London v Reynolds[2006] QDC 380

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a decision of the Commercial and Consumer Tribunal given on 25 October 2005, when an order was made under s 470 of the Property Agents and Motor Dealers Act 2004 (“the Act”) for the payment to the respondent as claimant of a particular sum out of the fund established under that Act, and that the appellants reimburse the fund in respect of that amount.  A notice of appeal was filed in this court on 17 November 2005.  Apart from resisting the appeal on its merits, the respondent has submitted that there is no competent appeal before this court.  In order to understand that point, it is necessary to have regard to the terms of s 100 of the Commercial and Consumer Tribunal Act 2002, and the notice of appeal which was filed.

Preliminary point – validity of appeal

2. [2]
   Section 100 of that Act provides, so far as is relevant:

“(1) A party to a proceeding before the Tribunal may appeal to the District Court against a decision of the Tribunal, with the court’s leave, only on the ground of –

1. (a)
   error of law; or

2. (b)
   excess, or want, of jurisdiction.

3. (3)
   An appeal must be filed within 28 days after the decision takes effect.

3. (4)
   An appeal must –

1. (a)
   be accompanied by the Tribunal’s decision and reasons for decision, if any; and

2. (b)
   refer to the Tribunal’s decision and reasons for decision, if any, and any other relevant material and state the grounds for the application.

3. (5)
   The Tribunal is not a party to the appeal but the party appealing must serve a copy of the appeal and supporting documents on the Tribunal within seven days of filing the appeal in the District Court.

3. (6)
   On an appeal, the District Court may do any of the following –

1. (a)
   confirm, annul, vary or reverse the Tribunal decision; or

2. (b)
   remit the case to the Tribunal for further hearing or rehearing; or

3. (c)
   make consequential or ancillary orders or directions …”

3. [3]
   When the decision takes effect is determined by s 92 of that Act; in essence, it takes effect when the parties to a proceeding before the Tribunal are aware of the decision.  If the parties are present when the decision is given, it takes effect then, but if one or more parties are not present it takes effect when the parties not present are served with the decision, that is when the last to be served is served.  It appears that neither party was present at the time the decision was delivered.  There is a notation on the back of the file copy of the decision of the Tribunal which is sought to be challenged on appeal that on 26 October 2005 a copy was posted to each of the respondent and the appellants’ agent.  That suggests that they would have been served on 27 or 28 October, though it may have taken longer to reach the respondent, because his address is not in Brisbane.

4. [4]
   On any view, however, the notice of appeal was filed within 28 days of the decision taking effect.  The respondent’s point is that the notice of appeal was ineffective, because the appeal is only by leave, and leave had not been obtained by the time when that notice of appeal was filed.  Reference was made to the decision of the Full Court in Johns v Johns [1988] 1 Qd R 138 where Williams J with whom the other members of the court agreed said at p 142, in relation to an appeal by leave from the District Court to the Full Court:

“Order 70 rule 34 of the Rules of the Supreme Court as amended in October 1984 provides that a ‘party appealing, either by leave or as of right from a judgment of a District Court, shall institute an appeal in accordance with order 70 rule 2 within the time prescribed in rule 334 of the District Court Rules.’  Properly construed that rule, in my view, requires the leave to be obtained before the appeal is instituted in accordance with O 70 r 2, otherwise it cannot be said that there is an appeal by leave.”

5. [5]
   That decision was followed by the Court of Appeal in Jiminez v Jayform Contractors Pty Ltd [1993] 1 Qd R 610 at 612.  It may be noted, however, that the decision was given in a context where the time within which the appeal was to be filed was fixed by the District Court Rules, and therefore could be extended by a District Court judge under r 375 of those rules, or by the Supreme Court under O 90 r 6 of the Supreme Court Rules, because the limitation was picked up and applied by O 70 r 34 of the Supreme Court Rules.  The practical effect, therefore, was that a failure to file the notice of appeal within time was not fatal to an appeal, and indeed it was common in practice under those rules for the application for leave to appeal to be decided well after the expiration of the period of 28 days.

6. [6]
   There is a significant difference in the present case, because the time fixed by s 100(2) is fixed by statute, and there is no power under that or, as far as I am aware, any other Act to extend that time.^[1]  If s 100(2) were to be interpreted the same way, it would mean that it would be essential for any application for leave not only to be made but to be heard and determined in sufficient time to enable the notice of appeal to be filed within the 28 day period, without any capacity for any court to extend that period.  That would be an unlikely interpretation; it would certainly be a strikingly inconvenient interpretation of the provision.

