VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION 
CIVIL CLAIMS LIST	
vcat reference No. C5876/2019	
CATCHWORDS	
BAILMENT Standard of due care and skill under bailment for reward for repair in respect of an electric motor cycle; analogous to standards in contract and tort. Bailment for reward where the reward was not paid to respondent bailee by applicant bailor, but paid by a third party. Tripartite relationship discussed: Morris v C.W. Martin & Sons Ltd [1996] 1 Q.B. 716. 
BURDEN OF PROOF Bailment for custody, complexity of interlocking burdens: N E Palmer, Bailment, 2nd edition. Dual nature of bailment for custody and bailment for repair with different burdens of proof. 
AUSTRALIAN CONSUMER LAW Parallel application of the Australian Consumer Law, s60 guarantees for due care and s62 time for completion to be within a reasonable time. 
DAMAGES For breach of bailment at common law, damages considered in like manner to contract and tort; as to contract: Czarnikow Ltd v Koufos (The Herron II) [1969] 1 AC 350.  Difficulty of assessment no bar to grant of damages: Fink v Fink (1946) 74 CLR 127. Interest claimed on cost of loan for alleged replacement vehicle, not accepted as properly analogous to claim for cost of hire car: Hungerfords v Walker (1989) 171 CLR 125 distinguished; Athanasopoulos v Moseley [2001] NSWCA 266 considered. No logical analogy between a loss related to opportunity cost money caused as a direct consequence of a defendant’s error, and interest payable on a private car loan not causally related to a breach of bailment for repair. 	

APPLICANT	Peter Parkins	
RESPONDENT	Procycles (Hornsby) Pty Ltd ACN 001 794 583	
WHERE HELD	Melbourne	
BEFORE	MJF Sweeney OAM, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	6 April 2021	
closing SUBMISSIONS	Applicant 18 June 2021
Respondent 4 August 2021
Applicant’s reply 11 August 2021	
DATE OF ORDER and reasons	10 December 2021 	
CITATION	Parkins v Procycles (Hornsby) Pty Ltd (Civil Claims) [2021] VCAT 1508	

Order
1.	The respondent has breached the bailment to undertake repairs with due care and skill and failed to take reasonable care of the motor cycle whilst it was in the respondent’s possession.

2.	By 10 January 2022, the respondent must pay the applicant damages in the sum of $15,268.00 as follows:

(a)	depreciated value of the motor cycle assessed at $12,700;
(b)	net transportation fuel cost of $2,568;  
3.	By 10 January 2022, the respondent must pay the applicant interest in the nature of damages on the sum ordered of $15,268.00, pursuant to the Penalty Interest Rates Act 1983, fixed in the amount of $2,781.70. 
4.	All other claims dismissed.
5.	Subject to the respondent making payment in full of the amounts ordered above and upon the respondent giving notice by email to the applicant by no later than 17 January 2022:
(a)	the applicant must make available for collection by the respondent at the respondent’s cost, motor cycle model 2015 Zero DS ZF11.4;   
(b)	the applicant must sign all necessary documents and cooperate in order to achieve the transfer of ownership to the respondent or its assigns and the taking of possession by it; 
(c)	the cost of the transfer of ownership and collection of the motor cycle is at the respondent’s cost. 
6.	The respondent must collect the motor cycle from the applicant by no later than 17 February 2022. If the respondent fails to collect the motor cycle by the due date, the applicant may retain ownership and possession of the motor cycle or may dispose of it at his own discretion and at his own cost.  
7.	Unless the parties otherwise agree, costs are reserved upon the application of the applicant. 
8.	Any determination of costs will be made in chambers on the submissions of the parties in accordance with the following orders:  
(a)	by 10 January 2022, the applicant may file and serve an application for costs, together with a submission in support;
(b)	by 24 January 2022, the respondent must file and serve its response;
(c)	by 31 January 202, the applicant may file and serve any reply; 
(d)	Submissions in support and response must not exceed 4 pages in length and be not less than 12 point pitch. Reply submission must not exceed 2 pages.

9.	The Principal Registrar is directed to refer the file to the Member on 7 February 2022.  

MJF Sweeney OAM
Member			

APPEARANCES:		
For Applicant	Mr A Blair of counsel 	
For Respondent	Ms A Hando of counsel  	

Reasons
THE DISPUTE 
1.	On 11 December 2015, the applicant purchased a new electric motor cycle from a retailer, Mototecnic Pty Ltd, of Knoxfield, Victoria (motor cycle), at a cost of $17,500, including additional warranties. Mototecnic is no longer in operation.
2.	The motorcycle was manufactured by Zero Motorcycles (Zero), a corporation located in the United States of America.    
3.	The motorcycle is powered and operated by electricity stored in a lithium ion battery pack which is integrated into the motor cycle. 
4.	Almost two years later, around mid October 2017, the applicant says he noticed:
(a)	that the motorcycle was not charging to 100%;
(b)	over time the charge was slowly dropping;
(c)	the charge eventually dropped to 82% over eight hours, at which level it was not viable to ride at night;
(d)	for travel home from work, between 60 to 80 kilometres distant, speed was reduced to a maximum of 40KPH, travelling downhill; and
(e)	the motor cycle was dangerous to use in this condition.  
5.	Around 20 October 2017, the applicant contacted Zero concerning the issue. After a series of communications, on 10 February 2018, Zero advised the applicant to contact the respondent, who it advised assists it with its service needs.
6.	On or about 4 March 2018, after being contacted by the applicant, the respondent collected the motorcycle for transport to its premises at St Peters, New South Wales. The applicant alleges that at the time of collection, the motor cycle ‘was capable of functioning’. It had an odometer reading of approximately 28,700 KM.  
7.	On or about 14 December 2019, the motor cycle was returned by the respondent to the applicant’s premises.  
8.	The applicant submits that the relationship between the parties is one of bailment for reward. It contends that the terms of the bailment were:
(a)	for the respondent to take possession of the motor cycle;
(b)	rectify a faulty charger; and
(c)	return the motor cycle within a reasonable time,
under Zero’s warranty at no cost to the applicant.
9.	The applicant claims breach of the terms of the bailment agreement by the respondent not rectifying a faulty charger and failing to return the motor cycle within a reasonable time. 
10.	The applicant further claims breach of the bailment agreement by the respondent failing to maintain and properly care for the motor cycle whilst in its custody by failing to maintain a charge in the battery and allowing the charge to become depleted, thereby rendering the battery non functional. 
11.	The applicant claims damages for depreciated value of the motor cycle and consequential losses in the sum of $33,278.23, plus interest.   
12.	The respondent does not dispute that the relationship is one of bailment arising from the time it took possession. 
13.	The respondent denies it breached terms of the bailment and submits that the terms of the bailment were for the respondent to take possession for the purpose of attempting to carry out a warranty repair. It denies that the bailment agreement was ‘to rectify the Defect’. 
14.	The respondent also denies that it failed to maintain and take care of the motor cycle whilst in its custody. It submits the motor cycle was defective from 2017, before it took possession. It says that the battery would not fully charge when it took possession of the motor cycle in March 2018 and that it would not fully charge when returned to the applicant on 14 December 2019.   
15.	The respondent submits that the motor cycle was connected to a charger whilst in its workshop, but that the battery would not properly charge despite being connected to the charger. It denies that it allowed the battery to become fully discharged. 
16.	The respondent submits that it followed Zero’s directions in an attempt to diagnose and repair the defect but that the defect was not able to be repaired, with the motor cycle being returned to the applicant. It says it was unable to complete the repair because it did not receive a concise, definitive diagnosis of the fault and due to Zero not supplying all necessary parts by the time the motor cycle was returned to the applicant. It says the motor cycle was returned according to the demand made in the applicant’s claim   
NATURE OF THE BAILMENT AND ISSUES FOR DETERMINATION 
17	The facts of the present case involve a bailment of goods, the motor cycle, into custody for undertaking, or attempting to undertake, repairs pursuant to a warranty provided by a third party, Zero. The parties agree that the relationship between the applicant and respondent is one of bailment, more particularly, they agree that it is a bailment for reward.  
18	The bailment in the present case is not simply limited to the element of custody of the motor cycle. If it was, then the issue for determination would be limited to whether the bailee met the required duty of care whilst the motor cycle remained in the bailee’s custody. 
19	The bailment is also coupled with another element. It is an understanding for provision of repair services. In respect of the second element, the applicant submits there was an agreement, a promise, made by the respondent (having taken custody of the motor cycle), to rectify a faulty charger under Zero’s warranty at no cost to the applicant. Together with the custody element, the applicant refers to this as the ‘Bailment Agreement’.
20	The respondent submits there was an agreement to take custody of the motor cycle for the purposes of ‘attempting to carry out a warranty repair’. 
21	Either way, in addition to taking custody of the motor cycle, there is an agreement or understanding within the bailment to attend upon the motor cycle for repair. The applicant pleads the bailment includes the respondent being required to rectify the defect (faulty charger). The respondent denies this and pleads the bailment includes that it attempt to carry out a warranty repair.  
22	The dispute therefore involves two elements. First, the question of what constitutes the agreement or understanding under the bailment agreement in respect of repairs under the warranty (FAPOC) and whether works were undertaken in performance of repairs. Coupled with this is whether the respondent met the appropriate standard, in respect of repairs or attempted repairs, implied under the bailment agreement.  
23	The second element is the question of whether the respondent has met or failed to meet its duty as a bailee for reward in its custody of the motor cycle. As discussed below, there is a clear overlap and many considerations will be common to both elements.                               
