This guide is to assist you in applying to the CTTT.

Also see Fact Sheet: Maths programs and loans .

What you need to know:

1. You have a dispute with two companies:

a. The company that sold you the maths software (the supplier)
b. The company that gave you the loan (the credit provider)

You must deal with both contracts (with the supplier and the credit provider) to make sure your whole dispute is resolved.

2. The relevant laws:

a. Consumer Claims Act (NSW)
b. The Consumer Credit Code
c. The Fair Trading Act (NSW)

3. To apply to two divisions of the CTTT:

a. Against the supplier – the General Division
b. Against the credit provider – the Commercial Division

The applications should be lodged at the same time and joined so they are heard together.

Preparing to apply to the CTTT

Step 1 – download application forms for the General Division and the Commercial Division at www.cttt.nsw.gov.au

Step 2 – write down what happened when you got the contracts. This will help you work out what your dispute is. Some questions to answer as a guide to writing your statement are:

1. How did you get in contact with the sales company? Did you enter a competition or were you called at home?

2. When the sales person came to your home:

a. When did s/he arrive?
b. When did s/he leave?
c. Who was there?
d. What did s/he say?

3. What did the salesperson say about the product? What were the benefits supposed to be? How would it work?

4. How did the sales person explain the loan contract?

5. What did you say to the sales person about your children’s needs, your financial circumstances?

6. Was the product installed after the cooling off period expired?

7. Did you try to cancel the sales contract under the cooling off period?

For information on your rights under any cooling off period go to www.fairtrading.nsw.gov.au

Step 3 – complete applications to the CTTT

If the company that sold you the product is currently under administration or in liquidation, you should seek legal advice before proceeding to the CTTT.

A) General Division

This application is against the supplier. To work out who the supplier is look at your sales contract.

Under the heading: What orders do you want?
Tick the box
[] I want an order I don’t owe $___ [being the amount you paid for the software on the sales contract]

Under the heading: Why do you want these orders?
You need to summarise the reasons for your dispute.

There are a number of factors that the CTTT takes into consideration. Your reasons for requesting the orders should cover those factors (where relevant):

(a) whether or not there was any material inequality in bargaining power between the parties,

(b) whether or not any party was not reasonably able to protect their interest because of their age, physical or mental capacity,

(c) the relative economic circumstances, educational background and literacy of the person;

(d) whether or not and when independent legal or other expert advice was obtained,

(e) whether any undue influence, unfair pressure or unfair tactics were exerted on or used against you;

(f) the conduct of the parties to the claim in relation to similar transactions to which any of them has been a party;

(g) where the subject of the claim is a contract for the supply of goods or services:

(i) whether or not before or at the time when the contract was made its provisions were the subject of negotiation, and
(ii) whether or not it was reasonably practicable you to negotiate for the alteration of or to reject any of the provisions of the contract, and
(iii) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the claim, and
(iv) if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and
(v) the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not you understood the provisions and their effect, and
(vi) the commercial or other setting, purpose and effect of the contract.

Examples of claims:

1. A consumer entering the transaction when they had trouble understanding English, it was late at night and they did not understand the document they were signing.
 
2. A consumer is pressured into making a purchase, and told misleading statements about being able to cancel the purchase under a guarantee.

B) Commercial Division

This application is against the credit provider. To work out who the credit provider is check the loan contract.

Under the heading: What orders do you want?
Tick the boxes
    [] Consumer Credit Code       Sections 70, 71, 117, 119, 125, 144
    [] Fair Trading Act                Sections 40E, 40Q(2), 42, 44, 48, 68

Consumer Credit Code

Section 70: An order under s70(1) that the Tribunal reopen the credit contract on the grounds the contract is unjust within the meaning of s70(2). 

Section 71: An order the Tribunal

(a) reopen the transaction;
(b) relieve me of making a payment in excess of an amount as the Tribunal sees fit, having regard to the risk involved and the circumstances of the case;
(c) an order the Tribunal set aside wholly or in part the agreement;
(d) an order the Tribunal thinks fit to grant, and is justly due under the contract;
(e) an order that the goods subject to the contract be returned;
(f) the tribunal makes any ancillary order as it sees fit.

Section 117: A finding of fact that the credit provider is a “linked Credit Provider” within the meaning of s117, and the loan contract is a “Tied loan contract” or “tied continuing credit contract”.

Section 118: A finding of fact that the credit provider is liable for any misrepresentation made by the supplier.

Section 119: A finding of fact that the credit provider and supplier are jointly and severally liable for any loss suffered by the debtor in respect of any misrepresentation.