7. [7]
   There was some consideration of the operation of s 100 by the Court of Appeal in Tamawood Ltd v Paans [2005] 2 Qd R 101.  Keane JA, with whom the other members of the court agreed, was particularly concerned with the correct interpretation of s 100(8), but for the purpose of determining this, gave some consideration to the process established by s 100 generally.  In particular, his Honour said at [42]:

“It is to be noted that s 100(3) provides for the time within which ‘an appeal must be filed’.  In speaking of ‘an appeal’ as something to be filed, this provision is plainly concerned to speak of the initiating process.  Similarly, s 100(4) provides for the documentation which must accompany ‘an appeal’.  In addition, r 784 of the Uniform Civil Procedure Rules 1999 with which these provisions of the Act are linked, prescribes steps necessary for the formal initiation of an appeal and in this context, the reference in s 100(8) to ‘the costs of the appeal’ can sensibly be seen to refer to the costs involved in the formal processes required to initiate an appeal as distinct from the legal costs of representation.”

8. [8]
   Rule 784 of the UCPR provides that an appeal from an entity other than a court is started by filing a notice of appeal in the registry of the District Court:  sub‑rule (1).  What is required by way of a notice of appeal is identified by r 786:  the notice of appeal must be in the approved form (sub‑rule (1)), and, “If the leave of the court is required, the proceeding must be commenced by filing a notice of appeal subject to leave in the approved form.”:  sub‑rule (5).  Because of the requirement in s 100(1) of this Act for leave, it follows that an appeal from the Tribunal to the District Court is commenced by filing a notice of appeal subject to leave.  That is the correct form of the initiating document.  This is one of the initiating processes identified in r 8(2).  The form prescribed for this is form 97.  It plainly contemplates that the consideration of whether to grant leave will occur after filing of that “notice of appeal subject to leave”.

9. [9]
   In this respect, the scheme laid down by the rules in relation to appeals subject to leave in the District Court differs from the scheme in relation to appeals to the Court of Appeal by leave of that court; in that situation, the process is initiated by an application for leave to appeal. But in the District Court, the process is properly initiated by a notice of appeal subject to leave. The purpose of having a notice of appeal subject to leave is to avoid the situation which previously obtained in the District Court, where there was one file created for an application for leave to appeal, and then, if leave were granted, a separate file was created for the appeal, so that either all the documents filed in the first file had to be filed again, or care had to be taken to ensure that both files were available on the hearing or indeed any subsequent mention of the appeal. That was not efficient.

10. [10]
    This arrangement was in place prior to the enactment of the 2002 Act. It is clear that the Court of Appeal had in mind that what had to be filed under s 100(3) was the initiating process specified by the UCPR, which is a notice of appeal subject to leave.  That is inconsistent with the application to an appeal to the District Court from the Tribunal of the reasoning in Johns v Johns (supra).  In my opinion, because of the difference in the significance of the time limit and because of the arrangement in place under the UCPR prior to the enactment of the 2002 Act, the reasoning in Johns v Johns does not apply to an appeal from the Tribunal to this court, but my opinion on the subject is really of no particular consequence, because it seems to me necessarily to follow that what was said by the Court of Appeal in Paans to which I have referred that that is the situation.  Accordingly, the preliminary objection raised by the respondent is misconceived.

11. [11]
    There remains the difficulty that there has been a failure to file a notice of appeal subject to leave, in the form required by r 786(5).  What was in fact filed was in form 64, the form for a notice of appeal to the Court of Appeal, but with appropriate modification.  It made no reference to leave to appeal, no doubt because leave had not been obtained, and form 64, following the Court of Appeal practice, assumes that any necessary leave has been obtained prior to filing the notice of appeal.  It follows there was a failure to comply with r 786 as to the form of the notice of appeal, but this is an irregularity only:  UCPR r 371, which provides that the irregularity does not render a document a nullity.  What happened in this case was that a “notice of appeal” was filed as required by r 784, though the notice of appeal did not comply with the requirement as to form in r 786.  Nevertheless, the important elements necessary for a notice of appeal were included in the notice which was filed, including the requirement in s 100(4)(b) that the “appeal” state “the grounds for the application”.^[2]

12. [12]
    The usual practice which follows on an appeal from the Commercial and Consumer Tribunal to this court is that the question of whether to grant leave is dealt with together with the argument on the appeal; this is a convenient practice, and has the effect of minimising the legal costs for the parties of the appeal process. It is still necessary to decide whether or not to grant leave, and that is a separate question to whether or not to allow the appeal; of course the latter only arises if leave is granted. For practical purposes, therefore, the parties were in the same position on the hearing of this appeal as if the appeal had been instituted in the correct form. In those circumstances, I am content to proceed on the basis that it is to be treated as if it were so instituted, though the irregularity may have some significance in relation to costs.

