International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16

High Court of Australia Dixon C.J. McTiernan, Williams, Fullagar and Taylor JJ. International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co [1958] HCA 16

ORDER Appeal allowed with costs. Cross-appeal dismissed with costs. Discharge so much of the order of the Full Court of the Supreme Court as orders that a new trial be had and as deals with the costs of the former trial and of the new trial. In lieu thereof order that a verdict and judgment be entered for the defendant with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

April 22 Dixon C.J., McTiernan, Williams, Fullagar and Taylor JJ.

By the order of the Supreme Court which is the subject of this appeal and cross-appeal a verdict for the plaintiff in an action for breach of contract was set aside and a new trial ordered. The defendant, who obtained the order for a new trial, had contended before the Supreme Court that the Court should go further than setting aside the verdict for the plaintiff, that the Court should order a verdict and judgment for the defendant. Now by leave the defendant appeals to this Court from the refusal of the Supreme Court to follow that course. On the other hand the plaintiffs complain of the order setting aside the verdict which they had recovered and by a cross-appeal they seek to have that verdict restored.

The action was brought by a firm of farmers and graziers for breach of warranty on the sale of an agricultural implement or machine, namely an International automatic pick-up hay baler a model called No. 50-T. In buying the machine the plaintiffs dealt, not with the defendant, the International Harvester Company of Australia Pty. Ltd., but with a company carrying on business at Gunnedah in New South Wales called Hassan & Kensell Pty. Ltd. That company is now in liquidation. The plaintiffs did issue a writ against Hassan & Kensell Pty. Ltd. claiming damages for breach of warranty by them as vendors of the machine but that action has not been brought to trial. The defendant company in the present action denies that any contractual relations ever existed between it and the plaintiffs; it maintains that Hassan and Kensell Pty. Ltd. sold the machine as principals to the plaintiffs, that they did not sell as agents for the defendant company and had no authority to contract on behalf of the defendant company but on the contrary bought the machine from the defendant company and resold it to the plaintiffs. It was also contended for the defendant company that in any case a written instrument constituted or at least formed part o the contract of sale and that by the terms of that instrument the very warranty or warranties on which the plaintiffs had recovered were negatived or excluded. The appeal and cross-appeal covered between them no inconsiderable number of other points but this Court having heard the foregoing questions discussed by counsel for the appellant and for the respondents formed a provisional opinion that the defendant's contention as to both the matters was correct. It seemed more satisfactory in these circumstances to take time to consider the question whether this provisional opinion we had formed should be given effect to before entering on the argument of the matters which merely affected the question whether the former trial had so miscarried that a new trial must be had. Having considered what must be the basal question in the case, namely whether the defendant company came under any contractual liability to the plaintiffs, we are confirmed in the view that clearly it did not do so. We think that on that simple ground the action ought to have failed. We state the conclusion positively in this form because we do not think that upon the evidence there was any question for the jury on this point.