Weatherill v Bartlett

Case [2017] NSWCA 175

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Weatherill v Bartlett [2017] NSWCA 175
Hearing dates:17 July 2017
Decision date: 18 July 2017
Before: Meagher JA at [1];
White JA at [27]
Decision:

(1) Summons seeking leave to appeal dismissed.
(2) Appeal dismissed as incompetent.
(3) Applicant/appellant pay the respondent’s costs of the Summons and of the appeal, including the respondent’s notice of motion filed 10 May 2017.

Catchwords:

CONSUMER LAW – misleading or deceptive conduct – where aircraft purchased in reliance upon misleading estimate of transportation cost – where value of aircraft exceeded purchase and transportation cost – whether loss suffered

PROCEDURE – leave to appeal – where application for leave to appeal from appeal on question of law – whether costs of proceedings at first and second instance included to satisfy threshold in Supreme Court Act 1970 (NSW), s 101(2)(r) – no question of principle
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 236
Supreme Court Act 1970 (NSW), ss s 75A(7), 101(2)(c), 101(2)(q), 101(2)(r)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
Cases Cited: Condensing Vaporisers Aust Pty Ltd v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 95
Coshott v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316
James v Douglas [2016] NSWCA 178
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69
Oertel v Crocker (1947) 75 CLR 261
Pawlowska v Zajglic [2011] NSWCA 118
Category:Principal judgment
Parties: Colin Weatherill (Applicant)
Clinton Garth Bartlett (Respondent)
Representation:

Counsel:
PE King (Applicant)
RC Gration (Respondent)

  Solicitors:
Freedman & Gopalan Solicitors (Applicant)
WMD Law (Respondent)
File Number(s):2017/147909; 2017/60108
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Common Law
Citation:
[2017] NSWSC 31
Date of Decision:
6 February 2017
Before:
Adamson J
File Number(s):
2016/228657

Judgment

  1. MEAGHER JA: The applicant (Dr Weatherill) seeks leave to appeal from two decisions of the primary judge (Adamson J). By the first, her Honour allowed the respondent’s (Mr Bartlett) appeal, and dismissed Dr Weatherill’s cross appeal, from a judgment of the Local Court (Curran LCM) of 8 June 2016: Bartlett v Weatherill [2017] NSWSC 31. That appeal and cross appeal as argued only sought to raise questions of law, and accordingly were brought as of right under Local Court Act 2007 (NSW), s 39(1). By the second decision, delivered on 6 March 2017, the primary judge set aside earlier costs orders made in favour of Dr Weatherill and ordered him to pay Mr Bartlett’s costs of the proceeding in the Local Court and of the proceeding in the Supreme Court: Bartlett v Weatherill (No 2) [2017] NSWSC 181.

  2. On 5 May 2017, the applicant filed a notice of appeal from the judgment and orders of the primary judge. In response on 10 May 2017, Mr Bartlett filed a notice of motion seeking an order that the appeal be dismissed as incompetent. Dr Weatherill then filed a…

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AGLC
Weatherill v Bartlett [2017] NSWCA 175
Case
[2017] NSWCA 175
Decision Date

CaseChat Overview and Summary

The parties to this matter were Weatherill (the applicant/appellant) and Bartlett (the respondent). The dispute concerned an alleged misleading or deceptive estimate of transportation costs provided by the respondent in relation to the purchase of an aircraft by the applicant. The applicant contended that they suffered a loss as a result of relying on this estimate, even though the value of the aircraft exceeded its purchase and transportation costs. The case came before the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the applicant had suffered a loss that was recoverable under consumer law provisions relating to misleading or deceptive conduct. A secondary issue, arising from the procedural history, concerned whether the costs of the proceedings at first and second instance satisfied the threshold for leave to appeal under section 101(2)(r) of the *Supreme Court Act 1970* (NSW), particularly in the absence of a question of principle.

The court determined that the applicant had not established a loss. The reasoning was that the value of the aircraft purchased by the applicant exceeded the sum of the purchase price and the transportation costs. Therefore, the applicant had not suffered any financial detriment, which is a necessary element for a claim of loss arising from misleading or deceptive conduct. Consequently, the court found that the appeal was incompetent.

The summons seeking leave to appeal was dismissed, and the appeal itself was dismissed as incompetent. The applicant was ordered to pay the respondent's costs of the summons and the appeal, including the costs of the respondent's notice of motion filed on 10 May 2017.

Orders

Orders of the court

(1) Summons seeking leave to appeal dismissed.

(2) Appeal dismissed as incompetent.

(3) Applicant/appellant pay the respondent’s costs of the Summons and of the appeal, including the respondent’s notice of motion filed 10 May 2017.

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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