Chambers v Get Qualified Australia Pty Ltd [2016] NSWCATCD 52

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chambers v Get Qualified Australia Pty Ltd [2016] NSWCATCD 52 Hearing dates: 18 April Decision date: 21 June 2016 Jurisdiction: Consumer and Commercial Division Before: L Wilson, Senior Member Decision: 1. Respondent to pay applicant $1,837.50 Catchwords: Contract for supply of services – Discretionary refund – No discretionary policy – Cancelled contract within 24 hours – Unfair contract Legislation Cited: Fair Trading Act 1987 Australian Consumer Law Category: Principal judgment Parties: Gavin Chambers (applicant) Get Qualified Australia Pty Ltd (respondent) Representation: Applicant: in person Respondent: Alexandra Sella, head of training and assessment File Number(s): GEN 16/03342 Publication restriction: Nil

REASONS FOR DECISION 1. The applicant is a self employed carpenter who in November 2015 was gathering information to apply for his Victorian builder's licence. As part of these inquires the applicant looked at the respondent's website, and considered enrolling in one of their courses to improve his licence application. 2. On 16 November 2015 he made an email inquiry with the respondent. The next day a sales representative from the respondent called the applicant and convinced him to enrol in one of their courses. The applicant gave evidence that he felt pressured during this phone call and was in a "very confused state of mind". The sales representative offered the applicant a discount if he paid the entire course cost, which he did. It was $2,450. In fact he only had to pay 25% of the total course cost to enrol, but because of the pressure from the sales representative and the offer of a discount if he prepaid, he paid for the course in full. The course was the certificate 3 in carpentry. 3. The next day, being 18 November 2015, the Victorian Building Authority called the applicant and explained that he did not need the certificate 3 in carpentry. The applicant immediately called the sales representative back to cancel his enrolment. He could not reach her on the number she had given him. 4. He left messages and sent multiple emails to cancel his enrolment in the course he did not need to complete for his builder's licence. Correspondence between the applicant and persons representing the respondent carried on for over a month, with no refund being offered to the applicant, only options to transfer the enrolment to another or to take up a different course. 5. The respondent has a discretionary refund policy which is not really a policy at all. Its terms cannot be found on its website nor in its ebook. The respondent explained that it means that if a student requests a refund within 7 days of enrolling, "a decision will be made under GQA's Discretionary Guidelines within a 4 week period. If the Refund request proceedings, there will be a 25% administration fee applicable to the total cost plus any transaction processing fee": page 1 of the applicant's evidence. 6. As stated, there is no such "GQA's Discretionary Guidelines". The respondent explained during the hearing it is simply a matter for the respondent to decide if it will refund the student or not. The respondent accepted that the applicant only had to pay 25% to enrol and if he had, this is the total he would have lost when he cancelled his enrolment in the course. 7. The applicant attempted to cancel his enrolment less than 24 hours after enrolling. He followed the requests of the respondent when he finally contacted the respondent e.g. to fill out the grievance form as directed. However the respondent declined to refund him 75% of the $2,450 he paid only 24 hours before cancelling. There is no discretionary policy that the respondent can point to, to explain why the applicant's request was rejected. The only basis for rejecting the request is that the applicant changed his mind and they do not refund for this reason. 8. The respondent provided, along with other evidence, its payment and refund policy which includes a heading on page 4 of 5, "Eligibility for a refund". Under this heading it is stated "fees will only be refunded by GQA where a participant/ applicant: pays duplicate fees for one service, makes an overpayment…" Under the heading "Discretionary refunds" on the same page it states "GQA may, at its discretion, refund a fee for reasons other than those described above. GQA will advise the participant/ applicant to apply for a refund should this occur". Under this heading it explains GQA will not refund fees merely because the applicant changes his mind. 9. In the notes from the respondent's system it can be seen the sales representative who took the applicant's full payment on 16 November 2015, made the note that "he said yesterday that he didn't need it for his licence and would only make his application stronger". This was entered on 19 November 2015.