Shokrgozar v Abouloukme [2017] NSWCATAP 232

Shokrgozar v Abouloukme [2017] NSWCATAP 232

The Tribunal correctly held that the appellant breached the consumer guarantees under ss 56 and 57 of the ACL by supplying tiles that did not correspond to the description and sample; clause 2 could not exclude this obligation, either on its construction or due to s 64 of the ACL. Leave to appeal on all factual grounds was refused, and there was no denial of procedural fairness. The appeal failed both on errors of law and, where relevant, no leave was granted for factual challenges.

Parties
Appellant: Yashar Shokrgozar; First Respondent: Yahyeh Abouloukme; Second Respondent: Leila Khaled
Jurisdiction
Australia
Judgment Date
18 December 2017
Procedural Posture
Appeal / Determination of Leave to Appeal and Appeal Disposition
Outcome
Leave to appeal refused on Grounds 1, 3, 4, 6, 7; appeal dismissed on Grounds 2 and 5.
Legal Topics
Australian Consumer Law, Consumer Guarantees, Interpretation of Contracts, Goods Supplied by Description and Sample, Exclusion Clauses
Consumer Law Contract Law Australian Consumer Law Consumer Guarantees Interpretation of Contracts Goods Supplied by Description and Sample Exclusion Clauses

Case Brief

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Parties

Yashar Shokrgozar

Appellant

Yahyeh Abouloukme

First Respondent

Leila Khaled

Second Respondent

Procedural Posture

Appeal / Determination of Leave to Appeal and Appeal Disposition

Legal Issues

  1. 1 Whether the Tribunal erred in finding breach of consumer guarantees under the ACL
  2. 2 Whether exclusion clause in contract could limit statutory guarantees
  3. 3 Whether factual findings regarding sample and quality/colour of goods were erroneous

Ratio Decidendi

The Tribunal correctly held that the appellant breached the consumer guarantees under ss 56 and 57 of the ACL by supplying tiles that did not correspond to the description and sample; clause 2 could not exclude this obligation, either on its construction or due to s 64 of the ACL. Leave to appeal on all factual grounds was refused, and there was no denial of procedural fairness. The appeal failed both on errors of law and, where relevant, no leave was granted for factual challenges.

Court Disposition

Leave to appeal refused on Grounds 1, 3, 4, 6, 7; appeal dismissed on Grounds 2 and 5.

Orders

  • Leave to appeal in relation to Grounds 1, 3, 4, 6, and 7 is refused.
  • The appeal is dismissed in relation to Grounds 2 and 5.