1. The applicant applied to VCAT seeking a remedy under the Australian Consumer Law and Fair Trading Act 2012 (Vic) which incorporates the text of Schedule 2 of the Competition and Consumer Act 2010 (Cth) referred to as the Australian Consumer Law (Vic) ('the ACL Vic').
2. I heard the application on 7 and 8 April 2025, reserved my decision and made orders for the filing of written submissions by the parties, the last of which was filed on 14 May 2025 by the applicant.
3. The VCAT application states that the applicant purchased a used Land Rover Sport 2016 TDV ('the Vehicle') privately in December 2021 which is confirmed at paragraph 3 of her Points of Claim dated 9 April 2024. The respondent is the deemed manufacturer of the vehicle pursuant to s.7(3) of the ACL Vic.
4. The Vehicle suffered a major engine failure in July 2022 as confirmed in an email from Brighton Jaguar Land Rover dated 8 September 2022.
5. The applicant seeks an order for damages against the respondent as follows:

1. The claims made by the applicant against the respondent in her Points of Claim (as drafted by her then legal representatives) are that the respondent engaged in misleading or deceptive conduct in contravention of s.18 of the ACL Vic and unconscionable conduct in contravention of s.21 of the ACL Vic. The Points of Claim do not mention the guarantee of acceptable quality provided in s.54 of the ACL Vic although the VCAT application, drafted by the applicant herself, under the heading "Problem" states "Faulty, Not acceptable quality". The Points of Claim also do not make any claims under ss.271 and 272 of the ACL Vic other than the undisputed claim that the respondent is the deemed manufacturer of the Vehicle.
2. At the commencement of the hearing on 7 April 2025, I sought confirmation from the applicant, who was now self-represented, that the grounds of her claim were those set out in her Points of Claim being ss.18 and 21 of the ACL Vic only and said that I would consider an adjournment if she wanted to seek further legal advice. The applicant confirmed that those were the only grounds that she was relying upon for her claim and did not seek an adjournment so the hearing proceeding on that basis.
3. Subsequently, the applicant's written submissions dated 15 April 2025 and 14 May 2025 attempt to advance the acceptable quality guarantee provided in s.54 of the ACL Vic.
4. The respondent submitted that the Tribunal is required to decide the case within the framework of the applicant's case as pleaded and provided authorities in support.[1]
5. Whilst VCAT is not a Court of pleadings and so is not bound by the rules of pleadings, s.97 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') requires VCAT to act fairly and in accordance with the substantial merits of the case.
6. An important element of fairness and natural justice, the rules of which bind the Tribunal[2], is that the claims made against a respondent in any case should be made clear to them so that they have the opportunity in the hearing to defend those claims. The applicant did not raise any claims specifically in relation to s.54 of the ACL Vic in the hearing even after being given the opportunity to do so.
7. As to the merits of the case regarding s.54 of the ACL Vic, the applicant's own evidence (also confirmed in her application and Points of Claim) was that the Vehicle was purchased privately meaning that the Vehicle was not purchased from a second-hand car dealership or the like. Therefore, as the guarantee of acceptable quality in s.54 of the ACL Vic only applies "If: ... a person supplies, in trade or commerce, goods to a consumer ..."[3] then, as the Vehicle was not purchased from a person carrying on a used car sales business or the like, the guarantee as to acceptable quality in s.54 of the ACL Vic does not apply to the purchase of the Vehicle because it was not supplied to the applicant in trade of commerce.[4]
8. As a result, taking into account fairness between the parties and the substantial merits of the applicant's claim in relation to s.54 of the ACL Vic, for the reasons provided above I will not be entertaining any claims made or attempted to be made by the applicant against the respondent under s.54 of the ACL Vic in this decision or any other claim attempted to be made by the applicant not contained in her Points of Claim.

1. The applicant alleges that in or around July 2017, the respondent issued a Service Compliance Notification (JLRP00100) ('SCN') to its authorised dealers and repairers regarding oil dilution affecting 2016 and 2017 model year Land Rover vehicles which applied to the Vehicle.
2. The applicant says that the SCN identified the following issues relating to oil dilution in relation to the Vehicle:

(a) A customer may experience the 'Service Required' message before the nominated service interval stated in the respondent's brochures or marketing material due to oil dilution.

