Marcel v Cactus Towing Pty Ltd
[2016] QCAT 532
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- Unreported Judgment
- Marcel v Cactus Towing Pty Ltd[2016] QCAT 532
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Marcel v Cactus Towing Pty Ltd[2016] QCAT 532
Marcel v Cactus Towing Pty Ltd[2016] QCAT 532
CITATION: | Marcel v Cactus Towing Pty Ltd [2016] QCAT 532 |
PARTIES: | Arthur Marcel (Applicant) |
v | |
Cactus Towing Pty Ltd (Respondent) | |
APPLICATION NUMBER: | MCDO80-16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 19 October 2016 |
HEARD AT: | Richlands |
DECISION OF: | Adjudicator LeMass |
DELIVERED ON: | 19 October 2016 |
DELIVERED AT: | Richlands |
ORDERS MADE: |
|
CATCHWORDS: | Towing – wheel clamping – distress damage feasant – contract, implied terms – penalty Transport Operations (Road Use Management) Act 1995 (Qld), s 135 Arthur & Another v Anker (unreported, Court of Appeal, England, 30 November 1995) Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 Jamieson's Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 King v Comread (unreported, Magistrates Court, Brisbane, Plaint No 3105/96, per Mr Gribbin SM) Thorton v Shoe Lane Parking Ltd [1970] EWCA Civ 2. |
APPEARANCES: | |
APPLICANT: | Arthur Marcel |
RESPONDENT: | No Appearance |
REASONS FOR DECISION
- [1]Mr and Mrs Marcel and a friend Ms Oliver were attending a play at the Brisbane QPAC on the evening of the 23 July 2016. They drove. Mrs Marcel, a teacher at Brisbane State High School was intending to park at the school but there were no vacancies. A park was found immediately adjacent, a vacant allotment in Cordelia St South Brisbane.
- [2]They observed a prominent sign indicating that ‘parking was at their own risk’, however I accept that they did not see any signs advising that they would be towed away and none existed immediately in front of where they parked. Several other vehicles were already parked in the same parking area.
- [3]They attended QPAC and returned later that night to find their car was missing. Some five other groups of persons were in the car park, their cars also gone. One of these persons found the “Tow away” sign and informed Mr Marcel. He telephoned the number and was advised that if he attended a holding yard in Albion and paid $550 he could have his car back. Faced with little choice he and the others did just that.
- [4]I did not have the assistance of the respondent, as it did not attend the hearing. The respondent was served at its registered office by a professional bailiff. The applicant attempted personal service but was unable to arrange a meeting with a representative. I am satisfied that the respondent was aware of this proceeding and have determined to hear the matter in its absence. I find that the respondent has a towing agreement with the owner and was at all times acting as agent for an undisclosed principal, the owner.
- [5]The applicant contends that the Respondent was not entitled to remove and detain his vehicle or impose a monetary penalty to recover the vehicle.
History
- [6]The practise of wheel clamping vehicles, apparently unlawfully parked upon private land was made an offence by s 135 Transport Operations (Road Use Management) Act 1995 (Qld). This law responded to public outcry concerning the practise of wheel clamping and associated violent incidents.[1]
- [7]So whilst the intention of the Parliament may have been clear the resulting legislation leaves an unfortunate gap.
- [8]
- [9]The Act specifically reserved the right a property owner to tow a vehicle from private property unless the vehicle has already been wheel clamped.[4]
- [10]In this matter, had the applicant's vehicle been detained by wheel clamps, rather than a holding yard no fee could be charged for release and the respondent would have committed an offence.
- [11]I was invited by the applicant to find that the conduct of the respondent offended the section, however upon lengthy consideration of s 135 as a whole, and despite words of inclusion contained therein I can not find that it applies to towing and detention of a vehicle, where a wheel clamp is not engaged. As a result we are left without the assistance of legislation.
The Common Law
- [12]If section 135 above is to be interpreted narrowly such that it applies to a vehicle only detained by immobilising device and not all forms of detention then we are left with the difficulties originally faced by Queensland and Victorian Parliaments in the mid 90s when the clamping reports were first commissioned.
