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[2020] FCA 1672
mixed. One representation contravened ss 18 and 29(1)(m) of the ACL; three RVs subject to major failure entitling rejection; no unconscionable conduct under s 21. Parties to confer on remedies costs and...
The Federal Court ruled that three of four Jayco RVs had serious manufacturing defects that counted as major failures under consumer law. This meant the buyers could demand their money back or a new vehicle from the dealer who sold it to them. Jayco the manufacturer was not found to have acted unconscionably by pushing for repairs under its warranty instead of replacements or by referring buyers back to dealers. However one statement to one buyer wrongly suggested that only repairs were available under the warranty when the law allowed rejection for major problems. The decision stresses that manufacturers and dealers have separate duties under the Australian Consumer Law and that complex items like caravans allow some leeway for fixable issues but not for repeated or serious ones that ruin usability. The case was only about liability with remedies to be decided later.
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The Australian Competition and Consumer Commission (ACCC) brought proceedings against Jayco Corporation Pty Ltd (Jayco Corp) alleging that it had engaged in unconscionable conduct in contravention of s 21 of the Australian Consumer Law (ACL) and had made false or misleading representations in contravention of ss 18 and 29(1)(m) of the ACL. The allegations arose out of Jayco Corp's handling of complaints from four consumers (Consumer MO, Consumer TB, Consumer JT and Consumer RH) concerning manufacturing defects in recreational vehicles (RVs) that each had purchased from independent Jayco dealers (Jayco Sydney, Jayco Newcastle or Jayco Canberra).
The RVs in question were a Jayco Swan Outback camper trailer purchased by Consumer MO for $27,990 in August 2013, a Jayco Expanda pop top purchased by Consumer TB for $38,916 in May 2013, a Jayco Expanda Outback pop top purchased by Consumer JT for $39,000 in August 2015, and a Jayco Journey Outback pop top purchased by Consumer RH for $47,000 in December 2014. Each consumer reported defects shortly after delivery. For Consumer MO these included misalignment of the roof and bumper bar, cracked brackets, poor joinery, and two collapses of the roof lifting mechanism in December 2013 and April 2014. For Consumer TB the defects centred on leaking through the hard bed lids, inconsistent mattress density, air-conditioner noise, delaminating ensuite walls and aluminium shavings inside the van. Consumer JT experienced leaking through the roof and bed lids, a chipped fibreglass panel, scratched bumper bar and detached reflectors. Consumer RH's primary complaint concerned misalignment of the pop-top roof, broken struts, holes in the canvas skirt and non-operative water tanks.
The consumers made repeated requests for refunds or replacement RVs, citing distress, ruined holidays and the significant sums paid. Jayco Corp responded by authorising warranty repairs under the Jayco warranty contained in the owner's handbook, referring consumers to their selling dealers for ACL remedies, and in some instances directing that the RVs be transported to its Dandenong factory for repair. Jayco Corp did not itself supply the RVs to the consumers; that was done by the independent dealers. The Jayco warranty provided that Jayco Corp would, at its sole discretion, repair or replace defective parts or the RV itself, but stated that its benefits were in addition to non-excludable rights under the ACL.
The ACCC's case was that Jayco Corp had considered the claims solely through the lens of its warranty obligations rather than the consumers' separate statutory rights against the suppliers under the ACL. It alleged that Jayco Corp had refused to exercise its discretion under the warranty to provide replacement RVs, had pressed that the only available remedy was repair, and had unfairly obstructed the consumers from obtaining refunds or replacements from the dealers to which they were entitled in the event of a major failure under s 260 of the ACL. The ACCC also alleged specific misleading representations to each consumer about their entitlements and Jayco Corp's role.
The proceeding was brought under the ACL as Schedule 2 to the Competition and Consumer Act 2010 (Cth). Murphy J ordered that liability be heard separately from relief. The trial occupied 24-26, 29-31 July and 6 August 2019 with final submissions on 16 August 2019. Wheelahan J delivered judgment on 20 November 2020, finding that three of the four RVs had manufacturing defects resulting in a major failure to comply with the guarantee of acceptable quality under s 54 of the ACL, that three consumers were entitled to reject their RVs, that one representation to one consumer contravened ss 18 and 29(1)(m), but that Jayco Corp's conduct was not otherwise unconscionable under s 21. The parties were ordered to confer on the future conduct of the proceeding including remedies and costs, with a case management hearing fixed for 4 December 2020. The judgment runs to 862 paragraphs and contains a detailed chronological analysis of each consumer's dealings with Jayco Corp and the dealers.
Wheelahan J's reasoning is grounded in the text, context and purpose of the ACL. His Honour first set out the statutory scheme, noting that prior to 1 January 2011 the Trade Practices Act implied terms as to merchantable quality and fitness for purpose that sounded in contract, whereas the ACL consumer guarantees arise by force of statute and provide direct remedies against both suppliers and manufacturers ([13]-[21]). The guarantees of acceptable quality (s 54), fitness for disclosed purpose (s 55) and compliance with express warranties (s 59) were central. Remedies against suppliers for major failures include rejection and election between refund and replacement (ss 259(3), 263(4)). A major failure is defined in s 260, with the reasonable consumer test in s 260(a) recruiting an objective standard assessed at the time of supply but informed by hidden defects known at trial ([36]-[43]).
For each consumer the court examined the primary facts, which were largely undisputed, before determining whether the defects amounted to a major failure. In Consumer MO's case the court found that the cumulative effect of poor workmanship, repeated roof collapses, cracked corner mouldings and other defects meant that the RV would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure, particularly given the price of $27,990 and the impression conveyed by Jayco's brochure ([196]-[199]). Similar reasoning applied to Consumers TB and JT, where leaks affecting habitability, delaminating walls and repeated unsuccessful repairs exceeded the tolerance a reasonable consumer would have for complex goods such as RVs ([379], [500]). For Consumer RH the evidence did not establish a major failure; the roof misalignment was assessed as repairable and the court was not satisfied that the reasonable consumer test was met on the material before it ([588]).
On unconscionable conduct the court applied the judicial technique from Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118, requiring scrutiny of the exact relations between the parties with regard to every connected circumstance ([654]). The statutory norm in s 21 is not limited by the unwritten law (s 21(4)(a)) and is informed by the values and norms of the ACL itself, including the separate obligations of manufacturers and suppliers ([712]-[725]). Jayco Corp's conduct was assessed against the background that it was not the supplier and had no direct liability to refund the purchase price or replace the goods; that liability lay with the dealers under ss 259 and 263. Jayco Corp's warranty was enforceable as a statutory guarantee under s 59 but did not diminish the ACL guarantees. The court found that Jayco Corp had acted in good faith, had referred consumers to dealers for ACL remedies, and had not obstructed the exercise of statutory rights. Its assessments under the warranty were not shown to lack good faith or to be arbitrary ([858]-[860]).
One representation to Consumer RH in an email of 5 May 2015 stating that the warranty was for repairs only was held to misrepresent the effect of ACL rights and to contravene ss 18 and 29(1)(m) ([652]). Other alleged representations were either not made or did not convey the pleaded misleading meaning when read in context. The judgment emphasises that the ACL creates a coherent scheme of overlapping but distinct obligations; it is not unconscionable for a manufacturer to insist on its warranty rights or to refer consumers to the supplier where the legislation places primary liability on the supplier ([858]).
Before the ACL the Trade Practices Act 1974 (Cth) implied terms as to merchantable quality and fitness for purpose into consumer contracts for the sale of goods. Those terms had their genesis in the Sale of Goods Act 1893 (UK) but were developed by the Trade Practices Act beyond their 19th-century origins. A claim for breach was a claim in contract (Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; 203 CLR 136 at [8]-[9]). The Trade Practices Act also created direct statutory liability in a manufacturer to compensate a consumer for loss or damage where goods were not of merchantable quality or fit for purpose (ss 74A-74G, now repealed).
The ACL, introduced as Schedule 2 to the Competition and Consumer Act by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth) with effect from 1 January 2011, replaced the implied terms with statutory guarantees that arise by force of statute rather than contract. The consumer guarantee provisions are broadly similar to those in the Consumer Guarantees Act 1993 (NZ) and draw on elements of the Consumer Products Warranties Act 1978 (Sask) and the Sale of Goods Act 1979 (UK) ([14]). The guarantees of acceptable quality (s 54), fitness for purpose (s 55), supply by description (s 56) and compliance with express warranties (s 59) are not excludable (ss 64, 64A). Remedies against suppliers for major failures include rejection and election between refund and replacement (ss 259(3), 263(4)). Manufacturers have direct liability in damages for certain failures (s 271) and must indemnify suppliers in defined circumstances (s 274).
After the ACL the law places greater emphasis on the expectations and rights of consumers rather than merchants (Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323 at 348, citing Rogers v Parish (Scarborough) Ltd [1987] QB 933). The judgment notes that the reasonable consumer construct in ss 54 and 260 draws on principles developed around the condition of merchantable quality but is differently expressed and must be applied to the ACL text in its context ([24], [37]). The decision reinforces that a manufacturer's warranty does not diminish ACL guarantees but exists alongside them, and that the statutory scheme requires coherence between manufacturer and supplier obligations ([712]-[725]). The judgment has not altered the statutory text but has elucidated the application of the major-failure test to complex manufactured goods such as RVs and the interaction between warranty processes and ACL rights.
Paragraph [36] contains the statutory definition of major failure: "A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; ..." In plain English this means that if a reasonable person who knew exactly what was wrong with the product would not have bought it in the first place, the failure is major and the buyer can reject the goods and choose a refund or replacement. The court applied this test to the cumulative defects in the three successful cases, finding that leaks, collapses and poor build quality affecting habitability met the threshold.
At [654] the judgment describes the judicial technique for unconscionability: "The judicial technique in determining whether conduct was, in all the circumstances, unconscionable ... involves a scrutiny of the exact relations established between the parties with regard to every connected circumstance" (citing Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118). This translates to: the court must look at the whole picture of the relationship, not just isolated events, and decide whether the conduct feels wrong according to accepted standards of fair dealing. The court used this technique to evaluate Jayco Corp's warranty-focused responses and found them not to be against conscience.
Paragraph [41] explains the tolerance of the reasonable consumer: "The reasonable consumer will accept that the process of production of certain complex goods, such as RVs, can never be perfect. ... The reasonable consumer will purchase an RV accepting that there is a reasonable prospect that some components of the RV may have to be adjusted, repaired, or replaced within a manufacturer's warranty period." In plain English, buyers of caravans know that some teething problems are inevitable, but if the problems pile up and ruin the product's usefulness the law steps in. This informed the finding that the defects in three RVs exceeded acceptable limits.
At [69] the court sets out the opening words of the Jayco warranty: "Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure." This is the exact text prescribed by reg 90 of the Competition and Consumer Regulations 2010 (Cth). The plain-English translation is that the warranty adds to, and cannot cut down, your legal rights under the ACL. The court held that this wording was sufficient to draw consumers' attention to their ACL rights.
The precedent is triggered where a manufacturer of complex consumer goods such as RVs responds to complaints of manufacturing defects by insisting on repair under its warranty while the defects cumulatively render the goods substantially unfit for their common purpose or such that a reasonable consumer fully acquainted with the nature and extent of the defects would not have acquired them. The judgment makes clear that RVs are hand-assembled from many components, are subject to stresses from towing and weather, and that the reasonable consumer has a degree of tolerance for minor defects that can be remedied within a reasonable time ([38]-[43]). However, where defects include repeated roof collapses, persistent leaks affecting habitability, poor joinery, cracked mouldings and failure to repair within a reasonable time, the cumulative effect may amount to a major failure under s 260(a) or (c) ([196], [379], [500]).
The precedent also applies where a manufacturer makes representations to a consumer that the only remedy available is repair when a major failure has occurred, or that the manufacturer has no role in the provision of a refund by the supplier. Such representations will contravene ss 18 and 29(1)(m) if they misstate the effect of ACL rights ([652]). The judgment emphasises that the statutory scheme creates separate obligations on suppliers (to remedy or refund/replace for major failures) and manufacturers (to comply with express warranties and indemnify suppliers in defined circumstances). Conduct that obstructs a consumer's direct rights against the supplier without good reason may be unconscionable, but a bona fide assessment under a manufacturer's warranty that does not obstruct those rights is not ([858]-[860]).
Fact patterns that do not trigger the precedent include isolated minor defects that are easily and promptly repaired, user-error contributions to the problem, or a manufacturer's good-faith referral of the consumer to the supplier for ACL remedies. The judgment notes that the reasonable consumer accepts that production of complex goods is imperfect and that some adjustments may be required ([41]). Where a manufacturer has developed a fix for a known issue (as with the 2015 Expanda bed-lid leak) and offers to implement it, that will ordinarily be consistent with acceptable commercial behaviour.
The judgment cites and applies a number of earlier authorities that continue to shape the law. Jenyns v Public Curator (Qld) (1953) 90 CLR 113 at 118 is applied at [654] for the proposition that unconscionability requires scrutiny of the exact relations between the parties with regard to every connected circumstance. That technique has been followed in subsequent cases examining all the circumstances, including the statutory scheme of the ACL. Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 is cited at [3] for the proposition that unconscionable conduct may be alleged in relation to identified individuals rather than a system of conduct. The Lux approach to deceptive conduct in direct sales has been applied in later regulator cases.
Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; 258 CLR 525 is cited at [58] and informs the evaluation of statutory unconscionability. The High Court's emphasis on the statutory text and community standards of acceptable commercial behaviour is reflected in the judgment's rejection of the ACCC's claim. Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 is cited at [590] for the principles applicable to assessing whether conduct is misleading or deceptive. The objective reasonable consumer test from that case and from Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; 202 CLR 45 (cited at [597]) is used to assess both the major-failure question and the misleading-representation claims.
Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 is cited at [27] for the proposition that the reasonable consumer may be acquainted with information known at trial when assessing hidden defects under s 54(2). Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426; 362 ALR 702 is cited at [25] and [49] for the interpretation of acceptable quality and the rejection period. These authorities have been treated as guiding the application of the ACL to complex manufactured goods. The judgment's analysis of the interaction between manufacturer's warranties and ACL guarantees has been cited in later cases concerning the coherence of the statutory scheme. No later court has overruled any aspect of the decision; it is treated as correctly stating the law on the major-failure test for RVs and the limits of unconscionability claims against manufacturers who act in good faith under their warranties.
The judgment leaves open the precise degree of tolerance that the reasonable consumer has for defects in complex goods such as RVs. While it states that some tolerance exists because RVs are assembled from many components and are subject to stresses ([38]-[43]), the point at which cumulative minor defects become a major failure remains a question of fact and degree that will be answered case by case. The court noted that whether a reasonable consumer would acquire the goods despite knowing of the failure depends on the nature of the defect, the price, the manufacturer's representations and other circumstances ([43]).
Another open question is the extent to which a manufacturer's knowledge of a recurring design defect (such as the 2015 Expanda bed-lid leak known by December 2013) affects the assessment of acceptable quality or major failure. The judgment records that Jayco Corp was aware of cracking corner moulds by December 2013 ([192]) but does not decide whether that knowledge alone would render subsequent supplies of the same model non-compliant with the guarantee of acceptable quality. Later courts will need to consider whether widespread knowledge of a defect that is not easily remedied alters the reasonable consumer's expectations.
The interaction between a manufacturer's warranty discretion to repair or replace and a consumer's ACL right to reject for major failure also remains partially open. The judgment holds that it is not unconscionable for a manufacturer to insist on repair where the failure is not major and the warranty so permits, but does not decide the position where a manufacturer knows that a failure is major yet refuses to facilitate a refund or replacement by the supplier. The court emphasises the coherence of the statutory scheme but leaves for future cases the precise limits of a manufacturer's obligation to avoid obstructing a consumer's direct rights against the supplier.
The judgment does not resolve the evidentiary burden on a regulator seeking to prove that a manufacturer has exercised effective control over a dealer's ACL compliance. The ACCC's failure to prove such control was fatal to its unconscionability case, but the precise circumstances in which such control might be inferred remain open. Finally, the quantum of remedies, including any pecuniary penalty for the single misleading representation, was left for a separate hearing. The weight to be given to the manufacturer's good-faith warranty process in penalty assessment is therefore still to be determined.
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Dates of hearing: 24, 25, 26, 29, 30 and 31 July, and 6 August 2019
National Practice Area: Commercial and Corporations
Sub Area: Regulator and Consumer Protection
Counsel for the Applicant: Mr M Osborne QC with Ms C Van Proctor
Solicitor for the Applicant: Corrs Chambers Westgarth
Counsel for the Respondent: Mr N O'Bryan SC with Mr D Clough
BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND: JAYCO CORPORATION PTY LTD Respondent
JUDGE: WHEELAHAN J DATE OF ORDER: 20 NOVEMBER 2020
WHEELAHAN J: Part 1: Overview [1] Part 2: Summary of conclusions [11] Part 3: The Australian Consumer Law (ACL) [12] Broad outline [13] Statutory guarantees [22] Acceptable quality [23] Fitness for purpose [28] Express warranties [30] A consumer's remedies against a supplier [34] A consumer's remedies against a manufacturer [53] A supplier's remedies against a manufacturer [56] Liability may not be excluded by contract [57] Unconscionable conduct [58] Misleading or deceptive conduct [62] False or misleading statements in connection with the supply of goods [64] Part 4: The Jayco warranty and owner's handbook [67] Part 5: The parties' concise statements [81] The concise statement of the ACCC [82] The concise statement of Jayco Corp [85] Disputes as to the scope of the ACCC's pleaded case [89] Part 6: The witnesses [98] Part 7: The four Consumers' RVs [113] (1) Consumer MO [113] Purchase and delivery of the RV [113] Initial concerns with the RV [116] First trips around September 2013 and concerns raised with Jayco Sydney [118] Christmas 2013 school holidays - trip to Glen Allen and the first roof collapse [121] January 2014 - concerns raised with Jayco Sydney [122] February 2014 - concerns raised with Jayco Corp [124] March 2014 - Jayco Sydney assessment of the RV [130] Jayco Corp evidence about Mr Gregorovic [142] April 2014 - RVGO assessment of the RV [143] April 2014 - second roof collapse [146] April 2014 - conversation between Consumer MO and Mr Bilbija of Jayco Sydney at the Rosehill caravan show [148] Jayco Corp's consideration of the Jayco Sydney and RVGO repair work quotations [155] July 2014 - Jayco Sydney repair work [167] August 2014 - return of the RV and Consumer MO's further concerns [169] August 2014 - further repair work by Jayco Sydney [177] Consumer MO's later concerns with his RV [180] Consideration - defects in Consumer MO's RV [181] Was Consumer MO entitled to reject the RV? [193] (2) Consumer TB [201] Purchase and delivery of the RV [201] May 2013 - initial concerns with the RV [205] June 2013 - Jayco Sydney repair works [225] July 2013 - trip to Queensland [233] November 2013 - Jayco Canberra repair works [235] February-March 2014 - correspondence with Jayco Canberra and Jayco Corp [237] March 2014 - Jayco Canberra repair works [256] April to May 2014 - Jayco Canberra repair works [259] June 2014 - Jayco Canberra repair works [262] July 2014 - trip to Nelson Bay, Caravan Wizard repair works, and correspondence with Jayco Corp and Jayco Sydney [271] July 2014 - further Jayco Canberra warranty claim [282] August 2014 - Jayco Sydney repair works [283] August to September 2014 - Jayco Sydney repair works [325] August to September - Fair Trading complaint and correspondence [333] September to November 2014 - Jayco Corp Dandenong factory repair works [339] Subsequent use and sale of the RV [367] Consideration - defects in Consumer TB's RV [369] Was Consumer TB entitled to reject the RV? [376] (3) Consumer JT [382] Purchase of the RV [382] Pre-delivery check and repairs to the RV [385] Delivery of the RV and Consumer JT's initial concerns [386] 3 September 2015 - online survey [391] 3-4 September 2015 - emails to Jayco Sydney [393] September 2015 - Jayco Sydney repair works [397] September 2015 - Jayco Sydney correspondence with Jayco Corp. [400] 22 December 2015 - telephone conversation with Mr Manning of Jayco Corp [401] Early January 2016 - trip to Ulladulla [405] Early 2016 - request for extras from Jayco Sydney [414] Mid to late January 2016 - correspondence with Jayco Sydney [415] Telephone conversation with Jayco Corp [430] January to February 2016 - Jayco Sydney assessment and preparation for repair works [432] January to February 2016 - Fair Trading complaint [450] February 2016 - meeting with Mr Holman [452] February 2016 - Jayco Corp bulletin with fix for the 2015 model Expanda bed lid leak issue [458] February - March 2016 correspondence [462] February - April 2016 Jayco Sydney repair works [474] April 2016 - return of Consumer JT's RV [481] April 2016 - further leak and proposed trade-in transaction [486] Subsequent use of the RV [491] Consideration - defects in Consumer JT's RV [493] Was Consumer JT entitled to reject the RV? [495] (4) Consumer RH [501] Purchase of the RV [501] Pre-delivery check and repairs to the RV [506] Delivery of the RV [509] Proper method for raising the roof of the RV [511] Consumer RH's alleged initial concerns with the RV [514] February 2015 - Jayco Newcastle repair work [519] March 2015 - Jayco Newcastle repair work [521] April 2015 - Jayco Newcastle deferred repair work [528] May 2015 - Queensland trip and correspondence with Jayco Corp and Jayco Newcastle [530] Roof issue and 4 May 2015 Mak's Mechanical and Onsite Caravan repair works [531] Further roof issue and 7 May 2015 Bundaberg Caravan Repairs repair works [539] May 2015 - further correspondence with Jayco Newcastle and Jayco Corp [557] Mid-2015 - Fair Trading complaint [572] 10 July 2015 - Consumer RH traded in her RV to Jayco Newcastle for a used Jurgens RV [574] Subsequent repair works [577] Consideration - defects in Consumer RH's RV [579] Was Consumer RH entitled to reject the RV? [584] Part 8: Alleged contraventions of ss 18(1) and 29(1)(m) of the Australian Consumer Law [589] The operation of ss 18 and 29(1)(m) of the ACL [590] The representations which the ACCC alleges Jayco Corp made to Consumer MO [602] The representations which the ACCC alleges Jayco Corp made to Consumer TB [621] The representations which the ACCC alleges Jayco Corp made to Consumer JT [641] The representations which the ACCC alleges Jayco Corp made to Consumer RH [645] Part 9: Unconscionable conduct [653] The operation of s 21 of the ACL [654] The ACCC's pleaded claims of unconscionable conduct [684] The submissions of the ACCC [687] The submissions of Jayco Corp [702] The matrix of statutory rights and obligations [712] How did Jayco Corp address requests for repairs, refunds and replacements? [726] Jayco Corp witnesses' understanding the operation of the ACL [738] Requests for replacement RVs or refunds [747] Jayco Corp's role generally in the decision of a dealer whether to replace an RV or to refund the purchase price [758] The practices of the two Jayco dealers in relation to decisions whether to replace an RV or to refund the purchase price [780] The practices of Jayco Sydney [781] The practices of Jayco Newcastle [786] The ACCC's claims in relation to Jayco Corp's practices [790] The ACCC's claims of unconscionable conduct by Jayco Corp in relation to the four Consumers [797] Consumer RH [798] Consumer MO [804] Consumer JT [821] Consumer TB [841] Part 10: Some final observations [858] Part 11: Conclusions [861]
Part 1: Overview 1 The respondent, Jayco Corporation Pty Ltd (Jayco Corp), is a manufacturer of caravans, campervans, camper trailers, and other recreational vehicles. I will refer to all such vehicles as RVs, which was the term adopted by the parties during the course of the trial. 2 Jayco Corp manufactured RVs at its factory in Dandenong, Victoria. Jayco Corp then supplied new, manufactured RVs to Jayco dealers, which then supplied them to consumers. The supply of the RVs to consumers was the subject of statutory guarantees and rights under the Australian Consumer Law (ACL), which is Schedule 2 to the Competition and Consumer Act 2010 (Cth). There are three Jayco dealers which are relevant to the facts in issue in this proceeding: Jayco Sydney, Jayco Newcastle, and Jayco Canberra. Each of those dealers is operated by a company that is independent of Jayco Corp, and is an independent business. However, each of the dealers adopted to some extent the Jayco name and style as part of its get-up. 3 The applicant, the Australian Competition and Consumer Commission (ACCC), alleges that Jayco Corp engaged in unconscionable conduct and misleading or deceptive conduct, and made false or misleading representations to four consumers, Consumer MO, Consumer TB, Consumer JT, and Consumer RH (the Consumers) in connection with dealings by each of them with Jayco Corp in relation to claimed defects in their RVs. The ACCC's allegations of unconscionable conduct were pleaded and maintained at the hearing by reference to the conduct of Jayco Corp in relation to the four Consumers. While there were some common components of the ACCC's case in relation to the four Consumers, the ACCC did not allege that Jayco Corp engaged in a system of conduct, or a pattern of behaviour: cf, ACL, s 21(4)(b); Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; 266 FCR 631 at [104]; Australian Competition and Consumer Commission v Ford Motor Company of Australia Ltd [2018] FCA 703; 360 ALR 124 at [26]. 4 The conduct of Jayco Corp is alleged to have arisen in connection with claims by the Consumers that the RVs acquired by them contained defects such as to entitle them to a refund of the purchase price, or replacement goods, pursuant to rights under the ACL. The supply of the RVs to each of the Consumers was the subject of a written warranty by Jayco Corp in relation to any defects in the RVs. The terms of the Jayco warranty are important. The terms were contained in a handbook that was supplied with each RV. The parties accepted that the warranty had contractual force and arose by way of a collateral contract between Jayco Corp and each of the Consumers, the consideration for which was the purchase by the consumer of an RV from a Jayco dealer. As I discuss later, the Jayco warranty was also enforceable under statute. 5 The issues in this proceeding concern the interaction between Jayco Corp's obligations under the Jayco warranty, and the Consumers' statutory entitlements under the ACL against the suppliers of the RVs. The ACCC alleges that in respect of each of the four Consumers, there were manufacturing defects in the RV that he or she acquired which were of a character that, under the ACL, entitled the Consumers to a refund of the purchase price or a replacement vehicle from the supplier of the RV, which in each case was a Jayco dealer. The relevant Jayco dealers are not parties to this proceeding. The ACCC alleges that Jayco Corp considered the Consumers' claims about defects in their RVs against its obligations under the Jayco warranty rather than with full reference to the Consumers' rights under the ACL, and thereby engaged in conduct that was unconscionable. That conduct is alleged to have involved - (1) refusing to exercise its discretion under the Jayco warranty to provide a replacement RV; (2) pressing the position that the only remedy available to the Consumers was repair; and (3) unfairly obstructing the Consumers from obtaining a refund or replacement RV from the Jayco dealer that sold the RV, to which they were entitled under the ACL. 6 The ACCC alleges that by its conduct, Jayco Corp caused harm to the Consumers in that they were deprived of the opportunity to obtain a refund or replacement RV, and that they suffered distress and frustration as a result of their inability to use their RVs and in failing to obtain proper redress. 7 The ACCC also alleges that Jayco Corp made false or misleading representations to the Consumers as to their entitlement to a remedy, and as to Jayco Corp's own role in relation to the Consumers' rights or ability to obtain a replacement RV, or a refund of the purchase price. 8 By its originating application, the ACCC seeks a range of remedies, including declarations, the imposition of pecuniary penalties under s 224 of the ACL, injunctions, a disclosure order pursuant to s 246 of the ACL, an order under s 239 of the ACL to redress loss or damage suffered by the Consumers, an order under s 246 of the ACL that Jayco Corp establish and maintain a compliance program, and finally an order under s 137H of the Competition and Consumer Act that sealed copies of the reasons for judgment and final orders in this proceeding be retained on the Court file. The ACCC's standing to bring the proceeding was not in issue. The ACCC has standing under s 228 of the ACL to institute a proceeding for the recovery, on behalf of the Commonwealth, of a penalty under s 224. It also has standing under s 232(2) to seek an injunction. And the court may make orders under ss 239 and 246 of the ACL on the application of the ACCC. 9 By an interlocutory order in this proceeding made by Murphy J on 26 April 2018, his Honour ordered that the question of liability in this proceeding be heard separately from the question of relief. These reasons concern questions of liability only. 10 In relation to the ACCC's case that Jayco Corp had engaged in unconscionable conduct in contravention of s 21(1) of the ACL, the ACCC submitted that it was a necessary part of its case that by reason of manufacturing defects in the RVs, each of the Consumers was entitled to reject the goods, and at his or her election to seek a refund of the purchase price, or a replacement RV. It is therefore necessary to consider in turn the circumstances of each of the four Consumers. The primary facts were, to a large degree, not in contest. The fact of, or content of some conversations was in issue, and I will identify any such conflicts, and make findings where appropriate. Although many of the primary facts were not in dispute, the conclusions, or the ultimate issues were fundamentally in dispute. The main issues to be resolved are as follows - (1) Did the RVs have manufacturing defects that led to a failure to comply with a statutory guarantee that was to be characterised as a "major failure" for the purposes of the ACL? (2) In consequence, were the Consumers entitled to reject the RVs and obtain a refund or a replacement RV? (3) Were the representations alleged by the ACCC made, and if so were they misleading or deceptive, or likely to mislead or deceive, or did they otherwise constitute false or misleading representations made in contravention of the ACL? (4) Was Jayco Corp's conduct, in relation to the claims made by the four Consumers, to be characterised as unconscionable for the purposes of s 21(1) of the ACL?
Part 2: Summary of conclusions 11 For the reasons that follow, I have concluded that - (1) three of the four RVs in question had manufacturing defects that resulted in a major failure to comply with a statutory guarantee; (2) three of the four Consumers were entitled to reject their RV, and to obtain a refund or a replacement RV from the supplier, being the selling dealer; (3) one representation made by an employee of Jayco Corp to one of the Consumers was made in contravention of ss 18 and 29(1)(m) of the ACL because it was misleading or deceptive, or likely to mislead or deceive, and was false or misleading; and (4) otherwise, Jayco Corp's conduct in relation to the claims made by the four Consumers was not to be characterised as unconscionable for the purposes of s 21(1) of the ACL.
Part 3: The Australian Consumer Law (ACL) 12 The full statutory context in which the ACCC alleges that Jayco Corp engaged in contravening conduct is significant. It is necessary to have regard to the legislative context, in broad outline, before referring to the relevant provisions in more detail.
Broad outline 13 Prior to 1 January 2011, the Trade Practices Act 1974 (Cth) implied into certain consumer contracts for the sale of goods mandatory terms relating to merchantable quality and fitness for purpose. Those implied terms had their genesis in the Sale of Goods Act 1893 (UK), but in many respects were developed by the Trade Practices Act beyond their 19th century origins. A claim for breach of those terms was a claim in contract: Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39; 203 CLR 136 at [8]-[9] (Gleeson CJ, Gummow and Hayne JJ). In addition, the Trade Practices Act created a direct statutory liability in a manufacturer to compensate a consumer for loss and damage in respect of goods supplied by the manufacturer for the purposes of re-supply, which were supplied to a consumer and which were not fit for purpose, or not of merchantable quality: Trade Practices Act, s 74A to s 74G (now repealed); and see, Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; 196 FCR 145 at [169]-[182]. 14 The ACL was introduced as Schedule 2 of the renamed Competition and Consumer Act by the Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth), and commenced on 1 January 2011. The ACL re-enacted several provisions of the Trade Practices Act, and introduced new provisions, such as those providing for consumer guarantees. The consumer guarantee provisions of the ACL are couched in terms that are broadly similar to the Consumer Guarantees Act 1993 (NZ): see the explanatory memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) at [7.9]. In turn, elements of the New Zealand legislation appear to have been inspired by the Consumer Products Warranties Act 1978 (Sask), and the Sale of Goods Act 1979 (UK), as then in force. 15 Under the ACL, the rights of a consumer against a supplier of goods or services no longer rest solely upon contract. Rather, the consumer guarantees under the ACL and the remedies for breach of those guarantees arise by force of the statute. The ACL provides for remedies against the supplier and the manufacturer of goods where the statutory guarantees are not complied with. Relevant to the present case are the following guarantees - (1) a guarantee that the goods will be of acceptable quality [s 54]; (2) a guarantee that the goods will be fit for purpose [s 55]; and (3) a guarantee that the manufacturer of the goods will comply with any express warranty given by the manufacturer [s 59]. 16 At a general level, and without being exhaustive, in respect of the consumer guarantees the ACL provides for the following remedies against a supplier of goods, against a manufacturer of goods, and as between a supplier of goods and a manufacturer. 17 In relation to a supplier - (1) a supplier of goods is liable to a consumer to remedy any failure of the goods to comply with the statutory guarantees of acceptable quality and fitness for purpose, and for damages for any foreseeable loss as a result of the failure [ss 259(2) and (4), 261]; and (2) where a failure is a "major failure", or a failure cannot be remedied, the consumer is entitled as against the supplier to reject the goods, and is entitled at the consumer's election to replacement goods, or to a refund of the purchase price [ss 259(3), 263(4)]. 18 In relation to a manufacturer - (1) a manufacturer is liable in damages to an "affected person" where the goods fail to comply with the statutory guarantee of acceptable quality [s 271(1)]; (2) a manufacturer has no direct liability under the ACL itself to repair or replace goods that do not comply with the statutory guarantee of acceptable quality; and (3) a manufacturer is liable in damages to an "affected person" for a failure to comply with the statutory guarantee that the manufacturer will comply with any express warranty given by it [s 271(5) and (6)]. 19 As between a manufacturer of goods and a supplier, a manufacturer is liable to indemnify a supplier if the supplier is liable to pay damages to a consumer for loss or damage and the manufacturer is or would be liable to pay damages to the consumer for the same loss or damage, and also if the supplier incurs costs because of its liability for failure to comply with the statutory guarantee of acceptable quality, or of fitness for certain disclosed purposes, or of correspondence with certain descriptions [s 274(1) and (2)]. 20 Separate from the consumer guarantees and the remedies flowing from any failure to comply with those guarantees, the ACL also includes more general prohibitions on engaging in proscribed conduct in trade or commerce. Section 18(1) prohibits a person from engaging in conduct that is misleading or deceptive, or is likely to mislead or deceive. Section 29(1) prohibits a person from making false or misleading representations about goods or services. Relevant to this proceeding, sub-section 29(1)(m) prohibits the making of such representations concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right or remedy, including the statutory consumer guarantees. And section 21(1) prohibits a person from engaging in conduct in connection with goods or services that is, in all the circumstances, unconscionable. I will return to consider these more general prohibitions. 21 In considering the application of those provisions outlined above to the present proceeding, it is helpful to note that, for the purposes of those provisions - (1) the RVs acquired by the Consumers were goods of a kind ordinarily acquired for personal, domestic or household use or consumption; (2) accordingly, each of the Consumers was a "consumer" within the meaning of that term in s 3 of the ACL; (3) in the case of each of the four RVs, a Jayco dealer was the "supplier" of the goods; and (4) Jayco Corp was the manufacturer of the goods.
Statutory guarantees 22 The statutory guarantees under Part 3-2, Division 1 of the ACL apply where a person in trade or commerce supplies particular goods to a consumer other than by sale by auction. A supplier of goods has a meaning that corresponds to the defined term supply, which includes in relation to goods, the supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase: s 2. A person acquires goods as a consumer if, inter alia, the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption: s 3(1)(b). It was not in dispute in this proceeding that each sale of an RV by the Jayco dealers to the four Consumers was a supply of goods to that consumer in trade or commerce.
Acceptable quality 23 Section 54 of the ACL provides for a guarantee that the goods are of acceptable quality. The meaning of "acceptable quality" is given content by s 54(2), (3), and (6) - (2) Goods are of acceptable quality if they are as: (a) fit for all purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. … (6) Goods do not fail to be of acceptable quality if: (a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and (b) they are damaged by abnormal use. 24 One must be cautious about comparing the extent to which the standard of acceptable quality under the ACL compares to the standard of merchantable quality under earlier or cognate legislation. The standards are differently expressed, and attention must be given to the text of the ACL having regard to its context and purpose. References to other legislation, and judicial formulations that are explanatory of other legislation, are liable to mask the nature of that task: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [92] (Hayne and Heydon JJ); Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127 (PC); (1968) 118 CLR 32 at 39. 25 Section 54 provides for a common standard of acceptable quality which goods are required to reach. It is necessary that goods have all the qualities referred to in s 54(2) in order to comply with the statutory standard: Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426; 362 ALR 702 (Vautin) at [142] and [144] (Derrington J). The standards under s 54(2) include that goods will be fit for all purposes for which goods of that kind are commonly supplied. This general standard of fitness for purpose is not dependent upon the consumer communicating any intended purpose to the supplier, or relying upon the supplier's skill or judgment. And, in relation to the general standard, it does not suffice that the goods will be fit for only some of those purposes. 26 The standard of acceptable quality in s 54(2) has as its reference point a construct, namely the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects of the goods. The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1]-[4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at 728 (Lord Radcliffe). 27 The hypothetical question whether the reasonable consumer would have regarded the quality of the goods as acceptable is to be determined at the time of supply. However, the reference in s 54(2) to hidden defects has the consequence that for the purposes of determining that question, the reasonable consumer may be acquainted with information known at the time of trial: cf, Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 at [70] (Branson J, Jacobson J agreeing). The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [95] (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.
Fitness for purpose 28 Section 55 of the ACL provides for a guarantee that the goods are reasonably fit for any disclosed purpose, or for any purpose for which the supplier represents that they are reasonably fit. The meaning of "disclosed purpose" is the subject of s 55(2) - (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). 29 There is some conceptual overlap between the statutory guarantees in s 54(1) and s 55(1) to the extent that any disclosed purposes or represented purposes that engage s 55(1) may also amount to common purposes for the objective standard of acceptable quality under s 54(2)(a): see, Jewson Ltd v Boyhan [2003] EWCA Civ 1030; [2004] 1 Lloyd's Rep 505 at [68], [71] (Clarke LJ), and at [77] (Sedley LJ).
Express warranties 30 In relation to express warranties, s 59(1) of the ACL provides for a statutory guarantee that the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods, and s 59(2) provides that the supplier of the goods will comply with any express warranty given or made by the supplier in relation to the goods. The term "manufacturer" is given an extended meaning by s 7 of the ACL, but that is not in issue in this proceeding because Jayco Corp was the manufacturer of the four RVs in the ordinary sense of that term. 31 Section 102 of the ACL authorises the prescription by regulation of requirements relating to the form and content of non-statutory warranties against defects, and mandates compliance with those requirements. A warranty against defects is defined by s 102(3) of the ACL as follows - (3) A warranty against defects is a representation communicated to a consumer in connection with the supply of goods or services, at or about the time of supply, to the effect that a person will (unconditionally or on specified conditions): (a) repair or replace the goods or part of them; or (b) provide again or rectify the services or part of them; or (c) wholly or partly recompense the consumer; if the goods or services or part of them are defective, and includes any document by which such a representation is evidenced. 32 In turn, reg 90 of the Competition and Consumer Regulations 2010 (Cth) prescribes requirements including that particular text must be included in a warranty against defects. During the period relevant to this proceeding, reg 90 was in the following terms - 90 Requirements for warranties against defects (1) For subsection 102(1) of the Australian Consumer Law, the following requirements are prescribed: (a) a warranty against defects must be in a document that is transparent; (b) a warranty against defects must concisely state: (i) what the person who gives the warranty must do so that the warranty may be honoured; and (ii) what the consumer must do to entitle the consumer to claim the warranty; (c) a warranty against defects must include the text mentioned in subregulation (2); … (h) a warranty against defects must state that the benefits to the consumer given by the warranty are in addition to other rights and remedies of the consumer under a law in relation to the goods or services to which the warranty relates. (2) For paragraph (1)(c), the text is 'Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure'. … 33 Sections 64 and 64A of the ACL have the effect that the consumer guarantees cannot be excluded, restricted, or modified by contract, and in the case of goods of a kind ordinarily acquired for personal, domestic, or household use, liability cannot be limited.
A consumer's remedies against a supplier 34 The remedies available to a consumer for failure to comply with the statutory guarantees are provided for by Part 5-4 of the ACL. Under Division 1 of that Part, a consumer has remedies against the supplier of the goods. 35 A supplier is liable to a consumer to remedy a failure to comply with a guarantee of acceptable quality or fitness for purpose within a reasonable time, or for compensation where the supplier refuses or fails to comply with the requirement to remedy the failure. If the failure to comply with the guarantee cannot be remedied, or is a major failure, the consumer may reject the goods. If the consumer rejects the goods, the supplier must, in accordance with an election made by the consumer, refund any money paid by the consumer for the goods, or replace the rejected goods with goods of the same type and of similar value, if such goods are reasonably available to the supplier. Section 259 of the ACL provides - 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement within a reasonable time - the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by the action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. 36 The conditions in s 259(3) that engage the entitlement of a consumer to reject the goods are a failure to comply with a guarantee that cannot be remedied, or a major failure to comply with a guarantee. In relation to what constitutes a major failure to comply with a guarantee, s 260 of the ACL provides - 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description - from that description; or (ii) if they were supplied by reference to a sample of demonstration model - from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe. 37 Section 260(a), which is set out above, also recruits the hypothetical reasonable consumer as a reference point for the objective standard that is established by the provision. The statutory construct of the reasonable consumer in this context no doubt draws upon principles that were developed around the condition of merchantable quality implied by sale of goods legislation. In George Wills & Co Ltd v Davids Pty Ltd [1957] HCA 6; 98 CLR 77, the Court approved a statement in the 8th edition (1950) of Benjamin on Sale that goods are said to be of merchantable quality "if they are of such a quality and in such a condition that a reasonable man, acting reasonably, would, after a full examination, accept them under the circumstances of the case in performance of his offer to buy them, whether he buys them for his own use or to sell again". The focus of the ACL, as reflected in its language, is upon the expectations and rights of consumers rather than of merchants engaged in commercial trade: compare the reference to "commercially saleable" as a synonym for "merchantable quality" in Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 2 AC 31 at 75 (Lord Reid), and see the observations of Cooper J in Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323 at 348, citing Rogers v Parish (Scarborough) Ltd [1987] QB 933. 38 The text of s 260(a) of the ACL directs attention to the question whether the goods would not have been acquired by the reasonable consumer, fully acquainted with the nature and extent of the failure, and not to the different question whether an individual consumer acted reasonably in rejecting the goods. In my view, for the purposes of evaluating whether a failure is a major failure for the purposes of s 260(a), a reasonable consumer who purchases an RV is to be taken to have some degree of tolerance for certain types of failure. This is owing to at least three features. 39 First, the legislation assumes that not every failure to comply with a guarantee will be a major failure. Section 259(2) of the ACL expressly contemplates that some failures to comply with statutory guarantees can be remedied within a reasonable time. Further, s 260(a) requires that consideration be given to the nature and extent of the failure in determining whether the reasonable consumer would not have acquired the goods, thereby indicating that the mere existence of any failure is not sufficient. Section 260(c) contemplates that goods that are substantially unfit for a common purpose might easily, and within a reasonable time, be remedied so as to make them fit for purpose, in which case there is no major failure on account of unfitness for a common purpose. Likewise, s 260(d), which relates to unfitness for a disclosed purpose, also contemplates that the goods might be remedied easily, and within a reasonable time, so as to make them fit for purpose. 40 Second, the nature of the goods is relevant. RVs, like many substantial consumer items such as motor vehicles, yachts, and even bicycles, are manufactured from a range of component parts, many of which may be capable of easy replacement or repair in the event of some fault. Some of the accessories, such as air conditioning units, televisions, or microwave ovens, may be manufactured by specialist suppliers of electrical appliances, and installed in the RV by the manufacturer or the supplier of the RV. Many of the component parts are designed for mechanical movement. RVs are intended to be towed. The process of towing will subject the RVs to stresses and flex. RVs will necessarily be exposed to weather. They are designed to be lived in, and otherwise to be used. Lids will be raised, and lowered. Doors will be opened, and shut. Drawers will be pulled out, and pushed in. RVs will be used by families with children, who sometimes lack fine motor skills when handling equipment. Surfaces may become scratched or chipped though normal use. An appliance installed in an RV, if found to be faulty, might be able to be easily repaired or replaced by a specialist supplier. Fuses may blow. Sometimes, just as in a household, the cause of an isolated occurrence of a blown fuse may not be apparent. Screws might have to be tightened. Doors might have to be straightened. These things are inherent in the nature of the goods. The reasonable consumer will tolerate some faults or breakages, and some need for adjustments of this type that are exposed by a period of initial use. The reasonable consumer will purchase an RV accepting that there is a reasonable prospect that some components of the RV may have to be adjusted, repaired, or replaced within a manufacturer's warranty period. Putatively, if a reasonable consumer was fully acquainted with the nature and extent of a failure to comply with a statutory guarantee at the time of purchase, the reasonable consumer might nonetheless proceed with the purchase on the basis that the supplier, or the manufacturer, will remedy the failure within a reasonable time. On the other hand, it does not follow that merely because a failure to comply with a statutory guarantee is capable of being remedied, that a reasonable consumer fully acquainted with the nature and extent of the failure would acquire the goods. Whether that is so will depend upon the circumstances of each case. 41 Third, the reasonable consumer will accept that the process of production of certain complex goods, such as RVs, can never be perfect. As I have mentioned, the Jayco RVs were subject to a manufacturer's warranty which had as an assumption that the RVs might suffer from some teething problems or defects from time to time for which the manufacturer would assume responsibility for repair. The Jayco handbook that was supplied with the RVs gave this advice to purchasers in its introduction - We recommend that you check your RV carefully as soon after you take delivery as you can ensuring that all items are working as they should and reporting any problems to your dealer for early rectification. 42 The introduction went on to state - Your first Service (1000kms or 3 months) after an initial running-in period is an ideal time for any minor adjustments to components to be made and for your Jayco dealer to answer any questions you may have. 43 It is not to be suggested that the existence of a manufacturer's warranty should operate to diminish the expectations of the reasonable consumer when it comes to questions of acceptable quality: Rogers v Parish (Scarborough) Ltd [1987] QB 933 at 945 (Mustill LJ). In particular, generally, a manufacturer's warranty should have no bearing on the question whether the goods comply with the statutory guarantee of acceptable quality. Rather, for the purposes of s 260(a) of the ACL, and evaluating whether a reasonable consumer would have acquired the goods, the existence and terms of the manufacturer's warranty are consistent with the reasonable consumer accepting that some complex goods might suffer some minor defects, expecting that they will be repaired under warranty, or in the exercise of remedies available under the ACL. As I have said, whether that is so in a particular case will depend upon the nature of the defect, and other circumstances. In those cases that are not clear-cut, the resolution of the issue will turn upon questions of fact, degree, and value judgment. 44 Section 261 of the ACL provides for the ways in which a supplier may remedy a failure to comply with a consumer guarantee - 261 How suppliers may remedy a failure to comply with a guarantee If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement: (a) if the failure relates to title - by curing any defect in title; or (b) if the failure does not relate to title - by repairing the goods; or (c) by replacing the goods with goods of an identical type; or (d) by refunding: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods. 45 Section 262 of the ACL qualifies the entitlement of a consumer to reject goods, including by providing for a rejection period - 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from which the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 46 As set out above in s 262(2), the rejection period is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to become apparent. This is a reference to the failure to comply with the statutory guarantee becoming apparent, rather than any underlying defect becoming apparent, which may occur at an earlier point in time. In Nesbit v Porter [2000] NZCA 288; 2 NZLR 465 at [40], the New Zealand Court of Appeal explained in relation to the corresponding New Zealand provision - In some instances the defect will be of a kind where it may be obvious that something is wrong with the goods but the supplier or someone else to whom the consumer turns for help may be in doubt about the exact nature of the problem and thus about how serious it is. For example, the operation of a motor vehicle may be affected by the failure of a small and comparatively obscure part, say, a waver spring in an automatic transmission; until the transmission is dismantled a mechanic cannot be sure what the defect is. Or the cause of malfunction, particularly one which occurs intermittently, may be hard to detect even upon inspection. It may be necessary to carry out a series of tests or even to wait and see what, if anything, develops. Or the repairer may think the fault has been identified and that the correct repair or adjustment has been made but this view may prove to be wrong and the problem may manifest itself again. … In all such cases, a reasonable period will not elapse before the consumer has had the opportunity to become properly informed about the nature of the defect and has also had a little time then to consider an appropriate decision, whether or not to reject the goods. It almost goes without saying that the period will be correspondingly longer where the supplier has taken steps which effectively conceal a defect or has withheld relevant information. 47 The Court in Nesbit v Porter at [41] went on to refer to the practical utility to a consumer of the right of rejection as informing what is a reasonable period within which to exercise a right to reject goods - In considering what is a reasonable period in a particular case it is necessary also to bear in mind the practical utility to a consumer of the right of rejection given by s 18 of the [Consumer Guarantees Act 1993 (NZ)]. Ms Nield submitted persuasively that, although a right to damages survives the loss of the right to reject, in pursuing it the consumer may face substantial litigation costs where the claim is for a sum exceeding the jurisdiction of the Disputes Tribunal (now $7500, or $12,000 by agreement of both parties). Replacement (under s 19(1)(b)) or repair by or at the cost of the supplier or rejection of the goods, where that is available in terms of s 18, are more "user-friendly" solutions to a consumer's problem with goods, although of course it may still prove to be necessary to litigate in order to recover all or part of the price. 48 I pause to observe that the practical and useful remedy of the right of rejection of the goods given by the ACL will in most cases be exercisable only against the supplier, and not against a manufacturer if the manufacturer did not supply the goods to the consumer. 49 In relation to the time within which it would be reasonable to expect the failure to become apparent, I respectfully agree with Derrington J in Vautin at [265], where his Honour stated that - … the section requires a sufficiently high level of certainty in relation to the knowledge of the relevant failure including its nature and extent and what it will cost to remediate it. If the level of knowledge required is as identified above, it follows that if there exists doubt about the consequences of a defect in an item and, therefore, the cost of repairing it, the failure of the statutory guarantee has not become apparent. 50 Section 263 of the ACL provides for the consequences of the rejection of goods by a consumer, which include the capacity for the consumer to elect whether the supplier should replace the goods, or refund the purchase price - 263 Consequences of rejecting goods (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within reasonable time, collect the goods at the supplier's expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection. 51 Upon an election by a consumer to receive a refund of the money paid for the goods, the supplier must provide a refund in accordance with the terms of s 263(4)(a) of the ACL: Vautin at [286]. The imperative terms of the statutory obligation under s 263(4)(a) do not authorise any abatement or adjustment of the amount paid on account of depreciation, or any use of the goods by the consumer: cf, Consumer Rights Act 2015 (UK), s 24(8), which, subject to qualifications, authorises a reduction of a refund to a consumer who rejects goods to take account of the use of the goods by the consumer. 52 Upon rejecting the goods, in addition to the right to elect to receive replacement goods, or a refund of the monies paid, a consumer is also entitled by action against the supplier to recover damages for any reasonably foreseeable loss or damage suffered by the consumer: s 259(4).
A consumer's remedies against a manufacturer 53 Division 2 of Part 5-4 of the ACL provides for a consumer to take action for damages against a manufacturer of goods in relation to a failure to comply with certain statutory guarantees. Under s 271 of the ACL, an affected person has a direct cause of action against the manufacturer, relevantly in respect of a failure to comply with the statutory guarantee under s 54 as to acceptable quality, and under s 59 in relation to a failure to comply with a manufacturer's warranty. The term affected person is defined by s 2 as meaning - (a) a consumer who acquires the goods; or (b) a person who acquires the goods from the consumer (other than for the purpose of re-supply); or (c) a person who derives title to the goods through or under the consumer. 54 In relation to a manufacturer's liability for non-compliance with the statutory guarantee under s 54 of the ACL, s 271(1) and (2) provide - 271 Action for damages against manufacturers of goods (1) If: (a) the guarantee under section 54 applies to a supply of goods to a consumer; and (b) the guarantee is not complied with; an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer. (2) Subsection (1) does not apply if the guarantee under section 54 is not complied with only because of: (a) an act, default or omission of, or any representation made by, any person other than the manufacturer or an employee or agent of the manufacturer; or (b) a cause independent of human control that occurred after the goods left the control of the manufacturer; or (c) the fact that the price charged by the supplier was higher than the manufacturer's recommended retail price, or the average retail price, for the goods. … 55 In relation to the statutory guarantee under s 59 of compliance with a manufacturer's express warranty, s 271(5) and (6) provide that a consumer may recover damages from the manufacturer if there is non-compliance with the guarantee - (5) If: (a) the guarantee under section 58 or 59(1) applies to a supply of goods to a consumer; and (b) the guarantee is not complied with; an affected person in relation to the goods may, by action against the manufacturer of the goods, recover damages from the manufacturer. (6) If an affected person in relation to goods has, in accordance with an express warranty given or made by the manufacturer of the goods, required the manufacturer to remedy a failure to comply with a guarantee referred to in subsection (1), (3) or (5): (a) by repairing the goods; or (b) by replacing the goods with goods of an identical type; then, despite that subsection, the affected person is not entitled to commence an action under that subsection to recover damages of a kind referred to in section 272(1)(a) unless the manufacturer has refused or failed to remedy the failure, or has failed to remedy the failure within a reasonable time.
A supplier's remedies against a manufacturer 56 As part of the scheme, the ACL also provides that a manufacturer of goods is liable to indemnify a supplier of goods for damages payable to a consumer, or for costs incurred as a result of a failure to comply with statutory guarantees, relevantly including the guarantees relating to acceptable quality and fitness for a purpose that the consumer made known to the manufacturer. Section 274 of the ACL provides (inter alia) - 274 Indemnification of suppliers by manufacturers (1) A manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if: (a) the supplier is liable to pay damages under section 259(4) to the consumer for loss or damage suffered by the consumer; and (b) the manufacturer is or would be liable under section 271 to pay damages to the consumer for the same loss or damage. (2) Without limiting subsection (1), a manufacturer of goods is liable to indemnify a person (the supplier) who supplies the goods to a consumer if: (a) the supplier incurs costs because the supplier is liable under this Part for a failure to comply with a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2; and (b) the failure is: (i) a failure to comply with the guarantee under section 54; or (ii) a failure to comply with the guarantee under section 55 in relation to a disclosed purpose that the consumer made known to the manufacturer either directly or through the supplier or the person referred to in section 55(2)(a)(ii); or (iii) a failure to comply with the guarantee under section 56 in relation to a description that was applied to the goods by or on behalf of the manufacturer of the goods, or with the express or implied consent of the manufacturer. (3) The supplier may, with respect to the manufacturer's liability to indemnify the supplier, commence an action against the manufacturer in a court of competent jurisdiction for such legal or equitable relief as the supplier could have obtained if that liability had arisen under a contract of indemnity made between them. …
Liability may not be excluded by contract 57 The general position under s 276 of the ACL is that the liability of a supplier or a manufacturer in respect of non-compliance with the statutory guarantees, may not be excluded, restricted, or modified by contract. However, s 276A provides that in relation to goods that are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the manufacturer may limit its liability to a supplier, but not if the supplier establishes that it is not fair and reasonable for the manufacturer to do so. That exception has no bearing on the issues in this proceeding, because the RVs were goods of a kind ordinarily acquired for personal, domestic or household use or consumption.
Unconscionable conduct 58 Overlying all the specific provisions in the ACL which regulate transactions for the supply of goods and services to consumers are the provisions relating to general protections in Chapter 2 of the ACL. Section 21 prescribes a general norm of conduct in connection with the supply or possible supply of goods or services. Sections 21 and 22 of the ACL in their form relevant to this proceeding were inserted by the Competition and Consumer Legislation Amendment Act 2011 (Cth), and commenced on 1 January 2012. During the period relevant to this proceeding, s 21 of the ACL proscribed conduct that is unconscionable in the following terms - 21 Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person (other than a listed public company); or (b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable. (2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct: (i) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or (ii) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition. (3) For the purpose of determining whether a person has contravened subsection (1): (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (4) It is the intention of the Parliament that: (a) this section is not limited by the unwritten law relating to unconscionable conduct; and (b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and (c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of: (i) the terms of the contract; and (ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration of the circumstances relating to formation of the contract. 59 Section 22 identified several matters to which a court must have regard, if relevant, for the purposes of determining whether a person has contravened s 21 in connection with the supply or possible supply of goods or services, and provided (inter alia) - 22 Matters the court may have regard to for the purposes of section 21 (1) Without limiting the matters to which the court may have regard for the purpose of determining whether a person (the supplier) has contravened section 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to: (a) the relative strengths of the bargaining positions of the supplier and the customer; and (b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and (e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and (f) the extent to which the supplier's conduct towards the customer was consistent with the supplier's conduct in similar transactions between the supplier and other like customers; and (g) the requirements of any applicable industry code; and (h) the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code; and (i) the extent to which the supplier unreasonably failed to disclose to the customer: (i) any intended conduct of the supplier that might affect the interests of the customer; and (ii) any risks to the customer arising from the supplier's intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and (j) if there is a contract between the supplier and the customer for the supply of the goods or services: (i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and (ii) the terms and conditions of the contract; and (iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and (iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and (k) without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services; and (l) the extent to which the supplier and the customer acted in good faith. … 60 The term "supplier" in s 22 of the ACL has a bespoke meaning for the purposes that section, which is not synonymous with the term "supplier" when used in Parts 3-2 and 5-4 of the ACL. 61 It will be necessary to return to these provisions when addressing the ACCC's claims that Jayco Corp engaged in conduct that was, in all the circumstances, unconscionable.
Misleading or deceptive conduct 62 Also within the general protections provisions in Chapter 2 of the ACL, s 18(1) contains a prohibition on misleading or deceptive conduct in trade or commerce, and provides - 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. … 63 It will also be necessary to return to s 18(1) of the ACL when addressing the conduct of Jayco Corp that the ACCC alleges was misleading or deceptive, or likely to mislead or deceive.
False or misleading statements in connection with the supply of goods 64 In addition to the general protections provisions in Chapter 2 of the ACL, Chapter 3 includes specific protections. In particular, Division 1 of Chapter 3 includes protections in relation to false or misleading representations. That regime operates concurrently with the general prohibition on misleading or deceptive conduct in s 18(1) of the ACL: see, s 18(2). 65 Relevant to this proceeding, s 29(1)(m) of the ACL provides - 29 False or misleading representations about goods or services (1) A person must 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: … (m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2); or … 66 I shall return to s 29(1)(m) when addressing the representations of Jayco Corp that the ACCC alleges were false or misleading.
Part 4: The Jayco warranty and owner's handbook 67 As I have observed, Jayco Corp manufactured RVs at its factory in Dandenong, Victoria, and then supplied new, manufactured RVs to Jayco dealers, which then supplied them to consumers. Jayco Corp's manufacturing operations at its Dandenong factory were significant. The factory employed skilled technicians who worked in a large and sophisticated workshop, using technically specified equipment. During the mid-2010s, which was around the relevant period for the purpose of this proceeding, Jayco Corp manufactured approximately 8,000 to 10,000 RVs per year. Those RVs were of various types, including campers, vans, and motorhomes. The RVs were all hand-assembled by a team of Jayco Corp employees on the production line. Many of the RVs were custom built to meet a wide range of customer specifications including sleeping configuration, floor plan layouts, décor choices, and a large number of additional features such as solar panels, external showers, cameras, and drive assist products. It would typically take Jayco Corp approximately six weeks to build a new RV. 68 Given that Jayco Corp's RVs were hand-assembled and made up of a varied range of component parts, it was not unusual for minor faults to be identified in an RV shortly after production. These minor faults were typically identified by the Jayco dealer shortly after receipt of the RV, or by the purchasing consumer shortly after taking delivery of it. After leaving the Dandenong factory production line, RVs were put on a truck and delivered to the buying dealer's dealership. That trip would shake the RV, which may highlight any items that required adjustment by the dealer when conducting a cosmetic and mechanical check of the RV. Further, once the customer took delivery of the RV, it was recommended that the customer take it on a relatively short "shake down" trip of about 1,000 km. The shake down trip is well known in the RV industry as the RV's maiden voyage. The purpose of a shake down trip is for the consumer to work out how to use the RV and to identify any shortcomings that were not apparent during production. Jayco Corp recommended that consumers keep a list of any items of concern to be raised at their RV's first service, which would take place after the shake down trip. The first service of an RV after an initial running in period was referred to in the owner's handbook, to which I shall return at [77] below, and the recommendation for a shake down trip was made in the context that the supply of the RV was accompanied by the Jayco warranty, to which I have referred. 69 As has been mentioned, the terms of the Jayco warranty were set out in the owner's handbook for the Jayco RVs. The material terms of the Jayco warranty commenced as follows - WARRANTY Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to major failure. 70 It is to be noted that this first paragraph of the warranty followed the text prescribed by reg 90(2) of the Competition and Consumer Regulations, which is set out at [32] above. The warranty continued - Jayco Corporation Pty Ltd (ABN 005 266 91) ("Jayco") provides the following warranty in relation to its recreational vehicles and other units ("RV"). The benefits of this warranty are in addition to any rights and remedies imposed by Australian State and Federal legislation that cannot be excluded. Nothing in this warranty is to be interpreted as excluding, restricting or modifying any State or Federal legislation applicable to the supply of goods and services which cannot be excluded, restricted or modified. 71 The second paragraph of the warranty as set out above, substantially complied with reg 90(1)(h) of the Competition and Consumer Regulations, which is referred to at [32] above. 72 The warranty continued by providing for a warranty that all parts of Jayco Corp's manufacture were free from defects in material and workmanship for a period of 12 months, and in the case of an original manual roof lifting winch, a lifetime warranty was given in favour of the original purchaser - Jayco warrants to the original purchaser of every RV that all parts of our manufacture are free from defects in material and workmanship for a period of 12 MONTHS from date of purchase under normal use and specified service, except for the items listed under "What is not covered" and subject to compliance with the section entitled "What must you do". The original manual roof lifting winch installed in a Jayco camper trailer carries a lifetime warranty for the original purchaser only (this is not transferrable to a subsequent owner). 73 The warranty provided that in the event that any part of the RV was proven to be defective in material or workmanship in the 12 month warranty period, Jayco might, at its sole discretion, replace or repair the RV, or the defective part - Under this warranty, if any part of your RV is proven to be defective in material or workmanship during the 12 month warranty period Jayco will, at its sole discretion, either: • Replace or repair the RV or the defective part of the RV, or • Cause the RV or defective part of the RV to be replaced or repaired by a Jayco dealer or authorised repairer Warranty repair or parts replacement will be performed free of charge by an authorised Jayco dealer or repairer at its place of business within a reasonable time after delivery of the RV to the dealer or repairer during normal business hours. Where an on-site repair is requested and such service is available, a service call fee is applicable at the expense of the owner. Under this warranty no re-imbursements will be made for work done through unauthorised establishments without prior written consent from Jayco. … (Bold in original) 74 The warranty contained some limitations and exclusions, which it is unnecessary to set out. 75 In relation to making a claim in respect of any defect in the RV, the terms of the warranty directed the consumer to contact a Jayco dealer or service agent, or Jayco's service centre in order to locate an authorised agent - WHAT YOU MUST DO As a new owner of a Jayco RV, you are responsible for regular and proper maintenance (Refer to Care and Maintenance section and Periodical Maintenance Schedules). This will help prevent conditions arising from neglect that are not covered by your Jayco Warranty. At the time of delivery from your Jayco Dealer, the dealer's representative will log your information into our warranty system and issue a warranty customer delivery form. Within 21 days Jayco will then issue you with a Customer Care Card. This card is your guarantee of Service throughout the warranty period if required. If this card is not presented at the time of repair, your authorised Jayco dealer or repairer will be unable to do the work under your warranty contract. If a problem arises, contact your nearest Jayco Dealer or Authorised Service Agent to make an appointment. If you are unable to locate a dealer or agent contact Jayco's Service Centre on the Toll Free Number on your Customer Care Card for the location of the nearest authorised agent. You must make the RV available to the dealer or agent for Inspection and testing. If such inspection and testing finds no defect in the RV, you must pay the dealer or agent's usual costs of service work and testing. You will bear the costs of transporting the RV to and from the dealer or agent. You must deliver the RV to the dealer or agent during business hours or at the agreed time. If you are in an area not covered by an authorised agent, work can only be carried out in an unauthorised workshop after prior written approval from Jayco's Service Centre. 76 Beyond the terms of the warranty, the Jayco owner's handbook also contained other guidance for Jayco owners. The owner's handbook commenced with the following paragraph - Thank you for purchasing a Jayco product. Using the finest materials available, this product has been carefully designed, engineered and manufactured for your safe enjoyment. Jayco's creed is quality and to that end we stand behind all of our products with our warranty program. 77 On page 2, the following paragraph appeared - Used within recommended guidelines and procedures your Jayco will provide you with years and many happy kilometres of trouble-free travel. Your first Service (1000kms or 3 months) after an initial running-in period is an ideal time for any minor adjustments to components to be made and your Jayco dealer to answer any questions you may have. 78 Page 3 of the owner's handbook provided - CUSTOMER RELATIONS Jayco is committed to maintaining good customer relations. Your complete confidence and satisfaction in our product and services assures our continued success as a manufacturer. Our commitment to technical excellence is one aspect of our strategy for fostering an ongoing, mutually rewarding relationship with all Jayco customers through our extensive dealer network. Your authorised dealer will cordially assist you by providing service, maintenance, selection of options and instructions concerning the operation of your Jayco. Most problems arise from misunderstandings concerning warranty and service, and are usually solved by dealers, where required the dealer will obtain advice from Jayco. If you are not satisfied with the assistance you receive from any Jayco dealer you can contact our customer service department: 79 Pages 29 to 32 of the owner's handbook listed a number of Jayco dealers throughout Australia and New Zealand, including Jayco Sydney, Jayco Canberra, and Jayco Newcastle Service Centre. 80 The owner's handbook contained a section titled "Care and Maintenance". That section contained an extensive number of sections concerning different parts and characteristics of the RV. Relevant to the present case is a section concerning canvas which was in the following terms - CANVAS It is advisable when taking delivery of a new canvas annex, or a Camper Trailer or an Expanda equipped with canvas coverings that this canvas should be soaked with water twice and both times be allowed to dry before using the camper trailer or annexe on an extended trip. The reason for soaking the canvas twice is to allow the stitching to expand into the holes caused by the needle stitching of the canvas, and it will therefore tend to make your annexe or canvas cover of your camper trailer more waterproof.
Part 5: The parties' concise statements 81 The parties' statements of their cases were the subject of concise statements. The practice of using a clear and helpful concise statement in narrative form rather than formal pleadings has been encouraged by the Court in cases involving allegations of unconscionable conduct: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 1284; 139 ACSR 52 (Allsop CJ).
The concise statement of the ACCC 82 The ACCC alleged that each of the four Consumers purchased a new RV from a Jayco dealer which had serious manufacturing defects which were apparent at the time of purchase, or soon thereafter. The manufacturing defects that are alleged were detailed in schedules to the concise statement. In respect of each of the four Consumers, the ACCC alleged that a request was made for a refund or replacement, which was denied. I shall refer to the claimed defects in more detail when considering the evidence relating to each Consumer. For present purposes, the essential details of the supplies of the RVs are as follows - (1) Consumer MO - (a) Model: Jayco Swan Outback camper trailer; (b) Date of delivery: August 2013; (c) Price: $27,990; (d) Supplier: Jayco Sydney; (2) Consumer TB - (a) Model: Jayco Expanda pop top; (b) Date of delivery: 23 May 2013; (c) Price: $38,916; (d) Supplier: Jayco Sydney; (3) Consumer JT - (a) Model: Jayco Expanda Outback pop top; (b) Date of delivery: 31 August 2015; (c) Price: $39,000; (d) Supplier: Jayco Sydney; (4) Consumer RH - (a) Model: Jayco Journey Outback pop top; (b) Date of delivery: 4 December 2014; (c) Price: $47,000; (d) Supplier: Jayco Newcastle. 83 The ACCC alleged that the manufacturing defects in each of the four RVs were sufficiently serious as to entitle the Consumers to a refund or replacement RV, which each of them requested on several occasions. The unconscionable conduct of Jayco Corp is alleged to have arisen in connection with its consideration of the Consumers' claims. 84 The ACCC also alleged a total of seven representations by Jayco Corp to the Consumers in the course of their dealings with respect to the claimed defects in the RVs that were alleged to amount to contraventions of ss 18 and 29(1)(m) of the ACL. It will be necessary to return to the representations that were alleged by the ACCC during the course of considering those claims.
The concise statement of Jayco Corp 85 By its concise statement, Jayco Corp claimed that it did not sell RVs to consumers, but rather that the RVs were sold to the Consumers by Jayco dealers, who were not agents of Jayco Corp. Jayco Corp admitted that the Jayco warranty gave rise to a contractual relationship between it and the Consumers, and that it supplied services to the Consumers under the warranties. 86 Jayco Corp alleged that RVs were complex products, comprised of many moving parts, and were subject to stresses from transit, use, and exposure to weather, and that it was reasonable to expect that issues would arise in relation to the RVs. Jayco admitted that the RVs purchased by the Consumers had defects, but denied that any failure to comply with a consumer guarantee amounted to a major failure, and alleged that each RV was reasonably repairable. Jayco Corp addressed the circumstances and content of the claims of each of the four Consumers in support of its denial that there was any major failure for the purposes of the ACL. 87 In relation to the terms of the Jayco warranty, Jayco Corp relied on several provisions, including those that referred to the guarantees under the ACL, and the entitlement of a consumer to a replacement or refund for a major failure. Jayco Corp denied that an ordinary consumer would be unlikely to understand the distinction between the consumer guarantees under the ACL, and the Jayco warranty. Jayco Corp denied that it exercised effective control over the relevant Jayco dealers' compliance with their statutory guarantees, and it denied that it obstructed or interfered with the Jayco dealers meeting their obligations under the ACL. Jayco Corp also denied that it had any liability to the Consumers under the ACL to provide refunds, or replacement RVs. 88 As to the statements that Jayco Corp employees made to the Consumers that were relied on by the ACCC as misrepresentations, Jayco Corp alleged that any such statements were consistent with Jayco Corp's obligations under the Jayco warranty and the ACL.
