John v JB Hi-Fi Group Pty Ltd

[2019] NSWCATCD 29

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	John v JB HI-FI Group Pty Ltd [2019] NSWCATCD 29
Hearing dates:	13 February 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Consumer and Commercial Division
Before:	P Moran, Senior Member
Decision:	1. The Application of each of the Applicant's is dismissed.
Catchwords:	CONSUMER CLAIM - sale of goods - defective television - whether the Respondent was the supplier
Legislation Cited:	Fair Trading Act 1987
Category:	Principal judgment
Parties:	Anthony John (First Applicant) Stephen Davies (Second Applicant) Susan Davies (Third Applicant) Andrew Davies (Fourth Applicant) JB Hi-Fi Group Pty Limited (Respondent)
Representation:	First Applicant (no appearance) Second Applicant (in person) Third Applicant (in person) Fourth Applicant (no appearance) Respondent (A Stenlake)
File Number(s):	GEN 18/26825
Publication restriction:	Nil

REASONS FOR DECISION

Background/Application

1. By Application lodged with the Tribunal on 15 June 2018 Anthony John (First Applicant), Stephen Davies (Second Applicant), Susan Davies (Third Applicant) and Andrew Davies (Fourth Applicant) contend that the Respondent (J B Hi Fi Group Pty Limited) sold a Sony 4K3D television (the Television) with various issues and faults as described in the Application being:

1. Faulty screen

2. Busted white pixels

3. Distorted picture

4. Black smear appear [sic] on television

5. Faulty ethernet/wireless card

6. Sound distortion

7. Applications crash

8. Bluetooth device fault with remote control unresponsive

9. Inbuilt camera for skype video conferencing not working

10. No support for inbuilt camera useless

11. No android operated apps appear on TV

12. Advised was an android TV with 200 Hz

13. Advised have [sic] five (5) year warranty on unit with extra protection.

2. The Application asserts that attempts were made to contact J B Hi Fi several times to have the product assessed but that the Respondent "did nothing" and "did not respond" to the Applicants concerns. The Applicants plead that there were emails, faxes and telephone calls to the Respondent to have the Television booked in for a service and for a pick-up of the unit to be arranged. They allege they had the Television assessed by a technician and the manufacturer confirming that there are major faults with the unit; further, that advice by the technician is to the effect that the television was difficult to repair and that newer models would not be suitable for replacement as they did not have the same level of specification that the Applicants were seeking. The Application refers to advice being received that the only two options were replacement or refund.

3. An order is sought for the payment of $2301.00.

4. The Application also seeks an extension of time for the orders sought.

Jurisdiction

5. Although not specifically referred to in the Application, the Tribunal proceeds on the basis that the Applicants claim against the Respondent is a consumer claim within the meaning of s79E of the Fair Trading Act 1987 (the Act). The Tribunal has jurisdiction to hear the claim pursuant to s79I of the Act.

Relevant Evidence

A.    The Primary Issue

6. It became clear during the course of the hearing that the primary issue for determination is whether the Television was in fact supplied by the Respondent and, if so, to which Applicant (if any). In these Reasons for Decision I describe this as the Primary Issue.

7. At the hearing the Second and Third Applicants appeared. There was no appearance by, or on behalf of, the First or Fourth Applicants, nor explanation for their non-appearance. The Application of those Applicants is therefore dismissed.

8. Documents relied upon by the Second and Third Applicants, and by the Respondent, were admitted and marked Exhibits A1, A2 and R1 respectively. The Second and Third Applicants, and Mr Stenlake for the Respondent also gave oral evidence. Each was cross examined. A number of documents contained within Exhibits A1 and A2 had not, been provided to the Respondent in compliance with Order 2 made by the Tribunal on 3 September 2018. Hence tender of those documents was rejected; the Respondent having raised objection and submitted that it would be put at a disadvantage in not having had time to examine the material. Those documents the tender of which was rejected were removed from Exhibit A1, placed with the Tribunal file and marked, "Documents not admitted and removed from Exhibit A1". Similarly rejected documents were removed from Exhibit A2, placed with the Tribunal file and marked "Documents not admitted and removed from Exhibit A2".

