defendant. Orders: (1) Respondent to pay first applicant $360; (2) All other claims of the applicants dismissed; (3) No orders as to costs (Orders).
Key principles
The applicants bear the onus of proving, on the balance of probabilities, that the goods breached the consumer guarantees of acceptable quality and fitness for purpose (Findings...
Where competing expert and lay evidence is in dispute, the Tribunal must resolve credibility and probability; here the Tribunal preferred the evidence that water ingress resulted...
Evidence of subsequent aggravation of damage by the owners (keeping the wet trailer closed for months) is relevant to remoteness and the scope of any remedy and may reduce or...
Repairs undertaken by the supplier do not of themselves constitute acceptance that a manufacturing fault existed, nor does collection of goods necessarily constitute acceptance...
Issues before the court
Did the camper trailer fail to meet the consumer guarantee of acceptable quality under s 54 (ACL/ACLFTA) due to water ingress and mould?
Were the applicants entitled to reject the goods and obtain a full refund?
Plain English Summary
The Cauchis purchased a new camper trailer and after one trip discovered mould and water damage months later. They claimed the seller supplied a trailer with a faulty front seal and sought a full refund. The seller said the owners had closed the trailer with the pvc draft skirt trapped outside the rubber seal, allowing rain to enter, and that subsequent failure to open and dry the trailer aggravated the damage. VCAT preferred the respondent's witnesses and STP's expert evidence, found no manufacturing defect proven, dismissed the refund claim, but ordered the respondent to pay $360 to reimburse labour performed shortly after delivery. No costs ordered.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
What remedies were appropriate for any proven loss?
The applicants, Sam and Josephine Cauchi, bought a new camper trailer from Best Choice Imports Pty Ltd (trading as Lumberjack Camper Trailers) after viewing it at an outdoor expo. Delivery/handover occurred on 4 February 2018 at the respondent's premises in Coopers Plains (VCAT application ¶3-4). The applicants used the trailer once on a trip to Renmark (early March 2018). On return they put the trailer away in their shed in closed form and did not open it again for several months. When they next opened the trailer in late July 2018 they found extensive mould and water damage to internal canvas, cabinetry and carpeting (VCAT application ¶6, Hearing evidence).
The applicants engaged CRS (Caravan Repairs & Service) to inspect the trailer. CRS reported that water tracks and dust lines behind the front seal evidenced a faulty rubber seal permitting ingress; CRS concluded mould and other damage were consistent with seal failure and recommended replacement of canvas, cabinetry and seals (CRS report ¶11-14). The applicants sought a full refund of the purchase price plus associated losses (VCAT application ¶8, ¶15-16).
The respondent denied liability for manufacturing defect and contended the owners had closed the trailer incorrectly, with the pvc draft skirt protruding and trapped outside the front rubber seal during closure. The respondent produced an independent inspection (Specialised Trailer Products, STP) which identified permanent creasing of the weather strip/pvc skirt consistent with being pinched under the rubber seal and concluded the damage pattern was more likely caused by that misuse than a faulty seal (Respondent's documents; STP report ¶5-9).
Multiple directions resulted in inspections and correspondence. The trailer spent periods in the respondent's possession for repairs; the parties disputed the scope and adequacy of repairs and the applicants eventually collected the trailer (procedural history). VCAT heard the matter on 15 October 2019 and Member B. Josephs delivered written reasons and orders on 10 September 2020: the Tribunal ordered the respondent to pay $360 to the first applicant and dismissed all other claims; no costs were ordered (Orders).
Why the court decided this way
The Tribunal's decision pivots on (1) burden of proof, (2) credibility assessments, and (3) comparative weight of expert evidence.
Burden and legal framework: The Tribunal framed the dispute as a consumer guarantees case under the Australian Consumer Law (ACL as adopted in the Australian Consumer Law and Fair Trading Act 2012). The applicants bore the onus of proving, on the balance of probabilities, that the trailer breached the guarantees of acceptable quality and fitness for purpose (Findings [2]).
Credibility and witness evaluation: The Tribunal assessed lay and expert witnesses and made explicit credibility determinations. It described the applicants' oral evidence as equivocal and lacking strong conviction on the crucial matter of whether the pvc skirt was exposed upon closure (Findings [6]). By contrast, the Tribunal found Mr Blair (the respondent's sales and repairs manager who had inspected the trailer and performed repairs) "vitally compelling and credible" and accepted his evidence that a pronounced crease in the pvc skirt had been observed when the trailer was first opened for repairs and that he had reported this as the likely cause of ingress (Findings [9]-[10]). The Tribunal also found Mr Anderson (STP) to be a compelling and credible expert, and preferred his explanation that the pattern and extent of internal water damage was consistent with the skirt being trapped outside the seal rather than with a defective rubber seal (Findings [14]).
Forensic gaps in the applicants' evidence: The Tribunal criticised CRS's investigation as not conclusive. CRS had not performed definitive non-destructive tests on the seal (such as a pressured hose test or smoke test) and CRS's witness struggled under cross-examination to explain how a seal defect could be established in the absence of visible seal damage (Findings [11], [14]). The Tribunal therefore considered the applicants had failed to discharge their onus.
Aggravation of damage: The Tribunal inferred that the trailer had been left closed for prolonged periods (between March and late July 2018, and again from late August to the directions hearing) and that this delay in airing the wet canvas had aggravated the damage. That aggravation made restoration to 'like new' more difficult and was relevant to remedies (Findings [7], [15]).
Given these assessments, the Tribunal concluded the applicants had not proved a manufacturing defect and therefore had no entitlement to reject and refund. However, it accepted a limited claim for six hours' labour ($360) which had been incurred early on and acknowledged by the respondent's representative (Findings [15]).
Before and after state of the law
Before this decision, the legal framework was already established: consumer guarantees under the ACL (acceptable quality, fitness for purpose) and remedies (repair, replacement, refund, damages) are the statutory scheme. The Tribunal applied settled principles: the plaintiff bears the onus to prove breach on the balance of probabilities; factual causation and remoteness are crucial in assessing entitlement to remedies; credibility and weight of expert evidence are determinative where experts disagree.
This decision does not alter legal doctrine. Instead, it illustrates application of those settled principles: where competing expert opinions and credibility findings favour the supplier, rejection and refund will not follow. The decision reinforces that proof of defect requires sufficient investigatory testing and reliable expert evidence; lay assertions and photographs alone may be insufficient when the supplier obtains persuasive contrary expert and contemporaneous evidence of misuse.
Key passages with plain-English translation
"The applicants carry the onus of proof to establish their case on the balance of probabilities..." (Findings [2]).
Plain English: It was the applicants' job to persuade the Tribunal, more likely than not, that the trailer had a manufacturing defect that breached the consumer guarantees.
"I found the evidence of Mr Blair to be vitally compelling and credible... he found the crease in the pvc skirt... and he regarded this as the reason for the water ingress..." (Findings [9]).
Plain English: The Tribunal believed the respondent's technician. He saw a permanent crease showing the pvc draft skirt had been trapped outside the seal and said that explained how rain got in.