24	The issues for determination therefore are:
(a)	whether the terms of the bailment required the respondent to rectify a faulty charger and to do so within a reasonable time? If so, were the repairs carried out to the required standard of care and skill;
(b)	whether the respondent failed to maintain and properly care for the motor cycle whilst in its custody by failing to maintain charge in the battery, or otherwise. 
APPLICANT’S SUBMISSIONS 
25	The following summary is not exhaustive of the applicant’s submissions and evidence.  
26	It is not disputed that a bailment arose and subsisted between the parties from the time the respondent took delivery of the cycle on or about 4 March 2018 until its redelivery to the applicant on 14 December 2019.   
27	It is also not disputed that the bailment may be characterised as a bailment for reward.
28	Around the middle of October 2017, The applicant said he noticed that the motorcycle was not charging to 100% and that over time the charge was slowly dropping.
29	He says that the charge eventually dropped to 82% over eight hours, at which level it was not viable to ride home at night. The applicant works between 60 to 80 kilometres away from his home. With his speed reduced to a maximum of 40KPH in ‘limp mode’, travelling downhill, it was dangerous to use the motor cycle in such condition.  
30	The applicant communicated with Zero in the USA, in particular with Brian Simmons, an engineer. There were email exchanges between 10 October 2017 and 10 February 2018, after which Zero referred the applicant to the respondent. The trail of emails were tendered in evidence. 
31	During the period of communications between the applicant and Simmons, the applicant sent Simmons the motor cycle’s battery and motor logs. By email sent 10 February 2018, Simmons replied: 
The MBB log attached shows me that the charger is faulty. It is charging at full power until the pack [battery] reaches about 108-110V, when it tapers off dramatically and barely pumps any charge at all into the pack. We will need to get you a new charger to alleviate this problem.
A firmware update will not likely solve much. It may have a small effect on how the state of charge is reported but probably will not free up any extra range, so your commute is still at risk until a new charger is installed.
32	By an email sent later that same morning, in response to a query by the applicant, Simmons stated:
… The charger replacement will certainly be covered under warranty since it is clear that this issue began while the bike was under warranty.
33	When the applicant contacted the respondent, in accordance with the recommendation from Simmons that the motor cycle be taken to them, the respondent acknowledged that Zero had already been in contact with them. Arrangements were made for the motor cycle to be picked up by the respondent, which was done on or about 4 March 2018.
34	The applicant states that at the time the motor cycle was collected it was functioning in the reduced manner described above. The applicant submitted that the respondent ‘took the motor cycle on a representation that it could repair the vehicle under warranty’. In his evidence, he said: ‘they indicated they could fix it.’ 
35	The applicant, in his FAPOC, states he contacted the respondent at least once per month by telephone. In his evidence in chief, he said he communicated with the respondent on only a few occasions, indicating approximately a total of 3 times, during the time the motor cycle was with the respondent. He said that he did not ask for the return of the motor cycle and nor did he want it returned unless it was fixed. He said that after its return, the motor cycle did not work at all, that there was no power and when the key was turned, there was no sign of life, it was sun faded with a bit of rust. He said it was not in the same condition that it was compared to when he had given it to the respondent.
36	Following the return of the motor cycle, the applicant said that he plugged the motor cycle into power to let it charge for a while. It was in the driveway and he was keeping an eye on it when ‘something went pop, and some smoke came out, and I unplugged it and I haven’t touched it since’. 
37	The applicant tendered a number of emails passing between Simmons and the respondent’s Scott Norman, its Service Manager and its former Workshop Manager. The relevant chronology is:
(a)	communications between applicant and Simmons from 10 October 2017 to 10 February 2018, referred to above;
(b)	motor cycle picked up by respondent on or about 4 March 2018;
(c)	emails, as tendered, between Simmons and Norman from 2 June 2018 to 16 August 2019;
(d)	motorcycle returned to applicant on 14 December 2019.  
38	The tendered emails included the following:
(a)	2 June 2018, Norman to Simmons: Norman provides a general report to Simmons about five Zero motor cycles then with them for diagnosis and repair, including the applicant’s motor cycle. Apart from the applicant’s motor cycle, two have been diagnosed as requiring replacement of the charger. (Evidence not given about whether these motor cycles were similar in design to the applicant’s charger/battery assembly);          
(b)	4 June 2018, in response, Simmons to Norman: advises on the use of ‘logmeinrescue’ system to allow Simmons to remotely control the respondent’s computer to provide assistance;
(c)	4 June 2018: Simmons requests Norman to update the motor cycle’s firmware, attempt charging again and then send the logs to enable analysis;
(d)	11 June 2018: Norman advises Simmons that actions completed but that 95% charge still the highest able to be reached;
(e)	12 June 2018: Simmons says he cannot see any activity after the firmware update and requests Norman to attach logs after the charger has been attached; 
(f)	 4 July 2018: Norman sends logs as requested;
(g)	6 July 2018: Simmons replies and says: ‘Thanks for the update. I see that the charger is tapering off too early so this charger should be replaced under warranty.’;
(h)	30 November 2018: Simmons asks Norman if the applicant’s bike is still in the possession of the respondent as the respondent has been asking for an update;
(i)	30 November 2018: Norman replies and advises they still have the bike, that they ordered a charger some time ago but it hasn’t arrived; 
(j)	30 November 2018: Simmons advised that the order for the charger appears to have been shipped, but will check;
(k)	7 December 2018: Simmons advises that the charger was shipped and was delivered to the respondent on 7 June 2018 and receipt signed by one D. Amien. Simmons queries whether it is possible the charger was used in another bike or misplaced;
(l)	16 April 2019: Simmons advises Norman that he has an urgent need for an update on the respondent’s case, asking if there is any update on the location of the charger. Simmons states: ‘I also fear for the health of this battery if it has been sitting for too long uncharged. Please let me know if we should send a replacement charger.’;
(m)	16 April 2019: Norman replies that cannot locate the charger. It may have been used on another bike they were trying to diagnose or may have been sent off as a defective part. Norman requests that another charger be sent;
(n)	6 May 2019: Norman to Simmons asking if Simmons is free to assist in the diagnosis;
(o)	Sundry emails about Norman and Simmons trying to get a mutually workable time to communicate;
(p)	30 July 2019: Simmons to Norman stating: ‘On the Parkins bike, please use the attached diagram to measure the pack voltage to be sure that that reason the bike is not turning on is truly due to the pack [battery] being fully discharged.’;
(q)	31 July 2019: Simmons to Norman giving advice how to access the battery to use a probe to test charge;
(r)	14 August 2019: Norman to Simmons advising that a blown fuse has been fixed; tested voltage at 114 volts, ‘No charge or ignition function possible … The main contactor cannot be heard to activate. Not sure where to go next with this one, can you advise?’;
(s)	 16 August 2019: Simmons emails his team, copy to Norman, asking his team to assist Norman with diagnosing the bike from this point.
39	The applicant gave evidence about the quantification of his claim for damages and consequential losses. Submissions were made on the on the quantification of the loss claimed for the motor cycle and for consequential damages. 
40	The applicant’s wife, Ms Katherine Parkins gave evidence on her conversation with Norman at the time of the return of the motor cycle, including that she did not agree to accept its return. She also gave evidence on the purchase of a replacement vehicle and its use.   
41	The applicant submits that the respondent took the motor cycle on a representation that it could fix it. 
42	The applicant also submits that the respondent bears the ‘onus of disproving that its negligence caused the complete deterioration of the Motorcycle’s function.’  
43	The applicant submits that, to the extent that the respondent asserts it had connected the motor cycle to a power source, that alone is insufficient to discharge its onus of proof and cause the onus to shift to the applicant. 
44	The applicant’s evidence is that the charger was defective from the start of the bailment and utilising a defective charger for maintaining battery charge is not an action of the respondent that can prove it took due care of the motor cycle whilst in its possession. The applicant submits that the respondent provided no evidence that the mode of care taken is a sufficient or adequate means of protection of the motor cycle where the motor cycle appeared to suffer from a faulty charger.
45	The applicant submits that the motor cycle, upon its return and at the end of the bailment, had ceased to function entirely.
RESPONDENT’S SUBMISSIONS 
46	The following summary is not exhaustive of the respondent’s submissions and evidence.  
47	The respondent acknowledges the onus of proof falls on the respondent to either prove that the bailee has taken reasonable care of the goods, or that any failure to do so did not contribute to the loss. 
48	It submits the applicant conceded in cross examination that no representation was made or guarantee given that it could fix the motor cycle. 
49	Further, the motor cycle could not be fixed due to parts required for the repairs not being available. The motor cycle was returned to the applicant in response to the claim made in his FAPOC. 
50	In relation to care whilst in its custody, the respondent submits that the motor cycle was at all relevant times connected to a charger and the battery was not allowed to completely discharge. Further, that Norman gave evidence that he measured 114 volts at the main outlet of the battery which indicated that the battery had operating charge in it. In this regard also, Norman advised the state of the voltage to Simmons by email. 
51	The respondent submits that the evidence of Norman as to how the motor cycle was stored was not challenged by competing evidence of the applicant. It submits that it follows the evidence of the respondent is not displaced and that it must be regarded as having afforded reasonable care.    
52	The respondent submits that the applicant failed to adduce evidence that causally linked any action or inaction by the respondent that caused the damage alleged. Further, that any alleged damage has not been properly particularised. It submits, in effect, that the making of an inference as to the alleged damage is not open to the Tribunal.  
53	On the question of damages claimed, quantum, the respondent submits that there is a lack of evidence to support a finding that the motor cycle has a nil value. It submits that the applicant must first show that the motor cycle has suffered damage. This appears to be a repetition of the submission summarised in paragraphs 50 to 52 above.
