District Court New South Wales Medium Neutral Citation: Margaret Long v A & MI Pty Limited and Manal Ibrahim [2013] NSWDC 333 Hearing dates: 5 - 6/12/2012, 4 - 6/2/2013, 28/3/2013, 9 - 12/4/2013 Decision date: 20 June 2013 Before: Letherbarrow SC DCJ Decision: 1Verdict and judgment for the plaintiff against the first defendant in the sum of $15,000.00 2Judgment for the second defendant Catchwords: Purchase of used Maserati motor vehicle - misleading and deceptive conduct - representations - puffery - express and implied terms - fitness for purpose - merchantable quality - person involved in contravention - damages Legislation Cited: Competition and Consumer Act 2010 (Cth), Trade Practices Act 1974 (Cth), Sale of Goods Act 1923 (NSW) Cases Cited: Gould v Vagellas (1985) 157 CLR 215, Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) (1998) 39 FCR 546, Wardley Australia Ltd v Western Australia (1992) 175 CLR 514, Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357, Kizbeau Pty Ltd v WG & 8 Pty Ltd (1995) 184 CLR 281, Yorke v Lucas (1985) 158 CLR 661, Australian Knitting Mills v Grant (1933) 50 CLR 387, Pereira v Director of Public Prosecutions (1988) 82 ALR 217, Butt v Tingey (1993) ATPR 46-110, Richardson and Wrench Holdings Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681, Australian Competition and Consumer Commission v Bio Enviro Plan Pty Ltd [2003] FCA 232, Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 Texts Cited: Motor Traders Association's Code of Ethics; Cheshire and Fifoot's Law of Contract, Ninth Australian Edition, 2008, Miller's Australian Competition and Consumer Law Annotated, 35th Edition, 2013 Category: Principal judgment Parties: Plaintiff: Margaret Long 1st Defendant: A & MI Pty Limited 2nd Defendant Manal Ibrahim Representation: Plaintiff: M. Gunning First and Second Defendants: C. Robinson Plaintiff: Mills Oakley Lawyers First and Second Defendants: Cambridge Law File Number(s): 2011/224843 Judgment Introduction 3On 22 May 2010, the plaintiff signed a contract (exhibit 8) to purchase a used 2006 model Maserati Coupe motor vehicle (the car) from a motor dealership situated on Parramatta Road at Croydon known as the Motor Emporium (the dealership). This dealership was owned and operated by the first defendant. 4The second defendant had been the sole director and secretary of the first defendant since its registration in October 2007 and was its dealer principal. She had the overall daily management of the dealership which employed a number of sales and administrative staff. The dealership dealt in "prestige used motor vehicles." 5The plaintiff first attended the dealership in the week commencing 10 May 2010, most likely on that date. Her second visit thereto was on the day she signed the contract. On this occasion the plaintiff was accompanied by her husband, Mr Andrew Long (Mr Long). 6On both occasions the plaintiff dealt primarily with an employed salesman of the first defendant, Mr Mohammed Ibrahim (Mr Ibrahim) who was also the brother-in-law of the second defendant. 7The total cost of the vehicle was $129,990 which was its advertised price as per the relevant "Form 8" certificate (annexure A to exhibit 2) which was displayed in the car's window. The plaintiff traded in her Dodge four-wheel-drive motor vehicle for which she ultimately received an allowance of $44,490 leaving a balance to be paid on the car of $85,500. Such sum was made up by way of a deposit or $8,500 taken from the plaintiff's Visa card on the day the contract was signed together with a bank cheque in the sum of $69,000 and another Visa card payment of $8,000. The latter two payments were provided by the plaintiff when she took delivery of the car on 24 May 2010. The Claim 8By her amended statement of claim, the plaintiff seeks damages from the first and second defendants by way of a number of counts. 9Firstly, the plaintiff pleads breaches of section 18 of schedule 2 of the Competition and Consumer Act, 2010 (Cth) (The "CCA"), due to allegedly misleading or deceptive conduct engaged in by the defendants. Such conduct is said to arise from oral representations as to the "condition, quality and value" of the car. 10Secondly, the plaintiff alleges breaches of terms said to be implied into the contract as to the car's fitness for purpose and merchantable quality pursuant to section 19(1) and (2) of the Sale of Goods Act, 1923 (NSW) (the "SGA"). 11Thirdly, the plaintiff alleges breaches of the said representations on the basis that they were also express terms of the contract. 