CROSBY AND ANOR (t/as CROSBY TRANSPORT) v SYDNEY KENPREST PTY LTD [1992] NSWCA 51

CROSBY AND ANOR (t/as CROSBY TRANSPORT) v SYDNEY KENPREST PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and CRIPPS JJA 17 August 1992, 17 August 1992 [1992] NSWCA 51

APPEAL from District Court — Claim for goods and services — Defence that goods not fit for the purpose required — Judgment given for plaintiff — Judgment turns on acceptance of plaintiff's witness — Acceptance not wrong as based on errors of fact — Finding not wrong by reason of errors of fact by judge — No issue of principle.

ORDER Appeal dismissed with costs.

Mahoney JA In these proceedings the plaintiff claimed to have supplied truck tyre and retread services to the defendants between, as it appears in the Statement of Claim, 6 June 1983 and 22 October 1983. It claimed $5,662. A concession was made in respect of $1,800 and the amount in dispute was the sum of $3,862.

The defence set out by the defendants was that the tyres were supplied for a purpose which was brought to the notice of the plaintiff and the tyres were not fit for the purpose (I paraphrase the terms of the Statement of Defence in this regard).

On 20 October 1989 after a trial in the District Court his Honour Judge Herron found for the plaintiff and gave judgment for $5,662 and $3,000 interest. The defendants have appealed to this Court against his Honour's judgment.

The learned judge held that the tyres were fit for the purpose for which they were intended to be used by the defendants and that in so far as there was a problem in relation to them that problem arose from the condition of the, as I shall describe it perhaps inaccurately, fabric of the tyres and the use which the defendants put them to. The learned judge said in his judgment in this regard:

"\.. Well, at first to be quite frank I was not impressed by this particular submission put on behalf of the plaintiff but on reflection it seems to me that I should accept Mr Weir that indeed he had an association with the retreading of the tyres at all material times and that with one exception the tyres went from the plaintiff's premises in a proper condition and suitable for the use for which they were to be put and, as I say, I accept Mr Weir as a witness of truth and as being completely honest..."