Nuform Constructions Pty Ltd v Curtin
[2002] WADC 4
•17 JANUARY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NUFORM CONSTRUCTIONS PTY LTD -v- CURTIN & ANOR [2002] WADC 4
CORAM: COMMISSIONER GREAVES
HEARD: 13 DECEMBER 2001
DELIVERED : 17 JANUARY 2002
FILE NO/S: CIV 851 of 1999
BETWEEN: NUFORM CONSTRUCTIONS PTY LTD (ACN 009 179 480)
Plaintiff
AND
PAUL ARNOLD CURTIN
DEBBIE ROSE CURTIN
Defendants
Catchwords:
Sale of goods - Plaintiff purchased 1800 cubic metres of clay from defendants - No express representation about fitness of clay for plaintiff's purposes - No implied warranty - Clay not in course of defendants' business to supply - Plaintiff inspected clay before purchase
Legislation:
Sale of Goods Act 1895, s 14(i)
Fair Trading Act 1987, s 9, s 10
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff: Mr D L Clyne
Defendants: Mr M De Kerloy
Solicitors:
Plaintiff: J D Finlay & Co
Defendants: Mony De Kerloy Solicitors
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
COMMISSIONER GREAVES: In February 1998, the plaintiff entered into a contract with the Water Corporation for the construction of stage 2 of a waste water treatment plant at Halls Head, Mandurah. It is common cause in this action that the plaintiff was required to place and compact a clay liner in sludge lagoons, numbers 3 and 4, at the waste water treatment plant (see Exhibit 8, item 6.3). The plaintiff was also to test the clay liner (see Exhibit 8, item 12.2).
The clay liner material and construction and the testing of the clay liner was specified in cl C7.4 (Exhibit 2). It read:
"C7.4.1Liner Material and Construction
The clay liner shall be placed on the base and inside banks of Sludge Lagoon No 3 and 4 embankment to the lines and levels shown on the Drawings. All clay lining material shall conform to the following minimum criteria:
•Percentage fines passing a 75 micron sieve greater than 25%
•Liquid Limit less than 70
•Plasticity Index greater than 15
•Emerson Class Number 5 to 6
The clay liner shall be placed in a maximum of 150mm layers and compacted to achieve 98% of maximum dry density at optimum moisture content, in accordance with AS 1289 using standard compaction.
Special care shall be exercised with embankments to achieve an equivalent low permeability seal to the base liner, design soil densities, erosion resistance and resistance to the threat of slumping/piping failure (on slope – this may involve placement of extra fill and cut back to design dimensions).
C7.4.2 Testing
A minimum of two (2) tests on the material from the proposed source of clay liner material shall be arranged for by the Contractor, carried out by a NATA registered laboratory in accordance with AS 1289. Each sample shall be taken from a different location of the proposed area to be excavated within the clay pit. The tests shall confirm that:
•the clay material satisfies the requirements of Clause C7.4.1.
•the laboratory permeability of the material, when remoulded to 98% of maximum dry density at optimum moisture content, in accordance with AS 1289 using standard compaction, is equal to or less than 10‑9 m/sec.
Test results shall be approved by the Superintendent before any clay material is excavated from the source.
The Contractor shall arrange for compaction testing to be carried out during construction to confirm that the placement and compaction of the clay liner meets the requirements of Clause C7.4.1. Tests at four locations in each lagoon embankment and the base shall be carried out, the locations being selected by the Superintendent. All tests shall be performed by a NATA registered laboratory in accordance with AS 1289."
On 14 March 1998, the plaintiff placed an advertisement in the West Australian Newspaper for 1800 cubic metres of clay liner. The defendant, Mr Paul Curtin, rang the plaintiff on 16 March 1998 in answer to the advertisement and spoke to Mr Frank Turibaka. Mr Curtin told Mr Turibaka he knew where there was some clay and he would find out whether it was for sale. Mr Curtin spoke to Mr Turibaka again on 17 March 1998 to tell him the clay was for sale. Mr Turibaka told Mr Curtin he required clay which would comply with the specification Exhibit 2 and sent a copy of that specification to Mr Curtin on 18 March 1998. Some discussion occurred between Mr Turibaka and Mr Curtin about the availability of existing test certificates for the clay.
