Thomson v The Trustee for Van De Wetering Family Trust Trading as Argus Home Security Solutions (Civil Dispute)
[2020] ACAT 10
•11 February 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THOMSON v THE TRUSTEE FOR VAN DE WETERING FAMILY TRUST TRADING AS ARGUS HOME SECURITY SOLUTIONS (Civil Dispute) [2020] ACAT 10
XD 768/2019
Catchwords: CIVIL DISPUTE – differences between fire proof and theft proof safes – misleading and deceptive conduct – safe fit for purpose – dual purposes
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 16, 17, 18
Australian Consumer Law ss 18, 54, 55, 64, 236, 237, 238, 259, 261, 262, 263, 265
Cases cited:Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364
Grant v Australian Knitting Mills Ltd [1936] AC 85
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44
Rasell v Cavalier Marketing (Aust) [1991] 2 Qd R 323
In re B [2008] UKHL 35
Watson v Foxman (1995) 49 NSWLR 315
Winterton Constructions Pty Ltd v Hambros Australia Pty Limited [1992] FCA 881
List of
Texts/Papers cited: Coorey, Adrian, Australian Consumer Law (LexisNexis Butterworths, 2015)
Tribunal:Senior Member A Anforth
Date of Orders: 11 February 2020
Date of Reasons for Decision: 11 February 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 768/2019
BETWEEN:
LINDA MARIE THOMSON
Applicant
AND:
THE TRUSTEE FOR THE VAN DE WETERING FAMILY TRUST
TRADING AS ARGUS HOME SECURITY
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:11 February 2020
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
Summary
1.Ms Thomson (the applicant) purchased a safe from Argus Home Security (the respondent) in October 2018. The applicant verbally stated to the respondent she required a home safe that provided protection against fire and theft. The safe she purchased was the one recommended by the respondent.
2.Ms Thomson contended the safe emitted strong fumes among other faults.
3.The safe was examined by the respondent’s supplier who found no fault.
4.Ms Thomson subsequently contended that the safe did not adequately protect against theft and the display activated inconsistently.
5.Ms Thomson sought to return the safe and a refund on the following grounds:
(a)misleading or deceptive conduct on behalf of the respondent because he failed to provide her with adequate advice; and
(b)failure to provide goods fit for purpose and of acceptable quality due to the safe not being sufficiently theft-resistant, the fumes emitted by the safe, and the touchpad activating intermittently.
6.The respondent submitted the safe was not faulty and denied the allegation of misleading or deceptive conduct.
7.Neither party submitted expert evidence.
8.The Tribunal was not satisfied on the balance of probabilities that the conduct of the respondent through inaction or omission constituted misleading or deceptive conduct or that the safe was unfit for its intended purpose.
History of the proceedings in the tribunal
9.On 21 June 2019 the applicant commenced proceedings XD 768/2019 in the Tribunal in the sum of $870.00 (inclusive of GST) for refund of money paid for supply and installation of a Yale safe, plus the Tribunal filing fee of $74.00, giving a total claim of $944.00.
10.The application annexed several documents, including:
(a)an invoice dated 13 September 2018 from the respondent to the applicant which includes a quote for “supply & install Yale safe YFM/420/FG2”;
(b)a catalogue of Yale safes;[1]
(c)an invoice dated 6 November 2018 from the respondent to the applicant which includes “supply & install Yale safe YFM/520/FG2” for $790.91 (exclusive of GST). “YFM/520/FG2” corresponds to “Document Fire Safe – Extra Large” (the safe) in the catalogue of Yale safes;[2]
(d)an email dated 3 April 2019 from the applicant to the respondent detailing her concerns with the safe and requiring replacement of the safe within 10 working days on the grounds it is not fit for purpose;
(e)an email thread dated 10 to 12 April 2019 between the applicant and respondent, detailing the results of the respondent’s investigation into the applicant’s concerns with the safe;
(f)a report dated 31 May 2019 by electronic security system professional Mr Stephen O’Connor; and
(g)an email dated 22 May 2019 from the applicant to the respondent alleging the respondent breached Australian consumer law by providing goods only partially fit for purpose and inadequate advice.