54	The submission continues with the contention that, as to quantum, insufficient evidence of a reliable nature was given to support the claim as to the value of the motor cycle or the value of a replacement battery. It submits that if a finding is made against the respondent, then in respect of damages, it relies on the evidence of Norman as to the depreciated value of the motor cycle and cost of a replacement battery. 
55	The respondent submits that the applicant’s claim for cost of a replacement vehicle is not recoverable as the evidence points to the vehicle being purchased for reasons not causally connected to the alleged malfunction of the motor cycle. It also submits proper allowances have not been made in the calculation of quantum in respect of the cost of petrol claimed.
LEGAL PRINCIPLES 
56	It is now reasonably settled law that bailment may exist independently of contract and tort and that the common law liabilities of a bailee may be significantly different from those which would be imposed under the law of tort. The distinctions between bailment and tort relate both to the creation of particular duties and to the machinery for their enforcement. 
57	It is important to understand the legal principles identifying a bailment for reward. Discussing bailment for reward, Palmer on Bailment (Palmer) notes that any benefit, financial or otherwise, will suffice to identify a bailor or bailee as one for reward. The source or origin of the reward is immaterial in a bailment for reward compared to the importance of the source in contract for establishing consideration and privity. 
58	This distinguishes a bailment for reward from a contract of services for repair. The applicant submits that ‘properly construed the bailment that arose in the present proceeding was a bailment for reward.’ That is not in dispute. In any event, there does not appear to be the necessary consideration to support a contract for repair between the parties and nor have the parties sought to assert the same. 
59	In a bailment for reward the source of the reward may derive not from the bailor but from a third party source. To constitute a bailment for reward, the reward must be at least within the contemplation of the bailee for the bailee to qualify as a bailee for reward. Again, as Palmer notes, somewhere at the back of the benefiting party’s mind there must exist some prospect of advantage. 
60	It is common for bailments for reward to arise from the undertaking of repairs where a tripartite relationship exists. This is usual in the case of motor car insurance claims where the owner bailor places the car with the repairer bailee for repairs at the instruction of the third party insurer. 
61	In the present case, the position is analogous to the insurer situation. The motor cycle has been placed by the bailor applicant with the respondent bailee, in essence, upon the advice or direction of the third party manufacturer under warranty, given the limited number of appropriately qualified repairers in Australia. The delivery to the respondent is for the purpose of repair, or attempting repair, under the warranty and, incidental to that, is the custody of the goods for safe keeping until the goods are returned.
62	In respect of the first element of the bailment, the standard of care applicable under the bailment, so far as the goods are to have work performed on them and are not the subject of a contract between the parties, according to the commonest formulation at common law, is one requiring reasonable, due or proper care and skill.The degree of skill and care is very similar to that implied under contract. 
63	In respect of the second element, the standard of care applicable under the bailment, so far as the goods are to be kept safe during custody, is one of reasonable care. The overlap of considerations of standard of care common to the repair element and the custody element of the bailment are clear.
64	In addition, the guarantees provided under the Australian Consumer Law (ACL) have application. S60 of the ACL is a guarantee that the services will be rendered with due care and skill. The explanatory memorandum identifies a twofold responsibility of an acceptable level of skill and of due care in supplying the skill. Also of relevance is s62, a guarantee that the services will be supplied within a reasonable time. 
65	The guarantee of due care and skill under the ACL is taken to be the common law negligence standard. Thus, if a person suffers loss due to failure to exercise due care and skill, compensation may be awarded for the loss.  
66	Whether the respondent has met or failed to meet its duty as a bailee in its custody of the motor cycle, the bailee bears the burden of proving that it took reasonable care of the goods or that the failure to do so, did not contribute to the loss. In contrast, in an action for negligence, the burden generally falls on the plaintiff to prove breach of a duty of care.  
67	The rationale for the placing of the burden on the bailee is said to lie in the fact that, since the bailee is in possession, it is best able to provide an explanation of the misadventure and is most likely to have been at fault if an explanation is not forthcoming. Often, it is only the bailee who knows what care is being taken of the goods. 
68	It is upon the bailor to establish the bailment, by the delivery of goods in a non damaged state or that their condition was superior on delivery compared to the time of redelivery. Then the burden of proof falls upon the bailee to prove that the goods were not damaged, or if already damaged, not further damaged, due to his fault whilst in his care. 
69	Palmer examines a factual situation of a bailment for safe keeping of goods, where the custodianship of the goods by the bailee may have been impeccable but that there was a failure to act with reasonable promptitude and care after an event has occurred which damages the goods. Palmer states that ‘the operation of the various interlocking burdens in this situation is complex’. The complexity of the situation is described as follows:
Once the bailee has discharged his conventional burden by establishing reasonable care as against the original event, the bailor may adduce evidence of a subsequent lack of diligence in failing to take effective steps to counter that event. When such evidence has been adduced, the onus again shifts to the bailee to show that the employment of such diligence would not have prevented the injury of which the bailor now complains. 
… On one point the authorities are virtually unanimous. The bailee, confronted by proof of damage or loss, is not bound to establish precisely how those phenomena occurred. Proof of reasonable care or of the irrelevance of its lack will be sufficient; he need go no further (although it may often be helpful for him to do so) and demonstrate the cause of the injury in question.
… The discharge of the duty of care depends upon a multitude of factors. The bailee’s precautions must be scaled to the value and vulnerability of the goods, the likely hazards, the availability of auxiliary protective mechanisms (both within the bailee’s own organisation and within the general environment in which the goods are stored), the condition of the goods upon delivery, the specific purpose for which the goods have been delivered to the bailee, the professional expertise he has held himself out as possessing. Generally, it will be no defence for him to show that he employed his own resources to the best of his ability, if those resources or facilities are inadequate for the task he has undertaken.    
70	The jurisdiction of the Tribunal to determine the present proceeding arises under s184 and s182 of the Australian Consumer Law and Fair Trading Act 2012 (ACLFTA). Under s 184, the Tribunal may hear and determine a consumer and trader dispute. Under s182, a ‘consumer and trader dispute’ is defined as a claim arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services. 
71	The definitions of ‘goods’ and ‘services’ are given by reference to the definitions contained in s2 of the Competition and Consumer Act 2010. In summary, the definition of ‘services’ includes, in part (a), any rights or benefits that are provided in trade or commerce. 
72	The dispute concerning the bailment for reward, the subject of these proceedings, comes within the broad parameters of the judicial understanding accorded to the meaning of the expression ‘in trade or commerce’. Further, the bailment subsisting between the parties is the relationship by which rights or benefits are provided.  
73	I have referred in paragraph 64 above to the ACL having application to the parties to the dispute. The ACL applies as Victorian law pursuant to s8 of the ACLFTA. The obligations of the respondent bailee include, apart from the matters to be implied into the bailment for reward, relevant guarantees under the ACL. Section 60 provides: 
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
74	Section 62 of the ACL provides: 
If 
(a)	a person (the supplier) supplies, in trade or commerce, services to a consumer; and 
(b)	the time within which the services are to be supplied:
(i)	… ; or
(ii)	is not to be determined in a manner agreed to by the consumer and supplier;
there is a guarantee that the services will be supplied within a reasonable time. 
75	Legal principles concerning damages arising from a breach of bailment (including damages under s236 and compensation under s267 of the ACL), are discussed on the question of damages below. 
DID THE TERMS OF THE BAILMENT REQUIRE THE RESPONDENT TO RECTIFY A FAULTY CHARGER AND TO DO SO WITHIN A REASONABLE TIME? IF SO, WERE THE REPAIRS CARRIED OUT TO THE REQUIRED STANDARD OF CARE AND SKILL? 
76	In paragraphs 13 and 18 of the FAPOC, the applicant alleges the respondent agreed under the bailment agreement to rectify the defect and to do so within a reasonable time. In paragraphs 14 and 18 of the respondent’s POD, the respondent denies this and says the bailment agreement was for the respondent to attempt to rectify the defect.    
77	For this first element, it is for the applicant to prove his case. This is in contrast to the second element for determination, proof of care during custody, where the onus of proof lies on the respondent.  
78	The difference between the claim made by the applicant and the denial by the respondent at first sight appears to be a matter of nuance. The respondent in effect pleads that it did not agree to rectify the defect in the sense that it did not agree to guarantee that the repair could or would be undertaken. This denial is made in circumstances where Zero, the party charged under the applicable warranty, is not a party to the present proceeding. 
79	Notwithstanding, the contention of the applicant is that the respondent agreed to fix the motor cycle defect (the charger) and that the failure or refusal to do so constitutes a breach of the bailment terms. It is for the applicant to prove that a term of the bailment agreement or understanding was that the respondent undertook to fix the motor cycle defect.
80	The applicant gave evidence in chief on the matter in response to a leading question from his counsel, Mr Blair, as follows:
Mr Blair: … At any time during your conversations with Procycles before they collected the bike, did they ever – well, did either you or Procycles ever suggest that the purpose of them taking possession of the bike was to try and fix the problem with the bike. 
Mr Parkins: Yes, it was a warranty claim, and they – they indicated they could fix it. They were a registered – what’s the word – outlet for Zero.   
81	In cross examination of the applicant by the respondent’s counsel, Ms Hendo, the following exchange took place:
Ms Hendo: We made no representations or guarantees – or my client made no representations or guaranteed to you that it could fix the bike --- 
Mr Parkins: No.
Ms Hendo: --- that it could be fixed?
Mr Parkins: No, not verbal – no, there was no instructions they would.  
82	The applicant’s evidence in chief was: ‘Yes … they indicated they could fix it’. He also referred to it as being a warranty claim. 
