O'Neill v Country Motor Company

Jurisdiction

1. The parties filed an agreed statement of facts to the following effect: 1. The parties entered into a contract on 28 April 2014 for the supply by the respondent to the applicant of the subject caravan and the caravan was supplied by the respondent on 23 May 2014, 2. The contract was for the "supply" of "goods" within the meaning of the Fair Trading Act 1987 (FTA) Part 6A, 3. The contract was made in New South Wales and the supply took place within New South Wales, 4. The applicant and respondent are respectively a "consumer" and a "supplier" within the meaning of Part 6A of the FTA, 5. The application is a "consumer claim" within the meaning of Part 6A and was brought within time, 6. The applicant was the first registered owner of the caravan.
2. A further fact that was not in dispute was that the caravan actually supplied by the respondent to the applicant was manufactured in 2013 and was the caravan that had been on display at the Rosehill Caravan and Camping Show on 28 April 2014.
3. The FTA s 79S(1) provides The Tribunal has no jurisdiction to make, in respect of a particular consumer claim, an order or orders in favour of the claimant (or, where there are two or more claimants, in favour of those claimants) if the relevant total under or because of the order or orders would exceed the prescribed amount.
4. The amount for which the applicant sought orders in this matter was $78,751.74. The prescribed amount for the purpose of s 79S (1) is $40,000 (s 79S (7)) and it would therefore appear that there is no jurisdiction for the Tribunal to make the order sought.
5. However, the FTA s 79S(6) provides an exemption to the limitation imposed by s 79S(1) (6) Subsections (1), (3) and (4) do not apply in relation to a consumer claim: 1. 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, or 2. relating to commission fees charged by agents licensed under the Property, Stock and Business Agents Act 2002.
6. The parties were in dispute on the issue of whether or not the subject caravan was a "new motor vehicle" within the meaning of s 79S(6)(a).
7. The applicant's position was that a new motor vehicle for the purposes of s 79S is defined as "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 . and the Motor Dealers and Repairers Act 2013 s 4 defines a "new motor vehicle" as one that is not a "second hand motor vehicle", which is defined as 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.
8. The applicant's submission was that the caravan was new and was sold to the applicant as such. The contract was described as a "Contract for the purchase of a New Vehicle" and the applicant purchased the vehicle for private purposes. The vehicle was not a demonstrator and the parties' agreed facts were that the applicant was the first registered owner of the caravan. Accordingly the sale comes within the exemption provided by the FTA s 79S (6) (a) and the Tribunal has jurisdiction to make the order sought.
9. The respondent's submission acknowledged that the respondent had sold the caravan to the applicant and that the applicant had used the caravan for private purposes.
10. However, the definition of "second-hand motor vehicle" set out in the Motor Dealers and Repairers Act 2013 s 4 includes a "demonstrator motor vehicle" which is defined as "demonstrator motor vehicle" means a motor vehicle: 1. that has been used only for a purpose connected with its manufacture or sale or for the purpose of demonstrating the motor vehicle, or a motor vehicle of that kind, to a potential purchaser, and 2. that has not been sold to a person other than a motor dealer, and 3. that has been registered only in the name of a motor dealer, a person on behalf of a motor dealer or another person in anticipation of the sale of the motor vehicle to that person.
11. The respondent's submission was that despite the fact Mr O'Neill thought he was buying a new vehicle the vehicle was a demonstrator, as provided on invoice 403 prepared by the respondent and signed by the applicant on 28 April 2014.
12. Further, the respondent relied on the evidence of Mr Buikstra that the caravan sold to the applicant was a display unit at the Rosehill Caravan and Camping Show 2014 and that it was used to demonstrate its qualities to potential customers.
13. In addition the respondent relied on the evidence of the salesman, Mr Rachford, that it was his unvarying practice when selling a display unit to write the VIN number and "display unit" on the invoice, which he had done in this case.
14. Hence, it was submitted, the caravan came within the definition of a "demonstrator motor vehicle" and was accordingly caught by the definition of being "second-hand". As the vehicle was not a "new motor vehicle" the exemption provided by the FTA s 79S(6)(a) has no application and the Tribunal is precluded from making orders in excess of $40,000.
15. The applicant's evidence was that he had attended the Rosehill Caravan and Camping Show in 2014 and that he had spent the entire day looking at caravans. He attended the respondent's display late in the day and was by then quite tired. Nevertheless Mr O'Neill gave clear evidence of his recollections of the conversation he had with Mr Rachford that day. Mr O'Neill was intending to travel from about June 2014 and therefore had a clear imperative which he expressed to Mr Rachford that his van must be ready by 23 May 2014. That conversation is consistent with the intention of the parties that a new caravan of the same model as the one on display be manufactured but with the added features agreed on. The van was in fact not supplied until 23 May 2014.
16. Mr Rachford gave evidence by telephone and had no clear recollection of his conversation with Mr O'Neill on 28 April 2014 and was dependant on his recollection of his usual practice when giving evidence on whether he had sold the display van to the applicant.
17. On this point I accept Mr O'Neill's evidence as more reliable than that of Mr Rachford. The invoice prepared by Mr Rachford on 28 April 2014 does indeed have a specific VIN number included and the words "display unit". However, the VIN number is on the line dealing with the specified exterior colour and the words "display unit" are on the line dealing with interior colour.
18. Mr O'Neill relied on the actions of the salesman to give effect to the agreement they had reached and gave evidence that he had not paid close attention to the details provided on the invoice he signed. I do not accept that the interpretation put on those words by Mr O'Neill is inherently implausible. I am satisfied that a reasonable person may very well interpret the words exactly as Mr O'Neill has stated he did.
19. I do not accept the respondent's argument that the contract was complete on signing of the invoice 403 on 28 April 2018 and payment of a deposit at that time. The contract document prepared, at least in part, on 6 May 2014 and executed on 23 May 2014 at the time of delivery of the caravan and the payment of the balance of the purchase price was an important part of the transaction.
20. It has been said that building contracts are not noted for their brevity and that the contract will often consist of "a monumental and forbidding aggregation of documents" F E Cleary & Sons Pty Ltd v Buckland Building Group Pty Ltd NSWCA 12 February 1976, unreported. Although this was not a building contract it was a contract for goods that required some specificity of description by the parties, involved a trade-in vehicle and a declaration regarding ownership of that vehicle and a significant payment of money by deposit and again on delivery. It is quite likely therefore that no single document was intended to express clearly all of the terms of the agreement. I am satisfied the invoice 403 could not, and in fact, did not constitute the whole of the contract between the parties.
21. The contract, I am satisfied consisted of "Tax Invoice 403" executed on 28 April 2014, the "Contract for purchase of a New Vehicle" executed on 23 May 2014 together with a specification sheet and other matters agreed orally between the parties.
22. I am satisfied that the agreement was to purchase a caravan of the same colour and description as the one on display and that there were some particular items specified and that the caravan as ordered was to be delivered later in May. I accept Mr Buikstra's evidence, and it is not in dispute, that the caravan actually sold to Mr O'Neill was the one on display at the Rosehill Show. However, it is not the one that Mr O'Neill believed he was buying and it was not the caravan the parties contracted for.
23. I am quite satisfied that the applicant entered into a contract for the purchase, and the respondent entered into a contract for the supply, of a new vehicle, as stated on the "Contract for purchase of New Vehicle" document executed on 23 May 2014.
24. Accordingly the applicant is entitled to the benefit of the exemption provided by the FTA s 79S(6) and the Tribunal does have jurisdiction to make the order sought.

