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[2025] NSWDC 156
General information, not legal advice.
District Court of NSW
2025-05-02
Waugh SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Vrontas v Demos and Etuners Group Pty Ltd [2025] NSWDC 156
Hearing dates: 13-14 March 2024
13 May 2024
Date of orders: 2 May 2025
Decision date: 02 May 2025
Jurisdiction: Civil
Before: Waugh SC DCJ
Decision: 1. Judgment for the defendants.
2. Plaintiff to pay the defendants’ costs of the proceedings.
Catchwords: Contracts – oral contracts – terms of contract - Australian Consumer Law - misleading or deceptive conduct – unconscionability – breach of consumer guarantees
Legislation Cited: Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), s 29, s 60, s 61, s 236
Cases Cited: Nil
Texts Cited: Nil
Category: Principal judgment
Parties: Christopher Vrontas (Plaintiff)
Trenten Nicholas Demos (First Defendant)
Etuners Group Pty Ltd ACN 612 621 780 (Second Defendant)
Representation: Counsel:
Mr Cameron Shamsabad (solicitor) (Plaintiff)
Mr James Parrish (Defendants)
Solicitor:
Solve Legal Pty Ltd (Plaintiff)
Kells (Defendants)
File Number(s): 2023/0088584
Publication restriction: Nil
Mr Christopher Vrontas, the plaintiff, owns what started out life as a 2015 Audi S3 sedan. He bought the car in December 2018.
Mr Trenten Demos, the first defendant (Mr Demos), is a director of the second defendant, Etuners Group Pty Ltd (Etuners).
Mr Vrontas sues both defendants for damages for breach of contract and for loss or damage pursuant to section 236 of the Australian Consumer Law allegedly because of the defendants’ misleading or deceptive conduct, unconscionability and breach of consumer guarantees.
In March 2019 Mr Vrontas contacted Etuners about installing an ethanol injection kit on his car. He spoke to Mr Demos on the phone. They had not met or spoken to one another before.
Shortly after their call Mr Vrontas sent Mr Demos a text message with his own details and some details about his car. Mr Demos replied by text message. Amongst other things, he said he would send Mr Vrontas an invoice and asked that Mr Vrontas send him a screenshot of the payment once it was made. The same day, Mr Demos sent Mr Vrontas an invoice with a description of the work to be done and calling for the payment of a 50% deposit. The invoice was dated 1 March 2019 and had a due date of 4 March 2019. Mr Vrontas paid the invoice by electronic funds transfer on 4 March 2019 and sent Mr Demos a screenshot of his receipt for the payment.
Sometime later, Etuners undertook the work. As described in the invoice, it was to supply and install a water ethanol injection kit with block off valve and carry out a Custom Dyno ECU and DSG calibration.
Mr Demos gave evidence, which was unchallenged and I accept, that when he first spoke to Mr Vrontas on the phone he said to Mr Vrontas: “The way we operate our business, is to issue an invoice to cover the cost of the parts and the tuning expenses before we do anything. You can appreciate our company can't afford to make a large outlay for parts on behalf of our customers. When we receive payment for the parts, we will order them from the supplier and as soon as the parts arrive from the supplier, we will book your car in at the first available appointment for the installation and tuning. If you're happy with this arrangement I will need your details so that I can issue you with an invoice for the parts.".
It is common ground that in mid-2019 Mr Vrontas and his car set an Australian record for a stock turbo, stock motor at the Western Sydney International Dragway at Eastern Creek when he ran a time of 11.61 seconds over a quarter mile.
Mr Vrontas said that he did this in June or July 2019. Text messages between Mr Vrontas and Mr Demos show that it more likely happened on or about 14 August 2019.
In their exchange of text messages on 14 August 2019 Mr Demos offered to install a nitrous oxide system on Mr Vrontas’ car to increase its performance. Once installed, nitrous oxide is injected into the motor to increase its torque and kilowatt output.
On Wednesday 25 September 2019 Mr Vrontas and Mr Demos made arrangements by text message for Mr Vrontas to bring his car to Etuners on Friday, 27 September 2019 for work to be done, including setting up a nitrous oxide system. The next day (26 September 2019) Mr Demos asked Mr Vrontas to reschedule, and to bring the car in the following week instead.
Before Mr Vrontas could bring the car in, it is common ground that the car suffered a catastrophic engine failure and could not be driven. As Mr Vrontas put it in his oral evidence, the engine blew and there was a hole in the motor.
Mr Vrontas and Mr Demos exchanged text messages about this on 29 September 2019 and made arrangements to meet the next day.
On 30 September 2019 Mr Vrontas and Mr Demos had a meeting at Etuners’ workshop.
It was at this meeting that Mr Vrontas alleges the terms of the contract upon which he sues the defendants were agreed. I will come to the details later.
In a message on 30 September 2019, after their meeting, Mr Demos informed Mr Vrontas that he had told Hank Iroz (who was a supplier of turbo kits in the United States he was making enquiries with) that “we want to run low 10s”, meaning times in the low 10 seconds for a quarter mile.
