Cary Boyd v Agrison Pty Ltd - [2014] VMC 23

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

No C13264127

CIVIL DIVISION

BETWEEN:

CARY BOYD

Plaintiff

-and-

AGRISON PTY LTD (A.C.N. 151 983 603)

Defendant

MAGISTRATE:  GINNANE
WHERE HELD:   Melbourne
DATE OF DECISION:  3 October 2014
CASE MAY BE CITED AS:           Boyd v Agrison Pty Ltd

REASONS FOR DECISION

Catchwords – consumer guarantees under Australian Consumer Law – purchase of tractor – whether tractor was of acceptable quality – whether tractor suffered “a major failure” – period of rejection- time at which failure comes to attention of consumer – whether consumer entitled to rely on defects not relied on at time of rejection but at time of trial to establish unacceptable quality – adverse inference due to failure of defendant to adduce relevant and probative evidence

APPEARANCES Counsel Solicitor

For the Plaintiff Mr Z S Partos MSB Lawyers

For the Defendant Mr M C R White Lawcorp lawyers

HIS HONOUR:

An overview of the dispute

Mr Cary Boyd lives in Evandale Tasmania. He has lived there for 28 years. He worked for the Launceston Council and was earning additional income as a slashing contractor. He had a familiarity with tractors and as at 2011 he owned two. Late in 2011 he contacted Agrison. Agrison is a company that imports machinery including tractors from China and sells them under the Agrison brand name. They are located in Campbellfield, Victoria. Mr Boyd came to Melbourne together with his wife to look over a tractor at Agrison’s premises. He purchased an Agrison tractor and he organized and paid to have it shipped it back home. Mr Boyd says the tractor was rife with problems from the outset of its delivery and was unsafe to drive and he was unable to use it for his intended purpose of work and so he rejected it. He sues Agrison for breach of consumer guarantees provided under the Australian Consumer Law (the ACL). Mr Boyd says that he was entitled to reject the tractor because of the defects and that furthermore the defects amounted to a major failure within the meaning of the ACL.

Factual background

Mr Boyd’s work slashing work was seasonal and his old tractor had neither a cabin nor heating and therefore his ability to market his slashing services was reduced. Mrs Boyd testified that she was concerned for her husband’s welfare working in an exposed environment and in a Tasmania winter.

Mr Boyd said he became aware of Agrison from a publication. He telephoned them in late 2011. He spoke with Allan Gonulla[1] and Peter McFarland. Mr Boyd told Agrison what he was in the market for a tractor. Agrison does not dispute that it was aware of the plaintiff’s purpose underpinning his wish to purchase a tractor or that any tractor he might purchase would need to be capable of travelling long distances on open roads to and from contract slashing jobs. Agrison sent the plaintiff a brochure and also a quotation for a “2011 Agrison FT 504 Series 50 HP Turbo Diesel Tractor”.
[1] Mr Boyd initially remembered Mr Gonulla as Mr G

Mr Boyd paid Agrison a sum of money prior to purchase. This payment was described in oral evidence as either a “deposit”, or a payment to evince the plaintiff’s bona fides as a prospective purchaser and after it was made, Mr Boyd was flown to Melbourne together with his wife and accommodated by Agrison so as to enable him to look over the tractor first hand.

On 10 January 2012 Mr Boyd and his wife visited Agrison’s premises in Campbellfield. They were accompanied by Peter McFarland. Mr Boyd was afforded a demonstration of the tractor’s features. This is not disputed by Agrison. Mr Boyd was directed to a “2012” model tractor and not the 2011 model the subject of the quotation because Mr McFarland told him that all the 2011 models had been sold and Agrison had no more in stock. Mr McFarland suggested that Mr Boyd take the 2012 model for a test drive, which he did. Mr Boyd said Mr McFarland told him that he could buy the 2012 model for the 2011 quoted price. Mr Boyd said he purchased what he believed to be a 2012 tractor. He paid the balance of the purchase price by cheque. The cost of the tractor was $28,360.00 inclusive of GST. Mr Boyd subsequently paid the freight charges associated with shipping the tractor to Tasmania. Some matters beyond the responsibility of Agrison occasioned a day’s delay in the delivery of the tractor from Victoria to Tasmania. It landed in Tasmania on 23 February 2012. The plaintiff then arranged to have the tractor trucked to him in Evandale.

The plaintiff testified that there were a number concerns that were apparent when he took possession of the tractor on its arrival in Evandale. The tractor was a 2011 model and not a 2012 model. There was an oil leak, there was no handbook, and it was fitted with rusty chains.

On 24 February 2012 Mr Boyd telephoned Agrison and made a request for parts. Despite subsequent requests to Agrison parts were not forthcoming. Mr Boyd also said the tractor experienced hydraulic pressure leaks.

Mr Boyd said that from late February 2012 to mid March 2012 matters became worse. In particular, Mr Boyd said that when in motion the tractor was prone to uncontrolled bouncing and he considered this unsafe. He said that on 2 April 2012 he again spoke with Agrison. Parts had not arrived and Agrison once more promised their supply. Mr Boyd said that he told Agrison that he rejected the tractor. The defendant does not deny that Mr Boyd purported to reject the tractor. Mr Boyd subsequently confirmed his intention to reject the tractor by an email dated 11 April 2013. Agrison had previously asked Mr Boyd to provide it with a video of the tractor in use and asked for it on a subsequent occasion but Mr Boyd declined, citing concerns for his safety in using the tractor in order to record it in motion.

Mr Boyd said he calculated having made use of the tractor for the purpose of contract slashing work to the extent of approximately 4 hours. This could not be verified because the hour clock on the tractor is not accurate but it bears a reading of 28. However, I find no reason to reject the plaintiff’s evidence of the extent of use which I am satisfied was very minimal and the fact that the engine is recorded as having been in use for a longer period of time is not evidence that satisfies me that the tractor been put to use for the disclosed purpose for a greater period of time than testified to by Mr Boyd.

On 5 May 2012 a local diesel mechanic attended on the plaintiff. He adjusted the idle but could not remedy the steering. The mechanic also made notes of the existence of a serious leak. The plaintiff attended on Midland Tractors to obtain a quote to get the tractor working properly.

The plaintiff subsequently involved the office of Consumer Affairs and thereafter solicitors. On 19 September 2012 the plaintiff sent a further final rejection notice by way of solicitors’ letter. The plaintiff commenced proceedings in December 2012.

The witnesses

The first witness I heard from in support of the plaintiff’s case was the plaintiff’s wife. Mrs Boyd is a care worker to the elderly. Mrs Boyd accompanied her husband to Melbourne to view the Agrison tractor. She said that she and Mr Boyd were collected at the airport by Peter McFarland. A discussion occurred en route to the Agrison site in Campbellfield. Mr McFarland was told that Mr Boyd earned his income as a slashing contractor and he needed a tractor that was reasonably fast to get him to various locations. Mrs Boyd said that McFarland directed them to a 2012 model tractor but said it had been sold but nonetheless he suggested to Mr Boyd that he take it for a drive because this particular model tractor would suit him “right down to the ground”. Mrs Boyd testified that although Mr McFarland said that Agrison didn’t have 2012 tractor it had something similar that was a 50 HP. Mrs Boyd testified that Mr McFarland said if the Boyd’s proceeded to make a purchase they would be supplied with a 2012 model at the 2011 price. Mrs Boyd could not say if she was 100% certain that the purchase included a slasher attachment.

Mrs Boyd was asked about other tractors owned by Mr Boyd. She said he owned an old Massey Ferguson and one other. She said neither of them had cabins and so her husband was restricted to working only in clement weather.

It was suggested to Mrs Boyd in cross-examination that Mr McFarland had said that the Boyds would be purchasing a 2011 model. Mrs Boyd refuted this and maintained under cross-examination that Mr McFarland promised that they would be provided with a 2012 model. I found Mrs Boyd to be a careful and straightforward witness in the giving of her account of matters. I accept her evidence. However the 2011 model tractor was accepted by the plaintiff.

Mr Cary Boyd

Mr Boyd testified. He said that in the period prior to December 2011, his existing tractor was becoming increasingly worn out. It lacked an enclosed cabin which limited the times during the year that he could work as a slasher. He said that he was driving approximately 80 km’s a day. Mr Boyd said he had particular requirements for any tractor and these were that it would be fast on the road, safe to drive and stable.

Mr Boyd said he learned of Agrison after reading about them in a local magazine. He saw a particular offer in which it advertised a tractor with a slasher and a front-end loader. Mr Boyd said he phoned Agrison tractors and initially spoke with Alan Gonulla. He told him that he was a slashing contractor from Tasmania who was in the market to purchase a tractor that was fast, but stable and that could be registered for road use. Mr Boyd said that Mr Gonulla told him the tractor he was inquiring about in the advertisement could achieve 40 km/h. Mr Boyd was sceptical of this claim and said he specifically questioned Mr Gonulla about the accuracy of it whereupon Mr Gonulla corrected himself and said that it could do 35 to 38 km/h. Mr Boyd said he was told that a salesman from Agrison would telephone him. Mr Boyd next spoke with Mr Peter McFarland. Mr Boyd said he also told Mr McFarland that the tractor needed to be stable. He explained that he had worked for Launceston City Council and had his own client base but that he was looking to increase his contracting work from seasonal to an ongoing year-round business. Mr Boyd said that he was invited to come to Victoria and see the tractor for himself. By email dated 12 December 2011 Agrison provided Mr Boyd with a pricing list and catalogue. Mr Boyd paid Agrison $2,000 as an indication of his bona fides and he and his wife were flown to Melbourne and accommodated. The $2,000 “deposit” is recorded for a 2011 model tractor.