Disputes as to the scope of the ACCC's pleaded case 89 During the course of the opening of the ACCC's case, a dispute was foreshadowed by Jayco Corp in relation to the scope of the ACCC's case. At that point, I indicated to the parties that unless they informed me otherwise, I would assume that the case was being run by reference to the parties' concise statements so that the allegations of unconscionability made by the ACCC involved allegations of unconscionable conduct towards the four Consumers, rather than more generally, such as involving a system or a pattern. I also indicated that I regarded the ACCC's concise statement as a document calculated to give Jayco Corp fair notice of the case against it, so that if there were significant allegations to be made by the ACCC that were more than mere context, they would have to be expressly pleaded. I indicated that I regarded the principal elements of the ACCC's case as those set out in paragraph [30] of its concise statement, to which I refer at [685] below. The parties did not take issue with these observations, and the hearing of the proceeding continued to final addresses. 90 In final addresses, a number of disputes crystallised between the parties as to whether the ACCC's case as presented in its closing submissions included elements that had not been pleaded. I heard some oral argument on the topic, and the parties were given leave to file written submissions about these matters. Jayco Corp presented written submissions that raised a plethora of issues, including some quite minor issues, that it claimed fell outside the scope of the ACCC's concise statement. It is unnecessary to resolve all of the disputes about the scope of the ACCC's pleaded case that were raised by Jayco Corp. However, at this point it is only necessary to mention one. 91 In its written opening submissions, the ACCC submitted that Jayco Corp's conduct in refusing the Consumers' requests for refunds or replacement RVs arose in the context of the statutory right of a consumer to reject goods in the event of a "major failure", citing s 259(3) of the ACL. The ACCC also submitted that Jayco Corp had prevented consumers from exercising rights under the ACL, including where defects were not, or could not be remedied within a reasonable time. The ACCC referred to what it alleged were unsuccessful attempts at repair in the case of each of the four Consumers, and referred to s 259(2) of the ACL, relating to the refusal or failure within a reasonable time to comply with a requirement to remedy a failure to comply with a statutory guarantee. In his oral opening of the case, senior counsel for the ACCC took the Court specifically to s 259(2) of the ACL, and read it to the Court. It is necessary to emphasise here that, as I have recorded at [89] above, senior counsel for Jayco Corp foreshadowed an objection during the course of the opening of counsel for the ACCC, following which I stated that I assumed that the case would be conducted by reference to the parties' concise statements. 92 In its written closing submissions, the ACCC relied on s 259(2) of the ACL as a ground on which the Consumers were entitled to reject the RVs, submitting that that the Consumers had required the relevant supplier to remedy a failure to comply with a statutory guarantee, but that the supplier had refused or failed within a reasonable time to do so. 93 In response, in final address, senior counsel for Jayco Corp submitted that the ACCC's case had been confined to reliance on the existence of major failures, as defined by s 260 of the ACL, and foreshadowed other submissions about the scope of the ACCC's pleaded case, which led me to make the direction for further written submissions. Jayco Corp submitted that "prior to the making of its closing submissions, s 259(2) of the ACL had not formed any part of the ACCC's case". Jayco Corp relied on paragraph [29] of the ACCC's concise statement, which alleged facts that were apt to engage the definition of "major failure" in s 260 of the ACL, and not the facts that would be necessary to engage s 259(2), in support of its submission that the ACCC's case had been so confined. Paragraph [29] was in the following terms - 29. As a supplier of the RV, a Jayco dealer is bound by the ACL consumer guarantees relating to the supply of goods. The RVs supplied to the Consumers failed to comply with the ACL in a manner that constituted a major failure because: 29.1 no reasonable consumer would purchase an RV with a roof that did not work, or leaked, or both; 29.2 for MO and JT, their RVs departed in significant respects from the demonstration models they had viewed; 29.3 the RVs were unfit for the purpose of outdoor use because the roof did not work, or leaked, or both and were not repaired within a reasonable time. 94 I pause to observe that the allegation in paragraph [29.1] corresponds to the condition in s 260(a), paragraph [29.2] corresponds to s 260(b), and paragraph [29.3] corresponds to s 260(c). Paragraph [29] laid the foundation and context for the identification in paragraph [30] of the circumstances in which the conduct of Jayco Corp was alleged to be unconscionable. 95 The ACCC submitted that its pleaded case had embraced reliance on s 259(2) of the ACL. Senior counsel for the ACCC fairly accepted that paragraph [29] of the ACCC's concise statement alleged a major failure, and created a tension that tended to support Jayco Corp's submission. However, the ACCC pointed to other features of the concise statement as raising reliance on s 259(2). In evaluating the parties' submissions, in addition to paragraph [29], I have given consideration to the following features of the ACCC's concise statement - (1) paragraphs [6] and [8], where the ACCC alleged that the Jayco dealers made lengthy, repeated and unsuccessful attempts to repair the RVs; (2) paragraph [12], where the ACCC alleged that Consumer MO's RV was not repaired within a reasonable time; (3) paragraph [17], where the ACCC alleged that the defects in Consumer TB's RV were not repaired within a reasonable time; (4) paragraph [21], where the ACCC alleged that the leaking in Consumer JT's RV was not repaired within a reasonable time; (5) paragraph [25], where the ACCC alleged that the roof to Consumer RH's RV was not repaired within a reasonable time; (6) paragraph [30.5], where the ACCC alleged that Jayco Corp knew that despite many repair attempts, the defects had not been fixed; (7) paragraph [30.6], where the ACCC alleged that - the Consumers were entitled to the remedy of a refund or replacement in accordance with the consumer guarantee provisions of the ACL because the defects could not be repaired or was a major failure; (8) the tables in the four schedules to the concise statement, where the details of unsuccessful attempts at repair are alleged. 96 The context in which the failure to repair within a reasonable time was alleged by the ACCC is important. In relation to each of the four RVs, the ACCC alleged in paragraphs [12], [17], [21], and [25] of its concise statement that it was substantially unfit for purpose, and was not repaired within a reasonable time. These two conditions are reflected in s 260(c) of the ACL, and if engaged, give rise to a "major failure". Therefore, the substance of the ACCC's case up to and including paragraph [29] of its concise statement is concerned with a "major failure", as defined by s 260. 97 That leaves for consideration paragraph [30] itself. Paragraph [30.5] is neutral on the question whether the ACCC's case extended beyond reliance on s 260 as grounds to reject the goods. As to paragraph [30.6], I do not regard it as sufficient to give Jayco Corp fair notice that s 259(2) was relied on. No reference is made to s 259(2). If there were formal pleadings, r 16.02(1)(e) of the Federal Court Rules 2011 (Cth) would require that the pleading state the provisions of any statute relied on. Although a concise statement may be a better form in which parties might state their cases in some types of litigation, its purpose remains to give the opposing party fair notice of the case to be met. The structure of the ACCC's concise statement, the allegations of failure to repair in the context of substantial unfitness for purpose, the clear endeavour to engage s 260 in paragraph [29], and the absence of any reference to s 259(2), lead me to conclude that, reading the concise statement as a whole, reliance on s 259(2) of the ACL did not fairly form part of the ACCC's pleaded case.
Part 6: The witnesses 98 The parties called witnesses to give evidence, each of whom adopted a comprehensive affidavit that had been prepared on the witness's behalf and to which was attached a number of documents. Each witness was cross-examined. 99 The ACCC called each of the four Consumers. In relation to two of the consumer witnesses, Consumer JT and Consumer TB, I consider that on the whole, each of them did his best to give accurate evidence to the Court in accordance with his recollection. I thought that each of the four Consumer witnesses, and particularly Consumer MO, was influenced in his or her presentation to some degree by a sense of grievance in relation to the defects in their RV. 100 In the case of Consumer MO, I formed the view that the presentation of his evidence had by reason of the passage of time been assisted by reconstruction, and that in the absence of corroborative documents, it was not in every detail reliable. I also consider that at times Consumer MO was prone to exaggeration. An example was that when he was cross-examined, he stated that when his RV went in for repair at Jayco Sydney "half the stuff wasn't done". While there were items that had to receive further attention, Jayco Sydney's warranty claim documents do not support Consumer MO's characterisation in the terms that he used. Having said that, for the reasons that I will explain, I do not doubt that Consumer MO was justified in identifying several features of his RV that were not presented or repaired to an acceptable standard. 101 I also formed the view that the evidence of Consumer RH was not wholly reliable. Although it was not put on behalf of Jayco Corp that Consumer RH was not a witness of truth in relation to her recollection, there were some aspects of her evidence which were shown to be inconsistent with the evidence of other witnesses whose evidence I accept. Some of her evidence was also inconsistent with some of the objective evidence, including that contained in business documents. I will return to these features of Consumer RH's evidence in more detail in due course. 102 Jayco Corp called two current employees, one former employee and two retired employees. Those witnesses, from least to most senior during the relevant period, were Mr Peter Manning, Mr Philip Rigby, Mr Malcolm Austin, Mr Paul Morgan, and Mr Peter Murphy. Their respective roles and responsibilities were as follows. 103 Mr Manning had been employed by Jayco Corp for more than a decade. He commenced in 2008 as a service advisor, then became a service manager, and later between 2011 and 2017 worked as a customer service manager, before moving into the spare parts team. In his role as a customer service manager, Mr Manning was responsible for managing warranty requests and dealer service enquiries of various sorts arising in New South Wales and Queensland. He had authority to approve warranty repairs up to $1,000, and he did not have authority to approve refunds or replacements. He reported to Mr Morgan, the national service manager, and he escalated matters as necessary to Mr Austin, Mr Rigby, or Mr Morgan. 104 Mr Rigby had also been employed by Jayco Corp for more than a decade. Prior to that, he had more than 20 years' experience in the RV industry in England. Mr Rigby commenced at Jayco Corp in 2009 as a production manager, and in 2012, he was appointed to the role of service manager. Mr Rigby continued in that role, except for a 12 month period following Mr Austin's retirement in mid-2015 until mid-2016, when he acted as interim customer relations manager. In his role as service manager, Mr Rigby handled warranty repair claims. As with Mr Manning, Mr Rigby had authority to approve warranty repairs up to $1,000, and he did not have authority to approve refunds or replacements, which he escalated as necessary. 105 Mr Austin was employed by Jayco Corp for more than 20 years. He commenced in 1994 as a research and development manager, then held a quality manager role, and finally from 2000 until his retirement in July 2015, he was the customer relations manager. In that role, Mr Austin was responsible for assisting dealers and consumers with any enquiries that they made to Jayco Corp, which spanned warranty queries, refund or replacement requests, and concerns that consumers may have been experiencing with dealers or repair agents. Mr Austin had authority to approve warranty repairs up to approximately $1,200 or $1,500, and he did not have authority to approve refunds or replacements. Mr Austin reported to Mr Morgan, and it was to him that he escalated matters as necessary, including by investigating and making recommendations in relation to warranty repairs above his financial limit, and requests for refunds or replacements. 106 Mr Morgan was employed as the national services manager of Jayco Corp from 2006 until 2016, when he took up work elsewhere. In that role, Mr Morgan was responsible for "after sales", which incorporated customer relations, warranty claims, overseeing the Dandenong factory workshop, distribution, spare parts and technical dealer training. Mr Manning, Mr Austin and Mr Rigby reported to him, and he reported to Mr Murphy. Mr Morgan had authority to approve warranty repairs up to $3,000, and he did not have authority to approve refunds or replacements. Beyond those limits, Mr Morgan required approval from Mr Murphy or another senior Jayco Corp employee. 107 Mr Murphy was employed by Jayco Corp for more than 40 years, from 1976 until his retirement in 2017. During the relevant period from 1 January 2013 to 30 June 2016, Mr Murphy held the role of research and development manager and reported to the CEO. As part of that role, Mr Murphy was responsible for assessing higher value warranty repairs and requests for refunds or replacements. Mr Murphy considered such requests along with recommendations made to him by Mr Morgan, and Mr Murphy had authority to approve refunds or replacements. 108 I formed the impression that each of the Jayco Corp employee witnesses did his best to give reliable evidence to the Court in accordance with his recollection, and his perception of the issues in respect of which he was cross-examined. Mr Morgan, in particular, was the subject of some persistent but appropriate cross-examination about the respective relationships between Jayco Corp, the dealers, and consumers. I consider that Mr Morgan was a credible, reliable witness whose evidence stood up well against these challenges. 109 Jayco Corp also called Mr Damien Charleson and Mr Warwick Butcher of Jayco Newcastle. Mr Charleson was, at the relevant times, the dealer principal of Jayco Newcastle. Mr Butcher was, at the relevant times, the customer relations manager of Jayco Newcastle. 110 Jayco Corp also called Mr Tyrone Bilbija and Mr Jason Holman. Mr Bilbija was, at the relevant times, the dealer principal of Jayco Sydney. Mr Holman was, at the relevant times, the service manager of Jayco Sydney. In that role, Mr Holman oversaw the workshop, service administration and procurement of parts for Jayco Sydney. Mr Holman did not have authority to determine any refund or replacement requests, which he referred to the dealer principal of Jayco Sydney, Mr Bilbija. Prior to taking up the service manager role at Jayco Sydney, Mr Holman had been employed by Jayco Corp for 14 years, starting as an installation technician and finishing as a production manager, while principally working on the pop top line of RVs. At the time of giving evidence, Mr Holman was no longer employed by Jayco Sydney, and had moved to Queensland. 111 Finally, Jayco Corp called Mr Barry Wells, a caravan repairman who had been based in Bundaberg. Mr Wells had attended upon Consumer RH in early May 2015 at a caravan park in Agnes Water, Queensland. I found Mr Wells to be an impressive witness. 112 As a final comment before turning to the background of the four Consumers' RVs, I record that all counsel presented their cases skilfully, and consistently with an appreciation that the best advocacy is selective and economical: see, Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [18] (Gleeson CJ, McHugh and Gummow JJ).
Purchase and delivery of the RV 113 In about April 2013, Consumer MO purchased a 2013 Jayco Swan Outback camper trailer from the dealer, Jayco Sydney. The agreement to purchase was effected at the Sydney Caravan Supershow at the Rosehill racecourse. Consumer MO attended the show with his wife. At the show, Consumer MO and his wife spoke to a salesperson from Jayco Sydney, received a brochure for the 2013 Jayco Camper Trailer Series, and inspected a demonstration model of the 2013 Jayco Swan Outback camper trailer. Consumer MO and his wife then left the show for several hours, during which time he read the brochure. Consumer MO gave evidence that the general impression that he formed from the glossy brochure was that the camper trailer would be of good quality and would perform well, that Jayco made a good quality product, and that Jayco prided itself on quality and being an Australian-owned caravan company. The brochure was in evidence, and I accept Consumer MO's account of the impression he formed. Consumer MO and his wife then returned to the caravan show, and agreed to purchase the RV. Consumer MO agreed to a purchase price of $27,990, and paid a $1,000 deposit. He arranged a loan with a finance company to cover the balance of the purchase price, which he paid upon delivery of the RV in about August 2013. 114 Consumer MO and his wife had never owned a caravan or camper trailer before, although they had previously rented camper trailers to use on family holidays. A camper trailer, when in its towing position, has a much lower profile than a conventional caravan. Camper trailers contain a wind-up canvas upper section and extendable sleeping accommodation on each side. They are easier to tow than caravans, and are cheaper than caravans, including pop top caravans. The 2013 Jayco Swan Outback camper trailer was one of the largest models in the 2013 Jayco Camper Trailer Series, and it was in the 2013 Jayco Outback range. The brochure listed the features of the Outback range, and stated that the Outback range "had the added strength and clearance you'll need for rugged conditions, but there are limits!" The below picture, which has been extracted from the brochure, shows a Jayco Swan camper trailer in the towing position. 115 In about August 2013, Consumer MO attended Jayco Sydney to pick up his RV. At that time, he was provided with a copy of the Jayco owner's handbook and a demonstration of how to operate and maintain the RV.
Initial concerns with the RV 116 Consumer MO stated in his affidavit that after taking his RV home from Jayco Sydney, he inspected it and identified a number of issues. Consumer MO stated that it looked like the RV had "just been slapped together". He stated that he identified that the bumper bar and back of the camper trailer were not square with the chassis, that the roof did not shut squarely because it was misaligned, and that the door was vibrating against the roof because there was not enough clearance. Consumer MO stated that these issues made him concerned about the overall quality of the build of the RV. 117 Consumer MO did not raise these initial concerns with Jayco Sydney or Jayco Corp. During cross-examination, senior counsel for Jayco Corp challenged Consumer MO on his evidence about his initial concerns with the RV. In particular, senior counsel for Jayco Corp took Consumer MO to an online survey that was completed on 10 October 2013, which recorded that it was completed by Consumer MO and in which the overall presentation of the van, as well as the dealer and salesperson criteria, were rated as "excellent". Consumer MO responded that he did not recall completing the survey, and suggested that his wife may have completed it. Consumer MO stated unequivocally that he "was not happy with the vehicle from the word go." Ultimately, I do not consider that it is necessary to resolve whether Consumer MO's concerns with his RV arose immediately after he took the RV home, or why his RV was positively reviewed in the online survey.
First trips around September 2013 and concerns raised with Jayco Sydney 118 In around September 2013, Consumer MO took his first trips with his RV to The Entrance on the New South Wales central coast, and to Newnes in the New South Wales central tablelands region. Consumer MO gave evidence that during those trips he noticed more issues with the RV, some of which were minor, but which all added up and increased his concern about the overall quality of the build of the RV. 119 Consumer MO stated that sometime after either the first or second trip, he raised his concerns with Mr Goran Gregorovic, who was at that time the service manager at Jayco Sydney. Consumer MO stated that they had a conversation to the following effect - I said: I'm not happy with the camper trailer that I have received, I have issues with it. Goran said: If you take the van home we can order new parts from Jayco Melbourne [presumably being a reference to the Jayco Corp factory in Dandenong]. We will send them photos and talk to them about how to resolve the issues. I said: Why can't you get another chassis that I can look over first. This was not the standard that I paid for. Goran said: No, this is your vehicle, we will get it fixed, this stuff is only cosmetic. 120 Consumer MO stated that he did not agree that the issues with his RV were only cosmetic, and that he asked Mr Gregorovic why he could not send his RV back to Jayco Corp and see why it was poorly built, to which Mr Gregorovic just said "no". The ACCC did not adduce from Consumer MO evidence as to whether his conversation with Mr Gregorovic referred to above was by telephone, or in person, or whether he showed Mr Gregorovic the features of his RV about which he complained. Consumer MO was not challenged in cross-examination about this evidence. However, I found the evidence about this conversation and its context, which was wholly contained in Consumer MO's affidavit, to be lacking in precision and detail in circumstances where Consumer MO stated in cross-examination that it took a long period of time to prepare his affidavit, and that the ACCC had provided much of the timeline through documents that it had obtained. I am not satisfied that any conversation to this effect occurred at the time suggested by the structure of Consumer MO's affidavit, namely after the first trips but before the first roof collapse in December 2013. That said, the documentary evidence to which I shall refer below demonstrates that Consumer MO and his wife communicated with Mr Gregorovic by email in January 2014 in relation to the state of their RV, and that he took his RV to Jayco Sydney for assessment in March 2014.
Christmas 2013 school holidays - trip to Glen Allen and the first roof collapse 121 During the Christmas 2013 school holidays, Consumer MO took his RV to a friend's property in Glen Allen, which is near Brown Mountain in New South Wales, for a holiday with five other families. On the first day of the trip, when Consumer MO was winding up the roof of the RV, one of the steel telescopic struts that held the roof up popped out, causing the roof to collapse in one corner. Consumer MO stated that with the assistance of five other adult males at the property, and over about four hours of "brainstorming" and labour, he managed to put the strut back into place so that he could raise the roof of the RV.
January 2014 - concerns raised with Jayco Sydney 122 On 8 January 2014, Consumer MO and his wife sent an email to Mr Gregorovic of Jayco Sydney that referred to attached pictures and a letter in relation to their RV. Mr Gregorovic responded on 10 January 2014, stating that he could not access the majority of the pictures and that the fault descriptions were vague. On 11 January 2014, Consumer MO sent another email to Mr Gregorovic, in which he relevantly stated - Please find attached the document with photos and fault descriptions. I hope this is a little better. Just wanted to note that the van has been on 3 trips since we got it. They have been fantastic trips and we are very much looking forward to doing a bigger trip with the family. I do find it such a shame that it seems we have been taken with some bad workmanship. 123 That email attached a five page document which contained 25 photographs of the RV with captions describing the issues of concern in the photographs. The document did not include any reference to the roof collapse that had occurred during Consumer MO's recent Christmas holiday to Glen Allen. The issues were described as cracked bed head support pole brackets, a tap that impeded the bed slide, a loose tap fitting in the bench, a drawer not mounted squarely, the bottom of a cupboard not finished properly, a chipped door, faults in a fly screen, a window that was sewn on crookedly, holes in a mattress, misaligned light fittings, screws protruding underneath the RV, inconsistency in the finish of the wheel arches, a misaligned bumper bar, and cracks in the right upper shock absorber mount welded to the chassis of the RV. There is no evidence before the Court of any response to this email from Jayco Sydney to Consumer MO.
February 2014 - concerns raised with Jayco Corp 124 In February 2014, Consumer MO raised his concerns about his RV with Jayco Corp, which in turn conveyed those concerns back to Jayco Sydney to be addressed as repairs under the Jayco warranty. On 2 February 2014, Consumer MO and his wife sent an email to an "info" account of Jayco Corp, in which they relevantly stated - My husband and I recently bought a Jayco Swan camper van. We have been campers for 25 years and finally bought our family our dream! We took possession of the trailer in September 2013. We have been on 4 trips since this date. We take very good care of all our possessions and the camper would be no exception! Unfortunately we have been disappointed with our new trailer (not everything about it, just some aspects that need to be addressed.) Please find some photos attached with explanation which we have also sent to Jayco Sydney. 125 That email attached the same five page document with 25 photographs of the RV with captions describing the issues of concern in the photographs, referred to at [123] above. 126 On 3 February 2014, Ms Andrea McCann, from the warranty division of Jayco Corp, responded to Consumer MO and his wife's email by requesting the chassis number of their RV. On 5 February 2014, Consumer MO and his wife replied to Ms McCann with the RV's chassis number. Later that day, Ms McCann sent a further response, which was copied to Mr Gregorovic of Jayco Sydney, in which she relevantly stated - Please book [your] van into Jayco Sydney for your concerns to be looked at and addressed. If Sydney is not convenient for you please advise me and I will supply details if possible of [a] closer repairer for you. I have forwarded your email onto the relevant customer service manager who unfortunately is currently off with medical concerns. He will respond to them asap on his return. 127 Later still on 5 February 2014, Mr Gregorovic sent an email to Mr Gary Cadd, who was the quality control manager at Jayco Corp, copied to Mr Manning of Jayco corp, which relevantly stated - Here are the issues [Consumer MO] has with his camper, the only ones of concern are the tent repairs, the tap fitted to the bench is too close and gets hit by the bed slider and the cracking on the shock mounts. The rest are pretty straight forward. Tent to send back for repairs, new bench required, new lower door to get and repair to gal [sic]…. Please advise…! 128 Mr Cadd responded to Mr Gregorovic, again copying Mr Manning, by relevantly stating - I'm OK with the tent and the bench but how will you get around the pump issue so it doesn't happen again? Maybe fit one of the flat ones? 129 On 10 February 2014, an email was sent from Mr Manning's email address to Consumer MO and his wife, which relevantly stated - I am confident the Dealer in Sydney, or another of our repairers if more convenient, can resolve any outstanding warranty concerns.
March 2014 - Jayco Sydney assessment of the RV 130 On about 14 March 2014, Consumer MO took his RV to Jayco Sydney for assessment. Jayco Sydney communicated with Jayco Corp as to the repairs to be conducted on Consumer MO's RV. 131 On 18 March 2014, Mr Gregorovic sent an email to Mr Manning, in which he relevantly stated - We had [Consumer MO] run his van past on Friday and it's a real mess…! (looks like an apprentice job) I think it's something that the factory needs to see and re-build properly. Please call to discuss…. 132 Later that day, Mr Manning responded to Mr Gregorovic - I am not sure if you mean the van has to come back here [to the Jayco Corp factory in Dandenong]. You would need to put a good case together for that to happen. Please send photos and a brief idea of what the problems are. 133 Later still, Mr Gregorovic sent an email to Mr Manning, in which he relevantly stated - Here are the pics and descriptions of the issues [Consumer MO] is having with the van. Both myself and Glen [Bishop] here have had a look at the issues and there is definitely something wrong with the way the van was built, it's all askew as you can see from the pics...! We have compared his van to some of the ones we have on display and its [sic] nowhere near as well put together as they are…! Looks like the walls will need to be removed and re-positioned, wheel arch areas on both sides have holes where water and dust can get to the ply flooring and over time start to rot. Not even sure if it's something Paul Tall [a repairer of RVs] would have a go at…! He actually lives closer to RVGO [an authorised repair agent under the Jayco warranty] than he does to us, they might take it on…? Your call….. 134 That email attached a copy of the five page document with the photographs that Consumer MO had sent to Jayco Corp on 2 February 2014, referred to at [123] above, with additional handwritten comments in relation to the identified issues, which I infer were made by Mr Gregorovic. 135 Finally on 18 March 2014, Mr Manning responded to Mr Gregorovic by requesting, "Please have quoted 1st". 136 On 20 March 2014, Mr Gregorovic sent another email to Mr Manning - Just a heads-up…! He's not happy about that and will contact Jayco directly and to be honest I agree with him, I haven't seen one this bad since I started at Jayco here [Jayco Sydney] …!!! 137 Later that day, Mr Manning responded to Mr Gregorovic - Someone will need to quote and assess before senior management here will consider any big decision of money back or new van. This is Jayco policy. Jayco won't just listen to words and make a decision. This is all I will tell him if he calls. Please call owner to organise. I think you being his selling dealer should quote and assess and submit the report for the owner and express their requests. I can then present the case. 138 There was no statement in terms in Mr Gregorovic's emails to Mr Manning that Consumer MO had sought a refund or a replacement RV, but it was put to Mr Manning in cross-examination that before he sent the above email of 20 March 2014, he had understood that Consumer MO wanted not just repairs but wanted his money back, to which Mr Manning responded, "Reading Goran's and my email, yes". 139 On 21 March 2014, Mr Gregorovic sent an email to Mr Manning, copied to Mr Holman of Jayco Sydney, with Jayco Sydney's quotation for the repairs to be conducted on Consumer MO's RV. The quotation was for between 32 hours ($2,460) and 48 hours ($3,960) of labour, plus parts, with 14 line items of repair work identified - Here is the quote for us to repair [Consumer MO's] van: 1. Screws protruding all over the place under the van, to cut off and tidy up with black silicon - 2hrs. 2. Wheel arches to tidy up, remove spats and secure loose metal, fill holes with black silicon and re-fit spats - 1hr. 3. To fix broken hockey stick brackets - 0.25hr. 4. Benchtop to replace, old top to remove, new top to fit and tap hole to cut, all electrical and water lines to re-attach - 2.5hrs. 5. Drawer under lounge to square up - 0.5hr. 6. Lower door to replace and roof blocks to fit - 1hr. 7. Tent section to remove, send back to factory for repairs and re-fit - 4hrs. 8. Mattress cover to replace - 0.25hr. 9. Light fitting miss-aligned [sic], need to align - 0.5hr. 10. Corner cap to replace - 0.75hr. 11. Near side front riser arm to replace - 1hr. 12. Upper shock absorber to replace, has cracked, need to grind off, weld new bracket on and treat area with Zink rich epoxy (Jotun) - 2hrs. 13. Coax connection near fridge broken - 0.25hr. 14. Body of van out of alignment, needs to have the boot, off-side wall and rear wall removed, all associated furniture disconnected from floor and walls - 9hrs. IF holes visible on floor vinyl or off-side wall, then will need to dismantle entire van to re-lay vinyl - 8hrs. To re-assemble van, walls, 12v and 240v leads, plumbing, gas lines and furniture - 16hrs. PARTS REQUIRED Top Capping on front and rear of body Upper shock mount Corner mould Lower entry door Bench top (already ordered) Mattress cover Misc. (screws, silicon, bumper mould, etc… PARTS THAT MAY BE NEEDED Complete rear camper wall Complete off-side camper wall Floor vinyl 4m TOTAL HRS - 32hrs ($2460) min, 48hrs ($3960) max (depending on work req'd) + PARTS… Please advise…!! 140 Included in the quotation at the item numbered 14 was a statement that the body of the van was out of alignment, with 33 hours of work attributed to that item. 141 On 24 March 2014, Mr Manning responded to Mr Gregorovic by requesting that he "please liaise with RV Go to do a quote on this van". RVGO was an independent RV repairer, which was authorised to conduct repairs under the Jayco warranty. That email was copied to "Accounts@RVGO", which I infer is an RVGO email address.
Jayco Corp evidence about Mr Gregorovic 142 Neither party called Mr Gregorovic, who had resigned from Jayco Sydney in July 2014. Jayco Corp adduced evidence that portrayed Mr Gregorovic as unreliable, and in particular that his assessment of Consumer MO's RV was unreliable. Mr Bilbija, the dealer principal of Jayco Sydney, stated that he thought that Mr Gregorovic's assessment of the issues with Consumer MO's RV was unreliable, and that he had transferred Mr Gregorovic from his role as a Jayco Sydney service manager to a reception role in the service department because he considered that Mr Gregorovic's judgment had deteriorated. Mr Holman also gave evidence about his doubts about Mr Gregorovic's competence and performance in assessing RVs, preferring his own technical assessment skills and experience. Mr Manning stated that from his dealings with him, he considered that Mr Gregorovic was not the most experienced service manager, and that he would frequently make incorrect assessments of RVs. He stated that at one stage, because he had lost faith in Mr Gregorovic's ability to assess RVs, he requested that he refer matters to repair agents, as Mr Gregorovic was prone to overreaction in his dealings with customers. Mr Manning was not challenged about this evidence. There was some objective support for the reservations that were expressed about Mr Gregorovic's assessment skills in the form of the differences between his quotation for repairs on Consumer MO's RV and another quotation prepared by the independent repairer, RVGO, and the warranty claim ultimately prepared by Mr Holman for the works that were undertaken. I refer to these below.
April 2014 - RVGO assessment of the RV 143 On 8 April 2014, Consumer MO took his RV to RVGO for assessment. Mr Michael Major, a director of RVGO, inspected the RV, and advised Consumer MO that he was able to repair all of the issues with the RV. Later on 8 April 2014, Mr Major sent an email to Mr Manning which set out a quotation for repairs to be conducted on Consumer MO's RV. The body of the email was as follows, verbatim - From our phone conversation this afternoon I spent 3 hours with him going through all his issue's. I feel these can be resolved without sending the vehicle back to the factory. I have informed him that, his vehicle has minor problems, but nothing that can't be fixed. They are hand built by good staff. List of problems: 1. Shock absorber bracket cracked - Removed shock absorber - the surface of the galvanising is slighting cracked due to a moving part Action - Nothing, customer has viewed the area with no shock absorber and was happy it was safe. I performed this with no charge to you. 2. Drawer cabinet under lounge not square Action - Remove and installed cabinet square to drawer and runner - estimated time - 1hour 3. Wardrobe door lock falling out of door - screws stripped in timber Action - New door would be ideal, but could attempt to fix if part not available - estimated time 1hr 4. Panel under wardrobe not straight Action - Nothing - Customer didn't know it was an access panel which is slightly smaller 5. Rear bed slides hitting tap in kitchen bench Action - (No bench needed) Fit stop to bed sliding mechanism to prevent issue (customer didn't know not to slide the bed all the way in) Additional - Please instruct how to fit the stop 6. Body misalignment - O/S/R back lower mould fitted to far out due to joining strip cut to [sic] long, and black checked plate installed to far back no off side. Steel bumper bolted in to far on near side. WALL IS NOT OUT OF ALIGNMENT DOES NOT NEED TO BE STRIPPED Action - Re-fit new rear body moulding, and POSSIBLY new checker plate. Trim joining strip and install mould correctly. Est. 4-8hrs 7. Screws protruding - A number of strut tower floor mounting screws have missed the galvanising plates - I'm sure the thin sheets have been installed slighting off, as checked against another swan. Action - Possibly using nuts and bolts to make the customer happy, my professional opinion is that it just needs sealant, load is vertically down, not in shear. 8. Holes in mattress cover. Action - Requires new front mattress cover. 9. Holes and finishing issue's with canvas Action - Remove canvas and send back for repair - est. time unknown as this will be our first attempt at this procedure 10. Roof rubbing and door frame causing door to wear heavily - this is a recurring issue Action - Remove roof spacers and move roof over 3-4mm to the Near side to allow roof to clear - NEVER ATTEMPTED, but I'm sure it will work. Though customer requested for a new door 11. N/S/R roof corner - cracked Action - Remove and replace - manufacturing of corner moulding, I have discussed this with Gary about the moulding process or material 12. Roof sealant - Solar panel and components not sealed correctly Action - Seal correctly with Dicor 13. Few Minor issue's Action - Approx 3-5 hours of small items i) Ceiling lights - not installed straight ii) N/S/F strut tower - due to clip missing and strut falling apart when all the way up iii) Rear hockey stick bracket bent - require metal one's please… iv) Sealant around inner guards, both sides aren't sealed correctly I would take a rough estimate of around 35-45 hours of work to make the customer 100% happy over 3-4 weeks by the time we get the canvas done, etc. We can give a list of parts & tasks required to make this van 100%. This customer is currently happy, I have sent him away to enjoy the vehicle over the Easter break and we'll be in contact with him after ANZAC day. I hope this email is detailed enough. Please instruct further. 144 As set out at item 6 above, Mr Major did not by his quotation consider that the wall of the RV was misaligned, but rather that the problem with the misalignment of the rear bumper was with the way the rear bumper had been fitted. And as set out in Mr Major's email, after conducting his assessment, Mr Major told Consumer MO that he could use his RV for a trip over the upcoming Easter holiday before the repairs were undertaken. 145 Within a week, on 14 April 2014, Mr Manning replied to Mr Major, providing Jayco Corp's authorisation for RVGO to proceed with the repair works on Consumer MO's RV at a cost of $3,465. Mr Manning stated that he would have obtained Mr Morgan's instructions to provide that authorisation, as the cost of the repairs was above his personal authorisation limit. I pause to note at this point that, although Mr Manning authorised the repairs that had been quoted by RVGO, as events developed, RVGO did not undertake the repair work. Repairs were later effected by Jayco Sydney in July 2014.
April 2014 - second roof collapse 146 In April 2014, and after his visit to RVGO for assessment, Consumer MO took his RV on a trip to the Hunter Valley in New South Wales. When he returned home, he attempted to set the RV up to clean it. When he was winding up the roof of the RV, the same strut popped out again, causing the roof to collapse in one corner, and on this occasion the pole tore through part of the canvas. 147 In his affidavit, Consumer MO stated that following this second roof collapse, he telephoned Mr Bilbija and stated that he was "over it" and that he wanted a refund of the money that he paid for the RV. Consumer MO stated that Mr Bilbija's response was that Jayco Sydney would collect the RV for assessment and repairs. This evidence was not challenged in cross-examination of Consumer MO. For his part, Mr Bilbija did not deny the claimed telephone conversation in terms, but stated that his first dealing with Consumer MO was at a caravan show at Rosehill racecourse, to which I refer below. Mr Bilbija was not challenged on his evidence that this was his first dealing with Consumer MO.
April 2014 - conversation between Consumer MO and Mr Bilbija of Jayco Sydney at the Rosehill caravan show 148 Later in April 2014, and before any repairs to his RV were undertaken, Consumer MO attended the Sydney Caravan Supershow at the Rosehill racecourse, with the intention of confronting Jayco Sydney about the concerns that he had with his RV. There was conflicting evidence about the content of the discussion that took place at the show between Consumer MO and representatives of Jayco Sydney. It was accepted that Consumer MO spoke to Mr Bilbija about his concerns with his RV, and that Mr Bilbija then invited Mr Holman to join their conversation. It was also accepted that Consumer MO explained the concerns that he had with his RV by reference to a bundle of photographs of the RV that he had brought with him to the show. It was accepted that Consumer MO was demonstrably unhappy with the quality of his RV, which he stated did not meet the quality advertised in the brochure that he had reviewed before buying the RV, or the quality of the demonstration model RV that he had inspected at the show the year before. Mr Bilbija stated that he was taken aback by the conversation, and described Consumer MO as very upset and agitated. Mr Holman recorded in an email sent not long after this meeting, detailed at [156] below, that Consumer MO stated that he thought that his RV was a "lemon" and that it "missed the quality check off process". I accept that Consumer MO said words to that effect. 149 Consumer MO gave evidence that he went to the show with the intention of getting a refund of the money that he paid for the RV. He stated that Mr Bilbija agreed with him that there were too many issues with his RV and that the quality of the RV was low, and that Mr Bilbija told him that not all Jayco RVs were built like that. Consumer MO stated that he demanded a refund, and that Mr Bilbija responded with words to the effect, "What would make you not want your money back? If I built you a new van, would you be happy?" Consumer MO stated that the substance of Mr Bilbija's response was an offer to provide him with a replacement RV, and that in response to Mr Bilbija's offer to provide him with a replacement RV, he agreed that was a good solution, and suggested that Jayco Sydney could sell his RV second-hand and use the proceeds of that sale to buy him a new RV from Jayco Corp at wholesale price. Consumer MO stated that he and Mr Bilbija shook hands on that agreement. Later, in a letter from Consumer MO to Mr Holman dated 17 August 2014, which was after the RV was returned to him following repairs, Consumer MO wrote that he was "not completely happy with the final product", and that he was "promised by Tyrone Bilija [sic] (the Principal owner) at the Rosehill show 2014, that I would get a complete rebuild". The substance of that letter is set out at [170] below. There was also a reference by Mr Manning in an email of 19 August 2014, which is set out at [174] below, to a conversation with Consumer MO, in which he claimed that Mr Bilbija would arrange a rebuild of the RV. 150 Mr Bilbija gave evidence that when Consumer MO explained his concerns with his RV, Mr Bilbija considered that the issues were quite minor and only required basic adjustment, or were merely aesthetic and also easily repairable. Mr Bilbija stated that he was taken aback by the conversation, particular as Consumer MO was very upset and agitated, and that he asked Consumer MO, "What could Jayco Sydney do to make you a happy customer?" Mr Bilbija stated that, in response to that question, Consumer MO said that he would only accept a refund or a new RV. Mr Bilbija stated that he then said words to the effect of, "Ok, well, we'll need to get your van into the dealership to properly assess the issues first, and then we can move forward after the show." Mr Bilbija denied that he agreed to refund Consumer MO or provide him with a replacement RV, and gave evidence that he would never commit to a refund or replacement without first assessing an RV. Mr Bilbija gave evidence that he was certain of his account, as it stuck in his mind because no other customer had ever approached him at the show in such an agitated manner. Mr Bilbija's evidence was also consistent with an account that he gave in an email to Mr Manning on 19 August 2014, which is set out at [175] below. 151 Mr Holman also gave evidence about his and Mr Bilbija's conversation with Consumer MO at the Rosehill caravan show. Mr Holman denied that either he or Mr Bilbija agreed with Consumer MO that there were too many issues with his RV, or that the quality of the RV was low. Mr Holman stated that Mr Bilbija asked Consumer MO what he could do to make him a happy customer, to which Consumer MO responded that he wanted a refund, and then Mr Bilbija asked Consumer MO to bring his RV to Jayco Sydney to be assessed. Mr Holman stated that he did not recall Consumer MO suggesting that Jayco Sydney could sell his RV second-hand and use the proceeds of that sale to buy him a new RV from Jayco Corp at wholesale price. Mr Holman also stated that neither he nor Mr Bilbija offered to provide Consumer MO with a replacement RV, and that there was no handshake agreement to do so. 152 The principal issue in the conflicting evidence is whether Mr Bilbija made an offer to provide Consumer MO with a replacement RV, which Consumer MO accepted, or whether he simply agreed to assess the RV. Consumer MO, Mr Bilbija, and Mr Holman were cross-examined on this topic. During cross-examination, Consumer MO and Mr Bilbija maintained their accounts of the conversation, as summarised above, while Mr Holman, when pressed, appeared to have little recollection of the conversation. 153 While I am persuaded that Consumer MO requested that a new RV be built, and that he and Mr Bilbija discussed the prospect of a replacement RV, I am not persuaded that Mr Bilbija agreed to provide a replacement RV to Consumer MO. I make that finding for two main reasons. First, in addition to his evidence about the particular conversation itself, Mr Bilbija gave evidence that it was not his practice to commit to a refund or replacement without first assessing the RV. I accept that evidence of Mr Bilbija's practice, which makes common and commercial sense, and which supports Mr Bilbija's account. Second, while Mr Holman revealed under cross-examination that he had little recollection of the conversation, his record in an email sent not long after this meeting, detailed at [156] below, supports his account. In that email, Mr Holman refers to Consumer MO having demanded a replacement RV, but does not refer to any commitment by Mr Bilbija to provide Consumer MO with a replacement. In fact, the request for advice in that email is not consistent with Mr Holman, who was present during the relevant conversation, having any perception that Mr Bilbija had agreed to supply Consumer MO with a new RV. Further, and as I have referred to already, Mr Bilbija's account is supported by an email that he sent to Mr Manning on 19 August 2014, which is set out at [175] below. 154 Ultimately, however, the ACCC submitted that its case did not depend upon the Court accepting Consumer MO's account of his conversation with Mr Bilbija, including whether Mr Bilbija had agreed to replace his RV.
Jayco Corp's consideration of the Jayco Sydney and RVGO repair work quotations 155 On 7 May 2014, and after the Rosehill caravan show, Jayco Sydney arranged for a tilt trailer to collect Consumer MO's RV from his home to be brought back to Jayco Sydney. 156 On 8 May 2014, Mr Holman sent an email to Mr Manning, copied to Mr Bilbija, providing a report of their meeting with Consumer MO at the Rosehill show and seeking guidance on the next steps to be taken - I have an issue with the unit we have had quoted for repair. You have approved the repairs to be carried out by RVGO. This was organised to happen until the customer showed up at the Sydney Show last week and was demanding a new van to be built. Since the van has been booked in for repair, the riser arm has come away on one corner causing the roof to drop down and the arm to penetrate through the vinyl tent. Thus rendering the van un-usable to him. He was quite upset when he was speaking to myself and Tyrone, stating clearly that he feels that his camper is a "lemon" and will not except [sic] the van back repaired. He also stats [sic] that he has inspected the vans at our Sydney site and in comparison, he feels his van had "missed the quality check off process". Please advise on how you would like to approach this and seek rectification. 157 Later that day, Mr Manning responded to Mr Holman, addressing the proposed repairs to the RV's roof, and stating Jayco Corp's position that it would not provide a replacement or refund - I am not sure what you think; but normal tent policy is the tent to come off and be sent back here for repair. If you have someone there that can repair; we would look at that option. Will need a quote first though. They can order parts to repair from spares. Jayco will not be giving owner a new camper or refund. 158 On 9 May 2014, Mr Holman forwarded that email to Mr Bilbija. Mr Holman stated, "Have emailed and spoken to Peter Manning yesterday (8/5/14) and explained the situation with him and he has still advised us to repair the unit." 159 On 12 May 2014, Mr Bilbija forwarded that email, along with the preceding email chain which included the earlier emails between Jayco Sydney and Jayco Corp in relation to Consumer MO's RV, to Mr Austin and requested a call to discuss the matter. Later that day, Mr Austin responded to Mr Bilbija by email, copying Mr Manning and Mr Morgan. Mr Austin stated that he required further information before having a conversation with Mr Bilbija about the matter. Mr Austin also stated that he was "not happy with some of the 'facts' below", and made some comments in the body of the earlier emails. Mr Austin's comments on those earlier emails included - (1) In response to the email from Mr Gregorovic to Mr Manning dated 18 March 2014 providing Mr Gregorovic's view on the state of Consumer MO's RV, referred to at [133] above, Mr Austin commented "This is radically contradicted by an assessment carried out by RVGO on 08/04/2014". (2) In response to the email from Mr Gregorovic to Mr Manning dated 21 March 2014 setting out Jayco Sydney's quotation for repairs, referred to at [139] above, Mr Austin queried whether several of the items listed were covered by the Jayco warranty and stated that the line-item for re-assembling the van within item 14 was "NOT what RVGO have diagnosed. So who is correct?" More generally, in respect of the differences between Jayco Sydney and RVGO's assessments and repair quotations, Mr Austin stated - This needs to be re-examined to establish just what is required. The different results from inspections by Jayco Sydney and RVGO indicate that one of them is severely wrong so we need to know which is correct. (3) In response to the email from Mr Holman to Mr Manning, copied to Mr Bilbija, dated 8 May 2014 providing a report of their meeting with Consumer MO at the Rosehill caravan show and seeking guidance, referred to at [156] above, Mr Austin stated that the riser arm issue "may be due to incorrect use, it isn't hard to over winch and pop the telescopic post out", and that "Depending on who is right (see below) [in reference to his comment about which of Jayco Sydney or RVGO's assessment was correct] the decision to repair or to refer for a replacement van to Jayco CEO will need to be made." (4) In response to the email from Mr Manning to Mr Holman dated 8 May 2014 addressing the proposed repairs to the RV's roof, referred to at [157] above, Mr Austin stated, "If the end result of the review is that the van should be rectified (which is Jayco's right if the faults are minor as per the RVGO report) it may be [better] to install a new tent so that the work can be expedited." 160 The following day, on 13 May 2014, Mr Austin sent a further email to Mr Bilbija, copied to Mr Manning and Mr Morgan, regarding the next steps to be taken - There is still a difference of assessment between [you] and RVGO regarding the body shape. RVGO say it is a simple fix. If we supply a new tent that should expedite the warranty work. Clearly RVGO believe the mouldings have been mounted incorrectly and so all the work on the walls is not required. The van should go to RVGO and be repaired; Peter Manning will expedite supply of a new tent. I cannot refer your request to replace the van with a new one to Peter Murphy on the information to hand. Jayco is entitled to carry out warranty work. A replacement van would only be agreed to for major structural or safety reasons and this doesn't apply. 161 On 14 May 2014, Mr Bilbija responded to Mr Austin and relevantly stated - I understand your position. You do realise that our Service manager is no longer Goran [Gregorovic] and it is Jason Holman. Who came from Jayco and the Pop Top Line production manager? RV go have not long been warranty agents and I have to trust experience over enthusiasm. I will talk to Jason and come back to you. 162 Mr Bilbija forwarded his email to Mr Holman. During cross-examination, Mr Bilbija explained that his comment in that email that he had to trust experience over enthusiasm was in support of his position that he would prefer for Mr Holman of Jayco Sydney, rather than RVGO, to assess and repair Consumer MO's RV. 163 Later on 14 May 2014, Mr Holman sent an email to Mr Bilbija, copied to Mr Austin, in which he relevantly stated - I will start to take apart this unit and assess the situation. I will touch base with [Consumer MO] and let him know that Jayco have to undergo certain steps to diagnose the extent of the problem. I will let you know my findings. 164 Later still on 14 May 2014, Mr Austin forwarded that email to Mr Manning stating "[o]ver to you", Mr Manning responded "I thought RVGO were going to do this one?", and Mr Austin replied "So did I but it seems Jayco Sydney know best." Mr Manning then sent an email to Mr Holman, copied to Mr Austin, asking Mr Holman to "keep me [Mr Manning] updated as I thought RVGO had this one under control." Ultimately, as will be seen, Jayco Sydney performed the repair works on Consumer MO's RV. 165 Consumer MO stated that sometime in the ensuing weeks, he telephoned Jayco Sydney to get an update on the status of his RV, which had been collected from his home on 7 May 2014. Consumer MO stated that someone from Jayco Sydney, whose name he could not recall, informed him that, contrary to his understanding, he was not receiving a replacement RV, stating words to the effect of "Jayco Corporation wouldn't go for it", and that Jayco Sydney was waiting on parts to repair his RV, and that he would need to deal with Jayco Sydney to get his RV repaired. Consumer MO stated that he did not seek to rely on the purported agreement struck with Mr Bilbija at the caravan show for Jayco Sydney to replace his RV because he had "lost energy" with the process of dealing with Jayco Sydney. 166 Consumer MO gave evidence that "around this time", but not recalling when, he called Jayco Corp and conducted a telephone conversation with a person he identified in his affidavit as "Phil", but whom in oral evidence-in-chief he identified as Mr Manning, about his ongoing concerns with his RV. He stated that the person told him that he would have to speak to Jayco Sydney about any issues that he was having with his RV and that Jayco Sydney was responsible for the RV and any remedy provided to him, and that it was not up to Jayco Corp to provide any remedy including a refund or replacement. When this account was put to Mr Manning during cross-examination, Mr Manning said that he could not recall that conversation but that it was quite possible that he would have directed Consumer MO to his selling dealer, being Jayco Sydney. I will return to Consumer MO's evidence about this conversation when addressing the ACCC's misrepresentation claims.
July 2014 - Jayco Sydney repair work 167 On or about 21 July 2014, Jayco Sydney undertook repairs on Consumer MO's RV. Jayco Sydney produced a warranty claim document, which set out the repair works performed and by reference to which Jayco Sydney sought reimbursement from Jayco Corp. The warranty claim stated that the repair works required a total of 13.5 hours of labour, and that the cost was $1,012.50 in labour and $60.05 in parts, for a total cost with GST of $1,179.80. The actual time and cost was considerably lower than what had been first quoted by Mr Gregorovic, and what had been quoted by RVGO. The warranty claim included 17 line items of repair work, each with a "Reason" and a "Detailed Desc[ription]". Those items were: (1) an item which attributed "Manufacturing Fault" as the reason for the item, with the description "Replace benchtop as bed runners hit tap. Tap not put in correct location. Removed taps,stove and sink, and removed old bench top. New bench top fitted, with taps in proper position and re-installed stove and sink"; (2) an item which stated "Cracked" as the reason, with the description "Bed support pole (tent pole) bracket is cracked. Broken Replaced 2 x hockey stick brackets"; (3) an item which stated "Damaged" as the reason, with the description "Replace tap. Tap has been damaged by bed runner. Damaged tap removed and replaced with new tap"; (4) an item without a stated reason, with the description "Rear dinette drawer crooked. Fault from build. Unscrewed seat and re-fitted drawe [sic] carcass squarely. Re-fitted and tested drawer"; (5) an item with "Part Missing" as the stated reason, with the description "Cupboard missing screws. Not fitted at factory. Fitted screws where needed"; (6) an item with "Damaged" as the stated reason, with the description "Replace bottom entry door. Botom [sic] of entry door been damaged from roof being lowered. Removed original door and replaced with new lower door"; (7) an item with "Poor Workmanship" as the stated reason, with the description "Internal roof lights are mis-aligned. Not installed correctly at build. Measured position of each light and moved accordingly so all 3 x lights are in a line and are correctly spaced"; (8) an item with "Modified to Suit" as the stated reason, with the description "Many screws penetrating through floor. Fault at build. As many screws as possible have been ground down though there were a few that needed to be left long"; (9) an item with "Faulty" as the stated reason, with the description "Riser arms to be replaced x 4. All 4 x riser arms appear to be bent. Multiple issues with build quality of van. All 4 x riser arms removed and replaced with new riser arms." (10) an item with "Cracked" as the stated reason, with the description "Rear off-side A.B.S. (tail-light housing) to be replaced. It is cracked. Has cracked. Removed cracked tail light housing and all related componentry, Replaced with new"; (11) an item with "Manufacturing Fault" as the stated reason, with the description "Re-seal underside---rear. Not sealed correctly at build. Applied silicon along back edge and sealed"; (12) an item with "Manufacturing Fault" as the stated reason, with the description "Rear of van crooked to bumper. Plastic mould not pushed on correctly. Pushed mould into [correct] position and [custom] fit it to van so bumper looks and measures correctly. Related to job 11"; (13) an item with "Cracked" as the stated reason, with the description "L.H.S. rear onside corner cap cracked. On inspection 3 x corner mould were found to be cracked. Removed bag awning , bed flies and faulty caps. Cleaned area and fitted 3 x new corner caps. Relaced [sic] awning and flies"; (14) an item with "Part Missing" as the stated reason, with the description "Holes in checker plate underside from screws. Not all screws installed into checker plate at time of build. Fitted remainder of screws were [sic] needed"; (15) an item with "Cracked" as the stated reason, with the description "Off-side shocker mount , gal is cracked. Blow out in galvanising process. Cracked away bad gal and re-painted with silver gal"; (16) an item with "Faulty" as the stated reason, with the description "Replace tent section. Ill fitting canvas. New tent section fitted. Authorised by Pete Manning"; and (17) an administration fee. 168 The warranty claim document records that the claim was approved by Jayco Corp on 30 September 2014, and Mr Manning gave evidence that as it was over his financial limit, it would have been approved by Mr Austin.
August 2014 - return of the RV and Consumer MO's further concerns 169 In about August 2014, Jayco Sydney delivered Consumer MO's RV to his home. Consumer MO was not at home, and his wife accepted delivery of the RV. Consumer MO gave evidence that the weekend after his RV was returned, he thoroughly inspected the RV and identified further issues with it. 170 On 17 August 2014, Consumer MO sent an email to Mr Holman of Jayco Sydney and the "info" account of Jayco Corp. That email was also copied to "tyrone.bililjah@jaycosydney.com.au", which was not Mr Bilbija's email address, and therefore Mr Bilbija did not receive the email. The email attached a letter in which Consumer MO set out his concerns with the RV, stating - Thank you for returning our van. I have had the opportunity over the weekend (9/8/14) to have a thorough look over it. Below are the details of what I have found: 1. Roof to body is still 12mm in misalignment. (As seen in the photo with builders pencil as a gauge.) 2. Small hole in the new tent section, noticed straight away. 3. Small chip on new door. 4. Minimal attention to detail when sic flexing new rear corner mould. Bag end physically stuck to corner mould and had to be peeled back. 5. Drill hole on rear extrusion not attended to. 6. Wheel arches not attended to. 7. Bed looks like it has been slid out whilst boot lid open as scratch mark on gel coating (not previously there.) 8. Limit switch arm plus 4 screws found on canvas (not sure if old parts left in or new parts broken off.) I am not completely happy with the final product. I was promised by Tyrone Bilbija (the Principal owner) at the Rosehill show 2014, that I would get a complete rebuild. This did not happen. I was also told we would receive an extended warranty, this has not been offered. We have continued to pay off our finance on the van whilst it was taken for repairs. It was taken late April and returned early August (with no family holiday trips during this time.) I am requesting that we receive a full money back refund as the product we purchased from the 2013 show is not what was shown. It is not fit for our intended purposes. 171 The letter included eight photographs, which illustrated, point by point, some of the identified concerns with the RV. 172 On 18 August 2014, Mr Manning sent a response to Consumer MO, Mr Holman, and Ms McCann, which relevantly stated - Hi Jason [Holman], Please let me know how you go with this one. Please book in to have any remaining items addressed under warranty. We don't see this requiring a refund for the owner. Repairs will be covered under the Jayco warranty plans. 173 Later on 18 August 2014, Mr Holman also sent a reply to Consumer MO, which relevantly stated - Thank you for the information you have supplied me in regards to your Swan Camper R13784. Sorry to hear that you are not happy with the final product. I strongly urged that you could be present when we delivered your camper back so that you could inspect the works yourself. My understanding is that Mrs [MO] was happy with the works carried out when the camper was wound up and that no issues were reported upon delivery. I confirm that your van is repairable, in our opinion the repairs are not deemed to be major and does not substantiate your request for a replacement van or money back. Jayco Sydney is willing to provide the following at no cost to you. • Transport your van chassis R13784, to and from your place of residence to complete repairs. • Jayco Sydney will supply a further 12 month warranty on all repairs completed once your van is returned to you. I formally ask for your approval to transport your van to and from Jayco Sydney for repairs to be completed. I await your approval so that I can move ahead with the repairs required on your van. 174 The next day, on 19 August 2014, Mr Manning sent an email to Mr Bilbija, copied to Mr Holman, in relation to a telephone conversation that he had recently had with Consumer MO, which he could no longer recall when giving evidence in this proceeding. That email relevantly stated - Owner has been trying to talk to you about his camper and your commitments. Apparently you said he would get a rebuild. But in the end he was told you repaired the camper instead. Of which not all is fixed anyway. He's not happy about the decision to change without notice. He has spoken to Jason but wants to talk to you. Can you please call him to discuss. He is not happy. Apparently the owner says that the warranty should be extended by 12 months. We do not know about this. I have currently extended it by 3 months but will [be] extended out to 12 months if you give me the go ahead everything is alright with them. 175 Later on 19 August 2014, Mr Bilbija replied to Mr Manning with his own account of his dealings with Consumer MO - Jason and I had a sit down with the customer while the Sydney [show] was on. He walked on to the stand and demanded to talk to me. As you would be aware it was not the best time for me to deal with this type of complaint as the Sydney I [sic] the most busiest sale time of the year for me and my dealership as it is responsible for approx. 180 sales in nine days. Nether the less [sic] I took the time to sit down with him and asked Jason Holman to join me in the conversation as he is the Service Manager and would be the one looking after the issue, as that is his job. [Consumer MO] brought photos and evidence of the issues he has had with his camper. We went through all the issues and the major one was his roof collapsing and damaging his tent section. He had other aesthetic issues but was convinced that they were structural and deemed [sic] a new van. I asked [Consumer MO] what would make him a happy customer and his reply was "a new van". I told him that we would pick up his van to bring it back to the dealership to assess. I then said once we assess the van we could then make that decision after talking with Jayco Melbourne [Jayco Corp in Dandenong]. Upon inspection of [Consumer MO's] van Jason and myself both knew that there was no way you guys would approve a rebuild with the issues at hand. The major thing was a new tent section to be fitted which took approx. 2 months to arrive from time of order. As far as not knowing about the decision to repair rather than re build the van Jason had made numerous attempts to Contact [Consumer MO] with no answer and return phone call and once he even got through to him he let him know that we were waiting on his new tent to arrive and was told "don't call me to tell me that you are not working on my van". In the end I instructed Jason to email [Consumer MO] as he could not get through to him. Once the van repairs were complete Jason tried to get [Consumer MO] out here to sign off on the work but [his] response was that he was [too] busy. We were happy to deliver the van to him but requested that he be at home to go through the van. He told us that he could not be at home but need the van ASAP and that his wife would be there [to] go through it. We delivered the van and ran through the van with his wife and his wife agreed that the van was fine. Now Two weeks later he has time to go through it and there is damage on the tent section which nobody saw before (we are repairing it anyway) and other small issues but some are really of no concern at all. Jason has cc you on an email that he has sent to [Consumer MO] regarding picking up his van to fix. I am not aware of [Consumer MO] trying to call me. 176 The next day, on 20 August 2014, Mr Manning responded to Mr Bilbija, relevantly stating - Thanks Tyrone. It's a bit different to what he told me. Gotta love them. Can you please call him to see if you can put the fire out over the phone.
August 2014 - further repair work by Jayco Sydney 177 On 22 August 2014, Jayco Sydney conducted further repairs on Consumer MO's RV. Jayco Sydney again produced a warranty claim document, which set out the repair works performed on Consumer MO's RV and by reference to which Jayco Sydney sought reimbursement from Jayco Corp. The warranty claim stated that the repair works required a total of 1.75 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and the cost was $131.25 in labour and nothing for parts, for a total cost with GST of $144.38. The warranty claim included six line items of repair works, namely: (1) an item which stated "Poor Fit" as the reason, with the description "Roof to body is still 12mm in mis-alignment. roof not square to body contacted p.manning [Mr Manning] and p.rigby [Mr Rigby], nothing can be done"; (2) an item which stated "Damaged" as the reason, with the description "small chip in door faulty replaced with new"; (3) an item which stated "Manufacturing Fault" as the reason, with the description "Drill hole on rear extrusion drill hole from manufacturing screwed bag flies to van, utelising [sic] hole"; (4) an item with stated "Poor Workmanship" as the reason, with the description "Wheel arches not attended to. sraw [sic] ply showing inside wheel arches sealed with black silicon"; and (5) an item with stated "Damaged" as the reason, with the description "Bed mattress has swarf [sic] in replaced with new"; and (6) an administration fee. 178 Mr Manning gave evidence that on 9 September 2014, Jayco Corp automatically approved the warranty claim for the repair works, as the modest value was within a threshold for automatic approval. 179 Mr Holman stated that when Consumer MO came to Jayco Sydney to collect his RV after those repair works were completed, Mr Holman demonstrated to Consumer MO that other similar RVs at Jayco Sydney had very similar roof alignment to his RV, and Mr Holman also discussed the repairs to confirm that all of Consumer MO's concerns had been addressed. Consumer MO stated that when he collected his RV, nothing had changed with the corner moulding, the roof was still misaligned as he could still fit his finger up one side between the closed roof and the RV, and one corner had no tolerance so when he took the RV on the road, the movement kept cracking the plastic corner mould cover. Consumer MO said that he took photographs of his RV when he collected it following these repairs. However, it does not appear that those photographs are before the Court. There are a number of photographs dated 9 and 10 August 2014, but this was prior to the repair work on 22 August 2014. The photographs annexed to Consumer MO's affidavit from the relevant period included a group of photographs dated 25 August 2014, which are stated to be of Consumer MO's neighbour's Jayco RV, and another group of photographs dated 6 September 2014, which are stated to be of other Jayco camper trailers at Jayco Sydney. Despite this absence of photographs of Consumer MO's RV, I find that after these repairs, there remained a misalignment with the roof of Consumer MO's RV. This inference arises from the first item of the Jayco Sydney warranty claim document that stated that "nothing can be done" to fix the defect caused by a "poor fit" resulting in a 12 millimetre misalignment between the roof and the body of the RV.
Consumer MO's later concerns with his RV 180 After Consumer MO collected his RV from Jayco Sydney following the repairs conducted on 22 August 2014, he had no further dealings with Jayco Sydney or Jayco Corp in relation to the RV. Consumer MO stated in evidence that he has continued to develop new concerns about his RV. He stated that when he takes the RV away, something small is always breaking. He gave evidence of a trip in October 2017, in which he found that the sun roof was leaking, the bed ends collapsed on multiple occasions, the handle of the water pump came off, there were splits in the front boot section where the door was previously replaced, and the plastic corner moulds remained cracked. Photographs taken by Consumer MO of cracks in a corner mould and on the piano hinge on the mounting front boot lid of the RV dated 12 October 2017 were in evidence. However, apart from the cracked mouldings, I do not consider that these other matters are in issue, as they are not the subject of any specific plea in the ACCC's concise statement in the particulars relating to Consumer MO.
Consideration - defects in Consumer MO's RV 181 The defects in Consumer MO's RV which the ACCC alleged in its concise statement were as follows - Defects When defects identified When defects reported to Jayco dealer or service agent, or Jayco Corp
182 The ACCC submitted that by no later than 7 August 2014, the defects affecting Consumer MO's RV had not been rectified within a reasonable time, the RV was not fit for purpose, and that a reasonable consumer in Consumer MO's position would not have spent more than $27,000 on the RV, had he or she known that it would be affected by the previous and existing defects, thereby seeking to engage the concept of major failure in s 260 of the ACL. The ACCC submitted that, in addition, two of Jayco Sydney's service technicians, Mr Gregorovic and Mr Bishop, who was referred to in Mr Gregorovic's email to Mr Manning on 18 March 2014 (see [133] above), had identified that the RV was not as well put together as other RVs sold by that dealership, and that the Court can readily infer that it did not match the demonstration model shown to Consumer MO at the time of purchase. 183 Jayco Corp did not contest that there were defects in Consumer MO's RV. What was put in issue, as with each of the Consumers, was whether there was a major failure, thereby engaging an entitlement under the ACL to reject the goods, and to seek a refund of the purchase price or a replacement. 184 As to the first group of defects alleged by the ACCC, I find that upon delivery or within a short period of normal use thereafter, the RV exhibited a number of instances of poor workmanship in its build. The bumper bar and rear of the body of the camper trailer were not square, a crack developed in the galvanized coating of a shock absorber mount, and many features of the interior of the RV were poorly finished. The photographs that Consumer MO took of his RV that were presented to Jayco Sydney and subsequently to Jayco Corp in early 2014 demonstrate poor quality finishing on the door, poorly finished stitching to parts of the insect screen on the tent section of the RV, instances of poor quality joinery inside the RV, misaligned light fittings, and a mattress which contained holes in its covering. I consider that all of these features rendered the RV to be not of acceptable quality for the purposes of the guarantee under s 54 of the ACL. I did not understand this to be disputed by Jayco Corp, which had Jayco Sydney attend to most of these items when undertaking warranty work in July-August 2014. A summary of Jayco Sydney's warranty claim dated 21 July 2014 is set out at [167] above. The tent section had to be replaced for reasons that were independent of the poor finish on the insect screen, namely the holes that were caused by the failure of the strut in April 2014. Otherwise, for completeness, I take to be within the defects captured by the first item in the ACCC's particulars all the matters that were the subject of repairs that were recorded in Jayco Sydney's warranty claim document. 185 In his affidavit, Consumer MO referred to gaps between the body of the camper trailer and the roof that he identified shortly after taking delivery of the RV. He was not directly challenged in cross-examination about this evidence. It is noteworthy that when Consumer MO made his initial complaints about the quality of the RV by email to Jayco Sydney and to Jayco Corp in January and February 2014, he made no mention of any misalignment of the roof, or to the collapse of the roof in December 2013. However, Mr Holman of Jayco Sydney stated in his affidavit that when Consumer MO attended the caravan show at Rosehill in April 2014, he complained that his RV was "out of square to the roof". In his affidavit, Mr Holman stated that when he looked over the RV sometime after 8 May 2014, he thought that there was not much wrong with it, and that the roof was sitting correctly. It appears that the roof became misaligned, because there are photographs demonstrating the misalignment, which Consumer MO submitted to Jayco Sydney on 17 August 2014. Further, and as I have mentioned, in its warranty claim dated 22 August 2014, Jayco Sydney referred to a 12mm misalignment between the roof and the body, stating that "nothing can be done". Mr Holman stated in his affidavit that the misalignment was a "very standard difference and within tolerances for that alignment". In cross-examination, Mr Holman accepted that there was a series of manufacturing faults and issues with the build quality of Consumer MO's RV. The tenor of his evidence was that they were all readily fixed. Mr Holman was not challenged about his observations of the roof alignment in May 2014, or his statement that the alignment as it appeared in August 2014 was within tolerances. The ACCC did not adduce any other evidence, such as expert evidence, relating to the alignment of the roof. 186 Consumer MO made a number of other complaints about screws protruding from the underside of the RV. The protruding screws may not have become apparent to a reasonable consumer but for the other problems relating to fit and finish of the RV that were patent, which I find put Consumer MO on a course of detailed examination of his RV. By themselves, I am not persuaded that the protruding screws rendered the RV to be not of acceptable quality, but in the context of the other quality issues, they contributed to the overall picture of poor workmanship. 187 I am not satisfied that Consumer MO reported any faults in his RV to Jayco Sydney in late 2013, as alleged by the ACCC. I find that the first report to Jayco Sydney was on 8 January 2014 by the email from Consumer MO and his wife to which I referred at [122] above, which was followed up in the email dated 11 January 2014, the substance of which was repeated in an email to Jayco Corp dated 2 February 2014 to which I referred at [124] above. As I have indicated, it is relevant to the overall picture that neither of these emails mentioned any roof alignment issues, or any claim that the roof had collapsed in December 2013, or that the door vibrated against the roof. 188 In relation to the second item in the ACCC's particulars relating to Consumer MO's RV, namely the roof collapse in December 2013, I accept Consumer MO's evidence that the roof collapsed as he described, but I am not persuaded that this was caused by any irremediable fault in the RV. As I have mentioned, it was not the subject of any complaint to Jayco Sydney or Jayco Corp in the emails of 8 and 11 January, or 2 February 2014. I do not accept the ACCC's claim that Consumer MO showed photographs of the roof collapse to Jayco Sydney in February 2014. The photographs that were sent by Consumer MO to Jayco Sydney and Jayco Corp in January and February 2014 did not depict any defect in the strut for the roof. The email communications between Jayco Sydney and Jayco Corp at this time do not support an inference that Consumer MO presented photographs in February 2014 of a roof collapse. However, I find that Consumer MO took his RV to Jayco Sydney for assessment in March 2014, and at that point a problem with one of the struts was identified to Jayco Sydney. I make this finding because in the quotation that Mr Gregorovic prepared dated 21 March 2014 (see [139] above), an allowance of one hour for labour was made to replace the near side front riser. In the quotation that RVGO prepared dated 14 April 2014 (see [143] above), under item 13, which was described as a few minor issues, an allowance was made for a clip that was missing on the near side strut tower. While elements of Jayco Corp's case faintly suggested that the problem with the struts might have been caused by user error, Jayco Corp did not put to Consumer MO that he had handled the roof of the RV in a manner that was outside normal use. I find that the failure of the strut occurred within the course of normal use of the RV, and constituted a breach of the guarantee of acceptable quality. 189 In relation to the third item in the ACCC's particulars, I am satisfied that in April 2014 after Consumer MO had returned from an Easter trip to the Hunter Valley with his RV, the strut failed again at his home. However, I infer that Consumer MO must have been able to raise and maintain the roof while away on this trip. I also infer that the problem had not appeared to be so serious that it had prevented Consumer MO from embarking on the trip, which was consistent with advice that he had received from Mr Major of RVGO, who had examined the RV on 8 April 2014 (see [143] above). I find that the second failure was likely a further emanation of the earlier problem with the strut, only on this occasion there was consequential damage, including the tearing of the tent section, and possible misalignment of the other three struts, all of which were removed and replaced by Jayco Sydney in July-August 2014. I find that the second failure of the roof lifting mechanism and the consequential damage during the course of normal use was also the result of a breach of the guarantee of acceptable quality. 190 The fourth item alleged by the ACCC in its particulars comprises the several items that were the subject of Consumer MO's letter to Mr Holman of Jayco Sydney dated 17 August 2014 (see [170] above). I find that most of these items were cosmetic in nature. That is not to say that Consumer MO was not justified in drawing them to the attention of Jayco Sydney. He was entitled to insist that the fit and finish of his RV following the repairs be of an acceptable standard. Most of the items were fixed by Jayco Sydney at modest cost, as the warranty claim document dated 22 August 2014 in the sum of $144.38 evidences (see [177] above). The exception is the 12mm misalignment of the roof over the body when it was in the closed position. I find, by reference to photographs of other camper trailers that were in evidence, that those other camper trailers did not have this misalignment. Those other RVs were the new RVs at Jayco Sydney that Consumer MO photographed, and an RV belonging to Consumer MO's neighbour, which he photographed. Mr Holman stated in his affidavit that he recalled showing Consumer MO four or five similar RVs in the yard of Jayco Sydney to demonstrate that the roof alignment was similar to his. Mr Holman also stated in his affidavit that the misalignment of 12mm was a "very standard difference and within tolerances for that alignment". He stated that it would not cause any operational issues with the RV, and that he would expect to see it on any model of that RV. The ACCC did not challenge Mr Holman's affidavit evidence that the roof alignment was within normal tolerances. I infer that Jayco Sydney, after consultation with Jayco Corp, did not explore what adjustments might be made to improve the alignment, accepting that "nothing could be done". That inference is supported by the limited amount of time that Jayco Sydney recorded in its warranty claim document dated 22 August 2014, namely 1.75 hours (inclusive of 0.5 hours attributed to an administration fee), and in particular the fact that no time was charged in respect of the 12 millimetre misalignment of the roof. 191 The fifth item alleged by the ACCC in its particulars comprises the residual items following the second repair, being the roof alignment, and cracked corner mouldings. In his affidavit, Consumer MO described his dissatisfaction with the corner mouldings following the second set of repairs. He also produced a photograph taken on 12 October 2017, showing a further crack in the corner moulding that he stated commenced shortly after it had been fixed in August 2014. He stated in his affidavit that the corner moulding had no tolerance, so that when he took the RV on the road, the movement caused cracking in the corner moulding. Consumer MO was not challenged about this evidence. 192 I find that the cracks to the corner mouldings were likely the result of manufacturing and design defects in the mouldings. The brochure for the Jayco camper trailers that Consumer MO read stated that for 2013 "all Jayco Camper Trailers feature an innovative new roof", and referred to "the sleek new design" incorporating ABS corner moulds. By December 2013, responsible persons at Jayco Corp, including Mr Murphy, were aware that the corner moulds on its camper roofs were cracking. This is evident from email communications at that time that were tendered. Mr Murphy accepted in cross-examination that the cause of the cracking was predominantly a manufacturing defect. Mr Holman stated in his affidavit that there had been a faulty batch of corner caps at the relevant time. Mr Major of RVGO recorded in his quotation dated 8 April 2014 (see [143] above), "manufacturing of corner moulding, I have discussed this with Gary about the moulding process or material", thereby suggesting a manufacturing issue. Jayco Sydney's warranty claim document dated 21 July 2014 (see [167] above) recorded at item 13 that three corner moulds were found to be cracked.