On 30 September 2019, Mr Demos sent Mr Vrontas invoice number 334 for $25,000. The invoice stated that it was for “Deposit payable (total estimate 35k)”.
In a message the next day (1 October 2019), Mr Vrontas told Mr Demos that he had deposited $20,000 that day and he would deposit the other $5,000 the following day.
Later that day, in a message on 1 October 2019, Mr Demos informed Mr Vrontas that a turbo kit and fuel pumps had been ordered and there was a lead time of usually 6 to 8 weeks.
In a message on 3 October 2019, Mr Vrontas asked Mr Demos to set up the car for “nitrous” as well, saying “I’m here for a good time not a long time, if I need to put more money in account let me know”.
In messages on 14 October 2019, Mr Vrontas informed Mr Demos that he had “decided to go the wavetrac diff” and asked Mr Demos if he could organise that. Mr Demos told Mr Vrontas in reply that he “Will get onto it now”. Mr Vrontas said to Mr Demos “and if I have to pay more I’m just ok, no shortcuts … if there is anything you suggest doing don’t hesitate to ask me cause the money is not a issue, I want to go fast reliably and shock a few people, I might even wrap the car before we debut at track”. Mr Demos replied “All good bud .. I’ve got you loud and clear .. wavetrac is ordered ..”.
In a message on 24 October 2019, Mr Demos informed Mr Vrontas “turbo kit is built and turbo arrives ready to ship everything from Europe early next week”. Mr Demos informed Mr Vrontas that IE had advised that work had begun and Mr Demos estimated a lead time of 8 – 12 weeks. He also told Mr Vrontas that the diff was coming from Europe. Mr Demos told Mr Vrontas “We will get the car in to start in the coming weeks.”.
In a message on 26 October 2019, Mr Demos informed Mr Vrontas that he had also ordered an “e85 compatible surge tank with twin fuel pumps”. Mr Vrontas responded “Awesome, like I said I want this done right and prepared to do all the little things as well as big things, at any time you think of something let me know, it’s only money but money can’t buy the smile on my face (emojis), and it’s a little less inheritance for my little …”.
In messages on 29 October 2019, Mr Demos asked Mr Vrontas if he had upgraded engine/trans mounts. Mr Vrontas replied that he did not. Mr Demos said that they would do them while the engine is out and asked Mr Vrontas if he wanted Mr Demos to source them. Mr Vrontas gave a thumbs up and said yes. Mr Demos also asked Mr Vrontas to look up Tim Radley on Facebook when he had the time. Mr Demos said that he would like to send Mr Vrontas’ head to race developments in the UK to port and build, and asked Mr Vrontas if he was keen. Mr Vrontas replied “Golf r doing 8.9s!!. .... I'll have some of that ,yes please , measure twice cut once , if I need to top up at any time let me know fuck let's go 9,s”. Mr Demos replied “Yes mate .. most likely next week .. I've actually just changed the turbo to the new one just released , 781bs/ min or approx 780hp This build is going to break the internet”. Mr Vrontas replied with 2 handclapping emojis, the word “awesome”, 7 smiling and grinning teeth emojis, the words “I want to be famous” and another emoji. Mr Demos replied “I'll need the car next week or the week after to start to dismantle mate .. we are just waiting for the hoist in the new shop.”
In light of the messages I have just referred to, the car must have been delivered to Etuners on 7 November 2019. It follows that Mr Demos was mistaken when he said in his affidavit that the car was delivered on 1 November.
It is common ground, however, that the car had to be towed in and did not arrive under its own steam.
On the day the car was delivered, Mr Vrontas and Mr Demos had a conversation at Etuners’ workshop. Mr Demos gave evidence that there was discussion about payment in cash and mention of recording it as “sponsorship”. The details of the conversation are controversial.
During this time Etuners undertook work on the car, as did 2 other specialist companies – one was called KTEC and the other was DJ Toy Factory.
Etuners rendered a series of invoices to the plaintiff, which he paid. It is common ground, and admitted on the pleadings that the total amount paid by the plaintiff to Etuners was $153,662.06. The first invoice was issued on 30 September 2019 and the last on 12 April 2021.
It is common ground that the car was returned to Mr Vrontas at his request. The pleadings suggested that it was returned in August 2021. However, the evidence before me establishes that Etuners returned it to Mr Vrontas on or about 31 May 2021. That timing is consistent with Mr Vrontas’ oral evidence, Mr Demos’ oral evidence and contemporaneous messages.
It is also common ground, but established on the evidence, that when it was delivered it was not in an operating condition and had to be delivered by tow truck.
At the time Mr Vrontas requested the return of the car, he knew it was not fully operational and had parts missing, such as the fuel lines and pumps.
The reason Mr Vrontas took the car back emerges from contemporaneous messages and Mr Vrontas’ oral evidence.
As at 27 February 2021, the car was with DJ Toy Factory, which was undertaking work including spray painting the car. On that day, Mr Demos sent Mr Vrontas a message informing him that DJ Toy Factory had asked for a progress payment of $15,000. Mr Vrontas replied “progress is 15K … I could have got a Re spray”. Mr Demos said “Yes”. Then Mr Vrontas said:
“Mate it is starting to hurt
Might have to put on
hold
I'll get the 15k
But that's it
Got nothing left
That 15k will hard
enough”
Mr Vrontas’ revelation that he wanted to put the project on hold naturally led to further discussion in a continuing exchange of messages.
