Lyon v Frenbray Pty Ltd

Background

1. The respondent, which trades under the name "Private Fleet", did not appear at the Tribunal hearing, nor did it lodge with the Tribunal and serve on the appellant any evidence upon which it intended to rely at the Tribunal hearing.
2. On this appeal the respondent did not suggest its non-appearance at the hearing before the Tribunal and the absence of prior lodgement and service of any evidence upon which it wished to rely was due to misadventure, or because it was not notified of the hearing date, or for any other reason other than its voluntary decisions not to lodge and serve evidence and not to appear at the Tribunal hearing.
3. The facts below are taken from the appellant's evidence tendered to, and factual findings made by, the Tribunal. We shall refer to various conclusions made by the Tribunal and various observations of our own during this recitation of facts where to do so would assist the understanding of this case.
4. In early 2021 the appellant owned a 2011 model Volkswagen Tiguan TSI motor vehicle which had travelled about 145,500 km at the time of the events which gave rise to these proceedings. The original motor in that vehicle had been replaced by the appellant shortly before the purchase of the new vehicle with a used motor that was taken from another vehicle which had travelled about 60,000 km.
5. The appellant decided to purchase a new MG ZST Essence SUV motor vehicle and to trade-in his Volkswagen.
6. The appellant tendered printouts of the respondent's website. Those printouts contained various representations. We infer the Tribunal accepted those printouts as accurately representing the website at the time of the events under discussion.
7. The respondent's website (as revealed by the printouts) contained the following representations: 1. "We ensure that you get the car of your choice at a fleet sales price better than you would ever believe. We even guarantee it." 2. "(Y)ou get the fleet pricing …" 3. "We're able to leverage our vehicle buying power to secure fleet buyers discounts off any new make and model of motor vehicle …" 4. "Private Fleet - all the fleet benefits for the private buyer." 5. "Holding a full motor dealer's license, Private Fleet acts as a motor broker using its buying power and dealer relationships to save private buyers up to 25% off the price of new cars." 6. "All prices quoted include dealer delivery, stamp duty, CTP and registration as well as any other on-road costs." 7. "As a client you pay the dealer directly the agreed price and the dealer pays us a referral fee."
8. After reading (at least) representations (1) and (4) in the list in [11] above, the appellant approached the respondent through his father, Paul Lyon. Paul Lyon's evidence was given by way of statutory declaration and was as follows: "My son, Michael Lyon, having busy work commitments, had me contact the defendant, a car broker to purchase a motor vehicle on his behalf. I advised them he had been offered the required vehicle on road for $31,000. The defendant advertised on line and represented orally "We ensure you get the car of your choice at fleet sales price ... we even guarantee it' Private fleet ... provide "all fleet benefits for the buyer" Private fleet advised that after trade it could provide a car on road at fleet sales price for $29,191 less trade in. This offer was accepted. This was confirmed by the car dealer. The final trade in price would be advised after receipt of the vehicle as per the contract."
9. This testimonial evidence was supplemented by a chronology of events (headed "Commentary") cross-referenced to a bundle of paginated documents which were tendered in evidence. The Tribunal did not list this chronology as a document tendered in evidence in its reasons, but it is apparent from the Tribunal's express reference to various dates and other matters mentioned in the chronology and which have no other source that the Tribunal must have had this document before it, and accepted it as evidence in the proceedings.
10. The appellant himself did not give evidence, in writing or orally, even though he appeared at the Tribunal hearing.
11. The evidence in Paul Lyon's statutory declaration, not referred to in the Tribunal's reasons, is significant in our view. He had told Private Fleet that the appellant had been offered the MG for $31,000 including on-road costs. This sum was without any trade-in. This was obviously the price that Private Fleet had to beat in order to secure the appellant's business.
12. Of the seven written representations referred to at [11] above, two [being (1) and (4)] were expressly referred to in Paul Lyon's statutory declaration. The chronology said that: "Decision to contact Private Fleet is made after being induced by their advertisement of website that states 'We ensure that you get the car of your choice at a fleet sales price better than you would ever believe. We even guarantee it!'" (Emphasis original)
13. The Tribunal did not make any express finding about whether the website had been read before contact was made with the respondent, whether it had been the appellant, his father or both that had read the website, or whether anything the website had said was relied upon, but findings as to the reading of the website and reliance would have flowed from what is quoted above and the respondent did not appear at the hearing to challenge that evidence. It does not seem to matter whether the appellant or his father read the website (if not both of them) as Paul Lyon was acting as his son's agent.
14. If representations (1) and (4) were read, as the evidence established, it seems likely that Paul Lyon, or the appellant, or both, had also read, and relied upon, the remaining five representations because they were on the same website and appear on the same pages as representations (1) and (4).
15. On 5 July 2021, after being contacted by Paul Lyon, an employee of Private Fleet, named Monique, became the "assigned consultant" for the appellant.
16. On 6 July 2021, Monique sent out the tender (to motor vehicle dealers) with the details of the MG sought by the appellant.
17. The Tribunal found that on or about 7 July 2021, Paul Lyon made contact with the respondent and placed a telephone order on behalf of the appellant with the respondent to purchase a new MG motor vehicle. Presumably this was after the respondent had received tenders from supplying dealers and had communicated details of the tenders to the appellant or his father. A deposit of $1,000 was paid to the respondent and a receipt issued.
18. The Tribunal said that "at or about that time" the respondent sent to the appellant a one-page document headed "New Vehicle Purchase Agreement", noting that new MG would be "delivered" by another named dealer (the "supplying dealer").
19. Accompanying that one-page document were a number of documents headed "Client Agreement Form", an "Order Confirmation", a "Trade In Vehicle(s) Evaluation Confirmation", a "Contact Details Form", a "Client Checklist" and "Private Fleet Terms and Conditions". We shall refer to that collection of documents as the New Vehicle Purchase Agreement (or "NVPA").
20. The Order Confirmation confirmed the order and noted the deposit paid.
21. The Trade In Vehicle(s) Evaluation Confirmation contained numerous details about the Volkswagen including such matters as its build plate date, compliance date, engine type, colour, descriptions of dents/marks/scratches and other matters relevant to the value of the vehicle. In the box for "Odometer" the figure of "60,000" had been entered.
22. The Client Details Form contained the names, phone number and email addresses of the appellant, a representative of the respondent and the dealer which was supplying the vehicle.
23. The Client Agreement Form was in the following form (absent the handwriting, highlighting and circling around the word "Trade-in", the redaction is ours): [The image below is the Client Agreement Form. The alternative text for this image is in paragraph 28 of this decision]
24. The Client Agreement Form is presented in text below: "PRIVATE FLEET BUYING ['Paul Lyon' in handwriting] CAR BUYING MADE EASY Client Agreement Form I, Michael Lyon of [Address] NSW 2050 authorise Private Fleet to order the following vehicle(s) on my behalf: Make: 2021 Build M.G. Model: ZST Essence SUV Trim (Colour): Standard Transmission: Automatic Engine: Petrol Body Colour: Pebble Black Retail Price of Vehicle $ 32,990 Accessories Full Tank of Fuel, detailing and delivery to Camperdown Included

