Mark MacDonald is the proprietor of a business known as Armidale Computers and is the appellant in this appeal.
The respondent is Richard Belfield who purchased a computer from Armidale Computers on 3 March 2014.
The respondent commenced application GEN 14/27961 against the appellant claiming that a laptop, software and/or associated services supplied by the appellant to the respondent were defective.
On 14 November 2014 the Tribunal made an award in favour of the respondent in the sum of $1,630.06. The amount of the award represented the sum of $1,833.96 being the amount paid for the goods and services less an amount of $108.90 (being the cost of a modem retained by the respondent) and a further deduction of $88.00 in respect of the fees payable for a site visit by the appellant in dealing with various issues in connection with the installation of the modem.
[2]
Grounds of appeal
The notice of appeal is dated 12 December 2014. The appellant said that notice of the decision was received by him on 18 November 2014.
In item 13 of the notice of appeal the appellant requests an extension of time. He says "I understand I have 28 days to appeal from the date of receipt of judgement. I will email this to NCAT on 16 December 2014 but have requested extension as it may take a day or two for originals to arrive via post."
It appears that the notice of appeal was in fact received by NCAT on 17 December 2014. It is unclear whether the notice of appeal had in fact been emailed at an earlier time. The time to lodge an appeal expired on 16 December 2014. Therefore the appeal is one day late and leave is required.
In item 11B of the notice of appeal, which sets out the grounds of appeal, the appellant raises the following issues:
"1. Mr Belfield's evidence was swayed by Mr Buckley.
2. Weight of evidence is in favour of MA & T MacDonald.
3. Mr Buckley mislead the court numerous times."
The appellant sought leave to appeal the decision, which was a decision of the Consumer and Commercial decision, on the basis that the decision was not fair and equitable and was against the weight of evidence. Leave to appeal is required other than on a question of law.
Attachment A to the appellant's notice of appeal sets out the reasons why he asserts the decision was not fair and equitable which are as follows:
1. The respondent had a witness, Mr Buckley who gave evidence at the hearing. The appellant asserts Mr Buckley influenced the evidence which Mr Belfield gave the Tribunal.
2. The appellant says that, as the supplier, he had a right to either repair, or replace the product before being compelled to refund the purchase price.
3. The respondent had been unable to operate the supplied computer and the appellant had, on several occasions, provided guidance to the respondent concerning its operation. While the respondent complained the computer did not operate correctly but this was not the case.
4. While there had been an issue concerning the "temporary profile at logon", this issue had been resolved and the notebook had been "reformatted". That is the data on the computer had been backed up, the operating system had been reinstalled and the backup data had been reinstalled. This resolved the issue.
5. There was evidence at the hearing before the Tribunal from AMAC Computers and Computer Support Team that there were no problems with the hardware or software of the laptop which operated without fault over a few days when tested extensively.
6. There was evidence from the respondent that he did not reconnect his notebook to the wireless network at home and/or reinstall appropriate printer drivers/software. Despite instructions by the appellant to the respondent that the responded needed to connect the notebook to his wireless network and reinstall his printer, this had not occurred.
7. The evidence of the respondent's witness, Mr Buckley, should not have been accepted concerning the need for a firmware update nor should his evidence of recurring problems with the computer have been accepted.
8. There was evidence as to the version of firmware that had been installed and the Member should have concluded that the firmware was up to date. Further there were screenshots from the computer to show that "multiple thorough hardware tests performed have all passed successfully".
9. The respondent rejected an offer from the appellant to attend his premises to show him how to reconnect his computer to the wireless network and reinstall the printer software, this offer being rejected because the respondent had "obviously changed his mind and wanted an Apple Mac based computer, which Mr Buckley had recommended he purchased."
The appellant also sought leave to appeal because the decision of the Tribunal was against the weight of evidence. In item 12B ii of the notice of appeal the appellant identified the evidence on which he relied and said that this evidence showed "the notebook is operating correctly".
The respondent filed a notice of reply and provided written submissions and evidence which had been originally submitted to the Tribunal.
