BMW Australia Finance Limited v Nelson
[2010] WADC 36
•24 MARCH 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BMW AUSTRALIA FINANCE LIMITED -v- NELSON [2010] WADC 36
CORAM: STAVRIANOU DCJ
HEARD: 19, 20, 21 & 22 OCTOBER, 3 & 18 DECEMBER 2009
DELIVERED : 24 MARCH 2010
FILE NO/S: CIV 556 of 2005
BETWEEN: BMW AUSTRALIA FINANCE LIMITED (ACN 007 101 715)
Plaintiff
AND
GRAHAME BRETT NELSON
Defendant
Catchwords:
Contract - Hire purchase - Notices pursuant to Hire Purchase Act 1959, s 13(1), s 13(3) - Effect of overstatement
Contract - Hire purchase - Service of notice pursuant to s 13(1), s 13(3) of Hire Purchase Act 1959
Contract - Hire purchase - Whether owner's conduct harsh and unconscionable - Hire Purchase Act 1959, s 13, s 15, s 16, s 24
Estoppel - Promissory estoppel - General principles of promissory estoppel - Representations must be clear and unambiguous - Reliance - No estoppel
Legislation:
Hire Purchase Act 1959, s 13, s 15, s 16, s 24
Result:
Judgment for the plaintiff
Counterclaim dismissed
Representation:
Counsel:
Plaintiff: Mr R A C Cullen & Ms H K Nore
Defendant: Mr K C Staffa
Solicitors:
Plaintiff: Cullen Babington Hughes
Defendant: Staffa Lawyers
Case(s) referred to in judgment(s):
Austotel Pty Ltd v Franklins Self‑Serve PtyLtd (1989) 16 NSWLR 582
Commonwealth v Verwayen (1990) 170 CLR 394
Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR 23
Esanda Finance Corporation Ltd v Kett & Ors [1993] 9 SR (WA) 65
Nelson v BMW Australia Finance Ltd [2009] WASCA 13
Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387
STAVRIANOU DCJ:
Introduction
In September 1999 Mr Nelson entered into a hire purchase agreement ("the agreement") under which BMW Australia Finance Limited ("BMW") financed his purchase of a new car.
BMW claims that in 2004 Mr Nelson breached his payment obligations pursuant to the agreement. It repossessed the car and sold it.
BMW claims $25,694.10 plus interest pursuant to the agreement.
Mr Nelson claims that BMW's conduct was harsh and unconscionable. He alleges that because notices given pursuant to the Hire Purchase Act 1974 were inaccurate and not properly served BMW cannot recover any amount from him. He makes numerous allegations concerning its conduct.
Mr Nelson further alleges that BMW's resale of the car did not result in the best price which could reasonably have been obtained.
Mr Nelson counterclaims for payment of all money paid by him to BMW. He also claims aggravated and exemplary damages.
The facts
In 1999 Mr Nelson decided to purchase a new car. He went to a car yard and spoke to a salesman, Mr James Denny. After agreeing price Mr Nelson was referred to Mr Dennis Smallwood to arrange finance. Mr Denny and Mr Smallwood were servants or agents of BMW.
On 21 September 1999 the agreement was signed.
Pursuant to the agreement, Mr Nelson was required to pay BMW 60 monthly instalments of $1,305.88 and a final payment of $47,000.
The total amount payable to BMW by Mr Nelson inclusive of charges and fees and after allowance for a trade‑in was $125,352.80.
The facts which follow accord with the Transaction Inquiry Report ("the transaction report") maintained by BMW. The transaction report includes file notes made by employees of BMW. Save for a payment of $650 made on 1 July 2004, there was no evidence or suggestion that Mr Nelson made payments which were not recorded in the transaction report.
From 21 September 1999 to 21 September 2000 Mr Nelson paid the monthly instalments on the due dates.
The October 2000, December 2000, January 2001, February 2001 and February 2003 payments were dishonoured.
In July 2001 Mr Nelson was having difficulty meeting his financial commitments. From about that time there were conversations between Mr Nelson and employees of BMW including Maria Lowers and Ray Corless concerning payment of the monthly instalments.
Between 29 January 2001 and 22 July 2004 BMW served on Mr Nelson eight notices of intention to repossess the car because of his failure to make payments.
Mr Nelson made promises on many occasions to clear the arrears and bring the instalments up to date.
On 28 October 2002 Mr Nelson telephoned BMW and said he would pay $500 on 31 October 2002 and all the arrears on 7 November 2002. $500 was paid on 1 November 2002. No payment was made on 7 November 2002.
On 17 December 2002 Mr Nelson made a payment which reduced the account balance to less than $1.
On 4 February 2003 Mr Nelson telephoned BMW and said he would make a payment of $500 on 6 February 2003. No payment was made.
On 7 and 21 February 2003 Mr Nelson paid $500 to BMW.
On 28 February 2003 the arrears were $4,126.66.
On 27 March 2003 Mr Nelson paid $1,000.
On 2 April 2003 Mr Nelson paid $3,450 to collection agents engaged by BMW. The payment created a credit in the account of $323.34.
Mr Nelson did not pay the instalment of $1,305.88 due on 21 April 2003.
As at 20 May 2003 the account was $1,277.54 in arrears. On that day Mr Nelson telephoned BMW and promised to pay $300 on that day, $300 on 21 May 2003 and the balance by 23 May 2003.
The transaction report for 27 May 2003 contains the following notation:
"Under Arrangement Grahame called, promised to pay $300 – 28/5, $300 – 29/5 and $300 – 30/5 at bank. He will then pay the remainder in instalments to be up to date by the time the next inst is due in June. Has been posted a new DD form to start paying weekly in June via DD. He was also advised that we will not enter into any further arrangement – 30/5/2003 – 12:49."
Mr Nelson made payments of $300 on each of 20 May 2003, 26 May 2003 and 28 May 2003.
The payment on 28 May 2003 reduced the arrears to $1,683.42.
On 30 May 2003 BMW posted a direct debit form to Mr Nelson.
The transaction report contains a note dated 5 June 2003 as follows:
"Spoke to Grahame, promised to pay $300 at bank today and to maintain deposits as per arrangement – 10/5/2003 – 11:20."
On 13 June 2003 and 23 June 2003 Mr Nelson paid $300 to BMW. The payment on 23 June 2003 reduced the arrears to $2,389.30.
On 2 July 2003 an employee of BMW sent an SMS to Mr Nelson requesting that he call, failing which a repossession agent would be engaged. Mr Nelson called BMW on that day and said that he thought his wife (Barbara Nelson) was paying $300 per week and did not know why that was not occurring.
On 3 July 2003 Mrs Nelson rang and advised BMW she would pay $400 on that day, a further $750 in the following week and then $300 per week.
Between July 2003 and December 2003 Mr Nelson paid BMW:
July 2003$1,400.00
August 2003 $2,500.00
September 2003 $1,005.88
October 2003 $2,001.66
November 2003 $650.00
On 6 August 2003 Mr Corless sent an email to Mr Nelson advising that the $300 per week arrangement had been rescinded and that Mr Nelson must pay the full amount outstanding and maintain payments of $1,305.88 per month. Reference was made in the email to, if necessary, engaging a collection agent to recover the car.
On 19 August 2003 BMW wrote to Mr Nelson concerning his payments. The letter was addressed to a house in Mosman Park.
On 22 August 2003 Mrs Nelson spoke to an employee of BMW. In the conversation she was told that $300 per week would not cover the instalments. Three instalments of $300 and one of $406 were required. In the conversation Mr Nelson's address was updated.
On 8 October 2003 BMW wrote to Mr Nelson concerning payment. The letter was addressed to 35 Cross Street, Swanbourne. By that date the arrears had reduced to $751.06.
On 11 December 2003 BMW sent a reminder letter to Mr Nelson.
As at 30 December 2003 the arrears were $2,617.64. On that day Mrs Nelson rang and advised BMW that all of the arrears would be paid in full by 8 January 2004. Only $300 was paid by that date and the arrears on the account were $2,317.64.
Between January 2004 and April 2004 Mr Nelson paid BMW:
January 2004 $2,957.64
February 2004 $950.00
March 2004$1,100.00
April 2004$900.00
On 21 January 2004 Mr Nelson's arrears were $3,623.52. That sum included the instalment due on 21 January 2004.
On 21 January 2004 Mr Nelson paid $2,317.64 to BMW leaving $1,305.88 outstanding.
Reminder letters were sent to Mr Nelson in March 2004.
On 22 April 2004 BMW sent Mr Nelson a notice of intention to repossess.
On 30 April 2004 Mrs Nelson rang BMW and said $400 would be paid that week. $500 was paid on that day. In the conversation she said all of the arrears would be paid by the end of May. She was reminded another instalment would have fallen due by that date.
On 5 May 2004 Mr Nelson sent an email to BMW. It read:
"Dear Sir
I refer to previous discussions concerning my vehicle lease agreement.
I confirm that my wife will, as previously discussed, be paying the amount of $500 into the usual account tomorrow (6 May 2004). I understand that will bring the account up to date to 20 April. Further payments will then be made to ensure that there are no arrears on the account by 20 May 2004.
I believe it to be timely to write to you about this account and provide you with background as to matters which you are not aware of and which will explain some of the difficulties I have had over the last 3 years. I am providing this information to you to enable you to consider my request that BMW Finance re‑finance the lease for a further term.
I acquired the vehicle in 1999. At that time I was a partner in a law firm in Perth.
