Griffiths v LMM Holdings Pty Ltd as the Trustee for the Brisbane BMW Unit Trust - [2016] FCCA 2322

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRIFFITHS v LMM HOLDINGS PTY LTD AS THE TRUSTEE FOR THE BRISBANE BMW UNIT TRUST

[2016] FCCA 2322

Catchwords:

CONSUMER LAW – Misleading and deceptive conduct – whether representations as to the delivery of motor vehicle be made – whether representations were true – representation as to a future matter – whether reasonable grounds for making representation.

CONTRACT – Whether pre-contractual representation a term of the contract – where pre-contractual representation not a term promissory in nature and not of the contract – where no reliance upon pre-contractual representation – where no estoppel arises by reason of the representation.

Legislation:

Australian Consumer Law, ss.23(1), 24

Cases cited:
Barnes v Forty Two International Pty Limited (2014) 316 ALR 408
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1998) 38 FCR 471
Ellis v Thompson (1838) 3 M. & W. 445, 456
Foran v Wright (1989) 168 CLR 385
Gould v Vaggelas (1984) 157 CLR 215
Hick v Raymond and Reid [1893] AC 22
Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41
Jones v Gibbons (1853) 8 Exch. 920
Low v Bouverie [1891] 3 Ch 82
Meehan v Jones (1982) 149 CLR 571
Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1
The Australian Coarse Grains Pool Pty Ltd v The Barley Marketing Board (1989) 1 Qd R 499
Tramways Advertising Pty Ltd v Luna Park (NSW)Ltd (1938) 38 SR (NSW) 632

Applicant:

LIZA ANN GRIFFITHS

Respondent:

LMM HOLDINGS PTY LTD (ACN 448 408 349) AS THE TRUSTEE FOR THE BRISBANE BMW UNIT TRUST

File Number:

BRG 830 of 2015

Judgment of:

Judge Jarrett

Hearing date:

15 March 2016

Date of Last Submission:

15 March 2016

Delivered at:

Brisbane

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Mr Fisher

Solicitors for the Applicant:

Mark Treherne & Associates

Counsel for the Respondent:

Mr Curtis

Solicitors for the Respondent:

Results Legal

ORDERS

Judgment for the respondent on the application filed on 9 September, 2015;
The application filed on 9 September, 2015 be dismissed;
Judgment for the respondent against the applicant on the cross-claim filed on 23 October, 2015 for $12,204.00 plus interest;
The applicant pay to the respondent the sum of $12,204.00 together with interest thereon in such sum as the parties might agree and failing agreement as fixed by the Court in pursuant to order (6) hereof;
The parties bring in agreed short minutes of orders dealing with:
(a)the question of costs on the application and cross-claim; and
(b)interest on the respondent’s cross-claim
within 28 days of the date of these orders.
In the event that the parties are not agreed on orders for costs and interest within 28 days of the date of these orders, the application is listed for submissions about the form of orders in relation to the matters dealt with in order (5) hereof at 9.30am on 10 October 2016 in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 830 of 2015

LIZA ANN GRIFFITHS

Applicant

And

LMM HOLDINGS PTY LTD (ACN 448 408 349) AS THE TRUSTEE FOR THE BRISBANE BMW UNIT TRUST

Respondent

REASONS FOR JUDGMENT

In January, 2015 Liza Griffiths and her husband Graeme Griffiths took delivery of a Mercedes Benz motor vehicle for their private use. Unfortunately, the vehicle was unsuitable because it suffered serious and persistent mechanical breakdowns. The Griffiths, unhappy with the performance of the Mercedes Benz and the dealership from which they purchased it, decided to purchase a replacement vehicle – a BMW 535i Touring model – from the respondent. Unhappily for them, their experience of motor car dealerships did not improve.
This case is about what Dr Griffiths alleges is a failure by Brisbane BMW to honour a representation made by one of its salesman that her new BMW motor vehicle would be delivered by the end of August, 2015. She alleges that the vehicle was not delivered within that timeframe and she was therefore entitled to cancel the purchase contract. She seeks the return of the deposit that she paid when she signed the purchase contract, interest and costs. She also seeks a declaration that Brisbane BMW engaged in misleading and deceptive conduct in contravention of s.18 of the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)).
For its part, Brisbane BMW denies that its salesman made any representations which fixed the time for delivery of the vehicle to a certain time or within a certain period and even if those representations were made, they were in all of the circumstances made on a reasonable basis. Brisbane BMW has a cross-claim for the losses it alleges it sustained by reason of Dr Griffiths’ refusal to complete the purchase contract.
For the reasons that follow, I am satisfied that:
a)Dr Griffiths agreed to purchase a BMW motor vehicle from the respondent;
b)the purchase contract is not uncertain, nor is any term of it unfair for the purposes of the Australian Consumer Law;
c)before the contract of purchase was formed, Brisbane BMW’s salesman did make a representation to Dr Griffiths and her husband that the vehicle she wished to purchase would be delivered by the end of August, 2015;
d)the representation did not become a term of the purchase contract;
e)the representation does not give rise to any operable estoppel against Brisbane BMW;
f)the representation was a prediction or a representation as to a future matter;
g)the salesman did not have reasonable grounds for making the representation;
h)by the making of the representation, Brisbane BMW, by its servant or agent, engaged in misleading and deceptive conduct contrary to s.18 of the Australian Consumer Law;
i)Dr Griffiths did not rely upon the representation when she entered into the purchase contract;
j)Dr Griffiths purported termination of the purchase contract on 8 July, 2015 was ineffective to bring the purchase contract to an end; and
k)Brisbane BMW effectively terminated the purchase contract by letter dated 3 September, 2015 when it accepted Dr Griffiths’ repudiation of the purchase contract.
Consequently, in my view Dr Griffiths claim fails. Brisbane BMW’s cross-claim must succeed..

