Jayasooriah v Moore Park Supa Pty Ltd [2025] NSWCATCD 88;

(1) The applicant had years of full use of the First TV;

(2) A full refund is, given the years of use, unreasonable;

(3) The Second TV was the best available alternative at the relevant time;

(4) The price of the Second TV is largely irrelevant because pricing for televisions is deflationary over time;

(5) While the Second TV does not support DTS audio, it is otherwise a far superior TV;

(6) The Applicant's new television (not the subject of the dispute), an LG G2, also does not support 3D display or DTS audio; and

(7) The First Respondent has the First TV and has offered to return this to the Applicant.

1. The Second Respondent does not materially contest the chronology of events put forward by the Applicant (and summarised at [2] - [3] in these reasons) but submits that in the circumstances the Second Respondent has no liability to compensate the Applicant.
2. In summary, the second respondent's position is that the Applicant had full use of the First TV for around 5 years and that an identical replacement cannot be offered because 3D television display panels are no longer being manufactured. They argue that on realising that the Applicant had been provided with a 2D display panel during repairs to the First TV, the First Respondent offered the Second TV as a replacement and the Second Respondent offered compensation of $395. The Applicant chose the Second TV instead of the compensation. The Second Respondent accepts that their technician provided the wrong panel for the First TV but submits that a 3D panel could not have been provided at the time because none were in production. This is not an issue which they say is unique to the Second Respondent but is an industry wide development.
3. The Second TV was, at the relevant time, the most appropriate replacement model - it represented a high end offering manufactured by the Second Respondent. In this regard, the Second Respondent refers to s 263(4)(b) of the ACL, which obliges a supplier to provide a replacement for rejected goods "if such goods are reasonably available to the supplier". The Second Respondent argues that in circumstances where a direct replacement for the First TV was not available, the offer of the Second TV was a suitable alternative replacement.
4. In relation to the First TV, the second respondent argues that they were not obliged to replace the display panel after the image burn in issue. They argue that this can occur through consistent display of bright text on the panel and is at least plausibly caused by the way in which the Applicant has used the First TV.
5. In relation to the Second TV, the second respondent argues that:

(1) DTS support is not a general requirement, and is something specific to the Applicant which was not raised prior to his being offered the Second TV;

(2) The Second TV is in good working order, having had its power board replaced.

1. The Second Respondent acknowledges that the power board issue affecting the Second TV took some time to investigate, diagnose and address but submits that this is in part because the Applicant refused to provide the Second TV to a workshop and because the fault was intermittent.
2. The Second Respondent argues that the effective lifespan of a TV of this kind is 7 - 10 years and that limited weight should be given to the Applicant's assessment of the anticipated life (100,000 hours) for two reasons. Firstly, the source of that estimate is a Korean website and not a representation made by either respondent, secondly because there are methods by which an owner can reset or vary hours of usage. They suspect that this may have occurred in the Applicant's case.

1. The issues for determination by the Tribunal are:

(1) Has the Applicant established that the First TV is not of acceptable quality?

(2) Has the Applicant established that the Second TV is not of acceptable quality?

(3) Was either respondent required to offer the Applicant some remedy for some other failure to comply with of the ACL?

(4) Was the remedy the respondents offered to the Applicant sufficient?

(5) Is the Applicant entitled to reject the Second TV?

1. Each of those issues is addressed in turn below.

Has the Applicant established that the First TV is not of acceptable quality?

1. Yes, but this this failure to comply with s 54 of the ACL has been remedied and is not a major failure.
2. This is a decision to be made on the basis of evidence about the state of the First TV at the time of supply (see: Jayco at [27] per Wheelahan J).
3. The Applicant argues that the First TV was affected by the following faults:

(1) A defective power supply; and

(2) A defective 3D Panel.

