Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 43

CITATION: Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 043 PARTIES: Airstrike Industrial Pty Ltd (Applicant/Appellant) v Charles Robertson Janice Robertson (Respondents) APPLICATION NUMBER: APL144-13 MATTER TYPE: Appeals HEARING DATE: 5 November 2013 HEARD AT: Brisbane DECISION OF: Senior Member Oliver Member Deane DELIVERED ON: 21 March 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The claim against the Claim Fund is dismissed. 3. Any application for costs including submissions and evidence as to costs is to be filed in the Tribunal and a copy provided to the other party by 4.00pm on 28 April 2014. 4. If any application for costs is filed: a. the other party is to file in the Tribunal any submissions and evidence (if any) in response and provide a copy to the other party by 4.00pm 12 May 2014 b. the application for costs will be determined on the papers without an oral hearing unless a party requests an oral hearing not before 12 May 2014. -- 1 of 15 -- 2 CATCHWORDS: MISREPRESENTATION – FALSE AND MISLEADING STATEMENTS – whether express representation or representation by silence – where licensed real estate agent made statements which induced the respondents to purchase an industrial unit – where representations concerned a temporary access road to an industrial estate – where permanent road not constructed – where respondents had a subjective understanding of the meaning of temporary to be ―short term‖ – where no representation that access was ‗short term‘ – whether it was open on the evidence to conclude that temporary meant short term – whether using the word ―temporary‖ was misrepresentation when there was no date for the alternate access to become permanent – where entire agreement clause in contract for sale – whether clause applied to defeat claim against the Fund. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 Property Agents and Motor Dealers Act 2000 (Qld) ss 470, 488, 574 Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd [2010] QSC 169 Re Demagogue Pty Ltd v Ramensky [1992] FCA 557 Downey & Anor Carlson Hotels Asia Pacific Pty Ltd (2005) QCA 199 Commonwealth Bank of Australia v Mehta (1991) 23 NSWR 84 Kimberly NZI Finance Ltd v Torero Pty Ltd (1989) ATPR digest 46-054 at 53, 195 Briginshaw v Briginshaw (1938) 60 CLR 336 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Perry QC instructed by Carter Newell, Lawyers. RESPONDENT: Mr Steele of Counsel instructed by McLaughlins, Solicitors -- 2 of 15 -- 3 REASONS FOR DECISION [1] On 10 April 2013 the Tribunal allowed the Robertsons‘ claim against the Claim Fund under the Property Agents and Motor Dealers Act 2000 (Qld) (‗the Act‘) in the sum of $200,000.00. It also found that Airstrike Industrial Pty Ltd, Shane Airey and Graeme Salt were all liable jointly and severally to reimburse the Claim Fund in that sum. The claim was allowed because the Tribunal found that Airstrike, by its agent Mr Salt, made representation which was false and misleading which induced the Robertsons to purchase an industrial unit in an industrial estate in Upper Coomera which was being marketed by Airstrike for the developer Virgo Corporation Pty Ltd. [2] This is an appeal by Airstrike against the Tribunal‘s decision. The grounds of appeal are quite comprehensive but essentially they come down to whether it was open for the learned Member to find that there was an express misrepresentation or a misrepresentation by silence by Mr Salt about the access to the industrial estate from Kristins Lane. Insofar as the misrepresentation by Mr Salt was said to be express, the Robertsons say that the representation that the access road to the industrial estate via Kristins Lane was temporary was false and misleading because Mr Salt did not have a time frame for the new connection road to the estate from Days Road to be completed in the future. The misrepresentation by silence was the failure of Mr Salt to provide further information to the Robertsons about the ―temporary access‖ to the estate via Kristins Lane, information about which he had no specific knowledge. Further Background. [3] Virgo Corporation was the developer of a large industrial estate at Upper Coomera, just north of the Gold Coast. To understand the Robertsons‘ complaint it is best to describe how access was to be gained to the industrial estate at the time the Robertsons inspected the site in mid 2006. To access the estate one has to travel along Days Road heading in a generally northerly direction and then turn right onto Kristins Lane. After a short distance there is right turn into the estate. From Kristins Lane there is a short connection road to the commencement of the estate over private land. This access road is not a gazetted road. This then takes one onto the estate via a road called Sierra Place. The connection road from Kristins Lane to the estate was the ‗temporary‘ access to the estate at the time of development. The Robertsons travelled over this road when they undertook their inspection of the land on which the industrial unit was to be built. [4] Along Sierra Place there is a roundabout with Dalton