Supply Link Ltd v Hannan[2025] QDC 119

DISTRICT COURT OF QUEENSLAND

Contents

Summary

1. [1]
   In this proceeding, the plaintiff (Supply Link) – a company based in New Zealand - originally sued a company controlled by Mr Hannan (Hop2It Container Trades Pty Ltd – Hop2It CT) for debt and for damages for breach of contract and for misleading or deceptive conduct and sued Mr Hannan, as second defendant, for damages for engaging in misleading or deceptive conduct.
2. [2]
   Hop2It CT was struck off as a company in 2024, during the interlocutory stages of this proceeding, so Mr Hannan became the only defendant (although the title of the proceeding has not been altered, except at the time of delivering these reasons).  Supply Link continued with its claim against Mr Hannan.
3. [3]
   Supply Link alleges that, in July 2020, it contracted with Hop2It CT to purchase 33,000 boxes (one container load) of nitrile surgical gloves, for the price of US$229,350.  It transmitted two payments totalling that sum to a bank account identified in the contract.  Hop2It CT never supplied the gloves, nor returned the money to Supply Link.
4. [4]
   Supply Link alleges that it entered the contract and made the payments in reliance on statements made by Hop2It CT in an email and an attached advertising flyer that an agent for Hop2It CT (then known as Sean Capet^[1]) sent to Supply Link, and on other oral statements made by that person and by Mr Hannan.  Supply Link alleges that those statements constituted representations that were misleading or deceptive, contrary to s 18 of the Australian Consumer Law (Queensland) (the ACL(Q))^[2] and, as it received nothing in return for its payments, it has suffered loss as a result of their conduct in making the statements.  It sues Mr Hannan for that loss, relying on s 236 of the ACL(Q).
5. [5]
   Mr Hannan denies liability on a number of grounds.  He denies making some of the alleged statements.  He denies that some of the alleged representations were made by statements that he admits.  He denies that some of the alleged representations have been shown to be misleading or deceptive.  He also denies that Supply Link relied on some of the statements or the alleged representations.  Therefore he denies that he has any liability to Supply Link. 
6. [6]
   Mr Hannan and Hop2It CT (before it was deregistered) also contended, in their defence, that the contract with Supply Link was for the purchase of five containers of gloves, which Supply Link had breached and therefore forfeited the money it had paid by way of deposit. They also contended that, if they had engaged in misleading or deceptive conduct, the claim was an apportionable claim and there were a number of concurrent wrongdoers, so that Hop2It CT and Mr Hannan were only liable for a proportion of any damages awarded to Supply Link.^[3]  However, Mr Hannan did not pursue these grounds at the trial, relying solely on his defences to the representations alleged.  It is therefore unnecessary to consider those allegations.
7. [7]
   The trial proper was conducted over three days: on 5 and 6 August 2024 (when Mr Hannan represented himself) and on 29 May 2025 (when he was represented by counsel instructed by solicitors).  In the first two days, Supply Link called its witnesses, who were cross-examined by Mr Hannan.  Supply Link then closed its case.  The trial was then adjourned before Mr Hannan began his evidence, because he became ill and was taken to hospital.  Thereafter, Mr Hannan belatedly filed a witness statement by him and a statement by another person – Mr Arun Ramachandran, who described himself as a company director, a chartered accountant and a business adviser to Mr Hannan.  Each statement was to serve as the evidence in chief of the witness.^[4]  On a number of occasions when the trial was relisted, Mr Hannan sought further adjournments on the grounds that he remained medically unable to cope with cross-examination and he was seeking to obtain legal advice and representation.
8. [8]
   Earlier this year, Supply Link decided not to cross-examine Mr Hannan or Mr Ramachandran.  The trial proceeded on 29 May 2025, with final addresses only.  Shortly before that day, Mr Hannan engaged new solicitors and counsel and Mr Crawford of counsel appeared for Mr Hannan on that occasion.
9. [9]
   For the following reasons, I find that:

   1. Mr Hannan engaged in misleading or deceptive conduct toward Supply Link, although not in every respect alleged by Supply Link;
   2. Supply Link relied on that conduct in making the contract with Hop2It CT and in paying the contractual price;
   3. as a consequence, having received nothing in consideration of those payments and not having been refunded any of the amount it paid, Supply Link has suffered loss;
   4. therefore Mr Hannan is liable to Supply Link for the amount of its loss.
10. [10]
    The payments were made by Supply Link in United States dollars.  It has not specified whether it wishes to be awarded damages in that currency, or in Australian or New Zealand currency.  Before I can give judgment, I will need to receive submissions or agreement as to the currency, the calculation of any interest to form part of the judgment, and costs.

Agreed facts

11. [11]
    Many of the basal facts are agreed on the pleadings.  It serves to set out those facts, which were mostly collated by counsel for Supply Link (Mr Sams) in a summary filed before the first day of the trial.
12. [12]
    Hop2It CT and other companies controlled by Mr Hannan under variations of the “Hop2It” name had previously carried on business from an office in West End.  Hop2It CT itself was not incorporated until early 2020.  It promoted itself as trading in the purchase and sale of personal protective equipment: relevantly in this case, nitrile gloves.
13. [13]
    On 29 June 2020, Mr McNamara emailed an advertising flyer to Supply Link.  The email address of the sender was [email protected].  In the body of the email, Mr McNamara said:^[5]

Hello fellow Australian Business,

We are an Australian import and export company operating in this sector since 2008.  We export Infant formula and all manner of high quality food and Australian made products.  We import food supplements for manufacture in Australia and hence our experience in Personal Protection Equipment (PPE).

We have direct contractual relationships with the largest factories in Vietnam and Thailand where we have an office operated by Australians to oversee the air and sea freight forwarding and SGS reporting of manufactured products for CIF or FOB delivery.

We would like to make you aware of our products by separate information packs and we have an office in Brisbane where Sean Capet our Import Specialist can help you with any inquiry you may have for PPE.

Because of our direct relationship with the manufacturer and our own brands, you can be assured you are not dealing with a middleman broker, and therefore we can provide you with both direct service from factory to your warehouse without any additional fees added for other virtual handlers.

We look forward to hearing from you for wholesale or retail inquiries.

Take care!

Kind regards

Sean Capet

14. [14]
    The flyer attached to the email^[6] is reproduced at the end of these reasons.
15. [15]
    The contents and distribution of the email and the flyer were directed, caused and approved by Mr Hannan in his capacity as the sole director of Hop2It CT.^[7]
16. [16]
    On 8 July 2020, Mr Glen Cunningham^[8] had a telephone conversation with Mr McNamara, in which Mr Cunningham said that Supply Link was interested in purchasing nitrile gloves and Mr McNamara said to the effect, “We have five containers of nitrile gloves available.”
17. [17]
    During a telephone conversation between Mr Niall Manning (the director of Supply Link), Mr Cunningham, Mr Hannan and Mr McNamara on 11 July 2020, Mr Hannan said to the effect, “We have five containers of nitrile gloves available.  The only thing left to do is the SGS pre-shipment inspection of the stock.”^[9]
18. [18]
    On 12 July 2020, Supply Link sent to Hop2It CT a purchase order for 33,000 boxes of gloves for a total price of US$229,350.^[10]
19. [19]
    A written contract was subsequently executed.  (When that happened and, more importantly, what number of gloves the contract was for, are disputed on the pleadings but Supply Link’s allegation that the contract was for the same number of gloves and price stated in the purchase order appears to have been conceded by the time of the final addresses.)  That contract, originally providing for the sale of 105,000 boxes of gloves for a total price of US$729,750, was drafted by Mr Hannan, though some hand written amendments were made by Supply Link, limiting it to 33,000 boxes of gloves, before it was executed by Mr Manning for Supply Link.
20. [20]
    The contract required Supply Link to pay the purchase price by transferring funds to a particular bank account held in the name of Cape Byron Financial Services Pty Ltd trading as Cape Byron Global Remittances (the remittance account).
21. [21]
    By two transactions on 13 and 15 July 2020, Supply Link transferred the amount of US$229,350 to the remittance account.
22. [22]
    On 15 July 2020, US$169,987 was paid from the remittance account to an account of Huntingdale Pastoral Holdings Pty Ltd (Huntingdale, a company registered in Queensland), of which the sole director was Mr Kenneth Lewis.
23. [23]
    The gloves were never supplied to Supply Link and no money has been refunded to it.

