Lawson, K.J. v Noyes Brothers Pty Ltd

I N THC FEDERAL C O U R T OF

AUSTRALIA

)

QUEENSLAND

D I S T R I C T

R E G I S T R Y

)

QLD.

G110

o f

1 9 8 2

GENERAL	D I V I S I O N	)
BETWEEN:

KENNETH JOHN LAWSON and

BETTY LOUISE LAWSON

F i r s t

AND :

K.J.L.

T R A N S P O R T

PTY.LTD.

S e c o n d

A p p l l c a n t

AND:

NOYES

BROTHERS

P T Y .

L IMITED

R e s p o n d e n t

AND:

N O Y E S

BROTHERS

PTY.LIMITED

. C r o s s

C l a i m a n t

AND :

VOLVO AUSTRALIA

PTY.LTD.

Cross

R e s p o n d e n t

C O R R I G E N D A

Amendment t o

t h e

R e a s o n s

f o r Judgment

o f

S p e n d e r

delivered

J u l y

1 9 8 5 :

P a g e

1 4

llne 11,

s u b s t i t u t e

" s . 5 3 ( a a ) "

f o r

" 5 t ( a a ) " .

?$S zn

. M .

J a m l e s o n

,7'

A s s o c i a t e

t o

M r .

J u s t l c e

S p e n d e r

D a t e :

1 0

S e p t e m b e r

1 9 8 5

,,-c

3og

TRADE PRACTICES - misleading or deceptive conduct - false

representation - when expression of opinion does not contain

convey a misrepresentation - whether concluded contract	of
purchase - whether a representation or contractual term	as to

date of delivery - Trade Practices

Act 1974, ss.52, 53, 82.

Trade Practices Act

1974, ss.52, 53, 82.

-1

?> I.

Global Sportsman Pty.Ltd.	& Anor. v. Mirror Newspapers Limited	&
Anor. (1984) 55 A.L.R. 25

K.J. LAWSON & ORS. V. NOYES BROTHERS PTY.LIMITED & 3RS.

QLD. G110 of 1982

CORAM:

Spender J.

5 Julv 1985

Brisbane

IN THE FEDERAL COURT OF AUSTRALIA

)

9UEENSLAND DISTRICT REGISTRY

)	QLD G110 of 1982

GENERAL DIVISION

)

BETWEEN:

KENNETH JOHN LAWSON and

BETTY LOUISE LAWSON

First Applicants

AND :

K.J.L. TRANSPORT PTY.LTD.

Second Applicant

AND:

NOYES BROTHERS PTY. LIMITED

Respondent

AND:

NOYES BROTHERS PTY. LIMITD

Cross Claimant

AND:

VOLVO AUSTRALIA PTY.LTD.

Cross Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	Spender J.
DATE OF ORDER :	5 July 1985
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

The application be dismissed,	with costs to be taxed
if not agreed.

Note:

Settlement and entry

of orders is dealt with in Order 36

of the Federal Court Rules

BETWEEN

ICENMETH J O H N LP=

and

BETTY LOUISE

LAMSON

First Applicants

AND :

K. J. L. TRF.bISFORT FTP. LTD

Second Applicant

AND :

NOYES EROTHERS PTY. LIMITED

Respondent

AND :

NOYES BFOTHERS PTY. LIM-

Cross Claimant,

AND :

VOLVO ATJSTRALIA PTY . LTD.

Cross Respondent

SPENDER J.

5 JULY 1985

In this matter,

the applicants, who

are transport

Operators, claim under

5 .82 of the Trade Fcact,lkss Act

1974 ( “the

Act”) t o recover loss or damage allegedly suffered

by conduct of

2 .

the responaent 111 contraventlon of ss.52 and 53(a)(aa) and (c) of

the Act. These provide:-

"52. (1) h corporation

shall not,, in

trade

commerce, engage In

conduct that j S misleadllnq

or deceptlve or is	likely to m~.slead	or
deceive.
...

" 5 3 . A corporation shall

not, In trade or commerce,

in connexlon wlth

the supply or posslble supply

of goods or servlces or in connexlon wlth the

promotlon by any means of the supply or use of

goods or services -

(a) falsely

represent

that

qoods'are ~f z

particular standard, quality, grade, composltlon, style or model or have had a particular history or partlcular prevlous use ;

(aa) falsely represent that services are

of a

particular standard, quality	or grade;
...

( c )

represent

hat

goods

services

have

sponsorship, approval,

performance

characteristlcs, accessories,

uses

benefits they	do not have;
...

In April 1976, Mr. & Mrs. Lawson commenced

subcontracting transport operations for Wards Express Road

Service known

a5 "The Overnighters", taking goods from Brisbane

t o Townsville and return, Brisbane

t o Mackay and return and

occasionally short trips from Drlsbane	to Rockhampton or
Bundaberg as required.

The first appllcants,

Mr. and Mrs. Lawson, caused the

second applicant,

K . J . L .

Transport Pty.Ltd. to be incorporated on

27 August 1980.

The second applicant also carried on business

3 .

a transport operator and leased trucks

to the flrst applicants.

Mr. and Mrs. Lawson are the directors	of K.J.L. Transport
Pty.Ltd.

The respondent is a dealer

111 "Volvo" trucks. It is a

trading corporation and Its relevant conduct

was in trade or

commerce. In its Defence, it says that from time

to time it has

repaired defects in Volvo trucks upon the authorisation

of Volvo

Australia Pty.Ltd. ("Vo1vo"i given In performance of a Volvo manufacturer's warranty.