Street to the right of the roundabout. The Unit ultimately purchased by the Robertsons is on the right hand side in Dalton Street just south of the roundabout. Dalton Street continues south parallel with Kristins Lane and then comes to a dead end. The proposed permanent access to the estate was to be a new road direct from Days Road to Dalton Street. This proposal is contained in a Decision -- 3 of 15 -- 4 Notice issued by the Gold Coast City Council1 in respect of the approval for the subdivision. [5] In May 2006 the Robertsons were looking for suitable premises to open a fast food takeaway business and had a telephone conversation with Mr Salt. He told them about the proposed development in the new estate called Coomera Business Centre off Kristins Lane. He invited the Robertsons to drive out to inspect the development, which they did. After this there was a meeting in Mr Salt‘s office at Nerang on 19 July 2006. [6] In this meeting they had a general discussion and looked at the plans of the proposed development.2 The Robertsons say they were concerned about the access to the site because Kristins Lane was shown as a temporary access road and Dalton Street was shown as a dead end street. When they asked Mr Salt about this he said, and this is not contested, that the current access to the estate via Kristins Lane was only a temporary arrangement, that Dalton Street was going to be extended to Days Road, when that occurred Kristins Lane would be closed off and then Dalton Street would provide the only access to the estate.3 This information, Mr Salt says, came from Decision Notices published by the Gold Coast City Council and the project brief prepared by the developers. Again there is no suggestion in the Tribunal‘s reasons or the evidence that this information or knowledge on the part of Mr Salt was not correct. [7] The Robertsons then lodged an expression of interest to purchase the unit in August 2006 and a contract was eventually signed on 18 October 2006. The Robertsons plead in the statement of claim that ―in reliance on the inferences drawn from Mr Salt‘s representations‖ they entered into the contract. [8] As matters transpired, by February 2011 Dalton Street was still a dead end and had not been connected to Days Road. [9] It seems from the parties‘ pleadings, the evidence of the parties and the findings of the learned Member the only facts in contention are whether Mr Salt said words to the effect ―once Dalton Road goes through you‘ll be laughing‖ and that the plans for Days Road were ―in the future‖. The learned Member made no findings about whether Mr Salt said this but in any event it is not relevant for the purposes of determining this appeal. The conduct of the case below. [10] We should say something about the way the case was conducted in the Tribunal. There is no provision for formal pleadings in the QCAT Act or Rules. In Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd4 it was held that the rules about a party being bound by the pleaded case do 1 Agreed bundle of documents. 2 Agreed bundle of documents. 3 Defence paragraph 7. 4 [2010] QSC 169. -- 4 of 15 -- 5 not strictly apply in a tribunal. That case concerned findings by the former Retail Shop Lease Tribunal which went beyond particulars narrowing the issues in dispute provided by the lessee just prior to the commencement of the hearing. However, as is apparent here, the Robertsons set out their case of misrepresentation against Airstrike with some precision in a ―statement of claim‖. This was entirely appropriate, because for a party to satisfy the Tribunal there is a valid claim on the Claim Fund, the Tribunal has to be reasonably satisfied5 that Airstrike, though its agent Mr Salt, engaged in conduct which could amount to a contravention of s 574 of the Act. If prosecuted a maximum penalty of 540 penalty units could be imposed. [11] Therefore, because of the potential punitive consequences if a contravention was established, the respondents to the proceeding who are not only potentially liable to a penalty, but also liable to reimburse the Claim Fund are entitled to know with some degree of particularity what is alleged against them. The statement of claim filed by the Robertsons does this and in response to it, Airstrike and Mr Salt filed a defence which again pleads, with some specificity, the allegations of fact relied upon to contest that any representation made was not a misrepresentation for the purposes of s 574. [12] So it seems reasonable in these circumstances that some regard is had to each party‘s pleaded case in considering the evidence adduced to address and support the factual matters asserted in the respective pleadings. Clearly, here there is at least an evidentiary onus on the Robertsons to establish the necessary factual basis to satisfy the Tribunal that a representation was made, either expressly or by silence, and the representation amounted to a misrepresentation which contravened s 574 of the Act. The section provides False representations about property (1) A licensee or registered employee must not represent in any way to someone else anything that is false or misleading in relation to