Jayasooriah v Moore Park Supa Pty Ltd

[2025] NSWCATCD 88

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Jayasooriah v Moore Park Supa Pty Ltd [2025] NSWCATCD 88

Hearing dates:

08 May 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Jurisdiction:

Consumer and Commercial Division

Before:

P Gardner, Senior Member

Decision:

(1)   Within 7 days of these orders, the Applicant is to notify both respondents, by email, whether he wishes to retrieve either the First TV or the Second TV (but not both).

(2)   If the Applicant gives notice in accordance with these orders that he wishes to retrieve the First TV, the First Respondent is to make the First TV available to the Applicant to retrieve at his own cost on at least 3 days’ notice during business hours on a date no later than 02-Jul-2025. The First Respondent is not required to transfer or deliver the First TV to the Applicant.

(3)   If the Applicant gives notice in accordance with these orders that he wishes to retrieve the Second TV, the First Respondent is to make the Second TV available to the Applicant to retrieve at his own cost on at least 3 days’ notice during business hours on a date no later than 02-Jul-2025. The Second Respondent is not required to transfer or deliver the Second TV to the Applicant.

(4)   The First Respondent and Second Respondent may retain or dispose (in whatever manner they see fit) of the First TV and Second TV (as appropriate) if they are not collected by the Applicant by 02-Jul-2025 in accordance with these orders.

(5)   The application is otherwise dismissed.

Catchwords:

CONSUMER LAW – Consumer guarantees under Australian Consumer Law – whether televisions of acceptable quality – whether repair services rendered with due care and skill – whether failure to comply with consumer guarantee a major failure – similar but not identical replacement offered and accepted – remedies available

Legislation Cited:

Competition and Consumer Act 2010 (Cth)

Fair Trading Act 1987 (NSW)

Cases Cited:

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 162

Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39

El-Mir & 1 Or v Risk [2005] NSWCA 215

Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733

Sacks v Hammoud [2016] NSWCATAP 225

Sierra v Underwater Australasia Pty Limited [2024] NSWCATAP 131

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Dr Jayasooriah (Applicant)
Moore Park Supa Pty Ltd (First Respondent)
LG Electronics Australia Pty Limited (Second Respondent)

Representation:

Applicant (self-represented)
R Nelson (Moore Park Supa Pty Ltd) (First Respondent)
L Filipo (LG Electronics Australia Pty Limited) (Second Respondent)

File Number(s):

2024/00404550

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. This is a consumer claim concerning two televisions, an LG G6 (First TV) and an LG G1 (Second TV), which were supplied to the Applicant by First Respondent and which are manufactured by the Second Respondent.

2. On 19-Dec-2017, the Applicant purchased the First TV from the First Respondent at a cost of $8,070 which includes some charges associated with a wall mount. It’s convenient to set out some events relating to the First TV. On:

1. 29-Nov-2018, the First Television had a fault with its power board, which was replaced under warranty. At this time, the First TV had been used for approximately 4,400 hours.

2. 15-Nov-2021, the First TV started showing two strings of “0” characters. The Applicant’s documents indicate that he understands this could have been “image burn” or a “screen mounting issue”.

3. 18-Nov-2021, the Applicant had the display panel in the First TV replaced. At this time, it had been used for approximately 9,397 hours.

4. 29-Nov-2021, the Applicant advised one or more of the respondents that the 3D panel was no longer working.

5. 14-Dec-2021, the Second Respondent advised the Applicant that 3D panels were no longer available.

3. In respect of the Second TV:

1. On 29-Dec-2021, the Second Respondent offered the Applicant the Second TV as a replacement for the First TV.

2. On 08-Feb-2022, the First Respondent removed the mount for the First TV from the Applicant’s home and installed the Second TV along with the mount for the same.

3. On the same day, the Applicant advised the First Respondent that he was concerned that “90 percent of the 700+ movies in his collection appear not to play” on the Second TV.