12Finally, the plaintiff alleges breaches of certain terms said to be implied into the contract pursuant to the Motor Traders Association's Code of Ethics. The Issues 13The position of both defendants, who were represented by Mr Robinson of counsel, in relation to the CCA count was that it could not succeed for several reasons. Firstly, Mr Robinson argued that no statements said to form the basis of such conduct were in fact made. Alternatively, any statements which may have been made were "puffery". Thirdly, he argued that even if any such statements were made which constituted conduct under the section and which were shown to be false or misleading, the plaintiff did not rely upon them. 14Further, as to the position of the second defendant in relation to the CCA count, Mr Robinson argued that on the evidence she was not drawn in to the transaction at all until after the contract had been signed and any alleged statements had been made, with the result that she could not be liable for damages pursuant to section 236 of the CCA as she was not "involved" in any alleged contravention of s18 thereof. 15In relation to the SGA count as to fitness for purpose, Mr Robinson argued that even if this term was to be implied into the contract there was no evidence of any breach of it because the particular purpose pleaded was that the car "was required for frequent private use" and that it was clearly fit for this purpose despite any alleged defects. In this respect, he pointed out, inter alia, that the plaintiff still owns the car and has travelled a considerable number of kilometres in it since its purchase from the first defendant. 16In relation to the SGA count alleging a breach of an implied term of merchantable quality, whilst Mr Robinson conceded that the subject sale was of ascertained goods by description, he argued that any breach thereof, which was denied, fell within the proviso to section 19(2), as any alleged defect was patent and ought to have been revealed to the plaintiff upon her examination of the car. 17As to the count based upon the alleged incorporation of the representations into the contract as express terms, Mr Robinson argued that, inter alia, clauses 12 and 13 thereof operate to expressly exclude any incorporation of further terms without the written agreement of the parties. Mr Robinson made a similar submission in relation to the alleged implication into the contract of any terms pursuant to the Motor Traders Association Code of Ethics. 18Further, as to the position of the second defendant in relation to the SGA and other contract counts, Mr Robertson submitted that as she "is not a party to the contract .... no claim for breach of contract can lie against her." 19As to the issue of damages, there was also considerable dispute. Whilst the plaintiff's amended statement of claim does not fully particularise the damages sought it does allege that the car "was actually only worth approximately $40,000 because of the defects", thereby suggesting a claim of around $90,000. However, in his written submissions, Mr Gunning, who appeared as counsel for the plaintiff, conceded that some difficulties arose in the plaintiff's expert evidence as to this issue. Ultimately, he submitted that the plaintiff's "minimum loss" was $15,000 but went on to argue that the true measure of her loss was "closer to the figure of $60,000" regardless of whether she was successful under either the CCA count or those under the SGA count or other counts. In this regard, Mr Gunning submitted that the assessment of damages at least in relation to the CCA and SGA counts "are essentially the same ....". 20As to the damages issue, Mr Robinson submitted that the plaintiff's expert's evidence was, in effect, entirely unsatisfactory and that I would accept the evidence of the defendants' expert and award the plaintiff a little over $2,000. Alternatively, he submitted that no sum greater than $15,000.00 should be awarded. The Hearing 21As a consequence of an earlier order of the Court the evidence in chief of all witnesses proceeded by way of affidavit subject to certain additional evidence which I permitted to be given during the hearing. 22Despite the amount of damages sought and the fact that much of the evidence was given by way of affidavit, the hearing still occupied almost two weeks spread over several months. Whilst there were certain common facts, a lot of the evidence, especially in relation to the alleged statements, was hotly contested and the parties' positions remained polarised. Unfortunately, the same must also be said in relation to the two expert witnesses, being a Mr Lloyd who was retained on behalf of the plaintiff and a Mr Venier who was retained on behalf of the defendants. 23In an attempt to narrow the issues between the experts, I directed that two joint reports be prepared but only one eventuated (exhibit D) and it did not assist greatly in this regard. 24I also directed that the experts give concurrent evidence which assisted in so narrowing the issues to some degree but also revealed a degree of animosity between them. The Approach of This Judgment 25The affidavit, documentary and oral evidence in this matter is extensive. Whilst I have regard to all of it, I do not intend to set it out in detail. Rather, I have approached the issues generally in the order in which they were dealt with by the parties in their written submissions. 