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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Ford v Cummins  QCAT 381
BRADLEY CRAIG FORD
Other civil dispute matters
29 September 2020
27 July 2020
The application is dismissed.
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether flowers matched description – whether flowers of acceptable quality – whether goods rejected during the rejection period – whether consumer entitled to refund
Australian Consumer Law, s 54, s 259, s 260, s 262, s 263 Competition and Consumer Act 2010 (Cth), Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, Schedule 3
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
REASONS FOR DECISION
- On 31 March 2020 Mr Ford filed an Application for minor civil dispute – consumer dispute seeking a refund of the sum of $85.00 being the sum he paid to purchase flowers from the respondent, Ms Cummins, and $26.95 being his filing fee.
- The relief sought is a refund under the Australian Consumer Law, contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
- Mr Ford placed an online order on 11 February 2020 for 12 long stemmed red roses to be delivered on Friday 14 February 2020, on the occasion of Valentine’s Day.
- Mr Ford says the photograph on the website showed vibrant, fresh bright red roses and that he was induced to purchase them based on that photograph and the accompanying description.
- On the morning of 14 February 2020 Mr Ford first complained about the method of delivery of the flowers and the ensuing communication between the parties went as follows:
- (a)At 9.45 am, via a web-based contact form, Mr Ford wrote:
You guys suck. You sent flowers to my wife’s work address and the courier has delivered them out the back to goods inwards rather than to the office. I’ll never use you guys again, you obviously don’t care about your customers. That is pathetic service.
- (b)By reply email at 10.01 am, Ms Cummins wrote:
We believe all issues and concerns can be solved with a little patience, kindness and understanding. So, let’s leave the name-calling and nastiness out of it.
We’re sorry to hear the courier has taken the box to the loading dock instead of to the reception. All of our flowers are delivered in a specially designed flower box, as we explain and show on every product page. We also use a third-party courier service who delivers all our flowers for us. It is possible that the same courier had other boxes to deliver to this company’s address and so they all went to the back door instead of the front door. We’re sorry that this caused a lot of trouble and inconvenience on this occasion.
We hope that your wife enjoys the flowers and we hope you both have a lovely Valentine’s Day.
- (c)At 10.09 am Mr Ford replied:
I’ve said that you guys suck, that’s my opinion of your useless service. If you don’t like it, do better and don’t treat your customers with such disdain.
I couldn’t care less if you use a third party to deliver your flowers, I paid you, not them. Don’t be such a weak arse and try to stand behind “it’s not us, we use a third party”.
Like I said, I won’t be a customer of yours again and because of the way you’ve just spoken to me, I’ll be telling everyone that will listen to me about your pathetic service and the way you treat your customers. I’ll tell them that you don’t deserve their business and there are much better flower resellers out there. I hope you go broke.
- (d)At 10.17 am Ms Cummins went into a more detailed explanation about how the courier service worked and finished with:
We were only trying to help you better understand why this may have happened, and it most definitely was not a case of us not caring about our customers.
We’ll leave it there for now.
- (e)At 10.48 am Mr Ford’s reply included:
My wife has checked and no, they haven’t been delivered to the rear of the warehouse, even though the tracking from your courier says they have been delivered.
So what now? No delivery received.
- (f)At 11.30 am Ms Cummins confirmed that the courier had “definitely delivered”.
- (g)At 1.58 pm, more than four hours after the flowers were delivered Mr Ford attached a photograph of them (it transpired this was the photograph posted to Instagram referred to below) and said:
You’ll see that the flowers look like they are dead and not fresh. The petals of the flowers are black and appear to be falling off. This is not what I paid for. I paid for:
“Can’t go wrong with a classic! These lush red roses are the obvious option for declaring your love to your… true love. This bunch is available either as a dozen (12 stems) or 20 stems of the highest quality, red roses”.
As you can see from the photo, these flowers are neither lush nor of the highest quality. Nor do they resemble the flowers on your website. Clearly your advertising on your website is deceptive and misleading. Here is the imagine [sic] of the flowers you are using to advertise, there bare [sic] no resemblance to the product delivered.
As these flowers are not what I paid for, I would like to have them returned for a full refund of the purchase price paid. Please advise when this will occur and when the courier company that you use will collect so that I can have them ready for you.
- (h)At 2.18 pm Ms Cummins replied:
Thank you for your email. And sorry to hear of your disappointment.
We do request that all care instructions (printed on the box the flowers arrived in) are followed immediately on arrival, especially that the flower stems are trimmed before they go into the water. We receive these roses directly from the grower, and we send the flowers straight to you, which is why they will need their stems cut and time to fully hydrate and then they will start opening/blooming. Once you have allowed time for them to hydrate in the vase, please send us a full photo of the flowers in the vase and we can better see the quality issue.
