Angela Margarete Preda trading as Parramatta Diagnostic Imaging v Australian Imaging & Ultrasound Distributors Pty Limited [2007] NSWSC 155

New South Wales Supreme Court

CITATION : Angela Margarete Preda trading as Parramatta Diagnostic Imaging v Australian Imaging & Ultrasound Distributors Pty Limited [2007] NSWSC 155

HEARING DATE(S) : 26 & 27/02/07

JUDGMENT DATE : 27 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 27 February 2007

DECISION : See paragraphs 62-64 and 70 of judgment.

CATCHWORDS : CONTRACTS – Rescission – Rescission for innocent misrepresentation – No question of principle.

LEGISLATION CITED : Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (NSW)

Watson v Foxman (1995) 49 NSWLR 315 CASES CITED : Gould v Vaggelas [1983] 157 CLR 215 Given v CV Holland (Holdings) Pty Ltd (1977) 29 FLR 212; 15 ALR 439 Thompson v J T Fossey Pty Ltd (No 1) (1978) 20 ALR 496

Angela Margarete Preda trading as Parramatta Diagnostic Imaging PARTIES : v Australian Imaging & Ultrasound Distributors Pty Limited

FILE NUMBER(S) : SC 3331/05

COUNSEL : Plaintiff: B De Buse Defendant: J Dupree

SOLICITORS : Plaintiff: Turks Legal Defendant: Russo & Partners

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WHITE J

Tuesday, 27 February 2007

3331/05 Angela Margarete Preda trading as Parramatta Diagnostic Imaging v Australian Imaging & Ultrasound Distributors Pty Limited

JUDGMENT 1 HIS HONOUR: The plaintiff is a radiologist. Her husband, Dr Oleg Preda, manages her practice. In these reasons when I refer to "Dr Preda" I will be referring to the plaintiff's husband. 2 On 18 November 2004, Dr Preda entered into a contract on the plaintiff's behalf to buy a dental x-ray machine from the defendant. The price of the machine was $44,600. The defendant is suing for the price. The plaintiff says that the contract has been rescinded for an innocent misrepresentation as to the quality of the goods, or that the contract is liable to be declared void pursuant to s 87 of the Trade Practices Act 1974 (Cth) or s 72 of the Fair Trading Act 1987 (NSW). 3 The plaintiff also claims that the defendant breached a condition as to fitness of the goods for a particular purpose. However, she makes no claim for damages for loss of bargain. Counsel for the plaintiff correctly acknowledged that if she failed in her claim based on alleged misrepresentation, she could not succeed in her claim for breach of contract. This claim can therefore be put aside. 4 The key issues are whether a pre-contractual representation was made by the managing director of the defendant, Mr Hatfield, that the films the machine produced would match films produced by a Siemens x-ray machine which the plaintiff also used. 5 Mr Hatfield admits that he was asked whether the machine would provide the same quality images as the Siemens machine and that he said: " Yes, I believe that our machine will produce images of a similar quality. "