Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCA
  3. 2024
  4. Shearer v Super Start Batteries Pty Ltd - [2024] QCA 199

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

Shearer v Super Start Batteries Pty Ltd[2024] QCA 199

Shearer v Super Start Batteries Pty Ltd[2024] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

Shearer v Super Start Batteries Pty Ltd [2024] QCA 199

PARTIES:

REBECCA LEE SHEARER

(first appellant)

SHAWN DEAN SHEARER

(second appellant)

v

SUPER START BATTERIES PTY LTD

ACN 101 683 694

(first respondent)

THE BATTERY STORE AUSTRALIA PTY LTD

ACN 147 781 431

(second respondent)

FILE NO/S:

Appeal No 431 of 2024

DC No 3152 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane – [2023] QDC 241 (Jarro DCJ)

DELIVERED ON:

25 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

14 May 2024

JUDGES:

Mullins P and Boddice JA and Crowley J

ORDERS:

  1. The appeal is dismissed.
  2. The appellants pay the respondents’ costs.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the appellants alleged that the respondents misled or deceived them in breach of s 18 of the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) (“ACL”) – where the appellants alleged the stock was “old” – where the trial judge found that the representations made by an employee and sales representative of the respondents about the quality of the stock were not misleading or deceptive – where the appellants argued that their business was not supported by the respondents’ warranty claims process – where the trial judge found that there was insufficient evidence to prove the respondents engaged in misleading or deceptive conduct regarding the warranty claims – where the appellants alleged misconduct by an employee and sales representative of the respondents – where the trial judge found that the appellants provided insufficient evidence to support their claim of misconduct as against the employee and sales representative of the respondents – where the trial judge found there was insufficient evidence to support a finding as to causation – where the trial judge found that the appellants failed to produce evidence of the damage and loss they claimed – whether the trial judge erred by making, or failing to make, one or more factual findings – whether the trial judge’s findings were open and supported by the evidence

CONTRACTS – BREACH – DAMAGES – where the respondents sought payment of outstanding invoices – where the appellants admitted to entering into the contract, receiving the relevant goods and not making payment for those goods – where the respondents’ defences under s 17 of the Sale of Goods Act 1896 (Qld) and s 23 of the ACL were rejected by the trial judge – whether the credit agreement and the deed of guarantee were unfair and therefore void – whether the relevant goods were of merchantable quality and fit for purpose – whether the trial judge erred by making, or failing to make, one or more factual findings

Competition and Consumer Act 2010 (Cth), s 18, s 23, s 236 of sch 2 (‘Australian Consumer Law’)

Sale of Goods Act 1896 (Qld), s 17

Australian Competition and Consumer Commission v Telstra Corporation Ltd (2004) 208 ALR 459; [2004] FCA 987, cited

Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) 244 ALR 470; [2007] FCA 1904, cited

Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450; [2020] FCAFC 130, cited

Chappell v Goldspan Investments Pty Ltd (2021) 58 WAR 503; [2021] WASCA 205, cited

Wang v Hur [2024] QCA 126, cited

COUNSEL:

D J Kelly for the appellants

P E O'Brien for the respondents

SOLICITORS:

William Roberts Lawyers for the appellants

Enyo Lawyers for the respondents

  1. [1]
    MULLINS P:  I agree with Crowley J.
  2. [2]
    BODDICE JA:  I agree with Crowley J.
  3. [3]
    CROWLEY J:  Super Start Batteries Pty Ltd (“SSB”) imports batteries and related products and sells them to customers throughout Australia.  The Battery Store Australia Pty Ltd (“TBSA”) is an associated company that distributes and sells batteries for SSB, through its network of resellers and distributors.
  4. [4]
    After a series of discussions in early to mid-2019 with a Mr Kishor Kumar, who was both an employee of TBSA and a sales representative of SSB, Mr and Mrs Shearer decided to go into the retail battery business, selling products that would be supplied to them by the respondents.  In August 2019, they opened a store in Mareeba.  In May 2020, they opened a second store in Cairns.
  5. [5]
    Mr Kumar helped the Shearers to set up and run each of their stores, by providing them with initial and ongoing assistance and business advice.  Although it was not within the scope of his role or authority as an employee or an agent of either SSB or TBSA, he also worked in direct hands-on roles in their stores.  In fact, he ran the Cairns store for the Shearers for almost a year after it had opened.
  6. [6]
    SSB, through TBSA and their network of distributors, initially supplied the Shearers with batteries to sell on consignment.  Later, in accordance with a credit agreement backed by the Shearers’ personal guarantee and indemnity, SSB supplied the Shearers with batteries on credit terms.  Under the credit agreement, the Shearers would receive invoices for the goods supplied to them.  The payment terms were generally 30 days.
  7. [7]
    Although the Shearers’ business relationship with SSB and TBSA initially seemed to be a successful venture for all concerned, by early 2021 several problems had emerged.  By September that year the relationship had soured.
  8. [8]
    The Shearers had apparently become concerned about the nature and quality of the stock they had been supplied, had discovered accounting and inventory discrepancies in their business and had encountered issues with the processing and payment of warranty claims for supposedly faulty products supplied to them by SSB.  They suspected Mr Kumar was the cause of many of these problems.  They believed that he had been misusing his role and engaging in dealings and transactions for his own personal benefit, or for the benefit of his employers, to their detriment.
  9. [9]
    For its part, SSB became concerned that the Shearers were not paying their invoices on time.  It started regularly contacting the Shearers about supposedly outstanding accounts.  SSB eventually ceased providing the Shearers with stock on credit and demanded payment of outstanding invoices for batteries supplied under the credit agreement.  The Shearers refused to pay.  They claimed they were unable to sell some of the batteries because of their inferior quality and that their account should have been credited for warranty claims they had submitted to SSB through Mr Kumar.  They complained that Mr Kumar had effectively been running operations in their stores and in doing so he had, amongst other things, manipulated accounts and inventory, accepted deliveries of sub-standard batteries without their knowledge or authority and had failed to make or process warranty claims.
  10. [10]
    Following an ensuing dispute, the Shearers closed their stores and sold their business.  SSB sued the Shearers for the debt they owed for the unpaid invoices.  The Shearers denied they were liable for the debt.  In their defence, they contended the batteries they had been supplied were not of merchantable quality or fit for purpose, and therefore in breach of implied conditions of sale under s 17 of the Sale of Goods Act 1896 (Qld).  They contended that stock supplied to them was not new, as it included old, second-hand and rejected batteries that had been passed on from other stores previously supplied with SSB batteries through TBSA.  They further contended that the terms of the credit agreement and the guarantee and indemnity were unfair and therefore void under s 23 of the Australian Consumer Law (“the ACL”).[1]
  11. [11]
    By counterclaim, the Shearers sought damages against SSB and TBSA for alleged loss and damage suffered as a result of misleading and deceptive conduct engaged in by SSB and TBSA.  Their claim was based upon alleged misrepresentations made by Mr Kumar, which had induced them to go into business with SSB and TBSA.  One aspect of this part of the Shearers’ claim was that SSB and TBSA had apparently not disclosed to them that there had been similar past disputes with other retailers relating to warranty claims and the supposed inferior quality of SSB batteries.  It was the Shearers’ case that their disputes with SSB and TBSA were the latest of a series of disputes related to business failures of parties that had dealt with SSB and TBSA in North Queensland and that the involvement of Mr Kumar was central to each dispute.  In the event that they were liable for the debt, the Shearers claimed they were entitled to set off against the amount owing to SSB any amounts payable to them under their counterclaim.
  12. [12]
    The trial judge gave judgment for SSB on its debt claim and dismissed the Shearers’ counterclaim.  By this appeal, the appellants seek to have the trial judge’s judgment and orders set aside and in lieu seek an order for judgment on their counterclaim.

The grounds of appeal

  1. [13]
    Although there are thirteen separate grounds of appeal, many overlap and involve common complaints.  All grounds assert that the trial judge erred by making, or failing to make, one or more factual findings.  Several grounds contend that certain findings made by the trial judge were “against the evidence, and the weight of evidence”.  Others are expressed in very general terms and seek to challenge the trial judge’s general assessment of the Shearers’ case and evidence.  For example, Ground 2.1 asserts:

“The learned trial judge erred in finding at paragraphs [15] and [18] that the evidence in support of the Appellants' claims was too broad, it invited speculation, was general in nature and lacking in sufficient clarity.”

  1. [14]
    Paragraph [15] of the trial judge’s reasons states:[2]

“My overall assessment of the evidence was that much of the claims raised on behalf of the Shearers were far too broad, it invited speculation, it was general in nature and lacking with sufficient clarity or evidence, in order to substantiate the claims of misleading and deceptive conduct, including that the batteries supplied by Super Start and TBSA were not of merchantable quality or fit for purpose, or that the credit agreement entered into between the Shearers and Super Start was somehow unfair. For the reasons that follow, there is judgment for Super Start in the amount sought and the counterclaim is otherwise dismissed. Had there been more probative evidence led on behalf of the Shearers, then perhaps the outcome of this trial might have been different.”

  1. [15]
    This introductory statement by the trial judge was not the entirety of the findings or reasons given by his Honour for dismissing the appellants, claims.  In my view it serves little purpose to advance such a ground of appeal when there are particular findings dealing with each of the individual issues that are the subject of many other grounds of appeal.
  2. [16]
    Whilst the appeal is by way of a rehearing, the appellant must demonstrate error.  As this Court recently observed in Wang v Hur:[3]

“The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge are settled. The leading High Court authorities are Warren v Coombes; Allesch v Maunz; Fox v Percy; Robinson Helicopter Company Incorporated v McDermott; and Lee v Lee.

The relevant passages from those authorities were recently examined at length in this Court in Sutton v Hunter. To summarise further, but retaining the language used by the High Court authorities referred to in the previous paragraph:

  1.  On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error.
  1.  On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether it should be so satisfied.
  1.  If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.
  1.  When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.
  1.  However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.
  1.  In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused [his or her] advantage” or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which was ‘glaringly improbable’, or which was ‘contrary to compelling inferences.’”
  1. [17]
    Although the Court’s duty is to conduct a “real review” of the trial evidence, an appellant is nonetheless obliged to identify asserted errors with brevity, clarity and precision.  It is not sufficient for an appellant to simply assert that findings were made against the weight of evidence or that other evidence should have been preferred, without identifying the relevant evidence and articulating the reasons why the Court should be persuaded to such a conclusion.  Unfortunately, that was the approach taken by the appellants in this case.

The misleading and deceptive conduct claim

  1. [18]
    The Shearers’ claim was made pursuant to s 236 of the ACL, for alleged contraventions of s 18 of the ACL by SSB and TBSA.  Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or likely to mislead or deceive.
  2. [19]
    To determine whether conduct is misleading or deceptive a two-step analysis is required.  First, it is necessary to ask whether each or any of the pleaded representations is conveyed by the particular events complained of.  Second, it is necessary to ask whether the representations are false, misleading or deceptive or likely to mislead or deceive.[4]  Whether the conduct is misleading or deceptive or likely to be so is a question of fact to be determined by reference to the alleged conduct in light of all surrounding facts, circumstances and context.[5]
  3. [20]
    In Australian Consumer and Competition Commission v TPG Internet Pty Ltd,[6] the Full Court of the Federal Court identified the central question as “whether the impugned conduct, viewed as a whole has a sufficient tendency to lead a person exposed to the conduct into error (that is, to form an erroneous assumption of conclusion about some fact or matter)”.  The Court then set out five subsidiary principles to the central question which can be summarised as:[7]
    1. conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of it doing so;[8]
    2. it is not necessary to prove an intention to mislead or deceive, the question is objective;[9]
    3. it is unnecessary to prove that the conduct in question actually deceived or misled anyone;[10]
    4. it is not sufficient if the conduct merely causes confusion;[11] and
    5. the Court must consider the likely characteristics of the persons who comprise the relevant class to whom the conduct is directed and consider the likely effect of the conduct on ordinary or reasonable members of the class, disregarding reactions that might be regarded as extreme or fanciful.[12]
  4. [21]
    A causal connection between the contravening conduct and the alleged loss and damage must be established for an action for misleading and deceptive conduct to succeed.[13]
  5. [22]
    Non-disclosure of information may constitute misleading or deceptive conduct in some circumstances.[14]  In such a case, it is the effect, or likely effect, of the non-disclosure that is important.  However, unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, mere silence will not support an inference that the fact does not exist.[15]
  6. [23]
    The Shearers’ case was that they were induced to go into business as a result of certain representations made to them by Mr Kumar, acting on behalf of SSB and TBSA.  The trial judge set out the following brief précis of uncontroversial matters that serve to put the Shearers’ case into context:[16]

“It is not controversial that Super Start and TBSA are sellers of batteries around Australia.

After discussions with Mr Kumar, the Shearers decided to open a battery store in Mareeba in August 2019, which was initially largely managed by Mr Shearer’s parents, Noeleen and Warren Shearer (except for a few months when Mr Kumar operated the Mareeba store during COVID-19 lockdowns in 2020). At the time of the Shearers opening their store, BKN [BKN Battery Specialties] was the distributor of batteries for Super Start and TBSA in Far North Queensland. It supplied stock to the Mareeba store.

The Shearers signed credit application forms and guarantees in favour of Super Start and TBSA in February 2020. This allowed the supply of stock on credit.

After the opening of the Mareeba store, the Shearers opened a second store in Cairns after BKN ceased to be distributor for Super Start and TBSA in the region. This occurred in the first half of 2020.

Batteries were supplied to the Shearers and they were sold through both stores.

Mr Kumar operated the Cairns store daily for the Shearers from its opening until early to mid-2021.

In about early 2021, Super Start and TBSA began to follow up outstanding invoices owed by the Shearers, through Ms Rebecca Sarnelli, who was the finance manager for Super Start and TBSA. Despite this, Super Start continued to supply stock to the Shearers between March and September 2021. The Shearers were invoiced for payment. Some of the invoices (as pleaded) remain unpaid.

By early September 2021, Mr Shearer spoke with Ms Sarnelli over the telephone to discuss some matters regarding the invoices that were pressed for payment. He sent her an email dated 27 September 2021 setting out a series of questions outlining some of the issues and concerns he had about the stock.

Mr Theofinas Trigas, who is Super Start’s managing director and manager of TBSA, telephoned Mr Shearer on 29 September 2021 to discuss his concerns in the email of 27 September 2021. No resolution was reached on the telephone.

On 29 September 2021, Mr Shearer paid $10,000 towards the outstanding balance which had previously been invoiced.

On or about 16 November 2021, Super Start lodged a caveat over the Shearers’ property based on the equitable charge contained in the guarantee and indemnity signed by the Shearers. The caveat was subsequently removed by consent to allow settlement of the sale of the property on the undertaking that $100,000 from the proceeds would be paid into Court.”

  1. [24]
    The trial judge recorded the substance of the Shearers’ pleaded case with respect to the representations allegedly made by Mr Kumar as follows:[17]

“…an assertion was made in the counterclaim on behalf of the Shearers that in about late 2019 and early 2020, during the course of the negotiations for them to commence their business in Mareeba, representations were made by Mr Kumar, on behalf of Super Start and TBSA, to enable the business to conduct its operations profitably. The representations were made orally and were that:

  1.  Super Start was a substantial and reputable business.
  1.  Super Start supplied quality Super Start branded batteries which the Shearers would be able to order through TBSA and sell into the retail markets in and around Mareeba and Cairns at a profit.
  1.  TBSA was a substantial and reputable business.
  1.  TBSA supplied quality batteries from sources including from Super Start, which the Shearers would be able to order from TBSA, and sell into the retail markets in and around Mareeba and Cairns at a profit.
  1.  By acting as the local distributor or retail outlet for Super Start and TBSA, the Shearers would be able to set up and operate a business in each of Mareeba and Cairns and derive substantial profits by doing so.
  1.  Super Start and TBSA would support the Shearers in and about the set up and conduct of their business by:
  1.  providing quality stock on credit terms;
  1.  meeting valid claims by customers on warranty or otherwise in relation to defects in the goods or by providing credits for returns by customers; and
  1.  support in the conduct of their business operations by Kumar.

(‘the representations’).”