Proceedings as originally instituted were concerned

primarily with an action for damages arising from extensive rust

in the cabins

of four trucks. A cross-claim was instituted

between the respondent and Volvo and

settlement of that part of

the action

was ultimately reached

which entailed, amongst other

things, the replacing

of the cabs on

two of the trucks the

subject of the present action. The cross-claim agalnst Volvo

was

subsequently discontinued. This aspect of the dispute is

important jn a resolution of the issues with which I am

concerned.

The applicants contlnue their clalms against the

respondent, Noyes

Bros. Pty.Ltd., on three bases which

for

present purposes may be brjeily summarised

as follows:

(i) In revpect of vehicle reg. no.135-NRR ("135"), a claim

for damages based on

a loss of pro€lts'by reason

representations, said to amount to

a contravention of

5 5 . 5 2

and 53 (ad)

and (c) of the Act, to the eficct that

the respondent could effectively and expeditiously

effect repair ?.nd rectification work on the rust

defects; alternaclvely, damages €or breach of express - -

or, alternatively, implied terms that the repair and

rectification work would be carried out effectively and

expeditiously. The claim for loss of profits amcunts to

$7,340.56 calculated by reference to two periods

uring

which the truck was off the road and not woiking, the

first from 13 July 1981 to

3 August 1981'and the second

from 13 Auqust to 20 August 1981.

(ii) A similar claim in relation to another vehicle 443-NRR ("443") for danages based on a loss of proiits by reason

of the respondent's misrepresentations or alternatlvely

for breach of contract. Damages are said to amount to

$8739.26 in respect of two periods; 16 July 1981

to 29

July 1981 and

3 August 1981 to 17 August 1981.

(iii) A quite separate claim by the second applicant in

relatjon to a vehicle reg.no.677-OBG ("677") for loss of profits by reasop of a representation said to constitute a contraventlon of ss.52 and 53(a) ar,d (c) of the Act to

the effect that the pantechnjcon was in a condition such

that it could be delivered before March 1981.

The

vehicle was not delivered until

28 June 1981, as a

result of which it is alleged 17 weeks work

was lost

with a resultant claim for damages for'$23,190.20.

alternative claim

is also framed for breach of contract,

5 .

alleging that it was

an expt-ess term of

an oral

aqreement between the applicant and the respondent that

the respondent would sell and dellver

an F10 27 cabin

and chassis before the beginning

of March 1981. It is

alleged it falled to

do so until 28 June 1904 resulting

in loss to the second applicant.

From the commencement of the business, the applicants have used Volvo trucks, the first one being ordered in 1976

directly from Volvo.

Subsequently, all trucks have been ordered

through the respondent whose premises are	at Wacol, where they
adjoin the Volvo factory.

It is appropriate if I deal with the claims concerning the two "rust" vehicles, 135 and 4 4 3 , flrst and then deal	with
the claim involving 677 which is based on late dellvery.	677 was
not subject to rust problems.

The evidence shows that the

first applicants, on 10

December 1979, gave

a written order to the respondent to supply

them with a model F10 6 X 4V Volvo truck with specified

accessories for a total price of $76,124.00. They lndlcated on

that form that they intended to flnance the purchase

from Esanda

Ltd. at Moorooka.

The delivery date stated

on the order form was

28 March 1980. That order was subject

to the "special conditions

of contract" on

the reverse of the printed order form. Clause

stated "The delivery date stated

on the face hereof is an

estlmate only. You shall not be liable in damagks nor shall the

contract be affected

by any delay in delivery on your part

except a delay due

to wilful and unreasonable refusal by

you to

make the goods

available for delivery".

The respondent invoiced

the selling price

to Esanda Ltd. on 28 February l980

to the

account of the flrst applicants and dellvered to

them the Volvo--

reqd.no.135-NRR on or about; 3 March 1980. At the time of

those

dealings, the respondent had been told by

Mr. Lawson that the

vehlcle was to be used in the applicants' business for overnight

express work between Brisbane and Townsvllle.

In relation to the vehicle,

443-CJRR, there was similarly

a written order dated

15 January 1980 made by the first

applicants to the respondents for the supply

of R model F10 6 X

4V Volvo truck on the same terms and conditlons

as in the earlier

order.

Tile applicants represented that they intended

to finance

the purchase from Australian Guarantee Corporation Limited.

The

respondent invoiced the selling price of the Volvo

t A.G.C.

Limited on 24 March 1980 to the account; of the first applicants

and the respondent, delivered

to the first applicants the Volvo

433-NRR on or about 21 March 1980. In relation to this vehicle also, the respondent had been told by Mr. Lawson that it was to

be used in the overnlght express work	f the first applicant
between Brisbane and Townsvllle.

It is not in dispute that within

a short period rust

appeared in the cabin area

of vehicle 135, initially bubbling

under the windscreen and subsequently the rust problem

in that

vehicle worsened.

It appeared later that similar problems

affected vehlcle 443.

The case €or the applicant

as argued essentially was

that the respondent represented that it would

fix the rust

problems in both vehicl-es and

do the work

expeditiously; that all

of the tlme at which the vehicles were

at the respondents for

that purpose (other than times

which were spent on problems

unassociated with rust) was wasted time; that durlng that period

the vehicles could have been profitably employed and that the

applicants are entitled to be compensated for that

loss. It is

sought to frame that claim under the Trade

Practice; Act as

either misleading

or deceptive conduct under

s.52'or as a

representation that the servlces to be supplied by the

respondents had performance characteristjcs

or benefits that they

did not have

or that the services were

of a particular standard,

quality or grade. klternatlvely, it

was asserted that It

was an

express term of a contract of repair

with Noyes Bros. or,

alternatively, an implied term of such a contract that Noyes

Bros. would repair the rust problem and	do that work
expeditiously.

