a IN THE FEDERAL COURT OF AUSTRALIA No. Gl of 1979 TASMANIA DISTRICT REGISTRY GENERAL DIVISION BETWEEN: ADOLF ZANKER and ELIZABETH MARY ZANKER Applicants and TASMANIAN TRUCK & TRACTOR PTY. LTD. Respondent ORDER JUDGE MAKING ORDER: Northrop J. DATE OF ORDER: 22 May 1980 WHERE MADE: Hobart THE COURT ORDERS THAT there be judgment for the respondent with costs including all reserved costs. . IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. Gl of 1979 GENERAL DIVISION BETWEEN: ADOLF ZANKER and ELIZABETH MARY ZANKER Applicants and TASMANIAN TRUCK & TRACTOR PTY. LTD. Respondent NORTHROP J. REASONS FOR JUDGMENT 22 MAY 1980 This is an action brought by the applicants under ss. 82 and 86, Trade Practices Act 1974, hereinafter called "the Act". The action was commenced on 28 August, 1970, but the facts giving rise to the action occurred prior to the date on which the Trade Practices Amendment Act 1977 came into operation, accordingly references to the provisions of the Act are to the provisions in operation prior to 1 July 1977. Section 82 of the Act was as follows - "82.(1) 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 86 of the Act is as follows - "86, durisdiction is conferred on the Court to hear and determine actions, prosecutions and other proceedings under this Part, and that jurisdiction 1s exclusive of the jurisdiction of any other court, other than the jurisdiction of the High Court under s.75 of the Constitution." eZee After 1 February 1977 "the Court" was defined to mean the Federal Court of Australia, see Federal Court of Australia Act 1976 as amended, and the Federal Court of Australia (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.53 (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) Nothing in the succeeding provisions of this Division shall be taken as limiting 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 possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services - (a) falsely represent that goods or services are of a particular 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; (g) make false or misleading statements concerning the existence or effect of any warranty or guarantee; u 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 alia, of selling by retail new and used motor trucks. The applicants are husband and wife who at all material times were carrying on business in partnership. 203, On Thursday, 26 August 1976 the applicant, Adolf Zanker, signed a retail motor truck order form by which he requested the respondent to supply to him a used Mack F700 prime mover motor truck for delivery at Devonport on 26 August 1976 "as inspected with full registration $977.36" for $25,000, wath 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 was as follows - "7, If the vehicle ordered herein is a used vehicle it is sold with all faults and defects, if any, as 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 was not registered, but was being driven under cover of dealer plates. After the order note was signed, the applicants took possession of the Mack, Fanance from Esanda Ltd. was approved on Friday, 27 August, but the hire purchase documents were not signed by the applicants until the following Monday. On the Friday and during the weekend, the appellants caused substantial work to be done to the Mack to adapt it 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 with moneys borrowed from Esanda Ltd. being $22,734 and the balance, namely $2,266, being borrowed privately by the applicants, and the respondent took delivery of the International. On Tuesday, 31 August, Adolf Zanker commenced using the Mack for carting logs, Almost immediately thereafter repair work had to be done on the Mack, 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 prior thereto. In these circumstances, a preliminary question arises, namely whether the action is statute barred under s.82(2) of the Act, since the action was commenced more than 3 years after the acts of the respondent claimed to have been done in contravention of the Act but within 3 years after the date on which the loss or damage is claimed to have become apparent for the first time. 40, t Section 82 of the Act confers a right on a person who suffers loss or damage by an act of another person that was done in contravention of a provision of Part V of the Act. The right of action so conferred upon the first-mentioned person 1s expressed in the form that that person "may recover the amount of the loss or damage by action". In the context of that phrase the word "recover" is used in the technical sense of recovering by action and if successful by the judgment of the Court, whilst the use of the word "may" indicates that the person upon whom the right is conferred has a discretion whether to attempt to enforce that right or not. The amportant aspect of the sub-section is that the right is conferred upon a person who suffers loss or damage. A person does not gain the benefit of the right of action until he has suffered the loss or damage. In other words, the loss or damage is an essential part of the right conferred by s,82(1). In form, s.82(2) 1s permissive, but is to be read as barring the right of action if not commenced within 