In January 2001, I was obliged to dissolve the law firm, following my discovery of serious breaches of the partnership agreement by one of my partners. The partner in question is now on fraud charges which according to the press amount to $23 million.
The immediate consequence of the dissolution of the law firm was that my income was reduced to less than half what it had been and, as a result, this made it extremely difficult for me to maintain my payments under the lease.
I have done so because I did not want to find that upon the vehicle being sold there was a substantial shortfall as against the amount owing to BMW Finance. In this respect it was clear that at any given time the amount owed exceeded the market value of the car.
Contrary to what I was told by the BMW dealer when I acquired the car, it would appear that the market value of the car, if sold, is still likely to be less than the residual value under the lease.
Since the dissolution of the law firm I have been seeking to restore my income to something like what it been previously. Until recently, I was unable to do so.
Just over a month ago I took up an offer of employment overseas. This has had the result of substantially increasing my income, and to the figure that it had been before the dissolution of the law firm partnership.
I understand that my circumstances are unusual, but I trust you will now understand the difficulties I have been under over the past 3 years and agree to my request to lease the vehicle for a further term. Despite those very significant difficulties I have, as you are aware, still maintained my payment commitments.
Needless to say, if you require further information to consider this proposal, please don't hesitate to let me know. Yours faithfully
GB Nelson."
On 6 May 2004 a payment of $500 was received leaving a balance of $1,473.52. On that day Mrs Nelson called. She said Mr Nelson would call when he could. She was told by an employee that the Third Schedule Notice had expired and the full arrears needed to be paid.
On 18 May 2004 BMW sent a reminder letter to Mr Nelson. In the email to which the letter was attached BMW stated that the arrears were $1,123.52.
In May 2004 Mr Nelson paid $1,550. In June 2004 he paid $300. As at 30 April 2004 the arrears shown on the transaction report were $1,973.52. As at 30 June 2004 the arrears on the transaction report were $2,685.28.
In July 2004 Mr Nelson made payments to BMW as follows:
1 July 2004$650
8 July 2004$350
15 July 2004 $300
22 July 2004 $300
At trial the manner in which the payment of $650 was dealt with by BMW became a matter upon which Mr Nelson placed reliance in relation to his claims that BMW had acted in a harsh and unconscionable manner. At this stage I note that the payment was made by Mrs Nelson by cheque.
On 22 July 2004, BMW served written notice on Mr Nelson of its intention to retake possession of the car. It is this notice which is relied upon by BMW as the notice required to be given pursuant to the Third Schedule to the Act. The notice included a statement of arrears of $3,341.16 which did not take into account the payment of $650 made on 1 July 2004 or the payment of $300 made on 22 July 2004.
No payments were made by Mr Nelson to BMW after 22 July 2004.
On 29 July 2004 Mr Nelson rang and spoke to Mr Corless. In the conversation Mr Corless told Mr Nelson that the arrears would need to be repaid immediately or the car returned to avoid repossession. In the conversation Mr Nelson told Mr Corless he intended to pay $700 per week in discharge of arrears.
On 30 July 2004 Mrs Nelson rang BMW and said that she had paid $650 on 1 July 2004 which had not been taken into account.
On 2 August 2004 Mr Nelson sent an email to BMW which included the following:
"As you know, it has been our practice for months to make weekly payments. Until we heard about the repossession notice, we had understood that all payments were up to date with the exception of the recent July instalment which would be paid in the usual way over the coming weeks. Put simply, the notice was a bolt from the blue.
Barbara tells me that your records don't record at least one payment we have made, an amount of $650 which was made in early July. We are trying to find the receipt for that payment. In the meantime she has spoken to Home Building Society in Perth (upon whom the cheque was drawn) about this and they have confirmed that the cheque in question for an amount of $650 was presented and paid. She has asked them to confirm which account the payment was made into and they're attending to this. Her cheque book notation for the cheque is 'BMW Finance'. As soon as we hear from BHS, we will confirm the position with you.
If, as seems likely, the payment has not been credited by you, my concern is that other payments have similarly not been credited. I note that you are confirming what payments are, according to your records, outstanding and are emailing that information to Barbara. She will then check it against her own records and I will make good any shortfall, if there is any."
Insofar as the reference to HBS is concerned in cross‑examination Mr Nelson agreed that he did not provide BMW with any receipt or confirmation of payment until early 2007 when a copy of the cheque was discovered.
On 2 August 2004 BMW took possession of the car.
On 3 August 2004 Ms Lowers sent an email to Mr Nelson requesting a facsimile number as BMW was unable to email financial statements. Mr Nelson did not reply by email or provide a facsimile number.
On 3 August 2004, BMW served written notice on Mr Nelson pursuant to the Fourth Schedule to the Act.
The notices dated 22 July 2004 and 3 August 2004 were posted to Mr Nelson at 35 Cross Street, Swanbourne. Mr Nelson was living in Bahrain at the time. His daughter who was living at 35 Cross Street address received each notice and forwarded them to him.
On 11 August 2004 Mr Nelson advised BMW by email that he had accepted its repudiation of its contractual obligations and had terminated the agreement. The email reads:
"Dear Maria
I refer to my emails to Brian Siew and yourself which are set out below. Those emails follow on from (a) my telephone discussion with you and (b) my wife's telephone discussion with Brian Siew, in each case on Thursday, 29 July 2004.
Those discussions resulted from BMW Finance issuing a repossession notice dated 22 July 2004, in which it was claimed that there were arrears of $3,341.16 due under my HP Agreement with BMW Finance (Agreement 354003) relating to the motor vehicle 523i 1999 (Registration Number 90 DE) ('HP Agreement').
The repossession notice also stated that unless the arrears were paid on or before 29 July 2004, BMW Group Financial Services intended to re‑take possession of the vehicle. The repossession notice was received on 29 July 2004.
I confirm having received no prior notice or contact from BMW Finance about the alleged arrears. I have to say at the outset that I am astounded by that given that you have, of course, been communicating with me by email for several months now in relation to, amongst other things, the possibility of re‑financing the HP Agreement when it expires in a few weeks time. A re‑finance application form was actually recently received.
During my telephone discussion with you, you advised me that there were arrears of $3,041.16 under the HP Agreement. I confirm having queried this with you and advised you that I was not aware of any arrears. I believe I said words to the effect that 'I would be staggered if that was the case because payments are being made on a weekly basis'.
The amount you mentioned to me as alleged arrears comprises:
1.What you claim to be arrears prior to the July payment; and
2.The July 2004 payment.
You advised me that unless the amount of $3,041.16 was paid immediately, the vehicle would be repossessed. You refused my request for me to be allowed some time to establish what, if any, payments were outstanding.
Subsequently, I arranged for my wife to call Brian Siew to discuss the matter, because it has usually been the case that she, not me, would make the payments under the HP Agreement. As you know, the payments are made into BMW Finance's Commonwealth Bank Account direct.
My wife spoke to Brian Siew at length shortly after my telephone conversation with you, also on 29 July 2004. Where matters got to in her conversation with Brian Siew is summarised in my email to him of 1 August 2004 which is set out below. I confirm also having forwarded that email on to you on 2 August 2004 in immediate response to an automatically generated 'answerback' email that Brian was away from the office until 16 August 2004.
Later on 2 August 2004, the vehicle was re-possessed.
We had no response at all from Brian Siew in relation to the matters that were discussed with Brian on 29 July 2004 and which are referred to in the emails and no response from you to my email until 3 August 2004, when you asked for a fax number to which the information requested might be sent. This was of course after the car had been repossessed.
The repossession of the car occurred notwithstanding:
(a)my wife's clear advice to Brian Siew that based upon the records which were immediately to hand, that there was at least 1 payment (an amount of $650) which Brian Siew confirmed to her we had not been credited with and her concerns that that other payments had not been credited;
(b)my follow up email to Brian Siew on Sunday, 1 August 2004; and
(c)my email to you on the morning of 2 August 2004 when I received an email from your office indicating that Brian Siew was away until 16 August 2004. That email should have been received by you several hours before the repossession agent arrived to repossess the car. He told me he had been in contact with you earlier in the day and he was not prepared to speak to you again about the matter.
As noted in my email to Brian Siew dated 1 August 2004, on Friday, 30 July my wife spoke to her bankers, Home Building Society, and they confirmed that the cheque for $650 had been presented for payment and paid.
The Building Society has now confirmed that the cheque in question was drawn in favour of BMW and paid to the Commonwealth Bank. They have also provided us with a copy of the cheque and confirmed that it was honoured (my wife's bank statement also confirms this to be the case).
In addition, so far as the July payment is concerned, as you are aware, I have for many months been permitted to pay the relevant monthly amount over the ensuing 4 weeks. Accordingly, that amount should never have been included in the repossession notice as arrears.
As things stand, neither Brian Siew nor you were able or, apparently, willing to demonstrate to us prior to the car being repossessed that there are any arrears under the HP Agreement or that those arrears were, despite having been given every opportunity to do so.
It is clear on any basis that the amount claimed in the repossession notice to be owing ($3,341.16) was wrong. So also was the amount which you separately advised me was in arrears ($3,041.16) and which you stated must be paid immediately to prevent the car being repossessed. As noted above, you were not prepared to budge from that position.
It follows that the repossession notice is invalid and, accordingly, that BMW Finance's actions in repossessing the car were unlawful.