Those claims sit

a little uneasily

with the claims

the applicants

as pleaded in the Statement

of Claim, and

I will

shortly turn to that

formulation.

For the respondent, it was asserted that the applicants'

claims, as pleaded, did not provide any cause

oi action. The

defence on the merits was substantially that the evidence

established that the attempts to repair the work were conducted

in the context

of a warranty claim by the first'applicants

aqainst the manufacturer, Volvo; that there

was never any

. .

representation as alleged either in the Statement

of Claim or as

argued; that the various ways sought to solve

the rust problems

were as dlrected by the Warranty Manager

of Volvo, Mr. Duncan,

and that they were embarked upon in

the hope of eliminatlng the-

rust problem rather than

as in the execution

of a promise by

Noyes Bros. that they would repair the defects and overcome the liability to rust; that the statements accompanylng the efforts by Noyes Bros. plainly were statements of hope or expectatlon and

wete not such	as to constitute msleadinq or deceptive conduct.
Further, even	if they were of that kind, they wet-e not productive

of loss or damage under 5 . 8 2 of the Act.

Before turning to the plaintifi's iormulation

f its

claims in this regard, on

the evidence lt is clear that there

were manufacturing defects in the vehicles

135 and 443 in that

they were liable to rust. Nithin the twelve months warranty period attaching to each of those vehicles, complaints were made

concerning that rust to

the respondent. As a result of various

conversations xhich involved Mr. Lawson, Mr. David More, the

Service Manager of the Vehicle Division

of the respondent, and on

some occ~sions

Mr. Robert Duncan, the Warranty Manager of Volvo

for northern New South Wales and Queensland, the respondent attempted on a number of occasions to repalr that rust'by various

methods. " h o s e methods did not have the efZect

of removing the

Inherent liability to rust although there

was some cosmetic

improvement. Ultimately, the rusty cabins	of 135 and 443 were
replaced by Volvo.

The formulation of the applicants' claim in the

Statement of Claim, in respect of vehicle 135, was

as follows:-

12A.

The said pantechnlcon referered to i n paragraph 12

hereof was defective and not in

all respects

structurally sound in that

it had not been properly

rust-proofed and was llable to suffer severe rustlng

when It went Into servlce.

12B.

The first applicants caused the sald pantechnicon

reZerred to in paragraph

12.9 hereof to be delivered to

the respondents for the repalr and rectiflcation

of,

inter alia, the defect

described in the said paragraph

12A. hereof.

PARTICULARS

(a)Delivered to the respondent 13th

J u l y ,

1981 and not

returned and available for the use

of the first

applicants until 3rd August,

13R1.

A reasonable

period for completlon

of work required to

be done

other than that relatjng

to repair of the

rust in the

cabln 67as one lay. The period of tune, therefore,

relatlng to the repair of	rust in the cabin	was 20
days;

(b)Delivcred to the respondents

on 13th August, 1981 and

not returned and available for the use

of the first

applicants until 20th August, 19Rl.

A reasonable

period for completion

of work required to be done

other than that relating to repair of the rust

in the

cabin was one day. The period of time, therefore,

relating to the repair of rust was

6 days.

12c.

Prior to the said delivery referred

to in paragraph

12B

hereof the respondent represented

to the flrst

applicants:

(a)that the respondent was in all respects capable of

making such repalr and rectification

as may be

required to effectlvely deal

with the defect referred

to in paragraph

12.9 hereof; and

(b)	such repair and rectification could be carried out

expeditlously.

12D.

The said representation referred to in paragraph 12C

hereof was false in that:

(a)the respondent was not in

all respects capable

making such repair and rectification

as was required

to effectively deal with the defect referred	to In
paravraph 12A hereof; and

(b)	the respondent could not carry out the said repair

and rectification expedltiously.

(c)

Further and in the alternatlve the Respondent made

the statement with reckless indifference

to whether

it could carry out the sald repair and rectiflcatjon

effectively; or alternatively lf it could carry out

10.

the said repair and rectification effectlvely it made

the statement wlth reckless indifference to whether

it could carry out the sald repair and rectlflcatjon

expeditiously;

(d)	Further and. in the alternative when the Respondent

made the representation it knew or ought to have

known that it could not carry out the said repair

r,d

rectificatlon effectively;

or alternatlvely if it

could carry out the said repalr cnd

rect~ilcatlon

effectively It made the representatlon when It

knet.7

or ought to have known that it could not carry out

the sald repalr and rectification espedltiously.

12E.

The sald representations referred to

in pareagraph 12C

hereof were made by the respondents in connection

with

the supply or possible supply of servlces by the

respondents to the first applicants.

12F.

Further, the conduct of the respondents i-efert-ed to in

paragraph 12C hereof:

(a)was engaged in in trade

or commerce;

(b)was misleading

or deceptive; and

(c)Lnduced the first applicants

to deliver the said

pantechnicon to the respondents for the said repair

and rectiflcatlon.

12G.

The making of the representations referred to in

paragraph 12C hereoi constituted contraventions

of the

provisions of:

(a)Section 52; and

(b)Sectjons 53(aa) and 53(c) of the

Trade Practices Act

1974.