(b) The 'Service Required' message (which should be displayed on the instrument cluster when a service interval is approaching) is not visible when the engine cranking commences from ignition off.

(c) Continued vehicle operation with high oil dilution (fuel in oil) will result in engine failure.

(d) The cause of the oil dilution was caused by a higher-than-expected number of partial Diesel Particulate Filter (DPF) cycles.

(e) The duration / distance required to complete a full regeneration of the 3.0l Range Rover Sport is such that there is an increased likelihood of an interrupted (or partial) regeneration when a customer ends their journey.

(f) The amount of post injection of diesel required to achieve a similar burn rate to achieve regeneration of the DPF is much higher on the 3.0l Range Rover Sport.

(g) This combines to significantly increase the fuel in oil contribution for each successive regeneration event, with fuel in oil (oil dilution) increasing at a much higher rate on affected Land Rover models.

(h) Oil dilution at 6.1% will trigger the 'Service Required' message which may be reached in advance of the service interval quoted for the vehicle.

1. The applicant alleges that the respondent's failure to release or disclose to the public the SCN or the matters contained therein or to undertake a voluntary recall of all affected vehicles in Australia amounted to conduct engaged in by the respondent that was misleading or deceptive or likely to mislead or deceive in contravention of s.18 of the ACL Vic.
2. Further or in the alternative, the applicant alleges the respondent engaged in conduct that was in connection with the supply of the vehicle that was unconscionable in contravention of s.21 of the ACL Vic in that:

(a) Engine failure poses a safety risk to occupants of the vehicle and other road users.

(b) The respondent knew, or ought to have known that there was a significant risk of engine failure arising from excessive oil dilution associated with its vehicle's DPF regeneration processes.

(c) The respondent knew, or ought to have known that the 'Service Required' warning message did not display in a vehicle's instrument cluster upon the engine being cranked from ignition off.

(d) The respondent chose to only inform its authorised repairers of the issues relating to excessive oil dilution set out in paragraph 14 above, being a known fault with its vehicles.

(e) The respondent knew, or ought to have known that vehicles it imported and distributed were also traded in a second-hand market, including a private second-hand market for its vehicles.

(f) The respondent did not inform or otherwise warn affected owners or potential buyers of a known fault with its vehicles or the associated risk of engine failure arising from excessive oil dilution associated with its vehicle's DPF regeneration processes.

(g) The respondent did not undertake a voluntary recall campaign in respect of its affected vehicles.

(h) The failure to inform or otherwise warn affected owners was not necessary for the protection of the respondent's legitimate commercial interests.

(i) The failure to undertake a voluntary recall of affected vehicles was not necessary for the protection of the respondent's legitimate commercial interests.

(j) There is a significant cost to affected customers associated with the purchase and installation of a new replacement OEM engine, which can only be purchased from the respondent through one of its authorised repairers or dealers.

(k) In the premises, affected owners and potential buyers are in a position of vulnerability as compared to the respondent.

1. The applicant says that at no time prior to the engine failure did she observe a 'Service Required' message on her vehicle's instrument cluster warning her of an issue with the Vehicle and that, had she known about the matters set out in the SCN, she would not have purchased the Vehicle.

1. The respondent does not dispute the contents of the SCN as stated by the applicant but says that the SCN also stated that the 'Service Required' message can still be correctly revealed by turning on the ignition only by pressing the start/stop button without the brake pedal depressed or in the 'In Control Remote' application that may have been activated on a customer's mobile device.
2. Further, the respondent says:

(a) there was a campaign N020, to correct the instrument cluster software to enable the "Service Required" message to display when the engine was cranked from off;

(b) following completion of campaign N020, an oil and filter change could be completed as part of the campaign repair;

(c) the marketing brochures and internet sites have been updated from 1 June 2017 to set further customer expectation that service intervals depend on driving style and usage;

(d) the customer will be expected to bring their vehicle into a retailer once the 'Service Required' message is displayed on the instrument cluster or 'In Control Remote' application; and

(e) that on or about 27 August 2018, the campaign N020 was completed on the Vehicle by ULR Land Rover.