In my discussions with you on Thursday, 29 July 2004 I said that if it was found that there were any arrears, I would pay them. You chose to ignore this.
In my email to Brian Siew set out below I also stated that if there were found to be any arrears, I would pay them. This, too, was ignored.
Your conduct is all the more distressing, bearing in mind our difficulties over the last three and a half years, resulting from circumstances that I have previously made you fully aware of. Notwithstanding those difficulties I have continued to honour my payment obligations under the HP Agreement. The HP Agreement has been in place for almost 5 years and is due to expire next month. All of which makes your conduct even more bizarre.
As a result of its heavy handed and unlawful actions, BMW Finance is in serious breach of its obligations under the HP Agreement, and I am not prepared to put up with the nonsense which has occurred over the last few days.
I give you notice that I accept BMW Finance's repudiation f its contractual obligations and accordingly terminate the HP Agreement effective forthwith.
In doing so, I reserve all my rights, including my rights which arise from BMW Finance's wrongful conversion of the car. These include damages for the expenses which I have incurred as a result of BMW Finance's actions.
Any further correspondence other than emails should be directed to me at PO Box 11563, Manama, Kingdom of Bahrain.
Yours faithfully
Grahame Nelson."
On 12 August 2004 Ms Lowers replied to Mr Nelson by email that the repossession notice issued on 22 July 2004 expired on 27 July 2004 and that this was not the first time it was issued.
On 15 August 2004 Mr Nelson sent an email to BMW and stated:
"I don't need reminding that it has been a struggle for us to make the payments after my law firm partnership dissolved in early 2001. I have previously made you aware about all of that. But the fact of the matter is, that despite all the very considerable difficulties I have had over the last three and a half years, as a result of a very substantial reduction in my income over that period, I kept my payments going. However, that clearly counts for nothing in your eyes.
The fact that repossession notices have been issued in the past is totally irrelevant, except that this evidences that whenever there has previously been a difficulty, I have always paid what was owing.
As the hirer of the vehicle I am entitled be given a fair opportunity to pay what is owed, if in fact there are arrears. That opportunity is not afforded me if you claim a higher amount than is in fact owed and refuse to move from that position. The amount you claimed was, on any basis, incorrect for the reasons mentioned in my previous email.
Consequently, your repossession notice was invalid and the actions of BMW Finance in taking possession of the vehicle were unlawful and a very serious breach of its obligations to me.
Your statement that the notice expired on 27 July is also incorrect.
That you should have proceeded to repossess the vehicle despite my telling you and Brian Siew that if there were found to be any arrears, I would pay them, in circumstances where he and you knew full well that we were disputing that there were any arrears at all, and without even bothering to check whether additional payment had been made, is quite bewildering. Brian Siew even had the effrontery to tell my wife that he was 'too busy' to check out whether additional payments (including the $650 payment) had been made.
I note you had nothing to say in your email about the $650 payment so I presume that you have now located it.
Your actions have caused me very considerable financial losses, which are continuing, and I want to be compensated for those losses. In the meantime, I continue to reserve all my rights.
I am bitterly disappointed that matters have come to this pass."
On 20 October 2004 BMW sold the car in Melbourne by public auction for $26,000.
Between when BMW took possession of the car and when it was sold Mr Nelson did not take any step to pay any arrears or to reinstate the agreement.
On 11 January 2005 Mr Nelson sent an email to BMW as follows:
"Your demand dated 29 December 2004 has been forwarded on to me in Bahrain.
I reject out of hand your demand. My position in relation to this matter is set out in my emails of 12 and 15 August which, for good order, I have set out below.
I also note for the record that I have never received any response to the very serious matters referred to in those emails. This is, of course, because you are fully aware that everything that I said in the emails is correct.
I look forward to contesting this matter in legal proceedings. I will also counterclaim for the substantial losses which I incurred as a result of your default.
Please also be advised that the vehicle incorporated property belonging to me and not to BMW Finance, namely the special number plates. I have received no account from you in respect of these items. I expect and require these to be delivered up to me or to the relevant licensing authority on my behalf. Please confirm that this has been or will be done.
My address is as stated in my email to you of 12 August 2004 below PO Box 11563 Manama, Kingdom of Bahrain. Kindly address further correspondence to me at that address.
I have to shake my head in disbelief when I think of the problem you have created for BMW Finance.
I continue to reserve all my legal rights."
At trial there was no evidence from Mr Nelson as to the substantial losses referred to in the email.
BMW filed the writ of summons in this action on 17 March 2005. By the writ BMW claimed $30,329.05 plus interest pursuant to the agreement.
On 18 March 2005 Mr Nelson emailed BMW's solicitors. He reiterated the contents of his emails of 11 August and 15 August 2004 to BMW and stated he was overwhelmed by BMW's negligence, recklessness and appalling lack of business ethics.
Does the notice dated 22 July 2004 comply with s 13(1) of the Act?
Section 13 of the Act reads:
"(1)Subject to this section, an owner shall not exercise any power of taking possession of goods comprised in a hire‑purchase agreement arising out of any breach of the agreement relating to the payment of instalments until he has served on the hirer and every guarantor a notice, in writing, in the form of the Third Schedule and the period fixed by the notice (being not less than seven days after service of the notice) has expired.
(2)...
(3)…
(4)…"
If an owner fails to serve a Third Schedule Notice the owner is not precluded from recovery of monies due under the agreement upon repossession: Esanda Finance Corporation Ltd v Kett & Ors [1993] 9 SR (WA) 65 at 66 per Sadleir DCJ. A breach of s 13 in relation to a Third Schedule Notice does not by any provision of the Act involve any civil law consequences. It may be wrongful to the extent that a hirer has an action for breach of statutory duty: Else‑Mitchell and Parsons, "Hire Purchase Law", 4th ed (1968) at 114.
The Third Schedule to the Act requires the notice to:
1.Identify the agreement.
2.Advise the hirer of the owner's intention to retake possession if payment of the arrears is not made by a certain date.
3.Provide a statement of the total amount payable.
4.Provide a statement of the amount paid or provided by the hirer to a specified date.
5.Provide a statement of the arrears under the agreement to a specified date.
Mr Nelson contends that the notice did not comply with s 13(1) of the Act. He submits that the notice must precisely state the arrears of instalments and the misstatement of the arrears has deprived him of his statutory rights.
It is alleged that the amount of the arrears of instalments was wrong because it exceeded the amount owed. It is further alleged that it included claims for alleged costs and fees for which no written demand had been served and was not for monies due.
The notice relied upon states the arrears to 21 July 2004 to be $3,341.16. That sum included an amount of $461.90 related to collection costs and did not take account of the $650 paid on 1 July 2004 and $300 paid on 22 July 2004. Ms Lowers explained that the $300 was not taken into account in the notice because the notice had been issued at 1.10 pm and the banking was done at 3.30 pm. She did not know of the $300 when the notice was issued by her.
The sum of $461.90 comprised amounts particularised as follows:
23 February 2000: Dishonour fees $1.10
22 December 2000: Dishonour fees $1.10
22 January 2001: Dishonour fees $1.10
6 February 2001: Dishonour fees $10.00
22 February 2001: Dishonour fees $1.10
16 August 2001: Collection costs $150.00
8 January 2003: Dishonour fees $2.50
7 May 2003: Collection costs $29.50
7 May 2003: Collection costs $265.50
Total$461.90
At the commencement of the trial BMW's claim included the sum of $461.90. Mr Nelson's case is that as there had been no written demand the claim could not succeed. Ultimately the claim was abandoned by BMW.
The transaction report shows that as at 21 October 2003 the only sum outstanding was $1,305.88 (the instalment due on that date). By that date Mr Nelson had paid $461.90 which had been credited against the collection costs.
BMW accepted that it had applied $461.90 paid by Mr Nelson to collection costs instead of being applied to reduce the balance of instalments. Accordingly, $1,929.26 was due as at 22 July 2004 calculated as:
Amount stated in notice $3,341.16
Less dishonour & collection costs $461.90
Less payments not credited $950.00
Balance$1,929.26
Mr Nelson pleaded that only 59 payments were due between 27 September 1999 and 22 July 2004. He had also pleaded in an earlier defence that $624.22 was owing as at 22 July 2004. Mr Nelson's contention was that because of the agreement to pay the monthly instalments in arrears and the payment to be made on 22 July 2004 was not due when the notice issued.
Mr Nelson's case as finally amended at trial was that because of an arrangement made with BMW he was $226.48 in credit as at 22 July 2004. The sum of $226.48 is based upon payments made during the period January 2004 to July 2004. However, it fails to take into account that as at 30 December 2003 there was $2,617.64 in arrears. In written closing submissions Mr Nelson stated that at worse the arrears as at 22 July 2004 were $623.38.
I am satisfied that the misstatement of arrears by the omission of the $650 and the inclusion of the sum of $461.90 does not render the notice ineffective. It was valid notwithstanding it referred to the incorrect arrears. $1,929.26 was due as at 22 July 2004. BMW made clear by the notice that it intended to repossess unless the arrears were paid. I am satisfied that the notice was valid and effective and complied with the Act.
Does the notice dated 3 August 2004 comply with s 13(3) of the Act?
Section 13(3) of the Act requires an owner to serve on a hirer within 21 days of taking possession a written notice in the form of the Fourth Schedule.
If the Fourth Schedule notice is not served as required by the Act then the rights of the hirer under the hire purchase agreement cease and determine (s 13(4) of the Act).
