Irwin Logistics Pty Ltd v Ultimate Trailers Australia
[2023] VCC 2349
•18 December 2023
5
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-21-01105
| Irwin Logistics Pty Ltd (ACN 160 112 416) | Plaintiff |
| V | |
| Ultimate Trailers Australia | Defendant |
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JUDGE: | Judge A Ryan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 June, 3 July 2023 | |
DATE OF JUDGMENT: | 18 December 2023 | |
CASE MAY BE CITED AS: | Irwin Logistics Pty Ltd v Ultimate Trailers Australia | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2349 | |
REASONS FOR JUDGMENT
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Subject:CONTRACT, CONSUMER LAW
Catchwords: Plaintiff refused to take delivery of a trailer from the defendant due to alleged defects – whether trailer unfit for purpose and/or did not meet its description thereby entitling the plaintiff to reject it - alternatively, did the defendant agree to reimburse the purchase price - whether defendant engaged in misleading or deceptive conduct by selling the trailer under its own name - defendant’s counterclaim for storage costs and orders for disposal of the trailer.
Legislation Cited: Competition and Consumer Act 2010 Schedule 2
Cases Cited:Commonwealth Bank of Australia v Shahen Serobian [2009] NSWSC 302; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; Fleetman Pty Ltd v Carins Pty Ltd [2005] FCAFC 80; Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd [1999] QCA 472; Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; Nagy v Masters Dairy Ltd (1996) 150 ALR 273; Thorby v Goldberg (1964) 112 CLR 597; Walker v Sell (2016) 245 FCR 308; Watson v Foxman (1995) 49 NSWLR 315;
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Leung | Fletcher Clarendon |
| For the Defendant | Mr G Lubofsky | Cobalt Law |
HER HONOUR:
1The plaintiff, Irwin Logistics Pty Ltd, is engaged in the transport of heavy equipment and goods by trucks across Australia and is based in Queensland. Mr John Irwin is the sole owner and director of the plaintiff.
2The defendant trades as an entity known as Ultimate Trailers Australia (“UTA”).
3The plaintiff purchased a 2019 model UTA Supa-Tilt Drop Deck Tri Axle semi-trailer (“the trailer”) from the defendant for the sum of $119,900 (including GST) on 7 November 2019.
4On 12 November 2019, Mr Irwin went to collect the trailer from the defendant’s premises. Following his arrival, Mr Irwin inspected the trailer and identified a number of alleged defects which he raised with the defendant’s representatives on site. As a result of those defects, Mr Irwin refused to take delivery of the trailer and asked for a refund. Mr Irwin claims that Mr John Adams, the managing director of the defendant, who was present at the time, orally agreed to reimburse the full purchase price to the plaintiff (“the reimbursement agreement”).
5The defendant disputes the plaintiff was lawfully entitled to reject the trailer. The alleged defects raised by the plaintiff did not render the trailer unfit for its intended purpose. Consequently, the plaintiff is not entitled to a refund. The defendant also denies Mr Adams orally agreed to reimburse the full purchase price to the plaintiff, in circumstances where the trailer was already registered in the plaintiff’s name and subject to finance.
6By this proceeding, the plaintiff seeks specific performance under the reimbursement agreement and/or damages. The damages claimed total $132,295,67, being the purchase price, together with on road and financing costs. As an alternative claim, the plaintiff alleges the defendant engaged in misleading and deceptive conduct under s18 of the Australian Consumer Law (“ACL”) by failing to disclose the trailer was manufactured by another company called Stonestar and misrepresenting it was a UTA trailer.
7By counterclaim, the defendant seeks damages for breach of an implied term of the agreement that the plaintiff would collect the trailer within a reasonable time of purchase. The trailer has remained at the defendant’s premises since November 2019. The amount sought by the defendant is $11,727 representing storage costs. The defendant also seeks orders that it be permitted to dispose of the trailer.
Background
8The defendant advertised the trailer for sale in October 2019 on
9On 22 October 2019, Mr Michael Maher, marketing manager at the defendant, received a notification from that Mr Irwin had made an online inquiry in respect of the 2019 model trailer.
10Mr Maher had an initial phone call with Mr Irwin regarding his interest in the trailer. Mr Maher then sent an email to Mr Irwin on 22 October 2019 attaching a quotation, a UTA brochure and four photographs of the trailer. The quotation set out detailed specifications with a proposed sale price of $117,000 (including GST).
11Mr Irwin had several phone conversations with Mr Maher following receipt of UTA’s email dated 22 October 2019. Mr Irwin had noticed from a photo (CB94) that the trailer appeared to have a shallow coaming rail. Mr Irwin regarded a raised coaming rail as being a necessary feature to stop containers from falling off when being loaded on to a trailer. Mr Irwin said he explained the significance of coaming rails to Mr Maher who assured him it had a coaming rail. Later in his evidence, Mr Irwin said that he had asked if there was coaming lip to which Mr Maher said, “look at your invoice, it’s there.” Mr Maher could not recall these conversations but said if coaming rails were discussed, he would have informed Mr Irwin that the trailer was flat sided.
12As for the ABS brakes, Mr Irwin owned a European Scania truck which would require a 24-volt ABS braking system on the trailer to be compatible. Mr Irwin said he told Mr Maher that he needed a 24-volt ABS braking system and Mr Maher said this would be rectified or fitted before pick up. Mr Maher had no recollection of the ABS voltage being discussed.
13Mr Irwin told Mr Maher that UTA needed to disconnect the hydraulics because UTA’s hydraulics would not suit his set up. Mr Irwin said Mr Maher was open to this but needed approval from Mr Adams.
14On 28 October 2019, the plaintiff agreed to purchase the trailer and paid a $1,000 deposit. The same day, following phone discussions regarding hydraulic fittings between Mr Irwin and Mr Maher, Mr Irwin sent a diagram to Mr Maher in a text message relating to hydraulic fittings and a photo of hydraulic outlets. Mr Maher replied that day that he would get back to Mr Irwin with an answer.
15UTA regularly used a company called GetRegistered for registration for interstate customers. Mr Irwin asked Mr Maher for the registration of the trailer to be pre-organised by UTA, as he had a pending job collecting a bus from Adelaide and taking it back to Queensland.
16On 29 October 2019, Mr Maher sent Mr Irwin two invoices for the trailer. The first was substantially the same as the earlier quotation. The second invoice No. 1398 included a further $2,000 to cover registration and on road costs of the trailer in the plaintiff’s name in Queensland (“the invoice”). The invoice sets out various specifications, including that the length of the trailer was 45ft and that it had 8mm coaming.
17Mr Irwin said that the defendant offered to let him inspect the trailer before purchase but he was told there was no ability to test the trailer because it did not have hydraulics. Mr Irwin did not see a point in doing so as he would be literally coming down and looking at the paint work and kicking the tyres, which he was not comfortable with, so he chose not to inspect the trailer. Mr Maher did not recall telling Mr Irwin that there was no capability of testing the hydraulics on site. Mr Adams recalled Mr Irwin had told Mr Maher his father or father-in-law lived in Mount Martha, some 15 minutes from UTA’s factory and that he was coming to inspect the trailer but never did so. Mr Maher said Mr Irwin was offered many times to come and inspect the trailer. With the benefit of hindsight, it is regrettable that Mr Irwin did not avail himself of the opportunity offered for inspection prior to purchase.
18Mr Maher spent some time and effort trying to find a hydraulics company near Mr Irwin’s home in Queensland to make the hydraulic modifications. On 29 October 2019, Mr Irwin sent Mr Maher a text message with contact details for ‘Molendinar Hydraulics.’ He noted to “speak with Rodger he’s expecting your call.” Mr Irwin had previously worked with Molendinar Hydraulics. He sent this text message as Mr Maher was going to follow up with the hydraulics company.
19On 31 October 2019, Mr Irwin sent Mr Maher another text message asking for an update on the trailer. Mr Maher said he was currently working on it.
20The plaintiff obtained finance from the ANZ bank in order to purchase the trailer on 31 October 2019, which was organised by MacLean Financial.
21On 31 October 2019, Mobile Hose Fixers & Hydraulics emailed a quote to Mr Maher and Mr Irwin for the modification of hydraulics on the trailer. The quote was for $3,817.73. Mr Irwin said this quote was for the changes he was discussing with Mr Maher.
22On 1 November 2019, Mr Maher emailed Mr Irwin confirming the defendant would contribute to the cost of the hydraulic modification on the trailer upon full payment of the balance owing on the trailer. The email also detailed an agreement between the parties that upon full settlement of the balance owing on the trailer, UTA would retain the plaintiff’s deposit and pay this towards the hydraulic modification. UTA would pay the residual owing to Mobile Hose Fixers & Hydraulics. The email stated that UTA takes no responsibility or warranty for the modification. Mr Irwin said that Mr Maher told him he had spoken with Mr Adams, who was happy to pay for the modifications under the proviso that UTA was paid upfront in full for the trailer.
23On 7 November 2019, ANZ paid the sum of $119,900, to the defendant on behalf of the plaintiff in payment of the invoice.
