Stephanie Pease v David Mark Lennie and Febriani Nunik Lennie both t/as Localesia

[2014] NSWCATCD 163

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Stephanie Pease v David Mark Lennie and Febriani Nunik Lennie both t/as Localesia [2014] NSWCATCD 163

Hearing dates:

25 July 2014

Decision date:

28 July 2014

Jurisdiction:

Consumer and Commercial Division

Before:

K Anthony, General Member

Decision:

1 The respondents are to pay the applicant the sum of $3,200.00 on or before 25 September 2014.

Reasons: Estimated cost to repair the defective staircase including painting, bolts and welding

Catchwords:

Consumer claim

Legislation Cited:

The Australian Consumer Law ("ACL") and Consumer Claims Act (NSW) 1998 ("CCA")

Category:

Principal judgment

Parties:

Stephanie Pease (applicant)
David M Lennie and Febriani N Lennie t/as Localesia

File Number(s):

GEN 14/30596

Publication restriction:

Unrestricted

reasons for decision

1. The applicant is a consumer and the respondent is a supplier of certain goods and services. The respondent supplied the applicant a custom made staircase for the sum of $3,767.00. The applicant paid delivery costs of $477.00.

The staircase was advertised as" ...professionally spray painted...brand

new, unused...undamaged..".

1. The applicant was seeking $3,200.00 compensation alleging that the staircase had significant rust damage in every piece of the stairs including bubbling through powder coating, bolt holes with no threads, deep scratches to several parts, broken or disintegrated welds, dint in landing, mismatched paint and delivery over three months late. The respondent maintained the applicant exaggerated these faults.

1. At the hearing the applicant gave oral evidence and both parties provided written documentation in support. The issues for determination by the Tribunal were whether the staircase had major or minor defects and what orders should therefore be made. The Tribunal then considered the relevant evidence provided by the parties to address these issues. The applicant had the onus of proving her claim on a balance of probabilities.

1. As a separate issue the respondent raised whether this Tribunal had jurisdiction to hear this application or whether it should be transferred to VCAT. Subsection 7(2) (a)of the CCA provides:-

Jurisdiction in respect of consumer claims

(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:

the goods or services to which the claim relates were supplied in New South Wales.

Accordingly, this Tribunal had jurisdiction to hear this application because

the goods were supplied in New South Wales.

1. The applicant provided a quotation from Amatec Coatings in support in the sum of $3,190.00 to rectify the rust issues. Further, the photographs provided by the applicant supported her claim that there were defects as detailed in above paragraph 2. The applicant also estimated cost of parts and other repairs to be approximately $300.00.

1. The respondent provided a photograph of the similar staircase and stated "...I had a very similar rust situation with another set of stairs. To scrape of the rust and apply primer then touch up paint added about 2 to 3 hours to the installation for myself and my assistant, and less than $20 worth of paint...The Applicant can source blind bolts herself.. alternative solutions include self-drilling metal screws, costing a few cents each. If she is not left it too late, the applicant can submit an insurance claim for damage incurred during delivery by the courier company". However, in an email dated 29 March 2014 the respondent after looking at the applicant's photos states ... "that is quite a lot of rust". Obviously, besides possibly the dint all other defects were due to the manufacture and not delivery of the staircase.

1. The ACL 54 Guarantee as to 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

(3) 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 ...of the goods; and

(e) any other relevant circumstances relating to the supply of the goods".

1. The matter most relevant as to whether the staircase was of acceptable quality was that the staircase was represented as being brand new and undamaged when in fact it was not based upon the photographs which showed extensive rust and that rust was more than just surface rust. The photographs showed major problems which if untreated would appear that the staircase would fail and therefore create safety issues in the future.

1. The next issue was what remedy was appropriate. From the evidence it was made clear by the applicant to the respondent that she was unhappy with the delays in supply though these matters were beyond the respondent's control. When finally delivered the applicant states that she "could not delay installation any further, so the stairs were installed". The respondent states "the rust would have been immediately visible on unwrapping the components. Someone made a decision to proceed with the installation without repairing the coating or contacting me. I did not make this decision yet the applicant claims that the cost of having had the stairs assembled and the cost of disassembling the stairs to remedy the problem is our responsibility."

The respondent also offered to repair the staircase if the applicant delivered the staircase to the respondent. The applicant was in a difficult position because the staircase was urgently required for her home.

1. The Tribunal having found the defects were major then held that this entitled the applicant to choose whether to reject or keep the staircase. In the circumstances the Tribunal accepted that it was reasonable for the applicant to keep the goods and seek compensation based upon the cost of repairs which were significant but not more than the purchase price. The cost of disassembling the staircase and reassembly plus the cost of delivery to the respondent and return to her would be similar to the compensation being sought by the applicant to leave the staircase in-situ and repair it. The respondent did offer to refund the purchase price if the applicant returned the staircase to the respondent at her cost. Again, the costs to the applicant to do this would be significant.

K Anthony

General Member

Civil and Administrative Tribunal of New South Wales

28 August 2014

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

Amendments

02 December 2014 - corrected paragraph numbering

Amended paragraphs: 1-10

Decision last updated: 02 December 2014