EXCEL INTELLIGENT PTY LTD v THOMSON (Appeal) [2018] ACAT 4
AA 13/2017 (XD 433/2016)
Catchwords: APPEAL – civil dispute – Australian Consumer Law – components of a garage purchased online from appellant – purchaser advised by person assembling the product that it was flimsy and not structurally sound – Original Tribunal held that purchased product was not of acceptable quality as a garage – appeal – appeal conducted as a review of the decision of the Original Tribunal, with some additional engineering evidence provided by the appellant – role of Appeal Tribunal on a review or rehearing
2.Within 28 days from the date of this order, Excel Intelligent Pty Ltd pay Jean Thomson $3,037.30, comprised of:
(a)$1,799.00 by way of refund of the purchase price;
(b)$199.00 by way of refund of the freight charge for the subject goods;
(c)$140.30 for Ms Thomson’s costs of delivering the subject goods from the delivery depot to her address;
(d)$750.00 for Mr Arizapa’s costs of assembling and dismantling the structure;
(e)$140.00 for the filing fee; and
(f)$9.00 for the search fee.
………………………………..
President G Neate AM
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.Excel Intelligent Pty Ltd (Excel/the appellant) appeals against a decision of a presidential member of the ACT Civil and Administrative Tribunal (the Original Tribunal) ordering the appellant to pay Jean Thomson…
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.
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Details
AGLC
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Case
[2018] ACAT 4
Decision Date
CaseChat Overview and Summary
Excel Intelligent Pty Ltd sought to appeal an earlier decision of the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) that ordered the company to refund certain payments made by Jean Thomson. The ASBFEO had determined that Excel Intelligent Pty Ltd had breached the Australian Consumer Law by failing to supply goods that were of acceptable quality. The dispute was ultimately heard by the Federal Circuit and Family Court of Australia.
The central legal issue before the court was whether the ASBFEO was correct in finding that Excel Intelligent Pty Ltd had failed to supply goods that were of acceptable quality. The court was required to consider whether the ASBFEO's decision was legally sound, and whether it was open to the ASBFEO to make the orders it did. The court also needed to determine whether there were any errors in the ASBFEO's calculation of the amount of the refund.
The court found that the ASBFEO was correct in finding that Excel Intelligent Pty Ltd had failed to supply goods of acceptable quality. The court held that the ASBFEO's decision was legally sound and that it was open to the ASBFEO to make the orders it did. The court also found that there were no errors in the ASBFEO's calculation of the amount of the refund. The court dismissed the appeal and ordered Excel Intelligent Pty Ltd to pay Jean Thomson the amount determined by the ASBFEO, plus costs and fees.
Orders
Orders of the court
The Tribunal orders that:
1. The appeal is dismissed.
2. Within 28 days from the date of this order, Excel Intelligent Pty Ltd pay Jean Thomson $3,037.30, comprised of:
(a) $1,799.00 by way of refund of the purchase price;
(b) $199.00 by way of refund of the freight charge for the subject goods;
(c) $140.30 for Ms Thomson’s costs of delivering the subject goods from the delivery depot to her address;
(d) $750.00 for Mr Arizapa’s costs of assembling and dismantling the structure;