Moss, Gerald Carew v Bergood Pty Ltd [1987] FCA 733

«JUDGMENT No.733 787,

*.

Limiren DistRigution -

IN THE FEDERAL COURT OF AUSTRALIA

) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WA G106 of 1986 ) )

GENERAL DIVISION

BETWEEN: GERALD CAREW MOSS Applicant AND: BERGOOD PTY LIMITED Respondent MORLING J. 11 November, 1987

ORAL REASONS FOR DECISION

The applicant sues the respondent for damages for alleged breaches of ss.52 and 53(c) of the Trade Practices Act 1914 and of s.14 of the Sale of Goods Act 1895 (W.A.). The case arises out of the sale by the respondent to the applicant of a machine known as the "Bergood Brickmaker". The machine is a portable machine which manufactures bricks from cement stabilized material, including various types of soil. A unique feature of the machine is that the bricks produced do not need to be dried or baked in a kiln but may be used after a

short period of curing.

In May 1985 Mr Moss went to the premises of the respondent at Dee Why in the State of New South Wales. According to him, he had a discussion with Mr Gary Foster, a director of the respondent. Foster gave him a brochure. It

appears from the evidence that the brochure does not

2.

specifically relate to the machine which was actually purchased. In fact, the brochure which relates to the subject machine was not produced until some time after May 1985. Nevertheless, the statements made in the brochure are of some

relevance, as I shall later point out.

The brochure included the following statements:

"The Brickmaker, really a mini-factory, is completely self-contained with its own power unit. The Brickmaker produces bricks or pavers literally anywhere at a rate of 500 per hour"

In another section of the brochure, the following statement is

made:

"Produces 500 quality face bricks per hour - 4000 bricks per 8-hour day."

When Moss discussed the possible purchase of a machine with Foster they had some conversation as to the number of men who would be required to operate the machine. Although the brochure states or infers that one man only can use the machine to produce 500 bricks per hour, it is clear from the evidence that the machine was not bought on that basis. Moss made it clear in his evidence that in his discussions with Foster prior to purchase it was made clear that two men would be required to operate the machine effectively. One man is required to feed cement and soil into the top half of the machine, which can be described as the mixer, and another man is required to otherwise operate the machine and take the manufactured bricks