ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WHIPP v ASE LAKEFRONT PTY LTD (Civil Dispute) [2017] ACAT 105

XD 379/2016

Catchwords: CIVIL DISPUTE – counter claim – lack of documentary evidence – why accurate information is important – whether the applicant was employed by the respondent or another entity – whether the applicant took reasonable care of a van loaned to him as part of his employment

Legislation cited: Civil Law (Property) Act 2006 s 205

Cases cited: Rookes v Barnard [1964] AC 1129Welch v Erica’s Aesthetics Pty Ltd [2017] ACAT 68

Tribunal: Senior Member H Robinson

Date of Orders: 13 December 2017Date of Reasons for Decision: 13 December 2017

AUSTRALIAN CAPITAL TERRITORY )CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 379/2016

BETWEEN:

NATHAN WHIPPApplicant

AND:

ASE LAKEFRONT PTY LTDRespondent

TRIBUNAL: Senior Member Robinson

DATE: 13 December 2017

ORDER

The Tribunal orders that:

1. The respondent/counterclaimant is amended to ASE Lakefront Pty Ltd.

2. The application, being withdrawn, is dismissed.

3. The applicant is to pay the respondent/counterclaimant:

(a) $199.48 for lights purchased on its account;

(b) $70 for the application fee.

………………………………..Senior Member Robinson

REASONS FOR DECISION

Background

1. This matter commenced with the applicant, Mr Whipp, making a claim for

unpaid employment entitlements against an individual, Mr Tominac. A third

entity, a company by the name of ASE Lakefront Pty Ltd (Lakefront), of which

Mr Tominac is a director, then purported to make a ‘counterclaim’ against

Mr Whipp. The matter was set down for conference. The matters discussed at

that conference are not admissible in evidence before the Tribunal1, but the

outcome was that directions were made to prepare the matter for hearing,

including directions for the appropriate identification of the respondent. Shortly

thereafter, Mr Whipp then sought to withdraw the application, on the basis that

it was more appropriately pursued in another forum, and hence the name of the

respondent to the application never amended.2 Lakefront, however, pressed its

counterclaim.

2. When the matter came before the Tribunal for hearing, a preliminary question

was whether the counterclaim could be pursued in circumstances in which the

purported counterclaimant was not the correct respondent to the original claim.

The parties agreed that, in light of Lakefront’s intention to prosecute this matter

in any case, and given the parties were conversant on the facts, the most

efficient approach was to allow the respondent to the

application/counterclaimant to be amended to Lakefront, and the matter to

proceed to hearing. As such, it is more appropriate to refer to Lakefront as the

applicant and Mr Whipp as the respondent, but in order to avoid further

confusion, I will instead refer to each by their respective names.

The counterclaim

3. Lakefront alleges that Mr Whipp either:

(a) breached his contract with it; or

(b) breached his duty of care to it; and

caused it the following: 1 ACAT Act section 34(3)2 The tribunal’s jurisdiction in employment law matters has since been

considered in Welch v Erica’s Aesthetics Pty Ltd [2017] ACAT 68

2

(a) damage to a Mercedes work van, with a repair cost of $11,827.01; and

(b) loss of a mobile phone of $199.00.3

4. Lakefront also claims the costs of a non-work related purchase from trade

supplier that Mr Whipp placed on the work account. This purchase was for

$199.48. Mr Whipp concedes that he was contractually required to repay the

amount, but says that, through its actions, Lakefront has waived that

requirement.

Preliminary comments – why accurate documentation is important

5. This Tribunal is regularly asked to resolve disputes between parties to

commercial relationships that are best described as ‘informal’ – arrangements

characterised by handshakes, ‘gentleman’s agreements’ or simply day to day

practice rather than by written contracts. No doubt, such arrangements are the

mainstay on some businesses, and there are likely many advantages, including

flexibility and efficiency. But there are also risks. These arrangements may

work well when the parties are in agreement, but when things go wrong, the

parties, having spent little time or energy formalising their agreement, must then

spend considerable time and resources working out what was actually agreed.

