Gold v Cahill

[2023] NSWCATCD 77

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gold v Cahill [2023] NSWCATCD 77

Hearing dates:

02 June 2023

Date of orders:

05 July 2023

Decision date:

05 July 2023

Jurisdiction:

Consumer and Commercial Division

Before:

J Drennan, General Member

Decision:

1. The respondent Simon Cahill aka Simon William is to pay the applicant Danielle Gold $7322.00 immediately.

Catchwords:

CONSUMER- Breach of Consumer Guarantees – Compensation.

Legislation Cited:

NSW Civil & Administrative Act 2013

Australian Consumer Law (ACL)

Surveillance Devices Act 2007

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Danielle Gold
Simon Cahill (aka Simon William)

Representation:

The parties represented themselves.

File Number(s):

GEN 23/00732

Publication restriction:

Unrestricted

REASONS FOR DECISION

Background

1. This is a claim made by Danielle Gold who alleges that hair treatments/services provided to her own hair by Simon Cahill were not performed with due care and skill. She claims a refund of all monies paid and compensation in the sum of $12920.75 to rectify the condition of her hair.

2. Simon Cahill denies the claim. Mr Cahill made no submissions and provided no documents.

The Proceedings

3. This matter was listed before me on 2 June 2023 for a formal hearing having had two earlier listing dates. At the first hearing the matter was listed for conciliation as is the normal practice of the Tribunal. The matter did not settle. On the second occasion the applicant arrived on the hearing day 22 March 2023 and presented documents. The respondent received a copy of those documents the day prior to the hearing and the presiding Member determined that an adjournment was appropriate in the interests of procedural fairness.

4. At the final hearing on 2 June 2023, the respondent arrived and asked for an adjournment. The respondent at this stage had provided no documents despite having been given extra time by the member on the previous occasion. Some discussions ensued and ultimately the parties, who both wished for the matter to be expeditiously resolved, were given the opportunity to provide any further documents prior to the matter possibly being heard on the papers with relevant directions made for that purpose. This course of action was taken by me to ensure adherence with the guiding principle of the NSW Civil & Administrative Act 2013:-

“36   Guiding principle to be applied to practice and procedure

(1)  The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

5. Pursuant to the directions made by me on 2 June 2023 Ms Gold provided a quote to rectify alleged defective works. Mr Cahill did not provide submissions about the matter being heard on the papers, did not provide submissions as to the substantive matter and provided no documents to the Tribunal.

Agreed Facts

6. Simon Cahill performed the services (as a hairdresser) to Danielle Gold’s hair from 1 June 2022 to 9 July 2022 inclusive of alleged rectification attempts.

7. The nature of the works was to bleach the hair and provide hair extensions. The cost of this work was $1091.75 (proof of payments provided).

8. Mr Cahill has refunded $540.00 to Ms Gold to date.

JURISDICTION

9. I find that the facts demonstrate to me that this is a consumer claim brought within time pursuant to the Australian Consumer Law (ACL) regarding an alleged breach of the consumer guarantee - Section 60. The claim falls within the monetary jurisdictional limit. I find that the Tribunal has jurisdiction to hear this matter.

10. Simon Cahill (the respondent) appeared at the Tribunal on 22 March 2023 and on 2 June 2023 and provided his email address which is ’Simonwilliam@.....’ . Mr Cahill provided Ms Gold with a copy of his current ‘Certificate of Currency’ (Insurance policy covering Simon William) see 4-4A in the applicants’ evidence bundle. The appointments at the salon are acknowledged by a text message as being appointments with Simon William (see page 18 in the applicants’ evidence bundle). I find that Simon Cahill is also known as Simon William.

THE EVIDENCE

11. Danielle Gold provides a submission, photographs, a statutory declaration by another hair dresser, tax receipts for work performed by Langdon Hair and a quote, a ‘recording’, a USB stick, Simon William Certificate of Currency. On 16 June 2023 she also provided a quote from Langdon hair dated 15 June 2023.

12. Simon Cahill provided no evidence despite the fact that the Tribunal extended him a further opportunity to provide documents at the hearing on 2 June 2023.

Danielle Gold’s case (summarised)

13. Ms Gold said that Mr Cahill was consulted for an assessment to provide hair extensions and for a platinum blonde full all over colour. She said that Mr Cahill determined that her hair was suitable for such treatment. On 1 June 2022 she attended for the first treatment. Ms Gold asserts that something went wrong with the bleaching process (part one of the service) and she was left with noticeable yellow banding. Ms Gold said that Simon Cahill then proceeded with the second stage of the process to install the extensions.

14. Ms Gold was not happy with the work, saying that the banding could be seen, the extensions could be seen, and she attended 3 more times in seven days to have these issues rectified. Ms Gold said that she told Mr Cahill that the extensions were breaking her hair.