Applicant's relevant submissions

1. The primary relief sought by the applicant is for a full refund of the purchase price of the caravan and associated losses on the basis that the respondent is in breach of the consumer guarantees provided by the Australian Consumer Law (ACL) s 54-56 and on the premise that the breaches constitute a "major failure" within the meaning of the ACL s 260.
2. Since the purchase of the vehicle by the applicant in April 2014 a number of defects have been identified. It is the applicant's submission that some of those defects continue, including the following ones which are themselves a major failure, namely; 1. Continuing water ingress to the caravan, 2. Faulty braking system, and 3. Non-compliant wiring and gas installation.
3. In addition, it was submitted, the remaining defects when taken alone may be minor but, when taken together are sufficient to constitute a major failure. Although some of the minor defects have been repaired it was the applicant's submission that because of the continuing nature of the defects and the piecemeal rectification of minor issues by the respondent the Tribunal should consider all of the defects in determining whether, at the time of supply, a reasonable consumer would have acquired the caravan.
4. The second aspect of the applicant's claim was that the respondent was in breach of the guarantee provided under the ACL s 56 in regard to supply of goods by description and/or the respondent had engaged in misleading and deceptive conduct contrary to the ACL s 18 in that 1. The caravan was not a newly built caravan but had in fact been constructed in 2013, 2. The caravan was not built by, or in affiliation with Winnebago, USA but had in fact been built by AVIDA which has no relationship with that company, and 3. It was misrepresented in regard to the tare mass and load carrying capacity.
5. The applicant provided details in an extensive chronology of events starting with the delivery of the caravan on 23 May 2014 and payment of the balance of the purchase price of $45,000 at that time. The defects complained of were listed as, 1. 26 May 2014 electrical faults including activation of step alarm without ignition connected, bathroom lights not working and two-part door not disengaging, 2. Early June 2014, problems with finishes including cabinet locks falling off, handle catches sticking, ill-fitting drawers, issues with caravan door, worn paintwork, scratched chrome handle and gasket falling out of main door lock, hairline cracks to front of caravan, incorrect manual, stability legs (2) fitted upside down, loose light fitting, electrical short in kitchen exhaust, 3. 10 June 2014, a total failure of electrical system resulting in repairs by the applicant and repairs of brakes, plumbing and electrical system by Batavia Coast Caravans on 7 August 2014, under instruction by the respondent, 4. August 2014 the applicant became aware of water ingress following rain and on 7 September 2014 water damage under the refrigerator and kitchen cabinets and toilet areas which appeared to be coming through wall panels was noted, 5. 9 September 2014 the applicant sought a refund of the purchase price based on electrical faults and water ingress through the roof, 6. 27 October 2014 caravan inspected and found to have faults with the brakes and ESC system causing wheel lock when activated and further water leaks in the bathroom area, 7. Lack of access to the caravan whilst AVIDA carried out repairs from January to April 2015, 8. March 2015 admission by respondent of 21 defects and agreement to raise issues with the supplier, 9. 5 May 2015, further electrical problems found, 10. June 2015 caravan electrical system failure and continuing braking problems resulting in further approved warranty repairs being undertaken in Dubbo, 11. 1 August 2015 electrical fault and brake malfunction resulting in further warranty repairs including water ingress, 12. 7 December 2015 respondent accepts continuing water leaks but AVIDA unable to attribute to roof and side ally sealant, 13. February to April 2016 caravan again unavailable to applicant whilst in AVIDA's possession for repairs, 14. June 2016 brake faults, 15. 13 April 2017 the applicant again rejects the caravan on the basis of major failure and seeks a full refund. Unrepaired faults identified at that time were said to be

• Water ingress from roof, rear corner, boot, window,
• Faulty braking system,
• Faulty electrical system causing short circuits and flashing lights,
• Faulty re-arc solenoid,
• Leaking plumbing,
• Finishes, including cracks to front wall skin,
• Non-compliant wiring,
• Over-stamped compliance plate. 1. 22 September 2017 offer by respondent to repair current defects, 2. 16 July 2018, respondent's expert (Muriti) admits six manufacturing defects still existing,
• Cracks to front wall of external skin,
• RH bed-light fallen off,
• Gas hot water heater requires switch installation,
• Sharp points protruding through cabinets,
• Compliance plate over-stamped,
• Electrical fault on LH overhead bed.

1. Reliance was placed on the following principles set out in the decision of the Federal Court in Vautin v BY Winddown, Inc (formerly Bertram Yachts)(No 4) [2018] FCA 426 per Derrington J, in considering s 54-56 of the ACL, 1. The test of whether goods are of "acceptable quality" is an objective one being taken from the perspective of a "reasonable consumer", 2. The question for the "reasonable consumer" is whether the goods in question have the qualities set out in s 54(2) to an "acceptable standard", 3. The "acceptable standard" is ascertained by consideration of the matters referred to in s 54(3), 4. It is necessary that the goods have all of the qualities identified in s 54(2) to the ascertained acceptable standard, 5. In assessment of whether the goods meet that relevant standard, the reasonable consumer is taken to be fully acquainted with the state and condition of the goods (including any hidden defects) and includes the relevant information known at the time of trial including "after-acquired knowledge", 6. If the goods supplied do not have all of the identified qualities to the acceptable standard, they will not be of an "acceptable quality", 7. The test of "acceptable quality" under s 54 imposes an obligation that the goods in question are free from defects as well as being fit for all of the purposes for which they are commonly supplied.
2. The caravan was represented on the sale contract as a "new vehicle" and it was also represented on the AVIDA documentation as having been manufactured "in accordance with the highest national standards for safety and quality of care" and generally that it was manufactured in accordance with rigorous quality assurance programs.
3. It was also represented on documents provided by the respondent as having

• Thicker, stronger body construction,
• Strong roofs, strong enough to walk on,
• One piece nose to tail roof,

1. In respect of the applicant's claim under the ACL s 55 it was the applicant's submission that the purposes for which a caravan of this kind would be commonly supplied include extended holidaying around Australia and for residing in it for weeks or months in varying weather conditions. The applicant purchased and used the caravan for that purpose.

Water ingress

1. The applicant gave evidence that he had noticed water ingress only a month after delivery and that he saw water ingress after rain only two months after purchase. In September 2014 Mr Ross recorded evidence of water ingress and consequential damage under the fridge and kitchen cabinets and to the flooring under the toilet.
2. Further, the respondent admitted and undertook repairs to damage from water ingress in March, July, October and December 2015. In December 2015 the manufacturer had acknowledged ongoing water ingress.
3. The applicant gave uncontested evidence of continuing water ingress issues which was corroborated by further complaints to AVIDA following the last repairs and provided photographs taken as recently as 22 June 2018 depicting the problem.
4. The opinion of Mr Muriti, for the respondent, that the water ingress was of the applicant's making could not be substantiated because Mr Muriti's evidence was that the seals had not been replaced in servicing the caravan. No tests were conducted to demonstrate that was the cause of water ingress and Muriti admitted under cross-examination that he was unaware of the date of purchase of the caravan, the date of complaints regarding water ingress or the dates of services conducted on the caravan.
5. Mr Muriti's evidence, it was submitted, should be given little weight in light of him steadfastly maintaining a position adverse to the applicant in circumstances where it was shown that there had been water ingress only months after purchase which had been reported to the respondent and when the caravan had been serviced in December 2014.
6. Further, the respondent's contention that lack of servicing was the cause of water ingress was inconsistent with the time-line of events. The water ingress was identified by the applicant in August 2014 on his first trip in the caravan.
7. The caravan was in AVIDA's possession from January to April 2015 at which time a service was conducted. That service included visual inspection of roof and window sealants. No issues were identified by AVIDA at that time in regard to the seals and AVIDA accepted that water ingress was continuing. Despite repairs said to have been undertaken by AVIDA the applicant again complained of water ingress in May, July, October and December 2015.
8. The respondent at no time advised the applicant of the need to service the seals and the owner's manual relied on by the respondent to demonstrate the owner's responsibility in that regard had never been provided to the applicant and in fact post-dated the date of sale of the caravan. The applicant's evidence was that the manual actually provided to him contained no information on servicing of the seals.
9. The respondent's suggestion that water ingress could have been caused by lack of servicing by the applicant is not rational. On the balance of probabilities the most likely explanation is that water ingress issues continued and attempts at resolving that issue were unsuccessful.
10. The Tribunal should, it was submitted, find that there is water ingress to the caravan and that such ingress is due to a defect in the caravan.
11. A caravan that leaks cannot be of acceptable quality. Ongoing leakage shows that it is not durable. There is evidence of electrical cables lying in the water which raises concerns of safety. Self-evidently the caravan is not fit for the purpose of providing accommodation in the course of extended holidaying in potentially inclement weather.
12. The defect is a major failure because no reasonable consumer would purchase a caravan for $68,000 knowing that it leaks, the source of the leaks cannot be identified and significant time and effort would be expended to identify the cause and remedy the defect.
13. In view of the fact that water ingress was identified soon after purchase, the respondent has unsuccessfully attempted repairs on at least four occasions and now denies responsibility for the water ingress, rectification of the defect is, on the balance of probabilities, not possible or not possible within a reasonable time.