6. Typically, when the matter becomes litigious, the parties then look to the

Tribunal to sort out the details. On one level, this is to be expected – the

Tribunal is informal, accessible and flexible. We are understanding when parties

have documentation that is far from perfect. However, there are limits to the

kind of flexibility that can be shown where parties have conducted themselves

with such informality as to make it impossible to make findings of fact. It is not

the role of this Tribunal to rewrite agreements with the benefit of hindsight, to

insert terms of its own choosing where contentious issues were left unaddressed,

or to construct agreements that were never the subject of a meeting of minds.

The limitations of the Tribunal’s role are evident in this case.

Credibility

7. The lack of probative documentary evidence of several key issues arising in this

matter means that determination of liability comes down to the comparative

3 Initially a claim for $459, but the parties later agreed that the model of phone was worth a lower value

3

credibility of the oral evidence given by the two witnesses. Perhaps

unsurprisingly in such circumstances, each party asked that I find the other’s

witness unreliable. I therefore make the following observations.

8. Certainly, there were irreconcilable inconsistencies in the evidence of the

parties. However, I accept that the differences are less a result of deliberate

deception by a witness, than a consequence of the passage of time,

misremembrance, incorrect assumptions and both parties drawing different

inferences and emphasises on casual, informal and imprecise conversations.

9. That said, while I decline to find that either witness was in any way telling

untruths, I am satisfied that the evidence of both witnesses was, at times,

unreliable – not in the sense of being deceptive, but in the sense of being

inaccurate. Those inaccuracies are an unfortunate consequence a lack of

documentation with which to check or confirm recollections. As it is Lakefront

who bears the onus of proof, it is Lakeside who is particularly compromised in

its ability to present its case.

The facts

10. It is not in dispute that in May 2009, Mr Whipp was engaged as an electrician

by a company of which Mr Tominac was a director. At the commencement of

the hearing, the identity of the initial employing company was in dispute, but for

reasons set out below, I am satisfied that the initial employing company was not

Lakefront, but rather All Star Electrical Services (ACT) Pty Ltd (All Star). All

Star has since changed its name to Allstar Electrical Oracle (ACT) Pty Ltd (on 4

August 2011), but I will continue to refer to it as ‘All Star’ in these reasons. For

its part, Lakefront was not registered until 4 August 2011.

11. The employment contract was verbal. There was no written offer of

employment, no written employment contract, no provision of workplace

policies or other documentation, and indeed no apparent mention of an Award

or other industrial instrument. On Mr Tominac’s evidence, the offer of

employment was a “sales pitch”4 that included an offer of a funded work vehicle

4 Transcript of proceedings page 41, lines 7-8

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and a telephone. On either version of the evidence, the discussions were

minimal, but the arrangements apparently quite good.

12. Sometime after Mr Whipp commenced employment with Allstar, Mr Tominac

provided him with an Apple iPhone for work purposes. It is not in dispute that

this phone was not returned at the cessation of Mr Whipp’s employment, and

Lakefront seeks compensation for this.

13. Significantly, during the course of the above events, Mr Whipp was engaged as

an employee by Allstar, not Lakefront. Lakefront did not yet exist.

14. Sometime after Mr Whipp commenced employment, probably in around 20115,

Mr Tominac purchased a 2002 model Mercedes Vito 2.1 litre van (the van)

from Mr Robert Platzer, another electrician who he knew. Mr Tominac’s

evidence was that he “thought” he paid $11,000 for the van6, but there is no

documentary evidence of this before the Tribunal.

15. Mr Tominac initially said that he purchased the vehicle on behalf of Lakefront7,

but this is not clear on the evidence. No registration papers or other proof of

ownership of the vehicle are before the Tribunal, and nor is there any evidence

of assignment of the vehicle from one entity to another at a later time. There is

also no evidence as to the month the vehicle was purchased. A statement from

Mr Platzer, made in September 2016 and filed in these proceedings, confirms

that he sold the vehicle to Mr Tominac, but does not state the date of the sale or

the price.

