Legislation cited: ACT Civil and Administrative Tribunal Act 2008, ss 26, 82 Australian Consumer Law, ss 18, 19, 82, 236 Competition and Consumer Act 2010 (Cth), Part VIA, Sch 2 Fair Trading (Australian Consumer Law) Act 1992, s 7 Fair Trading Act 1987 (NSW), s 42 Trade Practices Act 1975 (Cth) (repealed)

FITZPATRICK v ALLBIDS.COM.AU PTY LTD [2025] ACAT 90 | Case summary | Zoe

ACTACAT

FITZPATRICK v ALLBIDS.COM.AU PTY LTD

[2025] ACAT 90

ACT Civil and Administrative Tribunal|2025-12-16|Before: Member Daniel

View on the ACT Civil and Administrative Tribunal

General information, not legal advice.

At a glance

Source facts

Court

ACT Civil and Administrative Tribunal

Decision date

2025-12-16

Before

Member Daniel

Source

Original judgment source is linked above.

Email me a plain-English brief of this case

Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Judgment

Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FITZPATRICK v ALLBIDS.COM.AU PTY LTD (Appeal) [2025] ACAT 90

AA 45/2025 (XD 1624/2024)

Catchwords: APPEAL – consumer claim – where an auction house advertised a car as being well-maintained, well cared for by the previous owners and having a full service history – where car’s engine later failed - where purchaser claimed that car’s engine had been replaced with an inferior engine prior to sale - whether auction house’s conduct was misleading or deceptive within section 18 of the Australian Consumer Law – whether purchaser suffered loss or damage because of the conduct of the auction house – no evidence of true value of car at time of supply – appropriate measure of damages

Cases cited: ABN Amro Bank NV v Bathurst Regional Council [2014] FCAFC 65 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25 Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 CBRE (V) Pty Ltd v City Pacific Ltd (in liq) [2022] NSWCA 54 Dual Homes Victoria Pty Ltd v Moores Legal Pty Ltd [2016] VSC 86 Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited [2024] FCA 441 Feng v UP 840 [2023] ACAT 8 Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 Fox v Percy [2003] HCA 22 Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 Gould v Vaggelas (1984) 157 CLR 215Haley v Laing O'Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 Henville v Walker [2001] HCA 52 HTW Valuers v Astonland Pty Ltd [2004] HCA 54 Ireland v WG Riverview Pty Ltd [2019] NSWCA 307 Jonval Builders Pty Ltd v Commissioner for Fair Trading [2020] NSWCA 233 Keys Consulting Pty Ltd v Cat Enterprises Pty Ltd [2019] VSCA 136 at [70] Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 Lin v Zheng [2023] NSWCA 174 Mansour v Dangar [2017] ACAT 49 Mark Bain Constructions Pty Ltd v Avis [2012] QCA 100 Marks v GIO Australia Holdings Limited [1998] HCA 69 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31 Nadinic v Cheryl Drinkwater (As Trustee for Cheryl Drinkwater Trust) [2020] NSWCA 2 Netaf Pty Ltd v Bikane Pty Ltd (1990) 92 ALR 490 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 Potts v Miller [1940] HCA 43; (1940) 64 CLR 282 Sidhu v Van Dyke [2014] HCA 19 Travel Compensation Fund v Robert Tambree (t/as R Tambree & Assocs) (2005) 224 CLR 627; [2005] HCA 69 Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 Weston Energy Pty Ltd v National Ceramic Industries Pty Ltd [2025] NSWSC 747 Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd [2019] NSWCA 32 Wormald v Maradaca Pty Ltd [2020] NSWCA 289 Young v Chief Executive Officer (Housing) [2023] HCA 31 Zeng v Crane [2022] ACAT 70 Zong v Wang [2022] NSWCA 80 Tribunal: Presidential Member J Lucy

This is an appeal from a decision of the Original Tribunal, dismissing Ms Fitzpatrick’s claim for damages against the respondent, an auction house (Allbids), under the Australian Consumer Law. Ms Fitzpatrick purchased a second-hand BMW at an online auction conducted by Allbids, without inspecting it, and the car’s engine later suffered catastrophic failure.
Ms Fitzpatrick’s case was that Allbids had contravened section 18 of the Australian Consumer Law by engaging in conduct that is misleading or deceptive or is likely to mislead or deceive when advertising the BMW for sale at auction. The relevant conduct was representing in the advertisement that the car was well-maintained, that it had a full service history, and that it was well cared for by the previous owners as shown by its maintenance records. Ms Fitzpatrick also contended that Allbids’ conduct in failing to disclose that the car’s engine had been replaced with an inferior engine was misleading or deceptive.
The Original Tribunal found that, on the assumption that Allbids’ conduct was misleading or deceptive, Ms Fitzpatrick had not established that Allbids’ conduct in the listing of the BMW caused her loss. It attributed the cause of the engine failure to work done by mechanics at a BMW service centre shortly after Ms Fitzpatrick purchased the car.
Ms Fitzpatrick appealed from the Original Tribunal’s decision, dismissing her claim.
I found that the Original Tribunal erred in its approach to causation by failing to apply the correct test, being whether Allbids’ conduct had materially contributed to Ms Fitzpatrick’s loss. I then proceeded to determine Ms Fitzpatrick’s claim on its merits.
I decided that Allbids’ conduct in making the representations was misleading or deceptive, or likely to mislead or deceive, within section 18 of the Australian Consumer Law, but that its failure to disclose that the car’s engine had been replaced did not contravene that provision. I also found that Ms Fitzpatrick suffered loss or damage because of Allbids’ misleading conduct. For these reasons, I allowed the appeal and ordered Allbids to pay Ms Fitzpatrick $4,000 in damages, being the difference between what she paid for the car and its real value at the time of purchase.