1. I am satisfied that the defective power supply amounts to a breach by either or both of the First Respondent and Second Respondent of the guarantee in s 54 of the ACL because it caused the First TV to not be free from defects. There is no arguable dispute that this defect has been remedied by the Second Respondent in accordance with s 261(b) of the ACL. I am not persuaded that there was a major failure to comply with s 54 of the ACL in respect of this fault because it appears that the fault was proactively addressed by the Second Respondent and did not cause any material interruption to the applicant's use of the First TV.
2. In respect of the defective 3D Panel, I note that I am referring to the panel which formed part of the First TV and not the replacement panel later installed by the Second Respondent.
3. In respect of the original 3D Panel, There is nothing that persuades me that this fault/issue is the result of a failure by either the First or Second Respondent to comply with the guarantee in s 54 of the ACL. I accept the submissions made by the Second Respondent that the persistent display of images on the screen may occur because a bright image has remained on screen for an extended period of time. It's not necessary to determine whether this has arisen because of use of subtitles specifically, but the First TV was used, on the Applicant's evidence, for around 9,300 hours before the issue arose. The applicant has not provided any evidence which helps the Tribunal understand the specific nature of the fault he refers to. This is part of the burden of proof that he has. It's not sufficient simply to demonstrate that there is a fault with the First TV in circumstances where a significant period of time has passed during which the First TV has been used for approximately 10,000 hours.
4. On balance and on the available evidence, I am not persuaded that this arises from a manufacturing fault. In this regard, I note the Second Respondent's evidence given during the hearing that the user manual for the First TV flags this as an issue for users to be aware of and to consider when using the First TV.

Has the Applicant established that the Second TV is not of acceptable quality?

1. Yes but, as with the First TV, this failure to comply with s 54 of the ACL has been remedied and is not a major failure.
2. The Applicant claims that the Second TV has been affected by the following faults:

(1) A defective power supply; and

(2) Failure to support the DTS Codec.

1. In respect of the first fault, I am satisfied that the First Respondent and the Second Respondent (as supplier and manufacturer respectively) have failed to comply with the guarantee in s 54 of the ACL. It's not in dispute that the power supply was affected by some manner of defect.
2. However, the Second Respondent has replaced the defective power supply. This does not seem open to dispute. Similarly, it is not open to dispute that the fault was intermittent. The Applicant has not led evidence that this fault meant that he was unable to use the Second TV at any time other than while it was being repaired by the Second Respondent. I am not persuaded that this amounts to a major failure by the First or Second Respondent to comply with s 54 of the ACL and am satisfied that this fault was remedied by the Second Respondent in accordance with s 261(b) of the ACL.
3. The Second Respondent submits that they received reports about faults and had service technicians attend as follows:

(1) A report by the Applicant on 12 February 2022, in which the Applicant is said to have reported issues with brightness and colours. This was investigated by a service technician on 16 February 2022 and determined to be the result of changes to the settings made by the Applicant (see: Second Respondent's submissions at [9] and Annexure C to the same).

(2) A report by the Applicant on 18 February 2022, that the Second TV had turned itself off. This was responded to with an offer to return the First TV and to provide compensation of $250.

(3) A report by the Applicant on 29 July 2022, that the Second TV had turned itself off and on again. This was investigated by a service technician on 03 August and was unable to be substantiated. Error logs in the device did not establish any manner of fault (see: Second Respondent's submissions at [13] and Annexure D to the same).

(4) A report by the Applicant on 05 August 2022, that the Second TV had turned itself off and on again. This was investigated by a service technician on 16 August 2022 and the Second TV was found to be working as per the manufacturer's specifications (see: Second Respondent's submissions at [15] and Annexure E to the same).

(5) A report by the Applicant on 23 August 2022, that the Second TV had turned itself off and on again. On this occasion, the Second TV was collected by the Second Respondent's service technician on 08 November 2022 and taken to a service centre where a minor fault with a power supply and motherboard was identified and repaired.

(6) The Second TV was due to be returned to the Applicant on 15 November 2022 but he cancelled the delivery.

