Consumer Claims - What Are The Processes In The CTTT

. What is the process in the CTTT?

When the CTTT makes orders it has to take certain factors into account:

• Fairness & Equity.
• The relevant bargaining position of the parties.
• Whether or not any party to the claim is not reasonably able to protect its interests.
• The relative economic circumstances, educational background and literacy of the parties.
• Whether or not and when legal or other expert advice was obtained.
• Whether undue influence, unfair pressure, unfair tactics were exerted.
• The conduct of the parties together with other matters where the subject of the claim is a contract for the supply of goods or services or a collateral contract for such a contract.

The CTTT generally does not award costs except in particular circumstances.  Each party is to pay their own costs.  The Tribunal may award costs but it is highly unlikely.
The Consumer Claims Act (NSW) 1998 ("the Act") provides for both appeals to the Supreme Court on matters of law and re-hearings by the CTTT itself.  In relation to appeals to the Supreme Court these can be made on matters of law and the Supreme Court may, unless it affirms the decision of the Tribunal, make such order as it sees fit or remit its decision to the tribunal and order a rehearing.  Importantly if a rehearing is held, fresh evidence, or evidence in addition to or in substitution of the evidence on which the original decision was made, may be given on the rehearing.  The time for filing an appeal to the Supreme Court must be filed within 28 days after the material date. 

In relation to rehearings by the CTTT there is a procedure in the CTTT to allow this to occur.  The grounds on which such an application may be made are that the applicant may have suffererd a substantial injustice for various reasons.  Any application for a rehearing is to be in writing, it must be lodged within 14 days after the date of notification of the tribunal's order in respect of the completed proceedings.  The other party must respond to the application for a rehearing within 7 days after the party has been notified and given a copy of the application.

 2. Are the terms of the contract important?

As the Act deals with consumer contracts it is important to prove whether a statement made may be characterised as a term rather than a mere representation.  Whether the statement may be characterised as a term rather than a mere representation depends upon the intention of the parties.  The parties' intentions must be determined objectively. The intention of the parties can only be deducted from the totality of the evidence.  Other factors that the tribunal may take into account include:

• the time of the respondent's statement, i.e. the proximity in time between the statement and the party's entry into the contract;
• the content of the respondent's statement;
• the party's failure to record the contract in writing should not influence the tribunal's consideration of whether the respondent's statement is a term of the contract.

Where the contract does not specify the time of performance obligations must be performed within a reasonable time.  When construing the terms of a contract it must be construed according to the mutual intention of the parties when viewed objectively having regard to the language that they used.  Evidence of surrounding circumstances is admissible in some cases.  With written contracts the actual language used when viewed objectively is important.

The tribunal may consider the following in construing the contract:

• the surrounding circumstances of the contract;
• evidence of the factual matrix of the contract.

Both the Sale of Goods Act and the Fair Trading Act imply terms in the consumer-type contracts. These Acts provide that certain terms are implied into all contracts for the supply of goods and services.  These Acts address amongst other things, fitness for purpose, goods sold by description, reliance on the seller's skill and judgement, merchantable quality, sale by sample etc.  Of course notice of the defect affecting the goods is to be drawn to the consumer's attention before the contract for the sale of goods is made or if the consumer has examined the goods before the contract is made and that examination should have revealed the defect then the consumer is left without a remedy.  Any term(s) in a standard contract that purports to exclude these terms is void.  Unless the terms of the contract are understood then the Tribunal cannot give force and effect to the intention of the parties even where terms are implied by law.