Faulty Braking System

1. The braking defect complained of by the applicant related to the ESC (electronic stability control) which was said to activate when turning corners causing the brakes to be applied on the caravan and the ESC activating when reversing into sites resulting in the caravan brakes having to be disconnected.
2. Mr Walton conducted a road test and confirmed those defects.
3. The respondent did not provide any evidence that the fault did not exist or that it did not constitute a defect, although Mr Pearce did comment that he had not observed the defect on a journey of 51km. Mr Muriti did not conduct a road test.
4. Although Mr Walton admitted under cross-examination that he had no professional experience with caravans his evidence was that his experience with buses and heavy vehicles gave him an understanding of the operation of ESC systems.
5. In any event Mr Walton's lay evidence of his experience whilst driving and towing the applicant's vehicles corroborates the applicant's evidence on the issue.
6. The applicant's evidence was that it was an ongoing issue with the caravan and constitutes a major failure. No reasonable consumer, it was submitted, would buy a caravan with a braking system that would intermittently and without warning activate under normal driving conditions.
7. The lack of evidence from the respondent and its failure to rectify the problem means that the defect cannot be remedied easily and within a reasonable time.

Non-complaint wiring

1. The third major failure alleged by the applicant relates to non-compliance with mandatory Australian Standards for wiring and gas installation.
2. Mr Muriti, for the respondent, acknowledged that the gas installation is non-compliant and requires a window switch to prevent accidental inhalation of gas fumes.
3. In regard to the wiring the relevant Australian Standard as identified by Mr Muriti is in evidence. It relevantly provides that the wiring system shall maintain a separation of not less than 25mm from any above ground gas or water piping. From the coloured photographs provided, which Mr Muriti conceded to be an accurate representation of the wiring, the Tribunal can conclude that the wiring is not compliant with the standard.
4. There is no evidence that the requisite separation could not be achieved. Further Mr Muriti's evidence should be rejected because of his refusal to make obvious concessions and his failure to acknowledge his lack of expertise to make any comment on the electrical wiring.
5. The wiring is, on the balance of probabilities, non-compliant and the gas installation is accepted by the respondent as non-compliant. Both of these raise issues of safety. It was submitted that a caravan that is non-compliant on such obvious safety issues cannot be of acceptable quality or fit for purpose.
6. It constitutes a major failure. No reasonable consumer would have acquired a caravan, particularly in the context of the price paid and the representations as to build quality, in the knowledge that it was non-compliant with the standards for electrical wiring and gas installation.

General defects

1. Finally the applicant's submission was that the very number of defects identified and rectified at various times, taken together, amount to a breach of s 54 and that they are of sufficient significance to amount to a major failure. The caravan was with the respondent for repairs on ten separate occasions between March 2014 and April 2016 and the applicant has estimated that the caravan was with the respondent for repairs or unable to be used for a total of 586 full days for the period May 2014 to May 2017.
2. An example referred to in submissions was the cracked 240V inlet which was identified for warranty repairs even before delivery of the caravan to the applicant. It was claimed to have been rectified on a number of occasions but remains outstanding and the respondent now denies liability for it.
3. No reasonable consumer, it was submitted, acquainted with the range of defects and the time to repair them, knowing that some of those defects would still be outstanding more than three years after purchase, would acquire the caravan.

Claim under s 56 - supply by description and misleading and deceptive conduct

1. The further submission was that the applicant contends that the supply of the caravan was in breach of the guarantee provided under s 56 and/or constituted misleading and deceptive conduct within the meaning of the ACL s 18 in that 1. The caravan was represented to be newly built but was in fact a display model, 2. The caravan was represented as being built by WINNEBAGO USA or an affiliate when in fact it was built by AVIDA which was at that time prohibited by the Federal Court from asserting such affiliation, and 3. The caravan was represented as having a tare mass of 1788kg and an ATM rating of 2400kg resulting in a load capacity of 612kg when in fact the tare mass was 1920 kg, the ATM was 2200kg, giving a load capacity of just 280kg.
2. It was the applicant's submission that if any one of the above claims are substantiated he is entitled to a full refund under the ACL s 263(4)(a) as each constitutes a departure in a significant respect from the representation and would have led a reasonable consumer, fully acquainted with the true state of affairs, not to purchase the caravan.
3. There is no dispute between the parties that the caravan in fact supplied to the applicant was the display unit on show on 28 April 2014 at the Rosehill Caravan and Camping Show.
4. The applicant's submission was that the Contract of Sale dated 6 May 2014 and signed by the applicant on 23 May 2014 was largely blank at the time of delivery of the caravan and the applicant signed what he thought to be a declaration related to the trade in vehicle. The applicant, it was submitted, was unshaken on this point in cross examination. His statement should be accepted because the contract as written underquotes the total price and the trade-in value, something the applicant would have been unlikely to accept and which could only benefit the respondent. Secondly, an email dated 17 September 2014 when the error came to the applicant's attention on returning from his travels brought that discrepancy to the respondent's attention.
5. The caravan was in fact manufactured in 2013 and the Tribunal should therefore be satisfied that the respondent was in breach of s 56 and engaged in misleading and deceptive conduct. Further the supply in those circumstances amounts to a major failure.

Affiliation with Winnebago USA

1. The applicant's caravan is badged with the Winnebago emblem. The applicant's evidence was that Mr Rachford represented to him that Winnebago was an Australian company started after World War 2 and a builder of caravans. There was no evidence to the contrary from Mr Rachford.
2. The applicant relied on the decision of the Federal Court in Knott Investments Pty Ltd v Winnebago Industries, Inc (No 2) [2013] FCAFC 117 which was submitted to be authority that the Court had imposed a restriction on the respondent that the Winnebago emblem was not to be used on a vehicle without clearly stating "This vehicle was not manufactured by, or by anyone having associations with, Winnebago of the United States". Further the decision of the Court required that the purchaser must sign a form stating that they were informed that the vehicle was not manufactured by, or by anyone having any association with, Winnebago of the United States.
3. No disclaimer was attached to the vehicle and the applicant was never required to sign a form to the above-mentioned effect.
4. The applicant was in fact deceived by the badge and salesman's statement.

Tare Mass

1. The Tare Mass as represented to the applicant on the specifications attached to the contract of sale specified that the Tare Mass was 1778kg. The Evidence of Mr Young was that the Tare Mass was 1788kg, whilst a weigh bridge certificate showed that the actual Tare Mass was 1920kg.
2. The ATM was required to be recorded on the caravan's trailer plate. In this case both 2200kg and 2400kg were recorded as the ATM.
3. Noting that it is only the respondent who can provide the correct ATM and that no evidence was provided on that point, the Tribunal should conclude that the ATM was in fact 2200kg. Accordingly the load carrying capacity of the caravan was incorrectly stated to be 412kg when the correct figure is 280kg.

The Relief Claimed

1. If the Tribunal is satisfied that there was one or more breach of s 54-56 and that such breach was a major failure, the applicant is entitled to reject the caravan and elect either a replacement or refund.
2. By correspondence to the respondent on 9 September 2014 the applicant sought that relief. On 13 October 2017 the applicant again notified the respondent of the exercise of his right to reject the caravan and to seek a full refund.
3. It was submitted that the applicant is excused from the obligation under the ACL s 262 to return the caravan to the respondent due to the exemption provided under s 263(2)(b)(ii) based on its size. In that regard the applicant relied on the decision of the Federal Court in Ferraro v DBN Holdings Australia Pty Ltd [2015]FCA 117 where it was held that a motor car was not returnable because of its size.
4. It was further submitted that if the Tribunal was of the view that there is a major failure then it must order a full refund. There cannot be any discount for depreciation because of the wording of s 263(4), which is in mandatory terms.

Damages

1. The applicant made no final submission on the issue of damages relating to the heads of damage identified in his Points of Claim but sought to be heard further on those issues if the Tribunal determined that it was not satisfied that a "major failure" had occurred.

The Evidence

1. Mr Collin O'Neill and Mrs Christine O'Neill both gave evidence in person, on affirmation, and were cross examined on their evidence. The applicant further relied on the evidence of Mr Michael Ross who gave evidence in person, on affirmation and was cross examined on his evidence.
2. Mr David Walton and Mr Colin Young were each granted leave to give evidence by telephone and were cross examined.

Respondent's relevant submissions

1. The respondent raised three issues from the hearing relating to what was described as the "inexcusable conduct of the applicant".

