Boogs v Missen (Civil Claims) [2017] VCAT 835

1. Ms Tracey Boogs sold Ms Nicole Missen a 10 year old horse on 22 February 2015 for $7,500.00. Under the contract of sale, Ms Missen paid $5,000.00 and agreed to pay the balance of $2,500.00 in instalments of $100.00 per week.
2. The parties were soon in dispute. Ms Missen, who has three young children and who told Ms Boogs that she wanted to return to "eventing" after having several years' break from riding, says that within weeks of the sale the horse was seen to be lame. "Eventing" requires a horse to be ridden in three styles - dressage, show jumping and cross country riding.
3. On 26 May 2015, about 3 months after buying the horse, Ms Missen had it examined by veterinarian Simon Pearce PhD, who on 1 June 2015 wrote[1] that -

Conformation of the hocks was poor and the horse persistently dragged both hind feet. The horse was evaluated for proprioceptive or other neurological deficits which were absent. There was no response to hoof tester evaluation on all four feet. The horse was obviously abnormal behind [bilaterally lame] in both hind legs at the trot on the lunge and also resented trotting on the left rein which was considered likely to be a result of lameness in the left fore. The horse had a markedly positive response to flexion of the distal limb in all four limbs and range of motion deficits which was most obvious in the forelegs. Radiographs were performed on both hocks which demonstrated obvious arthritic changes in the tarsometatarsal and distal intertarsal joints of both hind legs. Radiographs of the front pasterns also showed signs consistent with arthritis [ring bone]. At the time of my examination this horse was not sound and would not be suitable as a competition (eventing) horse.

1. This conclusion, which has not been challenged by Ms Boogs in a competing expert's report, would suggest that the horse was not sound in February 2015, because the defects observed are not ones that develop in a short time: see the references to the horse being "abnormal behind", and having arthritis in joints in both hind legs. It is inconceivable, absent an injury, that a horse which was suitable for eventing in February could be unsuitable in May.[2]
2. Ms Missen sought to return the horse to Ms Boogs and obtain a refund. Ms Boogs issued proceeding C2542/2015, claiming the $2,500.00 balance of the purchase price. Ms Missen counterclaimed for $8,000.00, plus all cost involved in this horse, and for an order recognising her right to return the horse, in proceeding C3164/2015.
3. The parties represented themselves at the hearing on 8 December 2015 and the Tribunal found for Ms Missen in both proceedings. In proceeding C3164/2015 it ordered Ms Boogs to pay Ms Missen $5,957.90 and declared that no debt was owed by Ms Missen to Ms Boogs. It dismissed Ms Boogs's proceeding C2542/2015.
4. Ms Missen sought leave to appeal and on 15 February 2017 the Supreme Court granted leave to appeal, allowed the appeal, and remitted the matter to the Tribunal for rehearing.[3]
5. I heard the case afresh on 24 April 2017. Ms Missen was self represented. Ms Boogs, who had retained Counsel for the appeal, was also self represented. Both parties produced documents that they considered relevant. Both parties said that they had read the Supreme Court's judgment in the appeal and understood it.
6. Whilst the parties gave evidence orally, much of the contents of the documents that they tendered in the hearing was hearsay and neither party brought to the hearing the authors of those documents.
7. When Ms Missen learned that the horse was unsound, she did some research to find previous owners of the horse and to seek to ascertain its condition at various times. Ms Missen tendered in the hearing what she said were copies of SMS messages between two former owners, Dr Julia Kline and Ms Aerial Bunting. In the absence of Dr Kline and Ms Bunting I exclude those documents. It would be unfair to accept their contents as being true. Whilst Ms Missen said that the SMSs sent or received by her were genuine, she could not give evidence in relation to those which appear to have passed between Dr Kline and Ms Bunting.
8. What I can receive as evidence is a letter signed by Dr Kline on 21 October 2016, headed "To whom it may concern" and intended to be produced to the Tribunal. It includes:

"I would formally like to acknowledge that I sold Ms Tracey Boogs a horse known as "Rex" for the sum of $2,000.00. He was sold as a school master horse that according to our discussions would live and retire with her eventually with the possibility of coming back to be ridden by my children.

