Trade Practices Commission v Tepeda Pty Ltd

[1994] FCA 1090

/ 0 9 0 9 9

JUDGMENT NO. ....... . . . a. . . - . . . . m m . .

IN THE FEDERAL COURT OF AUSTRALIA	)
NEW SOUTH WALES DISTRICT REGISTRY	j NO G 537 of 1992
1
GENERAL DIVISION	j
)

BETWEEN:	T R A D E	P R A C T I C E S
COMMISSION

Applicant

- AND: TEPEDA PTY LTD trading as
METRO MOTOR MARKET

First Respondent

CHRIS KOUKOUTAS

Second Respondent

-:	Davies J.
Date:	28 October 1994
Sydney

CORRIGENDA

Amendment to the Reasons for Judgment given by Davies J. on the above

PRINCIPAL

Paae 3. 2nd vara. 7th line should read "Nevertheless, the sale price of

$13,990 ..!l not $13,099.

Minutes of Order - Page 2, 1st line, should read "Paras 11 & 12 - Sharee-Ann

Lussick, March 1992" "Paras 4 & 12 ..." /

Christos Mantziaris

Associate to Justice Davies

FEDERAL COUR~ 4 November 1994

IN THE FEDERAL COURT OF AUSTRALIA

1

NEW SOUTH WALES DISTRICT REGISTRY	) No G 537 of 1992
1
GENERAL DMSION	1
1

BETWEEN:	T R A D E	P R A C T I C E S
COMMISSION

Applicant

TEPEDA PTY LTD trading as

METRO MOTOR MARKET

First Respondent

m:  CHRIS KOUKOUTAS

Second Respondent

U:	Davies J.
Date:	28 October 1994
Place:	Sydney

MINUTES OF ORDER

THE COURT DECLARES THAT:

1. The first respondent, Tepeda Pty Ltd, infringed s.47(1) and (6) of the Trade Pract~ces Act 1974 (Cth) In the transactions specified m the statement of claim as follows:-

   -

   Para 6

Ya D~ng Fong and Zhi Rong Zhou, October 1991

Paras 7 & 8 - Woon Kh~ong Liau, March 1992

Paras 13 & 14 -	Davld Gerard Smlth, January 1992
Paras 17 & 18 -	Nicole Somerfield, July 1991
Paras 19 & 20 -	David Sean Finn, August 1991
Paras 11 & 12 -	Sharee-Ann Lussick, March 1992

2. The second respondent was kno~wngly concerned in and a party to each of the

above contraventlons by the first respondent.

THE COURT ORDERS THAT:

The question of costs be reserved.

NOTE:	Settlement and entry of orders 1s dealt w~th	in Order 36 of the Federal
Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1 1
h'EW SOUTH WALES DISTRICT REGISTRY	) No G 537 ot 1992
GENERAL DIVISION

,.

*,

BETWEEN.	T R A D E	P R A C T I C E S
COMMISSION

TEPEDA PTY LTD trading as

METRO MOTOR MARKET

F~rst Respondent

CHRlS KOUKOUTAS

Second Respondent

m:	Davles J.
Date:	28 October 1994
m:	Sydney

REASONS FOR JUDGMENT

In th~s proceed~ng, the Trade Pract~ces Cornrn~sslon seeks orders under s.76 of

the Trade Pract~ces Act 1974 (Cth) ("the TPA") that the respondent, Tepeda Pty Lirn~teci ("Tepeda"), whlch trades as Metro Motor Market. and its d~rector, Mr Chns

I(oukouta\. pay pecuniary penalt~eq	tor bleaches 01 s.47(1) and (6) of the m. An
Injunction under s.80 ot the	1s also sought

A number of separate tran\;lctions which are alleged to be breaches of s.47(1)

and ( h ) of	the TPA arc specified in the statement ot claim. One such transaction,
which occurred between Mr N.A. Jor~es	and Tepeda on or about 24 November 1991,
was alleged in paragraphs 15 and 16 ot the statement of claim. In a dec~slon	given on

27 May 1995, I declared that Tepeda had intririged s.37(1) and (6) ot the = A in the

transaction between it and Mr Joner and that thc second respondent had been

knowingly concerned in and a party to the contravention

Counsel for the parties are now agreed that thcre is n o materlal distinction

between that transaction , ~ n d	thc transactions with the lollowing persons alleged in thc
\tatenient ot claim:-

Para 0 -	Ya Ding Forig and Zhi Rong Zliou, 13 Oclober 1991
I'dras 7 Sr 8 -	Woon Kh~ong Liau, 8 March 1992
Paras 13 & 14 -	David Gerard Smith, 6 January 1992
Paras 17 & 18 -	Nlcole Somerheld, 2 July 1991

Paras 19 Sr 20 - Dav~d Sean Finn, 12 August 1991

Accordingly. I shall make declalationq in respect ot those transactions sim~lar

to the declarations made on 27 May 1994.

