Coverall NSW Pty Limited v Chaw

District Court

New South Wales

Medium Neutral Citation:

Coverall NSW Pty Limited v Chaw [2013] NSWDC 59

Hearing dates:

21-22 January 2013

Decision date:

22 January 2013

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

1. Appeal is dismissed.

2. Affirm the decision of the Tribunal.

3. The plaintiff to pay the defendant's costs, those costs not to include any charges for time spent in preparation for the hearing or at the hearing by the defendant personally other than costs which might properly be classified as a disbursement.

4. The exhibits to be returned.

Catchwords:

APPEAL FROM CONSUMER TRADER AND TENANCY TRIBUNAL - "consumer" - "supplier" - "goods" - "services" - "consumer claim" - jurisdiction - costs of self-represented party

Legislation Cited:

Competition and Consumer Act 2010 (Cth), s 86
Consumer Claims Act 1998, s 3, s 3A, s 4, s 7, s 13
Consumer, Trader and Tenancy Tribunal Act 2001, s 5, s 21

Cases Cited:

Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Everett v Neale [2012] NSWDC 73
Everett v Neale [2012] NSWDC 83
Preston v Commissioner of Fair Trading [2011] NSWCA 40

Category:

Principal judgment

Parties:

Coverall NSW Pty Limited (ACN 123 962 461) (plaintiff)
Chi Chaw (defendant)

Representation:

Ms J Petrolo (plaintiff)
HWL Ebsworth Lawyers (plaintiff)
Self-represented (defendant)

File Number(s):

2012/300980

Publication restriction:

No

 Decision under appeal 

Date of Decision:

2012-09-03 00:00:00

Before:

C Paull

File Number(s):

GEN 12/22121

ex tempore Judgment

1. The defendant, Mr Chi Chaw, commenced proceedings against Coverall NSW Pty Limited ("Coverall") in the Consumer, Trader and Tenancy Tribunal ("the Tribunal") alleging misleading conduct and claiming the sum of $25,537.63.

1. The Tribunal made an order in favour of Mr Chaw awarding him the sum of $20,000. Coverall as plaintiff appeals against this order, alleging a want of jurisdiction. This Court proposes to affirm the decision of the Tribunal.

BACKGROUND

1. The background facts are set out in the Tribunal's reasons:

"It is agreed that in early July 2011 the applicant and respondent entered into a franchise agreement whereby the applicant paid the respondent $25,000 and in return the respondent was to train the applicant to carry out cleaning services in commercial offices, provide the applicant with a client base, i.e. offices the applicant was to clean and with cleaning equipment. It is also agreed that the individual client would pay the respondent for the cleaning service. The applicant would invoice the respondent for the cleaning work he did each month and the respondent would pay the applicant. It is further agreed that the applicant did carry out this cleaning work during the months of July, August and September 2011. It is in dispute whether the applicant carried out any work in October 2011. It is agreed however that since October 2011 the applicant has not done any work under the franchise agreement."

1. The Tribunal member then found:

"In light of the above I am satisfied that the Tribunal has jurisdiction as the applicant is a "consumer", the respondent is a…