[1] Assa Abloy Pty Ltd, ‘Yale Safes’, Yale Safes Catalogue (pdf, August 2019) on the Yale Lock website. The applicant requested an upgrade from the quoted YFM/420/FG2 model to the larger YFM/520/FG2 model.
[2] Ibid 3
11.On 2 August 2019, the respondent filed its response to the effect that the safe had been examined by their supplier who found the safe without fault. The response annexed photographs of the battery terminals and compartment of the safe.
12.The parties to the matter had a conference on 1 November 2019. The matter did not settle and timetabling directions were made for parties to file and serve their evidence.
13.On 15 November 2019, the applicant filed and served her submissions and material relied upon. The applicant’s final submission was consistent with her initial application, with more incidents of safe malfunction detailed. Further annexures included:
(a)a catalogue of the Ardel Safe Company’s “Interceptor” safe;[3] and
(b)a report by Mr Stephen O’Connor dated 12 November 2019 to the effect the safe operated correctly but inconsistently.
[3] ‘Interceptor Model: 1750/2070/3690/MAXI’, Ardel Safe Co (pdf) found on the Ardel Safe website
14.The respondent filed further evidence to be relied on in the form of:
(a)email correspondence dated 10 to 12 April 2019 between the respondent, their supplier and the manufacturer, to the effect the safe was not faulty; and
(b)an email from the respondent to the applicant attaching an itemised quote for various security services and supply and installation of a large Yale safe, dated 4 September 2018; and
(c)an email from the applicant to the respondent requesting the (extra-large) safe, dated 4 October 2019.
15.Neither party filed independent expert evidence regarding the quality or operation of the safe.
16.On 18 December 2019 the matter came on for hearing before the Tribunal. The applicant attended in person and informed the Tribunal that Mr O’Connor could be called upon by telephone if required. The respondent was represented by company director Mr Albert van de Wetering in person. Argus Home Security Solutions receptionist Ms Bernadette Van Graan attended in person as witness for the respondent.
17.There was a general discussion in an attempt to define and narrow the issues and reach a resolution to the matter satisfactory to both parties without a hearing. The Tribunal noted the absence of a report from an independent expert, noting neither Mr O’Connor nor the respondent’s supplier who examined the safe fit that criteria. The Tribunal explained the potential monetary costs for the parties in obtaining an expert’s report.
18.The parties expressed unwillingness to move from their respective positions and the matter proceeded to a hearing. The Tribunal gave the parties three options in relation to the hearing and lack of expert evidence:
(a)adjourn the hearing and the parties acquire expert evidence on the quality and operation of the safe;
(b)proceed immediately and have non-expert Mr O’Connor provide evidence via telephone. The respondent would be given the opportunity to cross-examine Mr O’Connor; or
(c)proceed immediately and leave the matter to the Tribunal’s judgement on the evidence before it; not calling upon Mr O’Connor; and fully accepting and acknowledging the Tribunal’s lack of knowledge in relation to safes and any consequences of this lack of knowledge may have upon the outcome.
19.Both parties stated they wanted the matter to be dealt with on the current evidence before the Tribunal. The Tribunal emphasised the parties must each understand, accept and acknowledge that the Tribunal shall make its judgment with no particular knowledge of safes, including types, quality, function, operation and levels of security. The parties said this option continued to be their preference and they accepted the limitations. The Tribunal explained one of the main questions to be answered would be ‘Did the applicant get the item that conforms to the advice she was given, and does it work?’
20.The applicant gave evidence under affirmation and adopted her statement. She reiterated the safe was not strong enough for the purposes of theft protection. The Tribunal questioned what level of security the applicant wanted and how this could be quantified. The applicant stated she wanted a safe which “gives reasonable resistance to being forced open.” The Tribunal explained the onus of proof rested upon the applicant, and she must show the safe was inadequate for purpose as was asserted. Additionally, the applicant needed to convince the Tribunal the information she was given by the respondent was so misleading or so inadequate as to be misleading concerning the level of security that existed.
21.The applicant stated the safe the respondent had recommended was designed as a fire safe and not ‘strong enough’ to provide the level of theft-resistance she required. The applicant repeated the difference between fire, anti-theft and dual-purpose safes was significant, and she required a dual-purpose safe to store valuable documents and heirlooms.
