Katyi V. Eastfield Shopping Centre Case Summary

Kati v Eastfield Shopping Centre

Introduction
Kati has suffered loss and damages while her vehicle was under the liability of Eastfield Shopping Centre (ESC). Whether or not Kati can take a legal action for damages is dependent on there already being a contract between her and ESC and for ESC to have breached the contract. If so, then the main issue of concern is whether Kati will still be required to pay the administration fees as well as the repairs to her car. For Kati to be successful, ESC’s exclusion clause will have to be invalid for them to be held liable for the damages to Kati’s car.

Is the exclusion clause valid?
For the exclusion clause to be valid, it must be included as a term in the contract and cover the breach of liability

that occurred. Furthermore, ESC must have provided sufficient notice to Kati before or at the formation of the contract, see Olley v Marlborough Court Ltd. In addition, the exclusion clause must be expressed as a term of the contract and be included in a contractual document, see Causer v Browne. ESC has satisfied all these requirements as they informed motorist upon entry that they would ‘NOT [BE] RESPONSIBLE FOR THE LOSS OR THEFT OF ANY MOTOR VEHICLE OR ITS CONTENTS’. This allowed them to provide sufficient notice at the time of the formation of the contract, resulting in them being exempt for any damages relating to loss and theft.

Kati has suffered damages to her vehicle from a natural disaster, which occurred under ESC’s liability. This issue is much different as opposed to ‘LOSS OR THEFT’ that was specified in the exclusion clause. Potentially ESC could choose to argue that the clause should be interpreted using Noscitur a sociss, attempt to include damages within this clause. However, Kati argument is still effective as it asserts that the exclusion clause did not cover the breach of liability that occurred to her vehicle. This is a valid argument in Kati’s favour as courts interpret exclusion clauses according to their natural and ordinary meaning, as demonstrated in Darlington Futures Ltd v Delco Australia Pty Ltd. It will also be difficult for ESC to prove that their clause does cover them for natural disasters as during cases of ambiguity, the exclusion clause will be construed against the party relying on the clause. As a result, the clause will be interpreted in Kati’s favour which makes her argument much more compelling. Together, all these factors make ESC’s argument much harder to justify against Kati’s claim, especially since the clause will only cover a breach that has occurred within the scope of a contract, see Council of the City of Sydney v West. In conclusion, it is expected that ESC’s exclusion clause will remain ineffective and that they will be held liable for the damages to Kati’s car.

Must Kati still pay the administration fees?

Whether Kati must pay the administration fees is dependent on whether she received sufficient notice of the terms and conditions of the contract. Aside from the damages to her car, ESC requires Kati to pay administration fees of up to $12,000 for breaching the contract. The issue with this is that Katie was not aware that ESC would tow her car if she left her car overnight, due to her not reading the terms and conditions. However, Kati only left her car overnight, as she was emotionally distraught after hearing that her vehicle was destroyed.

As Kati entered the valet parking and handed her keys to Angus in exchange for her ticket, consideration was provided making the contract enforceable in a court of law. Although Kati did not read the large notice sign, she implied her acceptance to the offer by continuing to act consistently with the terms of the offer, see Brambles Holdings Ltd v Bathurst City Council. Directly under the exclusion clause provided by ESC was a term stating that ‘PATRONS AGREE TO ABIDE BY ALL TERMS AND CONDITIONS DISPLAYED OR COMMUNICATED’. ESC can also argue that whilst Kati was unaware that there were further terms and conditions included on the ticket, she should still be bound by the terms of the contract. This is demonstrated in Curtis v Chemical Cleaning & Dyeing Co, which demonstrates that Kati should be still bound by the terms of the contract even if she did not read them, provided that the terms

of the contract were not misrepresented.

Before choosing to use the valet parking services, Angus did not provide alert Kati to the list of further terms and conditions until after she made a breach of contract.

Kati could argue that she made a unilateral mistake, which ESC was fully aware and took advantage of. Whilst Kati was not aware of a fundamental term of the contract, the right of ESC to tow her car, she may find difficulty to prove that ESC did engaged in unconscionable conduct. Furthermore, the contract must be written and will become voidable not void, meaning that Kati can choose to end the contract but may have to pay any fees occurred up to that point. This is an alternative action available to Kati but it does not provide the most desirable

outcome.

On the contrary, Kati can argue that she did not receive sufficient and reasonable notice of the terms and conditions of the valet parking service. As demonstrated in Thornton v Shoe Lane Parking, ESC issued a fairly harsh term, requiring them to provide more time and reasonable notice than 3 hours for Kati to make a decision. In addition, the list of further terms and conditions was provided after consideration was already passed between Kati and ESC. This is demonstrated in Roscorla v Thomas, where any promises made upon past consideration cannot be legally enforceable.

When Kati was handed the ticket, she did not look at it and was informed merely to ‘hold on to it and give it back’ when she collected her car. Also, the list of further terms and conditions was provided in tiny writing. As Kati was already frustrated and not in a normal state of mind, she can argue that she believed the ticket was simply a piece of paper to redeem her car and not a contractual document. Kati had no incentive to subject herself to these terms and conditions for nothing in exchange, highlighting that she was not aware of the term. As Kati did not have notice of the terms that were on the ticket, it is probable that ESC will not be able to prove that the ticket was in fact a contractual document and force Kati to pay, see Causer v Browne.

Ultimately, there are a large number of arguments that Kati can make to avoid paying the administration fee. Kati should argue that she did not receive sufficient and reasonable notice of the terms and conditions to nullify the term in the contract and avoid having to pay the fine.