1. I prefer the Second Respondent's account of events relating to the Second TV to the Applicant's account because I consider it is more consistent with the supplied service records which are annexed to the Second Respondent's submissions. This account supports the view that the first reported fault with the Second TV (on 12-Feb-2022) was no fault at all and that the ultimately identified problem with the power supply or motherboard was intermittent and infrequent, occurring only a handful of times over the coming months.
2. I am also satisfied that the Second TV was ultimately repaired within a reasonable time having regard to:

(1) The limited affect on the Applicant's use of the Second TV (noting that the applicant had full use of the Second TV for all but 7 days of the relevant period);

(2) The intermittent nature of the fault; and

(3) The Second Respondent's earlier efforts to diagnose the intermittent fault, which did not yield any evidence of an issue that needed to be resolved.

1. In respect of the second fault, I accept that the Second TV does not support this audio codec. This does not seem to be controversial. I do not accept that this makes the Second TV not of acceptable quality within the meaning given in s 54 of the ACL. This is not a defect, and I do not accept that the absence of this feature causes the Second TV not to be fit for all the purposes for which goods of that kind are commonly supplied.
2. The Applicant has made submissions that this ought to be available through other accessories, including an LG Soundbar (see: Applicant's submissions at [44]). No evidence has been provided as to whether or not this functionality is available or working with the Second TV or any other television. This does not go beyond an assertion.
3. I also do not accept that either respondent has represented to the Applicant that the Second TV would support DTS. I do not accept that this is implicit in their representations that the TV was a premium or high end product.
4. I consider that the Applicant has, to some extent, acknowledged this. During the hearing, it was put to him that his new television (an LG G2) also does not support 3D or the DTS codec. The Applicant did not deny this.
5. This is an unusual requirement and plainly it was open to the Applicant to undertake his own due diligence before accepting the Second TV.
6. On the material before me, I find that the Second TV is in good working condition and has been made available to the Applicant.

Was either respondent required to offer the Applicant some remedy for some other failure to comply with of the ACL?

1. Yes, in respect of the services rendered by the Second Respondent to the First TV.
2. While I am not satisfied that the respondents were, by operation of the ACL, obliged to replace the 3D panel in the First TV the Second Respondent has elected to do so. The guarantee in s 60 of the ACL applies to such work.
3. I find that the work to replace the 3D panel in the First TV did not meet the guarantee in s 60 of the ACL because the Applicant ought to have been entitled to expect either that he would receive a 3D panel as a replacement or, in the alternative, that he would have been put on notice that 3D panels were no longer available.
4. As a result, the Second Respondent has failed to comply with the guarantee in s 60 of the ACL and is obliged to remedy the same on request by the Applicant. This is a major failure within the meaning given in s 268 of the ACL.

Was the remedy the respondents offered to the Applicant sufficient?

1. Yes.
2. For the reasons already given the repairs provided by the First and Second Respondents were sufficient to address the substantiated claims that they had failed to comply with s 54 of the ACL.
3. In respect of the failure to comply with s 60 of the ACL, the First Respondent offered the Applicant the Second TV, the Second Respondent offered the Applicant a small payment for loss of the 3D functionality. The Applicant elected to accept the Second TV.
4. As set out above, the Applicant argues that the Second TV was not a suitable remedy for the defects connected with the First TV including because the two devices are not identical and do not have feature parity. He argues that the ACL requires the replacement offered by a supplier/manufacturer to be identical.
5. I do not agree with this submission for two reasons.
6. Firstly, the applicant's reasoning is particular to his claims in relation to s 54 of the ACL. In circumstances where I have found that there is no major failure to comply with that guarantee and where remedies have been provided within a reasonable time, the applicant is not entitled to demand or require a particular form of remedy be offered by the First or Second Respondent. In this regard I refer to s 256(2)(a) of the ACL, which relevantly provides:

the consumer may require the supplier to remedy the failure within a reasonable time