4. On 18-Feb-2022, the Applicant advised the First Respondent that the Second TV would power up intermittently.

5. The power issue referred to above is said to have recurred on a number of occasions, the dates of which are not material but the Second Respondent has also investigated on a number of occasions (03-Aug-2022, 19-Aug-2022 and 08-Nov-2022) and was initially unable to identify any fault.

6. On 11-Nov-2022, the Second Respondent replaced the main and power boards in the Second TV.

4. By application lodged on 31-Oct-2024 and as confirmed during the hearing, the Applicant seeks orders pursuant to s 79N of the Fair Trading Act 1987 (NSW) (FTA) for compensation of $8,070 or a lesser amount in the alternative as set out at paragraphs [54] – [57] of his submissions in reply dated 01-May-2025.

5. During the hearing, I put the Applicant on notice that I had understood his application as being claim that either or both of the First TV and the Second TV did not comply with s 54 of the Australian Consumer Law (ACL), which is set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth). The Applicant has not raised any other basis for his claim. For the reasons that follow, it is necessary to also consider s 60 of the ACL.

Evidence and Hearing

6. This application was heard by the Tribunal on 08-May-2025. During the hearing, the Applicant appeared via phone, the respondents representatives appeared in person. Each gave sworn evidence and was invited to ask questions of the other parties.

7. The Applicant’s documentary evidence is comprised of two bundles, received on 05-Mar-2025 and 05-May-2025. It includes:

1. Evidence of purchase of the First TV;

2. Email correspondence between the parties;

3. An extract from “flatpanelshd.com” arguing that LG OLED TVs should have a lifespan of 100,000 hours;

4. Some service reports from the company engaged by the Second Respondent to inspect/repair both TVs;

5. Some photographs (including of rows of “0”‘s which are faintly visible on the screen of the First TV); and

6. Written submissions.

8. The First Respondent’s documentary evidence includes:

1. Submissions in reply;

2. A copy of an invoice for purchase; and

3. Details of the Second TV supplied through a warranty claim.

9. The Second Respondent’s documentary evidence includes:

1. Written submissions in reply;

2. Service reports relating to both the First TV and Second TV;

3. Evidence in relation to repair and delivery of the Second TV; and

4. Storage fees for the First TV.

10. On 08-May-2025, the Applicant filed further documentary evidence. This was filed late and is comprised solely of a print out of a guide to consumer guarantees produced by Commonwealth Government. Leave to rely on this was refused. It adds nothing to the Applicant’s arguments.

11. During the hearing, the Applicant confirmed that if a money order was made he was of the view that the First Respondent should be required to pay. It should be noted that this is not apparent on the face of his documents.

Jurisdiction

12. The Tribunal has jurisdiction to hear and determine this consumer claim. This is because the Applicant is a “consumer” as defined by section 79D of the FTA and the claim is a “consumer claim” within the meaning of section 79E of the FTA. The application is in time and there is a connection with NSW, as the Applicant both resides and purchased the First Television in NSW. The application is also in time for the purpose of s 79L of the FTA.

13. In relation to s 79L of the FTA, the application is plainly in time as it relates to the Second TV. In relation to the First TV, the Applicant’s cause of action engages s 259(4) of the ACL.

14. As set out in Sacks v Hammoud [2016] NSWCATAP 225, this cause of action (a term which is unfortunately not defined in either the ACL or FTA) “first accrues”... “when facts which constitute the elements of the relevant cause of action crystallise or combine so that all the elements necessary to entitle a person to make a consumer claim are present.” (see: Sacks, [34]).

15. Here, my view is that the Applicant could not be said to have a cause of action pursuant to s 259(4) until such time as the First TV failed or he had evidence that it would fail. Accepting his chronology, an arguable claim in relation to the First TV is in time.

Relevant Law

16. In consumer claims, the burden of proof is on the Applicant to prove their claim on the balance of probabilities (the civil standard).

17. When making orders under s 79N of the FTA, the Tribunal must comply with its obligations under s 79U(1) of the FTA and ensure that those orders are fair and equitable to both parties to the claim.

