Allwest Clearwater Pty Ltd v C.C. Kenny Pty Ltd [1986] FCA 595

IN THE FEDERAL COURT

OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION

CORAM: FRENCH J.

1 DECEMBER 1986

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NOT INTENDED FOR DISTRIBUTION

No. WAG 37 of 1986

BETWEEN:

ALLWEST CLEARWATER PTY LIMITED

and

Applicant

C.C. KENNY PTY LIMITED

Respondent

EX TEMPORE REASONS FOR JUDGMENT

GENERAL

This is a motion whereby the applicant seeks an order

that the respondent within 14 days file and serve answers to

certain of the applicant's interrogatories which were delivered on

9 September 1986. The statement of claim filed in the proceedings

by the applicant discloses that 1t seeks damages against the

respondent arising out of an alleged contravention of s.52 of the

Trade Practices Act 1974 and a breach of a contract arising out of

the purchase by the applicant from the respondent of certain

vending machines.

2s

In its statement of claim the applicant alleges that the respondent, in the course of negotiations in late April and early May 1983 and in order to induce the applicant to enter into a contract for the purchase of the machines, made certain oral representations to its sales manager, one Barry Kidd. Without setting the representations out in full 1t is sufficient to say that they related to the availability, the location = and installation, operating costs and quality guarantees attaching to the machines to be supplied. It is further alleged that another representative of the respondent, one P. Kenny, orally represented to the applicant that a machine had been installed by the respondent and was performing in accordance with the

representations made in a previous advertisement and by Barry

Kidd. The applicant contends that these representations were

false in various particulars which have also been set out in the

statement of claim.

The respondent, by its defence, denies that Barry Kidd was employed by it as a sales manager as alleged or at all and denies that it made the representations alleged and says in any event that so far as the vending machines were concerned it had been willing and able to maintain them at all material times, any alleged lack of maintenance of the machines was caused or contributed to by the applicant's failure to deliver them to the respondent for maintenance, that if they broke down it was due to the applicant and other persons for whom the respondent was not