[Empty table cells] Total Accessories $ - On Road Costs Pre-Delivery 1,995 GST Included Stamp Duty 936 Registration 381 CTP 440 Plate Fee 110 Sub-Total $ 36,852 Combined Trade-in & Fleet Discount $ 9,161 Total On-Road Cost (Changeover) $ 27,691

Special Condition: Customer to arrange payment to Private Fleet."

1. The Private Fleet Terms and Conditions document contained the following terms: "Unless otherwise stated, Private Fleet, the MTA approved dealer and the client agree to the following. Before taking delivery of the motor vehicle the customer shall pay to Private Fleet the balance of the purchase price being the total on-road cost less any deposit. This must be paid via cleared transfer funds. … If the customer wishes to trade in a vehicle, Private Fleet will provisionally value the trade in vehicle based on the customer's description of it. Subject to the following, the valuation will be valid for 30 days only, after which the trade-in vehicle will need to be re-valued. … Despite the foregoing, the sum to be paid or allowed to the customer for the trade in vehicle will be its actual value (determined by Private Fleet) at the time of delivery of the trade in vehicle to Private Fleet or a wholesale agent nominated by Private Fleet. Variations in value may be caused by errors in description of vehicles (sic) details (including but not limited to the following examples) Build Year, Make, Model, Series, Fuel Type, Transmission, Body Shape, Odometer, External Condition, Interior Condition, Mechanical & Electrical Performance. Please ensure that the description contained within this contract is a true and accurate representation of your vehicle. The customer must pay Private Fleet on demand the cost of repairs not mentioned (quote provided by qualified repairer) or the difference (If any) between the value of the trade in vehicle provisionally determined by Private Fleet and the actual value of the trade in vehicle when delivered to Private Fleet or its nominated wholesale agent. Variations in the actual value up to three thousand dollars will be immediately charged to your nominated credit card where possible. Variations that are greater than three thousand dollars in value will require an EFT transfer to Private Fleet, upon request. … Frenbrey Pty Ltd T/as Private Fleet Is a registered NSW motor broker and motor dealer, Dealer Licence 19913. As per direction from DoFT is to be made clear that only when there is no trade in/part exchange and only when the supplying dealer is paid from the client directly and only after a satisfactory delivery of the new vehicle the supplying dealer will offer an introductory fee or a financial incentive payable to Frenbray Pty Ltd. Important Please read these conditions carefully. These conditions accompany your phone order. Please contact our offices immediately upon receipt of this paperwork if these conditions are outside your expectations and/or requirements." (Italics ours. Bold is original)
2. Three important matters may be immediately noted.
3. First, the NVPA purports to be a tripartite agreement between the appellant, the respondent and an "MTA approved dealer" given the opening words of the Terms and Conditions document, although there is no evidence that the "dealer" ever saw, signed or agreed to the terms of the NVPA.
4. Second, and significantly in this case, the arrangement (to use a neutral expression) reflected in the NVPA was distinctly different to that represented on the respondent's website.
5. The NVPA said that the appellant would pay the purchase price of the new vehicle to the respondent, whereas the respondent's website said that clients would pay the agreed price directly to the supplying dealer and the supplying dealer would pay the respondent a referral fee.
6. In fact, no referral fee was, on the face of the NVPA, payable. The paragraph immediately above the word "Important" at the end of the Terms and Conditions document says that no supplying dealer could pay an introductory fee or a financial incentive to the respondent whenever there was a trade-in (as here) or where the client paid the respondent directly (as here).
7. This paragraph was either overlooked or misinterpreted by the Tribunal. The Tribunal proceeded on the incorrect basis that a referral fee was payable by the supplying dealer to the respondent because it said, as part of its reasons for dismissing the appellant's misleading or deceptive conduct case: "[81] The applicant asserts that the statements on the respondent's website, "Private Fleet - all the fleet benefits for the private buyer'' and "We ensure you get a car of your choice at fleet sales price - better than you would believe. We even guarantee it!" were misleading and deceptive. [82]-[83] … [84] Secondly, the applicant's assertion ignores the statement made in the disclaimer at the foot of the webpage, that the respondent received a referral fee from the dealer where the respondent brokered a concluded agreement between a dealer and a customer. That disclaimer, read objectively, provides context to the other statements on the webpage. It clearly explains the referral fee that the respondent would receive in the event that a concluded agreement was reached between a customer and a dealer. In that context there is no relevant misleading or deceptive conduct on the part of the respondent." (Emphasis ours)
8. That clause was also overlooked or misinterpreted by the Tribunal in its reasons for dismissing the appellant's case under the FTA relating to disclosure of referral fees and commissions. In relation to that part of the appellant's case the Tribunal said: "[92] Turning to s 47B, I am satisfied that the respondent is an intermediary within the definition set out in subsection 47B(3): it is clear on the evidence that the respondent arranges contracts for the supply of motor vehicles as an agent or refers consumers to dealers, who are the suppliers of those goods, under an arrangement that provides for the respondent to receive a financial incentive in the nature of a commission or a referral fee. [93]-[94] … [95] Separately, to that, both the website and the terms and conditions that the applicant has put into evidence positively identify that the respondent was to receive a referral fee from the relevant dealer. That disclosure was made at the foot of webpage produced by the applicant. It was also mentioned in the last paragraph of the terms and conditions."
