Lach Transport Pty Ltd v Wakefield Trucks & Ors No. DCCIV-96-977

LACH TRANSPORT PTY LTD V WAKEFIELD TRUCKS PTY LTD &
OTHERS
[2000] SADC 81

Judge Taylor

Mr John Lach now aged 59 years had been driving trucks since 1956.
In 1980 he commenced his business of Lach Transport with a contract with refrigerated food transport with Unilever Australia to carry goods from Adelaide to Perth.
In 1981 Unilever closed its functions in Adelaide and Mr Lach then commenced to pick up goods from Sydney and Melbourne to then take them across to Perth.
The trips to Sydney and Melbourne were accomplished by using the prime mover with one van attached.
On the Perth run a ‘road train’ i.e. with two vans is used except for the first part out of Adelaide to Port Augusta and then from Northerm, 95 kilometres from Perth.
During the period from December 1992 to February 1993 after crossing the Nullarbor he had two routes to choose from, that is to go up to Kalgoorlie or down to Esperance.
In the early days of travelling he was able to proceed via Esperance but that changed when there were provisions that a road train could not go down to Esperance, and in fact the journey down through Kalgoorlie to Perth is shorter by about 200 kilometres.
The advantage of the Esperance trip when it was allowed, is that he was able to take the complete road train within about 30 kilometres of Perth.
Lach transport is a company incorporated pursuant to the Corporations Law and is engaged in the business of interstate transport haulage, and carried on its business at 230 Hayman Road Two Wells.
On the 1st March 1993, the company owned 6 prime movers and 15 various trailers and dolly’s.
The prime movers are listed as follows:
LT2   - Kenworth W924 (SAR)          SX19BT    (1985)      $80,500
LT4   - International Transtar F4670   SX60BD    (1988)      $125,000
LT6   - International Transtar F4670   SX09BP    (1990)      $150,000
LT8   - Kenworth W925 A/R              SX93BP    (1983)      $80,000
LT10- International Transtar F4670   SX79BG (1989)      $145,000
LT12- Kenworth “W” Model              UKU357 (1979)      $72,000”
Until May 1995 John Lach was the director of Lach Transport and owned all of the shares, and at that time he sold his shares in the company to Wayne his son, and although Wayne had been a director from a much earlier time, in fact the company had been run and controlled by John until that transfer, from then on the company was owned and continued in the control of Wayne Lach.
Wakefield Trucks Pty Ltd is a company incorporated under the Corporations Law and was generally under the control of its director Mr Umpherston. Mr Umpherston had been involved in the transport industry and associated matters for many years until in 1978 he commenced his own business Wakefield Trucks.
That business commenced with a single dealership with International Trucks.
In 1991, he obtained the dealership for Western Star Transport Vehicles. Today they still have both of those dealerships and have about 20 employees.
He describes his industry as follows:
“Basically we sell and service new trucks, both International and Western Star.
We sell the used trade-ins that we take on new trucks we carry out repairs truck repairs. We also carry out heavy truck crash repairs and we supply spare parts to the heavy end of the truck industry. We concentrate primarily on the prime movers and have little to do with trailers and we support or try to support our customers in those areas.”
Lack Transport had been a customer of Wakefield Trucks in one way or another from about the mid 80’s, and they had in the past bought a number of trucks from them being all International Tristars. One was a single rated truck, two were road train trucks and as well as that they had performed considerable workshop work for the Lachs and supplied them with spare parts and some crash repair work as well.
Mr Umpherston further explained his industry:
“Q.... Taking you back to 1990, that’s before you have the Western Star Dealership. I want to ask you some questions then about how you used to run the business with your then existing international dealership. First of all, can you explain something that we have heard references to in the evidence which is that the International truck or a truck such as the International, can come with a choice of engines.
A.That’s correct.
Q...... Can you explain how that works again in relation just to the international dealership in around 1990.
A.Depending in the time frame we are talking about, because it does vary. Manufacturers tend to supply a particular engine and then drop it out of their range from time to time but in the period up until we took on the Western Star franchise, until offered Cummins engines and in some models Detroit engines and at some time caterpillar engines.
Q...... Who makes Cummins engines.
A.They are made by, I couldn’t quote the exact name of the company but hey are Cummins and they are based in America and they are one of the three large engine manufacturers in America, Detroit or the same.
Q...... does that mean they are actually a different engine made by a different manufacturer than Cummins.
A.No, Cummins are made by Cummins and fitted into International trucks in the case we are talking about.
Q...... What do you mean when you describe the Detroit engines.
A.That’s another make of engine. They are made by another company. Originally was owned by the General Motors Corporation we are all familiar with; sold off in 1986 to a gentleman by the name of Roger Pinsky, who is reasonably well-known in the world. They manufacture Detroit engines the same as Cummins do but at a different factory owned by different people and they supply the truck industry as well.
Q...... What about Caterpillar.
A.Some thing. They are an American company based in Peoria. They manufacture engines. They also are very well-known in the heavy earth moving equipment field.
Q...... For example, Lach Transport, you had sold them a number of trucks prior to this Western Star.
A.Three trucks.
Q...... Did they all have the same engine.
A.No. The first one had a Cummins engine and a 365, 400 horse power engine. It was a single rate truck because of the configuration. The second one had a Caterpillar 425 engine in it and was a doubles rated truck. The third one had a Cummins 444 which again was a double rated truck.
Q...... do you stock these trucks at your premises. Do you have out in the yard a dozen of them already manufactured and available for sale, or not.
A.No. I won’t say that’s never happened but it is not our practice to carry stock trucks, mainly because there are so many variations that we find with a stock truck it normally doesn’t fit the buyer’s requirements so we are then in a position where we either have to build a truck to suit him or are we have to modify the existing truck to suit colours, capacities, engine mixes.
Q...... In 1991 were there some developments which led to you taking on the Western Star franchise - …”

Referring to the list of trucks which were owned by Lach Transport items number LT4, LT6 and LT10 were the vehicles purchased from Wakefields.
The LT4 had a Cummins horse power engine, LT6 had a Cummins triple 4, 440 horse power and LT10 had a Caterpillar 425B engine, which is 425 horse power.
Sometime in 1992 John Lach decided that he was going to upgrade the Kenworth ‘W’ model truck LT12 and to trade it in for a new vehicle.
John Lach then commenced having discussions with Mr Umpherston and Mr Gare, both of Wakefield Trucks.
Mr Gare as the sales representative of Wakefield Trucks and had complete authority from Mr Umpherston to deal with any matters relating to the company with his clients.
In about October 1992 Mr John Lach “we were discussing, kicking the matter around with Wakefield Trucks the purpose of a new vehicle”.
Mr John Lach does not remember whether the initial conversations were at his place of business at Two Wells or at the place of business of Wakefield Trucks, as he would attend there frequently with matter relating to his vehicles.
At that time Mr John Lach had a very friendly relationship with Mr Umpherston and would often call in to discuss road transport vehicles and spare parts and repairs and other associated matters with him.
Mr John Lach remembers in first discussing the matter with Mr Umpherston he was adamant that he did not want a prime mover with a Cummins 444 engine because he had one and thought that it was a poor performer and used excessive fuel.
He told Mr Umpherston that what he would like is another 425B Caterpillar engine that he was operating in one of his vehicles and he was very well satisfied with it.
I am satisfied from the evidence of most of the witnesses that fuel economy in the operation of interstate transport vehicles is of great significance and can have effects on the economy of the operation of the business.
Lach Transport kept detailed trip analysis of the fuel used on each of their trips relating to the kilometres which they travelled, for example, between Ceduna and Norseman and then related all of it back to miles per gallon.
Miles per gallon is the accepted measurement of fuel use in the transport industry.
Lach transport made that analysis for each of its trucks at the end of each trip and his 425B Caterpillar motor in his International Tristar was returning 4.3 to 4.4 miles per gallon when operating as a road train.
Mr John Lach remembers particularly that all his early discussions with Mr Umpherston related to a 425B motor.
I accept the evidence of Mr John Lach.
After John Lach’s discussions over some months with Mr Umpherston, eventually a quotation for a vehicle containing all the detail of how the vehicle was going to be built and its configuration was sent to Lach Transport on the 13th of December 1992. That quotation was for a Western Star vehicle with a Caterpillar 3406CPEEC 460 horsepower engine.
At the end of that quotation there is an endorsement: “please note as per our quotation dated the 28.11.92 the price of this Western Star has not altered as Western Star are prepared to offer the Caterpillar 460 HP at no additional charge to the price of the 424 5 HP quoted”.
I am satisfied that note refers to an earlier quotation, that has not been available in this trial to what John Lach originally had requested knowing its fuel consumption and its general abilities.
I accept the evidence of John Lach that during discussions concerning the new motor being offered that mention was made of the fuel consumption of the 425B and was assured from time to time that the new motor would be more economical and would return a greater fuel economy.
“LACH TRANSPORT 13.12.92
HAYMAN ROAD,
TWO WELLS. 5501
ATTENTION: JOHN LACH
PLEASE ACCEPT THE FOLLOWING QUOTATION FOR THE SUPPLY OF A NEW WESTERN STAR MOVER AS PER SPECIFICATION.

