Barton v Bridgeman - [2020] QDC 16

DISTRICT COURT OF QUEENSLAND

CITATION:

Barton v Bridgeman & Anor [2020] QDC 16

PARTIES:

ANITA BARTON
(Plaintiff)

v

DONALD BRIDGEMAN
(First defendant)

and

SHARON BRIDGEMAN
(Second defendant)

FILE NO/S:

3144/2016

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

5 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

14 and 15 February 2019

JUDGE:

Sheridan DCJ

ORDER:

1.     Judgment be entered against the defendants in the sum of $39,860.44.

2.     Declare that the property in Dante revested in the defendants as at 16 May 2016.

3.     Within 28 days from the making of these orders, the defendants collect Dante at a time and place to be agreed between the parties, or failing agreement at a time between the hours of 8.00am and 4.00pm on a week day as nominated by the plaintiff from the location as notified by the plaintiff.

4.     Liberty to apply in respect of the working out of paragraph 3 of these orders.

If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 13 March 2020.5.

If the parties cannot reach agreement as to costs:6.

        (a)     the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday 16 March 2020;

       (b)     the defendants file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday, 23 March 2020;

        (c)     the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 25 March 2020.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where defendants supplied a horse represented to be a gelding – where horse found not to be a gelding – whether representation was a breach of statutory guarantees in Part 3-2 Australian Consumer Law (ACL) – whether any breach was a major failure under ACL

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES –where plaintiff notified defendants of rejection of horse – where horse injured before notification – whether injury meant goods were “damaged after being delivered” – whether plaintiff entitled to reject goods – whether any damage to goods related to state or condition at time of supply – whether property in goods revested in defendants – whether plaintiff’s failure to return goods resulted in loss of plaintiff’s entitlement to reject

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – where plaintiff claimed for loss and damage suffered following the purchase of a horse – where plaintiff sought refund of purchase price – where defendants refused to refund purchase price – where plaintiff sought compensation orders – whether plaintiff has a right of action for purchase price – whether compensation orders should be made – whether plaintiff failed to mitigate loss or damage

TRADE…

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.

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Details

Case: [2020] QDC 16
Decision Date: 5 March 2020

CaseChat Overview and Summary

Barton commenced proceedings against Bridgeman in the Federal Circuit Court alleging that Bridgeman had breached the Australian Consumer Law (ACL) by supplying a horse represented to be a gelding but which was in fact not a gelding. Barton claimed that this was a breach of the statutory guarantee in section 60 of the ACL that goods will be of acceptable quality. Barton further claimed that the horse was not fit for purpose and that the representation regarding the horse being a gelding constituted misleading or deceptive conduct in breach of section 18 of the ACL. Barton sought a refund of the purchase price, compensation orders and damages. Bridgeman denied the allegations and counterclaimed for the return of the horse, asserting that the horse had been damaged after delivery and that Barton had failed to mitigate his loss. The court needed to determine whether the representation that the horse was a gelding was misleading or deceptive conduct, whether it constituted a breach of the guarantee of acceptable quality, and whether any breach amounted to a major failure. The court also had to decide whether the horse was damaged after delivery, whether property in the horse had reverted to the defendants, and whether Barton was entitled to reject the horse and recover the purchase price. Finally, the court needed to determine whether Barton was entitled to compensation orders and damages.

The court found that the representation that the horse was a gelding was misleading or deceptive conduct and a breach of the guarantee of acceptable quality. The court held that the representation was a significant feature of the transaction and that the horse was not fit for the purpose of being a gelding. The court further found that the breach was a major failure. Regarding the horse being damaged after delivery, the court held that the horse was injured before Barton had notified Bridgeman of the rejection. However, the court found that the injury did not relate to the state or condition of the horse at the time of supply and that property in the horse had not reverted to Bridgeman. The court held that Barton's failure to return the horse did not result in the loss of his entitlement to reject. The court found that Barton was entitled to reject the horse and recover the purchase price. The court further held that Barton was entitled to compensation orders for the loss and damage suffered and awarded Barton $39,860.44. The court ordered that the property in the horse revested in Bridgeman and that Bridgeman collect the horse within 28 days.

Orders

Orders of the court

1. Judgment be entered against the defendants in the sum of $39,860.44.

2. Declare that the property in Dante revested in the defendants as at 16 May 2016.

3. Within 28 days from the making of these orders, the defendants collect Dante at a time and place to be agreed between the parties, or failing agreement at a time between the hours of 8.00am and 4.00pm on a week day as nominated by the plaintiff from the location as notified by the plaintiff.

4. Liberty to apply in respect of the working out of paragraph 3 of these orders.

If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 13 March 2020.5.

If the parties cannot reach agreement as to costs:6.

(a) the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday 16 March 2020;

(b) the defendants file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday, 23 March 2020;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barton v Bridgeman & Anor [2020] QDC 16
PARTIES:	ANITA BARTON (Plaintiff) v DONALD BRIDGEMAN (First defendant) and SHARON BRIDGEMAN (Second defendant)
FILE NO/S:	3144/2016
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	5 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	14 and 15 February 2019
JUDGE:	Sheridan DCJ
ORDER:	1. Judgment be entered against the defendants in the sum of $39,860.44. 2. Declare that the property in Dante revested in the defendants as at 16 May 2016. 3. Within 28 days from the making of these orders, the defendants collect Dante at a time and place to be agreed between the parties, or failing agreement at a time between the hours of 8.00am and 4.00pm on a week day as nominated by the plaintiff from the location as notified by the plaintiff. 4. Liberty to apply in respect of the working out of paragraph 3 of these orders. If the parties are able to reach agreement as to costs, a consent order signed by the parties be filed by 4:00pm, Friday, 13 March 2020.5. If the parties cannot reach agreement as to costs:6. (a) the plaintiff file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday 16 March 2020; (b) the defendants file submissions, of no more than 4 pages in length, excluding any attachments by 4:00pm, Monday, 23 March 2020; (c) the plaintiff file any submissions in reply, of no more than 2 pages in length, by 4:00pm, Wednesday, 25 March 2020.
CATCHWORDS:	TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where defendants supplied a horse represented to be a gelding – where horse found not to be a gelding – whether representation was a breach of statutory guarantees in Part 3-2 Australian Consumer Law (ACL) – whether any breach was a major failure under ACL TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES –where plaintiff notified defendants of rejection of horse – where horse injured before notification – whether injury meant goods were “damaged after being delivered” – whether plaintiff entitled to reject goods – whether any damage to goods related to state or condition at time of supply – whether property in goods revested in defendants – whether plaintiff’s failure to return goods resulted in loss of plaintiff’s entitlement to reject TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – ENFORCEMENT AND REMEDIES – ACTIONS FOR DAMAGES – where plaintiff claimed for loss and damage suffered following the purchase of a horse – where plaintiff sought refund of purchase price – where defendants refused to refund purchase price – where plaintiff sought compensation orders – whether plaintiff has a right of action for purchase price – whether compensation orders should be made – whether plaintiff failed to mitigate loss or damage TRADE…