26Accordingly, I will firstly deal with the question of what, if any, statements were made and whether they constitute conduct under the section. I will then move on to the issue of reliance. I will then deal with the question as to whether any such conduct was misleading or deceptive. I will then move on to what damages, if any, flow therefrom before determining whether the second defendant can be held responsible for same. In this regard, it was common ground that if I found that Mr Ibrahim engaged in false or misleading conduct by making any statements, his employer, the first defendant, would be legally responsible for same. 27I then intend to deal with the SGA and other contract counts, albeit somewhat briefly due to my conclusions in relation to the CCA count. The Statements 28The issue of what, if any, statements were made in this matter largely involves a consideration of a credit-based question, namely whether I accept the evidence of the plaintiff, said to be significantly corroborated by that of her husband, or whether I accept the evidence of Mr Ibrahim, said to be supported to some degree by the evidence of the second defendant and that of a Mr John Makhoul (Mr Makhoul) who was employed as the first defendant's sales manager at the relevant time. 29When the plaintiff first visited the first defendant motor dealership, which I find was probably on 10 May 2010, it was her evidence that Mr Ibrahim approached her, telling them, inter alia, that: (i)the car was a prestige vehicle like a Ferrari which would always maintain its value and that in fact it was worth much more than the selling price and (ii)it was a rare and great vehicle and the best car in the yard. 30During her second visit on 22 May 2010, the plaintiff gave evidence that Mr Ibrahim approached her and her husband telling her that: (i)prestige vehicles like the car never depreciate in value; (ii)the car was being sold at a price far less than its value with very low kilometres and accordingly presented great value; (iii)the car was only four years old, was in excellent condition and everything was original including its paintwork; (iv)the car had never been involved in a smash, was in immaculate as if new condition, had hardly been driven, had been fully checked by the first defendant's motor mechanic and did not require any repairs; (v)the car had an inspection report which was very good and that the plaintiff did not need to go to the expense of obtaining one; (vi)the car had all log books, an alarm and immobilizer; (vii)there was no money owing on the car and it had no other financial interests registered against it 31In stark contrast, Mr Ibrahim, in effect, said he made no statements whatsoever about the car other than that it was "good looking", despite taking the plaintiff for a drive in it on the first occasion and accompanying her while she drove it on the second occasion although he did show her "some of the (car's) features". He said that his statement that the car was "good looking" was in fact made in response to the plaintiff saying that she needed to "look good" in her business as a marriage celebrant and needed "this kind of car" to do so. 32In cross-examination, Mr Ibrahim suggested that the car "sold itself" and at one point even went so far as to say that the purposes of his employment were limited to opening the dealerships' doors for a customer, greeting them and taking them for a test drive. Apart from his description of the car as "good looking", he steadfastly maintained that he said nothing else of relevance about it. 33Whilst I found the plaintiff to be at different times of her evidence an emotional, pedantic and confused witness who was prone to exaggeration, I found Mr Ibrahim to be a wholly unsatisfactory witness with much of his evidence simply being unbelievable. His demeanour was very unimpressive. I quickly came to the conclusion during his cross-examination that he was deliberately avoiding saying anything which could be construed as constituting a representation with respect to the sale of the car. 34Further, a considerable portion of the plaintiff's evidence was corroborated by that of her husband, not only in relation to what she told him occurred when she got home from the first visit to the first defendant's premises, but also as to what Mr Ibrahim said to his wife in his presence on the second visit when he accompanied her. Whilst there are some differences in the plaintiff's and her husband's recollection of events, such differences, in my view, are not to be unexpected in circumstances where persons are remembering conversations that occurred some time beforehand. In addition, Mr Long gave his evidence calmly and with consideration and at no point did I gain any impression that he was attempting to exaggerate or mislead the court. 35Accordingly, on the balance of probabilities, I accept that the statements set out in paragraphs 27 and 28 above were, in fact, made by Mr Ibrahim on the days mentioned. 