smythe v thomas
Assessment Item 1
Supreme Court of New South Wales Decision
Peter Smythe v Vincent Thomas (2007) NSW SC 844 (3 August 2007)
Part A
Question 1
The case was heard in the New South Wales Supreme Court, Equity Division.
Question 2
The name of the judge was Nigel Rein
Nigel Rein was an Acting Judge of the Supreme Court of NSW (Equity Division).
Question 3
Plaintiff is: Peter Smythe
Council for the Plaintiff is: B Kasep
Defendant is: Vincent Thomas
Council for the Defendant is: DM Lowenstein
Question 4
The particular circumstances which led Acting Judge Rein to doubt the credibility of the defendant’s version of events is noted in the judgement under 18(3) by no mention of an offer of $150000 being made by the plaintiff in the defendants affidavit but such being said in an answer whilst the defendant was cross examined. Furthermore 18(5)contradicts the defendants version by stating that the aircraft would not be sold unless the buyer inspected it, however the defendant listed said aircraft on ebay for sale without buyer should inspect first indicator. 18(6) further shows contradiction in regard to inspection of said aircraft by the defendant.
Question 5
The components of his argument were point 22(1),(2),(3) & (4) being contracts existed only between ebay and plaintiff and ebay and defendant but not plaintiff and defendant; plaintiff only made offer to treat; as time of payment was to be negotiated no agreement had been reached and finally that the plaintiff had waived his right to bid at the auction.
Question 6
In a traditional auction agreement is reached when no further bids are received and the auctioneer lowers the hammer accepting the last bid offered as the successful bid.
Question 7
The auctioneer is the human element in a traditional auction; he is also the agent of the seller and as such has the authority to execute the contract on behalf of the seller and buyer. With traditional auction the seller can withdraw his goods
Supreme Court of New South Wales Decision
Peter Smythe v Vincent Thomas (2007) NSW SC 844 (3 August 2007)
Part A
Question 1
The case was heard in the New South Wales Supreme Court, Equity Division.
Question 2
The name of the judge was Nigel Rein
Nigel Rein was an Acting Judge of the Supreme Court of NSW (Equity Division).
Question 3
Plaintiff is: Peter Smythe
Council for the Plaintiff is: B Kasep
Defendant is: Vincent Thomas
Council for the Defendant is: DM Lowenstein
Question 4
The particular circumstances which led Acting Judge Rein to doubt the credibility of the defendant’s version of events is noted in the judgement under 18(3) by no mention of an offer of $150000 being made by the plaintiff in the defendants affidavit but such being said in an answer whilst the defendant was cross examined. Furthermore 18(5)contradicts the defendants version by stating that the aircraft would not be sold unless the buyer inspected it, however the defendant listed said aircraft on ebay for sale without buyer should inspect first indicator. 18(6) further shows contradiction in regard to inspection of said aircraft by the defendant.
Question 5
The components of his argument were point 22(1),(2),(3) & (4) being contracts existed only between ebay and plaintiff and ebay and defendant but not plaintiff and defendant; plaintiff only made offer to treat; as time of payment was to be negotiated no agreement had been reached and finally that the plaintiff had waived his right to bid at the auction.
Question 6
In a traditional auction agreement is reached when no further bids are received and the auctioneer lowers the hammer accepting the last bid offered as the successful bid.
Question 7
The auctioneer is the human element in a traditional auction; he is also the agent of the seller and as such has the authority to execute the contract on behalf of the seller and buyer. With traditional auction the seller can withdraw his goods
References: Gibson, A 2005 Commercial Law: In principle, Lawbook Co., Sydney Turner, C 2009Australian Commerical Law, Lawbook Co., Sydney Supreme Court of New South Wales Decisions Peter Smythe v Vincent Thomas (2007) NSW844 (3 August 2007), viewed 22 August 2009 http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/844htmlhttp://austlii.edu.au/au/cases/nsw/supreme_ct/2007/844.html Simkins v Pays (1995) 1 WLR 975, viewed 22 August 2009 http://www.google.com.au/search?hl=en&source=hp&q=simpkins+v+pays+1955&meta=&aq=0sx&oq=Simkins+v+Pays Trevey v Grubb (1982) 44 ALR 20, viewed 22 August 2009 http://ask.nate.com/knote/view.html?num=1204020 http://www.google.com.au/ http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_facts_sheet