Luo & Anor v Fitt & Ors [2005] NSWSC 765

Luo & Anor v Fitt & Ors [2005] NSWSC 765

The appeal failed because the Tribunal's conclusions that the contract was for a Duresta 'Diplomat' sofa, that the defendants supplied such a sofa, that the photograph was not part of the contractual arrangements, and that any difference in depth or shade of colour was insignificant were reasonably open on the material and were not appealable under the narrow s67 avenue. The plaintiffs failed to establish a pure question of law warranting disturbance of the Tribunal's decision, so any extension of time would be futile.

Jurisdiction
Australia
Judgment Date
04 August 2005
Procedural Posture
Appeal Pursuant to S67 of the Consumer Trader & Tenancy Tribunal Act 2001 From a Decision of the Consumer Trader and Tenancy Tribunal of NSW / Summons in the Supreme Court; Application for Extension of Time Considered
Outcome
The appeal fails; the summons is dismissed.
Legal Topics
['appeal From Consumer Trader and Tenancy Tribunal' 'pure Question of Law' 'sale by Description' 'implied Term' 'sofa Purchase Based on Catalogue Photograph' 'extension of Time']
['administrative Law' 'consumer Law' 'contract Law' 'sale of Goods'] ['appeal From Consumer Trader and Tenancy Tribunal' 'pure Question of Law' 'sale by Description' 'implied Term' 'sofa Purchase Based on Catalogue Photograph' 'extension of Time']

Case Brief

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Procedural Posture

Appeal Pursuant to S67 of the Consumer Trader & Tenancy Tribunal Act 2001 From a Decision of the Consumer Trader and Tenancy Tribunal of NSW / Summons in the Supreme Court; Application for Extension of Time Considered

Legal Issues

  1. 1 ["Whether the plaintiffs' challenge raised a question with respect to a matter of law within s67 of the Consumer Trader & Tenancy Tribunal Act 2001." 'Whether it was futile to grant an extension of time for the appeal.' 'Whether the Tribunal erred by failing to find that the sale was a sale by description with an implied term under s18 of the Sale of Goods Act 1923 and that the sofa did not correspond with the catalogue photograph.' "Whether the Tribunal's findings about the contractual arrangements and the significance of any difference between the photograph and the delivered sofa were appealable."]

Ratio Decidendi

The appeal failed because the Tribunal's conclusions that the contract was for a Duresta 'Diplomat' sofa, that the defendants supplied such a sofa, that the photograph was not part of the contractual arrangements, and that any difference in depth or shade of colour was insignificant were reasonably open on the material and were not appealable under the narrow s67 avenue. The plaintiffs failed to establish a pure question of law warranting disturbance of the Tribunal's decision, so any extension of time would be futile.

Court Disposition

The appeal fails; the summons is dismissed.

Orders

  • ['The summons is dismissed.' 'The plaintiffs are to pay the costs of the summons.' 'The exhibit may be returned.']