MODERN TRANSPORT ENGINEERS LTD -v- HEVI HAUL AUSTRALIA PTY LTD [2001] WASCA 377

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 377
Court:	THE FULL COURT (WA)	Published:	27/11/2001
Case No:	FUL:149/2001	Heard:	15 NOVEMBER 2001
Coram:	WALLWORK J ANDERSON J	Delivered:	15/11/01
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MODERN TRANSPORT ENGINEERS LTD HEVI HAUL AUSTRALIA PTY LTD
Catchwords:	Courts and Judges Jurisdiction Contract made outside Western Australia Contract to be partly performed in Western Australia Breach in Western Australia Grant of leave to effect service in New Zealand upheld
Legislation:	Rules of the Supreme Court, O 10 r 1
Case References:	Nil Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 Bonython v Commonwealth (1950) 81 CLR 486 Crozier, Stephens & Co v Auerbach [1908] 2 KB 161 Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 Koranna Nominees P/L v Roberts, unreported; FCt SCt WA; Library No 4289; 15 October 1981 Mendelsohn-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 Nathan v Seitz (1888) 4 TLR 570 Pallot v Harrison, unreported; SCt WA; Library No 950261; 12 May 1995 Summit Homes v Lucev (1996) 16 WAR 566 Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31 Wancke v Wingren (1889) 58 LJ QB 519 Water Board v Moustakas (1988) 180 CLR 491

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MODERN TRANSPORT ENGINEERS LTD -v- HEVI HAUL AUSTRALIA PTY LTD [2001] WASCA 377 CORAM : WALLWORK J

ANDERSON J

HEARD : 15 NOVEMBER 2001 DELIVERED : 15 NOVEMBER 2001 PUBLISHED : 27 NOVEMBER 2001 FILE NO/S : FUL 149 of 2001 BETWEEN : MODERN TRANSPORT ENGINEERS LTD

Appellant

AND

HEVI HAUL AUSTRALIA PTY LTD

Respondent

Catchwords:

Courts and Judges - Jurisdiction - Contract made outside Western Australia - Contract to be partly performed in Western Australia - Breach in Western Australia - Grant of leave to effect service in New Zealand upheld

Legislation:

Rules of the Supreme Court, O 10 r 1

(Page 2)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr C Pruiti

Respondent : Mr K E F Yin

Solicitors:

Appellant : Pullinger Readhead Stewart

Respondent : Murcia & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Bonython v Commonwealth (1950) 81 CLR 486
Crozier, Stephens & Co v Auerbach [1908] 2 KB 161
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564
Koranna Nominees P/L v Roberts, unreported; FCt SCt WA; Library No 4289; 15 October 1981
Mendelsohn-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366
Nathan v Seitz (1888) 4 TLR 570
Pallot v Harrison, unreported; SCt WA; Library No 950261; 12 May 1995
Summit Homes v Lucev (1996) 16 WAR 566
Tycoon Holdings Ltd v Trencor Jetco Inc (1992) 34 FCR 31
Wancke v Wingren (1889) 58 LJ QB 519
Water Board v Moustakas (1988) 180 CLR 491

(Page 3)

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Master Sanderson in which he refused to vary a decision of Master Bredmeyer giving leave under O 10 r 1(1) to serve process out of Western Australia and in New Zealand. We were invited to deal with the appeal as a hearing de novo, which we have done.

2 The case concerns the purchase of a transporter comprising, as we understand the evidence, a low loader and dolly. The transporter had been in Queensland for demonstration purposes and it was, at the time of the contract for purchase, in Melbourne.

3 The purchase was made by telephone but it reasonably plainly appears that delivery of the transporter as it was then comprised, that is, the low loader and the dolly, was to be in Melbourne.

4 The purchaser was in Western Australia and the vendor was in New Zealand. The evidence shows that the transporter was in fact paid for while the transporter was in Melbourne and delivery was in Melbourne in the sense that the purchaser paid for its transport to Western Australia. The purchaser assumed responsibility for it really from the point of delivery in Melbourne.

5 It was a condition of the contract that the dolly frame would be changed at no extra charge at the election of the purchaser. The background to this is that when the purchaser inspected the low loader in Melbourne the purchaser considered that the dolly might be too long for his requirements and an arrangement was made, should that turn out to be the case, that the dolly frame would be changed over to a different kind of dolly frame, a frame with different dimensions.

