Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd
[2013] NZHC 1907
•31 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2013-404-002065 [2013] NZHC 1907
UNDER the Fair Trading Act 1986
BETWEEN GODFREY HIRST NZ LIMITED Plaintiff
ANDCAVALIER BREMWORTH LIMITED Defendant
Hearing: 13 May 2013
Appearances: J C L Dixon and J B Hamlin for the Plaintiff
S E Fitzgerald and J Edwards for the Defendant
Judgment: 31 July 2013
JUDGMENT OF GILBERT J
This judgment was delivered by me on 31 July 2013 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:
GODFREY HIRST NZ LIMITED v CAVALIER BREMWORTH LIMITED [2013] NZHC 1907 [31 July 2013]
INDEX
Introduction [1] – [3] Background [4] – [17] The issues [18]
Legal principles [19] – [20]
Did Cavalier Bremworth convey the overall impression
on its website that it was providing the warranties? [21] – [31]
Are the warranties as extensive or valuable as
Cavalier Bremworth claimed? [32]
Lifetime stain and soil resistance warranties [33] – [42]
25 year fade resistance warranty [43] – [47]15 year abrasive wear warranty [48] – [52] Non-disclosure of the diminishing value of the warranties [53] – [54] Non-disclosure of onerous preconditions [55] – [59] Non-disclosure of restrictions on use [60] – [63]
Are the stickers on the carpet samples misleading? [64] – [65]
Stain resistance warranty [66] – [69]
Soil resistance warranty [70]
Fade resistance warranty [71] – [73] Abrasive wear warranty [74] – [76] Non-disclosure of onerous preconditions [77]
Non-disclosure of restrictions on use [78] – [79]
Is the warranties booklet misleading? [80]
Front cover [81] – [84] Food and beverage stains [85] Confusing explanation of rights? [86] – [95]
What relief if any should be given? [96] – [99]
Result [100] – [103]
Introduction
[1] A central issue in this proceeding is whether Cavalier Bremworth promoted warranties in respect of a new range of synthetic carpets in a misleading manner in breach of ss 9 and 13 of the Fair Trading Act 1986. The allegedly misleading promotion involved statements Cavalier Bremworth made on its website and in a letter it sent to carpet retailers introducing the new range. For the reasons given in this judgment from [21] to [31], I have come to the conclusion that some of the statements made by Cavalier Bremworth in these media were misleading. However, Cavalier Bremworth promptly rectified this following service of this proceeding by modifying the wording on its website and sending a further explanatory letter to retailers clarifying the position. It has also given an undertaking to the Court that it will not publish these statements in any media in the future. In these circumstances, I have concluded that while Cavalier Bremworth breached the Fair Trading Act in making these statements, it is not necessary to grant the injunction sought by Godfrey Hirst in relation to them.
[2] Godfrey Hirst further claims that statements made on stickers attached to the backs of carpet samples were also misleading. For the reasons given in this judgment from [64] to [79], I accept one of those claims.
[3] Godfrey Hirst also claims that the warranties booklet issued by the manufacturer of the synthetic fibres used in the carpets is itself misleading. For the reasons given in this judgment from [80] to [95], I reject these claims.
Background
[4] Cavalier Bremworth has been manufacturing and distributing carpet in New Zealand for over 50 years. It predominantly distributes its carpets to retailers, rather than directly to consumers. It is the largest participant in this market in New Zealand.
[5] In mid-March 2013, Cavalier Bremworth introduced the
“Habitat Collection”, a new range of carpets manufactured from synthetic fibres
supplied by INVISTA (Australia) Pty Ltd, a company that supplies yarn worldwide. This was the first time synthetic carpet had been offered under the Cavalier Bremworth branding. INVISTA provides various warranties in respect of the synthetic fibres used in the manufacture of these carpets. In promoting this new range of carpets which are targeted at the mid to upper end of the residential market, Cavalier Bremworth emphasised these warranties, describing them as “superb”, “outstanding” and “impressive”.
[6] In a letter to retailers dated 15 March 2013, Cavalier Bremworth stated:
We’re delighted to introduce a new brand, and some great new SDN1
products!
For more than 50 years, Cavalier Bremworth has earned a reputation for making high quality carpet aimed at the mid to premium end of the market. While our focus has predominantly been wool, we are now moving to introduce non-wool products under a newly created brand – Habitat Collection.
Habitat Collection is an ‘endorsed’ brand carrying the CB monogram in the same way as Bremworth Collection does. It leverages off the strength, quality reputation and brand trust that Cavalier Bremworth enjoys, while providing a way to keep our wool and non-wool products under separate banners.
For the first time, Cavalier Bremworth will be able to compete in the top end of the synthetic segment of the market with a range of great looking products that will offer real benefits to consumers who want quality carpet with outstanding warranties, backed by a trustworthy brand – or in this case, two brands! You can be assured that any product brought to market under the Habitat Collection will have a distinct point of difference and be simply superior.
…
SDN products launched under the Habitat Collection brand are made in conjunction with INVISTA. The new STAINMASTER® SolarMax® carpet is exclusively licensed for manufacture by Cavalier Bremworth in New Zealand and Australia and offers superb warranties.
[7] Godfrey Hirst’s complaint is primarily directed to the next section of this
letter which read:
Limited warranties for STAINMASTER® SolarMax® carpet from INVISTA
include:
Lifetime stain and soil resistance* - specifically engineered fibres repel and lock out stains so spills are easier to clean.
25 year fade resistance* - outstanding colour protection built into every fibre, provide long lasting protection against fading from UV light, atmospheric contaminants and common household cleaners.
15 year abrasive wear – hardwearing fibres designed to spring back to shape and resist crushing, ensure carpet stays looking good, even
under heavy foot traffic.
Lifetime Anti-static protection.
*See STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet for complete details including Terms and Conditions at Bremworth made the following further statements in the letter which
are also relevant to Godfrey Hirst’s claim:
The new products are low-lustre and combine a soft and plush feel for underfoot comfort with the worry-free performance you’d expect from two of the most trusted names in the carpet business – Cavalier Bremworth and STAINMASTER® carpet.
