Zanker, Adolf v Tasmanian Truck & Tractor Pty Ltd

[1980] FCA 70

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I N THE FEDERAL COURT OF AUSTRALIA No. G 1 of 1979

TASMANIA D I S T R I C T R E G I S T R Y

GENERAL D I V I S I O N

B E T W E E N : !

ADOLF ZANKER and ELIZABETH

HARY ZANKER A p p l i c a n t s

and

T A S i a N I A N TRUCK & TRACTOR

PTY. LTD. R e s p o n d e n t

ORDER

JUDGE NAKING ORDER: Northrop 3 .

DATE OF	ORDER:	22 May 1980
WHERE	iGDE :	Hobart

THE COURT ORDERS THAT there be j u d g m e n t f o r t h e respondent w i t h

costs i n c l u d i n g all reserved costs.

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IN THE FEDERAL COURT OF AUSTRALIA

TASivIANIA DISTRICT REGISTRY	No. G1 of 1979
GENERAL DIVISION
B E T W E E N :

ADOLF ZANKER and ELIZABETH

NARY ZANKER Applicants

and

TASMANIAN TRUCK h TRACTOR

PTY. LTD. Respondent

NORTHROP J. REASONS FOR JUDGMENT 2 2 MAY 1 9 8 0

Thls is an actlon brought by the appllcants under s s . 8 2 and

86, Trade Practlces Act 1974, herelnafter called "the Act". The

action was commenced on 2 8 August, 1970, but the facts giving rlse

to the action occurred prlor to the date on whlch the Trade Practices

Amendment Act 1977 came into operatlon, accordingly references to the

provisions of the Act are to the provlsions in operation prior to

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1 July 19.77. Sectlon 8 2 of the Act was as follows -

" 8 2 . (l) A person who suffers loss or damage by an

act of another person that was done in contravention

of a provision of Part 1V or V may recover the amount

of the loss	or damage by action against that other
person.

( 2 ) An action under sub-section (1) may be

commenced at any time within 3 years after the date

on which the cause of action accrued."

Section 8 6 of the Act is as follows -

" 8 6 . Jurisdlction is conferred on the Court to hear

and determine actlons, prosecutions and other

proceedlngs under thls Part, and that jurisdiction

1s exclusive of the jurisdlctlon of any other court,

other than the jurlsdictlon	f the High Court under
s.75 of the Constitution."

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After 1 February 1977 "the Court" was deflned to mean the

Federal Court of Australia, see Federal Court of Australia Act 1976

as amended, and the Federal Court	f Australla (Consequential
Provisions) Act 1976.

By this action, the applicants are seeking to recover from

the respondent the amount of the loss or damage they claim they

suffered by acts of the respondent done in contravention of one or

more of s.52 and s . 5 3 (a), (c) and (g), being provisions of Part V

of the Act, Each of those sections is within Division 1 of Part V of

the Act. Section 52 of the Act was as follows -

"52. (1) A. corporation shall not In trade or commerce,

engage in conduct that is misleading or deceptive.

(2) Division shall be taken as limiting Nothing in the succeeding provisions of this

by implication the

generality of sub-section (1) ."

Section 53 (a) , (c) and (g) was as follows -

"53. A corporation shall not, in trade or commerce,

in connexion with the supply or posslble supply of goods or services or in connexion wlth the promotion

by any means of the supply or use of goods or services -

(a) falsely represent that goods or services

are of a partlcular standard, quality or grade, or

that goods are	of a particular style	or model;
...

(c) represent that goods or services have

sponsorship, approval, performance characteristics,

accessories,uses or benefits they do not have;

(g1 make false or misleading statements

concerning the	existence or effect of any warranty
or guarantee;
...
The respondent	is and at all material times was a corporation

within the meaning of the Act carrying on business throughout the

State of Tasmania, inter aha, of selling by retail nelr and used

motor trucks. The applicants are husband and wlfe who at all

material times were carrylng on business In parcnership,

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On Thursday, 26 August 1976 the applicant, Adolf Zanker,

signed a retall motor truck order form by which he requested the

respondent to supply to him a used Mack F700 prlme mover motor truck

for delivery at Devonport on 26 August 1976 "as inspected with full reglstratlon $977.36" for $25,000, wlth an allowance of $15,000 for a trade-in on an International prime mover. The order was made

subject to finance and	one of the conditions of the order	vas as
follows -

"7. If the vehicle ordered herein is a used vehicle

it is sold with all faults and defects, if any, as

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and where now situated, unless specifically stated

in writing by the Vendor."

At the time the order form was signed the Mack was situated at

Devonport. It vas not registered, but was belng drlven under cover

of dealer plates. After the order note was signed, the applicants took possession of the Mack. Flnance from Esanda Ltd. was approved

on Frlday, 27 August, but the hlre purchase documents were not slgned

by the appllcants until the following Monday. On the Friday and

during the weekend, the appellants caused substantlal work to be

done to the Mack to adapt i.c for use for the carting of logs with a

timber jinker already owned by the applicants. On Monday, 30 August

the Mack was registered at the expense of the respondent, the purchase

price paid to the respondent wlth moneys borrowed from Esanda Ltd.

being $22,734 and the balance, namely $2,266, being borrowed privately

by the appllcants, and the respondent took delivery of the

International. On Tuesday, 31 August, Adolf Zanker commenced using the

Hack for cartlng logs. Almost immediately thereafter repair work had to

be done on the black, the cost of which the appellants claim

constituted,loss or damage resulting from acts of the respondent

done in contravention of the Act and which had occurred on Thursday,

26 August 1976 and on occasions prlor thereto. In these circumstances,

a prellminary questlon arises, namely whether the action is statute

barred under s . 8 2 ( 2 ) of the Act, smce the action was commenced more

than 3 years after the acts of the respondent claimed to have been

done in contraventlon of the Act but wlthln 3 years after the

date on which the loss or damage 1s clalmed to have become apparent

for the first time.

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Sec t ion 8 2 o f t h e A c t c o n f e r s a r l g h t on a person who

s u f f e r s loss o r damage by an act o f a n o t h e r p e r s o n t h a t was done

i n c o n t r a v e n t i o n o f a p rov i s ion o f P a r t V o f t h e A c t . The r i g h t of

a c t i o n so confer red upon the f i r s t -men t ioned pe r son 1 s expressed

i n t h e f o r m t h a t t h a t p e r s o n "may r e c o v e r t h e amount of t h e l o s s o r

damage by a c t l o n " . I n t h e c o n t e x t o f t h a t p h r a s e t h e word "recover"

i s used i n t h e t e c h n i c a l s e n s e o f r e c o v e r i n g by a c t i o n a n d i f

s u c c e s s f u l by the judgmen t o f t he Cour t , wh l l s t t he use o f t he

word "may" i n d i c a t e s t h a t t h e p e r s o n upon whom t h e r i g h t is confe r red

has a d i s c r e t i o n w h e t h e r t o a t t e m p t t o e n f o r c e t h a t r i g h t o r n o t .