Section 125: An order that if the sales contract is terminated by order of the Tribunal under the Consumer Claims Act 1999, or terminated by any other law, that the credit contract is terminated and all payments made from the date of the termination be recovered. 

Section 144: An order that misleading and deceptive conduct was used to induce the debtor to enter into a finance contract.

Fair Trading Act

Section 40E: A finding of fact that the supplier did not provide written details of the statutory cooling off period.

Section 40Q(2): The goods supplied under the supply contract were not fit for their purpose. 

Section 42: An order that the supplier and the credit provider conduct was misleading and deceptive.

Section 44: An order the supplier and credit provider made false representations.

Section 48: An order that the supplier and credit provider offered gifts and prizes that they had no intention of providing.

Section 68(3): An order awarding the debtor damages or any other ancillary order that the Tribunal deems fit for the breaches of the Fair Trading Act.

Under the heading: Why do you want these orders?
You need to summarise the reasons for your dispute by outlining the circumstances of you entering in to the contracts.

What legal arguments could I use?

Consumer Credit Code

Unjust contract

Under s70(1) of the Code, a Court or Tribunal has the power to reopen unjust contracts at the time it was entered into or changed.  In deciding whether relief should be granted, the Court or Tribunal must first decide whether the contract (or its provisions), or the circumstances of entering into the contract are unjust. In so deciding, the Court or Tribunal must consider the public interest in consumer protection and the integrity of contracts, all circumstances of the case and may have regard to a variety of factors under s70(2). The factors possibly relevant to your circumstances are:

a. the consequences or results arising from the non-compliance with, or contravention of, any or all of the provisions of the contract;

b. whether or not there was any material inequality in bargaining power between the parties to the contract;

c. whether or not prior to or at the time the contract was made its provisions were the subject of negotiation;

d. whether or not it was reasonably practicable for the applicant to negotiate for an  alteration of the contract; 

e. whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with;

f. whether or not any party to the contract (other than a corporation) was not reasonably able to protect his or her interests because of age;

g. whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act;

h. the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect;

i. whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act by any other party to the contract;

j. the commercial or other setting purpose and effect of the contract;

k. whether the credit provider took any measures to ensure the party seeking relief understood the nature and implications of the transaction, and the adequacy of those measures;

l. whether at the time of the contract was entered into the credit provider knew, or could have ascertained by reasonable inquiry of the debtor that the debtor could not pay in accordance with its terms or not without substantial hardship;

m. whether the terms of the transaction or the conduct of the credit provider is justified in light of the risks undertaken by the credit provider;

n. the terms of other comparable transactions involving other credit providers and, and if the injustice is alleged to result from excessive interest charges, percentage rates;

o. any other relevant factor.  

The mere fact that one or more of the criteria listed is present does not automatically make a contract unjust. Hence, no single factor is determinative as to whether a contract is unjust; it is a matter of balancing all of the facts and circumstances of each transaction.

If you think the Sales Person acted in a manner that was unfair then you should include a complaint in relation to s70. The types of matters that may be unfair include:

1. Your ability to understand and comprehend English;
2.  Any opportunity you were given to read any contract; 
3. What explanation, if any, the Sales Person gave you in relation to the Credit Contract such as whether interest would be included;
4. Whether the Sales Person told you the Sales Contract and/or the Credit Contract could be cancelled; 
5. Your age, financial literacy, educational background
6. The time the Sales Person came to your house;
7. The length of time the Sales Person stayed in your home;
8. Your ability to service the debt and any inquiries the Sales Person made about your ability to make payments.

For example, did you tell the Sales person you were “unemployed”, or “a single mother on a Pension”, or you had other debts such as mortgages and credit cards. Did that Sales Person ask you whether you had any other debts or expenses?  

Did the sales person engage in any unfair tactics, making promises that you subsequently found to be untrue? 

Did the product look or sound substantially different from the demonstration you received in your home?

The law under s70 is largely replicated under the Fair Trading Act 1987 s43. When making an application in the Consumer Trader and Tenancy Tribunal you should rely on s70, but you may also want to include s43 of the FTA as well.

Misleading and deceptive conduct s144 and s119

If the Sales Person verbally told you or made certain guarantees as to the suitability of the program, the ease of how the Product works, or in relation to the Credit Contract which you relied on and you later found out to be wrong, misleading, or false you may be able to claim under ss 119 and 144 of the Code.

