Penelope and David Poole v JCD Ideas Holdings P/L t/as Cafeideas

[2015] NSWCATCD 88

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Penelope and David Poole v JCD Ideas Holdings P/L t/as Cafeideas [2015] NSWCATCD 88
Hearing dates:	24 February 2015
Date of orders:	24 February 2015
Decision date:	17 July 2015
Jurisdiction:	Consumer and Commercial Division
Before:	R Harris General Member
Decision:	The Tribunal orders that the respondent: JCD IDEAS HOLDINGS PTY LTD t/as CAFEIDEAS is on or before 17 March 2015 at the respondents expense pick up 111 faulty Rattan Bistro Chairs from the applicants restaurant and replace the 111 chairs at no expense to the applicants.
Catchwords:	Consumer, Consumer Claim, Supply, Acquire, Manufacturer, Consumer Guarantees
Legislation Cited:	Consumer Claims Act 1998, Fair Trading Act 1987, Australian Consumer Law
Category:	Principal judgment
Parties:	Penelope and David Poole (applicants) JCD Ideas Holdings P/L (respondent)
Representation:	Applicants: P. Poole in person Respondent: No appearance
File Number(s):	GEN 14/55519
Publication restriction:	Unrestricted

reasons for decision

1. This matter was heard at Grafton on the 24 February 2015 in a Group List when brief oral and written reasons were given. These reasons are given at the direction of the Appeal Panel. The Tribunal notes that the respondent sought written reasons after being notified of the orders made and was advised by the registry “It is noted that the orders issued to you included reasons prepared by the Member which satisfy the requirements of Section 62(2) of the NSW Civil & Administrative Tribunal Act 2013. The Presiding Member has advised that no further reasons are available.” The request for written reasons was never referred to the Presiding Member. Had the request been referred detailed written reasons would have been provided at that time.

2. The applicant consumers sought in their application under the heading Order/s Sought “An order to fix or replace faulty goods, or deliver or return goods to the value of $8603.00.” The application went on to refer to the purchase of 140 chairs, 3 of which had already been replaced and stated that at this stage we have 72 cracked broken chairs from a total of 140. The figure of $8,603.00 was said to be the amount of the lease payments made to date in respect of the 140 chairs. The application finished by saying “Total Amount Claimed: $8603.00”

3. The applicant Mrs Poole appeared on behalf of the applicants gave evidence and relied upon the documents annexed to the application and photographs which were returned to her as well as a photograph that was on her Ipad. The respondent did not appear but did submit documents which comprised a statement of Cara Pizzata and supporting documents. The Tribunal was satisfied that the respondent was on notice of the hearing and that it was in the interests of justice that the matter proceed in the absence of the respondent who had indicated they would not be attending and would be submitting written material which they had done. Whilst the respondents solicitors covering letter had referred to a teleconference no application for a phone hearing had been made.

4. M/s Poole’s evidence was that she had found the subject chairs on the internet and had contacted the respondent who imported the chairs from Italy and arranged to purchase the chairs after arranging finance by way of lease agreements with Silverchef Rentals Pty Ltd (Silverchef) who she was introduced to by the respondent. The chairs were specifically bought for use in the applicant’s restaurant. The chairs were $69.00 each. The chairs were delivered to the applicant’s restaurant in Maclean in northern New South Wales in 2 lots, 98 in March 2013 and 42 in June 2013. Her evidence was that as at the date of the hearing 111 of the chairs had cracks in the back all in approximately the same place. 127 of the chairs were still in use as they had to provide seating for their customers. She stated that she had contacted the respondent who had advised that the problem was the polished flooring on which the chairs were located. She stated that the floors were unpolished and that the external floor had the boards turned upside down so that they were not slippery and that the chairs do not slip on the floors. She denied that the chairs penetrated the wooden grooves on the floor causing the legs to flex and break. She stated that the rattan at the back of the chairs was breaking where there appeared to be a join. She submitted photographs of the cracked chairs. She stated that the respondent’s representatives had not made themselves known when they apparently had lunch at the premises in January. When asked what orders she was seeking M/s Poole indicated that she would be happy with an order that the faulty chairs be replaced at no cost to her and that she did not want money notwithstanding she had already paid over $1,200.00 to have the first lot delivered.