Model :

WESTERN STAR 4864 FX. 90.00 TONNE GROSS COMBINATION

ENGINE :
CATERPILLAR 3406c. PEEC
460 HP / 1650 1B/FT TORQUE
HORTON FAN CLUTCH / JACOBS BRAKE
LOW WATER ALARM / CRUISE CONTROL
DUAL EXTERNAL AIR CLEANERS
SINGLE CHROME EXHAUST 4.2 METRES HIGH*

DRIVELINE :
SPICER WIN PLATE CLUTCH
H/D SPICER 1810 SERIES DRIVESHAFTS
EATON RTLO16618 - 18 SPEED OVERDRIVE
TRANSMISSION OIL COOLER

REAR AXLES :
ROCKWELL SSHD. 90.0 TONNE RATED
ROCKWELL AC6s. 6 ROD SUPENSION

CHASSIS :
HI TENSILE SINGLE RAIL - 208” WHEELBASE
TAPERED END OF FRAME/ H/D CROSS MEMBERS
AIR MOISTURE EJECTOR / FUEL-WATER SEPERATOR
AIR LINES & TOW HITCH AT END OF FRAME
IN CHASSIS MOUNTED BATTERY BOX
HAND CONTROL VALUE & COILED AIR LINES
4 X 100 GALLON ALUMINIUM FUEL TANKS

FRONT SUSPENSION :
ROCKWELL FG941 FRONT AXLE - 6.6 TONNE CAPACITY
62.5” TAPERED LEAF SPRINGS
H/D GABRIEL SHOCK ABSORBERS

SLEEPER :
WESTERN STAR 42” HI-RISE SLEEPER
STUDDED SUPER APPEARANCE TRIM
DOUBLE SLEEPER BUNKS

TYRES & RIMS :
GOODYEAR 11R22.5 TUBELESS RADIALS
TRACTION PATTERN ON DRIVE
8.25” STEEL TUBELESS RIMS - 11 OFF

PAINT :
CAB & SLEEPER - ANY TWO COLOURS
CHASSIS - ANY SINGLE COLOUR
SIGNWRITING INCLUDED

CABIN :
AIR BAG CAB SUSPENSION SYSTEM
STUDDED SUPER APPEARANCE TRIM
ADJUSTABLE STEERING COLUMN
BOSTRUM 915 AIR RIDE DRIVER’S SEAT - FIXED PASSENTER’S
OVERHEAD CONSOLE WITH RADIO CASSETTE & CB
AIR CONDITIONING & TINTED WINDOWS
DUAL ROOF MOUNTED AIR HORNS & CLEARANCE LIGHTS

MISC. EQUIPMENT:
RADIATOR BUG SCREEN & BUG DEFLECTOR
WINDSCREEN STONEGUARD
FULL PLASTIC DRIVEGUARDS TO REAR WHEELS
ALUMINIUM BULL BAR & 100W BULL LIGHTS
HOLLAND QUICK RELEASE TURNTABLE
CHROME HUB CAPS & NUT COVERS

DELIVERY :
APPROX. 10 - 12 WEEKS

PRICE :
INCLUDING FREIGHT & DLEIVERY TO ADELAIDE ….. $224,600

TRADE IN :
1979 W MODEL KENWORTH AS APPRAISED …. $ 43,000

WARRANTY :
PLEASE REFER TO ATTACHED WARRANTY SCHEDULES FOR WESTERN STAR AND CATERPILLAR

OPTIONS
AT ADDITIONAL COST:-
WESTERN STAR MODEL 4964 LONG BONNET $1,800

DUAL CHROME EXHAUST $1,150

PLEASE NOTE: AS PER OUR QUOTATION DATED 28.11.92 THE PRICE ON THIS WESTERN HAS NOT ALTERED AS WESTERN STAR ARE PREPARED TO OFFER THE CATERPILLAR 460 HP AT NO ADDITIONAL CHARGE TO THE PRICE OF THE 425 HP QUOTED

WE HOPE THAT THIS PROPOSAL MEETS WITH YOUR APPROVAL AND PLEASE DO NOT HESITATE TO CONTACT US IF YOU SHOULD HAVE ANY QUERIES, AS YOU CAN BE ASSURED OF OUR BEST ATTENTION AT ALL TIMES.
YOURS FAITHFULLY
BRIAN UMPHERSTON LESTER GARE”

I accept the evidence of John Lach that the question of fuel consumption had always been a topic of conversation between him and Wakefield Trucks over the purchase of other vehicles from time to time as the fuel economy was of paramount importance to him.
When discussing fuel economy on his various trucks when used as road trains or as towing single vans Mr Lach gave the following evidence:
“Q. What other expenses apart from fuel you had.
A...... There are lease payments. There is insurance, there is registration. There are road train permits. There are tyres, fuel and oil changes, filters, breaks.
Q.Out of all those ones you have mentioned, is the most significant one fuel.
A...... The most important one, and most significant one is fuel, yes.
XN
Q...... Between your trucks, did you have a variance in terms of performance in the fuel that any truck would do over a given run.
A.Yes, we had one of the 400A motors, the Caterpillar, in one of the vehicles which was returning 3.4, 3.6 mile to the gallon, and the triple 4 Cummins was returning around a very low 4. The 425B was going 4.3 to 4.4.
Q...... you could get from one truck to another significant variation in fuel consumption.
A.Yes.
HIS HONOUR
Q.Did it vary much with different drivers.
A...... It can, if you have a rev head, but with these trucks speed limited and road trains are only to do 90 kilometres per hour, an experienced - or experienced drivers would not vary by too much difference. It could be a hundred, sometimes 200 litres over the whole journey from Adelaide to Perth and return.
XN
Q...... Did you from time to time rotate different drivers through different trucks.
A.Yes, we did.
Q...... Particularly in relation to the truck that is the subject of the proceedings, whilst you were a director of the plaintiff company, did you use different drivers on the truck.
A.Yes, we did.”

On the 8th of March 1993 Wakefield Trucks sent a more detailed specification of the vehicle which they were offering to Mr Lach and included in it was the price of the vehicle of $224,600 and a trade-in of the 1979 W model Kenworth UKU357 for $43,000. On 8 March 1993 the quotation was updated in some particulars
The vehicle traded in for the $43,000 is also the vehicle L12 on the list of the 10 six prime movers owned by Lach Transport Pty Ltd.
This offer of a Western Star road train to Lach Transport was the first sale of Western Star vehicle by Wakefield Trucks.
The first Western Star road train purchased in South Australia was bought by John Singleton who operated a major transport company. At that time Western Star’s operations were centred on Queensland, although they were primarily a Canadian company.
Singleton having purchased the vehicle, it eventually arrived in South Australia and Singleton made representations to Western Star that if he was going to deal with them they needed an agent in Adelaide and as a result of that Wakefields then became the agents for Western Star. Although they did not sell the Western Star to Singleton they were involved in the delivery of it to him once it arrived in Adelaide.
The Western Star operation then reverted wholly to Canada.
Some prime movers are able to be bought in the sense of ‘off the shelf’, that is they are existing and they are bought as they are, such as, for example, the Scania.
Some prime movers together with their whole road train are made up within particular available specifications to fit in with a client’s requirements and then they are constructed in accordance with those requests providing they are within the ambit of what Western Star can provide.
Therefore, the two documents supra with the details of the proposed vehicles which, when an order is given, would be forwarded to Canada and the vehicle constructed with those particular specifications and the Caterpillar engine obtained from Caterpillar Inc. in the United States and taken to Canada and installed in the engine.
The whole of the complete rig would then be transported to Australia and delivered to Adelaide ready for use.
Once Wakefield trucks had sent their order off they were committed to purchasing it and of course they would not pursue such an order unless they had a signed order and commitment from their customer.
It was well known and accepted by Wakefield Trucks and Lach Transport and probably with Wakefield Trucks and other transport companies that no transport company bought one of these vehicles for cash but would buy it subject to obtaining finance for it. It is obvious, and I accept the evidence of John Lach, that before they would commit themselves finally for a purchase they would have to obtain finance and to satisfy themselves that the operation of their truck purchase would return them sufficient to make a profit and to pay the onerous payments on the finance obtained.
Mr Allan Breakwell is a finance broker.
Mr John Lach had been using his services for obtaining finance since about 1989, and he asked him to obtain finance for the proposed purchase of the Western Start truck in 1992.
Mr Breakwell first applied to AGC for finance but was not successful.
As a result of that, he discussed the matter further with John Lach that he required further information about the proposed new purchase and he wanted that information to refer to all financial benefits that he could achieve from this new vehicle to offset the finance payments, and it was necessary to present this information to the financier and he asked that it be in writing.
Mr John Lach had also had some such discussions with Wakefield Trucks, probably with Mr Gare who he had known for about some 12 months before this incident and he understood he was a salesman employed by Wakefield Trucks.
For the purposes of preparing such a letter Mr Gare came to Lach transport and obtained information as to the operation of their present business, the fuel used, the kilometres travelled, and various runs from Adelaide to Perth. There is a difference between Mr Gare and Mr Lach as to how the information was obtained by Mr Gare for the purpose of providing the particulars that Mr Lach wanted. Mr Lach says that Mr Gare looked through his documents and trip sheets and became aware of that information from the documents as well as from Mr Lach. Mr Gare’s evidence is that he obtained the information verbally only from Mr Lach and he did not look at any documents.
Where there is any difference in the evidence between Mr Lach and Mr Gare, I prefer the evidence of Mr Lach.
In addition, I accept the evidence of Mr Lach that he had additional discussions on that occasion
“Q.... What discussions, if any, did you have about the operational use of the truck; in other words, what the truck actually did during the course of its use for these figures.
A.The new vehicle?
Q...... We are dealing with the existing vehicle.
A.The existing vehicle, that truck did road trains from Adelaide to Perth.
Q...... Did you discuss that with Mr Gare.
A.Yes, I did.
Q...... Was there any discussion about the detail with Mr Gare.
A.It involved running single trailer to Port Augusta, coupling up as a road train, going either around the bottom around Esperance into Armadale, was the place, 30 kilometres from the south of Perth, or going via Northam, unhooking at Northam and taking a single trailer into Perth, unloading it, taking it back to Northam, unhooking it, hooking up the loaded one and taking it into Perth and then returning to Northam, hooking up as a road train again and then returning to Adelaide.
Q...... Did you talk about which parts of the journey were loaded and unloaded in terms of the vans having freight in them.
A.Yes, I did tell Lester that most of the time we were returning from Perth empty.
Q...... Apart from looking at the documents that are now Exhibit P4, did Mr Gare do anything else with those documents. Did they leave your premises.
A.No, they never left my premises, no.
Q...... Did you have any other discussions with Mr Umpherston at this time concerning the new engine, the 3406C engine.
A.No.
Q...... This is at about the time that Mr Gare came to your premises.
A.No, I can’t recall any other.
Q...... On p.14 can I direct your attention to the paragraph headed ‘Fuel savings’. Do you see that paragraph.
A.Yes, No. 2, ‘Fuel savings’, yes.
Q...... do you see the reference in the second line to 4.5 to 4.8 miles per gallon.
A.Yes, I can.