13. [13]
    After this point was taken on behalf of the respondent, an application was filed on behalf of the appellants for leave to amend the notice of appeal to include an application for leave to appeal; another judge adjourned that application to the date for hearing the appeal. When the matter came on before me an amended application was filed, seeking an order under r 371, or r 377, for leave to amend the notice of appeal, and leave to appeal, to cover every eventuality.

14. [14]
    It was also submitted on behalf of the respondent that it was not open to the court to give leave to amend the grounds of appeal after the time for filing a notice of appeal had expired. This was on the basis that there was no clear provision in the 2002 Act for amendment of the notice of appeal. But the appeal was to the District Court, and when the legislature refers a question of a judicial nature to an existing established court, the ordinary inference is the legislature intends to take the court as it finds it with all the incidents of its operation.^[3]  One of the incidents is that it can amend the notice of appeal.^[4]  The rules give an extensive power to amend the notice of appeal, which may be exercised at any time.^[5]  Ultimately, however, the appellant did not press for leave to amend the notice of appeal in relation to the grounds, and just sought to amend the notice in relation to the request for leave to appeal, in effect to bring it more clearly into line with the requirement for the appropriate forms.  The appeal was then argued by reference to the existing grounds.

Grant of leave

15. [15]
    With regard to the question whether leave should be granted,^[6] the appeal raised a question of some importance as to the operation of s 470 and s 574 of the Act, in respect of which there was at the time when the appeal was argued apparently no decision of this or a higher court.  As will appear, for reasons expressed in relation to another appeal in which judgment is delivered contemporaneously with judgment in this appeal, in my opinion the interpretation adopted by the Tribunal was wrong, and on the correct interpretation of s 574 and the application of s 470 the respondent was not entitled to claim reimbursement from the fund, nor were the appellants liable to reimburse the fund.  Accordingly, the appeal must be allowed.  That is in itself sufficient reason to grant leave to appeal, but apart from that there were some other matters of general application in relation to the operation of the Act argued, and in all the circumstances, it is in my opinion appropriate to grant leave to appeal.

Essential facts

16. [16]
    The appellants at the relevant time were licensed motor dealers under the Act. The second appellant entered into a contract of sale with the respondent on 3 December 2002 to sell a motor vehicle described as a 1965 Jaguar Mark II sedan.  That vehicle had been advertised by that description by the appellants in a magazine called “Unique Cars”, as a result of which the respondent made contact with the appellants, inspected the vehicle, and negotiated a purchase price.  There was a finding by the Tribunal that both appellants had represented that the vehicle in question was a 1965 Jaguar Mark II sedan, and that that was a misrepresentation because the vehicle in question did not meet that description.

Reasons of Tribunal

17. [17]
    The Tribunal considered that s 574 “does not impose strict liability”.  The Tribunal, however, did interpret it “in a manner similar to the interpretation given by the courts over the years in the context of false or misleading representations and trade practices legislation.  In this regard, the established position is that the test of whether a representation is false or misleading is objective. … Intention is not a necessary requirement and a representation will be misleading if it induces or is capable of inducing error.”  Subsequently, the Tribunal said that it did not matter what the first appellant believed, but whether the statement was false as contrary to fact.  The Tribunal went on expressly to note that s 24 of the Criminal Code was not really relevant.  The Tribunal noted, correctly, that “claims under s 470 for a contravention of s 574 are civil claims for damages and do not rely on any proven prosecution of a licensee or a registered employee for an offence under s 574.”  The Tribunal appears to have proceeded from that to the conclusion, with which I differ, that s 24 was therefore irrelevant to the question of whether there had been a “contravention” of s 574 for the purposes of s 470.

