Alert Learning Pty Ltd v Linda Christine Richards and Raymond John Richards
[2014] NSWCATCD 86
•17 June 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Alert Learning Pty Ltd v Linda Christine Richards and Raymond John Richards [2014] NSWCATCD 86 Hearing dates: 8 May 2014 Decision date: 17 June 2014 Before: Philip Boyce, Senior Member Decision: 1.The respondents must pay to the applicant within fourteen (14) days of the date of the decision date the sum of $3,000.00.
2.On or before 10 July 2014 the respondents must pick up the set of eight (8) chakra crystal singing bowls from the place nominated by the applicant and at time and date that is mutually convenient to the parties.
3.The risk in the eight (8) chakra crystal singing bowls passes to the respondents as at the date of these orders.
Legislation Cited: Australian Consumer Law
Consumer Claims Act 1998Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Alert Learning Pty Ltd (applicant)
Linda Christina Richards and Raymond John Richards (respondents)
File Number(s): GEN 13/56942
REASONS FOR DECISION
Application
This is an application by a consumer to return goods purchased to their supplier and an order for the supplier to pay to the consumer the sum of $3,000.00 being the purchase price of those goods.
Jurisdiction
The applicant is a consumer within the meaning of Section 3 of the Consumer Claims Act 1998.
The matter falls within the definition of “consumer claim” under Section 3A of the Consumer Claims Act 1998.
The cause of action arose within the 3 years prior to the commencement of proceedings, and the value of the claim is less than $30,000.00.
The Tribunal is satisfied that it has jurisdiction under Section 7 of the Consumer Claims Act 1998.
Background
The consumer applicant purchased from the supplier respondents an incremental set of eight chakra crystal singing bowls (“bowls”).
The applicant paid a price of the $3,000.00 for the bowls.
On delivery of the bowls the applicant alleges that they were not fit for the purpose disclosed to the respondents by the applicant.
The applicant seeks orders for the return of the bowls to the respondents and a further order that the respondents pay to her the sum of $3,000.00 being the purchase price of the bowls.
For the avoidance of doubt, a reference in these reasons for decision to the applicant will be to the director of the applicant and the applicant. A reference to the respondents will be to either or both of the respondents.
Law
The Australian Consumer Law (“ACL”) prescribes certain guarantees in respect of the supply of goods. In particular, S 55 prescribes that there is a guarantee that goods supplied are reasonably fit for any disclosed purpose for which the goods are being acquired.
A disclosed purpose is defined by s 55(2) as:
“ …a particular purpose (whether or not that purpose is for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a)The consumer makes known, expressly or by implication, to:
i. The supplier; or,
ii. A person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or,
(b) The consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in (a) (ii).”
If a consumer takes action against a supplier for the failure to comply the guarantee in s55 that the goods will be reasonably fit for the purpose disclosed by the consumer then the provisions of s 259 (1) and (3) of the ACL apply in that:
“(1) A consumer may take action under this section if:
(a)a person (the supplier) supplies, in trade or commerce, goods to the consumer; and,
(b)a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59 (1) is not complied with.
....
If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:
(a) Subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds of rejection; or,
(b) by action against the supplier, recover compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods”
EVIDENCE
Applicant’s evidence
The applicant has the onus of proof to establish that the bowls that were delivered to her were not the bowls that she ordered.
The applicant’s evidence is that its director first met the respondents at workshops run by respondents in the methodology of vibrational sound healing in about 2009.
The respondents, in particular Ms R are considered to be experts in the methodology and in the use of chakra singing bowls.
In 2010 the applicant patented a multi-sensory learning system in the USA.
As part of the delivery of that system to its clients the applicant decided to acquire a set of bowls in perfect pitch incrementally sized that ascended in order and sound frequency of a primary chakra.
The applicant says that its director had a crystal dreaming with Mr R, one of the respondents, on 9 June 2013 and in discussions with him mentioned that the director of the applicant intended to travel to a supplier to purchase a set of crystal singing bowls. Mr R advised that Ms R could put the crystal bowls together and guarantee a pitch.
In continuing discussions, the respondents informed the applicant that they had a credit at that supplier and that they could purchase the bowls on their credit at the supplier before the end of the financial year.
The applicant went to the supplier to see the bowls.