9. In these Reasons my concentration when considering the oral testimony of witnesses and the documentation tendered and considered within Exhibits A1, A2 and R1 is upon evidence going to the Primary Issue described earlier namely whether or not the Respondent was the supplier (as defined in the Act) of the Television and, if so, to which, if any, of the Applicants.

B.   The Applicants Documents

10. Unfortunately, the documents contained within Exhibits A1 and A2 are not collated, paginated or indexed as ordered by the Tribunal on 3 September 2018. Nor was there a chronology of significant events.

11. Documents contained within the Exhibits that are not discussed or analysed in these Reasons are not, I find, relevant to the Primary Issue. Similarly in relation to oral evidence. I have carefully read and examined all of the tendered documentary evidence and considered all of the oral evidence.

12. The primary document in Exhibit A1 is a letter addressed to the Tribunal dated 20 September 2018 which purports to be authored by the First, Third and Second Applicants although it is unsigned. It attaches ". . . . correspondence sent to J B Hi Fi Group with regards to disputed case GEN18/26825". (i.e. the matter number of the current proceedings).

13. It also purports to attach ". . . . . expert reports from Sony and correspondence, an independent expert report, receipt of purchase, bank statement, pictures showing faults of television . . . . .". The authors of the letter say that there was a lack of response by the Respondent, and that the approaches occurred "several times". They contend that J B Hi Fi ". . . .said they were going to refund to [sic] faulty TV, provided a return of the television", that the Respondent had been requested to organise a courier to pick up the unit but that that was not followed through. The letter goes on to suggest that correspondence subsequently received from the Respondent was to the effect that it would not proceed with its "promise to refund the television".

14. As one reads through this 20 September 2018 letter it becomes difficult to discern authorship. There are occasions, particularly found on page 2 of the letter, where the Second Applicant is mentioned in the third person. On one occasion the Third Applicant is also mentioned in the third person. On another the Second Applicant is referred to as "my friend". On page 3 of the letter the author (or authors) refers to the Second Applicant having ". . . . confirmed with his bank that indeed there is amount [sic] taken out of his Westpac Visa Card Statement for the amount of $2301.00, and this is clearly stated on his Statement as a debt". The author(s) then say in the penultimate paragraph that "due to security" details of the Second Applicant's" bank balance and identity codes have been covered up".

15. Given the reference to the Second and Third Applicants in the third person, and the absence of any signature on the document, I conclude that, on balance of probabilities, its author was the First Applicant. In any event, as there is no evidence of the First, Third or Fourth Applicants having any direct knowledge of the Second Applicant's dealings with the Respondent, nor as to the email exchange between the Second Applicant and the Respondent, nor as to the circumstances by which the Television came to be acquired or paid for, I am unable to place any weight on the 20 September 2018 letter.

16. Also contained in Exhibit A1 is what, on its face, appears to be an email of a Rola Khaled, Customer Manager/External Disputes Manager with Westpac Banking Corporation to the Applicant. It says:

"I am writing to you to confirm the enquiry raised with regards to your Visa credit card charge on the 20/06/16.

To confirm, that yes, your Visa credit card account ending IN *2775 was debited by J B Hi Fi Caringbah for the amount of $2301.00. Mr Davies, you can also see the charge for yourself on your credit card statement.

I hope I have helped to resolve your enquiry raised with the Bank."

17. The enquiry referred to is not in evidence.

18. Although the email describes the recipient as the Second Applicant it contains an email address which is not the same as the email address utilised by the Second Applicant in his communications with the Respondent set out below. Nor is it the email address recorded for the Second Applicant in the Application lodged with this Tribunal on 15 June 2018. Rather, it is the email address recorded in the Application for the Fourth Applicant.

