Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

Federal Court of Australia

Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 File number(s): NSD 1161 of 2020

Judgment of: JACKMAN J

Date of judgment: 27 April 2023

Catchwords: CONTRACTS – whether a contract for the sale and purchase of an aircraft contained express terms as to the dry empty weight, maximum take-off weight and airworthiness of the aircraft – where the contract incorporates a price list being an Excel spreadsheet – where the price list does not include weight figures for various components – whether a warranty as to a "certificate of airworthiness" should be construed as a warranty as to a certificate issued pursuant to reg 21.186 of the Civil Aviation Safety Regulations 1998 (Cth) – whether terms concerning the weight and airworthiness of the aircraft could be implied in fact – whether the aircraft was purchased for a particular purpose within the meaning of the Goods Act 1958 (Vic) CONSUMER LAW – whether misleading or deceptive representations were made as to the weight of an aircraft or its airworthiness – where there is competing evidence as to the occurrences of oral conversations – looking at the course of conduct as a whole, and not taking a price list in isolation, some representations found not to have been made – manufacturer's statement of compliance misleading or deceptive DAMAGES – claim for Potts v Miller damages – competing expert evidence as to the diminution in value of the aircraft – relevant date for assessment of damages is the date of acquisition of the aircraft – where any loss not caused by the misleading or deceptive conduct – no unreasonable failure to mitigate loss EVIDENCE – where evidence of memories of the substance or gist of a conversation given in direct speech – no rule of the law of evidence that evidence of conversations to be given in direct speech – evidence should be given in direct speech only if the witness can remember the actual words used