Arebelle Pty Ltd t/as Cavallo Kitchens and Appliances v Nelson

Background

1. In 2015 Ms Nelson decided to renovate her kitchen. As she saw it was to be her "dream", "forever" kitchen. She spent considerable time researching design options and kept an exercise book for the purpose of recording design specifications, supported by detailed notes and drawings.
2. In March 2015, Ms Nelson entered into a contract for the supply of a kitchen with Good Guys Kitchens.
3. The following day, Ms Nelson met with Arebelle's General Manager, Andrew Dowling, and was persuaded to invite Arebelle to provide a quotation for the kitchen so that she could compare it with the quotation provided by Good Guys Kitchens.
4. On 13 March 2015, Ms Nelson met with David Jackson at her home. Mr Jackson is an independent contractor engaged by Arebelle to design, measure and provide quotations for domestic kitchens. According to Ms Nelson, during that meeting Mr Jackson reviewed the plan submitted by Good Guys Kitchens and stated that it would not meet her design specifications. He stated that for the price quoted by Good Guys, he would design a kitchen that would better meet her needs and would be of superior quality.
5. According to Ms Nelson, at the meeting with Mr Jackson she outlined her requirements for the kitchen, which included that: 1. there be no gap between the upper cabinets and the ceiling 2. the upper cabinets be positioned at a height she could reach comfortably (Ms Nelson is of short stature) 3. the kitchen include a vertical cabinet to accommodate brooms, mops and an ironing board and, in addition an open cabinet in easy reach large enough to accommodate her existing convection microwave oven.
6. In the course of the meeting Mr Jackson measured the kitchen and made sketches of the proposed design. Ms Nelson was not provided with a copy of those sketches. At first instance Mr Dowling explained that it was not Arebelle's practice to give customers copies of plans of the type made by Mr Jackson, because of the risk that they might use the plans to obtain an alternative quotation.
7. Following the meeting with Mr Jackson, Ms Nelson decided to cancel her contract with Good Guys Kitchens, which at the time was subject to a 10-day cooling off period. On 14 March 2015, Ms Nelson attended Arebelle's show room, signed a written contract and selected a cook-top, sink and range-hood for the kitchen. She neither selected nor expressed an intention to purchase a new microwave oven.
8. In a letter dated 17 March 2015, Arebelle wrote to Ms Nelson and provided a timetable for the installation of the kitchen: Congratulations on your dream Cavallo kitchen. … We will contact you and a Site Check will be arranged within 5-7 working days where the design and measurements will be checked and if any changes are to be made. At this stage a further 50% progress payment is to be paid. Any variations to the original design will be added/deducted from the final payment. Final plans after site check will be emailed for your approval and authorisation before progressing to production. (emphasis as in the original)
9. The Site Check took place on 17 April 2015 and was attended by Ms Nelson, Mr Dowling and Jeffery Chen, the principal of Build All You Want, and Arebelle's recommended site checker, kitchen installer and project manager. Ms Nelson claims, and Mr Dowling denies, that at the Site Check she again stated that she intended to use her existing microwave oven. At the Site Check, Mr Dowling gave Ms Nelson a copy of the plans for the kitchen and asked her to sign the first page, which she did. She claims that she was not given the opportunity to review the plans before signing them. This was the first occasion Arebelle gave Ms Nelson a copy of the plans for the kitchen.
10. A few days later, Ms Nelson telephoned Mr Dowling and said the plans "did not look right" and asked for more time to consider them. On her account she told Mr Dowling that she was concerned about the height of the microwave cabinet and the bank of cabinets above the cooktop. She claims Mr Dowling assured her that the plans corresponded with her requirements and that her concerns were misplaced. Mr Dowling agreed that the conversation took place but testified that by that time the kitchen had been in production for six weeks and that it was too late to make changes.
11. Installation of the kitchen commenced on 1 June 2015. In the course of that day Ms Nelson became alarmed about some of the features of the kitchen, which she believed did not conform with the design specifications she had given to Arebelle. She unsuccessfully attempted to raise these concerns with the installers whom she said did not speak English.
12. Ms Nelson claims that on 2 June 2015, Messrs Chen and Dowling urged her to allow the installation work to proceed and was given an undertaking that any necessary rectification work would be carried out following completion. Ms Nelson claimed Mr Chen stated that 90% of kitchens require some adjustment and rectification after installation. At the hearing before the Tribunal, Mr Dowling criticised Ms Nelson for not interrupting and delaying the trades work, in particular the tiling of the splashback behind the cook top, until her concerns about the height of the cabinets were addressed.
13. In an email sent to Arebelle on 23 June 2015, Ms Nelson listed three "major issues", which required rectification: 1. The height of the cabinets above the cook top, which she claimed she was unable to reach without a ladder. 2. The height of the range hood above the cook top. Ms Nelson asserted that the positioning of the range hood did not comply with the manufacturer's instructions and as a result the extractor fan did not work effectively. 3. The size and positioning of the microwave cabinet. She claimed that the cabinet was too shallow to fit her existing microwave oven and was positioned at a height beyond her reach.
14. At the hearing, Mr Dowling conceded that the positioning of the range hood did not comply with the manufacturer's specifications but asserted that the extractor fan was nonetheless effective. He denied being informed by Ms Nelson that she required a bulkhead to be installed above the upper cabinets. In addition, he claimed that Ms Nelson told him that she intended to replace her existing microwave with a standard size microwave.