The Impor t an t a spec t o f t he sub - sec t lon i s t h a t t h e r i g h t 1 s

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confe r red upon a person who s u f f e r s loss o r damage. A person does I

n o t g a i n t h e b e n ' e f i t of t h e r i g h t o f a c t i o n u n t i l h e h a s s u f f e r e d

t h e loss e s s e n t i a l p a r t o f o r damage. I n o t h e r w o r d s , t h e loss or damage i s an

t h e r i g h t c o n f e r r e d b y s . 8 2 ( 1 ) . I n f o r m , s . 8 2 ( 2 )

IS pe rmis s ive , bu t i s t o be read as b a r r i n g t h e r i g h t o f a c t i o n i f

n o t commenced i l i t h i n 3 y e a r s a f t e r t h e date on which the cause of

a c t i o n a c c r u e d . T h e r e c a n b e n o c a u s e o f a c t i o n u n t l l t h e first-

ment ioned person has suf fered loss o r damage. The cause of actlon,

b e i n g t h e r i g h t o f a c t i o n c o n f e r r e d by s . 9 2 ( 1 ) , d o e s n o t a c c r u e o r

a r i s e u n t i l loss o r damage 1 s manifes ted ; see Read v. Brown (1889)

22 Q.B.D. C o l l i e r y Co. 128 per Lord Esher a t p.131, Mitchel l v . Darley Main

(1884-5) 1 4 Q.B.D. 125. See a l s o H a l s b u r y ' s ~ Laws of

-- Enqland 4th Ed. V o l . 2 8 , p .278 , para . 623 . In an ac t ion for b reach

o f c o n t r a c t t h e c a u s e o f a c t i o n i s the b reach and no t necessarily

when damage accrues , Halsbury , lb ld , p .298 , para . 6 6 2 , Lynn v. Bamber

119301 2 K.B. 7 2 .

I n t h e p r e s e n t c a s e t h e a p p l l c a n t s c l a l m t h a t t h e l o s s or

damage s u f f e r e d c o m p r i s e s t h e c o s t o f r e p a i r s t o t h e Mack, loss of

p r o f l t s w h i l e t h e r e p a l r s were b e i n g c a r r l e d o u t , a n d damages f o r

personal inconvenience and emotional distress, a l l of rlhlch

o c c u r r e d w i t h i n 3 yea r s f rom the commencement of the ac t ion . Whether

t h i s c o n t e n t i o n i s correct o r n o t will need t o be decided a f t e r

cons ider ing the whole o f the ev idence . Accord ingly , it IS n o t

a p p r o p r l a t e o n t h i s p r e l l m l n a r y q u e s t i o n t o make a f i n a l r u l l n g o n

whe the r t he ac t lon can be main ta ined .

. .S..

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By	t h e i r amended	s ta tement	o f	claim,	t h e	a p p l i c a n t s	se t	l
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o u t t h e acts of the r e sponden t wh ich they a l l ege vere i n c o n t r a v e n t i o n

of Pa r t V o f t h e A c t . They a l l e g e t h a t w i t h a view t o i n d u c i n g t h e

s a l e of t h e Mack, t he r e sponden t r ep resen ted t o them -

" ( a ) t h a t t h e s a i d Mack t r u c k was a 1 9 7 2 model;

( b ) t h a t t h e s a i d Mack t r u c k was i n A 1 mechanical

c o n d i t i o n ;

(c) t h a t t h e rear suspension, gearbox and motor of

t h e said Mack t ruck had been recent ly recondl t ioned

and t h a t t h e rest of the t ruck had been tho rough ly

checked over and found t o b e I n good c o n d i t i o n ;

(d ) t h a t t h e s a i d Mack t ruck had recent ly had a l l new

b r a k e l i n i n g s f i t t e d t o it;

(e) t h a t t h e s a l d Plack t ruck had r ecen t ly had all new

s p r i n g p a d s a n d b u s h e s f i t t e d t o it;

( f ) t h a t h e s t e e r i n g of t h e said Mack t ruck would be

improved when t h e t r u c k was p u l l i n g a j i n k e r

f u l l y l o a d e d w i t h t imber logs ;

(g) t h a t t h e s a i d Mack t r u c k was i n s u c h good c o n d l t i o n

a s t o be a s u i t a b l e v e h i c l e f o r f u l l - t i m e timber

hau lage ope ra t ions ;

(h ) t h a t t h e R e s p o n d e n t w o u l d p a y t o h a v e t h e s t e e r i n g

o n t h e s a i d Mack t r u c k f i x e d . "

They t h e n a l l e g e t h a t t h e r e s p o n d e n t , i n t r a d e o r commerce,

engaged in conduct which was m i s l e a d m g o r d e c e p t i v e u n d e r s .52(1)

of t h e A c t i n t h a t e a c h of t h e r e p r e s e n t a t i o n s ( a ) t o ( h ) i n c l u s i v e

was f a l s e and u n t r u e a n d p a r t i c u l a r s t h e r e o f were g iven . Fu r the r

o r i n t h e a l t e r n a t i v e t h e y a l l e g e t h a t t h e r e s p o n d e n t , I n t r a d e o r

commerce, l n connec t lon wl th the supp ly o f t he Mack d l d -

1. f a l s e l y r e p r e s e n t t o them t h a t t h e Mack was of

a p a r t i c u l a r s t a n d a r d , q u a l i t y o r g r a d e , p a r a g r a p h s

( b ) , ( c ) , ( a ) , (e) and (g) , c o n t r a r y t o s.53(a) of

t h e A c t ;

2. f a l s e l y r e p r e s e n t t o them t h a t t h e Mack was of a

p a r t i c u l a r s t y l e o r m o d e l , p a r a g r a p h ( a ) , c o n t r a r y

t o s.53(a) o f t h e A c t ;

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3 .	r	epresent to them that the Mack had perform	lance	I
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characteristics, uses or beneflts it did not have,

paragraphs (f) , (g) and (h) , contrary to S . 5 3 (c) I

of the Act; and

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4 . make false or misleading statements to them

concernlng the existence or effect of a warranty

or guarantee in that each of the representations I

numbered (a) to (h) inclusive was false or mis-

leading, contrary to s.53(g) of the Act. I .