18. Part 6A of the FTA sets out the Tribunal’s jurisdiction to hear and determine consumer claims, including where the cause of action (see: s 28 of the FTA) and/or remedy (see: s 70(2) of the FTA) arise under the ACL. In this case, if the Applicant can establish that the respondent has failed to comply with the guarantees in s 54 they can seek a remedy including damages pursuant to s 259 of the ACL.

19. The guarantee in s 54 of the ACL have been considered by the Appeal Panel in Sierra v Underwater Australasia Pty Limited [2024] NSWCATAP 131 at [34] to [46].

20. Section 54 of the ACL is a guarantee that goods will be of acceptable quality. The scope and nature of this guarantee have been considered in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 162 at [25] - [27] (Jayco), and by the Tribunal in Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 at [39] - [54].

21. Section 60 of the ACL provides that:

“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.”

22. The scope of this obligation has been the subject of consideration in Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733, where Garling J held at [409] to [410]:

“[409] This provision requires that the supplier of services to a consumer guarantees that the services will be rendered with due care and skill. The ultimate effect of this guarantee is that it precludes, in a consumer agreement, the capacity of the supplier of services to contract out of negligent conduct with respect to the supply of services.

[410] The use of the phrase “due care and skill” is a direct reference to the common law standard of negligence.”

23. This standard does not require that the services be rendered perfectly or without any defect. The standard is one which must be objectively determined by the Tribunal. This is most readily done with reference to how the respondent’s performance of the services differed or fell short from the manner in which a reasonably competent professional would have performed the same services.

24. In the event that a supplier fails to comply with the guarantee under s 60, the consumer’s remedies are set out under s 267 of the ACL. Where the failure is not a major failure, the consumer cannot commence a claim for damages without first giving the supplier a reasonable time to remedy the failure. In those circumstances, the supplier has the choice over the manner by which the failure is remedied (e.g. repair, replacement, compensation). If the supplier fails to remedy the breach within a reasonable time, if the breach is incapable of remedy or if the breach is a major failure to comply with the guarantee, the consumer may recover damages or costs to remedy the failure.

Applicant’s Submissions

25. In relation to the First TV, the Applicants’ issue is around the work undertaken to remedy the image burn or screen mounting issue which was addressed pursuant to a warranty claim. He argues that this work was inadequate because it left him with a television which did not have a 3D display.

26. He argues that the respondents did not comply with the ACL because the Second TV:

1. Does not have feature parity; and

2. Experienced intermittent electrical faults of the kind described at [3] in these reasons.

27. The Applicant argues that the First TV and Second TV do not have feature parity for two reasons. Firstly, the Second TV does not have a 3D display. Secondly, the Second TV does not support an audio codec known as DTS. This is said to be important to the Applicant, because he has a large collection of movies stored locally on a hard drive and the majority of those movies are stored in a manner that requires the device handling playback to be able to process audio streams that are encoded using DTS.

28. The Applicant accepts that he understood that the Second TV was not a 3D television, but submits that the respondents made representations that the Second TV was a “direct change over” and an “updated and current model” (see: Applicant’s submissions at [12]). During the hearing he gave evidence that the respondents represented to him that the Second TV had DTS support. This is inconsistent with his documentary evidence but I infer he means that he understood from their representations that the Second TV would support DTS.

29. In relation to the power board and intermittent power cycling issues, the Applicant argues that the Second TV had an intermittent fault and that this was difficult to have resolved. It was not until 11-Nov-2022 that the Second Respondent ultimately addressed this issue.

30. He further argues that he has, since at least 23-Feb-2022 (see: Applicant’s submissions at [31]), sought to reject the Second TV.

31. The Applicant argues that the Second TV was never an appropriate replacement for the First TV because it was not a replacement “of an identical type” (see: Applicant’s submissions at [25]). He argues that the Second TV is, itself, defective and that he has rejected it. In those circumstances, he seeks a full refund of the purchase price for the First TV.

First Respondent’s Submissions

32. The First Respondent does not materially contest the chronology of events put forward by the Applicant (and summarised at [2] – [3] in these reasons) but submits that in the circumstances the First Respondent has no liability to compensate the Applicant.