16. As to the condition of the vehicle at the time of sale, Lakefront relied on both

the oral evidence of Mr Tominac and the statement of Mr Platzer.

17. Mr Tominac’s oral evidence was that the van “…was in good condition and

commensurate with the kilometerage…a decent van only in its mid-life”8. I have

no reason to doubt this description, although ‘good condition’ it is ultimately

5 Transcript of proceedings page 19, line 226 Transcript of proceedings page 19, line 237 Transcript of proceedings page 20, line 10 8 Transcript of proceedings page 19, lines 37-39

5

subjective. No photographs, condition reports or anything more objective was

provided to the Tribunal.

18. Mr Platzer’s statement said that the van was in good working order with “minor

wear and tear but no scratches or dents”9. I accept this evidence, far as it goes,

but that it not very far. The statement was made five years after the sale, it does

not provide any real detail, and Mr Platzer was not made available for cross

examination. The weight I can give his statement is fairly minimal, but it is

largely consistent with Mr Tominac’s evidence, and does not appear to be

controversial.

19. There is some discrepancy in evidence as to the odometer reading at the time of

purchase, with Mr Tominac stating that the vehicle had about 100,000 km10 on it

and Mr Whipp saying the vehicle had 200,000km on it and “closer to

220,000lm” when he returned it.11 Mr Platzer’s evidence was that the vehicle

had 120,000 km on the odometer at the time is was sold to Mr Tominac. A

Transtate Tyre and Suspension invoice of 22 April 2015 states an odometer

reading as at that date of 141,652km (Transtate Tyre Invoice). On balance, I

accept the lower number is more accurate, as it is consistent with the

documentary evidence.

20. Mr Tominac said he owned the van for about six months before providing it to

Mr Whipp.12 The parties agree that during this time, it was driven by another

employee, Mr Doug Hynson.

21. Mr Whipp relied upon a written statement signed by Mr Hynson and filed in

these proceedings. In that statement, Mr Hynson said that, in the time he drove

the vehicle, it was involved in a smash on Belconnen way, that “none of the

doors worked properly…the back door was broken…the front was always

coming of…the back interior/trim was broken.” Mr Hynson’s statement is as

problematic as Mr Platzer’s, if not more so. It was not sworn and Mr Hynson

was not available for cross examination. Moreover, Mr Whipp conceded he

9 Statement of Robert Platzer, 20 September 201610 Transcript of proceedings page 19, line 1911 Transcript of proceedings page 75, lines 13-1412 Transcript of proceedings page 20, line 44

6

helped Mr Hynson write it –indeed, he may have written it for Mr Hynson’s

signature, as there is a corrected spelling mistake in Mr Hynson’s name in the

opening sentence. In his statement, Mr Hynson states that he worked for

“Allstar Electrical for around 2 years, 2008 – 2010”. This timeframe is

inconsistent with the evidence of Mr Tominac that he purchased the van in

2011. When questioned, Mr Tomasic was insistent Mr Hynson resigned in

2011.13 In the circumstances, I attach little weight to the statement of Mr

Hynson. I accept the uncontested evidence that Mr Hynson drove the van for

some months before it was made available to Mr Whipp.

22. There was also conflicting evidence between the parties as to terms upon which

the vehicle was provided to Mr Whipp. Even on Mr Tominac’s evidence, the

handover conversation was brief. Both parties agree that Allstar bore the cost of

servicing and maintaining the vehicle, and Mr Whipp had an obligation to

ensure that this was done through an nominated mechanic, but otherwise the

terms of the agreement appear to have been vague. Nothing was put in writing.

23. Turning to the events of the handover, Mr Tominac’s evidence was that he

conducted a visual inspection of the van prior to handover, but no record of a

logbook, inspection report or documentary evidence as to the condition of the

van at the time it was provided to Mr Whipp was put before the Tribunal.

