Wong on Civil Liability

Consumer Protection: Breeders of Animals and Purchasers

Work-in-progress, 29 February 2024

[#] Breeder - Consumer Protection Legislation

[#1] Breeder: ACL: 

• "in trade or commerce" - depends on whether seller was in the business of selling horses or a private one-off (second-hand goods) transaction: Moran v Christian (Civil Claims) [2017] VCAT 1281, [58]; (in the second-hand motor vehicle context, see Walker v Sell [2016] FCA 1259, [76] (Bromwich J) - the private sale of a second-hand personal motor vehicle through a classified advertisement on Gumtree was not in trade or commerce because it was not done in the course of a business activity or arising in a business context, ie, a one-off transaction).

• Consumer Protection WA: "Your rights Under Australian Consumer Law (ACL), pet buyers have the same rights and protections that apply to most other purchases. Your pet should: be free of any significant health issues and live a healthy lifespan relevant to the breed match descriptions advertised by the seller do everything you would normally expect the animal be of acceptable quality. Sellers must also meet any additional promises about the pedigree, condition, performance or characteristics of the animal they make. If something goes wrong If your pet doesn’t meet the above requirements, under ACL options you can discuss with the seller include: meeting the costs of veterinary treatment and/or medication required exchanging your pet for another one financial compensation for the loss of a pet, or costs such as vet bills partial or total refund. Owners often bond with their new pet immediately. Under ACL, if something is not right with your pet (such as a health condition) but you don’t want a replacement, you may still be eligible for a full or partial refund.": DEMIRS, 'Buying a Pet' (Webpage) <https://www.commerce.wa.gov.au/consumer-protection/buying-pet#:~:text=of%20the%20pet.-,Your%20rights,descriptions%20advertised%20by%20the%20seller>.; "Generally, pets are purchased from pet shops, professional breeders or private sellers, or adopted from animal shelters or rescues. Under the Australian Consumer Law (ACL), buying a pet from a pet shop or professional breeder is the same as buying any other product. You’re protected by a basic set of consumer guarantees to ensure you get what you paid for. Consumer guarantees state products must: match descriptions made by the seller and in advertising; do all the things you would normally expect them to do; look acceptable; and be safe, lasting and have no defects. When buying a pet, this means it should be free from any significant health issues and live for a reasonable length of time after purchase. If you buy a pet based on a specific description, it must match the description and be suitable for any purpose discussed with or by the seller. When adopting a pet from an animal shelter or rescue, some consumer guarantees may apply but only in very limited circumstances due to the often unknown history of the pet. Consumer guarantees do not apply to one-off purchases from private sellers. A professional breeder would be considered a private seller if they normally breed dogs or cats to show, not to sell, but undertake the occasional sale of puppies or kittens from a litter. If you are unsure whether your pet purchase is covered by the ACL, contact Consumer Protection.": DEMIRS, 'A guide to consumer rights when buying a pet' (Webpage) <https://www.commerce.wa.gov.au/publications/guide-consumer-rights-when-buying-pet>. 

• See discussion of relevant principles of M/D conduct and consumer product guarantees under the ACL in a case where breeder sold British Bulldog puppy diagnosed with a serious congenital health condition shortly after being purchased (including damages, vet fees, legal fees, etc) - "The respondent agreed with the applicant to pay half of the first veterinary costs of $8,730.50 and then a return and refund of Bobby. The respondent claims that this was a “good will gesture.” However, Section 54 of ACL provides that the respondent is to comply with the guarantee. In my view, the breathing difficulties of Bobby and the severe BOAS are defects in Bobby that had the applicant been aware of or a reasonable consumer aware of, the applicant or a reasonable consumer would not have purchased Bobby. I find on balance that this claim is proven. Although this was not raised as an issue during the hearing, I also find that the condition of severe BOAS that affects Bobby’s health, is a major failure pursuant to Section 260 of the ACL.": Taylor v Lay [2023] NSWCATAP 328 (12 December 2023); award of legal fees in Taylor v Lay [2023] NSWCATCD 66 aff'd.

> The Appeal Panel's discussion at [79] of the Yorke v Lucas principle on accessorial liability and subsequent extension of this principle (ie, a knowledge requirement) as a criteria for primary liability under s 18 of the ACL is troubling. The troubling passage: "In our opinion, the Appellant’s submissions misconstrue the above authorities and the Tribunal’s application of them to the specific facts of this case. The Tribunal did not conclude that intention to mislead or deceive was not necessary to establish liability under s 18 of the ACL. The Tribunal correctly had regard to the Respondent’s “knowledge of the essential elements” of the alleged misrepresentation: Yorke v Lucas. Having regard to all relevant circumstances at the time the representation was made, the Respondent did not have knowledge of Bobby’s congenital condition and did not misrepresent the health condition of Bobby’s parents or the health condition of the first or second litters. The Respondent was not asked if Bobby may have BOAS or any other congenital condition. Even if the Appellant had asked that question, on the matters established on the evidence, the Respondent’s response would not have been materially different to the response that she provided to the effect that Bobby appears healthy and his parents were healthy."

> It is trite law that a representor's intention to mislead or deceive is not an ingredient of the prohibition in section 18 of the ACL: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216, 223, 228 (Stephen J), also Murphy J: "Conduct is deceptive or misleading if it has a capacity or tendency to mislead or deceive; intention to mislead or deceive is not required."

> The Appeal Panel's discussion of s 54 of the ACL appears to be apt. 

• (Similar to ACL: UK - Wales): damages allowed for price of dog and veterinary costs: "Case concerns the sale of an Old English Sheepdog puppy that was said to have been of unsatisfactory quality at the point of sale on account of two latent conditions. ... In the present case, the evidence shows that at the point of sale Lady had hip dysplasia, although the condition was latent. The condition was liable to and did become painful and disabling for Lady and, if it were to be treated, expensive for her owner. Ms Pendragon accepted in evidence that a puppy known to have hip dysplasia would be unsellable and would have had to be given away. These matters strongly support the Judge's conclusion that there was a breach of the term in section 9(1) of CRA. ... However, I have concluded that the Judge was indeed correct to hold that Ms Pendragon was in breach of contract. Ms Coom accepted and could not have complained of the fact that Lady was not suitable for breeding purposes. She did not know that Lady had hip dysplasia. There is also no evidence that she knew that Lady was at special risk of hip dysplasia. Any animal may have a latent constitutional condition that will adversely affect its health—that indeed was a point made by Miss Anthony—but that does not mean that such conditions are incapable of rendering the animal's condition unsatisfactory for the purposes of section 9(1). The price paid for Lady reflected the fact that she was suitable as a pet but not for breeding purposes, but the evidence does not show that it reflected any discount for the risk of a particular defect or condition. ... I consider that Ms Coom should be entitled in these proceedings to recover in respect of the fees that had been incurred by the end of March 2019 in respect of the hip dysplasia but not otherwise. The Judge's decision was that damages could in principle be awarded for the cost of treating the condition that rendered the dog in an unsatisfactory condition, and there is no appeal against that part of his decision. Insofar as the expenditure on veterinary fees before April 2019 related to conditions other than hip dysplasia, its recovery could be justified only on the basis that it was wasted expenditure. As Ms Coom has retained Lady, the expenditure has not been wasted. ... The total veterinary expenses that can be identified as being referable to hip dysplasia prior to April 2019 are £417.44. The uninsured part of that is £83.49. ... Accordingly, there will be judgment for the claimant for £1,000 and for damages of £83.49.": Pendragon v Coom [2021] EW Misc 4 (CC) <https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/Misc/2021/4.html>. 

• (Adoption Centre - Feline Infectious Peritonitis - acquired illness) See discussion of ss 18 and 54 ACL in respect of manifestations of latent conditions in animals and "after-acquired" knowledge of the animal's health at point of sale (or in this case, adoption), where animal was known to have had previous infections and that was disclosed, no evidence that disease was present at point of sale, in Paws & Claws Adoptions Inc v Colclasure & Anor [2023] SADC 21. Court regarded assessment of acceptable quality would be different had it been a breeder: "Paws & Claws promote their service as an adoption agency for rescued animals. This must be contrasted with an animal breeder." See also discussion of Dawson v Pacific Chase Investments (General) [2012] NSWCTTT 432 within.

• The Commissioner for Consumer Protection v Armstrong [2012] WASC 206, [28]-[43]: vendor was selling puppies with implied representations as to their health and fitness for purpose, specifically in relation to vet checks, vaccinations and worming. The puppies were not however health checked or healthy, in breach of enforceable undertakings. 

• Large swollen mammary mass on abdomen, not fit for purpose of breeding - sale of breeding dog - overseas sale to Hawaii - supplying dog with undisclosed mammary mass - "I find that Ebony was unfit for purpose and not of  acceptable quality  given the existence of mammary masses and the subsequent hysterectomy which brought an end to Ebony’s breeding possibility. This was the very purpose for which Ebony was purchased. Accordingly, I find that the respondent had misled, although unintentionally, the applicant about Ebony’s size. ... I accept the applicant’s evidence that she would not have acquired Ebony had she known Ebony’s correct size and condition. On that basis the applicant is entitled to be compensated for the detriment she suffered. The detriment includes the shipping transportation and importation expenses of $2550, purchase price of Ebony of $2728, veterinarian bill of $187 and miscellaneous international phone calls and postage of $100 making a total of $5565.00. The applicant should be compensated for these expenses. ... I reject the applicant’s claim for $6000 being for loss of income from progeny and subsequent litters for three years. I accept that the $6000 figure is discounted from what a successful  breeder  could achieve. However, if the applicant received compensation for lost profit she would have a windfall gain. She would receive the profits from breeding without the associated expense. The applicant is obliged to mitigate her loss when claiming damages under s236 of the ACL. It is, as she has in fact done, open to the applicant to purchase a breeding dog to replace Ebony. Breeding dogs will only have a set number of litters. The applicant will be able to make an income from the replacement dog. Accordingly I am not satisfied that she has suffered any loss because she is unable to continue to breed from Ebony. On this basis I will not make any order in relation to lost income from breeding Ebony.": Reimann v Leo (Civil Claims) [2018] VCAT 729.