The decision under appeal

1. In its Reasons for Decision of 27 March 2017 (Reasons), the Tribunal accepted Ms Nelson's account of the instructions given to Arebelle about the design specifications of the kitchen.
2. The Tribunal wrote (at [49]): [A] reasonable consumer, fully acquainted with this state and condition of the kitchen, would not consider it to be of acceptable quality. In this respect, it was not fit for the purpose for which it was supplied, it was not acceptable in appearance and finish, and with respect to the microwave cabinet, it was not safe (the cabinet was too high for safe use, and the Applicant's microwave topples out of it because it is too shallow).
3. The Tribunal concluded: "[T]here can be no question that these defects are design and manufacturing defects that can only be attributable to [Arebelle's] acts and omissions": at [50]. The Tribunal found that Arebelle had failed to comply with the guarantee to supply goods of acceptable quality: s 54 of the ACL NSW.
4. In addition, the Tribunal concluded (at [80]) that Arebelle failed to comply with the guarantee that the supplied design services would be rendered with due care and skill: s 60 of the ACL NSW. Having made those findings, it awarded Ms Nelson the sum of $6622.00 in compensation in respect of rectification of the defects it had found.

Statutory framework

1. Arebelle's rights of appeal are limited by s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) which provides: (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. 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 we are satisfied Arebelle may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. Of the four grounds of appeal which we have identified at [5] above, Grounds 1, 2 and 3 arguably raise a question of law. Ms Nelson requires the leave of the Appeal Panel to maintain Ground 4.