Supply Link’s evidence

24. [24]
    Supply Link called three witnesses and tendered a number of documents as part of the trial bundle.  The witnesses were Mr Manning, Mr Cunningham and Mr McNamara.  The evidence in chief of each witness was by a statement that each affirmed in his evidence.  Each of them was then cross-examined by Mr Hannan.
25. [25]
    Mr Manning said that he lives in New Zealand and has worked in the import and export industry for 20 years.  Supply Link is primarily a computer supply company.  When COVID-19 hit, Mr Cunningham (whom he had known for about 10 years) suggested to him that they look to obtain supplies of products that were in demand as a result of the pandemic.  As a consequence, Mr Manning said he did a deal with a Malaysian company to buy a container of nitrile gloves.  He paid for the gloves, but they were never supplied, nor the money refunded.  He therefore became cautious in selecting who to do business with.
26. [26]
    Mr Cunningham drew Mr Manning’s attention to Hop2It CT’s email of 29 June 2020 attaching the flyer.  Mr Manning read them and understood from them that Hop2It CT had been operating for over 10 years and appeared to have been trading successfully in importing products to Australia and it was experienced with personal protective equipment (PPE).  It had direct contractual relationships with the manufacturers of the products it was advertising and it had offices in Vietnam and Thailand (where the manufacturers were situated) that were operated by Australian people.  Those people would oversee the transfer of goods from the factory to the ship, ensuring that everything went smoothly.
27. [27]
    Having read the material, Mr Manning said, he became interested in exploring the opportunity.  He believed that any deal with Hop2It CT would be effectively risk free, as it was a long-standing company based in Australia with experience in importing PPE, it had a direct relationship with the manufacturer and it had Australian staff in the manufacturer’s country to oversee the movement of products from factory to ship.
28. [28]
    Mr McNamara said that he had no particular knowledge of the matters set out in the email and the flyer.  Mr Hannan had effectively dictated and expressly approved the contents of the email and had provided the flyer to him.
29. [29]
    Both Mr Cunningham and Mr McNamara recalled speaking to each other by telephone:  Mr Cunningham said it was about a week after receiving the email with the flyer.  He recalled that he told Mr McNamara that Supply Link was interested in buying some gloves and Mr McNamara told him that Hop2It CT had five containers available.  Mr McNamara suggested that they all speak with Mr Hannan, which occurred a few days later.
30. [30]
    Mr McNamara produced some emails which he exchanged with Mr Cunningham on 10 July 2020.^[11]  In one email, Mr McNamara said that an order had just fallen over and Hop2It CT had floor stock in a container “ready for the High Sea.”  There were approximately 3,300 cartons at US$6.95 per box FOB or an extra US$0.40 CIF.  A purchase order was needed and funds had to be remitted to hold the stock.  In a later email he said that there were 105,000 boxes in the batch, so the price for all would be US$729,750.  He had another urgent order for one container, with the buyer viewing sales documents in the morning.  He went on to say, “Just keeping you abreast of the situation if you wish to purchase more for yourselves.”  Mr McNamara said that all this information came from Mr Hannan.
31. [31]
    Mr Manning recalled a telephone conversation that he had had with Mr Cunningham, Mr McNamara and Mr Hannan.  He said Mr Hannan confirmed that there were up to five containers available and all that was left to do was the SGS inspection.  Mr Manning asked how long it would take to get his hands on the goods if he sent a purchase order, to which Mr Hannan replied that they would be ready to ship within five to seven days of the purchase order.  Mr Manning said he wanted to proceed to buy 33,000 boxes and Mr Hannan took no issue with that.
32. [32]
    Mr Cunningham said in his statement, about that conversation, that he recalled Mr Hannan saying that there were five containers available that would be ready to ship within five to seven business days, as all that was left to do was the SGS pre-shipment inspection.  He recalled that Mr Manning said that he wanted to buy one container.  However, in his cross-examination, he said that he did not really recall parts of the conversation any more.^[12]
33. [33]
    Mr McNamara could not recall whether or not Mr Hannan had said that the stock would be ready to ship within five to seven days of an order.  He did recall Mr Hannan saying that there were 105,000 boxes available.  He could not recall if Mr Manning specified the number of boxes he wanted to buy.  He recalled Mr Hannan indicating that, if Mr Manning wanted to proceed, he should send through a purchase order and Hop2It CT could sort out the paper work from there.
34. [34]
    On 12 July 2020, Mr Manning sent an email to Mr McNamara attaching a Supply Link purchase order for 33,000 boxes of gloves at US$6.95 a box.^[13]  He asked Mr McNamara to send him an invoice, following which he would submit payment in full to the bank account about which he believed Mr Cunningham had the details.
35. [35]
    Late that evening, Mr McNamara sent Mr Manning an email attaching a Hop2It CT document called “Purchase Order & Sales Agreement” for 105,000 boxes of gloves, together with an invoice (incorrectly dated 12 September 2020) for US$729,750 for that number of gloves and what Mr McNamara referred to as an “Overview on Hop2It remittance account” and an “authority to disburse funds from remittance account.”^[14]  The sales agreement and the authority to disburse funds were signed by Mr Hannan.  Mr McNamara said that he sent that email and its attachments at Mr Hannan’s direction.
36. [36]
    When Mr Manning received the email, he saw that it was for 105,000 boxes.  Both he and Mr McNamara said that he rang Mr McNamara and said that the contract was for the wrong number of boxes and Supply Link could only afford to buy 33,000 boxes.  Mr McNamara suggested that Mr Manning correct the documents, initial the changes and return them to him.
37. [37]
    On 13 July 2020, Mr Manning changed the sales agreement to provide for the sale to Supply Link of 33,000 boxes for a price of US$229,350, initialled the changes, signed the agreement and the authority to remit funds and emailed them to Mr McNamara.^[15]  In his email, Mr Manning noted that he had altered the contract “for now” as he did not yet have a buyer but was able to commit to one container.  He said he would remit US$170,000 that day and the balance the following day.
38. [38]
    The sales agreement had the logo at the start of Hop2It Holdings Inc.  The seller was Hop2It CT (referred to as “Party A”, with Supply Link referred to as “Party B”), but its bank account was said to be a US dollar foreign currency account with Westpac Bank in the name of Hop2It Australasia Pty Ltd.  The buyer remittance account was a Commonwealth Bank account in the name of Cape Byron Financial Services Pty Ltd trading as Cape Byron Global Remittances.
39. [39]
    The agreement recorded that the gloves were manufactured by Skymed, Thailand.  Relevantly, it provided:

1.2  Place of delivery:

As directed by Party B, FOB to Port Auckland, New Zealand.

Party B is obliged to work within the delivery schedules provided by the party Glove Factory in Bangkok Thailand but will guarantee delivery to the advised and agreed place provided by Party A.^[16]

1.3  Delivery time:

After signing the contract, Party A will work with the Glove Manufacturer to deliver the shipment (total quantity) to Party B according the delivery time to be advised by the manufacturer and added to Appendix 1 attached specifically as follows:^[17]

Article 3:  Price, Quantity and Payment Term

3.1  Goods and prices:  Party A agrees to sell to Party B the goods with prices according to Article 1.

3.2  Payment method:  Party B agrees to pay Party B (sic) by transferring the Total Price noted on page two (2) to the Buyer Remittance Account referred to on page one (1) by the 13^th July 2020.

Article 5:  Rights and obligations of Party A

5.1  Party A’s rights Request

5.1.1  Party B to pay in accordance with the payment terms in the signed contract.

5.1.2  Request Party B to compensate for damage compared to the contract value if the Party B does not make purchases, which means the Party A will retain the entire deposit amount of the contract.

5.2  Obligations of Party A

5.2.1  Deliver goods strictly according to commitments in the signed contract terms.

5.2.6  If Party B fails to pay any remaining amount after any part payments, it will be penalized 10% of the total amount of this contract.

5.2.7  And Party A will not facilitate delivery when Party B does not pay the rest.

Article 6:  Rights and obligations of Party B

6.1  Party B’s rights

6.1.1  Request Party A to strictly comply with the terms stated in the contract.

6.1.3  Request Party A to compensate 100% of deposit value if not delivered the goods as committed to the quality and quantity, the compensation must be made within 3 working days.

40. [40]
    The authority to remit funds relevantly provided that Supply Link provided irrevocable authority for Hop2It CT to provide instructions on behalf of Supply Link to Cape Byron Global Remittances to release funds from the remittance account “referenced” the purchase order.  All remittances would be instructed in writing by the seller and accounted to the buyer by email to Mr Manning’s email address.  The remittance account was the same as provided in the sales agreement.  The purchase order amount was stated to be US$729,750.^[18]
41. [41]
    Under the heading “Purpose & Payments” it provided:

The purpose of Remittance Payments are:

Manufacturing payments of the products referred to in the Purchase Order

Payment/s of CIF or FOB disbursements if applicable

Payment/s to facilitators and agents if applicable

Other payment/s for fees associated with this Purchase Order as quoted

42. [42]
    On 14 July 2020, Mr McNamara sent an email to Mr Manning,^[19] relevantly saying:

Just a quick note to let you know we have received the first payment of US$170K, leaving a balance of US$59,350.

Once the balance has been receipted, this completes the transaction between Hop2It Container Trades and Supply Link for Purchase Order 9428.

SGS Reporting will be completed upon final payment and you will receive this for the Bill of Lading.

43. [43]
    On 15 July 2020, Supply Link transferred the balance of US$59,350 to the remittance account.^[20]
44. [44]
    Subsequently there were a lot of communications between Mr Manning and Mr McNamara, in which Mr Manning tried to find out when the goods would arrive at the port.  Ultimately, Mr Manning said, in about late August 2020 Mr McNamara told him that Hop2It CT would not be able to deliver the gloves and promised a refund.  No refund was ever received.
45. [45]
    Each of Supply Link’s witnesses was cross-examined by Mr Hannan.  Much of his cross-examination was irrelevant to the issues raised in the pleadings.^[21]
46. [46]
    In the course of Mr Cunningham’s oral evidence, he said he recalled that, during his initial conversation with Mr McNamara, the latter explained how Hop2It CT used agents in other locations to try to secure deals.  But he did not recall Mr Hannan telling Mr Manning, during the four way conversation, how Hop2It CT operated.^[22]
47. [47]
    Mr Hannan asked Mr McNamara about his knowledge of the Hop2It group of companies.  Mr McNamara said he was a director of one company based in Hong Kong and he was aware that Hop2It constituted a group of companies under the Hop2It brand, which had been operating for a long time before 2020.
48. [48]
    Mr McNamara said that, when he first spoke with Mr Cunningham, he was told that Supply Link was looking for someone in Australia to deal with.  Mr Cunningham did not ask him to provide any paperwork to prove what was said in the email and flyer, but said Supply Link would do its own due diligence.  Mr McNamara said he told Mr Cunningham and Mr Manning that Hop2It CT had direct contacts with companies and production lines.  He also described Hop2It CT’s business, in his evidence (although it was not clear that he was saying that he told Mr Manning or Mr Cunningham this), as:^[23]

we were – we were a – a trading company that was – that had access to products, and we were linking people through onto – with – with – supply a product through the Hop2It company.

