Buttrose J:

This action arises out of the sale of a second-hand motor car by the defendants to the plaintiff under a hire-purchase agreement. The plaintiff claims damages for breach of the agreement by the defendants alternatively damages for fraudulent misrepresentation by the defendants in inducing the plaintiff to enter into it.

The position was that the defendants admitted that they represented that the motor car was a 1958 model and that it was not a 1958 model - it was in fact a 1953 model - but they denied that they knew it was not a 1958 model and that the said representation was made fraudulently or recklessly. They maintained that the representation was based upon an entry in the registration book to that effect and made with a i bona fide belief in the truth thereof.

The first question which arises to be considered is whether the representation made by the defendants was a term of contract. The question is often expressed as being whether the words are to be interpreted as giving rise to a warranty.

The facts were that the plaintiff in October 1960, about a month after his arrival in Singapore purchased a second-hand 1956 Fiat from the defendants. He experienced considerable trouble with it and soon afterwards approached the defendants with a view to effecting an exchange. He was shown a list of second-hand cars which, however, was not produced and referred to a salesman employed by the defendants and they had a discussion. The plaintiff indicated two Humber Hawks on the list in which he was interested and it appeared, though the evidence was somewhat vague as to this, that they were shown as 1957/1958 models. The salesman pointed to one of the Humber Hawks and said that was the car he recommended. The plaintiff referred to the trouble he had experienced with the Fiat and stated that he wanted a good car this time and the salesman said that he would see to it that the plaintiff was satisfied.

The plaintiff queried the price indicating that he did not want to pay as much as he had done for the Fiat and the Humber Hawk was more expensive to which the salesman replied that it was a much better and a much newer car. The plaintiff inspected the car with the salesman and they went for a run in it. On their return the plaintiff said that before he went any further in the matter he would require to see the log book to ascertain who the previous owners were and the log book was produced for his inspection. The plaintiff agreed to buy the car and signed a formal confirmation of purchase incompletely filled in and not signed by the defendants and subsequently on 31 December 1960, executed a hire-purchase agreement in respect of the car and took delivery. In this agreement under the heading "The Goods" the car is expressly stated to be a 1958 model Humber Hawk Saloon. It was only on his attempting to resell the car some time later, as his family were returning to England, that the plaintiff discovered that it was in fact a 1953 model. He immediately went and saw the defendants and was told that it was nothing to do with them and that, while it may well be a 1953 model, as the log book said it was a 1958 model that was the end of the matter as far as the defendants were concerned.

The plaintiff said that if he had known it was a 1953 model, he would never have bought it and that he knew nothing about Humber Hawks and he believed the defendants when they told him it was a 1958 model.

Now the assumption that the car was a 1958 model was fundamental to the contract but as was pointed out by Denning LJ in Oscar Chess Ltd. v. Williams [1957] 1 All ER 325 at p. 327 that does not prove that the representation was a term of the contract.

The assumption in that case was based by both the parties on the date given in the registration book as the date of first registration. They both believed that the car was a 1948 model, whereas it was only a 1939 one. They were both mistaken. The facts in the present case are, in my opinio