VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C7024/2020
CATCHWORDS	
Removalist services – claim by consumer under section 184(2)(i) of the Australian Consumer Law and Fair Trading Act 2012 – allegation by consumer that the removalist induced her to engage it by misrepresenting the likely charge – claim by the removalist for payment

APPLICANT	Suzanne Thompson	
RESPONDENT	Kent Relocation Group Pty Ltd ACN:005 040 200	
WHERE HELD	Melbourne	
BEFORE	I. Lulham, Deputy President 	
HEARING TYPE	Hearing	
DATE OF HEARING	25 May 2022	
DATE OF ORDER	31 May 2022	
CITATION	Thompson v Kent Relocation Group Pty Ltd (Civil Claims) [2022] VCAT 608	

Order
1.	This proceeding is dismissed.
2.	[For the reasons set out below, in proceeding C6525/2021, Ms Thompson is ordered to pay Kent Relocation Group Pty Ltd $6,363.67].

I. Lulham
Deputy President			

APPEARANCES:		
For Applicant	In person	
For Respondents	Mr J Barford company officer, with Ms S Hellier company officer	

Reasons
1	Kent Relocation Group Pty Ltd performed removalist services for Ms Thompson in December 2020. Ms Thompson has paid $1,006.34, comprised of a $440.00 booking fee and $550.00 for optional insurance, plus a credit card surcharge of 1.65% percent ($16.34) which offsets Kent’s merchant fee of the same amount. 
2	Ms Thompson issued proceeding C7024/2020, essentially seeking a declaration under section 184(2)(i) of the Australian Consumer Law and Fair Trading Act 2012 that she was not indebted to Kent. Many of her arguments are fallacious, but the relevant allegations are that Kent damaged some of her furniture, and overcharged her in the sense that Kent represented that the service would cost around $4,000.00, and induced her to enter the contract with Kent on that basis, whereas its invoice sum came to be $10,525.00.
3	Kent issued proceeding C6525/2021 claiming payment of its invoice for the services performed. Kent alleges that it submitted to Ms Thompson a written quote based on an hourly rate and not being for a fixed sum before any contract was entered into, that Ms Thompson accepted the quote which thereby created the contract, that Kent performed the removalist services and rendered an invoice calculated pursuant to the quote, and that whilst Kent concedes that it probably damaged a few items Ms Thompson has not allowed it to deal with this issue under the contract but has instead exaggerated the damage in order to attempt to avoid liability to pay for the services. Kent says that Ms Thompson has not submitted details of the alleged damage, and generally has not cooperated in a way which would have enabled Kent to go through its insurer.
4	In the hearing Ms Thompson appeared, and she gave evidence on oath and was cross-examined. Kent was represented by two officers who were not personally involved in the transaction or in the performance of the services. They are both employed by Kent in the credit management side of the business, and so their evidence was largely focused on Kent’s business procedures and on the existence of documents passing between the parties which were acknowledged by Ms Thompson in any event. Kent did not call evidence from the individual who was alleged to have represented to Ms Thompson that she would be charged around $4,000.00,  the removalists who performed the work, or managerial officers who were alleged to have negotiated with Ms Thompson .
5	Both proceedings are ‘small claims’ within the meaning of the Victorian Civil and Administrative Tribunal Act 1998, and the practical consequence of this is that the Tribunal is not empowered to award costs to either party regardless of the outcome, which may well have led the parties to decide to represent themselves in the hearing. The Tribunal is not bound by the rules of evidence, but that is not a statutory licence to the Tribunal to ignore the principles of evidence altogether. Where parties participate in the hearing, and say things which do not amount to evidence – for example, by making statements based on hearsay, or in the form of saying what a party ‘would have done’ – it puts the Tribunal in a difficult position when reaching a legally sound conclusion. I also note that in the hearing Kent objected to Ms Thompson seeking to refer to documents which she had not disclosed before the hearing, but then found itself in the position of realising that it had not disclosed some important documents either. The Tribunal is required to act fairly and in accordance with the substantial merits of the case and may inform itself as it sees fit whilst of course being bound by the rules of natural justice. 
