Cohen v Woolworths Ltd - [2018] NSWCATCD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Cohen v Woolworths Ltd [2018] NSWCATCD 11
Hearing dates: 12 March 2018
Date of orders: 24 April 2018
Decision date: 24 April 2018
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1 The Respondent, Woolworths Ltd, 1 Woolworths Way Bella Vista NSW 2153 Australia, is to pay the Applicant, Peter Cohen, 10 Freya Crescent Shalvey NSW 2770 Australia, the sum of $2,316.50 within 14 days of the date of these orders.

2 The claim is otherwise dismissed.

Catchwords:
CONSUMER CLAIM – alleged supply of particle contaminated fuel – where contamination caused motor vehicle engine failure – claim for costs of cleaning fuel lines and engine repairs – claim for travel costs during period motor vehicle inoperative
COSTS – special circumstances – cost of fuel analysis report
Legislation Cited: Australian Consumer Law (NSW)
Civil and Administrative Tribunal Act 2013
Fair Trading Act 1987
Fuel Standards Management Act 2000
Cases Cited: Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75
Briginshaw v Briginshaw (1938) 60 CLR 336
CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21
eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94
Farquar & Farquar (No. 2) [2008] FamCA 682
Hadley v Baxendale [1854] 9 Ex 341
Medtel Pty Limited v Courtney 198 ALR 630
Miller v Minister for Pensions [1947] 2 All ER 372
Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41
Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (No.2) [2016] NSWCATAP 168
Category: Principal judgment
Parties: Mr Peter Cohen (applicant)
Woolworths Ltd (respondent)
Representation: Applicant in person
Mr Soham Lakhia, Acting Supply Chain Manager, for Respondent

File Number(s): GEN 17/45137
Publication restriction: Nil

REASONS FOR DECISION

This is an application by Peter Cohen (the applicant) for an Order from the Tribunal pursuant to section 79N of the Fair Trading Act 1987 (FT Act) that will require Woolworths Ltd (the respondent) to pay him the sum of $2,532.78 being compensation for motor vehicle repair and travels costs he incurred because of damage to his motor vehicle which was allegedly caused by particle contaminated fuel supplied to him by the respondent. The applicant also seeks an order pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that would require the respondent to pay his costs of obtaining a fuel analysis report which he contends was necessary for him to prove his claim before the Tribunal, which was $115.01. This application was made to the Tribunal on 23 October 2017 (the application).
For reasons that are set out following, the Tribunal has determined on the evidence before it that the fuel supplied by the respondent to the applicant on 25 July 2017 was not of acceptable quality contrary to the consumer guarantee contained in section 54 of the Australian Consumer Law (ACL

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 Cohen v Woolworths Ltd

Details

AGLC: Cohen v Woolworths Ltd [2018] NSWCATCD 11
Case: [2018] NSWCATCD 11
Decision Date: 24 April 2018

CaseChat Overview and Summary

The case of Cohen v Woolworths Ltd involved the applicant, Peter Cohen, who sought compensation from Woolworths Ltd for alleged contamination of fuel supplied at one of their petrol stations. The contamination resulted in motor vehicle engine failure, necessitating cleaning of the fuel lines and engine repairs. Cohen also claimed travel costs incurred while his vehicle was inoperative. The dispute was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the fuel supplied by Woolworths contained particles that caused the engine failure, and if so, whether Woolworths was liable for the resulting costs. The court had to consider the evidence regarding the condition of the fuel, the cause of the engine failure, and the expenses claimed by Cohen. Additionally, the court addressed the issue of special circumstances regarding the cost of the fuel analysis report.

The court found that the fuel supplied by Woolworths contained particles that caused the engine failure, and therefore, Woolworths was liable for the expenses incurred by Cohen. The court held that the evidence demonstrated a causal link between the contaminated fuel and the engine failure. Regarding the special circumstances, the court determined that the cost of the fuel analysis report was necessary and reasonable, and thus, it was appropriate to include it in the costs. Consequently, the court ordered Woolworths to pay Cohen the sum of $2,316.50 within 14 days of the date of the orders, and dismissed the remainder of the claim.

Orders

Orders of the court

1 The Respondent, Woolworths Ltd, 1 Woolworths Way Bella Vista NSW 2153 Australia, is to pay the Applicant, Peter Cohen, 10 Freya Crescent Shalvey NSW 2770 Australia, the sum of $2,316.50 within 14 days of the date of these orders.

2 The claim is otherwise dismissed.

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:	Cohen v Woolworths Ltd [2018] NSWCATCD 11
Hearing dates:	12 March 2018
Date of orders:	24 April 2018
Decision date:	24 April 2018
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1 The Respondent, Woolworths Ltd, 1 Woolworths Way Bella Vista NSW 2153 Australia, is to pay the Applicant, Peter Cohen, 10 Freya Crescent Shalvey NSW 2770 Australia, the sum of $2,316.50 within 14 days of the date of these orders. 2 The claim is otherwise dismissed.
Catchwords:	CONSUMER CLAIM – alleged supply of particle contaminated fuel – where contamination caused motor vehicle engine failure – claim for costs of cleaning fuel lines and engine repairs – claim for travel costs during period motor vehicle inoperative COSTS – special circumstances – cost of fuel analysis report
Legislation Cited:	Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Fuel Standards Management Act 2000
Cases Cited:	Alexander James Pty Ltd v Pozetu Pty Ltd (No. 2) [2016] NSWCATAP 75 Briginshaw v Briginshaw (1938) 60 CLR 336 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 eMove Pty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Farquar & Farquar (No. 2) [2008] FamCA 682 Hadley v Baxendale [1854] 9 Ex 341 Medtel Pty Limited v Courtney 198 ALR 630 Miller v Minister for Pensions [1947] 2 All ER 372 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Nguyen & Anor v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen & Anor (No.2) [2016] NSWCATAP 168
Category:	Principal judgment
Parties:	Mr Peter Cohen (applicant) Woolworths Ltd (respondent)
Representation:	Applicant in person Mr Soham Lakhia, Acting Supply Chain Manager, for Respondent
File Number(s):	GEN 17/45137
Publication restriction:	Nil