1. The matter came for hearing before me on 28 March 2025. The matter could not continue to be heard by the member who conducted the compulsory conference.
2. At the hearing on 28 March 2025 Mr Singh appeared in person, and was supported by telephone link with an interpreter in the Hindi language at times when he requested assistance. Mr Gayan Shihara Warahenage Don, company director, appeared on behalf of SJ Transport. Insufficient time was allowed for the hearing and the matter was listed for further hearing on 13 June 2025.
3. At the hearing on 13 June 2025 Mr Singh appeared in person and was supported by telephone link with an interpreter in the Hindi language when he specifically requested assistance, for the first approximately 45 minutes of the hearing.
4. Mr Gayan Shihara Warahenage Don, company director, appeared on behalf of SJ Transport.
5. Unfortunately, the phone connection with the interpreter dropped out. At the time this happened, I was very close to finishing taking oral evidence from Mr Singh and turning to the evidence of Mr Don.
6. An onsite employee of the Tribunal, Mr Shaik, offered to join the hearing to assist Mr Singh. Mr Shaik is an accredited translator in the Hindi language but not an accredited interpreter. I explained to the parties with the assistance of Mr Shaik that Mr Shaik is not an accredited interpreter and that it would be very unusual for him to act as an interpreter, and that the other option was to adjourn the hearing.
7. Both parties told me they preferred to continue the hearing and Mr Singh assured me that he would tell me if he felt that the interpreting was not effective.
8. At the conclusion of the hearing on 13 June 2025 I reserved my decision to provide written reasons. In the circumstances I did not think it would be appropriate to provide an oral decision, and there was also not sufficient time to do so.

1. Mr Singh rented a 2010 Toyota HiAce (the Car) from SJ Transport from 26 October 2021. On 16 November 2021, Mr Singh returned the Car to SJ Transport because he had been in a collision with another car earlier that day (the Accident).
2. SJ Transport has not settled an insurance claim in relation to the Accident because Mr Singh has not paid the full amount of the Damage Excess which SJ Transport says it must be paid before taking this action. Mr Singh wants SJ transport to settle the claim in respect to the Accident because he has been sent a letter of demand for payment of $4,952.29 from the insurer of the other party to the Accident. However, Mr Singh does not want to pay anything more to SJ Transport. Mr Singh states that he has paid $1,280.00 towards the Damage Excess and this is all he should have to pay.
3. In his application Mr Singh requests that the Tribunal make a declaration that he does not owe SJ Transport or any other entity any money and claims an unfair contract term. Mr Singh has not sought a declaration that SJ Transport must settle any insurance claim, or sought orders that SJ Transport must refund any money to him.
4. Mr Singh made written submissions on 10 December 2022 about his claim regarding an unfair contract term and the declarations he seeks. Mr Singh stated "I request that I don't owe any money to Sj Transport Service Pty Ltd or any insurance company because I already paid $1280 AUD in total to Sj Transport as normal vehicle excess as the vehicle was insured."
5. In relation to the claim for an unfair contract term, Mr Singh stated that SJ Transport did not mention clearly that the Damage Excess is $5,000.00 and that this amount is too much. Mr Singh withdrew this part of the claim at hearing on 13 June 2025, saying that he thought the term was unfair in the way that term is usually used, not in the legal sense for the purposes of section 24 of the Australian Consumer Law.
6. In its application SJ Transport claimed payment from Mr Singh of a total amount of $8,340.00 which was comprised of $3,720.00 for remaining insurance excess, $3,500.00 for legal costs, and $1,120.00 for rental loss.
7. At the hearing on 13 June 2025 SJ Transport withdrew the claims for loss of rental and legal costs. SJ Transport clarified that they do not seek payment for the insurance excess, unless Mr Singh wants them to settle the insurance claim in relation to the Accident.
8. In effect, SJ Transport seeks a declaration about what amount Mr Singh must pay for SJ Transport to settle any insurance claim in respect to the Accident. This is effectively what Mr Singh is seeking in his application, though he is obviously seeking a different outcome. By the time the hearing of the matter concluded, SJ Transport's counterclaim did not seek any outcome that would not be achieved through the resolution of Mr Singh's claim, and served no purpose.
9. The Tribunal has the power to make declarations under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), with the power being a discretionary power.[1]
10. The questions for the Tribunal to determine are:

(a) What are the terms of the contract between the parties?

(b) Is Mr Singh required to pay any additional amount to SJ Transport for them to settle the insurance claim in respect to the Accident? and

(c) Should the Tribunal make any orders in the proceeding?