3 years after the date on which the cause of action accrued. There can be no cause of action until the first- mentioned person has suffered loss or damage. The cause of action, being the right of action conferred by s.92{1), does not accrue or arise until loss or damage 1s manifested; see Read v. Brown (1889) 22 Q.B,.D. 128 per Lord Esher at p.131, Mitchell v. Darley Main Colliery Co. (1884-5) 14 Q.B.D. 125. See also Halsbury's Laws of England 4th Ed. Vol. 28, p.278, para. 623. In an action for breach of contract the cause of action is the breach and not necessarily when damage accrues, Halsbury, 1bid, p.298, para. 662, Lynn v. Bamber [1930] 2 K.B. 72. In the present case the applicants claim that the loss or damage suffered comprises the cost of repairs to the Mack, loss of profits while the repairs were being carried out, and damages for personal inconvenience and emotional distress, all of whach occurred within 3 years from the commencement of the action. Whether this contention is correct or not will need to be decided after considering the whole of the evidence. Accordingly, it is not appropriate on this preliminary question to make a final ruling on whether the action can be maintained. 2-5. fa By their amended statement of claim, the applicants set out the acts of the respondent which they allege were in contravention of Part V of the Act. They allege that with a view to inducing the sale of the Mack, the respondent represented to them — ' tr (a) (b) (c) (d) (e) (£) (g) (h)} that the said Mack truck was a 1972 model; that the said Mack truck was in Al mechanical condition; that the rear suspension, gearbox and motor of the said Mack truck had been recently reconditioned and that the rest of the truck had been thoroughly checked over and found to be in good condition; that the said Mack truck had recently had all new brake linings fitted to it; that the said Mack truck had recently had all new spring pads and bushes fitted to it; that the steering of the said Mack truck would be improved when the truck was pulling a jinker fully loaded with timber logs; that the said Mack truck was in such good condition as to be a suitable vehicle for full-time timber haulage operations; that the Respondent would pay to have the steering on the said Mack truck fixed." They then allege that the respondent, in trade or commerce, engaged in conduct which was misleading or deceptive under s.52(1) of the Act in that each of the representations (a) to (h) inclusive was false and untrue and particulars thereof were given. Further or in the alternative they allege that the respondent, in trade or commerce, 1n connection with the supply of the Mack did - 1. falsely represent to them that the Mack was of a particular standard, quality or grade, paragraphs (b), (c), (ad), (e) and (g), contrary to s.53(a) of the Act; falsely represent to them that the Mack was of a particular style or model, paragraph (a), contrary to s.53({a) of the Act; --6,. 3. represent to them that the Mack had performance characteristics, uses or benefits it did not have, paragraphs (f), (g) and (h), contrary to s,53(c) of the Act; and 4. make false or misleading statements to them concerning the existence or effect of a warranty or guarantee in that each of the representations numbered (a) to (h) inclusive was false or mis- leading, contrary to s,53(g) of the Act. Before considering the evidence relating to these allegations some general comments should be made, The evidence relates to facts which occurred 1n August 1976, some three and a half years before the trial of the action. The witnesses giving evidence relating to these allegations were Adolf Zanker, Elizabeth Mary 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 received no formal teaching to read but is able, to a limited extent, to read and understand the written English language. In August 1976 he was unexperienced 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. His confidence in Neville Stafford was not well~founded. At the hearing Neville Stafford attempted to reject any idea that at the time 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 disillusionment arising from his failure to succeed as a log carting contractor and from the expense of the repairs needed to maintain the Mack, He blames the respondent for all 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, Elizabeth Zanker was a witness of truth, She gave great support to her husband. She kept a record of the expenditure incurred in running the Mack, but because of lack of experience and training weles did not keep records showing whether the log carting business was running at a loss or profit. The records of the expenditures were kept on a week-to-week basis with no attempt to make allowance for recurring or future expenditure and no attempt to balance the accounts on a periodical basis. As a result, she was unable to form an opinion as to the success or otherwise of the venture. Eventually the burden became too great. In the early days Adolf Zanker tended to blame himself for the failures of the business, but Elizabeth Zanker, in seeking to ease his self-criticism, placed the blame on the Mack and the respondent who had sold