On 5 December 2023, Allbids advertised a 2015 BMW for sale at auction (the BMW). The advertisement (or listing) stated that the car was a “well maintained luxury BMW 5-seater SUV” and that it “has been well cared for by the previous owner as shown by its maintenance records.” The advertisement also stated that the car was unregistered and disclosed its odometer reading of 140,703 kms and that its last service was in December 2020 at 135,825 kms. The advertisement included the BMW’s engine number, stating it to be a number beginning with “N47D.”
The advertisement included the following statement in bold: “We welcome any independent party to inspect motor vehicles on your behalf. This is highly recommended in the case you cannot see the car yourself.” Under that statement appeared the following disclaimer (referring to the information in the advertisement or listing): The information is intended as a guide only and ALLBIDS gives no guarantee or warranty about the accuracy of the information contained within. You must ensure that you have read, understood and agreed to the Terms and Conditions for Buying at Auction which include confirmation that vehicles are sold “as is, where is,” with all faults (if any) and you must independently verify information which is important to your purchasing decision.
On 13 December 2023, Ms Fitzpatrick bought the car at an online auction for $24,581.25, including the buyer’s premium. The odometer showed that the car had travelled 104,703 kilometres.
According to Allbids, it received the buyers’ premium of $2,731.25 including 1 GST for the sale, and a vendor fee of $275.
Ms Fitzpatrick claims that, on 21 December 2023, the car displayed a drive train warning and the limp mode automatically engaged, meaning the car could only be driven at 30 kilometres per hour.
On 3 January 2024, NRMA installed a new battery in the car.
On 5 February 2024, Ms Fitzpatrick took the car to Canberra BMW. According to a report of the service manager of Canberra BMW dated 7 April 2025, on 9 February 2024 the car had travelled 143,700 kilometres. It was booked in for a “drivetrain warning” and engine running concerns. The record stated: ‘Broken components near vehicle battery noticed when replaced recently.’ The EGR cooler was found defective and was subject to a campaign. This was replaced and cost covered by BMW AU. Diagnosis proceeded and the High-Pressure Turbo charger was found defective. (Internal bearing damage prevented it from spooling correctly and causing air mass deviations.) Also glow plugs were found defective. Turbocharger and Glow plugs were replaced, and vehicle was road-tested, and engine operation was fully restored. No faults were present or re-occurred after repairs and Quality control.
On 29 February 2024, after work had been done on the car, Ms Fitzpatrick collected it from the BMW service centre.
On 20 November 2024, Ms Fitzpatrick took the car back to Canberra BMW to assess what she said seemed to be a damaged turbo actuator. At this time, the odometer showed 157,872 kilometres.
On 21 November 2024, the BMW service manager, Mr Bas van Leeuwen, advised Ms Fitzpatrick that the car had experienced engine failure and could not be driven. Having consulted the service centre’s records, Mr van Leeuwen informed Ms Fitzpatrick that, in April 2021, at 139,312 kms, the BMW was towed in with engine failure. Mr van Leeuwen’s email to Ms Fitzpatrick stated:

An appeal tribunal may, as it considers appropriate, deal with an appeal as a 4 new application or as a review of all or part of the Original Tribunal’s decision. Generally, the appeal tribunal determines how it is going to deal with an appeal 5 at the first directions hearing, as it did in this case.
I dealt with the appeal as a review of the Original Tribunal’s decision. An 6 appeal which is dealt with as a review is what is usually called a rehearing.
In Mansour v Dangar [2017] ACAT 49, Presidential Member Daniel (as she then was) summarised the distinguishing features of the two different approaches to an appeal as follows: For a new hearing, established principles dictate that the hearing starts afresh, evidence is given again, and the appeal tribunal’s view on any question of fact or law is determinative of the issue. Any discretion to be exercised by the original tribunal is exercised anew by the appeal tribunal. 3 Transcript of hearing dated 16 May 2025, page 54, lines 20 to 26 4 ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), s 82(1) 5 Mansour v Dangar [2017] ACAT 49 at [23]; See Order 6 of Orders made on 18 June 2025 6 Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207 at [13]-[14]; see also Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275 at [36]-[37] By contrast, for a rehearing, the appeal tribunal relies upon the evidence given to the original tribunal, supplemented by any additional evidence which the parties are given leave to adduce. The appeal tribunal’s findings on questions of law are determinative. The appeal tribunal will not lightly substitute its own findings of fact for the original tribunal’s primary findings of fact, but may be less constrained in relation to drawing inferences of fact. The appeal tribunal is not at liberty to interfere with a discretionary decision unless satisfied that there has been an error in the exercise of discretion. (Footnotes omitted)
I have adopted that approach to an appeal by way of rehearing in this case.
In order to succeed on appeal, the appellant must establish an error of fact, law 7 or discretion. The appellant must also demonstrate that the error was material 8 to the result.

