O'Neill v Country Motor Company Pty Ltd

NCAT Appeal Panel|2018-03-07|Before: Senior Member J

Introduction

This appeal concerns an Avida Sapphire caravan (caravan) which Mr Collin O'Neill (Mr O'Neill) purchased from Country Motor Company Pty Ltd (CMC) on 28 April 2014 for a purchase price of $68,490.
On 22 November 2018 the Tribunal ordered CMC to pay the sum of $68,490 to Mr O'Neill and ordered Mr O'Neill, within seven days of receipt of that payment, to return the caravan to CMC. Both CMC and Mr O'Neill have brought appeals from those orders.

The issues on appeal

The Amended Notice of Appeal by CMC in AP 18/52118 refers to eight grounds on which it says that the Tribunal erred in law. However the submissions for CMC stated that the appeal focussed on three main issues: 1. Whether there was any evidence for the Tribunal to find that CMC had breached section 54 of the Australian Consumer Law ( ACL) in relation to water ingress; 2. Whether the Tribunal correctly determined the rejection period in relation to water ingress in accordance with section 262(2) of the ACL; and 3. Whether the failure of Mr O'Neill to return the caravan after he rejected it, and/or his continued possession and ownership of the caravan after his rejection precluded him from seeking a refund under section 262 of the ACL.
The Amended Notice of Appeal by Mr O'Neill in AP 18/53523 relies on four grounds. Grounds 2 - 4 contend that there are alternative bases on which the decision of the Tribunal should be upheld if the appeal by CMC is successful. Ground 1 of Mr O'Neill's Amended Notice of Appeal asserts that the Tribunal erred in law in failing to make findings in respect of Mr O'Neill's case for damages for consequential losses and his claim for misleading and deceptive conduct by CMC contrary to section 18 of the ACL. Counsel for Mr O'Neill identified the consequential losses claimed as totalling $12,715.36, being items 10-26 in a list at Appeal Book page 129.

