Naucapoma v Annilam Pty Ltd t/as Colour 18 Wedding
[2014] NSWCATCD 161
•28 August 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Naucapoma v Annilam Pty Ltd t/as Colour 18 Wedding [2014] NSWCATCD 161 Hearing dates: 21 August 2014 Decision date: 28 August 2014 Before: M Cohen, Senior Member Decision: The orders of the Tribunal are:
1. The name of the respondent is amended to Annilam Pty Ltd t/as Colour 18 Wedding.
2. The respondent is to pay to the applicant the sum of $1,000.00 immediately.
Catchwords: None Legislation Cited: Consumer Claims Act, 1998 (the "Act") Cases Cited: Jones v Dunkel (1959) 101 CLR 298 Texts Cited: None Category: Principal judgment Parties: Pablo Naucapoma (applicant)
Annilam Pty Ltd t/as Colour 18 Wedding (respondent)Representation: None
None
File Number(s): GEN 14/27633 Publication restriction: Unrestricted
reasons for decision
APPLICATION
In this matter, Mr Pablo Naucapoma, the applicant, appeared in person, and Ms Anni Lam, a director of the respondent, appeared in the interests of the respondent.
I have ordered that the record be amended to reflect the correct legal name of the respondent, Annilam Pty Ltd t/a Colour 18 Wedding identified by an ASIC search dated 28 May 2014.
The applicant provided documentary evidence of his dealings with the respondent which disclosed, upon a "quotation/invoice" dated 6 April 2014, that he negotiated with the respondent for the supply of wedding planning services on 29 November 2014. This attracts the definition of "consumer" under s 3 of the Consumer Claims Act, 1998 (the "Act"). Further, the claim made by the applicant is for the refund of $1,000.00 paid by way of deposit for such services in circumstances where there has been alleged to be what is best described as a total failure of consideration. It is a claim within the jurisdictional limit of the Tribunal prescribed by s 14 of the Act, and it proceeded to determine the matter at the hearing conducted on 21 August 2014.
The applicant provided a bundle of documents for the purposes of the hearing, including a witness statement dated 18 June 2014, which were filed on 26 June 2014.
The respondent provided a bundle of documents for the purposes of the hearing, including a witness statement dated 8 July 2014, which were filed on 10 July 2014.
Each of the applicant and the respondent gave oral evidence, in the latter case by its director, Ms Anni Lam. The Tribunal had the opportunity to observe each of the applicant and the director of the respondent whilst they gave evidence, and where there is a discrepancy between such evidence about events which is not otherwise corroborated by contemporaneous documents, the Tribunal formed the view that the evidence of the applicant was to be preferred to that of the director of the respondent.
The applicant conceded in his evidence that he was not a business person, and perhaps (using the applicant's phrase) "naive", but testified that he believed that the respondent had misled him. His evidence was that, save for an initial brief meeting with the director of the respondent; and a brief further meeting at the time of the cancellation of the engagement provided to the appellant, the whole of his discussions and negotiations with the respondent were conducted with an employee of the respondent, Ms Chen, and not otherwise with the director of the respondent.
In her evidence, the director of the respondent conceded that she was not present during any of these discussion and negotiations; and that Ms Chen who undertook those negotiations was not brought to the Tribunal to give evidence. When questioned by the Tribunal, the director for the respondent gave the implausible explanation that she was informed by staff in the Registry of the Tribunal that Ms Chen was not able to represent the respondent and that the director was required herself to give evidence. The Tribunal rejects this contention.
Further, while the respondent's witness statement purports to provide the evidence of various employees of the respondent including Ms Chen, it is signed only by the director of the respondent. If the respondent intended to advance the evidence of Ms Chen before the Tribunal in its interests Ms Chen ought at least to have been required to sign the witness statement. This did not occur.
On that basis, the Tribunal is prepared to draw the inference adverse to the respondent in accordance with the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 that the evidence of Ms Chen was not provided to the Tribunal as it would not provide any assistance to the case of the respondent.