83	In his answer in cross examination, the applicant agrees that there was no guarantee by the respondent that it could fix the motor cycle.
84	In the tripartite relationship that exists in the present matter, it is not surprising to discern a distinction between attempting to identify and carry out a warranty defect as opposed to agreeing or guaranteeing to fix the defect. Zero, the warrantor, is in a contractual relationship with the applicant. Zero, on the applicant’s evidence, has accepted its liability to remedy the defect and replace the charger. If the defect is not the charger, but something else, it may well be that Zero’s warranty remains applicable under their contract. That is not a matter for determination here. 
85	But it is not a responsibility of the respondent bailee, in its relation with the bailor, in the absence of probative evidence to the contrary, to stand behind the warranty and effectively guarantee the repair of the identified defect. The evidence in chief and in cross examination of the applicant also supports a factual finding that it was not a term of the bailment that the respondent guaranteed to fix the defect. There was no guarantee by the respondent.     
86	Nevertheless, the motor cycle was placed into the custody of the respondent for a purpose and that purpose was, self evidently, the identification and carrying out of necessary repairs. The respondent acknowledges that it was a term of the bailment that the respondent attempt to identify and carry out a repair, the subject of a warranty with Zero. If the required repair was identified then, at the least, it should undertake that repair. It is not a question of guarantee. It is a question of making a repair if identified.  
87	My finding in respect of the first aspect of the above question is that the terms of the bailment required the respondent to identify and carry out the repair, but did not require the respondent to guarantee the same.      
88	The next consideration concerns the standard expected of the respondent bailee under the bailment to identify and carry out the repair.  
89	The responsibilities of the respondent under a common law bailment, as discussed above, are treated as being closely analogous to terms implied under the general law of contract. In paragraph 73 above, I refer to s60 of the ACL, the obligation of rendering services with due care and skill. It is not in doubt that the arrangement or understanding between the applicant and the respondent constituted by the bailment is a relationship that arises out of trade and commerce. The obligations imposed under s60 are therefore imported as a term of the bailment. As noted in paragraph 65 above, guarantee of due care and skill under the ACL is taken to be the common law negligence standard.  
90	It is for the applicant to prove on the balance of probabilities that the respondent has failed under S60 of the ACL (due care and skill), or common law duties under the bailment (reasonable, due or proper care and skill) to carry out its obligation or services under the bailment in attempting to identify and carry out a warranty repair.
91	The threshold inquiry in identifying the relevant services, is to identify the benefits and facilities the supplier is to provide the consumer. It is necessary to identify the actual services to which it is said the statutory guarantee of due care and skill, or the common law requirement, applies.In Scenic Tours Pty Ltd v Moore, it was held that this requires an objective assessment of the dealings between the supplier and consumer to determine the benefits the consumer can reasonably expect the supplier to provide in return for the consumer’s payment.  
92	The reference in Scenic Tours to the benefits being in return for the consumer’s payment is a reference to the nature of the relationship in that case, but as is discussed in paragraphs 57 to 61 above, a bailment for reward arises also where the reward flows by reason of a tripartite arrangement.     
93	In accordance with approach adopted in Scenic Tours, the identification of the services to be provided by the respondent may be described as the identification and carrying out of repairs. The next step is to determine whether, in the provision of those services, the respondent acted with due care and skill and in a timely manner.  
94	What is meant by the expression ‘due care and skill’ and equivalent common law expressions was considered by Marks J in Read v Nerey Nominees Pty Ltd, where the equivalent expression in s74 of the Trade Practises Act 1974 was examined. His Honour held that the expression ‘due care and skill’ might be constituted by a failure to diagnose correctly the fault in the safety system, or because of careless and unskilful work, namely incorrect wiring. He also held that the common law implied into the repair contract a term that ‘the repairs would be carried out in a workmanlike manner and with reasonable skill and ability’. The ACL Guide on Consumer Guarantees provides that, in the supply of services with due care and skill, the supplier must:
•	use an acceptable level of skill or technical knowledge when providing the services and
•	take all necessary care to avoid loss or damage when providing the services 
95	It is noted in The Australian Consumer Law that the guarantee of due care and skill requires the supplier of the services to be careful, skilful and workmanlike, but there is no guarantee that a particular result will be achieved unless that result would be achieved if the services were performed in a careful, skilful and workmanlike manner. That seems to me to be an accurate expression applicable in the present case of requirement to exercise due care and skill, but not the guarantee of an outcome.   
96	The applicant gave evidence towards identifying how, in the service provided by the respondent, it failed to deliver the service with due care and skill (or the common law equivalent). The applicant relies largely on the email exchanges passing between him, the respondent and Zero, which are referred to and summarised in paragraphs 37 and 38 above.  
97	In an email from Zero to the applicant (prior to any engagement with the respondent), dated 10 February 2018, Zero’s Simmons states:
‘The MBB log attached shows me that the charger is faulty. It is charging at full power until the pack reaches about 108-110V, when it tapers off dramatically and barely pumps any chare at all into to the pack. We’ll need to get you a new charger to alleviate this problem.’  
98	Later that same day, Simmons confirmed to the applicant that the charger replacement is covered under the warranty.
99	I refer to exchanges between the respondent and Simmons approximately five months later, in particular the email dated 6 July 2018 from Simmons, where he states: ‘I see the charger is tapering off too early so this charger should be replaced under warranty.’ 
100	Zero, by examining the motor cycle’s logs on several occasions concluded that the charger needed replacing. After advising the same to the respondent on 6 July 2018, the respondent ordered a replacement charger from Zero.
101	Much enquiry and tracing was engaged in to find out why the respondent had not allegedly received the replacement charger. Zero finally provided verification, on 7 December 2018, that the charger had been delivered to the respondent’s premises on or about 7 June 2018. 
102	As late as 16 April 2019, the respondent had not located the charger, with Simmons expressing: ‘I also fear for the health of this battery if it has been sitting for too long uncharged.’ 
103	Simmons’ email of 30 July 2019 refers to the sending of a diagram to the respondent to assist in measuring the battery pack voltage, stating: ‘to be sure that the reason the bike is not turning on is truly due to the pack being fully discharged.’
104	By email from the respondent to Simmons dated 14 August, the respondent advises: ‘No charge or ignition function possible … The main contactor cannot be heard to activate. Not sure where to go next with this one, can you advise?’
105	From the above, it can be concluded that the first diagnosis of the charger likely being faulty was as advised by Zero directly to the applicant on 10 February 2018. The second diagnosis, at least as appears to be so from the emails, is on 6 July 2018 in the exchange between Zero and the respondent. 
106	A replacement charger was confirmed by Zero as having been delivered to the respondent on 7 June 2018. This date suggests that the respondent ordered the replacement charger earlier than 6 July 2028 due to either having earlier diagnosed the problem or having been informed earlier that Zero had made the diagnosis. The evidence did not provide clarification. 
107	In any event, at the latest, the respondent was aware of the need to replace the charger, or that it would be prudent to do so, by 6 July 2018. 
108	The respondent was cross examined as to why the motor cycle did not operate at all upon its return to the applicant. Norman for the respondent said: 
… we didn’t get to the finish – the repair on the bike. It was – like I said, two of three of the parts we we’re still waiting on – oh sorry. One of the parts had not arrived and was returned to the customer. 
109	Norman was further cross examined about what happened to the two parts that were received: 
Mr Norman: I believe in due course they were returned to Zero.
Mr Blair: So they weren’t installed on the bike?
Mr Norman: No.
110	In relation to Simmons’ email to Norman of 6 July 2018, about the charger tapering off too early and that the charger should be replaced under warranty, in cross examination, Norman said: 
… he [Simmons] has instructed me to order a charger. Until it’s fitted and tested I can’t - I wouldn’t be 100 per cent certain if that was the fix or not.    
111	Norman was cross examined about what steps were taken by the respondent to protect the battery charge in circumstances where it had been identified that the charger was defective. Norman answered:
At this stage we had a - charger that was indicating it was charged to 90 per cent … it was the best option we had, was to use that charger until we could get the bike fixed.  
112	The respondent has submitted that the evidence of Norman as to how the motor cycle was stored was not challenged by competing evidence of the applicant. Two matters must be observed here. First the burden of proof rests with the applicant in putting its case on the first element of the bailment, that that the repairs should have been undertaken within a due care and skill and within a reasonable time. Second, the onus is on the respondent for the second element of the bailment, that of safe custody. The overlap of the evidentiary considerations for both is obvious. 
113	But addressing the first element and whether the applicant did not challenge by giving competing evidence, I do not accept the respondent’s submission. The applicant cross examined Norman in some detail, positing that there is little point in using a defective charger to charge a battery. Norman’s response, referred to above, was that ‘at this stage’ … ‘it was the best option we had.’ The stage in time to which Norman refers is the time he was advised by Zero to replace the charger, being 6 July 2018.  
114	The applicant’s evidence, acknowledged by Norman, is that Simmons, on 6 July 2018, instructed that the charger be replaced. Norman said that until the charger is fitted and tested he could not be 100% certain if the charger was the problem. 
115	However, contrary to Norman’s evidence, ‘the best option’ the respondent had at the time was to have replaced the faulty charger with a new charger which was uncontested as having been received by the respondent on 7 June 2018. The failure of the respondent to do so by mislaying the charger and not realising the same or chasing up where it was, over a period of many months, is clear evidence of a lack of due care and skill in the provision of the identified services.
