensual basis of the parties' relationship: it operates when both parties have adopted the same assumption as the basis of their relationship, often without appreciating that any departure from the strict legal position is involved, so as to hold both parties to their common understanding. 37. Here, it was the common understanding of both the Plaintiff and the First Defendant that liability for the damaged Goods was not in issue, and that "compensation will take a few days to process". Further, acting on that basis, and on the First Defendant's representation, the Plaintiff refrained from commencing proceedings against the First Defendant. If the First Defendant is now permitted to depart from that position, and to rely on the time bar in its contract, then the Plaintiff will suffer serious detriment.

Findings of fact as to asserted representation/shared understanding, said to give rise to estoppel

1. The evidence of the communications between the parties is set out in detail above. The main points include that on 8 March 2018 Savino Australia acknowledged a claim for alleged damage goods arriving in Sydney on 1 March 2018. The letter states "we acknowledge receipt of your letter dated 8 March 2018 which will be processed in due course. We will notify you of all the updates as they are received and ask that you notify your insurance underwriters for immediate settlement ."
2. A letter of 9 March 2018 from Espresso Company, notes their intention to claim: "re-: notice of intent to claim against Savino Del Bene… Per HBL SDB04S030917"- [the letter itemises the claim and then says] "for completeness, we have notified our insurers of this claim. Notwithstanding this however, and as before, we suggest you notify your insurers of this intent to claim, and request that you provide us with their acknowledgement of this notice within the next seven days."
3. A letter from Savino Del Bene of 15 March 2018 to Espresso Company "without prejudice" states: "we acknowledge receipt of your letter dated 9 March 2018 which we process in due course. We will notify you of all updates as they are received and asked that you notify your insurance underwriters for immediate settlement".
4. On 24 April 2018 Espresso Company notified its insurer, NTI Ltd, of acknowledgement of authority/release in respect of the damages (refer Court book page 145). There is no evidence of any communications between Espresso Company and Savino Australia from March 2018 until October 2018. Nor is there evidence of correspondence between NTI and Savino Australia in this period. On 15 October 2018 correspondence was sent from the lawyers for Espresso Company and their insurers, NTI, to Savino Australia, noting that there had been nothing further heard since 15 March 2018, and confirming the claim and requesting a response within seven days. One month later, on 15 November 2018, SRB Legal on behalf of Espresso Company and their insurer NTI, wrote a further letter to Savino Australia noting there had been no response to their letter of 15 October 2018. The letter of 15 November 2018 states that they take the view that Savino is responsible for the damage. They advise that unless a response is heard within seven days, proceedings will be issued which may incur additional costs. Ms Atkinson of Savino Australia, by email of 16 November 2018, stated that she would follow through further with Danielle Rea, and come back.

Savino Australia contract with Espresso Company (2017 contract)

1. If I am wrong in my conclusion that the Bill of Lading is the applicable contract, then I would find that the 2017 contractual terms applied. Those terms included a time bar and a Himalaya clause in similar terms to the Bill of Lading. Clause 23 is the Himalaya clause (it is set out above in these Reasons for Decision). I find, as detailed above, and below, that the time bar clause (which operates to prevent proceedings after expiration of the time bar), and the liability limitation clauses, and the Himalaya clause, operated to restrict liability for damage to the goods, for both Savino Australia and subcontracted carriers. This is further explained below.

