A & J Salter P/L as trustee for the a & J Salter Family Trust v B C Hale & Sons Transport P/L & Bruce Hale

[2008] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

A & J SALTER P/L AS TRUSTEE FOR THE A & J SALTER FAMILY TRUST v B C HALE & SONS TRANSPORT P/L & BRUCE HALE

[2008] SADC 145

Judgment of Her Honour Judge McIntyre

11 November 2008

DAMAGES

Contract for sale and purchase of a Kenworth Prime Mover Truck - plaintiff asserts misrepresentation - judgment against 3rd defendant in default of attendance at trial - assessment of damages - Held -  Judgment for plaintiff in the sum of $82,260.55 inclusive of interest.

District Court Rules 1987 R234(2), referred to.

A & J SALTER P/L AS TRUSTEE FOR THE A & J SALTER FAMILY TRUST v B C HALE & SONS TRANSPORT P/L & BRUCE HALE
[2008] SADC 145

1. This matter arises out of a contract for sale and purchase of a 1993 Kenworth Prime Mover truck (“the truck”) for the sum of $82,950.00 inclusive of GST. 

2. The plaintiff company responded to an advertisement on the Internet placed by Truck-Search Caringbah who were originally the first defendants in this action.   Truck-Search Caringbah was acting as agent for the second and third defendants who are the owner of the truck.  At the time of the purchase of the truck certain representations were made in relation to the vehicle.  Specifically, that it had an “out of chassis rebuild” and had travelled about 250,000 kilometres subsequent to the rebuild.  The plaintiff says that this constituted a misrepresentation because in fact the truck had travelled about 575,000 kilometres subsequent to the rebuild.  

3. The truck was collected by the plaintiff company and driven from the outskirts of Sydney to Clare in South Australia.  During this journey the vehicle gave trouble and required a series of repairs.  When the truck was put back in operation following those repairs, it again had engine trouble and ceased to operate on 29 November 2005.  The vehicle was at that stage in New South Wales and had to be transported back from New South Wales to South Australia at cost to the plaintiff company.  Additional repairs were carried out from 29 November to 15 December 2005 during which time the vehicle was off the road.

Preliminary matters

1. The plaintiff resolved its differences with the first defendant, Dawson Management Services Pty Ltd trading as Truck-Search Caringbah, on the basis of a contribution of $7,000 by the first defendant towards its costs.  A notice of discontinuance was filed on 13 November 2007. 

2. The second defendant B & C Hale & Sons Transport Pty Limited is now in liquidation.  This leaves the third defendant Mr Bruce Hale.  Mr Hale did not attend the trial and accordingly the plaintiff is entitled to judgment in default of attendance pursuant to District Court Rule 1987  Rule  234(2).

Evidence & Findings

1. The matter proceeded as an assessment of damages.  Evidence was called from Mrs Joanne Salter a director of the plaintiff company.

2. A number of documents were tendered during the course of Ms Salter’s evidence as follows:

   ·Contract dated 17/6/05 for sale of truck –                  exhibit P1

   ·Bundle of Esanda Mortgage documents x 2 –             exhibit P2

   ·Cavpower Invoices –   exhibit P3

   ·Truckworks Australia invoice –   exhibit P4

   ·Invoice from Ebenreuter Diesel Service Pty Ltd –      exhibit P5

   ·Profit and Loss statement of plaintiff company –      exhibit P6

1. I accept Mrs Salter’s evidence concerning the costs incurred by the plaintiff in consequence of the two breakdowns of the truck.  The invoices, mortgage documents and sale contract support her evidence. 

2. The plaintiff says that it has incurred costs of repair in respect of the truck. These are outlined in the invoices[1] and can be summarised as follows:

   Repair of timing sensor  $ 1,172.00
     Repair of fuel pump  $ 9,500.00

   Rebuild of motor  $25,000.00

   Total                  $35,672.00

   [1] Exhibits  3 and P5

3. The plaintiff says that this should be discounted by 30% taking into account the normal service life of a reconditioned motor being between $800,000 to 1.2 million kilometres.[2]  This leaves a total of $24,970.40.  I accept this calculation and find that the plaintiff is entitled to damages in respect of the repairs in the sum of $24,970.40.

   [2] Transcript p10

4. The vehicle broke down in Narrandera, New South Wales on 29 November 2005 and needed to be transported to South Australia at a cost of $6,160.00.[3]

   [3] Exhibit P4

5. In addition, due to the mechanical work on the truck, the plaintiff lost income.  It was unable to use the truck for the period 18 June 2005 to 31 August 2005 and 29 November 2005 to 15 December 2005.  The plaintiff’s profit and loss statement was tendered[4] and Mrs Salter gave evidence concerning the manner in which she calculated the lost income.  The truck was off the road for 13 weeks in total.   Mrs Salter took the gross income the plaintiff earned for the financial year 1 July 2005 to 30 June 2006 and deducted all items of expenditure that would not have been incurred while the truck was operational such as fuel, oil, repairs and maintenance.  On her calculations the loss was $1,994 per week making a total of $29,922.  This is somewhat more than was originally claimed in the statement of claim[5] where the amount claimed was $19,374.50.  I consider however that the basis on which Mrs Salter has calculated the amount is appropriate and accordingly I award the sum of $29, 922. 

   [4] Exhibit P6

   [5] Paragraph 13.3

6. In addition there were associated interest and finance costs.  The plaintiff was required to obtain additional finance to fund the repairs on the truck.  The cost of this was $989.[6]  The plaintiff also seeks the difference between the interest the plaintiff was obliged to pay on the original finance terms and the additional finance terms in the sum of $8,013.35.[7]

   [6] Exhibit P2

   [7] Exhibit P2

Summary

1. I accept Ms Salter’s evidence and I assess the plaintiff’s damages as follows:

   Repairs  $24,970.40
     Cost of transporting vehicle to SA                 $ 6,160.00
     Loss of income  $29,922.00
     Additional finance costs  $ 9,002.35

   Total  $70,054.75

2. In addition the plaintiff has claimed interest from the date of the issue of proceedings.  Proceedings were issued on 23 March 2006, which is approximately 2 years and 8 months to date of judgment.  I utilised an interest rate of 6.5% per annum to assess the plaintiff’s entitlement to interest in the sum of $12,200.00.

Orders

1.      That there be judgment for the plaintiff against the third defendant
                  in default of the third defendant’s attendance in the sum of   $82,260.55.

2.     That third defendant pay the plaintiff’s costs on a party/party basis. Such costs to be reduced by the sum of $7,000 to reflect the payment   by the first defendant.