"Having accepted both Mr Blair's evidence... I cannot find the camper trailer was not of acceptable quality... I am, however, satisfied that the respondent should reimburse Mr Cauchi the sum of $360..." (Findings [15]).
Plain English: Because the Tribunal preferred the supplier's evidence, the trailer was not found faulty. Still, the Tribunal ordered a small reimbursement for labour the applicant reasonably spent early on.
"I agree that the collection of the trailer by the applicants does not constitute acceptance of its condition. Similarly, I do not regard the repairs undertaken by the respondent as constituting an acceptance by it that a manufacturing fault caused the unrepaired damaged items..." (Findings [4]).
Plain English: Picking the trailer up later and the supplier doing repairs do not mean either side admitted the trailer was or was not defective.
Comments on investigative testing: the Tribunal noted hose and smoke tests as non-destructive methods to detect seal failures (Findings [14]).
Plain English: Practical tests could have helped decide if the seal leaked; absence of such testing weakened the applicant's expert case.
What fact patterns trigger this precedent
This decision is most directly relevant where:
A consumer alleges water ingress/damp-related damage to a recreational vehicle, tent or canvas product soon after purchase.
There are competing expert reports attributing causation either to manufacturing defect (seal failure) or user misuse (improper closure, trapped weather strip), and the Tribunal must resolve credibility and causation.
The owner did not open or ventilate the item after suspected wetting and the question of aggravation arises.
The supplier produces contemporaneous evidence (repair technician reports, quality audits, handover records) and an expert who can explain how a user-action (e.g. trapped skirt) could produce the observed pattern of damage.
There is absence of definitive, non-destructive testing to prove seal failure.
In those fact patterns, this decision shows that a Tribunal will weigh evidence for credibility, require convincing expert method and testing for latent defects, and may deny rejection if misuse is more probable.
How later courts have treated it
The decision is a VCAT decision at first instance and in the provided judgment there is no discussion of subsequent appellate treatment or citation in later authorities. Accordingly, there is no information in this judgment about how higher courts or later tribunals have treated or applied these particular findings. Practitioners should check legal databases for any subsequent citation or appellate consideration.
Still-open questions
Definitive testing for latent seal defects: The Tribunal observed that non-destructive tests (hose under pressure, smoke testing) could have provided clearer proof. Where experts disagree, the absence of such testing can be fatal to a defect claim. Parties should consider commissioning or agreeing to such tests early in dispute resolution and ensure experts carry them out under Tribunal timetables (Findings [14]).
Timing and mitigation: The Tribunal accepted that keeping a wet trailer closed aggravated damage. The extent to which mitigation obligation (open and dry) reduces remedies is a fact-sensitive issue. Future disputes will need clear timelines and evidence of what owners did after noticing moisture (Findings [7], [15]).
Handover evidence and documentary proof: The Tribunal relied on contemporaneous quality audits and internal checklists; however, there was contested evidence about whether a hard copy user guide was actually handed over. The interplay between documentary proof and recollection continues to matter in handover disputes (Findings [12]).
Expert scope and methodology: The decision highlights the importance of experts being able to explain their methods and to carry out conclusive testing if available. An expert opinion based on visual inspection alone may be insufficient where precise causation is contested (Findings [11], [14]).
Remedies for partial or aggravated loss: The Tribunal awarded a modest reimbursement despite dismissing the main claim. The principles for allocating limited remedies where some early expense is admitted but the central defect claim fails could be explored further in subsequent cases for guidance on proportionality and the quantum of partial awards (Findings [15]).
Practical takeaways for practitioners: assemble contemporaneous evidence at handover; commission definitive non-destructive testing where ingress is alleged; document mitigation steps promptly; and prepare to address credibility issues on key witnesses, particularly any employee witnesses who might be called by a client.
Judgment (31 paragraphs)
[1]
Cauchi v Best Choice Imports Pty Ltd (Civil Claims) [2020] VCAT 1005 (10 September 2020)
[2]
Purchase of camper trailer by applicants from respondent - used shortly after purchase for interstate trip - when driving home encountered heavy rain - camper trailer not checked upon return - remained closed in garage for next four months - upon reopening, extensive water damage including mould discovered - some repairs undertaken by respondent - respondent refused to undertake all repairs requested by applicants - applicants sought refund - liability denied by respondent for water damage - refund request denied - applicants alleged faulty seal - respondent alleged misuse by applicants caused water damage as trailer not properly closed upon return from trip - sections 54 - 57, 259 - 263 and 271 - 273 of Australian Consumer Law and Fair Trading Act 2012
Cauchi v Best Choice Imports Pty Ltd (Civil Claims) [2020] VCAT 1005
[5]
The respondent is to pay to the first applicant the sum of $360.
All other claims of the applicants are dismissed.
No orders as to costs.
[6]
The applicants live in Logan Village, Queensland. The respondent has premises at Coopers Plains, Queensland but its principal place of business is Bell Park, Victoria, near Geelong.
The applicants filed their VCAT application on 31 August 2018.
According to the application, on 1 September 2017, the applicants purchased from the respondent a new camper trailer and associated items. This arose out of their attendance at the Shepparton Showgrounds at the Shepparton Great Outdoor and 4x4 Expo at which the respondent was a participant.
Although delivery was expected within 6 to 8 weeks, the purchased items were not received until 4 February 2018. The handover of the camper trailer occurred on that day at Coopers Plains. The applicants had been informed that the handover, which included a demonstration about how to set up the camper trailer, would take between one and two hours. However, they maintained that the handover was completed after about 20 minutes.
Shortly after delivery, the applicants encountered some problems. The remote control was not working but the respondent's representative at the handover assured them that this would be rectified. The decals started to peel and a new set was posted to the applicants. A metal hinging bush was missing, the breakaway control was not manufactured correctly, the brakes were not working properly, and low quality grease had been used. The respondent instructed Mr Cauchi to deal with these issues. Additionally, the applicants stated that using the stabilising legs prevented the opening of storage compartments in the body of the trailer.
The applicants used the camper trailer once but when preparing for the second trip, they opened the trailer and discovered that the canvas was badly mould affected. Upon contacting the respondent, they were advised that the camper must have been packed away whilst it was wet and was not covered by warranty.
The applicants arranged for an independent camper trailer and caravan repairer, Caravan Repairs & Service (CRS), to inspect the trailer. Upon inspection, CRS opined that a faulty seal was the cause of the water entering the trailer rather than it being packed away wet.
The total claim was $30,901, being a full refund of the purchase price of $29,999, replacement of damaged pillows and sheets of $149, six hours of repairs' labour by Mr Cauchi of $360, and fees and costs.
[7]
At this hearing, at which the applicants appeared and Ms Therese Esteban, operations manager, appeared for the respondent, an order was made adjourning it for further directions on 13 March 2019. This order also recorded that it was made because the respondent had agreed to replace the canvas full cabin and annex, which was being imported and was expected to be available in the week commencing 4 March 2019, and the parties had agreed that the applicants would take the trailer to the respondent's premises in Cooper Plains to have the canvas full cabin and annex fitted and to enable the respondent to thoroughly inspect the trailer.
It was also ordered that, in the meantime, the applicants would make a full list of all the defects in the trailer as far as they were concerned and would send the list to the respondent by 28 February 2019.
