Salfinger v Royal Newcastle Aero Club
[2004] FMCA 491
•9 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALFINGER v ROYAL NEWCASTLE AERO CLUB | [2004] FMCA 491 |
| TRADE PRACTICES – whether respondent engaged in misleading and deceptive business practices – whether respondents in breach of ss.51, 52 and 74B of Trade Practices Act – where applicant relying on representations as to suitability of aircraft travelled to Newcastle to inspect it – whether applicant should be compensated for costs associated with travel – where applicant’s affidavit failed to set out what representations were made by respondents – where applicant consequently had to rely on representations contained in affidavits of respondents. |
Trade Practices Act 1974 (Cth), ss.51, 52, 74B
| Applicant: | RODERICK NEIL SALFINGER |
| First Respondent: | ROYAL NEWCASTLE AERO CLUB ABN 79 000 021 042 |
| Second Respondent: | PAUL KERKHOFF |
| File No: | MZ 1221 of 2003 |
| Delivered on: | 9 August 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 August 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr B Burke |
| Solicitors for the Respondent: | Peter Evans & Associates |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs to be assessed in accordance with Part 21 Rule 21.10(a) and Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MZ 1221 of 2003
| RODERICK NEIL SALFINGER |
Applicant
And
| ROYAL NEWCASTLE AERO CLUB ABN 79 000 021 042 |
First Respondent
| PAUL KERKHOFF |
Second Respondent
REASONS FOR JUDGMENT
These proceedings have been brought by the applicant seeking declarations from the court:
a)That the first respondent participated in misleading and deceptive business practices in breach of s.52 of the Trade Practices Act 1974 (the “Act);
b)That the first respondent participated in and caused unconscionable business practices in breach of s.51 of the Act.
c)That the second respondent participated or allowed to occur deceptive, misleading and unconscionable business practices in breach of s.74B of the Act;
d)A determination and order as to damages suffered by the applicant due to the actions and failures to act properly of the first and second named respondents in respect to the breaches of the Act.
The evidence of the applicant is contained in an affidavit dated 6 November 2003. A considerable portion of that affidavit was struck out, the balance reads as follows:
“On about 3 March 2003 I made contact with Mr Andrew Charlton (Mr Charlton) who represented himself to be the owner of a twin engined Piper Aerostar Aircraft, registered VH-UYY (“the aircraft”). Mr Charlton told me that he wanted $150,000.00 for the aircraft. He then sent me a specification sheet of the aircraft. On or about 4 March 2003 I called Mr Charlton to discuss possible payment terms and price.
On about 14 March 2003 the applicant contacted the first named respondent by telephone and requested an independent pre purchase inspection of an aircraft by the call sign of VH-UYY (the “Aircraft”) which was located at the Russell Field Airport in Rutherford. On or about 31 March 2003 the first respondent contacted the applicant by phone at the applicant’s office in Melbourne.
Based on the representations and warranties made by the first and second respondents the applicant then made arrangements to travel to visit the aircraft and to finalise the purchase. When the applicant arrived at the Russell Field Mr Charlton invited me to have a test flight of the aircraft. After landing the applicant found amongst other things, that the main rear rudder hinge had been totally destroyed by corrosion and that the wings had been gouged and rendered unsafe by the action of an angle grinder used by someone who had tried to remove serious corrosion from the main wing spar. The damage to main wing spar was not apparent to me until after we landed.
The applicant also maintains that the respondent had breached ss.51, 52 and 75B of the Trade Practices Act 1974 in entering into deceptive and misleading and unconscionable conduct.
The damage that I have suffered in direct out of pocket expenses result from the cost of air travel, loss of time, phone and fax costs.”
In addition to that affidavit evidence the applicant tendered without objection a number of documents including an affidavit of Mr Paul Douglas Kerkhoff the second respondent and an affidavit of Robert Edward Britten, the general manager of the first respondent. It can be seen clearly that the affidavit of the applicant as admitted into evidence does not set out a single representation made to him. Without more the applicant’s case would have to have been dismissed.