Bailment issues

1. Complex arguments were relied upon by all parties in the case in relation to bailment. The plaintiff relies upon Savino Australia being a bailee of the goods, and states that its obligations continue and were present and operative at the time that the goods were loaded on to the third/fourth defendant's truck at the warehouse of Savino Australia in Mascot. The plaintiff states that the second defendant, FRF Couriers, is liable in bailment as a sub-bailee. Clearly there was a contract between Savino Australia and FRS Couriers for carriage. Dotrans/Mr Do was a subcontractor of FRS Couriers. It is argued by the plaintiff that the third/fourth defendant were sub-bailees or quasi-bailees.
2. The plaintiff makes the following submissions in relation to breach of bailment duties by the first defendant: Bailment A bailment arises when one person (the bailee - here, the First Defendant) is voluntarily and knowingly in possession of the goods of another (the bailor - here, the Plaintiff). In Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, Windeyer J (at 238) defined a bailment as follows: "A bailment comes into existence upon a delivery of goods of one person, the bailor, into the possession of another person, the bailee, upon a promise, express or implied, that they will be re-delivered to the bailor or dealt with in a stipulated way." In The Laws of Australia, the authors state that this definition, while emphasising the requirement of possession, includes two further elements common to most bailments: "These are delivery of the goods to the bailee, and an express or implied promise by the bailee to return the goods to the bailor or deal with them as instructed. Although these elements are present in most standard bailments, they are no longer essential to the relation. The modern emphasis is on the voluntary nature of the possession gained. The mere fact of voluntary and knowing possession is sufficient for the possessor to constitute a bailee. Neither delivery to the bailee nor any specific undertaking by the bailee to hold on behalf of the bailor is necessary if the bailee consents to having possession. Such a party becomes a bailee regardless of the machinery by which his or her possession was acquired. Accordingly, a bailment can arise unilaterally and the consent of the owner or other person residually entitled to possession is not essential to bailment." They are admitted facts in this case that: the Goods were discharged from the ship at Sydney port on about 18 February 2018; the Goods were then carried by road to the First Defendant's warehouse in Mascot in the period between 18 February 2018 and 1 March 2018; and on 1 March 2018, the Goods were loaded on to a truck at the First Defendant's warehouse yard. The Court should be satisfied that the First Defendant came into possession of the Goods, that its possession was both voluntary and informed, and that from the moment of delivery of the Goods to its warehouse, the First Defendant was a bailee of the Goods. As a bailee under a bailment for reward, the First Defendant was under a duty to take reasonable care of the Goods, and to restore the Goods to the Plaintiff as bailor in the condition in which it had received them. Further, by accepting the goods, the First Defendant impliedly undertook to use reasonable care and skill to protect the Goods from third-party wrongdoing. The First Defendant is also required to answer for the acts or defaults of the Second Defendant, to whom it had delegated some of its responsibilities in relation to the Goods. As was acknowledged by the First Defendant in the correspondence referred to above, the Goods were not properly secured while they were being loaded onto the truck while it was parked on the First Defendant's property - that is, at a time when by its own admission the First Defendant had control of the Goods - which caused the damage and rendered the Goods "unsaleable" when they were delivered to the Plaintiff as bailor. In Ms Atkinson's own words, "the truck driver did not follow basic rules to secure the cargo, more so the cargo was clearly marked fragile, putting our reputation on the line." Once the Goods have been shown to have been lost or damaged in the First Defendant's possession as bailee, then the First Defendant is liable, without further proof from the Plaintiff as bailor, unless it can be affirmatively established by the First Defendant that it took proper care of the goods, or that any want of proper care on its part did not cause or contribute to the Plaintiff's loss. In The Laws of Australia, the authors state: "The bailee's burden is normally justified on the ground that, as the bailee had possession at the time of the adverse event, the circumstances surrounding that event are within his or her peculiar knowledge; it is therefore reasonable to require the bailee to exculpate himself or herself. A further reason is the need to ensure that bailees do not become complacent about their precautions or unduly dependent on insurance. The bailee's burden has been described as "the ultimate onus". Accordingly, if the bailor proves the contract and the non-delivery of the goods, or the delivery in a damaged condition of goods which were not damaged when bailed, and the bailee leaves it in doubt as to whether the non-delivery or the damage was his or her fault, the bailor should succeed." The Court should be satisfied that the First Defendant, as bailee of the Goods: failed to exercise reasonable care of the Goods when it allowed the Goods to be loaded on to the truck without "basic" precautions being taken to secure the Goods at a time when it had "control" of the Goods; failed to deliver up the Goods to the Plaintiff in the same condition that they were bailed to the First Defendant. In Ms Atkinson's email of 2 March 2018, she said that she had viewed CCTV footage which showed that "the cargo was ok when [it] left our warehouse." However, it is not disputed that when the Goods were delivered to the Plaintiff, they were "severely damaged and/or in a condition unfit for sale"; and failed to transport the Goods - or to ensure their transport - in a manner that was fit and proper for the purpose of the contract. As a result of the First Defendant's breaches of its contract of bailment, the Plaintiff has suffered the loss and damage that is the subject of this claim.