[8]
Applicants' email to respondent dated 26 February 2019
[9]
This email was forwarded to Bruce Blair who was the sales and repairs manager for the respondent in Queensland and who was its representative at the handover.
It set out a list of items that needed to be replaced, according to the applicants, due to moisture and mould damage. The items were all cupboards, both mattresses, full annex, main seal, plastic cover between cupboards and bed, king-size right-hand angle at feet of bed, flooring, table frame, laminex throughout, rusty gas strut near refrigerator door, rust on cargo cage, mould in TV cupboard, rust on queen size bed hinge foot end, mould on straps for queen size bed mattress, mould underneath the queen size bed on the outside, rust on wheel arch, mould on the steel steps, and rusty handbrake screws.
[10]
Respondent's email to the applicants dated 8 March 2019
[11]
On 8 March 2019, Ms Esteban forwarded an email, the first two paragraphs of which read:
[12]
"Please find below my comments in reply to the up and coming VCAT hearing to be held on 13 March 2019 via telephone conference. Please find attached images of works completed in relation to the above VCAT reference.
[13]
It was agreed at the hearing that the applicant would provide us with a list of works that needed to be completed. Please note at this point we had not had the opportunity to view the trailer to make our own assessment. The applicant sent the list of damages through via email. We have addressed and fixed the items that we believe were a direct result of the alleged water damage due to a faulty seal. This list also included general wear and tear items, which were not warranty items or a direct result of the claim, however we worked on the items also."
[14]
Ms Esteban then set out a list of the items referred to in the applicants' email of 26 February 2019 and responded to, or detailed the actions taken, as appropriate, for each item. In this regard, she stated that the respondent had replaced both mattresses, the full annex, the main seal, the rusty gas strut near the refrigerator door, mould in the TV cupboard, carpet, rust on queen size bed hinge foot end, mould on straps for queen size bed mattress, and mould underneath queen size bed on the outside. The respondent had also repaired the king-size right hand angle at feet of bed, rust on cargo cage, mould on steel steps, and rusty handbrake screws.
Next to the remaining items in the list, being the replacement of all cupboards, flooring, table and frame, and laminex throughout, Ms Esteban had noted "see below comments." The remainder of her email then read as follows:
[15]
"Comments regarding items above making reference to "See Below Comments":
[16]
2 August 2018. The applicants initially contacted us with an issue of mouldy canvas (image of mouldy canvas provided only at this point), decal, bushes issues and toolbox misalignment.
21 August 2018 an independent report was produced showing cabin timber damage, floor damage, table damage where the timber had warped and the laminate had come away from the timber. This was submitted in the VCAT claim.
It was given as evidence that the applicant had left the trailer closed from when the initial damage was noticed until the hearing on 10 December. The applicant knowing that there was, at this stage, mouldy canvas and dampness in the cabin area.
The applicant was asked by the Member to open up the trailer to avoid any further damage as requested by the Respondent.
Attached A attachment.pdf shows the initial cabinet damage, very minor.
Attached images showing the current state of the timber and floor upon us receiving the trailer for repair. IMG-130.JPG shows the direct relevant image provided in the initial independent report. The damage to the timber is significantly greater.
[17]
We believe that the applicant not opening the trailer to air it, from 2 August to 21 August knowing that there was dampness in the cabin has been the direct result of the items above numbered 1,7, 8, 9.
[18]
We have not replaced these items, as they were not included in the initial claim and were not damaged at the time of the independent report dated 21 August 2018."
[19]
Prior to the directions hearing, the applicants emailed the respondent on 12 March 2019, in which they reiterated that the CRS report clearly stated that the seal at the front of the camper was the cause of the water damage and they indicated that they were willing to extend the repair time for items 1,7,8, and 9 until end March 2019, failing which they required a full refund.
The directions hearing proceeded the next day by teleconference with Mr Sam Cauchi representing the applicants and Ms Esteban again representing the respondent.
When the Tribunal provided written orders arising out of this directions hearing, it also set out in the document, prior to the actual orders, matters which it had specifically noted from the hearing. These matters included:
that pursuant to the orders made at the directions hearing on 10 December 2018, the respondent had possession of the camper trailer, the applicants had sent to the respondent a list of 18 items that concerned them, the respondent had performed work on the camper trailer, the applicants had last seen the camper trailer on 5 March 2019 at which time the scope of work which the respondent was going to perform had not been completed, on 8 March 2019 the respondent had informed the applicants in writing about the work it had performed on 14 of the items and had confirmed that it had not rectified items 1, 7, 8 and 9 because it denied it had any liability to do so as the applicants had caused the damage to those four items, and the applicants had denied that they had caused such damage;
the parties were now at an impasse and agreed that they needed a binding decision by the Tribunal;
the trailer was still in the possession of the respondent at Coopers Plains;
the applicants were still seeking to reject the camper trailer and receive a refund of the purchase price and, accordingly, they would not take possession of it;
the issue in the proceeding was essentially whether the camper trailer supplied by the respondent met relevant consumer guarantees in the Australian Consumer Law which therefore focussed the issue on the condition of the camper trailer at relevant times;
as such, the applicants' case was not about alleged misrepresentation by a salesperson in the negotiation of the sale;
[20]
This report was obtained by the applicants following upon an inspection, at their request, of the camper trailer by a representative of Caravan Fix on 13 May 2019.
After a visual inspection, the items identified in the report as requiring urgent attention were all timber cupboards, doors and wall panelling which needed new edge banding, cupboard doors and frames which required replacement as they had expanded and peeled due to being wet, all hardware including hinges had started to rust, all table legs had corroded and started to rust, the floor was lifted by the entry door due to penetration of water, and the rear carpet under the bed end had dislodged due to screws penetrating into it. Attached to the report were identifying photographs.
The author of the report, who was ultimately not called to give evidence at the hearing, envisaged that further water damage would exist and would be identifiable once the timber work was dismantled to carry out the above listed repairs.
[21]
CRS again inspected the camper trailer at its workshop on 7 May 2019 to provide an update opinion regarding the damaged internals of the camper trailer along with required repairs.
The camper was fully opened by CRS and it noted the following damage:
the underside of the forward bed mattress was water stained and required replacement;
the edge banding to the wall panels on the internal tub of the trailer had released from the edges of the panels, and this was evident around the entire trailer tub and to repair this would include full replacement of the edge banding around all cabinetry;
the front cabinetry face panels being the cupboard door closest to the door side entry and the two drawer fronts are delaminating on their faces and edges and all hinges, latches and latch strikers along with drawer slide runners and screws are corroding which would require replacement of the cabinetry and fixtures;
the laminate floor is swollen and bowed in the door side entry, which moisture damage has also affected the edge mould between the floor and camper cabinets;
to determine the full extent of damage and required repairs in respect of the floor indicated that it would need to be removed and re-laid which may involve the removal of internal furniture;
the table legs were corroded and required replacement;
the carpet was coming away from the foldout floor/base and would need to be reglued;
if mould was found under the carpet, it would require full replacement.