9. The last sentence of [95] of the Tribunal's reasons indicate that the Tribunal incorrectly read the paragraph immediately above the word "Important" at the end of the Terms and Conditions document.
10. The third important matter is that the evidence is silent as to how much remuneration the respondent received for its part in the transaction, and that remuneration was, on the evidence, never disclosed to the appellant. The appellant paid the purchase price of the MG to the respondent who then, presumably, paid the dealer who supplied the vehicle. Perhaps the respondent paid the supplying dealer less than it received and kept the balance. Perhaps it will simply take the value it obtains by selling the traded-in Volkswagen. Whatever be the case, the respondent never disclosed to the appellant what its remuneration was proposed to be.
11. The respondent's remuneration was not disclosed to the appellant. The fleet discount achieved by the respondent was not disclosed to the appellant. Nor did the respondent ever inform the appellant the exact figure for the trade-in value of the Volkswagen. All the respondent did, at its highest, was to supply a figure to the appellant which was a combination of (on its face) the trade-in value of the Volkswagen ascribed to it by the respondent and the fleet discount achieved by Private Fleet. But this did figure did not inform the appellant: 1. what was the total fleet discount achieved by the respondent; 2. how much of that fleet discount was being passed on by the respondent to the appellant; 3. what value was being given by the respondent for the Volkswagen; and 4. what amount was the respondent being paid out of the proceeds of this transaction (including the value of the Volkswagen).
12. We shall return to those matters later in these reasons.
13. The Tribunal found that later on 7 July 2021, or on the morning of 8 July 2021, the respondent issued an amended "New Vehicle Purchase Agreement" (the "ANVPA") to the appellant. The Client Agreement Form contained within it was in the same general form as the document set out at [27] above, but there were three substantive changes from the information set out in the original Trade In Vehicle(s) Evaluation Confirmation and Client Agreement Form, namely: 1. the odometer reading recorded in the Trade In Vehicle(s) Evaluation Confirmation was changed from 60,000 to 140,000; 2. in the Client Agreement Form: 1. the "Combined Trade-in & Fleet Discount" figure was changed from $9,161 to $7,661 (a reduction of $1,500); and 2. the "Total On-Road Cost (Changeover)" figure was changed from $27,691 to $29,191 (a reduction of $1,500).
14. This event seems to have been the catalyst for disputes between the parties.
15. The appellant challenged those changes although that original challenge was not in evidence. The respondent's response, set out in an email dated 8 July 2021 and sent at 11.26 am, was that the proper odometer reading for the Volkswagen was that of the vehicle (145,500 km but then rounded down to 140,000 km), not the substitute engine (60,000 km) and thus the trade-in value for the Volkswagen was less than originally offered.
16. The appellant replied at 12.31 pm that same day again taking issue with the reduction in trade-in value. Amongst other things he wrote: "The only response I can gather ... is that you've done the deal and without any real substantiation - we need to see it through. 3. I don't feel like there is much you're prepared to do to help us get clarity here. Proceed with the price of $29191."
17. On 13 August 2021, the appellant took delivery of the new MG.
18. A few days later the Volkswagen was provided to Private Fleet by way of trade-in.
19. The appellant commenced proceedings against the respondent on 3 September 2021 claiming breach of contract, misleading or deceptive conduct and breaches of ss 47A and 47B of the FTA. All of those claims were dismissed by the Tribunal.

The appeal

1. The appellant is not legally trained and was unrepresented.
2. The appellant's grounds of appeal were: 1. the Tribunal denied him procedural fairness because it did not insist that he give oral evidence if the Tribunal had concerns as to the nature and standard of evidence; 2. the Tribunal erred in refusing the appellant leave to amend the amount claimed (from $7,661 to $9,400); 3. the Tribunal erred in holding that it was a term of the contract that the purchase price ($29,191) was inclusive and not exclusive of the trade-in value of the Volkswagen; 4. the Tribunal erred in holding that the amount of $7,661 in the ANVPA represented a combined fleet price discount and trade-in value; 5. the Tribunal erred (at [82] of its reasons) in holding that the respondent had not engaged in misleading or deceptive conduct; 6. the Tribunal erred in failing to hold that the respondent did not disclose that it was to receive the Volkswagen as a benefit.
3. There is no substance to ground 1. It is not for the Tribunal to run the appellant's (or the respondent's or any party's) case.
4. There is substance to grounds 2, 3, 5 and 6, and these will be discussed below.
5. In relation to ground 4, the Tribunal did not err insofar as the Tribunal's reasoning focused on the documents. However, the Tribunal did err in failing to have regard to significant evidence, and this will be dealt with together with ground 3.
6. Several other errors appear to us from reading the material. We are required to have regard to those errors even though not raised by the appellant: Cominos v Di Rico [2016] NSWCATAP 5 at [13].
7. In considering these grounds of appeal, and the matters discernible to us, it is convenient to consider them in the context of discussing each of the three causes of action pursued by the appellant.
8. It is necessary to deal with ground 2 first because it is relevant to quantum in relation to the claim for misleading conduct.

