Jarmain v Market Direct Group Pty Ltd t/as MDC Camper Trailers & Offroad Caravans [2022] QCAT 375

Fair Trading Act 1989 (Qld), s 15, s 16, s 50A, s 50C

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 11A, s 38, s 52, s 102, Schedule 3

Queensland Civil and Administrative Tribunal and Other Legislation Amendment Act 2019 (Qld), s 5

Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5, s 8

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672

Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10

Barton v Bridgeman & Anor [2020] QDC 16

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Effem Foods Ltd v Nicholls [2004] NSWCA 332

Ferraro v DBN Holdings Aust Pty Ltd trading as Sports Auto Group [2015] FCA 1127

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Howarth & Anor v Biscamoss Pty Ltd [2022] QCATA 72

Knox v Tait Motors Pty Ltd t/as Tait Auto Group [2021] QCATA 87

Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465

Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369

Peter Bennett Cars v Lyree-Jo Vodanovich [2020] QCATA 88

Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426

• [1] Mrs Jarmain filed an Application - Motor Vehicle Dispute[1] seeking orders for a refund or a new caravan against MDC Camper Trailers & Offroad Caravans (the Application). Mrs Jarmain relies upon section 50A of the Fair Trading Act 1989 (Qld) (FTA).
• [2] Mrs Jarmain attached to the Application a copy of an invoice evidencing the purchase of an XT15HR Caravan (the Caravan) for a total of $54,140.00 (the Invoice).[2]
• [3] A copy of an ASIC search has been filed.[3] It reveals that the ABN on the Invoice belongs to Market Direct Group Pty Ltd (MDG). An online ABN search reveals that MDC Camper Trailers & Offroad Caravans is a registered business name owned by MDG.
• [4] Mr Zammit agreed that the Tribunal record should be amended to record the proper name of the respondent is Market Direct Group Pty Ltd trading as MDC Camper Trailers & Offroad Caravans.
• [5] Mr Zammit also accepted that although the Caravan was made available for collection by Mrs Jarmain in Sydney payments, with the possible exception of the initial deposit of $1,000 made by credit card, were received by MDG at its bank located in Brisbane.[4]
• [6] At the oral hearing, Mrs Jarmain clarified that she sought a refund of the purchase price upon a rejection of the Caravan based on a major failure of the guarantee of acceptable quality and an order for costs. Mrs Jarmain did not pursue orders for damages for amounts incurred to repair or replace parts.
• [7] MDG says Mrs Jarmain is not entitled to a refund and that MDG is prepared to carry out repairs to the Caravan. It says that the Caravan was of acceptable quality, the issues which arose were due to a lack of appropriate maintenance after delivery, Mrs Jarmain did not clearly reject the Caravan and if she did, she did not reject it within the rejection period.
• [8] Mr Zammit confirmed that the Caravan is in MDG's possession and also confirmed that although MDG's Response filed 28 October 2021[5] seeks to claim $50 per day for storage from the date Mrs Jarmain 'directed' it to cease work,[6] MDG does not pursue such a claim. I note that as there is no evidence that MDG paid the relevant filing fee the counter-application was not before the Tribunal.[7] I do not consider MDG's claim for storage costs.

Does the Tribunal have jurisdiction to order a refund against a supplier of a motor vehicle under the Australian Consumer Law (Queensland) (ACL(Queensland)) where the purchase price is $54,140?

• [9] I find that the Tribunal does not have jurisdiction to order a refund against a supplier of a motor vehicle, where the purchase price is $54,140.
• [10] Although MDG did not dispute the Tribunal's power to make an order for a refund, if I made the relevant findings, which it contends should not be found, I must satisfy myself that the Tribunal has been conferred with the power to hear and determine such a claim.
• [11] The Tribunal is required to find its power to hear and determine disputes in either the Queensland Civil and Administrative Tribunal Act 2009 (Qld)(QCAT Act) or an enabling Act.[8] An enabling Act confers original jurisdiction if it confers the power to make an application or referral to the tribunal in relation to a matter under the enabling Act.[9]
• [12] The Competition and Consumer Act 2010 (Cth) (CCA) replaced the Trade Practices Act 1974 (Cth). The Australian Consumer Law (ACL) is in Schedule 2 of the CCA. The ACL has been adopted by the FTA[10] and when applied is referred to as the ACL (Queensland). Section 15 of the FTA provides that the text of the ACL(Queensland) consists of Schedule 2 to the CCA.
• [13] The FTA is an enabling Act. Section 50A of the FTA confers jurisdiction on the Tribunal in relation to motor vehicles in respect of certain actions under the ACL (Queensland) listed in the table to the section where the amount or value of relief is not more than $100,000.
• [14] Motor vehicle has the meaning provided in section 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld),[11] which includes a caravan.[12] I accept that this action relates to a motor vehicle and seeks an amount of not more than $100,000.
• [15] The Tribunal[13] and the Appeal Tribunal[14] have accepted that the Tribunal has power under section 50A of the FTA to order a refund, without expressly pointing to 'the action under a provision of the ACL (Queensland) listed in the table' to section 50A relied upon. The learned Members decided that a refund is an order requiring a party to pay a stated amount to a stated person,[15] adopting reasoning of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCATA).[16]
• [16] Lam's case, in my view, relevantly concerned whether the ACL(NSW) was inconsistent with other New South Wales legislation affecting whether NCAT had jurisdiction to order a refund. NCATA's decision as to jurisdiction, in my view, is based on an analysis of its enabling legislation, which is very different to section 50A of the FTA.
• [17] NCATA considered NCAT had jurisdiction under the then applicable Consumer Claims Act 1998 (NSW) (CC Act) and continued to have jurisdiction under Part 6A of the Fair Trading Act 1987 (NSW) (NSW FT Act):[17]

to grant remedies where there has been a failure to comply with a consumer guarantee arising under the ACL NSW, if the requirements of the CC Act (or now Pt 6A) are otherwise satisfied.