The phrase “materially contributed” is taken from Gaudron J’s judgment in Henville v Walker [2001] HCA 52, where her Honour said that a provision the equivalent of section 18 of the Australian Consumer Law should be understood as taking up the common law practical or common-sense concept of causation, and that “that commonsense approach requires no more than that the act or event in question should have materially contributed to the loss or injury 14 suffered.” This test has subsequently been applied in a large number of cases 15 and should be accepted as being authoritative.
The respondent relies upon the High Court’s decision in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, a negligence case. In that case, Deane, Dawson, Toohey and Gaudron JJ made the following observations about what is needed to establish causation where there 16 has been an intervening act: [W]here the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff or a third party which constitutes a more immediate cause of the loss or damage … the “but for” test, while retaining an important role as a negative criterion which will commonly (but not always) exclude causation if not satisfied, is inadequate as a comprehensive positive test. If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision. 14 Henville v Walker [2001] HCA 52 at [61] 15 See, for example, Weston Energy Pty Ltd v National Ceramic Industries Pty Ltd [2025] NSWSC 747 at [171]; Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited [2024] FCA 441 at [751]; Care A2 Plus Pty Ltd v Pichardo [2024] NSWCA 35 at [113]; Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [109]; Zong v Wang [2022] NSWCA 80 at [27] 16 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 at CLR 6-7.
To put it simply, an intervening act does not always break the chain of causation. It is relevant to ask whether the defendant's wrongful act or omission is, as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. That is consistent with what was said by the High Court in Travel Compensation Fund v Robert Tambree (t/as R Tambree & Assocs) (2005) 224 CLR 627; [2005] HCA 69.
Here, the act done in reliance on the statements in the advertisement is claimed to be the purchase of the car. If the car was defective at the time of purchase, a possibility arises that there is a causal link between Allbids’ conduct in advertising the car and the loss suffered by the appellant, even if the later intervention of BMW contributed to the loss.
The Original Tribunal said that it was not satisfied of causation “given the intervention of Canberra BMW in February of 2024” but did not go on to ask whether the car had been fitted with an unsuitable engine, or an engine with the wrong turbochargers fitted to it, before Ms Fitzpatrick purchased it. The answer to that question is relevant to resolving the issue of whether Allbids’ conduct caused or materially contributed to Ms Fitzpatrick’s loss.
The Original Tribunal did not apply the correct test because, as Ms Fitzpatrick has argued, it did not consider whether any misleading or deceptive conduct by Allbids materially contributed to Ms Fitzpatrick’s loss.
I find that this ground is established.

The High Court dealt with the effect of a disclaimer in an advertisement in the context of a claim of misleading and deceptive conduct in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 (Butcher).
In Butcher, two individuals agreed to purchase a Sydney waterfront property from its owners. A real estate agent provided the purchasers with a glossy brochure on which appeared a survey diagram, incorrectly showing the high water mark to be at a certain location. It turned out that the high water mark traversed the swimming pool. A disclaimer on the brochure stated: All information contained herein is gathered from sources we deem to be reliable. However we cannot guarantee it’s [sic] accuracy and interested persons should rely on their own enquiries…
The majority of the High Court, Gleeson CJ, Hayne and Heydon JJ, observed 31 that the purchasers were “intelligent, shrewd and self-reliant.” Their Honours held that the brochure read as a whole, including the two disclaimers, made it clear to the reasonable purchaser that the real estate agent was not the source of the information which was said to be misleading. The real estate agent was 32 simply passing on information supplied by others. Accordingly, the agent did not engage in conduct towards the purchasers which was misleading. The agent “did no more than communicate what the vendor was representing, without 33 adopting it or endorsing it.”
In Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, the High Court considered a claim for misleading or deceptive conduct in contravention of section 42 of the Fair Trading Act 1987 (NSW), which was similar in terms to section 18 of the Australian Consumer Law. The vendor of shares in a company provided documents prior to making of share sale agreement that the purchaser claimed were inaccurate in various respects. The share sale agreement contained an entire agreement clause and a provision denying that the purchaser relied upon any warranty made by or on behalf of the vendor, except those set out in the agreement.

In a joint judgment, Gummow, Hayne, Heydon and Kiefel JJ found that the claims under the Fair Trading Act 1987 (NSW) failed for reasons which did not 34 relate to the entire agreement clause. However, their Honours observed: It is as well to add, however, that, of itself, neither the inclusion of an entire agreement clause in an agreement nor the inclusion of a provision expressly denying reliance upon pre‑contractual representations will necessarily prevent the provision of misleading information before a contract was made constituting a contravention of the prohibition against misleading or deceptive conduct by which loss or damage was sustained. As pointed out earlier, by reference to the reasons of McHugh J in Butcher, whether conduct is misleading or deceptive is a question of fact to be decided by reference to all of the relevant circumstances, of which the terms of the contract are but one. (footnote omitted)
More recently, the NSW Court of Appeal considered the effect of a disclaimer in an auction listing in Ireland v WG Riverview Pty Ltd [2019] NSWCA 307 (Ireland). In that case, vendors sold a bull at auction. The listing in an auction catalogue falsely specified that the bull’s sire was a particular stud bull. The catalogue also contained a disclaimer of liability concerning the accuracy of the information set out in it. At first instance, the purchaser succeeded in an action for damages based upon a contravention of section 18 of the Australian Consumer Law.
The NSW Court of Appeal upheld the appeal. The Court found that the conduct of the person alleged to have engaged in misleading or deceptive conduct must be viewed as a whole and the provision of a disclaimer is part of the conduct 35 that is required to be considered. It found that the conduct was not misleading and deceptive, when the disclaimer was considered. 36
In Ireland, the purchasers “were intelligent, experienced commercial people.” The purchaser of the bull, a company, was represented by a person who “had 37 extensive experience in the breeding, purchase and sale of Angus cattle.” That person understood that the only means of identifying the sire of Angus progeny with certainty was through DNA testing and he presumed that this had not 34 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25 at [130] 35 Ireland at [66]-[67] 36 Ireland at [70] 37 Ireland at [70] 38 occurred. The identity and knowledge of the buyer were relevant to the Court’s determination that the conduct was not misleading or deceptive.
Ms Fitzpatrick submitted that Allbids could not contract out of liability for misleading or deceptive conduct under section 18 of the Australian Consumer Law, relying upon Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 39 157 (Viterra Malt). In that case, the Victorian Court of Appeal observed that “[i]t is not possible for a person to ‘contract out’ of s 18.” Their Honours also pointed out that section 18 imposes a norm of conduct, but the consequences of failure to observe the norm are provided for elsewhere in the Australian 40 Consumer Law. It is not suggested in the present case, however, that the parties contracted out of section 18 of the Australian Consumer Law.
Having comprehensively reviewed the relevant authorities concerning the effect of disclaimers in misleading or deceptive conduct claims, the Victorian Court of 41 Appeal observed: No representation clauses and no reliance clauses and other forms of disclaimers can have an evidentiary effect that negates an integer of liability in relation to misleading or deceptive conduct. They may alter the character of a representation which was made. They may render conduct not misleading or deceptive. They may lead to a conclusion that a claimant did not rely upon the conduct or did not suffer loss because of the conduct. Such provisions, however, cannot otherwise have the effect of absolving a party from liability for misleading or deceptive conduct, even where their express terms purport to do so…
It is plain from the authorities discussed above that the disclaimers in this case are relevant in that they form part of the circumstances in which the question of whether Allbids’ conduct was misleading or deceptive is to be assessed. That conduct includes making the disclaimers and providing the terms and conditions. However, disclaimers are not determinative of the question of

