On 28 October 2016 Danielle Ni Chroinin (the applicant) lodged an application to the Tribunal seeking an order for payment by Balo Group Pty Ltd (the respondent) of the amount of $1,074.95, for damage done by removalists to a suite of bedroom furniture in a move from Surry Hills to Wolli Creek on 28 October 2015.
The applicant provided an ASIC Current Company Extract for the respondent, which included the registered address. Correspondence from the Tribunal has been sent to that address.
The Tribunal is satisfied that the applicant is a consumer within the meaning of s 79D of the Fair Trading Act 1987 (NSW) (the FT Act), and that the application is a "consumer claim" as defined in s 79E of the FT Act, being for the supply of removalist services on 28 October 2015. The claim was lodged within the time period specified in s 79L of the FT Act, and the Tribunal has jurisdiction to determine the claim.
[2]
The Hearing
There was no appearance on behalf of the respondent at the Group List and Hearing on 16 November 2016. Directions were made on that occasion for the applicant to provide documents on which she intended to rely at a formal hearing to the respondent and the Tribunal by 7 December 2016, and for the respondent to provide its documents by 6 January 2017.
The applicant provided her documents to the Tribunal on 6 December 2016. The documents were photographs of the furniture; a bank statement; copies of text messages and telephone records; email correspondence with Airtasker; and email correspondence with the original supplier of the furniture and with Rodd Blasevi (Hire A Hubby). No documents were received from the respondent.
There was no appearance on behalf of the respondent at the formal hearing on 19 January 2017. There was no explanation or any reason provided for non-attendance. The notices of hearing sent to the respondent's registered address have not been returned. The Tribunal was satisfied that the respondent had been properly served with notice of the hearing and given an opportunity to provide documents or other evidence in response to the claim, and that justice required that the hearing of the matter proceed ex parte. The applicant gave sworn evidence.
After the hearing the Tribunal advised the parties that on consideration of the evidence, the Tribunal considered that the applicant had not established that Balo Group Pty Ltd, as distinct from Louis Balo, was the contracting party for the removalist services provided, and requested further submissions and any additional supporting documentation on that issue. The applicant provided written submissions on 9 February 2017. No written submissions in reply were received from the respondent by the date specified, 24 February 2017.
[3]
The Evidence
The applicant's oral evidence was that she arranged the removalist job through Airtasker, an on line website. She posted details of her request, and was contacted by "Louis B" who quoted her $250 to move her bedroom furniture, an additional wicker chest, and boxes of household goods. She accepted the quote, and the arrangement was to pay through Airtasker, by going in to say the job was completed, and pay. She has not paid the $250.
There were two men who arrived on the day of the job. Neither was Louis B. When communicating with Louis B to arrange the job she had asked him to assist in getting rid of some older furniture: his response (as confirmed in the copies of the text messages provided) was that that would be an extra charge, to be determined on the day of the move. On the day of the move she phoned Louis B who told her to work out the charge with the two men doing the move: they specified $140, which she paid in cash to them.
On contacting Airtasker to make a claim through their insurance she was advised, by email on 7 July 2016, that the insured person was "Louis Balo". On 25 July 2016 Airtasker advised as contact details balo_group@hotmail.com, phone 0420xxxx16. Airtasker advised that while the insured person, Louis Balo, was a registered independent service provider at the time he agreed to the removalist transportation services, he had subsequently sub-contracted the agreed services to an external party who was not a registered user on Airtasker, and therefore the insurance policy would not cover the loss. She emailed Balo Group a couple of times, and in early August 2016 spoke to Steven who wanted the Airtasker contact details. She has had no contact with Airtasker after an email of 11 August 2016. She has made lots of phone calls to try to recover the money.
The evidence of the applicant was that the mobile number provided by Airtasker (0420xxxx16) is the same number used by Louis B when quoting for the job in October 2015; the number answered by either Louis B or "Steven" in her subsequent contacts since then; and one of the contact numbers on the Balo Group website. The other number used by Louis B was 0403xxxx65. In further submissions provided after the hearing the applicant provided details of the registered location of Louis B in the same suburb as the registered address of the respondent; a website search showing the 0403 mobile phone number used by Louis B as that of Balo Group Pty Ltd; and copies of text messages dated 30 January 2017 to that 0403 mobile phone number.