5. The respondent’s evidence was as set out in M/s Pizzatas statement. It was asserted at paragraph 3 that “The Applicants are not the owners of 140 Rattan Bistrot (sic) Chairs and have no right to seek compensation and a refund of monies they claim.” The rental contracts with Silverchef were annexed to M/s Pizzatas statement. It was denied that 3 chairs were replaced under warranty and it was asserted that 2 chairs had been replaced by the respondent as they were damaged in transit. She described calling at the applicants’ restaurant on the 24 January 2014 where she and her father had lunch. She described at paragraph 17 approximately 120 chairs as being in use and that “they did not look broken” In paragraph 18 she stated that she noticed that “a number of chairs were being used on the timber decking which caused the legs to penetrate grooving between the timber decking causing the legs to flex and break.” She stated that the respondent had offered to replace 72 chairs as a gesture of goodwill if the applicants returned the chairs to Silverchef. She stated that she had obtained a report from the Italian supplier which was annexed together with a translation. This report was not a report in relation to the specific chairs the subject of these proceedings following an inspection but was a report in relation to the design of the chairs in general and appeared to relate to a sample received on the 7 September 2010.

6. Section 3 of the Consumer Claims Act 1998 defines supply as follows

supply:

(a) in relation to goods, includes supply goods by way of a contract for the sale, exchange, lease, hire or hire-purchase of goods or an alleged contract for the sale, exchange, lease, hire or hire-purchase of goods, and

(b) in relation to services, includes provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract.

Section 3A, 7 and 8 of the Consumer Claims Act 1998 provide

“3A Meaning of “consumer claim”

(1) For the purposes of this Act, a consumer claim is:

(a) a claim by a consumer for the payment of a specified sum of money, or

(b) a claim by a consumer for the supply of specified services, or

(c) a claim by a consumer for relief from payment of a specified sum of money, or

(d) a claim by a consumer for the delivery, return or replacement of specified goods or goods of a specified description, or

(e) a claim by a consumer for a combination of two or more of the remedies referred to in paragraphs (a)–(d),

that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services.

(2) For the avoidance of doubt, a reference in this Act to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer

7 Jurisdiction in respect of consumer claims

(cf Act No 206 of 1987, sec 10)

(1) General

The Tribunal has jurisdiction to hear and determine any consumer claim brought before it under this Part, whether or not the matter to which the claim relates arose before or after the commencement of this Part, except as otherwise provided by this section.

(2) Supply or agreement made, or supply intended to be made, in New South Wales

The Tribunal has jurisdiction to hear and determine a consumer claim only if:

(a) the goods or services to which the claim relates were supplied in New South Wales, or

(b) a contract or other agreement to which the claim relates contemplated that the goods or services would be supplied in New South Wales (whether or not they were so supplied), or

(c) a contract or other agreement to which the claim relates was made in New South Wales (whether or not the goods or services were supplied in New South Wales).

(3) The Tribunal has such jurisdiction whether or not:

(a) a contract or other agreement to which the claim relates confers jurisdiction on any other court or Tribunal (whether in New South Wales or elsewhere), or

(b) the rules of private international law require a law other than the law of New South Wales to be applied to the hearing or determination of the claim.

(4) Limitation periods

The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply:

(a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged,

(b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged.

(4A) Nothing in this section affects any period of limitation under the Limitation Act 1969.

(5) Claim relating to solicitor’s or barrister’s costs

A matter arising in relation to the fairness or reasonableness of the costs charged by a barrister or solicitor for an item of business transacted by the barrister or solicitor is not within the jurisdiction of the Tribunal if the costs can be the subject of a costs assessment under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).