- (i)At 2.20 pm Mr Ford wrote:
Hello Nameless Person,
I am not interested in mucking around any further with this poor quality product you have sent me. The flowers look absolutely terrible, putting them in water and me cutting them will make no difference and nor do I want to take the risk of damaging your product. Please advise when the courier will return to collect them and when the full refund will be processed.
- (j)Ms Cummins referred Mr Ford to the Refund/Replacement Policy set out on her website and summarised:
In order to qualify for a replacement or a refund, the following conditions must be met:
We require a photo of the whole bunch of flowers to be taken and emailed to us within 48 hours (2 days) of delivery
Proper care of the flowers must also be taken. This includes following each step of our Flower Care instructions (included with the box). We cannot guarantee freshness or beauty for flowers that are not watered and well cared for.
- (k)At 2.38 pm Mr Ford replied:
Dear Nameless Person,
I’m not interested in your refund policy. I refer you to the Australian Consumer Law which state that should you provide me with a product that is not what I’ve paid for (as promised, advertised or photographed), I can demand and am legally entitled to, through federal legislation, a full refund...
- Mr Ford declined to follow care instructions and to supply an unfiltered photograph of the whole bunch of flowers.
- Mr Ford also declined to produce a statement from his partner, who saw the flowers upon delivery and who posted the photo to Instagram, and he did not make her available to give evidence at the hearing. Mr Ford cannot have seen the flowers for himself until after his partner brought them home from work that day, at which point, on Mr Ford’s own evidence, care instructions had not been followed. An “end of day” photograph of the flowers was not supplied in any event.
- Mr Ford says that the flowers that were delivered were not fresh and were in fact showing signs of “being dead”. He seeks a full refund and his filing fee.
The respondent’s case
- Ms Cummins says that the application should fail for a number of reasons:
- (a)The flowers were not defective or of poor quality;
- (b)The flowers were as described and as advertised;
- (c)If the flowers appeared to wilt it is because care instructions were not followed; and
- (d)Mr Ford’s allegations of defective product/misdescription were unreasonable and not genuine.
- Ms Cummins referred to an Instagram post by Mr Ford’s partner, the recipient of the gift of the flowers, on 14 February 2020 which shows a photograph of the flowers delivered with the accompanying statement:
Ahh this was just delivered to my work! I'm so very spoiled!! Thank you honey you always make me feel so special And for choosing me to be your Valentine
- Ms Cummins says that post is evidence that the recipient of the flowers was happy with them and that they were not defective.
- Mr Ford says the post compliments Mr Ford, rather than the flowers. Further, Mr Ford says he is the consumer who needed to be satisfied with the product, regardless of who the end-user of the product was and what their degree of satisfaction may have been.
- In any event, Ms Cummins says the photograph posted to Instagram was filtered and cropped such that it did not accurately represent the flowers delivered. She says once packaging is removed, care instructions followed and the roses placed in a vase, an unfiltered photograph of the whole bunch will show a more accurate depiction of the overall quality and beauty of the flowers.
- Ms Cummins tendered a photograph of the larger bunch of flowers from which she selected and supplied the dozen that Mr Ford purchased. She indicated that the flowers were in good condition.
- She points out that the outer petals of the roses are kept in place until flowers are delivered to protect the inner petals.
- The respondent’s website provides as follows:
- (a)On the home page: “We handpick market-fresh flowers for you, and we arrange them in our simple, natural, fresh-from-the-markets style”.
- (b)Under a dedicated page attributed to “Flower Care”:
If you’ve been lucky enough to receive one of our flower hauls, then this fun little Flower Care guide is just for you! We deliver our flowers from the flower markets directly to your door so when you receive your flowers, they will most likely still be in a bud or closed form. This means that your flowers are very, very fresh and that you’ll get to enjoy them for much longer. Please allow 1-2 days for your flowers to blossom, and follow the steps below to get maximum enjoyment from them.
GENERAL CARE FOR ALL FLOWERS
For most flowers, these five simple steps will ensure they live a long, healthy and happy vase life:
1. Carefully remove your flowers from their packaging, and remove the hydration wrap from the stems along with any other protective packaging. Rinse the stems well.
2. THE MOST IMPORTANT STEP! Using sharp cutters, chop 2-3cm off the bottom of each stem. Chopping off the bottom a little helps your flowers to stay hydrated, and stay fresher for longer. It also helps if you cut the stems on a 45-degree angle – this provides more surface area for the flowers to drink from.
3. Remove all the lower leaves and foliage from around the bottom of the stems (that fall below the waterline). These leaves tend to make the water a bit swampy and smelly, which produces nasty bacteria that decreases the flowers' life.
4. Make sure your vase is squeaky clean (it means less bacteria and a longer vase life for your flowers.) Fill the vase with tap water, usually about two-thirds full. Pop the flowers straight into the vase. Try to replace the vase with new water every couple of days.