  1. [25]
    The Shearers’ case was that the representations were misleading or deceptive, or likely to mislead or deceive them, because:[18]
    1. the batteries sold and delivered to them by SSB and TBSA, from about February 2020 to October 2021:
      1. were not quality batteries;
      2. were falsely or incorrectly branded and described (in invoices and in their physical appearance when delivered);
      3. were defective, deficient and unsatisfactory;
    2. SSB had substantial disputes with BKN Battery Specialties (“BKN”) in relation to the sale, supply and distribution of battery stock, which stock was deficient and defective and unable to be sold (“the BKN dispute”);
    3. the BKN dispute was not disclosed to them when the representations were made during the course of their pre-business negotiations;
    4. SSB and TBSA then held a stock of batteries which they proposed and intended to (and did) deliver to them which comprised old stock, second hand stock, returned stock from BKN and returned stock from customers of BKN previously supplied to BKN by or on behalf of SSB (“the BKN returns”);
    5. SSB and TBSA, by Mr Kumar, intended to (and­ did) refer customers of BKN with return of warranty claims to the Shearers notwithstanding that the Shearers had not sold the relevant stock to the customers of BKN; and
    6. Mr Kumar used his access to the Shearers’ business accounts and operating systems for his personal advantage or for the advantage of TBSA or SSB.
  2. [26]
    The Shearers claimed that in these circumstances each of SSB and TBSA engaged in conduct that contravened s 18 of the ACL, in relation to:[19]
    1. the stock and inventory it supplied to them and the accounting for goods sold and delivered to them; and
    2. the correctness of the accounting for goods sold and delivered to them.
  3. [27]
    There was ultimately no issue at trial that Mr Kumar, acting on behalf of SSB and TBSA, had in fact made the representations.  SSB and TBSA’s primary case at trial was that the representations were true and correct and therefore not misleading or deceptive.
  4. [28]
    The trial judge dismissed the Shearers’ claim for damages as his Honour was not satisfied the representations were misleading or deceptive or likely to mislead or deceive; or that causation had been established; or that the Shearers had proven the particular losses and damage they claimed to have suffered.

The nature of the representations (appeal grounds 2.1, 2.2, 2.3, 2.5) and the conduct of Mr Kumar (appeal grounds 2.8, 2.9, 2.10)

  1. [29]
    By these grounds the appellants challenge various factual findings made by the trial judge and his Honour’s ultimate conclusion that the representations were not, in fact, misleading or deceptive or likely to mislead or deceive.  The Shearers variously contend that the trial judge erred in not accepting their claim by wrongly accepting or preferring the evidence of SSB and TBSA, whilst rejecting their evidence as “insufficiently probative”, and by making factual findings that were “against the evidence, and the weight of the evidence”.
  2. [30]
    The Shearers’ case can be assessed by examining the key issues in dispute across five related aspects of their business relationship and dealings with SSB and TBSA, namely:
    1. the nature and extent of the businesses conducted by SSB and TBSA;
    2. the set-up and operation of the business conducted by the Shearers;
    3. the quality of the batteries supplied by SSB and TBSA;
    4. warranty claims complaints; and
    5. Mr Kumar’s other alleged misconduct.
  3. [31]
    I set out below the principal evidence relating to each of these issues and my assessment of the Shearers’ case.  The issues significantly overlap, and I have separated them here simply for convenience and ease of comprehension.

Nature and extent of the SSB and TBSA businesses[20]

  1. [32]
    The Shearers’ case was that Mr Kumar’s representations about the substantial and reputable nature of SSB and TBSA did not match the reality of their business practices and operations.  A particular complaint they made was in respect of the alleged non-disclosure of earlier disputes with other resellers that dealt with SSB and TBSA.

Theofanis Trigas[21]

  1. [33]
    Mr Trigis was the director of SSB and the manager of TBSA.  He was based in SSB’s head office in Sydney.  He gave evidence that SSB had begun as a small business but had expanded over the years to become a company with stores in New South Wales, Victoria and Queensland supplying products to hundreds of businesses.  He considered this was due to the reliability and quality of SSB’s products.  He confirmed SSB operated a substantial, reputable national business that supplied reliable and quality products.
  2. [34]
    Mr Trigas confirmed Kishor Kumar’s duties as the SSB/TBSA sales representative for the Far North Queensland (“FNQ”) region for SSB and TBSA included assisting retail outlets, known as resellers, who exclusively sold SSB and TBSA products to the public, and assisting distributors who exclusively sold SSB and TBSA products to resellers.  It was outside the scope of Mr Kumar’s authority to access or manage any independent accounting systems used by a reseller or distributor, or to work in their stores on a daily basis, or to serve customers and bank cash, or to receive and record their stock or manage their inventory.
  3. [35]
    Mr Trigas stated that before the Shearers, the FNQ resellers and distributors under Mr Kumar’s supervision included BKN in Cairns, “Bruno’s Batteries” in Mareeba and “Insane Performance” in Mackay.  When they later opened, he supervised the Shearers’ store in Mareeba (“TBS Mareeba”) and their store in Cairns (“TBS FNQ”).
  4. [36]
    Mr Trigas explained that in his role he oversaw the running of both SSB and TBSA.  His day-to-day tasks included matters such as supervision of product development, brand development, logistical operations, business expansion and quality control.  He stated SSB products were manufactured in China.  He had been there on many occasions to visit the manufacturer and to supervise production.  He attested to the quality control processes for SSB batteries carried out by both the manufacturer before shipment and by SSB once products arrived in Australia.
  5. [37]
    Mr Trigas detailed the testing procedures that were carried out by SSB’s quality control team before batteries were shipped from its head office to customers.  Under his direction, all SSB and TBSA staff were aware that no stock could be packed or distributed if it had not passed the quality control testing.  All batteries supplied by SSB had to be routinely charged and retested to prevent the quality and life of the battery from diminishing.  He instructed and trained staff in checking and charging batteries.  Agents who held stock on consignment were responsible for the routine charging and testing of the batteries they were supplied.
  6. [38]
    Mr Trigas confirmed that the representations made by Mr Kumar about SSB being a substantial, reputable national business and supplying only quality batteries were correct.
  7. [39]
    When cross-examined,[22] Mr Trigas was not directly challenged on his evidence that SSB and TBSA were substantial and reputable businesses, nor that the SSB batteries sold and distributed by SSB and TBSA were reliable, quality products.  He denied a general suggestion that this part of his evidence was just a boast.  The thrust of the rest of the cross-examination relevant to these grounds of appeal sought to extract concessions from Mr Trigas in response to a series of propositions to the effect that the Shearers had been forced to take old stock on unfavourable terms from BKN when it closed its Cairns store, (the “BKN returns”); that SSB and TBSA had become involved in litigation with BKN (the “BKN dispute”) and most of the North Queensland resellers and distributors that sold batteries supplied by them; that many such stores had since closed; and that as a result SSB and TBSA no longer had a good reputation in Far North Queensland.
  8. [40]
    In respect of these matters, Mr Trigas accepted that SSB had sued BKN and another business named “Big Mike’s” for debts they owed, but otherwise denied each of the various propositions put to him or did not make any significant concessions.

Kishor Kumar[23]

  1. [41]
    Mr Kumar gave evidence that he had more than thirty years’ experience in retailing, warehousing and distribution of stock within the battery industry.  He had been employed as the FNQ sales manager since 2017.  Back then, he lived in Cairns and worked out of business premises shared with BKN.  Part of his role involved locating and engaging new resellers for the TBSA and SSB brand and products.  He would take a very hands-on approach to assist in the start-up of new businesses by advising resellers about the stock they needed and what rates to sell stock and by ordering stock on their behalf and, when necessary, providing assistance on queries.
  2. [42]
    Mr Kumar stated that whenever a reseller in the FNQ region needed stock, they would place an order by notifying him and he would then use an online system to send a purchase order for the stock to either their Cairns distributor or their Townsville warehouse.  The stock would then be packed and sent to the reseller.  Mr Kumar would then issue an invoice to the reseller.  If for some reason the invoice needed to be later adjusted, an account credit would be issued to reflect the adjustment.
  3. [43]
    Mr Kumar detailed his initial dealings with the Shearers and the discussions he had with them about opening a store to become the reseller in Mareeba, and his subsequent discussion with them about taking over from BKN as the Cairns distributor of SSB and TBSA batteries.  He agreed that in those discussions he advised Mr Shearer that SSB and TBSA were reputable, national businesses that supplied good quality products.  He stated that those representations were accurate and factually true.
  4. [44]
    When cross-examined,[24] Mr Kumar was not directly challenged about his evidence that SSB and TBSA were reputable, national businesses.  Much of the cross-examination relevant to this aspect of the claim instead sought to establish SSB and TBSA’s supposed non-disclosure of previous disputes with other FNQ resellers.  In that respect, Mr Kumar denied that there had been a dispute with the Mackay distributor, Insane Performance.  He agreed that there had been a dispute with BKN about some money, but he did not know the details.  He agreed that SSB and TBSA had sued Big Mike’s for a debt arising out of goods sold and delivered.

Rebecca Sarnelli[25]

  1. [45]
    Ms Sarnelli was employed as the Finance and Office Manager for SSB.  She had been in that role since 2006.  She worked out of the Sydney head office and reported directly to Mr Trigas.  She was responsible for the administration of both SSB and TBSA.  Amongst other things, her duties included processing orders, overseeing freight and logistics arrangements for the delivery of products to resellers and invoicing and general bookkeeping.
  2. [46]
    Ms Sarnelli confirmed from her access to company records and accounts that, between 1 March and 6 September 2021, SSB had issued invoices to the Shearers for goods sold and delivered in the sum of $79,166.46.  Between 6 and 18 September 2021 she had issued a credit note to the Shearers for $1,948.83, which was applied to reduce what they owed.  On 29 September 2021, the Shearers made a payment of $10,000.  The outstanding debt owed by the Shearers was $68,163.46.
  3. [47]
    When cross-examined,[26] Ms Sarnelli agreed that SSB and TBSA had sued BKN but had been unable to recover all that they were owed.  She also agreed that they had sued Big Mike’s, which she knew to be a company with a credit arrangement with SSB or TBSA.

Consideration

  1. [48]
    With respect to the nature and extent of the SSB and TBSA businesses, the trial judge stated:[27]

“Not only did Mr Kumar give evidence, but Mr Trigas gave evidence that the representations around Super Start and TBSA, namely that each was a substantial and reputable business and that each supplied quality Super Start batteries which could be sold at profit, were true…Therefore, there were reasonable grounds for making the representations.

…

The evidence led on behalf of the Shearers can be contrasted to the plausible evidence of Mr Trigas as to the batteries and the operations of Super Start and TBSA. He gave evidence about the size and nature of each business and provided satisfactory details of the relevant testing and quality assurance regime that was employed at the time of manufacture and on arrival of the stock in Australia…”

  1. [49]
    With respect to the non-disclosure of the BKN dispute, the trial judge said:[28]

“Regarding the dispute with BKN, Mr Shearer's evidence was that he was told that BKN was not paying its account with Super Start and TBSA. This was the basis of the dispute between Super Start, TBSA and BKN. It is not a matter that affects the truth and falsity of any representations and was not a matter that damaged the Shearers’ business, but rather it created the opportunity for the Shearers to open the Cairns store and act as the local distributor. It is not a matter which elevated it to an obligation to disclose to the Shearers. I therefore reject the assertion made on the Shearers’ behalf that rather than honestly deal with the Shearers about that circumstance, Mr Kumar was ‘opportunistic, in order to support his employer and principal, by inducing’ the Shearers into committing to a new store in Cairns.”

  1. [50]
    No error has been demonstrated in respect of these conclusions.  The evidence simply did not establish that SSB and TBSA had engaged in misleading and deceptive conduct as alleged.  The mostly unchallenged evidence from Mr Trigas and Mr Kumar was that SSB and TBSA were substantial, reputable businesses that sold quality products.  The further evidence adduced in cross-examination did not establish anything to the contrary.  The bare facts that SSB and TBSA may have sued some of their former resellers or distributors, and that some businesses had ceased trading, said nothing about the reputation of SSB and TBSA, nor the quality of their products.
  2. [51]
    The trial judge’s findings and conclusions were clearly open and supported by the evidence.  In any event, quite aside from failing to establish any case that SSB and TBSA were obliged to disclose the BKN dispute, the evidence in respect of that matter fell very far short of proving the pleaded case that the BKN dispute related to the sale, supply and distribution of deficient battery stock.

Set-up and operation of the businesses conducted by the Shearers[29]

  1. [52]
    The Shearers contended that the simultaneous roles and activities being performed by Mr Kumar, both within their businesses and for SSB and TBSA, were a significant cause of the problems they experienced with stock deliveries, inventory and invoicing and the processing of warranty claims.  They claimed that Mr Kumar’s actions were contrary to the representations he had made about the support that would be provided to their business.  Many of their particular complaints related to the fact that certain stock supplied to them did not appear to be new SSB branded batteries, supplied directly by SSB/TBSA, and this adversely affected the profitability of their business.  They also alleged that without their knowledge and permission Mr Kumar had accepted, received and invoiced them for the BKN returns stock which they had earlier rejected and of which they did not approve.  On their case, it was the emergence of these factors that showed that SSB and TBSA had engaged in conduct that was misleading or deceptive, or likely to mislead or deceive.  Amongst other things, they claimed loss of profits estimated at $100,000.

Shawn Shearer[30]