12H.	As a result of the contraventions referred to in
paragraph 12F hereof the flrst applicants have suffered
loss or damage.

PkP.TICUTAFG

Period 13th July, 1981 to 3rd August, 1981

Vehicle off the road for

21 days.

Vehicle missed 5 return trips to Townsville.

Gross lncome for

each return trip

Towsvllle

$1,482.41

Less deductions per return trip

Fue

$310.00

Tyres

$30.00

Maintenance expenses

$50.00

$390.00

Net Income loss per return trip

$1,092.41

11.

Perxod 13th August, 1481

to 20th August, 1981

Vehicle off the road for

7 days

Vehicle missed one return

trip to Townsville

and one return

trlp to Mackay

Gross income for each return trlp

Mackay

$1,036.10

Less deductions per return trip

Fue 1

$200.00

Tyres	$20.00
Maintenance

expenses

$30.00

$250.00

Net income loss per return trip

$786.10

Income loss for the return trip

Townsville - as above

Therefore total 105s:-

6 return trips to Townsville

$6,554.46

1 return trip Mackay

$786.10

$7,340.56

Further and in the alternative to paragraphs 12A to

1211

inclusive in relation to pantechnicon registered number

135-NRR:

121. By an agreement made between the first applicants of the

one part and the respondents of the other part it was

agreed that the first applicants would deliver

to the

respondent the said pantechnicon for repair and

rectificatlon of, inter alia, the defect descrlbed in

paragraph 1 2 hereof.

12J.

Implied terms of the said agreement were:

(a)

the respondent would carry out the required repair and rectificatlon effectively; and

(b)

such repair and rectification would be carried out

expeditiously.

It was also pleaded that those terms

were express terms

of the said agreement.

Damages claimed in respect of breach of contract were

the same

as earlier set out

for the Trade Practices claim.

12.

The pleading in relation to vehicle

443 was slmilar,

save that the periods in

whlch that vehicle was In for repair

were from the 16 July 1981 to

29 July 1981 and the perlod from 3

August 1981 to

17 Buqust 1981, and In respect of those two

periods, the total

loss was said to be $8,733.28.

It is relevant to the claim involving

the "rust"

vehicles that the

vehlcle involved in the late delivery claim,

vehicle 677, was delivered on 2 0 June 1981.

It was necessary to have regard to what occurred in

relation to the several attempts to repair the rust problem.

accept that it was about: the middle of

February that Iqr. Lawson

made the first complalnt to Mr. Da-rid More concernlng rust in

vehicle 135.

It is clear from each of the service invoices, relating

to the repairs

which were sought to

be made to either vehicle

443

or 135, that the question of rust in the cab

of each of those

vehicles was a warranty matter. Chronologically, the first

was

on 2 3 February 1981 In relatlon to

443. There is a notation "Rust

in cab" and a marking indicatmg that item to

be a warranty

matter. Sim~larly,

on 2 March 1981 in respect of vehicie 135,

there IS a notation "Check and report

on rust in cab roof and

doors", associated with a warranty marking.

The later invoices in respect of

each vehicle follow the

same pattern.

13.

Each of the service involces at the foot has this

notation:-

"Please execute

at mylour cost as soon

as you

conveniently can, the repairs llsted above,

also

any other work considered essentlal	by workshop	-
management thereto."

Most of the invoices to

which I have referred were signed by Mr.

Lawson or one of hls employees.

The detailed analysis during the course

of evldence of

the work copies of the service involces shows that

the repair

work was done

with reasonable expedition. Mr. Bernard Day, a

leading hand employed

by the respondent for part of the perlod

material to these proceedlnqs, indicated

that, ii each of the

rsrticular repair items were done immediately after an earlier conceded. The detailed canvassing of the work done in respect of

item had been concluded, the repalrs could in fact have been

completed in a much shorter period than the time actually taken.

each various item, when viewed realistically against

background

of actual workshop practice, satisfies me that

no complaint can

validly be made as to the repairs taklng

an unreasonable period.

Any complaint must be based

on the fact that

the attempts to cure

the rust problem were unsuccessful.

The aspect of damage that centres on the €act that

the

vehicles were "infected" by rust, has been redressed by the

replacement of the cabs. hbat these claims seek to establish

that the first applicants are entltled to

be paLd the profits

that would have been earned during the period in which those

14.

attempts to flx the rust problems were pursued. In my

view, tlns

claim necessarily must assert that the respondent assured

M .

Lawson that It could and would

fix the rust problems when It

knew

that it ~7as

not able to or did not reasonably believe that

it ..

would be able to.

I am not satisfied that any representatlon.

as alleged

in paragraphs 1 Z C and 19C of

the Statement of Claim, was made by

any servant or agent of the respondent; even

If such a

representation were made, it does not amount In

my opinion to

misleading or deceptive conduct under

5.52 of the Act or a false

representation as to services under elther 52(aa)	or (c) of the
Act.

I accept that, contrary to the submission

of counsel for

the respondent, in addition to the contractual arrangement

between Noyes Bros. and Volvo, pursuant to the warranty glven by

Volvo in respect

of each vehicle, there were contracts

of repair

between the first applicants and the respondent. However, in

opinion, there was no contractual

term, either express or

implied, in any

of those contracts as

1s alleged in paragraphs

-12J, lZJA, 19J, or 19JA of the Statement of Claim.