On 4 March 2021 Etuners issued an invoice to Mr Vrontas for the DJ Toy Factory progress payment of $15,000. Mr Vrontas paid it the following day (5 March 2021).
On 12 April 2021 Mr Vrontas made his final payment to Etuners. It was in the sum of $3,000 in payment for invoice number 894 issued on that day. Whilst the date of the message is not clear from the evidence, the deposit of this money is consistent with a message that Mr Vrontas sent to Mr Demos around this time in which he said “I'm putting 3k in your account later today so with what is left at least after wrap you hold on to till I'm ready to finish, we have come to far to rush, when I'm cashed up we can then go for 8's cause every one is doing 9's”.
In other messages about this time, but again the dates of which are not clear from the evidence, Mr Vrontas said to Mr Demos:
47.1 “ … it could be 3 months before I see any money so let's just wrap it and I'll bring her home and when I get my cash we finish , that's life not much I can do, …”.
47.2 “ … if you can give me a rough estimate on what I'll need dollar wise to finish it after wrap”.
49.1 In October 2021 Mr Vrontas was considering selling the car. He agreed that he spoke to Mr Demos about that on the telephone in October 2021. He agreed that he told Mr Demos that he was in debt because of a then current court case with his partner; that he wanted to sell the car and would like to sell it for about $85,000; that it was correct the car could not be registered for use on a public road. He agreed that he asked Mr Demos if he knew anyone he could sell the car to and that Mr Demos said that maybe Mr Vrontas could think about offering it to Danny or the Etuners dealer in Queensland. Mr Vrontas then sent Mr Demos photos of the car and they exchanged some messages on 22 October 2021. On 27 October 2021 Mr Vrontas told Mr Demos in a message that the car was “not for sale, I got some good news on my health and some good news from my solicitor, when I get a chance I’ll talk to you as I’ve changed what I’m going to do, ATM I’ve got a lot of shift happening so going to leave it for now, early in the nee year will give me a better picture, today was full of good news, hope your well”.
49.2 On 28 February 2022 Mr Vrontas sent Mr Demos a message saying that he needed to talk urgently. Mr Vrontas agreed that he spoke to Mr Demos at this time and told him that he was close to a property settlement with his partner and his lawyer had asked him to obtain a valuation of the car. He agreed that he asked Mr Demos to do that. As a result, Mr Demos sent an email to Mr Vrontas’s solicitor on 1 March 2022 setting out his “evaluation”.
49.3 In March 2022, Mr Vrontas asked Mr Demos to act as a referee for him on his application for a job in the spare parts service department of Tynan’s Motors at Kirrawee.
In a message on 27 July 2022 Mr Vrontas told Mr Demos “… I’m back, car will get finished, finally got court orders to sell unit, … if you can call me next week to discuss a plan of attack but my health is not the best will talk about that when we talk, but I need this, I need to distract my mind, been dreaming of finishing car, finally got my good karma, I’m still with Veronica, she agrees, finish my dream Talk soon, next week Cheers bud”.
Although the message of 27 July contemplated talking the following week, it was not until 17 August 2022 that Mr Vrontas visited Etuner’s workshop where he spoke to Mr Demos in person. Mr Demos set out his version of what was said at that time in his affidavit. Mr Vrontas did not address the conversation in an affidavit. In his oral evidence Mr Vrontas agreed that he visited the Etuner’s workshop and spoke to Mr Demos that morning. It was not suggested to Mr Demos in cross-examination that the account of the conversation set out in his affidavit was not accurate. In his affidavit, Mr Demos said that the conversation occurred in these words or words to the following effect:
Mr Vrontas said: "Trent, the property has been auctioned and I want to speak to you about continuing the works on the car and I would like Etuners to take the car back and finish it off."
Mr Demos said: "Chris, there is at least $15,000 - $20,000 of further work to be done in order to complete the car. It's likely to take several weeks, if not months. We're very busy at the moment for at least the next eight months."
Mr Vrontas said: "I'm not in a hurry but I'll have funds again shortly."
Mr Demos said: "It's not about the money, we just can't help you with the further work you want to do, we're too busy."
In his oral evidence, Mr Vrontas said that he went and saw Mr Demos about finishing the car and asked him “what do we have to do to finish it”. Mr Vrontas said that Mr Demos couldn’t tell him and “he made excuses that he was busy” and that Mr Vrontas asked Mr Demos whether he wanted more money 5,000, 10,000 20,000 and Mr Demos would not tell him.
It is not necessary for me to make findings about precisely what was said. The critical aspects of the conversation are common ground however. Firstly, Mr Vrontas was asking Mr Demos about Etuners “finishing the car”, as he had put it in his message of 27 July. Secondly, Mr Demos told Mr Vrontas that Etuners was too busy to undertake the work at that time.