it to them. As a result, Adolf Zanker came to believe that everything that happened to the Mack was the fault of the respondent and the expenses incurred in effecting repairs should be paid for by the respondent. Although present at Devonport when the Mack was inspected by Adolf Zanker and Neville Stafford, Mrs. Zanker could give no evidence of what was said on that occasion. She left all the decisions concerning the purchase of the Mack to her husband. I formed an adverse opinion concerning the witness Neville Stafford and am unable to place reliance on his evidence. He was in partnership with his father and brother carrying on business under the name F. M. Stafford & Co. That partnership had a contract to supply logs to Northern Woodships Ltd. at Long Reach. Stafford & Co. engaged persons to cut logs in the Duck Marsh area, to bark the logs and to cart them some 80 miles for delivery at Long Reach. It was the Staffords, it not being clear whether Neville Stafford or his father, who persuaded Adolf Zanker to leave his job as an employee with A.P.P.M., to purchase the International truck from Stafford & Co. and to act as a sub-contractor in the carting of the logs from Duck Marsh to Long Reach. Adolf Zanker had not previously driven articulated vehicles and had to get his licence endorsed before he could drive a semi-trailer. Stafford & Co. received payment from Northern Woodships for the logs carted by Adolf Zanker and kept an account of the moneys so received to enable them to pay surplus monies due to the applicants after the deduction of other payments made on behalf of the applicants, Neville Stafford was an experienced logging contractor and log carter operator, He helped anstruct Adolf Zanker in the ways of carting logs. He ta knew, or should have known, that the International truck Stafford & Co. ' sold to the applicants was in very poor condition and was not su1table for the work being done and to be done. Nevertheless, the applicants in March 1976 were induced to pay $24,000 for the International truck and timber jinker, the jinker being valued at about $3,000. Adolf Zanker believed part of the price paid was for the contract to cart . the logs, but the evidence does not support that belief. Adolf Zanker had continual problems with repairs to the International truck, In addition, it was too light and not powerful or speedy enough for the work being required of it. From discussions with other carters, Adolf Zanker formed the belief that Mack trucks were common in the log carting industry, were the most popular make of trucks engaged for log carting and would be ideal for the purpose for which he wanted a replacement truck for the International, Neville Stafford gave Adolf Zanker every indication that he would assist and advise Adolf in the purchase of the Mack, Neville was present when Adolf first saw the Mack. They both went on the test drive, Neville being the first to drive the Mack. Neville inspected the truck and the engine of the truck. Neville, together with employees of Stafford & Co., helped Adolf adapt the Mack to suit the jinker already owned by Adolf. Despite all outward appearances, Neville Stafford claimed in evidence that he did not advise Adolf and was not required to advise him. I do not believe him and this affects the reliance that can be placed on his other evidence. He, too, 1s attempting to shift the blame to the respondent, Peter Simons was a sales representative employed by the respondent at 1ts Launceston branch, and in particular was employed to sell motor trucks. He is a qualified mechanic with experience in the logging contracting business and the log carting business, On previous occasions he had been employed by the respondent as a sales representative but had left to engage in his other activities. He had re~commenced his employment with the respondent in 1976 and was so employed up to the tame of the hearing of this action. Huis recollection of the events leading up to the sale of the truck is not good. He had a tendency to deny anything which might be considered to bear against the interest of the respondent. He received commission in the sum of $150.00, being one and a half per cent on the change-over figure between the Mack and the International. He had not seen the Mack until he drove it from Perth to Devonport for the purpose of allowing Adolf Zanker to take 1t for a test drive. I cannot place much reliance on his evidence. In August 1976 Anthony Pybus was employed by the respondent as the manager of the Moonah branch of the respondent. He was in the employ of the respondent for some 10 years but left that employment in February 1977, and at the time of the hearing was employed by the Tasmanian Board Mills Ltd, as its Hobart Manager. The Mack was being held for sale at the Moonah branch and Anthony Pybus was responsible for its sale, in determining its sale price and in allowing the amount of any trade-in allowance in connection with its sale. I find that he negotiated the sale of 'the Mack to the respondent. Of all the witnesses giving evidence on these allegations, Anthony Pybus has the clearest recollection of what was said. I find him a witness of truth and accept his evidence, Some