Mr and Mrs Boyd were collected at the Melbourne airport by Mr McFarland. Mr Boyd said that on the journey from the airport to Campbellfield he and Mr McFarland discussed his career including his present work performing seasonal slashing work. He said he told Mr McFarland that any tractor he purchased would need to be fast and stable. Mr Boyd said Mr McFarland said the tractor he would be looking at would be cool in the summer and warm in winter. On arrival at Campbellfield Mr Boyd said that he was taken directly to the tractor. He was however told that it had been sold and Mr McFarland said that Agrison didn't have any more 2011 model tractors in stock but it would let him have the 2012 model at the 2011 price. Mr Boyd said he drove the tractor around the perimeter of the Agrison premises. He said the tractor did not have a slasher attached during the test drive. He said it was a bit bouncy. Mr Boyd said Mr McFarland told him that he would receive the same sort of tractor however it would not include a DVD player. Mr Boyd was not concerned about a lack of a DVD. He said he noticed an oil leak at the back of the tractor which he pointed out but that Mr McFarland said this was run-of-the-mill and that the hydraulic oil was always overfilled in the tank prior to sale and delivery.

Mr Boyd said he and his wife Mr McFarland went inside to the Agrison factory and examined other tractors. Mr Boyd decided on the purchase on his way back into the city with Mr McFarland. He said he wrote the cheque for the balance of the purchase price in Mr McFarland's car. Mrs Boyd had testified that she considered that her husband was acting precipitously.

There were some additional items of expense that Mr Boyd paid and these were to cover transportation costs on the wharf and delivery to Tasmania.

Mr Boyd was directed to the invoice dated 20 February 2012 that recorded the purchase of an Agrison 2011 model tractor.

The tractor arrives in Tasmania

Mr Boyd said that the tractor arrived in Tasmania on the 23 February 2012. He said that he observed that it was dirty and had not been detailed and oil was leaking from the back-end. Mr Boyd telephoned Agrison the following day and spoke to Alan Gonulla. He referred to the lack of presentation of the tractor and that hydraulic oil had leaked into the cabin. In addition he told Mr Gonulla that the bonnet struts would not hold up the tractor bonnet. Mr Boyd said that Mr Gonulla promised to send him spare parts. Mr Boyd was understandably concerned and asked why a new tractor would need parts. There was no satisfactory explanation offered to Mr Boyd.

The diary entries

Mr Boyd referred to his diary in which he made entries concerning the tractor. The relevant entries commence on 29 February 2012. The entries record instances of bouncing and skipping when driven on the road. The diary entries do not however record that Mr Boyd mentioned bouncing as a matter of concern in conversation with Alan Gee. On 2 March 2012 the diary records a purchase by the plaintiff of new chains because the chains that came with the tractor were rusty. On 5 March 2012 there is an entry to the effect that Mr Boyd put water in the back tyres and this “seemed to take the bounce out” but the tractor still did not steer straight. The diary for 6 March 2012 records what would prove to be the only paid work Mr Boyd obtained from the use of the tractor. The plaintiff nonetheless encountered a difficulty on this particular day because the tube inside the tyre perished. Mr Boyd described the tractor’s road performance on the bitumen surface as “pathetic”. Subsequent entries do not indicate any improvement from Mr Boyd’s perspective of the tractor’s performance. For example, on 15 March 2012 the diary entry records his view of the tractor as rather dangerous. He said that as long as he only “crawled along at low speed it was not too bad”. The entry for 21 March 2012 records “steering went crazy and front wheel fell off”.

On 26 March 2012 Mr Boyd again spoke with Alan Gonulla. There was a further discussion with Agrison on 2 April 2012 concerning the lack of action to effect repairs to the tractor. Mr Boyd said he was told that a local mechanic would be despatched. A further period of time elapsed before a mechanic arrived on Saturday 5 May 2012. On Tuesday 8 May 2012 Mr Boyd said he took the tractor out again but it bounced so badly that he left it at a neighbour’s property.

Mr Boyd was asked to detail his account of events that surrounded the arrival of Mr Jeremy Banks in Tasmania and the circumstances attendant his testing of the tractor. Mr Banks is an expert relied upon by the defendant. He is well credentialed. He revealed in his evidence that he has a well established history of providing expert advice to the defendant in matters of a technical nature concerning machinery sold by it.

Mr Boyd said that Mr Banks experienced immediate difficulties with steering and in manoeuvring the tractor through the gate of the property in which it had been left by Mr Boyd and that Mr Banks said the tractor was dangerous and not driveable. Mr Banks denied this in his evidence. Mr Boyd said he observed that Mr Banks examined the tyre wear and the oil leakage.

Mr Boyd is cross-examined

Mr Boyd disputed the defendant’s assertion that he had been sent the tractor specifications by means of an attachment to an Agrison email dated 9 January 2012. Mr White of counsel who appeared for the defendant referred Mr Boyd to the technical specifications contained with the email that records the tractor’s top speed as 33.77 kph. Mr Boyd said that had he been aware of this specification for speed he would not have purchased the tractor. One of the imperatives of any tractor purchase by Mr Boyd was of course the capacity to travel considerable distances and thus the speed of a tractor was a matter of signal importance to him.

Mr Boyd agreed that it was not until he took possession of the Agrison tractor that he had driven a tractor with a front end loader and a slasher attached.

Mr Boyd agreed that the tractor he drove at Agrison was bouncy although he said it did not have a slasher attached to it at the time of the test.

Mr Boyd was challenged about the extent that his diary entries were contemporaneous records of events. Mr White took Mr Boyd to a number of entries to suggest that some of them had been enhanced on subsequent dates. I am satisfied that the diary entries record Mr Boyd’s experiences and use of the tractor. I am not persuaded that they were the subject to self serving entries made or added to after the event in a way that should cause me to treat them with suspicion.

The plaintiff agreed with Mr White that his diary entry dated 5 March 2012 recorded an improvement in bounce as a result of having added water to tyres. It also improved after Mr Boyd collected and attached the slasher on 21 March 2012. Mr White asked Mr Boyd why in correspondence with Consumer Affairs he had included the statement that, “Adding weight does not make any difference”. Mr Boyd did not provide a satisfactory answer to the question. I am satisfied that the bounce was to some degree ameliorated.

The plaintiff agreed with Mr White that at this point in time, the principal concerns he had were the tractor’s limitation on speed and his belief that it was dangerous when driven and that the other matters of complaint were “incidental”.

The plaintiff accepts that he covered the tractor with a blanket and left it an open field on a neighbour’s property and that from at least May 2012 he took no other steps to protect the tractor from the elements. Hence the defendant suggested it was not reliable to associate the cause of the degradation subsequently observed to the tractor as a defect that beset it as opposed to being inflicted as a result of being left to the elements.

In re-examination, the plaintiff said that he had driven “plenty of tractors with front end loaders” and while he had experienced a small amount of bounce, it had “been nothing like the Agrison”. Mr Boyd said that despite the improvements he recorded on 5 and 6 March 2012, the steering was “still broken” and “it won’t steer straight”, invariably straying to the left. Despite the supposed inclusion of power steering, Mr Boyd said it required significant physical strength on his part to correct the over-steer.

The plaintiff said that although price was a factor in his purchase of the Agrison tractor so too were other factors including, the existence of a 5 year warranty which he said conveyed to him that Agrison regarded the machinery sold by it as reliable.

Mr Saylev

Mr Saylev is an expert witness relied on by the plaintiff. He has an impressive and extensive curriculum vitae. He prepared two reports. The first is dated 29 June 2013 and the second is dated 15 November 2013 (Exhibits P11 and P12). He inspected the tractor on 28 June 2013. The scope of the first report is expressed to comprise an investigation into the safe and compliant condition of a road registered tractor. It was prepared after the inspection undertaken by Mr Banks. The report is detailed and makes reference to a myriad of matters in which the tractor is alleged to be defective in terms of non-operative features, perhaps among the most fundamental being its inability to obtain speed, the extent of its wear and tear, its corrosive state attributable to rust, misalignment of bonnet panels and defective steering geometry.

Mr Saylev was subjected to a substantial cross-examination. In particular he was challenged regarding the road test undertaken by him and the methods he used for testing the tractor and the hierarchy of defects he observed on inspection.

Before dealing further with the evidence, it is well to lay out the framework of the plaintiff’s action in law.

The causes of action

Mr Boyd brings his claim pursuant to the ACL and, in particular, it is alleged that the tractor sold by Agrison failed to comply with one or more of the non-excludable consumer guarantees under the ACL.

