Hubner v Bandamora Gallery [2017] NSWCATCD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hubner v Bandamora Gallery [2017] NSWCATCD 19 Hearing dates: 6 December 2016 & 23 January 2017 (written submissions) Decision date: 20 March 2017 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: 1. The application is dismissed. Catchwords: Limitation periods; agency; disclosed or un-named principal; expert evidence; misleading or deceptive representations Legislation Cited: Fair Trading Act 1987 Limitation Act 1969 Cases Cited: McBride v Christie's Australia Pty ltd [2014]NSWSC 1729 Marsh & McLennan Pty Ltd v Stanyers Transport Pty Ltd [1994] 2 VR 232 Texts Cited: Professor Reynolds "Practical Problems of the Undisclosed Principal Doctrine" (1983) Current Legal Problems 119 Category: Principal judgment Parties: Michael Hubner and Alison Hubner (Applicants) Bandamora Investments Pty Ltd t/as Bandamora Gallery (Respondent) Representation: Applicants in person Mr Bell, solicitor, for the respondent File Number(s): GEN 16/44026 Publication restriction: Nil

REASONS FOR DECISION 1. This is an application for an order for the refund of the purchase price paid for a painting purchased in 2007, which the applicant alleges is a forgery. 2. The matter was listed for hearing before me on 06.12.16. Mr Hubner appeared on behalf of both applicants. A principal of the respondent company Mr Tozer did not appear. Mr Bell lawyer sent a detailed letter to the Tribunal attaching a medical certificate and a schedule of Mr Tozer's pharmaceutical regime. Mr Bell sought leave to present the case for the respondent on the grounds Mr Tozer was elderly and unwell and was certified by his medical practitioner as being unable to drive from Tumut to Sydney due to suffering from visual disturbance and dizziness. Mr Hubner did not object and I granted leave for Mr Bell to appear on behalf of the respondent. 3. Mr Tozer telephoned the Tribunal and I granted leave for him to give sworn evidence over the phone. At the conclusion of the evidence orders were made for both parties to file written submissions.