Taylor v Lay [2023] NSWCATCD 66

Taylor v Lay [2023] NSWCATCD 66

The sale was in trade or commerce because the respondent bred British Bulldogs and traded under a breeder name, so the Tribunal had jurisdiction. The misleading or deceptive conduct claim failed because the applicant did not prove that the respondent knew Bobby had BOAS or other defects when she represented him as healthy, and a routine veterinary examination had detected no abnormalities. The acceptable quality claim succeeded because Bobby's severe BOAS and breathing difficulties were defects which a reasonable consumer fully acquainted with them would not regard as acceptable, amounting to a major failure. However, because the applicant elected not to reject Bobby and obtain a refund,...

Jurisdiction
Australia
Judgment Date
19 June 2023
Procedural Posture
Consumer Claim Concerning Supply of Goods Under the Australian Consumer Law (nsw) and Fair Trading Act, 1987 / Contested Hearing; Principal Judgment With Amended Orders Under S 63 of the Civil and Administrative Tribunal Act 2013
Outcome
Application allowed in part; misleading or deceptive conduct claim dismissed; acceptable quality claim proven; ongoing veterinary costs after the initial admission rejected; all other claims dismissed.
Legal Topics
['puppy Sale' 'misleading or Deceptive Conduct' 'acceptable Quality Guarantee' 'major Failure' 'consequential Damages' 'reasonable Foreseeability' 'mitigation of Loss' 'costs']
['consumer Law' 'fair Trading' 'civil Procedure'] ['puppy Sale' 'misleading or Deceptive Conduct' 'acceptable Quality Guarantee' 'major Failure' 'consequential Damages' 'reasonable Foreseeability' 'mitigation of Loss' 'costs']

Case Brief

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Procedural Posture

Consumer Claim Concerning Supply of Goods Under the Australian Consumer Law (nsw) and Fair Trading Act, 1987 / Contested Hearing; Principal Judgment With Amended Orders Under S 63 of the Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the sale of the puppy was conduct in trade or commerce so that the Tribunal had jurisdiction under the Australian Consumer Law (NSW).' 'Whether the respondent engaged in misleading or deceptive conduct by representing that Bobby was healthy.' 'Whether Bobby was of acceptable quality under s 54 of the Australian Consumer Law (NSW).' 'Whether the applicant, having elected not to reject Bobby and obtain a refund, could recover ongoing veterinary expenses as reasonably foreseeable damages under s 259(4) of the Australian Consumer Law (NSW).' 'Whether the applicant should be awarded legal costs.']

Ratio Decidendi

The sale was in trade or commerce because the respondent bred British Bulldogs and traded under a breeder name, so the Tribunal had jurisdiction. The misleading or deceptive conduct claim failed because the applicant did not prove that the respondent knew Bobby had BOAS or other defects when she represented him as healthy, and a routine veterinary examination had detected no abnormalities. The acceptable quality claim succeeded because Bobby's severe BOAS and breathing difficulties were defects which a reasonable consumer fully acquainted with them would not regard as acceptable, amounting to a major failure. However, because the applicant elected not to reject Bobby and obtain a refund,...

Court Disposition

Application allowed in part; misleading or deceptive conduct claim dismissed; acceptable quality claim proven; ongoing veterinary costs after the initial admission rejected; all other claims dismissed.

Orders

  • ['The respondent, Courtney Lay, is to pay the applicant, Ruby Taylor, the sum of $4,365.25 on or before 26-Jun-2023.' 'The respondent, Courtney Lay, is to pay the applicant, Ruby Taylor, costs in the sum of $1,418.12 on or before 26-Jun-2023.' 'All other claims are dismissed.']