KENNY V. WEBER

SL

IN| THE HIGH COURT OF AUSTRALIA

ORIGINAL

REASONS FOR JUDGMENT

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RM74/30574

BENEDICT MARCUS KENNY

DONALD EDWARD C. WEBER

JUDGMENT ORAL

MURPHY J.

BENEDICT MARCUS KENNY

DONALD EDWARD C. WEBER

This is an action between residents of different states brought under S.75(iv) of the Con- stitution.

I propose to make findings determining the issues as raised in the statement of claim, the defence and counter claim and the reply.

On the disputed issues, I find for the plaintiff and against the defendant. In particular, I make the following findings:

On or about 20 October, 1970, the plaintiff agreed with the defendant that upon the defendant designing and manufacturing a machine suitable for harvesting ripe tomatoes and delivering the same to the plaintiff, and upon the tomato harvester being reasonably suitable for harvesting ripe tomatoes, the plaintiff would purchase the tomato harvester, the price to be determined in an amount near to $5000.

The defendant designed and manufactured the the machine for that purpose and the machine was delivered in January, 1972, to the plaintiff at the

defendant's premises.

The machine was tested on the plaintiff's property at Caroona, New South Wales, in the presence of the defendant in April, 1972. It was not then reasonably suitable for harvesting ripe tomatoes. It was valueless to the plaintiff. On the ground that the machine was not reasonably suitable for harvesting tomatoes, it was rejected by the plaintiff. It-remains on the premises of the plaintiff.

The plaintiff, at the request of the defend- ant and in order to assist in the development of the Machine, paid the defendant in several sums a total of $4500 as advances against the purchase price, should a purchase be made. The plaintiff demanded the repay- ment of the $4500 together with $500 for the transport of the machine from Melbourne to the plaintiff's premises and other expenses. This claim for $500 has been abandoned.