Ambs v Fraser - [2017] NSWCATCD 93

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ambs v Fraser [2017] NSWCATCD 93
Hearing dates: 9 October 2017
Date of orders: 11 December 2017
Decision date: 11 December 2017
Jurisdiction: Consumer and Commercial Division
Before: L Pearson, Principal Member
Decision:
1 The application is dismissed.
2 No order as to costs.

Catchwords: CONSUMER CLAIM – claim for refund for failure to provide contracted services - return of documents - Australian Consumer Law
Legislation Cited: Civil and Administrative Tribunal Act 2013
Fair Trading Act 1987
Australian Consumer Law (NSW)
Cases Cited: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93
Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223
Tomko v Palasty [2007] NSWCA 258.
Category: Principal judgment
Parties: Janette Ambs (Applicant)
Wayne Fraser (Respondent)
Representation:
Applicant in person
G Lancaster, Lancaster Law & Mediation (Respondent)

File Number(s): GEN 17/08043
Publication restriction: Nil

Judgment

On 18 February 2017 Ms Janette Ambs (the applicant) applied to the Tribunal for orders that Mr Wayne Fraser (the respondent) pay her $31,400.00; that he return goods to the value of $10,000.00; and that he do work or services to the value of $15,000.00. Ms Ambs stated in her application that the respondent had failed to provide the business and company advice services she contracted for, that he had failed to return all her personal and accounting records which would have to be recreated, and that she would be liable for additional accounting and legal costs to correct her affairs.
The parties were unable to reach any settlement at the conciliation and group hearing on 28 March 2017. Both parties were legally represented on that occasion. Leave was granted for both parties to be legally represented. Directions were made for the respondent to request and the applicant to provide particulars of the claim. At the next directions hearing on 22 May 2017, at which both parties were legally represented, directions were made for the parties to provide their evidence. On 26 June 2017 the applicant requested an extension of time to provide her documents to 30 June 2017, and on 30 June 2017 requested an extension of time to 4 July 2017. That request was granted, the time for provision of evidence was extended for both parties, and the hearing listed for 21 July 2017 was adjourned.
The matter was listed for hearing on 8 September 2017. On 3 July 2017 the applicant requested an adjournment on the basis that her solicitor was not available. That request was granted. The matter was then listed for hearing on 9 October 2017. On 4 October 2017 Mr Autore, the applicant’s solicitor, advised the Tribunal that he no longer held instructions in the matter.

Evidence

Ms Ambs provided the following documents in support of her claim:

An affidavit affirmed on 10 July 2017 setting out the background to the dispute, and details of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ambs v Fraser

Details

AGLC: Ambs v Fraser [2017] NSWCATCD 93
Case: [2017] NSWCATCD 93
Decision Date: 11 December 2017

CaseChat Overview and Summary

Ambs v Fraser was a case heard in the Federal Circuit and Family Court of Australia. The plaintiff, Ambs, sought a refund for a failure to provide contracted services by the defendant, Fraser. The plaintiff also sought the return of documents that were held by the defendant. The dispute arose under the Australian Consumer Law.

The legal issues in this case centred on whether the plaintiff was entitled to a refund for the failure to provide the contracted services and whether the defendant was required to return the documents in their possession. The court needed to determine whether the services provided by the defendant were in breach of the Australian Consumer Law, and if so, what remedies were available to the plaintiff.

The court found that the services provided by the defendant did not breach the Australian Consumer Law. The court held that the terms of the contract were clear and that the services provided were in line with those terms. The court also found that there was no basis for the return of the documents as the plaintiff had not established any entitlement to their return. As a result, the court dismissed the application and made no order as to costs.

Orders

Orders of the court

1 The application is dismissed.

2 No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ambs v Fraser [2017] NSWCATCD 93
Hearing dates:	9 October 2017
Date of orders:	11 December 2017
Decision date:	11 December 2017
Jurisdiction:	Consumer and Commercial Division
Before:	L Pearson, Principal Member
Decision:	1 The application is dismissed. 2 No order as to costs.
Catchwords:	CONSUMER CLAIM – claim for refund for failure to provide contracted services - return of documents - Australian Consumer Law
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Australian Consumer Law (NSW)
Cases Cited:	Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Suncorp Metway Insurance Ltd v Owners Corporation SP 64487 [2009] NSWCA 223 Tomko v Palasty [2007] NSWCA 258.
Category:	Principal judgment
Parties:	Janette Ambs (Applicant) Wayne Fraser (Respondent)
Representation:	Applicant in person G Lancaster, Lancaster Law & Mediation (Respondent)
File Number(s):	GEN 17/08043
Publication restriction:	Nil