The Tribunal's reasons and the errors within

1. After reciting much of the same history in its reasons as we have set out above the Tribunal turned to the appellant's claims in contract, for misleading or deceptive conduct and for breach of the disclosure provisions of the FTA.
2. The Tribunal dismissed each claim but fell into error in relation to each one as we now explain.

Leave to amend the amount claimed - ground 2

1. The appellant's application said that he claimed the sum of $7,661, being the sum referred to in the AVPNA as the combined fleet price discount and trade-in value of the Volkswagen.
2. At the commencement of the hearing the appellant sought leave to amend this sum to $9,400. The appellant said that this sum represented the value of the Volkswagen which the respondent had taken possession of and (at T 5): "That's the, that's the sale price that they, they're saying that the(y) purchased the vehicle for from me."
3. The appellant tendered an online estimate from www.checkrego.com.au ("CheckRego") for the Volkswagen. The Tribunal accepted that document into evidence. The document said that the private sale price of the Volkswagen was $8,300 - $9,400 and the dealer retail price was $9,800 - $11,700.
4. The appellant told the Tribunal that he had advised the respondent of the sought-after amendment about one and a half weeks before the hearing (at T 3).
5. The Tribunal ruled on the application at the end of its written reasons. The Tribunal said: "[99] It follows from what I have said above that the applicant has failed to satisfy me on the civil standard (being the balance of probabilities) that grounds exist for the Tribunal to make the orders sought in the application. That statement is true regardless of whether the application concerned is the application as originally filed, or the proposed amended application that the applicant raised at the start of the hearing. On that basis the application must be dismissed. [100] This leads me to the conclusion that the amendment proposed by the applicant to increase the quantum of his claim is futile. Secondly, the respondent had not been put on notice of the amendment before it was pursued at the hearing. To amend the application in those circumstances would be to deny the respondent procedural fairness in the conduct of the proceedings. Accordingly, leave to amend the application is refused."
6. We agree that the application to amend was futile if the appellant's proceedings were to be dismissed. However, in our opinion the Tribunal erred in dismissing the proceedings and so the application to amend should not have been dismissed on that basis.
7. The Tribunal also erred in saying (at [100] of its reasons) that the respondent had not been put on notice of the proposed amendment until the hearing. The transcript reveals the Tribunal was told that the respondent was notified of the proposed amendment about one and a half weeks before the Tribunal hearing.
8. Because of that factual error the exercise of the Tribunal's discretion miscarried because it fell into one of the errors referred to in House v The King [1936] 55 CLR 499; [1936] HCA 40, namely it proceeded on a material error of fact.
9. In our view the Tribunal ought to have allowed the amendment, the respondent having being given adequate notice of the proposed amendment and it not advising the Tribunal of any prejudice arising from the amendment. Further, it is difficult to see how the respondent could have been prejudiced, it being a motor vehicle dealer and presumably well able to quickly obtain evidence as to the value of the Volkswagen.

