The applicant sought orders for a refund and compensation for financial losses in respect of an Automatic Cone Truck Vehicle (‘ACT vehicle’) purchased from the respondent for $586,080.
The applicant relied on two grounds. First, that the respondent breached an express contractual warranty of acceptable quality, as the ACT vehicle was not fit for purpose, and that this failure amounted to a ‘major failure’. Second, that the respondent engaged in misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (‘ACL’), causing loss.
Hespe J held that there was a major failure to comply with the guarantee of acceptable quality in the supply of the ACT vehicle to the applicant. The ACT vehicle was not of acceptable quality because a reasonable consumer fully acquainted with its state and condition would not regard it as acceptably safe. Her Honour further held that, because no remedy had been identified for that major failure, the applicant was entitled to a refund of the ACT vehicle’s purchase price and damages for the consequential storage costs incurred.
However, Hespe J was not satisfied that the respondent had engaged in misleading or deceptive conduct, or that the applicant suffered loss as a result. The Court accordingly declined to order that the contract be void ab initio, or to order rescission of the Sale Agreement, whether in equity for innocent misrepresentation or under s 243 of the ACL for misleading or deceptive conduct.
Rob Anderson KC with M Wilkinson represented the respondent, instructed by HopgoodGanim Lawyers.
The judgment can be read by clicking here
