Alan Burns Used Equipment Sales Pty Ltd v Sandbell Pty Ltd [2011] NSWDC 44

District Court New South Wales

Medium Neutral Citation: Alan Burns Used Equipment Sales Pty Ltd v Sandbell Pty Ltd [2011] NSWDC 44 Hearing dates: 20, 21 September 2010, 22, 24 and 25 February 2011 Decision date: 30 May 2011 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: Verdict for the plaintiff against the defendants Amount of damages and interest to be finalised Catchwords: CONTRACT - claim for breach of contract and misleading and deceptive conduct Legislation Cited: Trade Practices Act 1974 Sale of Goods Act 1923 Category: Principal judgment Parties: Alan Burns Used Equipment Sales Pty Ltd (formerly known as Detabo Pty Limited) (Plaintiff) Sandbell Pty Ltd trading as Turner Engineering (First Defendant) Peter Turner (Second Defendant) Representation: Ms M Painter of counsel, instructed by Adams & Partners, Lawyers (Plaintiff) Mr G Lancaster, solicitor of Access Law Group (Defendants) File Number(s): 2009/334458

REASONS FOR Judgment 1In 2008 the first defendant, Sandbell Pty Ltd, sold 2 used dump trucks to the plaintiff, now known as Alan Burns Used Equipment Sales Pty Ltd, pursuant to an agreement made on or around 3 March 2008, for $195,000 each. 2The plaintiff alleges that the trucks were in such a state of disrepair that it had to spend a considerable amount of money to bring them up to the agreed condition. It claims the cost of additional necessary repairs and other losses. The issues 3The plaintiff sues for breach of the agreement and breach of s 52 of the Trade Practices Act 1974 by reason of misleading and deceptive representations made by Mr Turner, as an officer or agent of the first defendant. It alleges against Mr Turner, the second defendant, that he aided, abetted, counselled or procured the contraventions of the Act by the first defendant or, alternatively, that he made the false and misleading representations in his personal capacity. 4The breach of contract alleged is that the first defendant failed to provide the plaintiff with an accurate assessment of the condition of the trucks, and failed to provide the trucks in a reasonable standard. 5The breaches of the Trade Practices Act alleged are that Mr Turner falsely represented that the trucks could be brought to a neat, tidy and work ready condition for approximately $20,000 per truck. The true estimate of bringing the trucks to a neat, tidy and work ready was far in excess of $20,000 each. 6The plaintiff claims that the actual cost of bringing the trucks to a neat, tidy and work ready condition was $152,561.55, made up of: * Caterpillar 773B dump truck serial number 66W-04556 $77,287.12 * Caterpillar 773B dump truck serial number 63W-04557 $75,274.43 7The plaintiff also claims lost hire fees for of each truck for the period during which they were out of service and being repaired, in a total amount of $133,739.67. 8After allowing an amount of $20,000.00 for each truck, being the amount that Mr Turner represented was required to bring them up to a neat, tidy and work ready condition, the plaintiff's nett total claim was, therefore, $246,301.22, plus interest: Repairs $152,561.55 Lost hire costs $133,739.67 Total $286,301.22 Less estimate for repair work $ 40,000.00 Nett total claim $246,301.22