Mickeyblu Australia Pty Ltd v Kenyon Family Pty Ltd t/as Riviera WA as Trustee of the Kenyon Family Trust
[2024] WADC 74
•5 SEPTEMBER 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MICKEYBLU AUSTRALIA PTY LTD -v- KENYON FAMILY PTY LTD t/as RIVIERA WA as Trustee of the KENYON FAMILY TRUST [2024] WADC 74
CORAM: CHRISTIAN DCJ
HEARD: 4, 5, 6, 7, 8, 11, 12, 13 DECEMBER 2023 & 16, 23, 24, 25, 29 JANUARY & 1 FEBRUARY 2024
DELIVERED : 5 SEPTEMBER 2024
FILE NO/S: CIV 3340 of 2021
BETWEEN: MICKEYBLU AUSTRALIA PTY LTD
Plaintiff
AND
AND
KENYON FAMILY PTY LTD t/as RIVIERA WA as Trustee of the KENYON FAMILY TRUST
First Defendant
TREVOR PAUL KENYON
Second Defendant
DALE WILLIAM GAVENLOCK
Third Defendant
KRISTY MARIE GAVENLOCK
Fourth Defendant
Catchwords:
Contract for sale of gooseneck trailer - Whether express or implied terms of contract were breached
Competition and consumer law - Misleading and deceptive conduct - s 18 Australian Consumer Law - Whether representations made
Competition and consumer law - Consumer guarantees - s 54 Australian Consumer Law - Whether gooseneck trailer of acceptable quality
Competition and consumer law - Consumer guarantees - s 55 Australian Consumer Law - Whether gooseneck trailer fit for disclosed purposes
Legislation:
Australian Consumer Law, s 15, s 18, s 54, s 54(7), s 236, s 259(2)(b)(ii), s 259(3), s 259(3)(a), s 259(4)
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Ms Y Zhang First Defendant : Mr C D Clifton Second Defendant : Mr C D Clifton Third Defendant : Mr C D Clifton Fourth Defendant : Mr C D Clifton Solicitors:
Plaintiff : Vogt Legal First Defendant : Clifton Legal Group Second Defendant : Clifton Legal Group Third Defendant : Clifton Legal Group Fourth Defendant : Clifton Legal Group Case(s) referred to in decision(s):
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266.
Girgis v Poliwka [No 6] [2019] WASC 230.
Watson v Foxman (1995) 49 NSWLR 315.
CHRISTIAN DCJ:
Contents
1. Introduction
The parties & witnesses
Gooseneck trailer design & technical terms
2. Causes of action
Breach of contract causes of action
The first breach of contract claim
The second breach of contract claim
Breach of Australian Consumer Law
Misleading or deceptive conduct cause of action
Overlap in causes of action
3. The issues
4. The law
Legal principles applicable to the causes of action
Onus & standard
5. Representations & contractual terms
Significance of 30 October 2020 Conversation
Mrs Gavenlock's involvement in the 30 October Conversation
The 30 October Conversation - The YouTube Video
General observations about Mr Ryan's evidence
General observations about Mrs Ryan's evidence
Carrying capacity or payload of the Gooseneck Trailer
Three horses representation
Weight distribution & axle design
The Redesign Conversation
GMC's capacity to tow the Gooseneck Trailer
Conclusions
6. Hitch or tow ball mass compliance with approval
Approved design
ADR restriction on hitch mass
The Gooseneck Trailer's hitch mass
Conclusions
7. Defects
Inspection of the Gooseneck Trailer by Mr Jue Sue
Other potential causes of defects
Main defect relied upon
Defects 17, 18, 35, 46 & 52 - Crack in the Gooseneck Trailer frame
Strength of steel used in the Gooseneck Trailer
Mr Southam's opinion
Mr Style's opinion
Other defects
Potentially significant defects
Defects 15 & 32 - Rims unsuitable & tyres unsuitable
Defects 19 & 49 - Hitch sleeve hole size
Defect 23 - Unsuitable suspension system
Defect 24 - Crack in rocker box
Defect 26 - Trailer heavier than represented
Defect 30 - Lifting leg
Defect 43 - Anti-locking braking system
Defects not established
Defect 1 - Cupboards out of alignment
Defect 2 - Lighting wires exposed
Defect 3 - Bathroom cupboard chipped
Defect 4 - Leaking shower
Defect 5 - Lifting tiles
Defect 7 - Repair of plugs in slider
Defect 8 - Missing bolt to dinner table
Defect 9 - Missing laminate
Defect 14 - Water tank pipes too low to the ground
Defect 16 - Replacement invertor
Defect 21 - Wedge between mounting bracket
Defect 22 - Tack welding to wheel studs
Defect 25 - Stabiliser legs unsuitable
Defect 27 - Kinked plumbing lines
Defect 29 - Leaking slider & water damage
Defect 31 - Defective electrical installation of fuse & switch
Defect 34 - Internal roof sagging
Defect 37 - Awning defects
Defect 38 - Leaking to rear storage area & damaged stock
Defect 39 - Cracking to panelling opposite to entrance door
Defect 44 - Lighting not in compliance
Defect 45 - Inadequate protection of brake hoses
Established defects
Defects 6 & 33 - Slider cushions/seating upholstery wearing & ripping
Defects 11, 12 & 13 - Failure to provide items
Defect 10 - Poor finish to benchtops & storage area
Defects 41 & 47 - Compliance plate not fully stamped
Established Defects - Conclusions
8. Disclosed purpose/living quarters representation
9. Conclusions
Annexure A - Rulings on objections to Mr Style's First Report
Annexure B - Rulings on objections to Mr Style's Second Report
1. Introduction
1Mickeyblu Australia Pty Ltd (Mickeyblu), purchased a 7 tonne gooseneck trailer (the Gooseneck Trailer) from the first defendant, Kenyon Family Pty Ltd as Trustee for the Kenyon Family Trust t/as Riviera WA (Riviera), for the sum of $126,000 (including GST).[1] The agreement was entered into in November 2020 and the sale was completed in April 2021.
[1] Paragraph 17 of the Statement of Claim pleads the sum of $126,000 to be exclusive of GST. However, the evidence suggests otherwise.
2Mickeyblu contends the Gooseneck Trailer was not suitable for its disclosed needs and that the Gooseneck Trailer suffered from significant defects. Mickeyblu sues Riviera and three of its directors for breach of consumer guarantees, misleading or deceptive conduct and breach of contract.