The applicant claims compensation for damage done to the bedhead frame and the two bedside lockers for a bedroom suite comprising a bedframe, two bedside lockers, and a chest of drawers. The photographs provided show torn black plastic and a scrape of the paint on the bedhead, and paint scraped off the top of each of the two lockers. The applicant's oral evidence was that the removalists were very careless, that the lockers were placed on top of each other with no padding, and that there was no padding for the bedhead frame which she had wrapped in black plastic before the move. The other items are OK. The furniture was in pristine condition before the move.
The applicant has provided bank details to support her claim that the cost of purchase of the bedroom suite in August 2013 was $1074.95. The applicant provided correspondence confirming that the paint used for the original furniture is no longer in stock; and a quote from a handyman based on the photographs that "the best option" would be patching and painting the damaged sections, in the order of $250-$400 plus GST, and that repainting all 4 items in the suite would cost more than the purchase price. The applicant's evidence was that second-hand furniture would be in the order of $600; however she wants to replace it with new furniture.
[4]
Consideration
The first issue to determine is whether Balo Group Pty Ltd was a party to the contract with the applicant for the provision of removalist services, and thus the proper respondent to these proceedings. In determining the identity of the contracting parties, the test is what a reasonable observer would conclude from the objective evidence of the communications that led to the entry into the contract, together with the background facts known to the parties: Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154. Evidence of subsequent communications, such as letterhead used to make the requests for progress payments, or account details into which payments are made (Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223) may constitute as an admission of the existence or non-existence of a subsisting contract: Tomko v Palasty [2007] NSWCA 258.
The applicant's copies of text messages relating to the initial quote for the removalist job; her uncontested oral evidence (confirmed by the telephone records) as to the negotiation on the day of the move of the charge for the removal of additional items, during which she phoned Louis B; and his subsequent request for payment for the move through Airtasker on 28 December 2015, supports a finding of the involvement of "Louis B" with the negotiation and performance of the contract. Louis Balo was the Insured Person as notified by Airtasker. The Tribunal is satisfied that on the objective evidence from the text exchanges and phone records and other documentary evidence, the applicant was dealing with Louis Balo in the negotiation and performance of the contract for provision of removalist services, whether or not he subcontracted the actual performance of the work.
While the use of the same mobile phone number as that appearing on the website entries would support a conclusion that Louis Balo is associated with Balo Group Pty Ltd, in the Tribunal's view the evidence does not establish that a reasonable observer would conclude that Louis Balo was contracting on behalf of Balo Group Pty Ltd. The copies of text messages between the applicant and Louis B do not include any such representation; the company's website entries do not identify Louis Balo individually; Louis Balo is not identified in the ASIC extract as an officeholder; and there is no communication from the company in evidence.
The Tribunal is not satisfied that the applicant has established that Balo Group Pty Ltd was a party to the contract for provision of removal services, and thus it is not the appropriate respondent. That conclusion means that the applicant's claim for compensation must be dismissed.
That conclusion means that it is not necessary to determine the other issues on the application. The Tribunal makes no findings on the other issues. However, the Tribunal notes that if the claim is based on the consumer guarantee provisions of the Australian Consumer Law 2010 (the ACL), the consumer guarantee in s 60 that services be provided with "due care and skill" that is implied into consumer contracts is a guarantee that the services will be performed in a "careful, skilful, and workmanlike" manner. The test is an objective test (Mayne Nickless Ltd v Crawford (1992) 59 SASR 490; Read v Nerey Nominees Pty Ltd [1979] VR 47), and all of the facts and circumstances would have to be considered in the context of the application of an objective standard of due care and skill.
On a finding that the services were not rendered with due care and skill, the Tribunal would have power pursuant to s 79N(a) of the FT Act to order the respondent to pay the applicant a specified amount of money, and in that context the guiding principle for assessment of damages is the amount of money that would put the party in the position it would have been had the breach not occurred (Clark v Macourt (2013) 304 ALR 220). The evidence before the Tribunal is that small sections of three elements of the bedroom suite were damaged, and that damage is capable of being repaired. The applicant would need to establish why she would be entitled to the cost of replacement of new for old, rather than the cost of repair.
[5]
Conclusion
The applicant has not established that she is entitled to an order against the respondent for payment of compensation for damage done to her furniture during the provision of removalist services on 28 October 2015. The application is dismissed.
L Pearson
Principal Member
Civil and Administrative Tribunal of NSW
8 March 2017
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 27 April 2017