18. [18]
    The Tribunal found that there had been such a contravention for that purpose, and that the respondent had suffered a financial loss as a result, because the value of the vehicle was less than the price paid for it. Damages were assessed at the difference between the price paid and the market value as assessed by the evidence of a witness accepted by the Tribunal.^[7]  It will be apparent that the conclusion that s 24 was of no application was crucial to the reasoning of the Tribunal.  For reasons given in To v Chief Executive, Department of Tourism etc [2006] QDC, delivered today, that conclusion was wrong in law.  In order to determine whether there has been a contravention of s 574, it is necessary to consider whether the person alleged to have contravened the section had a defence under s 24, modified by the reversal of onus in relation to the proof of the existence of reasonable grounds in s 574(5).^[8]  For those reasons, it follows that this decision cannot stand.^[9]  In order to determine how the appeal should be dealt with, it is necessary to determine whether on the evidence before the Tribunal more than one decision was reasonably open.

Evidence

19. [19]
    The Tribunal had before it the report of an inspector of the Department of Tourism, Fair Trading and Wine Industry Development dated 10 May 2005; it does not appear that the inspector was cross‑examined.  The inspector’s report supported the respondent’s claim.  It does not appear that there was oral evidence by the appellants before the Tribunal, although the inspector’s report did include a written response from the solicitor for the appellants dated 14 October 2004.  That document alleged the vehicle was sold on consignment by an owner and it was obviously not an authentic original Mark II Jaguar.  A letter from the owner was enclosed, which pointed out that the vehicle had a large number of modern features which would not have been found in an original Mark II Jaguar, which dated from the 1960s.  The vehicle was at the relevant time registered in the name of the owner, and was registered as a 1965 Jaguar Mark II pre-1970 sedan.^[10]  The chassis number was given as “1A7643BW” and the engine number as “LA42898”.

20. [20]
    There were also statements by the first appellant and his wife filed in the Tribunal dated 8 September 2005.  In the statement of the first appellant, he said that the vehicle was described to him by the owner as a Jaguar 3.8 litre Mark II sedan.  He was told it was genuine, and that a lot of money had been spent on a total restoration.  The registered number was 65JAG.  It was described as a Jaguar Mark II 3.8 with some modifications to make it a reliable, comfortable, daily-use vehicle.  It is not necessary to list these modifications; they related essentially to the internal comfort and operational convenience of the vehicle, rather than its external appearance.  They made it function more like a modern luxury vehicle, though on the outside it looked like a 1965 Jaguar.  It had the badge and emblem of a Jaguar.^[11]

21. [21]
    The first appellant checked an identification book in order to confirm that the engine in the vehicle was in fact a 3.8 litre Jaguar engine, though it appears that was because he was aware that there were different sizes of Jaguar engines in use for this model, rather than because of any particular doubt that it was a Jaguar vehicle.  He said he did not check the chassis number, although he did see a number “007343BW” stamped on the identification plate under the chassis number, and that a number was stamped near the bonnet lock which was illegible because of paint from the restoration process.  He did not want to scrape the paint off, as that would have damaged the paintwork in that area.

22. [22]
    He said that, following negotiations with the respondent, he paid a deposit, and subsequently attended the premises on 3 December 2002 where he examined and test-drove the vehicle and saw the paperwork that was available in relation to the restoration costs.  The car was paid for, the documentation was completed, and the respondent and his wife drove away.  The statement from the appellant’s wife did not contain anything which touched on the appellant’s state of mind in relation to the vehicle, or what information was reasonably available to the appellant.  The first appellant was not cross‑examined before the Tribunal.

23. [23]
    The evidence of the respondent did not directly touch on the question of the knowledge of the appellants, or of what reasonable grounds they had for any belief as to the identity of the vehicle. The statement of the respondent to the inspector on 1 February 2005 said that he found out that the car was a Daimler when he tried to join the Jaguar drivers club and was told that what he had was a Daimler not a Jaguar.  He put before the inspector a letter from the club dating officer dated 24 March 2004 which referred to the vehicle as a “Jaguar engine Daimler …”, referring to the engine number and chassis number mentioned earlier.  It was said to have been manufactured between October 1962 and September 1967.

24. [24]
    He also put before the inspector a letter dated 26 August 2004 from Mr Hughes, the editor of the Jaguar magazine, who said that the Daimler V8 was produced in the 1960s by Jaguar Cars after they secured the ownership of Daimler in 1960.  They “adapted their existing Mark II model to run with a Daimler V8 engine and added luxury items.”  He expressed the opinion that their prestige level was the equivalent of the least desirable model of the Mark II type, and said “the Daimler body is clearly distinguished by bearing the chassis numbers 1A1001 and also 1K1001 through to 1A14376 and 1K5779.”  He then referred by way of contrast to Jaguar numbers which for the 3.8 litre version began with 200,001.  A further letter from Mr Hughes, dated 27 July 2005, also put before the Tribunal, stated:

“A Daimler body, whilst very similar to a Mark II Jaguar, will never be considered to be in the same value range as a Mark II 3.8 manual and is stamped as a Daimler by the factory to identify it distinctly from a Jaguar.”