8 Tribunal orders

(cf Act No 206 of 1987, sec 30)

(1) In determining a consumer claim wholly or partly in favour of a claimant, the Tribunal may, subject to this Part, make such one or more of the following orders as it considers appropriate:

(a) an order that requires a respondent to pay to the claimant a specified amount of money,

(b) an order that requires a respondent to perform specified work in order to rectify a defect in goods or services to which the claim relates,

(c) an order that requires a respondent to supply to the claimant specified services other than work,

(d) in the case of a claim for relief from payment of money, an order declaring that a specified amount of money is not due or owing by the claimant to a respondent,

(e) an order that requires a respondent to deliver to the claimant goods of a specified description,

(f) an order that requires a respondent to return to the claimant specified goods which are in the possession or under the control of that respondent, whether the property in the goods has passed or not,

(g) an order that requires a respondent to replace goods to which the claim relates,

(h) an order that requires:

(i) a respondent to refund all or part of the purchase price of specified goods that are in the possession or under the control of the claimant, and

(ii) the claimant to return all or part of those goods to the respondent,

whether the property in the goods has passed or not.”

It was clear on the evidence that the applicants had entered into rental agreements with Silverchef in relation to 140 chairs which were supplied to them in March and June 2013 at their premises in Maclean. It is clear on the evidence that these chairs were imported into Australia from Italy by the respondent. Section 3A (2) of the Consumer Claims Act makes it clear that a consumer claim can be made against a supplier who is not the direct supplier. The definition of supply makes it clear that a supply includes a supply by way of lease and hire purchase. Section 8 makes it clear that orders can be made whether property in goods has passed or not. The Tribunal was satisfied that the applicants were consumers and that the respondent was a supplier within the meaning of the Consumer Claims Act and that the proceedings were brought in time and that the Tribunal had jurisdiction to hear and determine the matter and make the order sought pursuant to Sections 7 and 8 as the claim was made within 3 years in relation to a supply of goods in New South Wales.

7. By virtue of part 3 of the Fair Trading Act 1987 The Australian Consumer Law (NSW) applies to the supply in this case and provides the following definitions of acquire, supply, consumer and manufacturer.

"acquire" includes:

(a) in relation to goods--acquire by way of purchase, exchange or taking on lease, on hire or on hire-purchase;

"supply" , when used as a verb, includes:

(a) in relation to goods--supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

(b) in relation to services--provide, grant or confer;

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.

3 Meaning of consumer

Acquiring goods as a consumer

(1) A person is taken to have acquired particular goods as a consumer if, and only if:

(a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did not exceed:

(i) $40,000; or

(ii) if a greater amount is prescribed for the purposes of this paragraph--that greater amount; or

(b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption; or

(c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads.

(2) However, subsection (1) does not apply if the person acquired the goods, or held himself or herself out as acquiring the goods:

(a) for the purpose of re-supply; or

(b) for the purpose of using them up or transforming them, in trade or commerce:

(i) in the course of a process of production or manufacture; or

(ii) in the course of repairing or treating other goods or fixtures on land.

7 Meaning of manufacturer

(1) A manufacturer includes the following:

(a) a person who grows, extracts, produces, processes or assembles goods;

(b) a person who holds himself or herself out to the public as the manufacturer of goods;

(c) a person who causes or permits the name of the person, a name by which the person carries on business or a brand or mark of the person to be applied to goods supplied by the person;

(d) a person (the first person ) who causes or permits another person, in connection with:

(i) the supply or possible supply of goods by that other person; or

(ii) the promotion by that other person by any means of the supply or use of goods;

to hold out the first person to the public as the manufacturer of the goods;

(e) a person who imports goods into Australia if:

(i) the person is not the manufacturer of the goods; and

(ii) at the time of the importation, the manufacturer of the goods does not have a place of business in Australia.

(2) For the purposes of subsection (1)(c):

(a) a name, brand or mark is taken to be applied to goods if:

(i) it is woven in, impressed on, worked into or annexed or affixed to the goods; or

(ii) it is applied to a covering, label, reel or thing in or with which the goods are supplied; and

(b) if the name of a person, a name by which a person carries on business or a brand or mark of a person is applied to goods, it is presumed, unless the contrary is established, that the person caused or permitted the name, brand or mark to be applied to the goods.

(3) If goods are imported into Australia on behalf of a person, the person is taken, for the purposes of paragraph (1)(e), to have imported the goods into Australia.

8. The Australian Consumer Law provides in Sections 54, 55, 259, 260, 261, 262, 263 and 271 as follows:

54 Guarantee as to acceptable quality

(1) If:

(a) a person supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(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 subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(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.