116	Attention to the time of arrival of the replacement charger, or a timely follow up, where the charger was overdue, could be expected of a repairer exercising due care. A repairer exercising skill in the management of its business could be expected to have systems in place for monitoring the repair schedule of customers motor cycles. On the evidence, this was not apparent in the case of the respondent. It was only the follow up of Zero that prompted action on the part of the respondent to try and locate the missing replacement charger. 
117	In relation to what repair works were undertaken, Norman answered in cross examination that of three parts, two were not installed and returned to Zero and the charger was never installed. He agreed that the motor cycle was not fixed and that it would not turn on, but did not dispute that the motor cycle did turn on at the time it was first collected by the respondent. The non installation of all three parts is inconsistent with provision of the services with due care.  
118	The respondent’s evidence of the battery charge reading of 114 volts on 14 August 2109 appeared to be put so as to imply that it had diligently identified that the charger may not be faulty as proof it was not in breach of the bailment to attempt to diagnose and effect repair. The applicant challenged the implied assertion that the charge would have been the same when the motor cycle was returned in December 2019. No measurement of the charge was undertaken between August 2019 and December 2019, with Norman acknowledging that the motor cycle would not start at the time of its return to the applicant. 
119	Given the concerns expressed by Zero about battery health, it should be reasonable to expect the respondent would more closely monitor the health of the battery in circumstances where it is connected to a proved faulty charger. Its failure to do so is inconsistent with provision of services with due care.  
120	The evidence about battery charge of 114 volts also appeared to be put so as to imply that the charger was sufficiently operational to maintain a safe level of charge in the battery, such that the battery was not adversely affected, and thus no breach of the bailment to properly care for the motor cycle whilst in its custody (the second element). 
121	I find that the evidence of the recording 114 volts, being a recording at a point in time, of itself, is not sufficient evidence to support findings that the respondent had diligently identified that charger was not faulty or, to support drawing an inference that the battery remained healthy during the respondent’s custody and possession simply by being connected to the faulty charger. 
122	The battery pack had previously been diagnosed as rapidly tapering off from its charge. Simmons advised the applicant about tapering off and barely pumping any charge at all into the pack as the basis for Zero to conclude the charger was faulty and required replacement. No evidence was given about whether rapid tapering off of the battery charge had ceased to be a problem on 14 August 2019.
123	Diligent and timely installation of a new charger (instead of simply relying on a point in time reading of 114 volts) would have either rectified the problem, resulting in the battery reaching and maintaining full charge, without undue tapering off, or if it did not have that effect, it would have served as an important step in the further diagnosis.
124	The failure to replace the charger persisted over a substantial period, in excess of 17 months. Between the time of the diagnosis exchange between Zero and the respondent on 6 July 2018, up to 16 April 2019, a date on which Zero expressed concerns about the health of the battery if left too long uncharged, the period is in excess of 9 months. 
125	Between the time of the diagnosis exchange between Zero and the respondent on 6 July 2018, up to the testing referred by the respondent (and communicated to Zero) on 30 July 2019, a date on which Zero repeated its concern about the health of the battery, the period is approximately 13 months. 
126	Between the time of the diagnosis exchange between Zero and the respondent on 6 July 2018, up to the return of the motor cycle on 14 December 2019, a date on which the respondent acknowledged that the motor cycle not start, the period is 17 months.  
127	There was no evidence about a test or series of tests between 14 August 2019 and the return on December 2019, either as to recordings of voltage at points in time, or, importantly, as to the characteristic of the charger rapidly tapering off and barely pumping charge into the battery.
128	On this evidence, the strong inference is, consistent with the recommended actions of Zero, that the charger was faulty and should have been replaced in a timely manner. The evidence supports the finding that the charger reaches a peak, then dramatically tapers off and barely pumps any charge at all into the battery pack. Consistent with the evidence of Zero, this heightens the risk of the battery becoming damaged due to becoming depleted of charge with consequent damage to the motor cycle.   
129	In the absence of persuasive countering evidence of the respondent over the period 14 August 2019 until return of the motor cycle, about the faulty operation of the charger tapering off dramatically and barley pumping any charge at all into the battery pack, it is open to the Tribunal to infer, and I find, that the motor cycle would not start due to the battery being damaged by being allowed to become and remain in an unacceptably depleted condition.  
130	Inaction by the failure to obtain and/or install parts from Zero, in particular the charger, to address an identified fault with the charger, where the outcome months later was that the motor cycle would not start, is proof, on the balance of probabilities, that the respondent’s inaction was the cause.      
131	Whilst not necessary to find, in relation to the statutory guarantee under s62 of the ACL, that services to be supplied must be supplied in a reasonable time, the elapse of time in the circumstances described above, including at paragraphs 123 to 126, constitutes a clear breach of the guarantee.   
132	The respondent contends, or the inference may be drawn, that it was unable to complete repairs because the applicant demanded return of the motor cycle, which it submits is evidenced in applicant’s pleadings. Even if it were to be accepted that the pleadings required a prudent repairer to return the motor cycle, I do not accept that, as a matter of causation, the return at the time it was made, 14 December 2019, is exculpatory. By the time of the return, as I have found above, the respondent had already been delinquent in its failure to attempt to make the repair at all, or in a timely manner.  
133	I refer to paragraph 69 above, and Palmer’s comment on the discharge of the duty under the bailment for repair. In particular the following:
… The discharge of the duty of care depends upon a multitude of factors. The bailee’s precautions must be scaled to the value and vulnerability of the goods, the likely hazards, the availability of auxiliary protective mechanisms (both within the bailee’s own organisation and within the general environment in which the goods are stored), the condition of the goods upon delivery, the specific purpose for which the goods have been delivered to the bailee, the professional expertise he has held himself out as possessing. Generally, it will be no defence for him to show that he employed his own resources to the best of his ability, if those resources or facilities are inadequate for the task he has undertaken.    
                                          
134	It is no defence for the respondent to show that it used its own resources to the best of its ability by simply keeping the motor cycle connected to a power source. That approach was inadequate to the specific purpose, requiring timely replacement of a diagnosed faulty charger on a motor cycle known to be vulnerable where its battery is allowed to remain in a depleted state. Under the first element of the bailment agreement, the motor cycle was placed into the custody of the respondent for a purpose of carrying out necessary repairs. Whilst it isn’t a question of a guarantee to repair the defect, it is a requirement for the exercise of due care and skill to make the repair when diagnosed. The diagnosis by Zero was that the charger should be replaced. It was incumbent on the respondent to do so, and in this it failed due to a lack of exercising due care and skill.
135	In breach of the bailment agreement, the respondent failed to undertake the repairs with due care and skill or to make them in a reasonable time or at all. Given the application of the common law standard in determining the rendering of services with due care and skill for a determination under s60 of the ACL (and failure to supply services within a reasonable time under s62), the respondent has also acted in breach of the guarantees under s60 and s62 of the ACL.
136	The question turns to damages. Damages are discussed below, following consideration of the second element of the bailment, that of due care whist the motor cycle was in the respondent’s custody.
DID THE RESPONDENT FAIL TO MAINTAIN AND PROPERLY CARE FOR THE MOTOR CYCLE WHILST IN ITS CUSTODY BY FAILING TO MAINTAIN A CHARGE IN THE BATTERY, OR OTHERWISE?
137	The burden of proof for the second element of the bailment rests with the respondent. The focus is on whether due care was exercised whilst the motor cycle was in the respondent’s custody, demonstrated by the condition at the commencement of the bailment to that at the end of the bailment.  
138	A bailee, as custodian for reward, owes a duty to the bailor. It must safeguard the goods with reasonable care and redeliver them in the condition in which they were bailed. 
139	Once the applicant establishes that the motor cycle was in a worse condition on return compared to the time of delivery to the respondent, the respondent bears the onus of proving that it took reasonable care whilst in its custody, or that the failure to do so did not contribute to the loss.
140	In respect of alleging that a failure to take reasonable care did not contribute to the loss, the burden of proof remains on the respondent bailee. More particularly, this burden requires the respondent, upon proof that the goods were not returned in the same condition, to prove that it did take reasonable care and that there was nothing that it could have done to prevent the loss occurring. The question of causation as to damage remains with the respondent bailee.
141	In paragraph 112 above, I have referred to the substantial overlapping of evidence in respect of both elements of the bailment. It is unnecessary to repeat the evidence.
142	In terms of the damage said to have been suffered, the applicant claims that the motor cycle suffered irreparable damage by the respondent’s failure to maintain charge in the battery, allowing the battery to become depleted and thereby rendering the battery and the motor cycle non functional. 
143	The applicant also submitted that whilst it is possible that the lack of function may have nothing to do with the battery and that something happened during the course of the bailment to different parts of the motor cycle, it is a matter on which the respondent must provide evidence of proof.
144	In essence, the applicant submits that the matter speaks for itself in that the motor cycle was bailed to the respondent in a functioning manner and, when returned, had ceased to function.
145	The condition at the start of the bailment, on 4 March 2018, has been summarised above. It is that the motor cycle was functioning, albeit in the reduced capacity complained of. That general condition is not disputed by the respondent and is confirmed by the email exchanges with Simmons.
146	The condition as of 14 August 2019 was that there was no charge or ignition function possible and that the main contactor could not be heard to activate. When tested at that time, the battery charge recorded 114 volts. 
147	A to the condition at the end of the bailment on 14 December 2019, it is not disputed by the respondent that the motor cycle had no power and would not start. 
148	The question for determination raises the following issue. Does the duty to take reasonable care whilst in custody extend to a duty to maintain the motor cycle in a condition that it would continue to start, in circumstances where the effective operation of the battery charger itself was in issue, if not already identified as being the problem?
149	At the time of taking custody, the respondent possibly knew from communications with Zero that the charger was in issue, and certainly by 6 July 2018, did know that that Zero advised that the charger was faulty and should be replaced. 
