Ash's Animal Grooming v Pet Network Pty Ltd

[2023] QCAT 319

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ash’s Animal Grooming v Pet Network Pty Ltd  [2023] QCAT 319

PARTIES:

ASH’S ANIMAL GROOMING

(applicant)

v

PET NETWORK PTY LTD

(respondent)

APPLICATION NO:

55/22

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

25 July 2023

HEARING DATE:

13 June 2023

HEARD AT:

Pine Rivers

DECISION OF:

Adjudicator Scott-Mackenzie

ORDERS:

The respondent pay to the applicant $284.90 within 14 days of this order.

CATCHWORDS:

MINOR CIVIL DISPUTE – CONSUMER/TRADER DISPUTE – where animal bath purchased – where foot pedals rusted off – whether animal bath of acceptable quality – whether failure of the animal bath a major failure – where animal bath rejected two years after purchase – whether rejection in rejection period – where animal bath continued to be used after rejection – remedies

Australian Consumer Law (Queensland), ss 54, 259, 260, 262

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102

APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Mr McLeod, Pet Network Pty Ltd

REASONS FOR DECISION

Application

[1]On 22 October 2020 the applicant made application to the Tribunal for a refund of $2,150.00 paid by it to the respondent for an animal bath together with costs in the sum of $3,496.90, and the filing fee on the application, $130.70 (application).

[2]For the reasons following, the order of the Tribunal is that the respondent pay to the applicant $284.90 within 14 days of this order.

Material

[3]The applicant filed with the application the following documents:

(a)     particulars of the claim;

(b)     several emails sent on 21 and 22 April 2021;

(c)     several photographs;

(d)     correspondence between the applicant and the Office of Fair Trading in about May 2021;

(e)     correspondence between the applicant and its lawyers, the lawyers and the respondent and the respondent and applicant in and about May 2021 and June 2021;

(f)      metallurgical report by Laboratories for Materials Advanced Testing Services Pty Ltd (LMATS) dated 27 April 2022;

(g)     invoice LMATS to the applicant for $3,102.00 dated 29 April 2022;

(h)     letter applicant’s lawyers to the respondent dated 20 June 2022; and

(i)      invoice AAH ZAP to the applicant for $284.90 dated 12 August 2022.

[4]Subsequently, the applicant filed an invoice from the applicant’s lawyers to it for $110.00 dated 10 July 2021.

[5]The sum of $3,496.90 claimed comprises:

LMATS (metallurgical report)  $3,102.00

AAH ZAP (replacing foot pedals with hand held switch)    $  284.90

Applicant’s lawyers’ costs  $  110.00

$3,496.90

Response

[6]The respondent, on 20 January 2023, filed a response responding to the particulars of the claim (response).  Filed with the response were 20 photographs, referred to in the response.

Material

Particulars of the claim

[7]The applicant asserts she purchased the animal bath in August 2020.  On 3 November 2020 a foot pedal “rusted off”.  The applicant attempted to contact the respondent by telephone, without success.  It appears she did so on a public holiday in the state in which the respondent is located.  The respondent asserts it returned the telephone call.

[8]In April 2021, about eight months after the animal bath was purchased, the applicant’s electrician, AAH ZAP, commented on the condition of the foot pedals.  The applicant contacted the respondent.  The respondent, after contacting the manufacturer of the bath, asserted to the applicant the condition of the pedals is due to dogs urinating on them and rust in the bath is due to it being cleaned with a scourer.

[9]The parties agreed to retain a metallurgist to report on the condition of the animal bath with the applicant paying the cost of the report if the rust was not due to the quality of the materials used in the construction of the bath and the respondent paying the cost if the rust was due to the quality of the materials.  The applicant, on about 27 July 2021 and without consulting the respondent, retained LMATS.

[10]The report is dated 27 April 2022.  The findings are in the following terms:

The findings on analysis of the corroded steel frame, suggest that the 304 - type stainless steel bath was exposed to the same wash water and chemicals used in normal washing activities at the Client’s premises however, the bathtub material deteriorated over a short time due principally to the absence of molybdenum in that particular alloy.  There appears to be underlying metallurgical issues with the material that could lead to this pitting mechanism for example, inhomogeneous distribution of elements and/or contamination of the protective chromium oxide layer caused at the manufacturing stage.[1]

[1]Page 2 of the report.