I have owned this horse since he was 2 years old. (Tracey Boogs) was aware that he had a history of being sold to 2 people previously and that I had bought him back from these people when he was no longer suitable and unsound as loved the horse. I also offered several times to buy him back from her when I found out she had sold him to Nicole Missen so that she could return Nicole's money. But she declined.

Rex was not on my property for several months to a year before he was sold so I had no idea of her dealings.

I categorically state I did not in any form whatsoever see the horse in a veterinarian capacity. Neither for a pre-purchase or an insurance exam or even for a visit. In fact I was kept ill informed about his health entirely and told he was fat and in great condition which was not the case.

1. The reference to the "insurance exam" relates to a representation that Ms Boogs made to Ms Missen prior to the sale. The letter concludes with some very serious allegations against Ms Boogs, which I will not set out here because there is no evidence before the Tribunal as to the veracity of the facts asserted in this part of the letter.
2. When seen with the letter from Simon Pearce PhD, Dr Kline's letter proves to my satisfaction that the horse was unsound even before Dr Kline sold it to Ms Boogs. As I say below, Ms Boogs gave evidence that Dr Kline had carried out an insurance exam, but I do not accept her evidence in that respect.
3. I accept as a fact that a horse which is unsound is not suitable to be ridden in the three styles of dressage, show jumping and cross country riding and that a horse which is in arthritic pain is not suitable for a household with young children.
4. Turning to the evidence given orally by Ms Missen and Ms Boogs, the point of difference between them is this:
   • (a) Ms Missen says that Ms Boogs made representations to her that the horse was not only sound, but that it was suitable for a person who was returning to riding after a break, was safe around young children, that the only injury the horse had sustained that she knew of was a flat scar on its front leg, and that the horse had passed a vet check for insurance in about February 2014.[4]
   • (b) Ms Boogs says that she made no representations. She said to Ms Missen that she could ask any questions about the horse. She did not volunteer any information. If Ms Missen did not ask a pertinent question, she bore the consequences.

Ms Missen succeeds on the basis of negligence

1. I will set out the relevant evidence below, but at this stage I summarise my findings as follows:
   • (a) Ms Boogs did not sell the horse in trade or commerce, and accordingly the guarantee of acceptable quality under section 54 of the Australian Consumer Law is inapplicable. Ms Missen's claims for relief based on misleading and deceptive conduct, false representation and unconscionable conduct are unsustainable as the relevant statutory provisions only apply in transactions in trade or commerce.
   • (b) Ms Missen's claim in proceeding C3164/2015 is a "consumer and trader dispute,"[5] as it arises from the supply of "goods" - the horse - and the Tribunal has jurisdiction in such a dispute where a party brings a claim in negligence[6]. Ms Missen brought such a claim: she said that Ms Boogs knew that the horse was unsound, that it was dangerous, and that it was unsuitable for an owner who wanted to return to riding after a break, and an owner with young children who might be injured by a dangerous horse, and yet she failed to disclose that information to Ms Missen. Ms Boogs had a duty of care to disclose that information, and she knowingly breached that duty by suppressing the information. Ms Missen suffered loss and damage as a result, being the $5,000.00 part payment and other wasted moneys. A false statement made in breach of the duty of care, and which causes loss to a party who relies on it, entitles that party to recover damages in negligence for that loss: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465. In this case Ms Missen's act of reliance was her act of entering into the contract.
   • (c) Another concept which falls within 'negligence' in a consumer and trader dispute is that of misrepresentation or pre-contractual misstatement, which induces the other party to enter the contract. A misrepresentation may be made fraudulently, negligently or innocently. A misrepresentation is fraudulent if the person who made the representation knew it to be false, or was recklessly indifferent as to whether it was true or false. The relevant test is a subjective test of the state of mind of the person making the representation. The other party may avoid or affirm the contract, and may claim damages in either case. Damages are assessed to put the representee in the position she would have been in had she not acted on the misrepresentation. Ms Missen was entitled to rescind the contract of sale, and she did so. Ms Boogs acted as if Ms Missen could not rescind, and as Ms Missen did not engage a legal practitioner she was induced to keep the horse pending the outcome of the litigation. As Ms Boogs brought about that state of affairs, she is estopped from denying liability for the additional damages that Ms Missen has sustained pending the determination of this proceeding. In consequence Ms Missen is entitled to a refund of the $5,000.00 part payment that she made, and damages. She is also relieved of any further liability to pay the instalments under the contract of sale.
   • (d) Section 184(2) of the Act sets out the powers of the Tribunal in consumer and trader disputes. That the Tribunal has the power to make certain orders does not compel it to do so, and nor does the existence of a power constitute a cause of action in itself. Nevertheless sub section 184(2)(b)(iii) empowers the Tribunal to order the payment of money by way of restitution; sub-sections 184(2)(d) and (e) empower the Tribunal to declare that a term of a contract is void and to order the refund of any money paid under a void contract; and sub section 184(2)(g) empowers the Tribunal to order rescission of a contract. These statutory powers are close to those available to Courts at common law. In the leading text "Contract: General Principles"[7] the author says the following