150	Quite apart from the bailment for reward to do repairs, in all the circumstances of this case, safe keeping whilst in custody should require that the respondent replace the charger as soon as possible so as to maintain the motor cycle in an operable condition. 
151	This is the more so where the respondent is one of the few agents of Zero for undertaking warranty repairs in Australia. As such, and not denied by the respondent, is that it was aware of the peculiarities of the applicant’s type of motor cycle, including the importance of caring for it in the manner described in Zero Motor Cycle Manual 2015 (Manual).
152	In relation to battery management, the Manual provides the following:
(a)	Item 5.8: a caution that the motor cycle must be left on the charger if it is expected that it will sit in storage or unused for over 90 days. 
(b)	Item 5.8: the power pack [battery] must be charged within 24 hours if fully discharged. 
(c)	Item 5.8: the power pack [battery] must be charged within 90 days if stored fully charged. 
(d)	Item 5.22: over extended periods of time the power pack is to be checked every 72 hours to ensure the cells are balanced and that the power pack is full.
(e)	Item 6.22: the Battery Management System provides visual notification about the status of the power pack. There are four LED lamps that will flash: one red and three green lamps. 
(f)	Item 6.10: describes that a display of four green lamps demonstrates a ‘healthy’ power pack status. If one red lamp is displayed, there is an isolation fault or low power pack charge.    
153	Where the respondent had knowledge from Zero of its diagnosis that the charger was faulty, but did not act in a timely manner to replace it and that the failure to do can cause irreparable damage, the respondent has not met the required duty of care. 
154	Unless the respondent can prove that the charger issue was not the cause for the motor cycle becoming inoperable and not starting, the burden remaining upon it to do so, the respondent must fail in its attempt to prove that it met the required duty of reasonable care. 
155	If the inoperability of the motor cycle is due to other causes beyond the respondent’s control, that is a matter that must be proved by the respondent bailee. The respondent has not presented sufficient evidence to prove this position. 
156	The respondent’s evidence is that the motor cycle charger was at all material times connected to a power source. It asserts that the battery was not allowed to completely discharge. 
157	The respondent says that the motor cycle battery had a charge of 114 volts when tested on 14 August 2019.
158	Against this, the respondent did not provide evidence, as of the date of return of the motor cycle, as to the diagnosed fault of the battery charger dramatically tapering off and not pumping further charge into the battery, with the battery then losing charge.
159	In addition, no evidence was provided of any tests or record of the battery charge in the period between 14 August 2019, when the motor cycle would not start, and its return to the applicant, 4 months later, on 14 December 2019. 
160	There was no evidence about any record of the warning lamps referred to in the Manual as to the health of the battery. 
161	Reference was made to the fuses and that they were repaired. But no evidence was given that it was the fuses that caused the motor cycle to become and remain inoperable. 
162	The respondent has failed to provide evidence of a sufficient nature to discharge the onus. By itself, and in the context of the overall evidence, evidence that the respondent had the motor cycle connected to a power supply is insufficient to exculpate the respondent for responsibility for the deterioration of the motor cycle from a functioning vehicle at commencement of the bailment to a non functioning vehicle at the end.
163	The respondent has breached the bailment by its failure to take reasonable care of the motor cycle whilst in its custody. Given the application of the common law standard in determining the rendering of services with due care and skill under s60 of the ACL, for like reasoning, the respondent has acted in breach of the guarantee under s60 of the ACL.  
164	An assessment of damages payable upon the proved breach is now considered, together with damages arising from breach of the first element of the bailment as found above.  
DAMAGES – LEGAL PRINCIPLES 
165	There is some evidence of a special principle for the assessment of damages which flow from a breach of bailment. In Building & Civil Engineering Holidays Scheme Management Ltd v Post Office, Lord Denning held that at common law in a case of breach of bailment, the general principle is restitutio in integrum. That is, the party suffering the damage is entitled to such a sum of money as will put it in as good a position as if the goods had not been lost of damaged. It is of course qualified by the damages not being too remote. 
166	Generally, however, a special principle has not been developed in respect of damages flowing from breach of bailment, with the courts adhering to analogous conventions applicable in contract and tort.  
167	That being the case, the classic statement for damages under a breach of contract is Parke B’s statement in Robinson v Harman, adopted in C Czarnikow Ltd v Koufos (The Heron II) as follows: 
Where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. 
168	The question for damages for breach of bailment may be considered in like manner. The starting point is, what position would the applicant have been in if the contract had been performed. 
169	In the contractual sense, the law seeks to give the plaintiff the economic value of the performance of the contract at the time when that performance has been promised. Hence damages are generally to be assessed at the date of breach of the contract.  
170	By the same measure, the law seeks to ensure that plaintiff is not undercompensated for loss caused by the breach. But the plaintiff is not entitled, by the award of damages upon breach, to be placed in a superior position to that which it would have been in had the contract been performed. 
171	In addition to damages under the common law of bailment, in respect of a proved breach of the ACL (s60 and s62), damages are claimable under s 236. The High Court, in discussing the analogous s82 of the Trade Practices Act 1974, held that a person who suffers loss or damage in contravention of the relevant provision, including the consumer protection provisions, is entitled to recover the amount of that loss or damage. It held that the right to recovery may be engaged in cases where the contravener can be said to have fallen short of a standard of reasonable care as well as contravene the Act [ACL].
172	In the present case, the question of damages arises for consideration under two heads. First, damages as may arise from the breach of the second element of the bailment, the duty to take due care whilst the goods are in the custody of the respondent. Second, damages as may arise from breach of the first element of the bailment, the undertaking to identify the defect and make repair in a timely manner.
173	The two assessments are different due to the different duties under each element of the bailment. Damages as may arise under the breach, as found above, of the bailment to take due care in custody, are to be measured by comparing the state of the motor cycle at the end of the bailment compared to the state at the start of the bailment. In other words, the state of the motor cycle at the start was already a compromised operation where it would start upon ignition, and operate only in limp mode. The measure of damages may therefore be assessed by determining the value of the motor cycle in its compromised operational state and making an award to that extent only. That is, damages to restore the applicant to the same situation as if the motor cycle was returned from custody in like condition to the start.   
174	However, damages as may arise from the breach of the second element of the bailment, as found above, identifying the defect and making repair in a timely manner, gives a different outcome. This is because, had the bailment to repair been performed, the charger would have been replaced in a timely manner with the motor cycle redelivered to the applicant in working order. That is the situation to which the applicant should be restored had the bailment for reward to repair been performed in a timely manner.  
175	The greater measure of damages arises under the breach of the bailment for reward to repair. I will now consider that question. However, it is unnecessary for me to also consider the lesser damages that flow from breach of the bailment to take due care whilst the motor cycle was in the respondent’s custody. Those damages are necessarily superseded by the assessment made arising from the proved breach of the bailment for reward to repair.
DAMAGES FOR BREACH OF BAILMENT TO REPAIR 
Damages in respect of motor cycle 
176	The respondent submits that the applicant has failed to prove that the motor cycle has suffered damage and that there is no evidence as to the present state of the motor cycle. 
177	I do not accept this submission. The respondent admitted on 14 August 2019 that no charge or ignition function was possible, that the main contactor cannot be heard to activate and that it was not sure what to do. 
178	As referred to above, the respondent’s Norman agreed the motor cycle would not start when it was returned to the applicant.
179	Mr Katter for the respondent, in his affidavit, says he had a telephone conversation with Ms Parkins which included the following: ‘There is no point taking it back, we can’t fix it …’  
180	The undisputed state of the motor cycle upon its return is that it would not start and was inoperable. I have determined above that, on the balance of probabilities, this state resulted due to the failure of the respondent to replace the charger in a timely manner, allowing the battery to become and remain depleted for an unacceptable period of time.  
181	In respect of the appropriate manner to assess damages, the applicant submits on several alternatives. 
182	First, an agreed value of the motor cycle for insurance, as agreed between the applicant and the insurer on 30 November 2018, representing a diminution in value of $16,500. The respondent submits that this is an inappropriate measure and that, according to the experience of Norman, a trade in value of between $5,000 to $6,000 is to be preferred.  
183	Second, alternatively, the applicant submits it is open on the evidence to make an assessment based on the cost of a replacement battery of $15,000.  The respondent submits that there was no probative evidence to support the applicant’s valuation of a battery and installation. The respondent relies on Norman’s evidence that a new battery costs between US$2,250 to US$2,895. 
184	Third, alternatively, an assessment based on resale market price for a similar motor cycle, including as evidenced by private sale information published on redbook.com (Red Book) indicating a range from $12,700 to 415,100.  The respondent submits that, if the Tribunal determines a diminution in value approach is preferred, and a trade in value is rejected, then the Red Book market information for a similarly aged and used motor cycle be adopted at an indicative value around $12,700.        
185	The applicant objects to Norman’s evidence of trade in values. It submits that Norman’s opinion as to trade in value being appropriate was not submitted as the opinion of an expert. It says that Norman did not comply with required independence of an expert or adopt the expert witness code of conduct. Nor was Norman a person with relevant experience as a salesperson. Further, the applicant submits that a trade in value is inappropriate where the motor cycle is now inoperable.   
186	There are challenges in the present case in determining what is the appropriate manner in which to assess damages. However, difficulty in assessing damages is no bar to assessment. The principle that difficulty does not relieve a court from estimating damages, as best it can, has been affirmed on numerous occasions.   
187	Also, in respect of the applicant’s objection to receipt of evidence of opinion, it should be noted that the Tribunal is not bound by the rules of evidence but must act fairly and in accordance with the merits of the case in all proceedings. The Tribunal must of course decide according to law. 