Ground 1: the contract construction issue

1. Arebelle submits that the Tribunal misconstrued the terms of the Contract by finding it was liable for matters that were the responsibility of the installer in circumstances where the cabinetry supplied corresponded with plans submitted to, and authorised in writing by Ms Nelson.
2. Arebelle submits that with the exception of the finish on one panel, the cabinetry supplied to Ms Nelson was manufactured in accordance with plans that she had signed. Arebelle submits that, as required by the terms of the Contract, it supplied cabinetry that corresponded with those plans. Arebelle asserts that, as a consequence, it is not open to Ms Nelson to now complain that the cabinetry supplied did not meet her specifications.
3. Under the heading "Acceptance", the Contract executed by Ms Nelson on 14 March 2015 states: The Customer agrees and acknowledges that all the terms and conditions of the contract between the Customer and Arebelle Pty Ltd … are as specified in this contract together with the attached terms and conditions, plans and specifications. The Customer further acknowledges that he/she has read and understands the terms and conditions, plans and specifications attached to this quotation." (emphasis added)
4. "Quotation" is defined by the Contract to mean: The specifications, plans, designs, prices, Products and any other items or things included in the document marked quotation addressed to you and attached to this Agreement and any variation in accordance with the terms and conditions of this Agreement to such document.
5. The Contract further provides: Products 4.3 We are not responsible or liable for any defects, shortages in quantity, errors, or omissions in the Products if the Products are supplied to you in accordance with our quotation or revised quotation. 4.4 The Products shall be deemed of merchantable quality if they are made in accordance with our quotation or revised quotation.
6. "Product" is defined to be "all goods and/or services supplied by us to you".
7. On the front page of the Contract, in a box under the heading "Job Specification", was written "As per plans" together with a brief description of the materials to be used in the doors, benchtops and kickboards. The Contract provided no further specifications or details about the cabinetry to be supplied by Arebelle. Nor were any plans attached to or described in the Contract. If there were plans in existence at the date Ms Nelson signed the Contract, Arebelle did not provide a copy to Ms Nelson.
8. The Tribunal found that Arebelle failed to design and manufacture a kitchen that accorded with the instructions Ms Nelson gave to Mr Jackson on the day before the Contract was executed: [17.4]-[17.8], [80]. The Tribunal found that the cabinets as manufactured (and, logically, as designed) did not reflect the instructions given by Ms Nelson in three material respects: 1. The size of the microwave cabinet: [46] and [55]-[56] of the Reasons. 2. The broom cabinet: [46] and [57]-[59] of the Reasons. 3. The absence of a bulkhead above the cabinets (or wall to ceiling cabinetry) and the height at which the cupboards above the cooktop and range hood had been constructed: [46], [48] and [60]-[68] of the Reasons.
9. The Tribunal described Ms Nelson's account of her meeting with Mr Jackson as "quite compelling" and observed that "there is no direct or objective evidence that contradicts [her] account": at [45]. The Tribunal noted that Arebelle did not produce any notes or drawings made by Mr Jackson at his meeting with Ms Nelson on 13 March 2015, nor was Mr Jackson called to give evidence: at [45]. The Tribunal inferred that had Mr Jackson given evidence, it would not have assisted Arebelle: [45].
10. With respect to the version of the plans signed by Ms Nelson at the Site Check, the Tribunal accepted, as pointed out by Mr Dowling, that the plans did not depict a bulkhead and that the overhead cabinets were positioned in "an apparently higher than usual position on the wall": at [61]. The Tribunal concluded that Ms Nelson was presented with those plans "as a fait accompli" despite this being the first occasion she had sighted a copy of the plans: at [63].
11. The Tribunal accepted Ms Nelson's claim that at the Site Check she repeated that she intended to use her existing microwave oven. In making that finding, the Tribunal noted that Arebelle's evidence about what was discussed at that meeting was internally inconsistent, specifically that in an email sent to Mr Dowling in November 2016, Mr Chen contradicted Mr Dowling's claim that Ms Nelson did not raise the issue of the size and positioning of the microwave cabinet at the Site Check: at [55].
12. In the appeal Mr Dowling argued that the Tribunal erred by accepting Ms Nelson's account of her meeting with Mr Jackson and of the discussions that took place at the Site Check. However Mr Dowling was unable to point to evidence which contradicted the findings reached by the Tribunal.

