WALKER v Sell

[2016] FCCA 452

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALKER v SELL [2016] FCCA 452

Catchwords:
CONSUMER LAW – Misleading or deceptive conduct – no reasonable reliance by the applicant upon any representation made by the respondent – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth), ss.18, 138A

Sale of Goods Act 1923 (NSW) s.18

Beale v Taylor (1967) 3 All ER 253
Cassar v Pegararo [2010] VCC 819

Applicant: LYLE WALKER

Respondent: GLEN SELL

File Number: SYG 3328 of 2014

Judgment of: Judge Street

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 3 March 2016

REPRESENTATION

Counsel for the Applicant: Mr A Spencer

Solicitors for the Applicant: Holman Webb Lawyers

Solicitors for the Respondent: Mr S Chandrasegaran
Albury Legal

ORDERS

1. The application is dismissed.

2. The respondent file and serve an affidavit in relation to party-party costs within 7 days together with any submissions as to quantum.

3. The applicant file and serve any affidavit in response or any submissions within 7 days thereafter.

4. The Court reserves the quantification of costs to be paid by the applicant to the respondent, and unless requested by the parties or the parties otherwise agree, the Court will fix the quantum of costs on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3328 of 2014

LYLE WALKER

Applicant

And

GLEN SELL

Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.138A of the Australian Consumer Law in respect of a contract of sale of what was thought to be an original 1970 Ford GTHO Falcon Sedan on 21 August 2013. The applicant’s cause of action was founded in breach of contract and relies upon s.18 of the Sale of Goods Act 1923 (NSW), and in the alterative for misleading and deceptive conduct, in respect of alleged misrepresentations as a result of oral communications, an advertisement, a receipt and the certificate of registration. The parties filed an agreed statement of facts and issues.

2. Both the applicant and the respondent gave evidence, and were the subject of cross-examination.  I find the evidence of the applicant to have been self-serving and evasive.  I do not regard the answers given by the applicant to have been responsive on a number of occasions, and I find the applicant was seeking to advocate his case in a manner that undermines his credit. 

3. To the extent of the conflict with the evidence of the respondent, I prefer the evidence of the respondent.  I found the respondent’s evidence to be consistent, albeit there was some inconsistency in relation to the communications between the applicant and the respondent concerning the radiator.  I accept the evidence of the respondent that he did raise with the applicant that there had been an alteration to the radiator, notwithstanding it was not referred to in his original affidavit.  It is clear that the respondent raised with the applicant, in relation to the communications that took place immediately before the applicant entered into the contract for sale, that the vehicle had been the subject of a complete respray and change of colour, as well as being fitted with a different engine block and I find alteration to the radiator.

4. Whilst there were advertisements that gave rise to the attendance of the applicant at the premises of the respondent at Wodonga, I find that the applicant made his own inspection of the vehicle and relied on his own inspection in deciding to purchase the vehicle.  I find the applicant did not rely on any representations made by Mr Sell either orally or in writing.

5. The circumstances in which the applicant entered into the contract to purchase the vehicle are ones in which the applicant formed his own conclusion as to the original genuineness of the vehicle he was inspecting, and that was based on his own physical inspection and his belief as to his ability to identify the original genuineness of the vehicle by his inspection.  That inspection by the applicant is not what an ordinary, reasonable person would have done in relation to a vehicle of this kind and of this age, in circumstances where he had been informed that the vehicle had been the subject of a change in colour, and that the engine block had been replaced and an alteration to the radiator had occurred. I find in those circumstances an ordinary, reasonable person would have engaged in a thorough examination or required a person familiar with such vehicles to determine whether the vehicle was a genuine original 1970 Ford GTHO Falcon Sedan. The applicant did not carry out a thorough inspection and the inspection by the applicant was not reasonable.

6. The applicant gave evidence that he had a friend who was an expert, who he had communicated with in relation to the nature of the vehicle.  No evidence was put on the applicant’s affidavit about that matter, and this is a further reason why I find the applicant not to be credible and why I do not accept the applicant’s evidence. I find it was the information from the unidentified person that gave rise to the applicant’s belief as to his ability to identify the original genuineness of the vehicle by his inspection.

7. In the course of his evidence in cross-examination, the applicant said he decided to buy the vehicle based on his own inspection of the vehicle.  That evidence is entirely consistent with the applicant relying upon his own assessment of whether the vehicle was original, and I find he did not rely upon what was said or any documents provided to him by the respondent.  To the extent that the applicant looked at the VIN number and the contractual receipt entered into by the parties on 21 August 2013, and the certificate of registration, I find that was not what the applicant relied upon. I do find that it was not reasonable for the applicant, in the circumstances which had been conveyed by Mr Sell, to rely upon that material as identifying that the vehicle was an original 1970 Ford GTHO Falcon Sedan.

8. I find that a reasonable inspection by the applicant or a competent inspection by a person familiar with the type of vehicle in issue would have discovered that the vehicle was not, in fact, a 1970 Ford GTHO Falcon Sedan. 

9. In relation to the applicant’s case, that this was a sale by description, I reject that submission.  This is a case where the applicant inspected the vehicle and made his own decision as to whether to purchase the vehicle based on that inspection.  For the reasons I have given, the applicant did not carry out a reasonable inspection and I find that a reasonable inspection would have revealed it was not a genuine vehicle.  There is no breach of contract by the applicant. 

10. In relation to the case advanced in respect of misleading and deceptive conduct, I find that there was reliance by the applicant upon any representation made by the respondent. I find that the applicant relied upon his own erroneous assessment as to the genuineness of the vehicle. I find that any reliance by the applicant upon the alleged representation by the respondent was not reasonable reliance No contravention of s.18 of the Australian Consumer Law is made out.

11. I have taken into account the submissions of the parties.  The present case is clearly distinguishable from that in Beale v Taylor (1967) 3 All ER 253, in light of the findings I have made in respect of inspection. For the same reason the decision in Cassar v Pegararo [2010] VCC 819 is distinguishable, in that this was not a sale by description. The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 March 2016