Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor [2012] NSWSC 791 | Case summary

8The above invoices were in common form. Each included a list of items (e.g. port charges, customs clearance fee, quarantine entry fee) for which a fee or cost was incurred. Each included the statement: "Subject to our standard trading conditions". Mr Park accepted that the goods and services to which each invoice referred were received and rendered. 9On 25 September 2011 the plaintiff bought the goods from suppliers in South Korea. 10In September 2011 there was a meeting between Mr Park and Mr Kim when payment of the unpaid invoices was discussed. 11On 26 September 2011 the plaintiff made a payment to PNL in the amount of $4,000. 12On 1 October 2011 K R Sea & Air, the seller's agent, issued a house bill of lading for shipment of the goods which named Samyoung as consignee and TNS Logis Pty Ltd as the agent in Sydney for delivery of the goods. On 7 October 2011 PNL received an ocean bill of lading in respect of the goods issued by Hyundai Merchant Marine Co Ltd (Hyundai) in which PNL was named as the consignee, and the party to be notified. On 13 October 2011 PNL received the freight invoice/arrival tax invoice for the goods from Hyundai for an amount of $542.85 which it then paid. After making the payment it received the relevant delivery order on 14 October 2011 from Hyundai. 13In early or middle October 2011 there was a discussion between Mr Park and Mr Kim concerning the unpaid invoices. 14In October 2011 the plaintiff ceased business with PNL and engaged KAGO Australia Pty Ltd (KAGO) as its customs and shipping agent. No notification was given to PNL that it had done so. 15On about 15 October 2011 Mr Kim was informed by Mr Cho of KAGO that Samyoung had appointed KAGO as its customs agent in respect of the consignment of the goods. Mr Kim replied that PNL would not release the delivery order unless Samyoung cleared the outstanding invoices. 16On 18 October 2011 PNL sent invoice no. 78419 for the amount of $924 to KAGO as the plaintiff's agent for services rendered in respect of collection of the goods. KAGO paid the amount on 20 October 2011 upon the arrival of the vessel at Port Botany. 17By email of 24 October 2011 Mr Kim requested Mr Park to complete a form of personal guarantee for the payment by the plaintiff of the outstanding balance due to PNL in the sum of $26,274.40, within three months. The email included the following: "In regard to the discount (20%-30%) you previously asked us, our company will not accept it. Our company cannot understand the situation where we offer you the freight as well as the discount on the freight price prior to our receipt of your payment. ... The document states, as you promised, that you must pay us the money you owe us within 3 months. Please review it and reply us." 18By email of 26 October 2011 to PNL, Mr Park asserted that KAGO had been appointed as the plaintiff's customs broker, and TNS Logis Pty Ltd for the delivery order, for the collection of the goods. He claimed that it was unlawful for PNL to hold the container. 19By a separate email of 26 October 2011 to PNL, Mr Park rejected the demand for payment in the amount claimed. The email included the following: "2 Currently, our company, Naruone, cannot accept your company, PNL Global Logistics's demand for outstanding payment in the sum of $26,274.40. 3 Our company requested the reduction of the excessive charge you imposed on us and we also requested on numerous occasions for any supporting documents and records that displays reasons for the excessive charge. 4 Our company has been greatly damaged not only by the inspection conducted by AQIS, but also by PNL's delays and incorrect measures. ... 6 Moreover, we cannot tolerate PNL's poor and inexperienced quality work and service anymore. 7 Our company, Naruone, cannot accept PNL's demand for the payment of outstanding due in the sum of $26,274.40. 8 On 15 September 2011, our company advised Mr Sae Jun Kim of your company who visited our office that PNL excessively charged our company and then requested him to provide us with the supporting documents that contains the billing records. 9 We further requested the 30% reduction on the charge as the damages were also caused by PNL's delays and poor and inexperienced service. 10 We advised Mr Sae Jun Kim that if our request is accepted, then our company will make 3 payments in installments [sic] within 3 months. 11 Mr Sae Jun Kim advised us that he would discuss this matter with his company if our company provides him with approximately $5,000.00. 12 On 23 September, our company transmitted $4,000.00 as advised. However, we received no response. Our company sent an email, but were advised that the remaining balance must be paid. 13 Therefore, our company believes that $17,000 should be paid to PNL. 14 Our company will make a full payment within 3 months if we are provided relevant and reasonable explanations. ... 18 We will not tolerate your company's delays and bad quality work and services any more. Accordingly, we look forward to your urgent reply." 20In evidence, the plaintiff accepted (T p 33) that as at 26 October 2011 the amount of $17,000 was due and owing to PNL.