  1. [53]
    Mr Shearer gave evidence that he was employed with the Mareeba Shire Council when he first met Mr Kumar.  It was around mid-2019 that he and his wife began to have discussions with Mr Kumar about the opportunity to start a retail battery business in Mareeba as an agent for SSB and TBSA.  It was during those discussions that Mr Kumar made the representations.  Mr Shearer stated that Mr Kumar also advised him that SSB and TBSA’s recommended retail price on new batteries was a mark-up of 60 per cent over the wholesale price.  Mr Shearer’s evidence about the representations differed slightly but not materially from the pleaded case.
  2. [54]
    Mr Shearer stated that they relied heavily on Mr Kumar to help with the set-up and operation of TBS Mareeba.  Mr Kumar regularly attended the store to conduct dealings and transactions, including the ordering and arranging for the delivery of stock.  According to Mr Shearer, Mr Kumar told him that this was what was expected of him by his employers.  There were no other employees at any time at TBS Mareeba.
  3. [55]
    At first, the Shearers were not offered the supply of stock on credit terms.  Mr Kumar told them that if they wanted credit terms, they needed to sign a distributor’s agreement, which he provided to them.  Mr Shearer did not sign the document as he thought it was too one-sided.  As a result, the initial stock was either purchased outright by TBS Mareeba or received and sold on consignment.  Later, Mr Kumar told Mr Shearer that he and his wife would need to sign a credit application and guarantee to receive stock on credit terms.  The Shearers signed those documents in February 2020.  An initial credit limit of $25,000 was approved.  In her evidence, Ms Sarnelli confirmed that the Shearers’ credit limit was raised to $100,000 on 27 November 2020 and then further increased to $200,000 on 18 May 2021.
  4. [56]
    Mr Shearer stated that Mr Kumar did the initial stock purchase orders for TBS Mareeba.  Mr Shearer later realised this stock was not all new, as it included stock from BKN and Bruno’s Batteries, as well as three pallets of stock returned from the SSB/TBSA Rockhampton outlet. Mr Kumar also invoiced them for consignment stock sent from “TBS Cairns”, which was the trading name for BKN.  When Mr Shearer queried this, Mr Kumar told him there was no practical or material difference as BKN was the largest outlet and agent for SSB/TBSA in the region.  When Mr Shearer pointed out to Mr Kumar that a lot of the stock was branded “Bruno’s Batteries”, Mr Kumar told him that the labels did not matter and could be changed.  Mr Shearer stated he and his father spent a lot of time clipping the labels off those batteries.
  5. [57]
    Despite Mr Kumar’s assurances that there would be no material difference receiving stock from BKN, it appeared to Mr Shearer from the relevant invoices rendered for the stock that BKN had added a cost over the wholesale price that it had paid to SSB/TBSA when it had purchased the stock.  The Shearers claimed this affected the profits they could make when selling the stock to retail customers.
  6. [58]
    Not long after TBS Mareeba had opened, Mr Kumar told Mr Shearer that there were issues with BKN in Cairns.  Later, Mr Kumar told him SSB and TBSA’s arrangement with BKN had been terminated.  Mr Kumar encouraged Mr Shearer to consider a second store in Cairns, in effect to take over from BKN.  Mr Kumar told him that he would be able to assist with regularly attending the Cairns store until they got it up and running.  The Shearers considered the matter and agreed to go ahead, eventually opening TBS FNQ in Cairns on about 18 May 2020.  As the amount of business increased over time, Mr Shearer decided to resign from his job with the Mareeba Shire Council.  He finished with the council on 8 November 2020.
  7. [59]
    With respect to the BKN returns, Mr Shearer stated that he had previously been aware of the stock at TBS FNQ and noticed that some of it was old, second hand and unsaleable BKN stock.  This was around the time TBS FNQ took over from BKN in Cairns, in about May to July 2020.  He stated that he made it plain to Mr Kumar that he would not accept anything other than new stock.  According to Mr Shearer, although Mr Kumar agreed and said he would return the stock, he did not.  Mr Shearer later realised that Mr Kumar had issued an invoice for the BKN returns.[31]  Mr Shearer produced a spreadsheet, marked “SDS-1”, which listed the stock.  He confirmed that the document had originally been received by email from BKN.  Mr Shearer claimed that without his knowledge and permission, Mr Kumar received the BKN returns stock as inventory for TBS FNQ.
  8. [60]
    According to Mr Shearer, he later became aware of an email sent from the TBS Mareeba email account, dated 8 December 2020, purportedly sent by him to Mr Kumar, in which he “accepted” an offer from SSB to purchase the BKN returns for a discount.[32]  Mr Shearer denied sending the email.  He stated that he was not in the Mareeba store on that date as he was working at his parents’ property.  He produced copies of text messages to show that he was at his parents’ property that day.  The Shearers’ case at trial was that Mr Kumar had used the TBS Mareeba email account to accept the offer, pretending to be Mr Shearer.
  9. [61]
    The Shearers used the “Xero” accounting system for their businesses.  Mr Shearer stated that Mr Kumar had access to their Xero accounts from the outset.  Once the two stores were operating, Mr Kumar set up the system so that all stock orders were placed with TBSA Townsville by purchase orders issued from TBS FNQ.  All stock received was then delivered to the TBS FNQ store, where it was signed in by Mr Kumar.  When stock arrived, Mr Kumar was supposed to copy the purchase order and, subject to any adjustments, raise an invoice to be paid by the Shearers.  The invoices were then received at TBS FNQ.
  10. [62]
    Mr Shearer stated that over time, he and his mother discovered that purchase orders were not matching with invoiced amounts or stock.  There were also significant problems reconciling stock to purchase orders and the balances in the Shearers’ accounts.  The Shearers suspected Mr Kumar had been using his role and access to their business records and accounts to manipulate orders and inventory records.  Mr Shearer and his mother investigated the matter and concluded that the discrepancies were attributable to Mr Kumar’s conduct.  As a result, from about 2 July 2021, Mr Shearer excluded Mr Kumar from full access to Xero and inventories.
  11. [63]
    Although he had many concerns about Mr Kumar’s conduct and accounting practices, Mr Shearer conceded he had no realistic prospect of fully tracing and accounting for what had happened.  He stated he had conducted a physical check and audit of all stock at TBS FNQ and had prepared another spreadsheet, marked “SDS-2”, which recorded “tracked stock” and “untracked stock”.  According to his analysis and calculations, the spreadsheet showed missing stock valued at a total of $102,787.  He believed this stock had been removed by Mr Kumar without permission and later sold by Mr Kumar at the Mackay Trade Show for cash, which Mr Kumar kept for himself.  Mr Shearer also prepared a further spreadsheet, marked “SDS-3”, in which he identified unprocessed warranty claims, totalling $41,891.53.
  12. [64]
    In cross-examination,[33] Mr Shearer agreed that during 2019 and into early 2020, the TBS Mareeba store was beginning to develop.  He agreed he was sufficiently comfortable with how it was going that he opened the additional store in Cairns in 2020.  He agreed, to an extent, that he was sufficiently comfortable with how both stores were going that he resigned from his job with the council and began working in the business full-time.
  13. [65]
    Mr Shearer confirmed that his wife had a full-time job in family day care throughout the period their stores were operating, but that she was also responsible for paying invoices for the business.  He agreed that he and his wife were the only persons who had access to the business bank accounts.  He said that he had the highest level of access to Xero and that his wife, his mother and Mr Kumar had a lower level of access.
  14. [66]
    With respect to the initial stock for TBS Mareeba, Mr Shearer agreed that Mr Kumar told by him the stock would be coming from Cairns and that he always knew the stock would come from TBS Cairns but added he did not know that TBS Cairns was trading as BKN.  He said he was not fully aware of that until he already had the lease for TBS Mareeba.  He accepted that they had not rejected the stock, and that they had sold it through their store.
  15. [67]
    Although he maintained he had issues with the Bruno’s Batteries stock, he accepted he did not reject it.  He agreed that he was told to clip the Bruno’s Batteries label from stock, which he did.  He agreed that some of the Bruno’s Batteries stock was sold in store in the usual way.  He further agreed that the initial stock that came from BKN was sold by TBS Mareeba.
  16. [68]
    As to supposedly returned stock from TBS Rockhampton, Mr Shearer said this would have been received in the early days.  He did not further elaborate or identify the particular stock.
  17. [69]
    Mr Shearer accepted that his complaint with respect to old or second-hand stock supplied from BKN related to the BKN returns stock listed in his SDS-1 spreadsheet.  He agreed the spreadsheet was not his document and that he did not know whether anything stated in it was true or not.  Although he disagreed with the suggestion that Mr Kumar returned products that could not be sold, he accepted that “a lot” of the batteries got distributed through sales.  He disagreed with the suggestion that there was no problem in selling any product on the spreadsheet that was marked “can sell”, adding that, in his opinion, they were too old to sell.  He accepted that he had not observed all of the stock himself but nevertheless thought it was too old to sell because he had previously declined to buy it when he first received an email about it.
  18. [70]
    Mr Shearer said that he first became aware that the BKN returns stock had been delivered to TBS FNQ when he started working permanently in the Cairns store in late 2021.  He said he had checked the stock in store and found some serial numbers matched stock listed in spreadsheet SDS-1.  He said the stock was further identifiable by reference to invoice number 101002C.  Without further specifying, he said the matching items were also contained in spreadsheet, SDS-2.
  19. [71]
    I pause to note here that I have reviewed Mr Shearer’s spreadsheets SDS-1 and SDS-2.  It is apparent that SDS-2 only includes item code and item name descriptions of stock and does not include serial numbers.  It is therefore not possible to cross-reference any of the stock in SDS-2 with that listed in SDS-1, which included both product names as well as serial numbers.  SDS-2 also does not contain any reference to invoice number 101002C.  Further, invoice 101002C contains stock codes and descriptions of the BKN returns stock but does not contain serial numbers.  It is therefore again not possible to cross-reference any item on that invoice definitively with any item contained in SDS-2.
  20. [72]
    Mr Shearer disagreed that items listed in SDS-1 could be sold.  He accepted that some of it had been sold by Mr Kumar, although he added that he personally would not have sold it.  He accepted that he had no idea how much of the stock Mr Kumar had sold.  He accepted that it was possible that the old, returned, unusable stock had been sent to the warehouse in Townsville.
  21. [73]
    As to the items recorded in the SDS-2 spreadsheet, Mr Shearer said that he raised the issue of missing stock with Mr Kumar after he had done a stocktake in around July 2021.  He said that he had prepared the spreadsheet based on sales records and it was not based on any purchase orders.  When asked if he had put the sales records into evidence, Mr Shearer said that he was not sure.  He said that he did the stocktake over three days and it was during that time that he compiled the spreadsheet.  He agreed this was his first stocktake and he did not know when any stock had gone missing.
  22. [74]
    I note that no stock sales records were produced at the trial.

Noeleen Shearer[34]

  1. [75]
    Mrs Shearer gave evidence that she and her husband agreed to work in the TBS Mareeba store on a part-time basis to help out.  Her role included setting up the accounts and system, doing the accounts for inventory and invoicing, and minding the shop.  Her husband, Warren, was involved with the physical set up of the shop, which included installing shelves and benches and handling stock.
  2. [76]
    Mrs Shearer stated that Mr Kumar told her that BKN was their distribution outlet for the region and was to be the primary source for the supply of stock to Mareeba.  The first stock was delivered over the course of several visits to the Mareeba store by Mr Kumar, accompanied by his colleague, Neil Weiland, from BKN.  Mr Kumar told her that although some of the stock was from TBSA/SSB on consignment, the rest of it was from BKN, for which TBS Mareeba was to pay BKN directly.
  3. [77]
    During 2019, Mrs Shearer generally handled sales in the store and did the accounts.  All purchase orders for stock were initially sent to BKN and not to SSB or TBSA.  In about early 2020 that situation changed.  She was told that the arrangement with BKN had been terminated.  At Mr Kumar’s direction, all purchase orders were thereafter sent to TBSA Townsville.  From then on, the mark-up price for stock was generally 60 per cent over the wholesale price at which the Shearers had purchased it from SSB and TBSA.
  4. [78]
    Around this time, Mr Kumar began spending more time at TBS Mareeba as he no longer had business premises in Cairns.  For a two-week period in April/May 2020, during the COVID-19 pandemic, Mr Kumar ran TBS Mareeba as Mrs Shearer and Warren remained at home.
  5. [79]
    Mrs Shearer said after TBS FNQ opened, from 1 July 2020 all purchase orders, including those for TBS Mareeba, were sent from the Cairns store to TBSA Townsville, at Mr Kumar’s request.  However, all invoices received from SSB and TBSA continued to be made out to TBS Mareeba.  Inventory for both stores would generally be received and checked in at TBS FNQ by Mr Kumar, before stock for TBS Mareeba was then sent on.  Accordingly, for the most part, the Shearers relied on Mr Kumar to verify all stock deliveries received into TBS FNQ.
  6. [80]
    Mrs Shearer stated that whenever an invoice arrived from SSB or TBSA, she would copy the purchase order, adjust it as needed for any stock not delivered, and would then raise a bill.  At some stage, she realised that the accounts were not balancing because the stock delivered did not match with the invoices received.  She stated she discovered other discrepancies, often involving defective stock, returns, warranties and missing stock or cash.  She typically referred these issues to her son.  There were also many discrepancies with warranty claims.  She recalled a large quantity of batteries at TBS Mareeba from stock failing to go the distance of the warranty, which Mr Kumar had not arranged to return to SSB and TBSA.  As far as she was concerned, the key accounting issues for the Shearers were that the business was billed and required to pay for all stock recorded by SSB and TBSA as delivered to the FNQ store, regardless of the stock quality; the delivery of second-hand stock as new stock; missing stock; and failures by SSB and TBSA to credit the Shearers for returns and warranties.
  7. [81]
    When cross-examined, Mrs Shearer agreed that she knew from the start that the stock for TBS Mareeba came from BKN in Cairns and was being received on consignment.  She agreed that she and Shawn Shearer did all the purchase orders for new stock for TBS Mareeba and those orders were sent to BKN.  She said there were no difficulties with that process and that the batteries came into the store and were sold.  She agreed that from 1 July 2020, for stock received at TBS Mareeba, she was able to use Xero to adjust the purchase orders to match the invoices received and therefore they only paid for stock actually received.

Bhaskaran Nair[35]

  1. [82]
    Mr Nair was the sole director of BKN, the former distributor of SSB and TBSA products located in Cairns.  He gave evidence that when the Shearers commenced their business in Mareeba, Mr Kumar arranged for delivery of BKN stock to their store, which was stock that had initially been sold to BKN by SSB.  His evidence was that the arrangement involved a profit to BKN and that was somewhat unusual as SSB was in a position to supply stock directly to the Shearers but apparently chose not to do so.  He stated BKN had not previously been the supplier to the Bruno’s Batteries store in Mareeba.  He believed Bruno’s had been supplied directly from SSB or TBSA.
  2. [83]
    Mr Nair confirmed there had been litigation between SSB and BKN in New South Wales, in respect of a debt claim by SSB.  One of the disputes that arose related to invoicing for stock that Mr Kumar said he had received into the BKN store and had signed for in his name, but which was never received into the inventory of BKN.  Another issue related to warranty claims for stock returned by customers, which Mr Nair had reported to Mr Kumar but for which very few warranty claims were properly processed and credited to BKN.
  3. [84]
    In cross-examination, Mr Nair denied the suggestion that the initial stock supplied by BKN to TBS Mareeba was all genuine, new SSB stock, stating “No. Old stock which we had in the shop.”  Mr Nair agreed that Mr Kumar had previously supplied batteries to Bruno’s Batteries in Mareeba out of Cairns, through TBSA.

Kishor Kumar

  1. [85]
    Mr Kumar’s evidence was that he told Mr Shearer that he would probably need around $15,000 to $20,000 cash investment to start his business; that he would become the reseller for SSB/TBSA; that all stock would be supplied from their Cairns distributor, who at that time was BKN; and that he would need some consignment stock to get started.  Mr Shearer asked him if he would assist with the setting up and running of the store, as they had no prior experience, and he agreed.  On 25 June 2019, he sent a proposed agency agreement to Mr Shearer by email.  The Shearers never signed it.  When the Shearers later signed the credit agreement and guarantee, they received stock on credit terms.
  2. [86]
    Mr Kumar agreed he had told Mr Shearer that there was a 60 per cent mark-up on batteries between the wholesale price and the recommended retail price.  He stated he explained this to Mr Shearer, so that he would have an understanding of the profit he might be able to make, however, the mark-up charge would ultimately be a matter for the Shearers.
  3. [87]
    Mr Kumar stated that the initial stock for TBS Mareeba was supplied from BKN as they were the SSB/TBSA distributor for the FNQ region.  The stock was supplied on consignment, which meant that BKN would retain ownership of the stock until it was sold in store at TBS Mareeba.  Once sold, the stock would then be paid for by the Shearers and the consignment stock would be refilled.  He stated that he ordered the initial stock from BKN as he was aware of the stock that was required to set up the store and the demand for products in the area.  In further oral evidence in chief at trial, he explained that because he had knowledge of what batteries were sold in that territory, he suggested to Mr Shearer all the batteries that he should be getting in stock in the shop.  He said that Mr Shearer then gave him a list which he then passed on to BKN and that he and Mr Weiland then collected the orders, loaded them on to a ute and delivered them to Mareeba.
  4. [88]
    Mr Kumar confirmed that BKN would have added a cost on the stock, as they were required to make a profit on what they supplied.  He did not have any say in the mark-up that BKN put on the stock they supplied.
  5. [89]
    Mr Kumar stated that when TBS Mareeba opened he would visit there for days at a time to speak to Shawn, Noeleen or Warren Shearer about the business and to assist with training.  He would make sure the store was sufficiently stocked, setting up their wholesale prices and various accounts.  He agreed that during the peak of the COVID-19 lockdowns, in around April to May 2020, he worked in the store as the Shearers’ parents stayed at home.
  6. [90]
    Mr Kumar stated that Mr Shearer had asked him to have access to the Xero accounting system as he wanted him to be in charge of invoicing and ordering products.  His access was however limited to invoicing and entering stock in the system.  He confirmed that having such access to a reseller’s business system was not common practice for him and not within the scope of his role at SSB.  He agreed to Mr Shearer’s request as he considered him as a friend and wanted to help him with his business.  His access to the Shearers’ “systems” was limited to Xero and “Square”, the point-of-sale software used by the Shearers.  He did not have any access to bank accounts.  Rebecca Shearer would make all payments from the business bank account.  Aside from when he worked in the store, he did not have access to the TBS Mareeba email address, including in December 2020 when the email was purportedly sent by Mr Shearer accepting the BKN returns discount offer.  From mid-2020, whilst working at TBS FNQ, he had access to that store’s email address.
  7. [91]
    Mr Kumar stated that in mid to late 2019 he had discussions with Mr Shearer about the Shearers taking over the distribution of SSB and TBSA batteries in Cairns as a reseller.  At this time there were issues with BKN as they had started stocking batteries from other suppliers, in breach of their agreement with TBSA.  It was around this time that Mr Kumar provided Mr Shearer with the credit agreement and guarantee documents so that he would be able to purchase stock on credit terms.  Although he recalled Mr Shearer had some concerns with the credit agreement, he did not recall what they were.
  8. [92]
    When discussing the opportunity for opening a new store in Cairns, Mr Kumar spoke to Mr Shearer about pricing and told him that as they would be a distributor rather than sourcing the product from BKN, they would receive a better price on the batteries.  Once the store was set up, Mr Shearer asked him to order stock for both TBS FNQ and TBS Mareeba through the Cairns store so they could make a larger profit on it.  Whenever stock was provided to TBS Mareeba, Mr Shearer would put a mark-up on that stock.
  9. [93]
    Mr Kumar stated that from about May 2020 onwards, he essentially ran the TBS Cairns store.  That involved opening the store in the mornings, ordering the stock, answering queries from customers and taking in-store payments.  Mr Kumar confirmed that none of this was part of his role as the sales manager for TBSA, rather he did this to assist the Shearers.  He stated that Mr Shearer had promised him a future in managing their businesses and he anticipated that they would have a long-term business relationship.  When running the TBS FNQ store, he would receive stock and generate an invoice on the Xero accounting system.  He stated that Mr Shearer approved of this arrangement.  Whenever stock arrived, he would put it on the shop floor.  No inventory system was ever set up by the Shearers.
  10. [94]
    Regarding the BKN returns stock, Mr Kumar stated it was a small amount of stock supplied by BKN to the Shearers in around May 2020, when TBS FNQ was set up.  The stock came together with a spreadsheet created by BKN, identical to Mr Shearer’s SDS-1 spreadsheet, which noted the quality of the stock.  Mr Kumar advised Mr Shearer that as they were taking over the stock from BKN they would sell as many of the batteries as possible before a final invoice would be provided.  Many of the batteries from the BKN returns were already sold before the discount invoice for the stock was issued in December 2020.
  11. [95]
    Mr Kumar maintained that Mr Shearer sent the 8 December 2020 email, accepting an offer of a 10 per cent discount on the price, together with an extra three months’ warranty on stock from the date of acceptance of the offer.  Mr Kumar stated that it was Mr Shearer who has initially accepted the BKN returns to be added to the inventory on the system.  He recalled speaking to Mr Shearer about the stock and that Mr Shearer said he wanted the stock as he would be able to sell it at a normal price.  Mr Kumar did not recall any conversation of the kind alleged by Mr Shearer about admitting that he had attempted to sell the BKN returns stock without permission and agreeing that he would withdraw it and return the unsalable stock to SSB and arrange for credits.
  12. [96]
    From May to June 2021, Mr Kumar stopped working at TBS FNQ as he needed to travel and work with other TBSA customers.  Mr Kumar stated that Mr Shearer appeared to be annoyed with him about this and it was then that he noticed the relationship started to diminish.  Mr Kumar stated that before that time, none of the Shearers had ever raised any issues or concerns with him about how he was running the business.  He confirmed that in July 2021, his access to Xero was reduced and he was unable to place orders, do invoices or see stock lists.  That essentially meant he was unable to help run the TBS FNQ store.
  13. [97]
    With respect to batteries that were labelled “Bruno’s Batteries”, Mr Kumar agreed that he had directed Mr Shearer to change the labels, however he confirmed the batteries were originally SSB batteries.  He explained that the labels needed to be changed because once Bruno’s Batteries ceased buying stock from SSB, they requested that any remaining product sold by SSB/TBSA not be sold with their labels attached.  The batteries were accordingly relabelled as “Auto Start” which was one of SSB’s brands.
  14. [98]
    With respect to stock purchase orders, Mr Kumar agreed that between May 2020 and 20 August 2021, he was in charge of placing the purchase orders for TBS FNQ.  However, he stated that aside from the initial stock order which he arranged, Noeleen or Shawn Shearer did all the purchase orders for TBS Mareeba.  He stated he was not aware of any dispute between the Shearers and SSB in respect of invoices until late 2021, when SSB stopped supplying stock.  Until September 2021, invoices had always been paid on time.
  15. [99]
    Mr Kumar stated that he was not in charge of any inventory or stock counting in either of the Shearers’ stores.  He did not have access to the TBS Mareeba inventory or stock list.  Although he had placed purchase orders and accepted stock for TBS FNQ, he was not responsible for monitoring stock or conducting stocktakes.
  16. [100]
    When cross-examined,[36] Mr Kumar agreed that he had told the Shearers that the mark-up on stock that would be supplied under the proposed distributor agreement was 60 per cent.  He agreed that he had also told Mr Shearer that there would be a 60 per cent mark-up between the wholesale price and the recommended retail price for the stock supplied from Cairns to Mareeba but added that the 60 per cent mark-up would be on the prices that BKN would invoice the Shearers.  He reiterated that this was simply advice he had given to provide Mr Shearer with an idea about the potential mark-up.  He stated that at the time Bruno’s Batteries in Mareeba were marking up between 60 to 100 per cent on SSB and TBSA products and that was why he gave the 60 per cent example to Mr Shearer.  He added that it was ultimately a matter for Mr Shearer to decide for his business what mark-up he wanted to put on the batteries that he would sell.
  17. [101]
    When Mr Kumar was asked if he could explain how, with all the support he was providing, the Shearers came to owe money to SSB, he said:

“Once again, I have no control over the finances. I cannot see in the system who they pay, when they pay, how much money have they in the bank. I have no control. I have no access to it. So how can I – a business cannot be just controlled by stocks. They have to be able to control the finances: who they pay, how much they pay, how much money they take out of the business, which I have no control of…I don't know what they’re doing with the money.”

  1. [102]
    Mr Kumar agreed that he did have access to Xero, which allowed him to see sales and stock, but said he was “not privy to the financials.”  He agreed that he would use the “Opmetrix” system for invoicing and stock action but denied that he was able to make any changes to invoices.  He said, “…once the invoice is done, the only way I can reverse it is I have to go in, do a credit for any invoice.  There is no way you can change the figure in the system.  That’s how the system is designed.”  Mr Kumar said that he entered hundreds of invoices into the system for the Shearers to pay, but that he was not then involved with payment.  He said it was their responsibility to see that everything matched before they paid.
  2. [103]
    Mr Kumar denied that ordering stock on behalf of the Shearers was part of his role with SSB/TBSA.  He accepted that he had worked in their stores, particularly at TBS FNQ, but denied that everything to do with the Shearers’ business had to go through him.  He reiterated that he was not involved in the financial part of the business and had no control over it.  He denied that he previously had “businesses like BKN” fail “under his stewardship”, insisting again that he had no control over any companies or businesses run by any individuals.
  3. [104]
    With respect to the initial stock sent to TBS Mareeba, Mr Kumar said that he told the Shearers they would be buying the stock from BKN.  He maintained that he had told them this before they had started the business.
  4. [105]
    As to the BKN returns stock received by TBS FNQ, Mr Kumar denied that his employers were keen to have the Shearers accept the stock.  He said it was offered to them at a discount and it was for them to accept or decline the offer.  He denied that the stock was not accepted by the Shearers when it was first recorded as being ordered by TBS Cairns under a purchase order (“PO”).  Mr Kumar recalled having a conversation with Mr Shearer about the stock and the fact that it would be available on deferred payment terms.  He said Mr Shearer was happy to take the stock in July as he would not have to pay for it until November or December.
  5. [106]
    Mr Kumar maintained that it was Mr Shearer who had sent the 8 December 2020 email.  He agreed that the initial offer had been sent to him by email from Ms Sarnelli and that he had then forwarded it on to the TBS Mareeba email.  He said that he later received the acceptance email in reply from Mr Shearer.  He denied the suggestion that he had written and sent that email, stating that he did not then have access to the email account or system at TBS Mareeba.  He agreed that after the acceptance email had been sent, invoice 101002C was sent to TBS FNQ for payment of the discounted amount for the BKN returns stock.  He reiterated that the stock had been received by the Shearers in July and the majority was sold before the discount invoice had been raised.
  6. [107]
    Mr Kumar was further questioned at length about various purchase orders and invoicing records for the BKN returns stock.  He denied any wrongdoing and maintained that when he had first entered the stock on the system in July 2020, both Mr Shearer and Noeleen Shearer would have seen those orders and been aware of the stock.  He added that he also verbally informed them that the stock was there.

Rebecca Sarnelli[37]

  1. [108]
    Ms Sarnelli produced an email she received from Mr Shearer, dated 27 September 2021, in which he posed a series of pointed questions about SSB’s products, its operating procedures and warranty processes and in which he made various allegations of misconduct by Mr Kumar, including accusing him of theft.  In the same email, Mr Shearer queried whether Ms Sarnelli had verified the authenticity of the 8 December 2020 email, by which the discount offer for the BKN returns was apparently accepted by him.
  2. [109]
    In cross-examination, Ms Sarnelli agreed she was aware of the BKN returns stock but denied the suggestion that she, with Mr Kumar, attempted to have the Shearers accept the stock.  She further denied that “getting rid” of the BKN stock was an issue for SSB.  She maintained that an initial offer had been made for Mr Shearer to accept a 10 per cent discount to purchase the stock by 27 November 2020.  She agreed that the offer was only accepted when she received the 8 December 2020 email but that she had not checked to make sure the email was sent by Mr Shearer.

Theofanis Trigas

  1. [110]
    Mr Trigas’s evidence was that the representation made by Mr Kumar to Mr Shearer about the arrangements with Bruno’s Batteries in Mareeba being unsatisfactory were correct.  He confirmed that his business had had a long relationship with Bruno’s Batteries, however when that business had been taken over by the owner’s son (i.e., Cameron De Lai) they began selling other brands of batteries in preference to SSB batteries.  As a result, SSB started receiving calls directly from customers at Mareeba asking if they could order SSB batteries directly.  In his opinion that was why the Shearers’ TBS Mareeba store was an “instant success” because SSB products again became available in the area.
  2. [111]
    Mr Trigas was aware of the dispute that had developed in September 2021 over the Shearers’ unpaid invoices and the email Mr Shearer had sent to Ms Sarnelli.  He gave evidence that he telephoned Mr Shearer on 29 September to discuss the matter.  He stated that during the call he explained the process with respect to warranties and Mr Shearer confirmed he was satisfied with the process.  About two days later, Mr Shearer made the payment of $10,000 towards the outstanding debt.  As the conversation continued, Mr Trigas noticed a change in Mr Shearer’s demeanour.  He stated that Mr Shearer told him that he was going broke and wished him good luck in collecting the money he owed.  Mr Trigas asked for an opportunity to address the concerns Mr Shearer had raised and asked him to provide supporting information in respect of the accusations he had made in his email.  He requested Mr Shearer keep both of his shops open as they were both profitable.  In response, Mr Shearer repeated what he had earlier said, and the call was then terminated.  Mr Trigas had no further communication with Mr Shearer after that time.
  3. [112]
    In cross-examination, Mr Trigas agreed that there were some issues with BKN going out of business in Cairns in 2020.  He agreed they were at that time operating as “TBS Cairns” and as a reseller but not an exclusive distributor.  When asked why it was then that Mr Kumar had insisted that the Shearers’ stock for TBS Mareeba come from BKN, Mr Trigas said that was because of freight issues.  He explained that BKN would order pallet quantities of batteries so the freight costs would be cheap, but as TBS Mareeba wanted small volumes at that time it would have been too expensive.  He said the freight costs would be more than the cost of the batteries and it was therefore not feasible to supply them directly and that was why they purchased stock from the local distributor.
  4. [113]
    Mr Trigas denied that prospective resellers of SSB products would be advised that there was a 60 per cent mark-up between the wholesale to retail price of products.  He said the mark-up varied and depended on the customer and whether it was retail wholesale or a redistributor.  With respect to the initial BKN stock that was provided to TBS Mareeba, Mr Trigas agreed that BKN had already paid SSB/TBSA for the stock but that they had then added a mark-up on top of that price when selling it to the Shearers.  He did not accept however that this reduced the amount of profit the Shearers could make on the sale.  He explained:

“We sell at a distributor price to BKN. BKN on sells it to the Shearers at a wholesale price. The Shearers on sell it as a retail price. There's markup all the way through it. That’s the way distribution works.”

  1. [114]
    With respect to the BKN returns, Mr Trigas disagreed that SSB and TBSA were trying to “get rid of” the stock BKN had left behind.  He said that after they ceased business, BKN had returned stock to reduce their debt.  He said he was aware of the subsequent discount offer made to the Shearers but had not been involved in making the agreement.  He recalled there had been about six months between when they sold the batteries and when the invoice was issued.  He denied the Shearers had refused to accept the stock, adding that “They asked for the stock. They received it.”

Consideration

  1. [115]
    The trial judge found that the representations made by Mr Kumar about the potential profitability of the business were not misleading or deceptive, or likely to be so.  In so finding, the trial judge stated:[38]

“No evidence was led on behalf of the Shearers regarding the profitability or lack thereof (and if evidence was led, then I was not sufficiently apprised of it at trial in order to accept its veracity). For instance, there was no accounting report furnished to corroborate the Shearers' claims about a lack of profitability. It therefore makes it difficult for me to find in favour of the Shearers such that representations regarding profitability were misleading or false given the evidentiary burden did not shift to Super Start or TBSA. On the contrary, Mr Kumar at least identified the extent of mark ups associated with the batteries, which he said, and I accept, the purpose was so that the Shearers could have an understanding of the profit they may be able to make.

…

I accept, as was submitted by Super Start and TBSA, that the representations relied upon on behalf of the Shearers had a ‘flavour of puffery and posturing’. That was part and parcel of ordinary, routine business negotiations. Just because there may have been ‘puffery and posturing’, does not render the representations false, deceptive or misleading.”

  1. [116]
    The trial judge did not err in making these findings.  The evidence adduced at trial did not establish that any of the representations Mr Kumar had made about the profits the Shearers may be able to make from setting up and operating their businesses selling SSB and TBSA products were false or misleading, or likely to be so.  Other than what might perhaps be inferred from Mr Shearer telling Mr Trigis that he was “going broke” during their telephone conversation on 29 September 2021, there was no evidence that the Shearers’ businesses were not profitable.  No financial evidence was adduced to show anything about the level of sales, turnover and profit made by the Shearers in either business.  The Shearers’ non-payment of the debt invoices appears to have been a deliberate choice rather than due to inability.  To the extent that there was any evidence about the profitability of the stores, it suggested that they were each profitable.  Indeed, it was the profitability of TBS Mareeba that encouraged the Shearers to open TBS FNQ, and it was the profitability of TBS FNQ that led to Mr Shearer quitting his job with the council.
  2. [117]
    As to Mr Kumar telling Mr Shearer that they could add a 60 per cent mark-up on the wholesale cost of batteries they sold to customers, Mr Shearer clearly misconstrued or misunderstood what had been said.  Mr Kumar was giving advice, not a promise.  It was a matter for the Shearers to decide what prices they would charge.  Whilst BKN may have charged the Shearers a higher price for the batteries that it supplied to TBS Mareeba than the wholesale cost they had initially been charged by SSB/TBSA, that did not mean that the Shearers could not still add a 60 per cent mark-up to that stock when they sold it to customers.  As Mr Trigis explained, BKN had purchased the stock at a “distributor” price and had then sold it to the Shearers at a wholesale price.  In any event, even if they were unable or unwilling to do so, that did not make any of SSB or TBSA’s conduct misleading or deceptive.  Further, as Noeleen Shearer confirmed in her evidence, after BKN ceased trading, TBS Mareeba sold all stock at a 60 per cent mark-up on the wholesale cost.  In the circumstances, it was open to the trial judge to accept and prefer the evidence of Mr Trigas and Mr Kumar.
  3. [118]
    The representations made by Mr Kumar for the Shearers to receive stock on credit terms were also not misleading or deceptive, or likely to be so.  It was completely understandable and unsurprising that any arrangement for the Shearers to be given stock on credit would require the Shearers to agree to certain terms and to apply for and be approved to receive stock on credit.  There was no evidence adduced at trial to support the pleaded case that it was a requirement and direction of SSB and TBSA in relation to the supply of stock on credit terms that Mr Kumar be granted access to their accounts and operating systems.[39]  I will deal with the related complaint about the quality of the stock supplied on credit when I address that issue further below.
  4. [119]
    The fact that the Shearers were initially supplied with stock from BKN also did not demonstrate that SSB and TBSA had engaged in any misleading or deceptive conduct.  Mr Shearer conceded that he always knew that the batteries would come from TBS Cairns.  The fact that he did not appreciate that TBS Cairns was BKN is of no consequence.  The Shearers did not reject any of the initial stock, even though they knew that it was being supplied by BKN.  Indeed, they sold it.  There was nothing underhanded about the initial stock being sourced from BKN in Cairns.  It was the local distributor for SSB and TBSA products and, as Mr Trigis explained, it would have been prohibitively expensive for the Shearers to be supplied with products direct from Sydney because of the freight costs.
  5. [120]
    There was no evidence whatsoever to support the Shearers’ pleaded case that they were provided with stock that was second hand or returned stock of customers of either BKN or Bruno’s Batteries that had previously been supplied to those businesses by SSB or TBSA.[40]  Although Mr Nair gave evidence that the initial stock supplied from BKN to the Shearers was “old” stock that they had in store, that did not mean that the stock was not good quality, saleable stock that originated from SSB and TBSA.  In any event, as I will explain further below when I address the issue of the quality of the batteries supplied to the Shearers, the description “old” is inapt when it comes to characterising the state of the batteries supplied by SSB and TBSA.
  6. [121]
    It was of also no consequence that some of the stock supplied to the Shearers was labelled as “Bruno’s Batteries”.  As Mr Kumar explained, irrespective of the label, the batteries were always an SSB product.  There was no evidence to suggest that the batteries were not still good quality, saleable SSB stock.  So much is again evident from the fact that not only did the Shearers not reject the batteries, but they also sold them through their Mareeba store.  There was no evidence at all to support the pleaded case that some of the goods sold and delivered to the Shearers included stock that was “falsely labelled or badged” as being SSB stock when that was not the case.[41]
  7. [122]
    Other than Mr Shearer’s assertion that he had checked some serial numbers of some batteries, there was no evidence that any of the initial stock supplied to TBS Mareeba included three pallets from TBS Rockhampton.  In any event, even if did, there was no evidence that the stock was not genuine SSB stock.
  8. [123]
    As to the BKN returns,[42] there was conflicting evidence about what had transpired when the stock was first made available to TBS FNQ and whether Mr Shearer later sent the 8 December 2020 email accepting the discount offer to purchase the stock.  Mr Shearer insisted that he had initially rejected the stock earlier in the year; that he had not sent the 8 December 2020 email; and that he only became aware that the stock had been received into the TBS FNQ inventory much later.  On the other hand, Mr Kumar denied sending the 8 December 2020 email and maintained that Mr Shearer had willingly and enthusiastically accepted the stock earlier in the year.
  9. [124]
    In respect of these matters, the trial judge made the following findings:[43]

“Goods were sold at a discount by Super Start to the Shearers, and, on deferred payment terms.  Relevantly, the evidence from Mr Kumar, of which I accept, was that batteries were supplied on discounted terms and on deferred payment terms in July 2020 and many of them were sold in advance of the date that Super Start and TBSA sought payment.  There was no evidence that the stock was not sold and no particulars as to which were not sold (if any) had been provided.

