About this case:

• Citation:
  [2022] NIQB 27
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Lord Justice Horner

Background

This case related to the purchase and supply of a Plaisance Galotrax 400 Forestry Mulcher in 2016. The plaintiff, Stephen McGowan (trading as McGowan Tree Services) in Northern Ireland, was involved in forestry management and landscaping. He decided to purchase the mulcher from the defendant, Gregor McArthur (trading as McArthur Forestry Services), in Northumberland.

The mulcher was advertised by the defendant on Agriaffaires.co.uk, selling for £47,500 and described as being “used – good condition”.

The plaintiff paid a deposit of £8,000, and stated that he needed the mulcher because he had a contractual obligation for clearance work for the construction of the A6 Randalstown to Castledawson Road from July 2016 onwards. Consequently, delivery by July 2016 was crucial.

However, by July there were issues with the machine being “mechanically operative”. When it was eventually delivered, the plaintiff noted further issues with the machine, and therefore withheld payment of £15,200 until those were resolved.

Effectively, the machine was not in full working order; it was missing a power take-off (PTO) guard, and the PTO was only engaging in half revs, both of which affected the safety of the mulcher.

The defendant’s case

The defendant claimed that the plaintiff test drove the mulcher for a couple of hours in a quarry and was satisfied enough with it to proceed with a deal. Further, given the age of the machine, it was clear that its use would be limited to “more specific jobs like a very wet site requiring low ground pressure but high horsepower”.

The defendant also argued that any issues with the PTO was not his fault and should be taken up with the manufacturer. The court found this approach to be a “total abrogation of responsibility” and a complete misunderstanding of his obligations under the contract of sale.

A final issue raised was that the mulcher’s clutch was defective, and the only solution was to have a new clutch installed by the manufacturer, which cost £18,831.37.

Meanwhile the plaintiff complained that he had to hire an alternative machine which was costing him £180 per hour and he had paid an extra £6,300 in hire costs to date. Ultimately, the plaintiff issued proceedings claiming damages for breach of contract.

The defendant counterclaimed, alleging effectively that there had been no breach of contract, as the sale was on an “as seen” basis without any further warranty.

Determination

The court noted that many of these events happened over five years ago, and each party “suffered from selective memories” which often benefited their claim.

For example, the plaintiff said he knew in April 2016 that he was going to be appointed a sub-contractor to clear the land of trees and shrubs to permit the A6 to be constructed, but the sub-contract was only awarded in October 2016.

The defendant said he told the plaintiff that the machine was not fit to act as a frontline machine and was only suited to more specific jobs. However, this claim was inconsistent with the defendant’s own advertisement and an email from July 2016 where he described it as “mechanically operative” with no qualifications.

The court was therefore required to rely on evidence to obtain a true picture of events. In this vein, the court was critical of the fact that the plaintiff did not call an engineer, or an accountant, to speak to the state of the mulcher or the cost to his business.

However, on the evidence provided, the court did determine that the mulcher did not meet its description in the advertisement. The mulcher was neither in good condition nor could it be used across “varying conditions” as described.

The claim that it was advertised “sold as seen” was patently untrue. The mulcher was sold with a defective clutch, which limited its ability to carry out mulching work, rendering it useless. On this point, the court stated:

Therefore, the plaintiff was entitled to proceed with his claim for damages for breach of contract.

Damages and conclusion

In relation to damages, there was a dispute as to whether the breach of contract caused any consequential loss. The defendant denied that he had any notice that the plaintiff had won a contract to carry out clearance work for the A6.

The court accepted this claim based on the evidence. However, the defendant was aware that the plaintiff intended to use the machine on other contracts that were in the pipeline and that the plaintiff required the machine to do mulching work.

Therefore, the court found that the defendant was on notice, even if he did not know the precise nature of the contract work the mulcher would be engaged in. Unfortunately, the plaintiff failed to provide any evidence as to what his loss was in respect of those contracts.

Therefore, the court was not persuaded to award any compensation for any financial loss. The plaintiff was awarded costs of repairing and transporting the mulcher. The court awarded £26,831.37, less £10,920, producing a final sum of £15,311.37, as well as interest of £3,389.47.