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[2014] NSWCATCD 21
NCAT Consumer and Commercial
2013-10-02
Original judgment source is linked above.
Hearing and representation 1This matter was heard in Queanbeyan on 2 October 2013. Each party was present.
Jurisdiction of Tribunal 2The application was made in the General Division of the CTTT. 3The relevant legislation is the Consumer Claims Act 1998 (NSW), pursuant to which the CTTT had jurisdiction to hear disputes relating to consumer claims. In determining a consumer claim the CTTT applies the Consumer Claims Act 1998 and the Australian Consumer Law [Schedule 1 to the Competition and Consumer Act 2010 (Cth)] so far as it is applicable in New South Wales. 4The application was for an order to pay the amount of $4,707.65 being the total of the price paid for the purchase of a Blue Great Dane puppy, freight charges and veterinary fees. The puppy was purchased in October 2012 and died in April 2013. The applicants claim that the puppy had megaoesophagus, a hereditary condition which considerably reduces the lifespan. The applicants assert that the puppy was not of acceptable quality and that they were entitled to a refund and consequential losses. 5Section 3 of the Consumer Claims Act defines goods as follows: "goods" means any tangible thing that is or may be the subject of trade or commerce, but does not include money or an interest in land. Therefore, for the purposes of the Act a puppy is included in the definition of goods. 6Section 3 of the Consumer Claims Act also provides that "supplier" means a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services. 7Section 3A of the Consumer Claims Act provides: For the purposes of this Act, a "consumer claim" is: ... a claim by a consumer for the payment of a specified sum of money, ...that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services. 8The evidence before the Tribunal was that the respondent was a registered breeder of Blue Great Danes. However the respondent gave evidence that he bred puppies as a hobby only and not as a business; in the past 10 years he had bred 3 litters; and that he bred puppies in order to promote the breed and not as a business. He also gave evidence that he did not claim expenses or declare the income relating to the puppies in his tax return. 9The Tribunal determined that the sale of the puppy was not in trade or commerce; and that the supply of the puppy had not been in the course of carrying on a business to supply puppies. Therefore the sale of the puppy did not fall within the definition of a consumer claim pursuant to the Consumer Claims Act. 10The Tribunal nevertheless turned its mind to the effect of the provisions of the Australian Consumer Law, in particular section 54 (2) and 54(3): (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. 11The evidence before the Tribunal was: (a)puppy had been examined and vaccinated by a qualified vet prior to being shipped to the applicants on 30 November 2012; (b)puppy was said by the applicants to be "going great" in an email sent on 19 December 2012; (c)that on or about 3 February 2013 the applicants informed the respondent that the puppy had a medical condition being an enlarged oesophagus, that was possibly hereditary and that he may grow out of; (d)on or about 22 February 2013 the puppy was struck by a car and suffered some injuries to his head with a fractured jaw; (e)on or about 7 March 2013 the applicants wrote to the respondent enquiring about de-sexing the puppy and in that email correspondence stated "Hi just letting you know Henry is doing really well!"; (f)on or about 15 April 2013 the puppy was euthanised following a diagnosis of aspiration pneumonia secondary to his megaoesophagus; (g)a letter from Hall Veterinary Surgery, dated 17 August 2013 states that the owners were advised how to manage the megaoesophagus condition and that megaoesophagus condition is consistent with a congenital cause. Other evidence provided by the respondent indicates that there is no test to establish any genetic defect, that mega oesophagus is diagnosed on the basis of symptoms and that it may be either hereditary or acquired - for instance through poor feeding habits; (h)the applicants provided no autopsy evidence of the actual cause of death, no evidence that the mega oesophagus condition was more likely than not to be a genetic defect. 12The Tribunal therefore was not satisfied on the evidence before it that, if this matter was to be considered pursuant to the Australian Consumer Law, the applicants has established on the balance of probabilities that the puppy was not of "acceptable quality".
Orders made 13The Tribunal dismissed the application on the basis that the Tribunal has no jurisdiction to determine the application.
Application for costs 14On 28 October 2013 the respondent made an application for the payment of legal costs, travelling costs and loss of wages. 15On 15 November 2013 the Tribunal made directions for the filing of submissions in relation to the application for costs. No documents were received from either party in compliance with those directions. The Tribunal therefore has regard only to the documents filed with the application. 16Section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides that (1)Subject to this section and the regulations, the parties in any proceedings are to pay their own costs. (2)The Tribunal may, in accordance with the regulations, award costs in relation to any proceedings. (3)If costs are to be awarded by the Tribunal in accordance with the regulations, the Tribunal may: (a)determine by whom and to what extent costs are to be paid, ... (4)In this section, "costs" includes the costs of, or incidental to proceedings. 17Regulation 20 of the Consumer, Trader and Tenancy Tribunal provides in relation to section 53 of the CTTT Act, that the Tribunal may award costs in relation to proceedings in respect of which the amount claimed is not more than $10,000.00, only if the Tribunal is satisfied that there are exceptional circumstances that warrant the awarding of costs. 18The Tribunal is satisfied that an order dismissing a claim in circumstances where the Tribunal has no jurisdiction to deal with the matter is circumstances that warrant the awarding of costs. 19The respondent has provided to the Tribunal a copy of an invoice from Farrell Goode Pty Ltd, Solicitors and Conveyancers in the amount of $82.50. It is well accepted and applied principle that Tribunals and Courts have the power to make an order for legal costs. 20The respondent has claimed travelling costs, meal allowances and the loss of wages for one day, to October 2013 the hearing date. However, the respondent has not particularised those costs. 21The Tribunal adopts the view of President Morris in the Victorian Civil and Administrative Tribunal decision Aussie Invest Corporation Pty Ltd v Hobsons Bay CC. [2004] VCAT 2188 (12 November 2004) that having regard to the special circumstances of Tribunals such as this, the Tribunal has power to make an order for costs in favour of an unrepresented person to compensate the person for wages lost and travelling expenses incurred in attending a hearing of a proceeding. 22The respondent has not particularised his costs but has provided the information that he travelled 784 km and that he was unable to attend work on the date of the hearing. The Tribunal therefore estimates these costs as follows: $392.00 being $0.50 per kilometre travelled; and $100.00 being lost wages.
Order 23The applicants Lauren Allen and William Bruce shall pay an amount of $574.50 to the respondent Chris O'Loughlin on or before 27 January 2014. Jann Lennard General Member Civil and Administrative Tribunal of New South Wales 21 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar
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: 16 May 2014
Lauren Allen and William Bruce
Chris O'Loughlin