33. By way of brief summary, the First Respondent argues that:

1. The applicant had years of full use of the First TV;

2. A full refund is, given the years of use, unreasonable;

3. The Second TV was the best available alternative at the relevant time;

4. The price of the Second TV is largely irrelevant because pricing for televisions is deflationary over time;

5. While the Second TV does not support DTS audio, it is otherwise a far superior TV;

6. The Applicant’s new television (not the subject of the dispute), an LG G2, also does not support 3D display or DTS audio; and

7. The First Respondent has the First TV and has offered to return this to the Applicant.

Second Respondent’s Submissions

34. The Second Respondent does not materially contest the chronology of events put forward by the Applicant (and summarised at [2] – [3] in these reasons) but submits that in the circumstances the Second Respondent has no liability to compensate the Applicant.

35. In summary, the second respondent’s position is that the Applicant had full use of the First TV for around 5 years and that an identical replacement cannot be offered because 3D television display panels are no longer being manufactured. They argue that on realising that the Applicant had been provided with a 2D display panel during repairs to the First TV, the First Respondent offered the Second TV as a replacement and the Second Respondent offered compensation of $395. The Applicant chose the Second TV instead of the compensation. The Second Respondent accepts that their technician provided the wrong panel for the First TV but submits that a 3D panel could not have been provided at the time because none were in production. This is not an issue which they say is unique to the Second Respondent but is an industry wide development.

36. The Second TV was, at the relevant time, the most appropriate replacement model – it represented a high end offering manufactured by the Second Respondent. In this regard, the Second Respondent refers to s 263(4)(b) of the ACL, which obliges a supplier to provide a replacement for rejected goods “if such goods are reasonably available to the supplier”. The Second Respondent argues that in circumstances where a direct replacement for the First TV was not available, the offer of the Second TV was a suitable alternative replacement.

37. In relation to the First TV, the second respondent argues that they were not obliged to replace the display panel after the image burn in issue. They argue that this can occur through consistent display of bright text on the panel and is at least plausibly caused by the way in which the Applicant has used the First TV.

38. In relation to the Second TV, the second respondent argues that:

1. DTS support is not a general requirement, and is something specific to the Applicant which was not raised prior to his being offered the Second TV;

2. The Second TV is in good working order, having had its power board replaced.

39. The Second Respondent acknowledges that the power board issue affecting the Second TV took some time to investigate, diagnose and address but submits that this is in part because the Applicant refused to provide the Second TV to a workshop and because the fault was intermittent.

40. The Second Respondent argues that the effective lifespan of a TV of this kind is 7 – 10 years and that limited weight should be given to the Applicant’s assessment of the anticipated life (100,000 hours) for two reasons. Firstly, the source of that estimate is a Korean website and not a representation made by either respondent, secondly because there are methods by which an owner can reset or vary hours of usage. They suspect that this may have occurred in the Applicant’s case.

Issues for Determination

41. The issues for determination by the Tribunal are:

1. Has the Applicant established that the First TV is not of acceptable quality?

2. Has the Applicant established that the Second TV is not of acceptable quality?

3. Was either respondent required to offer the Applicant some remedy for some other failure to comply with of the ACL?

4. Was the remedy the respondents offered to the Applicant sufficient?

5. Is the Applicant entitled to reject the Second TV?

42. Each of those issues is addressed in turn below.

Has the Applicant established that the First TV is not of acceptable quality?

43. Yes, but this this failure to comply with s 54 of the ACL has been remedied and is not a major failure.

44. This is a decision to be made on the basis of evidence about the state of the First TV at the time of supply (see: Jayco at [27] per Wheelahan J).

45. The Applicant argues that the First TV was affected by the following faults:

1. A defective power supply; and

2. A defective 3D Panel.

46. I am satisfied that the defective power supply amounts to a breach by either or both of the First Respondent and Second Respondent of the guarantee in s 54 of the ACL because it caused the First TV to not be free from defects. There is no arguable dispute that this defect has been remedied by the Second Respondent in accordance with s 261(b) of the ACL. I am not persuaded that there was a major failure to comply with s 54 of the ACL in respect of this fault because it appears that the fault was proactively addressed by the Second Respondent and did not cause any material interruption to the applicant’s use of the First TV.