25. [25]
    He added that the current vehicle is a hybrid, and could not sit anywhere near the value range of a genuine original Mark II 3.8 manual.  He did not say where or how conspicuously the body was stamped or otherwise identified as a Daimler by the factory.

26. [26]
    There was also before the Tribunal a letter from Mr Cuthbert, a valuer of motor vehicles, dated 26 August 2005.  Mr Cuthbert said that the chassis number revealed the vehicle was in fact a Daimler, indicated by the prefix “1A”.  He noted that a feature which is important in relation to the value is whether the car has “matching numbers”, that is that the chassis number, the engine number and cylinder head number all match the identification plate affixed at the time of manufacture.  He said both Jaguar and Daimler vehicles were constructed by Jaguar Cars Limited and “the differences in their body and trim were minor.”  He said that the mechanical components in the Daimler were considered to be inferior and they were prone to malfunction.  He expressed an opinion as to the value of the vehicle, and as to the value it would have had if it were a Jaguar in the same condition, effectively double.  He added that it could not have been registered in some states as a Jaguar.  Mr Cuthbert and Mr Hughes both gave oral evidence, but that did not touch on the question of how obvious it would be that this was a Daimler rather than a Jaguar vehicle.

27. [27]
    The appellants put in a statement by a Mr Hodson, who gave some valuation evidence in relation to the vehicle in its current state, which the Tribunal did not accept.  Mr Hodson was cross‑examined, in the course of which he said that for both cars the actual body, the chassis and everything else, all came out of the one mould in the same factory in England:  p 27.  He was asked whether the way to identify a vehicle of that calibre was to use the chassis number and responded (p 27):

“I look to that chassis number and I look for engine numbers and any other identifying stamps which may be on the chassis.  There is also an internal panel which I think you are aware of down beside the engine.”

28. [28]
    It does not follow from this evidence that this ought to have been apparent to someone in the position of the appellants.

29. [29]
    In this matter overall it seems to be a fair inference from the evidence of the first appellant that he believed it was a Jaguar vehicle. It appears that he is the person whose state of mind is relevant also to the belief of the second appellant. As to whether he had reasonable grounds for that belief, that depends essentially on the significance that ought to have been attributed by someone in his position to the chassis number. It seems fairly clear that the essential way in which one distinguishes a Jaguar and a Daimler is simply by reference to the chassis number. Although the evidence is not entirely clear, it does seem that the body shape and panels and so on are the same, so that otherwise it is only by a detailed investigation that one can determine whether a particular vehicle is a genuine Jaguar or a Daimler which has been done up to look like a Jaguar.

30. [30]
    I think it is clear enough that all the superficial indications were that it was a Jaguar. There is the further consideration that the appellant checked up on the engine and confirmed that it was a genuine Jaguar engine. It does appear that the significance of the chassis number is something known by Jaguar enthusiasts, but there was no evidence, and it is not clear, that a dealer ought to be alive to the significance of this. When a vehicle looks like a Jaguar and is finished and presented like a Jaguar, and registered as a Jaguar, and when its engine checks out to be a genuine Jaguar engine, it seems to me that there are reasonable grounds for a belief that it is a Jaguar, even though the chassis number was known and even though it is possible for a person who had sufficient specialised knowledge of these vehicles to determine that that was the chassis number of a Daimler rather than a Jaguar.

31. [31]
    I note that the respondent, who obviously had some interest in these vehicles, did not himself detect from the chassis number that the vehicle he was looking at was a Daimler rather than a Jaguar. It does seem that the respondent had a certain amount of interest in vehicles of this kind, and that suggests that this sort of information is perhaps not all that readily available except to the more limited category of real enthusiasts. Attached to the statement of the respondent of 1 February 2005 is a page from the 83^rd edition of the Jaguar magazine, a “buyer’s guide” (Attachment PWR07), which contains some information about chassis numbers, but does not refer to the chassis numbers of a Daimler chassis, and some information about engine numbers which is consistent with the engine number of this vehicle.  The chassis number on the vehicle is not consistent with that information, though the suffix BW is, as indicating an automatic.  There is no evidence that this was something which the appellants knew about, and I mention this simply to indicate that this sort of information might not have been all that readily available outside the area of more specialised knowledge.

