Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chamma v DJC Furniture & Bedding Pty Ltd [2017] NSWCATAP 169 Hearing dates: 18 April 2017 and 30 June 2017 Date of orders: 10 August 2017 Decision date: 10 August 2017 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member J McAteer, Senior Member Decision: (1) Time in which to lodge the appeal is extended to 23 December 2016. (2) Application for leave to appeal refused. (3) Appeal dismissed. Catchwords: APPEAL: Consumer claim – Purchase of bedroom suite – Whether goods not of acceptable quality – Whether false and misleading representations – Whether error of law – Whether leave to appeal should be granted Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Fair Trading Act 1987 (NSW) Australian Consumer Law (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: Houda and Mohamad Chamma (Appellants) DJC Furniture & Bedding Pty Ltd (Respondent) Representation: M Chamma (Applicants) K Ruhs (Respondent) File Number(s): AP 16/55728 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 24 November 2016 Before: B Shipp, Senior Member File Number(s): GEN 16/38757 REASONS FOR DECISION 1. Houda and Mohamad Chamma appeal against the decision in the Consumer and Commercial Division to dismiss their application for refund of the purchase price of a bedroom suite, $3,300.00, purchased from DJC Furniture & Bedding Pty Ltd (DJC) on 6 June 2016. 2. Mr and Mrs Chamma lodged their application with the Tribunal on 26 August 2016, claiming that the bedroom suite was defective, in particular the bedhead was damaged, and that they had been informed that the suite was solid wood, and handmade, when it was not. 3. The application was heard on 24 November 2016, and dismissed, the Tribunal not being satisfied at the civil standard of proof that the grounds required to make the orders sought had been established. The Notice of the decision stated that "Oral reasons were given to the parties at the hearing". 4. Mr and Mrs Chamma lodged their internal appeal on 23 December 2016. Directions were made on 7 February 2017 that the appellants lodge with the Tribunal and the respondent by 7 March 2017 all the evidence provided to the Tribunal below, written submissions in support of the appeal, and the sound recording of the hearing "if oral reasons were given and/or what happened at the hearing is being relied upon". The respondent was to provide its documents by 4 April 2017; and the appellants to reply by 11 April 2017. 5. The hearing was listed for 18 April 2017. On that occasion Mr Chamma appeared for the appellants, and Mr Ruhs, manager of DJC, appeared by telephone for DJC. 6. Mr and Mrs Chamma had not provided a copy of the sound recording as directed. Neither party had applied pursuant to s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) for written reasons. Mr Chamma explained that he had requested a copy of the recording at the Liverpool registry of the Tribunal about a week after the directions hearing, and had been informed that it would take 4 to 6 weeks. That was longer than the date by which he had to provide his documents. He misunderstood that he had to have the sound recording. 7. The Appeal Panel was of the view that in the absence of written reasons, or the sound recording, it would not be possible properly to consider and determine the appeal. The Appeal Panel adjourned the hearing, with directions that Mr and Mrs Chamma were to apply by 19 April 2017 for a copy of the sound recording, and provide that to DJC and the Tribunal. The Tribunal received a copy of the sound recording on 22 June 2017. 8. The hearing of the appeal proceeded on 30 June 2017. Mr Chamma appeared on behalf of himself and his wife. Mr Ruhs appeared on behalf of DJC by telephone. Notice of Appeal 1. In their Notice of Appeal Mr and Mrs Chamma seek an order that the supplier refund the purchase price ($3,300.00) and take the suite back, and pay their costs of $110.05 for copies of the appeal, $101.00 for the fee to appeal, and $25.90 for copies to the Tribunal. 2. The grounds of appeal state: 1. the store had promised to fix the furniture, but didn't; 2. after the supplier received a letter from Fair Trading they offered $600.00; 3. the supplier had come twice to repair the product but the replacement was faulty; 4. they discovered the furniture was not timber as they had been told when they purchased it; 5. there was no instruction on installation or maintenance of the product; and 6. the supplier made many promises which were not met. 1. Mr and Mrs Chamma also seek leave to appeal, stating the decision was not fair and equitable because the supplier would not have offered a refund of $600.00 or to replace the damaged bedhead if he were not at fault; and that the decision was against the weight of evidence because their file contained several statements and photographs whereas the other party's file had one statement only. 2. Mr and Mrs Chamma seek an extension of time to lodge the appeal, stating that they were instructed that the time was 28 days which was not correct, they were asked to make several copies of the file, and it was around Christmas time. Reply to Appeal 1. In the Reply to Appeal DJC supports the Member's decision, and states: 1. the Member took into account the documents filed in the proceedings; 2. Mr and Mrs Chamma were not happy with the product, however the complaint is not about the quality of the bed but that they no longer want that type of bed; 3. the offer to settle for $600.00 was made purely on a commercial basis; 4. the supplier did repair the product; 5. there was no representation made to Mr and Mrs Chamma at the time of purchase, Mr and Mrs Chamma came with a catalogue and proceeded to purchase without asking about materials; and 6. there may have been no instructions on how to assemble the bed, however the supplier installed the bed. 1. DJC opposed the extension of time to lodge the appeal. Extension of time 1. The Notice of Appeal was received by the Tribunal on 23 December 2016, two days after the 28 days specified in rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, and leave is required under s 41 of the NCAT Act to extend the time. 2. The applicable principles are those stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. In considering whether to extend the time, the Appeal Panel is required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent (to the appeal). 