(5) there is a tension between what I have referred to in (1) and (2) on the one hand, and on the other the fact that the website indicated that the payment and delivery were to be negotiated.
56 Having regard to the matters to which I have referred, I do not accept that the parties had agreed that there would be no binding agreement until they had a concluded agreement on the time for payment of the balance, nor that because the defendant said that he wanted the balance to be paid in six weeks but was negotiable on that time, that it is not appropriate to imply a term.
Airworthiness
57 There is another issue which has arisen, which I have labelled airworthiness, and that is whether or not it was a term of the contract that the Wirraway, on delivery, would be able to be flown from Albury to South Australia and would have all necessary certificates to permit that to occur.
58 The question of whether or not the aircraft was to be capable of being flown at the time of delivery (and for which all relevant current airworthiness certificates would be held) is one which has, it was agreed, limited financial significance, both parties accepting that if the Wirraway was not able to fly, expenditure of between $8000 and $10,000 would bring it into that condition.
59 The listing on eBay described the Wirraway as one of the few flying Wirraways in Australia. The defendant's statement that the aircraft had all relevant airworthiness certificates and would be able to be flown from Albury to South Australia on delivery reinforced what had been said in the eBay listing.
60 Little was said about this aspect in submissions. The case of Ellul v Oakes (1972) 3 SASR 377 at 387 deals with the question of when statements are promissory in nature, and see also JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 at 442 in which it is made clear that the fact that without a statement to the effect made the contract would not have been entered into, was not alone sufficient to make the statement promissory. In Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; 55 ALR 417 the majority agreed with the conclusion of the trial judge (and that of the Court of Appeal) that statements made by the distributors were promissory. Gibbs CJ disagreed but did note at 61-62:
"A representation made in the course of negotiations which result in a binding agreement may be a warranty - i.e., it may have binding contractual force - in one of two ways: it may become a term of the agreement itself, or it may be a separate collateral contract, the consideration for which is the promise to enter into the main agreement. In either case the question whether the representation creates a binding contractual obligation depends on the intention of the parties. In J. J. Savage & Sons Pty. Ltd. v. Blakney , at p. 442 and Ross v. Allis-Chalmers Australia Pty. Ltd. at pp. 565, 567, it was said that a statement will constitute a collateral warranty only if it was "promissory and not merely representational", and it is equally true that a statement which is "merely representational" - i.e., which is not intended to be a binding promise - will not form part of the main contract. If the parties did not intend that there should be contractual liability in respect of the accuracy of the representation, it will not create contractual obligations. In the present case Mr. Blackman, who made his statements fraudulently, had, of course, no intention that they should amount to contractual undertakings, but he could not rely on his secret thoughts to escape liability, if his representations were reasonably considered by the persons to whom they were made as intended to be contractual promises, and if those persons intended to accept them as such. The intention of the parties is to be ascertained objectively; it "can only be deduced from the totality of the evidence": Heilbut, Symons & Co. v. Buckleton , at p. 51. In other words, as Lord Denning said in Oscar Chess Ltd. v. Williams , at p. 328:
"The question whether a warranty was intended depends on the conduct of the parties, on their words and behaviour, rather than on their thoughts. If an intelligent bystander would reasonably infer that a warranty was intended, that will suffice."