Walker v Milano Republic Pty Ltd [2022] NSWCATCD 18

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Walker v Milano Republic Pty Ltd [2022] NSWCATCD 18 Hearing dates: 23 December 2021 Date of orders: 27 January 2022 Decision date: 27 January 2022 Jurisdiction: Consumer and Commercial Division Before: J Drennan, General Member Decision: 1. Milano Republic Pty Ltd is to pay Mitchell Walker $219.00 immediately. 2. Mitchell Walker is to return the goods to Milano Republic Pty Ltd by sending them in the ordinary mail on or before 1 February 2022. Catchwords: CONSUMER CLAIM – Breach of Consumer Guarantee Legislation Cited: Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law') Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Mitchell Walker (Applicant) Milano Republic Pty Limited (Respondent) Representation: Applicant (Self-represented) Respondent (Self-represented) File Number(s): GEN 21/39485 Publication restriction: Nil

REASONS FOR DECISION 1. Mr Walker purchased a metal table from the respondent on 20 July 2021 by way of on-line purchase. He claims that it is not of acceptable quality and wants a refund. 2. Milano Republic Pty Ltd, represented by Mr Supa, deny the claim and argue that Mr Walker has changed his mind and the goods were a clearance item, bought 'as is' therefore no warranty applies. 3. I have jurisdiction to hear this claim as it is a consumer claim in the amount of $219.00.

Consideration 1. The table was advertised as:- 'Ex – Display – Industrial Old Winery Table with timber frame & Aluminium sides – CLEARANCE'. A photograph was included in the advertisement. 2. Mr Walker purchased the item on 20 July 2021 and experienced some delay with delivery. On 30 July 2021 the trader - in response to Mr Walkers enquiry as to when the item would be delivered - emails Mr Walker saying that the order is still in the warehouse and it usually takes 3-10 business days for dispatching, the writer states that she 'assumes that it will leave early next week'. 3. Mr Walker responds with 'Could I please cancel this order?' to which the trader responds that there is an associated fee to cancel. Mr Walker then retracts his request to cancel the order. 4. Mr Walker said that the goods arrived on 10 August 2021 and that he emailed the trader (this email is in the traders evidence) stating that he had attached a photograph and the product does not match the photograph on the website. He does not at this point allege that the goods are not of acceptable quality. 5. The trader responds with an email the same day stating that the product is excluded from returns as it is a clearance item and that this is advertised on their website. 6. On 15 September 2021 Mr Walker emails the respondent claiming that the 'product arrived rusted' and included photographs. 7. The consumer is claiming that the product was not as advertised correctly, arrived rusted and that the supply of the goods amounts to a breach of the consumer guarantee as to acceptable quality. 8. The respondent company assert that the product was as advertised and supplied in acceptable condition and there is no conduct that amounts to a breach of the consumer guarantee as to acceptable quality. They believe that the applicant has changed his mind. The respondents assert that a disclaimer on their website states that these goods are a 'clearance item' and cannot be returned. The statement contained therein is:- 'As a clearance piece - inspection recommended - some imperfections may occur. Return, exchange & standard warranty not applicable. Inspection recommended.' 9. The relevant section of the Competition and Consumer Law Act 2010 (Cth) Sch 2, Australian Consumer Law (the ACL) is Section 54 which states that goods need to be acceptable in appearance and finish and free from defects (54(2)(b) & (c) such that a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to:- * The nature of the goods – I find that these goods are small furniture items; * The price of the goods – I find that these goods were sold for $219.00; * Any statements made about the goods on any packaging or label on the goods; and – I find that no statements on packaging or labels have been made that are relevant to this issue; * Any representation made about the goods by the supplier or manufacturer of the goods – I find that in this instance the supplier has a disclaimer regarding clearance items means that the goods are not returnable and no warranty applies – I address this below. 1. Section 54 further states (at subsection(4) and (5)) that:- * If goods supplied to a consumer are not of acceptable quality; and the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply then the goods are taken to be of acceptable quality. * I find that there is rust on the unit (as can be seen in the photographs). I find that the rust complained of was not specifically drawn to Mr Walker's attention prior to purchase. I cannot see any rust on the unit shown in the website advertisement. I do not consider that rust on an item is an imperfection. The trader did not provide me with any evidence as to what constitutes an imperfection. * If the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. * I find that the rust was not disclosed in any writing or on the website. 1. I find that Mr Walker did not and was not required to examine the goods prior to sale and therefore subsections (6 and 7) do not apply. The trader could have made examination of the goods a prerequisite to the sale but did not, only making a recommendation for inspection. 2. I find that there is no provision in the ACL with regard to 'clearance' items. 3. I find that there is insufficient evidence to support the contention that the consumer changed his mind. When he questioned supply of the goods and was told there would be a fee to cancel he specifically said that he would prefer to receive the goods rather than pay the cancellation fee. 4. For these reasons I am satisfied that the consumer received goods that are not of acceptable quality and that they are goods that he as a reasonable consumer fully acquainted with the state and condition of the goods would not have accepted with rusty components and therefore he is entitled to a refund. 5. I find that the 'disclaimer' does not assist the trader in this instance because the issue complained of was not specifically mentioned and that clearance items are not mentioned in the ACL. 6. As the unit is readily able to be sent through the mail, the consumer is to mail the unit to the trader on or before 1 February 2022 in accordance with section 263(2) of the ACL. I make no order as to costs (of the application) because neither party provided me with any submissions as to why there are special circumstances for the awarding of costs. I note that costs do not ordinarily flow in matters before NCAT unless there are special circumstances.