Franchises and Consumer Claims

The Consumer Claims Act (NSW) 1998 ("the Act") provides a cause of action, which is known as a consumer claim, to consumers together with a number of remedies. All consumer claims are based in contract, including an oral contract, LAC Lawyers points out.

A consumer claim is defined by the Act and covers a wide range of transactions. Similarly a consumer is defined and covers everyone from a natural person through to a company limited by guarantee to whom and by which goods are supplied or has agreed to supply goods or services whether under contract or not. Noteworthy, a person who claims to be a consumer is presumed to be one until the contrary is proved.

The Act also defines a supplier as a person who, in the course of carrying on, or purporting to carry on, a business, supplies goods or services. The act of supply is wide ranging and is also defined as is goods and services.

Jurisdiction over consumer claims is vested solely in the Consumer Trader and Tenancy Tribunal known as the CTTT. It is worthy of note that where the consumer claim relates to goods or services supplied more than three years before the date on which the claim was lodged the tribunal does not have jurisdiction. The amount for which a consumer claim may be brought is currently $25,000. The Act does not catch the supply of new motor vehicles used substantially for private purposes.

With any consumer claim there must be an application and it may be lodged electronically and different filing fees apply based on the amount involved. A consumer claim is made in the general division of the CTTT where the applicant has to prove the elements of their case based on the balance of probabilities.

Legal representation is restricted in the CTTT with legal representation not being permitted without leave of the tribunal. In the case of proceedings which are brought under the Strata Schemes and Management Act 1996 or the Community Land Management Act 1989 a party is automatically entitled to be represented in those proceedings.

An application may be made by a party for permission to be represented in any proceeding where those proceedings are to be heard in the Home Building Division and involve a claim or dispute for an amount exceeding $25,000; if the party is a body corporate and the body corporate is to be represented by one of its officers; if the party is a firm and the firm is to be represented by one of its partners; if the party is an incorporated association under the Association's Incorporation Act 1984 and the Association is to be represented by one of its officers; if the party is a government agency and is to be represented by an officer of that or any other government agency; where the other party is entitled to practice as a legal practitioner in NSW or elsewhere; where the other party is a government agency and the tribunal is of the opinion that the party would be placed at a disadvantage if not represented at the hearing; or where the tribunal is of the opinion that there are complex issues of law or fact.

Alternative Disputes Resolution is a cornerstone of this jurisdiction and the CTTT is required to attempt it before listing a matter for hearing. If ADR fails the tribunal will set dates by which each party is to file and serve its evidence. Once all the evidence is filed and served the tribunal will set a date for the formal hearing.

The tribunal has the power to make orders with respect to common money, goods, services, delivery, return or replacement. The tribunal may make both interim and ancillary orders. With ancillary orders these may be made where the tribunal considers it necessary for the purpose of enabling an order to have full effect.

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