24On 8 November 2019, Mr Maher emailed Mr Irwin a form for ‘Get Registered Heavy Vehicle Registration Service’ requesting that he complete it. The plaintiff signed the form the same day. The trailer was registered by UTA in in the name of ‘Irwin Logistics’ in Queensland on 8 November 2019. UTA paid the costs of registration in the sum of $1,738.45. ANZ bank lodged a PPSR registration over the trailer on the same day.
25In text messages exchanged on Friday 8 November 2019, Mr Irwin told Mr Maher he needed to pick up the trailer by Monday morning at the latest as he was “...loading in Adelaide to Brissy that’s why the urgency.” Mr Irwin told Mr Maher he had a job collecting a bus from Adelaide within two days of picking up the trailer.
26On 11 November 2019, Mr Adams sent a text message attaching two photos of hydraulic outlets to Mr Irwin. Mr Irwin responded asking him to fit a “3/4 male fitting to the flow and 1 inch male to return.” Mr Adams suggested that Mr Irwin pick up fittings on his way to collect the trailer. Mr Adams also confirmed the trailer had been tested at the factory and was ready to go. In response to Mr Irwin’s request, Mr Adams attached two photos of the trailer to his text sent on 11 November 2019, which was now painted in blue.
12 November 2019 – attendance at the defendant’s premises
27On 12 November 2019 in the afternoon,[1] Mr Irwin and his driver, Mr Gabriel De Sousa, attended the defendant’s premises at 189 Old Cape Shank Road, Boneo to collect the trailer. They arrived in the plaintiff’s Scania prime mover.
[1] With the exception of Mr De Sousa, the witnesses were in agreement that Mr Irwin arrived at the defendant’s premises in the afternoon on 12 November 2019.
28Mr Irwin could not recall who was driving the trailer but recalls “doing a U-turn in front of the trailer and backing up to it.” Mr Irwin said the first thing he noticed was a 12-volt sticker on the ABS plug. Mr Irwin immediately mentioned the ABS voltage to Mr Maher who confirmed it was an easy fix.
29Mr Irwin said he went to wind the landing legs up but he did not see any JOST logo which had been on the invoice. Mr Irwin had great difficulty trying to engage the gearing in the legs to wind them up. Mr Irwin also noticed that the side of the tray was sticking out on one side. He claims that when he mentioned this to Mr Maher, Mr Maher responded by saying “what do you expect, it’s made in China.” Mr De Sousa confirmed that Mr Maher made a comment along these lines. Mr Maher denied making any such comment.
30Mr Irwin also commented on the position of the rear light bar which was low to the ground. Mr Maher told him that other customers had modified this and Mr Irwin said he was fine with that. Mr Maher had no recollection of telling Mr Irwin this and could not recall other customers ever discussing the light bar.
31Mr Irwin next recalled noticing the lack of markings on the levers. He said that Mr Maher shrugged this off, stating that the remote had markings. Mr Maher did not recall this. Mr Adams said no complaints about the levers or lack of explanation for the remote-control buttons were made to him.
32Mr Irwin said he asked Mr Maher where the coaming rail was. Mr Maher pointed to the actual side panel, indicating to Mr Irwin that he did not know what a coaming rail was. Mr Maher had no recollection of saying this. Mr Adams confirmed that Mr Irwin asked once about why the trailer did not have coaming rails.
33Mr Irwin recalled noticing that the winching cables could not be stowed away. Mr De Sousa also recalled this being an issue. Mr Irwin said that Mr Maher’s answer was to try to force one of the hooks into the recess to make it disappear under the trailer. After a few attempts, according to Mr Irwin, Mr Maher realised he was fighting a losing battle and mentioned getting a grinder to cut out a recess.
34Mr Irwin stated that the next thing he did was climb up on the truck to change the fittings over. At this point he noticed that the instructions on the remote for the trailer were written in Chinese.
35Mr Adams gave evidence that Mr Irwin measured the trailer and asked, “isn’t this a 46-foot trailer?” to which Mr Adams informed him that they only make 45-foot trailers. He claims Mr Irwin then said the trailer was not going to suit or be right for me. Mr Irwin agreed that he measured the trailer using a tool measuring tape. He denies complaining that the trailer was not long enough to transport the buses from Adelaide and said they run buses on 45-foot trailers quite comfortably. He said there are two types of these trailers being either 45 or 48 feet. Mr Irwin denied asking for a refund because the trailer was too short for loading the bus he was going to carry. The plaintiff makes no complaint about the length of the trailer in this proceeding nor does the defendant plead any reliance upon this evidence in its Defence. In my view, this inconsistency is just another example of how recollections can differ with the passage of time. Nothing turns on this disputed evidence as it does not bear on the fundamental issue of whether the plaintiff had a lawful basis for rejecting the trailer.
36Mr Irwin recalled other issues with the trailer, such as the two-pack paint on the floor of the tray being a risk as it would make the tray slippery when wet and the air tank was unsuitable. Mr Maher could not recall these being raised by Mr Irwin when he inspected the trailer.
37Mr Irwin said when they started running the trailer, they were trying to land the bottom tray onto the top tray, but it was bending at the chassis at the back and cavitating. At this point Mr Adams said “stop, stop you’ll break the trailer.” Mr Adams confirmed saying this. Mr Adams said everything was working except for landing the tilt tray on the top deck of the trailer. This was due to a larger plate being used and that the manufacturer had forgot to cut in a recess.
38Mr Irwin told Mr Adams that he had seen enough and when asked by Mr Adams what he wanted, Mr Irwin said “I’d like a full refund. Mr Adams then shook my hand, and we proceeded to leave.”
39Mr Irwin said Mr Maher verbally agreed but could not remember what he said. His evidence was as follows:
“When you say ‘he verbally agreed’ what did he say?---Um. I can’t remember. Um, he – I could see the upset in his face. He could see that the trailer was failing in front of him, and he didn’t have the answers. He told me that it would have to go back to the factory to get repaired. At this stage, I didn’t know where the factory was. But it had to go back to the factory, and it wouldn’t be ready for a couple of days.”[2]
[2] T100
40In cross-examination, Mr Irwin said Mr Adams shook his hand after he asked for a refund and said “Done. Please send your bankers’ details. Which I actioned.”
41Mr De Sousa said Mr Adams and Mr Irwin agreed on giving the money back, the two men shook hands and then he and Mr Irwin left. However, Mr De Sousa was unable to recall what was actually said.
42Mr Adams accepted Mr Irwin did ask for a refund. Mr Adams informed him that it would be extremely difficult due to the trailer already being registered in the plaintiff’s name and financed. Mr Adams thinks he might have suggested to Mr Irwin to take the trailer and try re-sell if it did not suit his purpose. Mr Adams maintained that he never agreed to a refund.
43Mr Adams recalled Mr Irwin was getting hostile and raising his voice and that he and Mr Maher left the situation so it would not escalate. Mr Maher gave similar evidence and said Mr Irwin was being abrasive.
44Mr Irwin confirms that Mr Adams said the trailer would need to go back to the factory for repairs but claims he said it would take a couple of days and a specific timeframe was not provided.
45In his evidence in chief, Mr Irwin said he was pretty desperate for the trailer, “so if I could’ve got those hydraulics working, I would have accepted delivery of that trailer.”[3]
[3] T104
46Although Mr Irwin noticed a number of matters that concerned him on 12 November 2019, for the purpose of this proceeding, the defects relied upon by the plaintiff are:
(a) the lack of an elevated or raised coaming rail;
(b)the absence of a space to store the winch hooks when a container was loaded on the trailer;
(c) the lack of 24 Volt ABS braking; and
(d) the agreed defect relating to the operation of the tilt tray.
Events post 12 November 2019 meeting
47Mr Irwin rang Brendan MacLean, director of MacLean Financial straight away to alert him that the sale was not going ahead, and a refund needed to be arranged.
48On 13 November 2019, Mr Irwin sent an email to Mr Maher regarding the plaintiff’s decision to not pursue the purchase of the trailer. In cross-examination, Mr Irwin said he sent this email as a record and back up of what was agreed on 12 November 2019 in person. The email said:
“Hi Michael,
As discussed on Tuesday, we have decided not to pursue the purchase of the SuperTilt Trailer due to the fact that a number of SuperTilt design features have not been adopted by this particular trailer.
Furthermore the lower tray was not able to perform its design feature by connecting to the top deck due to a design flaw in the rear of the trailer.
A number of issues were highlighted to Michael about the build quality and I was very upset to hear in response to a number of my concerns “what do you expect, it was built in China.”
We are exercising our rights to withdraw from this sale during the cooling off period. ……..”
Mr Irwin then went on to request that the full amount be paid into his bank account in the next 48 hours and gave details of his bank account.
49On 13 November 2019 at 2:46pm Mr Irwin sent a text message to Mr Maher asking to “please send through GMs number as it’s pretty straight forward I don’t see why or what you need to work through.”