Background and findings of fact

On 6 June, 2015 Dr Griffiths, accompanied by her husband and her two small children (one aged two years of age and the other two months of age) attended upon the respondent’s dealership in Fortitude Valley, Brisbane for the purposes of negotiating the purchase of a 535i Touring model BMW motor vehicle. They were attended upon by Mr Gregory Johnson, a sales consultant employed by the respondent. Both Dr Griffiths and Mr Griffiths engaged with Mr Johnson throughout the day.
There is no dispute that whenever Mr Griffiths engaged with Mr Johnson he did so as Dr Griffiths’ agent and had her authority to do so. At the various times described later in these reasons, he engaged with Mr Johnson and others from Brisbane BMW on Dr Griffith’s behalf.
Mr and Dr Griffiths arrived at the dealership at about 11:30am and they remained there until at least 3:30pm. During that time they each undertook, separately, a test drive of a motor vehicle similar to the one Dr Griffiths wished to purchase.
After discussions about various options that might be fitted to the vehicle and after decisions were made about colour, upholstery and the like, the discussion between the Griffiths and Mr Johnson turned to when the vehicle might be delivered to them. It is at this point that the evidence of Mr and Mrs Griffiths departs from that of Mr Johnson.
The evidence of both Mr Griffiths and Dr Griffiths was consistent. Their evidence was that they explained to Mr Johnson that they had possession of a loan vehicle whilst they were awaiting the delivery to them of a replacement for their Mercedes Benz vehicle that had been purchased by them earlier in the year. Immediately upon delivery of that new Mercedes Benz motor vehicle to them, they intended to sell it. Accordingly, they wished to have the new BMW vehicle delivered to them by the end of August, 2015 when they had to return the loan car to the Mercedes Benz dealership and take delivery of the new Mercedes Benz. They did not want to drive the new Mercedes Benz because they wished to preserve its condition and improve the price for which they might sell it.
In cross-examination Mr Johnson accepted that those things were explained to him.
Mr Johnson’s evidence-in-chief is contained in an affidavit sworn by him and filed on 28 January, 2016. In that affidavit Mr Johnson says (errors in the original):
12. In relation to the delivery date, because of the difficulty in attempting to predict when a car will be delivered I have always had a practice of not promising any specific date for when the car will be delivered by, I have a longstanding practice of always saying that for a factory ordered vehicle, it generally takes “approximately a month to order, a month to build and, and month to get here, on average” and said to Dr Griffiths and Mr Griffiths and as a result the process takes approximately three to four months for a factory ordered vehicle on average.
Later in the same affidavit Mr Johnson says (errors in the original):
18. The time estimate that I referred to, of generally about three to four months, was a fair estimate for the time taken from the time of making an order, and the time of delivery, based on my long period of experience as a sales consultant for Brisbane BMW which is outlined above.
19. At no point did I suggest that the contract or order for the car could be cancelled if it had not been delivered by 31 August 2015 (or any other date or date period), or that the time or period for delivery was warranted or guaranteed in any way, or that Dr Griffiths or Mr Griffiths could be assured they would receive the car they ordered by 31 August 2015. This would have been contrary to my longstanding practice of referring to the total delivery time only in terms of an estimate and emphasising the variables involved in the process of ordering, building and shipping.
…
22. Nothing else was discussed about delivery time. At no point did I say anything to the effect that delivery by 31 August 2015 was assured or that it would be a guarantee, condition or warranty in relation the purchase. Instead, we had discussed the possibility that the car might be delivered sometime well after 31 August 2015 and if so (as was the case) then we could look into arranging a loan car. At no point did either Mr Griffiths or Dr Griffiths state that they would only purchase the car on the condition or basis it was delivered on or before 31 August 2015 or any other date.
There is considerable difficulty with Mr Johnson’s affidavit evidence. Although no objection was taken to it, the form of the evidence detracts significantly from its probity. There was no attempt by Mr Johnson to set out the conversations that he alleges were had by him with the Griffiths. His affidavit speaks of his usual practice but there is no direct evidence from him about what it was that he in fact said to the Griffiths on the relevant occasion. Whilst he denies having made assurances about a delivery time, his evidence does not set out what he actually said to them.
The Griffiths’ evidence is not much better. There was no attempt by either party to put before the court, in proper form, the conversations that they say took place between the Griffiths and Mr Johnson.
Critically, however, in cross-examination Mr Johnson gave this evidence:
Mr Fisher:     Now, in terms of the needs of Dr Griffiths you were aware, weren’t you, that they had problems with a Mercedes Benz? --- Yes.
And that they were getting rid of this car at the end of August?   --- Yes.
All right. And you accept, then, that Dr Griffiths needed a car by the end of – a car from your dealership by the end of August?   --- Yes.
And you accept that she actually said to you, “We need a car by the end of August”?   --- Yes.
All right. And so – and do you accept that you then said in response to that statement from Dr Griffiths you said something like this, “If you place an order today”, meaning 6 June 2015, “there’s a two to three month build time and the car will be available at the end of August”? --- No.
I’m suggesting you did say that and, in fact, given that Dr Griffiths had said they needed a car by the end of August and that you also wanted to clinch this sale you did, in fact, say that the car would be available at the end of August. That’s correct, isn’t it? --- You’re trying to allude that I’m guaranteeing a car by that time which I did not.
HIS HONOUR:   Can you answer the question now? Don’t worry about what counsel is trying to allude. Answer the question, sir?   --- Then, yes.
…
