Banister v Bailair Pty Ltd [2022] NSWCATCD 45

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Banister v Bailair Pty Ltd [2022] NSWCATCD 45 Hearing dates: 02 March 2022 Date of orders: 07 March 2022 Decision date: 07 March 2022 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: The application is dismissed. Catchwords: CONSUMER LAW – Consumer guarantees – Supply of goods – Whether of acceptable quality – Claims against supplier and manufacturer Legislation Cited: Australian Consumer Law (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Lorraine Banister (First Applicant) Graham Banister (Second Applicant) Bailair Pty Ltd (First Respondent) Pioneer International Pty Ltd (Second Respondent) Representation: Applicant (Self-represented) Mr S Bailey (First Respondent) Mr G Haydock (Second Respondent) File Number(s): HB 22/01195 Publication restriction: Nil

REASONS FOR DECISION

Outline 1. The first respondent obtained an air conditioner from the second respondent and installed it in the home of the applicants. Although the applicants sought a refund on the basis that air conditioner was not if acceptable quality, the Tribunal, after considering the evidence and submissions, was not satisfied that the applicants had discharged the onus of proof which they bear.

History of the proceedings 1. On 11 January 2021 Mr and Mrs Banister (the applicants) lodged an application in relation to the supply of an air conditioner, naming Bailair Pty Ltd (Bailair) as the respondent, seeking an amount of $12,848. Their description of the problem in their application was as follows: Two weeks after installation a/c unit started faults (H8) and not holding temperature as per setting. Bailair and Pioneer attended numerous times for service however problems persisted for 6 months. We requested Bailair & Pioneer to take the unit back and refund our money after 6 months of problems. That was on 20th April 2020. Both parties refused! H8 fault is not even mentioned in Pioneer manual!! Our solicitors' correspondence with Bailair commenced on July 22nd 2020. No resolution resulted. 1. At the first directions hearing on 4 March 2021, directions were made for Pioneer International Pty Ltd (Pioneer) to be added as a respondent. On 24 March 2021 directions were made for the provision of documents: by 7 April 2021 in the case of the applicant and by 21 April 2021 in the case of the respondents. Following a hearing on 20 May 2021 there was an appeal which was finalised on 23 December 2021. As a result of that appeal, the application was remitted for a fresh hearing by a different member of the Tribunal. 2. On 27 January 2022 directions were made for the provision of the documents upon which the parties relied: by 4 February in the case of the applicants and by 18 February 2022 in the case of the respondents. The sequence of events for the hearing was indicated and it was noted that there may be an application for an 'in person' hearing. As it appeared that the hearing would be conducted using audio-visual link (AVL) facilities, a link was provided for the assistance of the parties. The following day (ie on 28 January 2022) a notice was issued to advise the parties that a hearing date on 2 March 2022 had been allocated.