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Cooper v Fussy by Design Pty Ltd[2019] QCATA 40

Cooper v Fussy by Design Pty Ltd[2019] QCATA 40



Cooper & Anor v Fussy by Design Pty Ltd ATF The Haddock Family Trust t/as Indigo Living & Anor [2019] QCATA 40



(first appellant)


(second appellant)



(first respondent)


(second respondent)




MCDO133-18 (Maroochydore)




29 March 2019


On the papers




Member Howe


  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 1 August 2018 is set aside. 
  4. Subject to order 5 below the matter is returned to a differently constituted Tribunal for reconsideration with the hearing of such additional evidence as deemed necessary by the Tribunal.
  5. The second respondent is removed as a party to the action returned to the Tribunal for reconsideration.


APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where appellants sought recovery of money – where claim made pursuant to the Australian Consumer Law – where the claim not considered at hearing – where the claim not determined at hearing – where party joined by the tribunal at hearing without notice – where neither notice nor service of the initiating application effected on the joined party – where the errors of the tribunal fundamental errors of law

Competition And Consumer Act 2010 (Cth) - Schedule 2, s 54, s 259(2), s 263(4)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146(d)

Pickering v McArthur [2005] QCA 294




First Respondent:

No appearance

Second Respondent:

No appearance


This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).


  1. [1]
    Mr and Mrs Cooper purchased 2 recliner chairs from the first respondent (‘Fussy’) in June 2017. Each chair cost over $3,800. Delivery was taken in November 2017.
  2. [2]
    They found the foam in one chair was collapsing after only 3 months use. They told Fussy they wanted to return the chair and get a refund. Fussy refused to do that but offered to replace the foam in the chair. Mr and Mrs Cooper did not want that and sued in the tribunal to recover their purchase price of $3,824.15 from Fussy plus the filing fee.
  3. [3]
    The matter came on for hearing before Justices of the Peace on 1 August 2018. At the hearing the Justices of the Peace joined the second respondent, Stressless, as a respondent. They ordered Stressless replace the foam in the chair. That was purportedly pursuant to an offer made on 6 March 2018 by Stressless as the manufacturer of the chair.
  4. [4]
    Mr and Mrs Cooper want to appeal that order.
  5. [5]
    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.[1]

Stressless as a party

  1. [6]
    Stressless was never joined as a respondent to the action by Mr and Mrs Cooper. It appears this was an initiative of the Justices of the Peace on the day of hearing. Ms Haddock who appeared on behalf of Fussy advised the Justices of the Peace that the manufacturer, Stressless, had offered to replace the whole back assembly of the chair, springs, frame, foam, leather, seat assembly, arms assembly and foot rest.[2] When asked if the offer was still currently available Ms Haddock said yes.[3]
  2. [7]
    The Justices of the Peace made an order purporting to give effect to that offer.
  3. [8]
    However, clearly, that was not an order available to them. Stressless was not a party to the action. Stressless had never been served with a copy of the application. Indeed Stressless took no part in the hearing before the Justices of the Peace, nor similarly in the appeal proceedings. It is unclear whether Stressless is aware of the order made against it.
  4. [9]
    The order made below cannot stand. That it is an order made against a party with no notice of the proceeding and without having been given an opportunity to be heard in the action constitutes a fundamental error of law and a substantial injustice against that party.

A claim under the ACL

  1. [10]
    Mr and Mrs Cooper also complain that they were entitled to a full refund of their purchase price pursuant to the provisions of the Australian Consumer Law (‘ACL’).[4] They say they should not have to accept the faulty chair being repaired. They have no confidence that the chair can be repaired.
  2. [11]
    Mr and Mrs Cooper made it clear at hearing that the chair had a major fault and they wanted their money back.[5] Mr and Mrs Cooper referred variously to the chair having a major fault and the problem being a major failure.[6] They submitted it must be a major failure given the offer by the manufacturer to replace all the component parts of the chair.
  3. [12]
    Indeed the Justices of the Peace themselves referred to the ACL and major and minor “faults” and the different consequences depending on the categorisation of the fault.[7]
  4. [13]
    Despite that the Justices of the Peace did not address or determine the issue raised by Mr and Mrs Cooper which was that they were entitled to a refund rather than allow the manufacturer to repair the chair.
  5. [14]
    By s 54 of the ACL if goods are supplied to a consumer in trade or commerce there is a guarantee that the goods will be of an acceptable quality.
  6. [15]
    In broad terms, if that guarantee is breached then the remedy available to the consumer will depend on whether the breach was a major or minor failure of guarantee. By s 259(2) if the breach can be remedied and is not a major failure then the consumer may require the supplier to remedy the failure. If it is a major failure, then the supplier is entitled to reject the goods. If goods are rejected, then by s 263(4) the supplier must refund the consumer’s money.
  7. [16]
    That claim should have been considered and determined by the Justices of the Peace. There are no reasons given for the decision to direct Stressless to repair the chair. That order does not appear to have been consequent on any determination about breach of a guarantee under the ACL, about the defect being a major or minor failure of guarantee, nor whether Mr and Mrs Cooper rejected the goods appropriately as required by the ACL.
  8. [17]
    Rather the decision seems to have been based on the view taken by the Justices of the Peace that the offer made was very reasonable. There was no consideration given to the ACL guarantee provisions nor the claim by Mr and Mrs Cooper that they were entitled to a refund as of right pursuant to the ACL provisions.
  9. [18]
    Mr and Mrs Cooper were entitled to have their claim to a refund considered and determined. That it was not amounts to an error of law on the part of the Tribunal.


  1. [19]
    In the circumstances leave to appeal should be granted and the appeal allowed and the matter referred back to a differently constituted Tribunal to determine Mr and Mrs Cooper’s claim against the only respondent appropriately joined to the action, Fussy.
  2. [20]
    By s 146(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in deciding an appeal against a decision on a question of law only, the Appeal Tribunal may set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration, and amongst other things, may make any other order it considers appropriate. Given Stressless was never a party to the original action and has never been served with the initiating proceedings nor appeared in or taken part in the appeal it is appropriate to order that the matter be returned to a differently constituted Tribunal for reconsideration without the second respondent Stressless as a party to the action.


[1]Pickering v McArthur [2005] QCA 294, [3].

[2]  Transcript (T) 1-12, Lines (L) 5-27.

[3]  Ibid line 31.

[4]Competition And Consumer Act 2010 (Cth) - Schedule 2.

[5]  T1-5, L42.

[6]  T1-8, L32-40.

[7]  T1-16, L21-42.


Editorial Notes

  • Published Case Name:

    John Cooper and Helen Cooper v Fussy by Design Pty Ltd ATF The Haddock Family Trust t/as Indigo Living and Ekornes Pty Ltd t/as Stressless

  • Shortened Case Name:

    Cooper v Fussy by Design Pty Ltd

  • MNC:

    [2019] QCATA 40

  • Court:


  • Judge(s):

    Member Howe

  • Date:

    29 Mar 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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