I accept that prior to receiving the letter which he had requested, Brian Umpherston told John Lach that Ray Singleton’s truck, which was a 3640B Caterpillar engine of its own special characteristics was performing quite well and he seemed to be happy with it and be believes that conversation would have been about the end of January or early February and Mr Lach also had a telephone conversation with Mr Singleton who he knew quite well as they often shared loads within the industry.
As a result of the request for information from Wakefield Trucks, through Mr Gare and of particulars of the proposed purchase a letter dated 11 February 1993 was sent by Wakefield Trucks Pty Ltd to Lach Transport:
“LACH TRANSPORT  11.2.93
HAYMAN RD
TWO WELLS
ATTENTION: MR JOHN LACH.
FOLLOWING OUR RECENT DISCUSSION, AND HAVING ALSO CONSULTED JOHN HOLLIDAY FROM THE LOCAL BRANCH OF CATERPILLAR AUST, WE HAVE COMPILED THE FOLLOWING FOR YOUR CONSIDERATION.
1)FUEL CONSUMPTION:     ASSUMING 312,000 KMS PER YEAR (I.E. 52 ROUND TRIPS TO PERTH AT 6,000 KMS PER TRIP) AND ASSUMING THE AVERAGE PRICE OF DIESEL AT ALL OF YOUR FUELLING POINTS EN ROUTE AT 65¢ PER LITRE, WE KNOW THE FOLLOWING:-
IN ACCORDANCE TO THE RECORDS THAT YOU HAVE SUPPLIED US WITH, THE AVERAGE FUEL CONSUMED PER TRUCK, PER TRIP, IS 4,600 LITRES. THIS EQUATES TO 3.66 MILES PER GALLON. - OR $3,022 OF FUEL PER TRIP. TOTAL PER MONTH $13,097.
2) FUEL SAVINGS: THE NEW CATERPILLAR 3406C / 460 HP THAT WE QUOTING YOU IN OUR NEW TRUCK PROPOSAL IS RETURNING BETWEEN 4.5 AND 4.8 M.P.G. IN ACTUAL FLEETS OPERATING ROAD TRAINS OF THE SAME CONFIGURATION, SIZE AND CONDITIONS AS YOURS.
TO ASSUME THE LESSOR OF THESE TWO FIGURES (4.5 MPG) THIS EQUATES TO $2,458 OF FUEL PER TRIP OR $10,652 PER MONTH.
A SAVING OF $564 PER TRIP OR $2,445 PER MONTH.
3)FUEL COSTS: AS THE PRICE OF DIESEL INCREASES - SO DOES THIS SAVING PER TRIP.
4)TANK CAPACITY: AS PER OUR QUOTATION ON A NEW WESTERN STAR PRIME MOVER TO YOUR REQUIREMENTS, WE CAN OFFER A LONGER WHEELBASE TRUCK WITH EXTRA FUEL TANK CAPACITY. THIS SOMEWHAT SMALL FEATURE DOES, HOWEVER ALLOW YOUR DRIVERS THE EXTRA RANGE TO BE ABLE TO TAKE ADVANTAGE OF CHEAPER FUEL POINTS. I.E. DIESEL AT ESPERANCE IS 5¢ A LITRE CHEAPER THAN AT NORSEMAN - 205 KMS APART.
5)REPAIRS AND MAINTENANCE: TO TAKE IN TO ACCOUNT THE WARRANTIES APPLICABLE ON NEW TRUCKS THAT ARE OFFERING UP TO AND INCLUDING 5 YEARS/800,000 KMS, WE KNOW FROM ACTUAL OPERATOR RUNNING COSTS, THAT APPROXIMATELY 3¢ PER KILOMETRE CAN BE SAVED WHEN COMPARING IT TO AN OLDER TRUCK LIKE THE KENWORTH THAT YOU ARE WANTING TO TRADE. THIS IS IN ADDITION TO FUEL COSTS, AND IS ON THE CONSERVATIVE SIDE.
THIS EQUATES TO:-
5 YEARS @ 1,560,000 KMS @ 9.5¢ PER KM (EXISTING UNIT) = $148,200
5 YEARS @ 1,560.000 KMS @ 6.5¢ PER KM (NEW TRUCK) = $101,400 TOTAL SAVING $46,800 OR $780 PER MONTH.
6)RECOVERY COSTS: AS WELL KNOWN, OPERATING OLDER AND LESS RELIABLE TRUCKS ON THE PERTH RUN IS FAR RISKIER THAN OBVIOUSLY A NEW UNIT. A POINT TO CONSIDER WHEN THE RECOVERY COST OF A IMMOBILISED PRIME MOVER, LET ALONE THE TRAILER AND FREIGHT, IS AROUND $2,000.
7)DEPRECIATION AND FINANCE: THERE IS OBVIOUSLY A GREAT TAX ADVANTAGE IN DEPRECIATION OF NEW EQUIPMENT, APART FROM THESE OTHER COST SAVING BENEFITS, AS I’M SURE YOUR ACCOUNTANT HAS CALCULATED, BUT ADDITIONALLY THE CURRENT LENDING RATE OF INTEREST IS A MAJOR CONSIDERATION. THE PRICE OF A ROAD TRAIN PRIME MOVER HAS INCREASED APPROX. 20% OVER THE LAST 3 YEARS - HOWEVER INTEREST RATES HAVE DROPPED BY APPROX. 40%.
8)LOST REVENUE: AT YOUR CURRENT FREIGHT RATE OF $8,000 PER TRIP FOR A TWO TRAILER OPERATION, YOU WOULD WELL LOOSE TWO, MAYBE THREE TRIPS TO PERTH AND RETURN PER YEAR OPERATING A 15 YEAR OLD PRIME OVER Vs NEW EQUIPMENT.
AT TWO LOST TRIPS PER YEAR EQUATES TO $16,000 OR $1,333 MONTH.
9)RESALE VALUE: USING A DEPRECIATED VALUE OF 22% PER YEAR ON NEW EQUIPMENT, WHICH FALLS FAR SHORT OF ESTIMATED MARKET VALE, (sic) THE ACCUMULATED ASSET IN THE NEW WESTERN STAR WOULD BE APPROX. $65,000 AFTER 5 YEARS. COMPARED WITH THE MARKET VALUE OF YOUR KENWORTH AT $10,000 IN ANOTHER 5 YEARS TIME. A DIFFERENCE OF $55,000. AN ACCUMULATED ASSET AT A RATE OF $916. PER MONTH (CONSERVATIVELY)
10)SAFETY: AN OLDER AND MORE FATIGUED TRUCK IS MORE LIKELY TO BE INVOLVED IN AN ACCIDENT, AS MUCH AS WE ALL DON’T WANT, AND CONSEQUENTLY ATTRACTS DAMAGES, CLAIMS, INSURANCE PREMIUM INCREASES AND DOWN TIME. WHICH CAN BE UP TO 3 MONTHS IN SERIOUS CASES.
11)MISC: THERE ARE MANY OTHER CONSIDERATIONS THAT SHOULD BE ALSO PART OF YOUR DECISION TO UPDATE EQUIPMENT:
COMPANY IMAGE. AN IMPORTANT PART OF ANY BUSINESS.
DRIVER ACCEPTANCE. A KNOWN FACT THAT IF YOUR DRIVER LIKES HIS (OR HER) VEHICLE, IT GETS LOOKED AFTER BETTER.
PROGRESS. COMPANIES AND BUSINESSES LIKE TO DEAL WITH OTHERS WHO MOVE WITH THE TIMES AND STRIVE TO KEEP UP WITH THE LASTEST (sic) TECHNOLOGY IN AN EFFORT TO INCREASE EFFICIENCY.
SERVICE.AS WELL KNOWN, IT IS EASIER TO SERVICE AND TO SOURCE SPARE PARTS FOR NEW VEHICLES THAN OLD.
BUY AUSTRALIAN. WESTERN STAR IS THE ONLY AUSTRALIAN OWNED WORLD WIDE TRUCK MANAFACTURER.(sic).
WE HOPE THAT ALL THIS INFORMATION IS OF ASSISTANCE TO YOU, AND PLEASE DO NOT HESITATE TO CONTACT US IF YOU HAVE ANY QUERIES, AS YOU CAN BE ASSURED OF OUR BEST ATTENTION AT ALL TIMES.
YOURS FAITHFULLY
BRIAN UMPHERSTON  LESTER GARE”
I accept the evidence of John Lach overall that the impression he had received from Wakefield Trucks, either from Mr Gare or particularly from Mr Umpherston that when the 425B was not available that he had been given to understand that the new electronic motor which was the newest of the Caterpillar engines would perform better and, of course, it was to be a 460 HP rather than a 425 and that its fuel economy would be better because of the new advanced technology in the engine.
I find that the letter of 11 February 1993 confirmed in much greater detail what John Lach had understood the benefits to be obtained by purchasing the new Western Star. I accept his evidence contrary to Mr Breakwell’s evidence that although this document was primarily obtained for the benefit of Mr Breakwell to obtain finance it also had a second purpose as stated in the evidence of Mr Lach to confirm to him the economic advantages of the new vehicle and that he could afford to purchase it, operate it and be able to pay off the finance debts.
Mr Breakwell’s evidence was that prior to obtaining this letter of 11 February 1993, he had been instructed by John Lach to obtain finance and he had endeavoured to obtain finance from AGC, but it had been refused. I find that the proper inference from that is that there was not sufficient information available to show that the proposed purchase and operation was viable, hence the request for the letter of 11 February, so that he could seek finance elsewhere.
Mr Breakwell’s evidence is that, if he had been able to obtain finance from AGC without further information that the purchase would have gone ahead.
If there is any difference in the emphasis on these matters between Mr Breakwell and Mr John Lach, I accept the evidence of Mr John Lach as to his state of mind and his intentions as to the information he needed available to satisfy himself, who was the one who was going to be liable to make all payments and to operate his industry at a profit.
I therefore accept that the letter of the 11 February 1993, had two purposes. One, to assist in obtaining finance and, two, to satisfy John Lach that the whole process was viable.
I find that paragraph 2 of that letter is misleading and a deceptive statement contrary to section 52 of the Trade Practices Act and section 7 of the Misrepresentations Act.
I find that the letter of 11 February is stating, with certainty, a present state of facts and a future state relying on those facts and what the effect will be in the future.
“Bill Acceptance Corporation Ltd v GWA Ltd (1983) 50 ALR 242 @ 246 line 36
Misleading or deceptive conduct may be constituted by the making of statements. They may be statements as to existing or past facts, statements as to the current holding of a belief or intention or promises as to future conduct. The distinction between promises of future conduct on the one hand and statements as to existing or past facts on the other is well recognised in cases of fraud or deceit. It may be necessary for the purposes of s52, in the case of statements or representations as to future conduct, to distinguish between promises on the one hand and predictions on the other, the former being within the scope of s52 and the latter perhaps not: see Thompson v Mastertouch TV Service Pty Ltd (1977) ATPR 40-027, per Franki J at 17,364; R v Sunair Holidays Ltd [1973] 1 WLR 1105 and Beckett v Cohen [1972] 1 QLR 1593.”
@ 247 line 15-45:
“.... part of the contravenor, irrespective of the type of representation made.
It has been held that s52 is not confined to conduct that is intended to mislead or deceive (see the Hornsby case) or conduct engaged in as a result of a failure to take reasonable care (see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 42 ALR 1, per Gibbs CJ at 5) or that the liability imposed by the section is unrelated to fault, and that: “A corporation which has acted honestly and reasonably may therefore nevertheless be rendered liable to be restrained by injunction, and to pay damages, if its conduct has in fact misled or deceived or is likely to mislead or deceive” (per Gibbs CJ in Parkdale v Puxu, at 5).
The application of these principles is clear in the case of statements as to past or present facts, but their application is productive of considerable difficulty in cases of representations as to future events or conduct where issues as to the respondent’s state of mind are involved.
This difficulty was recognized by Fitzgerald J in Stack v Coast Securities No 9 Pty Ltd (1983) ATPR 40-342 at 44,119; 46 ALR 451 at 456, where his Honour said: “It would be appropriate at this interlocutory stage, and not inconsistent with any submission made before me on behalf of either applicants or respondent, for me to act upon a view which has been consistently adopted by a number of judges of this court that irrespective of whether representations as to the future events or conduct constitute promises or predictions, they involve contraventions of the presently relevant provisions of the Act only if it is established that the belief of the respondent was at the time different from what was stated, or that the respondent did not believe what was stated, or was recklessly indifferent as to what was stated. Accordingly, an issue as to the respondent’s state of mind at the relevant time is, in fact, central to these proceedings as it was to the proceedings in the Supreme Court” see also Fitzgerald J’s judgment in Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) ATPR 40-343 at 44,153; 47 ALR 114.”
Finance was eventually obtained in accordance with the letter of 26 February 1993 from Access Capital:
“26 February 1993
TO:  Mr Geoff Carter
  Household Financial Services Limited
  75 Hindmarsh Square
  ADELAIDE   SA 5000

