Sun v Lumi Skin Clinics Pty Ltd - [2025] NSWCATCD 17

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sun v Lumi Skin Clinics Pty Ltd [2025] NSWCATCD 17
Hearing dates: 31 January 2025
Date of orders: 7 April 2025
Decision date: 07 April 2025
Jurisdiction: Consumer and Commercial Division
Before: JA Rose, General Member
Decision:
(1)   By consent, the respondent, Lumi Skin Clinics Pty Limited must pay the applicant, Xiaoran Sun the sum of $4,653.00 immediately.
(2)   The application is otherwise dismissed because the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before it that there are grounds for the Tribunal to make the orders sought by the applicant.
(3)   Subject to order (4), each party is to pay that party’s own costs of the proceedings.
(4)   If either party wishes to seek a different costs order to that set out in order (3), then:
(a)   that party (the “costs applicant”) is to provide to the other party (the “costs respondent”) and to the Tribunal written submissions (strictly not exceeding 4 pages) setting out the costs order they contend for and the reasons relied on for seeking that order, together with any other relevant documents or material, within the 7 days after the date this decision is issued to the parties;
(b)   the costs respondent is to provide to the costs applicant and to the Tribunal written submissions in response (strictly not exceeding 4 pages) setting out the reasons relied on against making that order, together with any other relevant documents or material, within the 14 days after the date this decision is issued to the parties; and
(c) the parties submissions are to address the question of whether a hearing on costs can be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), with the intent that the costs issue will be determined on the papers.
(5) The Tribunal is satisfied pursuant to s 79U of the FT Act that this order will be fair and equitable to all parties to the claim.

Catchwords:
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to nature, quality, state or condition
CONSUMER LAW — Unconscionable conduct — In connection with goods or services
CONSUMER LAW — Unfair contract terms — Consumer contract

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) Civil Liability Act 2001 (NSW)
Fair Trading Act 1987 (NSW)
Poisons and Therapeutic Goods Regulation 2008 (NSW)

Cases Cited:
ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204
ACCC v Kobelt [2019] HCA 18; (2019) 267 CLR 1; 93 ALJR 743; 368 ALR 1
ACCC v Quantum Housing Group Pty Ltd [2021] FCAFC 40
AWD Cavallo Investments Pty Ltd v Smokevitch [2021] NSWCATAP 183
Bird v DP (a pseudonym) [2024] HCA 41
Director General of Fair Trading v First National Bank Plc [2001] UK HL 52
Gover v South Australia (1985)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWCATCD 17
Decision Date: 07 April 2025

CaseChat Overview and Summary

Xiaoran Sun brought a claim against Lumi Skin Clinics Pty Ltd in the Civil and Administrative Tribunal of New South Wales, alleging that the clinic breached consumer guarantees under the Australian Consumer Law by failing to provide services with due care and skill and by not supplying services of the quality and nature as represented. The applicant further alleged unconscionable conduct and the presence of unfair contract terms in the agreement with the clinic. The court was required to determine whether Lumi Skin Clinics Pty Ltd breached consumer guarantees, engaged in unconscionable conduct, and whether any contract terms were unfair.

The Tribunal found that while there were breaches of consumer guarantees, it was not satisfied that the evidence presented met the civil standard to support the applicant's claims for unconscionable conduct and unfair contract terms. However, the Tribunal did find that the clinic failed to provide services with due care and skill and did not meet the standards represented, resulting in a breach of consumer guarantees. Consequently, the Tribunal ordered the clinic to pay compensation to the applicant. The Tribunal dismissed the remainder of the applicant’s claims due to insufficient evidence.

The Tribunal ordered that Lumi Skin Clinics Pty Ltd must pay Xiaoran Sun $4,653.00 immediately. The dismissal of the other claims was due to the Tribunal not being convinced, on the balance of probabilities, that there were grounds to support those claims. Each party was to bear their own costs unless either party sought a different costs order. If a party chose to seek a different costs order, they had to provide written submissions to the other party and the Tribunal within a specified timeframe, aiming to resolve the costs issue without a hearing.

Orders

Orders of the court

(1) By consent, the respondent, Lumi Skin Clinics Pty Limited must pay the applicant, Xiaoran Sun the sum of $4,653.00 immediately.

(2) The application is otherwise dismissed because the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before it that there are grounds for the Tribunal to make the orders sought by the applicant.

(3) Subject to order (4), each party is to pay that party’s own costs of the proceedings.

(4) If either party wishes to seek a different costs order to that set out in order (3), then:

(a) that party (the “costs applicant”) is to provide to the other party (the “costs respondent”) and to the Tribunal written submissions (strictly not exceeding 4 pages) setting out the costs order they contend for and the reasons relied on for seeking that order, together with any other relevant documents or material, within the 7 days after the date this decision is issued to the parties;

(b) the costs respondent is to provide to the costs applicant and to the Tribunal written submissions in response (strictly not exceeding 4 pages) setting out the reasons relied on against making that order, together with any other relevant documents or material, within the 14 days after the date this decision is issued to the parties; and

(c) the parties submissions are to address the question of whether a hearing on costs can be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), with the intent that the costs issue will be determined on the papers.

(5) The Tribunal is satisfied pursuant to s 79U of the FT Act that this order will be fair and equitable to all parties to the claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sun v Lumi Skin Clinics Pty Ltd [2025] NSWCATCD 17
Hearing dates:	31 January 2025
Date of orders:	7 April 2025
Decision date:	07 April 2025
Jurisdiction:	Consumer and Commercial Division
Before:	JA Rose, General Member
Decision:	(1) By consent, the respondent, Lumi Skin Clinics Pty Limited must pay the applicant, Xiaoran Sun the sum of $4,653.00 immediately. (2) The application is otherwise dismissed because the Tribunal is not satisfied to the civil standard (being the balance of probabilities) on the material put before it that there are grounds for the Tribunal to make the orders sought by the applicant. (3) Subject to order (4), each party is to pay that party’s own costs of the proceedings. (4) If either party wishes to seek a different costs order to that set out in order (3), then: (a) that party (the “costs applicant”) is to provide to the other party (the “costs respondent”) and to the Tribunal written submissions (strictly not exceeding 4 pages) setting out the costs order they contend for and the reasons relied on for seeking that order, together with any other relevant documents or material, within the 7 days after the date this decision is issued to the parties; (b) the costs respondent is to provide to the costs applicant and to the Tribunal written submissions in response (strictly not exceeding 4 pages) setting out the reasons relied on against making that order, together with any other relevant documents or material, within the 14 days after the date this decision is issued to the parties; and (c) the parties submissions are to address the question of whether a hearing on costs can be dispensed with under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), with the intent that the costs issue will be determined on the papers. (5) The Tribunal is satisfied pursuant to s 79U of the FT Act that this order will be fair and equitable to all parties to the claim.
Catchwords:	CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to nature, quality, state or condition CONSUMER LAW — Unconscionable conduct — In connection with goods or services CONSUMER LAW — Unfair contract terms — Consumer contract
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil Liability Act 2001 (NSW) Fair Trading Act 1987 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW)
Cases Cited:	ACCC v Chrisco Hampers Australia Limited [2015] FCA 1204 ACCC v Kobelt [2019] HCA 18; (2019) 267 CLR 1; 93 ALJR 743; 368 ALR 1 ACCC v Quantum Housing Group Pty Ltd [2021] FCAFC 40 AWD Cavallo Investments Pty Ltd v Smokevitch [2021] NSWCATAP 183 Bird v DP (a pseudonym) [2024] HCA 41 Director General of Fair Trading v First National Bank Plc [2001] UK HL 52 Gover v South Australia (1985)…