Contract to restore 1967 Shelby Mustang Fastback motor vehicle and to convert it to a replica 'Eleanor' as featured in the 1974 movie "Gone in 60 Seconds" - whether terms of parties' oral agreement included additional labour charges and storage fees above the contract price - bailed goods stolen from workshop whilst in bailee's possession - whether bailee breached the duty of care to keep goods safe - burden of proof on bailee to prove security adequate - burden not discharged - valuation of stolen motor vehicle and extent of owner's loss

Pickeriti Investments Pty Ltd ACN: 100 951 844 and Karl Andrew Nigel Pickford

23 and 24 May 2019; 14, 15 and 16 October 2019; and 17 February 2020

Miller v Pickeriti Investments Pty Ltd (Civil Claims) [2020] VCAT 358

1. The Tribunal orders that Pickeriti Investments Pty Ltd ACN: 100 951 844 and Karl Andrew Nigel Pickford must pay Francis Miller the sum of $70,000.00.
2. Any party may apply for legal costs and reimbursement of the Tribunal application fees by filing an application supported by submissions in writing by 1 May 2020, otherwise there will be no order for costs or fees.

1. Proceedings C6760/2017 and C2778/2018 are a claim and counterclaim arising from the partial restoration of Mr Francis Miller's 1967 Ford Mustang GT500 Fastback ('motor vehicle') and the subsequent theft of this vehicle from the workshop belonging to Pickeriti Investments Pty Ltd (ACN: 100 951 844) trading as Pickford Mustangs ('Pickford Mustangs') and Karl Andrew Nigel Pickford.
2. In proceeding C6760/2017 Mr Miller claims damages of $140,000.00 for the loss of his motor vehicle. In proceeding C2778/2018 Pickford Mustangs and Mr Pickford claim $30,111.00 in unpaid labour charges and storage fees. For ease of reference, where I have referred to Pickford Mustangs and Mr Pickford as having acted jointly, I will refer to them as 'the respondents'.
3. The proceedings first came before me on 23 May 2019 and were heard together on 23 and 24 May 2019, 14, 15 and 16 October 2019 and 17 February 2020. Mr Miller, his spouse, Mrs Frances Elizabeth Miller, his daughter, Ms Caroline Miller, and his granddaughter, Ms Tonyalee Boxall gave oral evidence for this purpose. I also heard from Mr Brett Ising, an automotive mechanic, and Mr Graeme Cuthbert, an automotive mechanic and consultant. Mr Miller was represented throughout the course of the proceedings by his solicitors and Counsel. Mr Pickford, Mr Billy Diacoyannis and Mr Bruce Clayton gave evidence for the respondents. Notably, the respondents were represented by their solicitors until 14 February 2020, after which they were represented by Mr Pickford.
4. In determining the parties' respective claims, I have reviewed their documentary evidence[1] together with the oral evidence from their witnesses. After the parties had completed giving their evidence at the hearing, I reserved my decision.

1. The parties agreed that Mr Miller first met Mr Pickford through his daughter, Caroline, in or around 2011/12, when the latter expressed interest in restoring her 1965 Mustang convertible and engaged Pickford Mustangs for this purpose. By 2015, Mr Miller had decided that he, too, would like to restore his motor vehicle and, if possible, convert it to a replica of the 'Eleanor' that featured in the 1974 film "Gone in 60 Seconds."

1. As a result, Mr Miller approached the respondents and the parties agreed that Pickford Mustangs would undertake this work for $15,000.00, with Mr Miller purchasing any parts that might be required. Mr Miller then delivered the motor vehicle to Pickford Mustangs in Moorabbin ('the workshop/premises') and work commenced in or about early 2016. There was no dispute that the motor vehicle was fully painted at the time of delivery or that Pickford Mustangs was to fit out the interior of the vehicle, reassemble the running gear consisting of the transmission, engine, driveshaft, and brakes, as well as converting it into an Eleanor replica that could be registered ('the restoration work').
2. However, by July 2017 a dispute arose over the progress of the restoration work, whether the contract price was inclusive of GST[2], and whether labour charges and daily storage fees were due, which led to a breakdown of the parties' relationship. As a result, on 20 October 2017 Mr Miller commenced proceeding C6760/2017, initially seeking the return of the motor vehicle and its parts. Unfortunately, on 17 July 2018 Mr Pickford notified the police and Mr Miller that the motor vehicle had been stolen from the respondents' premises. As the police were unable to recover the motor vehicle, Mr Miller lodged a claim with his insurer, Shannons, for which he received a payout of $70,000.00.
3. To understand the issues and the protracted nature of both proceedings, it is useful to set out a summary of the parties' conduct, including the degree of non-compliance with Tribunal orders that resulted in unnecessary delay.
4. Initially, a directions hearing was first held on 19 March 2018 in proceeding C6760/2017, at which time the respondents were ordered to file their defence and any counterclaim by 13 April 2018. Although the respondents filed their points of defence on 13 April 2018, they lodged their counterclaim five days late, which heralded a pattern of lateness and non-compliance by them.
5. The combined proceedings were then listed for a compulsory conference on 28 May 2018 but did not settle. As a result, the parties were ordered to exchange the documents they intended to rely on at the hearing by 2 July 2018, and the proceedings were listed for hearing on 2 August 2018.
6. On 30 July 2018 the Tribunal rescheduled that hearing to 8 October 2018 because the respondents had filed signed minutes of proposed consent orders to this effect. On 4 October 2018 the hearing was rescheduled to 5 December 2018 because Mr Miller filed further minutes of proposed consent orders to this effect.

1. However, on 29 and 30 November 2018 Mr Miller requested another adjournment because the respondents had refused to provide him with a copy of the police report regarding the theft of his motor vehicle and he had also changed his legal representatives. Further, on 30 November 2018 Mr Miller filed minutes of proposed consent orders regarding the requested adjournment and, on 12 December 2018, the hearing was rescheduled to 12 and 13 March 2019. The Tribunal also ordered Mr Miller to file amended points of claim by 30 January 2019 and the respondents to file their amended counterclaim and defence by 14 February 2019. Whilst Mr Miller complied with these orders, the respondents did not do so until 7 March 2019, some five calendar and three business days before the scheduled hearing.
2. On 12 March 2019 the respondents requested an urgent adjournment on the basis that their legal representative had suffered a serious injury and was unable to represent them at the hearing. In the circumstances, the Tribunal agreed to adjourn the hearing to 23 May 2019, but ordered the respondents to pay Mr Miller's legal costs for 12 March 2019.
3. On 23 May 2019 the respondents requested another adjournment on the basis that Victoria Police had not confirmed that it had concluded its investigation into the theft of Mr Miller's motor vehicle and the relevant police officer was on leave until 27 May 2019. In addition, the respondents advised that Mr Miller had failed to provide them with a copy of the Shannons insurance payout they had requested. The respondents further noted that there were discrepancies between Mr Miller's points of claim and Mr Cuthbert's expert report ('the original Cuthbert report')[3] regarding the vehicle identification number ('VIN')[4] for the motor vehicle. As a result, the respondents submitted that they needed time to engage their own expert.
4. On 23 May 2019 I refused the requested adjournment for the following reasons. I noted that, in circumstances where the stolen motor vehicle had not been recovered, the police report was likely to be equivocal. I was also satisfied that the respondents could give evidence regarding the security arrangements at their premises without this report. In addition, I observed that Mr Miller had provided the respondents a copy of Mr Cuthbert's expert report on 15 April 2019. As a result, I was satisfied that the respondents had had five weeks in which to arrange their own expert report in reply. Correspondingly, I was of the view that Mr Miller could provide a copy of the insurance payout to the respondents before the hearing resumed on 24 May 2019 and I made orders to that effect. Accordingly, I was not satisfied that there were sufficient grounds to justify the requested adjournment.

1. However, at the commencement of the hearing on 24 May 2019, Mr Miller provided the respondents and the Tribunal with a large bundle of looseleaf, unorganised and unpaginated documents, which he advised comprised the documents he wished to rely on at the hearing. Given the volume of documents involved, the respondents requested the adjournment of the hearing to provide instructions to, and receive advice from, their legal representative.
2. In the interests of procedural fairness, I granted this application explaining to Mr Miller that the respondents needed to reasonably know which documents he wished to rely on to assess whether they should defend the claim or attempt to settle. Accordingly, the hearing was adjourned to October 2019. I also made orders for the filing of documents, including expert reports and the preparation of a Tribunal book.
3. The hearing resumed on 14 October 2019. Notably, prior to the actual commencement of the hearing, the Tribunal received an email from Victoria Police that Mr Pickford had filed a fraud complaint regarding a statement made by a Mr Sohontis, which was still under investigation. Given this complaint, the respondents requested an adjournment at the commencement of the hearing on the basis that they believed that this investigation potentially affected the valuation of Mr Miller's motor vehicle. Mr Miller objected as he was not seeking to rely on any statement from a Mr Sohontis. He also argued that any statement made by this person was irrelevant to the proceedings. In addition, Mr Miller complained that the respondents had failed to file any documents for the purposes of the Tribunal book, including the police report he had requested. Mr Miller argued that this behaviour, including the repeated requests for adjournments, had caused him considerable prejudice.
4. Given this, I asked the respondents to explain their non-compliance with the Tribunal orders dated 24 May 2019, but they were unable to do so. In the circumstances, I was not satisfied that the respondents had provided sufficient grounds to adjourn the hearing once again. Accordingly, the hearing proceeded with Mr Miller and his witnesses giving their evidence on 14 and 15 October 2019.
5. However, proceedings came to another halt on 16 October 2019 when the respondents advised that they had only received their expert valuation from Mr David Palmer ('the Palmer report') at 2:00am that morning. The respondents stated that the Palmer report was late, in part, because they had delayed their request for an expert report until 19 June 2019 in the hope that they would be able to provide their expert an updated copy of the Cuthbert report ('the supplementary Cuthbert report').[5] However, the respondents

explained that they only received the supplementary Cuthbert report on 21 June 2019, which adversely affected their ability to comply with the Tribunal orders dated 24 May 2019. In addition, Mr Pickford gave evidence that he had made several requests to Mr Palmer for his report before 14 October 2019, but to no avail. Consequently, he argued that the respondents were not responsible for the late provision of the Palmer report to Mr Miller and the Tribunal.