36In reaching this conclusion, I have also taken into account the evidence of the second defendant and that of Mr Makhoul. Whilst it is not possible to reconcile all of their evidence with that of the plaintiff and her husband, I note that they were not directly involved in the subject discussions. Further, I found the second defendant at times during her evidence to be somewhat argumentative as well as not being prepared to concede unimportant matters. The "Puffery" Issue 37At common law there was a clear distinction between representations and puffery. Statements of a general promotional nature containing flamboyant or alluring statements about the quality of the subject matter of the contact which would not be understood to be literally true were not actionable: see Cheshire and Fifoot's Law of Contract, Ninth Australian Edition, 2008 at 11.11. 38Section 18 of schedule 2 of the CCA provides for no such distinction. However, it is clear that this does not mean that the courts will regard all puffery as actionable conduct under s18: see Miller's Australian Competition and Consumer Law Annotated, 35th Edition, 2013 at [1.52.18.45]. 39Ultimately, "the test is whether the conduct or statements are capable of leading the recipient into error": see Cheshire and Fifoot's Law of Contract (supra) at 11.119. In this regard, the following remarks of Gibbs CJ in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 at [9] are instructive: It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by (sic) regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or course depend on all the circumstances. 40In the present case, a number of statements I have found were made by Mr Ibrahim are clearly, in my view, not puffery even at common law. These include those about the vehicle never being involved in a smash and retaining its original paintwork which are essentially statements of fact rather than opinion. The remaining statements I find are also not puffery having regard to in the circumstances in which they were made and to the plaintiff herself who, whilst not a sophisticated woman, I find was a reasonable member of the class of persons contemplated by the section as likely to be affected by the statements in question. 41Accordingly, I find that the statements in question constitute actionable conduct for the purpose of the section. Reliance 42The plaintiff gave evidence that after Mr Ibrahim made the statements in question she felt "reassured" by them and signed the contract. 43However, during her cross examination, the plaintiff said that, in fact, at no point did she ever wish to purchase the car and that she was, in effect, trapped into it after her credit card was used without her knowledge to take the initial deposit as a result of which she felt she had no choice but to thereafter sign the contract. 44I found this part of the plaintiff's evidence very hard to follow. It was given to my observation when she was quite emotional and I find, was exaggerating and I do not accept that this is what really occurred. Rather, I find that she felt somewhat rushed in the transaction as a result of the pressure being placed upon her by Mr Ibrahim. In addition, in re-examination the plaintiff confirmed her evidence in chief that if she had known that the statements made to her by Mr Ibrahim were not true she would not have agreed to purchase the car for the subject price or at all. 45I am also satisfied that the statements made by Mr Ibrahim were calculated to induce the plaintiff to enter into the contract in question. In such circumstances there is authority for the proposition that if the person, in fact, enters into the contract there arises a fair inference that the person was induced to do so by the statements: See Wilson J in Gould v Vagellas (1985) 157 CLR 215 at 236. 46It is also clear that reliance upon the relevant statements does not have to be the only factor in the decision to enter into the contract. It is sufficient if they play some part, even if only a minor part, in contributing to the contract being entered into: see Wilson J in Gould v Vagellas (supra) at 236 and Lockhart J in Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) (1998) 39 FCR 546 at 558. 47Further, the issue of causation in respect to reliance should be approached in a practical or common sense way: See Mason CJ in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525 and Kiefel J in Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 357 at [45]. 48In the current circumstances, I am satisfied on the balance of probabilities that each of the statements that I have found were made by Mr Ibrahim did play a significant part in inducing the plaintiff into entering into the subject contract and that she relied upon each of them in doing so. Were The Statements Misleading or Deceptive or Likely To Mislead or Deceive? 