KEITH GOODMAN USED CARS PTY LIMITED v Geoffrey NEEDHAM [1989] NSWCA 118

KEITH GOODMAN USED CARS PTY LIMITED v NEEDHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, CLARKE and MEAGHER JJA 21 April 1989, 21 April 1989 [1989] NSWCA 118

SALE OF GOODS — MOTOR VEHICLE — IMPLIED TERMS Sale of goods — second-hand motor vehicle — transaction effected through financier — sale to financier and lease to intended purchaser — implied terms as to fitness of vehicle to be driven on public roads and as to merchantable quality — Trade Practices Act — Motor Dealers Act 1974, s4(3) and s27 — Evidence as to defect existing at time of transaction — Reliance by defendant on expert evidence — Finding that defect existed based on acceptance of plaintiff's evidence and of evidence (including expert evidence) of witnesses called for plaintiff and doubts as to credibility of defendant's expert witnesses — Held trial judge entitled to reach finding in this way — findings affirmed — appeal dismissed. ORDER Appeal dismissed with costs.

Hope JA The plaintiff was supplied with a Triumph Stag sedan motor vehicle by the defendant on 7 July 1980. The plaintiff did not buy the vehicle from the defendant but the sale transaction was effected through a finance company, Custom Credit Corporation Limited, which in turn leased the vehicle to the plaintiff. At the time of the trial the payments due to the financier had apparently been completed and the debt owing on the vehicle was fully paid.

The plaintiff alleged that when the car was used after it had been so hired it was deficient in that it continually overheated. He accordingly took proceedings against the defendant basing his claim on three different grounds: first, upon an implied warranty under the general law as to the fitness of the vehicle for the purposes of being driven on public roads, more specifically, that the vehicle was in a fit and proper roadworthy condition and free from defects; secondly, upon an obligation arising from the provisions of the Trade Practices Act that the vehicle was of merchantable quality; and thirdly upon the provisions of s27 of the Motor Dealers Act 1974.