The form reads in part (a):
"If, within 21 days; you require the owner, by notice in writing signed by you or your agent, to redeliver the goods to you and if, within 14 days after giving the notice, you reinstate the agreement by paying the arrears and remedy the following breaches of the agreement (or pay the owner's expenses in remedying them):
The owner's estimate of the amount you must pay to reinstate the agreement is –
Arrears of instalments $.........
Costs of storage, repair or maintenance $.........
Cost of repossession $.........
Cost of redelivery $.........
Total: $........."
The form contains an alternative and reads:
"(b)If, within 21 days, you give notice of your intention to finalise the agreement and pay the balance due under the agreement and cost of the repossession:
The owner's estimate of the amount required to finalise the agreement is —
Total amount payable under the agreement $.................
Less deposit and instalments paid $.................
Balance due under agreement $.................
Less statutory rebates $.................
Add costs of repossession $.................
Storage, repair or maintenance $.................
Total $................."
Mr Nelson's case is that the notice dated 3 August 2004 does not comply because it overstates the arrears of instalments.
Between 21 July 2004 and 3 August 2004 Mr Nelson made one payment of $300 to BMW. Accordingly, the Fourth Schedule Notice referred to a sum of $3,041.16 as the arrears which took account of $300.
Counsel for Mr Nelson submitted that an owner must know precisely what arrears of instalments there were at the time the notice was prepared and no estimate of arrears of instalments was permitted. It followed, that if the amount shown against "arrears of instalments" was not the actual amount of arrears in instalments, then the notice was, in consequence, not in the form of the Fourth Schedule with the result that the rights of the owner "cease and determine". Further, it was submitted that if the amount of arrears was not stated accurately, then the hirer's rights under s 15 of the Act would be prejudiced.
Section 15 of the Act deals with a hirer's rights and immunities when goods are repossessed reads:
"(1)Where the owner takes possession of any goods comprised in a hire-purchase agreement, the following provisions have effect, namely —
(a)the hirer may, before or within 21 days of the service on him of the notice referred to in section 13(3), by giving to the owner a notice in writing signed by the hirer or his agent —
(i)require the owner to re-deliver to or to the order of the hirer (subject to compliance by the hirer with the provisions of section 16) the goods which have been repossessed; or
(ii)require the owner to sell the goods to any person introduced by the hirer who is prepared to purchase the goods for cash at a price not less than the estimated value of the goods set out in the first‑mentioned notice;
(b)the hirer may recover from the owner —
(i)if the value of the goods at the time of the owner so taking possession thereof is less than the net amount payable but the total of that value and the amount paid or provided, whether by cash or other consideration, by or on behalf of the hirer under the agreement exceeds the net amount payable, the difference between that total and the net amount payable; or
(ii)if the value of the goods at the time of the owner so taking possession thereof is equal to or greater than the net amount payable, the total of that value and the amount paid or provided, whether by cash or other consideration, by or on behalf of the hirer under the agreement, less the net amount payable;
and
(c)the owner is not entitled to recover any sum (whether under a judgment or order or otherwise) which would together with —
(i)the value of the goods at the time of the owner so taking possession thereof; and
(ii)the amount paid or provided, whether by cash or other consideration, by or on behalf of the hirer under the agreement, amount to more than the net amount payable in respect of the goods.
(2)For the purposes of this section —
(a)the net amount payable is the total amount payable less the statutory rebates for terms charges, insurance and maintenance as at the time of the owner taking possession of the goods; and
(b)the value of any goods at the time of the owner taking possession thereof is —
(i)the best price which could be reasonably obtained by the owner at that time; or
(ii)if the hirer has introduced a person who has purchased the goods for cash, the amount paid by that person,
less —
(iii)the reasonable costs incurred by the owner of and incidental to his taking possession of the goods;
(iv)any amount properly expended by the owner on the storage, repair, or maintenance of the goods; and
(v)(whether or not the goods have subsequently been sold or disposed of by the owner) the reasonable expenses of selling or otherwise disposing of the goods.
(3)Where the owner has sold goods of which he has taken possession, the onus of proving that the price obtained by him for the goods was the best price that could reasonably be obtained by him at the time when he took possession of the goods lies upon the owner."
Section 16 of the Act deals with the power of a hirer to regain possession of goods in certain circumstances and provides that:
"(1)If, within 14 days after giving notice to the owner pursuant to the provisions of section 15(1)(a), the hirer —
(a)pays or tenders to the owner any amount due by the hirer under the hire-purchase agreement in respect of the period of hiring up to the date of that payment or tender;
(b)remedies any breach of the agreement or (where he is unable to remedy the breach by reason of the fact that the owner has taken possession of the goods) pays or tenders to the owner the costs and expenses reasonably and actually incurred by the owner in doing any act, matter, or thing necessary to remedy that breach; and
(c)pays or tenders to the owner the reasonable costs and expenses of the owner of and incidental to his taking possession of the goods and of his returning them to or to the order of the hirer,
the owner shall forthwith return the goods to the hirer and the goods shall be received and held by the hirer pursuant to the terms of the hire-purchase agreement as if the breach had not occurred and the owner had not taken possession thereof.
(2)Where goods are returned to the hirer pursuant to subsection (1) and any breach has not been remedied, the owner has no right arising out of that breach to take possession of those goods unless —
(a)by notice in writing given to the hirer at the time of the return of the goods he specifies the breach and requires it to be remedied; and
(b)the hirer fails within 14 days or within the time specified in the notice (whichever is the longer) after receiving the notice to remedy the breach.
(3)For the purposes of subsection (1)(a), where the hirer makes a payment or tender referred to in that paragraph, the hiring shall be deemed to have continued up to the date on which that payment or tender was made."
I have been unable to find authority dealing directly with the requirements for a valid notice under s 13(3) of the Act. In the course of submissions I was referred to cases involving the exercise of rights by mortgagees and lessors. The validity of the notices in each type of case necessarily depends upon the established relationship between the parties.
In this case Mr Nelson submits that because the agreement is in the nature of a consumer transaction the notices need to be precise. That submission needs to be considered in the context of the purpose and effect of a Fourth Schedule Notice.
After service of a Fourth Schedule Notice a hirer can give notice to reinstate the agreement pursuant to s 15 of the Act. Nothing in s 15 conditions the hirer's rights on payment of the amount the owner estimates as the arrears: Nelson v BMW Australia Finance Ltd [2009] WASCA 13 at [12] per Pullin JA.
The Fourth Schedule notice is given by the owner to the hirer as a notice to the hirer of the retaking of possession. It identifies for the hirer the owner's estimate of amounts required to reinstate, alternatively finalise the agreement. It is an estimate only in each case.
The notice in this case was in the form of the Fourth Schedule and nothing was added to the form (cfEquipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR 23, Nelson v BMW Australia Finance Ltd (supra) per Pullin JA at [6] ‑ [16].
I am not satisfied in the circumstances that the overstatement in the notice renders the notice ineffective. The notice was valid and effective and complied with s 13(3) of the Act.
Was there service of the Third and Fourth Schedule Notices?
Mr Nelson's case is that the notices dated 22 July 2004 and 3 August 2004 were not served in accordance with the agreement and the Act. Section 37(1)(c) of the Act permits service of notices by post to the last known place of abode or business of the hirer.
It is Mr Nelson's contention that at the date of service he was to the knowledge of BMW living in Bahrain.
Ms Lowers was asked about BMW's records concerning change of address. She accepted that the date of 29 July 2004 appearing in one record for the address change was incorrect. The transaction report shows that on 28 August 2003 Mrs Nelson advised BMW of an updated address for Mr Nelson of 35 Cross Street, Swanbourne.
The transaction report contains notes indicating that on 8 October 2003, 22 October 2003, 5 November 2003, 11 December 2003, 22 January 2004, 3 February 2004, 2 March 2004, 26 March 2004, 22 April 2004 BMW sent letters concerning arrears to Mr Nelson at 35 Cross Street, Swanbourne. In that same period Mr and Mrs Nelson communicated with BMW and payments were made.
Mr Nelson's son and daughter lived at 35 Cross Street, Swanbourne when the Third and Fourth Schedule Notices were posted. It was Mr Nelson's evidence that in July and August 2004 he was living in Bahrain. Mr Nelson gave evidence that in Bahrain there is no postal service to homes. He said communication with BMW had been by email and he could not recall if he had advised of his work address.
He accepted that the address most recently provided by him to BMW was 35 Cross Street.
Mr Nelson did not advise BMW of a new residential address prior to the posting of the Third or Fourth Schedule Notices.
I am satisfied that as at the date of posting of the Third and Fourth Schedule Notices Mr Nelson's last known place of abode was 35 Cross Street, Swanbourne. Each notice was posted to that address and was received by Mr Nelson.
I am satisfied that notices were served in accordance with the Act and the agreement.
BMW's claim
BMW's claim is pursuant to cl 12(2) of the agreement which reads:
"Upon such repossession the Hiring shall terminate (subject, if applicable, to any rights conferred on the Hirer by the Hire Purchase Act to resume the Hiring) and (unless the Hirer so resumes the Hiring pursuant to the Hire Purchase Act, if applicable) the Hirer shall pay to the Owner as liquidated damages the amount by which moneys paid and value provided by the Hirer or on the Hirer's behalf by way of Deposit and Rent Instalments together with the Value of the Goods at the time the Owner takes possession is less than the Net Amount Payable."