APPLICATION FOR FINANCE
Applicant:                   LACH TRANSPORT PTY LTD
  (A.C.N. 007 981 026)
  230 HaYMAN Road
  TWO WELLS SA   5501
Type of
Business:                   Interstate contract haulier
Years
Established:              17 Years
Directors/
Guarantors:               Joint & Several Guarantees of :

. Horst LACH (John)
   (d.o.b. 15/2/41)
   230 Hayman Road
   TWO WELLS SA
. Wayne Friedrich LACH
   (d.o.b. 14/11/61)
   35 Serenade Crescent
   ABERFOYLE PARK SA

Equipment to
be Financed: One (1) only new Western Star 4964F prime mover built to road train specifications
Reg. No: SX40BX

Supplier:Wakefield Trucks
Brian Umferston: (sic) 280 8133

Delivery:May 1993
FINANCE DETAILS
.Documentation :       Commercial Hire Purchase
.Purchase Price   :       $224,600.00
.Trade-In Equity: $ 25,000.00
.Amount to be
financed:       $199,600.00

.Term : 60 months
.Repayments
(in advance) : $4,316.76 per month

.Balloon payment:       Nil
.document Rate   :       11.17% per annum
CREDIT DETAILS
.Bank                   :       Commonwealth Bank of Australia
-Salisbury

.Accountant : Gray Perry, Chartered Accountants
Frank Robinson: 212 2366

.Finance
References: CBFC Limited
Standard Chartered
AGC Limited
Husehold Commercial Finance

.Trade
References: Ampol Australia
Cummins Diesel
Bell Tyres
Bridgestone Tyres

BACKGROUND & COMMENTS

Applicants are well known to Household Commercial having been introduced to you by Access Capital initially in April 1991.
John Lach and his son, Wayne, are interstate contract hauliers and have been in the industry for 17 years.
They own and operate six prime movers (three Kenworths and three Transtars) and eleven refrigerated vans. Their major contract, which they have held for the last thirteen years, is with E.O.I. (Eatible Oil Industries - a division of Unilever Aust) producers of Flora, Fairy and Stork margarines. The contract involves carting E.O.I.’s products from Sydney and Melbourne to Perth and accounts of 80% of their loading.
In addition to the above, Lach Transport also carts for Arnotts Biscuits from Adelaide-Perth and subcontracts through Powers Transport, Ballarat (Ballarat-Perth) and Sargents Transport, Ballarat (Adelaide-Perth) carting refrigerated freight for McCain Foods.
Backloading from Perth is usually with TNT Express and Refrigerated Roadways.
Applicants are now looking to trade one of their old Kenworth prime movers for $43,000, which is currently under finance to AGC with repayments of $1,587 p.m. - balloon payment of $18,000 due in July 1993. The new vehicle is a Western Star 4864FX prime mover which is built to road train specifications and will cost $224,600. The equity of approximately $25,000 will be put back as an up-front deposit with the balance to be repaid over 36 months on commercial hire purchase with a 40% balloon payment.
John Lach together with Wakefield Trucks and Caterpillar have compiled a comprehensive letter which outlines the savings and benefits of purchasing the new vehicle. The net increase in monthly repayments after trade in, will be approximately $3,000 p.m. But Lach Transport also has an International Transtar prime mover with CBFC at $2,950 per month ($36,000 balloon payment) which will expire in October this year.
FINANCIAL SUMMARY
The financial statements for the twelve months to 30 June 1992 and 1991 are attached and are summarised as follows:

12 mths to
June 1992
$
12 mths to
June 1991

$

Contracting Income
1,934,576 1,422,135

Gross Profit 604,049 323,859

Operating Profit for

   tax purposes
11,721 (29,491)

after deducting -
depreciation
146,301

95,058

amortisation 33,194 57,059

Adjusted Operating Profit 191,216 122,626

The above figures are after Directors’ salaries and allowances of $44,386 in 1992 and $52,752 in 1991.
Accumulated tax losses of $21,945 have resulted in a deficiency in shareholders’ equity of $21,845. However the transport industry enjoys substantial depreciation write offs (up to 40% diminishing value) which lead to a distorted picture as to the true market value of their fixed assets.
Submitted by:     Allan Breakwell
  ACCESS CAPITAL PTY LTD”

