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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Khosla v Kuchel Enterprises Pty Ltd  QCATA 166
kuchel enterprises pty ltd t/as australian outdoor living
4 December 2020
On the papers
Leave to appeal refused.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where the appellant complained about outdoor motorised blinds – where the appellant brought minor civil dispute consumer dispute proceedings in the Tribunal – where the Tribunal found the goods were defective such that there was a failure of the statutory guarantee requiring goods to be of acceptable quality – where the Tribunal also found however that the failure was not a major failure of guarantee and could be remedied – where the Tribunal rejected the claim the goods were not fit for purpose as claimed by the seller – where the appellant misstated the seller’s requirements that the blinds remain open if possible – where the Tribunal was entitled to find the goods were reasonably fit for purpose
Competition and Consumer Act 2010 (Cth), sch 2 ('Australian Consumer Law') s 54, s 55, s 259(2), s 260
Pickering v McArthur  QCA 294
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- On 17 November 2016 Mr Khosla purchased three external blinds from the respondent (‘AOL’). They were installed on 15 December 2016.
- They were motorised and operated by remote control.
- On 19 December 2016 one of the remotes had to be replaced because it wasn’t working properly. On 25 January 2018 one of the motors was replaced. Both the remote and the motor were replaced under warranty.
- On 8 March 2019 the fabric came free from one of the tracks on one of the blinds. Mr Khosla contacted AOL about that and they advised they could not fix it, the fabric had to be replaced, and it could not be replaced under the warranty which had expired.
- Mr Khosla commenced proceedings in the Tribunal on 17 April 2019 seeking a full refund of $11,000 which was how much he had paid for the blinds originally plus he claimed legal fees of $1,500 and that AOL make good any damage caused after removing the blinds.
- He claimed there had been a breach of statutory guarantees under the Competition and Consumer Act 2010 (Cth), sch 2 ('Australian Consumer Law') (‘ACL’) and alternatively misleading and deceptive conduct on the part of AOL.
- The matter was heard by an Adjudicator on 18 February 2020 with the Adjudicator ordering that AOL arrange for a technician to inspect the blinds and replace the fabric that had come away from its tracks on the blind and ensure smooth operation of all blinds. AOL was also ordered to pay the filing fee of $338.20 to Mr Khosla.
- Mr Khosla is not satisfied with that order and seeks leave to appeal that decision.
- Given this is an appeal from a decision made in the Tribunal’s minor civil dispute jurisdiction, leave to appeal must first be obtained. If leave is granted then the appeal may proceed.
- Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.
The grounds of appeal
- Mr Khosla says there was a representation made at the time of purchase that the blinds were made for outdoor and all-weather conditions and the blinds would be a perfect outdoor solution to make a covered room in a patio area.
- He says the blinds were not fit for the purposes made known by him to AOL at purchase because the blinds were required to be rolled up in high winds and they were only intended to provide shade in calm, dry weather.
- This constituted a major failure of the statutory guarantee of fitness for disclosed purpose because the failure could not be remedied by repairs as ordered by the Adjudicator. In finding there was no major failure of guarantee the learned Adjudicator had made a mistake.
The ACL provisions
- Section 55 of the ACL provides that there is a guarantee that goods are reasonably fit for any disclosed purpose. A disclosed purpose is a particular purpose for which the goods are being acquired by the consumer made known by the consumer to the seller, expressly or by implication, or a purpose for which the seller represents they are reasonably fit.
- By s 259(2) if a failure of a guarantee is not a major failure the consumer may require the supplier to remedy the failure. If the failure to comply with the guarantee cannot be remedied or is a major failure the consumer may reject the goods and claim a refund.
- By s 260 a failure to comply with a guarantee is a major failure if, amongst other things, the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, or the goods are unfit for a disclosed purpose that was made known to the supplier of the goods and the goods cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose.
- When the blinds were installed Mr Khosla was provided with a document entitled Caring For Your Outdoor Blinds. At hearing he told the Adjudicator that the document said “The blinds must be left open at all times. Open in a stretched vertical position to avoid, you know, damaging them.”
- The document was attached to his initial application. Under the heading Care & Maintenance it states:
All blinds should be left in a vertical fixed position whenever possible. If rolled up for an extended period of time, regular unwinding and laying flat is essential for extending the flexibility and clarity. It is highly recommended that blinds should be extended for at least 48 hours at any one time before retracting. Where prolonged periods of retraction are necessary, an extended period of vertical extension is required to allow embossing and roller marking to drop out of the PVC film.
- Mr Khosla claimed because the blinds were required to be left open at all times in a stretched vertical position they were not suitable for outside Australian conditions. Mr Khosla said if he was to leave the blinds down and go to work and a bit of wind started blowing then the warranty conditions required him to drop everything at work, go home and roll the blinds up.
- But that is not what the document says. It talks about the blinds being left in a vertical position whenever possible but it also talks about circumstances where the blinds may have to be rolled up for extended periods.
- In the same document the following statement is made under the heading Operation:
Your new Australian Outdoor Living geared Outdoor Blinds are designed to offer shade and weather protection. If cared for correctly, they will provide you with years of trouble-free operation.
However, it is important that in times of gusting or high winds, you roll the Blinds up, or damage may be caused to the Outdoor Blinds and possibly to your house, which is not covered under the warranty.
- Ms Taylor who appeared for AOL said AOL manufactured more than 16,000 blinds each year. She said if there was a storm of significance and a blind was left down it was possible the blind might be damaged. The blinds can be left down in wind but not, say, a Category 3 cyclone. They are a motorised shade blind.
- There is no suggestion that the blinds, installed since December 2016, have ever been damaged by wind. The three blinds were inspected by a representative from the Blind Manufacturers’ Association of Australia who provided a report about his findings. He said on one blind the screen fabric was cut too narrow for the opening, and therefore over time the fabric had come out from its side guides. The report stated that the damage was not due to storm, wind or rain. The recommendation in the report was the replacement of the fabric and also to remedy a noisy motor.
- That owners should take up the blinds if high winds are expected does not make them unsuitable for outside Australian conditions. Similar prudent considerations surely apply to such outdoor furniture as free-standing pool shades.
- The motorised up and down action is a particular attribute of these blinds. The blinds are clearly not intended to remain fixed in a stretched vertical position at all times as claimed by Mr Khosla.
- The Adjudicator was accordingly entitled to conclude that the defects with the blinds were limited to the fabric pulling away from the side guides on one and noisy motors. He was entitled to find as he did that those defects amounted to breaches of the guarantee of acceptable quality under s 54 of the ACL but that the breaches were not major failures of the guarantee. The failures could be remedied and he did not accept that a consumer reasonably acquainted with the nature and extent of the failure would not have acquired the goods.
- Similarly the Adjudicator was entitled to find that there had been no breach of the guarantee of fitness for purpose of the blinds in outside Australian conditions. He found the requirement that they be kept open wherever possible, and be retracted from time to time in high winds, did not detract from such claimed use.
- The requirement of s 55 of the ACL is not that the product be perfectly fit for their claimed purpose but reasonably fit. Whether or not goods are reasonably fit for a claimed purpose is a question of fact to be determined on the circumstances of each case. The Adjudicator found the blinds were reasonably fit for purpose and that finding was available on the evidence before him.
- There is no error disclosed in the findings of the learned Adjudicator. There has been no substantial injustice done to Mr Khosla. Leave to appeal is refused.
- Published Case Name:
Khosla v Kuchel Enterprises Pty Ltd
- Shortened Case Name:
Khosla v Kuchel Enterprises Pty Ltd
 QCATA 166
04 Dec 2020