Further, as has been identified to me on behalf of Super Start and TBSA, in all of the documents regarding a claim as to the acceptance of the goods by email by Mr Shearer on 8 December 2020 that it was likely that Mr Kumar sent the email (which Mr Kumar himself refutes).  There is nothing from Mr Shearer contemporaneously supporting that he did not send the email or authorise it.  Even his email to Ms Sarnelli of September 2021 (when payment was pressed) did not state that he did not send the 8 December 2020 email or authorise its sending.  He asked questions about it in the email of September 2021 to Ms Sarnelli, but never made it known that he did not send it or authorise it.  Further, as it transpired, there was no dispute that the batteries were supplied and were paid for ultimately by the Shearers.”

  1. [125]
    It is evident from the foregoing that the trial judge did not make an express finding about who had sent the 8 December 2020 email.  However, for the reasons that the trial judge indicated, it was not necessary to do so.  His Honour accepted the evidence of Mr Kumar about the batteries being supplied at a discount on deferred payment terms.  It is implicit in the trial judge’s findings that his Honour did not accept Mr Shearer’s evidence that he was not aware that the stock had been received by Mr Kumar and was being sold without his knowledge and permission.  In my view, the trial judge’s findings with respect to the BKN returns were open and supported by the evidence.  It was not the case that the findings were made against the weight of evidence.  The trial judge had the advantage of seeing and hearing the witnesses.  Mr Kumar’s evidence was not inconsistent with any facts incontrovertibly established by the evidence, nor was it glaringly improbable or contrary to compelling inferences.  Indeed, it was supported by the surrounding objective circumstances identified by the trial judge.
  2. [126]
    The evidence at trial did not establish that the representations made by Mr Kumar that he would support the operation of the Shearers’ businesses were misleading or deceptive.  Indeed, the evidence overwhelmingly showed that Mr Kumar had done a great deal to support the Shearers’ businesses, including working in day-to-day and hand-on roles that went beyond the scope of what his employer authorised him to do.  As the trial judge found:[44]

“An uncontroversial fact is that Mr Kumar supported, to a significant extent, the establishment of the Shearers’ business such that it is difficult to see how the set up, conduct and/or business support was, on balance, false and misleading. Mr Kumar attended the stores. He worked in the Mareeba store during COVID-19, as well as the Cairns store daily from when it first opened and well into 2021. I did not form the impression that he charged excessively for his services (or that Super Start or TBSA did). I therefore reject the contention raised on the Shearers’ behalf that Mr Kumar ‘took advantage ... as a result of the trust they reposed’ in him.”

  1. [127]
    These findings cannot be impugned.  There was no reliable evidence, let alone compelling evidence, to support the pleaded case that Mr Kumar had used his access to the Shearers’ business systems to manipulate stock records or to transact dealings for his own advantage or for the advantage of SSB or TBSA.  Aside from the example of the dealings concerning the BKN returns stock and some specific complaints that I deal with further below when addressing instances of alleged misconduct by Mr Kumar, this aspect of the Shearers’ case was reduced to no more than conjecture and supposition.  No reliable documentary evidence was provided to support the Shearers’ claims.  Their case in this regard was never properly particularised let alone proven.

Quality of the batteries supplied by SSB and TBSA[45]

  1. [128]
    The Shearers’ case was that the representations were misleading or deceptive, or likely to be so, because the stock they received was not the “quality” SSB stock they had been told, and led to believe, would be supplied to them through TBSA.  They claimed to have suffered a loss of $79,343.72 on account of meeting BKN warranty claims and receiving old, second hand and returned stock.

Shawn Shearer

  1. [129]
    Mr Shearer made various complaints about the quality of the stock supplied to his businesses, particularly in respect of the initial stock supplied to TBS Mareeba, the BKN returns stock supplied to TBS FNQ and the general state of the batteries that were supplied by SSB and TBSA.  I have already touched upon some of these matters.
  2. [130]
    With respect to the initial stock delivered to TBS Mareeba from BKN, Mr Shearer stated that it did not appear to be new.  He gave evidence that the date of the stock, so far as SSB/TBSA was concerned, related to when the stock was delivered to BKN and not when it was delivered to Mareeba.  He considered this had adverse impacts on potential warranty claims as the old stock was more likely to result in warranty claims and returns.
  3. [131]
    With respect to the BKN returns stock, Mr Shearer stated that some of it was old, second hand and unsaleable.  It is to be recalled that he identified that particular stock as the items listed in spreadsheet SDS-1.
  4. [132]
    When Mr Shearer was asked in cross-examination about the complaints that had been raised in the pleadings with respect to batteries being “out of date”, “sulphated”, “unusable batteries”, Mr Shearer said that he was not familiar with that terminology.  He said that his issue was that some of the batteries were “more than ten per cent out on the capacity rating” when he tested them after they were supplied to his store.  When asked to identify which batteries were of that kind, Mr Shearer said, “Not all of them, obviously.  There were some that were definitely Bruno’s, Solot rings a bell.  SSB was another one.”  Mr Shearer said that the records of the testing he had done on these batteries were contained in the warranty claim forms and that the stock would have been sent back to BKN to swap for other batteries.  He agreed that those batteries were taken back, and he got new ones in return.
  5. [133]
    As to the out-of-date stock, Mr Shearer said, “Out of date stock, in my opinion, is from date of manufacture past its – how you say it.  Past its warranty date, I’d say.”  He maintained that he had been supplied with out-of-date stock and had identified some of it, but when asked where he had recorded the details, he said that it was “at home”.  With respect to “sulphated batteries”, Mr Shearer again said that he was not fully aware of what the terminology meant but, in his opinion, “… sulphated would be if the battery has sat too long and lost its chemical ability.”
  6. [134]
    Mr Shearer was also asked about his complaint that some of the stock was “flat”.  He clarified that he meant that the stock did not have “12 volts in it” and that it could not be recharged as it did not work.  He said that he had tried to recharge batteries that he considered were flat, but they definitely did not work.  He said he had kept records of his tests and the failed batteries, but when asked where the records were, he said “… there would be some definitely in SDS-3.”  He did not further elaborate or attempt to identify the batteries in that spreadsheet that were, on his assessment, flat batteries.  On my review of the SDS-3 spreadsheet, there is nothing to indicate which batteries, if any, may have been recorded as flat batteries.

Noeleen Shearer

  1. [135]
    I have already outlined above Mrs Shearer’s evidence about her concerns generally as to the quality of stock received at TBS Mareeba.
  2. [136]
    When cross-examined about stock received at TBS FNQ, Mrs Shearer agreed that she never worked in that store, however she said that she knew that batteries supplied to that store were not new batteries because some of the stock also came to TBS Mareeba and when it arrived some batteries had “sulphated terminals” and others were “old batteries” that probably had only 12 months to go on the warranty, according to the dates on the labels which showed when they were manufactured, some dating back to 2016.  She said that a lot of the times she had to recharge batteries when they arrived.  She agreed that once the batteries were charged, they were then sold if they were able to come up to the recommended capacity, but if not, they would then be returned under a warranty claim.

Cameron De Lai[46]

  1. [137]
    Mr De Lai is a director of JCMG Group Pty Ltd and a qualified electrician by trade.  He gave evidence that in 2019, through JCMG, he purchased the business formerly conducted by his parents, known as Bruno’s Batteries.  His parents had been involved in the battery industry for many decades and had previously been running the Bruno’s Battery store in Mareeba for some years.  Mr De Lai had worked in the store from 2017 onwards.  He was aware that the business was stocking SSB branded batteries as well as an SSB product labelled “Bruno’s Batteries”.
  2. [138]
    Mr De Lai stated that he had concerns about the products supplied by SSB and TBSA.  His concerns apparently arose from events such as the delivery of batteries which had been incorrectly labelled with wrong “CCA ratings”, incorrect case sizes and issues with warranty claims.  He recalled that a significant number of warranty claims related to stock returned by customers who had purchased batteries that the business had sourced from SSB and TBSA.  He was sufficiently concerned by the number of returns that he investigated the issues by cutting the batteries open and when doing so he found that the plate construction was not what was on the data sheets or specified.  As a result, numerous items were returned to SSB and TBSA for credit.  He recalled returning numerous parts of “1000cca N70” type batteries to SSB and TBSA due to manufacturing faults.
  3. [139]
    Mr De Lai stated a further problem arose when he realised that a lot of SSB stock coming into the business had manufacturing dates up to, or in some cases more than, a year prior to delivery into the store.  He investigated the issue and identified that the age and state of the batteries in the stock supplied by SSB and TBSA were not as presented and that a lot of stock was old and already outside the warranty period offered by SSB.
  4. [140]
    In cross-examination,[47] it was put to Mr De Lai that the faulty 1000cca N70 batteries he referred to were not in fact an SSB or TBSA product.  In response, Mr De Lai said he the assumed that it was supplied by SSB but agreed that he did not know if that was actually the case.

Theofanis Trigis

  1. [141]
    Mr Trigas gave evidence[48] that the date of manufacture of a battery was of no importance to an end customer because the warranty period would start only from when they purchased it.  He said that after manufacture, it could be up to three months before SSB received the products and thereafter it could be anywhere between three months to one year before they were shipped out to a distributor or reseller.  During that period the batteries would be maintained by being regularly charged.  He said there was no such thing as an “old battery” as the batteries were either “brand new” or “factory second”.  He explained that a factory second was a battery that was deemed not to be sold as new because it might have slight damage and that such batteries would be sold with a reduced warranty and at a reduced price.  In contrast, he confirmed that new batteries would have a full warranty, the length of which would depend on the particular product, but the standard product range was around three years from the date of purchase.
  2. [142]
    In cross-examination, Mr Trigas confirmed that there was no such thing as aging of a battery because it was possible for it to be kept in storage and still work perfectly fine.  He confirmed that factory second batteries were functionally no different to new batteries but because of their appearance they looked cheaper and would therefore be sold at a reduced price with a reduced warranty.

John Altamirano[49]

  1. [143]
    Mr Altamirano is an accountant/technical support person employed by SSB in its Sydney head office.  He had undertaken training with respect to technical aspects of the workings of batteries.  As part of his role, he handled warranty claims.  He outlined the warranty claims procedures for SSB, which I will refer to in more detail below when I deal further with that aspect of the case.  He confirmed that warranty claims would only be accepted if two criteria were met: the fault was a manufacturing fault, and the battery was within its warranty period.
  2. [144]
    In cross-examination,[50] Mr Altamirano agreed that he had no qualifications in electrical engineering and no technical qualifications with respect to electrics or electronics.  He agreed that apart from being trained by Mr Trigas on how to conduct battery testing he had not undertaken any technical or further qualification or certification in respect of competency to perform that testing.
  3. [145]
    Mr Trigas was taken to examples of credit notes that SSB had issued in respect of warranty claims made by the Shearers, which recorded in many instances that claims had been denied because batteries were “out of date”.  He explained this indicated that the warranty could not be claimed because there was no proof of purchase to show that the battery was within the warranty period.  He said that if a customer bought a battery from the Shearers’ store, the customer would have to provide proof of purchase when returning the battery to the store in order to claim their refund or replacement battery and that the Shearers would then need to provide that proof of purchase when making the warranty claim for a credit.  He further explained that if a battery failed when tested upon receipt by the Shearers at their store after initial delivery, proof of purchase by the Shearers would still be required for a warranty claim, but he would be able to check that on the system.
  4. [146]
    When it was put to Mr Altamirano that the “out of date” period was determined by looking at the manufacture date, Mr Altamirano denied that was the case.  He reiterated that the warranty period for batteries started when the consumer purchased the battery.  When asked about “old stock”, Mr Altamirano said that SSB did not have “old stock” as all stock was brand new because it could sit in a warehouse for a very long time, provided it was charged and maintained.  He said that the stock, in effect, never ages until it gets sold.  He said that when the stock is sold it was “brand new” regardless of when it was manufactured, as it was unused.

Kishor Kumar

  1. [147]
    Apart from agreeing that he had told Mr Shearer that SSB and TBSA supplied reliable, quality products and that this was true, Mr Kumar did not otherwise refer to the quality of the batteries supplied to the Shearers in his affidavit evidence.  He did note however that he had never expressly said to Mr Shearer that he would receive only new stock with full warranties.
  2. [148]
    When cross-examined, Mr Kumar denied the suggestion that Bruno’s Batteries stopped dealing with SSB and TBSA because they did not like the quality of their batteries.  He explained that it was because the owner had sold the business to his son and the son did not want to deal with SSB and TBSA anymore because he was not wanting to buy the same volumes of batteries that his father had previously purchased.
  3. [149]
    In response to the suggestion that when BKN in Cairns was closing down they still had stock but not all of it was new, Mr Kumar gave the following answer:

“To - to answer the question, you - you need to understand about batteries. By that time, the batteries are made in China and shipped to Australia, it's anywhere between two to four months. Comes into a warehouse, we don’t receive one quantity now. We receive hundreds of quantities of batteries, and the warehouse currently is - is full of pallets of batteries. Sometimes the batteries sit, depending on what orders come from which - which part of the country, the batteries can sit in - in the warehouse for a - a year or two years. Now, we do not have any batteries that we say is either new or old. All our batteries are fresh stored, because that's how batteries work. Once the batteries are sold to a customer - say, for example, if my customer in Townsville sells a battery to an end user, the warranty is given from that time. Not from the time the battery was shipped from China. It could've been two years for the battery to reach Townsville to be sold. So in BKN's case, all the batteries that he had as far as new, they were stocks, fresh stocks, new stocks that we could sell. And we checked them then by checking the voltage of the batteries.”

  1. [150]
    In response to further questions on this issue, Mr Kumar explained that even batteries that had lost voltage in storage could be recharged and sold with a full warranty.  For the reasons he explained, he emphasised that they did not have “old stock” as batteries were “fresh” irrespective of how old they were.  He explained that the stock was either “new stock” or “seconds” but they did not sell old stock.  With respect to seconds, Mr Kumar stated that if stock had sat in a distributor’s warehouse and had not been charged and maintained as it was supposed to have been, but it still had capacity albeit low, then they would not sell it as a new battery but would sell it as a “seconds battery” with limited warranties to customers who wanted to buy seconds.

Consideration

  1. [151]
    The trial judge made the following findings with respect to the Shearers’ complaints about the quality of the batteries supplied to them:[51]

“It is unclear on my assessment the true extent to which the batteries were said to be not of ‘quality’, on an objective basis, or how the true extent to which the batteries were said to be ‘falsely or incorrectly labelled’, branded and described or otherwise defective, deficient and unsatisfactory. This is particularly so given the period of time alleged is between February 2020 and October 2021. I presume that out of all of the batteries supplied during the period claimed, there were some, albeit undefined, that were quality batteries, or not defective or not falsely labelled as claimed on the Shearers’ behalf.

…

Regarding maintenance, charging and shelf life of batteries, there was no evidence led on behalf of the Shearers to establish that they have a claim in respect of any losses with respect to the supply of ‘old stock’ or as to the quality of supply.”

  1. [152]
    No error has been demonstrated in respect of these findings.  The evidence adduced at trial simply did not prove that the representations made by Mr Kumar about the quality of the stock that would be supplied were misleading or deceptive.
  2. [153]
    The Shearers’ complaint about the quality of initial stock supplied to TBS Mareeba could not be sustained.  As I have already noted, the Shearers did not make any complaint about the quality of that stock when it was supplied and they in fact later sold it through their store.  Further, there was no reliable evidence adduced by the Shearers to establish that any of that stock supplied to them was defective or returned by customers due to any fault or failure.  Mr Shearer’s assertions that the stock did not appear to be new did not provide sufficient evidence to establish the Shearers’ claim.  There was no reliable documentary or other evidence produced to support the Shearers’ case.
  3. [154]
    The Shearers’ various complaint about “old” batteries were obviously misconceived.  The evidence of Mr Trigas, Mr Altamirano and Mr Kumar clearly established that batteries remained fresh or new until used, regardless of the date of manufacture.  Their evidence also confirmed that the warranty period for batteries started from when they were sold to the end customer.  The trial judge preferred and accepted their evidence, as his Honour was entitled to do.[52]  Given Mr Shearer’s misunderstandings about “old” batteries, the Shearers’ further complaints about batteries being already out of date or beyond warranty when received at their stores were simply untenable.
  4. [155]
    The quality of the BKN returns stock did not add any support to the Shearers’ case.  That stock was never offered as “new” stock.  The trial judge found Mr Shearer willingly accepted the stock notwithstanding its state.
  5. [156]
    The evidence of Mr De Lai provided no independent support to the Shearers’ case.  His evidence was non-specific and did not relate to any batteries supplied to the Shearers.  It was not capable of establishing any widespread or ongoing faults or manufacturing problems with SSB batteries or some kind of pattern of SSB and TBSA supplying defective, deficient, second hand or recycled products to resellers.

Warranty claims complaints[53]

  1. [157]
    The Shearers case was that contrary to the representations made by Mr Kumar their business was not supported by SSB through its warranty claims processes.  They raised three principal complaints: SSB/TBSA’s refusal of many warranty claims, their obligation to honour warranties for BKN customers and Mr Kumar’s supposed failure to submit and process warranty claims.  They claimed to have suffered a loss of $41,891.35 for warranty claims not met by SSB.