the letting, exchange or sale of property. Maximum penalty—540 penalty units. [13] If the Tribunal is satisfied there has been a contravention then under s 488 of the Act the Tribunal may allow the claim if it is satisfied on the balance of probabilities that an event mentioned in s 470 has happened. [14] The claim was referred to the Tribunal and after a hearing the Tribunal was satisfied that Airstrike had contravened s 574 by making the representation about Kristins Lane being a temporary access and made an order for compensation in the sum of $200,000.00, 5 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 5 of 15 -- 6 The Reasons Below [15] As there was no real contest as to the circumstances surrounding the negotiations between the Robertsons and Mr Salt, it was unnecessary for the learned Member to make any specific finding of fact about these matters. He proceeded on the basis of the evidence contained in the ―statement of agreed facts and bundle of documents‖6 and the concessions made in the defence as to what was said by Mr Salt. Based on the admissions by Mr Salt as to what was said about the access of Kristins Lane, that is it was temporary, the Robertsons case was that in these circumstances the statement was misleading and deceptive. [16] It seems in reliance on what was pleaded in paragraph 19 of the statement of claim, the learned Member also proceeded on the basis that the Robertsons claim was predicated on a misrepresentation by silence.7 The matters alleged in that paragraph that should have been disclosed to the Robertsons: 19. Mr Salt never qualified restricted or limited his statement that Dalton Road would connect with Days Road at all or by drawing the Applicant‘s attention to the following facts matters and circumstances: (a) that there was no actual funded and scheduled local government proposal to extend Daltons Road to connect with Days road in existence at the time Mr Salt was making the representations to the Applicants; (b) the connection of Dalton Road to Days Road might be complicated or delayed due to the road being planned to cross privately owned land; (c) in order to build the proposed extension of Daltons Road to connect with Days Road privately owned land would have to be resumed either in the course of the local government authority approving development applications on those parcels of land or by the local government authority undertaking compulsory acquisition proceedings against the owner‘s of those properties; (d) if the owners of any of the parcels of land which the proposed road would have to cross undertook any development or building that did not require development approval from the local authority then the proposal to extend Daltons Road to connect with Days Road would be severely and adversely effected; (e) the local government authority was relying on contributions from the owners of the parcels of land which the proposed road would have to cross to fund construction of the extension of Daltons Road to connect with Days Road; (f) if no development activity took place on any of the parcels of land which the proposed road would have to cross then this was likely to cause substantial delays to the proposed extension of Daltons Road to connect with Days Road. 6 Agreed bundle of documents. 7 Reasons [25]. -- 6 of 15 -- 7 [17] However the difficulty with this is the allegation following in paragraph 20 of the statement of claim contends that the above matters were ―all matters that were, or ought to have been, within Mr Salt‘s knowledge‖. Nowhere is it pleaded, nor is there any evidence of, what he actually knew and what he ought to have told the Robertsons as opposed to what he ought to have known. Without this distinction, the pleading on its face, for the purposes of establishing misrepresentation by silence is obviously embarrassing. [18] Be that as it may, the learned Member referred to two cases on misrepresentation by silence, Go & MJ Nominees Pty Ltd v Hollywells Homewares Pty Ltd8 and Re Demagogue Pty Ltd v Ramensky,9 the first where there was a failure to disclose a relevant fact about access to a shopping centre and the second about the history of a car that had been submerged in a flood. Both these cases involve relevant facts within the knowledge of the representor which were not disclosed to the representee. In dealing with the representation by silence the learned Member made reference to only one of the alleged factual matters pleaded in paragraph 19 of the statement of claim to support this conclusion. In paragraph 31 of the reasons he said Mr Salt should have qualified his statement by saying that it was unknown when the Days Road connection would occur because of the need for the owners of the land over which the road would be constructed to finalise their developments before the road would be connected. [19] The difficulty with this conclusion is the evidence of Mr Salt referred to in paragraph 19 of the reasons, which seemed to be accepted by the Tribunal, that there was no ―timeframe‖ for the connection. There is little difference between ―unknown‖ and ―no timeframe‖. [20] The Tribunal also found there was an express