22.The Tribunal questioned whether further and more extreme anti-theft measures were necessary for the applicant, given the safe’s location, size, composition, and lock, and being bolted into the floor. The applicant adhered to her submission, putting forth the respondent “should have known” she required a high level of security as he had provided services to her at her former premises in a housing complex where she had “lived with [among] drugs, violence.” The Tribunal rejected this argument on the basis the respondent was not required to know the applicant’s emotional drivers.
23.The respondent had little further evidence to offer to the Tribunal other than that contained in their written submissions.
24.The Tribunal reserved the decision and informed the parties the Tribunal would make a decision based on the evidence before it.
Consideration of issues
25.The applicant alleges the respondent breached the Australian Consumer Law (the ACL) through:
(a)misleading or deceptive conduct through failing to provide the applicant with sufficient information to make an informed decision regarding the most appropriate product for her needs; and
(b)failure to provide goods fit for purpose and of acceptable quality due to the safe not being sufficiently theft-resistant, the fumes emitted by the safe, and the touchpad activating intermittently.
26.The applicant’s claim amounts to a claim that the respondent did not comply with general protections under section 18 of the ACL and guarantees under sections 54 and 55 of the ACL.
Misleading or deceptive conduct — ACL section 18
27.There is a general prohibition on misleading and deceptive conduct in section 18(1) of the ACL which provides that:
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
28.The test for misleading and deceptive conduct established in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd is summarised as follows:[4]
The threshold test for determining whether conduct is misleading or deceptive for the purposes of s.18 is if the overall impression of the conduct induces or is capable of inducing error.[5]
Whether the overall impression of the conduct induces or is capable of inducing error is a question of fact to be determined in the context of the alleged conduct and relevant surrounding circumstances.[6]
[4] Adrian Coorey, Australian Consumer Law (LexisNexis Butterworths, 2015) [3.30]-[3.31]
[5] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 at [5]
[6] Ibid at [7]
29.The terms ‘misleading’ and ‘deceptive’ are not defined in the ACL, so the ordinary meaning of the words is generally adopted. A misrepresentation of some type is generally required, although the Tribunal determines whether conduct is misleading or deceptive as an objective question of fact in the context of the whole transaction. There is no requirement in section 18 that the respondent either intended to mislead or actually misled the applicant.[7]
[7] ACL sections 236, 237, 238
30.Where misleading conduct is alleged to have occurred orally, special care needs to be taken before determining if the words convey a misleading impression. Due to human memory and the imprecision of language, the Tribunal must be reasonably satisfied representations were misleading in the proved circumstances.[8]
[8] Watson v Foxman (1995) 49 NSWLR 315; adopted in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) [2008] FCA 1364
31.Section 18 of the ACL may be contravened by either act or omission. An omission may occur, for example, if information provided to the consumer is factually correct, but inadequate or incomplete in a material aspect thereby conveying a false impression. However, unless there is a duty to disclose relevant facts or there is a reasonable expectation a relevant fact would be disclosed, silence will not generally amount to misleading or deceptive conduct.[9]
Guarantee as to acceptable quality — ACL section 54
[9] See for example Winterton Constructions Pty Ltd v Hambros Australia Ltd [1992] FCA 881 at [77]
32.Section 54 of the ACL provides a statutory guarantee that goods supplied to a customer, other than by auction, are of acceptable quality. Under section 64, the guarantee cannot be excluded.
