Hinterland Outdoors Pty Ltd v Bryan Walters and Joan Walters [2016] NSWCATAP 140 | Case summary

Hinterland Outdoors Pty Ltd v Bryan Walters and Joan Walters [2016] NSWCATAP 140 | Case summary | Zoe

As the Appeal Panel noted in Aceti v Burhan Pty Ltd [2015] NSWCATAP 55 at [25], paragraph 57 of Collins v Urban suggests a cautious and not overly critical approach to the review on appeal of the adequacy of reasons in a decision under appeal. The Appeal Panel in Aceti v Burhan also stated at [26]: "Such a cautious and not overly critical approach would also be consistent with the need to acknowledge the first instance work load in this Tribunal, particularly in the Consumer and Commercial Division, where the daily lists are regularly long, the available hearing times can be limited, and often the parties do not have legal assistance."
Section 62 of the NCAT Act provides that the statement of reasons for the purposes of that section must include: 1. The findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. The Tribunal's understanding of the applicable law, 3. The reasoning processes that lead the Tribunal to the conclusions it made.
Notwithstanding that the reasons provided by the Tribunal were sparse, it was apparent from the submissions made by the parties on the appeal, both in writing and orally at the appeal hearing, that the parties understood the basis of the decision at first instance. Moreover, although we were not provided with the entirety of the evidence adduced at the hearing, or with a transcript, we are satisfied, on the basis of acknowledgments and concessions made during the hearing before us, that we have a sufficient basis to determine the appeal.
The Appellant was represented at the hearing by Mr John Sealie, the manager of the Appellant. The Respondents appeared in person.
The Notice of Appeal did not identify any question of law. The notice identified that the Appellant sought leave to appeal on the basis that the decision was not fair and equitable.
Clause 12(1) of Schedule 4 of the NCAT Act provides that an Appeal Panel may grant leave to appeal from a decision of the Consumer and Commercial Division of this Tribunal: …only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 at [76] the Appeal Panel, by way of summary of relevant general principles, after a review of a number of cases, said in relation to that clause, that: "Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there is a "significant possibility" or "a chance which was fairly open" that a different or more favourable result would have been achieved for the appellant had the circumstance referred to in para (a) or (b) not occurred or if the fresh evidence at para (c) had been before the Tribunal as first instance."
At [84] the Appeal Panel said that: 1. In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact … 2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed …
The Notice of Appeal identifies the basis upon which the Appellant argues that the decision was not fair and equitable as: The Tribunal's Member Ms Moss orders were based on breaches of consumer guarantee as to fitness for purpose and for misleading representation - in evidence and cross examination it was agreed that the van was within all specifications - legal and practically. The misleading representation of tare weight cannot happen as tare weight is determined by the manufacturer and cannot and will never change. Please see "B" "Grounds of Appeal" in this Application.
An Attachment to the Notice of Appeal set out the grounds of appeal in the following terms: The orders made by M/S Moss were based on "misleading representation about tare weight of caravan" the tare weight of the caravan is 1940 kg it was weighed by the manufacturer at 1940 kg and engraved on the identification plate attached to the caravan as per legal requirements, this tare weight has never changed and never will the current tare weight on the amended identification plate is 1940 kg. It was agreed at the hearing by myself and Phil Scott (the Walters appointed expert) that tare weights can change from the point of manufacture to registration with added accessories and some payload water, gas, hot water and bedding. To register a caravan you must have a Commonwealth official weighbridge ticket and blue slip showing the weight, the registration fee is calculated on this weight and shown as tare weight on the registration certificate, the registration certificate is not a legal document nor is it a means of identification, the only legal means of identification is the manufacturers identification plate attached to the caravan. The Walters caravan was weighed for registration with full gas, some water and full hot water hence the difference, it is incorrect of the Roads and Maritime Services to show this weight as tare weight as most caravans are registered with some payload aboard. As for "fitness for purpose" it was accepted by Phil Scott and myself that the van fully loaded was within manufacturers specifications to be towed by the Walters Toyota Prado also agreed was that the current tow ball weight of 200kg unladen was ideal and that the responsibility for loading the van and maintaining ball weight can only be with the owner/user. The tare weight was not "misleading representation" as it has not and will not change, tare weight is determined by the manufacturer at build finish and displayed on the manufacturer identification plate attached to the van. Tare weight is "dry weight" no payload aboard. Tare weight on the registration certificate is only to calculate the registration fee, R.M.S. advise not to store registration certificates in any vehicle. This caravan is 100% legal and fit for the use intended it is one of the best built caravans in Australia.