The parties & witnesses
3Mickeyblu carries on the business of selling recreational camping equipment. Mr Michael Ryan and Mrs Karen Ryan operate Mickeyblu. Mr Ryan is the director of Mickeyblu. Although Mrs Ryan is not a director, she plays a significant role in Mickeyblu's business. Mr Ryan described her as the 'backbone' of the business.[2] She described her role as administration, including logistics, freight, ordering stock and paying bills.[3] For around 10 months of the year the Ryans travel around Australia selling Mickeyblu's products at caravan and camping shows. Prior to the purchase of the Gooseneck Trailer they travelled in a Landcruiser towing a trailer carrying stock. They slept in a rooftop tent on top of that vehicle. Mr and Mrs Ryan both gave evidence at trial.
[2] ts 156.
[3] ts 321.
4Riviera is a business that sells horse floats and trailers. The second, third and fourth defendants are directors of Riviera. At the time of the sale of the Gooseneck Trailer, Mr Trevor Kenyon, was trying to retire but oversaw the running of Riviera's business and assisted in the workshop at times. Mr Dale Gavenlock described himself as the manager of Riviera. At the relevant time Mr Gavenlock's wife, Kirsty Gavenlock, was responsible for advertising, bookkeeping, sales of standard horse floats. She was the first point of contact on the business mobile phone. All three of those directors gave evidence, although Mr Kenyon had no direct involvement in the sale of the Gooseneck Trailer.
5The parties adduced expert evidence in the form of reports and oral evidence. Mickeyblu called Mr Terry Southam as an expert. The defendants called Mr Rodney Style as an expert. Both experts prepared two reports which were tendered in evidence. Mr Southam's first report is dated 1 November 2021.[4] Mr Southam's second report is dated 23 November 2023.[5] Mr Style's first report is dated 18 August 2022.[6] Mr Style's second report is dated 19 January 2024.[7]
[4] Exhibit 118 Trial Bundle (TB) 730 - 759.
[5] Exhibit 120 TB 865 - 886.
[6] Exhibit 119 TB 760 - 864.
[7] Exhibit 150 TB 1199 - 1227.
6Objections to parts of both experts' reports were set out in schedules.[8] I did not make any rulings on the objections during the trial. Due to my findings, it is unnecessary for me to rule on each objection, particularly those made by the defendants. However, due to the extensive nature of the objections made to both of Mr Style's reports I have set out my rulings in relation to those objections in annexures to my reasons.[9] For present purposes, it is sufficient to say that for the most part I overruled the objections to material in Mr Style's reports. Many of the objections took issue with paragraphs in isolation when it was clear, on a fair reading of his reports, that those paragraphs could not be read in isolation and Mr Style had set out reasons for his opinions in other paragraphs or sections. Apart from Mickeyblu's objections to material in Mr Style's reports, in these reasons I only rule on other objections where necessary.
[8] On behalf of the defendants two undated schedules both called 'Defendants' Schedule of Objections to Expert Evidence' were filed on 22 January 2024. One relates to Mr Southam's report dated 1 November 2021 and the other to Mr Southam's report dated 23 November 2023. Those schedules collate the defendants' objections and Mickeyblu's responses to them. On behalf of the defendants a document dated 19 January 2024 called 'Defendants' Responses to the Plaintiff's Objections to Expert Evidence' was filed on 23 January 2024. It contains Mickeyblu's objections to Mr Style's report dated 18 August 2022 and the defendants' responses. On behalf of Mickeyblu a document dated 6 December called 'Plaintiff's Objections to Defendants' Expert Evidence' was filed on 23 January 2024. It contains Mickeyblu's objections to Mr Style's report received 19 January 2024 and the defendants' responses to the objections.
[9] Columns one to five of the Annexures have been extracted from the filed schedules. The only alteration made has been to replace the automatic numbers with hard numbers so objections which were conceded could be removed from the tables without affecting the numbering. Any typographical errors in the extracted columns have not been identified or corrected.
7Mickeyblu also called Mr Clinton Jue Sue as a witness. He is a mechanic who inspected the Gooseneck Trailer in Queensland. He was not called as an expert witness.[10]
[10] ts 519, 522.
8The defendants also called Mrs Carol Kenyon, Mr Mark Baxter, Mr Alexander Chambers and Mr Ke Ying Zhang. Mrs Kenyon is also a director of Riviera. However, her evidence was of limited relevance. Mr Baxter weighed the Gooseneck Trailer on 22 January 2022. Mr Chambers assisted Riviera to obtain approval to manufacture the model of gooseneck trailer of which the Gooseneck Trailer is a type. Mr Zhang is an employee of the company that manufactured the frame of the Gooseneck Trailer.
Gooseneck trailer design & technical terms
9A gooseneck trailer is so called because of its shape and design. The shape of the trailer is rectangular, except the front part is shorter in height than the bulk of it and starts about halfway up from the main part of the trailer. Hence it can be described as having a 'neck'. Due to the design of a gooseneck trailer, it is coupled to a ball in the tray of a tow vehicle. It differs from the type of small trailers in common use which attach to a tow ball on the rear of a tow vehicle. As I understand it, 'coupling' is the word used to describe the components that together make up the method of attaching a trailer to a tow vehicle. In the case of the Gooseneck Trailer, it had a hitch, comprised of a number of components, which attached to a tow ball in the rear of the tow vehicle.[11] During the course of the trial, the Gooseneck Trailer's coupling was not consistently described.
[11] Exhibit 119 pars 59 - 70 TB 768 - 769.
10In order to understand some of the issues I am required to determine, it is necessary to have some basic understanding of the mass of a trailer. During the trial, witnesses, including those who were not called as expert witnesses, used various terms to describe different ways the mass of a trailer could be calculated or measured.
11The terms set out in [13] - [15] below are taken from Mr Style's first report.[12] They are TAFE training definitions. No objection was taken to those definitions by Mickeyblu. Mr Southam's first report contains only one definition.[13] Attached to Mr Southam's second report are the pages of definitions from a Western Australian Department of Transport publication called 'Safe Towing Guide' (the Safe Towing Guide).[14]
[12] Exhibit 119 TB 766 - 767.
[13] Exhibit 118 TB 732.
[14] Exhibit 120 TB 871 - 873. The entirety of the Safe Towing Guide is Exhibit 154.
12To a large extent the definitions in the Safe Towing Guide are the same or similar to those in Mr Style's first report. However, some of them are less technical and do not refer to establishing compliance with Australian Design Rules (ADR). Establishing compliance with ADR is a matter of some significance in this trial. The less technical nature of some of the definitions in the Safe Towing Guide may be explicable because it is designed for use by members of the public who are towing a trailer of the type to which it applies,[15] rather than for use by those who are required to establish compliance with ADR. It is for that reason I prefer the definitions in Mr Style's first report.