50In examination in chief, Mr Irwin discussed a phone call that occurred between himself and Mr Maher on 14 November 2019. Mr Irwin said Mr Maher swore at him on the phone and told him he had signed for the trailer, it was registered in his name, and he needed to come and collect it. Mr Irwin said this resulted in him sending a text message to Mr Maher on 14 November 2019 asking him to not threaten him and as explained, confirming the plaintiff would not be collecting the trailer. Mr Maher replied stating the trailer was ready to be collected. Mr Maher denied threatening or swearing at Mr Irwin and recalls thinking the text messages from Mr Irwin were strange. He said that he explained to Mr Irwin that the trailer had been repaired and was ready to be collected.
51Mr Adams said that when Mr Irwin left his premises, he called Stonestar and spoke to an employee named Mohammed. Stonestar said to bring the trailer to their factory the next morning. Mr Adams also asked Stonestar about providing a refund and was told it would be impossible as it was not a cash transaction, the trailer was financed and registered. Mr Adams and Mr Maher both said one of the UTA employees took the trailer to Stonestar, waited there and it was returned to UTA by lunchtime on 13 November 2019.
52Upon arriving back in Queensland, Mr Irwin returned the registration plates and received a $1,738.45 refund.
53Mr MacLean gave evidence that after speaking with Mr Irwin and understanding that the sale was not going ahead, he made contact with the supplier, UTA. Mr MacLean did not remember Mr Irwin telling him that Mr Adams had agreed to give a refund. Mr MacLean did not recall whether Mr Irwin instructed him to call Mr Adams. Mr MacLean sent an email dated 14 November 2019 to Mr Adams, which was copied to Mr Maher and Mr Irwin. This email referred to an attempted phone call by Mr MacLean to Mr Adams to discuss the situation. It stated “Based on the customers complaint ANZ will be withdrawing the loan agreement & expect a full refund in order to complete this process. Please deposit the full amount $119,000 back into the below account.”
54Mr Adams recalled speaking to someone from ANZ, who might have been Mr MacLean, but said he did not agree to a refund. Instead, he said he would look into the costs and see what could be done as the trailer was registered and financed.
55Mr MacLean did not recall the specifics of the conversations that followed 14 November 2019 but sent an email on 14 November 2019 to Andrew Barton of ANZ stating that “UTA (supplier) is happy to refund the full amount to ANZ. Can you please provide a payout letter or some form of undertaking that ANZ will remove the security interest once funds are received?”
56Mr MacLean sent a text message later that day to Mr Irwin saying: “Spoke with UTA. Sounds like they are going to refund the bank in full.”
57On 14 November 2019, Mr Andrew Barton of ANZ Bank emailed Mr MacLean giving an undertaking by ANZ to remove the PPSR registration over the trailer once the settlement funds were returned. Mr MacLean forwarded the email to Mr Adams, and copied it to Mr Maher and Mr Irwin. Mr MacLean said in evidence that he sent the email to Mr Adams “as requested” because Mr Adams would have requested a guarantee from the bank. Mr Adams denied requesting this information and claims he asked to find out the costs involved to determine if a refund would be possible.
58On 14 November 2019, Mr Irwin sent Mr Adams a text message asking him to call him. He sent a follow up text message on 15 November 2019 noting that he believed Mr Adams had requested the bank details of Mr MacLean and asking how that has progressed.
59The plaintiff commenced this proceeding by writ dated 19 March 2021.
60Mr Irwin has been in contact with ANZ for the past six months. He said ANZ is aware of this court proceeding and have agreed to pause interest repayments on the funds advanced until further notice.
Witnesses
61Mr Irwin, Mr De Sousa and Mr MacLean were the lay witnesses called on behalf of the plaintiff.
62The plaintiff obtained an expert witness report from Mr Glen Crawford, a senior forensic engineer with Envista Forensics, filed on 21 September 2021. This report was tendered as part of the Court Book without objection. Mr Crawford was not called to give oral evidence.
63Mr Adams and Mr Maher were the lay witnesses called on behalf of the defendant.
64The events in question occurred nearly four years ago. It can be readily accepted that human memory is fallible, and the witnesses’ precise recollection of conversations held were affected by the passage of time. Despite this, I found all the witnesses to be credible and were doing their best to recount the events that took place.
Key issues
65The following key issues arise for determination on the plaintiff’s claim:
A. Right of rejection:
(i)did the agreement for the purchase of the trailer require the defendant to provide a trailer that had a 24-volt ABS braking system;
(ii)did the plaintiff have a right under the ACL to reject the trailer because it was manufactured by Stonestar and therefore departed from its description;
(iii)did the plaintiff have a right under the ACL to reject the trailer by reason of the trailer not being reasonably fit for its disclosed purpose, namely the transportation of shipping containers and heavy machinery on public roads by reason of (separately or cumulatively):
(a) the lack of raised coaming;
(b)the lack of a place to stow the winch hooks when a container was loaded on the trailer;
(c) the lack of 24-volt ABS braking;
(d) the accepted defect in relation to the operation of the tilt tray, being the inability of the tilt tray to land on the top deck.
B. Reimbursement Agreement:
(iv)whether the parties entered into the reimbursement agreement on 12 November 2019 for a refund of the purchase price paid for the trailer;
(v)if so, what are the plaintiff’s damages for breach of the reimbursement agreement?
C. Misleading or deceptive conduct claim:
(vi)did the plaintiff purchase the trailer in reliance on:
· a misrepresentation that the trailer was a UTA Supa Tilt Drop Deck; and/or
· misleading or deceptive conduct by silence that the defendant failed to disclose that it was a Stonestar trailer.
(ii) if so, is the plaintiff entitled to damages for misleading or deceptive conduct and/or a refund?
A. Right of rejection
66The plaintiff’s pleaded claim for rejection is based on common law rights and the ACL. During his oral final address, counsel for the plaintiff specifically abandoned any claim under the Goods Act and sought to rely solely on the ACL claim.[4]
[4] T307, L1-3
67The plaintiff relies on the consumer guarantees set out in sections 55 and 56 of the ACL which provide as follows:
Section 55 of the ACL –
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit
(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
Section 56 of the ACL –
(1) If:
(a) a person supplies, in trade or commerce, goods by description to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.
(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.
68If there is a breach of either of these consumer guarantees, Section 259 provides that if the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer can reject the goods.
69Section 260 provides that a major failure is:
(a) pursuant to subsection 1(b) where the goods depart in one or more significant respects from their description if they were supplied by description;
(b) pursuant to subsection 1(d) if the goods are unfit for a disclosed purpose that was made known to the supplier of goods and they cannot easily and within reasonably time be remedied to make them fit for such a purpose.
70Section 263(4) provides that if a consumer duly rejects goods, the supplier must, in accordance with the relevant election made by the consumer refund any money paid by the consumer for the goods and an amount that is equal to the value of any other consideration provided by the consumer for the goods. Subsection (6) provides that where property in the rejected goods has passed to the consumer before the rejection was notified, the property in those goods revests in the supplier upon the notification of the rejection.
71The plaintiff has admitted that there is no direct evidence before the court that Mr Irwin specifically told Mr Maher that the trailer was intended to be used to transport shipping containers. However, the test for conveying such a purpose (under Section 55 of the ACL) is also extended to where that purpose is implicitly conveyed by the purchaser to the supplier. Mr Maher did know that the plaintiff was going to use the trailer to transport items on public roads. The plaintiff submits that in that context, the court ought to find that the plaintiff implicitly disclosed that it would use the trailer for the purpose of transporting shipping containers on public roads.
72The plaintiff submits that the defendant was a vendor of a highly specialised piece of equipment. Further, the plaintiff was not able to inspect the trailer because he could not test the tilt tray mechanism. Based on this, Mr Irwin conveyed to the defendant the importance of the trailer being able to function for its intended purpose. The plaintiff relied upon the skill and judgment of the defendant in purchasing the goods.
73The plaintiff claims the defence available under section 55(3) of the ACL does not apply as although Mr Maher may not have been particularly experienced in the sale of such trailers, the defendant was experienced.[5]
[5] Section 55(3) ACL
(i) Right to reject based on ABS voltage forming part of the terms of the agreement
74The plaintiff pleads the inclusion of a 24-volt ABS braking system was a term of the agreement between the parties arising from discussions between Mr Maher and Mr Irwin.
75These conversations form part of the disputed discussions. While Mr Irwin gave evidence that he asked for a 24-volt ABS braking system in phone discussions with Mr Maher, Mr Maher did not recall any such discussion. Mr Maher maintained that he would recall such a discussion because it is a rare modification. Mr Adams said that Australian and American trucks run a 12-volt ABS braking system whereas most European trucks are 24-volt ABS braking system.
76The defendant argues the plaintiff has failed to discharge the onus of proving that there was an agreement between Mr Irwin and Mr Maher about the inclusion of 24-volt ABS brakes.
77According to the defendant, there are a number of objective circumstances which ought to lead the court to conclude there is insufficient evidence to demonstrate that there was an agreement relating to the 24-volt ABS brakes.