Consideration

1. Central to this ground of appeal is the challenge to the findings of fact made by the Tribunal about the design specifications, which Ms Nelson communicated, to Arebelle.
2. With respect to the finding that the cabinets as manufactured and supplied by Arebelle did not reflect the specifications communicated by Ms Nelson, the Reasons disclose that the Tribunal gave careful consideration to the available evidence. The Tribunal took into account Ms Nelson's uncontradicted account of the detailed specifications she communicated to Mr Jackson the day before the contact was signed and Mr Jackson's assurance that Arebelle would deliver a customised kitchen, which incorporated those features. The Tribunal examined the conflicting evidence about the discussion between Ms Nelson and Messrs Dowling and Chen at the Site Check and preferred the evidence given by Ms Nelson. There was ample material before the Tribunal to support the finding that the cabinets as manufactured and supplied did not reflect the specifications communicated by Ms Nelson to Arebelle and which she was assured would be incorporated in the cabinetry provided.
3. The legal issue raised by Arebelle, in essence, is whether by signing the plans Ms Nelson was bound by them as part of the contract.
4. Having considered the undisputed history which revealed that Arebelle failed to supply Ms Nelson with any plans for the kitchen until 34 days after the Contract was executed and the circumstances in which Ms Nelson was presented with plans at the Site Check, the Tribunal rejected Arebelle's contention that by signing those plans she authorised the design on which the manufacture of the cabinetry was based: [65]. The Tribunal concluded that by signing the plans, Ms Nelson had not waived her right to expect the final product would reflect her instructions: [61]. The Tribunal found that Ms Nelson was provided with the plans only at the time of the Site Check and she had had no time to consider them then. It accepted her evidence that, because of what was going on at the time of the Site Check, "she found it difficult to take everything in and deal with it while the Site Check was taking place": [62].
5. Ordinarily, parties are bound by written contracts that they sign. In L'Estrange v Graucob [1934] 2 KB 394 at 403, Scrutton LJ stated the well-known principle that "[w]hen a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not".
6. In Toll (FGCT) Pty Limited v Alphapharm [2004] HCA 52; 219 CLR 165 the High Court explained (at [40]) that contracts are to be construed objectively: It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
7. Although it was not put in these terms, Arebelle's argument is that, regardless of what might previously have been discussed, by signing the plans during the Site Check Ms Nelson adopted them and was therefore contractually bound to accept the kitchen supplied in accordance with those plans.
8. In our view, this argument fails. This was a contract that was partly written and partly oral. Ms Nelson signed a contractual document on 14 March 2015 and paid her deposit of $1980. The document signed on that day stated that the customer agreed and acknowledged that "all the terms and conditions … are as specified in this contract together with the attached terms and conditions, plans and specifications". No plans or specifications were, in fact, attached. The only specifications agreed were those orally agreed in the conversation between Mr Dowling and Ms Nelson and both parties were bound by them. One of the oral terms was that Arebelle would prepare plans in accordance with the specifications given by Ms Nelson.
9. In the absence of any plans attached to (or even identifiable as having been in existence at the time of the execution of) the Contract it could not reasonably be maintained that, by signing the document, Ms Nelson agreed to purchase cabinetry in accordance with any particular specifications other than those she had communicated orally before signing the contract.
10. At the Site Check, Mr Dowling did not point out that the plans differed from the specifications required by Ms Nelson and agreed to by Arebelle. Arebelle had previously agreed to draw plans in accordance with her specifications. It failed to do so. By presenting plans to her in the circumstances of that Site Check it was effectively representing that the plans were as previously agreed. In fact they materially differed. Thus Arebelle had engaged in a misrepresentation by conduct.
11. It was due to this misrepresentation that Ms Nelson signed the plans. Even if only the principle in L'Estrange v Graucob is applied, and consideration of any other protections available under the Australian Consumer Law, such as the unconscionability provisions (ss 20-22A) and the provisions concerning false or misleading representations (ss 18, 29, 33) is left aside, Ms Nelson was entitled to relief. The Tribunal made no error in finding that Ms Nelson was not bound by the plans she signed but rather that Arebelle was bound by its contract to supply a kitchen in accordance with her specifications.

Ground 2: no evidence to support the finding that the cabinetry supplied was not of "acceptable quality"

1. Arebelle submits that the Tribunal erred in finding that the cabinets supplied were not of "acceptable quality" within the meaning of s 54 of the ACL NSW. Arebelle contends there was no reliable and objective evidence that the cabinetry supplied to Ms Nelson was not fit for the purpose for which goods of that kind are commonly supplied. It follows, argues Arebelle, that the finding that the goods supplied were not of acceptable quality was not open to the Tribunal. There is considerable overlap between this ground of appeal and Ground 1.
2. The Tribunal has jurisdiction to entertain claims brought in reliance on the ACL NSW: Lam v Steve Jarvin Motors [2016] NSWCATAP 186 at [16] - [45]. Part 3-2 of the ACL NSW confers on consumers acquiring goods or services various guarantees. Contained in Part 3-2, s 54 states: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
3. Under the heading, "Did the First Respondent fail to comply with the guarantee as to acceptable quality?" the Tribunal correctly summarised (at [41]) the test to be applied in determining whether goods supplied are of "acceptable quality". Namely, that goods will be of acceptable quality if they are as fit for all the purposes for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable as a reasonable consumer fully acquainted with the state and condition of the goods would regard as acceptable having regard to the factors listed in s 54(3).
4. The Tribunal concluded (at [49]) that "a reasonable consumer, fully acquainted with the state and condition of the kitchen, would not consider it to be of acceptable quality". Specifically, the Tribunal found (at [49]) that the kitchen:

• Was not fit for the purpose for which it was supplied
• Was not acceptable in appearance and finish, and
• In respect of the microwave cabinet, was not safe.

1. In reaching that conclusion the Tribunal took into account:

• The cost of the kitchen, $22,300 which the Tribunal described as "expensive": at [42].
• The "very assertive representations" made by Messrs Dowling and Jackson that Arebelle would deliver "a high quality kitchen customised to [Ms Nelson's] needs and preferences": at [42].
• The fact that the kitchen was supplied for ordinary domestic use by a person of relatively short stature. The Tribunal noted that during the on-site meeting conducted on the day before Ms Nelson signed the Contract, Mr Jackson had the opportunity to observe Ms Nelson in "situ in the kitchen of her home". In addition, the Tribunal found that Ms Nelson discussed her height with Mr Jackson and asked him to design the kitchen with this in mind: at [43].

