REMATH INVESTMENTS NO 6 PTY LTD v CHANEL (AUSTRALIA) PTY LTD [1992] NSWCA 208

REMATH INVESTMENTS NO 6 PTY LTD vy CHANEL (AUSTRALIA) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBY P, HANDLEY and Cripps JJA 20 August 1992, 24 December 1992

[1992] NSWCA 208

CONTRACT — contractual terms — warehouse and bond store — deposited goods stolen by burglars — claim for recovery of loss resisted on basis of (a) displayed notices of storage conditions; (b) conditions referred to but not incorporated in delivery and deposit documents; and (c) course of dealings between parties — displayed conditions not observed — no steps taken to alert depositor as to contractual conditions — HELD (By the Court) — (1) As to the defence based upon the course of dealings between the parties (which was suggested to have incorporated the conditions of contract) the test to be applied was whether the bailee had done "what was reasonably sufficient to give the plaintiff notice of the condition" limiting liability. Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1991] ASC 56-616 (NSW CA) applied; Hood v Anchor Line (Henderson Brothers) Ltd [1918] AC 837 (HL); Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA); MacRobertson Miller Airline Services v Commissioner of State Taxation (Western Australia) (1975) 133 CLR 125 and Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 considered; (2) By that test, the bailee had not done what was reasonably sufficient to incorporate its alleged storage conditions into the relevant contracts of deposit; (3) Accordingly the bailee was liable as found.

CONTRACT — ticket cases — incorporation of terms — consideration of principles.

Kirby P, Handley and Cripps JJA On 22 September 1988 a burglary occurred at the bond store at 19-35 Crystal Street, Rozelle conducted by Remath trading as John Fletcher International. Remath was the bailee of a substantial quantity of Chanel perfumes and cosmetics recently imported into Australia. The burglars entered the building without activating the alarm system and were able to remain undetected while they removed approximately two tonnes of Chanel's goods. Chanel sued Remath and also Wormald who had installed the security system. Remath cross claimed against that company seeking to be indemnified against any judgment recovered by Chanel. This Court is not concerned with the claims against Wormald.