Right.  So more or less putting buyers and sellers together?‑‑‑That’s what a normal sales contract does.

49. [49]
    I did not find much of Mr McNamara’s cross-examination helpful.  Certainly he did not say anything inconsistent with his statement.
50. [50]
    Mr Manning, in cross-examination, said that he did a little due diligence on Hop2It CT.  He checked out the website and looked at how long it had been in business.  He did not see that Hop2It CT was a newly incorporated company, even though he saw pages on the website headed “About Us” and “How Does It Work?” and he read the terms and conditions of trade.  He said that he did not read Pages headed “Refund Policy”, “Privacy Policy” or “General Disclaimer.”^[24]
51. [51]
    In answer to a question from me, Mr Manning said that, when he paid money to the account with Cape Byron, he assumed it was like a bank and the account was a holding account for Hop2It CT, which would distribute the funds to whoever Hop2It CT was buying the product from once it was ready to be picked up.^[25] 
52. [52]
    Apart from these matters, the cross-examination of Mr Manning was not helpful in determining the relevant facts.

Hop2It CT’s evidence

53. [53]
    Long after the first two days of the trial, on 15 October 2024 Mr Hannan filed witness statements by himself and Mr Ramachandran.  He annexed a large number of documents to his own statement.  Upon the resumption of the trial, Mr Sams, on behalf of Supply Link, objected to most of that evidence.  When the trial finally resumed for final addresses on 29 May 2025, the parties agreed with my suggestion that, rather than debating the objections then, I would consider them in due course and would treat of very little or no weight anything that comprises submissions (that is, that was argumentative rather than evidence of facts), or other material the relevance of which has not been demonstrated in the submissions on behalf of Mr Hannan.^[26]
54. [54]
    Neither Mr Hannan nor Mr Ramachandran was cross-examined.^[27]  That does not, of course, mean that the court must accept their evidence.  It is necessary to consider that evidence in the light of all the evidence before the court.
55. [55]
    Mr Hannan said that:

Hop2It Export Services was created to undertake import and export services from 2005 … and [my] experience as the Hop2It founder dates back to as early as February 2005.

Except for [an unrelated company], I did not work or trade in Australia and operated two Hop2It branded companies in Hong Kong, and one Hop2It company in Delaware USA.  Not until 2018 did I incorporate a Hop2It named company in Australia …

56. [56]
    He went on to say that, in late 2019 or early 2020, he became aware of an opportunity to be involved in the international sale of personal protective equipment.  He incorporated Hop2It Australasia Pty Ltd as a financial services company and Hop2It Container Trades Pty Ltd to conduct a PPE import and export business.  He described this as:

a new and complex PPE export business in an environment where no one could travel domestically nor internationally, so thus there was no guarantee of success in this new restricted industry which attracted all and sundry inexperienced newcomers …

57. [57]
    Mr Hannan said that he engaged Mr McNamara as a sales agent in July 2020 and he exhibited Mr McNamara’s contract.  Nothing in that contract is relevant to any issues in this proceeding.
58. [58]
    Mr Hannan also said that he commissioned a website for Hop2It that included terms and conditions of contracts and other formal documents.  In addition, he drafted what he called in his evidence the “Hop2It Story”.  He exhibited four pages that he said were on the website at the time,^[28] although none of them was expressly put to Mr Manning, so he was not given the opportunity to say whether he saw or read any of them.   However, Mr Manning did say that he saw pages headed “About Us” and “How Does It Work?” 

    1. The first page attached to Mr Hannan’s statement was headed “Our Founder,” the website address of which was http://Hop2Itpp.equipment/about-us-6/.  Relevantly, at the beginning, highlighted by being in italics, it said:

Hop2It Container Trades Pty Ltd ACN 639 414 62, headquartered in Queensland Australia was incorporated in 2020 as a start-up to forge a new methodology of dealing with the government mandated end [sic] enforced global health restrictions during the Covid 19 pandemic which commenced in Q4 2019.  Hop2It Container Trades (“Hop2It”) considered that it could utilise its management’s experience to source and offer wholesale Personal Protection Equipment (“PPE”) to a network of Resellers who could on sell these mandated products to their end-user customers world-wide.

2. The second page, headed “Our Experience,” the website address of which was http://Hop2Itpp.equipment/about-us-5/.  Relevantly, it stated:

Import Export & Container Trades

Hop2It Container Trades Pty Ltd is incorporated in Australia ACN 639 414 62.  The company’s import and export experience come from its management’s sourcing and export of Infant formula which commenced in 2012 after the melamine chemical scare in China which resulted in the closure of Dairy’s there.  From Infant Formula, this product expanded to high quality Australian seafood, poultry, meat and game which the Asia markets demanded in container-based volumes.  Our current PPE export business was forged by our Founder up taking these opportunities as they presented between 2008 and 2020.  As our management learned its new export craft, with the onset of Covid 19 Pandemic in the 4^th quarter 2019, a natural business opportunity developed to utilise regional partners, contract sales representatives and agents to both source Personal Protection Equipment and to liaise with local manufacturers and OEM re-packers where possible and or their authorised distributors and sale organisations.

Our Hop2It Container Trades PPE business comprises of a number of elements from a Point of Sales Order taking to commencing our Export Flow Process to our methods by which an End-User Buyer may order PPE products.  We have experience in every part of this process derived from our export days in food related commodities exported from Australia and elsewhere...  We have been involved in the movement of container-based commodities for a number of years...

...

The Director of Hop2It Container Trades Pty Ltd has approximately 8 years of hands-on experience in importing raw materials and exporting manufactured food products and this experience has been harnessed to ensure our systems support for the newly evolved PPE market have proven invaluable to our company and ultimately for betterment of Reseller clients and our shareholders at large.

3. The third page was headed “How Does It Work.”  Its website address was http://Hop2Itpp.equipment/how-does-it-work/.  Its introduction was:

Hop2It’s PPE Business Opportunity

Hop2It Container Trades Pty Ltd has secured partnership contracts and longstanding orders for the direct production or distributor supply of over 5 million boxes of Nitrile Examination Gloves over the next five years.  An opportunity exists for bona fide Hop2It Members to participate in Container Trades as Re-sellers and share in the profits from the sale of Personal Protection Equipment (PPE).  Hop2It Members can purchase as little as ten (10) Cartons to a whole 40’ Container.  Since December 2019 at the beginning of the global Covid 19 Pandemic demand for general PPE and in particular Nitrile Examination Gloves.  Significant profits have driven many people to seek PPE products to on-sell these high demand products for profit.  Hop2It has made the sales process a simple one for its Members!

4. The final page was headed “Hop2It– A Global PPE Business”.  Its website address was http://Hop2Itpp.equipment/what-we-do/.  Relevantly, it said:

The following overview is of our company Hop2It Container Trades Pty Ltd a global supplier of Personal Protection Equipment (PPE) sourced from manufacturers and their suppliers, distributors and agents in Asia and the Sub-continent.

Trade & Property Exchanges

Trade & Property

Our Hop2It Container Trades Pty Ltd ACN 639 414 62 business focuses on our acquisition and export of PPE for on sale through Resellers.

...

Our company has developed strategic partnerships in regional countries where PPE manufacturing is conducted.  Via these relationships we are able to place Orders for various PPE products directly with manufacturers, their distributors and the manufacturers own authorised and registered sales agents.

59. [59]
    Some of Mr Hannan’s evidence identified the roles of various other parties to whom he referred in his pleadings and his evidence.  He described Huntingdale and its director, Ken Lewis, as his Thailand joint venturer and a company called Lek Omak Co Ltd as the Skymed nitrile glove manufacturer’s warehouseman.^[29]  In some of his questions to Mr Manning, Mr Hannan referred several times to Lek Omak.  In those questions, he described that entity variously as “the Skymed warehouse controlled by a company called Lek Omak Co Limited,” “the supplier” and “the warehouse manager.”^[30]
60. [60]
    Mr Hannan exhibited a joint venture agreement dated 1 May 2020 between Hop2It CT and Huntingdale, to which he and Mr Lewis were also parties.^[31]  It showed Huntingdale to have an address in Robina and Mr Lewis to have an address in Chonburi, Thailand.  The purpose of the joint venture is described in clause 2.1:

The Joint Venture shall be formed for the purpose of Combining Resources in the Personal Protection Industry (“PPE”), the procurement of PPE from manufacturers and allocation holders and the export and delivery of PPE to international customers.

61. [61]
    Clause 4.1 is particularly relevant to the issues before the court:

The Joint Venture shall be managed according to the following terms:

Party A. Hop2It and Party B. Huntingdale will manage and operate their respective businesses independently.  The Joint Venture partnership cuts in when Party A and Party B jointly set up a sale and purchase agreement and contract with any supplier, manufacturer or end user customer as JV Partners. Party B.  Huntingdale’s managing director is domiciled in Thailand and provides the Supplier marketing and support service to the JV Partnership in locating and negotiating contract manufacturing deals.  Party A.  Hop2It, is based in Singapore and Australia and provides the services of location and introduction of tier one and two customers able to make good bank securities and direct payments for the products supplied by the manufacturers.