Shawn Shearer

  1. [158]
    Mr Shearer gave evidence the warranty claim issues were caused by SSB’s unreasonable or inexplicable refusal of certain claims.  As an example, he referred to a credit note for invoice A0168,[54] issued 18 September 2021, in respect of three pallets of batteries sent from TBS FNQ to TBSA Townsville for a warranty claim.  The credit note recorded that many claims had been refused because they were “out of date”.  Mr Shearer could not understand how this could be as TBS FNQ had only been running for about a year at the time.
  2. [159]
    Mr Shearer gave further evidence that Mr Kumar had accepted warranty claims or returns of defective products related to sales of batteries by BKN to their own customers, with the result being that the costs simply had to be absorbed by the Shearers’ business.  He also believed Mr Kumar had failed to process warranty claims and returns properly or in a timely manner.  He stated that on one particular occasion Mr Kumar sent returns from TBS FNQ to the TBS Mareeba store, which the Shearers initially assumed was new stock suitable for sale but soon discovered was stock that should have been sent back to Sydney for credit.  Instead of receiving a warranty credit, the Shearers were invoiced for this stock.[55]  Mr Shearer discovered this had apparently been done in respect to other returned stock for which they were awaiting credits for warranties and returns they had submitted through Mr Kumar.
  3. [160]
    In cross-examination, Mr Shearer agreed that not all customer complaints resulted in a warranty claim; that a warranty claim would only be honoured if it was a manufacturing fault and the battery was within its warranty period; and that the warranty period ran from the date of purchase and not from the date the battery was supplied to his store.  He also agreed he was aware that when a warranty claim was made it was the submission of the test result forms to the Sydney head office and not the sending of the batteries to Sydney that resulted in the warranty claim being considered.  He accepted that if old batteries were sent to the Townsville warehouse that would not stop any warranty claims being considered in Sydney.
  4. [161]
    Mr Shearer confirmed the stock listed in his SDS-3 spreadsheet was the subject of warranty claims that had been submitted and denied; warranty claims that had never been submitted; and returned BKN batteries for which Mr Kumar had honoured warranty claims by customers but for which the Shearers had not received credit or a replacement battery.  He considered these were all outstanding warranty claims.  He accepted however that the spreadsheet included stock for which warranty claims had been submitted but rejected, though he added, “I don’t believe they should have been rejected.”  He accepted that he was now raising rejected claims again, albeit he clarified, “Not all of them. There is a few on there.”  He maintained that warranty claims for the “out of date” batteries should not have been rejected as he had only been running his shop for two years and therefore could not see how the warranty would be out of date.  When asked if there was any other evidence to support SDS-3, Mr Shearer said, “You could ring the customer if you really wanted to. They’d vouch for it.”
  5. [162]
    In re-examination, Mr Shearer confirmed he had compiled spreadsheet SDS-3 from records of warranty claims that he had submitted.  As to the claims that had been rejected on the basis that the batteries were “out of date” Mr Shearer explained that the majority of the batteries in the schedule could not even be placed on the shelf in store as they were “dead” when tested upon delivery to the store.  He said his complaint was that warranty claims were refused in respect of out-of-date batteries, yet his trading period had not yet exceeded the period of the warranties for batteries.

John Altamirano

  1. [163]
    Mr Altamirano gave evidence that his current role at SSB was to review the test results for batteries that had been tested by sales representatives or resellers, to determine if there was a manufacturing fault and whether a warranty claim should be approved or rejected. He would not approve claims where the issues related to matters such as normal wear and tear, physical damage, sulphation, incorrect use, undercharging, or storage of batteries for a long period of time without maintenance/charging.  Such matters were not manufacturing faults.
  2. [164]
    Mr Altamirano explained that where a battery had a manufacturing fault, it was necessary to determine if it was within the warranty period.  For that purpose, the customer would have to supply proof of purchase.  If he could not determine whether batteries were within the warranty period, he would mark them as “out of date” and request a proof of purchase.  If no proof of purchase was provided, he was not authorised to approve the warranty claim, and it would be rejected.
  3. [165]
    Mr Altamirano confirmed that customers who experienced issues with batteries purchased from retailers could return them to any reseller.  The store would then conduct an in-store test and complete a testing sheet for each battery.  The store representative would recommend on the testing sheet whether the battery should be scrapped, rebirthed or returned to the customer, or whether a replacement or credit should be provided.  Rebirthing was where a battery was sulphated due to customer neglect, but there was a chance of restoring it to full capacity using de-sulphating charging methods.  Individual testing sheets would be compiled into a monthly warranty claim report which would be sent to SSB’s head office.  Mr Altamirano would review the monthly warranty claim reports and decide whether claims should be accepted or rejected.  He stated that in making that assessment, the sales representative’s test results were used as an indicator, subject to any further internal testing.  The same process applied to warranty claims submitted by resellers in respect of stock they received.  He confirmed that not all warranty claims were successful.
  4. [166]
    Mr Altamirano stated for resellers such as the Shearers, warranty claims would generally be done on a monthly basis.  Resellers would have 30 days from the end of the month to submit their warranty claims.  Mr Altamirano produced copies of all weekly and monthly warranty claim reports submitted on behalf of the Shearers by Mr Kumar.  For approved claims he would issue credit notes and/or an adjusted tax invoice.  Credit notes would be issued within 14 days through their “Tencia” system.  He produced copies of all credit notes issued to the Shearers which were applied in reduction of their account.  Mr Altamirano confirmed that all warranty claims received by the Shearers were assessed and completed in a timely manner, usually within 14 days.  Having checked the Tencia database, he was not aware of any outstanding claims.
  5. [167]
    In cross-examination, Mr Altamirano denied that a warranty claim was accepted once Mr Kumar had tested the battery and determined that there was a fault.  He denied that all warranty claims were entirely dependent upon the test results submitted by Mr Kumar in his monthly report.  He explained that the process was that Mr Kumar would test the batteries and then send the test results to him for the final decision on whether the claim was accepted or not.  He said that sometimes batteries were sent back to Sydney to do further testing.  However, he said that none of the rejected claims that had been submitted by the Shearers involved batteries being sent to Sydney for further testing.  He agreed that he did not do any retesting himself but simply looked at the validity of each claim.  He reiterated the two criteria that needed to be met for a warranty claim to be approved.
  6. [168]
    By reference to tax invoice A0168, Mr Altamirano was asked to explain how batteries could be recorded as “out of date”.  In response, he explained that TBS Mareeba had not supplied any proof of purchase for those batteries and therefore the second criteria for approval a warranty claim had not been met.  He reiterated that the notation “out of date” meant that he needed to receive proof of purchase to be able to accept the claim.
  7. [169]
    Mr Altamirano denied that the date of battery manufacture was used for determining a warranty claim or warranty period.  He reiterated that the warranty period commenced when the user started using the battery.
  8. [170]
    With respect to Bruno’s Batteries, Mr Altamirano denied knowing that they had a dispute with SSB and TBSA about outstanding warranties.  He said he only knew there was some warranty claims that needed to be processed.

Kishor Kumar

  1. [171]
    Mr Kumar gave evidence that generally a reseller would complete their own testing and send the test form and stock to him or to the closest branch.  SSB would then complete the test to determine if there was a manufacturing fault with a battery.  If so, the test sheets would be sent by email to the SSB warranty team in head office for processing credits.
  2. [172]
    Mr Shearer stated that for the Shearers, the warranty claim process differed between their two stores.  If the batteries came into TBS FNQ, he would test them and determine if there was a manufacturing fault.  If so, he would replace the battery for the customer and send the defective battery to SSB for processing of a credit.  For TBS Mareeba, either Shawn or Noeleen Shearer would test the batteries and send them to TBS FNQ.  It was their responsibility to replace any batteries for customers who were covered by a warranty.  He would test the batteries himself, complete the weekly or monthly test sheets, and send them to Sydney to apply for credits.  Faulty batteries would be held at TBS FNQ until a full pallet was received and the stock would then be sent to the warehouse in Townsville.
  3. [173]
    Mr Kumar stated that if a warranty claim was accepted an adjustment note would be issued by SSB and the reseller’s account would be credited.  Upon doing so, the reseller would receive credit for those warranty claims in the same way as they would with stock that they had purchased for their own store.
  4. [174]
    Mr Kumar stated that he actioned all warranty claims in a timely manner.  He stated he forwarded all credits received for the Shearers’ warranty claims on to Noeleen Shearer for her to apply on the system as he did not have access to do so.  He denied failing to process any warranty claims on time as alleged by the Shearers.  He denied not sending batteries to SSB for warranty claims.  He said that although some batteries had not been sent to the Townsville warehouse, that was because the warranties had already been processed and the stock did not need to be returned to the Sydney warehouse before credit notes could be issued.
  5. [175]
    In respect of the warranty claims that were the subject of invoice A0168, Mr Kumar recalled being at the TBS FNQ store when Mr Shearer had packed the batteries to be sent to Townsville and had asked him to process a warranty claim.  However, when he later went to process the claim, he discovered that SSB had already provided credits for most of those batteries.  He produced the credit note for invoice A0168, which showed many duplicate claims had already been made in respect of some of the batteries, and other claims were denied for batteries that were “out of date”, “zero volts”, “sulphated” or had “no manufacturing code”.
  6. [176]
    In cross-examination, Mr Kumar gave similar evidence to that given by Mr Altamirano to the effect that the product warranties commenced from when the batteries were sold to a customer.  He did not accept that the phrase “out of date” meant that a battery was outside the warranty period, reiterating that there was no “out of date” on a battery.
  7. [177]
    Mr Kumar agreed that he would test all batteries from TBS Mareeba or TBS FNQ that were submitted to him for warranty claims to determine if there was a manufacturing fault.  He said that batteries would go to Townsville to be tested again but would not necessarily be sent to Sydney for re-testing to determine whether there was a manufacturing fault.  He said credits would be provided after the paperwork for the claim was sent to Sydney through their Townsville office.  He did not accept that if he determined there was a manufacturing fault that the Sydney office could determine that it was not a manufacturing fault and deny a warranty claim credit.  He denied that all warranty-claim batteries being sent to the Townsville warehouse were entitled to a credit.  He reiterated that the Sydney office would decide whether to provide the credits for approved warranty claims.  He denied there was any problem with him not sending stock on from Townsville to process warranty claims, adding that as soon as the paperwork was sent the warranties would be taken care of from Sydney.  He denied that he had delayed in sending any pallets of batteries to Townsville for processing warranty claims.
  8. [178]
    Mr Kumar confirmed that it was company policy that if somebody came in with a TBSA or SSB battery that was said to be defective that the owner of the store, whether as a reseller or distributor, was to provide the customer with a replacement battery, provided the customer had proof of purchase.  He said that proof of purchase was required in order to determine whether the battery was within the warranty period.  He said the agent would receive a credit for any replacement batteries they provided for such warranty claims.  He added that in respect of the Shearers, they received credits for all warranty claims of this kind that he had done.

Consideration

  1. [179]
    The trial judge succinctly identified the problems with this aspect of the Shearers’ case at trial:[56]

“Another difficulty for the Shearers was that there was insufficient evidence led on their behalf about the warranty claims and no particulars were provided of any incorrectly rejected warranty claims. Their dissatisfaction with any rejections of warranty claims granted does not render the representation untrue.”

  1. [180]
    The trial judge’s assessment was correct.  The evidence was incapable of proving that SSB and TBSA had engaged in misleading and deceptive conduct as alleged.
  2. [181]
    The evidence of Mr Altamirano and Mr Kumar clearly established the warranty claims process for batteries supplied by SSB and TBSA and that all claims submitted on behalf of the Shearers had been processed.  There was no real evidence, other than Mr Shearer’s personal belief, that any warranty claims submitted by the Shearers were not properly considered and assessed according to that process.  The trial judge was entitled to accept and prefer the evidence of Mr Altamirano and Mr Kumar and to draw the inference that all proper warranty claims had been accepted.[57]
  3. [182]
    As with the Shearers’ complaints about batteries being “old”, their case with respect to warranty claims was based on their own misunderstandings.  First, the evidence showed that warranty periods for batteries supplied by SSB and TBSA ran from when the end customer purchased the battery, irrespective of manufacture date.  The suggestion that batteries were near the end of their warranty periods when they arrived at the Shearers’ stores had no basis.  SSB did not use the date of manufacture to determine whether to accept warranty claims.  Second, Mr Shearer was mistaken about the terminology “out of date” which was used by SSB in respect of rejected warranty claims.  As Mr Altamirano emphasised, warranty claims could only be accepted if two criteria were satisfied.  In that respect the notation “out of date”, appearing on documents such as the credit note A0168 referred to by Mr Shearer, meant that the customer had not provided proof of purchase and was not a reference to the age of the battery.  Third, Mr Shearer was mistaken about his obligation to honour warranty claims for SSB batteries sold by other stores.  As Mr Altamirano and Mr Kumar explained, this was company policy, and the reseller would be provided with a replacement battery for such claims.  Fourth, Mr Shearer seems to have wrongly believed that submission of a warranty claim required the physical battery to be sent to Sydney.  That was not the process established by the evidence given by Mr Kumar and Mr Altamirano.  Mr Shearer accepted in cross-examination that the warranty claims were submitted when the test result forms were sent to Sydney, which was something Mr Kumar did by email.
  4. [183]
    In addition to these matters, Mr Shearer’s complaint about warranty claim stock being sent from TBS FNQ to TBS Mareeba as new stock was patently baseless.  Invoice 1187, which he identified as the relevant invoice for the stock, lists the details of five batteries supplied to TBS Mareeba but states that the amount payable is $0.  It is further endorsed with handwritten notes “Just replacement batteries” and “No payment req’d”.  Accordingly, the evidence was that the stock was not held out as new and the Shearers were never charged for it.
  5. [184]
    Finally, there was no reliable evidence capable of establishing the Shearers’ complaint that Mr Kumar had failed to submit or process warranty claims.  Mr Kumar denied the suggestion.  Mr Altamirano produced copies of all monthly test sheets for warranty claims, credit notes and adjusted invoices in respect of warranty claims submitted by the Shearers.  He confirmed SSB had processed the claims, and none were outstanding.  The Shearers produced no independent evidence to support their case.  Mr Shearers’ SDS-3 spreadsheet was simply a list of stock, which he believed were claims that were unreasonably refused or not processed.  No source documents were produced to support its contents.  His spreadsheet provided no reliable evidence of warranty claims that were unreasonably rejected or not submitted or processed.

Mr Kumar’s other alleged misconduct[58]

  1. [185]
    In addition to the various criticisms about Mr Kumar’s conduct that I have already outlined above, the Shearers complained that he had sold some of their stock for cash but had failed to account for the stock or cash; allowed third parties to receive stock from TBS FNQ on credit without their knowledge or permission; accessed their bank accounts without their knowledge or permission; and used their business credit card for personal expenses without their knowledge or permission.

Shawn Shearer

  1. [186]
    Mr Shearer gave evidence that because of his access to their business accounts, Mr Kumar was able to record sales that were not delivered into the store, or to disguise cash sales as an electronic funds transfer payment by changing the way that funds transfers from their bank accounts were reported by their point-of-sale software.  He claimed that Mr Kumar removed cash or paid amounts for his personal benefit, or for that of his employer, totalling $5,323.31.
  2. [187]
    Mr Shearer stated that in one particular instance, they paid $22,204.13 for invoice 501417[59] raised by Mr Kumar in respect of stock supposedly delivered to TBS FNQ but which was never received.  Instead, Mr Shearer claimed, Mr Kumar arranged for the stock to be delivered to Mackay where he then sold it for cash at the Mackay Trade Show.  Mr Shearer stated he only discovered this dealing when later reviewing the business accounts.  He was unable to find any records of any payments made to the business for the stock sold by Mr Kumar at the Mackay Trade Show.  The Shearers claimed a loss of $102,787 in respect of this supposedly missing stock.
  3. [188]
    In addition to these matters, Mr Shearer stated that Mr Kumar had allowed certain customers of TBSA to receive stock on credit terms from TBS FNQ without his approval or consent.  He stated that each of these customers owed money to the business for the stock provided to them on credit.  Mr Shearer identified the customers and outstanding amounts owed by them as:
    1. Billy Whelan, who had a business in Cardwell – $2,208.05;
    2. Michael Lavis of Cairns Batteries – $3,554.03;
    3. Bradley Challacombe, owner of The Battery Store Rockhampton, trading as Insane Performance, and owner of The Battery Store Mackay - $6,087.74;
    4. Agric Services Pty Ltd, an entity in which an employee of TBSA, named John Ricca was a director and shareholder, based at Ayr – $17,502.77 (and the Shearers had also apparently incurred about $4,000 seeking to recover the debt from Agric without success).
  4. [189]
    In cross-examination, Mr Shearer agreed that he had not seen Mr Kumar take any cash from the store.  He accepted that because multiple people had access to the Cairns store it was possible that cash could have been taken by any of them.  He agreed that he could not know with any certainty what had happened to the cash, although he suspected Mr Kumar was responsible because he had receipts for cash sales where Mr Kumar had sold batteries to customers, but he had never seen the money.  When it was put to Mr Shearer that this did not mean that Mr Kumar did not put the cash in the till, he replied, “possibly”.
  5. [190]
    With respect to invoice 501417 and the stock apparently sent to Mackay, Mr Shearer agreed that the invoice could have been for stock that he had taken to either the Mareeba show or the Cairns show.  He could not recall which show it was but ultimately accepted that it was for one of the shows he had attended.
  6. [191]
    As to the TBSA customers who had apparently been provided with stock on credit by Mr Kumar, Mr Shearer agreed that he had empowered Mr Kumar to run the TBS FNQ store.  He also agreed that he was aware that TBS FNQ was trading with Mr Challacombe and that he was not upset about the credit arrangements with him.  He accepted that he had continued to deal with Mr Challacombe, supplying him solar panels and other products.  He denied that Billy Whelan and Cairns Batteries had paid their outstanding accounts.