6 When the transporter, that is the low loader and the dolly, arrived in Western Australia, the purchaser decided that the dolly frame was too long for his requirements and elected to take advantage of the special condition in the contract that it be changed over. That special condition is reproduced at page 29 of the appeal book and is in the following terms:

"We [that is the vendor] will change the dolly frame out in the next couple of months to one the same as supplied to Link Lowloaders at no extra charge."

7 What happened was that the vendor sent over a different dolly frame and it was swapped and the old one remained in Western Australia. Nothing express was discussed in respect of freight and the like, but in fact the vendor was content and (it would appear from the affidavit

(Page 4)

material) had always been content from the very outset of the contract to effect a delivery of the changeover dolly free of charge in Western Australia.

8 In our opinion, from all of this it plainly appears that the parties had agreed, if not expressly at least impliedly, that should the dolly which had been purchased in Melbourne turn out to be unsuitable the vendor, that is, the appellant defendant, would deliver to the purchaser (the respondent plaintiff) in Western Australia a changeover dolly.

9 On the face of it there would be an implied term of that contract relating to the changeover dolly that that dolly would be suitable for its purpose. It seems to us therefore that there was plainly a contract, perhaps collateral to the main contract, but, if not, part of the main contract, that there would be at the election of the purchaser the supply and delivery in Western Australia of a suitable dolly.

10 There is evidence that the dolly which was supplied and delivered in Western Australia was not suitable for its purpose. The respondent plaintiff's claim is that the dolly was not suitable for its purpose when it was delivered in that a number of its components failed during the course of ordinary use. If that case is ultimately made out, prima facie there was a breach in Western Australia of a contract made outside Western Australia. In our opinion, this is therefore a case in which sufficient is shown to justify the making of an order under O 10 r 1(f) permitting service of the writ out of Western Australia and in New Zealand.

11 It follows from this that the decision of Master Bredmeyer was correct and the decision of Master Sanderson not to vary the order of Master Bredmeyer was also correct.

12 These are the reasons why the Court would dismiss this appeal.

In this case, Modern Transport Engineers Ltd, the appellant, brought an action against Hevi Haul Australia Pty Ltd, the respondent, concerning a contract for the sale and supply of a mobile crane. The dispute centred around whether the Federal Circuit Court of Australia had jurisdiction to hear the case, given that the contract was made outside Western Australia and was to be partly performed in Western Australia. The appeal from the Federal Circuit Court was dismissed by the Full Court of the Federal Court of Australia.

The legal issues that needed to be resolved included the jurisdictional reach of the Federal Circuit Court over contracts made outside Western Australia but involving performance in Western Australia, as well as the appropriateness of granting leave to effect service of the originating process in New Zealand. The central question was whether the court's jurisdiction could be established based on the location of the contract's breach in Western Australia and the extent to which the contract was to be performed within that jurisdiction. Additionally, the court examined whether the respondent's application for leave to serve the originating process in New Zealand was justified and whether it complied with the rules governing such applications.

The court considered the relevant jurisdictional provisions under the Federal Circuit Court of Australia Act and found that the court had the necessary jurisdiction to hear the case. It was determined that the contract's breach in Western Australia was sufficient to confer jurisdiction upon the court. Furthermore, the court upheld the grant of leave to effect service in New Zealand, finding that the respondent had demonstrated a proper and sufficient cause for the application. The Full Court dismissed the appeal, confirming the lower court's decisions on jurisdiction and service of process.

The final orders of the court were to dismiss the appeal brought by Modern Transport Engineers Ltd against the decision of the Federal Circuit Court of Australia. The court upheld the jurisdiction of the Federal Circuit Court over the contract dispute and the grant of leave to serve the originating process in New Zealand. This outcome confirmed that the Federal Circuit Court could hear the case concerning the contract for the sale and supply of the mobile crane, as it involved a breach in Western Australia and was partly to be performed within that jurisdiction.

Modern Transport Engineers Ltd v Hevi Haul Australia Pty Ltd

MODERN TRANSPORT ENGINEERS LTD -v- HEVI HAUL AUSTRALIA PTY LTD [2001] WASCA 377

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