1. Against this backdrop the respondents' representative referred to the Tribunal's obligations under section 97 of the Victorian Civil and Administrative Tribunal Act 1998 ('the Act') to support their application for leave to tender the Palmer report as evidence for the respondents. Mr Miller objected to this because he had not seen the Palmer report before 16 October 2019 and, thus, he had not had an opportunity to consult with Mr Cuthbert about its contents. Mr Miller further argued that the late tender of this evidence was prejudicial because he might have to recall Mr Cuthbert as a witness at additional cost and, in effect, he might be forced to recommence his case in full.
2. On this occasion and having regard to the requirements of section 97 of the Act, I accepted at face value Mr Pickford's explanation for the lateness of the Palmer report. I also observed that the Palmer report was relevant to the quantum of Mr Miller's loss. In addition, I did not accept that the evidence Mr Cuthbert had given on this matter on 14 October 2019 was entirely wasted, or that there would be a need to start the proceedings afresh. Instead, I observed that arrangements could be put in place to ensure that what followed delivered procedural fairness to all parties. Consequently, I granted leave for the Palmer report to be tendered as evidence for the respondents.
3. In doing so, I acknowledged that the late provision of this evidence was frustrating for Mr Miller, but that this could be considered as regards legal costs. As a result, I agreed to adjourn the hearing until 17 February 2020 to allow Mr Miller an adequate opportunity to review and respond to the Palmer report, and for the respondents to arrange for Mr Palmer to give evidence at the hearing. In addition, I ordered the respondents to pay Mr Miller's legal costs of the day fixed at $4,676.00. However, I reserved on the question of any other consequential costs arising from this adjournment.
4. Further, and by consent, I ordered a conclave of experts to be held on 10 January 2020 so that the parties' experts could provide their recommendations to the Tribunal as to the appropriate valuation of Mr Miller's stolen motor vehicle.
5. However, on 10 January 2020 the experts were unable to provide a joint expert report due to issues with the photographic evidence they had each relied on to support their respective findings. As the motor vehicle had been stolen in July 2018, each expert witness necessarily had to rely on the photographs supplied to them by the parties. During the conclave it emerged that Mr Palmer had been provided with additional photographs that had not been made available to Mr Cuthbert. In addition, the original Cuthbert report[6] relied on two colour photographs, whereas Mr Palmer's report[7] referred to poor quality monochrome reproductions of those coloured photographs. As a result, the parties were ordered to attend a directions hearing on 28 January 2020, at which time they would be heard on the question as to why they should not serve on each other a 'List of Documents' verified by affidavit.
6. On 28 January 2020 Mr Miller and his representative attended the directions hearing, but there was no appearance by or on behalf of the respondents. Given that Mr Miller had filed a Tribunal book in accordance with the Tribunal orders dated 24 May 2019, and having received an undertaking from him that he would add Mr Cuthbert's supplementary report[8] to the Tribunal book, I decided that there was no need for Mr Miller to file and serve a 'List of Documents' verified by affidavit. However, I ordered the respondents to do so by 10 February 2020. I also ordered them to file and serve all the documents referred to in that 'List of Documents' by the same date. Notwithstanding this order, the respondents failed to do so by 10 February 2020.
7. On Friday 14 February 2020 the respondents' representative emailed the Tribunal that he no longer held instructions to act for the respondents in both proceedings. He also indicated that all future correspondence should be sent directly to Mr Pickford.
8. At the resumption of the hearing on Monday 17 February 2020 Mr Pickford advised that he had only learned that the respondents' representative was unable to attend the hearing due to serious illness at 4:00pm on Sunday 16 February 2020. As a result, Mr Pickford requested an adjournment of the hearing so that the respondents could obtain fresh legal representation.
9. In response I noted that the respondents' representative had indicated to the Tribunal on 14 February 2020 that they no longer had instructions to act for them, not that he was unable to appear due to illness. I also observed that this contrasted sharply with the approach their representative had taken on 12 March 2019, at which time he had readily indicated that there were serious medical reasons for his inability to attend the hearing to represent the respondents.
10. Mr Pickford then advised that he required the adjournment because his expert, Mr Palmer, was unable to attend to give evidence. Mr Pickford claimed that his former representative had failed to inform Mr Palmer of the need to attend the hearing on 17 February 2020 for this purpose. I remarked

that I did not accept this explanation because Mr Pickford was present at the hearing on 16 October 2019 when it was adjourned to 17 February 2020, in part, so that the respondents could arrange for Mr Palmer to be present to give evidence.

1. At that point, Mr Pickford advised that he had another expert witness he proposed to call, a Mr Banks, who would give evidence on the value of the motor vehicle at the time it was stolen in July 2018. Mr Miller objected to this, arguing that it was highly prejudicial in circumstances where the respondents had not filed and served any expert report from Mr Banks, and had not notified Mr Miller that they would call this expert witness.
2. I agreed. I noted that despite several opportunities to file and serve expert reports during the proceedings, the respondents had failed to comply with orders to do so and within the time limits set. In particular, the respondents' only expert report was the Palmer report, and this was filed without notice four and a half months after it was due and after Mr Cuthbert had given his oral evidence. In addition, the respondents had also failed to attend the directions hearing on 28 January 2020, and to comply with the orders made on that date. More significantly, Mr Palmer had failed to attend the hearing on 17 February 2020 in circumstances where the hearing had been adjourned, in part, for this purpose.
3. Mr Pickford responded that he was not aware of the orders made on 10 or 28 January 2020 because his representative had not advised him of them. He added that he felt he had been poorly represented by his representative throughout the proceedings. I noted that the respondents were legally represented until 14 February 2020 and that any complaint they might have about the quality of their legal representation was a matter for them to take up elsewhere.
4. I further observed that the Tribunal's obligations under the Act[9] required it to allow a party a reasonable opportunity to call or give evidence, but that there was no requirement for the Tribunal to ensure that a party had every opportunity, or took the "best advantage" of that opportunity, to do so.[10] Importantly, section 94 of the Act provides that Schedule 3 applies to expert witnesses and expert evidence. Clause 2 of Schedule 3 provides that the Tribunal may give any directions under section 80 that it considers

appropriate in relation to expert evidence in a proceeding, including that expert evidence may not be adduced on specified issues if this is necessary for the expeditious or fair hearing and determination of a proceeding. Given this, I observed that the Tribunal had made more than one order about the provision of expert evidence and documents in these proceedings, and that the respondents had largely failed to comply with these orders, despite being legally represented, until 14 February 2020.

1. In addition, I pointed out that the hearing was adjourned at the respondents' request on 16 October 2019 to facilitate their ability to present expert evidence from Mr Palmer. Accordingly, I was not satisfied that it was fair to Mr Miller to allow the respondents yet another opportunity to adjourn the hearing in circumstances where they had failed to make arrangements for Mr Palmer to attend to give evidence. For the same reason, I was also not satisfied that it was fair to Mr Miller to allow the respondents to call an alternative expert witness, being Mr Banks, in circumstances where they had failed to provide any expert report from this individual, or to notify Mr Miller before 17 February 2020 that they wished to do so. Significantly, this had occurred despite several Tribunal orders requiring the respondents to do so, including as recently as 28 January 2020.
2. I thus observed that the respondents had been given ample time since 24 May 2019, and particularly since the adjournment of the hearing on 16 October 2019, in which to organise any expert evidence they required to support their case. Yet, they had failed to do so. Consequently, having regard to the overall manner in which the respondents had conducted themselves throughout the proceedings, I was not satisfied that there were sufficient grounds on 17 February 2020 to justify another adjournment of the hearing, or to allow the respondents to call Mr Banks as an expert witness and I refused the respondents' request to this effect. As a result, Mr Pickford represented himself and Pickford Mustangs on this date.
3. As set out above, the respondents failed to comply with a series of Tribunal orders regarding the exchange of documents between the parties. This included the orders dated 28 January 2020 that required them to provide a list of documents that they wished to rely on at the hearing, and to file those documents with the Tribunal and to send them to Mr Miller by 10 February 2020. Notwithstanding this order, on 17 February 2020 Mr Pickford sought to tender into evidence several photographs of the security system at the respondents' premises as well as a newspaper article regarding Mr Miller's public pleas for the return of his motor vehicle. Mr Miller objected to this at the hearing.
4. Accordingly, I briefly adjourned the hearing to allow Mr Miller an opportunity to examine and make submissions on this evidence. Mr Miller subsequently submitted that this evidence added little to the issues before the Tribunal. Given this and the nature of the photographs and newspaper article

before me, I granted the respondents leave to tender this material into evidence noting that, ultimately, it would be a question of appropriate weight.

1. Section 182(1) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) confers jurisdiction on the Tribunal to hear and determine a "consumer and trader dispute", which is defined to include a dispute or claim between a purchaser of services and supplier of services, as well as a dispute or claim "in negligence, nuisance or trespass that relates to the supply or possible supply of goods or services." This legislation also makes the Australian Consumer Law[11] a law of Victoria.[12]
2. The parties accepted the Tribunal had jurisdiction to hear their dispute because the transaction between them was either an agreement for the provision of services, or a claim for negligence relating to the supply of such services.
3. Although Mr Miller initially sought orders for the return of his motor vehicle and its parts, as well as a refund for the money he had paid, he has since claimed damages for the losses that flowed from the theft of this vehicle. On the other hand, the respondents sought orders requiring Mr Miller to pay for outstanding labour fees and storage charges.
4. As a result, the issues for determination in this dispute are:

1. Did the terms of the parties' agreement include the payment of additional fees to the respondents for labour and storage? 2. Did the respondents supply parts to Mr Miller for which he has not paid?

1. Did the respondents take reasonable steps to prevent the theft of Mr Miller's motor vehicle from their premises?

1. If not, what was the loss Mr Miller suffered, and did he mitigate his loss?
2. Accordingly, the submissions and evidence regarding these matters are discussed as follows.

THE COUNTERCLAIM FOR UNPAID LABOUR, PARTS AND STORAGE FEES:

1. The parties agreed that Mr Miller was the owner of the motor vehicle and that Mr Pickford was the director of Pickford Mustangs which carried on a business as motor vehicle repairers and restorers. Although the parties differed as to exactly when they entered into their oral agreement, there was no dispute that sometime during late 2015 to early 2016 they had entered into an oral agreement for the respondents to carry out restoration work on Mr Miller's motor vehicle for $15,000.00 plus parts. Notably, the respondents have not at any time claimed that Mr Miller failed to pay them the required $15,000.00.
2. Thus, on the evidence before me, I am satisfied that in or about 2015/16 the parties entered into an oral agreement for the respondents to restore[13] and convert Mr Miller's motor vehicle to an Eleanor replica for $15,000.00. I also find that Mr Miller paid the respondents $15,000.00 for this work, which the respondents had not completed by July 2018.
3. Notwithstanding, the respondents argued that the parties had also agreed that the respondents would source and supply any parts required, and that Mr Miller would pay for these parts upon receipt of the respondents' invoice. The respondents also claimed that Mr Miller had agreed to pay an hourly labour charge and daily storage fees, especially after he allegedly instructed them to cease work on his motor vehicle and to focus on his daughter's car in October 2016.[14] However, Mr Miller refused to pay the invoice the respondents had issued to him on 31 July 2017.[15]
4. Accordingly, the respondents claimed that the following amounts remain outstanding:

560 days vehicle storage at $22.00 per day $12,320.00

It is not in dispute that the respondents subsequently issued a revised invoice on 7 August 2017 for $17,835.00 that removed the GST component.[16]

1. In their counterclaim the respondents further claimed that Mr Miller was liable for 802 days' storage, commencing from when the motor vehicle was first delivered to them, which also included the 559 days that had passed since they were instructed to cease work in October 2016.[17]
2. Mr Miller denied that any of the items claimed in either of these invoices, or the respondents' counterclaim, constituted terms of the parties' oral agreement.

1. In assessing the parties' competing accounts, I have had regard to the consistency of the parties' respective claims and evidence as a whole, as well as their overall demeanour and conduct throughout the proceedings. In doing so, I have also considered and made some allowance for the fact that Mr Pickford was self-represented on the final day of the hearing in these proceedings.

