Baas v JB Hi Fi Group Pty Ltd

Scope and nature of internal appeals

1. To succeed in an appeal, the appellant must demonstrate either an allegation of an error on a question of law, which may be argued as of right or that permission (that is, "leave") to appeal should be granted to bring the appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
2. The principles governing an application for leave to appeal under the NCAT Act are well-established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to the Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206, where the Court said at [28] (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
3. In an appeal from a decision made in the Consumer and Commercial Division, there is a further qualification to the possible grant of leave. We may only go on to consider a grant of leave if we are first satisfied that the elements of cl 12(1) of Sch 4 of the NCAT Act are made out, in that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
4. We agree with the Appeal Panel in Collins v Urban where it said, at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where: ... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
5. The appellant challenges the decision on the following grounds: Ground 1 1. That the Tribunal erred in determining that the rejection period in s 262(2) of the ACL had passed by the time the appellant sought to exercise a right of rejection under s 259(3) of the ACL; Ground 2 1. That the Tribunal failed to take into account evidence that the applicant had exercised his right to reject the goods soon after the major failure became apparent; Ground 3 1. The Member provided inadequate reasons; Ground 4
6. In later submissions, the appellant expanded those grounds to include an alleged denial of procedural fairness in the Tribunal: 1. failing to consider admitted evidence; 2. failing to provide the appellant with sufficient time in which to present his case at the hearing; or 3. failing to permit the appellant to cross-examine witnesses for the second respondent. Ground 5
7. The appellant also alleged that the Tribunal constructively failed to exercise its jurisdiction, in that it failed to consider all of his claims.

Relevant legislation and legal concepts

1. Schedule 2 to the Competition and Consumer Act 2010 (Cth) contains the Australian Consumer Law. It provides guarantees to consumers about goods acquired by them if certain conditions are met.
2. Section 28 of the Fair Trading Act 1987 (NSW) (FTA) incorporates those guarantees into the law of New South Wales as the Australian Consumer Law (NSW).
3. There is no contest that the relevant conditions for the application of the FTA, and thereby the ACL were met, in that the appellant was a consumer who acquired the laptop for less than the relevant prescribed monetary amount; JB was a supplier; Apple was a manufacturer; the claim was for the supply of goods in NSW and was brought within time.
4. In those circumstances, there is a guarantee that the goods supplied are of acceptable quality: ACL, s 54. Where that guarantee is not complied with, the consumer has the qualified right, under s 259 of the ACL, to reject the goods and demand a refund if that is done within the "rejection period" and the exceptions to the consumers' right to reject the goods do not apply: ACL, s 262. Where the consumer lawfully rejects the goods, s 263(4) of the ACL requires the supplier to either refund the purchase price and the value of any other consideration provided by the consumer or replace the rejected goods with goods of the same type and of similar value if such goods are reasonably available to the supplier.
5. Where goods are not of acceptable quality, the consumer may also seek damages from the manufacturer: ACL, ss 271-273.
6. Section 54 of the ACL provides, relevantly: 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: … (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. …
7. Section 259 of the ACL provides, relevantly: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: … (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (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) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging.
8. Section 260 of the ACL provides, relevantly: 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or …
9. Section 262 of the ACL provides, relevantly: 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or … (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
10. Section 263 of the ACL provides: 263 Consequences of rejecting goods (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
11. Not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure under s 260(a) of the ACL: Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80. The test is objective. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the fault(s). The test in s 260(a) of the ACL is whether a reasonable consumer with knowledge of the faults and what would be needed in terms of time, costs and degree of difficulty to fix them would have bought the goods or made a different decision.
12. Where there is a major failure, the consumer is required to reject them within the 'rejection period' in order to obtain a refund or replacement of the goods.
13. In Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465 at [39] (Nesbit), the New Zealand Court of Appeal held, in interpreting comparable legislation, that the rejection period is one that: ...suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually or preferably the supplier, for inspection. In this context, therefore, a defect is not 'apparent' until its cause has been identified and the buyer knows what has to be done to fix it, and what that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial.
14. As we set out above, the Tribunal was satisfied that the laptop was not of acceptable quality as it lacked durability, in a way which constituted a major failure. Those findings are unchallenged.