1. The respondent agrees that neither the SCN, nor the matters contained therein, were released or otherwise disclosed to the public as it says it was not required to do so but it was released to authorised Land Rover dealers and repairers and that matters in the SCN were not the subject of a voluntary recall of affected vehicles in Australia as that was not required under s.128 of the ACL Vic. Further, the respondent says that, as the actions set out in the SCN had been completed by the previous owner of the Vehicle at ULR Land Rover, the SCN was not relevant to the applicant's operation of the Vehicle.
2. The respondent denies that it engaged in conduct that is misleading or deceptive or is likely to mislead or deceive, or that it engaged in conduct that is unconscionable and says that it is not reasonable for the applicant to allege that it is the respondent's duty to ensure that all future purchasers of the affected vehicle models listed in the SCN were made aware of the required campaigns and software updates to be completed on the vehicles, notwithstanding that these action items were completed on the applicant's Vehicle prior to her purchasing the Vehicle in December 2021.

1. The applicant's expert witness, Robert Chapman, provided a report dated 10 March 2024 stating that the engine failure was a direct result of diesel fuel dilution of the engine oil and that the most common cause of engine oil dilution in the Vehicle is diesel fuel being introduced into the engine during DPF regeneration which is a normal manufacturer design function of operation for the Vehicle and a certain percentage of oil dilution is accepted by the manufacturer. However, in the applicant's case, excessive quantities of fuel have been injected into the Vehicle's engine and that has caused the "massive" dilution of the engine oil and consequential damage as a result of the engine oil losing viscosity to a point whereby the oil no longer maintained a separation of the internal engine components during normal operation of the Vehicle. It was Mr Chapman's opinion that the applicant did not contribute to the cause the failure of the engine.
2. The respondent's expert witness, David Marston, provided a report dated 13 August 2024 stating that he agreed diesel fuel can cause dilution of the engine oil but disagreed that excessive quantities of diesel fuel can be caused by the DPF regeneration process if the owner follows the manufacturer's scheduled service intervals, along with any service messages presented to the owner on the vehicle's instrument cluster.
3. Both experts agree that the Vehicle's engine oil was diluted by fuel above the 6.1% threshold whereby the "Service Required" message is meant to be displayed to the driver on the instrument cluster on vehicle start up. Mr Chapman's report suggested the oil dilution factor was 12.1% and the respondent's computer report presented a fuel dilution of 22%.
4. Mr Marston concluded that the applicant has not followed the manufacturer's scheduled service intervals or taken action whenever the service message on the instrument cluster illuminated. Mr Chapman's report says that the applicant and previous owner of the Vehicle have followed the manufacturer's recommended service intervals and had never missed a service.
5. The manufacturer's recommended service intervals for the Vehicle are every 12 months or 26,000 kms whichever of the two occurs first. Looking at the evidence presented by both parties and summarised by Mr Marston in timeline graph at appendix 5 of his report, it is objectively clear that the Vehicle has not strictly complied with the manufacturer's recommended service schedule with the table showing that the Vehicle completely missed two manufacturer's scheduled services at 12 months and 24 months, with partial services only carried out and multiple services being overdue or past the manufacturer's scheduled service intervals. This was set out by Mr Marston in the below timeline graph which I accept is an accurate depiction of the respondent's recommended services intervals compared with when and how the Vehicle was actually serviced:

1. Regardless, I consider Mr Marston's opinion, being that it was the lack of manufacturer's scheduled services (missed or partial) that caused the engine failure, to be speculative. This is because Mr Marston's evidence was essentially that, when a vehicle does not follow the manufacturer's recommended service schedule, incremental damage may be caused to a vehicle's engine which, overtime, may result in the type of engine failure suffered by the Vehicle. Whilst I do not doubt Mr Marston's evidence to be generally true in the usual course of events, there was no specificity in his evidence about any other damage that was actually caused by any of the missed or partial recommended services between 2016 and 2021 apart from the actual engine failure itself.
2. Although the author of the email from Ritter to the applicant dated 8 April 2025, Mr Andrew Kovach, did not appear at the hearing to have his evidence tested, I am prepared to accept that his statement in the email that "At your last visit [being the service on 14 October 2021], we didn't note any issues with your vehicle" would not have changed had he appeared to give evidence and adds support to the applicant's position that the engine failure was not caused by any failure to comply with the respondent's recommended service intervals.
3. In the light of the above and the agreed facts that the Vehicle's engine oil was diluted by fuel well above the 6.1% threshold whereby the "Service Required" message is meant to be displayed to the driver on the instrument cluster on vehicle start up, I am content to find that the cause of the Vehicle's engine failure was, more likely than not, that the engine oil was excessively diluted with diesel fuel as a result of a number of interrupted or partial DPF regeneration processes which occurred as a result of the Vehicle, after being purchased by the applicant, ending some of its trips before the DPF regeneration process had been completed.

1. The applicant's evidence and the evidence of her ex-partner, Mr N Sbaiti, was that the "Service Required" message never appeared on the instrument cluster. The applicant also gave evidence that she was not told by staff at the respondent's show room that the "Service Required" message can come on as a result of oil dilution and, under cross-examination said that, during ignition, a lot of lights come on and then go away. The evidence of Mr Andrew Flemming, being the respondent's National Technical and Warranty Manager, was that the N020 campaign was completed on the Vehicle on 9 August 2018, as supported by the claim document sent to the respondent by the dealer who carried out the N020 campaign on the Vehicle and their handwritten record of the works which states "CARRY OUT N020".
2. Mr Flemming's also gave evidence that the respondent keeps a database record of all works done which can be accessed when the Vehicle is plugged into the respondent's diagnostic system and that a full list of works carried out on the Vehicle was obtained on 15 July 2024 which showed the word "TRUE" next to the Service Display category. Mr Flemming's evidence was that this meant the N020 campaign had been completed on the Vehicle and that the "Service Required" message was being displayed and working as intended.
3. When asked why the "Service Required" message was not shown in any photographs of the instrument cluster, Mr Flemming answered that it may have been cleared and explained that the when the "Service Required" message comes up, which is triggered by high oil dilution which can result from short trips, it can only be cleared by someone pressing "OK" and that, otherwise, it will not clear in its own.
4. Under cross-examination, Mr Flemming confirmed the reason for the N020 campaign was that the "Service Required" message was not coming on as intended and that this was a software failure and not an engine failure and that, if the "Service Required" message didn't come on then the Vehicle's owner wouldn't know that oil dilution was excessive. Mr Flemming also re-stated his evidence that the respondent's database shows that the "Service Required" message was working, that you have to press "OK" to clear it but added that the "Service Required" message may also time out.
5. Relevantly, Mr Marston's unchallenged evidence was that had the N020 software update not worked, the computer would say so and there was never any message to say it wasn't working. Mr Marston's opinion therefore was that the "Service Required" light must have been working and that it would have come on after every engine start after the engine oil dilution reached 6.1%.
6. The applicant carries the burden of proof which in a civil claim is on the balance of probabilities. The applicant did not obtain any expert witness evidence, such as from an automotive computer diagnostics technician or the like, to support her claim that the "Service Required" message was not being displayed on every startup after the Vehicle's engine oil dilution had reached 6.1%. Neither of the parties' expert witnesses reported witnessing the "Service Required" message come on or not during their investigations into the cause of the engine failure.
7. Mr Marston took a photograph of the instrument cluster during his inspection of the Vehicle on 15 July 2024 which did not show the "Service Required" message being on however, at this point, the engine had been partially disassembled for testing and his report does not say that the engine was turned on only that the battery was charged so as to allow him to access the Vehicle's computer which revealed there were no past or present fault codes indicating that the Vehicle had any electrical or electronic faults.
8. The Vehicle's engine failed in July 2022. The applicant's evidence under-cross examination was that the Vehicle could still be driven before being disassembled in July 2024. Nevertheless, the applicant did not put into evidence any photographs of the instrument cluster between the date of the engine failure in July 2022 and the date the Vehicle's engine was disassembled in July 2024.
9. The applicant and Mr Sbaiti are not independent witnesses and their evidence that the "Service Required" message never came on is, by its nature, self-serving. Therefore, in the light of the diagnostic evidence presented by the respondent to the effect that the "Service Required" message was being displayed and working as intended, in order to discharge the burden of proof in relation to her claim that the "Service Required" message never came on, the applicant, in my view, required, in the absence of photographic or video evidence, her own diagnostic computer evidence or other such evidence in order to discharge the burden of proof. No such evidence was presented by the applicant. As a result, I am led to conclude that the applicant has failed to prove on the balance of probabilities, that the "Service Required" message never came on.
10. Nevertheless, nothing turns on this for the applicant because, even if the applicant was correct in that the "Service Required" message never came on, there is no evidence that the respondent was aware of this alleged problem after the N020 campaign was completed on the Vehicle and so this aspect of the applicant's claim could only be relevant in relation to the acceptable quality guarantee under s.54 of the ACL Vic which, for the reasons provided above, does not apply in the applicant's circumstances and cannot be agitated by the applicant in this proceeding.
11. Additionally, the applicant did not allege in her Points of Claim, or anywhere else, that the respondent engaged in misleading or deceptive conduct or unconscionable conduct regarding any representation it may have made, including by way of silence, that the N020 campaign was successful and so that is not a question that is before the Tribunal in this proceeding.

