Greco, Charles & Anor v Bendigo Machinery Pty Ltd & Anor [1984] FCA 147

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No. VG 175 of 1983

GENERAL DIVISION

EX TEMPORE JUDGMENT

BETWEEN:

CHARLES GRECO and PETER GUSiSLI Applicants and. -

- BENDIGO MACHINERY PTY. LTD. and : ERNEST ALFRED SENNINGS . Respondents

JUDGE: Woodward Jd.

DATE: 5 June 1984

REASONS FOR JUDGMENT

This is one of those unfortunate cases - unfortunate in that it has to come before the courts - in which I am satisfied that decent and honest businessmen have had a falling out which did not involve any wrong doing on anybody's part, but as a result

of it a number of commercial losses have been. incurred.

If they had been able to reach som= compromise solution by way of sharing those losses they would not have been too aifficult for either to bear. In the event, of course, the losses

have been considerably increased by the costs of litigation and I

now have to decide on whose shoulders virtually the whole burden has to fall; because it is not open to the court to do anything other than find liability or no liability, and if liability 1s found then most of the damages that have been claimed would have

to follow.

That is the task that I now have to undertake, doing the

best I can with the evidence that has been put before me, including the various accounts of events, which I am satisfied are substantially truthful on both sides. Naturaliy time has created difficulties about accurate memory, and there 1s no doubt that some things I have been told are not accurate. There is also, in a number of areas, room for honest difference of opinion as to

causes of events. Not having been there to see them happen, I

just have to do the best that I can on the evidence before me.

It is clear that the applicants purchased the front end loader in question from the respondent company on 25 June 1983, at

a cost of $30,000. Before that they had had an opportunity to