1. The terms of the contract between the parties appear to be those contained in:

(a) A copy of an almost blank version of the document titled Agreement No: 6960 purportedly signed by Mr Singh on 21 October 2021 stating that the Damage Excess is $0.00 as Mr Singh contended, of which no copy could be produced; or

(b) The signed version of the document titled Agreement No: 6960 purportedly signed by Mr Singh on 2 November 2021 and the Terms and Conditions of Rental as SJ Transport contended, a copy of which was provided to the Tribunal by SJ Transport on 13 June 2024 (Signed Version); or

(c) The version of the document titled Agreement No: 6960 described at (a) above, and the Terms and Conditions of Rental.

1. Neither party stated that they think option (c) contains the terms of the contract, but for the reasons detailed below, I consider it appropriate to consider that option.
2. The document titled Agreement No: 6960 is a single page document which has boxes to be filled out with words or numbers, or simply 'checked' as the relevant option. The document contains information such as the customer name, the car to be rented, the term of the rental period, and the amounts payable by the customer. Both parties say that some version of this document was signed at some time by Mr Singh.
3. This document contains the following statement in bold and all capital letters:

"BY SIGNING BELOW, YOU: AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT SET FORTH ON THE FACE. PAGE AND IN THE TERMS AND CONDITIONS; ACKNOWLEDGE THAT YOU HAD AN OPPORTUNITY TO READ THE AGREEMENT BEFORE SIGNING...AND AGREE THAT BINDING CONSIDERATION EXISTS, AS FURTHER DESCRIBED IN SECTION 2 OF THE TERMS AND CONDITIONS OF THIS AGREEMENT".

1. This statement refers to the Terms and Conditions of Rental, which is a standard form of additional terms and conditions which more fully set out the rights and obligations of both parties and is 8 pages in length, containing 15 clauses.
2. Clause 8.1(a) of the Terms and Conditions of Rental states that "We will indemnify You and any Authorised Driver for the theft, Damage or Third Party Loss but You must pay up to the Damage Excess shown on the Rental Agreement for each Accident or theft claim" except in certain specified conditions which are not met on the facts of this case.
3. Clause 8.1(b) states that:

the Damage Excess payable under clause 8.1(a) and 8.2 will be charged to Your credit card:

...(iii) for Accidents in which there is also Third Party Loss, after:

• (A) A reasonable estimate of the Third Party Loss has been made;
• (B) A repairer's estimate or tax invoice verifying the amount charged for Damage has been obtained; and
• (C) All documents verifying the Third Party Loss and Damage have been sent to You.

1. What Mr Singh did not appear to appreciate was that, in asking SJ Transport to settle the insurance claim in respect to the Accident on his behalf, he is seeking to rely on clause 8 of the Terms and Conditions of Rental. It is therefore very problematic that he would not depart from the position he took at the hearings before me that the Terms and Conditions of Rental do not apply. If the Terms and Conditions of Rental do not apply, then Mr Singh is liable for all costs in respect to the Accident and SJ Transport is not required to assist him to settle any insurance claim.
2. Mr Singh stated definitively and repeatedly that his position is that SJ Transport has to settle the insurance claim in respect to the Accident for him, and he should not pay any extra money for them to do this. It appears that the outcome which Mr Singh is actually seeking about the proper construction of the contract is that the Terms and Conditions of Rental do apply, and under those terms the Damage Excess is $0.00. Mr Singh is a self-represented party for whom English is not a first language, and it is appropriate that the Tribunal be mildly flexible in its interpretation of his arguments. I will therefore consider this alternative proposition, despite what Mr Singh said at the hearings before me.

Agreed and not agreed facts between the parties

1. The parties agreed at the hearings on the following facts, many of which had been represented differently in the written submissions of the parties referred to above:

(a) On 21 October 2021 Mr Singh made a reservation to rent the Car from SJ Transport.

(b) Mr Singh paid $300.00 as a security bond at the time of booking.

(c) Mr Singh collected the Car on 26 October 2021 and paid $300.00 for one week of rental fees.

(d) At some point in time, Mr Singh signed some version of the document titled Agreement No: 6960. As detailed below, Mr Singh said he signed an almost blank version on 21 October 2021 and SJ Transport said he signed an almost completed version on 2 November 2021.

(e) Mr Singh did not return the Car at the end of the week and so the term of the contract was extended by one week on 2 November 2021 and from this time the weekly rental rate was $280.00; the parties do not agree why the discount was given or when it was agreed to.