32. [32]
    Overall, it does not appear that very much attention was paid to this point at the hearing, but so far as it goes, the evidence suggests that the appellants had a deal of information available to them which amounted to reasonable grounds for a belief that this was a Jaguar vehicle, and the evidence does not indicate that the information which revealed that it was not ought to have revealed that to a person in the position of the appellants.

33. [33]
    The matter is complicated by the fact that a certain amount of the evidence and argument during the hearing was directed to the proposition that it was obvious that this vehicle was not in original condition. There was evidence that it was obvious on looking inside that the vehicle was not in the state of an original 1960s Jaguar. That is certainly the case; the vehicle has a number of features which serve to make it a more practical, modern motor vehicle, while at the same time retaining the external appearance of a Jaguar. It seems to be the sort of vehicle spoken of at one point in the “Buyer’s Guide” referred to earlier which, among other things, said:

“Power assisted steering was a later option, very rare though, but almost essential in this day and age.  Air‑conditioning can be added, and on some of the delightfully refurbished Mark IIs available today, all of these things are delicately and inconspicuously integrated, along with other modern conveniences such as power-assisted windows.  Perhaps these modern variations should be treated differently to the standard Mark IIs, but whichever way you may choose to go, the shape is classic …”

34. [34]
    But that is not really the crucial point here. The crucial point is whether on the evidence any conclusion was reasonably open to the Tribunal other than that the appellants had discharged the onus of showing that they had reasonable grounds for a belief that this was a Jaguar motor vehicle. In all the circumstances on the evidence led before the Tribunal, such a conclusion was not only open to the Tribunal, it was the only conclusion reasonably open. Accordingly, on a proper application of the statute, applying s 24, modified in accordance with the requirements of subsection (5), would have led the Tribunal inevitably to the conclusion that the application should be dismissed.^[12]  It follows that there is no point ordering a re-trial; the appeal should be allowed and I should order in lieu that the application be dismissed.

Other matters argued – passing on information

35. [35]
    In case a different view may be taken elsewhere, it is appropriate that I deal with other matters which were raised in the course of the appeal. It was submitted on behalf of the appellants that all that they were doing was passing on information which had been provided to them, and that the principle in Yorke v Lucas (1985) 158 CLR 661 applied.  In that case the majority at p 666, after noting that s 52 did not require any intention to mislead or deceive, went on to say:

“That does not, however, mean that a corporation which purports to do no more than pass on information supplied by another must nevertheless be engaged in misleading or deceptive conduct if the information turns out to be false.  If the circumstances are such as to make it apparent that the corporation is not the source of the information and that it expressly or impliedly disclaims any belief in its truth or falsity, merely passing it on for what it is worth, we very much doubt that the corporation can properly be said to be itself engaging in conduct that is misleading or deceptive.”

36. [36]
    That decision was applied by the Full Federal Court in the Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525.  In that case, the appellant sold two paintings to the respondent in the course of its business as an art gallery.  The paintings were sold “on consignment” from an owner, and the respondent knew that.  In connection with the sale the appellant gave the respondent the history of the paintings as provided by the owner.  The paintings proved to be forgeries, and the respondent sued the appellant for breach of s 52, and succeeded at first instant, but the Full Court allowed the appeal.  The court said on p 529 that it was not enough to show that the respondent had relied on the answers given as to the provenance of the paintings:

“There remained the question whether the circumstances were such as to make it apparent that the appellant was not the source of the information and that it disclaimed any belief in its truth or falsity, merely passing it on for what it was worth.”

37. [37]
    It was noted at p 531 that the appellant had believed what he was told and was passing on, but the court said that that in itself did not make the statement misleading.  It continued:

“In the particular circumstances of the case, we think it should have been held that nothing said or done on behalf of the appellant should have been taken by Mr Plummer to convey more than that the paintings’ owner had represented them to have a certain origin and history; the appellant claimed no more knowledge of the matter than that.  It stood in the position of an intermediary between [the owner] and [the respondent], who, like the appellant, did not check [the owner’s] assertions and assumed them to be true.  The matter would raise quite a different issue if [the appellant] were shown to have done, or purported to do, anything other than explain what [the owner] had claimed to be the facts.”