Before considering the evidence r latmg to these allegations

some general comments should be made. The evidence relates to facts	i
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which occurred In August 1976, some three and a half years before

the trial of the action. The witnesses giving evldence relating to

these allegations were Adolf Zanker, Elizabeth 1-lary Zanker, Neville

Stafford, Anthony Harold Pybus and Peter James Simons. Adolf Zanker is a new Australian and has some difficulty In understanding and expressing himself in the English language. He recelved no formal

teachlng to read but is able, to a limited extent, to read and

understand the wrltten English language. In August 1976 he was

Inexperienced in business affairs and had only about 6 months'

experience in driving logging trucks. He was friendly with Neville

Stafford and looked to him for help and guidance in business matters

in the log carting business, and in particular with respect to the

purchase of the Mack. Hls confidence in Neville Stafford was not

well-founded. At the hearing Neville Stafford attempted to reject any

idea that at the tlme of the purchase of the Mack, Adolf Zanker was

relying upon him for help and guidance with respect to the purchase

of the Mack. Adolf Zanker suffers from a deep sense of dlsillusionment

arising from his failure to succeed as a log carting contractor and

from the expense of the repalrs needed to maintaln the Mack. He

blames the respondent for a l l his troubles and this affects his

recollection of events leading up to the purchase of the Mack. He

had a tendency to say statements were made because he believed they

should have been made,

Ellzabeth Zanker was a witness of truth. She gave great

support to her husband. She kept a record of the expendlture Incurred

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in running the	Iviack, but because of lack	of experlence and trainlng	;
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d i d no t keep r eco rds showing whe the r t he log ca r t ing bus iness was

r u n n i n g a t a l o s s o r p r o f l t . The r eco rds o f t he expend i tu re s were

kept on a week-to-week basis w l t h no a t t empt t o make allowance for

r e c u r r i n g o r f u t u r e e x p e n d i t u r e a n d no a t t empt t o b a l a n c e t h e

accounts on a p e r i o d i c a l b a s i s . A s a r e s u l t , s h e was u n a b l e t o

form an opin ion as t o t h e s u c c e s s o r o the rwise o f t he ven tu re .

Eventua l ly the burden became too great. I n t h e e a r l y d a y s A d o l f

Zanker tended b u t E l i z a b e t h Z a n k e r , i n s e e k i n g t o t o b l a m e h i m s e l f f o r t h e f a i l u r e s o f t h e b u s i n e s s ,

ease h i s self-criticlsm, placed

t h e blame on t h e Mack and the respondent who had sold it t o them.

A s a r e s u l t , Adolf Zanker came t o b e l i e v e t h a t e v e r y t h l n g t h a t

happened t o t h e Mack was t h e f a u l t of the respondent and the expenses

i n c u r r e d i n e f f e c t i n g r e p a l r s s h o u l d b e p a i d f o r by the r e sponden t .

Al though present a t Devonpor t when t h e Mack was inspec ted by Adolf

Zanker and Neville S t a f f o r d , M r s . Zanker could give no evidence of

what was s a l d o n t h a t o c c a s i o n . S h e l e f t a l l t h e d e c l s i o n s

conce rn ing the pu rchase o f t he Mack t o her husband.

I formed an adverse opin ion concern ing thewi tness

N e v i l l e S t a f f o r d a n d a m u n a b l e t o p l a c e r e l l a n c e o n h i s e v i d e n c e . He

was i n p a r t n e r s h i p w i t h h i s f a t h e r a n d b r o t h e r c a r r y i n g o n b u s i n e s s

under the name F. M . S t a f f o r d & Co. Tha t pa r tne r sh ip had a

c o n t r a c t t o s u p p l y l o g s t o N o r t h e r n k7oodships Ltd. a t Long Reach.

S t a f f o r d & Co. engaged persons t o c u t l o g s i n t h e Duck Marsh a r e a ,

t o b a r k t h e l o g s a n d t o car t them some 80 miles f o r d e l i v e r y a t Long

Reach. It was t h e S t a f f o r d s , it no t be ing clear whether Nevi l le

S t a f f o r d or h i s f a t h e r , who persuaded Adolf Zanker t o l e a v e h i s

]ob as an employee with A.P.P.I.I., t o p u r c h a s e t h e I n t e r n a t l o n a l

t ruck f rom S ta f fo rd & C o . and t o ac t a s a s u b - c o n t r a c t o r l n t h e

c a r t i n g of the logs f rom Duck Marsh t o Long Reach, Adolf Zanker

h a d n o t p r e v i o u s l y d r i v e n a r t i c u l a t e d v e h i c l e s a n d h a d t o g e t h l s

l icence endorsed before he could d r lve a semi-trailer. S t a f f o r d & Co.

received payment f rom Northern Woodshlps for the logs car ted by Adolf

Zanker and kept an account of the moneys so r ece ived to enab le them

t o pay su rp lus mon ies due to the app l i can t s a f t e r the deduct lon of

other payments made o n b e h a l f o f t h e a p p l l c a n t s . N e v i l l e S t a f f o r d

was an expe r l enced logg lng con t r ac to r and log ca r t e r ope ra to r . H e

he lped Ins t ruc t Ado l f Zanker l n t h e ways o f c a r t l n g l o g s . H e

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knew, o r should have known, t h a t t h e I n t e r n ,at , i o n a l t r u c k S t a f f o r d & C o . '

s o l d t o t h e a p p l i c a n t s was i n v e r y p o o r c o n d i t i o n a n d was n o t s u l t a b l e

for tthe work being done and t o be done . Never the less , the appl icants

i n March 1 9 7 6 were lnduced t o pay $ 2 4 , 0 0 0 f o r t h e I n t e r n a t i o n a l t r u c k

and timber j i n k e r , t h e j i n k e r b e i n g v a l u e d a t a b o u t $ 3 , 0 0 0 . Adolf

Z a n k e r b e l i e v e d p a r t o f t h e p r i c e p a i d was fo r t h e c o n t r a c t t o car t

t h e l o g s , Zanker had cont inual problems with repairs b u t t h e e v l d e n c e does no t suppor t t ha t be l l i e f . Adolf

t o t h e I n t e r n a t i o n a l t r u c k ,

I n a d d i t i o n , it vas too l i gh t and no t power fu l o r speedy enough fo r

t h e work be ing r equ i r ed of it. From d i s c u s s i o n s w i t h o t h e r

c a r t e r s , A d o l f Z a n k e r f o r m e d t h e b e l i e f t h a t Mack t r u c k s were common

i n t h e l o g c a r t i n g i n d u s t r y , were the mos t popu la r make of t r u c k s

e n g a g e d f o r l o g c a r t i n g a n d wou ld be idea l fo r t he pu rpose fo r wh ich

h e wanted a r e p l a c e m e n t t r u c k f o r t h e I n t e r n a t l o n a l . Neville S t a f f o r d

gave Adol f Zanker every Indica t ion tha t he would ass i s t and advise

Adolf i n t h e p u r c h a s e o f t h e Mack. N e v l l l e was p r e s e n t when Adolf

f i r s t saw t h e Mack. They both went on the tes t d r ive , Nev i l l e be lng

t h e f i r s t t o d r i v e t h e black. Nev i l l e i n spec ted t h e t ruck and the

engine of t h e t r u c k . N e v i l l e , t o g e t h e r w i t h e m p l o y e e s o f S t a f f o r d C Co.,

helped Adolf adapt the 14ack t o s u l t t h e ] i n k e r a l r e a d y owned by

