Civil and Administrative Tribunal New South Wales Medium Neutral Citation: City Removalists & Storage Pty Ltd v Glavanics [2023] NSWCATAP 300 Hearing dates: 25 September 2023 Date of orders: 16 October 2023 Decision date: 16 October 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member R C Titterton OAM, Senior Member Decision: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises some other error, leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEALS – whether the Tribunal erred in allowing that there was a contract entered into between the parties in circumstances were one party was not aware that an agent was acting for an undisclosed principal – rationale for the doctrine of undisclosed principal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80, Sch 4, cl 12 Fair Trading Act 1987 (NSW), s 79J Cases Cited: Collins v Urban [2014] NSWCATAP 17 Keighley, Maxstead & Co v Durant [1901] AC 241 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: G E Dal Pont, Law of Agency (3rd ed, 2014, Lexis Nexis Butterworths) Category: Principal judgment Parties: City Removalists & Storage Pty Ltd (Appellant) Jasper Glavanics (Respondent) Representation: S Saka (Director) (Appellant) Respondent (self-represented) File Number(s): 2023/00237345 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2023] NSWCATCD Date of Decision: 29 June 2023 Before: P Boyce, Senior Member File Number(s): GEN 22/55691 REASONS FOR DECISION Summary 1. The appellant appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 29 June 2023 in matter GEN 22/55691 (the Decision). 2. The Tribunal ordered the appellant to pay the respondent Mr Glavanics $8,312.88 immediately. 3. For the following reasons, we have decided to dismiss the appeal. The Decision 1. It is appropriate to summarise the reasons for the Decision. We note by way of overview that the Decision was detailed and considered, and its structure and reasoning process could not be criticised as being inadequate. 2. At pars [1] and [2] ("Application"), the Tribunal summarised the application made by the respondent, noting at [2] that: The Tribunal is satisfied that the applicant has proven to the civil standard that the reasonable amount to compensate the applicant for the damage to his goods by the respondent is the amount of $2,312.88. 1. At [3] to [13] ("Jurisdiction"), the Tribunal summarised the relevant statutory provisions which allowed it to conclude it had jurisdiction under s 79J of the Fair Trading Act 1987 (NSW) to hear and determine the respondent's application. 2. At [14] to [18], the Tribunal sets out certain procedural matters. 3. At [19] to [34] ("Facts found on the evidence"), the Tribunal set out its relevant findings of fact. Relevantly these include: 19. The [respondent] is a consumer and booked [the appellant] through the online Freightlancer marketplace to pick up furniture and other goods from Penrose NSW to be carried to Cooroibah near Noosa, Queensland. 20. Freightlancer is an online transport marketplace where individuals and businesses can buy and sell the services of road transport. Freightlancer is a noticeboard where buyers and sellers of heavy transport deal directly with each other to arrange freight services for a fixed price. 21. The [respondent] contends that Freightlancer was at all times his agent. 22. The [appellant] responded to the [respondent's] job advertised on Freightlancer marketplace and bid $8,500 including GST to pick up the goods from Penrose NSW, transport the freight and deliver the goods to the [respondent's] delivery address in Cooroibah, Noosa Queensland. On 30 June 2022 the [respondent] accepted the [appellant's] bid for the job including two 12 tonne trucks and 4 men. 23. The [appellant] accepted the booking for the job on 1 July 2022 to Frieghtlancer by email. 1. At [35] ("Consideration"), the Tribunal noted: There are two considerations for the Tribunal to determine. Firstly, was the [appellant] a party to the contract for the provision of services and, if so, what were the terms of that contract. Secondly, If the [appellant] was the contracting party what duty did the [appellant] owe to the [respondent] in carrying out the services. 1. At [36] to [43] ("Parties to the contract"), the Tribunal considered whether the appellant was a party to the contract for the provision of services. At [42], the Tribunal notes that the appellant contended that it was contracted to the respondent (and not to Freightlancer Pty Ltd (Freightlancer)) and concluded at [43] that this was the case. 2. At [44] to [50] ("Terms of the contract"), the Tribunal considered what duty did the appellant owed to the respondent in carrying out its services. Significantly, at [47] the Tribunal found that the appellant was: attempting to change its evidence given at the hearing by making significant changes to the document on evidence in its [post-hearing] submissions. Critically the [appellant] has sought to establish that its Terms and Conditions were given to the [respondent] before the [respondent] accepted the offer for the [appellant] to provide the services. The evidence relied upon by the [respondent] that he received an offer for the services to be carried out by the [appellant] for $8,500 which he accepted. He was not aware of the Terms and Conditions that the [appellant] now seeks to interpose in the precontractual negotiations to shore up its defence of the claim. 