smythe v thomas Essay

1092 Words Jan 8th, 2014 5 Pages
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
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With ebay auctions there is no human agent and by its terms and conditions no auctioneer; nor does ebay have authority to execute a contract. Ebay does not offer a provision for withdrawal of goods from sale at the auction either.
Question 8
The automatic close of the bidding at a fixed time and the generation of an eBay advice headed “won” appear to have been accepted by the parties to an eBay auction as the equivalent of the fall of the hammer. The significance of each is, at a traditional auction the fall of the hammer accepting the last bid as the successful bid and at eBay auction with automatic close of bidding at a fixed time and indication of the “won” advice to the successful bidder.
Question 9
An order for specific performance of the contract was appropriate as the item for auction was a Wirraway Australian Warbird Aircraft manufactured in 1944 and such item is deemed unique or of a special kind and where the award of damages would not be an adequate compensation to the buyer.

Question 10
In point 76 Acting Justice Rein refers to a need to obtain further information to enable orders to be drawn up in an appropriate form however he does not think the matters to which he has referred to presents an obstacle to the order for specific performance.

Question 11
The matter was heard in the Supreme Court due to the unique nature of the item of the contract in dispute namely a Wirraway
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