De Coster v Wynstan Designs

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

De Coster v Wynstan Designs [2022] NSWCATCD 94

Hearing dates:

29 March 2022

Date of orders:

01 June 2022

Decision date:

01 June 2022

Jurisdiction:

Consumer and Commercial Division

Before:

S Sutherland, Member

Decision:

1. The respondent, Wynstan Designs Pty Ltd is to pay David De Coster & Sally Armati the sum of $4,200 by 15 June, 2022.

2. The power shade awning is returned to the respondent

Catchwords:

CONSUMER CLAIM – Defective Goods – Repair whether to acceptable quality - Major failure

Legislation Cited:

Fair Trading Act, 1987 (NSW)

Australian Consumer Law (NSW)

Cases Cited:

Sky Mesh Pty Ltd v Ipstar Australia Pty Ltd [2016] NSWSC 1898;

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145;

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672;

Smith v Ozzy's Cheapest Cars Pty Ltd [2019] NSWCATAP 278.

Texts Cited:

Nil

Category:

Principal judgment

Parties:

David De Coster & Sally Armati (Applicants)
Wynstan Designs Pty Ltd (Respondent)

Representation:

Applicant (Self-represented)
D Collins (Respondent)

File Number(s):

GEN 22/07190

Publication restriction:

Nil

REASONS FOR DECISION

1. This is a claim by the applicant for the amount of $4,200 for a defective power shade awning that initially fell apart and then was returned to the respondent for rectification. The applicant claims that the repair did not fix the defects and the seams of the awning are puffing, bubbling, rippling and are unsightly and the produce is not of acceptable quality. The claim is brought pursuant to Section 54 of Australian Consumer Law (NSW).

Jurisdiction

2. The claim is brought as a consumer claim pursuant to Part 6A of the fair Trading Act, 1987. I am satisfied that the applicant is a consumer, the claim is a consumer claim and the amount of the claim does not exceed $40,000. The Tribunal has jurisdiction to hear the claim

Procedural history

3. On 9 November 2021 the claim was dismissed for the non-appearance of the applicant, the claim was subsequently re-instated. On 17 January 2022 the matter came before the Tribunal and was dismissed for non-appearance of the applicants and again re-instated.

4. The documents of the applicant are marked Exhibit A1 including coloured photographs of the awning and the documents of the respondent are marked Exhibit R1.

5. On 5 November 2020 the applicants received a quotation for the awnings from the respondent. They accepted the quotation and on 11 November 2020 paid a deposit. On 21 November 2020 the swing arm awning was installed. On 1 February 2021 the respondent was advised of the delamination at seams and that the awning was falling apart.

6. On 3 February 2021 the swing arm awning was removed and returned with significant rippling of the material at the seams.

7. On 26 March 2021 the product was re-installed and the applicants called the respondent that the product still had the rippling effect in the awning. On 28 March 2021 the respondent was emailed and…