I find that having relied on the letter of 11 February and the document confirming finance that John Lach then entered into a contract to purchase the vehicle as quoted on 8 March 1993. That contract contains a number of printed pages and the evidence of Mr Umpherston and Mr John Lach is that none of those printed pages were referred to by either Mr Umpherston or Mr Lach at the time that the retail order form was signed: Page 21 of exhibit P1
“TO:          Wakefield Trucks Pty Ltd
         of:    PO Box 440 Salisbury
FROM:     Lach Transport Pty Ltd
of     Hayman Road
Two Wells
… HEREBY OFFER TO PURCHASE …
1...... 1 NEW WESTERN STAR 4964 AS PER QUOTE AND INCLUDING - HENDRICKSON REAR SUSPENSION - RT461 WITH SHOCKERS & TORQUE RODS ROUND
STDHEAD LIGHTS - 4 X 100 GALL FUEL DUAL EXHAUSTS PAINTED WHITE & RED CHASSIS BRIDGESTONE 722 TYRES DRIVE & 295 X 80 ON STEER.
224,600.00
LESS TRADE-IN
1979 W MODEL KENWORTH P/MOVER
AS APPRAISED
......... Reg. No. UKU357
Trade-In Allowance  $43,000”
Page 24 of Exhibit P1
“It is my intention to settle by Cash or Bank Cheque on delivery.
Cheque drawn on ………………………………………..bank at …………………………..town
International Harvester Credit Corporation of Australia Limited …………………………...town
Other finance company HOUSEHOLD COMMERCIAL ……………………………………town
I ACKNOWLEDGE that nothing in this Order constitutes acceptance of any request for finance made by me in connection with purchase of Products.
Delivery of products will be made at
WAKEFIELD TRUCKS    at    BURTON  town
on or about ASAP 19 …… (herein called “preferred date”) BUT PURCHASER AGREES that Vendor shall not be liable to Purchaser for damages or on any other account whatsoever for delivery delays and that except as set out in paragraph 4(a) of the terms and conditions, such delays shall not affect contract between Vendor and Purchaser in any manner whatsoever.
I ACKNOWLEDGE having read and understood the provisions of this Order (including all terms and conditions herein) and FURTHER ACKNOWLEDGE having received a signed copy of this Order.
I HEREBY AUTHORISE Vendor to complete such of the particulars contained in the Schedule of Products (other than price) which are not completed upon the signing hereof and which are required for the better identification of Products
PURCHASER ACKNOWLEDGES THIS ORDER IS NOT BINDING ON OR ENFORCEABLE AGAINST VENDOR UNLESS AND UNTIL A BINDING CONTRACT IS CONSTITUTED BETWEEN VENDOR AND PURCHASER IN ACCORDANCE WITH PARAGRAPH 1 OF THE TERMS AND CONDITIONS ON PAGE 2 OF ORDER.
Signature         (Signed)  Purchaser
Signature         (Signed)  Vendor
Date:  8/3/93”
As a result of that order being signed Wakefield Trucks then commenced the process of confirming the details with Western Star and eventually obtaining the vehicle to South Australia where it was inspected and obtained a Road Train Inspection Certificate on 20 July 1993, and was delivered to Lach Transport on 23 July 1993, together with a new truck warranty.
Before the vehicle was delivered to Lach Transport, Wakefield Trucks had taken the vehicle to Cavill Power Products Pty Ltd who are the agents for Caterpillar Australia Limited where they recorded all of the guarantee information and the details of the vehicle for warranty purposes.
It also seems from the evidence that they made some analysis of the engine itself.
A great deal of evidence in this trial and one of the significant issues was the performance of the Caterpillar engine, complaints having been given from time to time that it was not performing to its fullest power capacity and that it had very unusual and great significant down times because of faults with the engine and necessary time for repairs.
Some of that evidence, because the defendants had joined Cavill Power as a third party related to the failure of Cavill Power to correct any faults in the initial delivery of the vehicle or from other matters from time to time.
At the end of the trial, during addresses, the plaintiff withdrew all claims related to those matters and the trial has continued therefore, only on their complaint as to the efficiency of the new Western Star as to its fuel use.
Lach Transport Pty Ltd employed Trevor Clark, an accountant, to prepare an analysis of their costs incurred in the use of the Western Star truck and comparing it to the use of an alternative Scania truck.
An order was made substituting the figures referred to in the Clark report to those included in the pleadings.

Mr Clark’s report is dated 16 February 1999 and was updated with different calculations on 28 April 2000.
At the time of purchasing the Western Star they traded-in the vehicle referred to for $43,000. At the time they had hoped to trade-in their other road train but they could not get sufficient price for it so they sold LT8 on 9 September 1993 for $65,000.
The Western Star truck was sold on 14 February 1997 for the sum of $104,000. The issue now to be determined as appears from the more explicit statement of claim:
“…
4..... Between in or about December 1992 or February 1993 Lach Transport by its Director, John Lach entered into discussions with Wakefield Trucks with a view to purchase a new truck for use in its business.
5.Between in or about December 1992 and February 1993 Wakefield Trucks made certain representations, inter alia, about the characteristics and performance of a Caterpillar model 3406C engine and Western Star Prime Mover.”
…

Particulars
…
5.2... John Lach asked Mr Umpherston to provide information, in writing, about what fuel economy, reliability, operating costs and savings would be achieved with the Caterpillar model 3406C engine and Western Star Prime Mover compared with trucks then owned and operated by Lach Transport.
5.3A sales representative of Wakefield Trucks, Lester Gare attended Lach Transport’s depot at 230 Hayman Road, Two Wells and examined fuel consumption records of Lach Transport’s trucks and was advised by John Lach details of trip distances travelled and gross vehicle weights and configurations to enable the information to be prepared in writing.
6...... Wakefield Trucks provided a letter to Lach Transport dated the 11th February 1993 supra.
…
7...... By virtue of the matters pleaded in paragraph 6 hereof, Wakefield Trucks impliedly represented to Lach Transport that the Western Star Truck fitted with a Caterpillar model 3406C engine proposed to be supplied to Lach Transport would consume between 4.5 and 4.8 miles per gallon whilst being loaded on trips to Perth and return and that Lach Transport would save $564.00 per trip or $2,445.00 per month in fuel savings compared with the trucks then being operated by Lach Transport.
…
13.... Lach Transport was induced to purchase the Western Star Truck fitted with the Caterpillar model 3406C Engine by the representations pleaded in paragraphs 5 - 11 inclusive hereof (hereinafter collectively referred to as “the representations”).
…
15.... The representations set out in paragraphs 5,6 and 7 hereof were false in that the Western Start (sic) truck:
…
15.2has not returned and continues not to return between 4.5 and 4.8 miles per gallon whilst engaged in Lach Transport’s normal operating conditions whilst loaded.

Particulars
From purchase in July 1993 to date, the Western Star truck has averaged a return of approximately 3.4 to 3.8 miles per gallon, whilst loaded.
…
22.In making the representations, Wakefield Trucks engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions contained in the Trades Practices Act 1974 (Cth) and/or the Fair Trading Act 1987 (SA).
…
23.1In order to induce Lach Transport to acquire the Western Star truck fitter with a Caterpillar model 3406C engine;
23.2by Wakefield Trucks without any belief as to their truthfulness and/or neither knowing or caring whether the same were true or not.

24.Acting on the faith and truth of the representations and by reason of the same, Lach Transport was induced to acquire the Western Star truck fitted with the Caterpillar model 3406C engine and in order to do so entered into a Commercial Hire Purchase Agreement with Household Financial Services Limited.

Particulars
24.1Lach Transport entered into a written agreement with Household Financial Services expressed to commence on 23 July 1993.
24.2The principal sum advanced under the agreement was $199,600.
24.3The total amount payable under the agreement over 5 years was $259,006.
24.4This represents an annual interest rate of approximately 6% per annum.

25.Mr Umpherston is a person who:
25.5.1Aided, abetted, counselled and procured the contravention of;
25.5.2induced contravention of; or
25.5.3Has been directly and knowingly concerned in and a party to the contravention of;
Section 52 of the Trade Practices Act by Wakefield Trucks by virtue of the matters pleaded in paragraphs 5 to 11 inclusive hereof.

26.Mr Umpherston and Wakefield Trucks by the action of its agents, Mr Umpherston and Lester Gare made the representations negligently in that no, or no sufficient, efforts were made by them or either of them to verify the accuracy of the information when, in the premises, they had a duty to do so. In the event that Mr Umpherston and Lester Gare had made diligent enquiry into the figures and values they provided to Lach Transport, the inaccuracies of the information supplied to Lach Transport would have been discovered prior to representing the facts and figures as being that which is pleaded in paragraph 5 to 11 inclusive hereof.
27.Mr Umpherston was a person acting for and on behalf of Wakefield Trucks and was a person who received direct or indirect consideration and material advantage as a result of the formation of the contract referred to in paragraph 12 hereof within the meaning of Section 7 of the Misrepresentation Act 1971 (SA) by virtue of his position as Director and shareholder of Wakefield Trucks.
28.In the premises, Lach Transport was induced to enter into the contract referred to in paragraph 12 hereof in circumstances falling within Section 7 of the Misrepresentation Act 1971 (SA).
29.By reason of the negligent representations, the contravention of Section 52 of the Trade Practices Act and Section 7 of the Misrepresentation Act, Lach Transport has suffered loss and damage.”

“Gould and Another v Vaggelas and Others (1984-85) 157 CLR 215 @ 220
It is well established that an action of deceit where the plaintiff has been induced by the fraudulent misrepresentation of the defendant to enter into a contract of purchase, the measure of damages usually applicable is the difference between the real value of the property at the time of the purchase and what the plaintiff paid for it: Holmes v Jones; Potts v Miller; Toteff v Antonas; Foster v Public Trustee; Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd. Events that happen after the time of the purchase may throw light on the real value of the property at that time; Potts v Miller. Where the property has depreciated in value after the purchase, and the depreciation was due to some cause inherent in the property itself, the depreciation must be considered in determining the real value of the property at the relevant time, but where the cause of the depreciation was “independent”, “extrinsic”, “supervening” or “accidental”, the additional loss is not the consequence of the inducement and it should not be taken into account in arriving at the value of the property at the time of the purchase: Potts v Miller.
The usual rule is, however, only a special application of the general principle that “In an action of deceit a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentations made by the defendant”: Toteff v Antonas. In other words, the general principle is that the plaintiff is to be put, so far as possible, in the position he would have been in if he had not acted on the fraudulent inducement: Holmes v Jones;; see also Canavan v Wright; Doyle v Olby (Ironmongers) Ltd; and South Australia v Johnson. In McAllister v Richmond Brewing Co (NSW) Pty Ltd, Jordan CJ suggested that this general principle is subject to a rule (which he called a rule of practice) which requires the usual measure of damages to which I have already referred to be applied in all but exceptional circumstances. He said:
A rule of practice is, however, now well established that where a person complains that he has been induced by deceit to buy something and pay more for it than it was worth, the amount of damages which he is entitled to recover is restricted, prima facie at any rate, to the amount by which the price which he has paid exceeds the true value of the thing bought at the time when he bought it: Potts v Miller. The rule is well settled, and exceptional circumstances are necessary to justify an award of anything more by reference to the general principle, but such circumstances may occur.
@ 224 line 1:
“The defendant is bound to make reparation for all the actual damages directly flowing from the fraudulent inducement ... All such damages can be recovered: and it does not lie in the mouth of the fraudulent person to say that they would not reasonably have been foreseen.” In the same case Winn L.J. said that the damage “must have flowed directly from the fraud”; he did not say that the damages must be foreseeable but the example which he gave at p169 suggests that he was speaking of damage which was foreseeable. In a recent case in which damages for fraudulent misrepresentation were assessed, Archer v Brown, Peter Pain J. appears to have thought that the foreseeability test had to be applied. It is unnecessary for present purposes to consider whether damages for deceit can be recovered even if they were not reasonably foreseeable, and I would leave open that important question. In the present case, any damage that directly flowed from the misrepresentations of Vaggelas was foreseeable.”
“Sutton v A J Thompson Pty Ltd (in liq) and Others (1987) 73 ALR 233 @ 240
Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well a the experienced, and the gullible as well as the astute, the section must, in my opinion, be regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will of course depend on all the circumstances.”