As we understand these grounds of appeal, they argue essentially that the decision was against the weight of evidence. Notwithstanding that the grounds were not so categorised by the Appellant, we will address them on that basis.
Before turning to the grounds of appeal it is appropriate that we consider whether the Tribunal had jurisdiction to determine the matter. The Tribunal member did not formally determine that the Tribunal had jurisdiction to determine the proceedings. If the Tribunal not had jurisdiction, the failure to so find would have constituted an error of law requiring that the decision be set aside, notwithstanding that the appellant has not identified the absence of jurisdiction as a ground of appeal.
As an Appeal Panel held in Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [12]: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent. See also Aceti v Burhan [2015] NSWCATAP 55 at [30].
As the proceedings were commenced on 2 September 2015 prior to the commencement of the Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW) ("Repeal and Amendment Act") and were not finally determined at the commencement of the Repeal and Amendment Act, the respondent's claim was governed by the provisions of the Consumer Claims Act 1998 (NSW) ("CCA") notwithstanding that that Act was repealed by the Repeal and Amendment Act.
We conclude for the following reasons that the Tribunal did have jurisdiction to determine the Respondents' claim.
The Appellant was a "supplier'" within the definition of s3 of the CCA, that is, relevantly, a person who in the course of carrying on a business supplies goods. Each of the Respondents is a "consumer" within clause (a) of the definition in s3 of the CCA, that is, relevantly, a natural person to whom a supplier has supplied goods.
The claim by the respondents is a "consumer claim" within the meaning of s3A(1) of the CCA, that is a claim by a consumer for the payment of a specified sum of money which arises from a supply of goods to a consumer.
The Tribunal's jurisdiction to make orders with respect to consumer claims generally was limited by s14(1) of the CCA to claims which did not exceed the "prescribed amount", which, pursuant to the Consumer Claims Regulations 2014, was $40,000. However, although the Respondents' claim exceeded that amount, s14(3) of the CCA provided: (3) Subsections (1), (2) and (2A) do not apply in relation to a consumer claim arising from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988.
Sub-section 14(4) of the CCA provided: (4) For the purposes of subsection (3); "new motor vehicle" means a motor vehicle that is not a second-hand motor vehicle within the meaning of the Motor Dealers and Repairers Act 2013.
Section 4 of the Motor Dealers and Repairers Act 2013 (NSW) ("MDRA") defines motor vehicle for the purposes of that Act as: "motor vehicle" means a vehicle of the following kind that is built to be propelled by a motor that forms part of the vehicle, and includes a trailer: (a) any description of vehicle on wheels, other than a vehicle used on a railway or tramway or an aircraft, (b) any description of tracked vehicle, or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway. [emphasis added]
A "trailer" is defined in the MDRA as: "trailer" means a vehicle that: (a) is built to be towed, or is towed, by a motor vehicle, and (b) is not capable of being propelled in the course of normal use on roads without being towed by a motor vehicle, whether or not its movement is aided by some other power source, but does not include a motor vehicle being towed or a trailer having a tare weight of 250 kilograms or less.
A "second hand motor vehicle" is defined in the MDRA as: "second-hand motor vehicle" includes a motor vehicle that, at any time before being offered or displayed for sale, or sold, has been registered to a person other than the purchaser, and includes a demonstrator motor vehicle.
The caravan, the subject of these proceedings, is clearly a "trailer" within the definition in the MDRA and as such a "motor vehicle" within the meaning of the MDRA.
The caravan is not a second hand motor vehicle within the meaning of the MDRA.
There is no suggestion that the caravan was not "used substantially for private purposes" within the meaning of the Motor Vehicles Taxation Act 1988 (NSW). Pursuant to s3(2)(f) of that Act, a vehicle is used substantially for private purposes if it is "used for social or domestic purposes or for pleasure".
Therefore the monetary limitation imposed by s14(1) of the CCA on the jurisdiction of the Tribunal with respect to consumer claims under the CCA is not applicable and the Tribunal had jurisdiction to determine the respondents' claim.
We note at this point that, although s68 of the MDRA provides for a dealer guarantee in respect of the sale of a motor vehicle (as defined in that Act, and thus including the caravan the subject of these proceedings), that guarantee was not sought to be enforced by the Respondents.