By his Amended Statement of Claim, Mr Vrontas pleaded that on or about 30 September 2019 the parties – meaning the plaintiff and both defendants – entered into a partly oral and partly written contract for the modification of his car.
By the time of written closing submissions, Mr Shamsabad, who appeared for Mr Vrontas, submitted that the contract was oral (paragraph 96) and conceded that Mr Demos was not a party to it (paragraphs 97 and 98).
By the end of closing submissions, the critical oral term of the contract the plaintiff sought to prove and rely upon was a term defined in the plaintiff’s Amended Statement of Claim as “the Goal”. The plaintiff no longer pressed a further oral term that the defendants promised to increase the performance capacity of the car to approximately one and half times its factory output.
As defined in the pleading, “the Goal” was:
“Another term of the Contract was for the First and Second Defendants to modify the Vehicle to be able to travel from zero (0) to a quarter mile between nine (9) and nine and a half (9.5) seconds. The Defendants made promises and guarantees that the Vehicle would be capable of reaching this level of performance (the Goal)”.
Mr Vrontas and Mr Demos both accept that a conversation occurred between them on 30 September 2019 at Etuner’s workshop. Neither one said that anyone else was present. They both set out their versions of the conversation in affidavits, and they were both cross-examined.
I have already set out the context earlier in these reasons.
In his affidavit, Mr Vrontas said the conversation went as follows:
Mr Vrontas: Hey Trent, thanks for meeting me. I heard that you were able to tune up Audis. I've got a 2015 S3 Sedan and I've been looking at getting my car to around 9-9.5 seconds on a quarter mile. It's basically stock but has some damage on the hood and I don't want it sitting on stockies. Is that something you'd be up for?
Mr Demos: Yep , that's right up my alley. To do that with what you've got, I reckon we would have to first get you a bigger turbo kit which means you'll need an upgraded turbo , bigger intercooler, and forged steel piping. The most important upgrade would be work to the motor to handle the extra boost. We'd need to get a forged block, ported head and some upgraded internals to do that. We would also need something like an active suspension; weight reduction like doors, bonnets and light rims ; and if you wanted a nitrous oxide fuel kit with some sort of methanol or flex-fuel system. Finally. we 'd need to dyno tune it all when everything is installed to make sure it runs in sync.
Mr Vrontas: Wow! That sounds amazing . It sounds like you know what you're talking about. Let's get this started . I will message to confirm . Can you please send me a quote for the work?
Mr Demos: Sure. Just letting you know, I'll need about $25 ,000 as an upfront payment, preferably cash for labour, parts I already have and other work that I'll keep off invoices to save you some GST, then $25,000 on the books to officially order some stuff to get things underway
Mr Vrontas: Done. I'll bring it cash to you tomorrow.
Mr Demos: When I invoice you . I'll include the cash payments as a ‘sponsor discount' to help with tax on my end.
Mr Vrontas: If you do the work, I don't mind at all.
Mr Vrontas: I've blown the engine in my car. The timing chain, and the oil pump are hanging out of the bottom of the motor. I'll need a new forged motor and a turbo kit to be installed.
Mr Demos: The quickest and most cost-effective way to repair your car is to replace the motor with an IE short motor. Our mechanics will examine the blown motor and salvage any of the parts that aren't damaged and use them to rebuild your engine. Any parts that can't be used or that are required for the rebuild we will discuss with you, and we’ll get a pricing on the availability of these parts as the build progresses. I will need you to approve our estimates and pay for the parts before they are ordered.
Mr Vrontas: Trent, I want a big turbo kit. Can you work something out for me?
Mr Demos: Sure Chris. At this stage I estimate the IE short motor and rebuild will cost you about $25,000.00. Let me reach out to IROZ Motorsports and/or RPC Motorsports to see if the turbo kits are available. I estimate these will cost about $10,000.00 plus the overseas shipping and duties. As soon as I know what is available, I'll come back to you with the time and pricing so you can decide if you want to go ahead.
Mr Vrontas: Trent, can Etuners invoice my business?
Mr Demos: Chris, we are happy to help, and we will assist in whatever way we can, whilst the invoice will be addressed to your business, the contents of our invoice will be for the parts and work necessary for your car. The invoice is at your request, and we are happy to assist you, but we can’t change the content.
Mr Vrontas: Okay, can Etuners send an invoice in relation to my work vehicle and you keep one for your records as well, I'm okay with that.
Mr Demos: You'll need to send me the details of your company and the vehicle.
63.1 Mr Vrontas agreed that he said to Mr Demos words to the effect “I’ve blown the engine in my car. I need a new forged motor and turbo kit.”. This accords with Mr Demos’s version of the conversation.
63.2 Mr Vrontas agreed that he did not say “I hear that you’re able to tune up Audis” and “I’ve got an S3 Audi”. This concession contradicted his own affidavit. He accepted that there was no need to say these things because Mr Demos and Etuners had already worked on the car.
63.4 Mr Vrontas said that he did not remember saying “I don’t want it sitting on stockies” and that he did not even understand what was meant by “stockies”. These are words he attributed to himself as saying in his own affidavit. The fact that he could not remember saying them could perhaps be explained by the passage of time between the actual events and the preparation of his affidavit and still further the passage of time to the hearing. However to forcefully question the meaning of a word he actually attributed to himself, in an affidavit he says he wrote and his girlfriend or partner typed up, is to say the least unusual.
