Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. This is an appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) from a decision made in the Consumer and Commercial Division (CCD) of the NSW Civil and Administrative Tribunal (the Tribunal) under the Fair Trading Act 1987 (NSW).

2. In both the Tribunal and at the appeal proceedings, the applicant/appellant was represented by a director (Ms C Jackman) and the respondent was also represented by a director (Mr R Lambert). For the purposes of this decision, the submissions made by Ms Jackman and Mr Lambert are attributed to the appellant and the respondent respectively.

3. The appellant had engaged the respondent to provide a website. In the Tribunal proceedings, the appellant claimed that the website was incomplete and unfit for purpose. At first instance, the appellant sought a full refund, damages to rectify the website and loss of income, in the amount of $89,747.16.

4. The Tribunal took this to be a consumer claim within the meaning of s 79E of the Fair Trading Act 1987 (NSW) (FTA) for breach of the consumer guarantees under the Australian Consumer Law, specifically ss 54, 55, 60 and 61.

5. The Tribunal dismissed the claim on 22 May 2024.

6. The appellant lodged a Notice of Appeal on 15 November 2024.

7. For the reasons which follow, we have decided that the appellant has failed to establish that the Tribunal at first instance made an error on a question of law or that leave to appeal should be granted. As the Notice of Appeal was filed out of time, leave to extend time has not been granted and the appeal will be dismissed.

Proceedings in the Consumer and Commercial Division

Background

8. The matter was heard in the Tribunal on 20 May 2024. The applicant/appellant complained of delays on the part of the respondent in providing a functioning website that met her specifications. In January 2022, the respondent had first told her that he could provide a functioning website within four to six weeks. However, after one year, basic functions were not working and, in the appellant's view, there were fundamental issues across the entire site. In July 2023, the appellant said that she terminated the agreement because she was not happy with the design of the website. She subsequently engaged other contractors to help with that task.

9. In the Tribunal at first instance, the respondent contended that when the appellant had approached him in January 2022, he had told her that it would cost between $80,000 to $100,000 to provide a website like she had described. She had asked for a website at a lower cost and the respondent suggested it would be cheaper to purchase an existing template theme which would require a substantial amount of custom programming for her purposes. The respondent claimed the appellant had agreed and he commenced work on the project under various sub-projects. The final sub-project commenced in June 2023.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f2b509538a414ad828f40)

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