time about the middle of August 1976, Adolf Zanker drove to Launceston with Neville Stafford and a Charlie Brown, Charlie Brown had agreed to purchase a logging truck from Stafford & Co. and was going to Launceston with Neville Stafford to arrange finance to purchase that logging truck, Adolf Zanker went with them to see if he could find a suitable truck to buy to replace his International, After conducting the business with the finance company, the three men went to the Launceston branch of the respondent. Peter Simons knew Neville Stafford from previous dealings 1n the logging contracting business. Neville Stafford introduced Adolf Zanker as a person who was interested in buying a used logging truck, In substance, Adolf Zanker told Peter Simons that he had an International which he did not think was suitable and was thinking of trading it in on something better and would like a Mack truck, There was no Mack truck in the Launceston branch, but Peter Simons knew that the respondent had a used Mack truck for sale at Hobart at its Moonah branch, He told Adolf Zanker that the respondent had a good Mack truck at Hobart and suggested that Adolf Zanker and Neville Stafford go down with him then and there to Hobart and inspect the Mack, Neville Stafford said they did not have the time but that he and Adolf Zanker would be prepared --10,. ae eee -10- to look at 1t at some other time. No price was mentioned, but arrangements were made to meet Adolf Zanker at Long Reach to enable an inspection of the International for the purpose of determining the amount of the trade-in allowance. Adolf Zanker said he wanted about $20,000 trade-in allowance for the International. He also said that the International was being bought on finance from Esanda and that any sale would need to be financed by Esanda Ltd, The respondent had obtained the Mack from a firm called Gangell Bros. When it had been brought into the Moonah branch yard, certain work had been done on it, Having regard to the amount allowed as a trade-in on the Mack and the cost of the work done on the Mack while at Moonah, a sale price of $25,000 was placed upon the Mack. The price was determined by Anthony Pybus in his capacity as Manager of the Moonah branch, Each month a stock list was distributed among the branches of the respondent listing the vehicles available for sale at the various branches, the price fixed for each vehicle and certain other particulars. This was why Peter Simons knew of the existence of the Mack in Hobart. The Manager of the branch at which a vehicle was available for sale was responsible for determining the value of any trade-in on sale, although that authority could be delegated to a person employed at another branch. Anthony Pybus was responsible to determine the trade-in allowance for any vehicle traded in on the purchase of the Mack, and in particular was responsible for determining the trade-in allowance for the International owned by Adolf Zanker. Peter Simons had no authority to determine the amount of that trade-in, Following a telephone call from Peter Simons, Anthony Pybus, who was going to Launceston on other business, agreed to inspect the International. Pursuant to the earlier arrangement, the inspection could take place on any day at certain times at Long Reach, On Wednesday, 25 August, Anthony Pybus, Peter Simons and another salesman employed by the respondent, Greg. Sproule, waited on the East Tamar Highway. When Adolf Zanker drove along the highway towards Long Reach to deliver a load of logs, they followed him, After the logs had been unloaded, Anthony Pybus and Peter Simons inspected the International and Anthony Pybus and Adolf Zanker then negotiated prices. Adolf Zanker was told the price of the Mack was $25,000 and -Ll., wr -ll- that price was not negotiable. Adolf Zanker wanted $20,000 trade-in allowance on the International. Following considerable haggling a trade-in allowance of $15,000 was agreed to and it was agreed between Anthony Pybus and Adolf Zanker that, subject to test driving the Mack, Adolf Zanker would purchase it on the basis that he could have it "as is, where 1s, all faults if any", The phrase "as 1s, where is, all faults if any" describes one of two methods by which the respondent normally sold used vehicles. One method was to give a warranty for a period of time, and the other was based on Clause 7 of the retail motor truck order. The method which was adopted depended solely on the trade-in value allowed. If, having regard to the actual value of the trade-in, the allowance was high, the second method was adopted. In the present case the trade-in allowance for the International was high having regard to its actual value, At the hearing, Adolf Zanker did not remember Anthony Pybus was present at Long Reach and was the person who negotiated the terms of the sale of the Mack. He thought the conversations were with Peter Simons. He remembered Greg, Sproule being present, It was only in cross examination, and after considering the matter overnight, that he finally remembered the presence of Anthony Pybus, I find specifically that the negotiations for the purchase of the Mack were conducted between Anthony Pybus and Adolf