[15] Exhibit 154. The Safe Towing Guide is not intended for use with trailers of more than 4,500 kg (TB 1274), which is a matter of some significance when it comes to considering the use Mr Southam made of an aspect of it and his resulting opinion, which will be discussed at [279] - [280] below.
13The aggregate trailer mass (ATM) of any trailer is the total weight of a laden trailer carrying the maximum load recommended by the manufacturer, including any mass imposed onto the drawing vehicle when the combination vehicle is resting on a horizontal plane.[16] I understand a drawing vehicle to be a towing vehicle and a combination vehicle to be the towing vehicle coupled to a trailer.[17] In his first report, Mr Southam said the definition of ATM is the combined weight of the trailer and its load.[18] The origin of that definition is not stated. That definition does not specify that the trailer is to be fully laden.
[16] Exhibit 119 par 33 TB 766.
[17] My understanding comes from the definition of 'gross combination mass' in Exhibit 119 par 35 TB 766.
[18] Exhibit 118 TB 732.
14The gross trailer mass (GTM) of a trailer is the mass transmitted to the ground by the axle or axles of a trailer, when coupled to a drawing vehicle, and carrying its maximum load approximately uniformly distributed over the load bearing area, and at which compliance with the appropriate ADR has been or can be established.[19]
[19] Exhibit 119 par 34 TB 766.
15The unladen trailer mass or tare is the mass transmitted to the ground by the axle or axles of the trailer when coupled to a drawing vehicle, in its normal unladen condition, and at which compliance with the appropriate ADR has been or can be established.[20] While not part of the definition in Mr Style's first report, there was agreement amongst the experts that the tare should include items fixed to a trailer but does not include any personal items or goods carried in a trailer. Those items are part of the payload. Most of the evidence given on the topic of water tanks was that they should be empty when determining the tare of a trailer.[21]
[20] Exhibit 119 par 31 TB 766.
[21] ts 567 - 568 (Mr Gavenlock); ts 815, 820 (Mr Baxter); ts 959 (Mr Southam); Exhibit 119 par 252 TB 804 (Mr Style). However, in Mr Jue Sue's report he seems to suggest they should be full (Exhibit 55 TB 436). There was an objection to the paragraph of Mr Style's report referred to. However, the objection falls away because Mr Jue Sue's report is in evidence.
16The terms 'ball weight' or 'tow ball mass' was used by a number of witnesses who gave evidence, including witnesses who were not experts. Mr Style drew a distinction between the use of the terms 'ball mass' and 'hitch mass'.[22] He said the term 'ball mass' is for 'pig trailers'[23] and 'dog trailers' and 'hitch mass' is for 'semi-trailers'.[24] Based on Mr Style's opinion, the correct term in relation to the Gooseneck Trailer is 'hitch mass'. However, given that was not the term used by most witnesses I will use the terms 'hitch mass', 'ball mass' or 'ball weight' to mean the same things in these reasons.
[22] Exhibit 150 TB 1224 para 868; ts 1219 - 1220.
[23] This is incorrectly transcribed as 'big trailers' (ts 1219).
[24] ts 1219.
17In his first report Mr Style's set out a number of different definitions, or ways of calculating, ball or hitch mass, which he has extracted from Vehicle Standards Bulletin 1.[25] Having regard to the definitions in Mr Style's report and the way the terms were used by witnesses in this trial, it emerges that there is a distinction to be drawn between the maximum designed allowable hitch mass and actual mass measured at the coupling. The maximum designed allowable hitch mass can be specified as a percentage of ATM. The actual measured mass at the coupling can be variable depending on whether the trailer is carrying any load, the weight of any load and how the load is distributed in the trailer. Further, while the hitch or ball mass can be calculated by subtracting GTM from ATM, that will calculate the hitch mass when the trailer is fully loaded.
[25] Exhibit 119 pars 38 - 58 TB 767 - 768.
18The Safe Towing Guide defines the 'tow hitch download' as 'The weight imposed on the tow vehicle's tow hitch (ball or other type) by the coupling of the trailer onto the towbar.'[26] That definition appears to only be referring to the actual measured mass, which may or may not be the designed allowable hitch download.
[26] Exhibit 154 TB 1275.
19As will be seen below, there are issues in this matter relating to the Gooseneck Trailer's hitch or ball mass as a contractual term, as a matter of design and whether there was non-compliance with any ADR.
20The term 'payload' also needs to be understood. This term is defined in the Safe Towing Guide to mean 'the allowable load carrying capacity' which is worked out by deducting the trailer tare from the ATM.[27] Those witnesses who used the term 'payload' when giving evidence used it consistently with the definition in the Safe Towing Guide.
[27] Exhibit 154 TB 1276.
21The following emerges from some of the above definitions:
(a)If trying to establish the GTM of a trailer for the purposes of establishing compliance with ADR, the trailer must be coupled to a towing vehicle and it must be carrying its maximum load. There was no evidence from any witness as to how this could be done in a practical way.[28]
(b)Similarly, if trying to establish the tare of a trailer for the purposes of establishing compliance with ADR, the trailer must be coupled to a drawing vehicle and be unladen. There was no evidence from any witness as to how this could be done in a practical way.
(c)The ATM is also determined with the trailer carrying its maximum load including any mass imposed onto the drawing vehicle when the combination vehicle is resting on a horizontal plane. While it is readily apparent how a manufacturer can specify a theoretical ATM, there was no evidence from any witness as to how ATM can be measured in a practical way.
[28] In cross-examination it was suggested to Mr Style that the only way to determine whether the Gooseneck Trailer had been built with a 7 tonne ATM, 6 tonne GTM and 1 tonne hitch mass was to weigh it after it was built (ts 1261). He initially agreed but queried if he was being asked about when it was at the factory (ts 1261 - 1262). He then did not agree with the proposition that had been put to him (ts 1261). He said that was not necessarily correct (ts 1261). He was not asked to expand on his answer.
22There is no dispute that the ATM of the Gooseneck Trailer is 7 tonnes.[29]
[29] Exhibit 2 TB 22. This will be discussed in more detail below under the heading '6. Hitch or tow ball mass compliance with approval'.
23Terms were not always used consistently by witnesses or in exhibits. Also, at times terms were used in a way that did not make it clear whether the term was being used in its true technical sense.
