Hegarty v Pryor

[2022] NSWCATCD 206

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Hegarty v Pryor [2022] NSWCATCD 206

Hearing dates:

29 September 2022

Date of orders:

14 December 2022

Decision date:

14 December 2022

Jurisdiction:

Consumer and Commercial Division

Before:

K Ross, Senior Member

Decision:

1. Brett Pryor and Leith Pryor are, on or before 11 January 2023, at a time to be agreed between the parties, to collect the horse Chesapeake Hudson from the applicant.

2. Brett Pryor and Leith Pryor are, on or before 11 January 2023, to pay to the applicant the sum of $18313.00.

Catchwords:

CONSUMER CLAIM: Where applicant alleges that respondents made a misleading representation, Where the applicant alleges horse has ridden vices not disclosed to her, and is not fit for the purpose disclosed

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Fair Trading Act 1989

The Australian Consumer Law

Texts Cited:

The Law of Misleading or Deceptive Conduct 5ed / Colin Lockhart (2019), Chatswood, N.S.W. LexisNexis Butterworths

Category:

Principal judgment

Parties:

Felicity Hegarty (Applicant)

Brett Pryor and Leith Pryor (Respondents)

Representation:

Parties in person

File Number(s):

GEN 22/30650

Publication restriction:

Nil

REASONS FOR DECISION

Application

1. On 26 January 2022 the applicant Ms Hegarty purchased a 5-year-old gelding Chesapeake Hudson (“Hudson”) from the respondents Mr and Mrs Pryor for the sum of $15000. The applicant alleges that Hudson is not the “kind, easy-going” gelding which he was represented to be, because he displays ridden vices (broncing, and a tendency to want to buck). She seeks to return him and obtain a refund of the purchase price together with compensation.

2. The respondents oppose the orders sought. They say that Hudson did not display the behaviours now complained of during the 5 years he was with them. They stand by the representations which they made to the applicant at the time of the sale.

The claim and decision

3. Neither party was legally represented at the hearing. The applicant does not identify the cause of action on which she relies, except to say that Hudson was not represented correctly. She states that she was not advised of the horse “propping and pulling his head down”, and if she had been she would not have purchased it.

4. I have considered:

1. whether the respondents have engaged in misleading or deceptive conduct

2. whether the representations made about Hudson were false and misleading

3. whether there has been a breach of the consumer guarantees in the ACL that the goods be of acceptable quality or fit for any disclosed purpose.

5. For the reasons set out below I find that the representations made about Hudson were false, and Hudson was not fit for the purpose disclosed to the respondents. By selling the horse to the applicants the respondents have engaged in misleading and deceptive conduct. The applicant is entitled to return Hudson to the respondents for a full refund. She is also entitled to the compensation which she seeks.

Jurisdiction and the Law

Jurisdiction

6. I am satisfied that this claim is a consumer claim as defined in the Fair Trading Act 1989 (the FTA). The respondents are involved in the business of selling horses, and the applicant is a consumer to whom the goods (the horse) were supplied, in NSW. The claim is for an amount within the Tribunal’s jurisdictional limit. The application was lodged within 3 years of the time of the supply.

7. The Australian Consumer Law (ACL) applies in NSW by virtue of the operation of the FTA. The applicant is a consumer for the purpose of the ACL.

8. The Tribunal has jurisdiction to hear and determine the dispute.

The Law

Misleading and deceptive conduct; false and misleading representations

9. Section 18 of the ACL prohibits conduct which is misleading or deceptive or is likely to mislead or deceive. Section 29 of the ACL prohibits the making of false or misleading representations, including under s29 (1)(a) false or misleading representations that goods are of a particular standard or quality, or have had a particular history or particular previous use.

10. It is not necessary to prove an intention to mislead to establish a contravention of s 18 (see The Law of Misleading or Deceptive Conduct 5ed / Colin Lockhart (2019), Chatswood, N.S.W. LexisNexis Butterworths at para 3.10 p 95), and [Ibid at para 3.13 p 97:

“Neither knowledge of the misleading character of the conduct nor a lack of good faith are necessary for the prohibition to be breached”.

11. That is to say, if Hudson is not a “kind, easy going but athletic gelding, a pleasure to ride”, with “no nasties”, then the advertisement will have been misleading. Whilst it might be relevant to consider the issue, it does not matter whether Mr and Mrs Pryor believed Hudson to be those things at the time they made the representations.