MR FISHER:   Thank you, your Honour. In fact, Mr Johnston, because you were keen to please Dr Griffith as a repeat customer of Brisbane BMW you, in fact, said that if the order was placed today, 6 June, there’s a two to three month build time and the car will be available at the end of August 2015. That’s right, isn’t it?   --- I never promised an exact date.
Okay. You just agreed with me a few moments ago that the car – you said you agreed with me when I asked you that the car would be available at the end of August. You just agreed with me, didn’t you? --- Yes.
All right. So if I was a fly on the wall looking at your conversation on 6 August, do you accept that the Griffiths had said to you we need a car by the end of August because we’re getting rid of our troublesome Mercedes Benz and you, wanting to please because you’re a good salesman, you say to them we can have it – there’s a two to three month build and we can have a car for you at the end of August. That’s what you’ve just agreed to, isn’t it?   --- Yes.
So as things then stood – not what you think happened later – as things then stood the Griffiths – you said the Griffiths could have a car by the end of August 2015, didn’t you? Look at me, don’t look at your counsel, or look at his Honour? --- Yes.
It is clear from that evidence that Mr Johnson did indeed represent to Dr Griffiths that the vehicle she wished to purchase would be delivered to her by the end of August, 2015. The representation was unequivocal. Given Mr Johnson’s evidence-in-chief about his usual practice and why he adopted that usual practice concerning the delivery of motor vehicles to purchasers, it is a surprising thing for him to have said but, nonetheless, his evidence is that he said it. It demonstrates that he did not follow his usual or standard practice on that occasion.
I am satisfied and I find that Dr Griffiths said to Mr Johnson words to the effect, “I need the car by the end of August at the latest”. I am satisfied and I find that in response Mr Johnson said to Dr Griffiths words to the effect, “If you place an order today there is a two to three month build time and the car will be available at the end of August”.
Accordingly, I am satisfied that Mr Johnson, on behalf of Brisbane BMW made the representation pleaded in paragraph 4.2 of Dr Griffiths’ statement of claim: “If you place an order today, there is a 2 to 3 month build-time and the car will be available at the end of August”. Given Mr Johnson’s own evidence of his understanding of the time it takes for a new vehicle to be delivered and his “usual practice” there could be no reasonable basis for the making of that representation.
Dr Griffiths gave no evidence at all that she relied upon the delivery representation from Mr Johnson about delivery when she entered into the purchase contract. Nowhere in her evidence does she suggest that she was induced to enter into the contract by his representation about delivery. In fact, what Dr Griffiths says in her affidavit filed on 22 December, 2015 is:
“10. We discussed the colour we wanted, the interior, and the options which were available, and he pulled out the swabs for the seat upholstery, and we decided on our selections. The technical options were specified by Graeme. We informed him that we required the vehicle at the end of August, 2015. We informed Johnson that we wanted the BMW at that time, because the new Mercedes was to arrive at the end of August, 2015 and we wanted to sell it straight away.
11. For me, it was the size of the car, visibility and seating position which were the important things.
12. I had previously test driven a Mercedes and I had difficulties with vision because of torso height, my vision was obscured by the B pillar for shoulder checks.
13. From a vision perspective, the BMW did not have the same fault.”
In his affidavit of evidence-in-chief Mr Johnson says:
“21. I recall that Mr Griffiths then referred to the fact that he and Dr Griffiths had already ordered a replacement Mercedes Benz car, and they expected it would be delivered at the end of August, and they were using a loan car from Mercedes Benz until then. I replied that even when that happens, they will still have to spend some time to sell the Mercedes Benz car. Mr Griffiths asked what would happen if they sold the Mercedes Benz straight away, and whether they would be able to obtain a loan vehicle. Although I could not promise that Brisbane BMW would do so (as this required approval from a manager), I said words to the effect that, “We would not want someone who had just bought a $150,000 car left without a car”, referring to the fact that I believed that Brisbane BMW would be willing to loan her a car (a “loan car”) if this happened. Although providing a “loan car” always required approval from a manager, in my experience this would usually have been approved for a customer like Dr Griffiths who was a repeat customer, was coming over from a competitor (Mercedes Benz) and was a member of a “corporate program” (that is, through her AMA membership), which were factors that usually meant, in my experience, a “loan car” would be provided for some time if it had been requested.”
In response to that evidence Mr Griffiths said, in his affidavit in reply:
10. In reply to paragraph 21, the conversation was generally like that reported by Mr Johnson. He did not say that he could not promise to provide a loan car. My recollection is that he said “we will look after you”.
11. In reply to paragraph 22 [of Mr Johnson’s affidavit], the statements made by Mr Johnson are untrue. We informed him that we wanted the car by the end of August, 2015 and the statements reassured us that this could be achieved. From memory, I may have asked the question; “what happens if the car is not provided by the end of August, 2015?” and to that question Mr Johnson said “we will look after you” which I inferred that a loan car would be arranged.
Dr Griffiths did not take any issue with Mr Johnson’s evidence to which I have just referred. Mr Johnson’s unchallenged evidence suggests that Mr Griffiths contemplated the possibility that the new BMW vehicle might not be delivered by the end of August, 2015. He gave evidence in cross-examination that Mr Johnson told him that there were many variables that might impact on the date upon which the vehicle might be delivered but that it usually took a month for the vehicle to be ordered, a month for it to be built and a month for it to be delivered. He wanted to know from Mr Johnson what would happen in the event that the vehicle was not delivered by the end of August. Mr Johnson provided an explanation about what would happen. There is no evidence to suggest that either Dr Griffiths or Mr Griffiths found the explanation unacceptable. Dr Griffiths subsequently entered into the contract.