62. [62]
    In addition, Mr Hannan exhibited a number of other agreements that he said had been made between Hop2It CT and agents in a number of countries.  He asserted that:^[32]

[I] went to great lengths to set up and maintain a supply chain of OEM Manufacturers, Suppliers, Distributors, Dealers and second-hand traders for the supply of … PPE.  From December 2019 to June 2020 [I] developed a strategic network of suppliers at all levels.

63. [63]
    Only one agency agreement that he attached was with a person in Thailand and one was with someone in Vietnam.^[33]  Each was in identical terms to the agreement with Mr McNamara.  In the recitals, each said that:

the undersigned parties are mutually desirous of issuing [name of agent^[34]] with an Agency with Hop2It for representing and doing business with respect to the arranging, for the selling, importing and exporting of Personal Protection Equipment (PPE) and other products and services as defined and in cooperation with one another and with third parties for their mutual benefit. 

64. [64]
    Frankly, the terms of these agency agreements, though floridly written in very hard to read and understand legalese, did not appear to impose any relevant obligation (if any) on either party. 
65. [65]
    Mr Hannan also said that he arranged for Hop2It CT: ^[35]

a significant number of direct relationships with PPE providers including as part of these direct relationships forward projected volume orders over years to satisfy the requirements of said manufacturers to allow access to their PPE stock.  Evidenced hereto … is a collection of some 49 contracts, authorisations, orders to satisfy volume access and other material detailing the defendant’s manufacturing and supply relationships …

66. [66]
    The documents to which Mr Hannan refers are of varying characters, but few are supply contracts, nor do most evidence a contract between Hop2It CT and a manufacturer of PPE.  One appears to propose a contract.^[36]  One appears to be a contract dated 4 June 2020 between Huntingdale as seller and Hop2It CT as buyer of 2,000,000 boxes of gloves at a price of US$13,000,000.  The manufacturer is not, of course, Huntingdale and there is no evidence that Hop2It CT proceeded to buy the gloves.  Another contract with Huntingdale, dated 31 May 2020, is for the supply of N95 masks to the value of US$7,300,000.^[37]  Another is a supply agreement dated 20 November 2020 under which a company in Thailand (GNR Sky Trading Co Ltd) agreed to supply to Hop2It CT, which agreed to buy, 10,270,000 boxes of gloves at a total price of US$71,253,200, at a rate of 1,660,000 boxes every 17 days, starting 30 days after provision of a letter of credit for the entire consideration.^[38]  Later documents comprise letters of intent dated in March 2021 to buy hundreds of millions of boxes of gloves from a company in Thailand and an invoice dated in November 2020 from another company in Thailand for 300,000 boxes.^[39]
67. [67]
    There is no evidence that any of these contracts or proposals was performed to any extent. 
68. [68]
    Mr Hannan said that, on 9 July 2020, he instructed Mr Lewis to order five containers of gloves from Lek Omak Co Ltd.  Huntingdale issued an invoice to Hop2It CT later that day “for the deposit of 5 containers being the amount of 33,000 boxes for USD$229,350.”  Hop2It CT later “arranged for the plaintiff’s deposit to be released, packing of the first container to begin, customs clearance to be obtained, and an SGS customs report produced.”^[40]  Although, in his statement, Mr Hannan asserted (as the defendants had pleaded) that Supply Link had made a contract to buy the full five containers, that defence was not pursued at trial.  I summarise this evidence simply to identify the parties and a few of the steps that, it appears, were (and were to be) taken.
69. [69]
    There is no evidence of any contract between Hop2It CT (or Huntingdale) and the manufacturer of the Skymed gloves the subject of this proceeding, nor with Lek Omak.
70. [70]
    Paragraphs 55 to 58 and 60 to 62 of Mr Hannan’s statement are not proper evidence, but opinions and statements in the nature of submissions.  Paragraph 59 is irrelevant.  These paragraphs are not admissible and I give them no weight.
71. [71]
    In Mr Ramachandran’s statement, dated 5 October 2024, he said he is a chartered accountant and business adviser to Mr Hannan and others.  He resides in India.  He has known Mr Hannan for over five years.  His statement is full of broad assertions that appear to be of things he has been told, but not of events in which he was directly involved.  He gives evidence of a conversation or conversations with Mr Manning, but none of what he says was discussed is relevant.  His entire statement was unhelpful.

The alleged misrepresentations

72. [72]
    Supply Link alleges that a number of representations were made in Mr McNamara’s initial email and the accompanying flyer and in the subsequent telephone conversations with Mr McNamara and Mr Hannan, on which Supply Link (by Mr Manning) relied in deciding to order and pay for one container of gloves.  Supply Link alleges that those representations were made by or at the direction of Mr Hannan and were misleading or deceptive.  Therefore, it alleges, Mr Hannan himself, not just Hop2It CT, engaged in misleading or deceptive conduct contrary to the ACL(Q), which led to Supply Link losing the amount that it subsequently paid.
73. [73]
    I shall consider each alleged representation individually.  When I find that any of them was made, I shall move on to consider whether it was misleading or deceptive and, if so, whether Supply Link relied on it as alleged.

Hop2It CT had been operating in import and export since 2008

74. [74]
    Supply Link alleges that the defendants represented that Hop2It CT had been operating in the import and export sector since 2008.  Supply Link relied on the first sentence of Mr McNamara’s email.  Mr Hannan admits this allegation.
75. [75]
    Supply Link alleges that the representation was misleading or deceptive because Hop2It CT had only existed since February 2020.  Mr Hannan does not admit that the admitted representation was misleading or deceptive but he does admit that Hop2It CT only existed since February 2020.  He goes on to plead that he was the chairman and CEO of Mainstreet International Group Ltd in 2005; in February 2005 Mainstreet traded as Hop2It Export Services and commenced export service in that name on 3 February 2005; and in 2008 Hop2It Export Services expanded its export service throughout Asia into infant formula, seafood, poultry, meat and game.
76. [76]
    In his statement, Mr Hannan gave some evidence about Mainstreet (which, he said, got into financial difficulty and was deregistered in Australia in 2017).  Yet he went on to say that he “Continued this business offshore and Mainstreet still operates to this day out of Singapore.”  He added (in a paragraph that I take to be a form of submission) that this is relevant because Hop2It Export Services was created to undertake import and export services from 2005 and his experience dates back to early 2005.
77. [77]
    There is no doubt that this representation was made and, so far as Hop2It CT itself was concerned, it was wrong.  In and of itself, the statement might be seen as misleading, but it must be considered in the context of Supply Link’s knowledge acquired as a result of receiving the email and the flyer.
78. [78]
    Mr Hannan contends that Supply Link did not rely on the statement because Mr Manning looked at the Hop2It CT website, particularly how long it was in business, including seeing the “About Us” page.  He must, therefore, have seen the first sentence, which expressly stated that Hop2It CT was incorporated in 2020 as a start-up.  Having seen it, he cannot have relied on the statement.
79. [79]
    Mr Sams submitted that I should not accept that the copy website pages attached to Mr Hannan’s statement were on Hop2It CT’s website in 2020.  He pointed out that the URL for each of them (www.Hop2Itpp.equipment, which he said appears to have been super-imposed on each page rather than the pages being printouts from existing web pages) is not the same as the URL for Hop2It CT (www.Hop2Ittrades.com) stated in the information provided to Supply Link in June 2020.  In all of the communications with Supply Link in June and July 2020, the URL was the latter.  The court should infer that the website that Mr Manning saw was at www.Hop2Ittrades.com.  I should accept Mr Manning’s evidence that he did not see that Hop2It CT was recently incorporated on any page that he reviewed and I should not accept Mr Hannan’s evidence that the pages he has placed in evidence are taken from (and, by implication, contain the same content as) the website to which Mr Manning was directed.
80. [80]
    I am not satisfied that the web pages attached to Mr Hannan’s statement are the same as any that were on the Hop2It CT website in June 2020.  The particular pages were not shown to Mr Manning (and had not even been produced in evidence by Mr Hannan) during his cross-examination by Mr Hannan.  The pages produced are clearly from a different website.  It should have been within Mr Hannan’s ability to produce the correct pages and to put their contents to Mr Manning, but he has not done so.
81. [81]
    Therefore, I am not satisfied that, when Mr Manning looked at the website to see, among other things, how long Hop2It CT had been in business, he would have seen that this particular company was only recently incorporated. 
82. [82]
    However, Mr Manning said that, when he did look at the Hop2It CT website, he looked to see how long it had been in business.  Apparently he was satisfied that it had experience in international trade.  That can only have come from statements on the website similar to those produced by Mr Hannan from the other website: principally, statements about the Hop2It group’s types and length of experience and that of Mr Hannan.  Any concern that Mr Manning might otherwise have had about this particular company within the group (even if he had seen that it was recently incorporated) would have been allayed by the story of the group.  There is no suggestion that anything in that history was wrong. 
83. [83]
    I find that, in that context, the statement was not misleading or deceptive.  But, in any event, Supply Link did not rely on it in deciding to contract with Hop2It CT.  Rather, it relied on the history of the group and of Mr Hannan, who had been involved in the import and export industry since 2008 or earlier.  The website in evidence made it clear that the start-up Hop2It CT was intending to “utilise its management’s experience;” its import and export experience came from its management’s sourcing of infant formula since 2012; its experience “derived from our export days in food related commodities.”  For Mr Manning to be satisfied that he was dealing with an established company, I infer that those or similar statements were made on the original website and Mr Manning relied on those statements, not on anything about the longevity and experience of Hop2It CT itself.
84. [84]
    Supply Link has not demonstrated this part of its case.