(4) If:

(a) goods supplied to a consumer are not of acceptable quality; and

(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5) If:

(a) goods are displayed for sale or hire; and

(b) the goods would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6) 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.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.

55 Guarantee as to fitness for any disclosed purpose etc

(1) If:

(a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and

(b) the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a) the consumer makes known, expressly or by implication, to:

(i) the supplier; or

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

259 Action against suppliers of goods

(1) A consumer may take action under this section if:

(a) a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and

(b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with.

(2) If the failure to comply with the guarantee can be remedied and is not a major failure:

(a) the consumer may require the supplier to remedy the failure within a reasonable time; or

(b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may:

(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or

(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.

(3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or

(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

(4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

(5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier.

(6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

(7) The consumer may take action under this section whether or not the goods are in their original packaging.

260 When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description--from that description; or

(ii) if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d) the goods are unfit for a disclosed purpose that was made known to:

(i) the supplier of the goods; or

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are unsafe.

261 How suppliers may remedy a failure to comply with a guarantee

If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement:

(a) if the failure relates to title--by curing any defect in title; or

(b) if the failure does not relate to title--by repairing the goods; or

(c) by replacing the goods with goods of an identical type; or

(d) by refunding:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.

262 When consumers are not entitled to reject goods

(1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:

(a) the rejection period for the goods has ended; or

(b) the goods have been lost, destroyed or disposed of by the consumer; or

(c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or

(d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.

(2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:

(a) the type of goods; and

(b) the use to which a consumer is likely to put them; and

(c) the length of time for which it is reasonable for them to be used; and

(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

263 Consequences of rejecting goods

(1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods.

(2) The consumer must return the goods to the supplier unless:

(a) the goods have already been returned to, or retrieved by, the supplier; or

(b) the goods cannot be returned, removed or transported without significant cost to the consumer because of:

(i) the nature of the failure to comply with the guarantee to which the rejection relates; or

(ii) the size or height, or method of attachment, of the goods.

(3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense.

(4) The supplier must, in accordance with an election made by the consumer:

(a) refund:

(i) any money paid by the consumer for the goods; and

(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or

(b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.

(5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier.

(6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

271 Action for damages against manufacturers of goods

(1) If:

(a) the guarantee under section 54 applies to a supply of goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of:

(a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or

(b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or

(c) the fact that the price charged by the supplier was higher than the manufacturer's recommended retail price, or the average retail price, for the goods.

(3) If:

(a) a person supplies, in trade or commerce, goods by description to a consumer; and

(b) the description was applied to the goods by or on behalf of the manufacturer of the goods, or with express or implied consent of the manufacturer; and

(c) the guarantee under section 56 applies to the supply and it is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(4) Subsection (3) does not apply if the guarantee under section 56 is not complied with only because of:

(a) an act, default or omission of any person other than the manufacturer or an employee or agent of the manufacturer; or

(b) a cause independent of human control that occurred after the goods left the control of the manufacturer.

(5) If:

(a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and

(b) the guarantee is not complied with;

an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer.

(6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5):

(a) by repairing the goods; or

(b) by replacing the goods with goods of an identical type;

then, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.

(7) The affected person in relation to the goods may commence an action under this section whether or not the goods are in their original packaging.

