Chambers v Get Qualified Australia Pty Ltd

[2016] NSWCATCD 52

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Chambers v Get Qualified Australia Pty Ltd [2016] NSWCATCD 52
Hearing dates:	18 April
Decision date:	21 June 2016
Jurisdiction:	Consumer and Commercial Division
Before:	L Wilson, Senior Member
Decision:	1. Respondent to pay applicant $1,837.50
Catchwords:	Contract for supply of services – Discretionary refund – No discretionary policy – Cancelled contract within 24 hours – Unfair contract
Legislation Cited:	Fair Trading Act 1987 Australian Consumer Law
Category:	Principal judgment
Parties:	Gavin Chambers (applicant) Get Qualified Australia Pty Ltd (respondent)
Representation:	Applicant: in person Respondent: Alexandra Sella, head of training and assessment
File Number(s):	GEN 16/03342
Publication restriction:	Nil

REASONS FOR DECISION

1. The applicant is a self employed carpenter who in November 2015 was gathering information to apply for his Victorian builder’s licence. As part of these inquires the applicant looked at the respondent’s website, and considered enrolling in one of their courses to improve his licence application.

2. On 16 November 2015 he made an email inquiry with the respondent. The next day a sales representative from the respondent called the applicant and convinced him to enrol in one of their courses. The applicant gave evidence that he felt pressured during this phone call and was in a “very confused state of mind”. The sales representative offered the applicant a discount if he paid the entire course cost, which he did. It was $2,450. In fact he only had to pay 25% of the total course cost to enrol, but because of the pressure from the sales representative and the offer of a discount if he prepaid, he paid for the course in full. The course was the certificate 3 in carpentry.

3. The next day, being 18 November 2015, the Victorian Building Authority called the applicant and explained that he did not need the certificate 3 in carpentry. The applicant immediately called the sales representative back to cancel his enrolment. He could not reach her on the number she had given him.

4. He left messages and sent multiple emails to cancel his enrolment in the course he did not need to complete for his builder’s licence. Correspondence between the applicant and persons representing the respondent carried on for over a month, with no refund being offered to the applicant, only options to transfer the enrolment to another or to take up a different course.

5. The respondent has a discretionary refund policy which is not really a policy at all. Its terms cannot be found on its website nor in its ebook. The respondent explained that it means that if a student requests a refund within 7 days of enrolling, “a decision will be made under GQA’s Discretionary Guidelines within a 4 week period. If the Refund request proceedings, there will be a 25% administration fee applicable to the total cost plus any transaction processing fee”: page 1 of the applicant’s evidence.

6. As stated, there is no such “GQA’s Discretionary Guidelines”. The respondent explained during the hearing it is simply a matter for the respondent to decide if it will refund the student or not. The respondent accepted that the applicant only had to pay 25% to enrol and if he had, this is the total he would have lost when he cancelled his enrolment in the course.

7. The applicant attempted to cancel his enrolment less than 24 hours after enrolling. He followed the requests of the respondent when he finally contacted the respondent e.g. to fill out the grievance form as directed. However the respondent declined to refund him 75% of the $2,450 he paid only 24 hours before cancelling. There is no discretionary policy that the respondent can point to, to explain why the applicant’s request was rejected. The only basis for rejecting the request is that the applicant changed his mind and they do not refund for this reason.

8. The respondent provided, along with other evidence, its payment and refund policy which includes a heading on page 4 of 5, “Eligibility for a refund”. Under this heading it is stated “fees will only be refunded by GQA where a participant/ applicant: pays duplicate fees for one service, makes an overpayment…” Under the heading “Discretionary refunds” on the same page it states “GQA may, at its discretion, refund a fee for reasons other than those described above. GQA will advise the participant/ applicant to apply for a refund should this occur”. Under this heading it explains GQA will not refund fees merely because the applicant changes his mind.

9. In the notes from the respondent’s system it can be seen the sales representative who took the applicant’s full payment on 16 November 2015, made the note that “he said yesterday that he didn’t need it for his licence and would only make his application stronger”. This was entered on 19 November 2015.

