The Applicant$$s case

The applicant$$s case, although not articulated as such, alleges that each of those guarantees was breached, and that in the words used by the ACL, that the goods had $$failures$.$

He alleges that the failures are $$major failures$$ which entitle him to reject the goods.

Alternatively, he alleges that if any of the failures are not major failures, the respondent did not remedy the failures within a reasonable time, thus entitling him to reject the goods.

To identify the particular failures in the goods, in his claim the applicant identifies these things:

Sagged cushion in one recliner chair as at $22$ November $2014$;

Pulled stitching on several sewn joins as at $22$ November $2014$;

A hole$/$rub mark on one console as at $22$ November $2014.$

Two sagging recliners as at approximately $28$ January $2015$;

Both recliners had play in the back of them at $28$ January $2015$; and

Further wear, holes and sagging at $11$ March $2015.$

The applicant tendered $20$ photographs of the lounge suite, eight dated $22$ November $2014,$ two dated $15$ February $2015,$ and ten dated $11$ March $2015.$ Six of those photographs showed wear or damage to the goods that on the evidence did not exist at the date of delivery. The balance is inconclusive as to what they are attempting to show. For example, some of the photographs may show sagging cushions or merely cushions out of alignment through use. The photographs do not assist with identifying any possible cause of the wear or damage or with the overall condition of the suite. The applicant agreed the suite was still in use by his family.

The applicant also relied on a report from Mr Anthony Attard of Luv$-$a$-$Bear industries. The report does not state the expertise or qualifications of Mr Attard or attach photographs to relate his comments. It does state that he has been $25$ years in $$his trade$$ He states that holes have been caused by foam collapsing but does not give a cause of the foam collapse. His analysis of the recliner chairs is inconclusive. The report does not draw any conclusion as to the overall ongoing utility of the suite. Little weight should be given to this report.

The applicant also relied upon a report from Mr Rob Kahler of Rob Kahler Upholstery dated $12$ May $2015.$ This report also does not describe the qualifications, expertise or experience of the author however I give greater weight to this report as it is identified as being authored by an upholsterer. The report does give reasons for seating foam breakdown, holes in the side of cushions, dacron wadding on footrest collapse, and dacron folding in placeson seats and backs. Stitching is loose on most seats and footrests. He describes material replacement cost at $$451\mathrm{.}00$ incl GST and labour at $$1,210$ incl GST$.$ The Respondent$$s case

The respondent admitted the transaction and that some warranty work was required to the goods but denied that the goods had suffered $$major failure$.$

The respondent relied on a copy of the tax invoice of $14$ August $2014,$ a chronology of events signed by Ms Johnson, and a statement by Mr Todd Johnson, an employee of the respondent dated $28$ May $2015.$ The statement of Mr Todd Johnson described that he had inspected the suite on $1$ December $2014$ and again on $28$ January $2015.$ He disputes that the foam is faulty but rather believes that pocket springs in the seats where the casing has collapsed, caused the seat to lose shape. Mr Johnson states that the supplier had agreed to repair two recliner pieces required repair works and that $3$ cushions would be replaced.

The respondent submitted that the failures are minor and can be rectified by repair of chairs and three cushion replacements which it agrees to arrange.

Consideration of the issues

The remedy the applicant seeks is a refund, not repairs. To require this, the relevant failure must be $$major$.$ Under s $260($a$),$ a failure is major if the reasonable consumer, fully acquainted with the nature of $$the failure$,$ would not have purchased the product.

There was no failure alleged at the time of supply, but rather the applicant made complaint to the respondent after $3$ months of using the goods.

Findings

The Tribunal finds:

a$.$ The Application

Orders

The Application is dismissed because: having considered the material placed before it$,$ the Tribunal is not satisfied $($at the civil standard of proof$)$ that the grounds required to make the orders sought have been established.

P Harris

General Member

Civil and Administrative Tribunal of New South Wales

$22$ September $2015$

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

REQUIRED:

Several commentators have presented contrasting opinions on the adjudication of the case in question. Some believe the judgment was incorrect, whereas others argue it was well$-$founded.

You are requested to offer your analysis on the soundness of the decision.