47. In respect of the defective 3D Panel, I note that I am referring to the panel which formed part of the First TV and not the replacement panel later installed by the Second Respondent.

46. In respect of the original 3D Panel, There is nothing that persuades me that this fault/issue is the result of a failure by either the First or Second Respondent to comply with the guarantee in s 54 of the ACL. I accept the submissions made by the Second Respondent that the persistent display of images on the screen may occur because a bright image has remained on screen for an extended period of time. It’s not necessary to determine whether this has arisen because of use of subtitles specifically, but the First TV was used, on the Applicant’s evidence, for around 9,300 hours before the issue arose. The applicant has not provided any evidence which helps the Tribunal understand the specific nature of the fault he refers to. This is part of the burden of proof that he has. It’s not sufficient simply to demonstrate that there is a fault with the First TV in circumstances where a significant period of time has passed during which the First TV has been used for approximately 10,000 hours.

47. On balance and on the available evidence, I am not persuaded that this arises from a manufacturing fault. In this regard, I note the Second Respondent’s evidence given during the hearing that the user manual for the First TV flags this as an issue for users to be aware of and to consider when using the First TV.

Has the Applicant established that the Second TV is not of acceptable quality?

50. Yes but, as with the First TV, this failure to comply with s 54 of the ACL has been remedied and is not a major failure.

51. The Applicant claims that the Second TV has been affected by the following faults:

1. A defective power supply; and

2. Failure to support the DTS Codec.

52. In respect of the first fault, I am satisfied that the First Respondent and the Second Respondent (as supplier and manufacturer respectively) have failed to comply with the guarantee in s 54 of the ACL. It’s not in dispute that the power supply was affected by some manner of defect.

53. However, the Second Respondent has replaced the defective power supply. This does not seem open to dispute. Similarly, it is not open to dispute that the fault was intermittent. The Applicant has not led evidence that this fault meant that he was unable to use the Second TV at any time other than while it was being repaired by the Second Respondent. I am not persuaded that this amounts to a major failure by the First or Second Respondent to comply with s 54 of the ACL and am satisfied that this fault was remedied by the Second Respondent in accordance with s 261(b) of the ACL.

54. The Second Respondent submits that they received reports about faults and had service technicians attend as follows:

1. A report by the Applicant on 12 February 2022, in which the Applicant is said to have reported issues with brightness and colours. This was investigated by a service technician on 16 February 2022 and determined to be the result of changes to the settings made by the Applicant (see: Second Respondent’s submissions at [9] and Annexure C to the same).

2. A report by the Applicant on 18 February 2022, that the Second TV had turned itself off. This was responded to with an offer to return the First TV and to provide compensation of $250.

3. A report by the Applicant on 29 July 2022, that the Second TV had turned itself off and on again. This was investigated by a service technician on 03 August and was unable to be substantiated. Error logs in the device did not establish any manner of fault (see: Second Respondent’s submissions at [13] and Annexure D to the same).

4. A report by the Applicant on 05 August 2022, that the Second TV had turned itself off and on again. This was investigated by a service technician on 16 August 2022 and the Second TV was found to be working as per the manufacturer’s specifications (see: Second Respondent’s submissions at [15] and Annexure E to the same).

5. A report by the Applicant on 23 August 2022, that the Second TV had turned itself off and on again. On this occasion, the Second TV was collected by the Second Respondent’s service technician on 08 November 2022 and taken to a service centre where a minor fault with a power supply and motherboard was identified and repaired.

6. The Second TV was due to be returned to the Applicant on 15 November 2022 but he cancelled the delivery.

55. I prefer the Second Respondent’s account of events relating to the Second TV to the Applicant’s account because I consider it is more consistent with the supplied service records which are annexed to the Second Respondent’s submissions. This account supports the view that the first reported fault with the Second TV (on 12-Feb-2022) was no fault at all and that the ultimately identified problem with the power supply or motherboard was intermittent and infrequent, occurring only a handful of times over the coming months.