misrepresentation by Mr Salt. To better understand the learned Members reasoning paragraphs 30 and 31 of the reasons are set out below: Mr Salt has in his affidavit provided partial copies of decision notices in respect of the development which use the word temporary in regard to the access to the estate from Kristins Lane. The fact that this access is across private land and is not a made road clearly reinforces the temporary nature of it. It is also clear from the decision notices that development of this land and the rest of the land along the Kristins Lane corridor was predicated on each developer dedicating part of the land for the connector road that is the Dalton Street to Days Road connections. The statement that the connection to Kristins Lane is a temporary access road is indeed true but only in relation to it not being a dedicated road it is not true in a temporal sense. It is this that makes the statement misleading because Mr and Mrs Robertson were lead to believe that the access was temporary in regard to it being short term as in the temporal sense and they associated its short term nature to the timing of the connection of Dalton Street to Days Road. Mr Salt has acknowledged that there was no time frame for the 8 [2010] QSC 169. 9 [1992] FCA 557. -- 7 of 15 -- 8 connection of Dalton Street to Days Road and as such he should have ensured when he spoke to Mr and Mrs Robertson in regard to it that he did not use terminology which could lead them into error, which according to Judge McGill makes the representation misleading as mentioned above. He should have qualified his statement by at least saying that it was unknown when the connection would occur as it would require other developers to finalise their developments before the road would be connected. [21] The conclusion that the statement is misleading is predicated on the finding that the Robertsons understood the meaning of ―temporary‖ to be short term. There is an acceptance that Mr Salt never said the words short term nor did he say or do anything which would suggest that the access was short term. The only evidence that could give rise to such an inference is Mr Salt‘s reference to ―temporary‖ but he also qualified that by saying there was no ―timeframe‖ for the connection to be constructed. [22] Having found the use of the word temporary meant short term, the learned Member was satisfied this was a misrepresentation and therefore the appellant contravened s 574 of the Act. [23] With respect to the applicant‘s reliance on clause 13 of the contract which provides: 13. Representations: The Buyer acknowledges that: a. The Contact, including the schedules, contains the entire agreement as concluded between the parties notwithstanding:- i. any negotiations or discussions before this Contract was signed: ii. Anything in any brochure, report, or other document prepared by the Seller or its Agents for submission to prospective buyers, and b. there has not been any inducement to enter into this Contract by any representation made by or on behalf of the Seller which is not set out in this Contract. [24] The Tribunal found that consistent with what was said in Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd10 that as the contract did not cure the misrepresentation made by Mr Salt clause 13 was not a bar to the Robertsons‘ claim. The evidence about “temporary” [25] During the hearing Mr Robertson was asked questions about the conversation he had with Mr Salt about the Dalton Street/Days Road connection. He agreed that Mr Salt never told him when Dalton Street would be connected to Days Road, nor did Mr Salt put a timeframe on the 10 (2005) QCA 199. -- 8 of 15 -- 9 connection11 nor did he offer any opinion as to when that was likely to happen.12 [26] The basis for Mr Robertson‘s belief that the temporary road would be short term was on his observation of the earthworks being undertaken at the site and Mr Salt‘s ―manner‖.13 [27] Mr Robertson agreed in cross-examination that he never told Mr Salt that, on the basis of the conversations between them, he believed that the road would be built in 6-12 months. This does seem somewhat convoluted, because Mr Salt never said anything to suggest a timeframe along these lines was likely to occur. If this was Mr Robertson‘s subjective belief one has to ask why he did not speak up to seek confirmation from Mr Salt or the vendor that this was the case. It was obviously important to Mr Robertson in making a decision about purchasing the unit, but this opinion he kept to himself. [28] Mr Salt‘s evidence is also in a similar vein. Apart from his evidence in chief contained in his written statement and the admissions in the pleadings, under cross-examination he told counsel for the Robertsons that Dalton Street would be connected in the future and he did not have a timeframe for that connection.14 [29] The only conclusion that can be drawn from the conversations between Mr Salt and Mr Robertson is that, Kristins Lane was temporary, Dalton Road would be connected to Days Road in the future and that there was no timeframe for that connection. Unfortunately, it was only Mr Robertson‘s personal