2. Causes of action
24At the start of the trial Mickeyblu abandoned three of the six causes of action pleaded in the Statement of Claim. The remaining causes of action are a breach of s 54 of the Australian Consumer Law (ACL), which is Schedule 2 of the Competition and Consumer Law Act 2010 (Cth), a breach of s 55 of the ACL, misleading or deceptive conduct in breach of s 18 of the ACL and breach of contract.
25It is fair to say, the Statement of Claim is, to some degree, convoluted. However, I have attempted to distil from it the thrust of each of the causes of action in order to identify the real issues in dispute in this matter. As a consequence, in [26] - [48] below I have not discussed the causes of action in the order in which they appear in the Statement of Claim.
Breach of contract causes of action
26The agreement for the purchase of the Gooseneck Trailer is said to be partly written, partly oral and partly by conduct. There are two breach of contract causes of action, which are expressed in the alternative in the Statement of Claim, although the loss and damage is pleaded to be in the alternative or conjunctively.[30]
[30] See Statement of Claim par 64.
The first breach of contract claim
27The first breach of contract cause of action is based on a breach of express terms of the agreement.[31] On a strict reading of the Statement of Claim, only one express term is alleged to have been breached (that referred to in [29(c)] below) because paragraph 62 of the Statement of Claim, which pleads this breach of contract, only refers to paragraph 18 of the Statement of Claim. However, that is inconsistent with the way this claim was dealt with in the document called 'Plaintiff's Outline of Closing Submissions' dated 1 February 2024.[32] On the other hand, in the document called 'Defendants' Closing Submissions' dated 1 February 2024, this point is taken.[33]
[31] See Statement of Claim par 62.
[32] See pars 79 - 82.
[33] See pars 241 - 246.
28My preliminary view is that a drafting error exists because when the Statement of Claim was amended to plead further express terms in paragraphs 18A and 18B, there was no consequential amendment to paragraph 62 of the Statement of Claim. For the purposes of deciding the issues in this matter, I have treated the breach of express terms of the contract cause of action to include the express terms referred to in paragraphs 18A and 18B of the Statement of Claim. As will become apparent, the approach I have taken is immaterial to the outcome of this matter. Had it been otherwise, I would have heard the parties in relation to this issue.
29Therefore, the express terms of the contract that are said to have been breached are:
(a)the Gooseneck Trailer would be capable of towing 3 to 3.5 tonnes by way of Mickeyblu's trading stock and materials;
(b)alternatively, the Gooseneck Trailer would be capable of towing 2,400 kg, being the approximate weight of three horses, which is what the trailer was advertised as being capable of towing by use of the words 'Three-Berth Horse Float';
(c)the Gooseneck Trailer would be capable of towing 6,500 kg on the axles and 750 kg on the tow ball; and
(d)the weight the tow vehicle would be subjected to through the tow ball was 750 kg, consistent with the tow ball weight representation.
30The express term of the agreement set out in [29(c)] appears in the final form of the tax invoice that was sent to Mickeyblu's email address from an email address associated with Riviera's accounting software on 2 November 2020.[34] This term, along with another written statement, are collectively referred to as 'The Third Weight Representation'. However, this term is also pleaded to have been an oral representation, along with other representations. Collectively, they are referred to as the 'Second Weight Representation' in the Statement of Claim.[35]
[34] Exhibit 23 TB 255 - 257.
[35] See footnote 51 below for a discussion about one aspect of the Second Weight Representation.
31The express terms of the agreement set out in [29(a)] and [29(b)] do not appear in any written document that is pleaded to be part of the agreement. They, along with another representation that is not material to the breach of contract claim, namely the Gooseneck Trailer could tow 6,500 kg on the axles and 500 kg on the ball, are said to collectively be the 'First Weight Representation' in the Statement of Claim.[36] However, there is no reference to any advertisement having been mentioned in the oral representation relating to three horses. These express terms are said to arise out of a conversation that took place on 30 October 2020 (the 30 October Conversation).
[36] Paragraph 7.
32The express term of the agreement set out in [29(d)] does not appear in that precise form in any written document that is pleaded to be part of the agreement. However, it is said to be a representation made by virtue of the First, Second and Third Weight Representations. It is not clear how this representation could have been made by virtue of the First Weight Representation, which alleges the Gavenlocks confirmed something that directly contradicts it, namely the Gooseneck Trailer could tow 6,000 kg on the axles and 500 kg on the ball.[37] In any event, this term is essentially the same as the term set out at [29(c)] but is expressed another way.
[37] See Statement of Claim par 7.2.
The second breach of contract claim
33The second breach of contract cause of action relies upon terms being implied into the agreement, which are, in effect, terms that are implied into the agreement by virtue of the ACL.[38]
[38] Statement of Claim par 63. This claim seeks to imply terms that are pleaded in paragraph 21 of the Statement of Claim by pleading terms set out in 22 of the Statement of Claim are implied. Paragraph 22 pleads the terms in paragraph 21 are implied (see ts 1345).
34Paragraph 22 of the Statement of Claim pleads that the same terms implied by virtue of the ACL are implied into the agreement on the basis that they meet the criteria set out in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[39] It is difficult to see how this claim adds anything.
[39] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.
35In so far as the terms sought to be implied are not dependant on a disclosed purpose or a representation, they are covered by s 54 of the ACL. To the extent they are based on a disclosed purpose or representation, it would be impossible to conclude the terms are necessary to give business efficacy to the contract or are so obvious they go without saying. It is only because such terms were allegedly said or discussed that there could be any basis for implying them into the agreement. Therefore, in my view, this cause of action adds nothing that is not covered by either the first breach of contract claim or the misleading or deceptive conduct claim.
36In her closing address, counsel for Mickeyblu was unable to articulate a basis upon which this claim could succeed if the claims under the ACL failed.[40] However, she submitted the measure of damages for breach of contract could be argued to be slightly different.[41]
[40] ts 1345 - 1346.
[41] ts 1396 - 1397.
37In her closing address, counsel for Mickeyblu contended that any variation to the contract that arose from a conversation in December lacked consideration. That submission was not fully developed. However, I understood it as an attempt to suggest that Mickeyblu could not be bound by any change to the agreement as a result of a conversation in December 2020.[42] If it was a term of the contract that a dual axle gooseneck trailer with a particular weight distribution was to be supplied and as a result of the conversation in December it was agreed that a triple axle gooseneck trailer would be supplied (with the same or a different weight distribution) an issue would arise as to whether there was a new contract or a change in a contractual term. The issue of consideration would then require close examination. However, given my ultimate findings as to the relevant terms of the agreement, this is not an issue I have to decide.
