Hypax Pty Ltd (t/as Doneyco) v N & M Gangemi Pty Ltd [1998] FCA 1102

FEDERAL COURT OF AUSTRALIA CONTRACT – express representation harvester would be in "harvestable condition" on delivery – meaning of "harvestable condition" – whether breach of this condition. DAMAGES – causation – operative cause of ordinary common sense and experience – whether defects attributable to harvester were an operative cause of damage – remoteness – whether hail storm could reasonably be contemplated in event of breach. PLEADINGS – contractual condition as pleaded refers to expression "wheat crop" – no specification as to density of wheat crop – whether open to find breach of contract because harvester not able to harvest light density wheat crop – term "harvestable condition". Water Board v Moustakas (1988) 180 CLR 491, followed Nescor Industries Group Pty Limited v Miba Pty Limited (1997) 150 ALR 633, followed March v E & M H Stramare Pty Limited (1991) 171 CLR 506, followed Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64, cited McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, cited

HYPAX PTY LIMITED (T/AS DONEYCO) v N & M GANGEMI PTY LIMITED WAG 132 of 1997 FRENCH, TAMBERLIN AND RD NICHOLSON JJ PERTH (DELIVERED IN SYDNEY) 8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 132 of 1997

on appeal from a single judge of the

federal court of australia

BETWEEN: HYPAX PTY LIMITED (T/AS DONEYCO)

(ACN: 009 016 095)

Appellant

AND: N & M GANGEMI PTY LIMITED

(ACN 008 848 422)

Respondent

JUDGES: FRENCH, TAMBERLIN & R D NICHOLSON JJ

DATE OF ORDER: 8 september 1998

WHERE MADE: SYDNEY (heard in PERTH)

THE COURT ORDERS THAT: The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.