Mr. Lawson gave evidence that

he had a conversation at a

Truck Show that occurred in April 1981. Present

at that

conversation, in addition

to his drivers, were Mr. David More and

Mr. Bob Duncan. In the course	of describing what occurred	on that
occasion. Mr. Lawson said:-

15.

had tried time and

tune

again to contact Bob

Duncan through Noyes Bros. . and he was always out oi town or not avallable or at some function or whatever - whlch I suppose 1s natural as he is the warranty manaqer for Northern New South 1'Jales and Queensland and so he has a falr area to cover -

and they sald	he would definltely be at the truck	- -
show.
...

The main

reason

Ian

Andrew

(one of Lawson's

drivers) and myself cornered

Dave More at

the

truck show in

the public bar of the wet canteen

was to see what

Dave could arranqe on the basis of

fixing or

repalring or replacing the rust in the

cabs of the vehlcles

. . . l '

And later Mr. Lawson said that:-

"... Dave

just said Rob Duncan offered a warranty

€or a Volvo in Queensland. 'You have heard about the problems with the vehicles and the rust?' Bob said, 'Yes, what has been done about It?' Dave

said, 'Very little this time.

All Kep

has ever

asked us to do is repair

his vehicles. Now, I

think we should honour his	wish.'
...

He said 'Have

you got any quotes on the vehlcles

as of yet?' Dave said, 'No, not really.' He sald 'Well, get the quotes and then give them to me, and we will take it from there.' That was at the truck show.

Mr. Lawsan said that some three weeks later, when

he was

'a little bit hot under the collar', at Noyes	Bro . premises Dave
More said:-

"Well, look, don't worry about it, because we wlll definitely fix it up for you. There is no

problem. We will definitely

fix the rust in your

vehicles.

It will be repaired. There will be

problem.

However, speaking a little later of the conversation	with Mr.
More on the same occasion, he said:-

16.

"As I said to Dave, 'What are we stuffing about for? Nhy don't you just replace the cabs, because

surely

to strip the cab completely and then

back and rebuild that same cab again with parts of different pa.~els that have rust in them, and try to cure that rust, It surely would be cheaper to

just put

new cabs on.' Hls

comeback to that was,

'There is no

problem; we have this acid treatment

where you

pour it

through the double panels and

the under-channels and everything else, llft the

cab so that all the acid drains

out. Thls acid is

supposed to

get Into all the nooks and crannles

and

everything

else, and neutralise the rust.

Then they

do the same process aver again wlth

product

hey

call

Tectyl, and

this

1 s

then

supposed to make everythlng airtight and stop any

further corroslon

or rust.'"

The terms of that conversation, particularly its

emphasis or1 what the treatment was "supposed

to do", in my V J ~ G I ,

correctly conveys the tenor

of the communlcations between Mr.

r,awson and Mr. Moore. Moreover, in cross-examlnation, Mr.	hwson
gave this evidence:-

"The

warranty,

as you know, covered

rectification of defects

occurring within the

first 12 months of service?---That is correct,

yes.

And, as you told us, the rust started

appear in those vehicles early

the piece

and well wlthin the

12 month period?---Yes.

And it was your concern, and you gave instructions to the drivers accordingly, when the vehicles went In during that perlod, that

they

ensured

the

rust

noted

so that

evzryone

knew the problem arose withln the

first 12 months?---That is correct.

And

it was a warranty

problem?---That

correct.

And later in cross-examination, in respect of each vehicle,

agreed that he had received only one warranty.

He was then

asked :

1 7 .

"And that was

a manufacturer's warranty?---That is

correct, yes.

And it was given by Volvo?---Yes.

And your

bellef

was

that

the rust was a

manufacturlng defect and it	shclJld	be fixed
up?---That is correct.

Under that warranty?---That is correct."

I accept that there was no complaint ever made as

delay in returning the vehicles when they were left for repairs

at various times. Moreover. I am satlsfied that lt was clear to

all parties, particularly Mr. Lawson, Mr. More, and Mr. Duncan,

that the rectification

of the rust problem was the responsibility

of Volvo, the manufacturer.

I am satisfied that on the

30 March 1981 there was an

inspection carried out

wjth Mr. Lawson, Mr. Duncan and Mr. More

present, which revealed rust in the windscreen. On that

day,

Duncan instructed More to get quotes Cor the repair

of the rust

and to obtain these from repairers

who would guarantee their

repair work. This conversation is quite consistent with the conversation at the truck show in mid-April to whlch Mr. Lawson

deposed.

I 2m satisfied that there was

a second inspection

involving Mr. Duncan on the Collowinq day in

which there was

discussion by Mr. Duncan as to the method oi repalr that would be

employed. In particular, Duncan was the source of the reference

to the use

of Tectyl.

It is clear that each of the invoices involving rust

repair involved a warranty claim by Moyes Bros. on Volvo and was

paid by Volvo.

18.

I am satisfied that

on 13 July there

was a further

discusslon between Lawson, Duncan and More concerning the rust

problem and that Mr. Lawson, on that occasion, was becominq

ore

emphatic that the problem could only be resolved by replacement-.

of the cabins in thc vehicle.

On all o€ the evidence deallnq conversations and negotlation involving the rust vehicles

with the various

135 and

443,	I am of the view that the statements made by the respondent

were made in hope, expectation or anticipation, and

certainly did

not have the character

of a warranty about them. In this regard

reference may profltably be mzdc

to the observations of the Full

Court of the Federal Court in Global Sportsman

Ptv.Ltd.& Anor. V.