(f) Mr Singh did not return the Car at the end of the week and so the term of the contract was extended by one week on 9 November 2021 on the existing terms.

(g) Mr Singh did not return the Car at the end of the week and so on the morning of 16 November 2021 SJ Transport obtained payment for one further week of rental fees.

(h) Mr Singh returned the Car to SJ Transport in the afternoon of 16 November 2021, after the Accident occurred.

(i) SJ Transport direct debited the sum of $700.00 from Mr Singh's bank account after the Accident, as payment towards the Damage Excess.

(j) On 17 November 2021 SJ Transport sent Mr Singh a copy of a document titled Agreement No: 6960 which has been filled in entirely on a computer and which is not signed or dated, and which contains a document titled Terms and Conditions of Rental (Final Version).

(k) Mr Singh has paid a total amount of $2,140.00 to SJ Transport, of which $860.00 was for rental fees, and $1,280.00, including the security bond of $300.00 should be payable towards the Damage Excess.

1. The parties do not agree about many factual claims made by one another. In addition to the issued identified above, the parties do not agree about whether SJ Transport direct debited Mr Singh's account unlawfully, which payments to SJ Transport were direct debited and which were made voluntarily, and how Mr Singh extended the contract and on what dates. I took oral evidence about these matters because they could be relevant to the matters for determination, at least as things stood at the hearing on 28 March 2025.
2. In addition, some of the things the parties raised in written submissions referred to above and about which they do not agree (such as whether Mr Singh was too young to legally rent the Car, or whether SJ Transport misled the insurance company acting for the other party to the Accident about Mr Singh's conduct after the Accident), are not things that the Tribunal needs to determine and so I did not take oral evidence about them.

Mr Singh's evidence about the formation of the contract

1. At the hearings before me, Mr Singh said that he signed a version of the document titled Agreement No: 6960 on 21 October 2021 when he attended the rental office to reserve the Car, and he never signed any other documentation. Mr Singh stated that the document he signed on 21 October 2021 listed his own personal details and the details of the vehicle he would hire and that the rate to be charged is $300.00 per week.
2. Mr Singh said it was agreed verbally on 26 October 2021 when he collected the Car that the rate would be reduced to $280.00 per week if he could not swap the Car for a different car the next week, because the radio was faulty.
3. Mr Singh said that the rest of the document was blank, but also said that the boxes in respect to Damage Excess and LDW (Loss Damage Waiver) both stated $0.00.
4. Mr Singh stated that he does not have a copy of the version of the document he signed on 21 October 2021 because a copy was never given to him.
5. Mr Singh said that he did not read the statement on the document which he signed: "BY SIGNING BELOW, YOU: AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT SET FORTH ON THE FACE PAGE AND IN THE TERMS AND CONDITIONS; ACKNOWLEDGE THAT YOU HAD AN OPPORTUNITY TO READ THE AGREEMENT BEFORE SIGNING...". Mr Singh said he did not ask about any terms or conditions and was not aware that any would apply other than what was on the document he signed.
6. Mr Singh said that the Terms and Conditions of Rental was not provided to him until after he returned the Car and he never signed the Terms and Conditions of Rental. Mr Singh asserted strongly that the Terms and Conditions of Rental are not part of the contract between himself and SJ Transport for this reason.
7. Mr Singh stated that he did not sign the Signed Version. He stated that it is his signature which is shown on the Signed Version, but says he did not attend the rental office on 2 November 2021. Mr Singh offered no explanation why his signature appears on the Signed Version but did not say that SJ Transport had forged the document.