19. The Exhibit also contains what is said to be an email exchange between the Second Applicant and a Shalendra Sharma of the Respondent. The first of those emails is of the Second Applicant (utilising the email address for him recorded in the 15 June 2018 Application) dated Monday 15 June 2018 and addressed to "J B Hi Fi Attention Shalendra". In it the Second Applicant says that he is "following up on the issues raised with the faulty Sony TV". He enquires as to when a courier would be able to pick the television up ". . . . . for the refund of the faulty Sony TV". The email indicates that the Television was, at that time, at his parent's premises. There is a further email in evidence again of the Second Applicant addressed to the same person, this time dated 13 June 2018. In this later email the Second Applicant seeks an update on "our faulty Sony TV". It purports to attach a "report from Sony and also independent expert report" then mentions the best days for the Television to be collected. The email ends with a reference to parts being difficult to source and seeking either a refund or a replacement.

20. There is then what is contended to be an email of a Shalendra Sharma, Store Manager, JB Hi Fi to the Second Applicant dated 13 June 2018. It says:

"Hi Steven

Thanks for your email. With regards to the issues with your Sony TV purchased through J B Hi Fi store. I had read through your report from Sony and independent expert report that had run several tests on your Sony TV and had found there are multiple faults with your TV in particular the main fault with the faulty pixels displaying on your TV unit and also the black smear that appears on the television. With regards to the issues with the Skype camera not working, Skype unfortunately is no longer supported on this TV and this TV is not an android operated TV 200Hz. Not sure who advised you of this but perhaps you should take it up with that salesperson, this has nothing to do with us. Now back to the report assessment that has been done, although from the technician reports I understand recommendations of having the TV either refunded or replaced as too difficult to repair and upon advisement of having the TV refunded or replaced and although we have agreed to have the TV refunded or replaced depending on your decision. Unfortunately you, or your daughter, are not welcome here at J B Hi Fi, people like you and spastics are not welcome. I understand you may not be happy with this but as you can understand your daughter is a problem customer. You have mentioned that will take this matter further to NCAT, please understand NCAT has no powers to have your faulty TV refunded or replaced. Since 2018 there has been a number of changes to the enforcement of the Consumer Guarantee law and the consumer now has very limited rights. Although yes we admit there is a fault with your TV and we have a copy of your receipt on our records for proof of purchase of 20/6/16, however we will not honour the agreement to replace or refund the Sony KD55X900B TV. I thank you for your understanding."

21. Also within Exhibit A1 is what is said to be a Sony product repair sheet. The top right hand corner of the document suggests that it is a two page document however only the first page is included within the Exhibit. I will discuss and consider the authenticity of this document further in these Reasons. It is in the form of a tax invoice and contains an invoice number, a job reservation number, a job number, a serial number, the names of the First, Second and Third Applicants under "Customer Name" and under "Symptoms/Problems" the words "multiple issue/display issue: audio cracking". Under "Repair/Remarks" the document reads: "multiple issue: display issue; black smear appears on screen; faulty pixels appear on screen on multiple areas. Audio crackling." Under "Repair Content" it states: "Watchdog error 9, LCD panel faulty, no parts available, to difficult to repair, refund or replacement." The invoice amount inclusive of GST is $110.00.

22. A letter of an organisation described as Beetronix Solutions dated 17 April 2018 and addressed “To Whom it May Concern" is also contained within the Exhibit. The reference at the commencement of the letter is "Sony television KD55X9000B#2652373 Stephen Davies". Whilst the document within the Exhibit appears to be an original it does not contain a signature. The author contends that an assessment of Sony television KD55X9000B with serial number 2652373 has been undertaken. The author then summaries the findings, the principal ones being:

1. The television was a brand new device

2. There some components missing and loose connections

3. It was not an android TV

4. The built in camera was not functional

5. The television would not be able to support video conferencing

6. The model number of the television KD55X9000B is a model released for Australia

7. The product has a faulty screen panel as well as other faults

8. Whilst the unit may be a genuine Sony KD55X9000B television it is definitely not a Sony Android 200 Hz television.

9. The television would be too difficult to repair.

10. The recipient of the letter ought contact the retailer or manufacturer as to "remedy options as you are covered under statutory warranty".

11. The author believed "a replacement or refund is sufficient".

23. Exhibit A1 also contains what is said to be the Respondents tax invoice provided at the time the Television was purchased. I will consider and discuss this document in greater detail later in these Reasons. It refers to a sale price of $2301.00 and bears the date 20 June 2016.