The applicant refers to an email from the respondents a short time after 9 June 2013; however it is not in evidence.
The director of the applicant says that after she received the email she spoke to Ms R and confirmed that she was “after a set [of bowls] that both sounded fantastic and were incrementally sized so as to be visually pleasing”.
The respondents advised the applicant to purchase extra bowls above and below each of the primary chakra so that it would have a complete octave of musical notes in the perfect pitch of the chakras.
The applicant wanted the additional bowls (the “secondary chakra bowls”) to be in appropriate sizes so that when placed with the primary set they would form a circle of bowls highest in frequency to the lowest frequency.
The respondents advised the applicant that they could satisfy the applicant’s requirements with a set of bowls.
On 13 June 2013 the applicant confirmed the order to the respondents and that if additional bowls could be supplied incrementally smaller than 18” then a total of $2,500.00 would be debited from her credit card and if a 20” bowl was required then she would pay $3,000.00 for the set.
The respondents processed the credit card payment for $3,000.00 on 13 June 2013.
In an email from the respondents to the applicant on 23 July 2013 the respondents advised the applicant that they had assembled the bowls and described them as “This week I have put your crystal bowls set together as requested with an order of size: 1 x 8”, 2 x 10”, 1 x 12”, 1 x 13”, 1 x 14”, 1 x 16” and 1 x 18” – a total of 8 bowls; a complete octave of sound. They look and sound great”.
In an email dated 1 August 2013 the applicant questioned the respondents, expressing confusion about the bowls sizes. The applicant understood that it would receive a 20” bowl so that it would have a “complete set of sizes plus a possible extra couple of bowls”. A question was also asked by the applicant as to why it had paid an additional $1,000.00 for the bowls when it’s enquiry of a supplier of bowls had a set of 8 bowls for a price of $1,995.00 and which that supplier represented to be for each of the chakras.
The applicant took delivery of the bowls from the respondents on 4 August 2013 and at the time of delivery Ms R said to the applicant “I have put together a set of singing bowls like mine”.
The applicant did not open the packaging that the bowls were delivered in.
The respondents replied to the applicant’s email of 1 August 2013 after delivery of the bowls on 7 August 2013.
By email dated 10 August 2013 from the applicant to the respondents the director of the applicant advised the respondents that she still had not opened the packaging of the bowls as “I now realise they are not what I requested” and advised the respondents that she rejected the goods and requested a refund of the price.
On 15 August 2013 in an email to the respondents, the applicant set out the reasons why the goods delivered were not fit for the purpose she made known the respondents. The director of the applicant confirmed in that she sought from the respondents “a set of bowls that both sounded fantastic and were incrementally sized so as to be visually pleasing” and claiming that the respondents agreed to supply “if the smallest bowl was the crown chakra then the second smallest would be the ajna [third eye], the third smallest would be the throat etc.”
On 19 August 2013 the respondents replied to the applicant by email advising the “the bowls fulfilled your request for incremental sizing and the chakra notes for each of the bowls (as marked on the boxes)” and “the bowls that you purchased from me are dearer than from crystal castle [sic] because they are individually selected bowls that have been chosen for their chakra tone, as well as their size.”
There then followed emails from the applicant to the respondents and vice versa of 19, 21 x 2, 27 August 2013. Claiming and counter claiming what the applicant had ordered and what the respondents had supplied.
On 1 September 2013 the respondents provided the applicant with an invoice dated 30 June 2013 for the supply of “8 x Chakra crystal singing bowls incrementally sized 8” 10” 12” 13” 14” 16” and 18” with one tone an octave higher” for a price of $3,000.00 inclusive of GST.
By a further email dated 6 September 2013 the applicant again sought advice on how to return the bowls and requested that a refund of the price be processed.
In the applicant’s evidence there is included a description of chakras in an article “Sound and the Chakras” by Jonathan Goldman. This article examines and describes the awareness of energy centres within the body. There are seven main or primary chakras generally acknowledged.