The claim in contract - grounds 3 and 4

1. In relation to the contractual claim the Tribunal said (the "Dealer" being the dealer who supplied the new MG): "[39] It is not clear on the evidence whether the (appellant) entered into a contract with the respondent and the Dealer in the form that had been proposed above, or whether the applicant and the Dealer entered into a separate contract for the supply of the New Car, either as a standalone transaction or in conjunction with the proposed New Car Purchase Agreement. I make no findings about those matters, except as set out below. … [72] There are several difficulties with that argument. Firstly, the documents referred to may not necessarily have been part of the actual contract that was entered into between the applicant and the respondent. The evidence discloses that, after the amended draft New Vehicle Purchase Agreement (including that amended Client Agreement Form) was provided to the applicant, the applicant and the respondent engaged in an argument about the valuation of the Trade In Vehicle and how it would affect the principal commercial terms of their agreement. At 12:31 PM on 8 July, the applicant instructed the respondent to "proceeded with the price of $29,191" and "I will complete outstanding forms in the next hour''. None of those outstanding forms were produced in evidence (whether completed or not); nor did the applicant produce into evidence any form of completed/signed contract between himself, the respondent and/or the dealer, or the tax invoice for the New Car that was referred to in the correspondence. [73] In these circumstances the evidence does not allow me to determine with any reasonable satisfaction that there was any "meeting of the minds" between the parties to give rise to an objective intention that can be interpreted to be their contract. The evidence produced by the applicant is ultimately insufficient to persuade me on the balance of probabilities whether there was an agreement, and what its terms were. The applicant's claim in contract must fail for this reason: it has simply not been proved on the balance of probabilities."
2. We would have thought that the evidence was sufficient to find that a contract had been entered into on 8 July 2021 upon receipt of the NVPA, as varied by the ANVPA, and the exchange of emails on that day, there seemingly being offer, acceptance and consideration. The appellant's email sent at 12.31 pm on 8 July 2021 informs the respondent to proceed "with the price of $29,191", conduct consistent with a concluded contract. Thereafter the transaction proceeded with both parties performing their obligations as set out in the ANVPA.
3. But the written documents, not signed and not containing an entire contract clause, were not the end of the story. There was Paul Lyon's uncontradicted evidence (not referred to by the Tribunal in its analysis of the contractual relationship between the parties) that he had spoken to Private Fleet (before the NVPA was sent to the appellant) and: 1. advising Private Fleet that the appellant had been offered a new MG for $31,000 including on-road costs; and 2. that the respondent had possibly orally advised Paul Lyon that it could provide a car on road at fleet sales price for $29,191 less trade-in (meaning, $29,191 from which would be subtracted the trade-in value of the Volkswagen).
4. We say "possibly" because it is not clear from Paul Lyon's statutory declaration whether the statement "Private fleet advised that after trade it could provide a car on road at fleet sales price for $29,191 less trade in" was something said to him by Private Fleet, or his interpretation of the NVPA/ANVPA.
5. Two consequence flow from the absence of consideration by the Tribunal of Paul Lyon's evidence.
6. First, there was the possibly significant contractual effect of the conversation set out in [69(2)] above. If that conversation occurred, then a proper analysis of the evidence may have led to the conclusion that the contract was partly oral and partly in writing, and that an oral term of the contract was that the value of the Volkswagen was to be deducted from the sale price (rather than being included in the sale price). If that was the proper conclusion, the appellant would have succeeded on his contract case.
7. The second consequence is the different complexion thrown onto subsequent events, especially in relation to causation and damages, arising from the conversation set out in [69(1)]. We shall return to this matter when considering damages for the respondent's misleading conduct.
8. In relation to [72] of the Tribunal's reasons, it is true that subsequent events contained the possibility of confirming that concluded contract had been entered into (a signed AVPNA) or varying the original terms (by the provision of the "completed outstanding forms" assuming they had contractual significance, or a signed contract in different terms to the AVPNA), or confirming the passing of title (a tax invoice), but the absence of those documents did not mean that a concluded contract was not entered into between the appellant and the respondent on 8 July 2021.
9. Whilst the Tribunal would have been right to consider those documents had they been in evidence, it was wrong not to find a contract existed in their absence. The authorities show that the formation of contracts in real life may be less formal and factually confused. In Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Heydon JA, with whom Mason P agreed in relation to the following, said at [74]: "Thus offer and acceptance analysis is a useful tool in most circumstances, and indeed is "normal" and "conventional" (Gibson v Manchester City Council [1979] 1 All ER 972 at 974 per Lord Diplock). But limited recognition has been given to the possibility of finding that contracts exist even though it is not easy to locate an offer or acceptance. In Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR [97326] at 11,117-11,118 McHugh JA (Hope and Mahoney JJA concurring) said: 'It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of 'offer', 'acceptance', 'consideration' and 'intention to create a legal relationship' which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship ... Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.'"
10. Having said that, the Tribunal went on to find that even had there been a concluded contract as propounded by the appellant, namely the AVPNA, the appellant's case would have failed. But in that respect the Tribunal erred in not considering the possibly contractually significant evidence contained in Paul Lyon's statutory declaration and referred to at [69(2)] above.
11. In failing to deal with that possibly significant evidence the Tribunal constructively failed to exercise its jurisdiction. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA, with whom Beazley JA (as Her Excellency then was) agreed, said at [9]: "The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked."
12. This error is encompassed in the appellant's grounds 3 and 4, and raises a question of law for which the appellant does not require leave to appeal.
13. We are unable to determine this issue on appeal and the usual remedy would be to return the matter to the Tribunal to be reheard to determine the terms of the contract, breach and damages. However, because we uphold the appeal on the misleading conduct case, and as that is dispositive of the appeal, we decline to return this part of the case to the Tribunal for reconsideration of the claim in contract.

