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[2026] NSWCATCD 56
General information, not legal advice.
NCAT Consumer and Commercial
2026-06-17
K Merrick, Senior Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Yaseen v Portier Pacific Pty Ltd [2026] NSWCATCD 56
Hearing dates: 11 February 2026
Date of orders: 17 June 2026
Decision date: 17 June 2026
Jurisdiction: Consumer and Commercial Division
Before: K Merrick, Senior Member
Decision: The respondent Portier Pacific Pty Ltd is to pay the applicant Mohammad Yaseen the total amount of $10,000 by 28 days from the date of this decision.
Catchwords: CONSUMER LAW – Consumer claim – Part 6A Fair Trading Act 1987 (NSW) – Uber driver – Contract – Termination for breach – Whether conduct of driver justified termination – Damages – Loss of income
Legislation Cited: Fair Trading Act 1987 (NSW)
Cases Cited: Abdalla v Rasier Pacific Pty Ltd [2024] NSWCATCD 7
Acisulu v Rasier Pacific Pty Ltd [2025] NSWCATCD 72
Berry v CCL Secure Pty Ltd [2020] HCA 27
Najafi v Rasier Pacific Pty Ltd [2023] NSWCATCD 153
Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3
Singh v Rasier Pacific Pty Ltd [2024] NSWCATCD 4
Texts Cited: None cited
Category: Principal judgment
Parties: Mohammad Yaseen (Applicant)
Portier Pacific Pty Ltd (Respondent)
Representation: M Yaseen. Self-represented (Applicant)
Dentons, solicitors (Respondent)
File Number(s): 2025/00186328
Publication restriction: Nil
These proceedings involve a claim by a former Uber Eats delivery driver (also referred to as a ‘Delivery Partner’) against Portier Pacific Pty Ltd, an entity within the ‘Uber’ group of companies.
The applicant’s claim is based upon allegations that:
In breach of the contract between the parties the respondent wrongfully deactivated the applicant’s Uber Eats account; and
the respondent did not provide the applicant with a fair appeal process or undergo due process.
The applicant’s claim is for an award of damages in the sum of $10,000 for loss of profit arising from the deactivation of his Uber Eats account.
Although the prospect of reinstatement or reactivation of the applicant’s Uber Eats account was raised in submissions filed by the applicant on 4 November 2025, the applicant stated in submissions filed on 5 December 2025 that he does not seek reinstatement ‘unless the Tribunal considers it appropriate’. In evidence at the final hearing before the Tribunal the applicant confirmed that after more than 3 months out of work following deactivation of his Uber Eats account, he now has a new job, and the applicant did not press the claim for orders for reinstatement.
The hearing took place on 11 February 2026.
At the hearing the applicant appeared in person with the assistance of an interpreter.
The respondent was represented by a solicitor, Ms Podinic of Dentons.
The applicant relied on the following:
A bundle of materials lodged with the Tribunal on 27 June 2025 which included points of claim and annexures ‘A’ to ‘I’, including a statutory declaration by the applicant (annexure ‘C’).
further submissions lodged with the Tribunal on 5 December 2025 which also attached a number of screenshots.
further oral evidence and submissions by the applicant at the hearing.
The respondent relied on the following:
a bundle of documents ‘entitled ‘respondent’s submissions dated 15 August 2025’ lodged with the Tribunal on 18 August 2025 which included points of defence, submissions, and copies of two earlier decisions of the Tribunal referred to in those submissions;
a bundle of documents ‘entitled witness statement of J Ye dated 15 August 2025’ lodged with the Tribunal on 18 August 2025 which included a chronology, witness statement of Jackie Ye, Senior Strategy and Operations Manager of Uber Australia with attachments. Ms Ye did not appear at the hearing.
There have been a number of reported decisions of the Tribunal dealing with similar disputes between Uber entities and Uber drivers and Uber Eats delivery partners, including Najafi v Rasier Pacific Pty Ltd [2023] NSWCATCD 153, Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3; Singh v Rasier Pacific Pty Ltd [2024] NSWCATCD 4, Abdalla v Rasier Pacific Pty Ltd [2024] NSWCATCD 7 and Acisulu v Rasier Pacific Pty Ltd [2025] NSWCATCD 72.
In each of these decisions, the Tribunal held the relationship between the relevant applicant and the respondent satisfied the requirements for a consumer claim in respect of which the Tribunal has jurisdiction under Part 6A of the Fair Trading Act 1987 (NSW) (FT Act).
This application was filed on 9 May 2025, less than 3 years from the date that the applicant’s access to his Uber Eats account was deactivated, and within the limitation period prescribed by s 79 of the FT Act. As such these proceedings have been commenced within the applicable time limit for a consumer claim, and the Tribunal has jurisdiction to hear and determine these proceedings.
The parties first entered into an Uber Eats – Delivery Person Agreement (DP Agreement) in April 2023 and the applicant signed up and created an account on the Uber Eats app through which he received requests to provide food delivery services from merchants to customers.
On entering into the DP Agreement the parties agreed to be bound by Uber’s Community Guidelines Australia and New Zealand, and Uber’s Deactivation Policy (entitled ‘Understanding why driver partners and delivery people lose account access.’)
The applicant subsequently entered into a Pack and Deliver – Delivery Person agreement in July 2023, a second Uber Eats – Delivery Person Agreement in February 2024, and a further Pack and Deliver – Delivery Person agreement in March 2024.
The applicant commenced providing delivery services, utilising the Uber Eats app, in mid July 2023. The applicant continued to provide delivery and transport services until 10 November 2024 when the applicant’s Uber Eats account was deactivated by the respondent.
According to the respondent, in the period prior to deactivation of the applicant’s Uber Eats account, Uber received 66 individual notifications from customers claiming that they did not receive orders that the applicant had accepted and been assigned to deliver. On each occasion the respondent concluded that the customer’s claim was valid, and the respondent provided the customer with a refund.