1. This gives the Applicant no control over the means by which the First or Second Respondent would remedy the alleged breach. Absent a major failure or a failure to provide a remedy within a reasonable time, he has certainty as to the outcome, but not as to the means through which it is achieved.
2. This interpretation is consistent with the language in other sections of the ACL, for example s 261 which sets out number of options by which a supplier may remedy a failure to comply with the ACL. The word may confers a discretion and the section does not indicate that it is intended to operate as an exclusive set of options for a supplier to comply with the obligation in s 259(2).
3. Secondly, I also consider that the Applicant is precluded from resiling from his agreement to accept the Second TV because there was an "accord and satisfaction" between the parties (see: see: El-Mir & 1 Or v Risk [2005] NSWCA 215 at [48]) which operates as a bar to him now seeking to enforce rights pursuant to the ACL to a different effect.
4. While not expressed in these terms (and noting that the parties are not legally represented), this is plainly a fundamental pillar of the argument put by the respondents and one which the Applicant has engaged with.
5. It is a trite observation, but the Second TV is plainly not identical to the First TV and I am not satisfied that it was presented to the Applicant as being such. During the hearing (and in his written submissions) the Applicant concedes that he was aware the Second TV did not have a 3D display. This is an obvious and significant point of difference. It was, in my view, open to the Applicant to consider the particulars of the offer put to him by the First Respondent and the Second Respondent prior to accepting such an offer. Noting my findings at [57] I consider that any failure on his part to do so is at his own risk.

Is the Applicant entitled to reject the Second TV?

1. No. For the reasons set out above, I am not satisfied that the failure to comply with s 54 was a major failure nor am I satisfied that there was a failure to remedy within a reasonable time. In those circumstances, the applicant is not entitled to reject the Second TV pursuant to s 259 of the ACL.
2. For completeness, the right to reject goods for a failure to comply with a consumer guarantee necessarily only applies to goods. It does not apply to services, and remedies arising from rejection cannot be sought in respect of the established breach of s 60 of the ACL.

1. For the reasons set out above, I am not satisfied that the Applicant has established an entitlement to recover the compensation he claims. I have found that the established failures to comply with ss 54 and 60 of the ACL have been remedied.
2. Had the Applicant been successful in establishing either that a failure had not been remedied, or that he was entitled to reject the Second TV, I would not have awarded the damages sought.
3. The Applicant had the full benefit and use of the First TV for approximately 10,000 hours over approximately 4 years. This is significant use over a significant period of time. His evidence about the effective lifespan of a 3D Panel is not sufficiently compelling to justify the refund sought.
4. During the hearing the applicant sought orders to the effect that, if he was unsuccessful, he wished to have the First TV and Second TV returned to him. From the evidence given during the hearing, it appears that the First Respondent has possession of the First TV, and the Second TV is held in storage by a third party at the behest of the Second Respondent.
5. I am not persuaded that the Applicant ought to be able to have both the First TV and Second TV returned to him, in circumstances where he has been materially unsuccessful in his claim. Pursuant to s 79R of the FTA, I will make orders for the applicant to make an election about which television he wishes to retrieve.
6. In respect of the storage costs noted by the Second Respondent, I express no view about whether or not these are recoverable but they are an amount which is expressed as being due to a company which is not party to these proceedings, an order cannot be made for payment of such costs in these proceedings. If the Applicant seeks to recover the Second TV, the Tribunal encourages the parties to engage in commercially reasonable negotiations in respect of those storage costs noting that the applicant has no direct contractual relationship with the vendor who is storing the Second TV.

(1) Within 7 days of these orders, the Applicant is to notify both respondents, by email, whether he wishes to retrieve either the First TV or the Second TV (but not both).

(2) If the Applicant gives notice in accordance with these orders that he wishes to retrieve the First TV, the First Respondent is to make the First TV available to the Applicant on at least 3 days' notice during business hours on a date no later than 02-Jul-2025. The First Respondent is not required to transfer or deliver the First TV to the Applicant.

(3) If the Applicant gives notice in accordance with these orders that he wishes to retrieve the First TV, the First Respondent is to make the First TV available to the Applicant on at least 3 days' notice during business hours on a date no later than 02-Jul-2025. The First Respondent is not required to transfer or deliver the First TV to the Applicant.

(4) The First Respondent and Second Respondent may retain or dispose (in whatever manner they see fit) of the First TV and Second TV (as appropriate) if they are not notified or the relevant televisions are not retrieved by the Applicant in accordance with these orders.

(5) The application 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.