The applicant's further oral evidence supplementing his witness statement was that during discussions with Ms Chen (conducted either on 4 April 2014 or 6 April 2014) he indicated that his intention was to have available a service which could be provided to him in what may be described as "bespoke" fashion, with the aim of maintaining an overall budget of $10,000.00 for the whole cost of the wedding arrangements. That is to say, the applicant acted upon the assumption that he was able to choose elements from a number of nominated packages and create his own "package" at a cost suitable to his budget from the available items proffered in the schedule of packages provided him by the respondent, acting by its employee Ms Chen. The schedule of packages was in evidence before the Tribunal.
The applicant testified that he was informed thereafter by Ms Chen, on the later occasion (likely to be 6 April 2014) when further discussions were undertaken about arrangements for the proposed wedding, that such an arrangement would be possible. The applicant testified that in reliance upon such a representation, on 6 April 2014, he was induced to pay the sum of $1,000.00 to the respondent which was charged to his credit card. This is proved by a credit card receipt, also in evidence. The applicant also testified that he read and understood the terms and conditions upon the quotation/invoice dated 6 April 2014 at the time that he advanced the deposit of $1,000.00.
The evidence of the applicant on this point is supported by the contemporaneous documents.
The quotation/invoice discloses "Whole Day Wedding Packag" (sic) with a unit price of $3,999.00; and an "Outdoor/Church Wedding Package" with a unit price of $1,999.00. The elements within each of these packages found in the quotation/invoice do not line up with the elements which constitute the "Wedding Packages" brochure which was provided to the applicant, and which also is in evidence.
The director of the respondent in her oral evidence conceded that she understood her staff, which the Tribunal understood to be a reference to Ms Chen, did mention to the applicant that some components within packages were able to be changed, although she maintained these was not the components identified by the applicant.
On the basis that Ms Chen was not called; and there is some concession by the director of the respondent of the correctness of the facts narrated by the applicant on this question, the Tribunal prefers the evidence of the applicant, and finds that the applicant did have such representations made to him by the respondent; that he did rely upon the representations; and that he accordingly made a payment of $1,000.00 to the respondent by credit card.
After further consideration of the components of the package, in another discussion with Ms Chen on a subsequent occasion, likely to be in late April 2014, the applicant informed the respondent that he wished to vary the elements within the package choices that were recorded by the initial quotation/invoice in conformity with his understanding of what had been represented to him, as he had the same budget of $10,000.00 identified initially, but that he was concerned to ensure that he allowed a maximum of $5,000.00 allocated to the type of wedding services to be provided by the respondent, and the balance would go to the wedding reception.
The additional testimony of the applicant is that when this election was nominated to the respondent it was refused. The further alternative then suggested by the applicant, that he elect to receive the less expensive package number five at a total cost of $2,599.00, also was refused after reference by Ms Chen to the director of the respondent, unless the applicant was prepared to ensure that the wedding dress hired under such circumstances was returned at the door of the church upon completion of the formal wedding ceremony, such that the garment would be available for use for a number of hours and not the whole of the day. The comment also made by Ms Chen was that the applicant was "spending too much time without paying".
There is no discernible difference on the face of the respondent's brochure describing the different elements of the various packages which provided for the hire of wedding apparel. Relevantly, each provides for "Wedding Gown Hire (unlimited styles)". That being so, it is impossible to comprehend why the applicant might be restricted to a limited temporal use of the garment if a package with a total cost of $2,599.00 was chosen, whereas no such restriction would arise if the package had a total cost of $3,999.00, being the initial suggestion of the respondent upon the quotation provided to the applicant on 6 April 2014.
The applicant testified further that he offered to the respondent to break the arrangements concerning the wedding services to be provided, upon conceding a debt due by him to the respondent in the amount of $500.00, with the balance of the deposit paid being refunded to the applicant. The respondent refused this offer, with the result that the applicant confronted with such an unworkable commercial basis for the services to be provided to him cancelled the services, and the respondent purported to appropriate the whole of the deposit held by way of a cancellation fee. Email correspondence from the applicant to the respondent dated 2 May 2014, in evidence before the Tribunal on the general issue, remained unanswered.