1. Mr Chamma stated that he had been misguided by the Registry advice that it was 28 days, and he thought that meant working days. Mr Ruhs submitted that he has been disadvantaged by the whole process. 2. The length of the delay is short, and we accept that Mr Chamma may have misunderstood the calculation of the applicable time period. DJC has not pointed to any specific prejudice caused by the late lodgement. The case which the appellants sought to argue was not entirely without merit, and having regard to all the relevant factors, we grant leave to extend the time to lodge the appeal to 23 December 2017. The decision under appeal 1. We have listened to the sound recording. The hearing commenced with the Member identifying the issues to be determined. Mr Chamma confirmed that the purchase price of $3,300.00 was for the whole bedroom suite including the bed and a dressing table. He had an initial problem with the dressing table however that had been fixed and the only remaining problem was the bedhead. Mr Chamma confirmed that he was seeking a full refund and return of the bedroom suite. The Member outlined the requirements of the Australian Consumer Law (ACL), that the purchaser receive an item of acceptable quality, and the options for repair, replacement or refund. The Member offered the parties the opportunity to conciliate to reach a negotiated settlement. The Member confirmed the documentary evidence. The Member took sworn oral evidence from Mr Chamma, including evidence about his dealings with DJC, and his evidence as to the damage to the bedhead, by reference to the photographs provided. Mr Ruhs, and a representative of the supplier of the furniture, gave sworn oral evidence. There was discussion as to whether the bedhead covering visible in the photographs was part of the bedhead or a protective cover intended to protect the furniture during transit. In relation to the alleged representations about the construction of the furniture, Mr Chamma referred to the written statements he had provided. Mr Ruhs stated that he was not present on the day. There was no statement from Faye, the salesperson who was present. The Member explained the requirement that he be satisfied that Mr and Mrs Chamma were led to make the purchase because of the representations, and that he would have to consider that if the furniture was returned it would not be as new. 2. At the conclusion of the hearing, the Member adjourned, indicating he would need about 45 minutes. On return to the hearing room the Member provided ex tempore reasons. The Member stated that: 1. the application related to the purchase of a bedroom suite on 6 June 2016, that the Australian Consumer Law (NSW) (the ACL) and the Fair Trading Act 1987 applied, and the Tribunal had jurisdiction; 2. the applicants alleged that the furniture, especially the bedhead, was not of acceptable quality in accordance with s 54 of the ACL, and secondly, that the supplier had made representations that the furniture was solid wood and pure timber, which was not the case; and 3. the supplier had an obligation to supply goods of acceptable quality and not to make false or misleading representations; 1. The Member then considered the allegation that the furniture was not of acceptable quality, noting that: 1. the applicants relied on photographs which they said showed damage to the surface; 2. it was not clear whether the photographs showed damage to the item itself or to a cover; 3. there had been no independent inspection by someone with expertise or experience in the industry; and 4. the onus was on the applicants to establish that the item was not of acceptable quality, by reference to the matters specified in s 54, for example, the nature of the goods and their price. 1. The Member concluded that he could not be satisfied that the furniture was not of acceptable quality, namely that the photographs showed damage to the item itself rather than the protective cover. Having made that finding, the issue of the quality of replacement items did not arise, even if done as a matter of goodwill by the supplier. 2. The Member then considered the allegation that the supplier had made false or misleading representations, noting that: 1. the applicants had to show that the representations led them to make the purchase and that as a result they suffered loss; 2. the applicants' evidence was that there was a discussion with the sales representative and statements were made about the furniture; and 3. there was no evidence provided by the supplier in response to the applicants' evidence as to the statements made. 1. The Member found that he was satisfied that the representations that the items were solid wood were made, on the basis that there was consistent evidence to that effect from Mr and Mrs Chamma and a friend and no evidence provided in response. 2. The Member then considered whether the applicants had relied on those representations to enter into the purchase. He was not satisfied that the representations were of such significance that the applicants would not otherwise have purchased the bedroom suite. They had found it on an internet site and went to DJC keen to purchase it, and the evidence did not establish that the representations were a deciding factor in the purchase. Even if it was a deciding factor, he had to consider what was the loss, and there was no evidence as to the difference in value between what was described and what they received. The Member concluded his reasons, dismissing the claim. The Appeal 1. Mr and Mrs Chamma provided a copy of the documents they had provided at first instance. The documents include a statement by each of them and by a friend who had accompanied them to DJC; a statement as to the composition of the furniture; invoices; and several photographs. 