My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: My Pool Safety Inspector Pty Ltd v MCM Sutherland Pty Ltd [2024] NSWCATAP 58 Hearing dates: 5 February 2024 Date of orders: 10 April 2024 Decision date: 10 April 2024 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member RC Titterton OAM, Senior Member Decision: (1) The appeal is allowed. (2) Orders made on 23 October 2023 in proceedings MV 23/14391 are set aside. (3) In substitution for the orders made by the Tribunal, the following orders are made: "1. MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd the sum of $33,673.77 within 14 days of the date of these orders. 2. MCM Sutherland Pty Ltd is to pay My Pool Safety Inspector Pty Ltd's costs of the Tribunal proceedings in the sum of $578.30 within 14 days of the date of these orders." (4) The respondent is to pay the appellant's costs of the appeal in the sum of $972.00 within 14 days of the date of these orders." (5) If either party seeks a different costs order in relation to the Tribunal proceedings and/or the appeal proceedings, the following orders apply: (a) The costs orders made above cease to have effect. (b) The party seeking a different costs order (the costs applicant) is provide to the other party (the costs respondent) and the Appeal Registry any evidence and submissions in support of the different costs order within 14 days of the date of these orders. (c) The costs respondent is to give to the costs applicant and the Appeal Registry any evidence and submissions in response to the application for a different costs order within 28 days of the date of these orders. (d) The costs applicant is to give to the costs respondent and the Appeal Registry any evidence or submissions in reply within 35 days of the date of these orders. Catchwords: APPEALS – Compensation claim – question of law – Tribunal ordering a refund of the purchase price rather than compensation for the reasonable cost of repairs as sought Legislation Cited: Australian Consumer Law, ss 54, 259, 260, 263 Civil and Administrative Tribunal Act 2013 (NSW), ss 80, 81; cl 12 of Sch 4 Civil and Administrative Tribunal Rules 2014 (NSW), rr 4, 25 Fair Trading Act 1987 (NSW), ss 79E, 79I, 79J Motor Dealers and Repairers Act 2013 (NSW), ss 68, 69, 77 Cases Cited: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Cachia v Hanes (1994) 179 CLR 403 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Latoudis v Casey [1990] 170 CLR 534 Malkinson v Trim [2003] 2 All ER 356 Oshlack v Richmond River Council (1998) 193 CLR 72 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: N/A Category: Principal judgment Parties: My Pool Safety Inspector Pty Ltd – Appellant MCM Sutherland Pty Ltd – Respondent Representation: T Yeoh (Appellant) A Penafiel (Respondent) File Number(s): 2023/348145 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 October 2023 Before: P Millar, General Member File Number(s): MV 23/14391