Adol f . Despi te a l l ou tward appearances , Nevi l le S ta f ford clalmed i n

e v i d e n c e t h a t h e d i d n o t advise Adolf and was n o t r e q u i r e d t o a d v i s e

him. I do n o t b e l i e v e hlm and t h i s a f f e c t s t h e r e l i a n c e t h a t c a n be

p l aced on h i s o the r ev idence . H e , t o o , 1s a t t empt ing t o s h i f t t h e

blame t o the r e sponden t ,

Peter Simons v7as a sales r e p r e s e n t a t i v e employed by t h e

respondent a t I ts Launceston branch, and in par t icular vas employed

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t o s e l l motor t rucks. H e 1 s a qua l l f i ed mechan ic wi th expe r l ence in

t h e l o g g r n g c o n t r a c t i n g b u s i n e s s a n d t h e l o g c a r t i n g b u s i n e s s , On

prevlous occas ions he had been employed by the respondent as a sales

r e p r e s e n t a t i v e b u t h a d l e f t t o e n g a g e i n h i s o t h e r a c t i v l t i e s . He

had re-commenced h i s employment with t h e r e s p o n d e n t i n 1976 and was

so employed up t o t h e tlme of t h e h e a r i n g o f t h i s a c t l o n . H l s

r e c o l l e c t i o n o f t h e e v e n t s l e a d i n g up t o t h e s a l e o f t h e t r u c k 1s n o t

good. He had a tendency to deny anything whlch might be considered

t o b e a r a g a i n s t t h e I n t e r e s t o f t h e r e s p o n d e n t . He received commission

i n t h e sum of $150 .00 , being one and a h a l f p e r c e n t on the change-over

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f igu re be tween the black a n d t h e I n t e r n a t i o n a l . He had not seen

t h e Plack u n t i l he drove it f rom Per th to Devonpor t fo r t he pu rpose

of allowing Adolf Zanker t o t a k e it f o r a t e s t d r l v e . I canno t

p l a c e much r e l l a n c e on h i s ev idence .

I n a u g u s t 1976 Anthony Pybus was employed by the r e sponden t

a s t h e m a n a g e r o f t h e Sloonah branch of the r e sponden t . H e was i n

t h e employ o f t he r e sponden t fo r some 10 y e a r s b u t l e f t t h a t

employment in Februa ry 1 9 7 7 , and a t t h e time of t h e h e a r i n g was

employed by t h e Tasmanian Board Mills Ltd. as I t s Hobart Manager.

The Mack was b e i n g h e l d f o r sale a t t h e Moonah branch and Anthony !

Pybus was r e s p o n s i b l e f o r i t s sale , in de t e rmin ing its sale p r i c e

and	i n a l l o w i n g	t'he amount of any	trade-in allowance	i n c o n n e c t i o n
f

w i t h i t s sale. I f i n d t h a t h e n e g o t i a t e d t h e s a l e o f t h e Mack t o

the respondent . Of a l l t h e w i t n e s s e s g i v i n g e v i d e n c e on t h e s e

a l l e g a t i o n s , Anthony Pybus has the c leares t recol lec t ion of what

was sald. I f i n d him a wl tness o f t r u t h and accep t h i s ev idence .

Some tlme a b o u t t h e middle of August 1976, Adolf Zanker

drove t o Launceston with N e v i l l e S t a f f o r d a n d a C h a r l i e Brown.

C h a r l i e Brown had agreed t o purchase a logglng t ruck from

S t a f f o r d & Co. and was go ing to Launces ton wi th Nev l l l e S ta f fo rd

t o a r r a n g e f i n a n c e t o purchase tha t logging t ruck . Adol f Zanker

v e n t w i t h them t o see i f h e c o u l d f i n d a s u i t a b l e t r u c k t o buy

t o r e p l a c e h i s I n t e r n a t i o n a l . A f t e r conduc t lng t he bus iness !n th

t h e f i n a n c e company, t h e t h r e e men went t o the Launceston branch !

of the d e a l i n g s respondent . Peter Simons knew Nev l l l e S ta f fo rd f rom p rev ious

i n t h e l o g g i n g c o n t r a c t i n g b u s i n e s s . N e v i l l e S t a f f o r d

introduced Adolf Zanker as a person who was i n t e r e s t e d i n b u y i n g

a used t h a t h e h a d a n I n t e r n a t i o n a l w h i c h h e d i d n o t t h i n k logging t ruck . In subs tance , Adol f Zanker to ld Peter Simons

was s u i t a b l e

and was t h i n k l n g o f t r a d i n g it i n on something bet ter and would

l i k e a black t ruck . There vas no Mack t r u c k i n t h e L a u n c e s t o n 1.

branch , bu t Peter Simons knew t h a t t h e r e s p o n d e n t h a d a used Mack

t r u c k f o r sale a t Hobart a t i t s Moonah branch, H e t o ld Adolf Zanker ,

t h a t t h e r e s p o n d e n t h a d a good Mack t r u c k a t Hobart and suggested

t h a t Adolf Zanker and Neville Stafford go down w i t h him then and I

t h e r e t o Hobar t and inspec t the black. N e v i l l e S t a f f o r d s a l d t h e y

d i d n o t h a v e t h e time b u t t h a t h e and Adolf Zanker would be prepared I

, .10,.

- 10 -

t o l o o k a t lt a t some o t h e r t i m e . N o p r i c e was mentioned, but

arrangements were made t o meet Adolf Zanker a t Long Reach t o e n a b l e

a n i n s p e c t l o n o f t h e I n t e r n a t i o n a l f o r t h e p u r p o s e o f d e t e r m i n i n g t h e amount of the t rade- in a l lowance . Adol f Zanker sa id he wanted

about $ 2 0 , 0 0 0 t r a d e - i n a l l o w a n c e f o r t h e I n t e r n a t i o n a l . lie also

s a i d t h a t t h e I n t e r n a t i o n a l was being bought on finance from

Esanda and t h a t any sale would need t o be f lnanced by Esanda Ltd.