Agrison doesn’t dispute that Mr Boyd is a consumer within the meaning of the ACL and that it is a supplier under the ACL. The consumer guarantees Mr Boyd relies on are:
·A guarantee that the tractor was of acceptable quality ( s 54(1) of the ACL);

·A guarantee that the tractor was reasonably fit for any disclosed purpose, and for any purposes for which the supplier represents that they are reasonably fit (s 55(1) of the ACL);

·A guarantee that the tractor would correspond with the demonstration model in quality, state or condition (s 57(1) of the ACL);

·A guarantee that the tractor sold to Mr Boyd would correspond with the description applicable to it (s 56(1) of the ACL)

Consumer guarantees are provided for under the ACL previously comprised non-excludable warranties and conditions that were implied into consumer contracts under the Trade Practices Act 1974.
Agrison does not dispute that the consumer guarantees relied on by the plaintiff applied to the sale of the tractor. However, it denies having committed a breach of them.

What is the work of consumer guarantees provided for under the ACL?

The ACL is beneficial legislation and includes the provision of remedies to consumers such as Mr Boyd where there is a breach of consumer guarantees. As mentioned, Mr Boyd purported to reject the tractor. Whether his conduct amounted to a valid rejection is a matter of contention but in the event I find that there has been “a major failure” and subject to the satisfaction of certain other requirements Mr Boyd will be entitled to a refund and ancillary costs.

In order to succeed in his action in this Court Mr Boyd must prove on the balance of probabilities the following:
(i)That the consumer guarantees relied on are applicable;
(ii)That the tractor has the attributes and or defects;
(iii)That by reason of the attributes and/or defects, or by reason of one or more of them, the tractor fails to comply with one or more of the consumer guarantees;
(iv)That the failure to comply with the guarantees constitutes “a major failure”;
(v)That Mr Boyd notified Agrison of the rejection and has requested a refund;
(vi)That Agrison has failed to accept the rejection and does not intend to refund his money.

Section 57 of the ACL- guarantees relating to the supply of goods by sample or demonstration model

The plaintiff pleads that the Agrison tractor was supplied by way of a demonstration model. It is common ground that Mr Boyd was supplied the tractor by reference to a demonstration model. This is a concept that has a particular meaning under s 57 of the ACL which provides as follows:
(1)If:
(a)a person supplies, in trade or commerce, goods to a consumer by reference to a sample or demonstration model; and
(b)the supply does not occur by way of sale by auction;
there is a guarantee that:
(c)the goods correspond with the sample or demonstration model in quality, state or condition; and
(d)if the goods are supplied by reference to a sample—the consumer will have a reasonable opportunity to compare the goods with the sample; and
(e)the goods are free from any defect that:
(i)would not be apparent on reasonable examination of the sample or demonstration model; and
(ii)would cause the goods not to be of acceptable quality.
(2)If goods are supplied by reference to a sample or demonstration model as well as by description, the guarantees in section 56 and in this section both apply.

This ground will amount to “a major failure” if I am satisfied that the tractor sold to Mr Boyd departed from the demonstration model in one or more respects. Mr Boyd said that the 2012 model tractor Agrison demonstrated to him did not bear the corresponding quality, state or condition of the 2011 model tractor Agrison sold to him. The plaintiff was shown the demonstration model of the tractor at the defendant’s premises. He was directed to it by Agrison. I am satisfied that to the extent reasonably capable of being apparent to Mr Boyd, the demonstration model shown to him gave every indication of being in good condition and certainly bore none of the characteristics complained of and apparent in the tractor sold and delivered to him. Even though Mr Boyd said the demonstration model had some bounce, I accept his evidence that the bounce was not of the same calibre as he experienced with the tractor he purchased. Certainly the struggle he experienced with steering was not present in the demonstration model that he drove around Agrison’s site. I am satisfied that the evidence adduced by Mr Boyd supports a finding that as far as could be reasonably known to him, the demonstration tractor was in good condition and that whilst not exhaustive of all matters:

§   The paintwork on the demonstration model was not peeling or the subject of any suggestion of a re-spray as I am satisfied is the case with the purchased tractor;
§   That steering on the demonstration model not was faulty as I satisfied is the case with the purchased tractor;
§   That oil or hydraulic fluid had not and was not leaking into the cabin of the demonstration model as I am satisfied occurred with the purchased tractor.

One area in which the demonstration model did not differ from the tractor purchased by Mr Boyd was an excess of hydraulic oil overflowing at the rear of the tractor. I was told that this is caused by a consistent policy of overfilling the new imports with hydraulic oil so as they do not run out causing inconvenience to ultimate purchasers.
The defendant submits for the failings to be "major" the departure from the deemed guarantees pursuant to s 57 of the ACL, they need be significant. Alleged defects in quality, state or condition such as an overspray on a headlight, insufficient gas in bonnet struts cannot, the defendant argued, be considered anything but easily repairable minor defects. Given the findings I make elsewhere in these reasons in relation to steering and corrosion and speed capacity, I am satisfied that the tractor sold and delivered to Mr Boyd was not of the quality state or condition as the demonstration model and the departures are significant. Furthermore I am not satisfied that the many matters of complaint made by the plaintiff can be classed as easily repairable minor defects.

Section 260 - attributes and defects

The basis of Mr Boyd’s claim is that the tractor suffers from a series of defects that render it unsafe and unroadworthy. Section 260 of the ACL is expressed in these terms:

When a failure to comply with a guarantee is a major failure
A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
(b)the goods depart in one or more significant respects:
(i)if they were supplied by description—from that description; or
(ii)if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or

(c)the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
(d)the goods are unfit for a disclosed purpose that was made known to:
(i)the supplier of the goods; or
(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e)the goods are not of acceptable quality because they are unsafe.

Section 260 of the ACL is far reaching. In essence it provides that a “major failure” is one where a reasonable consumer would not have acquired the goods had the consumer been fully aware of the failure, the goods are unsafe, substantially unfit for the purpose or departed significantly from the demonstration model or sample.

The plaintiff’s case is that the aforementioned failures comprising the matters detailed in Mr Boyd’s evidence and the findings made by Mr Saylev constitute a major failure for the purposes of s 260 of the ACL. The plaintiff submitted that on a proper construction of s 260 of the ACL, that the use of the conjunction "or" after each of sub-paragraph (a), (b), (c) and (d) has the effect that to amount to a major failure only one of the sub-paragraphs need qualify and that s 260 does not require a consumer to prove each sub-paragraph in order to satisfy the Court that there has been a major failure. I agree with this construction of the provision.
The plaintiff also submits that despite the use of “a”, to suggest the singular, “a major failure" might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure. I also agree with this interpretation of s 260 of the ACL.

The plaintiff submits, and I agree with the submission, that the failure to comply with each of the identified consumer guarantees satisfies each sub-part of s 260 of the ACL including sub-s 260 (c), namely, that “the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose.

Given my findings, it is important that I set out my reasoning and address the matters raised by the defendant.

In responding to Mr Boyd’s claim the defendant relies on a number of matters. In part it submits that because of the passage of time between the purchase of the tractor and the examination of it by Mr Saylev, Mr Boyd’s position hardened and he has adopted a “litany of complaints regarding the tractor that had not found the light of day when he initially notified the defendant of his intention to reject the tractor[2]”. The defendant referred to the concession made by Mr Boyd in cross-examination that the other matters listed in the original Statement of Claim were “incidental”. This concession by Mr Boyd should in my judgement be understood in light of the extent of matters reasonably observable to Mr Boyd at the time and to which his concession was then directed. It cannot in my opinion be said that the plaintiff is unable to take the benefit of recourse and remedies available under the ACL in regard to matters that subsequently come to light that reveal or sufficiently evidence characteristics that individually or collectively meet the description of a “major failure”.
[2] Defendant’s Written Submissions

Mr Boyd gave cogent and persuasive evidence that almost immediately after taking possession of the tractor and becoming aware of issues with it he contacted Agrison but he was not assisted. I am satisfied that at no point in time did the defendant hasten in its efforts to engage the plaintiff with a view to effecting repairs then apparent to the tractor that did not comply in quality, state or condition with the tractor demonstrated to him. Whilst I agree with counsel for the defendant’s submission that poor customer service does not transform something that is not a major failure into one, nonetheless, if the plaintiff’s view of the tractor hardened over time, it ill behoves Agrison to not recognise its part in that result due to its delay in engaging with Mr Boyd.

Rejection under the ACL

Rejection is governed by s 262 of the ACL. It is expressed in the following terms:
262 When consumers are not entitled to reject goods
(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:
(a)the rejection period for the goods has ended; or
(b)the goods have been lost, destroyed or disposed of by the consumer; or
(c)the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or
(d)the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.
(2)The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
(a)the type of goods; and
(b)the use to which a consumer is likely to put them; and
(c)the length of time for which it is reasonable for them to be used; and
(d)the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
263 Consequences of rejecting goods
(1)This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.
(2) The consumer must return the goods to the supplier unless:
(a) the goods have already been returned to, or retrieved by, the supplier; or
(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:
(i)the nature of the failure to comply with the guarantee to which the rejection relates; or
(ii)the size or height, or method of attachment, of the goods.
(3)If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier’s expense.
(4)The supplier must, in accordance with an election made by the consumer:
(a)refund:
(i)any money paid by the consumer for the goods; and
(ii)an amount that is equal to the value of any other consideration provided by the consumer for the goods; or
(b)replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.
(5)The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.
(6)If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

Acceptable Quality Guarantee

A guarantee of "acceptable quality" of a consumer product is provided for by s 54 of the ACL. It is expressed as follows:

Section 54 - Guarantee as to acceptable quality
(1)If:
(a)a person supplies, in trade or commerce, goods to a consumer; and
(b)the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.
(2)Goods are of acceptable quality if they are as:
(a)fit for all the purposes for which goods of that kind are commonly supplied; and
(b)acceptable in appearance and finish; and
(c)free from defects; and
(d)safe; and
(e)durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)The matters for the purposes of subsection (2) are:
(a)the nature of the goods; and
(b)the price of the goods (if relevant); and
(c)any statements made about the goods on any packaging or label on the goods; and
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e)any other relevant circumstances relating to the supply of the goods.

