Richard v Gendore Enterprises Pty Ltd - [2004] NSWCA 116

Reported Decision:
(2005) ATPR 42-054

Court of Appeal

CITATION: RICHARD v GENDORE ENTERPRISES PTY LTD & ANOR [2004] NSWCA 116

HEARING DATE(S): 5 April 2004

JUDGMENT DATE:
14 April 2004

JUDGMENT OF: Sheller JA at 1; Hodgson JA at 30; Ipp JA at 35

DECISION: Appeal dismissed with costs.

CATCHWORDS: MISLEADING AND DECEPTIVE CONDUCT - NEGLIGENCE - Incorrect tyre size information in harvester manual - tyre size relied on by appellant and injury resulted when replacement tyre exploded - whether importer and seller had duty to inspect manual for error - whether failure of trial Judge to deal with misleading and deceptive conduct claim under Trade Practices Act 1974 and Fair Trading Act 1987

LEGISLATION CITED: Fair Trading Act 1987
Sale of Goods Act 1923
Trade Practices Act 1974

CASES CITED: Gardam v George Wills & Co Ltd (1988) 82 ALR 415
Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135
Laundess v Laundess (1994) Aust Torts Reports 81-316
Yorke v Lucas (1985) 158 CLR 661

PARTIES :
John Richard - Appellant
Gendore Enterprises Pty Ltd - First Respondent
Rod Frahm t/as Rod Frahm & Co - Second Respondent

FILE NUMBER(S): CA 40231/03

COUNSEL: A S Morrison SC/F L Austin - Appellant
S G Campbell SC/M F Galvin - First Respondent
C R R Hoeben SC - Second Respondent

SOLICITORS: Lyons & Lyons - Appellant
Sparke Helmore - First Respondent
Curwood & Partners - Second Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 9185/00

LOWER COURT
JUDICIAL OFFICER : Certoma ADCJ

CA 40231/03
DC 9185/00

SHELLER JA
HODGSON JA
IPP JA

RICHARD v GENDORE ENTERPRISES PTY LTD & ANOR

Gendore, the first respondent, had some time before 1993, imported a TAARUP 605B forage harvester from Denmark where it was manufactured. Gendore sold the harvester to a dealership in Western Australia. The second respondent, Frahm, acquired the second-hand harvester on 21 May 1993 and sold it in September 1993 to certain silage contractors. In 1995, this purchaser arranged for Frahm to sell the harvester on consignment. Frahm sold the second-hand harvester to the appellant on 14 November 1995.

The harvester when supplied, was found by the appellant to be missing an electrical fitting which controlled the direction of the chute and also an operations manual. The appellant contacted Frahm and Frahm located a manual in his spare parts store, which he then copied and forwarded to the appellant. Neither of the respondents had any involvement in the production of this manual.

The manual described standard tyres for the harvester as 11, x 15, when in fact, a 15.3 inch tyre was required. On 14 March 1996, after consulting the operations manual, the appellant attempted to replace a blown tyre on the harvester with a used 15 inch Landcruiser tyre. When the appellant started to inflate this replacement tyre it blew out and injured his right arm. It was alleged that, in December 1999, as a result of this right arm injury, the appellant fell some six feet…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 116
Decision Date: 14 April 2004

CaseChat Overview and Summary

The appellant, Richard, brought proceedings against the respondent, Gendore Enterprises Pty Ltd, alleging negligence and misleading or deceptive conduct. Richard suffered injury when a replacement tyre for a harvester exploded. The injury occurred after Richard relied on incorrect tyre size information contained in the harvester's manual, which had been imported and sold by Gendore. The appeal concerned the trial judge's failure to address the claims under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW).

The primary legal issues before the Court of Appeal were whether Gendore owed Richard a duty of care to inspect the manual for errors, and whether Gendore engaged in misleading or deceptive conduct by providing the incorrect tyre size information. The court was required to determine if Gendore's actions, or omissions, constituted a breach of duty or contravened the relevant consumer protection legislation.

The Court of Appeal dismissed the appeal. It held that Gendore, as an importer and seller of the harvester, did not owe a duty to inspect the manual for errors. The court reasoned that there was no evidence to suggest that Gendore knew or ought to have known of the inaccuracy in the tyre size information. Furthermore, the court found that Gendore had not engaged in misleading or deceptive conduct. The provision of the manual, which contained an error not known to Gendore, did not, in the circumstances, amount to conduct that was misleading or deceptive under the relevant legislation.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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

Full text does not contain this section.

CITATION:	RICHARD v GENDORE ENTERPRISES PTY LTD & ANOR [2004] NSWCA 116
HEARING DATE(S):	5 April 2004
JUDGMENT DATE:	14 April 2004
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 30; Ipp JA at 35
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	MISLEADING AND DECEPTIVE CONDUCT - NEGLIGENCE - Incorrect tyre size information in harvester manual - tyre size relied on by appellant and injury resulted when replacement tyre exploded - whether importer and seller had duty to inspect manual for error - whether failure of trial Judge to deal with misleading and deceptive conduct claim under Trade Practices Act 1974 and Fair Trading Act 1987
LEGISLATION CITED:	Fair Trading Act 1987 Sale of Goods Act 1923 Trade Practices Act 1974
CASES CITED:	Gardam v George Wills & Co Ltd (1988) 82 ALR 415 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135 Laundess v Laundess (1994) Aust Torts Reports 81-316 Yorke v Lucas (1985) 158 CLR 661
PARTIES :	John Richard - Appellant Gendore Enterprises Pty Ltd - First Respondent Rod Frahm t/as Rod Frahm & Co - Second Respondent
FILE NUMBER(S):	CA 40231/03
COUNSEL:	A S Morrison SC/F L Austin - Appellant S G Campbell SC/M F Galvin - First Respondent C R R Hoeben SC - Second Respondent
SOLICITORS:	Lyons & Lyons - Appellant Sparke Helmore - First Respondent Curwood & Partners - Second Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	9185/00
LOWER COURT JUDICIAL OFFICER :	Certoma ADCJ