assumption, a subjective opinion, drawn from this evidence that the connection would be built within 6-12 months of mid 2006.15 There is no direct evidence to support his conclusion. Applicant’s submission [30] Because there was no serious dispute about what was said by Mr Salt about the access to the estate, the applicant submits that Mr Salt, could not have had any appreciation of what the Robertsons understood his statements to mean. As he did not hold back any information that was within his knowledge, any contention that there was a misrepresentation by a silence is unsustainable. It is submitted that having used the word ―temporary‖ in addition to saying there was ―no timeframe‖ for the connection to be constructed, there was no need for Mr Salt to qualify or explain what he meant by these statements. For there to be a misrepresentation by a silence the representee must establish that there was some relevant fact or matter within the knowledge of the representor and the representor chooses not to disclose the fact or matter to create a false impression. 11 Transcript 33. 12 Transcript 93. 13 Transcript 93. 14 Transcript 49. 15 Transcript 97. -- 9 of 15 -- 10 [31] Examples of this are the cases of Demagogue and Go & MJ Nominees referred to above. Mr Perry QC, for the applicant, relied on a statement of Gummow J in Demagogue where His Honour considered the question of misrepresentation by a silence. He said: In any case where a failure to speak is relied upon the question must be whether in the particular circumstances a silence constitutes or is part of misleading or deceptive conduct. The expanded meaning given by section 4(2) to ―conduct‖ should not distract attention from the fundamental issue in the case at hand. [32] In Commonwealth Bank of Australia v Mehta16 Samuels JA said: Silence is not misleading only where there is a duty to disclose at common law or in equity. It may simply be the element in all the circumstances of the case which renders the conduct in question misleading or deceptive. [33] In a similar vein in Kimberly NZI Finance Ltd v Torero Pty Ltd17 French J said with respect to a misrepresentation by silence that: However, unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist. [34] Putting the above statements into context here, the fact relied upon, by the respondents is that a connection road would not be constructed in 6- 12 months and not disclosed. The difficulty is that the fact not disclosed did not exist and therefore could never have been within the knowledge of Mr Salt. The contention is that Mr Salt made a misrepresentation by not telling the respondents a fact that he himself did not know. [35] On the basis of these authorities, it is submitted that the silence case that relates to Mr Salt not qualifying or explaining what he meant by the word ―temporary‖ and, as we said, in circumstances where it was never explained or put to Mr Salt the Robertson‘s understanding of the word temporary there could be no misrepresentation by silence. [36] In so far as the applicant‘s liability is based on an express representation, the express representation was that the access was temporary, meaning short term. The applicant submits that such a conclusion is not sustainable on the evidence because Mr Salt‘s unchallenged evidence is that he said that there was no timeframe, and there was no other objective evidence to support an inference that temporary meant short term. Further there is no evidentiary basis to suggest that Mr Salt could have been expected to know that the Robertsons interpreted his statement about the Dalton Street/Days Road connection to mean short term. The fact that he was a real estate agent experienced in the sale of commercial property18 does not mean that his use of the word temporary 16 (1991) 23 NSWR 84. 17 (1989) ATPR digest 46-054 at 53, 195. 18 Statement of Claim paragraph 21. -- 10 of 15 -- 11 could be taken to mean short term in a ―temporal sense‖ rather that meaning not permanent. [37] In addition there was no specific allegation in the statement of claim to the effect that temporary conveyed the meaning short term and Mr Salt must have known this. Mr Salt was never cross-examined as to what he understood the word temporary to mean. In so far as it may be an implied misrepresentation again it is submitted that such a case is not sustainable because the learned Member found that the word ―temporary‖ had a particular meaning, meaning short term and it was Mr Salt‘s obligation, it seems, to qualify or explain what temporary meant. This then takes one back to the misrepresentation by silence. The applicant submits for these reasons that there was no basis upon which the Tribunal could have found that there was a misrepresentation within the meaning of s 574. [38] The applicant also relies on clause 13 of the contract of sale which is commonly referred to as an ―entire contract‖ or ―no representations‖ clause. Not surprisingly the applicant contends that the Robertsons are bound by this clause in the contract and therefore cannot rely on any representation made by Mr Salt. It is said the learned Member fell into error in relying on Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd in concluding that clause 13 was not a bar to the Robertsons‘ claim as this case had specific application to claims for misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). The Respondents’ submissions [39] The respondents contend the use of the word ―temporary‖ and the fact that Mr Salt said there was no timeframe cannot be considered in isolation. One has to have regard to all of the circumstances to understand what was meant by using this terminology. A consideration of the whole of the evidence could only lead to one conclusion that the connection road would be constructed in the short term and this is what the learned Member found. In particular reliance is placed on evidence given by Mr Salt that the road ―was always going to be a temporary connector – temporary access off Kristins Lane‖;19 ―would be connected in the future‖;20 ―there was no indication at that time that there was going to be a delay in that connection‖;21 which clearly suggests that temporary was used in a temporal sense. [40] At the hearing of the appeal the submissions of the respondents seemed to shift ground somewhat to suggest that by saying that the Kristins Lane was a temporary access was of itself a misrepresentation. It is submitted as there was no timeframe for the connection road to be constructed, it could not have been temporary.22 Therefore despite what is pleaded or found by the learned Member it is now contended that if there was no 19 Transcript page 50. 20 Transcript page 51. 21 Transcript page 57. 22 Transcript of the appeal hearing page 32 line 25. -- 11 of 15 -- 12 timeframe for the construction of the connection road, that is a point in time when it was going to be constructed, the access could not be said to be temporary. This is somewhat confusing because the access was in fact temporary, meaning not permanent, so what was Mr Salt to say about the access, perhaps nothing at all, if so then given his knowledge this would no doubt be a misrepresentation by silence. A little more will be said about this later. [41] By reference to and reliance on the cases referred to above, that statement must be considered in the circumstances of the case. In particular reliance is placed on the statement in Go & MJ Nominees that the ―relevant circumstances show a need for some qualification to be attached to that statement‖.23 [42] The respondents submit that a critical aspect of the case is that the statement was false and misleading because Mr Salt failed to properly clarify that temporary did not mean in the short term or 6 – 12 months because he ought to have known this was not the case in the circumstances. The only sensible way the word temporary could be construed is in a temporal sense, meaning short term as the learned Member found. [43] As for clause 13 of the contract, the respondents submit that not only does Downey support the conclusions reached, it is the only sensible application of the principle that a remedial consumer legislation of this kind cannot be contracted out of. Discussion [44] This claim was brought under s 574 of the Act. For a claim against the fund to succeed the respondents must establish on the balance of probabilities to the requisite standard24 that the applicant through its agent Mr Salt, made a representation that was false and misleading in relation to the sale of the industrial unit at the Coomera Business Park. [45] As the cases referred to above demonstrate a representation that is false and misleading can be either an expressed representation or can be a representation by a silence in not disclosing a relevant fact or matter that is within the knowledge of the representor. Here there seems to be little doubt as to what Mr Salt knew about the temporary nature of the access to the business park. The access from Kristins Lane was temporary or not permanent and he did not have a timeframe for when the connection road between Dalton Street and Days Road would be constructed. [46] The Robertsons contend that the use of the word temporary was false and misleading because, as the learned Member found, it was a reference to it not being true in the temporal sense. The mischief in the use of the word temporary is that it could be understood to mean of short duration but 23 [2010] QCA 368 at [51]. 24 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 12 of 15 -- 13 there was no timeframe for the construction of the connection road. In those circumstances the access from Kristins Lane could not be said to be of limited duration or temporary. The respondent contends that this is a finding of fact and the applicant has not established any basis to warrant the Appeal Tribunal interfering with that finding of fact. [47] The respondents now say that knowing there was no timeframe for the construction of the connection road to say it was temporary was false and misleading. There might be some substance to this argument if it had not been specifically said, in addition to the use of the word temporary, that there was no timeframe for it. This can only mean that it will stop being temporary at some unspecific time in the future. [48] Temporary