33.The definition of acceptable quality under section 54 of the ACL requires consideration of a goods’ fitness for all purposes for which it is commonly supplied – that is, whether the goods are defect-free, of acceptable appearance, safe, and durable such that a reasonable consumer fully acquainted with the goods condition would regard them as acceptable.[10]
[10] ACL section 54(2)
34.In determining if the goods are of an acceptable quality, regard must be given to matters such as nature and price of the goods, statements made about the goods on the packaging, any representation about the goods by the supplier or manufacturer, and any other relevant circumstances.[11]
[11] ACL section 54(3); Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128
35.If the failure of goods is not a ‘major failure’ and can be remedied, the consumer can require the supplier to remedy the failure within a reasonable period.[12] The supplier may choose to replace the goods with an identical item or refund the consumer’s money.[13] If the supplier fails to do this, the consumer may reject the goods and recover the money paid, or have the failure remedied and recover reasonable costs from the supplier.[14]
[12] ACL section 259(2)(a)
[13] ACL section 261
[14] ACL section 259(2)(b), 265
36.If the failure cannot be remedied, or is a major failure, the consumer may either recover compensation for any reduction in value or reject the goods.[15] A major failure is when a consumer would not have bought the goods had they been fully aware of the fault, the goods are unsafe, substantially unfit for purpose, or significantly different from the demonstration model.[16]
[15] ACL section 259(3)
[16] ACL section 262
37.If the consumer is entitled to reject the goods, they must return the goods to the supplier unless there is significant cost in doing so, whereupon the supplier must collect the goods at its own expense.[17]
Guarantee as to fitness for any disclosed purpose — ACL section 55
[17] ACL section 263(2)-(3)
38.Section 55 of the ACL provides a statutory guarantee that goods supplied to a consumer, other than auctioned goods, are reasonably fit for any purpose the consumer made known to the supplier, either expressly or by implication. Whether a consumer has made known the purpose for which goods are required is a question of fact.[18]
Findings of fact
[18] Grant v Australian Knitting Mills Ltd [1936] AC 85; Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; Rasell v Cavalier Marketing (Aust) [1991] 2 Qd R 323
39.The applicant alleges the respondent engaged in misleading or deceptive conduct contrary to section 18 of the ACL. The applicant claims in acquiring the safe, she was provided inadequate information on the safe and types of safes and their features by the respondent such that the respondent’s behaviour constituted misleading conduct. The applicant gave evidence at the hearing that the safe would not withstand being ‘forced open’ and states in her final submission:
One of my requirements was for a dual-purpose safe. I instructed [Mr van de Wetering] that I wanted protection from theft but I also needed fire protection because the village is in a bushfire-risk zone.[19]
[19] Applicant’s final submissions dated 15 November 2019 at [2]
40.The applicant submits:
Mr van de Wetering provided a specification sheet for the safe … but he did not show me a catalogue or explain the different types of safe … I printed a catalogue of Yale safes … show[ing] three types of safe: fire safes, elite safes and certified safes … I asked [Mr van de Wetering] if the Yale fire safes were as strong as the other safes and he replied simply ‘Yes’ … I decided [to] rely on the judgment of Mr van de Wetering.[20]
[20] Applicant’s final submissions dated 15 November 2019 at [3]
41.The applicant claims she has been informed by a locksmith her safe is “not a strong safe,” “Yale fire safes are not as strong as the other Yale safes,” and “a ‘soft’ safe which would not withstand force.” The locksmith further reportedly stated “when you opt for fire resistance in a Yale safe you lose some of the theft protection.”[21]
[21] Applicant’s final submissions dated 15 November 2019 at [14]
42.The applicant alleges the safe is not fit for purpose on this basis. The applicant alleges the respondent’s failure to “explain the difference between the Yale fire safes and the other safes in the Yale range” and to give her “enough information” resulted in the applicant’s failure to make an informed decision regarding the most appropriate product for her needs. The applicant alleges such conduct amounts to misleading or deceptive conduct on the part of the respondent.
43.The respondent holds no duty to provide the applicant “a catalogue or explain the different types of safe and sizes on offer.” The respondent does not have a duty, whether in general law or otherwise, to provide the applicant with further information on safes. The respondent cannot be expected to predict, without direction, the amount of information any one consumer of his security products may require in order to feel comfortable making a choice, nor is he required to provide this extra information.
44.Consumers are expected to be reasonably informed in their consumer decisions, and the applicant provides evidence in her submission she is capable of researching her purchases via the internet and telephoning other suppliers.
45.The two reports the applicant submitted by Mr O’Connor do not contain reference to the theft-resistance capabilities of the safe. The applicant provided no new evidence regarding the anti-theft capability of the safe at the hearing.
46.The applicant submits she instructed the respondent that she required a safe designed to resist both fire and theft. The catalogue of Yale safes submitted by the applicant includes the following features of the safe: “unique touchpad,” “1 billion+ digital user code,” “code scramble input function for privacy,” “silent input option” “time lock when wrong code is entered,” “16mm steel locking bolts,” “hinges protected with 18 mm steel dog-bolts.” These security measures appear reasonably theft-resistance to the extent necessary for the purpose the applicant alleges she made known to the respondent. The fact there may be better safes available does not nullify the safe’s fitness for the purpose its supplier represented, and the consumer made known in this instance.