Servicing records, fuel logbooks and another records from the period that Mr

Whipp had possession of the vehicle also were not produced.

24. It is not entirely clear on the evidence when in 2011 the conversations between

Mr Tominac and Mr Whipp happened, and what date the van was given to Mr

Whipp for his use.

25. Whatis clear on the evidence is that in early 2011, Mr Tominac was conducting

his business through Allstar, under the trading name of ‘Allstar Electrical’. It

was only in August 2011 that Mr Tominac made a number of changes to his

business arrangements, including on 4 August 2011, registering Lakefront.14

13 Transcript of proceedings page 21, line 1214 Current and Historical Organisation Extract, Infotrack, 7 March 2014

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26. Under questioning from the Tribunal, Mr Tominac explained his reason for new

company structure as follows:

It was a period of change and transition. My financial advisor and accountant in his wisdom decided that, you know, we'd finished a couple of big jobs and, for whatever reason, his leaning was to, you know, to cut ties with the old company and create a new entity and move on with the next new job that we signed, which was a major contract at Kingston which was the Lakefront apartments, and therefore it was called ASE Lakefront.15

27. Under further questioning, Mr Tominac was very vague on the technicalities of

how his business was transferred from one company to another. He said that his

understanding was that:

… all the ... vans …all the wages and conditions that we were previously employing, all that carried through to ASE Lakefront. All the equipment … basically the employment continued on with the new company.”16

28. For reasons discussed below, this is not an accurate reflection of the legal

position. It is particularly inaccurate in relation to employment contracts.

Whatever the legal technicalities, however, the evidence shows that Lakefront

began to operate under the name “Allstar Electrical” toward the end of 2011,

and Lakefront was the entity responsible for the significant new Lakefront

project in Kingston.

29. Around this time (the last quarter of 2011) Mr Whipp was working on the

Lakefront project, where Lakefront was the entity with the relevant contract.

However, I am satisfied that at no stage during his employment with Allstar was

Mr Whipp advised that his employer was to change to Lakefront. He continued

to receive payslips and group certificates in the name of Allstar throughout

2012. To the extent that Mr Tominac was in fact doing business through a

different entity, Mr Whipp had no reason know. By his own admission, he did

not care.17

30. On 2 October 2012, Mr Whipp purchased lights worth $199.48 from a trade

vendor on the “Allstar Electrical (Canberra)” company account. These

15 Transcript of proceedings page 15, lines 22-2816 Transcript of proceedings page 68, lines 25-2917 Transcript of proceedings page 85, line 42

8

purchases were for his private use. Mr Whipp’s evidence was that it was his

understanding that he was allowed to use the company account for this purpose,

and get a corporate discount, provided he paid the money back. Mr Tominac

strenuously denied any such thing was allowed. Shortly thereafter, Mr Tominac

summarily terminated Mr Whipp’s employment. In determining this matter, I do

not need to decide whether Mr Whipp’s actions in putting the lights of the

company account was misconduct. However, on any view of the evidence, even

Mr Whipp’s own, he was required to pay his employer back for the lights.

31. Following the termination of his employment, Mr Whipp returned the van keys

to Mr Tominac. He also attempted to repay the $199.48, but Mr Tominac

refused the money. Mr Tominac described his reaction to that as follows:

I was waiting there for him to return with my van, because I couldn't get through. The only mention ever any repayment when I was standing there talking to him to his face saying that no - I think I was a little bit upset at the time. I said, “No. Keep the money. You can give it to the police when they get here. “That's my exact words. That's my exact words.”18

32. Mr Tominac agreed that he had not attempted to recover the money since.19

Apparently, he was prepared to let things go, until Mr Whipp commenced these

proceedings.