…
Key things for you and your team to know…
1. All Habitat Collection buyers will continue to receive the same level of after-purchase support from Cavalier Bremworth. They’ll get a letter from us confirming the details of their carpet purchase, a copy of the STAINMASTER® SolarMax® carpet care, maintenance and limited warranties booklet…
2. The warranties provided by INVISTA are not from Cavalier Bremworth. INVISTA has a dedicated STAINMASTER carpet service centre available to answer any pre or post-sale enquiries from consumers or retailers, including any warranty questions. The service centre is contactable on 0800 468 420 and their details are in the STAINMASTER® SolarMax® carpet care, maintenance and limited warranties booklet or online at on Thursday, 18 April 2013, Tania Pauling, the general manager of Godfrey Hirst, Cavalier Bremworth’s main competitor, wrote to Brent Wollaston, the chief executive officer of Cavalier Bremworth, claiming that the warranties and Cavalier Bremworth’s description of them were misleading, although she did not
specify how. Ms Pauling asked Mr Wollaston to confirm by midday, the following Monday that Cavalier Bremworth would “change [its] approach now, before the Habitat Collection is launched”. Contrary to Ms Pauling’s understanding, the range had already been launched, in mid-March 2013.
[10] In a reply email sent on Monday, 22 April 2013, Mr Wollaston asked Ms Pauling to provide details of her complaint and advised that he was waiting for a response from INVISTA. Ms Pauling did not respond to this email. Rather than engaging with Cavalier Bremworth regarding the substance of its complaint, Godfrey Hirst filed and served this proceeding later that afternoon. It seeks a declaration that Cavalier Bremworth breached ss 9 and 13 of the Fair Trading Act and an injunction restraining Cavalier Bremworth from making the same, or similar, representations relating to the INVISTA warranties.
[11] Godfrey Hirst claims that Cavalier Bremworth’s promotion of the warranties on its website, in the letter to retailers dated 15 March 2013, and on the stickers attached to the backs of carpet samples was misleading and deceptive because:
(a) it conveyed the impression that consumers would receive warranties from Cavalier Bremworth when that is not the case;2 and
(b) the warranties are not as extensive or as valuable as
Cavalier Bremworth claimed.
[12] Godfrey Hirst also claims that the “STAINMASTER® Carpet Care, Maintenance and Limited Warranties” booklet is misleading because:
(a) it contains implicit representations that the stain resistance warranty is more extensive than it is; and
(b)consumers will be unable to understand their rights under the warranties and will therefore be discouraged from exercising those rights.
[13] Following service of the proceeding and consideration of the specific complaints, Cavalier Bremworth made a number of changes to its promotion of the warranties on its website. Ms Fitzgerald advises that these changes were made within two days of service of the proceeding. The changes were agreed with Godfrey Hirst’s solicitors but were initially made only on an interim basis. However, Cavalier Bremworth later confirmed that the changes will be permanent.
[14] The changes included replacing the heading “Superb warranties with new synthetic ranges” with “Synthetic warranty” and removing some of the statements that had previously been made about the INVISTA warranties. I set out below the previous wording of the “WHAT’S NEW” page on Cavalier Bremworth’s website with the words that have been removed struck through and the replacement wording in square brackets:
SUPERB WARRANTIES WITH NEW SYNTHETIC RANGES[SYNTHETIC WARRANTY]
Cavalier Bremworth has introduced an exclusive range of synthetic carpetsin partnership with global yarn supplier INVISTA.
The first four ranges being released under the label STAINMASTER®SolarMax® carpet are exclusively licensed for manufacture by CavalierBremworth for the New Zealand and Australian markets.
T he new r anges are bei ng int r oduce d under a Cavali er Br emwor t h “e ndorse d
br and” c al led Habi tat Col lect ion.…
Habitat Collection leverages off the strength, quality reputation and brandtrust that Cavalier Bremworth enjoys, while providing a way to keep the
company’s wool a nd synt het i c pr oducts under se par at e banner s.
Supported by superb warranties, the new solution-dyed nylon carpets arelow-lustre and combine a soft and plush feel for underfoot comfort with theworry-free performance that comes from two of the most trusted names inthe business – Cavalier Bremworth and STAINMASTER® carpet.[Synthetic carpets launched under the Habitat Collection are made using yarn supplied by INVISTA. The new STAINMASTER® SolarMax® carpet is exclusively licensed for manufacture by Cavalier Bremworth in New Zealand and Australia with the warranty provided by INVISTA.
The STAINMASTER® carpet with SolarMax™ Fibre Technology is specially made to resist fading from sun exposure as well as aggressive cleaning]
Limited warranties* for STAINMASTER® SolarMax® carpet from
INVISTA include:[Limited warranties from INVISTA for STAINMASTER® SolarMax®
carpet]
Lifetime stain and soil resistance* - specifically engineered fibres
repel and lock out stains so spills are easier to clean.25 year fade resistance* - outstanding colour protection built into
every fibre, provide long lasting protection against fading from UV
light, atmospheric contaminants and common household cleaners.15 year abrasive wear – hardwearing fibres designed to spring back to
shape and resist crushing, ensure carpet stays looking good, even
under heavy foot traffic.Lifetime Anti-static protection.
Click here to download the *STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet for complete details including Terms and Conditions.
[15] Cavalier Bremworth sent a further letter to its retailers on 1 May 2013:
In March of this year, we wrote to you introducing the Habitat Collection range of carpets, which we manufacture using synthetic fibre manufactured by INVISTA under the STAINMASTER® SolarMax® brand. In our letter, we summarised the limited warranties that INVISTA offers on those carpets and provided a copy of the STAINMASTER Carpet Care, Maintenance and Limited Warranties Booklet.
As we highlighted in our 15 March letter, the warranties are provided by INVISTA, not Cavalier Bremworth. INVISTA has a dedicated STAINMASTER® carpet service centre available to answer any pre or post-sale inquiries from customers or retailers, including relating to the warranties. We encourage you to make use of this resource, should you or customers have any queries in relation to the Habitat Collection. The dedicated service centre can be contacted on 0800 468 420.
As is made clear in the Warranty Booklet, the warranties offered do not affect a customer’s rights under the Consumer Guarantees Act 1993. Accordingly, customers are free to and may of course choose to claim under that Act rather than under the INVISTA warranties, if they were to experience any issues with their Habitat Collection carpet.
As we also noted in our 15 March letter, the Habitat Collection sits under our Residential collection (the warranties apply in the case of owner-occupier residences, or tenant installation in a rental property). As you will appreciate, some pre-conditions and exclusions apply to the INVISTA warranties, full details of which can be found in the Warranty Booklet. We believe that these are common across the industry, so may be familiar to you, but by way of follow up to our 15 March letter, we wish to draw the following points to your team’s attention:
(a) The stain resistance warranty covers food and beverage stains (though there are certain exclusions to this), and excludes non-food and beverage stains. Details of the specific exclusions can be found on page 4 of the Warranty Booklet. The warranty pro-rates over a
25 year period, with the pro-rating commencing at year 15.