63.5 Mr Vrontas agreed that when he went to the workshop to have the conversation with Mr Demos he had already decided that he wanted a new turbo for the car.
63.6 When it was put to Mr Vrontas (Transcript p.54) that he did not say “I’m looking to get my car to around 9 to 9.5 seconds”, he said:
A. No, I, I did say to him I wanted to beat the world record, knowing that the record was 9.4 seconds, so I didn't have to say the time cause the world record was that time.
Q. So you didn’t say the time.
A. No, I just said the world record, but we both knew what that time was.
And subsequently (Transcript p.56):
Q. You didn’t say to him, “I’m looking at getting my car to around 9 to 9.5 seconds on a quarter mile,” did you?
A. No.
This evidence of course contradicted his own affidavit. But, more critically, it was a clear and unambiguous admission by Mr Vrontas that the words he said formed the critical oral term of the agreement were in fact not said at all.
63.7 Mr Vrontas had no explanation as to why he had not included in his affidavit the words he says he used in the conversation about breaking the world record.
63.7 Subsequently, Mr Vrontas agreed that in fact he did not know what the world record was until June 2020. This was when Mr Demos had some communications with Hank Iroz, the world record holder.
63.8 Mr Vrontas said that when the motor blew, there was no point rebuilding it to standard specifications again and he decided “let’s go and do it properly”.
63.9 Mr Vrontas agreed that he said to Mr Demos “Can Etuners invoice my business?”. This is consistent with Mr Demos’ account of the conversation. It is also consistent with the fact that, as Mr Vrontas agreed, shortly after the meeting he sent a text message to Mr Demos with his business name.
63.10 Mr Vrontas denied that Mr Demos said to him “when I invoice you, I’ll include the cash payments as a ‘sponsor discount’”. This contradicted his own affidavit - these are the very words he attributed to Mr Demos in his affidavit. He could offer no explanation as to why he had included them in the affidavit. The words Mr Vrontas attributed to Mr Demos in his affidavit also contradicted Mr Vrontas’ other denials in cross-examination that Mr Demos had told him he would record cash payments as a sponsorship discount in Etuners’ invoices.
64.1 Mr Demos reiterated a number of times that Etuners did not guarantee the performance of vehicles after they leave the workshop.
64.2 He maintained steadfastly that he had provided no guarantees of performance to Mr Vrontas.
64.3 At one stage in his evidence, Mr Demos did say however “The car was going to run 10 seconds or faster. That was the original goal,”.
The subsequent conduct relied upon by the plaintiff to prove the existence of the Goal term was said to be the post formation conduct referred to in paragraphs 36 to 64 of the plaintiff’s written submissions, and refined in oral closing submissions (transcript 227 – 229).
Mr Shamsabad (for Mr Vrontas) gave particular emphasis to the following:
66.1 Messages exchanged on 29 October 2019. I have referred to these in some detail in setting out an outline of the parties’ dealings with one another earlier in these reasons. In these messages amongst other things, Mr Vrontas said to Mr Demos “fuck let’s go 9,s”. In my view, these messages indicate clearly that "9,s”, i.e. times in the 9 seconds range, were not already part of the aim if Mr Vrontas was telling Mr Demos "fuck let’s go 9,s” at this time. This is a strong indication that it had not been agreed on 30 September 2019 that it was a term of the contract that the first and second defendants were to modify the vehicle to be able to travel from 0 to 1/4 mile in between 9 and 9.5 seconds. Further, the reference to breaking the internet adds nothing specific to indicate that the term was agreed.
66.2 Messages exchanged on 3 November 2019. Once again, I have referred to these in some detail already in my earlier outline of the parties dealings with one another. These messages refer to cars running 9.50 seconds with a particular manifold. If there already was a guarantee, as the plaintiff alleges, that the car would run times between 9 and 9.5 seconds, it is difficult to see why there would be cause for comment or excitement about cars running 9,50s – i.e. 9.5 or more seconds.
66.3 Messages exchanged in June 2020 between Mr Demos and Mr Vrontas about Mr Demos’s communications with Hank Iroz about a world record. Mr Shamsabad submitted that these messages were a show of camaraderie between the two at a time in respect of their arrangements that Mr Demos was building a car that would break the world record. I do not read the messages that way. Firstly, it is clear that Mr Demos did not even know what the time for the world record was, because he had to ask Mr Iroz what they were “chasing”. Mr Iroz told Mr Demos the time was 9.4 seconds. Secondly, Mr Vrontas agreed in cross-examination that he did not know what the world record was before June 2020.
