A recent decision of the Consumer, Trader and Tenancy Tribunal of New South Wales includes a finding that certain container detention fees charged by the Australian agent of an international shipping company were a penalty rather than a genuine pre-estimate of damages and ordered the refund of those fees by the Australian agent. The details of the case are included in the attached advice from Andrew Hudson of Hunt and Hunt Lawyers (see link below).

The outcome, whilst extremely interesting, leaves a number of unanswerable questions as yet. Most importantly, we firstly need to observe whether the respondent will seek leave to appeal and also whether the Australian jurisdiction will stand in the current case.

Furthermore, we note the comment in the attached notice regarding the interest that the ACCC might have in terms of "unconscionable conduct", as relevant provisions of the Trade Practices Act 1974 prohibit such conduct. Also whether the apparent 'like charging' in the industry is of interest to the ACCC. It remains to be seen whether such comments are upheld under appeal.

We would like to surmise that in any event, those entities who are looking to charge for other than fair and reasonable detention charges, may well wish to review their charging policies in light of this case .

AFIF has sought legal opinion and at this point this is the current status. In the meantime we will be watching developments closely.

Please click here to read the notice from Hunt and Hunt Lawyers