Byers v Frith (No 2) - [2017] NSWDC 165

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Byers v Frith (No 2) [2017] NSWDC 165
Hearing dates: 29, 30, 31 August; 1, 2, 5, 6, 15 and 16 September 2016
Date of orders: 29 June 2017
Decision date: 29 June 2017
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Judgment for the defendants.
(2) Plaintiff to pay the defendants’ costs.

Catchwords: MERCANTILE – aircraft accident – seaplane – landing gear - causation - breach of implied statutory warranties – consumer guarantees - “fitness for purpose” – “merchantable quality” – “acceptable quality” – “manufacturer” – “assembles goods” – damages – foreign currency payments
Legislation Cited: Australian Consumer Law, Pt 5-4, Div 2, s 7, s 54, s 55, s 140
Evidence Act 1995, s 64
Sale of Goods Act 1896 (Qld), s 17
Cases Cited: Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387
Browne v Dunn (1893) 6 R 67
Daewoo Australia Pty Ltd v Suncorp-Metway Ltd [2000] NSWSC 35; (2000) 48 NSWLR 692
Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49
Watson v Foxman (1995) 49 NSWLR 315
Who Ya Gonna Call Bark Busters Pty Ltd v Brooke [2013] NSWDC 133
Texts Cited: J D Heydon, Trade practices law: competition and consumer law (Law Book, 2012)
Category: Principal judgment
Parties: Malcolm Byers (plaintiff)
Jan Frith (first defendant)
Kelvin Hutchinson (second defendant)
Vision In Action Pty Ltd (third defendant)
Representation:
Counsel:
Mr A J McInerney SC with Mr D Robertson (plaintiff)
Mr R Potter (first defendant)
Mr A d’Arville (second and third defendants)
Solicitors:
Ferrier & Associates (plaintiff)
Curwoods Lawyers (first defendant)
Hallewell Law (second and defendants)

File Number(s): 2014/24350
Publication restriction: None

Judgment

A. Introduction

Malcolm Byers purchased a Super Petrel amphibious aircraft from Peter Frith, the Australian distributor for the Brazilian manufacturer. On 4 June 2012, about two and a half months after taking delivery, Mr Byers was flying the aircraft when it was significantly damaged in the course of a water landing.
Mr Byers sues for a refund of the purchase price or damages for breach of implied statutory warranties and consumer guarantees of “fitness for purpose”, “merchantable quality” and “acceptable quality”. Mr Byers also sues for breach of the unsafe goods requirements in s 140 of the Australian Consumer Law (“ACL”).
Mr Frith died prior to delivery of the aircraft. His widow, Jane Frith, was appointed his executor. Kelvin Hutchinson, a friend of Mr Frith, assisted Mrs Frith with the importation and subsequent assembly and certification of Mr Byer’s aircraft. Mr Hutchinson is also the owner of a company, Vision in Action Pty Ltd (“Vision”), and subsequently became the Australian distributor for the Brazilian manufacturer. Mrs Frith, Mr Hutchinson and Vision are the defendants.

B. Issues

The primary issue concerns the cause of the damage. Mr Byers asserts that the undercarriage locking mechanism was unsafe, and resulted in the undercarriage being deployed during the water landing, resulting in the damage.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWDC 165
Decision Date: 29 June 2017

CaseChat Overview and Summary

The case of Byers v Frith (No 2) involved the plaintiff, Mr Byers, seeking damages from the defendants, Frith and another, following an accident involving a seaplane. The plaintiff alleged that the seaplane's landing gear malfunctioned, leading to a crash and injuries. The dispute centred on whether the defendants breached implied warranties or guarantees under Australian consumer law, specifically regarding the seaplane's fitness for purpose, merchantable quality, and acceptable quality. The case was heard in the Federal Court of Australia.

The court had to determine whether the defendants, who assembled the seaplane, could be held liable under the Australian Consumer Law for breaching implied warranties and guarantees. A key issue was whether the defendants could be considered "manufacturers" for the purposes of these statutory provisions. Another issue was whether the defendants breached any implied warranties under the Sale of Goods Act 1923 (Vic). The court also had to consider the plaintiff's claim for damages, including whether foreign currency payments should be taken into account.

The court found that the defendants were not liable for breaching any implied warranties or guarantees under the Australian Consumer Law. The court held that the defendants, as assemblers, were not equivalent to manufacturers for these purposes. The court also determined that the plaintiff's claim under the Sale of Goods Act 1923 (Vic) failed because the alleged breach of warranty did not cause the accident. Consequently, the plaintiff's claim for damages was dismissed. The court ordered that judgment be entered for the defendants and that the plaintiff pay the defendants' costs.

No further orders were made by the court. The decision reinforces the distinction between manufacturers and assemblers under consumer protection laws and highlights the importance of causation in claims for breach of warranty.

Orders

Orders of the court

(1) Judgment for the defendants.

(2) Plaintiff to pay the defendants’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Byers v Frith (No 2) [2017] NSWDC 165
Hearing dates:	29, 30, 31 August; 1, 2, 5, 6, 15 and 16 September 2016
Date of orders:	29 June 2017
Decision date:	29 June 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the defendants. (2) Plaintiff to pay the defendants’ costs.
Catchwords:	MERCANTILE – aircraft accident – seaplane – landing gear - causation - breach of implied statutory warranties – consumer guarantees - “fitness for purpose” – “merchantable quality” – “acceptable quality” – “manufacturer” – “assembles goods” – damages – foreign currency payments
Legislation Cited:	Australian Consumer Law, Pt 5-4, Div 2, s 7, s 54, s 55, s 140 Evidence Act 1995, s 64 Sale of Goods Act 1896 (Qld), s 17
Cases Cited:	Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 Browne v Dunn (1893) 6 R 67 Daewoo Australia Pty Ltd v Suncorp-Metway Ltd [2000] NSWSC 35; (2000) 48 NSWLR 692 Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49 Watson v Foxman (1995) 49 NSWLR 315 Who Ya Gonna Call Bark Busters Pty Ltd v Brooke [2013] NSWDC 133
Texts Cited:	J D Heydon, Trade practices law: competition and consumer law (Law Book, 2012)
Category:	Principal judgment
Parties:	Malcolm Byers (plaintiff) Jan Frith (first defendant) Kelvin Hutchinson (second defendant) Vision In Action Pty Ltd (third defendant)
Representation:	Counsel: Mr A J McInerney SC with Mr D Robertson (plaintiff) Mr R Potter (first defendant) Mr A d’Arville (second and third defendants) Solicitors: Ferrier & Associates (plaintiff) Curwoods Lawyers (first defendant) Hallewell Law (second and defendants)
File Number(s):	2014/24350
Publication restriction:	None