ANSWER

Issue: Are there any terms of the parking contract that have been breached by Queens Parking
Ltd.?

Law:
Implied terms of the contract:
The common law of contract:
o A custom or trade usage concerning the subject matter of the contract (Hutton v
Warren);
Australian Consumer Law (Consumer Guarantees for supply of services):
o Section 60 ACL;
o Section 61 ACL;
o Section 267 ACL; (ACL s 267(4)).

Application of law:
It could be argued that there were terms of the parking contract, specifically implied terms,
which had been breached by Queens Parking Ltd, because:
There is a custom or trade usage concerning the subject matter of the contract. Mary
used the paid car park. It is reasonable to assume that everyone making the parking
contract could have an understanding that their car would remain safe and that this
would have imported into the contract (Hutton v Warren).
Queens Parking Ltd, as supplier, promised, that will provide the services with reasonable
skill and care and that any materials, in this case the employee, used will be reasonably
fit for the purpose (section 60 - ACL); and
Mary, by implication, tells the supplier the reason for the services or the result sought,
which consisted of car protection, and Queens Parking Ltd promised that the services
and any materials used should reasonably achieve the result sought. While Queens
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Parking Ltd had a staff member who has previously been convicted of car theft crimes
and furthermore, the company was aware of this before hiring him. So it was reasonably
foreseeable by Queens Parking Ltd that the presence of such an employee could
endanger the safety Marys car left the car park, therefore the company had not provided
reasonable care in achieving the result sought (Section 61 ACL).

Conclusion: There are implied terms of the parking contract that have been breached by
Queens Parking Ltd. Under the common law of contract, a breach of terms of contract entitles
Mary to claim damages. Under Australian Consumer Law Mary has a right to take action
against the Queens Parking Ltd (ACL s 267), as that company failed to comply with a consumer
guarantee: the consumer may, by action against the supplier, recover damages for any loss or
damage suffered by the consumer because of the failure to comply with the guarantee if it was
reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a
failure (ACL s 267(4)).

Issue: Can Queens Parking Ltd. rely on the exclusion clause as a defence to a breach of
contract claim?

Law:
The common law of contract:

Thornton v Shoe Lane Parking; or Chapelton v Barry Urban District Council;

Olley v Marlborough Court Ltd;
Balmain New Ferry Co Ltd. v Robertson;
White v John Warwick & Co. Ltd (the contra proferentum rule);
Sydney City Council v West (the 'four corners' rule).
Australian Consumer Law:
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 Consumer Guarantees for supply of services:

o Section 64 ACL;
o Section 29(1)(m) ACL;
o Section 18 ACL;
o Section 29(1)(b) ACL.

Application of law:
It could be argued that Queens Parking Ltd cannot rely on the exclusion clause as a defence to a
breach of contract claim, because:
The exclusion clause was not a term of the contract, as it given after the making of the
contract and so would be of no effect. The contract probably arose when Mary pressed
the button which said purchase. Before she accepted the offer, she was only notified
that the parking would cost $10 per day and that the terms and conditions of purchase
would be on the ticket. The ticket, which Mary received, was a receipt for the contract
already made. On the front of the ticket had been printed the date and time that Mary
entered the car park which was sufficient to conclude the contract. Thus Queens Parking
Ltd cannot rely on the exclusion clause, as it was made later than the making of the
contract (Thornton v Shoe Lane Parking; Olley v Marlborough Court Ltd.).
The party who seeks to rely upon the clause should take reasonable steps to bring it to
the notice of the other party. Even if we take into account, that Mary was notified that
the terms and conditions of purchase would be on the ticket, it could be argued that
Queens Parking Ltd had not done all that was reasonable to bring the terms and
conditions to the attention of Mary. These terms, included the exclusion clause, were on
the back of the ticket and were written using the small font size 8, therefore it was
sufficiently hard to find and read them. One from terms was: If the customer does not
accept these terms, they may leave within 1 minute of entry without incurring a fee. It
is reasonably foreseeable, that this would not allow enough time to find, read, and decide

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whether to accept these terms or not, and leave the car park in the case that the customer
does not accept them. Thus Queens Parking Ltd had not done all that was reasonable, in
order to bring to the attention of the client, the notice of the exclusion clause, therefore
binding the customer to its consequences (Thornton v Shoe Lane Parking; Chapelton v
Barry Urban District Council).
There were not previous dealings between Queens Parking Ltd and Mary, as this was the
first time that she had used a Queens car park. Thus Mary could not have known about
this exclusion clause and as such she was not bound by it as Queens Parking Ltd did not
give reasonable notice before the contract was made (Balmain New Ferry Co Ltd. v
Robertson).
There are statements in the exclusion clause Queens Parking Ltd, its agents, servants,
employees, and contractors shall not be liable for any loss or damage howsoever arising
from the use of this carpark does not indicate that Queens Parking Ltd, its agents,
servants, employees, and contractors shall not be liable for any loss or damage to any
vehicle parked in this carpark. So that the meaning of the exclusion clause is not clear
and ambiguous, thats why it could be interpreted contrary to the interest of Queens
Parking Ltd (White v John Warwick & Co. Ltd).
The exclusion clause attempts to avoid liability for an act that goes beyond the terms and
scope (four corners) of the contract. The act of arranging for Marys car to be towed
away by criminal associates was outside the terms (i.e. four corners) of the contract and
could be treated as an unauthorised act, which was neither contemplated nor intended to
be covered by the exclusion clause. The actions were not only negligent, but were also
not authorised by the contract (which was not covered by the exclusion clause) (Sydney
City Council v West).
Section 64 of the Australian Consumer Law states that the consumer guarantees cannot
be excluded by contract. Thus the exclusion clause in a contract between Queens
Parking Ltd and Mary which cannot take way or exclude rights such as the implied right
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to have services delivered with due care and skill. Hence the exclusion clause Queens
Parking Ltd, its agents, servants, employees, and contractors shall not be liable for any
loss or damage howsoever arising from the use of this carpark is not valid under ACL.
o Further, any attempt to exclude and stop Marys right of suing for breach of the
consumer guarantees is a false or misleading statement concerning the
exclusion, regarding a condition or right of Marys contract (Section 29(1)(m)
ACL).
o Queens Parking Ltds conduct in business of using the employee, who has
previously been convicted of car theft crimes, and excluding Marys right to sue
company for the loss and damage would lead to misleading and deceptive
conduct (Section 18 ACL); and
o Also, it is falsely represent that services are of a particular standard and quality;
because even if Queens Parking Ltd did not state, that does not have employees
who has previously been convicted of car theft crimes and who are part of a
stolen car criminal gang, reasonable to assume that this statement was imply in
representation of its services (Section 29(1)(b) ACL).

Conclusion: Queens Parking Ltd cannot rely on the exclusion clause as a defence to a breach of
contract claim, so company is liable to pay damages to Mary for the theft her vehicle under
Section 236 of the Australian Consumer Law (Actions for damages).

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