The appellant purchased a motor vehicle from the respondent in October 2017. He said he purchased the motor vehicle at least partly because it had been advertised as a 2014 model built in 2014. He subsequently found out that it was a 2013 model built in 2013. He unsuccessfully sought to return the vehicle to the respondent and obtain a refund.
The appellant commenced proceedings against the respondent in the Tribunal but was unsuccessful. The appellant appeals from that decision.
Regrettably, the Tribunal's written reasons are deficient, and there is no sound recording of the evidence given below.
Nevertheless, we are of the opinion the appeal should be dismissed because the appellant did not provide the Tribunal with any evidence from which a rational assessment of his loss could have been made even if the appellant was otherwise successful in his case.
[2]
Background
Each model of motor vehicle goes through various cycles in which various features and specifications change from one cycle to the next. Sometimes these changes are minor, sometimes they are major. Frequently, although not always, these cycles are expressed in terms of a calendar year. "Model Year", or "MY", refers to the model cycle that a car is in and is used to identify the particular features and specifications of vehicles built in that cycle.
"Build date", frequently expressed in terms of a month and year, refers to the month and year that a particular vehicle is built and is rolled off the production line.
Often, production of a particular model of vehicle commences in the year before the designated model year. Thus, one can have identical vehicles built in 2013 and 2014 for example, but they be of the same model year.
Differences in model years and build dates can affect the market price of second-hand vehicles, just as distance travelled, general condition, service history, the presence or absence of various options and accessories, colour, accident history, tyre wear and amount of remaining registration may affect value.
The appellant and his wife had been looking for a replacement 4x4 motor vehicle. They saw an online advertisement for a Land Rover Discovery offered for sale by the respondent.
The advertisement said the vehicle was a:
"2014 Land Rover Discovery Series 4 TDV6 Wagon 5dr Spts Auto 8sp 4x4 3.0DTT [MY14]"
The vehicle's advertised price was $43,990. It had travelled 121,762 km.
The appellant says on the appeal that this advertisement represented that the vehicle was a 2014 model with a 2014 build date. As events transpired, the vehicle was a 2013 model built in 2013.
According to the appellant's written complaint to NSW Fair Trading, which appears to have been tendered to the Tribunal below, upon seeing the advertisement the appellant made several inquiries of friends in the motor trade. They looked at the advertisement and advised the appellant that the vehicle was a good buy at around $41,000.
The appellant and his wife attended the respondent's premises, test drove the vehicle and decided to buy it. They negotiated a reduction in price down to $40,800.
The appellant then said, in his complaint, that when he received the "paperwork" to sign he "noticed it was for a 2013 vehicle". He went on to say that he said to the salesman that he was sure the advertisement was for a "2014 vehicle". This evidence was ambiguous because, on its face, it is unclear whether it was intending to convey that the years mentioned referred to model years, build dates or both.
Having had that conversation, but prior to signing the paperwork, the appellant attempted to find the advertisement online by using his mobile phone. He was unsuccessful. He says the salesman said that all the paperwork was for "a 2013 and so was the ad". The appellant thought he must have been confused and signed the paperwork. Again, it is not clear whether the salesmen was referring to a 2013 model, 2013 build date, or both.
The paperwork to which the appellant was referring included a five-page document headed "Contract / Tax Invoice for the Sale of a Pre-owned Motor Vehicle" (the "Contract").
In that Contract were entered various details of the vendor and purchaser, the price and the terms and conditions applying to the sale. Under the heading "Details of Vehicle Being Purchased" was the following entry:
"2013 Land Rover Discovery 4 3.0 TDV6 Auto 4D Wagon DTV6 Diesel"
Elsewhere in the Contract it was noted that the build date of the vehicle was August 2013. The build date of the vehicle was actually July 2013.
The appellant signed the Contract, paid the agreed price, and drove the vehicle home.
The appellant, in his written complaint, said that when he got home, he opened his laptop and the online advertisement was still on the screen. He said that all of his pre-sale's advice was based on that advertisement and there was a $5,000 difference between the "2013 and 2014 model". (Our emphasis)
The appellant rang the respondent and asked to return the vehicle and be given a refund. His request was refused.