. .

I hc remaining transaction which is raiqed in paras I I and 12 occurred between

Tepeda and Sharee Ann Lussick In March 1092

On 17 March 1992, Mrs Lussick saw a newspaper advertisement ~nserted by

Tepeda tor second-hand, current model. Toyota Corolla vehicles. After telephoning

Tepeda. she drove to Tepeda's premises. She informed the salesman that she

required a trade-in for her car and was lookrng to pay a changeover price of $9,500. Mrq Lussick took one of the Corollas for n test drive and informed a salesman that

$he liked the car but wanted one of a ditterent colour. Mrs L U S S I C ~ was informed that

there \\as a blue Corolla available in Tepeda's Granville yard and that Tepeda would

be prepared to give her $3,000 tor the trade-in.

Because Tepeda's sale was to end that day, 17 March, Mrs Lussick s a ~ d that

,he would buy the Toyota at the Granville pird provided that she found it sat~stactory.
Mrs Lussick was asked to sign an order torn1 and was informed that if she did not like

the Granville vehicle, then she would not have to go ahead with the purchase. Mrs Lu5sick bigned an order form. I-lowever, not all the deta~ls were completed. For

exan~ple. the details ot the car to be purchased were not then inserted. Nevertheless, the sale price of $13,099 was frlled in as was a deposit with an order of $500 and a

trade-in allowance of $3.000.

On 17 March Mrs Lussick also signed a trade-ln offer form which showed that

she waq to receive the sum of $3.000 tor the 1981 Holden Commodore statlon wagon
which she was trading in. She left a deposit of $500

On the same day, Mrs Lussick rncntioncd in her discussions w~th the salesman

that she would require finance Shc signet1 the sectron of the order form which was

headed "Credlt Required" but no details were then inserted. At that tllne Mrs Lusslck

had in mind to obtaln a loan trom the Comnlonwealth Bank as $he and her husband

had obtarned a loan trom that bank for the purchase of therr Comnlodore statlon

wagon.

On the follow~ng day, Mrs Lussrck telephoned a number of banks and budding

socletles to ascertain then current interest rates	She found that the cheapest rate
wa\ that offered by the St George Bulld~ng Society	Mrs Lussick had a telephone
conver\dtlon w~th	the second respondent, Mr Chrls Koukoutas, who was the Business

and Finance Manager ot Tepeda In the coursc of the conversatron, Mr Koukoutas sard to her "We can sweeten the deal tor you it you use Ford Credlt. . We can make it $3,350 instead of $3,000. We can also throw in a 2 year Meclianl Cover Warranty, that's worth $595."

h t c r on 18 March, Mrs Lussick met her husband at Tepeda's premises. A

blue Corolla was available for her inspection. After discussing some minor matters

concerning the car, Mrs Lusslck sald that she was happy to take it. Mrs Lusslck was	then taken into the office of Mr Koukoutas. She saw Mr Koukoutas change the
figures for the trade-ln whlch had been wrltten on the tlrst page of the order form.
The sum ot $3,000 was overwritten to read $3,350. Agalnst the altered figure was
wl~tten the words "lt tlnance wlth Ford Credrt". On the left hand slde of the page, Mr Koukoutas wrote, against the headrng "Options", "Meclianl wrth 2 year warranty".
In her dlscuss~ons w ~ t h Mr Koukoutas. Mrs Lusslck arranged that she would pay a tilrther sun] ot $490 ca\h at or hetore delrvery ancl that the balance payable ot $9.650 would be provlded by Ford Credrt. Mrs Lusslck p a ~ d the $490 and took
possession of the new Corolla on 18 March. O n a t h e r 18 March 1992 or 23 March
1992, M I ~ Lusslck slgned an applrcatron tor tlnance from Ford Credit

Srctlon 47 of the = A prov~des, Inter alla.-

" ( I )	Suhjcct to 1111s tccllon. :I	corpordllon shall not. In trade or commcrcc, cngngc in
the 1wxL"~c	of cxclus~vc	dcallng
( 6 )	A corpordtlon JIW	engdge\ In the prnct~cc or erclus~vc dcallng if the
corporatlon

(a) suppllcs, or offcr, 10 ~ p p l v , good\ or \ervlce\,

(h)	suppl~es, or offer\ to \upply, goods or scrv~ccs at a parllcular prlce, or
(L)	glves clr allows, or offcrs 10 glvc or allow, a discount, allowance, rebate or cretl~l in relation to ihc supply or propowl bupply ot good or sen,lrer hy the corpora11i)n.