Did the respondent engage in misleading or deceptive conduct?

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

1. The applicant says that the respondent has contravened s.18(1) of the ACL Vic by not releasing or otherwise disclosing to the public the SCN and/or the matters contained therein including the risk of engine failure and that, had she known about the SCN including the potential need for extra services, she would not have purchased the Vehicle.
2. The applicant made further post hearing submissions about alleged misleading or deceptive conduct engaged in by the respondent not contained in her Points of Claim including that the respondent failed to disclose the cause of the engine failure, made false claims regarding servicing and oil condition, gave a false sense of luxury, durability and reliability and promoted the Vehicle as suitable for general driving when regular short trips could cause excessive oil dilution.
3. For the same reasons as stated above in relation to the applicant's attempt to agitate a claim under s.54 of the ACL Vic, taking into account fairness between the parties and the substantive merits of the additional claims made by the applicant in her post hearing submissions which amount to broad allegations unsubstantiated by any evidence such as advertising materials, I decline to consider as part of this decision any post hearing allegations or submissions that do not relate to the matters contained in the applicant's Points of Claim. I also note that the allegation that the respondent failed to disclose the cause of the engine failure occurred after the applicant purchased the Vehicle and so could not be relevant to any misleading or deceptive conduct claim.
4. The respondent accepts that, in alleging misleading or deceptive conduct, the applicant is not required to prove that any particular representation was made by the respondent as silence may constitute misleading or deceptive conduct where there is a reasonable expectation that, if some relevant fact exists, it will be disclosed.[5]
5. The respondent submitted that whether a reasonable expectation of disclosure arises depends on all the circumstances.[6]
6. The applicant submitted that there was a reasonable expectation of disclosure in relation to the SCN and N020 Campaign as it related directly to a critical warning system being the failure of the "Service Required" message to come on when the engine cranking commences from ignition off and because the SCN confirms the possibility of engine failure and increased service requirements.
7. The respondent submitted that the applicant failed to establish any legal basis for asserting that there existed a reasonable expectation to disclose the matters set out in the SCN such as:

(a) where law or equity impose a duty of disclosure;

(b) where a statement conveying a half-truth only is made;

(c) where the representor has undertaken a duty to advise;

(d) where a representation, although correct at the time it was made, has a continuing effect and has subsequently become incorrect; and

(e) where the representor has made an implied representation.[7]