Zanker, and where there is any conflict of evidence, I prefer the evidence of Anthony Pybus, Adolf Zanker wanted a Mack truck. Anthony Pybus knew that Adolf Zanker had been having trouble with the International and believed that it was not in good condition. Even though the respondent had an agency for International trucks, Anthony Pybus believed that there would be problems in selling that particular International, During the course of the negotiations, Adolf Zanker asked Anthony Pybus what the Mack was like and was told that it had been through the respondent's workshop and had the normal checks, and anything untoward had been fixed and that the Mack had been re-painted, but that for his own information, in order to find out the state of the Mack, he should interview the previous owner, He also said that the gearbox had been attended to by A. S. Webster while owned by Gangell Brothers. Adolf Zanker was told the name of the previous owner, Don. Gangell of Gangell Brothers, but did not contact him until after the »,12.. - 12 - completion of the sale. There was a discussion about the model of the Mack and Anthony Pybus told Adolf Zanker that he thought it probably had been registered in 1972, but that the model had remained the same for many years. Arrangements were made to take the Mack to Devonport on the following day, Thursday, 26 August, for the purpose of allowing Adolf Zanker to have a test drive. The Mack was to be taken to the workshops of F.M. Stafford & Co,, which were situated at the same premises where Neville Stafford's father lived at East Devonport. The Mack was driven to Perth where it was met by Peter Simons who took over from the driver who had brought it from Hobart. Peter Simons drove the Mack to outside the workshop of F.M, Stafford & Co. at Devonport. He was met by Adolf Zanker and Neville Stafford who took the Mack for a test drive. Neville Stafford was the first to drive. During the drive they changed places and Adolf Zanker drove the Mack for the balance of the test drive. The only unusual feature noticed by them was that the steering wobbled, which allowed the Mack to wander a bit. After returning to Devonport, Neville Stafford drove the Mack into F.M. Stafford & Co.'s yard, and the cab was lifted to allow Neville Stafford and Adolf Zanker to look at the engine. In evidence, Adolf Zanker said - "Can you recall who lifted the cab up? ... Neville Stafford and myself, and Simons was there, We looked around the truck - we started in another part of 2t and Neville said, 'Well, she goes all right. What has been done to the truck?' Simons said, 'Well, she has been all done up.' He said, 'What has been done up?', and then Neville said, 'Well, I cannot look in the motor. I cannot see what has been done,' He said, 'I will have to take your word for that.' And we walked around halfway around the truck and then Simons said, 'The gearbox has been reconditioned. The brakes have been done, She has been thoroughly checked over. She is in 1A condition.' So, that was just about it, what has been said. Now, when those things were said, who was present? -.- Neville Stafford and Simons. +-13,. -13- "Did you have a discussion or was there any discussion in relation to your test drive? -.- Yes. Neville Stafford said to Simons, 'She wanders a bit on the road,' Simons said, 'Well, she will be different when you get a load on,' Mr. Stafford pointed out something to you, What did he point out? ... He pointed out that the dust cover on the back brake was missing. The dust cover on the back brake? -.. Yes, And I at the time being put 1t down to that when Simons said that the brakes been done and I know that the gearbox when he said has been done well, I put it that they forgot to put the cover back on when they done the brakes. Was any question addressed to Mr. Simons about that? ... No. Weil, Mr. Simons said the brakes been done SO ... Before or after you pointed out the dust cover was not there? ... Before, He pointed out what has been done on the truck and the brakes was included, And it was after that that you noticed that the dust cover was not on the brake in the rear wheel? -.. Yes. Can you recall whether there was any other discussion, any other part of the conversation? ... Well, Mr. Simons - we talked about the trouble I had with my truck, and I had a talk with him about fanancial - that I have not got the deposit quite enough to get in to the Mack truck so he decided to give me $15,000 for my truck to get the equity in the deposit and he said, well, he had been in the logging business himself and that I should not have any trouble with that truck because it is a Mack truck and he had been driving Macks himself and when he said that the trucks been in Al condition and it has been thoroughly checked over well, I had no questions to go against him being a salesman in a big firm like that. .