Mirror Newspapers Limited

& Anor. (1984) 55 A.L.R. 2 5 at p.31,

where their Honours say:-

"Many statements, for example promises, predictions

and opinions, do

involve the state of mind

of the

maker of the

statement at the

time

when

the

statement 1 s made. Precisely the same princlples

control

the

operation

subsec.

52(1)

with

respect to the

making of such

statements.

statement which involves the state of mind of the

maker ordinarily conveys the

rneanlnq (expressly or

by implication) that the maker

the statement

had a particular state of mind vhen the statement

was made and, cormonly at least, that there was

basis for the state

of mind.

If the meaning

contained in or conveyed by the statement is false

in that or in any other respect, the making of the

statement will hve contravened subsec. 52(1) of

the

Act.

Compare

Lvons

v. Kern

Kol~5truCtiOnS

(Townsviile) Pt:y.Ltd. (1983) ATPR 40-343; (1983)

47 A.L.R. 114.

The non-fuifilment of a promise when the time for

performance arrives does not of itself establlsh

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

predictlon did not believe that It would eventuate

.. 1 .

19.

or that the be1 ief lacked

any, or

any adequate,

foundation.

Likewise,

the

incorrectness

of an

opinion (assuming that can be established) does

not of itself

establish that the oplnlon vas not

held by the person

who expressed It or that it

lacked any, or any adequate, foundation."

For the above reasons, in my opinion, the first

applicants are not entltled to the relief they seek in relation

to the vehicles

135 and 443.

A different problem, and one which has caused

me greater

difficulty, concerns the claim involving the vehicle 677. There

are serious conflicts In the evidence

as to whether an agreement

came into existence in January 1981	for the supply by the
rpspondent of an F10 Volvo vehicle.

Again, the Statement of Claim does not accuratcly put

the applicants' case as argued.

It alleges that in or about June

1981 the respondent sold to General Credits

a new Vclvo F10-27

pantechnicon, Queensland reglstration number

677-OBG ("677");

that that pantechnicon

was supplied by the respondent

to General

Credits in order that it

be leased by General Credits to the

second applicant

f o r use by the second applicant,

so that it

could lease that vehicle to the first appllcants for use in

express carrying work; that the respondent was aware

of those

facts and its supply for those purposes;

that, by an agreement

entered into on or about

11 May 1981, the said pantechnicon

was

leased by General Credits Limited to the second applicant for

term of four

years; that, prior to the supply 06 that

20.

pantechnicon, the respondent represented to Kenneth John

Lawson,

and to the second appllcant

by its. agent, Kenneth John

Lawson,

that the pantechnlcon was In

a condltion such t\at it could be

delivered before March 1981.

As pleaded, that is the crucial representation in this

aspect of the case. The Statement of Clalm alleyes that that

representatlon was made at thc respondent's premises at Wacol

sevEral occasions In January 1981 and was made by each of the

respondent's servants, Brlan Morely and

Hugh Goddkrd. It

1s said

that that conduct was misleading or deceptive,

or constltuted

contraventions of the provisions of s.53(a) and (c) of the Trade

Practlces Act.

The Statement of Claim further provided:-

(a)	By an oral agreement made in January, 1981 between the

Applicants of the one part and the Respondent of the other part, the Respondent agreed to sell to the Applicants or to a flnance company of their nommatlon for leaslng from that company by them, an F1027 cabin

and chassis to the speci€ications agreed

on for a price

of $74,450.00.

(b)	It was an express term of the said agreement that the

said cabin and chassls would be sold and delivered

before the beginning

of March, 1981.

(C)

In breach of the said agreement the Respondent failed

sell and dellver

a F1027 cabin arld chassis until the

28th June, 1981.

( d )

fly EF*36irtl of the sald brcach the Second Applicant has

suffered loss, particulars whereof are set out in

paragraph 35(d) hereof."

The quantification of the damages clalmed was based the loss of profits due to the failure

of the respondent to have

the pantechnicon available for delivery during the period March

1981 to 28 June 1981. It is said

that, in respect of each week

21.

of that period, the vehicle would have been able to

do three

return t,rips from Townsville to Mt. Isa and earn revenue at 53c

per kilometre and, when account was taken of the outgoings, the

net income loss per week would be $1,364.60, making a total loss.

for the period

of $23,198.20.

The pleading of the Trade Practices claim concerning the

alleged late delivery to

which I have referred, is confusing to

put it no higher. The primary allegation by Mr. Lawson was that

he orally agreed in January 1981

with Brian Morely, the sales

representative of the first respondent, to purchase

an F10 Volvo

motor vehicle, which had been inspected in early January 19G1 by

Mr. Lawson and

Mr. Morely, and that such vehicle, having been

modified to his requirements, would be	suppli.ed so as to be able
to commence work on 1 March 1981.

The respondent's contention is that there was never agreement to supply any such vehicle in January

s alleged.

Although there were negotiations and discussions between Mr.

Lawson and Mr. Morely and, indeed, others

that Mr. La~,~son

might

purchase one or two F10 motor vehicles for the purpose

of ,

satisfying contracts then being negotiated, no firm offer

by Mr.

Lawson to purchase was made until April 1981.

The respondent

further contended that

a quotation supplied to Mr. Lawson in May

and an order form signed by him that same

month, related to a

vehicle which previously had been obtained

for one I. Anderson,

and was modified to Mr. Lawson's requirements and supplied to him

on 28 June 1381.