(b) The soil resistance warranty covers colour change (by reference to the AATCC Gray Scale) from dry soil build up from foot traffic from normal indoor household use, and also pro-rates over a 25 year period, with the pro-rating commencing at year 15.
(c) The fade resistance warranty covers fade (by reference to the AATCC Gray Scale) from sun and atmospheric contaminants, and applies over a 25 year period, pro-rating after year 7.
(d) The 15 year abrasive wear warranty covers fibre loss (10%) (though not crushing), details of which are found at page 6 of the Warranty Booklet.
(e) The Habitat Collection also comes with lifetime anti-static protection.
In order to claim under the INVISTA warranties, customers will need to have proof of purchase, have followed the recommended carpet care and cleaning procedures (see pages 17-21 of the Warranty Booklet for details), and be able to show that they have had their carpet professionally steam cleaned at least every 24 months. As you will be aware, regular steam cleaning is particularly important with synthetic carpets.
As noted, full details of INVISTA’s warranties, pre-conditions and exclusions can be found in the Warranty Booklet. As also noted above, the dedicated INVISTA STAINMASTER® service centre is available to provide any further information and assistance that may be required.
We look forward to continuing to work with you in relation to these new products.
[16] No changes were made to the wording on the stickers on the backs of the carpet samples.
[17] Following the conclusion of the hearing, Cavalier Bremworth gave an undertaking to the Court that it will not publish in any media the statements made about the warranties3 that previously appeared on its website and in its letter to
retailers dated 15 March 2013.
3 Quoted in [7].
The issues
[18] The issues are:
(a) Did Cavalier Bremworth convey the overall impression on its website that it was providing the warranties?
(b)Are the warranties as extensive or valuable as Cavalier Bremworth claimed?
(c) Is the warranties booklet misleading? (d) What relief if any should be given?
Legal principles
[19] Sections 9 and 13 of the Fair Trading Act relevantly provide:
9 Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
13 False or misleading representations
No person shall, in trade, in connection with the supply or possible supply of goods or services or with the promotion by any means of the supply or use of goods or services, -
…
(i) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right, or remedy;
…
[20] The following legal principles are well established:
(a) Whether the conduct complained of is misleading or deceptive is to be determined objectively in the context of the particular circumstances, including the characteristics of the persons said to be affected.4
(b)Conduct is likely to mislead or deceive if it might well happen. There must be a real risk of this occurring, not merely a possibility.5
(c) Where the conduct is directed towards a wide section of the community, the matter is to be assessed having regard to all who come within that section including “the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations”.6
(d)Consumers may be prone to some “looseness of thought”.7 They may not undertake careful analysis and may be influenced by the overall impression conveyed. However, they “will not be lacking in perception and can be expected to bring a reasonable degree of common sense”.8
Did Cavalier Bremworth convey the overall impression on its website that it was providing the warranties?
[21] Godfrey Hirst claims that prospective purchasers looking at Cavalier Bremworth’s website before it was changed would be misled into believing that the warranties were provided by Cavalier Bremworth. Mr Dixon submits that this was the overall impression created by the website.
[22] I accept that some potential buyers could have formed this impression from
looking at Cavalier Bremworth’s website before it was changed. In my view,
4 Red Eagle Corporation Ltd v Ellis [2010] NZSC 20 at [28].
5 Bonz Group Pty Ltd v Cooke [1994] 3 NZLR 216 (HC). Affirmed on appeal in Bonz Group Pty Ltd v Cooke (1996) 7 TCLR 206 (CA).
6 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93; Taco Co of
Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177.
7 Marcol v Commerce Commission [1991] 2 NZLR 502 (HC) at 507.
8 Unilever New Zealand Limited v Cerebos Gregg’s Limited (1994) 6 TCLR 187 (CA) at 192.
Cavalier Bremworth did not make it sufficiently clear that the warranties were provided by INVISTA and not by it.
[23] The heading on Cavalier Bremworth’s website, “SUPERB WARRANTIES WITH NEW SYNTHETIC RANGES”, gave no indication that the warranties were provided by INVISTA and not Cavalier Bremworth. On the contrary, because the claim was made by Cavalier Bremworth on its website without qualification, visitors may have gained the initial impression that the warranties were provided by Cavalier Bremworth. That initial impression was not dispelled in the next five
paragraphs;9 if anything, it was reinforced.
[24] Cavalier Bremworth stated in the first paragraph that it had introduced this new range of synthetic carpets in partnership with INVISTA:
Cavalier Bremworth has introduced an exclusive range of synthetic carpets in partnership with global yarn supplier INVISTA.
The partnership concept may have conveyed the impression that Cavalier Bremworth and INVISTA, as partners in this range of synthetic carpets, were both liable under the warranties for the performance of the carpet.
[25] The second paragraph emphasised Cavalier Bremworth’s status as the holder of an exclusive licence to manufacture the carpets under the STAINMASTER® SolarMax® label for the New Zealand and Australian markets:
The first four ranges being released under the label STAINMASTER® SolarMax® carpet are exclusively licensed for manufacture by Cavalier Bremworth for the New Zealand and Australian markets.
There was no reference to INVISTA in this paragraph. Taken together with the earlier statements, prospective purchasers may have mistakenly assumed that as the exclusive licensed manufacturer of these carpets in New Zealand and in Australia, Cavalier Bremworth was providing the warranties.
[26] The third paragraph also made no reference to INVISTA:
9 The paragraphs quoted in [14]that have now been removed.
The new ranges are being introduced under a Cavalier Bremworth “endorsed brand” called Habitat Collection.
The reference to Cavalier Bremworth’s endorsement of the new carpet ranges may have reinforced the impression that Cavalier Bremworth was backing the performance of the carpet under the warranties.
[27] In the fourth paragraph, Cavalier Bremworth stated:
Habitat Collection leverages off the strength, quality reputation and brand trust that Cavalier Bremworth enjoys, while providing a way to keep the company’s wool and synthetic products under separate banners.
Again, there was no reference to INVISTA. A prospective purchaser could have gained the impression that Cavalier Bremworth was emphasising its own strength, quality reputation and brand trust because these qualities were relevant to its headline claim about “superb warranties”.
