Fullerton, Edward Colin James v Allstates Leasing System (NSW) Pty Ltd

[1984] FCA 210

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IN THE FEDERAL COURT OF AUSTRALIA	1
GENERAL DIVISION	)
BANKRUPTCY DISTRICT 'OF THE	) No. P 881 of 1983

STATE OF N E M T O U T H WALES AND OF )

THE AUSTRALIAN CAPITAL TERRITORY	)
Re: EDWARD COLIN JAMES FVLLERTON

M PARTE: ALLSTATES LEASING SYSTEM (N.s.w. ) PTY. LIMITED

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ORDERS

m:	ST. JOHN, J.
D=:	28 JUNE 1984
M:	SYDNEY

1. Sequestration order made.

2.

Order pursuant to S. 52(1A)(b) of the Bankruptcv Act

1966 that the Official Receiver administer the estate

of the bankrupt.

3 . Order the debtor pay the costs of the petitioner including the reserved costs.

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amount in respect of which the petition was issued. He bases

his counter-claim - o n 5.71(2) of the Trade Practices Act 1974

which provide2 that there is an implied condition that goods

supplied otherwise than by way of sale, and that of course

would include lease. Those goods are reasonably fit for the

purpose for which they are supplied where the buyer, or in

this case the l a s e , either expressly or by implication makes

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known to	the	13c50K	..	the purpose for which they are being
acquired.

That implied condition is subject to an exception

where the circumstances show that the consumer does not rely

or that it is unreasonable for him to rely on the skill	or
judgment of, in this case, the lessor.

The debtor, Mr. Fullerton, has given evidence firstly

that he is a very good mechanic, that he had some knowledge of

this vehicle before he actually inspected It for the purpose

of entering into the lease or deciding whether to enter into

the lease, and that when he did inspect it to decide whether

or not to take it on lease he had the assistance of Mr.

Thompson who was a qualified diesel engineer and who

apparently presently is a lecturer in diesel engineering at

some tertiary education centre.

On inspection Mr. Fullerton. and perhaps Mr. Thompson

also, found a number of defects and later, after takinq outthe

lease, found a number more and it appears to me firstly that

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I find the-ground in the petition made out. I find

also the othe? facts which it is necessary to find pursuant to

S.52 of the Bankruptcy Act 1966 and I make a sequestration

order and I appoint the Official Receiver to administer the

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estate of the bankrupt and I order that the debtor pay the

costs of the p e w o n including reserved costs.

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I certify that this and the three ( 3 )

preceding pages are a true copy of the

Reasons for Judgment herein of his

Honour Mr. Justice St. John.

Associate:

"1".

Date : 27 JULY 1984