38. [38]
    In my opinion, that situation is distinguishable on the facts from the situation in the present case. This was not a case where expressly or impliedly the appellants were simply passing on information that had been provided to them, for what it was worth, with or without any personal belief in the information. In the first place, there was no finding that the respondent knew the appellants had the vehicle on consignment, and it appears that in the course of the proceedings before the tribunal the appellants abandoned reliance on the proposition that they had the vehicle only on consignment. In the second place, although to some extent the representations made in relation to the vehicle were simply passing on information from another source, such as by providing photocopies of documents including a copy of the registration certificate, the particular representations relied on by the Tribunal, the statement in the advertisement and the statement in the contract of sale, were specifically representations by the appellants. Overall, this is not a case on all the evidence where the appellants were really saying no more than that they had been told that this vehicle was a Jaguar; the way in which the appellants were behaving, as found by the Tribunal in this case, really was that they were saying the vehicle was a Jaguar. On that basis, the principle in Yorke v Lucas has no application.

Reliance

39. [39]
    It was further submitted that there was no finding that the respondent had relied on anything said by the appellants in relation to the identity of the vehicle, and that there was no evidentiary basis upon which such a finding could properly be made. Section 470 refers to a person suffering financial loss “because of the happening of” (relevantly) contravention of the section, and it further follows that the entitlement to claim in respect of the loss will only arise when the financial loss is caused by the happening of the relevant event.  Where the relevant event was a contravention of s 574, it follows that it is necessary for the Tribunal to conclude that the false or misleading representation caused financial loss to the claimant for a claimant to succeed.  None of these propositions was contentious between the parties before me.

40. [40]
    The basis of the respondent’s claim was identified in paragraph 2 of the Tribunal’s reasons as a financial loss of an amount of half the money paid for the vehicle, on the basis that it was worth approximately half what a Mark II Jaguar is worth.  The Tribunal dealt with the question of whether there had been a contravention of the section.  It went on “to consider whether [the respondent] suffered any financial loss as a result and, if so, to quantify that loss.” [para 36].  After some discussion of the evidence as to value, and after concluding that the evidence of the respondent’s valuer Mr Cuthbert had been accepted, the Tribunal went on to find (para [50]) that the maximum value of the vehicle was $35,000 and, as the respondent paid $56,500 for it “relying on the false representation that it was a Jaguar Mark II sedan, I am satisfy that his financial loss was as a result of the contravention of s 574 of the Act is $21,500.”

41. [41]
    In the circumstances, although there was not a detailed discussion on the question of reliance and causation, there were findings of reliance on the part of the respondent, and that there was a particular loss as a result of the contravention. Those are the findings that were necessary and appropriate for the claimant to succeed, and in circumstances where the findings are reasonably straightforward, it does not seem to me that anything more in the way of reasoned discussion on the part of the Tribunal was necessary.^[13]

42. [42]
    As to whether reliance was adequately supported by the evidence, it was pointed out that there was not an express statement as to reliance in either of the statements made by the respondent which were before the Tribunal. That, however, is not in my opinion of any great importance. An express assertion of reliance is not necessary in order to support a finding of reliance, nor will an express assertion of reliance necessarily be sufficient to support such finding. As a general proposition, “if it is proved the defendants with a view to induce the plaintiff to enter into a contract made a statement to the plaintiff of such a nature as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a fair inference of fact that he was induced to do so by the statement.”^[14]  The respondent was a person who wanted to buy a Jaguar, and in such circumstances a representation that a particular vehicle is a Jaguar is a representation calculated to induce the purchase of that vehicle.  In circumstances where he did then purchase the vehicle, the inference is readily available that he did so in reliance on that representation.

43. [43]
    The appellants referred to some evidence in the statement of Mr London that in the course of the conversation when he first met the respondent and took the vehicle for a test drive, the respondent then said that he had inspected some 30-odd vehicles and done extensive research into the types of Mark II Jaguars, and Mr London had made the comment that the respondent probably knew more than he did, as he was a “Benz man”:  para 18.  This conversation was not put to the respondent in cross‑examination, and it does not appear this point was raised by counsel for the appellants in the course of submissions before the Tribunal.  In these circumstances, where the issue is essentially factual, I do not think the point should be raised for the first time on appeal.  In any case, even a person who has some familiarity with a Jaguar of this type might well rely on what he had been told by someone else that a particular vehicle was a Jaguar Mark II, and as a result not personally investigate the question of whether or not the vehicle was a Jaguar Mark II.  In all the circumstances on the evidence in my opinion the Tribunal was entitled to find as it did that the respondent relied upon what he was told.

Was there a representation?

