Beaton v Moore Acceptance Corporation Pty Ltd [1959] HCA 59

High Court of Australia Dixon C.J. Taylor and Windeyer JJ. Beaton v Moore Acceptance Corporation Pty Ltd [1959] HCA 59

ORDER Appeal allowed with costs. Order of the Supreme Court of Victoria discharged. In lieu thereof order that judgment be entered for the plaintiff upon the claim in its action for the sum of £3,067 13s. 2d. with costs of the action and that judgment be entered for the defendant Beaton upon his counterclaim against the plaintiff for £2,750 with costs of the counterclaim. Order that the judgments upon the plaintiff's claim and the said defendant's counterclaim against the plaintiff be set off and that the plaintiff recover the balance only, viz., £317 13s. 2d. and be at liberty to issue execution therefor. The costs of such claim and counterclaim when taxed are to be set off and execution may be issued for the balance. Further order that the claim of the said defendant against Moore Road Machinery (Vic.) Pty. Ltd. and the counterclaim of Moore Road Machinery (Vic.) Pty. Ltd. be severally dismissed and that each of these parties abide their own costs of and incidental to such claims.

Cur. adv. vult.

The Court delivered the following written judgment:

Nov. 27 Dixon C.J., Taylor and Windeyer JJ.

In February 1954 the appellant, who is a farmer and land clearing contractor acquired from the first-named respondent (hereinafter referred to as the Acceptance Company) a piece of equipment described as a Fowler Challenger tractor "with Moore hydraulic dozer attachment". So constituted the unit was a "bulldozer" and there can be no question that the acceptance company knew, as the appellant alleges, that he required the equipment for the purpose of using it in the course of earth-moving operations. In the Supreme Court it was found that by reason of proved defects it was unfit for this purpose but, for reasons which will appear, the appellant failed in his attempt to recover damages on this and other grounds which were then advanced. However, before reference is made to the manner in which the appellant's claims were framed and to the reasons why they failed it is necessary to mention that the appellant assumed possession of the tractor pursuant to a hire purchase agreement under which he was the "hirer" and the Acceptance Company was the "owner" and to recount the circumstances in which that agreement came to be executed.