BMW's claim is particularised as:
(a)Total amount payable under the Agreement $125,352.80
(b)Less instalments paid $75,117.66
(c)Balance due & owing under Agreement as at
22 July 2004 $50,235.14
(d)Less Interest Rebate for early determination
of Agreement $15.04
(e)Less proceeds of sale $24,944.00
(f)Plus agent & towing costs $418.00
Total$25,694.10
The figures of $125,352.80 and $75,117.66 and $15.04 were agreed. Items (e) and (f) relate to the recovery and resale of the vehicle. It was not in issue that the manner in which BMW particularised its claim was in accordance with the agreement. The sum of $24,944 represents the sale price less the expenses of sale. Of the expenses, only the transport cost of $429 was put in issue.
Section 15(2) of the Act provides that the value of the goods at the time the owner retakes possession is the best price which could reasonably be obtained by the owner at that time.
Mr Nelson's case is that the sale by BMW did not result in the best price for the car which could reasonably be obtained. In his evidence he said that he was astonished that the car had been resold in Melbourne.
Mr Gregson gave evidence that the sale price of the car of $26,000 was a realistic and fair price based on auction values. He is an experienced auctioneer and I have no hesitation in accepting his evidence. Mr Nelson gave evidence that he deferred to the view of Mr Gregson as to sale price.
Mr Gregson's evidence was that for a private sale the price range was between $32,000 and $35,000. That figure was based upon his view as to how much a dealer might add to the auction sale price. There was no evidence as to the differences in the markets for cars sold privately as opposed to by auction. There was no evidence as to costs involved in selling privately as opposed to auction. Mr Gregson's evidence was that the market for auctions of motor vehicles was good in 2004.
The sale was effected within three months of the repossession by BMW. BMW is a finance provider and not in the business of selling second‑hand cars. It was reasonable in all the circumstances for BMW to proceed by public auction.
Mr Nelson tendered a letter dated 17 July 2007 from a Mr Murray Rhodes who describes himself as a valuer. In the letter he expresses the view that the sale price of $24,944 was fair.
The burden of proof is upon BMW to establish that the sale price was the best price that could reasonably be obtained (s 15(3) of the Act). I am satisfied that the burden has been discharged.
BMW incurred transport costs for the car to Melbourne of $429. Ms Lowers gave evidence that cars were transported interstate to obtain a better selling price. However, she could not remember this particular car. There was no evidence as to why it was necessary for the vehicle to be transported from Perth.
It was the evidence of Mr Gregson which I accept that a sale of the car in Perth would have obtained the same price as elsewhere in Australia. There was nothing about the car that would lead to the conclusion that it would be preferable for it to be sold in Melbourne rather than Perth.
I am not satisfied in the circumstances that the $429 cost of transport is recoverable by BMW.
The quantum of $418 claimed for agent and towing costs was accepted as reasonable. The effect of cl 9(2) of the agreement is that the sum of $418 was only repayable by Mr Nelson upon demand in writing. There was no evidence as to demand. The claim for $418 is dismissed.
Other evidence
Complaint was made in closing written submissions by Mr Nelson that relevant witnesses had not been called by BMW. It was submitted that it should be inferred that the evidence of the uncalled witnesses was likely to have been prejudicial to BMW's case. I accept the evidence of Ms Lowers. She gave her evidence by reference to the contemporaneous transaction report. The documentary evidence supported Ms Lowers' evidence. Whilst Mr Nelson submitted the transaction report was one of the documents that had been "censored" he essentially did not take issue with the transaction report which provided a detailed chronology and history of the dealings between the parties. Importantly there was no evidence of payments made and not recorded save for the payment on 1 July 2004 of $650.
The uncalled witnesses about which complaint was made were employees of BMW but had left its employ by the date of trial. Ms Lowers' evidence was detailed. Importantly BMW called the sales representative and the finance officer who had dealt with Mr Nelson. I am not satisfied in the circumstances that any inference can be drawn as suggested.
Mr Nelson's case
Mr Nelson accepted that BMW had been required to issue a number of notices of intention to repossess. The first of these was dated 22 March 2001. He gave evidence that whilst he had informed employees of BMW that he was in Bahrain he had never informed them of a street address. The car was stored at 35 Cross Street, Swanbourne and as at 27 March 2003 he was living at that address.
Mr Nelson agreed that on 29 July 2004 he had offered $700 per week in discharge of the arrears.
In his evidence Mr Nelson said in relation to the amount claimed by BMW he would have paid all the amount due but was not given the opportunity. In his email of 11 August 2004 in which he purported to terminate on the ground of BMW's alleged repudiation he made it very clear that he intended to proceed with a damages claim against BMW. At least by that date he had decided not to proceed with the agreement. In any event the final payment of $47,000 was soon to become due.
Mr Nelson accepted that pleadings had been filed on his behalf which admitted he owed BMW $624 as at 22 July 2004.
In written opening submissions Mr Nelson identified the following legal issues:
"1.Consequences of both the Third Schedule Notice and Fourth Schedule Notice stating inflated amounts of arrears – there being no Notice for the amount that was actually due and payable.
2.Is a Third Schedule Notice or Fourth Schedule Notice that fails to fulfil the statutory purpose for which it is required (to reveal amounts actually due by the hirer) of any legal force?
3.If the hirer is not given the opportunity to pay the moneys that are actually due has the hirer been deprived of his statutory rights and has the statutory regime been rendered nugatory; and if so can the notices stand?
4.Are damages adequate compensation where a hirer has had his statutory rights extinguished by the unilateral conduct of the owner?
5.The consequences flowing from the fact that all the Plaintiff's demands for payment refer to an amount that far exceeds Mr Nelson's liability, even on the Plaintiff's case.
6.The sale of the Vehicle in Melbourne instead of Perth – the costs of transporting the Vehicle to Melbourne."
At trial and in closing submissions (oral and written) the primary focus of Mr Nelson's case was as to the validity and service of the Third and Fourth Schedule Notices and the alleged harsh and unconscionable conduct of BMW.
Mr Nelson relies upon s 5(3) of the Act in support of a claim that the conduct of BMW was harsh and/or unconscionable.
Section 5(3) of the Act reads:
"Where the hirer expressly or by implication makes known to the owner or to the dealer or to any servant or agent of the owner or the dealer the particular purpose for which the goods are required, there shall be deemed to be implied in the hire‑purchase agreement a condition that the goods are reasonably fit for that purpose."
Mr Nelson's case is that the requirements of the vehicle were to meet on‑road expectations and also financial expectations, namely that the resale value of the car would be sufficient to meet the amount required to finalise the agreement. A claim based upon BMW's alleged misleading and deceptive conduct was abandoned at trial.
Mr Nelson submits that he made known to the salesman that he wanted an assurance that the resale value of the vehicle at the end of the agreement term would probably be sufficient to meet the payment ($47,000).
Mr Nelson's defence and counterclaim pleads that:
"18.Before entering into the Agreement:
(a)the Defendant inspected the Vehicle at the premises of the Vehicle dealer in Victoria Park ('Inspection');
(b)the Inspection was conducted by a sales representative of the Vehicle dealer ('Sales Representative')'
(c)during the Inspection the Defendant orally enquired of the Sales Representative to the effect whether the Vehicle would retain its resale value to cover the Agreement payout figure at the end of the proposed hire purchase period of 60 months if the Defendant sold it to meet the payout."
Particulars are provided to par (c). Paragraphs (c), (g) and (h) of the particulars read:
"(c)in the course of discussions prior to the Defendant entering into the Hire Purchase Agreement the Dealer's Sales Representative orally stated to the Defendant to the effect that BMW motor vehicles were well‑known for retaining their value. The Defendant understood him to mean by this that the re‑sale value of the Vehicle at the end of the hire term would be sufficient pay out any residual payment provided in the Hire Purchase Agreement;
…
(g)at no time during the course of the discussions did the Dealer's Sales Representative or any one on behalf of the Dealer or the Plaintiff say or infer to the Defendant that the Vehicle would not retain sufficient market value to pay out the balloon payment, or that it was a low volume seller or that it was considered to be underpowered. Had any one on behalf of the Dealer or the Plaintiff said this to the Defendant he would not have entered into the Agreement;
(h)the Sales Representative orally represented to the Defendant at the time referred to in subparagraph (c) hereof to the effect that there was no risk for the Defendant in entering into the Hire Purchase Agreement for the Vehicle because its resale value would be sufficient to pay out any residual at the end of the Hire Purchase Agreement term for the Vehicle ('Representation')."
Under the heading of "Estoppel" in the defence the following appears:
"28.At the time of the making of the Representation:
(a)the Sales Representative knew or should have known that the Defendant would be induced by it to enter into the Agreement;
(b)it was reasonably foreseeable that the Defendant would suffer loss if the Representation turned out to be wrong; and
(c)the Sales Representative undertook responsibility for the reliability of the Representation.
29.In the premises, the Defendant claims that the Plaintiff is estopped from claiming from the Defendant:
(a)any shortfall on the Plaintiff's sale of the Vehicle;
(b)the residual payments;
(c)any unpaid instalments; and
(d)interest, costs and charges,
payable under the Agreement, on the grounds of promissory estoppel."
In Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 Brennan J described the essential elements of equitable or promissory estoppel in these terms, at 428 ‑ 29:
"In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that:
(1)the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
(2)the defendant has induced the plaintiff to adopt that assumption or expectation;
(3)the plaintiff acts or abstains from acting in reliance on the assumption or expectation;
(4)the defendant knew or intended him to do so;
(5)the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
(6)the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise."
