Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2010] NSWSC 853

New South Wales Supreme Court

CITATION : Thriving Enterprises Pty Ltd v South Pacific Food Trader Pty Ltd [2010] NSWSC 853

HEARING DATE(S) : 30 July 2010

JUDGMENT DATE : 6 August 2010

JUDGMENT OF : Hoeben J

Plaintiff's summons dismissed. DECISION : Plaintiff to pay the defendant's costs. Leave granted to the parties to approach the Court within 14 days if they wish to make fuller submissions as to costs.

CATCHWORDS : Appeal from General Division of Local Court - appeal point not taken in court below - whether defendant would have conducted case differently - whether court should exercise discretion to allow point to be taken on appeal - SALE OF GOODS - section 54 Sale of Goods Act 1923 (NSW) - whether section 54(1) remedies are alternatives - consequences of diminution of purchase price not being raised in defence - APPEAL - whether Magistrate provided adequate reasons for decision - findings as to credit - advantageous position of trial judge.

Local Court Act 2007 LEGISLATION CITED : Sale of Goods Act 1923 Uniform Civil Procedure Act 2005

CATEGORY : Principal judgment

Abalos v Australian Postal Commission (1988) 171 CLR 167 Chilcotin Pty Limited v Cenelage Pty Limited 7 Ors (1999) NSWCA 11 Hanak v Green (1958) 2 QB 9 Metwally (No 2) v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68; (1985) 59 ALJR 481 CASES CITED : Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631 Newman v Cook (1963) VR 659 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 State of New South Wales v Moss [2000] NSWCA; (2000) 54 NSWLR 536 Tatmar Pastoral Co Pty Limited v Housing Commission of NSW (1984) 58 ALJR 553 Thriving Enterprises Pty Limited v South Pacific Food Trader Pty Limited [2008] NSWSC 919