Wenter, M.J. v A.F.I Pty Ltd

! 367

2. !

P-

I	r
L

PTNUJS J.

any

e-lent,

p re i5 r the

evidence q iven

as t o

1 3 Ju iy

and

Sentember.

4 .

I n shnrc.

a m sa t i s f ied ,

and

Indeed

there

can

t -e .a l ly

k81p

very l l t t l e	doub t , that	t h e	c o n d i t i o n	of the vehxcl?	was .:et-:!
poor.

5 .

as 1s demonstrated bp the evidence i , e r ~ , cannot

rulfil

the

statutory

descsiptiun.

I hold

that

the

vehlcle

was

not

S €

merchantable quality.

The two ercclusory conditions It1 s.71(1! of the Trzd?

Practices Act

are, flrstly, chat the.-e 1 s to

be no liability as

regards defects specifically drawn to the consumer's attentlon

before the contract

is made

and, secrjndly, there is to be no

liahlllty

as to defects r.7hich an

esaminatlon

should

have

revealed. It seems to me som?wictc c~~rlous

that the

applicant,

who I thought was an honest vltness. did not appreclaEe how bad

the vehicle was. MO doubt lt was FErrectly good when ne57, h t there comes a time in the life of a mocnr vehicle when it is due tc bp "put o u c to graze", and I suspect that this vehicle had

reached chat point some tlme

before, and the cosmetic attempts

dlsgulse

its

deflclencles

may have

deluded

the

appllcant.

Howver that may be, th?re 1 s really no suqgest~on

on che part of

the respondent that

it was

obvlouslg cleflcient qt-

that defects

were dra~7n to the attention of the appllcant. Although

L wnuld

have been inclined to suspect that

Wenter. the applicant. musL

have thought, the vehlcle vas not all It seened, there is no foundation in the evldence for holding elther of the conditlons nlentloned in s.71(1), C7hlCh mlqht exclude llabillty, t o ~ ~ 1 s t . I

therefQre hold that the vehlcle was

not or merchantable cpa1ity

and that it was aE the tlme only sultable

for the wrecker. T'he

evidence which was

q lven bp

M r Harradlne, on behalf of

the f i rs t ;

respondent, was

I-n ths

effect

L h a t the vehlcle

iJaS in

~~'lc7d

condition. and that he

k n m it tc

be 5'3.

Harradine W ~ S ,

superficlally, qnte an

Impressive witness. Fie seemmi frank and

6 .

amiable .

but

I r e q r e t that I cannnt ail;l?pt

h i s evldence m

t k a t

r e spec t .

I ndeed ,

q u i t e

s a t l s f l e d

r h a t

I t

1 s

n o t

c o r r p c t .

The

o t h e r

f a c t u a l

d i s p u t e

1s one with

r-lhlch I have

had

d i f f i c u l t y , a n d t h a t

1 s

the ques t lon whether

the vehlc le

was

misrepresented .

A s Mr

TGnug,

counsel

f o r the f l t - s t respondent.

t - luh t ly sald,

the mat te r

comes down ro

s e t t i n q the word

H a r r a d i n e

a g a i n s t

h a t

Wenter.

the a p p l l c a n t .

note that

t h e

a p p l i c a n t

s a i d

i n his

evldence,

nor

t h a t

I t was

d e f l n l t e l y

a s s e r t e d t o

h e a 1975

model ,

ra ther ,

that

?<L- Harradine slalmed

tha t

t houuh t

i t was a

1975 model.

The

vidence

c l e a r ,

t h e par t of

t he r i r s t respondent ,

that

was

knmm no t

t o

1 4 7 5 model

and known

t o be a

1 9 7 1 model.

Havinu i n mind the

heavy

O ~ U S of

proof ,

s t i l l f e e l

s a t i s f l e d ,

a n d

th1nl.r

should

f lnd ,

and

d o

f i n d ,

t h a t

what

t h e

a p p l i c a n t

says

a b o u t

t h l s

matter i s

tru?.

I be l l eved It when he

s a i d i t t o me

and

Harradine’s

ldence

has

no t

dispelled

t h a t

b e l l e f .

The a p p l l c a n t i s not a h iqh ly

articulate man,

~ L l e a s t

appeared

when

gave

evidence,

but

seemed t o

p e r f e c t l y

h o n e s t .

no t

be l l eve

lnven ted

t he

s to ry

and

t h i n k that he

would

have

regarded

the model year

as a mat ter of

some Importance.

I t 15,

cou r se ,

poss ib l e

t ha t

f4r

Harradine

has

f o r g o t t e n that

h e

t o l d

t h e

a p p l i c a n t

t h a t

i t w a s

1975

model.

