PARK v WRAGGE [1993] NSWCA 204

PARK v WRAGGE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 29 March 1993, 8 April 1993 [1993] NSWCA 204

SALE OF GOODS — sale of barley seed — reliance on vendor's skill or judgment — express warranty as to condition — seed fails to germinate and later determined as "dead" — claim by purchaser against vendor — alleged representation of germination test 100% successful — trial judge (McDevitt DCJ) finds that purchaser, a more experienced farmer, did not, in fact, rely on the vendor' 8 skill and judgment — finds that express warranty as to germination test was not made as stated — on appeal to the Court of Appeal — held: (Priestley JA; Kirby P and Clarke JA concurring):

(1) Having regard to the trial judge's finding of fact that there was no reliance by the purchaser on the vendor, the claim based on s19(1) Sale of Goods Act 1923 failed;

(2) There was no proper basis for reversing the trial judge's finding as to reliance and in particular having regard to the purchaser's own statement that he was very experienced in the selection of grain and was a "better" farmer than the vendor;

(3) There was also no basis for disturbing the judge' s conclusion that no express warranty of a germination test showing 100% germination was made;

(4) Accordingly, the challenge to the judgment of the District Court failed.

Coghlan v Cumberland (1898) 1 Ch 704; Abalos v Australian Postal Commission (1990) 171 CLR 167 applied.

APPEAL - Court of Appeal - challenge to fact-finding - advantages of trial judge - determination of whether farmer relied upon another farmer's skill and judgment - advantage of seeing both witnesses - determination of whether representation as to quality of barley seed expressly made - advantage of seeing witnesses - findings of fact not disturbed.