Kolenbet v The Good Guys Discount Warehouse (Australia) Pty Ltd
[2024] QCAT 32
•15 January 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kolenbet v The Good Guys Discount Warehouse (Australia) Pty Ltd [2024] QCAT 32
PARTIES:
HELENA KOLENBET (applicant)
v
THE GOOD GUYS WAREHOUSE (AUSTRALIA) PTY LTD (respondent)
APPLICATION NO:
Q2326-23
MATTER TYPE:
Other civil dispute matters
DELIVERED ON:
15 January 2024
HEARING DATE:
17 November 2023
HEARD AT:
Brisbane
DECISION OF:
Member Scott-Mackenzie
ORDER:
The proceeding is dismissed.
CATCHWORDS: TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – where refrigerator stopped working about eleven months after purchase – where issue reported the next day – where reason identified nine days later and repaired a further two days later – where applicant purported to reject the refrigerator but then accepted the repair and continued using it – whether statutory warranty applied – whether refrigerator of acceptable quality
Australian Consumer Law (Queensland), s 3, s 54, s 259, s 260
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
Vautin v By Winddown, Inc. (formerly Bertram Yachts) (No 4) [2018] FCA 426; (2018) 362 ALR 702
APPEARANCES:
Applicant:
Respondent:
Self-represented, accompanied by Mr Kolenbet
Mr Kendall, an employee of the respondent
REASONS FOR DECISION
Introduction
The applicant has made application to the Tribunal for repayment by the respondent of the price paid for an LG N635PL side-by-side refrigerator (refrigerator), $2,191.00, together with the filing fee on the application, $153.70 (application).
Background
On 2 June 2022 the applicant purchased the refrigerator from the respondent. The price paid included what is described as a five-years Gold Service Extras for $229.00, and premium delivery to zone one for $74.00.
On 7 May 2023 the refrigerator stopped working. The applicant reported the issue to the respondent’s local store the next day. She was informed by an employee in the store the issue would be ‘escalated’ to the manufacturer, and she would be contacted within 48 hours.
On 10 May 2023, having not to heard from anyone in that the meantime, the applicant’s husband telephoned the store. Subsequently, an employee of the manufacturer telephoned, and arrangements were made for a technician to inspect the refrigerator.
On 17 May 2023 a technician inspected the refrigerator and informed the applicant an electrical board had failed. The technician further informed her a replacement board would not be available for a further five or six days.
The applicant asserts that later that day she went to the store and said to an employee that, because the failure of the refrigerator is a major failure and cannot be repaired within a reasonable time, she wanted the refrigerator replaced. The store manager refused to replace the refrigerator without authorisation by the manufacturer.
Later still the same day, the applicant again spoke by telephone to the manufacturer and store manager. She was offered a small loan refrigerator. However, it was unable to be delivered until 19 May 2023.
On 18 May 2023 the applicant, on two occasions, spoke to the manufacturer by telephone and sent an email to the respondent. A copy of the email was filed with the application. In part, it reads:
I have been at pains to explain to the Loganholme store staff, store manager Amy and LG that this a major failure of the appliance and the delay in having it repaired is unreasonable and I am electing for the fridge to be replaced. The entire fridge does not work and I am risking my family’s health and safety if I was to store food in the fridge.
Later, the email continues:
There are many breaches of the Australian consumer Law at play here and I am at my wits end to get anyone at the Good Guys to take this seriously. I am at the stage where if I cannot get a replacement fridge sorted quickly, I will be organising for a truck to deliver my broken fridge to the Good Guys Loganholme store and will be commencing proceedings in QCAT for recovery of costs of doing so, together with a refund of the fridge, together with the absolutely useless gold concierge service I purchased, together with my out of pocket expenses for all the spoils and the take away food I have had to buy and will continue to buy until I can sort myself a new fridge.
On 19 May 2023, on short notice, a technician repaired the refrigerator. The applicant, despite what was said by her in the email, accepted the repair (she says under duress) and continued using it. The refrigerator was still being used by her at the time of the hearing of the application.
In summary:
2 June 2022Refrigerator purchased
7 May 2023Refrigerator stopped working
8 May 2023Issue reported by the applicant to respondent
17 May 2023 A technician inspected the refrigerator and informed the applicant an electrical board had failed
19 May 2023 The technician repaired the refrigerator
Orders sought
The orders sought by the applicant set out in a document filed with the application are:
1. A declaration that the breach of the consumer warranty was a major failure pursuant to s260 of the Australian Consumer Law; and
2. A declaration that the timeframe within which to remedy that failure (which would have been a minimum of 16 days as was originally represented to me) was not "a reasonable timeframe" to comply with the requirement to remedy the breach; and
3. By refusing to acknowledge my rejection of the goods and offer an appropriate remedy under the Australian Consumer Law requests for a replacement fridge on the basis that the fridge stopped working entirely, a declaration that the Good Guys have breached s263 of the Australian Consumer Law.
