Wenter, M.J. v A.F.I. Pty Ltd & anor [1985] FCA 367

Wenter, M.J. v A.F.I. Pty Ltd & anor [1985] FCA 367

The vehicle was not of merchantable quality and had been misrepresented at least recklessly as to its model year; both statutory and common law bases for liability were established against the first respondent. Section 5 of the Hire Purchase Act 1953 (Qld) extends this liability to the second respondent (owner) due to the hire-purchase arrangement. Neither exclusion under s.71(1) applied.

Parties
Applicant: MICHAEL JOSEPH WENTER; First Respondent: A.F.I. PTY LTD; Second Respondent: CUSTOM CREDIT CORPORATION LIMITED; Cross Claimant: CUSTOM CREDIT CORPORATION LIMITED; First Cross Respondent: MICHAEL JOSEPH WENTER; Second Cross Respondent: A.F.I. PTY LTD
Jurisdiction
Australia
Judgment Date
26 July 1985
Procedural Posture
Civil / Judgment
Outcome
Judgment for applicant against both respondents; judgment for second respondent against applicant on cross-claim; declaration of indemnity for second respondent against first respondent; orders as to costs.
Legal Topics
Trade Practices Act, Merchantable Quality, Misrepresentation, Negligence, Hire Purchase
Consumer Law Contract Law Tort Law Trade Practices Act Merchantable Quality Misrepresentation Negligence Hire Purchase

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Parties

MICHAEL JOSEPH WENTER

Applicant

A.F.I. PTY LTD

First Respondent

CUSTOM CREDIT CORPORATION LIMITED

Second Respondent

CUSTOM CREDIT CORPORATION LIMITED

Cross Claimant

MICHAEL JOSEPH WENTER

First Cross Respondent

A.F.I. PTY LTD

Second Cross Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Was the vehicle misrepresented as a 1975 model when it was a 1971 model?
  2. 2 Was the vehicle not of merchantable quality under section 71 of the Trade Practices Act?
  3. 3 Do the exclusionary conditions in s.71(1) apply?

Ratio Decidendi

The vehicle was not of merchantable quality and had been misrepresented at least recklessly as to its model year; both statutory and common law bases for liability were established against the first respondent. Section 5 of the Hire Purchase Act 1953 (Qld) extends this liability to the second respondent (owner) due to the hire-purchase arrangement. Neither exclusion under s.71(1) applied.

Court Disposition

Judgment for applicant against both respondents; judgment for second respondent against applicant on cross-claim; declaration of indemnity for second respondent against first respondent; orders as to costs.

Orders

  • Judgment in favour of the applicant against the first respondent in the sum of $2,594.80.
  • Judgment in favour of the applicant against the second respondent in the sum of $3,594.80.