66.4 Messages exchanged in November 2020 regarding new rules of the drag racing association in Australia about the need for roll cages and parachutes. In these messages Mr Demos drew Mr Vrontas’ attention to the fact that the new rules provided that no cage was required until 9 seconds for 2013+ cars and no parachute was required until reaching 150 mph. In light of that Mr Demos suggested that he would tell the fabricator not to do a parachute and also just do the rear of the car for a cage. It was put to Mr Demos in cross-examination, and put to me in submissions, that because Mr Demos had referred to a time of 9 seconds, that was an acknowledgement that Mr Demos knew that the plaintiff wanted a 9-second car. In cross-examination Mr Demos explained that Etuners were not doing the work and the fabricator was Ktek. He explained that Mr Vrontas wanted a cage and a parachute and that in this exchange of emails he was telling him not to spend the money because he did not need a parachute and did not need a full cage. Mr Demos insisted that the reference to 9 seconds was simply because that was the time referred to in the new rules. In my view Mr Demos’ oral evidence about what he was doing in these messages is consistent with the content of the messages themselves, and they do not support the proposition that Mr Demos knew that Mr Vrontas wanted a 9-second car or that Etuners had guaranteed a car would run between 9 and 9.5 seconds.
66.5 A message at page 294 of the plaintiff’s court book. The date of the message is not clear, however the plaintiff draws attention to the fact that Mr Vrontas said to Mr Demos in the message “… now get my [expletive] car done, if you think of something to make it faster just do it…”.
67.1 Mr Vrontas made a clear and unambiguous admission that the critical words were in fact not said at all.
67.2 No other witnesses gave evidence that the critical words had been said.
67.3 There was no contemporaneous note, or for that matter subsequent note, of or reference to the words being said.
67.4 Mr Demos maintained steadfastly that he had provided no guarantees of performance to Mr Vrontas.
67.5 Although at one stage in cross-examination Mr Demos did refer to an “original goal”, that goal was to run 10 seconds or faster, not between 9 and 9.5 seconds.
67.6 There was no reference to a promise or guarantee by either Mr Demos or Etuners that the car would be able to travel a quarter mile in a time of between 9 and 9.5 seconds in the subsequent conduct relied upon by the plaintiff.
In closing submissions the plaintiff submitted (paragraph 100) that the evidence permitted the court to find that it was a term of the agreement that the vehicle would be repaired to a working and operational condition, following its catastrophic engine failure. The plaintiff also submitted (paragraph 110) that there was an essential term that the vehicle be operational and capable of achieving the performance goal. In oral closing submissions the plaintiff submitted that because on the evidence there was “a goal”, whether that be a goal of 9 seconds, 9.5, 10 seconds or some other time, it may be inferred that the car was actually operational and was capable of actually starting and travelling.
The defendants had 2 broad responses to these submissions, both of which I accept.
The defendants’ first response was that the terms sought to be relied upon had not been pleaded and that the plaintiff could not rely upon them for that reason. It is correct that the terms were not pleaded. It is also true to say that from the outset of the case counsel for the defendants made it abundantly clear that the defendants had come to court to meet the case as pleaded. Counsel for the defendants foreshadowed in his opening that if the court did not find in favour of the plaintiff’s claim that “the Goal” as pleaded was a term of the contract, the plaintiff was not entitled to retreat to a position of saying that it was a further term of the agreement that the vehicle would be operational. It seems to me that this is more or less precisely what the plaintiff has sought to do in making the submissions I have just referred to. In my view, in the way the case was conducted, the defendants are entitled to hold the plaintiff to his pleadings. It follows that the plaintiff is not entitled to seek to rely upon the above terms raised by the plaintiff in closing submissions.
The defendants’ second response was to point to the true reason why the car was not operational when it was returned to Mr Vrontas. I set out earlier a summary of the evidence about why Mr Vrontas took the car back in May 2021. The defendants submitted that Mr Vrontas elected for the work to cease because he could not afford to keep going. In written closing submissions, the plaintiff submitted a number of times that Mr Vrontas “terminated” the agreement. It was not pleaded or submitted that he did so because Etuners had breached an essential or intermediate term of the contract or had wrongfully repudiated the contract. Neither party suggested that Mr Vrontas did not have the right to call a cease to the work at any time. I do not take the plaintiff’s reference to having “terminated” the agreement as cavilling with the defendant’s submission that Mr Vrontas elected for the work to cease because he could not afford to keep going. In my view it emerges clearly from the evidence I referred to earlier that Mr Vrontas put the work on hold and asked for the car to be returned because he was either unable to or did not wish to spend any further money on it at that stage because of his own personal circumstances. It follows that the true reason the car was not operational was because Mr Vrontas put a hold on the work and asked for the car to be returned.
73.1 The vehicle was capable of attaining the Goal (as defined: i.e. “to be able to travel from zero to a quarter mile between 9 and 9.5 seconds”) (ASOC par. 17. a.) .
73.2 The defendants were able to perform their obligations to ensure the vehicle reached the Goal (as defined: above) (ASOC par. 17. b.).
73.3 The vehicle would be operational (ASOC par. 17. c).
73.4 The contract would be honoured (ASOC par. 17 d).
73.5 The vehicle would be in a road-worthy condition (ASOC par. 17. e).
It can be seen that the first 2 representations were put in terms of a representation being made about “the Goal” as defined. This is the same “the Goal” alleged to have formed an oral term of the contract. I have already found that no such oral term was stated or agreed. It follows, and I find for the same reasons, that the first 2 pleaded representations were not made.
