Lobster and Co Trading Pty Ltd v TLC Industries Pty Ltd [2024] NSWSC 477

Supreme Court New South Wales

Medium Neutral Citation: Lobster and Co Trading Pty Ltd v TLC Industries Pty Ltd [2024] NSWSC 477 Hearing dates: 21 March 2024 Date of orders: 3 May 2024 Decision date: 03 May 2024 Jurisdiction: Common Law Before: Davies J Decision: (1) Grant leave to the plaintiff to appeal. (2) Uphold the appeal. (3) Set aside: (a) the judgment of Magistrate Manea in the Local Court given on 2 June 2023; and (b) the judgment of Magistrate Manea in the Local Court given on 16 August 2023. (4) Judgment for the plaintiff in the sum of $11,461.86. (5) The defendant is to pay the plaintiff's costs of the hearing in the Local Court in the sum of $2,500. (6) The defendant is to pay 90% of the plaintiff's costs of these proceedings. (7) The defendant is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled. Catchwords: APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of approximately $11,500 – where defendant supplied 55 wood folding utility tables – where plaintiff alleges tables were defective from the outset – no evidence of neglect, misuse or excessive use – plaintiff claims cost of replacement and hire tables – implied statutory warranties – terms of use include 3 month commercial warranty – Magistrate dismissed claim – held Magistrate erred by (1) failing to determine how statutory warranties applied to the claim and (2) concluding there was no warranty about commercial use – errors mixed questions of law and fact – whether leave should be granted – where Magistrate also ordered plaintiff to pay costs of $15,000 plus disbursements of $6,130 – costs order almost double the amount of the claim – where prima facie position under Local Court Practice Note 1 is $2,500 maximum – sufficient injustice to grant leave to appeal – appeal upheld – judgment set aside JUDGMENT AND ORDERS – amending, varying and setting aside – whether proceedings should be remitted to the Local Court – further hearing inconsistent with s 56 of the Civil Procedure Act – where no cross-examination occurred – this Court in as good a position to determine the matter – no reason to reject unchallenged evidence of the plaintiff's director – plaintiff entitled to replacement and compensation – terms of the judgment varied – judgment for the plaintiff in the sum of $11,461.86 Legislation Cited: Acts Interpretation Act 1901 (Cth) s 2C Civil Procedure Act 2005 (NSW) s 56 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law ss 3, 54 Local Court Act 2007 (NSW) ss 39, 40 Sale of Goods Act 1923 (NSW) s 19 Suitors' Fund Act 1951 (NSW) s 6 Uniform Civil Procedure Rules 2005 (NSW) r 50.16A Cases Cited: Ackerman v Morgan [2019] NSWSC 1250 Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94 Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Texts Cited: Nil Category: Principal judgment Parties: Lobster and Co Trading Pty Ltd (Plaintiff) TLC Industries Pty Ltd (Defendant) Representation: Counsel: A Fernon SC (Plaintiff) L Teoh (Defendant)