The claim for $3,800.00 in additional labour charges:

1. There are several discrepancies in the evidence that detract from the respondents' claim that the parties had agreed to an hourly rate of $110.00[18] for labour over and above the contract price of $15,000.00 for the restoration work.
2. Notably, the only documentary evidence the respondents were able to produce to support this claim consisted of the invoices they had issued to Mr Miller on 31 July 2017 and 7 August 2017. They were unable to provide any other contemporaneous document that confirmed that the parties had agreed to this fee in addition to the contract price of $15,000.00 for the restoration work. Similarly, the respondents did not produce any photographs that tracked the progress of the restoration work undertaken by them during 2016/2017. However, the respondents stated that this was because all the documents relating to Mr Miller's motor vehicle were stolen in July 2018 along with his motor vehicle.
3. In assessing what weight to give to this explanation, I have considered the context of the respondents' general business operations as restorers of Mustangs, as well as their conduct during these proceedings.
4. Mr Pickford gave that evidence that the respondents' business operations meant that they might be working on 6 - 10 motor vehicles in the workshop at any given time. Mr Pickford added that, whilst he was unable to recall the exact number, he believed that there were approximately 7 - 8 motor vehicles at the premises at the time of the theft in July 2018. He also confirmed that Mr Miller's motor vehicle was the only car stolen. Mr Pickford further acknowledged that it was strange that, given the number of potentially quite valuable motor vehicles undergoing restoration work in the respondents' workshop in July 2018, the thieves would only target Mr Miller's motor vehicle, its parts and related documentation.
5. Accordingly, I do not find it plausible that thieves would target a workshop that restores valuable Mustangs, which has approximately six or more such motor vehicles in storage, and that they would only steal Mr Miller's motor vehicle, its parts and documents, and not any others.

1. In addition, the circumstances surrounding the theft of Mr Miller's motor vehicle, especially when combined with the respondents' conduct during the proceedings, further undermine the credibility of their claims. This theft, and the respondents' consequential inability to provide documents, took place seven weeks after the parties failed to resolve their issues at the compulsory conference conducted on 28 May 2018, at which time the weaknesses in each party's respective case would have been exposed. It also occurred a fortnight after the respondents had failed to comply with the order to exchange their documents with Mr Miller by 2 July 2018. Further, the theft took place a fortnight before the hearing that was originally scheduled for 2 August 2018, which resulted in the third of six requests by the respondents for an adjournment, albeit this particular request was made by consent.
2. Moreover, the respondents were legally represented throughout the proceedings until 14 February 2020. Yet, it is striking that the respondents failed to make any reference to the additional labour charges the parties had allegedly agreed to in their 'Points of Defence'[19], Counterclaim[20], or 'Amended Points of Defence'[21]. Whilst this factor is not necessarily determinative of the issue, the failure to expressly mention this alleged term in these legal documents detracts from the respondents' claim for $3,800.00 in outstanding labour charges.
3. Further, as the proceedings progressed, the respondents created the unfortunate overall impression that they were deploying a range of delaying tactics that would apply inappropriate pressure on Mr Miller to abandon his claims. For example, whilst asserting in various pleadings that the respondents had documents to support their claims, they failed to produce this evidence to Mr Miller or the Tribunal, despite several Tribunal orders for them to do so. They also failed to provide expert reports in a timely manner, or to contribute documents for the Tribunal book prior to the hearing on 14 October 2019. In addition, apart from 15 October 2019, each day of the hearing commenced with a request from the respondents for an adjournment for one reason or another, seemingly without any regard for the inconvenience to any of the other parties involved in these proceedings. Correspondingly, the respondents failed to attend the directions hearing listed for 28 January 2020. They also did not call Mr Palmer as an expert witness, but then sought to introduce a new expert witness without warning on 17 February 2020.
4. Likewise, during his oral evidence Mr Pickford only made passing and vague reference to the additional labour charges that purportedly formed part of the parties' agreement, conveying the impression that he preferred not to dwell on this matter. By contrast, he readily agreed that the parties had agreed that

Mr Miller would supply all the parts required for the restoration work and that he would pay the respondents $15,000.00 for their labour. Importantly, $15,000.00 represented the original contract price the parties had agreed to, which did not include an additional hourly fee of $110.00 for labour.

1. Consequently, the respondents' overall conduct throughout the proceedings did not assist me to form a positive view of Mr Pickford's claims and credibility as a witness. On the other hand, whilst Mr Miller presented at the hearing as a frustrated customer, he was also a far more forthcoming and measured witness at hearing who demonstrated a willingness to concede factual matters when the evidence suggested that this was appropriate.
2. Further, Mr Pickford did little to assist his credibility by hinting on several occasions that he believed that Mr Miller may have been responsible for the theft of the motor vehicle. No evidence was submitted to the Tribunal to support this serious allegation. Given this, I give it no weight in considering the parties' respective claims.
3. Accordingly, having regard to the inconsistencies in the respondents' claims and evidence, I found Mr Pickford was an unsatisfactory witness whose evidence should not be accepted unless it was admitted or corroborated by other evidence.
4. As a result, and based on the evidence before me, I am not satisfied that the theft that occurred in July 2018 adequately accounts for the respondents' inability to produce any contemporaneous documents to support their claim that the parties had agreed to an hourly rate of $110.00 for labour. If such documents had existed, then it would be reasonable to expect that the respondents would have exchanged that evidence with Mr Miller by 2 July 2018, in accordance with the Tribunal orders dated 28 May 2018, before the theft occurred on 16 - 17 July 2018 and this evidence was allegedly stolen.
5. By contrast, Mr Miller's documentary evidence lent support to his claim that the parties had not agreed to an additional hourly charge for labour.
6. First, Mr Miller pointed to the notes he and Mr Pickford had recorded in November 2016 on the latter's Bendigo Bank letterhead[22], which set out the parts he had supplied to the respondents. Mr Pickford acknowledged that this record was prepared on letterhead belonging to him. In addition, whilst Mr Pickford noted that not all the handwriting on these documents belonged to him, he acknowledged that the notations ticking various items did confirm that these were parts Mr Miller had supplied to the respondent. Significantly, these records do not refer to any hourly labour charge.

1. Secondly, Mr Miller relied on the text messages he exchanged with Mr Pickford from 7 March 2016 to 30 July 2017, none of which make any mention of an hourly rate for labour.[23] I have considered Mr Pickford's submissions that Mr Miller's purpose in contacting him at this time was to discuss the restoration of his daughter's car. For example, the text messages sent on 10 April 2017[24] and 7 June 2017[25] specifically relate to Caroline's motor vehicle. However, Mr Miller did not deny that he had discussed Caroline's car with Mr Pickford. Instead, he argued that these discussions had no bearing on whether the parties had agreed to an hourly labour charge. On the other hand, Mr Pickford did not provide any text messages from his own telephone to suggest that the parties had agreed to such a term. Given this, I attach little weight to the fact that Mr Miller contacted Mr Pickford about his daughter's car in determining whether the parties had agreed to an hourly labour charge for Mr Miller's vehicle.
2. Thirdly, Mr Miller gave evidence that, having become frustrated at the length of time the respondents were taking to complete the restoration work, he prepared a draft written agreement on 8 July 2017[26] that would confirm the terms of the parties' original oral agreement, including that the contract price of $15,000.00 was inclusive of labour. Whilst I accept that Mr Pickford refused to sign this document, again, I note that he did not provide any contemporaneous evidence to contradict Mr Miller's explanation regarding the purpose of this document.
3. Finally, Mr Miller relied on the emails he sent to Mr Pickford on 20 and 24 July 2017[27] that similarly outlined his concerns regarding the respondents' delay. Notably, there is no mention in these emails that the parties had discussed at any point an additional hourly charge for labour. Nor has the respondent provided any contemporaneous evidence to the contrary.
4. Accordingly, given the timeframe over which these various communications took place, it would be reasonable to find an occasional reference to the alleged additional labour fee, if this had actually formed part of the parties' agreement. The fact that there is no such reference lends support to the view that the parties did not agree to an additional hourly rate of $110.00 for the respondents' labour. In the absence of such evidence, I give less weight to the respondents' invoices dated 31 July 2017 and 7 August 2017 regarding the terms of the parties' 2016 oral agreement.
5. As a result, I am not satisfied that the respondents have provided sufficient evidence to support their claim that the parties had agreed to an additional hourly labour charge of $110.00 for this work. Consequently, on balance, I

prefer Mr Miller's evidence that the parties had agreed on a final contract price of $15,000.00 for the restoration works and that this was inclusive of all labour.

1. I therefore find that the respondents' counterclaim for $3,800.00 in unpaid labour charges fails.

The claim for $1,715.00 for the supply of parts:

1. Mr Pickford asserted that Mr Miller had failed to supply the parts required for the restoration work and that he had also failed to pay for those parts the respondents had sourced for this purpose.
2. However, apart from Mr Pickford's oral evidence and the invoices issued to Mr Miller on 31 July 2017 and 7 August 2017, there is no other evidence to confirm that the respondents supplied parts for Mr Miller's motor vehicle to the value of $1,715.00. For example, there are no purchase invoices issued to the respondents to support this claim. Correspondingly, the Bendigo Bank notes shed little light on any parts that might have been purchased by the respondents for this purpose. Indeed, as noted previously, Mr Pickford confirmed that this evidence contained notations that Mr Miller had paid for various parts.
3. I have reflected on Mr Pickford's explanation that the respondents' capacity to provide documentary evidence to support its claims has been hampered by the theft of Mr Miller's motor vehicle, spare parts and the associated documents. However, for the reasons outlined previously, I do not accept the respondents' explanation that the theft of Mr Miller's motor vehicle in July 2018 adequately accounts for their inability to provide evidence that would substantiate their claim for $1,715.00.
4. In considering this issue, I have also taken into account the signed statements from two auto electricians, Mr Isling[28] and Mr William Werry[29], who stated that they had not received the parts they required from Mr Pickford, in circumstances where they were aware that Mr Miller had paid for and/or purchased parts for this purpose. Likewise, Mr Isling gave oral evidence confirming that his electrical work on the motor vehicle was delayed on several occasions from July 2016 to November 2016 because the respondents had failed to provide the parts he had requested. These included: the heating/air-conditioning unit, tail lamp wiring sockets, and steering column.
5. During cross examination the respondents sought to suggest that Mr Isling was not a reliable witness because he had previously worked for Muscle Car, Braeside, a business that had burned down some years earlier. Mr Isling acknowledged that he had worked for this business, but he denied that he was linked to the cause of that fire in any way. The respondents did not submit any evidence that would suggest that Mr Isling was involved in this incident in any way, or how this event was linked to the theft of Mr Miller's motor vehicle. In the absence of such evidence, I am not persuaded that the Muscle Car fire is a matter that affects Mr Isling's credibility as a witness.
6. Similarly, Mr Isling acknowledged that Mr Miller had drafted his written statement[30] for him. However, Mr Isling also said that he had reviewed this typed statement, and that he had asked for it to be amended based on his recollection of events, before he signed it. In addition, Mr Isling reiterated that he recalled making verbal requests and sending text messages to Mr Pickford for parts that were not supplied. In the circumstances, I found Mr Isling to be a frank and credible witness at the hearing.
7. Correspondingly, Mr Miller relied on the text messages he exchanged with Mr Pickford to confirm his claim that they had discussed the provision of money and/or parts by Mr Miller to the respondents. For example, I give weight to the fact that these reveal that Mr Miller contacted Mr Pickford on 7 March 2016, 27 May 2016, 2 and 15 June 2016, 6 July 2016, 3 and 9 November 2016, 15 December 2016 and June 5 2017 about delivering various parts for the restoration work to the respondents.[31]
8. Accordingly, on the basis of the evidence from Mr Isling and Mr Werry, as well as Mr Miller's text messages, I accept that it is more likely than not that the respondents did not supply and provide the parts listed in the invoices they issued to Mr Miller. Similarly, I am not satisfied that the respondents have established through their evidence that Mr Miller failed to pay for the needed parts.
9. As a result, I find that the respondents' counterclaim for the supply of parts to Mr Miller to the value of $1,715.00 fails.