The respondent’s evidence in respect of these ‘failed deliveries’ has been provided in the form of Ms Ye’s statement dated 15 August 2025, which attaches various records created by the respondent and seeks to explain their meaning and significance. Ms Ye was not the person who made the decisions to accept customer complaints or to deactivate the applicant’s account. Ms Ye states that her statement is based on her review on or about 12 August 2025 of Uber’s internal records and enquiries that she made within Uber for the purpose of these proceedings. As such her evidence may be regarded as ‘surrogate evidence’ as that term was used by the Tribunal in Rehman at [178]. The respondent’s evidence is considered further below.
The first occasion of a complaint of a ‘failed delivery’ was 19 July 2023, less than a week after the applicant signed up to his account, when, according to the statement of Ms Ye, the applicant was requested to collect from a merchant in Johnston St Annandale and deliver to Kent St Sydney. A google maps record (‘chronicle trip data’) tracking the applicant’s trip was included in the respondent’s evidence. It shows that the applicant travelled from Johnston St Annandale to the destined address in Kent St Sydney. According to Ms Ye the chronicle trip data illustrates that the applicant did not deliver the order to the requested address and instead marked the order as fulfilled some distance further along Kent St.
In response to this material, the applicant stated in his evidence that it was quite possible that he ‘clicked’ to confirm delivery once he was underway after having completed the delivery, which would explain the distance. He also observed that the app would sometimes ‘glitch’ with a resultant lag in the confirmation of delivery being recorded in the system. The applicant further stated that there may be instances where a customer falsely reports a failure to deliver, or someone else takes the order (for example when it is delivered to the foyer of an apartment complex). The applicant was unable to be more specific in his response, which is hardly surprising given that the event occurred more than 2 ½ years prior to the hearing. The applicant denied that he ever failed to deliver an order in accordance with the request as set out on the app.
The Tribunal notes that there is no evidence that the respondent informed the applicant at the time that they had been notified by a customer that the order had not been delivered, nor had the respondent asked the applicant for an explanation. Nor does the evidence include a copy of the order or delivery details, or the notification from the customer, or any other communications between Uber and the customer.
“it must be recognised that complaints are not made to Uber under circumstances where (1) the passenger is obligated to be truthful, (2) there may be matters which warrant clarification, (3) the Driver cannot question the complaining passengers, and (4) the Driver may have difficulty knowing which passenger complained. Plainly, those are matters which any presiding member will need to take into consideration when assessing the evidence of any complaint. Briginshaw v Briginshaw [1938] HCA 34 is commonly cited in support of the proposition that the evidence required to prove an allegation will depend on how serious is that allegation. All that can be said is that, in circumstances where a driver is facing a loss of livelihood, the quality of the supporting evidence may be an issue requiring consideration.”
The high point of the respondent’s position is that the respondent received 66 complaints about the applicant, and that viewed collectively this must suggest a pattern of behaviour on the part of the applicant. However, of these 66 alleged ‘failed deliveries’, the applicant only received 4 notifications, that did not contain any level of detail of the alleged failed deliveries, and that even on the respondent’s evidence collated for the purpose of the hearing before the Tribunal, cannot readily be linked back to specific events.
Again, referring to observations of the Tribunal in Rehman at [176] – [177]:
“[176] It is difficult to understand why the Driver was finding out details of some complaints for the first time when Uber lodged the documents upon which it intended to rely at the hearing. If those details can be provided shortly prior to the hearing, there does not appear to be any reason why those details cannot be provided shortly after the complaint is first made.
[177] A person faced with the prospect of being fined for speeding is entitled to know when and where that is said to have occurred. In like manner, a person faced with the prospect of losing their source of income must be entitled to have sufficient information to be able to identify the relevant user who is making the complaint. Even accepting there may be an issue of privacy due to a need to not disclose some details, such as the residential address of the person making the complaint, there must be a balance between the rights of the user and the rights of the driver.”
Applied to the present case, it is difficult to understand why the applicant was not informed, on a timely basis and in sufficient detail, of complaints which the respondent now asserts establish a pattern of behaviour amounting to fraud and provide a basis for deactivation. Faced with the risk of deactivation, the applicant was entitled to be alerted to events which the respondent may subsequently wish to rely on, and to be so informed at a time when he was in a position to consider, respond to and potentially challenge the respondent’s view of the events. This did not happen, and consequently the respondent did not have the benefit of an explanation from the applicant when considering the significance of the 66 complaints.
Further, although Ms Ye states in her evidence that the applicant’s misconduct (that is the ‘detected fraudulent activity between 16 July 2023 and 8 November 2024) was assessed by Uber’s community operations team, the review material has not been included in the respondent’s evidence. As such the Tribunal does not have the benefit of an insight into the information relied on or the process of consideration and analysis undertaken by the community operations team, and must make findings, including findings as to the review process, based on the materials before it.
According to the respondent, between 11 January 2024 and 26 September 2024 the respondent received 8 user complaints in relation to the applicant, ranging from ‘discriminatory’ conduct (no further explanation provided by the customer) and ‘verbal abuse’ (saying ‘are you serious mate’ and hanging up on a customer after finding that the app had sent the driver to the completely wrong address), through to not delivering as per the user’s instructions (4 complaints by Woolworths Metro between 21 April 2024 and 9 July 2024 re leaving the order outside the building), and on one occasion (26 September 2024) using a different vehicle.
Except for the so-called ‘discriminatory behaviour’ complaint (11 January 2024) where the user did not further expand on the complaint in their notification to the respondent, the respondent notified the applicant of each of these complaints on the same day or the day following receipt of the customer complaint, and warned him that continued similar feedback may result in the applicant’s access to Uber-direct being reassessed. Although not overly detailed, the notifications to the applicant contained sufficient information to enable the applicant to identify the event that had resulted in the complaint.
