J & V Pesl v Ray Smith Tractors & Anor

The appeal concerned a claim brought by J & V Pesl (the appellants) against Ray Smith Tractors and another (the respondents) for negligence and misleading or deceptive conduct. The appellants alleged that the respondents, who had sold them a tractor, failed to pass on an updated safety warning from the manufacturer. The tractor had been purchased some years prior, and the appellants contended that this failure led to damage. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the respondents owed a duty of care to the appellants in relation to the updated safety warning, and if so, whether they had breached that duty. Additionally, the court had to consider whether the respondents' conduct in selling the tractor, and their subsequent actions or omissions regarding the safety warning, constituted misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth). A key aspect of the negligence claim involved determining whether the passage of time and the age of the machinery, which had exceeded its normal useful life, affected the respondents' duty of care or the foreseeability of damage.

The Court of Appeal found that the respondents did not owe a duty of care to the appellants in relation to the updated safety warning. The court reasoned that the respondents had supplied the tractor in a condition that was safe at the time of sale, and that the passage of time and the tractor's age meant that the risk of damage arising from the failure to pass on the later warning was not reasonably foreseeable. Furthermore, the court held that the respondents had not engaged in misleading or deceptive conduct under section 52 of the *Trade Practices Act 1974* because any representations made at the time of sale were factually true, even if subsequent developments rendered them less accurate.

The appeal was dismissed with costs. The respondents' cross-appeal was also dismissed, with no order as to costs.