Lashuk v Plush-Think Sofas Pty Ltd [2025] NSWCATCD 184;

1. In each part of the claim, the applicant bears the onus of proving each allegation on the balance of probabilities. The Tribunal must be persuaded that the alleged facts are more likely than not to have occurred. The degree of satisfaction required will vary according to the seriousness of the allegation and the gravity of the consequences, consistent with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Pollock v NSW Trustee & Guardian [2022] NSWSC 923 at [74]- [75]. Claims that are not supported by probative or persuasive evidence are not enough to meet that burden of proof. Mere suspicion or assertion is insufficient to prove a fact in issue.

1. Section 54 of the ACL provides that goods supplied in trade or commerce to a consumer must be of acceptable quality. The test is whether a reasonable consumer, fully acquainted with the state and condition of the goods (including hidden defects), would regard them 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, having regard to their nature, price, representations and other relevant circumstances (Williams v Toyota Motor Corporation Australia Ltd [2024] HCA 38 at [30]- [33]; Vautin v BY Winddown, Inc (No 4) [2018] FCA 426 at [142]- [143]).
2. The guarantee of acceptable quality under s 54 of the ACL is assessed at the time of supply. Goods must be of acceptable quality when supplied, although information that becomes available later may be taken into account in deciding whether they were of acceptable quality at that time. Where the supplier claims that the failure arose after the goods were supplied, the onus rests upon the supplier to establish that fact (Effem Foods Ltd v Nicholls [2004] NSWCA 332). Section 54 is not a guarantee of perfection. Minor imperfections or ordinary wear consistent with normal use do not necessarily mean the goods are not of acceptable quality. The test is whether a reasonable consumer, fully acquainted with the condition of the goods (including any hidden defects) would regard them as acceptable having regard to their nature, price, representations and other relevant circumstances (Ford Motor Company of Australia Pty Ltd v Capic [2023] FCAFC 179).
3. The applicant relied on a small surface cut discovered more than two years after delivery as evidence that the sofa did not meet the guarantee under s 54, being not durable or free from defects. She referred to Plush's marketing statement that its sofas "will last many, many years, no matter what the family can throw at it". I find that general statement does not amount to a promise that the sofa would never show any signs of use or damage.

1. Section 60 of the Australian Consumer Law provides that if a person supplies services to a consumer in trade or commerce, there is a guarantee that the services will be rendered with due care and skill. The test is whether the work performed met the standard expected of a reasonably competent service provider in the same circumstances. The assessment is objective and depends on the nature of the services and the expectations of a reasonable consumer (Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 at [176]).
2. It is not in dispute that Guardsman arranged three repair attendances under the Plush Shield Warranty. Both respondents accepted that, regardless of whether a current warranty was formally in place, the technician was required to perform the repairs with due care and skill.

1. Section 18 of the ACL prohibits conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. The test is objective and requires consideration of whether the conduct, viewed as a whole, would mislead a reasonable consumer (ACCC v TPG Internet Pty Ltd [2013] HCA 54; [2013] 250 CLR 640).
2. The applicant said that when she purchased the Plush Shield Warranty, she was told about the five-day reporting requirement, but not other limitations contained in the Plush Shield Warranty booklet. She said the salesperson did not explain or highlight these further restrictions, which she described as being "in fine print". Her claim is that Plush should have told her about other limitations to the Plush Shield Warranty.
3. The evidence shows that the applicant was provided with the full warranty documents at the time of sale. The applicant accepted that she did not read the full documents before purchase and accordingly did not rely on their contents in entering into the contract to purchase the sofa or Plush Shield Warranty.
4. Silence or non-disclosure will only amount to misleading conduct where the circumstances create a reasonable expectation that relevant information would be disclosed (Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31).
5. Given that Plush provided the full warranty booklet, I find that there was no reasonable expectation of further disclosure. A reasonable consumer would not expect the salesperson to verbally summarise every exclusion or limitation detailed in the booklet.
6. Even if the absence of explanation could be considered misleading, the applicant must establish that she relied on the conduct and suffered loss or damage as a result (Marks v GIO Australia Holdings Ltd [1998] HCA 69; ; ; The applicant has not done so here. There is no evidence that she relied on any omission by Plush in deciding to purchase the Plush Shield Warranty, or that she has suffered any identifiable loss. None of her warranty claims have been rejected by Guardsman. This part of the applicant's claim is dismissed.

(1938) 60 CLR 336

(1992) 39 FCR 31

(1998) 196 CLR 494

(2004) 216 CLR 388