Our reasons for reaching this conclusion rely on the principles concerning the construction of related and potentially contradictory statutory texts of the same legislature and how those principles apply to:

(1) the consumer guarantee and related remedial provisions of the ACL NSW; and

(2) the provisions of the CC Act (now Pt 6A of the FT Act) conferring jurisdiction on the Tribunal to determine "consumer claims".

• [18] The CC Act and subsequently Part 6A of the NSW FT Act confer a broad jurisdiction on NCAT to determine 'consumer claims'.
• [19] Section 6 of the CC Act provided that any consumer may apply to the Tribunal for determination of a consumer claim. Section 3A of the CC Act defined "consumer claim" broadly and included a claim by a consumer for the payment of a specified sum of money that arises from a supply of goods or services by a supplier to the consumer, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of goods or services.
• [20] Section 79I of the NSW FT Act similarly provides that any consumer may apply to the Tribunal for determination of a consumer claim. Section 79E of the NSW FT Act also defines "consumer claim" broadly and includes a claim by a consumer for the payment of a specified sum of money, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract) or that arises under a contract that is collateral to a contract for the supply of goods or services.
• [21] This broad conferral of jurisdiction is quite different from the quite specific conferral of jurisdiction to this Tribunal for actions 'under a provision of the ACL (Queensland) listed in the table' to section 50A of the FTA.
• [22] The reasoning in Lam is, in my view, largely based on a finding that NCAT would have had jurisdiction prior to adoption of the ACL for such a claim so there was no reason to infer that the legislature had removed the jurisdiction.[18]
• [23] In so far as section 50A of the FTA grants jurisdiction to the Tribunal for consumer motor vehicle claims above $25,000, the minor civil disputes monetary limit of the Tribunal,[19] that clearly conferred a new jurisdiction on the Tribunal.

Is this application for an order requiring MDG, a supplier of goods, to pay a stated amount (being a refund) an action under a provision of the ACL (Queensland) listed in the table to section 50A of the FTA?

• [24] I find that upon a proper construction of section 50A of the FTA, the Tribunal does not have power to order a refund because an action for a refund against a supplier of goods is not an action under a provision of the ACL (Queensland) listed in the table.
• [25] Mrs Jarmain who was not legally represented made limited submissions as to the legislative basis of the claim.
• [26] Section 259(1) of the ACL (Queensland) provides that a consumer may take action against a supplier of goods where a guarantee, in this case of acceptable quality, is not complied with.
• [27] The provisions of the ACL (Queensland) listed in the table to section 50A of the FTA include section 259(2), (3) and (4) in relation to actions against suppliers of goods. Section 259(1) is not included in the table. There is no reference to section 263, which imposes an obligation to refund money paid for the goods, where the consumer rejects the goods in certain circumstances. This is perhaps understandable as section 263 does not expressly provide for an action against the supplier but rather sets out the consequences where a consumer validly rejects the goods under section 259.
• [28] The table sets out the nature of the proceeding under section 259(3) as an action to recover compensation for reduction in value of goods, which reflects the express action provided for in section 259(3)(b) but not a rejection of the goods as provided for in section 259(3)(a). Again, this is perhaps understandable as section 259(3)(a) does not expressly provide for an action against the supplier for rejection of goods.
• [29] The table sets out the nature of the proceeding under section 259(4) as an action to recover damages because of a failure to comply with guarantee (sic).
• [30] Section 259(4) of the ACL (Queensland) provides:

The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

• [31] In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4)[20] Derrington J referring to section 259(4) of the ACL stated:

It would appear that this subsection is concerned with the recovery of 'reliance losses' as the inclusion of the limitation of 'reasonable foreseeability' pertains to such losses rather than expectation losses.

......

Whilst there is no doubt he cannot obtain more than his actual loss such that "double recovery" is impermissible, there is nothing in s 259(4) to suggest a consumer cannot recover under it if they have suffered loss or damage by reason of the failure of a guarantee which is not compensated for by the return of the purchase price. Here, the primary relief sought is for the repayment of the purchase price which I have determined is available to Mr Vautin. That being so, he is not entitled to recover any diminution in the value of the vessel by reason of the existence of the breach of the guarantee. However, where loss has been sustained an applicant in the position of Mr Vautin is entitled to recover consequential damages under s 259(4). (emphasis added)

• [32] Section 50A was inserted into the FTA by section 5 of the Queensland Civil and Administrative Tribunal and Other Legislation Amendment Act 2019 (Qld).
• [33] The explanatory notes to the Queensland Civil and Administrative Tribunal and Other Legislation Amendment Bill 2018 provides:[21]

