Gough & Gilmour [2005] NSWSC 1155

The spreadsheet percentage availability items did not become contractual guarantees, warranties, or collateral contract terms because, viewed objectively, a reasonable person in PCE's position or an intelligent bystander would not infer from a single word and percentage in attached spreadsheets, calculated on assumptions unlikely to be fulfilled and in some respects inconsistent, that Gough & Gilmour promised absolute availability rates to one or two decimal places. Some broader FOCUS representations and terms were made or incorporated, but liability under s 52 depended on whether they were true or reasonably grounded when made; several future representations, especially as to...

Jurisdiction: Australia
Judgment Date: 18 November 2005
Procedural Posture: Contract and Trade Practices Act Cross Claim Concerning FOCUS Machinery Maintenance Contracts / Preliminary Judgment on Agreed Preliminary Issues
Outcome: Preliminary issues determined substantially in favour of Gough & Gilmour on the alleged contractual availability guarantees and collateral contracts; PCE succeeded only on limited findings that some representations lacked reasonable grounds and that there were occasional breaches of the August 1997 24 hour service...
Legal Topics: ['terms of Contract' 'warranties' 'collateral Contract' 'contractual Guarantees of Machine Availability' 'trade Practices Act S 52' 'representations as to Future Matters' 'reasonable Grounds Under S 51 A' 'implied Terms' 'exclusion and Limitation Clauses']

['contract Law' 'trade Practices' 'misleading or Deceptive Conduct'] ['terms of Contract' 'warranties' 'collateral Contract' 'contractual Guarantees of Machine Availability' 'trade Practices Act S 52' 'representations as to Future Matters' 'reasonable Grounds Under S 51 A' 'implied Terms' 'exclusion and Limitation Clauses']

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Procedural Posture

Contract and Trade Practices Act Cross Claim Concerning FOCUS Machinery Maintenance Contracts / Preliminary Judgment on Agreed Preliminary Issues

Legal Issues

1 ['Whether percentage availability figures in spreadsheets attached to the August 1997 and November 1997 FOCUS contracts became contractual warranties or guarantees of actual machine availability.' 'Whether alleged pre-contract statements became terms of the FOCUS contracts or collateral contracts.' 'Whether Gough & Gilmour made and PCE relied on representations alleged in paragraphs 9 and 10 of the cross-claim.' 'Whether any representations were misleading or deceptive under s 52 of the Trade Practices Act, including whether Gough & Gilmour had reasonable grounds for future representations under s 51A.' 'Whether Gough & Gilmour breached obligations in respect of maintenance or repairs to the D11N dozer.' "Whether PCE was liable for Gough & Gilmour's claim for waiting time under the November 1997 FOCUS contracts."]

Ratio Decidendi

Court Disposition

Preliminary issues determined substantially in favour of Gough & Gilmour on the alleged contractual availability guarantees and collateral contracts; PCE succeeded only on limited findings that some representations lacked reasonable grounds and that there were occasional breaches of the August 1997 24 hour service...

Orders

['The percentage availability items in the spreadsheets did not become terms of the August 1997 or November 1997 FOCUS contracts and were not collateral contract guarantees.' 'None of the matters in paragraph 9 of the cross-claim became terms of the August 1997 or November 1997 FOCUS contracts or collateral...