1. The respondents claimed that the parties' oral agreement included an express term that Mr Miller would be charged storage fees of $22.00 per day for any day the motor vehicle was not being worked on. The respondents also claimed that Mr Miller had agreed to this fee in October 2016 when he purportedly instructed them to cease work on his motor vehicle and to focus on Caroline's car. [32]
2. Mr Pickford agreed during his oral evidence that there was no evidence of any documented agreement that Mr Miller had agreed to pay such charges. However, he relied on the photograph of a sign in the respondents' workshop that stated:

Attention Customers

All cars not being worked on are incurring $22 plus GST per day storage fees.[33]

1. In addition, the respondents relied on the evidence of their witnesses that confirmed these claims. Specifically, Mr Diacoyannis stated that he recalled seeing this sign in the respondents' workshop in 2016. Similarly, Mr Clayton said he believed that he may have seen this sign in or about 2016 or 2017.
2. To support this claim Mr Pickford also referred to Mr Miller's text messages dated 10 April 2017[34], 7, 29 and 30 June 2017[35] and 10 July 2017[36], in which discussions took place regarding the finalisation of work on Caroline's car.
3. Mr Miller denied that he had instructed the respondents to cease work on his motor vehicle and to only concentrate on Caroline's car, or that he had agreed to storage fees of $22.00 per day. He also disputed that the respondents' signage regarding this storage charge was on display in their workshop from 2016. Instead, Mr Miller asserted that the storage fees issue only arose when he began to raise concerns in July 2017 about the delay in the completion of his motor vehicle.
4. For this purpose, Mr Miller relied on the written evidence from Darren Crampsey and Mr Ising, as well as the oral evidence from his daughter and granddaughter, all of whom stated that they did not recall seeing any signage about daily storage fees when they visited the respondents' workshop during 2016 and 2017.
5. In considering the parties' competing claims regarding the storage fees, I prefer Mr Miller's evidence for the following reasons.
6. The respondents' photograph of the storage fee sign is not dated. As a result, there is little to indicate when the respondents actually displayed this sign in the workshop. Nor does this photograph, by itself, provide a sufficient basis for finding that Mr Miller expressly agreed to the storage charges claimed.
7. In addition, the oral evidence from Mr Diacoyannis and Mr Clayton about these charges was not overly persuasive. For example, Mr Diacoyannis confirmed during cross examination that he had received a payslip from the respondents during the period October 2017 to April 2018 and that he was thus working directly for Mr Pickford. As such, I am satisfied that he was the respondents' employee at all relevant times and not an entirely disinterested witness in these proceedings.

1. Notably, although Mr Diacoyannis claimed to have seen the storage charges sign in 2016, his employment with the respondents commenced in October 2017. He also stated that he was not really involved in the restoration work on Mr Miller's motor vehicle and the associated discussions. Therefore, Mr Diacoyannis was not well placed to know what might have transpired between the parties a year before he commenced working for the respondents. As a result, I place less weight on his evidence regarding the likelihood that Mr Miller was aware of and had agreed to pay storage fees of $22.00 per day.
2. Correspondingly, I have taken into account that Mr Clayton's evidence was somewhat vague, indicating no more than his belief as a regular visitor to the workshop that customers were aware that a storage fee would apply if they left their vehicles at the respondents' premises. In doing so, I acknowledge that the respondents were not legally represented on 17 February 2020 when Mr Clayton gave his evidence. I have also made some allowance for Mr Pickford's layman questioning technique. However, despite being warned to refrain from doing so, Mr Pickford tended to suggest the desired answer to Mr Clayton during the latter's evidence. In considering the reliability of Mr Clayton's evidence, I also note that Mr Pickford suggested that Mr Clayton's age may have affected the latter's memory. Given the interplay of these factors, I place less weight on Mr Clayton's evidence that the respondents had prominently displayed the storage fees sign at their premises during 2016-17.
3. I acknowledge that Mr Miller's daughter, Caroline, and granddaughter, Ms Boxall, were not entirely disinterested witnesses at the hearing. However, on balance, I found their oral evidence reasonably persuasive. Notably, the respondents did not dispute Caroline's evidence that, whilst she did not know how regularly the respondents had worked on her car, she had never been charged storage charges during the 18 months it was in the respondents' workshop. Logically, if the respondents had charged such storage fees to customers whose vehicles were undergoing restoration work in the workshop in 2016, then it would be reasonable to expect that such charges might have been applied to Caroline's account, even if intermittently, during the 18 months her car was there. In addition, it would also be reasonable to expect the respondents to have past records of invoices or tax returns that might refer to this source of income. Yet, no such evidence was provided. Given this, I prefer Caroline's evidence that she did not see any signage referring to storage charges in 2016-17 and that she was not charged such fees.
4. Similarly, and as noted previously, I found Mr Ising to be a frank and credible witness at the hearing. Accordingly, I accept his evidence that he was familiar with the respondents' workshop, including having visited at least a dozen times during 2016, to undertake diagnostic and repair work. Mr Ising also stated that the type of fee referred to in the respondents' signage was generally only used to enforce payment of outstanding invoices from customers, rather than being a standard industry charge. Given Mr Ising's 32 years' experience as a mechanic, I accept his evidence that the unusual presence of this sign was something he would have noticed if it had been present during 2016. I also give weight to the fact that Mr Ising stated that he first became aware of the storage fees signage at the respondents' premises in August 2017, almost a year after they claimed to have discussed this with Mr Miller. Mr Ising's evidence is reinforced by the signed statement[37] from Mr Crampsey who, likewise, stated that he did not recall seeing any signage about storage fees at the respondents' workshop when he last visited in April 2017.
5. In addition, I also give weight to the fact that Mr Ising and Mr Miller gave consistent evidence that Mr Ising had worked on Mr Miller's vehicle at the former's property from 2 July 2016 to November 2016. Consequently, it is unlikely that there would have been any storage fees payable to the respondents during this five month period. Yet the invoice the respondents issued to Mr Miller charged him for 560 days, or approximately 18 months, storage. Given that the respondents' invoice was issued to Mr Miller on 31 July 2017, this would mean that the storage fees commenced in January 2016. However, this contradicts Mr Pickford's claim that the storage fees arose in October 2016 because Mr Miller had given instructions at that time for the respondents to work on Caroline's car.
6. Further, I place weight on the text messages Mr Miller exchanged with Mr Pickford from 7 March 2016 to 30 July 2017, which fail to make any mention of storage charges.[38] In addition, these text messages are, at best, somewhat equivocal, in terms of the claim that Mr Miller specifically instructed the respondents in October 2016 to cease work on his motor vehicle in favour of completing his daughter's car. I am not persuaded that references in Mr Miller's text messages from April - July 2017 regarding the completion of Caroline's car necessarily confirm that he also gave the respondents instructions in October 2016 to cease work on his car. There is also little in this evidence to indicate that Mr Miller necessarily agreed to storage charges, as claimed by the respondents.
7. Likewise, given the agreed contract price of $15,000.00 for the restoration of Mr Miller's motor vehicle, I do not consider it plausible that Mr Miller would have also agreed to an additional daily storage fee of $22.00, or $8,030.00 per annum. This also seems doubtful given that Mr Miller had acquired and paid for parts for the restoration work.

1. Finally, as discussed above, despite numerous invitations from Mr Miller's legal representatives and the opportunities provided by the Tribunal to do so, the respondents failed to produce any other document beyond their invoices to support their claim that the parties had agreed on an additional fee for storage.
2. Accordingly, having regard to the evidence as a whole, I am not satisfied that the respondents have provided sufficient evidence to support their claim that the parties had agreed to a daily storage fee of $22.00. I therefore find that the respondents' counterclaim for $12,320.00 in unpaid storage fees also fails.

1. Given these findings, I am not satisfied that the respondents have proven their original claim for $30,111.00, or their subsequently revised claim $17,835.00, from Mr Miller. Therefore, the counterclaim application in proceeding C2778/2018 is dismissed.

1. Mr Miller submitted that under the parties' agreement the respondents were bailees of his motor vehicle whilst it was in their workshop and that their poor security systems had led to the theft of his motor vehicle. As a result, Mr Miller argued that the respondents were liable for the consequential financial loss he had suffered.

1. A bailment occurs whenever a person delivers possession of goods to another on trust, to hold or deal with the goods on certain terms, and then return them to the owner.[39]
2. The principals of bailment require the owner of goods (the bailor) to deliver or transfer possession of the goods to another (the bailee) who voluntarily accepts possession. Once a bailee accepts such possession, they have a duty to keep the goods safe and to return the bailed goods to the bailor.[40]
3. The duty to take care of the goods is assessed in terms of what is reasonable in the circumstances. However, the law reverses the onus of proof and requires the bailee to prove that they were not negligent in discharging the duty to keep the goods safe.[41] Accordingly, if the goods are damaged or injured whilst in the bailee's possession, then the bailee is generally

presumed to be responsible and bears the burden of proving that the appropriate degree of care was exercised.[42] As a result, if a bailee fails to return the goods to the bailor at the end of a bailment then, generally, this is accepted as evidence of the bailee's failure to discharge this duty until proved otherwise.[43]