Determination 24Determination of the question whether the conditions were included in the agreement between the parties requires resolution of the conflicting evidence of Mr Park and Mr Kim. Mr Park denied he received, or was ever aware of, the conditions prior to the hearing on 22 November 2011. Mr Kim's evidence was that, consistent with PNL's practice, a copy of the conditions was included with the initial invoice no. 19248 of 18 August 2008, which was mailed to the plaintiff's registered office. 25It is appropriate at this stage to state my findings about Mr Park and Mr Kim as witnesses. Both had extensive commercial experience in their field of business. Each impressed me as a shrewd and astute businessman, who would be alert to protect his, or his employer's commercial interests when appropriate to do so. 26I came to the view that Mr Park was a witness upon whose evidence no reliance should be placed where it was contested, unless it was corroborated by, or consistent with other accepted evidence. I found the evidence he gave in explanation for non-payment of the relevant invoices to be patently implausible, or simply improbable, which generated grave doubts about the truthfulness of his evidence generally. The case he sought to make on this issue, in short, was that the invoices were for amounts which were excessive. He made such an assertion in general terms in his email of 26 October 2011, but provided no particulars. From Mr Kim's affidavits of 21 November 2011 (par 3), 24 April 2012 (par 2), and 20 May 2012 (par 10) it was clear that at the core of these proceedings was PNL's claim that the amount under the invoices was due and payable. 27It was not until his affidavit of 8 June 2012 (par 3) that Mr Park, in an account of his conversation with Mr Kim on about 3 October 2011, referred to unspecified discrepancies and over charging. During the hearing, Mr Park adhered to the assertion that the amount claimed was excessive, yet made no attempt to support it by way of particulars and evidence. In my assessment, his unsupported protestations clouded the credibility of his evidence generally. I find it highly improbable that had Mr Park held a genuine doubt about the validity of the amounts in any of the several invoices when received, he would have promptly brought the item or items to PNL's attention. Furthermore, once the plaintiff commenced these proceedings, it had ample opportunity to adduce evidence in support of a challenge to the lien that the amount for which it was held was excessive, and not due and payable. The failure to do so reinforces the conclusion that the plaintiff's evidence should be rejected. Also, I infer from the lack of complaint at the time the invoices were received, and the failure to identify any excess, that, in truth, the plaintiff accepted the reasonableness of the amounts, and its liability to pay them. 28With respect to Mr Kim, I found he was a truthful witness whose version of events, and of conversations with Mr Park, was not undermined in cross-examination. Where his evidence conflicts with that of Mr Park, I accept it. 29Mr Kim's evidence was that the conditions were sent to the plaintiff with the initial invoice and related documentation, in accordance with usual practice and under his supervision. The invoice included the statement: "Subject to our standard trading conditions". He said (aff 20.05.12, par 9) that PNL's policies and trading terms were not questioned by Mr Park. He was unshaken in cross-examination. I accept his evidence in preference to Mr Park's denial that he received the conditions, or was ever aware of them. 30Accordingly, I find as a matter of high probability that a copy of the conditions were sent with the invoice of 18 August 2008. Furthermore, subsequent invoices, including the unpaid invoices, included the statement earlier referred to. In my opinion, the inclusion of the statement in each invoice was sufficient to alert Mr Park to the existence of the conditions, and to invite him to question PNL if he doubted their scope or effect. Mr Kim's evidence is that this did not happen. Mr Park's silence over the period of business with PNL supports the inference, which I make, that he was either indifferent to, or accepted, the conditions. 31It follows, in my opinion, that under the conditions a particular and general lien was given to PNL over all goods to be held against any particular or general balance or other monies due from the plaintiff to PNL in respect of each transaction. 32The next questions are whether PNL had been authorised by the plaintiff to act as its agent for the collection of the goods in this case, and if not, whether it was entitled to claim a lien over the goods. The plaintiff contended that even if the conditions were incorporated in the past agreements to which the unpaid invoices related, there was no lien over the goods in this case because there was no agreement in respect of this transaction, and the goods were wrongly delivered into PNL's custody. Thus the plaintiff submitted that, as it had paid the money into court against the claims to a lien, the money should be paid out to the plaintiff if PNL failed to establish its right to a lien. 33The documentary evidence, and the unchallenged evidence of Mr Kim (aff 21.11.11, pars 7-16) established the circumstances in which PNL obtained custody of the goods. 34As noted above (par 12) on 1 October 2011 K R Sea & Air, the seller's agent, issued a house bill of lading for shipment of the goods which named Samyoung as consignee and TNS Logis Pty Ltd as the agent in Sydney for delivery of the goods. On 7 October 2011 PNL received an ocean bill of lading in respect of the goods issued by Hyundai in which PNL was named as the consignee, and the party to be notified. On 13 October 2011 PNL received the freight invoice/arrival tax invoice for the goods from Hyundai for an amount of $542.85 which it then paid. After making the payment it received the relevant delivery order on 14 October 2011 from Hyundai. 