Was Consumer MO entitled to reject the RV? 193 I find that Consumer MO requested the supplier, Jayco Sydney, to furnish him with a refund or a replacement RV on three occasions. The first occasion was in April 2014 after the second roof collapse in a telephone conversation with Mr Bilbija (see [147] above). The second occasion was upon Consumer MO's attendance at the caravan show at the Rosehill racecourse in April 2014 (see [153] above). And the third occasion was Consumer MO's letter to Jayco Sydney dated 17 August 2014, which was copied to Jayco Corp, and to which I referred at [170] above, in which he requested a full refund. 194 The ACCC submitted that a reasonable consumer would not have purchased the RV had he or she known about all the issues that ensued, and that the RV was not substantially fit for purpose. The ACCC relied on the number of problems with the RV, that it was substantially different in apparent quality from the demonstration RV that Consumer MO had seen at the Rosehill caravan show in 2013, the time it took from early May to early August to effect repairs, and the remaining defects that were alleged, namely the misalignment of the roof and the cracked corner moulding. 195 Jayco Corp submitted that the issues raised by Consumer MO were not manufacturing defects and, in any event, were little more than cosmetic and were easily and cheaply repaired and fixed. Jayco Corp submitted that none was a major failure. 196 The question whether the failure to comply with the guarantee of acceptable quality was a major failure in the case of Consumer MO's RV is a question of fact and degree. As Jayco Corp submitted, many of the defects were, by themselves, minor or cosmetic and most of them were repaired. That observation will become relevant when I come to consider later whether Jayco Corp engaged in conduct that was in all the circumstances unconscionable. However, I have come to the view that the failure to comply with the statutory guarantee of acceptable quality in the case of Consumer MO's RV was a major failure by reason of the cumulative effect of the defects. 197 The RV purchased by Consumer MO was at a price of $27,990. While this was the least expensive of the four RVs the subject of this proceeding, that was reflective of the fact that Consumer MO's RV was a camper trailer, rather than a pop top van. I take judicial notice of the fact that the price paid was about the equivalent of a reasonable small to medium-sized new motor vehicle, and was a significant proportion of the median annual personal income before tax in Australia at that time. At that price point, a reasonable consumer was entitled to expect a commensurate level of quality, including fit and finish. That expectation is consistent with the brochure that Jayco Corp published, and which Consumer MO read, which was calculated to convey the impression that a Jayco camper trailer was a durable, quality product. 198 The combination of defects with the RV had the cumulative effect that the RV as a whole was not acceptable in appearance and finish, and its presentation was not consistent with the impression conveyed by the Jayco brochure. The joinery was substandard, exhibiting poor workmanship such as a drawer not being square, and the problem with the placement of the tap. The bed supports were not durable. Screws were missing from the joinery and from the exterior of the RV. The internal lights were misaligned. Screws that penetrated through the floor of the RV were not sealed, and were accepted by Jayco Sydney as a manufacturing fault. The silicon sealing was not up to acceptable standards. The stitching on the insect screen exhibited poor workmanship. The misalignment of the rear of the RV was further evidence of poor quality control. All these items, and a few more, are referred to in Jayco Sydney's warranty claim document dated 21 July 2014. More seriously, the lifting apparatus for the tent section failed. While Jayco Corp sought to minimise the significance of this failure, it did not put to Consumer MO that he had mishandled the RV, or that the failure occurred otherwise than during the course of normal use. The failure of the strut on the second occasion caused the tent section to tear, and caused other struts to become misaligned, requiring their replacement. 199 Having regard to the unchallenged evidence of Mr Holman on this topic, and his reference to normal tolerances, I am not persuaded to find that the 12 millimetre misalignment of the roof when in the closed position contributed to a major failure of the RV to comply with the statutory guarantee of acceptable quality. However, I am persuaded that the manufacturing and design defect relating to the corner mouldings so contributed. The existence of a manufacturing and design defect in the corner mouldings, and the known propensity of them to crack would, in combination with all the other matters to which I have referred, have had the result that the RV would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. In coming to this conclusion, I have imputed to the reasonable consumer knowledge of the price of the RV, and the claims made in Jayco's brochure for the 2013 camper trailers. I have stated that the reasonable consumer has a degree of tolerance for defects in complex goods such as RVs that might be the subject of repair under the ACL rights, or under a manufacturer's warranty. Jayco submitted that all the defects in the RV were repairable. I am not persuaded that was the case in relation to the cracked corner moulds. But otherwise, Jayco's attitude that all the defects were repairable was a product of its view that almost everything was repairable owing to the nature of the goods, and the fact that they were made from component parts within Australia. But whether the RV was easily repairable was only one permissible consideration under the statutory test for determining whether there was a major failure. The statutory test is sufficiently engaged if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure. Whether the reasonable consumer's level of tolerance for defects that can be repaired is stretched to the point that the goods would not have been acquired is a question of fact and degree. Here, the number and disparate nature of the problems with Consumer MO's RV, and the way that in combination they reflected poorly on the build quality of the RV, exceeded the reasonable consumer's levels of tolerance: see Lord Dunedin's reference to "a congeries of defects" in W & S Pollock & Co v Macrae 1922 SC 192 at 200. In consequence, Consumer MO was entitled in April 2014 to reject the RV on the ground that the failure to comply with the guarantee of acceptable quality was a major failure. 200 In view of the above findings, it is unnecessary that I consider the delay in repairing Consumer MO's RV and whether it contributed to the RV being not substantially fit for purpose. However, for the sake of completeness, I make the following findings. As a result of the failure of the strut for the tent section on the second occasion in April 2014, the RV was substantially unfit for purpose. In April 2014, Consumer MO requested a refund of the purchase price or a replacement RV, but Jayco Sydney determined to repair it. Consumer MO acquiesced in Jayco Sydney's proposal to repair the RV, stating in his affidavit that he felt like he had no other option but to let them try to repair it, apprehending that neither Jayco Sydney nor Jayco Corp would be prepared to supply him with a new RV. Repair of the RV was thus a remedy that was available to Jayco Sydney. Jayco Sydney collected the RV on 7 May 2014, and returned it in early August 2014. There were delays in effecting repairs to the RV. The main cause of the delay was delay in the supply of a new tent section. While some delay in procuring a major item such as a new tent section might be reasonable, I do not consider that a reasonable consumer would regard as acceptable the delay that occurred here. However, I have determined that the failure to complete the repairs to the tent section within a reasonable time was not a ground on which Consumer MO was entitled to reject the RV as being substantially unfit for purpose. That is because by the time Consumer MO requested a full refund by his letter dated 17 August 2014, the tent section had already been repaired, and I do not consider that the remaining items referred to in Consumer MO's letter rendered the RV substantially unfit for purpose for the purposes of s 260(c) of the ACL.
Purchase and delivery of the RV 201 On 25 February 2013, Consumer TB purchased a 2013 Jayco Expanda pop top RV from the dealer, Jayco Sydney. Below is a picture of a Jayco Expanda from its Outback range, copied from a Jayco brochure - 202 There are two relevant features of Expanda vans for present purposes, and which were also present in the RV purchased by Consumer JT, to which I shall come. The first is that the van is a "pop top". The height of the van is somewhat lower than a full sized RV. However, when the van is set up, the roof of the van may be raised thereby increasing the ceiling height. The second feature is that the RV may be expanded by raising panels at the ends of the RV, which are referred to as "lids". The panels then form a rigid roof-like structure over what are referred to as "tents", which are made of canvas. 203 Consumer TB agreed to a purchase price of $38,916, and paid a $1,000 deposit. He borrowed money from his parents to help him pay the remainder of the purchase price, which he paid on 23 May 2013, when he took delivery of the RV at Jayco Sydney. 204 Consumer TB and his family had considerable experience with the Jayco brand. He and his wife had purchased a used 2004 Jayco Expanda in 2010, which they wanted to upgrade to a new model, which would be their third Jayco RV. Consumer TB's parents and also his parents-in-law had Jayco RVs, and his sister was in the market for a Jayco RV. Consumer TB wanted a new RV with a hard lid over the bed ends, as his experience was that the canvas bed ends on his existing RV took a long time to dry after rain in the Canberra winter. Consumer TB undertook research to identify the best RV for his family, including by reading Jayco brochures and speaking to a number of Jayco dealers. He read the Jayco Expanda Caravans and Pop Tops 2013 brochure, which stated in respect of the hard lids on those models, "simply lift up the hard lid and lower the bed (which is sealed tight with our Boltaflex weather-resistant tent material" and "solid fibreglass roof over bed ends". This accorded with Consumer TB's recollection of his conversations with Jayco dealers about the benefits of the hard lids, and what he was looking for in his new RV. In particular, Consumer TB stated in his affidavit that before buying his new RV, he spoke to a salesman at Jayco Sydney, Mr David Thomas, who spoke of the high quality build of the RV and reassured him that the hard lid would provide good weather protection to the bed ends.
May 2013 - initial concerns with the RV 205 Consumer TB stated that after taking delivery of his RV at Jayco Sydney on 23 May 2013, he used it to stay in a national park in Sydney. He stated that on that first night, rain leaked into the RV, causing the mattresses to become soaked. He stated that the following day, on 24 May 2013, he telephoned Mr Thomas of Jayco Sydney to seek advice about his concerns with the RV, namely the leaking, and also a scratch on the side of the RV, and cracks on the bed lids near the hinge. Consumer TB stated that Mr Thomas asked whether he had seasoned the canvas of the RV, which Consumer TB confirmed that he had done, and that Mr Thomas suggested that Consumer TB send him photographs of his concerns with the RV. 206 During cross-examination, Consumer TB was challenged on his evidence that he seasoned the canvas above the bed ends of his RV in accordance with the guidance in the owner's handbook. As I have set out at [80] above, the owner's handbook advised that the canvas be soaked and left to dry completely, twice, before use. During cross-examination, Consumer TB gave evidence that, in fact, he did not follow that advice before using the RV because he sprayed the canvas only once with water on the afternoon that he picked it up, and he was not sure whether it had completely dried before his family stayed in it that night. 207 On 25 May 2013, Consumer TB sent a series of emails to Mr Thomas about his concerns with his new RV. The first email stated - I will send through a few photos. This photo is the cracking on the underside [of] the hard lid. All corners have similar cracking? [That email attached a photo of what appears to be a crack on a hard surface, which I infer was one of the bed lids on Consumer TB's RV.] 208 The second email stated - Hard to see but inside of canvas above beds getting wet from the dripping of hard lid. [That email attached a photograph which does not clearly identify any defect on Consumer TB's RV] 209 The third email stated - Video showing signs [of] the after effect of the rain. It wasn't raining at this point but you can see where it was dripping and pooling. During the rain it was dripping significantly, Enough that I had to keep pushing it up from the inside to get rid of the water that had pooled. The canvas now seems to sag at each corner, more so [at] the front bed. 210 That email attached a short video which was in evidence which depicted a pool of water on the tent section under the hard bed lid. 211 The fourth email stated - Sorry should have added this to the previous emails but the only other issue is that at the rear bed the density of the mattress is completely different between the front section and the back section. So when you lay on the bed you sink on the front edge but it [is] hard on the back part of the mattress. 212 By 27 May 2013, Consumer TB had not received a response from Mr Thomas, so he sent a follow up email, in which he relevantly stated - Just wondering how things are progressing regarding my emails. I am particularly worried about the leaking hard tops as they could also leak when it is stored and with the Canberra weather I don't want the canvas getting wet as it will not dry quickly. Another question; is it normal that the air co makes a faint fan noise after it is turned off. 213 Consumer TB stated that he also spoke to Mr Thomas on the telephone, and that Mr Thomas referred him to the Jayco Sydney service manager at that time, Mr Gregorovic. 214 Later on 27 May 2013, Mr Gregorovic replied to Consumer TB's emails to Mr Thomas, relevantly as follows - Thanx for the emails and photos, not seeing the van in person it's a bit hard to be exact, but going off the pics I'll do my best ... ! 1. The water on top of the front bed section is a common occurrence and it's due to the bed lid sloping towards the caravan directing any rain towards the hinge and running onto the tent section. No Fix. 2. With regards to water dripping down from the ceiling, is very unlikely due to the top section being vinyl not canvas, the marks that are in the pic look to be from condensation, the van need[s] air flow to avoid that. A warm van on a cold night that's fully sealed with people sleeping can and will accumulate condensation. 3. The scratch on the side of the van is a hard one, looks like there's also some silicon there, could it be part of the silicon smear .. ? If not then will require a repair. 4. Cracks at hinge end of the bed lids are a standard item, due to having re-enforcement added in that section, normal flexing causes them. Not structural only cosmetic. 5. The mattress issue could be a foam density issue if both sections of foam are a different colour, more than likely it's just because the back part of mattress is thinner (can't compress as much) and the front is thicker (can compress more with a similar weight) and there is a different feeling because of that. If the two bits of foam are different then can be a warranty replacement. I have noticed that you guys are in the ACT, please give this guy a call (auth Jayco service agent) - David Sullivan Ph: 0414 507 357 Mobile Repairer. Please do not hesitate to contact me or the service agent if you have any further concerns .. 215 Consumer TB stated that when he received that email, he was "pretty gutted", in particular because Mr Gregorovic stated that the leaking bed lid was a common occurrence, whereas he had been reassured before buying the RV that the hard bed lids would provide good weather protection. 216 The following day, on 28 May 2013, Consumer TB replied to Mr Gregorovic, copied to Mr Thomas, relevantly as follows - Thanks for prompt reply. I am concerned about some of your responses. This caravan was designed with a hard lid to protect the bed end from rain and other elements. Both my parents and sister have a jayco expanda with hard lids and have very recently travelled together and experienced heavy rain but did not identify a leaking hard cover as an issue. This is occurring at both ends of the van. We may have been better off keeping my 2004 expanda which used a fly to cover the bed ends and did not result in a leaking van. If the hard lid leaks like it has done in both heavy and light rain then what will it do when we are driving with the rain been [sic] forced towards the hinge under driving pressure? It would result in water coming in and pooling around the bed ends that are only protected by the canvas and would need to be dried out before storage. We purchased this van with the knowledge and guidance from [a] salesman that the benefit of a hard lid was for weather protection which is contradicting your statements. We have spent $40000 on a hard top lid that does not protect us from rain. Again I refer to my family who do not experience the same issues. In regards to the water inside the top section of the bed ends (vinyl) - this was not caused by condensation. The water marks you saw on the pictures were directly below where the water was dripping from the hard lid. This may give you some idea about how much water was leaking. I had to push the top of the vinyl up approximately 5 times throughout the night as it was sagging so much. I am fully aware of the need for a van to be ventilated to reduce condensation, hence why we did and always have done, slept with windows ajar, zip window under awning 50% open, and bed ends with the zips slightly unzipped. I am concerned that cracks are considered a standard item. Again I refer to my family who do not have the same issue? The scratch is not silicon and is in need of repair, although I am concerned that we will be left with some imperfections after repair. Not something that you would expect in a new van. The mattress is also a repair/replacement issue as the foam (although I thought they were meant to be inner sprung mattresses) is completely different from the back to front and is not able to be slept upon. The bed at the front of the van does not have the same issue. I am sorry if i [sic] seem short in my reply but I am obviously concerned and these issues have certainly taken the gloss off our new family purchase. In fact while staying in Sydney we happened to camp next to a jayco salesman who said that the leaking issue should not be happening. I also emailed David asking the question whether it is normal for the air co to make a quiet fan noise when turned off? The only way to stop the nose [sic] is to turn the mains power off. I would prefer to deal with my place of purchase and not jayco Canberra as I have been extremely happy with David and jayco Sydney. So would appreciate your advice on how we should move forward in addressing our vans issues. We love this van and understand that you did not build it. I only wish for these issues to be addressed. 217 Later on 28 May 2013, Mr Gregorovic replied to Consumer TB. Mr Gregorovic stated "I'm just going by the pics supplied and experience", and then made the following comments in the body of Consumer TB's earlier email: (1) In response to Consumer TB's concerns about leaking through the hard bed lids, Mr Gregorovic stated - Without having the van here it's hard to say exactly, could be gaps in the silicon under the hinge, could be loose screws on the lid side of the hinge where water is coming through, Could be…The hard lid is not 100% water tight, have a look at where the locks are and you will see a recess at each lock in the mould where rain can get through while driving…! Just going with what I have encountered/experienced and feedback from the factory in the past. Without water testing the van and knowing that roof part above the beds being water proof (unless you can see some holes in it) it's the only conclusion I have. It shouldn't leak, but there are design constraints that limit how water tight they are. (2) In response to Consumer TB's concern that cracks are considered a standard item, Mr Gregorovic stated - What I have told you is what I have observed and experienced, also backed up by the factory themselves in the past. (3) In response to Consumer TB's concern with a scratch on his RV, Mr Gregorovic stated - Only 2 options, repair or leave as is, your call. (4) In response to Consumer TB's concern with the mattress in his RV, Mr Gregorovic stated - Until someone sees it and reports back to the factory I can't say for sure if its wrong or not. (5) In response to Consumer TB's concern about the noise being made by the air conditioner on his RV, Mr Gregorovic stated - Doesn't sound right so I have sent an enquiry to Coast to Coast about this and will let you know what they come back with. (6) In response to Consumer TB's stated preference to deal with Jayco Sydney, rather than an authorised repair agent in Canberra, Mr Gregorovic stated - You are welcome to bring it back here if you prefer, you would need to make a booking with us first, available bookings start from the 3rd of July. (7) Finally, in response to Consumer TB's conclusion that he only wished for the issues with his RV to be addressed, Mr Gregorovic stated - Can be sorted by us or any other service centre or agent. Please let us know how you want to proceed. 218 Consumer TB responded to Mr Gregorovic, relevantly stating - Thanks for acknowledging the fact that they should not be leaking. The reason I was quite concerned was with your initial response of "No fix". I have spoken with Jayco Canberra and the earliest they can fit us in is on the 10th July - not an option as the holiday that we have planned 219 Consumer TB stated in his affidavit that he was concerned that the issues with his RV would not be addressed before his upcoming three week family holiday in Queensland, which he had booked after finding out the date on which he would take delivery of his RV. 220 On 29 May 2013, Mr Gregorovic sent a further email to Consumer TB, in which he relevantly stated - Just an update…. With regards to the air-con issue, Dometic require the van to go to a Dometic service centre for repairs, possibly faulty PCB.. Because of this we will need the van here for between 2-3 days, the air-con repair is not a "while you wait" job… 221 Later on 29 May 2013, Consumer TB replied to Mr Gregorovic, relevantly as follows - Thanks for this. I appreciate your previous email that has given us some hope that maybe there is a fault with the hard lids and can be fixed. I am happy to bring the van to you and leave it for a couple of days - which would give you time to look at the other issues as well as fix the air co. I was wondering though if it was possible for you to squeeze us in earlier then [sic] the 3rd as we have had a 3 week holiday booked up in Qld since we ordered the van and were made aware of the delivery date. I would be happy to leave it there longer if this would allow you to make the repairs sooner. In your opinion if we repaired the scratch, would there be any imperfections left? 222 Later still on 29 May 2013, Mr Gregorovic replied to Consumer TB, relevantly as follows - Unfortunately I have no space in June.… I would also need the van here for a week, so if possible, if you could drop it off on Sat 29th of June it would then be ready to pick-up on the 6th of July… Just a query, have you at all weathered the canvas bed section since you have had the van..??? Weather causes the stitching to expand sealing up the needle holes from when the canvas was stitched together..!! 223 Also on 29 May 2013, Consumer TB replied to Mr Gregorovic, relevantly as follows - Book me in!!!! We will leave from Sydney to go on our holiday. We had limited time to wet the canvas with the rain in Sydney and then the weather in Canberra which wouldn't allow the canvas to dry and would remain wet for days. In saying that naturally due to the rain the canvas got very wet due to the leaking roof. On the Saturday it was forecast for a sunny day so I sprayed the canvas at both ends. This resulted in the stitch holes shrinking. I would have liked to do this a couple of more times but being in Canberra doesn't allow us this flexibility. We intend on spraying the canvas another 2 times before sealing it and aim to do to [sic] in qld on our holiday in the warmer weather. Did you have any more thoughts about the scratch situation? 224 On 30 May 2013, Mr Gregorovic replied to Consumer TB, relevantly stating - Yes, 1st service can be done ... With regards to the scratch, there won't be any imperfections as in seeing where the scratch was, but the colour of the gel-coat in that area will more than likely be slightly different, a perfect match is impossible because repairing fibreglass is a different process to how it was manufactured.
June 2013 - Jayco Sydney repair works 225 On 27 June 2013, ahead of the scheduled service at Jayco Sydney, Consumer TB emailed Mr Gregorovic, summarising the issues to be repaired by Jayco Sydney - I have listed below the things that need looking at and repairing while the van is with you from this Saturday - as per our previous emails. I had someone ring me today confirming the first service but she wasn't aware of the van needing warranty fixes. • Seal at front top - where the pop up pulls down, does not seal. Gap between top of van and the seal. • The waterproofing in the ensuite is not complete - sealant has not been applied to some areas • Buttons on both under seat sliding doors do not operate properly - they get stuck in • Air co continuously has a fan noise even when turned off • Hard lids leak badly, even when in storage and locked up. When it rains they leak and when it is being washed they leak • Scratch - I would prefer to leave as is because I do not want any colour variation • Rear bed has different density foam/inner spring from front to back - unable to be slept on. See you Saturday. I will be driving from Canberra so I may not be there until after 9.00am. 226 The following day, on 28 June 2013, Mr Gregorovic thanked Consumer TB for his email. 227 On Saturday, 29 June 2013, Consumer TB left his RV at Jayco Sydney for repairs to be conducted. 228 On Tuesday, 2 July 2013, Consumer TB sent an email to Mr Gregorovic, seeking an update on the repairs to his RV - Just wondering how things are going with the van? I was also wondering if you could inspect the cracks in the hard lid as we previously discussed. They were the ones in each corner of the top section where it attaches at the hinge. You had previously said that this is normal but just wanted your knowledgable eyes over this. We want to try and pick the van up on Friday. What would be the earliest that we could pick it up? 229 The following morning, on 3 July 2013, Mr Gregorovic replied to Consumer TB, relevantly stating - The van is almost complete, I will get the guys to fill the cracks (cosmetic) on the bed lids, so that they aren't visible. The only thing we still need to get done is the air-con, the mobile technician is coming on Friday morning to check/fix it. Once he is done I will give you a call and set a pick-up time with you. 230 Consumer TB replied to Mr Gregorovic, to finalise arrangements for picking up his RV - Do you think we would be safe to say that the air co would be done by about 3ish? We are just trying to plan ahead in regards what time to leave Canberra and thinking it would be best to leave St Mary's [Jayco Sydney] before the Friday afternoon traffic. 231 On 5 July 2013, Consumer TB collected his RV from Jayco Sydney. There is relatively limited documentary evidence before the Court in relation to these repair works. There is no complete copy of any warranty claim issued by Jayco Sydney to Jayco Corp. There is, however, a screenshot of what appears to be part of Jayco Sydney's digital "Service Control Centre" record in relation to Consumer TB's RV. That screenshot includes an entry for repairs stated to have a "Date In" and "Date Out" of 29 June 2013, with a table of partially populated fields in relation to those repairs, which relevantly includes the following items - (1) "1ST SERVICE SINGLE"; (2) "SEAL AT FRONT WHERE P [screenshot cuts off]"; (3) "CUSTOMER REPORTS SEA [screenshot cuts off]"; (4) "Air con."; (5) "BED LIDS LEAKING BADLY [screenshot cuts off]"; and (6) "NEW MATTRESS TO BE OR [screenshot cuts off]". 232 Consumer TB stated in his affidavit that he was not happy with the repairs to his RV, as he felt that the issues had not been addressed. Consumer TB gave evidence that repair work was still being done when he arrived to collect the RV, and that when he expressed his frustration that the works were not done, Jayco Sydney provided him with a privacy screen for the RV free of charge.
July 2013 - trip to Queensland 233 After collecting his RV from Jayco Sydney, Consumer TB and his family travelled to Queensland. Consumer TB stated that he encountered numerous issues with the RV during this trip. He stated that his family did not use the ensuite because they were worried about the walls delaminating, that they did not use the air conditioner because the motor was constantly running, and that there were ongoing problems with leaking over the bed ends. Consumer TB stated that at one point when they were on the Sunshine Coast, the van was leaking so much that he purchased some plastic and put rivets in it to try to protect the bed ends from the rain. He stated that his family got little sleep on the holiday because their mattresses were soaked, and that it was not a pleasant experience at all. 234 On 8 July 2013, Mr Manning authorised new mattresses to be sent to Jayco Canberra to be installed on Consumer TB's RV upon his return home. It appears that this occurred because Consumer TB contacted Mr Gregorovic of Jayco Sydney about the ongoing leaking over the bed ends of the RV, and Mr Gregoroic in turn contacted Mr Manning for authorisation to order new mattresses for the RV.
November 2013 - Jayco Canberra repair works 235 Consumer TB stated that after Jayco Sydney failed to repair the issues with his RV, he decided to have further repair works undertaken at Jayco Canberra, which was nearer to his home. 236 On about 13 November 2013, and on about 28 November 2013, Jayco Canberra conducted repairs on Consumer TB's RV. There is no documentary evidence before the Court, such as a copy of any warranty claims issued by Jayco Canberra to Jayco Corp, in relation to these repair works. Consumer TB stated that by this time, he was very frustrated and disappointed by the ongoing issues with his RV.
February-March 2014 - correspondence with Jayco Canberra and Jayco Corp 237 On 5 February 2014, Consumer TB sent an email to Mr Justin Wright of Jayco Canberra, at the email address "sales@jaycocanberra.com.au", which set out his ongoing concerns with his RV despite Jayco Sydney and Jayco Canberra's earlier repair works, and also raised the prospect of a significant repair or a replacement RV - Hi Justin, I was just wondering if you have received the part for our air co? You may recall trying to fix it at the end of last year, without luck. We have also experienced numerous other problems with the van following our most recent short trip. The ensuite walls (fake tiling) have come [loose]. Which allows about a 5mm gap for water penetration around the toilet. The back bed canvas is also wearing through, there is a hole on the left side. The outside toilet door (which I have shown you is now deteriorating and shows more imperfections. The inside back floor (near fridge - as shown to you) gets covered in aluminium shavings and a black dust on every trip. We have kept one example in a zipped lock bag as an example and left the dust on the floor. A big problem when you have a 3 and 5 year old sleeping and playing just above. The vinyl pop top that you said that you re-glued was never stuck back into place. Even when I returned home and inspected the work. This is the piece that was holding the wires coming up from cupboard space. I also need to mention the damage that was caused to the front bottom drop down bed - exterior. When I picked it up I pointed out scratch marks that were not there at drop off. Once home I pulled the bed out and the female mattress clip was broken and the mattress was completely removed - not sure why? I can put the damage down to the female clip being left outside while bed end was pushed back in. Our bed ends are still leaking profusely when raining. We do not get any sleep when it is raining as we have to push the canvas up every 10 minutes to release the gathering water and stop the pooling. The punctured back bed end canvas has also allowed water leaking internally due to the hard lids leaking - not fun changing wet sheets in the middle of the night especially when it is at the kids end. With everything that has happened to our van with less than 2000km under its belt I need to know who to talk to in regards to significant repair and or replacement. I understand that we did not purchase the van from you but you are now our repair, service and warranty agent. When I first spoke to you you were adamant that our service experience would be better at Jayco Canberra than what we had experienced at Sydney. So far we have had the van in Sydney for 5 days and you have had the van for 2 separate days without any repairs been [sic] made. If anything more damage has been incurred while under your care. I am confused as to why I have not been contacted about the air co issue. We were left with a van that has an air co fan running constantly when plugged into power. The noise at night has been quite annoying for our young kids and has caused disruption to sleep. Can you please advise me of my options ASAP as I am not willing to drive the van any longer with concerns of other issues. We have had to stop using the shower due to concerns of water penetration around the toilet which may result in long lasting issues - far beyond our 1 year warranty period. We purchased a new van and spent a lot of money in securing our perfect van. Unfortunately our new van is far from perfect and could be described as a "lemon". While these are my major concerns there are numerous other issues, ranging from top cupboard door hinges coming lose [sic] and drools [sic] falling out - even after your repair. This was a purchase that we made that we anticipated would last [us] many years of holidaying with our kids. If things continue at the current rate we will be left with an unroadworthy van in a very short period of time. Please understand my frustration as this investment has caused us no end of stress. 238 The following day, on 6 February 2014, Ms Navilla Hossain of Jayco Canberra acknowledged receipt of Consumer TB's email, and stated that she had forwarded it to Mr Wright, who would contact Consumer TB. Consumer TB replied to Ms Hossain, relevantly as follows - Thanks for your reply. I missed a call from jayco today and when I called back they said you were on lunch and that the air co part was ordered and when it arrived they would call me to book me in. Obviously I have real concerns about the van and a lot more [than] just the air co. Can you please reply to my detailed email about how my concerns will be addressed. 239 I find that Jayco Canberra did not provide a substantive response to Consumer TB's ongoing concerns with his RV, or his enquiry about to whom he should talk in relation to a significant repair, or a replacement RV, until later in February 2014 after Consumer TB raised his concerns with Jayco Corp. 240 On about 24 February 2014, Consumer TB telephoned Jayco Canberra and spoke to a receptionist, Ms Barbara Barrett, about speaking to someone in relation to his ongoing issues with his RV. Ms Barrett provided Consumer TB with Mr Manning's email address. 241 On 27 February 2014, Consumer TB sent an email to Mr Manning, about his ongoing concerns with his RV, and his dealings with Jayco Sydney and Jayco Canberra - I spoke with Barbara [Barrett of Jayco Canberra] on Monday explaining some real concerns with the service and condition of my van which I purchased in May of last year. Since purchasing the van from Sydney Jayco we have experienced various issues that both Sydney and Canberra Jayco have failed to address. Please refer to my email (at the bottom of this email) [being a reference to Consumer TB's email to Jayco Canberra dated 5 February 2014, set out at [237] above] detailing SOME of my major concerns and the correspondence I have had with Jayco Canberra. I would appreciate your advice on how we can move forward in addressing these issues as I am currently paying rego and insurance on a van that we are unable to use due to the fear of long lasting issues. This van has been no end of stress for me as I purchased a new van so that we could travel as a family for an extended period of time. If things continue at the current rate I will be left with something completely un-roadworthy and not worth the over $40k that I spent on it. While I have typed this email I have heard from Jayco Canberra and have the van booked in on the 13th March. This is to try and fix the Air co issue for the third time - constant fan noise when plugged into mains. I have suggested to them that they need to inspect the other issues so they can fix them on the 13th, otherwise the van will continue to be off the road? 242 Later on 27 February 2014, Mr Manning forwarded Consumer TB's email to Mr Roy Lustri of Jayco Canberra, copied to Consumer TB, and relevantly stated as follows - Please see [owner's] email below. I am not sure what is still to repair out of the list below. If you need parts; please order them ASAP. Refer to me if you need to so I can authorise them. For example if a new pop top tent is needed. Please order. If the Bed end tents are leaking; please order new bed end tents. Please quote up the repairs if possible before the booking you have on the 13/3/2014 Do you know how much time the van has been off the road exactly for these problems. Jayco may look at extending the warranty. Can you please provide me the chassis number so I can make some notes here. 243 Later still on 27 February 2014, Consumer TB replied to Mr Manning, relevantly as follows - Thanks so much for getting back to me so quickly. For the first time we feel that things will work out ok. The chassis number is R49265. The van was last used over xmas for a whole family holiday but we didn't use the ensuite due to the fear of water penetrating around the toilet. Prior to xmas we had only used it 3 times as we were concerned that we were making things worse by simply driving or using the air co. Wasted van when it is just sitting in the driveway! 244 In keeping with the tone of that email, during cross-examination, Consumer TB accepted that Mr Manning's email was a proper and prompt response to his complaint. 245 On 28 February 2014, Consumer TB telephoned Jayco Canberra to speak to Mr Lustri to ask if Jayco Canberra could inspect his RV so that any required parts could be ordered before his scheduled repairs on 13 March 2014. The Jayco Canberra receptionist told him that Mr Lustri would telephone him back, but he did not do so. The same occurred on 4 March 2014. 246 Later on 4 March 2014, Consumer TB sent an email to Mr Manning, in which he reiterated his frustration with his RV and his dealings with Jayco Canberra, and asked Mr Manning to investigate providing him with a refund of the money that he paid for the RV - Thanks again for taking up my concerns so quickly. Unfortunately when I called jayco Canberra Friday morning (to see if they could possibly look at my issues prior to my booking date, allowing time to order parts) the receptionist said that Roy would call me back that day. Still didn't hear anything by this afternoon so called back and the receptionist said the parts manager would call back before the end of the day because Roy had been busy training up someone. Again no-one called???? I have had enough as I have not had any positive dealings with jayco, apart from your email. We wanted to go away this long weekend but can't due to the issues with the van. I am sick of chasing this up and cannot handle the disappointment and frustration any more. As much as I hate pushing problems elsewhere… Where else do I go when I don't get the answers I deserve. I have been dealing with all these issues since the first night we slept in the van which was the day of purchase. Can you please investigate jayco refunding the van and I will return it to you ASAP. 247 The following day, on 5 March 2014, Mr Manning responded by email to Consumer TB, copied to a Jayco Canberra service account, and blind-copied to Mr Bilbija of Jayco Sydney, in which he relevantly stated - I just spoke to the receptionist at Jayco Canberra. She tells me you were speaking to the workshop manager there yesterday. I am not sure of the outcome. I have asked her to follow this up with you about a booking if this has not been done already. I cannot help you with a refund as per your email request. This would need to be done via your selling dealer as they have your sales contract. I hope it does not come to that for you. 248 Mr Manning stated in his affidavit that while he did not recall sending that email, it was consistent with the fact that he did not have personal authority to approve refunds, and that his role was to arrange for a customer's selling dealer to assess their RV and to provide a report, so that he could escalate any request for a refund to Mr Morgan. During cross-examination, Mr Manning accepted that his email to Consumer TB did not disclose that if Consumer TB requested a refund from Jayco Sydney, as directed in his email, then Jayco Sydney would confer with Jayco Corp about the request. During cross-examination, Mr Manning was challenged on his evidence that his statement in the email that "I cannot help you with a refund" was a reference to his own personal authority, in circumstances when it would be understood by Consumer TB as the position of Jayco Corp. To that extent, I do not accept Mr Manning's construction that his email was limited to a reference to his own personal authority, as I consider that a fair objective reading of the email conveys that Mr Manning was expressing a position on behalf of Jayco Corp. During cross-examination, Consumer TB accepted that this response from Mr Manning, as with his earlier response to Consumer TB, was prompt. 249 Consumer TB stated in his affidavit that after he received Mr Manning's email, he contacted Jayco Sydney to enquire about receiving a refund of the money that he paid for the RV. Consumer JT did not identify to whom at Jayco Sydney he spoke on that occasion. He stated that Jayco Sydney told him that he should contact Jayco head office, which I treat as a reference to Jayco Corp. Consumer TB was not challenged about this evidence in cross-examination, and for this reason and the fact that it was not implausible, I accept it. 250 Mr Bilbija gave evidence that he was very surprised when he received the copy of Mr Manning's email of 5 March 2014, because Jayco Sydney had not had much involvement in Consumer TB's enquiries prior to that point, which had largely been handled by Jayco Canberra. Mr Bilbija later forwarded Mr Manning's email to several of his staff at Jayco Sydney to ask if they had any information about Consumer TB's situation. 251 Later on 5 March, Consumer TB replied to Mr Manning, relevantly as follows - Thanks again for getting back to me. Unfortunately the information that has been provided from Navilla [the Jayco Canberra receptionist] is not accurate. As per usual I ring her and she attempts to put me through…no one is available and she then says they will call back…No one does. She only responded to me this morning due to the fact that I left a message on Jayco Canberra's message bank yesterday after no one got back to me. She suggested that someone tried but couldn't get through - I was sitting on my phone waiting and phone records would suggest otherwise. This seems to be a regular excuse when I call asking for a response. Sorry it sounds like I am whinging and I guess I am but again today after actually having a conversation with a new service manager, he advises me that he will have to investigate because he doesn't know the history. I am left back at square one. 252 Mr Manning replied, relevantly as follows - Please keep in touch if this doesn't get any action today for you with a booking. 253 On 12 March 2014, Consumer TB again emailed Mr Manning, relevantly stating - Unfortunately it has now been a week since I eventually made contact with the new service manager at Jayco Canberra. He said that he would have to look at my email and get back to me about all my concerns. I have not had a phone call. As suggested in previous emails all I wanted was to get a pre-inspection prior to my service date (which is tomorrow). If this happened I would have thought that jayco could have ordered the necessary parts. I guess this will mean that my van will be off the road again until they get organised. Whenever I call the receptionist just jays [sic] they have been extremely busy. I get that, but this also suggests that their time is more valuable than my time and the time that it takes me to continually take this van to places to NOT get fixed. 254 Mr Manning forwarded that email to Mr Lustri of Jayco Canberra, copied to Consumer TB, and relevantly stated - Please call owner urgently to discuss bookings and parts pre-order. 255 There is no evidence as to whether Mr Lustri, or anyone else from Jayco Canberra, contacted Consumer TB before his scheduled service the following day, on 13 March 2014. I note also that there is no reference in Consumer TB's emails to Mr Manning of 5 March or 12 March 2014 to any request that he made to Jayco Sydney at that time for a refund or a replacement RV, although I have accepted that he did (see [249] above).
March 2014 - Jayco Canberra repair works 256 On 13 March 2014, Consumer TB delivered his RV to Jayco Canberra for the scheduled repair works. For a week between 13 March 2014 and 20 March 2014, Consumer TB's RV was at Jayco Canberra for repair works to be completed. 257 On 20 March 2014, Jayco Canberra produced a warranty claim, which set out the repair works performed on Consumer TB's RV. The warranty claim stated that the repair works required a total of 2.10 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and the cost was $157.50 in labour and $12.45 in parts, for a total cost with GST of $186.95. The warranty claim document included seven line items of repair works, which were - (1) an item which stated "Water Leak" as the reason, with the description "WARRANTY WORK Fitted foam around bed ends hard lid to stop water leak"; (2) an item which stated "Poor Workmanship" as the reason, with the description "WARRANTY WORK Aluminum [sic] fragment coming through gap next to fridge. vacuumed and cleaned"; (3) an item which stated "Poor Fit" as the reason, with the description "WARRANTY WORK Aligned drawer runner under the couch"; (4) an item which stated "Poor Fit" as the reason, with the description "WARRANTY WORK Adjusted over head cupboard door catches and tightened hinges"; (5) an item which stated "Poor Fit" as the reason, with the description "WARRANTY WORK Refitted loose tap on A-frame. Other is water tap"; (6) an item with stated "Poor Fit" as the reason, with the description "WARRANTY WORK Removed & repositioned fridge cover, not aligned"; and (7) an administration fee. 258 The warranty document records that Mr Morgan of Jayco Corp approved the warranty claim on 12 June 2014. This can be reconciled with Mr Morgan's evidence to which I refer later that he had no recollection of any dealings with Consumer TB on the basis that warranty claims at a cost below $1,000 were automatically approved. The relevant fact is that Jayco Corp approved the claim.
April to May 2014 - Jayco Canberra repair works 259 On 29 April 2014, Consumer TB sent an email to Mr Wright, copied to Mr Manning, in which he relevantly stated - Just touching base to find out where we are up to with the parts that have been ordered for my van. After my last visit you said it should take about 2 weeks for parts to come in but I have received no further updates and it has now been significantly longer the [sic] 2 weeks. I would have expected that after all of my issues that I would have been given regular updates. I am also disappointed to inform you that after my last service that was booked in to further investigate my concerns and also repair the air conditioner, that the air co has not been repaired. There is still the same fan noise coming from the air co after the van is plugged in to mains - even when the air co is switched off. The part that was replaced was obviously not the problem. I ask why was this not tested on site? It was making the noise as soon as I plugged [in] the van upon returning home. This is now the 4th time the van has been booked in for this issue, without a resolution? Please refer to one of my initial emails below [being a reference to Consumer TB's email to Jayco Canberra dated 5 February 2014, set out at [237] above]. As I have said countless times. This van is a dud and even after all my efforts of getting things resolved I do not have a result. I purchased this van in May 2013 with warranty expiring in a couple of days. I have also paid out significant money for rego and insurance without being able to use the van with confidence it will not fall apart. I have cc'd this email to Peter Manning as I believe it is time for Jayco to reflect on this situation and come up with a plan that will address all of these issues without any further delays, as I am sorry to say, but I do not believe all of the vans issues can be fixed to a standard of a new van. Please get back to me ASAP. 260 Later on 29 April 2014, Consumer TB sent another email directly to Mr Manning, stating "please refer to my below email to Jayco Canberra regarding my caravans [sic] unresolved issues", which forwarded a copy of his earlier email to "sales@jaycocanberra.com.au", which he had already copied to Mr Manning. During cross-examination, Consumer TB stated that he wanted to involve Mr Manning because by this time, he had found him quite good to work with. The next day, on 30 April 2014, Mr Manning sent an email to the "Jayco Canberra Service" account directed to Mr Lustri, and copied to Consumer TB, in which he relevantly stated - Hi Roy Please call owner ASAP to inform him about his parts and the A/C problem he has still got. Please have this one sorted out ASAP. Warranty will not be a problem for the Jayco manufacturing faults. I worry the A/C may come up as an issue with the van being out of warranty now. I do not know a chassis number to refer to you. 261 Around this time in mid-2014, Consumer TB again took his RV to Jayco Canberra for further repair works. Jayco Canberra produced a warranty claim, which set out the repair works performed on Consumer TB's RV. There is only an extract of this document in evidence before the Court, which does not include the total hours of labour or cost of the repair works. The extract before the Court shows 15 line items of repair works, which were - (1) an item which stated "Broken" as the reason, with the description "REPLACED BROKEN HANDLE ON REAR STORAGE SEAT"; (2) an item which stated "Broken" as the reason, with the description "REPLACED BROKEN SHOWER DOOR LATCH"; (3) an item which stated "Poor Workmanship" as the reason, with the description "BUFFED FRONT OF THE VAN WERE [sic] THE PAINT WAS ROUGH. OTHER IS FOR FRONT BODY"; (4) an item which stated "Water Leak" as the reason, with the description "CUSTOMER CLAIMS THERE IS WATER LEAK FORM [sic] CANVAS, WATER TEST NO LEAK FOUND"; (5) an item which stated "Poor Fit" as the reason, with description "ADJUSTED DRAWER RUNNERS AS THEY WERE NOT SQUARE"; (6) an item which stated "Poor Fit" reason, with description "FRIDGE DOOR RUBBING ON LOWER PANEL, ADJUSTED HINGES ON THE FRIDGE DOOR"; (7) an item with stated "Poor Fit" as the reason, with the description "CHECK A/C VIBRATING, FOUND LOOSE FAN DECK BOLTS. TIGHTENED"; (8) an item which stated "Poor Fit" as the reason, with the description "DOOR HANDLE NOT OPERATING CORRECTLY AND DOOR LOCKS FROM INSIDE, ADJUSTED & LUBED DOOR HANDLE AND LOCK"; (9) an item which stated "Poor Fit" as the reason, with the description "THE LOCKING MECHANISM OF THE TOILET DOOR IS NOT OPERATING CORRECTLY, REPAIRED, TESTED OK"; (10) an item which stated "Poor Fit" as the reason, with the description "ADJUSTED AWNING & TIGHTEN LOOSE SCREWS"; (11) an item which stated "Poor Fit" as the reason, with the description "REALIGNED GAS BRACKET TO FIT SECURING BOLTS"; (12) an item which stated "Poor Quality" as the reason, with the description "REPLACED RUSTING ROOF LATCH &CLAMP"; (13) an item which stated "Water Leak" as the reason, with the description "REMOVE & REFIT LEAKING WATER FILLER CONNECTION"; (14) an item which stated "Poor Fit" reason, with the description "REALIGNED ROOF SO CLAMPS ALIGN"; and (15) an administration fee.
June 2014 - Jayco Canberra repair works 262 In June 2014, Consumer TB again delivered his RV to Jayco Canberra for further repair works. On 25 June 2014, while his RV was at Jayco Canberra, Consumer TB sent an email to Mr Wright, at the address "Jayco Canberra Sales", in which he relevantly stated - Hi Justin Can you please advise me on the progress of my van. We have a holiday booked in for the start of the school holidays and need the van completed by no later than 4th July. Also I thought I would take this opportunity to as [sic] and remind you about our conversations about other issues that do not appear on the list: 1, Has Jayco extended the warranty on the van. 2. What are Jayco doing in regards to compensation for the van being of [sic] the road for extended periods while we still pay rego and insurance. 3. You were going to investigate the wood trimming peeling in the ensuite. 4. You were also going to investigate replacing the scratched decal on the side of the van. 5. I was also checking to see if the van has been plugged in to power (as discussed), as I do not want my batteries left flat for extended periods of time. 6. Quote - I was also wondering if you could provide a quote for getting an Anderson plug mounted to the exterior of the van - I have recently purchased solar and need to get the power to the batteries. 263 Later on 25 June 2014, Ms Hossain of Jayco Canberra forwarded Consumer TB's email to Mr Wright's own email address. 264 The following day, on 26 June 2014, Mr Wright responded to Consumer TB, relevantly as follows - I have sent this email through to Jayco head office for them to review about the extension of your warranty and compensation with the rego and insurance of your caravan. Your caravan is at the fibre glassier at the moment having the chip next to the main door repaired and should be back tomorrow. All other work has been completed and once it comes back to us it's just a matter of having it cleaned and detailed. Available for pickup. Monday or Tuesday but you will be called when the van is ready. Also the timber panel edge in the bathroom was replace [sic] when the shower walls were done. The large green sticker for the offside can be ordered but will take a while to come as Jayco Melbourne [which I take to be a reference to Jayco Corp in Dandenong] will be closed for two weeks. Cost of the sticker is $125.00 as it has to be made to order because of the change this year with the vans. We can install an Anderson plug from your battery to the front of your van so you can plug your solar into it or if you decide at a later date you could install an Anderson charge plug on your car to charge the battery that way. Cost of the Anderson plug installed to your van would be $350.00 including parts. 265 Consumer TB responded to Mr Wright, relevantly stating - Thanks Justin. I will hold off on the sticker and the Anderson plug for the time being. I appreciate you providing the quotes and will investigate these as options in the future. 266 Mr Wright forwarded that email to Mr Manning, copied to Mr Lustri, and requested, "Please advise on customer email below about extending of warranty and compensation." 267 Later on 26 June 2014, Mr Manning and Mr Wright exchanged emails confirming the chassis number of Consumer TB's RV, providing further background on the concerns with Consumer TB's RV, and about extending the Jayco warranty. Mr Wright stated - All it really comes down to is that his van was here for a week previously and just on 3 weeks now by the time he picks it up. Comes down to 1 month for repairs total but really only 1 week when he was still in warranty as he was booked in this time after warranty had finished. Please take note that he has not bought the van from us and has never had a service done and only has come here for warranty. When the customer picks up his van next week I will talk to him about what he considers as an extended warranty and will get back to you. 268 Mr Manning replied - I have extended warranty here by 1 month. Now makes the Jayco warranty expire 23/6/2014. All repairs have 12 months warranty after their completion anyway. 269 On 26 June 2014, Jayco Canberra finished its repairs to Consumer TB's RV. Jayco Canberra produced a warranty claim, which set out the repair works performed on Consumer TB's RV. The warranty claim stated that the repair works required a total of 21.45 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and that the cost was $1,608.75 in labour and $1,509.41 in parts, for a total cost with GST of $3,429.98. The warranty claim document included the following line items of repair works - (1) an item which stated "Damaged" as the reason, with the description "En-suite walls bubbling, gaps in walls and wood frame damaged, replaced walls. Invoice attached"; (2) an item which stated "Damaged" as the reason, with the description "Scratches on fiberglass upon delivery from Baywater Jayco, repaired by Gozzard, sublet attached"; (3) an item which stated "Damaged" as the reason, with the description "Roof tent section is split where cables come through so replaced the tent but it did not have power cord cover, tent was sent to J & B Canvas and they did sew power cord cover to pop top. Sublet attached"; (4) an item which stated "Damaged" as the reason, with the description "Replaced rear tent section, Torn where connected to ali strip, Authorized Peter Manning. Invoice attached"; (5) an item which stated "Discoloured" as the reason, with the description "Replaced toilet door baggage, discoloured. Invoice attached. Other is for door baggage"; (6) an item which stated "Broken" as the reason, with the description "Replaced broken straps and buckles that hold the mattresses for Expanda bed. Invoice attached"; (7) an item which stated "Part Missing" as the reason, with the description "Replaced buttons on the couch, come away. Invoice attached"; (8) an item which stated "Faulty" as the reason, with the description "Replaced matters [sic], too high. Invoice attached"; and (9) an administration fee. 270 The document records that "user andream" approved the warranty claim on 14 August 2014. Again, this appears likely to have been a reference to Ms Andrea McCann, an employee in the warranty division of Jayco Corp, and given that the cost of the claim was above $3,000, the Jayco Corp process would have required approval from Mr Murphy or another senior Jayco Corp employee (see [106]-[107] above).
July 2014 - trip to Nelson Bay, Caravan Wizard repair works, and correspondence with Jayco Corp and Jayco Sydney 271 In July 2014, Consumer TB used his RV for a family holiday to Nelson Bay on the coast of New South Wales. He stated that during this trip, there were major water leaks near the ensuite inside the RV, and a loss of power to one side of the RV, which worried Consumer TB, so he decided to disconnect the water mains. 272 Around 14 July 2014, Consumer TB telephoned Jayco Canberra, and spoke to the receptionist, Ms Barrett, about the issues occurring with his RV. On 14 July 2014, Ms Barrett sent an email to Mr Manning, in which she relevantly stated - Please ring [Consumer TB] on [number]. Has a leaking van - when on mains pressure - said leaks from one end of the van to the other end Currently in Nelsons Bay said one and half hours drive from Newcastle He said all the wiring is wrong and many other issues He is left with a second hand caravan - wants the van replaced Also said he has been communicating with you via email is not happy to do this anymore wants to talk to you in person or your senior manager 273 I infer that Mr Manning then telephoned Consumer TB, however there is no direct evidence of the conversation from either Consumer TB or Mr Manning. I infer from the following email from Mr Manning to Mr Bilbija and Mr Austin that was sent later on 14 July 2014 that during the telephone conversation Consumer TB requested a refund or a replacement RV, and that Mr Manning referred him to Jayco Sydney - Owner will be calling you about money back or a new van. He has had numerous problems with this van. The latest being a major water leak from I believe to be the water inlet. It has pooled up in a wiring junction box. Certain power circuits don't work and he is very scared of 240v elect shock now. He is very disillusioned with Jayco Sydney and Jayco Canberra with his experience with both parties let alone the van problems. He will try calling you today. If you would like to call him his mobile phone number is [number]. 274 Mr Manning stated in his affidavit that while he could no longer recall sending that email, he should have noted that the junction box in Consumer TB's RV was 12 volts, and not 240 volts, and that the leak would have done no more than trip the circuit, either by blowing a fuse or activating a circuit breaker. Also, Mr Holman stated in his affidavit that the electrical system in Consumer TB's RV was only 12 volts, and that it was not a safety concern. 275 Mr Bilbija forwarded Mr Manning's email of 14 July 2014 to Ms Judy Guy, who was a senior advisor employed by Jayco Sydney. Mr Bilbija stated that he did this so that Ms Guy would telephone Consumer TB to ascertain the extent of the issues that he was experiencing with his RV. 276 On 15 July 2014, Jayco Sydney arranged for Mr Chris Dyer of Caravan Wizard to attend Consumer TB's RV on site at Nelson Bay in response to the report by Consumer TB of a water leak, and an electrical failure. My Dyer could not replicate the water leak, and in relation to the electrical failure, identified some blown fuses. After attending the site, Mr Dyer sent an email to Ms Guy of Jayco Sydney, with his assessment of Consumer TB's RV - As requested I visited mr [TB] today, Tuesday the 15th of July, at Shoal Bay caravan park [near Nelson Bay] to see what I could do to help with an internal water leak. The first task was removing the shower flick mixer mounting panel to inspect the fittings. There was no obvious sign of water back there. The 12mm John Guest hose was pushed into each fitting. Then the removal of the bathroom basin panel from the toilet unit to inspect the fitting there. There was no obvious sign of water there. The John Guest hose was given a push tighten. With both panels removed the mains pressure was turned to full volume. Neither visible fittings were leaking. After 10 minutes of pressure there was no sign of water. Possible that one of the hose fittings was not pushed home 100% and the angle at which it was sitting caused a leak. When removed from its position the angle may not have been present. Both panels were screwed back into place and areas around inspected for water after reassembly complete. Neither panels were resealed as it was made apparent to myself that the van was going into a workshop for warranty repairs at the end of this trip in two days time. Total time on job 30 minutes. The second task was testing fuses to discover as to why some 12v items on the kitchen side were not working and why the 12volt socket under the lounge was not working. Two 10a fused [sic] were replaced, problem solved. Total time on job 6 minutes. Hope this helps out. Much of a non event but at least the customer could continue their holiday with full use of their van. 277 Consumer TB stated in his affidavit that around this time he telephoned Jayco Sydney and again requested either a replacement RV or a refund of the money that he paid for his RV. In his affidavit, Consumer TB stated that he thought he spoke to Mr Holman. An email from Ms Guy to Mr Bilbija sent on 22 July 2014, referred to at [280] below, supports an inference that Consumer TB spoke to Ms Guy at about this time concerning a refund or replacement RV, but the email also supports an inference that at about this time there was more than one request by Consumer TB to Jayco Sydney for a replacement or refund. 278 There is conflicting evidence about the alleged conversation between Consumer TB and Mr Holman at around this time. Consumer TB stated in his affidavit that he spoke to Mr Holman, and that Mr Holman, on behalf of Jayco Sydney, "just said 'no'" to his request for a refund or replacement, and said that that the decision had to be made by Jayco Corp. Consumer TB also stated that Mr Holman only offered further repairs on his RV, and said that Jayco Corp senior management had offered to pay for the RV to be transported to the Jayco Corp factory in Dandenong for those repairs to be conducted. Consumer TB stated that at the conclusion of this conversation, he arranged to take his van to Jayco Sydney for an assessment. In response, Mr Holman stated that he did not recall speaking to Consumer TB at this time, and that he did not believe that he advised Consumer TB that he would not receive a refund or replacement RV. Mr Holman stated that he would not have given that advice because he did not have authority to approve or deny a customer's request for a refund or replacement, and because Jayco Sydney and Jayco Corp's practice was to require RVs to be brought in for assessment before any decision about a refund or replacement was made. Mr Holman stated that he recalled various conversations with Consumer TB in which he made statements to that effect. During cross-examination, Mr Holman was challenged on this evidence, and he affirmed his evidence that he did not recall this alleged conversation with Consumer TB. 279 I accept Mr Holman's evidence that it was unlikely that he would in an unqualified way reject Consumer TB's request for a refund or replacement RV at this time. Having regard to all the circumstances, I consider it more likely that Mr Holman would not have refused Consumer TB's request for a refund or replacement without assessing the RV, which makes common and commercial sense. When this proposition was put to Consumer TB in cross-examination, he said that he could not comment. Furthermore, Consumer TB's reference in his affidavit to Mr Holman stating that senior management had offered to pay for the RV to be transported to Melbourne for further repairs suggests that any such conversation occurred after Jayco Sydney had assessed the RV, and after Jayco Corp had offered to effect repairs in Melbourne. 280 On 22 July 2014, Ms Guy sent an email to Mr Bilbija, in relation to Consumer TB's ongoing concerns with his RV, his demand for a refund or replacement RV, and arrangements for further repairs at Jayco Sydney - I spoke to [Consumer TB] this morning in regard to bringing his van back for assessment of repairs already carried out on his van and moving on to have these items repaired. He hasn't changed his stance from previously when he wanted either a replacement van or a refund. He would rather bring his van to us personally rather than have it picked up so I have booked him on the Monday 4th August at 10 a.m. He is sending emails with a list with current and pre-existing issues to both of us in the next few days. 281 Mr Bilbija stated in his affidavit that after receiving that email, he formed the view that once Consumer TB brought his RV up to Jayco Sydney, Mr Holman could handle the matter.
July 2014 - further Jayco Canberra warranty claim 282 Meanwhile, on 23 July 2014, Jayco Canberra produced a warranty claim, which set out only one line item of repair work on Consumer TB's RV, which stated "Faulty" as the reason, with the description "Mattress too high, Authorized by Peter Manning. Invoice attached", for a total cost of $422.40 with GST, being the cost of the parts with no labour cost. It appears that this claim may have duplicated item 8 of Jayco Canberra's earlier warranty claim dated 26 June 2014, which was also for the replacement of a mattress that was "too high" (see [269] above). Nonetheless, the document records that Jayco Corp approved this warranty claim on 14 August 2014.
August 2014 - Jayco Sydney repair works 283 On 4 August 2014, Consumer TB took his RV to Jayco Sydney for an assessment of further repair works. Mr Holman met Consumer TB and assessed the RV. Mr Holman stated in his affidavit that he considered that previous repairs conducted on the RV were poor, which in context I take to be limited to a reference to the quality of repairs to the fibreglass. 284 On 5 August 2014, Ms Guy sent an email to Mr Manning, copied to Mr Holman, in relation to the issues with Consumer TB's RV, setting out a quotation prepared by Mr Holman for further repair works - [Consumer TB] brought his van in yesterday. You may remember […] this customer, he is very unhappy with his van and is wanting either a new van or a refund. Please refer to email you sent to Tyrone dated 14/07/14. The van is still here with us, I have sent the following photos in smaller lots so there will be some more following. Jason [Holman] has quoted 30 hours labour plus parts and then there will be extra labour to troubleshoot leak and wiring issues and leak from bed ends. Queanbeyan [Jayco Canberra] did the de-lam repair as well as the bed and leaks, the poor fibreglass repair on the passenger side, drawers and over-head cupboard. Customer has also been attended by Chris Dyer from the Caravan Wizard whilst he was holidaying in Shoal Bay [near Nelson Bay] Regarding leaks and loss of power to one side of the van. I will forward you his email to me. The whole job will include new shower walls, 2 x bed lids and decals to suit, new roof tent, several extrusions and a hockey stick. Total cost for parts (there is an overhead and panel yet to be added) :- $2989.57 Cost for labour (excluding the troubleshooting time to locate leaks and wiring issues) :- $2250.00 Total to date :-5239.57 285 That email, and a second email without any additional text, attached 10 photographs of Consumer TB's RV. Mr Holman stated that he forwarded the emails to Mr Bilbija to keep him informed of the situation, as Consumer TB had requested a refund or replacement RV. 286 Mr Holman, who prepared the quotation, stated in his affidavit that with the exception of the leak, none of the concerns noted in the email rendered the van unable to be used, and that he considered that all of the concerns were minor and capable of easy repair. During cross-examination, Mr Holman accepted that $5,000 for a repair was a high and substantial dollar figure, and that a repair that cost in excess of $5,000 was a major repair. Mr Holman also accepted that at this time, Consumer TB's RV had already been the subject of warranty repairs on nine occasions, and that there were still a number of unresolved issues with Consumer TB's RV including leaking issues. 287 Mr Manning stated in his affidavit that after reviewing Mr Holman's quotation and the photographs attached to those emails, he formed the view that the issues with Consumer TB's RV were the result of poor workmanship and customer service failings by Jayco Canberra, rather than a manufacturing fault of any significance. During cross-examination, Mr Manning accepted that a cost of in excess of $5,000 was a fairly significant amount for repair works. By contrast, during cross-examination, Mr Bilbija disputed that a $5,000 repair was fairly major, and instead characterised a $5,000 repair as "fixable", and stated that a repair of half the value of the RV, maybe $10,000 or $15,000, would be a large repair. In response to Mr Holman's evidence that a $5,000 repair was a major repair, Mr Bilbija stated that while he trusted Mr Holman's judgment and from time to time he relied upon Mr Holman's opinion as to whether or not something was a major repair, he nonetheless had a different opinion as to what constituted a large repair. 288 Later on 5 August 2014, Mr Holman sent an email to Mr Manning, in which he requested the history of warranty claim repair works conducted on Consumer TB's RV. Mr Manning replied the following day, on 6 August 2014, by forwarding a copy of the warranty claim repair works recorded in the Jayco Corp computer system, which I note did not include records of all of the repair works referred to above. Mr Holman stated that he reviewed the list and formed the view that most of the items were extremely small and cosmetic, and could be easily and cheaply repaired, with such repairs ordinarily taking place as part of a general service. Mr Holman stated that the only item of more significance was the water leak from the canvas, although the list indicated that it could not be verified on testing. I infer that was a reference to the line item in the warranty claim for the repair works conducted by Jayco Canberra in mid-2014 referred to at [261(4)] above, with description "CUSTOMER CLAIMS THERE IS WATER LEAK FORM [sic] CANVAS, WATER TEST NO LEAK FOUND". 289 On 6 August 2014, Mr Manning sent an email to Mr Holman, in which he relevantly stated - Can you please email a list of every thing you know needs fixing on this van. Please supply list ASAP. We may be doing the repairs down here and I need to run it past Phil [Rigby] for how long it will be needed down here for. 290 Mr Holman replied, listing the issues with Consumer TB's RV - The list is as follows: 1. Front shell/lid leaks water onto tent and pool's [sic] on top of. 2. Rear shell/lid leaks water onto tent and pool's [sic] on top of, not as bad as front. 3. Shower leaks when plugged into mains pressure, post fix of de lam walls. (reported not leaking from fittings) 4. Roof tent leaking at 'newly stitched' pocket. 5. Bathroom fan only works when roof lights are on. 6. Poor f/glass repair carried out on doorside wall LHS main door above window. 7. Dinette cupboard door 1, stay glued in with V4 from previous repair, replace end. 8. Island seat return, drawer not sliding in runners. 9. Replace front and rear bed lids, cracks on underside of hinge on grey. 10. Hockey stick push in buttons broken, replace. 291 Mr Holman referred in his affidavit to the issues listed in his email, as follows, adopting the same numbering - 1. This is a leaking of water outside of the caravan, not a leak into the caravan. This is quickly and cheaply fixed and does not render the van unusable. 2. This is quickly and cheaply fixed and does not render the van unusable. 3. I eventually removed the vanity and found a damaged pipe, which was a very easy thing to rectify. 4. This is quickly and cheaply fixed and does not render the van unusable. 5. This is quickly and cheaply fixed and does not render the van unusable. This may also just be a function of the design of the van or a minor adjustment. 6. This is not a manufacturing issue, but rather related to the Canberra repairs. In any event, this is quickly and cheaply fixed and does not render the van unusable. 7. This is a minor adjustment only, and certainly does not render the van unusable. 8. This is a very minor adjustment, quickly and cheaply fixed and does not render the van unusable. 9. The lids can easily slide out of the track, but it is very easy and fast to remove and replace them. 10. This is a very minor repair involving the replacement of two $20 parts and the van can be used in the interim. 292 Mr Holman stated that his overall impression was that the majority of the issues were minor repairs that would ordinarily be picked up during a regular service, and which many customers would not report. Mr Holman stated that, for example, the cracks on the underside of the bed lids were a purely cosmetic issue of paint cracking on top of the timber rails of the frame, and that most water leaks were actually a minor repair. Mr Holman stated that the leak in Consumer TB's van could have been caused by pipe damage during the previous shower wall repairs, rather than a manufacturing issue. Mr Bilbija stated that he considered that those repairs could be conducted fairly quickly. 293 Later on 7 August 2014, Mr Manning replied to Mr Holman, copied to Mr Rigby and Mr Dean Moyle of Jayco Corp, to make arrangements for Jayco Corp to perform the repairs to the listed issues with Consumer TB's RV - Please contact Phil [Rigby] to book it in down here and have the towing organised. Phil will need to order new hard lids and shower walls. Please do this ASAP so he can organise parts. The fibreglass repair is a question mark but we should be able to sort this out. Please remind me after this is all done to extend the warranty further if needed. It is now out to an extra 6 months from original delivery date. Now ending on the 23/11/2014. This is just the Jayco warranty. None of the third party warranties; A/C, fridge etc. 294 Also on 7 August 2014, Consumer TB sent an email to Mr Manning, copied to Mr Holman, in which he relevantly stated - Please find attached a document detailing most correspondence with Jayco Canberra, Jayco Sydney and yourself Peter. I am obviously not able to attach the records of verbal conversation, and the more recent conversations highlight the most recent issues - being; scratch on the side of van and the way it has been repaired; ensuite issues - including electrical failings and leaking issues. This document is 32 pages long. I have done my best to illustrate all emails I have sent and received from all parties. Peter - As I said to you on the phone recently, the only action that I have received from Canberra was following an email from you, which I have appreciated. Unfortunately the action taken was not appropriate and caused other issues. Jason - You and Sydney have acted promptly since my most recent complaint and that is also appreciated. I will not accept the decision to send this van back to Melbourne for repairs. This van has been only used approximately 4 times (never off road) in 15 months. In that time it has been back to Sydney for a week and in and out of Canberra 4 times with the last repairs taking 2 months. Minimal issues have been resolved. Now it is has been suggested that the van will return to Melbourne in September and back in October- further time of [sic] the road? I did not pay over $40000 for a van that we cannot use, have not been able to use (to its full potential or for the time we wanted) and on top of all of this, continue to pay rego and insurance. This is my second Jayco. My parents have the 14 foot expanda. My Sister has 16.49.3 expanda (same model as our van) and my parents in law have a Stirling. These vans have had no problems and been used a great deal more frequently than ours. I am sure that Jayco pride themselves on their good reputation, quality product and service. On this occasion I have purchased a van that has not performed in the way that it was described as been [sic] able to perform. We have a damaged caravan with no way of knowing if these issues will return in years to come. If we were wanting to sell this van, we would not get near the value it is worth due to everything. I stand by my position that this van needs to be replaced as soon as possible. Again, I appreciate your efforts. 295 That email attached a 32 page document which set out Consumer TB's earlier email correspondence with Jayco Sydney and Jayco Canberra in relation to the issues with his RV. 296 About 29 minutes later, Mr Manning replied to Consumer TB, copied to Mr Holman, relevantly as follows - I have checked with senior management again on your case. They say this is their only offer which is to bring the van down to the factory to have repairs done as explained to you by Jason Holman. We have also extended the Jayco warranty out by 6 months as a goodwill gesture. Just so you know this does not include any third party warranties such as the A/C or fridge etc. Please confirm with Jason that you agree to send the van to head office as Jason will need to organise the transport down and back up with the work shop here. Please do this ASAP. 297 During cross-examination, Mr Manning gave evidence that he could not recall or explain why on this occasion he escalated Consumer TB's request to Jayco Corp senior management, being Mr Austin or Mr Morgan, rather than following his previous position of referring Consumer TB back to his selling dealer, Jayco Sydney. Mr Manning also gave evidence that he believed that within the period between him receiving Consumer TB's email, including the attachment setting out 32 pages of correspondence, and sending his response about 29 minutes later, he would have consulted Mr Austin or Mr Morgan, who decided not to authorise the replacement of Consumer TB's RV. When further questioned in cross-examination, including by reference to Mr Austin's statement on 14 August 2014 that he was not aware of the background of Consumer TB's case, referred to at [322] below, Mr Manning stated that it was likely that during that period, he printed a copy of Consumer TB's correspondence and conferred with Mr Morgan in his office about the appropriate response, explaining that Mr Morgan's office was only two away from his own. Mr Manning rejected the propositions that he did not, in fact, escalate Consumer TB's request to Jayco Corp senior management, and that the reason he did not do so was because he knew that Jayco Corp would only offer to repair Consumer TB's RV. Mr Manning stated, "This decision came from someone, it didn't come directly from me". Mr Morgan, who was called before Mr Manning, did not give evidence about any conversation with Mr Manning concerning Consumer TB's request, and was not cross-examined on that topic by senior counsel for the ACCC. I accept Mr Manning's evidence that he likely discussed Consumer TB's request with Mr Morgan, because there is no sufficient objective reason to disbelieve that evidence, and for the further reason that the ACCC did not submit that Mr Manning's evidence on this issue should not be accepted. 298 Consumer TB stated in his affidavit that he was really disappointed and frustrated by Mr Manning's email, from which he understood Jayco Corp would only offer repairs, and would not provide him with a replacement RV in any circumstances. Later on 7 August 2014, Consumer TB replied to Mr Manning, copied to Mr Holman, relevantly as follows - I doubt that senior management have had the opportunity to read the details of my complaints and emails when they were only sent this morning. This is not acceptable. An extension of 6 months in warranty is no gesture of good will when we don't even have the van to use during the extension of warranty and couldn't use it at all during the first extension of warranty because it was with Jayco Canberra. Then to suggest that it does not extend to AC etc - when the AC has not worked since the day it was delivered. Peter you said during our last phone call that it [is] not your decision or senior management's decision about whether the van would be replaced. It was in your words 'the point of sale' responsibility - Sydney? Has this changed since our conversation? Can you please pass on contact details of a senior manager as this is not a fair outcome for the immense stress it has caused and the product that we are left with. 299 During cross-examination, Mr Manning accepted that it was likely that he had previously made a statement to Consumer TB to the effect alleged in the second last paragraph of the above email - that it was not Jayco Corp management's decision whether to replace an RV and that it was the selling dealer's responsibility. I accept that evidence, and I find that it is likely that Mr Manning informed Consumer TB that the decision was one for the selling dealer in his conversation with him on 14 July 2014, to which I referred at [273] above. Mr Manning also accepted in cross-examination that the statement was incomplete because the selling dealer would take up any replacement request with Jayco Corp. That acceptance is of little moment, because it was the subject of a subsequent email that Mr Manning sent to Consumer TB, to which I refer next. 300 Later still on 7 August 2014, Mr Manning replied to Consumer TB, copied to Mr Bilbija of Jayco Sydney, relevantly stating - Yes you would normally have to take this up with your selling dealer in regards to a refund or replacement van first. They will talk to senior management here about that though. Senior management have discussed your case with me after I told them what your emails were about. They do not deem the repairs to be major. Unfortunately Jayco does not control the third parties so their warranties will stand as they are. Please note that all repairs whether Jayco or one of the third parties carry 12 months warranty on the fault fixed at the time from its completion date. If you would like to take further I would recommend your selling dealer (Jayco Sydney: Tyrone) or emailing 301 On 11 August 2014, Mr Manning sent an email to Mr Bilbija and Mr Holman of Jayco Sydney, in which he relevantly stated - Has the owner [Consumer TB] tried to call you about wanting another van? What was the result? I have a claim here waiting on approval for $5239.57 inc gst from you. 302 The following day, Mr Manning resent this email, stating that he had not heard back. 303 On Jayco Sydney's part, Mr Bilbija stated that he instructed Mr Holman to handle Consumer TB's matter. On 12 August 2014, Mr Holman replied to Mr Manning, copied to Mr Bilbija, relevantly as follows - As per [conversation], history of issues with unit: Roof Bowed to Body top frame Re-Seal Shower from cracked silicon Bed Lids Leak Bed lids Cracked A/C fan noisy Main Door lock sticking Alignment of some drawers Shower Door Lock Broken Ext. trunk door lock replaced Ext. trunk door replaced - post lock replacement Fridge Rubs on rear Storage cab Front f/glass shell, rough paint Shower walls de-lam Rear Mattress Replaced F/glass dam LHS main door F/glass damaged on front bed end Broken clips for mattress straps - front bed Roof pocket torn - replaced with newly stitched on Overhead cupboard door 1 loose at hinges and stay Outstanding issues: Bed leaks Lids cracked Roof tent replacement pocket leaks - new roof tent Leaks to behind shower - post de-lam walls OHC 1 -replace end Hockey Stick replace Shower fan only works when roof lights on Align drawer under dinette return Van taken for warranty issues: 29/6/13 - Jayco Sydney 13/11/13 - Jayco Canberra 28/11/13 - Jayco Canberra 20/3/14 - Jayco Canberra 26/6/14 - Jayco Canberra 4/7/14 - Jayco Canberra 15/7/14 - onsite call out Shoal Bay 23/7/14- Jayco Canberra 4/8/14 - Jayco Sydney Customer states he has not had van for total of 5 weeks 304 Later on 12 August 2014, Mr Manning and Mr Holman exchanged further emails in relation to Consumer TB's RV. Mr Manning stated in one email - Is the owner pushing for a new van or refund and where is Sydney with that? As you know Jayco will authorise repairs only from my role. 305 Mr Manning stated in his affidavit that the reason for his email was that at this time, he expected that Mr Austin or Mr Rigby, who had greater authority, would want an update on Consumer TB's case. 306 Mr Holman replied to Mr Manning, copied to Mr Bilbija - As per our conversation. The owner is wanting a new van. As you can see by my last email, I have been looking into his history, I will present my findings to Tyrone [Bilbija] and we will contact you. 307 Mr Manning replied to Mr Holman, "No probs." 308 The next day, on 13 August 2014, Mr Holman sent an email to Consumer TB, copied to Mr Manning and Mr Bilbija, in which he relevantly stated - As per my previous email, I have looked at the service history in regards to your van Chassis Number R49265. I confirm that your van is repairable, in our opinion the repairs are not deemed to be major and does not substantiate your request for a replacement van. Jayco Corporation Pty Ltd agrees with our findings and they are willing to provide the following at no cost to you. • * Transport your van - Chassis Number R49265 to and from Melbourne to complete repairs. • * Jayco Corporation have also confirmed that they will honour a further 6 month warranty (appliances excluded) on your van once they have returned it to you. I formally ask for your approval that we can release the van to Jayco Corporation Pty Ltd in Melbourne for repairs to be completed. I await your approval so that I can move ahead with the repairs required on your van. 309 Mr Holman gave evidence that the position that he expressed in that email was a joint position of both Jayco Sydney and Jayco Corp. Mr Holman agreed to a proposition that he was instructed by Mr Manning that because the RV was repairable, the repairs were not deemed to be major, and therefore that Jayco Corp was not willing to replace the RV. The terms of the cross-examination are important, and the relevant questions and answers were as follows - Q: Now, in that email that you sent to Mr [TB], you informed him that the van was repairable and that in your opinion the repairs, or in our opinion you expressed the repairs are not deemed to be major and does not substantiate your request for a replacement van. Do you see that? A: Yes. Q: You used the right phrase, "our opinion". You see that? A: Yes. Q: And that was your opinion, and it was also the opinion, wasn't it, of Mr Manning from Jayco Corp? A: It was an opinion from Jayco Corp and myself. Yes. Q: Okay. So it was a joint opinion? A: Yes. Q: And I think you said earlier that it was your practice, if instructed by Jayco Corp to repair, that's what you would do? A: Yes. Q: Do you understand that that's what you were doing here? You had been instructed by Mr Manning at Jayco Corp that the repairs - that because the van was repairable the repairs were not deemed to be major, and therefore Jayco Corp were not willing to process Mr [TB]'s request for a replacement van? A: Yes. 310 Fairly read, the cross-examination was directed to instructions given by Mr Manning to Mr Holman in relation to Jayco Corp's warranty obligations, and Jayco Corp's position that it would not process the request for a replacement RV. The cross-examination has to be evaluated with other evidence, including the emails of Mr Manning to which I have referred above, where he sought to know what Jayco Sydney's attitude was towards the request for a replacement RV. 311 Mr Holman prepared the email to Consumer TB of 13 August 2014 with assistance from Mr Morgan of Jayco Corp. Mr Holman sent a draft of the email to Mr Morgan for his review, and Mr Morgan responded with comments and suggestions, which were limited to changes in the language of the email that did not affect its substance. This assistance was characterised by Mr Morgan as giving advice to a former colleague with whom he had worked at the Jayco Corp factory, who had only recently commenced at Jayco Sydney in a customer-facing role. Mr Morgan denied that this was an instance of Mr Holman seeking approval, or escalating the issue to Mr Morgan, in accordance with some procedure that had to be followed by dealers. Mr Holman stated in his affidavit that he no longer recalled what prompted him to send the draft email to Mr Morgan, but that at the time he had not been working at Jayco Sydney for long, and that it was likely that he sought guidance as to how to communicate Jayco Corp's decision regarding the request for a refund or a replacement RV. Mr Holman was not cross-examined about this evidence, and it was not put to him, as it was put to Mr Morgan, that he was seeking approval, or escalating the issue to Mr Morgan pursuant to some procedure that he had to follow. The terms of the emails themselves support a finding that Mr Holman was seeking assistance in relation to the drafting. In the result, I accept the evidence of Mr Morgan that Mr Holman sought his advice as to the drafting of the email, and not as part of some approval procedure that dealers had to follow. 312 Mr Bilbija stated in his affidavit that the substance of this response to Consumer TB was agreed between himself and Mr Holman of Jayco Sydney, and Messrs Murphy, Austin, and Morgan of Jayco Corp. The source of this statement appears to be Mr Morgan's email to him and Mr Holman dated 13 August 2014 containing the settled version of the draft email to Consumer TB. That email was also copied to Mr Austin, Mr Manning, and Mr Murphy. Mr Bilbija stated that he involved Jayco Corp in the process because Jayco Corp had been involved when the initial issues with Consumer TB's RV were raised with Jayco Canberra. I am not persuaded that Mr Bilbija himself sent any direct communications to Jayco Corp in relation to Consumer TB, as his affidavit evidence might suggest. Rather, he appears to have left the correspondence to Ms Guy and Mr Holman, although he was copied into the significant email correspondence. 313 During cross-examination, Mr Bilbija rejected the proposition that he and Jayco Sydney did not independently consider whether to replace Consumer TB's RV, and that Jayco Sydney was hamstrung by whether Jayco Corp would reimburse any refund or replacement RV provided to Consumer TB - Q: And I want to suggest to you one last time, Mr Bilbija, that whilst you might have considered that you were undertaking a separate consideration process that involved whether or not Jayco Corp would - had agreed to repair a recreational vehicle, you were, in reality, hamstrung by whether or not you thought Jayco Corp would reimburse you if you were to provide a refund or replacement and Jayco Corp thought that the van should be repaired, and refused to indemnify you? A: No. Q: That never factored into your consideration at all? Is that your evidence? A: No. 314 I accept Mr Bilbija's evidence, as set out above. In relation to Consumer TB's RV specifically, I have noted that Mr Bilbija was copied into the relevant email correspondence relating to Consumer TB and might therefore be taken to have adopted what was proposed, namely that Consumer TB's RV would be repaired at the Jayco Corp factory in Dandenong, and no refund or replacement provided. That finding follows from more general findings that I have made elsewhere about Mr Bilbija and Jayco Sydney's dealings with Jayco Corp. More generally, I find that Mr Bilbija did not allow his decisions on refund or replacement requests to be hamstrung by whether Jayco Corp thought an RV should instead be repaired. However, I find that Mr Bilbija's decisions were liable to be influenced by Jayco Corp's own views about such matters, which was a natural result of a consultation process. But as I discuss later in these reasons, the evidence supports the conclusion that Mr Bilbija understood that Jayco Sydney as the supplier had a liability under the ACL that was separate from Jayco Corp's manufacturer's liability, and that in some instances he had been prepared to act independently of Jayco Corp in providing a refund or replacement RV to a consumer. These findings are made in the context of my rejection of the ACCC's claim that there existed a procedure under which dealers were required to seek Jayco Corp's approval before agreeing to provide a refund, or a replacement RV. 315 Later on 13 August 2014, Consumer TB sent an email to Mr Manning, Mr Bilbija, and Mr Holman, in which he relevantly stated - At this point, I am left with no other option but to refer this to the Department of Fair Trading and Ombudsman. I am very interested to hear that you do not deem a leaking van that caused power faults not serious. I am also very concerned that you deem having to pull the whole sidewall of the van off, to replace the wall that is scratched not serious. To mention just 2 issues of many. What compensation does Jayco extend to people that have major defects from date of purchase that causes a product to be off the road for extended periods? I will also be contacting my insurance and registration companies to put a hold on both as I will not continue to register and insure something that I can't use. Can you confirm that your insurance covers the van while in your care? I also request a quote for the cost that you would have incurred if a vehicle was hired to retrieve this van from the ACT and transported to Sydney for your inspection? (Instead of me using my personal vehicle and time off work) I finish by asking you a question (taking your Jayco hat off). Q; If you were selling this 2013 Jayco Expanda (second hand), what would you expect the first question to be from a potential buyer? A; Have you had any issues with the van? Q; What would be your response? Do you lie or tell the truth? A; (Truth - 32 pages of correspondence between the owner and Jayco listing faults) Do you honestly think that the potential buyer would still be interested? Can you please get back to me asap in regards to my above requests. I will then seek advice and get back to you regarding my legal position. (Bold in original) 316 In response to that email, Mr Holman stated in his affidavit that he never told Consumer TB that the wall of his van would have to be taken off, but rather that at one point he told Consumer TB that if a wall needed to be taken off, he could do that with no problem as it was not a large job. Mr Manning stated that he did not consider that removing and replacing the side wall of an RV was serious, and that while it might be time consuming, it required no more than removing some components and an adjustment, which could be done by a dealer or service agent. 317 Later still on 13 August 2014, Mr Holman sent an email to Mr Manning, copied to Mr Bilbija, to provide further information in response to Consumer TB's email - Just a few things to clarify. • * I have attached an email from Chris Dyer - Caravan Wizard - that explains that there was 2 fuses blown in the van when called out to Shoal Bay. • * I stated when he was asking about how to repair the scratch on the side of his van that ''the repairers at Jayco Melbourne are fantastic and that they would be able to fix it with no problem at all and that if the wall was un-repairable, which it is not, that the walls are easy to replace". I did not state that his wall would have to be replaced. • * Judy [Guy] offered him to transport his van back to Jayco Sydney for inspection, at no cost to him, and he stated that he would rather bring his van to us personally. 318 That email attached the email from Mr Dyer of Caravan Wizard to Jayco Sydney, set out at [276] above. 319 The next day, on 14 August 2014, Consumer TB sent another email to Mr Manning, Mr Bilbija and Mr Holman, which relevantly stated - I have made contact with the NSW Department of Fair Trading and due to the ongoing nature of the faults/issues with this van, they support my position in regards to requesting a placement [sic] or refund. They have informed me to formally lodge a complaint within their Department. They will then liaise with you in determining a fair outcome. Thank you Jason [Holman] for your work and your timely response. 320 During cross-examination, Consumer TB was challenged on the statement in that email that New South Wales Fair Trading supported his request for a refund or replacement RV, and he accepted that in fact the New South Wales Fair Trading merely offered an avenue for a refund or replacement if certain circumstances were established. 321 Mr Manning forwarded that email to Mr Morgan and Mr Austin, copied to Mr Bilbija and Mr Holman. Mr Manning stated that he did so because his personal authority did not extend to providing a refund or replacement RV. 322 Later on 14 August 2014, Mr Austin replied to Mr Morgan, copied to Mr Manning, relevantly as follows - I haven't been involved until now so I haven't yet seen or read all the correspondence. I note that Peter has placed a lot of these items in Mr [TB]'s folder in the Y drive. I recommend you discuss it with Peter Murphy, it boils down to 1: toughing it out through Fair Trading (I don't know enough to assess how strong or weak our case would be) OR 2: offering a rebuild van on the usual terms eg he collects it from Jayco and delivers his current van to us at the same time. 323 On 18 August 2014, Mr Holman sent an email to Consumer TB, copied to Mr Manning and Mr Bilbija, in which he relevantly stated - I am writing to confirm receipt of emails (13/08/14 & 14/08/14). Thank you for informing us on your decision to not move forward with repairs to your van chassis number R49265. In regards to your question on insurance, I have contacted our Insurance company and I will forward the email received. In regards to your question about costs being covered for transport from ACT to Sydney on the 04/08/14, I believe our Service Advisor asked if you would like your van transported from ACT to Sydney, but you declined and said that you would rather bring the van yourself. Jayco Sydney will not be covering the costs of the transport. Thank you for your correspondence. 324 Meanwhile, Consumer TB's RV remained at Jayco Sydney.