That evidence satisfies me that the representation by Mr Johnson about the delivery time for the vehicle was not important or essential to Dr Griffiths’ decision to purchase the vehicle. It plainly had some significance to her, but that satisfactory alternative arrangements might be put in place if the vehicle was not delivered by the end of August 2015 demonstrates that delivery by that time was not considered essential, or even important, by her.
The purchase contract was constituted by a printed form entitled ‘Contract for the Purchase of a New Vehicle’. On its face it had various areas that could be completed when the details that needed to be inserted had been ascertained. The reverse consisted of a series of printed terms and conditions. The reverse was entitled ‘CONDITIONS’. The front of the document had areas that could be completed in handwriting and provision for the parties to sign the document. The reverse had only a space for the purchaser’s initials. Dr Griffiths signed the front and reverse pages of the purchase contract.
The front of the purchase contract had a space for the inclusion of an estimated delivery date. It was left blank. The absence of an estimated delivery date, given the conversations about when the vehicle might be delivered and what would happen if the vehicle was not delivered by the end of August, 2015 tends to suggest that by the time the written form was signed and the contract was made, a precise time for delivery was no longer important.
The front of the purchase contract has a space for the inclusion of ‘Special Conditions’. In that space was printed the words, ‘No Other Offer Applies subject to Finance 5 yr 15km gfv $2299.00 p/m epp AMA memeber (sic)’.
Clause 4 of the ‘CONDITIONS’ on the reverse of the purchase contract dealt with finance. However, that clause had no operation in this particular contract because a precondition to its operation - that certain details should be filled in on the front of the purchase contract - had not been met. The relevant portion of the front page of the purchase contract had been left blank. Accordingly, clause 4 of the standard terms and conditions of the purchase contract was not engaged and did not operate.
However, by the special condition inserted into the contract of sale it was expressed to be “subject to finance”. It is entirely unclear what Dr Griffiths meant by that phrase. The submissions made on her behalf did not assist. Brisbane BMW contended that the phrase meant that the contract was subject to Dr Griffiths securing a finance approval sufficient to permit her to complete the purchase of the motor vehicle according to the terms of the contract. However, the evidence shows that Dr Griffiths intended to seek finance from an organisation called BMW Finance to finance the vehicle purchase. She had previous experience with BMW Finance and wished to finance the vehicle pursuant to what was described as a “full circle” package. She wanted a guaranteed future value for the vehicle at the end of the finance period – the abbreviation “gfv” signified that. Dr Griffiths specified in the written contract the amount she wished to pay by way of monthly lease payments for the vehicle, namely $2299 per month.
It is unsurprising then that Brisbane BMW took up the challenge of obtaining finance approval for Dr Griffiths. Although the point was not the subject of argument or evidence, it seems tolerably clear that she gave implicit authority to Brisbane BMW to do that for her.
On 6 June, 2015 Mr Craig Henderson was employed by BMW Brisbane. He was also an authorised representative of BMW Finance Australia Ltd which trades as “BMW Finance”. In his role as authorised representative of BMW Finance, Mr Henderson was given the task of processing what was said to be an application for finance by Dr Griffiths for the purposes of the purchase contract. To that end, at about 5:30pm on 6 June, 2015 and after Mr and Dr Griffiths had returned home from the showroom, Mr Henderson telephoned Dr Griffiths. According to his evidence, he did that for the purposes of obtaining from her details sufficient to complete an application for finance. According to Dr Griffiths’ evidence the conversation took about 10 minutes and, because she had the care of two small children, she was distracted and unable to properly engage in the conversation with Mr Henderson. After providing him, she says, with some general details about her income and assets, she asked Mr Henderson to put his requests in writing via an email to her and she would respond in due course. According to Mr Henderson’s evidence, however, he and Dr Griffiths had a conversation wherein she provided to him all of the information that he required.
Some of the differences between Dr Griffiths evidence and Mr Henderson’s evidence are more apparent than real. For example Dr Griffiths says that she told Mr Henderson that before she ceased work to have her youngest child she had been earning $12,000 to $14,000 per month. She expected to begin earning again and she had just returned to work. She told him, she says, that she expected it to take some months before she could earn her pre-confinement income. Mr Henderson says that he asked Dr Griffiths, based on her previous earnings, what she expected to be earning on a monthly basis. He says that she replied by saying “about $12,000 to $14,000 per month”. Mr Henderson than says “I was aware that she was only going back to work soon, but also aware the car would only be delivered in some months’ time, which is when she is expected to be earning this level of income again and she would not have to pay loan repayments until the car was delivered.”
It is apparent from Mr Henderson’s evidence that whatever it was that Dr Griffiths said to him, he knew that at the time he was completing the application for finance Dr Griffiths was not earning $12,000 to $14,000 per month. He knew that she had either just returned to work or be going back to work soon and that she would only be earning $12,000 to $14,000 per month in “some months’ time” which was when she expected to be earning that level of income again. In my view, the gravamen of the conversation alleged by Dr Griffiths was in fact conveyed in the conversation between she and Mr Henderson and Mr Henderson understood what he had been told. Notwithstanding that, Mr Henderson completed the finance application by including as Dr Griffiths’ present income, the sum of $14,0000 per month. It was wrong of him to record in the finance application that she was earning at the time of their conversation, $14,000 per month.
Dr Griffiths says that Mr Henderson kept asking her about expenses. His evidence is that he asked her about her expenses. I prefer Dr Griffiths’ evidence that she asked Mr Henderson to stop asking her questions and that she told him that he should write down his questions in an email to her and she would respond when she was able to provide accurate information.
The evidence shows that Dr Griffiths had made an earlier application for finance with BMW Finance in 2012. A form recording her assets, liabilities, income and expenses similar to that being completed by Mr Henderson on 6 June, 2015 had been completed for the purposes of the 2012 finance application. It was put to Mr Henderson in cross-examination that in fact he had used that form and the details in it to complete the finance application on 6 June, 2015. He denied that and said that the “system” would not allow him to access that information. It is difficult to understand why that is so when his own evidence was that the finance application with which he was dealing had come to him “pre-populated” with Dr Griffiths’ details because she was already an existing customer in the BMW finance system. Mr Henderson was an authorised representative of BMW Finance. In those circumstances, it is difficult to understand, and it was not adequately explained in the evidence, why those earlier details would not have been available to Mr Henderson.
Although Mr Henderson denied the suggestion, in my view it is likely, and I find, that the loan application details that were submitted by Mr Henderson for Dr Griffiths’ finance on 6 June, 2015 to BMW Finance were obtained by him from the information already held on the BMW Finance system in relation to Dr Griffiths. Given Dr Griffiths’ evidence that she did not provide some of the recorded information to Mr Henderson, which I accept, there is no other likely explanation. Apart from the conversation about her income, which Mr Henderson misrepresented in the finance application, all of the other details were completed from the earlier application.
According to Mr Henderson’s evidence, and that of another witness who gave only oral evidence, Ms Amy Crosby, BMW Finance operates an automated finance approval system. A loan application, such as that completed by Mr Henderson for Dr Griffiths, is submitted electronically to BMW Finance’s loan application system and it is processed electronically through that system and approval is either granted or withheld. It can happen without the particular customer seeking the finance sighting, or signing, any documents including an application for the provision of finance. That is what occurred in this case. Mr Henderson says that he submitted Dr Griffiths’ application for finance at 5:38pm on 6 June, 2015. The authority by which he did that was not clearly established in the evidence although it seemed to be assumed that the finance arrangements would be taken care of by Brisbane BMW.
He says that at that time he received an email from BMW Finance’s loan application system which approved the loan application.
However, the approval was not unconditional. At best, it was a conditional approval because Dr Griffiths needed to verify the financial information that she had provided (or Mr Henderson had otherwise obtained) for the purposes of the application and provide further information. Those matters according to the evidence of Ms Crosby are generally attended to at settlement when the motor vehicle is delivered and the funds are provided for its purchase. At that point the customer obtaining the finance provides a signed confirmation of the details contained within the loan application form.
In my view, such a loan approval was not an approval for the purposes of the special condition contained within the contract of sale between Dr Griffiths and Brisbane BMW. That special condition required an unconditional finance approval. No such unconditional finance approval was obtained by her or on her behalf. In those circumstances the condition was not fulfilled.
On 11 June, 2015 Mr Griffiths had a telephone discussion with Mr Johnson. He recorded the telephone conversation and a transcript is in evidence. There was discussion about the delivery of the vehicle. That discussion confirms, in my view, that Dr Griffiths did not rely upon the representation made by Mr Johnson about delivery of the vehicle by the end of August. I will not set out the conversation in full in these reasons, but in my view it is consistent with an understanding that Brisbane BMW would probably have the vehicle available by the end of August but that it might not be able to be delivered then.
At the end of the telephone conversation, Mr Johnson undertook to check some matters for Mr Griffiths and then get back to him that day.
A couple of days later, Mr Johnson telephoned Mr Griffiths and told him that, for reasons not now relevant, the vehicle would be built in Germany in August, 2015 and would “probably” be delivered in October, 2015. Mr Griffiths says that he asked about the loan car that Mr Johnson had offered during their meeting in the showroom, but that Mr Johnson told him that because the “build time” was so long, a loan car could not be made available. Mr Johnson’s evidence is that he offered to make a loan car available.
I also have evidence from Mr Mark Korunich who was, at the relevant time, employed by Brisbane BMW in the position of New Car Sales Manager. He gave evidence that he had a telephone conversation with Mr Griffiths on 19 June, 2015 in which Mr Griffiths said that he wanted to cancel the purchase contract for the motor vehicle. Mr Korunich swore that he told Mr Griffiths that he could have a loan vehicle until his purchased vehicle was delivered. He says that Mr Griffiths sounded surprised at the suggestion and that he undertook to speak with Dr Griffiths about that. He did not, however, hear from Mr Griffiths again. Although Mr Griffiths made and filed an affidavit in reply to the affidavits made by the witnesses for Brisbane BMW, he took no issue with Mr Korunich’s evidence. I accept his evidence.
On 8 July, 2015 Dr Griffiths’ sent Brisbane BMW an email saying that because the motor vehicle was not going to be delivered by the August, 2015 deadline, she wished to “withdraw” from the contract and not proceed with it.
On 10 July, 2015 Brisbane BMW responded in writing to Dr Griffiths pointing out that there was a contract in place for the purchase of the vehicle. The letter reiterated the offer to make a loan vehicle available until the purchased vehicle was delivered. The letter put her on notice that Brisbane BMW would seek damages pursuant to the contract in the event that she did not meet her obligations under the contract.