To implement elements of the Government's commitment to improve fairness and provide greater rights for Queenslanders buying a vehicle and address recommendation 7 of the Lemon Laws Inquiry Report, the Bill:

• confers QCAT with jurisdiction for actions for an amount or value of other relief of not more than $100,000 under the:
• FT Act in relation to the ACL consumer guarantees for the supply of goods or services, where the action relates to a motor vehicle (including a caravan or a motorhome)...
• To ensure that QCAT has sufficient flexibility to deal with motor vehicle proceedings in a timely way, which reduces costs to QCAT and consumers, and ensures accessibility, it is proposed:
• that these proceedings will not form part of QCAT's MCD jurisdiction, but will be heard as part of QCAT's original 'other civil disputes' jurisdiction regardless of the amount of the claim or value of relief (i.e. not more than $100,000); and
• to provide QCAT with flexibility in the way the tribunal hears motor vehicle disputes (e.g. having regard to the complexity of the proceeding and the amount of the claim).

• [34] In Barton v Bridgeman & Anor[22] Sheridan DCJ, supported by a decision of the Federal Court in Ferraro v DBN Holdings Aust Pty Ltd trading as Sports Auto Group,[23] found:[24]

Pursuant to section 263(4), upon the giving of a valid notification of rejection, if the consumer elects, the supplier must refund any money paid by the consumer for the goods. Section 263 does not, however, expressly establish the mechanism by which a consumer can enforce the supplier's obligation to refund the money paid for goods under section 263(4).

In my view, it is unlikely that it gives a consumer a right of action; as Ms Barton contends. It is more likely that any relief for a refund is to be dealt with under the specific sections of the ACL that explicitly provide for relief against any breach; such as s237.

Section 237 entitles a court on the application of the person who suffered loss because of the conduct of another in contravention of the ACL to make such orders as it thinks appropriate against a person who is engaged in that conduct.

• [35] Section 237 of the ACL (Queensland) provides:

(a) on application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:

(i) was engaged in a contravention of a provision of Chapter 2, 3 or 4; or

(ii) constitutes applying or relying on, or purporting to apply or rely on, a term of a consumer contract that has been declared under section 250 to be an unfair term; or

(b) on the application of the regulator made on behalf of one or more such injured persons;

make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.

...

(2) The order must be an order that the court considers will:

(a) compensate the injured person, or any such injured persons, in whole or in part for the loss or damage; or

(b) prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any such injured persons.

• [36] Relevantly, the guarantee of acceptable quality[25] is found in Chapter 3 of the ACL (Queensland).
• [37] Section 242(1) of the ACL (Queensland) provides that an application may be made under section 237 (1) of the ACL (Queensland) even if an enforcement proceeding in relation to the conduct, or the term of a contract, referred to in that subsection has not been instituted.
• [38] Section 243(d) of the ACL (Queensland) expressly provides that without limiting section 237 (1) of the ACL (Queensland) the orders that a court may make includes an order directing the respondent to refund money.
• [39] The table to section 50A of the FTA does not include an action under section 237, nor under section 259(1), nor 259(3)(a) nor section 263 of the ACL (Queensland).
• [40] I accept that a significant remedy for failure to comply with a guarantee provided by the ACL (Queensland) is the right to reject goods and terminate contracts for the supply of services and seek a refund. The amendments to the FTA sought to expand the Tribunal's powers to deal with motor vehicle claims.
• [41] Despite the remedial and beneficial nature of the FTA and the ACL (Queensland), regrettably, I am not satisfied that the legislature clearly intended to allow the Tribunal power to deal with claims for refunds in these circumstances rather than require consumers to proceed with such claims in a court. The table clearly confers jurisdiction for a refund in other circumstances but not against a supplier of goods.[26] This omission may have been an oversight.
• [42] I have considered whether section 259 (4) of the ACL(Queensland) could be relied upon to found jurisdiction in the current circumstances. However, the considerable body of case law on claims under section 259 (4) of the ACL appear to only contemplate that section is directed at a claim for consequential loss in addition to a refund rather than in substitution for a refund.
• [43] I have also considered whether a refund is a consequence of the exercise of the jurisdiction conferred on the Tribunal by the FTA but I am not satisfied that any of the actions 'under a provision of the ACL (Queensland) listed in the table' to section 50A of the FTA can be relied upon to found such jurisdiction.

• [44] I find that the matter should be transferred to the District Court.
• [45] Where the Tribunal does not have jurisdiction, it may transfer a matter to a court of competent jurisdiction.[27] The Tribunal may act on its own initiative to transfer a proceeding to a court of competent jurisdiction.[28]
• [46] The amount sought to be refunded falls within the monetary jurisdiction of the Magistrates Court. By section 263(6) of the ACL (Queensland) property in the caravan revested in MDG upon a valid notice of rejection. However, as identified in Barton v Bridgeman and Anor[29] where, as here, the supplier disputes the right to reject the goods a declaration is required as to the rightful owner of the goods. Such relief is available in the District Court but not the Magistrates Court.

If I am wrong and the Tribunal does have jurisdiction under section 50A of the FTA what orders would be appropriate? Should MDG pay a refund (a stated amount) for failure to comply with a guarantee of acceptable quality?