78First, Mr Maher’s unequivocal evidence was that he did not have a conversation with Mr Irwin about ABS brakes. However, Mr Maher had a clear and detailed recollection of the discussion between him and Mr Irwin about the relocation of hydraulic lines. That tends against a conversation about ABS brakes having taken place.
79Second, the defendant contends that a number of text messages were exchanged between Mr Irwin, Mr Adams and Mr Maher, none of which referred to ABS brakes. The defendant noted the importance of this as Mr Irwin gave evidence that he felt the need to back up important conversations in writing, which he did for the hydraulics discussion.
80The third point is that the defendant agreed to the modification of the hydraulic hoses and agreed to pay a significant amount of the cost. Therefore, it is not credible to suggest that the defendant would have simply ignored a request by Mr Irwin for the ABS brakes.
81The defendant submits therefore that the plaintiff failed to discharge its burden of proving a term of the Agreement in respect of the 24-volt ABS brakes.
82The defendant contends that even if a failure to include 24-volt ABS brakes constituted a contravention in the manner relied upon by the plaintiff, the plaintiff is limited to a payment of damages of $200 only for breach of warranty.
83I am of the view that it is more likely than not, that Mr Irwin would have raised the topic of the need for 24-volt ABS brakes with Mr Maher. It was a matter of some importance to him as he was aware of the need for the trailer to match up with his Scania European truck. Further, I formed the view that Mr Irwin was a meticulous and thorough person and would not have left this matter to chance. Mr Maher did not recall such a conversation. Mr Irwin told Mr Adams that he had said to Mr Maher that he had a Scania truck. Mr Adams said he was aware that a Scania truck would need 24-volt ABS brakes but that might not have been obvious to Mr Maher as a salesperson.
84Despite the fact that Mr Irwin did not confirm the matter in writing, I accept his evidence that he did ask for 24-volt ABS brakes. It is also consistent with his keen disappointment when he arrived on 12 November 2019 and found 12-volt ABS brakes instead. But as he said himself this issue was not a “biggie.” The changeover could be done easily for $200 as was explained by Mr Adams who said to Mr Irwin that UTA was willing to meet that cost. The failure to include the right brakes was not a breach of condition. At most, it was a breach of warranty which might result in an award of damages in the sum of $200. The omission, however, did not entitle the plaintiff to reject the trailer on any contractual basis.
(ii) Rejection of the trailer by reason of misdescription
85The plaintiff contends the sale was a sale by description.
86The plaintiff notes that Mr Irwin did not see the trailer before he paid for it and that is the strongest support for the sale being one of description. The plaintiff says the court should accept Mr Irwin’s evidence about why he did not inspect the trailer.
87In the case of Walker v Sell, the court held that there was no sale by description, a reason being that there was a specific oral agreement instigated by the purchaser providing a right to inspect the vehicle in question over the 12-month settlement period. In such a circumstance the court held that the purchaser could not objectively be understood to have relied on the description when entering into a contract to purchase the vehicle.[6]
[6] (2016) 245 FCR 308 at [124]
88The plaintiff argues this case is distinguishable from the present circumstances. In this case, all parties knew that the plaintiff would not be inspecting the trailer, and full payment was made before any inspection could take place.
89Therefore, in this case, the plaintiff has relied on the description (as expressed in the quote and the invoices provided) in purchasing the trailer.
90The plaintiff submits that the trailer should have been described as a Stonestar trailer.
91This is based on Mr Adams and Mr Maher’s evidence that the trailer was built by Stonestar and built at Stonestar’s factory in China and shipped to Australia.
92The plaintiff argues that Mr Adams and Mr Maher both admitted that at the time of the sale of the trailer the defendant would not undertake any substantial modifications to the trailer as supplied by Stonestar, unless requested by the customer. The defendant painted the trailer and undertook an ‘100-point check’ and other possible finishing touches.
93Further, the plaintiff contends that the vehicle identification number plate on the trailer describes the make as ‘Stonestar Semi BD-RT.’
94To further this argument, the plaintiff relies on the evidence and actions of Mr Adams regarding the defective tilt tray. Mr Adams admitted he had to send it to Stonestar for repair as “that’s their trailer manufacture, let them make the modification.”
95Based on the above, the plaintiff submits that the court ought to find the description in the quote and invoices of the trailer as a ‘UTA Supa-Tilt Drop Deck Tri Axle Semi Trailer’ is a misdescription.
96The defendant argues that the plaintiff’s allegation that the concept of a ‘UTA Supa-Tilt Trailer’ does not exist is misguided. The defendant has labelled the plaintiff’s allegation that only the person that manufactured a product has the naming rights to that product is incorrect and not supported by law or commercial practice.
97The defendant says it did not represent that it manufactured the trailer and this is not alleged by the plaintiff. The defendant only represented that the trailer that it was selling was a trailer to which UTA attached its name and which fitted a particular description. As a consequence of the defendant attaching its name to the trailer, it assumed particular commercial, legal and reputational obligations in respect of the quality of the trailer. Mr Adams gave evidence that UTA finished the Stonestar trailers to a higher standard, paint the trailer or do any modifications required and provide a two-year nation-wide warranty.
98As part of the process of selling trailers under its own name, the defendant takes steps and safeguards to check the quality of the trailer. That includes undertaking a 100-point check, finishing paintwork, detailing and securing cabling. However, it does not matter what the defendant does to the trailer that it purchases from Stonestar; once badged under the UTA name, it becomes a ‘UTA trailer.’
99The defendant summarises the premise of this claim as, “calling it a UTA trailer is as misleading as Coles selling Coles brand cheese.” The obvious point being that customers would not be assume that Coles itself made the cheese and therefore would not be misled by that description. The same applies to any supplier that sells goods manufactured by other parties – the fact that goods are made elsewhere does not mean they therefore do not correspond with description.
100In my view, the defendant did not act in breach of the consumer guarantee contained in s56 of the ACL. The defendant was entitled to sell trailers it purchased from Stonestar under its own badge and accepted legal liability to customers in doing so. The trailer therefore did correspond with the description as a UTA product. In these circumstances, it was not incumbent upon the defendant to describe the trailer it sold as a Stonestar trailer, contrary to the plaintiff’s submission that it should have done so.
(iii)(a) Coaming Rails
101The quotation and Invoice in respect of the trailer refer to “8mm coaming” and “coaming rail.” Both parties accept that 8mm coaming refers to the flat panel that runs alongside the trailer and the thickness of that panel. There is no contest that the trailer had 8mm coaming in accordance with the UTA brochure and the Invoice.
102The plaintiff abandoned in closing any allegation that the lack of a raised coaming rail was a breach of a contractual term. The plaintiff’s sole remaining cause of action in respect of the coaming rail is that the trailer was not fit for its disclosed purpose due to the absence of raised or elevated coaming. The Third Further Amended Statement of Claim pleads that elevated coaming is necessary to “prevent such shipping containers or heavy machinery sliding off the side of the trailer when such items were being loaded or unloaded.”
103In evidence in chief, Mr Adams said that the prime purpose of the Supa-Tilt trailers sold by the defendant was for the recovery of broken-down vehicles and in that application, a flush coaming rail was preferred. In contrast, Mr Irwin gave evidence that when being used to transport shipping containers or like objects, it was imperative that the tilt tray has a coaming rail, in order to prevent the item from coming off the trailer sideways. Mr Adams accepted that a raised coaming rail would be useful for transporting containers or sheds, particularly, where there may be uneven ground.
104Mr Adams and Mr Maher gave unchallenged evidence that:
(a) All of UTA’s Supa-Tilt trailers have flush coaming;
(b) None of UTA’s customers have requested raised coaming on UTA trailers;
(c) Flush coaming has important design utility in that it enables oversized vehicles or equipment to sit over the side of the trailer without them being unbalanced by a raised rail and trailers are permitted to have 150mm of ‘overhang’ over the side of the trailer; and
(d) A raised coaming is not necessary to safely load equipment onto the trailer.
105The defendant submits that the court could conclude from the divergence of views presented that there is an array of views within the industry about the utility of elevated coaming and that the plaintiff has not proved its case on that basis.
106The expert witness, Mr Crawford concludes that “the lack of a raised coaming rail does not make the trailer unfit for the purpose of transporting shipping containers or heavy machinery. It is understandable the raised coaming rail will improve guidance during loading and unloading; however, the rail is obviously not designed to be a principal load restraint method or necessary for the trailer’s intended purpose.”[7] The defendant submits that this opinion was not challenged by cross-examination of Mr Crawford by the plaintiff. Mr Crawford referred to a more expensive type of trailer called Drakes, which is made in Australia. He attached a photo of this model which does have an elevated coaming rail and overall is of a superior quality but double the price of a UTA trailer.[8]
[7] CB 62
[8] CB 63
107The position appears to be that a raised or elevated coaming rail was a feature Mr Irwin wanted and believed to be necessary for his purpose of the loading shipping containers. It seems he proceeded under a misapprehension that the trailer had a raised coaming rail rather than by reason of anything the defendant’s representatives told him. The various photos provided to the plaintiff by the defendant prior to 12 November 2019 depict a flat sided trailer. No raised coaming rail is observable, nor was one specified in the quotation or in the invoice.