1. The Tribunal concluded at [49]: The Tribunal is satisfied on the evidence adduced by the applicant that no terms and conditions, relevant to the respondent charge for additional services were included in the contract for the provision of services entitling the respondent to make those charges. The respondent's contract to provide the services to the applicant were to pick up the applicant's goods and possessions from Penrose and deliver them to Noosa in good undamaged condition for a fixed price of $8,500.00 including GST. There is no basis under the contract, or at all, for the respondent to charge the additional charges and the payment by the applicant was made under duress, the respondent wrongfully withholding the delivery of the goods to force the applicant to submit to the demand for payment for the return of his goods. The applicant's denial of liability for the extra charges being ignored by the respondent and the respondent exercised its detention of the goods as a tool to pressure the applicant to succumb and make the payment. 1. In those circumstances, the Tribunal ordered the appellant to pay the respondent $6000.00. 2. At [51] to [63], ("Claim for damage to goods"), the Tribunal considered the respondent's claim for damage to his goods and concluded it was satisfied on the evidence before it that: 62. … the [appellant] did fail to exercise due care and skill and failed to take all necessary care to avoid loss or damage to the [respondent's] goods as would be reasonable to expect from a supplier of goods and services offering the service in the industry that the [appellant] offered its services. 63. The [appellant] is liable to the [respondent] for the damage to the applicant's goods. 1. At [66], the Tribunal stated that it was satisfied that the respondent has proven to the civil standard that the reasonable amount to compensate the respondent for the damage to his goods by the appellant was the amount of $2,312.88. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast), without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. The non-exhaustive list include: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable. 1. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise). 2. We have undertaken that exercise during the course of the appeal hearing. In our view, the appellant did identify a question of law, namely whether the Tribunal erred in determining that the contract was one between appellant and respondent, rather than in fact being a contract between the appellant and Freightlancer. 3. As we discuss below, we found this to be the most arguable of the appellant's grounds of appeal. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84(2)] that: Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) Issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Respondent's documents 1. We note at the outset that the respondent did not file a Reply to Appeal or any submissions. 2. At the appeal hearing the respondent confirmed that he agreed with the outcome of the Decision for the reasons stated. Notice of Appeal 1. In summary, in the Notice of Appeal the appellant states that the Decision was not fair and equitable because: 1. the decision was against the weight of the evidence; and 2. significant new evidence is now available that was not reasonably available at the time of the hearing. The Decision was against the weight of the evidence 1. This is primarily a reference to the appellant's written submissions at the Tribunal hearing ("Attachment 8"). That document relevantly states (numbers added for ease of reference): We appreciate the opportunity to address the concerns raised regarding the transportation and associated charges during Mr. Glavanic's move with Cityremovalist and Storage. To provide a comprehensive understanding, we would like to elaborate on several key points. [1] Engagement with Freightlancer: [The appellant] engaged in the transportation contract with Freightlancer, who, in turn sourced quotes on behalf of [the respondent] and facilitated the transaction. The terms and conditions, along with the booking confirmation and quote, were clearly outlined and sent via email to Freightlancer, who had ample time to review them before proceeding with the arrangements. [2] Customer Obligations: As per our terms and conditions, it is the responsibility of the consumer, in this case, both Freightlancer and [the respondent] to thoroughly read and agree to the provided terms. They also have the option to cancel the booking if the terms are not acceptable to them. The fact that the booking was not cancelled indicates their agreement with the terms, including the possibility of variations and additional charges, as detailed in Attachment 5 (Terms and Conditions). [3] Lack of Communication: We acknowledge that there might have been a lack of clear communication between Freightlancer and [the respondent] in terms of itemizing the move, the location, and potential difficulties in access. Had we been directly in contact with [the respondent], we could have provided a more accurate quote, taking into consideration the specific requirements of his move. [4] Insurance Coverage: As outlined in Attachment 6 (Freightlancer