Chen v Homeland Furniture Canterbury Pty Ltd [2015] NSWCATCD 102

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Homeland Furniture Canterbury Pty Ltd [2015] NSWCATCD 102 Hearing dates: 3 August 2015 Decision date: 26 August 2015 Jurisdiction: Consumer and Commercial Division Before: G J Sarginson, General Member Decision: 1. The application is dismissed. Catchwords: Misleading or deceptive conduct Acceptable quality Sale by sample or demonstration model Mitigation of loss Legislation Cited: Consumer Claims Act 1998 ss 3, 3A, 7 Fair Trading Act 1987 s 28 Australian Consumer Law 2010 ss 18, 54, 57, 259, 260, 261, 262 Cases Cited: Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1 Miller & Associates Insurance Broking v BMW Australia Finance (2010) 241 CLR 357 Clark v Macourt (2013) 304 ALR 220 Chand v Commonwealth Bank of Australia [2015] NSWCA 181 Category: Principal judgment Parties: Ping Chen (applicant) Homeland Furniture Canterbury Pty Ltd (respondent) Representation: Applicant: In person Respondent: Mr Zhou, Manager File Number(s): GEN 15/31076 Publication restriction: Unrestricted

REASONS FOR DECISION 1. The matter was listed for hearing at the Tribunal in Liverpool on 3 August 2015. The applicant appeared with a Mandarin interpreter, and gave sworn evidence. The applicant's husband also appeared at the Tribunal and gave sworn evidence. Mr Zhu, manager of the respondent, appeared and gave sworn evidence. 2. The application was filed with the Tribunal on 23 April 2015. The matter was listed before the Tribunal on 5 June 2015 when it was set down for hearing, and orders made that each party file and serve documentary evidence. Each party had filed and served documentary evidence in accordance with the directions of the Tribunal, and such documents were admitted into evidence. 3. The dispute involves a leather lounge suite (comprising of a 3 seater lounge and 2 chairs) that the applicant purchased from the respondent on 2 April 2015 for $2,130.00. The applicant seeks an order for return of the goods and a full refund, on the basis that the goods were advertised by the respondent as "100% genuine leather" when the goods were not "100% genuine leather". 4. There are a number of facts that are not in dispute. There is no dispute that the applicant attended the respondent's store and inspected a display model of the lounge suite; that there was a discussion between the applicant and a salesperson; that the lounge suite the applicant inspected was a "Risque" model lounge suite; and that there was a sign on the display lounge suite stating that it was "100% genuine leather". Further, there is no dispute that the applicant paid the respondent $2,130.00 (the agreed price of the lounge suite, inclusive of delivery cost) on 2 April 2015, and that the respondent arranged for the delivery of a "Risque" model lounge suite (in the same colour as the model inspected at the respondent's store) to the applicant's residence.