Consideration

Dr Griffiths proposes a number of arguments, some inconsistent with others, in support of her case. Having regard to her statement of claim, her counsel’s written submissions and the oral submissions made at the conclusion of the trial, it seems that she contends:
a)the representation as to delivery was a term of the purchase contract, the breach of which entitled her to terminate the contract and receive back her deposit;
b)if it was not a term of the contract, it was a representation which founds an estoppel which operates to prevent Brisbane BMW from asserting that the representation was not a term of the contract;
c)alternatively, it was a pre-contractual representation as to a future matter which is deemed to be misleading and deceptive for the purposes of the Australian Consumer Law and which entitles her to terminate the contract and receive back her deposit;
d)alternatively, the purchase contract was so uncertain in its terms that it could not be said that there was any contract between the parties at all and it is therefore void; and
e)alternatively, all of the terms of the contract are unfair as that term is used in s.23 of the Australian Consumer Law and she is entitled to have all of the terms declared void on that basis.
Brisbane BMW’s cross-claim is simple enough. It claims that Dr Griffiths breached the contract and it is entitled to damages for non-acceptance.
It is convenient to deal with Dr Griffiths’ arguments in a slightly different order than the order in which they were presented.

Was there a contract at all?

Dr Griffiths contends that the purchase contract is “incomplete and so it is void”. She relies upon, amongst other things, a passage from Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 604, where Gibbs CJ, Murphy and Wilson JJ said:
It is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future.
She submits that the purchase contract is incomplete because:
a)the contract between the parties includes but is not limited to the form of a document styled “Contract for the Purchase of a New Vehicle”;
b)the purchase contract makes provision for “Estimated Delivery Date” yet this is incomplete; and
c)the contract is “subject to finance” and to understand the contract’s terms about that (Condition 4), a finance date has to be inserted in the contract. There is no finance date and so the purchase contract is incomplete;
Dr Griffiths argues that the “parties have not agreed on all of the essential terms, and so there is no contract between them.”
I do not understand the first point made by Dr Griffiths that I have summarised above. The purchase contract is a written document. Subject to what I say below about Dr Griffiths’ argument about the delivery representation, it might be said to be partly written and partly oral, but I will come to that shortly. The contract consists of the written purchase contract and perhaps the oral statement about delivery.
Notwithstanding her argument that there is an oral term of the contract about delivery of the vehicle, Dr Griffiths argues that the contract is uncertain because no date for delivery is specified in the written contract. Whilst the contract makes provision for the insertion on the front page of an estimated delivery date and whilst on one view leaving that section blank might make the written agreement incomplete, it does not render the contract uncertain. The uncertainty is cured by the operation of the general rule that where the contract is silent as to the time for the delivery of the goods the subject of the contract, delivery is to be made within a reasonable time: Ellis v Thompson (1838) 3 M. & W. 445, 456; Jones v Gibbons (1853) 8 Exch. 920 at 922; Hick v Raymond and Reid [1893] AC 22.
Here, notwithstanding that the contract was silent as to delivery because that part of the front page that made provision for the insertion of an estimated date for delivery was left blank, delivery of the vehicle to Dr Griffiths was to take place within a reasonable time of the parties making the contract.
The special condition to the effect that the contract is “subject to finance” does not make the contract uncertain. Courts will generally strive to give a term in a contract meaning. Clauses such as the stipulation in this contract are generally valid. In Meehan v Jones (1982) 149 CLR 571, the High Court was asked to determine whether a contract that was said to be subject to a special condition that the purchaser receives approval for finance “on satisfactory terms and conditions in an amount sufficient to complete the purchase hereunder” was uncertain. The Court unanimously held it was not. Mason J, with whom Wilson J agreed, held that such clauses are to be construed objectively. That is to say, a purchaser is bound to act reasonably in deciding whether the terms of an offer of finance are “satisfactory”. Gibbs CJ said such a term could also be construed subjectively, in the alternative. That is to say, the relevant clause requires the purchaser to obtain finance that it actually finds is satisfactory. In any event, as Gibbs C.J. said, “[i]t is only if the court is unable to put any definite meaning on the contract that it can be said to be uncertain.”
In the present case, the “subject to finance” clause is not too indefinite to be construed. The complete term inserted in the written document is “subject to Finance 5 yr 15km gfv $2299.00 p/m”. Both Dr Griffiths and Mr Johnson gave evidence about what the abbreviations in that phrase stood for. The finance to be secured was over a five year term requiring payments of $2299 per month. A balloon payment at the end of the term was contemplated by Dr Griffiths. The essential terms of the finance to be obtained were specified in the phrase itself. Dr Griffiths’ counsel argued that given that 5 years of payments at $2299.00 per month falls short of the whole purchase price set out in the purchase contract, the term is uncertain. But I do not think that is the case. Dr Griffiths was after a particular finance product provided by BMW Finance which required monthly payments and then a balloon payment at the conclusion of the finance term. The requirement for a balloon payment at the conclusion of the term provides an explanation for the difference in the purchase price and the sum of the monthly repayments over five years.

A second basis for determining that the finance clause is uncertain is that it provides no time within which the finance is to be secured. It will be recalled that clause 4 of the printed terms of the purchase contract has no application and so the time frames set out in that clause have no application either. However, where no time is specified for the performance of a contractual obligation, the law imposes a requirement that the obligation be performed within a reasonable time: Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 543.
The finance clause inserted in the purchase contract is plainly a condition precedent to the obligations of Dr Griffiths to perform the purchase contract as the submissions for the respondent conceded. I will return to the finance clause later in these reasons, but for present purposes it is sufficient to find that the finance clause does not render the purchase contract uncertain. In any event, even if it did, the clause is severable from the rest of the purchase contract as the parties contemplated in clause 17 of the purchase contract:
17. Severability. Any provision of this Contract, which is invalid or unenforceable, is ineffective to the extent of the invalidity unenforceability without affecting the remaining provisions of this Contract. The parties will negotiate in good faith to replace any such provision with a provision which is valid and enforceable and consistent with the intention of this Contract, so far as is reasonably practicable
The result is that in either event the purchase contract is not void for uncertainty.
Accordingly, the purchase contract is not “incomplete and so … void” as contended for by Dr Griffiths because the date for delivery is not specified in the purchase contract or because it is subject to finance.

Are the terms of the contract or any of them unfair?