Ms Fitzpatrick submitted that Allbids’ representation that the car had been “well cared for by previous owners as shown by the maintenance records” suggests a clear and transparent vehicle history through various ownership and that the 46 maintenance records speak to how well the vehicle has been cared for. She submitted that the onboard service records (the digital service records) were not complete by their nature.
Ms Fitzpatrick relied upon a report of Mr Bas van Leeuwen, the service manager of Canberra BMW, dated 7 April 2025. In that report, Mr van Leeuwen stated that, after the vehicle presented with engine running concerns on 20 November 2024, “we looked into the engine failure and found the engine was not original to the vehicle.”
Mr van Leeuwen provided a history of the vehicle. This included the following: April 2021 @139,312km Vehicle towed in with engine failure. We diagnosed a failed timing chain. Vehicle was towed away from our Dealership, no further diagnosis work or repairs were undertaken with Canberra BMW.
Mr van Leeuwen stated in his report: The vehicle was manufactured with a N47T engine, (top power class), with Engine Identification Number 70579057. The engine number currently fitted to the vehicle is a N47D engine with identification number 73358804. This designation ‘D’ indicates a different power class rating. The engine has been exchanged with a lower power class unit. Different Power class engines allow engines to be fitted across different model vehicles. Major differences include internal materials used for strength, to handle different performance outputs such as higher torque for heavier or more powerful vehicle variants. We believe this is why the internal rotating assembly has been overloaded for its intended purpose and has mechanically failed.
Craig Homann of Craig Homann Automotive also provided Ms Fitzpatrick with a report about the possible causes of a catastrophic engine failure in the BMW. Mr Homann has been employed in the automotive industry for 30 years and is a qualified mechanic with extensive experience in European cars. He stated:

