Walker v Sell [2016] FCA 1259

Walker v Sell [2016] FCA 1259

No implied or express term of contract required the vehicle's genuineness, as the description operated only for identification and purchaser had contractual right to inspect, passing risk to purchaser; transaction was a private sale not 'in trade or commerce,' so consumer law did not apply; thus, purchaser's claim failed and appeal dismissed.

Parties
Appellant and Cross Respondent: Lyle Walker; Respondent and Cross Appellant: Glen Sell
Jurisdiction
Australia
Judgment Date
27 October 2016
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal dismissed with costs; cross-appeal and interlocutory application dismissed with costs.
Legal Topics
Sale of Goods, Sale by Description, Implied Terms, Express Terms, Misleading or Deceptive Conduct, Private Sale, Trade or Commerce, Jurisdiction, Costs, Inspection, Mistake
Commercial Law Contract Law Consumer Law Sale of Goods Sale by Description Implied Terms Express Terms Misleading or Deceptive Conduct +6 more

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Parties

Lyle Walker

Appellant and Cross Respondent

Glen Sell

Respondent and Cross Appellant

Procedural Posture

Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether sale was 'by description' under s 18 of the Goods Act 1958 (Vic) or merely identification
  2. 2 Whether there was objective reliance by purchaser on description
  3. 3 Whether private sale was in 'trade or commerce' for purposes of Australian Consumer Law (Victoria)

Ratio Decidendi

No implied or express term of contract required the vehicle's genuineness, as the description operated only for identification and purchaser had contractual right to inspect, passing risk to purchaser; transaction was a private sale not 'in trade or commerce,' so consumer law did not apply; thus, purchaser's claim failed and appeal dismissed.

Court Disposition

Appeal dismissed with costs; cross-appeal and interlocutory application dismissed with costs.

Orders

  • The appeal be dismissed with costs.
  • The respondent/cross-appellant's interlocutory application be dismissed with costs.