The respondent had obtalned the Mack from a f l r m c a l l e d

Gangell Bros. When it had been brought in to the Moonah branch yard,

c e r t a i n work had been done on it, Hav lng r ega rd to the amount

a l lowed as a t r a d e - i n on t h e Mack a n d t h e c o s t o f t h e work done

on t h e Mack whi ld a t Moonah, a sale p r i c e o f $ 2 5 , 0 0 0 was p laced

upon t h e Mack. The p r i c e was determined by Anthony Pybus i n h i s

c a p a c l t y as Manager o f t h e Moonah branch. Each month a s t o c k l i s t

was d i s t r i b u t e d among t h e b r a n c h e s o f t h e r e s p o n d e n t l l s t i n g t h e

v e h i c l e s a v a i l a b l e f o r sale a t t h e v a r i o u s b r a n c h e s , t h e p r i c e f i x e d

f o r e a c h v e h i c l e a n d c e r t a i n o t h e r p a r t l c u l a r s . T h l s was why

P e t e r Slmons knew o f t h e e x i s t e n c e of t h e 1-lack In Hobar t . The Manager

of the branch a t which a v e h i c l e was a v a i l a b l e f o r s a l e was

r e s p o n s i b l e f o r d e t e r m i n l n g t h e v a l u e o f a n y t r a d e - l n on s a l e ,

a l t h o u g h t h a t a u t h o r i t y c o u l d be d e l e g a t e d t o a person employed a t

another branch. Anthony Pybus was r e s p o n s i b l e t o d e t e r m i n e t h e

t r ade - in a l lowance fo r any veh ic l e traded i n on t h e purchase of t h e

Mack, and i n p a r t l c u l a r was r e s p o n s i b l e f o r d e t e r m i n i n g t h e t r a d e - i n

a l l o w a n c e f o r t h e I n t e r n a t i o n a l owned by Adolf Zanker. Peter Simons

had no au tho r l ty to de t e rmine the amount of t h a t t r a d e - i n ,

Following a t e l ephone ca l l f rom Peter Slmons, Anthony Pybus,

who v a s g o i n g t o L a u n c e s t o n o n o t h e r b u s l n e s s , a g r e e d t o i n s p e c t t h e

!

I n t e r n a t i o n a l . P u r s u a n t t o t h e e a r l i e r a r r a n g e m e n t , t h e i n s p e c t i o n

could take place on any day a t c e r t a i n times a t Long Reach, On I

Wednesday, 25 August, Anthony Pybus, Peter Simons and another salesman :

employed by the respondent , Greg . Sproule , wai ted on the Eas t Tamar

Highway. When Adolf Zanker drove along the hlghway towards Long Reach '

t o d e l l v e r a load o f l ogs , t hey fo l lowed h lm. Af t e r t he logs had

been unloaded, Anthony Pybus and Peter Slmons inspected the

I n t e r n a t i o n a l a n d Anthony Pybus and Adolf Zanker then negotiated

prices. Adolf Zanker was t o l d t h e p r i c e o f t h e Mack was $ 2 5 , 0 0 0 a n d

. .II. I

- 11 -

t h a t p r i c e was not negotlable. Adolf Zanker wanted $ 2 0 , 0 0 0 t r a d e - l n

a l lowance on the In te rna t iona l . Fo l lowing cons iderable haggl lng

a t rade- in al lowance of $ 1 5 , 0 0 0 was a g r e e d t o a n d i t was agreed

between Anthony Pybus and Adolf Zanker t h a t , s u b j e c t t o test d r i v i n g

t h e Mack, Adolf Zanker would purchase It o n t h e b a s i s t h a t h e c o u l d

have it "as ls, where 1s , a l l f a u l t s i f a n y " , The phrase "as 1s ,

where i s , a l l f a u l t s I f a n y " d e s c r i b e s o n e o f two methods by which

the r e sponden t no rma l ly so ld used veh ic l e s . One method vas t o g i v e

a warranty for a per iod of time, a n d t h e o t h e r was based on Clause 7

of t h e r e t a l l motor truck order. The method whlch was adopted

d e p e n d e d s o l e l y o n t h e t r a d e - l n v a l u e a l l o w e d . I f , h a v i n g r e g a r d t o

t h e a c t u a l v a l u e o f t h e trade-m, the a l lowance 17as h igh , the second

method was f o r t h e I n t e r n a t i o n a l v a s h i g h h a v i n g r e g a r d t o a d o p t e d . I n t h e p r e s e n t case t h e t r a d e - l n a l l o w a n c e

I ts a c t u a l v a l u e .

A t the hear ing , Adol f Zanker d ld not remember Anthony Pybus

was p r e s e n t a t Long Reach and was t h e p e r s o n who n e g o t i a t e d t h e terms

o f t h e Peter Simons. sale o f t h e >lack. H e t hough t t he conve r sa t ions were 171th

H e remembered Greg. Sproule being present, It was

o n l y i n c r o s s e s a m i n a t i o n , a n d a f t e r c o n s i d e r i n g t h e matter ove rn lgh t ,

t h a t h e f l n a l l y remembered t h e p r e s e n c e o f Anthony Pybus. I f i n d

s p e c i f i c a l l y t h a t t h e n e g o t l a t l o n s f o r t h e p u r c h a s e o f t h e Mack were

conducted between Anthony Pybus and Adolf Zanker, and where there i s

any conf l i c t o f ev idence , I p r e f e r t h e e v l d e n c e o f Anthony Pybus.

Adolf Zanker Zanke r had been hav lng t roub le wi th the In t e rna t iona l and be l l eved wanted a Mack t ruck . Anthony Pybus knew t h a t Adolf

t h a t it v a s n o t I n good cond i t ion . Even though the respondent had an

agency for I n t e r n a t i o n a l t r u c k s , Anthony Pybus b e l i e v e d t h a t t h e r e

V 7 0 U l d be the cour se o f t he nego t i a t ions , Ado l f Zanke r a sked problems i n s e l l i n g t h a t p a r t i c u l a r I n t e r n a t i o n a l . D u r l n g

Anthony Pybus

what t h e Mack was l i k e a n d was t o l d t h a t it had been through the

respondent 's workshop and had the normal checks, and anything untoward

had been f ixed and tha t the !lack had been r e -pa ln t ed , bu t t ha t

f o r h i s own i n f o r m a t i o n , i n o r d e r t o f i n d o u t t h e s ta te of t h e Mack,

he shou ldmte rv iew the p rev lous owner . H e a l s o s a i d t h a t t h e g e a r b o x

had been attended t o by A. S. Webster whl le owned by Gangel l Brothers .

Adolf Zanker was t o l d t h e name o f t he p rev ious owner , Don. Gangell

o f Gange l l Bro the r s , bu t d id no t con tac t hlm u n t l l a f t e r t h e

. ,12.