Attempting to pervert the course of justice

1. The applicant had sought to rely on two reports, said to have been prepared by Mr Michael Ross, in circumstances where Mr Ross did not prepare the reports and did not know who had prepared them.
2. The transcript of the proceedings, specifically the cross-examination of Mr Ross, was relied on to substantiate the allegation.
3. The applicant had manufactured evidence and used it as if prepared by Mr Ross in an endeavour to pervert the course of justice. Further, the only reasonable inference to be drawn from the exchange with Mr Ross was that Mr Ross had in fact prepared a report but that it had not been used and that two other reports were falsely represented to the Tribunal as being from Mr Ross.
4. Reliance was placed on the decision of the New South Wales Supreme Court in Marsden v Amalgamated Television Services [2001]NSWSC 510 for the proposition that "….a party's falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct, is receivable against him as an indication of his consciousness that his case is a weak or unfounded one…"
5. In Palavi v Queensland Newspapers Pty Ltd [2011]NSWSC 274 it was held by Nicholas J "I find that the acts of the plaintiff had a tendency, and were intended, to pervert the administration of justice. This is because by so acting the plaintiff denied the court and the defendants' knowledge of the true circumstances of the case and thereby perverted or obstructed the capacity of the court to do justice…."
6. In those circumstances, it was submitted, where the applicant has deliberately sought to mislead the Tribunal, the contumelious disregard for the proper administration of justice must result in the applicant's claim being dismissed in its entirety.

Disingenuous application to give evidence by telephone

1. The respondent referred to the application by the applicant's counsel at the commencement of the hearing for the applicant to give evidence by telephone on the basis that the applicant was too ill to give evidence in person and to be cross examined on his evidence without risk of medical complication.
2. When the application was refused after some hours of argument it transpired that the applicant had been present at the Tribunal and waiting outside and was in fact ready to give evidence in person and to be cross examined on it.
3. The application, it was submitted, was disingenuous and was indicative of the applicant's conduct in the proceedings being wholly unsatisfactory and was a relevant matter when considering the veracity of the applicant's evidence given under cross examination.

Refusal to compromise the claim

1. On two occasions the Tribunal had adjourned for the parties to engage in settlement discussions. On the first, the applicant had refused to compromise. On the second the applicant had made an offer but had subsequently withdrawn it.
2. Following the evidence of Mr Ross the Tribunal again gave the parties an opportunity to compromise but the applicant insisted on proceeding with the matter.
3. The applicant's obstinacy was further demonstrated by his refusal to abandon the claim for disappointment, distress, upset and frustration when such claim was clearly not within the Tribunal's jurisdiction.
4. The applicant's steadfast refusal to engage in meaningful settlement discussions is indicative of the claim being unmeritorious and designed to unjustly obtain a financial windfall.

The claims under the ACL s 54 and 55

1. In regard to the applicant's reliance on the contract document executed on 23 May 2014, the respondent's submission was that the contract was already entered into on 28 April 2014 as evidenced by the invoice 403 and the applicant could therefore not rely on any representation made after the 28 April 2014. Further there was no evidence as to when the representations in relation to manufacturing standards provided in the documents had been made or that the applicant relied on them. In fact one of the documents relied on was about AVIDA, not the respondent and appeared to be a news article.
2. In any event, the applicant provided no evidence that the representations were not true.
3. Mr Darren Pearce, for the respondent, was the only witness to give evidence about the "nose to tail" roof construction and it must therefore be concluded that the caravan in fact has a one piece nose to tail roof.
4. The applicant's own evidence demonstrated that he had not taken seriously any comments about the caravan being "bulletproof" and there was no evidence that the claim that the caravan was a multi-terrain vehicle was untrue.
5. In regard to the three main points of contention raised by the applicant, namely

• Water ingress,
• Faulty braking, and
• Non-compliant wiring and gas installation, it was the respondent's position that there was no evidence that any of the faults exist.

1. The applicant's assertions were not supported by expert evidence and the respondent relied on the decision of the Tribunal in Kadiroglu v Australian Motor Homes Pty Ltd and Knotts Investments Pty Ltd t/as AVIDA RVs [2018]NSWCATCD 21 for the proposition that there must be expert evidence to support the applicant's contentions regarding the defects. In addition reference was made by the respondent to a remark by myself, made during the hearing, to the effect that expert evidence is germane to a determination of whether a defect exists.
2. In regard to the expert evidence relied on by the applicant the respondent's submission was to the following effect.
3. Mr David Walton, under cross examination, acknowledged that his experience was limited to heavy vehicles, not caravans, and that he had no qualifications in relation to construction or maintenance of caravans. Mr Walton further acknowledged that he had only basic electrical qualifications and the NCAT Procedural Direction 3 for Expert Witnesses had not been brought to his attention.
4. Mr Walton had no professional experience with caravans, his evidence is unreliable and no weight should be given to it.
5. Mr Michael Ross was also relied on by the applicant as an expert witness. It is clear, it was submitted, that Mr Ross did not write all of the statements relied upon and in fact they were written by some unidentified person and for that reason alone the Tribunal should give no weight to Mr Ross' evidence.
6. Further, Mr Ross did not understand his obligations to the Tribunal and had not been shown the NCAT Procedural Direction 3 for Expert Witnesses and had no specialised knowledge or training that qualified him to give expert evidence in this matter.
7. Ms Serena Franklin provided a short statement relied on by the applicant. However, Ms Franklin was not present for cross examination, did not provide her qualifications so that it could be determined whether or not she is in fact an expert, did not acknowledge the Expert Witness code and was not referred to in the applicant's written submissions.
8. When there has been no opportunity to test Ms Franklin's evidence the Tribunal should not give any weight to it.
9. The applicant also relied on a written statement from Mr Keith Johnson. Mr Johnson was not available for cross examination and in any event he is the brother-in-law of the applicant and cannot be regarded as an independent expert. No weight should be given to Mr Johnson's evidence.
10. As no weight can be given to the evidence of Mr Walton, Mr Ross, Ms Franklin or Mr Johnson, the applicant has provided no expert evidence to support the proposition that the three main defects complained of exist.
11. Mr Muriti, expert witness for the respondent, on the other hand was an impressive witness. His evidence was that re-application of sealant is considered normal practice at regular service intervals and is the responsibility of the owner.
12. In regard to the allegedly faulty braking system, there was no evidence from Mr Muriti. The evidence from Mr Ross and Mr Walton should be rejected for the reasons already stated and the conclusion reached that the applicant had not established that there was any defect with the braking system.
13. Mr Muriti gave evidence that he would have certified the existing gas installation. Further, Mr Muriti conceded that he was not qualified to certify the wiring but opined that the photographs showed that the conduit is compliant. Further, the electrical system had been properly certified by an electrician.
14. The Australian Standard relied on by the applicant has not been shown to be the correct standard to apply, and it is not possible to interpret that standard without a definition of "wiring systems".
15. The applicant has not discharged his onus of proof that there is any defect in the electrical wiring of the caravan or the gas installation.
16. In regard to the applicant's submission that the number of defects identified and rectified at various times is itself a breach of s 54, it was the respondent's position that the applicant must prove each and every one of the alleged defects. It could, for example, be the case that all repairs that were done were based on the goodwill of the respondent in attending to issues that were the responsibility of the applicant. Reliance for that submission was placed on the comment made by Mr Pearce under cross examination that in resolution of the applicant's earlier proceedings some of the defects were agreed to be done "just as goodwill".
17. The claim under the ACL s 56 and misleading and deceptive conduct

Affiliation with Winnebago USA

1. There is no evidence that the applicant relied on the statement alleged to have been made by Mr Rachford in regard to the caravan being made by WINNEBAGO. On the contrary, the applicant acknowledged that he had read invoice 403 before signing it. The invoice made no reference to "WINNEBAGO" but referred to "AVIDA Shoalhaven" and under "Description of AVIDA model purchased" the model was noted to be "AVIDA Sapphire". Furthermore the attachment to the invoice 403 also referred to "AVIDA Built in Australia for Australians". Any representation that may have been made about WINNEBAGO was therefore displaced and not relevant by the time the applicant signed invoice 403.
2. The Tribunal cannot find that the alleged representation about WINNEBAGO mislead or deceived the applicant. The applicant was supplied with what he contracted for.

Tare mass

1. Mr Pearce gave unchallenged evidence that the caravan weighed 1788kg when it left the manufacturer. He also gave evidence that the higher mass of 1920Kg measured later could have been due to water within the walls due to floor seals not having been serviced.
2. Further, the applicant could only have been misled if he relied on the Tare Mass of 1788kg at the time of purchase and it is shown to be incorrect. There is no evidence that the applicant relied on a Tare Mass of 1788kg to purchase the caravan.