33. Mr Tominac’s evidence is that when he inspected the van upon its return, there

was extensive damage to it. Again, however, he did not take any photographs at

that time and did not complete any kind of inspection report. What he did,

instead, he said, was to take the van to ACT Autobody Works for an

assessment.

34. Mr Tominac provided a copy of a quote from ACT Autobody Works that lists

an extraordinary amount of the work that needs to be done on the van, totalling

$11,827.01. The quote is undated20, although Mr Tominac’s evidence was that

the quote was sought shortly after Mr Whipp returned the van. It appears to

have been prepared for an insurer assessor. Mr Tominac agreed that of the work

18 Transcript of proceedings page 47, lines 18-2319 Transcript of proceedings page 48, lines 4-520 There is a date of 18 April 2016 in the bottom corner, but Mr

Tominac’s evidence was that this was the date it was most recently printed, not the date of the quote

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in the quote was not done, with the exception of a broken front light.21 He did

not, at that time, seek to recover any of the costs from Mr Whipp. He did not

provide the quote to Mr Whipp.

35. Once the front light was fixed, the van was given to another Lakefront

employee, Mr Tallon22. Mr Tallon drove the van until sometime in 2014, when

it was “parked” in a yard. It was, by that time if not before, according to Mr

Tominac, “beyond the state of commercial viability to fix.”23

36. Mr Tominac attached photographs of the van to his statement. They show the

van in a very poor state of repair. In this evidence to the Tribunal, Mr Tominac

frankly conceded that these were taken in 2014, some two years after Mr Whipp

had ceased employment, and after Mr Tallon had driven the vehicle for much of

that time.

37. For his part, Mr Whipp admits that he cracked an indicator on the van, but

otherwise denies damaging it.

The employment contract claim – which entity was Mr Whipp employed by?

38. The first ground of Lakefront’s application is that by extensively damaging the

van, Mr Whipp breached a term of his employment contract, being a duty to

take reasonable care of the van.

39. In order to succeed in such a claim, Lakefront needed to establish that Mr

Whipp was an employee of Lakefront at the time that he used the van.

40. As noted above, Mr Tominac’s original position was that Mr Whipp was

employed by Lakefront from June 2009 to October 2012. In support of this,

Mr Tominac tendered a statement entitled ‘payroll advice’, prepared under the

letterhead of Lakefront, and purporting to cover the period “1 June 2009 to

20 March 16”24 (payroll advice). This payroll advice is clearly inaccurate, as

Lakefront did not exist until August 2011.

21 Transcript of proceedings page 51, lines 3-422 Transcript of proceedings page 24, lines 25-4023 Transcript of proceedings page 26, lines 43-4524 Tominac statement, annexure A

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41. Upon reflection at the hearing, Mr Tominac said that he “thought” that Mr

Whipp “started with Oracle” in 2009, although he was “not exactly 100 percent

sure of the entity.”25 The reference to ‘Oracle’ appears to be a reference to

Allstar, after it changed its name.

42. It was apparent from this evidence, and Mr Tominac’s evidence more broadly,

that Mr Tominac did not have a strong grasp on his business structures – by his

own admission, he acted on advice. While this is not necessarily unreasonable,

it further comprises Lakefront’s ability to make out its case, given Mr Tominac

was its only witness.

43. As set out in the facts, above, Mr Tominac assumed, based on advice, that his

employees would simply transfer from Allstar to Lakefront. This is not how the

law operates. An employer cannot simply transfer its employees between

entities without their knowledge or consent. Rather, where one company sells a

business to another, the first business must terminate the employees’

employment, and the new employer may re-engage them.26 Where there is a re-

engagement, provisions in the Fair Work Act 2009 deal with the transfer of

entitlements.

44. It is possible that there was an appropriate process by which employees

‘transferred’ from Allstar to Lakefront. Arguably, the payroll advice could be

read as confirming that Lakefront has recognised Mr Whipp’s ‘prior service’

with Allstar for these purposes. However, with that possible exception,

Lakefront provided no actual evidence of Mr Whipp’s employment with it, even

though those records should have been in its possession. All the evidence

indicated an employment relationship with Allstar.