The Hague Visby Rules

1. I note the plaintiff has also argued that the Hague Visby Rules apply (refer plaintiff's submissions in reply and also oral submissions of 15 May 2020). I am satisfied that the authorities establish that the Hague Visby Rules, in general, apply to ships rail, and do not apply to damages sustained by land carriage after the goods are discharged from the ship. Accordingly the Hague Visby rules would have no application to the damages caused to the goods when transported from Mascot to Belrose on the evidence in the current matter. A relevant authority is the decision Kamil Export (Aust) Pty Ltd v NPL (Australia) Pty Ltd [1996] 1 VR 538 ("Kamil"), a decision of the Victorian Court of Appeal, which held that the Hague Rules only applied to the carriage of goods by sea, or when the goods passed from ship's rail to ship's rail. The Hague Rules did not apply to the parts of the contract where goods were carried after discharge from the ship. In Kamil Export (Aust) Pty Ltd v NPL (Australia) Pty Ltd [1996] 1 VR 538, Marks J, with whom Fullager J agreed, stated, at p554: Chellaram was a time bar case. Kirby P was of the opinion that the time bar in the Hague Rules applied to a loss of goods after discharge. It is not clear however that this was the view of other members of the court. Gleeson CJ, with whom Samuels AJ agreed, rested his decision on the operation of cl10(2) being independent of the Hague Rules and it was this opinion which was followed by the court. Gleeson CJ found it unnecessary to decide the reach of Art III R6. The Hague Rules are expressed to apply only to the sea-carriage of the goods, that is, to the period after the goods pass the ship's rail on loading to the time they pass it on unloading. Thus the expression "from ship's rail to ship's rail". CL1 of the bill incorporated the Hague Rules (which comprise the schedule to the Sea Carriage of Goods Act 1924 (Cth)) into the contract of carriage. The Hague Rules are expressed to apply only to the sea-carriage of the goods, that is, to the period after the goods pass the ship's rail on loading to the time they pass it on unloading. Thus the expression "from ship's rail to ship's rail". CL1 of the bill incorporated the Hague Rules (which comprise the schedule to the Sea Carriage of Goods Act 1924 (Cth)) into the contract of carriage. Article I of the Hague Rules defines "carriage of goods" to cover the period "from the time when the goods are loaded on to the time when they are discharged from the ship". A "contract of carriage" is defined to apply only to contracts of carriage covered by a Bill of Lading or any similar document of title, INSOFAR AS SUCH DOCUMENT RELATES TO THE CARRIAGE OF GOODS BY SEA ... (Emphasis added.) Article II is subtitled "Risks" and provides: Subject to the provisions of Article VI, under every contract of carriage of goods by sea, the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities, and entitled to the rights and immunities hereinafter set forth. Under Art III r6: ... the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. It was submitted on behalf of the appellant that the time bar in Art III r6 does not apply to loss and damage which occurs, as it did in the present cases, after the goods have been discharged from the ship. The weight of authority favours the Hague Rules being confined in their application to the contract of carriage by sea, that is, during the time between which the goods pass from "ship's rail to ship's rail".

Negligence/Recklessness claims

1. I note the terms of the Bill of Lading, given the findings made above, operate to limit liability in negligence. The time bar also applies to preclude proceedings in negligence once the time bar elapsed, as it has in this case. I am satisfied given that the time bar clause applies to the benefit of all defendants, as detailed above, that the plaintiff cannot proceed with the negligence claim. As such I do not need to determine all the arguments in relation to the Civil Liability Act and negligence/recklessness.
2. For completeness I note that if the 2017 Savino Australia contract was the applicable contract, the liability limitation clauses may not apply to a finding of damage due to recklessness, however the time bar clause would continue to have application. Without determining whether the plaintiff's claim of recklessness would succeed, I note my finding that the time bar in the 2017 contract, coupled with the clause 23 Himalaya clause, would also operate to prevent the plaintiff's claim, as it is outside the nine month period. Given the findings I have made in relation to the time bar, then I do not need to further consider and determine the recklessness issue.

Can FRF rely on the indemnity in its contract with Savino?

1. Given the clear terms of the indemnity in the FRF Couriers - Savino Australia contract (set out above) then I find that FRF Couriers could rely on the indemnity clause, so that Savino Australia would indemnify FRF Couriers for any damages caused to the goods by FRF Couriers or it's subcontractors (in this case Dotrans/Mr Do). The words of the indemnity clause are clear and unambiguous and they would entitle FRF Couriers to be indemnified by Savino Australia. I will not spend further time on this issue given the clear words of the contractual term of indemnity. I make this finding for the purposes of determining the cross-claim. Given my findings that there is no liability, because of the Himalaya clauses, for the second defendant, FRF Couriers, and also the third/fourth defendant, then the question of the indemnity does not arise. However if I had found FRF Couriers liable for damage then I make clear that the second defendant would have succeeded on its cross claim on the basis of the indemnity clause.

Is there title in the goods in the plaintiff?

1. It is concerning that in litigation seeking an award of damages, which requires proof of loss, that the plaintiff has not provided evidence to prove that it paid the invoice issued by Anfim. This is a concern given the terms on the invoice document, that ownership remains Anfim's until payment is received. I also note that the 2017 contract provides for 30 day payment terms, and indeed the invoice issued by Savino Australia, of 12 February 2018, gives a payment date of mid-March 2018, which is after the date of the loss claimed. No evidence has been led that any of these invoices were paid. I suspect this is an oversight in the evidence of the plaintiff. I am asked to draw the inference from the invoice and all the communications asserting the amount lost, that this loss was actually occasioned. Given the findings of fact I have made in this matter, I have decided not to make a finding that loss was not made out by the plaintiff, and to accept the inference as to the invoice having been paid.