CRS confirmed that it had not costed the required repairs to the camper trailer as it was not prepared to undertake and warrant the work and otherwise reiterated its opinion that the damage was consistent with the water ingress described in its first report.
As at 14 May 2019, the respondent had not received a copy of the orders from the directions hearing of 13 March 2019. On that date, Ms Esteban sent a short email to the Tribunal seeking a copy of the orders. However, that email had been the last in a chain of emails which had passed between the parties during the period of 10 April to 1 May 2019 and, accordingly, these were also received by the Tribunal.
In an email of 10 April 2019 to Mr Cauchi, Ms Esteban confirmed that she had ordered replacement doors for the trailer which would take some time as they needed to be made at factory and shipped to the respondent from China. Otherwise, the respondent was satisfied that it had completed the works required pursuant to the orders of 10 December 2018.
[22]
Email from the applicants to the Tribunal dated 1 October 2019
[23]
The applicants informed the Tribunal that pursuant to a request on 11 July 2019 by the respondent, they had collected the camper on 13 August 2019 and it was now back at their home.
After collection, the applicants took photographs of the damage not repaired. These photographs were attached to this email and were stated by them to show the following:
the corner quad was coming away from the floor and cupboard because they had swollen and moved it;
damage was present below the cupboard doors which had only appeared since the respondent had changed them and similar damage would continue to become apparent throughout the camper as the timber was swelling resulting in the glue losing its adhesion;
laminate was peeling off the cupboards and off the side wall panelling due again to the timber swelling and affecting the glue;
internal cupboards were swelling and were starting to come apart;
the cupboard doors had been replaced with doors that were too short;
the corroded latches and table legs had not been replaced and most of the screws had rust on them;
on the side of the camper, the stickers were again starting to peel or bubble and, as such, they either had not been changed or were again a poor quality sticker;
the floor had swollen and had visibly pushed upwards.
The applicants concluded that the respondent had not correctly repaired the camper.
[24]
Respondent's documents received by the Tribunal on 7 October 2019.
[25]
These documents were the defence together with the quality audit for the camper trailer, user guide, warranty and care guide, order record, and expert report obtained from Specialised Trailer Products (STP).
The defence read as follows:
[26]
"After inspection of the trailer to conduct the repairs listed in the Claimant's claim, it was evident that the trailer had been closed incorrectly.
[27]
At time of handover on the (sic) 4 February 2018 we had the trailer opened in our showroom and we closed the trailer with the Claimant and explained internal and external functions of the trailer.
Documents provided at time of handover: Customer receipt, compliance certificates for gas and electrical, user guide and warranty and care guide.
When the trailer was returned for our works to be done in March 2019 it was evident that the draft skirt on the inside of the trailer had been closed on the outside of the trailer. The pvc skirt has multiple clear crease lines caused by compression. When the trailer is closed with the pvc skirt outside of the trailer the water will leak into the main cabin.
When the trailer was returned a second time in June 2019, the trailer had been closed again with the pvc draft skirt compressed outside the trailer between the front seals. This was inspected and reported on by an independent assessor Specialised Trailer Products and the report is attached.
[28]
Damage was caused inside the cabin from misuse not from any manufacturing defect."
[29]
The quality audit of the camper trailer was completed on 22 January 2018. It confirmed the model, vin, build identification, identity of builder, and identity of auditor. The camper trailer had scored 87% in the audit before the completion of required rectification actions. These actions were then completed. The audit had found that a shackle was missing, the right-handed turn and tail wires were around the wrong way, and touch up paint had to be applied to the spare wheel carrier. The audit then identified and confirmed the options that were to be part of the appellants' camper trailer and confirmed that each of the individual items constituting the camper trailer and set out in its quality control checklist had been approved. It also checked and confirmed required inclusions were in the camper trailer. Relevantly, this last section referred to a handover kit being located inside a kitchen side toolbox drawer. There were four photographs also included as appendices to the quality audit document.
The hard copy user guide contained four separate sections being Setting Up, Utilities, Packing Down, and Pole Diagram.
The warranty and care guide was comprised of warranty terms and conditions, waterproofing the camper trailer canvas, maintenance, and charging the battery. Among other matters, the maintenance document noted:
do not pack the camper trailer away if it is still wet or soiled;
the canvas can become covered in mould, mildew or stained by corrosion within a few days;
if the canvas is wet when packing up, then unpack and set it up to dry as soon as having arrived home or reached the next destination;
after every outing, an inspection of the tent is required for damage and state of cleanliness as if it is dirty, failure to clean it could result in rotting or stains;
if the canvas gets mould on it, irrespective of the amount, rectification of it is required as soon as possible with a mould treatment in the form of a mould and mildew remover.
The order record indicated that Mr Blair had attended to the pre-handover requirements. He had initialled and dated the sections relating to payment which showed that the applicants had paid in full by 31 January 2018. On 1 February 2018, he had also initialled and noted that the vin and documents to be provided had all been cross checked and included in the camper trailer. These documents were shown as the invoice, gas certificate, user guide, and warranty and care/maintenance guide.
[30]
I heard this matter on 15 October 2019 and reserved my decision. Chris Cauchi, son of the applicants, was their advocate. Mr and Mrs Cauchi each gave evidence along with one of their daughters, Adrienne. Ms Esteban appeared for the respondent and also gave evidence.
It became apparent early in the hearing, despite the orders made at the directions hearing on 13 March 2019, that neither party had considered calling any other witnesses.
I therefore sent the parties out to contact the authors of their expert reports to ascertain their availability to give evidence at the hearing by telephone. After making these enquiries, Chris Cauchi confirmed that Samantha Larsen, daughter of John George of CRS, would give evidence but no evidence would be called from Caravan Fix. Ms Larsen is a technician at CRS and had been involved in both inspections by CRS. Ms Esteban confirmed that Mr Anderson from STP would also give evidence.
Sam Cauchi initially gave evidence which was largely in accordance with his documentation already filed and served in the proceeding. However, it is appropriate to specifically refer to some parts of his evidence, as follows:
he and his wife had been in Shepparton visiting their daughter when they decided to attend the Expo;
they had retired and had been wanting to travel around Australia including off road;
when they saw the respondent's camper trailer at the Expo, they were impressed by its appearance and spoke with a salesperson for the respondent;
the salesperson had told them, in response to Mr Cauchi's direct questioning, that the camper trailer was fully Australian made, which was important to him as he did not want to buy an imported product;
both Mr and Mrs Cauchi agreed to purchase the camper trailer on the day and Adrienne also agreed to purchase the same model camper trailer for herself;
when he attended the handover at Coopers Plains with Mr Blair, he was surprised to find the applicants' trailer closed. Mr Cauchi then asked for the trailer to be opened. However, Mr Blair told him to look at another trailer down the back of the premises, which was the same model as they had purchased and which was opened. While he did this, Mr Blair was connecting the applicants' trailer to Mr Cauchi's car but was finding it difficult to do so, as he did not have the required tools. Despite any delays caused by this problem, the handover did not extend beyond half an hour;
[31]
After the hearing concluded, Ms Esteban forwarded correspondence to the Tribunal. There was no order for written submissions and it was inappropriate for this correspondence to have been sent. I have not read the correspondence but it is necessary to place on record that it was received.