4. A remedy of that breach which may be either a full refund for the fridge, concierge service/extended warranty and transport costs; in the alternative
5. A partial refund of the concierge service/extended warranty and a replacement fridge; and
6. Reimbursement of the QCAT filing fee;
7. A formal apology; and
8. Improvement in Business Practice to protect other consumers from this behaviour.
Amended orders
The applicant made application to the Tribunal to amend the orders. She was granted leave to do so.
The amended orders read:
1. A declaration that there was a major failure of the refrigerator, the subject of the application (the “Refrigerator”); and
2. A declaration that the Refrigerator was rejected and that ownership In the Refrigerator has revested in the Respondent; and
3. An order that:
a.the Respondent refund the cost of the Refrigerator; and
b.the Respondent refund the cost of the delivery of the Refrigerator; and
c.the Respondent collect the Refrigerator within reasonable time.
4. In the alternative, an order that:
a.the Respondent replace the Refrigerator with a new refrigerator of the same make and model or an alternative make and model, no smaller in dimension and with no less features and benefits; and
b.the Respondent deliver the replacement refrigerator at no cost to me and take re possession of the Refrigerator, within a reasonable time.
5. In addition, an order that the Respondent refund the cost of the “5 years Gold Service Extras Concierge Service”; and
6. An order that the Respondent reimburse the QCAT filing fee; and
7. An order for damages for financial loss including for food spoils, the cost of fuel in having to travel to the grocery stores on a daily basis whilst the Refrigerator was not working and to the petrol station to purchase bags of ice to store cold items in eskies, the cost of purchasing tuckshop for school lunches and other takeaway food whilst the Refrigerator was not working, in the amount of $1,500 (or any other amount that the Tribunal reasonably determines); and
8. An order for damages in compensation for the lost time, stress and anxiety endured by each of my family members in the amount of $5,000 (or any other amount that the Tribunal reasonably determines); and
9. A formal apology; and
10. Improvement in business practice to protect other consumers; and
11. That all payments be made within a reasonable time of the order being made.
The applicant filed submissions with the application to amend the orders. The submissions again outlined the background to the application and, helpfully, draw attention to sections 54, 259 and 260 of the Australian Consumer Law (Queensland) (ACL). She filed with that the submissions documents evidencing the refrigerator had stopped working, telephone calls made by the applicant and her husband to the respondent, the Gold Service Extras concierge and the manufacturer, documents evidencing travel times and documents evidencing service of the application, the purchase of groceries and ice and other costs and expenses.
Hearing
The application was heard by the Tribunal on 17 November 2023.
The applicant was self-represented. She was accompanied by her husband. Mr Kendall, an employee of the respondent, appeared on behalf of the respondent.
Evidence
Applicant’s evidence
The applicant stated in evidence she was not offered a loan refrigerator until 17 May 2023. She informed the respondent the failure of the refrigerator was a major failure, but was told she must wait for assessment of the issue.
The refrigerator was not repaired within a reasonable time, the applicant asserted. There was no contact by the respondent following the issue being reported on 8 May 2023 until 17 May 2023. The part was not available for nine days with the consequence she was unable to use the refrigerator in the meantime.
When offered the loan refrigerator on 17 May 2023, she informed the respondent the offer was not acceptable. The respondent further informed the applicant, she stated in evidence, a replacement refrigerator would not be provided until a technician’s report was available. On returning to the respondent’s store, she was informed the refrigerator would not be replaced if it could be repaired.
The applicant asserted she rejected the refrigerator in the email sent by her to the respondent on 18 May 2023.
Respondent’s evidence
The Mr Kendall stated in evidence the issue was assessed and repaired. The repair, he asserted, was carried out within a reasonable time.
The applicant, Mr Kendall added, was offered compensation. The offer, however, was rejected.
Discussion
Does the statutory guarantee apply?
The applicant relies on the statutory guarantee in section 54 of the ACL, the guarantee goods are of acceptable quality. It applies if a person supplies, in trade or commerce, goods to a consumer and the supply does not occur by way of sale by auction. Supplier in relation to goods has a meaning corresponding to supply, defined in section 2 to include supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase.
A person acquires goods as a consumer if, inter alia, the goods are of a kind ordinarily acquired for personal, domestic, or household use or consumption.[1]
[1]ACL, s 3(1)(b).
I am satisfied the sale of the refrigerator by the respondent to the applicant was a supply of goods to a consumer in trade or commerce, and so find. The guarantee in section 54 applies to the sale.
Was the refrigerator of acceptable quality?
Goods are of acceptable quality if they are as:
(a)fit for all purposes for which goods of that kind are commonly supplied;
(b)acceptable in appearance and finish;
(c)free from defects;
(d)safe; and
(e)durable,
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in section 54(3).[2]
[2]Ibid, s 54(2).
The matters in section 54(3) are:
(a)the nature of the goods;
(b)the price of the goods (if relevant);
(c)any statements made about the goods on any packaging or label on the goods;
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e)any other relevant circumstances relating to the supply of the goods.[3]
[3]Ibid, s 54(3).
Goods do not fail to be of acceptable quality if:
(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b)they are damaged by abnormal use.[4]
[4]Ibid, s 54(6).