108The plaintiff’s claim relating to coaming is restricted to the issue of whether the absence of an elevated coaming rail rendered it unfit for purpose and gave the plaintiff a right to reject it. I am not satisfied that the plaintiff is entitled to reject the trailer due to the absence of an elevated coaming rail. The expert retained by the plaintiff expressly stated that the lack of an elevated coaming rail did not render the trailer unfit to transport shipping containers or heavy machinery. I accept his unchallenged evidence on this topic. There also seems to be some utility in having a flat sider trailer when loading over size loads which can then overhang, according to the defendant’s witnesses. Consequently, I am not persuaded that the absence of an elevated coaming rail caused the trailer to be unfit for its intended purpose. That being so, its absence did not entitle the plaintiff to reject the trailer.
(b) ABS Voltage Braking System
109The plaintiff alleges the absence of 12-volt ABS brakes causes the trailer to be unfit for the disclosed purpose. The disclosed purpose in the plaintiff’s third further amended statement of claim is “transportation of shipping containers and heavy machinery on public roads.” To prove this cause of action, according to the defendant, the plaintiff must demonstrate that the trailer, with 12-volt ABS brakes, is not fit for the purpose of transporting shipping containers and heavy machinery on public roads generally.
110The defendant accepted in paragraph 10 of its Defence that the anti-lock braking system was wired for 12 volts but says that such wiring is Australian Standard and not a defect. The defendant argues the plaintiff cannot establish that the trailer is not fit for the disclosed purpose. The entirety of the plaintiff’s closing submissions on this question is that “due to the mismatch in the voltage for the ABS system, the trailer was not fit to be driven by the plaintiff’s Scania truck which required a 24-volt system.” The defendant notes the inclusion of the words “the plaintiff’s Scania truck which required a 24-volt system” departs from the plaintiff’s pleaded cause of action described above. While 24-volt ABS brakes might be a particular requirement of the plaintiff’s own trucks, it does not mean that the inclusion of 12-volt ABS brakes makes the trailer unfit for the disclosed purpose as pleaded.
111The defendant refers to the expert report of Mr Crawford, which stated that the inclusion of 12-volt ABS brakes did not cause the trailer to not be fit for purpose. He noted that the Australian Design Rules accept either 12-volt or 24-volt systems. Mr Adams’ evidence is that 70% to 80% of UTA’s clients run 12-volt ABS braking systems.
112I am not satisfied that the issue with the ABS voltage entitled the plaintiff to reject the trailer on the basis it was not fit for purpose. As Mr Irwin said the issues of the brakes was no “biggie.” The issue could be remedied easily at a cost of around $200. The expert evidence is that the inclusion of 12-volt ABS brakes did nor render the trailer unfit for purpose. Consequently, this grounds fails.
(c) Cross-plate
113The defendant admits in its defence that there was a minor defect in the trailer by which the cut outs at the rear cross plate were not sufficiently recessed. This defect prevented the functioning of the main tray. The question for the court is whether the acknowledged defect provided a basis for rejection of the trailer.
114Mr Adams’ and Mr Maher’s evidence was that the defect with the cross-plate was a minor defect that was easy to rectify. Mr Adams described rectification as simply requiring two inches of steel to be cut on the cross-plate. Mr Maher said that it was a “simple task that could be quite easily rectified.” Both Mr Adams and Mr Maher said that it was done within a few hours by Stonestar on 13 November 2019 and returned to UTA’s premises by lunchtime. None of this evidence was challenged, save in respect of whether the trailer was taken to Stonestar to be repaired on 13 November 2019 or 14 November 2019.
115The defendant contends the plaintiff conceded in its closing submissions that the defect could be remedied easily and within a reasonable time. Accordingly, it was not a ‘major defect’ under Section 160(d) of the ACL and the plaintiff’s rights are limited under Section 259(2)(a) when requiring the defendant to repair the defect. As the defect has been repaired promptly, the plaintiff’s rights under the ACL are at an end. Therefore, the plaintiff was not entitled to reject the trailer under the ACL by reason of the defect with the cross-plate.
116The reality is that the accepted defect was remedied promptly by Stonestar on 13 November 2019. That being so, it was not a major defect, and it was fixed quickly. This defect was not one which gave the plaintiff any rights to reject the trailer under the ACL.
(d) Winch Hook Housing
117The plaintiff alleges that the absence of a space for the winch hooks to be stored is a defect which causes the trailer to be unfit for the disclosed purpose, being for the transportation of shipping containers and heavy machinery on public roads. This defect could not be readily modified, such that the plaintiff was entitled to reject the trailer. In its Defence, the defendant says the hooks were UTA’s standard configuration and consistent with industry standard.
118This allegation is based on the evidence of Mr Irwin, who stated that such a space was necessary for the purpose of loading machinery. Mr Irwin said as a matter of geometry, one could not secure a shipping container using the container pins without stowing aside the winch hooks. Whilst Mr Adams gave evidence that a container could be loaded over the top of the winch hook because there is space underneath the container, the plaintiff argued that this should not be accepted. The court should accept that Mr Adams’ comments on the appropriate use of the Supa-Tilt trailers sold by the defendant are really confined to the transportation of vehicles rather than shipping containers.
119Mr Irwin’s evidence was contradicted by the evidence of Mr Adams, who claimed that containers or other machines loaded onto the trailer have a raised area at the bottom under which the winch hooks typically sit. Mr Adams’ evidence was that in the 15 years that UTA has sold Supa-Tilt trailers, the absence of a location for the winch hooks has not been raised by a single customer as an issue.
120The defendant also relies on the evidence of the independent expert, Mr Crawford that the lack of a space to stow away the winch hooks does not make the trailer unfit for purpose. His opinion was that this condition is a functional feature not provided as standard with this trailer and although potentially undesirable, it was not considered to be a breach of an ADR (Australian Design Rules). His overall conclusion was that the trailer was for its intended purpose of transporting shipping container and heavy machinery on public roads.[9]
[9] CB 59 and 63
121Mr Irwin was clearly disappointed with the absence of a place to stow away the winch hooks. It was not something that was discussed during the sale negotiations nor was it specified in the quotation or invoice. Mr Adams said UTA had never sold a trailer with this feature and Mr Irwin was the first customer to complain. Again, the problem has arisen due to Mr Irwin’s subjective expectations not being met. But the legal issue that remains is whether the lack of a storage space to store winch hooks renders the trailer unfit for purpose? The answer to this issue is no, given the uncontradicted evidence of the expert witness. Consequently, this issue did not entitle the plaintiff to reject the trailer.
122The end result under the right of rejection section is that the alleged defects, either separately or collectively, did not give the plaintiff the right to reject the trailer.
B. Reimbursement Agreement
123The plaintiff alleges an agreement was concluded between Mr Irwin and Mr Adams on 12 November 2019 to the effect that Mr Irwin would not receive the trailer and would be fully reimbursed for the purchase price.
124The defendant refutes this, stating the agreement would be void because of uncertainty or incompleteness arising from the myriad of other matters that would be required to be effected in order to achieve a refund.
125The plaintiff bears the burden of proving, on the balance of probabilities, that the reimbursement agreement was concluded and what were its terms.
126Courts have, in commercial contexts particularly, expressed repeated caution with regards to the making of findings based on verbal discussions in the absence of contemporaneous documentary support, particularly where a number of years has elapsed since the discussions occurred.
127In Commonwealth Bank of Australia v Shahen Serobian, Hammerschlag J observed as follows:[10]
(i)“where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court, which means the court must feel an actual persuasion of its occurrence of existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
[10] [2009] NSWSC 302 at [362]
128His Honour’s comments reflect the well-known statement of McLelland CJ in Watson v Foxman:[11]
“Further, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court must feel an actual persuasion of its occurrence or existence.”
[11] (1995) 49 NSWLR 315 at 318-319
129Watson v Foxman was considered recently by Vaughan J in Girgis v Poliwka (No 6) as follows:[12]
“Watson v Foxman does not lay down a rule of universal application. It sets out considerations to which a trier of fact should have regard in determining whether misleading or deceptive conduct by oral representation- or the making of an oral agreement- is established in the circumstances of the particular case. The appropriateness of those considerations cannot be doubted. The many occasions on which this passage has been recited with approval is testament to its enduring accuracy.
The central task for me as a trier of fact is to assess whether the plaintiffs have proved, on the evidence adduced, that the pleaded alleged representations and alleged advice occurred. The standard of proof is the balance of probabilities. But a mere mechanical comparison of probabilities, independent of any belief in the reality of a fact, cannot justify a finding that the alleged fact occurred. I must feel an ‘actual persuasion’ of the occurrence of existence of the disputed representation or advice. The evidence as a whole must establish a reasonable satisfaction on the preponderance of probabilities so as to sustain the relevant factual finding.