Terms and Conditions), Freightlancer clearly disclaims responsibility for damages and losses. Therefore, it was essential for [the respondent] to arrange his own removals insurance to safeguard against unforeseen damages during the transportation process. [5] Additional Charges: The extra charges incurred were a result of [the respondent]'s refusal to pay the final fee on the agreed-upon date, citing that Freightlancer would make the payment. This situation led to delays and necessitated the overnight stay of the removalists at a local hotel, resulting in additional fees. These charges were duly explained to [the respondent] on the day of the move that extra charges will apply for the removalist to come back again including charges for a second trip. [6] Authorization of Payment: As indicated in Attachment 7 (Applicant Application), [the respondent] authorized Freightlancer to pay [the appellant] $14,500 for the safe return of his belongings. However, had we been aware of this arrangement earlier, the initial quote could have been adjusted to reflect the complexities of the move the specific payment arrangement. In summary, we strive to maintain clear communication and transparency in all our dealings with customers. We understand that unforeseen circumstances can arise during the moving process, and we are always prepared to accommodate reasonable changes. However, it is crucial for customers to read and acknowledge the terms and conditions before proceeding with any bookings. 1. In our view this ground of appeal is misconceived. This is for three reasons: 1. the so-called evidence overlooked by the Tribunal was not evidence at all, this document contains submissions made by the appellant which by and large appear to have been considered by the Tribunal; 2. items [1] and [2] are contingent on the appellant establishing that the relevant contract was between the appellant and Freightlancer. We consider that issue below; 3. the remaining items do not assert any error by the Tribunal. 1. In our view, this ground of appeal is misconceived and we do not grant leave. Significant new evidence is now available 1. The significant new evidence said to be available that was not before the Tribunal is the appellant's Attachment 9 which states: [1] Engagement with Freightlancer: It has come to our attention that Mr. Glavanic cited Freightlancer as the facilitator, matching sellers and buyers on their online marketplace. We would like to clarify that Cityremovalist and Storage never used Freightlancer's online marketplace or received a quote from them through their website. Instead, we sourced the quote from Move Select, a platform commonly used by us for obtaining quotes. [2] Honest Communication: Freightlancer's communication providing the specification with the job on Move Select. Based on the information they provided, we assumed they had honestly represented the move, including hazardous conditions, payment arrangements, and access difficulties. Consequently, Freightlancer accepted our quote, paid the deposit, and received our confirmation and terms and conditions [3] Direct Communication with Customers: Cityremovalist and Storage firmly believes that direct communication with customers is vital for a smooth and accurate moving process. We agree that if Mr. Glavanic had directly contacted us and provided specific details, including bad access conditions, we could have offered a more accurate quote and avoided potential delays in payment. [4] Freightlancer's Role: We are concerns about Freightlancer's role in this transaction. It is unclear whether they are acting as a broker, selling jobs to removalist companies and profiting from the difference. At no point were we informed that we were not working for Freightlancer; our understanding was that we were providing services directly to Freightlancer. If any costs need to be passed on, they should be communicated and billed directly to Mr. Glavanic by Freightlancer. We acknowledge that the communication breakdown may have occurred due to the intermediary role played by Freightlancer. Direct communication between customers and service providers is always preferred to avoid any misunderstandings or delays. 1. This ground of appeal is misconceived. Again, this material is not evidence. In fact, it is a submission that was before the Tribunal. 2. Accordingly, we see no substance in this ground of appeal. Other grounds of appeal 1. For completeness, in the Notice of Appeal, the appellant also challenges factual findings or comments made by the Tribunal at [42], [47], [48], 49], [52] and [66]. 2. At [42], the Tribunal stated: The respondent, on its submission, was not under any contract to supply services to Freightlancer. It says it was contracted to the applicant. The applicant contends that Freightlancer was its agent in facilitating the obtaining the services of the respondent to carry out the work. Freightlancer says that its role was only ever a facilitator to match, in this case, consumers with suppliers of services. The Tribunal notes that although Freightlancer attempted to assist the applicant in its dealings with the respondent, it appears that such assistance was not part of the service it provided, that service being simply to match the work to be done with a supplier of the services. The applicant paid the agreed contract price together with the disputed amount totalling $14,500 to the respondent on 25 July 2022. 