56. I am also satisfied that the Second TV was ultimately repaired within a reasonable time having regard to:

1. The limited affect on the Applicant’s use of the Second TV (noting that the applicant had full use of the Second TV for all but 7 days of the relevant period);

2. The intermittent nature of the fault; and

3. The Second Respondent’s earlier efforts to diagnose the intermittent fault, which did not yield any evidence of an issue that needed to be resolved.

57. In respect of the second fault, I accept that the Second TV does not support this audio codec. This does not seem to be controversial. I do not accept that this makes the Second TV not of acceptable quality within the meaning given in s 54 of the ACL. This is not a defect, and I do not accept that the absence of this feature causes the Second TV not to be fit for all the purposes for which goods of that kind are commonly supplied.

58. The Applicant has made submissions that this ought to be available through other accessories, including an LG Soundbar (see: Applicant’s submissions at [44]). No evidence has been provided as to whether or not this functionality is available or working with the Second TV or any other television. This does not go beyond an assertion.

59. I also do not accept that either respondent has represented to the Applicant that the Second TV would support DTS. I do not accept that this is implicit in their representations that the TV was a premium or high end product.

60. I consider that the Applicant has, to some extent, acknowledged this. During the hearing, it was put to him that his new television (an LG G2) also does not support 3D or the DTS codec. The Applicant did not deny this.

61. This is an unusual requirement and plainly it was open to the Applicant to undertake his own due diligence before accepting the Second TV.

62. On the material before me, I find that the Second TV is in good working condition and has been made available to the Applicant.

Was either respondent required to offer the Applicant some remedy for some other failure to comply with of the ACL?

63. Yes, in respect of the services rendered by the Second Respondent to the First TV.

64. While I am not satisfied that the respondents were, by operation of the ACL, obliged to replace the 3D panel in the First TV the Second Respondent has elected to do so. The guarantee in s 60 of the ACL applies to such work.

65. I find that the work to replace the 3D panel in the First TV did not meet the guarantee in s 60 of the ACL because the Applicant ought to have been entitled to expect either that he would receive a 3D panel as a replacement or, in the alternative, that he would have been put on notice that 3D panels were no longer available.

66. As a result, the Second Respondent has failed to comply with the guarantee in s 60 of the ACL and is obliged to remedy the same on request by the Applicant. This is a major failure within the meaning given in s 268 of the ACL.

Was the remedy the respondents offered to the Applicant sufficient?

67. Yes.

68. For the reasons already given the repairs provided by the First and Second Respondents were sufficient to address the substantiated claims that they had failed to comply with s 54 of the ACL.

69. In respect of the failure to comply with s 60 of the ACL, the First Respondent offered the Applicant the Second TV, the Second Respondent offered the Applicant a small payment for loss of the 3D functionality. The Applicant elected to accept the Second TV.

70. As set out above, the Applicant argues that the Second TV was not a suitable remedy for the defects connected with the First TV including because the two devices are not identical and do not have feature parity. He argues that the ACL requires the replacement offered by a supplier/manufacturer to be identical.

71. I do not agree with this submission for two reasons.

72. Firstly, the applicant’s reasoning is particular to his claims in relation to s 54 of the ACL. In circumstances where I have found that there is no major failure to comply with that guarantee and where remedies have been provided within a reasonable time, the applicant is not entitled to demand or require a particular form of remedy be offered by the First or Second Respondent. In this regard I refer to s 256(2)(a) of the ACL, which relevantly provides:

the consumer may require the supplier to remedy the failure within a reasonable time

73. This gives the Applicant no control over the means by which the First or Second Respondent would remedy the alleged breach. Absent a major failure or a failure to provide a remedy within a reasonable time, he has certainty as to the outcome, but not as to the means through which it is achieved.

74. This interpretation is consistent with the language in other sections of the ACL, for example s 261 which sets out number of options by which a supplier may remedy a failure to comply with the ACL. The word may confers a discretion and the section does not indicate that it is intended to operate as an exclusive set of options for a supplier to comply with the obligation in s 259(2).