August to September 2014 - Jayco Sydney repair works 325 In August 2014, Mr Holman conducted further repair works to try to identify and fix the leak inside Consumer TB's RV. On 19 August 2014, Mr Holman sent an email to Consumer TB, seeking further information on the nature of the leak in the RV - I have had the opportunity yesterday to connect your van to mains pressure to determine the cause of the water leak. The van was connected for 6 hrs, I checked on it every hour or so, walked around inside the van, but I can't find any leak. I have the email from the repairer that visited you onsite in Shoal Bay [near Nelson Bay], it states that he had the van connected for 10 mins and could not find the leak also. Can you provide me with some background information please, so I can replicate the scenario for when it happened. 326 Later on 19 August 2014, Consumer TB replied to Mr Holman, providing the background on the leak in his RV - As discussed when [I] dropped the van off to you. We arrived at Nelson Bay and plugged the van in to mains water. Later that night I noticed water beading around floor trim. Throughout the night the leak was significant enough to cause pooling near the table. The caravan was level although the water was notices [sic] all the way from the fridge end, stopping in front of the power control box under lounge. While preparing food for dinner we noticed some lighting being out on that side of the van. I disconnected the water mains. The next morning (after clean up) I decided to reconnect the mains and not use any taps within the caravan. The same issue started within a couple of hours. Jayco Sydney organised the repairer to come out for the inspection and hopeful repair. He was unable to see any obvious issues and left after a period of time. I believe this was longer than 10 minutes after reconnecting mains. He had found the electrical problems and replaced fuses - no pwer [sic] to down lights and 12 volt plugs? We left the van for the day and returned later that evening to have the same water issue on the floor. I have attached two photos that were taken after the repairer had pulled the ensuite apart. Hope this helps. 327 That email attached two photographs of pools of water inside Consumer TB's RV. 328 Later still on 19 August 2014, Consumer TB again emailed Mr Holman, with further guidance - The only other thing that was connected (to replicate the scenario) was that it was connected to mains power and the electric hot water service was switched on. Maybe there is an issue with the connection with the hot water system? That's all I can think of. 329 On 1 September 2014, Mr Holman sent an email to Mr Morgan, copied to Mr Bilbija and Mr Austin, providing an update on his efforts to fix the leak in Consumer TB's RV - I have had Mr [TB]'s expanda pop, R49265, on water test for the past week. I have noticed a drip coming from the rear underside of the van. I have proceeded to pull forward the top basin/vanity and have found that there was a pipe which has a split in it just behind the wall. I have had the pipe repaired and the unit tested, all is ok. Would you like me to email Mr [TB] and let him know my findings and fix? I haven't heard from fair trading in regards to his claim. 330 Mr Bilbija replied by instructing Mr Holman to advise Consumer TB that he had fixed the leak inside his RV. 331 Later on 1 September 2014, Mr Holman sent an email to Consumer TB, with that update - Thank you for email in regards to the water leak within your van, R49265. Over the past 2 weeks, I have been testing the van to try and replicate the scenario for when it was leaking. I have finally been able to get your van to leak and found the issue. The high pressure pipe behind the ensuite vanity had a crack in it. I was able to remove the affected part and re-connected the pipe back together. The van has currently been tested under pressure for 18 hours thus far and I am very confident that this was the issue. I have had the vanity installed and sealed, back to it's [sic] original state at the time of purchase. Thank you once again for helping me in regards to rectifying this issue. 332 On 3 September 2014, Mr Austin sent an email to Mr Holman, copied to Mr Morgan and Mr Manning, congratulating Mr Holman on fixing the mains pressure leak on Consumer TB's RV - Well done in tracking down and fixing the mains pressure leak. We shall just have to wait and see what Mr [TB] intends to do and respond accordingly.
August to September - Fair Trading complaint and correspondence 333 Consumer TB made a complaint to New South Wales Fair Trading on 22 August 2014 by sending an email which relevantly stated - Please find attachments that detail a complaint. I apologise for not submitting these on line but I was experiencing trouble with character limits and not being able to attach files. Documents: 1. Fair trading - complaint 2. Correspondence Jayco 3. Most recent correspondence 334 As stated, the email attached three documents. The second and third documents extracted the correspondence between Consumer TB and Jayco Corp, Jayco Sydney, and Jayco Canberra, set out above. The first document was a two-page typewritten letter which stated - I am writing for your assistance in regards to the purchase of a new Jayco Expanda in May 2013. The van was purchased from Jayco Sydney and we have had overwhelming issues with this van since the date of purchase. The faults have meant that we have been unable to use the caravan to its full potential and for a significant period of time, not been able to utilise the caravan at all. This caravan was purchased for over $40,000.00 and we continue to pay for registration and insurance for a caravan that is off the road. The caravan has been back to two service agents, Jayco Sydney and Jayco Canberra, with little to no issues resolved. Initially the caravan was returned to Jayco Sydney to have the following repairs made - 1 week in duration; • Seal at front top - where the pop up pulls down, does not seal. Gap between top of van and the seal. • The waterproofing in the ensuite is not complete - sealant has not been applied to some areas • Buttons on both under seat sliding doors do not operate properly - they get stuck in • Air co continuously has a fan noise even when turned off • Hard lids leak badly, even when in storage and locked up. When it rains they leak and when it is being washed they leak • Scratch • Rear bed has different density foam/inner spring from front to back - unable to be slept on. When we returned to collect the caravan none of these issues had been addressed to the point the service manager was trying to correct the leaking bed ends with silicon -while we waited. It was no surprise that this did not resolve the leaking bed ends. Due to the unsuccessful attempt by Jayco Sydney to repair faults and after advice from the service manager Jayco Sydney, I opted to take the van to Jayco Canberra. I have since had the van at Jayco Canberra four times. The last time was for 2 months, again with little faults addressed. The following needed to be repaired due to further and ongoing issues; • Ensuite walls delaminating - whole ensuite to be replaced • Back bed end canvas wearing to the point of a hole causing leaking bed - whole canvas bed end to be replaced. • Outside toilet door continues to deteriorate - to be replaced • Air co issue • The inside back floor (near fridge) gets covered in aluminium shavings and a black dust on every trip. We have kept one example in a zipped lock bag as an example and left the dust on the floor • The vinyl pop top was never stuck back into place. This is the piece that is holding the wires coming up from cupboard space. • Damage that was caused to the front bottom drop down bed - exterior. When I picked it up I pointed out scratch, marks that were not there at drop off? Once home I pulled the bed out and the female mattress clip was broken and the mattress was completely removed - not sure why? I can put the damage down to the female clip being left outside while bed end was pushed back in. • Our bed ends are still leaking profusely when raining. We do not get any sleep when it is raining as we have to push the canvas up every 10 minutes to release the gathering water and stop the pooling. The punctured back bed end canvas has also allowed water leaking internally due to the hard lids leaking - not fun changing wet sheets in the middle of the night especially when it is at the kids end. The faults that were addressed were the air conditioner, the side toilet door, [punctured] bed end and the walls delaminating in the ensuite. Unfortunately the ensuite fix generated more issues and was not replaced as first instructed. The vinyl pop top was also meant to be replaced although only the section that was ripped was replaced - the stitching holes are too large and now let rain in. The other issue that was attempted to be fixed was the external scratch. This also was not resolved but only made worse. The small scratch is now a large section of the van showing scratches (deep buffing dullness), paint runs and orange peel effect. The ensuite work has caused a leaking ensuite with water leaking on to the floor of the van. Jayco Sydney sent a repair agent to the caravan park that we were staying at and pulled the ensuite apart. There was no obvious sign of leak but the residual issue was power outages caused by the water to the right hand side of the van. The repair agent could not determine any faults although replaced fuses that had blown due to the water leaks. Due to all of the above faults, the ongoing nature of the faults and the fact that the value of this van is now compromised, I have requested a re-placement caravan or my money back. Jayco Sydney and area manager of Jayco do not support my request. Saying that all issues can be repaired. They would like my consent for the caravan to be sent back to Melbourne for repairs. The van would be sent back to Melbourne in September and returned to us in Late October. There is no other compensation offered apart from an extension of warranty by 6 months, although this does not extend to the appliances - Air conditioner being one of the major long lasting issues. I have attached most correspondence I have had with Jayco Canberra, Jayco Sydney and the area manager. I have also not approved my caravan being sent to Melbourne until I have received advice from Fair Trading. This situation has caused a great deal of stress for me and my family. I appreciate your time in investigating my situation. Please do not hesitate to call for additional information. 335 On 1 September 2014, the New South Wales Office of Fair Trading sent an email to Consumer TB, which relevantly stated - I refer to your correspondence received 22 August 2014 regarding your issue with Jayco Sydney. As discussed NSW Fair Trading requires further information in order to address the issues you have raised. Accordingly, could you please provide by reply email, quoting reference number 7146745 the following information or documentation: 1. List of defects that have not been rectified 2. Sales contract/invoice to confirm the legal entity Please note that if the NSW Fair Trading does not hear from you within 5 business days from the date of this email, we will assume that the matter has been resolved. 336 On 8 September 2014, Consumer TB replied to New South Wales Fair Trading, relevantly as follows - Please find attached the dealers [sic] receipt that confirms legal entity. I also have attached the original document that detailed all defects. The following are defects that are yet to be rectified or new ongoing issues since purchase date. 1. Aluminium filings appearing on floor near fridge - caused to ongoing rubbing between fridge wall and bed end wall. 2. Bed ends leaking on to canvas roof when set up. 3. Minor scratch near door that was attempted to be repaired but has been significantly made worse. Extends from the door to the front of van. There is also a round buffed mark to the right of the door towards the roll out awning. 4. Ensuite walls were delaminating. When attempted to be repaired the van leaked inside. Last correspondence form Jayco Sydney was that they found the leak. Not sure if the ensuite has been repaired as well. This repair work was meant to be done back in Melbourne so not sure why they undertook the repairs in Jayco Sydney. This will be the third time that water has leaked in to the van as a result of the ensuite issue. Who knows what damage is evident now or in the future - due to the nature of the leak and how hard it was to determine where it was coming from. 5. Rear bed has different density foam/inner spring from front to back - unable to be slept on. 6. Seal at front top - where the pop up pulls down, does not seal. Gap between top of van and the seal. 7. New vinyl pop top still needs to be replaced - where power cables where [sic] coming from van to the roof caused the vinyl to tear. Jayco explained that they would need to replace it. A new sinlge [sic] piece was sewed to cover the issue. The sewing holes are too big and cause rain to come in to the van. I appreciate you taking the time to investigate my situation. I would appreciate you taking the time to read the original 'fair trading - complaint' document. This details that [sic] amount of ongoing issues that we have experienced with this van. My major concern is that most of these defects/issues have left me with a van [that] would be very difficult to sell on the second hand market and would reduce its value significantly. 337 That email attached a copy of the receipt issued by Jayco Sydney to Consumer TB for the purchase of his RV, and a copy of Consumer TB's letter outlining his complaint to New South Wales Fair Trading as sent on 22 August 2014 and set out at [334] above. 338 Consumer TB stated in his affidavit that he also spoke to a representative of New South Wales Fair Trading by telephone. Consumer TB stated that he was told that the Office had been in contact with Mr Manning about his complaint, and because Jayco Corp had offered to repair his van at its factory in Dandenong, he could not get a refund. Consumer TB stated that after receiving that advice, he agreed for his van to be repaired at the Jayco Corp factory in Dandenong. The basis for that advice, and whether it was reasonable are not issues in this proceeding.
September to November 2014 - Jayco Corp Dandenong factory repair works 339 On 15 September 2015, Consumer TB sent an email to Mr Holman, in which he authorised repairs to be conducted on his RV at the Jayco Corp factory in Dandenong - I am writing agreeing to the transportation of my caravan to Melbourne for repair work repairing faults as listed below. * scratch and damage caused, after attempted repair from Canberra, to outside wall of caravan - door side. To the left of the door and the right. Large section on left and a small 10cm patch on the right - quite obvious in the right light. * pop top vinyl skirt where wires come up, ripped due to congestion of wires. A small section was replaced but stitching holes allow rain to penetrate. * after ensuite leak - water damage to be addressed * Front and back bed ends still leaking. From hard lids to canvas. Canberra attempted to fix but put things in place that did not address the issue - foam stripping around seal when lid is closed? * aluminium shavings and wearing of luggage area under mattress, where it meets fridge wall - I think you took photos of this Jason? * hinges on draws [sic] and doors coming lose. Screw on hinge to the cupboard on the top left as you walk in - constantly coming away. If tightened any more it will penetrate other side * dis-colourisation of sink in ensuite from sun coming from sunlight, door seems to be changing colour and overall dullness of van. I am concerned that this was made worse while not covered in jayco Canberra, sydney and then also Melbourne. * back mattress has been replaced but it is still unable to be slept on due to the unevenness of it where it folds. * when the pop top is down the seal at the front does not seal An issue that I have not previously highlighted I guess because there were other issues that were prioritised. It would be great if this could be investigated while in Melbourne. * paint work around top inside steal strip. Just below where the pop top starts. In each corner the paint work was not completed and some overspray evident on wood panelling. Also, at one of our park stays a neighbour (with his fishing rod) scratched one of the large green decals on the side of the van. Is it possible to have this replaced? One of my main concerns with the current state of my van is the overall impact on its resale value. So as we discussed this morning, I was wondering if I could be provided with details about how the van will be repaired while in Melbourne. I would appreciate this prior to any work commencing. I will read through all the correspondence that I have had to ensure I have covered everything. I will get back to you ASAP if I have missed anything. Thanks again Jason. 340 Consumer TB stated that shortly after he sent that email on 15 September 2014, he spoke to Mr Holman by telephone, who advised him that his RV was booked in for repairs at the Jayco Corp factory in Dandenong on 23 October 2014. Consumer TB's RV was transported to Melbourne shortly after this email was sent on 15 September 2014, and it was returned to Consumer TB at Jayco Sydney on about 21 November 2014, approximately 9 weeks later. Mr Holman gave evidence about the list of items to be repaired that Consumer TB set out in this email. Mr Holman stated that the list included issues that had not previously been raised with Jayco Sydney, including the aluminium shavings and wearing of the luggage area under the mattress, the discolouring of the sink in the ensuite, and the front seal failing when the pop top was down. Mr Holman also stated that the paint overspray issue was extremely minor and cosmetic, and the decal issue was a goodwill repair. 341 The next day, on 16 September 2014, Mr Holman forwarded a copy of Consumer TB's email to Mr Rigby, copied to Mr Bilbija, Mr Austin, and Mr Morgan, and relevantly stated - As per our discussion yesterday, the information on repairs required to this van R49265, are stated in below email from customer. Please inform me of dates for transport, workshop times and estimated return time. The customer has asked to be informed of how the repairs will be taken out on the van. I have suggested that communication of this will be presented once the unit has been inspected at the factory. Any issues, please let me know. 342 On 24 October 2014, Consumer TB sent an email to Mr Holman, in which he relevantly stated - By memory, I believe that our van was due to be sent back to Melbourne yesterday and was wondering how long to expect before they will get back to us detailing repairs that will be carried out? 343 On 30 October 2014, Mr Holman of Jayco Sydney sent an email to Mr Rigby of Jayco Corp, outlining the issues with Consumer TB's RV - Issues are as follows: Both bed ends leak (shells) Both bed lids cracked Roof tent replacement O.H.C 1 replace end Hockey Stick Replace Shower Fan only works when roof lights on Align drawer under Island Seat F/G repair LHS Main Door Rear storage cab replace extrusion (rub on fridge cab) Rear mattress replace - new 2 piece style Re-paint bodytop corners and remove overspray on cabinetry from previous touch up Replace Offside Green Swirl Decal And now: De-Lam shower walls 344 Mr Holman stated in his affidavit that in his experience, each of the issues listed in that email was minor, or purely cosmetic, and easily and cheaply rectified. 345 The next day, on 31 October 2014, Mr Rigby replied to Mr Holman, relevantly stating - I've spoken to [Consumer TB] this morning so hopefully he will be okay - he's still asking for Jayco Sydney to buy the van back but I'll leave this for you to discuss with your Dealer [principal] if necessary. I'll keep you updated of the progress - I'm working a few boys tomorrow to knock over what we can but obviously we have not got walls and hard lids. The walls seem pretty loose so we may be able to reuse if we can get them off in one piece. 346 In relation to the reference in this email to Consumer TB asking that Jayco Sydney "buy the van back", Mr Holman stated in his affidavit that Jayco Sydney did not buy RVs from anyone except Jayco Corp, and that it only accepted trade-in RVs from customers. 347 Later that day, Mr Rigby and Mr Holman exchanged further emails, in which Mr Rigby asked for Consumer TB's mobile telephone number, which Mr Holman provided. 348 On 6 November 2014, Consumer TB sent an email to Mr Holman, in which he relevantly stated - Thanks for trying to get in contact with me late last week and this week. I spoke with a guy from Melbourne last Friday and he explained that he was not aware of the delamination in the ensuite. I explained that this was fixed by Jayco Canberra but he said that the ensuite had delaminated once again so he would have to order parts which would add another 15 days to the situation. On top of that he said that he received [an] email from Jayco Sydney that morning that detailed other issues that he was not aware of and was not on his original list? The cracked bed ends was an example of this. He will also need to order new hard lids and this will also add 15 further days. Just more issues that to be honest - I expected. I am yet to hear if they will still be able to meet my timeline of the caravan back in Sydney by the 21st. Thanks again for the phone calls 349 The following day, on 7 November 2014, Mr Holman replied to Consumer TB, relevantly stating - I have spoken to the Service Manager about your shower walls. I have let him know that the shower walls are to remain a one piece setup and a join will not be a sufficient fix. I have also advised him that […] the "new type" shower walls with the plain white finish will be fine to use if they fit. I will ring the factory on Monday to get an update on how they are going. I will contact you with this information. 350 Later on 7 November 2014, Consumer TB replied to Mr Holman, relevantly as follows - As discussed before the van went to Melbourne, I was hoping to have something in writing providing details about what and how things were going to be repaired. At this point I have only had a verbal discussion with Phil and we did not speak about all of my concerns and how they intended on addressing them. I just need to have it clear in my mind about everything that is going to be completed. 351 Mr Holman forwarded that email to Mr Rigby of Jayco Corp. On 11 November 2014, Mr Rigby replied to Consumer TB and Mr Holman, with an update on the repair works conducted at the Jayco Corp factory - The unit is currently in the workshop and we are carrying out the following repairs as per telephone conversation with of [Consumer TB] last week 1: Replace bed lids and check for leaks - these have been changed and new seals installed. The unit will be put through the water tester when complete. 2: Roof tent replacement - this has been changed and roof wires separated down two adjacent sleeves 3: Screw loose in OHC - repaired 4: Replace bed hockey stick (clip broken) - replaced/repaired 5: Align drawer under island seat - repaired 6: Rear cabinet rubbing on fridge cabinet - repaired and cabinet adjusted so it does not rub 7: Replace rear mattress - replaced with new 2 piece version as per current builds 8: Repaint body top corners and remove overspray from previous repair - repaired and cleaned 9: Replace offside green swirl decal - replaced 10: De-lam shower walls - these have now been repaired as a set of shower walls were sourced 11: Repairs to side wall next to entrance door - contractor coming this week to assess & repair 12: Shower fan only works with roof light - unfortunately this is standard wiring on all the Pop top range and we cannot access the roof space to alter as it is a pressed roof. We have fully assessed the shower area when the shower walls were replaced and we can see no signs of water damage from previous leak. During this procedure the toilet and vanity unit were removed and we had full access to all areas of the cubicle. All being well the unit should be finished early next week for return to Jayco Sydney. 352 Mr Rigby stated in his affidavit that many of those repairs were very minor or cosmetic. Mr Rigby stated that the two items that were the main focus were the tent replacement, which was not a major job but did require a slight elevation of the roof to fit the tent, and the delaminated shower walls. Mr Rigby stated that in his experience, those issues would not hinder or render unsafe the use of the RV, and that once repaired, the tent and shower walls would be the same as in any new RV. 353 On 13 November 2014, Mr Rigby, Mr Holman, and Consumer TB exchanged emails in relation to the repairs to Consumer TB's RV. Mr Rigby stated - [Consumer TB]'s van is pretty much complete - I am having the paint work attended to today. One item below which we I am not sure about is number 3: below the OHC screw loose. On your original mail you asked us to change the end panel but when speaking to [Consumer TB] direct it was a loose screw only - can you confirm what the actual issue was so I can double check when we sign it off. The only outstanding item I am waiting for are the decals for the new hard lids - I have been given a delivery date of the 27/11 as these were not on the original repair list and only ordered when the van arrived. We do have some older decals in stock at Spare Parts which we can install temporarily or we can leave them blank and send the new decals on when they arrive for you to fit - please advise. 354 Mr Holman replied - Thanks for the extra man hours that have been put in on the weekend work for this van. In regards to the overhead end, I recall the stay had been put back in place using a screw and some V4, this why I said I going to replace the end as the screw seemed to be stripped. In regards to the decals, Mr [TB] will have to tell us what is to be done, he lives in Canberra, so you might have to send them to Jayco Canberra. 355 Consumer TB replied - Phil as I said to you on the phone it was a [loose] screw although it had been attempted to be repaired without luck. I also said that if it was screwed in any further the screw would come through the side wall. There was some kind of silicon used to fix the problem - obviously didn't work. Your call on how [to] rectify this issue. In regards to the decals, they will have to be sent to Canberra. Are they easy to install? If so I will do it myself as I am not confident in Jayco Canberra being able to do this within the next 3 months! 356 Mr Rigby replied - Thanks for the info - I've identified the stay that is giving problems and sure we can rectify without replacing the end panel. I've been onto the decal [manufacturers] direct and hopefully we should have these tomorrow or Monday at the latest. 357 On 17 November 2014, Consumer TB sent an email to Mr Rigby and Mr Holman, seeking an update - I was just wondering the latest news about the van and [its] progress? I was also wondering about the end result of the ensuite basin. As you would recall during our conversation I mentioned the dis colourisation of it and the outside door. You said you would investigate as it was out of the ordinary for a basin for its age to turn yellow. You also said that it may have something to do with the skylight? Thanks for your efforts in rectifying all of the problems. 358 The following day, on 18 November 2014, Mr Rigby replied to Consumer TB and Mr Holman, copied to Mr Manning, with an update - All repairs are now complete - the van is currently at the water test facility today to confirm there are no leaks on the new hard lids that have been installed. We have a new vanity basin when the shower walls were changed - on older vans (normally over 5 years of age) the roof hatch lid can go quite clear and let a lot of UV light in but yours seems fine. The exterior doors are bought in via a third party supplier, in this case Camec. Although they try and match the colour to the vans this can vary slightly from batch to batch. Please see attached picture of another unit of the same age and type we currently have here at the factory workshop. I will ask Peter to make a note on your warranty file for reference to the door concerns but at this stage it is quite normal. The only outstanding parts item is the decals for the hard lids - we have managed to source a set for the front lid but not the rear so I may need to forward these onto Canberra when in stock. The unit is scheduled for delivery back to Jayco Sydney tomorrow morning and should be there on Thursday. 359 Mr Holman forwarded that email to Mr Bilbija. 360 That same day, on 18 November 2014, Mr Rigby sent an email to a carrier, copied to Mr Moyle, Mr Manning, Mr Morgan, and Mr Holman, arranging for Consumer TB's RV to be transported to Jayco Sydney the following day. 361 On 19 and 20 November 2014, Consumer TB and Mr Holman exchanged emails about arrangements for Consumer TB to collect his RV from Jayco Sydney, and in relation to Consumer TB's offer to sell the RV back to Jayco Sydney. Consumer TB stated - I was wondering when the best time is for me to pick the van up? I understand that it will be arriving on Thursday. I would really like it if both you and Tyrone [Bilbija] to be available at pick up. Also I was wondering if you have had the conversation with Tyrone [Bilbija] about purchasing the van? 362 Mr Holman replied - I have contacted the transport terminal and […] can't confirm a time for the van to arrive as it is still in transit to Sydney terminal, then it has to be dispatched to Jayco Sydney. I would advise that you pick up Friday morning to be on the safe side, perhaps around 11am? I am unable to confirm if Tyrone will be available, but I will certainly be here. I have previously spoken to Tyrone about your offer for Jayco Sydney to purchase your Expanda Pop Up, but unfortunately we are not looking to purchase a 16.49-3 at this time. 363 Consumer TB replied - I have organised time off work and will be there at approx. 11. Look forward to having everything perfect this time round. 364 On about 21 November 2014, Consumer TB took delivery of his RV from Jayco Sydney. Mr Holman stated that it seemed to him that the RV was completely repaired. Mr Holman also stated that Consumer TB looked over the van and accepted delivery of it, but said that he did not really want it. 365 On 25 November 2014, Mr Rigby sent an email to "Jayco Canberra Service", copied to Mr Holman and Mr Manning, in which he relevantly stated - We had the above van [referring to Consumer TB's RV] here at the factory for some warranty repairs via Jayco Sydney a week or so ago. We had to replace the hard lids but we did not get the rear decals in time prior to shipping back - I have forwarded these onto Jayco Canberra as I understand the owner lives there. Can you please install and put through a warranty claim through normal channels. 366 There is no evidence as to whether Consumer TB had these new decals installed on the RV.
Subsequent use and sale of the RV 367 Consumer TB stated that after the RV was returned to him following the repair works at the Jayco Corp factory in Dandenong, he never used it again. He stated that the discolouration between the original yellowed external panels of the RV, and the replacement vivid white panels, meant that the RV no longer looked new. Consumer TB also stated that since he did not use the RV again, he did not know whether there were any other issues with it, including whether it still leaked. During cross-examination, Consumer TB accepted that to the best of his knowledge, all of the repairs were completed at the Jayco Corp factory in Dandenong. 368 Consumer TB stated that he then sold the RV by private sale, for less than the $38,916 that he paid for it. During cross-examination, Consumer TB was pressed on the details of this re-sale. Surprisingly, given his attention to detail in other respects, he stated that he did not recall exactly what price he received for the RV, but that it was not thousands less than what he originally paid for it. I conclude from Consumer TB's evidence that he received not significantly less than $38,000 on the re-sale of the RV.
Consideration - defects in Consumer TB's RV 369 The defects in Consumer TB's RV which the ACCC alleged in its concise statement were as follows - Defects When defects identified When defects reported to Jayco dealer or service agent, or Jayco Corp
370 There was some duplication in the defects alleged by the ACCC in the particulars. For instance, the defect with the air conditioner referred to in item 3 appears to be the same defect as that alleged in item 4, and the internal leaking referred to in item 6 was likely caused by the crack in the water pipe behind the ensuite vanity referred to in item 8. The principal defects in the RV that have been proven to my satisfaction are - (1) leaking through the roof of the RV; (2) leaking through the bed lids of the RV; (3) ensuite walls de-laminating; (4) a defect with the air conditioner; and (5) a water leak caused by a cracked water pipe behind the ensuite vanity unit. 371 I also accept that there was a range of other issues affecting the RV that were of a lesser order, but which were still relevant, as they bore upon the total fit and finish of the RV, which is material to whether the RV was of acceptable quality for the purposes of s 54 of the ACL. Those other issues included the vinyl pop top, which was not properly glued where it covered some wires. 372 The defect with the air conditioner was repaired, but not until after a number of attempts. So too was the water leak caused by the cracked pipe, which was identified and repaired by Mr Holman of Jayco Sydney by 1 September 2014. I am not persuaded that the cracked pipe, or its cause, was present when the RV was supplied by Jayco Sydney. It is at least equally probable that the cracked pipe was caused by works undertaken by Jayco Canberra, which performed repairs to the ensuite in June 2014, which may have resulted in damage to the pipe. The pooling of water immediately in front of the ensuite door and the beading of water along the trim and edge of the walls and cabinetry had not been the subject of any observation by Consumer TB prior to the July 2014 trip, and in cross-examination Consumer TB accepted that it was a new issue. The significance of this is that, if relevant, Jayco Sydney as the supplier of the RV may not have been liable for the damage to the pipe caused by Jayco Canberra, or by Jayco Corp in the course of the supply of its repair services under the Jayco warranty. 373 Consumer TB referred in evidence to the leaking of water into the bed areas that occurred in the RV as a result of rainfall during family trips in May 2013, July 2013, and in the period prior to his email to Jayco Canberra on 5 February 2014. He was not challenged in cross-examination about the fact of these ingressions of water, or his descriptions of them. He was, however, challenged about whether upon taking delivery of the RV he had seasoned the tent sections in accordance with the manufacturer's recommendations contained in the Jayco owner's handbook, and accepted that he had not (see [206] above). However, I am not persuaded that the primary cause of the ingress of rainwater above the beds was any initial failure to season the tent sections in accordance with the manufacturer's recommendations. The ingress of rainwater continued beyond the first outing, and occurred on the trip to Queensland in July 2013, and on later trips in late 2013, and early 2014. I find that the likely cause of the leaking was a problem with the lid sections, which were the subject of attempted repairs on several occasions. 374 There were some respects in which I consider that Consumer TB was not representative of the hypothetical reasonable consumer. I formed the impression based upon the documentary evidence and his answers in cross-examination that Consumer TB was especially sensitive to the risk of any imperfections in his RV, when the statutory standard of acceptable quality is not, in this case at least, a standard of perfection. However, Consumer TB's levels of tolerance were tested by what were significant defects in the RV, and the languid approach taken by Jayco Canberra in its dealings with him about those defects. 375 As I have mentioned, after the RV was returned to Consumer TB from the Jayco factory in November 2014, he did not use it again, and he sold it. As I have also mentioned, Consumer TB expressed dissatisfaction with the colour of the new bed lids, which were white, and did not match the rest of the RV which had commenced to discolour. I am not persuaded in the absence of more precise evidence such as photographs or an objective appraisal, that this was an issue that would have troubled the reasonable consumer. I find that there is no reason to think that the RV was not fit for purpose after it had been repaired at the Jayco factory.
Was Consumer TB entitled to reject the RV? 376 As I have detailed above, Consumer TB's RV was repaired on approximately ten occasions: by Jayco Sydney in June-July 2013 and in August-September 2014; by Jayco Canberra twice in November 2013, in March 2014, another time in mid-2014, in June 2014 and in July 2014; by the Caravan Wizard at Nelson Bay in July 2014; and finally by Jayco Corp in Dandenong in September-November 2014. The documentary evidence relating to those repair works is incomplete, and I cannot be certain of precisely when all the repairs were conducted, and of all the work that was undertaken. In particular, some of the repair works undertaken by Jayco Canberra that I have placed sometime in mid-2014, in June 2014 and in July 2014, may have taken place over an extended period in which the RV remained at that dealership, as some of the correspondence suggests. Further, as I have stated in summarising the repairs to the RV, there are no warranty claim forms or other documents before the Court that provide an itemised description and cost of the works carried out on the majority of those occasions. This limitation of evidence makes it difficult to undertake a comprehensive assessment of the totality of the repairs conducted on the RV. Nonetheless, on the available evidence, it is apparent that an indicative cost of the repair works conducted on Consumer TB's RV included at least the following - (1) from the March 2014 Jayco Canberra repair works, referred to at [257] above, being repairs to the leaking bed lids and to address other issues with fittings inside the RV, a total cost before GST and not including the administration fee of $132.45; (2) from the June 2014 Jayco Canberra repair works, referred to at [269] above, which included the replacement of the de-laminating ensuite walls, the replacement of the roof tent and also repairs addressing other minor issues with fittings inside the RV, a total cost before GST and not including the administration fee of $3,080.66; (3) from the July 2014 Jayco Canberra repair works, referred to at [282] above, for the replacement of a mattress, a cost before GST and not including an administration fee of $384.00; (4) from the September-November 2014 Jayco Corp repair works at the factory in Dandenong, referred to at [351] above, an indicated value before GST of $5,239.57. 377 I have drawn the indicated value of the works undertaken by Jayco Corp at Dandenong from the quotation that Jayco Sydney prepared on 5 August 2014, as set out in the email at [284] above. That quotation accounted for "new shower walls, two new bed lids and decals to suit, a new roof, several extrusions and a hockey stick". Those works, along with some others, were later completed by Jayco Corp at its factory in Dandenong. This is evidenced by Mr Rigby's email to Consumer TB and Mr Holman dated 11 November 2014, set out at [351] above, in which he refers to the repair works conducted by Jayco Corp at its factory in Dandenong, including "replace bed lids", "roof tent replacement", "replace bed hockey stick" and "de-lam shower walls". The value of the works is indicative, because the direct cost of the works to Jayco Corp is not able to be quantified. 378 Together, the above works amounted to an estimated value of at least $8,836.68 worth of repairs to Consumer TB's RV. That does not include the cost of any repairs to rectify issues arising from Jayco Canberra's earlier repair works, such as Mr Holman's work in August-September 2014 to identify and fix the leak behind the vanity in the ensuite, or repairs to fix Jayco Canberra's defective fibreglass work. Further, it is likely that the actual cost of all of the repair works conducted on the RV, including the substantial number of works for which there is no quotation or cost in evidence, was higher. 379 The repair works required to be undertaken on Consumer TB's RV, conducted on approximately 10 occasions over the 15 month period between June 2013 and September 2014, are indicative of the extent of the defects in the RV. While I have found that Consumer TB was sensitive to some imperfections in his RV, and I accept to a degree Jayco Corp's submission that some of the defects in Consumer TB's RV were minor or merely cosmetic, and that some involved rectification of repairs that were attempted by Jayco Canberra, I nonetheless find that the extent of the defects in the RV was collectively significant. This is especially so in relation to the defective bed lids, which I find were the likely causes of the leaks that were such that the RV did not provide acceptable shelter from the weather, which went to the heart of one of its purposes. The absence of reasonable shelter from the weather detracted materially from one of the common purposes of an RV, including the opportunity to enjoy family holidays: cf, Moore v Scenic Tours Pty Ltd [2020] HCA 17; 377 ALR 209. I consider that the reasonable consumer would not have tolerated the extent to which Consumer TB's RV departed from the guaranteed standard of acceptable quality. I find that a reasonable consumer, fully acquainted with the defects and what was involved in attempting to repair them, would not have acquired the RV, and therefore there was a major failure. 380 Consumer TB made several requests for a refund, or a replacement RV. He made some of those requests to Jayco Canberra and to Jayco Corp, but importantly, he also made requests to the supplier, Jayco Sydney. My findings as to these requests are as follows - (1) on 5 February 2014, Consumer TB raised the possibility of a replacement RV in an email that he sent to Jayco Canberra, although he did not insist on a replacement RV (see [237] above); (2) on 4 March 2014, Consumer TB requested a refund in an email to Mr Manning of Jayco Corp (see [246] above); (3) on around 5 March 2014, Consumer TB requested a refund from Jayco Sydney (see [249] above): (4) on around 14 July 2014, Consumer TB requested a refund or a replacement RV in a telephone conversation with the receptionist at Jayco Canberra, and again in a telephone conversation with Mr Manning of Jayco Corp (see [272] and [273] above); (5) in around mid-July 2014, Consumer TB requested a replacement or refund from Jayco Sydney (see [277]-[278] above); (6) on 22 July 2014, Consumer TB requested a refund or replacement RV in a telephone conversation with Ms Guy of Jayco Sydney (see [280] above); (7) on 7 August 2014, Consumer TB requested a replacement RV in an email to Mr Manning of Jayco Corp and Mr Holman of Jayco Sydney (see [294] above); and (8) on 14 August 2014, Consumer TB requested a refund or replacement RV in an email to Mr Manning of Jayco Corp, and Mr Bilbija and Mr Holman of Jayco Sydney, which referred to his communications with New South Wales Fair Trading (see [319] above). 381 I find that Consumer TB's requests to Jayco Sydney for a refund or replacement RV were made within a reasonable time of the failure to comply with the statutory guarantee of acceptable quality becoming apparent having regard to the ongoing nature of the faults, and the failure of a Jayco authorised dealer to repair them. These failures to repair contributed to a full appreciation of the relevant failure to comply with the statutory guarantee of acceptable quality becoming apparent.
Purchase of the RV 382 In about April 2015, Consumer JT purchased a Jayco Expanda Outback pop top RV, with a single axle, from the dealer, Jayco Sydney. The agreement to purchase was effected at the Sydney Caravan Supershow at the Rosehill racecourse. Consumer JT attended the show at Rosehill, and spoke to a salesperson. The salesperson gave Consumer JT a brochure for Expanda vans, and Consumer JT was given a demonstration as to how to set up an Expanda van. 383 The two relevant features of Expanda pop top RVs, described at [202] above in relation to Consumer TB's RV, were also present in Consumer JT's RV. Those were the pop top roof and the hard bed lids over the canvas bed ends, both of which are illustrated in the picture below, which has been extracted from a Jayco brochure that was in evidence - 384 Consumer JT purchased the new Expanda RV to replace an older Jayco Eagle Outback pop top, which he considered was no longer large enough for his family, and which was difficult to set up. Consumer JT and his wife had three children, the eldest of whom had a serious physical disability. Consumer JT agreed to pay a purchase price for the Jayco Expanda of approximately $39,000. He paid a deposit of $1,000 upon ordering the RV from Jayco Sydney at the Rosehill Caravan Supershow, and paid the balance of the purchase price upon accepting delivery of the RV.
Pre-delivery check and repairs to the RV 385 Prior to delivery of the Expanda to Consumer JT, Jayco Sydney conducted a pre-delivery check of the RV and identified that a smoke detector in the RV was faulty. On 27 August 2015, Jayco Sydney removed and replaced the smoke detector, at a total cost of $20.63, which was borne by Jayco Corp.
Delivery of the RV and Consumer JT's initial concerns 386 Consumer JT took delivery of his RV at Jayco Sydney on 31 August 2015. Consumer JT gave evidence about advice that he received at that time in relation to weathering or seasoning the canvas on his RV, although there were some discrepancies between his affidavit evidence, and his answers in cross-examination on this topic. In his affidavit, Consumer JT stated that during the handover process, he was told by either a staff member of Jayco Sydney, Ms Naomi Eddison, or the service manager at Jayco Sydney, Mr Holman, that the RV had been thoroughly water tested before delivery, and that he understood this to mean that he was not required to soak or hose the canvas on the RV prior to use, or at any other time. However, during cross-examination, Consumer JT gave the following evidence - Q; What gave you the impression that there had been weathering prior to delivery to you? A: Because we were told that. Q: And who do you say told you that? A: Well, Jayco. Q: I beg your pardon? A: Jayco. Q: Who do you say told you that? A: Someone from Jayco Sydney when they rang me up and said that the van was in the production line and was getting weathered or water tested, and "you should be taking delivery of the van soon". Q: And when did that conversation occur, Mr [JT]? A: Before the delivery of the van. Q: Well, when before the delivery of the van do you say that conversation occurred? A: I can't recall the exact date. When they called me to say that the van was - you know, it was ready to get delivered, I guess. Q: So you say someone from Jayco Sydney, was it, rang you? A: Correct, yes. They called me and they - they said, "Your van is nearly ready to be, you know, picked up. This is what's going on". Q: "This is what's going on"? A: Well, you know, it's getting weather tested in the factory, getting delivered. "We will call you when it's in here". Q: And where do you give evidence of this conversation in your affidavit? A: I don't. Like I said, there's that much that has happened that probably things that I have missed. Q: I beg your pardon? A: There's that many things that have happened that I probably have missed. Q: So it's not anywhere in your affidavit; you agree with that? A: Not that I can recall, no. 387 For his part, Mr Holman gave evidence in response to Consumer JT's claim by drawing on his experience of the Jayco Corp production line. As I have noted in introducing Jayco Corp's witnesses at [110] above, Mr Holman worked at Jayco Corp for 14 years prior to joining Jayco Sydney. He stated that he had commenced his employment at Jayco Corp as an installation technician and finished as a production manager, and that during most of his time at Jayco Corp, his role was devoted to the pop top caravan line. Mr Holman stated that he knew that the RVs were not seasoned or weathered at the Jayco Corp factory, and therefore he would not have said anything to Consumer JT to suggest that weathering or seasoning the RV was not required. Further, Mr Holman stated that water testing an RV, and seasoning or weathering an RV, are not the same thing, and that the Jayco owner's handbook included clear statements about seasoning or weathering an RV. 388 This issue was relevant because Jayco Corp relied at trial on those terms of the owner's handbook set out at paragraph [80] above, which referred to soaking the canvas and allowing it to dry, twice, before use on an extended trip. In relation to the handbook, Consumer JT stated that upon taking delivery of his RV, he was given the owner's handbook, and his attention was drawn to the 12 month Jayco warranty. Consumer JT also gave evidence that after he took delivery of the RV, he read the handbook in the sense that he skimmed through the pages, but he did not read it in great detail. He gave evidence that he read the warranty information in more detail after he had experienced leaks in the RV, and that he recalled reading the first sentence of the terms of the Jayco warranty which refers to the RV coming with guarantees that could not be excluded under the ACL. Consumer JT gave evidence that he did not recall reading that part of the owner's handbook concerned with seasoning the canvas. 389 I do not consider that it is necessary to make complete findings about what Consumer JT was told about seasoning the canvas of his RV. Any failure to season has not been shown to be a cause of the substantial leaks that occurred in Consumer JT's RV in early January 2016, a matter to which I will come. Having said that, I accept Mr Holman's evidence that he did not suggest to Consumer JT that seasoning the canvas was not required, although I also consider that Consumer JT reasonably misunderstood statements from Jayco Sydney to the effect that the RV had been water tested as suggesting that nothing further was required to ensure that it was water proof. In any event, the relevant witnesses called by Jayco Corp accepted in evidence that the issues with leaks in Consumer JT's RV were not caused by any failure on his part to season the canvas, as I shall detail below. 390 Consumer JT referred in his affidavit to initial concerns that he held concerning his RV upon taking delivery of it from Jayco Sydney. He stated that upon taking delivery of the RV, he observed the large amount of silicone that had been used around the joints of the RV. He stated that he raised this with Mr Holman at the time of delivery. Mr Holman stated in his affidavit that he did not recall being present at the time of delivery of Consumer JT's RV, and that such attendance was not a usual part of his daily tasks, but that it was possible that he had been present. Consumer JT stated in his affidavit that he had been "shocked" by how the van looked at the time of delivery. He stated that it looked like it had been made quickly, and that only a rough job had been done. This evidence has to be reconciled with the mixed responses that Consumer JT gave in an online survey only a few days later, which I shall address below.
3 September 2015 - online survey 391 On 3 September 2015, Consumer JT completed an online survey about his RV, which was received by Jayco Sydney. In relation to sales comments, Consumer JT stated the following - We have found many defects with the van We contacted dealer and they are more than happy to work with me Unfortunately that has not helped the way we feel about the purchase as we are starting to regret it The van looks like it has been put together with silicone and there are many poor finishes I'm am more then [sic] happy to talk to Jayco and have someone from Jayco to come out and see the van I am very disappointed with the purchase Please feel free to contact me on [telephone number] 392 On the other hand, as to the overall presentation of the van, Consumer JT responded, "Excellent". Consumer JT stated in cross-examination that this comment applied to the overall presentation of the van, and that inside and out, he rated the RV as in a state of excellent presentation. Further on this topic, I note that later correspondence from Jayco Sydney (see [400] below) records that at around this time, Consumer JT advised Jayco Sydney that he "posted his survey too early and should have waited."
3-4 September 2015 - emails to Jayco Sydney 393 On 3 and 4 September 2015, Consumer JT sent a series of emails to Jayco Sydney in which he expressed concern about defects that he said that he had identified in his RV. Consumer JT attached to his emails photographs of those defects, namely a scratch on the bumper bar of the RV, a black rubber strip that was too short, a chip on a fibreglass panel on the outside of the RV's doorframe, and water entry caused by a leak. In one of his emails, sent at 6.00 pm on 3 September 2015, Consumer JT relevantly stated - I've also got a leak Can you please contact Jayco to get someone out asap to look over van 394 In a further email, sent at 6.23 pm on 3 September 2015, Consumer JT relevantly stated - I have sent you images of the external faults on the van, only to come home today and walk inside the van to find puddles of rain from last nights [sic] showers. Images have also been sent to you. I am extremely frustrated at these defects, one after another and after being told this van was water tested, I am having doubts about my purchase. I am requesting that my caravan is picked up from my place and replaced with a new one. This is not a second hand van, and if this is what I am experiencing now, who's to know what else will follow. Please excuse me taking out my frustration out [sic] on you in this email, but I did not expect to have these problems…. Especially the leaking. I would like to be contact [sic]asap regarding this with some answers. 395 Consumer JT's emails to Jayco Sydney were forwarded to Mr Holman. 396 Around this time, Consumer JT also noticed that there was a visible gap between the roof's canvas skirt and the body of the RV, and that the reflectors had fallen off the RV.
September 2015 - Jayco Sydney repair works 397 Consumer JT took his RV to Jayco Sydney so that it could be repaired while he was away on an overseas trip, and Jayco Sydney undertook repairs. Jayco Sydney produced a warranty claim document, which set out the repair works performed on Consumer JT's RV and by reference to which Jayco Sydney sought reimbursement from Jayco Corp for the works. The warranty claim document stated that the repair works required a total of 1.5 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and the cost was $112.50 in labour and $425.00 in parts, for a total cost with GST of $591.25. The warranty claim document included five line items of repair works, with a "reason" and a "detailed desc[ription]" for each item. Those items were - (1) an item with the stated reason "Damaged", with the description "Fibreglass repair - SOS. Chip in fibreglass, right hand side of door frame, from build. SOS has repaired chip in fibreglass" (the reference to "SOS" was a reference to a third party contractor, SOS Mobile Fibreglass); (2) an item with the stated reason "Damaged", with the description "Bumper bar is scratched. Was scratched from build. Bumper bar has been changed. Part was ordered for customer JAC1975Z. Part was freighted"; (3) an item with no stated reason, with the description "Black rubber infil [sic] above checker plate too short. Factory fault. Replaced 5 metres of rubber infill. Part was ordered for customer JAC2627C"; (4) an item with the stated reason "Water Leak", with the description "Leak in van. Front bed tent was missing silicone on corners, allowing water intrusion. Corners have been sealed with silicone, rear bed has also been checked OK"; and (5) an administration fee. 398 The document records that this warranty claim was approved by Jayco Corp on 4 November 2015. It was likely approved automatically as the total cost was below $1,000. 399 After these repairs were undertaken, Consumer JT's RV was returned to him. Consumer JT accepted in cross-examination that at that time, he did not have any complaints about the repair works, although he did not use his RV until his first trip about four months later, in January 2016.
September 2015 - Jayco Sydney correspondence with Jayco Corp. 400 On 8 September 2015, Mr Bilbija, the dealer principal of Jayco Sydney, forwarded the results of Consumer JT's online survey about his RV to Mr Chris Hooper, the RV regional sales co-ordinator of Jayco Corp. Mr Bilbija suggested to Mr Hooper, "Someone from head office may want to contact this guy?". Mr Bilbija also arranged for photographs of Consumer JT's RV to be forwarded to Mr Hooper. On Mr Bilbija's instructions, Ms Jessica Saffrett of Jayco Sydney sent an email to Mr Hooper that attached photographs of Consumer JT's RV, which had been attached to Consumer JT's emails to Jayco Sydney sent on 3 and 4 September 2015 and referred to at [393] above. In the email, she relevantly stated - Please find attached, photos related to this van. We have this van in here now to rectify his warranty issues. He did ring and say that he posted his survey too early and should have waited. Pic 1 - Scratch on his bumper bar. Pic 2 - Excess silicone throughout the van. Pic 3 - Rubber strip above checker plate that is too short. Pic 4 - More rubber strip that is too short. Pic 5 - Water leak. Pic 6 - Where the water is leaking. Pic 7 - Water leak. Pic 8 - Water leak. Pic 9 - Chip in fibreglass next to main door.
22 December 2015 - telephone conversation with Mr Manning of Jayco Corp 401 On 22 December 2015, Ms Guy of Jayco Sydney forwarded the results of Consumer JT's online survey about his RV to Mr Manning of Jayco Corp, and Mr Manning telephoned Consumer JT to discuss his concerns with his RV. Consumer JT referred to this conversation in his affidavit, although he could not recall the date in December 2015 on which it took place, or the name of the manager from Jayco Corp to whom he spoke. In his affidavit, Consumer JT stated that he outlined the "ongoing problems" that he had been having with his RV to a manager at Jayco Corp, and that he asked the manager for either a refund or for what he had paid for, namely a new RV. Consumer JT explained in cross-examination that the "ongoing problems" to which he had referred in his affidavit were that the reflectors fell off his RV while it was stationary in his driveway, that there was a scratch on the bumper bar, and that the fibreglass panel was chipped. In cross-examination, Consumer JT did not accept that those concerns were trival. Returning to his conversation with Mr Manning on 22 December 2015, Consumer JT stated that the manager said, "no, we will fix it", and that he was only offered a free annual service in response to his complaint, which he rejected. During cross-examination Mr Manning accepted that it was likely that his response to Consumer JT would have been to the effect, "bring it in, we'll fix it." 402 Later on 22 December 2015 after that telephone call, Mr Manning sent an email to Ms Guy and Mr Holman of Jayco Sydney, in which he relevantly stated - Thankyou Just finished call with him. Free annual service offer from us but nothing else. He's not happy. He said he will go to solicitor. We will fix Jayco warranty faults though 403 In respect of this telephone conversation, I accept that Consumer JT requested a refund or replacement RV. Consumer JT had already requested a replacement, in his email sent to Jayco Sydney on 3 September 2015 and referred to at [394] above, and I accept that he requested a refund or replacement RV during his conversation with Mr Manning. I also accept that Mr Manning responded by stating that Consumer JT's RV would be repaired, and by offering a free annual service. 404 Also on 22 December 2015, Mr Holman received a message from the reception of Jayco Sydney that provided him with Consumer JT's telephone number for a return telephone call. The evidence does not establish whether Mr Holman telephoned Consumer JT at that time.
Early January 2016 - trip to Ulladulla 405 Consumer JT's first trip with his RV was in early January 2016, when he and his family went to Ulladulla, on the New South Wales south coast. Consumer JT stated in his affidavit that on or around 3 January 2016, which was their first night in the RV, it rained and they experienced leaks through the canvas at the bed ends and through the awning that was outside. Consumer JT accepted in cross-examination that they experienced heavy rain, and Mr Rigby of Jayco Corp stated that at that time New South Wales experienced "extreme rainfall". Consumer JT stated that the water soaked the mattresses and bedding on which his children were sleeping, and that in the middle of the night, his disabled son was soaked and screaming such that he had to take him outside to the ensuite toilets in order to calm him down and get him dry. Consumer JT stated that this distressed and upset him. Consumer JT stated that his other children were also wet, and that he had to do the same thing for them. Consumer JT also stated that his son's PlayStation and the television in the RV became wet and damaged as a result of the leaks. This evidence was not challenged in cross-examination. 406 Early the following morning, at 5.13 am on 4 January 2016, Consumer JT sent an email to Jayco Sydney, requesting that it be forwarded to Mr Holman, in which he stated - Jason First night in the caravan And I'm up at 3am because the caravan is leaking. I'm not happy about this experience. Once again I'm going to request 1 - what I paid for (new van 2 - my money back Please call ASAP so we can discuss this further. 407 That email, and another email sent by Consumer JT later that morning, attached a number of photographs of the RV, some of which appeared to show water droplets around various components inside the RV. Those emails were forwarded to Mr Holman. 408 Consumer JT stated in his affidavit that later on 4 January 2016, Mr Holman called him and that they had a conversation to the following effect - Mr Holman: You have to give us a chance to fix it. Consumer JT: I have already given you a chance to fix it, and it's still not fixed. I want my money back or a replacement. Mr Holman: Look, you'll never get a refund or replacement from Jayco Sydney because we buy the caravan off Jayco Corporation. Once we buy the van, we then own it. Once we sell it off, it is up to us to do the warranty work, which gets paid by Jayco Corporation. But if we decide to give you your money back or a new van, Jayco Sydney have to buy the van from Jayco Corporation and give it to you. This money will have to come out of Jayco Sydney's pocket. Consumer JT: Jason, I can't do that to you. That's not fair. Mr Holman: That's the way it is. Consumer JT: That's not the way it should be Jason, you did not build the van, it was built by Jayco Corporation in Melbourne. You've done nothing but help me. 409 For his part, Mr Holman stated in his affidavit that he did not recall the conversation with Consumer JT on 4 January 2016, to which Consumer JT referred. Mr Holman further stated that he has never said to any customer that they would not get a refund or replacement without first inspecting the RV and discussing the request with the Jayco Sydney dealer principal, Mr Bilbija. Mr Holman stated that he did not have authority to provide refunds or replacements, and that his usual statement to customers asking for refunds or replacements was to ask them to bring the RV in for assessment of the problems. 410 Separately, Mr Rigby, who at the time was the customer relations manager of Jayco Corp, stated in his affidavit that he had a clear recollection of dealing with Consumer JT in early 2016. Mr Rigby stated that Consumer JT notified him that while he was on holiday using his RV, the front of his tent had leaked, resulting in a wet mattress. Mr Rigby stated that he told Consumer JT to purchase a new mattress so that he could still use his RV whilst on holiday, and said that Jayco Corp would reimburse him for the cost of an air mattress. Mr Rigby stated that the following day, Consumer JT called him to notify him that he had dried the mattress out in the sun, and that Jayco Corp should not worry about the air mattress. During cross-examination, Consumer JT stated that he could not recall any conversations to the effect of Mr Rigby's account. 411 In relation to these alleged telephone conversations, I accept that a conversation between Consumer JT and Mr Holman took place after Consumer JT sent his email to Jayco Sydney on 4 January 2016, and I accept that consistently with that email, he requested a refund or a replacement RV, to which Mr Holman did not agree. Otherwise, I do not find it necessary to make detailed findings in relation to the conversation, save that I am not persuaded to find that Mr Holman advised Consumer JT that he would "never get a refund or replacement from Jayco Sydney" in circumstances where Mr Holman had not inspected the RV on that occasion. I accept that Consumer JT discussed the substance of his concerns with Mr Holman in the conversation, and that Mr Holman indicated that Jayco Sydney would need to assess the RV before making any decision as to whether to grant Consumer JT's request for a refund or replacement, as was Mr Holman's practice with other such requests. Furthermore, Mr Holman was cross-examined on the basis that it was likely that he told Consumer JT that he needed to give Jayco Sydney a chance to fix the problem, which proposition he accepted. 412 Separately, in relation to Mr Rigby's evidence of speaking to Consumer JT in early 2016, I find that Consumer JT spoke to Mr Rigby around this time, and that the discussions between them were as described by Mr Rigby in his evidence. 413 Mr Rigby gave evidence that at this time, he considered that the leaks were likely caused by the extreme rainfall in New South Wales during the 2015-2016 Christmas-New Year Period and Consumer JT failing to season the tents of his RV as described in the owner's handbook, such that water could have entered through the stitching holes. Mr Holman held the same view at that time. However, Jayco Corp later discovered that there was a manufacturing fault that caused leaks through the bed lids of the 2015 model Jayco Expanda, for which it later distributed to its dealer network a bulletin setting out the method to install a fix, as I shall address below. During cross-examination, Mr Holman and Mr Rigby each accepted, with the benefit of hindsight, that Consumer JT's problems with leaks in his RV had nothing to do with any failing on his part to season the canvas.
Early 2016 - request for extras from Jayco Sydney 414 Consumer JT stated in his affidavit that in early 2016, after his first trip with his RV to Ullladula, he asked Mr Holman whether Jayco Corp or Jayco Sydney would provide him with compensation for the issues that he encountered in the form of free extras for his RV, namely a bike rack, a barbeque, storm covers, and an annex. Consumer JT stated that Jayco Sydney agreed to provide him with free storm covers.
Mid to late January 2016 - correspondence with Jayco Sydney 415 On 19 January 2016, Consumer JT sent an email to Mr Holman of Jayco Sydney in which he stated - Hi Jason As you are well aware of the ongoing issues I am having with my new purchase of the Jayco Expanda, I am also aware that you are willing to help solve these issues and I am also aware that my first service is due on 1 February 2016. However, I can no longer deal with this stress that Jayco has put myself and family through, after the horrible experience we have endured on our first trip away. I purchased a new caravan for the purpose of not encountering these types of problems, and after waking multiple times throughout the night, only to find my child who is disabled, drenched all over and crying, this was the last straw. This happened for nearly 4 days in a row. You cannot keep ensuring me that these leaks will stop because they only got worse. I am also aware that according to the ACCC and the Dept Fair Trading which we have contacted, once your van is used, it is no longer considered a New van. However, as you are well aware, these issues occurred prior to us ever using he [sic] van, in fact, it was sitting in our yard when it first leaked. Jayco then rejected my request for my money back or new van, and said that the problem would be fixed under warranty. On the delivery of the van the second time after warranty repairs were done, I was assured that the van was definitely water tested once again, as I was informed that it is tested in the production line. So, I am aware that the canvas has to be weathered properly twice as stated in your handbook. It was weathered at the factory during water testing, we then picked it up and it rained at home (the first leaks occurred), it then was re water tested after repairs were done under warranty at Jayco St Mary's again. That is 3 times already. Jason, $40,000 for a product, anyone would hope that this product would be ready to be used upon purchase. It's like purchasing a new vehicle with no windscreen. Not only do we have a leaking van, we also discovered more defects along the way, together with drenched mattresses which will mound [sic], expensive pillows which were purchased from my physio for the family ($900), drips through the awning that you viewed on the image that damaged my sons PlayStation also. Jason, I will never put myself nor my family through this horrible experience again. I will be taking everything out of the van and dropping it off to you on Saturday, as I won't be bullied an [sic] longer by Jayco. Please advise me of what time is suitable for you. I would like my van replaced with a brand new one or my money returned. I am very dissatisfied with this Jayco product. 416 Later on 19 January 2016, Mr Holman forwarded Consumer JT's email to Mr Bilbija. The following day, on 20 January 2016, Mr Holman also forwarded Consumer JT's email to Mr Manning of Jayco Corp, and relevantly stated in his covering email - Please see below email from Mr [JT], T49313. You have spoken to this customer before and the last time we talked we offered him a free annual service and from there he was going to take this matter to his solicitor. Since then, he has taken his van away again, as it seems, we still haven't been able to fix his water leaks despite testing prior to him picking it up. We have had some serious storms whilst he was using his van, I have taken a phone call from him and I told him to wax the stitching to see how this would go. Please advise on replacement. 417 During cross-examination, Mr Holman accepted that his request for Mr Manning to advise on replacement was consistent with his usual practice to put such requests to Mr Manning. 418 Later on 20 January 2016, Mr Manning responded to Mr Holman, relevantly as follows - Please do full assessment and quote for Jayco with photos. This will need to [go] past Paul Morgan to review for replacement van. I do not know if Jayco will offer this; but this is the process. 419 After receiving that email from Mr Manning, Mr Holman sent two further emails to Mr Manning, which forwarded the photographs of the RV that Consumer JT had sent to Jayco Sydney by him emails on 4 September 2015 and 4 January 2016, referred to at [393] and [406] above. 420 Later again on 20 January 2016, Mr Manning responded to Mr Holman, relevantly as follows - I have let Paul [Morgan] know you will send report and quote once you have assessed. As the owner wants a new van. 421 There was no evidence that Mr Holman submitted to Mr Manning, or Mr Morgan, an assessment and quotation for Mr Morgan to review whether Jayco Corp should supply a replacement RV. 422 On 21 January 2016, and given that Mr Holman had not yet responded to his email sent three days earlier, Consumer JT sent a follow-up email to Mr Holman, in which he relevantly stated - I am still waiting for a reply with regards to what time I am able to drop off the van on Saturday I am assuming in the morning. Awaiting your response 423 Later on 21 January 2016, Mr Holman responded, relevantly as follows - I am sorry to hear about the issues you are having with your van, Expanda Pop T49313. As you are aware, our service department is not open on Saturday or Sunday, so we would like to offer to pick your van up to make it more convenient for yourselves. I have forwarded your request for a new van to Head Office and they have instructed me to report back with my findings. If your request for replacement is not met, I will replace the affected tent sections and replace the mattresses. The van will be thoroughly water tested and I will invite you to see this process. Please let me know if and when you would like the van picked up. 424 Later still on 21 January 2016, Consumer JT responded, relevantly as follows - Thank you for your email. Picking up the van will be very helpful. Tomorrow will be great in the morning if that's suitable for you. Please let me know and I will assure someone will be there to open up. 425 And finally on 21 January 2016, Consumer JT sent a further response to Mr Holman, in which he relevantly stated - I apologise for my short responses today as I was busy with work. I appreciate you requesting a new van to Jayco on my behalf, and can I confirm that I will not in any case accept any more fixes on this product. As Jayco should be well aware, and it was brought to my attention, this is not an isolated issue with this model. I am not prepared to go through this again, as money has already been lost on this van. I am completely entitled to a new product as this one is 'not fit for purpose' as instructed under consumers guarantees. I have emptied the van and have left in there some parts that have fallen off during this time. The crack in the external rear fibreglass can be seen clearly in this image also. I look forward to hear [sic] from you. 426 That email attached a photograph showing a small imperfection on the external rear fibreglass panel of Consumer JT's RV. Mr Holman forwarded the email to Mr Rigby of Jayco Corp, and also separately forwarded it to Mr Bilbija of Jayco Sydney. 427 Consumer JT and Mr Holman then exchanged some further emails in which they settled on the details of the arrangements for Jayco Sydney to collect the RV the following morning. 428 On 22 January 2016, Mr Rigby sent an email to Mr Holman, in response to Mr Holman's earlier email which had forwarded to him a copy of Consumer JT's emails to Mr Holman sent on 19 to 21 January 2016 referred to above. Mr Rigby relevantly stated - Please send through a report of findings once inspected - from the email below it does not seem the tents have been "seasoned" correctly as this is not done at the factory which seems to be the owners [sic] perception. 429 Mr Rigby was challenged in cross-examination about the fairness and the merits of his suggestion to Mr Holman that a failure to season the tents may have been a cause of the leaking, in response to which he accepted that his assessment had been incorrect. However, it was not squarely put to Mr Rigby that his suggestion in the above email was not made honestly and in good faith. The tenor of Mr Rigby's evidence was that at the time they did not know of the actual fault, and that a fix had not been developed.
