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

[1985] FCA 367

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PTNUJS J.

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any e-lent, I p re i5 r the evidence q iven as t o 1 3 Ju iy and 11

Sentember.

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I n shnrc. I 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.

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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 to

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 Mr 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. Mr Harradine W ~ S ,

superficlally, qnte an Impressive witness. Fie seemmi frank and

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amiable . but I r e q r e t that I cannnt ail;l?pt h i s evldence m t k a t

I r e spec t . I ndeed , I am 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

more 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 of Mr

H a r r a d i n e a g a i n s t h a t of Mr Wenter. the a p p l l c a n t . I 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 he t houuh t i t was a 1975 model. The vidence is c l e a r , nn

t h e par t of t he r i r s t respondent , that ~t was knmm no t t o be a

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 , I s t i l l f e e l

s a t i s f l e d , a n d th1nl.r I should f lnd , and I 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 Mr Harradine’s ev 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

as he appeared when he gave evidence, but he seemed t o be

p e r f e c t l y h o n e s t . I do no t be l l eve he lnven ted t he s to ry and I

t h i n k that he would have regarded the model year as a mat ter of

some Importance. I t 15, of 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 9 1975

model. If he d i d do so , however, and I have held thct he 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 a

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
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whet-e to look and bnthered t o l m k .

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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 of not chere yual l ty but S J Z S a I

mis rep resen ta t lon made, st l e a s t r e c k l e s s l y , as 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
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There was d i s c u s s l s n c lu r lnq the cout S? of th? addres ses

as t o the consequences of 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

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c o u n s e l f o r t h e f i r s t respondent , Mr T;i lag, that the r e s u l t of

such f i nd ings as I have ind lca ted ~ ~ 8 i . 1 l d be 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 tQ t h e d a t e of I

the judgment. my On 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

be conceded t o b e a 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 b judgment i n favour of 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 rn t h e sum ~f $3,594.8'3,

with c o s t s .

As to 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

on 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 9s r e l N a n t , t Fads a5 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 or

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 on behalf of

t he . . . dealer, i n connect ion w i t h or I n t h e

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course of neootlatlons l?adInq to the encering

Into of a hire-purchase agrreenent. shall confer on

the hirer -	i
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( 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 In a hlre purchase

agreement and the second respondent is the "owner", that sectlon,

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as I have said, appears to cover the claim. Therefore. the

damages as against the second respondent wlll be the same. It 1 s '

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not absolutely clsar to me thac the second respondenc's counsel I

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

assessed, or at	least closely enough	CO correctly assessed; when	i
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I say "closely enough", I have in mlnd a possibility that another

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means of calculatlon vhich was open on the evidence mlght have

produced very slightly mere.	!
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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 in 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

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costs as the second respondent may pay- under my judgment In !

favour of the applicant. !

The orders for costs will be as fOl10WS: flrstly, I

order that the respondents pay the appllcant's costs of and

incldental to these proceedlnqs, including reserved costs, to be

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

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of resisting	the applicant's clalm and the costs	of	its claim	i
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against the flrst respondent.

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