[42] This submission struck me as counsel for Mickeyblu attempting to be clever. On the one hand Mickeyblu relies upon the 29 December conversation for a further representation and on the other hand urges me to find, should I not accept Mr Ryan's version of that conversation, there was no variation due to a lack of consideration.
Breach of Australian Consumer Law
38Mickeyblu claims s 54 of the ACL has been breached.[43] Section 54 of the ACL provides that if a person supplies goods in trade or commerce, other than by auction, there is a guarantee that the goods are of acceptable quality. Pursuant to s 54(2) of the ACL, goods are of acceptable quality if they are (a) fit for all purposes for which goods of that kind are commonly supplied, (b) acceptable in appearance and finish, (c) free from defects, (d) safe and (e) durable as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). The pleaded defects are alleged to have made the Gooseneck Trailer unsafe, not durable or lawfully capable of being 'driven' [sic] on Australian roads.
[43] Statement of Claim par 32. I allowed an amendment the during the course of the trial to the ACL section number originally pleaded in this paragraph of the Statement of Claim (ts 1173).
39The relevant matters pleaded for the purpose of s 54(3) of the ACL are the purchase price of the Gooseneck Trailer, its nature, the weight representations made by the defendants and the requirement the Gooseneck Trailer meet specified laws or standards. There is some circularity to the pleaded case because a relevant act of parliament the Gooseneck Trailer is said not to comply with is the ACL, specifically s 54 and s 55.[44] The only other relevant instrument specified in the pleadings are ADR. The other acts or standards specified in the Statement of Claim are not relevant because they were not relied upon as part of Mickeyblu's case at trial.
[44] Statement of Claim pars 33.4 and 21.3.
40The representations relied upon by Mickeyblu in furtherance of the cause of action pursuant to s 54 of the ACL are the First, Second and Third Weight Representations.
41Mickeyblu claims s 55 of the ACL has been breached.[45] Section 55 of the ACL provides that if a person supplies in trade or commerce goods, to a consumer other than by auction, there is a guarantee the goods are reasonably fit for any disclosed purpose which the supplier represents they are reasonably fit for.
[45] Statement of Claim par 36.
42The disclosed purposes relied upon by Mickeyblu occurred during the 30 October Conversation and are pleaded to be:
(a)the Gooseneck Trailer would be used by it to transport trading stock to various exhibitions for the purpose of display and purchase;
(b)the Gooseneck Trailer would be loaded to, and must be capable, of supporting a load of between 3 to 3.5 tonnes; and
(c)the Gooseneck Trailer would be used by the Ryans as their living quarters when it was not used for the purposes set out in [41(a)] and [41(b)].[46]
[46] Contrary to the pleaded case, the Ryans intended to use the Gooseneck Trailer as their living quarters at the same time it was being used to transport trading stock.
43The Gooseneck Trailer is pleaded to be unsuitable for the disclosed purposes because of the pleaded defects and its inability to tow 3 to 3.5 tonnes or 2,400 kg.[47]
[47] Statement of Claim pars 35, 35A and 35B.
44The contraventions of s 54 and s 55 of the ACL are pleaded to be major failures in that a reasonable consumer fully acquainted with the nature and extent of the defects would not have purchased the Gooseneck Trailer or that the defects made the Gooseneck Trailer substantially unfit for purposes made known.[48] It was pleaded the defects cannot be remedied to be made fit for the disclosed purposes and the breaches of s 54 and s 55 of the ACL are incapable of remedy.[49] Consequently, s 259(3)(a) of the ACL, entitled Mickeyblu to notify Riviera it rejected the goods along with the grounds for rejection. Pursuant to s 263(4)(a) of the ACL Mickeyblu sought a refund of the purchase price.[50]
[48] Statement of Claim par 37.
[49] Statement of Claim pars 37.2.2 and 38.
[50] Exhibit 79 (TB 554 - 557) is an email attaching the formal rejection notice and election for a refund of the purchase price.
Misleading or deceptive conduct cause of action
45The misleading or deceptive conduct cause of action relies upon the First, Second and Third Weight Representations in addition to a representation claimed to have been made by Mr Gavenlock to Mr Ryan in a conversation that took place on 29 December 2020. Mr Gavenlock is alleged to have said that Riviera was taking steps, by the engagement of an engineer, to ensure the 'design modification'[51] would enable the Gooseneck Trailer to meet the disclosed needs of Mickeyblu.
[51] In paragraph 10.1 of the Statement of Claim the 'design modification' is pleaded to be a change from a dual axle design to a triple axle design, but it is pleaded to have been something Mr Gavenlock informed Mr Ryan of between 31 October 2020 and 1 November 2020 (Statement of Claim pars 9 and 10). There was no evidence that any conferral about 'design modification', by email or otherwise, took place during that period. There is no evidence that further discussion about the axle design took place after the 30 October Conversation and before the final version of invoice 194 was issued and the deposit was paid. Further, there was no evidence the design modification was discussed by email. A conversation about a two axle design not being possible took place in December. This will be dealt with at [149] - [156] below.
46Clearly, any conversation that took place in December 2020, could not have caused Mickeyblu to enter into the agreement, since the agreement was entered into much earlier. The deposit was paid on 2 November 2020.[52] The balance of the purchase price was by way of three payments on 24, 25 and 26 March 2021.[53] The significance of the conversation that is alleged to have taken place on 29 December will be considered below at [149] - [156].
[52] Exhibit 6 TB 143 - 144.
[53] Statement of Claim par 25, which was admitted by all defendants.
47Additionally, or alternatively, the misleading or deceptive cause of action is based on Mickeyblu towing the Gooseneck Trailer with its GMC 2500 vehicle (the GMC) in reliance upon the representation that the weight that would be transmitted to the tow vehicle would be 750 kg in circumstances where the defendants knew or ought to have known Mickeyblu intended to use the GMC to tow the Gooseneck Trailer.
48From the Statement of Claim, it is not entirely clear whether implicit in this aspect of the misleading or deceptive cause of action is the notion that one of the Gavenlocks held out that the GMC was suitable for towing the Gooseneck Trailer. However, if that is not implicit, it is not clear what relevance any knowledge the defendants are alleged to have had about the GMC being the intended tow vehicle has to this claim. Nevertheless, this is an issue that at is at least potentially relevant.