1. In terms of a bailee's duty to take care of the goods, the relevant principles have been set out in Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd[44] ('Tottenham Investments'). This case involved the theft of a valuable motor vehicle from a repairer's workshop where the thieves gained access from a skylight. The issue was whether the repairer had taken all reasonable precautions to safeguard the vehicle as bailee.
2. The Court held that, in circumstances where the repairer had taken steps approximately a week after the theft to install relatively inexpensive bars over the skylight, a modest alarm, and had also placed warning signs outside the premises, it was unable to prove it was not negligent. Kirby P set out the relevant principles of bailment as follows:
   1. A bailee for reward, such as a bailee for work and labour, assumes a duty to take such care of the bailed goods as is reasonable in the circumstances. It is essential to bailment, that unless forgiven by the law, the bailee should restore the property bailed to its lawful owner.
3. In the event of loss of goods during the bailment, the onus is upon the bailee to disprove that the loss is the result of any negligence on its part. This exceptional shifting of the onus of proof to the defendant derives from the essential obligation imposed by the reward which the bailor pays to the bailee for the work and labour done and the safekeeping of the goods.
4. The duty of the bailee is not that of an insurer. Thus, the bailee is not obliged to take every conceivable or possible precaution to prevent the loss of the goods. Its duty is simply to act reasonably. It is to take reasonable care such as person would take in respect of that person's own goods.
5. In respect of goods lost during bailment by theft, the bailee must show that it took steps which were reasonable in the circumstances to keep out intruders who might otherwise be tempted to misappropriate the bailor's goods or damage them. The relevant circumstances will include such matters as the value of the goods bailed; the location of the place of bailment; the costs paid the bailee by the bailor; the extent of knowledge of the bailor of the circumstances of the safekeeping; and the extent (if any) of evidence of thefts of goods in the vicinity of the place in which the bailee held the subject goods;
6. In modern circumstances, with the prevalence of theft it will often be reasonable to impose upon a bailee the duty to take positive steps to deter would-be thieves.
7. It is commonplace that wisdom after an event does not prove negligence before.
8. Foreseeability of damage or loss has been described as invoking an "undemanding test". The test is "undemanding" in the sense that it embraces a duty to take precautions not only for events which are "likely to happen" or "not unlikely to happen" but also for events which are not "unlikely to occur."
9. If the bailee, bearing the onus of proof, discharges that onus by establishing that the theft of the bailed goods occurred without negligence on its part, and the evidentiary burden is borne by the bailor to establish the precautions which could and should have been taken by the bailee to prevent the loss of the goods.
10. In many cases of claims against a bailee defences are raised based upon the terms of the contract pursuant to which the goods were deposited. It is pertinent to note that the common law's ordinary expectation that a bailee should restore property to its lawful owner finds reflection in the cases concerned with purported contractual exceptions. The bailee will remain liable as such unless it "did what was reasonably sufficient" to give the bailor notice of the condition excluding liability.
11. These principles were also referred to in All Covers and Accessories Pty Ltd v Sidawa[45] ['Sidawa's case'] where the Court added:

... it is worth noting in the context for example of the cases concerning theft from a bailee, that the value of goods bailed may be a relevant circumstance when it comes to assessing whether a bailee took reasonable steps to prevent a theft. That is, when the law requires the bailee to take precautions for events which are foreseeable, the value of the goods can be relevant to the question of the reasonableness of the precautions taken by the bailee to prevent the goods from being stolen. A custodian of the Crown jewels would be expected by the law to take greater precautions, than is the local dry cleaner with clothing.[46]

1. Another factor the Courts have considered relevant in deciding what is reasonable when assessing whether a security system is adequate is the difficulty and expense of the possible precautions available to a bailee.[47]
2. Accordingly, at a practical level the Courts have required bailees to actively review and update, as necessary, their security arrangements. So, in Tottenham Investments the fact that the bailee had taken precautions after the theft occurred was evidence the bailor could rely on to argue that these precautions were reasonably practicable before the theft.[48] In Tottenham Investments the bailor was successful because the bailee had "relied upon its past experience and old forms of security to protect the goods left with it", and these were considered inadequate when it made substantial improvements to its security system after the theft.[49]
3. In addition, the Courts have also highlighted the importance of securing the goods. For example, in A1 Perfect Plumbing Pty Ltd v BMW Prestige Pty Ltd ('A1 Perfect Plumbing')[50] the bailor's motor vehicle was left with the bailee for some warranty and service work with the relevant car key placed in a key safe. The work was completed and parked within the bailee's premises ready for the bailor's collection. However, even though the bailee had retained possession of the car key provided to it, the motor vehicle was stolen because the gates to the business premises were left open during business hours and an employee confirmed that he had noticed someone drive the car away. The Court noted that the bailee had not provided any real evidence about any other security measures it had in place to prevent a vehicle being driven from its car park. For example, there was no security on the gate or in the car park. Consequently, the Court was not satisfied that the bailee had discharged its duty of care to take reasonable precautions for the safety of the bailor's motor vehicle.[51]
4. In Terry Hogan Prestige Cars Pty Ltd v Opera Investments Pty Ltd ('Terry Hogan Prestige Cars')[52] the Court also focussed on the physical security of the goods to find that the bailee was not liable for the theft of a motor vehicle. In Terry Hogan Prestige Cars the bailor's motor vehicle was stolen overnight from the bailee's locked showroom. The security measures included a monitored alarm with a closed circuit television system, the front of the showroom was plate glass with steel pillars, and there was a low brick retaining wall in front of these pillars. In addition, the only vehicle entry and exit to the showroom was at the rear that had a secured roller door and bollards. Conversely, the bailee kept the keys to the motor vehicles in a cabinet that was not locked. The bailor's motor vehicle was damaged when thieves broke into the showroom by using a sledgehammer to smash through

the retaining wall and plate glass. Once inside, the thieves located the car keys in the unlocked cabinet and then drove through the plate glass and steel pillars, seriously damaging the stolen motor vehicle. A security guard at a nearby site witnessed the theft and called the police who arrived just as the thieves were leaving. On appeal, the Court held that it was unclear whether having the keys locked in a cupboard or a filing cabinet would have made a difference in circumstances where the thieves had taken "extraordinary means", including "at great risk of damaging the car", to remove it from the showroom. Accordingly, the Court was not satisfied that the bailee was liable for the damage inflicted on the stolen motor vehicle. This was based on the measures the bailee had in place for the physical security of the goods in its possession.[53]

1. There was no dispute that Mr Miller had transferred possession of the motor vehicle to the respondents and that they had voluntarily assumed possession. As a result, I find that once the respondents had received Mr Miller's motor vehicle in 2015/16 it was the subject of a bailment for reward. Therefore, I am satisfied that from that point the respondents had a duty to take care of the vehicle, including storing it safely, until the time it was returned to Mr Miller.
2. Correspondingly, the respondents have also admitted that Mr Miller's motor vehicle was removed from their workshop whilst in their possession. Therefore, they bear the onus of proving that they were not negligent in discharging their duty to store Mr Miller's motor vehicle safely.

Did the Respondents discharge their duty of care as bailees?

The Alleged Warning to Customers regarding Insurance:

1. Mr Pickford advised that the respondents' insurance with Wesfarmers only covered the theft of car parts, and did not extend to fire, pubic liability, damage or theft of any motor vehicles undergoing restoration work in the workshop. As a result, and given that a bailee's duty of care is not that of an insurer, Mr Pickford stated that the respondents routinely advised all their customers, including Mr Miller, to have their own insurance. The respondents therefore argued that they were not responsible for Mr Miller's loss.
2. To support these claims Mr Pickford relied on a photograph of signage within the workshop ('the theft warning') to support these claims, which he claimed had been on display at the respondents' premises since 2015/16. Relevantly, this sign stated:

Karl Pickford is not liable for any Damage, Destruction or Theft of client's vehicles.[54]

1. Mr Miller and his daughter/witnesses disputed the respondents' claims. They asserted that the theft warning only appeared in the respondents' workshop in December 2017, after he had filed his application with the Tribunal in October 2017.
2. I note that the evidence to confirm the existence and display of the respondents' theft warning in 2015/16 is somewhat limited.
3. First, Mr Pickford admitted that the photograph of the theft warning provided to support the respondents' claim was actually taken after the July 2018 theft of Mr Miller's motor vehicle.
4. Secondly, given Mr Pickford's limited credibility as a witness, I give weight to the fact that the respondents failed to provide any other corroborative evidence to support their claim that their customers generally, and Mr Miller specifically, were forewarned about the possibility of theft and the need to arrange their own insurance cover. For example, the respondents did not produce any receipt issued to customers upon delivery of a motor vehicle that highlighted that owners should take steps to arrange such insurance. Similarly, apart from calling Mr Clayton as a witness, the respondents did not call any other customers to give evidence that they were aware of the need to take steps to arrange such insurance.
5. Thirdly, Mr Clayton's oral evidence on this point was fairly vague and of limited value. I have had regard to Mr Clayton's testimony that he had regularly attended the respondents' workshop prior to 17 July 2018 to work on the restoration of his own motor vehicle, and that he believed the theft warning had been on display there for 3 - 4 years. However, this response was given in circumstances where Mr Pickford's questioning style effectively suggested the appropriate answer to Mr Clayton. In addition, Mr Pickford did not ask Mr Clayton to outline what insurance arrangements the latter had put in place to protect his own vehicle whilst it was stored at the respondents' premises. Nor did Mr Clayton suggest that he had taken such steps in response to the warning on display.

1. In assessing what weight to assign to Mr Clayton's evidence, I have made some allowance for the fact that Mr Pickford was a self-represented litigant on 17 February 2020 when Mr Clayton gave his evidence. On the other hand, I also note that the respondents were legally represented throughout the proceedings until 14 February 2020. As such, they have had ample time in which to prepare their defence to Mr Miller's claim.
2. Consequently, I am not satisfied that the respondents' lack of legal representation on 17 February 2020 sufficiently explains the nebulous nature of Mr Clayton's oral evidence, as well as the lack of any other documentary evidence to verify their claims.
3. In this context I have also considered the extent of Mr Miller's knowledge of the respondents' premises in Moorabbin. As I found Mr Miller to be a credible witness, I accept his evidence, which was supported by his daughter, that he had received assurances from Mr Pickford that the premises had appropriate security and that the latter had suitable insurance.
4. I accept that the fact that Mr Miller took out insurance with Shannons on 26 July 2017[55], almost a year before the theft of his motor vehicle, points to the likelihood that the parties had discussed insurance issues. However, the insurance policy before me refers to a new policy for insurance cover from 26 July 2017 to 26 July 2018 rather than the renewal of an existing policy. Given the lengthy delay in the completion of the restoration work by the respondents and Mr Pickford's tardy responses to Mr Miller's queries, I accept Mr Miller's explanation that he took out insurance because he had become less confident of Mr Pickford's earlier assurances.
5. Accordingly, on the evidence before me, I am not persuaded that since 2015/16 the respondents routinely warned their customers, including Mr Miller, that they should arrange insurance for their motor vehicles to cover risks such as theft. I am also not satisfied that the respondents had prominently displayed the theft warning at their premises before December 2017, as claimed.
6. In any event, even if the theft warning had been given to customers and placed on prominent display in the respondents' workshop, I am not persuaded that this released the respondents from their duty as bailees to take care of Mr Miller's vehicle.

Did the respondents take reasonable steps to reduce the risk of theft?

1. The respondents argued that their security arrangements for the motor vehicle were reasonably sufficient in July 2018 to protect Mr Miller's motor vehicle and that, therefore, they were not negligent in their duty to store this motor vehicle safely.