• [47] If I am wrong and the Tribunal has jurisdiction to determine this claim, I consider what orders would be appropriate.
• [48] If the Tribunal has jurisdiction, on the evidence before me, the appropriate order is that MDG is to pay Mrs Jarmain $54,140 and is to pay Mrs Jarmain costs fixed in the amount of $358.

Was there a breach of a guarantee of acceptable quality?

• [49] I find that the Caravan was not of acceptable quality at the time of delivery to Mrs Jarmain.
• [50] Section 54(1) of the ACL (Queensland) provides that, other than by way of sale by auction, where a person supplies goods in trade or commerce, to a consumer the goods are guaranteed to be of 'acceptable quality'.
• [51] MDG says that the Caravan was of acceptable quality when delivered and any issues have arisen due to a lack of appropriate maintenance.
• [52] Section 54 of the ACL (Queensland) relevantly provides:

(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.

(6) Goods do not fail to be of acceptable quality if:

(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

(b) they are damaged by abnormal use.

(7) Goods do not fail to be of acceptable quality if:

(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.

• [53] A person is taken to have acquired goods as a consumer if 'the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption'.[30] There was no contention by MDG that Mrs Jarmain was not a consumer to displace the statutory presumption.[31] Mrs Jarmain's evidence is that she acquired it for her and her husband's personal use. I accept the Caravan was acquired by Mrs Jarmain as a consumer.
• [54] The Tribunal has previously found that:[32]

The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney [2003] FCAFC 151; (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.

• [55] The Tribunal has also previously accepted the Macquarie Dictionary definitions of:[33]

(a) 'defect' to mean 'a fault' or 'imperfection'.

(b) 'durable' as 'having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately'.

• [56] In Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd,[34] it was observed in relation to a caravan that:

RVs, like many substantial consumer items such as motor vehicles, yachts, and even bicycles, are manufactured from a range of component parts, many of which may be capable of easy replacement or repair in the event of some fault. Some of the accessories, such as air conditioning units, televisions, or microwave ovens, may be manufactured by specialist suppliers of electrical appliances, and installed in the RV by the manufacturer or the supplier of the RV. Many of the component parts are designed for mechanical movement. RVs are intended to be towed. The process of towing will subject the RVs to stresses and flex. RVs will necessarily be exposed to weather. They are designed to be lived in, and otherwise to be used. Lids will be raised, and lowered. Doors will be opened, and shut. Drawers will be pulled out, and pushed in. RVs will be used by families with children, who sometimes lack fine motor skills when handling equipment. Surfaces may become scratched or chipped though normal use. An appliance installed in an RV, if found to be faulty, might be able to be easily repaired or replaced by a specialist supplier. Fuses may blow. Sometimes, just as in a household, the cause of an isolated occurrence of a blown fuse may not be apparent. Screws might have to be tightened. Doors might have to be straightened. These things are inherent in the nature of the goods. The reasonable consumer will tolerate some faults or breakages, and some need for adjustments of this type that are exposed by a period of initial use. The reasonable consumer will purchase an RV accepting that there is a reasonable prospect that some components of the RV may have to be adjusted, repaired, or replaced within a manufacturer's warranty period. Putatively, if a reasonable consumer was fully acquainted with the nature and extent of a failure to comply with a statutory guarantee at the time of purchase, the reasonable consumer might nonetheless proceed with the purchase on the basis that the supplier, or the manufacturer, will remedy the failure within a reasonable time. On the other hand, it does not follow that merely because a failure to comply with a statutory guarantee is capable of being remedied, that a reasonable consumer fully acquainted with the nature and extent of the failure would acquire the goods. Whether that is so will depend upon the circumstances of each case.[35]

• [57] Mrs Jarmain and Mr Jarmain gave evidence that:

(a) they took delivery of the Caravan, sold as an off road caravan, on 10 March 2018;

(b) at delivery there were a few minor defects observed, which were rectified by Mr Jarmain or MDG's representative prior to taking the Caravan with them;

(c) the MDG representative was busy with another customer at the time of delivery which impacted on him being able to give a thorough handover of the Caravan;

(d) after they got the Caravan home Mr Jarmain did a thorough inspection;

(e) on 30 April 2018 they reported to MDG that there was a crack to the inner wall of the shower prior to the shower being used;

(f) in mid May 2018 MDG authorised them to book the Caravan into an approved contractor for repair;

(g) on 20 August 2018 Mr Jarmain took the Caravan to the approved contractor and about three weeks later, after they followed up the contractor and MDG, the approved contractor repaired the shower at MDG's cost;

(h) in about September 2018 they notified MDG that the water pump was not switching on;

(i) in November 2018 a new pump was provided to them;

(j) in November 2018 they reported issues to MDG including damage to the flooring (manifesting by a bubble in the vinyl) and indentations on the top of the kitchen table. Mr Jarmain explained that the dents could only be seen at certain angles and in particular light;

(k) in April 2019 MDG authorised repair of the flooring by an approved contractor;

(l) on or about 10 July 2019 the approved contractor undertook the repair to the flooring and reported that the timber flooring had been compromised and that they had repaired the fridge drain hose, which had been installed incorrectly;[36]

(m) during 2020 the Covid 19 pandemic prevented them from using the Caravan;

(n) in February/March 2021 they took a holiday in the Caravan and a number of issues arose, which they reported on their return home;