- [13]The Common Law relationship between the parties exists in contract and tort.
Tort
- [14]The entry of Mr Marcel’s vehicle on to private land, without permission is a trespass. This is despite limited signage, other than as to risk and the absence of gate or chain. The question is what flows from such trespass.
- [15]The Tort of distress damage feasant in relation to trespass on land by a vehicle, may provide a potential justification for demanding monies.
- [16]This was discussed in the New Zealand case of Jamieson's Towing & Salvage Ltd v Murray,[5] Justice Quilliam remarked that he had some difficulty and reservations about making ‘a very ancient remedy fit the vastly changed circumstances of modern life’.
- [17]This was an unsuccessful appeal by a towing company for the imposition of substantial damages for unlawfully removing a trespassing vehicle. It establishes the agency status of the Towing company. Early on his honour warns against general reliance on this decision.[6]
- [18]His Honour Quilliam J accepts[7] that ‘there must actual damage done by the thing distrained’. However at p 9 His Honour states, ‘Rather less clear is the question of whether the anticipated cost amounts to actual damage for this purpose’. The Court below following Canadian authority found it did not.[8]
- [19]After consideration of the particular facts Quilliam J finds at pages 12 and 13:
If the remedy of distress damage feasant is to be applied to modern conditions it seems to me to be inevitable that the cost of removing an illegally parked vehicle would need to be regarded as actual damage. For myself I should be most hesitant to extend the remedy any further than is absolutely necessary but in this I think one is left with no sensible option.
- [20]
It appears illogical that the cost of exercising the remedy should be taken as the damage which justifies it. The essence of distress is seizure of a chattel as security for damage which has been done.
- [21]Further the New Zealand decision was cited and not followed by The master of the Rolls, Sir Thomas Bingham in Arthur & Another v Anker.[10] Who had ‘difficulty in accepting the view propounded in Jamieson, that the cost of towing away may on its own amount to actual damage sufficient to justify the distress.’ It would ‘defy logic’ to allow reliance on the cost of distress alone to justify the distress.[11] Lord Justice Neill stated ‘the loss must already occurred or be apprehended at the moment the remedy is put into operation’.
- [22]The latter is the preferable reasoning in this matter. The owner is unaware of Mr Marcells technical trespass, he suffering no actual loss or potential loss of a customer car place, nor has a valid user been displaced. Hence in the absence of actual loss, why would the owner engage in the circuitous nonsense of contriving a fee merely for the purposes of detaining a vehicle to then reclaim that fee.
- [23]In this matter I find there is no damage which can be reasonably complained of and as such, no distress can be levied to justify the retention of the vehicle.
Contract
- [24]The implication of terms into parking contracts have been the subject of much litigation and known as “ticket cases”. If terms are to be implied into this contract the terms need to be clear and agreed by those to be charged with their breach.[12]
- [25]An enforceable contract may exist between parties even though they have not reached an oral or written agreement. Parties may manifest a mutual understanding through conduct that they will be bound by certain conditions and that they will be liable for damages if those conditions are breached. An offer can be made to the world at large, such as by placing an advertisement in a newspaper or posting prominent signs at the entrance to a carpark, and acceptance of an offer can be implied by clear cut and unambiguous performance of the conditions stated in the offer.[13]
- [26]A court will not find an implied consensual agreement between the parties unless the terms communicated are sufficiently specific for both parties' obligations to be ascertained. If a driver parks in ignorance of the offer contained on the signs, if the terms of the offer are unclear, or if the signs are obscured, damaged, or non-existent, it is highly unlikely that a valid contract exists.
- [27]As stated above, I accept that the applicant did not see the tow away signs. They were not prominent or obvious to the extent that Mr Marcel must be taken to have accepted the terms. Mr Marcel contends that the placement of the signs were calculated by the towing company to mislead and given the rewards, this may be correct. See page 5 of the applicant’s material.[14]
- [28]There is in this matter no express consent by the applicant. He did not see the sign, nor did his passengers,[15] nor do I believe the other five vehicle owners saw the signs as they only discovered them after walking around the carpark looking for them, after the removal of their cars.
