John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1

High Court of Australia Kitto, Taylor and Owen JJ. John McGrath Motors (Canberra) Pty Ltd v Applebee [1964] HCA 1

ORDER Appeal allowed. Judgment of Supreme Court set aside. In lieu thereof order that judgment be entered for defendant without costs. No order as to the costs of the appeal.

Cur. adv. vult.

The Court delivered the following judgment:—

1964, Feb. 4 Kitto, Taylor and Owen JJ.

This is an appeal by special leave from a judgment of the Supreme Court of the Australian Capital Territory (Dunphy J.) by which damages amounting to £183 10s. 0d. were awarded to the plaintiff in an action of fraud. The original plaintiff was Joseph Northey Applebee but in the course of the proceedings he died and his widow was appointed administratrix ad litem for the purposes of the action.

The defendant, now the appellant, was a dealer in new and second-hand motor cars and, in October 1961, it had for sale in its showroom at Canberra a 1960 model Ford Prefect sedan car. It was a new car in the sense that it was not second-hand. It had not earlier been sold by retail and had not been used except to drive it to the defendant's showroom from Sydney, a normal method of delivering new cars to country distributors for sale by them. It was a current model which had been manufactured in May 1960 and delivered by the manufacturer to a retail distributor in Sydney in December 1960. It had remained in stock in that distributor's depot in Sydney until the beginning of October 1961 when it was driven to the defendant's premises in Canberra, there to be offered for sale to the public. Due, no doubt, to the time that had elapsed since it had left the factory, it had deteriorated in certain respects. The seat covers had perished, as had the headlight rubbers. The duco on some parts of the bodywork had faded and there were some stains on the upholstery.