(o) on 9 March 2021 they reported to MDG further cracking in the shower wall, the fridge thermostat was not working, damage to the floor was re-occurring, the door handle had broken so they were unable to lock the Caravan, the outside checker plate was coming away from the inner walls of the Caravan;

(p) they took photographs and videos (at least some of which were in evidence before me), which they sent to MDG showing movement in the showerbase and movement in the kitchen floor and separation of the checkerplate from the internal walls;

(q) on 2 April 2021 Mrs Jarmain listed the issues with the Caravan and requested MDG to take the caravan back;

(r) on 5 April 2021 by email Mrs Jarmain more forcefully informed MDG that she wanted a refund or a new caravan. She informed MDG that they had taken the Caravan to the contractor, which had performed the initial floor repair, but it refused to perform further work on the Caravan and told them to return it to the supplier and that they had not yet received a quote from a different contractor;[37]

(s) a quote dated 8 April 2021 for $12,088.50 (incl GST) for repairs only to the checkerplate was obtained from another contractor;[38]

(t) in or about April 2021 Mrs Jarmain requested MDG inspect the Caravan to assess for itself the extent of the issues;

(u) on 30 April 2021 a MDG representative advised that the Caravan was booked in for a complete assessment by MDG on 5 July 2021;

(v) on 6 May 2021 the Caravan was made available for MDG's collection. They had emptied, cleaned it and it was in good order (except for the issues advised) before being transported to MDG;[39]

(w) by 12 May 2021 the Caravan arrived at MDG's premises;

(x) on 22 July 2021 MDG's representative advised Mrs Jarmain by telephone that following the inspection of the Caravan, MDG agreed to strengthen the floors, fix the door handle, fix the wall of the shower, fix the outside kitchen and install a full set of checkerplate. Mrs Jarmain again advised MDG that she required a full refund and to hold off on the works while they explored their options;

(y) on 13 August 2021 MDG advised Mrs Jarmain in writing that it proposed to repair the Caravan;

(z) during the period August 2018 - March 2021 the Caravan travelled approximately 4,984km of which approximately 700km was to have the initial repair to the shower performed;[40]

(aa) the Caravan is the third caravan the Jarmains have owned. Mr Jarmain is a farmer and services his farm equipment himself in accordance with manufacturers' recommendations, where they are available. There were no manufacturers' recommendations provided to them or available on the internet in relation to the Caravan. Mr Jarmain used his knowledge and experience gained through ownership of the previous caravans to service the Caravan;

(bb) they don't smoke, stored the Caravan in their shed away from sunlight when not in use and didn't use chemicals to clean the Caravan;

(cc) Mr Jarmain conducted checks prior to and after taking the Caravan away and discovered the cracking in the shower and other items while undertaking maintenance checks.

• [58] MDG repaired or paid for repair or replacement of a number of the defects but some claimed defects have not been repaired. MDG disputes some of these and had arranged to perform some repairs but Mrs Jarmain requested work cease on 22 July 2021 and not long after receiving the written report from MDG commenced these proceedings.
• [59] A direction for the appointment of an assessor was not made at the directions hearing held in this matter.[41] Mrs Jarmain did not file any evidence from an independent expert. By the time she commenced the proceedings she was no longer in possession of the Caravan.
• [60] Mr Jarmain gave evidence that he had about 15 years' experience in the building industry but not the caravan industry other than as owner of two prior caravans. His evidence is that the cracking in the shower, the spongy flooring and the separation of the checkerplate from the internal walls indicate issues with the structural elements of the Caravan and based on his experience he believed that the Caravan was not made properly and not checked properly prior to handover. His evidence was that the initial damage to the flooring did not appear to be water damage.
• [61] MDG did not file any statements of evidence despite applying for and obtaining an extension of time.[42] The Tribunal had directed that no party will be allowed to present any evidence at the hearing that is not contained in statements without justifying the need for additional evidence.[43] Mr Zammit did not provide a clear explanation as to why statements were not filed by MDG but was content for the hearing to proceed relying upon the Response he authored as if it was a statement.
• [62] Mr Zammit gave evidence that:

(a) he became involved with this claim in about July 2021 and had reviewed records of MDG;

(b) MDG could undertake the checkerplate repairs itself more cost effectively than the quote obtained from the contractor and by doing the work itself, it could better ensure the quality of the work;

(c) MDG had ordered materials to perform the checkerplate repairs. The checkerplate quote included an item for supply of such materials for $1,960 (excl GST)[44] and that since the pandemic contracted repair costs had significantly increased due to increased demand;

(d) MDG had agreed to carry out repairs to the checkerplate, replace the floor (not merely strengthen it) and perform other repairs including fixing corrosion to the outside kitchen[45]but had not done so prior to Mrs Jarmain's directive to cease work;

(e) he had significant experience in the building industry and about 10 years' experience in the caravan industry;

(f) he had not inspected the Caravan in person as he is not located in Brisbane but rather he had inspected it via video conferencing technology;

(g) in his opinion the issues did not indicate that the Caravan was not of acceptable quality at the time of delivery in March 2018 but rather were issues which arose due to lack of appropriate maintenance to joint sealants, and which would have been detected earlier by such maintenance, including by the use of moisture meters;

(h) at the time of this purchase MDG did not provide purchasers with recommended maintenance information but since then does so;