- 12 -

comple t ion of the sale. There was a d i s c u s s i o n a b o u t t h e model o f

t h e Mack and Anthony Pybus t o l d Adolf Zanker t h a t h e t h o u g h t i t p r o b a b l y

h a d b e e n r e g l s t e r e d I n 1 9 7 2 , b u t t h a t t h e model had remained the same

f o r many yea r s .

Arrangements were made t o t a k e t h e Mack t o Devonport on the

foi lowing day, Thursday, 26 Augus t , for the purpose of a l lowing

Adolf Zanker t o have a t e s t d r l v e . The Mack was t o b e t a k e n t o t h e

workshops of F.K. S t a f f o r d & Co., which were s i t u a t e d a t t h e same

p r e m i s e s w h e r e N e v i l l e S t a f f o r d ' s f a t h e r l i v e d a t E a s t Devonport.

The Mack was d r i v e n t o Perth where it was m e t by Peter Simons who

took ove r f rom the d r ive r who had brought it from Hobart. Peter

Simons drove the Mack t o o u t s i d e t h e w o r k s h o p o f F.M. S t a f f o r d & Co.

a t Devonport. He was met by Adolf Zanker and Neville /S ta f ford who

took the Hack f o r a tes t d r i v e . N e v i l l e S t a f f o r d was t h e f i r s t t o

dr ive. During the dr lve they changed places and Adolf Zanker drove

t h e Mack f o r t h e b a l a n c e o f t h e t e s t d r i v e . The o n l y u n u s u a l f e a t u r e

n o t i c e d by them was t h a t t h e s t e e r i n g w o b b l e d , which allowed the

Mack t o wander a b l t . A f t e r r e t u r n i n g t o Devonpor t , Nevi l le S ta f ford

d rove the Mack i n t o F.M. S t a f f o r d & Co. ' s ya rd , and the cab was

l i f t ed to a l low Nev i l l e S ta f fo rd and Ado l f Zanke r t o look a t t h e

engine. In evidence, Adolf Zanker said -

"Can you recal l who l i f t e d t h e c a b up?

... Nevil le Stafford and myself , and Simons was t h e r e ,

We looked around the t ruck - w e s t a r t e d I n a n o t h e r

p a r t o f It and Nevi l le said, 'Well, s h e g o e s a l l r i g h t .

What has been done t o t h e t r u c k ? ' Simons s a i d , ' p 1 e l 1 ,

she has been a l l done up . ' He s a i d , 'What has been

done up? ' , and then Neville s a i d , 'Well, I cannot look

i n t h e motor. I cannot see what has been done. ' He

s a i d , ' I will h a v e t o t a k e y o u r word f o r t h a t . ' And

v7e walked around halfway around the truck and then

Simons said, 'The gearbox has been recondi t ioned. The

brakes have been done, She has been thoroughly checked

over. She is i n 1A c o n d i t i o n . ' So, t h a t was j u s t a b o u t

i t , what has been said.

Now, when t h o s e t h i n g s were s a i d , who was p r e s e n t ?

... Nevi l le S ta f ford and Slmons .

, .13.

- 13 -

"Dld you have a d l s c u s s i o n o r was t h e r e a n y d i s c u s s i o n

i n r e l a t l o n t o your t e s t d r i v e ?

... Yes. d l f f e r e n t when Nev l l l e S t a f fo rd s a id t o S lmons , ' She wander s

a b i t on t he road , ' S imons s a id , 'Well, she will be

you get a load on . '

Hr. S ta f fo rd po in t ed ou t some th ing t o you . What d i d

h e p o i n t o u t ?

... He po in ted ou t t ha t t he dus t cove r on the back b rake

was	miss lng .
The	dus t cove r on the back b rake?

... Yes. And I a t the t ime be lng pu t It down t o t h a t

when Simons s a i d t h a t t h e b r a k e s b e e n d o n e a n d I know

t h a t t h e g e a r b o x when he sa id has been done well, I

p u t it t h a t t h e y f o r g o t t o p u t t h e c o v e r b a c k o n

when they done the b rakes .

Was a n y q u e s t i o n a d d r e s s e d t o Mr. Simons about that?

. . . No.	Well, Mr. Simons sa id	the	b	rakes	been	done
so ...

B e f o r e o r a f t e r	you	p o i n t e d o u t t h e d u s t c o v e r	wss	n o t
t h e r e ?

... Before, H e po in ted out what has been done on the

t ruck and the b rakes was inc luded .

And it was a f t e r t h a t t h a t y o u n o t i c e d t h a t t h e d u s t

cover was n o t o n t h e b r a k e l n t h e rear wheel?

. . . Yes.

Can you a n y o t h e r p a r t o f t h e c o n v e r s a t i o n ? recal l whe the r t he re was a n y o t h e r d i s c u s s i o n ,

. . . 'Nell, Mr. Simons - we t a l k e d a b o u t t h e t r o u b l e I

had with my t ruck , and I had a t a l k with him about

f l n a n c i a l - t h a t I have not go t t h e d e p o s i t q u i t e

enough t o g e t i n t o t h e Mack t r u c k so h e d e c i d e d t o

g i v e m e $ 1 5 , 0 0 0 f o r my t r u c k t o g e t t h e e q u i t y I n t h e

depos i t and he sa ld , well, he had been in the logglng

bus iness h imse l f and tha t I should not have any t rouble

w l t h t h a t r r u c k b e c a u s e It i s a Mack truck and he had

been d r iv ing Macks himself and when he s a l d t h a t t h e

t r u c k s b e e n l n A 1 condl t ion and lt has been thoroughly

checked over well, I had no ques t ions to go a g a l n s t him

belng a sa lesman in a b i g f i r m l l k e t h a t .

I

r 1 4 -

“What d l d y o u d e c i d e I n r e l a t l o n t o t h a t black t r u c k ?

. . . V7hat do you mean by t h a t ?

What d i d you decide m r e l a t i o n t o b u y i n g o r n o t

b u y l n g t h a t t r u c k ?

... I thought I had t es t t h e t r u c k t h e way it had

b e e n e x p l a l n e d t o m e and what he sald he had been

i n a b u s m e s s h m s e l f , I t o o k h i s word i n t h a t r e s p e c t

t h a t I will buy a good t r u c k a n d t h a t Mack t rucks had

been well known. It has come t o my ears many times

t h a t Mack t r u c k s are good log tLucks and I decided i f

I can get f inance I will buy It, ’’

i

The subs t ance o f t he ev idence g iven by Nevllle S t a f f o r d c a n

be seen f rom the ’ fo l lowing ex t r ac t s o f h i s ev idence -

“What impresslons of t h e t r u c k , I f any, did you draw

from your period of d r i v i n g i t ?