The principles applicable to determining whether goods are of acceptable quality are summarised by Derrington J in Vautin v By Winddown, Inc. (formerly Bertram Yachts) (No 4)[5] in the following terms:
[5][2018] FCA 426, at [142]-[143]; (2018) 362 ALR 702.
Mr Vautin asserts that the existence of the construction defects in the sandwich core panels of Revive means that the vessel is not of an “acceptable quality” within the meaning of the guarantee imposed by s 54 of the ACL. In determining whether the guarantee in that section is contravened the following matters are relevant:
(a) The test as to whether goods are of an “acceptable quality” is an objective one; being taken from the perspective of a “reasonable consumer” (APS Satellite Pty Ltd (formerly known as Sky Mesh Pty Ltd) v Ipstar Australia Pty Ltd [2016] NSWSC 1898 (APS Satellite Pty Ltd) at [57]; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128).
(b) The question for the “reasonable consumer” is whether the goods in question have the identified qualities enumerated in 54(2) to an “acceptable standard”. This requirement is derived from the words “as a reasonable consumer ... would regard as acceptable”.
(c) The “acceptable standard” is used as the yardstick against which the qualities of the goods are to be measured. It is ascertained by a consideration of the matters referred to in s 54(3); the nature of the goods, their price, any statement made about the goods on packaging or labels, any representations made about the goods by the supplier or manufacturer, and any other circumstance relating to their supply.
(d) It is necessary the goods have all of the qualities identified in s 54(2) to the ascertained acceptable standard. Those qualities are that the goods are fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable.
(e) In the assessment of whether the goods meet that relevant standard, the reasonable consumer is taken to be fully acquainted with the state and condition of the goods (including any hidden defects of the goods).
(f) If the goods supplied do not have all of the identified qualities to the acceptable standard, they will not be of an "acceptable quality".
In compendious terms, the issue is whether, objectively, the goods supplied (when taking into account their actual quality including any latent defects) are, to an acceptable standard, fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable when measured by a standard which reflects the nature of the goods, their price, statements about the good as per their packaging, representations made about the goods and any other relevant circumstance. In Prestige Auto Traders Australia Ltd v Bonnefin [2017] NSWSC 149 at [132] N Adams J identified the manner in which s 54 should be applied in the following way:
“The relevant test in s 54(2) of the ACL (NSW) of whether or not goods are of “acceptable quality” is an objective one based on whether a reasonable consumer who was aware of the “defects” in the goods at the time of the supply would have considered them to be of acceptable quality. There was no issue taken that the determination of what is objectively reasonable for a consumer to expect is to be made taking into account the relevant information known as at the time of the trial, including “after-acquired knowledge”: Medtel Pty Ltd v Courtney (2003) 130 FCR 182; 198 ALR 630; [2003] FCAFC 151 at [66] and [70].””
Wheelahan J, in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd[6], describes section 54 as providing a common standard of acceptable quality which goods are required to reach. He then continues:
It is necessary that goods have all the qualities referred to in s 54(2) in order to comply with the statutory standard: Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426; 362 ALR 702 (Vautin) at [142] and [144] (Derrington J). The standards under s 54(2) include that goods will be fit for all purposes for which goods of that kind are commonly supplied. This general standard of fitness for purpose is not dependent upon the consumer communicating any intended purpose to the supplier, or relying upon the supplier’s skill or judgment. And, in relation to the general standard, it does not suffice that the goods will be fit for only some of those purposes.
The standard of acceptable quality in s 54(2) has as its reference point a construct, namely the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects of the goods. The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1]-[4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728 (Lord Radcliffe).
The hypothetical question whether the reasonable consumer would have regarded the quality of the goods as acceptable is to be determined at the time of supply. However, the reference in s 54(2) to hidden defects has the consequence that for the purposes of determining that question, the reasonable consumer may be acquainted with information known at the time of trial: cf, Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 at [70] (Branson J, Jacobson J agreeing). The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [95] (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.[7]
[6][2020] FCA 1672.
[7]Ibid, at [25]-[27].
Applying the principles summarised by Derrington J in Vautin v By Winddown, Inc. (formerly Bertram Yachts) (No 4), and Wheelahan J in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd, to the circumstances here, I am not satisfied, on the balance of probabilities, the refrigerator was not of acceptable quality within the meaning of the guarantee in section 54 of the ACL.
I accept the refrigerator was purchased on 2 June 2022 and stopped working about eleven months later, on 7 May 2023. I also accept the refrigerator was repaired on 17 May 2023 by a technician replacing an electrical board. However, there is simply no evidence the board and, hence, the refrigerator, at the time of purchase, was defective and therefore not of acceptable quality.
The electrical board may have had a hidden defect at the time of purchase of the refrigerator. But it did work for about eleven months suggesting it was without defect, hidden or otherwise. And the board may not have had a defect at the time of purchase; it may have failed subsequently for an unidentified reason. Again, in the absence of evidence going to the reason for the failure of the board, I cannot be satisfied to the requisite standard the refrigerator was not of acceptable quality at the time of purchase.
The proceeding must be dismissed.
Decision
The decision of the Tribunal is the proceeding is dismissed.
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