(i) the replacement of the flooring was not 'as big an issue' as a person inexperienced in caravan repair might think;

(j) in manufacturing it is expected that a small percentage of components will fail and need to be repaired or replaced;

(k) issues of discolouration to sikaflex in the shower and to walls were likely due to the use of chemicals or exposure to sun or smoke;

(l) by October 2021, the Caravan had been subjected to at least normal use and travel for its age;

(m) the separation of the checkerplate may have been caused by some contaminant affecting bonding;

(n) the damage to the flooring appeared to be water damage related to the refrigerator but could be related to the ensuite;

(o) the current issue with the flooring may not be related to the initial repair as the sections of the floor now requiring repair seem to be unrelated to the prior issue;

(p) had the faults with the flooring been present at the time of delivery he believed the issue would have presented earlier and that in his opinion a contributing factor was likely moisture, the cause of which had not yet been determined.

• [63] MDG claims that the Caravan was of acceptable quality at delivery but that the issues have subsequently arisen.
• [64] The Appeal Tribunal in Knox v Tait Motors Pty Ltd t/as Tait Auto Group[46] has previously found that where the supplier claims that the failure arose after the goods were supplied, the onus is upon the supplier to prove that is the case.[47] That onus may be discharged based on circumstantial evidence.[48]
• [65] MDG is in possession of the Caravan. It did not provide evidence as to the likely cause of the issues by a person who had inspected the Caravan in person. Mr Zammit's evidence as to moisture damage to the flooring was speculative. His evidence as to the cause of the separation of the checkerplate was also speculative and very limited.
• [66] I accept that MDG is likely to be able to undertake the checkerplate repairs more cost effectively than the contractor's quote. There was no other evidence before me as to the cost to rectify this item. Compared to the total purchase price the cost for repairs of the checkerplate issue, even if somewhat inflated by high demand for services, is quite significant. There was no evidence before me as to the cost to rectify the flooring or the other issues. Although Mr Zammit sought to downplay the extent of the work required, the work is clearly not minor, including by reference to the only evidence before me as to the costs of rectification compared to the purchase price.
• [67] I accept that there are a number of faults or defects which currently affect the Caravan. These include:

(a) the checkerplate separating from the internal walls;

(b) the 'spongy' flooring;

(c) cracking in the shower.

• [68] I also accept that there are a number of other defects or faults which have previously been rectified.
• [69] Mrs Jarmain essentially points to the series of issues commencing at an early time after delivery, that the Caravan was sold as an off road caravan so that she had (and a reasonable consumer would reasonably have) an expectation that it would be quite robust, because it was manufactured to be able to withstand offroad conditions and the continuing issues despite limited use of the Caravan as evidence that the Caravan was not of acceptable quality at the time of delivery.
• [70] There is no independent evidence as to the cause of the issues or whether they were more than likely present at delivery.
• [71] There is no contention of abnormal use.[49] I accept Mr Jarmain's evidence of the steps he took to maintain the Caravan and find that such steps were reasonable in the absence of MDG providing recommended maintenance information.[50]
• [72] In _Morphy v Beaufort Townsville Pty Ltd[51]_the Victorian Civil and Administrative Tribunal stated:

[T]he context of the section clearly requires that the question of durability be determined by having regard to how long a 'reasonable consumer' would expect the goods to last, taking into account the price paid, the nature of the goods and the representations made about the goods.

• [73] In Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd[52] NCAT stated:

A reasonable consumer would also be entitled to expect that such a high cost item would be durable, being capable of safe and effective use over a number of years (or at least many thousands of kilometres).

• [74] I accept that the cracking of the shower was first observed in April 2018 a matter of a few weeks after delivery and the damage to the floor initially became apparent in November 2018, which was repaired in July 2019. These issues arose quite soon after Mrs Jarmain took delivery of the Caravan and, I accept, are evidence as to the quality of the Caravan at the time of delivery and its lack of durability.
• [75] Further issues, including further cracking in the shower and further damage to the floor became apparent in February/March 2021 after limited use of the Caravan.
• [76] The cause of the cracking to the shower, the damage to the floor both initially and subsequently and the separation of the checkerplate are essentially unexplained. There is no evidence to indicate that the Jarmains' use of the Caravan was extra-ordinary and there is no persuasive evidence, which might reasonably suggest that other factors contributed to or caused the defects. Given the flooring defects and the wall defects were 'hidden' in the structure they would not have reasonably been revealed by the Jarmains' inspection of the Caravan at delivery or soon thereafter.
• [77] I find it is more likely than not that the defects existed in the Caravan as at the date of supply.
• [78] I find that a reasonable consumer would not expect a new off road caravan to require replacement of the exterior walls and the floor within a relatively short time after purchase and little usage. I find that a reasonable consumer fully acquainted with the state of the Caravan at the time of purchase would not regard it as free from defects and durable. I therefore find it was not of acceptable quality.

Was the failure to comply with the guarantee of acceptable quality a major failure?

• [79] I find the failure to comply was a major failure.
• [80] Section 260 of the ACL(Queensland) provides:

(1) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in one or more significant respects:

(i) if they were supplied by description - from that description; or

(ii) if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d) the goods are unfit for a disclosed purpose that was made known to:

(i) the supplier of the goods; or

(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) the goods are not of acceptable quality because they are unsafe.