Thus, his case was what lawyers call a "no transaction case". That means, the appellant was asserting that had he known the truth (that the vehicle was a model year 2013 built in 2013) he would not have purchased the vehicle. The significance of that is that the measure of damages applicable in the appellant's no transaction case is the difference between what he paid for the vehicle and what the vehicle was truly worth (that is, the market value when the market was aware it was a model year 2013 built in 2013).
The appellant commenced proceedings against the respondent in the Tribunal. The appellant referred to the Australian Consumer Law ("ACL") in his submissions, and it appears his case against the respondent was based upon allegations of misleading or deceptive conduct pursuant to s 18 of the ACL.
Unfortunately, and very regrettably, there is no sound recording of the hearing before the Tribunal below.
Two important consequences flow from the absence of a sound recording.
The first is that it appears oral reasons might have been given by the Tribunal below in reaching its decision. However, those oral reasons are now not available to the parties or to us.
The only record of the Tribunal's decision below is the Notice of Order dated 25 January 2019 which says:
"On 25-Jan-2019 the following orders were made:
1. The application is dismissed because:
Having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established."
This Order is ambiguous. It is not known whether by "grounds" the Tribunal was referring to an essential disputed fact being resolved against the appellant, or whether there was an absence of evidence of a fact constituting an essential element of the appellant's cause of action, or an absence of evidence of loss or perhaps something else.
The second consequence of the absence of a sound recording is that neither we nor the parties have available a record of the oral evidence given by the witnesses below. This is significant in a number of respects especially in relation to the appellant's evidence. This is because of the ambiguity in the appellant's written evidence. That ambiguity may or may not have been resolved in the appellant's oral evidence, by himself in his evidence-in-chief or in cross-examination of him by the respondent. If resolved in the evidence, it may have been resolved adversely to the appellant, or in his favour, as we shall briefly now explain.
On this appeal the appellant says that his case before the Tribunal was that both model year and build date were misrepresented in the advertisement. Whilst the paperwork clearly stated the build date was 2013 (albeit August rather than July), but in terms of year the appellant accepts he saw in the paperwork that the build date was 2013 and nevertheless purchased the vehicle.
As he had that knowledge before purchasing the vehicle, his case against the respondent for misrepresenting the build date had to fail because the appellant was aware of the true position before he entered into the Contract.
The live question is whether the Contract or the salesman also informed the appellant, before the Contract was entered into, that the model year was 2013 (rather than the advertised 2014).
We have set out the description of the vehicle in the Contract at [18] above. The opening year in that description, "2013", may, on one view, be a reference to model year. The absence of a sound recording means that we do not know whether the appellant gave any evidence on that topic or was cross-examined on it.
One interpretation of the appellant's written evidence concerning his conversation with the salesman is that the salesman was referring to build year rather than model year, another that he was referring to model year not build year, and a third possibility is that he was referring to both. Again, we do not know what evidence, if any, the appellant gave on the topic.
The appellant's wife's written evidence included statements that the "salesman read out the car as being a 2013 model" and the "salesman said it was definitely advertised as a 2013 model" (emphasis ours) before the appellant entered into the Contract.
If this evidence was accepted, it would establish that the appellant became aware of the true position regarding model year (as well as build date) before he entered into the Contract. If that was what happened, then it is difficult to see how the appellant could have won his case because, accepting the advertisement was misleading, the appellant became aware of the true position as to both model year and build year before he bought the vehicle.
We digress briefly here to note two things.
The first is that the appellant led evidence that the vehicle was built in July 2013 rather than August 2013 as set out in the Contract. That difference is not relevant when the precise month the vehicle was built was not advertised nor appeared to be of any importance to the appellant before the sale.
The second is that on the appeal the appellant attempted to tender a statutory declaration declared by him on 30 March 2019 in which a similar but different version of the conversations with the salesman were given. Those differences would go some way to resolving the ambiguity to which we have referred, but we rejected the tender of the statement because the evidence the declaration contains was available to the appellant previously. Only evidence which "was not reasonably available" at the hearing below is allowed on appeal - see clause 12(1)(c) of Schedule 4 of the Civil and Administrative Tribunal Act No.2 2013 (NSW) (the "NCAT Act").
The combined effect of the lack of reasonable written reasons and the absence of a sound recording means that it is not possible for us to determine whether or not the Tribunal erred.
It is unfortunate that the appellant did not request that written reasons be provided pursuant to s 62 of the NCAT Act although the provisions of such reasons may not have overcome all difficulties arising from the lack of a sound recording of the oral evidence given.