In Austotel Pty Ltd v Franklins Self‑Serve PtyLtd (1989) 16 NSWLR 582 at 612 Priestley JA summarised equitable estoppel as follows:
"For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable."
In Commonwealth v Verwayen (1990) 170 CLR 394 Deane J observed that the central principle of the doctrine of estoppel was to prevent an unconscientious departure by one party from an assumption adopted by the other as the basis of a relationship to the other's detriment [at 444]:
"The law will not permit an unconscionable – or, more accurately, unconscientious ‑ departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation."
Mr Nelson's evidence was that he saw Mr Denny on just one occasion. He asked him about finance for the car and was referred to Mr Smallwood. Mr Nelson said he told the salesman that he wanted a maximum balloon payment to ensure that the monthly instalments were kept to a minimum. The dealer's response according to Mr Nelson was that BMW's are well known for retaining their vale. That was not a representation or assurance, if made, which could reasonably have been relied upon by Mr Nelson. It was not reasonable for Mr Nelson to interpret what he said was said to him as meaning that the resale value of the car would be sufficient to cover any residual amount payable pursuant to the agreement. As Mr Nelson said, Mr Denny did not know what the balloon payment was going to be. He said that he had not gone into his finance requirements with Mr Denny as he was not the finance specialist.
Mr Denny worked as a car salesman for Auto Classic for six years from 1996. He estimated that in that period he had put through hundreds of deals for cars. It was his practice to refer purchasers with questions about finance to the finance manager. It was his evidence which I accept that he would not have discussed Mr Nelson's lease or hire purchase requirements with him.
Mr Denny was not the person responsible for finance. He was cross‑examined about the final payment of $47,000. Mr Denny's evidence was it was up to the client to discuss questions of residual value of the vehicle with his accountant or financial adviser. As Mr Denny pointed out, every car is different. There are many factors which would influence resale value. The number of miles and time period the vehicle was retained would be relevant. It was his evidence which I accept that he did not discuss resale values with customers. I accept Mr Denny's evidence that he would not have discussed the residual value of the vehicle with Mr Nelson. He would not have the information or knowledge to do so.
Mr Nelson did not discuss the vehicle with Mr Smallwood in the sense of its suitability for his purposes. What was discussed with Mr Smallwood was Mr Nelson's finance requirements.
Mr Smallwood explained in his evidence that he did not know much about cars, so he did not provide any advice about values. He said that it was never his practice to say anything to customers about values or future values of cars. He did not know anything about the value of second‑hand BMWs or whether they retained their value. His role was to help purchasers to obtain finance. He was not a qualified financial adviser and was therefore careful in what he said.
I accept Mr Smallwood's evidence. He was straightforward in the answers he gave. His evidence made sense. I do not consider in the circumstances he would have made any representations to Mr Nelson concerning the car and its value.
The claim pleaded by Mr Nelson is that it was the dealer's sales representative who made the representation about resale value of the car. I am satisfied based upon the evidence of Mr Denny that there was no representation made as asserted by Mr Nelson.
Paragraph 18(g) above refers to the dealer's sales representative or anyone on his behalf not having advised Mr Nelson that the vehicle was a low volume seller and considered to be underpowered. There was no evidence of any reliance upon such a representation. There were no submissions made by Mr Nelson as to this issue.
I am not satisfied that the alleged purpose of the vehicle meeting financial expectations was expressly or by implication made known to any representative of BMW by Mr Nelson.
The claims based upon s 5(3) of the Act cannot succeed. I am not satisfied that there was any representation. There may have been a general discussion. The term of the agreement was five years. Mr Denny did not know what was the final payment to be made pursuant to the agreement. He did not deal with financing. I do not accept he would have said that BMW were well known for retaining their value. Mr Nelson was an experienced commercial lawyer. I am not satisfied that Mr Nelson would have relied upon anything said to him as to value by representatives of the dealer. Mr Nelson was not in any way misled by BMW.
Mr Nelson also seeks to rely upon an estoppel in relation to his non‑payment of monthly instalments pursuant to the agreement. His case is that BMW did not require him to make the monthly payments of $1,305.88.
In his pleading Mr Nelson expresses the allegation as follows:
"33.Further, and in the alternative, in or about April 2004, the Plaintiff orally represented and promised the Defendant to the effect that due to changes in the Defendant's residential, employment and financial circumstances from those that pertained when the Defendant entered into the Agreement the Plaintiff did not require the Defendant to adhere to the monthly instalment payments expressly required under the Agreement ('Promise').
34.In reliance on the Promise and induced thereby the Defendant did not make the payments stipulated under the Agreement from about April 2004.
35.In the premises pleaded in paragraphs 33 and 34 the Plaintiff is estopped from:
(a)relying on the 3rd Schedule Notice;
(b)relying on the 4th Schedule Notice;
(c)relying on the demands referred to in paragraphs 7, 9 and 20 of the Second Amended Statement of Claim; and
(d)making the claims made in the Second Amended Statement of Claim or any claims against the Defendant."
Mr Nelson's evidence was that in mid‑2003 he had agreed with a representative of BMW that he could make weekly payments rather than pay monthly instalments in advance. There was no written document signed by the parties evidencing the variation. The transaction report does refer to there being arrangements but there is no signed variation. The last payment of $1,305.88 was made on 27 September 2002. Thereafter payments made were in sums either greater or less than the amount.
It is the case that in some months Mr Nelson made payments in excess of $1,305.88. For example, in July 2004 he paid a total of $1,550. However in June 2004 he had paid only $350. However there was accrued arrears of instalments which also needed to be discharged. There was no agreement or arrangement in relation to any arrears. There is no plea in relation to any promise or arrangement as to arrears.
Clause 9(3) of the agreement reads:
"(3)No waiver or indulgence by the Owner of any breach by the Hirer shall be deemed a waiver or indulgence of any continuing or recurring breach and the rights of the Owner shall not be affected in any way by any time or indulgence that the Owner may grant to the Hirer."
Mr Nelson in his evidence said that during 2004 he made payments to BMW when he could. He described the arrangement as one that was never set in stone. It was his evidence that it was an arrangement which "was intended to keep my payments on a weekly basis in sync with the repayment arrangements under the agreement". In his evidence he agreed that if he was behind in payments BMW had the right to stop granting the indulgence.
It was Mr Nelson's evidence that as at 16 July 2004 the arrangement required him to pay $350 per week. However, on 15 July 2004 and 22 July 2004 when payments were due only $300 was paid on each date. He accepted that he did not pay $350 per week from 21 May 2004. On 21 May 2004 Mrs Nelson rang BMW and said she had an arrangement in place to pay $350 per week. The transaction report contains a note of 24 May 2004 that Mr Nelson was "unable to pay more at the moment".
Between 1 February 2004 and 30 June 2004 Mr Nelson paid a total of $4,850. Pursuant to the agreement he was required to pay $6,529.40 (five payments of $1,305.88). He was therefore $1,679.40 short in instalments. In addition there were arrears of $1,005.88 as at 30 January 2004.
Mr Nelson's evidence was that in the 12‑month period prior to service of the Fourth Schedule Notice he had met his payment obligations and the arrears had only increased by $98.
I am satisfied that there was no agreement to vary the payment obligation. The course of dealing is clear. Mr Nelson was from time to time seeking indulgence and forbearance in relation to his payment obligations from BMW. His financial position deteriorated significantly from the date when he entered into the agreement. From late 2000 he had difficulty meeting financial commitments and was selling assets to reduce commitments. The position became even more difficult after his legal partnership was dissolved in January 2001. BMW granted indulgences from time to time, but there was no variation. I do not accept that payment on a weekly basis relieved Mr Nelson of his payment obligations pursuant to the agreement. He needed to meet payment of the monthly instalments and discharge the arrears.
I accept Ms Lowers' description of the payment arrangements made with Mr Nelson from time to time. As Ms Lowers said in her evidence, BMW was trying from time to time to get Mr Nelson to clear the arrears and avoid the repossession of the car.
I am not satisfied that there was any agreement, promise or conduct entitling Mr Nelson to assume payments could be made in arrears. There were submissions but he did not go so far as to suggest there was a promise or assurance from BMW that he could pay in arrears. As I have said, BMW was prepared to allow Mr Nelson to pay instalments due on a weekly rather than a monthly basis.
In closing submissions Ms Lowers' evidence was described as evasive and disingenuous. I do not accept that submission. Ms Lowers gave her evidence by reference to the transaction report. She was cross‑examined at length and in detail. At times she was asked to consider payments made over extended periods of time. She dealt with the questions carefully. I was satisfied that her evidence was truthful and she was doing her best to remember what had occurred. She was not in any way evasive.
Mr Nelson further contends that if there was no agreement to vary the instalment payments BMW is estopped from relying on the terms of the agreement.
There was no clear and unambiguous assurance given by BMW to Mr Nelson that it did not require him to adhere to the monthly instalment payments required under the agreement. Mr Nelson's evidence as to promises or assurances made to him by BMW lacked clarity. Indeed, as Mr Nelson said, if he fell behind BMW had the right to stop granting the indulgence.