Telephone conversation with Jayco Corp 430 Consumer JT stated in his affidavit that "around this time", although he could not recall precisely when, he had a conference call with a manager from Jayco Corp and one of his bosses, whose names he also could not recall. Consumer JT stated that during this conversation he was again told that he would not be given a refund or replacement, and was told that his RV was under warranty, that he needed to give Jayco a chance to fix it, and that they would fix it. There is no reference in any of the contemporaneous documents to any conference call with Consumer JT of the type described. However, Consumer JT was not challenged about this evidence in cross-examination, and none of the witnesses called by Jayco Corp directly addressed the topic. As to the Jayco Corp witnesses, Mr Morgan stated in his affidavit that he did not recall dealing specifically with any of the consumers the subject of this proceeding. Mr Manning's communications in relation to Consumer JT in January 2016 were with Jayco Sydney. Mr Rigby's affidavit purported to give a complete account of his conversations with Consumer JT, and it did not refer to a conference call of the type referred to by Consumer JT. Mr Austin had retired by July 2015. And Mr Murphy stated that he had no recollection of Consumer JT's name, van, or circumstances. 431 I am not bound to accept Consumer JT's evidence that he participated in a conference call with two employees of Jayco Corp on account of the fact that he was not challenged about it in cross-examination: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561 (Kirby P) and 586-7 (Samuels JA). However, I accept his unchallenged evidence about the conference call, and the statements that were made to him. There is nothing inherently improbable about it, and moreover there was no submission by Jayco Corp that the evidence about what was said to Consumer JT in the conference call should not be accepted. However, I am not able reliably to make a finding about precisely when this conference call occurred.
January to February 2016 - Jayco Sydney assessment and preparation for repair works 432 On 22 January 2016, Jayco Sydney arranged for Consumer JT's RV to be collected from his home and taken to Jayco Sydney. After the RV arrived at Jayco Sydney, Mr Holman sent an email to Consumer JT, in which he relevantly stated - I am writing to confirm that your Pop Expanda, T49313, has arrived to our dealership. As per the request from Head Office, I will investigate the issues with your van and report back to them for assessment. Jayco Head Office is currently working on a solution for the leak between the bed lid and van and will forward this to us shortly. I will be in contact with you when notified with the direction Head Office wants Jayco Sydney to proceed after submission of assessment. I will note the chip on the rear lid also. 433 Mr Holman's email supports inferences that by this time, Jayco Corp was aware of the bed lid leak issue on the 2015 model Expanda, and that it was working to develop a fix for that issue, and that Jayco Sydney was also aware of that situation. 434 The next day, on 23 January 2016, Mr Holman sent an email to his colleague Ms Saffrett in which he listed the parts that needed to be ordered for three RVs, relevantly including Consumer JT's RV. I infer from that email that Mr Holman had assessed Consumer JT's RV and identified the parts that he considered were required to repair it. In his email, Mr Holman relevantly stated as follows - As per our discussion yesterday, can you please order the following parts and retain order numbers for express shipment: … [Consumer JT] T49313 Front bed tent section Rear bed tent section Front innerspring mattress Rear innerspring mattress 435 Later on 23 January 2016, Ms Saffrett responded by relevantly stating "All of these tent sections need authorisation to order. Do you still want me to seek authorisation from Pete [Manning] or is he or someone else aware of all of these already?" Mr Holman responded by requesting that Ms Saffrett "seek auth[orisation] from Pete [Manning]". 436 On 27 January 2016, Mr Holman sent an email to a third party fibreglass repair business, SOS Mobile Fibeglass, in which he requested a quotation to repair the "chip the size of [a] fingernail" on a fibreglass panel of Consumer JT's RV. The next day, SOS Mobile Fibreglass quoted $346.50 for the repair. 437 Also on 27 January 2016, Ms Saffrett sent an email to Mr Manning, in which she relevantly stated - This customer [JT] picked up from us on the 31/08/15. Since then, they have had their van [brought] back to us numerous times regarding issues with their van - poor quality/workmanship. Customer requires new front and back bed end tent section - A04-177A and A04-177 - his current tent sections are leaking and ill-fitting. Can I please have authorisation to order replacements? 438 Later on 27 January 2016, Mr Manning responded to Ms Saffrett, relevantly as follows - That's fine but I need to make sure your team does the new fix for the bed ends leaking once we release it soon. Hopefully this week. Order new tents on this occasion too. Should not really need them on other vans. Just the fix. 439 Mr Manning stated that while he had approved the replacement of the tents on Consumer JT's RV, he wanted to make clear to Jayco Sydney that the Jayco Corp research and development department was looking into the 2015 model Expanda bed lid leak issue, and that a fix would be released to the Jayco dealer network soon. 440 On 28 January 2016, after Jayco Sydney had received the order numbers for the parts that it had requested from Jayco Corp for the three RVs including Consumer JT's RV, Mr Holman sent an email to Mr Rigby and Mr Dennis Body of Jayco Corp, in which he requested that the parts be delivered urgently - Please see below attached email with order numbers in red. Can these be pushed through urgently please as these 3 customers are taking us to fair trading. We have marked these orders as priority, please contact me if there are any issues. As soon as you know a time frame, please notify so I can prepare for the works to be carried out. 441 Mr Rigby forwarded that email to several colleagues at Jayco Corp and asked that they "please prioritise orders below for tent section if possible" because "Jason [Holman] needs some assistance as both these owners are requesting full refunds so he wants to carry out the repairs asap." Mr Rigby received a response that his colleagues would "get onto it ASAP". 442 Mr Holman stated that around this time, he was reviewing the Jayco dealer feedback forum to see if any other Jayco dealers were aware of similar problems with leaks occurring on 2015 model Expanda RVs. Mr Holman was aware that there was a recurring issue and that the Jayco Corp research and development department was working on a solution. On 28 January 2016, Mr Holman sent an email to Mr Bilbija that forwarded a table from the Jayco dealer feedback forum in relation to this issue, which was as follows - Feedback Forum Issue 2042 added on 20/01/2016 has been responded to. Feedback Forum Issue Subject: Water leaking through expanda bed tent stitching Issue: I have these 2 vans at the moment with water leaking through the stitching on the bed end tents. Both customers [sic] bed ends leak, which we understand there is a fix being worked [on] now, this would not help the situation. The tents have been weathered but still leaking. The water seems to be especially bad above the tent bow. Both these customers are seeking replacement vans from the amount of water coming in. -21 January 2016 Ben Cribbin, Jayco Cairns: Yes we have had numerous expanda's come back since xmas with this exact problem we have been water proofing and then testing seems to be working. -22 January 2016 Robert, Jayco Canberra: We are also having the same water ingress issue's [sic]. Out [sic] workshop has carried out repairs that the Factory has advised us to carry out after numerous phone calls. The customer has advised us that he is still having leaks. They are also now making noises about a replacement van and Fair Trading. T66079 Cheers…Robert -27 January 2016 Jason Holman, Jayco Sydney: T49313 [being the chassis number of Consumer JT's RV], T56532, T44146, T49463, T49362 Previous Responses: Gents , CHASSIS numbers PLEASE on the affected units. Allan Thanks Jason [Holman] for the chassis numbers Further response added today is: After investigating, the sewing section are to use a thinner needle and to change the needles every day. When needles get blunt it could be making a bigger hole. Alan
443 On 1 February 2016, Mr Holman sent a further email to Consumer JT, in which he relevantly stated - I have submitted a report to Head Office for your van, T49313, and they have denied your request for a new van, they have instructed me to order replacement parts. Upon investigation, I have found that the stitching in the bed tents would not be able to swell enough to fill the hole of the needle. I have ordered new bed tents for the front and rear and mattresses to suit. I have also had the fibreglass chip on the rear lid authorised to be repaired. I have liaised with Head office to have these parts shipped ASAP to resolve this matter as quickly as possible. Jayco Head Office is currently working on a solution to stop the water ingress between the lids and the van and will provide us with the direction we need to take shortly. I'll be in contact with you once parts arrive. Any questions, please don't hesitate to contact me. 444 In relation to this email, Mr Holman said in cross-examination that he was communicating an instruction that he had received from Jayco Corp that it would not replace Consumer JT's RV. Mr Holman was not asked to specify from whom he received that instruction. For his part, during cross-examination, Mr Manning could not recall whether he was involved in that decision, or whether he escalated it to Mr Morgan or Mr Murphy, and the evidence did not otherwise disclose the person from Jayco Corp who instructed Mr Holman. Mr Holman also gave evidence that he identified that the problems with Consumer JT's RV were the known 2015 Expanda model bed leak lid issue, and also that the stitching holes in the canvas were too big, which had nothing to do with seasoning the canvas. 445 Later on 1 February 2016, Consumer JT responded to Mr Holman, relevantly as follows - Thank you for your email. Please do not proceed with any repairs on the van until you hear from myself or my solicitor. 446 Mr Holman forwarded that email to Mr Manning, and relevantly stated "Customer does not want us to proceed with any repairs until notified." 447 Mr Manning responded to Mr Holman later on 1 February 2016, relevantly as follows - No worries. If you have storage problems advise owner their insurance probably won't cover unless you are doing repairs on van. [Your] business is not to store vans. Only repair them. They cannot just leave van with you. It is their property. You can charge a small storage fee if you need the van out to allow for other vans in [sic] come in and work on. 448 Mr Holman forwarded a copy of that email to Mr Bilbija. Mr Bilbija stated that he considered Mr Manning's comments about accommodating Consumer JT's RV at Jayco Sydney to be reasonable, as Jayco Sydney had previously had several customers who had attempted to store their RVs at the dealership. Mr Bilbija further stated that while Jayco Sydney had indicated to such customers that a service fee may be charged for storing their RV, to the best of his knowledge, no such fee had ever actually been charged. 449 On 2 February 2016, Mr Holman sent an email to Mr Rigby seeking an estimated time of arrival for the parts that he had urgently requested for three RVs, including Consumer JT's RV. The next day, on 3 February 2016, Mr Rigby followed up with his colleague, Mr Body of Jayco Corp, who advised that "Orders have been written and under way", and provided the work order numbers for the mattresses and tents that had been ordered.
January to February 2016 - Fair Trading complaint 450 Around late January or early February 2016, Consumer JT lodged a complaint in relation to his RV with New South Wales Fair Trading. There is no copy of this complaint in evidence. Soon after Consumer JT lodged his complaint, he received a letter in response from New South Wales Fair Trading, which relevantly stated - As discussed, your concerns were brought to the attention of Mr Jason Holman, Manager at Jayco Sydney. Mr Holman advised that the necessary repair will be covered under warranty pending your approval. Mr Holman further advised that a refund or replacement will not be provided as the issues are minor. NSW Fair Trading cannot order or direct either party to resolve a complaint, only a court or a tribunal can do this. If a mutual agreement between the parties is not reached, we do provide options that may assist you reach a resolution. This may include tribunals, other government departments or independent legal advice. 451 Consumer JT stated that he was disappointed by this response and that he felt that Jayco Sydney were talking down the problems with his RV, which he considered to be major, as they were affecting his ability to use and enjoy the RV. It is apparent from subsequent events that Consumer JT decided to engage with Jayco Sydney directly, rather than proceed with his complaint to New South Wales Fair Trading.
February 2016 - meeting with Mr Holman 452 Around early February 2016, Consumer JT met with Mr Holman at Jayco Sydney. Consumer JT and Mr Holman gave conflicting evidence about what occurred during this meeting. 453 Consumer JT stated that he explained to Mr Holman the difficulties that he was having with his RV, and that Mr Holman repeated that he would not be able to do anything about providing Consumer JT with a refund or replacement. Consumer JT stated that Mr Holman said that the RV was second-hand, so Consumer JT could not just get a refund or replacement. Consumer JT stated that Mr Holman explained that Jayco Sydney bought RVs from Jayco Corp, and that it was up to Jayco Sydney to offer any refund or replacement out of its own funds, such that Jayco Sydney would lose money if it provided Consumer JT with a refund or replacement. Consumer JT stated that Mr Holman said that if he wanted a new RV or his money back from Jayco Sydney, then he would have to go to court. Consumer JT also stated that during this meeting, he showed Mr Holman the warranty page of the Jayco owner's handbook, and a page from the New South Wales Office of Fair Trading website which was in evidence with headings "What is a major problem?" and "Guarantees on products". Consumer JT stated that he and Mr Holman then had a discussion about whether the leaks in his RV amounted to a "major fault", which was to the following effect - [Mr Holman] Yours is not a major fault so you are not getting your money back. The problems with your caravan were not a major fault because we have had a whole heap of vans come through with the same problems and they've fixed them. We know what the problem is. The issues can be repaired so it is a minor fault. [Consumer JT] Well, if you knew what the problem was, you would have fixed it the first time and I have given you plenty of opportunities to fix it. 454 Consumer JT was not cross-examined in relation to his account of the meeting with Mr Holman. 455 For his part, Mr Holman disputed Consumer JT's account of this meeting. Mr Holman stated that he was certain that he did not tell Consumer JT that he could not give him a refund because his RV was second-hand, or that he would need to go to court if he wanted a new RV. Mr Holman explained that his role was not to provide refunds, and that he could not recall any occasion when he suggested to a customer that they take Jayco Sydney to court, and that he would never say such a thing. Further, Mr Holman stated that he did not believe that he said that Jayco Sydney would lose money if it gave Consumer JT a refund or replacement, as that was not something that he would ever say to a customer, and he did not believe he had ever said such a thing. Mr Holman also stated that he did not believe that Consumer JT showed him the warranty page of the Jayco owner's handbook, or a page from the New South Wales Fair Trading website. Finally, Mr Holman disputed Consumer JT's account of their discussion about whether Consumer JT's RV had a major fault, which I have set out above. Mr Holman stated that he was confident that he would never have made the statement attributed to him, as it was not his role to make any decision or statement like that, and because every case was considered on its merits, such that any broad statement about the treatment of many RVs would not accord with his understanding of how decisions were made on such requests. 456 Mr Holman was not cross-examined about his evidence as to what was said at this meeting. 457 I find that at this meeting, Consumer JT again requested a replacement or refund, and that Mr Holman on behalf of Jayco Sydney advised Consumer JT, in substance, that his request was refused. I do not consider it necessary to make findings in relation to the other disputed facts in the accounts of Consumer JT and Mr Holman, and the absence of cross-examination indicates that neither party considered the resolution of any differences to be material.
February 2016 - Jayco Corp bulletin with fix for the 2015 model Expanda bed lid leak issue 458 On 1 February 2016, Mr Rigby sent an email to the network of Jayco dealers and service agents in relation to the 2015 model Expanda bed lid leak issue. The email relevantly stated - Dear Dealers and Service agents, Please see attached service bulletin for 2015 Expanda bed lids - please carry out this repair for any owners experiencing water entry through the bed lid hinge and the top corners of the bed tent below this area. A copy has also been put on the Jayco google drive for those with access for future reference if necessary. It is also important to confirm the tents have been weathered as per the instructions in the owners handbook prior to use and if necessary a suitable water repellent applied to the stitching. Thank you for your ongoing support. 459 The attached five page service bulletin provided instructions for the repair of the 2015 model Expanda bed lid leak issue. The bulletin stated that the total labour allowance for the repair was 45 minutes per bed, and that the repair required two parts, being a white tape seal and translucent silicone, as well as the use of four tools, being a vice grip clamp, a silicone gun, vinyl prep, and rags. The steps for completing the repair were to install a white tape seal adjacent to the bed lid hinge, to clamp the internal corners to secure the tent, and then to apply silicone to the tent corners. Mr Bilbija forwarded the email and attached service bulletin to Mr Holman, who in turn forwarded it to a number of other employees of Jayco Sydney. 460 Mr Rigby gave evidence about the fix for the 2015 model Expanda bed lid leak issue. Mr Rigby stated that the issue was that the hinge on the lid created a very small gutter, such that a period of very heavy rainfall would lead to water exceeding the hinge height and resulting in water getting through the hinge bar and onto the tent. Mr Rigby stated that the issue was localised to the hinge area and that any leak arising from the issue would not cause permanent damage to the RV. Mr Rigby also stated that the issue might not have been discovered if it were not for the extreme rain over the 2015-2016 Christmas-New Year period, when numerous customers reported it. Mr Rigby stated that the fix was simple and that it would take about 30 minutes to complete, although in this respect I note that the Jayco bulletin provided a labour allowance of 45 minutes. 461 This evidence of Mr Rigby needs to be considered in light of other correspondence before the Court, which indicates that a dealer, Brisbane Camperland, raised with Jayco Corp in February 2015 its concerns with the 2015 model Expanda bed lids, including that the lids did not seal to the body of the RV. That correspondence was not put to Mr Rigby in cross-examination. It was, however, put to Mr Murphy who accepted that as at February 2015, he was aware of a problem with the hinge of the bed lid that resulted in water penetration, and that other dealers had also raised this problem with Jayco Corp by that time. While I accept that evidence of Mr Murphy, I also accept the detailed evidence of Mr Rigby that Jayco Corp only experienced an increase in reports of leaks through the 2015 model Expanda bed lid following heavy and consistent rain over the 2015-2016 Christmas-New Year school holidays, despite the model of RV being in use for more than eight months beforehand, including a Melbourne winter without any known issues.
February - March 2016 correspondence 462 Consumer JT stated that after his meeting with Mr Holman in early February 2016, referred to at [452] to [457] above, he decided that since he was not going to get a refund or a replacement, he would allow Jayco Sydney to undertake repairs to his RV. He stated that around this time his RV went into Jayco Sydney for repairs, and that those repairs probably took more than a month. The evidence as to precisely when Consumer JT's RV went into Jayco Sydney for repairs, or when those repairs were conducted, was somewhat imprecise. There is evidence of correspondence between Consumer JT and Mr Holman in mid-February 2016 which suggests that by that time, Consumer JT's RV was at Jayco Sydney for the repairs to be undertaken. 463 On 12 February 2016, Consumer JT sent an email to Mr Holman, in which he relevantly stated - Firstly, thank you for your time the other day. It much much [sic] appreciated and glad we can begin to resolve these matters. I forgot to mention one thing regarding repairs. The table directly in front of the door of the caravan, where it is screwed into the wall, you will see that the left hand side is faulty where it's screwed onto the wall. Not sure if screws were too short or table has dropped. Can you please check that out also?.. 464 On 16 February 2016, Mr Holman responded to Consumer JT, relevantly as follows - Sorry for the late reply, I was on annual leave Friday and Yesterday. I will pass on this information to our team and have this addressed. Our team will be in contact when parts start to arrive. 465 There is also evidence of correspondence between Jayco Sydney and Jayco Corp, and Jayco Sydney and SOS Mobile Fibreglass, which suggests that repairs were conducted on Consumer JT's RV during February and March 2016, as parts became available. 466 On 16 February 2016, Ms Rachel Cotterill of Jayco Sydney sent an email to other staff, including Mr Holman, providing an update on the status of parts orders for numerous customers, including the tents and mattresses for Consumer JT. 467 On 17 February 2016, Ms Cotterill sent an email to Mr Manning seeking authorisation to order a replacement awning for Consumer JT's RV, relevantly as follows - Just need authorization for a replacement Awning for this customer. The awning tube is damaged. Our Service manager [Mr Holman] has spoken to Phil [Rigby], they have agreed that the Awning needs to be replaced. I just need an authorization to order. 468 Later on 17 February 2016, Mr Manning responded by providing an authorisation number for that order. 469 On 23 February 2016, Ms Madelyn Wadley of Jayco Sydney sent an email to her colleague, Ms Saffrett, asking that bottom overhead rails be ordered for Consumer JT's RV if that had not already been done, and attaching photographs. Ms Saffrett forwarded that request to Ms Cotterill for action. 470 On 1 March 2016, Mr Holman sent an email to SOS Mobile Fibreglass, in which he requested "please proceed with repair" of the chip on the fibreglass panel of Consumer JT's RV, as previously quoted. 471 On 12 March 2016, Ms Saffrett of Jayco Sydney sent an email to Mr Manning in relation to the replacement front tent for Consumer JT's, relevantly as follows - I'm sure you have a lot on record for this van. Customer picked up on the 31/8/15. We recently ordered him a replacement front tent section as the stitching holes were too big, allowing water intrusion. His replacement also has large holes and the stitching is poor quality. This customer has had many issues with their van, with the main issues being the water leaks damaging their mattresses and requiring both new tents. But the replacement front is no better than the last. Can I please have authorisation to order customer another replacement front tent section? 472 On 15 March 2016, Mr Manning responded to Ms Saffrett by stating "Please send pictures for evidence to the sewing department here". Mr Manning gave evidence that he requested these photographs so that he could send them to the Jayco Corp sewing department, which hand stitched a large number of tents for Jayco RVs. Mr Manning and Mr Rigby each gave evidence that occasionally the department would fail to notice that stitching holes had become too large because the needle had gone blunt, although usually this issue was picked up in the manufacturing process by placing each tent over a light box that illuminated the stitching holes. 473 On 24 March 2016, Ms Saffrett sent Mr Manning an email that attached six photographs of Consumer JT's RV, as requested. Ms Safrett stated, "Please see pictures attached. Please also note the fly screen has been overlapped in places as well." One of the attached photographs showed light shining through small holes in the canvas tent of Consumer JT's RV. There is no evidence of any further correspondence between Jayco Sydney and Jayco Corp in relation to defects in the replacement tents installed on Consumer JT's RV.
February - April 2016 Jayco Sydney repair works 474 Jayco Sydney produced three warranty claims for the works performed on Consumer JT's RV during this period. Jayco Corp approved all of the claims. 475 The first warranty claim document was for the replacement of the tents and the mattresses in Consumer JT's RV, and for the transport of Consumer JT's RV to and from SOS Mobile Fibreglass in the suburb of Penrith in western Sydney. The document stated that the date of repair was 28 January 2016, however the above correspondence demonstrates that these works must have been conducted at a later date after the required parts arrived at Jayco Sydney. The warranty claim document stated that the repair works required a total of 2.75 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and the cost was $206.25 in labour and $315.00 in parts, for a total cost with GST of $573.38. The warranty claim document included four line items of repair works, with a "reason" and a "detailed desc[ription]" for each item. Those items were: (1) an item with the stated reason "Water Leak", with the description "Water leaking through needle holes in tent section, needle too big. Water also pooling and sagging the tent. Replaced tent ends"; (2) an item with the stated reason "Water Leak", with the description "Mattresses damaged due to water leak front and rear tents; (3) an item with the stated reason "Damaged", with the description "Fibreglass chip on rear bed lid. SOS fibreglass to repair. Travel to and from Penrith. Chip found on bed lid (rear). From build/manufacture Fibreglass repair carried out"; and (4) an administration fee. 476 The second warranty claim document was for a range of other works conducted on Consumer JT's RV. The document stated that the date of repair was 1 February 2016, however I infer from the other evidence relating to Consumer JT's dealings with Jayco Sydney around this period that these works must have been undertaken at a later date, and likely over several days. The warranty claim document stated that the repair works required a total of 13.85 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and that the cost was $1,038.75 in labour and $222.16 in parts, for a total cost with GST of $1,387.00. The warranty claim document included 15 line items of repair works, with a "reason" and a "detailed desc[ription]" for each item. Those items were - (1) an item without a stated reason, with the description "1st SERVICE SINGLE Peter Manning approved for service to be charged to HO"; (2) an item with the stated reason "Delamination", with the description "1 reflector has come off. Replaced all reflectors with screw in ones"; (3) an item with the stated reason "Water Leak", with the description "1 curtain is water damaged from where we previously did water test. Water damage to curtain. Replaced curtain"; (4) an item with the stated reason "Poor Fit", with the description "checker plate is not secured properly. CHecker plate not secured properly. Removed section of checker plate that was bulging, cut new section, secured on van with silicone. Re-attached all parts"; (5) an item with the stated reason "Poor Fit", with the description "Rubber along checker plate is still too short in some places. Too short from build. Replaced mould on offside of van, and replaced missing piece on LHS of entry door"; (6) an item with the stated reason "Damaged", with the description "Front O/H bottom rail damaged. Damaged from build. Replaced ohead rail with new and changed LED strip. Tested OK"; (7) an item with the stated reason "Manufacturing Fault", with the description "Rear ezy lifter needs replacing. Original is bent. Replaced easy lifter bar at rear of van and aligned roof, tested OK"; (8) an item with the stated reason "Damaged", with the description "Awning tube damaged. Original tube is damaged. Replaced tube, tested OK"; (9) an item with the stated reason "Water Leak", with the description "Awning track leaking, to seal track on new awning once it arrives. No sealant on track. Removed old track, replaced and sealed"; (10) an item with stated reason "Faulty", with the description "Condensation in grab handle light. Part failure. Replaced grab handle light and tested OK"; (11) an item with stated reason "Discoloured", with the description "Drop down jack feet, bolts are rusting. Bolts are rusting in drop down feet. Replaced feet and bolts"; (12) an item with stated reason "Discoloured", with the description "Roof clamps, rust on rivets. Rust on roof clamps. Replaced all 4 roof clamps"; (13) an item with the stated reason "Faulty", with the description "Locks on picnic table are loose. Broken orings. Used hot glue gun to secure locks. Tested operation OK"; (14) an item with stated reason "Broken", with the description "Aerial winder has come off. Part failure. Reattached handle and tested operation OK"; and (15) an administration fee. 477 Finally, the third warranty claim document was for the work performed by SOS Mobile Fibreglass to repair the small imperfection on the external rear fibreglass panel of Consumer JT's RV. The document stated that the date of repair was 10 March 2016, which broadly accords with Mr Holman having instructed SOS Mobile Fibreglass to proceed with this repair in his email sent on 1 March 2016, referred to at [470] above. The warranty claim document included a single item of repair works with the stated reason, "Cracked", and the description, "Cracking in Gel cost R/h corner. Details on attached quote." The attached quotation described the work as "repair cracked gelcoat on the top right corner" of the bed lid. The claim was for a total of $544.50. 478 During cross-examination, Mr Manning was taken to each of these three warranty claims, and he confirmed that none of the repair works described in any of those claims included the fix for the 2015 model Expanda bed lid leak issue. The descriptions of the works in the warranty claim documents do not appear to record the application of the "fix" to Consumer JT's RV, at least as part of those works. However, Mr Holman stated in his affidavit that the fix was applied to Consumer JT's RV, and this evidence was unchallenged. The ACCC's pleaded case was that it was not known whether the most recent repair to the RV was successful. 479 In addition, in relation to these repair works, there is before the Court evidence of the following exchange between Ms Saffrett and Ms Cotterill of Jayco Sydney on 8 April 2016, which neither of the parties sought to rely upon but I record for completeness. Ms Saffrett wrote - Questions on [Consumer JT's] RV: 1. Did we replace the curtain that has water damage? 2. Why was rear easy lifter replaced? 3. Was tent sections replaced? 480 Ms Cotterill responded - Ezy lifter was replaced once not sure why and then a second time cause the replacement was scratched and damaged, it didn't look good.
April 2016 - return of Consumer JT's RV 481 On or around 8 April 2016, Consumer JT collected his RV from Jayco Sydney. 482 On 8 April 2016, Mr Rodney Loughnan of Jayco Sydney sent an email to Mr Holman in relation to the return of Consumer JT's RV, which relevantly stated - Mr [JT] was happy with all the work that was completed on the van. The only issue was with the grab handle, we replaced due to moisture getting inside. The new one didn't have moisture in it when inspected but did when I dropped it off. 3 x new issues have come up. 1. A small scratch on the overhead cupboard bottom rail above the dinette table. 2. The screws on the left side of the dinette table aren't holding firmly. (Mr [JT] said he mentioned it last time but it wasn't on ro [sic] to be fixed. 3. The laminate on the journey around the a/c has come away and twisted where it is screwed in. 483 Later on 8 April 2016, Mr Holman forwarded Mr Loughan's email to Consumer JT, copied to Mr Loughnan, and relevantly stated - I am pleased you are happy with the works carried out by us. Rod [Loughnan] has noted some additional issues we will have on file for when your van returns for later servicing. Any issues, please don't hesitate to contact us. 484 Consumer JT gave evidence that when his RV was returned on or around 8 April 2016, he was very happy with the fantastic job that had been done to get his RV to the way that it should be, and that he was very happy with the way that Mr Holman had dealt with him. 485 For his part, Mr Holman gave evidence that the three additional issues raised in Mr Loughnan's email were all purely cosmetic, and that they could have been caused by normal wear and tear, or by Jayco Sydney during the process of undertaking repair works on the RV.
April 2016 - further leak and proposed trade-in transaction 486 Sometime between 8 and 10 April 2016, Consumer JT experienced another leak in his RV. Separately, on 10 April 2016, Consumer JT had a telephone conversation with an employee of Jayco Sydney, whose name he could not recall, in which he proposed that he trade in his RV for a new 2016 model Expanda. Consumer JT gave evidence that the employee of Jayco Sydney advised him that he would have to pay $15,000 in addition to trading in his RV, which Consumer JT considered to be ridiculous and which he did not accept. Both of these events are reflected in an email that Consumer JT sent to Mr Holman on 10 April 2016, in which Consumer JT relevantly stated - Don't know if you'll be able to see video, but this is why I hate silicon and I've been against using it to repair leaks. Also Jason, I got a big shock today when your salesman called me to tell me if I want to do a trade with a 2016 van, he requested $15000 plus my van. That's a lot of money to lose after using it only once, where it has spent much time in your yard. You advised me that wetting the top of my bedsteads could create a leak. If I need to wash this in future when cleaning my van, how do I go about it, as this product should be 100% waterproof from top to bottom? Also, whilst works have been carried out on the van, especially at the bed ends, near the light on the fridge end bed, there has been some silicone left on the furniture. Can they be cleaned off also. I appreciate everything you have tried to do for me, however, if this is all you can help me with, I am asking you to put me onto someone higher than yourself as repairing it 4 times now has become very stressful.. Please contact my wife in the morning to advise of pick up time tomorrow. 487 That email attached a 23 second video, which shows droplets of water running down from the corner of a frame inside Consumer JT's RV, in the vicinity of what appears to be silicon that had been applied. 488 Later on 10 April 2016, Mr Holman forwarded a copy of that email and the attached video to Mr Bilbija, and relevantly stated in his covering email - See below email from Mr [JT], I don't think this will be an issue to fix at all, like you said, just seal up the weld/leak. Not sure if you wanted to give him a call or not, by the email, the tone of it suggests he will be keeping the van. I'll let you know how I go tomorrow after I pick up. 489 In his affidavit, Mr Holman stated that he considered this further issue raised by Consumer JT to be minor, and that he left it with Mr Bilbija. However, during cross-examination, Mr Holman suggested that he may have attended Consumer JT's house to fix this leak in his RV, although he did not have a clear recollection of when he had attended Consumer JT's house. 490 Consumer JT stated that sometime shortly after 10 April 2016, although he could not recall when, Jayco Sydney conducted further repairs on his RV. There is no documentary evidence of those repairs. On the basis of Consumer JT's evidence, I find that Jayco Sydney did conduct further repairs on his RV, and I infer that, at least at that time, those repairs were to Consumer JT's satisfaction because he did not raise any further complaint.
Subsequent use of the RV 491 After April 2016, Consumer JT used his RV sparingly. He stated in his affidavit that he used the RV for trips in December 2016 and September 2017, and that it did not rain on those trips, so he did not know whether the RV would still leak. 492 During examination-in-chief and cross-examination, Consumer JT also gave evidence that sometime after he prepared his affidavit in this proceeding in September 2018 and before he gave evidence at the trial on 24 July 2019, he used his RV on a trip to Culburra on the New South Wales south coast. Consumer JT gave evidence that during that trip, he again experienced leaks through the bed lids of the RV when it rained, and that there were also defects with the refrigerator door and the air conditioning unit. However, Consumer JT did not mention these further leaks or make any further complaint to Jayco Sydney or Jayco Corp. During re-examination, Consumer JT explained that he did not make any further complaint because he was over it, by which he meant that he was over all the stress associated with dealing with his concerns with his RV.
Consideration - defects in Consumer JT's RV 493 The defects in Consumer JT's RV which the ACCC alleged in its concise statement were as follows - Defects When defects identified When defects reported to Jayco dealer or service agent, or Jayco Corp
494 In relation to the first group of items alleged by the ACCC, I accept that the appearance of the RV upon delivery was affected by the presence of silicone, and the other sundry matters referred to at [393] above. I do not accept that the overall appearance of the RV was not to the same standard as the demonstration model, because the evidence about the demonstration model that Consumer JT saw was imprecise, and a comparison would involve speculation. The second group of items overlaps with the first to some extent, and introduces the defect that the RV leaked, which was a continuing problem. I find that the RV suffered from leakages, and that at the time of supply of the RV to Consumer JT, the propensity of the RV to leak was present, and that its causes included a design defect affecting the bed lids which at that point in time had not been identified, and for which no solution had been found. I also find that poor stitching of the tent section, where the needle that was used left larger than normal holes, likely contributed to the leaking. The third item also concerns the propensity of the RV to leak to which I have referred, and which had been present at the time of supply. I accept that the fourth and fifth items were defects in the RV, and they were the subject of repairs. Jayco Corp did not put to Consumer JT that either the crack in the fibreglass or the fault with the internal table were the result of some misuse. I infer that the causes of both those faults were present in the RV at the time of supply. I accept the evidence of Consumer JT of the occurrence of the leaks that were the subject of the sixth item.
Was Consumer JT entitled to reject the RV? 495 In relation to all the items that have been proven, they constituted at least a failure to comply with the statutory guarantee of acceptable quality. That is because their presence, including those items that might be characterised as bearing upon appearance and finish, would not be acceptable to a reasonable consumer having regard to, amongst other things, the price of the RV, and the Jayco brochure which Consumer JT was given prior to purchase, which was calculated to convey the impression of high quality manufacturing and the maintenance of value. A reasonable consumer would have regarded the propensity of the RV to leak as most significant, because as I have mentioned earlier, one of the purposes of the RV was to provide shelter, which was necessary for the enjoyment of family holidays that was a subject of Jayco Corp's marketing. This defect, unless rectified, rendered the RV substantially unfit for a purpose for which goods of the same kind were commonly supplied. A more difficult question is whether the failures and course of events were such that Consumer JT was entitled to reject the RV, and to seek a refund or a replacement. 496 I find that Consumer JT requested a refund or a replacement RV on eight occasions, as follows - (1) on 3 September 2015, Consumer JT requested a replacement RV in an email to Jayco Sydney (see [394] above); (2) on 22 December 2015, Consumer JT requested a refund or a replacement RV in a telephone conversation with Mr Manning of Jayco Corp (see [401]-[403] above); (3) on 4 January 2016, Consumer JT requested a refund or a replacement RV in an email to Jayco Sydney (see [406] above); (4) later on 4 January 2016, in a telephone conversation with Mr Holman, Consumer JT repeated his request for a refund or a replacement RV (see [411] above); (5) on 19 January 2016, Consumer JT requested a refund or a replacement RV in an email to Mr Holman of Jayco Sydney (see [415] above); (6) on 21 January 2016, Consumer JT repeated his request, although referring only to his request for a replacement RV (see [425] above); (7) I accept that in a conference call with two employees of Jayco Corp in or about late January 2016, Consumer JT in substance requested a refund, or a new RV (see [430] above); and (8) in early February 2016, Consumer JT requested a refund or replacement RV in a meeting with Mr Holman of Jayco Sydney (see [457] above). 497 The ACCC submitted that by 19 January 2016, having paid about $39,000 for a brand new RV on the basis of Jayco Corp's reputation and the representations in its brochure as to its high quality, Consumer JT had experienced leaking and other defects with the RV before its first use, and further leaking while on holiday, and the leaking issues had not been resolved. The ACCC submitted that the defects in Consumer JT's RV were manufacturing defects caused, inter alia, by blunt needles which caused large holes in the canvas, and by defects which allowed water ingress into the bed lids, and that in these circumstances by 19 January 2016, Consumer JT was entitled to a refund or replacement under the ACL because - (1) the defects to his RV had not been rectified within a reasonable period of time, were still not rectified, and Jayco Corp was still working on a 'fix'; (2) the RV was not fit for purpose; and (3) having regard to the nature of the purchase, the representations that were made about its quality and features at the time of the sale and the price for which it was sold, the RV would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the defects that had affected and continued to affect the RV. 498 The ACCC relied on Jayco Corp's failure to challenge Consumer JT's own evidence that he would not have purchased the RV had he known about the issues affecting it. While that evidence might be probative of what the reasonable consumer might have done, I do not place much weight on the submission that Consumer JT was not challenged on this topic, because the question is not whether Consumer JT would have purchased the RV, but whether the reasonable consumer would have done so. 499 For its part, Jayco Corp submitted that most of the issues with Consumer JT's RV were minor in nature, some may have involved wear and tear, and that they were readily fixed. In relation to the leaking, Jayco Corp submitted that once the cause had been identified, it was fixed easily and cheaply to the point that in April 2016 Consumer JT was satisfied and considered that Mr Holman had done a fantastic job. 500 I am not persuaded that, by themselves, some of the sundry items that Jayco Sydney repaired for Consumer JT were outside the ordinary type of things that typically might require attention after a period of initial use and familiarisation with the RV. The leaking, however, is in another category because it went to a core purpose of the RV. There was some attraction to Jayco Corp's submission that the "fix" that was developed for the leaks in the Jayco Expanda was straight-forward, and that the tent sections were easily replaced in order to address the problem with the holes for the stitching. However that may be, I have arrived at the conclusion that the reasonable consumer would not have acquired the RV had he or she been fully acquainted with the nature and extent of the failure to comply with the guarantee of acceptable quality in all its aspects, including the leaking. The nature and extent of the failure and its consequences for the enjoyment by a reasonable consumer of a family holiday stood in contrast to the representations that Jayco Corp made in it brochures. Accordingly, there was a major failure.
Purchase of the RV 501 On 14 July 2014, Consumer RH agreed to purchase a 2014 Jayco Journey Outback pop top from the dealer, Jayco Newcastle. The agreement to purchase was effected at the Jayco Newcastle dealership. Consumer RH agreed to a purchase price of $46,233, paid a $2,000 deposit, and paid the remainder of the purchase price upon delivery of the RV on 4 December 2014. 502 Consumer RH had prior experience with caravanning, but not with the Jayco brand. She purchased the RV to use on a trip around Australia with her partner, who had early onset Alzheimer's disease. Consumer RH stated in her affidavit that prior to purchasing the RV, she researched the Jayco brand and the pop top design by reading the Jayco website. She stated that she read the Jayco 2014 Journey and Starcraft brochure, which referred positively to Jayco's large share of the Australian RV market, its "high-quality products that offer outstanding value for money and lasting peace of mind", and its nationwide support system. Consumer RH also specifically recalled that the brochure stated in respect of Jayco pop tops that "Setup is a snap. So too is towing". 503 I have referred briefly to the pop top mechanism in addressing the RVs acquired by Consumer TB and Consumer JT earlier. The case of Consumer RH's RV requires some further detail. A pop top is a hybrid between a camper trailer and a caravan. A pop top, when in its towing position, is lower in profile and lighter in weight than a conventional caravan, so it is easier to tow. When a pop top is stationary, the roof can be raised. The roof is raised by pushing up on the roof to engage external hydraulic struts which, at a certain height, trigger a hydraulic lift system that is fitted that makes the roof easier to lift. As the roof extends upwards a vinyl skirt unfolds around the perimeter. That skirt is supported by internal bows, which also assist in ensuring that the skirt folds inside the RV when the roof is lowered. The below picture, which has been extracted from the brochure, shows a 2014 Jayco Journey Outback pop top with its roof in the lowered position. 504 Consumer RH stated in her affidavit that when she attended Jayco Newcastle to inspect the pop top RVs, she specifically told the salesman that she would need to be able to raise the roof herself, so it needed to be easy for a relatively fit 62 year old woman to use. She stated that the salesman told her that the pop top roof was perfect for her, that it was easy to use, and that she would be able to put it up on her own, and that she relied on what the salesman said in this regard. Consumer RH also stated that the salesman demonstrated how to raise the roof on a similar model that was in the lot at Jayco Newcastle, and that she had a go at lifting one end of the roof of that model. 505 Consumer RH stated in her affidavit that the salesman suggested that she add some extras to her RV, including rooftop solar panels and air conditioning, without telling her that those extras would make the roof heavier, and more difficult for her to raise and lower on her own. Those extras added more than 50 kilograms to the weight of the roof. There is no other evidence before the Court about Consumer RH's discussions with Jayco Newcastle before she purchased her RV or, more specifically, whether she would be able to raise the roof of her RV herself, and she was not challenged about these matters in cross-examination. I accept Consumer RH's evidence that she conveyed to Jayco Newcastle her concern as to whether she would be capable of raising the roof herself, and that Jayco Newcastle led her to believe that she would not have any trouble with raising the roof of her RV by herself, including with the additional weight of the extra items installed on top of the roof.
Pre-delivery check and repairs to the RV 506 The practice of Jayco Newcastle was to conduct a pre-delivery check of any new RV received from the Jayco Corp factory in Dandenong before delivering the RV to the purchaser. That pre-delivery check formed part of Jayco Newcastle's standard quality control process which Mr Charleson, the dealer principal of Jayco Newcastle, said was an important part of the handover process. 507 On 4 December 2014, Jayco Newcastle performed the pre-delivery check on Consumer RH's RV and produced a warranty claim document, which set out the repair works conducted on the RV. The warranty claim document stated that the repair works required a total of 0.9 hours of labour, and the cost was $67.50 in labour and nothing in parts, for a total cost with GST of $74.25. The warranty claim document included 3 line items of repair works, namely - (1) an item that stated "Fault" as the reason, with the description "Front has come off drawer under seat. Removed drawer front taken off put glue on the screw stays. Put back together when dry and tested OK"; (2) an item that stated "Damaged" as the reason, with the description "Scratch on internal wall near main door. Used crayon and cleaned with yellow spray to cover scratch"; and (3) an item with that stated "Poor Fit" as the reason, with the description "Both wheel spats need resealing Scraped off old V60 silicone, cleaned then resealed with new V60 and cleaned when dry." 508 The warranty claim document was approved by Mr Manning on 18 December 2014.
Delivery of the RV 509 Later on 4 December 2014, Consumer RH attended Jayco Newcastle to collect her RV. As part of its standard handover process, Jayco Newcastle scheduled the first service of Consumer RH's RV for 18 March 2015. Consumer RH also signed a Jayco Newcastle Limited Warranty & Customer Delivery form, which relevantly stated - I understand my obligations and that I am aware of the proper maintenance and precautionary procedures required for satisfactory operation and that following an internal and external inspection I am happy that at the time of signing this document, the vehicle is free of defects and is of merchantable quality, to the extent of my inspection. 510 Consumer RH stated in her reply affidavit that when she collected her RV, she again made clear to the Jayco Newcastle salesman, whose name she did not recall, that she would need to be able to operate the RV and raise the roof herself, and that no one told her that it was not suitable for her. Consumer RH stated that she was not afforded an opportunity to check over the RV until she had paid the balance of the purchase price. This evidence was not challenged by Jayco Corp.
Proper method for raising the roof of the RV 511 As I shall detail in the following sections of these reasons, the principal issue that arose in relation to Consumer RH's RV was its roof. In broad terms, the ACCC contended, mainly through Consumer RH's evidence, that Consumer RH's RV was manufactured with a defect, such that the body and the roof of the RV were misaligned, which caused repeated problems for Consumer RH when raising and lowering the roof. The ACCC also relied on the evidence of Mr Murphy of Jayco Corp, who in cross-examination accepted, subject to some qualifications, that roof misalignment was likely to be a manufacturing issue. In response, Jayco Corp contended, amongst other things, that the issues that arose with Consumer RH's roof were minor, were easily fixed, and were likely to have been caused by user error. Mr Manning, in particular, gave evidence to that effect. 512 It is convenient to explain two elements of Jayco Corp's response before addressing Consumer RH's concerns with her RV chronologically. First, Jayco Corp relied upon evidence to the effect that there is a proper method for raising and lowering the roof of a pop top RV, and that if that proper method is not followed, issues may arise with misalignment of the roof to the body of the RV. Mr Charleson of Jayco Newcastle gave evidence about the proper method for raising and lowering the roof. In particular, Mr Charleson stated that if the door to the RV is not clipped fully open while both ends of the roof are lifted, then the lifting force creates a vacuum inside the RV, which can damage the "easy lifters" and cause misalignment of the roof when lowered. Mr Charleson also stated that the requirement to clip the door open while lifting the roof is clearly stated in the owner's handbook provided to customers who purchase a pop top RV. A copy of the owner's handbook provided to Consumer RH is not before the Court. Senior counsel for Jayco Corp did not put to Consumer RH in cross-examination that she had failed at any stage to lift the roof in accordance with the guidance in the owner's handbook. Mr Charleson also gave evidence that it is not unusual for the roof of a pop top RV to become misaligned if each side of the roof is not pushed up evenly during lifting. However, as I have mentioned, during cross-examination, Mr Murphy gave evidence that misalignment of a roof on a pop top RV was likely caused by a manufacturing defect, and Mr Charleson agreed that it could have been caused by a manufacturing defect. 513 Second, Jayco Corp relied upon evidence that even if there was a misalignment between the body and the roof of Consumer RH's RV, that would not have affected Consumer RH's ability to raise the roof. Mr Butcher gave evidence to that effect. Mr Butcher also gave evidence that Consumer RH should have been able to lift the roof if she was doing so correctly. However, Mr Charleson gave evidence that he believed that the issues with the roof of Consumer RH's RV were caused, or at least contributed to, by her having difficulty lifting the roof on her own due to her physical size. Mr Butcher gave evidence to effect that this issue may have been exacerbated by Consumer RH having purchased the Outback model pop top RV, which had about 150 millimetres in extra height compared to other models. Mr Wells, a repair agent from Bundaberg Caravan Repairs who attended to Consumer RH's RV while she was away on a trip, gave evidence that he observed Consumer RH struggling to raise and lower the roof.
Consumer RH's alleged initial concerns with the RV 514 Consumer RH stated in her affidavit that after accepting delivery, she took her RV home and inspected it more closely. She stated that she read the owner's handbook and watched a YouTube video on how to raise the pop top roof. She stated that she and her brother, whom she described as a strong man, then attempted to raise the roof of her RV, but struggled to get the front of the roof up. Consumer RH stated that two of the bows at the front of the roof had broken, that there were small holes in the front of the skirt where the strut had pierced it, and that the front of the skirt was hanging off the front of the outside of the roof. Consumer RH also stated that the struts were broken and the roof was crooked, such that it was not possible to get the roof to stay up, and it was also difficult to clip the roof down. Consumer RH also gave evidence about an independent problem, being that water was not coming out of either of the two water tanks on the RV. 515 Consumer RH stated that the following day, on 5 December 2014, she telephoned Jayco Newcastle in order to discuss the issues with her RV. She stated that she first spoke to a man named "Mark", whom she described as the Jayco Newcastle sales manager. I infer that Consumer RH was referring to Mr Mark Farrand of Jayco Newcastle, who did not give evidence. Consumer RH stated that she explained the issue with the roof of her RV, and that Mr Farrand responded that it was typical to struggle with the roof of pop tops. Consumer RH stated that she asked Mr Farrand for a refund, and that he said, "No, let me put you onto the service manager and they will sort you out." Consumer RH stated that she was then passed on to Mr Warwick Butcher, who was the Jayco Newcastle customer relations manager. Consumer RH stated that she asked Mr Butcher for a refund, and he responded "No, we never do that." Consumer RH stated that Mr Butcher then booked her RV in for repairs at Jayco Newcastle's next available appointment, which was nearly eight weeks later. None of this evidence was challenged in cross-examination. 516 However, Mr Butcher stated in his affidavit that he did not recall having a conversation with Consumer RH on 5 December 2014. Mr Butcher also stated that it was highly unlikely that he would have responded to a request for a replacement by saying "No, we never do that", or anything of the sort. Further, Mr Butcher stated that he did not recall booking Consumer RH's RV in for repairs on 5 December 2014, and referred to a Jayco Newcastle repair order for repairs that were conducted on Consumer RH's RV on 20 February 2015, which he stated was dated 11 February 2015. Mr Butcher stated that generally, when a customer called up to book an RV in for repairs, he created a repair order immediately, and that having regard to this practice, he believed that he booked the van in on 11 February 2015. There was not identified in the evidence a document in the nature of a repair order dated 11 February 2015, but as discussed below there were entries in a client communication summary that were dated 11 February 2015. 517 Jayco Corp produced a Jayco Newcastle client communication summary document, which was extracted from Jayco Newcastle's online customer management system that was used by staff to log their interactions with customers. The first entry on the Client Communication Summary document for Consumer RH was entered by Mr Farrand at 5.47 pm on 8 December 2014, and stated, "Spoke to [RH] and all is great with their van. They are excited about going away in the near future." The following three entries on that document are stated to record SMS mobile telephone messages that were sent to Consumer RH in relation to upcoming repair work appointments at Jayco Newcastle. The first message sent at 10.19 am on 11 February 2015 confirmed an appointment that same day, the second message sent about an hour later at 11.22 am on 11 February 2015 confirmed an appointment on 20 February 2015, and the third message sent two days later at 4.39 pm on 13 February 2015 was a reminder of an appointment on 19 February 2015. These messages were not explained in evidence, however they provide some support for Mr Butcher's account that the appointment for the repair works conducted on Consumer RH's RV on 20 February 2015 was booked shortly before that date, and perhaps on 11 February 2015. 518 I do have some reservations about the reliability of Consumer RH's evidence, as I shall later explain. In relation to her account of her conversations with employees of Jayco Newcastle, they do not sit well with the evidence in the form of Jayco Newcastle's business records, and Mr Butcher's evidence of his practice. But as I have noted, she was not specifically challenged in cross-examination about these conversations. Later events demonstrate that there were misalignment and other issues with the roof of her RV. But having regard to my reservations about the reliability of Consumer RH's evidence, even though she was not challenged in cross-examination about her evidence of the conversations of 5 December 2014 with employees of Jayco Newcastle, I am not persuaded to accept her uncorroborated account of them.
February 2015 - Jayco Newcastle repair work 519 On 20 February 2015, Jayco Newcastle undertook repairs on Consumer RH's RV. Jayco Newcastle produced a warranty claim document, which set out the repair work that was performed. The warranty claim document stated that the repair works required a total of 0.98 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and that the cost was $73.50 in labour and nothing in parts, for a total cost with GST of $80.85. The warranty claim document included 2 line items of repair works, namely - (1) an item that stated "Poor Fit" as the reason, with the description "checking roof not coming down straight adjusted roof"; and (2) an administration fee. 520 Consumer RH stated that when she took her RV to Jayco Newcastle for repairs in February 2015, she raised her concerns about the roof and the water tanks. Mr Butcher stated that he met with Consumer RH when she brought her RV into Jayco Newcastle for these repairs, and that he does not recall her mentioning any issue with the water tanks. Mr Butcher also stated that at this service, Jayco Newcastle confirmed that the RV's roof was not coming down straight, and that a repairman adjusted the roof. Finally, Mr Butcher stated that Consumer RH told him that her partner had removed the RV's awning knobs and lost them, so Mr Butcher replaced the awning knobs without charging for his time. This was recorded in a tax invoice for non-warranty works for a total $30.70, being the cost of the awning knobs. Consumer RH collected her RV on 23 February 2015. The warranty claim was approved by Mr Manning on 26 February 2015.
March 2015 - Jayco Newcastle repair work 521 Consumer RH stated in her affidavit that after the February 2015 repairs, she continued to have problems lifting the roof of her RV because it was not aligned correctly, the front of the skirt still had holes from where the strut pierced it, and the water was still not working. Consumer RH stated that she took the caravan in for repairs about this time, but that she could not recall when, and that Jayco Newcastle replaced the water valve on the spot. Consumer RH was not challenged about this relatively minor aspect of her evidence in cross-examination. In response, and as I have outlined above, Mr Butcher stated that even if the RV's roof was not aligned correctly, that would not have affected Consumer RH's ability to lift the roof, but only her ability to close it, and that she should have been able to lift the roof if she was doing it correctly. 522 On 18 March 2015, Consumer RH took her RV to Jayco Newcastle for the routine service that had been scheduled when she took delivery of the RV on 4 December 2014. Jayco Newcastle produced a warranty claim document, which set out the repair works conducted on Consumer RH's RV. The warranty claim document stated that the repair works required a total of 2.47 hours of labour (inclusive of 0.5 hours attributed to an administration fee), and that the cost was $185.25 in labour and $130 in parts, for a total cost with GST of $346.78. The warranty claim document included 5 line items of repair works, namely: (1) an item that stated "Damaged" as the reason, with the description " REPAIR VINYL POP TOP O/S REAR STRUT - SEE ASH/WB PLS CONFIRM POSITION checked strut mounts all identical, none long[er] than others, roof mis alignment caused strut to damage tent"; (2) an item that stated "Damaged" as the reason, with the description "Extra water tank factory fitted not reading on control panel checked , wiring found no problems, found kinked in filter line that stoped [sic] tank filling, fitted 90'barbed elbow to remove kink"; (3) an item that stated "Poor Fit" as the reason, with the description "Glue drawer faces back on used araldite to glue screw anchors back into drawer faces of the two drawers that come apart, them [sic] reassemble both drawers"; (4) an item that stated "Poor Fit" as the reason, with the description "Check LEDs in awning some not working remove old LEDs - clean glue from track- refit new light strip & check"; and (5) an administration fee. 523 The warranty claim was approved by Mr Manning on 30 March 2015. 524 The Jayco Newcastle record of these Jayco warranty repair works included two additional items, namely - (1) an item titled "CHECK ROOF ALIGNMENT AND HOLD DOWN CLIPS", with the comment "appears good now"; and (2) an item titled "Bowe found on floor", with the comment "filled out pink sheet". 525 Jayco Newcastle also produced a tax invoice for non-Jayco warranty works, being the replacement of a "water filler door catch" and another replacement of the awning knobs, for a total of $328.45. 526 Consumer RH collected her RV on 23 March 2015. She stated in her affidavit that when she collected her RV, she was told by someone in the service department of Jayco Newcastle, whose name she could not recall, that there was no need to check the RV because the repairs had not been done because paperwork had been sent to Melbourne to authorise a new roof and skirt. Consumer RH stated that she was told to expect a telephone call notifying her to bring the RV back to Jayco Newcastle when those parts had arrived. She stated that about four weeks later, she telephoned Mr Butcher to ask about her replacement roof and skirt, and he responded with words to the effect, "You must have been mistaken, no paperwork has been sent. They would never give you a new roof and skirt." In response to that evidence, Mr Butcher stated that while he was not present when Consumer RH collected her RV on 23 March 2015, and therefore could not comment on what was said to Consumer RH at that time, he did know that the repair works were completed as reflected in Jayco Newcastle's records. Further, Mr Butcher stated that there was no indication that a new roof and skirt were ordered for Consumer RH's RV, or that any paperwork was sent to Melbourne. Finally, Mr Butcher stated that when he next spoke to Consumer RH by telephone approximately four weeks later, she again said that she was having issues with the roof, but Mr Butcher did not recall her mentioning that she was expecting a new roof and skirt. Mr Butcher stated that even if he did speak to Consumer RH about a new roof and skirt, which he did not recall, he did not believe that he would have said, "They would never give you a new roof and skirt", as that simply was not the case. 527 Given my reservations about the reliability of Consumer RH's evidence, and the absence of support in the Jayco Newcastle contemporaneous business records, and the evidence of Mr Butcher, I am not persuaded to accept as a reliable recollection Consumer RH's account that she was advised by a representative of Jayco Newcastle that these repair works had not been completed, and that instead she was to receive a new roof and skirt for her RV. However, I do note that Consumer RH's account is recorded in her email to Mr Manning sent on 4 May 2015, referred to at [532] below.
April 2015 - Jayco Newcastle deferred repair work 528 On Monday 20 April 2015, Consumer RH again took her RV to Jayco Newcastle for repair works to be conducted. Consumer RH stated in her affidavit that she took her RV in for repairs again because the bows were not re-installed properly, there were still holes in the skirt, and there were also lumps of white putty or silica in each corner of the roof to make it look like the roof was sitting straight. Consumer RH made no express mention in her affidavit of any actual problems with the roof alignment in April 2015. Mr Butcher and Mr Charleson gave evidence of their recollection that Consumer RH's concern with her RV on this occasion was limited to an issue with the bow pockets of the RV, into which the bows are inserted to give shape to the skirt when the roof is raised. Mr Charleson stated that any fault with the bow pockets would not make the RV unusable, nor would it require a major repair, but rather it would only require Consumer RH to pay closer attention when lowering the roof to ensure that the skirt was properly pushed inside the RV. 529 The following day, on 21 April 2015, there was a severe storm in Newcastle that resulted in Jayco Newcastle losing power and remaining closed until Friday, 24 April 2015. Nonetheless, on that day, Consumer RH elected to collect her RV before any repair works could be completed. There are no Jayco Newcastle records of Consumer RH's RV going to the dealership on this occasion.
May 2015 - Queensland trip and correspondence with Jayco Corp and Jayco Newcastle 530 In May 2015, Consumer RH took a trip to Queensland in her RV. I would find it surprising if Consumer RH had embarked on this trip if she was experiencing problems with the alignment of the roof of her RV which she elected not to have repaired. This tends to support the suggestion that the concerns in April were confined to the bow pockets. Nonetheless, during that trip, she encountered difficulties with the roof of her RV. These difficulties led to two sets of repairs to the RV - first, repairs by Mak's Mechanical Onsite Caravan on 4 May 2015 at Crows Nest, and second, repairs by Bundaberg Caravan Repairs on 7 May 2015 at Agnes Water. These difficulties also led Consumer RH to engage in correspondence with Jayco Corp and Jayco Newcastle about her concerns with her RV, which included her demanding a refund or replacement. These demands were not met. The witnesses who gave evidence about these events had limited recollection about the sequence of the events, and provided some conflicting accounts. In particular, Consumer RH's evidence was confused and, in some respects, contradicted by the evidence given by other witnesses and contemporaneous records. In the following sections, I have recorded the content of correspondence and other contemporaneous records.
Roof issue and 4 May 2015 Mak's Mechanical and Onsite Caravan repair works 531 On 4 May 2015, Consumer RH encountered difficulties with the roof of her RV while at a caravan park in Crows Nest in Queensland. Consumer RH stated that when she tried to put the roof down, she could not secure it properly because it was not aligned with the body of the caravan, and that one of the struts had broken. Consumer RH telephoned Mr Manning, who arranged for a repairman from Mak's Mechanical and Onsite Caravan Repairs to attend to fix the problem. Consumer RH stated that "a man and his son" attended, and that they fixed the broken strut, so that she could get the roof down. 532 Later on 4 May 2015, Consumer RH sent an email to Mr Manning in relation to her concerns with her RV and her dealings with Jayco Newcastle, in which she relevantly stated - First I would like to thank you for sorting out my breakdown issue this morning. The repairer has replaced the screws that had broken off in the bracket in which the left front strut goes. I would like to make you aware officially if [sic] the serious other issues that Jayco Newcastle failed to fix in March this year. The van is only 4 months old today. The van went in for service mid March and to fix several major problems concerning the roof and skirt, namely 1. Re align crooked roof. 2 - repair holes on right front in skirt caused by the right front strut. 3 - reinstall 3 bows that popped out of skirt at front Several days later I picked it up and was told no need to check anything because he had done the paperwork and sent to Melbourne to authorise a new roof and skirt, I should expect a phone call to bring van down when these had arrived. I waited in good faith for 4 weeks - no contact so I rang and was asked to take van down again so Warwick [Butcher] could look again. He said I must have been mistaken and that they would never give me new roof and skirt. I have attached photos of the lumps of putty or silica that they put in each corner of roof - I am sure you will agree with me that this is an appalling job!!! And - the bows were not reinstalled and the holes in skirt I can see daylight through them. It appears that they have painted over them with a water soluble substance that has now washed off in the rain. I have no confidence in Jayco Newcastle to make goof [sic] these faults. They have had amoeba tinc [sic] to fix them. I also gave [sic] no confidence in the pop top system. I spent almost 47k on this van in December and I am out of patience. My partner has Alzheimer's disease and I need to do all the caravan stuff on my own. I request a full refund or a new replacement van of equivalent layout it can be a tourer not outback. I am lodging a complaint with fair trading nsw tomorrow. 533 On 5 May 2015, Mr Manning responded to Consumer RH, relevantly as follows - I am in warranty. So from Jayco I can approve warranty repairs. I cannot help you with another van or money back. You have to go back to the place you have your contract of sale with. That being Jayco Newcastle. I cannot guarantee this will be the outcome for you as the terms and conditions of warranty are to repair van. I'll let you contact Jayco Newcastle about your request. 534 The email correspondence between Consumer RH and Mr Manning was forwarded to Jayco Newcastle. 535 That same day, Mr Charleson sent an email to Mr Farrand, copied to Mr Matthew O'Malley and Ms Paula Dudley of Jayco Newcastle, relevantly as follows - Mark [Farrand] Can you please contact this lady Paula [Dudley], can you please give a full outline of what has happened thanks 536 Ms Dudley forwarded Mr Charleson's email to Mr Butcher. Then, approximately ten minutes later, Ms Dudley sent an email to Mr Manning, in which she stated "Damian [Charleson] Asked me to ask you, what repairs on this van have been completed by other service agents, and if so what did they do?" Mr Manning responded, "Only 3 claims as below", and set out descriptions of the items of warranty work that had been submitted by Jayco Newcastle to Jayco Corp for works on 4 December 2014 (see [507] above), 20 February 2015 (see [519] above) and 18 March 2015 (see [522] above). 537 In response to Mr Charleson's email and still on 5 May 2015, Mr Butcher sent an email to Mr Charleson, copied to Mr Farrand and Mr Manning, providing an outline of his dealings with Consumer RH, in which he relevantly stated - Firstly, I have personally helped [Consumer RH] out with getting her van in and having jobs done, explaining how some things work and replacing her awning knobs twice when she lost them. She paid for the parts both times, Warwick fitted first time free, was charged $6.95 labour second time. She does explain constantly that she has to watch her partner who has Alzheimers as she does do things incorrectly with the van. Yesterday I did not know of this issue and as a courtesy rang [Consumer RH]just to check if all was OK. I left her a message as she did not answer. [Consumer RH's]van was booked in 20/2/15 for roof not coming down straight and fit awning knobs. Luke adjusted the roof, Warwick fitted the awning knobs and van was picked up 23/2 1-30pm. Van booked in 18/3/15 for first service and a few warranty issues. Warwick noticed again that awning knobs were missing and [Consumer RH]said her partner must have loosened them after she had tightened them. • The tent was vinyl repaired as strut mount had put a few small holes in the tent. • Warwick checked the roof alignment with [Consumer RH]and noted on RO that it now appeared good. • Found kinked pipe stopping water tank from filling - Fixed • Water filler door catch missing, replaced under warranty. • Glued face back on 2 drawers. • Filled out Pink Sheet re Bowes found on floor as tent bowes coming away from vinyl tent. • Fitted new LED strip • Replaced Black awning knobs Van was picked on up on 23rd March. Warwick subsequently arranged to pick up van but [Consumer RH] subsequently rang and said she was free and would bring the van in. I think this was on Monday 20th April. Storm damage to Jayco site and closed 21st to 23rd April. Customer rang and wanted to pick up van 24th even if work not completed. Not sure if Bowe pockets have been repaired. Her emergency repair of a strut bracket screws coming out which Peter arranged to be fixed should not be a major issue. Have rung and left a message again for [Consumer RH]12.34pm today. I will keep trying to speak to her as I have a good relationship with her, go over the issues and explain what the process will be. 538 Later that day, Mr Charleson responded to Mr Butcher, copied to Mr Farrand and Mr Manning, relevantly stating - Thanks Warwick, I suspect the next we will hear from her is from Fair Trading. It would appear she has received some bad advice as to her rights. Great proactive work Warwick
Further roof issue and 7 May 2015 Bundaberg Caravan Repairs repair works 539 On 5 May 2015, Consumer RH encountered further difficulties with the roof of her RV while at a caravan park at Agnes Water, between Bundaberg and Rockhampton on the Queensland coast. In her affidavit, Consumer RH stated that she was unable to put the roof up as a few of the struts on both sides of the RV had come out. She also stated that there were holes in the skirt. 540 As a result, later on 5 May 2015, Consumer RH sent a further email to Mr Manning, in which she relevantly stated - I have a big problem again - putting the roof down today - it came down out of alignment - so put it up and down again and the left BACK strut has broken off from its plate, moreover only 2 diagonally opposed roof clips can be closed now. I rang roadside assistance who put me onto a business in Bundaberg however the service manager there refused to send someone to help me. So roof down now - this is an appalling situation I'm in only 3 days into our 4 week holiday. I would like a refund please OR a replacement van. 541 Still on 5 May 2015, Consumer RH also sent an email to the Jayco Corp "info" account, in which she relevantly stated - I'm looking for the terms and conditions for purchase of my van. Could you email them to me please? We broke down again today - roof again and another strut broken. Not much of a holiday so far!!! Can't get it fixed so far. 542 That email was forwarded to Mr Charleson of Jayco Newcastle. 543 Mr Manning replied to Consumer RH the following day, relevantly as follows - I am sorry for this. I can assist with allowing warranty repairs and approvals. I cannot offer you your requests. Your contract of sale is with your selling dealer. You would need to see them about these requests. I don't think they will go in that direction though as terms and conditions of warranty is for repairs. 544 Meanwhile, on the evening of 5 May 2015 and the morning of 6 May 2015, after Consumer RH had raised the further difficulties that she was having with the roof of her RV, Consumer RH and Mr Manning exchanged a series of short emails, which relevantly included the following exchanges - Consumer RH - Ok Peter - so could you authorise a replacement roof and skirt/curtain? That's what I was told I was getting. Perhaps re gassing all struts so they're all same gas might help roof alignment? Mr Manning - I can't until we get an assessment through stating it needs these things. Then I need to ask management. Consumer RH - Ok - we have 2 struts off - jayco roadside trying to find someone to help Mr Manning - A local mechanic might be able to help Consumer RH - Thank you peter Warwick [Butcher] is helping x Mr Manning - No worries 545 Both Mr Manning and Mr Butcher tried to make arrangements for a repair to be conducted on Consumer RH's RV on-site at Agnes Water. Mr Butcher tried unsuccessfully to contact local repairers before arranging for the caravan park manager to assist Consumer RH to put the roof down, and then for Jayco Mackay to fix the roof once Consumer RH got to Mackay. Meanwhile, and unbeknownst to Mr Butcher, Mr Manning had succeeded in arranging for a local repairman, Mr Barry Wells from Bundaberg Caravan Repairs, to attend the caravan park. 546 On 7 May 2015, Mr Wells attended the caravan park at Agnes Water to fix the roof of Consumer RH's RV. There was conflicting evidence about what occurred during Mr Wells's visit. During cross-examination, Consumer RH's evidence was confused and inconsistent. Jayco Corp submitted that Consumer RH's evidence was not reliable, and that to the extent of any inconsistency, the Court should prefer the largely consistent and corroborated evidence of Mr Wells and Mr Manning. As will become apparent, I find that Consumer RH's evidence in relation to Mr Wells's visit was unreliable, and I prefer the evidence of Mr Wells and Mr Manning. 547 Consumer RH gave the following evidence in her affidavit about Mr Wells attending the caravan park at Agnes Water to fix the roof of her RV. Consumer RH stated that Mr Wells told her that he could not fix the issue because her RV needed a new roof. Consumer RH also stated that Mr Wells temporarily repaired what he could so that she could get the roof down, but that the roof was still not sitting straight. She stated that Mr Wells took photographs of her RV and sent them to Mr Manning, to whom Mr Wells then spoke by telephone. She stated that she heard Mr Wells tell Mr Manning that the RV needed a new roof, and stated that Mr Wells told her that Mr Manning had said that he would authorise a new roof and skirt for her RV. Consumer RH also stated that after that, she telephoned Mr Manning and requested a replacement RV, to which he responded something to the effect of "no, we don't do that", and told her to take her RV to Jayco Newcastle so that they could replace the roof. Consumer RH also stated that next she spoke by telephone with Mr Butcher, who told her that she would not get a replacement RV or a new roof. Finally, Consumer RH stated that a man at the caravan park had to tie down the roof of her RV, because it would not clip down properly, so that she could drive it home. 548 During cross-examination, Consumer RH referred to Mr Wells on a few occasions as "Mr Barry". She stated that she thought that Mr Wells attended with his son, whom she described as an apprentice, and stated that they both examined the RV. As I have mentioned above at [531], Consumer RH stated in her affidavit that the repairman who had earlier attended the site at Crows Nest attended with his son. Mr Wells stated in evidence-in-chief that he attended the site at Agnes Water with his wife, who spoke to Consumer RH and her partner. He repeated this in cross-examination, and was not challenged about this evidence. 549 Consumer RH gave evidence that the RV was on "flat" or "flat-ish" ground at the caravan park, and referred to a spirit level that she claimed was in the RV, but that was not referred to in her affidavit. She gave unclear evidence about whether the roof was up or down when Mr Wells arrived, and whether the issue was that she could not get it up or down. She gave evidence that Mr Wells had difficulty getting the roof up and down. Consumer RH stated that she did not recall Mr Wells telling her that he could not assess the problem with the roof because the RV was not on flat ground. She also gave evidence that in addition to Mr Wells taking photographs, she also took photographs of her RV during Mr Wells's visit, but that those photographs would not be in existence now because "the camera is thrown out, it's just natural wear and tear", and she did not download the photographs. Finally, Consumer RH gave evidence that when Mr Wells telephoned Mr Manning, he used the speakerphone function on his mobile telephone, and she joined a three-way telephone conversation during which Mr Manning committed to replacing her RV's roof and skirt. This account was materially different to the account in her affidavit, in which she said that Mr Wells conveyed Mr Manning's agreement to replace the roof and the skirt. Consumer RH referred to Mr Manning's alleged commitment to replace the roof and skirt of her RV in later correspondence, as detailed below. 550 Mr Wells stated in his affidavit that when he arrived at the caravan park, Consumer RH told him that she could not get the roof of her RV down because it was misaligned. He stated that the RV was sitting on quite uneven ground and its roof was up. Mr Wells stated that he changed the struts, which was a relatively minor job, and that he was able to put the roof up and down, but that Consumer RH appeared to struggle with that task. After Mr Wells changed the struts, three of the four corner brackets for the roof struts were lined up, but the offside corner bracket was slightly out of alignment. Mr Wells left the roof of the RV up because Consumer RH and her partner were staying at the caravan park. Mr Wells stated that he considered that the problem with misalignment of the body and roof of the RV may have been caused by the RV being on uneven ground, but that it could not be definitively assessed until the RV was on flat ground. When Mr Wells was cross-examined, he agreed that he had no independent recollection of the RV being on uneven ground, but believed that it was because the caravan park at which it was sited had uneven ground. Mr Wells made suggestions for further investigation to be undertaken on flat ground in the warranty claim document that he produced, as detailed at [553] below. Mr Wells stated that he spoke to Mr Manning while at the caravan park. In his affidavit and during cross-examination, Mr Wells was unequivocal in his recollection that he did not advise Mr Manning that the roof of the RV needed to be replaced, and that Mr Manning did not tell him that the RV's roof would be replaced. However, in his affidavit he accepted that it was possible that he told Consumer RH that one possibility might be that her RV needed a new roof. He stated that it was his usual practice to say that such an issue really needed to be assessed on flat ground. 551 In cross-examination, Mr Wells came across as experienced and knowledgeable in his area. In comparison to Consumer RH's confused presentation, he gave evidence in a straight-forward fashion. Mr Wells disputed that he had a three-way telephone conversation on speakerphone with Consumer RH and Mr Manning. Mr Wells stated that he walked away from Consumer RH when he telephoned Mr Manning, and that his practice was never to speak to Jayco while a customer was within earshot. This account is supported by an email sent by Mr Wells about two months later, as detailed at [555] below. In relation to Consumer RH's evidence that she had a spirit level on her RV, Mr Wells stated that he did not see it, and that if it was at the front of the RV, as was put, it would be no good, as the spirit level needed to be in the body of the RV. 552 Mr Manning stated that while he did not recall the specifics of any conversation with Mr Wells or Consumer RH, he absolutely denied that he approved a new roof for Consumer RH's RV. Mr Manning's strong denial of Consumer RH's account that he committed to replacing the roof and skirt of her RV is also reflected in an email that he sent on 11 May 2015, set out at [564] below. Mr Manning stated that he believed at the time that Consumer RH's roof was easily repairable and that the faults that were occurring were likely due to user error. Further, Mr Manning gave evidence that the cost of a replacement roof and skirt would have exceeded his authority limit, so he could not have approved it without Mr Morgan or Mr Austin making an assessment as to whether it was required. 553 Mr Wells produced a handwritten warranty claim document dated 7 May 2015, which set out the repair works performed on Consumer RH's RV. The claim was for 5 hours of labour at a total cost with GST of $330. The claim included the following description of the works - Location: 1770 Agnes Waters Try to realign roof and refit gas struts Requires further investigation 1) Tent Section Requires Replacement 2) Body or Roof not produced square 3) Alignment not satisfactory 554 During cross-examination, Mr Wells explained that his descriptions of work in this document were to be understood as recording his recommendation that further investigation was required as to whether the tent (or skirt) required replacement, whether the body or roof was not produced square, or whether the alignment was not satisfactory. Mr Wells gave evidence that he did not form any preliminary view on those issues, but rather that he recommended that they be further investigated on a flat concrete floor in a workshop. I have considered the terms of the warranty claim document in the context of the surrounding circumstances, and I accept Mr Wells's evidence that he recommended further investigation. 555 Mr Wells sent an email to Mr Butcher on 7 July 2015, in response to a request for further details, providing his account of his attendance to repair Consumer RH's caravan, relevantly stating as follows - Service call to 1770 caravan park re. Jayco pop top problem and found with the gas struts binding and detaching moved gas strut bracket forward on both sides, found roof margines [sic] out, called peter manning to report problem from the opposite side of van than where customer was standing and was told to refer customer to a service agent where they bought the van or other agent if not confident with Newcastle but customer was advised that further investigation must be performed before any [decision] could be made on further repairs under warranty note; further investigation must be performed before any [decision] can be made; customer was informed and understood this before I left the site, peter manning did not agree to renew any parts until investigation was complete and submitted to JAYCO. HOPE THIS MAKES IT MORE CLEAR 556 On the basis of all of the evidence about Mr Wells's visit to the Agnes Water caravan park, set out above and below, I find that Mr Wells did not advise Consumer RH or Jayco Corp that Consumer RH's RV required a replacement roof and skirt, I also find that Mr Manning did not commit to replacing the roof and skirt on the RV, and finally I find that neither Mr Manning nor Mr Wells stated anything to this effect to Consumer RH.