Overlap in causes of action
49As can be seen from [26] - [48] above, there is much overlap between the causes of action. For those causes of action which rely on representations having been made to succeed, Mickeyblu must prove that one or more representations were made by Mr or Mrs Gavenlock on behalf of Riviera. For those causes of action which rely on a guarantee as to acceptable quality to succeed, Mickeyblu must prove that the Gooseneck Trailer had one or more inherent defects of such a nature that the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the defect or defects, or that the Gooseneck Trailer was substantially unfit for a disclosed purpose and could not be remedied easily within a reasonable time or the Gooseneck Trailer was unsafe.
3. The issues
50Resolution of the issues set out below is necessary to determine whether any of the causes of action can succeed.
51Whether during the 30 October Conversation either of the Gavenlocks, made any or all the following statements or confirmed any of the following:
(a)the Gooseneck Trailer would be capable of towing 3 to 3.5 tonnes;
(b)the Gooseneck Trailer could tow 'three horses' at 800 kg each; and
(c)the GMC was capable of towing the Gooseneck Trailer.
52Whether it was a term of the contract that the weight distribution would be 6.5 tonnes on the axles and approximately 750 kg on the tow ball.
53Whether Mickeyblu towed the Gooseneck Trailer using the GMC in reliance on the representation that the weight distribution would be 6.5 tonnes on the axles and approximately 750 kg on the tow ball.
54Whether the Gooseneck Trailer did not comply with any identified or relied upon ADR.
55Whether any defects in the Gooseneck Trailer were attributable to its design or manufacture. If so, did any failure to comply with a guarantee by reason of the defect or those defects amount to, either individually or collectively, a 'major failure' within the meaning of the ACL.
56Whether the Gooseneck Trailer was capable of being used as living quarters by the Ryans.
4. The law
Legal principles applicable to the causes of action
57The resolution of the real issues in this matter turn on factual findings, rather than any interpretation of legal principles.[54] Therefore, it is unnecessary for me to set out the law of contract or law relating the application of the relevant provisions of the ACL, including misleading or deceptive conduct.
[54] That this is the case is readily apparent from the Plaintiff's Outline of Opening Submissions dated 1 December 2023, the Plaintiff's Outline of Closing Submissions dated 1 February 2024, the Defendants' Outline of Submissions dated 1 December 2023 and the Defendants' Closing Submissions dated 1 February 2024, which reveal the lack of dispute in the applicable legal principles.
Onus & standard
58Before turning to the resolution of the issues, it is important that I say something about onus and standard. The onus is on Mickeyblu to prove one or more of the causes of action and the standard is on the balance of probabilities.
59However, in circumstances where proof of oral representations or oral terms of a contract is required the words of McLelland CJ in Watson v Foxman are apposite:[55]
Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, 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.
[55] Watson v Foxman (1995) 49 NSWLR 315, 318 - 319.
60As was explained by Vaughan J in Girgis v Poliwka [No 6]:[56]
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.
[56] Girgis v Poliwka [No 6] [2019] WASC 230 [119].
61In reaching conclusions about whether the oral representations or the oral terms of the agreement have been established, I have borne the above comments in mind.
5. Representations & contractual terms
Significance of 30 October 2020 Conversation
62There is no dispute that the 30 October Conversation took place. It is critical to Mickeyblu's action against Riviera and the other defendants for a number of reasons. First, it is during that conversation that Mr Ryan is said to have informed either of the Gavenlocks that any trailer must be capable of towing and being loaded with between 3 to 3.5 tonnes. It is the pleaded case of Mickeyblu that Mr Ryan said that to Mrs Gavenlock, rather than to Mr Gavenlock.[57] However, I have not considered this issue so narrowly. Secondly, the first weight representations were said to have been made during it. Thirdly, what was said about the axle design and weight distribution as between the axles and ball during the 30 October Conversation is relevant to the terms of the agreement, understanding subsequent weight representations that are said to have been made on behalf of Riviera in writing and the subsequent conversation said to have taken place in December.
[57] Statement of Claim par 6.
63I do not intend to set out the entirety of the evidence of each witness who was a party to at least some part of the 30 October Conversation. However, it will be necessary to refer to the conversation in some detail.
64The telephone call was made by one of the Ryans to the business mobile phone number of Riviera. The telephone call was answered by Mrs Gavenlock. At some point during the telephone call, Mr Gavenlock took part in the conversation. Apart from those facts about the telephone call, what was said during the conversation, by whom and who participated in the conversation at various times are in dispute.
65In cross-examination Mrs Ryan's recollection was that the call to Riviera was made by Mr Ryan and she did not think they were in the vehicle or driving and Mr Ryan was on speaker phone.[58] She said they were camping and were outside when he made the call.[59] I accept Mrs Ryan's evidence about those circumstances because her memory seemed clear. However, it does not follow that anything she said during the conversation was necessarily heard, or even capable of being heard, by whoever was on the other end of the phone call.
[58] ts 432.
[59] ts 432.
Mrs Gavenlock's involvement in the 30 October Conversation
66Mrs Gavenlock gave evidence in a straightforward manner. Mrs Gavenlock's evidence was that she was the first point of contact for customers who called the Riviera business mobile phone.
67Her recollection as to her involvement in the 30 October Conversation was that she received a telephone call from Mr Ryan on the business mobile phone. She specifically recalled speaking to him via Bluetooth whilst she was on the way home in her vehicle.[60] Her recollection was that Mr Ryan said he had seen her advertisement on Facebook for a gooseneck trailer.[61] She said she established he was talking about the 7 tonne ATM gooseneck trailer with air brakes. During the time she was speaking to Mr Ryan, she heard a lady's voice saying things to him, which he was repeating.[62] She described that voice as being very far back.[63] Mr Ryan mentioned he was looking for something big in which they could live and travel around Australia and go to different shows and they would love some changes to the trailer.[64] She told Mr Ryan she would need to get Dale [Mr Gavenlock] to call him back but there was general 'chitchat' between them until she arrived home. She then handed the phone to Mr Gavenlock as he was walking out of the workshop.[65]
[60] ts 743.
[61] ts 743.
[62] ts 744.
[63] ts 750.
[64] ts 744.
[65] ts 744 - 745.
68Mrs Gavenlock's evidence was that she had no further involvement in the 30 October Conversation after she handed the phone to Mr Gavenlock. She was firm in cross‑examination that she was not part of the entire conversation.[66]
[66] ts 752 - 753, 754.
69I accept her evidence in that regard, irrespective of whether her recollection of the entirety of the part of the conversation she was involved in is accurate, because I accept that it was not part of Mrs Gavenlock's role to be involved in the sale of custom built trailers, of which gooseneck trailers are one type, sold by Riviera. Whilst Mrs Gavenlock had knowledge of the standard range of trailers Riviera sold, it was patently obvious from her answers to some questions that she lacked knowledge about the technical aspects of the floats and trailers sold by Riviera including the standard ones. Therefore, as a matter of common sense, Mrs Gavenlock would not have had any reason to remain part of a conversation to which she was unable to meaningfully contribute.