As to the representation that the vehicle would be operational, the defendant did not give evidence that an express representation was made to him to that effect. The plaintiff did not suggest in closing submissions that such a representation had been expressly made. I am not satisfied on the evidence before me that such a representation was made.
The alleged representation that the contract would be honoured falls into the same category. For the same reasons, I am not satisfied on the evidence before me that such a representation was made.
The same may be said of the representation that the vehicle would be in a road-worthy condition. For the same reasons I am not satisfied on the evidence before me that such a representation was made.
The plaintiff alleged that the defendants made false or misleading representations in contravention of section 29 in a number of respects. I will deal with each one in turn.
The plaintiff pleaded that the defendants contravened section 29 by falsely misrepresenting the standard and quality of their work pursuant to the contract.
In written submissions this was put as a contravention of section 29(1)(b), which provides that “A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: … (b) make a false or misleading representation that services are of a particular standard, quality, value or grade”.
The plaintiff submitted that the defendant had represented to him that they were experts in the field, who were capable of repairing the vehicle, and that it would achieve “a high-performance goal”. In support of the submission that the defendants had represented that it would achieve a high-performance goal, the plaintiff referred to the evidence of Mr Demos in cross-examination in which he said “The car was going to run 10 seconds or faster. That was the original goal”.
The defendants did not dispute that the first 2 representations were made, i.e. that they were experts in the field and were capable of repairing the vehicle. However they denied that the 3rd representation was made.
It is important to understand that the so-called “high-performance goal” the plaintiff was referring to in these submissions was not “the Goal” defined in the pleading as oral term of the agreement.
It was not put to Mr Demos when he gave his evidence that he made such a representation to Mr Vrontas at the time he entered into the contract with Etuners, or, for that matter at any subsequent time. Mr Vrontas did not give evidence that such a representation had been made to him. In all the circumstances, on the evidence before me, I am not satisfied that such a representation was made.
The plaintiff submitted that in the event that the representation was made the representation had a tendency to lead the plaintiff into error and gave rise to a promise which was not in any way satisfied because upon a physical examination of the vehicle, it was agreed that it is incomplete, unable to operate or start and cannot achieve its performance goal.
In my view, this submission fails to have regard to the fact as to why when the parties examined the vehicle (which they did for the purposes of the case on 6 March 2024) it was incomplete, unable to operate or start. It was in that state for the reasons I gave earlier. That is because in May 2021, Mr Vrontas put a hold on the work and asked for the car to be returned.
The plaintiff pleaded that the defendants contravened section 29 by inaccurately representing to the plaintiff a sponsorship discount related to the provided parts.
The plaintiff pleaded that the defendants made guarantees in relation to the due care and skill owed to the plaintiff, being that they were able to deliver upon “the Goal” under the contract and therefore breached sections 60 and 61 of the Australian Consumer Law. The reference to “the goal” in this respect was a reference to the same “the Goal” defined as an oral term of the agreement.
It seems to me that the pleaded claim must stand or fall according to the fate of the court’s finding about the existence or otherwise of “the Goal”. Consistent with the finding I have already made, I am not satisfied that any guarantee was given to deliver upon “the Goal”.
I might add, there was no suggestion and no evidence was put before the court to support the proposition that the work Etuners actually did had not been rendered with due care and skill.
The plaintiff pleaded that the defendants “violated” sections 20 and 21 of the Australian Consumer Law by engaging in unconscionable conduct in the course of delivering the goods and services. In particulars it was stated that the defendants “failed to disclose or furnish a cost estimate pertaining to the specified Goal”.
In written closing submissions it was put that the conduct of the defendants in failing to provide a build estimate to the plaintiff, at any point in their dealings, was unconscionable.
To the extent that the particularised claim refers to “the specified Goal”, as I understand it and read the pleading this too is a reference to “the Goal” as defined in relation to the oral term of the contract. As such it is affected by my earlier finding that there was no such specified Goal.
Nevertheless the parties did make more detailed submissions on the question of unconscionability, which I will now seek to address.
The plaintiff submitted that the defendants were in a position of superior bargaining power by virtue of their expertise and exercise of wide discretion in respect of the parts to be purchased and labour applied to the vehicle. I do not accept the submission that the defendants had a wide discretion in respect of the parts to be purchased and labour applied to the vehicle. This is contrary to the evidence before me which establishes that, with few exceptions, before any parts were ordered or purchased Mr Demos consulted Mr Vrontas and obtained his approval to proceed. This is demonstrated very clearly in the messages before the court. Further, it was part of the arrangement that Mr Demos (or more correctly Etuners) would not order any parts until Etuners had been put in funds. It was also the case that Mr Demos and Mr Vrontas were in regular close contact with one another about the nature of the work to be undertaken on the car.
The defendant submitted that to the extent there was any difference in bargaining power between the parties, it was not explored in the evidence and the difference was most likely modest. I have to agree.