1. The appellant submits in the Notice of Appeal that "at no stage" was it under the assumption that Freightancer was an intermediary facilitator. 2. This matter relates to the question of law identified above which we will consider below. 3. At [47], the Tribunal relevantly stated: The Tribunal finds that the [appellant] is attempting to change its evidence given at the hearing by making significant changes to the document on evidence in its submissions. Critically the [appellant] has sought to establish that its Terms and Conditions were given to the [respondent] before the [respondent] accepted the offer for the [appellant] to provide the services. The evidence relied upon by the [respondent] that he received an offer for the services to be carried out by the [appellant] for $8,500 which he accepted. He was not aware of the Terms and Conditions that the respondent now seeks to interpose in the precontractual negotiations to shore up its defence of the claim. … 1. The appellant submits in the Notice of Appeal that the quotation for $8,500.00 was valid "IF" there was no variation of work required and delay. The appellant states that the respondent received the booking confirmation on the 1 July 2022. 2. We see no substance in this submission and would not grant leave to appeal in respect of it. 3. At [48], the Tribunal stated: The [appellant's] booking confirmation email of 1 July 2022 does not have any attachment, contain any other relevant information about any other terms and conditions or provide links to such standard terms and conditions, despite the [appellant's] assertion that the terms and conditions were supplied to the [respondent] before entering into the contract for the provision of services. 1. The appellant submits in the Notice of Appeal that it was not Informed by the respondent at any stage that an agent was acting on his behalf in facilitating and for matching a consumer to a service provider. 2. Again, this matter relates to the question of law identified above which we will consider below. 3. At [49], the Tribunal stated: The Tribunal is satisfied on the evidence adduced by the [respondent] that no terms and conditions, relevant to the [appellant] charge for additional services were included in the contract for the provision of services entitling the respondent to make those charges. The [appellant's] contract to provide the services to the [respondent] were to pick up the [respondent's] goods and possessions from Penrose and deliver them to Noosa in good undamaged condition for a fixed price of $8,500.00 including GST. There is no basis under the contract, or at all, for the [appellant] to charge the additional charges and the payment by the [respondent] was made under duress, the [appellant] wrongfully withholding the delivery of the goods to force the [respondent] to submit to the demand for payment for the return of his goods. The [respondent's] denial of liability for the extra charges being ignored by the [appellant] and the [appellant] exercised its detention of the goods as a tool to pressure the [respondent] to succumb and make the payment. 1. The appellant submits in the Notice of Appeal: Please refer to our Terms and Conditions that was sent to Rowan Blake on Friday. 1 July 2022. On page two in our Terms and Conditions reference 5 Delivery subsection 5.1 1. We see no substance in this submission and would not grant leave to appeal in respect of it. 2. At [52], the Tribunal stated: … the supplier must provide those services with due care and skill and that they must take all necessary care to avoid loss or damage when providing those services. 1. The appellant submits in the Notice of Appeal that: Due care and skill were taken when moving goods though accidental damage can occur, this does not demonstrate the absence of due care and skill but an understanding of the challenges that face removalists when moving goods such as difficult access, heavy Items, narrow hallways, obscure and fragile items just to name a few. 1. At [66], the Tribunal stated: The Tribunal is satisfied that the applicant has proven to the civil standard that the reasonable amount to compensate the applicant for the damage to his goods by the respondent is the amount of $2,312.88. 1. The appellant submits that: In our booking confirmation that was sent to Rowan Blake on Friday, 1 July 2022 it states under the title of Insurance and Waivers. 1. We note that for none of these grounds does the appellant claim that the finding of the Tribunal was not fair and equitable or against the weight of the evidence. The submissions are simply a commentary on the findings. 2. In our view none of these matters raise a ground of appeal, and even if they did, we would not grant leave to appeal in respect of any of them, as we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. Question of law 1. As we noted above, the only substantive ground of appeal raised by the appellant is the Tribunal's finding that there was a contract between the parties, rather than, as claimed by the appellant, between it and Freightlancer. 2. We pause to note that at [42] of the Decision the Tribunal stated that the appellant "on its submission, was not under any contract to supply services to Freightlancer". 