In the schedules to Mr Clark’s report (ex P2) he shows the losses incurred by Lach Transport by the Western Star not fulfilling the fuel capacity given in the letter of 11 February, but returning the actual miles per gallon as listed in the schedules and comparing them with the fuel that would have been required if it had been returning a fuel consumption rate of 4.5 miles per gallon which is, of course, on the low side of that referred to in the letter being between 4.5 and 4.8 nevertheless only used the comparable fuel rate of their Scania at 4.45 miles per gallon.
“Collings Construction Co Pty Ltd and Another v Australian Competition and Consumer Commission Venture Industries Pty Ltd and Others v Australian Competition and Consumer Commission (1997-1998) 43 NSWLR 131 @ 145
.... measure of damages to the contraventions found to have taken place. The courts are not bound to make definitive choice between the two measures so that one applies to all contraventions to the exclusion of the other.”
@ 147:
“Thus, whilst s82 is concerned with the recovery of an amount representing the loss or damage, s87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered.”
@ 148:
“In my opinion ‘loss or damage’ in s87(1) means no more than the disadvantage which is suffered by a person as the result of the act or default of another (Halsbury’s Laws of England, 4th ed, vol 12, par 1102) in the circumstances provided for in the section.
The phrase ‘loss or damage’ in s87(1) does not involve any concept of quantum or assessment of damages: see Barneys Blu-Crete Pty Ltd v Australian Workers Union (1979) 43 FLR 463 at 473 where Northrop J expressed a similar view as to the use of the same phrase in s45D(1)(a) of the Act. This is to be contrasted with the context of the phrase in s82 where it is ‘the amount of the loss or damage’ which is recoverable by action. For the purpose of s82 it is the quantum or assessment of the loss or damage suffered in monetary terms which must be demonstrated. The rules as to the assessment of damages or the measure of damages in an action for deceit are relevant to the question of loss or damage under s82. However, those rules are not relevant to the meaning of the phrase in s87(1).”
Wardley Australia Limited and Another v The State of Western Australia (1992) 175 CLR 514 @ 525
“By virtue of s.82(2) of the Act, the period of limitation begins to run at the time when the cause of action under s.82(1) accrues. As loss or damage is the gist of the statutory cause of action for which s.82(1) provides (49), the cause of action does not accrue until actual loss or damage is sustained. The statutory cause of action arises when the plaintiff suffers loss or damage “by” contravening conduct of another person. “By” is a curious word to use. One might have expected “by means of”, “by reason of”, “in consequence of” or “as a result of”. But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common‑sense concept of causation recently discussed by this court in March v Stramare (E. & M.H.) Pty. Ltd., except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.
In the context of the Act, the concept of loss or damage, like the concept of causation, must be applied in a wide variety of situations because the contraventions of Pts IV and V which give rise to causes of action under s.82(1) are diverse. Here we are concerned with contraventions of s.52(1) in the form of misleading conduct constituted by misrepresentations. In this situation, as at common law, acts done by the representee in reliance upon the misrepresentation constitute a sufficient connexion to satisfy the concept of causation. And, if those acts result in economic loss, that is, loss other than physical injury to person or property, that economic loss will ordinarily be recoverable under s.82(1). In the context of the ....”
Having regard to those schedules, it shows that the total of fuel losses by only accomplishing the rates referred to rather than the 4.5 (4.45) miles per gallon is $89,806.62.
“Global Sportsman Pty Ltd v Mirror Newspaper Pty Ltd (1984) 2 FCR 82 @ 88
The non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor’s intention lacked any, or any adequate, foundation. Similarly, that a prediction proves inaccurate does not of itself establish that the maker of the prediction did not believe that it would eventuate or that the belief lacked any, or any adequate, foundation. Likewise, the incorrectness of an opinion (assuming that can be established) does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any, or any adequate, foundation.
The applicants argued that, nevertheless, the statement of an incorrect opinion is misleading or deceptive or likely to mislead or deceive merely because it misinforms or is likely to misinform. An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for the opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.
To this point, attention has been concentrated upon the making of statements, whether of fact or opinion. Whether a statement is a statement of past or present fact, a promise, a prediction, or an expression of opinion, the making of it constitutes conduct which is misleading or deceptive or likely to mislead or deceive if the statement contains or conveys a misrepresentation. As we said earlier, the arguments for each side were related to the publication of information as “news”. There has been little .....”
I distinguish this case from this trial.
The plaintiff Lach Transport Pty Ltd claims that if a cheaper transport system had been bought i.e. a Scania which was operated by them from 23 October 1996 to 29 June 1998 and returned an average mile per gallon of 4.45, that is the figure that they have relied on, has not been met by the Western Star and they there continue their proposition based on the authorities pursuant to section 52 and 82 of the Trade Practices Act, that it is appropriate for them to compare a different system that could have been bought which would have been more economical on fuel, would have cost less and therefore claim the difference in costs between the two and the interest paid on the greater amount rather than the lesser.
The International Transtar with a 425B Caterpillar motor was probably the best performing truck of Lach Transport at that time.
I accept that when first negotiating for a new truck it was a 425B that was discussed.
I find that the first quotation was for a 425B, at the same price as that eventually quoted for the 3406C.
In this trial the only issue now in dispute is fuel economy.
I find that the vehicle the Lach’s would have bought was the 425B, but did not persist as were told the 3406C would do better.
Both vehicles were quoted at the same price that then is not an appropriate means to assess damages.
If the factors of engine capacity, repairs etc were still in issue it may be necessary to consider other proposals.
I find that on the facts of this particular case it is not appropriate to assess damages as an assessment of an alternative transport system i.e. the Scania, as has been argued by the plaintiff.
“Marks (in a representative capacity) and Others v GIO Australia Holdings Ltd and Ors (1998) ALR 158 at p 333, Sykes & Ors v Reserve Bank of Australia (1998) ALR 158 at p 710 and Radferry Pty Ltd & Anor v Starborne Holdings Pty Ltd & Ors [1998] 1689 FCA (18 December 1998)”
The defendant company Wakefields relying on the pleadings and an analysis of them, have attempted to show that the Western Star in isolation made a profit for Lach Transport and therefore suffered no loss and therefore they have no claim under section 52 of the Trade Practices Act.
The plaintiffs deny their analysis and have proceeded to analyse the matter having regard to the whole of the fleet as showing its costs and losses by reference to the company’s accounts which have all been tendered in evidence and an analysis of those accounts.
The plaintiff argues that analysis shows that the Western Star no more than broke even and made no profit, therefore it they can satisfy me that they relied on the letter of 11 February for the purchase of the Western Star, then they say they are entitled to damages in the number of ways which I have suggested.

100 The defendant joined, in these proceedings, Caterpillar of Australia Limited as third party and Cavill Power Products Pty Ltd trading as Cav Power as a second third party.

101 I have mentioned why Cav Power was joined on the question of the adequacy of the motor, repairs and power, and the plaintiff has not continued with those proceedings, therefore there is now no issue for Cav Power in this action.

102 An application has been made by Wakefields to be indemnified by Lach Transport for any costs which Cavill Power will have against the defendant.

103 Caterpillar of Australia was joined, see the letter of 11 February, when at the top it refers that they obtained information from Mr Holliday. Mr Holliday is an employee of Caterpillar of Australia.

104 The letter of 11 February 1993 commences with the words “Following our recent discussions, and having also consulted John Holliday from the local branch of Caterpillar Australia, we have compiled the following for your consideration.

105 Wakefield Trucks Pty Ltd assert that if the statement in relation to paragraph 2 and 3 are misleading, in breach of the Trade Practices Act, then they are no more than a conduit of carrying forward the information given to them by Mr Holliday.

“The Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 @ 530
To return to the principle stated in Yorke v Lucas, supra, the reference to express or implicit disclaimer of belief in the truth or falsity of the statement made was emphasised by Mr Maston, counsel for the respondent. He argued that there was no evidence of any disclaimer. It is true that Mr Flannery did not claim to have warned Mr Plummer of the possibility that the information Mr Kehoe had given was untrue, or to have suggested that he (Flannery) had any doubts about its accuracy.
The reference in Yorke v Lucas, ubi supra, to an express or implied disclaimer of belief in an instruction conveyed by an agent does not involve that an agent who does believe his client, and makes that fact apparent, may not at the same time impliedly disclaim personal responsibility for what he conveys. In Yorke v Lucas itself, the first instance decision (Yorke v Ross Lucas Pty Ltd (1982) 45 ALR 299) makes it quite clear the agent’s director, while stating the source of his information and that he had not verified it, did indicate on his company’s behalf an acceptance of the facts asserted, for he proceeded to make calculations, which he put to the purchaser, on the basis of those facts. Yet the passage referred to in the joint High Court judgment makes the observation that “the facts as found by the trial judge raise the question whether [the corporation which was the agent] was guilty of any contravention of s52.”
@ 531:
“It is true that Mr Flannery did not disclaim belief in the truth of what the owner had told him, but that did not in itself make his statement misleading. A statement of belief may not, depending on the circumstances, be misleading if what is stated truly is believed and does not imply any misleading fact. It does not appear to us to be right to conclude the matter against the appellant on the basis that Mr Plummer gave evidence that he took “as a fact” the information Mr Flannery had given him. If by that was meant that Mr Plummer assumed that Mr Flannery had more knowledge of the matter than he had placed before Mr Plummer, we think any such assumption was unjustified. For example, there was no reason to think that Mr Flannery was personally acquainted with Mr Kehoe, other than as the vendor of the paintings in question.”
“Cummings v Lewis & Ors (1993) 15 ATPR (Digest) 46-103 @ 53,454
A positive unqualified prediction by a corporation may be misleading conduct in trade or commerce if relevant circumstances show the need for some qualification to be attached to that statement or the possibility of its non‑fulfilment to be disclosed as a requirement of fair trading. The fact that the corporation believed or had reasonable grounds for belief that the prediction would be fulfilled, would not answer the question as to whether the conduct was misleading or deceptive conduct in trade or commerce. The misleading or deceptive conduct may be found in the failure to qualify the statement or disclose the risk of non‑fulfilment and the event of non‑fulfilment of a prediction or promise may be evidence that raises an influence that such a risk of non‑performance existed or that qualification of the positive statement, prediction or promise was required.”

