Gooch, E.C. v Byrt Ford Pty Ltd

Re: EDMUND CHARLES GOOCH AND LORRAINE KERRY GOOCH
And: BYRT FORD PTY LIMITED
No. ACT G34 of 1988
FED No. 85
Contract - Damages - Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Kelly(2) and Neaves(2) JJ.

CATCHWORDS

Contract - Oral warranty - New motor vehicle - Written warranties given by vehicle assembler and engine manufacturer - Whether additional oral warranty given by dealer - Whether additional warranty covered economic loss.

Damages - Assessment - Warranty by motor vehicle dealer that vehicle reliable and suitable for particular work - Vehicle acquired by finance company and leased to users - Vehicle defective and off road for substantial periods - Eventual failure of rear suspension resulting in extensive damage and personal injuries - Measure of damages considered.

Practice and Procedure - Interest on damages - Action for breach of warranty not commenced until some years after cause of action arose - Whether circumstance that no entitlement to interest if proceedings instituted promptly after cause of action arose relevant in considering amount of interest to be awarded.

Australian Capital Territory Supreme Court Act 1933 (Cth), s.53A

HEARING

CANBERRA

#DATE 13:3:1989

Counsel for the appellants : Mr T.J. Higgins, Q.C.

and Mr P.L.R. Dodson

Solicitors for the appellants: Porter Pilkington

Counsel for the respondent: Mr I.A. Curlewis

Solicitors for the respondent: Snedden Hall & Gallop

ORDER

The appeal be allowed.

The judgment of the Supreme Court of the Australian Capital Territory given on 15 July 1988 be varied by substituting for the order that judgment be entered for the plaintiffs against the firstnamed defendant in the sum of $29,116.70 an order that judgment be entered for the plaintiffs against the firstnamed defendant in the sum of $65,227.65 and for the sum of $29,116.70 appearing secondly the sum of $65,227.65.

The respondent pay the appellants' costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The principal issue in this appeal is whether oral representations made by Mr P. Donohue, an employee of the respondent ("Byrt Ford") to the firstnamed appellant, Edmund Charles Gooch, with respect to the capability of a Ford "Louisville" 8000 tipper truck, constituted a warranty given by the respondent as to that capability.

1. The Louisville truck which Byrt Ford had for sale was a new truck. It failed to stand up to the work to which Mr Gooch put it. The engine was replaced three times, the differential housing was replaced twice, the clutch was replaced twice, the water pump was replaced, the shock absorbers were replaced more than once, repairs were required to the injector pump, the fly wheel, the pressure plate, the air compressor, the starter motor, the kingpins, the tipping body and hoist and to instrument gauges. Finally, the rear walking beam, a structural part of the rear suspension assembly, fractured causing the vehicle to overturn.

2. At the trial, a case was put on behalf of…