A party induced to enter a contract by an untrue statement, that is, a misrepresentation, may have access to one or more of a range of remedies. If the statement is promissory in character, the contractual remedies of damages, and possibly election to terminate for breach, may be open. There may have been negligence or deceit leading to damages in tort ...

The key to restitutionary relief is rescission which, if available, is contractual so far as it relieves from future contractual obligations, and restitutionary so far as it reverses benefits received by both sides, continued retention of which is justifiable only on a contractual basis.

In other words, rescission would relieve Ms Missen of her obligation to pay the $2,500.00 in instalments to Ms Boogs, and it would oblige Ms Missen to make the horse available for collection by Ms Boogs and require Ms Boogs to return the $5,000.00 to Ms Missen and to pay her damages.

(e) As had been flagged by J Forrest J in the appeal, s19 of the Goods Act 1958 sets out the circumstances in which there may be an implied condition[8] in the contract for the sale of goods that the goods shall be reasonably fit for the particular purpose expressly or by implication made known by the buyer, and I find that there was no such condition in the contract of sale in this case. The necessary circumstances to bring the sale within s19 did not arise, because Ms Missen was not in the business of selling horses.

(f) Ms Missen had also claimed, in her Application form, that there had been a total failure of consideration. She did not argue the point in the hearing, and with respect she seems to have used the expression as a label, rather than seeking to properly rely on a cause of action. Even though the horse was unsound, I do not consider there to have been a "total" failure of consideration and whilst I do not propose to discuss this concept any further, I note in passing that in the famous case of Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344, where the passenger Dillon had paid in advance for a 14 day cruise, and the ship sank after 8 days, the High Court held that Dillon could not recover the entire fare. Expressed in terms of 'restitution', even if Baltic Shipping's obligation was to provide a 14 day cruise under an 'entire contract', the 8 days of performance precluded Dillon from recovering the entire fare. In the case before me, Ms Missen received some consideration for her payment of $5,000.00.

1. Ms Boogs and Ms Missen gave evidence and produced documents. Ms Missen's partner Mr Townsend also gave evidence of his attendance at Ms Missen's inspection of the horse in February 2015, which tended to corroborate Ms Missen's evidence but which, frankly, was in such vague terms is to be of no assistance. I mean no criticism of Mr Townsend, but his evidence establishes that he had tagged along to the inspection and he had not been there to pay close attention to the discussion, and that he only had the vaguest impression of what Ms Boogs and Ms Missen had said to each other.
2. There were no other witnesses.
3. In her Application form in C2542/2015 Ms Boogs wrote that she sought $2,500.00 as the "payment of money including damages" and as an "order (that Ms Missen) comply with a contract" [9], and that she was relying on the Australian Consumer Law and Fair Trading Act 2012.[10] In her description of the dispute she wrote:

I sold a horse ["Rex"] to Ms Missen. The horse was sold for the agreed price of $7,500.00 on a payment plan. The payment plan stated a first payment of $5,000.00 to be made on the day the horse was picked up by Ms Missen [22 February 2015] with the remaining balance of $2,500.00 to be paid in weekly instalments. Ms Missen has paid the initial payment of $5,000.00 and is now refusing to pay the outstanding balance of $2,500.00.

During many conversations to attempt to resolve this issue, Ms Missen has stated that she believes that the horse is not fit for the purpose she purchased him for and therefore is refusing to pay the outstanding balance. I disagree with this and as we have been unable to reach a resolution, I am now making this claim for the sale agreement and payment plan to be enforced.

1. In her Application form in C3164/2015 Ms Missen wrote that she sought $8,000.00 as the "payment of money including damages", an "order that a debt is owed or not owed", "review vary or cancel a contract", an "order to comply with a contract", "damages or other orders for failure to comply with a consumer guarantee for goods ...", "damages or other orders for misleading and deceptive conduct, false representation or unconscionable conduct"[11] and that she was relying on the Australian Consumer Law and Fair Trading Act 2012.[12]
2. In her description of the dispute Ms Missen wrote:

I purchased a 17.2hh 10 yo chestnut TB horse ["Rex"] from Ms Tracey Boogs on 22 February 2015 and has issues shortly after with Rex breaking down and ill. He was described as a "true gentleman" by Ms Boogs. He isn't a safe horse to be around and isn't able to be ridden let alone competing which is the purpose I purchased him. Misleading information has been provided by Ms Boogs about the health and previous inquiries[13] of this horse. Please see a copy of the vet report.

I'm seeking a full refund of $5,000.00 I have paid for Rex plus all cost involved in the horse. Vet, lawyers, maintenance, dentist, feed etc

The reason behind this is that there has been a total failure of consideration under the contract and Rex is not fit for riding let alone eventing which is clearly what I was advertised for via Facebook.

I was told Rex was would suit my needs and that he was an absolute gentleman. This is not the case and he is very unsafe to be around as he kicks out. Tracey (Boogs) was also aware I had young kids and this was never mentioned.

Rex has severe health issue which prevent me from riding him at all. These possible issue were raised by Jemma Guernow (owner of Scenic Park Equine Services) whilst Jemma had Rex in her care. Rex was then sent back to Tracey (Boogs).

Please see all the attached supporting documentation.

Also the return of my sunglasses that were left at Tracey's on the 22nd Feb.

1. The "attached supporting documentation" included copies of
   • (a) a written agreement between the parties dated 22 February 2015;
   • (b) a letter of demand from legal practitioners for Ms Missen to Ms Boogs dated 15 May 2015 in which particular allegations were made;
   • (c) the letter from Simon Pearce, Veterinarian, on the letterhead of Golden Plains Equine dated 1 June 2015, setting out his observations of the horse made on 26 May 2015 which I referred to above; and
   • (d) a selection of Facebook and SMS correspondence between the parties and others.
2. Ms Missen gave evidence that it was now more than a matter of the horse being lame. She said that she has three young children, and that she disclosed that fact to Ms Boogs when looking at the horse prior to purchasing it. Ms Missen says the horse is dangerous, because it kicks and bites, and has bitten her. In relation to many aspects of the horse, Ms Boogs gave evidence that she invited Ms Missen to ask questions about the horse, but that she did not volunteer information. Ms Missen countered with the assertion that it was immoral to hide information about a dangerous horse from a woman with young children, and contrary to Ms Boogs' duty of care.
3. Ms Missen also tendered the letter signed by Dr Kline on 21 October 2016.
4. Well into giving her evidence, Ms Missen said that she believed, but could not prove, that the horse had received surgery for the effects of its ingestion of sand. She said she would have to obtain the medical records held by Barwon Equine, and that it might have recorded the horse in its client database under the name "History Maker" under a different owner's name, and that it would not understand an enquiry for information about Ms Boogs or "Rex". Ms Missen had not issued a Summons to Witness directed to the proprietors of Barwon Equine. Ms Missen did not seek to explain what the effects of ingesting sand would be. This point was not developed by Ms Missen and I put it aside.
5. Ms Boogs said she bought the horse on 8 January 2014, for use as a personal horse for herself. She thought she might engage in some low level competition, but she put the horse out to a rider in order to keep it fresh because of all the demands on her time. She was the full-time carer of her son who had special needs, and was a volunteer with the organisation "Riding for the Disabled." Until 2009 she had been a marketing consultant in the veterinary industry, but she had stopped that work due to her need to care for her son.
6. On 2 February 2015 she saw a "Wanted to buy" message from Ms Missen on Facebook. It said