It is, however, still necessary to assess the oral testimony in the context of the contemporary materials, objectively established facts and the apparent logic of events. As Tottle J has recently observed, reliance on contemporaneous documents is preferable in cases involving events which occurred long before the litigation; contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements when false memories can intrude.”
[12] [2019] WASC 230 at [119]-[123]
130The plaintiff says the court should accept Mr Irwin’s evidence as to what generally took place on 12 November 2019.
131In arguing that there was a reimbursement agreement, the plaintiff places great weight on the correspondence from Mr MacLean after 12 November 2019. The plaintiff says this correspondence reveals that Mr MacLean had a phone conversation on 14 November 2019 with Mr Adams, where Mr Adams indicated that the defendant was willing to give a full refund. The plaintiff contends that Mr MacLean has no incentive to misrepresent his conversations with ANZ and Mr Adams.
132The plaintiff also relies on the evidence of the text message from Mr Maher on 14 November 2019 to Mr Irwin that the trailer was able to be picked up. The plaintiff submits that this represents the change of position by the defendant on the refund. Mr Adams and Mr Maher both gave evidence that the trailer was sent to be repaired on 13 November 2019, but this message was only sent on 14 November 2019. Further, Mr Irwin’s text message on 13 November 2019 referencing what UTA needed to “work through” indicates that Mr Maher had a conversation with Mr Irwin to the effect that the refund was not able to be processed. The plaintiff submits that the day gap between 12 and 14 November 2019 is contrary to Mr Adam’s evidence that he flat out refused to provide the refund on 12 November 2019.
133The plaintiff contends that if there is an agreement for a refund, then it is clear on its face that the plaintiff should not have to bear other costs that would reduce the value of the refund. The defendant should pay these costs.
134If the court finds that the reimbursement agreement was made out and subsequently breached, then the plaintiff seeks specific performance of this agreement, being a net refund of $118,700. The plaintiff also seeks damages for the breach representing finance costs in the sum of $10,195.67.
135In contrast, the defendant argues there are six factors which are, each by themselves and cumulatively are strongly suggestive that no such agreement was reached.
136First, Mr Adams’ unequivocal evidence that he never agreed to a refund. Mr Adams gave clear and cogent evidence about what he said to Mr Irwin and why UTA could not give a refund in the circumstances. Mr Adams did not recall shaking hands with Mr Irwin. He said Mr Irwin was getting hostile, so Mr Adams left because he was worried about the situation escalating. He maintained this in cross examination. Mr Maher, who would have been responsible for effecting a refund, also gave unequivocal evidence that Mr Adams never instructed him to give a refund and that doing so was not possible (in his opinion). Both witnesses were honest and reliable.
137Second, there were good commercial reasons why it was not in UTA’s interests to give a refund. By 12 November 2019, the trailer had been registered in Irwin Logistics’ name and a PPSR charge had been lodged over the trailer. Therefore, it became a second-hand trailer and could not be sold for the same price the plaintiff had paid. The defendant submits this tends against Mr Adams agreeing to re-sell the trailer that was owned by the plaintiff.
138Third, UTA had incurred costs of between $10,000 and $30,000 in advertising and preparing the trailer for sale to the plaintiff. If the defendant had to re-sell the trailer, it would incur these costs again. The cost breakdown is as follows:
(a) marketing the trailer across seven to ten websites which cost approximately $1,000 a month each, being a total of $7,000 to $10,000 a month in marketing;
(b) engaging a sub-contract engineer, mechanic, truck driver and pre-delivery contractor to perform all relevant 100-point pre-delivery checks, which costs approximately $3,500;
(c) paying commission to the UTA salesperson of 10% of the gross profits of the trailer, which had already been paid in respect of this sale;
(d) paying for roadworthy costs of approximately $3,000, including transporting the trailer to the roadworthy and the inspection; and
(e) paying transfer costs for the transfer of the registration UTA to Irwin Logistics and then the transfer of registration to the subsequent owner.
139Mr Adams was not challenged in his evidence about the defendant incurring any of those costs, as well as about his view that those costs presented a serious obstacle to the defendant re-selling the trailer. It is submitted that the evidence presents a strong reason why Mr Adams would have not simply agreed to refund the trailer.
140The defendant argues the correspondence from Mr Irwin is inconsistent with a refund having been agreed to on 12 November 2019. On the evening of 12 November 2019, on his drive back to Queensland, Mr Irwin emailed Mr Adams and purported to exercise his “cooling off rights” because “a number of SuperTilt design features have not been adopted by this particular trailer.” Separately, on 14 November 2019, Mr Irwin sent text messages to Mr Maher in which he stated that “we are not purchasing the trailer due to the standard of the trailer that was presented to us yesterday. Please do not respond to this message.”
141The defendant submits it is critical that neither of these messages refer to an agreement to provide a refund. If Mr Adams had agreed to give a refund, Mr Irwin would undoubtedly have stated this at some point in this correspondence.
142Further, the need to exercise one’s ‘cooling off rights’ demonstrates that there was no agreement for a refund. If there was, then exercising this right would be redundant.
143The defendant submits the emails sent by Mr MacLean on 13 and 14 November 2019, on which the plaintiff places great significance for its case regarding an agreement, are inconsistent with an agreement having been concluded. In those emails, Mr MacLean states that ANZ “expect a full refund.” There is no mention of an actual agreement having been made.
144The defendant contends that Mr MacLean’s evidence was that the purpose of his communications with Mr Adams after 12 November 2019 was to get him to agree to provide a refund. The defendant argues this demonstrates that Mr Adams had not previously agreed to give a refund.
145It is clear from Mr MacLean’s own admission and the content of his emails that Mr MacLean had not been told by Mr Irwin that Mr Adams had agreed to give a refund on 12 November 2019. Had Mr Irwin told him this, the language in his email would be different. It is likely Mr Irwin instructed Mr Maclean to “get” Mr Adams to agree on the refund because no such agreement had previously been made.
146The defendant maintains that there is no commercial common-sense reason why the defendant would agree to give a refund and then retract this the following day.
147In order for an agreement reached between parties to be binding, it must be certain and complete in all essential respects. In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd, Ipp J held as follows:[13]
“Once the court has determined that the requisite intention is present, it is then necessary to go on to consider whether the contract is so incomplete or uncertain as to be void.”
[13] (2000) 22 WAR 101 at 111
148The following statement by Sugerman J, approved by Menzies J in Thorby v Goldberg is often cited in this connection:[14]
“It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least its essential and critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intentions.”
[14] (1964) 112 CLR 597 at 607
149For the reimbursement agreement to be valid and enforceable, it must contain all the essential and critical terms necessary to constitute a binding agreement. There cannot be terms that are omitted without which the agreement could not operate.
150The reimbursement agreement is pleaded as involving terms that the plaintiff would not receive the trailer and would be fully reimbursed for the purchase price of the trailer. However, the agreement as pleaded does not refer to the critical aspect of the registration of the trailer (which at the time of the alleged reimbursement agreement was in the name of Irwin Logistics).
151The defendant submits that the reimbursement agreement alleged by the plaintiff is that the plaintiff would be entitled to a refund of the purchase price but would not be obliged to transfer registration of the trailer back to the defendant. The defendant submits that this is not workable and could not have been agreed upon.
152The defendant contends that even if the reimbursement agreement did contain a term requiring the transfer-back of the trailer’s registration, there are three costs that are required to be paid to effect such a transfer-back:
(a) The costs of the transfer of registration ($1,738.45);
(b) The costs of obtaining a roadworthy certificate (approximately $3,000); and
(c) The commission that was paid to Mr MacLean. Mr MacLean’s evidence was that there was no discussion about the repayment by him of the commission earned. He did not recall the specific commission but gave evidence that it was usually 0.7% to 3%. In this case that would be between $846.30 and $3,627.
153The plaintiff has argued that it was an implied term of the agreement that these costs would be payable by the defendant.
154The defendant submits that this is inconsistent with the requirement for the implication of facts set out in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council.[15] In particular, it could not be said that it is “so obvious and it goes without saying” that the defendant would pay Mr MacLean’s commission and other costs to ANZ.
[15] (1977) 180 CLR 266
155As no mechanics necessary to effect the refund were discussed on 12 November 2019, the court cannot force those costs on one of the parties when the agreement did not require them to bear them.
156Having regard to all of the evidence, I am not actually persuaded Mr Adams entered into a binding agreement with Mr Irwin on 12 November 2019 to refund the purchase price, as contended for by the plaintiff. The are a number of reasons for my conclusion. The first being that even on Mr Irwin’s oral evidence, it is far from clear that Mr Adams said as much. Mr Irwin was unable to recall the words spoken by Mr Adams. The extract of transcript at paragraph 39 above, alludes to Mr Adams making arrangements to repair the trailer. If it had already been agreed that UTA would refund the purchase price, then there would be no need for Mr Adams to discuss any arrangements to fix the trailer. The fact that he did so, on Mr Irwin’s own evidence, is more consistent with a finding that Mr Adams was trying to resolve the problem at hand by repairing the trailer to Mr Irwin’s satisfaction. Mr De Sousa could not recall what Mr Adams said about a refund. Mr Maher said he did not remember any discussion about a refund for the trailer. He recalled Mr Irwin being very abrasive and rude, so he thought it was better that he left this to Mr Adams, being the owner of the business. Mr Adams categorically denied every agreeing to give a refund.