That table Ms Fitzpatrick provided showing the different records of the car’s engine number accurately represents the evidence. The key question is whether the car was originally fitted with an “N47T” engine which was replaced at some time before the car was sold to Ms Fitzpatrick.
It is not in dispute that the engine currently has a different engine number from the number shown in the registration details, nor that the engine numbers in the Personal Property Securities Register (PPSR) Report and Allbids’ advertisement are incorrect because they are missing a digit.
The main evidence supporting Ms Fitzpatrick’s claim that the engine was originally an N47T engine, which was replaced with an N47D engine prior to her purchase of it is: (a) Mr van Leeuwen’s evidence that the BMW service centre’s records indicate that the car originally had a different engine number, starting with “N47T,” including a picture from BMW’s global manufacturing system; (b) Mr van Leeuwen’s evidence that, in April 2021, the BMW was towed into the service centre with engine failure, that the BMW dealership diagnosed a failed timing chain and that the vehicle was towed away again without any repairs having been conducted; (c) Mr Homann’s opinion that the engine that should be fitted to the vehicle is the N47T diesel engine; and (d) Ms Fitzpatrick’s evidence that she had not changed the engine.
The main evidence supporting the conclusion that the engine was always an “N47D” and/or that the engine was not changed prior to sale is: (a) A Carsales advertisement showing a BMW X5 car manufactured in 2014 with engine code beginning with “N47D” and a Carsales advertisement showing a BMW X5 car manufactured in 2015 with engine code beginning with “N47D”; (b) Allbids’ evidence that it drew the engine number in its advertisement from government issued registration records at the time of sale; (c) The fact that the car was re-registered after Ms Fitzpatrick’s purchase of it with an engine number different from the number on the engine currently, and similar to the engine number as at manufacture, as demonstrated by photographic evidence; (d) Mr Wiggan’s opinion that the N47D engine was the most commonly fitted engine for the BMW.
The BMW service centre records which show that the car previously had a different engine number provide strong evidence that the engine has been changed. It is possible, but unlikely, that those records are incorrect. It may be inferred from the circumstances that the car suffered engine failure in 2021, was taken away from the BMW service centre without being repaired, then was driveable in 2023, taken with the evidence that the car now has a different engine number, that the engine was replaced.
I accept Ms Fitzpatrick’s evidence that she did not change the engine. It was not seriously suggested that she had done so.
The Carsales advertisements and Mr Wiggan’s evidence establish that cars of a similar type were manufactured with an N47D engine around the same time, but do not establish that the BMW was not in fact manufactured with an N47T engine. Allbids accepts that the BMW records “may raise a possibility of a past 49 replacement.”
It is plain that the government records are incorrect because the engine number is only 7 digits (as per the table above) instead of the required 8. Given that the engine number in the registration records (N47D 7059-057) is similar to the BMW number at manufacture (N47T 7057-9057), it may be inferred that the engine number was incorrectly recorded in government records from the outset. This appears to have been an administrative error.
The fact that the current registration details contain an engine number similar to the number shown by BMW records to be the engine number at the date of manufacture tends to support Allbids’ submission that the engine was not replaced before sale to Ms Fitzpatrick. I accept Mr Nuessler’s evidence that the engine number is required to be verified before a car is re-registered after having been unregistered. However, it may be inferred that such verification did not occur in this case, given that the registration number is one digit short and this was not identified by the inspector. The inspector’s failure to verify the engine number may have been attributable to the physical difficulties in viewing it, as attested to by Mr Homann.
For these reasons, I find, on the balance of probabilities, that the BMW was originally fitted with an N47T engine and that a previous owner had the engine replaced with an N47D engine, after it was brought into the BMW service centre in April 2021 and before the sale to Ms Fitzpatrick. 49 Allbids’ additional submissions dated 9 September 2025 at [8] Was the conduct in making the “full service history” representation misleading or deceptive?
The representation is to be considered in the context of Allbids’ conduct as a whole in drafting and placing the advertisement and providing disclaimers.
The first question is whether the conduct of representing that the BMW comes with a “full service history,” when considered in the context of Allbids’ conduct as a whole (including making the disclaimers), was misleading or deceptive or likely to mislead or deceive.
Allbids submits that “full service history” means that scheduled logbook 50 servicing has been carried out and recorded. It relies upon a report from Luke Radford, director of Car Buying Co Pty Ltd, dated 28 May 2025. Mr Radford has worked as an auctioneer and wholesaler/retailer of motor vehicles for the last 12 years. In his opinion, the terminology of “full service history” refers to a car having either a stamped or digitally lodged service history in, or close to the service intervals set by the manufacturer. He states that repairs made to the vehicle for matters such as engine repairs are not logged as service history, nor required to be.
The issue is not how the term “full service history” is understood in the motor industry, but how an ordinary or reasonable person in Ms Fitzpatrick’s position, as a potential purchaser of a second-hand motor vehicle, would understand it.
Ms Fitzpatrick submits that the word “full” alludes to a complete service history and that that is not accurate because the service history provided did not refer to engine failure or engine replacement.
I accept Ms Fitzpatrick’s submission that the word “full” would convey to a reasonable or ordinary consumer that the service history was complete. As Allbids accepted, the only service history available to Allbids was the digital history included with the advertisement. This did not provide any detail about what occurred at each service. Each photograph of the service history on the car’s dashboard is headed “Service history” without the word “full.” The use of 50 Allbids’ submissions dated 13 May 2025 at [39] the word “full” in the advertisement suggests that Allbids is in possession of another more complete service history.
Further, I consider that the term “service history” would convey to a reasonable or ordinary consumer a history of occasions on which the car had been serviced, including by making repairs to the vehicle. The service history provided omitted any mention of the engine replacement.
The alleged contractual term that photographs and descriptions were guides only and did not form the basis of a warranty probably does not apply to the representation about the full service history. It is likely that the “photographs and descriptions” referred to in that alleged contractual term are photographs and descriptions of the car. The statement that there is a full service history is not properly described as a “description” of the car. It suggests, rather, that Allbids possesses additional records which have not been included in the advertisement (being the “full service history” and the “maintenance records”).
The statement that the information in the advertisement “is intended as a guide only and ALLBIDS gives no guarantee or warranty about the accuracy of the information contained within” provides a warning about the reliability of the information in the listing. It does not, however, have the effect of completely countering the tendency of the representation to mislead. A reasonable or ordinary consumer would infer that the information in the advertisement had some degree of reliability, notwithstanding the disclaimer, particularly in circumstances where the representation gave the impression that Allbids possessed records additional to those produced in the advertisement, supporting its claims.
The statement in the listing that buyers were required to verify information important to their purchasing decision, raises the question as to whether a reasonable consumer would have been likely to be misled by the representation, in circumstances where that hypothetical person chose not to inspect the car or take any other steps to verify the information in the advertisement. In Parkdale 51 Custom Built Furniture Pty Ltd v Puxu Pty Ltd, Gibbs CJ found that an equivalent provision did not impose burdens which operated for the benefit of persons “who fail[ed] to take reasonable care of their own interests.” Having referred to that statement, French CJ, Crennan, Bell and Keane JJ said in 52 Australian Competition and Consumer Commission v TPG Internet Pty Ltd: Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error. That is to say there must be a sufficient causal link between the conduct and error on the part of persons exposed to it. It is in that sense that it can be said that the prohibitions in s 52 and s 18 were not enacted for the benefit of people who failed to take reasonable care of their own interests. (footnote omitted)
In my view, the representation that the car came with a full service history was misleading, or likely to mislead because it had a tendency to lead into error. An assumption that a buyer would be provided with a service history containing more detail than that provided in the advertisement could not properly be described as an assumption which is extreme or fanciful. The representation was a positive assertion about the existence of records of which Allbids could be taken to have direct knowledge.
I find, having regard to Allbids’ conduct as a whole, that its conduct in making the representation that the BMW came with a “full service history” was misleading or likely to mislead within section 18 of the Australian Consumer Law.

