Pickles v Consumer Claims Tribunal [1999] NSWSC 104

New South Wales Supreme Court CITATION : Pickles v Consumer Claims Tribunal [1999] NSWSC 104 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30015/98 HEARING DATE(S) : 18 February 1999 JUDGMENT DATE : 23 February 1999

Pickles Auctions Pty Limited (Plaintiff)

v

The Registrar Consumer Claims Tribunal PARTIES : (First Defendant)

Jim Markakis (Second Defendant)

Minister For Fair Trading (Intervener) JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Consumer Claims Tribunal LOWER COURT FILE NUMBER(S) : TSY97/881 LOWER COURT JUDICIAL OFFICER : G. Vardas (Referee)

COUNSEL : P - Mr R W White SC, Mr J E Armfield I - Mr J Basten QC, Ms M Gilmour SOLICITORS : P - Glasson, Gemmell & McGill I - I V Knight, Crown Solicitor CATCHWORDS : Consumer claim jurisdiction Consumer Claims Tribunals Act ACTS CITED : 1987 s. 3 DECISION : Summons dismissed

- 11 - THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

MASTER MALPASS

23 February 1999

30015/98 - Pickles Auctions Pty Limited v The Registrar Consumer Claims Tribunal & Anor

JUDGMENT 1 At all material times, the plaintiff has carried on the business of, inter alia, an auctioneer. On Friday, 11 October 1996, it conducted a boat auction at Birkenhead Point Marina. One of the lots listed for auction was a 25ft Bertram GRP Flybridge Cruiser known as "Scott Free". It was listed under instructions from a finance company (Esanda Limited). There is evidence that Terms and Conditions of Auction and/or Sale were on display. These identified the plaintiff as agent of the Vendor. A Buyer's Identification form was signed by the second defendant. It also identified the plaintiff as an auctioneer acting as agent for the Vendor. The second defendant was the successful bidder for the boat. Subsequently, he paid the purchase price of $16,250 and took delivery of the boat. 2 The second defendant contends that the boat turned out to be not in a seaworthy condition, that it required extensive repairs and that it was of less value than what was being represented as the subject of the sale. 3 He purported to make a consumer claim pursuant to section 13 of the Consumer Claims Tribunals Act, 1987 (the Act) against the plaintiff seeking a money order for $19,527.75. He used the prescribed Claim Form. The Claim Form itself makes mention of an implied warranty that goods are of merchantable quality and are fit for the purpose for which they are sold. Annexed to that Form is a document headed "Details of the Claim". It refers to an advertisement and alleges that certain representations were made (see paragraphs 2-4 and 6). It also contains, inter alia, the following:- "16. Pickles Auctions engaged in misleading and deceptive advertising and conduct. Through such conduct Pickles Auctions induced me to purchase a broken down, not seaworthy vessel.