Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Hearing dates: 3 June 2016 and further interlocutory directions dated 15 June 2016 and 18 July 2016, including direction for any written submissions by the Respondent by 5 August 2016. Date of orders: 17 October 2016 Decision date: 17 October 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member R Deutsch, Senior Member Decision: (1) Allow the appeals from the decisions of the Tribunal in file numbers Gen 15/58450 and Gen 15/67511. (2) Set aside the decisions of the Tribunal in file numbers Gen 15/58450 and Gen 15/67511. (3) Order that the Appellant's claim in file number Gen 15/58450 be remitted to the Tribunal at first instance for assessment of the amount to be paid by the Respondent to the Appellant pursuant to s 79N (a) of the Fair Trading Act 1987 (NSW) on the basis of the Respondent's contraventions of sections 42 and 44(a) of the Fair Trading Act 1987 (NSW) as described in these reasons. (4) The Tribunal to whom the matter referred to in Order 3 is remitted, is to make directions for the provision by the parties of evidence in relation to the matter remitted. (5) The appeal from the decision of the Tribunal at first instance in file number Gen 15/62147 is dismissed. Catchwords: APPEAL – sale of goods –misleading and deceptive conduct - inferior quality latent - time bar for jurisdiction of the Tribunal under s 79L of the Fair Trading Act 1987 (NSW) – whether all causes of action first accrued at time of purchase – when discoverable with reasonable diligence – whether loss suffered -- separate assessment of loss – no appeal from original decision - amendment of notice of appeal in the interests of justice, convenience and expense and for real issues to be determined. Legislation Cited: Australian Consumer Law (Cth) Australian Consumer Law (NSW) Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 (NSW) Limitation Act 1969 (NSW). Sale of Goods Act 1897 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186 Hawkins v Clayton [1998] HCA 15; (1988)164 CLR 537 Herbert v American Express Australia Ltd & Ors [2016] NSWCATAP 47 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729 Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 Wardley v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another [2014] HCA 16; 216 CLR 515 Texts Cited: Handley, Spencer Bower and Handley Res Judicata, 4th edition Category: Principal judgment Parties: Sandra Christine Upton (Appellant) Martin & Stein Antiques Pty Ltd (Respondent) Representation: The Appellant appeared unrepresented. The Respondent did not appear. File Number(s): AP 16/17397 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Before: S Hennings, Member, decision dated 4 November 2015 in GEN 15/58450;D Charles, Member, decision dated 11 December 2015 in GEN 15/62147;C Paull, Member, decision dated 17 March 2016 in GEN 15/67511. File Number(s): GEN 15/58450, GEN 15/62147, GEN 15/67511