must, in the circumstances, be construed having regard to the whole of the representation made about access to the estate. The Robertsons knew the access road was not a permanent road at the time they entered into the contract. They also knew that there was going to be a connection road but there was no timeframe or indication when that connection road would be open. To find that Mr Salt should have realized that they understood temporary, in circumstances where they also knew there was no timeframe for the permanent connection, meant short term is a conclusion contrary to the known facts. In these circumstances temporary has two meanings, firstly, in the temporal sense as found by the learned Member but also, and secondly being non permanent access because of the proposed connection to Days Road. [49] On the basis of the submissions made by the Robertsons the notion that there was a misrepresentation by silence falls away. Mr Steele, counsel for the Robertsons conceded as much by contending that the use of the word ―temporary‖ in the particular circumstances of this case was an express representation and was false and misleading.25 In so far as it is said that Mr Salt did not qualify his statement by saying it was unknown when the connection would occur,26 the evidence demonstrates that he did because although there was no specific finding, it was not contested that Mr Salt said there was no timeframe for the connection.27 It would seem that Mr Salt conveyed all of the information that he had with respect to the proposed connection road when discussing the purchase with the Robertsons. [50] Whether there was a misrepresentation can be tested another way. The Robertsons complaint is about the use of the word ―temporary‖ in reference to the Kristins Lane access. If Mr Salt, armed with the knowledge about how the estate was to be developed, had said nothing about the access being temporary or not permanent, or that the Days Road connection road was ultimately going to be the permanent access, then, in these circumstances, there would justifiable grounds for complaint about misrepresentation by silence. So, it seems from the Robertsons 25 Hearing transcript page 32 line 25. 26 Reasons paragraph 31. 27 Reasons paragraph 19. -- 13 of 15 -- 14 perspective, Mr Salt would have been the subject of criticism about anything he said or did not say about the access to the estate. [51] At the time of signing the contract it is an inescapable conclusion that the Robertsons were armed with all of the same information as Mr Salt. This enabled them to make an informed decision about the purchase. If they subjectively believed that the reference to the temporary road, in the circumstances of the case, meant short term, it would be unreasonable to inflict the consequences of that understanding on the applicant or further to conclude that this meant Mr Salt made false and misleading statement. This was at the heart of the learned Member‘s decision. Conclusion [52] Once the notion that the word temporary meant short term is removed from the equation, there could be no finding that any representation that was said to be false and misleading was made so as to lead to a conviction under s 574 of the Act. [53] With respect to whether clause 13 of the contract and whether this provides a complete release to the applicant, it is unnecessary to decide that point because of the conclusions reached above. However, it is worth noting that even though Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd was a case involving the Trade Practices Act it is difficult to see why it would not have application to consumer legislation of this type specifically designed to protect consumers from entering into transactions on the basis of false and misleading statements. We also observe that Airstrike was not a party to the contract and therefore cannot see how it could take advantage this provision in the contract. [54] The conclusions reached by the learned Member were not open on the evidence before him. It follows that this constitutes an error of law, leave to appeal is unnecessary. Mr Salt did not withhold any material fact within his knowledge which, if known to the Robertsons, may have resulted in a different outcome for them. The express representation about the temporary road was true and cannot be said to be false or misleading. There was no misrepresentation by silence. Therefore the decision below should be set aside28 and the application for a claim against the Claim Fund dismissed. [55] There is a related appeal on the costs decision29 which was consolidated with this appeal. In view of our decision to dismiss the claim against the Claim Fund, the costs decision should also be set aside. [56] The applicant seeks costs of the proceeding in the Tribunal and this appeal in an amount calculated by reference to the District Court Scale of Fees applicable to claims involving amounts in contention of in excess of 28 QCAT Act, s 146. 29 APL195-13 appealing the decision of 10 April 2013 [2013] QCAT 149. -- 14 of 15 -- 15 $200,000. It is appropriate to make directions in respect of the issue of costs. -- 15 of 15 --