12. To succeed under s 29 ACL, Ms Hegarty needs to prove that the representations were false and that she relied upon them when she purchased Hudson.

The consumer guarantees.

13. Ms Hegarty also has the benefit of the consumer guarantees in the ACL, including those set out in s55. This is a guarantee that Hudson would be reasonably fit for any purpose disclosed to Mr and Mrs Pryor at the time of the sale. To prove a breach of this warranty, Ms Hegarty needs to prove first that she disclosed the purpose or purposes for which Hudson was being acquired, and second that Hudson does not meet that requirement.

The issues

14. The following issues arise for determination:

1. In addition to the representations in the advertisement, what other representations (if any) were made by Mr or Mrs Pryor about Hudson?

2. Did Ms Hegarty rely upon those representations when purchasing Hudson?

3. Does Hudson meet the description(s) of him given to the purchaser?

4. Did Ms Hegarty advise Mr and Mrs Pryor of the purpose or purposes for which she required the horse?

5. If so, is Hudson fit for the disclosed purpose?

Findings of fact

15. I have had regard to the evidence supplied by both parties, including the evidence supplied on USB. The following matters are not disputed:

1. In November 2020 the applicant was severely injured in a horse-riding accident. She suffered major trauma and underwent multiple surgeries on her left leg.

2. The respondents placed the following advertisement on Facebook:

“Back in work & on the market again after a setback with a foot abscess. Video taken today of our (quite confident) 7 year old daughters first ride.

5yo chestnut ASH gelding

Approx 15.2 – 15.3 hh not officially measured.

Hudson is a kind, Easygoing but athletic gelding, a pleasure to ride. Both Dam & Sire are proven performers on the Polocrosse field.

Foreward moving, soft & responsive, has been stick & balled & dabbled in some sporting, jumping & other pony club disciplines while riding at home with the kids, he is quick & willing learner who’s outings have been limited due to Covid, ready for a competent & experienced rider to take him on.

Genuine sale, no nasties

$15000.

[Contact details]”

3. In response to the advertisement and on behalf of the applicant, the applicant’s mother contacted the respondents. The applicant and her mother inspected Hudson on 24 January 2022. The applicant rode him and described him in her statement as relaxed and calm and a pleasure to ride.

4. The applicant agreed to purchase Hudson for the sum of $15000 and collected him from the respondents on the following day.

5. After the sale various text messages passed between Ms Hegarty and Mr Pryor including the following exchanges:

25 January 2022:

Ms Hegarty: Just wondering which bit you used?

Mr Pryor:…Just a normal snaffle. I think you could put whatever in his mouth. He wouldn’t get offended.”

Ms H: “…Rode him this evening, he was a good boy. Was a bit nervous when we first got home but settled well, the chickens and ducks did not help at all. Quite happy now.”

27 Jan 2022

Ms H: Hudson has settled well. I put work boots on him this evening and then when he didn’t follow wondered what on earth was wrong. Then he high stepped all the way out to the arena after he realised he could still move.”

Ms H: “I put the neck strap on only for myself to balance with at the moment. He is so forgiving when I loose balance. Lovely little horse.”

6. Ms Hegarty sent the following messages to Mrs Pryor:

28 Jan 2022

“He has settled really well. He was sad the first night but I think he and the other gelding are mates now, he seems happy, comes up for feed and when I take a walk down to the paddocks. Loves the attention.”

3 February (with a video):

“Starting to click. He is so sweet. Loves a good cuddle at the gate. He’s so nice to ride as well. So comfortable and polite.”

7. On 7 February Ms Hegarty asked Mr Pryor whether he could take another of her horses for some ridden education.

8. On 14 February 2022 Ms Hegarty sent this message:

“Sorry to have to do this but do you have the number for the people from WA?

Hudson has started trying to buck. Nothing’s changed so don’t know what is the go but I can’t deal with that at this point in time.

Mum rode him and thinks he’s great. He was good for about 20 minutes and then gave him a walk, then tried it about 3 times as well.

And later

“ …A few days after he arrived he had a little bit of a hump so he was taken off pellets and just back on hay. Has been on just hay since. Last week he started trying to snatch downwards after I was able to keep him going forward. Then this morning mum gave him a quick lunge, no issues, I rode him for about 10 minutes with no issue. Then asked for canter and his head went between knees and started his back up. Tried again same thing and then ended up being when I asked for a trot. Got off, Mum lunged him with no issues so I hopped back on. He didn’t want to trot and would try it as soon as my leg went on. Then Mum hoped (sic) on and he was fine for a good 20 minutes. Both ways trot and cantered no issues and then gave him a walk, asked him to canter and he started again.

