MODE MOTOR PTY LTD v COL CRAWFORD PTY LTD [1989] NSWCA 146

MODE MOTOR PTY LTD v COL CRAWFORD PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER JJA and Hope AJA 29 August 1989, 29 August 1989

[1989] NSWCA 146

Summary judgment — sale of motor vehicle — warranty as to no encumbrances — action for breach of warranty — denial of existence of valid encumbrance — District Court Rules Part 11A r2 onus on applicant to show no real question to be tried — appeal allowed. ORDERS Appeal allowed. Judgment below set aside and matter remitted to District Court. Respondent to pay costs of application and of appeal and to have a certificate under the Suitors' Fund Act in respect of the costs of the appeal.

Hope AJA This is an appeal from a decision of his Honour Judge Conomos striking out the verified defence which the defendant had filed in proceedings brought against it by the plaintiff and ordering entry of summary judgment in favour of the plaintiff in the sum of $8,937.57, together with interest.

The circumstances in which his Honour made these orders were these. On or about 3 July 1986 the plaintiff bought from the defendant a Ford motor vehicle registered number NOT 826. On 4 July 1986 Mr Lyall on behalf of the defendant gave to the plaintiff a document warranting that the vehicle was unencumbered. On 24 July 1986 the plaintiff sold the vehicle to Mr Michael Valkovich. In December of that year Mr Valkovich informed the plaintiff that the vehicle had been repossessed on behalf of UCL Finance Limited. Mr Crawford representing the plaintiff, having made inquiries of UCL Finance Limited, was told that there was an amount of $8,937.57 owing to UCL Finance Limited under a lease in respect of which an identification number was given. The plaintiff accordingly paid that sum to UCL Finance Limited and seeks to recover that amount from the defendant as damages for the breach of the warranty in respect of encumbrances.