New vehicle issue

1. The respondent's submission was that the applicant had contracted to purchase the caravan on display at the Rosehill Caravan and Camping Show on 28 April 2014 which was a demonstrator vehicle within the meaning of the Motor Dealers and Repairers Act 2013 s 61. Reliance was placed on the evidence of Mr Buikstra and Mr Rachford that the vehicle actually sold and described on the invoice prepared on 28 April 2014 was a demonstrator caravan.
2. Accordingly the vehicle could not satisfy the definition of a new motor vehicle and the Tribunal's jurisdiction was therefore limited to making orders for not more than $40,000.
3. The applicant's evidence regarding the notation on invoice 403 that the VIN number and words "display unit" related to the colour of the selected caravan was implausible and should not be accepted it was submitted.
4. Inherent in the respondent's submission although not articulated is the proposition that if the applicant did contract to purchase a demonstrator that was on display then there had been no breach by the respondent of the ACL s 56 and no misleading or deceptive conduct in that regard.
5. As the claim exceeds $40,000 and the Tribunal has no power to make the order sought, it was submitted that it was open to the Tribunal to find that it has no jurisdiction in the matter.

The relief claimed

1. It was the respondent's position that the letter of rejection sent by the applicant to the respondent on 9 September 2014 cannot now be regarded as a notification provided pursuant to the ACL s 259(3)(a) because the parties settled their dispute and the applicant thereafter continued to use the caravan in a manner that was inconsistent with a "rejection of the goods".
2. The respondent however conceded that the letter sent by the applicant to the respondent on 13 April 2017 did give the respondent notice that the applicant rejected the caravan and the reasons for doing so.
3. However that letter, it was submitted, was not sent within the rejection period provided for under the ACL s 262. The "rejection period" is the period from the time of supply of the goods within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in s 259(1)(b) to become apparent having regard to 1. The type of goods, and 2. The use to which the consumer is likely to put them, and 3. The length of time for which it is reasonable for them to be used, and 4. The amount of use to which it is reasonable for them to be put before such failure becomes apparent.
4. Following the agreement reached by the parties on 2 March 2015 the applicant has taken the caravan on a long trip in June 2015 and again in May/June 2016. It would be reasonable, it was submitted, to expect any major failure to become apparent by that time, that is, within two years of the date of supply.
5. The rejection notice was in fact issued nearly three years from the date of supply.
6. Further it was argued the applicant had acted inconsistently with his rejection letter of April 2017 by requiring the respondent to return the caravan to him after each occasion the respondent had access for the purpose of inspection by expert witnesses.
7. In addition, the respondent's submission was that the applicant is under an obligation pursuant to ACL s 263(2) to return the goods. The respondent's submission was that it was a mandatory requirement that the applicant return the caravan to the respondent in order to claim a refund unless it could not be returned because of significant cost due to the nature of the failure or its size. The size alone is not the determinative factor but rather the cost of returning the goods that provides an exemption.
8. There was no evidence that the applicant was unable to return the caravan or that there would be significant cost in doing so. In fact, the applicant under cross examination acknowledged that he was unaware that he could have returned the caravan.
9. Even if the Tribunal finds a "major failure" of the goods, the Tribunal is precluded from ordering a refund because the applicant has not returned the caravan to the respondent as required by the ACL s 263.

Damages/compensation

1. The respondent made submissions and provided case law in support of the proposition that the applicant is not entitled to be compensated in damages.
2. In view of the failure of the applicant to address those issues it is not necessary to deal with the respondent's submissions on that issue.

The Evidence

1. The respondent relied on the evidence of Mr Glenn Buikstra, Mr Darren Pearce and Mr Grant Muriti, who were all present in person, gave evidence on affirmation and were cross examined on their evidence. In addition the respondent relied on the evidence of Mr Owen Rachford who was granted leave to give evidence by telephone.

The witnesses

1. Mr Collin O'Neill, the applicant, gave evidence on affirmation and was cross examined on his evidence. Mr O'Neill was hampered in his evidence by the fact that a clear and comprehensive witness statement had not been filed by him at any time despite the matter being in the Tribunal for a year and a half.
2. Nevertheless, he confirmed the matters set out on the application form itself, the service and repair records he had written himself and the summary details of purchase appearing at Tab 3, p 5 of his filed documents as his evidence. Mr O'Neill did acknowledge that to the extent that the statements expressed expert opinion evidence they should be disregarded.
3. Mr O'Neill also confirmed that he had taken the photographs appearing at Tab 10 of his documents and relied on the correspondence between himself and the respondent at Tabs 5, 8 and 12.
4. Under cross examination Mr O'Neill confirmed that he had not inspected the interior of the AVIDA Sapphire caravan on display on 28 April 2014 because he could not gain access to it.
5. At times the witness was aggressive with counsel and constantly interrupted counsel. Some answers to questions appeared to be disingenuous and lacked frankness and from time to time the witness changed his evidence or prevaricated.
6. Despite those shortcomings in Mr O'Neill's evidence I am satisfied that the over-all tenure of his evidence was truthful and to the best of his recollection. Mr O'Neill may have been showing some frustration with the process and the length of time it had taken him in seeking redress.
7. Mrs O'Neill also gave evidence on affirmation and was cross examined. Her recollection of the transaction on 28 April 2014 consisted of looking into several different caravans and having a cup of tea. Mrs O'Neill could not remember being present when invoice 403 was completed but remembered requesting a number of specific features for the caravan.
8. The applicant relied on two reports, ostensibly prepared by Mr Michael Henry Ross, dated 7 September 2014 and 31 October 2017.
9. The Tribunal's Code of Conduct for Expert Witnesses is set out in the NCAT Procedural Direction 3 which is readily available on the Tribunal's web-site. The introduction to that code notes that "the Tribunal may rely on evidence from experts to reach a conclusion about a technical matter". It is therefore important that experts' opinions are soundly based, complete and reliable.
10. It is the party's responsibility who engages the expert to bring the Procedural Direction and Code of Conduct to the expert's attention (clause 8).
11. The rationale embodied in requiring an expert to acknowledge and adhere to the expert Code of Conduct is to maximise the Tribunal's ability to assess how it should resolve technical disputes between individuals and to reinforce the Tribunal's confidence on expert material placed before it.
12. The reports provided by Mr Ross did not comply with the Code of Conduct for Expert Witnesses. There was no indication that Mr Ross had read the Code, understood it or agreed to be bound by it. There was however, in the report dated 31 October 2017, some acknowledgement of some unspecified Court Form that perhaps was intended to refer to this issue but does not satisfy the Tribunal's requirement to have confidence in the quality and independence of the report and the qualifications for expressing the opinions provided.
13. Further, under cross examination Mr Ross acknowledged that he had not written either of the reports submitted in his name. On leaving the witness box Mr Ross addressed a question to the Tribunal in the following words "What about the report I wrote. What happened to the report I wrote".
14. Mr Ross was directed to take up that issue with the applicant and his legal advisers.
15. Clearly the implication from the exchange, as suggested in the respondent's submission, is that the report Mr Ross actually prepared was not in evidence but two reports that he did not write were relied upon.
16. In the above circumstances I am not satisfied that I can rely on any evidence given by Mr Ross and accordingly no weight is given to any of his evidence.
17. Suffice to say that the Tribunal is entitled to be able to rely on the veracity of expert witness statements and in the case of Mr Ross' evidence it cannot do so.
18. The respondent's submission makes much of this point and suggests that it is sufficient for the Tribunal to dismiss Mr O'Neill's claim without further consideration. No authority is put forward for the proposition that the Tribunal has any power to do so.
19. The Tribunal is not aware of the identity of the author of the two reports relied on and is not even aware whether the applicant had any personal role in preparation of that material. Hence, the Tribunal's only response to the evidence of Mr Ross is that it is rejected as being of no assistance to the Tribunal.
20. Mr David Walton also gave opinion evidence on behalf of the applicant. Accordingly that evidence must be considered as expert evidence. The evidence was in the form of a report dated 29 October 2014 and another prepared after an inspection that took place on 19 April 2017. Again there was no acknowledgement that the witness had adopted the Expert Witness Code of Conduct or that he even knew about it. Clearly the applicant had failed to draw it to his attention. Mr Walton did however provide a resume of his education, employment history and courses undertaken.
21. Mr Walton admitted under cross examination that he had no qualification in the maintenance or construction of caravans or in regard to their ESC systems.
22. Strict adherence to legal technicalities is not required in the Tribunal. The Tribunal "..is not bound by the rules of evidence and may enquire into and inform itself on any matter in such manner as it thinks fit…"

Civil and Administrative Tribunal Act 2013 s 38(2).