1. The respondent further submitted that as the matters in the SCN were not related to any mandatory or safety recall like the Takata Airbag recall and that as the N020 Campaign, which had been completed on the Vehicle on or about 27 August 2018, was a non-urgent software update that enhanced the driver's ability to appropriately maintain the Vehicle and understand when it required servicing, there was no reasonable expectation of disclosure and consequently no duty on the respondent to disclose the matters in the SCN.
2. The applicant submitted that the respondent was currently the subject of a class action for similar issues to the applicant's claims. Regardless, whether or not that is precisely the case, the class action has not, as of the date of this decision, reached an outcome and so currently has no legal effect on applicant's VCAT proceeding.
3. The applicant submitted five authorities in support of her allegation that the respondent engaged in misleading or deceptive conduct but the authorities submitted were either AI hallucinations (the applicant confirmed she used AI to source authorities) or not related to any claims made or attempted to be made by the applicant, concerned claims made under s.54 of the ACL Vic or the equivalent or otherwise were in relation to misleading or deceptive conduct regarding the emissions levels of certain diesel vehicles or misleading consumers as to their statutory refund rights.[8] None of the authorities submitted by the applicant related to the claim of misleading or deceptive conduct by way of silence and so are not relevant and are of no assistance to the applicant's claim of misleading or deceptive conduct by way of silence in this proceeding.

1. I accept the respondent's submission that the applicant has not established any legal basis for asserting that there existed a reasonable expectation of disclosure regarding the matters set out in the SCN taking into account the examples of when a legal basis for disclosure arises as set out at paragraph 49 above. In other words, I am satisfied that none of the examples set out at paragraph 49 above apply in the applicant's circumstances.
2. In relation to the applicant's submissions, I accept that, if the Vehicle had known manufacturing faults or other problems that could not be fixed or, at least, alleviated satisfactorily, then a duty to disclose the matters in the SCN may be enlivened, especially if vehicle safety was at issue.
3. I also accept the submission of the respondent that, relevantly, the main purpose of the SCN was to complete the N020 campaign which was a non-urgent software update required to resolve the problem of the "Service Required" message not coming on when the engine was cranked from off which was completed on the Vehicle on or about 27 August 2018 which was before the applicant purchased the Vehicle.
4. As a result, in relation to the N020 campaign, taking into account all the relevant circumstances, I accept the submission of the respondent that there was no reasonable expectation of disclosure and consequently no duty on the respondent to disclose the N020 campaign to the public because, given it was a non-urgent software update and that the number of people requiring disclosure could be countless, it would be unreasonable for all future purchasers and potential purchasers of affected vehicles to expect to be made aware of the N020 campaign regardless of whether the campaign had been completed or not on any particular vehicle. Notwithstanding the unchallenged evidence of Mr Flemming that a potential purchaser of an affected vehicle can type in the vehicle's VIN on the respondent's website to see what, if any, campaigns have been carried out or are pending on the relevant vehicle.
5. According to the applicant, the SCN also relevantly stated that:

(a) A customer may experience the 'Service Required' message before the nominated service interval stated in the respondent's brochures or marketing material due to oil dilution.

(b) ...

(c) Continued vehicle operation with high oil dilution (fuel in oil) will result in engine failure.

(d) The cause of the oil dilution was caused by a higher-than-expected number of partial DPF cycles.

(e) The duration / distance required to complete a full regeneration of the 3.0l Range Rover Sport is such that there is an increased likelihood of an interrupted (or partial) regeneration when a customer ends their journey.

(f) The amount of post injection of diesel required to achieve a similar burn rate to achieve regeneration of the DPF is much higher on the 3.0l Range Rover Sport.

(g) This combines to significantly increase the fuel in oil contribution for each successive regeneration event, with fuel in oil (oil dilution) increasing at a much higher rate on affected Land Rover models.

(h) Oil dilution at 6.1% will trigger the 'Service Required' message which may be reached in advance of the service interval quoted for the vehicle.