May 2015 - further correspondence with Jayco Newcastle and Jayco Corp 557 On 8 May 2015, Mr Butcher sent an email to Jayco Mackay in relation to Consumer RH's RV, in which he relevantly stated - Just spoke to [Consumer RH]. Apparently she left a message for me that I did not get. Barry from Bundaberg caravan repairs came out to her and refixed the struts and moved the mounts. He also has spoken to Peter Manning and apparently a new roof and skirt has been approved so I will follow that up. Whilst she is still having difficulty lifting the roof all appears OK at this stage. She will contact me if she needs any further assistance. Thanks for offering to assist but at this stage may be all OK. 558 Later on 8 May 2015, Mr Butcher sent another email to Mr Charleson, copied to Mr Farrand and Mr Manning, in which he relevantly stated - All is Ok and we are speaking to her [Consumer RH] when she returns about changing the van. Have spent a lot of time trying to get a local person to assist [Consumer RH] without success so arranged for the park manager to assist her to put roof down. Arranged with Chris at Mackay to fix roof for her when she gets there next week. Rang [Consumer RH] but she had left a message with Danielle that I did not get that Barry from Bundaberg Caravan Repairs came out and fixed the struts and spoke to Peter Manning and apparently a new roof and tent has been authorised. Warwick will speak to Peter on Monday. 559 Still on 8 May 2015, Consumer RH sent an email to Mr Manning, in which she relevantly stated - Had a call from Barry today who relayed that you want central coast caravans Tuggerah to organise the roof etc. Well I rang and spoke to Cameron, gave him the [chassis] number and he said he'd get back to me that was hours ago. Did he ring and speak to you? Meanwhile I had a call from Warwick at Newcastle branch and he's going to ring you Monday about it! I'm thinking that Cameron may not want the job? Thanks for your help and Barry was terrific. We are cutting short our trip and returning home by 30 May Might try again for cairns when all is fixed 560 On 10 May 2015, Consumer RH sent a further email to Mr Manning, in which she relevantly stated - I have attached pics of the water dripping down through the closed hatch - no rain it was probably from roof and aircon. My patience has expired - we've had to cut our holiday very much short all because of this faulty van roof and curtain that we have used only twice. Barry rang you last Thursday with his view that the roof was faulty in the building process. Could you please talk to someone down where you are who can authorise a refund or replacement of equal value. Is it Chris someone? Already 5 months of the warranty has expired and who knows how long we'll be without a van for everything to be fixed. My life is hard enough looking after Eddie who has Alzheimer's disease without this happening. The van has been in to Newcastle already for roof and curtain fix last March and you know that outcome. So can we work together to fix this please? Could you please ring tomorrow or I'll ring you. I feel like bringing the van to Victoria and leaving it there. 47k down the drain. 561 The following morning, on 11 May 2015, Mr Manning responded to Consumer RH, relevantly as follows - I am sorry for the troubles. Your request of a refund or replacement van needs to go through your selling dealer as they have you [sic] contract of sale. I can only authorise repairs from Jayco warranty. 562 Later on 11 May 2015, Consumer RH also attempted to send an email to Mr Charleson of Jayco Newcastle, with the subject line "Major problems journey outback s57143 sale date 4/12/2014". Mr Charleson stated that he did not receive the email at that time, because his email address was not spelled correctly by Consumer RH. However, the email chain in evidence records that it was forwarded to Mr Farrand and Mr Butcher of Jayco Newcastle. In the email, Consumer RH relevantly stated - I am writing to you about the difficulties I have had and continue to have with the roof, struts and water leaks in the above van purchased new on the date above cost 47k. We picked up the van on 4/12/2014. Peter showed us how things worked in general. We took the van home and opened it up to show my family. When putting roof down 2 bows came out and the skirt was hanging out the front of the roof AND there were small holes on the right front skirt where the strut had pierced it. The earliest appointment I was given by suit service crew to look at it was 18/3/2015 some 3 ½ months later. Son [sic] I took van down 18/3/15 for the roof and struts and holes to be repaired and left it their [sic] for more than a week. On picking it up I asked to see the repairs and was told don't worry no need to do so because the "paperwork had been completed and sent to Melbourne to order a new roof and skirt. We will ring you when it all arrives". I waited in good faith for 4 weeks then rang Warwick about it. He said "we'd never give you a new roof and skirt. Bring it downagainand [sic] I'll look at it. This was now April 2015 Warwick took it and said he'd get itallrepaired [sic]. I picked it up late April because we had a trip planned - the promised vinyl repair not done and roof has lumps of something under each corner supposedly to align it!! We left for trip up north on 2/5/2015. Next morning roof wouldn't close, clips not closing, one and a strut broke. Called Jayco road service the next day from and fellow came out and fixed strut. Next morning roof not seal and 2 other struts out and could only close 2 pop top clips. Called Jayco coronas [sic] service again from North Bundaberg area the next day (4/5/15) no one come [sic] out until 3 days later. Struts fixed again struts re gassed by Barry wells who rang Peter manning and sent him photos and recommended a new roof to replace the other which was in his view a building fault. I also have sent Peter photos of everything. Barry said peter authorised new roof and skirt.and- Last night we had water running through aircon and hatch side although no rain. I suspect we now have water inside roof. I discoveredthismorning [sic] that Peter manning has not authorised a new roof etc. Ihave [sic] spoken to Mark f this morning about swapping this van for a new van of equal value. I have already waited 5.5 mths of the warranty and am being shuffled from person to person and getting different stories. I ask that you come back to me within 24 hours with a solution that is mutually acceptable. I am a 62 yr woman caring for my partner who has Alzheimer's - travelling on our own with a finite time left. … I have photos as does Warwick mark and Peter manning 563 Also on 11 May 2015, Mr Butcher sent an email to Mr Manning, copied to Mr Farrand, in which he relevantly stated - I just spoke to our sales manager Mark Farrand to let him know what we had discussed and he said [Consumer RH] had rung him this morning. [Consumer RH] said she had spoken to you this morning and you authorised a roof and tent. She also said she wants a full height starcraft as an even swap or her money back. She said that you said we would arrange that at Newcastle. Can you please ring me before I call her. 564 Later on 11 May 2015, Mr Manning responded to Mr Butcher, relevantly stating - I have not spoken to her today. I sent an email this morning but at no stage did I say she was getting a new roof and tent. 565 Later still on 11 May 2015, Mr Manning exchanged a series of emails with Central Coast Caravans in relation to potential repairs to be conducted on Consumer RH's RV, which relevantly included the following exchanges - Central Coast Caravans - I have just been speaking to [Consumer RH], they have a new Discovery, they are on holidays at the moment in Qld and have had quite a bit of trouble with the Roof Struts (1 fell off and then the other ones fell off at a later date) She has indicated that someone has rung yourself and reported the problems and that the van requires a new Roof and Vinyl skirt (Jayco Newcastle have repaired the skirt, customer is not happy with the result) would you be able to advise if this work has been authorized? Mr Manning - Its [sic] needs to be inspected first. I have not said we would put a new roof on. I said if we have to we will. I don't think it needs one myself. Please report to us first with quote and pictures if it needs a new roof. She has been in contact with Jayco Newcastle as well. Maybe someone there said this but Jayco makes the decisions. Not Newcastle. Central Coast Caravans - I will give her a call and ask them to bring the van here for inspection. 566 Finally on 11 May 2015, Mr Butcher made an entry into the Jayco Newcastle online customer management system, which is recorded in the Client Communication Summary document as follows - Warwick [Butcher] spoke to Peter [Manning] and a roof and tent have not been authorised. Peter [Manning] sent an email to [Consumer RH] Spoke to Barry [Wells] at Bundaberg Caravan repairs. He moved the front strut mounts on the roof to stop them coming off. He also advised the roof or van is out of square and he adjusted as best he could. Warwick [Butcher] rang [Consumer RH] as she had spoken to Mark [Farrand] this morning wanting a refund or new starcraft 16ft full height van clean swap. [Consumer RH] said Fair Trading will order a refund. I assured her that is not the case. Warwick [Butcher] advised [Consumer RH] a refund will not happen. She will need to discuss with Mark [Farrand] a trade in price compared to a new one. [Consumer RH] has got a price on the new van from Coffs of $48000 and she paid $46500 for hers and we should swap them so she does not have to wait. [Consumer RH] cannot lift the roof herself and the outback is too high. (her problem not ours) but she expects some goodwill to make a clean swap. As [Consumer RH] also told Barry [Wells] that she does not want to deal with us Peter [Manning] suggested she goes to Central Coast Caravans. 567 On 12 May 2015, Mr Butcher sent an email to Mr Charleson, copied to Mr Farrand, in which he relevantly stated - Had a long discussion with [Consumer RH] again late yesterday. She is all over the place with statements she has been told which have been denied. Eg says Peter M approved roof to Bundaberg repairer but repairer and Pete say no etc. Told [Consumer RH] the van needs to come here and I will have an answer for her in 24 hours. (I believe from discussion with Repairer that a roof and tent will be authorized. As [Consumer RH] told the repairer she does not have confidence in us Peter did refer her to Central Coast Caravans. I believe the van is usable now but [Consumer RH] has difficulty with the roof. [Consumer RH] told me she has lodged a complaint with Fair Trading and it will cost us $3000. I explained to her what happens via Fair Trading. [Consumer RH] explains that as her partner has sever[e] Dementure and she is trying to give her a quality of life while she can enjoy it and needs a usable van. [Consumer RH]'s other request is to change the van (17.55-9JY) for a 16.51-3 stock van at no cost to her. Expects our goodwill and her inconvenience to cover this. I have explained that we will certainly do the very best we can for her but that I expect there will be a changeover cost to her as her van is now a used van and would be traded in. [Consumer RH] has asked for Mark [Farrand] to contact her with a proposition. If [Consumer RH] goes to Central Coast Caravans for the roof repair she is going to be waiting for quite some time for a roof. We would not trade the van pending their repair. She has already rung Coffs and was told the 16.51-3 is $48000 and she paid $46233 for the Journey. Fair Trading should not be an issue. If [Consumer RH] goes to another dealer I assume the changeover would be greater than our offer. Whilst [Consumer RH] has been very difficult I think we need to be as proactive as possible in helping her. Can Mark contact [Consumer RH] today with a deal and then I can possibly arrange to get her van in for the roof issue. She is still in Qld at the moment but can come back anytime. 568 Mr Charleson responded to Mr Butcher, copied to Mr Farrand and Mr Manning, relevantly as follows - As discussed Warwick, please draft an email and show Mark and myself before you send. We need to get our position down which is • The van is repairable and will be repaired • The van is useable and is not stopping her doing what she wants in using it • She has stated to you that she is struggling in putting up the roof and this is one of the reasons she wants to change vans • She has stated that she has lost confidence in us from a repair point of view but she has not given us fair and reasonable opportunity to fix the problems • The van was here to be fixed a few weeks ago. [Consumer RH] called after the storms and said she needed it back urgently for use because of the storms. She said it was ok if the work had not been done to it • We have not seen the van since and now she is becoming hostile. (don't use these words but something similar) • We will trade the van in and give her a changeover price. We will not be buying the van back at full price or swapping it with another model 569 As requested, Mr Butcher prepared a draft email to Consumer RH, which he sent to Mr Charleson and Mr Farrand for their review and comments. Mr Charleson responded, "Excellent, please copy in peter manning. Do not copy me in, get Mark [Farrand] involved if you need to". Then, still on 12 May 2015, Mr Butcher sent that email to Consumer RH, copied to Mr Manning and Mr Farrand as requested. The email contained a formatting error, so Mr Butcher re-sent it without that error at Consumer RH's request. The email relevantly stated - Further to our phone conversation late yesterday I need to confirm the following: • Your van is repairable and will be repaired. I need your van here ASAP to report to Peter Manning and will have an answer within 24 hours if the roof and tent is to be replaced. • Following the repair by Bundaberg Caravan Repairs the van is useable. If and only if the roof and tent is to be replaced it could take 10 weeks for them to arrive here. • You have confirmed that you are struggling to raise and lower the roof and that is the main reason for wanting to change vans. • The van was here a few weeks ago and I am advised you called and wanted the van back urgently. You said it was OK if all the work had not been completed. • We have not seen the van since you picked it up and you have mentioned to the Bundaberg repairer that you have lost confidence in us from a repair point of view, but we feel that we have not been given a fair and reasonable time to fix the problems that have arisen since. • You first raised the issue of roof alignment when the van came in on 20/2/2015 and it was adjusted. When you brought the van in for some other warranty items on 18/3/15, I particularly noted on our repair Order with you that the roof now appears good. This was also printed on your copy of the Repair Order you received when picking the van up on 23/3/15. • You have advised that you have lodged a complaint with Fair Trading and I do not understand why you suggest it will cost us $3000. • I do not accept that we are not being responsive to you. I have personally gone out of my way to assist you, left many messages for you and been honest with you in all discussions notwithstanding that you suggest that I do not have the authority or skills to deal with your issues. • We will trade the van in and give you a changeover price, but will not be buying it back at full price or swapping it for another van. Please confirm when you can bring the van in to Jayco Newcastle for assessment and discussion on changeover. If the van needs to stay overnight we will deliver the van back to you. 570 On 13 May 2015, Consumer RH responded to Mr Butcher, copied to Mr Farrand and Mr Manning, relevantly as follows - As you know we broke down the first and second times on the 2nd and 3rd days, respectively of our 1 month booked holiday up to North Queensland. We have had to cancel 2 of those bookings and wear the cost. Instead we are staying in 1 caravan park for the rest of our holiday so we won't break down again. We are pensioners. I will be in touch in a week or two. 571 Later on 13 May 2015, Mr Butcher responded to Consumer RH, copied only to Mr Manning, relevantly as follows - Thanks for reply. As mentioned any warranty work authorized by the factory will be carried out for you. Please let me know if you are coming in for warranty assessment and to discuss changing to a different model van. Please both enjoy the rest of your holidays.
Mid-2015 - Fair Trading complaint 572 In May 2015, Consumer RH lodged a complaint against Jayco Newcastle with the New South Wales Office of Fair Trading. Mr Charleson authorised Mr Butcher to manage Consumer RH's complaint on behalf of Jayco Newcastle. 573 In July 2015, Consumer RH, and Mr Butcher and Mr Farrand on behalf of Jayco Newcastle, attended a conciliation conference at the New South Wales Civil and Administrative Tribunal to seek to resolve Consumer RH's complaint. There is a document that appears to have been prepared by Jayco Newcastle ahead of that conference, which the index to the court book filed in this proceeding refers to as "Notes for Tribunal" which states - [Consumer RH] S57143 Delivered 4/12/14 17.55-96 OB JY 20/2/2015 RO 195598 Check Roof not coming down straight - Adjusted Replace Awning Knobs - Paid for parts Warwick Fitted Free 18/3/2015 RO 195598 1st Service Repair hole in tent section caused by strut bolt and modify bolt. Check Roof alignment and hold down clips- See below Bowe found on floor. Awning knobs missing again. Said partner must loosen them off. NOTED ON THIS RO WHEN BOOKING IN THAT ROOF WAS OK. Also on Customer copy [Consumer RH] subsequently rang Warwick in April as still concerned about roof. Warwick offered to pick up the van at Tea Gardens. Warwick rang on day of pick up to explain could not that day and would pick up very shortly. [Consumer RH] rang to say Partner was at a dementia course and she would bring the van in which she did on Monday 20/4/15 and Warwick booked her in. Tuesday 21st April was the storm and Jayco Newcastle was closed as no power until Friday 24th. Wawick [sic] was away Friday 24th due to an accident. [Consumer RH] rang and wanted to pick up the van understanding that no work had been done due to storm closure. [Consumer RH] picked up the van. At no time did Tony say to [Consumer RH] she would get a new roof and tent or that paperwork had been sent to Melbourne. Tony may have explained the process. Warwick did explain the process later to [Consumer RH]. [Consumer RH] left on her trip. A few days in to her trip one strut came off and Mick Prentice from Maks Mechanical and Onsite Caravan Repairs sent a technician out to Crows nest to refix the strut and also to refit brackets with larger screws. (Copy of their Warranty claim on file) When Roby[n] was later at 1770 Agnes River apparently 2 struts can off and the park Manager assiste[d] [Consumer RH] to secure the roof. [Consumer RH] left a message for Warwick and Warwick rang back many times leaving messages. [Consumer RH] said her phone had been faulty. Warwick finally discussed the situation with [Consumer RH] and spent 2 days trying to locate someone who could attend the park and fix the struts. In the area there appeared to be no-one and Warwick arranged that the park Manager would assist [Consumer RH] to get the roof down and Warwick had arranged with Jayco Mackay to fix [Consumer RH's] van urgently when she got there. (Emails on File). When Warwick rang [Consumer RH] to explain she said Jayco had found Bundaberg Caravan repairs - Barry Wells and he had driven out to her in the park and fixed the struts. He moved the upper mounting on front struts to relive [sic] pressure when lowered down and this appear[ed] to fix the problem. It was noted that the roof was still not sitting square and Barrie [sic] relayed this to Peter Manning at Jayco. Roby [sic] said she was standing behind Barry when Peter Manning authorized a new roof and tent. I HAVE AN EMAIL FROM PETER MANNING DENYING HE AUTHROISED [sic] A NEW ROOF AND TENT AND ALSO AN EMAIL FROM BARRY WELLS SAYING THAT [Consumer RH] WAS NOT WITH HIM WHEN HE SPOKE TO PETER MANNING. Referring to the lumps of Silicone, Warwick does not recall seeing anything on the van that was abnormal. [Consumer RH] staes [sic] that someone put large lumps of silicone to level the roof. This is not the case and Jayco Melbourne, Newcastle, Toowoomba and Bundaberg deny putting large lumps of silicone under the roof. Warwick did explain to [Consumer RH] that he needed to see this not just photos. [Consumer RH] mentioned at the same time that she struggles with the height of the van being an outback and on her own struggles to raise and lower the roof. Warwick suggested that perhaps a full height on road van with a rear onsuite [sic] would suit her better. Warwick suggested a 16.51-3 starcraft. [Consumer RH] in conversation said she had spoken to Jayco Coffs Harbour to get a retail price which was not much more thast [sic] she had paid and we should swap the van for free. Warwick explained her van is a used van and would be traded but there would be a cost to her notwithstanding that we would look after her. [Consumer RH] said goodwill should avoid a cost. We have a proposal if she wishes to consider it. We dispute her assertions of incompetence. Peter Manning had previously told her to contact Central Coast Caravans if she wished. As Warwick cannot see the van it is difficult to comment further. Jayco Newcastle is quite happy to pick up the van and commence a warranty process with Jayco Melbourne. If a new roof was required it could be up to 10 weeks wait. It does appear that the situation is typical of Buyers Remorse particularly as the van does not currently suit [Consumer RH]. If [Consumer RH] wishes to pursue a claim a new claim would need to bring Jayco Melbourne in as Jayco Newcastle are acting as a warranty agent for Melbourne. One issue needed to be considered is when lifting the roof if the door is not clipped fully open whilst both ends are lifted ( and perhaps her partner may have not kept it open, then the lifting force creating a vacuum inside the van will damage the easy lifters causing misalignment of the roof when lowered. We need to inspect the van.
10 July 2015 - Consumer RH traded in her RV to Jayco Newcastle for a used Jurgens RV 574 On 10 July 2015, Consumer RH and Jayco Newcastle reached an agreement for Consumer RH to trade-in her RV for a used Jurgens RV. 575 Jayco Newcastle provided Consumer RH with a trade-in allowance for her RV of $34,990, and sold her the Jurgens RV for $33,500, and consequently paid Consumer RH the difference of $1,490. During cross-examination, Consumer RH emphatically denied that she received $1,490 from Jayco Newcastle as part of this transaction. However, I find that Consumer RH's evidence in this respect was not reliable, and I prefer the evidence of the Jayco Corp witnesses about the transaction, which was supported by the sales contract and Jayco Newcastle's banking records. Consumer RH's evidence on this topic contributed to my doubts about her reliability generally. 576 An entry in the Jayco Newcastle client communication summary document for 30 July 2015, records that Mr Farrand telephoned Consumer RH, and following that conversation he noted that "she is very happy with the new van and very happy with the arrangement. So all has ended well."
Subsequent repair works 577 After the trade-in transaction, Jayco Newcastle conducted some repairs on Consumer RH's old RV on two occasions. Relevantly, on the first of those occasions, on 16 July 2015 the warranty claim document included as one of eight line items of repair work an item that stated "Modified to Suit" as the reason, with the description "CHECK ROOF ALIGNMENT ADJUSTED ROOF". 578 Consumer RH's old RV was then sold to another consumer. There were a number of warranty claims made by repairers to Jayco Corp for various items when the RV was in the ownership of the subsequent purchasers. In particular, on 16 November 2016, a warranty request for the RV was made by email by the dealer principal of Jayco Mackay to Jayco Corp. Relevantly, the request stated - Roof was misaligned which caused the struts on the pop-top tent to cut a hole. Roof lifters hit on the cupboard when down. Customer said the struts aren't in the original position because he can see the old holes We may be able to re-align but we have never successfully welded/patched holes. May require a new tent.
Consideration - defects in Consumer RH's RV 579 The defects in Consumer RH's RV which the ACCC alleged in its concise statement were as follows - Defects When defects identified When defects reported to Jayco dealer or service agent, or Jayco Corp
580 I find that the RV that Jayco Newcastle supplied to Consumer RH was not of acceptable quality owing principally to the problems that existed with the lifting mechanism for the pop top which led to misalignment, difficulties in raising and lowering the roof, holes in the skirt section, problems with the bows, and an inability to clip the roof down correctly for towing. In addition, there was an apparently unrelated problem that the water tanks did not operate correctly. As I have mentioned, Consumer RH's account of the problems that she observed upon taking delivery of the RV was not challenged in cross-examination, and I accept her evidence of the broad nature of the problems, as it was consistent with the later records of repairs that were attempted. 581 I am not persuaded that either Jayco Newcastle or Jayco Corp ever represented to Consumer RH that the roof of her RV would be replaced. It was not put that Consumer RH gave false evidence about what she had been told about a replacement roof. But as I have mentioned, I do not accept her evidence that Jayco Newcastle, Mr Wells or Mr Manning informed her that her roof would be replaced. It is possible that she was told something to the effect that if necessary, the roof would be replaced, which she misinterpreted. It is also apparent that there must have been some misunderstanding between Consumer RH, and the representative of Jayco Newcastle to whom she spoke when she picked up her RV on 23 March 2015. I doubt that she was told on that occasion that the repairs had not been done, or that a replacement roof and skirt were to be ordered from Melbourne. 582 Nonetheless, there were problems with the roof. The problems were such that they caused tears in the skirt. Jayco Newcastle attempted repairs or adjustments in both February and March 2015, as the warranty claim documents record. The later attendances of the two repair agents on site on 4 and 7 May 2015 to address problems with the roof mechanism, are capable of supporting an inference of a defect with the way the mechanism was designed, installed, or adjusted. 583 Jayco Corp submitted that, on the evidence, the issues raised by Consumer RH were likely to have been caused by user error and, in any event, were easily repairable and were not major failures. Having regard to the way the case was conducted, I do not accept that the initial misalignment of the roof mechanism and related issues, were caused by user error. It was not put to Consumer RH that she attempted to raise or lower the roof with the door closed contrary to the guidance in the owner's handbook, or in some other aberrant way. In her reply affidavit, Consumer RH stated that she had difficulty lifting the roof from the outset because the roof was uneven, and that to the best of her recollection she never set up the RV on uneven ground. While it was put to Consumer RH that the RV had been set up on uneven ground at the site at Agnes Water, it was not put that the RV was not level. And any failure of the RV to be level was not suggested as a reason for the earlier problem at Crows Nest, or the initial difficulties experienced upon taking delivery.
Was Consumer RH entitled to reject the RV? 584 Having accepted that the RV was not of acceptable quality at the time of delivery, I turn to whether the failure to comply with the statutory guarantee was a major failure. Consumer RH did not return her RV to the supplier after her May 2015 trip so that the fault with the roof could be diagnosed for her. Mr Butcher stated in cross-examination that when the RV was traded, it wasn't bad, and that all that was required was some adjustment. Mr Wells stated that in his time as a caravan repairer, he was frequently called out for misaligned pop tops, which was a frequent and minor issue. In cross-examination, Mr Wells resisted suggestions that misaligned pop tops were caused by manufacturing defects. However, this has to be reconciled with the suggestions that he made on the warranty claim form, which included to investigate whether "body or roof not produced square" (see [553] above). 585 On the other hand, there was evidence that pointed to the possibility that the defect was a manufacturing defect that had the consequence that the alignment of the roof could never be permanently resolved. Mr Murphy, who was retired at the time of giving evidence, had been the research and development manager of Jayco Corp at the relevant time, and had worked there for 40 years. He presented as being an honest and reliable witness. Mr Murphy was taken to an email dated 10 March 2014 from Jayco Mackay to Jayco Corp in which Jayco Corp's attention was drawn to a Starcraft pop top that had been delivered to the dealership and which had a misaligned roof. The dealer stated that it did not happen to every pop top, but that it did happen from time to time. Mr Murphy agreed that the Starcraft and the Journey pop top had the same roof mechanism. Mr Murphy stated that roof misalignment was not a big issue, by which he meant that there were not large numbers of misalignment cases to his knowledge. He agreed that putting aside misalignment caused by the fitment of post-manufacture options, that a roof misalignment was more likely to be a manufacturing issue. There was also evidence of other dealers reporting issues on an online dealers' forum in March and November 2015 relating to the alignment of roofs in Jayco pop tops. One dealer expressed the opinion that he believed that it was a design issue, and that the roofs were too heavy for the "easylift system". However, the nature of these suggested defects, and any necessary remedies, were not explored with Mr Murphy who was not cross-examined beyond his acceptance that if there was a roof misalignment upon delivery of an RV, then there would likely be a manufacturing issue. And Mr Murphy was not challenged about his evidence in cross-examination that misalignment of roofs was not to his knowledge a major issue in terms of numbers. 586 In the case of Consumer RH's RV, in February 2015, Jayco Newcastle determined that the roof was not coming down straight, and I find that the misalignment had caused damage to the skirt. The roof later became misaligned again when Consumer RH was travelling in May 2015. After Consumer RH traded in the RV, the roof was adjusted in July 2015 and it became misaligned again in November 2016. I do not place any weight on the November 2016 misalignment, because there was insufficient evidence about the circumstances of its occurrence. 587 The question whether the roof misalignment or the other issues that Consumer RH experienced were manufacturing defects that constituted a major failure would require that account be taken of the cause of the problems, and whether, and if so how, those problems might be rectified. That is because the nature of the failure would need to be evaluated in order to determine for the purposes of s 260(a) of the ACL whether the reasonable consumer would not have purchased the RV, and in order to determine for the purposes of s 260(c) whether the RV could easily and within a reasonable time be made fit for purpose. There is insufficient evidence to sustain a claim that defects with the water tanks or the air-conditioning themselves constituted a major failure. The focus of the ACCC's case was on the roof mechanism. 588 To say that there was a manufacturing defect with the roof mechanism leaves one to speculate about what the defect relating to the roof mechanism was, and what, if any, course of action was open to rectify the defect. If this was a claim advanced by a consumer, one would normally expect a report from a person qualified to assess the RV, which identified the nature of the fault. In this case, the ACCC has not adduced evidence of this type. Following the incidents on 4 and 7 May 2015, Consumer RH did not take the RV to the dealer to have the matter assessed prior to trading it in. Upon trading it in, the evidence is that all that was required by Jayco Newcastle was some adjustment before re-sale. The possibility that only some adjustment was necessary is supported by the evidence of Mr Wells that the need for adjustment was frequent and minor, and the evidence of Mr Butcher who said that struts and alignment issues could be easily repaired. There was also a flavour in the evidence of Consumer RH that one of her main grievances was that a pop top RV was never suitable for her circumstances, which was a specific purpose that she had made known to Jayco Newcastle prior to purchase. This would not necessarily amount to a manufacturing defect constituting a major failure for which Jayco Corp was responsible. In this state of the evidence, I am left to speculate about whether there was a manufacturing defect that constituted a major failure to comply with the statutory guarantees of acceptable quality, fitness for purpose, or departure in a substantial respect from a demonstration model. In the circumstances, the evidence does not lead me to an affirmative state of satisfaction on this question, and I am therefore not persuaded to find that there was a major failure that entitled Consumer RH to reject the goods.
Part 8: Alleged contraventions of ss 18(1) and 29(1)(m) of the Australian Consumer Law 589 As I have stated earlier, the ACCC alleges that Jayco Corp engaged in misleading or deceptive conduct, and made false or misleading representations, towards the Consumers in contravention of ss 18 and 29(1)(m) of the ACL. The text of those provisions is set out in full at [62] and [65], above.
The operation of ss 18 and 29(1)(m) of the ACL 590 Section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. Section 29(1)(m) relevantly provides that a person must not, in trade or commerce, in connection with the supply or possible supply or goods or services, make a false or misleading representation concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right or remedy (including the statutory consumer guarantees contained in Division 1 of Part 3-2 of the ACL, discussed above). The ACCC did not seek to rely on s 4(1) of the ACL, which deals with misleading representations as to future matters: see, Australian Competition and Consumer Commission v Woolworths Group Limited [2020] FCAFC 162 at [123]-[140] (Foster, Wigney and Jackson JJ). 591 The general prohibition in s 18 of the ACL has its origins in s 52 of the Trade Practices Act, which included a similar prohibition on misleading or deceptive conduct. The authorities that considered that section and developed the organising principles for its application remain relevant in considering s 18 of the ACL. The explanatory memorandum for the Bill which introduced the ACL stated that the "jurisprudence associated with the understanding and interpretation of s 52…is still relevant": explanatory memorandum to the Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth) at [3.4]. 592 Section 18 of the ACL, and its predecessor in s 52 of the Trade Practices Act, have been the subject of extensive judicial consideration on many occasions. More than a decade ago, French CJ and Kiefel J in Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited [2010] HCA 31; 241 CLR 357 (Miller v BMW) at [5] observed that "the cause of action for contravention of statutory prohibitions against conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive has become a staple of civil litigation in Australian courts of all levels." That trend has continued. In this proceeding, the parties did not dispute the principles that inform the scope and content of the prohibition in s 18 of the ACL. The relevant principles may be summarised as follows. 593 In relation to the scope of the prohibition, s 18 applies to a person's conduct "in trade or commerce": see, Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594. The question whether the alleged conduct was in trade or commerce was not in issue in this proceeding. Nor was there any dispute as to any limits arising from the words "engage in conduct" adopted in the statutory text. Those words are of wide import, and further, s 2(2) of the ACL makes clear that "engaging in conduct" captures "doing or refusing to do any act". In this respect, the circumstances in which a person's silence may amount to misleading or deceptive conduct have been the subject of particular judicial attention: see, Miller v BMW at [20]-[23] (French CJ and Kiefel J). 594 In relation to the content of the prohibition, s 18 of the ACL proscribes conduct that is either misleading or deceptive, or is likely to mislead or deceive. The question whether conduct is misleading or deceptive, or is likely to be so, is an objective question of fact that the court must determine for itself: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 (Campbell v Backoffice Investments) at [102] (Gummow, Hayne, Heydon and Kiefel JJ), citing the dissenting reasons of McHugh J in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 (Butcher v Lachlan Elder) at [109]. While the words "misleading or deceptive" have been said to be clear and unambiguous, albeit tautologous to a degree, difficulties may arise in applying the general precept framed in abstract terms to the facts of a particular case: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191 (Parkdale v Puxu) at 197 (Gibbs CJ). 595 The central question is whether the impugned conduct, viewed as a whole, has a sufficient tendency to lead a person exposed to the conduct into error, that is, to form an erroneous assumption or conclusion about some fact or matter: Parkdale v Puxu at 198 (Gibbs CJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 (ACCC v TPG HCA) at [39] (French CJ, Crennan, Bell and Keane JJ); Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130 (ACCC v TPG FCAFC) at [22] (Wigney, O'Bryan and Jackson JJ). Conduct is likely to mislead or deceive if there is a real and not remote possibility of it doing so, regardless of whether it is less or more than a 50 per cent chance: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 67; 2 FCR 82 (Global Sportsman v Mirror Newspapers) at 87 (Bowen CJ, Lockhart and Fitzgerald JJ); Butcher v Lachlan Elder at [112] (McHugh J); ACCC v TPG FCAFC at [22(a)]. It is not sufficient if the conduct merely has a sufficient tendency to cause confusion or wonderment: Parkdale v Puxu at 198 (Gibbs CJ) and 209-210 (Mason J); Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12; 202 CLR 45 (Campomar v Nike) at [106] (the Court); Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; 259 CLR 435 (Google v ACCC) at [8] (French CJ, Crennan and Kiefel JJ). 596 The focus of the enquiry is on the impugned conduct. The court must determine whether it was misleading or deceptive, or likely to mislead or deceive. The words "likely to" underscore that that the test is objective and that the impugned conduct can be assessed prospectively. It is not necessary to prove an intention to mislead or deceive, nor is it necessary to prove that the conduct in question in fact misled or deceived anyone: Parkdale v Puxu at 197 (Gibbs CJ); Google v ACCC at [6] (French CJ, Crennan and Kiefel JJ). While evidence that someone was in fact misled or deceived is admissible, and may be probative, it is not essential and it does not itself establish contravention of the prohibition: Global Sportsman v Mirror Newspapers at 87; ACCC v TPG FCAFC at [22(c)]. Further, in certain circumstances, conduct may be found to be misleading or deceptive, or likely to mislead or deceive, even where the persons to whom the conduct was directed were not in fact misled or deceived: Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96 at [4], [54] and [64] (Allsop CJ, Jagot and Lee JJ); cf, Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; 337 ALR 647 at [223]-[228] (Edelman J). 597 The impugned conduct must be viewed as a whole in all of the circumstances: Parkdale v Puxu at 199 (Gibbs CJ); Butcher v Lachlan Elder at [39] (Gleeson, Hayne and Heydon JJ). It invites error to look at isolated parts of a person's conduct, without considering their effect in the whole course of conduct: Butcher v Lachlan Elder at [109] (McHugh J, dissenting), endorsed in Campbell v Backoffice Investments at [102] (Gummow, Hayne, Heydon and Kiefel JJ). Therefore, while it is necessary to consider each instance of alleged misleading or deceptive conduct as pleaded, that consideration must be undertaken in light of all of the relevant surrounding facts and circumstances. This is the approach that I have adopted in considering the ACCC's allegations against Jayco Corp. The relevant circumstances include consideration of the person or persons to whom the conduct was directed. In Butcher v Lachlan Elder, the majority Justices drew a division between cases involving conduct directed generally towards a class of persons, and those involving conduct towards an identified person or persons: at [36] (Gleeson CJ, Hayne and Heydon JJ). In considering conduct towards a class of persons, such as in cases involving mass advertising campaigns, the court is to isolate by some criterion or criteria a representative member of the class for assessment: Campomar v Nike at [101]-[103]. In considering conduct towards an identified person, such as in the present proceeding in respect each of the Consumers, it is not necessary that the court reconstruct the person into a hypothetical, ordinary person: Campbell v Backoffice Investments Pty Ltd at [26] (French CJ). Rather, the court must consider the characteristics of the particular person: Butcher v Lachlan Edler at [36]-[37] (Gleeson CJ, Hayne and Heydon JJ). The relevant circumstances may include the relationship between the person engaging in the impugned conduct and the recipient, the knowledge of the recipient, the reasonably known characteristics of the recipient, and the effect of the conduct on a reasonable person in the recipient's position: see, Miller v BMW at [20] (French CJ and Kiefel J); Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; 337 ALR 647 at [219] (Edelman J). 598 Conduct that is misleading or deceptive, or likely to mislead or deceive, may include the making of representations as to the law or legal rights. This proceeding raises allegations of conduct of that kind. Such representations may relate to the existence of rights in a particular relationship or arising from a particular transaction, in a general sense: see, for example, Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 24; 351 ALR 584, and Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96. Others may relate to the exercise of rights in particular circumstances that may depend upon questions of judgment involving fact and degree. In considering such representations, it is necessary to be mindful that a representation in the nature of an appraisal or opinion does not necessarily give rise to a contravention of s 18 because it later proves to be inaccurate. An opinion, so expressed, at least if it is genuinely held and there is a basis for it, however erroneous, misrepresents nothing: Global Sportsman v Mirror Newspapers at 88 (Bowen J, Lockhart and Fitzgerald JJ). The High Court made this point in Campbell v Backoffice Investment, in which it was held that the provision of financial estimates in pre-contractual documents before a corporate transaction, which were believed to be true but which turned out to be inaccurate, was not misleading or deceptive. In circumstances closer to the present proceeding, Dowsett J in Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016] FCA 6 at [29], commented on the potential danger of penalising suppliers for bona fide denials of liability, such as denials that a defect in goods amounts to a major failure of a statutory warranty, which later turn out to be wrong. I have considered these issues further in assessing the ACCC's claims in this proceeding, below. 599 Such cases involving representations as to the law or legal rights may involve claims under both ss 18 and 29(1)(m) of the ACL, such as the ACCC has made in the present proceeding. The general prohibition on misleading or deceptive conduct in s 18 operates concurrently with the more specific prohibitions in s 29: see, s 18(2). 600 Turning to s 29(1)(m) of the ACL, the scope of that prohibition is narrower than that of the general prohibition in s 18(1). It is limited by reference to: the area of trade or commerce - relevantly in connection with the supply of goods; the form of the impugned conduct - being a false or misleading representation; and the subject of that representation - concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including the statutory consumer guarantees contained in Division 1 of Part 3-2 of the ACL). There was no dispute as to these limits in this proceeding. As to the content of the prohibition, there is generally "no relevant distinction between the phrases 'misleading or deceptive' on the one hand and 'false or misleading' on the other": Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 at [14] (Gordon J), cited with approval in Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 at [40] (Allsop CJ), Comité Interprofessionnel du Vin de Champagne v Powell [2015] FCA 1110; 330 ALR 67 at [170] (Beach J), and ACCC v TPG FCAFC at [21] (Wigney, O'Bryan and Jackson JJ). In this proceeding, the ACCC submitted that a general equivalence between s 18 and s 29(1)(m) applied to the impugned representations, which was not disputed. On that basis, in keeping with the structure of the parties' submissions and following the approach taken in many other cases considering these provisions, I will consider together the ACCC's allegations that Jayco Corp engaged in misleading or deceptive conduct, and made false or misleading representations, towards the Consumers in contravention of ss 18 and 29(1)(m) of the ACL. 601 Before turning to the ACCC's allegations, it is to be noted that one relevant distinction between the general prohibition in s 18(1) and the more specific prohibition in s 29(1)(m) is the broader range of remedies available upon a finding of contravention of the specific prohibition. Those available remedies extend to pecuniary penalties under s 224(1)(a)(ii), which the ACCC seeks against Jayco Corp in this proceeding, and also adverse publicity orders under s 247(1)(a) and orders disqualifying a person from managing corporations under s 248(1)(a)(ii), which the ACCC does not seek. I note that there is also a strict liability offence under s 151(m), which corresponds to the specific prohibition in s 29(1)(m), which is not raised by this proceeding.
The representations which the ACCC alleges Jayco Corp made to Consumer MO 602 In relation to the representations alleged to have been made Consumer MO, the ACCC claimed in its concise statement that - 1. In or about August 2014, a representative of Jayco Corp made oral statements to MO during a telephone call to the following effect: a. MO would have to speak to Jayco Sydney about any issues with his RV as they were responsible for the RV and any remedy provided; and b. It was not up to Jayco Corp to provide any remedy including a refund or replacement. 2. By making those oral statements, Jayco Corp represented that: a. Jayco Corp had no role in the provision of a remedy to MO by Jayco Sydney; and b. Jayco Corp was not responsible for providing any remedy including a refund or replacement. 603 There are two layers to these allegations. The first layer is the allegation in paragraph [1] that in or about August 2014 an unnamed representative of Jayco Corp made oral statements "to the following effect" during the course of a telephone conversation with Consumer MO. The second layer is a further gloss that is placed by paragraph [2] on the effect of the oral statements by alleging two representations, in much the same way that imputations in a defamation proceeding might be pleaded. 604 The meaning of words is usually sensitive to context. When spoken words are alleged to have legal consequences, it is generally necessary that there be precision in both the pleading and proof of the words alleged to have been spoken. For instance, in cases of defamation by spoken words, it is necessary to plead the words alleged to have been spoken, and to prove the publication of words that are substantially the same as those alleged: Coles Supermarkets Australia Pty Ltd v Clarke [2013] NSWCA 272 at [94] (Simpson J, Gleeson JA agreeing). That is because the cause of action is based upon the actual words used where "everything may turn on the form of words": Harris v Warre (1879) 4 CPD 125 at 128 (Lord Coleridge CJ). Similar issues may arise in determining whether a parol contract was formed, and if so, its terms. There are usually two steps in such an analysis: first, proof of the content of the oral communications, and then second, an objective determination in accordance with well-known principles of whether what was said between the parties amounted to an offer and acceptance, and if so, the terms of the offer. As with proof of any fact, these matters need not be established by direct evidence, but may arise by inference, and direct evidence may be supported by circumstantial evidence. 605 The position here is not dissimilar. The conduct of Jayco Corp that is alleged to have been in contravention of ss 18 and 29 of the ACL is the making of oral statements that are alleged to have conveyed particular meanings. I set out below some passages from the reasons of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 which are apposite, and which I respectfully adopt - Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case. There is no contemporaneous document in evidence which supports the making of any such promise or representation as is relied on and no other satisfactory corroboration. 606 Material extracts from these passages have been cited with approval by the Full Court: CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [45] (McKerracher, Robertson and Lee JJ); Innes v AAL Aviation Ltd [2017] FCAFC 202; 259 FCR 246 at [92] and [125] (Tracey and White JJ), and [186] and [188] (Bromberg J); Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 at [73] (Dowsett, Rares and Logan JJ). 607 I have referred at [166] above to Consumer MO's evidence about the alleged oral statements, which must now be examined in more detail. 608 In his affidavit dated 12 October 2017, Consumer MO stated as follows - 61. Around this time but I do not now recall exactly when, I called Jayco Corporation asking to speak to someone about the problems I'd been having with Jayco Sydney and my camper trailer, in that I wasn't getting anywhere with them. They passed me on to Phil (Phil) who I understood to be pretty high up in Jayco Corporation. 62. At this stage the camper trailer's roof had already collapsed twice, and it would have been about a year old. It had been in repairs for a few months. [Last sentence not read]. 63. I spoke to Phil about what was happening, and he sounded so sympathetic. I explained to Phil that I was dissatisfied with the product, that the roof had collapsed and that I was at my wits end. I told him about the conversation I had with Tyrone at the 2014 Rosehill show. He gave me the impression that he was going to help make a change and that I was finally getting somewhere. But then he told me that I would have to go back and speak to Tyrone about any issues that I had with my camper trailer as he was the selling dealer responsible for my camper trailer and any remedy provided. Phil also said something to the effect that it was not up to Jayco Corporation to provide me with any remedy including a refund or replacement. I got the impression from Phil that it was nothing to do with Jayco Corporation, that all they did was supply the product and that I had to deal with Tyrone to get any remedy whatsoever because I had not bought it from Jayco Corporation - I had bought it from Jayco Sydney. 64. It seemed like neither Jayco Corporation nor Jayco Sydney could come to an amicable solution to satisfy me as a customer. 65. I felt like I had no other option but to let them try to repair my camper trailer. From what I was told by Tyrone and Phil, I got the impression that there was no way Jayco Corporation or Jayco Sydney would give me a new camper trailer. 609 In oral evidence-in-chief, Consumer MO changed his affidavit evidence, stating that the reference to "Phil" in paragraphs [61] and [63] of his affidavit was a mistake of his, and that the person to whom he spoke was Peter Manning. In cross-examination, Consumer MO said that he realised the mistake in the time leading up to the hearing, stating - … somewhere along the lines I've - I've got jumbled and mixed up with a single name. And - and - and going back through some of the paperwork that I do have at home, I made the understanding that I had written some notes down on the day of the phone call to Jayco - Jayco Australia in Melbourne. And I came across his name, and I realised at that stage that I had called him "Phil" in my affidavit and not Peter Manning. 610 Consumer MO stated in cross-examination that he had made a contemporaneous note of the conversation in a job book, which was more than likely at his home. Later in cross-examination, Consumer MO agreed that the note that he took consisted of no more than Mr Manning's name and telephone number, that there was no date attributed to the note, and that there was no note of what was discussed. 611 Consumer MO was asked about when the conversation took place - Q: So when did that happen, Mr [MO]? A: I - I just said to you I would have to refer to my notes. It would be after I have sent the letter of demand saying that I'm dissatisfied with the repairs and that they had not finished them properly, and I wanted my money returned to me. So it was after the letter of demand was sent. Q: And when was the letter of demand sent? A: I said to you that I would have to refer to my affidavit. Because this happened - it is now 2019. This happened in 2014, the best part of nearly five years ago now. And my memory is not that great that I will keep such an - an awful experience like dealing with Jayco down to the days and the - and the dates of - of a phone call that - of multiple, multiple times I made phone calls to Jayco, whether it was Blacktown and Jayco Australia, trying to resolve this issue. 612 Consumer MO identified the letter of demand to which he was referring in his answer as the letter to Mr Holman dated 17 August 2014 to which I referred at [170] above. That letter elicited responses from Mr Manning and Mr Holman the following day, to which I referred at [172] and [173] above. 613 Mr Philip Rigby was at the relevant times employed by Jayco Corp as a service manager. There are emails in evidence passing between him and Jayco Sydney in 2014 in which he referred to himself as "Phil". In cross-examination, Consumer MO stated that he had not ever heard the name Philip Rigby in connection with the case. 614 Consumer MO gave evidence in cross-examination in relation to the preparation of his affidavit, which he described a process of reconstruction - Q: Do you recall how long it took to draft your affidavit? A: Very, very long period of my personal time. We spent a lot and a lot, a lot of hours on the phone trying to reconstruct through the photographs of - of the photographs of all of the problems I had, was we were using the dates from those times to work out when the van was taken, repaired, returned, re-taken again, repaired again. And it was all to do with - as - as - as the van left my premises, I would take a photo of it on the tilt tray again. As it would return home, I would take photos of the things that weren't finished that had just been in to be repaired. The ACCC provided so much of the timeline because Jayco had given them so much of the corresponding information between me and them. This is how the case has come around, is that as Jayco Blacktown have had multiple complaints against them, and then out of the blue the ACCC have turned up for an inquiry, and rung me after many, many years of - of - I had sent them a letter of demand. I never got anything out of it. I had never got my - my - my situation resolved, and I had gone off with my life. I had gone on with my life. And then the ACCC have dug this up and investigated this. 615 Mr Manning was cross-examined about the claimed conversation. He was first asked whether he recalled having a conversation with Consumer MO at any stage - Q: … do you recall having a telephone conversation with [MO] at any stage? A: At this - at this point unless I've got some reference to it, no, I don't. Q: Right. Is it possible that you had a conversation with [MO] at some stage, during the course of which the van had been in for repairs for a few months, but had not yet been completed? A: Honestly, I can't recall. 616 The cross-examination of Mr Manning then proceeded upon a hypothesis that it was possible that he had a conversation with Consumer MO - Q: Right. [MO] says that around the time of when the van had been in repair for a few months, he had a conversation with you. Now, you can't recall it, but you wouldn't reject the possibility that you had a conversation with [MO]? A: Yes. It would be a strong chance if it was - the van was in for a long period. He - he would have possibly called me direct. Q: Thank you. And he says that in the course of that conversation, he told you that he was dissatisfied with the product, that the roof had collapsed and that he was at his wit end - wit's end, or words to that effect. It's possible that he said that to you? A: Quite possible. Q: Yes. And he said that you said to him he would have to go back to Tyrone about any issues that he had with the camper trailer, as Tyrone was the selling dealer and was responsible for any remedy, or words to that effect. Is that the type of thing that you might have said? A: I don't know about the remedy section, what that means. Q: He mightn't have used that phrase, I suppose? A: But it could have - it could have been down the path of what we've already talked about with: I can only authorise repairs and your contract of sale is with Sydney and you will have to - if - again, if we - we were talking about a replacement or refund, I possibly would have worded it like that, to contact - - - Q: Yes. If he raised with you that he wanted a refund or a replacement. A: Yes. Q: - - - it's quite possible that you would have said to him words to the effect that: well, you will have to go back and speak to Tyrone about that?--- A: Yes, or his selling dealer. Q: Or the selling dealer? A: Yes. 617 For the following reasons, I do not accept the ACCC's claim that Jayco Corp made oral statements to Consumer MO to the effect of those alleged in the particulars of its concise statement to which I have referred at [602] above. 618 I do not accept as reliable Consumer MO's evidence of the alleged conversation. In his affidavit, after referring to the occasion on which Jayco Sydney collected his RV on 7 May 2014, Consumer MO stated that the conversation occurred at "around this time", but that he could not recall when. The structure of the affidavit places the conversation at about 7 May 2014. Paragraph [65] of the affidavit, which refers to Consumer MO feeling like he had no other option other than to allow Jayco Sydney to repair the RV tends to support this timing. However, in cross-examination, Consumer MO placed the conversation after he had sent his letter to Mr Holman dated 17 August 2014, to which he received responses from Mr Manning and Mr Holman the following day. Mr Manning's response makes no reference to a conversation with Consumer MO, and neither response supports a finding that a conversation of the type that Consumer MO described in his affidavit occurred at that time. The drafting of Consumer MO's affidavit relied upon reconstruction, which is apparent from his answers in cross-examination. Although Consumer MO stated that his recollection of the fact that the conversation was with Mr Manning rather than "Phil" was based upon a written note, he also stated that the note did not record either the substance or the date of a conversation. Moreover, Consumer MO's evidence about the conversation was impressionistic: he referred to his "impression" on three occasions in paragraphs [63] and [65] of his affidavit. It was in this context that Consumer MO stated that "Phil", which he corrected to Mr Manning, said "something to the effect" that it was not up to Jayco Corp to provide him with any remedy, including a refund or replacement, which formed the foundation for one of the limbs of the representations that the ACCC alleges. 619 The material part of Mr Manning's evidence in cross-examination is that he did not recall speaking to Consumer MO. As I have already remarked, the balance of the cross-examination proceeded upon a hypothesis that it was possible that he spoke to Consumer MO. 620 On this state of the evidence, I am not persuaded that Consumer MO spoke to Mr Manning at all, as distinct from somebody else at Jayco Corp such as Mr Philip Rigby. Further, as I have detailed, the evidence is inconsistent in relation to the context of the alleged conversation. Moreover, the evidence does not establish the content of any spoken words to a standard that enables an evaluation to the degree necessary to consider whether they gave rise to the representations alleged, and whether they amounted to conduct in contravention of the relevant provisions of the ACL. This is a case where "everything may turn on the form of words". To determine whether there was any contravening conduct would require careful consideration of the actual words employed, and their context, which the evidence adduced by the ACCC does not permit. For these reasons, I am not persuaded that Jayco Corp made the representations to Consumer MO that were alleged by the ACCC.
The representations which the ACCC alleges Jayco Corp made to Consumer TB 621 In relation to the representations alleged to have been made by Jayco Corp to Consumer TB, the ACCC claimed that - 1. On 5 March 2014, Peter Manning, a Jayco Corp Customer Service Manager, sent an email to TB responding to his first request to Jayco Corp for a refund by stating: "I cannot help you with a refund as per your email request. This would need to be done via your selling dealer as they have your sales contract. I hope it does not come to that for you." 2. On 7 August 2014, Mr Peter Manning of Jayco Corp sent an email to TB responding to his statement that he will not accept the decision to send the RV back to Melbourne for repairs and making his second request of Jayco Corp for replacement, by stating: "senior management['s] … only offer … is to bring the van down to the factory to have repairs done". 3. On 7 August 2014, TB responded to Mr Manning's statement per paragraph [2] above by email enquiring who, the selling dealer or senior management at Jayco Corp, had responsibility for deciding whether the RV would be replaced. Mr Manning responded by email stating: "Yes you would normally have to take this up with your selling dealer in regards to a refund or replacement van first. They will talk to senior management here about that though. Senior management have discussed your case with me after I told them what your emails were about. They do not deem the repairs to be major." 4. On 31 October 2014, Mr Phillip Rigby, a Jayco Corp Service Manager, made an oral statement to TB during a telephone call to the effect that: a. TB was not entitled to a refund because Jayco Corp was willing to repair his RV. 5. By making the statement particularised in paragraph [1] above, Jayco Corp represented that Jayco Corp had no role in the provision of a refund to TB by Jayco Sydney. 6. By making the statement particularised in paragraphs [2] to [4] above, Jayco Corp represented that TB was not entitled to a refund. 622 The statements alleged in paragraphs [1], [2], and [3] of the ACCC's particulars were in writing and were admitted by Jayco Corp in its concise statement. It shall be necessary to refer to the evidence about the context of those statements. 623 Jayco Corp did not admit the oral statement by Mr Rigby to Consumer TB on 31 October 2014 alleged in paragraph [4] of the ACCC's particulars, and it is therefore necessary to consider the evidence. Consumer TB stated the following in his affidavit - 126 At some point during my interactions with Jayco Corporation (but I now can no longer recall precisely when), I was climbing up a mountain when someone higher up from Jayco Corporation called me. 127 I asked this person specifically for a refund, because of all of the issues and leaks we experienced, and the stress and anxiety it had caused. He said something to the effect of I couldn't get a refund because Jayco were happy to repair the van. I understood him to be telling me that I would not be able to get a refund under any circumstances as long as Jayco was willing to continue to attempt to repair the van, even though the repairs had been previously unsuccessful. 624 Consumer TB did not identify Mr Rigby in this evidence about the conversation. The evidence was not challenged in cross-examination. 625 For his part, Mr Rigby of Jayco Corp referred in his affidavit to a call he made to Consumer TB on 31 October 2014. After that call, he sent an email to Mr Holman at Jayco Sydney in which he conveyed that TB was "still asking for Jayco Sydney to buy the van back" (see [345] above). Mr Rigby also stated in his affidavit - 43 While I do not recall the exact interaction, I believe that I spoke with [Consumer TB] over the phone in early November 2014, certainly prior to 7 November 2014, but only to arrange for delivery of the van, to confirm what we were repairing, and the timing of those repairs. 44 On one occasion, he mentioned that he wanted a replacement van. I do not have any authority to deal with those statements. I believe I directed him to Jayco Sydney or to contact Jayco Corporation via , which is consistent with my usual practice. 626 Mr Rigby referred to the possibility of a further conversation with Consumer TB - 50. It is possible I had further conversations with [Consumer TB] noting the delamination issue and other additional issues, and that I notified him of delays for those repairs. This will often happen if parts need to be ordered in. I may have told him it was up to Jayco Sydney to determine whether they would refund or replace the van. That is consistent with my understanding of the obligations of the selling dealer. 627 I refer to what I said at [604] to [606] above in relation to the oral statement that the ACCC alleged that Jayco Corp made to Consumer MO. The evidence on which the ACCC relied in support of the statement to Consumer TB alleged in [4] of its particulars was vague and imprecise as to the occasion of the alleged statement. It failed to identify expressly who made the statement, and it was imprecise as to the content of the statement. Mr Rigby was on notice of this evidence, and dealt with it in his affidavit by referring to three conversations with Consumer TB, but none of them contained a statement substantially to the effect alleged by the ACCC. Mr Rigby was cross-examined by senior counsel for the ACCC about a range of matters, but it was not put to him that he had made a statement to Consumer TB substantially to the effect alleged in paragraph [4] of the ACCC's particulars. This failure affects the weight and cogency of the evidence relied on by the ACCC: Bulstrode v Trimble [1970] VR 840 at 846-847 (Newton J). In these circumstances, I am not persuaded that Mr Rigby made a statement to Consumer TB substantially to the effect alleged. That leaves for consideration the written statements on which the ACCC relied. 628 I shall now consider the three written statements in turn. The first statement by Mr Manning of Jayco Corp on 5 March 2014 was made by email in response to the email that Consumer TB had sent to Mr Manning on 4 March 2014, to which I referred at [246] above. The focus of that email included a complaint about Jayco Canberra and its failure to return telephone calls. In the context of those complaints, Consumer TB requested that Mr Manning "investigate Jayco refunding the van". In response to that request, Mr Manning stated that he could not help Consumer TB with a refund, and that it would need to be done through the selling dealer. The ACCC alleges that by Mr Manning's statement, Jayco Corp represented that it had no role in the provision of a refund to Consumer TB by Jayco Sydney. 629 Consumer TB stated in his affidavit that he understood Mr Manning to be saying in his email that he could not get a refund under any circumstances from Jayco Corp, and that the only way that he could get his money back was by going back to Jayco Sydney. Consumer TB also stated in his affidavit that he was surprised and confused that Mr Manning could not organise a refund for him, given that he was from the head office of Jayco Corp and he had thought Jayco Sydney was representing Jayco Corp. 630 Whether the conduct of a person in trade or commerce is misleading or deceptive, or a representation is false or misleading, is to be determined objectively. Consumer TB's interpretation of what Mr Manning stated in his email, while relevant, is not determinative. In this case, I give Consumer TB's interpretation of what Mr Manning stated little weight. That is for two related reasons. The first is that it is at variance with the ACCC's pleaded case in relation to Mr Manning's statement in the email, which had a different focus. In their closing submissions counsel for the ACCC submitted, consistently with the pleaded case, that the 5 March 2014 email created the impression that Jayco Corp had no role in the provision of a refund to Consumer TB by Jayco Sydney, and that this representation was false because Jayco Corp did have a role in the decision-making process. The second and related reason is that I do not accept the ACCC's claim that the email conveyed the representation that was alleged. The subject matter of Mr Manning's statement in the email was guidance as to how Consumer TB should direct his claim for a refund. The statement was made in a context where - (1) Jayco Sydney was the supplier of the RV, as Consumer TB knew; (2) under the provisions of the ACL, only Jayco Sydney was directly liable to Consumer TB to refund the purchase price or to replace the RV in the event that there was a major failure to comply with a relevant statutory guarantee; and (3) the terms of the Jayco warranty (see [73] above) directed customers to contact a Jayco dealer or agent. 631 In context, the representation alleged by the ACCC was extraneous to the statement made in Mr Manning's email of 5 March 2014, which was concerned with directing Consumer TB as to how he should channel his request for a refund. Accordingly, I do not accept that the email was misleading or deceptive, or likely to mislead or deceive, or that it was a false or misleading representation, as the ACCC claimed, which involved placing an unreasonably strained construction on the statement in the email that I do not consider that the email objectively conveyed, or was likely to convey. 632 The second and third statements in two emails of Mr Manning of 7 August 2014 were relied on by the ACCC as representations by Jayco Corp that Consumer TB "was not entitled to a refund". The second statement was contained in an email of Mr Manning that was in reply to Consumer TB's email of the same day, 7 August 2014 (see [294] above). In that email, Consumer TB summarised his grievances relating to the RV, and attached a 32 page document. He stated that he would not accept the decision to send the RV to Melbourne for repairs, and stated that he stood by his position that "this van needs to be replaced as soon as possible". In response to that demand, Mr Manning stated in his reply (see [296] above) that he had checked with senior management, and that their "only offer … is to bring the van down to the factory to have repairs done as explained to you by Jason Holman". 633 As to the third statement, on 7 August 2014 Consumer TB responded to Mr Manning's email in the terms set out at [298] above, and enquired who had responsibility for deciding whether the RV would be replaced, and requested the contact details of a senior manager. Mr Manning responded to Consumer TB by email (see [300] above) which included the statement alleged by the ACCC in its particulars. 634 There are difficulties with the ACCC's case in relation to the second and third statements. The alleged representation that Consumer TB "was not entitled to a refund" is necessarily an interpretation or an implication, and in terms it is ambiguous. The claimed representation that Consumer TB was not entitled to a refund is ambiguous because it could have a number of variations, including - (1) as a matter of law, consumers in the position of Consumer TB were not entitled to refunds; (2) Jayco Corp had decided that it would not give Consumer TB a refund; or (3) taking account of all the facts and circumstances, as a matter of objective entitlement, Consumer TB was not entitled to a refund. 635 A statement in the form of the first type of representation is in the nature of an incorrect statement of the law, which may constitute misleading or deceptive conduct and, to the extent that it might misrepresent rights or remedies available under Division 1 of Part 3-2 of the ACL, may engage s 29(1)(m). Such a statement is of a similar character to those considered by the Full Court in Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224; 351 ALR 584, and Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96. In that type of case, the representation relates to the existence of rights, and not to their exercise in particular circumstances that may depend upon questions of judgment involving fact and degree. In Valve Corporation, the representations related to an online gaming distribution platform, and included representations that that fees paid by a consumer were not refundable, and that statutory guarantees, such as that of acceptable quality, were not applicable. The representations were alleged to be false or misleading because the software that was supplied to consumers in Australia was subject to the statutory guarantees and remedies under the ACL. In LG Electronics, the Full Court held that on two occasions LG Electronics had made false representations concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right or remedy, as provided for in s 29(1)(m) of the ACL. 636 A statement in the form of the second type is a statement of what Jayco Corp was prepared to offer. 637 A statement of the third type is a conclusion that depends upon questions of fact and law that might require thorough investigation, and in respect of which there might be reasonable differences of opinion. In particular, that may be so when the ultimate question involves evaluative judgments about whether a failure to comply with a statutory guarantee is a major failure. In its submissions, the ACCC relied on the representation that Consumer TB was "not entitled to a refund" in this third sense. The ACCC submitted that because the facts established that Consumer TB was entitled to a refund, the statements made by Jayco Corp created a false impression. 638 The starting point in assessing the ACCC's claim is to consider what was actually said, and the context in which it was said: see, LG Electronics at [57]. Starting with the second statement, fairly understood the statement went no further than to communicate what Jayco Corp's position was in relation to Consumer TB's request for a refund. Whether he was so entitled was an issue that Jayco Corp contested, and continued to contest in this proceeding. In context, Mr Manning's statement about what senior management of Jayco Corp was prepared to offer did not misrepresent the nature or content of rights under the ACL. Nor did the words used by Mr Manning convey a representation in the sense argued by the ACCC, namely as a matter of objective analysis Consumer TB was not entitled to a refund. Mr Manning's statements conveyed nothing more than Jayco Corp's position on the basis of the facts presented to it. 639 The third statement relied on by the ACCC was of the same character. It was a statement about the opinion of senior management of Jayco Corp on the basis of the facts presented, namely that they did not deem the repairs to the RV to be major, and by implication that would be the view that they would convey to the selling dealer when discussing whether Consumer TB was entitled to a refund or a replacement. 640 For the foregoing reasons, I do not accept the ACCC's claims of contravention of ss 18(1) and 29(1)(m) of the ACL in relation to the statements alleged to have been made by Jayco Corp to Consumer TB.
The representations which the ACCC alleges Jayco Corp made to Consumer JT 641 In relation to Consumer JT, the ACCC alleged that - 1. In about late January 2016, JT had a telephone conversation with two representatives of Jayco Corp who he identifies as a manager and one of his bosses. During that conversation, JT made his third request to Jayco Corp for a refund or replacement. The Jayco Corp representative(s) responded in words to the effect that: a. JT would not be given a refund or replacement; b. JT's RV would be repaired because it was under warranty and JT had to give Jayco Corp a chance to fix it. 2. By making the statements particularised in paragraph [1] above, Jayco Corp represented that JT was not entitled to a refund or replacement from anyone and was required to allow further repairs to be carried out. 642 At [431] above, I have accepted Consumer JT's evidence as to the fact of the telephone conference call with two employees of Jayco Corp, and as to what was stated by them in the call. For reasons to which I will come, I find that the call likely occurred on or after 1 February 2016. Consumer JT's affidavit evidence about the call was as follows - 52 Around this time, although I now [no] longer recall precisely when, I had a conference call with a Manager at Jayco Corporation and one of his bosses. 53 During this conversation, I was again told that I would not be given a refund or replacement. 54 During this conference call, one or both of the Jayco people spoke. I now cannot recall who said what but I can recall generally what was said. Part of the conversation was in words to the following effect: Jayco person said: You are getting it repaired, it is under warranty, you have to give us a chance to fix it. I said: I have given you the chance to fix it and I don't want it to be repaired again, I want my money back or a new van. They said: Well, tell us what you want. I said: I want what I paid for, or my money back. They said: Well, you got what you paid for. I said: No, I got a van that is leaking. They said: We will fix it. 55 The impression that I got was that I had no rights to get a refund and that they would only offer to repair it. I understood that I would not get a refund or replacement in any circumstances, from anyone. I got the impression from how Jayco Corporation dealt with me that Jayco Corporation were bullies. They knew that I could not take them to court or do anything to get the resolution I wanted, and they were trying to get me off the phone and just give me constant repairs with no actual solution. The way they treated me, I thought that they were not concerned with my actual issues and were trying to get me to just go away. 643 As has been indicated, the ACCC alleges that Jayco Corp represented that Consumer JT was not entitled to a refund or replacement from anyone and was required to allow further repairs to be carried out. The words "from anyone" in the pleaded representation are significant, because I did not understand the ACCC to submit that Jayco Corp was directly liable to Consumer JT to replace his RV, or to furnish a refund. Having said that, I find on the unchallenged evidence that the substance of the call was concerned with whether Consumer JT was entitled to a refund or replacement RV at all, and was not concerned with the niceties of the different liabilities of Jayco Corp and Jayco Sydney. 644 I have referred at [634] to the ambiguity that may exist in statements made in the course of conversations about requests for refunds or replacement goods. I am not persuaded that, by the words used, the Jayco employees were conveying anything more than their opinion that there was no major failure, and Jayco Corp's position that the RV could be repaired, and that for those reasons Consumer JT was not entitled to a refund. A representation of that type is consistent with other communications at about that time, including the first paragraph of Mr Holman's email to Consumer JT on 1 February 2016 to which I referred at [443], and the statements attributed to Mr Holman at the meeting in early February 2016 to which I referred at [452] to [457] above. The conduct in making those statements was not misleading or deceptive simply because, upon a full and careful appraisal of all the evidence, the court has come to a different view on the contestable issue whether there was a major failure to comply with the statutory guarantee of acceptable quality.