157Secondly, for the reasons given by Mr Adams, it is objectively unlikely he would have agreed to a refund when as he said the trailer would be now second hand as it was registered in the plaintiff’s name and had a security interest held over it. It was no longer UTA’s trailer. UTA does not deal in second hand vehicles as a rule.
158Thirdly, the mechanics of how the refund would work were not discussed, such as transferring the registration back to UTA, dealing with the security interest held by the ANZ and the broker’s commission. As these matters were not agreed upon, the terms of the agreement were incomplete and uncertain.
159Fourthly, if there had been an agreement, then there would be no need to refer to a cooling off period which Mr Irwin did in his email sent shortly afterwards on 13 November 2019. He said the use of this term was an incompetency on his part. Given Mr Irwin’s evidence that if business had taught him anything, you might have a discussion, but you need to back it up an email, it is surprising he did not refer to there being an agreement for a refund in this email or in his later texts.
160Fifthly, the communications with Mr Maclean were suggestive of an attempt to get UTA to agree to a refund rather than there being an extant agreement in place. If the agreement was made on 12 November 2019 as alleged, then there was no need to get the supplier to agree to provide a refund, which was what Mr Maclean was attempting to do. The plaintiff relies solely upon there being a concluded and binding agreement made on 12 November 2019 and not afterwards.
161As I have already said, I regarded the witnesses as honest and doing their best to remember oral discussions from some four years ago. It is a natural human response to recall events in a way which is favourable to one’s cause. People can simply be mistaken as to what occurred. The plaintiff, however, bears the onus of proof on the issue. I am not satisfied, on the balance of probabilities, that the plaintiff proved the existence of a binding reimbursement agreement. Consequently, there was no obligation placed upon the defendant to refund the purchase price to the defendant.
C. Misleading and deceptive conduct
162The plaintiff alleges that the defendant engaged in misleading or deceptive conduct through misrepresenting that the trailer was a “UTA Supa Tilt Drop Deck” and through the conduct of silence by failing to disclose that it was a Stonestar trailer.
163The relevant consideration is whether the representations alleged by the plaintiff against the defendant constitute misleading or deceptive conduct under Section 18 of the ACL.
164The plaintiff submits that at the time of purchase, Stonestar marketed the same Supa-Tilt trailers under its own name, as it was entitled to do as the manufacturer and designer of the trailers.
165Further, that the trailer is a high value good and a specialised product with machinery for a particular use. Mr Adams accepted that for about 10-20% of the defendant’s market, the mark and manufacturer of a trailer was an important consideration. The court ought to accept that the mark and manufacturer of the trailer would be important to a reasonable consumer.
166The plaintiff submits that for this reason, the positive representation that the trailer was a UTA trailer and the failure to disclose that the trailer was a Stonestar trailer, the conduct of the defendant constitutes misleading and deceptive conduct. The plaintiff contends that there was a reasonable expectation that actual mark and manufacturer of the trailer would be disclosed.
167Mr Irwin said he has been told by people in the industry that Stonestar trailers were poorly put together and not to go near them and not to touch them with a barge pole. When asked what he would have done if he had known the trailer was a Stonestar trailer Mr Irwin replied: “I would probably have put my six month wait in for a Moore Trailer.”[16]
[16] T117
168The plaintiff relies on Fleetman Pty Ltd v Carins Pty Ltd where the failure to disclose that the car was described as a demonstrator model was not a current year model constituted misleading and deceptive conduct.[17] The plaintiff concedes that the case does not mirror the present circumstances but uses it to highlight that the failure to provide information, even if not requested, will constitute misleading and deceptive conduct.
[17] [2005] FCAFC 80
169If the court finds that Section 18 of the ACL has been made out, the plaintiff claims it is entitled to relief under Section 236 or 243 of the ACL.
170The plaintiff alleges that the trailer failed to correspond with its description, that description being that the trailer was a “UTA Supa-Tilt Drop Deck” branded trailer. The plaintiff submits that by representing the trailer being a ‘proprietary design and make of Ultimate Trailers,’ the defendant was engaging in misleading or deceptive conduct.
171The defendant claims that this allegation is misguided and the concept of a “UTA Supa-Tilt Trailer” does not exist. The defendant submits that the plaintiff’s allegation that only the person that manufactured a product has the naming rights to that product is not supported by law or commercial practice.
172The defendant maintains it did not represent that it manufactured the trailer and the plaintiff does not allege that it made this representation. The defendant accepts that such a representation would be misleading. Instead, the defendant maintains that it represented that it was selling a trailer to which UTA attached its name and the trailer fit a particular description.
173The defendant accepts that silence, or a failure to inform can constitute misleading or deceptive conduct. However, there is no blanket requirement for a vendor to disclose to a purchaser every fact relevant to a good being sold. As French CJ and Kiefel J considered in Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd, the circumstances in which silence or non-disclosure of information can be misleading or deceptive are various.[18] In commercial dealings between individuals or individual entities, characterisation of conduct will be undertaken by reference to its circumstances and context.
[18] (2010) 241 CLR 357
174In Miller, the court approved of the decision in Demagogue Pty Ltd v Ramensky. Gummow J referred similarly to the limitation that:
“unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist.”[19]
[19] Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
175Likewise, in Nagy v Masters Dairy Ltd, R D Nicholson J held:[20]
“the significance of silence falls to be considered in the context in which it occurs. It is the context which must be examined to determine whether or not facts give rise to a reasonable expectation that if particular matters exist they will be disclosed. Unless the facts are such as to give rise to the reasonable expectation to that effect, mere silence may not support the inference that the fact does not exist. What is reasonable falls to be decided in the context of the ordinary incidents and character of commercial behaviour.”
[20] Nagy v Masters Dairy Ltd (1996) 150 ALR 273 at [291]
176The defendant submits that it is common sense and experience that, put simply, a failure to convey something cannot be misleading if there was no reasonable expectation that that thing would be conveyed. As the authorities above disclose, whether an expectation was reasonable necessarily depends on the context and industry in which the transaction takes place.
177The plaintiff has sought to meet this requirement by its particulars as set out above. In particular, the plaintiff has stated that it was its reasonable expectation that it would be informed of the manufacturer “in an industry where makes and makers of goods are commonly communicated.” Although the plaintiff may have had an expectation about being informed of the manufacturer of the trailer, the plaintiff has not proved that this is industry practice and therefore that its expectation was reasonable.
178The difficulty that the plaintiff faces, according to the defendant, is that the plaintiff has not adduced any evidence of industry practice in the trailer industry about whether manufacturers of trailers are typically communicated. The independent expert was not asked about whether the make or maker of trailers is commonly communicated. Mr Irwin did not seek himself to give evidence of industry practice, his evidence being limited to his personal opinion of Stonestar trailers.
179Mr Adams gave the only evidence of industry practice. Mr Adams’ evidence was that customers look to function, not form and simply try and find a trailer that will suit their purpose and do the job required.
180Mr Adams’ evidence was that if a customer was buying an Australian-made trailer, which are typically twice the price of a Chinese-made trailer, they might be concerned about the particular brand. The defendant submits that Mr Adams has been engaged in the same practice for 15 years and therefore is capable of giving an expert opinion about the trailer industry by reason of his experience in that industry.
181As this is the only evidence before the court as to industry practice for the sale of trailers, the court is left with unchallenged evidence that in the trailer industry (or at least, the overseas-made trailer industry), makes and makers of goods are not commonly communicated.
182I do not consider that the defendant engaged in any misleading and deceptive conduct by selling the trailers it purchased from Stonestar under UTA’s badge. The evidence is that the defendant would make any modifications required and would do various checks etc before selling a trailer and give a customer a two-year warranty. The plaintiff did not allege that the defendant had manufactured the trailer which would have been misleading. It can be readily accepted that suppliers often sell products which are made by other parties. This is what occurred here. In the circumstances of this case, I am not persuaded that the defendant selling the trailer under its name was a misdescription which amounted to misleading or defective conduct under s18 of the ACL.
183Nor am I persuaded that there was misleading or deceptive conduct by silence, being the alternative ground raised under s18. It assumes the defendant was under an obligation to speak up and tell the plaintiff that the trailer was in fact a Stonestar trailer. As the defendant pointed out there was no evidence of any industry practice led by the plaintiff to establish that the defendant should have spoken up. Mr Irwin’s subjective view is insufficient to make good the proposition advanced. The evidence from Mr Adams was that customers were more concerned with function and whether the trailer would do what was required. The expert was not asked to give an opinion on this topic. All in all, I do not consider there was any obligation placed upon the defendant to inform the plaintiff the trailer was a “Stonestar trailer”, being the allegation made.
