Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd - [2008] NSWSC 919

CITATION: Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2008] NSWSC 919

HEARING DATE(S): 4 September 2008

JUDGMENT DATE :
11 September 2008

JUDGMENT OF: Malpass AsJ

DECISION: Orders made by Quinn LCM on 30 January 2008 set aside; matter remitted to Local Court for determination according to law; defendant to pay the costs of appeal; if so entitled to have a Certificate under Suitors' Fund Act 1951; exhibit returned.

CATCHWORDS: COMMON LAW - appeal from Local Court - alleged misdirection - sale of goods - were issues raised - acceptance and loss of right of rejection

LEGISLATION CITED: Sale of Goods Act 1923

CATEGORY: Principal judgment

CASES CITED: Coulton v Holcombe (1986) 162 CLR 1
Fogarty v Creasey [2002] NSWCA 318
Suttor v Gundowda Pty Limited (1950) 81 CLR 418

PARTIES: Thriving Enterprises Pty Limited (Plaintiff)
South Pacific Food Trader Pty Limited (Defendant)

FILE NUMBER(S): SC 10844/08

COUNSEL: R I Bellamy (Plaintiff)
A Jamieson (Defendant)

SOLICITORS: Access Business Lawyers (Plaintiff)
Wood Marshall Williams (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 10709/05

LOWER COURT JUDICIAL OFFICER : Quinn LCM

LOWER COURT DATE OF DECISION: 30 January 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Thursday 11 September 2008

10844/08 Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd
JUDGMENT

1 HIS HONOUR: The plaintiff was the supplier of food packaging film. The defendant placed a purchase order for film of a certain specification. Subsequently, film was supplied by the plaintiff to the defendant. The film supplied did not meet the specification. The plaintiff contended that there was an intervening oral variation of the purchase order (concerning the specification). There was an attempt by the defendant to use the film. Certain of it was used in relation to one of the defendant’s products (a chocolate almond product). The defendant refused to pay for the goods.

2 The plaintiff brought proceedings in the Local Court in September 2005. An Amended Statement of Claim was filed on 18 October 2005. This was the pleading relied on by the plaintiff at the hearing. The claim was founded on alleged non-payment of film supplied pursuant to the varied purchase order. The process did not allege an acceptance of the film by the defendant.

3 The proceedings were defended. The defendant put in issue, inter alia, the alleged variation. No cross-claim was filed.

4 The proceedings went to a defended hearing. Judgment was delivered by the Magistrate (Quinn LCM) on 30 January 2008.

5 By Summons filed on 27 February 2008, the plaintiff brings an appeal against the decision alleging error in point of law.

6 The Magistrate approached her task in the following manner:

“Both parties agree that there was a contract between them for the supply of packaging film. The following are the issues for consideration. What was the contract between the parties? Was there a variation to it? If the answer to that question is ‘yes’…

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

AGLC: Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2008] NSWSC 919
Case: [2008] NSWSC 919
Decision Date: 11 September 2008

CaseChat Overview and Summary

Thriving Enterprises Pty Ltd sought redress from South Pacific Food Trader Pty Ltd in the Local Court, claiming damages for the sale of defective goods. The Local Court ruled in favour of South Pacific Food Trader, finding that Thriving Enterprises had lost its right to reject the goods. Dissatisfied with the outcome, Thriving Enterprises appealed to the higher court.

The central legal issue was whether the plaintiff had lost its right to reject the goods by an alleged acceptance of the goods, thereby barring its claim for damages. The court needed to determine whether the plaintiff's actions constituted an acceptance of the goods, which would forfeit their right to reject them.

The higher court examined the evidence and the relevant statutory provisions governing the sale of goods. It considered whether the plaintiff's conduct amounted to an acceptance of the goods, which would result in a forfeiture of their right to reject them. The court concluded that the plaintiff's actions did not constitute an acceptance of the goods, and therefore, they had not lost their right to reject them. Consequently, the appeal was allowed, and the matter was remitted to the Local Court for further consideration.

Orders