44. [44]
    At one point it seemed to be submitted that there had not been any representation as to the identity of the vehicle at all. I do not think that that point can be sustained; the vehicle was advertised as a Mark II Jaguar, and described in those terms in the documentation provided by the appellants to the respondent.  In my opinion that clearly amounts to a representation as to the identity of the vehicle, and the Tribunal was entitled to find that.  This submission was perhaps related to the Yorke v Lucas argument referred to earlier.

45. [45]
    It occurred to me in the course of this hearing that there did not seem to be any clear evidence that anyone had actually expressed the opinion that this was a Daimler rather than a Jaguar vehicle, or at least a Daimler rather than a Jaguar chassis, on the basis of an actual examination of the vehicle. The evidence from the respondent’s witnesses seems to be based simply on the chassis number, a chassis number as stated in documentation rather than a chassis number which was actually found on the vehicle. This is not a matter of great concern, since there was certainly evidence admissible against the appellants that the vehicle had that chassis number; there were documents completed by them in which that chassis number was attributed by them to this vehicle, and it does not appear that there was any real dispute at the time that the chassis number recorded in those documents was the chassis number of this vehicle. Nevertheless, it would I think have been better if there had been some evidence that some appropriately qualified person had actually examined the vehicle and could say that it was a Daimler chassis, or at least that the chassis really had the chassis number attributed to it in the documents. In view of the amount of work that had been done on this vehicle, I suppose it is possible that the vehicle now has a different chassis from that recorded in the documentation, or perhaps the documents are based on a number on a replacement part which had been introduced into the vehicle. However, there is no basis upon which I can interfere with the decision because of this sort of speculation.

Was there a loss?

46. [46]
    As to the question of whether the respondent suffered a loss, that depends on what the consequence was of the contravention. If the representation led the respondent to purchase a vehicle he otherwise would not have purchased, and in the circumstances that inference was reasonably open to the Tribunal, the loss that the respondent has suffered is to be arrived at by comparing the position he would have been in if there had not been a contravention with the position he is in now.^[15]  If there had not been a contravention, then the vehicle would not have been purchased, so he would not have paid the purchase price.  On the other hand, it is necessary to deduct the real value with what he got.^[16]  Accordingly, the Tribunal had to find the difference between the price paid and the value of what was obtained.

47. [47]
    When assessing value, the Tribunal acted on the evidence of Mr Cuthbert, and it was entitled to do so.  That he had not seen the vehicle was a matter which went to the weight of his evidence, but the Tribunal would have been able to appreciate the significance of that.  He certainly appeared to be of the view that the modifications made to the vehicle departing from the authentic state of the vehicle as when new would not, or at least would not necessarily, enhance its value, and perhaps would even detract from its value.  Whether that was so depends on the state of the market; there may well be subtle differences in the market between those for whom the authenticity of the vehicle is of supreme importance, and those who actually want to use it as a modern and reasonably comfortable motor vehicle to drive.  Which market dictates the value is obviously a matter for the expertise of the valuer.  It does not render his evidence inadmissible, or require the Tribunal to reject it.

48. [48]
    The Tribunal ultimately thought that the failure of Mr Cuthbert to inspect the vehicle was not of great moment:  para 44.  It was submitted that this involved an error of reasoning on the part of the Tribunal, but I do not agree.  No doubt the Tribunal took this view principally because it did not consider that there was any acceptable evidence to contradict the evidence of Mr Cuthbert in relation to the question of the value of the vehicle.  Even if there were reasons why the weight given to Mr Cuthbert’s evidence was limited to some extent, it was still enough to outweigh any other evidence on the subject.

49. [49]
    It was submitted that the best evidence of what the vehicle was worth was a combination of what was actually spent on it to restore it and the fact that it had both a Jaguar and Daimler pedigree. But it is clear that the evidence of what had been spent to restore it was not a good indication of value, if only from the fact that the respondent purchased the vehicle for a fraction of that amount. Indeed, when it was advertised for sale by the appellants, they emphasised that it was being offered at far less than what had been spent on it. Whether having both Daimler and Jaguar pedigree enhanced the value of the vehicle is a matter for expert evidence, and in that respect the evidence which was accepted by the Tribunal was to the effect that it did not. In my opinion, the conclusion in relation to the value of the vehicle was fairly open to the Tribunal on the evidence and no error of law has been shown in the acceptance of that evidence by the Tribunal.

50. [50]
    For the reasons given earlier, therefore, I declare the notice of appeal effectual under r 371, give leave to appeal, allow the appeal, set aside the decision of the Tribunal, and in lieu thereof, the claim of the respondent is rejected.   I will hear submissions as to the costs of the appeal.