[28] The fifth paragraph could also mislead potential purchasers into believing that the warranties were provided by Cavalier Bremworth:
Supported by superb warranties, the new solution-dyed nylon carpets are low-lustre and combine a soft and plush feel for underfoot comfort with the worry-free performance that comes from two of the most trusted names in the business – Cavalier Bremworth and STAINMASTER® carpet.
There was again no reference to INVISTA in this paragraph. The claims that the carpets were supported by superb warranties and that worry-free performance was assured by Cavalier Bremworth as one of the most trusted names in the business could well have misled prospective purchasers into believing that Cavalier Bremworth was providing the warranties, or at least standing behind them.
[29] In my view, the impression created by the heading and the following five paragraphs was that Cavalier Bremworth was providing the warranties. That misleading impression was not corrected by the next statement:
Limited warranties for STAINMASTER® SolarMax® carpet from INVISTA
include…
Cavalier Bremworth did not make it clear that it was not providing or supporting the warranties. Further, because the reference to INVISTA follows the words “carpet from” rather than the words “Limited warranties”, a prospective purchaser could have gained the impression that the carpets were from INVISTA but the warranties were provided by Cavalier Bremworth.
[30] The misleading impression was also not overcome by the reference to the STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet. The reference itself does not assist in clarifying that the warranties are provided by INVISTA rather than Cavalier Bremworth. It simply states:
Click here to download the *STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet for complete details including Terms and Conditions.
[31] As noted, following issue of these proceedings, Cavalier Bremworth promptly amended the wording on its website by deleting these statements. Although that was done on a without prejudice basis, I consider that these changes were appropriate and needed to be made. I consider that this part of Godfrey Hirst’s claim is established; the wording of Cavalier Bremworth’s website before the changes were made conveyed the misleading impression that Cavalier Bremworth was providing the warranties or at least standing behind them.
Are the warranties as extensive or valuable as Cavalier Bremworth claimed?
[32] Godfrey Hirst claims that the lifetime stain and soil resistance warranty, the
25 year fade resistance warranty and the 15 year abrasive wear warranty are not as comprehensive as claimed by Cavalier Bremworth on its website and in its letter to retailers dated 15 March 2013. The statements made by Cavalier Bremworth in these media were the same and I therefore deal with them together. However, I keep in mind that the carpet retailers are a more informed audience and therefore less likely to be misled than prospective purchasers visiting Cavalier Bremworth’s website.
Lifetime stain and soil resistance warranties
[33] Cavalier Bremworth described the stain and soil resistance warranties on its website and in its 15 March 2013 letter to retailers as follows:
Lifetime stain and soil resistance* - specially engineered fibres repel and lock out stains so spills are easier to clean.
[34] Godfrey Hirst claims that by making this statement, Cavalier Bremworth implicitly represented that the carpet has comprehensive lifetime stain and soil resistance warranties, meaning that:
(a) over the life of the carpet it will resist stains caused by common domestic substances, foods and beverages;
(b)over the life of the carpet it will resist soiling caused by common natural substances, including human or pet causes; and
(c) if the carpet did suffer staining or soiling from common household items or natural substances over its life, this would be covered under the warranties.
[35] Godfrey Hirst claims that this implicit representation was misleading because:
(a) the stain resistance warranty excludes all stains caused by non-food or non-beverage items;
(b)the stain resistance warranty excludes stains caused by foods and beverages that contain strongly coloured natural substantive dyes including, mustard, curry powder, turmeric, and herbal tea;
(c) the stain resistance warranty excludes stains caused by substances that change the colour of carpets including food colouring; and
(d)the soil resistance warranty is limited to colour change from dry soil and excludes what Godfrey Hirst claims are common causes of soiling of household carpet, specifically mud, urine, faeces and vomit.
[36] For ease of reference I set out below the statements made by Cavalier Bremworth on its website which mirror the words used in the letter to retailers save for the mode of reference to the warranties booklet:
Limited warranties for STAINMASTER® SolarMax® carpet from INVISTA
include:
Lifetime stain and soil resistance* - specifically engineered fibres repel and lock out stains so spills are easier to clean.
25 year fade resistance* - outstanding colour protection built into every fibre, provide long lasting protection against fading from UV light, atmospheric contaminants and common household cleaners.
15 year abrasive wear – hardwearing fibres designed to spring back to shape and resist crushing, ensure carpet stays looking good, even
under heavy foot traffic.
Lifetime Anti-static protection.
Click here to download the *STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet for complete details including Terms and Conditions.
[37] A visitor to the website investigating the comparatively significant purchase of new carpet would be actively involved in the process of obtaining relevant information. It would have been apparent to any such visitor that:
(a) the warranties were described as “Limited” immediately before and
after the brief reference to the warranties;
(b) only four warranties were referred to and then only by name;
(c) a brief description was provided of the features of the carpet relevant to each of the first three warranties;
(d)the first two warranties were described in terms of “resistance” rather than “proof” indicating that the carpet was stain, soil and fade resistant, not stain, soil and fade proof;
(e) the warranties are subject to terms and conditions; and
(f) full details of the warranties and the applicable terms and conditions could be reviewed by clicking on the link provided. Cavalier Bremworth placed an asterisk next to the description of the first two warranties to draw attention to the link to the Limited Warranties booklet. The reference and link to this booklet were in the same print, both font and size, and appeared immediately below the summary.
[38] I do not consider that a prospective purchaser visiting the website could have overlooked all of these matters and concluded that the carpet would never stain no matter how it may be abused by any “common domestic substances” or any “foods or beverages” regardless of their capacity to stain. The claim is that the fibres provide “resistance” to stains, not that they will never stain under any circumstances. Cavalier Bremworth did not say that the “limited” warranty covered stains caused by all “common domestic substances” or all “foods and beverages”. I consider that prospective purchasers would expect, as a matter of common sense, that the limited stain resistance warranty would be subject to some terms and conditions and may exclude stains caused by some substances, for example, paints, bleaches, inks or dyes. They would understand that they would need to review the Limited Warranties booklet to see whether such stains would be covered. They could do this simply by clicking on the link provided.
[39] Similarly, I do not consider that a prospective purchaser could have been misled by the words “soil resistance” into believing that the carpet would resist “soiling”, not just by soil, but by all “common natural substances”, including all “human or pet causes”. Cavalier Bremworth did not use the word “soiling” let alone soiling caused by all “common natural substances” or “human or pet causes”. A prospective purchaser would apply reasonable common sense and realise that they
would need to click on the link to the warranties booklet to determine the extent of this warranty and whether it covered damage caused by something other than soil.