1. As background to the reasonableness of the steps taken by the respondents, Mr Pickford advised that a Mustang that he had owned was stolen from the respondents' workshop[56] in November 2011. He added that there were also two break-ins at the workshop within six months during 2016.
2. As a result of these incidents, and on the advice of their insurer, Wesfarmers, the respondents put additional security measures in place at the workshop. Mr Pickford advised that by July 2018 these included a monitored security system that consisted of two security cameras, closed-circuit television and a video recorder.[57] The front entrance door to the workshop was also fitted with a solid steel fire door with a heavy padlock on the inside, and all other doors to the premises had padlocks.[58] In addition, the roller doors had chains fitted,[59] the office door was made of steel mesh and self-locking[60], and the windows had bars with steel mesh. The respondents provided photographs[61] and a copy of the security report from iDetect, their security monitoring agents, for the period 16 - 22 July 2018 ('the iDetect report')[62] to support these claims.
3. Mr Pickford also outlined the security processes in place to secure the workshop on a daily basis. Specifically, at the start of each day an authorised person would unlock the padlocks and disarm the alarm system; the same system applied in reverse at the end of the day. Mr Pickford, Mr Diacoyannis, Mr Clayton and Mr Joe Ferrucio were all authorised to operate this security process and knew the alarm access code. Each authorised person also had their own keys to open the front door, office and roller door. Mr Pickford explained that the keys for all of the motor vehicles in the workshop were locked in a steel box and placed in a toolbox. Similarly, the keys for the padlocks were kept in a different drawer of the same toolbox. Mr Diacoyannis and Mr Clayton described the security process in similar terms and I accept that this was the process.
4. Mr Pickford also stated that these security arrangements had generally worked well until July 2018, noting that the only motor vehicles stolen from the respondents' workshop were his own Mustang in 2011, and Mr Miller's in July 2018.
5. In terms of the events on 16 - 17 July 2018, Mr Pickford gave evidence that there had been some fluctuations with power in the area in July 2018 that had resulted in the alarm system auto-dialling him on 16 July 2018. Consequently, he went to the workshop to check and found the alarm system was armed. The iDetect report the respondents submitted confirms that the alarm was armed at 19:47 pm that evening.[63] Thus, as far as Mr Pickford was aware, the alarm system was working that evening and it did not notify him otherwise. As a result, Mr Pickford believed that the workshop was properly secured on 16 July 2018.
6. However, when Mr Pickford arrived at the workshop on 17 July 2018, he found the padlock on the front door had been cut, possibly with a grinder, and the alarm was beeping. Mr Pickford also found that the security recorder and his bookwork and paper had been removed from the office, and that Mr Miller's motor vehicle was missing. As a result, Mr Pickford contacted iDetect at 07:24 am on 17 July 2018, which advised him that the alarm was not working at that point in time. Mr Pickford then reported the incident to the police who sent officers to investigate. The police report confirms that the method of entry to the respondents' workshop was "a cut/broken lock".[64] Mr Pickford claimed that the police later informed him that the burglary appeared to have been done by professionals. However, the police report is silent on this matter.
7. Mr Pickford gave evidence that Mr Miller's motor vehicle was under a cover he had supplied and that it was stored to the right and in front of the reception office.[65] This also placed it about a car length or so behind the main roller door at the front of the workshop and to the right of the front door. Mr Clayton's evidence was consistent with Mr Pickford's account, as was the floorplan he drew, which indicated that Mr Miller's motor vehicle was stored to the right of the reception office, perhaps one car space behind the front roller door. Accordingly, I accept that Mr Pickford's account regarding the physical location of Mr Miller's motor vehicle within the workshop on 16 July 2018.
8. The consensus at the hearing was that Mr Miller's motor vehicle was most likely removed through the front roller door entrance. In addition, Mr Pickford advised that within a week of this theft, and guided by their insurer, the respondents installed bollards outside the front roller door to prevent the removal of another motor vehicle from the workshop in this way; a photograph confirms the installation of bollards as claimed.[66]
9. The respondents maintained that the security measures they had in place prior to the installation of the bollards at their premises were reasonable in the circumstances to keep out intruders and prevent the theft of Mr Miller's motor vehicle. As such, they submitted that this evidence disproved any negligence on their part. Indeed, both Mr Diacoyannis and Mr Clayton stated that, in their opinion, the respondents had done what was necessary to secure the workshop.
10. However, having regard to the relevant test and factors set out in Tottenham Investments and Sidawa's case, I am not satisfied that the respondents have discharged their onus to prove that they acted reasonably to prevent the loss of Mr Miller's motor vehicle.
11. First, and as noted previously, it is not in dispute that the parties had agreed that the respondent, as a specialist restorer of Mustang motor vehicles, would convert Mr Miller's motor vehicle into a highly collectible Eleanor replica. In addition, the parties agreed that the respondents' workshop was located in what could generally be described as an industrial or commercial park in Keys Road, Moorabbin. I note that neither party led any evidence regarding the level of theft of goods in this vicinity.
12. However, I give weight to the fact that Mr Pickford advised that the respondents had previously been the target of criminal activity. Specifically, in November 2011 Mr Pickford's Mustang was stolen from the respondents' premises, and in 2016 there were two break-ins within 6 months of each other. I thus find that theft of the kind of motor vehicle Mr Miller had left with the respondents in this type of location is an event that is "not unlikely to happen".
13. Secondly, the value of the bailed goods in the respondents' possession suggests that they should have taken greater precautions to secure Mr Miller's motor vehicle. Notably, Mr Pickford gave evidence that there were at least six vehicles, if not more, in the workshop at the time of the theft in July 2018. This included the motor vehicles belonging to Mr Miller and Mr Clayton. In addition, whilst the parties disagreed on the final value of Mr Miller's motor vehicle in July 2018, they agreed that a Mustang converted into a replica Eleanor was a valuable asset. The respondents' expert, Mr Palmer, estimated Mr Miller's motor vehicle to be valued at $81,865.00[67] whereas the latter's expert, Mr Cuthbert, suggested $140,000.00.[68] Consequently, I accept that Mr Miller's motor vehicle had significant commercial value at the time of the bailment in July 2018.
14. Thirdly, whilst Mr Pickford expressed the view that the respondents' security measures had worked well since 2016, the evidence indicates otherwise. The iDetect security report[69] produced from the respondents' security system for the period 16 - 22 July 2018 states that Mr Pickford disarmed the security system at 17:39:46 pm on 16 July 2018 and that there was an alarm at this point in time. Approximately 30 minutes later at 18:10:36 pm the system records "Trouble" and the associated comment reads "mains power (RT)". Two minutes later the system records that it is awaiting restoration of power.

At 19:16:01 pm, the iDetect report records "Check" and the associate comment refers to the need for the restoration of the mains. From 19:23:40 - 19:27:12 pm the system autodials Mr Pickford about the issue. The report indicates that Mr Pickford advised iDetect that he would check the alarm at the workshop and that power was restored at 19:42:40 pm. It also shows that Mr Pickford undertook an arm/disarm check and contacted iDetect to make sure the alarm was working at 19:45:01 pm, and that he armed the alarm at 19:47:23 pm

1. Significantly, the next entry on the iDetect report records "Check" at 03:00:03 am on 17 July 2018 with the comment:

Should have reported! (By system: last signal at 16/07/18 1:21:27am) (Override SHR until next due 18/07/18 3:00:03 am) (Auto finalise SHR).[70]

The report then indicates that at 07:24:36 am on 17 July 2018 Mr Pickford telephoned iDetect that someone had, amongst other things, cut the padlocks, gained access to the building, and stolen a car. The report records that iDetect informed Mr Pickford that they were not receiving signals from the alarm system, as he had set off the alarm on entry and that during this telephone call the alarm was successfully disarmed, re-armed and disarmed again. At the hearing Mr Pickford was unable to explain why he had not received an automated telephone call from the alarm system, or from iDetect, that the premises had been burgled, or that the alarm was not working, that evening.

1. In considering the adequacy of the respondents' alarm system I have given some weight to Mr Pickford's inability to elaborate on the contents of the iDetect report in any meaningful way. For example, he stated that he did not know what the acronym "SHR" stood for in the iDetect report. In addition, although Mr Pickford claimed that there were mains power issues in the area, he did not provide any evidence to substantiate this claim. By contrast, Mr Diacoyannis stated that whilst he was employed by the respondents he was not aware of any problems with the alarm system due to power blackouts in the area.
2. Importantly, the respondents did not call anyone from iDetect to elaborate on the contents of the security report. Similarly, whilst a copy of the police incident report[71] was provided to the Tribunal, the respondents did not call the investigating police officer to give evidence regarding the theft of Mr Miller's motor vehicle and an assessment of the security arrangements in place. Yet, this occurred in circumstances where the respondents were legally represented until 14 February 2020 and where they had requested and had

been granted more than one adjournment. Correspondingly, as the iDetect and police incident reports were included in the Tribunal Book filed in September 2019, the respondents had had ample time to consider and address the issues raised by this evidentiary material. Given this, I attach some weight to the respondents' failure to address these matters to support their case.

1. In addition, Mr Pickford gave evidence that the respondents had implemented security system upgrades on the advice of their insurer after the 2011 theft, 2016 break-ins and the July 2018 theft. However, it appears that between these incidents the respondents did not actively review their security arrangements to ensure that they were current and would continue to appropriately deter would-be thieves. Rather, the thrust of the evidence was that Mr Pickford took such steps only after an incident based on the advice of his insurer.
2. Accordingly, I find that the respondents' monitored alarm system was suffering from intermittent operational fluctuations and, thus, was not working properly on 16 - 17 July 2018 when Mr Miller's motor vehicle was stolen. Consequently, I am also not satisfied that the actual alarm system the respondents had in place on this date was suitable to protect Mr Miller's motor vehicle.
3. Finally, in terms of the physical impediments to the theft of Mr Miller's motor vehicle, the parties accepted that the front entrance door padlock failed to act as a physical deterrent because the thieves were able to cut it. As noted previously, Mr Miller's motor vehicle was stored near the reception office and reasonably close to the front garage door. In addition, the parties generally concurred that this motor vehicle was most likely removed through the main garage entrance to the workshop. Likewise, the parties agreed that there were no bollards installed at the front entrance garage door prior to the theft in July 2018. Notably, Mr Diacoyannis observed during his evidence that many similar factories or workshops install such bollards as an additional layer of security to prevent thieves crashing through a garage roller door and stealing the motor vehicles stored inside. I give weight to the fact that Mr Pickford did not indicate that the installation of bollards was in any way cost prohibitive or impractical. Instead, he advised that the respondents installed these within a week of the theft of Mr Miller's motor vehicle.
4. As such, I consider the respondents' case is similar to that of the bailee in Tottenham Investments. This is because the respondents relied on past experience and old forms of security to protect the motor vehicles left with them, when they could easily have installed bollards to hinder the ability of

any thief to remove a motor vehicle through their front garage roller door. The fact that the respondents were able to make this substantial improvement to their security system within a week of the theft lends strong support to a finding that their security arrangements prior to the theft were inadequate.

1. This view is further reinforced when the respondents' circumstances are compared to those of the bailee in Terry Hogan Prestige Cars. I acknowledge that the respondents had a monitored alarm with a closed circuit television system in place, like the bailee in Terry Hogan Prestige Cars. The respondents also had additional security measures in place such as locks on their front entrance door, bars on the windows, padlocked chains on the roller doors and they kept keys in a toolbox out of sight.
2. However, the evidence shows that the respondents' alarm was not operating normally at the time of the theft. In addition, unlike the bailee in Terry Hogan Prestige Cars, the respondents did not have bollards installed that would physically deter thieves from trying to remove motor vehicles through the main garage roller door entrance at the front of their premises. I find that this represents a significant weak point in the security system the respondents had in place for the protection of the goods in their possession, especially given the intermittent and flawed performance of their monitored alarm system on the relevant night in question.