As to the Woolworths Metro deliveries there were 4 complaints over a confined 2 month period, the last of which was more than 4 months prior to deactivation of the applicant’s Uber account. It may be assumed, based on the lack of further complaints from Woolworths Metro that either the applicant ceased accepting deliveries for Woolworths Metro, or Woolworths Metro had no further complaints about the applicant after July 2024.
As to the complaint that the applicant used the wrong vehicle, the applicant denied that this was the case, and asserted that he never used the wrong vehicle and it was quite possible for a customer to identify a different vehicle and assume that it was the vehicle that the applicant had used. This is the only complaint included in the respondent’s materials of ‘using the wrong vehicle.’ No ‘pattern’ of behaviour or ‘repeat’ behaviour is identified or alleged.
As to the ‘verbal abuse’ complaint, this was a one-off complaint concerning conduct some 6 ½ months prior to deactivation. Again no ‘pattern’ of behaviour or ‘repeat’ behaviour is identified or alleged.
On 10 November 2024 the applicant’s Uber account was deactivated. The applicant was notified on the same day as follows: “Hi Mohammed you have lost the ability to deliver using the Uber eats app because of a fraudulent activity or abuse. We*’ve received repeated reports from several customers that their orders were not received although you marked the orders as complete. Your agreements with Uber and if applicable in your country Uber’**s community guidelines both prohibit fraudulent activity. You can review your account with Uber in the contracts section of your profile. We understand this news may be upsetting. If you believe this is an error, you may request an appeal by signing into the App or accessing the help page.*”
Ms Ye states in her evidence that for the purpose of this proceeding she reviewed the internal review of the applicant’s deactivation by Uber’s community operations team, the internal case management of Uber’s deactivation decision and the internal assessment that was conducted by Uber’s community operations team. None of those materials are included in the materials before the Tribunal, and Ms Ye was not herself involved in any of those stages and cannot speak directly to those events. As such, and as previously noted, the Tribunal’s insight into the process which Uber followed in determining to deactivate and not reinstate the applicant’s Uber account is thus limited, and the Tribunal must form its views based on the materials before the Tribunal, which are referred to further below.
The reason given in the notification to the applicant ‘We*’*ve received repeated reports from several customers that their orders were not received although you marked the orders as complete’ appears to be based on ‘failed deliveries’, rather than ‘user complaints’. The reference to ‘fraudulent activity’ is presumably a reference to the suspicion implied in the October 2024 notifications that the applicant may have retained the delivery items.
In his evidence before the Tribunal the applicant stated that he was in a state of shock when he received this message. A few days later, on 16 November 2024 the applicant communicated with the respondent seeking a review of the deactivation of his Uber account. The applicant asserted that any accusations of customer orders not being received despite being marked complete were false and inaccurate. He noted that no evidence had been requested from the applicant’s side. He noted that he had been given no notice or opportunity to appeal.
The respondent replied: “Thank you for taking the time to provide feedback about this. I would like to confirm that we are treating this seriously. A member of our team will be in touch soon to give you an update. In the meantime, if you feel additional information could be helpful, please reply to this message. We*’**ll be sure to follow up.*”
The applicant claims that the respondent wrongfully terminated his Uber Eats account. The applicant claims that the respondent deactivated his account without evidence, without procedural fairness, and in breach of the DP agreement clause 14, which states that Uber may terminate only in circumstances of material breach, violation of law or other specified grounds.
The applicant further asserts that the contractual right to terminate must still be exercised reasonably, in good faith, and based on evidence, and that Uber did not meet this standard.
The applicant claims monetary damages of $10,000 representing an estimate of the profit lost to the applicant after being wrongfully terminated without justification.
In its points of defence, the respondent says that it acted in accordance with the terms of the DP agreement and Uber’s policies. The respondent asserts that it permanently deactivated the applicant’s Uber account, because it had determined that the applicant’s behaviour was in breach of the DP agreement clause 14.2(b)(ii) and Uber’s policies, on the basis of the repeated reports from users of failed deliveries and the eight separate user complaints.
In its submissions, the respondent further asserted that the applicant had engaged in behaviour that was considered by the respondent to be a safety risk in breach of the terms of the agreement between the parties.
The respondent denies the applicant’s entitlement to $10,000 in damages or any sum. The respondent further submits that any claim of loss is subject to clause 12 of the DP agreement concerning limitation of liability. Clause 12 contains a limitation of liability but does not override rights under the applicable law including the Australian Consumer Law.
In determining the applicant’s claim the issues which require consideration are:
Did the respondent breach the DP Agreement by deactivating the applicant’s Uber account?
If so, has the applicant suffered loss or damage caused by that breach, and should a monetary sum be awarded in respect of that loss or damage?
If the respondent unlawfully terminated the DP Agreement, then its action constitutes a repudiation.
The respondent submits that it lawfully terminated the DP agreement pursuant to clause 14.2(b) (equivalent clause 14.2(b) of the pack and deliver agreement) because the applicant was in violation of Uber’s community guidelines.
Clause 14.2 of the DP Agreement relevantly provides as follows:
14.2 Termination by Portier Pacific and Uber
(a) … Uber or Portier Pacific may, acting reasonably, terminate this agreement in its entirety by giving you 30 days prior notice of termination, for any legitimate business, legal or regulatory reason.
(b) Uber may also immediately restrict or remove your access to the Uber Driver App, and provide you with written notice of the restriction or removal, if:
(i) you commit a material breach of this Agreement; or
(ii) an act or omission by you, in Uber’s reasonable judgement, is in violation of the Community Guidelines or has the potential to cause issues that could detrimentally impact the reputation good name or brand of Uber Porter Pacific or any of their affiliates including any Uber names marks or works including matters of safety.
(c) Uber may temporarily restrict your access to the Uber driver app if it or an affiliate is investigating an alleged breach referred to under section 14.2(b)(i) or (ii). There may be circumstances in which Uber is unable to provide you with information about the alleged breach whilst an investigation is ongoing either by Uber and or a third party such as the police.