WTB - I'm looking for my new best friend. I'm getting back into eventing after 10 years off due to having kids. I'm after a sensible, preferably gelding that has established flat work and quiet. 15h+ . Budget of $5K but willing to pay more for that special horse. Please inbox me. Will travel VIC only. Thank you

Hi Nicole, I just saw your advert looking for a horse. I have a 10 year old gelding with dressage, jumping and eventing experience. He is an absolute gentleman out at comps etc. I have $7000 on him. I know that's more than your ad but I thought I would message you on the off chance that you may be interested.

1. The parties then had many short communications by Facebook messages, as Ms Missen was in Warrnambool and Ms Boogs was in Geelong:

Ms Boogs "if you like I can send you some pics of him tomorrow ... Is there anything in particular you would like to know about him (?)",

Ms Boogs "He excels at dressage, he's very precise and smooth. I have a couple of pics on my phone and then I have some better ones on my laptop that I can send through tomorrow if you like"

Ms Boogs "Yes I took a video of him at a combined dressage & jumping comp recently. It was his first comp back after a rest and he scored 80% so I was incredibly happy with him. That's on my laptop so I can send that through tomorrow as well if you like"

Ms Boogs (with some photos) "These were just taken the other day on my phone whilst he was schooling at home so pretty crappy. Will send more tomorrow"

Ms Missen (after viewing a video) "Thank u. What a champ. U guys did an amazing job in those conditions. May I ask the reason for u selling??"

Ms Boogs " Thanks, I run a therapeutic riding program and it's just absolutely taken off, leaving me very little time for competing, or even working, my own horse. If Rex was older I would probably just retire him but he's too young for that. You are more than welcome to ask as many questions as you'd like, it's a smart thing to do when making a purchase like a horse. If it's easier my mobile (number) is ..."

Ms Boogs "Yes he is, 3-4 times a week, he will also keep competing until he sells"

Ms Boogs "Yes, on his front leg [foal play], it's a flat scar and I've had no trouble covering it with show make up, however when he's got dressage boots on its covered. I just posted a pic of his front leg"

Ms Boogs "No none that I know of, he passed a vet check for his insurance a year ago".

1. Short Facebook messages continued until Ms Missen met Ms Boogs on 14 February 2015 and Ms Missen inspected the horse. The following messages were exchanged after the inspection on 14 February 2015:

Ms Missen "Thank u so much for today. I can't stop talking about Rex. Beautiful boy"

Ms Boogs "Thank you you're welcome for today, I'm so glad you liked him. Emily is checking her roster for next Sunday so I will get back to you on that as soon as I hear from her"

Ms Missen "I loved him. He is exactly what I'm after"