188	With regard to the purported expert evidence of Norman, there is no bar to the receipt of that evidence to the extent it may be relevant, probative and of assistance to the Tribunal, notwithstanding it may be opinion evidence, not come within the exception for experts and not comply with the VCAT practise note for expert evidence. Of course, the weight to be given to such evidence is to be treated with caution. 
189	The first component of the applicant’s claim for an assessment of damages is based on the motor cycle’s agreed value for insurance of $16,500, as of 30 November 2018. The applicant’s submission is that I should adopt the agreed insurable value. However, there is insufficient evidence to demonstrate that such an agreed value bears a relevant or independent objective assessment of the motor cycle’s value at the relevant time. Any range of values may be agreed between parties on goods to be insured. The respective parties’ have their own considerations in deciding what values they may settle on. But those consideration lack for relevance when seeking to determine value on an objective basis. I do not accept it as an appropriate measure.
190	The respondent submits that, instead of an agreed insured value, the estimate of damages should be made on the trade in value. In its submission, Norman has experience about trade in values and estimates the value of the motor cycle to range between $5,000 to $6,000 in and around 2018/2019. I take into consideration the objection to this evidence. Further, Norman did not provide, as he might have done, details of a number of trade in transactions that could give greater weight to what might be an average trade in price across a range of similar motor cycles.       
191	The deciding factor however is whether a trade in value is a reliable measure of damages or reflective of the depreciated value of the motor cycle. I accept the applicant’s submission that a trade in valuation contains elements that are reflective of a value proposition linked to the purchase of a new motor cycle, such that the intrinsic value of the traded item is not easily or accurately discernible. The measure of trade in value is for that reason not accepted as an appropriate means of assessing damages in this case. 
192	The second and alternative basis for assessment submitted by the applicant is the cost of a replacement battery, submitted by it as being $15,000, plus installation. I refer to my reasons above where I have found that the motor cycle would not start on its return and the evidence of the respondent that the motor cycle might not be fixed by installing a replacement battery. Also, there is the further evidence that the battery charger remained in an unrepaired state. 
193	Norman’s evidence is that, regardless of the motor cycle not turning on, it is not a conclusive sign that the battery is discharged. For the reasons given above, including that the respondent’s Katter saying the motor cycle could not be fixed by it, the motor cycle, on its return 21 months later was inoperable and not able to be fixed. 
194	There is insufficient evidence that a replacement battery, if installed at the present time, would be successful in restoring the motor cycle to working condition and have the effect of restoring the applicant to the position he would have been in if the bailment to repair had been performed.  
195	It is not necessary therefore to further consider damages assessed on the value of a replacement battery, or what that value might be. Such an assessment would not serve to restore the applicant to the situation had the bailment for repair been performed. That is the test. 
196	The last alternative submission of the applicant for an assessment of damages is one that is based on second hand private sale market prices for a similar motor cycle. The applicant chiefly relies on the evidenced of private sale information published on Red Book, indicating a range from $12,700 to $15,100.
197	The respondent submits (in the alternative) that, in the absence of a value determined on a trade in approach, the only reliable evidence is disclosed by referenced to the Red Book. 
198	A measure of damages based on the depreciated value of the motor cycle, disclosed by an appropriate market indicator, is in my opinion an appropriate methodology. In my opinion such market information is relevant and more comparable to the second hand nature of the applicant’s motor cycle. In all the circumstances, it is a preferable measure that can serve to make an assessment that will restore the applicant to a situation as if the bailment had been performed. 
199	As noted above, the extracts of the Red Book tendered show prices for comparable motor cycles, at least to the extent that material discloses comparability, that range is from $12,700 to $15,100. The value in the lower range is more appropriate having regard to the number of kilometres travelled as recorded on the odometer, 28,754, between its purchase in December 2015 and collection by the respondent in March 2018.  
200	Subject to paragraph 201 below, the applicant is entitled to damages for the depreciated value of the motor cycle in an amount of $12,700, thus placing the applicant in the position he would have been in if the bailment for repair had been performed. 
201	An applicant is not entitled by an award of damages to be placed in a superior position to that which it would have been had the contract been performed. Consistent with this principle, upon the respondent making the total payments ordered under this determination, the respondent is entitled to take a transfer of ownership and take possession of the motor cycle. 
202	I make the above assessment very much in light of the authorities concerning the difficulty in assessing damages in cases like the present, whereby a court or tribunal must estimate damages, as best it can, within the constraints of the available evidence. 
Cost of replacement vehicle - interest claim  
203	The next head of claim of the applicant is damages for loss of use of the motor cycle, quantified by interest costs on a replacement vehicle (2010 Subaru Forester) in amount of $7,593.80.            
204	The applicant gave evidence that the reason for purchase of the Subaru was for transportation to his work as a replacement for the motor cycle whilst it was with the respondent. Mr Parkins’ evidence was not compelling on this point. The Subaru was purchased on or about the same date as the motor cycle was collected by the respondent. It was purchased in circumstances where another vehicle driven by Ms Parkins had been frequently breaking down and they desired to acquire a reliable second hand family car. Whilst the contract of purchase was not put in evidence, it was not disputed that the applicant or his wife purchased the vehicle on approximately the same date as the motor cycle was collected for repair by the respondent.  
205	The purchase of the Subaru at the time the motor cycle was collected by the respondent supports the inference that the applicant was purchasing it as the replacement for the failed family car. It would be surprising for a person to purchase a replacement form of transport immediately at or about the time of delivery of the motor cycle for repair. At the time of delivery of the motor cycle for repair, it might be reasonably be thought that it would only be a matter of weeks for repairs to be attended to. The greater weight of the evidence points to the applicant’s objective being the purchase of the Subaru as a more reliable family car. The breakdown of the motor cycle was coincidental. It may have been a factor in the applicant’s decision making process, but the overwhelming determinant was to replace the family car.  
206	In support of the claim for loss of use of the motor cycle, quantified by interest paid on the loan for the purchase of the Subaru, the applicant referred the Tribunal to Athanasopoulos v Moseley. Moseley’s case followed the authorities examined in detail by the High Court in Griffiths v Kerkemeyer. Moseley’s case was concerned with an action in negligence and the question of recovery of costs of hire for private use transportation where the vehicle was damaged due to the other party’s negligence. It was decided that such a claim is compensable.
207	In contract, whether such damages are claimable is determined under the rule in Hadley v Baxendale. Under that principle, and as restated in C Czarnikow v Ltd v Koufos, damages are awarded if the defendant should reasonably have foreseen the loss, where, on the information available to the defendant when the contract was made, he would have realised that such a loss was sufficiently likely to result from the breach. 
208	As discussed previously, the law of bailment on the question of damages has broadly followed the principles adopted in contract and tort. 
209	The applicant says that he needed replacement transport for travel to work, due to non availability of the motor cycle, and the Subaru was used to achieve that end. For the reasons given above, I do not accept that the Subaru was purchased for travel to work. It was purchased for private use. 
210	The applicant relies on Moseley as authority for costs of a hire vehicle being compensable to replace the damaged vehicle used for private use. In that case, the hire costs were compensable because the hire costs were actually incurred.  Had the applicant hired a car (or motor cycle) for the purposes of transportation to and from work, the cost of hire would be claimable in line with Moseley’s case, because that was the detriment identified as having been suffered as a result of the loss of use. It would equally come within the foreseeable loss contemplated by Hadley v Baxendale. But that is not the position in the present case. 
211	The applicant submits that, as the hire of a vehicle was not a practical solution in the circumstances, an analogous measure of damages to the cost of hire is the interest repayments on the Subaru during the bailment period. In apparent support of it being analogous, the applicant’s counsel referred to Hungerfords v Walker. Counsel’s reference to Hungerfords case is made without particularity and without stating what the analogy is and why it may have application to the facts of the present case. Determination of issues must be factually driven. Reliance on an authority for support of a proposition is only of value when discussion on the proposition is clearly identified in the authority and where the factual context is relevant and does not give rise to the authority being distinguishable. 
212	Hungerfords case was primarily concerned with the opportunity cost of money. It found, on the facts of that case, that the cost of borrowing money to replace money paid away or withheld, in consequence of the defendant’s breach of contract or negligence, is directly related to the wrong and is not too remote in the sense in which the common law regarded the loss attributable to late payment of damages as being too remote. 
213	Hungerfords was a Chartered Accounting firm. They advised an entity coming under the umbrella of the defendant, Walker, on tax matters. An error was made resulting in Walker overpaying tax to the taxation office over a period of several years. The tax office would not refund all of the overpayments to Walker as they had become statute barred. Walker was successful against Hungerfords in claiming damages for the unrefunded overpayments of tax. In addition, Walker sought damages, to be assessed by an appropriate interest rate, for loss of use of the money which it had paid away and lost as a direct consequence of the defendant’s breach of contract or negligence. 
214	There can be no dispute on what is now well settled law that a wronged party may claim damages for the opportunity cost of capital arising as a consequence of the loss of use of that capital due to the other party’s breach of contract or negligence. However, the facts in Hungerfords case are clearly distinguishable. There is no logical analogy between the loss of use of money caused as a direct consequence of the defendant’s error, and interest payable on a private car loan unrelated or not causally related to a breach of bailment for repair. 
215	The applicant has put the case on the basis that the interest payments are analogous to costs of hire of a replacement vehicle. But, even if it could be established that the interest payments are analogous, which it cannot for the above reasons, no evidence was provided as to the range of reasonable costs of hire of a replacement vehicle in order to discern the appropriate analogy.     