The effect of these submissions was that the Member thoroughly considered the evidence provided by each of the parties and correctly concluded that the computer which had been supplied was not operating satisfactorily.
[3]
Hearing of the appeal
The appeal was heard on 31 March 2015. The appellant and Mr MacDonald made submissions in connection with the documents that had been filed.
The appellant made submissions in relation to the various documents including in relation to a transcript of the audio recording of the hearing.
The submissions were to a similar effect of those set out in the written documents which the appellant had filed. The effect of these submissions was that there had been, on at least one occasion, a problem with the operation of the computer when logging on. In submissions the appellant said that he was not sure if the problem was caused by the respondent. However, the appellant did say he had been unable to clear the error message which appeared and it was therefore necessary to reinstall the software.
In relation to the respondent's claim that the computer did not connect to his home network, the appellant says that this would have been a software related issue, not a hardware problem.
In relation to the evidence provided by the respondent that there was a problem with firmware, the appellant made submissions that the firmware was in fact up to date.
In relation to the problem with the user profile, the appellant provided evidence at the hearing (see time mark 39:00 at page 5 of the typed transcript) to the effect that "the temporary profile issue was only apparent on the last time it was returned to the shop. It was not observed on the other occasions when (the respondent) returned the PC."
In response, the responded submitted that the computer did not work satisfactorily and would not connect to the home network.
In short, the respondent reiterated his submissions that he advised the appellant that he would return the computer if it did not operate correctly and, because it did not do so it had been returned. The respondent says that the evidence of his witness, Mr Buckley should be accepted.
[4]
Consideration
The decision made by the Tribunal on 14 November 2014 is an internally appealable decision to which the provisions of section 80 of the Civil and Administrative Tribunal Act No 2, 2013 (NCAT Act) apply. Section 80 provides that there is a right of appeal on any question of law, or with leave of the Appeal Panel on any other ground: see section 80(2) of the NCAT Act.
The issues raised in the notice of appeal and the submissions made by the appellant do not raise a question of law. Consequently, leave to appeal is required and the provisions of clause 12 of schedule 4 of the NCAT Act apply to the question of whether or not the Appeal Panel should grant leave. Leave is only to be granted 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).
Further, because the notice of appeal was filed after the 28 days provided in rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, the present appeal requires an order by the Appeal Panel to extend time to appeal under section 41 of the NCAT Act.
The principles applicable to whether or not time to appeal should be extended and whether or not leave to appeal should be granted were set out in the decisions of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and Urban v Collins [2014] NSWCATAP 17 respectively.
In relation to the issue of leave to appeal out of time, the appeal was lodged one day late. It would appear that the notice of appeal is dated 12 December 2014.
In circumstances where the appeal has been lodged one day late and the appellant was apparently sending the original application by post to the Tribunal's Tamworth Registry (the appellant living in Armidale) and in the absence of any evidence of prejudice to the respondent, it seems to us that the time to lodge the appeal should be extended under section 41 of the NCAT Act.
The second question is whether or not leave to appeal should be granted. This requires the Appeal Panel to consider the reasons for decision and whether or not there has been a substantial miscarriage of justice by reason of the matters set out in clause 12 of schedule 4 of the NCAT Act.
The findings of the Tribunal can be summarised as follows:
1. The appellant supplied to the respondent a laptop computer and associated software and services on 3 March 2014.
2. The respondents claim was that the computer and software provided did not operate satisfactorily.
3. The Tribunal accepted the evidence of the respondent's witness, Mr Buckley to the effect that:
1. Mr Buckley had qualifications including a degree in electronics, a certificate for an information technology specifically focused on Microsoft networking, desktop and service systems and user support; and
2. the laptop was "unstable, connecting only intermittently and unreliably to the wireless network and printers which meant that emails could not be consistently sent or received nor the internet accessed for browsing purposes."
1. The Tribunal accepted that:
1. the computer also failed to produce documents on a reliable basis as the two printers to which the laptop was to connect would not always operate satisfactorily or laptop connectivity could not be achieved at all.
