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.