NOVELTY FAIR THEATRES PROPRIETARY LIMITED V. RALPH SYMONDS LIMITED

10 22 if / Git

oak ' IN THE HIGH COURT OF AUS RALIA

NOVELTY FAIR THEATRES PTY. LTD.

if

Judgment delivered alSydnay on. Wednesdays 6th April 196

WM, Houston, Gort. Print, Melb,

NOVELTY FAIR THEATRES PROPRIETARY LIMITED Ve

RALPH SYMONDS LIMITED

ORDER

Appeal dismissed with costs.

Ov. ATR THEAT. ROP! 'ARYL:

Ve

(ONDS LIMITED

Zuenenr

AYLOR J

NOVELTY FAIR THEAT! PROPRIETARY LIMITED Ve

RALPH SYMONDS LIMITED

This appeal is concerned with the rights of the parties under a contract whereby the appellant agreed to purchase from the respondent a quantity of "Alumply" for use as a component in the erection, in a suburb of Melbourne, of an open-air moving picture screen. The name "Alumply" denotes a product manufactured by the respondent and it consists of sheets of specially brushed aluminium which are affixed to a backing consisting of plywood. Its reflective capacity is said to be high and after discussions between the parties the appellant and its advisers decided that alumply should be purchased and used as a facing for the screen in question. As erected the screen was unsatisfactory. So much is common ground. The principal defect and the only one with which we need concern ourselves was that from the moment of its erection the screen exhibited, in use, a number of dark lines. These were said to be about two inches wide and they extended vertically from the top to the bottom of the screen. In these circumstances the appellant brought an action against the respondent in the Supreme Court of Victoria in which it claimed damages for breach of contract. The claim was resisted by the respondent who also counterclaimed for the unpaid balance of the price. In substance, the appellant's claim was based upon the alleged breach of conditions, expressed and implied, relating to the suitability of the alumply for the purpose for which it had been purchased. The action was heard without a jury and, in the result, judgment was entered for the respondent both on the claim and counterclaim This appeal is now brought in an attempt to have that judgment set aside and to have judgment entered for the appellant.