The decision of the Tribunal

The parties had filed an agreed statement of facts in the Tribunal which included that: 1. the parties entered into a contract on 28 April 2014 for the supply by CMC to Mr O'Neill of the caravan which was supplied by CMC in 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. Mr O'Neill and CMC were respectively a "consumer" and a "supplier" within the meaning of Part 6A FTA; 5. the application was a "consumer claim" within the meaning of Part 6A and was brought within time; 6. the purchase price of the caravan was $68,490 which was paid in full by Mr O'Neill; 7. prior to its supply under the contract, the caravan had been used as a display unit by CMC; 8. Mr O'Neill was the first registered owner of the caravan; 9. Mr O'Neill had previously commenced proceedings in the Tribunal on 8 October 2014 against CMC in respect of the caravan. Those proceedings were withdrawn on 2 March 2015. As a condition of the withdrawal, CMC agreed to repair certain items on the caravan; 10. the caravan suffered from defects and repairs have been conducted by on behalf of CMC on multiple occasions since its purchase by Mr O'Neill.
Mr O'Neill rejected the caravan and sought a refund by notice dated 9 September 2014. This led to the first proceedings in the Tribunal which were withdrawn on 2 March 2015. Mr O'Neill gave a second notice rejecting the caravan and seeking a refund on 13 April 2017. It was that second notice which led to these proceedings in the Tribunal.
The Tribunal noted in its decision at [58] that the primary relief sought by Mr O'Neill was for a full refund of the purchase price of the caravan and associated losses on the basis that CMC was in breach of the supply guarantees provided by the ACL sections 54 - 55 and on the premise that the breaches constituted a major failure within the meaning of section 260 of the ACL. At [59] the Tribunal noted Mr O'Neill's submission that ongoing defects which were a major failure were: 1. continuing water ingress to the caravan 2. a faulty braking system; and 3. non-- compliant wiring and gas installation.
The Tribunal noted in its decision at [61] that the second aspect of Mr O'Neill's claim was that CMC was in breach of the guarantee provided under section 56 to the ACL in regard to supply of goods by description and/or CMC had engaged in misleading and deceptive conduct contrary to section 18 the ACL 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 had no relationship with that company; and 3. there was a misrepresentation in regard to the tare mass and load carrying capacity.
The Tribunal dealt first with the claim under s 56 ACL in regard to the sale of goods by description and/or the claim under s18 ACL for misleading and deceptive conduct. The Tribunal noted at [214] that whilst Mr O'Neill had grouped these claims together, the remedies for breach of section 56 were different from the remedies for breach of section 18. The remedies in relation to breach of the consumer guarantees are found in Part 5-4 of the ACL commencing at s 259. The remedy for misleading and deceptive conduct is damages under s 236 of the ACL.
The Tribunal noted at [216] that Mr O'Neill made no submissions in regard to the damages arising from the alleged breach of section 18 but sought to have another hearing on that issue if the Tribunal did not make a finding of major failure in regard to the alleged breaches of the supply guarantees. At [218] the Tribunal stated that the hearing had continued for two days and held that no further hearing on the issue of damages would be conducted. In these circumstances the Tribunal concluded that it could not make any orders for damages arising from any breach of section 18.
The Tribunal then considered at [219] - [261] Mr O'Neill's claim based on the same factual allegations brought under section 56 ACL. The Tribunal concluded that: 1. the contract called for supply of a new caravan but the caravan was not new (at [223]); 2. CMC was therefore in breach of section 56 in that the goods described in the contract did not correspond with the goods supplied (at [224]); 3. the caravan was described as having been manufactured by Winnebago when it was in fact manufactured by Avida (at [229]-[230]); 4. CMC was therefore in breach of section 56 in this respect (at [231]); 5. there was no breach of s 56 in relation to the tare weight and load carrying capacity (at [238]; 6. the two established breaches of s 56 were both major failures within the meaning of s 260 ACL (at [251]); 7. both of these failures were known to Mr O'Neill in 2014. He was entitled to reject the goods on these grounds, which he did by notice on 9 September 2014. However Mr O'Neill compromised that rejection by subsequently agreeing to have repair work done and to keep and use the van. Mr O'Neill knew that neither of these failures could be remedied by the repair work (at [259]-[260]); and 8. the rejection period under s 262 ACL in respect of these major failures ended in about September 2014 and therefore Mr O'Neill was precluded by s 262 ( 1) of the ACL from relying on the second rejection notice in April 2017 in respect of these failures (at [261]).
The Tribunal then dealt with Mr O'Neill's claims for alleged breaches of the supply guarantees under sections 54 and 55 of the ACL. The first of these claims related to water ingress. Then Tribunal held that: 1. the expert evidence led by Mr O'Neill on this issue should be discounted entirely (at [267]); 2. however, based on Mr O'Neill's own evidence, the Tribunal was satisfied that there had been water ingress to the caravan from very soon after the date of supply; CMC had been given multiple opportunities to investigate and correct the source of ingress but had not done so; and water ingress remained a continuing problem (at [272]); 3. the caravan was not of acceptable quality by reason of water ingress and accordingly CMC was in breach of the guarantee provided by section 54 of the ACL (at [280] -[281]); 4. the breach of s 54 in relation to water ingress constituted a major failure within the meaning of s 260 of the ACL (at [283]); 5. in relation to water ingress, whilst the failure was apparent soon after the date of supply, the failure was "a continuing one". CMC had multiple opportunities to rectify the problem but did not do so (at [286}); 6. the rejection period under s 262(2) of the ACL had not ended at the time of Mr 'O'Neill's rejection notice in April 2017 (at [287]); 7. Mr O'Neill had not acted inconsistently with his rejection notice by failing to return the goods before a refund was provided by CMC(at [288]-[293]); and 8. Mr O'Neill was accordingly entitled to a refund of the purchase price of $68,490 and was required to return the caravan to CMC.
As Mr O'Neill had succeeded on his claim in relation to water ingress, tribunal did not deal with his further claims based on a faulty braking system and non-compliant wiring and gas installation (at [299] - [301]).

