Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited [2024] FCA 441

FEDERAL COURT OF AUSTRALIA

Ezy-Fit Engineering Group Pty Limited v Microm Nominees Pty Limited [2024] FCA 441 File number: SAD 99 of 2019

Judgment of: BANKS-SMITH J

Date of judgment: 3 May 2024

Catchwords: CONTRACT - agency - principal and agent - ostensible authority - implied actual authority - general principles - contract to buy lathe and milling machine - whether contract made between purchaser and dealer in Australia or between purchaser and manufacturer in Poland CONTRACT - construction - pre-contractual representations - whether terms implied - whether statements in technical brochures incorporated as express terms SALE OF GOODS - general principles - liability of seller - fitness for purpose - whether breach of term implied under s 14(a) Sale of Goods Act 1895 (SA) CONSUMER LAW - allegation of misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) - conduct by way of representations made in technical brochures - pre-contractual representations - whether machine was defective and failed to perform in accordance with representations - reliance - whether representations were misleading CONSUMER LAW - pleading of numerous disaggregated representations - whether pre-commissioning and post-commissioning representations made DAMAGES - where delivery time estimated - whether delay in performance caused applicants to lose tender for lucrative opportunity to manufacture periscopes - whether delay in performance had impact on receipt of government grant DAMAGES - general principles - whether machine capable of repair - whether rectification reasonable - rectification costs - whether allowance should be made for rectification costs where damages assessed under s 236 of the ACL DAMAGES - assessment of damages - loss of profits - whether defective machine resulted in lost opportunity to profit from high-end work - appropriate method of calculating damages - hypothetical alternative purchase - assessment of probability of opportunity eventuating - fair compensation - date and period of assessment - calculation TORT - negligence - standard of care of manufacturer EVIDENCE - expert evidence - where evidence of valuer rejected at trial - whether reasoning of valuer disclosed EVIDENCE - parliamentary privilege - whether s 16 of the Parliamentary Privileges Act 1987 (Cth) prohibits using statements made in a Senate Estimates Committee hearing for making factual findings EVIDENCE - whether failure to call witnesses gives rise to Jones v Dunkel inference