Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park [2007] NSWCA 151

Reported Decision: (2007) ATPR 42-171 Appeal Outcome: Special leave refused with costs by the High Court - 16 November 2007

New South Wales Court of Appeal

CITATION: Gharibian v Propix Pty Ltd, trading as Jamberoo Recreational Park [2007] NSWCA 151

HEARING DATE(S): 7 June 2007

JUDGMENT DATE: 22 June 2007

JUDGMENT OF: Mason P at 1; Ipp JA at 7; Tobias JA at 81

DECISION: (a) Appeal upheld; (b) judgment of Balla DCJ set aside; (c) verdict and judgment in favour of the appellant on the issue of liability; (d) proceedings remitted to the District Court for the determination of the appellant's damages; (e) the respondent to pay the appellant's costs of the trial and the appeal; and (f) the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise entitled.

CATCHWORDS: TRADE PRACTICES – warranties in relation to the supply of services (Trade Practices Act 1974 (Cth), s 74) – materials supplied in connection with the supply of such services – whether there existed a contract between the appellant and the respondent whereby the respondent undertook to supply recreational services to the appellant – the supply of materials (a toboggan run and a toboggan) in connection with such recreational services – whether such materials were reasonably fit for the purpose for which they were supplied, namely, to undertake the toboggan run safely when operated by any member of the general public - TORTS – negligence – duty of care – breach – whether the respondent, the operator of the toboggan run, breached its duty of care to the appellant – the issue of breach turns only on factual questions

Civil Liability Act 2002 (NSW) Suitors' Fund Act 1951 (NSW) Trade Practices Act 1974 (Cth) ss 52 LEGISLATION CITED: 53(a) 53(c) 68 68B 74