The 2022 Community Guidelines set out various matters including information about the meaning of ‘fraud’, ‘treat[ing] everyone with respect’, ‘threatening and rude behaviour’, ‘vehicle information’ and ‘how Uber enforces our guidelines.’
The Deactivation Policy provides reasons about the most common reasons why delivery persons lose access to their accounts, and outlines the respondent’s case review processes.
The Tribunal considered the meaning and application of essentially identical terms in Singh, and held as follows:
[142] The written terms do not contain any definition of what is a “material breach,” nor of what constitutes a review of a decision to suspend or terminate by way of permanent deactivation from access to the Uber app.
[143] Those contractual terms need to be given meaning. The respondents has a separate contractual right to terminate on “no grounds” on 30 days’ notice. However, in this matter, the relevant issue is whether the respondents had a proper legal basis for terminating the contract due to “material breach.;” and whether it conducted a genuine review. If the applicant was not in material breach, Uber was not justified in terminating the Services Agreement and it has repudiated the contract. If the termination is legally justified, the applicant is not entitled to damages for breach of contract.
…
[145] In this matter, the Tribunal is satisfied that the phrase “material breach” does not mean any breach, but a sufficiently serious breach (either by way of number of breaches or the seriousness of a single breach such as, for example, if a driver was alleged to have committed a serious criminal offence). Further, it is necessary for there to be an implied term that any internal review of the decision to deactivate is conducted with genuine consideration of the merits. Otherwise, the review process is meaningless. It is Uber who has identified in its contractual provisions that a driver may seek review of the decision to deactivate (permanently or temporarily). The term review has no meaning if it is construed in a way that means that Uber is not required to have any genuine consideration of the drivers response to the alleged breaches by the driver of the terms of the agreement (including the Community Guidelines).
[146] It was open to Uber to rely upon the ‘no grounds’ termination provision under cl. 16(a) of the Services Agreement giving the driver 30 days’ notice. However, it has chosen to rely on the “material breach’ immediate deactivation under cl. 16(b), with the driver having the contractual right to seek an internal review.
[147] When assessed objectively, the terms of the contractual agreement require that the following occur before a termination is legally justified under cl. 16(b) of the Services Agreement:
(1) There is a material breach of the terms of the agreement, which includes the Community Guidelines.
(2) The breach is sufficient, by reason of either the number of breaches for the seriousness of the particular breach to justify termination.
(3) If a review is conducted because the driver has requested a review or reconsideration, that review must be conducted in a way that genuinely considers the reasons and explanation put forward by the driver as to whether or not there is a material breach or breaches sufficient to justify termination of the agreement. Accordingly, whether or not a “material breach” has occurred, and an internal review of the decision to deactivate access to the app must involve consideration of the following matters:
(a) The nature of the alleged breach.
(b) The number of alleged breaches.
(c) The number of the alleged breaches in comparison to the number of trips performed by the driver and the drivers overall rating by passengers.
(d) The drivers explanation in response to the alleged breaches.
[148] In construing the terms of the contract, including implying into the contract requirements for a genuine review of the decision to do to deactivate on the merits, the Tribunal is not suggesting that the terms of the contract, or business efficacy, require an extensive or elaborate review process of a type equivalent to a review of an administrative decision by a government department. However, there must be some minimum or threshold standard for the efficacy of a review, otherwise the contractual term is devoid of any meaning.
[149] The contract between the parties is a commercial agreement. It is arguable that the bargaining power of the parties is unequal. However any legal provisions dealing with legislation that provides a remedy to unconscionable conduct, or unfair contract terms, are separate issues to interpretation of terms of the contract and whether or not the contract has been breached.
[150] Further, just as the safety and comfort of passengers is important, so is the decision by the respondents whether or not to terminate the Services Agreement based on “material breach” by the driver. In this matter, the applicant had been working for over 3 years full time driving for Uber, and the decision to terminate caused his income to immediately cease.
[151] In Rehman v Rasier Pacific Pty Ltd [2024] NSWCATCD 3 (Rehman), Ellis SC SM did not set out in detail contractual principles in respect of interpreting the terms of the contract. However, the Senior Member made the following comments at [143]:
“It is convenient to here note that Uber did not contend that the words “in its sole discretion” in the Agreement meant that any decision as to deactivation was a matter for Uber, did not have to be reasonable, and could not be reviewed. Indeed, the fact that Uber suggested its decision was reasonable provide support the two points: first, that the decision to deactivate must be made on reasonable grounds; secondly, that the decision to deactivate can be reviewed by the Tribunal.”
[152] Although broad comments regarding “reasonable grounds” may be apt to conflate administrative law principles with contractual principles, the approach taken by the Tribunal in this matter to construing the terms of the contract is not obviously inconsistent with the approach taken by Ellis SC SM in Rehman. If there are no reasons provided as to why the review sought by the driver was rejected, it is difficult to conclude that a genuine review occurred.
…
[160] The Tribunal is satisfied that the applicant has proved, on the balance of probabilities that he was not in breach of an essential term of the contract or had committed sufficient breaches of non-essential terms as of August 2023. The respondents were not justified in terminating the Service Agreement. Accordingly, the respondents have repudiated the agreement, and the applicant is entitled to damages if loss caused by the breach is proved.
The respondent submits that it lawfully terminated the agreement on the basis of conduct of the applicant in breach of the DP Agreement and Community Guidelines.
The conduct of the applicant which the respondent refers to in its submissions is ‘failing to complete delivery requests, discriminatory behaviour, verbal abuse, using a different vehicle than what was registered under the applicant’s use app account, and not delivering users orders per instructions.’
As noted earlier in these reasons, the reason given to the applicant at the time he was notified of his deactivation was ‘repeated reports from several customers that their orders were not received although you marked the orders as complete’. In the absence of contemporaneous evidence from the respondent as to its internal review and decision making process of the applicant’s case, the Tribunal must assume that the reason given by the respondent in its notification to the applicant at the time of the decision was the reason relied on by the respondent at the time it made its decision, and that the further matters now raised did not form part of the basis for the respondent’s decision to deactivate. Indeed, had those further matters formed part of the basis for the decision to deactivate it behove the respondent to so inform the applicant, so that he might be in a position to respond.