The chronology provided by Ms Fitzpatrick when she lodged her civil dispute application indicates that the first instance of the drive train warning and limp mode automatically engaged was on 21 December 2023. Ms Fitzpatrick stated in the chronology annexed to her civil dispute application that, when that occurred, the car would only drive at 30 kilometres per hour and the driver, who was driving back from Tathra, just had to drive slowly. She states she did not drive the car until the new battery was installed. Her chronology indicates that the new battery was installed on 3 January 2024.
It is possible that the car was driven for a significant number of kilometres after purchase on 13 December 2023 and before 21 December 2023, particularly in light of Ms Fitzpatrick’s claim that it was driven to Tathra. Allbids’ representative did not ask Ms Fitzpatrick to explain, at the hearing, how the car acquired an additional 2,000 kilometres on the odometer.
I accept Ms Fitzpatrick’s evidence that the car experienced the issues she described on 21 December 2023. She was not challenged on that evidence at the hearing. Her explanation that she could not get an appointment with the BMW dealership until February 2024 is plausible. The evidence that the NRMA observed broken components near the battery is also consistent with the car experiencing issues.
There is no evidence as to when Ms Fitzpatrick first re-registered the car. Given that she says it was being driven home from Tathra on 21 December 2023, I find that it is more likely than not that the BMW was re-registered before 21 December 2023 and that Ms Fitzpatrick obtained a roadworthy certificate shortly after purchase.
Mr van Leewin’s report indicates that, on 9 February 2024, the car was booked in to the BMW dealership for a “drivetrain warning” and engine running concerns. The dealership found that a high-pressure turbocharger was defective. Mr van Leewin states that after the turbocharger and glow plugs were replaced, “engine operation was fully restored.”
Ms Fitzpatrick claims that the car continued to experience “underlying power/ drive train/lag issues” after the BMW dealership repaired the car in February 64 2024 and before she brought it back to the dealership on 20 November 2024. I accept that evidence. She was not cross-examined on it or challenged on it at the hearing.
I find, on the balance of probabilities, that the engine replacement which occurred some time between April 2021 and July 2022 caused the car ongoing mechanical difficulties. That is for the following reasons.
I find, on the basis of Mr van Leewin’s evidence, that the N47T was a top power class engine and that it was replaced with a lower power class unit (the N47D engine). This is consistent with Mr Homann’s evidence, who describes the N47T as a “more robust and higher performing version of its predecessor, the N47D.” Mr Wiggan does not provide any evidence to the contrary.
As to Mr Wiggan’s evidence that the N47D was the most commonly fitted engine to this particular vehicle, I accept that the N47D engine was also fitted to at least some of the BMW X5 2014 25D model cars. However, this does not mean that the turbochargers fitted to that model of car were the same, irrespective of whether the car was fitted with an N47D engine or an N47T engine.
I accept Mr Homann’s evidence that the effect of fitting the high performance engine’s turbochargers to the lower performance engine was to overload the engine, leading ultimately to its failure. That is consistent with Mr van Leeuwin’s opinion that the fitting of the N47D engine overloaded the internal rotating assembly. The turbocharger which BMW replaced on 9 February 2024 was replaced with a turbocharger of the same power, according to Ms 65 Fitzpatrick. Ms Fitzpatrick is not an expert mechanic. However, the evidence tends to support the conclusion that this was the case.
Mr van Leeuwin’s report indicates that on 9 February 2024, the “high-pressure turbo charger” was replaced and also indicates that the vehicle was equipped

It remains to consider whether Allbids’ conduct in failing to disclose that the BMW’s engine had been replaced “with an inferior engine” was misleading or deceptive, or likely to mislead or deceive.
Ms Fitzpatrick submits that section 18 of the Australian Consumer Law applies to conduct of all kinds including silence. Silence may be misleading or deceptive where the circumstances give rise to a reasonable expectation exists 67 that disclosure of the fact (if it exists) should be made. It is not in dispute that Allbids did not know that the car’s engine had been replaced.
The cases concerning the circumstances in which silence may be misleading generally involve a party with knowledge of a fact or circumstance which is not 67 Nadinic v Cheryl Drinkwater (As Trustee for Cheryl Drinkwater Trust) [2020] NSWCA 2 at [40]; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31 at [18]-[21]. See Ms Fitzpatrick’s submission filed 14 May 2025 at [2.10.1] disclosed. Barrett AJA of the NSW Court of Appeal has observed that “unless the circumstances as a whole are such as to give rise to a reasonable expectation of disclosure of some relevant fact known to exist but not communicated, there is no basis on which silence of itself can warrant an inference of a 68 representation that the fact does not exist” (my emphasis).
It is not plain from the authorities that silence may constitute misleading or deceptive conduct within section 18 of the Australian Consumer Law in circumstances where the silent party is ignorant of the undisclosed fact. Even if it may, I find that Allbids’ silence was not misleading or deceptive in the circumstances of this case.
A purchaser in Ms Fitzpatrick’s position could not have had a reasonable expectation that Allbids would disclose the mechanical history of the car about which it had not been informed. The advertisement stated that “you must independently verify information which is important to your purchasing decision” and also that Allbids “highly recommended” inspection of the car which was sold “as is, where is.” The failure to make reasonable inquiries, whilst not automatically defeating a statutory claim for damages for misleading or deceptive conduct, is a circumstance that is relevant to a consideration as to 69 whether a failure to make disclosure is correctly characterised as misleading. The evidence indicates that Ms Fitzpatrick did not make any inquiries before purchasing the car, and did not inspect the car.
In these circumstances, the non-disclosure by Allbids of the engine replacement did not offend section 18 of the Australian Consumer Law.