Consideration of the Grounds of Appeal

1. It is appropriate that we deal first with the appellant's allegation that he was denied procedural fairness: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577.

The first limb of Ground 4, that the Tribunal failed to consider admitted evidence

1. Properly construed, this allegation is not an issue of procedural fairness, but rather an element of Grounds 2, 3 or 5. We will deal with it in our consideration of those grounds as required.

The second limb of Ground 4, that the Tribunal failed to provide the appellant with sufficient time in which to present his case at the hearing

1. The reasons for the Decision reflect, at [9], that the appellant was allowed two hours to make submissions, in accordance with directions made prior to the hearing.
2. Two things may be observed about this. Firstly, the appellant has not appealed from the Tribunal's earlier decision to set a limit on the time available to him to present his case. Secondly, two hours was a reasonable, and perhaps generous, allowance in the context of this matter and the matters in issue for the appellant to present his case. Whilst the appellant makes a bare assertion that two hours "proved inadequate during the hearing," that assertion is not substantiated by the provision of the sound recording or transcript of the hearing. In any event, the appellant was on notice as to the time available to him and had been provided with and taken the opportunity to file his material to be relied upon prior to the hearing. To the extent that the appellant says that the allegedly inadequate time allocated to him caused the Tribunal to overlook aspects of his case, we will deal with that in our consideration of Grounds 2, 3 and 5 as required. For completeness, the appellant also alleged that the Tribunal should have adjourned the hearing to allow him more time to present his case. For the reasons set out above, we reject that submission. This limb of Ground 4 has no merit.

The third limb of Ground 4, that the Tribunal failed to permit the appellant to cross-examine witnesses for the second respondent.

1. At [8] of the reasons for the Decision, the Tribunal records that the only witness statement before the Tribunal was that of the appellant, who was not required for cross-examination, and that the hearing thereafter proceeded on the basis of the parties' submissions. On that basis, there were no witnesses for the first or second respondent.
2. A fair reading of the reasons as a whole, however, indicates that those who represented the respondents made comments which went beyond submissions and strayed into what might otherwise be considered to be evidence. For example, at [29] and [30] of the reasons the Tribunal records comments made by the representative of JB about previous offers which had been made to resolve the issue and go on to apparently accept those assertions as fact. Similarly, at [33], the Tribunal records comments from Apple's representative at the hearing about the time she would anticipate it would take to diagnose and repair the laptop.
3. In those circumstances, the appellant may reasonably have expected that those aspects of the factual assertions made on behalf of the respondents which he disputed should be open to testing, either by him or by the Tribunal: Gallo v Duflou [2014] NSWCATAP 115.
4. Failure to allow cross-examination or to otherwise test disputed evidence may, but will not always, constitute a denial of procedural fairness: Jannis v Ant-Hassa Pty Ltd [2020] NSWCATAP 99.
5. However, procedural fairness is concerned with avoiding practical injustice: Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.
6. Here, the appellant has not set out what aspects of the evidence accepted by the Tribunal are subject to challenge. Nor has he asserted that he indicated any challenge to the evidence during the proceedings below or asked for an opportunity to cross-examine the respondents' representatives on the assertions they made. No practical injustice to the appellant has been demonstrated, and we reject this ground limb of Ground 4.

Ground 1 - That the Tribunal erred in determining that the rejection period in s 262(2) of the ACL had passed by the time the appellant sought to exercise a right of rejection under s 259(3) of the ACL