9. After considering the whole of the evidence both oral and documentary the Tribunal made the following findings. The applicants had acquired 140 chairs the subject of the application in March and February 2013 from the respondent who had imported the chairs from Italy. The Tribunal found that the manufacturer of the chairs in Italy did not have a place of business in Australia. This was the inference to be drawn from M/s Pizzatas evidence that a report had been obtained from the manufacture in Italy and a translation obtained. The purchase of the chairs was financed by way of rental agreements with a company known as Silverchef Rentals Pty Ltd. The Tribunal found that the respondent was aware that the chairs supplied were for use in the applicants’ restaurant. The Tribunal preferred the evidence of the applicant to that of the respondent in relation to the condition/quality of the chairs. Mrs Poole was an impressive witness, she gave detailed evidence of the cracks in the chairs and showed photographs of the cracked chairs. She described the nature of the floor surfaces upon which the chairs were used and was clearly in a much better position to describe the condition of the chairs and the nature of the flooring than M/s Pizzata who only made observations during the course of having lunch. M/s Pizzatas evidence in paragraph 17 that the chairs did not appear to be broken was not consistent with the photographs and was contradicted by her statement in paragraph 18 that the legs were broken due to the grooved floors. The report from the Italian manufacturer was not a report in relation to any of the chairs the subject of this claim following an inspection of the chairs. As noted above this report appeared to relate to a sample provided in September 2010. Having accepted the applicants evidence that 111 of the chairs were cracked or broken within such a relatively short time of use in the applicants restaurant the Tribunal found that the chairs supplied were not of acceptable quality or fit for purpose in breach of the consumer guarantees under the Australian Consumer Law. The Tribunal found this to be a major failure as a reasonable person would not have acquired the chairs if they had been aware of the defects and the chairs were not fit for use in the disclosed purpose of the applicants’ restaurant. As there was a major failure to comply with the consumer guarantees the applicants were entitled to ask for the chairs to be replaced. Tribunal found having regard to the number of chairs and the distance of the applicants business from the respondents place of business that it would involve significant cost to the .applicants to return the faulty chairs to the respondent. As the respondent was the importer of the chairs and the manufacturer had no place of business in Australia the applicants were entitled to bring a claim against the respondent.

10. The provisions of The Consumer Claims Act and the Australian Consumer Law set out above make it clear that an acquisition by way of hire purchase or lease is an acquisition by a consumer which is sufficient to support the applicants claim and that the respondents argument that the applicants had no standing to bring the claim as the applicants leased the chairs has no merit. Those provisions also make it clear that the respondent was a supplier and manufacturer for the purposes of The Australian Consumer Law and that the applicants were entitled to bring a claim against the respondent.

11. The Appeal Panel has indicated that these reasons should deal with the issue of why the application was amended without notice to the respondent. No such amendment was made so that no reasons can be given in relation to amendment however reasons can be given for the course the Tribunal took. The Tribunal is not a court of strict pleading. The applicant sought an order “to fix or replace faulty goods, or deliver or return goods to the value of $8603.00.” which was said to be the value of the lease payments made in respect of all 140 chairs. The Tribunal did not interpret the application as asking only for an order in relation to the 72 chairs which were said to be damaged “at this stage” but as being an application in relation to all the chairs. The Tribunal had anticipated that the applicant would be asking for an order in relation to all the chairs asking the Tribunal to draw an inference from the large number of chairs that were cracked or broken that all the chairs in the batch of chairs supplied were faulty. At the hearing an order was only sought in relation to the 111 chairs that were said to be faulty at that time. The Tribunal notes that the orders made in relation to 111 chairs at a value of $69.00 comes to $7,659.00 which is less than the $8,603.00 referred to in the application. The Tribunal did not consider any amendment necessary.

12. It appears the Appeal Panel may be of the view that the Tribunal should have taken a narrower interpretation of the application because of the reference to 72 chairs therein. If the Tribunal had been of the view that legal formalism required an amendment to be made procedural fairness would normally require an adjournment to put the respondent on notice as the respondent had chosen not to attend the hearing. However in this case the Tribunal would in all likelihood have made the amendment and proceeded to deal with the matter without further notice for the following reasons. The guiding principle in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Procedural fairness requires a respondent to be given an opportunity to be heard not every conceivable opportunity to be heard. The matter had already been adjourned on one occasion at the request of the respondent to enable the respondent to seek legal advice. The matters raised by way of defence to the application would appear to be the same irrespective of the number of defective chairs. Paragraph 3 of M/s Pizzatas statement was in following terms “The Applicants are not the owners of 140 Rattan Bistrot Chairs and have no right to seek compensation and a refund of monies they claim.” This does not suggest the respondent was under any illusion that the application only related to 72 chairs.

13. Having regard to the findings set out in paragraph 9 the Tribunal made the following order

1. The Tribunal orders that the respondent: JCD IDEAS HOLDINGS PTY LTD t/as CAFEIDEAS is on or before 17 March 2015 at the respondents expense pick up 111 faulty Rattan Bistro Chairs from the applicants restaurant and replace the 111 chairs at no expense to the applicants.

R Harris

General Member

Civil and Administrative Tribunal of New South Wales

17 July 2015

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: 04 September 2015