Changed saddles, checked his back and girth etc and couldn’t see anything untoward.

So I’m not really sure. …

Mr P : Its odd that he would want to buck after being ridden for 20 minutes. He honestly hasn’t bucked ever in his life.”

Ms H: Yeah he seemed a bit cold backed to begin with so we’ve just lunged quickly before I hop on. As I said he was great. Really enjoyed riding him but after this morning I just can’t mentally deal with it at this point in time unfortunately.”

9. Ms Hegarty has not ridden Hudson since that date.

10. Ms Hegarty contacted the other interested party in WA but the sale did not proceed.

11. Ms Hegarty sent the horse to New England Equine. On 31 March 2022 they reported:

“On Saturday 19^th March 2022, “Chesapeake Hudson” 5yo 1 5.3 hh, chestnut gelding arrived at our professional Equine training establishment to be sold on behalf of our client Felicity Hegarty.

In the 12 days with us we have found him easy to handle on the ground, and generally a nice horse to have around. Under saddle we have found him to be cold backed at the start of the majority of his rides even after lunging. He then goes on to work kindly under saddle.

For us to be able to safely and correctly market Hudson to find him a new home; he would have(sic) undertake a thorough investigation programme to find out what the triggers are and the cause of the cold blackness.

In a less experienced home in our professional opinion this issue could become a major problem and a dangerous situation.”

12. In an undated report New England Equine state:

““Chesapeake Hudson” 5yo 15.3 hh, chestnut gelding. During his time with us from the 19th of March 2022 until 7th of April 2022 he had 14 days in work.

As stated on multiple occasions to Hudson’s owner we require at least 14 days in work before setting a plan and being able to correctly market any horse for sale. And during his two weeks in work he was not a horse that we would market for sale without a further investigation.

Hudson's issues were complex and complicated and required more investigation and a rehabilitation programme to determine where his issues were coming from, along with a full history report which appeared to be missing details at times.

On the 6th of April 2022, Hudson kicked Mathew whom (sic) is a very experienced horseman and a horse breaker. Resulting in multiple fractures in his knee. This was a unprovoked incident with multiple witnesses”.

13. By email on 12 April 2022 the applicant requested a refund of the purchase price and to return the horse.

14. By email dated 18 April 2022 the respondents stated that they were not prepared to refund the purchase price as Hudson had never exhibited the behaviour complained of during their ownership and appeared to have developed the behavioural issue under the applicant’s management.

Disputed facts

16. The parties have different versions of some of the facts:

1. The applicant states that she asked Mr Pryor:

“Has he ever displayed any ridden vices or behavioural issues? I am looking for a horse who has no vices and is consistent under saddle. Some of my competition horses, although nothing is done maliciously, they can act exuberantly at times while being ridden and given my trauma I am looking for a horse who is consistent under saddle and who has a quiet and predictable temperament.”

She says Mr Pryor replied:

“He is consistent and has shown no ridden vices, he has never misbehaved under saddle, I have seen him windsuck on occasion but it is only when he is tied up to the rails. We love him but unfortunately need money for a new septic tank.”

2. Mr Pryor denies saying that Hudson had “never misbehaved” and says he said that the horse

“had never done anything nasty with us, but I can’t guarantee he won’t, that would be like saying he’s bombproof”

3. Mrs Pryor alleges that the following conversation took place before the applicant rode Hudson on 24 January 2022:

“Ms H: I have been riding one of my own mares, but she started threatening to rear on me and I don’t want to go back down that path any time soon.”

Mrs P: “the worst Hudson has ever done is to prop and pull his head down, if you’re confident enough to pull his head up and ride him forward he’s never gone on with anything more seriously.”

Ms H: I don’t care if he bucks so long as he doesn’t rear.”

4. The applicant denies that this conversation took place.

5. The respondents say that Hudson had never displayed broncing behaviour with them. The applicant says that a photo she has seen would suggest that he did. The respondent dispute that the photo shows what the applicant says it shows.

17. In relation to the conversation at (1) and (2) above, I note that Mr Pryor does not dispute the first part of the conversation. I accept the applicant’s version of what Mr Pryor said, because it is consistent with his evidence that Hudson had not displayed ridden vices.