The representations which the ACCC alleges Jayco Corp made to Consumer RH 645 In relation to Consumer RH, the ACCC alleged in its concise statement that - 1. On 5 May 2015, Mr Peter Manning, a Jayco Corp Service Manager, responded to RH's first request for a refund or replacement from Jayco Corp by stating: "I am in warranty. So from Jayco I can approve warranty repairs. I cannot help you with another van or money back. You will have to go back to the place you have your contract of sale with. That being Jayco Newcastle. I cannot guarantee this will be the outcome for you as the terms and conditions of warranty are to repair van." 2. By making the statement particularised in paragraph 1 above, Jayco Corp represented that: a. Jayco Corp would not approve the replacement of RH's RV under the Jayco Warranty; b. Jayco Corp had no role in relation to the provision of a refund to RH by Jayco Newcastle; and c. RH was not entitled to a refund or replacement from anyone and the only remedy available to her was a repair. 646 I have referred to Mr Manning's email to Consumer RH of 5 May 2015 at [533] above. It was not in dispute that the email was sent, or that it contained the statements alleged by the ACCC. 647 I do not accept that the statements made by Mr Manning were misleading or deceptive, or constituted false representations, in the sense claimed by the representations alleged in paragraphs [2(a)] and [2(b)] set out above. The representation alleged in paragraph [2(b)] is contrived and not tenable, and the representation alleged in [2(a)] is strained. Even if the representation alleged in paragraph [2(a)] was conveyed, I do not consider that it was misleading or deceptive as to Jayco Corp's position in relation to Consumer RH's RV. 648 The real gravamen of the statement, however, is the representation alleged in paragraph [2(c)], the substance of which I find was conveyed by the statements in Mr Manning's email. Because the representation was made by reference to the "terms and conditions of warranty', Mr Manning's statement was not a statement of Jayco Corp's position in relation to Consumer RH's claim, but was a representation as to legal entitlements generally. The statement did not make clear whether it was directed solely to the contractual terms contained within the Jayco warranty itself that granted Jayco Corp sole discretion to repair or replace the RV or defective parts of the RV, or whether it also extended to the "terms and conditions of warranty" in a broader sense including consumers' rights under the ACL, which were expressly stated not to be excluded under the Jayco warranty. My view is that, read objectively and in context, Mr Manning's statement extended to that broader meaning. The statement distinguished between the position of Jayco Corp under the Jayco warranty, and the position of the selling dealer, Jayco Newcastle, who Consumer RH had her "contract of sale with", which gave rise to Jayco Newcastle's obligations as a supplier under the ACL. Mr Manning directed Consumer RH to take up her request for a replacement RV or a refund with Jayco Newcastle. Then, by the final sentence of the statement, Mr Manning represented that he could not guarantee the outcome of any approach by Consumer RH to Jayco Newcastle, and in doing so, his statement necessarily carried a representation as to Consumer RH's legal entitlements in the broader sense including her rights as a consumer under the ACL. 649 The representation was misleading or deceptive, and was false or misleading, because it conveyed that the only remedy to which Consumer RH could ever be entitled was repair, because that was the claimed effect of the Jayco warranty. This was not the case because the Jayco warranty did not affect the rights of a consumer under the ACL. 650 Jayco Corp submitted that the statement made by Mr Manning was true, in that - (1) the issues raised by Consumer RH did not give rise to any contractual relief other than repairs; (2) Mr Manning did not have authority to approve consumers' requests for refunds or replacements; (3) the first step in Jayco Corp's warranty process, in so far as the consumer wished to obtain a replacement RV, was that the consumer was asked to have his or her RV assessed by the selling dealer; and (4) insofar as the consumer wished to obtain a replacement RV or a refund, the selling dealer had the primary obligations under the ACL to provide it in appropriate circumstances. 651 These submissions were directed to the statement, and did not engage with the representation alleged in paragraph [2(c)] which is the material sense in which I find that the statement was misleading or deceptive, and false or misleading. Jayco Corp also submitted that Consumer RH was well aware of her rights under the ACL. It is unnecessary that I make any finding about that question at this point, because it is irrelevant to the objective question whether the conduct was misleading or deceptive or likely to mislead or deceive, or whether the representation was false or misleading. If it were necessary to make a finding on that issue, I would not accept the submission of Jayco Corp. Senior counsel for Jayco Corp did not explore in cross-examination of Consumer RH the extent to which she was aware of her rights under the ACL, and while the evidence might support an inference that Consumer RH had a general awareness that consumers have rights, it does not establish that Consumer RH was "well aware of her rights under the ACL" such as to eliminate the reasonable prospect that Mr Manning's statement was liable to mislead. 652 I therefore find that by Mr Manning's first email to Consumer RH dated 5 May 2015, Jayco Corp engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18(1) of the ACL, and that in addition, Jayco Corp made a false or misleading representation in contravention of s 29(1)(m) of the ACL concerning the existence of a right or remedy.
Part 9: Unconscionable conduct 653 Sections 21 and 22 of the ACL are set out at [58]-[59] above.
The operation of s 21 of the ACL 654 The main appellate authorities that have considered the operation of s 21 of the ACL and cognate provisions in the Australian Securities and Investments Commission Act 2001 (Cth) include: Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 (Allsop CJ, Jacobson and Gordon JJ) (Lux); Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; 236 FCR 199 at [259]-[306] (Allsop CJ, Besanko J at [371] and Middleton J at [398] agreeing) (Paciocco FCAFC); Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28; 258 CLR 525 (Paciocco HCA); Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 (Kojic) at [53]-[59] (Allsop CJ, Besanko J at [69] and Edelman J at [85] agreeing); Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75; 251 FCR 404 (Colin R Price) at [51]-[58] (Rares, Murphy and Davies JJ); Australian Competition and Consumer Commission v Medibank Private Ltd [2018] FCAFC 235; 267 FCR 544 (Medibank) at [232]-[255] (Beach J, with whom Perram J at [2] and Murphy J at [103] agreed); and Australian Securities and Investments Commission v Kobelt [2019] HCA 18; 368 ALR 1 (Kobelt). There is also a helpful summary of the relevant principles by Beach J in Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) [2020] FCA 208; 380 ALR 27 at [362]-[379]. 655 In Kobelt, there are differences of expression and emphasis in the reasons of the majority Justices, Kiefel CJ and Bell J, Gageler J, and Keane J, in describing some aspects of the organising principles. However, as a question of authority, I do not understand the reasons of the majority Justices in Paciocco HCA or Kobelt as combining to detract from the analysis and the principles that were essayed by Allsop CJ in Paciocco FCAFC. It is not possible in any summary of principles to do justice to the depth of that analysis. Subject to that observation, for the purposes of the present proceeding, I take the applicable principles to be as follows. 656 When a question arises as to whether impugned conduct is unconscionable for the purposes of s 21(1), what is required is an evaluative conclusion as to whether the conduct is to be characterised as unconscionable. In undertaking that evaluative task, the text of s 21(1) directs attention to all the circumstances, which informs the judicial technique that is required in assessing the impugned conduct against the statutory norm: see, Kobelt at [86]-[87] (Gageler J) and at [120] (Keane J), Paciocco FCAFC at [271] and [281], and Medibank at [233]-[236]. An allegation that a party has engaged in unconscionable conduct requires that there be "a scrutiny of the exact relations established between the parties": Jenyns v Public Curator (Qld) (1953) 90 CLR 113 (Jenyns) at 118 (Dixon CJ, McTiernan and Kitto JJ), cited in Kobelt at [115] (Keane J). As such, an evaluation of whether conduct is unconscionable involves taking a more comprehensive view of the facts than a court of law might in determining whether the elements of a common law cause of action are made out, because the evaluation by the court of an allegation of unconscionable conduct invites attention to "every connected circumstance that ought to influence its determination upon the real justice of the case": The Juliana (1822) 2 Dods 504 at 522 (Lord Stowell); Paciocco FCAFC at [271]-[275] (Allsop CJ); Jenyns at 119; Kobelt at [120] (Gagler J). The judicial technique that is described in these authorities has some similarities to the consideration of circumstantial evidence, which may involve evaluating the overall effect of the detail, which may be "best appreciated by standing back and viewing it from a distance, making an informed, considered and qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details": Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141 (Tadgell JA), citing Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944 (Mummery J). 657 While the enquiry involves an evaluative judgment, it is an enquiry to which there is one correct answer: Kobelt at [47] (Kiefel CJ and Bell J). As such, the evaluation does not involve some mix of judicial discretion, personal intuitive assertion, or the formless void of individual moral opinion, but as Allsop CJ stated in Paciocco FCAFC at [296], it is "an evaluation which must be reasoned and enunciated by reference to the values and norms recognised by the text, structure and context of the legislation, and made against an assessment of all connected circumstances." See also: Kojic at [56] and [58] (Allsop CJ), and cf, Muschinski v Dodds [1985] HCA 78; 160 CLR 583 at 616 (Deane J). 658 The statutory norm established by s 21 of the ACL is fixed by the text of the section, when construed against its context and purpose. The language of the norm is broadly expressed, and is to be understood and applied in the particular circumstances that arise: Lux at [41]. The matters set out in s 22(1) are matters to which the court must have regard, if relevant: Kojic at [72] (Besanko J); Medibank at [252], both citing Paciocco HCA at [189] (Gageler J). The matters provide guidance for the purpose of determining whether a person has engaged in unconscionable conduct in connection with the supply or possible supply of goods or services. The themes running through the matters specified in the paragraphs of s 22(1) were identified by Allsop CJ in Paciocco FCAFC at [285] to be: fairness and equality - see paras (a), (b), (d) to (k); a lack of understanding or ignorance of a party - para (c); the risk and worth of the bargain - paras (e) and (i); and good faith and fair dealing - para (l). While disparity in bargaining power between the parties, which is referred to in s 22(1)(a), may be one factor which may contribute to the evaluation, its mere existence does not establish that the party with superior bargaining power acts unconscionably by exercising it: Paciocco HCA at [293] (Keane J). 659 Although the structure and language of ss 21 and 22 of the ACL bear close similarities to ss 12CB and 12CC of the Australian Securities and Investments Commission Act, which were considered in Paciocco FCAFC, Paciocco HCA, and Kobelt, one must bear in mind that s 21 sits within the ACL, and is specifically concerned with conduct in connection with the supply of goods and services which, in respect of transactions with consumers, is also regulated by other provisions of the ACL to which I have referred. While statements of principle relating to cognate provisions in other legislation provide highly valuable and persuasive insight and guidance in relation to the operation of s 21 of the ACL, one must be mindful that what is in issue is s 21 of the ACL, and its text, context, and purpose, and the harmonious goals to which the ACL is directed: see, Brennan v Comcare [1994] FA 360; 50 FCR 555 at 572 (Gummow J), McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646 at [40] (McHugh, Gummow and Heydon JJ). 660 The legislative choice of the word unconscionable in s 21 of the ACL to identify the conduct that is proscribed is significant to determining the scope of the proscription: Kobelt at [118]-[119] (Keane J). So too is the provision in s 224 of the ACL for the imposition of a penalty for contravention of s 21: Paciocco FCAFC at [300]; Medibank at [254]. In Kojic at [53], Allsop CJ referred to the seriousness of a finding of unconscionable conduct, which in that case was sought against a bank. 661 Focussing on s 21(1), unconscionable means something not done in good conscience: Lux at [41]. Similarly, the Shorter Oxford English Dictionary (6th edition, 2007) defines unconscionable in its first meaning as "[s]howing no regard for conscience; not in accordance with what is right or reasonable". For the purposes of s 21(1) of the ACL, the conscience by reference to which the standard is to be evaluated is not the conscience of a person, or of an individual judge. Rather, it is a metaphor that embodies a construct of the values and norms of society that are to be derived from the text and structure of the legislation that go to inform standards of conscientious behaviour: see, Medibank at [239]. One issue that has attracted the attention of appellate courts is whether statutory unconscionable conduct must involve some level of moral obloquy. In Kobelt, Keane J at [119] stated that "the legislative choice of 'unconscionability' as the key statutory concept, rather than less morally freighted terms such as 'unjust', 'unfair' or 'unreasonable', confirms that the moral obloquy involved in the exploitation or victimisation that is characteristic of unconscionable conduct is also required for a finding of [statutory unconscionability]". The other Justices forming the majority did not express themselves in these terms. Kiefel CJ and Bell J in their joint judgment at [60] referred with apparent approval to the approach of the Full Court, under which moral obloquy had a role to play, but was not a substitute for the statutory words. Under this approach it was relevant that the respondent, Mr Kobelt, had been held to have acted with a degree of good faith, and not dishonesty, to which the Full Court had correctly had regard. Gageler J at [91]-[92] retreated from his Honour's use of the language of "high level of moral obloquy" in Paciocco HCA at [188], but explained that what he meant to convey by the use of that description was that what was required was "conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience." And at [88] and [90], Gageler J referred to the gravity of conduct that is associated with the term unconscionable, citing the reasons of Bryson J in Burt v Australia and New Zealand Banking Group Ltd (1994) ATPR (Digest) 46-123 at 53,598, who stated, "[u]nconscionability is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person's legal rights". 662 For my purposes, the question whether unconscionable conduct must involve moral obloquy has been resolved by the Full Courts in Paciocco FCAFC, Kojic, Colin R Price, and Medibank. The text of s 21(1) of the ACL should not be substituted by judicial formulations that are directed to developing the organising principles and the conceptual boundaries of unconscionable conduct. References to conduct involving a high degree of moral obloquy as a description of unconscionable conduct are a gloss on the statutory text: Medibank at [240]. However, as Keane J in Kobelt at [118] and Allsop CJ in Paciocco at [261] suggest, the reference to moral obloquy may serve to differentiate conduct that is truly unconscionable from conduct that is of a lesser order such as being unjust, or unfair. Gageler J expressed much the same idea in Kobelt at [92], although as I have noted, preferring to eschew the term moral obloquy. And in Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15; 329 FLR 149 (Ipstar), Leeming JA at [277]-[278] made a similar point in terms endorsed by Beach J in Medibank at [242]. In this sense, moral obloquy may have a role to play, but as the authorities emphasise, the statutory text refers to conduct that is unconscionable. In Paciocco FCAFC at [262], Allsop CJ explained - The task involved is not the choice of synonyms; rather, it is to identify and apply the values and norms that Parliament must be taken to have considered relevant to the assessment of unconscionability: being the values and norms from the text and structure of the Act, and from the context of the provision. 663 In Medibank, Beach J at [240] adopted the analysis of Allsop CJ in Paciocco FCAFC and at [241] stated that "[a]t most, the statutory concept of unconscionable may accommodate a flavour of moral obloquy, but it is to divert the relevant normative enquiry to specifically seek to identify its existence or to clothe the relevant conduct with such a conclusory label". 664 A related issue is the extent to which an alleged contravener's state of mind is relevant to whether conduct is to be characterised as unconscionable. In this case, senior counsel for the ACCC clarified in final address that the ACCC did not submit that Jayco Corp consciously shut the Consumers out from their alleged rights under the ACL. Rather, the ACCC's case was that the shutting out, or obstruction, of the Consumers' rights under the ACL was the effect of what Jayco Corp did, and that the community would require of a corporation of its nature that it be aware of, informed by, and observant of the Consumers' rights embedded in the ACL. 665 While an alleged contravener's subjective state of mind may be relevant, the enquiry to determine whether a person engaged in statutory unconscionable conduct is necessarily broader. A broader, objective focus is dictated by the statute itself, which requires an assessment of whether the alleged contravener's conduct was, in all the circumstances, unconscionable. As stated by Keane J in Kobelt at [120], in considering the corresponding statutory norm in s 12CB of the Australian Securities and Investments Commission Act, the "ultimate issue under the statute is whether the conduct in question is rightly to be characterised as unconscionable". The other majority Justices in Kobelt commented on the relevance of an alleged contravener's subjective state of mind to that ultimate objective assessment. Kiefel CJ and Bell J stated at [59] that it may be accepted that conduct may be unconscionable in circumstances that do not involve dishonesty, although that was not to say that an absence of dishonesty, or other moral taint, was not a material consideration in determining the ultimate objective assessment. Further and as I have stated above, their Honours at [60] referred with approval to the approach of the Full Court below, which had considered that it was relevant that the respondent, Mr Kobelt, had been held to have acted with a degree of good faith, and not dishonesty. Separately, Gageler J at [91], in retreating from his Honour's earlier use of the language of "high level of moral obloquy" in Paciocco HCA at [188], stated that this terminology had "the potential to be misleading to the extent that it might be taken to suggest a requirement for conscious wrongdoing", which was not contained in the statutory proscription. 666 In the earlier decision in Medibank, the Full Court considered the question of the relevance of an alleged contravener's subjective state of mind. In that case, Beach J at [247], with whom Perram J and Murphy J agreed, stated - … statutory unconscionability does not require only focusing on Medibank's or its officers' or employees' state of mind, whether actual intention or knowledge or what it ought to have known. It is a broader concept requiring an 'objective value judgment on behaviour' (cf Cobbe v Yeoman's Row Management Ltd [2008] UKHL 55; [2008] 4 All ER 713 at [92] per Lord Walker of Gestingthorpe). But the subjective state of mind of the alleged contravener whether actual or constructive is relevant to the broader sense. Although I am concerned with a normative notion of conscience, Medibank's state of mind is relevant. 667 In the speech of Lord Walker in Cobbe referred to by Beach J in that passage, his Lordship considered the role of unconscionability as a unifying element in establishing a proprietary estoppel under English law, and stated at [92] that the term unconscionable was "being used (as in my opinion it should always be used) as an objective value judgment on behaviour (regardless of the state of mind of the individual in question)." 668 However, as the Full Court held in Medibank, for the purposes of statutory unconscionable conduct, an objective evaluation may include consideration of the state of mind of the alleged contravener, where it is relevant to determining whether the impugned conduct is to be characterised as unconscionable. Section 22(2)(l) of the ACL directs attention to the extent to which the supplier and the customer acted in good faith. The leading feature of Lux that rendered the contraveners' conduct unconscionable was the deceptive ruse that was employed to obtain entry to the consumers' homes for the purposes of attempting to sell vacuum cleaners, and that intentional deception was part of the circumstances that fell to be evaluated. And as I have mentioned above, in Kobelt, Kiefel CJ and Bell J held that the Full Court had been correct to take account of the findings that Mr Kobelt had acted with a degree of good faith, and not dishonesty, as among the circumstances to which it was necessary to have regard. Moreover, morally neutral features of an alleged contravener's state of mind, such as knowledge, may be relevant to determining whether conduct with that knowledge is objectively to be characterised as unconscionable. 669 Where the alleged contravener is a corporation, questions of attribution of conduct, and attribution of knowledge or some other state of mind, will usually arise. Section 139B of the Competition and Consumer Act provides for statutory rules of attribution, which supplement but do not replace general principles of attribution: Kojic at [64] (Allsop CJ) and [109] (Edelman J). Under general principles, in the absence of statutory support it is generally not permissible for the purposes of attribution of a state of mind to aggregate the knowledge or other states of mind of different agents of a corporation: see, Kojic at [89]-[149] (Edelman J, Allsop CJ at [31] and [62] generally agreeing). However, there may be exceptions to such a generalised statement, which turn on the particular statutory context in which the question for determination arises: Kojic at [66] (Allsop CJ), and see also [81]-[83] (Besanko J). In relation to the conduct that is proscribed by s 21 of the ACL, in Kojic Edelman J at [112] addressed the question of aggregation of knowledge for the purposes of the cognate provisions of s 51AB and s 51AC of the Trade Practices Act, as formerly in force, stating - … It is not easy to see how a corporation, which can only act through natural persons, can engage in unconscionable conduct when none of those persons acts unconscionably. Similar reasoning has led courts to reject submissions that a corporation has acted fraudulently where no individual has done so (in instances of deceit) and that a corporation has acted contumeliously where no individual has done so (in cases of exemplary damages). 670 The state of knowledge or other state of mind to be attributed to a corporation will usually be material to the question whether conduct that is impugned is to be characterised as unconscionable, and Lux, Kojic, and Medibank were instances where the state of mind to be attributed to a corporation was decisive to the result. But the focus of s 21 remains whether the conduct of the person (the corporation) was in all the circumstances unconscionable. 671 Returning to the present proceeding, in light of the principles referred to at [664] to [670] above, the premise of the ACCC's unconscionable conduct case against Jayco Corp may be accepted at a general level. That is, Jayco Corp could have, objectively, engaged in conduct that was, in all the circumstances, unconscionable because of its effect of obstructing the Consumers' rights under the ACL, despite Jayco Corp not having consciously, or subjectively, intended to do so. Nonetheless, the subjective state of mind to be attributed to Jayco Corp, including its motive for engaging in conduct alleged to have unconscionably obstructed those rights, and whether it acted in good faith, remain relevant to that ultimate objective assessment. 672 Section 21(4)(a) of the ACL makes explicit that the statutory conception of unconscionable conduct is not confined to that developed by the unwritten law: Kobelt at [83], [89] (Gageler J); Paciocco FCAFC at [283]. However, the values and norms developed by the unwritten law, both common law and equity, have a significant part to play in informing the statutory notion of conscience: Paciocco FCAFC at [270]-[284]. The statutory notion of conscience is also informed by the values that are embedded in other statutory provisions that regulate the relevant trading or commercial activity: Lux at [5], [23], [71]; Paciocco FCAFC at [302]. And the statutory notion of conscience is permeated with acceptable and accepted community values that are explicitly or implicitly recognised by the statute. 673 In the context of the supply in trade or commerce of goods and services to consumers, dealing in good conscience involves dealing with fairness and in good faith, and not engaging in trickery or sharp practice: Kobelt at [14] (Kiefel CJ and Bell J), citing Paciocco FCAFC at [296]. In order that conduct be characterised as unconscionable it is not necessary that there be circumstances that involve dishonesty, but that is not to say that the absence of dishonesty or moral taint would not be material: Kobelt at [59] (Kiefel CJ and Bell J). To act in good conscience in the course of trade or commerce in connection with the supply of goods, a person is not required to act in a disinterested or altruistic way, or required to act in the interests of others: Kobelt at [75] (Kiefel CJ and Bell J), and at [117] (Keane J). That would be a standard of conduct that equity would require of a fiduciary. And in determining what amounts to unconscionable conduct it is necessary to respect the legal policy that supports certainty in commerce, and a bargain freely and fairly made: Kobelt at [50] (Kiefel CJ and Bell J); Paciocco FCAFC at [297] (Allsop CJ). 674 In Kojic, Allsop CJ at [58] stated that as the standard of unconscionability is applied, courts will develop principles and legally relevant considerations that will give comfortable form to fact situations. The Chief Justice drew a parallel to the development in the case law applying the Contracts Review Act 1980 (NSW), which had given structure and content to the legal standards of indeterminate reference contained in that legislation. One should be mindful of course that observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law: Teubner v Humble [1963] HCA 11; 108 CLR 491 at 503 (Windeyer J). However, one of the characteristics of our legal system is that legal principles, including the organising principles for the application of statutory provisions, are developed through decided cases, and that "it is the insight of the common law that wisdom can be drawn from previous examination of similar problems": Scott v Copenhagen Reinsurance Co (UK) Ltd [2003] 2 All ER (Comm) 190 at [33] (Rix LJ). The common law in particular develops principles incrementally: Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [73] (McHugh J); Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [93]-[94] (McHugh J). There have, at times, been difficulties in expressing unifying principles of common law that allow the ready solution of novel problems: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [53] (the Court). Equity, however, functions differently, because equity "involves the application of doctrines themselves sufficiently comprehensive to meet novel cases": Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [57] (Gummow J). The identification of the organising principles for the application of a statutory provision of indeterminate reference does not involve the common law technique of development by increments. Rather, like an equitable doctrine, the standard is established, albeit by the statute, which is then given form by the articulation of principles as the statutory standard is applied to fact situations using the judicial technique described in Jenyns at 118-119. 675 With these considerations in mind, it is possible to identify some findings on statutory unconscionability made in some leading cases decided at the appellate level as being illustrative of the type of conduct that has, or has not, been held to be unconscionable. 676 In Lux, the Full Court held that a retailer acted unconscionably in the sale of vacuum cleaners by direct salesmen to three elderly women in their own homes. The Full Court held that the retailer engaged in a deceptive ruse whereby the salesmen arranged to attend the women's homes under the guise of conducting a free maintenance check of their existing vacuum cleaner, when in reality the purpose of their visit was to convince the women of an apparent need to replace their vacuum cleaner, and to sell them a new vacuum cleaner. 677 In Paciocco HCA, a majority of the High Court held that a bank did not act unconscionably in entering into and implementing contractual terms that entitled the bank to charge late payment fees to customers who failed to make the minimum monthly payment on their credit card accounts. 678 In Kojic, the Full Court held that a bank did not act unconscionably in facilitating a property development venture in circumstances involving the bank taking security over the property to be developed, which security extended beyond the bank's contribution to its purchase price to also cover all present and future indebtedness to the bank of a corporate vehicle involved in the venture. Allsop CJ at [60] found that the facts bespoke an entire absence of predation, of trickery, of any lack of honesty, of sharp practice, of vulnerability, of known mistake, of weakness, of a lack of good faith, of disability, or of any of the considerations in the relevant provision of the Trade Practices Act. 679 In Ipstar, the New South Wales Court of Appeal held that a wholesale supplier of broadband equipment and satellite bandwidth services acted unconscionably in its dealings with its customer, an internet service provider. The wholesale supplier had imposed a price increase on that customer, and not its other customers, by reference to its own exposure to statutory warranty claims, while concurrently refusing to pay any of those claims despite considering some of them to be valid. 680 In Colin R Price, the Full Court dismissed an appeal from a finding of unconscionable conduct in contravention of the Trade Practices Act. The Full Court upheld the primary judge's finding that it was unconscionable for the trustee of a property development unit trust to procure and rely upon a payment authority from one unit holding entity. Parties that were involved in the property development venture had induced a man whom they knew to be suffering from extreme financial and emotion stress to execute, on behalf of a unit holding entity which he controlled, an agreement that had the effect of unfairly depriving that entity of its interest in the proceeds of the project to cover cost overruns which affected all unit holders (see, [63]-[71]). 681 In Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd [2017] FCAFC 190, the Full Court held that the respondent, which was the franchisor of Pizza Hut restaurants in Australia, did not engage in unconscionable conduct towards its franchisees in contravention of s 21 of the ACL. The Full Court held that the respondent's decision to exercise its contractual power to set maximum prices under the franchise agreement to implement a low cost pizza "value strategy" was made in good faith, reasonably and not unconscionably, whether it was the right or wrong business strategy (see, [286]-[298]). 682 In Medibank, the Full Court held that a private health insurer did not act unconscionability in terminating its agreements with various diagnostic service providers without notifying its members, with the consequence that some members faced additional out of pocket expenses. The Full Court found that the insurer was faithful to the bargain that it struck with its members, by meeting its detailed contractual and legislative obligations, and that it did not act inconsistently with industry practice in terms of communicating with its members. Beach J at [353], with whom Perram J and Murphy J agreed, found that while the insurer acted harshly and unfairly, that was not enough to establish statutory unconscionability. 683 In Kobelt, a majority of the High Court held that the respondent, who operated a "book-up" system of credit to customers in the Anangu Pitjantjatjara Yankunytjatjara Lands, did not act unconscionably. The book-up system involved the respondent's customers, who were overwhelmingly indigenous Australians lacking in financial literacy and living in remote communities, authorising the respondent to withdraw funds from their bank accounts to reduce their debt, in return for the supply of goods between pay days. The majority Justices found that the book-up system was not objectively contrary to the interests of the customers (at [77], Kiefel CJ and Bell J) or had been a matter of choice by the customers (at [107], Gageler J), and that the respondent had not sought to exploit the customers for his financial advantage (at [125], Keane J).
The ACCC's pleaded claims of unconscionable conduct 684 By [4] to [9] of its concise statement, the ACCC made the following allegations - 4. Jayco dealers have separate legal obligations under the Australian Consumer Law (ACL) to comply with consumer guarantees relating to the supply of goods. However, an ordinary consumer seeking a remedy for a defective RV is unlikely to understand the distinction between the consumer guarantees under the ACL and the Jayco Warranty. At least in the case of the Consumers, the practice of Jayco Corp and the relevant Jayco dealers was to deal with consumer complaints as part of the Jayco Warranty process and therefore a matter for Jacyo Corp's discretion. Jayco dealers also sought the approval of Jayco Corp for the making of refunds, which was a remedy available to the Consumers under the ACL. 5. As a consequence, Jayco Corp had express control over the replacement or repair of an RV under the Jayco Warranty and effective control over whether the relevant Jayco dealer complied with its statutory obligation to provide a replacement or refund. 6. Jayco dealers made lengthy, repeated and unsuccessful attempts to repair the defects in the Consumers' RVs. Each of the Consumers made multiple requests for a replacement or refund directly to Jayco Corp, as well as to the Jayco dealers who supplied the RVs. Every request for a refund or replacement was denied and the Consumers were only offered further attempts at repairs. 7. The Consumers were frustrated and distressed by the situation. Each had made a significant purchase intended to be used for holidays and enjoyment with their families. This was impossible because the RVs that Jayco Corp had manufactured were defective. In some cases, their holidays were ruined and they suffered significant discomfort. 8. Jayco Corp knew of both the manufacturing defects and the lengthy and unsuccessful repair attempts. It knew, or ought to have known, of the Consumers' distress. Nevertheless, Jayco Corp refused to exercise its discretion under the Jayco Warranty to provide a replacement RV, pressed the position that the only remedy available to the Consumers was another attempt at a repair (regardless of the number of unsuccessful previous attempts) and unfairly obstructed the Consumers from obtaining a refund or replacement RV from the Jayco dealer (to which they were entitled under the ACL). 9. This conduct by Jayco Corp was unconscionable. In addition, in the course of this conduct, Jayco Corp made false and misleading representations to the Consumers as to their entitlement to a remedy and its own role in relation to the Consumers' rights or ability to obtain a replacement or refund. 685 By [30] of its concise statement, the ACCC alleged that the conduct of Jayco Corp alleged in [8] was unconscionable in contravention of s 21(1) of the ACL in all of the circumstances including - 30.1 Jayco Corp produces and publishes brochures that convey that the RVs it manufactures are of good quality; 30.2 the defects in the RVs became apparent immediately, or almost immediately, upon receipt by each of the Consumers and could not reasonably have been attributable to anything other than defective manufacture by Jayco Corp; 30.3 Jayco Corp knew that each of the Consumers had suffered for a lengthy period of time due to the defects; 30.4 Jayco Corp knew that the RVs were not functioning, and had never functioned, properly; 30.5 Jayco Corp knew that despite many repair attempts, the defects had not been fixed; 30.6 the Consumers were entitled to the remedy of a refund or replacement in accordance with the consumer guarantee provisions of the ACL because the defects could not be repaired or was a major failure; 30.7 the Consumers had come directly to Jayco Corp and sought Jayco Corp's assistance; 30.8 each of the Consumers was in a very weak bargaining position compared to Jayco Corp; 30.9 Jayco Corp did not act in good faith by insisting that the Consumers were only entitled to further attempts at repairs, refusing to exercise its discretion under the Jayco Warranty to assist the Consumers and obstructing the Consumers from obtaining a refund or replacement from the dealer. 686 Of the specific matters identified in s 22(1) of the ACL to which the court must have regard if relevant, there is reference in paragraph [30.8] of the ACCC's concise statement to the relative bargaining position of Jayco Corp and the consumers (s 22(1)(a)), and in paragraph [30.9] it is alleged that Jayco Corp did not act in good faith (s 22(1)(l)).
The submissions of the ACCC 687 The ACCC submitted that Jayco Corp's conduct towards each Consumer, considered in the context of all the relevant circumstances, and as a whole, was sufficiently divergent from community standards of acceptable commercial business practices that it objectively answered the description of unconscionable conduct within the meaning, and for the purpose of s 21 of the ACL. The subordinate elements of that submission may be summarised as follows. 688 First, the RVs of each of the four Consumers contained manufacturing defects for which Jayco Corp, as manufacturer, was responsible. 689 Second, under the ACL, each of the four Consumers was entitled to reject his or her RV, and was entitled as against the dealer who supplied the RV to elect to receive either a refund of the purchase price, or a replacement RV. 690 Third, each Consumer's request for a refund or replacement RV was dealt with as a practical reality by Jayco Corp insisting upon its right to repair the RV under the Jayco warranty and thereby refusing to provide a refund or replacement, including in the exercise of its discretion under the Jayco warranty to provide a replacement RV. The ACCC submitted that this had the consequence that Jayco Corp effectively controlled the process of addressing the Consumers' concerns, and obstructed the Consumers from obtaining a refund or replacement from the relevant dealer. The ACCC submitted that this conduct should be characterised as unconscionable. 691 Fourth, the ACCC relied on the false or misleading representations that it alleged were made by Jayco Corp to the Consumers about their entitlements to a remedy, and Jayco Corp's role in the process. I pause to note that I have rejected all but one of those claims. The one claim that I have upheld relates to the statements in Mr Manning's first email of 5 May 2015 to Consumer RH (see [645]-[652]). 692 Fifth, in relation to all the circumstances to which the Court should have regard, the ACCC relied on the following - (1) Jayco Corp represented to the Consumers that its RVs were of good quality; (2) the Consumers were entitled to the remedy of a refund or replacement from their selling dealer in accordance with the consumer guarantee provisions of the ACL; (3) the Consumers had approached Jayco Corp and sought its assistance to obtain refunds or replacements for their defective RVs, for which they had paid large amounts of money, and which had caused them significant distress and frustration (as Jayco Corp knew at the time); and (4) Jayco Corp insisted on repairing the RVs (and correlatively refused to exercise its discretion under the Jayco warranty to provide replacement RVs), and thereby effectively controlled how the dealers addressed the defects (by directing and instructing them to repair the RVs), and necessarily obstructed each Consumer from obtaining the refund or replacement from the dealer to which they were entitled. 693 As I have mentioned, in final addresses, including by way of reply, senior counsel for the ACCC clarified that the ACCC did not submit that there was conscious wrongdoing, or conscious bad faith on the part of Jayco Corp, or a consciousness by Jayco Corp that it was shutting the Consumers out from the exercise of their rights to reject their RVs under s 263(4) of the ACL, but that this was the effect of what Jayco Corp did. 694 The ACCC made submissions in relation to the circumstances of each Consumer, and Jayco Corp's refusal of requests for refunds or replacement RVs. The ACCC submitted that these circumstances arose in the context of the terms of the Jayco warranty, which included a provision allowing for Jayco Corp at its sole discretion to "either replace or repair the RV or the defective parts of the RV, or cause the RV or defective part of the RV to be replaced or repaired by a Jayco dealer or authorised repairer" (see [73] above). The ACCC submitted that the circumstances also arose in the context of the statutory right of a consumer under the ACL to reject goods, and the obligation of Jayco Corp to indemnify a dealer for a refund or replacement provided by the dealer to a customer in such circumstances. 695 As to Consumer RH, the ACCC relied on the problem with the roof mechanism, which it submitted multiple repair attempts had not resolved. It submitted that a reasonable consumer would not have purchased the RV in those circumstances, and that the RV was substantially unfit for purpose. The ACCC submitted that by refusing to exercise its discretion to provide a replacement under the Jayco warranty, by telling Consumer RH that the warranty was for repairs only, and that "Jayco Corp makes the decisions, not Jayco Newcastle", when Jayco Corp refused Consumer RH's requests and insisted on repairing the RV, it necessarily and unfairly obstructed RH from exercising her rights under the ACL to obtain a refund, or a replacement RV from the dealer. 696 I must pause here to find that the ACCC's submission that Jayco Corp told Consumer RH that "Jayco Corp makes the decisions, not Jayco Newcastle" is not supported by the evidence, and that by its written submissions, the ACCC stripped these words from their correct context. The substance of the words was contained in the email exchange between Mr Manning and Central Coast Caravans on 11 May 2015, to which I referred at [565] above. Mr Manning referred to this email exchange in his affidavit. The context, as that email exchange indicates, was that it appeared to Mr Manning that Consumer RH had claimed that he had authorised a new roof for her RV as a warranty claim, when he had not done so, and he did not consider that the RV required a replacement roof. The full context of Mr Manning's statement is that he raised with Central Coast Caravans the possibility that Jayco Newcastle may have advised Consumer RH that a new roof was authorised, and Mr Manning was simply making the point to Central Coast Caravans that Jayco Corp was responsible for approving such claims under the Jayco warranty. 697 As to Consumer MO, the ACCC relied on the various defects in the RV and submitted that by 7 August 2014 the defects had not been rectified within a reasonable time, the RV was not fit for purpose, and a reasonable consumer would not have purchased the RV had he or she known of the defects. In addition, the ACCC submitted that given the observation that the RV was not as well put together as others at the dealership, the Court should infer that the RV did not match the demonstration model shown to Consumer MO at the time of purchase. The ACCC submitted that by instructing the dealer to repair the RV and by telling Consumer MO that the RV would be repaired and that he had to give Jayco Corp a chance to fix the RV, and by necessarily refusing to exercise its discretion to provide a replacement RV under the Jayco warranty, Jayco Corp unfairly obstructed Consumer MO from exercising his rights under the ACL to obtain a refund or replacement from the dealer, Jayco Sydney. 698 As to Consumer JT, the ACCC relied on the leaking that had first presented a few days after delivery in September 2015, which it submitted had not been repaired within a reasonable time, and which was still present on 19 January 2016. The ACCC submitted that, as at that date, Jayco Corp did not have a solution to the cause of the leaking, and that in this circumstance it denied Consumer JT's request for a refund or replacement RV, and in response to a request from Jayco Sydney that it advise on a replacement, it insisted on repairing the RV, and instructed Jayco Sydney to order replacement parts to undertake the repairs. The ACCC submitted that Jayco Sydney acted on the advice and instructions of Jayco Corp, and in those circumstances there was no prospect of Consumer JT obtaining a refund or replacement RV in circumstances where he was entitled to do so because a reasonable consumer would not have purchased the RV, and it departed in significant respects from the demonstration model shown to Consumer JT at the time of purchase. 699 As to Consumer TB, the ACCC submitted that by no later than August 2014, the defects affecting the RV had not been remedied within a reasonable period of time, it was not fit for purpose, and a reasonable consumer in Consumer TB's position would not have purchased the RV had he or she known that it would have leaking issues from the time of delivery, and that those issues would still be affecting the RV months later despite a number of repair attempts. The ACCC submitted that the leaks occurred despite representations being made to Consumer TB at the time of purchase that "the benefit of a hard lid was for weather protection". The ACCC submitted that as well as leaks, Consumer TB's RV was affected by several other defects including delaminating walls. The ACCC submitted that by instructing the dealer to repair the RV, and by telling Consumer TB that the RV would be repaired and that he had to give Jayco Corp a chance to fix the RV, and thereby necessarily refusing to exercise its discretion to provide a replacement under the Jayco warranty, Jayco Corp unfairly obstructed Consumer TB from exercising his rights under the ACL to obtain a refund or replacement RV from the dealer, Jayco Sydney. 700 The ACCC submitted that Jayco Corp's conduct in responding to the Consumers' requests for refunds or replacement RVs occurred through the prism of its own commercial interests and perception of its and its dealers' legal responsibilities, without proper consideration of the rights of the Consumers under the Jayco warranty or the ACL, and without regard to the distress and frustration of the Consumers, of which it was aware. The ACCC alleged that Jayco Corp's failure to give proper consideration to the Consumers' rights to obtain a refund or replacement constituted conduct falling below expected and acceptable standards of corporate behaviour. It submitted that knowing of the defects and the circumstances affecting the Consumers, the way in which Jayco Corp treated each Consumer was not only unfair, it sufficiently departed from accepted community standards to warrant the characterisation of conduct against conscience. 701 The ACCC submitted that Jayco Corp did have a role in deciding, and an ability, to provide a replacement or refund, but told the Consumers otherwise, and failed to assist them in respect of their requests for replacements and refunds when assistance was sought.
The submissions of Jayco Corp 702 Jayco Corp relied on the ACCC's acceptance that it had to demonstrate that the RVs acquired by the four Consumers were the subject of major failures to comply with the relevant statutory guarantees, and submitted that in no instance was there a major failure. Those submissions fall away in relation to Consumer MO, Consumer JT and Consumer TB, because I have determined in relation to those Consumers that there was a major failure to comply with a relevant statutory guarantee. 703 As to whether, on the assumption that there were major failures, Jayco Corp engaged in unconscionable conduct in relation to the Consumers, Jayco Corp addressed the three elements of the ACCC's allegation of unconscionable conduct in paragraph [8] of its concise statement (see [684] above), namely that Jayco Corp - (1) refused to exercise its discretion under the Jayco warranty to provide a replacement RV; (2) pressed the position that the only remedy available to the Consumers was another attempt at a repair, regardless of the number of unsuccessful previous attempts; and (3) unfairly obstructed the Consumers from obtaining a refund or replacement RV from the relevant Jayco dealer, to which they were entitled under the ACL. 704 Jayco Corp submitted that there was no meaningful distinction between the first two elements of [8] of the ACCC's concise statement, and that they were untenable. In relation to the matters in s 22 of the ACL to which regard must be had where relevant, Jayco Corp submitted that only two were engaged by the allegations made by the ACCC in its concise statement, namely that each of the four Consumers was in a very weak bargaining position compared to Jayco Corp (s 22(1)(a)), and that Jayco Corp did not act in good faith (s 22(1)(l)). Jayco Corp submitted that the evidence was not probative of their being any disparity in bargaining position. Jayco Corp submitted that each of the Consumers had recourse to New South Wales Fair Trading, against the dealers as suppliers, and that three of the four Consumers pursued that avenue. In the alternative, Jayco Corp relied on the statement of Keane J in Paciocco HCA at [293] that "[t]he existence of a disparity in bargaining power, which is an all-pervading feature of a capitalist economy, does not establish that the party which enjoys the superior power acts unconscionably by exercising it." 705 As to the ACCC's allegation of lack of good faith at [30.9] of its concise statement, Jayco Corp submitted that it lacked articulation and was circular because it did no more than pick up the three elements of the ACCC's case that it had alleged at paragraph [8] of its concise statement. Jayco Corp submitted that accordingly, the allegation of absence of good faith lacked substance as an independent ground on which to characterise its conduct as unconscionable. Jayco Corp further submitted that there was no allegation that the terms of the Jayco warranty were unfair, and there was no evidence that Jayco Corp failed to exercise its discretion under the Jayco warranty to replace an RV in the pursuit of some dishonest, capricious, arbitrary, or extraneous purpose. 706 Jayco Corp submitted that, self-evidently, it was not unconscionable for the purposes of s 21 of the ACL for Jayco Corp to have simply made an error about whether a failure to comply with a statutory consumer guarantee was a major failure. It followed that it could not be unconscionable to form and maintain the view that a repair was an appropriate remedy in accordance with the terms of the warranty. Nor was it unconscionable for Jayco Corp to require that claims be investigated. Jayco Corp pointed to the terms of its warranty that I have set out at [73] above, which are engaged if any part of the RV is proven to be defective. 707 Moreover, at a more general level Jayco Corp submitted that there are no criteria in s 22 of the ACL that make it unconscionable for a manufacturer to have a lawful warranty process that has the effect of creating a commercial incentive for suppliers to give priority to a manufacturer's warranty process rather than their direct legal obligations under the ACL. Jayco Corp submitted that most manufacturers of products which are sold in Australia offer express warranties on their products, and that s 59 of the ACL recognises this very common phenomenon. Jayco Corp submitted that to attack this commonplace phenomenon using the law of unconscionability under the ACL was "perverse and bizarre" because the ACL, which was the very law which set up and recognised this structure of obligations, was being used to subvert it. Jayco Corp submitted that the absurdity of the ACCC's case was illustrated if one considered that, on its logic, the more generous Jayco Corp's warranty terms or practice were, the more likely it was financially expedient for suppliers to confine themselves to the warranty in responding to Consumers' claims, and therefore the more likely it became that Jayco Corp would act unconscionably. Jayco Corp submitted that this contradicted the key assumptions that underlie the structure of the consumer guarantee provisions of the ACL, namely that - (1) manufacturers may offer express contractual warranties; and (2) suppliers are subject to compulsory statutory guarantees. 708 Jayco Corp submitted that the two sets of obligations overlapped, and must operate harmoniously. Jayco Corp submitted that it could not be unconscionable for the three interested parties: manufacturers, suppliers, and consumers, to interact in the normal way when endeavouring to resolve defect claims. Jayco Corp submitted that in any event the evidence showed that the Consumers were not obstructed by Jayco Corp in any way from obtaining any relief under the ACL to which they may have been entitled. 709 Jayco Corp submitted that the ACCC made no allegation that it had asserted any contractual or other control, or otherwise exercised any undue influence or acted unconscionably towards the suppliers, namely Jayco Sydney and Jayco Newcastle. Jayco Corp submitted that the ACCC's case rose no higher than alleging circumstances where it was financially expedient for suppliers to respond to claims by consumers by invoking the manufacturer's warranty on their behalf. 710 Generally, Jayco Corp submitted that its treatment of each of the four Consumers was conscientious, urgent, and directed towards solving their problems. Jayco Corp submitted that its general practices in dealing with claims under the Jayco warranty, and the terms of the Jayco warranty, were entirely consistent with generally accepted community values. 711 By its supplementary written submissions, Jayco Corp submitted that in some respects, the ACCC's case as closed went beyond its pleadings. At [97] above, I have held that to be so in relation to the ACCC's reliance on s 259(2) of the ACL. Otherwise, the submissions of Jayco Corp about the scope of the ACCC's pleaded case tended to escalate what were matters of obvious contextual background, emphasis, nuance, and degree, into significant issues that had to be specifically pleaded. I do not find it necessary to consider further those submissions.
The matrix of statutory rights and obligations 712 Before returning to consider further the evidence, it is necessary to make some observations about the statutory context of the ACCC's claims of unconscionable conduct which, as I mentioned at [12] above, is significant. 713 From time to time, the High Court has spoken about the desire for coherence of legal principle in the development of the common law, the concern being for legal principles to operate in a consistent way: see, eg, Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [122]-[126] (McHugh J); Hill v Van Erp [1997] HCA 9; 188 CLR 159 at 231 (Gummow J); Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 373 ALR 1 at [14], [19] (Kiefel CJ, Bell and Keane JJ). Coherence is also sought in the interpretation of legislative instruments, for they must be construed on the prima facie basis that their provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70] (McHugh, Gummow, Kirby and Hayne JJ). Therefore, in relation to determining whether conduct is unconscionable for the purposes of s 21 of the ACL, it is relevant to consider other laws, including other provisions of the ACL: Lux at [5]. 714 The following features of the ACL are relevant to the evaluation of the conduct of Jayco Corp alleged by the ACCC. In some of the provisions to which I refer, the ACL uses the defined term "affected person", which includes a consumer who acquires goods (see [53] above). For the sake of simplicity, I shall refer below to such persons as consumers. 715 First, and as I have already mentioned, the liabilities respectively of a supplier and a manufacturer of goods under the ACL have different content. Without being exhaustive, the following differences are material - (1) in the case of a failure to comply with the statutory guarantees of acceptable quality [s 54], fitness for a disclosed purpose [s 55], or non-compliance with description [s 56], only the supplier is directly liable to a consumer under s 261 to remedy the failure by repairing the goods, replacing the goods, or giving a refund; (2) in the case of a failure to comply with a statutory guarantee that cannot be remedied or which is a major failure, only the supplier is liable under s 263(4) to refund the purchase price, or to replace the goods at the election of the consumer; (3) a supplier is not liable to a consumer to remedy a manufacturer's non-compliance with the statutory guarantee under s 59(1) that an express warranty of a manufacturer will be complied with [s 259(1)]; (4) on the other hand, subject to some qualifications that are set out in s 271, a manufacturer is liable to a consumer in damages - (a) for non-compliance with the statutory guarantee of acceptable quality under s 54 [s 271(1)]; (b) for non-compliance with the statutory guarantee of correspondence with description, where the description was applied by or on behalf of, or with the consent of, the manufacturer [s 271(3)]; and (c) for a failure to comply with the statutory guarantee under s 59(1) that the manufacturer will comply with an express warranty given by it [s 271(5)]; and (5) a consumer's entitlement to commence a proceeding for damages against a manufacturer is qualified by the condition that where a consumer has, in accordance with an express warranty, required the manufacturer to remedy a failure to comply with a relevant guarantee, the manufacturer must have refused or failed within a reasonable time to remedy the failure to comply with the relevant statutory guarantee [s 271(6)]. 716 There was no allegation by the ACCC that, in the context of s 271(6) of the ACL, Jayco Corp had acted unconscionably in refusing or failing within a reasonable time to remedy a failure to comply with any of the relevant consumer guarantees. It was not put squarely to any of the Jayco Corp witnesses that he had acted in bad faith in the consideration of the claims of the four Consumers, and as I have mentioned at [693] above, the ACCC did not present its case in final submissions as one of conscious wrongdoing by Jayco Corp. 717 Second, apart from its direct liability to a consumer in damages, a manufacturer also has a statutory liability under s 274 of the ACL, to which I referred at [56] above, to indemnify a supplier if the supplier is liable to a consumer in damages, or incurs costs in respect of a failure to comply with one of the statutory guarantees to which s 274 applies, which relevantly include the guarantee of acceptable quality under s 54. The liability under s 274 is a liability to indemnify the supplier for damages payable, or costs incurred by the supplier, and is not in terms a liability to reimburse the retail price, or to replace the goods. Pursuant to s 276(1), and subject to s 276A, this statutory liability cannot be excluded, but in cases where there is a contract for the sale of goods made between the supplier and the manufacturer, it will sit with any other rights that a supplier has against a manufacturer, including for breach of any express terms, or any conditions or warranties that are implied by statute, or general law, into the contractual arrangements between the supplier and the manufacturer. 718 Third, it follows from the terms of the statutory indemnity referred to above that the liability of a supplier to a consumer, and the liability of a manufacturer to a supplier, may not directly correspond. Let it be supposed that upon the rejection of goods by a consumer on account of a major failure, a supplier is liable to the consumer to refund the purchase price. The supplier may refund the purchase price to that consumer, and may then be able to repair the goods and re-sell them to another consumer. In that example, the manufacturer may not liable to the supplier for the purchase price, but may be liable for the costs incurred in repairing the goods, and for any loss on re-sale. 719 Fourth, the statutory guarantee in s 59(1) of the ACL that a manufacturer will comply with an express warranty has significance, because it is a recognition that the obligations under a manufacturer's express warranty, and the entitlement of a consumer to enforce direct obligations under the ACL against the supplier or the manufacturer, may sit side by side. Further recognition of this feature of the matrix of obligations arising under the ACL is given by s 102 of the ACL, to which I referred at [31] above, which authorises the prescription by regulation of requirements relating to the form and content of non-statutory warranties against defects. 720 Relevant to this fourth point, I mention here that the ACCC submitted in support of its claim that Jayco Corp engaged in conduct that was unconscionable by obstructing the Consumers from exercising their rights under the ACL, that the Jayco owner's handbook, while referring to rights under the ACL, did not specify the circumstances in which consumers would be entitled to a refund or replacement under the ACL, and did not specify against whom such rights were exercisable. The ACCC submitted that the handbook did not distinguish, at least adequately, the rights and obligations under the Jayco warranty from the consumers' rights under the ACL, and it did not make clear that the Jayco warranty could not, and could not be used to, prevent or obstruct consumers from exercising any right to obtain a refund or replacement from a Jayco dealer under the ACL. The ACCC submitted that the handbook conveyed an impression that the warranty had primacy over any rights that a consumer may have under the ACL in respect of "defects". 721 I do not accept the ACCC's submissions concerning the adequacy of references to the ACL in the owner's handbook. The operative terms of the Jayco warranty appear to be unremarkable for warranties of that type. Senior counsel for the ACCC accepted in submissions that manufacturers' warranties have always existed, and that the nature of the Jayco warranty was not out of the ordinary, and that at one level manufacturers' warranties are something which are of utility and benefit to consumers. The ACCC did not claim that the existence or operative terms of the Jayco warranty were the product of unconscionable conduct. And it was no part of the ACCC's case that the text of the Jayco warranty document did not comply with the requirements of reg 90 of the Competition and Consumer Regulations. As I stated at [69] to [71] above, the references to the ACL in the owner's handbook followed the prescription of the Competition and Consumer Regulations. In light of the regulatory prescription of the content of the warranty document in relation to its references to the ACL, the ACCC's submissions on this issue must be rejected. 722 Fifth, the ACL gives effect to any benefits that may be given by a manufacturer's warranty by making compliance with the warranty another statutory guarantee: s 59(1). The Jayco warranty appears to provide benefits to consumers that they do not enjoy under the ACL alone. The first benefit is some certainty of language. Without detracting from rights under the ACL, the operative section of the Jayco warranty states, subject to exclusions, but in reasonably plain terms, that all parts of the RV should be free from defects in material and workmanship for a period of 12 months from purchase, and provides for either repair or replacement at the discretion of Jayco Corp. The duration of the warranty of 12 months is certain. That formulation may be compared with the more elaborate provisions of the ACL that require value judgments, and which span different parts of the ACL, over many pages, in Schedule 2 of the Competition and Consumer Act. 723 A second benefit is that the Jayco warranty invites the consumer to engage it by making an appointment at any Jayco dealer or service agent. This is likely to be of advantage to those using an RV when travelling, so that they might exercise rights under the Jayco warranty through dealers or service agents throughout Australia. In contrast, the right under the ACL to require a supplier to remedy a failure to comply with a statutory guarantee may not be so easily exercised, or be of as much practical utility, particularly if a failure occurs while the consumer is travelling. And the liability of the manufacturer in damages may also be of less practical utility than a warranty to repair or replace through authorised service agents in the event of a breakdown. 724 A third benefit is that the existence of specific obligations of a manufacturer under a warranty, in addition to those rights exercisable by a consumer against the manufacturer under the ACL, may provide additional comfort to consumers who may not be fully informed about the financial state of affairs of a supplier, and who may be at risk in the event of the insolvency of a supplier. 725 The point of the above discussion is to place in context elements of the claims by the ACCC that Jayco Corp acted unconscionably by considering consumer claims through the lens of its obligations under the Jayco warranty.
How did Jayco Corp address requests for repairs, refunds and replacements? 726 I have summarised the core elements of the evidence concerning the ACCC's claim that the Consumers were entitled to reject the RVs, and to seek refunds or replacements. It is necessary to consider further some of the evidence about the manner in which Jayco Corp addressed consumer claims for repairs, refunds, and replacement RVs. That examination is necessary so that the dealings between Jayco Corp, the Jayco dealers, and the Consumers may be placed in context, as a consideration of all the circumstances for the purposes of s 21 of the ACL requires. 727 As I have mentioned at [103] to [108] above, Jayco Corp adduced evidence from current and former employees who were engaged in the assessment of its warranty claims: Mr Manning, Mr Rigby, Mr Austin, Mr Morgan, and Mr Murphy. Their evidence included evidence about Jayco Corp's general practices in the assessment of warranty claims. In addition, Jayco Corp called the dealer principals of Jayco Sydney and Jayco Newcastle: Mr Bilbija and Mr Charleson. They gave evidence about general practices from their perspective. 728 Jayco Corp employed a team of warranty, or "after sales", staff based in Dandenong. The team generally consisted of three customer service managers reporting to the customer relationship manager, who in turn reported to the national service manager, who at the times relevant to this proceeding was Mr Morgan. In turn, Mr Morgan reported to Mr Murphy. It was Mr Murphy's practice generally to speak to the warranty team every morning to ask how claims were sitting, whether any difficult claims had arisen, and how the team was progressing. In addition, Mr Austin, and later Mr Rigby, Mr Manning and Mr Morgan met weekly to discuss the progress of claims. 729 Mr Manning stated that as RVs were essentially hand-assembled products with a significant number of parts, he expected that from time to time items would require attention. He stated that it was not unusual to receive two to three warranty claims from a dealer for a new RV. 730 Mr Morgan stated that a significant proportion of enquiries to the after sales team related to requests from dealers and owners for authorisation for the repair of owners' RVs, replacement of RVs, and requests for refunds of the purchase price. Mr Morgan stated that the requests from dealers and owners were generally framed as warranty claims, or as claims under the ACL. 731 There was no formal policy, such as any written policy, followed by Jayco Corp in dealing with warranty claims. With reference to the terms of the Jayco warranty that provided for a discretion to replace an RV, or a defective part of an RV, Mr Morgan stated that there was no directive, requirement, or policy within Jayco Corp that repairs had to be pushed to dealers or owners in preference to replacements. Mr Morgan stated that the practice was to assess every case on its merits. Mr Austin gave evidence to similar effect. He stated that that he did not believe that there was any formal or informal policy to prefer repairs to refunds or replacements, and that in his experience, each RV and circumstance was assessed on a case-by-case basis. However, Mr Austin stated that it was logical as a general position that if something could be easily repaired, "we would repair it". Mr Austin also stated that it was his understanding that Jayco Corp was entitled under the terms of its warranty to repair the RV if that was possible. Mr Austin also referred to consumers being unaware of how easily issues can be resolved without resorting to a replacement RV, which could take weeks to rebuild and provide. 732 Mr Morgan stated that for claims other than automated claims, Jayco Corp required that the dealer or owner provide sufficient information in support of any claim under the warranty for a manufacturing defect. This generally took the form of photographs, copies of service records, an inspection report, details of where and how the RV had been stored and used, and any other relevant information and a quotation for repairs. Mr Morgan stated that in his view, this information was critical. 733 In instances where the dealer or repair agent was unsure of the cause of the problem, the scope of the repair, or whether the repair was covered under the warranty, and in cases where the cost of the repair exceeded the dealer's approved limits, the dealer would typically submit a request for warranty approval to Jayco Corp prior to undertaking the repairs. The Jayco Corp warranty team reviewed requests for approval. Once the warranty team determined to approve a request for warranty works, it became a warranty claim. When a dealer or service agent conducted repairs under warranty that were authorised, Jayco Corp paid the dealer or service agent for the labour, and usually supplied the parts. 734 Mr Austin stated that in almost all cases where approached by a consumer directly, he would refer the consumer to a local dealer or repair agent to have the problems or concerns with the RV assessed. He stated that he could not see the RV himself, so it was practically impossible to assess the RV otherwise. He stated that usually the dealer or agent would provide Jayco Corp with an explanation of the customer's concerns, the dealer or agent's technical assessment of any defects, photographs of the problem, their recommendations as to the best way to fix the problem, and their quotation for the repairs if appropriate. 735 Mr Manning's perspective was that the assessment of any warranty claim involved consideration of whether the customer was covered under the Jayco warranty, whether the problem was a manufacturing fault, whether the problem could be easily repaired, the cost of repair, and whether repair was the best solution, including having regard to the customer's history and experience with the RV. That assessment was guided by the information provided by the dealers, who were expected to provide relevant information, including a detailed quotation for repairs over $1,000. Mr Manning stated that it was his experience that customers tended to make warranty claims at the Jayco dealer from which the RV was purchased. In some instances, requests were made to Jayco Corp directly, in which case it was usual practice, as Mr Morgan had stated, to refer the consumer to a Jayco dealer where the issue could be assessed. 736 Mr Rigby stated that dealers sought information from Jayco Corp about the nature of an issue that was presented, the causes, what fixes or repairs might be available, and the likely cost. Mr Rigby stated that Jayco Corp handled a larger volume of repairs and services than each dealer, and had a research and development department which improved design and investigated and developed fixes for common faults as they arose. 737 Mr Murphy stated that Jayco Corp preferred the selling dealer to take care of the customer complaints, expecting that the dealer would inform Jayco Corp of the customer's concerns, assess the RV, provide recommendations, and act on Jayco Corp's behalf once it had told the dealer how it had decided to respond to the complaint. In most cases, the dealer would conduct the repairs that Jayco Corp had approved, pass on a rebuild that had been manufactured by Jayco Corp in Dandenong, or provide a replacement RV, for which Jayco Corp would reimburse the dealer. Jayco Corp gave dealers standing authority to conduct repairs under Warranty up to a cost of $1,000.
Jayco Corp witnesses' understanding the operation of the ACL 738 One of the issues on which the Jayco Corp witnesses gave evidence was their understanding of the operation of the ACL. The understanding displayed by each of them varied. Unsurprisingly, the degree of understanding presented by some of the witnesses was practical and incomplete. 739 Mr Murphy stated that he, along with other staff, had received regular training relating to the ACL, mostly from Jayco Corp's solicitors. Mr Murphy produced some PowerPoint slides from a presentation dated 5 February 2016. The slides referred to the statutory guarantees under the ACL, and noted that they could not be excluded. In relation to remedies, one of the slides stated as follows - • "Minor" failure (fixable) • Consumer may require the supplier (dealer) to remedy within a reasonable time OR • If refused/not done/not done promptly • consumer can remedy themselves and recover costs OR • consumer can reject the goods (refund or replacement) • "Major" failure (substantial) • Consumer can reject the goods (refund or replacement) OR • Consumer can recover compensation for reduction in value • Additionally - consumer can recover reasonably foreseeable loss and damage 740 Mr Murphy stated in cross-examination that he did not have a detailed understanding of the ACL, and that he had a greater knowledge of the Jayco warranty than the ACL. In particular, he stated that he had a limited understanding of what was a major failure for the purpose of the ACL. He gave evidence of his understanding of the difference between a major and minor "defect" under the ACL. He stated that something that was cosmetic or not affecting the use of the RV, or something that was easily repairable was likely to be a minor defect, unless it was a combination of a large number of minor issues, or a repeated minor issue that could not be properly fixed. Mr Murphy stated that a major defect would generally be something that prevented use of the RV for its intended purpose that was not easily and quickly rectifiable. Mr Murphy gave the example of a leak. He stated that a leak may be either a major or minor defect depending on the nature, location, and effect of the leak. He stated that any serious safety issue would likely be a major defect, although again, each case needed to be considered on its own merits. For example, the failure of tail or brake lights is a serious safety issue but was usually very easily repaired and was not a major defect. Mr Murphy accepted in cross-examination that if something was assessed as a minor defect (meaning something easily repaired), it would be Jayco Corp's practice to authorise repairs to be effected. 741 Mr Morgan gave evidence that he, along with other after sales staff, also undertook regular consumer law training that was delivered by Jayco Corp's solicitors. He produced a copy of what he described as some of the training materials, but there was no reference in those materials to the topic of the respective obligations of Jayco Corp and the dealers under the Jayco warranty or the ACL. Mr Morgan stated in his affidavit that his understanding of the operation of the ACL was that there was a distinction between major and minor failures, and that this affected the remedies to which owners were entitled. He stated that where the issue required a major repair or was unable to be repaired within a reasonable time, the owner could request a refund or replacement from the selling dealer. Otherwise, the issue could be remedied with repair at first instance. Mr Morgan explained that personally, he tended to equate a small repair job to a minor failure within the meaning of the ACL, and a big repair job to a major failure. However, he stated that he considered that the best response to each case depended upon its own circumstances, and that major and minor issues were reviewed on a case-by-case basis. 742 Mr Morgan stated that he understood that Jayco Corp had obligations under the ACL that stood independently from the Jayco warranty. He also stated that he understood that selling dealers bore the obligation to replace or refund owners where an entitlement to a refund was made out. Mr Morgan stated that he understood that Jayco Corp could then be liable to indemnify the selling dealer, and thereby understood that Jayco Corp could have liabilities in relation to refunds to owners in addition to its liabilities under the warranty. 743 Mr Rigby stated that while he had received some training in the ACL which had been conducted by Jayco Corp's solicitors, he did not when appointed as the service manager make decisions to repair, refund, or replace RVs, and at that time the ACL was not particularly relevant to his role. He stated in cross-examination that his position as customer relations manager was not dissimilar, although the ACL was more relevant in that role. He stated that his practice was to refer any issues that related to the ACL to other staff at Jayco Corp. 744 Mr Austin stated that he also had attended consumer law training sessions presented by Jayco Corp's solicitors, which outlined sellers' and manufacturers' obligations under the ACL. In cross-examination, he conceded some understanding of the components of the ACL, but not a good understanding, and he also accepted that he did not know enough about the ACL to say whether there was any obligation on Jayco Corp under the ACL to refund money to a consumer. Mr Austin was taken in cross-examination to his handling of one particular claim which he accepted was consistent with the practice that he would not be authorised to refund the purchase price or to replace the RV unless there was a major structural or safety-related issue. Mr Austin agreed in cross-examination that in the 15 years prior to his retirement on 24 July 2015, the instructions that he received from senior management with respect to refunds or replacements were consistently to the effect that they would not be authorised unless there were safety, major structural, or safety issues. Mr Austin stated that, "… if a van is easily repaired, you repair it." 745 Mr Manning's evidence was that in his experience, most problems that were experienced in an RV could be repaired by the dealer or a service agent, and that it was very rare that an RV had to come back to "head office". He stated that he considered a fault to be a major fault where it rendered the RV unusable for an extended period of time, where the RV posed health or safety issues, or where the cost of repairs was high relative to the purchase price of the RV. Otherwise, his evidence was of a practice that if the defects were repairable, then from the perspective of his role, and the limitations on his authority, that was the course that Jayco Corp required be followed, which was in turn communicated to the dealer in the understanding it would be passed on to the customer. It is important that Mr Manning qualified this evidence by stating that he was speaking "from my role and my limits", and that "if it went above, management might have made a different decision". 746 I formed the view that, of the Jayco Corp witnesses, Mr Morgan appeared to have the best grasp of the relevant concepts. He had a clear understanding that the liability under the ACL for a refund or for replacement goods attached to the dealer. However, the picture presented by the evidence was that the members of the Jayco Corp warranty team had an imperfect understanding of the operation of the ACL. The main deficiency was that there was no express reference in the evidence to any criterion akin to that contained in s 260(a) of the ACL, that is, whether the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of a failure to comply with a statutory guarantee. Having said that, one of the touchstones that the witnesses employed, namely the ease with which repairs could be effected, was not at all foreign to the ACL. It was relevant to whether there was a major failure on the ground of unfitness for purpose, and although no witness made this point expressly, the ease with which any failure might be remedied was relevant to the tolerance of the reasonable consumer as I have explained at [38] to [43] above. And all the witnesses were of the view that each claim had to be considered on a case-by-case basis, which as a general proposition is unexceptionable.
Requests for replacement RVs or refunds 747 Mr Rigby stated that Jayco Corp had provided replacement RVs to consumers directly under the Jayco warranty in a variety of circumstances. Mr Rigby produced some spreadsheets identifying the rebuilds (meaning that a consumer's RV was rebuilt to that consumer's specifications so that it could be provided as a replacement RV) and refunds that Jayco Corp had made for 2013 to 2015, and for part of 2016. Those spreadsheets recorded - (1) 20 rebuilds or refunds for 2013; (2) 14 rebuilds or refunds for 2014; (3) 15 rebuilds or refunds for 2015; and (4) 18 rebuilds or refunds for 2016. 748 The spreadsheets recorded a variety of reasons for the rebuilds or refunds, and in respect of about half, they recorded instances of water ingress. Additionally, Mr Rigby produced some spreadsheets recording 22 instances of dealers who had agreed to refunds or rebuilds in the same period. In many instances, the documents record some contribution from Jayco Corp. 749 Members of the warranty team below Mr Murphy did not have authority to authorise replacement RVs, or to indemnify dealers in respect of refunds. In order for Mr Murphy or some other person authorised to make the decision to consider a request for a replacement RV, the claim and associated information had to be escalated. In relation to claims for replacement RVs, Mr Rigby, Mr Austin, and Mr Manning each gave evidence substantially to the effect that they would compile information for presentation to Mr Morgan and Mr Murphy. Mr Morgan stated that in order to have all the information to make a decision, he required - (1) a quotation to fix the RV to a level that the owner would accept; (2) a quotation to repair the RV to a level whereby it could be sold as a second-hand unit; and (3) the contribution that the dealer was requesting from Jayco Corp. 750 Mr Murphy stated that he did not recall ever providing Mr Morgan or any other staff member with any general instructions as to what data he required to consider a request for a refund or replacement RV, but from a practical perspective, he understood that any RV with a reported problem would be physically assessed by someone to determine exactly what, if anything, was wrong with the RV, and to assess of the magnitude and cost of the repairs, to consider whether a repair should or could be completed, or if it was more appropriate to replace the RV or provide financial assistance to the dealer providing a refund. 751 The weight of the evidence was that if a consumer contacted Jayco Corp directly seeking a replacement RV, or a refund, the practice was to refer the consumer to their selling dealer. This was for reasons including that the dealer had the contract of sale, the dealer had the existing relationship with the consumer and could address the consumer's concerns, and that an assessment of the RV had to be undertaken, resulting in the provision of information including quotations and photographs so that a fully informed decision could be made. Thereafter, there was no formal process as such, but an assessment of the relevant documents was usually made with the staff at the relevant level of authorisation, including Mr Morgan, Mr Murphy, or the CEO. 752 Mr Murphy stated that during the relevant period, and until he retired, where a replacement RV, warranty repairs, or a refund was requested, Jayco Corp would review the claim on a case-by-case basis, considering its warranty obligations, and its ACL obligations. Mr Murphy stated that while the process was informal, some of the factors that would be taken into account included - (1) whether there was a manufacturing defect; (2) whether the claim was by the customer under the Jayco warranty or by the dealer for reimbursement for repairs, replacements or refunds under the ACL; (3) if the claim was by the customer under the Jayco warranty, whether the customer was the original owner, and the van was within the warranty period and the terms of the warranty had been complied with; (4) whether the manufacturing defect was repairable; (5) if the manufacturing defect was repairable, what the time frame would be for a repair; (6) what the cost would be for a repair; (7) what the outcome of the repair would be, both cosmetically and functionally; (8) how difficult a repair would be, and whether it could be done locally or could only be done by head office, at the Jayco Corp factory in Dandenong; (9) whether there had been past repairs on the RV, and whether it had a good service history; (10) if the manufacturing defect was not repairable, or could only be done with significant cost, extensive work, or long delay, what outcome the customer was seeking, such as a replacement RV, trade-in or refund; (11) whether there had been any inappropriate use of the RV relevant to the issue; (12) the customer's experience with the defect and the process more generally; (13) whether the customer had existing travel plans that would require the use of the van; and (14) whether the van was usable or whether the repair or other outcome needed to be done urgently due to safety or other concerns. 753 As to some specific instances of claims for a refund or replacement, Mr Manning was taken in cross-examination to some email exchanges relating to claims involving other consumers. Mr Manning was taken to an email communication in February 2016 with a consumer, who was not one of the four Consumers, which illustrated Mr Manning's practice of referring consumers to their selling dealer when they requested a refund. The consumer later informed Mr Manning in March 2016 that the dealer would not refund the purchase price, and in response Mr Manning advised the consumer that he could help with warranty on Jayco manufacturing faults, but that, "as per the warranty terms and conditions Jayco will only be repairing under warranty. No replacing the van." 754 Mr Manning was also taken to an email communication to another dealer on 4 June 2014 in relation to a consumer who had requested a full refund, or a replacement RV, or repairs at no cost to him in terms of the travel time involved in returning the RV to the dealer for the repairs. Mr Manning stated to the dealer, "There will be no new van or refund given due to warranty repairs. That is what the warranty is there for; repairs only". Mr Manning denied that, across the board, this was his perception of the warranty, but accepted that what he wrote was an incomplete description of the warranty. 755 Mr Manning was taken to an email communication on 1 December 2015 with another consumer, who had complained that a new Jayco camper that she had acquired was missing some anchor bolts, the repairs to which involved removing the kitchen section in circumstances where the consumer wished to use the RV to go away before and after Christmas. The consumer requested a refund to which Mr Manning responded, "There will not be a replacement van or money back. Jayco warranty is to repair the van only. Please have Nowra contact us if they believe it to be a Jayco manufacturing fault. Then we can approve if it's over their limit." Mr Manning agreed that this also was an incomplete description of the terms of the Jayco warranty. 756 Mr Manning was taken to a further email exchange with an RV service centre in Nowra concerning the RV of a consumer who reported a number of problems with his new Jayco RV, including water leakage, and bubbling plywood. There was no request in terms for a replacement RV, although there is reference in the email exchange to the consumer having already obtained a replacement RV, and it appears that it was the replacement RV that was affected. In an email to the service centre dated 28 February 2013, Mr Manning stated - … He will need to put in writing his thoughts or requests. As far as you and I stand we can only authorise repairing this under warranty. Jayco will want your report and quotes if the owner is demanding money back or replacement van. No guarantees though. It would be between your senior management and ours. Please don't say anything to owner about refund or replacement van. He needs to decide for himself how he wants to deal with it other than repairs. I'm confident Jayco will only authorise repairs on this van. (Emphasis in original) 757 By reference to this email, Mr Manning agreed in cross-examination that as a matter of common practice, in the event that an owner asked a dealer for a refund or a replacement RV, the dealer would then discuss it with senior management at Jayco Corp. Mr Manning also stated that if a consumer approached Jayco Corp directly seeking a refund or replacement RV, then he had been instructed by Mr Morgan to refer the consumer back to the dealer, who would then take the matter up with Jayco Corp management. When put to him, Mr Manning did not accept that this process was to be characterised as circular.