The parties’ agreement
6	Ms Thompson gave evidence that she was moving house from Toorak to South Yarra which is a distance of about 5 km.  
7	Ms Thompson said she had used Kent some years earlier, and she contacted it to make an enquiry. Daniel Pietropaolo came to the house on 3 December 2020 and walked through the property. Ms Thompson asked him whether all of the items would be put in the correct rooms of the new house and Mr Pietropaolo said they would be. Ms Thompson asked for the price and Mr Pietropaolo said that Kent did not give quotes. Ms Thompson said a ballpark figure at least would be needed. Mr Pietropaolo said the removalists would arrive at between 7:30am and 8:00am, and would be finished at around 2:00pm, and that the charge was $440.00 per hour plus a booking fee. Ms Thompson said words to the effect, ‘So that would be less than $4,000.00’ and Mr Pietropaolo nodded. Ms Thompson paid a deposit of $1,006.34 to lock in the removal date of 11 December 2020.
8	This oral evidence of Ms Thompson was not contradicted by Kent. 
9	Ms Thompson acknowledges that Mr Pietropaolo generated some contract documents on 3 December 2020 which she accepted. One of these was headed ‘Quotation and Acceptance’. The document said the quote was ‘based on hourly rate’.
A booking fee of $440.00 covers fuel, tolls and travel to the uplift  –– and travel back (to Kent’s depot) from delivery address. … Once arrived at the uplift a half hourly charge of $220 would begin for 4 MEN and 2 LARGE VANS. Total hours charged on completion of move.
10	The document noted that two large mirrors were to be dropped off at Ms Thompson’s sister’s house, also in Toorak, and that there were ‘No settlements or time restrictions on moving day’.
11	Ms Thompson electronically signed this ‘Quotation and Acceptance’, and a related document which provided for insurance cover, and provided her bank account details to facilitate electronic payment. Ms Thompson also sent an email to Kent at 10:22am on 3 December 2020, expressly accepting the quote.
11 & 14 December 2020: Ms Thompson’s evidence
12	On 11 December 2020 four removalists arrived, Rodrigues who seemed to be the leader, and three other men. They arrived at about 9:00am, in one van. The van had a hydraulic lifting device at the rear.
13	Ms Thompson said that they walked through her house for up to 60 minutes before they started moving anything. They ‘did not look professional’. By 12:30pm the van was not even half full, and Ms Thompson observed one of the removalists taking one item at a time to the van. Rodrigues stayed in the van, sorting out goods as they were taken to the van by the three other removalists. She became concerned at the time frame. She started making phone calls to Kent’s office. Rodrigues told Ms Thompson that the delay was caused by the inexperience of the three other removalists; that two of them were ‘useless’, and that Rodrigues wondered why Kent had supplied such a small van.
14	The move to the new property was not finished by 10:30pm. At that late hour, the removalists left many of Ms Thompson’s items on the veranda of her new property, and left. The removalists presented a document for Ms Thompson to sign, but she refused. Ms Thompson noticed that a small marble table and a mirror had been damaged. The removalists also broke a window frame in the Toorak property. The removalists had left some items behind in the Toorak property. 
15	Ms Thompson called George of Kent on Saturday morning. George said he would get it sorted out on Monday at no cost. Ms Thompson had to cancel a scheduled inspection by the purchasers of her Toorak property which was to occur on Saturday.
16	On the morning of Monday, 14 December 2020 two removalists went to the Toorak property, but called Ms Thompson and said they had to wait until Kent could get them a bigger van because they could not fit the two big mirrors and some tall potted plants into the van which Kent had supplied to them. Ms Thompson knows that the distance between the Toorak property and her sister’s house, at which one of the mirrors was to be dropped off, is only about 1 km. The move on 14 December 2020 was not finished until about 7:30pm and Ms Thompson asserts that much of the time on 14 December 2020 was spent by those removalists waiting for the bigger van to arrive. When these removalists were leaving Ms Thompson’s new property, they required payment. Ms Thompson told them that George had said that there would be no charge for the work done on Monday. These removalists offered a discount of $1,500.00, which Ms Thompson declined.
17	Ms Thompson says that Kent charged her eight hours labour for the work on 14 December 2020, and charged for three men. She assumes, then, that she was charged for the original two removalists plus a driver for the larger van. Ms Thompson has been charged $3,375.00 for 14 December 2020, which includes $375.00 as a booking fee.