1. The appellant asserts, in part, that the Tribunal erred in its application of the ACL as regards rejection of goods where there is a major failure where, at [88] and [89], it reasoned: 88. Where there is a finding that the rejection period has expired, subsection 259(2), which applies if the failure is not a major failure, only entitles the applicant to require the first respondent to remedy the failure within a reasonable time and, if the first respondent does not do so, recover all reasonable costs incurred in having the failure remedied. 89. For a major failure which occurs outside the rejection period, subsection 259(3) enables the applicant recover (sic) compensation for the reduction in the value of the goods…
2. Leaving aside the appellant's challenge to the basis upon which the Tribunal was satisfied that the rejection period had expired by the time he sought to reject the laptop, there is no error demonstrated by the reasoning exposed in these paragraphs. They represent an entirely orthodox approach to interpretation of the relevant sections.
3. The real issue from the appellant's perspective is, rather, the basis upon which the Tribunal determined that the rejection period had expired before he noted the problems with the laptop's trackpad and the related issues which led him to want to reject it.
4. The Tribunal determined that the rejection period, in the circumstances of this matter, was two years from the date of purchase, reasoning, at [63] to [66]: 63. In other words, the ACL does not set a fixed period of time for the rejection period but instead provides a definition and sets out the matters to be taken into consideration when determining what is the rejection period. Plainly, in view of the large number of sales, suppliers such as the first respondent and manufacturers, such as the second respondent, have to set a period which they consider reasonable but such a period does not bind this Tribunal which has to determine the rejection period by considering the evidence as reaching a conclusion having regard to the four factors set out in subsection 262(2) of the ACL. 64. For a personal laptop computer, being used at home (rather than in business where it may be used almost constantly for as much as eight hours a day, five days a week) the Tribunal considers a period of between (sic) two years to be the period within which it would be reasonable to expect the problems experienced by the applicant with the subject computer to become apparent. 65. A finding of two years for the rejection period (under section 262) and allowing a period of three years or, in this case, and one month for the guarantee of quality (under section 54) should not be seen to be inconsistent since the rejection period serves to place a limit of two years on the applicant's entitlement to a refund (ie money back) or replacement (ie new for old) while the period of three years and one month applies to an entitlement to free repair and/or damages in the case of the breach of a provision such as section 54. 66. It should also be observed that both the time periods determined by the Tribunal have been decided by reference to the evidence in this case and do not purport to set time limits that should be applied to every case as that would be contrary to the clear intention of the ACL which does not set fixed periods but instead lists matters to be considered which obviously depend on the facts of each case.
5. At [68], the Tribunal went on to conclude that: 68. As a result, the findings of the Tribunal in relation to the applicant's claim for a refund or replacement of the computer is rejected because: (1) the computer has not been rejected by the applicant, and (2) the rejection period expired on 05 December 2017.
6. The proper approach to ascertaining the rejection period is, again, exposed in Nesbit, given the similarity in the legislation being applied there by the Court, at [34] to [35].
7. In summary, applying those comments to the relevant provisions of the ACL: 1. The rejection period runs from the date of supply, not from the date on which any defect was, or ought to have been, detected. 2. The relevant failure is the failure actually encountered by the consumer whose right of rejection is under consideration. 3. The period must be reasonable in relation to the particular defect or combination of defects causing the consumer to reject the goods. The question to be asked is "within what time would it be reasonable to expect such defect(s) to become apparent?" 4. The actual experience of the particular consumer is relevant but is to be tested against the objective criteria in s 262(2) of the ACL. Subsection (a) refers not to the particular article which was supplied but to the type of goods. Subsection (b) requires consideration of the use to which a consumer (not the actual consumer) is likely to put them, that is, that type of goods. Subsections (c) and (d) require regard respectively to the length of time for which it is reasonable for that type of goods to be used and the amount of use to which it is reasonable for that type of goods to be put before the defect becomes apparent.
8. Taking those considerations into account, there is nothing inherently perverse or incorrect in the Tribunal determining that the rejection period expired before the defect became apparent to the appellant, which appears to be the thrust of his argument in this regard.
9. There is an evaluative and discretionary aspect to the determination of the rejection period, in that the Tribunal needs to weigh the various mandatory considerations in s 262(2) of the ACL in order to reach a conclusion as to the proper assessment of the rejection period in each particular case. As long as the Tribunal does so in the reasonable exercise of its discretion, taking only relevant considerations into account, there is a notorious difficulty for an appellant to satisfy an appellate Tribunal that the decision should be interfered with: House v The King (1936) 55 CLR 499.
10. However, the Tribunal does have to expose its reasons for the way it applied the factors relevant to its considerations. Failure to do so is an error on a question of law. For that reason, we will move to consider Ground 3. Ground 3 - The Tribunal provided inadequate reasons