SJ Transport's evidence about the formation of the contract

1. At the hearings, Mr Don on behalf of SJ Transport said that it was not possible that Mr Singh signed any version of the document titled Agreement No: 6960 on 21 October 2024 because this document would not have been produced until the day the Car was picked up.
2. Mr Don stated the document Mr Singh signed on 21 October 2021 would have been a deposit slip which is kept in hard copy in a separate binder. Mr Don did not have a copy available to show the Tribunal.
3. Mr Don said that according to standard practices of the business, an agreement in the form of the document titled Agreement No: 6960 was written up on 26 October 2021 when Mr Singh collected the Car, but that after conducting a search he could not find a copy of this. Mr Don conceded that it was possible that such agreement was not produced at that time even though the standard business practice is that it should have been.
4. Mr Don further said that it is standard practice for the software used by the business to generate an email to clients with a copy of their contract including the Terms and Conditions of Rental at the time that the contract is entered into, and also at the time that the contract ends. Mr Don stated that he cannot produce a record of these emails to Mr Singh because his system does not generate a record of the emails which go out.
5. Mr Don stated that on 2 November 2021 Mr Singh attended the rental office to request a different car and it was at this time that Mr Singh signed the Signed Version.
6. Mr Singh pointed out that Mr Don had maintained, in written correspondence to the Tribunal, that Mr Singh first collected the Car on 2 November 2021 and not on 26 October 2021, and it was not until the hearing on 28 March 2025 that he agreed that Mr Singh collected the Car on 26 October 2021. I also confirmed that that was my understanding from the documents on file and enquired why Mr Don had changed his position.
7. Mr Don stated that he did not change his mind about this, but he found evidence of payment which indicates that the Car was collected on 26 October 2021 so that is why he now says that the Car was collected on 26 October 2021.
8. The Signed Version relevantly states in type that the "time and date out is 02/11/2021 03:32PM" and "time and date in is 03/11/2021 03:32PM" and "due back date and time is 03/11/2021". The weekly rental amount is stated to be $300.00 and the Damage Excess is stated to be $5,000.00.
9. Mr Don stated that all details apart from the hand-written comments in the top right-hand side of the Signed Version were completed at the time of signing on 2 November 2021. The additional comments about the return date and kilometres travelled were noted by hand when Mr Singh returned the Car on 16 November 2021 and then typed into the Final Version sent to Mr Singh on 17 November 2021.
10. Mr Don also stated that the Signed Version is a new rental contract between the parties and the return date was listed as 3 November 2021 because it was hoped that a different vehicle could be found for Mr Singh the next day. This did not happen.
11. I asked why the weekly rental charge in the Signed Version is $300.00 if the agreement was $280.00, which the parties agreed at hearing was the weekly charge from 2 November 2021. Mr Don offered in quick succession multiple different explanations as to why the reduction was offered and eventually stated that this must have been agreed after the Signed Version was completed.
12. I informed Mr Don that if he does not know the answer to something then he should say he doesn't know instead of guessing, because giving multiple inconsistent statements reduces his credibility.
13. Mr Don stated that the Terms and Condition of Rental were shown to Mr Singh at the time that he signed the Signed Version.
14. In support of the claim that Mr Singh signed the document Agreement No: 6960 on 2 November 2024 and was shown the Terms and Conditions of Rental, SJ Transport provided an email from a former employee, Niresh Perera, which is dated 30 July 2024 and which he states:

"upon the request of S.J. Transport Service Pty Ltd I was made to provide this testimony regarding a vehicle handover situation to the client in concern which occurred on November 2, 2021. I state that I handed over the vehicle to the client in concern of this situation on the above date...The client in concern was informed about the insurance excess which is $5000.00 and the security bond...upon completing vehicle handover process as well explanation, the client in concern acknowledged his understanding and agreement of the terms and conditions stated on the company document by signing the official document."

1. I place little weight on the email from Niresh Perera because:

(a) Mr Perera's statement is not in the form of an affidavit or statutory declaration; and

(b) Mr Perera was not available for cross examination at the hearings; and

(c) Mr Perera's statement that the Car was handed over on 2 November 2021 is consistent with the timeline set out in SJ Transport's written submissions prior to the hearing on 28 March 2025, but inconsistent with the timeline agreed at both hearings before me, that Mr Singh took the Car on 26 October 2021.

What are the terms of the contract between the parties?