18. I also accept the applicant’s evidence that neither Mr nor Mrs Pryor advised her that Hudson had “propped and pulled his head down”. I find it unlikely that Ms Hegarty would have indicated that she would not care if Hudson bucked, bearing in mind her fear of having another accident.

19. On the balance of probabilities, I find that Hudson had propped and pulled his head down during the time that the respondents had owned him. Indeed, Mrs Pryor admits as much in her evidence about the conversation at (3) above. However I accept that they did not regard this as an issue, because they allowed their own young daughter to ride him.

The expert evidence

20. Both parties relied upon expert evidence. Both experts rode Hudson and found that he had a tendency to bronc.

The applicant’s expert evidence

21. The applicant’s expert Shane Rose said that on the day he assessed Hudson:

“he displayed a difficult temperament under saddle” and

“he made several attempts to buck me off, in my opinion these were not playful bucks they were a deliberate attempt to remove the rider.”

“this is a learnt trait, it is something I am confident the horse has done in the past”

“A horse with such a trait is not suitable for a rider who is recovering from a traumatic horse-riding accident”.

“I believe that the horse should not have been described as “kind” “easy going” or with “no nasties”

“I believe this horse would have a history of bucking and this should have been disclosed to the potential purchaser”.

The respondents’ expert evidence

22. The respondents’ expert Gerard O’Brien sets out in his report the process by which he had assessed Hudson. He notes that Hudson tightened his back at the girth and showed signs of bucking. He states that when he disciplined the horse, he responded quickly. This happened on a few occasions.

23. Mr O’Brien concluded:

“My assessment of Hudson is inconclusive at this stage. Hudson presented bad habits, however these habits are not imprinted within him at this stage and are not consistent with a horse of a true bad disposition. A horse of strong bad habits generally won’t submit to discipline and travel free of resistance. He would try harder to dislodge or make the rider feel they need to dismount”.

24. Mr O’Brien then went on to attempt to reconcile the instructions which he had received from the respondents (that Hudson had not displayed this kind of behaviour whilst with them) with what he had observed. He concluded that Ms Hegarty had rewarded Hudson when she dismounted after he misbehaved. That reward had been reinforced when he had been rested after his poor behaviour at New England Equine and again when he was ridden by the applicant’s expert. He concluded:

“After reviewing the information and footage supplied to me in chronological order, it has become apparent that Hudson's adverse behaviours have increased over this time”.

“The videos and letters provide proof of how a horse learns from pressure and release in the form of a stop/ break or drop of pressure levels and how this can then affect the horse’s ongoing future performances. We do not need to be bucked off to create this habit we only have to give the required breaks at the wrong time for them to take it on board.”

“This is a classic example of learned behaviour where someone buys a horse with the best intentions and the horse picks up on the driver's weaknesses and exploits them”.

Reconciling the expert evidence

25. Both experts found that Hudson displayed the behaviour which Ms Hegarty complained of. That is, Hudson engaged in broncing behaviour and attempted to buck off the rider. Both experts agreed that the behaviour is a learned behaviour, and both experts agreed that some horses are more inclined to exhibit the behaviour than others.

26. Both experts stated that it was unlikely that the respondents would have allowed their young daughter to ride Hudson if they held concerns about his behaviour.

27. The respondent’s expert Mr O’Brien assumed as a fact that Hudson had not displayed the behaviour prior to Ms Hegarty’s ownership. He went on to argue that in his opinion, the horse could have learned the behaviour and had it reinforced by breaks in work during the period of Mr Hegarty’s ownership. He stated that in his view the horse did not have a “true bad disposition”, but rather had taken advantage of Ms Hegarty’s insecurities following her accident, and then had the bad behaviour reinforced by breaks in his training.

28. Mr O’Brien also stated that a horse will take 1 day to learn a behaviour and then 2 days to unlearn it.

29. The difficulty I have with Mr O’Brien’s evidence is that it does not seem to explain Hudson’s behaviour whilst at New England Equine. Hudson was found to be cold backed at the start of the majority of his rides. They were unable to identify the cause. There is no suggestion that whilst there, Hudson was in any way rewarded for this behaviour. The facility employs experienced horse trainers. Despite this, his behaviour did not improve during his stay and in fact resulted in injury to one of the trainers. If I was to accept Mr O’Brien’s evidence it would mean that the behaviour had been learned as a consequence of the few times when he had been “rewarded” by Ms Hegarty, and had become so entrenched that 13 days of being ridden by experienced trainers did not result in any improvement.

