Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Hubner v Bandamora Gallery [2017] NSWCATCD 19 Hearing dates: 6 December 2016 & 23 January 2017 (written submissions) Decision date: 20 March 2017 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: 1. The application is dismissed.
Catchwords: Limitation periods; agency; disclosed or un-named principal; expert evidence; misleading or deceptive representations Legislation Cited: Fair Trading Act 1987
Limitation Act 1969Cases Cited: McBride v Christie's Australia Pty ltd [2014]NSWSC 1729
Marsh & McLennan Pty Ltd v Stanyers Transport Pty Ltd [1994] 2 VR 232Texts Cited: Professor Reynolds "Practical Problems of the Undisclosed Principal Doctrine" (1983) Current Legal Problems 119 Category: Principal judgment Parties: Michael Hubner and Alison Hubner (Applicants)
Bandamora Investments Pty Ltd t/as Bandamora Gallery (Respondent)Representation: Applicants in person
Mr Bell, solicitor, for the respondent
File Number(s): GEN 16/44026 Publication restriction: Nil
REASONS FOR DECISION
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This is an application for an order for the refund of the purchase price paid for a painting purchased in 2007, which the applicant alleges is a forgery.
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The matter was listed for hearing before me on 06.12.16. Mr Hubner appeared on behalf of both applicants. A principal of the respondent company Mr Tozer did not appear. Mr Bell lawyer sent a detailed letter to the Tribunal attaching a medical certificate and a schedule of Mr Tozer’s pharmaceutical regime. Mr Bell sought leave to present the case for the respondent on the grounds Mr Tozer was elderly and unwell and was certified by his medical practitioner as being unable to drive from Tumut to Sydney due to suffering from visual disturbance and dizziness. Mr Hubner did not object and I granted leave for Mr Bell to appear on behalf of the respondent.
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Mr Tozer telephoned the Tribunal and I granted leave for him to give sworn evidence over the phone. At the conclusion of the evidence orders were made for both parties to file written submissions.
THE CLAIM
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On the 31.01.07 the applicants purchased a painting called “Work Starts” by D’Arcy Doyle from the respondent for $23,000. In or about July 2016 the applicants discovered they painting is a forgery and is worth next to nothing.
APPLICANT’S SUBMISSIONS
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In January 2007 the applicant saw a D’Arcy Doyle painting called “Work Starts” advertised on the internet and he attended the respondent’s gallery in Gundagai. He knew the gallery as ‘they had been around for a long time.”
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He drove to Gundagai and inspected the painting. He spoke with Brian Tozer at the gallery and said to him words to the effect:
“Are you comfortable with the provenance of the painting?”
To which Mr Tozer replied:
“Yes.”
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He stayed overnight, spoke with his wife about the painting. An offer was made and an agreement was reached as to the purchase price the following day.
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The painting was delivered to him in the basement car park of a city building at which time he paid the $23,000 in cash. For reasons which were…
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- Case
- [2017] NSWCATCD 19
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the applicability of limitation periods in relation to the plaintiff's claims, the nature of the relationship between the gallery and the principal, and the admissibility of expert evidence in establishing the alleged misleading or deceptive conduct. The court had to determine whether the limitation period began when the contract was made or when the alleged misleading or deceptive conduct occurred. Additionally, the court needed to establish if the gallery was acting as an agent for an undisclosed principal and whether this affected the running of the limitation periods. The admissibility of expert evidence was also a key issue, given its importance in assessing the authenticity and condition of the painting.
The court held that the limitation periods had expired for the claims made by the plaintiff. It found that the limitation period began to run when the contract was formed, and not when the alleged misleading or deceptive conduct occurred. The court rejected the plaintiff's argument that the gallery was acting as an agent for an undisclosed principal, determining that the gallery was the true seller of the painting. Consequently, the plaintiff's claims for breach of contract and misleading or deceptive conduct were dismissed. The court also ruled that the expert evidence provided by the plaintiff was not sufficient to establish the claims, as it did not meet the necessary standards of reliability and relevance.
The application was dismissed, and the plaintiff's claims were rejected. The court emphasised that the limitation periods had indeed expired, and the expert evidence provided was insufficient to support the plaintiff's case. The court's decision underscored the importance of understanding the commencement of limitation periods and the necessity for reliable expert evidence in cases involving alleged misrepresentations.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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