... Well, t h e s t e e r i n g ,

What a b o u t t h e s t e e r i n g ?

... The t r u c k was a l l o v e r t h e r o a d . A l l t h e s t e e r i n g

was - it had a l o t o f p l a y o n t h e s t e e r i n g w h e e l .

You then swapped and Mr. Zanker drove it back t o your

f a t h e r ’ s h o u s e ?

... That i s r i g h t .

What happened a f te r you returned?

... I j u s t had another little b i t o f a look around It.

I d i d and then n o t i n t e r f e r e w i t h n o t h i n g , I was j u s t l o o k i n g

I l e f t and walked up into our workshop.

When you first a r r i v e d b a c k a n d g o t o u t o f t h e t r u c k ,

can you reca l l whether any conversat ion was had by you

with anyone	o r by Mr.	Zanker with anyone,	when you were
p r e s e n t ?

... No, I do n o t r e c a l l t h a t ,

So you went up i n t o t h e workshop o r up i n t o t h e y a r d ?

. . . Yes.

.15..

h

- 15 -

"What happened a f t e r t h a t ?

I long , and then was u p t h e r e for a l i t t l e whl l e , it w a s n o t v e r y

. . .

they drove t h e t r u c k up i n t o d a d ' s b a c k

yard where it i s j u s t i n f r o n t o f t h e workshop.

What happened then a f t e r t he t ruck had been d r lven up?

... Mr. Simons and Mr. Zanker come up and I was having

a look ove r t he t ruck then . When t h e y come up I come

out and have a look ove r t he t ruck .

When you say look over the t ruck , how d i d you do t h a t ?

... I went around It and I d ropped the bu l l ba r and

l l f t e d t h e c a b .

J u s t t o e x p l a l n t h a t , when you say l i f t e d t h e cab, what

do you mean by t h a t .

. . . Well, It h a s g o t a forward tllt cab on i t .

You	push the cab forward	t o	g e t a t t h e e n g l n e u n d e r n e a t h ?
. . .	Yes.

Did you have any conversat lon then wlth Mr. Slmons when

Mr. Zanker was p re sen t w i th you?

... Not then. I had a l o o k o v e r t h e t r u c k f i r s t ,

Af te r you looked over the t ruck?

. . . Yes.

Could you r e l a t e t o t h e c o u r t t h e c o n v e r s a t i o n t h a t

you had?

. . . With Mr.	Slmons,	you	mean?
Yes?

... I had a look ove r the t ruck and I asked him had

anyth lng been done to the t ruck and he sa id , 'Yes,

the motor has been recondi t ioned; the gearbox has

been done and the t ruck i s i n good o r d e r . ' I n A1

c o n d i t i o n , h e c a l l e d It. I s a i d t o hlm, 'Can I p u l l

t h e m o t o r t o p l e c e s a b i t and have a l o o k ? ' ' F a i r ' s

f a i r ' , h e said. I sa id , ' Fa i r enough . '

a

- 16 -

“What do you mean he said, ‘ fa i r ’ s f a i r ’ ?

.. . I know the words , f a n go, s o r t of thing, you know.

Was t h e r e any o ther d i scuss ion then?

_.. No, he was t a l k i n g t o - wi th me you s t i l l mean,

do you	n o t ?
Yes?

. . . He v a s t a l k i n g t o Adolf and I d i d n o t know what

t h e y was t a l k l n g a b o u t b e c a u s e t h a t was none of my

bus iness . I had a look a t t h e t r u c k a n d as f a r as t h e

rest of it was concerned, It was none of my bus iness

a t a l l . So I went back i n t o t h e workshop.

Can you r e c a l l t h e s u b s t a n c e of any conversa t ions

tha t t ook p l ace be tween M r . Zanker and Mr. Simons when

you were p r e s e n t ?

... No.

You ment ioned tha t when you drove the truck you found

t h a t t h e s t e e r i n g was - I f o r g e t t h e w o r d s t h a t y o u

used	-	b u t	it was	a l l o v e r t h e r o a d , t h e s t e e r i n g	was
loose .

... It w a s wandering, yes ,

Did you make any comment as t o t h a t , t o Mr. Simons?

... I said someth ing to him a b o u t t h e s t e e r l n g a n d t h a t

he said something about It would be bet ter when you

g e t a load on it. I j u s t shook m e head and did not say

a n y t h i n g t o t h a t .

Do you know where the conve r sa t lon took p l ace?

... That was up i n t h e y a r d .

A f t e r t h e t r u c k h a d b e e n b r o u g h t i n t o t h e y a r d ?

. . .	Yes.
Can	you r e c a l l w h e t h e r t h e r e v a s a n y c o n v e r s a t i o n a b o u t

brakes?

... H e d i d s a y t h a t t h e b r a k e h a d b e e n r e l i n e d ,

. .17.,

- 17 -

"TO whom d l d h e s a y t h a t ?

... I d o n o t know who he was e x a c t l y s p e a k i n g t o , b u t

Adolf and I were s o r t o f s t a n d i n g t o g e t h e r when he

said t h a t ,

Did you in spec t any pa r t o f t he b rakes?

... Y e s , t h e l e f t hand back on the bogle had a b a f f l e

p l a t e o f f it which I could see t h a t t h a t b r a k e l i n i n g

had not been re l ined .

Did you	make any comment t o Mr.	Simons i n r e l a t i o n	t o
t h a t ?

. . . Not on t h a t , no. "

f

Neville S ta f fo rd fo rmed the op in lon tha t apa r t f rom the

s t e e r i n g t h e Mack seemed a l l r i g h t a n d e x p r e s s e d h i s o p i n i o n t o

Adolf Zanker.

I n h i s e v i d e n c e Peter Simons said t h a t i n d r i v l n g t h e Mack

f rom Per th to Devonpor t he d id no t no t i ce any th ing unusua l i n the

s t e e r i n g . After t h e black re turned f rom t h e t es t d r ive and was

d r i v e n i n t o F.M. S t a f f o r d & Co.'s yard , Peter Slmons, In evidence,

s a ld In r e spec t o f Ado l f Zanke r and Nev l l l e S ta f fo rd tha t t hey -

"had looked around the t ruck and ta lked about the

pa r t l cu la r mode l , and how t h e y t 7 0 U l d go about

s l t t i n g a t r a i l e r on it, and a f a l s e b a c k t h e y p u t

on the back of the cab In case t h e l o g s s l l p f o r w a r d

and h i t t h e back of the cab ."

P e t e r S i m o n s d e n i e s t h e y s a i d a n y t h m g t o him about the

s t e e r i n g a n d d e n i e s t h e c o n t e n t o f t h e c o n v e r s a t i o n s g i v e n i n

evidence	by	the o the r two wl tnesses conce rn ing the cond i t ion	of	t h e
Mack.