The plaintiff submitted that the failure of the defendants to disclose a total estimate of works and corresponding timeframe for completion, in respect of their intended conduct in completing the goal, led the plaintiff to a state of confusion in respect of which works were occurring and had to be paid for. Moreover, it was submitted, that the failure to do so, posed a risk to the plaintiff who could not appraise the scope of works and his ability to finance the same, leaving him with a clear risk that he may not have the finances to complete the vehicle. It was submitted that the defendants were aware of that risk and nonetheless failed to disclose to the plaintiff at any time any estimate for completion of the works.
To the extent that this submission was based on the proposition that the defendant should have provided an estimate for their work to be done in completing the goal, if the reference is to “the Goal”, I have found that there was no such goal.
110.1 Judgment for the defendants.
110.2 Plaintiff to pay the defendants’ costs of the proceedings.
Vrontas
Demos and Etuners Group Pty Ltd [2025] NSWDC 156
The exchange of messages on 29 October 2019 goes on. Mr Demos tells Mr Vrontas “The turbo manifold adapter is insane .. made by Elmer Racing .. check them out .. I've got nothing but the best as promised”. Mr Vrontas begins his next message “Awesome!! … I've come this far might as well go the full Hog” and the enthusiasm in both of their text messages continues.
In an exchange of messages on 1 November 2019, Mr Demos told Mr Vrontas that he would like to get the car into the workshop the next week to start pulling the engine out and dismantling it so he could see if they need other additional parts. Mr Demos also said that he had updated invoicing and asked for an email address for Mr Vrontas. Mr Vrontas and Mr Demos made arrangements for Mr Vrontas to have the car brought in the following Thursday (7 November).
In the same exchange of messages on 1 November 2019, Mr Demos confirmed that he had sent Mr Vrontas an updated invoice. This was invoice number 347 dated 1 November 2019.
In a message on 2 November 2019, Mr Vrontas told Mr Demos he had transferred the funds that morning for payment of the invoice.
In messages in the morning on 3 November 2019, Mr Demos acknowledged that Mr Vrontas had made the payment and said he could not wait to catch up the next week, “We have lots to discuss”. A couple of hours later Mr Demos sent a message to Mr Vrontas suggesting he look at some websites one of which was of a company called KakaRakis that made manifolds. Mr Demos said “I'm spending all the inheritance .. you(r) kids are going to call me soon!!”. Mr Vrontas replied “That looks insane !!!! , I want now !!”. Mr Demos then said “Lol .. I'm getting pricing mate .. Building this like it's my own.. (emoji) Cars have run 9,50s with this manifold .. I want that!!.” Mr Vrontas replied with the words “That’s what I want to hear” and four clapping hands emojis and an emoji showing grinning teeth. The exchange continued.
Later, in a message in the afternoon the same day (3 November 2019) Mr Vrontas told Mr Demos “We need to make Roxanne pretty as well as lethal , I want her on a cover of a magazine so we will make sure her engine bay SCREAMS NO BITCH!!!!!!!!!!!!!!!! IS FASTER THAN ME … Yep it's got to look fast as well as go fast Some ideas in wraps would be good when we catch up Thursday …”. Mr Demos replied “Ok mate , I've got a solid plan and lots to discuss .. wheel and tyre package for racing will be needed and I've got some other ideas as well .. let's break the internet.”.
In a message on 4 November 2019, Mr Vrontas confirmed that the car was being picked up at 9:30 AM on Thursday from Matraville and should arrive at 10.30 depending on traffic. The Thursday would have been 7 November 2019.
In written submissions this was put as a contravention of section 29(1)(g), which provides that “A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: … (g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits”.
The plaintiff’s assertion of a contravention of section 29(1)(g) is based almost entirely around the use of the phrase “sponsorship discount” on Etuners’ invoices to the plaintiff.
The plaintiff submitted that it was uncontroversial in the matter that the defendants used the phrase “sponsorship discount” on invoices as a representation of cash paid by Mr Vrontas. I have to agree. It was also uncontroversial that Mr Vrontas in fact made cash payments to Etuners on a number of occasions.
Mr Demos gave evidence, which I accept, that he told Mr Vrontas he (or more correctly Etuners) would describe any cash payments made by Mr Vrontas as “sponsorship discount” on their invoices. This is entirely consistent with what Mr Vrontas had put in his own affidavit, but disclaimed knowledge of at the hearing.
Further, there is no suggestion that there was any sponsor involved. Mr Vrontas did not give evidence that Mr Demos had told him that a particular sponsor was involved and contributing money towards the car.
Having regard to all those matters, in truth no representation was made that the car had a sponsorship.
The defendant submitted that none of these matters were explored in evidence or put to Mr Demos, and that there was no evidence that there was a common commercial practice or ethical considerations compelling such estimates to be provided. I accept those submissions.
In my view the plaintiff’s submission also runs counter to the obvious enthusiasm and disregard for cost with which Mr Vrontas embraced the project as disclosed in the messages passed back and forth between Mr Vrontas and Mr Demos, many of which I have referred to when setting out an outline of the parties’ dealings with one another earlier in these reasons.
For those reasons, and having regard to the evidence before me, I am not satisfied that either of the defendants engaged in unconscionable conduct as alleged.