106 I distinguish this case as I find there was no disclaimer either direct or implied from the conversations in respect of the letter of 11 February.

107 Having heard the evidence of Mr Holliday and Mr John Gare, I prefer the evidence of Mr Holliday to Mr Gare and find that Mr Holliday did no more than give him the fuel use, which Mr Holliday obtained from Mr Singleton in respect of his first delivered Western Star in the state but a B engine and not a C engine as is the relevant configuration of the Western Star purchased by Lach’s.

108 I find that the details provided in the letter of Wakefield Trucks is not as the information was given to Gare, but is used in a wholly different manner. It does not refer to the Singleton case and he uses these particular words: “The new Caterpillar 3406C 460 HP that we are quoting you in our new truck proposals is returning between 4.5 and 4.8 miles per gallon in actual fleets operating road trains as the same configuration, size and conditions as yours”.

109 I find that that statement bears no real relationship to the information that was given by Mr Holliday to Wakefield Trucks and Mr Gare. The letter gave the certain impression, and Mr Gare’s accepted impression, that there were actual fleets operating road trains with the new Caterpillar 3406C that was being purchased and would provide that sort of fuel consumption.

110 I find that Mr Gare was the least persuasive of all of the witnesses heard in this trial.

111 Mr John Lach acknowledged that Mr Halliday would have obtained information from Mr Singleton and the reference to that at the top of the letter suggests where that part of the information may have come from, but Mr Lach still believes that Halliday, who had, and could have had information, of many uses of the 3406C from other parts of Australia, or even overseas, and that Wakefield Trucks must have obtained much greater information or from their own resources to have put the details that are in paragraph 2 of that letter. I find that John Lach relied upon that proposal in paragraph 2 of the fuel consumption, that it influenced him in proceeding with its purchase and, of course, it enabled him to obtain finance, and if he had not been able to obtain finance, then there would have been no sale of the Western Star from Wakefield Trucks to Lach. This is contrary to what Mr Gare says, I accept that there would have been a benefit to Mr Gare, he was working on a commission, if the sale proceeded, contrary to his evidence that he had no interest because he believed the sale had already been accomplished, with one part of his evidence and acknowledges of course, that no sale could proceed until finance had been obtained.

112 I find that Mr Lach relied on that letter for the two purposes, his own to satisfy himself that the purchase of this new expensive vehicle would be advantageous to him and, two, which was probably the primary cause, to obtain finance for the Western Star with the Caterpillar motor which he was very keen and interested in, having had the experience of the 425B and being told that the new electronic version of the 3406C would perform better.

113 It is necessary to analyse the financial statements tendered by Lach Transport over the period which they owned the Western Star vehicle, to see how it fits into the jigsaw, with all of the other various transport rigs which Lach Transport bought and sold over the years, until they have eventually modernised their fleet by buying and selling over time.

114 It then becomes difficult to isolate the Western Star from its use amongst all of its trucks, which all carry the over-head and the costs of operating their interstate transport haulage business.

115 Section 52 of the Trade Practices Act reads as follows:

“(1).. A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2)Nothing in the succeeding provisions of this Division shall be taken as limiting by implication the generality of subsection (1).”

116 Section 82 of the Act reads as follows:

(1)... A person who suffers loss or damage by conduct of another person that was done in contravention a provision of Part IV, IVB or V or section 51AC may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
(2)An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action occurred.”

117 Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994 at 50,950 reads as follows:

“While there remain many areas of difficulty in the application of sec. 52 of the Act to the facts of a decided case there have been established a number of propositions, relevant to the determination of the present case, which are no longer in dispute:
1.     For conduct to be misleading or deceptive the conduct must convey in all the circumstances of the case a misrepresentation: Taco Bell at ATPR p. 43,752; A.L.R. p. 202. In the present case the misrepresentation on the part of the respondents is said to be that the financial product advertised and marketed by each of them is the product of the applicant or that there is some business relationship between the applicant and each of the respondents or that the applicant has endorsed the respective product of the respondents.
2.     There will however be no contravention of sec. 52(1) of the Act unless error or misconception results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible: Puxu per Gibbs D.J. at ATPR pp. 43,783-43,784; D.L.R. pp199-200 and per Mason J. at ATPR pp. 43,789-43,790; C.L.R. pp. 209-211; Global Sportsman Pty Ltd. V Mirror Newspapers Ltd (1984) ATPR 40-463 at p. 45,436; (1984) 55 A.L.R. 25 at p.34.
3.     Conduct will be likely to mislead or deceive if there is a “real or not remote chance or possibility” of misleading or deception regardless of whether it is less or more than 50%: Global Sportsman at ATPR p. 45,346; A.L.R. p 34. The question of whether conduct is misleading or deceptive or likely to mislead or deceive is an objective question which the Court must determine for itself. Hence evidence that persons in the relevant class have been misled will, although admissible, not be determinative. In some cases however such evidence will be very persuasive: Puxu per Gibbs C.J. at ATPR pp. 43, 782-43,783; C.L.R. pp. 198-199.
4.     Conduct of a corporation causing mere confusion or uncertainty in the minds of the public in the sense that they may be caused to wonder whether two products may have come from the same source is not necessarily coextensive with misleading or deceptive conduct: Puxu at ATPR pp.43,783-43,784 C.L.R. p 200; Bridge Stock Brokers v Bridges (1985) ATPR 40-502 at pp. 46,022-46,023; (1984) 57 A.L.R. 401 at p. 413 per Lockhart J. Since actual deception need not be shown the Court must consider whether a reasonably significant number of potential purchasers would be likely to be misled or deceived: Weitmann v Katies Ltd (1977) ATPR 40-041 at pp. 17,444-17,445; (1977) 29 F.L.R. 336 at p. 343. The test in passing off cases is usually expressed as being whether a “substantial number of persons likely to become purchasers … are liable to be deceived by the defendant’s use of the name. On the other hand it is not necessary to show that all, or substantially all, persons in the market associate the name with the plaintiff’s goods, if this can be shown of a substantial proportion of persons who are probably purchasers of the goods of the kind in question” (per Wilberforce J., as he then was, in Norman Kark Publications Ltd. v Odhams Press Ltd. (1962) R.P.C. 163 at p. 168 and see Saville Perfumery v June Perfect Ltd. (1941) 58 R.P.C. 147 at pp. 175-176; 10th Cantanae pty Ltd v Shoshana Pty Ltd (1988) ATPR 40-833 atp. 48,995; (1987) 79 A.L.R. 299 at p. 315 per Gummow J.).
5.     In a case such as the present the applicant must establish that it has acquired the relevant reputation in the name, that is to say that the name had become distinctive of the applicant’s business in a particular country or geographical area: Sheraton Corporation of America v Sheraton Motels Ltd (1964) R.P.C. 202; BM Auto Sales Pty Ltd v Budget Rent A Car system Pty Ltd (1976) 12 A.L.R. 363. However at least in some circumstances very slight activities may be found to be sufficient to establish that a name has become distinctive of a person’s business in a particular country: Miki Shoko Co. Ltd. & Anor v. Merv Brown Pty Ltd (1988) ATPR 40-858.
6.     Section 52 is not confined to conduct which is intended to mislead or deceive: Puxu per Gibbs C.J. at ATPR p. 43782; C.L.R. p 197 and a corporation which ats honestly and reasonably may none the less engage in conduct that is likely to mislead or deceive: Yorke & Anor v Lucas (1985) ATPR 40-622 at p. 47,054; (1985) 61 A.L.R. 307 at p.309.”

118 The only claim which the plaintiff now pursues is to cover their loss because the Western Star truck used more fuel than had been assured to them by earlier conversations and as confirmed in the letter of the 11 February.

119 It is necessary to consider the two different arguments put for determining the effectiveness or otherwise of the Western Star truck within the Lach Transport fleet.

120 Counsel for the defendant relying principally on the matters pleaded has shown that not only did the Western Star not make a loss but it made a considerable profit. He said that the transaction under which the plaintiffs possessed the truck for 43 months was the best decision that the plaintiff company had ever made and that it had enabled them to sell two old trucks for a total of $110,000. That amount was made up of $43,000 which was obtained on the trade-in and the subsequent sale of an older truck. I note that it had been the original intention to trade in the older truck but they could not receive sufficient amount as a trade-in and therefore they traded in the one for $43,000 and sold the other one at a later time.

121 He contended that by purchasing the Western Star they had been able to shed themselves of two old, tired trucks.

122 I find that that part of the submission is not consistent with the buying and selling of road transport trucks which continued with Lach Transport over a number of years to update their transport equipment.

123 The defendant’s submissions also were to the effect that “from day one of its operation it generated savings of around $4,000 per month compared to the costs of holding the old Kenworth and not only that it also generated a net operating profit of another $4,000 per month, that is a net of all operating expenses and after payment of the monthly interest payment. So in other words from the time that the plaintiff took possession of the truck it made a cash flow profit per month from day one of $8,000”.

124 His submissions then went on to deal with the profits which the company had made from time to time after they had purchased the Western Star.

125 It seems to me that most of the submissions rely on the pleadings. Pleadings must show fairly what the issues are, but in themselves are not evidence of what may be adduced during the trial see Cummings v Lewis & Ors (1993) 15 ATPR (Digest) 46-103.

