Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sara Osaulenko v Shellie Goodchild and Abby Clark and Mark Kamphius t/as Equiscene [2014] NSWCATCD 146 Decision date: 31 July 2014 Before: K Holwell, General Member Decision: The application is dismissed Category: Principal judgment Parties: Sara Osaulenko (applicant) Shellie Goodchild and Abby Clark and Mark Kamphius t/as Equiscene (respondent) The parties appeared in person File Number(s): GEN 14/01872 Application 1 By an application filed 10 January 2014 the applicant sought a money order in the sum of $8,000.00 in respect of the purchase price of a horse and related costs. Jurisdiction 2 The Tribunal has jurisdiction to hear and determine this application pursuant to the Consumer Claims Act 1998 (NSW). The applicant is a consumer. The second respondent is a supplier of goods or services. The first respondent was the agent of the second respondent. The supply was in New South Wales. The claim is brought within the time limit in the legislation. Proceedings 3 The application was listed for a directions hearing on 12 February 2014 but that hearing was adjourned owing to the unavailability of one of the parties. A directions hearing was held on 16 February 2014. The case could not be settled on that day and it was set down for hearing on 17 April 2014. It could not be heard on that day owing to problems with the availability of both respondents. A subsequent hearing date was allocated on 5 June 2014. The case was heard on that day and thereafter the decision was reserved pending the giving of these reasons. The hearing was sound recorded. Evidence 4 Oral evidence was given by the parties. A considerable number of documents and witness statements were tendered. Videos of the horse were played. Photographs were also tendered. 5 It is not practical to recount all the oral evidence or the contents of the documents. In making findings I shall endeavour to refer to the main features of the evidence. Findings are made on the balance of probabilities. The applicant has the onus of proof. The Law 6 Consumer guarantees apply to conduct occurring in trade or commerce after 1 January 2011. The applicant is a consumer for the purposes of the guarantees. A consumer's remedies include a refund of moneys, replacement or repair of goods and damages. 7 Section 54 of Australian Consumer Law imposes a guarantee that goods supplied to a consumer in trade or commerce (other than by way of auction) will be of acceptable quality. For the guarantee to be imposed there is only one pre-condition, namely that the supply must have occurred in trade or commerce. However, the guarantee will not be imposed in relation to defects drawn to the consumer's attention or where the consumer has inspected the goods in relation to defects that the examination ought to have revealed or in relation to defects arising out of abnormal use. 8 Strict liability applies in that the supplier of goods will be liable if the goods are not of acceptable quality even though the supplier may not be to blame in respect of the fault with the goods. 9 Goods are acceptable quality if they are (a) fit for all the purposes for which goods of that kind are commonly supplied; (b) acceptable in appearance and finish; (c) free from defects; (d) safe and (e) durable as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects in the goods) would regard as acceptable. 10 The following matters may have to be considered (a) the nature of the goods; (b) the price of the goods (if relevant); (c) any statements made about the goods on any packaging or labels; (d) any representation made about the goods by the supplier or manufacturer of the goods and (e) any other relevant circumstances relating to the supply of the goods. 11 The Australian Consumer Law by s 54(7) provides that goods do not fail to be of acceptable quality if (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality. Findings 12 A horse named Langtree Double Puzzle was owned by the second respondent. 13 In November 2012 the second respondent sent the horse to the first respondent to endeavour to sell it. 14 In May 2013 the first respondent advertised the horse for sale. The horse was eight years old. It was described as an ultimate professional, that it was recently schooled, that it worked like a machine and had a fabulous work ethic. It was said that it was not a beginner's pony but it would suit a competent child. 15 The horse had been at horse shows in Victoria and Adelaide in 2011 and 2012. Videos showed the horse during those years being ridden by children without any apparent problems. 16 Another video was shown with the first respondent's daughter riding the horse prior to sale. Whilst the riding was in the background of the picture, there were no obvious problems with the child riding the horse. 17 In August 2013 the applicant travelled to the first respondent's premises to inspect the horse. It was firstly ridden by the first respondent's daughter and secondly by the applicant. The examination of the horse by the applicant was very thorough. The applicant states that she rode the horse for one hour. The defects later complained of by the applicant were not apparent during this examination. 18 The first respondent states, and I accept, that she told the applicant that the horse pawed the ground when tied up and that it had bitten her once. 19 The horse was transported to the applicant's property in western Sydney. The applicant reported to the first respondent that the horse arrived without incident. She said "arrived this morning and was a gentleman, walked calm off float into paddock and grazed very relaxed". The inference here is that the horse was not injured whilst being transported to Sydney. 