The law

10. The Fair Trading Act 1987 incorporates the Australian Consumer Law into NSW law. Relevant sections are as follows:

27 The Australian Consumer Law text

The Australian Consumer Law text consists of:

(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth, and

(b) the regulations under section 139G of that Act.

28 Application of Australian Consumer Law

(1) The Australian Consumer Law text, as in force from time to time:

(a) applies as a law of this jurisdiction, and

(b) as so applying may be referred to as the Australian Consumer Law (NSW), and

(c) as so applying is a part of this Act.

(2) This section has effect subject to sections 29, 30 and 31

30 Meaning of generic terms in Australian Consumer Law for purposes of this jurisdiction

…

(4) In Part 2-3 of the Australian Consumer Law (NSW), court includes the Tribunal.

(5) Subsections (2)–(4) are subject to any jurisdictional limits on the court concerned or the Tribunal imposed by any other Act.

32 Application of Australian Consumer Law

(1) The Australian Consumer Law (NSW) applies to and in relation to:

(a) persons carrying on business within this jurisdiction, or

(b) bodies corporate incorporated or registered under the law of this jurisdiction, or

(c) persons ordinarily resident in this jurisdiction, or

(d) persons otherwise connected with this jurisdiction.

(2) Subject to subsection (1), the Australian Consumer Law (NSW) extends to conduct, and other acts, matters and things, occurring or existing outside or partly outside this jurisdiction (whether within or outside Australia).

11. Section 2 of the ACL defines "unfair ", in relation to a term of a consumer contract: see section 24(1).

12. Sections 23 and 24 of the ACL are as follows:

23 Unfair terms of consumer contracts

(1) A term of a consumer contract is void if:

(a) the term is unfair; and

(b) the contract is a standard form contract.

(2) The contract continues to bind the parties if it is capable of operating without the unfair term.

(3) A consumer contract is a contract for:

(a) a supply of goods or services; or

(b) a sale or grant of an interest in land;

to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.

24 Meaning of unfair

(1) A term of a consumer contract is unfair if:

(a) it would cause a significant imbalance in the parties' rights and obligations arising under the contract; and

(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

(2) In determining whether a term of a consumer contract is unfair under subsection (1), a court may take into account such matters as it thinks relevant, but must take into account the following:

(a) the extent to which the term is transparent;

(b) the contract as a whole.

(3) A term is transparent if the term is:

(a) expressed in reasonably plain language; and

(b) legible; and

(c) presented clearly; and

(d) readily available to any party affected by the term.

(4) For the purposes of subsection (1)(b), a term of a consumer contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise.

13. The Consumer Law applies to the respondent as it is incorporated or registered under the law of this jurisdiction.

Findings

14. The contract between the parties is a consumer contract.

15. The respondent alleges that a term of that contract is “if the applicant pays in full, when only required to pay a 25% deposit to enrol, the respondent does not have to refund any of the full payment unless in its absolute discretion it decides that it wants to.”

16. I find such a term is unfair. If this term was permitted to be in the contract, it would cause a significant imbalance in the parties' rights and obligations arising under the contract. I find that this term is not reasonably necessary to protect the legitimate interests of the respondent. I find that it would cause financial detriment to the applicant if it were to be applied or relied on.

17. The term is not transparent. It is not expressly included in any publicly available document or website. I take into account the contract as a whole, which only requires an applicant to pay 25% to enrol, and not the full cost of the course. The term is not readily available to any party affected by the term.

18. The applicant would also succeed in having his 75% of the $2,450 paid under contract law. The refund policy of the respondent states that an applicant is eligible for a refund if he makes an overpayment. In my opinion he did overpay the respondent, as he only had to pay 25% of the course fee not the full amount which he did. To do so could be classified an overpayment and he is eligible for a refund under the respondent’s own refund policy.

19. The respondent must refund the applicant $1,837.50 immediately. The respondent is entitled to keep the 25% deposit.

L Wilson

Senior Member

Civil and Administrative Tribunal of New South Wales

21 June 2016

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: 11 August 2016