1. Further messages took place, at which another inspection for 22 February 2015 was arranged. Ms Missen raised the subject of her taking the horse away after the inspection if all went well. Ms Boogs indicated that would be acceptable. I think it is fair to say at this point that Ms Missen inspected the horse having been induced by Ms Boogs' written representations and promises to believe that the horse:-
   • (a) excelled at dressage,
   • (b) was very precise and smooth,
   • (c) was able to score 80% in a dressage and jumping competition,
   • (d) was too young - and impliedly in too good condition - to retire,
   • (e) was basically being sold because Ms Boogs had insufficient time,
   • (f) had no injuries that Ms Boog's knew of, apart from a seal, and
   • (g) had passed a vet check in February 2014.
2. On 16 February 2015 Ms Missen wrote

"I'll talk to my partner (about a proposed inspection time) but it should be okay. I was hoping to have a chat and if u were happy with us and after I've ridden him if he is still what I'm after. Would it be okay for us to take him Sunday?? I just read back your first message and he was $7000. Is it more due to the few events?? I also wanted to talk about the payment plan that u mentioned as my original budget was only $5000"

1. On 22 February 2015 the parties met. Ms Boogs submitted to Ms Missen a proposed agreement/contract of sale, and both sides signed it. Relevantly, it described Ms Boogs as "the seller" and Ms Missen as "the buyer". It did not refer to Ms Boogs by reference to a business name, and it did not display Ms Boogs's ABN. On the other hand, the document had blanks in which Ms Missen's address, horse agistment address, and driver's licence number were written in by hand.
2. The agreement is written in a businesslike way, both in the concepts it deals with and in its language. Deleting only the formal parts, it says (with emphasis added)

The horse ... is offered for sale at the purchase price of $7,500.00. The buyer has agreed to this price and has asked the seller for a payment plan to purchase the horse. The seller has agreed to the following payment plan:

A deposit in the amount of $5,000.00 to be paid at the time the buyer takes possession of the horse [22 February 2015];

Commencing on Monday, 7 March 2015, a weekly payment of $100.00 to be paid by the buyer to the seller's bank account until the balance of $2,500.00 is paid;

The horse will be in the sole care of the buyer from today's date onwards, and will be paddocked at the address on the bottom of this letter. If the horse is moved from the below mentioned address prior to the full purchase price being paid, the buyer must inform the seller of the new address prior to moving the horse.

The horse is to be cared for in accordance with his current feeding, rugging, shoeing and well-being standards until the full purchase price has been paid. These standards will be outlined to the buyer by the seller.

From the time the horse goes into the care of the buyer, and for the duration of this payment plan until the full balance of $7,500.00 has been paid, the horse is to be kept in good health. Should the horse become ill or unwell a vet is to be called as a priority. In the event of the horse requiring veterinary treatment from today's date on, the buyer will be entirely responsible for these costs.

Should the buyer default on payments or renege on this agreement for any reason whatsoever including but not limited to financial hardship, change of mind, non - compatibility between horse and rider or any other reason, any and all monies paid to the seller by the buyer up to and including the date of default are forfeited by the buyer and remain with the seller. The horse, its rugs and gear are to be returned to the seller if the buyer defaults on this agreement.

In the event of the death of the horse, regardless of cause, full payment of $7,500.00 is still required to be paid by the buyer to the seller.

The horse is sold as is and with (some gear which was listed).