Is there an account stated?

1. This is a case where the plaintiff asserts an amount in damages, being damage to goods, and the alleged damages claim was investigated in a survey report by NTI, the plaintiff's insurer.
2. The plaintiff submits that there is an account stated, submitting that the debt was admitted. The plaintiff submits: Account stated In Court Forms, Precedents & Pleadings NSW (Butterworths), the authors make the following comments about an action on an account stated: "An action upon accounts stated lies when a defendant absolutely acknowledges to a plaintiff that a debt of a certain sum is due and payable by the defendant to the plaintiff. An account stated may arise in two ways. First, the plaintiff and the defendant may, through their dealings with each other, have claims against each other. In such a case it is open to the parties to agree to set their accounts off against each other leaving one party to pay the balance to the other. An arrangement of that type is in the nature of a compromise in which the mutual promises to go through the set-off process and abide by the result constitute a fresh consideration. Accordingly, the result of the set-off process is binding on the parties: see Precedent 380.80 - Claim on account stated where the plaintiff and the defendant have agreed to set off their demands against each other. In the absence of such an arrangement, an acknowledgment by a defendant that a sum is owing to the plaintiff will amount to a promise not supported by consideration. In this second type of account stated, the acknowledgment is not regarded as absolutely binding but is regarded as sufficient to support an action for accounts stated in which the acknowledgment is treated as prima facie evidence of indebtedness. It is open to a defendant in such a case to contest the account stated. The defendant could assert, for example, that the account was stated in respect of a debt void for illegality or one for which the consideration had failed. However, it seems that where the relevant debt arises under a contract which is merely unenforceable due to a failure to comply with a formal statutory requirement, such as a Statute of Frauds provision, an account stated will lie in respect of such debt. This second type of account stated is often pleaded as an alternative count to an action founded on a contract." The current state of the law in respect of a claim for money due on an account stated was the subject of consideration by the NSW Supreme Court in Webster v Strang [2018] NSWSC 495. In that decision, Kunc J made the following observations (at [245] to [246]) in respect of that form of an action for money due on an account stated where an admission is so framed as to be merely an acknowledgement of indebtedness, in which case although it supplies evidence of the debt, that evidence may be rebutted by proof that no debt in fact existed: "In the case of this form of account stated, the first requirement is the existence of an admission or acknowledgement by A to B that A owes a certain amount of money to B. The specific question which arose for determination in Lewis v Wilson was whether that admission needed to be absolute and unqualified. It was in that context that Sperling J reviewed the authorities and held that a "bare" admission was sufficient, even if qualified by a condition or reservation, provided that it was an admission or acknowledgement of a sum certain (at 232). The consequence of the existence of a "mere admission of liability" is to give rise to a cause of action in B against A for the admitted amount: Drury v Dulhunty (1921) 21 SR (NSW) 514 at 520 per Ferguson J. Here, the Acknowledgement plainly satisfies the requirements of an acknowledgement of indebtedness for a sum certain. Secondly, once B has established that an admission or acknowledgement has been made, the burden of proof is then cast upon A to rebut the facts on which the admission is predicated: see Lewis v Wilson at 233; see also Burmester v Hogarth (1843) 11 M & W 97 at 101; 152 ER 730, per Parke B; Camillo Tank Steamship Co Ltd v Alexandria Engineering Works (1921) 38 TLR 134 at 141, per Viscount Finlay, 143, per Viscount Cave; Lockyer v Macready [1965] NSWR 801 at 805 per Brereton J; (1965) 66 SR (NSW) 369. It follows from my factual findings that the Acknowledgement has not been rebutted by proof that no debt in fact existed. Accordingly, I find that the defendants' claim in debt on an account stated succeeds."

Judgment

1. For all the reasons set out above, I find that the plaintiff has not proved, on the balance of probabilities, on the evidence, it's claim. The Statement of Claim is accordingly dismissed.
2. Given the findings I have made on the Statement of Claim I do not need to make an order in relation to the indemnity claimed in the Cross Claim. However, for completeness I make the following order on the Cross Claim - the cross claimant succeeds against the cross-defendant in establishing the indemnity claimed in the cross-claim, but given the orders made in relation to the Statement of Claim, no further order on the cross claim is required.

ORDERS 1. The Statement of Claim is dismissed. 2. The cross-claimant succeeds against the cross-defendant in establishing the indemnity claimed in the Cross Claim, but given the orders made in relation to the Statement of Claim, no further order on the Cross Claim is required.

1. I will now hear from the parties on the issue of costs. Magistrate Huntsman 3 July 2020 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: 15 August 2022