47.The applicant’s alleged question to the respondent as to whether the safe was “as strong as other safes” is somewhat ambiguous and general. The safe resists fire for 30 minutes longer than the replacement safe the applicant intends to purchase, so in this sense it is indeed as strong (in fact, stronger) than (some) other safes. It may also be as strong as a competitor’s comparative model.
48.The applicant describes in her submissions her discovery the safe was “primarily a fire safe.” Accepting on face value the assertion the safe was primarily a fire safe does not detract from the obvious anti-theft features (described above) of the safe described. It is apparent a secondary purpose of the safe is theft-resistance.
49.There is no evidence the applicant conveyed the weight she placed upon the theft-resistance purpose versus the fire-resistance purpose to the respondent. Given the instructions were verbal, even more caution must be placed in relation to finding the applicant conveyed this need to the respondent. In any event, the product in respect of specifications is reasonably fit for purpose as a fire-resistant and theft-resistant device – as such, there is no breach of section 54 of the ACL on this ground.
50.Given the respondent did not engage in misleading conduct as the safe functions as both a fire safe and a theft-resistant safe, and the information he provided was not so inadequate as to constitute misleading conduct, there was no breach section 18 of the ACL on any ground.
51.The applicant alleges the respondent breached section 54 of the ACL by providing a safe not of ‘acceptable quality’ due to the fumes she alleges the safe emanates. The report by Mr O’Connor dated 31 May 2019 references a “slight smell” of a “lubricant and rust inhibitor,” but Mr O’Connor notes in his report of 12 November 2019 “I did not notice any smell from inside the safe on this occasion.” The representative of the supplier, Mr Danny Shaw, who inspected the safe at the respondent’s shop after the applicant’s complaints, noted he found “no potent smell.”
52.The civil standard of proof requires a claim must be proven on the balance of probabilities to succeed. In other words, the applicant must convince the Tribunal that it is more likely than not the facts relevant to the claim occurred, not that “it might have happened.”[22] There is insufficient evidence to support the claim the safe emits strong fumes.
[22] In re B [2008] UKHL 35
53.The applicant submitted no evidence that such fumes, if accepted at face value, would affect the safe’s quality. A safe protects documents via storing them. The applicant appears to imply the ‘gases’ may affect her documents and other items but has provided no evidence to substantiate this assertion. Additionally, given the applicant’s own ‘expert’ witness describes the “slight smell” as reminiscent of “machine oil” smell used “in the production of metal parts as a lubricant and rust inhibitor,” it seems likely the smell, if it exists, may be present in other metal safes.
54.It is noted by both the applicant and Mr O’Connor that the digital touchpad functions inconsistently, sometimes requiring a “gentle knock” versus sometimes requiring “three or four harder knocks.” It is doubtful that requiring a subjectively ‘harder’ knock to activate the touchpad alone makes the safe not of acceptable quality. Additionally, Mr O’Connor is not an expert witness, and given the respondent’s inability to test Mr O’Connor’s evidence, Mr O’Connor’s report must be given appropriate weight in the circumstances.
55.The applicant has not established that the safe was not of acceptable quality for a finding of breach of section 54 of the ACL.
56.Section 55 of the ACL provides goods supplied to a customer must be reasonably fit for any purpose the consumer made known to the supplier. Furthermore, there is a statutory guarantee that goods will be reasonably fit for any purpose for which the supplier represents they should be reasonably fit. There has been no breach of section 55 of the ACL for the reasons outlined above — the applicant failed to establish the safe is not adequately theft-proof.
57.It is noted that the applicant in her final submissions alleges the product should be deemed to have major failure and she is therefore entitled to refund as remedy. Given the applicant failed to satisfy the Tribunal the safe is faulty, the issue of remedy nor applicability of this provision, need not be addressed.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
XD 768/2019
PARTIES, APPLICANT:
Linda Marie Thomson
PARTIES, RESPONDENT:
The Trustee for the van de Wetering Family Trust trading as Argus Home Security Solutions
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
18 December 2019
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