• (claim dismissed because sale was not in 'trade or commerce', but otherwise examined the matter - found no breach of s 54 ACL on the evidence - genetic defect not established - no test to establish genetic defect - consideration of matter cursory and in obiter, given findings that sale was not in trade or commerce) - "The application was for an order to pay the amount of $4,707.65 being the total of the price paid for the purchase of a Blue Great Dane puppy, freight charges and veterinary fees. The puppy was purchased in October 2012 and died in April 2013. The applicants claim that the puppy had megaoesophagus, a hereditary condition which considerably reduces the lifespan. The applicants assert that the puppy was not of  acceptable quality  and that they were entitled to a refund and consequential losses. ... The evidence before the Tribunal was that the respondent was a registered  breeder  of Blue Great Danes. However the respondent gave evidence that he bred puppies as a hobby only and not as a business; in the past 10 years he had bred 3 litters; and that he bred puppies in order to promote the breed and not as a business. He also gave evidence that he did not claim expenses or declare the income relating to the puppies in his tax return. The Tribunal determined that the sale of the puppy was not in trade or commerce; and that the supply of the puppy had not been in the course of carrying on a business to supply puppies. Therefore the sale of the puppy did not fall within the definition of a consumer claim pursuant to the Consumer Claims Act. ... The evidence before the Tribunal was: (a) puppy had been examined and vaccinated by a qualified vet prior to being shipped to the applicants on 30 November 2012; (b) puppy was said by the applicants to be "going great" in an email sent on 19 December 2012; (c) that on or about 3 February 2013 the applicants informed the respondent that the puppy had a medical condition being an enlarged oesophagus, that was possibly hereditary and that he may grow out of; (d) on or about 22 February 2013 the puppy was struck by a car and suffered some injuries to his head with a fractured jaw; (e) on or about 7 March 2013 the applicants wrote to the respondent enquiring about de-sexing the puppy and in that email correspondence stated "Hi just letting you know Henry is doing really well!"; (f) on or about 15 April 2013 the puppy was euthanised following a diagnosis of aspiration pneumonia secondary to his megaoesophagus; (g) a letter from Hall Veterinary Surgery, dated 17 August 2013 states that the owners were advised how to manage the megaoesophagus condition and that megaoesophagus condition is consistent with a congenital cause. Other evidence provided by the respondent indicates that there is no test to establish any genetic defect, that mega oesophagus is diagnosed on the basis of symptoms and that it may be either hereditary or acquired - for instance through poor feeding habits; (h) the applicants provided no autopsy evidence of the actual cause of death, no evidence that the mega oesophagus condition was more likely than not to be a genetic defect. The Tribunal therefore was not satisfied on the evidence before it that, if this matter was to be considered pursuant to the Australian Consumer Law, the applicants has established on the balance of probabilities that the puppy was not of " acceptable quality "": Lauren Allen and William Bruce v Chris O'Loughlin [2014] NSWCATCD 21.

• (case discusses ss 54 and 56 ACL principles - successful) Purchase of horse for purpose of competitive equestrian events - issue with hind legs - diagnosis: "The horse has been diagnosed with bilateral hind limb progressive atraumatic suspensory ligament degeneration. This condition results in loss of elasticity and ‘stretching’ of the suspensory apparatus. The prognosis for future athletic performance is poor." - "Lenny has been diagnosed with progressive atraumatic degeneration of the suspensory ligament in both hindlimbs. The cause of the condition remains unknown, however it is generally a progressive condition. The prognosis for athletic function is guarded." - "The circumstances that give rise to these proceedings are unfortunate; it is not a nice task to determine a dispute concerning a deceased animal. However, it is important to note that the fact that Damascus was euthanised is not central to the questions in issue for this Tribunal. The key fact that gives rise to the Applicant’s claim is that Damascus suffered a physical deformity, which prevented him from being used for the purpose envisioned by the parties when the sale occurred – competitive performance. I am satisfied from the totality of the evidence before the Tribunal, including Dr Kent’s reports, that Damascus did suffer from a progressive or degenerative condition which rendered him incapable of being a “performance horse”. In this sense, and contrary to sections 54 and 56 of the ACL: 44.1 Damascus was not fit for all the purposes for which goods of his kind (competitive equestrian horses) are commonly supplied; 44.2 Damascus was not free from defects; 44.3 Damascus did not correspond with the description given by the Respondents. I do not accept the Respondents’ contention that the circumstances in which the Applicant kept Damascus, being near a dam and with other possibly aggressive horses, could have caused him to sustain an injury consistent with what was diagnosed. Not only was there no evidence of such an incident causing injury, but the reports of Dr Kent, in their use of the words “atraumatic” and “progressive” and “degeneration”, support that the issue with Damascus’ hindlegs was in the form of a gradually presenting deformity rather than an injury arising from a precipitating incident. Further, I have no reason to disbelieve the Applicant’s evidence that Damascus did not suffer any injury whilst on her property. ... There was no supply of the horse in accordance with the guarantee as to  acceptable quality  nor was there supply of a horse in accordance with the guarantee as to the supply of goods by description. Conclusion On the balance of probabilities, given the time frame and the atraumatic, progressive, and degenerative nature of the deformity, sections 54 and 56 of the ACL are not satisfied. Simply put, the Respondents made an implied statutory guarantee that Damascus was able to perform at the level of a competitive show horse, when he was in fact unable to do so. The Applicants are entitled to damages pursuant to s 236 of the ACL. My findings in this regard are limited to the purchase price, being $6,600, given that the other monies discussed were paid for ancillary services that the Applicant acknowledged she agreed to incur, as opposed to part of the goods for which the guarantee was made.": Licastro v Joyce (Civil Claims) [2022] VCAT 675.

• (donated puppy - except for vet, de-sexing, and transport costs) - allegation of genetic issues, weight issues - Donation of puppy was not in trade or commerce - dismissed: Belle v Manners (Civil Claims) [2017] VCAT 555.

• Circovirus had infected the pup and had caused a condition called cryptosporidium - "Having seen a photograph of a pup on a Facebook page, the applicants were led to inquire of Mr McDowall whether he had any pups left for sale.  On 7 April 2020 Mr Blanchard telephoned Mr McDowall and there was a conversation about two pups that Mr McDowall had for sale.  The allegation that the applicants made in their application was that Mr McDowall represented to them during that conversation that both pups were in good health and had no health issues whatsoever, that in reliance upon that representation they purchased one of the pups, and that the representation was misleading or deceptive because the pup they purchased was in poor health and required extensive veterinary treatment.  The evidence of Mr Blanchard about the conversation did not reach the heights of the allegation.  His evidence was only that when he enquired about the health of the pups Mr McDowall said that they were good and ready to go and had been vaccinated.  Mr McDowall’s evidence was that he told Mr Blanchard only that the pups had been seen by a veterinary surgeon, had been wormed and had been microchipped.  I was not satisfied that Mr McDowall had made any misleading or deceptive statement about the pups’ health that induced the applicants to purchase one of the pups. The evidence of Mr Blanchard was that on 10 April 2020, having selected one of the pups (the quieter of them, he said), during the drive from Mr McDowall’s place to the applicants’ place the pup emitted gas from its bowels.  On the same day it was apparent that it had diarrhoea.  Ms Besnard gave evidence that the pup showed little interest in milk that Mr McDowall had supplied or in food.  On 12 April 2020 she contacted an emergency veterinary clinic who advised her to keep the pup hydrated, then on 15 April 2020, having got the earliest appointment with The Broadmeadows Vet that she could, she kept the appointment and the clinic made an initial diagnosis of gastroententis and prescribed treatment. On 22 April 2020, according to Ms Besnard’s evidence, she took the pup back to The Broadmeadows Vet because the pup was continuing to exhibit diarrhoea.  Visits to The Broadmeadows Vet continued throughout 2020 and the applicants paid for an administered medication that the veterinary surgeon prescribed. ... Supported as it was by the veterinary report, I accepted the evidence of the applicants and found that the pup was ill and in poor condition when Mr McDowall sold it to them.  That did not mean that Mr McDowall knew of those facts at the time of the sale; I did not make that finding. The law treats domestic animals as goods. Section 54 of the Australian Consumer Law (Victoria) provides (so far as is relevant) that if a person supplies, in trade or commerce, goods to a consumer, there is a guarantee that the goods are of acceptable quality. A pup that was as ill as this pup was on the day of the sale is not a pup of acceptable quality. The failure of Mr McDowall to comply with the guarantee means that he was liable to compensate the applicants for any loss that resulted from the breach. The first item of loss that the applicants claimed was $1,200.00, the price they paid for the pup.  They could have returned the pup soon after having taken delivery of it, and could have demanded their money back.  They did not.  They kept the pup and treated it for its illness.  Awarding them the price they paid would result in them having got the pup for free.  They were not entitled to recover the purchase price. The second item of loss claimed was the veterinary expenses. With one exception, I was satisfied that those expenses were reasonably incurred and were caused by the non-compliance with the guarantee of acceptable quality. The exception was $400.00 which the applicants paid for a castration, which was necessary because the pup’s testes had not descended property into the scrotum. There had been no evidence that the applicants had told Mr McDowall at the time of the sale that they wanted a dog for breeding purposes. The defect did not mean that the pup was not of acceptable quality. After deduction of that amount of $400.00 the veterinary expenses totalled $1,223.47. The applicants were entitled to that sum as compensation. The third item of loss claimed was “future ongoing costs.”  The pup was treated, and needs to continue to be treated, with probiotics which, said Ms Besnard, cost $1.15 per day.  Taking the life expectancy of the boxer pup as 7 years, she made a calculation of $2,938.25 for the cost of probiotics for those 7 years.  The pup also needs special food for which the applicants claimed $1,460.00 for one year.  The trouble with claims of that sort is that they are speculative and take no account of risks; it is possible that by misadventure the pup might die tomorrow.  I allowed $115.00 as the cost of probiotics for about 3 months.: Blanchard v McDowall (Civil Claims) [2021[ VCAT 757.

•  Staffordshire bull terrier -  entropion and demodectic mange 7 months after purchase - "The appellant purchased Emily for $1,800 from the respondent on or about 9 August 2012, intending to use her as a show dog and for breeding purposes. Those intentions and requirements were communicated to the respondent on 7 August 2012. ... On 4 March 2013 Emily was found to be suffering from entropion and demodectic mange. In a second expert opinion obtained by the appellant, the diagnosis of entropion was confirmed, and in the opinion of that reporter, the defect is congenital. Accordingly the animal is unsuitable for breeding purposes, and while surgery would probably correct the defect, showing her competitively is strongly discouraged. Although neither of these reports is in the form required by rules of practice[5] they were apparently treated as evidence without objection on that ground. They are not contradicted by any competent witness. ... In the event of non-compliance with a section 55 “guarantee” the consumer has a statutory cause of action against the supplier. As the statutory term “guarantee” suggests, liability for non-compliance is strict and objective. It is not to the point to say (as the primary tribunal seems to have held) that an already-existing fault was detected after the sale occurred. Suppliers may be forgiven for thinking that the bias of the law is unduly populist, but any such argument must be addressed to legislators, not to the courts. The appellant’s uncontradicted expert evidence shows that the non-compliance amounts to a ”major failure”, and in that event the consumer may elect to retain the goods and sue for any reduction in their value below the price paid. That is the appellant’s choice. The respondent’s case depends not on section 259(2) of the ACL (as held by the primary tribunal), but on a submission that the defect was non-genetic, or if genetic, was undetectable and unknown to her at all material times. The respondent tendered statutory declarations and veterinary certificates by the owners of Emily’s parents, denying that they had the defects complained of, but this material does not dispose of the evidence of the appellant’s experts, which is specific to Emily. Similarly inconclusive is the appellant’s claim of defects found in one of Emily’s siblings, some 10 weeks after Emily’s purchase. The only direct evidence of a pre-purchase defect in Emily is to be found in the opinion of Dr Bernays, a registered specialist with eighteen years’ experience in the field of veterinary ophthalmology, who has actually treated Emily. His opinion discounts other possible causes of her entropion, namely muscular spasm or physical injury, in favour of the genetic explanation. The primary tribunal’s implicit preference for some unspecified post-sale cause simply lacks evidentiary support, and is therefore an error of law. The appropriate ground of appeal is not merely arguable[23], but palpable. It follows that leave to appeal should be granted and the appeal allowed. The quantum claimed is not challenged, and appears reasonable, having regard to the significantly reduced value of the animal, and to expenses arising out of, or in connection with the purchase.": Swiatek v Sanheaven Staffordshires [2013] QCATA 300.