I do not accept that there is an estoppel in this case. The pleaded estoppel is not that the agreement was for a set weekly amount to be paid. Rather that he was not required to adhere to monthly payments. In any event if there was an arrangement Mr Nelson did not comply. The position was made clear to Mr Nelson by BMW in its written notices to him. Mr Nelson had to either bring up the arrears in the case of the Third Schedule or reinstate the agreement in the case of the Fourth Schedule Notice. He did neither. There was nothing unconscionable in the conduct. It gave him reasonable notice that he needed to comply with his obligations under the agreement.
Mr Nelson also relies upon an estoppel in relation to his attempts to obtain refinancing. Each party made submissions concerning the matter.
In his email of 5 May 2004 to BMW Mr Nelson stated that he was providing information to BMW to enable consideration to be given to a request to refinance the lease for a further term. The email concludes with Mr Nelson stating that if any further information is required then BMW should let him know. Ms Lowers on 7 May 2004 and 12 May 2004 took steps in relation to Mr Nelson's request as to refinancing. The steps involved communicating with other employees of BMW who were dealing with the financing.
On 1 June 2004 Mr Nelson sent an email to BMW in which he stated:
"Would you please confirm that BMW Finance is prepared to extend the lease, and if so on what terms."
On 7 July 2004 Mr Nelson sent a further email to BMW. The email stated:
"I just want to note that I have not had the courtesy of any response to my emails.
If any of your colleagues wants to respond to my earlier email, would you please arrange for them to contact me on this email address. Otherwise I will assume that the car will need to be refinanced or disposed of. My intention would be to dispose of it."
On 13 July 2004 Mr Ben Ruziska, an employee of BMW, emailed Mr Nelson and requested he contact Mr Ruziska in regards to refinancing.
It was Mr Nelson's evidence that sometime in July 2004 he had received an undated letter from Mr Ruziska on behalf of BMW with an application for finance to enable him to refinance the car. It was Mr Nelson's belief that at the time BMW has issued the Third Schedule Notice dated 22 July 2004. There was no reason why Mr Nelson could not have pursued the finance application even though given his history it was unlikely BMW would refinance.
There was no evidence of any promise made by BMW that it would refinance. There was nothing in the conduct of BMW which Mr Nelson could reasonably have assumed that he would have been refinanced. There was never an offer made to refinance by BMW. There was internal communication between officers of BMW and a finance application was ultimately provided. Even after the Third Schedule Notice had been served there was still a reasonable time period before the sale of the car proceeded.
There was no obligation upon BMW to provide refinancing to Mr Nelson. There was no representation or conduct by BMW which Mr Nelson could reasonably have relied upon to assume that Mr Nelson's obligations would be refinanced. In his detailed emails of 11 and 15 August 2004 he made no mention of any belief he had that the agreement would be refinanced. At best BMW had sent him an application for finance for completion. There was no assurance or other conduct. Given his history of non‑compliance with payment obligations Mr Nelson could not reasonably have expected that finance was to be provided. He accepted in his evidence that up until January 2003 there was a history of not complying with a number of promises to pay to BMW.
Mr Nelson claims that the transaction (in the sense of all BMW's conduct) was harsh and unconscionable and that it should be re‑opened. Mr Nelson claims a declaration that the agreement is void, repayment of instalments made and damages and relies upon s 24(1) of the Act.
The damages claim is particularised as:
"The Defendant refers to paragraphs 59 – 61 of the Defence and to the counterclaim and prayer for relief and claims the following damages and exemplary damages from the Plaintiff:
(a)reimbursement of all payments made by the Defendant to the Plaintiff under the HPA;
(b)exemplary damages of $50,000; and
(c)legal costs on an indemnity basis."
Section 24 reads:
"(1)In any proceedings under this Act or arising out of a hire purchase agreement or instituted pursuant to subsection (4) where it appears to the court that the transaction is harsh and unconscionable (by reason of a provision for terms charges or other charges that are, in the circumstances of the case, excessive or by reason of any other provision of whatever kind) or is otherwise such that the Supreme Court in its equitable jurisdiction would give relief the court may reopen the transaction and take an account between the parties thereto.
(2)The court by which a transaction is reopened under this section may, notwithstanding any statement or settlement of accounts or any agreement purporting to close previous dealings and create a new obligation —
(a)reopen any account already taken between the parties;
(b)relieve the hirer and any guarantor from payment of any sum in excess of such sum in respect of the cash price, terms charges, and other charges as the court adjudges to be fairly and reasonably payable;
(c)set aside either wholly or in part or revise or alter any agreement made or security given in connection with the transaction;
(d)give judgment for any party for such amount as, having regard to the relief (if any) which the court thinks fit to grant, is justly due to that party under the agreement; and
(e)if it thinks fit give judgment against any party for delivery of the goods if they are in his possession."
Counsel for Mr Nelson in submissions described the transaction as a consumer transaction. It is the case that the car was for domestic use. The purchase price was $91,296. Mr Nelson was an experienced commercial solicitor. Save for the allegations concerning the characteristics of the car (resale value, power and low volume seller) there were no allegations of misrepresentation or harsh or unconscionable conduct of BMW prior to Mr Nelson entering into the agreement. The agreement was one of many financial arrangements with different clients which BMW entered into from time to time.
Mr Nelson maintains that the Third and Fourth Schedule Notice dated 22 July 2004 and 3 August 2004 respectively did not comply with the Act and were not properly served. I am satisfied that each notice did comply and that each was properly served. I have outlined my reasons in relation to these issues above.
BMW was aware that Mr Nelson was overseas when the notices were served. However he had not advised BMW of his new residential address. The only address he had provided was an email address. It was accepted by Mr Nelson that he did physically receive each notice. I am satisfied that Mr Nelson did have notice of BMW's intention to enforce the agreement. In the circumstances BMW's conduct in serving the notices at 35 Cross Street, Swanbourne was not harsh or unconscionable.
Paragraphs 49 to 54 of the defence and counterclaim read:
"49.Between 1 July 2004 and about 20 August 2007 the Plaintiff failed and neglected to credit the Defendant with the payment of $650.00.
PARTICULARS
(i)the payment is not credited to the Defendant in either the Witness Statements of the Plaintiff's witnesses Mohamed Salim Elmasri made 16 July 2007 or Maria Lowers made 3 August 2007;
(ii)by her Supplementary Witness Statement made on 20 August 2007, in response to the Witness Statement of the Defendant and the Witness Statement of Barbara Nelson, each made 9 August 2007, Maria Lowers admitted that the payment of $650.00 had been made and had now been credited to the Defendant's account;
50.Notwithstanding the matters pleaded in paragraphs 32 and 38 to 43 inclusive:
(a)up until 23 August 2007 the Plaintiff pursued its claim in this action on the basis that the said payment of $650.00 had not been made;
(b)conducted the action on the basis pleaded in sub‑paragraph (a) of this paragraph notwithstanding that it had the Payment Evidence referred to in paragraph 52 hereof; and
(c)by doing the things referred to in sub‑paragraphs (a) and (b) of this paragraph, abused the Court process, maintained a frivolous and vexatious claim against the Defendant and caused the Defendant to incur unnecessary costs.
51.The Defendant:
(a)sought and obtained orders for discovery of particular documents from the Plaintiff relating to payments made by the Defendant to the Plaintiff in relation to the Vehicle on or about 8 February 2007, 12 March 2007, 19 March 2007 and 11 June 2007 ('Special Discovery Order');
(b)on 14 June 2007 the Plaintiff complied with the Special Discovery Order by causing approximately 2,176 pages of documents to be delivered to the Defendant's solicitor ('Plaintiff's Receipt Documents'); and
(c)the Defendant's solicitors were required to scan and email the Plaintiff's Receipt Documents to the Defendant in Bahrain so they could be printed out and checked by the Defendant.
52.The Plaintiff's Receipt Documents:
(a)included bank statements for the Plaintiff for receipts for payments made in Australia into various bank accounts operated by the Plaintiff in a number of Australian States including account number 06 3000 00355083 with the Commonwealth Bank ('CBA Account'); and
(b)contained only one page that was relevant to the said payment of $650.00.
PARTICULARS
CBA Account Bank statement 780 (page 5 of 14) for 1 July 2004 ('Payment Evidence').
53.The Payment Evidence had been in the possession, custody or control of the Plaintiff from on or about 1 July 2004.
54.The Plaintiff could have and should have verified the payment of $650.00 as having been made by the Defendant on or about 1 July 2004 by:
(a)referring to the Payment Evidence;
(b)conducting a reconciliation of its suspense account and or other accounts;
(c)enquiring of the Third Party Hirer whether he had effected a payment of $650.00 on or about 1 July 2004 by Barbara Nelson's Cheque,
in which case the Plaintiff would have discovered that the payment of $650.00 had been made on the Defendant's behalf and should have been credited to the Defendant's account on or about 1 July 2004."
The $650 payment on 1 July 2004 was admitted by BMW. When BMW sought to amend to plead the true position in relation to the payments the amendment was opposed. The amendment was allowed and an appeal to the Court of Appeal was dismissed in relation to that application and also Mr Nelson's application for summary judgment which had been dismissed (see Nelson v BMW Australia Finance Limited (supra)).
It was Mr Nelson's evidence that he telephoned BMW and complained that the $650 paid on 1 July 2004 had not been credited to the account. On 1 August 2004 he informed BMW that the payment of $650 had been made. In the conversation Ms Lowers told Mr Nelson that unless all the arrears were paid repossession would proceed and the position was not negotiable. On 1 August 2004 Mr Nelson sent an email to BMW and stated that he had received confirmation of the payment of the $650 from the Home Building Society.