Hop2It CT had direct contractual relationships with manufacturers

85. [85]
    Supply Link alleges that the defendants represented that Hop2It CT had direct contractual relationships with manufacturers of personal protective equipment in Vietnam and Thailand.  Mr Hannan admits that allegation.
86. [86]
    Supply Link submits that the representation was misleading or deceptive because Hop2It CT did not have such direct contractual relationships.  Mr Sams submitted that, on Mr Hannan’s own evidence, the transaction that Supply Link had with Hop2It CT relied on at least two intermediaries between Hop2It CT and the manufacturer, Skymed:  Huntingdale and Lek Omak.^[41]  This is directly contrary to the claim that Hop2It CT had a direct contractual relationship with the manufacturer.
87. [87]
    Mr Hannan denies that allegation because, he pleads:^[42]

The Second Defendant did have direct contractual relationships with manufacturers of PPE in Thailand and Vietnam, as well as China and Malaysia, insofar as the manufacturers would correspond via their management and/or their authorised agents.

88. [88]
    He then pleads particulars of contracts that, he alleged, were in writing.  Most relevantly, he refers to contracts in Thailand with three companies and the documents that he contends constituted the contracts:

    1. Sufficient Economy City Co Ltd – an authorisation letter dated 15 June 2020;
    2. CK Merchant Co Ltd and Best Cement Co Ltd – a letter of invitation dated 28 July 2020; and
    3. GNR Sky Trading Co Ltd – a supply agreement dated 20 November 2020.
89. [89]
    The first alleged contract (or letter) does not appear anywhere in the evidence.
90. [90]
    The second document relied on appears to be a letter addressed to Hop2It CT from the Managing Director of CK Merchant Co Ltd,^[43] inviting Mr Hannan “to meeting on July 30, 2020 for sign SPA for purchase Order Nitrile Gloves details as below.”  It refers to 2,400,000 boxes of gloves and asks Mr Hannan to confirm the meeting date and time.  Clearly it is not a contract, nor is there any evidence that the company was a manufacturer of gloves.  Indeed, the name of the company gives rise to the inference that it is not a manufacturer, but a merchant of goods and another document identifies the manufacturer of the particular brand of gloves to be a company in Vietnam.^[44]  Also, of course, the letter (and the proposed contract) were not in existence at the time that Mr Hannan made the representation, nor when Supply Link and Hop2It CT entered into their own contract.
91. [91]
    The third alleged contract is with GNR Sky Trading Co Ltd, to which I have also referred.^[45]  The first thing to note about it is that it was not made until November 2020, long after the representation was made, the contract between Supply Link and Hop2It CT was made and that contract was not fulfilled.  Secondly, the company does not appear to be a manufacturer but instead a trading company:  I infer this both from its name and the name of the brand of gloves the subject of the contract.  Nor, as I have said, is there any evidence that this contract was ever fulfilled.  It does not support the truth of the representation.
92. [92]
    As for the alleged contracts with companies in other countries, only one is in Mr Hannan’s evidence:^[46] a “power of authorization” dated 22 September 2020 from Huor Tien Trading (Cambodia) Co Ltd, by which that company purports to grant Hop2It CT and Huntingdale “full rights and power to sell PP Care brand nitrile powder free examination gloves on our behalf as they deem necessary.”  None of the other alleged contracts is in evidence.
93. [93]
    Of particular importance is that there is no evidence of any contract with the manufacturer of the “Skymed” gloves the subject of the contract between Supply Link and Hop2It CT.  Mr Hannan gave evidence^[47] that, on 9 July 2020, he instructed Mr Lewis to order five containers from Skymed’s warehouseman, Lek Omak.  Later that day, Huntingdale issued an invoice to Hop2It CT for “the deposit of 5 containers .. so that the entire order could be placed with the OEM manufacturer via Lek Omak.”  On 10 July Lek Omak invoiced Huntingdale for five containers.  However, neither the invoice from Huntingdale to Hop2It CT nor the invoice from Lek Omak to Huntingdale is in evidence.  Nor is any invoice from Skymed to Huntingdale or Hop2It CT (nor indeed to Lek Omak) referred to anywhere in the evidence.  The only invoices in evidence are from Hop2It CT to Supply Link, namely:

    1. one attached to an email of 12 July 2020 from Mr McNamara to Mr Manning, which was incorrectly dated 12 September 2020 and sought payment of US$729,750 for 105,000 boxes of Skymed gloves;^[48] and
    2. another almost identical invoice, except that it showed a total price of US$229,350 for 33,000 boxes, a deposit of US$170,000 paid on 14 July 2020 and the balance due of US$59,350.^[49]
94. [94]
    Far from there being evidence of a direct contract between Hop2It CT and Skymed, there is in evidence a sale and purchase agreement dated 17 August 2020 between Huntingdale as seller and Hop2It CT as buyer, for 50,000,000 boxes of Skymed gloves.^[50] 
95. [95]
    It appears, from Mr Hannan’s description of the transactions between Lek Omak and Huntingdale and between Huntingdale and Hop2It CT, that the transaction between Supply Link and Hop2It CT in fact was intended to involve four transactions:  Skymed to Lek Omak, Lek Omak to Huntingdale, Huntingdale to Hop2It CT and Hop2It CT to Supply Link.  Huntingdale and Hop2It CT were not operating as joint venturers, but in the conduct of their respective businesses.  As it turned out, it seems either Skymed or Lek Omak failed to complete its obligations to deliver any gloves to Huntingdale, causing Huntingdale and Hop2It CT to be unable to fulfil their respective obligations.
96. [96]
    Mr Crawford relied on paragraphs 50 and 54 of Mr Hannan’s statement in contending that his representation was not misleading or deceptive.^[51]  He submitted that, as Supply Link did not cross-examine Mr Hannan, his evidence in those paragraphs should be accepted.  The problem is that those paragraphs are vaguely expressed opinions or general assertions of what Mr Hannan allegedly did and the effect of the contracts to which he refers.  I have considered the contracts themselves, which are direct evidence.  Mr Hannan’s assertions do not assist me.  Simply because he was not cross-examined, I do not necessarily have to accept them and I do not.
97. [97]
    I find that, at no time between 29 June and 13 July 2020, did Hop2It CT have any contractual relationship with any manufacturer of nitrile gloves, whether in Vietnam or in Thailand (or indeed, anywhere else).  Therefore the representation, which Mr Hannan has admitted making, was misleading or deceptive.
98. [98]
    I also find that Mr Manning, on behalf of Supply Link, relied on the representation in causing Supply Link to make the contract with Hop2It CT and to pay the required consideration to Hop2It CT in accordance with the contract: to the remittance account.  Having regard to his recent experience of paying for and not receiving gloves, it was clearly important to Mr Manning that any further attempt by Supply Link to purchase PPE be with a reputable and experienced Australian company that had a direct relationship with a manufacturer.  He believed that Hop2It CT had such a relationship with the manufacturer of the Skymed gloves and he would not have caused Supply Link to make the contract with Hop2It CT, nor paid the purchase price, had that not been his belief, engendered by the representation.

Hop2It CT operated Australian staffed offices in Vietnam and Thailand

99. [99]
    Supply Link alleges that Mr Hannan represented that Hop2It CT operated offices in Vietnam and Thailand that were staffed by Australian nationals and that representation was misleading or deceptive because Hop2It CT did not operate offices in those countries staffed by Australian nationals. 
100. [100]
     Mr Hannan denies the alleged representation on two grounds:  first, that the alleged representation (to which I infer that he is referring to the statement in the email that “we have an office operated by Australians”) does not refer to “offices” operated by Australians, but to “an office;” secondly, the statement does not refer to being “staffed by”, but being “operated by” Australians.
101. [101]
     Mr Hannan admits that Hop2It CT did not itself have an office in either Vietnam or Thailand that was staffed by Australians, but he pleads that:^[52]

