Tre Cavalli Pty Limited v The Berry Rural Co Operative Society Limited

[2013] NSWCA 235

NSW Court of Appeal

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Interrogate

Catchwords

1. Sale of Goods
2. › Implied conditions and warranties
3. › Merchantable quality
4. › Whether goods contaminated at time of sale
5. › Onus of proof
6. › Circumstantial evidence giving rise to equally probable inferences
7. › Sale of Goods Act 1923 (NSW), s 19(2)
1. Sale of Goods
2. › Implied conditions and warranties
3. › Fitness for purpose
4. › Whether buyer made known particular purpose
5. › Whether proviso applies where goods sold under trade name
6. › Sale of Goods Act 1923 (NSW), s 19(1)
1. Evidence
2. › Circumstantial evidence
3. › Onus of proof
4. › Whether circumstances give rise to reasonable and definitive inference or merely conflicting inferences of equal probability
1. Practice and Procedure
2. › Judgments and orders
3. › Additional reasons after judgment
4. › Whether supplementary reasons given after entry of verdict may be taken into account on appeal
5. › Whether additional reasons involve matters of substance

Quick Take

Where circumstantial evidence of a defect in goods gives rise to two equally probable inferences — that the defect existed at the time of sale or arose after sale — the buyer has not discharged the onus of proving unmerchantable quality. The proviso to s 19(1) of the Sale of Goods Act 1923 (NSW) applies where a buyer selects goods by trade name from a retailer's stock without any discussion as to fitness for purpose. A judge may not supplement reasons for judgment with matters of substance after orders have been pronounced.