The applicant therefore relies entirely on the representations which he says arise out of the evidence of Mr Kerkhoff and Mr Britten. Before considering that evidence it is appropriate to say that the case has been run on the basis that Mr Salfinger is claiming that as a result of the representations made to him by Mr Kerkhoff he travelled from Melbourne to Newcastle to inspect the aircraft which he then discovered to be unsuitable. The loss which he claims would appear to be the cost of that travel, his time cost and a loss of chance claim in respect of the sale of the aircraft. However, during the course of interlocutory proceedings Mr Salfinger indicated that he was dropping the loss of chance claim. He repeated words to that effect before me today and I do not believe the claim was pressed. Mr Salfinger did attempt to tender some documents relating to this part of the claim but they were rejected on the grounds that the documents did not appear to be business records and constituted evidence that should have been put on by way of affidavit in accordance with the previous orders of the court.
Since Mr Salfinger has not himself deposed to what was said to him he must accept the words contained in Mr Kerkhoff’s affidavit:
“[14] I then rang Mr Salfinger. I said to him “I haven’t inspected the whole aeroplane. I found a fair bit of corrosion. It’s on the inside of the fuselage skin, it’s in the aft baggage area and the nose locker, in the main gear wheel wells and at location on the wings. I also saw several rivets on the left and right hand engine nacelles. I also pulled off some panels inboard of the engine nacelles and I noticed some corrosion on the wing spars. There are doublers on the wings to compensate for the corrosion on the wing spars. Look the aeroplane is overall pretty rough and you would have to spend a lot of money on it. Only if you can pick it up very very cheap it might be worth buying.”
[15] He said: [Mr Salfinger] “I will still come up anyway and do a test flight with Andrew Charlton.”
It is Mr Salfinger’s case that the words which were then spoken did not adequately describe how bad the aircraft was. Mr Salfinger points to the affidavit of Mr Britten which indicated that Mr Britten had told Mr Kerkhoff to stop work on the examination because Mr Kerkhoff had told Mr Britten that “the aircraft was a piece of crap”. Mr Kerkhoff had also told Mr Britten that he had found angle grinder scour marks on the fuselage which indicated that someone had taken an angle gringer to the fuselage in order to try and mask corrosion. Mr Britten had told Mr Kerkhoff “To tell Salfinger what you had found.” Mr Salfinger argues that this did not occur.
What Mr Salfinger did not do was to plead and give evidence of the reliance which he placed upon the words that Mr Kerkhoff used to him and the effect that the whole story, if told to him, would have had. At no stage other than in submissions i.e. not in evidence, does Mr Salfinger indicate that if he had known that the angle grinder had been used he would not have come up.
Mr Salfinger also draws attention to other matters contained in Mr Kerkhoff’s affidavit which would indicate that after the test flight further, and even more serious, faults were found with the fuselage particularly around the tail section. Mr Salfinger appeared in his submissions to be arguing that he had been misled in this regard as well. But it is clear from the affidavit of Mr Kerkhoff that he did not inspect the whole of the aircraft and Mr Salfinger could not expect that he had. However, there seems to me to be some element of combination within Mr Salfinger’s mind of all the faults in relation to the aircraft and not just those about which he was advised at the telephone. Thus his view as to what might have caused him not to come up appears not to be restricted solely to the failure to be told about the angle grinder marks.
The Federal Magistrates Court is a court mandated to undertake lower level matters under the Trade Practices Act. But this does not mean that parties who appear in the court need not produce evidence, connect that evidence to the statutory breaches they are alleging and satisfy the court of their reliance upon those breaches which caused them to suffer loss and damage that is also established. The applicant in this case has done none of these things. He was given considerable opportunity to do so in the unusually large number of directions hearings in the case. He is quite open about the fact that he could have obtained legal advice but decided that he was able to bring these proceedings himself. This was a grave mistake. He has misunderstood the Trade Practices Act and he has misunderstood the requirement upon a plaintiff to prove his case. Mr Salfinger’s motives for bringing these proceedings may be laudable. Dangerous aircraft should not be allowed to fly. But there are other ways of preventing this.
The applicant has not proved his case. There must be judgment for the respondent. The applicant must pay the respondent’s costs which should be assessed in accordance with Part 21 Rule 21.10(a) and Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
0
0
0