     1. it had a representative in Vietnam, namely Larry Chilcoat, who was American and was overseen by Mr Hannan, an Australian; and
     2. it had a joint venture agreement with Huntingdale, whose director, Mr Lewis, was Australian and whose office was based in Thailand.
102. [102]
     Mr Crawford also submitted that the statement in the email represented only that “we have an office in Thailand that is operated by Australians” and, at the time, Hop2It CT had an Australian person (Mr Lewis) based in Thailand who had joined with Hop2It CT, by the joint venture with Huntingdale, to support contracted sales and exports of PPE. Therefore the representation was substantially true and was not misleading or deceptive.
103. [103]
     The statement in the email was not in the clearest of English, but it did only refer to “an office”, not “offices”.  That reference was immediately after referring to Vietnam and Thailand but I agree that referring to “an office” was more likely to refer to an office in Thailand than to an office in each country.
104. [104]
     The agreement with Mr Chilcoat and Mr Tran does not specify that they had an office in Vietnam and, in any event, neither of them appears to have been Australian:  the agency agreement states their nationality as American and Vietnamese.  But, given my conclusion as to the meaning of the statement in the email, the fact that Hop2It CT did not have an office in Vietnam does not render the statement misleading or deceptive.
105. [105]
     Mr Lewis is Australian^[53] and he was based in Thailand.  Whether he merely lived there or he had an office there is unclear, although the joint venture agreement described him as domiciled in Thailand and recorded an address for him in Thailand.  Mr Hannan referred in his statement to Hop2It CT’s “Thailand joint venturer, Ken Lewis of Huntingdale.”
106. [106]
     However, the joint venture agreement between Hop2It CT and Huntingdale did not oblige Huntingdale to do anything concerning this sale by Hop2It CT to Supply Link.  As provided in clause 4.1, the parties’ respective businesses were to be operated independently of each other, but the joint venture “cuts in when Party A and Party B jointly set up a sale and purchase agreement and contract with any supplier, manufacturer or end user customer as JV Partners” (emphasis added).  The relevant contract in this case was not made under that agreement, as the seller of the gloves was Hop2It CT alone, not Hop2It CT and Huntingdale.  Therefore, even if one joint venturer’s office were to be considered an office of the other joint venturer where they entered into a transaction as joint venturers, for the purposes of any transaction (such as the instant contract) not undertaken jointly by Hop2It CT and Huntingdale, Hop2It CT did not have an office in Thailand, let alone one operated by Australians.
107. [107]
     Consequently, the representation that Hop2It CT had an office in Thailand operated by Australians was misleading or deceptive.
108. [108]
     Mr Manning said, concerning this assertion, that:^[54]

There was reference to having offices in Vietnam and Thailand which were being operated by Australians.  Again, this gave me comfort knowing there would be Australian Hop2It staff on the ground in the relevant country, ensuring everything went smoothly.  The Australian staff were there to oversee the SGS reporting.

109. [109]
     I find that Mr Manning did rely on the statement made by Hop2It CT, in deciding that Supply Link should contract with Hop2It CT and in arranging payment of the purchase price in accordance with that contract.

Hop2It CT would supply products directly from the factory

110. [110]
     Supply Link alleges that Hop2It CT and Mr Hannan represented that Hop2It CT would supply products directly from the manufacturer’s factory.  Mr Hannan admits that he and Hop2It CT made that representation, but denies that it was misleading or deceptive.
111. [111]
     In the primary written submissions for Supply Link, produced on 20 May 2025, before the last day of the trial, Mr Sams submitted that, to the extent that this was a representation as to a future matter, Mr Hannan had not pleaded or proved having reasonable grounds to make it and therefore he is taken not to have had reasonable grounds:  ACL(Q), s 4(2). 
112. [112]
     Mr Crawford submitted that the court should not allow Supply Link to rely on that subsection, as it did not plead it, a party proposing to rely on it should plead it and, in the absence of pleading, it should not be allowed to rely on it at trial.^[55]  While s 4 was referred to in Supply Link’s opening summary, it was not procedurally fair to permit reliance on the subsection, as Mr Hannan was then self-represented.
113. [113]
     Mr Sams submitted in reply that that part of Foster J’s reasons was in obiter dicta and it was not adopted by the other members of the Court.  Also, his Honour’s reasons were made in the context where the applicant had neither pleaded nor referred in submissions to the section and the trial had been conducted without regard to the need to consider whether there were reasonable grounds for the representations.^[56]  Mr Sams went on to note that, as Foster J had alluded to, an earlier decision of the Full Court was authority that a party ought specifically plead that it intends to rely upon that provision or ought at least notify the counter-party that it intends to rely upon that provision.  In the earlier case referred to by Foster J, sufficient notice had been given by a statement of contentions of fact and law that was handed up at the commencement of trial.^[57]
114. [114]
     In this case, as Mr Sams submitted, Supply Link made clear in its primary submissions that it relied on s 4(2).  Indeed, it had first made that clear in a written summary of its case that was sent to the court and Mr Hannan on 2 August 2024, in accordance with prior directions.  Although Mr Hannan had been ordered to deliver statements of evidence (to stand as evidence in chief) well before trial, he did not produce his witness statements until some two months after he was given that summary.  He had plenty of opportunity to put on evidence and to submit that any representations as to future matters were made by him on reasonable grounds.  There was no suggestion that he had been caused any prejudice (such as being unable to obtain evidence to show that he had reasonable grounds), as there was in Dig It Landscapes.  Indeed, some of his evidence appears to have been directed to that end. 
115. [115]
     I agree with these submissions.  While it would have been preferable for Supply Link to have pleaded reliance on the subsection, its failure to do so has not prejudiced Mr Hannan.  This situation is very different to those in SPAR and Dig It Landscapes.  In the latter, not only was it unclear from the statement of claim why the alleged representations were said to be misleading or deceptive, the plaintiff did not rely on s 4 until its oral opening submissions.  His Honour recorded that those facts had denied Bupa the opportunity to gather and potentially adduce relevant evidence in its defence, so it would be procedurally unfair to allow Dig It’s case to proceed on the basis that Bupa did not have reasonable grounds for making the alleged representations.^[58]
116. [116]
     Supply Link is entitled to rely on s 4.  It is therefore necessary to consider whether this representation was as to future matters and, if so, whether Mr Hannan has demonstrated that he had reasonable grounds for making it.
117. [117]
     In this case, the representation was in fact both as to Hop2It CT’s then present ability to supply gloves directly from a factory and as to its future ability.  The email enclosing the flyer refers to both “our direct relationship with the manufacturer” and that “we can provide you with direct service from factory to your warehouse.”  Those assertions state expressly that Hop2It CT was then able to provide a direct factory to purchaser service and that it had then a direct relationship with the manufacturer.  As it was written to induce a potential purchaser to contract to buy gloves, the email and the flyer were also making representations about what Hop2It CT would be able to arrange for a future purchaser.
118. [118]
     Mr Crawford submitted that, whether the representation was as to the present or the future, it was not misleading.  He relied on Mr Hannan’s evidence in his statement, that Hop2It CT had a significant number of direct relationships with PPE providers; that he went to great lengths to set up and maintain a supply chain of OEM manufacturers; and that he had developed a strategic network of suppliers at all levels.^[59]
119. [119]
     I have already discussed and made findings about Hop2It CT’s alleged contracts with manufacturers of nitrile gloves or PPE in general.  I have found that Hop2It CT had no relevant contracts with manufacturers at the time the representations were made, nor at any time before the contract with Supply Link was made.^[60]  Indeed, there is no evidence that it ever had any such contracts.  Mr Hannan had no reasonable grounds for making this representation.  For these reasons, the representation was misleading or deceptive, both as to the present and as to what Hop2It CT could arrange for a future purchaser.
120. [120]
     Mr Manning said, in respect of this representation (by reference to the statement in the original email that, “We have direct contractual relationships with the largest manufacturers in Vietnam and Thailand”):^[61]

It was saying Hop2It had direct contractual relationships with the manufacturers of the products they were advertising.  An import company cannot simply ring up a factory and establish a direct relationship.  Normally a company will have to have a long-standing relationship with a manufacturer, and done multiple successful transactions, before a manufacturer would consider dealing directly.  Otherwise, you would have to deal through and [sic] intermediary or broker. The fact they were advertising a direct factory relationship again indicated to me this was a company that had a long and successful trading history with the manufacturers of the PPE …

The direct relationship also indicated to me that dealing with Hop2It would be effectively risk free, because there wasn’t a chance that my money was going to get lost between parties behind the scenes, as had happened to me previously.  It also meant that there wouldn’t be layers of middlemen taking a cut on the deal.

121. [121]
     I am satisfied that Mr Manning relied on this representation in deciding to have Supply Link contract with Hop2It CT and pay the purchase price.

Hop2It CT would not use middlemen, intermediaries or brokers, resulting in cheaper prices

122. [122]
     Supply Link alleges that Hop2It CT made two representations about the absence of intermediaries between Hop2It CT and manufacturers.  The first is that Hop2It CT would supply products without the use of middlemen, intermediaries or brokers.  The second is that the absence of middlemen, intermediaries or brokers meant that Supply Link could obtain gloves for factory pricing, or at cheaper prices than it would otherwise have to pay.  Supply Link alleged that the representations were misleading or deceptive because Hop2It CT used one or more intermediaries in relation to the gloves, including Huntingdale.
123. [123]
     Hop2It CT and Mr Hannan denied that Hop2It CT made a representation about “middlemen, intermediaries or brokers” because the email referred only to “middleman brokers.”  Otherwise they admitted that they made the alleged representations.^[62]  They also admitted that Hop2It CT used one or more intermediaries, including Huntingdale^[63] and, denying that the representations were misleading or deceptive, said that Hop2It CT was:^[64]

in a joint venture with Huntingdale who ordered the gloves from the factory warehouse of Skymed owned by Lek Omek Co Ltd …

124. [124]
     The relevant passages in the email and the flyer were respectively:

Because of our direct relationship with the manufacturer and our own brands, you can be assured you are not dealing with a middleman broker, and therefore we can provide you with both direct service from factory to your warehouse without additional fees added for other virtual handlers. 