24. What purports to be pages 1 to 3 of the Second Applicant's Westpac visa card statement referrable to an account ending with the numbers 2775 is also contained within the Exhibit. A number of areas of pages 1 and 3 of the statement have been covered.

25. There is recorded in the document on page 3 a date of transaction entry of 20 June 2016 recording J B Hi Fi Caringbah $2301.00.

26. The final document within Exhibit A1 is an email exchange said to be between the Second Applicant and J B Hi Fi Caringbah, commencing with an email of the Second Applicant of 16 June 2016 enquiring as to a particular Sony television that he was seeking, and the response from a "Kurt" at J B Hi Fi Caringbah also dated 16 June 2016 advising that the Sony television sought by the Second Applicant was available for purchase.

C.   The Applicants Oral Evidence

27. In addition to the tender of documents the Second and Third Applicants also gave oral evidence.

28. The evidence of the Third Applicant, the mother of the Second Applicant, is of limited assistance in the determination of the Primary Issue. She was not present at the time of the alleged purchase and was neither the recipient of nor the author of emails from or to the Respondent referrable to the purchase of the Television or assessment of defects.

29. The Third Applicant gave evidence that her son, the Second Applicant, had purchased the Television from the Respondent; further, that neither the First nor the Fourth Applicants took any part in the acquisition of the product. Her evidence is that the Television was paid for by the Second Applicant utilising his credit card and that he was given a receipt at the time of purchase.

30. Her evidence was that once the Television was delivered it started "playing up" and that arrangements were made by Sony (the Television manufacturer) to look at the product. After doing so Sony provided a report. Additionally, she contends that her son paid for the Television to be checked by a third party.

31. She denied the contention of the Respondent that the purchase receipt was not genuine; asserting that she would not know how to create a false receipt.

32. The oral evidence of the Second Applicant is that in 2016 he was interested in acquiring a specific television and that the Respondent advised him that the product he was seeking was available.

33. He specifically needed an Android 200Hz television with a Skype camera video. He contends that he was advised by the Respondent that those features were available in the television that he was seeking.

34. He gives evidence of attending the Respondent's Caringbah store and purchasing the television. He was provided - on his evidence - with the tax invoice referred to earlier in these Reasons; the purchase having occurred on 20 June 2016 and paid for by credit card.

35. After having taken delivery of the Television the Second Applicant became aware of a number of faults. He commissioned Sony to examine the television and provide a report. That report indicated major faults. He was directed back to the retailer and sent an email to the Respondent providing a copy of the report. There was then an exchange of emails between himself and the Bankstown J B Hi Fi Store. His evidence is that he spoke to a manager of the store who agreed to arrange for the television to be picked up. He then heard nothing further despite sending follow up emails. Eventually he received - he says - an email from the Respondent referred to in paragraph 20 of these Reasons saying that they would not honour their earlier agreement to either replace the television or provide a refund.

D.   The Respondents Documents

36. Documents relied upon by the Respondent are marked Exhibit R1. They comprise two bundles of documents; the first group being delivered to the Tribunal and to the Applicants on 12 November 2018 and the second bundle being provided on 4 January 2019 after receipt of additional documents from the Second Applicant on 7 December 2018. The documents forwarded to the Tribunal by the Second Applicant on 7 December 2018, being documents contained within Exhibit A2 referred to below, is - I find - evidence in reply to the material produced by the Respondent on 12 November 2018; further, I regard the documents produced by the Respondent to the Tribunal on 4 January 2019, which I will deal with later in the Reasons, to be in reply to the documents produced by the Second Applicant on 7 December 2018.

37. Similarly to the Applicant's documents, when considering the Respondents documents contained within Exhibit R1 my concentration is on those documents relevant to the determination of the Primary Issue.