[11]The report cost $3,102.00, almost half as much again as the cost of the animal bath.  The respondent rejected the conclusion on the grounds it had not been consulted about retaining LMATS and the brief provided to it was inadequate.  Additionally, it refused to pay the cost of the report on the ground it was out of proportion to the amount in dispute.

[12]On 20 June 2022 the applicant’s lawyers sent to the respondent a letter demanding a refund of the price paid for the animal bath and the cost of the report.

[13]AAH ZAP, on about 12 August 2022, replaced the foot pedals with a hand-held switch at a cost of $284.90.

Response

[14]The respondent asserts the photographs filed in the Tribunal show the foot pedals have not been properly cleaned or maintained.  The manufacturer suggested to the respondent dogs have urinated on the pedals causing them to rust.  Alternatively, it was suggested, the condition may have been caused by chemicals used in cleaning.

[15]Prior to receiving the applicant’s complaint, the respondent asserts, it has not received a complaint about pedals rusting.

[16]The photographs filed in the Tribunal show scratching of the stainless-steel bath.  Additionally, rusting is seen elsewhere in the photographs.

Additional documents

[17]The applicant filed a folder containing numerous additional documents, including:

(a)     colour photographs of the animal bath; and

(b)     a statement by Scott Wilmer, a carpenter who renovated, upgraded, and maintained the applicant’s salon.  The salon, he states, was impacted by the 2022 Brisbane flood.  The flood, however, did not damage the contents of the salon.

[18]The folder also contains end of day cleaning procedures and a statement by “Miss B. C.”  She states she purchased an animal bath from the respondent in 2018.  The foot pedals rusted off during the first year after purchase.  The respondent asserted to her the rusting was due to dogs urinating on the pedals and rusting of the bath was because it had not been properly dried.

Hearing

[19]The application was heard by the Tribunal on 13 June 2023.

[20]Ms Allsop appeared on behalf of the applicant in person.  Mr McLeod appeared on behalf of the respondent, by telephone.

[21]Ms Allsop outlined, in detail, the chronology of events leading up to the filing of the application.  She conceded the respondent was not consulted about retaining LMATS or the brief provided to it and, hence, the applicant is not entitled to recover the cost of the report.  The cost may be put to one side.

[22]The bath, nearly 4 years after it was purchased, is still being used by the applicant in its salon, Ms Allsop stated.  It has not been repaired and the condition of the bath has continued to deteriorate.

[23]Mr McLeod again asserted the condition of foot pedals is as a result of dogs urinating on them and chemicals used in the salon.  LMATS did not investigate and report on whether those matters are the cause of the condition of the petals.  They were not cleaned or maintained.

[24]Reference was made to Facebook posts showing dogs unrestrained in the applicant’s salon.  The dogs, Ms Allsop asserted, belonged to members of staff.  Dogs did not urinate on the foot petals.

[25]The LMATS report, the applicant asserted, shows the bath is constructed with inferior materials.

Discussion

[26]The issue to be determined by the Tribunal is whether the applicant to is entitled to a refund of the cost of the animal bath it having first demanded a refund nearly two years after purchasing the bath[2] and it having used the bath thereafter and continued to use it until the present day, nearly three years after the bath was purchased.

[2]Letter applicant’s lawyers to the respondent dated 20 June 2022.

[27]The respondent asserts the failure of the foot pedals was due to dogs urinating on them, and chemicals used in the salon.  I reject the assertions.  The extent of the rusting, not only of the pedals but also elsewhere, supports the view it is as a result of inferior materials used in the construction of the bath, as found by LMATS.

[28]Having said that, it is clear from the photographs filed in the Tribunal, and I so find, the applicant has not taken any or any adequate steps to maintain or repair the animal bath with the consequence and with ongoing use, it has continued to deteriorate.