Deal Direct With The Factory We Are Not Brokers – Factory Pricing

125. [125]
     Mr Crawford submitted that the representations were with respect to future matters and, although Supply Link had not indicated that it relied on s 4 of the ACL(Q), it should not be permitted to do so.  I do not agree, for the reasons discussed above.  Although no express notice of reliance on that section was signalled in respect of these representations, Mr Hannan has given evidence that addresses the representations and, by implication, that he had reasonable grounds for making them.  The first representation, at least, was both as to Hop2It CT’s then present ability to deal without middlemen and its intention to do so if Supply Link contracted with it.  It concerned both present and future matters. 
126. [126]
     As I have found, Hop2It CT had no contracts with manufacturers.  I have also found that this transaction did not involve Huntingdale as a joint venturer with Hop2It CT.  As I have recorded above at [93], Mr Hannan gave evidence that he instructed Mr Lewis to order five containers of gloves from Lek Omak and Huntingdale later issued an invoice to Hop2It CT and Lek Omak issued an invoice to Huntingdale.  It appears that both Huntingdale and Lek Omak were intermediaries between Hop2It CT and the manufacturer. 
127. [127]
     I am satisfied that the statements that Hop2It CT had a direct relationship with the manufacturer and a customer was not dealing with a middleman broker could be reasonably understood as meaning that there were and would be no parties involved in any contract other than Hop2It CT, as purchaser from the manufacturer and seller to its customer.  Given the involvement of Huntingdale and Lek Omak, between the manufacturer and Hop2It CT, the first of these representations was misleading or deceptive.  Mr Hannan also had no reasonable basis for making the representation.
128. [128]
     The second, as to “factory pricing” or cheaper pricing, is not so clear.  Mr Hannan did not produce the invoices from Lek Omak and Huntingdale, so one cannot compare whether they were for different prices to the price charged by Hop2It CT to Supply Link.  This representation was about an existing state of affairs – that Hop2It CT was not, and did not use, a broker - and about a future matter – that Hop2It CT would charge factory pricing to its customers.  Hop2It CT was not a broker, but it did, or intended to, involve middlemen or intermediaries in any transaction, as I have found.  Mr Hannan has not shown that he had reasonable grounds for the representation as to “factory prices”.  That representation is therefore also misleading or deceptive.
129. [129]
     I have set out at [120] above what Mr Manning said, relevantly to these and similar representations about direct relationships between Hop2It CT and manufacturers.  In his oral evidence, he also said, in answer to the following questions from Mr Hannan and then from me:^[65]

Well, you signed an authority for an escrow service, of which you paid the money into.  You didn’t pay the money to Hop2It; you paid the money to an escrow service called Cape Byron on the Gold Coast.  And you know who these people are.  You then signed an authority for them to transfer the funds to the supplier of the goods?‑‑‑And – and – and surely – surely that would have been in – in – in – in your hands, because I’m doing the con – I’m doing the deal with Hop2It; nobody else.  And if – if – if you – if you put that particular structure in place, surely that’s a secure structure.  I’m paying who you told me to pay, and then you’re going to handle the money, you’re going to keep your little bit of profit, the factory gets the rest, and I get my product.  Never happened.

Mr Manning, when you arranged to pay the money to the bank account of Cape Byron, and you signed the authority to remit funds, what was your understanding as to whose funds those then became and what was to be done with them?‑‑‑Well – well, Cape Byron, was far as I was concerned, it could have been like, a bank or something similar within – within Australia, and I presumed that Hop2It would have received the money into there, and then – obviously it’s a holding account for them, and then distribute the funding to whoever they’re buying it off once the product was ready for pick-up.  That’s – that’s the way I would see it.

130. [130]
     I do not consider that Mr Manning relied on the representation concerning factory pricing or cheaper pricing.  However, he was very concerned to ensure that the company with which he proposed to deal had a direct relationship with the manufacturer.  He and therefore Supply Link did rely on the representation that Hop2It CT was not, or did not use, a middleman broker. 

Hop2It CT had a direct contractual relationship with the manufacturer, Skymed

131. [131]
     The allegation in the statement of claim is that, in all the circumstances from the original email and flyer to the entry into the contract, Hop2It CT represented that it had a direct contractual relationship with Skymed, being a manufacturer based in Thailand that was the manufacturer of the gloves.  Mr Hannan denies that he (or Hop2It CT) made that representation, but he admits that Hop2It CT did not have such a contractual relationship.
132. [132]
     Mr Sams submitted that the representation was made by a combination of conduct by Hop2It CT:

     1. Hop2It CT sent the original email and flyer to Supply Link on 29 June 2020, which referred to Hop2It CT having direct contractual relationships with the manufacturer;
     2. Mr Cunningham, Mr Manning, Mr McNamara and Mr Hannan had a number of discussions from 8 to 11 July, in one of which Mr Hannan said that the gloves were then available;
     3. on 12 July 2020, Supply Link sent its purchase order, referring to Skymed nitrile gloves, from which one can infer that Skymed had been identified to Supply Link by then; and
     4. on the same date, Mr McNamara sent to Mr Manning an email that referred to Skymed gloves and attached a draft contract referring to Skymed as the manufacturer.
133. [133]
     I am satisfied that, during the period 8 to 12 July 2020, Hop2It CT identified Skymed as the manufacturer of the gloves that Supply Link had expressed an interest in buying and, in the context of Hop2It CT’s statement that it had a direct relationship with the manufacturer, together with the other statements to which I have referred above concerning its relationship with the manufacturer and the absence of middlemen, its conduct represented that it had a direct contractual relationship with the manufacturer, which was Skymed.  It did not have such a relationship and therefore this conduct was misleading or deceptive.
134. [134]
     As with the three representations discussed immediately above, I am satisfied that Mr Manning relied on that direct relationship in deciding to make the contract and to pay the contract price.

Gloves would be shipped within 5-7 days of order

135. [135]
     Supply Link alleges that Hop2It CT and Mr Hannan represented that the gloves would be shipped within 5 to 7 days of when Supply Link ordered them.  Mr Hannan denies that he or Hop2It CT made such a representation.
136. [136]
     Supply Link relies on the conversation between Mr Hannan, Mr McNamara, Mr Manning and Mr Cunningham on 11 July 2020.  The parties agree that Mr Hannan said, “We have five containers of nitrile gloves available.  The only thing left to do is the SGS pre-shipment inspection of the stock.”  Supply Link alleges, but Mr Hannan denies, that he also said, “The stock should be ready to ship within 5 to 7 days of when you order it.”
137. [137]
     I have described earlier the evidence of Mr Manning, Mr Cunningham and Mr McNamara about this conversation.^[66]  All that Mr Hannan said about the conversation was:^[67]

On 11^th July 2020 the Second Defendant, Sean Capet and the Plaintiff had a phone call during which the Second Defendant confirmed the five (5) containers were available.  The Plaintiff wanted one (1) container to go to New Zealand first as a priority and the balance to go to the USA.

138. [138]
     Mr Hannan did raise that conversation with Mr Manning in cross-examination, but he did not put to him that he had not said that the stock would be ready to ship within 5 to 7 days of the order.^[68]  He also raised it with Mr Cunningham,^[69] but Mr Cunningham said he could not remember the conversation even though he had signed his statement only one month earlier.  Mr Hannan also asked Mr McNamara about the telephone conversation,^[70] but did not mention this assertion.
139. [139]
     I have no reason to doubt the evidence of Mr Manning and Mr Cunningham in their respective statements about their recollections of the conversation with Mr Hannan.  I accept their evidence that, in response to a question by Mr Manning, Mr Hannan said that the container would be ready to ship within five to seven days of the purchase order.  That is consistent with what I infer Mr Hannan believed to be the case, as his understanding was that the gloves were ready to be transported from the warehouse to the port for SGS inspection and shipment, which I infer he believed should not take more than five to seven days from payment to the manufacturer.  Therefore I find that he did say the words attributed to him.
140. [140]
     The representation was as to a future matter.  Mr Hannan has not pleaded or produced any evidence to show that he had reasonable grounds for making the statement.
141. [141]
     The contract itself, on which Mr Hannan relies, provided for delivery FOB to Port Auckland, New Zealand, as set out in clauses 1.2 and 1.3.^[71]  It made it clear that the time for delivery was in the hands of the manufacturer, not Hop2It CT, and it specified no maximum time within which the goods would be shipped (although it appeared to make provision for such a time to be inserted).  Mr Crawford submitted that this provision overtook any representation by Mr Hannan.  I do not accept that submission, as it left open the possibility that it would be within five to seven days of the contract or payment for the goods.
142. [142]
     As Mr Hannan has not proved that he had reasonable grounds for making the statement, it is taken to have been misleading or deceptive.
143. [143]
     I accept that Mr Manning, and therefore Supply Link, relied on Mr Hannan’s statement in entering into the contract and paying the purchase price.  While maybe not as important to Supply Link as some of the other representations, it was one factor in Mr Manning’s decisions.

Hop2It CT guaranteed that gloves would be delivered

144. [144]
     Supply Link alleges that Mr Hannan represented that Hop2It CT was in a position to, and did, guarantee that the gloves would be delivered in accordance with the purchase contract.  In his defence, Mr Hannan admits that he made such a representation.^[72]
145. [145]
     Supply Link alleges that the representation was misleading or deceptive because Hop2It CT could not guarantee that the gloves would be supplied in accordance with the contract, as it had no direct contractual relationship with the manufacturer and was reliant on the actions of one or more intermediaries.  Mr Hannan admits that allegation and says that:^[73]

[Hop2It CT] was in a joint venture with Huntingdale who ordered the gloves from the factory warehouse of Skymed owned by Lek Omek Co Ltd …

[Hop2It CT] did guarantee the delivery of the Gloves under the Purchase Contract subject to the total purchase price being paid by the Plaintiff.

