|An Australian producer of swimming pools bought from another Australian company fibreglass “gun rovings”, which were said to be faulty. The Australian company (hereinafter: “the buyer”) sought to pass on the claim of non-conformity to its supplier, a Spanish manufacturer (hereinafter: “the seller”). The buyer applied to amend its statement of claim against the seller. It sought, inter alia, to introduce a claim for breached of implied obligations pursuant to Australia’s Sales of Goods (Vienna Convention) Act and Art. 35 CISG, namely an implied obligation to supply goods fit for the purpose and of merchantable quality, and an implied obligation that the product was packaged in a manner adequate to preserve and protect it.
At first instance, the court found that the reference in the original notice that the rovings were contaminated was sufficient to allow any claim relying on breaches of an obligation to supply goods for purpose and of merchantable quality, such as the ones based on Art. 35 CISG, and therefore the proposed amendments arose out of the same facts as the original claim. On appeal the Court agreed with this point.