As such the Tribunal does not accept that the ‘user complaints’ formed part of the basis for the respondent’s decision to deactivate the applicant’s account.
In any case, in so far as the respondent seeks to also rely on the 8 user complaints to justify the decision to deactivate, the Tribunal is not satisfied that alone or collectively they represent a material breach or provided a basis to terminate. As noted earlier in these reasons, the customer did not provide any information as to the so called discriminatory behaviour, the Woolworths Metro complaints about not delivering per instructions occurred over a confined period and seemed to have been resolved and were no longer a cause for complaint many months prior to termination, the ‘use wrong car’ complaint was a one-off complaint that the respondent denied, and the ‘verbal abuse’ complaint was also a one – off complaint that occurred many months prior to deactivation.’
As to the respondent’s reliance on a pattern of ‘failed deliveries’, for the reasons set out earlier, and noting further that there is no evidence of what decision making process took place when the applicant’s account was deactivated in November 2024, the Tribunal finds that the respondent’s evidence in support of its conclusion that the driver fraudulently failed to deliver on 66 separate occasions and engaged in a pattern of behaviour that justified deactivation is not compelling. The Tribunal is not satisfied on the evidence before it that the applicant had committed a material breach of the DP Agreement or that the breach was sufficient to justify termination.
The orders that the Tribunal may make in determining a consumer claim wholly or partly in favour of a claimant set out in FT Act s79N. They include an order that requires a respondent to pay to the claimant a specified amount of money.
In making orders in respect of a consumer claim, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim (section 79U(1)).
Damages for breach of contract are assessed on the basis of a monetary amount that puts the innocent party back in the position they should have been in, but for the breach.
In this matter, but for deactivation by the respondent in breach of the DP Agreement, the applicant would have continued to utilise the Uber Eats app and it may be reasonably assume that he would have continued to earn at a level consistent with his average earnings prior to deactivation. The applicant has provided evidence that he was earning approximately $1,224.68 per week on average prior to deactivation, and that following deactivation he was out of work for more than 3 months. Over a 3 month period this loss of earnings amounts to a figure in excess of $16,000.
The applicant’s earnings are before expenses. Expenses (for example fuel) that would not be incurred once the applicant was no longer operating as a delivery partner are in effect ‘saved’ or ‘avoided’ and should be offset or deducted for the purposes of calculating the applicant’s loss.
Even though the applicant did not provide evidence to verify his expenses, the Tribunal is satisfied that there is sufficient evidence for the Tribunal to assess loss, without engaging in the process of a purely speculative “guess”, and that based on average gross earnings exceeding $16,000 over a 3 months period, the applicant’s income after expenses would have exceeded $10,000 over the 3 months following deactivation.
Under clause 14.2(a) of the DP Agreement, the respondent was entitled, acting reasonably, to terminate the agreement in its entirety by giving 30 days prior notice of termination, for any legitimate business, legal or regulatory reason. The respondent submits that should the Tribunal find in favour of the applicant, the measure of damages should be limited to approximately $5,059.33 being the amount of earnings that the applicant earned in the 30 days prior to deactivation of his account.
The respondent has not provided evidence or further submission as to the circumstances in which it would have elected to terminate the applicant’s account relying on clause 14.2(a) – for example it has not pointed to any legitimate business, legal or regulatory reason that may have prompted the respondent to terminate the applicant’s account.
In Berry v CCL Secure Pty Ltd [2020] HCA 27 the High Court (Bell, Keane and Nettle JJ) observed that:
[37] In accordance with general principle, where a contract is terminated for anticipatory breach, or, as in this matter, terminated as a result of misleading or deceptive conduct, a claimant claiming damages for loss of the contract bears the onus of establishing on the balance of probabilities what would have been the value of the contract to the claimant had it not been so terminated. The value is to be determined objectively, and thus, where the lost contractual rights were by their terms capable of being rendered less valuable in certain events, the assessment must take account of the possibility that those events might have eventuated. More generally, if there are two or more ways in which a wrongdoer could lawfully have performed a contract which is rescinded for anticipatory breach, it is to be assumed that, but for rescission, the wrongdoer would have adopted the mode of performance most beneficial to the wrongdoer. And so, if the contract was lawfully terminable at the instance of the wrongdoer, it must be valued accordingly and, subject to the evidence, not as if it were bound to continue.
[38] So to say, however, does not mean that the mere existence of the wrongdoer’s right to terminate the contract operates automatically to restrict the damages that can be awarded. The question is whether, absent rescission, the wrongdoer would have terminated the contract. And to decide that requires the court to have regard to all the facts and circumstances of the case, including events extraneous to the contract that were within the control of the wrongdoer, such as the need to retain third party custom. As Diplock LJ observed in Lavarack v Woods of Colchester Ltd, one must not assume that a wrongdoer would cut off its nose to spite its face by controlling such events so as to reduce its legal obligations to the claimant and incurring greater loss in other respects. By parity of reasoning, in this matter, it would be wrong to assume, without proof, that Securency would have been prepared to give a lawful notice of termination to Dr Berry and GSC before June 2010.
[39] Furthermore, although a claimant bears the burden of proof in the sense of the ultimate burden of establishing its case on the balance of probabilities, the burden of proof in the sense of introducing evidence is liable to shift constantly “according as one scale of evidence or the other preponderates”. Consequently, where, as here, it is established on the balance of probabilities that a wrongdoer purposely chose to achieve a certain result by means of a calculated deceit, the natural inference is that the wrongdoer was not and would not have been prepared to bring about that result by lawful means. As the majority observed in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, the conventional perception is that members of our society do not ordinarily engage in fraudulent conduct. That perception, which underpins the need for clear evidence of fraud, implies that a person would not intentionally mislead another without sufficient cause to do so. So, in the absence of contrary evidence, it may be inferred that the reason for engaging in the fraud was sufficient to dissuade the fraudster from proceeding by lawful means. The evidential burden thereupon shifts to the fraudster to adduce evidence sufficient to establish that, if it had not acted as it did, it would have been prepared to bring about the same result by lawful means. And in the absence of such evidence, it is fair to infer that there was not a realistic possibility of that occurring.