1. For the above reasons, I find that the parties' agreement for restoration work gave rise to a bailment for reward. Consequently, this meant that the respondents had a duty of care to use reasonable care to keep Mr Miller's motor vehicle safe and to return it to him. I am also not satisfied that the respondents had warned Mr Miller in 2015/16 of the need for insurance to such risks, and that in full knowledge of this, Mr Miller had agreed to assume sole responsibility for the potential theft of his motor vehicle from the respondents' premises.
2. In addition, I find that sometime after Mr Pickford checked and closed the respondents' premises at 19:47 pm on Monday 16 July, and before 07:24 am on Tuesday 17 July 2018, Mr Miller's motor vehicle was stolen from the respondents' premises.
3. In assessing whether the respondents have discharged their duty as bailees, I have considered the location of their workshop in Moorabbin and the 2011 motor vehicle theft and 2016 break-ins. Given the evidence before me, I am satisfied that the respondents' workshop was located in an area that required appropriate security measures to be in place to reduce the risk of theft, especially outside business hours. In turn, I find that this meant that the respondents were required to take reasonable preventative steps that would mitigate these risks for their customers, including Mr Miller.
4. I further find that there were operational flaws in the respondents' alarm system in July 2018 that significantly undermined the security arrangements they had in place to protect their customers' goods. I also accept that the speed and ease with which the respondents installed protective bollards to their premises following the theft of Mr Miller's motor vehicle in July 2018 confirms that their security arrangements were inadequate prior to that theft.
5. Accordingly, given the above findings, I am satisfied that the respondents were negligent in discharging their duty as bailees to keep Mr Miller's motor vehicle safe in July 2018. Therefore, I find that Mr Miller is entitled to recover damages for the loss he has suffered because of the theft of his motor vehicle.

1. Under subsection 184(2)(b) of the Australian Consumer Law and Fair Trading Act 2012 (Vic) the Tribunal can make orders for the payment of damages in relation to a consumer and trader dispute. The general principle that applies where a party claims damages is that they must prove the fact of loss and the amount of that loss before they can recover substantial damages.[72]
2. The parties agreed that Mr Miller's motor vehicle was removed from the respondents' workshop and that the police have not been able to recover it. As a result, Mr Miller claimed he had suffered a financial loss of $140,000.00 based on the valuations set out in the Cuthbert reports.[73] By contrast, the respondents relied on the Palmer report to argue that Mr Miller's motor vehicle was only worth $81,865.00. For the following reasons, I prefer Mr Cuthbert's valuation over that provided by Mr Palmer.
3. Although these written reports were tendered as evidence to the Tribunal, only Mr Cuthbert appeared as an expert witness to give oral evidence about the value of Mr Miller's stolen motor vehicle. As noted previously, the respondents failed to call Mr Palmer as their expert witness to give evidence about these matters when the hearing resumed on 17 February 2020. Mr Pickford advised that Mr Palmer was unable to attend on this date for this purpose. However, I find this explanation unsatisfactory given Mr Pickford was present at the hearing on 16 October 2019 when the hearing was adjourned, in part, to facilitate Mr Palmer's attendance as an expert witness. As a result, Mr Cuthbert was the only expert witness before the Tribunal that was able to provide important context regarding the factors that had informed his valuation of Mr Miller's motor vehicle.
4. In assessing what weight to give Mr Cuthbert's report I give weight to the fact that the respondents did not dispute his qualifications[74] to give evidence about such matters. Consequently, I accept that Mr Cuthbert was well placed to give expert evidence on the value of Mr Miller's motor vehicle in July 2018 at the time of its theft.
5. Notwithstanding, the respondents submitted that the Cuthbert reports were not reliable because they were based on flawed assumptions. However, I am not persuaded that is the case.
6. I do not accept that the error in the original Cuthbert report regarding the VIN for Mr Miller's motor vehicle materially affected his findings about the valuation of this vehicle. Specifically, the original Cuthbert report[75] identified the VIN for Mr Miller's motor vehicle as 7R02S120175[76] whereas Commonwealth records[77] confirm that an import approval was issued for a 1967 Ford Mustang with VIN/Chassis number 7R02A120175.[78]
7. Mr Cuthbert addressed this issue at length in the supplementary Cuthbert report[79], in which he explained that he had relied on his handwritten notes of his telephone conversations with Mr Miller, which recorded the VIN as 7R028120175.[80] Mr Cuthbert stated that when preparing his written report he realised that this VIN was inconsistent with the VIN usually found on a 1967 Mustang. Since Mr Cuthbert did not have the import approval to check the VIN for Mr Miller's vehicle when preparing his original report, he referred to the Ford decoding system used for such motor vehicles. As a result, Mr Cuthbert inserted the letter "S" in his original report because this was the applicable engine code for the larger type of V8 engine he had discussed with Mr Miller.[81]
8. At the hearing Mr Cuthbert accepted that the respondents' photograph of the VIN identification plate indicated that the VIN had a letter "A" rather than a letter "S". He also acknowledged that his original report therefore incorrectly recorded the VIN for Mr Miller's motor vehicle.
9. Importantly, Mr Cuthbert stated that the incorrect reference in his original report did not affect his valuation of Mr Miller's motor vehicle at $140,000.00. Mr Cuthbert explained that his findings were based on the instructions he had received from Mr Miller, what he knew of Mr Pickford's reputation as a restorer of Mustangs, and his finding that the motor vehicle was approximately 90% complete in July 2018. In addition, Mr Cuthbert opined that he had never seen an Eleanor replica built to a poor standard, and he was aware that Mr Miller wanted his motor vehicle to be completed to the highest standard.
10. I found Mr Cuthbert to be a frank and direct witness. I also attach weight to the fact that the decoding system he relied on, apart from a few minor differences, largely corresponds to the coding system Mr Palmer used in his report for the respondents.[82]
11. In considering the competing valuations in the Cuthbert and Palmer reports I have also had regard to the respondents' submissions that Mr Cuthbert's valuation was not reliable because far less than 90% of the required work had been done. I have further taken into account Mr Cuthbert's frank admissions that his valuation was based on two colour photographs, and that he could not speculate as to the valuation of the motor vehicle if it was less than 90% complete in July 2018.
12. Nevertheless, I give weight to the fact that Mr Cuthbert was open about these admissions. Mr Cuthbert stated that he frequently had access to only a limited number of photographs of a motor vehicle when preparing this type of valuation report. Mr Cuthbert was also not unduly swayed by the presence of Allan Moffat's autograph on the left hand inner guard area of Mr Miller's motor vehicle. Instead, Mr Cuthbert advised that whilst this feature would be of interest to a Ford enthusiast and add to the desirability of Mr Miller's motor vehicle, he could not place a dollar value on it.[83] As a result, I found Mr Cuthbert to be a credible witness and accept his evidence as a whole.
13. By contrast, the respondents' evidence that they had completed approximately 60% of the required restoration work on Mr Miller's motor vehicle at the time of the theft was not particularly convincing. For example, the respondents argued that the items listed in their invoice dated on 31 July 2017[84] confirmed that a significant amount of work had not been completed on the vehicle. However, the invoice is described as "Tax Invoice #0085". It also has the heading "Work Completed" and refers to an extensive list of items as well as 38 hours of labour. These features do not suggest that this

document was merely a quote for work that was yet to be done on the vehicle. In addition, this invoice was central to the respondents' counterclaim for outstanding fees. As such, I do not accept the logic of the argument that this document constitutes evidence that Mr Miller's motor vehicle was substantially less than 90% complete in July 2017, or that this was the case in July 2018. Instead, I find that this invoice was issued for work that had been completed by the respondents in July 2017.

1. Similarly, the respondents suggested that, as Mr Miller's draft agreement dated 8 July 2017[85] referred to the completion of the restoration work in three stages, this meant that the work was substantially incomplete in July 2018. I note that this document specifically stated that the car was "to be completed ready for registration by September 31st [sic] 2017". Importantly, Mr Cuthbert also gave evidence that each of the items listed in stages 1 - 3 was quite complex and would have involved significant work. Consequently, given this complexity and the September 2017 completion date Mr Miller had specified, Mr Cuthbert stated that it was valid to infer that a substantial part of the work for each stage had been completed by 8 July 2017, even if the respondents did not perform much work after they issued the invoice on 31 July 2017 because Mr Miller had refused to pay their invoice.
2. There are also several facets to the Palmer report that diminish its evidentiary weight as an accurate valuation of Mr Miller's motor vehicle in July 2018. For example, the Palmer report includes notations that are unexplained because Mr Palmer failed to attend as a witness to elaborate on his findings. In particular, one of these notations queried the reference to coloured photographs in the original Cuthbert report.[86] However, given Mr Palmer's non-attendance at the hearing, the significance of this notation to the final valuation of Mr Miller's motor vehicle in July 2018 is unclear.
3. The Palmer report also relied on seven photographs[87] that Mr Pickford had supplied, said to be the undercarriage of Mr Miller's motor vehicle. However, not only were these photographs not provided to Mr Miller for the purpose of Mr Cuthbert's reports, the respondents failed to provide any corroborative evidence to confirm that these photographs were of the undercarriage of Mr Miller's vehicle and not that of another similar model belonging to another customer or third party.
4. In addition, the Palmer report specifically refers to numerous photographs of other Eleanor replica motor vehicles[88] that are acknowledged as such in the report. I am not satisfied that these photographs are relevant to an assessment of the completion of the restoration work on Mr Miller's motor vehicle. Similarly, in circumstances where the respondents' business involves the

restoration of Ford Mustangs and Mr Palmer did not attend the hearing to give evidence, on balance, I am not satisfied that the photographs he relied on are of Mr Miller's motor vehicle. Moreover, Mr Palmer's report was based on the instructions he received from Mr Pickford who proved to be a less than reliable witness.

1. Accordingly, I find that the assumptions that underpin the Palmer report are seriously flawed and give this report no weight in assessing Mr Miller's financial loss.
2. Correspondingly, the respondents' evidence regarding the parts supplied and fitted to Mr Miller's motor vehicle also proved unsatisfactory. At different points during the proceedings Mr Pickford claimed that Mr Miller had failed to supply many of the parts set out in the latter's amended Points of Claim[89], but Mr Pickford would then give oral evidence that contradicted this claim. For example, Mr Pickford stated that Mr Miller had failed to supply the complete 428i engine and transmission assembly, Eleanor wheels, the interior and interior carpet. Yet, the respondents' invoice to Mr Miller on 31 July 2017 sought payment for fitting the transmission to the engine block and the removal and refit of the front and rear wheels.[90] In addition, during his oral evidence Mr Pickford advised that the 428i engine and transmission assembly were worth $1200 and that this was used to pay for the original car seats he had provided for the restoration. Mr Pickford also stated that Mr Miller had paid $2000 in cash to Mr Banks for the Eleanor wheels and that Mr Miller had also paid approximately $180.00 - $220.00 for the interior carpet. Similarly, whilst Mr Pickford disputed the actual value to be assigned to the interior for the motor vehicle, he acknowledged that Mr Miller had provided the interior for the motor vehicle. As a result, these inconsistencies in the respondents' evidence undermine their claim that the restoration work was only 60% complete because Mr Miller had failed to supply them with the parts they required.
3. On the other hand, Mr Miller provided various text messages sent to Mr Pickford that confirmed he had provided the latter with parts. For example, there are text messages about the motor on 7 March 2016[91], the delivery of parts on 27 May 2016[92] and the dashboard requirements on 15 June 2016[93]. In assessing what weight to give Mr Miller's documents, I have had regard to Mr Pickford's evidence that these text messages related to parts for Caroline's car rather than Mr Miller's vehicle.