45. For his part, Mr Whipp argued that he was at all relevant times employed by

Allstar.27 In support of his case, Mr Whipp filed a series of ‘payroll advice’

summaries and PAYG Payment Summaries for the years ending 2009 through

2012 (payment summaries) that purported to be issued by Allstar. When

25 Transcript of proceedings page 16, lines 17-1826 Except in the case of a transfer by share-sale, where the shares in a

corporate employer are sold to another person, but the identity of the employer itself remains the same

27 Witness statement of Mr Whipp, annexure NW-1, NW-2

11

shown the payment summaries, Mr Tominac declined to positively identify

them as Allstar payslips, admitting that he was not familiar with all the

paperwork associated with his business. Howver, he did not expressly suggest

that anything was amiss with the documents, and (notwithstanding an

apparently inaccurate tax file number on some documents) I have no reason to

doubt that are legitimate pay records provided by Allstar to Mr Whipp. I accept

Mr Whipp’s evidence that he never agreed to work for any entity other than

Allstar.

46. Lakefront’s solicitor asked numerous questions of the Mr Whipp which

confirmed that Mr Whipp had never examined the ABN or corporate identity of

his employer, nor given it any real thought prior to these proceedings. No doubt

this is correct. However, this not the point. Certain steps need to be taken to

transfer an employment arrangement from one entity to another, and there is no

evidence of those steps being taken. In the absence of such evidence, I simply

cannot positively conclude that Mr Whipp was, at any relevant time, an

employee of Lakefront.

47. Consequently, while I accept that, in using a van provided by his employment,

Mr Whipp had an implied contractual duty to take reasonable care of the

vehicle. He also had, on any view of the evidence, a duty to ensure that the

vehicle was regularly serviced and maintained. He further had an obligation to

return to iphone. However, to the extent that those duties arose through the

employment relationship, the evidence available shows that they are owed to

Allstar, not to Lakefront. Consequently, those aspects of Lakefront’s claim that

arise from its employment arrangements with Mr Whipp must be dismissed.

The collateral contract claim

48. As an alternative, Lakefront contended that, whatever the employment

relationship between Mr Whipp and Lakefront, Mr Whipp was clearly given the

use of a van (and a mobile phone), that use was governed by contractual terms,

including an implied term to use the van in a reasonable way, and that at some

stage that contract, like the van, became the property of Lakefront. Lakefront

may therefore sue for breach of the contract.

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49. The difficulty I have with this submission is that there is no evidence before the

Tribunal that there actually is a relevant contract between Lakefront and

Mr Whipp.

50. The doctrine of privity of contract provides that only parties to a contract may

sue for breaches of that contract, notwithstanding that a third party may be

indemnified for any breach.28 At common law, this doctrine prevented the

assignment of benefits under a contract, but that position is now more flexible,

at least in relation to the assignment of benefits under a contract. In particular,

section 205(1) of the Civil Law (Property) Act 2006 allows a debt or ‘chose in

action’ to be assigned. This section provides:

(1) An absolute assignment, in writing signed by the assignor, of a debt or thing in action (other than an assignment expressed to be by charge only) is effective at law to transfer the right to the debt or thing in action if written notice of the assignment is given to the debtor, trustee, or other person, (the liable person) from whom the assignor would have been entitled to receive or claim the debt or thing in action.

51. A chose in action is an intangible personal property right recognised and

protected by the law. A right to recover damages for lost or damaged property is

generally a chose in action capable of assignment under this section, and it is

possible that Allstar could assign such a right to Lakefront. However, Lakefront

did not rely on section 205(1) as a basis for its claim, and did not produce any

“written notice of assignment” as required by the section. Indeed, it has

presented no written evidence of assignment or subrogation of the contract, or

any part of it, at all. While such evidence may exist (presumably, Mr Tominac’s

accountants undertook the relevant paperwork to ensure that rights related to

Allstar’s assets were assigned to Lakefront), it was not put before the Tribunal, I

am not prepared to simply assume a transfer was effected.