- [29]They are apparently placed some three meters high and therefore not illuminated by vehicle head lights. There is no sign in front of each bay explaining the terms, as is common in shopping centres.[16]
- [30]It is not a term of the agreement to park the Applicant's vehicle that he agreed to his car being towed. The towing of the vehicle was unlawful.
Fairness
- [31]
Penalty
- [32]An amount demanded for a breach of a contract is a penalty and unenforceable if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.[19]
- [33]The stipulated sum is an unenforceable penalty because it is grossly disproportionate to any conceivable loss suffered. It is grossly disproportionate to the value of the car detained and I accept that the fee is greatly in excess of any commercial market rates for comparable towing.
Public Policy
- [34]To the extent it is relevant, the applicant’s anecdotal material discloses cases of vulnerable persons, particularly females who alleged to have been left stranded late at night or after their work in unsafe circumstances when they have found their car towed by the respondent or other similar operators.[20]
- [35]Any consideration of the fairness or merits of such terms should give appropriate weight to these matters. Particularly those cases where the transaction quite clearly has the pursuit of profit for the towing company, rather than the deterrence of unauthorised parking, as its primary intention.
Conclusion
- [36]For the reasons set out above, I find that the Respondents acted unlawfully in detaining the Applicant’s vehicle without justification or his express consent. If such a term was ever implied into the contract, it is both unfair and a penalty and would be struck down accordingly. I order that Respondent repay to the Applicant all fees and reasonable search, service and filing costs in the sum of $684.00 within 7 days.[21]
Footnotes
[1] “The Queensland State Government has expressed a desire to resolve the issue of wheel clamping. In a Ministerial Statement, the Attorney-General and Minister for Justice recognised that wheel clamping is “…an issue which has caused a lot of confusion and anger in the community, and which necessitates the immediate attention we are giving it” Hon Denver Beanland MLA, Attorney General and Minister for Justice, ‘Wheel Clamping’, 7 March 1996, Ministerial Media Statements 26 February 1996 to 8 March 1996, p 13. Quote research paper Peter Bartholomew.
[2] Transport Operations (Road Use Management) Act 1995, s 135(5).
[3] Discussed in detail in, The High Court of New Zealand in Jamieson's Tow & Salvage Ltd v Murray [1984] 2 NZLR 144.
[4] Transport Operations (Road Use Management) Act 1995, s 135(6).
[5] [1984] 2 NZLR 144.
[6] Ibid at page 5. This is not therefore a suitable case for any definitive findings on the general application of the remedy of distress damage feasant as it may apply to the operations of tow truck firms.
[7] Ibid at page 6.
[8] Following R v Howson (1966) 55 DLR (2d) 582.
[9] [1984] NZLJ 81.
[10] (Unreported, Court of Appeal, England, 30 November 1995).
[11] Lord Justice Neill agreed with the Master of the Rolls.
[12] Thorton v Shoe Lane Parking Ltd [1970] EWCA Civ 2.
[13] See Carlill v Carbolic Smoke Ball Co. [1893] 1 QB 256.
[14] Summary: The applicant contends that the signage was deliberately concealed, being placed low on one gate only, being the gate that can not easily be seen when accessing the property from the only direction available from a one way street. (The applicant provides anecdotal photographs of signs placed in the same position upon a one way road at another site near the Normanby). The balance of signs, three I believe are at the far end of the carpark and can not be seen from the road - see photo on page 2 of the applicant’s material.
[15] See the statutory declaration provided in the applicant’s material.
[16] See photo on page 2 of the applicant’s material.
[17] Cheshire and Fifoot’s Law of Contract 7th Australian Edition at [10.49].
[18] Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’).
[19] Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.
[20] See pages 5 to 10 of the applicant’s material.
[21] I have had some difficulty in obtaining original local precedent upon this topic, particularly that which is unreported and accordingly I have borrowed extensively from Peter Bartholomew who published Research Bulletin 6/97 for the Queensland Parliamentary Library and also ¨The Report upon the review of the practise of immobilising and removing trespassing vehicles on private property¨ and the research of its authors in uncovering unreported decisions and those from foreign jurisdictions.