Ms Fitzpatrick did not provide any witness statements to the Original Tribunal. Her written assertion about reliance was made in the course of submissions and her oral “evidence” about reliance was also given in the course of oral submissions. That is not unusual for a self-represented litigant. The tribunal may 74 inform itself in any way it considers appropriate in the circumstances and that includes by having regard to statements in the nature of fact or opinion made in the course of submissions.
The Original Tribunal did not make any distinction between evidence and submissions in the conduct of the hearing, or invite the parties to question one another or their witnesses. This may be because neither party had submitted a witness statement. Accordingly, Ms Fitzpatrick’s statements about reliance, made in the course of submissions, were not tested. Allbids’ representative could have asked to cross-examine Ms Fitzpatrick on those statements, but did not do so.
When considering whether to accept Ms Fitzpatrick’s statement that she relied upon Allbids’ representations, it is relevant to consider the disclaimers in the advertisement. As indicated above, the advertisement contained the warning that: You must ensure that you have read, understood and agreed to the Terms and Conditions for Buying at Auction which include confirmation that vehicles are sold ‘as is, where is,’ with all faults (if any) and you must independently verify information which is important to your purchasing decision.
In Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83, a case on which Allbids relies, Lockhart J said of two exclusion clauses that 75 they did not necessarily negate inducement: I turn now to the two special conditions, 6 and 7. The trial judge considered the effect of special conditions 6 and 7 of the contract for sale and found that they did not operate to defeat a claim under s 52, whatever effect they may have in the law of contract, because an exclusion clause of that kind cannot oust the effect of the Act or deprive an applicant of remedies under it. If in fact there was misleading conduct by Henjo which

The real question is the appropriate inference to be drawn from the whole of the 81 evidence.
I accept Ms Fitzpatrick’s statement in her written submission that she would not have bought the car if she knew that it did not have a complete service history and that it had suffered engine failure and that the engine had been replaced with an “inferior engine.” However, that does not answer the question of whether she relied upon Allbids’ misrepresentations when deciding to bid on the car, in circumstances where Allbids was not obliged to disclose the previous engine failure or engine replacement. Ms Fitzpatrick stated at the hearing that Allbids’ claim that the car had “a full service history” was “an important part of me relying on in buying the car.” That statement was not challenged. She also stated that she relied upon Allbids’ statements that the car was well cared for by previous owners and well-maintained.
I find, on the balance of probabilities, that Ms Fitzpatrick relied upon those representations when deciding to bid on the BMW for the following reasons. First, she has said that she did so. Secondly, the words “Well-maintained Luxury BMW” appear prominently in the advertisement, under the first photograph of the car and the words “well cared for by the previous owner as shown by its maintenance records” also appear near the beginning of the advertisement, under the heading “Key Facts.” The words “Full service history” also appear near the top of the advertisement. Their prominence in the 81 Sidhu v Van Dyke [2014] HCA 19 at [64]; Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [77] advertisement makes it more likely she relied upon them. Thirdly, Ms Fitzpatrick entered into the contract with Allbids after having read the advertisement, without inspecting the car, which supports the inference that she relied upon the advertisement. Fourthly, as Ms Fitzpatrick pointed out, Allbids advertised itself as “Australia’s trusted home of unique online car auctions” and 82 this was a factor in her purchasing decision. In other words, it made her more likely to trust Allbids’ representations.
I have taken into account that the advertisement stated at the end that vehicles were sold “as is” and that the buyer must independently verify information important to the buyer’s purchasing decision. However, that does not lead inevitably to the conclusion that Ms Fitzpatrick did not in fact rely upon the representations in the advertisement. I find, having regard to all of the material before me, that she did.

Ms Fitzpatrick seeks damages comprising the purchase price of $24,850 plus statutory interest and reimbursement of the appeal filing fee of $659. She stated that she paid about $8,000 for repairs to the car between February and April 84 2024 but does not claim those costs.
Ms Fitzpatrick provided a quotation from Canberra BMW dated 16 January 2025 for $56,813.89 to replace the engine. She also provided an email from Canberra Fast Car Removals dated 26 November 2025 stating that they would give her between $500 and $800 for the vehicle for scrap. In submissions filed 84 Ms Fitzpatrick’s submission filed on 14 May 2025 at [1.4] on 25 November 2025, Ms Fitzpatrick stated that she had suffered a number of losses associated with the car’s engine failure, including being three months without a car, time invested in tribunal proceedings estimated at 187 hours (some of which she said was taken as leave from work) and taking on an emotional and physical burden throughout the process.
Ms Fitzpatrick stated that she focused on reliance loss (loss suffered as a result of reliance on Allbids’ conduct). However, she emphasised that she was only seeking a portion of the loss incurred.
Allbids submits that damages under the Australian Consumer Law are compensatory and assessed at time of supply as the difference between value as represented and actual value. It says that a second-hand X5 with an N47D engine and disclosed maintenance records retains substantial value, and that wholesale engine replacement costs months later are not the measure against 85 Allbids.
Allbids also submitted that Ms Fitzpatrick had not demonstrated that any misrepresentation caused measurable harm. It said that, under section 236 of the Australian Consumer Law, Ms Fitzpatrick had the onus of proving that the misrepresentation materially contributed to a reduction in the vehicle’s value at 86 the time of sale and that she had not discharged that onus. It submitted that the vehicle had passed a roadworthy test after purchase, had operated functionally for almost a year and had travelled about 17,000 kilometres before failure. Allbids said that without admissible evidence of diminution in value attributable to a misrepresentation, it had contributed to no measurable harm.
Allbids submitted that there is a four step process to the measurement of damages: (a) STEP 1 – Ascertain the value as represented. It said the sale price ($21,850) was that value;