If he d i d do

so , however,

and

I have

held

thct

d id ,

then

i t i s

d l f f l c u l t

t o

a v o l d

t h e

conclusion t h a t

lc w a s

r e p r e s e n t a t l n n

made

ar;

least

r eck le s s ly

because ,

as I.lr Harradine

I	says, t h e	t r u t h	r.7as	e a s i ly a s c e r t a l n a b l e	by	a person	who	knew
I

whet-e

look and

bnthered

t o l m k .

I t aprjears

t o me,

the re to re ,

t i l a t

the v e h i c l e

was

not

o n l y

merchanLable

not

chere

yual l ty

but

S J Z S

mis rep resen ta t lon

made,

l e a s t

r e c k l e s s l y ,

t o i t s

model

year ,	and	that the	app l i can t	succeeds	on bo th less of h i s claim.	I
..

There was

d i s c u s s l s n

c lu r lnq the cout S?

th? addres ses

as t o

the

consequences

t ha t , and a s

I understand

r ? e m a t t e r ,

r t v a s

agreed

b e t w e n

c o u n s e l

for

t h e

a p p l l c a n t ,

Flr

Nrarris,

and

S .

c o u n s e l

f o r

t h e

f i r s t respondent ,

T;i lag, that

the r e s u l t of

such

f i nd ings

have

ind lca ted

~ ~ 8 i . 1 l d

as f r . 1 1 0 ~ ~ :

nam?ly,

t h a t

the

a p p l l c a n t

would

have

]udqment

a q a r n s t

t h e

f i r s t

r e sponden t

fo r

th? sum of

$3,150, w l t h

I n t e r e s t

t h e

d a t e

the

judgment.

n r l t h m e t l c ,

I n t e r e s t

a t 12%, which seems

t o

conceded

t o

b e

r e a s o n a b l e

f i ? u r r ,

from

5 July i984

t n 26

J u l y 1785, 1s In the sum of $404 .80

There

wlll

t he re fo re

judgment

i n favour

tkz

a p p l i c a n t

a g a i n s t

h e

f i r s t respondenc

t h e sum

~f $3,594.8'3,

with	c o s t s .

the

second

respondent .

i t 1s

c l e a r that <her? is

no personal f a u l t .

There 1 s

no d ispute

tha t -

the

llabllrty as t o

the cond l t ion of

t he

veh ic l e

does

n n t

f l o r r

on.

b u t

t h e

I l a b i l r t y

t he

o the r

leg goes

through tcj the second

respondent

by v1t-r:cIe

of t he

provlslons of s . G

.zf t h e Hir?

Purchase Act 1959 of the

S t a t e of

Q w e n s l a n d \ h i c h .

so f z r

r e l N a n t ,

t Fads

follo7zJs:-

"EV?t-!r

r e p r e s e n t a t i o n

. . .

made

t o

th? h l r e r

prospecrlve

hl rer ,

whecher

o r a l o r i n w r ~ t l n q , by

t h e

. . .

d e a l e r o r

any

p e r s o n

a c t i n g

behalf

t he

. . .

dealer, i n

connect ion

w i t h

or I n

t h e

course

of neootlatlons l?adInq to the encering

Into of a hire-purchase agrreenent. shall confer on

the hirer -	i
I

( a ) As agsinst the

owner - the

sam? rlghts . . .

as the iilrer would

have

had

li the

representation ... had been made bg

an agent

of	the owner . . . "

Since the

transaction

here

culminated

a hlre purchase

agreement and the second respondent is the

"owner", that

sectlon,

I have

said, appears to cover the claim. Therefore. the

damages as against the second respondent wlll be the same.

It 1 s

not absolutely

clsar to me thac the second respondenc's counsel

conceded quantum. However, I flnd thar: the damages are correctly .

assessed, or at	least closely enough	CO correctly assessed; when	i
t
I

I say "closely enough", I have in mlnd a possibility that another

means of calculatlon vhich was open on the evidence mlght have

produced very slightly mere.	!
i

The consequence

r i l l 1 bz, therefore, that there

will be

judgment for the aopllcant agalnst the sscond respondenr: in the

There 1 s a

cross-clalm by the second respondent agamst

the applicant under the hire purchase agreement, the amount of which 1s aTreed to be $1,794.56, and I glve judgnlent for the

second respondent agalnst the applicant

in that sum.

Next, there will

be judgment for che second respondent

against the first respondent

the form of

a declaration chat

the flrst respondsnt is llable to indemnify

the Tecona respondent

In respect of such part, If any, of the sald sum of

$3,594.80 and

9 .

costs as the

second

respondent

may

pay- under my judgment In

favour of the applicant.

The orders for costs

will be as fOl10WS: flrstly,

order that the respondents pay the appllcant's costs

and

incldental to these proceedlnqs, including reserved costs, to

taxed; secondly, I order that tkLe first respondent pay the second.

respondent's

costs of and mcidental to these proceedlnqs to be

taxed, such

costs to include bot'n

the second respondent's costs

of resisting	the applicant's clalm and the costs	of	its claim	i
I

against the flrst respondent.

[1985] FCA 367

26 Jul 1985