52. However, let us assume, for the purposes of further consideration, that

Lakefront could establish the existence of a contractual relationship between

itself and Mr Whipp in relation to the van. I am satisfied that an implied term of

any such contract would be that Mr Whipp take reasonable care of the van. To

succeed in making a claim for breach of this term, Lakefront would need to

28 Rookes v Barnard [1964] AC 1129, 1187

13

establish, on the balance of probabilities, that Mr Whipp in fact did not take

reasonable care of the van. The lack of documentary evidence undermines

Lakefront’s ability to do this.

53. The evidence as to current state of the van are the photographs taken by

Mr Tominac in 2014. They confirm that, as at this time, the van was in very

poor condition. However, the photographs do not prove that Mr Whipp was

responsible for the damage. Nor are they evidence of the state of the van in

October 2012 when Mr Whipp returned it.

54. Rather, to establish that Mr Whipp breached the contract, Lakefront would need

to be able to prove two things.

55. First, Lakefront would need to establish the condition of the van at the time it

was given to Mr Whipp. This it cannot do. Even assuming that the van was in

good condition (for its age) when purchased from Mr Platzer, the van was used

by another employee for at least six months before being given to Mr Whipp.

There are no photographs or detailed records of condition at the time it was

handed over from one employee to the other; nor are there records of

maintenance or servicing. While I do not doubt Mr Tominac’s evidence, I

nonetheless find it surprising that an employer would provide an employee with

a vehicle for his use, for an extended period, without keeping a record of the

condition of the vehicle at the time of the loan. Perhaps such conduct

demonstrates an admirable level of trust by an employer in its employees, but it

is a poor risk management strategy, as it makes it very difficult for that

employer to prove any alleged negligent damage.

56. Second, Lakefront would need to show that the vehicle, when recovered from

Mr Whipp, was in such as poor state as to lead to the conclusion that Mr Whipp

failed to take reasonable care of it. Unfortunately for Lakefront, there is little

substantive evidence as to the state of the vehicle when Mr Whipp returned it to

Lakefront.

57. I accept that Mr Tomasic did an inspection of the vehicle upon its return in

2012, but Mr Tomasic is an electrician, not a mechanic. His oral opinion is,

necessarily, subjective. The only other evidence as to the state of the van upon

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its return is the undated quote from ACT Autobody Works, listing extensive

damage and quoting the claimed $11,827.01 to repair that damage. Even

accepting that the invoice contemporaneous, which is problematic in light of the

fact it is undated, the quote is of minimal weight. The individual who prepared

the quote is not named on it, did not give a witness statement, and was not

called to give evidence. That individual’s instructions are not clear. The quote

appears to have been prepared for a loss assessor, rather than with an actual

intention of repairing the vehicle. It deals with extensive cosmetic damage, and

looks to be a quote to return the vehicle to a near-new condition, rather than a

condition that would be expected to be typical of a 12-year old vehicle, used for

commercial purposes. The quote for repairs in any case exceeds what Mr

Tominac paid for the van.

58. The quote also does not deal what proportion of the damage could reasonably be

said to be caused by inappropriate use of the vehicle. The van was used by a

series of electricians working on building sites – tools were loaded and

unloaded. It was not a chauffeur vehicle. Some deterioration over time is to be

expected, perhaps even some considerable deterioration, due to ordinary wear

and tear.

59. In summary, therefore, Lakefront is not able to establish what part of the

damage to the vehicle, if any, was caused by Mr Whipp. It is also unable to

establish what part of that damage is the cause of negligent or unreasonable use

of the vehicle, and what parts are ordinary wear and tear.