(4)If:
(a)goods supplied to a consumer are not of acceptable quality; and
(b)the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer’s attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.
(5)If:
(a)goods are displayed for sale or hire; and
(b)the goods would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer’s attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6)Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b)they are damaged by abnormal use.

(7)Goods do not fail to be of acceptable quality if:
(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Section 54 should be read bearing in mind s 260 and, in particular, that a "major failure" regarding acceptable quality will be made out "if the goods would not have been acquired by reasonable consumer fully acquainted with the nature and extent of the failure".

Section 54 (2) of the ACL defines "acceptable quality" by reference to the "reasonable consumer" test and five specified criteria set out in sub-sections 54 (2) (a)-(e). These criteria are cumulative, as evidenced by the use of the conjunction "and". Thus, if for example, particular goods are fit for purpose, safe, free from defects and durable, but not acceptable in appearance and finish, the goods will still fail to be of acceptable quality. Section 54 (3) of the ACL identifies the matters relevant for the purposes of sub-section (2).
There was a contest between the parties concerning the point in time at which the determination of whether or not the tractor purchased by Mr Boyd was of acceptable quality arises. This point in time is when the tractor is delivered to the plaintiff: see Medtel Pty Ltd v Courtney (2003) 198 ALR 630. Accordingly, the defendant submits, the issues of original and primary concern to Mr Boyd at the time he purported to reject the tractor comprised readily repairable items and his conduct of waiting and adopting the many further complaints identified by Mr Saylev should not inform this question. There are two difficulties I have in acceding to this submission. The first is that there is no evidence that the defendant made any genuine attempt to communicate an intention to affect repairs even if they were readily repairable. Second, the submission does not take into account that Medtel at [74] is also authority for the principle that the lack of a pertinent failure at the time of purchase does not exclude an ability to subsequently demonstrate a lack of acceptable quality at the time of supply. A determination of what was objectively reasonable for Mr Boyd to expect by way of quality is to be made taking into account all relevant information available at the time of trial. Therefore, I do not accept this submission by the defendant.
The plaintiff submits that on the balance of probabilities the evidence establishes that the tractor does not meet any of the criteria in s 54 (2) (a)-(e) of the ACL, having regard to the matters set out in s 54 (3). The plaintiff further submits that on any view, the tractor is not acceptable quality and that no reasonable consumer fully acquainted with the state and condition of it would regard it as such.

As regards the matters set out in s 54 (3) of the ACL, the plaintiff submits that the court should have regard to the following evidence:
(a)The nature of the goods in question. The tractor is a piece of heavy agricultural use machinery. Mr Banks’ evidence addressed the nature of the goods. He said that "to expect great roadholding and a smoother ride from one of these machines is unrealistic as this is not their intended purpose"[3]. The plaintiff’s counsel submitted that therefore, it is reasonable to presume, that any defect in the steering will have a more negative impact on the control of a tractor than might be the case in another vehicle with better inherent or engineered roadholding. In ay event, Mr Boyd made no complaint that he had disclosed a requirement for a smooth ride or great road holding;
(b)Agrison advertising represent that when it comes to their tractors, it is "quality without compromise";
(c)Agrison gave a 5 year warranty;
(d)The plaintiff’s evidence that in his discussions with Mr McFarland leading up to the purchase, Mr McFarland told him that:
(i) "it will do all you want it to do"; and
(ii) "it will be cool in summer and warm in winter".
[3] Ex D4 Bank’s Report pg 43
The defendant refers to the enquiry I made in the course of the hearing concerning Agrison's motto, "Best Quality and Value without Compromise", which it submitted was in the realm of puffery and not uncommon in retail pamphlets. The defendant submitted that it was more than mere puffery and in support of this, it refers to the decision of the Federal Court in Lowe v Mack Trucks Australia Pty Limited and in particular, Kenny J’s at [51]:

“I agree with Mack’s submission that Mr Kumnick’s statement to the effect that driving the truck was like driving a car was in the nature of commendatory puffery and not a representation of an actionable kind. Whether representations made in the course of negotiations such as those for sale actionable or merely in the nature of puffery depends upon the particular facts, considered "in light of the ordinary incidents and character of commercial behaviour" (citations omitted)”

I am not satisfied that the Agrison motto constituted an actionable representation but if I am wrong in this regard, then in any event, I am not called upon by the matters pleaded by the plaintiff, to determine any allegation that the statement amounted to a representation under the ACL.

The plaintiff otherwise submits that I should be satisfied on the balance of probabilities that the tractor was not of acceptable quality at the time it was supplied to Mr Boyd. In support of this submission the plaintiff contends that I can have regard to the following matters:
(a)The evidence of the plaintiff (including his photographs) of direct observations of the tractor at the time it was supplied to him, and shortly thereafter;
(b)The short period of time between the date of supply of the tractor and Mr Boyd raising complaints with Agrison with regard to it and his subsequent notification of its rejection;
(c)The evidence of minimal use of the tractor by Mr Boyd;
(d)The evidence of Mr Saylev, to the extent he refers to the cause of defects being at the point of manufacture (an example of this being the extent of corrosion).
The concept of “unacceptable quality” provided by s 54 of ACL directs attention to "defects" and other alleged problems within a broader context. The defendant submits that it is insufficient for Mr Boyd to prove the existence of a particular defect and then assert that a reasonable customer fully acquainted with the defect would not have purchased the product without reference being had to the matters set out in s 54 (3) of the ACL. The defendant submits, for instance, that the "nature of goods" dictates that maintenance is a necessary requirement. Agrison made mention in evidence of the provision of maintenance manuals and directions for the provision of servicing at particular intervals. The defendant submits that the nature of some goods is such that they require a purchaser to not only tolerate but to expect that maintenance will be required consistently throughout the life of the use of the machine. The defendant argued that taking into account the "nature of the good" something such as a minor oil leak could not be said to automatically trigger “a major failure" and a right to rejection. I am not persuaded that the question of servicing or lack thereof has any particular probative value in this instance. The tractor was after all in use for such a very limited number of work hours that it could not sensibly be assumed that any of the apparent deficiencies can be attributed to a lack of servicing. I am certainly not satisfied on the balance of probabilities that a lack of attention to servicing is a valid account for the steering issues encountered with the tractor even if it might amount to a probable explanation for an oil leak. In any event the absence of servicing does not satisfy me as amounting to a sufficient response for all the matters identified with the tractor at or soon after delivery.

As outlined at s 54 (3) (b) of the ACL, price may or may not be a relevant consideration when assessing if a consumer product is of an acceptable quality. The defendant uses the example of a watch and pointed out that it is trite that acceptable quality for a high-end Swiss engineered timepiece will not be assessed for "acceptable quality" in the same way that a functional digital-watch is sold by a general department store. Mr White said that an Agrison tractor is different to a John Deere tractor. They are directed to different segments of the market. That Agrison occupies the budget end of the tractor market was a factor of some attraction to Mr Boyd who acknowledged that he was “price sensitive”. He had looked at some higher end tractors whilst touring the Agrison facility, but he said, he was happiest with the price and the specifications of the 50 HP.

In my view, the defendant endeavoured to make more by way of relevance of the comparative value for money of the Agrison tractor than it is reasonable to conclude from the evidence. I am not persuaded that the asserted comparative cheap price of the Agrison tractor dilute the expectations the plaintiff should reasonably have been entitled to attribute to the tractor. The defendant’s written submissions alluded to “insinuations about cheap Chinese imports” as not enough to constitute evidence of a lack of acceptable quality. The defendant submits the tractor is an imported piece of machinery at the lowest end of the budget spectrum and so must inform the Court's assessment of what an acceptable appearance and finish years later will be. The defendant qualified this submission as not intending to suggest that in providing lower-budget machinery, Agrison or any other supplier, has an unfettered right to disregard quality control. However, by the same token, the "reasonable customer" must be cognisant of the price factor when setting their expectations about what the particular product will or will not do. I agree with the defendant’s submission as a general principle but each case is required to be determined on its own peculiar facts and in the context of the application of the consumer provisions of the ACL with an eye to the purpose of the statute. I think on the evidence of Mr Boyd there was a duopoly of considerations that were at work on his decision making process when he purchased the tractor and he was not single minded in his needs. He acknowledges that he had a concern for price but also the characteristics of the tractor informed his choice of purchase. Comparatively inexpensive as the Agrison may be, nonetheless a consumer is entitled to the sale and supply of goods that meet the requirements of the statutory warranties provided for under the ACL.