1. It is not uncommon for the technical evidence provided to the Tribunal to be unsatisfactory in a way that may not satisfy a Superior Court but that does not mean that the Tribunal should reject it in its entirety. Sometimes the Tribunal will be assisted in a technical matter by a notation made on an invoice. The fact is that the Tribunal must do its best with the evidence available to it.
2. A failure to comply with the Expert Code of Conduct therefore may result in the Tribunal attributing less weight to that evidence than would otherwise be the case but without rejecting it completely.
3. In regard to Mr Walton's evidence, to the extent that it purports to give an opinion of a technical nature the evidence must be rejected as having been given by a person without the qualification to express the opinions given. However, Mr Walton also test towed the subject caravan and experienced some braking problems. I see no reason why Mr Walton's evidence on that issue should be rejected.
4. The evidence was that on the test tow the ESC and brakes were activated on a sharp left turn. Under cross examination Mr Walton admitted that is exactly what one would expect to happen on a sharp turn.
5. Mr Walton also gave evidence that on reversing the caravan the brakes locked up and made it difficult to park. Under cross examination Mr Walton disagreed with the proposition put to him that the brakes should be turned off when parking the caravan.
6. On this one point, that there was a problem with the brakes locking up when reversing the caravan, I am satisfied that the Tribunal can place some reliance on Mr Walton's evidence.
7. A statement from Ms Serena Franklin was filed with the applicant's material but it is not clear whether the applicant relies on that statement. Ms Franklin was not called to give evidence and was not cross examined. The report was not in the form of an affidavit or Statutory Declaration. Again no acknowledgement of the Code of Conduct for Expert Witnesses was made and the author of the statement gave no explanation of her qualification for providing her expert opinion.
8. In those circumstances little weight is given to Ms Franklin's report.
9. Two short statements from a Mr Keith Johnson were provided by the applicant. Again, no submission is made in regard to the content of those statements and it is not clear whether the applicant relies on those statements. Again the author fails to indicate any understanding or adherence to the Code of Conduct for Expert Witnesses set out in Procedural Direction 3, although the second statement does attempt to address these shortcomings by reference to some unspecified Code of Conduct. In view of the close familial and commercial relationship between the author and the applicant the Tribunal cannot be comfortable that the opinions expressed are independent.
10. Little, if any, weight is given to the opinions expressed by Mr Johnson.
11. A statement from Mr Colin Young was provided by the applicant. Mr Young gave evidence by telephone and was cross examined on his evidence. He was not sworn.
12. Mr Young did provide some details of his qualifications and experience and attempted to satisfy the obligations regarding the Expert Witness Code but again by reference to some meaningless Court Form which is nothing to do with this Tribunal. Much of Mr Young's report was not pressed. It is noted that Mr Young's opinion is based solely on (unspecified) information provided by the applicant's (unnamed) representative and documents attached to the report.
13. The Tribunal accepts the evidence given by Mr Young but will have further comments later.
14. Mr Owen Rachford gave evidence on behalf of the respondent by telephone. Mr Rachford was cross examined on his evidence. Although Mr Rachford gave evidence intended to go to the issue of what had passed between himself and the applicant on 28 April 2014, Mr Rachford's evidence was informed by his recollection of his normal practices rather than by any actual memory of the transaction. That is not a criticism of Mr Rachford but it is relevant to the comparative weight to be given to his evidence when comparing it to that of Mr O'Neill.
15. Mr Darren Pearce, the quality manager for AVIDA, provided a witness statement with attached documents. Mr Pearce gave lay evidence in support of the respondent and was cross examined on his evidence. One of the documents attached to Mr Pearce's statement was a document titled "Assessment of AVIDA CV 5422 Sapphire registration No Z65624, Serial # 10218" which purports to be a report following an inspection of the caravan on 18 June 2018.
16. Mr Pearce acknowledged under cross examination that he has no expertise to express the opinions contained in that report.
17. Mr Grant Muriti carried out an inspection of the caravan and provided a report dated 16 July 2018. The report was in the nature of expert evidence and quite properly set out Mr Muriti's qualifications, the instructions on which the report was based and its limitations. It also acknowledged the Tribunal Code of Conduct and agreed to be bound by it. Mr Muriti adopted his report on affirmation and was cross examined on it.
18. However, in the face of assumptions put to Mr Muriti in cross examination his opinion remained unchanged when it was patently obvious that he could not maintain his position. In those circumstances Mr Muriti's evidence was partisan and he was not fulfilling his obligation to the Tribunal in accordance with the Code of Conduct that he claimed to have adopted.
19. Mr Buikstra for the respondent gave lay evidence, the essential substance of which is not in dispute.
20. Thus, it can be seen that there is very little assistance afforded the Tribunal by the expert evidence provided by the applicant. There were also some difficulties with some of the expert evidence provided by the respondent which go to the reliability of that evidence.

The claim under ACL s 56, misleading and deceptive conduct

1. The applicant's submission groups the claim under s 56 and under s 18 together. Although some of the elements necessary to establish a breach of the guarantees under s 56 may coincide with the matters constituting misleading and deceptive conduct under s 18, the remedies in each case are quite different.
2. The remedy provided under the ACL for breach of s 56 is found in the ACL Part 5-4, s 259, et seq. The remedy provided for misleading and deceptive conduct is founded in a claim for damages under s 236.
3. The applicant has made no submissions in regard to the damages arising from alleged breach of s 18 but seeks to have another hearing on that issue in the event that the Tribunal does not make a finding of "major failure" in regard to the alleged breaches of consumer guarantees.
4. I cannot understand why the applicant would think that the Tribunal would re-open a matter that has been run for two days and in which the parties have had every opportunity to put on all of their evidence and make all of their submissions.
5. As already mentioned the Tribunal is of the view that the respondent failed to supply a new caravan in accordance with the contract and as represented to the applicant. Such a failure could well amount to a breach of the ACL s 18. However, it is not clear what, if any, damages flow from that breach. The matter is finalised and no further hearing on the issue of damages will be conducted. Hence the Tribunal is unable to make any orders for damages arising from breach of s 18 and will not consider that aspect of the applicant's case further.
6. Nevertheless, the applicant ran a case based on alleged breach of the consumer guarantees provided under s 56 and sought the remedy available under ACL Part 5-4. That is the application that will now be considered.
7. There were three elements to the applicant's claim in this regard. 1. The caravan was agreed to be a new caravan but was in fact a second-hand one, 2. The caravan was built by Winnebago USA, or an affiliate of that company, when in fact it was manufactured by AVIDA, 3. The Tare Mass and ATM were incorrect, resulting in a reduced load carrying capacity.
8. The ACL s 56 provides
9. Guarantee relating to the supply of goods by description (1) If: (a) a person supplies, in trade or commerce, goods by description to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods correspond with the description. (2) A supply of goods is not prevented from being a supply by description only because, having been exposed for sale or hire, they are selected by the consumer. (3) If goods are supplied by description as well as by reference to a sample or demonstration model, the guarantees in this section and in section 57 both apply.

Was there a breach of s 56 in regard to the caravan being new?

1. As set out above under the heading Jurisdiction I am satisfied that the contract entered into between the parties comprised several documents and included some agreed oral terms. Further, as already determined I am satisfied that the contract called for supply by the respondent to the applicant of a new motor vehicle (caravan). It is not in dispute that the respondent supplied a caravan that had been manufactured in 2013 and was used by the respondent for display purposes at the Rosehill Caravan and Camping Show in April 2014 and therefore comes within the definition of second hand motor vehicle.
2. I am satisfied therefore that the respondent is in breach of the guarantee provided by s 56 in that the goods described in the contract of sale did not correspond with the goods supplied.

Was there a breach of s 56 in regard to the named manufacturer?

1. In regard to this issue the applicant has made much of the orders of the Federal Court in the matter of Knott Investments Pty Ltd v Winnebago Industries Inc (No 2) [2013]FCAFC 117, and the alleged breach of those orders by the respondent. It is noted that the respondent was a party to those proceedings and that the orders of the Court are, in part, directed at the respondent. However, that is an irrelevant consideration in these proceedings. The issue for determination in these proceedings is whether the caravan was described as being manufactured by WINNEBAGO when in fact it was manufactured by AVIDA.
2. The applicant's evidence consists of Mr O'Neill's recollection of the conversation he had with the salesman, Mr Rachford, in which the salesman said that "Winnebago is a family company started in Australia just after World War 2, originally building caravans."
3. That version of the conversation is not disputed by the respondent. It was simply the respondent's argument that there could have been no reliance by the applicant on that representation in his decision to purchase the caravan. However, that is not the point. The guarantee relied on that arises under s 56 does not require that the purchaser rely on the description, only that the supply does not correspond with the description.
4. Further, the applicant's photographic evidence clearly shows a plate attached to the caravan with the words "Unit manufactured by WINNEBAGO Industries" with a serial number.
5. I am satisfied that the attachment of the plate to the caravan coupled with the conversation with Mr Rachford satisfies the requirement that the caravan was described to the consumer as having been manufactured by WINNEBAGO.
6. There is no dispute that the caravan was in fact manufactured by AVIDA.
7. Accordingly I am satisfied that the respondent is in breach of the guarantee provided by s 56 in that the description of the caravan as being manufactured by WINNEBAGO did not correspond with the caravan actually supplied.