[69] Prima facie discharge of the onus of proving that the Agency Agreement would have continued in existence required no more of Dr Berry and GSC than that they point to the provision for automatic renewal in the Agency Agreement. The “mere existence” of contractual rights to terminate the Agency Agreement was insufficient to displace the inference that the Agency Agreement would have continued in existence which arose from that provision for its automatic renewal. The practical burden of introducing evidence to show on the balance of probabilities that the Agency Agreement would have been terminated through the affirmative exercise of a contractual right to terminate fell to Securency.
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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
Yaseen
Portier Pacific Pty Ltd
Based on the materials before the Tribunal, it is difficult for the Tribunal to be satisfied as to the validity of the customer’s complaint, or to be satisfied as to Uber’s conclusion that the applicant ‘failed to complete’ this delivery service. However, based on the materials before the Tribunal, the Tribunal notes that the complaint was not brought to the attention of the applicant at the time, and that prima facie there would be no reason for the applicant to travel all the way from Annandale to the delivery address in Kent St other than for the purpose of carrying out the delivery to the specified address.
The respondent asserts that between 19 July 2023 and 27 August 2024 the applicant failed to deliver on 56 occasions. Ms Ye’s statement asserts: “Between 16 July 2023 and 8 November 2024 Uber detected fraudulent activity by the applicant in that the applicant had not fulfilled delivery services by not completing 66 orders that had been assigned to him and which he accepted.”
Save in respect of 9 occasions, the respondent’s materials do not include a copy of the notification from the customer, or any other communications between Uber and the customer. Nowhere in the materials has the respondent included details of the customer orders or delivery instructions. Further, it seems that despite apparently being contacted by customers on 56 occasions over a period of more than 1 year and Ms Ye’s description of these unfulfilled delivery services as ‘fraudulent activity’, the respondent did not inform the applicant on any of these occasions that it had received a customer complaint, or that it suspected (or so it seems from Ms Ye’s statement, had concluded) that there was fraudulent activity involved, and did not request an explanation from the applicant. Of course, not having requested an explanation from the applicant, the respondent was also unable to give consideration to any explanation that the applicant may have offered at the time as to the circumstances giving rise to the complaint.
As to the 9 occasions where the communications with the customer have been included in the respondent’s materials, on each occasion the respondent has included in its reply to the customer words to the effect: “After investigating the issue we have refunded the full order amount... Please be assured that we are taking steps to prevent such incidents from occurring in the future. … Our system provided this response based on your issue.”
It is not apparent what ‘investigation of the issue’ these responses refer to. From the customer’s point of view, it might be assumed that the respondent had made enquiries as to what happened to the delivery – the most obvious enquiry being an enquiry of the delivery driver. However as already noted, on the 56 occasions when it received a customer notification of a ‘failed delivery’ the respondent did not contact the applicant to ascertain what had happened to the delivery.
In Ms Ye’s statement she states: “Upon my review of the user*’*s Uber app account information and data there was no information or indication of fraudulent behaviour on the part of the user at the time of the said trip. As such the Uber community operations team provided the user a refund.” (Ms Ye’s reference to ‘user’ appears to be a reference to the customer, rather than the applicant). However, the Tribunal notes that Ms Ye was not the person who conducted the review that gave rise to the refund to the customer. The reference in Ms Ye’s statement to ‘the user’s Uber app’ and ‘my review’ appear to be references to a review by Ms Ye in August 2025 of the customer’s Uber app account for the purpose of her statement in this proceeding, with the balance of her statement representing her conclusion as to what the community operations team did at the time, having (presumably) reviewed the same information and reached the same conclusion as Ms Ye. It seems that this must be the investigation to which the reply to the customer was referring – that is an investigation by the community operations team into whether the respondent had information as to fraudulent behaviour on the part of the customer so as to provide a basis to reject the customer’s claim. There seems to have been no investigation into the circumstances of the delivery, or the conduct of the applicant. At the hearing before the Tribunal, the respondent submitted that it can’t investigate every customer complaint. Provided the respondent is not satisfied that the claim by the customer is false, it will provide a refund to the customer.
Again, it is difficult for the Tribunal to be satisfied as to the validity of Uber’s conclusion that the applicant ‘failed to complete’ each of these delivery services, in circumstances in circumstances where:
the respondent’s evidence before the Tribunal as to the delivery service (or failure to deliver) is limited to ‘trip chronicle data’,
the only evidence before the Tribunal as to the nature and scope of the reviews conducted by the respondent at the time that complaints were apparently received from customers is evidence provided by an employee of the respondent who was not engaged in those reviews,
(based on the content of 9 communications that are included in the materials) the only investigation which the respondent seems to have conducted at the time was into the customer’s Uber app account and whether the customer’s claim was likely to be false, and,
somewhat surprisingly, the applicant was not notified of the complaints at the time, even though the respondent now describes the events as ‘fraudulent activity’, with the result that the applicant was consequently not in a position to address the complaints with the respondent when they were made, or before the Tribunal other than at the most general level.
The Tribunal also notes that at least two of the instances which have been referred to as ‘failed deliveries’ appear to be the same event (trip 53 and trip 55).