184Consequently, the claim for misleading or deceptive conduct by silence fails, as does the other head claimed for misrepresentation that the trailer was a UTA trailer.
Damages for misleading or deceptive conduct
185The plaintiff claims relief under section 243 or 236 of the ACL for misleading and deceptive conduct that caused the plaintiff to enter into the purchase.
186Under Section 243, the court has the power to order a refund as has been sought otherwise by the plaintiff. Further, Section 236 allows the court to order damages beyond the amounts refunded. The quantum of available damages is equivalent to the difference between the refund and the payout figure to the ANZ, less the sum of $2,200 for the on-road costs. The plaintiff provides a final figure of $10,195 for finance costs.
187The defendant notes that part of the plaintiff’s claim concerns ‘costs of finance,’ being interest charges paid to ANZ in respect of the loan for the purchase of the Trailer. The plaintiff alleges that it should be paid those costs in addition to an amount for a refund of the trailer if it is entitled to reject the trailer. As they are not losses that flow directly from the plaintiff’s cause of action, they are considered a consequential or indirect loss.
188The quotation sent to the plaintiff on 22 October 2019 and the invoices sent on 29 October 2019 contain a statement that ‘Standard UTA Terms & Conditions of Sale apply.’ Clause 6 of those terms contains a broad exclusion clause for various types of loss, including consequential losses.
189The defendant does not assert that the plaintiff was actually provided a copy of the standard terms. But having seen that statement regarding the applicability of UTA’s terms , Mr Irwin proceeded to conclude the agreement for the purchase of the trailer.
190The defendant submits that the plaintiff, having received notice that the standard terms apply, concluded the agreement with knowledge of that fact and as a result, the standard terms are incorporated by notice into the agreement. In this respect, the case is broadly analogous with Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd.[21] In that case, a purchaser signed a credit application which contained the words “I/we acknowledge receipt of and accept the General Terms and Conditions of Sale” and proceeded to pay for and receive the relevant product. Even though the purchaser had not seen the terms, McPherson JA held that they had been incorporated into the parties’ bargain. His Honour held at [39]:
“Despite the use of the word ‘accept,’ it is, I think, clear enough that technically the concluding words of the credit application embodied an offer to the plaintiff from the defendant to carry on their buying and selling on the terms of the General Terms and Conditions of Sale. That offer was certainly accepted at the latest when, if not before, the plaintiff first supplied resin at the request of the defendant. It is true that the defendant did not, or may not have, become aware of the terms of those General Conditions until the first invoice was delivered by the plaintiff, or even at all. But that is irrelevant. It is perfectly possible in law for a person to contract on terms that are incorporated into a contract only by reference to another document, which that party has never before seen, and may in fact never set eyes on.”[22]
[21] [1999] QCA 472
[22] Ibid [39]
191The defendant submits that in the same way, the plaintiff was bound by the standard terms whether it had in fact received them or not. It had entered into an agreement which expressly contained those terms. The terms were available, had it requested them. They formed part of the agreement. By closing, the plaintiff accepted it had received notice of the terms.
192The plaintiff noted the defendant is not able to contract out of its obligations under the ACL. Consequently, the standard terms do not apply and its claim for damages is not excluded.
193For the reasons given earlier, the plaintiff did not prove the defendant engaged in misleading or deceptive conduct, so the question of damages does not fall to be considered. If it had, I would have been satisfied that the defendant’s terms, of which the plaintiff had notice, did not exclude damages under the ACL as a matter of law. The quantum of damages claimed was not in dispute, being the price paid by the plaintiff and the various on road and financing costs. Had the plaintiff succeeded in a proving a contractual breach, then I would have accepted the defendant’s alternate submission that the financing costs incurred relating to the ANZ loan were excluded under clause 6 of UTA’s standard terms, being consequential losses.
Counterclaim
194By way of counterclaim, the defendant seeks:
(a) damages for breach of an implied term of the agreement the plaintiff would collect the trailer within a reasonable time of purchase;
(b) further or alternatively, orders pursuant to the Australian Consumer Law and Fair Trading Act 2012 (Vic) for disposal of the trailer and payment of UTA’s costs incidental thereto.
195The defendant argues the implication of a term requiring the plaintiff to collect the trailer within a reasonable time satisfies the criteria set out in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council. [23] It is also reflected by section 34 of the Goods Act, which provides that it is the duty of the buyer of goods to accept and pay for them in accordance with the contract of sale. It could not be reasonably contended that if the plaintiff did not have a right to reject the trailer and owned the trailer that it was permitted to leave it indefinitely on the defendant’s land. Accordingly, if the court concludes that the plaintiff did not have a basis to refuse the acceptance of the trailer, the court ought to order that the implied term of the agreement was breached, giving rise to the right to damages.
[23] (1977) 180 CLR 266
196The defendant separately seeks orders for the disposal of the trailer pursuant to Section 62 of the Australian Consumer Law and Fair Trading Act 2012. Under that provision, a party which has received goods that are not collected may dispose of the goods if:
(a) it has given the owner of the goods written notice of its intention to dispose of the goods; and
(b) within 28 of that notice, the goods have not been collected.
197The plaintiff has not collected the trailer within 28 days of that date. In those circumstances, the defendant has the right to dispose.
198The court has express power under Section 70 of the Australian Consumer Law and Fair Trading Act 2012 to order the disposal of uncollected goods pursuant to an application made under Section 68, which is an application the defendant has made by its counterclaim.
199In addition, the defendant claims it is entitled to payment under Section 55(2)(b) of its costs, including costs of storage.
200The defendant accepts that it has not suffered a direct financial loss on account of storage. However, the defendant it is entitled to an equivalent cost of storage in that it would have been permissible for the defendant to have in fact stored the trailer at a third-party premises. Had it done so, the costs for storage would have been payable by the plaintiff.
201Mr Gerald Giampiccolo, the defendant’s solicitor, swore an affidavit on 29 May 2023. He obtained and exhibited to his affidavit, three quotes relating to storage costs payable in Melbourne for comparable trailers. Based on these quotes, the defendant seeks storage costs of $9 per day, being a rounded average of the comparable costs. The total sum claimed for storage costs is $11,727.
202The plaintiff objected to the admissibility of the affidavit on the grounds that it contained inadmissible hearsay. The plaintiff was content for me to rule on this objection in these reasons.
203The defendant says the affidavit is admissible as it is not hearsay under s62 of the Evidence Act 2008 (Vic). It did not contend the emails are admissible as business records.
204The first point to note is that Mr Giampiccolo was not called to give oral evidence, as would be the usual position for a witness at trial.[24] The evidence in his affidavit was not led for a non hearsay purpose under s60 of the Evidence Act. The purpose of the evidence was to prove the quantum of storage costs charged by the three entities concerned. It was evidence sought to be relied upon given by parties who were not before the court. Section 63 was not relied upon nor was any notice given under s67. I consider the affidavit did contain hearsay evidence and was therefore inadmissible at the trial.
[24] Rule 40.02
205Even if the affidavit was admissible, the fundamental problem for the defendant is that it has not proved it sustained any actual loss by reason of the trailer remaining on its premises. The plaintiff argues the defendant has not incurred any expenses in relation to storing the trailer and has not provided evidence of alternative uses of the land. Therefore, the claim for damages should be dismissed. I agree. The defendant has not paid any storage costs to anyone nor was there any evidence that it could have let or otherwise used the space where the trailer was located. Whilst no doubt inconvenient to have an unused trailer sitting on its premises at Boneo for some years now, there is no evidence that the defendant has sustained any financial loss as a consequence.
206In the event the storage costs are not allowed, the defendant argues the court ought to conclude that there has been a breach of the implied term of the agreement to collect the trailer and award the defendant nominal damages of $1. I accept that there was an obligation upon the plaintiff to collect the trailer in circumstances where the court has found it was not entitled to reject the trailer. Therefore, I find there was a breach by the plaintiff of an implied term for collection. I will award nominal damages for that breach in the sum of $100 in favour of the defendant.
Conclusion
207The plaintiff did not establish its claim against the defendant for the reasons outlined above. I will order that the plaintiff’s claim be dismissed.
208I was not persuaded that the defendant made out its counterclaim for damages. Additionally, I was not prepared to make any orders for disposal of the trailer as was sought by the defendant in the absence of notice to ANZ and the bank having an opportunity to be heard on the form of orders, should it wish to do so. As already noted, ANZ holds a registered security interest over the trailer.
209The effect of my findings is that the plaintiff remains the owner of the trailer. The parties are directed to confer and make arrangements for the collection and/or disposal of the trailer consequent upon these reasons. The plaintiff’s solicitors are also directed to provide a copy of these reasons to ANZ. I will reserve liberty to the parties to apply in the event that formal orders regarding disposal of the trailer become necessary.
210I will hear from the parties regarding the precise form of orders to be made consequent upon these reasons, including costs.
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Certificate
I certify that these 46 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 18 December 2023.
Dated: 18 December 2023
Associate to Her Honour Judge A Ryan
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