Rebecca Shearer[60]

  1. [192]
    Mrs Shearer gave evidence that Mr Kumar introduced his wife, Jennifer and said she could help to expand the business through social media and marketing platforms because she had a lot of experience working for TBSA.  The Shearers were open to the idea.  However, Mrs Shearer stated that she later became concerned when she learned that Mr Kumar and his wife had used the Shearers’ credit cards and had access to their accounts system.
  2. [193]
    Mrs Shearer stated that Mrs Kumar had used their accounts to incur expenses in activities that she was undertaking while purporting to act as the TBS FNQ store marketing manager without their consent.  She stated she also later caught out Mr Kumar using their accounts for personal or unauthorised transactions for payment of a speeding fine; payment of airfares; payment for a printer; a deposit for a new car; and an invoice for “customer in Cairns” (not through TBSA).  Mrs Shearer calculated a total of $1,682.86 in unauthorised transactions conducted by Mr Kumar.  She stated that it was because of these issues and also others which were being investigated by her husband and Noeleen Shearer that in about mid-2021 the relationship with Mr Kumar rapidly deteriorated.
  3. [194]
    In cross-examination, Mrs Shearer agreed that when TBS FNQ was set up, Mr Kumar used his own printer in the store.  She further agreed that he had later exchanged text messages with her about his printer no longer working and that he was replacing it.  However, she said she did not know that Mr Kumar was going to use the business credit card to buy a new printer.  She said she only found out about that when she received a security alert text message from the bank, which caused her some concerns.  She agreed that ultimately Mr Kumar did not spend any money on the card and that she later purchased the printer herself.
  4. [195]
    With respect to the money used by Mr Kumar for a car deposit, Mrs Shearer was unable to recall whether Mr Kumar had paid the money back, albeit she was “pretty sure” that he did not.  She agreed that they had sent Mr Kumar an invoice for the speeding fine and car deposit.
  5. [196]
    In re-examination, Mrs Shearer said that Mr Kumar told her the amount spent on the car deposit was a payment for a “tender” for batteries and that he would get the money back.  She confirmed that Mr Kumar had not sought permission for making the payments for the car deposit or the speeding fines.

Noeleen Shearer

  1. [197]
    Aside from her evidence about the concerns and suspicions she had about Mr Kumar’s activities when working for the Shearers, Mrs Shearer provided no further specific evidence about these issues.
  2. [198]
    In cross-examination, she agreed that she had never seen Mr Kumar dealing with any cash.  When it was put to her that a shortfall in cash did not necessarily mean that Mr Kumar had taken it, Mrs Shearer maintained that it did as Mr Kumar had raised an invoice and recorded the payment receipt in Xero.
  3. [199]
    Mrs Shearer agreed she had nothing to do with checking cash balances in the TBS FNQ store but said that when she asked Mr Kumar for money to be banked, he had never given her any cash, even though the records showed that there were cash payments made.  She said that they had never recovered any cash because there was nothing in the till when Mr Kumar had ceased working in the store.  She agreed however that she rarely went to the Cairns store.  She denied that Mr Shearer may have used some of the cash from the Cairns store to pay bills in cash.  She said that if he had done that, he would have told her so that she could record the cash payment.

Kishor Kumar

  1. [200]
    Mr Kumar denied having any access to the Shearers’ bank accounts.  He claimed he was provided with, and authorised to use, the business credit card details to pay for freight and stationery and for airfares and travel expenses for attending trade shows.
  2. [201]
    Mr Kumar stated that the Shearers received all payments for stock sold at trade shows, including any cash sales.  He recalled that in May of 2021, he and Mr Shearer had attended the Mareeba Trade Show, where Mr Shearer had made cash sales.  He stated that in a later conversation Mr Shearer told him that he had found a lot of cash at home, but he could not remember what it was for.  Mr Kumar advised him that it was cash from the trade show.  He stated similar situations had happened in respect of other trade shows before the Mareeba Trade Show.  Mr Kumar denied taking any cash from the stock sold at the Mackay Trade Show.
  3. [202]
    Mr Kumar stated that for any cash sales in store he would place the cash in the till.  He stated he was not in charge of counting the till or doing any reconciliation of accounts and that Noeleen or Shawn Shearer would bank the cash at Mareeba.
  4. [203]
    As to the particular allegations of misusing accounts or credit cards for unauthorised, personal transactions, Mr Kumar stated:
    1. he had paid a speeding fine using the Shearers’ business credit card, but that was done with their permission;
    2. he had not used any accounts or money to pay for personal airfares;
    3. he did attempt to use the Shearers’ accounts to pay for a printer, but that was for the TBS FNQ store and the expenditure was approved by Rebecca Shearer;
    4. he did use the Shearers’ money to pay for a deposit for a new car, however it was a refundable holding deposit which was later returned; and
    5. the Shearers’ accounts were used to pay invoices for a customer in Cairns, however Rebecca Shearer processed this payment with Shawn Shearer’s permission.
  5. [204]
    As to the allegations of providing stock on credit terms to TBSA account customers, Mr Kumar stated that Billy Whelan paid for all stock when he collected it; and Cairns Batteries paid their accounts within 7-14 days and he then forwarded the details onto Shawn or Noeleen Shearer for processing.
  6. [205]
    In cross-examination, Mr Kumar denied that he had sent stock to Mackay and had sold it for cash which he then kept.  When questioned about invoice 501417 and an email chain in April 2021 relating to the quote for order 501417, Mr Kumar agreed that the subject matter of the emails at some stage was written as “Quote – 501417 MACKAY TRADE SHOW”.  However, he said that the original quote was to send the stock from Sydney to Cairns and there was a mistake in the email chain in referring to Mackay.  He added that the stock was actually for the Mareeba Trade Show and the quote was obtained in order to send the stock by express freight, as the Mareeba Show was on in two weeks.  He stated that the stock was delivered to Cairns, with proof of delivery, and they then had to find freight to take it to Mareeba.  When asked why the stock the subject of invoice 501417 had been ordered from Sydney rather than from Townsville for the Mareeba Trade Show, Mr Kumar explained that the products were lithium batteries which were not carried by the Townsville warehouse and therefore they had to come from Sydney.
  7. [206]
    When asked about a later credit note issued in respect of order number 501417, Mr Kumar denied that it had anything to do with Mackay.  He repeated that the stock definitely did not go to Mackay.  When asked about associated emails for the credit note, dated 17 June 2021, Mr Kumar agreed that they had the subject heading “Mackay Order”, but denied they had anything to do with the Mackay Trade Show.  He explained that these related to other regular weekly orders placed by TBS Mackay, hence the subject line.
  8. [207]
    As to the allegations that he had provided unauthorised credit to TBSA customers through the Shearers’ TBS FNQ store, Mr Kumar again denied doing anything wrong.  He said that he was only making decisions to extend credit in conjunction with Mr Shearer after talking to him.  He said he did not, on his own, agree to supply products without Mr Shearer’s knowledge.
  9. [208]
    With respect to the allegations that Mr Kumar had used the Shearers’ accounts to pay for personal expenses without the Shearers’ knowledge and permission, Mr Kumar denied that was the case.  He gave explanations, consistent with his evidence in chief, to justify the payments.  He agreed that he had told the Shearers that the payment made as a deposit for a car was with respect to a “tender” when that was not the case.  However, he denied that he had lied to the Shearers about the purpose of that payment.
  10. [209]
    Mr Kumar denied that he felt disgruntled and mistreated by the Shearers as he had been working for them in their stores without being paid.  He added that although he had not been paid by the Shearers he had spoken to Mr Shearer when he needed to pay his fine and to pay for airfares and that Mr Shearer had said that he could help him out.  He said this was Mr Shearer’s way of rewarding him.  Mr Kumar denied the suggestion that he felt that he deserved such things and had paid for them without permission.  He denied receiving money from cash sales which he kept for himself.

Consideration

  1. [210]
    With respect to the allegations of improper use of the Shearers’ systems, the trial judge concluded:[61]

“There was no satisfactory evidence (aside from speculation) as to any improper use of the systems by Mr Kumar (if in fact such conduct occurred), let alone that the representations were misleading or deceptive or likely to mislead or deceive. The uncontroversial evidence from the Shearers was that Mr Kumar had limited access to the Xero accounting system and had no access to the bank accounts. Only the Shearers had access to the bank accounts. In any event, the evidence was not compelling because it was only raised after a dispute with Super Start and TBSA had arisen and does not establish the falsity of any of the representations as asserted.”

  1. [211]
    These findings are unimpeachable.  There was no evidence whatsoever that Mr Kumar had accessed the Shearers’ bank accounts.  Mr Kumar’s evidence, which was accepted by the trial judge, was that Mr Kumar never had such access.  His Honour was entitled to accept that evidence.  Similarly, there was no evidence that Mr Kumar was able to record sales that were not delivered into the store, or to disguise a sale as an electronic funds transfer payment instead of a cash sale.  The Shearers did not produce any records to support their claims.
  2. [212]
    With respect to the issue of the stock apparently sold by Mr Kumar for cash at the Mackay Trade Show, the documentary evidence relied upon by the Shearers’ case did not prove their case.  Indeed, it clearly showed that the stock was sent to Cairns.  Invoice 501417 was issued to TBS Mareeba but with delivery to TBS FNQ.  The date of the invoice was 29 April 2021.  It contained the reference description “Show Stock”.  The associated emails[62] and a credit note[63] for order 501417 evidenced the freight costs and arrangements to send the stock from the SSB Sydney head office to TBS FNQ in April 2021.  The credit note, which is dated 14 June 2021, in the amount of $6,699.96, states that it is in respect of “Show stock return” for the same order.  It is apparent that all of the returned stock referred to in the credit note was part of the original stock shipped to Cairns that was the subject of invoice 501417.  In cross-examination, Mr Shearer agreed that the stock referred to in invoice 501417 was sold at a show at either Cairns or Mareeba, which he attended.  It is also apparent that the further emails with the subject “Mackay Order” did not relate to this order or stock.
  3. [213]
    Other than Mr Shearer’s unfounded assertion, there was no evidence that Mr Kumar had sold the stock for cash at the Mackay Trade Show and no evidence that he had failed to account for any such sales.
  4. [214]
    There was also no reliable evidence to establish the Shearers’ claim that Mr Kumar had provided credit terms to third party customers of TBS FNQ without the Shearers’ knowledge or permission.  Consistent with the available evidence, the trial judge stated:[64]

“Regarding the claim for $29,152.59 for costs of stock invoiced to third parties (Whelan, Cairns Batteries, Insane and Agric), there is the evidence from Mr Kumar, which I accept, that explained the commercial relationship in each of these instances as between the Shearers and each of the parties (other than Cairns Batteries). There was evidence, which I am prepared to accept, that documents with respect to Cairns Batteries had no connection to the Shearers. As to the claim regarding Insane, Mr Shearer accepted that he was aware of the credit granted to Mr Challacombe and continued dealing with him. There is also no documentary evidence supporting the claim on behalf of the Shearers for costs of stock invoiced to third parties.

Further, the claims against third parties held by the Shearers are a matter for them in the conduct of their own businesses and are not, in my view, losses that should be attributed to Super Start and TBSA and have no connection to the alleged breach of s 18 of the ACL.”

  1. [215]
    As to the allegations of unaccounted for cash sales conducted by Mr Kumar and his use of the Shearers’ bank accounts or credit cards for personal expenses, the trial judge concluded:[65]

“Regarding the other matters sought to be claimed on behalf of the Shearers (i.e. $5,323.31 for cash not banked and $1,682.86 for Mr Kumar's payments), there was no evidence to support these unsubstantiated allegations (through, for example, cash reconciliations or contemporaneous complaints), and, as for the latter claim of $1,682.86, I considered that Mr Kumar was able to provide sufficient details of some matters. In any event, these personal dealings provide no basis for establishing liability against Super Start and TBSA, nor was it established that there has been a causal connection to the claim for any misleading and deceptive conduct (if in fact I found it to be the case).”

  1. [216]
    No error has been demonstrated with respect to these findings.  There was no evidence that Mr Kumar had conducted cash transactions with customers in Cairns but had not banked the proceeds.  No sales or accounting records, Xero records or bank account records were produced to demonstrate any unaccounted cash sales.  As to the alleged instances of Mr Kumar using the Shearers’ credit card or accounts for unauthorised or personal expenses, the trial judge’s assessment, that there was no causal connection between any of these personal dealings by Mr Kumar and the claim against SSB and TBSA, was correct.  As Mr Trigas had made plain, Mr Kumar was not authorised by SSB and TBSA to work in the Shearers’ stores in the hands-on roles he performed.

Conclusion

  1. [217]
    Relevant to each of these grounds, the trial judge stated the following conclusions about the Shearers’ claim:[66]

“There was insufficient evidence led on behalf of the Shearers, for me to safely act upon, to find that the representations were, in fact, false or misleading. When viewed objectively, the representations as pleaded were broad, invited undue speculation and lacked clarity or detail. For example, it is unclear to me the precise nature, quality, defect or otherwise of the batteries; the extent of the profit apparently identified to the Shearers; or their claim about the extent to which Mr Kumar would provide his support to assist in the business setup of the Shearers’ business. These matters were lacking and, to me, were not apparent at trial…

…

When viewed in light of the surrounding facts, circumstance and context, the relevant course of conduct by Mr Kumar, Super Start and TBSA, in my assessment does not, on balance, lead to a finding of false, misleading or deceptive conduct.

It has also been contended on the Shearers’ behalf that Super Start ‘contrary to the representations and in breach of the agreement…for the supply of goods and services’ engaged in conduct which was misleading and deceptive or likely to mislead or deceive. Again, for the reasons given above, I am not of the view, nor have I been satisfied, that there was misleading or deceptive conduct by Mr Kumar, Super Start or TBSA.”

  1. [218]
    It is evident that the trial judge reached these conclusions after considering and weighing the relevant evidence adduced at trial.[67]  Having reviewed the entirety of the evidence for myself, in my opinion the trial judge’s conclusions and assessment of the nature of the representations and of the various deficiencies in the Shearers’ case were accurate and reflected the inadequacy of both the pleaded case and the evidence adduced at trial by the Shearers.  The trial judge, who had the advantage of seeing and hearing the witnesses, was entitled to prefer and accept the evidence given by the respondents’ witnesses.  The Shearers simply did not prove their case.  The trial judge did not err in any of the ways asserted and each of these grounds of appeal fail.

Causation (appeal grounds 2.1, 2.7)

  1. [219]
    Irrespective of the trial judge’s findings about whether SSB and TBSA had engaged in misleading and deceptive conduct, the Shearers’ case failed to prove any causal connection between the alleged conduct and the damage and loss they claimed to have suffered.  On this issue, the trial judge stated:[68]

“Additionally, there was insufficient evidence led on behalf of the Shearers to support any finding as to causation. It had not been pleaded on the Shearers' behalf (nor sufficient evidence given) to demonstrate the necessary causal link between the alleged conduct in breach of s 18 of the ACL and losses.

Also, Mr Shearer gave evidence that he and his wife trusted Mr Kumar and through the representations, the Shearers opened the Mareeba store. He also gave evidence that because of his dealings with Mr Kumar, they suffered loss and damage. Yet minimal evidence/material (if anything) was led to adequately demonstrate how the losses have flowed from the alleged misleading and deceptive conduct (if in fact I found that such conduct arose in the circumstances). I accept, as has been submitted on behalf of Super Start and TBSA, that no evidence has been led which could support a finding of the critical causal connection between the alleged conduct in breach of s 18 and the alleged loss and damage claimed on the Shearers' behalf. Causation for the misleading and deceptive conduct has not been proven.”

  1. [220]
    In my view, the trial judge’s conclusions were entirely consistent with the state of the evidence adduced at trial.  No error is demonstrated, and these grounds of appeal are not made out.

Loss and damage (appeal grounds 2.1, 2.5, 2.6)

  1. [221]
    In addition to the inability to establish causation, the trial judge held that the Shearers had failed to produce sufficient persuasive evidence to substantiate the damage and loss they claimed they had suffered.[69]  In addition to other stated reasons, the trial judge stated:[70]

“Furthermore, the evidence regarding the loss and damage allegedly sustained was lacking. For example, a broad claim regarding $100,000 for loss of profits was asserted on the Shearers' behalf. No satisfactory evidence was led to demonstrate how a quantification for this amount could be made, let alone inferred. The same could also be said with respect to the claim for ‘missing stock’ or for ‘cash not banked’. There were no contemporaneous documents led in support of such amounts.”

