JUDGMENTBY: GUNN CHIT TUAN J, SALLEH ABAS FJ

GUNN CHIT TUAN J Alan McKnight (the plaintiff) sued Tan Chong & Sons Motor Company (Sendirian) Berhad (the defendant) for damages for breach of an agreement under which the defendant sold him a Datsun 260C automatic station wagon (the car). The plaintiffs claim was that the defendant had expressly warranted by his representative that the car would comply with and meet all requirements of the Australian Design Rules (ADR) or at least that the representations did amount to an implied warranty that the car complied with the ADR.

The plaintiff told the court that as an Australian serviceman in this country he was entitled to purchase a car duty free in Malaysia and to take it back to Australia when his tour of duty ended. He was also entitled to take the car back without paying any duty in Australia. The plaintiff, whom the court believed and whose evidence was to a large extent supported by his witness, another Australian serviceman called Lieut. Francis Drake (P.W.2), said that he spoke to one Mr. Sze (D.W.1) in his house at the Royal Australian Air Force base at Butterworth some time during the first week of 1978. He told Mr. Sze that he wanted a car which must conform with the ADR because he intended to take it back to Australia. D.W.1 claimed that he could sell him such a car which he would have to import from Japan. At the second meeting in his house on January 6, 1978, D.W.1 told him in the presence of P.W.2 and his wife that he had cabled Japan for delivery at Singapore a white Datsun 260C which complied with the ADR. D.W.1 also told him that he was waiting for a reply from Japan and there was then a discussion during that meeting about the futility of bringing back a car to Australia from Malaysia which did not conform with the ADR. About three days later, D.W.1 came to his house and again in the presence of P.W.2 and his wife produced a document from his brief case and read it to him that Nissan Motors Ltd. of Japan was taking a car from their Australian assembly line and shipping it out to Singapore. D.W.1 also apologised for not being able to show him a model of the car as they only imported them on special order but he then went to the house of one of his neighbours, a Mr. Christie, and brought his car, which was similar to the one he wanted to buy, to show him. That Mr. Christie, another Australian serviceman, was also not able to take his car back to Australia. When they met again two nights later, the plaintiff signed some customs exemption forms (pages 13 & 14 of agreed bundle "B"). D.W.1 then told him that the car he was buying would not have a compliance plate to show that the vehicle complied with certain ADR. Before a car could be registered in Australia, it must have either a compliance plate or a letter of guarantee and D.W.1 showed him such a letter (page 1 of agreed bundle "B") which was given by the defendant to another Australian serviceman called Iddon and promised that he would give him such a letter when he took delivery of the car. He was given a letter (page 4 of agreed bundle "B") some time in May 1978 after delivery of the car in which the words used did not amount to a guarantee that the car conformed with the ADR. He complained to and argued with Mr. Sze who then promised that he would get him a letter of guarantee and also modify the car free of charge. He never got that letter of guarantee although he made several trips to Tan Chong & Sons. Eventually he had to place this matter in the hands of the Legal officer of the R.A.A.F. base.

The defendants principal witness was Mr. Bobby Sze (D.W.1). He told the court that he went to the plaintiffs house on January 5, 1978 after receiving a telephone call from him. He told the plaintiff that he could not sell him a 260 saloon but could only sell him a 260C station wagon. He also asked him whether he wanted a duty-free car because he knew from experience that most Australians bought their cars duty-fre