[40] The carpet retailers are likely to be a more informed audience than the prospective purchasers visiting Cavalier Bremworth’s website. Contrary to Godfrey Hirst’s allegation, it is unlikely that they would have been misled by the words “lifetime stain and soil resistance” into believing that these warranties, described as limited warranties, provided comprehensive coverage with no exclusions. The carpet retailers would have expected that the warranties would be subject to terms and conditions and they would need to look beyond the brief description of the warranties to determine their extent and coverage. This would have been obvious to them from reading Cavalier Bremworth’s letter which drew their attention to the website address where the Limited Warranties booklet could be located “for complete details including Terms and Conditions”. The wording of the warranties was also attached to the letter and the retailers were advised that the printed booklet would be available shortly. The carpet retailers could be expected to familiarise themselves with the terms and conditions of the warranties.
[41] For these reasons, I consider that prospective purchasers visiting the website and the carpet retailers would have looked beyond the few words used to describe the warranties and referred to the warranties booklet to determine their scope. The booklet specifies the exclusions applicable to the stain and soil resistance warranties. Subject to the question as to whether the warranties booklet is itself misleading which I deal with later in this judgment, these parties would not have been misled.
[42] I conclude that the words “lifetime stain and soil resistance” did not convey the implicit representations alleged and were not misleading when viewed in context. I therefore reject this part of Godfrey Hirst’s claim.
25 year fade resistance warranty
[43] Cavalier Bremworth described the fade resistance warranty on its website and in its letter to retailers as follows:
25 year fade resistance* - outstanding colour protection built into every fibre, provide long lasting protection against fading from UV light, atmospheric contaminants and common household cleaners.
[44] Godfrey Hirst claims that Cavalier Bremworth implicitly represented by making this statement that the carpet has a comprehensive 25 year fade resistance warranty, meaning that:
(a) over a 25 year period, it would not noticeably change colour, through fading, as a result of the action of ultra violet light, atmospheric contaminants and common household cleaners; and
(b)if the carpet did noticeably change colour through fading during that period, this would be covered under the warranty.
[45] Godfrey Hirst claims that this implicit representation was misleading because the warranty:
(a) only covers fading from exposure to sunlight or atmospheric contaminants;
(b) excludes changes in carpet colour from spills of household chemicals;
(c) excludes gradual fading over time from cleaning agents and other household items; and
(d)excludes colour change by fading that is noticeable but measures more than 3 on the AATCC Gray Scale,10 where that colour change is due to sunlight or atmospheric contaminants.
[46] The reference to “long-lasting protection against fading from ultra violet light, atmospheric contaminants and common household cleaners” would lead prospective purchasers and carpet retailers into believing that the fade resistance
warranty covers all of these causes of fading. In fact, the warranty only covers
10 The American Association of Textile Chemists and Colourists has produced a scale ranging from 1 being marked colour change to 5 being colour change that is barely detectable, if at all.
fading caused by exposures to sunlight or atmospheric contaminants being ozone or oxides of nitrogen. I accept Godfrey Hirst’s complaint that this statement was misleading as it conveyed the impression that fading caused by common household cleaners was also covered under this warranty.
[47] However, I do not accept that the words used by Cavalier Bremworth conveyed the impression that the carpet would not noticeably change colour as a result of exposure to ultra violet light or atmospheric contaminants. Cavalier Bremworth used the words “fade resistance”, not “fade proof”. It claimed long-lasting protection against fading, not that the carpet would not fade at all. Prospective purchasers and carpet retailers would understand that they would need to review the warranties booklet to determine the extent of the fade resistance covered by the warranty.
15 year abrasive wear warranty
[48] Cavalier Bremworth described the abrasive wear warranty on its website and in its letter to carpet retailers as follows:
15 year abrasive wear – hardwearing fibres designed to spring back to shape and resist crushing, ensure carpet stays looking good, even under heavy foot traffic.
[49] Godfrey Hirst claims that Cavalier Bremworth implicitly represented by making this statement that the carpet has a comprehensive 15 year abrasive wear warranty, meaning that:
(a) over a 15 year period, it would not wear, would maintain its shape, and would not crush; and
(b)if the carpet did suffer from abrasive wear during that period, including crushing, this would be covered under the warranty.
[50] Godfrey Hirst claims that this implicit representation is misleading because the warranty:
(a) covers carpet that has sustained more than 10 per cent fibre loss from the surface pile in any area due to abrasion; and
(b) does not cover other forms of abrasive wear including crushing.
[51] The words “abrasive wear” give little indication of what is covered by this warranty. However, the words written alongside this heading conveyed the impression that the warranty covered crushing. This was the sole performance characteristic referred to. Cavalier Bremworth claimed that the carpet would resist crushing, even under heavy foot traffic, because the fibres were hard-wearing and had been designed to spring back into shape. I consider that prospective purchasers and carpet retailers could have been misled by this statement into believing that the abrasive wear warranty covers crushing caused by heavy foot traffic. In fact, the warranty does not cover crushing, only fibre loss.
[52] While the carpet retailers and most prospective purchasers would review the warranties booklet to determine the scope of cover, I consider that this statement was misleading. I accept this part of Godfrey Hirst’s claim.
Non-disclosure of the diminishing value of the warranties
[53] The website and the letter described the duration of the warranties as “lifetime” in the case of the stain and soil resistance warranty and the anti-static warranty and “25 year” in respect of the fade resistance warranty. Godfrey Hirst claims that the implicit representation is that these warranties apply in full over the specified timeframes and that this is misleading because they reduce in value over time. In particular:
(a) the lifetime warranties apply in full only for the first 15 years. From year 16, the available recovery under the warranty diminishes in yearly increments of 10 per cent, from 90 percent down to 10 per cent of the original value at year 25 and beyond; and
(b)the 25 year fade resistance warranty similarly reduces after the first seven years, down to 10 per cent of the original value at year 25.
[54] The warranties do apply for the stated periods. Cavalier Bremworth did not claim that full recovery would be available under the limited warranties for the entire period. That the available recovery diminishes after 15 years in the case of the lifetime warranties and after seven years in the case of the 25 year fade resistance warranty does not, in my view, make the statements about the warranty periods misleading. For the reasons already given, prospective purchasers and carpet retailers would have seen that the warranties were subject to terms and conditions. This is what they would expect. They would understand that they would need to review the warranties booklet to determine the extent of the cover provided under the warranties which were described as limited. For these reasons, I reject this part of Godfrey Hirst’s claim.
