JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	10-12, 15-16, 18 APRIL 2013
DATE OF JUDGMENT:	16 MAY 2013
CASE MAY BE CITED AS:	HOGAN v BPW TRANSPEC
MEDIUM NEUTRAL CITATION:	[2013] VSC 249

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CONTRACT – supply and installation of crane and tray top – failure of crane to perform to specifications – crane defects rectified by defendant – tray top short in length – whether any loss claimed was suffered – expert evidence – failure to establish loss claimed – failure to mitigate loss – Goods Act 1958 (Vic) ss 19, 61 – whether implied terms negatived by contract – interpretation of exclusion clauses.

TORT – negligence – negligent misstatement – whether claims negatived by contract.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J. Ribbands	Defteros Lawyers
For the Defendant	R.G. Craig	Clayton Utz

TABLE OF CONTENTS

A. Introduction................................................................................................................................... 1

B. Background................................................................................................................................... 2

C. The pleaded case.......................................................................................................................... 4

D. The Contract.................................................................................................................................. 9

D.1 Written terms......................................................................................................................... 9
D.2 Oral terms............................................................................................................................. 13

E. The alleged Abigroup agreement............................................................................................ 17

E.1 Oral evidence of the alleged agreement.......................................................................... 17
E.2 Letter from Abigroup to Juliana dated 19 June 2009..................................................... 21

F. Problems with the Crane and Tray Top................................................................................. 25

G.. Work by West Trans and the state of the DAF Truck and Crane immediately thereafter..... 27

H. Expert evidence on the DAF Truck and the Crane.............................................................. 29

I. The DAF Truck and the Crane: work performed and problems encountered................ 31

J. The Tray Top................................................................................................................................ 38

K. The Big ACCO............................................................................................................................. 39

L. Loss claimed................................................................................................................................. 40

L.1 Reasons why no loss........................................................................................................... 40
L.2 Contractual issues: exclusion and limitation clauses.................................................... 42

M. The issues................................................................................................................................... 45

M.1 Alleged agreement with Abigroup................................................................................. 46
M.2 Instructions from Hogan to Caligiuri in relation to the Crane.................................... 46
M.3 The First Failure................................................................................................................. 46
M.4 The Second Failure............................................................................................................. 47
M.5 Was the Crane fit for the Intended Purpose?................................................................. 47
M.6 Was the Abigroup Agreement withdrawn?................................................................... 47
M.7 Loss....................................................................................................................................... 47

N. Other alleged defects particularised by Hogan.................................................................... 47

O. Demeanour of Hogan................................................................................................................ 48

P. Other matters............................................................................................................................... 49

Q. Conclusion.................................................................................................................................. 49

HIS HONOUR:

A. Introduction

This case concerns the supply and installation of a crane manufactured by HMF, model number 2003-K3 D (“the Crane”). It also concerns the supply and installation of a tray top (“the Tray Top”). Both the Crane and the Tray Top were installed on a new truck, namely a DAF 2008 FAD CF85 truck (“the DAF Truck”).

Problems were experienced with the DAF Truck and the Crane. There were also issues with the Tray Top. Claims have been made by reason of these events. For the reasons that follow, those claims cannot succeed.

The plaintiff, Mervyn Hogan (“Hogan”), has worked in the crane operations industry for many years. At the time he gave his evidence he was 69 years of age. Since its incorporation in around 1999,…

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.

Continue reading Hogan v BPW Transpec

Details

AGLC: Hogan v BPW Transpec [2013] VSC 249
Case: [2013] VSC 249
Decision Date: 16 MAY 2013

CaseChat Overview and Summary

The matter of Hogan v BPW Transpec involved the plaintiff, Hogan, bringing an action against the defendant, BPW Transpec, for issues relating to the supply and installation of a crane and tray top. The dispute centred around the performance of the crane and the adequacy of the tray top, with Hogan asserting that the crane did not meet the specifications and that the tray top was too short. The case was heard in the County Court of Victoria. The plaintiff sought damages for the alleged breach of contract and for negligent misstatement.

The primary legal issues that the court was required to address included whether the plaintiff had suffered any loss as a result of the defects in the crane and tray top, and if so, whether the plaintiff had mitigated that loss. Additionally, the court had to consider whether the implied terms under the Goods Act 1958 (Vic) had been negated by the contract, and the interpretation of the exclusion clauses within the contract. Furthermore, the court needed to determine if the defendant's conduct constituted a negligent misstatement that was not negated by the contract.

The court found that the plaintiff failed to establish the loss claimed due to the defects. The evidence presented did not substantiate the extent of the loss or the impact on the plaintiff's business. Moreover, the court held that the plaintiff did not adequately mitigate the loss. As for the implied terms under the Goods Act 1958 (Vic), the court determined that these terms had not been negated by the contract. The interpretation of the exclusion clauses was also examined, with the court concluding that these clauses did not absolve the defendant of liability for the negligent misstatement. Ultimately, the court dismissed the plaintiff's claims, finding in favour of the defendant. The court did not order any costs to be paid by the plaintiff to the defendant.

Orders