(2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:

(a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and

(b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.

• [81] The concept of 'major failure' was considered in Baas v JB Hi Fi Group Pty Ltd[53] where it was held:

Not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure under s 260(a) of the ACL: Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80. The test is objective. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the fault(s). The test in s 260(a) of the ACL is whether a reasonable consumer with knowledge of the faults and what would be needed in terms of time, costs and degree of difficulty to fix them would have bought the goods or made a different decision.[54]

• [82] A finding of a major failure is a judgment of fact and degree based on inferences from the evidence.[55]
• [83] It has previously been accepted that a number of minor defects can be considered in aggregate to amount to a major failure.[56]
• [84] The period of time where the Caravan was not able to be reliably used while warranty claims were investigated, the cost of repair and whether the defects can be remedied easily in a timely manner are relevant considerations as to whether there has been a major failure. I accept Mr and Mrs Jarmain's evidence as to the chronology of events, which shows that there were significant delays in addressing the issues after they were reported. I also accept Mr Zammit's evidence that some delays arose by reason of the Jarmains not living near MDG's Brisbane premises and its approved repairers.
• [85] It seems to me that a reasonable consumer, acquainted with either or both the exterior wall and the flooring issues, would have very serious reservations about purchasing the Caravan.
• [86] I find the exterior wall issue is such that a reasonable consumer fully acquainted with the nature and extent of the failures, would not have acquired the Caravan.
• [87] I also find the flooring issue is such that a reasonable consumer fully acquainted with the nature and extent of the failures, would not have acquired the Caravan.
• [88] Alternatively, I find that the exterior wall issues and the flooring issues in aggregate, are such that a reasonable consumer fully acquainted with the nature and extent of the failures taken as a whole, would not have acquired the Caravan.

Was the Caravan rejected for failure of the guarantee of acceptable quality?

• [89] I find that whilst Mrs Jarmain did not use the language of the ACL (Queensland), on 5 April 2021, Mrs Jarmain rejected the Caravan.
• [90] MDG contends that it was a request rather than a rejection under the ACL (Queensland).
• [91] The ACL (Queensland) provides that if the failure to comply with the guarantee is a major failure the consumer may subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection[57] and may recover damages for any loss or damage suffered because of the failure to comply with the guarantee.[58]
• [92] Mrs Jarmain clearly informed MDG by email dated 5 April 2021 that they wanted a refund or a new caravan in the context of stating that they had taken the Caravan to the contractor, which had performed the initial floor repair but it refused to perform further work on the Caravan and told them to return it to the supplier. She called for MDG to take responsibility for the Caravan and called upon MDG to freight the Caravan back to its yard. She clearly stated that she considered the flooring and external wall issues very serious.[59]
• [93] In the circumstances, I am satisfied that this amounted to a rejection, which was notified to MDG together with the ground or grounds of the rejection.
• [94] Alternatively, I find that Mrs Jarmain rejected the Caravan on 22 July 2021 when she advised a MDG representative that they would only accept a full refund when MDG advised it intended to undertake repairs.

Was Mrs Jarmain entitled to reject the Caravan? Was the Caravan rejected within the rejection period?

• [95] I find Mrs Jarmain was entitled to reject the Caravan and did so within the rejection period.
• [96] MDG contends that if Mrs Jarmain rejected the Caravan, it was not done within the rejection period.
• [97] Section 262(1) provides:

A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if:

(a) the rejection period for the goods has ended; or

(b) the goods have been lost, destroyed or disposed of by the consumer; or

(c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or

(d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them.

• [98] There was some evidence before me that the Caravan was dirty and damaged upon its arrival in MDG's yard in May 2021. The Jarmains' evidence was that they had cleaned it and it was in good order when it left their possession. I accept that evidence. Mr Zammit conceded that any transportation damage would be rectified by MDG. I find the damage does not preclude Mrs Jarmain from rejecting the Caravan.
• [99] The consumer is required to reject the goods within the 'rejection period', which is defined in s 262(2) of the ACL(Queensland) to mean:

(3) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to:

(a) the type of goods; and

(b) the use to which a consumer is likely to put them; and

(c) the length of time for which it is reasonable for them to be used; and

(d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

• [100] In Vautin v By Winddown Inc (formerly Bertram Yachts) (No 4)[60] Derrington J discussed the rejection period in relation to latent defects:

In the definition of "rejection period" the expression "relevant failure" is used. That latter expression must mean that "major failure" to comply with a guarantee on which the consumer relies or is entitled to rely to reject the goods. Where the manifestation of the failure to comply with a guarantee is patent, the period in which it would be reasonable to expect it to become apparent will be relatively short and easy to identify. Where the item acquired does not work at all and the cause of that is the failure of the product rather than the manner of its use, it can be readily inferred that there has been a failure which is the result of the goods not being of an acceptable quality. Different considerations arise where the defect in the goods is latent and the defect does not manifest itself for some period of time. Indeed, even when the latent defect does manifest itself, it may not be clear that the cause is the failure to comply with a guarantee. Additionally, even when a latent defect manifests itself to some degree and the cause is known, it may not be apparent for some time thereafter how the latent defect will, if at all, further manifest itself or what are the consequences of its existence. In Nesbit v Porter the Court of Appeal (NZ) determined that the "reasonable time" for identification of the failure included time for the consumer to become aware of the nature and extent of the defect and what it will cost to fix it. That is, until these matters are known it cannot be said that the failure to comply with a guarantee has "become apparent".[61]

