Kennerson v Barry - [1992] TASSC 68

Serial No 10/1992
List “A”

CITATION: Kennerson v Barry [1992] TASSC 68; A10/1992

PARTIES:  KENNERSON, Gregory Leonard
  KENNERSON, Helen Elizabeth
  v
  BARRY, Peter Lawler

COURT: SUPREME COURT OF TASMANIA

FILE NO/S:  1047/1987
DELIVERED ON:  18 March 1992
JUDGMENT OF:  Zeeman J

Judgment Number: A10/1992
Number of paragraphs: 47

Serial No. 10/1992

List "A"

File No 1047/1987

GREGORY LEONARD KENNERSON and HELEN ELIZABETH KENNERSON v PETER LAWLER BARRY

REASONS FOR JUDGMENT ZEEMAN J

18 March 1992

Contract – Termination pursuant to express right conferred by contract – Mode of termination.
Sale of goods – Implied conditions – Correspondence with description – Fitness for particular purpose – Merchantable quality – Exclusion of implied conditions by inconsistent express term.

This action arises out of the purchase by the plaintiffs from the defendant of a stallion known as "Cusop Safeguard" in February 1986. The stallion is a Welsh pony Section B. The defendant conducts the Mirinda Stud at Narre Warren in Victoria. The plaintiffs conduct a pony stud at Cygnet. At the time that they purchased "Cusop Safeguard" the plaintiffs were in the process of setting up their stud business, intending to breed Welsh ponies Section B. With a view to obtaining appropriate breeding stock, the second plaintiff, accompanied by two women friends, made a trip to Victoria where they visited a number of studs, including the Mirinda Stud. The second plaintiff's intention was to endeavour to purchase brood mares and a stallion suitable for breeding purposes. The plaintiff and her friends visited the Mirinda Stud on two occasions during the course of their travels in Victoria. On those occasions she spoke to the defendant and observed "Cusop Safeguard". Some discussions and negotiations as to the possible purchase by the plaintiffs of this stallion occurred on the occasion of the second of those visits, but no final agreement was reached. Upon her return to Tasmania, the second plaintiff discussed the possible purchase of the stallion with her husband, the first plaintiff, subsequent to which it was agreed between the parties that the plaintiffs would purchase "Cusop Safeguard" for the sum of $3,500.00. In due course the plaintiffs paid the purchase price and took delivery of the stallion. The plaintiffs found "Cusop Safeguard" to be quite unsuitable for breeding purposes. The stallion showed little interest in covering mares, and, when he did so, generally did not ejaculate. Whilst at the plaintiffs' stud he managed to sire one foal only. It is agreed between the parties that, at least after delivery, "Cusop Safeguard" was unsuitable for stud breeding purposes, but that he was not sterile.

The substantive relief claimed by the plaintiffs by their Statement of Claim as finally amended is as follows:

(a)       a declaration that the plaintiffs validly determined the contract;
(b)       repayment of the purchase price;
(c)       damages for negligent misrepresentation;
(d)       damages for breach of contract.

Whilst the Statement of Claim also contains a claim for damages for fraudulent misrepresentation that claim was abandoned during final addresses. No basis for such a…

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: [1992] TASSC 68
Decision Date: 18 March 1992

CaseChat Overview and Summary

The plaintiffs, Gregory Leonard Kennerson and Helen Elizabeth Kennerson, brought an action against the defendant, Peter Lawler Barry, seeking a declaration that they validly determined a contract for the sale of a stallion, "Cusop Safeguard", a refund of the purchase price, damages for negligent misrepresentation, and damages for breach of contract. The contract was for the sale of a stallion suitable for breeding purposes. The parties' dispute centered on the suitability of the stallion for stud purposes and whether the defendant breached the contract by selling an unsuitable stallion. The Supreme Court of Tasmania was required to determine whether the plaintiffs validly terminated the contract, whether the defendant breached any terms of the contract, and whether the plaintiffs were entitled to any damages. The court held that the plaintiffs did not validly terminate the contract as they did not elect to terminate it when they had the right to do so. The court found that the plaintiffs' conduct was inconsistent with their claim that they terminated the contract pursuant to an express term. The court also held that the defendant did not breach any terms of the contract, including any implied terms under the Sale of Goods Act 1896, as the implied terms were excluded by the express terms of the contract. The court concluded that the plaintiffs were not entitled to a refund of the purchase price, damages for negligent misrepresentation, or damages for breach of contract. The court ordered that there be judgment for the defendant.

Orders