1. The Tribunal concluded that in "three primary respects" the cabinetry supplied by Arebelle was not of "acceptable quality": 46. [F]irst, it did not incorporate features specifically requested by the Applicant, being a customised microwave oven that was in easy reach and large enough to accommodate her existing Panasonic Convection Microwave oven, it did not incorporate a broom cabinet, and it did not provide 'floor to ceiling' cabinetry. 47. Second, the kitchen supplied had a number of non-matching and ill-fitting components. In this respect the trim of the microwave cabinet is a different colour to trim used elsewhere in the kitchen; the cabinet paint finishes are not even or uniform, including one cabinet that has an entirely different finish to the other cabinets; the doors of what was to be the broom cabinet are constructed from a different material to the rest of the kitchen and have a different finish; the shelf support holes in the kitchen's bottom corner cabinet have been drilled oversized for the shelf support clips supplied with the result that the clips are prone to fall out and the shelf they support to collapse; and no screw covers were supplied with the result that all screws remain visible. 48. Third, the bank of cabinets above the cook-top has been designed to be unusually short and shallow with the result that the range hood is situated at a height above the cook top that significantly exceeds the manufacturer's instructions and is recessed such that it is not directly above the cook top, negatively impacting on the effectiveness of the range hood extractor fans. The Applicant is also unable to reach this bank of cabinets without using a ladder.
2. With respect to the second of these features, the Tribunal had before it a series of photographs taken by Ms Nelson, said to illustrate the alleged non-matching and ill-fitting components of the cabinetry. In addition, Ms Nelson provided the Tribunal with reports prepared at her request by a cabinet-maker and a builder, each of whom had, prior to preparing their report, inspected the kitchen. The author of each report, among other things, listed and particularised faults relating to the finish and the construction of the cabinets. Each expressed the opinion that the material was of poor quality and much of it did not match.
3. Arebelle did not provide the Tribunal with any independent evidence to refute the observations made and opinions expressed by the authors of these reports. Nor in this appeal did Arebelle point to any evidence before the Tribunal which supported its assertion that the supplied cabinetry was of "high quality".
4. The contention that there was no reliable and objective evidence to support the finding that the cabinetry supplied was not of acceptable quality cannot be accepted. Nor could it be said that the finding was "against the weight of evidence" in that the evidence in its totality was so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable tribunal member could reach: cl 12(b) of Sch 4 to the NCAT Act, Collins v Urban [2014] NSWCATAP 17 (at [77]). There was ample evidence before the Tribunal to support the finding that the kitchen was not of acceptable quality.