Although it is not fully spelled out in the Tribunal Member's reasons for decision it is apparent that the Tribunal Member found in favour of the Respondents on two bases: 1. That the Appellant made a misleading representation concerning the tare weight of the caravan and thereby breached s18 of the ACL, by engaging in misleading or deceptive conduct in trade or commerce; and 2. That the caravan as supplied to the Respondents was not fit for the purpose for which it was supplied in breach of the guarantee provided in respect of the sale of goods to a consumer by s55 of the Australian Consumer Law.
We interpolate at this point that the caravan was clearly acquired by the Respondents as "consumers" within the meaning of that term as defined in s3 of the ACL in that, although the price of the goods exceeded $40,000, the caravan was goods "of a kind ordinarily acquired for personal, domestic or household use or consumption".
It was common ground between the parties at the hearing of the appeal that the basis upon which the Tribunal Member concluded that the Appellant misrepresented the tare weight of the caravan was that the caravan was advertised by the Appellant, and shown on the compliance plate affixed to the caravan, as having a tare mass of 1940 kg, whereas the "tare weight" shown on the Certificate of Registration issued by NSW Roads and Maritime Services was 2060 kg.
The Appellant submitted that the figure shown on the Certificate of Registration does not establish that the advertised tare mass was incorrect. The Appellant submitted that the weight recorded on the Registration Certificate reflects the weight that was recorded at the time the vehicle was submitted for registration, by which time it would have been subjected to testing which involved partial filling of the water tanks.
The Respondents submitted in response: A Certificate of Registration is a legal document provided by the Government Department of Roads and Maritime Services. The definition of TARE MASS as shown in the Vehicle Standard (Australian Design Rules Definitions) is as follows: Mass of a vehicle other than a L-group vehicle ready for service, unoccupied and unladen, with all fluid reservoirs filled to NOMINAL capacity except for fuel, which shall be 10 litres only, and with all standard equipment and any options fitted.
We do not need to determine whether the Appellant's explanation of the "tare weight" shown on the Certificate of Registration is correct.
The Certificate of Registration did not of itself establish that the tare mass was misstated on the appellant's advertising and on the compliance plate. The Respondents led no other evidence to establish that the tare mass was misstated.
Notably, the respondents relied upon evidence from Mr Scott, an automotive engineer, who did not, as far as is disclosed from the parts of his report placed before us, maintain that the tare mass had been misstated.
In our view, this is sufficient to establish that the conclusion that the representation as to tare weight was misleading, was against the weight of evidence. The Tribunal therefore fell into error in deciding that the tare weight was misleading.
We turn to consider the finding that the caravan was not fit for purpose contrary to the guarantee provided by s55 of the ACL.
Section 55 of the ACL is in the following terms: 55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (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; or (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). (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
Mr Sealie, on behalf of the Appellant, acknowledged that he knew at the time of the sale of the caravan that the Respondents intended to tow the van with a Toyota Prado which vehicle had a maximum towing capacity of 2.5 tonnes and a maximum tow bar download weight of 250kg. Mr Sealie also acknowledged that the van was designed and intended for off-road use and that he understood the Respondents intended to use the van for off-road use. Mr Sealie agreed that a logical consequence of that knowledge was that he would have expected the owners at some time to want to tow the van fully laden with full water tanks, full gas bottles and additional fuel in jerry cans which were stowed on either side of the gas bottles at the front of the van.
The Appeal Panel was provided with material which was in evidence before the Tribunal below including a diagram of the layout of the caravan. That diagram showed that the storage space in the caravan was also heavily concentrated at the front of the van.
