LAWN CHIEF PTY LTD v JORDY HOLDINGS PTY LTD [1990] NSWCA 115

LAWN CHIEF PTY LTD v JORDY HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY JA and Hope AJA 22 November 1989, 29 January 1990

[1990] NSWCA 115

SALE OF GOODS — supply of lawnmower parts washers — allegation of purchaser that goods were not of merchantable quality — HELD reversing the decision of the trial judge, that the goods were not of merchantable quality.

SALE OF GOODS ACT 1923 — remedies — effect of s57 and course of dealing between parties considered.

ORDERS

Appeal allowed.

Verdict and judgment for the respondent set aside. Judgment for the appellant.

Respondent to pay the appellant's costs of the appeal and of the proceedings at first instance. If respondent is otherwise entitled, it is to have a certificate under the Suitors Fund Act.

Gleeson CJ The proceedings the subject of this appeal arose out of the sale bythe respondent to the appellant of forty Quik-Kleen lawnmower parts washers. The respondent claimed payment of the agreed purchase price of $350 per unit in respect of thirty-eight of the forty parts washers supplied. Credit was given for the price of the other two, for reasons which will appear below. Mitchelmore DCJ entered judgment for the respondent in the sum of $13,300 (38 x $350), together with interest up to judgment, agreed by the parties to be $13,564. Judgment was therefore entered for a total of $26,864.

Although additional issues were raised at the trial, on this appeal the appellant relies principally upon s19 of the Sale of Goods Act, contending that there were breaches of implied conditions in the contract of sale in that there were defects in the goods which rendered them unmerchantable and unfit for the purpose for which they were intended. The learned trial judge found that the goods were of merchantable quality and were not unfit for the purpose for which they were intended. He based his finding on "pragmatic evidence of the plaintiff's continuing extensive sales and wide use of the machines". The nature of that evidence will be considered below. His Honour also found that there was no condition in the contract, express or implied, that the goods would be fit for the purpose intended, which he described as the safe cleaning of lawnmower parts. In his Honour's view, even if such a condition could otherwise have been implied into the contract, the appellant had not relied on the respondent's skill or judgment.