1. Mr Flemming's evidence was that there have not been any global bulletins sent out by the respondent regarding any engine problems with the Vehicle.
2. The parties' expert witnesses both agree that engine oil dilution is a "normal" or "standard" manufacturer design function of operation for the Vehicle where extra diesel fuel is injected into the engine to aid the DPF regeneration process.
3. On further inspection of the SCN, it explains, under the heading "Early Service due to Oil Dilution" the reason why the 'Service Required' message may come on before the respondent's nominated service intervals as being:

Due to hardware and architectural differences between model lines, the amount of post injection [distance] required to achieve a similar burn rate is much higher on ... [the Vehicle] ... in comparison to... [other model lines] ... increasing the likelihood of an interrupted regeneration when a customer ends their journey.

Combined with the increased post injection [distance] requirement and increased impact of interrupted regeneration on oil dilution FIO [fuel in oil] increases at a much higher rate on ... [the Vehicle].

Oil dilution of 6.1% will trigger the Service Required message. Based on a customer's driving style and usage this value may be reached in advance of the service interval that was quoted in the online marketing and brochure for [the Vehicle]... [being]... 26k km/12 months.

The Handbook states that, depending on the type and style of driving that the Vehicle is subjected to, the indicator may display a service message at a shorter distance than shown in the service interval plans. This clause was never stated in any of the marketing literature so early service requirements may lead to customer dissatisfaction.

1. The SCN relevantly goes on to state under the heading "Actions Required" that:

Marketing brochure and internet sites have been updated from 1st June 2017 to set future customer expectation that service intervals will depend on driving style and usage.

1. Considering the SCN as a whole, I find it to be a very factual and to the point document warning of potential engine failure due to excess oil dilution and customer dissatisfaction as a result of possible increased service requirements. No where in the SCN does it mention anything about a manufacturing fault or any safety concerns.
2. What is clear in the SCN is that, at some point prior to the SCN being sent to its authorised repairers in July 2017, the respondent became aware that the Vehicle might not be performing as expected because, depending on the type and style of driving the Vehicle is subjected to, fuel in oil is likely to increase at a much faster rate than expected with the result being an increase in the number of services or, more precisely, oil changes that the Vehicle may require as compared to the manufacturer recommended service intervals of 26,000 kms or 12 months.
3. Whether or not this requirement for extra oil changes is as a result of a manufacturing fault or not, I do not need to find because, either way, I would not be satisfied that the duty to disclose is enlivened because the Vehicle might need to undergo additional oil changes depending on driver type and style which according to the Australian Land Rover Owners website cost on average between $300-$400 per oil change.
4. In other words, I am satisfied that because the "Service Required" message appears earlier than the respondent's recommended service intervals if the Vehicle's oil dilution reaches 6.1%, the issue of fuel in oil likely increasing at a much faster rate than expected for the Vehicle is satisfactorily alleviated by the possible need for extra oil changes beyond the Vehicle's recommended service intervals.
5. As a result, taking into account all the relevant circumstances, including that there are no safety concerns regarding the SCN, I accept the submission of the respondent that there was no reasonable expectation of disclosure and consequently no duty on the respondent to disclose the contents of the SCN to the public because, given the end result is that the Vehicle may require additional oil changes and that the number of people requiring disclosure could be countless, it would be unreasonable for all future purchasers and potential purchasers of affected vehicles to expect to be made aware of the contents of the SCN.
6. The applicant submitted that the possibility of engine failure due to excessive oil dilution relates to the safety of the Vehicle. Whilst I accept that this may be true, the possibility of engine failure only arises if the "Service Required" message fails or is ignored and, as discussed above, the applicant has failed to prove that the "Service Required" message was not being displayed as intended by the respondent.
7. Therefore, for the reasons stated above, I find that the respondent has not contravened s.18(1) of the ACL Vic.

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person; ...

...

engage in conduct that is, in all the circumstances, unconscionable.