35On or about 15 October 2011 Mr Cho informed Mr Kim of KAGO's appointment by the plaintiff as its agent for the consignment of the goods. Mr Kim advised him that PNL would not release the delivery order unless the outstanding invoices were paid. Mr Cho then requested Mr Kim to send him PNL's tax invoice and the arrival notice in respect of the consignment. No prior notice had been given to PNL of KAGO's appointment for this transaction. 36On 18 October 2011 PNL sent KAGO tax invoice no. 78419, in usual form, in the amount of $924 for services rendered in respect of the consignment. The invoice was addressed to the plaintiff, and included items for port charges and a delivery order fee. 37On 21 October 2011 the vessel arrived at Port Botany, and KAGO paid the invoice on behalf of the plaintiff. 38On 25 October 2011 PNL transferred the goods to a warehouse without payment of duty, under a bond in customs licensed premises. 39Analysis of the history shows that PNL was sent the delivery order which authorised it to collect the goods. It was after the delivery order had been received that PNL was advised of KAGO's appointment. Mr Cho requested Mr Kim to send a tax invoice and the arrival notice. The freight invoice/arrival notice dated 13 October 2011 is a different document to the delivery order dated 14 October 2011 which is entitled "FCL Delivery Order/Equipment Handover Agreement". There was no evidence that PNL was asked to send the delivery order, or was told that it had no authority to act on it to collect the goods for the plaintiff. 40On about 21 October 2011 PNL collected the goods. The same day its invoice, which included a delivery fee, was paid by the plaintiff's agent. At this point PNL had completed the transaction, and had been paid for services rendered. Although the plaintiff set out to challenge PNL's authority to act as its agent in this transaction, it led no evidence to prove PNL's lack of authority. Some indication of the weakness of the plaintiff's case on this issue appears from the following (T p 152, l 4 - l 24): "ROLLINSON: There's not much by way of explanation, your Honour. Both originate in Korea. Both bills of lading and associated documents all originate in Korea and they seem to originate either from Hyundai, the shipping company, or KR Sea, appointed apparently by the seller's forwarding agents in Korea. They make their own decisions as to how they issue their documents. HIS HONOUR: They would only do it under direction, wouldn't they? ROLLINSON: Yes, and it is a conceivable inference I concede that Hyundai, for example, might have considered that the consignee on their bill of lading should be named as P&L because they had notice from previous shipments that that body appeared to represent Samyoung in Australia. HIS HONOUR: I suppose an alternative, and I haven't got a view about it yet, but there are a range of possibilities, is that had the plaintiff appointed KAGO at the time of these operations it would have ensured that the vendor and KR Sea and so on would have been informed of the new agent. ROLLINSON: Yes. That is another question that is not explored in the evidence." 41In my opinion payment of the invoice in circumstances where PNL's authority to act upon the delivery order had not been withdrawn supports the finding, which I make, that the plaintiff accepted that the services provided by PNL in obtaining delivery of the goods were subject to the same conditions which applied in previous transactions. It follows, in my opinion, that PNL has established its claim to a general lien over the goods in respect of which the funds were paid into court. 42For these reasons I propose to dismiss the further amended summons. It is unnecessary to determine the plaintiff's claim for damages. 43I also hold that PNL is entitled to a declaration in terms of par 2 cross-claim cross-summons that it held a valid lien over the goods. 44Under its cross-claim cross-summons, PNL also seeks judgment against the plaintiff for the balance owing under the unpaid invoices. The plaintiff accepts that an amount of $17,000 is due and payable. It appears that its only objection in respect of the balance is that there was some, unspecified, overcharging. As the objection was without evidentiary support, it must be rejected. PNL is entitled to judgment for the amount unpaid, with interest. 45As to the judgment amount, my prima facie view is that it should be in the amount of $26,274.40. This figure is taken from the statement which is annexure A to Mr Kim's affidavit of 24 April 2012 which records payments made on 19 July 2011 of $243.60, and on 26 September 2011 of $4,000. However as this is not the amount paid into court, the parties should have the opportunity to agree on the correct amount before a final order is made. 46Finally, I propose to order that the funds held in court be paid out to PNL. 47The parties should have the opportunity to agree upon the final terms of the declaration and orders to be made to give effect to these reasons, following which the defendant is to bring in short minutes of orders. 48The question of costs remains outstanding. My prima facie view is that the appropriate order is that the plaintiff should pay the defendant's costs of these proceedings. However, absent agreement, the parties should have the opportunity to make submissions on the issue. 49The parties are directed to arrange with my associate by 4pm 25 July 2012 for the matter to be relisted for the purpose of making final orders and for directions as to any argument as to costs

Naruone Australia Pty Ltd v TNS Logis Pty Ltd & Anor

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Judgment (6 paragraphs)

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Cases Cited (1)