49An answer to this question requires consideration of, inter alia, the expert evidence. The plaintiff's expert, Mr Lloyd, was extremely critical of the overall condition of the car. In fact, he was initially of the view that it was likely to have been written off in an earlier accident and rebuilt which included the installation of an entire interior from an earlier model car. There is little doubt on the basis of Mr Lloyd's evidence that most of the statements I have found were made were misleading in that they were false and likely to mislead a prospective purchaser into error. 50However, for the reasons set out below, I do not accept the evidence of Mr Lloyd and much prefer the more balanced evidence of Mr Venier which I accept. 51Mr Venier was of the view that as at the date of the contract, inter alia, the car had been repainted a number of times, was in below average condition and contained a number of faults. 52Consequently, I find that a number of the statements referred to above have been shown to be misleading and, indeed false, on the basis of Mr Venier's evidence. These are that it was being sold at a price far less than its value, was a great vehicle in excellent condition, needed no repairs, had never been involved in a smash and still had its original paintwork. 53In addition, I find that whilst the vehicle did have an immobilizer it did not have an alarm, there was no "very good" inspection report and that there was a considerable sum of money owing on the vehicle. These facts were not disputed. I also find that the statement that prestige vehicles like the car never depreciate was false. This is clear from the evidence of both experts. 54Having examined the car's logbooks (part of exhibit F), I am not prepared to find that they were incomplete as at the date of the sale of the car to the plaintiff. At that point in time the car had travelled approximately 21,000km. Such logbooks reveal that it had its first 10,000km service in December 2008, albeit when it had travelled just under 15,000km. Its next service was not due until it had travelled 30,000km. That service was undertaken in August 2011 at the request of the plaintiff when the vehicle had travelled some 36,000km as revealed in the logbook. 55Accordingly, on the basis of all the evidence, I am satisfied that all the statements referred to above, apart from that concerning its logbooks, were misleading and/or deceptive and that the plaintiff was in fact misled by them into entering the subject contract. Damages - CCA Count 56The plaintiff's damages for breach of section 18 of the CCA are to be assessed by ascertaining the difference between the real value of the car as at the date it was acquired and the price that the plaintiff paid for it. However, subsequent events may be relevant in so far as they illuminate its value as at the acquisition date: see Kizbeau Pty Ltd v WG & 8 Pty Ltd (1995) 184 CLR 281 at 291; Gould v Vaggelas (supra). 57As to this issue, I am largely reliant upon the expert evidence. In this respect, as stated, I prefer and accept the evidence of Mr Venier to that of Mr Lloyd. Mr Lloyd presented in the witness box, at times, as an advocate for the plaintiff's case. Further, his initial theory of the car having been written off and rebuilt as described was debunked. As stated, I do not accept his evidence. 58In his report Mr Venier valued the car as at the date of acquisition at $117,000 but in his oral evidence he reduced this somewhat to $115,000. He based the valuation in his report upon the Red Book value of the same model car in average condition. As I understood his oral evidence, he conceded that the car was in below average condition requiring approximately $2,000 in expenditure to bring it up to "merchantable quality". This would seem to explain the valuation that he gave in his oral evidence although this is not entirely clear. 59In all circumstances, bearing in mind that such matters cannot be precisely mathematically assessed, I am of the view that the car's real value as at the date of its acquisition by the plaintiff was approximately $115,000 whereas she paid some $15,000 more. 60Accordingly, I award the plaintiff the sum of $15,000 by way of damages for breach of section 18 of the CCA by the first defendant. The CCA Claim Against The Second Defendant 61As mentioned above, the plaintiff also seeks the same damages against the second defendant pursuant to section 236 of the CCA on the basis that the second defendant was a "person involved in the contravention" of section 18 by the first defendant. 62As to this issue, Mr Robinson submitted that there was not only no evidence that the second defendant made any of the statements relied upon by the plaintiff, there was similarly no evidence that "she was in any other way involved in the relevant sense of the conduct alleged in breach of section 18". Likewise, he submitted that there was no evidence that before the contract was executed by the plaintiff the second defendant "was involved in any way directly or indirectly in the transactions over the car, knowingly or otherwise". 