Ground 3: Misapplication of s 267(2) of the ACL NSW

1. Arebelle contends that by ordering it to pay compensation in circumstances where Ms Nelson had not incurred costs to rectify the alleged defects, the Tribunal misapplied s 267(2) of the ACL NSW.
2. Section 267 of the ACL NSW states: 267 Action against suppliers of services (1) A consumer may take action under this section if: (a) a person (the supplier ) supplies, in trade or commerce, services to the consumer; and (b) a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and (c) unless the guarantee is the guarantee under section 60--the failure to comply with the guarantee did not occur only because of: (i) an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or (ii) a cause independent of human control that occurred after the services were supplied. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) terminate the contract for the supply of the services. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) terminate the contract for the supply of the services; or (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).
3. Arebelle submits that it was not open to the Tribunal to order it to pay compensation to Ms Nelson when she had not incurred any costs to remedy the failure to comply with the guarantee conferred by s 60 of the ACL NSW. It contends that by the operation of s 267(2), Ms Nelson can only recover the costs to remedy the failure after they had been incurred.
4. Section s 267(2) gives consumers a number of remedies where the failure to render services with due care and skill is not a "major failure" as defined by s 268. As a first step, the consumer may avail themselves of a "self-help" remedy and "require" the supplier to remedy the failure within a reasonable time: s 267(2)(a). If the supplier refuses or fails to remedy the failure, the consumer may elect to either terminate the contract, or have the failure remedied and recover from the supplier the reasonable costs of doing so: s 267(2)(b).
5. However, the submission made by Arebelle overlooks the fact that, regardless whether the specific remedy provided by s 267(2)(b)(i) is available where the consumer has not yet remedied the failure, s 267(4) provides that a consumer may recover damages "for any loss or damage suffered by the consumer because of the failure to comply with [a] guarantee" provided the loss was reasonably foreseeable.
6. The cost of rectifying defective work to bring it into compliance with the specifications laid down in the contract is clearly loss or damage suffered by a consumer because of a failure to comply with a guarantee and reasonably foreseeable as likely to arise from such a failure. The remedy available under s 267(4) is independent of, and in addition to s 267(2): s 267(5).
7. Section 267(4) does not require the consumer to establish that they required the supplier to remedy the failure, and that the supplier failed to do so. Nor does s 267(4) require the consumer to have incurred the costs of rectification before becoming entitled to recover such damages. Section 267(4) was explicitly referred to by the Tribunal in considering the appropriate remedy for Arebelle's breaches of consumer guarantees: Reasons at [94].
8. In its Reasons (at [83] - [90]), the Tribunal considered at some length the evidence about the steps taken by Ms Nelson to require Arebelle to comply with the guarantee conferred by s 60 and Arebelle's response. The Tribunal found that despite repeated requests made by Ms Nelson, Arebelle failed to remedy the failure within a reasonable period of time and an impasse had been reached: at [90]. It may be that it was not strictly necessary for the Tribunal to address these issues, however, that it did so did not affect the ultimate decision that Arebelle was liable for the cost of rectification.
9. The contention that it was not open to the Tribunal to award damages to Ms Nelson, in circumstances where she had not incurred the costs of remedying the failure to comply with the guarantees, must be rejected.

Ground 4: Finding that the cost of undertaking the proposed rectification work was $6,622, was against the weight of evidence.

1. Arebelle contends that the finding made by the Tribunal that the likely cost to remedy the failure to comply with the guarantees, conferred by ss 54 and 60, was $6,622, was against the weight of evidence. In the Appeal, Mr Dowling argued that this finding was "bordering on the insane".
2. In support of her claim for damages, Ms Nelson tendered two quotations provided by kitchen companies. The Tribunal noted (at [92]): [Arebelle] has not submitted any evidence of the estimated costs of rectifying the kitchen. Nor did Mr Dowling cavil with the Applicant's quotations for this work in his oral evidence.
3. On that basis, the Tribunal concluded that the lower of the two quotations relied upon by Ms Nelson represented "a reasonable measure of her loss": at [93].
4. In reaching that conclusion, the Tribunal addressed whether the scope of the proposed rectification work "extended beyond the rectification works required to remedy [Arebelle's] failure to comply with the guarantees": at [93]. The Tribunal found that the costs claimed by Ms Nelson arose "directly or consequentially upon [Arebelle's] failures to comply with the guarantees as to acceptable quality and due care and skill": at [94]. In reaching that conclusion, the Tribunal took into account the fact that the scope of proposed rectification work included the replacement of the tiles on the splash back, which apparently had been damaged by the tiler. The Tribunal acknowledged that Arebelle was not responsible for the damaged tiles but concluded nonetheless that there was "no unfairness" in requiring Arebelle to meet the cost of removing and replacing the tiles because "the scale of the rectification works required to lower the bank of kitchen cabinets above the cooktop and the range hood these tiles will require removal and replacement [of the splashback] in any event": at [94].
5. Section 264(4) required the Tribunal to assess the reasonably foreseeable loss or damage suffered by Ms Nelson because of Arebelle's failure to comply with the guarantees to render services with due care and skill and provide goods of acceptable quality. The Tribunal approached the task of assessing the damage suffered by Ms Nelson by asking what the cost would be to put Ms Nelson in the same position had Arebelle complied with the statutory guarantees. The approach taken by the Tribunal to the assessment of damages was unremarkable and consistent with the principles of common law relevant to the assessment of damages in contract or tort.
6. The only evidence before the Tribunal about the cost of remedying Arebelle's failure to comply with the guarantees was the unchallenged evidence tendered by Ms Nelson. In these circumstances, the contention that the finding that the cost of undertaking the proposed rectification work was $6,622 was against the weight of evidence, must be rejected.

Conclusion

1. None of the grounds of appeal are established. Leave to appeal is refused. The Appeal is dismissed.

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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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2017