18	Beginning on 15 December 2020 Kent pressed Ms Thompson for payment. Charlie Walker emailed her saying that Kent would retain a debt collector if she did not pay. Ms Thompson describes Mr Walker’s behaviour as macho and says that she felt bullied.
19	Ms Thompson conceded that she has not spent any money having her furniture repaired; and that she has not followed any procedures under the contract with Kent to allow an insurance claim to be made in relation to damaged furniture.
20	Ms Thompson also said that she had retained another removalist, when she subsequently moved from South Yarra back to another address in Toorak, and that this removalist only charged her $2,240.00.  Kent objected to this evidence, noting that Ms Thompson had not disclosed any documents in relation to this alleged transaction, and also noting that there was no way to compare what this removalist had allegedly done with the work which Kent had done.
11 & 14 December 2020: Kent’s evidence
21	Kent’s evidence is restricted to documents. Based on information recorded in the ‘Quotation and Acceptance’, Kent says that Ms Thompson’s Toorak property was a four-bedroom house and that the volume of goods being moved was around 66 cubic metres. There were 21 cubic metres of potted plants. 
22	Kent worked on 14 December 2020 because it did not finish the move on 11 December 2020. It was entitled to do this because the contract said, ‘No settlements or time restrictions on moving day’. Kent has no record of having told Ms Thompson that there would be no charge for the work on 14 December 2020.
23	The invoice rendered to Ms Thompson shows the number of hours worked, and that information comes from timesheets. Kent conceded that it had not disclosed the timesheets even though the Tribunal had ordered the parties to give mutual discovery.
24	Kent supplied a van on 11 December 2020 which was of ‘significant size’, according to Ms Hillier. The van was not of the type which is colloquially called a ‘pie van’. Kent does not concede that its removalists were untrained. Whether on this particular job Kent used employees or subcontractors, all of Kent’s workers go through an induction process and are fully trained. Kent hires subcontractors in the period November to March, because that is a busier time of year. Kent does not accept that the hydraulic lifting advice on the van was slow.
25	Kent only charged Ms Thompson for one van on 11 December 2020, despite the words in its invoice.
26	Kent charged Ms Thompson for the appropriate number of hours on 14 December 2020. A customer must be charged from the time the van leaves the depot until the time it returns to the depot.
27	Whilst Ms Thompson gave evidence that she was unhappy with Kent’s performance, its records are to the effect that Ms Thompson was disrespectful to the removalists. Kent asserts that Ms Thompson could have told Kent to stop performing the work if she was unhappy, because the services were being charged for an hourly rate.
28	Kent’s charges are calculated as follows, and the amounts are inclusive of GST:
Booking fee for 11 December 2020 $440.00
Booking fee for 14 December 2020 $375.00
Two trucks and four men on 11 December 2020 at $220 per half-hour; seven hours; $6,160.00
One truck and three men on 14 December 2020 at $375 per hour; eight hours; $3000.00
Insurance $550.00
Sub-total $10,525.00
Less paid $990.00
Total due $9,535.00
29	Kent says that whilst the invoice says that two trucks were supplied, and charged for, on 11 December 2020 in fact Kent is only charging for one van. 
30	Kent says that the charge on 14 December 2020 has been calculated applying a discount, which Kent extended to Ms Thompson as a goodwill gesture and from which it does not resile. Put another way, Kent says that it was entitled to charge a booking fee of $440.00, plus $220.00 per half-hour for eight hours on 14 December 2020, but has elected to charge less.
Terms and conditions of the contract
31	Sub-clause 8.8 requires a client to notify Kent of any damage to goods within two working days but Kent maintains that Ms Thompson did not advise it of any damage until two working days had expired.