The claim for misleading or deceptive conduct - ground 5

1. In relation to the appellant's misleading or deceptive conduct pursuant to s 18 of the Australian Consumer Law (NSW) [the "ACL (NSW)"] claim the Tribunal said: "[81] The applicant asserts that the statements on the respondent's website, "Private Fleet - all the fleet benefits for the private buyer'' and "We ensure you get a car of your choice at fleet sales price - better than you would believe. We even guarantee it!" were misleading and deceptive. [82] The applicant has failed to satisfy me on the balance of probabilities that those assertions are correct. [83] The claim in respect of the first alleged statement relies on the interpretation that "all" the benefits would be provided to the buyer meant that the respondent would derive no benefit of its own from the transaction. That is an incorrect interpretation of the statement in question. Firstly, it misstates the statement on the website and the statement attributed to Ms Vukich in Paul's statutory declaration. In both cases (it) was "all fleet benefits", not simply "all benefits". The extra word ''fleet" places a very different complexion on the statements concerned. It limits the benefits in question to just "fleet benefits" and does not go so far as to deny the respondent from deriving a benefit of its own. Consequently I am not satisfied that the respondent engaged in the conduct alleged by the applicant. [84] Secondly, the applicant's assertion ignores the statement made in the disclaimer at the foot of the webpage, that the respondent received a referral fee from the dealer where the respondent brokered a concluded agreement between a dealer and a customer. That disclaimer, read objectively, provides context to the other statements on the webpage. It clearly explains the referral fee that the respondent would receive in the event that a concluded agreement was reached between a customer and a dealer. In that context there is no relevant misleading or deceptive conduct on the part of the respondent. [85] For the second asserted statement to be a misrepresentation, in accordance with the authorities that I have discussed above, it has to either be a misrepresentation of a fact (such as the respondent's present intention at the time the statement is made or read) or a statement about a future matter that was made without reasonable grounds. The applicant has not proved that it was either of these things. Secondly, the applicant has not proved that he did not get the New Car at a "fleet sales price". Indeed, he led no evidence to establish what a ''fleet sales price" would have been."
2. Whilst the reasoning in [83] of the Tribunal's reasons may be reasonable on its face, the Tribunal erred in three respects and ground 5 of the appeal is upheld.
3. First, the Tribunal did not go on to consider whether the representation that "fleet benefits" (as distinct from "all fleet benefits") was misleading. That is, did the appellant receive any "fleet benefits"?
4. Second, we infer that the referral fee referred to in [84] of the Tribunal's reasons was the benefit (referred to in [83]) to be received by Private Fleet, but for reasons we have explained, that was not the case. No referral fee was payable. Therefore, the Tribunal's reasoning proceeded on the basis of an incorrect fact.
5. Third, the representation that the appellant would receive "fleet benefits" was a representation as to a future matter and was deemed to be misleading unless the respondent proved it had reasonable grounds for making the representation - see s 4(1) of the ACL (NSW). The respondent did not lead any such evidence and so the Tribunal should have found that the first representation was misleading.
6. The reasoning in [84] is incorrect because the Tribunal overlooked the terms of the Terms and Conditions document which said that a referral fee was only payable where there was no trade-in and where the client paid the supplying dealer directly, neither of which applied in this case.
7. The reasoning in [85] is incorrect because the representation referred to, namely that Private Fleet would ensure clients got the car of their choice at a fleet sales price, better than they would believe, and the fleet sales price was guaranteed, was a representation as to a future matter. The Tribunal said it was not a representation as to a future matter but did not explain why.
8. In our view it was a representation as to a future matter because the event referred to, the sale at a particular price (the fleet sales price) was to take place sometime after the representation and therefore was in the future. Because it was a representation as to a future matter then it was deemed to be misleading unless the respondent proved it had reasonable grounds for making it. The respondent did not lead any such evidence and so the Tribunal should have found that the second representation was misleading.
9. The next question is whether the misleading representations caused any loss to the appellant.
10. It is tolerably clear that had the misleading representations not been made the appellant would not have entered into the transaction. That position is made clear in an email from the appellant to the respondent dated 11 August 2021, a couple of days before the new MG was delivered and before the Volkswagen was traded-in. The letter, which was tendered in evidence to the Tribunal, said: "It has now been disclosed to us, contrary to our discussions, that your interpretation of the contract is that you are entitled to any discount on the vehicle plus on road costs which are not payable by falsely representing to us on many occasions they are now part of the purchase price. Similarly, you now assert that the trade in for the motor vehicle is entirely for your benefit and not to be deducted from the purchase price no matter what quantum you obtained. Clearly in all our discussions with you this was designed to deceive us, resulting in not a clear meeting of our minds. At all times it was disclosed to you we could purchase the same motor vehicle for $31,000.00 and your agent clearly indicated she could do better. That was the basis of the contract. Clearly you now see for us to proceed to our detriment for your benefit. We have offered to walk away because of any misunderstandings, however you now advise to (sic) enforce the contract. We have offered to pay the dealer and you refund the trade in, however you refused the same and you will keep the trade in monies and on road costs for which you are not liable. As now discussed, we will pay the balance of the purchase price and hand over the trade in as insisted by you and will commence legal action to litigate your repeated deceptions." (Emphasis ours)
11. In our view that letter established that the appellant would not have entered into this transaction with the respondent but for the representations to which we have referred.
12. The subsequent completion or affirmation of the contract by the appellant does not affect his right to damages: Myers v Transpacific Pastoral Co Pty Ltd [1986] ATPR-673.
13. What then are the appellant's damages?
14. In a case where party A would not have entered into a transaction but for the party B's misleading conduct, the measure of A's damages is usually the difference (in dollar terms) between the position A is in now and the position A would have been in had A not entered into the transaction.