11. Bell P recently summarised the requirement to provide adequate reasons in respect of evaluative decision making in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [73] to [76]: 73. In this context, in Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477; [1995] QCA 187, Fitzgerald P said of the Queensland Retail Shop Leases Tribunal, adapting the language of Samuels JA in the unreported decision of this Court in Strbak v Newton (Court of Appeal (NSW), Samuels JA, 18 July 1989, unrep) (Strbak), cited in Xuereb v Viola (1988) 18 NSWLR 453 at 469, that, while such a tribunal: "might not be required to 'submit the material before [it] to the most meticulous analysis and carry into [the reasons for its decisions] a detailed exposition of every aspect of the evidence and the arguments ...' or '... incorporate an extended intellectual dissertation upon the chain of reasoning ...', at least 'a basic explanation of the fundamental reasons which led the [Tribunal] to [its] conclusion ...' is necessary". 74. It should be noted that Samuels JA in Strbak had been describing the duty of a District Court judge to give reasons as opposed to that of a tribunal member. 75. In Tatmar at 386, Mahoney JA (as he then was) observed in the context of the obligation to give reasons for a discretionary judgment that it was not necessary for a judge: "…who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemi[s]e, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23rd September, 1976, unreported; Colacicco v Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824 at 826." But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need to elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." 76. To like effect, in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [46], Basten JA said: Generally, the concept of 'reasons' requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)
12. The appellant challenges the sufficiency of various aspects of the reasons, but it is convenient to focus on the Tribunal's reasons for deciding that the rejection period expired two years after purchase of the laptop.
13. The reasons give no further insight into the basis upon which the Tribunal concluded that the rejection period had expired on 5 December 2017, beyond that referred to at [63] to [66] of the reasons.
14. The appellant asserted that he purchased the laptop for the purpose of "web browsing at home" and general purpose household use: appellants written submissions in the proceedings below at [14] and [18].
15. His evidence, which appears to have been uncontroverted and accepted, is that the latent defects in the laptop which the Tribunal accepted constituted a major failure did not become fully apparent until January 2019.
16. Prima facie, it might be expected that this evidence may be probative and promote a finding that the rejection period extended at least until the defects became apparent to the appellant.
17. That does not prevent a finding that it would be reasonable to expect such defects to become apparent at an earlier date, but the reasons should expose the considerations of the Tribunal in so finding.
18. For example, if the Tribunal had evidence that: 1. indicated that the specific Apple laptop purchased by the appellant might be expected to have exhibited the defect at a different time to laptop computers more broadly; 2. the use the appellant put the laptop to was different from that which a consumer was likely to put it; 3. there was a differentiating factor in the length of time to which the appellant put his laptop to use to that which might be expected; or 4. there was a differentiating factor between the amount of use the appellant put the laptop to and the amount of use which is reasonable before such a failure becomes apparent. Then that evidence may have affected the Tribunal's assessment of the rejection period, but should have been exposed in its reasons.
19. As was said by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728: [F]or a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge . . . may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' ... it tends to deny both the fact and the appearance of justice having been done.
20. We agree that the reasons of the Tribunal for determining that the rejection period expired after two years are inadequate. This ground is made out.
21. We note that the Tribunal also found that the appellant had not, in fact, rejected the laptop, at [68]. If that were so, there may be no injustice caused by the inadequacy of the Tribunal's reasons, leading us to not interfere with the Decision.
22. The Tribunal's reasons in this regard are contained at [67] of the decision: Further, while the applicant did write to the first respondent threatening to reject the computer, there is no evidence he did reject it. The applicant's provision of the computer to the first respondent in January 2020 was in response to the first respondent's 13 January 2020 request to make an assessment and the evidence leads the Tribunal to find that it remains with the first respondent is the result of matters which include: (1) the applicant contacting the Department of Fair Trading, (2) his commencement of these proceedings, (3) the first respondent not being willing to repair the computer without the consent of the applicant.
23. In the appeal, the appellant refers to a letter he says he sent to JB on 17 January 2020 when returning the laptop to it, wherein he says, in part "I rejected of (sic) the laptop (ACL, s 259(3)(a))". The appellant says he then went on to explain the basis for his rejection of the item. As the appellant points to in the appeal, he reiterated that position in his written submissions below, at page 36, wherein he submitted that the "parties are not required to negotiate the time at which the respondents will collect the laptop as the applicant has returned it to the first respondent in January 2020 when he rejected the goods". The appellant asserts that there was no evidence or submission by the respondents to the contrary, and there is no evidence before us that this was put in issue by the respondents below.
24. In those circumstances, and where that evidence was not referred to by the Tribunal in its reasons, we are satisfied that the appeal should be allowed.
25. We have considered whether we are in a position to re-determine the matter and substitute orders for those made by the Tribunal, as appropriate. Unfortunately, we have not been provided with the transcript of the hearing below or the material relied upon by the respondents, which includes the appellant's letter referred to in [64], above. On that basis, we are not satisfied that we can properly re-determine the matter. Rather than seeking further evidence and submissions in the appeal, we will remit the relevant aspects of the application for determination by the Tribunal, differently constituted, according to law. This has the advantage of seeing the matter dealt with quickly in the Consumer and Commercial Division and preserving the internal appeal rights of the parties if they are aggrieved by the outcome.