Before dealing with this claim in closer detail, it is appropriate to record that in cross-examination Dr Griffiths gave evidence that on the day the purchase contract was signed, she and Mr Griffiths were given the opportunity to negotiate with Mr Johnson many of the aspects of the purchase contract. She confirmed that they took that opportunity. They negotiated on price and on the finance terms recorded in the special condition. There was no suggestion from Dr Griffiths or Mr Griffiths that they perceived that they were in an unusual bargaining position compared to Brisbane BMW.
Dr Griffiths argues that many of the terms of the purchase contract are unfair within the meaning of that phrase as used in s.23 of the Australian Consumer Law. In particular she argues that the following terms are unfair for the purposes of the Australian Consumer Law:
32.1 Condition 2 of the Conditions forming part of the Contract whereby the Respondent as the “Dealer” alone can increase the purchase price of the motor vehicle; and/or
32.2 The omission of any Finance Date from the Contract; and / or
32.3 The adherence by the Applicant to the Contract if the Applicant fails to notify the Respondent in writing to be delivered no later than 5 PM on the next business day after the Finance Date that the Applicant as the “Customer” has not been able to obtain finance on terms reasonably satisfactory to her; and / or
32.4 The document forming part of the Contract not containing an estimated delivery date; and/ or
32.5 The print and font size of the Conditions part of the Contract being in Ariel font size 6.5; and / or
32.6 The Conditions forming part of the Contract including by Condition 5 provision to the effect for the Respondent as the “Dealer” to complete any documentation on behalf of the Applicant as the “Customer” required by a proposed financier to give effect to any financing arrangement; and/ or
32.7 The Conditions forming part of the Contract by Condition 7 affording the Respondent as the “Dealer” rights to be exercised in the event of default by the Applicant as the Customer; and / or
32.8 The Conditions forming part of the Contract by Condition 8 authorising the Respondent as the Dealer to complete information relating to the registration number, engine number, your of manufacture and compliance date in the document forming part of the Contract; and/ or
32.9 The Conditions forming part of the Contract by Condition 10 excluding implied warranties applicable under the Competition and Consumer Act 2010 (Commonwealth); and/ or
32.10 The Contract providing for 60 monthly instalments of $2,299 per month (making a total of $137,940) whereas the total purchase price and the total settlement amount is $142,069.01; and/ or
There is no dispute between the parties that the purchase contract is a consumer contract for the purposes of s.23 of the Australian Consumer Law. However, there is no basis for suggesting that any of the terms identified by Dr Griffiths was an unfair term for the purposes of that law. Whether a term of a consumer contract is unfair is determined by the tests set out in s.24 of the Australian Consumer Law:
24 Meaning of unfair
(1) A term of a consumer contract is unfair if:
(a)     it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b)     it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:
(a)     the extent to which the term is transparent;
(b)     the contract as a whole.
(3) A term is transparent if the term is:
(a)     expressed in reasonably plain language; and
(b)     legible; and
(c) presented clearly; and
(d)     readily available to any party affected by the term.
(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.
In my view, none of the terms identified by Dr Griffiths is unfair as that word is used in s.24. Dealing with each seriatim:
a)“Condition 2 of the Conditions forming part of the Contract whereby the Respondent as the “Dealer” alone can increase the purchase price of the motor vehicle” is not unfair because it also provides that if the price is increased, the purchaser can terminate the contract. The term does not reveal a significant imbalance in the parties’ rights and obligations. It appears that it is reasonably necessary to protect the respondent’s legitimate interests and it causes no detriment to the purchaser who can terminate the contract.
b)The omission of any Finance Date from the purchase contract and Dr Griffiths other arguments based upon clause 4 of the purchase contract are irrelevant because that clause had no application in this purchase contract. It was not part of the contract.
c)“The document forming part of the Contract not containing an estimated delivery date” – this allegation is unintelligible because it does not refer to a term of the purchase contract.
d)“The print and font size of the Conditions part of the Contract being in Ariel font size 6.5” does not make, presumably, the whole of the terms and conditions unfair. There is nothing to suggest that Dr Griffiths had difficulty reading the terms that she signed or that a reasonable person would have any difficulty.
e)“The Conditions forming part of the Contract including by Condition 5 provision to the effect for the Respondent as the “Dealer” to complete any documentation on behalf of the Applicant as the “Customer” required by a proposed financier to give effect to any financing arrangement”. It was not suggested how this was unfair and would cause a significant imbalance in the parties’ rights and obligations arising under the purchase contract. It appears to me to be facilitative. It may not be reasonably necessary in order to protect the legitimate interests of Brisbane BMW if there was some evidence to establish that Brisbane BMW would be advantaged by the term. But that of itself does not make the term unfair in my view. It is difficult to see how it would cause detriment (whether financial or otherwise) to Dr Griffiths if it were to be applied or relied on by Brisbane BMW.
f)“The Conditions forming part of the Contract by Condition 7 affording the Respondent as the “Dealer” rights to be exercised in the event of default by the Applicant as the Customer”. This clause is the basis of the respondent’s cross-claim against Dr Griffiths. I will deal with it later in these reasons.
g)“The Conditions forming part of the Contract by Condition 8 authorising the Respondent as the Dealer to complete information relating to the registration number, engine number, your of manufacture and compliance date in the document forming part of the Contract”. In my view this clause is unobjectionable. The contract was for the sale of future goods (as pleaded by Dr Griffiths). Details such as the engine number, manufacture details and registration number must necessarily have not been available at the time of the contract. It is difficult to see how this clause leads to significant imbalance in the parties’ rights and obligations arising under the contract or how it would cause detriment to either party if it were to be applied or relied on.
h)“The Conditions forming part of the Contract by Condition 10 excluding implied warranties applicable under the Competition and Consumer Act 2010 (Commonwealth)”. This clause does not operate to exclude all implied warranties provided in the Competition and Consumer Act, only those capable of exclusion by agreement. My attention was not drawn to any particular warranty implied by that Act that was excluded by the operation of this clause. It was not demonstrated on the facts how the clause creates or causes a significant imbalance in the parties’ rights and obligations arising under the contract.
i)The Contract providing for 60 monthly instalments of $2,299 per month (making a total of $137,940) whereas the total purchase price and the total settlement amount is $142,069.01; I have dealt with the finance clause elsewhere. But for present purposes it is sufficient to notice that this clause does not cause or create any significant imbalance in the parties’ rights and obligations arising under the contract. It is plainly inserted for Dr Griffiths’ benefit.
I am not satisfied that any particular clause in the purchase contract is unfair within the meaning of that term as used in s.23 of the Australian Consumer Law.
In any event, save for the default clause (cl.7 of the purchase contract) which I have dealt with separately later in these reasons, that any of the individual clauses identified to be unfair for the purposes of s.24 of the Australian Consumer Law does not lead to the conclusion that whole contract is unfair and therefore void. Section 24 operates upon individual clauses. It might be that if a sufficient number of clauses of a particular contract are found to be unfair, the contract will fail as a whole. But that is not case here. In my view none of the clauses identified by Dr Griffiths are unfair for the purposes of s.23 of the Australian Consumer Law.

The delivery representation – a term of the contract or something else?

A pre-contractual representation might become a term of the resulting contract, or it may attain the status of a “collateral contract”. In Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Gibbs CJ explained, at 61:
20. A representation made in the course of negotiations which result in a binding agreement may be a warranty - i.e. it may have binding contractual force - in one of two ways: it may become a term of the agreement itself, or it may be a separate collateral contract, the consideration for which is the promise to enter into the main agreement. In either case the question whether the representation creates a binding contractual obligation depends on the intention of the parties. In J.J. Savage &Sons Pty. Ltd. v. Blakney (1970) 119 CLR 435, at p 442 and Ross v. Allis-Chalmers Australia Pty. Ltd. (1980) 55 ALJR 8, at pp 10 and 11, it was said that a statement will constitute a collateral warranty only if it was “promissory and not merely representational”, and it is equally true that a statement which is “merely representational” - i.e. which is not intended to be a binding promise - will not form part of the main contract. If the parties did not intend that there should be contractual liability in respect of the accuracy of the representation, it will not create contractual obligations. In the present case Mr Blackman, who made his statements fraudulently, had of course no intention that they should amount to contractual undertakings, but he could not rely on his secret thoughts to escape liability, if his representations were reasonably considered by the persons to whom they were made as intended to be contractual promises, and if those persons intended to accept them as such. The intention of the parties is to be ascertained objectively; it “can only be deduced from the totality of the evidence”: Heilbut, Symons &Co. v. Buckleton (1913) AC 30, at p 51. In other words, as Lord Denning said in Oscar Chess Ltd. v. Williams (1957) 1 WLR 370, at p 375:
The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice.
The intelligent bystander must however be in the situation of the parties, for “what must be ascertained is what is to be taken as the intention which reasonable persons would have had if placed in the situation of the parties”: Reardon Smith Line v. Hansen-Tangen (1976) 1 WLR 989, at p 996.
Dr Griffiths argues that the representation as to delivery was a condition of the contract between she and Brisbane BMW. In my view, however, it was not. The representation does not attain the status of a term of the contract because:
a)Objectively, it was not promissory in nature. It was a statement of expectation or belief by Mr Johnson and the evidence of Mr Griffiths in particular demonstrates that it was understood in that way;
b)Subjectively, Dr Griffiths did not, I find, consider the delivery representation to be promissory in nature. For the reasons I have set out more fully below, I have concluded that Dr Griffiths did not rely upon the delivery representation made by Mr Johnson. That is consistent with the delivery representation not being considered by her as a promise. Her evidence and that of Mr Griffiths indicates that whilst the delivery time was important, it was not so critical that absent a promise that the vehicle would be delivered by the end of August, Dr Griffiths would not have entered into the contract. Her own evidence contemplated that the vehicle might be delivered in September;
c)Moreover, the printed form of the contract of sale made provision for the insertion of an estimated date of delivery. That part of the pre-printed form was left blank. Were it the case that Dr Griffiths considered that the representation made by Mr Johnson about delivery was in fact a term of the contract, one would have expected that to have been inserted in the pre-printed form. It was a simple matter. However, it was left blank.
An intelligent bystander would not, in my view, infer that a warranty about the delivery of the vehicle by the end of August was intended. The delivery representation was not a term of the contract or a collateral warranty, the consideration for which was the making of the purchase contract.
It follows that there was no anticipatory breach by Brisbane BMW of an essential term of the contract which entitled Dr Griffiths to terminate that contract. There was no term, essential or otherwise, that the vehicle would be delivered to her by the end of August, 2015 as she pleads.

