CITATION: Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2010] NSWSC 853 HEARING DATE(S): 30 July 2010
JUDGMENT DATE :
6 August 2010JUDGMENT OF: Hoeben J DECISION: Plaintiff’s summons dismissed.
Plaintiff to pay the defendant’s costs.
Leave granted to the parties to approach the Court within 14 days if they wish to make fuller submissions as to costs.CATCHWORDS: Appeal from General Division of Local Court - appeal point not taken in court below - whether defendant would have conducted case differently - whether court should exercise discretion to allow point to be taken on appeal - SALE OF GOODS - section 54 Sale of Goods Act 1923 (NSW) - whether section 54(1) remedies are alternatives - consequences of diminution of purchase price not being raised in defence - APPEAL - whether Magistrate provided adequate reasons for decision - findings as to credit - advantageous position of trial judge. LEGISLATION CITED: Local Court Act 2007
Sale of Goods Act 1923
Uniform Civil Procedure Act 2005CATEGORY: Principal judgment CASES CITED: Abalos v Australian Postal Commission (1988) 171 CLR 167
Chilcotin Pty Limited v Cenelage Pty Limited 7 Ors (1999) NSWCA 11
Hanak v Green (1958) 2 QB 9
Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481
Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631
Newman v Cook (1963) VR 659
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
State of New South Wales v Moss [2000] NSWCA; (2000) 54 NSWLR 536
Tatmar Pastoral Co Pty Limited v Housing Commission of NSW (1984) 58 ALJR 553
Thriving Enterprises Pty Limited v South Pacific Food Trader Pty Limited [2008] NSWSC 919PARTIES: Thriving Enterprises Pty Limited - Plaintiff/Appellant
South Pacific Food Trader Pty Limited - Defendant/RespondentFILE NUMBER(S): SC 2010/2736 COUNSEL: Mr RI Bellamy - Plaintiff/Appellant
Mr J Raine - Defendant/RespondentSOLICITORS: Access Law Group - Plaintiff/Appellant
Wood Marshall Williams - Defendant/RespondentLOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 626/2009 LOWER COURT JUDICIAL OFFICER : Quinn LCM LOWER COURT DATE OF DECISION: 15 December 2009
HOEBEN JIN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
JUDGMENT
2010/00002736 – THRIVING ENTERPRISES PTY LTD v SOUTH PACIFIC FOOD TRADER PTY LTD
1 HIS HONOUR:
- Nature of Proceedings
This is an appeal from a decision of her Honour Quinn LCM handed down on 15 December 2009. Her Honour entered judgment in favour of the defendant against the plaintiff on a cross-claim brought by the defendant. Her Honour entered judgment in the amount of $35,232.55.
2 The plaintiff (cross-defendant on the cross-claim) brings these proceedings pursuant to s39(1) of the Local Court Act 2007. That subsection provides:
- “39(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.”
Factual Background
3 The plaintiff…
Details
- AGLC
- Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2010] NSWSC 853
- Case
- [2010] NSWSC 853
- Decision Date
CaseChat Overview and Summary
In this case, the appellant, Thriving Enterprises Pty Ltd, brought an action against the respondent, South Pacific Food Trader Pty Ltd, in the General Division of the Local Court, seeking relief under the Sale of Goods Act 1923 (NSW). The dispute revolved around the sale of goods where the appellant claimed a diminution in the value of the goods, which fell below the reasonable expectations set by the parties during the transaction. The Local Court found in favour of the respondent, and the appellant now sought to appeal this decision.
The primary legal issue before the court was whether the appeal court should allow the appellant to raise a point that was not taken in the Local Court. The court was also required to determine whether the statutory remedies under section 54 of the Sale of Goods Act 1923 (NSW) are alternative remedies, or if they are cumulative. Additionally, the court needed to assess whether the Local Court Magistrate had provided adequate reasons for the decision and whether there were any findings as to the credit of the parties that would place the trial judge in an advantageous position.
The court held that the appellant could not raise a point on appeal that had not been taken in the Local Court unless there were exceptional circumstances. It was found that the remedies under section 54 of the Sale of Goods Act 1923 (NSW) were alternative, not cumulative. The court found that the Local Court Magistrate had provided adequate reasons for the decision, and there were no findings as to the credit of the parties that would place the trial judge in an advantageous position. Consequently, the appeal was dismissed. The court made no orders as to costs.
The primary legal issue before the court was whether the appeal court should allow the appellant to raise a point that was not taken in the Local Court. The court was also required to determine whether the statutory remedies under section 54 of the Sale of Goods Act 1923 (NSW) are alternative remedies, or if they are cumulative. Additionally, the court needed to assess whether the Local Court Magistrate had provided adequate reasons for the decision and whether there were any findings as to the credit of the parties that would place the trial judge in an advantageous position.
The court held that the appellant could not raise a point on appeal that had not been taken in the Local Court unless there were exceptional circumstances. It was found that the remedies under section 54 of the Sale of Goods Act 1923 (NSW) were alternative, not cumulative. The court found that the Local Court Magistrate had provided adequate reasons for the decision, and there were no findings as to the credit of the parties that would place the trial judge in an advantageous position. Consequently, the appeal was dismissed. The court made no orders as to costs.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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