15. After more toner treatment and another week Ms Gold attended again and Mr Cahill offered to install more extensions which Ms Gold says were the wrong type and after they were installed they were difficult to brush and could be seen.

16. Ms Gold said that ultimately, with all the treatments and rectifications her hair became dry and matted and gaps appeared.

17. Ms Gold claims that her hair is now damaged, and another salon is treating it for breakage, matting and gaps.

18. Mr Gold provides an image of her hair prior to the treatment and an image of her hair when the offending extensions were finally removed.

19. Ms Gold provides a statutory declaration of Louise Graffi – a hairdresser, who states she had seen Ms Gold's hair prior to the Cahill treatment saying it was ‘in good shoulder length condition and predominantly all one length’. Ms Graffi summarises the condition of Ms Golds hair after the Cahill treatment by the following statement:-

“in my professional opinion that the services completed on Danielle's hair were severely damaging causing large loss of hair quantity, bulk and length.” [sic]

20. Ms Gold also provides a quote from Langdon hair and receipts for work performed by them after the Cahill treatments.

21. Ms Gold said that when the treatment of her hair caused her hair to become damaged that Mr Cahill recommended a wig.

Simon Cahill’s (summarised)

22. Mr Cahill did not make any submissions and did not provide any documents to the applicant or the Tribunal. Therefore the only information I have upon which to make a determination is that which is provided by the applicant.

CONSIDERATION AND FINDINGS

23. I determine that a hearing is dispensed with – see Section 50 (2) of the CAT Act. I afforded the parties an opportunity to make submissions about the proposed order to hear the matter on the papers and no submissions were received. It is appropriate for this matter to be determined on the papers.

24. I make the following finding about the recordings made and presented by the applicant in her evidence bundle. I find that the applicant does not provide any information about consent for these recordings. I have not read the alleged transcript of any recordings, nor have I listened to them because I have not been provided with proof of consent. See the Surveillance Devices Act 2007.

11   Prohibition on communication or publication of private conversations or recordings of activities

(1)  A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

25. Notwithstanding this I believe that any such recording would have little or no bearing on the outcome of this case which revolves around an alleged breach of the consumer guarantees. The question to be answered is whether the work was performed with due care and skill.

26. Based on the evidence provided by the applicant I find that Mr Cahill has not performed the works provided with due care and skill and that this represents a breach of Section 60 of the ACL:-

60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

27. I give significant weight to the Statutory declaration of Louise Graffi who is a hairdresser who saw the applicant’s hair prior to the treatments. I accept her evidence that the works performed have damaged the applicant’s hair, and caused a large loss of hair quality, bulk and length.

28. In this set of circumstances, Ms Gold asks for a refund of the monies paid to Mr Cahill for the services and for compensation to restore her hair to its pre-treatment condition.

29. Section 267 of the ACL provides the remedy available when a trader is found to have breached a consumer guarantee. According to Section 267 (2) (a) the consumer can require the trader to remedy the failure to comply with the guarantee. In this case Ms Gold says that Mr Cahill did try to remediate her hair problems after the treatments to no avail. I accept that he did try to remedy the problems with her hair however the evidence shows that a remedy has not eventuated.

30. In the case where a trader has not been able to remedy the failure of the guarantee within a reasonable time Ms Gold may otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied see section 267(2)(b)(i) of the ACL.

31. There is no entitlement to a refund of amounts paid for work. Notwithstanding this I note that Mr Cahill did provide a part refund and I take that amount of $540.00 into account when I determine the amount payable below.

32. The evidence shows that between 2 June 2022 and 27 June 2023 the amount paid to Mr Cahill for the treatments was $1091.75.

33. I do not make any allowance for silk pillow cases bought by the applicant as there is no evidence to support the assertion that they were necessary for her recovery.

34. The amount paid thus far to Langdon Hair is problematic in that they advise that they do not wish to comment or give any evidence to the Tribunal about their services to restore the hair of Ms Gold. Because there is no evidence that the treatments contained on pages 20 through 27B are treatments aimed at rectifying the damage, I cannot award Ms Gold any of these amounts. Not only is evidence not available that the treatments were required to rectify the hair damage there is also no explanation from Langdon Hair about the components of their treatments that were required for rectification as distinguished from any other treatment.

35. I have been provided with a quote from Langdon hair as to what it will cost to repair Ms Gold's hair moving forward. I accept this document and find on the balance of probabilities that it states that the cost of the services that would be required to restore the hair over 24 months is $7862. I accept that this would be the reasonable cost to restore her hair in the absence of any evidence to the contrary.

36. Mr Cahill has already refunded $540. I take this amount away from the sum at 35 above and find that the amount owing to repair the damage less amount already refunded is $7322.00.

Orders

1. Simon Cahill aka Simon William is to pay Danielle Gold $7322.00 Immediately.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 September 2023