Section 54 of the ACL is not set in stone at a particular point in time as the defendant’s submission would have it. I am not persuaded by the defendant’s submission that I should confine myself to assessing Mr Boyd’s response to the tractor by limitation to his original expressions of concern which was undue road bounce and steering but otherwise unencumbered by the Saylev report. In any event I am satisfied that Mr Boyd’s concern in relation to steering is of sufficient significance to constitute “a major failure”.

The defendant submits that the effect of bounce described by Mr Boyd is not a sufficient matter to constitute a finding of “a major failure”. The defendant refers to the statements made by Mr Banks in his first report that:

"The tractor is in good general condition and is fully functional with the exception of steering. Aspects of routine maintenance of being neglected such as bolt checks (required by the manufacturers documentation) oil and filter changes, air cleaner maintenance, clutch adjustment.
The hydraulic oil tank vent was the source of the oil at the rear of the tractor. The tractor can be driven at full speed on both Burton pitch and without jumping or bouncing over the road”[4]

[4] Ex D3 pg 9

Mr White submitted that Mr Saylav’s evidence given in relation to bounce was largely in accord with the opinion expressed by Mr Banks. Mr Saylev was unable to identify any undue or disproportionate bouncing. Therefore, the defendant says, of the problems identified by Mr Boyd as representing the reasons upon which his decision to acquire the tractor and subsequently reject it were based, the Court is left only with the steering issue.

If the question was solely dependent for resolution on whether the tractor was not of acceptable quality because of undue road bounce and thus sufficient to render the tractor non –compliant with the applicable consumer guarantee by amounting to “a major failure” and so enliven Mr Boyd’s option to reject, I would find that on the balance of probabilities that the bounce having manifested itself it subsequently receded but on the evidence receded for inexplicable reasons whether it be water ballast added to the tyres or use of the slasher in a particular position. However, whatever the reason be, I am not satisfied that there was such degree of pronounced or excessive bounce that I would regard the tractor as suffering a major failure on account of that matter. However, in regard to the guarantee of acceptable quality, there remain other matters.

The steering evidence

The defendant argues that parts of the first Saylev report which purport to explain the cause and extent of steering problems are manifestly inadequate and adopting Mr White’s language,” basically incomprehensible”. Mr White submitted that the "V-Box" testing data revealed by Mr Saylev did nothing to further the enquiry into the steering issues. The defendant submitted that Mr Banks diagnosis of the cause of the steering fault is to be preferred and that rectification is straightforward. I do not accept this submission.

Mr Saylev is well qualified. The V Box was applied by him for use on the tractor on 28 June 2013. It is calibrated regularly and most recently on 7 May 2013 prior to the test undertaken of the Agrison tractor. The results indicate a very strong bias to the left and Mr Saylev said he could not obtain a speed greater than 33 kph.

I am satisfied that there is more than sufficient evidence to enable me to conclude that the tractor was supplied to Mr Boyd in a state in which the steering was compromised and that this amounted to a very significant defect such as to render the tractor unsafe. It follows in my assessment that the tractor being unsafe that it cannot be regarded as of acceptable quality and therefore does not comply with the applicable consumer guarantee. As to the conclusion I have arrived at that the tractor is unsafe, I am satisfied that the evidence of Mr Saylev and also of Mr Banks on this point permits of such a conclusion. Mr Banks’ evidence stated that the tractor is fully functional with the exception of the steering. That opinion constitutes a sufficient basis to persuade me that the tractor is not fully functional. Mr Banks conceded under cross-examination that he would not be willing to put his mother behind its wheel. In the course of his evidence Mr Banks was apt to furnish answers by reference to analogies and, in some respects, I found this unhelpful. In relation to the extent of corrosion Mr Banks initially said that the level of apparent corrosion could only be caused by the tractor having been left exposed for many years and subsequently revised down this estimate but still on whatever view is taken, the corrosion was more probable than not, incapable of having been caused through neglect or exposure in the time relevant to this case.

Furthermore in his evidence about the expectation of ride and handling Mr Boyd could have anticipated from the tractor Mr Banks stressed that the experience is not one comparable to an expensive German sedan. With due regard to the expertise of Mr Banks, such an observation is trite. Mr Boyd made no complaint of such a type. Whilst I acknowledge that the reasonable consumer in the position of Mr Boyd is not entitled to complain that a piece of agricultural use machinery of comparatively competitive pricing has a less than forgiving ride and handling than by comparison a sedan, this is very different matter from apparent and readily ascertainable steering defects and road handling bias that I am satisfied this Agrison tractor labours from. Furthermore, a tractor that on the evidence given by Mr Saylev and that I accept struggles to reach the specified top speed of its own specifications and once obtained requires significant effort and control to maintain safely, also amounts to a major failure.

Mr Boyd claims that the tractor is not fit for his disclosed purpose because of the defect in steering. I am satisfied that the majority of the evidence is all in his favour in this regard. Although they disagree as to the cause, the experts both agree that there is something wrong with the steering of the tractor. Mr Saylav's evidence is that during his experience driving the tractor, he was concerned for his safety and that of other road users. He was not challenged on this assessment in cross-examination.

Mr Banks said in evidence in chief that although that the tractor was capable of slashing he was not of the opinion that it was capable of being driven on roads to jobs. The fact that the tractor is to be approached with some degree of reserve as to its capacity to be driven on roads to jobs, goes to the very heart of one of the primary needs expressed by Mr Boyd to Agrison at the time of purchase.

The tractor has a problem with steering. The expert evidence affords of the following possibilities. Mr Saylav’s opinion is that the tractor suffers a steering geometry problem whereas Mr Banks attributes the fault to a defective steering valve. Counsel for the plaintiff submitted that it was open on the evidence that the cause attributed to the steering problem could be both matters identified by the experts. I note in his evidence, Mr Banks could not exclude a steering geometry problem as a cause for the presence of wear on the front tyre treads of the tractor which I regard as a pertinent fact.

Mr Saylev observed the practical effect of the steering problem as expressed in a high degree of steering instability (Ex P11 2.11). Mr Banks characterised his experience of the “wandering” of the tractor as moderate but however requiring “steering input” (ie force) to maintain a straight path.

The defendant’s submissions acknowledge that it is nigh impossible to know whether the steering valve was a failure operative at the point of sale of the tractor to Mr Boyd or whether it arose as a maintenance issue after the use of the tractor. However, Mr Banks said it was easily replaceable. In final written submissions the defendant referred to “an incident of misadventure where the tractor was so violently wrenched by bump in the road that the slasher was bumped onto the bitumen and broke”[5]. The plaintiff submits that to the extent the defendant would have the Court consider that that the steering valve may have been damaged by the plaintiff after he acquired the tractor then the allegation should have been pleaded by the defendant. Section 54(6) of the ACL provides a statutory defence to a claim of unacceptable quality. The defendant has not pleaded the statutory defence. Such a defence affects the legal burden and evidentiary onus applicable: Effem Foods limited v Nichols [2004] NSWCA 332. In any event had it proved necessary for me to determine the question I would not be satisfied on the evidence that the defendant would have discharged the evidentiary burden.
[5] Defendant’s Written Submissions

To the extent that it is not possible to know the point of origin of the steering valve failure, this may in part be due to the fact that Agrison adduced no evidence of the state and condition of the tractor before sale to Mr Boyd. In any event, I am sufficiently satisfied on the balance of probabilities the cause of the steering problem is due to defective steering geometry and that to the extent the tractor also suffers a steering valve defect the evidence of Mr Banks did not exclude the cause identified by Mr Saylev as an operable cause. I am not persuaded that I should disregard the methodology applied in the testing and the application of data results produced by Mr Saylev.

I am satisfied that on the balance of probabilities the tractor is not fit for one of the important disclosed purpose underpinning the purchase made known to Agrison by Mr Boyd which is the capacity to travel on roads between jobs and this is because of the defective steering.

The defendant submits that the ACL recognises that "unacceptable quality" at the point a consumer product is sold may be quite different from the content afforded that expression many months later. Mr White contended that this is reflected in the provisions made for "rejection periods" in the ACL to not only protect suppliers from allegations arising a long time after purchase but also in recognition of the difficulties a decider of fact will have in discerning what may be latent defects as opposed to acquired defects. In attempting to impugn the sufficiency of the plaintiff’s allegation that that the tractor is of unacceptable quality for the purposes of ss 54 and 260 of ACL, the defendant referred to the fact that Mr Saylev inspected the tractor "492 days” after Mr Boyd took delivery. For a significant number of these days, the tractor sat in an open field in Tasmania. The defendant says that as a result, there is considerable difficulty in relying on the Saylev report. The defendant contends that if any vehicle was assessed for "appearance and finish" after such a long time and after having been exposed to environmental pressures, then it is unlikely that the “reasonable consumer" would be interested in acquiring such a vehicle. I don’t think with respect that this submission is helpful because it fails to recognise that it is not to the point whether the reasonable consumer informed of those facts and at that point in time would be interested in purchasing such a tractor. That is not the inquiry the Court is called upon to make. The question to be determined is, whether the tractor has a defect or defects that amount to a major failure. If the passage of time that has passed or the manner in which the tractor was maintained or left exposed to the elements does not allow that conclusion to be drawn, then the plaintiff will not succeed, but it is not an answer to the plaintiff’s claim to contend that a tractor left exposed to the elements would not be an enticing prospect for purchase by the reasonable consumer. Instead one should ask if the reasonable consumer would purchase the tractor being made aware that its presentation including corrosion is of an extent that on the balance of probabilities is not caused by environmental factors or exposure. This seems to me the more pertinent question and one to which the ACL directs attention.

