Daimler Chrysler Services AustraliaTollan Real Estate Peter Gregory Londish [2006] NSWLC 3

Local Court of New South Wales

CITATION: Daimler Chrysler Services AustraliaTollan Real Estate Peter Gregory Londish [2006] NSWLC 3 JURISDICTION: Civil Daimler Chrysler Services Australia Pty Ltd PARTIES: Tollan Real Estate 1st Defendant Peter Gregory Londish 2nd Defendant Daimler Chrysler Asia/Pacific Pty Ltd Third Party FILE NUMBER: 2098 of 2004 PLACE OF HEARING: Downing Centre DATE OF DECISION: 02/10/2006 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Downing Centre - 10 February 2006 - H.C.B. Dillon - Contract -- Whether first defendant entitled to rescind contract – Whether plaintiff "supplied" a motor vehicle – Whether vehicle of merchantable quality – Indicia of merchantability for motor vehicles – Whether a potential defect requiring recall of vehicle sufficient to make vehicle unmerchantable -- Whether consumer entitled to have higher expectations in respect of new luxury vehicles -- Relief. - Trade Practices – Whether distributor of vehicle is a "manufacturer" – Whether plaintiff a "linked credit provider" – Whether third party a "supplier" linked to a credit provider. - Practice and procedure – Problems caused by overly complex pleadings – Problems caused by overly voluminous tenders of documents – Problems caused by delays in making submissions – Problems caused by over-reliance on lengthy written submissions – Emphasis in Civil Procedure Act 2005 LEGISLATION CITED: Civil Procedure Act 2005 s.56 Trade Practices Act 1974 ss. 4, 4C, 66, 68, 71, 73, 74A, 74B, 74D, 75A. Australian Guarantee Corporation Ltd v Jennings [1981] 1 NSWLR 50. Bernstein v Pamson Motors (Golders Green) Ltd [1987] 2 All ER 220. Cavalier Marketing v Rasell (1990) 96 ALR 375. Clark v Esanda Ltd [1984] 3 NSWLR 1. CASES CITED: Courtney v Medtel [2003] FCA 36. King v Sexton & Green (Sales and Service) [2000] NSWCA 340. Medtel Pty Ltd v Courtney (2003) 198 ALR 630. Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323. Rogers v Parish (Scarborough) Ltd [1987] 1 QB 933. Thomas v Foreshore Marine Exhaust Systems Pty Ltd [2005] NSWCA 451. Ms Humphreys Counsel Humphreys & Feather Solicitors for plaintiff REPRESENTATION: Mr P Bruckner Counsel Morgan Lewis Attorneys for defendant Mr S Bliim of Counself for Third Party Riley, Grey - Spencer Lawyers for Third Party ORDERS: 1. In the action between the plaintiff and the first and second defendants, there will be verdicts for the defendants and judgment accordingly.; 2. In the action brought pursuant to s.75A by the first defendant/cross-claimant against the plaintiff/first cross-defendant, there will be a verdict for the cross-claimant in the sum of $10,276.69.; 3. In the action brought pursuant to s.73 by the first defendant/cross-claimant against the plaintiff/first cross-defendant and third party/second cross-defendant, there will be a verdict for the cross-defendants. Judgment accordingly.; 4. In the action brought by the cross-claimant against the third party pursuant to ss.74B-74G there will be a verdict for the third party/cross-defendant. Judgment accordingly.; 5. I reserve the question of costs. Parties to have liberty to apply on seven days' notice.