Gavin v Inchcape Automobiles Retail Pty Limited

CATCHWORDS : Contract for sale of motor vehicle - alleged misrepresenations - case propounded before Tribunal failed by reason of findings of fact - Plaintiff cannot run a new and different case on appeal.

LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, ss 65, 67

Kevin Gavin (Plaintiff) PARTIES : Inchcape Automobiles Retail Pty Limited (trading as City Automobiles) (First Defendant) Consumer, Trader and Tenancy Tribunal (Second Defendant)

Mr P Bruckner (Plaintiff) COUNSEL : Mr A Moses (First Defendant) Submitting Appearance (Second Defendant)

Kevin Solari, Solicitor (Plaintiff) SOLICITORS : Ellen Beerworth & Associates (First Defendant) I V Knight, Crown Solicitor (Second Defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30076 of 2005 Kevin Gavin v Inchcape Automobiles Retail Pty Limited (t/as City Automobiles) & 1 Ors

JUDGMENT 1 His Honour: The Plaintiff purchased a Jaguar Motor Vehicle from the First Defendant for the sum of $105,000. The Contract to purchase was signed on 13 July 2002. The Plaintiff was given a copy. The vehicle was purchased sight unseen. At the time of the signing of the contract, the contract contained certain blanks. The Plaintiff inspected the vehicle prior to the taking of delivery and paying the balance purchase money. 2 The Plaintiff dealt with a salesman (Mr Carrington). During his conversations with the salesman the Plaintiff alleges that he made a stipulation as to the time of the vehicle's manufacture and received a representation that it was built in 2002. At or about the time of delivery the salesman completed certain details in the Contract. These included a "built date" of the vehicle, a compliance date and the word "demo" which Mr Carrington ascribed to the top of the Contract document. 3 The Plaintiff took delivery of the vehicle on 19 July 2002. Thereafter, he discovered that the vehicle had been built in September 2001, that the Contract had been ascribed with the word "demo" and that the Defendant had claimed a demonstrator vehicle rebate from its wholesale supplier.

4 The Plaintiff then took the stance that he had been misled. On 19 January 2004, he made application to the Consumer, Trader and Tenancy Tribunal (the "Tribunal") seeking inter alia a refund of the purchase price. The application was prepared by his solicitor. It had an attachment which inter alia set forth details of the complaint. 5 The details alleged inter alia a stipulation by him that the car must be made in 2002, a representation that it was manufactured in that year and his reliance on that representation. 6 The application proceeded to a hearing before a Tribunal Member (Mr Carpentieri). The hearing was completed on 11 February 2005. Written reasons for decision were given on 15 August 2005. The Tribunal Member dismissed the application. 7 Subsequently, the Plaintiff brought proceedings in this Court. He now proceeds on a Second Further Amended Summons. Relief is sought pursuant to both sections 65 and 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the "Act"). The relief is pressed on a number of bases. 8 The hearing took place on 30 June 2006. Both parties were represented by Counsel. The Court has had the benefit of detailed written submissions supplemented by oral argument. 9 At the time of the hearing, the issues ventilated had been distilled down to two areas. One area concerned an alleged misrepresentation as to the "built date" of the vehicle. This has been called the 2002 Model Misrepresentation. The other concerned an alleged misrepresentation as to it being a new vehicle (as opposed to a demonstrated vehicle). This has been called the Demonstrator Misrepresentation. 10 Generally speaking, the case is that the Tribunal Member failed to either address or fully address the matters of the misrepresentations.

