Gartenmann Ceiling Systems Australia Pty Ltd & Anor v Pollution Control Engineering Pty Ltd & Ors [1987] FCA 744

*

FOR LIMITED DISTRIBUTION

SUDOMENT No. TAS Sin

IN THE FEDERAL COURT OF AUSTRALIA)

) NEW SOUTH WALES DISTRICT REGISTRY)

) GENERAL DIVISION ) No. G180 of 1985

BETWEEN: GARTENMANN CEILING SYSTEMS AUSTRALIA PTY. LIMITED First Applicant

DRAUGHT INDUSTRIES PTY. LIMITED Second Applicant

AND: POLLUTION CONTROL ENGINEERING PTY. LIMITED First Respondent

PETER KINGSLEY BONSER Second Respondent

GRAEME JOHN NEALE Third Respondent

POLLUTION CONTROL ENGINEERING PTY. LIMITED Cross-Claimant

GARTENMANN CEILING SYSTEMS AUSTRALIA PTY. LIMITED Cross—-Respondent

CORAM: GUMMOW J. - \A

DATE: 23 DECEMBER 1987 so ON PLACE: SYDNEY oo coe E 1! ~. on ~ REASONS FOR JUDGMENT Tm a ~ o\ Fedhis . COURT OR * "t ~ A, TAWA a

INTRODUCTION LPP ee

IT von

The dispute between the parties concerns the efficacy of a conveyorised powder coating plant for metal ceiling tiles, used primarily in office and like premises. The plant was manufactured, designed and supplied by the first respondent

("Pollution Control") for use upon the premises of the first

applicant (""Gartenmann") at Tomago, Newcastle. The plant became "operational" in the last week of August 1983. The applicants seek damages. They base their claims in contract (including collateral contract), tort (negligence, "negligent misrepresentation", and deceit) and also claim for

contraventions of ss.52 and 53 (c) of the Trade Practices Act

1974 ("the TP Act"). Despite the array of causes of action, the parties were, in the end, not seriously at issue as to matters of law. However, they were at serious issue upon a number of issues of fact. Once those issues are resolved, the questions of legal liability will fairly readily be answered.

The principal heads of complaint concern alleged deficiencies or short-comings in production rate, production cost (though these are inter-related) and in quality of the paint-finish and gloss level of the tiles produced from the plant. In May 1984, two additional powder guns were added to the automatic powder booth and in May 1985, new reciprocators were installed in the same booth. The meaning of these terms will shortly appear. What is of immediate significance is the applicants' view, expressed in oral evidence, that, following these changes, the plant began to produce a finished product which has been, generally speaking, of acceptable quality, although complaint still is made of production rate and cost.