63On the other hand, whilst Mr Gunning accepted that to be liable in relation to the CCA count the second defendant must be shown to have participated in or assented to the contravention, he argued that it was sufficient if there was evidence from which it could be found or inferred that the second defendant had knowledge of the essential elements that constituted the contravention. In this regard he relied upon Yorke v Lucas (1985) 158 CLR 661. 64In this respect, Mr Gunning relied upon the fact that the second defendant was the sole director of the first defendant and its principal dealer and that she employed her brother-in-law Mr Ibraham as the salesman whom made the relevant representations. Mr Gunning went on to argue that Mr Ibrahim's silence in his evidence as to anything in the nature of a representation being said to the plaintiff "raises some serious questions about precisely what the second defendant knew about the (car) that was not conveyed to the plaintiff". 65Further, Mr Gunning noted that the second defendant conceded that it was she who set the price of the Maserati at $129,990 and that she had dealt with its previous owner, a Mr Nicholas. In consequence, he submitted that the second defendant must have known something about the background of the car to have been able to have set the price consistent with that of a similar model vehicle in good condition. 66Finally, Mr Gunning argued that by setting the price alone, the second defendant "was materially involved in the representations that (the car) was of a value that was equivalent to a car in good condition" and that such representation was false and misled the plaintiff into signing the subject contract. 67Section 2 of Schedule 2 to the CCA provides that a person is "involved" in a contravention of s18 of that schedule if the person: (a)has aided, abetted, counselled or procured the contravention; or (b)has induced, whether by threats or otherwise, the contravention; or (c)has been in any way, directly or indirectly, knowingly concerned in, or party to the contravention; or (d)has conspired with other to effect the contravention 68Section 2 of Schedule 2 mirrors s75B of the CCA which is in the same terms as s75B of the Trade Practices Act, 1974 (the TPA) which it replaced. 69The leading case on the interpretation of s75B of the TPA is Yorke v Lucas (supra). In that case the High Court laid down a number of propositions including the following: (i)The derivation of s75B is to be found in the criminal law and there is nothing to support the view that the concepts which it introduces should be given a new or special meaning; (ii)For paragraph (a) of s75B to apply to a person, it must be shown that they intentionally aided, abetted, counselled or procured a contravention; and to form the necessary intent they must have knowledge of the essential matters which make up the contravention whether or not they know that those matter amount to a contravention; (iii)Before a person can be said to have been party to a contravention within paragraph (c) of s75B, they must be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention. 70It is also clear from an examination of the authorities that whilst knowledge may be inferred from the surrounding circumstances, for example, by a combination of suspicious circumstances and a failure to make inquiry, the question remains one of the existence of actual knowledge: see Pereira v Director of Public Prosecutions (1988) 82 ALR 217; Butt v Tingey (1993) ATPR 46-110; Richardson and Wrench Holdings Pty Ltd v Ligon No 174 Pty Ltd (1994) 123 ALR 681; Australian Competition and Consumer Commission v Bio Enviro Plan Pty Ltd [2003] FCA 232. 71In the present case, there is no direct evidence that the second defendant had any knowledge of any of the statements made by Mr Ibrahim. She did not become in any way involved in the transaction until after the plaintiff signed the contract. She is hardly mentioned in the plaintiff's primary affidavit (exhibit A). There is similarly no direct evidence that she knew anything about any defects in the car. In fact, her evidence was that she had it mechanically inspected before setting its price and that such inspection "all came back okay". 72Mr Gunning's submissions about this aspect of the matter were essentially that the relevant knowledge should be inferred from the circumstances referred to in his submissions, especially as to the second defendant setting the price at a level of a similar model car in good condition. 