Gynaecare Services Pty Ltd v Health Staff Solutions Pty Ltd [2019] NSWCATCD 96

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gynaecare Services Pty Ltd v Health Staff Solutions Pty Ltd [2019] NSWCATCD 96 Hearing dates: 29 May 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Consumer and Commercial Division Before: P French, General Member Decision: (1) Health Staff Solutions Pty Ltd must pay Gynaecare Services Pty Ltd the sum of $13,750.00 within 14 days of the date of these orders Catchwords: CONSUMER LAW — Australian Consumer Law (NSW) — Consumer guarantees in relation to the supply of services —Failure to comply with the guarantee as to reasonable time for supply —Guarantees not to be excluded by contract Legislation Cited: Australian Consumer Law (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Miller v Minister for Pensions [1947] 2 All ER 372 Texts Cited: Nil Category: Principal judgment Parties: Gynaecare Services Pty Ltd (Applicant) Health Staff Solutions Pty Ltd (Respondent) Representation: E Boulton (Applicant) E Wayne (Respondent) File Number(s): GEN 19/09264 Publication restriction: Nil

REASONS FOR DECISION

Introduction 1. This is an application by Gynaecare Services Pty Ltd (the consumer) for an order pursuant to section 79N(a) of the Fair Trading Act 1987 (FT Act) that would require Health Staff Solutions Pty Ltd (the trader) to pay it $13,750.00, being the refund of a placement fee it paid to the trader on or about 3 August 2017 in relation the recruitment of a General Practitioner under a contract for the provision of staff recruitment services dated on or about 19 July 2016. The consumer contends that it is entitled to this refund because the trader failed to perform the contract in so far as it concerned this position, and a subsequent variation to the contract, which converted the recruitment objective to a Nurse Manager, within the time frame agreed or within any reasonable time thereafter, contrary to the guarantee as to the supply of services within a reasonable time contained in section 62 of the Australian Consumer Law (ACL). This application was made to the Tribunal on 24 February 2019 (the application). 2. For the reasons set out following, the Tribunal is comfortably satisfied on the evidence before it that the trader did not supply its services to the consumer with respect to the recruitment of the General Practitioner and Nurse Manager positions within any reasonable time, contrary to the guarantee contained in section 62 of the ACL. The consumer was therefore entitled under section 267 of the ACL to terminate the contract for the supply of this service, and pursuant to section 269 of the ACL, is entitled to an order that will recover from the trader the money it paid for this service. The trader has sought to rely upon a term of its contract for the supply of its services which excludes the provision of a refund but confers a 100% credit in respect of the supply of future services. That term is voided by operation of section 64 of the ACL, which prevents the trader from contracting out of the consumer guarantees and remedies provided by the ACL.