• Claimed dismissed - lack of evidence proving "pure breed", absence of medical diagnosis, no expert evidence that animal could not be trained - evidentiary burden not proven: Levenah v McGrath t/as Tamaruke [2022] NSWCATAP 243.

• alleged Parvovirus - failed on evidence - refund in exhange for return of ownership agreed, but puchasers changed their minds, failed to return dog and dog died - "On 23 November 2013 Mr Maslij and Ms Macdonald (“the purchasers”) purchased an 8 week old male Japanese Spitz born 25 September 2013 from dog breeders, Messrs M, R and S Attard (who trade as “Chevromist”). The dog died at about 5.00pm on 27 November 2013. In proceeding C8214/2013 the purchasers sue Chevromist for damages of $8,000.00, made up of veterinarian’s fees, wasted expenses such as the purchase price of goods intended for the dog, and stress. In proceeding C1230/2014 Chevromist sues the purchasers for $2,636.00: Chevromist had paid that sum – which included a refund of the purchase price – to the purchasers and now alleges that it was induced to do so by misrepresentations. At the hearing Chevromist admitted the quantum of the veterinarian’s fees and wasted expenses claimed by the purchasers, rather than calling for strict proof of those items. Accordingly, save for the quantum of any general damages for stress, proceeding C8214/2013 was fought on the issue of liability. I heard the evidence of Sally-Anne Macdonald, mother of Melanie Macdonald; the purchasers’ witness John De Fazio; and Michael and Robert Attard of Chevromist. I have also considered the attachments to the Applications in both proceedings; veterinary clinic notes of the two veterinarians engaged by the purchasers namely Dr Christine Hou of Ringwood East Vetcare and Animal Emergency Centre;  and the veterinarian engaged by Chevromist, Dr Michael R Beattie. Finally, Dr Beattie’s report of 11 March 2014 being a commentary on the documents of the purchasers’ veterinarians, as distinct from arising from an examination of the dog during its illness, I also considered an Affidavit of Dr Hou in reply to Dr Beattie’s report. The purchasers’ essential proposition is that the dog must have been sold with Canine Parvovirus, so that it amounted to defective goods within the meaning of the Australian Consumer Law (Victoria) (“ACL”). The purchasers alluded to the relevant provisions in the hearing, saying that they would not have bought the dog had they known it was sick. This was a reference to the definition of “acceptable quality” in section 54(2) of the ACL [2]. They also referred to the ACL in their letter (email) of demand to Chevromist. Chevromist’s position is that, on the balance of probabilities, the dog did not have Parvovirus at all; that any number of things are capable of killing a young dog and that it is more likely than not that a factor introduced by the purchasers did so. As applicants in proceeding C8214/2013, the purchasers have the burden of proof. ... On 12 November 2013 at 11.32am the contract for the sale of the dog was negotiated. By an email of that date and time, Chevromist advised the purchasers that the dog was ‘on hold’ and was guaranteed to be delivered provided payment was made within 2 days. Enclosed in the email was a document entitled “Health Guarantee”. Relevantly, clause 3 on page 1 said “Chevromist Kennels guarantees the puppy against the following 3 fatal viruses for 72 hours. These include Distemper, Parvovirus and Hepatitus”. .... The purchasers rely on the Health Guarantee, and on the ACL. The Health Guarantee is an express contract between the purchasers and Chevromist, which affords certain rights. It is a matter of determining whether the purchasers fall withing the terms of the Health Guarantee. It is not unusual for the ACL to provide consumers with greater rights than those set out in express contracts, vendors’ warranties and the like, but again in that context it is a matter of determining whether the purchasers fall within the ACL. The main issue of fact, to which the law will apply, is whether or not the dog had Parvovirus when it left Chevromist’s possession on 23 November 2013. The purchasers have the burden of proving, on the balance of probabilities, that it did. They cannot meet that burden because – a. The dog had been bred by professional breeders who gave the dog a C3 injection on 7 November 2013, and had a health check performed by a veterinarian on 21 November 2013, which showed that the dog was healthy. b. Against this, the purchasers introduced the dog to un-immunised adult dogs when it was only 8 weeks of age. Whilst it would be a matter of general knowledge that a new puppy should not be exposed to such dogs until it received a further C3 injection, and whilst it is possible that the purchasers were advised of this during both the general discussion with Chevromist on 23 November 2013 and at the free pet check on 23 November 2013, they were clearly advised against doing this in the 22 page information document [9]. If the dog contracted parvovirus, it is more likely than not that the dog contracted it from those un-immunised adult dogs. c. Further, it is not proven that the dog died of Parvovirus. The C3 injection causes the body to produce an antigen. For 3 weeks after the injection, a superficial test which reads ‘positive’ will not distinguish between the virus and the antigen. Both Dr Beattie and Dr Hou acknowledge the possibility of such a ‘false positive’. AEC did not perform a test for Parvovirus [10]. Ringwood East Vetcare performed such a test on 25 November 2013 [11]. Remarkably, Dr Hou states that there cannot have been a ‘false positive’ in this case, because her test was carried out 3.5 weeks after the C3 injection – but when one looks at the dates of the C3 injection and Dr Hou’s test, only 18 days had elapsed between the C3 injection and Dr Hou’s test, which is less than three weeks. The Health Guarantee is an express contract between the purchasers and Chevromist, and it affords the purchasers rights, according to its terms. Clause 1 required the purchasers to have the dog examined by a licensed veterinarian within 2 days of purchase, and the purchasers complied with that requirement. Clause 2 required the purchasers to inform Chevromist “immediately” about the test results. One cannot read the word “immediately” literally. In my view it means “within a reasonable time”, and that length of time can vary according to the circumstances. If for example the dog was said by the veterinarian to be healthy, the purchaser could wait until 2 days after purchase to notify Chevromist. If however an illness was detected, the purchaser would be obliged to tell Chevromist very quickly. This is because the Health Guarantee contemplates Chevromist having a significant role if the dog is ill, and it would be deprived of that role if the purchaser failed to notify Chevromist of the illness. This interpretation of clause 2 is supported by the closing sentences of the clause, which say that if the purchaser learns that there is a “health issue” and does not email the veterinarian’s report to Chevromist, the Guarantee will be cancelled. Whilst it may be arguable that those closing sentences are bad in law, they do distinguish between the purchaser’s obligations when the dog is found to be healthy, and when it is not. Clause 3 states that “Chevromist Kennels guarantees the puppy against the following 3 fatal viruses for 72 hours. These include Distemper, Parvovirus and Hepatitis”. Clearly, the proper construction of this clause is that the purchaser is protected against the possibility of buying a diseased dog. It does not mean, for example, that if the purchaser receives the dog in a healthy condition, and then exposes it to Distemper, Parvovirus or Hepatitis within 72 hours, that the Guarantee applies. The rights afforded to the purchaser by the Health Guarantee are not that the purchaser controls the treatment and is indemnified for the veterinarian’s fees. Instead, clause 5 entitles Chevromist to have its own veterinarian examine the dog, and it is implied by this clause that Chevromist will use that report to consider whether the Guarantee applies; clause 9 expressly states that Chevromist “will not be responsible for veterinarian fees or costs”; and clause 7 states that “Chevromist Kennels will provide a replacement puppy of equivalent value as soon as availability permits within a year”. In the case before me, the purchasers did not bring themselves within the terms of the Health Guarantee. It is not a point against them that they did not immediately notify Chevromist of the result of the “free pet check” on 23 November 2013. However, by exposing the dog to Sally-Anne Macdonald’s adult dogs they took the dog outside of clause 3; they were not entitled under clauses 5 and 9 to seek payment of their veterinarian’s fees; and had they come within the terms of the Health Guarantee they did not seek a replacement dog. It follows that the purchasers have no rights, enforceable in these proceedings, under the Health Guarantee. In terms of the ACL, I am not satisfied on the evidence that the dog had Parvovirus at the time of purchase. That is, the dog was of “acceptable quality” within the meaning of section 54 of the ACL. On the evidence, it is more likely than not that events after the purchase caused the dog’s illness. It follows that the purchasers have no claim under the ACL. Chevromist put its claim as highly as one of deliberate misrepresentation, and the hearing was notable for the vehemence of the parties’ allegations against each other. In my view those allegations are unhelpful and unnecessary. The fact is that on Monday 25 November 2013 the purchasers and Chevromist agreed that Chevromist would refund the purchase price of $1,295.00 and reimburse the veterinarians’ fees of $600.00 and $741.00, and that the purchasers would return ownership of the dog to Chevromist. The purchasers even signed the document to put this into effect, before changing their minds. The purchasers allowed Chevromist to pay the money in performance of its side of the bargain, but by failing to transfer the dog to Chevromist they breached their side of it. It follows that Chevromist has paid $2,636.00 for a consideration which has wholly failed, and that it is entitled to be repaid its money.": Maslij v Attard trading as Chevromist (Civil Claims) [2014] VCAT 719.