It is also worth noting that the parties’ evidence before the Tribunal confirms that over the period during which he worked as a delivery partner, the applicant undertook almost 8000 deliveries, earning approximately $1,225 per week, and achieving a 4.88 out of 5 star rating. The applicant submitted that 56 complaints are statistically negligible and do not constitute a pattern of complaints or amount to material breach. The respondent replied at the hearing that this submission misunderstood the gravity of the conduct and that fraud is not acceptable even to a small degree. If this was the respondent’s view at the time, that fraud to any degree is unacceptable and that the complaints received likely represented cases of fraud, with the serious consequence being that the delivery partner’s services would quite probably be terminated, then it is even more surprising that the respondent did not notify the applicant almost immediately of the complaints and provide details to permit him to respond.
On 27 August 2024 the respondent notified the applicant as follows: “Delivery not received by the recipient*. Hi Mohammed. We received a report from a customer that their order was not received although you marked the order as complete. Here are some recommendations and ways for how you can use the app to create the best experience for the customer….”. Recommendations are then provided about how to contact a customer, leaving the order at the drop off location, taking a photo, and using the app to help verify the delivery address. The notice concludes: “repeated instances of undelivered orders may represent a violation of your agreements with Uber and if applicable in your country’*s Uber community guidelines and may result in a deactivation of your account. Thanks for delivering with Uber eats.”
It is not apparent from the materials what delivery this notification relates to. There is no evidence in the respondent’s materials of a failed delivery on 27 August 2024, so the reference is presumably to an earlier alleged failed delivery. There is no ‘chronicle trip’ data included for the failed delivery which the respondent has listed for 25 August 2024. The ‘chronicle trip’ data for the prior ‘failed delivery’ on 22 August 2024 (trip 55/trip 53) shows the order marked as delivered approximately 60m from the intended location (based on the Google maps ‘pin’ which has been centred on the location, which the Tribunal notes is a large block of apartments in a busy inner city suburb of Sydney). The applicant stated that there were many occasions when he had to park just along the street or just around the corner from the destination, which may explain the 60m distance in a case like this.
Without more detailed contemporaneous evidence from the parties the Tribunal cannot be satisfied that delivery 55/53 was a ‘failed delivery’.
The respondent noted that the applicant did not reply to Uber about this complaint, and that it is reasonable for the respondent to assume that a non-response from a driver means they accept the complaint. However, the applicant says that he did not understand at the time that he had an opportunity to respond to or challenge the notification. Certainly, the wording of the notification does not obviously invite a response.
Further, the Tribunal notes that this was the first time that the applicant was notified by the respondent of a complaint, after more than a year of deliveries, and against a background where according to the respondent there had already been 56 complaints, which were not notified to the applicant. It could as easily be said against the respondent that a failure to notify the respondent of concerns or complaints prior to this time meant that the respondent was content with the driver’s conduct to that point, or at least that the applicant could assume that they were content.
The respondent says that between 27 August 2024 and 24 October 2024 there were a further 5 failed deliveries. The respondent’s materials include ‘chronicle trip’ data for 3 deliveries, being trip 59 (27 September 2024), and trips 60 and 61 (24 October 2024), in each case showing the marked delivery point a short distance from the specified delivery address.
Again, it is not possible from these materials for the Tribunal to be objectively satisfied that each of these occasions were cases of a ‘failed delivery’. For example, the respondent asserts based on the material provided for trip 60 that the distance between the delivery point and the delivery address was 500m, and concludes that this was a failed delivery. However, it is apparent from viewing the image provided that this distance has been calculated on the assumption that the applicant would have had to drive around the block to get the delivery address. If the applicant parked at the point marked as the delivery point, and walked to the location, it seems the distance would have been less than 40m. The delivery was to an inner city location, where parking may have been limited, and the driver would have to walk the final distance to complete a delivery. This may be what occurred.
The material for trip 61 suggests that the distance between the delivery point and the delivery address was 110m. However, it seems from viewing the image provided that the delivery address may have been an apartment building that occupied the entire block, and that the point marked as the delivery point was at one corner of the apartment block while the google map pin was placed on a different part of the same block. The chronicle trip data is hardly conclusive of a failed delivery.
On 24 October 2024 the respondent sent a further notification to the applicant as follows: “Irregular activity detected. Hi Mohammed. We*’ve received reports from one or more customers that their order was not received although you marked the orders as complete. Accepting delivery requests without intending to complete the delivery or picking up a delivery item but retaining all or a portion of the item and not delivering the entire order may be a violation of your agreements with Uber and if applicable in your country Uber’*s community guidelines... if we continue to detect such activity on your account you may permanently lose access to delivery opportunities using the app.”
The tone of this notification to the applicant was more serious than the 27 August 2024 notification. It stated that reports had been received from one or more customers. Reading between the lines it suggested that the respondent suspected the driver of retaining the delivery items. It alerted the applicant that he may permanently lose access if the respondent continued to detect such activity.
The applicant did not respond. His evidence before the Tribunal was that he did not agree that he had ever failed to deliver an order, and that in the absence of information as to the specific complaints he did not understand that Uber was seeking a response from him.
The respondent sent similar messages to the applicant on 25 and 30 October 2024. However, there is no evidence in the respondents’ materials of further failed deliveries occurring between 25 October 2024 and 30 October 2024. It is not apparent from the respondent’s materials why the messages were sent on 25 and 30 October 2024. Arguably the respondent could have contacted the respondent to query the messages and why they had been sent. The respondent did not do so. On the other hand, a failure on the part of the applicant to query the messages cannot be taken to amount to an ‘admission’ of conduct where there was no evidence that the applicant had engaged in the sort of conduct referred to in the messages in the period prior to the messages being received.
Thereafter, according to the respondent’s submission, the applicant failed to deliver on 5 further occasions between 24 October 2024 and 8 November 2024.
The respondent has not included the communications with the customer in respect of any these deliveries. The respondent’s materials include ‘chronicle trip’ data for deliveries on 3, 7 and 8 November which show deliveries to points identified as 68m (across the road) from the destination, 27m (around the corner) from the destination, 110m (along the road) from the destination, and 700m and 1.9km away from the destination, although in each of the latter cases the route followed by the driver appears to go past the destination, so one possible explanation is that the driver marked the item ‘delivered’ after leaving the item and driving on.