An extract of the Goldman article sets out the primary chakras, their location within the body, their energy and their sounds as referenced to frequencies and tones as follows:
1st Chakra – the root: Energy: grounding; Keynote C frequency 256Hz;
2nd Chakra-the sacral; Energy-Life energy; Keynote D- frequency 288hz;
3rd Chakra-the navel: Energy-power; Keynote E- frequency 320Hz;
4th Chakra-the heart: Energy-compassion and love; Keynote F-frequency 341.3 Hz;
5th Chakra-the throat: Energy-communication and creation; Keynote G-frequency 384Hz;
6th Chakra-the 3rd eye Indian name (“Ajna”): Energy- Insight and wisdom; Keynote A-frequency 426.7Hz;
7th Chakra-the Crown: Energy-transcendence: Keynote B-frequency 480Hz.
Goldman’s article refers to the using the diatonic scale for the keynotes of each chakra, starting on note C in a diatonic major scale, that is an 8 note musical scale starting with middle C.
Applicant’s Expert Evidence
The evidence adduced by the applicant includes an expert opinion from an experienced post graduate qualified musician. The expert unpacked and tested the bowls on 4 February 2014. Her methodology included testing each bowl using a frequency measuring device. The device used the standard western system of Equal Temperament whereby Concert Pitch (A4) = 440 Hz and Middle C (C4) = 261.6 Hz.
The expert found that the boxes for the 8 bowls were labelled as G, 2xA, B, C, D, E & F. Her findings are that the bowls were toned as 3xA, 2xE, F, one between C# & D and the last between B & C. Five of the bowls have tones in the octave beginning C4 (Middle C), the other 3 have tones in the octave below beginning with C3. The boxes were incorrectly labelled.
The bowls delivered by the respondents were:
Bowl Size
Note or Tone marked on Box
Pitch
(Hz)
Actual Tone of Bowl
Octave where frequency found
8”
A
446.1
A
Octave 4
12”
F
347.6
F
Octave 4
10”
E
323.9
E
Octave 4
10”
D
318.8
E
Octave 4
14”
C
281.9
Between C# & D
Octave 4
13”
B
253.1
Between B & C
Octave 3
16”
A
223.3
A
Octave 3
Large Bowl
G
211.5
A
Octave 3
Further she found that the 8 bowls do not increase incrementally in pitch and cannot be used to produce a set of tones to formulate a full octave and finds that the 8 bowls are not an incremental set.
The applicant’s email of 10 August 2013 set out the tone of the bowls and the tones ordered as follows:
Ordered bowl
size
Chakra
Note
8”
Crown
B
10”
Ajna
A
12”
Throat
G
13”
Heart
F
14”
Solar Plexus
E
16”
Sacral
D
18”
Base (Root)
C
20”
Different C
Respondents’ evidence
The respondents’ evidence is that the bowls supplied by the respondents were carefully chosen by the respondents in particular using the skills and abilities of Ms R as a vibrational sound healer.
The respondents put the bowls together based on the applicants request that the bowls be chakra toned similar to the respondents’ bowls that are used in the process of vibrational healing. The respondents bowls are:
Chakra
Note
Size
Root
C
15”
Navel
D
18”
Solar Plexus
E
8”
Heart
F
12”
Throat
G
16”
Third Eye (Ajna)
A
10”
Crown
B
14”
The respondents then say that the applicant requested that he bowls be put together so that they were incrementally sized and that Ms R went to her supplier and with a chromatic tuner tested bowls before putting together a set that the bowls were incrementally sized substituting a 20’ bowl as ordered with a 13” and 14” bowl. To make up 7 bowls plus one an octave higher, one of the bowls needed to be duplicated and Ms R chose to duplicate a 10” bowl.
Ms R’s evidence is that on 12 June 2013 she had a telephone conversation with the director of the applicant saying that the applicant requested an incrementally sized crystal singing bowl set “as they looked better ‘aesthetically’” and that the applicant confirmed that order on 13 June 2013.
The respondents’ deny that the bowls were to be decreasing in size in relation to the chakras.
In her evidence Ms R also states that “The only requests made to me by Ms B prior to and up to the purchase of the crystal singing bowls was that I provide a set of bowls that were chakra toned and then later, increased incrementally in size. The goods I provided follow these requests and are fit for purpose of chakra healing as described by other experts in the field. The goods match demonstrations made by myself as an expert and those seen and heard by Ms B”.
The respondents take issue with the applicant’s expert evidence as they say that the evidence refers to precise music playing rather than the use of crystal singing bowls for vibrational healing.