• Cavoodle - Gastroenteritis on bring puppy home - vet examined dog 4 days after purchase - claim rejected - no evidence that dog had gastro at time of supply, had recovered, had no incurable diseases and no ongoing issues: "In April 2018, the applicant (customer) purchased a Cavoodle male puppy (puppy) from the respondent (pet shop). It transpires that on bringing the puppy home, the puppy had gastroenteritis. Four days later, after having the puppy examined by her vet, the customer returned the puppy to the pet shop. The pet shop refunded 75% of the purchase price. The customer claims that the pet shop failed to comply with the consumer guarantees in the Australian Consumer Law. The customer alleges that the puppy was not of acceptable quality because he became unwell after purchase. The customer claims an additional refund of $1,064.35 made up of the following. First, the difference between the purchase price of the puppy and the refund she received. Second, a refund of the cost of medications not used and the cost of shampoo and conditioner. The pet shop denies any liability. It says it has complied with the consumer guarantees, and that the puppy was of acceptable quality at the time of sale. It says it has refunded the customer 75% of the purchase price, because she had changed her mind. The customer was self-represented and gave evidence. She relied on a certificate, and a written statement from her vet Dr Helen Clyne. Ms Sun, director of the company which owns the pet shop, gave evidence for the pet shop. The pet shop also relied on a certificate from its vet, Dr Amanda Ling. The issue is whether the puppy was of acceptable quality at the time of purchase. On 13 April 2018 the customer purchased the puppy, various medications and other items recommended by the pet shop. The customer paid a total of $3,732.47, of which $3,299 was for the puppy. ... On the Friday, after taking the puppy home and feeding it, the puppy started vomiting. On the Saturday, the customer gave the puppy worm tablets, following the instructions in the puppy care sheet. The customer telephoned Ms Sun, and told her that since arriving home the puppy had been vomiting. Ms Sun said this was common and caused by stress in moving to a new environment. On the Monday the customer’s vet, Dr Helen Clyne examined the puppy. She filled out the certificate of good health. The certificate stated that the puppy exhibited clinical signs of vomiting and diarrhoea and that these signs were consistent with gastroenteritis, the cause of which was unknown. Dr Clyne requested an additional extension of 15 days in which the customer could commit to purchase the puppy, so that the puppy could have the necessary treatment and/or observation. The customer relied on a written statement of Dr Helen Clyne dated 4 June 2018 in which Dr Clyne set out her recollections of her examination of the puppy in April 2018. Dr Clyne stated that the puppy, on presentation was lean and somewhat depressed and a bit uncomfortable on palpitation of his cranial abdomen. Dr Clyne stated the puppy was young and small and had a history of blood in his faeces and ongoing vomiting. The customer said she gave Dr Clyne the history of the puppy. Dr Clyne stated that, as it was uncertain whether the puppy would get better or worse over the next few days (at the time of examination), she recommended that the customer go back to the pet shop’s vet for treatment, and diagnostic tests as needed, as the puppy was still under a health guarantee. In her June statement, Dr Clyne stated that at the time she saw the puppy, she believed his condition was serious enough to warrant a full refund. She stated that the fact that the puppy had subsequently recovered was irrelevant. I find this statement to be inconsistent with Dr Clyne’s observations, made at the time of her examination of the puppy on 16 April 2018. The customer said she showed Dr Clyne the Contract when she took the puppy to her for examination. The customer said after leaving Dr Clyne, the puppy continued to vomit and had blood in its diarrhoea. She said the puppy was unwell when she returned him to the pet shop. The pet shop was not open on the Monday so the customer returned the puppy to the pet shop on the Tuesday. The customer requested a full refund of the purchase price and other items. Ms Sun said she was happy to extend the period of the customer’s commitment to purchase, to 15 days, but that the customer wanted a full refund on that day. Ms Sun refunded 75% of the purchase price because, in her opinion, the customer had changed her mind about the purchase. Ms Sun said she put the puppy in an isolation room where it was observed eating and drinking and that the puppy appeared to be healthy. On the Thursday, the pet shop took the puppy to the South-Eastern Animal Hospital. Ms Sun relied on a health certificate dated 16 June 2018, signed by the pet shop’s vet, Dr Amanda Ling, of South-Eastern Animal Hospital. Dr Ling stated in the certificate, that on 19 April 2018, two days after the customer returned the puppy, the puppy was examined and no health issues were identified. The puppy stayed in hospital for monitoring and was discharged on 21 April 2018. Dr Ling stated that during this time the puppy did not show any signs of illness. On 21 April 2018, the day the puppy left South-Eastern Animal Hospital, the pet shop sold the puppy to another customer. The new owner has not reported any health issues with the puppy since they purchased it. ... It is not disputed that the supply of the puppy was in trade or commerce. The Australian Consumer Law defines goods as including animals [s 4]. Here, the puppy is defined as goods. The test is an objective test of reasonable fitness.[2] Whether goods are of acceptable quality is determined when the goods are supplied to the consumer. Goods are to be regarded as of acceptable quality if they are as fit as a reasonable consumer, fully acquainted with their state and condition, would regard as acceptable. Here, acceptability includes consideration of whether the puppy was free from defects. I reject the customer’s submission that she was entitled to a refund of the purchase price because the puppy was diagnosed with gastroenteritis three days after purchase. I find that the puppy was free from defects at the time of supply. I make the following findings on the undisputed evidence. After the customer took the puppy home on the day of purchase, he had diarrhoea and vomiting. The symptoms continued over the weekend. The customer gave the puppy worm tablets when it was already unwell. On the Monday Dr Clyne diagnosed the puppy as having gastroenteritis. She considered the puppy did not have an incurable disease. Dr Clyne recommended the puppy be returned to the pet shop for treatment and diagnostic tests if necessary, as the puppy was still under a health guarantee. Dr Clyne completed the necessary paperwork so the customer could obtain an extension of 15 days before committing to the purchase. She did this so the puppy could have the necessary treatment and/or be observed. The pet shop observed the puppy in an isolation area for two days and found the puppy to be healthy. Two days later the pet shop’s vet examined and observed the puppy between 19 and 21 April 2018. The vet found the puppy to be in good health. I find Dr Clyne’s statement dated 4 June 2018, in so far as she stated that the customer was entitled to a refund when she diagnosed gastroenteritis, to be inconsistent with her original assessment and recommendations. On 16 April 2018 Dr Clyne recommended that the puppy be returned for observation, testing if necessary, and treatment. She completed the necessary paperwork and the customer returned the puppy for observation. Any suggestion of a return and refund at that stage, is contrary to Dr Clyne’s recommendations at that time. I find that the pet shop and South-Eastern Animal Hospital observed the puppy over 5 days and observed the puppy to be healthy. I find that although the puppy became ill with gastroenteritis after purchase, he subsequently recovered. I find that as the cause was unknown it could have been for a number of reasons, including his change to a new home and environment. I find that the puppy’s illness did not amount to a major failure under the Australian Consumer Law.[4] I find that the puppy recovered fully and after a few days returned to good health. Having heard and reviewed the evidence, I am satisfied that the puppy was of acceptable quality at the time of purchase. I must therefore dismiss the customer’s claim.": Javaherdoost v Yuan Hang Pty Ltd (Civil Claims) [2018] VCAT 975.

• Alleged down syndrome - unsuccessful - precise cause of dog condition not required for finding that dog was unhealthy - "This case involves a female Blue Staffordshire Bull Terrier which Mrs Gardner and Mr Gardner bought from Mrs James on 8 April 2014. The Gardners came to the Tribunal seeking damages because the dog, which they have called Willow, is not healthy. Mrs Gardner gave evidence that the dog “not normal”, “special”, as if she had Down Syndrome. The dog was withdrawn from dog school because of its condition. The Gardners sought damages from Mrs James of $6316.89, including a refund of the purchase price paid for the dog of $1700.00, veterinary fees and associated expenses up to 10 September 2014 of $4572.90, and the cost of purchase of a refractometer of $43.99. It is not clear what is wrong with the dog.  Her treating veterinary practitioner Dr Kate Heading, considers she may have a congenital brain condition affecting a part of her brain known as the corpus callosum. Dr Heading first suggested this in a report dated 12 September 2014 she prepared after the dog had been hospitalised. Dr Heading confirmed this view in reports dated 20 October 2014 and 20 November 2014. In each of these reports, she said that the diagnosis could not be confirmed without an MRI. Mrs Gardner said that an MRI would cost $3000.00 to carry out and they could not afford this. She acknowledged Dr Heading’s opinion was only a theory but said that it was “working”. In these circumstances, I accept that the dog Willow is not healthy but that the precise cause has not been established with sufficient certainty for me to make a finding regarding that cause.  However, a finding on that matter is not critical to the disposition of the case. ... Mrs Gardner contended there is a breach of the guarantee as to acceptable quality because the dog is not healthy. Mrs James disputes that and says that the dog was healthy at least when it was sold. I was referred to the ‘Homestead Blue’ Facebook page by Mrs James and it does not reveal anything about the dog’s health until 25 April 2014 when a skin condition is mentioned. Evidence of the Facebook page suggests the dog was healthy, if small, at the time of purchase. Mrs Gardner conceded the Facebook page did not establish the dog’s ill health but said the Facebook page was irrelevant as it was not the place she raised with Mrs James the dog’s health. Mrs Gardner said she made many phone calls, in excess of fifty, to Mrs James. Mrs James contested this and said she received two calls early on, and perhaps a third. Mrs Gardner said she sent many text messages, however was unable to prove this as she now had a new telephone and had lost her earlier text messages. Given this contested evidence, I am not satisfied about the health of the dog at the time of sale and make no finding that there has been a breach of the guarantee of acceptable quality. This was because it was agreed that on 29 June 2014 Mrs James offered to take the dog back. In particular, in a text message exchange referred to in the hearing, Mrs James offered to return $1600.00 and take the dog back, but Mrs Gardner rejected this offer. This exchange determined the case. I raised two points about it. First, the decision by the Gardners to keep the dog irrespective of the alleged serious health issues extinguished the liability of Mrs James, if any, for future veterinary fees. It also extinguished the right to claim for a return of the contract sum. I therefore dismissed the claim.": Gardner v James (Civil Claims) [2015] VCAT 169.