22 .

In the face of the documentation surrounding the

ordering and supply

of 677, Mr. Lawson contends that that

documentation relates

‘;0 the second F10 that he was contemplating

purchasing. It is hls contention

that, in early January, he

- -

entered into an oral agreement with Mr. Morely for the first	F10
vehlcle to be supplied by March 1981.

It is apparent that this claim is

a pure clalm for loss

of profits for late delivery. I have difficulty in seeing how

such a claim can properly be characterised

as a claim € o r loss or

damage suffered by conduct which contravenes Part

V of the Act.

I accept that thc approach

to the statutory remedy given

5 . 8 2

is as indicated by the

Full Court of the Federal Court

in Gates

7. City Mutual Life Assurance Society Ltd.	(1983) 68 F.L.R. 101,
where it was said at 104:-

“...the question is not

how much better off

(the

applicant) would have been if the statements had been true but how much worse off he IS by reason

of having taken the steps which

he did In reliance

on the statements.

I‘

The nature of the claim, in my vlew, is contractual and

depends fundamentally on whether there was such an oral agreement

as alleged by Mr. Lawson. This is fortified by recerence

to how

the Trade Practices claim is pleaded in the Statement

of Claim.

On the resolution of the questlon of whether there was

such an agreement, there is simply no evidence

bf any

representation as pleaded emanating from Mr. Goddard.

2 3 .

Mr. Lawson's account is that in November 1980

he had

discussions with Mr. Ray Rutherford, then General Manager

Priceways Transport Queensland, about expanding the work that the

Lawsons were then periorming for the Priceways servlce

and, 2.n

particular, Rutherford inqulred whether

Mr. Lawson would be

prepared to put two

10 tonne vehicles on the Townsville-Mt.Isa

run operated by Priceways.

Mr. Lawson says that about

a week

beiore Christmas 1980. he and one of

his drivers went to the

premises of Noyes Bros. and, in the company of Brjan Morely,

inspected an F10-27 vehicle, which

was iitted with a Hendriksen

suspension. Morely indica-ted that that vehicle ~7as

available for

sale. Lawson told h m that he wasn't able to do anything about purchasing it at that tlme, but that he would be able to make a

decision shortly after Christmas. He says that on 7th	or 9th
January he said to More1y:-

"Yes, it is a goer. I want one vehicle now, to be ready, with the rust in the 135 and 443 repaired, and it must be on the road and begin that work up

north on 1 March.

He says that Mr.Morely said

to him:-

"There should not

be any worries at all."

Mr. Lawson a l s o stated that the particular vehicle that

he had

seen with

Mr. Morely was then driven into one of the work bays of

the respondent. He stated that he then had discussions as to what

modliications would be needed and informed

Mr. More that he

needed the vehicle by the beginning

of March. He said that. More

replied khat, as far as he could see, there was no Treat problem.

24.

Mr. Lawson says that

he saw an employee, Mr. Bernard Day, workinq

on the transier oi the suspension on the vehicle

he had inspected

in early January. He leit

for overseas on 1 February, returning

on 20th February, and shortly thereafter inqulred at the service

reception desk to see

how thls truck was going.

He says that

nobody seemed to know anything about

it.

He says that in May

he signed an order form, but claims

it was in respect

of a further F10-27 vehicle, and antlcipated

and expected that

he would be supplied

wlth the F10 inspected in

January 1980 on the basis

of the agreement formed at that time.

He says that that agreement was completely oral.

On this question,

I derive no real asslstance from the

evidence of Mrs. Diane Harbourn, who commenced work at General

Credits, Underwood, on 6 March 1981, and who thereafter had some

dealings with Mr. Lawson concerning the provision

of finance.

I accept Mr. Rutherford

as an honest and reliable

witness. Iie says that he reached agreement wlth Mr. Lawson in December 1980 as to the provision

of an F10 vehicle for the

Tocmsville - Mt.Isa run.

Significantly, he said in evidence:-

“He was

to provide the vehicle to us

soon as

possible but at that stage

we were looking for the

vehicle around the beginning

of March because that

is when

the, what we call the season in North

Queensland, starts

...I‘

25.

Rutheriord agreed that

he in

€act was not able to get

another vehlcle to

do the Townsville - Mt.Isa run in

March,

April, May or June of 1981.

He did not make a clalm against Mr.

Lawson by not havlng the F10 there In March.

- -

I am satisfied that what occurred was that in January

1981 there was

conversation between Mr. Lawson and

Mr. Morely,

wherein Mr.

Lawson indicated that

he was negotiating a contract

and would want one vehicle, possibly two. On that occasion there

was an F10

vehicle at Noyes Bros.. However,

it’was not part of

their stock and was not available to be sold to

Mr. Lawson, any

of his companies or any other customer

of Noyes Bros. This

conclusion is supported by

the documentary evidence.

I am satisfied that there was

discussion concerning

the modificatjons that

Mr. Lawson contemplated and that those

discussions occurred in the course of the

inspection of the F10

vehicle present on those premises in January.

I am, however, of

the view

that, while there were negotlations and indicatlons

interest by Mr. Lawson, there was no concluded aqreement on the part of Noyes Bros. to supply either the F10 as Inspected or any other vehicle at that tlme. I am fortlfled in this view by the documentary evidence to whlch I will presently come. The absence of m y written order, or indeed any other writing, In respect of

a truck of considerable

value,

particularly

where

the

requirements included extensive and expensive modifications

of a

‘one-off’ kind,

is inherently improbable.