-14,- -14- "What did you decide in relation to that Mack truck? ».. What do you mean by that? What did you decide an relation to buying or not buying that truck? +... I thought I had test the truck the way it had been explained to me and what he said he had been in a business himself, I took his word in that respect that I will buy a good truck and that Mack trucks had been vell known, It has come to my ears many times that Mack trucks are good log trucks and I decided if I can get finance I will buy it," The substance of the evidence given by Neville Stafford can be seen from the following extracts of his evidence - "What impressions of the truck, 1f£ any, did you draw from your period of driving 1t? ... Well, the steering, What about the steering? ... The truck was all over the road, All the steering was ~- it had a lot of play on the steering wheel, You then swapped and Mr. Zanker drove it back to your father's house? «.. That is right, What happened after you returned? -»»- I just had another little bit of a look around it. I did not interfere with nothing, I was just looking and then I left and walked up into our workshop, When you first arrived back and got out of the truck, can you recall whether any conversation was had by you with anyone or by Mr. Zanker with anyone, when you were present? -.- No, I do not recall that, So you went up into the workshop or up into the yard? ee. Yes, 15... - 15 - "What happened after that? «+. I was up there for a little while, it was not very long, and then they drove the truck up into dad's back yard where it is just an front of the workshop. What happened then after the truck had been driven up? ... Mr, Simons and Mr, Zanker come up and I was having a look over the truck then. When they come up I come out and have a look over the truck, When you say look over the truck, how did you do that? .». I went around it and I dropped the bull bar and lafted the cab, Just to explain that, when you say lifted the cab, what do you mean by that. ... Well, it has got a forward tilt cab on it. You push the cab forward to get at the engine underneath? oe. Yes. Dad you have any conversation then with Mr. Simons when Mr. Zanker was present with you? ..-. Not then. I had a look over the truck first, After you looked over the truck? os, Yes, Could you relate to the court the conversation that you had? .-. With Mr. Samons, you mean? Yes? ..- I had a look over the truck and I asked him had anything been done to the truck and he said, 'Yes, the motor has been reconditioned; the gearbox has been done and the truck is in good order,' In Al condition, he called it, I said to him, 'Can I pull the motor to pieces a bit and have a look?' 'Fair's fair', he said. I said, 'Fair enough,' 11 t6ey -~16- "What do you mean he said, 'faixr's fair'? .-» I know the words, fair go, sort of thing, you know, Was there any other discussion then? .-.. No, he was talking to - with me you still mean, do you not? Yes? ».» He was talking to Adolf and I did not know what they was talking about because that was none of my business. I had a look at the truck and as far as the rest of it was concerned, 1t was none of my business at all. So I went back into the workshop, Can you recall the substance of any conversations that took place between Mr, Zanker and Mr. Simons when you were present? ~-- No. You mentioned that when you drove the truck you found that the steering was - I forget the words that you used ~ but it was all over the road, the steering was loose. ... It was wandering, yes. Did you make any comment as to that, to Mr. Simons? -.- I said something to him about the steering and that he said something about 1t would be better when you get a load on it. I just shook me head and did not say anything to that. Do you know where the conversation took place? -.» That was up in the yard, After the truck had been brought into the yard? o+. ves, Can you recall whether there was any conversation about brakes? ... He did say that the brake had been relined, - Ll7., - 17 - "To whom did he say that? ».- I do not know who he was exactly speaking to, but Adolf and I were sort of standing together when he said that. Did you inspect any part of the brakes? ~.. Yes, the left hand back on the bogie had a baffle plate off it which I could see that that brake lining had not been relined. Did you make any comment to Mr. Simons in relation to that? -+. Not on that, no." f Neville Stafford formed the opinion that apart from the steering the Mack seemed all right and expressed his opinion to Adolf Zanker. In his evidence Peter Simons said that in driving the Mack from Perth to Devonport he did not notice anything unusual in the steering. After the Mack returned from the test drive and was driven into F.M. Stafford & Co.'s yard, Peter Simons, in evidence, said in respect of Adolf Zanker and Neville Stafford that they - "had looked around the truck and talked about the particular model, and how they would go about sitting a trailer on it, and a false back they put on the back of the cab in case the logs slip forward and hit the back of the cab," Peter Simons denies they said anything to him about the steering and denies the content of the conversations given in evidence by the other two witnesses concerning the condition of the Mack. The retail motor truck order form was filled in by Peter Simons and signed by Adolf Zanker who did not read the conditions on the back of that order form, Arrangements were made for the Mack to be left at the workshop at F,M. Stafford & Co, and for the work to 