32	No other conditions are relevant to this dispute.
Analysis
33	Even though Ms Thompson’s evidence of the alleged representation by Mr Pietropaolo was uncontradicted, I consider that Ms Thompson is bound by the contract. According to Ms Thompson, she said something like ‘So that would be less than $4,000.00’ and Mr Pietropaolo nodded. I do not consider that this amounts to a representation by Mr Pietropaolo on behalf of Kent that Ms Thompson would be charged no more than $4,000.00. As Ms Thompson observed Mr Pietropaolo walking through her house, and as she was familiar with the amount of furniture to be moved and the fact that it included large mirrors and large pot plants which would be unwieldy, and as she was given a written quote that set out an hourly rate without an estimated total or upper limit, I am not satisfied that Ms Thompson’s discussion with Mr Pietropaolo was significant. According to Ms Thompson, Mr Pietropaolo said that Kent did not give quotes, before nodding. I cannot accept that the alleged nod was a relevant representation.
34	It follows that Kent is entitled to charge at the hourly rate in accordance with its quote.
35	However, Kent had contracted to supply two trucks and four men, and instead it supplied one van and four men. Kent says that the one van was of ‘significant size’, and that it was charging per hour not per van. However, it is obvious that less time would be taken placing furniture in two vans, than placing them in one van, because the smaller the available van space the more conscious the removalists must be in the way they place the contents. This is not to say that it would have taken the removalists half the number of hours had they had twice the number of vans, but it must be the case that it took Kent longer on 11 December 2020 than it would have had it supplied two vans as it had contracted to do. The fact that the removalists did not finish until 10:30pm surely shows that Kent took longer than intended.
36	That said, neither party has presented anything like expert evidence to analyse how long would have been taken on 11 December 2020 had Kent supplied two vans. Taking a broad view of the evidence I conclude that Kent would have taken 25% less time had it done so. Therefore rather than charging 14 half hours, it would have charged 10.5 half hours. At $220.00 per half hour, the charge would have been $4,620.00 instead of $6,160.00.
37	Had Kent taken 10.5 hours on 11 December 2020, it would have had more time to complete the job on that day, rather than being required to work on 14 December 2020. Of course, to complete the job it would have worked additional hours above and beyond the 10.5 hours on 11 December 2020used in my calculation. However, had Kent completed the work on 11 December 2020, it would not have incurred a booking fee on 14 December 2020.
38	As Kent has charged for eight hours work on 14 December 2020, when Ms Thompson’s uncontradicted evidence is that it was only finishing off the job on that second day, I conclude that its charge for 14 December 2020 should be reduced to 4 hours. That said, Kent was not obliged to discount the rate to $375.00 – particularly as Ms Thompson did not agree to that discount by paying anything to Kent beyond the $990.00 + $16.34 that she paid when negotiating the contract – and so the charge should be calculated at $440.00 per hour or $220.00 per half-hour. Therefore, rather than charging 8 hours @ $375.00 per hour for the work on 14 December 2020, I find that Kent is entitled to 4 hours @ $440.00, which comes to $1,760.00 instead of $3,000.00.
39	I find that Ms Thompson has deliberately waived her right to claim compensation in relation to her allegedly damaged items. She has not taken the appropriate steps to trigger an insurance claim under the relevant terms and conditions, and she has not produced any evidence in this Tribunal hearing in relation to the damage. On her own evidence she has not spent any money repairing the damage.
40	In these circumstances, I find that the amount payable to Kent is as follows:
Booking fee for 11 December 2020 $440.00
Booking fee for 14 December 2020 $nil
One van and four men on 11 December 2020 at $220.00 per half-hour; 10.5 half hours; $4,620.00
Work performed on 14 December 2020, which could have been done on 11 December 2020 had Kent supplied adequate trucks, $1,760.00  
Insurance $550.00
Sub-total $7,370.00
Less paid $990.00 + $16.34 = $1,006.33
Total due $6,363.67
41	In order to express the outcome of the claim and counterclaim, I will dismiss Ms Thompson’s proceeding C7024/2020, and I will order Ms Thompson to pay Kent $6,363.67 in proceeding C6525/2021.
42	Each party paid a filing fee to commence its application. The Victorian Civil and Administrative Tribunal Act 1998 gives the Tribunal a discretion to order a party to reimburse to the other the filing fee on their application. As I am dismissing Ms Thompson’s proceeding C7024/2020, I would not require Kent to reimburse the filing fee on that proceeding. As I do not consider that Kent substantially succeeded in its proceeding C6525/2021, I will not require Ms Thompson to reimburse the filing fee on that proceeding. 

I. Lulham
Deputy President