26 .

I have already referred to the circumstances in whjch

the vehicles

135 and

443 were acquired. There

a completed

order form dated

11 May 1981 which relates, it seems clearly, to

677 .

There is also

a typed quotation which clearly relates

t o

the same vehlrle, signed by Mr. Morely and dated

6 May 1981.

have earlier referred to the special conditions of contract on

the reverse side of the vehicle order form employed by Noyes

Bros.,

lncludinq condition

3 dealing with the delivery date.

The vehicle order form signed May 1981 has endoryed in the space

by Mr. Lawson and dated

f o r the delivery date the

letters (A.S.A.P.). The evidence cstabllshes that that vehicle

had previously been acquired by Noyes Bros.

as a result of an

order placed with them on

3 April 1981 by Mr. I. Andersen. The

truck was delivered on 10 Aprll in accordance

with Mr. Anderson's

order and, on 15 April 1981, Mr. Anderson cancelled his order

because of lack of finance, whereupon that vehicle became

avallable to meet Mr.Lawson's needs.

Mr. Morely denied any agreement

with Mr. Lawson

concerning the purchase of

an F10 in January 1981

and, in

particular, any representation that such	a vehicle would be
modified or supplied by 1 Ysrch 1981.

Mr. Day gave evidence that

he worked on the fittlng of a

Reyco suspension for

a vehicle to be supplied to

Mr. Lawson. His

evidence does not permit the conclusion that that work	was done
in January 1981.

27.

I do not accept that

Mr. Lawson entered into

a contract

for the supply of an F10-27 motor vehicle In January 1981.

follows that I reject that there

was, as a term of that agreement

or as a representation collateral as conduct

to It, o r induclng

the maklng of any such oral agreement,

a representation that that

vehicle would be supplied

so as to be able to commence work

on 1

March 1981.

Apart from the inherent improbabilities attendant

upon the maklng

oi such an oral agreement and the unsatisfactory

explanations oZfered for the existence of the documentation

which I have already referred,

I was particularly impressed by

the evidence of Mr. Goddard, supported as	lt was by material
whlch I belleve to be trustworthy.

Mr. Goddard was the Sales Manager employed by thie

respondent from 6 October 1980 until approxlmately a year later.

While there, it was his practice to keep

a diary. There are

series of entries commencing on 7 April 1981 and dealing with the pursuit of leads, including Mr. Lawson, various conversion prices

for Mr. Lawson, and

an entry dealing with the approval of finance

for Mr. Lawson.

Moreover, as Sales Manager, Mr. Goddard complled an

Order Prospect and Status Report. These reports were prepared

a weekly basis.

In the report of 23.1.81, Mr. Lawson's name

appears as a prospect in relation

to "2 X F10 6 X 4 " vehicles and

In the remarks column appears "Awaiting Contract decision".

the report of 30 January 1981, in the remarks column appears

"Result/Contract early February". In

the report of 6 February,

2 9 .

in the remarks colmn is "Holiday 2 weeks". In the report of 1 3

February 1981, in the remarks column "Holidays

2 weeks F/up .

. . "

In the report of 23 February, the remarks are "Still no

Contract". The report

of 27 February 1981 contains

the remarks,

"Contract O.K.

Should order 3 1 3 " .

In the report of "Orders", Mr. Lawson's name appears for the

6 March 1981, under the heading

first time and, In

the remarks column, the words "Verbal

at present". appear. In the

reports of 13 March and 20 March, the information is unchanged.

On 2 7 March, the report contains the words in the remarks column,

"Verbal at present. Awaiting Contract confirmation." On

April, the words

"Verbal at present. Awaiting Contract confirm."

appear, and, on 15 April, the remarks column contains the words

"Verbal at

present.

Decislon 1 truck 2 2 . 4 . "

Jn the report

of 8 May, there is an order for Mr.Lawson

of an F10 6 X 4, the order month being said

to be May and the

delivery column has the words

" T o be confirmed". On

15 and 25 thy

and 1 June, the same appears. On

5 June, the information remains

unchanged, except that the delivery month is said

to be June. On

2 3 June 1981, the delivery date

is said to be

3 0 June 1981.

The reliability of this material

was attacked, on the

basis that its source

was the salesmen's reports to

Mr. Goddard.

It seems to me unllkely that

salesman would blatently supply

quite wrong information to

Mr. Goddard, omit information of an

29.

actual sale by

hlm which would entltle him

to commission, and

introduce a touch of verisimilitude to the dislnformation	by the
(correct) reference to holidays. I accept It.

- -

Fortified by this material,

on the whole of the

evidence,I am satisfied that there

was no agreement reached in

January 1981 as alleged by Mr. Lawson. In particular, there was no representation or term of an agreement that an F10 would be

supplied by 1 March 1981.

It follows that the applicants' claim

for relief on this aspect of the claim fails.

I should mention that there is no material to suggest

that at any stage Noyes Btos . were aware that the vehicle would

be acquired by the second applicant. 6 7 7 , it is true, was sold

by noyes Bros. to General Credits Limited which leased it to he

second applicant, but there is

no materlal on which it could be

concluded that the respondent was aware of any inter-relationship

of the second and first applicants or, indeed, of the existence

of the second applicant. It is, however, unnecessary to pursue

this aspect further In the light of the factual findings as to

the absence of any agreement in January 1981 for the supply	of an
F10 vehicle.

[1985] FCA 308

5 Jul 1985