Mr Nelson complains that by its conduct in relation to the $650 BMW has abused the court process and acted in a harsh and unconscionable manner. It is the case it was necessary for him to obtain an order for specific discovery relating to payments made to BMW. It was not until 23 August 2007 that BMW amended its claim and allowed a credit for the $650.
Mr Nelson's payment of $650 made on 1 July 2004 does not appear on the transaction report. The payment when made did not have an identifying code. The cheque was in the name of Mrs Nelson. Because of that Ms Lowers did not find out about it until some time after the payment was made. When Ms Lowers spoke to Mr Nelson he gave her the actual date and the amount of the cheque and the cheque number. However the cheque contained no reference number or reference to Mr Nelson or his account number. The deposit was eventually located in another client's account. It was Ms Lowers' evidence in cross‑examination which I accept that she had looked for the $650.
The payment of $650 was not located by BMW for a number of years after the vehicle had been sold. It was not until mid‑2007 that Ms Lowers arranged for the transfer of the $650 from the other client's account where it had been deposited into Mr Nelson's account. There were difficulties and problems experienced by Mr Nelson in obtaining discovery of documents from BMW relevant to the payment. 2,176 pages of bank statements were produced by BMW at the request of Mr Nelson. These were examined by Mr Nelson's solicitor who was able to identify one of the pages which contained the entry for the $650. There was no suggestion of any other payment made which was not credited to Mr Nelson's account by BMW. It was unfortunate the sum had not been located and an admission made earlier by BMW. Be that as it may, the sum was located and credited. The $650 was inadvertently credited to the wrong customer account by BMW. That customer had been paying instalments of $650. BMW's conduct in relation to the $650 was not in all the circumstances harsh and unconscionable.
I am satisfied that it was not harsh and unconscionable for BMW to seek to enforce the agreement. Mr Nelson was in default when the Third and Fourth Schedule Notices were issued. Following receipt of the notices dated 22 July 2004 and 3 August 2004 Mr Nelson could have paid the amount claimed with a reservation of his rights or pay the sum which he considered was due or institute proceedings.
By his email of 11 August 2004 Mr Nelson purported to terminate the agreement on the grounds that BMW had repudiated the agreement. He pleads that the conduct of BMW in relation to the $650 was a breach of the agreement and a repudiation of it. He also pleads that BMW converted the $650. I do not accept that BMW did repudiate the agreement as alleged by Mr Nelson in his email. BMW had obligations pursuant to the Act and Mr Nelson had the right to reinstate or finalise the agreement following receipt of the Fourth Schedule Notice. He elected not to do so. In his email he refers to the conduct of BMW as being "heavy handed and unlawful". I am far from satisfied that that was the case.
There were reminder letters and messages sent to Mr Nelson by BMW in March 2004, April 2004 and May 2004. Mr Nelson's payment history with BMW was characterised by non‑compliance and non‑fulfilment of promises to make payment. BMW was prepared to grant him indulgences from time to time.
Mr Nelson relies upon the service of the Third Schedule Notice eight weeks and four days prior to the end of the term of the agreement. A similar allegation is made in relation to the Fourth Schedule Notice served seven weeks prior to the expiration of the term. I am satisfied that in the circumstances where there had been default it was not harsh and unconscionable for BMW to exercise rights which it had pursuant to the agreement and the Act.
Mr Nelson made no payments to BMW after the date of service of the notices. There was no attempt by him to tender or pay the amount claimed or the amount he thought ought to be due or any other amount. He made no attempt to reinstate the agreement.
In the defence and counterclaim BMW is described as having acted in contumelious disregard for the rights of Mr Nelson under the agreement and the Act. It is further alleged that BMW knew or should have known that to do so would cause irreparable harm and loss to Mr Nelson, namely the permanent loss of the car.
I am not satisfied that BMW was recklessly indifferent in relation to its obligations pursuant to the agreement and Act as submitted on behalf of Mr Nelson.
The conduct by BMW of the action was relied upon by Mr Nelson. The allegations made were wide ranging and included allegations of bad faith and negligent conduct, failure to give proper discovery of documents, and censoring of documents. There were also allegations of failing to expeditiously amend the claim and delay in the proceedings.
Exaggerated claims and demands, amendments and unnecessary interlocutory applications are all matters which traditionally can be adequately dealt with by orders for costs. The allegations made as to BMW's conduct of the action were serious and what was alleged, as I have said, included censoring of documents. The only document identified in this respect was the transaction report. The censoring was referred to as the deletion of information prejudicial to its claim.
The transaction report was not a complete record and this was readily acknowledged by Ms Lowers in her evidence. She explained in her evidence that correspondence by third parties such as the solicitors acting for BMW was not included in the transaction report. It was the evidence of Ms Lowers which I accept that BMW's computer deletes content from the transaction report where there is insufficient space in the document. She explained in her evidence that it depended upon the size of the note. It was possible to retrieve emails and for them to be placed back into the transaction report. She did not know why this had not occurred. I was informed that it was common ground that blanks in the transaction report related to communications omitted on the grounds of privilege.
One document which did not appear in the transaction report was Mr Nelson's email of 11 August 2004. The part of the transaction report where the email would be expected to appear is blank. The email was disclosed by BMW in its supplementary affidavit of discovery sworn 7 November 2007. I do not accept that there was deliberate "censoring of documents" by BMW. If it regarded the email as so critical that it would delete it from the transaction report it is difficult to understand why it would then have proceeded to discover the document. No missing or significant document or category of document was identified as not having been produced by BMW at trial.
BMW was prepared to provide detail to Mr Nelson as to payments outstanding and Ms Lowers requested Mr Nelson to provide a facsimile number so that statements could be provided. There was no response from Mr Nelson.
When information as to payment of the $650 was ultimately received steps were taken by BMW to amend its claim.
The action was commenced in 2005. There have been applications to amend pleadings by each party. The papers for the Judge as finally amended comprised 35 pages.
BMW has amended its statement of claim on a number of occasions. BMW opened its claim on the basis that $26,601.59 was owing by Mr Nelson. That sum included interest and also collection and dishonour costs of $461.90. The claim for the $461.90 was the subject of evidence at trial and each party made extensive submissions. After the decision was reserved BMW applied to amend its pleading to plead a demand for that sum. The application was opposed. Eventually the amendment application was abandoned.
Mr Nelson applied to amend his defence and counterclaim on the first day of trial. Mr Nelson's written closing submissions comprised 65 pages. Reliance was also placed upon delay in the conduct of the proceedings and late amendments. There was no detailed evidence or examination of these issues at trial. I am not satisfied in all the circumstances that BMW's conduct of the action was harsh and unconscionable. Any demonstrated conduct of the litigation could be the subject of appropriate orders for costs in the action.
The claim made by BMW is relatively straightforward. The car was repossessed on 3 August 2004 and not sold until 20 October 2004. From 11 August 2004 Mr Nelson proceeded on the basis that the agreement was at an end. Mr Nelson did not communicate with BMW in the period between 15 August 2004 and when the car was sold. He did not tender or pay any sum to BMW. Mr Nelson could have paid or tendered the amount claimed. He did not do so. This was in the face of his evidence that his financial position was such that he could make payment. He did not do so and accepted he was angry about the situation and did not want to have anything to do with BMW.
There was no evidence that I am prepared to accept of any bad faith on the part of BMW or other disentitling conduct on its part.
Mr Nelson had the use of the car for approximately five years. He was consistently in arrears of payments. He made promises to pay and did not keep them. He was granted indulgences from time to time by BMW. There was never a clear promise or assurance given by BMW that compliance with the agreement was not required. The Third and Fourth Schedule Notices were sufficient and made clear to Mr Nelson that he must pay. He did not. If he wanted to keep the car he would have needed to make the final payment of $47,000. Eventually the car was sold for $26,000 which I have found was the best price which could reasonably have been obtained.
In all the circumstances I do not consider there has been harsh or unconscionable conduct by BMW. It has taken proceedings to enforce an agreement which it had with Mr Nelson.
Aggravated and exemplary damages and other relief
Mr Nelson's claim for aggravated and exemplary damages and other relief is based upon the assertion that BMW had engaged in harsh or unconscionable conduct. Reliance is also placed upon representations made and estoppel.
I have as I have said found there was no harsh or unconscionable conduct, any estoppel to preclude BMW obtaining relief or that any actionable representations were made by BMW. A credit transaction was tendered which listed Mr Nelson as a debtor for the amount claimed in the writ of summons of $30,329.10. The claim in the action was for $25,694.10. Any complaint that by not lodging an amended notice some damage was sustained is without merit. The other aspect is the effect that such a listing might have upon Mr Nelson's credit rating. There was no credible or reliable evidence adduced in that regard. No mention was made by Mr Nelson in any of his witness statements or evidence‑in‑chief as to the effect of a listing. There is no basis for any of the relief which Mr Nelson is seeking. In the particular circumstances of this case and given the findings I have made I do not consider it appropriate to proceed with a provisional assessment of damages. Mr Nelson's counterclaim must be dismissed.
Conclusion
I am satisfied that the notices BMW was required to give pursuant to the Act were valid and effective. They were in each case served in accordance with the Act.
BMW did not engage in unconscionable conduct either in the formation or enforcement of the agreement.
BMW's claim succeeds save for the transport cost and collection costs and is therefore entitled to a judgment of $24,847.10.
Mr Nelson is not entitled to relief pursuant to the Act. Mr Nelson's counterclaim is dismissed.
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