The tractor suffers corrosion. Mr Saylev took measurements that are indicative that the presentation of the tractor was consistent with corrosion of a period in excess of 6 years. It is open on the evidence and I find, that the tractor was suffering corrosion prior to the sale to the plaintiff or was prone to corrosion of an inordinate extent due in all probability to a defective manufacturing process as identified by Mr Saylev[6] . I have been assisted by the fact that of the two experts, it is only Mr Saylev who has taken measurements which he says is evidence of the extent of corrosion. Mr Banks is critical of the measurements taken by Mr. Saylev but the extent of corrosion identified may well be explicable if the tractor was in truth not a new tractor at the time of purchase. I am satisfied that it is more probable than not that the state and condition of tractor is not accountable by reason of neglect or environmental exposure and its structural integrity amounts to “a major failure”. This renders the tractor of unacceptable quality.
[6] Ex P11 [2.50]

I also accept the evidence by Mr Saylev that the bonnet of the tractor exhibits evidence of overspray and that the presence of gaps between headlight covers are inconsistent with the provision of a tractor that is of acceptable quality or, more particularly, of a new tractor. There is nothing by way of evidence before me that should dissuade me from treating these facts as indicators from which such a conclusion can be reasonably drawn.

The defendant argues that I should have regard to other relevant circumstances relating to the supply of the tractor before reaching a conclusion as to whether it was of "acceptable quality". The relevant circumstances that the defendant relies on include that the tractor model sold to Mr Boyd was of standard design rather than custom design and that tractors of the same design are registered for use on Australian roads. The defendant says that this is relevant to the "inherent design" deficiencies alleged by Mr Saylev and who proffers the opinion that such tractors should not continue to be registered in Tasmania or anywhere else in Australia. The defendant described Mr Saylev’s frequent reliance on alleged breaches of Australian Design Rules and Standards in deeming the tractor unsafe and unroadworthy as one of the signal points of difference between him and Mr Banks. Undoubtedly, this is so.

The defendant submits correctly that at least 15 of the defects referred to in the Amended Statement of Claim relate to the applicability of design rules. The defendant says that with the exception of roll-over protection, the evidence of Mr Banks is that the design rules are not mandatory in Tasmania for conditional registration of the tractor and that this is corroborated by the relevant authorities and is contrary to the contention by Mr Saylev. Mr Boyd gave evidence that after reading Mr Saylev's report he concluded that the tractor should not have been registered in Tasmania. It was submitted that if I prefer the view expressed by Mr Banks that the design rules do not apply, at least to the extent that they do not preclude registration, then this militates against a positive reading of Mr Saylav's report at an "application of principles" level. I do not agree with the extent and reach of the defendant’s submission. However, I am satisfied that there is a lack of clarity as regard some of the evidence led by both parties on Australian Standards and the application of design rules to the tractor to the extent that compliance or lack thereof informs the capacity for registration for road use of the tractor in Tasmania. I am not satisfied that the assertion by the plaintiff that a major failure within the meaning of s 260 of the ACL by reason of the non compliance with Australian Standards or Design Rules has been established.

Mr White referred to the concession made by Mr Boyd in cross-examination that many of the "defects" identified in Mr Saylav's report were not known to him at the time he had charge of and made use of the tractor. Agrison seeks to take comfort in the evidence of Mr Boyd that there are matters in the Saylev report that he would have been willing put to one side had the tractor “otherwise performed in speed and handling” as he says he was told it would. I use the phrase "otherwise performed" deliberately because that expression was given meaning in the evidence, deriving its substance from Mr Boyd’s testimony that the tractor was not capable of reaching the speed he was told it could and because of the steering defects he encountered.

I accept that Mr Boyd subsequently expanded and enlarged upon the original complaints he had with the tractor shortly after the point in time it was delivered to him. There is no prohibition on Mr Boyd having assumed and adopted all of the matters of criticism made in the expert report of Mr Saylev. The question is one of fact of whether if I am satisfied of their existence either collectively or individually they meet the statutory test of “a major failure”.

The defendant submits that initially the plaintiff's claim was wholly based on his observations about the tractor which he then communicated to Midland Motors. The defendant submits that Midland Motors was a competitor of Agrison. I place no weight on this assertion and, as far as I can see from the evidence, the presence of Midland Motors is irrelevant. Furthermore, it was not explained in the evidence how it is a competitor and to the extent it is, the effect this should have on the evidence.

Although the defendant acknowledges that Mr Banks has identified that the tractor’s steering requires repair due to an internal leak in the steering valve in order for it to maintain a straight path it is submitted that I should accept the opinion expressed by Mr Banks that this is not a complicated matter to repair and would not amount to a major failure under the ACL. I am satisfied that that is not an appropriate characterisation of the failure and moreover no evidence was adduced by Mr Banks to support his evidence of how the failing would be rectified or the means by which this could be done or indeed what was involved in the process.

The defendant also submits that ss 259 and 260 of the ACL distinguish between "major failures" and non-major failures in a consumer product. “Non-major failure” is not an expression used in the ACL. There is no scale of gradation of failures under the ACL. Mr White submits that although a supplier may be found to have sold a product that is not compliant with the consumer guarantees under Subdivision A of Division 1 of Part 3-2 of the ACL, it does not necessarily follow that the non-compliance constitutes “a major failure". The defendant submits that a non-major failure is one which can be remedied within a reasonable time: s 259 (2). The defendant says that the threshold for a finding of “a major failure" is provided by s 260 of the ACL. The defendant argues that the plaintiff did not assert that his right to reject the tractor was triggered by Agrison failing to remedy non-compliance with the consumer guarantees provided for under s 259 (2) (b) (ii) that is to say, failing to do so within a reasonable time. The defendant submits that the right to reject under that provision might be described as poor customer service follow up when there are non-major failures in a consumer product. The defendant says that it is the failure to follow up and rectify these problems that can give rise to a consumer’s right to reject but because Mr Boyd did not argue a case pursuant to this provision of the ACL, Agrison had no need to contest the merits of Agrison’s perceived shortfall in customer service and follow up in relation to Mr Boyd. This submission misstates the interaction between ss 259 and 260 of the ACL. In any event, the defendant’s lack of a timely response to Mr Boyd’s problems with the tractor is difficult to fathom. In Agrison’s final submissions it claims that Mr Boyd has attempted by a variety of means to "build a case" against Agrison and that in doing so he was the author of a “complete deterioration in the relationship between the parties, so that meaningful efforts to mediate and fully rectify minor issues that ended up being acknowledged by Mr Banks in his report was frustrated from April 2012 onwards”. I reject this submission because it is predicated on an assumption that the numerous matters identified as the faults of the tractor amount to “minor issues". I am not satisfied that many of the items complained of by the plaintiff could be described as minor.

The lack of evidence by the defendant

In the course of the hearing I expressed some disquiet to Mr White about the absence of evidence that informed the date of or place of manufacture of the tractor. In assessing the respective accounts by the plaintiff and the defendant concerning the quality of the tractor, I was struck by a singular lack of evidence from Agrison on matters of some importance. My view about the lack of evidence touching on these aspects has not changed since I reserved my decision. For example, cogent evidence was adduced by Mr Saylev that the level of corrosion evident on the tractor on examination could not be caused to a “new” tractor by reason of exposure to the elements over the period in question. Mr Banks in substance confirmed this opinion. There however the state of the evidence remained. For example, there was no evidence from Agrison of the condition of the tractor at the time it left Agrison. There was nothing put in evidence that might equate to pre-delivery inspection records. In the absence of evidence as to the condition of the tractor at the time it was supplied to Mr Boyd, the Court is left with the evidence of Mr Boyd as to the condition of the tractor when he acquired it. There is no contrary evidence.
Agrison did not lead any evidence of the state of the tractor when it acquired it, or for example, during the period of time that elapsed between the date of its acquisition and the sale to Mr Boyd. The evidence is however that Agrison employed personnel who could have provided such evidence. Of course the need for Agrison to adduce evidence on such matters exists only if it would be relevant and probative of a fact or facts in issue. In my view it is relevant and probative to the facts pleaded by the plaintiff to know of the condition of the tractor when it was sold by Agrison to Mr Boyd especially given the close proximity between the time of its sale and delivery to him and the manifestation of problems associated and connected with it and the subsequent identification of matters such as overspray and corrosion.