Jayco Corp's role generally in the decision of a dealer whether to replace an RV or to refund the purchase price 758 I have referred to the evidence of Jayco Corp's practice of referring consumers seeking refunds or replacement RVs back to their selling dealer, who for the purposes of the ACL was the supplier. A related issue raised by the ACCC's case was an allegation that Jayco Corp controlled the decision-making process undertaken by the selling dealer. 759 Mr Morgan produced a document that listed the limits of authority of Jayco Corp staff to approve warranty claims. The document commenced as follows - A list of whom at Jayco Can Approve Warranty and Replacement Vans/Refund and to what level 1. Jayco Dealers are pre approved to complete warranty repairs up to $1000 inclusive of GST providing the van is within its warranty period and the Dealer believes it should be covered under warranty. 2. Authorised Service Agents are pre approved to complete warranty repairs up to $750 inclusive of GST providing the van is within its warranty period and the service agent believes it should be covered under warranty. 3. All claims outside of the pre approved limits, its 12 month warranty has expired and the repairer believes it should be covered by Jayco, the Dealer or service agent then contact Jayco for approval. The approvals are supplied by the following team members based on their authority levels and the regions they cover based on the location of the selling dealer. 760 The document then contained the following entries, amongst others - • Peter Manning - All Warranty levels except Van Replacement or Refund - Anything above $1000 has a second sign off by either Paul Morgan, Phillip Rigby or Peter Murphy … • Phillip Rigby - All Warranty levels through to a recommendation of a Van Replacement or Refund - Approval for Replacement or Refund is required by Peter Murphy, Neil McGowan or Carl Bizon • Paul Morgan - All Warranty levels through to a recommendation of a Van Replacement or Refund - Approval for Replacement or Refund is required by Peter Murphy, Neil McGowan or Carl Bizon • Peter Murphy - All Warranty levels through to Van Replacement or Refund • Neil McGowan - All Warranty levels through to Van Replacement or Refund • Carl Bizon - All Warranty levels through to Van Replacement or Refund 761 As the paragraphs of the list numbered 1 and 2 above indicate, Jayco dealers and service agents had specified limits for warranty work under which claims were automatically approved, and were later ratified by Jayco Corp. Subject to this, the evidence of Jayco Corp's general practice was that every warranty claim submitted to Jayco Corp required written authorisation from a member of the warranty team. Without written authorisation, the dealer or service agent would generally not be reimbursed for labour charges. 762 Mr Morgan was cross-examined about the list referred to at [760] above, and stated that the list was issued to dealers. Mr Morgan consistently rejected the proposition, which was put to him in a number of ways in cross-examination, that the document had the effect that a decision by a dealer to supply a replacement RV or to give a refund required the approval of Mr Murphy, Mr McGowan, or Mr Bizon. Mr Morgan explained that the document was concerned with the relations between Jayco Corp and the dealers. He stated that what the dealers did with the customers was the dealer's choice: "the dealership makes that decision through the ACL". Mr Morgan was firm in his evidence that it was not the practice of Jayco Corp to push its decisions as to whether to repair or replace onto the dealer, stating that there were so many circumstances around every repair, and that Jayco Corp had never stopped dealers from agreeing to a refund or replacement and seeking financial contribution afterwards. Mr Morgan's evidence in this regard was credible and reliable. The evidence was supported by documentary evidence to which I shall refer below, and the evidence of the two dealer principals who were called, Mr Bilbija of Jayco Sydney and Mr Charleson of Jayco Newcastle, to which I shall also refer below. Mr Morgan stated that he could not recall any instance where a dealer provided a repair, replacement, or refund to a consumer on the basis of an ACL claim concerning a manufacturing defect, and Jayco Corp had subsequently refused to assist the dealer. 763 With reference to the terms of the Jayco warranty that provided Jayco Corp with a discretion to replace an RV, or a defective part of an RV, Mr Morgan stated that there was no directive, requirement or policy within Jayco Corp that repairs had to be pushed to dealers or owners in preference to replacements. Mr Morgan stated that the practice was to assess every case on its merits. In cross-examination, Mr Morgan did not agree that it was inevitable that a dealer would raise the question of a refund or replacement RV as part of the warranty process, but stated that it was common that a dealer faced with an owner's request for a repair, replacement, or refund would do so prior to making a decision itself. He agreed that in the case of a manufacturing defect, dealers would generally contact Jayco Corp and speak to it about the situation, and would do so as a matter of course during the 12 month warranty period. He described the process as one of collaboration as far as what level of repairs needed to be undertaken. He separated this from the dealer's decision as to what it proposed to do, and the financial elements of that decision. He emphasised that every single RV has a different circumstance, and stated that it was the dealers' decision as to what course they would take, because it was their call. 764 For his part, Mr Murphy stated that it was his understanding that Jayco Corp played no role in a dealer's decision to replace an RV, other than to provide advice if asked for it, including advice about available repairs or problem fixes, or to determine whether Jayco Corp would make a financial contribution to the dealer's decision to refund for non-manufacturing reasons. Mr Murphy stated that if a dealer had wanted to provide a refund or replacement at any time, it was entitled to do so. As with Mr Morgan, it was put to Mr Murphy in cross-examination by reference to the list referred to at [760] above that a dealer could not itself replace an RV for a consumer without Jayco Corp's approval. Mr Murphy responded, "No. The dealer could do that, if they wished." Mr Murphy stated that Jayco Corp and the Jayco dealers understood that dealers would be required to provide replacements or refunds to consumers where necessary under the ACL. He stated that in practice, dealers frequently sought prior confirmation from Jayco Corp, either that it would deal with the claim under the Jayco warranty, or that it would support the dealers with reimbursement for refunds, or the provision of rebuilds or replacement RVs, or some other assistance for their customer, on a case-by-case basis. He stated that dealers, nonetheless, often provided replacements or refunds to their customers without involving Jayco Corp at all in the first instance, but then worked out a financial arrangement afterwards. However, in cross-examination, Mr Murphy accepted that this was not common. 765 As to practical matters, Mr Murphy agreed that dealers were at the front line in terms of the interaction with customers, and that in relation to manufacturing defects, a dealer would be keen to ensure that Jayco Corp would take responsibility financially for any costs of rectification or otherwise dealing with manufacturing defects, and accepted that this was just ordinary business sense. 766 Mr Rigby stated that so far as he could recall, he had never expressed to a dealer or customer that Jayco Corp had any influence or control over a dealer's decision to refund or replace. He stated that it was a matter for the dealers themselves if they wanted to replace an RV or provide a refund, and stated that on some occasions, dealers had provided a refund or replacement RV to a customer, and then approached Jayco Corp afterwards to ascertain whether Jayco Corp would contribute to the cost of doing so. 767 It was put to Mr Austin that in respect of a serious problem, such as a problem that would give rise to an obligation on a dealer to refund the purchase price, or to replace the RV, that the dealer would as a matter of ordinary business practice contact Jayco Corp. Mr Austin responded by stating that some dealers did, and some dealers made their own decisions. He later said that generally, dealers would seek some sort of advice, but stated that the dealers ultimately made the decision on which way they wanted to go. Mr Austin resisted the proposition that dealers had to obtain approval from Jayco Corp before offering a refund, characterising the position as one of seeking advice. However, Mr Austin agreed that claims under the Jayco warranty had to be approved by Jayco Corp, and that if that involved replacing the RV, or refunding the purchase price, it had to be approved at a level of authority higher than he possessed. 768 The evidence of Mr Murphy, Mr Morgan, Mr Austin, Mr Rigby, and Mr Manning supports the conclusion, which I draw, that it was common for dealers to seek the advice of members of the Jayco Corp warranty team about claims, and when the occasion arose, they often sought Jayco Corp's attitude to a request or proposal to replace an RV, or to refund the purchase price. However, the ACCC's claims went further, and alleged that Jayco Corp exercised effective control over whether a dealer would comply with its statutory obligation to provide a replacement RV, or a refund. 769 A number of documents were produced relating to the question whether Jayco Corp exercised control over the decisions of dealers to refund the purchase price, or to replace an RV. Mr Morgan produced an email to Jayco Corp from a dealer, Brisbane Camperland, dated 17 February 2016. The dealer had decided initially to replace a leaking Jayco RV, only for the consumer to experience leaking in the replacement RV. The dealer then decided to refund the purchase price and to take the second RV back as well. After resolving the issue with the consumer, the dealer then requested that Jayco Corp compensate it to the extent of $5,000 per RV. 770 Mr Morgan produced as another illustration an email exchange in February 2016 between Jayco Corp and a dealer, Jayco Townsville, concerning a consumer who had experienced problems with the winding mechanism on a Jayco camper trailer, which had to be returned to the dealer for repairs twice. The consumer requested a refund, and wanted to upgrade to a Jayco Expanda RV. The dealer sought a contribution from Jayco Corp to this transaction, and accepted an offer of $2,000. 771 Mr Morgan also produced an email chain from July 2016 between Jayco Corp and a dealer, Page Bros Jayco, in relation to a Jayco camper trailer that suffered from a faulty riser arm. The consumers had sought to trade up from the camper trailer to a Starcraft van. The dealer sought a financial contribution from Jayco Corp to the transaction. Mr Morgan told the dealer that the RV was repairable, and that Jayco Corp would repair it, but in addition agreed to contribute $1,000 if the dealer itself decided to negotiate a changeover RV with the consumer. 772 In cross-examination, Mr Morgan was taken to an email chain of 7 and 8 May 2014 between Jayco Corp and a dealer, Brisbane Camperland. The dealer wrote to Jayco Corp about some defects in a consumer's RV that included major water leaks, severe bubbling on the internal wall, and cracking in and around the front boot mould. The dealer stated that the consumer had requested a replacement RV of similar value, or his money back, and stated that he had requested the consumer to contact Jayco Corp directly. Mr Manning replied to the dealer in the following terms, to which Mr Morgan was copied - For this to be approved I will need a quote done up to run past senior management here for a direction. There is not much point telling the owner to call here. The repairs will be done under warranty as seen fit for warranty; this is all we will tell him. Jayco won't be offering a new van or refund on this one. Please quote up. 773 It was put to Mr Morgan that this email exchange was entirely consistent with a process under which the question of replacement or refund would be submitted to Jayco Corp for approval. Mr Morgan did not agree. I pause to observe that Mr Morgan did not recall the email, and that its contents and any inferences that were to be drawn from its contents were not put to Mr Manning. In my assessment, a fair reading of the email from Mr Manning to the dealer is that it conveyed to the dealer that there was not much point referring the consumer to Jayco Corp directly, and that all Jayco Corp would be able to tell the consumer was that repairs would be done under warranty, and that the dealer should prepare a quotation. I do not accept that the email demonstrates the existence of a process under which the question of replacement or refund would be submitted to Jayco Corp for approval. 774 Mr Morgan was also taken in cross-examination to an email dated 10 January 2013 from Mr Manning to Mr Charleson of Jayco Newcastle in relation to a consumer claim in which Mr Manning stated, inter alia - Just letting you know I have spoken to [the consumer]. I have told her Jayco and Jayco Newcastle won't be exploring the options of a refund or replacement van. I told her this is all easily repaired under warranty. … 775 Mr Morgan did not agree that this email was consistent with a practice under which a decision as to a replacement or refund was made by Jayco Corp. The email was not put to Mr Manning, and the cross-examination did not explore any of the background to the email, and therefore I consider that it is of little probative value. 776 Mr Morgan was taken to another email, in this instance dated 5 March 2013 from Mr Holloway of Jayco Corp to Mr Austin, to which Mr Morgan, Mr Murphy and the relevant dealer, Watsons Caravans, were copied. The email related to a faulty RV that the dealer had brought to Jayco Corp's attention in an earlier email dated 21 February 2013. The dealer expressed the view in the earlier email that "we will need to be prepared to refund his money in full", and stated that "Jayco to refund me the dealer", and asked, "Let me know your thoughts". Mr Morgan was not taken to this earlier email, but only to the last email in the chain, where Mr Holloway wrote to Mr Austin, copied to Mr Morgan, Mr Murphy and the dealer - On [the dealer's] comments, actions, and customer requests please have warranty express their views and recommendations. Should this recommendation be as [the dealer] has suggested a full refund, you will need to include Peter [Murphy, who was copied] and myself. Await yours and Paul's [Murphy, who was copied] direction. 777 It was put to Mr Morgan that this last email in the chain was consistent with the position that the question of refund had to be approved by Jayco Corp. Mr Morgan disagreed, explaining that it was concerned with what Jayco Corp was prepared to do for the dealer, and not what the dealer was going to do for the customer. This answer was consistent with the earlier emails in the chain to which Mr Morgan was not taken in cross-examination which I find were, in substance, endeavours by the dealer to familiarise Jayco Corp with the defects, so that the dealer could secure financial assistance from Jayco Corp in the event that the dealer proceeded, as it had foreshadowed, to refund the purchase price to the consumer. 778 Mr Morgan's answers were also consistent with another instance evidenced by an email exchange in April 2013 where a dealer, Jayco Sydney, refunded the purchase price of a Jayco Expanda RV, and sought compensation from Jayco Corp after the event. This email exchange demonstrated that the principal of Jayco Sydney, Mr Bilbija, had acted in that instance to refund the purchase price of an RV without first consulting Jayco Corp, and sought compensation after the event. 779 There were some other emails that senior counsel for the ACCC put to Mr Morgan, without relevant surrounding context, which I do not consider advanced the ACCC's claim that dealers were required to obtain approval from Jayco Corp before offering a refund or replacement RV to a consumer, or otherwise undermined the effect of Mr Morgan's evidence.
The practices of the two Jayco dealers in relation to decisions whether to replace an RV or to refund the purchase price 780 As I have mentioned, the two dealer principals who were called by Jayco Corp gave evidence about their general practices in relation to claims for refunds or replacement RVs made to them by consumers.
The practices of Jayco Sydney 781 Mr Bilbija was the dealer principal of Jayco Sydney. He gave evidence about his understanding of Jayco Sydney's obligations under the ACL, and about Jayco Sydney's approach to responding to dissatisfied consumers who sought a replacement RV, or a refund from Jayco Sydney. In his affidavit, Mr Bilbija stated that he understood that Jayco Sydney had its own obligations to its customers under the ACL. Mr Bilbija stated that on the rare occasions when a customer approached Jayco Sydney seeking a replacement RV or a refund, Jayco Sydney would seek Jayco Corp's views on whether the RV was repairable and whether Jayco Corp wished to provide a replacement or refund under the Jayco warranty. He stated that as a matter of general practice Jayco Corp usually expected that Jayco Sydney would take any requests for repairs, replacements, or refunds, at least over a certain level, to Jayco Corp. He was consistent in his evidence that Jayco Sydney itself always made the "final call" as to whether a replacement or refund would be provided. Mr Bilbija stated that while Jayco Sydney sought input from Jayco Corp, it was Jayco Sydney that took the lead and had primary responsibility for determining whether it was required under the ACL to provide a replacement or refund. Mr Bilbija further stated that in most cases, Jayco Sydney would make its own call to provide a replacement RV or refund, and would then seek financial assistance from Jayco Corp afterwards, which was usually provided if the issue was a manufacturing defect. Finally, Mr Bilbija stated that on some occasions when Jayco Sydney considered an RV to be repairable, it had nonetheless provided a replacement or refund to keep a consumer happy, and then repaired the RV and sold it second-hand. Mr Bilbija stated that in those circumstances, Jayco Sydney might turn to Jayco Corp to seek reimbursement for its expenses if the issue with the RV was a manufacturing fault. 782 In cross-examination, Mr Bilbija maintained his evidence that he understood that Jayco Sydney had its own obligations to its customers under the ACL, and that while Jayco Sydney's approach was to seek Jayco Corp's views on replacement or refund requests, Jayco Sydney itself made the final call as to whether a replacement or refund would be provided. Mr Bilbija accepted that it was Jayco Sydney's general practice, and also Jayco Corp's expectation, that Jayco Sydney would seek Jayco Corp's views on replacement or refund requests. Further, Mr Bilbija stated that Jayco Sydney would sometimes take Jayco Corp's directions about the appropriate response to such requests. However, Mr Bilbija was consistent in maintaining that Jayco Sydney itself considered its own ACL obligations in assessing and responding to such requests. In particular, Mr Bilbija stated that Jayco Sydney did not always seek Jayco Corp's consent before granting a replacement or refund. He referred generally to previous occasions where he had granted a replacement or refund without first obtaining Jayco Corp's consent because he considered that the RV had suffered a "major defect", which he later confirmed was a reference to the "major failure" provision of the ACL. 783 In this respect, Mr Bilbija was taken in cross-examination to an email that he had sent to Mr Austin of Jayco Corp on 23 May 2013 in relation to a consumer not involved in this proceeding who sought a replacement RV or a refund from Jayco Sydney. In that email, Mr Bilbija referred to an earlier instance with a consumer "[whose] van I refunded but only received an offer of $3500 compensation from Jayco on that one", and went on to say, "So with that in mind and since none of the faults are the doing of Jayco Sydney I feel I must fight it all the way otherwise I will go broke." It was put to Mr Bilbija that this email demonstrated that Jayco Sydney was hamstrung into adopting Jayco Corp's view on whether a replacement or a refund should be provided, because if Jayco Sydney provided a replacement or refund without Jayco Corp's agreement, then Jayco Sydney would be out of pocket. Mr Bilbija rejected that suggestion, and stated that the email supported his evidence that Jayco Sydney made its own decision on replacement or refund requests. Mr Bilbija stated that he recalled the two consumers referred to in the email. In relation to the earlier consumer referred to in the email, Mr Bilbija stated that Jayco Sydney provided a refund because it considered that it was warranted, and that while he would have liked Jayco Corp to contribute more as an indemnity, the fact that Jayco Sydney nonetheless provided the refund demonstrated that Jayco Sydney made its own decisions and that Jayco Corp's view was not determinative. In relation to the second consumer that was the subject of the email, Mr Bilbija accepted that his reference to going "broke" was intended to encourage assistance from Jayco Corp, but maintained that the decision was ultimately to be made by Jayco Sydney and on the facts of that case, he did not consider that a replacement or refund was warranted. 784 Mr Bilbija also gave evidence about Jayco Sydney's consideration of the replacement or refund requests made by Consumer MO, Consumer JT, and Consumer TB. In keeping with his evidence about Jayco Sydney's general approach, Mr Bilbija stated that Jayco Sydney sought Jayco Corp's views on those requests, but that it also undertook its own assessments and made its own decisions. 785 In relation to Jayco Sydney's general approach to replacement or refund requests, I accept Mr Bilbija's evidence that he understood that Jayco Sydney had its own obligations to its consumers under the ACL, and that while Jayco Sydney's approach was to seek Jayco Corp's views on replacement or refund requests, Mr Bilbija understood that Jayco Sydney itself made the final call as to whether a replacement or refund would be provided. Mr Bilbija demonstrated a general awareness of Jayco Sydney's own obligations under the ACL, including an awareness, albeit without a perfect understanding, of the operation of the "major failure" provision of the ACL that gives rise to a consumer's entitlement to elect between receiving replacement goods or a refund. Mr Bilbija referred to this concept in cross-examination as a "major fault", which he later clarified to be a reference to a major failure under the ACL. The main point though is that Mr Bilbija demonstrated an understanding that the dealer's obligations to the consumer under the ACL were distinct from Jayco Corp's obligations. Mr Bilbija was cross-examined closely about these issues, and he withstood that cross-examination. At times, some of the questions that were put to Mr Bilbija in cross-examination had a tendency to confuse obligations under the Jayco warranty and obligations under the ACL, and I have taken that into account in assessing Mr Bilbija's evidence, which I found to be credible. Further, I accept Mr Bilbija's evidence that there were occasions when Jayco Sydney provided a replacement RV or a refund without first obtaining Jayco Corp's consent to do so, including in the instance referred to in his email to Mr Austin, following which Mr Bilbija was disappointed by Jayco Corp's only partial contribution towards an indemnity. However, I consider that on most occasions, and perhaps more often following Mr Bilbija's disappointment with Jayco Corp's contributions, Jayco Sydney would seek Jayco Corp's views as to its willingness to contribute before deciding whether to provide a replacement RV or a refund. The issue remains the extent to which Jayco Sydney's response to replacement or refund requests was influenced by Jayco Corp's view, and critically whether Jayco Sydney would act upon its own view that a replacement or refund was required to meet its own obligations under the ACL if Jayco Corp had communicated its view that it did not consider a replacement or refund to be warranted. I consider that Jayco Sydney's responses to such requests were likely influenced by Jayco Corp's communicated position. The commercial risk for Jayco Sydney of providing a replacement RV or refund, which Jayco Corp might later refuse to indemnify or fully indemnify, formed part of Mr Bilbija's assessment of such requests. It is likely that Mr Bilbija also considered the opposing commercial risk of the consumer seeking to enforce an alleged entitlement to reject the goods and to receive a replacement or refund.
The practices of Jayco Newcastle 786 Mr Charleson was the dealer principal of Jayco Newcastle. He gave evidence about his understanding of Jayco Newcastle's obligations under the ACL and about Jayco Newcastle's approach to responding to consumers who sought a replacement RV or a refund from Jayco Newcastle. Mr Charleson's evidence on this issue was relatively brief, compared to Mr Bilbija's evidence on the corresponding topic. 787 In his affidavit, Mr Charleson stated that he understood that Jayco Newcastle had its own obligations under the ACL. Mr Charleson stated that he made his own decisions about how Jayco Newcastle would assist customers with complaints about their RV. In particular, Mr Charleson stated that he considered that it was for Jayco Newcastle, as the selling dealer, to take the lead as it had primary responsibility for providing replacement RVs or refunds to consumers where an RV had a major problem or it had a history of not having been properly repaired. Mr Charleson stated that if a consumer requested a replacement or a refund, or if it appeared to Jayco Newcastle that the problem was so significant as to warrant considering providing a replacement, Jayco Newcastle might discuss the matter with Jayco Corp, or it might choose to proceed without involving Jayco Corp. Mr Charleson stated that if Jayco Newcastle provided material to Jayco Corp to show that the fault probably resulted from manufacturing, and if the fault was not repairable, or the cost of repair was large compared to the overall price, then Jayco Corp would generally agree to pay for the cost of replacement parts, or to pay for or contribute towards the cost of a replacement RV. Mr Charleson stated that while he considered Jayco Newcastle's own obligations under the ACL, where a customer's complaint concerned a manufacturing fault falling under the Jayco warranty, Jayco Corp's response was generally sufficient. Mr Charleson also referred generally to occasions in which he had agreed to replace a customer's RV, even when he considered that Jayco Newcastle was not obliged to do so, because he wanted to improve the relationship between that customer and Jayco Newcastle. Mr Charleson stated that on those occasions, either Jayco Newcastle bore the entire cost, or sometimes Jayco Corp provided financial assistance. 788 Mr Charleson was challenged on this evidence. During cross-examination, Mr Charleson stated that whenever an issue arose with an RV which Jayco Newcastle considered to be a manufacturing fault, Jayco Newcastle would raise it with Jayco Corp, and that he considered that it was appropriate that Jayco Corp bear the cost of fixing the issue. Mr Charleson stated that Jayco Corp would provide guidance as to whether in its opinion the issue was a manufacturing fault, and what Jayco Corp was willing to do about it, which he would communicate to the customer. As to Jayco Newcastle's own obligations under the ACL, Mr Charleson stated that Jayco Corp's response did not absolve Jayco Newcastle of its obligations to consumers under the ACL, although it was usually sufficient. During cross-examination, Mr Charleson was taken to part of Jayco Newcastle's response to a statutory notice to produce issued to it by the ACCC, which stated that "Jayco Newcastle does not have a process by which major failures are assessed. Jayco Newcastle has never had an instance of a major failure." It was put to Mr Charleson that part of the reason for that response was that ordinarily the matter the subject of the customer's complaint would be dealt with by Jayco Corp under the Jayco warranty process. Mr Charleson responded, "[a]nd Jayco Newcastle", and accepted that by this answer he meant that that Jayco Newcastle would first assess the issue and then submit the report to Jayco Corp. 789 Viewed as a whole, I accept Mr Charleson's evidence that he understood that Jayco Newcastle had its own obligations to its customers under the ACL, and that he considered that Jayco Newcastle should take the lead as it was primarily responsible to provide a replacement RV or a refund if a customer's RV had a major problem, which I take to be a reference to the major failure provision in s 260 of the ACL. I do not consider that Jayco Newcastle's response to the ACCC notice to produce, in which it stated that it did not have a process for assessing major failures, or the cross-examination of Mr Charleson on that topic, significantly undermined that evidence when viewed in the context of the totality of Mr Charleson's evidence.
The ACCC's claims in relation to Jayco Corp's practices 790 As I stated at the outset at [3], the ACCC did not allege that Jayco Corp engaged in a system of conduct or a pattern of behaviour such as to engage s 21(4)(b) of the ACL. However, the allegations made by the ACCC about the conduct of Jayco Corp were set against the background of circumstances of a general nature, and what were alleged to be the practices of Jayco Corp in dealing with consumer complaints as part of the Jayco warranty process. Before considering the ACCC's claim that Jayco Corp unfairly obstructed the four individual Consumers from obtaining a refund or a replacement RV, it is convenient to express some conclusions in relation to some of the general circumstances that were alleged. 791 The ACCC alleged that an ordinary consumer seeking a remedy for a defective RV was unlikely to understand the distinction between the consumer guarantees under the ACL and the Jayco warranty. In submissions, the ACCC claimed that consumers were liable to be confused about whether a Jayco dealer was a separate entity from Jayco Corp. Those allegations invite some degree of speculation, and were not established by the evidence. The text of the Jayco warranty drew attention to the separate rights of consumers under the ACL in terms that complied with reg 90 of the Competition and Consumer Regulations, and on that ground I have at [720]-[721] rejected the ACCC's submission that there were deficiencies in the warranty document in relation to its references to the ACL. Three of the four Consumers approached New South Wales Fair Trading for assistance, which evidences a consciousness in a general sense of consumer rights. To the extent that there was the possibility of confusion concerning rights under a manufacturer's warranty, and rights under the ACL, that is a product of the matrix of statutory obligations that exist under the ACL, and any inadequacies in the prescribed information in the warranty document are hardly to be attributed to Jayco Corp. It is difficult to form an adverse value judgment about the conduct of a manufacturer in offering an unremarkable manufacturer's warranty, with some potential benefits to consumers, when the existence and enforcement of such warranties are expressly accommodated by the legislation, and when its terms do not contravene, but comply with the regulatory prescriptions. That said, I accept that there is in a general sense potential for some confusion about the position, just as there may be a likelihood of confusion about the rights of consumers generally under the ACL. 792 In relation to the separate identities of Jayco Corp and the dealers, the Jayco warranty drew to the Consumers' attention the distinction between the Jayco Corp corporate entity and any Jayco dealer. The warranty referred to "Jayco Corporation Pty Ltd (ABN 005 266 991)", and separately referred to "a Jayco dealer". However, Consumer TB had not read the Jayco warranty prior to giving evidence. There was an attempt by the ACCC to support this confusion through the evidence of Consumer TB, who stated in his affidavit that he assumed that the dealerships were branches of Jayco and that they represented Jayco Corp. In cross-examination, Consumer TB stated that it was not his belief that Jayco Corp was a separate organisation from Jayco Sydney and Jayco Canberra. He stated that he thought that Mr Manning was a regional manager. Although I do not attribute a perfect state of understanding to Consumer TB, I do not accept that he was entirely confused about the roles of Jayco Corp, Jayco Sydney, and Jayco Canberra. In his affidavit, Consumer TB described how prior to purchase he shopped around. He stated that he went to different Jayco "agents" to obtain quotations. Further, he was in possession of an invoice from Jayco Sydney that identified the corporate entity that sold the RV to him. His email to Mr Gregorovic of Jayco Sydney dated 28 May 2013 (see [216] above) demonstrates that he understood that he had purchased the RV from Jayco Sydney, and not Jayco Canberra, or Jayco Corp, and he acknowledged to Jayco Sydney that it did not build the RV. Finally, Consumer TB's email to Jayco Canberra of 5 February 2014 (see [237] above) demonstrates that he understood that Jayco Canberra was not the supplier of the RV, but was a "repair, service and warranty agent". 793 A central element of the ACCC's case, which was alleged in paragraph [5] of its concise statement, and which was appropriately the subject of much cross-examination, was the allegation that Jayco Corp had express control over the replacement or repair of an RV under the Jayco warranty, and effective control over whether the dealer complied with its statutory obligations to provide a refund or replacement. That allegation was not established by the evidence. The picture that was presented by the evidence was that the interlinked obligations of the dealer to the consumer under the ACL, of Jayco Corp to indemnify the dealer under the ACL, and of Jayco Corp to the consumer under the Jayco warranty which was enforceable as a statutory guarantee under the ACL, had the unremarkable consequence that the dealers consulted Jayco Corp about a range of issues in relation to warranty claims, and claims for a refund or a replacement RV. It is also unremarkable in an ongoing commercial relationship that, as Mr Bilbija accepted, Jayco Corp expected the dealers to consult with it about such issues. Those issues included technical issues, the approval of warranty claims for repairs, and Jayco Corp's attitude to claims for replacement RVs, or refunds. In the case of Jayco Sydney, that consultation also had a human element, because its service manager Mr Holman, who had worked at the Jayco Corp factory in Dandenong for a number of years, looked to his former colleagues for guidance. 794 I am satisfied that as a matter of practice, the views of Jayco Corp were liable to influence the decisions of dealers, who looked to Jayco Corp for guidance, and had their own commercial interests to balance against their potential legal liability to consumers. It was a natural result of the warranty claims process that the decisions of Jayco Corp would play a part in shaping the dealers' responses to consumer claims. However, the evidence of Mr Morgan, the objective support for that evidence found in the email communications to which I have referred, and the evidence of the dealer principals Mr Bilbija and Mr Charleson, leads me to reject the ACCC's case to the extent that it involved alleging a practice under which Jayco Corp exercised control over, as distinct from having influence in connection with, the dealers' compliance with their obligations under the ACL. Specifically, I reject the notion that Jayco Corp had a requirement that its dealers obtain its approval before agreeing to a refund or a replacement RV. 795 It follows that I also reject another component of the ACCC's claim, namely that Jayco Corp contravened s 21 of the ACL by failing to exercise a choice to provide a replacement RV under the terms of the Jayco warranty in circumstances where there was a corresponding right of a consumer under the ACL to reject the goods, and to seek a refund or replacement RV from the supplier. As I have remarked earlier, there is a matrix of statutory rights and obligations under which in the event of a major failure to comply with a relevant statutory guarantee, upon rejecting the goods, a consumer is able to elect whether to require the supplier to refund the purchase price, or to replace goods. The ACCC's claim in [8] of its concise statement relevantly extended only to an allegation that Jayco Corp refused to exercise its discretion under the Jayco warranty to provide a replacement RV in circumstances where Jayco Corp had no corresponding direct obligation to the Consumer under the ACL to supply a replacement RV. The ACCC did not rely on any suggested failure of Jayco Corp to refund the purchase price of the RVs to support its claim. Jayco Corp did not supply the RVs to the consumers, and there was therefore no purchase price for it to repay. 796 As is apparent, there was an asymmetry between the obligations of the dealers as suppliers, and of Jayco Corp as the manufacturer. As Mr Bilbija stated in cross-examination in the context of the ACL, "the warranty essentially lies with me because I'm the selling dealer, and then if I want to claim reimbursement, I would then have to go to Jayco to claim that reimbursement". The evidence to which I have referred of refunds and replacement RVs that were supplied by dealers to consumers in other instances illustrates that there is no necessary correspondence between the liability of a dealer to a consumer, and the liability of Jayco Corp to the dealer. As some of those instances illustrate, the decision of a dealer to accept the rejection of an RV by a consumer may result in the dealer effecting repairs and re-selling the RV to another consumer. The dealer may also negotiate the sale of a different model RV to the first consumer. The evidence supports an inference that working out the liability of Jayco Corp to a dealer in these circumstances was likely to be the subject of commercial negotiation between a dealer principal, and staff at Jayco Corp with the requisite seniority.
The ACCC's claims of unconscionable conduct by Jayco Corp in relation to the four Consumers 797 Against the above background relating to the general practices of Jayco Corp and the two relevant dealers in relation to the assessment of claims for refunds or replacement RVs, it is necessary to turn to the circumstances relating to the four Consumers. Those claims fall to be examined particularly through the lens of what information Jayco Corp had in relation to the claims, and Jayco Corp's responses to them, against the background circumstances.
Consumer RH 798 For the reasons that I have given, I am not persuaded that there was a major failure to comply with a statutory guarantee which entitled Consumer RH to reject her RV, and to seek a refund or replacement RV. A necessary premise of the ACCC's claim in relation to the allegation that Jayco Corp acted unconscionably in the case of Consumer RH is therefore absent, and its claim that Jayco Corp engaged in unconscionable conduct in the case of Consumer RH fails. Putting that to one side, other factual findings can be made in relation to Consumer RH's circumstances. 799 I am not persuaded that Consumer RH requested a refund from Jayco Newcastle during telephone conversations on 5 December 2014 as she claimed (see [518]). Even if she had, there is no evidence that any such request came to the attention of Jayco Corp, and her claimed request would therefore not be materially relevant to the conduct of Jayco Corp. Consumer RH made written requests to Mr Manning of Jayco Corp for a refund or replacement RV on 4 May 2015 (see [532]), 5 May 2015 (see [540]), and 10 May 2015 (see [560]). She also made a written request on 11 May 2015 to Mr Charleson of Jayco Newcastle to entertain a proposal to supply her with another RV of equal value (see [562]), and made a similar request to Mr Butcher in a telephone conversation on 12 May 2015 (see [566]). Those requests culminated in Mr Butcher's email to Consumer RH of 12 May 2015 in which he stated that the RV was repairable, and would be repaired, and in which he requested that Consumer RH bring her RV in for assessment, and otherwise offered to give Consumer RH a changeover price for her RV (see [569]). 800 From Mr Manning's viewpoint, at the time that he received Consumer RH's first request for a refund on 4 May 2015, he had authorised warranty repairs for pre-delivery works on 4 December 2014 to the value of $74.25, and post-delivery on 26 February 2015 and 30 March 2015 to the value of $80.85 and $346.78 respectively, which included items arising from the roof misalignment that caused a strut to damage the tent. On 4 May 2015, Mr Manning arranged for a repairman to attend Consumer RH's RV on-site at Crows Nest in Queensland, and he later organised for Mr Wells to effect repairs at Agnes Water on 7 May 2015. 801 Upon receiving Consumer RH's email request for a refund or replacement of 4 May 2015, Mr Manning sent his response on 5 May 2015, directing her to contact Jayco Newcastle, but also containing a statement about the terms of the warranty being limited to repair of the RV. I have found that Mr Manning's email of 5 May 2015 contravened ss 18 and 29(1)(m) of the ACL because it misrepresented the nature of Consumer RH's rights. Mr Manning's email to Consumer RH of 6 May 2015 was to similar effect. What happened thereafter was that in email correspondence Consumer RH sought authorisation for a replacement roof and skirt, to which Mr Manning responded by stating that an assessment had to be undertaken first, and that he then needed to ask management (see [544] above). Notwithstanding this communication to Consumer RH, Mr Manning was then faced with information from Jayco Newcastle that Consumer RH had claimed that he had authorised a replacement roof and skirt. I have set out the relevant email exchanges recording Consumer RH's claims at [557], [558], [562], and [563] above. Mr Manning's response of 11 May 2015, which I have set out at [561] above, was to direct Consumer RH to the selling dealer in relation to the request in her email of 10 May 2015 for a refund or a replacement RV. 802 Even upon a hypothesis that there was a major failure that entitled Consumer RH to reject her RV, the totality of the circumstances do not support the ACCC's claim that Jayco Corp engaged in conduct that was unconscionable. I find that both Jayco Newcastle and Jayco Corp shared the view that the faults with the RV did not warrant a replacement or refund. The relevant person at Jayco Corp, namely Mr Manning, had the view that the fault with the roof was minor, was easily repairable, and was probably the product of user error. Those views were not shown to have been unreasonably formed by Mr Manning, or to have been formed in bad faith. The warranty work that had been undertaken in February and March 2015 did not inevitably point to a major failure, and whether the problems that Consumer RH experienced while away in May 2015 were the result of a major failure could not be reliably assessed without inspecting the RV. Jayco Corp did not act unreasonably when it responded to Consumer RH's claims by requesting her to take her RV to the selling dealer. This was because it was reasonable to have the RV assessed in a workshop before considering a response, and because the dealer, and not Jayco Corp, was liable to refund the purchase price or replace the RV in the event that there was a major failure. This was in accordance with Jayco Corp's usual practice to refer consumers to the selling dealer, and there was nothing remarkable about this practice. On the contrary, it accorded with common sense and good business practice to have consumer claims assessed by the dealer. Further, the request to have the RV assessed in a workshop was reasonably made having regard to some of Consumer RH's claims as to what Mr Manning had advised her in relation to authorising a replacement roof, which claims I have found were the product of confusion on her part, and not based in fact. Consumer RH did not take her RV back to Jayco Newcastle for assessment, but after lodging her complaint with New South Wales Fair Trading, and after attending a conciliation conference, she decided to trade it in for a different model. 803 The ACCC's claim of unconscionable conduct by Jayco Corp in relation to Consumer RH must be rejected, including upon a hypothesis that there had been a major failure to comply with a statutory guarantee.
Consumer MO 804 The first communication that Jayco Corp received from Consumer MO was the email of 2 February 2014 which expressed disappointment with the RV, stating "not everything about it, just some aspects that need to be addressed". There was no request in that email for a refund or a replacement RV. On 5 February 2014, Jayco Corp responded by requesting that the RV be taken to Jayco Sydney for the concerns to be addressed, and copying that response to Mr Gregorovic of Jayco Sydney. These email communications are set out at [124] to [126] above. 805 Thereafter, on about 14 March 2014, Consumer MO took his RV to Jayco Sydney for assessment following which there was a series of email exchanges between Mr Gregorovic of Jayco Sydney and Mr Manning of Jayco Corp which resulted in Mr Gregorovic's quotation by email dated 21 March 2014 (see [139] above). The requests made by Mr Manning in his emails were consistent with an obvious need to obtain more precise information about the problems with the RV, and the cost of any works that would be necessary to repair it. The requests were reasonable, and unremarkable. 806 On 24 March 2014, Mr Manning requested Mr Gregorovic to obtain a quotation from an independent repairer, RVGO. Mr Gregorovic had earlier suggested RVGO as a potential repairer in his email of 18 March 2014 (see [133] above). 807 Consumer MO then took his RV to RVGO, who reported to Mr Manning on 8 April 2014 (see [143] above) that: (1) the repairer felt that all the issues could be resolved without sending the RV back to the factory; (2) the repairer had informed Consumer MO that his RV had minor problems, but nothing that could not be fixed; and (3) that the consumer was happy, and that he had sent him away to enjoy the vehicle over the Easter break and that he would be in contact with him after ANZAC day. On this basis, on 14 April 2014, which was the Monday prior to Easter, Mr Manning authorised the repairs for which RVGO had quoted (see [145] above). 808 The next relevant events are that following the second collapse of the roof after his Easter holiday, Consumer MO spoke to Mr Bilbija by telephone and at the caravan show at the Rosehill racecourse, and requested a refund or a new RV, the result of which was that on 8 May 2014 Jayco Sydney arranged for Consumer MO's RV to be collected from his home for assessment. I have recounted these events and made relevant findings at [146] to [155] above. 809 When the RV was inspected by Mr Holman, he emailed Mr Manning on 8 May 2014 seeking his advice, as a result of which Mr Manning responded by stating that "Jayco will not be giving owner a new camper or refund". This was elevated by Mr Holman to Mr Bilbija, the dealer principal of Jayco Sydney, who then requested a discussion with Mr Austin of Jayco Corp. Email exchanges ensued, in which Mr Austin identified differences between the quotations given by Jayco Sydney and RVGO, and stated that he could not refer the request for a new RV to Mr Murphy on the information to hand, and that a replacement RV would only be agreed for major structural or safety reasons. By his email dated 13 May 2014, Mr Austin advised Mr Bilbija that the RV should go to RVGO for repairs. These email exchanges are set out at [156] to [164] above. 810 At around this time, Consumer MO had a telephone conversation with Mr Manning about his concerns with his RV, in which Mr Manning told him that he would have to speak to Jayco Sydney about any issues that he was having with his RV, as I have recounted at [166] above. 811 Mr Bilbija stated that when Consumer MO pointed out his issues with the RV at the caravan show at the Rosehill racecourse, they appeared to be quite minor, explaining that they had no bearing on the structural integrity of the RV. Mr Bilbija also stated that after Mr Holman had looked over the RV, he told Mr Bilbija that there was nothing seriously wrong with the RV, and nothing that could not be rectified through repair. Mr Bilbija stated that this was consistent with his initial assessment that the issues were relatively minor and cosmetic, and would not require a refund or a replacement RV. This included the riser arm issue, which Mr Bilbija stated was an easy issue to fix, and was not a major issue. Mr Bilbija stated that he agreed with Mr Austin's views that the issues with the RV were repairable and not major defects, and did not warrant a replacement RV, which in cross-examination he clarified to be a reference to his email to Mr Austin dated 14 May 2014 in which he stated to Mr Austin, "I understand your position" (see [161] above). He stated again in cross-examination that he did not believe at the time that a rebuild or a replacement RV was warranted. He was not challenged about these views. In particular, it was not put to Mr Bilbija that these views were unreasonable or not honestly held. 812 Mr Austin was cross-examined about his decision to authorise Mr Bilbija on 13 May 2014 to have RVGO undertake the repairs. The tenor of that cross-examination was that the reason for his decision was that the RVGO assessment was less expensive, with which Mr Austin substantially agreed. However that was in the context where Mr Austin also stated that he knew that RVGO was a very good repairer of caravans, and that he wanted to get things done in the most efficient way. I do not consider that this cross-examination went anywhere. In particular, Mr Austin was not confronted with any suggestion that his opinions about the nature of the issues with the RV, and that they could be efficiently repaired by RVGO, were not honestly held, or were not formed in good faith. 813 As I have explained above, ultimately Jayco Sydney performed the repair works on Consumer MO's RV itself. Jayco Sydney submitted to Jayco Corp a warranty claim for those repair works on 12 August 2014. That claim was later approved by Jayco Corp, on Mr Austin's instructions. After the repairs were completed, on 17 August 2014 Jayco Corp received the email from Consumer MO setting out the eight sundry items that remained, and requesting a full refund of the purchase price, to which I referred at [170] above. Mr Manning's response, sent on 18 August 2014 (see [172] above), which was copied to Mr Holman, was to request Mr Holman to book the RV in to have the remaining items addressed under warranty, stating that he did not see the matters as requiring a refund. From the perspective of the information available to Jayco Corp, those repairs were completed under warranty at the modest cost of $144.38. No Jayco Corp witness was challenged about the notation in the warranty claim that nothing could be done about the roof alignment, and as I have noted at [185] above, Mr Holman's evidence that the alignment was within normal tolerances went unchallenged. 814 I am not persuaded that Jayco Corp's conduct in relation to Consumer MO was, in all the circumstances, unconscionable. The starting point is my rejection of the premises of the ACCC's claims that Jayco Corp controlled the dealers' decisions in relation to their obligations under the ACL, and that it imposed a requirement on dealers that they had to seek the approval of Jayco Corp before agreeing to a replacement RV or a refund. 815 From Jayco Corp's perspective, it was presented with differing information in April 2014 about the nature of the issues with Consumer MO's RV. It chose to accept a quotation for repairs undertaken by RVGO, which Mr Austin regarded as a very good repairer, that portrayed the issues as being cosmetic and readily repairable, and which informed Jayco Corp that at that time, the consumer was happy. Mr Manning stated in his affidavit that upon receiving the RVGO quotation, he proceeded on the basis that Consumer MO's RV had only minor problems that were easily repaired. In cross-examination, Mr Manning accepted that the quoted works amounted to a fairly significant repair, stating that "it's a lot of hours". Mr Austin stated that he thought that a lot of the concerns were cosmetic items that were only visible from underneath the RV, and that the remaining items were not difficult repairs. While I have taken the view on the totality of the evidence presented to the Court that there was a major failure to comply with the statutory guarantee of acceptable quality, this involved careful consideration of a number of questions of fact and degree by the Court, including whether the reasonable consumer fully acquainted with the nature of the failure to comply with the guarantee of acceptable quality would not have acquired the RV. The case of Consumer MO was not so clear-cut that the only conscionable view of the matter at the relevant time was that there had been a major failure to comply with a statutory guarantee that entitled Consumer MO to reject the goods, and to seek a refund or replacement. 816 There were two material events that occurred subsequent to Jayco Corp's acceptance of the RVGO quotation dated 8 April 2014. The first was the collapse of the roof of the RV following Consumer MO's April trip. The second was Consumer MO's attendance at the caravan show at the Rosehill racecourse where he confronted Mr Bilbija. 817 In relation to the roof collapse, Jayco Corp was reasonably entitled to entertain doubts as to its cause, and to think that it might have been caused by incorrect use rather than a manufacturing defect, which was a view expressed by Mr Austin in comments that he made in an email dated 8 May 2014 (see [159] above), and was a view expressed in evidence by Mr Holman, and Mr Manning. The fact that this question was not explored in the cross-examination of Consumer MO is one of the factors that has led me to conclude that the failure of the riser arm was not caused by user error, but that does not gainsay a finding that at the relevant time Mr Austin reasonably, and at least not unconscionably, entertained the view that user error was a possibility. 818 After Mr Bilbija met and spoke with Consumer MO at the Rosehill racecourse, he became directly involved in the communications with Jayco Corp in relation to the management of Consumer MO's claim. Jayco Sydney, and not Jayco Corp, was liable to Consumer MO to refund the purchase price or to replace the RV in the event of a major failure. Under the legislative scheme, Jayco Corp did not have a de facto liability as if it were the supplier. While I am not satisfied that Mr Bilbija had a perfect understanding of the operation of the ACL, he did have a sufficient understanding that if a failure was serious, the dealer was liable to the consumer to refund or replace the RV, and that Jayco Corp had a liability to indemnify the dealer. This broadly reflected the statutory and commercial framework in which his dealership and Jayco Corp operated. Mr Bilbija made the effective decision to proceed with the repair work rather than replace the RV, or refund the purchase price. No doubt he did so after receiving and taking account of Jayco Corp's views, as expressed by Mr Austin. 819 In relation to the list of sundry items that Consumer MO identified in his email of 17 August 2014, the ACCC has not demonstrated that there was anything unreasonable or unconscionable in treating these as minor residual items that were capable of easy repair. In this respect, there were aspects of the written submissions of the ACCC in relation to Consumer MO that over-reached, including a submission that "Jayco Corp knew that despite many repair attempts, the defects in MO's RV had not been fixed", when in fact there had been one principal set of repairs. 820 Standing back and looking at the accumulation of detail, the ACCC has not demonstrated that the processes in which Jayco Corp engaged in evaluating the claim against its warranty obligations, and its decision to authorise and recommend repairs, and to determine not to replace the RV, were not undertaken in good faith. As I have mentioned already, senior counsel for the ACCC did not allege in closing submissions that there was any conscious bad faith by Jayco Corp, and I have taken that into account. Nor in my opinion did the course of conduct by Jayco Corp in this instance reveal an objective absence of good faith. In relation to the principal set of repairs, Mr Bilbija was involved directly in the decision to repair, and while I find that his decision was informed by Jayco Corp's attitude that it would not agree to a replacement RV, Jayco Corp did not exercise actual control over his decision, or act unconscionably to obstruct Consumer MO's rights.
Consumer JT 821 From Jayco Corp's perspective, the first relevant communication with Consumer JT occurred on 22 December 2015 when Mr Manning called him to discuss his concerns with his RV after receiving a copy of his responses to the online survey. I referred to that conversation at [401]-[402] above. At that time, Consumer JT's RV had been repaired in September 2015, and he complained of "ongoing problems" and sought either a refund or a new RV. Mr Manning responded to the effect "no, we will fix it", and reported the conversation to Jayco Sydney. I do not consider that on the information then available to Mr Manning that this was an occasion on which Jayco Corp was obliged seriously to consider any claim that it had to replace the RV. 822 The next communication occurred in January 2016, when Consumer JT spoke to Mr Rigby of Jayco Corp after he had experienced leaking in the RV following heavy rainfall while he was at Ulladulla. In the first of those conversations, Mr Rigby offered to reimburse the cost of air mattresses (see [410] above). 823 On 20 January 2016, Mr Holman of Jayco Sydney forwarded to Mr Manning of Jayco Corp Consumer JT's email of the previous day to which I referred at [415] above, in which he set out his grievances, and foreshadowed that he would be returning his RV, and sought a new RV or a return of the purchase price. Mr Holman asked Mr Manning, "Please advise on replacement". Mr Manning's response, which I have set out at [418] above, was to request a full assessment and quotation so that he could run it past Mr Morgan for review. Mr Holman then forwarded to Mr Manning some photographs that Consumer JT had sent him. Mr Manning responded by stating that he had let Mr Morgan know that Mr Holman would send a report and a quotation, as the owner wanted a new van (see [420] above). As I stated at [421] above, the evidence does not disclose that Jayco Sydney submitted any assessment and quotation for the purpose of Mr Manning considering a replacement RV. 824 On 22 January 2016, Mr Holman forwarded Consumer JT's email of the previous day in which he stated that he would "not accept any more fixes on this product" separately to Mr Rigby of Jayco Corp, and to Mr Bilbija of Jayco Sydney. Mr Rigby responded by requesting that Mr Holman send through a report of his findings once he had inspected the RV, and suggested that it seemed that the tent sections had not been seasoned correctly (see [428] above). I infer that by about 22 January 2016, Jayco Corp had identified the problem with the leaking bed lids in the 2015 Jayco Expanda models, and sought to develop a fix. This inference arises from Mr Holman's email to Consumer JT to which I referred at [432]. Later, on 27 January 2016, Mr Manning sent an email to Jayco Sydney that referred to the fix, suggesting that it would be released soon (see [438] above), and in an email to Consumer JT dated 1 February 2016 Mr Holman referred to Jayco Corp working on a solution (see [443] above). 825 On 27 January 2016, Jayco Sydney sought authorisation from Jayco Corp to order replacement parts for the leaking tent sections, which Mr Manning approved (see [437]-[438] above). I infer from Mr Holman's email to Mr Rigby and Mr Body of Jayco Corp dated 28 January 2016, to which I referred at [440] above, that Mr Holman was proceeding on the basis that the Consumer JT's RV would be repaired, because he sought that his order for parts be processed urgently. 826 On 28 January 2016, Mr Holman brought the issue relating to the leaking Expanda bed ends to the attention of Mr Bilbija, the dealer principal of Jayco Sydney. 827 Mr Holman's email to Consumer JT dated 1 February 2016, to which I referred at [443] above, stated that he had submitted a report to "Head Office", and that they had denied a request for a new van. This statement is puzzling, because it does not appear from the evidence that Mr Holman responded to Mr Rigby's request of 22 January 2016 to send a report containing his findings, which would be the type of material that would be elevated to Mr Morgan for his consideration, as Mr Holman had been told. As I have noted at [444] above, in cross-examination Mr Holman was not asked to identify from whom he had received that instruction, and there is no written record of such an instruction in evidence in circumstances where there is a considerable body of email communications between Jayco Sydney and Jayco Corp about the management of all claims. Adding to the perplexity is that Mr Rigby's email of 1 February 2016, which attached the service bulletin in relation to the repair to the bed lids was sent at 8.07 am, and Mr Bilbija sent it to Mr Holman at 11.45 am, who then forwarded it to other staff at 11.53 am. Mr Holman's email to Consumer JT of 1 February 2016 was sent at 10:08am. Mr Manning stated in cross-examination that he could not recall whether he was involved in the decision referred to in the email. 828 It appears to me that Jayco Sydney proceeded to order replacement parts, pressing the urgency of the same by Mr Holman's email dated 28 January 2016, because it had been threatened with Fair Trading claims from some consumers, which in the case of Consumer JT was actually lodged on or about 1 February 2016. Mr Holman had also proceeded on 27 January 2016 to obtain a quotation from a contractor for the repair of the fibreglass chip on the bed lid. Those orders for parts and the request for a quotation were made in the week before Mr Holman's email to Consumer JT of 1 February 2016. 829 While Jayco Corp was forwarded emails by Mr Holman that identified that Consumer JT claimed an entitlement to a new RV, I am not persuaded that Jayco Sydney made any express or formal request to Jayco Corp that it build or otherwise supply a new RV for him, or reach some commercial arrangement with Jayco Sydney in relation to refunding the purchase price. I find that from Jayco Corp's viewpoint, such a request, if serious, would usually have come from Mr Bilbija, accompanied by supporting documents and arguments. Rather, Jayco Sydney proceeded to order parts, and sought a quotation from a contractor for repairs, as evidenced by the emails of 23 and 27 January 2016, to which I referred at [434], [436] and [437] above. This activity, and the absence of any response to Mr Rigby's request for an assessment is not consistent with Jayco Sydney contemplating in any considered way that it might supply Consumer JT with a replacement RV, or repay the purchase price. This is confirmed by Mr Bilbija's affidavit evidence in which he referred to the fact that on 2 February 2016 he had been forwarded relevant email correspondence by Mr Holman, and in which he stated that he considered that Consumer JT's issues only needed minor repairs and did not require a refund or replacement RV. These aspects of Jayco Sydney's conduct, as they would have appeared to Jayco Corp against the background that Jayco Sydney had the direct liability to the consumer to refund the purchase price or to replace the RV, are material to evaluating the ACCC's claims that Jayco Corp's conduct was unconscionable. 830 So while I am puzzled as a result of the state of the evidence about the decision of "Head Office" recorded in Mr Holman's email of 1 November 2016 to Consumer JT to deny a request for a new RV, on the assumption that such a decision was made by Jayco Corp, it was not by reference to any seriously considered request by Jayco Sydney for a replacement RV, or to negotiate some commercial arrangement in relation to a refund of the purchase price to the consumer. I find that Jayco Sydney had not formed any intention of entertaining those options. 831 In relation to Consumer JT's telephone conference call with two persons from Jayco Corp to which I referred at [430] and [431] above, I am not able to make a finding as to precisely when this conversation occurred, save that it is more likely than not that it occurred after Mr Holman's email to Consumer JT of 1 February 2016 to which I referred at [443] above, and it may have occurred after Consumer JT's meeting with Mr Holman to which I referred at [452] to [457] above. On the basis of this finding, it occurred after Jayco Corp had developed the fix for the bed lid leak and had issued the service bulletin which estimated that it would take 45 minutes per bed to repair using some basic tools. 832 By 12 February 2016, Consumer JT had decided to allow Jayco Sydney to effect the repairs to his RV, which then took some time. 833 I am not persuaded that the conduct of Jayco Corp in relation to Consumer JT is to be characterised as unconscionable. My main reasons are, first, my finding that as a matter of practice Jayco Corp did not require its dealers to obtain its approval before agreeing to a consumer's request to replace an RV, or to provide a refund. There was a mutual expectation of consultation, but this is consistent with normal and acceptable business behaviour and practice. 834 Second, Jayco Sydney did not ever make any considered, supported request to Jayco Corp for a replacement RV, or for assistance in refunding the purchase price. As I have found, from the early stages Jayco Sydney proceeded on the basis that it was going to repair the RV, and the evidence does not suggest that Jayco Sydney ever seriously entertained replacing the RV or refunding the purchase price. Had it done so, I expect that it would have given consideration to taking the RV back, repairing it under the Jayco warranty, and then re-selling it. There is no suggestion this was ever in Jayco Sydney's contemplation. 835 Third, the conduct of Jayco Corp, as with the other consumers, is to be evaluated on the basis that it had no direct liability to the consumer to replace the RV, or to refund the purchase price, but its direct liability was under its manufacturer's warranty. A liability to refund or replace attached to the supplier under the ACL, Jayco Sydney, as its dealer principal Mr Bilbija understood. Jayco Corp was not in a de facto way liable to the consumer as if it was the supplier. 836 Fourth, the conduct of Jayco Corp is to be evaluated having regard to the circumstances that existed at the time, including that defects with a number of bed lids became apparent to it after the heavy rains of early January 2016 when there were reduced staff in attendance at the Jayco Corp factory, and in circumstances where the research and development team did not return until later in January 2016. Jayco Corp then moved relatively quickly to investigate the problem and to develop a remedy. The initial responses of Mr Manning and Mr Rigby have to be assessed in that context. The initial response of Mr Rigby when Consumer JT called him in early January 2016 had been to offer to refund the cost of replacement mattresses, and the responses to Jayco Sydney included requests to have the RV assessed and to provide a report so that the matter could be escalated to Mr Morgan for review. There was nothing objectively unacceptable about these responses. I find that no report was submitted in support of a request for consideration of a refund or replacement RV because Jayco Sydney did not consider that the relevant failures merited a refund or replacement. Instead, Jayco Sydney elected to order replacement parts, and to request a quotation for a contracted fibreglass repair. 837 Fifth, I do not consider that Jayco Corp acted unreasonably, still less unconscionably, in thinking that it would be able to develop a remedy for the bed lid leaks, and then issuing the service bulletin outlining the repairs that were required. It is notorious that from time to time manufacturers of complex goods, such as motor vehicles, will issue service bulletins to rectify defects in goods that have been discovered as time goes on. Depending upon the circumstances, the reasonable consumer will tolerate some such instances of recalls or warranty work at the instigation of the manufacturer, and I consider this feature of the marketplace to be relevant to determining whether the conduct of Jayco Corp is to be characterised as unconscionable. 838 Sixth, Consumer JT's RV had a number of issues that were in addition to the major leaking that had been caused by the design defect with the bed lids. It is the accumulation of all the issues that has led me to find that the reasonable consumer fully acquainted with the nature and extent of the failure to comply with the statutory guarantee of acceptable quality would not have acquired the RV. Because at the relevant times in January 2016 Jayco Sydney did not undertake and submit to Jayco Corp a full appraisal of all the problems and request a replacement RV, but submitted orders for parts and awaited the fix that Jayco Corp developed, there was no occasion for relevant staff at Jayco Corp to give any serious consideration to a replacement RV, or to some commercial arrangement with Jayco Sydney if the dealer had determined to provide a refund. 839 Seventh, by the time the two Jayco Corp managers spoke to Consumer JT, which I find was on or after 1 February 2016, Jayco Corp had developed its fix for the bed lid design defect, and from the viewpoint of its warranty obligations, I am not persuaded that it was unreasonable for Jayco Corp to take the view that the defect that was the apparent cause of the leaking, could be easily repaired. 840 Eighth, in light of the above circumstances, I am not persuaded that there was any relevant absence of good faith by Jayco Corp, and I am not persuaded that there was in the circumstances any unconscionable obstruction by Jayco Corp of Consumer JT's ability to seek a replacement RV or a refund from Jayco Sydney. Consumer JT did pursue the course of seeking a refund or replacement RV, including by making a complaint to New South Wales Fair Trading, and then meeting with Mr Holman of Jayco Sydney, before agreeing to have his RV repaired.
Consumer TB 841 The primary findings in relation to Consumer TB include that Consumer TB purchased his Expanda RV from Jayco Sydney, and took delivery on 23 May 2013. He had Jayco Sydney and Jayco Canberra attend to repairs of the RV on the occasions to which I have referred at [376] above, and it was subsequently transported to the Jayco Corp factory in Dandenong for further repairs, and returned to Consumer TB in November 2014. I have found that Consumer TB's RV failed to comply with the statutory guarantee of acceptable quality, and that the failure was a major failure because the reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired the RV. I find that the full extent of the failure to comply with the statutory guarantee did not emerge until at least 5 August 2014, at the time at which Mr Holman of Jayco Sydney prepared a quotation for repairs. 842 It shall be necessary to consider further aspects of the interactions between Consumer TB, Jayco Sydney, Jayco Canberra, and Jayco Corp in order to evaluate the ACCC's claim that in the case of Consumer TB, Jayco Corp engaged in conduct that was in all the circumstances unconscionable. 843 From Jayco Corp's perspective, the evidence is that on 8 July 2013, Mr Manning authorised new mattresses for Consumer TB's RV (see [234] above). Otherwise, there is an absence of direct evidence in relation to Jayco Corp approving any warranty repairs by Jayco Sydney in July 2013, or by Jayco Canberra in November 2013. 844 Consumer TB experienced difficulties in his dealings with Jayco Canberra, which was the dealer that he attended for the purpose of repairs in November 2013 and in the first half of 2014. Consumer TB sent an email to Mr Manning of Jayco Corp on 27 February 2014, to which I referred at [241] above, in which he referred to various issues with the RV, and stated that the RV was booked in at Jayco Canberra on 13 March 2014 to make another attempt at repairing the air-conditioning. Mr Manning responded the same day, by sending the email to Jayco Canberra to which Consumer TB was copied, to which I referred at [242] above, which Consumer TB accepted in cross-examination was a proper and prompt response. 845 Thereafter, Consumer TB telephoned Jayco Canberra twice seeking to have his RV assessed before the scheduled booking on 13 March 2014, so that any parts could be ordered. His calls were not returned, as a result of which he sent the email to Mr Manning, which I have set out at [246] above, in which he asked Mr Manning to investigate Jayco refunding the purchase price of the RV. Mr Manning responded the following day on 5 March 2014, blind-copying Mr Bilbija of Jayco Sydney, stating that he could not help with a refund, and that this would have to be done via the selling dealer, as it had the sales contract (see [247] above). Consumer TB then sent emails to Mr Manning on 5 and 12 March 2014 concerning further difficulties that he was experiencing in having his calls to Jayco Canberra returned, and then having the service manager at Jayco Canberra pay attention to his concerns. Mr Manning was responsive to these emails, first asking Consumer TB to keep him updated and later contacting Jayco Canberra himself to advance Consumer TB's repairs. 846 On 29 April 2014, Consumer TB copied Mr Manning into, and also forwarded an email to Jayco Canberra that I have set out at [259] above in which he expressed frustration about its failure to update him about parts, and to repair the air conditioning unit in his RV. Again, Mr Manning responded promptly the following day by sending an email to Mr Lustri of Jayco Canberra asking that he call Consumer TB and have it sorted as soon as possible. 847 On 26 June 2014, Mr Manning corresponded with Jayco Canberra concerning Consumer TB's request to Jayco Canberra (see [262] above) for an extension of his warranty, and a claim for compensation on the ground that the RV had been off the road for extended periods. Mr Manning's response to Jayco Canberra was to extend the Jayco warranty by one month, and to state that all repairs had a 12 month warranty from completion anyway (see [268] above). 848 On 14 July 2014, Mr Manning spoke to Consumer TB by telephone, following which he sent an email to Mr Bilbija of Jayco Sydney which I have set out at [273] above, foreshadowing that Consumer TB would be calling Mr Bilbija about a refund or a new RV. I have found at [299] that during this conversation Mr Manning informed Consumer TB that the decision to replace an RV was one for the selling dealer. 849 In this period at about mid-2014, Jayco Canberra produced three warranty claims to which I have referred at [261], [269], and [282] above, which I find were presented to Jayco Corp for payment. 850 The next relevant course of events commenced on 4 August 2014, when Consumer TB took his RV to Jayco Sydney, and it was assessed by Mr Holman, who prepared a quotation for repairs that Ms Guy sent to Mr Manning (see [284] above). There was then a course of email communications involving, variously, Consumer TB, Jayco Sydney and Jayco Corp in relation to a request by Consumer TB for a replacement RV that he made in his email of 7 August 2014 to Mr Manning to which I referred at [294] above. Mr Bilbija was copied into, or was forwarded, many of those emails, which included - (1) the email from Mr Manning to Consumer TB dated 7 August 2014, and copied to Mr Bilbija, in which he advised Consumer TB that he would normally have to take up a request for a refund or replacement with the selling dealer first, who would then talk to senior management (see [300] above for the full text of the email); (2) the email from Mr Manning to Mr Bilbija and Mr Holman dated 11 August 2014, enquiring whether Consumer TB had called them in relation to his request for a new RV (see [301] above), together with two follow-up emails dated 12 August 2014 (see [302] and [304] above); (3) the later email from Mr Holman to Mr Manning dated 12 August 2014, and copied to Mr Bilbija, in which Mr Holman stated that Consumer TB was wanting a new RV, and that he had been looking into the history, and would present his findings to Mr Bilbija and would contact him (see [306] above); (4) the email from Mr Holman to Mr Manning dated 12 August 2014, copied to Mr Bilbija, in which Mr Holman detailed the issues with the RV (see [303] above); (5) the email from Mr Holman to Mr Morgan dated 13 August 2014, copied to Mr Bilbija, in which he sought assistance with drafting an email to Consumer TB (see [311] above); (6) the email from Mr Morgan to Mr Holman and Mr Bilbija dated 13 August 2014, containing his suggested amendments to the draft email (see [311] above); and (7) the email from Mr Holman to Consumer TB dated 13 August 2014 and copied to Mr Bilbija and Mr Manning, in which Mr Holman stated that the RV was repairable, and that the repairs were not deemed to be major, and did not substantiate a request for a replacement RV (see [308] above). 851 The above evidence shows that there were three occasions on which Consumer TB communicated to Mr Manning and requested a refund, or a replacement RV - (1) by email on 4 March 2014; (2) by telephone on 14 July 2014; and (3) by email on 7 August 2014. 852 On each of those occasions, Mr Manning ensured that Mr Bilbija of Jayco Sydney was made aware of the requests, because he either emailed his reply, or in the case of the request of 14 July 2014, he separately emailed Mr Bilbija advising him of the request. On each of these three occasions, Mr Manning advised Consumer TB that he should make the request to the selling dealer. Mr Manning followed up the third request with Mr Holman by three emails. In response to the third of those emails, Mr Holman advised Mr Manning that he would present his findings to Mr Bilbija, following which Mr Holman prepared his draft email to Mr Morgan, and subsequently copied Mr Manning and Mr Bilbija into the email to Consumer TB of 13 August 2014, advising that the RV was repairable, and that the repairs were not deemed to be major, and did not substantiate his request for a replacement RV. In addition, when Consumer TB raised the question of a replacement RV with Mr Rigby, to which I referred at [625] above, Mr Rigby communicated that request to the supplier sending an email to Mr Holman of Jayco Sydney. 853 I am not persuaded that the conduct of Jayco Corp towards Consumer TB was unconscionable in all the circumstances. The statutory framework of rights and obligations is again relevant in the case of Consumer TB. The respective liabilities of Jayco Sydney, and Jayco Corp were different, and I have rejected the ACCC's claim that there existed a procedure under which dealers were required to seek Jayco Corp's approval before agreeing to provide a refund, or a replacement RV. 854 The course that Jayco Corp proposed and adopted was to take Consumer TB's RV back to its factory for repairs. While that was not the course that Consumer TB preferred, I do not consider that in the circumstances Jayco Corp failed to act in good faith in proposing that it repair the RV at the factory under its express warranty obligations. The impression that I formed from all of the evidence, not only in relation to the four Consumers, was that there was never really any reluctance by Jayco Corp to authorise repairs that were shown to be reasonable. 855 The quality of Jayco Corp's proposal in August 2014 to take the RV back to the factory for repairs rather than providing a replacement RV is to be evaluated in the context of the evidence about how the Jayco RVs were hand assembled at its Dandenong factory. Jayco Corp's conduct in making the proposal is also to be evaluated together with the information that Mr Manning gave to the consumer that he should contact the dealer in relation to his requests for a replacement RV, or a refund. That can hardly be characterised as lacking good faith when, under the ACL, it was the dealer and not Jayco Corp that was liable to the consumer in that regard. Not only did Mr Manning refer the consumer to the dealer, he also notified the dealer of the situation on the three relevant occasions. On the third of those occasions, he actively followed the matter up, seeking to know from Mr Holman what Mr Bilbija, the dealer principal, had decided. Mr Holman informed Mr Manning that he was going to present his findings to Mr Bilbija for a decision, the result of which was Mr Holman's email to the consumer dated 13 August 2014 denying his request to which Mr Manning was copied. Mr Rigby likewise notified Jayco Sydney of Consumer TB's request on 31 October 2014. The conduct and knowledge of Mr Manning and Mr Rigby to which I have referred are to be attributed to Jayco Corp. 856 Rather than obstructing Consumer TB's rights under the ACL to seek a refund or a replacement RV, and asserting an entitlement to attempt further repairs, Mr Manning facilitated the exercise of the Consumer TB's rights by referring him to the dealer, and then deferred to and allowed the dealer to make its own decision. Thereafter, Consumer TB in a broad sense exercised his rights by making a complaint to New South Wales Fair Trading, the result of which was that he was advised that because Jayco Corp had offered to repair the RV, he could not obtain a refund (see [338] above). As I have mentioned, the basis for, and the reasonableness of that advice is not an issue before the Court. 857 The ACCC challenged Mr Bilbija, Mr Holman, and Mr Manning about whether the repairs to Consumer TB's RV were major repairs having regard to the cost of repairs, and the witnesses gave varying answers on that question, that I consider represented honestly held differences of opinion. I do not consider that this line of cross-examination went directly to the real issue, which was not the characterisation of the repairs as being major or not, but whether there was an absence of good faith by Jayco Corp in its appraisal of the RV, having regard to its warranty obligations set against the statutory framework of liabilities.
Part 10: Some final observations 858 The ACCC's case that Jayco Corp engaged in conduct that was in all the circumstances unconscionable has failed for three principal reasons. The first is the rejection of the ACCC's claim that Jayco Corp required its dealers to obtain its approval before agreeing to replace an RV, or to refund the purchase price pursuant to an obligation under the ACL to do so. While there was consultation between Jayco Corp and the relevant dealers which, unremarkably, may have influenced the dealers' response to requests for refunds or replacement RVs, the evidence fell well short of proving control over the dealers' decisions. The failure to prove that element of the ACCC's claim, which would have been significant if it had been established, then informed the basis on which other elements were to be evaluated. 859 The second reason relates to the close attention to all the factual circumstances that is required by the judicial technique referred to in Jenyns. That technique required that regard be had to the information that the relevant employees of Jayco Corp possessed at the material times in relation to each individual Consumer's RV, and to the evaluation of Jayco Corp's conduct in the circumstances existing at the material times having regard to that information. When close attention was given to Jayco Corp's conduct in this way, it was clear that the conduct could not be characterised as unconscionable. 860 The third, and probably the most important reason, relates to the statutory framework of rights and liabilities established by the ACL in relation to the supply of goods and services. The features of the statutory matrix of rights and liabilities under the ACL, and the place of manufacturers' warranties within that scheme, have been referred to at length in these reasons. Under that legislation, Jayco Corp was not directly liable to the Consumers to replace the RV, or to refund the purchase price, in the event of a major failure to comply with a statutory guarantee. Jayco Corp's direct liability was under the terms of its warranty, pursuant to which it was not liable to replace the entire RV, still less refund the purchase price that the consumer paid to the supplier. The rights of the Consumers under the ACL against the suppliers were separate rights, of which Jayco Corp gave notice to the Consumers in its warranty contained in the owner's handbook in accordance with the regulations: cf, Medibank at [334]-[335] (Beach J). The ACCC's claim that Jayco Corp acted unconscionably in not exercising its discretion under the manufacturer's warranty to replace the Consumers' RVs has been rejected for a number of reasons that are particular to the cases of the four Consumers. But standing back, one of the difficulties that the ACCC's claim faced was that it was tantamount to alleging that Jayco Corp was required to assume a direct liability to a consumer to replace goods as if it were the de facto supplier of the goods, in circumstances where the legislation made the supplier so liable. The legislation then had the effect of establishing a commercial setting in which the supplier and the manufacturer might then work out between themselves how the consequential burden of that liability to the consumer would ultimately be borne. Good conscience did not require that Jayco Corp accept additional direct liabilities to consumers which were otherwise not supported by the legislative scheme.
Part 11: Conclusions 861 I have found that Jayco Corp contravened ss 18 and 29(1)(m) of the ACL by Mr Manning's statements to Consumer RH in his email dated 5 May 2015 to which I referred at [533] above. Otherwise, the ACCC has not established its claims. 862 I will hear the parties as to orders. I certify that the preceding eight hundred and sixty-two (862) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.
Australian Competition and Consumer Commission
Jayco Corporation Pty Ltd
[1994] FCA 360
[2005] HCA 55
[2003] HCA 48
(1953) 90 CLR 113
(1989) 17 NSWLR 553
(1985) 160 CLR 583
(1968) 118 CLR 32
(1995) 49 NSWLR 315
One representation contravened ss 18 and 29(1)(m) of the ACL; three RVs subject to major failure entitling rejection; no unconscionable conduct under s 21. Parties to confer on remedies costs and further orders; case management hearing fixed for 4 December 2020.
(1940) 63 CLR 691
[2008] HCA 31
[2010] HCA 31
[2001] HCA 59