The applicants carry the onus of proof to establish their case on the balance of probabilities. Their case falls for consideration within the consumer guarantees of acceptable quality and fitness for any disclosed purpose, with particular reference to sections 54 and 55 of the Australian Consumer Law and Fair Trading Act 2012 , and in the event of discharging their onus, consideration of the remedies available to them with particular reference to sections 259 - 263 thereof.
I have already set out in these reasons, in some detail, the evidence and submissions of the parties and witnesses. The parties remain firmly in dispute. The overall evidence also lacked some clarity about the timings, dates and sequence of some events.
I agree that the collection of the trailer by the applicants does not constitute acceptance of its condition. Similarly, I do not regard the repairs undertaken by the respondent as constituting an acceptance by it that a manufacturing fault caused the unrepaired damaged items and the current condition of the camper trailer.
At the time Sam Cauchi gave his initial evidence, I regarded him then as having done so to the best of his recollection, but his evidence about dates and events was equivocal and uncertain.
The evidence given by each of Sam and Josephine Cauchi about the closure of the camper trailer, prior to commencing their return from Renmark, cannot be directly rebutted. However, I found their evidence generally on this integral issue, and specifically about whether or not the pvc skirt was exposed upon closure, to have been given without strong conviction. Rather, it was framed in terms more of what they believed that they would have done and why.
Parties
Applicant/Plaintiff:
Cauchi
Respondent/Defendant:
Best Choice Imports Pty Ltd
Legislation Cited (1)
Consumer Law and Fair Trading Act 2012
AI Analysis
Outcomedefendant
Disposition:
Orders: (1) Respondent to pay first applicant $360; (2) All other claims of the applicants dismissed; (3) No orders as to costs (Orders).
Supporting documents were forwarded with the application. There were photographs each of the decals peeling off, the area from which the hinging bush was missing, and the operation of the storage cupboard door.
There was a depiction of the camper trailer fully open and the mould affected areas on the internal roof and side canvas together with individual photographs of the mouldy camper canvas cover, internal canvas window, internal sidewall canvas, internal left window, internal right window, and internal roof canvas.
Also included with the application was the report of CRS dated 14 August 2018. CRS is in Underwood, Queensland. The report followed an inspection of the camper trailer by John George, director of CRS, who along with his workshop technicians, had a combined industry experience and knowledge of 30 years. He was the author of the report. The camper trailer had been taken to CRS on 10 August 2018 by the applicants. They sought the opinion of CRS about how water had entered the camper causing internal damage.
Upon inspection of the camper in the folded down position, it was evident to CRS that the rubber seal along the front of the trailer tub had not been sealing. The forward fold door was raised and it was clear that water had been getting past the seals with water "tracks" in the surface dust and debris on the vinyl floor behind the seal.
According to CRS, this had resulted in mould in the canvas tent but only on the forward half of the tent and the rear fold floor carpet. CRS also noted that the internal forward cabinetry was swollen from water ingress and the door latches and trim fixings were corroding. CRS also stated that if the applicants had folded the camper closed with a wet tent, the mould would have been located over most of the tent and not just the section described.
There were photographs included in the report relating to identified affected areas. According to CRS, repairs it believed necessary to return the camper trailer back to a usable/new condition were replacement of the mouldy canvas (mould cannot be cleaned from canvas), removal and replacement of the rear fold carpet, investigation of the floor underneath the carpet to determine if it was damaged and if so, it was to be repaired, removal and replacement of the damaged front cabinetry (including the corroded latches and hinges), replacement of the corroded sail track fixings, and replacing the leaking rubber seal.
When lodging the application, the applicants also provided copies of the purchase documents and three letters passing between them and the respondent at the beginning of August 2018.
On 1 August 2018, the applicants wrote a lengthy letter of demand to the respondent which included information subsequently set out in the application. Additionally, it said there was mould on a major portion of the canvas, king-size mattress, cupboards and on the marine grade carpet and some parts of the cupboards were swollen. It also stated that they had repaired the breakaway control, rectified the brakes and had purchased better quality grease and applied it themselves. The hinging bush was noted to have been missing from the left wheel. The applicants asserted that at all times since owning the camper trailer, it had been in a shed when not being used, they had only used it once, and they had taken particular care to ensure that when they packed it away, the canvas had been completely dry. They also maintained that they had neither been given a user manual nor were made aware that there was one, only to recently discover that they needed a password, which had not been supplied to them, to obtain it from the respondent's website. Given all the issues which they had encountered, they sought to return the trailer and obtain a full refund.
The applicants again wrote to the respondent on 3 August 2018 repeating the request for a full refund and that they were rejecting to have the goods repaired.
On 4 August 2018, Ms Stanley of the respondent emailed the applicants confirming that it was more than happy to rectify any manufacturing defects on the trailer. In relation to the toolbox door she stated that it appeared that it needed a slight realignment but the respondent was confused about the complaints relating to the stabilising legs and it sought information about how the stabiliser legs were being used.
Ms Stanley also advised that the decals had been in a batch received which had not had sufficient adhesive. However, she noted about the mouldy canvas that the applicants had previously advised another employee of the respondent that they had returned from a trip during which the canvas had become wet. She stated that there did not need to be much moisture and only slight humidity for mould to grow and reaffirmed that, unfortunately, the canvas repair was not covered under warranty.
Ms Stanley did apologise if a user guide had not been received in their handover kit, as at the time of their handover, the respondent did not have a digital copy online so they should have received a hard copy. She then requested that they download the user guide online and she provided the password. On behalf of the respondent, she concluded by thanking the applicants for making the small repairs to the trailer that needed rectifying, such as the breakaway, the bush, and the brakes.
The purchase documents supplied by the applicants included a compliance certificate relating to the installation of gas fittings, a certificate of electrical safety, an Australian Government import approval for the trailer, and the purchase contract which included a list of the associated items.
the Tribunal can only make decisions on the basis of evidence and therefore the authors of any expert reports must give evidence at the hearing with the parties being entitled to cross-examine the other party's witnesses;
given the potential costs involved, the parties were to advise the Principal Registrar in writing by 21 June 2019 if they intended to have any witnesses appear by telephone.
The orders made provided for the applicants and any expert to have access to the camper trailer for the purposes of performing any non-destructive tests and providing a report. Additionally, they contained a timetable for the parties to serve any expert reports and reaffirmed the requirement for the parties to jointly advise the Principal Registrar in writing by 21 June 2019 if they intended to have any witnesses appear by telephone. Finally, a hearing date for 2 July 2019 was fixed with an estimated duration of one day.
However, due to technical difficulties encountered during the directions hearing, the respondent had been unable to fully participate. This was confirmed in an email sent by Ms Esteban to Mr Cauchi and to the Tribunal late on 13 March 2019. In this email, Ms Esteban stated that the respondent had complied with the initial orders made on 10 December 2018 to replace the cabin tent and annex.
Additionally, she stated that any additional works were not subject of the initial orders but, despite this, the respondent did make repairs to the trailer in accordance with the list provided by the applicants, without an order to do so, as a gesture of goodwill. She also noted that due to being unable to fully participate in the hearing, she had been unable to advise the Tribunal that the respondent could order the cabinet doors from the supplier which would take approximately 12 weeks to receive but these additional items were also beyond the scope of the initial orders.