1. The applicant says the respondent engaged in unconscionable conduct for the reasons set out at paragraph 17 above and supplied the authority of ACCC v Quantum Housing Group Pty Ltd in support of her submissions.[9]
2. The respondent submitted that unconscionable conduct is conduct that is not in good conscience, irreconcilable with what is right and reasonable or so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience.[10]
3. The respondent also submitted that, as the applicant alleges that the respondent engaged in unconscionable conduct by failing to disclose the N020 campaign and the other matters set out in the SCN, if the respondent is not found to have engaged in misleading or deceptive conduct in contravention of s.18(1) of the ACL Vic, then there can be no basis for asserting that the respondent acted unconscionably and so the claim of unconscionable conduct in contravention of s.21(1) of the ACL Vic must also fail.
4. The authority of ACCC v Quantum Housing Group Pty Ltd does not assist the applicant as it relates to a successful appeal of the primary judge's finding that for unconscionable conduct to be made out under s.21(1) of the ACL, there needs to be exploitation of a special disadvantage in circumstances where the respondent admitted to unconscionable conduct by a system or pattern of behaviour and where the primary judge also found that s.18(1) of the ACL had also been contravened.[11] The system or pattern of behaviour related to the issuing of rounds of misleading correspondence to investors designed to interfere with the contractual relationships between the investors and their property managers by unduly pressuring investors to terminate their relationships with their property managers and change to a property manager approved by [the respondent].[12]
5. Given that all the claims made by the applicant against the respondent in relation to alleged unconscionable conduct as set out at paragraph 17 above stem from the primary allegation that the respondent did not disclose the N020 campaign and the other matters contained in the SCN to all purchasers and potential purchasers of the affected vehicles, it naturally follows that, if the respondent did not have a duty to disclose those matters, then the respondent cannot be found to have engaged in unconscionable conduct.
6. In other words, if the respondent did not have a duty to disclose the N020 campaign and the other matters contained in the SCN to the public, which I have found it did not, then it can not be said that, by not disclosing those matters to the public, the respondent engaged in conduct that is not in good conscience, irreconcilable with what is right and reasonable or is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience.
7. Therefore, I am led to conclude that the respondent has not contravened s.21(1) of the ACL Vic by not disclosing to the public the N020 campaign or the other matters contained in the SCN.
8. As a result of the above, I do not need to consider ss.21(3) and (4) and 22 of the ACL Vic which relate mainly to factors that VCAT may have regard to for the purposes of determining whether a person has contravened s.21(1) of the ACL Vic.
9. The applicant stated many times in her evidence and submissions that, had she known of the N020 campaign and the other matters in the SCN, she would not have purchased the Vehicle. Whilst I have no reason to disbelieve these statements by the applicant, notwithstanding the respondent's evidence that there is relevant information available on its website about the Vehicle, because I have found that the respondent has not contravened ss.18(1) and 21(1) of the ACL Vic by its conduct, the question of whether the applicant relied on the respondent's failure to disclose the contents of the SCN or whether its conduct caused the applicant's loss ceases to be relevant in the absence of any contravention by the respondent and so I need not make any findings about this aspect of the applicant's claim.
10. For the reasons provided, I will order that the application is dismissed and, as the respondent did not seek any costs in its Points of Defence or written submissions, there will be no orders as to costs.

[1] Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Limited [2008] NSWCA 206 [424]; Thomas v Panourakis [2014] VSC 398 [75], [95]; and s 97 of the Victorian Civil and Administrative Tribunal Act 1998.

[3] See ss.2(1) and 54(1)(a) of the ACL (Vic).

[4] See for example Williams v Pisano [2015] NSWCA 177.

[5] See for example Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31 [40]- [41] (Gummow J), Butcher v Lachlan Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592,623 [103] (McHugh J).

[6] Barport Pty Ltd v Baum [2019] VSCA 167, [195] (Kyrou, McLeish and Niall JJA).

[8] Paterson v Ford [2015] FCA 752, Capic v Ford [2016] FCA 924, ACCC v Audi AG [2019] FCA 1009, ACCC v Jayco [2016] FCA 1064 and Medtel Pty Ltd v Courtney [2003] FCAFC 151.

[9] [2021] FCAFC 40.

[10] ASIC v Kobelt [2019] HCA 18; 267 CLR 1, [92] (Gageler J).

[11] ACCC v Quantum Housing Group Pty Ltd [2021] FCAFC 40 [1-9].