Case study: David Jones Ltd v Willis (1934) 52 CLR pages 110 till 133.
This case has created controversy among the Courts and such justices as Rich, Starke and Dixon. They all have different but similar decisions, relating to The Sales of Goods Act 1923(Cth).
This case deals with the defendant David Jones Ltd versus Willis the plaintiff, on the appeal from the supreme court of New South Wales. The case is related to The Sales of Goods Act 1923(Cth).
In the case the plaintiff purchased a pair of shoes from the defendant David Jones, a retail distributor of footwear not manufactured by it. On the third occasion of wearing the shoes the heel came off while the plaintiff was walking down the stairs. She fell over and suffered injuries. She sued for damages. The court held that there was a breach of the conditions of merchantable quality and fitness for purpose.
The judge granted a new trial limited to question of damages.
The appeal by the defendant was dismissed by the Full Court of the Supreme Court. Special leave to appeal from the judgment of the Full Court was granted to the defendant by the High Court on question whether there was evidence of implied condition or warranty within the meaning of sec 19 (1) or (2) of the sales of Goods Act 1923.The appeal then came on for hearing.
The Sales of Goods Act 1923 (Cth)
,XCodifies the common law, with some modifications.
,XIn this situation the contact was for a sale of goods. As we can assume that the pair of shoes purchased from the retailer David Jones cost greater than $20 and the plaintiff had evidence in writing such as a receipt.
,XIt is a Sales of goods if the test is whether the primary objective of the contract is to transfer ownership of goods in this case that was exactly the situation.
Contract- Section 6 defines a contract for the sale of goods as, A contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for money consideration called the price. (Carvan, Miles C, Dowler W, 2003, 423). The defendant David Jones transferred a pair of shoes (goods), with the plaintiff for a certain price. As there was an exchange of property with money The Sales of Goods Act applies.
The pair of shoes the plaintiff purchased is the Goods, as they are tangible movable property.
The goods were classified as ascertained or specific goods, as the plaintiff choose the shoes at the time of the contract. As the sale was a consumer sale, the parties cannot exclude or restrict the operation of section 18; correspondence with description; 19 merchantable quality and fitness for purpose and 20 correspondence with sample.
Under The Sales of Goods Act the following warranties and conditions apply to the case:
,XAn implied condition of correspondence with description. (Legislation, N.S.W, section 18)
A sale by description is an implied condition that the goods must correspond with their description.
The goods are of a description which it is in the course of the sellers business to supply, whether he is the manufacturer or not. Even where goods are sold by brand name, or where the buyer is buying things on display, there can be a sale by description. The goods are in the course of the sellers business to sell as David Jones has a shoe department, with trained staff to assist their customers in purchasing shoes. Even though they are not the manufacture of the shoes, the legislation still applies. Its is not known if the shoes were of brand name, however David Jones is known to sell shoes of expensive known brand names, and if the sales representative picked the shoes from the display shelve, it would have been classified as a sales by description.
However according to Justice Rich, it is not a sale by description as the term the plaintiff used walking shoes is too wide and general.
Justice Starke mentions it is a question for the jury to find evidence if it was a sales by description. On the other hand Justice Dixon, mentions the shoes bought were sales by description and Dixon believes that the jury was right to .