on llic condlllon lhat the person to whom lhc corporatlon suppllcs or offcrs or proposes to supply the good3 or tcrvlre\ or. ~f that pcnon 1s a body corporate, a body rorpordtc rclated to that body corporate w ~ l l acqulre goods or tenrlccs of a particular

klnd or descr~ptlon directly or lnd~reclly from nnothcr pcrson "

Counsel for the Trade Practices Cornm~ss~on, Mr D.M. Yates. subm~t ted that

thc transactlon w ~ t h Mrs Lusslck was rnd~st~ngulshable from that w ~ t h N.A. Jones. He sublnltted that it was a term of the transactlon that Mrs Lussrck would recelve a trade-~n allowance of $3.350, if she took out tlnance wlth Ford Credlt but would recelve a trade-~n allowancc ot only $3,000 if she dealt wlth any other finance

conlpnny Mr Yates sub~nittrcl that 7'cpcdn oftered to glve an allowance o r c r e d ~ t

(the trade-~n a l lowan~e of $3,350). In rcl ,~t~on to the supply ot goods (the Toyota

Corolla). on the condrtron that the person to whom Tepeda otfered to supply and supplred the goods (Mrr Lussrck). would acqurre hervrces (the provlsron of finance of 99,650) trom another person (Ford Credrt) Mr Yates subm~tted that the particular rrrcreased trade-ln allowance was ottered on the condrtron that ilnance be taken from Ford Credrt. Mr Yates rcterred to the notatron on thc wrrtten order form agalnst the

amended trade-rn trgure ot $3.350. "rf frnance with Ford Credrt".

Mr L.P Robherds QC, wlth whom Mr T Alex~s of counsel appeared tor the respondents, submrtted that Tepcda dld not offer to allow or to grve the trade-~n

allowancc on the condrtron that Mrs Luss~cli acqurre tlnance from Ford Credrt. Mr

Robberds rubmrtted that Mrs Lusrrck had ayrecd to buy the Toyota Corolla on 17

March 1992, at a trrne prlor to the drscussrons between Mr Koukoutas and Mrs

Luqsrck concerning finance from Ford Credrt.

However, the crltrcal pornt is whether l'epeda oifercd to grve and gave the

trade-rn allowance of $3,350 on the condrtron that Mrs Luss~ck would acqurre servlces

ot a partrcular k~nd or descrrptron. In thrs casc the provrsron of tlnancc, from another

person, Ford Cred~t. It seems to me not to matter whether Mrs Lusslck entered into

:I condrtronal contract to acquire the Toyota Corolla motor vehrcle on 17 March 1992

or entered into a brndrng agreement to do so during the course of 18 March 1992. If the Issue IS ot slgnlficance, my preterence 1s tor the vlew that the condrtlon which was arrlved at between Mrs Lusvck and Tepeda on 17 March 1992 was a condrtion precedent arid was 50 ur~certarn that thcre wn, no brndrng agreement between the

parties untll the whole arrangement was worked out dining the course of 18 March

l992

iMr Robberds submitted that there was no oiler by Tepeda to allow a n mcrease

In the trade-~n of S350 on the condition that Mrs Luss~ck acqu~red the finance for the

transaction trom Ford Credlt Mr Robberds subm~tted that the offer ot the addit~onal

trade-in was made simply to "sweeten the deal". However. it seems to me that an oller was made and was accepted and that it was a term of the arrangement that the increased trade-in would be allowed only it fi~iance was obt,tlned trom Ford Cred~t.

Mr Robberds submitted that no woids capable ot being construed as a condition were recorded on the purchase order torn1 by Tepeda. However, the nat~rral meaning of the words "it finance w ~ t h Ford Cred~t" was that it was a term of the agreement between Tepeda and Mrs Lussick that the trade-in allowance would be $3,350 only i t tlnance was obtalned froill Ford Credit

Therefore the reasons which I expressed in relation to the Jones transaction

apply equally in this case

For these reasons. I am satistied that, in respect of the Luss~ck transaction,

Tepeda lntringed s.47(1) and ( 6 ) of the and that the second respondent, Mr

Chris Koukoutas, was knowingly concerned in and a party to that contravention. I

shall so declare

I shall reserve the queqtlon of costs

I cert~@ that thls and the 7 preceding pages

are a true copy of the reasons tor judglnent hereln of

the EIonourable Mr Jusyce Davles.

Date:	28 October 1994
Counsel tor the appl~cant:	D Yates

Sol~c~tor for the appl~cant: Australian Government Solicltor

Counsel for the respondent:	1- P. Robberds QC
wlth T. Alexls

Sollc~tors tor the respondent: Rockllfts

Date ot hearing:	5 August 1994
Date of j~~dgrnent.	28 October 1994