Milford Astor Pty Limited v Machinery Developments Limited [2003] NSWSC 301

New South Wales Supreme Court

CITATION : Milford Astor Pty Limited v Machinery Developments Limited [2003] NSWSC 301 HEARING DATE(S) : 26 November 2002 JUDGMENT DATE : 15 April 2003 JURISDICTION: Common Law JUDGMENT OF : Mathews AJ DECISION : Verdict for the Plaintiff in the amount of $40,308. Defendant to pay 50 percent of the plaintiff's costs.

CATCHWORDS : Claim for cost of goods sold - cross-claim for breach of contract and misleading conduct under s 52 Trade Practices Act - various heads of cross-claim - claim under Trade Practices Act upheld - claim not affected by exemption clause in principal contract - inadequate evidence as to damages - plaintiff's claim largely successful LEGISLATION CITED : Trade Practices Act 1974 (Cth) Sale of Goods Act 1923 CASES CITED : Clark Equipment v Covcat (1987) 367 71 ALJ at 371 Petera Pty Ltd v EAJ Pty Ltd (1985) 7 FCR 375 at 378 PARTIES : Milford Astor Pty Limited - Plaintiff Cross/Defendant Machinery Developments Limited - Defendant Cross/Claimant FILE NUMBER(S) : SC 12647/00 COUNSEL : Mr G Sirtes - Plaintiff/Cross Defendant Mr S Burchett - Defendant/Cross Claimant SOLICITORS : The Law Partnership - Plaintiff/Cross Defendant Michell Sillar - Defendant/Criss /Claimant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MATHEWS AJ

15 April 2003

12647/99 MILFORD ASTOR PTY LIMITED -v- MACHINERY DEVELOPMENTS LIMITED

JUDGMENT 1 HER HONOUR:

Introduction 2 Milford Astor Pty Limited ("Milford Astor") entered into an agreement in December 1999 to sell twenty Bell-Mark printing machines to the defendant, Machinery Developments Limited ("MDL") at a total price of AUD239,748. The plaintiff's case is that the machines were delivered in accordance with the contract, but only $187,812.80 was paid by the defendant, leaving outstanding an amount of $51,935.20. The plaintiff's statement of claim seeks payment of this amount together with interest. 3 MDL does not dispute the essence of the agreement between the parties or the fact that the machines were delivered, although there is a strong dispute as to whether the machines, as installed, complied with the terms of the contract. The principal issue between the parties arises from MDL's cross-claim against Milford Astor. This in essence asserted that Milford Astor was in breach of express or implied conditions of the contract, and that the machines as delivered were not fit for the purpose for which they were intended. It raised claims for breach of contract as well as claims under the Sale of Goods Act 1923 and the Trade Practices Act 1974 (Cth). 4 Before turning to the facts of the matter, I should make one brief observation. The amount in issue in this case is in the order of $52,000. In the normal course of events a claim of this nature would not be brought in this Court. If it were, costs penalties would be imposed upon the plaintiff. However, in this case Milford Astor had no choice but to commence proceedings in this Court. The defendant being a New Zealand company, it is the only court with jurisdiction to deal with the matter. 5 I turn now to discuss the factual background of the matter.