I am satisfied that the person best placed to have provided evidence on question of the condition the tractor when it left Agrison, and indeed the existence if at all of any pre-delivery or quality control procedures followed in connection with the tractor, was Mr Gonulla. I was told in evidence that Mr Gonulla was in charge of pre-delivery and service. He did not give evidence. I am not satisfied that the plaintiff provided a satisfactory explanation for the absence of Mr Gonulla. Ms Yokus who gave evidence on behalf of the defendant said that he was unwell but there was other evidence that gives me concern in accepting this explanation as a genuine or a satisfactory explanation for his absence. Such other matters include the following:
(i)The absence of any medical evidence tendered in support of proffered explanation;
(ii)The lack of any update of his condition on the resumption of the adjourned hearing on 5 February 2014;
(iii)The evidence of Mr McFarland given on 5 February 2014 that Mr Gonulla had been at work the previous day.

Evidence that I could reasonably have anticipated to have been provided by Mr Gonulla or some other capable officer or employee with the defendant, might have addressed the question of quality control. During the course of the hearing I made a number of enquiries of Mr White as to the existence of evidence that identified the state and condition of the tractor when Agrison acquired it from the Chinese manufacturer. Ms Yokus said she could not assist the Court. Ms Yokus who was offered up by the defendant as the witness for Agrison appeared to have only a passing familiarity with material in the possession of Agrison especially as it related to the process and reach of the obligations of discovery and she was unable to shed light on when the tractor was acquired by Agrison. I did not find Ms Yokus a satisfactory witness and it was necessary for me to admonish her when I observed her trying vainly to obtain assistance in her evidence from others in the Court while answering questions in cross-examination.

The lack of any contradictory evidence about the tractor’s provenance left open the possibility that the Agrison tractor was older than it had been represented to Mr Boyd. Certainly the evidence of Mr Banks that the corrosion on the tractor could not have formed in the time that it had been left exposed to the elements suggests of such a possibility and one that is neither remote nor fanciful.

Ms Yokus testified that another person from Agrison who knew the condition of the tractor, the manufacturing process and the quality control adopted by the company was her father. He is a manager of Agrison and, according to Ms Yokus, is the person who deals with China, is in charge of quality control and inspects all machines. He was not called by the defendant. I was told by Mr Partos without objection or demur by Mr White that he was present in the courtroom on 5 February 2014 observing the proceedings and the evidence given by his daughter.

I am prepared to draw an adverse inference in accordance with the principles expressed in Jones v Dunkel (1959) 101 CLR 298 that had had such evidence been adduced of the type identified it would not have assisted the defendant. Furthermore, I am satisfied that as a result of the absence of such type of evidence I am able to more readily accept the contentions of Mr Saylev that the tractor suffers defects in manufacturing process at the time of the delivery of the purchase to Mr Boyd[7].

Guarantee of fitness for disclosed purpose-s 55 - speed

[7] See Kuhl v Zurich Financial Services Australia [2011] HCA 11 at [63].

Section 55 of the ACL addresses “disclosed purpose”. It is expressed as follows:
55 Guarantee as to fitness for any disclosed purpose etc.
(1)             If:
(a)a person (the supplier) supplies, in trade or commerce, goods to a consumer; and
(b)the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2)             A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a)the consumer makes known, expressly or by implication, to:
(i)the supplier; or
(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b)the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3)      This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

In substance Mr Boyd claims that Peter McFarland told him the tractor could achieve 35-38 km/h. If I accept Mr Boyd's evidence, the tractor is not fit for a disclosed purpose for which it was acquired. I am not persuaded by the evidence that the tractor is capable of reaching this maximum speed or that it can be easily made to do so. There is no basis to support an argument that Mr Boyd was not entitled to expect that it could. I accept the evidence of Mr Boyd.

The defendant contends that the plaintiff was fully acquainted with the maximum speed of the tractor. It relies on the technical specifications it says were sent to Mr Boyd. Mr McFarland testified. He said that he indicated the top speed to Mr Boyd. The evidence of disclosure by the defendant is contradicted by Mr Boyd and I prefer his account. Furthermore I am not satisfied that Mr Boyd was provided with the specifications by email as alleged or that Mr McFarland made the general statement as to speed that he would have me accept by his evidence.

The defendant says that despite this, it cannot be contradicted that the tractor could only achieve a top speed consistent with the technical specifications and it relied on the evidence of Mr Saylav and his test drive of the tractor to support this argument. The defendant submits that Mr Boyd is not entitled to reject the tractor based on an inability to reach a speed that the tractor is not technically capable of achieving. The defendant’s submission comes down to this: irrespective of the Court preferring the evidence of Mr Boyd, the technical fact of the matter is that the tractor could do no greater speed than it was built to achieve, and therefore, irrespective of any oral statements made to the contrary by Agrison, the tractor cannot be of unacceptable quality because it failed to achieve a greater speed than its manufacturer specifications. Furthermore, the defendant says, that the Court should apply reasonableness to the difference between the speed Mr Boyd said he was told the tractor could reach and its actual capacity. If the variation is of a small or trifling extent, then it would be inequitable to stamp the tractor as of unacceptable quality. After all, the defendant argues, Mr Boyd did not state why or how the absence of the tractor reaching the asserted speed adversely affecting him in his purpose in purchasing the tractor.

I do not accept this submission in the context of an analysis of s 55(2) (a) of the ACL because Mr Boyd disclosed his purpose to Agrison and I am satisfied that he was told that the tractor was capable of obtaining a top speed that it was not technically able to meet and thus it was not fit for a disclosed purpose made known to the defendant by the plaintiff. Putting to one side the dispute between the parties as to what speed Agrison told Mr Boyd the tractor could do, it is common ground on the evidence and on the pleadings that Agrison knew of the purpose for which Mr Boyd required the tractor and this was to drive distances on the roads in Tasmania in order to perform slashing jobs as a contractor. Self evidently speed served a need to give effect to Mr Boyd’s purpose. Mr Boyd testified of travelling great distances and so speed served a purpose that was both disclosed to the defendant and required in any tractor purchased by him. I accept Mr Saylev’s testimony that that he had to fight very strongly to control the tractor and at 33.2 kph he said he was unable to maintain safe driving of the tractor. Thus even on the stated top speed in the range relied on by the defendant I am satisfied the tractor was not compliant.

Guarantee as to supply of goods by description-s 56

Section 56 of the ACL is expressed as follows:

56 Guarantee relating to the supply of goods by description
(1) If:
(a)a person supplies, in trade or commerce, goods by description to a consumer; and
(b)the supply does not occur by way of sale by auction;
there is a guarantee that the goods correspond with the description.

(2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer.
(3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

The Amended Statement of Claim is somewhat inconsistent on the claim of sale by description. Mr Boyd alleges that he was promised or led to believe he would be receiving a 2012 model. However, the defendant points to initial quote sent to Mr Boyd by e-mail, his follow-up tax invoice and his personal warranty registration form that identifies a "2011 model" as being the vehicle he purchased. The particulars to paragraph 5 of the Amended Statement of Claim show that Mr Boyd was always aware he was purchasing a 2011 tractor:

"The Plaintiff was shown a demonstration model of the Tractor at the same meeting held on or around 10 February 2012 as set out in the particulars to paragraph 4. The demonstration model was a 2012 model of the Tractor but the Plaintiff was advised by Peter McFarland that the 2011 model to be purchased by the Plaintiff would operate in the exactly same way as the 2012 model. The Plaintiff test drove the demonstration model and no defects were apparent to the Plaintiff in the demonstration model tested”.

The defendant submits that no evidence was led by the plaintiff as to how the specific description was departed from in a significant way by Agrison, for example by showing some feature that existed in the 2012 model which made it a significantly superior tractor to the 2011 model that Mr Boyd pleaded he always knew he was receiving. I agree with this submission.

The Amended Statement of Claim however also alleges that Mr Boyd agreed to buy a "brand new” Agrison ST448 Tractor. The particulars subjoined to paragraph 5 of the amended pleading is that Mr Boyd was shown a demonstration model in the form of a 2012 model tractor but that the 2011 model that Mr Boyd would be purchasing would operate in precisely the same way as the 2012 model. I have referred to Mrs Boyd’s evidence that she and her husband were told they would be purchasing a 2012 model at the 2011 price due to the lack of stock availability of the 2011 model. The receipt however is for the purchase of a 2011 model tractor. The pleading does not allege that the tractor was not “brand new” or that it was not brand new in consequence of Mr Boyd taking delivery of a 2011 as opposed to a 2012 model tractor. However, in final submissions when I asked Mr Partos if the allegation was persisted with that the tractor was not brand new, he said that it was. Mr Partos submitted that the Court can be satisfied on the balance of probabilities that the tractor fails to comply with the description of being “brand new”., Mr Partos submitted that I can and I should have regard to all the defects and observations made by Mr Boyd of the general condition of the tractor when it was acquired and the absence of evidence from Agrison identifying the date of manufacture or even the date that it obtained the tractor for sale let alone its condition when acquired. Without being exhaustive, the tractor exhibited strong indications that it was not a new piece of machinery. There were signs that it had been re-sprayed suggested by evidence of overspray, the presence of paint and gaps at the headlight covers, the gas struts were inoperative and needed to be re-gassed, the steering was faulty, it suffered from hydraulic oil leaks and of course there is the evidence of corrosion incompatible with the time during which the tractor was exposed to the elements. Collectively these matters give rise to a sufficient probative basis to call into question whether Mr Boyd got what he bargained for irrespective of the controversy of whether the tractor was a 2011 or 2012 model. As mentioned the defendant adduced no evidence to the contrary. I am satisfied that the plaintiff has established on the balance of probabilities this allegation.