Against this background of facts and circumstances, the director of the respondent asserted in oral testimony, and in the respondent's witness statement, that at the time of cancellation the applicant told Ms Chen that he was cancelling because "they found a cheaper photographer and videographer". For the reasons recorded earlier, where a contest arises between the evidence of the applicant and that of the director of the respondent, the Tribunal prefers the evidence of the applicant, and accordingly rejects this version of events advanced by the respondent and accepts the evidence and finds the facts to be as advanced by the applicant.
Curiously, while the quotation/invoice issued to the applicant on 6 April 2014 and acknowledged by the applicant by being signed by him recorded the narrative under "Payment Policy" that "a minimum non-refundable deposit of $500.00 is payable on acceptance of services", the same narrative on a further invoice issued by the respondent after the cancellation of services but purported to be dated 6 April 2014 and unsigned by the applicant repeated such a narrative, save that it purported to record a non-refundable deposit of $1,000.00. While this inconsistency was raised by the applicant in his witness statement and reiterated by his oral evidence, there was no attempt by the respondent by its witness statement or the oral evidence of its director to address it. It is, therefore, the unchallenged evidence of the applicant on this question.
Additionally, the director of the respondent gave quite unsatisfactory evidence about the inability of the respondent to find an alternative user for the booking vacated by the applicant in late April 2014 and which was what she characterised as a "busy time"; and about the fate of the funds paid by the applicant as being used to pay sub-contractors such as the proposed photographer who was paid in cash. When questioned about whether the respondent claimed the GST identified upon the invoice supplied by the photographer in its BAS Statement for the period ending 30 June 2014, the evidence provided was evasive and quite dissembling.
It is not entirely clear from the whole of this evidence whether the parties were proposing to enter contractual relations immediately upon signing the quotation/invoice, conformably with the first limb in Masters v Cameron (1954) 91 CLR 353, subject to further particulars being provided at a later time; or that a contract would arise only when further discussions and negotiations were completed, and that there was no intention to be bound immediately, consistently with the third limb in Masters v Cameron.
The Tribunal finds, relying upon the drawing of an inference consistent with the principle in Briginshaw v Briginshaw (1938) 60 CLR 336, given the quite unsatisfactory nature of the evidence which fell from the director of the respondent, and the lack of any explanation by the respondent about the altered form of the quotation/invoice from its original form at the time of the payment of the deposit by the applicant on 6 April 2014, to its later form in late April 2014 when the engagement of the respondent by the applicant was cancelled, that the later form was a fabrication by the respondent to forestall the claim by the applicant for the refund of any amount paid by way of deposit.
Further, the Tribunal finds that the wholly arbitrary imposition by the respondent of a condition of limited use upon the hire of the wedding dress was a fundamental breach of an essential term necessarily implied into the contract that the applicant have reasonable access to and use of the wedding dress the subject of hire arrangements within the nominated packages.
The Tribunal finds, accordingly, that by reason of the contrived amendment to the quotation/invoice by the respondent after the cancellation of the services by the applicant, that it is more probable than not that the applicant and the respondent did not enter into contractual relations on 6 April 2014 and it was not open to the respondent to appropriate any part of the deposit moneys paid by the applicant.
If the Tribunal be wrong in this conclusion as to the legal effect of the conduct of the parties at this time, it nonetheless is the view of the Tribunal that by reason of the subsequent breach of an essential term by the respondent, the applicant was at liberty to terminate the contract and entitled to have a refund of the full amount of the deposit paid on 6 April 2014.
It follows that the applicant is entitled to have a money order made by the Tribunal for payment immediately by the respondent to the applicant of the sum of $1,000.00.
M Cohen
Senior Member
Civil and Administrative Tribunal of New South Wales
28 August 2014
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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: 17 October 2014
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