Be that as it may, we have what we have, and the appeal must be determined on the material available. On that material, the Tribunal's reasons are inadequate. In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 McColl JA, with whom Ipp JA and Bryson AJA agreed, said at [57] - [59] that the giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons works a miscarriage of justice. Whilst the extent and content of reasons will vary from case, it is essential that the reasons explain how the legal and factual points in dispute between the parties was resolved. Not just the result, but how the Tribunal reasoned to that result.
Reasons must enable the parties to identify the basis of the decision and the extent to which their arguments had been understood and accepted. It is necessary for the Tribunal to enter into the issues canvassed and explain why one case is preferred over another.
On that basis the appellant should succeed on the appeal because the Tribunal's reasons are inadequate.
However, it is clear to us that the appellant should have failed before the Tribunal because the appellant did not provide the Tribunal with any evidence from which a rational assessment of his loss could have been made even if the appellant was otherwise successful in his case. That is, even had the appellant established that he had been misled or deceived, he failed to provide any evidence that that misleading or deceptive conduct caused him any loss.
We shall explain why.
[3]
Loss
As mentioned at [23] above, to prove he lost anything the appellant needed to prove that the market value of the vehicle (to a market knowing it was a 2013 model built in 2013) was less than what he paid i.e less than $40,800.
On the question of loss, the appellant tendered below two pages from the online publication called RedBook. This, as the appellant and respondent confirmed, was the totality of the evidence on damages provided by the appellant to the Tribunal. In light of that fact, and despite the absence of a sound recording, we are in as good a position as the Tribunal to determine this question.
The RedBook is a well-known publication which commenced in the 1940's and which provides vehicle specifications, valuation and pricing guides through various products and services to the public, the automotive industry, finance and insurance companies and the Government.
One of the two pages tendered by the appellant relates to a 2013 Land Rover Discovery 4 TDV6 Auto 4x4 MY 13. The other relates to a 2014 Land Rover Discovery 4 TDV6 Auto 4x4 MY 14.
That is, a 2013 model built in 2013, and a 2014 model of the same vehicle built in 2014.
Both pages contained "Valuation Prices" as follows (we have set them out in adjoining columns for convenience):
2013 2014
*Private Price Guide $39,400 - $43,200 $44,800 - $48,800
*Trade In Price Guide $32,100 - $35,900 $37,100 - $41,100
*Average Km 60,000 - 100,000 45,000 - 75,000
Not included on those pages, but on the online version to which we have had regard [exercising our power under s 38(2) of the NCAT Act] is the following explanation of those terms:
* Private Price Guide: Represents what you may expect to buy or sell this vehicle privately. It may vary to a dealer's retail price because the dealer prepares the vehicle more thoroughly, both mechanically and aesthetically, and provides a consumer warranty.
* Trade In Price Guide: Represents what you may expect as a trade in value from a dealer.
* Average Km: The typical kilometres this vehicle has travelled and is the basis of the prices shown.
The appellant submitted that these RedBook pages were evidence which proved that the vehicle he purchased was really worth about $5,400 less than what he paid, and thus his loss was of that amount. $5,400 is the difference between the lower amounts given next to "Private Price Guides".
However, assuming all other things in favour of the appellant, the law does not allow the appellant to recover the difference between the general market values of 2014 and 2013 models.
If he is entitled to damages, he is only entitled to the difference between what he paid, and the market value of his particular vehicle (the market knowing the true position as to model year and build year).
The way the law works, if he paid $50,000 and vehicle was truly worth $40,000, he would receive $10,000 as compensation. But if he happened to have struck a good deal and purchased the vehicle for less than its true market value, he would have suffered no loss. Thus, if he paid $50,000 and the true market value of the vehicle was $60,000, the appellant would have suffered no loss and he would have failed in his case against the respondent even if he had been misled or deceived. Someone only recovers compensation if the misleading or deceptive conduct causes some actual loss, in a case like the present being (if it is proved) paying more than the true market value.
The difficulty for the appellant is that he did not provide the Tribunal with any evidence of the market value of this particular vehicle.
The RedBook guide relating to the 2014 model was irrelevant because it was the market value of this particular vehicle (a 2013 model) which was important.