The applicants then emailed the respondent on 19 March 2019, that in each of their letter of 1 August 2018, the CRS report and the list of defects they had appropriately informed the respondent of the nature and extent of the damage to the camper trailer and that it was unreasonable for them to be required to wait a further 12 weeks for the respondent to rectify issues.
Additionally, they expressed concerns with the quality of workmanship that had recently been undertaken as they stated that the respondent had washed mouldy components instead of replacing them and, in this regard, they specifically referred to the carpet under the queen size mattress and soft furnishings which had only been washed. They also reiterated that replacing just the cabinet doors would not fix all the damage as the camper still needed replacement of the cupboards, floor, table and frame, and the laminex throughout and as the faulty seal was the cause and the camper would never be restored to its original state as purchased they still sought a full refund.
She requested that, in the interim, Mr Cauchi contact Mr Blair to arrange for the applicants to collect their trailer from the respondent as it no longer had sufficient space to store the trailer at Coopers Plains. According to Ms Esteban, other than the door replacement, no more works were required to be undertaken on the trailer and it could still be used while waiting for the doors and the respondent had worked through the applicants' list of repairs out of good faith and without being required to do so. In this regard, she also again noted that prior to the respondent having received the applicants' repair list, it had not had an opportunity to inspect the trailer nor to make its own assessment of the causes of the water damage.
In an email sent on 15 April 2019, Mr Cauchi stated that it was apparent that the respondent was not going to complete the applicants' list but that while they were happy to collect the trailer due to the lack of space, this was not to imply that they were accepting the camper in its then current state. On 1 May 2019, Mr Cauchi again emailed Ms Esteban enquiring if the respondent still wanted the trailer collected.
The hearing fixed for 2 July 2019 was adjourned to 15 October 2019.
STP is located in Bellmere, Queensland. Its report is dated 10 June 2019. The author of the report is Nathan Anderson. He confirmed that the respondent had requested that he assess the applicants' camper trailer in relation to build quality and whether it could have contributed to the ingress of water through the front section of the roof seal. During his assessment, he witnessed the correct procedure to open and close the camper roof. He also inspected a new display camper trailer of the same type as a comparison. He could not see any build defects or design flaws in either of the two camper trailers.
Upon inspecting the applicants' trailer, he noticed permanent creasing of the weather strip that is connected internally between the front of the body and the mating face of the roof. He also compared this with the condition of the weather strip in the display trailer which had no evidence of creasing. Included in the report were a number of photographs, each separately captioned. The first photograph is captioned as showing how the trailer was returned to the respondent's showroom. It depicts incorrect closure as the pvc strip is protruding through under the rubber seal.
The second page of the report is comprised of five photographs and two captions. Two photographs are captioned as showing the condition of the pvc strip after opening, soon after the trailer was returned to the respondent's showroom. There were distinctive crease marks left in the pvc where the pvc has been pinched under the rubber seal.
The remaining three photographs on the second page of the report are captioned as showing how the trailer should have been closed. It was closed correctly as the pvc strip is pulled back out of the way and not protruding through under the rubber seal.
Mr Anderson noted the rubber seal had been replaced by Mr Blair. The original seals were found to be still in good condition but replaced out of goodwill. Mr Anderson regarded the creasing on the weather strip as having been caused by being pinched under the rubber seal during the closing of the roof. During the correct closing procedure, it was evident, based on the user guide, that the weather strip must be tucked out of the way to avoid pinching, and he found this to be quite easy to achieve during closing. The sealing of the rubber seal on the applicants' trailer would have failed due to the weather strip obstruction and allowed water to ingress inside the trailer resulting in the damage to the cabinetry and other internals. Mr Anderson could not see any issues with the build quality of the applicants' trailer and he considered its quality to be within industry standards and comparable to other brands in the market. As to the remaining four photographs in the report, they were captioned as showing how the camper trailer roof is designed to seal and Mr Anderson concluded his report by stating that it was the responsibility of the applicants to ensure that the canvas and pvc strip were clear of the seal when closing.
the applicants' first and only trip in the camper trailer was to Renmark;
during the drive back from Renmark, but before they arrived home, they had for a period of time driven through some pelting rain. Upon their arrival home, Mr Cauchi put the trailer into their shed;
when they opened up the camper trailer to go on another trip, they found extensive mould on the top half of the canvas;
they then contacted John, a salesperson for the respondent in Geelong;
after informing John about the mouldy canvas at the front of the camper trailer, John said that they must have closed it up when it was wet and they would not be covered under the warranty;
he was not given a user guide at handover and he first became aware that there was a user guide when attending the first directions hearing when he was told by Ms Esteban to download it from the respondent's website;
he explained his claim for labour costs as being for the significant amount of work that he had to undertake to rectify the various problems. He believed his estimate to be conservative. He did not have any formal engineering qualifications but he had significant past employment experience undertaking mechanical works on trucks;
the camper trailer had always been under cover at the applicants' house;
they had never closed the trailer with any part of the skirt or seal remaining outside which was just common sense to them;
after he found that the mould under the mattresses had only been washed, he informed Mr Blair who then replaced the mattresses;
the applicants are not prepared to use the camper trailer again due to concerns about mould and its potential safety risks to family members;
when he initially returned the camper trailer for the canvas to be replaced, Mr Blair had said to him words to the effect that the respondent should just scrap the camper trailer and give the applicants another one;
under cross-examination by Ms Esteban, he agreed that after speaking with John, the first written notification to the respondent about the water damage was in his letter of 1 August 2018;
he also agreed that the camper trailer had been closed up after returning from the first trip until it was opened prior to the proposed second trip and that then CRS undertook their first inspection a fortnight later. He also did not dispute the proposition that, as referred to in the initial orders of 10 December 2018, it was again closed at the time of that first directions hearing;
when they put the camper trailer straight into their shed upon their return from Renmark, the weather was dry and sunny:
Josephine Cauchi then gave some evidence in which she relevantly stated:
she did not always travel with Mr Cauchi when he took the trailer to Coopers Plains;
the applicants' garage is only big enough to store a camper trailer that is closed;
the applicants drove to Renmark around 4 March 2018 and returned around 7 March 2018. It would have then been opened up again around 30 July 2018;
she would have helped Mr Cauchi close the trailer after Renmark and would have made sure that the skirt was packed inside, not only because it was common sense, but also they would not have been able to properly latch down the top part of the camper trailer if the skirt was hanging out;
on any future holidays, they will be staying in motels.
Chris Cauchi then informed me that on the day before the hearing, on 14 October 2019, he contacted Mr Blair who no longer works for the respondent but who had undertaken most of the repair works on the camper trailer. He also stated that at the conclusion of the second inspection at CRS, the camper trailer was unable to be closed and they had to request Mr Blair to attend CRS to assist.