5. Keep the flowers out of direct sunlight and away from any breezes (fans or windows), heat sources, and bowls of fruit as they really don't like the ethylene gases that fruit emits as it ripens.
Just like in nature, your flowers will naturally blossom and wilt at different times. When any of the petals begins to wilt, pluck them out from the bunch so they don’t spoil the rest.
EXTRA CARE FOR SPECIFIC FLOWERS
There are some flowers that are a little more delicate and require specific love and care. These are listed below:
Roses and Spray Roses
You may find that some of the very outer petals on roses or [sic] look a little worn out when they arrive. These are actually guard petals that are purposely left on to protect the blooms during transport. Just carefully peel these away before putting them into the vase. Also, recutting your rose stems often will give them the longest vase life.
- Ms Cummins said she believes Mr Ford to be “an aggressive disgruntled unworkable and unreasonable character” in summarising the communication she received from him following the flower delivery. She described him as “impossible to please”.
- Nonetheless Ms Cummins offered in her submissions to the Tribunal on 25 June 2020 a refund of the $85.00 conditional upon a non-disparagement and confidentiality agreement, but on 1 July 2020 Mr Ford refused those terms and also sought his filing fee of $26.96 be paid.
Australian Consumer Law Remedies
- Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
- The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.
- Under section 54(2), goods are of acceptable quality if they are:
- (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
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 section 54(3).
- Section 54(3) provides that matters to have regard to in applying section 54(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.
- The remedy available to a consumer against a supplier depends in the first instance on whether the failure is a ‘minor failure’ or a ‘major failure’. The term ‘major failure’ is defined in s 260 of the Australian Consumer Law to relevantly mean (emphasis added):
- (a)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
- (b)the goods depart in one or more significant respects:
- (i)if they were supplied by description—from that description; or
- (ii)if they were supplied by reference to a sample or demonstration model— from that sample or demonstration model; or
- (c)the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
- (d)the goods are unfit for a disclosed purpose that was made known to:
- (i)the supplier of the goods; or
- (ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
- (e)the goods are not of acceptable quality because they are unsafe.
- The test of whether there is a major failure for the purposes of s 260 and the test for whether goods are of acceptable quality for the purposes of s 54 both adopt a ‘reasonable consumer’ benchmark.
- If the failure can be remedied and is not a major failure, the consumer is limited to:
- (a)Requiring the supplier to remedy the failure within a reasonable time; or
- (b)If the supplier cannot remedy the failure within a reasonable time, having the failure remedied by someone other than the supplier and seeking compensation from the supplier, or rejecting the goods.
- Where there has been a major failure, the consumer may (so far as is relevant to this claim) notify the supplier that he or she rejects the goods and the grounds on which he or she rejects them.
- In order to obtain a refund, the consumer is required to reject within the ‘rejection period’, defined to mean:
- (2)The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:
- (a)the type of goods; and
- (b)the use to which a consumer is likely to put them; and
- (c)the length of time for which it is reasonable for them to be used; and
- (d)the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
- The guarantee of acceptable quality does not apply if the consumer causes them to become of unacceptable quality or does not take reasonable steps to prevent them from becoming of unacceptable quality.
- Whilst the rules of evidence are relaxed in the Tribunal, we must nonetheless make a decision on the balance of probabilities based upon the evidence before us.
- I find that there is insufficient evidence to conclude that the flowers supplied to the applicant by the respondent were not of acceptable quality when supplied. The one photograph of the flowers submitted by the applicant in evidence is filtered, cropped and does not evidence accurately the colour or condition of the flowers when supplied. When asked by the supplier he declined to take such a photograph.
- In any event, even if the flowers may have been of unacceptable quality (I have found that there is insufficient evidence of this), I find that:
- (a)the applicant did not act as a “reasonable consumer”; and
- (b)the applicant did not take reasonable steps to prevent the flowers from becoming of unacceptable quality by refusing to follow care instructions that were made available both when he placed his order and on the packaging of the flowers when delivered.
- Further, the flowers supplied were 12 fresh long-stemmed red roses as described. The respondent’s website went further in alerting buyers that their flowers were fresh, could take one to two days to bloom, and, with respect to roses specifically, may require guard petals to be removed as part of the care instructions. There is no merit in the applicant’s argument that the photographed flowers used in the advertisement was misleading: flowers are a natural living product subject to variation and the photograph supplied in advertising can only be a sample.
- For the reasons given, the application is dismissed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11.
 Ibid, Schedule 3.
 Part C of the Application.
Medtel Pty Ltd v Courtney (2003) 130 FCR 182,  and .
 Section 259(3)(a) of the Australian Consumer Law.
 Section 262(2) of the Australian Consumer Law.
- Published Case Name:
Ford v Cummins
- Shortened Case Name:
Ford v Cummins
 QCAT 381
29 Sep 2020