70During the part of the 30 October Conversation to which she was a party, I am not satisfied that Mrs Gavenlock made any statements which are alleged to have been made that form any part of the weight representations or said anything that amounted to confirmation of anything to do with what could or could not be offered in a gooseneck trailer, or anything to do with the GMC. Further, I am not satisfied that either of the Ryans gave Mrs Gavenlock any detail about Mickeyblu's requirements, including the weight of stock to be carried.
The 30 October Conversation - The YouTube Video
71Turning to the Ryans' recollection of the 30 October Conversation, Mr Ryan claimed that after Mrs Gavenlock answered the phone and they exchanged pleasantries he immediately said they were looking at a gooseneck to buy because had purchased the GMC and believed it was the vehicle for the gooseneck. Mrs Ryan's evidence does not support Mr Ryan's version of the start of the conversation. Mrs Ryan's evidence was that after Mr Ryan introduced himself and explained what he did for a living, he mentioned a Riviera gooseneck trailer they had seen on the internet in which they were interested.[67]
[67] ts 332.
72It is not in dispute that Mr and Mrs Ryan viewed a YouTube video of a 7 tonne gooseneck trailer that had been built by Riviera (the YouTube Video).[68] The trailer in it was located in Geraldton. However, there are differences in the evidence as to when they viewed it.
[68] Exhibit 1.
73The recollection of both Ryans was they had not seen the YouTube Video before the start of the 30 October Conversation, rather Mrs Gavenlock sent them the link to the YouTube Video and told them it was available for purchase. Mrs Gavenlock's recollection was that the Ryans had already viewed the YouTube Video when she spoke to them.
74Mr Gavenlock's evidence was that the gooseneck trailer in the YouTube Video was not available for purchase because it had been built for a man named Peter Burton. In cross‑examination Mrs Gavenlock did not accept that she had told the Ryans they had a 7 tonne ATM trailer available in Geraldton. I accept the evidence of both Mr and Mrs Gavenlock in this regard.
75There is some documentary evidence that shows the link to the YouTube Video was sent from a generic Riviera email address to Mickeyblu's email address. A text message containing the Mickeyblu email address was sent by Mrs Ryan to Riviera's business mobile on 30 October 2020 at 10:27 am.[69] An email was sent from the generic Riviera email address at 10:48 am to the Mickeyblu email address on 30 October 2020, which contained a hyperlink to a YouTube video.[70] However, that email also referred to the sender preparing a quote and to an attached drawing.[71] Mrs Gavenlock's evidence was she sent the email at Mr Gavenlock's request.[72] She said she did not send the email before she passed the phone to Mr Gavenlock. I accept her evidence in that regard. The content of the email itself is inconsistent with it having been sent before Mr Ryan had a conversation with Mr Gavenlock and the discussion had reached the point where Mr Ryan had expressed his interest in a potential purchase.
[69] Exhibit 6 TB 141. The copy of the message in the Trial Bundle is blurry. I have taken the time off a clearer copy of the messages that was provided during the trial.
[70] Exhibit 7 TB 167. The same email appears in Exhibit 8 TB 196 as part of an email chain. That version suggests the time it was sent was 12:48 pm. The two hour discrepancy would appear to be because the Ryans were in the Eastern States on 30 October 2020.
[71] Exhibit 7 TB 167 - 168.
[72] ts 752.
76Mr Ryan's evidence was that he must have viewed the YouTube Video 20 times.[73] Whilst the YouTube Video is relatively short (approximately one minute and 40 seconds), I find it was improbable that Mr Ryan watched it anywhere near 20 times whilst carrying on a telephone conversation with either of the Gavenlocks. Alternatively, if he did watch the YouTube Video 20 times and was focusing on it whilst having a conversation, it is difficult to accept he was paying sufficient attention to what was being said by any other party to the conversation.
[73] ts 163.
77I have allowed for the possibility that Mr Ryan may have been exaggerating about the number of times he watched the YouTube Video during the telephone call. Therefore, I am satisfied that it is possible he watched it during the 30 October Conversation. What was readily apparent from his evidence was that immediately upon seeing the YouTube Video Mr Ryan decided he wanted a trailer like the one shown in it. I am satisfied, based on the evidence that Mr Ryan gave on this topic, he considered Mickeyblu owning a gooseneck trailer like the one he had seen in the YouTube Video would be a status symbol, which would demonstrate that he was successful.[74] Mr Ryan accepted that he probably told Mr Gavenlock that he wanted the 'Taj Mahal' of trailers.[75] Mrs Ryan recalled Mr Ryan saying he wanted the 'Taj Mahal'.[76] Having regard to Mr Ryan's desire for a trailer like the one in the YouTube Video and the stage at which the discussions had seemingly reached during the 30 October Conversation by its end, I am satisfied that at some point before it ended the Ryans had seen the YouTube Video.
[74] ts 163, 169.
[75] ts 217.
[76] ts 435.
78It follows, therefore, that I am satisfied, on balance, that the Ryans must have seen the YouTube Video prior to receiving the email with a link to it. That is not to say I am satisfied they had seen it before Mrs Gavenlock answered the telephone call. It is entirely possible they viewed the YouTube Video before they were sent a link to it by Mrs Gavenlock during the course of the 30 October Conversation. However, I also cannot discount the possibility that the Ryans had seen the YouTube Video before the start of the 30 October Conversation.
79Nothing much turns on whether the Ryans saw the YouTube Video before or after either of them first called Riviera because the contract was entered into after 30 October. However, the inconsistencies in the evidence about this topic starkly illustrate the vagaries and fallibility of human memory.
80I will shortly turn to aspects of the 30 October Conversation that relate specifically to the causes of action. Before doing that I will say something about Mr and Mrs Ryan's evidence generally.
General observations about Mr Ryan's evidence
81When giving evidence Mr Ryan accepted that his memory for detail was not good. At one point he said, of the 30 October Conversation, he could not remember anything word-for-word.[77] At times it was unclear whether Mr Ryan was giving evidence about his memory of what was said during a conversation, what he thought at the relevant time, what he thought at some other time or even what he thought when he was giving evidence. Often it was hard to follow what Mr Ryan said. He had a tendency to editorialise or comment when giving evidence. Also, he often did not answer the questions he was asked in both evidence‑in‑chief and cross‑examination. Instead, he volunteered information or gave self-serving responses. All of these features of his evidence are factors I have taken into account in deciding to reject critical aspects of Mr Ryan's version of the 30 October Conversation.
