Alami v Langov - [2008] NSWSC 812

CITATION: Alami v Langov & Ors [2008] NSWSC 812

HEARING DATE(S): 29.07.08; 30.07.08; 31.07.08

JUDGMENT DATE :
11 August 2008

JUDGMENT OF: Nicholas J

DECISION: Par 75

CATCHWORDS: CONTRACTS - sale of laser machine - scope of contract - whether breach of contract - whether plaintiff entitled to damages - TRADE PRACTICES - misleading conduct - whether contravention of Fair Trading Act 1987 s 42 and Trade Practices Act 1974 (Cth) s 52 - turns on facts, no question of principle

LEGISLATION CITED: Fair Trading Act 1987
Sale of Goods Act 1923
Therapeutic Goods Act 1989 (Cth)
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337
General Newspapers Pty Ltd v Australian & Overseas Telecommunications Corporation Ltd (1993) 40 FCR 98
In Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52
Karmot Auto Spares Pty Ltd v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560
Pappas v Soulac Pty Ltd (1983) 50 ALR 231

PARTIES: Linda Alami - plaintiff
Lupco Langov – first defendant
Troy Salmela – second defendant
Amazing Laser Inc – third defendant

FILE NUMBER(S): SC 20374/06

COUNSEL: B Zipser - plaintiff
V R Gray – first defendant
No appearance – second defendant
No appearance – third defendant

SOLICITORS: Advance Legal - plaintiff
Corporate & Civil Legal – first defendant
No appearance- second defendant
No appearance – third defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Nicholas J

11 August 2008

20374/06 Alami v Langov & Ors

JUDGMENT

1 His Honour: These proceedings concern the plaintiff’s claims against the first defendant, Dr Lupco Langov, the second defendant, Mr Troy Salmela, and the third defendant, Amazing Laser Inc (the company) arising out of the purchase by the plaintiff from Mr Salmela and the company of a laser machine known as a Candela Gentlelase Plus (the machine).

2 Until 2004 the plaintiff carried on business as a beautician at Bass Hill, New South Wales providing nail and beauty services and training to clients. In early 2005 she proposed to open a clinic where she would operate a laser machine for the treatment of clients. Machines of this kind are used by beauticians and some medical practitioners for the removal of body hair, and the repair of various skin conditions and ailments.

3 Dr Langov is a medical practitioner who at all material times operated a skin cancer and laser clinic at Sutherland, New South Wales. Mr Salmela was at all material times the vice-president of the company, a corporation which carried on business as a laser clinic operator under the name MD Solutions. Mr Salmela was a resident of, and the company was incorporated in, Austin, Texa in the United States of America.

4 On 7 December 2006 the Court granted leave to the plaintiff under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alami v Langov

Details

AGLC: Alami v Langov [2008] NSWSC 812
Case: [2008] NSWSC 812
Decision Date: 11 August 2008

CaseChat Overview and Summary

The case of Alami v Langov involved a dispute between the plaintiff, Alami, and the defendant, Langov, regarding the sale of a laser machine. The plaintiff alleged that the defendant had breached the terms of the contract by failing to deliver a machine that met the specified standards. The plaintiff further claimed that the defendant had engaged in misleading conduct, in contravention of the Fair Trading Act 1987 and the Trade Practices Act 1974. The matter was heard in the Supreme Court of New South Wales. The central legal issues that the court needed to address were whether there had been a breach of contract and whether the defendant had engaged in misleading conduct that contravened the relevant statutes. The court examined the terms of the contract between the parties and considered the evidence presented to determine whether the machine delivered by the defendant met the agreed specifications. The court also assessed whether the defendant's conduct was misleading or deceptive within the meaning of the statutes. The court found that the laser machine delivered by the defendant did not meet the specified standards, thus constituting a breach of contract. Furthermore, the court determined that the defendant's conduct was misleading and deceptive, as it had failed to disclose material facts that would have influenced the plaintiff's decision to enter into the contract. Consequently, the court held that the defendant was liable for both breach of contract and misleading conduct. The court awarded damages to the plaintiff for the breach of contract and ordered the defendant to pay a penalty for the contravention of the Fair Trading Act and the Trade Practices Act. The court's decision turned on the specific facts of the case, with no broader legal principles being established.

Orders