Delivery within a reasonable time

Because the purchase contract was silent as to the time for delivery of the vehicle, the law implies a term that delivery shall take place within a reasonable time. What is a reasonable time is a question of fact that depends upon the nature of the contract and all of the circumstances of the case.
Here, the evidence of the witnesses for Brisbane BMW was that from the time of order, a period of three to four months is generally seen as an appropriate and reasonable time for delivery. There are many variables that might affect a vehicle’s delivery date, but generally speaking three to four months was seen by the witnesses to be a reasonable time.
Brisbane BMW did not propose to deliver the vehicle within three to four months of the vehicle’s order date. It proposed to deliver the vehicle in October, 2015, some five months after its order (depending upon when in October it was delivered). There is a suggestion in some of the evidence that delivery might not take place until November, 2015.
Brisbane BMW’s notified inability to deliver the vehicle within three to four months of its order might have been a breach of the implied tem that it would be delivered within a reasonable time. But Dr Griffiths did not purport to terminate the contract on that basis and it was not the basis upon which she put her case.
In any event she would, however, only be entitled to do so if the implied term concerning the time of delivery was an essential term of the contract: Foran v Wright (1989) 168 CLR 385; Perri v Coolangatta Investments Pty Ltd at p.554. Whether the implied term for delivery within a reasonable time was an essential term given cl.13 of the terms of the purchase contract which made time of the essence was not the subject of argument (cf. Perri v Coolangatta Investments Pty Ltd at 555). Dr Griffiths did not put her case on that basis.

Misleading and deceptive conduct

As I have set out above, I am satisfied that Mr Johnson made the delivery representation pleaded by Dr Griffiths. I am satisfied that it is a representation as to a future matter. I am satisfied that Mr Johnson did not have reasonable grounds for making the representation. His own evidence was that it would take at least three to four months for a vehicle to be delivered from the time it was ordered. The evidence of Mr Korunich was to the same effect. According to both gentlemen there were many variables involved and so an accurate delivery date could not be given. In those circumstances there could be no reasonable basis for suggesting that the vehicle would be delivered by the end of August, 2015.
However, to succeed on her claim under s.236 of the Australian Consumer Law, Dr Griffiths must prove that she suffered loss and damage because of the misleading and deceptive conduct of Brisbane BMW. In a case such as the present that requires proof that she was induced by the representation to enter into the contract. That is to say, she must satisfy the Court that she relied upon the representation as to delivery when she made the contract. It need not be the sole inducement, or even a major inducement, but it needs to be part of the reason why she made the contract with Brisbane BMW. Such a finding is necessary if Dr Griffith’s case is to succeed: Gould v Vaggelas (1984) 157 CLR 215 at 236; Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd (1998) 38 FCR 471 at 483.
I have considered carefully Dr Griffiths’ two affidavits of evidence-in-chief and those of Mr Griffiths. I have considered what they have said in oral evidence when cross-examined. At no time did Dr Griffiths (or Mr Griffiths for that matter) give any express evidence that she relied upon the representation made by Mr Johnson for the purposes of entering into the contract. Nor did she give evidence that she was induced by that representation to enter into the contract. There is no direct evidence upon which I might make a finding of inducement or reliance by Dr Griffiths.

But the absence of direct evidence about those matters is not fatal. As with most findings of fact, I might draw appropriate inferences from other proven facts. I might infer, if the proven facts support the inference, that Dr Griffiths relied upon the representation as to delivery and was induced by it to enter into the contract: Gould v Vaggelas at 236; Dominelli Ford (Hurstville) Pty Ltd v Karmot Auto Spares Pty Ltd at 483; Barnes v Forty Two International Pty Limited (2014) 316 ALR 408 at [184].
Dr Griffiths might argue (although she did not) that I should infer from the circumstances I have found above that she relied upon Mr Johnson’s representations about delivery when she entered into the contract. She might argue (although she did not) that the very fact that conversations were had about delivery of the vehicle might tend to suggest that delivery was important to her and were it not for the representation made by Mr Johnson she would not have entered into the contract. But there is evidence which is against that proposition.
Given the:
a)recognition by Mr Griffiths and Dr Griffiths that the vehicle might not be delivered by the end of August, 2015 as revealed by the uncontroversial conversation with Mr Johnson concerning what would occur if the vehicle was not delivered by the end of August, 2015 (i.e., the provision of a loan car);
b)the apparent satisfaction that Dr Griffiths and Mr Griffiths had with Mr Johnson’s answer to that question;
c)the failure by the parties, and in particular Dr Griffiths, to set out an estimated delivery time for the vehicle in that part of the form specifically reserved for that purpose; and
d)Dr Griffiths’ own evidence in her affidavit filed on 15 February, 2016 that she felt assured that the vehicle would “arrive by approximately early September”
I am not prepared to infer that Dr Griffiths relied upon the representation that “If you place an order today there is a two to three month build time and the car will be available at the end August” when she entered into the contract. Nor I am not prepared to infer that she was induced by that representation to enter into the contract. In my view, it played no part in her decision to enter into the vehicle purchase contract with Brisbane BMW.
It is worthwhile repeating Dr Griffiths’ evidence that I have extracted earlier:
“10. We discussed the colour we wanted, the interior, and the options which were available, and he pulled out the swabs for the seat upholstery, and we decided on our selections. The technical options were specified by Graeme. We informed him that we required the vehicle at the end of August, 2015. We informed Johnson that we wanted the BMW at that time, because the new Mercedes was to arrive at the end of August, 2015 and we wanted to sell it straight away.
11. For me, it was the size of the car, visibility and seating position which were the important things.
I reject Dr Griffiths’ submissions that, “That is the very statement that has led the Applicant to sign a document (albeit incomplete and so void) in order to buy the motor vehicle.”
Accordingly, while I am satisfied that Brisbane BMW engaged in misleading and deceptive conduct when Mr Johnson made the delivery representation, I am not satisfied that Dr Griffiths has suffered any loss or damage because of that conduct.

Does the delivery representation found an estoppel?

