NSW Australian Consumer Law NCAT Appeal - What next?

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dan76n

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25 February 2015
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A family member has just been awarded a replacement product with all expenses to be paid by the Vendor. The Vendor has now appealed and is using solicitors to deal with the issue. The item is worth around $5000 and the vendor is claiming improper use which the tribunal (NCAT) disagreed and also believes the item is faulty and was used correctly.

My questions are:
1: Would it now be a good idea to also seek legal representation as this hasn't been the case to date?
2: If legal representation is sought, can this cost be passed on to the vendor if they lose the appeal?
3: Would it be a good idea to get some kind of independent opinion on the actual product? If so where would you seek this? The product is a piece of furniture.

Any other help would be great as although to us it seems an open and shut case, I'm concerned the vendor's solicitor may find a loop hole that the average consumer may not know how to defend against under Australian Consumer Law.
 

Rod

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What jurisdiction/tribunal/court is hearing the appeal?
 

Tim W

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Appeal from NCAT is to the NCAT Appeal Panel in the first instance.
It's not open slather though - there are ifs and buts and conditions attached to being able to appeal.

To answer your questions one at a time....

1: Would it now be a good idea to also seek legal representation as this hasn't been the case to date?
Yes. Sadly, where there is one lawyer, there almost always has to be another.

2: If legal representation is sought, can this cost be passed on to the vendor if they lose the appeal?
As a general thing, each party in an NCAT proceeding pays its own costs. There is provision for costs orders but you should speak to your lawyer about the details.
Understand that you will probably not come out of this not-out-of-pocket to some extent.

3: Would it be a good idea to get some kind of independent opinion on the actual product? If so where would you seek this? The product is a piece of furniture.
That's a question about evidence, and is something to ask your lawyer.

Any other help would be great as although to us it seems an open and shut case, I'm concerned the vendor's solicitor may find a loop hole that the average consumer may not know how to defend against.
Contrary to the popular myth, there are very few "loopholes" and even fewer "legal technicalities" of the kind shock jocks rant about. But it's a lawyers job to identify and invoke as many of the lawful pathways as it takes. Refer to my answer to question 1.
 

Rod

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The good thing about tribunals is they are much more forgiving on self representation and not as technical in operation as courts. Speak to them about when cost orders are likely to be issued, and under what conditions you may be granted costs.

If you feel confident, then self represent again.

Have you seen their appeal yet? What misuse are they alleging? And how is this different to the original case?

Generally parties do not get to have a 'second bite of cherry' unless there has been some kind of error in the original case. What error are they saying has happened?

As for the product being 'furniture', look around online for product reviews from customers and also product reviews in trade magazines.

You need to mindful of not spending more than the product is worth trying to defend your case.
 

dan76n

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25 February 2015
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They have sent an email requesting a written statement From the tribunral explaining the reasons for the decision.
Then they will lodge their appeal.

So basically they may not even be able to lodge an appeal?
 

Rod

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correct.