In Marks v GIO Australia Holdings Ltd, the plurality (McHugh, Hayne and Callinan JJ) applied this approach to a misleading and deceptive conduct claim. 91 Their Honours observed: [48] A party that is misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than the course in fact adopted. Thus, the party that is misled will have suffered loss if a chose in action which was acquired was worth less than the amount paid for it. There may well be other ways in which it might suffer loss or damage. For example, consequential loss may be suffered. But no loss of that kind was alleged in this case and, putting that kind of loss to one side, we focus only on loss said to be suffered by the making of the contract. [49] It is necessary, then, to determine whether the value of what was acquired is less than what was paid. How is value to be assessed? It is to be assessed objectively, not according to what either or both of the parties to the contract believed that it would obtain from the contract. That is, the value of what in fact was acquired is to be identified according to what price freely contracting, fully informed parties would have offered and accepted for it. It is only by comparison with the value assessed in this way that there can be an assessment of whether the party that is misled could have obtained some greater benefit or incurred less detriment. What is important is what that party could have done, not what it might have hoped for or expected… (footnotes omitted)
The measure of damages in misleading and deceptive conduct cases again came before the High Court for consideration in HTW Valuers v Astonland Pty 92 Ltd. In a unanimous decision, Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ referred to the “rule” in Potts v Miller and observed that “the ‘rule’ is 93 94 not universal or inflexible or rigid.” Their Honours continued: One key qualification of the rule which prevents it from being inflexible is that the test depends not on the difference between price and “market value”, but price and “real value” or “fair value” or “fair or real value” or “intrinsic” value or “true value” or “actual value” or what the asset was “truly worth” or “really worth” or “what would have been a fair price to be paid … in the circumstances … at the time of the purchase”. This distinction is sometimes difficult to draw, but it is old and fundamental. (footnotes omitted)

[873] The principles to be drawn from these High Court authorities as to the measure of damage where a party is misled or deceived into acquiring an asset are the following: (1) The measure described by Dixon J in Potts v Miller as the difference between the price paid and the true value at the time of acquisition is ‘well established’ as ‘usually applicable’ (Gould v Vaggelas, per Gibbs CJ). It has been ‘consistently held’ to be the ‘proper measure’ (Kizbeau), and described as ‘commonly employed’ (HTW Valuers). However, the legislation does not prescribe this approach: it is no more than a guide (HTW Valuers). It is a particular application of the general principle that a plaintiff is entitled to recover a sum representing the prejudice or disadvantage suffered as a consequence of altering its position (Gould v Vaggelas). (2) True value is to be determined objectively by reference to what price freely contracting, fully informed parties would have offered and accepted, not according to what either or both of the parties to the contract believed it would obtain (Marks). (3) However, true value is not the same as market value. Events subsequent to the acquisition may indicate or reflect the true value and thus the measure of the loss earlier suffered. This is, to use Dixon J’s own word, a ‘qualification’ on the Potts v Miller approach. Subsequent events may fall within the ambit of this ‘qualification’ if they are unaffected by ‘extraneous causes’ (HTW Valuers). Whether subsequent events give a reliable indication or reflection of the loss suffered upon acquisition depends on all the circumstances (Kizbeau). (4) Additional consequential losses, over and above those calculated by the Potts v Miller approach, may be recoverable in an appropriate case (Gould v Vaggelas, per Gibbs CJ), although given that true value at the time of the acquisition is based upon projected profitability (in the light of subsequent events where appropriate), care would then need to be taken to avoid double counting (Gould v 95 Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 at [873] Vaggelas, per Dawson J). In a similar way, subsequent events may reveal that an apparent loss at the time of acquisition had not in fact been sustained as matters had transpired (Kizbeau). (5) One reason why the Potts v Miller approach is generally adopted is the desirability of separating out losses resulting from extraneous factors in the later history of the asset (HTW Valuers). This is particularly so where there has been a significant lapse of time. (6) A ‘left in hands’ approach may be particularly appropriate where no issue of separating out subsequent losses resulting from extraneous events arises (HTW Valuers). (7) There is not a binary choice between a Potts v Miller approach and a ‘left in hands’ approach (and there may be other options in certain cases) in which one option is wrong and the other correct. Both might be open in a given case (HTW Valuers). In every case, the initial question is: what loss does the claimant allege (Berry)?

Ms Fitzpatrick has not provided any evidence of the car’s real or true value at the time she acquired it, focusing instead on its present value. She has not made submissions as to the real value at time of sale. Nor has she provided evidence of the value of an equivalent car with the correct engine in today’s market, or at the time the engine failed, for the purpose of taking account of the car’s depreciation over the time she used it.
Where a party is able to produce evidence about loss and damage, the party must do so with as much certainty and particularity as is reasonable in the 98 circumstances. That may be distinguished from a situation which does not permit damages to be assessed with certainty, where a court or tribunal must 99 estimate damages as best it can. In this case, whilst expert evidence would have been of assistance, it is questionable how much certainty could have been provided. What is reasonable in the circumstances in terms of evidence must be approached having regard to this being a small claim, made before a tribunal.
There are various ways in which the car’s true value might be conceptualised. It might be the market value of an unregistered 2015 BMW X5 fitted with an N47D engine. If so, given that the car was advertised as having an N47D engine, it might be assumed that Ms Fitzpatrick paid market price. Alternatively, the true value might more appropriately be understood to be the value of an unregistered 2015 BMW X5 fitted with an N47D engine, currently driveable, but with the wrong turbochargers.
Adopting the latter approach, which I consider most accurately to reflect the car’s true value, I have estimated damages as best I can. I find that the car would have been worth less, but not significantly less, if the car’s engine status 98 Keys Consulting Pty Ltd v Cat Enterprises Pty Ltd [2019] VSCA 136 at [70] 99 Keys Consulting Pty Ltd v Cat Enterprises Pty Ltd [2019] VSCA 136 at [69]-[70] was known. It might still have been capable of repair at that time. Assessing Ms Fitzpatrick’s loss as best I can, and having regard to the costs of replacing the turbochargers and doing other work which are before the Tribunal, I find that the value of the car would be diminished by approximately $4,000. I have therefore awarded Ms Fitzpatrick $4,000, being the difference between the price she paid for the car and its true value. I do not consider that it is appropriate to discount that figure by reference to her use of the vehicle, given that she experienced mechanical issues within the first two weeks of driving it and thereafter incurred many costs and experienced much inconvenience associated with the car.