Both Sam and Chris Cauchi then stated that the camper trailer would not close at CRS because the actuator was faulty. Mr Blair had to take the camper trailer back from CRS to repair the actuator. According to Sam, he repaired the actuator as it was under warranty just before he left employment with the respondent which they thought was on 26 May 2019. Chris Cauchi had also spoken with Mr Blair about the repairs and had indicated they were not happy with them. According to them, Mr Blair indicated that he had tried to get some quotes to undertake work on the cabinetry but he had been told by the head office of the respondent that he was not to undertake any more repairs on the camper trailer.
Adrienne then gave evidence in which she relevantly stated:
both she and her father had been under the same impression from the representations made by the respondent's salesman at Shepparton that the camper trailers were manufactured in Australia;
it was not until the directions hearing on 10 December 2018, when Ms Esteban informed them, that they became aware that the camper trailer was fully imported from China but constructed in Australia;
like her parents, she would not have purchased the camper trailer if she had known that was the case;
she has not had the same issues with her camper trailer and has undertaken some travel in it;
however, she has had some concerns about its overall quality and she was not given a user guide at handover:
she needed to obtain the password and she downloaded the guides from the respondent's website;
Mr Blair then gave evidence. He was also in Queensland. Relevantly, Mr Blair stated:
he replaced the actuator before he left employment with the respondent and this occurred on a date after the second investigation by CRS;
he agreed that on the first occasion he dealt with the camper trailer upon its return to Coopers Plains, he had said to the applicants words to the effect that the camper trailer should be scrapped for spare parts and they should be given a new camper trailer;
the cabinets had not been repaired by the time he left the respondent because he had been told by head office to stop the work;
he had been involved working with camper trailers for about five years overall prior to ceasing work with the respondent;
in relation to his comment about why the camper trailer should have been scrapped, he explained that he had said it because it had a lot of water inside and so much was being replaced that it would have been more appropriate to have provided the applicants with a new trailer and used their camper trailer for spare parts;
he had performed a lot of warranty work and maintenance on camper trailers in the five years working with them;
when he first commenced any repairs on the camper trailer he observed a very clear and permanent fold/crease in the pvc skirt which made it evident that it had been left hanging out and that was the reason for the water ingress and internal damage;
in relation to the carpet underneath the mattresses it had been washed with bleach and water which kills the mould spores but, otherwise, new carpet had been put back into the camper trailer;
his practice, including with the applicants' camper trailer, when undertaking warranty and repair work was to send to Ms Esteban before and after photographs of work being undertaken from various angles;
when he removed the seal there were no visible defects or imperfections, no splits, cracks or compression issues and he replaced it with the same type of seal;
the crease line in the pvc skirt was very visible;
he had advised Ms Esteban that the reason the problem occurred was because of the pvc skirt hanging outside the trailer and this would have led to the level of mould that was encountered;
he would never close the camper trailer with pvc skirt hanging out;
when he replaced the allegedly faulty seal, he put it into another trailer which was used in displays and trade shows;
all camper trailers are hosed from the front to test the seals;
his practice at handovers was always to have the camper trailer closed when the purchasers arrive;
he remembered undertaking the handover with the applicants and it was usual practice that he opened and closed the camper and undertook a walk around and then attached it to the towing vehicle and this usually all took around 30 minutes.
The final witness for the applicants was Samantha Larsen. In her evidence, she relevantly stated that:
she had worked for the past five years with CRS and had built up considerable experience and knowledge in the warranty and mechanical work that she had undertaken;
she had worked on both inspections and reports for the applicants;
she regarded the seal on the trailer as being faulty resulting in water travelling under it, evidence of which was apparent in the photographs in the first report which showed water marks and dust lines near the seal;
she did not recall seeing any creases or fold marks in the pvc skirt;
the top section of the canvas was wet but not the bottom section and there was mould on the rear carpet and this was damage less consistent with a faulty front seal and more consistent with likely damage if the pvc skirt had been hanging out of the trailer when closed;
CRS could not warrant any repair works or provide any repair cost estimate given the considerable repairs required, the full extent of damage still having been unknown, and likely difficulties in obtaining some parts;
the hourly labour rate of CRS is $100;
mouldy carpet should be replaced as washing it would not guarantee hygiene and sanitisation;
she acknowledged that she did not see any splits, cracks, or other defects in the seal nor any indications of problems with type, size, adhesion or compression;
however, this was not unusual to her as she had past experience with water ingress due to a faulty seal despite there being no visually obvious problem with the seal;
After Ms Larsen finished her evidence, both Sam and Chris Cauchi stated that they had made a number of attempts to ascertain likely repair costs but no one was prepared to quote even a "ballpark" figure unless the camper trailer was dismantled in order that plumbing and wiring and the conditions below the floor and behind the cabinetry could be fully inspected. They were also informed that the camper trailer would present greater difficulties in repairing due to the significant access problems to damaged areas.
Ms Esteban then gave evidence in which she relevantly stated that:
Mr Blair had informed her, upon first opening the camper trailer, about the clear crease in the pvc skirt;
despite this, the respondent had attempted to work through the list of repairs of the applicants and had tried to repair as much as it could, without regard to liability issues and out of goodwill;
the respondent's quality control documentation supported its position;
the applicants were provided at handover with the user guide and the care and maintenance guide. These documents made it clear that when closing the trailer, seals must be inside and after concluding a trip, the trailer should always be opened up and checked inside;
it would never have been represented by the respondent that the camper trailer was fully manufactured in Australia. All its employees had been instructed to inform parties that it had been assembled in Australia;
the trailer was assembled in Geelong and was then transported to Queensland by truck. Once received, Mr Blair called the applicants and arranged handover;
Mr Blair had ticked off in the internal order form that the handover kit of documents was provided;
the quality control audit confirmed that seals were intact and appropriately compressed;
the applicants received a hard copy of the user guide at handover as the user guide was not in a download version until after June 2018;
all certificates, pole plans, and guides were in the trailer;
Mr Cauchi had actually rung her about a user guide and, at the stage that he had done so, it was explained to him that it could then be downloaded;
in Geelong, at handovers, the respondent's practice is to have the camper trailer open when the customer arrives and then the opening and closing process is demonstrated and any walkaround is undertaken;
Mr Blair had a different practice which was to have the trailer closed when purchasers arrived and he would then open and close the trailer in their presence. She had no reason to doubt Mr Blair's evidence that the handover with the applicants was fully conducted and completed;
the only way that the rain encountered by the applicants during their drive back from Renmark could enter the trailer like it had, was if the pvc skirt was left hanging out. Otherwise, this would not have occurred in rainy conditions and any moisture would have just settled outside it;
the camper trailers were sequentially made in batches of six and each of the camper trailers purchased by the applicants and Adrienne were from the same batch;
any faulty seal would likely have been present in other camper trailers in the batch;
the water had entered the trailer in the manner and to the extent that it had due to the pressure created by driving into heavy rain which had pushed the water into the trailer with the pvc skirt outside it;
any alleged brake issues had not been addressed as they had not been raised in the applicants' list;
not every inclusion in the trailer is photographed in the audit. The handover kit of documents did not appear in the appendix 4 photograph as it would have been in the other of the two kitchen slide drawers. However, each component, item or inclusion in the trailer was either listed, ticked or photographed in the audit.