• Misdescription of horse sold - alleged not gelding, but behaved like a stallion - found, on expert evidence, that horse was not a gelding and not acceptable quality and did not correspond with description - also M+DC: "The claim by the plaintiff, Ms Barton, a competitive dressage rider, is for loss and damage suffered following the purchase by her from the defendants, Mr and Mrs Bridgeman (the Bridgemans), of a horse named “Silk Bridge Dante” (Dante) for the purchase price of $17,000. The Bridgemans carried on a business of supplying, marketing and distributing horses for sale in Australia in partnership under the registered trading name of “Silk Bridge Equine Services”. Ms Barton alleges that Dante was not a gelding, as advertised by the Bridgemans, but instead had testicular matter and behaved like a stallion. ... In making any assessment as to whether the goods are of “acceptable quality”, Ms Barton alleged that Dante, contrary to the obligation in s 54, failed to comply with the guarantee in that Dante was “not” fit for all the purposes for which goods of that kind are commonly supplied or “free from defects” because Dante: (a)        acts and behaves, and will act and behave, like a stallion rather than acting and behaving like a gelding; (b)        further or alternatively, possessed a defect which meant that Dante would not act or behave like a gelding. The evidence of Dr Fraser, relying on the results of the pathology tests and the ultrasound examination, is that Dante has testicular tissue and is therefore not a gelding.  It was not suggested that the test results were unreliable.  Relying on the test results, Dr Lovell agreed with the conclusions of Dr Fraser. The defendants admitted that they had represented to Ms Barton that Dante was a gelding and admitted that Ms Barton had informed them that she wanted a horse that was a gelding, was suitable for dressage training and had a calm temperament. Dr Fraser stated that castration was performed to improve tractability of male horses and was commonly performed in companion, riding and performance horses.  Dr Fraser stated that the vast majority of male dressage horses were castrated. In her report, Dr Fraser stated that “Most geldings are more ‘mellow’ than stallions” and are easier to train as they are less distracted by other horses; albeit “castration does not eliminate general misbehaviour.” Doctors Fraser and Lovell stated that Dante exhibited stallion-like behaviours and needed to be housed separated from mares and other stallions. The evidence was that Dante did not always have a calm temperament; in training he had bucked off Ms Barton and had reared when being ridden by Mr Sheridan and was more distracted by other horses including squealing and striking with one leg at other horses. The evidence does not support the denial by the Bridgemans of the allegation that the horse failed to comply with the guarantee and the allegation by them that Dante is not affected by the alleged castration failure, does not act like a stallion, and is not defective. Given that Dante was represented to be a gelding and was being purchased as a gelding for use as a dressage horse, based on the evidence of Drs Fraser and Lovell, the presence of the testicular tissue must be regarded as a defect and is such that Dante is not fit for the purpose for which he was acquired. In my view, as Dante is not a gelding, the guarantee as to “acceptable quality” was not complied with. The second guarantee relied upon is the guarantee, imposed by s 56 of the ACL, that goods supplied by description “correspond with the description.” The Bridgemans admit that Dante was sold as a gelding, but again deny that the quality of the horse is affected by the castration failure.  Contrary to the evidence, the Bridgemans assert that the horse does not act like a stallion and, on that basis, is not defective.  For the reasons already stated, that position is not accepted.  Clearly, Dante did not correspond with the description of being a gelding. Lastly, the plaintiff relies on the giving of an express warranty in accordance with s 59 of the ACL. Section 59(2) provides: “If: (a)        a person supplies, in trade or commerce, goods to a consumer; and (b)        the supply does not occur by way of sale by auction; there is a guarantee that the manufacturer of the goods will comply with any express warranty given or made by the supplier in relation to the goods.” The Bridgemans admit that they warranted that Dante was a gelding but do not admit that they failed to comply with the warranty.  For the reasons already stated, Dante is not a gelding and clearly did not comply with the warranty given. Having found that the three guarantees have not been complied with, it is necessary to consider the relief to which Ms Barton is entitled. The remedial provisions applicable if there is a failure to comply with a consumer guarantee are found in Part 5-4 (Sections 259-277) of the ACL. The remedies available to a consumer in respect of a failure to comply with a guarantee depend on whether the failure is a “major failure”. ... On the basis of the expert evidence, Dante is not a gelding and departs significantly from the description by which Dante was sold and is substantially unfit for the purpose for which he was sold, and that could not easily be remedied. Further, the evidence of Ms Barton, which evidence I accept, is that she would not have acquired Dante if she had known Dante was not a gelding, and a reasonable consumer fully acquainted with the fact that Dante was not a gelding would not have acquired the horse either. Accordingly, within the provisions of s 260, Ms Barton has satisfied her onus of establishing that Dante’s condition of not being a gelding is a “major failure”. ... In the event that a guarantee cannot be remedied and is a major failure, s 259(3) allows a consumer to, subject to s 262, notify the supplier that the consumer rejects the goods, or, by action recover compensation for any reduction in the value of the goods below the price paid by the consumer. By Facebook message on 14 May 2016, Ms Barton notified the Bridgemans of her wish to return the horse and obtain a refund.  Ms Barton referred to the results of the hormone testing of Dante and of the fact that Dante was a cryptorchid and not a gelding. By Facebook message on 14 May 2016, that rejection was initially accepted by the Bridgemans.  Ms Barton was told to bring Dante back for a refund and was asked whether she wanted a bank transfer or cash. Subsequently, by Facebook message from Ms Barton on 16 May 2016, Ms Barton notified the Bridgemans that Dante had been injured while at the trainers.  By email dated 24 May 2016, the Bridgemans withdrew their agreement for the return of Dante stating that Dante had been injured and was damaged and said they were not obliged to provide a refund. ... I find that, on the balance of probabilities, the damage to Dante after delivery was as a result of his state or condition at the time of supply.  If it were necessary to resort to the onus of proof, I would have found that the onus of proof on the issue was on the Bridgemans and that the Bridgemans certainly did not prove to the contrary. Accordingly, I am not satisfied that Ms Barton is disentitled by the existence of any matters in s 262 from rejecting the horse under s 259. ... Ordinarily, it would be expected that the goods would be returned.  In this case, however, given the nature of the goods, absent an agreement by the Bridgemans to accept the return of Dante, it is impossible to see how Dante could be returned.  It is absurd to suggest, as submitted by counsel for the Bridgemans, that Ms Barton could have simply delivered Dante to the Bridgemans’ property and tied Dante to a fence or tree at that property. Nevertheless, the fact is that the horse was not returned as required by s 263(2) and the provisions contained in s 262 for excusing a failure to return are not very wide and certainly not wide enough to cover a living animal; particularly a horse. What follows as to the property in Dante from the inability to comply with s 263(2) is not clearly dealt with in the section. One possibility is that the right in s 263(6) stands independently of the obligation to return the goods, with the consequence that the right to revest the property referred to in s 263(6) is not lost to a consumer merely by reason of the failure to return the goods. The other possibility is that the section should be read as one provision: one that entitles a consumer to return the goods but only revests the property on the return of the goods; albeit from the date of notification of rejection, not the date on which the goods are returned. Neither party made submissions on the effect of s 263(6) and how that operated with the rest of s 263 in circumstances where the horse had not been returned as s 263(2) required. There is no justification in my view for reading down the plain words of s 259 (which allows a consumer to reject goods in the event of a major failure) and s 263(6) (which provides the consequences of rejecting the goods). Section 263 certainly is not worded in such a way as to indicate that any of its rights or obligations are dependent on each other. Section 263(6) is plainly capable of existing as a statement as to the consequence of a rejection of the goods; and not dependant on return of the goods or refund of the purchase price. Indeed, revestiture is clearly not dependant on return of the goods: the subsection specifically states that property revests on the rejection (not return of the goods). The consequence is that this defence fails. ... Mr Forde submitted, on behalf of the Bridgemans, that in the exercise of the discretionary power given to the court under s 237, it would be unjust for the court to order the return of the horse and a refund of the purchase price. He submitted that as the horse had been damaged after delivery, Ms Barton had lost any entitlement to damages under s 259, and the court should not give under s 237 something to which the plaintiff was not entitled under s 259. It would seem that submission extended to all loss and damage claimed as a consequence of the breach. That is an unlikely construction of the ACL, and no authority, either dealing with the ACL or statutory construction in general, was cited in support of it. Section 259 was inserted in 2010, along with other consumer protection provisions, to give a new right of rejection of the goods. Even if the consumer does not have that right, the consumer would still have a right to damages under s 259(4) for a failure to comply with a guarantee which was not a major failure under s 259(2). There is certainly no basis to read down the rights granted in s 237. In any event, in this case, for reasons which will become apparent, I have found that Ms Barton was entitled to exercise the power granted under s 259(3). The Bridgemans supplied a horse in breach of the various guarantees stated in the ACL. Ms Barton has a horse which has a defect, which she cannot use for the purpose which such horses are commonly supplied, which is not reasonably fit for the purpose for which it was purchased and which is inconsistent with the description provided of the horse by the suppliers. Because of the conduct of the Bridgemans, Ms Barton has suffered loss and damage. Section 237 requires that an order made under it compensate Ms Barton for that loss or damage. The compensation should include not only recovery of the expenses incurred by Ms Barton in caring for the horse after its purchase, but also the purchase price; given that the Bridgemans have supplied and left Ms Barton with a horse which has no value to her. Indeed, as I will elaborate later, the evidence suggests that this horse has no value at all. Orders should be made so as to compensate Ms Barton in an amount $17,000 being the purchase price paid to acquire Dante and an amount of $22,860.44 for loss and damage suffered as a result of the failure of the guarantees. ... If an order had not been made under s 237, Ms Barton would be entitled to compensatory damages under s 259(4) in the amount of $22,860.44. ... The Bridgemans deny that the representations were misleading or false because they had the horse castrated by Mr Scantlebury, a qualified veterinarian.  They did not call Mr Scantlebury to give evidence about the operation. The expert evidence given by Dr Fraser referred to the ultrasound examination which showed the horse had testicular tissue (probably a complete testes) and levels of testosterone (and other pathology results) consistent with that fact.  Further, Dante achieved an erection during interplay with a mare. The castration operation involved the surgical opening of the scrotum and the removal of the two testes.  In this case, there was no evidence that the tissue removed from the scrotum were testes. Dr Fraser considered that it was very unlikely that Dante had three testicles and considered it more likely that the two testicles had not descended into the scrotum by the time of the operation.  The inevitable conclusion is that Dante was not castrated and is not a gelding. Mr Bridgman did more than request that Dante be castrated.  He was an enthusiastic supporter of the fact that the operation had been performed and performed properly.  Yet, no tests were done on the flesh or structures removed and it would not seem uncommon for these operations not to be successful.  The Bridgemans were in the business of supplying, marketing and distributing horses and at no time did they seek to qualify any representation by reference to what they were simply told.  In any event, by the time Mr Bridgman was talking to Ms Barton he had evidently noticed some behaviours inconsistent with that of Dante being a gelding. The representations made by the Bridgmans were clearly false and misleading.": Barton v Bridgeman & Anor [2020] QDC 16.

• Allegation of misrepresentations in relation to horse's nature, temperament and suitability - failed  - not in "trade or commerce" - principles of negligent misstatement discussed - case not made out on evidence: Schey v Cooper (Civil Claims) [2020] VCAT 1055.

• Stud Rules: "As the breeder responsible for the mares, it was the defendant’s responsibility to arrange for DNA testing and submit mare returns.  It was the defendant’s responsibility to submit the mare returns on time so as to avoid incurring late return or other fees payable to the Australian Stud Book.": Peter Wilson trading as Sutket Farm v Umilo Bria [2020] VCC 853, [62].

[#2] Breeder: Consumer Guarantees Act 1993 (NZ): 

• Latent joint issues and diagnosed hip dysplasia at 6.5 months old - "Animals  are “goods” of a rather different nature than the sort of consumer goods that are often the focus of these sections of the CGA. Even so, it is often the case that a hereditary condition that will have serious effects on the  animal ’s current or future health will fall under the definition of a “hidden defect” as mentioned in section 7 “Meaning of acceptable quality”. Many breeds are known to have a risk of particular genetic conditions and it may be that testing and providing information on the degree of risk for a particular  animal  and its parents would provide consumers with the information they need to make an informed decision about what level of risk they consider acceptable. For the particular conditions that T developed in his hips and elbows, Penn-Hipp reports are available and TX notes that no such testing information was provided to them. SM has since had T's father Penn-Hipp tested and he provided the report in evidence which shows that the father has a moderate (high-end) risk of hip conformation issues, marginally higher than average for the breed. He says he now gets all his males and females tested for breeding. As no Penn-Hipp reports were obtained by SM for T's mother or father at the time, it was not known what the level of risk was for their litters to develop conformation problems, which are in part hereditary problems, and therefore no representation was made to TX and her partner about the level of risk their puppy might have of developing conformation problems (which are apparently relatively common in this breed). Given this, and taking into account the price paid for T of $3000.00, and the evidence provided by TX of other puppies bred by SM having similar problems, I find that there has been a failure of guarantee of acceptable quality in relation to T and that given the extent of T's problems the failure is of substantial character (as per section 21 of the CGA)." - Tribunal prepared to award refund plus uninsured vet costs: TX v SM [2021] NZDT 1574, [11]-[16] (5 August 2021) <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2021/1574.html>. 

• (failed where no evidence of issues): "Very different horses are described by XN before the sale and by CN after the sale. To succeed in her cause of action CN has to prove that BB had vices, was not easy to ride or good with other horses when in XN’s care such that she misrepresented him. There was no persuasive evidence of that.": CN v XN [2015] NZDT 833 (22 September 2015) <https://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2015/833.html>.