[77] ts 168.
General observations about Mrs Ryan's evidence
82Generally, I have significant reservations in accepting Mrs Ryan's account of the 30 October Conversation because I am not satisfied her evidence was reliable. Like Mr Ryan, but to a lesser extent, her account of that conversation contained commentary. Also, there were a number of inconsistencies in her evidence about the sequence of what was said and at times it did not marry up with the objective evidence. For example, her evidence was that she and Mr Ryan watched the YouTube Video after she received the email from Riviera with the link to it and that Mr Gavenlock joined the conversation when they were watching the YouTube Video. That account is inconsistent with the email containing the link to the YouTube Video also referring to 'the price dale [sic] mentioned'.[78] If Mr Gavenlock had only joined the conversation after the link had been sent, then he could not have already quoted a price. Also, her account suggested Mr Gavenlock said very little during the conversation, which is difficult to accept. I am not suggesting that there was anything deliberate about these features of Mrs Ryan's evidence. I accept it is often difficult for anyone to recall precisely what was said during a conversation, and that is particularly so when years have passed since the conversation took place.
[78] Exhibit 7 TB 168.
Carrying capacity or payload of the Gooseneck Trailer
83Mickeyblu's pleaded case is that it was Mr Ryan who, during the 30 October Conversation, told Mrs Gavenlock that the Gooseneck Trailer must be capable of 'towing and being loaded' with 3,000 to 3,500 kg.[79]
[79] Statement of Claim par 6.4. Although this is what was alleged to have been said by Mr Ryan, the express term implied into the contract differs slightly (see [29(a)] above). No explanation for the discrepancy is apparent. It is not without some significance because, on the one hand, in the statement pleaded to have been made by Mr Ryan there is no reference to stock, but, on the other hand, the implied term refers to 'trading stock and materials'. However, this discrepancy is immaterial having regard to my findings.
84As I have already found at [70] above, I am not satisfied that any such statement was made by either of the Ryans to Mrs Gavenlock.
85Mr Ryan's evidence about what he said to Mr Gavenlock was hard to follow in so far as it contained a lot of commentary about what he thought.[80] I did not understand him to be saying he actually said many of those things to Mr Gavenlock.
[80] ts 163 - 164.
86At one point during the part of the conversation with Mrs Gavenlock, Mr Ryan said she told him she would put him onto Dale. Mr Ryan then said he introduced himself to Mr Gavenlock and said a number of things before telling Mr Gavenlock that he wanted one of the trailers he had seen in the video.[81] At that point he said Mr Gavenlock answered, 'no problem'.[82] He went on to suggest some other things Mr Gavenlock allegedly responded to by saying, 'no problem'. Mr Ryan said that was always Mr Gavenlock's response.[83] Mr Ryan suggested Mr Gavenlock said 'no problem' when he asked 'Will it go on me car?' and 'Well, will it carry this weight?'.[84] When Mickeyblu's counsel tried to clarify his answer about 'this weight' Mr Ryan responded, before she had finished the question, by saying, 'Well, the stock.'[85] From what was said and the manner in which it was said, I am unable to conclude that Mr Ryan was giving evidence about any actual conversation as opposed to providing commentary on the things he believed, at the time of giving evidence, that Mr Gavenlock had responded to by saying, 'no problem'. I have reached that conclusion because it defines belief that if Mr Ryan had asked those non‑specific questions, Mr Gavenlock responded, 'No problem.' when he would have lacked sufficient information in order to have genuinely known the request would not be a problem. Further, if Mr Ryan spoke during the 30 October Conversation in the manner he gave evidence about it, it would have been difficult for anyone to follow what he was asking. Therefore, a simple 'no problem' response seems unlikely without some clarification having been sought or questions asked by Mr Gavenlock.
[81] ts 163 - 164.
[82] ts 164.
[83] ts 164.
[84] ts 164.
[85] ts 164.
87In response to the specific question that followed, namely, 'What did you say to Mr Gavenlock?', Mr Ryan's answer started with 'I remember saying to them'.[86] It is not clear who he meant by 'them' because the evidence he had given moments before suggested he believed Mrs Gavenlock had put him onto Dale on the phone. In any event, Mr Ryan eventually said that he remembered saying, he needed at least 3 to 3.5 tonnes if he was spending that sort of dollars.[87] However, Mr Ryan did not articulate what he needed 3 to 3.5 tonnes of. If it was said, in the manner suggested by Mr Ryan, it could well have related to the ATM of a trailer. That answer was surrounded by much commentary about, it would seem, Mr Ryan's thought process. I am unable to conclude those were things he actually said, in part because of the way he gave the evidence, but also in part because of the conclusions I have come to at [105] - [113] below about Mr Ryan's knowledge of the weight of stock carried and also because I cannot be satisfied whether the commentary related to Mr Ryan's beliefs at the time of the 30 October Conversation or when he gave evidence.
[86] ts 164.
[87] ts 164.
88Mrs Ryan's evidence was that she told Mr Gavenlock the Gooseneck Trailer had to be able to carry 3 to 3.5 tonnes of stock.[88] Although she was not directly asked if Mr Ryan said anything about 3 to 3.5 tonnes, the impression from her evidence was that it was only her who mentioned something about the 3 to 3.5 tonnes. Mrs Ryan's evidence about what exactly was said about this was not entirely consistent. At times when she was recounting the content of the 30 October Conversation she did not make mention of her having said anything about the 3 to 3.5 tonnes of stock.[89]
[88] ts 334, 341 - 342, 406, 492.
[89] ts 340.
89Mrs Ryan's evidence was consistent in so far as it was her recollection she was the one who said the Gooseneck Trailer had to be able to carry 3 to 3.5 tonnes after Mr Ryan said it had to be dual axle. The way she recounted the conversation was her statement followed directly on from Mr Ryan's comment about the axles. At one point she seemed to be suggesting she said something about their current trailer being capable of carrying 2.5 tonnes.[90] However, at other times when mentioning this part of the 30 October Conversation she said nothing about that.[91] Further, when directly asked whether she said, 'Our current blue trailer already', she cut off the question and said, 'Mick said that in his phone conversation.'[92] When directly asked whether anything was said after she said it needed to carry 3 to 3.5 tonnes of stock, she answered 'No.'[93] That answer was problematic for this aspect of Mickeyblu's case. What followed immediately was this exchange:
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