73In my view, there is insufficient evidence to draw any such inference, The fact that Mr Ibrahim was her brother-in-law and gave, as I have found, unsatisfactory evidence does no lead me to question "precisely what the second defendant knew about the (car) that was not conveyed to the owner". Whilst the second defendant knew the car's prior owner from whom she had received it on consignment and whom was not called by either party, there is no evidence that she received any negative information about it from him. The mere fact that she placed an asking price on the car which was of the order of about $15,000.00 more than it was worth does not, in my view, make her a party to or "involved" in the relevant representations made by Mr Ibrahim which were, in effect, that the car was worth much more. 74Accordingly, the plaintiff fails in her claim against the second defendant under the CCA. The Breach of Contract Counts 75Despite the plaintiff's amended statement of claim seemingly indicating that all contract counts described above are pleaded against both defendants, I note that in his written submissions Mr Gunning only deals with the SGA counts and only as against the first defendant. 76Accordingly, I assume that none of the contract counts are pressed against the second defendant and only those under the SGA are pressed against the first defendant. However, if I am wrong in this regard, I am of the view that none of such counts are available against the second defendant as she is not a party to the contract. 77Further, in relation to the representations which the plaintiff seeks to incorporate as terms of the contract, together with those parts of the Motor Traders Association's Code of Ethics, I find that clauses 12 and 13 of the contract prohibits any such incorporation. 78Accordingly, I now move to a brief consideration of the plaintiff's SGA claim against the first defendant said to arise by breaches of the implied terms as to fitness for purpose and merchantable quality pursuant to sections 19(1) and (2) thereof respectively. 79In relation to section 19(1), I find that the plaintiff expressly made known to the first defendant the particular purpose for which the car was required and in a way so as to show that she relied on the first defendant's skill or judgement. I also find that the car constituted goods of a description which it was in the course of the first defendant's business to supply. As to the particular purpose, I find that it was, as alleged, "for frequent private use". 80Therefore, there was an implied term in the contract that the car was reasonably fit for such purpose. However, I accept Mr Robinson's submission that there is no evidence demonstrating a breach of that term. Despite the matters referred to, I find that the car was fit for frequent private use and has indeed been so used by the plaintiff over the several years that she has owned it to date. 81As to section 19(2) of the SGA, I note that Mr Robinson concedes that the relevant sale was a sale by description and it is clear that the first defendant dealt in goods of that description. Accordingly, there was an implied term in the contract that the car was of merchantable quality. This required that the car was in an actual state that a buyer fully acquainted with the facts and therefore knowing what hidden defects existed in it and not limited to its apparent condition, would buy it without abatement of the price obtainable for such a car if in reasonably sound order and condition and without special terms: Australian Knitting Mills v Grant (1933) 50 CLR 387 at [418] per Dixon, J. 82In my view, this implied term has been breached due to the fact that it was, inter alia, not in original let alone excellent condition, had been involved in a smash, had been repainted and was in need of certain repairs to bring it up to even average condition. 83Further, I do no accept Mr Robinson's submission that all such defects ought to have been revealed if the plaintiff had examined the goods. Firstly, it is clear that any examination must be made before the contract is entered into. Secondly, there must be an actual examination carried out. Whilst I am of the view that the plaintiff did carry out such an examination, I am comfortably satisfied that a reasonable buyer would not have had revealed to them thereby, inter alia, that the vehicle had been in a smash and had been repainted. In all the circumstances, I am not satisfied that the proviso to section 19(2) applies. Accordingly, there has been a breach of this implied term. Damages For The SGA Breach 84Pursuant to section 54 of the SGA, the measure of damages for breach of such an implied term is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they answered or complied with the implied term. It was therefore Mr Gunning's submission that the measure of damages for such a breach was the same as that assessed in relation to the CCA count. I accept this submission and award the plaintiff as against the first defendant the sum of $15,000 for the breach of this implied term. Orders 85Accordingly, I make the following orders: (1)Verdict and judgment for the plaintiff against the first defendant in the sum of $15,000.00. (2)Judgment for the second defendant. 86I will now hear the parties as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2014