3. That statement is completely at odds with the submission made to us, and suggests that this issue was not raised by the appellant at the Tribunal hearing. That said, the Tribunal states at [35] of the Decision that the first matter for the Tribunal to determine was whether or not the appellant was a party to the subject contract. 4. We will assume therefore in favour of the appellant (despite the Tribunal's statement at [42]) that the issue of whether the appellant was party to a contract with the respondent was an issue was raised at the Tribunal hearing. 5. We note immediately that we do not have the benefit of either the sound recording or a transcript of that hearing, despite orders that they be provided if what occurred at the Tribunal hearing was sought to be relied on at the appeal hearing. 6. The effect of the appellant's submission is straight-forward. It submits that as it was not a party to a contract with the respondent, the Tribunal erred in ordering it to pay the respondent $8,350.00. 7. As noted above, rather than finding the contract was between the appellant and Freightlancer, the Tribunal found that the contract was between the appellant and the respondent, Frieghtlancer acting as the respondent's agent. That conclusion was based on the evidence of both the respondent, and Freightlancer's Chief Executive Officer, who gave evidence at the Tribunal hearing. 8. The appellant's argument, put in various ways to the Appeal Panel, was that it never knew it was contracting with the respondent, rather, it thought it was dealing with, and contracting with, Freightlancer. 9. In our view, this amounts to the appellant submitting that Frieightlancer was an agent for an undisclosed principal. Here we note that where an agent makes a contract with a party on behalf of an existing disclosed principal pursuant to the agent's actual authority to do so, the principal alone can sue, and be sued, by the third party on that contract. Here see G E Dal Pont, Law of Agency 3rd ed, 2014, Lexis Nexis Butterworths) (Dal Pont) at [19.1] and the authorities referred to. 10. As to the undisclosed principal, Dal Pont relevantly states: General principles [19.28] A leading modern statement of the relevant law pertaining to the doctrine of the undislosed principal – or maybe more precisely 'undisclosed agent' is that of Lord Lloyd in Siu Yin Kwan v Eastern Insurance Co Ltd, who said [[1994] 2 AC 199 at 207 (PC)]: (1) An undisclosed principal may sue … on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) in entering into the contract, the agent must intend to act on the principal's behalf. … Entitlements of third parties [19.31] … Although either principal or agent can sue … 'the right of the principal prevails over that of his agent' … 1. As Dal Pont further explains at [19.33], the doctrine of the undisclosed principal dictates that a person (here the respondent) can sue upon a contract even though the other contracting party (here the appellant) does not know that the person whom they were contracting with was acting as an agent. Dal Point notes that Lord Lindley stated the rationale for the doctrine in Keighley, Maxstead & Co v Durant [1901] AC 241 at 261 to 262 (footnotes omitted) as follows: The explanation of the doctrine that an undisclosed principal can sue and be sued on a contract made in the name of another person with his authority is, that the contract is in truth, although not in form, that of the undisclosed principal himself. Both the principal and the authority exist when the contract is made; and the person who makes it for him is only the instrument by which the principal acts. In allowing him to sue and be sued upon it, effect is given, so far as he is concerned, to what is true in fact, although that truth may not have been known to the other contracting party. At the same time, as a contract is constituted by the concurrence of two or more persons and by their agreement to the same terms, there is an anomaly in holding one person bound to another of whom he knows nothing and with whom he did not, in fact, intend to contract. But middlemen, through whom contracts are made, are common and useful in business transactions, and in the great mass of contracts it is a matter of indifference to either party whether there is an undisclosed principal or not. If he exists it is, to say the least, extremely convenient that he should be able to sue and be sued as a principal, and he is only allowed to do so upon terms which exclude injustice. 1. Applying these principles, even if we accepted that the appellant was not aware that Freightlancer was in fact acting as agent for the respondent, there is no legal reason why the respondent is unable to sue on the contract that was entered into. 2. In summary, while we find that the appellant has raised a question of law on this issue, we do not find that the Tribunal made an error of law. 3. Therefore, we would not allow the appeal on this issue. Orders 1. The Appeal Panel orders: 1. In so far as the appeal raises a question of law, the appeal is dismissed. 2. In so far as the appeal raises some other error, leave to appeal is refused and the appeal is otherwise dismissed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 November 2023