25. The applicant’s expert made no assumption about whether the horse had exhibited the behaviour prior to Mr Hegarty’s ownership but he stated that in his view the behaviour could not have been learned only during the period of Ms Hegarty’s ownership. He stated that the behaviour made Hudson unsuitable for a person recovering from a serious accident. I prefer this evidence because it is more plausible and is not based on an assumption as is Mr O’Brien’s evidence.

26. On the basis of the expert evidence I find that:

1. Hudson is a horse with a tendency to buck.

2. Hudson’s behaviour is unpredictable.

3. Hudson’s bad behaviour has become more entrenched during the period of the applicant’s ownership

4. I am not satisfied that Hudson’s behaviour has been solely caused by any action or inaction by Ms Hegarty.

5. Hudson’s behaviour makes him unsuitable for a rider recovering from a serious accident.

The representations

32. There is no dispute that the respondents made the representations in the advertisement. Hudson was represented to be a kind, easygoing but athletic gelding, and a pleasure to ride. He was represented to be forward moving, soft and responsive, and a quick and willing learner. However, the advertisement also noted that he had had limited outings due to Covid. He was said to be ready for a competent & experienced rider to take him on. The ad finished:

Genuine sale, no nasties

33. Mr Pryor also stated to Ms Hegarty that Hudson was consistent and had shown no ridden vices.

34. I am satisfied that Ms Hegarty relied upon these representations when purchasing Hudson. I am also satisfied that the fact that Hudson was said to be ready for a competent & experienced rider to take him on qualified the representation to some extent. However, the representation that Hudson was consistent was false and misleading because Hudson’s behaviour is not consistent. The statement that he has no ridden vices is false and misleading because Hudson exhibits broncing behaviour. It does not matter whether the respondents knew that the statements to be false at the time they were made.

Did Ms Hegarty advise Mr and Mrs Pryor of the purpose or purposes for which she required the horse?

35. The respondents do not dispute that Ms Hegarty (or her mother) told them that she had had an accident. They say that they did not know that she had balance issues until later, and I accept that evidence. I also accept that Ms Hegarty held herself out to be competent and experienced.

36. I note that Mr Pryor did not dispute that part of the conversation at paragraph 18 above in which Ms Hegarty says that she told him that “given my trauma I am looking for a horse who is consistent under saddle and who has a quiet and predictable temperament”.

37. It is not disputed that Ms Hegarty had also advised the respondents that she intended to use the horse in competitions.

38. On this basis I am satisfied that Ms Hegarty had advised the respondents of the purposes for which she required the horse.

If so, is Hudson fit for the disclosed purpose?

39. I am not satisfied that Hudson’s behaviour makes him suitable for a rider recovering from a serious horse-riding accident. As this was a purpose disclosed to the respondents, there has been a breach of s 55 of the ACL.

What orders should the Tribunal make?

40. The applicant seeks to return Hudson to the respondents. She seeks a refund of the purchase price and compensation for the costs she has incurred as follows:

1. Horse feed $1500

2. Transport to New England Equine $525

3. Trims $198

4. Stabling and training New England Equine $920

5. Shoe set $170

41. I am satisfied that the rejection period had not ended when the applicant rejected Hudson. She is entitled to return him to the respondents and is entitled to a refund of the purchase price.

42. I am also satisfied that the claim for compensation for feed, trims and shoe set is reasonable and I allow those amounts.

43. I also allow the costs related to the transport and stabling at New England Equine. Those costs were incurred by the applicant in an attempt to sell Hudson, which would have mitigated her loss.

44. The applicant has foreshadowed a claim for the cost of her expert report. Section 60 of the Civil and Administrative Tribunal Act 2013 provides that parties pay their own costs unless there are special circumstances. I am not satisfied that there are and this foreshadowed claim is disallowed.

Orders

45. Brett Pryor and Leith Pryor are, on or before 11 January 2023, at a time to be agreed between the parties, to collect the horse Chesapeake Hudson from the applicant.

46. Brett Pryor and Leith Pryor are, on or before 11 January 2023, to pay to the applicant the sum of $18313.00.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

28 August 2023 - Formatting amendments.

Decision last updated: 28 August 2023