60. The difficulties Lakefront has experienced in this matter may have been avoided

with some basic documentation or record-keeping – Lakefront need not have

gone to great lengths, but should have asked those given the use of a vehicle to

at least a sign a document setting out the condition of the vehicle at the time of

handover, the terms upon which it is being loaned – including liability for

damage caused through misuse – and perhaps attaching some photographs. That

none of these basic steps were done in this case made it extremely difficult for

Lakefront to make out its case, and it has not done so.

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61. The same reasoning also undermines Lakefront’ claim in negligence. I accept

that it is likely that Mr Whipp owed a duty to whoever was the owner of the van

to take reasonable skill and care when using the van. However, while I am

satisfied that the van in now in a poor state of repair, Lakefront has not satisfied

me that the damage to the van was caused by Mr Whipp’s lack or reasonable

skill and care.

62. Accordingly, Lakefront’s claim for damages in relation to the van is dismissed.

The mobile phone

63. It was not in contest that Mr Whipp was issued with a mobile phone for work

purposes, shortly after he commenced employment. While I accept that it was a

term of Mr Whipp’s employment that he return to phone upon the cessation of

his employment, there is no evidence that the phone belonged to Lakefront, as

opposed to Allstar. There is also no evidence of any form of transfer of property

in the phone from Allstar to Lakefront. Therefore, notwithstanding that the

Tribunal is satisfied that Mr Whipp is liable to an entity for the cost of the lost

mobile phone, the Tribunal is not satisfied that entity is Lakefront. Accordingly,

I decline to order that Mr Whipp repay an amount representing the value of the

phone to Lakefront.

Recovery of the lighting invoice

64. On any view of the evidence, Mr Whipp is obliged to repay to the private

expenses he incurred on the company account.

65. I accept Mr Tominac’s evidence that this account belongs to Lakefront. This

assertion was, in any case, not challenged by Mr Whipp.

66. Mr Whipp argued that Mr Tominac waived Lakefront’s right to recover the

monies by refusing to accept the preferred repayment on the day it was offered

(ie. the day Mr Whipp’s employment was terminated). I do not accept this.

Certainly, Mr Tominac was extraordinarily angry, initially refused the proffered

repayment on the basis that he was going to report the matter to the police, but

this alone does not amount to a waiver. Nor do these circumstances amount to

accord and satisfaction, as Mr Whipp offered no consideration to Mr Tominac

in exchange for his agreement not to enforce the debt. Mr Whipp has not

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demonstrated any reliance that could give rise to an estoppel (and even if he

had, there may be an issue of ‘clean hands’).

67. Accordingly, I order that Mr Whipp pay to Lakefront the sum of $199.48. I

decline to award interest, on the basis that to do so would not be reasonable

given Lakefront did not seek recovery of the debt in a prompt manner.

The application fee

68. Lakefront, having been partially successful in this application, is also entitled to

half the application fee of $140, being $70.

69. I note that, notwithstanding Mr Whipp withdrew his application, it is evident

that the Tribunal did not, in any case, have jurisdiction to hear it. Accordingly,

Mr Whipp may wish to approach the Register and request that she consider

refunding the application fee he paid.

Orders

1. The respondent/counterclaimant is amended to ASE Lakefront Pty Ltd.

2. The application is withdrawn.

3. The applicant is to pay the respondent/counterclaimant:

(a) $199.48 for lights purchased on its account;

(b) $70 for the application fee.

………………………………..Senior Member H Robinson

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HEARING DETAILS

FILE NUMBER: XD 379/2016

PARTIES, APPLICANT: Nathan Whipp

PARTIES, RESPONDENT: ASE Lakefront Pty Ltd

COUNSEL APPEARING, APPLICANT N/A

COUNSEL APPEARING, RESPONDENT N/A

SOLICITORS FOR APPLICANT Electrical Trades Union of NSW

SOLICITORS FOR RESPONDENT Kami Saeedi Law

TRIBUNAL MEMBERS: Senior Member Robinson

DATES OF HEARING: 26 October 2016, 13 December 2016

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