The RedBook guide relating to the 2013 model did not indicate what the market value was of his particular vehicle. It only provides a range of values for typical vehicles of the same model.
The Private Price Guide range, if an indicator of market value, was not helpful to the appellant's case because the price he paid was within the range given of $39,400 - $43,200 given in that guide.
True it is that the appellant's vehicle had travelled nearly 22,000 km more than the upper end of the range appearing in the RedBook, and one would generally expect that fact to decrease the value, but by how much is not known.
As RedBook notes in the statement we have quoted at [62] above, and which we would suggest is both common knowledge and common sensical, value will vary depending upon the particular car's condition together with any added factory and aftermarket options (amongst other factors). There was no evidence as to condition of this vehicle (of which we are aware), nor as to additions or options, although a photograph of the car does show a snorkel which is usually not a standard feature, and which would generally be expected to add value to the vehicle.
The appellant, who still owns the vehicle, could have obtain a valuation of it and tendered that in evidence. Indeed, RedBook (amongst other providers) offers a valuation service. On its website RedBook says:
"A RedBook Valuation Report is personalised to the car and takes into consideration important details such as the kilometres travelled, the car's condition as well as any added factory and aftermarket options.
No such valuation was tendered.
Assuming the appellant had proved he had been misled or deceived, and that that misleading or deceptive conduct caused him to do something, he bore the onus of proving, on the balance of probabilities, that he had suffered a loss and the extent of that loss.
To prove loss, and the extent of the loss, the appellant had to provide the Tribunal with some evidence which would provide some rational basis for the assessment of that loss.
Courts are not infrequently presented with difficulties in assessing loss and damage due to a paucity of evidence. Often one hears the exhortation that the court or tribunal must "do the best it can" with what has been presented to it. But there are limits.
In Troulis v Vamvoukakis [1998] NSWCA 237 Gleeson CJ, as his Honour then was, with whom Mason P and Stein JA agreed, said at p.28:
"The principles governing the approach which a court should take when there has been a failure of proof by a party carrying the onus of establishing the extent of damage suffered as a result of breach of contract or tort were discussed in JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237.
Examples of cases, similar to the present, where courts have declined to substitute guesswork for evidence, and have refused to award damages where no basis for a rational assessment has been laid in the evidence, include Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23 and Newark Engineering (NZ) Ltd v Jenkin [1980] 1 NZLR 504.
As Deane J observed in The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 118-119, the limitations of the curial process, or the nature of the subject matter in question, often mean that the task of assessing damages involves a pragmatic exercise of a kind traditionally left to the good sense of a jury. Where, however, what is involved is the valuation of the goodwill of a business, and the plaintiff fails to adduce either reliable evidence of the trading results of the business, or evidence as to how one goes about valuing such a business, then there is an absence of the raw material to which good sense may be applied. Justice does not dictate that, in such a case, a figure should be plucked out of the air."
Troulis was a misleading or deceptive conduct case. In it the damages to which the purchasers were entitled was the difference between what they had paid for the goodwill of the business and its true value at the date of purchase (Gleeson CJ at p.8). There was no evidence of that value.
Gleeson CJ held (at p.13) that in such circumstances there were:
"limits to the lengths to which a court may properly go in "doing the best it can' to assess damages".
Although the purchasers had not shown that the goodwill of the business they purchased was valueless his Honour said (at p.13) that it was necessary for them "to provide some evidence upon which a rational assessment of value could be made." They had not done so and so no damages were awarded.
So here. In our opinion that appellant had not provided any evidence to the Tribunal upon which a rational assessment of value could be made, so that even if all other matters were resolved in his favour, he would not have received any compensation. In our opinion, any assessment of some amount of damage would be to substitute guesswork for evidence.
We are obliged to act according to the substantial merits of the case without regard to technicalities or legal forms [s 38(4) of the NCAT Act]. There is no point upholding the appeal (for inadequate reasons) if it is clear that the appellant's case would fail due to a lack of evidence of loss.
In those circumstances, we dismiss the appeal.
We note that the appellant alleged the respondent had falsely represented certain things to him, made some allegations about the changing of advertisements, rights under cooling off periods etc. However, it seems clear to us that the only substantive case which may have resulted in damages was the appellant's case for misleading or deceptive conduct relating to the sale and the price he paid. On that case he would have failed for the reasons we have given.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 06 June 2019