Coates Hire Operations Pty Ltd v Faour [2019] NSWCATAP 159

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Coates Hire Operations Pty Ltd v Faour [2019] NSWCATAP 159 Hearing dates: 5 June 2019 Date of orders: 02 July 2019 Decision date: 02 July 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Bell SC, Senior Member Decision: (1) Appeal upheld;

(2) The orders made on 22 February 2019 in GEN 18/43088 are set aside; and

(3) Application GEN 18/43088 is dismissed Catchwords: Appeal - Question of Law Legislation Cited: Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Cases Cited: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Coates Hire Operations Pty Ltd (Appellant) Adib Hassan Faour (Respondent) Representation: Solicitors: V Tannous (Appellant) A Faour (Respondent self-represented) File Number(s): AP 19/14502 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 22 February 2019 Before: J Ringrose, General Member File Number(s): GEN 18/43088

REASONS FOR DECISION

Background 1. This is an appeal from orders made in the Consumer and Commercial Division of the Tribunal in proceedings GEN 18/43088 by which the appellant was ordered to pay the respondent $564.30 as a refund of monies which the Tribunal found to have been overpaid by the respondent to the appellant under a guarantee. The respondent guaranteed the obligations of a company that hired equipment from the appellant. Oral reasons were given at the hearing. 2. The decision under appeal (the Decision) arose out of an application filed by the respondent for an order that the respondent be paid $1,938.84. It appears from an attachment to the application that the respondent also sought an order for the removal of notification that the respondent had been in default of payment obligations to the appellant from the appellant's credit file. At the hearing, at first instance, the Member declined to consider making such an order upon the basis that there was no jurisdiction to do so. No appeal has been filed by the respondent in respect of that decision. 3. The basic background facts are not in dispute and they may be summarised as follows: 1. On 30 January 2017 a company trading as Orbit Construction agreed to hire certain equipment from the appellant and the respondent agreed to be the guarantor of the obligations entered into by Orbit. The respondent claimed that Orbit had hired a vibrator shaft which was delivered and returned the next day. However, the appellant charged Orbit for a second vibrator shaft. The appellant says two were ordered but the respondent says only one was ordered; 2. In respect of the second vibrator shaft, the respondent says that it was never delivered and there should be no charge for it. The appellant says it was delivered but not returned. Accordingly, the appellant says it was entitled to make a hire charge for a period and thereafter charge for the replacement cost of the missing vibrator shaft. The appellant relies upon the terms of the agreement entered into between it, Orbit and the respondent; and 3. The amount charged by the appellant was $1,938.44 which the respondent has paid. At first instance, the Tribunal held that the appellant overcharged Orbit and ordered the appellant to repay to the respondent $564.30. The appellant says there was no overcharge and seeks to have the order set aside.