2. In oral submissions Mr Chamma stated that the Member relied on the written statements, and only he had given evidence. The hearing time was too short. Mr Chamma could not, however, identify anything he would have said had it been longer. There was not enough supporting evidence for the Member's decision, as he had provided statements from himself and others, and photographs showing damage. The Member did not take into account the two attempts to repair the bedhead. Mr Chamma stated that if he buys something and it is faulty he is entitled to return it; he asked for repair and when that was not done he sought a refund. The Member did not take into account that part of his statement where he says the supplier attempted to repair the furniture. 3. Mr Ruhs submitted that the Member had taken into account all the statements, he looked at the photographs, and he read the statements. The decision was fair. He has done everything he can to assist Mr and Mrs Chamma. Availability of appeal 1. This is an internal appeal pursuant to s 80 of the NCAT Act. The appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarised at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). As explained in Collins v Urban at [84], ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. Consideration 1. Mr and Mrs Chamma have not identified an error of law in their grounds of appeal. Subject to the issue as to fairness to the respondent, where the Appeal Panel determines that an error of law is raised in the material before it, even if not identified by an unrepresented appellant in the Notice of Appeal, it ought to deal with that identified error on the appeal: Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [12]. 2. Having considered the submissions, and after listening to the sound recording of the hearing and the ex tempore reasons, we are not satisfied that there was an error of law either in the Member's conduct of the hearing, or in his reasoning and determination. The Member correctly identified the applicable legal principles, and there is no error shown in his application of those principles to the facts as found. While Mr Chamma submitted that the hearing was too short, he was unable to specify anything further he might have said had it been longer. He submitted that the Member should have heard oral evidence from his witnesses, however the Member's reasons confirm that he accepted the evidence in their written statements in reaching his findings, which were in favour of the applicants, that representations as to the composition of the furniture were made. 3. Mr and Mrs Chamma's complaint in essence is that the Member did not accept that their evidence as to the defects in or damage to the furniture established that the goods were not of acceptable quality. The onus was on the applicants to establish, on the balance of probabilities, that the furniture was not of acceptable quality. The Member considered all the evidence provided by the applicants, and was not persuaded by it. Having regard to the evidence put to the Member, and the discussion of it at the hearing, we are satisfied that that finding was open to him. It cannot be said that the evidence "in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach": Collins v Urban at [77]. 4. In considering the claim that DJC had made false and misleading representations as to the composition of the furniture, the Member found in favour of the applicants that the representations were made. The written statements provided by Mr and Mrs Chamma were consistent in stating that they had gone to DJC having found the "Mona Lisa" bedroom suite on the internet and with photographs of it, and that as the suite was not on display they looked at it in the catalogue. The Member found, based on that evidence, that Mr and Mrs Chamma had found the suite on the internet and were keen to purchase it, and that the representations, while made, were not the deciding factor in their decision to purchase. The finding of the Member that he was not satisfied that the applicants had established reliance on the representations in deciding to purchase the furniture was open to him. Again, it cannot be said that the totality of the evidence pointed the other way. 5. The final element in the Member's reasoning was that even if the representations were a deciding factor in the purchase, Mr and Mrs Chamma had not established what their loss was. That was not addressed in terms in the appeal. Mr and Mrs Chamma did not provide evidence on that issue either in the documents they provided or in the oral evidence and submissions made at the hearing. There is no basis on which to disturb that aspect of the Member's reasoning. 6. Mr and Mrs Chamma have not established that there was a failure in the way the matter was conducted or decided which deprived them of a chance that was fairly open of achieving a better outcome than occurred, such that there may have been a substantial miscarriage of justice under cl 12(1) of Sch 4 to the NCAT Act. That conclusion means that it is not necessary to consider whether, in the exercise of discretion, leave to appeal should be granted. Conclusion 1. There being no error of law, and no basis on which leave to appeal should be granted, the orders of the Appeal Panel are: 1. Time in which to lodge the appeal is extended to 23 December 2016. 2. Application for leave to appeal refused. 3. Appeal dismissed. ********** 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. 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