1. However, Mr Miller did not deny that there was some overlap in his communications regarding both motor vehicles, as exemplified by the text message he sent on 2 June 2016 regarding the instrument cluster for Caroline's GT.[94] Notwithstanding such overlap, on balance, I am satisfied that the contemporaneous existence of these text messages points to the likelihood that Mr Miller supplied parts to the respondents on a reasonably regular basis, as claimed by him. This view is further supported by Mr Pickford's own evidence that he would source those parts that were not readily available for Mr Miller and would then take Mr Miller to the supplier to purchase them.
2. In terms of the competing valuations before me, I also give weight to Mr Cuthbert's evidence that the valuation of Mr Miller's motor vehicle was not substantially affected by whether the parts fitted were new or second hand. I accept his expert opinion that an owner of a replica Eleanor would not put in second-hand parts that were unsuitable.
3. As a result, and for the above reasons, I prefer Mr Cuthbert's expert valuation and find it to be the more reliable expert evidence before me. Accordingly, I find that Mr Miller's motor vehicle was valued at $140,000.00 at the time of the theft in July 2018.

1. The respondents further argued that Mr Miller had not mitigated his loss from the theft because he had failed to insure his motor vehicle with Shannons for its full value and, thus, they should not be liable.
2. The duty to mitigate has been described as the steps an injured party has taken that operate to minimise loss, as well as the steps they ought reasonably to have taken so as to minimise loss or at least not to increase it.[95] There is no need for the injured party to show that they have fulfilled their duty. Rather, the evidentiary burden lies with the breaching party to show that the injured party has not done so, and the extent to which this is the case.[96]
3. Accordingly, the onus was on the respondents to provide evidence that Mr Miller had failed to mitigate his loss and evidence of the steps he should have taken for this purpose.
4. In considering this issue I note that the respondents did not dispute that Shannons had issued comprehensive motor vehicle insurance to Mr Miller on 26 July 2017 for several motor vehicles. This included Mr Miller's 1967 Mustang which had an agreed value of $70,000.00 under this policy.[97] The respondents also accepted that Shannons had paid Mr Miller $70,000.00 on 23 May 2019 in settlement of his claim for the theft of this motor vehicle.[98]
5. At the hearing I explored the issue of subrogation with the parties and their legal representatives. In general, subrogation refers to the right of an insurer to pursue legal action against another on behalf of an insured. Notably, the Shannons Supplementary Product Disclosure Statement provided by Mr Miller does not make any reference to any right by Shannons to pursue the respondents for the loss suffered by Mr Miller. In response to questions about this matter at the hearing, Counsel for Mr Miller advised that subrogation did not arise and the respondents' legal representative did not raise any issues, or make any submissions, about this matter.
6. Notably, apart from asserting that Mr Miller should have increased the level of his insurance cover when he took out the Shannons policy in July 2017, the respondents provided little in the way of evidence to support their claims regarding Mr Miller's failure to mitigate his loss. In addition, the evidence before me confirms that the task of ascertaining the correct value of Mr Miller's motor vehicle at any given point in time was a complex exercise. This is demonstrated by the fact that Mr Miller had to engage Mr Cuthbert to do so and, even then, another expert, Mr Palmer, disputed the reliability of those findings.
7. Further, in the absence of any evidence to the contrary from the respondents, I accept Mr Miller's evidence that Shannons agreed to provide $70,000.00 insurance cover for his motor vehicle based on the two photographs included in Mr Cuthbert's original report.
8. In the circumstances, I find that by arranging insurance for an agreed value of $70,000.00 Mr Miller took steps that effectively operated to minimise his loss by fifty percent. Apart from asserting that Mr Miller should have assigned a higher value to the motor vehicle for the purposes of his insurance policy with Shannons, the respondents have not adduced evidence of any other steps Mr Miller ought reasonably to have taken to minimise this loss. On balance, and having regard to the evidence as a whole, I find that Mr Miller has mitigated his loss.
9. Therefore, I am satisfied that the respondents are liable to Mr Miller for damages of $70,000.00 arising from the theft of his motor vehicle from their premises due to their failure to discharge their duties as bailees to keep his goods safe.

1. Accordingly, having regard to the whole of the evidence and for the above reasons, I am not satisfied that the respondents have provided sufficient evidence to establish that Mr Miller had agreed to pay additional labour charges or daily storage fees, or that they had supplied him with parts to the value of $1,715.00. Given these findings, I am not satisfied that the respondents have proven their counterclaim for $30,111.00 from Mr Miller. Therefore, the application in proceeding C2778/2018 is dismissed.
2. In addition, I am satisfied that Mr Miller's motor vehicle was stolen whilst in the care and control of the respondents and that it has not since been recovered. On the evidence presented by the respondents, I find that they have not discharged their duty as bailees, to disprove that this loss was the result of negligence on their part. I am also not satisfied that they have established that Mr Miller failed to mitigate his loss. As a result, I find that the respondents are liable to pay Mr Miller $70,000.00 for the loss he has suffered.
3. Therefore, I have made the following orders:

1. The Tribunal orders that Pickeriti Investments Pty Ltd ACN: 100 951 844 and Karl Andrew Nigel Pickford must pay Francis Miller the sum of $70,000.00.
2. Any party may apply for legal costs and reimbursement of the Tribunal application fees by filing an application supported by submissions in writing by 1 May 2020, otherwise there will be no order for costs or fees.

[1] See Tribunal Book folio numbers 1-267.

[3] Dated 15 October 2018 at Tribunal Book folios 164-174.

[4] This is a unique 17 character serial number used to identify a motor vehicle: See https://www.ppsr.gov.au/vin-vehicle-identification-number - Accessed 11 March 2020.

[5] Dated 21 June 2019 at Tribunal Book folios 175-184.

[6] Dated 15 October 2018, Tribunal Book folios 164-174.

[7] Dated 16 October 2019, Tribunal Book folios 175-184.

[8] Dated 29 November 2019, Tribunal Book folios 231-262.

[9] See sections 97 to 102 of the Victorian Civil and Administrative Tribunal Act 1998.

[10] See Muto v Secretary to the Department of Transport, Planning and Local Infrastructure [2014] VSC 619 at [133].

[11] The Australian Consumer Law is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[12] See sections 8(1), 223 and 224 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

[13] As outlined in paragraph 6 of these written reasons.

[19] Dated 13 April 2018, Tribunal Book folios 14-17.

[20] Dated 13 April 2018, Tribunal Book folios 18-21.

[21] Dated 7 March 2019, Tribunal Book folios 31-34.

[31] See Tribunal Book folios 45-49, 53, 55-57, 82-83.

[32] See Counterclaim at Tribunal Book folios 18-19.

[36] Tribunal Book folios 102-103 & 107-108.

[38] Tribunal Book folios 45-111 & 118-124.

[39] See Court Forms, Precedents & Pleadings Victoria, volume 1, paragraph [11,001].

[40] See Halsbury's Laws of Australia, volume 2, paragraphs [40-1] and [40-5].

[41] All Covers and Accessories Pty Ltd v Sidawi [2012] VSC 48 (Mukhtar AsJ) at [2].

[42] See Halsbury's Laws of Australia, volume 2, paragraphs [40-405].

[43] Hobbs v Petersham Transport Co Pty Ltd [1971] HCA 26; (1971) 124 CLR 220 (per Windeyer J at 240).

[44] (1994) Aust Torts Reports 81-292 CA (NSW).

[45] [2012] VSC 48 at [16].

[46] [2012] VSC 48 at [17].

[47] Pitt Son & Badgery Ltd v Proulefco [1984] HCA 6; (1984) 153 CLR 644 (per Gibbs at 647-648)

[48] (1994) Aust Torts Reports 81-292 CA (NSW).

[49] (1994) Aust Torts Reports 81-292 CA (NSW) at 61,560. Leave to appeal to the High Court of Australia was refused: see Carburetto Services Pty Ltd v Tottenham Investments Pty Ltd [1995] 9 Leg Rep SL2e. See also Tarrant, John, 'Duties of a Bailee for Reward' [online]. Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia, Vol. 22, No. 3, Sept/Nov 2008: 18-24.

[50] [2006] FMCA 674; (2006) 230 ALR 331.

[51] [2006] FMCA 674; (2006) 230 ALR 331 at 338.

[52] [2006] NSWCA 139.

[53] [2006] NSWCA 139 at [23]- [25].

[56] See newspaper reports regarding this theft at Tribunal Book folio 143.

[61] Tribunal Book folios 129-132,136 & the photographs the respondents submitted at the hearing on 17 February 2020.

[65] See Tribunal Book folio 136 - the box drawn at the bottom of the photograph depicts where Mr Pickford believes the motor vehicle was stored in the workshop on 16-17 July 2018.

[67] See pages 1 and 4 of the Palmer report. This estimate comprises $41,865.00 for parts and labour and $40,000.00 for the value of the motor vehicle prior to work being carried out.

[68] Tribunal Book folios 231-262 at folio 249.

[71] Dated 17 July 2018 at Tribunal Book folios 145-150.

[72] See Keys Consulting Pty Ltd v Cat Enterprises Pty Ltd [2019] VSCA 136 at [68].

[73] See reports dated 15 October 2018 (Tribunal Book folios 164-174), 21 June 2019 (Tribunal Book folios 175-184) and 29 November 2019 (Tribunal Book folios 231-262).

[74] Mr Cuthbert relevantly holds the following qualifications: Mr Cuthbert has been a qualified motor mechanic since 1966. He has also been an associate member of the Institute of Automotive and Mechanical Engineers since 1969, and a member of the Society of Automotive Engineers - Australasia since 1972. In addition, Mr Cuthbert has been a Licensed Motor Car Trader since 1 December 1974 and is the director of Kaisan Pty Ltd trading as Cuthbert Automotive Sales and Cuthbert Automotive Consulting. Mr Cuthbert has extensive experience as an expert witness in the Victorian Courts (VCAT, Coroner's Court, County Court, Magistrates Court and Supreme Court), New South Wales Courts (District and Supreme Courts), Tasmanian Supreme Court, and the Commonwealth Family Law Court.

[83] See paragraph 18 of the original Cuthbert report at Tribunal Book folio 170.

[87] See photographs 3 - 9 at Tribunal Book folios 221-223.

[88] See photographs 12 - 33 at Tribunal Book folios 223-229.

[95] See J. W. Carter and D. J. Harland, Contract Law in Australia, 4th Edition Butterworths 2002 at [2133].

[96] See TCN Channel 9 v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 158 and TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57; (1963) 180 CLR 130 at 138.