216	An assessment of consequential loss requires the identification of the manner in which the loss of use of a chattel has adversely affected the applicant. The applicant may claim damages to that extent. In the case of being deprived of the use of the motor cycle due to the respondent’s breach of bailment, apart from the costs of transport considered below, the damages may be assessed by reference to the depreciation in value of the motor cycle over a reasonable period, that period assessed by reference to the time the motor cycle was with the respondent for repair. 
217	The applicant’s head of damage as ‘pleaded’ is replacement vehicle to commute to work assessed by reference to interest costs of the Subaru. The case has not been argued, nor evidence put, for an assessment of damages on the basis of depreciation. In the absence of evidence, it not open for me to attempt to make some correlation between depreciation and unrelated interest costs on another vehicle for assessing damages. Moreover, the electric motor cycle is a relatively uncommon type. Any assessment of depreciation would depend on evidence that is particularised as being in respect of that type of electric motor cycle.       
218	Given my finding that the purchase of the Subaru was made for private use, the interest costs on the loan are referrable to private use of the car and not referable to an acquisition made by reason of the breach of bailment to repair.
219	The applicant may claim damages for the cost of transport to work that are referrable to and a consequence of the respondent’s breach of bailment to repair, but that is not the case in respect of interest payable under the loan as an analogue for costs of hiring a replacement vehicle. The claim for damages to the extent based on interest costs is dismissed. 
220	To the extent that the Subaru was used by the applicant to travel to and from work, costs which are directly referrable to that purpose are compensable. In this regard, the claim made by the applicant is limited to a claim for the cost of petrol used for travel to work. This is discussed below.
Cost of fuel
221	The applicant also claims damages for loss of use of the motor cycle, quantified by the cost of petrol used for travel to and from work due to his inability to use the electric motor cycle because of the respondent’s breach of the bailment. Getting to work involved a round trip of approximately 180 kilometres. He says that the average daily cost incurred was $9.99. He claims petrol costs for 649 days, being the period from 4 March 2018 to 14 December 2019.
222	It is clear that the applicant needed to get to work and that the cost of petrol incurred is a cost directly referrable to the respondent’s breach of the bailment. The Subaru, which was acquired for private use, was used by the respondent’s family, including his wife and four children for family and general other uses, including on weekends. These other family use requirements fall outside the scope of compensable damages related to use for work purposes.
223	The applicant claims $9.99 per day for the full period from 4 March 2018 (when the respondent took possession) to 14 December 2019 (when the motor cycle was returned). The applicant’s claim for petrol costs over this total period go beyond those costs which might be regarded as reasonably and probably flowing from the breach of the bailment for the following reasons. 
224	First, the period or days over which the applicant seeks damages for claims related to work usage needs to be adjusted for the time that the applicant was not engaged in travelling to his place of work. The claim for petrol costs over the full period from 4 March 2018 to 14 December 2019 fails to allow for the lesser period that the applicant attended work. He worked a 9 day fortnight. In assessing damages, the compensable time must be adjusted accordingly to exclude the other usage periods which are not work related.
225	Second, the applicant claims for the period commencing 4 March 2018. However, in all the circumstances of the bailment, an allowance must be made for the respondent to confirm and identify the defect and then to make the repair. The applicant appears to acknowledge that a period of time be allowed for the respondent to identify and undertake the repair. In his evidence, he said he gave ‘two months leeway’ before contacting the respondent about progress.
226	A reasonable time should be allowed for the respondent, acting with due care and diligence, to identify the issue, make the repair and redeliver to the applicant in Victoria. The date by which the respondent might reasonably be regarded as first identifying and then commencing repair of the charger, consistent with the diagnosis provided by Zero and the evidence of the charger having been delivered on or about 7 June 2018, is 6 July 2018. It was in Simmons email of 6 July 2018 that Zero clearly identified to the respondent the need to replace the charger. 
227	Allowing an estimated additional two weeks to undertake the installation and return the motor cycle to Victoria following the diagnosis on 6 July 2018, a reasonable completion date is 20 July 2018, if the bailment had been performed in accordance with its terms.
228	Third, the applicant makes no allowance for the taking of a break or holidays. He says he was working on a contract basis. However, over a 21 month period, it is reasonable to assume breaks from work would be taken. An estimate of 6 weeks would not be unreasonable and should be deducted from the compensable period.
229	Bringing the above three matters together, the period of the applicant’s claim, based on work usage, requires adjustment as follows. 
230	The period determined above over which damages may be claimed commences on 20 July 2018 and ceases on 14 December 2019. A period of 512 days. 
231	From the above, a deduction must be made to allow for non work usage for deemed holiday periods referred to in paragraph 228 above. A deduction of 6 weeks, or 42 days, giving a net 470 days. (In the terminology used by the applicant, this equates to 33.57 fortnights).
232	A further deduction must be made for non compensable family/weekend use of the car. The applicant’s use of the vehicle for work is limited to 9 days per fortnight. Family usage of 5 days per fortnight is not compensable and must be deducted. Applying this, 5 x 33.57 = 167.55 days. This is deducted from 470 days above, giving a net 302.45 days.
233	Daily petrol costs are $9.99. Multiplying this by the compensable number days of 302.45 gives $3,021.48.
234	No evidence was given on the cost of electricity that the applicant would necessarily incur as the energy cost of recharging his motor cycle. However, as submitted by the respondent, such a cost does exist and must be deducted from the petrol cost allowed above to provide a net fuel transportation cost. I can only make an assessment on a nominal basis, as best one can. I determine a nominal cost of $1.50 per day, being a total of $453.67. 
235	The assessed compensation allowed in respect of net fuel cost is $2,568, rounded.
Costs of motor cycle registration, insurance and interest payments
236	The applicant claims damages for loss of use of the motor cycle, quantified by the cost of registration, insurance and interest under a motor cycle loan over the relevant period. 
237	In respect of the Subaru, I have determined and assessed in the applicant’s favour damages claimed that are related to loss resulting from the respondent’s breach of the bailment, namely the cost of petrol associated with work usage of the car. I disallowed the claim for interest for the reasons given above.  
238	To this extent, on the case put by the applicant, the applicant has been put in the position that he would have been had the respondent performed the terms of bailment.
239	The applicant submits that cost of registration, insurance and interest under a motor cycle loan are compensable costs because the applicant was not able to enjoy them due to the respondent’s unreasonable period of detention of the motor cycle. 
240	I do not accept that these costs are compensable. The costs are costs that the applicant bears in any event, irrespective of the breach of bailment. As stated above, the applicant has been compensated, in line with the applicant’s claim as made, for allowable costs to the effect of placing the applicant the position that he would have been had the respondent performed the terms of bailment. Had the bailment been performed, the costs of the motor cycle registration, insurance and interest are payable in any event. 
241	To make an award of damages for these costs would have the effect of placing the applicant in an improved position which is not the role of damages. The claims are dismissed. 
Interest in the nature of damages 
242	The applicant claims interest under a number of alternatives. The appropriate head for the Tribunal is pursuant to s184 (2)(b)(ii) of the ACLFTA. This bestows jurisdiction on the Tribunal to award interest in the nature of damages. Pursuant to ss(4), interest may be ordered at the rate set under the Penalty Interest Rates Act 1983, or at a lesser rate if determined appropriate. The interest rate currently applicable as published in the gazette is 10.00%.
243	Interest may usually be claimed from the date of issue of proceedings up to the date of decision. In the present case however, the claim of the applicant was not clearly made out until, in substantial compliance with directions orders, the time of the delivery of the Further Amended Points of Claim on 13 February 2020. The appropriate period for interest to be claimed is from 13 February 2020 to the date of this decision, 10 December 2021, being 665 days. 
244	Total damages as found above are $15,268. Multiplying by the current interest rate of 10% per annum, for 665 days, gives $2,781.70.
Mitigation 
245	In its closing submission, the respondent contends that the applicant failed to mitigate his loss by only contacting the respondent on three occasions throughout the 21 period that the respondent had possession of the motor cycle. 
246	The basis for the submission is not developed beyond the statement that the applicant only contacted the respondent on three occasions. Whilst the applicant agreed that this was the case, there was additional contact by Ms Parkins and communications between the applicant and Zero about the state of diagnosis and repair on other occasions. 
247	It may be that overall communication by the applicant, including those of his wife with the respondent and the applicant with Zero, was relatively sparce, given the circumstances. However, there is insufficient evidence in support of the respondent’s submission that this amounts to a failure to mitigate his loss.
248	Further, the causal link between the relatively few communications with the respondent and the damaged suffered has not been made out. I do not accept the respondent’s submission.
CONCLUSION 
249	In breach of the bailment to repair, the respondent failed to undertake the repairs with due care and skill or to make the repairs within a reasonable time or at all.
250	In breach of the bailment as to custody, the respondent, failed to take reasonable care of the motor cycle whilst it was in the respondent’s possession.
251	By reason of the above determinations, the applicant is entitled to damages as follows:
(a)	depreciated value of the motor cycle assessed at $12,700;
(b)	net transportation fuel cost of $2,568;
being a total sum payable by the respondent of $15,268. 
252	Interest in the nature of damages on the amount found is payable pursuant to the Penalty Interest Rates Act 1983. The applicant is entitled to an order for interest in the amount of $2,781.70.
253	All other claims are dismissed.
254	Upon the respondent making the payments as determined above, the respondent is entitled to take a transfer of ownership and to take possession of the motor cycle from the applicant and to retain the same for its own use or benefit.
255	Unless the parties otherwise agree, costs are reserved upon the application of the applicant, with any determination to be made in chambers on the submissions of the parties in accordance with the orders made.

MJF Sweeney OAM
Member