Non-disclosure of onerous preconditions
[55] Godfrey Hirst claims that onerous preconditions apply to the warranties which Cavalier Bremworth did not disclose. These are that the customer must supply proof of purchase and installation dates, and proof of professional steam cleaning of the carpet at no less than two yearly intervals before being able to make a claim. The customer was also required to attempt to clean the affected area using recommended cleaning procedures and, if that failed, have it professionally steam cleaned prior to making a claim under the stain and soil resistance warranties.
[56] The evidence shows that these preconditions are not unusual in the carpet market. Godfrey Hirst Australia, Carpet Court and Victoria Carpets all require proof of purchase and proof of regular professional steam cleaning as qualifying conditions for warranty claims.
[57] Prospective purchasers visiting Cavalier Bremworth’s website and carpet retailers would expect that some preconditions would apply to the warranties and would not be surprised to discover that these included proof of purchase and installation dates and adherence to maintenance procedures. They would understand
that they would need to review the “STAINMASTER® Carpet Care, Maintenance and Limited Warranties booklet” to determine the recommended carpet care and maintenance regime and the relevant preconditions for warranty claims. Carpet retailers would also understand this.
[58] I am not persuaded that the INVISTA warranty preconditions are onerous. It would have been impractical for Cavalier Bremworth to set out all of the relevant terms and conditions on its website or in its letter. The fact that it did not do so was not misleading. In my view, Cavalier Bremworth drew appropriate attention to the relevant terms and conditions by providing the link to the warranties booklet on its website and by providing copies of the warranties to the carpet retailers and a reference to the website address where the booklet could be found.
[59] For the reasons I have given, I reject this part of Godfrey Hirst’s claim.
Non-disclosure of restrictions on use
[60] The warranties only apply to carpet installed in owner-occupied residences and rental properties where the carpet has been purchased by the tenant. The warranties do not cover commercial properties, time-share properties or tenanted properties except where the carpet is purchased by the tenant.
[61] Godfrey Hirst claims that Cavalier Bremworth implicitly represented that the warranties applied in all situations, irrespective of use. I reject that claim. The carpet was clearly identified as having been designed and manufactured for residential use. I do not consider that prospective purchasers or carpet retailers could reasonably have been misled by the website or the letter into believing that the warranties would apply in all situations even if the carpet was used for purposes for which it was not designed, such as in commercial premises.
[62] Alternatively, Godfrey Hirst claims that Cavalier Bremworth implicitly represented that the warranties would apply in all cases where the carpet was put to residential use. Cavalier Bremworth did not make any such claim. Nor, in my view, did it mislead prospective purchasers or carpet retailers into believing that this was
the case. It was readily apparent from the website and the letter that the warranties were limited and subject to terms and conditions. Prospective purchasers and retailers would understand that they would have to review these terms and conditions to see whether the limited warranties applied in all residential installations regardless of the circumstances.
[63] For these reasons, I reject this part of Godfrey Hirst’s claim.
Are the stickers on the carpet samples misleading?
[64] I set out below the relevant statements on the stickers attached to the backs of the carpet samples:
Exceptional fade protection
STAINMASTER® SolarMax® carpet is specially manufactured to resist fading from sun exposure, atmospheric contaminants and aggressive cleaning. Colours stay vibrant, making it the ideal carpet for bright sunny rooms with big windows.
Enhanced durability
Built to endure tough foot traffic and busy lives, STAINMASTER® SolarMax® carpet is not only made to last, it will stay as inviting and comfortable as the day you first bought it for longer.
Trusted stain resistance
INVISTA has spent over 25 years formulating stain blocking technology to ensure our carpet is easy for you to keep clean and protected against common household spills and stains. Including red wine and coffee!
Limited* warranties
- Lifetime stain resistance#
- Lifetime soil resistance#
- 25 year fade resistance##
- 15 year abrasive wear
- Life of carpet anti-static
#Prorata after 15 years. ##Prorata after 7 years.
Immediately below the statements quoted above was a quick response link11 to the warranties booklet on the website.
11 Barcode that can be read using a smartphone which links directly to a website.
[65] Godfrey Hirst claims that by making these statements Cavalier Bremworth made the same, or materially the same, implicit representations as it made on the website and in the letter to carpet retailers dealt with above.
Stain resistance warranty
[66] Godfrey Hirst claims that Cavalier Bremworth implicitly represented that:
(a) the carpet would resist stains caused by common household substances, foods and beverages including stains from red wine and coffee; and
(b)if the carpet suffered from staining from such substances over its life, this would be covered under the warranty.
[67] Prospective purchasers reading the stickers on the backs of the carpet samples might well draw a link between the sections headed “Trusted stain resistance” and “Limited warranties” and conclude that the “Lifetime stain resistance” warranty covered “common household spills and stains, including red wine and coffee”. For the reasons I have already given, I do not consider that prospective purchasers would have been misled into believing that all common household spills were covered by the limited stain resistance warranty. Many common household spills are covered by the warranty. The fact that some spills are excluded does not mean that the statement was misleading.
[68] If the warranty did not cover stains caused by red wine or coffee, then that part of the statement would clearly be misleading. Cavalier Bremworth responds in its statement of defence that stains caused by red wine and coffee are covered by the warranties but Cavalier Bremworth does not provide the warranties and cannot bind INVISTA to this position.
[69] However, it appears that the relevant sticker is produced by INVISTA, not Cavalier Bremworth. INVISTA therefore appears to be making the claim that the warranty covers stains caused by spillages of red wine and coffee. The stain
resistance warranty provided by INVISTA covers stains caused by all food and beverages other than those containing strongly coloured natural substantive dyes as found in, for example, mustard, curry powder, turmeric and herbal tea. There is no reference to red wine and coffee being specifically excluded. Godfrey Hirst has not provided any evidence to show that INVISTA would be entitled to decline a claim under the stain resistance warranty for stains caused by red wine or coffee. I consider that stains caused by such spillages would be covered under the warranty. I therefore conclude that this part of the statement was not misleading.
Soil resistance warranty
[70] Unlike the stain resistance warranty, there is no text in any of the earlier three sections on the stickers relating to soil resistance. However, Godfrey Hirst claims that the name given to the warranty, “lifetime soil resistance”, carries the implicit representation that over the life of the carpet it will resist soiling by “common natural substances, including human or pet causes” and that if it does suffer soiling from these causes over its life, then this will be covered under the warranty. For the reasons already given, I consider that prospective purchasers and carpet retailers would realise as a matter of common sense that they would need to review the terms and conditions of the warranties to determine their scope. They would not conclude, merely by reading the three words used to describe the warranty that “soiling” from all “common natural substances”, including all “human or pet causes” would be fully covered under this limited warranty. I reject this part of Godfrey Hirst’s claim.