Viewed individually, the evidence submitted by the respondent to support its conclusion that the driver fraudulently failed to deliver on 66 separate occasions is not compelling. Further, had the complaints been raised with the respondent at the time he may have had an explanation, or been able to resolve them.
As the Tribunal observed in Rehma**n at [174]:
The applicant followed up on 17, 18, 21, 23 and 26 November 2024. In his replies of 21, 23 and 26 November 2024 the applicant reiterated the points made in his 16 November 2024 email.
On 26 November the applicant received a reply from the respondent: “**Thank you for reaching out. We have looked further into your account and determined our initial decision will stand. Uber takes the safety of all our users very seriously, so we hope you understand our initial decision. This decision is final. Please do not attempt to contact Uber again regarding this matter.”
As noted earlier, the respondent has not included evidence of this further internal review. Ms Ye states that the initial decision was upheld due to the cumulative nature of the user complaints about the applicant’s conduct and behaviour. However, the 26 November reply does not provide this explanation as a reason, and was Ms Ye was not the decision maker or even involved in the review. The reply doesn’t provide any real reason for why the applicant’s request that the respondent reconsider and reactivate his account was rejected. The reply does not engage with the points raised in the applicant’s email of 16 November 2024. All the Tribunal can discern from the reply is that the respondent did not change its decision, that for the purpose of conducting its internal review the respondent did not provide the applicant with detail as to the specific complaints or other evidence which the respondent was relying on to make its decision, so as to enable the respondent to respond (except at the most general level, that is to deny wrongdoing, which he did in his 16 November 2024 email), and that the respondent did not intend doing so (as was made plain by the final sentences ‘This decision is final. Please do not attempt to contact Uber again regarding this matter*’*.)
The respondent messaged the applicant again on 27 November 2024 as follows: “After reviewing your concern, we*’ve determined that we have previously provided our response regarding this issue. As previously communicated your account has been flagged for violation of Uber’s community guidelines. We took another look at your account to review the decision, and we also previously sent you a notification regarding this inquiry. Unfortunately, we’ve determined that our initial decision will stand and your account will remain deactivated. I know that this is not the result that you’*re hoping for, unfortunately, we are unable to further assist you with this. We wish you the best of luck in your next endeavour, and we thank you for your time spent as a driver partner.”
While Ms Ye states that the respondent conducted a further review on 27 November 2024, all this message seems to be conveying is that the further review had already been conducted (as indicated in the 26 November email) and the respondent has already informed the applicant of the outcome. It does not appear to be referring to any additional internal review by the respondent.
The applicant followed up on 2, 8, 13 December 2024. In his messages of 2 December and 13 December the applicant provided further information explaining ‘his side of the story’ (so far as he was able, given that he had received no explicit details as to any of the ‘failed deliveries’ which had apparently now prompted the respondent to cancel his account). The applicant explained that there were many occasions when he showed up at the customer’s address and contacted them multiple times but they did not arrive, and that he only ever cancelled deliveries where the consumer did not show up in the allowed time frame, in accordance with the respondent’s guidelines.
On 13 December 2024 the respondent replied: “We understand your frustration and have double checked your account to review the decision. We*’ve decided to stick with our initial decision. We know this is hard for you but based on the substantial feedback from your riders, you weren’*t following our guidelines, which were developed to help make every experience feel safe, positive and respectful. Anything that disrupts this experience is taken very seriously at Uber. We appreciate your time using Uber and wish you the best in the future”.
It is hard to make sense of this last response, as the initial complaint concerned failed deliveries, whereas this response refers to ‘feedback from your riders’. The response appears to be generic, and not apt to the applicant’s situation.
Further, it is not apparent what information was ‘double checked.’ Despite now classifying the conduct as ‘fraud’ by the applicant, the only reviews that the respondent seems to have conducted into the complaints at the time they were received from customers were reviews of the customer’s accounts to identify whether they indicated a pattern of fraud by the customer. Other than an initial denial of wrongdoing and the applicant’s subsequent explanation that he only ever cancelled deliveries where the consumer did not show up in the allowed time frame, which was in accordance with the respondent’s guidelines, the respondent had no information or explanation from the applicant as to what occurred on each of these occasions.
Without seeing the respondent’s internal review materials, it is difficult to identify what information the respondent had, which may have cast light on events, and which the respondent could usefully ‘double checked’, or to be satisfied that a reasonable basis existed for the respondent to reaffirm its previous conclusion that the applicant had engaged in fraudulent activity in violation of Uber’s policies so as to justify deactivation of his account. Further, it is not apparent what, if any, steps the respondent took to investigate the applicant’s explanation of cancelled deliveries.
Additionally, the Tribunal is not satisfied that the respondent engaged in a genuine review of its decision to deactivate, when the applicant requested the respondent to do so.
To start with, the respondent did not provide the applicant with sufficient information, either at the time of the complaints, or prior to its decision to deactivate, or for the purposes of its further review, to permit the applicant to provide a meaningful response to the concerns. As such the respondent was not in a position to give genuine consideration to the applicant’s response.
Further, there is no direct evidence as to what matters the respondent took into account when deciding that the applicant’s review should be rejected and the decision to deactivate of November 2023 should be affirmed.
Finally, none of the respondent’s responses to the applicant provided meaningful reasons as to why the respondent determined that its initial decision would stand. To adopt the words of the Tribunal in Singh at [152] “If there are no reasons provided as to why the review sought by the driver was rejected, it is difficult to conclude that a genuine review occurred.”
In the circumstances, the Tribunal is satisfied that the applicant has proved, on the balance of probabilities that the respondent was not justified in terminating the DP Agreement. Accordingly, the respondent has repudiated the agreement, and the applicant is entitled to damages if loss caused by the breach is proved.