1. The language is interesting. Why would a private seller, who drafted the contract, say "The horse is sold as is" when those words imply that, in their absence, some implied warranty exists, and further after having stated - in the words which I have emphasised in the quotation - that the horse was in good health?[14] Would a private seller include provisions for the forfeiture of money if the horse died?
2. Ms Missen tendered, and Ms Boogs admitted the authenticity of, a document issued by the Australian Government which shows that commencing on 8 March 2016 Ms Boogs has Australian Business Number ABN 89 245 617 351, and that from that date she was noted for tax purposes as a "sole trader" using the business name "Horses for Therapy". Ms Missen submitted that this proved that Ms Boogs was in business when she sold the horse in February 2015. Ms Boogs countered that the commencement date showed the contrary, and that she had merely volunteered with Riding for the Disabled until she decided to set up business, well after the sale. On the basis of this scant evidence, I am not satisfied that Ms Boogs was in business in February 2015, and I am not satisfied that she sold the horse in trade or commerce.
3. Even though the sale of business contract that Ms Boogs drafted is expressed in a businesslike way, I am unable to conclude from that that Ms Boogs was in the business of selling horses.
4. It follows that the consumer guarantee of acceptable quality under section 54 of the Australian Consumer Law is inapplicable, as are the provisions concerning misleading and deceptive conduct, false representation or unconscionable conduct.
5. The parties then engaged in some further messaging which is of little importance, until on 7 April 2015 Ms Missen started asserting that the horse was lame.
6. In giving her oral evidence, Ms Boogs emphasised the contents of her Facebook messages in which she had disclosed her reason for selling the horse, the scar on the horse's front leg, and her statement that she did not know of other injuries.
7. Ms Boogs said that at the meeting on 14 February 2015 when Ms Missen inspected the horse, Ms Boogs told her that it was "feed protective" and that the horse would lift his hind leg when you did up his leg straps on his rug, and that the horse had always done that.
8. Ms Boogs said that Ms Missen asked for the meeting on 22 February 2015 so that Ms Missen could ride the horse. In these discussions, which occurred on the telephone, Ms Missen asked about setting up a payment plan and Ms Boogs said she would agree to receive $5,000.00 plus $100.00 per week, that the payment plan would have to be in writing, and that Ms Boogs would draw it up and present it for signature on 22 February 2015. Ms Boogs also said that she would throw in some gear.
9. Ms Boogs said that Ms Missen arrived on 22 February 2015 with a float. Emily - who was known to Ms Boogs - rode the horse, and then Ms Missen rode him. At the end of her ride, Ms Missen said she would like to buy the horse and wanted to take him. Ms Missen placed her child on the horse's back, which Ms Boogs saw as a sign that Ms Missen considered the horse to be safe. Ms Boogs said that that there was no hurry, that the horse was not on the open market and that Ms Missen could get him inspected by other people, but Ms Missen said she wanted to take him, and that she had arranged for a saddle fitting for the next day. In effect Ms Missen said "I'm keen and I want to take him now". The parties then went through the sale agreement, discussing its contents, and then both signed it. Ms Missen paid the $5,000.00 and took horse and the gear.
10. In giving her oral evidence, and also in cross examining Ms Boogs, Ms Missen said that on 2 February 2015 - the day of the initial Facebook messages - Ms Boogs told Ms Missen that she ran a therapeutic riding business (not a "program"), which was really taking off.
11. Ms Missen emphasised that in answer to her written question, made after Ms Missen was told of the scar on the front leg, whether the horse had any other injuries, Ms Boogs had answered "No none that I know of, he passed a vet check for his insurance a year ago". Ms Missen said that Ms Boogs had not obtained insurance on the horse, and that when Ms Missen had called on Ms Boogs to produce a copy of the vet check Ms Boogs had admitted that there was no written vet check.
12. The evidence that I have set out above demonstrates that Ms Boogs lied about the condition of the horse. In the Facebook "wanted to buy" message, Ms Missen said she was looking for "my new best friend", that she was "getting back into eventing after 10 years off due to having kids", and that she wanted a "sensible" "quiet" gelding. When Ms Missen came to look at the horse she brought one of her young children, and said again that her purpose was to use the horse in eventing.