126 The defendant also referred to the depreciation schedules and used these in his argument that there had been no loss and submitting that, as a matter of law, that the plaintiffs had no cause of action.

127 The defendant also says there are inconsistencies with the argument of the plaintiff concerning the letter of 11 February 1993, when it, at the end of the trial, persists with the matter of the fuel loss but does not continue with the other losses, which it had strenuously argued for and is contained in the same letter but now discontinues.

128 Counsel for the plaintiff in reply relied on the evidence contained in the books produced by the plaintiff including their accounts over a number of years, and an analysis of those which was tendered in support of their address, and also an analysis of the sale and purchase of various trucks by the plaintiff company during the period 1994 to 1997.

129 The effect of his submissions based on those matters and the evidence as a whole, that it is a fallacy to try and extract the operation of the Western Star as one item from the whole of the operation of Western Star Interstate Transport trucks and that it is a fallacy to rely on the pleadings and to try and construct an analysis as was done by the defendant in his submissions.

130 The plaintiff’s submissions in reply rely on the evidence produced and their analysis of that evidence, and I find that the documents which they produced in aid of their address, being extracts and an analysis of that evidence, are a fair and proper analysis.

131 Having considered the whole of the evidence, in particular the records produced, the accountancy record, particularly the profit and loss accounts and the depreciation schedules and the evidence of the purchase and sale of various prime movers by Lach transport over the years, I am satisfied that the analysis of the Western Star within the whole of the company’s use of that vehicle is properly explained in the record as a whole as submitted by the plaintiff and I find that it is a fallacy to try and extract the use of the Western Star as had been argued by the defendant in the manner in which they proposed.

132 It is a clear that the operation of the Western Star in the context in which I find it is proper to regard it, it did no more than break even in conjunction with the other trucks being operated.

133 I am therefore satisfied that Lach Transport suffered a loss as the Western Star truck used considerably more fuel than had been warranted by the letter of 11 February, and earlier conversations.

134 In accordance with the records of Trevor Clark as deposed to in exhibit P2 and schedules 1.1 to 1.6 inclusive, it shows the cost of the extra fuel used in the Western Star truck compared to a use of 4.45 miles per gallon.

135 The letter of 11 February, of course, refers to figures of 4.5 to 4.8, therefore 4.45 is slightly less than the lesser of those two amounts. The plaintiff has used the 4.45 as what it had obtained from the use of a Scania prime mover which it had used on comparable projects.

136 There have been no other figures given to me on loss based on a 4.5 mile per gallon use. Therefore, I will use the figure as provided in exhibit P2, that is the report of Trevor Clark.

137 By the use of those schedules it shows that the total fuel loss was $89,806.62. The plaintiff only claims that as one arm of its loss and says that its damage is assessed by comparing the cost of an alternative vehicle which would have produced 4.45 miles per gallon, and in fact did, that is the Scania unit which they used for a considerable period and that there loss is the figure of $89,806.62 plus the difference in price between the Scania and the Western Star and then all of those amounts carrying with them interest payments at the appropriate rates.

138 For this the plaintiff relies on comments in Marks & Ors v GIO Australia Holdings Ltd & Ors (1998) 158 ALR page 333.

139 I am not satisfied that the alternative method of assessing damages, that is by purchasing, at the relevant time, an alternative vehicle and using the evidence of what it produced to arrive at a figure. I am satisfied that the only loss is the total of fuel losses referred to in the summary of losses on page 6 in paragraph 5 of the report of Trevor Clark exhibit P2 which is $89,806.62 together with whatever interest is appropriate to apply to that amount.

140 A great deal of evidence given in relation to Stemco reports which was a measuring machine installed on the Western Star by Caterpillar to gauge the fuel used on particular trips.

141 Evidence was also given that there are a number of variables in effecting the fuel use by a rig, whether it is travelling with a single van or a double van and also can be varied by the manner of driving by the driver by head winds and other various circumstances as described.

142 That evidence does not affect the claim by the plaintiff as the statement in their letter of 11 February refers to 4.5 to 4.8, which in the custom of the entry would be regarded as the averages taking into account all the variables, and of course the evidence of Lach Transport is that that has been so with the use of their Scania that it has kept up to the average of the expected use and therefore seems that the excessive use of fuel by the Western Star is not only answered by the variations in manners of driving in wind speeds and all of the other variations, but the 4.5 is what could have been expected taking into account all of the variables.

143 I therefore find that the Western Star unit did not conform with the information given to the purchasers and the information was a deceit in the terms of both the Trade Practices Act and the Misrepresentation Act.

144 There is a schedule in exhibit P2 of the commercial overdraft interest rates at the relevant time but I find that they are only a guide because the excessive amount paid for fuel was progressive over the 43 months and had not accumulated all on the total amount on one event. I therefore must do the best I can having regard to those figures and to assess the interest up to 18 February 1997. I fix an amount in lieu of interest for that period at $4,500. Proceedings in this matter commenced on 4 June 1996, and having already assessed a sum to 28 February 1997, I therefore assess interest from that date until the date of judgment in the amount of $24,000. Therefore the judgment sum will be $118,306.62.

145 There are a number of ancillary matters which it is necessary for me to make findings:

146 1. As to mitigation - there was evidence that there was an offer to Lach Transport to purchase an upgraded engine at a reduced price.

147 From the evidence concerning that matter, it is probable that with the inclusion of that engine the plaintiff may have had less time down for repairs and maintenance.

148 There is no evidence that if they had spent their money and installed that engine that it would have improved the fuel consumption of their vehicle.

149 2. I find that any statements made by Mr Umpherston to John Lach are all in his capacity of Wakefield Trucks. I find there is no evidence to implicate Mr Umpherston himself as distinct from Wakefield Trucks.

150 3. By finding that Mr Gare did not relate only the information he received from Mr Halliday, and I accept the evidence of Mr Halliday, therefore there is no evidence to implicate Caterpillar Australia.

COSTS

151 I will hear from the parties of any costs flowing from the above findings and also the costs flowing from the plaintiff discontinuing its claim for repairs and horsepower matters at the conclusion of the trial, and consequently, what part of the trial related to that issue and also the request by the defendant that the plaintiff indemnify them against any costs flowing from Cavill Power.

Model :	WESTERN STAR 4864 FX. 90.00 TONNE GROSS COMBINATION
ENGINE :	CATERPILLAR 3406c. PEEC 460 HP / 1650 1B/FT TORQUE HORTON FAN CLUTCH / JACOBS BRAKE LOW WATER ALARM / CRUISE CONTROL DUAL EXTERNAL AIR CLEANERS SINGLE CHROME EXHAUST 4.2 METRES HIGH*
DRIVELINE :	SPICER WIN PLATE CLUTCH H/D SPICER 1810 SERIES DRIVESHAFTS EATON RTLO16618 - 18 SPEED OVERDRIVE TRANSMISSION OIL COOLER
REAR AXLES :	ROCKWELL SSHD. 90.0 TONNE RATED ROCKWELL AC6s. 6 ROD SUPENSION
CHASSIS :	HI TENSILE SINGLE RAIL - 208” WHEELBASE TAPERED END OF FRAME/ H/D CROSS MEMBERS AIR MOISTURE EJECTOR / FUEL-WATER SEPERATOR AIR LINES & TOW HITCH AT END OF FRAME IN CHASSIS MOUNTED BATTERY BOX HAND CONTROL VALUE & COILED AIR LINES 4 X 100 GALLON ALUMINIUM FUEL TANKS
FRONT SUSPENSION :	ROCKWELL FG941 FRONT AXLE - 6.6 TONNE CAPACITY 62.5” TAPERED LEAF SPRINGS H/D GABRIEL SHOCK ABSORBERS
SLEEPER :	WESTERN STAR 42” HI-RISE SLEEPER STUDDED SUPER APPEARANCE TRIM DOUBLE SLEEPER BUNKS
TYRES & RIMS :	GOODYEAR 11R22.5 TUBELESS RADIALS TRACTION PATTERN ON DRIVE 8.25” STEEL TUBELESS RIMS - 11 OFF
PAINT :	CAB & SLEEPER - ANY TWO COLOURS CHASSIS - ANY SINGLE COLOUR SIGNWRITING INCLUDED
CABIN :	AIR BAG CAB SUSPENSION SYSTEM STUDDED SUPER APPEARANCE TRIM ADJUSTABLE STEERING COLUMN BOSTRUM 915 AIR RIDE DRIVER’S SEAT - FIXED PASSENTER’S OVERHEAD CONSOLE WITH RADIO CASSETTE & CB AIR CONDITIONING & TINTED WINDOWS DUAL ROOF MOUNTED AIR HORNS & CLEARANCE LIGHTS
MISC. EQUIPMENT:	RADIATOR BUG SCREEN & BUG DEFLECTOR WINDSCREEN STONEGUARD FULL PLASTIC DRIVEGUARDS TO REAR WHEELS ALUMINIUM BULL BAR & 100W BULL LIGHTS HOLLAND QUICK RELEASE TURNTABLE CHROME HUB CAPS & NUT COVERS
DELIVERY :	APPROX. 10 - 12 WEEKS
PRICE :	INCLUDING FREIGHT & DLEIVERY TO ADELAIDE ….. $224,600
TRADE IN :	1979 W MODEL KENWORTH AS APPRAISED …. $ 43,000
WARRANTY :	PLEASE REFER TO ATTACHED WARRANTY SCHEDULES FOR WESTERN STAR AND CATERPILLAR
OPTIONS	AT ADDITIONAL COST:- WESTERN STAR MODEL 4964 LONG BONNET $1,800 DUAL CHROME EXHAUST $1,150

12 mths to June 1992 $		12 mths to June 1991 $
Contracting Income	1,934,576	1,422,135
Gross Profit	604,049	323,859
Operating Profit for tax purposes	11,721	(29,491)
after deducting - depreciation	146,301	95,058
amortisation	33,194	57,059
Adjusted Operating Profit	191,216	122,626

[2000] SADC 81

30 June 2000