146. [146]
     As Mr Crawford noted in his written closing submissions, the parties have clearly been incorrectly transposed in clause 1.2 of the purchase agreement.  That seems to be correct, in which case the agreement provided that, although Hop2It CT was obliged to work within the factory’s delivery schedules, it guaranteed delivery to the port and onto the ship nominated by Supply Link, at least.  (Once loaded on the ship, the ownership of the gloves would transfer to Supply Link, as the contract was FOB, or free on board.)
147. [147]
     Mr Crawford submitted that the guarantee that Hop2It CT gave was that set out in the contract.  No additional representation as to a guarantee, or as to Hop2It CT’s ability to perform it, was properly superimposed on that contractual obligation.^[74]  An express contractual promise or representation will constitute an actionable implied representation only if the party making the promise or representation had no intention or capability of carrying it out at the time it was made.^[75]
148. [148]
     He also submitted that Supply Link’s case against Mr Hannan effectively constituted an attempt to pierce the corporate veil and to avoid the consequences of limited liability.  The court should be slow to permit consumer laws to be used for this purpose.^[76]
149. [149]
     Mr Sams submitted^[77] that I should reject the application of those propositions.  In his written closing submission, he submitted that a promise may carry the implication that the maker honestly intends to perform it and has reasonable grounds for making it.  Therefore, it may be misleading or deceptive conduct to make such a promise without that intention or those grounds.^[78]   Whether the grounds are reasonable is to be determined objectively and whether the grounds were actually the basis of the representation is to be determined subjectively.^[79]  Mr Hannan gave no evidence that he had reasonable grounds that were the basis of the representation.  He was never in a position to guarantee delivery, as he (or Hop2It CT) never acquired the gloves to on-sell to Supply Link, nor did Hop2It CT ever acquire and supply replacement gloves.
150. [150]
     The propositions of law relied on by both parties are correct.  As Ormiston J said in Futuretronics at 238-239:

It is wrong to view every contractual  obligation as an unqualified promise to perform the stipulated act.  …  If the promise induced the other party to enter into the agreement, as one can readily accept it would, then it is that promise and the circumstances surrounding it which must be examined.  The promise can only be said to be misleading or deceptive if it was in some way inaccurate …  It would seem … that, at the least, a contractual promise would amount to an implied representation that the promisor then had an intention to carry out that promise.  …  Likewise it would seem that such a representation connotes a present ability to fulfil that promise which, if shown to be untrue at the time of making, would likewise characterise the implied representation as misleading or deceptive.

151. [151]
     This passage was quoted by Gordon J in Coles Supermarkets, who went on to say:^[80]

As this passage reveals, an express contractual promise or representation will constitute an actionable implied representation under s 52 of the TPA only if the party making the promise or representation had no intention or capability of carrying it out at the time it was made (ie the promisor had no reasonable grounds for making the promise). The questions which then arise are (1) what is the contractual promise in this case and (2) did the respondents have the intention and ability to carry it out at the time it was made?

152. [152]
     These principles are not relevantly altered by the decisions in Cash Bazaar and Concrete Constructions v Litevale.  The factual circumstances in each of those cases were also materially different to the circumstances before me. 
153. [153]
     As to the concern that the representations are being used to pierce the corporate veil, Mr Sams submitted that the representations in this case were not made in the contract but were made beforehand as incentives to persuade Supply Link to enter into a contract.  He submitted that the submission that the contract overtook any prior representations may be good if the parties were sophisticated and obtaining legal advice before making their contract, but that was not the case here.  Mr Manning relied on the representations in deciding to contract quickly with Hop2It CT, particularly where Supply Link had already lost money paid to an overseas seller (or seller’s agent) for a similar product.
154. [154]
     I agree with those submissions.  Further, little or nothing in the instant contract itself was inconsistent with the representation previously made, so this is not a case where there is any inconsistency between the contract and prior representations, as to which one might say that, whatever the representations, the plaintiff agreed to the terms in the contract and cannot avoid being bound by those terms and its contractual rights by seeking to claim non-contractual damages from persons behind the contracting company. 
155. [155]
     I do not doubt that Mr Hannan believed, at the time the agreement was made, that Hop2It CT could fulfil its obligation to deliver the gloves in accordance with the contract and, based on that belief, he provided in the agreement that Hop2It CT “will guarantee delivery to the advised and agreed place provided by [Supply Link].”^[81]  However, at that time Hop2It CT had no reasonable basis for giving such a guarantee, as it did not have ownership of the gloves, nor a binding contract with Skymed (or even with Lek Omak) to supply the gloves to it.  Thus it was not, at the time of the representation, capable of carrying it out.
156. [156]
     I find that Hop2It CT engaged in misleading or deceptive conduct in making the admitted representation as to its guarantee, given that it had no reasonable basis for giving it.  Mr Hannan also made the representation by causing the contract to be drafted and himself signing it and he did so without any reasonable basis.  He too engaged in such conduct.
157. [157]
     I am satisfied that Mr Manning relied on the guarantee and the implied representation that Hop2It CT could comply with it when he signed the agreement and paid the purchase price.  It was part of the context in which he “understood that Hop2It CT had the gloves in stock and ready to go.”^[82]

Hop2It CT had five containers of gloves available, was in a position to supply them and would supply gloves ordered and paid for by Supply Link

158. [158]
     Supply Link pleads that Hop2It CT and Mr Hannan represented (essentially, by their conduct) that Hop2It CT had five containers of gloves available for sale, it was in a position to supply up to five containers and it would supply the gloves ordered and paid for by Supply Link.^[83]  Mr Hannan did not plead in response to those allegations and is therefore taken to admit them.
159. [159]
     Supply Link alleges that those representations were misleading or deceptive because Hop2It CT did not have the containers of gloves in stock, it would need to acquire stock through intermediaries in order to have it available to supply to Supply Link and it was never able to supply the gloves ordered by Supply Link.^[84]  Again, Mr Hannan did not plead in response to those allegations and is therefore taken to admit them.
160. [160]
     Mr Sams submitted that Hop2It CT never had the gloves available for sale as it never had possession or ownership of them.  Mr Crawford submitted that, by the time Mr Hannan said that Hop2It CT had five containers available for sale on 11 July 2020, the gloves were on hold for Supply Link.  With respect, there is no evidence that the gloves were “on hold” for Supply Link.  I have dealt with Mr Hannan’s evidence about this at [68] above.  As I said at [69], there is no evidence of any contract between Hop2It CT or Huntingdale and either Skymed or Lek Omak.  The gloves were neither on hold nor owned by Supply Link.
161. [161]
     In his address, Mr Crawford explained that he did not intend to submit that the gloves were contractually on hold for Hop2It CT.  Rather, they were “on the ground”, in the warehouse and available for sale:  Mr Crawford said the position was that, “We don’t own it, and we don’t possess it, but we can get it.”  He said he was not putting the proposition as high as “we have a right.”^[85]
162. [162]
     I am satisfied that each of these representations was wrong and Mr Hannan has not demonstrated that he had any reasonable grounds for making them.  For the reasons I have found concerning the other representations, I find that Supply Link relied on them in making the agreement with Hop2It CT and paying the purchase price.

Conclusions

163. [163]
     I have found that a number of the alleged representations were made by Hop2It CT (either by Mr Hannan directly or at his direction) and Mr Hannan and were misleading or deceptive.  Mr Hannan therefore engaged in such conduct in the course of trade or commerce.  I have found that Mr Manning relied on those representations in causing Supply Link to make the purchase agreement with Hop2It CT and to pay the purchase price in accordance with its obligations under the agreement.  Therefore, if Supply Link has suffered loss because of Mr Hannan’s conduct, Mr Hannan is liable in damages for that loss.^[86]

Damages and interest

164. [164]
     Supply Link paid the purchase price in reliance on the representations.  In doing so, Supply Link was paying Hop2It CT the sum for which it had contracted to pay.  In exchange, Hop2It CT had contracted to supply a container of gloves.
165. [165]
     Hop2It CT never supplied any gloves to Supply Link.  Nor did it ever refund any of the sum paid by Supply Link.  Supply Link has therefore lost the entirety of the amount it paid.  It received no benefit whatsoever for that payment.  It has therefore suffered loss in the amount that it paid, namely US$229,350.  Mr Hannan is liable for that loss.
166. [166]
     Where a plaintiff has suffered loss by payment of an amount in a foreign currency, it is often appropriate that the damages awarded be in that currency rather than Australian dollars.  In considering whether to give judgment in a foreign currency or in Australian dollars, judgment should ordinarily be given in the currency that best expresses the plaintiff’s loss.^[87]  That is, if exchange rates have varied such that giving judgment in one currency or another might lead to an award that is materially greater or less than the plaintiff’s actual loss, an appropriate adjustment should be made to the award.  Where judgment is given in a foreign currency, it is often appropriate to award interest on damages at a rate or rates reflecting business interest rates in that country, rather than in Australia, or “a rate at which someone could reasonably have borrowed [that currency] in [the relevant country] at simple interest.”^[88]
167. [167]
     Supply Link does not state, in its claim, its statement of claim or counsel’s submissions, what amount it seeks by way of damages and whether in Australian dollars, United States dollars, or even New Zealand dollars (given that it is in New Zealand and presumably converted that currency to pay the contractual sum in US dollars).  Nor does it claim a particular rate or rates of interest on damages. 
168. [168]
     Neither party has made any submissions on the appropriate award of damages or interest.  In the circumstances, it is unfortunately necessary to seek further submissions or those issues.
169. [169]
     Supply Link having succeeded in its claim, ordinarily Mr Hannan should pay its costs of the proceeding.  However, I shall also seek submissions on costs.