Czernyszow v Abbott - [2019] WASCA 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CZERNYSZOW -v- ABBOTT [2019] WASCA 212
CORAM:   QUINLAN CJ
MURPHY JA
VAUGHAN JA

HEARD:   23 DECEMBER 2019
DELIVERED          :   23 DECEMBER 2019
PUBLISHED           :   13 JANUARY 2020
FILE NO/S:   CACV 29 of 2019
BETWEEN:   TANYA CZERNYSZOW
Appellant
AND
ELIZABETH LUISA ABBOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   APP 41 of 2018

Catchwords:

Australian Consumer Law - Appeal from District Court - Whether primary judge erred in upholding the magistrate's finding - Magistrate found agreement was not a lay-by agreement pursuant to s 96(3) of the Australian Consumer Law - Turns on own facts

Legislation:

Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law, sch 2 s 96, sch 2 s 96(3)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	C Silver
Respondent	:	R R Joseph

Solicitors:

Appellant	:	Chad Silver & Associates
Respondent	:	HHG Legal Group

Case(s) referred to in decision(s):

Australia and New Zealand Banking Group Ltd v Manasseh [2016] WASCA 41
Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520
Czernyszow v Abbott [2019] WADC 17
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50; (2003) 128 FCR 1
Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93

REASONS OF THE COURT:

Overview

The Australian Consumer Law[1] provides consumers with certain statutory rights when they enter into a 'lay-by agreement'. Importantly, by s 97(1) of the ACL, a consumer who is party to a lay-by agreement may terminate the agreement at any time before the goods to which the agreement relates are delivered to the consumer under the agreement. On termination the supplier must refund all amounts paid by the consumer under the agreement less any permitted termination charge.[2] Also, the supplier is not entitled to damages, or to enforce any other remedy, in relation to the termination except as provided for in s 99 of the ACL.[3]
[1] See Competition and Consumer Act 2010 (Cth), sch 2. Referred to below as the 'ACL'.
[2] ACL s 99(1). The 'termination charge' must be no more than the supplier's reasonable costs in relation to the agreement (s 97(3)). Moreover, the supplier must ensure that the agreement does not require payment of a termination charge unless (1) the agreement is terminated by the consumer; and (2) the supplier has not breached the agreement (s 97(2)).
[3] ACL s 99(3).
Section 96(3) of the ACL defines a lay-by agreement in these terms:
A lay-by agreement is an agreement between a supplier of goods and a consumer for the supply, in trade or commerce, of the goods on terms (whether express or implied) which provide that:
(a)the goods will not be…

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 Czernyszow v Abbott

Details

AGLC: Czernyszow v Abbott [2019] WASCA 212
Case: [2019] WASCA 212
Decision Date: 13 JANUARY 2020

CaseChat Overview and Summary

The matter of Czernyszow v Abbott came before the court on appeal from the District Court. The primary dispute revolves around the interpretation and application of section 96(3) of the Australian Consumer Law concerning whether an agreement between the parties was a lay-by agreement. The initial determination by the magistrate found that the agreement was not a lay-by agreement, a finding upheld by the primary judge.

The legal issues central to this appeal pertain to the correct interpretation of section 96(3) of the Australian Consumer Law and the specific criteria that must be met to classify an agreement as a lay-by. The central question was whether the primary judge erred in upholding the magistrate's finding that the agreement did not constitute a lay-by agreement under the statute.

The court undertook a detailed analysis of the relevant statutory provisions and case law. It considered the nature of lay-by agreements, which typically involve a deposit and subsequent instalments for goods or services. The court found that the primary judge correctly applied the statutory criteria and that the agreement in question did not meet the specific requirements of a lay-by agreement. Consequently, the court upheld the primary judge's decision, affirming that the magistrate's finding was correct.

Given the outcome, the appeal was dismissed, and the lower court's findings were affirmed. The agreement was correctly determined not to be a lay-by agreement under the Australian Consumer Law.

Orders