Mr Sealie asserted in his submissions to the Appeal Panel that Mr Scott, the expert witness called by the Respondents, accepted "that the van fully loaded was within manufacturer's specifications and within legal guidelines set by Toyota Australia to be towed by the Walters' Toyota Prado" and "that the current tow ball weight of 200kg unladen was ideal for towing and that the responsibility for loading the van for travel and maintaining ball weight can only be with the owner/user". However, Mr Sealie did not suggest that Mr Scott disavowed or corrected in any way the evidence set out in his report at paragraphs 4.9, 4.14 and 4.15 which was as follows: 4.9 The current configuration of the vehicle does not allow for the liquid containers as fitted to the vehicle to be fully filled when travelling. When filled to capacity the vehicle would be a minimum of 2288 kg and is over the maximum weight as specified by the vehicle manufacturer at 2240 kg. The vehicle is therefore non-compliant with the vehicle manufacturer's maximum weight and would not legally be able to be towed on a public road. The weight of the vehicle in this situation does not include any items that have been loaded into the vehicle such as food, clothing, crockery, cutlery etc. 4.14 The caravan in its current configuration, and as presented to the applicant as being suitable for towing by their Toyota Prado tow vehicle, is NOT fit for purpose. The weight of the vehicle and the weight distribution by design does not allow for the load placed in the vehicle to be distributed in a manner that would enable the tow ball weight to be maintained at less than 250 kg. 4.15 The storage capacity of the vehicle is predominantly located forward of the axle and therefore the majority of all weight placed in the vehicle will continue to increase the downward load placed upon the tow bar of the tow vehicle and the towing "A" frame of the caravan. The single axle of the caravan is located well behind the horizontal centre of balance in the vehicle. All the liquid storage is located forward of the axle including both water tanks with a total weight of 190 kg when filled. The large storage box at the front of the caravan would also place an additional weight increase to the front of the caravan.
The Appellant's response to these concerns identified by Mr Scott was: 1. That it could have the compliance plate replaced to increase the maximum towing weight to 2.475 tonnes from the 2.240 tonnes stated on the initial compliance plate. Mr Sealie suggested this could be done without any modification of the vehicle. 2. However, even if it were possible or lawful to simply replace a compliance plate to increase the towing weight specified by the manufacturer without modification of the caravan (and we have not considered whether that would be the case), it does not appear to us that replacing the compliance plate would constitute a satisfactory solution. As the Respondents pointed out, the suggested increased towing weight is only marginally less than the maximum towing capacity of the Toyota Prado and they did not purchase a vehicle that was expected to be close to their limit in that regard. They were entitled by reason of the advertised weights and masses of the caravan on which they based their decision to purchase to expect the leeway in respect of towing weights that they were told they were to receive. 3. In respect of the tow ball weight, Mr Sealie suggested that the achievement of the appropriate tow ball weight was simply a matter of redistributing weight. When Mr Sealie was asked how this could occur he suggested that the solutions were for the Respondents to put tools or other heavy items in the ensuite bathroom at the rear of the van or to move the fitted water tanks to the rear. He said they should generally ensure the caravan was loaded so that the weight was more towards the rear of the van to alleviate the tow ball weight. This would mean them storing items in places other than where they were designed to be stored when the caravan was in use. Apparently they were to do this every time they wished to tow the caravan. 4. This solution is quite inconsistent with the supply of a caravan with pre-designed and installed storage facilities. The idea that the Respondents should remove, before every trip, their tools from the dedicated tool storage area at the front of the caravan and place them in the ensuite bathroom when towing the vehicle is both - 1. manifestly impractical and inconvenient; and 2. inconsistent with the sale of a vehicle with a dedicated tool storage area.
Moving the water tanks would seem in any circumstances to be a significant alteration of the vehicle and not one the Respondents should be expected to accommodate. The Respondents were shown a factory-built caravan and were entitled to and did understand that it would be fit for the purpose of being towed off-road fully loaded, ie with full water tanks, full gas tanks and the usual accessories, by a Toyota Prado. That was the disclosed purpose for which the Respondents acquired the caravan. In our opinion, for these reasons and the reasons given by Mr Scott, the caravan is clearly not fit for that purpose.
We therefore conclude that the finding of the Tribunal Member in respect of the guarantee of fitness for purpose is not against the weight of the evidence. To the contrary, it is, in our view, clearly correct. It follows that the decision of the Tribunal Member was correct and the Appeal, were leave to appeal to be granted, would be dismissed.
By reason of the finding that the decision below was correct, we cannot conclude that the Appellant may have suffered a substantial miscarriage of justice, notwithstanding our conclusion that the representations as to tare mass made by the Appellant were not proved to be misleading or deceptive. Accordingly, by reason of clause 12(1) of Schedule 4 to the NCAT Act, we would refuse leave to appeal.
The orders we make are: 1. The Application for Leave to Appeal is refused 2. The Appeal is dismissed.

Hinterland Outdoors Pty Ltd v Bryan Walters and Joan Walters

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