Other grounds of appeal

1. In light of our findings that the Tribunal erred on a question of law in the manner referred to above it is not necessary to consider the other grounds of appeal at length. It is sufficient to note that the issue we have identified in respect of the Tribunal's reasons will mean that the issues of concern to the appellant in respect of Ground 2 will need to be determined on remittal. The appellant's concerns as set out in Ground 5 related to his perception that the Tribunal had failed to consider his evidence and submissions properly or in full. To the extent that there may have been any lack of consideration of probative evidence and submissions of the appellant, about which we make no finding, that will be remedied by our allowing the appeal and remitting the relevant aspects of the application.
2. We would note that the appellant below sought orders under various other sections of the ACL, which the Tribunal rejected for reasons it provided. The appellant also challenged some aspects of the Decision in that regard in his written submissions under the notation, at paragraph 36, "Other errors were marginal to the outcome rather than vital. Nevertheless the appellant lists them to show the overall failure of natural justice/procedural fairness…" Where we have allowed the appeal, we will not traverse each aspect of the submissions in that regard. Nor are we satisfied that we should remit those aspects of the application for reconsideration. There is no obvious error in respect of the Tribunal's decision in respect of those issues and, where they were not properly identified as forming grounds of the appeal, it would be unfair were we to do so. We infer that the respondents decided not to make submissions in response to those of the appellant based on the identified grounds of appeal, which we have dealt with. We are also guided to focus on the just, quick and cheap resolution of the real issues in dispute: NCAT Act, s 36. In his Notice of Appeal, the appellant indicates that what he seeks is a refund of the cost of the laptop and costs. The question of whether orders in those terms are appropriate will be determined having regard to the orders we will make.
3. On that basis, the rejection of the appellant's claims under ss 18, 21, 29, 55, 56 and 59 of the ACL may not be agitated in the proceedings on remittal.
4. Similarly, the Tribunal will not need to determine whether the laptop lacked durability in a way which constituted a major failure, which has been decided in the affirmative. What the Tribunal will need to determine is whether: 1. The appellant rejected the laptop; 2. If so, whether the rejection period had expired by the time that occurred; and 3. What orders should be made as a consequence of those findings.
5. Given that the parties' positions will have materially changed by the time the matter is determined on remittal, the Tribunal will also need to re-determine the issue of costs.

Costs of the appeal

1. The appellant seeks his costs of the appeal. We direct that: 1. The appellant is to lodge with the Appeal Registry and give to the other parties his submissions and evidence in support of the application for costs of the appeal, within 14 days of the publication of these orders. 2. Any submissions and evidence in response are to be lodged with the Appeal Registry and given to the other parties within 14 days thereafter. 3. Any submissions by the appellant in reply are to be lodged with the Appeal Panel and given to the other parties within seven days thereafter. 4. Submissions on the application for costs by each party are not to exceed five pages in length. 5. The Appeal Panel may dispense with a hearing and determine any application for costs on the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application.

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

Amendments 11 February 2021 - 59-(4) Typographical errors corrected. 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: 11 February 2021