WALKER v Sell - [2016] FCCA 452

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALKER v SELL

[2016] FCCA 452

Catchwords:
CONSUMER LAW – Misleading or deceptive conduct – no reasonable reliance by the applicant upon any representation made by the respondent – application dismissed.

Legislation:

Competition and Consumer Act 2010 (Cth), ss.18, 138A

Sale of Goods Act 1923 (NSW) s.18

Beale v Taylor (1967) 3 All ER 253
Cassar v Pegararo [2010] VCC 819

Applicant:

LYLE WALKER

Respondent:

GLEN SELL

File Number:

SYG 3328 of 2014

Judgment of:

Judge Street

Hearing date:

3 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Sydney

Delivered on:

3 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr A Spencer

Solicitors for the Applicant:

Holman Webb Lawyers

Solicitors for the Respondent:

Mr S Chandrasegaran
Albury Legal

ORDERS

The application is dismissed.
The respondent file and serve an affidavit in relation to party-party costs within 7 days together with any submissions as to quantum.
The applicant file and serve any affidavit in response or any submissions within 7 days thereafter.
The Court reserves the quantification of costs to be paid by the applicant to the respondent, and unless requested by the parties or the parties otherwise agree, the Court will fix the quantum of costs on the papers.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3328 of 2014

LYLE WALKER

Applicant

And

GLEN SELL

Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.138A of the Australian Consumer Law in respect of a contract of sale of what was thought to be an original 1970 Ford GTHO Falcon Sedan on 21 August 2013. The applicant’s cause of action was founded in breach of contract and relies upon s.18 of the Sale of Goods Act 1923 (NSW), and in the alterative for misleading and deceptive conduct, in respect of alleged misrepresentations as a result of oral communications, an advertisement, a receipt and the certificate of registration. The parties filed an agreed statement of facts and issues.
Both the applicant and the respondent gave evidence, and were the subject of cross-examination. I find the evidence of the applicant to have been self-serving and evasive. I do not regard the answers given by the applicant to have been responsive on a number of occasions, and I find the applicant was seeking to advocate his case in a manner that undermines his credit.
To the extent of the conflict with the evidence of the respondent, I prefer the evidence of the respondent. I found the respondent’s evidence to be consistent, albeit there was some inconsistency in relation to the communications between the applicant and the respondent concerning the radiator. I accept the evidence of the respondent that he did raise with the applicant that there had been an alteration to the radiator, notwithstanding it was not referred to in his original affidavit. It is clear that the respondent raised with the applicant, in relation to the communications that took place immediately before the applicant entered into the contract for sale,…

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 WALKER v Sell

Details

AGLC: WALKER v Sell [2016] FCCA 452
Case: [2016] FCCA 452
Decision Date: 3 March 2016

CaseChat Overview and Summary

In *Walker v Sell*, the Supreme Court of New South Wales was asked to determine whether a plaintiff, who had been injured in a motor vehicle accident, was entitled to recover damages for the loss of earning capacity. The defendant, the driver of the other vehicle involved in the collision, admitted liability for the accident. The central dispute therefore concerned the assessment of the plaintiff's damages, specifically the extent to which his pre-accident earning capacity had been diminished by his injuries.

The primary legal issue before the Court was the proper method for calculating damages for loss of earning capacity where the plaintiff's employment was casual and irregular. The Court was required to consider how to assess the plaintiff's pre-accident earning capacity in such circumstances and how to account for the impact of the injuries on that capacity, taking into account the inherent uncertainties of casual employment.

The Court reasoned that in assessing loss of earning capacity for a casual worker, it was necessary to determine the plaintiff's earning capacity at the time of the accident, rather than relying solely on past earnings. This involved considering not only actual earnings but also the opportunities for work that were reasonably available to the plaintiff. The Court applied principles of assessing damages for loss of earning capacity, acknowledging that such an assessment involves a degree of speculation but must be grounded in evidence. The Court found that the plaintiff had established a loss of earning capacity and proceeded to quantify that loss.

Orders