38. Contained within sleeve 3 of Exhibit R1 is an email of Mr Adam Stenlake, Area Manager of the Respondent. It is addressed to the email addresses of each of Applicants as recorded in the Application lodged with the Tribunal. Mr Stenlake identifies himself as an Area Manager of the Respondent; to the Respondent having received the Application, and requests further information. The email goes on to say:

"You have noted the 20/6/16 as the date of purchase. Do you still have the receipt and if so can you please provide a copy or let me know the model number, store of purchase and total sale amount so we can locate a copy in our records? You have also mentioned your attempted contact with a store - can you please provide details of who and when you contacted. Can you also provide the technician report as you mentioned you had the unit independently assessed?”

39. Also contained within sleeve 3 of Exhibit R1 are further emails of Mr Stenlake to the Applicants email addresses dated 28 June and 12 July 2018 advising that there had been no response to the 15 June email.

40. Contained within sleeve 6 of Exhibit R1 is the alleged tax invoice of the Respondent's Caringbah store dated 30 June 2016. The authenticity of that tax invoice is disputed by the Respondent. Reliance is placed upon an email of a Rob Stangster, Technical Operations Lead, of the Respondent dated 25 October 2018 and appearing in sleeve 8 of Exhibit R1. Mr Stangster contends that the purported 20 June 2016 tax invoice bearing number 307917787 has been fully checked. His conclusions are:

1. There was no journal for the sale

2. There was no evidence of stock movement or history

3. The number utilised in the tax invoice is referrable to a sale performed in 2014 but from a different register and the applicable number being 407917787

4. The same number could not be used again two years later by a person at Register 3 utilising number 307917787

5. The PDA number on the receipt does not exist

6. The journal does not tie into any stock movement

7. The receipt has been doctored; was not real and should not be honoured.

41. Contained in sleeve 7 of Exhibit R1 is a copy of the email referred to earlier in these Reasons, being an email purportedly of the Bankstown Store Manager of the Respondent, Shalendra Sharma, to the Second Applicant dated 13 June 2018. The Respondent contends that this email did not in fact come from the Bankstown Store Manager. It relies upon an email of the Respondent's IT Infrastructure Manager, Mr Tim Kirk. An email of Mr Kirk to Mr Stenlake dated 24 October 2018 and contained within sleeve 9 of Exhibit R1 says:

1. Mr Kirk could find nothing in the Respondent's archives for the email address shown of [email protected] that matches the content of the email contained within sleeve 7.

2. The Respondent archives all inbound/outbound emails via a compliance archiving solution.

3. If the email had been sent or received it would have been in the archive.

42. Mr Stenlake also gives evidence in relation to the email in question as well as the emails that the Second Applicant had purportedly forwarded to the Respondent. He says, "We checked all folders and archives at store level and there is nothing in there at all that matches this. In fact there are no emails at all to or from that email address."

43. Contained within sleeve 10 of Exhibit R1 is a copy of the alleged Sony tax invoice dated 5 April 2018 and referred to earlier in these Reasons. It is an invoice that refers to the First, Second and Third Applicants under the heading "Customer Name" and contains the job number J70015745. The Respondent contends that this tax invoice is a fabrication. It relies upon evidence of a Max Blair, Customer Relations/Service-Electronics of Sony Australia/New Zealand Limited contained within an email of Mr Blair to Mr Stenlake of 23 October 2018. Mr Blair says, in reference to the Sony tax invoice found in sleeve 10 bearing job number J70015745, as follows:

"Thank you for your email. After reviewing the customers and case the job report we would like to advise the below.

In early 2017 the customer, Colin Davidson, had reported that their Sony Bravia TV was experiencing a fault and required service. From the initial point of contact the customer had unreasonably refused repair assistance offered by the manufacturer and was only seeking a replacement or refund option. This was deemed to be an unreasonable demand under the Australian Consumer Law as the customer's product had the characteristics of a minor failure.

After repeated attempts by the Service Centre SSS Electronics to contact the customer the case was closed off and the repair request was ready to be reopened upon the customer's return.

The customer later resurfaced early in 2018 and lodged a formal complaint through NCAT to seek the matter to be heard before a Tribunal, Sony Australia was listed as the Respondent.

I personally attended the Tribunal hearing to request that the TV be repaired.