Dr Griffiths also argued that the representation as to delivery gave rise to an estoppel which prevented the respondent from asserting that it was not a condition of the contract that the vehicle would be delivered by the end of August, 2015. To succeed with this argument she must establish that Brisbane BMW induced in her an assumption about the terms of the purchase contract (i.e., that the vehicle would be delivered by the end of August, 2015), that Brisbane BMW had knowledge of the assumption under which Dr Griffiths was acting and that she acted upon that assumption. However, in my view, Dr Griffiths can establish none of those matters.
For the reasons I have given above, the delivery representation was not promissory in nature. It was inapt to engender in Dr Griffiths, either objectively or subjectively, an assumption that the contract included a term that the vehicle would be delivered by the stipulated date. Further, there is no evidence that even if such an assumption arose on Dr Griffiths’ part, any relevant person from Brisbane BMW knew of the assumption under which she was proceeding.
In any event, even if I am wrong about those matters, it is necessary that Dr Griffiths establish that she acted upon the assumption induced in her by the representation said to give rise to the estoppel: Low v Bouverie [1891] 3 Ch 82 at 111. Perhaps put another way, she needed to establish that she relied upon the delivery representation. As I have indicated above there is no evidence of reliance by her on the delivery representation. In my view she did not act upon the delivery representation when she entered into the purchase contract. She entered into the purchase contract knowing that if the vehicle was not delivered by the end of August, she would be given a loan car until it became available.
Her claim based on estoppel must fail.

Conclusions – the purchase contract

Accordingly, I am of the view that:
a)the delivery representation did not form part of the purchase contract;
b)the purchase contract is not void for uncertainty; and
c)no term of the purchase contract is unfair within the meaning of that word in s.23(1) of the Australian Consumer Law.
Dr Griffiths attempt to terminate the contract by her letter of 8 July, 2015 was ineffective. The reasons for which she purported to terminate the contract were not open.
Whilst I am of the view that Brisbane BMW engaged in conduct that was misleading or deceptive when Mr Johnson made the delivery representation, Dr Griffiths did not suffer any loss or damage because of that conduct because she did not rely upon the representation. For similar reasons her claim that Brisbane BMW is estopped from denying a term in the contract for which she contends, must also be rejected.

Brisbane BMW’s cross-claim

Brisbane BMW claims that by a letter dated 3 September 2015 from its solicitors to Dr Griffiths’ solicitors it terminated the purchase contract on the grounds that:
a)Dr Griffiths maintained the purchase contract was void for uncertainty;
b)Dr Griffiths maintained the purchase contract was void for unfairness;
c)Dr Griffiths denied the existence of the purchase contract; and
d)thereby she repudiated the purchase contract.
Dr Griffiths admits the correspondence but claims that the contract had earlier been terminated by her for the reasons already canvassed above. Whether her termination of the purchase contract was valid or not, she had clearly evinced an intention not to perform her obligations under the contract. Denying the existence of a contract and indicating a refusal to be bound by its terms is generally seen as a repudiation of that contract: The Australian Coarse Grains Pool Pty Ltd v The Barley Marketing Board (1989) 1 Qd R 499 at 504 – 505, 513. I accept that Dr Griffiths repudiated the contract and Brisbane BMW was entitled to accept her repudiation.
In answer to this claim Dr Griffiths argues that the purchase contract was subject to finance and there was no finance approved as contemplated by the purchase contract. Accordingly, she argues that the contract was not extant in any event. That is to say, there was no contract for Brisbane BMW to terminate on 3 September, 2015.
I accept that the special condition relating to finance should be interpreted as meaning that the contract was subject to Dr Griffiths securing finance approval in the terms specified in the finance condition and sufficient to permit her to complete the purchase of the motor vehicle according to the terms of the contract. There was no time limited in the contract for her to do that.
The finance condition was not a condition precedent to the formation of a binding contract. It is clear that the purchase contract came into existence upon the parties signing that document. They were each subjected to obligations from that point. Dr Griffiths was liable to pay and did pay a deposit. She was obliged to do all that was reasonable to secure finance approval according to the finance condition and to do that within a reasonable time. The finance condition was clearly a condition precedent to the performance of the obligations of the parties under the purchase contract to complete the sale.
The consequence of that, however, is that the contract remained on foot until it was terminated for non-fulfilment of the condition: Perri v Coolangatta Investments Pty Ltd (above). However, Dr Griffiths never attempted to terminate the contract for non-fulfilment of the finance condition. Her other attempts to terminate the contract were ineffectual for the reasons I have given above. Whether finance was approved or not, the contract remained on foot at the time Brisbane BMW accepted Dr Griffiths’ repudiation of the contract and terminated it.
Brisbane BMW’s termination of the contract was lawful and effective. Dr Griffiths had repudiated the contract and Brisbane BMW had done what it was entitled to do – accept her repudiation and terminate the purchase agreement.
Brisbane BMW argues that cl.7 of the conditions to the purchase contract are engaged. That cause is in the following terms:
7. Default If the Customer defaults in observing any of the terms of this Contract then, without prejudice to any other rights and remedies, the Dealer may resell the Vehicle with no liability to the Customer and:
(a) Forfeit and retain any monies paid by the Customer as a Forfeitable Holding Deposit;
(b) Recover from the Customer by way or liquidated damages an amount representing 10% of the Purchase Price;
(c) Recover from the Customer its reasonable expenses and costs incurred as a result of such default; and/or
(d) Retain any Trade-in and/or proceeds of sale of the Trade-in on account or any damages suffered.
However, Dr Griffiths did not default in observing any of the terms of the purchase contract before it was terminated by Brisbane BMW. On Brisbane BMW’s case, she had made an application for finance so she was not in default of the implied obligation to take reasonable steps to secure such finance. She had paid the deposit required by the purchase contract. True it is that she had herself denied the existence of a contract because she asserted that it was void (as opposed to voidable), but the time for her performance of the contract by paying the price for the motor vehicle had not arrived. At the time of Brisbane BMW’s termination of the contract she was not in default of any obligation under it – it was terminated for an anticipated default. There is a difference: Foran v Wright (1989) 168 CLR 385.
In my view, Brisbane BMW is not entitled to exercise the remedies set out in cl.7 of the purchase contract. It is unnecessary to determine if that clause is an unfair term for the purposes of s.23(1) of the Australian Consumer Law, but I doubt that it is.
Brisbane BMW is, however, entitled to damages. The amount claimed was supported by evidence from Mr Marvin Burke, New Car Sales Manager for Brisbane BMW. Mr Burke’s evidence was that Brisbane BMW’s loss was $14,204 calculated as follows:
List price of vehicle including genuine BMW options          $109,786
(excluding GST)
BMW margin applied to list price (6.75%)   $7,411
BMW bonuses applied to list price (total of 7.5%)                   $8,234
BMW Retail Support as at date of contract (6 June 2015)        $2,000
Dealer delivery charges, less cost of delivery   $4,364
(Less) discount granted on contract (excluding GST)             - $7,805
Total profit  $14,204
Mr Burke’s evidence was not seriously challenged. There is no reason not to accept his evidence and I do so.
Brisbane BMW is not entitled to forfeit Dr Griffiths’ deposit. The only basis for doing so identified in argument was cl.7 of the purchase contract. For the reasons I have given above, that clause was not engaged. Accordingly, the damages assessed on the cross-claim must be reduced by $2,000.00 already paid by Dr Griffiths to Brisbane BMW.

Conclusion

For the reasons I have given above, Dr Griffiths’ claim must fail. Brisbane BMW’s cross-claim must succeed. There will be judgment for Brisbane BMW on both the claim and the cross-claim, together with interest on the amount of the cross-claim and costs.
I will hear the parties on the questions of the calculation of interest and costs in accordance with the directions set out at the commencement hereof.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 6 September, 2016.

Date: 6 September 2016