2. the failure of the system to operate successfully was not caused by operational error but rather due to problems with the hardware and the firmware, the unreliable start-up of the computer and a repetition of these problems which Mr Buckley observed on 30 April 2014 after the appellant claimed to have fixed the laptop and ensured it was operating satisfactorily.
The Tribunal evaluated the evidence of the appellant to the effect that there was a problem with the temporary profile when logging on to the computer which had been rectified by the applicant reinstalling software and restoring data. However, the Tribunal rejected this evidence and preferred the evidence provided by Mr Buckley as set out above.
The Tribunal concluded that the laptop was not of acceptable quality and was not fit for the disclosed purpose nor for the purpose of the kind for which it is commonly supplied. Having set out the terms of the Consumer Guarantees found in the Australian Consumer Law, the Tribunal concluded that the problems with the laptop and software was "a major failure in that the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure and that the goods supplied could not reasonably and within a reasonable time be remedied to make them fit for such purpose."
As is evident from the submissions made by the parties, the present case was one where the Tribunal had to evaluate conflicting evidence. On the one hand, the evidence provided by the respondent was to the effect that:
1. there had been a failure of the laptop hardware and software on repeated occasions,
2. it would not connect to the respondent's home network except intermittently; and
3. these problems were recurring faults, including after the appellant had been required to reinstall the software due to the computer system not starting correctly.
On the other hand, while the appellant acknowledged that the laptop computer would not correctly start due to an error in the user profile, the appellant's submission is that the laptop and software operated correctly when tested by him and others.
The appellant also said that the respondent's witness was in error in suggesting software in the BIOS was not up to date and therefore could not have been a cause of the failure of the computer to operate successfully. However, the appellant conceded that he did not test the computer on the home network, it being asserted that access was denied.
It seems clear to the Appeal Panel from the evidence set out above that both the respondent and his witness Mr Buckley (whom the Tribunal accepted was qualified to offer an opinion concerning the satisfactory performance of the laptop and software) observed the computer not operating satisfactorily in the home of the respondent.
Further, it is clear from the evidence of the appellant given to the Tribunal and from submissions made to the Appeal Panel that the appellant accepts the computer and its software did not operate correctly on one occasion, in consequence of which it was necessary to reinstall all of the software on the laptop. In this regard, the appellant was unable to explain the cause of the failure which necessitated the reinstallation of the software. The appellant could not point to any evidence to suggest that this failure was caused by the respondent. To the contrary, the appellant said he did not know.
The appellant's primary contention is that the hardware operated satisfactorily.
The problem with this submission is that appellant sold to the respondent a computer system constituted by hardware and software. The system did not operate on one occasion which the appellant acknowledged. The appellant said that, having reinstalled the software, the computer system (that is the hardware and software) operated satisfactorily.
However, there was evidence from two other witnesses to the contrary.
The appellant did not suggest that the computer system supplied was not supposed to connect to and operate satisfactorily with the respondent's home network. This network consisted, inter alia, of printers and a modem used to connect to the internet.
There was evidence before the Tribunal from two witnesses (the respondent and his computer expert Mr Buckley) that the laptop computer system would not connect to the home network or would only do so intermittently. There was no evidence from the appellant to rebut this evidence.
In these circumstances, the Tribunal was properly entitled to conclude that the laptop computer system supplied by the appellant did not satisfy the Consumer Guarantees to which the Tribunal referred and that the laptop computer both failed to properly start up and/or connect to the respondent's home network and operate in the manner which the parties contemplated when the laptop was sold.
The Appeal Panel is not satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable or was against the weight of evidence.
Accordingly, leave to appeal should be refused and the appeal dismissed.
[5]
Orders
The Appeal Panel makes the following orders:
1. The time for filing the appeal is extended up to and including 17 December 2014.
2. The application for leave to appeal is refused.
3. The appeal is otherwise 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.
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: 06 July 2015