Walker v Sell [2016] FCA 1259

FEDERAL COURT OF AUSTRALIA

Walker v Sell [2016] FCA 1259 Appeal from: Walker v Sell [2016] FCCA 452 Cross-appeal from: Walker v Sell (No.2) [2016] FCCA 654

File number: NSD 409 of 2016

Judge: BROMWICH J

Date of judgment: 27 October 2016

Catchwords: SALE OF GOODS – appeal from Federal Circuit Court – advertisement of private sale of particular model of collectable car on Gumtree – application of ss 18 and 61 of the Goods Act 1958 (Vic) – meaning of "sale by description" – inspection of car by purchaser – contract for private sale of collectable car – common mistake that car was particular model – post-settlement inspection revealed car was a different model and worth $110,000 less than purchase price – whether vendor or purchaser shoulders risk of the transaction – whether purchaser's inspection was reasonable – where purchaser had opportunity for expert inspection during one year settlement period – held purchaser shoulders risk – held sale not "by" description –appeal dismissed with costs CONSUMER LAW – whether private sale advertised on Gumtree is in "trade or commerce" – held not in trade or commerce – whether accrued federal jurisdiction still enlivened if private sale is not in "trade and commerce" – whether consumer claim brought under State or federal jurisdiction – held claim brought under State jurisdiction per s 18 of the Australian Consumer Law (Victoria) – held direct federal jurisdiction not engaged – held accrued federal jurisdiction still enlivened as absence of engagement of direct federal jurisdiction not "colourable" CONTRACTS – whether particular model of car was express or implied term of the contract for sale – nature of legal relations characterised by objective intention and conduct of the parties as per Toll v Alphapharm – held model of car not an express or implied term – whether oral term of the contract allowed purchaser to rescind on expert valuation – held that oral term allowed purchaser to rescind, but no expert valuation and therefore no rescission COSTS – cross-appeal to seek to increase fixed costs sum awarded in Federal Circuit Court – interlocutory application seeking to adduce fresh evidence on costs to support increased award of costs – where letter of compromise not put before primary judge – held no error in primary judge's exercise of discretion to award fixed costs where offer of compromise was not put before primary judge – held cross-appeal and interlocutory application dismissed with costs