  1. [222]
    Again, in my view, the trial judge’s conclusions were entirely consistent with the state of the evidence adduced at trial.  No error is demonstrated, and these grounds of appeal fail.

The unfair contract terms defence (appeal grounds 2.4, 2.12)

  1. [223]
    In their defence to SSB’s debt claim, the Shearers contended that the terms of the credit agreement and guarantee were unfair and therefore void under s 23 of the ACL.[71]  In particular, they pointed to certain charging clauses against their land and property contained in the credit agreement and guarantee, pursuant to which SSB had lodged the caveat over their property on or about 16 November 2021, and clause 7 of the credit agreement, which purported to exonerate SSB from liability for any loss or damage arising from the goods and services they provided to the Shearers.
  2. [224]
    The Shearers claimed that these terms were unnecessary and led to a significant imbalance in the rights and obligations of the parties.  They further claimed that, because of its application and reliance upon the provisions of the credit agreement and guarantee, SSB had caused them financial and other detriment.  In that regard, the Shearers claimed $20,000 compensation due to the caveat that SSB had lodged over their property.
  3. [225]
    The trial judge correctly identified that the relevant time to assess the terms of the contract for the purposes of s 23 of the ACL was at the date of contract[72] and that s 24 of the ACL provided for the meaning of “unfair”.  The trial judge then identified the material terms of the guarantee, which are not necessary to further detail here, and in respect of clause 7 of the credit agreement noted:

“Relevantly, clause 7 of the terms and conditions stated the following:

‘Claims:

7.1. Subject to clause 2.2 herein, Super Start shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided on or behalf of any arrangement with Super Start or occasioned to [the Shearers] or any third or other parties to their property or interest and whether or not due to negligence of [Super Start], its servers or agents.

7.2. As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to [the Shearers], [the Shearers] shall within fourteen days, notify Super Start in writing of same.

7.3. Super Start shall not be liable in any circumstances for any:

  1.  defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overhand non-suitable lubricant, improper installation or repair or variation (other than by/or accident);
  1.  any transport freight charges, installation or removal, labour or other costs;
  1.  defects in goods not manufactured by it, but will endeavour to pass on to [the Shearers] the benefit of any claim by Super Start and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph limited the rights of [the Shearers] against Super Start pursuant to the Trade Practices Act 1974; and
  1.  technical advice or assistance given or rendered by Super Start] to [the Shearers] or not in connection with the manufacturer construction or supply of goods for or to [the Shearers] provided always [Super Start] has rendered such service with due care and skill and that any material supplied in connection with those services was reasonably fit for the purpose for which they are supplied;

7.4 The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not the loss or damage caused by negligence or actions constituting fundamental breach of the contract.’”

  1. [226]
    In rejecting this defence, the trial judge stated:[73]

“Here, as has been highlighted to me by Super Start, the reality was that there was a supply on credit terms, and a form of security was required to support that credit. To me, that does not create a significant imbalance for the purposes of the legislation because it is not unusual, rare or uncommon, particularly in the context of commercial dealings between parties. Further, there was no evidence of any detriment of any kind adduced on the Shearers’ behalf to support a finding of unfairness under the ACL because:

  1.  The Shearers were receiving supply from Super Start and only decided to sign these documents when they wished to access the supply of stock on credit terms.
  1.  The charging clause was reasonably necessary to protect the legitimate interests of Super Start where Super Start was granting credit to the Shearers in a substantial amount. The contract as a whole operated to allow the Shearers to access credit initially at an amount of $25,000, and then $200,000.
  1.  The language used in the charging clause was given in clear terms and was reasonably necessary for the provision of security. It could hardly be viewed as oppressive.
  1.  There was no detriment created at the time of the entry into the contract. The only detriment alleged is the lodging of the caveat in the present instance. However, the caveat was subsequently removed. Therefore, any emphasis relied upon has no application to the present facts and it is irrelevant to consideration of the unfairness of the term where it could only arise after the date of the contract in that the charging clause did not operate to create a caveat over the property, but rather created an equitable charge which later gave a right to Super Start to lodge the caveat in respect of that equitable interest.
  1.  The clause does not fit within any of the examples in s 25 of the ACL.

As to clause 7 of the terms and conditions, I agree with the submission advanced by Super Start that the clause was reasonably necessary to protect the legitimate interests of Super Start where it limits the liability of Super Start to its own products and reasonably limits liability by ensuring that product complaints are brought promptly. It was unclear to me on the evidence led on behalf of the Shearers how such a clause could be construed as unfair for the purposes of s 23, other than that there was a significant power imbalance. Here I have found there not to have been a significant power imbalance. There is also no evidence of any detriment caused by this clause. In the circumstances, I have not been persuaded of the application of the ACL sufficient to deem any unfairness.”

  1. [227]
    In my view, it was open for the trial judge to make each of these findings on the evidence adduced at trial.  No evidence compelling contrary conclusions in favour of the Shearers’ case has been identified.  No error by the trial judge has been demonstrated.  These grounds of appeal are not made out.

The Sale of Goods Act implied terms defence (appeal grounds 2.11, 2.13)

  1. [228]
    The other defence to the debt claim raised by the Shearers was premised upon asserted breach of implied terms of a contract of sale under s 17 of the Sale of Goods Act,[74] which provides:

“17 Implied conditions as to quality or fitness

Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows—

  1.  when the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether the seller is the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose;
  1.  however, in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose;
  1.  when goods are bought by description from a seller who deals in goods of that description (whether the seller is the manufacturer or not) there is an implied condition that the goods shall be of merchantable quality;
  1.  however, if the buyer has examined the goods, there is no implied condition as regards defects which such examination ought to have revealed;
  1.  an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade, if the usage is such as to bind both parties to the contract;
  1.  an express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.”
  1. [229]
    The Shearers’ case was that SSB breached the implied terms because the goods sold and delivered by SSB were not of merchantable quality or fit for the purpose of sale as batteries to retail customers of their business.  In this respect, the Shearers relied upon the same complaints and allegations I have already canvassed with respect to the supposed defective and deficient quality of the batteries with which they were supplied.
  2. [230]
    The trial judge rejected the Shearers’ defence.  After reciting the terms of s 17, the trial judge stated:[75]

“On a proper construction, there are no implied terms as to merchantable quality or fitness for purpose unless one of the subparagraphs apply. Here none of the subparagraphs apply, nor is there any pleading as to which subparagraph is applicable on the Shearers’ behalf. There was no pleading of material facts or evidence that would allow for any of those subparagraphs to be satisfied. There is no evidence about a disclosed purpose or as to the goods bought by description. I am not in a position to make any determination as to whether this section applies because of the way the matter was conducted at trial. No adequate defence has been shown to me.

…

Also, it is clear from the evidence that Super Start’s claim are for invoices dated from 1 March 2021 to 6 September 2021. On the Shearers’ behalf, complaints had been made about stock delivered well in advance of the invoices which have been sought by Super Start. They all relate to the initial stock provided which was at the Mareeba store when it opened in June 2019 or to stock delivered in or around July 2020. They cannot be used to support a defence to the allegations as to non-payment in the statement of claim.

In addition, clauses 7.1, 7.2 and 7.3 preclude the defence which has been agitated on behalf of the Shearers. The Shearers have no claim in respect of the goods which were delivered and accepted, and, where no complaint was made until after demands for payment of Super Start’s claimed invoices had been made, I am unable to accept the veracity of any complaint lodged on the Shearers’ behalf with respect to non-payment. It is in those circumstances that the defences relied upon on behalf of the Shearers have not been established by the evidence or at all and Super Start must succeed on its claim.”

  1. [231]
    No error has been shown with respect to these findings and conclusions.  They were clearly correct.  Each matter identified by the trial judge provided an insurmountable obstacle to this aspect of the Shearers’ defence.  Nothing has been identified to demonstrate any different conclusion was warranted and ought to have been reached by the trial judge.  These grounds of appeal fail.

Conclusion

  1. [232]
    In my opinion none of the alleged factual errors said to have been made by the trial judge has been established and none of the grounds of appeal have been made out.  There was nothing inherently implausible or glaringly improbable about the evidence that the trial judge preferred and accepted over the evidence adduced by the Shearers.  The Shearers’ evidence did not establish any contrary facts or contrary compelling inferences that ought to have been drawn by the trial judge.

Orders

  1. [233]
    I would order:
  1. The appeal is dismissed.
  2. The appellants pay the respondents’ costs.

Footnotes

[1] Competition and Consumer Act 2010 (Cth), sch 2.

[2]  Paragraph [18] of the primary judge’s reasons for judgment contains no factual findings and is incorrectly cited by the appellants.

[3]  [2024] QCA 126, [23]–[24] (citations omitted).

[4] Australian Competition and Consumer Commission v Telstra Corporation Ltd (2007) 244 ALR 470, [14]–[15].

[5] Australian Competition and Consumer Commission v Telstra Corporation Ltd (2004) 208 ALR 459, [49]; Paula Susan Chappell as Executor of Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd (2021) 58 WAR 503, [405]-[406] (‘Paula Susan Chappell’).

[6]  (2020) 278 FCR 450, [22], considered in Invisalign Pty Ltd v SmileDirectClub LLC (2023) 166 ACSR 215, [702].

[7]  (2020) 278 FCR 450, [22].

[8] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25, 29–30.

[9] Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216, 228.

[10] Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, 202.

[11]  Ibid.

[12] Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45, [101]–[105].

[13] Paula Susan Chappell, [410].

[14] Paula Susan Chappell, [408].

[15]  Ibid.

[16]  Reasons, [16]–[26] (footnotes omitted).

[17]  Counterclaim, paragraph 6.

[18]  Amended Defence, paragraphs 7(a)-(d) and Counterclaim, paragraph 14.

[19]  Counterclaim, paragraphs 15, 16.

[20]  Cf. Counterclaim, paragraphs 6(a), (c), 14(b), (c).

[21]  ARB 297, Affidavit of Theofinas Trigas, sworn 10 June 2022 (Exhibit 77).

[22]  ARB 1674–1728.

[23]  ARB 477, Affidavit of Kishor Kumar, sworn 9 June 2022.

[24]  ARB 1439–1597.

[25]  ARB 740, Affidavit of Rebecca Sarnelli, sworn 9 June 2022 (Exhibit 69).

[26]  ARB 1605–1645.

[27]  Reasons, [39] and [41].

[28]  Reasons, [53(j)].

[29]  Cf. Amended Defence, paragraphs 7(a),(b),(c),(e); Counterclaim, paragraphs 6(b),(d),(e),(fi),(fiii), (gi),(giii) and 14(d),(e),(f).

[30]  ARB 164, Affidavit of Shawn Dean Shearer, sworn 12 May 2022 (Exhibit 1); ARB 208, Affidavit sworn 5 September 2022 (Exhibit 2).

[31]  ARB 930 (Exhibit 21 – Invoice #101002C).

[32]  ARB 935 (Part of the email chain in Exhibit 22).

[33]  ARB 1329–1354.

[34]  ARB 110 and ARB 230, Affidavits of Noeleen Joy Shearer, sworn 4 May 2022 (Exhibit 6) and 2 September 2022 (Exhibit 7).

[35]  ARB 844, Affidavit of Bhaskaran Nair (Exhibit 10).

[36]  ARB 1439–1597.

[37]  ARB 822–825.

[38]  Reasons, [47], [51].

[39]  Cf. Amended Defence and Counterclaim, paragraph 13.

[40]  Cf. Amended Defence and Counterclaim, paragraph 7(b).

[41]  Cf. Amended Defence and Counterclaim, paragraph 7(c).

[42]  Cf. Amended Defence and Counterclaim, paragraph 7(a).

[43]  Reasons, [53(f),(g)].

[44]  Reasons, [50].

[45]  Cf. Amended Defence paragraphs 7(a)–(d);Counterclaim paragraph 14(a).

[46]  ARB 265, Affidavit of Cameron James De Lai, sworn 8 February 2023, (Exhibit 9).

[47]  ARB 1414–1416.

[48]  ARB 1672–1674.

[49]  ARB 390, Affidavit of John Andro Santos Altamirano, sworn 10 June 2022, (exhibit 75).

[50]  ARB 1647–1669.

[51]  Reasons, [53(a),(i)] (footnotes omitted).

[52]  Reasons, [39]–[41],[45],[53(b),(c)] (footnoted omitted).

[53]  Cf. Amended Defence paragraphs 7(h) and (i);Counterclaim paragraphs 6(fii),(gii) and 14(e).

[54]  ARB 719 (Part of the bundle of credit notes produced by Mr Kumar as Exhibit “KK-1” to his affidavit).  Nb. Mr Shearer incorrectly referred to the credit note in his affidavit as “A0186”.

[55]  Mr Shearer later identified this stock by reference to Tax Invoice 1187.  That document appears at ARB 1146 (within a bundle of documents that comprise Exhibit 78).

[56]  Reasons, [48].

[57]  Reasons, [43]–[45], [49], [62] (footnoted omitted).

[58]  Cf. Amended Defence, paragraph 7(g); Counterclaim, paragraph 14(f).

[59]  ARB 874 (Exhibit 12).

[60]  ARB 159, Affidavit of Rebecca Shearer, sworn 9 May 2022, (Exhibit 3).

[61] Reasons, [53(l)].

[62]  ARB 875–881 (Exhibit 13) and ARB 883 (Exhibit 15).

[63]  ARB 882 (Exhibit 14).

[64]  Reasons [59]–[60] (footnotes omitted).

[65]  Reasons [67] (footnotes omitted).

[66]  Reasons, [40], [54]–[55] (footnotes omitted).

[67]  Reasons, [38]–[55].

[68]  Reasons, [56]–[57]; [60] (footnoted omitted).

[69]  Reasons, [58]–[63], [65]–[68].

[70]  Reasons, [58].

[71]  Amended Defence, paragraph 2.

[72]  Reasons, [78].

[73]  Reasons, [82].

[74]  Amended Defence, paragraphs 6–8.

[75]  Reasons, [85]; [88]-[89].

Close

Editorial Notes

  • Published Case Name:

    Shearer v Super Start Batteries Pty Ltd

  • Shortened Case Name:

    Shearer v Super Start Batteries Pty Ltd

  • MNC:

    [2024] QCA 199

  • Court:

    QCA

  • Judge(s):

    Mullins P, Boddice JA, Crowley J

  • Date:

    25 Oct 2024

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QDC 24115 Dec 2023Trial of claim and counterclaim concerning retail battery business; judgment for plaintiff; defendants' counterclaim dismissed: Jarro DCJ.
Notice of Appeal FiledFile Number: CA 431/2412 Jan 2024Notice of appeal filed.
Appeal Determined (QCA)[2024] QCA 19925 Oct 2024Appeal dismissed: Crowley J (Mullins P and Boddice JA agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Australian Competition and Consumer Commission v Telsta Corporation Ltd (2007) 244 ALR 470
2 citations
Jump To
Cite 1 - (2007) 244 ALR 470
Cite 2 - (2007) 244 ALR 470
Australian Competition and Consumer Commission v Telstra Corp Ltd (2004) 208 ALR 459
2 citations
Jump To
Cite 1 - (2004) 208 ALR 459
Cite 2 - (2004) 208 ALR 459
Australian Competition and Consumer Commission v Telstra Corporation Ltd [2004] FCA 987
1 citation
Jump To
Cite 1 - [2004] FCA 987
Australian Competition and Consumer Commission v TPG Internet Pty Limited [2020] FCAFC 130
1 citation
Jump To
Cite 1 - [2020] FCAFC 130
Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2020) 278 FCR 450
3 citations
Jump To
Cite 1 - (2020) 278 FCR 450
Cite 2 - (2020) 278 FCR 450
Cite 3 - (2020) 278 FCR 450
Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45
1 citation
Jump To
Cite 1 - (2000) 202 CLR 45
Chappell v Goldspan Investments Pty Ltd (2021) 58 WAR 503
2 citations
Jump To
Cite 1 - (2021) 58 WAR 503
Cite 2 - (2021) 58 WAR 503
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25
1 citation
Jump To
Cite 1 - (1984) 55 ALR 25
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre (1978) 140 CLR 216
1 citation
Jump To
Cite 1 - (1978) 140 CLR 216
Invisalign Pty Ltd v SmileDirectClub LLC (2023) 166 ACSR 215
1 citation
Jump To
Cite 1 - (2023) 166 ACSR 215
Paula Susan Chappell as Executor of Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205
1 citation
Jump To
Cite 1 - [2021] WASCA 205
Super Start Batteries Pty Ltd v Shearer [2023] QDC 241
1 citation
Jump To
Cite 1 - [2023] QDC 241
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 A.L.R 177
1 citation
Jump To
Cite 1 - (1982) 42 A.L.R 177
Wang v Hur [2024] QCA 126
2 citations
Jump To
Cite 1 - [2024] QCA 126
Cite 2 - [2024] QCA 126

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.