• vet check 3 weeks after purchase - Labrador - pain on exam - diagnosed Canine Hip Dysplasia - breeder in early stage of business (see facts discussed) - CHD present at time of sale - "CHD is largely a genetic, inherited condition. Environmental factors will worsen a genetically predisposed individual. A dog without the genes for CHD is very unlikely to develop CHD. 16. QN suggested that perhaps something had occurred which gave rise to the CHD in the time that DU had DJ, but he did not identify any particular cause or event. 17. It was clear that DU is a careful and caring pet owner, and she was not aware of any adverse events which had occurred with DJ, such as a fall or being dropped. Two common events which create the expression of CHD are overfeeding or a traumatic injury. The report from the vet on 7 February 2023 records normal activity levels, including not leaving the property, as well as gentle treatment at home. It also recorded good muscle condition and there was no reference to DJ being too heavy or showing unusually fast growth which might relate to overfeeding and be a causative event. 18. On the balance of probabilities, I find that DJ's CHD was present at time of sale. ... The onus is on DU to satisfy the Tribunal that DJ’s CHD amounts to a failure to meet the standard of acceptable quality, having regard to what a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, and that takes into account the nature of the goods. 27. I am not satisfied that she has been able to show this before the Tribunal. A reasonably informed consumer purchasing a Labrador puppy would be aware that CHD is a known risk in the breed. Although DU has established that DJ has CHD, given the evidence about his DI score which is better than average for the breed, the information about the prevalence of this condition within the Labrador breed, and the fact DJ’s parents do not have evident issues with their hips, I am unable to conclude the hip dysplasia in DJ amounts to a failure of acceptable quality. 28. QN has shown that he and his wife were aware of the possible risk of CHD and they took steps in terms of selection of the breeding dogs and the care of the puppies to ensure the quality of the puppies they were selling. DJ was checked at the time of sale and no known problems were identified. DJ has a DI score that is better than the average Labrador, and although he has gone on to exhibit CHD as a young puppy, this is simply an unfortunate outcome within the known characteristics of the Labrador breed. 29. I therefore conclude that DJ was a Labrador of acceptable quality when he was sold. ... Although CHD is a genetic condition, it is also very prevalent within the breed and to be a breeding fault would need the dog to have a DI at a higher than average level. 37. As DJ scored better than average, it is not established that his CHD was a breeding fault within the meaning of the agreement between the parties.": DU v QN [2023] NZDT 434 (4 September 2023) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2023/434.html>. 

• Horse developed bucking habit after purchase - "Ms D filed a claim seeking a refund of the purchase price on the basis of a bucking habit that the horse had developed. Ms D also sought costs associated with the transport and upkeep of the pony. Ms M defended the claim on the grounds that Ms D had waited too long after the purchase to raise any concerns, that she had been advised of a previous tendency to buck, that she had caused an escalation in the issue by delaying any remedial work, and that Ms D had not viewed the horse, or properly explained to Ms M the purpose for which the pony was sought. ... I have had regard to the argument in this case put forward by Ms M that the bucking behaviour was minimal in the past, has been allowed to occur under Ms D’s management, and then got worse through mismanagement and delays in addressing the matter. On the evidence presented, I was not able to make a finding that Ms D was responsible, nor her daughter. Ms D appeared to have a good support network of capable instructors and is an experienced horse owner herself. I accept that A has taken advantage of Ms D’s daughter, who is only a novice rider. A picked up on this within the first few weeks of ownership, putting this into the category explained above by Ms Wilson of an escalating fault. The difficulty in this case for Ms M is that she advertised A as suitable as a school mistress (albeit not for a beginner). I do not accept that a pony that takes advantage of a novice rider in this manner is a school mistress. Whilst the bucking problem has worsened, the propensity clearly existed for A to take advantage of a rider, and this is not through any fault of Ms D. I am satisfied from the previous record of bucking, and the speed with which this started to present itself after the pony arrived, that this propensity existed at the time of sale and is not as a result of poor feed, work, or gear management. For these reasons, I am satisfied that the pony was misdescribed in the advertisement. ... Once again, as Ms M was an agent in trade, selling on behalf, she guaranteed that the pony was of acceptable quality and fit for purpose as those terms are defined in the  Consumer Guarantees Act  1993. For all the reasons set out above, I am satisfied that the pony was not of acceptable quality. A reasonable consumer would not be satisfied with paying $5,000.00 for a pony with the propensity that emerged. It was not established that the matter was adequately disclosed, nor that the pony was given this propensity after it was purchased. The problem has worsened, but that is no defence to the claim, as the propensity existed at the point of sale. Given these findings, I need not consider the second issue of “fitness for purpose”, as the claim is made out on the guarantee of quality alone. However, it is noted that the pony would also have failed this test. At no point did Ms M see Ms D’s daughter riding A. Ms M also had Ms D sign a contract stating that “The Buyer accepts the pony will be a suitable match based on the information supplied to the seller on the riding ability of the child”. It is not possible to contract out of consumer guarantees, but given that the pony was purchased sight unseen, it was unreasonable for Ms D to rely on Ms M’s expertise to match A for her daughter. However, the pony must still be reasonably fit for any particular purpose that was made known as the purpose for which it was acquired, which was to provide a safe pony for a novice child to learn on and move up the grades. I am satisfied that the pony has not been suitable for a beginner (as advised) or for a novice (as I would class Ms D’s daughter). It needs a confident firm hand and an ability to ride through its bucking propensity. This takes a level of experience and ability that is lacking in most riders that need a school mistress to take them up the grades. I am satisfied that failures to meet the guarantees would be considered “substantial” as that term is defined in the Act. A failure is substantial if a reasonable consumer, fully acquainted with the issues, would not have purchased the pony had they known (s21). This is not a hard test to meet when dealing with a pony that bucks." - Tribunal awarded a full refund of the purchase price: MD v KM Ltd [2020] NZDT 1328 (30 January 2020) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2020/1328.html>. 

• Kitten - Rash on muzzle few days after purchase - purebred - seller liable to pay vet fees: "ED and his partner bought a kitten from MA through the [online] website, paying a total of $1,240.00. After possessing the kitten for a couple of days, ED discovered a minor rash on the kitten’s muzzle, which over the next few days became progressively worse. He contacted MA who said it would not be necessary to take it to the vet, but ED grew concerned it may be an infection. The vet confirmed it was, and prescribed antibiotics. ED asked MA to pay for the vet, but she refused. ED filed a claim in the Disputes Tribunal ... ED advised that this kitten was not the only one MA had for sale at the time. He also said that he understood that MA was selling kittens from more than one litter. As a result of this I find that MA’s enterprise falls within the definition for being “in trade”, and as a result the CGA applies to the sale and purchase of the kitten. ... The CGA imposes guarantees, to protect consumers, into contracts for sale and purchase of goods, amongst other things. One of the guarantees, in section 6, that goods sold must be of acceptable quality, includes being free from minor defects, bearing in mind the price or the other relevant matters. The context of this sale is that the kitten was a purebred, sold for a relatively high price. It had an infection, as it turned out, which is a minor defect, in terms of the definition of the guarantee of acceptable quality. It was necessary to obtain antibiotics to treat it. Antibiotics are not over-the- counter medicines and require a prescription which would only be obtainable from a vet, so the visit to the vet was necessary to fix the problem. Because the CGA applies, MA is required to pay for the cost of fixing the problem which was the failure to comply with the guarantee of acceptable quality, and thus she is liable for the cost of the visit to the vet. The visit to the vet cost $110.00, and this is the amount MA must pay.": ED v MA [2023] NZDT 556 <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2023/556.html>. 

• Two year old female huntaway working dog - prolapse 2 months after purchase and put down - "When a good is sold by a seller who is in trade selling goods of that description, then guarantees may be implied into that agreement for the protection of the consumer. An  animal  comes within the definition of a good. Section 6 of the  Consumer Guarantees Act  1993 provides that goods supplied to a consumer must be of an acceptable quality. Section 7 defines acceptable quality as being fit for all the purposes for which the good is commonly supplied and free from minor defects.  ... The parties agree that the prolapse did not occur until a few months after NQ purchased C. NQ said that a prolapse can be a hereditary trait. He did not take C to a vet or provide any evidence that her condition was likely to be caused by a hereditary condition. He said he had two other dogs that had suffered a prolapse and so had some knowledge of this condition and knew it could not be cured. HN said he had bred dogs since he left school and had never had a dog with a prolapse. He said there were many factors that could cause a prolapse, and although it was unfortunate, it was always something that could happen. It is for NQ to show that it is more likely that C was sold to him with a pre-existing condition that would be classed as a defect. It may be that NQ is right in his assertion that C was sold to him with this condition and it was not something that developed while she was in his care. However, in the absence of a vet examining her and arriving at that conclusion, there is insufficient evidence on which I could arrive at that conclusion. The claim must there be dismissed for insufficient evidence and I do not need to determine the final issue of the effect of NQ putting C down rather than returning her to HN. As NQ has not shown that it is more likely that C was sold with an underlying condition that caused her to suffer a prolapse, the claim must be dismissed.": NQ v HN [2022] NZDT 38 (6 April 2022) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2022/38.html>.

