Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. CHEP Australia Limited ('Chep') is in the business of hiring equipment, including pallets for the commercial transport of goods to commercial customers.

2. My Crazy Auntie's Food Pty Ltd ('MCAF') was, from its incorporation on 21 March 2014 until entering into liquidation on 2 March 2023, in the business of producing food for sale through commercial outlets.

3. MCAF submitted a 'Commercial Credit Application' to CHEP, signed by Mr Juy Hepner as a director of MCAF on behalf of MCAF on 1 August 2017. The 'Commercial Credit Application', together with the Terms of Hire, constituted an agreement by MCAF to hire equipment from CHEP ('the CHEP Agreement'). Mr Hepner provided a personal Guarantee and Indemnity signed on 1 August 2017 with respect to MCAF's financial obligations to CHEP.

4. In these proceedings, CHEP alleges that MCAF has failed to return or meet its financial obligations under the CHEP agreement with respect to equipment hired from CHEP under that agreement.

5. CHEP seeks to recover from Mr Hepner, under the Guarantee and Indemnity, the payment it says is due to it under the CHEP Agreement from MCAF.

6. At the trial of the matter, Mr Enayat Rahmani, a bad debt specialist employed in the Bad Debt Recovery team for CHEP provided two affidavits and gave oral evidence. Mr Hepner provided an affidavit and gave evidence in his own case.

The Facts

7. Mr Rahmani has worked in CHEP's Debt Recovery team since 4 July 2022. Prior to that, he had approximately 20 years experience in debt recovery at various organisations. Mr Rahmani uses CHEP's systems, book and records on a daily basis and is very familiar with them.

8. Mr Rahmani said that CHEP received an executed CHEP Agreement from MCAF on 1 August 2017. The CHEP Agreement and the CHEP 2016 Terms of Hire ('the Terms of Hire'), which were standard for all CHEP customers during their currency, both form part of Exhibit ER 1 to Mr Rahmani's affidavit of 1 July 2024. The Terms of Hire were attached to the CHEP Agreement when the CHEP Agreement was signed by MCAF.

9. The Terms of Hire are available to customers of CHEP online through the CHEP Portal. The Terms of Hire are also available to the public online, and have been since 1 August 2016.

10. The CHEP agreement executed by MCAF on 1 August 2017 provides, among other things:

ALL TRANSACTIONS WILL BE SUBJECT TO THE CHEP TERMS OF HIRE AND/OR TERMS OF SALE ATTACHED (WHICH CONTAIN RELEASES, INDEMNITIES AND GUARANTEES IN FAVOUR OF CHEP) WHICH THE APPLICANT HAS READ AND AGREES WITH.

11. The Terms of Hire were effectively incorporated as terms of the CHEP Agreement (see Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 211).

12. The Guarantee provided by Mr Hepner on 1 August 2017 is also part of Exhibit ER 1 (pp 5 - 10). Mr Hepner signed a previous Guarantee and Indemnity on 13 February 2017 (Exhibit P5).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197bf9ced9de4a41d31515b8)

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