[29]The applicant is a consumer within that the meaning of the Australian Consumer Law (Queensland) (ACL) and is entitled to the benefit of the consumer guarantee in section 54, a guarantee the goods are of acceptable quality.  Goods are of acceptable quality if they are:

(a)     fit for all the purposes for which goods of that kind are commonly supplied; and

(b)     acceptable in appearance and finish; and

(c)     free from defects; and

(d)     safe; and

(e)     durable,

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).[3]  Those matters are:

(a)     the nature of the goods; and

(b)     the price of the goods (if relevant); and

(c)     any statements made about the goods on any packaging or label on the goods; and

(d)     any representation made about the goods by the supplier or manufacturer of the goods; and

(e)     any other relevant circumstances relating to the supply of the goods.[4]

[3]Section 54(2) of the ACL.

[4]Section 54(3) of the ACL.

[30]I am satisfied the animal bath was neither free from defects, safe or durable, and so find.

[31]Part 5.4 of the ACL provides remedies relating to guarantees.  If the failure to comply with the guarantee can be remedied and is not a major failure:

(a)     the consumer may require the supplier to remedy the failure within a reasonable time; or

(b)     if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may:

(i)otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii)subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.[5]

[5]Section 259(2) of the ACL.

[32]The applicant required the respondent to remedy the failure of the foot pedals.  However, it did not do so until about six months after the pedals “rusted off”.  The respondent refused to comply with the requirement.

[33]By virtue of section 259(3), if the failure to comply with a 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 for the rejection; or

(b)     by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

[34]A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a)     the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)     the goods depart in one or more significant respects:

(i)if they were supplied by description - from that description; or

(ii)if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or

(c)     the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)     the goods are unfit for a disclosed purpose that was made known to:

(i)the supplier of the goods; or

(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e)     the goods are not of acceptable quality because they are unsafe.[6]

[6]Section 260(2) of the ACL.

[35]A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:

(a)     the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and

(b)     the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[7]

[7]Section 260(2) of the ACL.

[36]The failure to comply with the guarantee in sections 54 of the ACL, I find, was a major failure within the meaning of section 260.  Clearly, the animal bath would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure.  Further, the bath is not of acceptable quality because it is unsafe.

[37]However, the applicant did not purport to reject the animal bath until 20 June 2022, the date on which its lawyers demanded repayment of the price paid for the bath, long after the rejection period for the bath ended.[8]  Indeed, the applicant has continued to use the bath until the present day.

[8]See section 262 of the ACL.

[38]It follows the applicants remedy is the cost to remedy the defects in the animal bath[9] or compensation for any reduction in the value of the bath below the price paid[10].  There was no evidence about the cost to remedy the defects in the bath, save for the cost to replace the foot pedals with a hand-held switch, or any reduction in the value of the bath.  The applicant, when alerted to the absence of such evidence, made a conscious decision to proceed notwithstanding.

[9]See section 259(2) of the ACL.

[10]See section 259(3)(b) of the ACL.

Summary of findings

[39]In summary, I find:

(a)     the applicant is a consumer within the meaning of the ACL and is entitled to the benefit of the consumer guarantee in section 54;

(b)     the respondent failed to comply with the guarantee;

(c)     the failure was a major failure;

(d)     the applicant was not entitled to reject the animal bath when it purported to do so the rejection period having ended; and

(e)     in the absence of evidence about the cost to remedy the defects in the animal bath, save for the cost to replace the foot pedals with a hand-held switch, or any reduction in the value of the bath, the applicant’s recovery is confined to the cost of the switch.

[40]Parties to a proceeding in the tribunal must bear the parties own costs for the proceeding, other than as provided under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling act.[11]  The tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.[12]  The interests of justice do not require the Tribunal to make an order the respondent pay the applicant’s lawyers’ costs in the sum of $110.00.

[11]Section 100 of the QCAT Act.

[12]Section 102 of the QCAT Act.

Decision

[41]The decision of the Tribunal is that the respondent pay to the applicant the cost to replace the foot pedals with the hand-held switch, $284.90, within 14 days of this order.