FRANKIPILE PTY LTD v ACSAS PTY LTD [1988] NSWCA 46

FRANKIPILE PTY LTD v ACSAS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and McHuGH JJA 17 June 1988, 7 November 1988

[1988] NSWCA 46

CONTRACT — bare hire of crane — whether warranty or representation as to capacity upon which no question of principle involved. EVIDENCE — vital conversation between two witnesses one of whom unable to be found to give evidence at trial — no inference available under rule in Jones v Dunkel (1959) 101 CLR 298 — consideration of whether the evidence of only witness in the field should be scrutinised with the care reserved for testimony of those who have dealt with the dead and claim against their estates — Brown v Wylie (27 November 1980, unreported) per Powell J and Biro v The Union-Fidelity Trustee Co of Australia Ltd (13 December 1982, unreported) per Needham J referred to. EVIDENCE — discussion of consequence of failing to answer a letter where a reply might properly be expected, L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (1981-82) 150 CLR 225 per Gibbs CJ and Thomas v Hollier (1984) 156 CLR 152 per Gibbs CJ referred to. (at page 2) DAMAGES — mitigation — onus on defendant — Munce v Vinidex Tubemakers Pty Limited [1974] 2 NSWLR 235

applied — compensating benefit — British Westinghouse Co v Underground Railway [1912] AC 673; Jebsen v East and West Indian Dock Co (1875) LR 10 CP 300 and The World Beauty (1970) P 144 cited. ORDER Appeal dismissed with costs.

Samuels JA I agree with the conclusions reached by Mahoney JA whose draft judgment I have had the opportunity of reading. I need not repeat all the facts which he has set out, but I add some reasons of my own out of deference to the arguments of Mr Sullivan and Mr Webber for the appellant.

The first issue in the appeal was whether the learned judge, Freeman DCJ, was wrong to have concluded that the respondent did not represent to the appellant that the Crane, the subject of the hiring, had a line pull capacity of fifteen tonnes. The representation alleged was said by the appellant to have been made in a conversation between Mr McWhinnie for the respondent and Mr Von Skatulla for the appellant. Mr Von Skatulla could not be found at the time of the trial and did not give evidence. It was not suggested that his absence was such as to attract any adverse inference of the kind referred to in Jones v Dunkel (1959) 101 CLR 298. The finding which the judge made was challenged on four principal grounds. First of all, Freeman DCJ, it is said, appears to have rejected the existence of any representation about a capacity of fifteen tonnes on the ground that the defendant, that is the appellant, had not in its defence or cross claim pleaded any allegation to that effect. That view of the pleadings is incorrect because in paras 3 and 4 of the amended defence and in paras 4 and 5 of the amended cross claim the appellant claimed a condition or warranty or representation (the precise legal ground is not now to the point) to the effect that the crane would have a line pull capacity of up to fifteen tonnes or, alternatively, of at least fourteen tonnes. I should however make it plain that his Honour did not reject this part of the appellant's claim merely because, as he thought, it had not been pleaded. He did however comment upon the absence of the allegation as reinforcing, I would think, his conclusion that there was no "acceptable evidence from which I would