75. Secondly, I also consider that the Applicant is precluded from resiling from his agreement to accept the Second TV because there was an “accord and satisfaction” between the parties (see: see: El-Mir & 1 Or v Risk [2005] NSWCA 215 at [48]) which operates as a bar to him now seeking to enforce rights pursuant to the ACL to a different effect.

76. While not expressed in these terms (and noting that the parties are not legally represented), this is plainly a fundamental pillar of the argument put by the respondents and one which the Applicant has engaged with.

77. It is a trite observation, but the Second TV is plainly not identical to the First TV and I am not satisfied that it was presented to the Applicant as being such. During the hearing (and in his written submissions) the Applicant concedes that he was aware the Second TV did not have a 3D display. This is an obvious and significant point of difference. It was, in my view, open to the Applicant to consider the particulars of the offer put to him by the First Respondent and the Second Respondent prior to accepting such an offer. Noting my findings at [57] I consider that any failure on his part to do so is at his own risk.

Is the Applicant entitled to reject the Second TV?

78. No. For the reasons set out above, I am not satisfied that the failure to comply with s 54 was a major failure nor am I satisfied that there was a failure to remedy within a reasonable time. In those circumstances, the applicant is not entitled to reject the Second TV pursuant to s 259 of the ACL.

79. For completeness, the right to reject goods for a failure to comply with a consumer guarantee necessarily only applies to goods. It does not apply to services, and remedies arising from rejection cannot be sought in respect of the established breach of s 60 of the ACL.

Conclusion

80. For the reasons set out above, I am not satisfied that the Applicant has established an entitlement to recover the compensation he claims. I have found that the established failures to comply with ss 54 and 60 of the ACL have been remedied.

81. Had the Applicant been successful in establishing either that a failure had not been remedied, or that he was entitled to reject the Second TV, I would not have awarded the damages sought.

82. The Applicant had the full benefit and use of the First TV for approximately 10,000 hours over approximately 4 years. This is significant use over a significant period of time. His evidence about the effective lifespan of a 3D Panel is not sufficiently compelling to justify the refund sought.

83. During the hearing the applicant sought orders to the effect that, if he was unsuccessful, he wished to have the First TV and Second TV returned to him. From the evidence given during the hearing, it appears that the First Respondent has possession of the First TV, and the Second TV is held in storage by a third party at the behest of the Second Respondent.

84. I am not persuaded that the Applicant ought to be able to have both the First TV and Second TV returned to him, in circumstances where he has been materially unsuccessful in his claim. Pursuant to s 79R of the FTA, I will make orders for the applicant to make an election about which television he wishes to retrieve.

85. In respect of the storage costs noted by the Second Respondent, I express no view about whether or not these are recoverable but they are an amount which is expressed as being due to a company which is not party to these proceedings, an order cannot be made for payment of such costs in these proceedings. If the Applicant seeks to recover the Second TV, the Tribunal encourages the parties to engage in commercially reasonable negotiations in respect of those storage costs noting that the applicant has no direct contractual relationship with the vendor who is storing the Second TV.

Orders

86. Accordingly, the following orders are made:

1. Within 7 days of these orders, the Applicant is to notify both respondents, by email, whether he wishes to retrieve either the First TV or the Second TV (but not both).

2. If the Applicant gives notice in accordance with these orders that he wishes to retrieve the First TV, the First Respondent is to make the First TV available to the Applicant on at least 3 days’ notice during business hours on a date no later than 02-Jul-2025. The First Respondent is not required to transfer or deliver the First TV to the Applicant.

3. If the Applicant gives notice in accordance with these orders that he wishes to retrieve the First TV, the First Respondent is to make the First TV available to the Applicant on at least 3 days’ notice during business hours on a date no later than 02-Jul-2025. The First Respondent is not required to transfer or deliver the First TV to the Applicant.

4. The First Respondent and Second Respondent may retain or dispose (in whatever manner they see fit) of the First TV and Second TV (as appropriate) if they are not notified or the relevant televisions are not retrieved by the Applicant in accordance with these orders.

5. The application is otherwise dismissed.

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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: 25 September 2025