Qamaruddin v Kolak Living Pty Limited (Civil Dispute)

The applicant, Qamaruddin, brought a claim against Kolak Living Pty Limited in the Civil Dispute Tribunal of Australia. The dispute centred on a contract for the design and construction of a residential property, which included a no refund term that the applicant argued was unfair and misleading. The applicant sought a refund of the reservation fee and a partial refund of the design fee, as well as compensation for misleading and deceptive conduct under the Australian Consumer Law. The respondent, Kolak Living, contended that the no refund term was necessary to protect its legitimate business interests and that the contract was not a consumer contract, thus not subject to the Australian Consumer Law.

The legal issues before the Tribunal were whether the no refund term was unfair, whether there was misleading and deceptive conduct, and whether the contract was a standard form consumer contract. The Tribunal needed to determine if the no refund term was necessary to protect the respondent's legitimate interests and if it was unfair in the context of the entire contract. Additionally, the Tribunal considered if the contract was a consumer contract, which would subject it to the Australian Consumer Law.

In its decision, the Tribunal found that the no refund term was unfair as it significantly favoured the respondent and was not reasonably necessary to protect the respondent's legitimate interests. The Tribunal also found that the respondent engaged in misleading and deceptive conduct by not disclosing the risks associated with the no refund term. The Tribunal concluded that the contract was a consumer contract, as the applicant was acting as a consumer in the transaction. The Tribunal ordered the respondent to pay the applicant a total of $7,154, comprising a refund of the reservation fee, a partial refund of the design fee, and the applicable filing and ASIC search fees.

The Tribunal's final orders were that the respondent pay the applicant $7,000 as a refund for the reservation fee and a partial refund of the design fee, along with the applicable filing and ASIC search fees of $154. The Tribunal emphasised that the no refund term was unfair and that the respondent's conduct was misleading and deceptive. This decision highlights the importance of ensuring that contract terms are fair and that businesses comply with the Australian Consumer Law when dealing with consumers.