FEDERAL COURT OF AUSTRALIA
Lowe v Mack Trucks Australia Pty Limited [2008] FCA 439
TRADE PRACTICES – Consumer protection – Breach of implied condition of merchantable quality – Breach of implied condition of fitness for purpose – Misleading and deceptive conduct – (CTH) Trade Practices Act 1974 ss 52, 66(2), 71(1), 71(2), 75AD, 82, 87
Evidence – Opinion – Expert evidence – Admissibility – (CTH) Evidence Act 1995 ss 79,135
Trade Practices Act 1974 (Cth) ss 52, 66(2), 71(1), 71(2), 75AD, 82,87
Evidence Act 1995 (Cth) ss 79,135Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220 cited
Crowther v Shannon Motors Co [1975] 1 WLR 30 cited
Jillawarra Grazing Co v John ShearerLtd (1984) ATPR 40-441 cited
Rogers v Parish (Scarborough) Ltd [1987] QB 933 approved
Courtney v Medtel Pty Ltd (2003)126 FCR 219 cited
Medtel Pty Ltd v Courtney (2003) 130 FCR 18 followed
Cavalier Marketing (Australia) Pty Ltd v Rasell (1990) 96 ALR 375 cited
Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 followed
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 cited
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 cited
Henville v Walker (2001) 206 CLR 459 cited
Ting v Blanche (1993) 118 ALR 543 cited
Phoenix Court Pty Ltd v Melbourne Central Pty Ltd (1997) ATPR (Digest) 46-179 cited
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-633 cited
Banque Commerciale S A v Akhil Holdings Ltd (1990) 169 CLR 279 cited
General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 cited
Pappas v Soulac Pty Ltd (1983) 50 ALR 231 cited
Sanders v Glev Franchises Pty Ltd [2002] FCA 1332 cited
Hanave Pty Ltd v LFOT Pty Ltd [1998] FCA 1051 cited
Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689 cited
HG v The Queen (1999) 197 CLR 414 applied
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 cited
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 cited
Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 cited
Allstate Life Insurance Co v ANZ Banking Group Ltd (No 6) (1996) 64 FCR 79 cited
Henscke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63; [1999] FCA 1561 cited
Rhoden v Wingate [2002] NSWCA 165 citedArnotts Ltd v Trade Practices Commission (1990 24 FCR 313 cited
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123 cited
National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rep 68 cited
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 cited
United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 cited
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136 applied
Arturi v Zupps Motors Pty Ltd (1980)…
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- Case
- [2008] FCA 439
- Decision Date
CaseChat Overview and Summary
The court examined the evidence to determine if there was any proof of damages or if any loss claimed was substantiated. It noted that there was no claim for repairs or loss calculated by reference to the price Lowe paid for the truck and its true worth. The evidence regarding loss of profits was found to be fundamentally flawed. The court also concluded that the claim for loss of time for 73 days was not proved. These findings led the court to conclude that the cause of action could not significantly contribute to Lowe's primary case.
The court ultimately found that Lowe had failed to prove the necessary damages for the breach of warranty or misrepresentation claims. Consequently, the court dismissed the application. The parties were ordered to file and serve written submissions on costs by a specified deadline.
Orders
Orders of the court
1. The application be dismissed.
2. The parties file and serve written submissions on costs on or before 4 pm on 16 April 2008.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: KENNY J
Furthermore, I am unable to discern in the evidence anything that might be regarded as proof of damages for this purpose: compare Gurdag v Stillwell Ford Pty Ltd (1985) 61 ALR 689. There is no claim for repairs or loss calculated by reference to the price the applicants paid for the truck and its true worth. As discussed below, the evidence led in connection with loss of profits is fundamentally flawed. There is a claim for loss of time for 73 days, which has not been proved. These observations confirm my conclusion that, as the applicants’ counsel said, this cause of action can in fact add little to the applicants’ primary case.5. THE HISTORY OF THE APPLICANTS’ OPERATION OF THE TRUCK(A) Buying the truck Mr Lowe’s evidence was critical to the applicants’ case. Mr Lowe was forty-nine years of age when he acquired the truck. He was a qualified mechanic and an experienced truck driver. He had more than twenty years’ experience of driving a number of different heavy prime mover vehicles in long-haul interstate transport operations. Mr Lowe and his wife had begun their long-haul goods transport business over twenty years before the purchase of the truck. He had owned and operated numerous different model trucks prior to March 1998, including three Mack trucks. In September 1997, some months before the purchase of the truck in March 1998, he and his wife purchased a new Tautliner semi-trailer. The truck was to be used to transport this semi-trailer, loaded with goods. On or shortly before Friday, 20 March 1998, Mr Lowe spoke to Mr Kumnick at Mack’s Adelaide office about buying a new truck to replace the Mack CHR he was operating at that time. Mr Lowe and Mr Kumnick had regular dealings with one another at this time. In this circumstance, Mr Kumnick knew that the replacement truck was for use in interstate haulage. Mr Kumnick made an appraisal of Mr Lowe’s Mack CHR and looked into what Mack might offer by way of a replacement. On the evening of 20 March 1998, Mr Kumnick telephoned the Lowes and told Mr Lowe that the truck – the Mack CH Elite – would “ideally suit his intended use” and that “it should prove to be a safe and reliable vehicle for about 800,000 kms”. When asked in cross-examination about this “ideally suited” statement, Mr Kumnick affirmed that Mr Lowe “understands the spec of trucks just as well as I do”. Mr Kumnick also said:I can remember making a comment to him that the trucks drive like cars but that was in the context of talking to an experienced heavy vehicle driver … Mr Lowe gave evidence that he originally told Mr Kumnick that he was not looking to buy another Mack but Mr Kumnick had changed his mind for him. Mr Lowe said that he was looking at trading in his Mack CHR on a new truck that was not manufactured by Mack but that he was attracted to the truck because of the price Mr Kumnick quoted him. His evidence in cross-examination was that the trade-in price Mr Kumnick offered on the evening of 20 March 1998 was what made the truck “very interesting” to him.