“119 Right to damages under sale contract against both supplier and linked credit provider (cf. Trade Practices Act 1974 (Cwlth) s 73)

(1) General right to damages. If-- 

(a) a supplier supplies goods, or causes goods to be supplied, to a linked credit provider of the supplier and a debtor enters into a contract with the linked credit provider for the provision of credit in respect of the supply by way of sale of the goods to the debtor; or

(b) a debtor enters into a contract with a linked credit provider of a supplier for the provision of credit in respect of the supply by the supplier of goods or services, or goods and services, to the debtor;

and the debtor suffers loss or damage as a result of misrepresentation, breach of contract, or failure of consideration in relation to the sale contract, the supplier and the linked credit provider are, subject to this Division, jointly and severally liable to the debtor for the amount of the loss or damage, and the debtor may recover that amount by action in accordance with this section in a court of competent jurisdiction.”

The provision provides a consumer a general right to damages against both the Supplier and the Credit Provider where the consumer suffers loss as a result of a misrepresentation, breach of contract, or a failure of consideration. “loss or damage” could be characterised as the loss attributable to entry into the sales contract and the loan contract, which could amount to payments already been made under a loan contract.

The provision in s144 states

"A person must not make a false or misleading representation in relation to a matter that is material to the entry into a credit contract or a related transaction."

Fair Trading Act

Applicability of the Fair Trading Act 1987 (NSW) (“FTA”) to the Tribunal proceedings

Sections 11A and 68 of the FTA provide that the Tribunal has jurisdiction to hear matters arising under the FTA.

Under section 68 of the FTA you are entitled to claim compensation for their loss or damage arising from breaches of the FTA by a person, business or company where the contract was entered into in NSW.

The Tribunal has jurisdiction to hear a claim under the FTA because your loss or damage arises in connection with a matter that is the subject of proceedings in the Tribunal, a claim under the Code including ss 70, 117, 119, 144 or s125 or the Consumer Claims Act s6.

You must make the FTA claims in addition to claims under the Code; otherwise the Tribunal cannot look at the matter. You cannot just claim under the FTA.

Cooling off Period s40E FTA

Under the Direct Commerce Provisions of the Fair Trading Act a consumer must be informed of their right to cancel the direct commerce contract (s40E), and the manner in which the right may be exercised. For a contract that is made in the presence of the dealer and the consumer, the information must be in writing.

Check that your sales contract states that you had a right to cancel during the cooling off period, and the manner of cancellation to described in sufficient detail. 

Questions

• Did you try to cancel under the cooling off period?
• How did you? What was the response?
• Did the sales person tell you about the cooling off period?
  

It is arguable, that a sales person should also tell the consumer about the right to cancel the contract in the cooling off period, even if it is included in the contract.

For more information see www.fairtrading.nsw.gov.au

Fitness for Purpose s.40Q(2)

Under s40Q(2) of the FTA, where the consumer expressly or by implication makes known to the supplier of the purpose for which they have purchased the goods from the supplier, there is an implied condition that the goods supplied under the sale contract are “reasonably fit for that purpose.”

Questions to consider

• What did you tell the Sales Person that you would be using the Product for?
• Who was going to use the Product, did they have any special needs, were they of a certain age or capacity?
• Did you rely on the Sales Person exercising his/her skill and judgement in recommending the Product in your circumstances? 
  

It is central that there is some sort of disclosure to provide the Supplier an opportunity to exercise skill and judgment in making or selecting goods, therefore the purpose must be stated with sufficient particularity.

False Representation s.44

Did the Sales Person tell you something, which you later found out to be untrue?

44 False representations

A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a) falsely represent that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use,

(b) falsely represent that services are of a particular standard, quality, value or grade,

(c) falsely represent that goods are new,

(d) falsely represent that a particular person has agreed to acquire goods or services,

(e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have,

(f) represent that the person has a sponsorship, approval or affiliation the person does not have,

(g) make a false or misleading representation concerning the price of goods or services,

(h) make a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods,

(i) make a false or misleading representation concerning the place of origin of goods,

(j) make a false or misleading representation concerning the need for any goods or services,

(k) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy,

Possible conduct that may contravene this section is:

a. A representation that you would get a free gift if you entered the  contract;
b. A representation that you would be provided a certain gift or service for free, that was subsequently not provided or not provided as offered;
c. Representations that you would receive free goods or services of a particular quality which you later did not receive. 

Examples of claims: 

1. The sales representative did not make any inquiry as to whether the purchaser could afford the repayments.

2. The sales representative promised the consumer a free lap top if they entered into the sales contract and finance contract, and then on installation only provided a desk top computer.

What if the credit provider has commenced action against me in Court?

Get legal advice.

The above arguments can also be used as a defence.

You may be able to have the matter transferred to the CTTT. Get advice on how to do this.

Need some more help? For a list of additional resources, click here.