15. In this case, the appellant's present position is that he paid $29,191 to the respondent, he handed over his Volkswagen, and received a new MG. Had he not entered into the transaction with the respondent he would, logically, have proceeded with the offer made to him by another dealer (and about which he told the respondent - see [15] above - and which the respondent did not deny) for a new MG at a price of $31,000 including on-road costs, and he would have retained possession of the Volkswagen which he then, presumably, he would have sold.
16. The difference between the two positions is the value of the Volkswagen less the difference between $31,000 and $29,191 (being $1,809). That is, had the appellant not entered into this transaction with the respondent he would have had to have paid more for the MG from the other dealer i.e. $1,809 more, but he would have had the Volkswagen which he could have sold.
17. The next question is the value of the Volkswagen. The only evidence was the CheckRego prices (see [60] above) and Paul Lyon's statement to the Tribunal (at T 25): "Well, we say it's clear and it supports our contention what we've put in evidence on oath that "When we get the trade-in vehicle we'll have it valued. When we get it valued that's when you find out how much you're going to get," but we've received no advice in writing at all other than orally at the call-over that they stated that they got $4,000 by way of, it's a wholesale sale. Then on a recent search they say the - this is the recent application to seek permission for leave to change the quantum of the application. A recent search says that they paid us - I haven't got the document in front of me - but 8,000 or $9,000. So they kept the vehicle and that, so that, what they told the call-over which was the first - and it was clearly discussed and clearly disclosed, that was the first we heard of what quantum they put on the trade-in. That was the first we became aware of quantum on trade-in."
18. The evidence, such as it was, was very thin, but it was some evidence of value. The following authorities say that the mere difficulty in estimating damages does not relieve us from estimating damages as best we can.
19. In The Commonwealth of Australia v Amman Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Mason CJ and Dawson J said at p 83: "The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Fink v Fink (1946) 74 CLR 127, at 143; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, at 411-412; Chaplin v Hicks [1911] 2 KB 786, at 792. Indeed, in Jones v Schiffmann (1971) 124 CLR 303, Menzies J went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation": at 308. Where precise evidence is not available the court must do the best it can: Biggin and Co Ltd v Permanite Ltd [1951] 1 KB 422, per Devlin J at 438. …"
20. Deane J said at p 125: "The mere fact that damages cannot be assessed without difficulty and uncertainty does not, however, relieve a court from the responsibility of attempting to assess them as best it can (see, e.g., Howe v Teefy (1927) 27 SR (NSW) 301, at 306; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, at 411-412). As was pointed out by Dixon and McTiernan JJ in Fink v Fink, at 143: "Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages."
21. HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54 was a misleading and deceptive conduct case. One question in the case was damages and how much proof was required. Their Honours held that the correct measure of damages, apart from consequential losses, was to deduct the value of the Plaza at the date of acquisition from the purchase price (at [34]), and in assessing that value to bear in mind post-acquisition events. Their Honours said that the test depended not on the difference between price and "market value" but price and "real value" or "true value" - what the asset was "really worth" (at [36]-[38]).
22. In terms of proof their Honours said at [47] (footnotes omitted and our emphasis): "… The defendant argued that it was not possible to demonstrate a sufficient loss as at the acquisition date in 1997 to render the trial judge's assessment correct. It pointed to a lack of specific evidence on the subject. However, while it is true that there was no direct evidence placing the "true value" in the vicinity of $130,000 on 28 April 1997, there does not have to be. Barwick CJ said that, provided there was some evidence of damage, in the field of assessing damages for fraud, "as in other fields, a tribunal of fact must do the best it can in assessing damages". Fry J found no difficulty in assessing the difference between the price paid and "value" in the sense of "real value" or "a fair price to pay … in the real circumstances at the time" of purchase, even though there was no direct evidence on the point. Here, indirect evidence can be found in the market values at the later dates. While the course of actual events is excluded to a greater degree the further back in time the dates at which values are stated, the later values, being based on fuller experience, and being unaffected by extraneous causes in this case, are capable of pointing to the underlying reality of earlier times."
23. In Di Liristi v Matautia Developments Pty Ltd [2021] NSWCA 328; (2021) 396 ALR 545 one issue was the sufficiency of proof as to the cost of remediation of certain land. The only evidence tendered were two quotes for that remediation. Gleeson JA, with whom Macfarlan and Brereton JJA agreed, held that the two quotes were "some evidence, albeit slight, of the likely cost of remediation". His Honour said: "[76] It is well-established that where damage has been proved but the evidence does not enable precise quantification of it, the Court is required to "do its best". In Paino v Paino (2008) 40 Fam LR 96; [2008] NSWCA 276, Hodgson and McColl JJA said at [76]: 'There is a general principle in relation to damages that where a plaintiff has proved substantial loss but the evidence does not enable precise quantification of it, the court should "do its best": Fink v Fink (1946) 74 CLR 127 (at 143); New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 (at [72]); Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31 (at [135]-[141]).'"
24. Of course, in a case such as this, the value of the Volkswagen is not the value placed upon it by the respondent, but the value of it in the appellant's hands (had the transaction not been entered into). In that event, the best and only evidence in this case was the CheckRego value of $8,300 - $9,400 for a private sale. The midway point in that range is $8,850.
25. The respondent had the opportunity to challenge that evidence, or lead evidence of its own, but appears to have voluntarily declined to do so. Accordingly, and in accordance with the authorities to which we have referred, we would value the Volkswagen at $8,850.
26. Therefore, if the transaction with the respondent had not occurred, the appellant would have been worse off by $1,809 (the additional amount he would have had to have paid to another dealer for the MG) but would have been able to sell the Volkswagen for $8,850. The result is that the appellant is entitled to $7,041 from the respondent.