11 Before proceeding further, I should comment that it was common ground that the matter of the Demonstrator Misrepresentation was not raised in the pleading process that took place before the Tribunal. However, it is also common ground that the matter was ventilated by both parties in written submissions made to the Tribunal. 12 It is said on behalf of the Plaintiff that the Tribunal Member dealt with the 2002 Model Misrepresentation to the extent of determining whether or not the representation was true or untrue. However, the Plaintiff contends that the Tribunal did not proceed to deal with a further question (whether or not the Plaintiff's incorrect assumption as to the intended meaning of the representation was objectively reasonable). It was argued that the Tribunal Member should have considered whether a reasonable objective consumer in the position of the Plaintiff would have held the belief that the description "2002 Model" did not mean that the vehicle was built in 2002. 13 The reasons for decision is a lengthy document (it extends to 19 pages). It is divided into various sub-headings. 14 Under the heading "The Application", the Tribunal Member set out what he considered to be the reasons for the application. 15 At page 5 of the reasons, the Tribunal Member recited that the word "demo" had been placed on the face of the Contract. However, it is common ground that thereafter there is no express dealing with the matter of this alleged Demonstrator Misrepresentation. 16 Under the heading of "Preliminaries", the Tribunal Member made the following observations: "Aside from the various legal submissions that were made, it is abundantly clear (and has been so throughout the hearing of the application), that this matter critically turns upon the facts. Once they have been established, the applicable law and range of orders available becomes clear. Essentially, it appears to me that the applicant must establish as a matter of fact that he stipulated a specific build year as a condition of his agreement and that this was not provided to him by misrepresentation or otherwise on the part of the respondent. Alternatively, the applicant must prove as a matter of fact that the respondent made or volunteered a material misrepresentation upon which the applicant relied and which induced him to enter into the transaction. The onus of establishing the necessary facts to the prerequisite level (being on the balance of probabilities) rests with the applicant, Mr Gavin." 17 Thereafter, an identification was made of the evidence relied on by each party. 18 Structurally, this was followed by "the findings and decision". 19 The Tribunal Member found that the Plaintiff was not an impressive witness and that there was a lack of concentration. He found that by contrast Mr Carrington's evidence was relatively clear and was not shaken notwithstanding vigorous cross-examination. 20 It was found that Mr Carrington had said to the Plaintiff that it was a 2002 model. The written reasons record that there was no dispute that the vehicle was in fact a 2002 model whilst the Plaintiff contends that this was the case, but any error on this matter is of no significance. It was found that the Plaintiff held an erroneous view that the model date and the "built date" were one and the same. The conclusion was reached that there was no positive misrepresentation on the part of the Defendant in what was said by Mr Carrington. The observation was made that the Tribunal Member was not at all satisfied that the Plaintiff had actually specified that the vehicle he wished to purchase must be built in 2002. 21 The written reasons contain inter alia the following:- "In my view, the applicant's conduct is not inconsistent with a person who has no understanding or build date [sic], relying upon his own assumptions about the build date such that he does not need to specify the build date and therefore does not specify it specifically.

… There is no misrepresentation by omission on the part of the respondent as I have not found that the applicant stipulated that the vehicle must be built in 2002. I do not find that the respondent misrepresented the vehicle as being built in 2002, and therefore find no misrepresentation on the part of the respondent." 22 The Tribunal Member then dealt with the matter of the circumstances surrounding the making of the written agreement and the conduct of the Defendant. Whilst the practices of the Defendant were not approved, it was found that the Plaintiff was bound by the agreement (even though he did not read it at the time of execution). 23 The "findings and decision" conclude with the following paragraph: "In the absence of acceptable evidence in the applicant's case as to the essential matters to be proved and the lack of any culpable evidence elicited from the respondent in this regard, I find that this application must fail." 24 The effect of the findings was that the Plaintiff's evidence was not accepted and that his allegations were rejected. The alleged stipulation was not found to have been made. The alleged misrepresentation as to date of manufacture by Mr Carrington was also found not to have been made. Similarly, the demonstrator misrepresentation was also implicitly found not to have been made. The Tribunal Member considered the Plaintiff should have read the contract which was binding on him. There was a further finding of no reliance by the Plaintiff. The totality of the case that was then before the Tribunal Member was rejected. 25 The Plaintiff bears the onus of demonstrating an entitlement to relief (whether it be error in deciding a question with respect to a matter of law, denial of procedural fairness or otherwise). It needs to be shown that error justifies the disturbing of the decision. In my view, the Plaintiff has failed to discharge that onus. 26 The analysis made by the Tribunal Member led him to the conclusion that there was no misrepresentation and/or no reliance. Upon having reached that conclusion, there was no need for him to consider any other matters. The Plaintiff's case had failed because of findings of fact. 27 The submissions now made by the Plaintiff need to be considered in the light of his complaint, the evidence and the case conducted before the Tribunal. 28 Before the Tribunal, it was not a case in which it was alleged that a misrepresentation that the car was a 2002 model led him to assume that it was also built or manufactured in 2002. His case was that he stipulated that it must be a car built in 2002 and/or that Mr Carrington had misrepresented that it was built in that year. The evidence led by him on these matters was not accepted and led to the finding of no misrepresentation. 29 In these proceedings, the Plaintiff is endeavouring to put at least in part a new and different case. In my view, he should not be allowed to do so. It was not what was ventilated before the Tribunal Member and as a consequence he had no need to deal with that part of it. 30 The proceedings are dismissed. The Plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.