Fade resistance warranty
[71] Under the first section of the sticker headed “Exceptional fade protection”, it is claimed that the carpet has been specially manufactured to resist fading from sun exposure, atmospheric contaminants and aggressive cleaning. Godfrey Hirst claims that this statement, taken together with the words “25 year fade resistance” in the fourth section headed “Limited warranties”, amounted to an implicit representation that the carpet will not noticeably change colour as a result of exposure to ultra violet light, atmospheric contaminants, and common household cleaners even when these
are used aggressively to clean the carpet. Godfrey Hirst claims that these statements were misleading because the warranty:
(a) only covers exposure to sunlight or atmospheric contaminants;
(b) excludes changes in carpet colour from spills of household chemicals; (c) excludes gradual fading over time from cleaning agents and other
household items; and
(d)excludes colour change by fading that is noticeable but measures more than 3 on the AATCC Gray Scale.
[72] I consider that the stickers convey the impression that the fade resistance warranty extends beyond fading caused by exposure to ultra violet light and atmospheric contaminants and covers fading caused by cleaning, even aggressive cleaning, over the period of the warranty. This is misleading because the warranty only covers exposure to sunlight or atmospheric contaminants. It does not cover fading caused by cleaning. To this extent, I accept Godfrey Hirst’s claim that the statements made on the stickers concerning fade resistance are misleading.
[73] However, for the reasons already given, I do not accept Godfrey Hirst’s claim that the statements are misleading because a defined level of colour change determined by an objective measure is required before a qualifying claim can be made under the warranty.
Abrasive wear warranty
[74] The “Enhanced durability” claim on the stickers is that the carpet is:
Built to endure tough foot traffic and busy lives, STAINMASTER® SolarMax® carpet is not only made to last, it will stay as inviting and comfortable as the day you first bought it for longer.
[75] Godfrey Hirst claims that this statement, read together with the words “15 year abrasive wear” in the “Limited warranties” section, amounts to an implicit representation that:
(a) the carpet will maintain its shape and not wear or crush even if subjected to heavy foot traffic; and
(b)if the carpet does suffer from abrasive wear including “fuzzing, matting and crushing” during that period, it will be covered under the warranty.
[76] There is no obvious connection between the enhanced durability claim that the carpet has been built to endure foot traffic and the abrasive wear warranty referred to in the limited warranties section. I do not consider that prospective purchasers would be misled by these statements into believing that the abrasive wear warranty would cover damage caused by foot traffic in the form of fuzzing, matting and crushing as alleged by Godfrey Hirst. In my view, prospective purchasers would appreciate that they would need to consult the warranties booklet to determine the scope of the cover provided by the limited abrasive wear warranty.
Non-disclosure of onerous preconditions
[77] Godfrey Hirst makes the same complaint in relation to the carpet samples as it did regarding the website and letter to retailers, namely that consumers would be misled into believing that there were no onerous preconditions attached to any of the warranties. As already discussed, preconditions such as proof of purchase and appropriate maintenance are common in the industry and likely to be expected by prospective purchasers. In my view, these are not onerous preconditions. In any event, I consider that prospective purchasers would appreciate that that they would need to review the warranties booklet to determine the applicable preconditions and other terms and conditions of the warranties.
[78] Two main stickers are attached to the backs of the carpet samples. Godfrey Hirst’s complaints relate to only one of these stickers, being the sticker that appears to have been supplied by INVISTA. The four sections to which I have referred above appear alongside a photograph of carpet installed in a home. There are eight lines of small print beneath this photograph. The second of these reads:
Limited Warranties apply to domestic use by the consumer and do not apply to carpet that has been put to commercial or abnormal use.
Godfrey Hirst claims that this statement carries an implicit representation that the warranties cover all of the Habitat Collection range when put to domestic or residential use.
[79] Prospective purchasers, whether home owners or tenants, would understand from this statement that the limited warranties only apply if the carpet is used by the consumer for domestic rather than commercial or abnormal use. That is an accurate statement and is not misleading. I reject this part of Godfrey Hirst’s claim.
Is the warranties booklet misleading?
[80] Godfrey Hirst makes three complaints about the warranties booklet. First, it claims that the front cover, which has a picture of a young girl who has spilt icecream with a yellow coating on the carpet, is misleading. This is based on its contention that stains caused by such spills would not be covered by the stain resistance warranty. Second, Godfrey Hirst says that the statement in the booklet
that “the surface pile of your carpet will resist most food and beverage stains12
(except as noted below) occurring during normal residential use (‘covered stains’)” is misleading because, according to Godfrey Hirst, the warranty excludes stains caused by most food and beverages. Third, Godfrey Hirst claims that the booklet is misleading because purchasers will have difficulty understanding their rights under
the warranties and accordingly will be discouraged from exercising those rights.
12 Emphasis in original.
[81] In my view, the warranties booklet would be misleading if the spillage depicted on the cover of icecream with a yellow coating is not covered by the stain resistance warranty. However, I consider that this is not the case.
[82] The only stains caused by foods that are excluded from the scope of the warranty are those that contain strongly coloured natural substantive dyes such as those found in mustard, curry powder, turmeric and herbal tea. Godfrey Hirst presented no evidence to establish that the yellow coating on the icecream contained a strongly coloured natural substantive dye fitting this description.
[83] The stain warranty also excludes stains caused by dyes, such as clothing dyes and food colouring, bleaches, acne medications, drain cleaners and plant food. The yellow coating on the icecream is not food colouring. The fact that it might contain food colouring does not mean that it comes within the exclusion. I consider that INVISTA would not be entitled to reject a claim under the warranty for a stain caused by a spillage of this type.
[84] For these reasons, I reject this part of Godfrey Hirst’s claim.
Food and beverage stains
[85] INVISTA states in the warranties booklet that the surface pile of the carpet will resist most food and beverage stains, except as noted. The only foods and beverages excluded from the warranty are those that contain strongly coloured natural substantive dyes such as those found in mustard, curry powder, turmeric and herbal tea. Godfrey Hirst has not provided any evidence that most foods and beverages contain strongly coloured natural substantive dyes of this type. Godfrey Hirst has therefore not established that INVISTA’s claim is incorrect or misleading.
[86] Godfrey Hirst claims that purchasers will not be able to determine their rights under the warranties because of the extent and nature of the exclusions and qualifications. It claims that purchasers will be left in sufficient doubt as to their rights that they will be discouraged from exercising them.