•  two significant physical health issues which were diagnosed while he was still a young puppy, that is, an antebrachial limb deformity with carpal valgus in the left front leg, and double hip dysplasia - "I am satisfied that the CGA applies to UP’s supply of BS to DQ. This is because UP operates a breeding kennel registered with DogsNZ under the trading name of ‘Q Pet Shop’ and advertises puppies for sale from time to time. Q Pet Shop has sold numerous puppies over the years and continues to offer litters for sale, and UP says she currently has 2 to 3 litters per year. ... Where a supplier in trade supplies goods to a consumer, the CGA implies various guarantees including that the goods supplied are of acceptable quality (s 6 of the CGA). Goods are of an acceptable quality if they are fit for all the purposes for which goods of that type are commonly supplied; acceptable in appearance and finish; free from minor defects; and are safe and durable, as a reasonable consumer fully acquainted with the state and condition of the goods would regard as acceptable having regard to various matters including the nature of the goods, the price, and any statements made about the goods (s 7(1) of the CGA). These implied guarantees are assessed on an objective standard; that is, what a reasonable consumer would expect from a reasonable supplier in the circumstances. However, goods will not fail to comply with the guarantee of acceptable quality if the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods, and the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent (s7(4) of the CGA). A failure to comply with the guarantee of acceptable quality will be regarded to be of a ‘substantial character’ where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, the goods depart on one or more significant respects from the description by which they were supplied, or the goods or product are substantially unfit for a particular purpose made known to the supplier and cannot easily and within a reasonable time be remedies to make them fit for purpose (s 21 and 36). A puppy falls within the definition of ‘goods’ because goods include personal property of every kind, including  animals  (s 2(1) of the CGA, definition of ‘goods’), and UP supplied BS to DQ in trade for the reasons noted above. Therefore, s 6 of the CGA implied a guarantee into the contract and sale and purchase regarding BS that he was of acceptable quality. UP says that BS’s left front leg problem has been caused by a trauma, when DQ stepped on his left front paw in November 2021. She says that the hip scores of BS’s parents are appropriate to minimise the risk of hip dysplasia in their puppies, and that none of BS’s litter- mates or half-siblings have shown signs of hip dysplasia. UP says that BS’s hip dysplasia is not genetic and, rather, has been caused because BS has been over-fed and grown too fast and has not been rested and fed as recommended. That is, she says that BS’s hip dysplasia is environmental rather than hereditary. Having carefully considered the available evidence and information, I am satisfied that DQ has proved to the required standard that BS is not of acceptable quality under s 6 of the CGA due his hip dysplasia diagnosis. I make this finding for the following reasons: (a) BS’s problems with his left front leg and hips have been assessed by Veterinarians from T Vets, and BX of ABC University who is a specialist in small  animal  surgery. BS has also had x-rays taken. The medical conclusions support a finding that BS has an angular limb deformity of the left front leg and double hip dysplasia. (b) BX’s report dated 4 April 2022 notes that BS was diagnosed with bilateral hip dysplasia by T Vets in March 2022 after palpation and radiography on 18 March 2022. BX then examined BS at T Vets on 26 March 2022 to give a specialist second opinion. BX diagnosed canine hip dysplasia with moderate to high risk of developing osteoarthritis and ongoing pain. He also noted that 70 percent of affected dogs will not have ongoing lameness until later life, but it is impossible to predict an individual dog’s future. Conservative treatment can assist some dogs, but a total hip replacement may be the best option for approximately 30 percent of cases once skeletal maturity has been reached. (c) BX, in his report of 25 October 2022, notes that BS has the potentially serious health issue; that is, the development of hip dysplasia. Hip pain was found on clinical examination and radiographs taken in March 2022 which revealed subluxation of the hips when BS was 8 months of age. Joint laxity and subluxation compatible with moderate hip dysplasia was diagnosed, but with no evidence of degeneration (arthritic change) at that time. The report notes that BS was considered at risk for arthritis and surgical intervention was discussed, and a total hip replacement for both hips may be required, but this would only be if conservative management fails (conservative management includes weight and diet optimization, joint supplements, exercise moderation and anti-inflammatories). The report concludes that: “The fact remains that [BS] has radiographic hip dysplasia that may require lifelong medication and potentially invasive and risky surgery.” (d) BX also notes in his report of 25 October 2022 that there is a high heritability of canine hip dysplasia reported in multiple studies which develops during adolescence, and breeding programmes therefore use hip testing to select  animals  with superior hip conformation, and there are also environmental effects of exercise and weight gain. However, the report notes that BS’s body condition score (BCS) was 5/9 (normal or optimal) on vet visits in September 2021 and February 2022. BX goes on to note that the vet record in August 2022 states that BS was deemed overweight with a body condition score of 6-7/9 due to lack of exercise subsequent to orthopaedic issues, “But during the important period of development up to when I saw [BS] in March 2022 there is no evidence that diet or excessive weight (BSC 5/9) contributed to hip dysplasia”. BX also notes that “The fact remains that [BS] has a condition that relates to his genetic background and therefore was sold with this potential to canine hip dysplasia .... Most breeders are acting in good faith with phenotypic scoring and selection of dogs for better hip conformation but can still have affected puppies and have to accept occasional set- backs.”. (e) I have no reason to doubt that UP is a careful breeder who has taken appropriate steps to avoid puppies she breeds developing hip dysplasia, including hip testing breeding pairs. However, BX has confirmed that a puppy can develop hip dysplasia despite breeders taking care with the selection of breeding dogs, and the CGA requires UP to guarantee the puppies she sells even where due care is taken to avoid those puppies having genetic health issues. (f) I am satisfied that BS’s hip dysplasia was diagnosed at a very young age and is more likely than not hereditary, and will involve ongoing costs for DQ whether he chooses conservative management or invasive surgery. I am therefore satisfied that BS is not of acceptable quality." - Awarded full refund plus veterinary costs for initial costs regarding the hip dysplasia diagnosis: DQ v UP [2022] NZDT 211 (9 December 2022) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2022/211.html>. 

• Auction - Shortly after arrival the horse was found to be lame. It took some time for the horse to recover - "The test for acceptable quality is whether a reasonable consumer would consider the horse was acceptable, having regard to the price paid, the nature of the vendor and the context in which the horse was supplied, any statement made about the horse, and all other relevant circumstances of the supply (s7). The test for fitness for purpose is whether the horse was reasonably fit for racing, unless the circumstances show that the purchaser did not rely on the supplier’s skill and judgement in making that determination (s8). I am satisfied that the horse was not of acceptable quality, but only in relation to the immediate lameness experienced shortly after arrival. This is so for the following reasons: (a) In terms of the future prospects of “A” as a racehorse, a reasonable consumer would expect that they were purchasing nothing more than a chance. The auction was for an older racehorse that a partnership was selling. The horse was known to have “wear and tear”. The horse was sold with no reserve, and the price paid, for a pedigree racehorse for which the vendors had paid six figures, was a bargain basement price. NT did not get the horse vetted or inspected before he purchased it. He knew it had raced in September 2019 and had been placed in that race. However, it was 8 years old, and clearly the partnership that was selling it did not consider it worth retaining. (b) However, whilst NT was purchasing a chance, he could reasonably expect that the horse would have feet in a condition that could render him at least rideable. NT has presented a vet report, farrier report, and the evidence of BC, to confirm that the horse’s feet were in poor condition, and inflamed, and that it took remedial work, vet bills and many weeks of rest for the horse to recover. These factors do not relate to the usefulness of the horse as a racehorse, but simply as a horse for any purpose. The inflammation and extent of the issues were such, and arose so quickly, that I consider it probable that this lameness must have related to a pre-existing condition, or the state of the horse’s feet, at the time of the sale. (c) HS has stated that the lameness that arose occurred after arrival, and that the horse left his property in excellent condition. However, given the state of the feet, as described by the farrier, and the speed with which the condition emerged, I was not able to make that finding. HS also put any lameness issues down to the “wear and tear” he had previously advised was present. However, I find that the lameness was a specific injury or defect and could not be categorised as wear and tear. The horse could not have been raced or tread-milled in that condition. (d) NT notes that he observed the presence of injection sites on the horse and has concerns that there could be a history of, or a risk of the emergence of, an underlying arthritis. However, NT did not present any x-rays or vet reports to establish any such underlying condition, or any link between that condition and an inability to race in the future. The risk of such a condition emerging is part of the risk he took in buying a chance. As it currently stands, NT reports that the horse has recovered from its lameness and it may well be able to be readied for racing. (e) NT is concerned that the horse also did not meet the test of fitness for purpose in s8. He recalls being advised that the horse was in work and ready to race. I was unable to make a finding about what NT was told. The advertisement made no statement about the current fitness or prospects of the horse. No other conversation was recorded. The terms of sale specifically recorded that the purchaser was to satisfy themselves as to suitability. NT has submitted an email he received from NS after the horse left that it had been tread-milled in the weeks prior to departure, and that the horse had stopped full work not long after it last raced on 29 September 2019. This statement was made after purchase and could therefore not be submitted as direct proof of what HS had told NT prior to purchase. I accept that I could infer from the email that HS may well have said the horse was ready to work. In the end, nothing turns on this, as NT has purchased a racehorse as a chance that can still be tried out as a racehorse. (f) I accept that a year has now passed, and that this may affect the likelihood of success on the race track. However, a witness for NT, Mr C, advised that the initial lameness issues were resolved after 8 weeks. NT recalls these continuing for a further 4-6 weeks. Either way, the delay since then has been caused by the decision by NT not to work the horse pending an outcome of these proceedings, and no doubt, lockdown has played a part. Either way, that delay occurs at the risk of NT, as it was his election not to work the horse, not HS. HS had no control over the decision made to spell the horse, nor over the lack of racing prospects over lockdown. (g) In summary, now that the horse has recovered, and since it recovered, NT has had a horse that is of acceptable quality (this being tempered in the context of this purchase by the need for the horse to only produce a chance, rather than an actual outcome, and that it may turn out to have wear and tear that inhibits or entirely negates its prospects as a racehorse)." - Awarded direct costs incurred, ie, vet fees, farrier costs, treatment costs: NT v HS [2020] NZDT 1312 (21 October 2020) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2020/1312.html>. 

• Dog bought from dog breeder at 6 months old - assessed as having a condition called ‘luxating patella,’ a condition affecting the  animal ’s knees. The applicant seeks compensation for, and with respect to, past, ongoing, and expected veterinary costs, as well as reimbursement of the purchase price. The respondent acknowledges the dog sold to the applicant has the health condition referred to above. However, the respondent disagrees that she should be liable for the ongoing costs of treating the problem in question. The respondent says that as soon as she was contacted by the applicant with respect to the problem that has lead to this claim, a refund was offered (by telephone). - "It is likely that the above condition was hereditary and that there was a strong prospect, if not inevitability, that [the dog] would develop it. This is therefore quite distinguishable from the situation of an  animal  that sustains an injury, or an infection after being bought. I infer that this condition may significantly affect [the dog]’s mobility and require ongoing cost to treat. I do not need to analyse, in detail, the statutory definition of the term ‘acceptable quality.’ In context, that definition means that a good will be of acceptable quality if it as free of defects as a reasonable consumer, fully acquainted with the ‘state and condition’ of the good, would regard as acceptable. In my view, a reasonable consumer ‘fully acquainted’ with the nature of ‘luxating patella’ would not regard a puppy that has, or is very likely to develop, that condition as being reasonably acceptable. The respondent suggests that [the dog]’s contracting of ‘luxating patella’ could be attributed to environmental factors. I do not consider there is any credible evidence to support this explanation. As stated above, it is likely that it was inherited. Attempting to apply the principles of the  Consumer Guarantees Act  to a family pet is potentially problematic. However, the basic point that needs to be made is that a family pet is a ‘good,’ and the principles of the Act must be applied, as for any other kind of ‘good.’ I am able to find, without, I think, too much difficulty that the pet puppy sold by the respondent to the applicant is not of ‘acceptable quality’ for the purposes of the Act. There is, however, possible difficulty is in determining what should be the consequences of that, with respect to the consumer’s remedies. The scheme of available remedies in sections 18-23 of the Act, by way of overview, are a) damages for reduction in value, b) compensation for the cost of remedying a defect, and c) if the failure to meet a relative statutory guarantee is of a ‘substantial character,’ refund, or replacement. There is a conflict in the evidence regarding an alleged telephone call between the parties of late January 2022. The respondent says that, in this phone call, she offered to take [the dog] back, and provide a refund. The applicant denies that any such conversation took place. I do not need to resolve this conflict to rule on this dispute. However, it is the respondent’s clear position now (if not earlier) that she is prepared to provide a refund. This is unacceptable to the applicant if it means returning [the dog]. The position of the respondent, as just stated, may be something I can legitimately take into account in my consideration of the overall ‘substantial merits and justice’ of this matter. The applicant’s expectations of the possible outcomes of this process are, I have to say, unrealistic, at a quite high level. KQ wants a refund of the purchase price of $3,000.00, but to also keep the ‘good’ that was supplied to him. That is totally at variance with the principles of the Act. He also seeks compensation for expected surgery costs. In this regard, there is, firstly, no tenable evidence of what any such costs might be. Secondly there is not even evidence, I could accept, that surgery is really going to be necessary. There is some reference to this, as a possibility, in an email from veterinarian EB of 11 February 2022. The much later and more proximate report of UE [see paragraph 6 above] only suggests ‘rehabilitation exercises’ which is precisely what has happened. Perhaps most problematic is the applicant’s request that the respondent meet the future cost of [the dog]’s rehabilitation for her entire expected life. In addition to the remedies set out in paragraph 11) above, it is correct that a consumer may be entitled to damages for foreseeable consequential loss. Leaving aside contingencies with respect to [the dog]’s expected life span, I would fundamentally not see an award of future economic loss, of this kind, as being consistent with the spirit, and intent, of the Act. It would be analogous to a consumer saying that, with full knowledge of a good’s defect, he will continue using the good, but expect the supplier to indefinitely, and for the future, meet all additional costs arising from the defect. The applicant, in support of this part of his claim, refers to the mention on the website of ‘Consumer NZ’ of a case in the Disputes Tribunal in which a Tribunal referee apparently awarded the purchaser of a dog (bought for $1,000.00) a total of $7,449.00 including for ongoing veterinary costs. Assuming the ‘reporting’ of this case is accurate (this being a point about which I cannot make any assumption) I would have to say that, respectfully, it indicates an approach to the assessment of consequential loss under the Act with which I do not concur. For the guidance of the applicant, decisions of Dispute Tribunal referees are not binding on one another, any more than a District Court judge can be bound by a decision of one of his, or her, judicial brethren. Further to the above, if a good supplied to a consumer is not of ‘acceptable quality,’ that consumer will be entitled to a remedy. In the absence of a consensual outcome (with the supplier) the nature, and extent, of the remedies awarded will be a matter for the discretion, and judgment, of the presiding judicial body. In this case, the applicant is, without question, entitled to compensation. However, the assessment of that should be reasonable, and proportionate. I consider that, as stated above, a relevant factor is the respondent’s ‘offer’ of a refund subject to this dog being returned, and re-homed. That is something the applicant rejects (he wants to keep the dog, but get his money back) obviously because of the emotional attachment that has formed. When a good supplied is an  animal , the blunt, possibly even harsh, reality is that it is open to the owner of that good to, so to speak, draw a line under the prospect of continuing costs. If an owner of an  animal  chooses not to do that, then he will have to bear those ongoing costs. The parties appear to agree that the reduced, or diminished, value of this puppy, bearing in mind its condition, would probably be in the order of around $2,000.00, with the dog being worth therefore, $1,000.00. In my view, and looking at this matter ‘in the round,’ I consider a fair and reasonable outcome commensurate with the ‘substantial merits and justice of the matter,’ [section 18(6) Disputes Tribunal Act 1988 refers] would be an award of $2,000.00 for diminished value, together with reimbursement of the 4 [Veterinary Clinic] invoices filed with the claim, each for $75.00, for the period from 4 November 2022 to 20 January 2023. This is a total of $2,300.00.": KQ v UN [2023] NZDT 127 (10 May 2023) <http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZDT/2023/127.html>. 