Was there a breach of s 56 in regard to the description of Tare Mass and ATM?

1. On this issue the applicant cannot succeed although there is clearly an inaccuracy in the ATM as stamped on the Trailer Plate attached to the caravan which requires rectification if that is not already done.
2. The problem with the applicant's case on this issue lies with Mr Young's evidence. Mr Young himself was a forthright witness, well qualified to give his opinion and appeared to understand his obligations to the Tribunal. The problem lay with the instructions given to Mr Young. Mr Young states that "the findings in this report are solely based on the information supplied by the owner's representative and that contained in the documents in the appendix".
3. Unfortunately the person giving that information to Mr Young was not identified and the information supplied was not provided in the report. The Tribunal has no way of knowing whether the findings of the report are based on supposition or fact.
4. Further, one of the documents included in Mr Young's appendix is said to be a certificate from a weighbridge. That document is illegible. It was said by Mr Young to have been provided to him by Mr O'Neill, but he also claimed never to have met Mr O'Neill.
5. Mr Young said that his instructions were to peruse the documents and to give his opinion.
6. I am not satisfied from looking at the document said to be a certificate from a weighbridge that Mr Young could be comfortable agreeing that it was such a certificate or that it depicted the subject caravan or that the details on the certificate could be read and understood. Any conclusions reached on those issues must therefore have been coloured by the information supplied by the applicant's representative.
7. I therefore reject Mr Young's evidence on that issue as being of no assistance to the Tribunal. It follows that the applicant cannot maintain his claim of breach of s 56 on this issue.

Remedy for breach of s 56

1. Having determined that the respondent is in breach of the guarantee provided by s 56 in that the caravan supplied to the applicant did not correspond with the description in regard to both the caravan being new and in regard to the caravan being manufactured by WINNEBAGO, the question is what remedy if any, is the applicant entitled to?
2. The ACL relevantly provides

259 Action against suppliers of goods 1. A consumer may take action under this section if: 1. a person (the supplier ) supplies, in trade or commerce, goods to the consumer; and 2. a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3-2 (other than sections 58 and 59(1)) is not complied with. 1. If the failure to comply with the guarantee can be remedied and is not a major failure: 1. the consumer may require the supplier to remedy the failure within a reasonable time; or 2. if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time--the consumer may: 1. otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or 2. subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. 1. If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: 1. subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or 2. by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. 1. 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. 2. Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. 3. To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). 4. The consumer may take action under this section whether or not the goods are in their original packaging. 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: 1. the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or 2. the goods depart in one or more significant respects: 1. if they were supplied by description--from that description; or 2. if they were supplied by reference to a sample or demonstration model--from that sample or demonstration model; or 1. 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 2. the goods are unfit for a disclosed purpose that was made known to: 1. the supplier of the goods; or 2. a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; 3. and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or 1. the goods are not of acceptable quality because they are unsafe.

262 When consumers are not entitled to reject goods 1. A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: 1. the rejection period for the goods has ended; or 2. the goods have been lost, destroyed or disposed of by the consumer; or 3. 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 4. the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. 1. 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: 1. the type of goods; and 2. the use to which a consumer is likely to put them; and 3. the length of time for which it is reasonable for them to be used; and 4. the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

263 Consequences of rejecting goods 1. This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. 2. The consumer must return the goods to the supplier unless: 1. the goods have already been returned to, or retrieved by, the supplier; or 2. the goods cannot be returned, removed or transported without significant cost to the consumer because of: 1. the nature of the failure to comply with the guarantee to which the rejection relates; or 2. the size or height, or method of attachment, of the goods. 1. If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense. 2. The supplier must, in accordance with an election made by the consumer: 1. refund: 1. any money paid by the consumer for the goods; and 2. an amount that is equal to the value of any other consideration provided by the consumer for the goods; or 1. replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. 1. The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. 2. If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.

1. The ACL s 259 provides a remedy for the consumer where the guarantee provided under s 56 is not complied with. The applicant seeks a refund of the purchase price of $68,490. That remedy is only available to the applicant if the failure to comply with the guarantee comes within the meaning of a "major failure" as that term is used in s 260.
2. The applicant's submission was that the failure to provide a new caravan in circumstances where the one actually supplied was manufactured in the year prior to supply, had been used as a display caravan for the purpose of promoting sales and had been the subject of warranty repairs prior to sale must constitute a "major failure".
3. The applicant's submission in regard to the misdescription of the caravan as having been manufactured by WINNEBAGO went to the issue of whether or not the applicant was misled by that description. For the reasons already stated the Tribunal will not examine any remedy relating the damages arising from misleading and deceptive conduct.
4. In regard to the issue of whether the breach of s 56 relating to manufacture amounted to a "major failure" the applicant asserted that it was.
5. The respondent simply asserted that there was no evidence of a "major failure".
6. One needs to refer to s 260 to determine whether either of the two failures to comply with the guarantees amount to a major failure. Therefore the first question is whether a reasonable consumer, fully acquainted with the facts would have purchased the caravan?
7. The supply of a caravan that is not new and has been used in a manner unknown to the consumer and has had some warranty repairs done to it prior to the consumer taking delivery, when coupled with the fact that a large sum of money ($68,490) was being paid for the caravan would, I am satisfied, be regarded by any reasonable consumer as a very serious breach of the contract entered into.
8. I am satisfied that any reasonable consumer who had been aware of the above facts would not have acquired the caravan for the price paid. Such a failure would clearly be a basis for any reasonable consumer to re-negotiate the purchase price or to simply decline to go ahead with the purchase.
9. On the other hand, although a consumer may have believed the caravan was to be a WINNEBAGO brand but was in fact an AVIDA brand, I am not satisfied that would be regarded by a reasonable consumer as conclusive of the fact that the supplied van was in any way inferior to the one described. I am not persuaded that a reasonable consumer would necessarily have failed to go ahead with the purchase if that fact had been known.
10. Section 260(b) is expressed in the alternative to s 260(a). Clearly in both the failure to supply a new caravan as described and the failure to supply one manufactured by WINNEBAGO both would amount to a departure from the description in a significant respect.
11. I am satisfied therefore that the breach of s 56 in regard to the description of the caravan as a new motor vehicle and the description of the caravan as being manufactured by WINNEBAGO are both "major failures" as that term is used in s 260.
12. To establish entitlement to the remedy claimed the applicant must, pursuant to s 259(3), also show that he rejected the goods and the grounds for such rejection.
13. The applicant's position was that the applicant twice rejected the goods by correspondence with the respondent and sought a refund of the purchase price.
14. The respondent submitted that the applicant was no longer entitled to rely on the rejection communicated to the respondent on 9 September 2014 because, subsequent to that rejection the parties had reached an agreement, remedial work was done and the applicant continued to retain possession of the caravan and to use it. That is, following the agreement made between the parties on 2 March 2015 the applicant's conduct was inconsistent with his rejection of the caravan in the previous September. I accept that submission.
15. In any event the respondent conceded that the notice given on 13 April 2017 gave the respondent notice that the applicant rejected the caravan and his reasons for doing so.
16. However, the respondent argued that despite the rejection notice being sent to the respondent on 13 April 2017 and even if the Tribunal made a finding of "major failure" the applicant could not recover because, pursuant to s 262 the rejection period had ended by the time that notice was given.
17. The "rejection period" is defined under s 262 as 1. (2) 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: 1. the type of goods; and 2. the use to which a consumer is likely to put them; and 3. the length of time for which it is reasonable for them to be used; and 4. the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
18. The applicant had taken the caravan for long trips in June 2015 and in May and June 2016. It would be reasonable, it was submitted, to expect any major failure to become apparent by about May or June 2016. That is, the rejection period expired about two years after the date of supply of the caravan.
19. In this case the relevant failure was the failure of the respondent to supply a new caravan and the failure of the respondent to supply a caravan manufactured by WINNEBAGO. Both of those failures were known to the applicant soon after he returned from his first trip in the caravan in late 2014.
20. On becoming aware of the failures he was entitled to reject the goods, which he did on 9 September 2014. However he compromised that rejection by agreeing to have work done on the caravan and to keep and to use the van. He knew that both of those failures could not be remedied by any work that was being done on the van yet he abandoned his entitlement to reject and to seek a refund based on either of those failures.
21. I am satisfied that the rejection period, in respect of the two major failures to comply with the guarantees provided by s 56, ended in or about September 2014. The applicant is therefore precluded by the operation of s 262(1) from seeking his remedy under s 259 for breach of s 56.