' ,

The r e t a i l motor t ruck order form was f l l l e d i n by Peter

Simons and signed by Adolf Zanker who d l d n o t r e a d t h e c o n d i t l o n s

on the back of tha t o rder form, Arrangements were made f o r t h e Mack

t o be l e f t a t the workshop a t F.M. S t a f f o r d & C o . Flnd f o r t h e work t o L

. .18..

- 18 -

be done on it. Arrangements were made for Adolf Zanker and his

wife to make the necessary enqulries of Esanda Ltd. to enable

finance to be obtained. Greg. Sproule was rung and requested

to drive from Launceston to enable Peter Simons to be drlven back

to Launceston. Arrangements were made for the International to be

collected on the Monday.

In December 1976, the then sollcitors for the applicants,

wrote a letter of demand to the respondents, Adolf Zanker agrees

he instructed hls then solicitors to write the letter and allege

the matters contained in it. I quote extracts from that letter -

"We are instructed that our cllents were Induced to

acquire the truck by certain oral representatlons

made by an employee of your company to the effect

that the truck was 1972 model which had been

thoroughly checked out and found to be In good

mechanical conditlon. We are lnstructed that the

salesman said that all brakelinings had been renewed

and the sprlng pads and bushes had been renewed.

Subsequently our client has found from the identificatlon

plate attached to a tappet cover that the vehicle was

manufactured in June 1970.

It also appears that the truck was not In good condltion.

As a result it has been necessary In less than 8,000

miles to carry out work on the steerlng, brake booster,

clutch pressure plate, compressor reconditionlng, bushes

and spring shackles, tailshaft universals, front brake

llnings, klng pins and other parts. It has also been

found that electrolysls has set in and a hole has

been eaten through the block and the number 3 piston

sleeve, although our cllents were told that the motor

was reconditioned approximately two years ago. "

There is a marked difference between the allegations

contained in that letter and the evidence given at the trial. On

Wednesday,	25	August, Anthony Pybus told Adolf Zanker that the Mack	i
I

had been through the respondent's workshops and had the normal checks

I

and anything untoward had been flxed. It is easy to understand how . Adolf Zanker could glve lnstructions that what was said was that

the Mack "had been thoroughly checked out and found to be in good i

mechanlcal condltlon". Further, the allegations are to be compared

with what Adolf Zanker said In evidence. Although Anthony Pybus gave

evidence that he told Adolf Zanker that he thought the Mack was first

registered in 1972, there was no evidence before the Court that the

.19. .

&

111.

._

- 19 -

Mack was n o t a 1 9 7 2 model . Adolf Zanker did not give evldence that

an employee of the respondent had said t h a t t h e "motor was re-

condl t loned about two years ago" .

On t h e f l n d l n g s m a d e , t h e n e g o t l a t l o n s for the purchase of

t h e Mack were concluded on Wednesday, 25 August , subject t o t e s t

d r iv ing . In h l s ev idence Ado l f Zanke r s a d "I thought I had tes t t h e

t r u c k t h e a r r angemen t s t o conduc t t he way it had been expla ined to m e " . I n a l l p r o b a b l l i t y , t h e

t es t d r l v e a t D e v o n p o r t were t o e n a b l e

Nevi l le S t a f f o r d t o b e p r e s e n t . He was p r e s e n t . He d i d i n s p e c t t h e

Mack. Adolf Zanker looked t o him f o r a d v i c e . The Hack had not been

he ld a t the Launces ton branch of the respondent . Peter Simons had

n o t s e e n Devonport t h e Mack u n t i l h e h a d p i c k e d it up a t P e r t h t o d r i v e t o i

on Thursday, 26 August. H e d i d n o t know what work had been

done on it whi l e a t t h e Hoonah branch of the respondent . He knew of

the agreement reached on Wednesday, 25 August between Anthony Pybus

and Adolf Zanker. There was no n e e d f o r hlm t o s a y a n y t h i n g a b o u t t h e

Mack on Thursday, 26 August . In a l l t h e c l r c u m s t a n c e s it is u n l i k e l y

t h a t h e would have s a i d a n y t h i n g t o t h e e f f e c t of what Adolf Zanker

and Nev l l l e S ta f fo rd said h e s a i d .

The Court 1s r e q u l r e d t o be sat lsf led on the ba lance of

p r o b a b i l i t i e s t h a t t h e a p p l i c a n t s h a v e made o u t t h e l r c a s e . I f i n d

t h a t t h e Mack, when t e s t d r lven , d id have a tendency to wander over

the road and that Adolf Zanker knew o f tha t t endency be fo re he s igned

t h e t r u c k order form, but was prepared t o pu rchase the Mack knowing

of t h a t s a t i s f l e d , o n t h e b a l a n c e o f p r o b a b i l l t l e s , t h a t t e n d e n c y . A f t e r s e e l n g a n d h e a r i n g t h e n t n e s s e s , I am n o t

Peter Simons s a i d

what Adolf Zanker and Nevi l le Stafford said he sald. On the ev ldence

be fo re t h e Court I am n o t s a t i s f i e d , o n t h e b a l a n c e o f p r o b a b l l i t i e s ,

t h a t a n y of t h e r e p r e s e n t a t i o n s c o n t a l n e d i n p a r a g r a p h s ( b ) t o ( h ) ,

a s se t out above , nor any representa t lons t o t h a t effect , were made

by any person ac t ing on behal f o f the respondent .

I t f o l l o w s t h a t t h e a p p l i c a n t s h a v e f a l l e d t o make o u t a case

t h a t t h e r e s p o n d e n t d id a c t s I n c o n t r a v e n t l o n o f p r o v i s i o n s o f P a r t V

o f t h e A c t .

The i ssue of what loss o r damage should be recovered by t h e

a p p l i c a n t s i f t h e a c t s o f t h e r e s p o n d e n t were done i n c o n t r a v e n t l o n

. . 2 0 . .

I

- 20 -

of provisions of Part V of the Act gives rlse to dlfficult questlans

of fact and extremely difficult questions of law. Counsel were

unable to refer m e to any case in which the Federal Court had

consldered the general prmclples of law to be applied. In view of the findings already made, it is unwlse that any expresslons of opinion be made on an hypothetlcal case that one or more of the

representations was or were made resultlng In loss or damage to the

appllcants. It is not proposed to conslder the other matters raised

in the action. For slmilar reasons, in view of the findlngs made, it

is not necessary to express any further oplnlon on whether the actlon

1s statute barred.

Accordingly, there will be judgment for the respondent

with costs to be taxed.

l '

I certify that this and the / p I1

oreceding pages are a true copy of the

sons for Judgment herein of the il