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

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

Ms Upton's statutory causes of action and those in tort for misleading and deceptive conduct and misrepresentation did not accrue until loss was reasonably discoverable in 2015; thus, her claims were not out of time when lodged. The Tribunal at first instance erred in law regarding the time bar and in failing to...

Source-derived case information.

Parties
Appellant: Sandra Christine Upton; Respondent: Martin & Stein Antiques Pty Ltd
Jurisdiction
Australia
Judgment Date
17 October 2016
Procedural Posture
Appeal / Final Determination of Consolidated Appeals From First Instance Decisions and Directions for Remittal
Outcome
Appeal allowed in part; previous decisions set aside in part; claim remitted for damages assessment; appeal otherwise dismissed.
Legal Topics
Sale of Goods, Misleading and Deceptive Conduct, Limitation Periods, Latent Defects, Jurisdiction, Remittal for Damages Assessment
Consumer Law Contract Law Tort Law Sale of Goods Misleading and Deceptive Conduct Limitation Periods Latent Defects Jurisdiction +1 more

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Summary, issues, holding and outcome

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Parties

Sandra Christine Upton

Appellant

Martin & Stein Antiques Pty Ltd

Respondent

Procedural Posture

Appeal / Final Determination of Consolidated Appeals From First Instance Decisions and Directions for Remittal

Legal Issues

  1. 1 Whether the Appellant's claims were time barred under s 79L Fair Trading Act 1987 (NSW)
  2. 2 When the causes of action for breach of contract, misleading and deceptive conduct, false representation, negligent and fraudulent misrepresentation first accrued
  3. 3 Whether there was an error of law in characterising discoverability of the defect

Ratio Decidendi

Ms Upton's statutory causes of action and those in tort for misleading and deceptive conduct and misrepresentation did not accrue until loss was reasonably discoverable in 2015; thus, her claims were not out of time when lodged. The Tribunal at first instance erred in law regarding the time bar and in failing to give procedural fairness and consider the loss established by Appellant for the purposes of jurisdiction. Decisions dismissing the claims were set aside and remitted for assessment of damages.

Court Disposition

Appeal allowed in part; previous decisions set aside in part; claim remitted for damages assessment; appeal otherwise dismissed.

Orders

  • Allow the appeals from the decisions of the Tribunal in file numbers Gen 15/58450 and Gen 15/67511.
  • Set aside the decisions of the Tribunal in file numbers Gen 15/58450 and Gen 15/67511.