The claim under the ACL s 54-55

1. I now turn to the applicant's claim for a refund of the purchase price arising from an alleged breach by the respondent of the guarantees provided by the ACL s 54 and 55. The ACL relevantly provides in respect of those guarantees

54 Guarantee as to acceptable quality 1. If: 1. a person supplies, in trade or commerce, goods to a consumer; and 2. the supply does not occur by way of sale by auction; 3. there is a guarantee that the goods are of acceptable quality. 1. Goods are of acceptable quality if they are as: 1. fit for all the purposes for which goods of that kind are commonly supplied; and 2. acceptable in appearance and finish; and 3. free from defects; and 4. safe; and 5. 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). 1. The matters for the purposes of subsection (2) are: 1. the nature of the goods; and 2. the price of the goods (if relevant); and 3. any statements made about the goods on any packaging or label on the goods; and 4. any representation made about the goods by the supplier or manufacturer of the goods; and 5. any other relevant circumstances relating to the supply of the goods. 1. If: 1. goods supplied to a consumer are not of acceptable quality; and 2. the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; 3. the goods are taken to be of acceptable quality. 1. If: 1. goods are displayed for sale or hire; and 2. the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. 1. Goods do not fail to be of acceptable quality if: 1. 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 2. they are damaged by abnormal use. 1. Goods do not fail to be of acceptable quality if: 1. the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and 2. the examination ought reasonably to have revealed that the goods were not of acceptable quality.

55 Guarantee as to fitness for any disclosed purpose etc. 1. If: 1. a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and 2. 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. 1. 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: 1. the consumer makes known, expressly or by implication, to: 1. the supplier; or 2. a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or 1. 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). 1. 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.

1. The applicant's claim under these provisions are based on 1. Water ingress, 2. Faulty brakes, 3. Non-compliant wiring and gas installation, 4. Multiple general defects over an extended period

Water ingress

1. The respondent's submission was that, consistent with the decision of the Tribunal in Kadiroglu and with remarks made by myself at page 72 of the transcript of the hearing, in order to succeed on his claim for defects the applicant must demonstrate the existence of those defects with expert evidence.
2. It is certainly the case that where the parties are in disagreement as to the existence of some matter or thing that may constitute a defect in the goods provided by one to the other, expert evidence will very often be determinative of the issue. However, I do not accept the proposition that invariably such an issue can only be decided by expert evidence and I reject the proposition that my remarks made at the hearing support such a contention.
3. A defect may be so patently obvious that any lay witness can establish its existence or indeed a Court or Tribunal may be satisfied of the existence of a defect simply by viewing a photograph and being satisfied as to the bona fides of that photograph.
4. In this case we can discount the applicant's expert evidence in relation to the existence of water ingress entirely for the reasons given above but must then ask what evidence remains?
5. Mr O'Neill's evidence on this point is

• He noticed water "pooling on the en-suite floor under the toilet mounting" about one month after purchase. About two months after purchase Mr O'Neill noticed the en-suite floor was covered with water after a few days of rain. He inspected the roof of the caravan and noticed water ponding where dams of excess silicone sealant had created pools around roof fittings. It was immediately after this time that the applicant first sought a refund of the purchase price noting water damage from roof leakage.
• Following an application made to the Tribunal in October 2014, the respondent accepted that there was water ingress and, as part of a settlement agreement made in December 2014 agreed to rectify it,
• After repairs were carried out by AVIDA following that agreement the applicant again complained of water ingress and Mr Pearce of AVIDA was unable to determine whether it was coming from the roof or from a leaking toilet,
• On 6 May 2015 the applicant again notified the respondent that water was still leaking into the caravan,
• Despite further repairs by the respondent the respondent acknowledged by email to Mr O'Neill on 7 December 2015 that some water leaks had been attended to and others were still being tested (it is noted that the correspondence from the AVIDA at that time advised that the roof seals had been inspected and the leaking did not originate with the sealant,
• Following a further trip to Queensland and an extended illness by the applicant, Mr O'Neill again contacted the respondent on 13 April 2017 and complained of water ingress and sought a refund on the vehicle,
• In September 2017 as part of an offer of settlement the respondent agreed to rectify water leaks from RH rear ceiling,
• In addition the applicant provided a number of photographs depicting water ingress to the caravan, one taken as recently as 22 June 2018.

1. The respondent's evidence relies on the statement of Mr Muriti that any water ingress was due to leaking from the seals which was the owner's responsibility to have attended to at regular servicing.
2. Mr Muriti was disingenuous in his responses to some questions put to him. I have discounted Mr Ross' evidence completely, but when Mr Muriti was asked to comment on Mr Ross' allegations of water damage under the fridge and kitchen cabinets, Mr Muriti said he was unable to determine the source without removal of the vinyl, but then stated that the cause was lack of maintenance and service by the owner.
3. Mr Muriti refused to resile from that position even when it was established he had no knowledge of when the caravan had been purchased and when the owner had had it serviced. Mr Muriti did not carry out any water testing to the caravan during his inspection in June 2018 to determine whether or not there were leaks at that time or to identify the source of any leaks found. He simply stated that based on his experience the seals appeared not to have been replaced and assumed that was the cause of any water ingress.
4. In those circumstances I prefer the evidence of Mr O'Neill who has been complaining of water ingress to the caravan from about the middle of 2014. I am satisfied, that evidence establishes that there was water ingress to the caravan from very soon after the date of supply, the respondent was given multiple opportunities to investigate and correct the source of ingress but has not done so. The water ingress remains a continuing problem.
5. On the balance of probabilities I am therefore satisfied that there are one or more sources of water ingress to the caravan that have been present from soon after purchase and that the applicant has not caused that water ingress by failure to have proper services done on the caravan. It follows therefore that the water ingress is a defect going to the issue of whether or not the caravan is of "acceptable quality".
6. Mr Chatterjee, for the applicant, helpfully provided a reference to Vautin in which the Full Court of the Federal Court of Australia set out the principles to be applied in considering what amounts to "acceptable quality" under s 54.
7. The test, as pointed out in the applicant's submissions, is an objective one to be determined from the perspective of a reasonable consumer and by reference to those matters set out at s 54(3).
8. Would a reasonable consumer regard the applicant's caravan as being of "acceptable quality"?
9. A caravan is inherently normally used for taking vacations and because of its mobility it is reasonable to expect that over a period of time the vacation may take place in different locations. It is not unreasonable also to expect that in some places the weather may be hot, in others cold, or windy or raining.
10. A reasonable consumer would, I am satisfied, expect that the new caravan they had just purchased for $68,490, afford reasonable comfort in all of those conditions and that it would continue to do so for some years to come. That is not to deny that a reasonable consumer would also expect to carry out any necessary servicing or maintenance that may assist in achieving that level of comfort.

Faulty braking system

1. I do not propose to deal with the claims under s 54 or 55 based on the alleged faulty braking system, alleged non-complaint electrical wiring and gas installation or the claim that the multiplicity of defects over an extended period itself amounts to a "major failure" because having reached the above decision it is unnecessary to do so.
2. Furthermore the applicant's success or otherwise on those issues is much more likely to depend on the quality of his expert evidence, which I have already found to be wanting.
3. I am obliged to deal expeditiously with applications before the Tribunal and to be mindful of proportionality in the time taken and the cost of proceedings. In short, the applicant is already successful and has achieved everything he sought in his final submissions. He is unlikely to be successful on the remaining issues and to determine those issues would involve the Tribunal in further lengthy consideration without any potential benefit to the applicant.

Conclusion

1. For the above reasons I am satisfied the respondent is to pay the applicant the sum of $68,490.
2. Pursuant to his obligations under the ACL s 263(2) the applicant is to return the caravan to the respondent.
3. Orders are made accordingly.

Costs

1. The parties have expressed a desire to be heard on the issue of costs.
2. It is noted that the applicant has been entirely successful in his application and that the amount claimed or in dispute is more than the $30,000 provided for under the Civil and Administrative Tribunal Rules, rule 38.
3. Hence, it would appear that the applicant would be entitled to an award of costs but because he was not legally represented until the hearing his costs would necessarily be limited to those two days and the preparation of submissions.
4. If the parties disagree with my preliminary view on the issue or if there are circumstances of which I am unaware I have made directions to deal with the issue.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2019