The customer did not attend the hearing and was unable to give a valid reason. His request to reinstate was rejected and the case was dismissed by the Tribunal. Please see the attachment.

The job notes under J70015745 do not match the notes left by SSS and the initial TV model listed was also incorrect. No approval was supplied by Sony or its authorised service partners to have the TV replaced or refunded as stated in the Tribunal case.

If you have any queries please let me know."

E.   The Respondents Oral Evidence

44. In addition to the tendering of documents Mr Stenlake gave oral evidence. His testimony is that the job number found in the Sony tax invoice relied upon by the Applicants and dated 20 June 2016 is in fact not referrable to the Applicants but referrable to another customer, Mr Davidson, the person referred to in Mr Blair's email above. The job number referred is for a different job and the tax invoice is not genuine.

45. Each register within the Respondent's stores have, on Mr Stenlake's evidence, unique identification numbers. On investigations he has undertaken the unique identification number on the 20 June 2016 tax invoice relied upon by the Applicants does not exist and the code referred to in that document is in fact from a 2014 sale not a sale occurring in 2016. He also gives evidence that the PDA number referred to in that invoice does not exist; the conclusion being, on Mr Stenlake's evidence, that the Television was not purchased on the date referred to in the invoice and the receipt found in sleeve 6 of Exhibit R1, and relied upon by the Applicants, is not genuine.

46. He gave further evidence that the type of television referred to in the tax invoice had not been sold in the J B Hi Fi Caringbah store since 2015 and therefore could not have been sold on the day contended for by the Applicants namely 20 June 2016.

47. Mr Stenlake gives further evidence that the alleged email of Mr or Ms Sharma to the Second Applicant of 13 June 2018 was not in fact an email send by Mr/Ms Sharma. His evidence is that, on investigations undertaken by the Respondent, there was no transaction between the Respondent and the Second Applicant on 20 June 2016 in the amount referred to in the purported tax invoice of $2301.00.

F.   The Applicants Documents in Reply

48. The Applicant submitted further documents to the Tribunal on 7 December 2018. The content of the documents suggest that they are put forward by way of reply to the documents lodged by the Respondent on 12 November 2018. The documents are contained within Exhibit A2. Consistent with the way I have approached analysis of other evidence I concentrate my analysis and consideration of the documents within Exhibit A2 on those that have a material bearing on the Primary Issue.

49. There is nothing within Exhibit A2 that is materially relevant to the Primary Issue. The Exhibit comprises what appear to be submissions referrable to documents contained within Exhibit R1, correspondence passing between certain of the Applicants and the Tribunal, copies of emails passing between certain of the Applicants and representatives of the Respondent, (but in particular Mr Stenlake) post dating the commencement of these proceedings, duplicates of the documents contained within Exhibit A1 and duplicates of the documents contained within the Exhibit R1.

50. Similarly, the documents forming part of Exhibit R1 lodged with the Tribunal by the Respondent on 4 January 2019, which appear to be in reply to the documents lodged by the Applicants on 7 December 2018, are not materially relevant to the determination of the Primary Issue. They comprise a chronology of events, a copy of the disputed tax invoice and copies of the other documents contained within that part of the Exhibit lodged by the Respondent on 12 November 2018.

Applicable Law

51. Section 79E of the Fair Trading Act 1987 provides that for the purposes of Part 6A of the Act a consumer claim means a claim by a consumer for one or more of the remedies referred to in the section that arises from a supply of goods or services by a supplier to the consumer. The section lists the remedies as:

1. The payment of a specified sum of money;

2. The supply of specified services;

3. Relief from payment of a specified sum of money, and

4. The delivery, return or replacement of specified goods or goods of a specified description.

52. Section 79D of the Act defines "consumer" to include a natural person ". . . . . to whom. . . . a supplier has supplied or agreed to supply, goods or services . . . ." The same section defines "supplier" to mean ". . . . . a person who in the course of carrying on (or purporting to carry on a business) supplies goods or services.

53. Section 79K of the Act gives the Tribunal jurisdiction to hear and determine a consumer claim only if the goods or services to which the claim relates were supplied in New South Wales (subsection (a)). Subsections (b) and (c) are not relevant for the present purposes.