The non-disclosure claim - ground 6

1. The appellant alleged that the respondent had breached ss 47A and 47B of the FTA. Those sections, which came into effect on 1 July 2020, relevantly say: 47A Disclosure of prejudicial terms relating to supply of goods or services (1) A supplier must, before supplying a consumer with goods or services, take reasonable steps to ensure the consumer is aware of the substance and effect of any term or condition relating to the supply of the goods or services that may substantially prejudice the interests of the consumer. (2) Without limiting subsection (1), a term or condition relating to the supply of goods or services to a consumer may substantially prejudice the interests of the consumer if - (a) the term excludes the liability of the supplier, or (b) the term provides that the consumer is liable for damage to goods that are delivered, or (c) the term permits the supplier to provide data about the consumer, or data provided by the consumer, to a third party in a form that may enable the third party to identify the consumer, or (d) the term requires the consumer to pay an exit fee, a balloon payment or other similar payment. 47B Disclosure of referral fees, commissions, etc (1) An intermediary must, before acting under an arrangement that provides for the intermediary to receive a financial incentive, take reasonable steps to ensure the consumer who will be supplied with the goods or services to which the financial incentive relates is aware of the existence of the arrangement. (2) … (3) In this section - financial incentive means - (a) a commission or referral fee, or (b) another kind of payment prescribed by the regulations. intermediary - (a) means a person - (i) who, under an arrangement that provides for a financial incentive, arranges contracts for the supply of goods or services as an agent or refers consumers to another supplier of goods or services, or (ii) who is prescribed by, or who belongs to a class of persons prescribed by, the regulations, but (b) does not include a person, or class of persons, excluded by the regulations.
2. These sections refer, at times, to matters for which the regulations may provide, but there are no relevant regulations applying to a matter such as this.
3. The Tribunal found that the respondent supplied car brokerage services to the appellant as a consumer (at [88]). It held the respondent was an intermediary within the meaning of that term in s 47B(3) (at [92]).
4. The Tribunal held that the term of the contract that the Volkswagen was part of the consideration the appellant provided for the new MG was not a term referred to in s 47A(2) (at [90]). The Tribunal held that the appellant was aware of this term, and its existence did not prejudice the interests of the appellant (at [91]). The Tribunal therefore rejected the s 47A(1) claim.
5. The Tribunal found that the trading-in of the Volkswagen by the appellant with the respondent without the payment by the respondent to the appellant of the trade-in value at that time i.e. the trade-in value not being part of the purchase price of the new MG (which was the appellant's case at the hearing) did not amount to a fee or a commission (within the meaning of "financial incentive" in s 47B) nor could it prejudice the appellant's interests if the respondent was entitled to keep those monies (at [89]). The Tribunal held that the Volkswagen (by way of trade-in) was part of the consideration the appellant provided for the new MG (at [89]).
6. The Tribunal held that the respondent arranged contracts for the supply of motor vehicles as an agent or referred consumers to dealers, who were the suppliers of those goods, under an arrangement that provided for the respondent to receive a financial incentive in the nature of a commission or a referral fee (at [92]).
7. In terms of disclosure, the Tribunal said: "[93] Consequently, s 47B(1) requires the respondent to take reasonable steps to ensure that the consumer who will be supplied with the goods to which that commission or referral fee relates (namely, the applicant) is aware of the existence of the arrangement between the respondent and the relevant supplier, namely the Dealer. [94] The applicant's evidence and his submissions did not identify any particular steps that the respondent should have taken under that requirement - but did not take - to inform him of the existence of the referral fee arrangement between the respondent and the Dealer. On that basis, the applicant has failed to make out any case that the respondent breached s 47B(1) in the subject dealings. [95] Separately, to that, both the website and the terms and conditions that the applicant has put into evidence positively identify that the respondent was to receive a referral fee from the relevant dealer. That disclosure was made at the foot of (the) webpage produced by the applicant. It was also mentioned in the last paragraph of the terms and conditions. The applicant has not asserted in his evidence supporting his submissions those steps were insufficient to be regarded as reasonable under the section."
8. The Tribunal's reasoning repeats the central flaw previously mentioned by us and found elsewhere in the Tribunal's reasons to the effect that the respondent was entitled to a referral fee as mentioned on the respondent's website. It was not.
9. On the evidence in this case there was no disclosure by the respondent to the appellant as to what remuneration it would receive out of the transaction. Indeed, the evidence (which only the respondent could produce) is silent as to what remuneration the respondent received, and no contractual document reveals any written term concerning the respondent's remuneration. Put simply, the respondent purported to be acting as a broker for the appellant without ever disclosing how much it would be paid (by the appellant).
10. The Tribunal found that s 47B(1) required the respondent to take reasonable steps to ensure that the appellant was made aware of the existence of any arrangement between the respondent and the supplying dealer. On the evidence, that was not done.
11. In our opinion there was also a breach by the respondent of s 47A(1). The respondent supplied services (and perhaps goods if the true transaction was the respondent supplying the new MG to the appellant via its agent, the supplying dealer) to the appellant and so was a "supplier".
12. What remuneration the respondent took from the transaction was something which might substantially prejudice the financial interests of the appellant depending on the size of that remuneration. On the evidence, the respondent took no steps, let alone any reasonable steps, to ensure that the appellant was aware of the substance and effect of any term or condition relating to the respondent's remuneration.
13. Accordingly, we uphold ground 6 of the appeal, as somewhat modified in our reasoning above. The Tribunal erred on a question of law in that it failed to correctly apply ss 47A and 47B to the correct facts of the case.
14. In terms of compensation or damages for breaches of those sections, a breach of either s 47A or s 47B is a "local contravention" as defined by s 61(1) of the FTA.
15. Section 70(2)(b) of the FTA says that Division 3 (Damages) of Part 5-2 of the ACL (NSW) "apply to a local contravention in the same way as they apply to a contravention of the ACL specified in those provisions".
16. Accordingly, the appellant's claim being a consumer claim within s 79E of the ACL (NSW), the appellant would be entitled to claim compensation against the respondent for the breaches of ss 47A and 47B.
17. Quite what that compensation should be was not argued either before the Tribunal or before us and saying so is not to criticise the appellant and his father. There was no evidence of what remuneration the respondent received, and no evidence as to the usual, reasonable cost of services such as those supplied by the respondent. The absence of argument and evidence would ordinarily suggest that the appropriate remedy for us to grant in upholding this ground of appeal would be to return the matter to the Tribunal for the assessment of damages.
18. However, given the circumstances we have just identified, the fact that the appellant is entitled to compensation for his misleading and deceptive case and the fact that the upholding of the appeal on that ground is dispositive of the appeal, we would not be inclined to return this matter to the Tribunal for the assessment of damages in relation to this cause of action.

New evidence on appeal

1. We note that the appellant sought to tender two additional pieces of evidence on the appeal which were not before the Tribunal. The first was a statutory declaration declared by the appellant on 1 April 2022. The second was a tax invoice from the supplying dealer to the appellant dated 16 August 2021.
2. In our view it has not been established that the statutory declaration and the tax invoice were not reasonably available to the appellant at the time of the hearing before the Tribunal - see cl 12(1)(c) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW). Accordingly, we did not admit them on the appeal.

Orders

1. We make the following orders: 1. the appeal is allowed; 2. the orders of the Tribunal of 22 November 2021 are set aside; 3. in lieu thereof, order that the respondent is to pay the appellant $7,041 immediately.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 23 June 2022