13. Negligently, and on the frankly remarkable basis that Ms Boogs would answer specific questions but not volunteer information, in the knowledge of Ms Missen's needs Ms Boogs sold her a horse that is in so much pain that it kicks and bites, and which is lame. I have no doubt whatsoever that Ms Boogs had a duty of care not to mislead Ms Missen, and not to place into the care of a family with young children a dangerous and lame horse.
14. Ms Boogs' negligence has caused Ms Missen loss and damage, being the $5,000.00 that she paid for the totally unsuitable horse and the various expenses that Ms Missen has incurred in keeping the horse since then. Bearing in mind that Ms Boogs well knew the health problems affecting the horse, there is no question that Ms Boogs is liable for these damages.
15. I find that the representations made by Ms Boogs were misrepresentations, and that they were promissory. In substance the promises were that the horse was suitable for eventing, had the behaviours which could make it a "new best friend" (behaviours that did not include biting and kicking), was suitable for eventing, sensible and quiet, and perhaps most importantly to Ms Boogs' knowledge only had a scar on its front leg and had passed a vet check around a year before the sale.
16. These misrepresentations caused Ms Missen to suffer loss and damage, I find that the contract should be rescinded, that the appropriate return of the $5,000.00 and the horse respectively should take place, and that Ms Missen is relieved from any further liability to pay monies to Ms Boogs and further that Ms Missen is entitled to damages.
17. Ms Missen gave evidence that the additional expenses she had incurred in keeping the horse pending the hearing were veterinarian's fees of $1,129.70, agistment fees of $3,390.00 and feed of $257.85.
18. Ms Boogs challenged the calculation of agistment fees, but had no evidence on the matter and could really say no more than that she did not believe Ms Missen. However, Ms Missen gave clear evidence on the matter, obviously on oath, and as it was not contradicted by evidence to the contrary, I accept the evidence.
19. In these circumstances I will make the following orders:
    • In proceeding C2542/2015, that the proceeding is dismissed.
    • In proceeding C3164/2015, that Ms Boogs pay Ms Missen $9775.55 [comprised of the $5,000.00 refund plus the additional expenses of $1,129.70, $3,390.00 and $257.85]. Whilst the dismissal of proceeding C2542/2015 has the effect of extinguishing Ms Boog's claim for $2,500.00, as a matter of completeness I will order in proceeding C3164/2015 that Ms Missen has no obligation to pay that sum to Ms Boogs. I will also order Ms Boogs to reimburse the filing fee paid by Ms Missen on the proceeding, of $158.90.
20. It is not unusual in cases involving the sale of goods, where the Tribunal has in effect terminated the contract, to order the purchaser to allow the vendor to collect the goods after making payment to the purchaser. Unfortunately, occasionally these orders are not complied with. Where the purchaser is left holding an unwanted, but small, chattel this is not too great a problem. But where the purchaser is left holding a large item - such as a rusting old car or a live animal - it can cause great inconvenience to the purchaser. I wish to make absolutely clear that Ms Boogs is not entitled to withhold any of the money payable to Ms Missen under the above orders on the basis that she can set off her liability against the supposed value of the horse. Indeed, given that in a document one of the former owners had expressed regret that she had not had the horse put down, if Ms Boogs does not collect the horse within the time allowed in the Order, Ms Missen will be at liberty to dispose of it.

[1] At various points in these reasons I quote documents filed by the parties. In doing so I use [square brackets] where the document itself contained text in brackets, and (round brackets) on the few occasions I have inserted any words.

1. [2] Of lesser relevance is that on 9 November 2016 Kathryn Edney, an Equine Podiatrist and Veterinary Nurse, wrote of the horse's discomfort. Clearly her observations were well after the sale.

[3] Boogs v Missen [2017] VSC 50.

[4] Ms Missen's research revealed that the vet check had allegedly been carried out by Dr Kline. As set out in Dr Kline's letter, she strenuously denied the allegation.

[5] Australian Consumer Law and Fair Trading Act 2012, section 182(1).

[6] Australian Consumer Law and Fair Trading Act 2012, section 182(2).

[7] J L R Davis, ed. Thomson Lawbook Co 2006, at paragraph [7.9.2610].

[8] Section 19 of the Goods Act is expressed as 'there is no implied condition unless ...', rather than ' there is an implied condition if ...'.

1. [13] The word "inquiries" in the first paragraph of the above text was probably intended to be "injuries", given its proximity to the reference to the vet report.

[14] You cannot be "kept" in good health unless you are in good health to begin with. Similarly, you cannot "become" unwell unless, before them, you are not unwell.