Norman Enterprises Pty Ltd v Deng

[2013] QCATA 47

CITATION: Norman Enterprises Pty Ltd v Deng [2013] QCATA 47

PARTIES:	Norman Enterprises Pty Ltd t/as Leimo Australia (Applicant/Appellant)
v
Mr Mark Deng (Respondent)

APPLICATION NUMBER: APL245-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 26 February 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Leave to appeal refused.

CATCHWORDS:

MINOR CIVIL DISPUTE – where appellant did not attend hearing – where appellant wants to file new material on appeal – whether grounds to accept new material – whether grounds for leave to appeal

Australian Consumer Law ss 29, 64(1)(c), 261
Queensland Civil and Administrative Tribunal Act2009, ss 137, 138

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Mr Deng bought a hair restoration package from Norman Enterprises Pty Ltd t/as Leimo Australia. The package included a “personal hair laser” and a range of shampoo, conditioner and scalp treatments. Leimo provided a 12 month money-back guarantee.

2. At the end of 12 months, Mr Deng was not happy with the results. He rang Leimo and was told that the package took more than 12 months to act. He extended the package for another 12 months but, at the end of that period, he was still not satisfied with the results. Mr Deng asked for his money back; Leimo refused. Mr Deng brought the dispute to the Tribunal. The learned Adjudicator, in Leimo’s absence, ordered that Leimo pay Mr Deng $3,659.99.

1. Leimo wants to appeal the learned Adjudicator’s decision. It says that the learned Adjudicator did not consider the terms of its money back guarantee or that Mr Deng had not complied with the conditions for obtaining the money back guarantee.

1. Because this is an appeal from a minor civil dispute, Leimo must seek leave to appeal. The Tribunal may grant leave if the dispute raises a question of general importance and the public would benefit from a decision on that question. It may also grant leave if Leimo shows a reasonably arguable case of error and a reasonable prospect that it will obtain substantive relief if the error is corrected.  

1. Leimo did not file a response to Mr Deng’s application and it did not appear at the hearing. In support of the appeal, it has filed documents which the learned Adjudicator did not see. The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time of the hearing.[1] Ordinarily, an application for leave to provide such evidence must satisfy each of the following tests:

a)    The evidence could not have been obtained with reasonable diligence for use at the trial; 

b)    The evidence, if allowed, would probably have an important impact on the result of the case (although it need not be demonstrated that it would be decisive); and   

c)    That the evidence is credible though it need not be incontrovertible.[2]

[1] ss 137-8 of the QCAT Act.

[2]        Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.

1. An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing. Leimo has provided no explanation as to why this material was not available earlier. It has not explained why it did not file a response. I will admit the copy of the contract because Mr Deng has seen it before and he can respond to it. I will not admit the evidence of the conversations between Leimo and Mr Deng as there is no good reason why it could not have provided that evidence earlier.

1. Leimo’s money back guarantee says this:

LEIMO is committed to helping you obtain thicker, fuller and healthier hair. We are so confident you will achieve these results that we are backing this with a 12 Month Money Back Guarantee on the LEIMO Personal Hair Laser. If you are not satisfied with your results after 12 months of use, we will reimburse your purchase price of the component in the LEIMO Personal Hair Laser Starter Kit less the RRP for the cost of the Hair care products in the starter kit.

1. I am satisfied that this is an express warranty that use of the Leimo system will result in “thicker, fuller and healthier hair” within 12 months.

1. The Australian Consumer Law states that a warranty is taken to be misleading unless there is evidence to the contrary.[3] Leimo does not challenge Mr Deng’s statement that, after 12 months, his hair was not thicker, fuller and healthier. It would be difficult to dispute that finding, given Leimo sold Mr Deng another 12 months’ treatment. I am, therefore, satisfied that Leimo breached the express warranty.

   [3] s 29(2).

1. Leimo says that it does not have to pay Mr Deng a refund because he did not comply with the conditions of the Money Back Guarantee. Section 64(1)(c) of the Australian Consumer Law states that a term that limits or restrict a supplier’s liability for failure to comply with an express warranty is void. Leimo’s standard contract has seven pre-conditions for a refund. Mr Deng had to purchase a minimum number of product kits. He had to contact Leimo to arrange a “return authorisation code”. He had to return the goods at his own expense, quote the return authorisation code and provide copies of invoices for all products he bought. I find that the Leimo contract does limit its liability for failure to comply with an express condition. Therefore, those terms of the contract are void.

1. If a supplier fails to comply with an express guarantee, then it may replace the defective goods or refund any money the consumer paid for the goods.[4] Even though Mr Deng has used the shampoo and other products, I am satisfied that they were part of a package. The package did not comply with the warranty, therefore Leimo should refund the total purchase price.

   [4]        Australian Consumer Law, s 261.

1. The learned Adjudicator’s decision is correct. There is no question of general importance that should be determined by the Appeals Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.