Fulcher v Knott Investments Pty Ltd - [2012] QSC 232

SUPREME COURT OF QUEENSLAND

CITATION:

Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232

PARTIES:

RAYMOND FULCHER AND KERYN EILEEN FULCHER (A PARTNERSHIP TRADING UNDER THE FIRM STYLE OR NAME OF RAYMOND FULCHER AND KERYN EILEEN FULCHER)
(first plaintiffs)
and
R & KE FULCHER PTY LTD (ACN 011 059 644)
(Second plaintiff)

v

KNOTT INVESTMENTS PTY LTD (ACN 000 596 798)
(First defendant)
and
AROUND AUSTRALIA MOTOR HOMES PTY LTD (ACN 096 161 161) TRADING AS BRISBANE MOTOR CAMPER CENTRE
(Second defendant)
and
COAST RV PTY LTD (ACN 101 461 330) TRADING AS COAST TO COAST RV SERVICES
(Third defendant)

FILE NO:

325 of 2004

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

22 June 2012 and 28 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13, 14, 15, 16, 17, 20, 21, 22, 23, 28, 29 February 2012

JUDGE:

Peter Lyons J

ORDER:

[1] Order is as per appendix

CATCHWORDS:

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS - OTHER MATTERS - where second plaintiff entered contract of sale with second defendant for the purchase of a Winnebago - where a fire occurred in the shed in which the Winnebago was parked - whether purpose of Winnebago for use as a motor home was made known to second defendant such that a condition that the Winnebago be reasonably fit for the purpose was implied in the contract of sale - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not reasonably fit for the purpose of use as a motor home - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not of merchantable quality

TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - GENERAL MATTERS - where second plaintiff entered contract of sale with second defendant for the purchase of a Winnebago - where the first defendant manufactured the Winnebago purchased by the second plaintiff - where the third defendant imported the air conditioning unit that was installed in the Winnebago purchased by the second plaintiff - where a fire occurred in the shed in which the Winnebago was parked - whether seller of Winnebago was negligent - whether manufacturer of Winnebago was negligent - whether the importer of the air conditioning unit was negligent

TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - LIABILITY OF MANUFACTURERS OR IMPORTERS FOR DEFECTIVE GOODS - where the first defendant manufactured the Winnebago purchased by the second plaintiff - where a fire occurred in the shed in which the Winnebago was parked - whether purpose of Winnebago for use as a motor home was made known to the first defendant - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not reasonably fit for the purpose of use as a motor home…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] QSC 232
Decision Date: 22 June 2012 and 28 August 2012

CaseChat Overview and Summary

The case of Fulcher v Knott Investments Pty Ltd was heard in the Queensland District Court, involving a dispute between the plaintiffs, Mr and Mrs Fulcher, and the defendants, Knott Investments Pty Ltd (the seller), Freedom RV Manufacturing Pty Ltd (the manufacturer), and the importer of an air conditioning unit installed in the Winnebago. The plaintiffs purchased a Winnebago from the seller, which was manufactured by the first defendant and had an air conditioning unit imported by the third defendant. A fire occurred in the shed where the Winnebago was parked, leading to significant damage and destruction of the shed and other goods. The plaintiffs sought damages for breach of implied warranties, negligence, and defective goods under consumer protection and competition legislation.

The court was required to determine several key legal issues, including whether the purpose of the Winnebago for use as a motor home was made known to the seller and manufacturer, and whether the Winnebago was reasonably fit for that purpose and of merchantable quality. Additionally, the court had to consider whether the seller, manufacturer, or importer was negligent in the sale or production of the Winnebago and air conditioning unit. The court also needed to assess whether the plaintiffs' claim for damages was within the statutory limitation periods under the Trade Practices Act 1974 (Cth) and whether the plaintiffs had mitigated their damages.

The court found that the purpose of the Winnebago for use as a motor home was not made known to the seller or manufacturer, and the Winnebago was not reasonably fit for that purpose or of merchantable quality due to an electrical fault. However, the court determined that the fire was not caused by a defect in the air conditioning unit. The seller was found to be negligent for failing to ensure the Winnebago was fit for the purpose and of merchantable quality. The manufacturer was also held liable for breach of implied warranties and negligence due to the design and manufacturing defects. The importer of the air conditioning unit was found not liable for any defects in the unit. The plaintiffs' claim for damages was deemed to be within the statutory limitation periods, and the plaintiffs had not unreasonably delayed in prosecuting their claim. The court awarded damages to the plaintiffs for the loss of the shed, other destroyed goods, and loss of profits from their tomato-growing business, with interest calculated appropriately.

The court ordered that the seller and manufacturer were liable for the damages awarded, and the plaintiffs were entitled to recover the full amount of damages, costs, and interest as per the appendix to the judgment.

Orders

Orders of the court

[1] Order is as per appendix

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232
PARTIES:	RAYMOND FULCHER AND KERYN EILEEN FULCHER (A PARTNERSHIP TRADING UNDER THE FIRM STYLE OR NAME OF RAYMOND FULCHER AND KERYN EILEEN FULCHER) (first plaintiffs) and R & KE FULCHER PTY LTD (ACN 011 059 644) (Second plaintiff) v KNOTT INVESTMENTS PTY LTD (ACN 000 596 798) (First defendant) and AROUND AUSTRALIA MOTOR HOMES PTY LTD (ACN 096 161 161) TRADING AS BRISBANE MOTOR CAMPER CENTRE (Second defendant) and COAST RV PTY LTD (ACN 101 461 330) TRADING AS COAST TO COAST RV SERVICES (Third defendant)
FILE NO:	325 of 2004
DIVISION:	Trial Division
PROCEEDING:	Claim
DELIVERED ON:	22 June 2012 and 28 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13, 14, 15, 16, 17, 20, 21, 22, 23, 28, 29 February 2012
JUDGE:	Peter Lyons J
ORDER:	[1] Order is as per appendix
CATCHWORDS:	TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS - OTHER MATTERS - where second plaintiff entered contract of sale with second defendant for the purchase of a Winnebago - where a fire occurred in the shed in which the Winnebago was parked - whether purpose of Winnebago for use as a motor home was made known to second defendant such that a condition that the Winnebago be reasonably fit for the purpose was implied in the contract of sale - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not reasonably fit for the purpose of use as a motor home - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not of merchantable quality TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - GENERAL MATTERS - where second plaintiff entered contract of sale with second defendant for the purchase of a Winnebago - where the first defendant manufactured the Winnebago purchased by the second plaintiff - where the third defendant imported the air conditioning unit that was installed in the Winnebago purchased by the second plaintiff - where a fire occurred in the shed in which the Winnebago was parked - whether seller of Winnebago was negligent - whether manufacturer of Winnebago was negligent - whether the importer of the air conditioning unit was negligent TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - LIABILITY OF MANUFACTURERS OR IMPORTERS FOR DEFECTIVE GOODS - where the first defendant manufactured the Winnebago purchased by the second plaintiff - where a fire occurred in the shed in which the Winnebago was parked - whether purpose of Winnebago for use as a motor home was made known to the first defendant - whether there was an electrical fault in the Winnebago which caused the fire such that the Winnebago was not reasonably fit for the purpose of use as a motor home…