[87] Godfrey Hirst’s first complaint is that the scope of cover under the anti-static warranty is unclear from the warranties booklet. This is because there is a table on page 3 of the booklet under a heading “Limited Warranties At A Glance” which lists the warranties and their duration. For three of the warranties, fade resistance, stain resistance and soil resistance, the words “Pro-rata” are added after the stated duration whereas these words are not used in relation to the abrasive wear and anti-static warranties. However, there is a further table on page 7 of the booklet, which indicates that the lifetime anti-static warranty pro-rates from year 16, as do the lifetime stain and soil resistance warranties.
[88] I accept that consumers may find the table on page 3 of the booklet confusing because there is no reference to “Pro-rata” in the column headed “Anti-Static” whereas it has been included in the fade resistance and soil resistance columns. However, the words “Pro-rata” simply draw attention to the fact that the amount payable under a claim reduces over time. This information is found on the chart on page 7 of the booklet. It is clear from this chart that the amount recoverable under the anti-static warranty reduces from year 16 in the manner set out in the table. While it would have been preferable for the summary chart on page 3 to have included the words “Pro-rata” in the anti-static column so as to be consistent with the treatment of the other warranties subject to this abatement, I consider that the booklet is sufficiently clear that the abatement applies to that warranty as well.
[89] Godfrey Hirst’s second complaint is that the warranties booklet creates an impression that the stain resistance warranty covers most food and beverage stains. This complaint is based on Godfrey Hirst’s interpretation of the extent of the exclusions from the scope of this warranty. For the reasons I have already given, I do not accept Godfrey Hirst’s interpretation. There is no evidence to show that the
warranties do not cover most food and beverage stains. I therefore reject this complaint.
[90] Godfrey Hirst’s third complaint is that the abrasive wear warranty only covers fibre loss, not other forms of abrasive wear. In my view, there is no substance in this complaint. The booklet makes it quite clear that the warranty covers fibre loss due to abrasion but does not include other types of damage which are set out.
[91] Godfrey Hirst’s fourth complaint concerns the use of the words “noticeable colour change” in the fade resistance warranty. These words first appear in the warranties booklet, in inverted commas followed by an asterisk, in the section on page 5 dealing with the soil resistance warranty. The asterisk draws attention to the definition of these words which appears at the foot of the section headed “Soil Resistance Limited Warranty”. The words are defined to mean “a rating of 3 or less on the American Association of Textile Chemists and Colourists [AATCC] Gray Scale for Colour Change”.
[92] Godfrey Hirst points out that the fade resistance warranty also refers to the words “noticeable colour change” but does not place them in inverted commas or refer the reader back to the earlier definition. In the absence of any such reference, Godfrey Hirst suggests that consumers might not understand what the words “noticeable colour change” mean for the purposes of the fade resistance warranty. It claims that this is particularly so given that the next time those words are used in the booklet, which deals with other carpet types, they again appear in inverted commas followed by an asterisk and the same definition is repeated.
[93] I do not consider that there is any substance in this complaint either. It may have been possible to improve the drafting of this part of the booklet but I am not persuaded that consumers are likely to be misled as to the degree of colour change required to justify a claim under the fade resistance warranty. In my view, it is clear enough that “noticeable colour change” is a defined term. Any consumer reading the three pages of the booklet setting out the applicable warranties would understand that those words have the same meaning as specified when they are first used.
[94] Fifth, Godfrey Hirst complains that the booklet provides no assistance as to how the “pro-rata” reduction applies. I do not agree. The table sets out the applicable percentage recoveries available over the specified term of the warranties.
[95] Next, Godfrey Hirst claims that the exclusions and qualifications mean that the warranties offer little, if any, value over and above the rights available to consumers under the Consumer Guarantees Act 1993. This claim is partly based on Godfrey Hirst’s misconception that most food and beverage stains are excluded from the scope of the stain resistance warranty. For the reasons I have given I reject that part of Godfrey Hirst’s claim. I am not persuaded on the evidence that the booklet is misleading in suggesting that consumers will receive additional rights under the limited warranties to those assured by the Consumer Guarantees Act.
What relief, if any, should be given?
[96] I have found that Cavalier Bremworth breached ss 9 and 13 of the
Fair Trading Act in the following respects:
(a) by conveying the misleading impression on its website that it was providing the warranties;13
(b)by conveying the misleading impression on its website, in its letter to carpet retailers dated 15 March 2013, and on the backs of the carpet samples that the fade resistance warranty covers fading caused by common household cleaners and cleaning;14 and
(c) by conveying the misleading impression on its website, and in its letter to carpet retailers dated 15 March 2013 that the abrasive wear warranty covers crushing caused by heavy foot traffic.15
[97] The misleading statements on the website and in the letter to carpet retailers
were promptly corrected as soon as the issue was drawn to Cavalier Bremworth’s
13 See [21] to [31].
14 See [43] to [46] and [71], [72].
15 See [48] to [52].
[98] attention by the service of this proceeding. Further, Cavalier Bremworth has given an undertaking to the Court that it will not repeat the misleading statements in any media. In these circumstances, I do not consider that it is necessary to grant the injunction sought by Godfrey Hirst. It is not necessary to issue an injunction to restrain Cavalier Bremworth from doing what it has already undertaken to the Court that it will not do.
[99] Nor do I consider that it is necessary to make a declaration that Cavalier Bremworth breached the Fair Trading Act in these publications. In my view, issuing such a declaration would serve no useful purpose in the circumstances of this case.
[100] However, Cavalier Bremworth has made no changes to the wording on the stickers attached to the backs of the carpet samples. This wording conveys the misleading impression that the fade resistance warranty covers cleaning when it does not. It is not in the public interest for this misleading impression to be maintained. Although an order by way of injunction is a discretionary remedy, I consider that such an order should be made in relation to this part of the wording on the stickers attached to the carpet samples.
Result
[101] I make an order pursuant to s 41 of the Fair Trading Act by way of permanent injunction restraining Cavalier Bremworth from publishing or distributing material that represents, implicitly or explicitly, that the fade resistance warranty covers fading as a result of cleaning or the use of common household cleaners.
[102] I decline to make any of the other orders sought by Godfrey Hirst except as to costs.
[103] Any application for costs should be made by memorandum to be filed and served within 14 days of the date of this judgment. Any memorandum in reply is to
be filed and served within 14 days thereafter.
M A Gilbert J
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