• [101] In Jayco Pty Ltd,[62] in considering the application of section 262(2), it was held:

...the rejection period is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to become apparent. This is a reference to the failure to comply with the statutory guarantee becoming apparent, rather than any underlying defect becoming apparent, which may occur at an earlier point in time.[63]

• [102] The rejection period for present purposes was that period sufficient to enable Mrs Jarmain to become fully acquainted with the Caravan's defects, the cause of the problems and the steps required to be taken to rectify the issues.[64]
• [103] Mrs Jarmain's evidence is that she rejected the Caravan by seeking a refund on 5 April 2021 after the initial flooring repair contractor, which MDG acknowledges is a reputable repairer,[65] informed them that it refused to perform further work on the Caravan and the seriousness of the defects became apparent.
• [104] As referred to earlier, the evidence is that the actual cause of the problems has not yet been identified.
• [105] In July 2021 MDG agreed to rectify the issues by removing and replacing the exterior checkerplate and by removing and replacing the flooring, amongst other things. As stated earlier in these reasons, although Mr Zammit sought to downplay the extent of the work required, the work is clearly not minor, including by reference to the only evidence before me as to the costs of rectification compared to the purchase price.
• [106] On 22 July 2021 Mrs Jarmain (again) rejected the Caravan after it was in MDG's possession when she was informed of the extent of the repairs MDG proposed.
• [107] I find that the rejection period had not ended by the time Mrs Jarmain rejected the Caravan on 5 April 2021. Alternatively, I find that the rejection period had not ended by the time Mrs Jarmain rejected the Caravan on 22 July 2021.

• [108] I find that Mrs Jarmain is entitled to a refund of the purchase price.
• [109] The ACL (Queensland) sets out the consequences where the goods have been rejected. It provides that where a consumer rejects the goods the consumer must return the goods unless they have already been returned or retrieved by the supplier[66]and the supplier must refund any money paid by the consumer for the goods or replace the rejected goods with goods of the same type and of similar value of such goods are reasonably available.[67]
• [110] The Tribunal has previously found that the Tribunal does not have jurisdiction under s 50A of the FTA to require the supplier to deliver to the consumer goods of the same type or similar value under section 263(4)(b) of the ACL (Queensland).[68]
• [111] In any event, Mrs Jarmain clearly made an election during the proceedings for a refund, if that had not been clear earlier.
• [112] The Caravan has been returned to or retrieved by MDG. Mrs Jarmain is entitled to a refund pursuant to section 263(4)(a) of the ACL (Queensland). MDG has refused to refund Mrs Jarmain. She is entitled to a refund of the purchase price due to the failure to comply with the guarantee of acceptable quality, for the reasons stated earlier in these reasons.

• [113] I find that MDG is to pay Mrs Jarmain costs fixed in the amount of $358.
• [114] The Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant if the interests of justice require it.[69]
• [115] Mrs Jarmain paid the filing fee in the amount of $358. I find that it is in the interests of justice to award costs having regard to section 102 of the QCAT Act. In exercising my discretion, I find that:

(a) the relative strengths of the claims made by each of the parties[70] is a factor in favour of an award of costs as Mrs Jarmain was ultimately successful.

(b) the financial circumstances of the parties[71] is a factor in favour of an award of costs. Mrs Jarmain gave some limited evidence of their financial circumstances under cross-examination, in particular that Mr Jarmain undertook maintenance on their belongings as they 'don't have a lot of money to have things checked out professionally'. Although there was no actual evidence of MDG's financial position I infer that a caravan business is likely to have been positively impacted by the pandemic, based on Mr Zammit's evidence of increased demand for caravans and caravan services during the pandemic.

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38(2) (QCAT Act); Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5 and s 8 (QCAT Regulation).

[10] Fair Trading Act 1989 (Qld), s 16 (FTA).

[11] FTA, s 50A(4).

[12] Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s12(1)(b).

[13] Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44.

[14] Howarth & Anor v Biscamoss Pty Ltd [2022] QCATA 72.

[16] Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186.

[18] Ibid, [98],[112],[113], [158].

[19] QCAT Act, s 11A, Schedule 3 (definition 'prescribed amount').

[20] [2018] FCA 426, [293]-[294].

[22] [2020] QDC 16.

[23] [2015] FCA 1127.

[24] [2020] QDC 16, [225]-[227].

[29] [2020] QDC 16, [250]-[251].

[32] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369, [9].

[34] [2020] FCA 1672.

[42] Application for miscellaneous matters filed 15 February 2022; Directions made 16 February 2022.

[46] [2021] QCATA 87, [24].

[47] Effem Foods Ltd v Nicholls [2004] NSWCA 332.

[51] [2018] VCAT 1520, [72].

[52] [2016] NSWCATCD 90, [57].

[53] [2021] NSWCATAP 10.

[55] Peter Bennett Cars v Lyree-Jo Vodanovich [2020] QCATA 88, [24].

[56] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369, [33].

[60] [2018] FCA 426.

[62] [2020] FCA 1672.

[64] Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465,[39].

[68] Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44.