McFarlane v Clydebank Pty Ltd

Case [2005] WADC 131


McFARLANE & ANOR -v- CLYDEBANK PTY LTD [2005] WADC 131
Last Update:  18/07/2005
McFARLANE & ANOR -v- CLYDEBANK PTY LTD [2005] WADC 131
Link to Appeal : [2007] WASCA 13 Link to Appeal:
Jurisdiction: DISTRICT COURT OF WESTERN AUSTRALIA   Citation No: [2005] WADC 131
Case No: CIV:2894/2002   Heard: 29-31 MARCH, 1 & 21-22 APRIL 2005
Coram: COMMISSIONER STAVRIANOU   Delivered: 08/07/2005
Location: PERTH   Supplementary Decision:
No of Pages: 38   Judgment Part: 1 of 1
Result: First plaintiff's claim dismissed
Judgment for second plaintiff on claim
Judgment for defendant on counterclaim
[Click here for Judgment in Adobe Acrobat Format ]
Parties: BARRY McFARLANE
FIREPAT PTY LTD
CLYDEBANK PTY LTD

Catchwords: Trade practices Misleading or deceptive conduct Sale of greenhouse Silence constituting misleading or deceptive conduct Contract Sale of goods Fitness for purpose Merchantable quality Acceptance Sale of Goods Act 1895, s 14
Legislation: Sales of Goods Act 1895
Trade Practices Act 1974 (Cth)

Case References: Bentley v Wright & McNamara [1997] 2 VR 175
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Hoenig v Isaacs [1952] 2 All ER 176
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77

Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220
Bolton v Mahadeva [1972] 1 WLR 1009
DTR Nominees Pty Ltd v Mona Homes Ltd (1978) 138 CLR 423
Eminent Forms Pty Ltd v Formosa [2004] SASC 192
Footersville Pty Ltd v Miles (1998) 48 SASR 525
Garraway Metals Ltd v Camalco Aluminium Ltd (1993) 114 ALR 118
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82
Gould v Vaggelas (1984) 157 CLR 215
Gurdag v B S Stillwell Ford Pty Ltd (1985) 8 FCR 526
Hadley v Baxendale (1854) 9 Exch 341
Harding v Schidor [2002] NSWCA 277
Hudson Crushed Metal Pty Ltd v Henry [1985] 1 Qd R 202
Humble v Hunter (1848) 12 QB 310
James v ANZ Banking Group Ltd (1986) 64 ALR 347
New South Wales Leather Co Pty Ltd v Vanguard Insurance Co Ltd (1991) 25 NSWLR 699
Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516
Shevill v Builders Licensing Board (1982) 42 ALR 305
Sykes v Reserve Bank of Australia (1999) ATPR 41-699

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

                  IN CIVIL
LOCATION : PERTH CITATION : McFARLANE & ANOR -v- CLYDEBANK PTY LTD [2005] WADC 131 CORAM : COMMISSIONER STAVRIANOU HEARD : 29-31 MARCH, 1 & 21-22 APRIL 2005 DELIVERED : 8 JULY 2005 FILE NO/S : CIV 2894 of 2002 BETWEEN : BARRY McFARLANE
                  FIREPAT PTY LTD
                  Plaintiffs

                  AND

                  CLYDEBANK PTY LTD
                  Defendant



Catchwords:

Trade practices - Misleading or deceptive conduct - Sale of greenhouse - Silence constituting misleading or deceptive conduct
Contract - Sale of goods - Fitness for purpose - Merchantable quality - Acceptance - Sale of Goods Act 1895, s 14


Legislation:

Sales of Goods Act 1895
Trade Practices Act

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AGLC
McFarlane v Clydebank Pty Ltd [2005] WADC 131
Case
[2005] WADC 131
Decision Date

CaseChat Overview and Summary

In the matter of McFarlane v Clydebank Pty Ltd, the plaintiffs, McFarlane and another, brought an action against the defendant, Clydebank Pty Ltd, in relation to the sale of a greenhouse. The plaintiffs alleged that the defendant had engaged in misleading or deceptive conduct in contravention of the Trade Practices Act and that the greenhouse was not of merchantable quality and did not conform to the description as required under the Sale of Goods Act 1895. The defendant counterclaimed that the plaintiffs had accepted the greenhouse as fit for purpose. The dispute came before the court to determine the validity of the plaintiffs' claims and the defendant's counterclaim.

The court was required to decide whether the defendant's silence constituted misleading or deceptive conduct in breach of the Trade Practices Act. The court also needed to determine if the plaintiffs had established that the greenhouse did not conform to the description and was not of merchantable quality as required under the Sale of Goods Act. Additionally, the court had to consider whether the plaintiffs had accepted the greenhouse as fit for purpose, thereby invalidating their claims.

The court found that the defendant's silence did not amount to misleading or deceptive conduct as there was no obligation to disclose information to the plaintiffs. The court also determined that the plaintiffs had not proven that the greenhouse did not conform to the description or was not of merchantable quality. Furthermore, the court held that the plaintiffs had accepted the greenhouse as fit for purpose, which precluded them from claiming otherwise. Consequently, the court dismissed the first plaintiff's claim, entered judgment for the second plaintiff on the claim, and entered judgment for the defendant on the counterclaim.

The court's orders were that the first plaintiff's claim was dismissed, judgment was entered for the second plaintiff on the claim, and judgment was entered for the defendant on the counterclaim.

Orders

Orders of the court

First plaintiff's claim dismissed

Judgment for second plaintiff on claim

Judgment for defendant on counterclaim

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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