• diagnosis of congenital hypodipsia after purchase - "On 2 January 2023, the puppy started to show certain health issues; in particular, a low intake of fluids. The puppy was taken to a veterinarian and, subsequently, the specialist veterinary clinic at Massey University. The puppy was diagnosed with congenital hypodipsia. By way of paraphrase, the veterinary advice the applicants received was to the effect that the puppy’s prognosis was very poor, and that, to sustain the puppy, veterinary costs would be incurred at the level of several thousands of dollars. A decision was made to euthanise the puppy. ... he applicants had an expectation that the puppy would be of ‘ acceptable quality .’ In context, this would mean, in my view, that the puppy would be free of any significant congenital conditions that would likely pose the risk of substantial veterinary costs for the applicant-consumers. The respondent’s evidence that the puppy was, when it was with her, in good health, and had been checked by a vet is noted, but cannot be especially relevant to what happened later, subsequent to the sale. The evidence overwhelmingly establishes that some 10 days after the sale, this puppy underwent a rapid, and sudden, decline in its health, characterised by severe dehydration. It underwent a battery of tests at Massey University. The professional advice the applicants received, subsequent to these tests, indicated a high probability of liver damage, and the prospect of brain, and heart, damage. The prognosis was poor in the extreme. There is a report from LN, veterinarian, dated 30 March 2023 to the effect that it is her professional opinion that the puppy suffered from congenital hypodipsia. I accept this evidence. The respondent says that she has received opinions from other vets that there may be other possible explanations. No evidence has been produced from these vets the respondent says that she has consulted. HF has referred to a certain DNA test on the puppy’s mother carried out on 11 April 2023, but not submitted to the Tribunal until the day before the hearing. I would agree with the applicants that this kind of DNA test is not likely to be helpful in considering whether the puppy sold to TB and UB had the congenital condition referred to in the claim. Further to the above, a puppy that experiences what this one did, about 10 days after a purchase, which is assessed as being likely to have the congenital condition in question, is not, I conclude, of  acceptable quality  for the purposes of the Act. The respondent says she was “robbed of choice,” and the option of having the puppy returned, and cared for, by her, HF, or re-homed. I have to say, bluntly, that that is a totally unrealistic, and fanciful, view. At the point in time when the puppy was euthanised, it was distressed, barely stable, and had probably sustained significant organ damage. The applicants, if they had attempted to persevere with the puppy’s treatment, were probably facing the prospect of veterinary costs of several thousands of dollars. The applicants’ decision to euthanise the puppy was, in my view, understandable, justified, and, above all, humane. In real and practical terms, I believe the applicants had little, if any option. Having found that the puppy was not of ‘ acceptable quality ,’ the applicants are entitled to compensation. The scheme of remedies in sections 16-23 of the Act available to a consumer, as against the supplier of a good, allow for a right to a refund, and compensation for consequential loss, where a failure to meet a relative guarantee is of a ‘substantial character.’ I find that the latter requirement is clearly met in this case. ... The applicants are, as stated above, also entitled to compensation for foreseeable consequential losses. Those losses are the veterinary costs which have been proved and are, respectively, $750.00, $240.00 and $269.00.": TB v HF [2023] NZDT 307.

[#3] Not fit for purpose (eventing): Henderson v McAuliffe (Civil Claims) [2017] VCAT 2119: "On the evidence before me, in particular, Dr Neil’s file, Dr Nicol’s report and her oral evidence, I find that Ms Henderson has satisfied the burden of proof that Rennie was not fit for purpose or of  acceptable quality . I find that on the balance of probabilities Rennie had some level of lameness at the time of sale in at least three legs and as such I am satisfied that Rennie could not be ridden in event jumping. Rennie was therefore not fit for the purpose which Ms Henderson had disclosed to Ms McAuliffe. Subsection 54(4) however, provides that if goods supplied to a consumer are not of  acceptable quality ; and the only reason or reasons why they are not of  acceptable quality  were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of  acceptable quality . In this case, Ms McAuliffe said that she had advised or brought to Ms Henderson’s attention all known information about Rennie’s lameness, prior to the purchase. I am not satisfied on the evidence before me that Ms McAuliffe made full disclosure about Rennie’s lameness to Ms Henderson prior to purchase, nor that Ms Henderson was made aware of the lameness issues. I am not satisfied on the evidence that Ms McAuliffe showed Ms Henderson the text from Dr Neil which stated the degree of lameness of Rennie prior to the purchase."

[#4] Can truth be misleading or deceptive? see discussion and cases cited in Abbott v Zoetis Australia Pty Ltd [2022] FCA 1390, [489]-[492].

[#5] Literature: 

• ** Nicholas Findlater, 'The Application of the Australian Consumer Law to the Purchase of Companion Animals: A Comparative Analysis' (2013) 9 Australian Animal Protection Law Journal 30, 40: "The Trade Practices Act was - and the Australian Consumer Law is - startlingly silent on its operation in relation to animals, and the case law in this field is scarce. As a result, the Australian Consumer Law struggles to escape the criticism that its consideration of the interests of companion animals is, at best, slight... See, eg, Bentley v Wright [1997] 2 VR 175." - consumer law on companion animal shave come a long way since then - see case law above - but still scarce.

• Ian Weldon, 'Consumer Law and Animal Protection' (2014) 10 Australian Animal Protection Law Journal 4, 24-5, citing and discussing Commissioner for Consumer Protection v Armstrong [2012] WASC 206 - the only case on companion animal breeders discussed therein.

• Stephanie Zillman, 'Queensland dog owners upset at buying pets with pre-existing health problems' (ABC News, 3 May 2020) <https://www.abc.net.au/news/2020-05-03/puppy-farm-queensland-sunshine-coast-dispute/12132372>.

• Jackson Peck, 'Victorian animal legal clinic seeks compensation from dodgy breeders' (ABC News, 10 May 2021) <https://www.abc.net.au/news/2021-05-10/victorian-animal-clinic-dog-legal-breeders-compensation/100126684>.

• Department of Energy, Mines, Industry Regulation and Safety, 'New campaign to help pet buyers understand their consumer rights' (Webpage, 19 February 2023) <https://www.commerce.wa.gov.au/announcements/new-campaign-help-pet-buyers-understand-their-consumer-rights>: "Consumer Protection has developed the new campaign to empower new pet buyers and increase awareness about how the Australian Consumer Law (ACL) protects new pet owners, providing the same consumer guarantees as any other product purchased. Under the ACL, pets sold by breeders and pet shops are required to match the description as advertised, be of acceptable quality, be free of significant health issues and live a healthy lifespan that is expected of the breed. Traders must also meet additional promises to purchasers based on animal pedigree, condition, performance or characteristics The ACL applies to all pet shops, breeders and private sellers operating in trade or commerce, but does not apply to someone selling a pet privately on a one-off or ad hoc basis. If a buyer has a genuine issue with their new pet, they may be entitled to a remedy. This will depend on whether the problem is major or minor and could range from a partial to full refund. Pet owners may be able to keep their beloved new pet while receiving monetary compensation or reimbursement of out-of-pocket expenses. ... Comments attributed to Commerce Minister Sue Ellery: "It is important for Western Australians to know that they have rights when they buy a new pet, like they would with any other purchase. "To make sure your new pet comes with consumer guarantees, be sure to purchase from reputable local breeders or pet stores, as consumer guarantees do not apply to ad-hoc, one-off purchases from a private seller. "When shopping around for a new pet, see if you can visit the pet in the place it was born and meet its parents. This is the best way to check that a pet has been well cared for and to get an idea of how big the pet will grow and what its temperament might be like. "Don't buy pets online without meeting them first, as you could be inadvertently supporting a puppy farm, poor breeding practices or fall victim to a scam. "Of course, if buying a pet isn't for you, I encourage you to consider adopting your new companion from an animal shelter or rescue."

• (Australia - Decided cases on liability and Damages): Katy Barnett and Jeremy Gans, Guilty Pigs, The Weird and Wonderful History of Animal Law (La Trobe University Press, 2022).

• **'South Australian Standards and Guidelines for Breeding and Trading Companion Animals' (Government of South Australia, January 2017) <https://cdn.environment.sa.gov.au/environment/docs/standards-and-guidelines-for-breeding-and-trading-of-companion-animals-gen.pdf>. 

[#6] Damages: See, also, Veterinary Negligence. 

[19 February 2024 archive of page]: <https://perma.cc/G5X9-SH37>. 

© Jing Zhi Wong, 2023-2024