Helicopter Sales Pty Ltd v Rotor-Work Pty Ltd
132 CLR 14 ALR 77
(Judgment by: BARWICK CJ)
Between: HELICOPTER SALES PTY LTD
And: ROTOR-WORK PTY LTD
Judges:
Barwick CJMenzies J
Stephen J
Mason J
Jacobs J
Subject References:
Contract
Implied warranty
Repair
Whether warranties excluded
Practice and procedure
Third party
Leave to defend
Legislative References:
Rules of the Supreme Court (Qld) - O 17, r 4
Judgment date: 17 September 1974
ADELAIDE
Judgment by:
BARWICK CJ
I have had the advantage in this appeal of reading the reasons for judgment prepared by my brothers Menzies and Stephen. I agree with them that the circumstances of the case excluded the implication of a warranty of quality of the bolt the fracture of which due to latent defect caused the damage for which the first respondent sued. I agree with the reasons which my brothers offer for that conclusion and do not desire to add anything thereto on my own behalf.
I also agree that the appellant's appeal against the decision in favour of the plaintiff in the action against the defendant, the now second respondent R.W. Engineering Pty Ltd , should be treated as competent.
I would wish to add on my own behalf that I do not share the doubts expressed by my brother Stephen as to that competence. It seems to me that a third party who is given leave to defend a plaintiff's action, and who does so, is bound by the result of the issues which that third party contests. That it seems to me is so, not only on principle but having regard to the case law on O. 16, r. 4 of the Supreme Court Rules (Eng.), see White Book, 1973 vol. 1, p. 229. In my opinion, the function of par. 4 of that rule, and of like words in O. 17, r. 4 (4) of the Rules of the Supreme Court (Q.), is to enable the court to limit the extent to which such a third party may be so bound. In my opinion, the result of the third party contesting issues in the action does not depend on the making of an order determining the extent to which the third party should be bound but upon the making of an order giving the third party leave to defend the plaintiff's action. Further, where a third party does contest that action without leave to defend having been given, it may well be proper to deal with the case as if an order giving leave had been made.
I would allow each of the appeals brought by the appellant third party.