18... - 18 ~- be done on it. Arrangements were made for Adolf Zanker and his wife to make the necessary enquiries 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 driven back to Launceston. Arrangements were made for the International to be collected on the Monday. In December 1976, the then solicitors for the applicants, wrote a letter of demand to the respondents, Adolf Zanker agrees he instructed his then solicitors to write the letter and allege the matters contained in it. I quote extracts from that letter - "We are instructed that our clients were induced to acquire the truck by certain oral representations made by an employee of your company to the effect that the truck was a 1972 model which had been thoroughly checked out and found to be in good mechanical condition. We are instructed that the salesman said that all brakelinings had been renewed and the spring pads and bushes had been cenewed. Subsequently our client has found from the identification plate attached to a tappet cover that the vehicle was Manufactured in June 1970. It also appears that the truck was not in good condition. As a result it has been necessary 1n less than 8,000 miles to carry out work on the steering, brake booster, clutch pressure plate, compressor reconditioning, bushes and spring shackles, tailshaft universals, front brake lanings, king pins and other parts. It has also been found that electrolysis has set in and a hole has been eaten through the block and the number 3 piston sleeve, although our clients 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 had been through the respondent's workshops and had the normal checks and anything untoward had been fixed. It is easy to understand how Adolf Zanker could give instructions that what was said was that the Mack "had been thoroughly checked out and found to be in good mechanical condition", Further, the allegations are to be compared with what Adolf Zanker said 1n 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.. Ne - 19 - Mack was not a 1972 model. Adolf Zanker did not give evidence that an employee of the respondent had said that the "motor was re- conditioned about two years ago". On the findings made, the negotiations for the purchase of the Mack were concluded on Wednesday, 25 August, subject to test driving. In his evidence Adolf Zanker said "I thought I had test the truck the way it had been explained to me". In all probability, the arrangements to conduct the test drive at Devonport were to enable Neville Stafford to be present. He was present, He did inspect the Mack. Adolf Zanker looked to him for advice. The Mack had not been held at the Launceston branch of the respondent. Peter Simons had not seen the Mack until he had picked it up at Perth to drive to Devonport on Thursday, 26 August. He did not know what work had been done on it while at the Moonah branch of the respondent. He knew of the agreement reached on Wednesday, 25 August between Anthony Pybus and Adolf Zanker. There was no need for him to say anything about the Mack on Thursday, 26 August. In all the circumstances it is unlikely that he would have said anything to the effect of what Adolf Zanker and Neville Stafford said he said. The Court 18 required to be satisfied on the balance of probabilities that the applicants have made out their case. I find that the Mack, when test driven, did have a tendency to wander over the road and that Adolf Zanker knew of that tendency before he signed the truck order form, but was prepared to purchase the Mack knowing of that tendency. After seeing and hearing the witnesses, I am not satisfied, on the balance of probabilities, that Peter Simons said what Adolf Zanker and Neville Stafford said he said. On the evidence before the Court I am not satisfied, on the balance of probabilities, that any of the representations contained in paragraphs (b) to (h), as set out above, nor any representations to that effect, were made by any person acting on behalf of the respondent. It follows that the applicants have failed to make out a case that the respondent did acts 1n contravention of provisions of Part V of the Act. The issue of what loss or damage should be recovered by the applicants if the acts of the respondent were done in contravention -.20.. - 20 of provisions of Part V of the Act gives rise to difficult questions of fact and extremely difficult questions of law. Counsel were unable to refer me to any case in which the Federal Court had considered the general principles of law to be applied. In view of the findings already made, it is unwise that any expressions of opinion be made on an hypothetical case that one or more of the representations was or were made resulting in loss or damage to the applicants. It is not proposed to consider the other matters raised in the action. For similar reasons, in view of the findings made, it is not necessary to express any further opinion on whether the action 1s statute barred. Accordingly, there will be judgment for the respondent with costs to be taxed. I certify that this and the / q | preceding pages are a true copy of the Reesons for Judgment herein of the Honourable Mr. Justice Ki b1tneP Assécia Dated: aR c/o ———————— 7 sed