The alleged failure to comply with the guarantee as to fitness for purpose

The defendant says that the case pleaded by the plaintiff is that his reason for purchase of the Agrison tractor was twofold: that the tractor would be suitable for slashing work and that it would be driveable at great speed. The defendant says that Mr Boyd gave evidence of the one job he actually used the tractor on 6 March 2012. On the way to the job the tubular tyre perished which the defendant says and I accept could just as easily have been misadventure as opposed to some latent defect. The plaintiff undertook some 4 hours of work which went well and the only complaint at that occasion was an oil leak, the defendant arguing that this was a repairable maintenance issue and not “a major failure" a matter with which I also agree.

The defendant says that the complaints which followed on this job and are reflected in Mr Boyd's diary concern balance, skip and road speed. The defendant submits that because of Mr Boyd’s purported rejection a fortnight later, attributable to bounce, skipping and speed issues, the plaintiff did not attempt to use the tractor again for slashing work even after mechanical repairs had been rendered to the tractor on behalf of Agrison on 5 May 2012. Three days after the mechanic had attended on the tractor Mr Boyd enters in his diary, "tractor not driveable on-road wanders dangerous-unsafe to all. Will put down at Angus’s out of road”. The defendant submits that based on the sequence of events there is no evidence to determine whether or not the tractor had been rendered suitable for slashing work. According to the defendant, this is because Mr Boyd's preoccupation with bounce and wandering led him to prematurely abandon the tractor to the fields of a neighbouring property. I do not think Mr Boyd can be criticised that having formed the opinion he did on 5 May he should be regarded as delinquent in not pressing on to determine if the tractor could still give effect to slashing work.

I have determined that the tractor suffers a major failure due to a steering defect and I am not satisfied by the evidence adduced by the defendant that I can exclude a steering geometry defect identified by Mr Saylev as either the cause or a cause that has contributed to this defect. I am also satisfied that the tractor is incapable of obtaining speed that Mr Boyd was told the tractor could reach in response to a disclosed purpose known to Agrison and moreover that the tractor on the balance of probabilities was suffering rust occasioned by corrosion of an extent that is counter indicative to the tractor being a new tractor and that these matters either individually or collectively amount to a major failure within the meaning of the ACL.

I have given consideration to whether or not in light of my principal findings, it is necessary that I make specific findings in regard to each of the claimed defects complained of by Mr Boyd in the Amended Statement of Claim. I do not believe that it is necessary for me to do so however if I am wrong in this conclusion then I am satisfied that otherwise than with respect to those matters complained of and said to constitute a major failure by reason of non-compliance with Australian Standards and Design Rules, the failings are so extensive and so prevalent across the tractor as to themselves taken together to amount to a major failure.

The tractor is unroadworthy

Mr Boyd claims in the Amended Statement of Claim that that the tractor is unroadworthy. Regulation 4(1) (b) of the Vehicle and Traffic (Vehicle Standards) Regulations 2001 preclude the use by a person of a vehicle on a public street unless the vehicle is in a “safe and roadworthy condition”. I am satisfied that the tractor is not in a safe and roadworthy condition.

Section 262 – A negative imposition - When consumers are not entitled to reject goods

I have already addressed in a different context the defendant’s submission that there was a peremptory rejection of the tractor by the plaintiff. A consumer is not entitled, under s 262 (1) of the ACL to notify a supplier of goods that the consumer rejects the goods if relevantly:
(a) the rejection periods of the goods has ended; or
(b) …
(c) the goods were damaged after being delivered to the consumer for reasons not related to this state or condition at the time of supply;
or
(d) …
Sub-section 262(2) of the ACL goes on to define the rejection periods for goods as the period from the time of the supply of goods to the consumer within which it would be reasonable to expect the relevant failure to comply with the guarantee referred to in s 259 (1) (b) of the ACL, to become apparent having regard to:
(a) the type of goods; and
(b) the use to which a consumer is likely to put them; and
(c) the length of time for which it is reasonable for them to be used; and
(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
Mr White submits that it is relevant in undertaking an assessment of the reasonableness of the rejection period that a difficulty was created for the defendant because of a “fundamental weakness in the Saylev report and the author’s observations being remote in time from the delivery date of the tractor to Mr Boyd”. I have already rejected the submissions made by the defendant that the period of time in this case amounted to a relevant or operative prejudice.

The ACL provides remedies that are applicable where there is a failure to comply with a statutory consumer guarantee. If the failure to comply with the guarantee cannot be remedied or is “a major failure”, then the consumer has the right to either recover compensation for any reduction of value, or to reject the goods: s 259 (3) of the ACL.

The plaintiff says that he gave valid notice of rejection by letter dated 26 March 2012 in which he requested a full refund of the purchase price of the tractor. Further Mr Boyd said that he gave oral notice of rejection through personnel from the Small Business Commissioner and Consumer Affairs whom he had engaged in connection with the dispute and finally by way of a written notice comprising an email dated 11 April 2012. Agrison’s defence does not specifically traverse the alleged April 2012 rejection and I was invited by Mr Partos to find that the rejection should be taken as admitted pursuant to the Rule13.02 (2). I don’t think it is necessary for me to determine the fine matter of the extent to which the amended notice of defence traversed the specific allegation because I am otherwise satisfied by the evidence that Mr Boyd more than once notified Agrison that he had rejected the tractor. The question is whether the rejection was valid because, as the defendant would have it, the rejection of the tractor came too late or, on one view of matters, too early, in that as at April 2012 as the defendant would have it, the matters that were apparent in the tractor were capable of ready rectification. However, I have made findings of major failures as regards steering and a finding that the tractor did not meet the description of brand new then the question of the time or times of asserted rejection raised as a matter of some controversy by the defendant, falls away. They were prevalent and in existence as at April 2012.

Consequences of rejection

Section 263 of the ACL sets out the consequences that flow from a valid rejection. The supplier must refund any money paid by the consumer for the goods in an amount equal to any other consideration provided by the consumer goods: s 263 (4) (a).

Section 263 (2) of the ACL provides that the consumer must return the goods to the supplier unless the goods have already been returned or retrieved by the supplier or the goods cannot be returned, removed or transported without significant cost to the consumer because of the nature of the failure to comply with a guarantee to which the rejection relates, or the size or height or method of attachment of the goods.

My Boyd claims at paragraph 23 of his Amended Statement of Claim that he cannot return the tractor without incurring significant cost because of the nature of the failure to comply with a guarantee to which the rejection relates or the size or height of the tractor. Mr Partos also submitted that Agrison's defence did not traverse this allegation and therefore should be treated as admitted: (Rule 13.02 (2)). The truth of the matter is that in final oral submissions, Mr White did not take issue with the plaintiff’s contention on this aspect of the case other than faintly, in the event as has proved to be the case, that the plaintiff is successful.

However the defendant did contend in written submissions for the first time that on the basis of the right under s 261(b) of the ACL, Agrison as a supplier be permitted to rectify non-major failures, and that an order issue that the defendant repair, and bear the costs of repair of curing the defects in the tractor. I have found that the tractor suffers a major failure. I am not therefore satisfied that in such a case the supplier may exercise this right.

Damages claim

Section 259 (4) of the ACL also entitles a consumer to recover damages suffered because of the failure to comply with the guarantee. Mr Boyd claimed that had suffered loss and damage by reason of the failure to comply with the consumer guarantees in respect of a loss of earnings however this was abandoned by Mr Boyd’s counsel in the course of the opening of his case. The plaintiff does, however, claim by way of damages the cost of shipping the tractor and the cost of three invoices tendered in the course of the hearing and comprising (Exhibit P 8).

I find that the tractor was of unacceptable quality at the time of its supply to the plaintiff. I make this finding because I am satisfied that a reasonable consumer in the position of Mr Boyd having disclosed to the defendant the requirements he had for such a purchase would not have purchased the Agrison tractor knowing what was apparent almost immediately upon its delivery to Mr Boyd and that subsequently came to light by reference to the many matters identified by Mr Saylev.

The Court declares that:

1.the plaintiff made a valid rejection of the tractor within the meaning of the ACL;

2.the plaintiff is entitled to a refund by the defendant of the purchase price of the tractor in the sum of $28,360.00;

3.the tractor is incapable of being returned by the plaintiff to the defendant without significant cost to the plaintiff due to the size of the tractor;

Further, the Court orders that:

1.the defendant pay to the plaintiff the amount of $28,360.00

2.the defendant pay to the plaintiff the amount of $1,396.00 being the costs of shipping the tractor to the defendant in Victoria and the costs of repairs as evidenced in Exhibit P8

3.Interest be applied to the sums identified in paragraphs 1 and 2 pursuant to s 58(1) of the Supreme Court Act 1986 and s 2 of the Penalty Interest Rates Act 1983 to date of judgment

4.The defendant pay the plaintiff’s costs

5.Liberty to apply is reserved to the parties