Boattime Pty Ltd (ACN 056 554 593) v Westrac Pty Ltd (ACN 009 342 572) [2013] NSWDC 165

District Court New South Wales

Medium Neutral Citation: Boattime Pty Ltd (ACN 056 554 593) v Westrac Pty Ltd (ACN 009 342 572) [2013] NSWDC 165 Hearing dates: 21 May 2013 - 23 May 2013 Decision date: 06 September 2013 Jurisdiction: Civil Before: Mahony SC DCJ Decision: Verdict for the defendant; for orders see [81] Catchwords: Breach of contract; misleading and deceptive conduct; unconscionable conduct; misrepresentation. Legislation Cited: Australian Consumer Law Contracts Review Act 1980 Trade Practices Act 1974 (Cth) Fair Trading Act 1987 Cases Cited: Wright Prospecting Pty Limited v Hammersley Iron Pty Limited [2013] NSWSC 536 Western Export Services Inc v Jireh International Pty Limited (2011) 86 ALJR 1 Codelfa Construction Pty Limited v State Rail Authority (NSW) (1982) 149 CLR 337 Watson v Foxman (1995) 49 NSWLR 315 Helton v Allen (1940) 63 CLR 691 Carrier v Georges [2013] NSWSC 401 Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Boattime Pty Ltd - Plaintiff Westrac Pty Ltd - Defendant Representation: J Ryan - Plaintiff D J Price - Defendant Walsh & Blair Lawyers Curwoods Lawyers File Number(s): 12/181894 Publication restriction: Nil

Judgment

The Plaintiff's Claim 1By an Amended Statement of Claim, the plaintiff claims the sum of $76,583.13 for repairs to a truck purchased by it from the defendant on or about 2 September 2011. The truck was a second-hand caterpillar 730 articulated dump truck, and was a year 2001 model. It was therefore 10 years old at the time of the purchase. 2Mr Brian Burgess, a director of the plaintiff company, attended the defendant's premises in Wagga Wagga in August 2011. He spoke to a salesman, Mr Robert Mackay, and told him that the plaintiff needed a fairly late model dump truck in good condition. Mr Mackay told him that he had a truck coming in which was currently on the wharf. Some weeks later, Mr Burgess took possession of the truck on a trial basis. During the trial period Mr Burgess alleged there were a number of problems with the truck. A warning light for the transmission, situated on the dash, kept coming on and the defendant sent mechanics to the plaintiff's premises to fix the problem. 3On 2 September 2011 Mr Burgess, on behalf of the plaintiff, signed a contract for sale of the truck. The purchase price was $130,000 plus GST. The contract for sale had attached to it terms and conditions, one of which was in the following terms: "12 No Used Equipment Warranty For the avoidance of any doubt, all used equipment is sold by the company to the customer on an "as is where is" basis. This means that the company makes no representations about the state of the equipment it sells to the customer. The company has not warranted that it would be free from defects and material and workmanship. This is normal industry practice and the customer specifically acknowledges acceptance of this term at the time of purchasing the used equipment." 4There was no statutory warranty applicable to the vehicle. 5The purchase price was not paid by the plaintiff on the date the contract was signed. The plaintiff continued to use the vehicle and various problems with the vehicle were fixed at the defendant's expense. 6On or about 28 September 2011 a telephone conversation took place between Mr Burgess and the State Used Equipment Manager of the defendant, Mr Stephen Russell. The content of that phone conversation is the central factual dispute in the case. The plaintiff claims that during that conversation Mr Burgess informed Mr Russell that there were continuing problems with the transmission, and Mr Russell said to him: "I will fix the truck to your satisfaction. I will make sure that everything is right with the machine." 7This is the representation relied on by the plaintiff as the basis on which the terms of the contract were varied, and as the basis of its statutory claims. The following day the plaintiff paid the purchase price in full. 8Some time after 25 January 2012 the defendant became aware that there was a problem with the transmission in the truck. Repairs were carried out and those repairs were paid for by the plaintiff. 9Later, there were further problems with the transmission. On 5 April 2012 a quotation was prepared by the defendant for the repairs required to be made to the truck. It came to $79,693.45. 10A conversation took place at the defendant's premises at that time between Mr Burgess and the Manager, Mr Peter Putland, in which Mr Burgess advised that the defendant would have to pay for the repair in that it was supposed to fix the problem when he purchased the truck. He stated that it was the same problem. After the repairs were carried out, Mr Burgess was informed by Mr Putland that he would have to pay for the repairs or the truck would not be released to him, to which Mr Burgess responded that Mr Russell had told him that if he paid for the machine that the defendant would fix all the problems with it. Subsequently, Mr Burgess paid for the repair and the truck has since operated in good working order. 11The plaintiff's claim is brought on the following bases: (1)As damages for breach of contract. (2)As damages pursuant to s 236 of the Australian Consumer Law ("ACL") on the basis that the defendant's conduct, namely, the representations made by Mr Russell prior to the purchase price being paid, was conduct that was misleading or deceptive or likely to mislead or deceive and/or was conduct that was unconscionable in breach of ss 18 and 22 of the ACL; and (3)In breach of ss 54 and 55 of the ACL the truck was not fit for the purpose it was supplied, nor was it of acceptable quality. (4)That the defendant misrepresented to the plaintiff that it would fix the subject vehicle to its satisfaction and make sure that everything was right with the machine to induce the plaintiff to purchase the truck.