The respondents establish that Ms R is a leading practitioner in vibrational healing and an expert in the use of crystal singing bowls in that discipline.
Findings
There has been a significant amount of evidence put to the Tribunal in support of the claim and its defence.
As is often the case where there is no clear meeting of the minds at the time of making the agreement there is room for misinterpretation and conjecture by both parties as to what the terms of the contract to supply the goods was.
It is incumbent on the Tribunal to make a finding on what the applicant ordered from the respondents’ and whether what was supplied was fit for the disclosed purpose it was supplied for.
On the civil standard of proof the Tribunal is satisfied that on 9 June 2013 finds that the applicant wished to order a set [of bowls] that both sounded fantastic and were incrementally sized so as to be visually pleasing from the respondents to be selected by the respondents using their expertise.
On the respondents’ evidence of a conversation on 12 June 2013 the Tribunal is satisfied that the goods ordered were to be incrementally sized crystal singing bowls. This is the order that the applicant made. It was for 8”, 10”, 12”, 13”, 14”, 16” and 18” set of bowls that made up the notes of the primary chakra. The invoice issued by the respondents’ dated 30 June 2013 and was emailed to the applicant on 1 September 2013 for “8 x Chakra crystal singing bowls incrementally sized 8” 10” 12” 13” 14” 16” and 18” with one tone an octave higher”. This invoice does not describe the bowls that were delivered.
The respondents asserted that the applicants order was assembled on 23 July 2013 and that the bowls were “a complete octave of sound. They look and sound great”. On 23 August 2013 the respondents’ emailed the applicant and advised “the bowls fulfilled your request for incremental sizing and the chakra notes for each of the bowls (as marked on the boxes)”.
On the evidence adduced by the applicant the Tribunal finds that the bowls supplied by the respondents’ were not what was ordered by the applicant. They were neither incremental tone nor were their tones matched to the labelling on the boxes. The applicant intended to purchase a set. The respondents did not supply a set in accordance with the order made by the applicant.
As to the bowls fitness for purpose, the Tribunal prefers the applicant’s evidence and finds that the applicant disclosed to the respondents that she wished to acquire a set a bowls in perfect pitch incrementally sized that ascended in order and sound frequency of a primary chakra for use in its multi-sensory learning system.
The applicant relied on the respondents’ expertise to satisfy that request and the respondents failed to properly exercise that expertise.
The remedy for the applicant was to reject the goods. The Tribunal finds that the applicant rejected the goods on 10 August 2013, 4 days after taking delivery of them. The respondents rejected the rejection of the goods.
The Tribunal finds that the goods did not fit the purpose for which the consumer disclosed to the respondents they were to be used and as such do not comply with the guarantee in s 55 of the ACL.
Pursuant to s 260 of the ACL the Tribunal finds that there has been a major failure in that a reasonable consumer would not have acquired the goods had the consumer been fully aware of the failure of the goods as they depart from the description by which they were acquired and are unfit for the disclosed purpose made known to the supplier.
As there has been a major failure in the supply of the goods pursuant to s 259 (3) of the ACL the applicant is entitled to the reject the goods. The applicant rejected the goods on 10 August 2013. The respondents refused to accept the rejection of the goods and they remain in the applicant’s possession.
The consequence of rejecting the goods is that the applicant is obliged to return the goods to the respondents unless they cannot be returned without significant cost to the applicant (s 263(2)(b)). The applicant is located in Sydney. The respondents are located in Mullumbimby. The goods are bulky and fragile. The cost to return the goods will be significant. Therefore the provisions of s 263(3) will apply and the respondents must retrieve the goods from the applicant.
The appropriate remedy for the applicant is that the respondents refund the purchase price being $3,000.00 for the bowls and that the respondents pick up the bowls from the applicant.
Accordingly the Tribunal orders:
(a) The respondents must pay to the applicant within fourteen (14) days of the decision date the sum of $3,000.00.
(b) On or before 10 July 2014 the respondents must pick up the set of eight (8) chakra crystal singing bowls from the place nominated by the applicant and at a time and date that is mutually convenient to the parties.
(c) The risk in the eight (8) chakra singing bowls passes to the respondents as at the date of these orders.
(signed)
P L Boyce
Senior Member
Civil and Administrative Tribunal of New South Wales
17 June 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 21 August 2014
0
0
2