20 Shortly thereafter the horse had a number of problems. He appears to be easily spooked, he has anxiety, he is difficult to ride and he throws his head up when pressure is put on his mouth. Video evidence confirms these problems. The video of the first respondent's daughter riding the horse and the photographs of the daughter's riding of the horse and care of the horse suggest that the horse did not have these problems at the time of sale. 21 In December 2013 a chiropractor inspected the horse. His report following the inspection is as follows: "A 9 yr old pony presented in a moderate to severe state of agitation associated with head tossing and mouthing the bit. On examination a restriction of C4/5 with a bony end feel was found, possibly due to an old trauma with possible neurological involvement but no loss of muscle tone. A pelvic restriction was also noted. Behavioural problems with this horse make it unsuitable for riding. Further test would be required to determine the cause of the problems". 22 This evidence is unconvincing in that the opinion is qualified by the two possibilities and the necessity to have further tests carried out before coming to a definitive view as to the cause of the problems. The applicant has not produced any evidence from a veterinary surgeon or consultant as to (a) whether the horse has had an injury; (b) the cause of the current problems or (c) whether the horse could have been injured at the time of purchase. 23 Two adult persons have provided statements confirming the problems with the horse when being ridden or when attempts are made to ride it. 24 The second respondent states that apart from being micro-chipped the horse has not received veterinary treatment. 25 Both the first and second respondents have provided testimonials conforming their good character and ethical practices in the equine industry. 26 On the other hand, the applicant has one credibility problem. In December 2013 she advertised the horse for sale. In that advertisement the applicant represented that the horse was too advanced for her, that it would be suitable for someone looking for a second pony and that it had a soft mouth and was easy to stop. There was no mention in the advertisement of the alleged problems with the horse being the subject of these proceedings. The contents of the advertisement are clearly inconsistent with the applicant's version of the behaviour of the horse at the time the applicant attempted to sell it. The applicant claimed at the hearing that at the time she attempted to sell the horse and composed the advertisement she was suffering from depression and was not thinking correctly. She subsequently withdrew the horse from sale and removed the advertisement. 27 After the purchase the applicant contacted the respondents on numerous occasions by text message, telephone, facebook and email. The contact was so intense it required both respondents to seek legal advice. 28 The respondents claim that the problems with the horse are associated with the way the applicant is caring for the horse, its new surroundings, that it is in a paddock alone, the way that the applicant was feeding the horse and the way the applicant was riding it. 29 I am satisfied that the first respondent did not misrepresent the horse when she advertised it for sale. It had clearly been a child's pony. It had been ridden by several children. It had been exhibited at several shows. The vidoes from 2011 and 2012 showed that it worked professionally and it was fair for the first respondent to say that it had a good work ethic. 30 I am satisfied that the first respondent disclosed to the applicant that the horse had one behavioural problem, namely pawing the ground when tied up and that it did bite. As these defects were disclosed, the applicant cannot complain about them later. 31 31. The main problem of the horse throwing its head via either a neck problem or a mouth problem was not evident at the time the applicant made the sale inspection. 32 The applicant suggests that the first respondent had the horse under sedation that the time. This is denied by both respondents. It is a claim that the applicant cannot prove. 33 Consumers that do not inspect goods may be in a better position re a claim pursuant to the consumer guarantees than those that carry out inspections. Also those that do cursory inspections may be in a better position that those who carry out a thorough inspection. As stated previously the law is that goods do not fail to be of acceptable quality if the consumer examines the goods prior to purchase and the examination ought reasonably to have revealed that the goods were not of acceptable quality. 34 The behavioural problems with the horse may be caused by several factors such as the new surroundings, feeding, care, personnel, an injury etc. I am satisfied that the current behavioural problems are not matters for which the respondents would be liable because the horse was not displaying these problems at the time of sale. 35 The issue with the horse throwing its head via a neck or mouth problem was not in existence at the time of sale. The applicant rode the horse for some time. This is a defect which can be observed outwardly. It is a defect which the examination at the time of purchase ought to have revealed. It was not revealed at the inspection. The inference must be that the problem did not exist at the time of sale and that it has arisen after the sale. The cause of the problem has not been ascertained. 36 The applicant does not have evidence from a veterinary professional that the horse had an internal problem at the time of sale which could not be discovered via her examination. As stated previously the chiropractor's report is unconvincing because it is too qualified. 37 I have to find on the balance of probabilities that at the time of sale the horse was acceptable quality, that the defects of which the applicant now complains could have been discoverable by the examination she performed, that the horse was not exhibiting these defects at the inspection and there is no expert evidence of any latent defect at the time of sale which could not have been determined by inspection. The inference is that the problems have arisen after the sale. Conclusions 38 For these reasons the applicant cannot prove that either of the respondents are liable to her and the application has to be dismissed. K Holwell General Member Civil and Administrative Tribunal of New South Wales 31 July 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2014