On 23 March 1998 Mr Curtin faxed his quotation to Mr Turibaka, (Exhibit 3), which in part read as follows:
"Re Clay Supply
Copies of test certificates attached. Physical samples to be delivered to you ASAP. Supply and delivery: 1800 cubic metres of clay to Water Authority Treatment Station, Halls Head WA. Price: $15.50 per cubic metre making a total of $27,900."
Five existing test certificates were attached to the quotation. At the request of Mr Turibaka, Mr Curtin arranged to supply a physical sample of the clay but before the sample could be exchanged, Mr Turibaka asked Mr Curtin to arrange for him and a representative of the Water Corporation to inspect the clay deposits at the property of Mr Gordon McLean in Mundijong. Mr Turibaka attended with Mr Arnold Butler, the Water Corporation Works Inspector, on 31 March 1998 where they inspected the clay with Mr Curtin and Mr McLean. The evidence of Mr Butler was that the inspection of the clay deposits occurred after which he told Mr Turibaka the clay should not be delivered to the water treatment plant until Mr Turibaka had obtained test results for the clay in accordance with Exhibit 2. Mr Butler gave evidence he inspected the clay and pointed out to the plaintiff and defendant the clay was dry on the surface and wet underneath and said:
"You know, if you send it down like that it won't be any good to us because we don't need it wet and dry. We need it virtually in its natural state, because we haven't got room at the site to actually mix it or to dry it out before we use it. We need to be able to get it out of the truck and roll it…"
In cross‑examination, Mr Butler said that following the inspection, he continued to ask Mr Turibaka for test results in accordance with Exhibit 2. The evidence is no such results were produced before the clay was delivered to the water treatment plant and installed. The evidence is of subsequent tests which revealed the clay was Emerson Class 1 and therefore not in accordance with the specification, Exhibit 2.
The plaintiff's case
The case for the plaintiff is that Mr Turibaka expressly made known to Mr Curtin the particular purpose for which the plaintiff required the clay for use as an impermeable liner for the base and banks of the sludge lagoons, for which purpose the clay should comply with the Water Corporation specification (Exhibit 2).
The evidence of Mr Turibaka is Mr Curtin told him during the inspection at Mundijong the clay was suitable for the purpose and in accordance with the Water Corporation's specification.
The case for the plaintiff is, therefore, the defendants warranted the clay would be reasonably fit for the purpose. In the alternative, the plaintiff claims the conduct of the defendants was misleading or deceptive conduct in trade or commerce within the meaning of s 10 of the Fair Trading Act 1987.
The case for the defendants
The case for the defendants and the evidence of Mr Curtin is that he made no statement that the clay was suitable for the plaintiff's purposes. Mr Curtin gave evidence he knew the plaintiff required the clay to line a lagoon. He said Mr Turibaka told him the plaintiff was required to supply clay in accordance with the Water Corporation specification (Exhibit 2). He said Mr Turibaka told him the plaintiff had to test the clay. In cross‑examination, he said at the request of Mr Turibaka he obtained the test/tests certificates attached to Exhibit 3 from Mr McLean to save Mr Turibaka the trouble of testing the clay, if it was not suitable. The plaintiff thereafter inspected the clay at Mr McClean's property.
Conclusions
I accept the evidence of Mr Butler that he told Mr Turibaka and Mr Curtin the clay should not be delivered to the water treatment station until the clay had been tested in accordance with the specifications. In the light of Mr Butler's evidence, it is very unlikely Mr Curtin told Mr Turibaka the clay was in accordance with the specifications and suitable for the plaintiff's purpose. I find Mr Curtin knew the purpose for which the plaintiff required the clay but made no statement the clay which he offered to supply conformed to the specification or was suitable for the purpose. I find the plaintiff failed to test the clay in accordance with the specifications before it accepted the defendants' quotation. I also find clay was not goods which it was in the course of the defendants' business to sell.
On these facts, I conclude the defendants made no express representation about the fitness of the clay for the plaintiff's purposes. I also conclude no implied warranty arose under s 14(i) of the Sale of Goods Act 1895, because the clay was not goods of a description which it was in the course of the defendants' business to supply and because the plaintiff inspected the clay before accepting the defendants' quotation. It follows the plaintiff's claim in contract, negligence and under the Fair Trading Act 1987 fails.
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