Total Health Brookvale Pty Ltd v Smart Australia Developments Pty Ltd [2015] NSWCATCD 56

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Total Health Brookvale Pty Ltd v Smart Australia Developments Pty Ltd [2015] NSWCATCD 56 Hearing dates: 31 March 2015 Decision date: 28 April 2015 Jurisdiction: Consumer and Commercial Division Before: Margaret Mary McCue, General Member Decision: Smart Australia Developments Pty Ltd t/a APPS Together,Suite 1, 23 Main Street VarsityLakes 4227 Australia is to pay to Total Health Brookvale Pty Ltd 32A Orchard Road Brookvale NSW 2100 Australia the sum of $ 1,980.00 on or before 7 May 2015. Catchwords: Refund of monies; Money Back Guarantee Legislation Cited: Consumer Claims Act 1998: sections 3, 3A, 8 and 13; Part 5, Schedule 4, Civil and Administrative Act 2013. Category: Principal judgment Parties: Total Health Brookvale Pty Ltd (applicant) Smart Australia Developments Pty Ltd trading as APPS Together (respondent) Representation: Applicant: Wendy Windsham Respondent: Rich Lawson – by telephone attendance File Number(s): GEN 15/11133 Publication restriction: Nil

REASONS FOR DECISION

Application 1. The applicant seeks an order for a refund of certain monies paid to the respondent and relies upon a "money back guarantee" in the terms of the agreement to support the claim 2. The respondent submits that the applicant is not entitled to the refund. More specifically, the respondent submits that it is entitled to rely upon a term of the agreement to avoid the claim.

Jurisdiction 1. On the establishment date, 1 January 2014, the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 amended certain statutes which previously conferred jurisdiction on now "abolished" Tribunals. NCAT has jurisdiction to hear and determine relevant matters in place of the "abolished" Tribunals. 2. From 1 January 2014, the Residential Tenancies Act was amended. The definition of "Tribunal" was changed in that Act from the CTTT to NCAT - see cl 4.34 item (2) in Schedule 4 to the Civil and Administrative Legislation (Repeal and Amendment) Act. 3. As a result of the amendments, from 1 January 2014, I am satisfied that NCAT has jurisdiction to hear the application made pursuant to the provisions of the Consumer Claims Act 1998