By Design Group Pty Ltd v Blackpool Rock Co Pty Ltd

[2008] WASCA 138

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Sale of goods
3. › Implied terms
4. › Fitness for purpose
5. › Whether implied warranty excluded by express terms contemplating ongoing development of prototype machine
6. › Sale of Goods Act 1895 (WA), s 14(i)
1. Contract
2. › Sale of goods
3. › Implied terms
4. › Fitness for purpose
5. › Breach
6. › Whether use of yachting rope as support mechanism rendered machine unfit for purpose
1. Evidence
2. › Failure to call witness
3. › Jones v Dunkel principle
4. › Whether failure to call machine operator entitled court to draw adverse inference
5. › Whether principle can fill evidentiary gap
1. Contract
2. › Damages
3. › Causation
4. › Material cause
5. › Whether breach of warranty remained material cause of loss where machine operated unattended
6. › Whether unattended operation constituted intervening act

Quick Take

An implied warranty of fitness for purpose under s 14(i) of the Sale of Goods Act 1895 (WA) is not excluded merely because the contract contemplates ongoing development or improvement of a prototype product, provided the product is required to be fit for its purpose at the time of supply. The Jones v Dunkel principle cannot be used to fill an evidentiary gap where there is no evidence at all supporting the proposition for which the absent witness's testimony is said to be relevant. A breach of warranty complete at the time of supply remains a material cause of loss even where the plaintiff's conduct (operating the machine unattended) may also have contributed to the damage.