QLD Private Seller Considered as Trader Under Australian Consumer Law?

[DJMCC1968]

What do you think?

An experienced marine mechanic is undertaking a secondary business selling marine items on Gumtree - perhaps only 3 separate items. Does this bring him under the realm of the Australian Consumer Law? I bought a runabout boat off him for over 10k and it has turned out to be unseaworthy.

Within a month of purchase, a marine surveyor, a boat builder and another marine mechanic have all provided reports that the boat is structurally unsound. The marine surveyor reports some of these faults must have been evident to the seller. The marine mechanic with qualifications the same as the seller located the same structural defects.

The seller enticed me to the sale by extending his credentials and answering questions regarding the structures in the boat at the time of my inspection prior to purchase.

I am preparing a writ and statement of claim relying on the Common Law and / alternatively the ACL along the following lines.

On X date in January 2017, Mr. X engaged in misleading and deceptive conduct as defined and provided for by ss.18 & 29 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (The Australian Consumer Law - the ACL) by making false or misleading representations as to the condition and structural integrity of a [the boat].

Mr. X added to these representations by guaranteeing fitness for purpose of the boat within the meaning of s.61 of the ACL and reinforced those assurances by extending his qualifications as a marine mechanic. Mr X engaged in the misleading and deceptive conduct in order to fraudulently gain a financial advantage from me. By the said representations and conduct, Mr. X induced me to buy the boat on X January 2017.

In accordance with ss.54 & 259 of the ACL, I rejected the goods being the boat by email to Mr. X on X February 2017. Mr. X has engaged in trade that was unconscionable within the meaning of s20 of the ACL. The contract between Mr X and I was conducted on a fraudulent basis by him and is voidable.

I am wondering whether I can bring this matter into the protection of the ACL by getting him seen as a Trader.

I have read opinions on the site saying caveat emptor is not a defence to fraudulent conduct in the making of false and misleading representations and also want to know if I have an argument that might win under the Common Law.

Interested in opinions on the two options - perhaps other than I was an idiot to buy the boat without an inspection and trusting the seller as a marine mechanic please :-O I already know I was silly to have been deceived

Thanks

 

[Rod]

An experienced marine mechanic is undertaking a secondary business selling marine items on Gumtree - perhaps only 3 separate items. Does this bring him under the realm of the Australian Consumer Law? I bought a runabout boat off him for over 10k and it has turned out to be unseaworthy.

Unclear. Did you receive an invoice or receipt? Is there a business name or ABN on the sale documentation?

Have you sent a letter of demand?

I am preparing a writ and statement of claim ..... along the following lines.

Format is wrong for a statement of claim. You appear to have either researched this yourself or received incomplete legal advice. ACL s20 is not applicable unless you have a special circumstance.

Fraud may be possible but the onus is on you to prove it.

You would benefit from some real legal advice.

 

[DJMCC1968]

Thanks Rod

I have a receipt of sale signed by us both as a private buyer and seller. The boat and trailer were registered in his business name however.

Definitely researched myself so far. I am obtaining some legal advice but yes, it is incomplete at this stage. I will go back to that when I am almost complete in my own research and preparations of the file and have it checked over prior to filing. I will however apply to the Court under Rule 515 of the Uniform Civil Procedure Rules 1999 that the defendant and I appear unrepresented as it is by definition a minor matter.

I can lose the s20 reference in the writ as my intention is to get the boat returned to the seller and payment and costs awarded against him; I guess I doubt that will go anywhere even if I can prove it - though I haven't seen any references in the ACL as to special circumstances re unconscionable conduct?

Yes, I was proposing that wording for the writ only - I understand the confusion. I am working on my statement of claim separately.

Regards

 

[Rod]

It may help to subpoena records from Gumtree showing how many transactions the seller has had in the last 5 years. Might bolster your case for him being in 'trade or commerce'.

 

[DJMCC1968]

Thanks - I have their Dutch address for service... have asked for an Australian one and waiting to hear.

BTW Gumtree claims they expunge all records more than 3 months old... and says they are an introduction site not an auction or classifieds site. Probably no sense in the subpoena on that basis.

 

[Rod]

Whether it is an introduction site or an auction site or classifieds site doesn't matter for court records. They may take records off line, but doubt very much they delete them entirely. It may just be a line they tell to the masses to discourage court orders and requests.

If you want to use the ACL, proving the transaction was in 'trade or commerce' is your biggest hurdle. Though helps having the boat and trailer registered in a business name. Maybe subpoena his records to see how he purchased the boat (ie through his business)

Breach of contract is still a possibility but the detail is uncertain. Your 'expert reports' will be essential to have any chance on this cause of action. As most of the contract is likely to be verbal you may have trouble. Any texts/emails saying you wanted a 'seaworthy' boat? But you will also need to prove he knew its true state. This may be hard.

 

[DJMCC1968]

Copy everything you say Rod - thanks.

Have a few items of notes at the time which will assist slightly. I've contacted Gumtree again.

Subpoena to his business is an interesting idea and maybe I will do that but APP will no doubt apply; also don't want to show that hand yet as I have an FOI request in with RMS NSW first for details of a supposed 2015 owner down there and they have already knocked it back - appealed that as well now.

Thank you