1. For the Tribunal to make the orders requested by either party, it must be satisfied on the balance of probabilities about what are the terms of the contract between the parties.
2. Both parties have provided conflicting, inconsistent, and confusing oral evidence and written submissions. I do not consider either version of events presented to the Tribunal to be credible, and I am not satisfied that either party discharged their burden of proving on the balance of probabilities what were the terms of the contract between them. Specifically, neither party has proven that the Terms and Conditions of Rental are, or are not, terms of the contract.
3. SJ Transport's version of events, that Mr Singh signed a contract with them on 2 November 2021, is not supported by the evidence. They were unable to produce records to support their version that would ordinarily be capable of production in the ordinary course of business, and the statement of their former employee is of questionable credibility because it is not consistent with the timeline agreed at the hearings before me.
4. Mr Singh's version of events is also not persuasive and he does not assist himself or the Tribunal by arguing for a construction of the contract which does not support the outcome he says he wants to achieve.
5. In saying that SJ Transport must settle an insurance claim on his behalf, Mr Singh is in effect seeking to enforce clause 8 of the Terms and Conditions of Rental. If Mr Singh wants to enforce clause 8 of the Terms and Conditions of Rental against SJ Transport he must accept that the contract between the parties includes the Terms and Conditions of Rental. Without this term of the contract, SJ Transport has no obligation to settle an insurance claim.
6. I make no findings about whether the Terms and Conditions of Rental form part of the contract between the parties. However, I can comfortably conclude that if the parties choose to agree that the Terms and Conditions of Rental do bind them, then clause 8 applies as a whole and this means that Mr Singh must pay whatever sum is the Damage Excess, for SJ Transport to settle an insurance claim.
7. The parties may agree outside the proceeding that the Terms and Conditions of Rental are binding and follow its terms to settle any insurance claim. I will therefore provide guidance on what I think is the correct interpretation of clause 8, if the parties choose to adopt it.
8. The Damage Excess is an insurance excess. Insurance excesses take the form of set amounts, not what is reasonable in given circumstances. Mr Singh does not have the option to decide that he has paid what he considers to be a reasonable amount for the Damage Excess and not pay anything more. The Damage Excess payable under clause 8 of the Terms and Conditions of Rental is either $5,000.00 as stated by SJ Transport, or it is $0.00 as stated by Mr Singh.
9. The oral evidence Mr Singh gave that the Damage Excess is $0.00 is not consistent with his written submissions. Mr Singh had not stated until the hearing on 28 March 2025 that the Damage Excess was listed as $0.00 or was blank on the version of the document titled Agreement No: 6960 he signed. In his Application Mr Singh stated that the Damage Excess 'was not mentioned properly to me before' and in his Points of Claim emailed to the Tribunal on 7 December 2022 he stated 'didn't mention clearly $5000.00 as the vehicle excess amount on the date of the agreement. Mr Singh has also stated in written submissions that the amount of $1,280.00, being the amount that SJ Transport has been paid by him and which is not for weekly rental fees, is payable as an insurance excess.
10. I consider on the totality of the evidence that Mr Singh knows that the Damage Excess payable is not $0.00. If Mr Singh genuinely believed, as he stated at the hearings before me, that the contract states that the Damage Excess is $0.00, this would mean he has overpaid. It would be expected that he would have asked for a refund of amounts he has overpaid. Although Mr Singh has stated that SJ Transport unlawfully direct debited sums from his account, he has not claimed any refund from them.
11. I find it most improbable that SJ Transport would have presented a version of the document titled Agreement No: 6960 which either stated that the Damage Excess was $0.00, or left it blank.
12. I find that the Damage Excess related to the Terms and Conditions of Rental is $5,000.00 and if Mr Singh chooses to pay the Damage Excess he would need to pay a further $3,720.00 to complete payment of the Damage Excess. However, as stated above I make no findings about whether the Terms and Conditions of Rental are binding on the parties and for the reasons stated below I will not make any declarations about whether any amount is presently owing by Mr Singh.

Should the Tribunal make the declarations sought by the parties?

1. The power of the Tribunal to make declarations under section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) is discretionary, should not be exercised in respect to hypothetical situations, and is not to be exercised unless there is some utility in doing so.
2. Mr Singh seeks a declaration that "I don't owe any money to Sj Transport Service Pty Ltd or any insurance company because I already paid $1280 AUD in total to Sj Transport as normal vehicle excess as the vehicle was insured."
3. The Tribunal will not make an order that Mr Singh does not owe money to any entity which is not a party to the proceedings.
4. SJ Transport sought orders that Mr Singh owes them $3,720.00. At the hearings, Mr Don clarified that this money is only sought if SJ Transport settles an insurance claim on his behalf, they do not say that there is money currently owing as a debt.
5. Having heard the oral evidence I am satisfied that what both parties are asking for is a declaration about what Mr Singh owes SJ Transport in order for SJ Transport to settle an insurance claim on his behalf.
6. Neither party has asked the Tribunal to make orders about whether, and if so on what terms, SJ Transport must settle an insurance claim for Mr Singh. Both parties sought orders which are effectively incomplete because I cannot determine the question of whether Mr Singh owes any money to SJ Transport in isolation from the question of whether SJ Transport must settle an insurance claim.
7. I have made findings above that I am not satisfied on the balance of probabilities what the terms of the contract between the parties are. Consequently, even if either party had asked me to make a decision about whether SJ Transport must settle an insurance claim for Mr Singh, I would not be able to decide positively one way or another.
8. I will not make any of the orders, in the form of declarations, requested by the parties.

1. The claim of Akashdeep Singh is dismissed.
2. The claim of Sj Transport Service Pty Ltd ACN:617 789 714 is dismissed.

[1] Section 124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) states that the Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.