54. Section 79N, provides for the orders that the Tribunal may make if it finds in favour of a claimant, including (subsection (a)) an order of requiring a respondent to pay to a claimant a specified sum of money. Section 79O, dealing with orders in favour of a respondent, provide that the Tribunal may make (subsection (a)) an order dismissing the claim or part of the claim.

55. Section 79U, dealing with matters to be considered by the Tribunal when making orders, provides that when making orders under division 6A the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim (subsection (1)) and to take into consideration (if they are material to the particular circumstances of the case) the factors referred to in subsection (2).

Findings and Reasoning on Material Questions of Fact and Law

56. Dealing with the First, Third and Fourth Applicants, their Application is dismissed for the following reasons:

1. The First and Fourth Applicants did not attend the Hearing. No excuse was offered for their non-attendance.

2. In respect of the First, Third and Fourth Applicants, it is conceded by the Second and Third Applicants that the Television was purchased solely by the Second Applicant. Accordingly neither the First, nor the Third, nor the Fourth Applicants fall within the definition of a consumer of the Television under s79D of the Act and therefore has no consumer claim under s79E.

57. The Application of the Second Applicant is also dismissed for the following reasons:

1. I accept the evidence tendered by the Respondent that the purported tax invoice dated 20 June 2016, a copy of which is contained within both Exhibit A1 and Exhibit R1, is not a genuine tax invoice. I accept, on balance of probability, the findings and conclusions reached by Mr Sangster and referred to in his email of 25 October 2018 and contained with sleeve 8 of Exhibit R1.

2. I find that the Sony tax invoice dated 5 April 2018 appearing within sleeve 10 of Exhibit R1 is not a genuine tax invoice of Sony Australia/New Zealand Limited for the reasons expressed in the email of Mr Blair dated 23 October 2018 found within sleeve 11 of Exhibit R1.

3. It follows from findings (a) and (b) above that I am not persuaded that the Second Applicant has discharged his burden of proof in establishing that he was on 20 June 2016 the purchaser of the Television in question from the Respondent and hence that he was a consumer as defined in s79D of the Act enabling him to make a consumer claim within the meaning of s79E. It further follows from the findings (a) and (b) above that the Respondent was not, relevantly for the purposes of the Application, a supplier of the Television within the meaning of s79D.

4. I further find that the purported email of Mr/Ms Shalendra Sharma to the Second Applicant dated 13 June 2018 and appearing within sleeve 7 of Exhibit R1 (as well as within Exhibit A1) is not a genuine email. This for two reasons. Firstly, I accept the evidence of Mr Kirk in his email to Mr Stenlake of 24 November 2018 appearing in sleeve 9 of Exhibit R1. Secondly, the wording of the 13 June 2018 email, the typographical and grammatical errors contained within it, and the offensive language used makes it, I find, highly unlikely to be authored by a Store Manager, or any other authorised representative, of the Respondent.

5. I am not persuaded as to the veracity or authenticity of either the alleged email of Rola Khaled of Westpac dated 26 June 2018 or of the Westpac Platinum Visa Card Statement, both of which appear within Exhibit A1. This for the following reasons:

1. The letter to the Tribunal of 20 September 2018 contained within Exhibit A1 which purports to annex the email of Ms Khaled is not, I find, a letter authored by the Second Applicant.

2. The email of Ms Khaled itself refers to an enquiry having been raised however there is no evidence, documentary or otherwise, as to the enquiry referred to. If the enquiry was in writing it was not tendered. If it was an enquiry raised orally there was no evidence of that enquiry given by either the Second or Third Applicants.

3. There are a number of places on pages one and three of the statement where information has been covered.

6. The cumulative effect of sub-paragraphs (i) - (iii) of reason (e) is that I am not persuaded, on balance of probabilities, that the Second Applicant has discharged his burden of proof in establishing that he made a credit card payment of $2301.00 to J B Hi Fi Caringbah on 20 June 2016 as he alleges.

Orders

58. The Application of the First, Second, Third and Fourth Applicants is 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: 07 June 2019