Sam Cauchi then interceded to state that he had put three cut marks on the seal before the respondent undertook repairs, as he knew it was meant to be replaced and it was his checking mechanism to ensure that it was replaced. He claimed that he utilised the same practice prior to having mechanical repairs undertaken on his motor vehicle so that he could also ensure in that situation that part(s) said to have been replaced had in fact been replaced. He therefore questioned why no mention of these marks was made by Mr Blair and he expressed concerns about the thoroughness of his inspection and works and that the seal was now in the display trailer. This comment was extremely surprising, both as to its content and timing, and to my direct questioning, he was unable to give any convincing answer about why he had not referred to it in evidence or to Mr Blair.
Mr Anderson of STP then gave evidence. Relevantly, he stated that:
he is a sole trader and has been the proprietor of STP since it commenced business in October 2017;
he is a qualified sheet metal tradesperson/fabricator and a qualified mechanical cabin designer with over six years' experience working with recreation vehicles and high-end distributors;
prior to his inspection and report, he had not had any direct contact with the respondent but has been a designer for its China-based manufacturer;
his inspection was at the respondent's showroom and in addition to the applicants' camper trailer he had available to him a new camper trailer with which he could make comparisons:
Mr Blair was also in attendance and showed him how to open and close the camper roof and provided background details;
his understanding was that the pvc skirt had been poking through the camper trailer and from photographs inside the trailer the crease in the PVC skirt was evident;
if the weather strip is sticking out, water will enter the trailer and the seal and lip will be prevented from working properly;
two strips of metal affect the amount of compression and size of seal required to trap water or dust;
five to six mms of compression is sufficient to stop the ingress of water or dust;
there was no difference in the type of sealing between the applicants' trailer and the other trailer and no apparent problem with the seals;
he did not design these camper trailers as they are an existing design;
he did not have an opportunity to examine the original seal and relied upon what he was told by Mr Blair;
he agreed that if the seal had been incorrectly fitted it was possible there would be some water ingress;
he regarded the respondent's quality check to have been of a high level and it would have been extremely unlikely not to have detected any problem with the seal;
after the manufacturing is completed, the gap between the seal and what is behind the body sheeting cannot be adjusted;
if the seal was not correctly fitted, water could only have entered very slightly and any misalignment would have been obvious;
he undertook his inspection on 23 or 24 May 2019;
Mr Blair opened and closed the trailer using the remotes;
the seal has to be of a certain profile and the seals he saw had not altered in their profile or size;
if he had not seen pvc skirt poking through, he would have had the seal tested;
there are two ways in which the seal could have been tested in a non-destructive manner. The first would have been to hose it down outside the trailer under pressure and then inspect to see if any water was present. The second is to fill the cabin of the trailer with a smoke machine and a hole in the seal would be evident if smoke came out;
in the absence of any visual defect, the seal needs to be tested to detect any fault;
if a rubber seal was faulty, the outcome would be little puddles of water sitting around it in the gap with the body sheeting as there would be nowhere else for the water to move;
the significant amount of water and multiple locations of damage was consistent with the pvc skirt hanging out.
Putting aside presently the manner in which the camper trailer had been closed prior to departure from Renmark, I infer from the overall evidence that it is more probable than not that the camper trailer remained closed between 6 or 7 March 2018 and 30 or 31 July 2018 and thereafter more likely from later in August 2018 to 10 December 2018, the date of the first directions hearing. I also have little doubt on the evidence that this has aggravated the damages.
The evidence of Josephine Cauchi was not extensive, but it assisted in being able to clarify with greater probability the extent of closure of the wet camper trailer. Antoinette's evidence was uncontroversial.
However, I found the evidence of Mr Blair to be vitally compelling and credible. It was given from a position of independence. Unfortunately for the applicants, he was their witness and it would seem that he was not properly proofed about his evidence. It appeared that the applicants and Chris Cauchi decided to call him to give evidence as soon as he indicated that he believed the respondent should have simply replaced the camper trailer for the applicants and used their purchased camper trailer for spare parts. Despite confirming that he had this view, when he explained it in his evidence, it was soundly based and had no impact on the issue of liability.
Mr Blair was even and consistent in his presentation including in the face of the more aggressive questioning of him by Chris Cauchi as he moved further through his evidence and it became unfavourable to the applicants' case. Most relevantly, I accept that he found the crease in the pvc skirt when he first opened the trailer to commence repairs, that he informed Ms Esteban as early as possible about this discovery and that he regarded this as the reason for the water ingress and resultant damage.
Samantha Larsen was also a credible witness as I have no doubt that she answered questions to the best of her knowledge, experience and recollection. However, while never becoming aggressive, she clearly found it difficult to deal with the quite robust cross-examination by Ms Esteban about how CRS investigated the crucial issue of whether there was any defect in the seal and, in the absence of observing or identifying one, how CRS could justify its findings. She also obviously struggled to give any meaningful response about the compression of the seal issue. The force and content of her evidence overall were not sufficiently strong or compelling as the only expert witness for the applicants.
Ms Esteban clearly knows and understands her product, but she was somewhat glib and dismissive in certain of her responses, particularly to suggestions of any deviation by the respondent's staff from its usual business practices. As with the issue of the applicants' evidence about the closure of the trailer prior to returning from Renmark, it is difficult to directly refute the contents of the pre-handover documentation including the internal order and quality check audit. However, Ms Esteban had the benefit of the supportive evidence given by Mr Blair about contentious issues such as the conduct of the actual handover and the presence of the user and care and maintenance guides in the camper trailer pre handover.
It is necessary to consider the effects on my findings, if any, of Sam Cauchi's evidence given towards the end of the applicants' case about having made the cut marks in the seal. It was unhelpful to the applicants and my assessment of Mr Cauchi's credibility as a witness was adversely impacted. On any view, it had an element of desperation to it.
I found Mr Anderson to be a compelling and credible witness who was also prepared to make concessions where appropriate. He impressed as having a strong knowledge of the camper trailer and its workings even though it was not a product that he designed. Most importantly, I accepted his evidence, in preference to the prior evidence, that the nature and extent of the water ingress and internal damage was consistent with the pvc skirt having been exposed upon closure and was not consistent with a faulty seal, together with his reasoning for this conclusion. He also supported Mr Blair's evidence about the permanence of any crease made in the pvc skirt once it had been caught under the rubber seal.
Having accepted both Mr Blair's evidence about his finding on the pvc skirt and Mr Anderson's evidence and explanation as to the more probable scenario, together with the lack of any compelling evidence about a defect in the seal and the lack of any inference that the respondent caused the pvc skirt to be exposed upon closure, I cannot find the camper trailer was not of acceptable quality and was not fit for purpose. I am, however, satisfied that the respondent should reimburse Mr Cauchi the sum of $360 which is reasonable for the repairs undertaken by him at the request of the respondent shortly after he took delivery of the camper trailer and as acknowledged in Ms Stanley's email.
I also cannot find that any of the repairs undertaken by the respondent were not properly completed as there was no evidence on this issue. I have accepted that any repairs the respondent was ordered to undertake have been properly completed. I also accept that any repairs not undertaken and the current condition of the camper trailer do not relate to any manufacturing fault.