First issue: Evidence of breach of section 54 in relation to water ingress

CMC submitted that the Tribunal had made an error of law in finding that it had breached section 54 of the ACL in relation to water ingress. Having rejected the expert evidence led by Mr O'Neill, CMC submitted the oral evidence of Mr O'Neill which the Tribunal did accept did not explain how water entered into the caravan or who was responsible for it.
CMC submitted that this was an error of law because there was no evidence for the Tribunal to find a breach of section 54. Counsel for CMC accepted that unless there was no evidence to support the finding , then there had been no error of law and leave would be required under section 80 (2) of the Civil and Administrative Tribunal Act 2013 to raise the issue on appeal. Counsel for CMC did not seek leave on this basis.
CMC submitted that without any evidence explaining how the water into the caravan and who was responsible for the water entering the caravan, it was not possible, rational or logical for the Tribunal to conclude that the water ingress was a breach of the guarantee in section 54 the ACL.
CMC submitted the error of law made by the Tribunal was emphasised by the fact that, in summarising Mr O'Neill's evidence at [268], the Tribunal had incorrectly stated that in September 2017 as part of an offer of settlement CMC agreed to rectify water leaks from the right-hand rear ceiling of the caravan.
Mr O'Neill submitted that the Tribunal's factual findings at [272] gave rise to a readily available inference that the water ingress was, on the balance of probabilities, by reason of a defect in the caravan.
In relation to the statement made by the Tribunal at [268] concerning an offer of settlement in September 2017, Mr O'Neill did not dispute that the statement was incorrect. However Mr O'Neill submitted this was not a finding of fact by the Tribunal but a summary of Mr O'Neill's evidence. Alternatively if it was a finding of fact, it was not a critical step in the ultimate conclusion and was at most only tangentially relevant to the ongoing nature of the water ingress problem which was found to exist.

Consideration

In our opinion there was no error of law made by the Tribunal on this issue. There was evidence to support the finding by the Tribunal that CMC had breached section 54 of the ACL in relation to water ingress. CMC did not dispute the findings of fact made by the Tribunal at [272], namely that there was water ingress to the caravan from very soon after the date of supply; that CMC had been given multiple opportunities to investigate and correct source of ingress are not done so; and at the water ingress remained a continuing problem.
We accept Mr O'Neill's submission that those findings of fact readily support the inference that the water ingress was due to a defect in the caravan.
Having regard to the Tribunal's acceptance of Mr O'Neill's evidence at [272] we consider that the Tribunal did find as a fact at [268] that in September 2017 as part of an offer of settlement CMC agreed to rectify water leaks from the right-hand rear ceiling of the caravan. However we accept Mr O'Neill's submission that this finding of fact was not a critical step in the ultimate conclusion that water ingress was due to a defect in the caravan. First, the events of September 2017 post-dated the relevant notice rejecting the caravan in April 2017. Secondly, there was a body of other evidence referred to by the Tribunal at [268] which supported the conclusion that water ingress was a continuing problem. Thirdly, in any event, CMC did not challenge the finding of fact made at [272] that water ingress was a continuing problem.
We reject the grounds of appeal challenging the findings by the Tribunal that water ingress was due to a defect in the caravan and gave rise to a breach of the guarantee as to acceptable quality provided by section 54 ACL.

Second issue: the rejection period

The relevant rejection notice was dated 13 April 2017. CMC submitted that the Tribunal made an error of law in deciding that this notice was given during the period in which Mr O'Neill was entitled to reject the caravan on the basis of a defect due to water ingress.
The relevant provisions of the ACL are sections 259 and 262. Section 259(3) (a) relevantly provides that if the failure to comply with a supply guarantee is a major failure, then the consumer may, subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds of the rejection.
Section 262(1) (a) provides that a consumer is not entitled, under section 259, to notify a supplier that the consumer rejects the goods if the rejection period for the goods has ended.
Section 262(2) provides as follows: "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 the guarantee referred to in section 259 (1) (b) to become apparent having regard to: the type of goods; and the use to which a consumer is likely to put them; and the length of time for which it is reasonable for them to be used; and the amount of use to which it is reasonable for them to be put before such a failure becomes apparent".
CMC pointed to an apparent tension between the reasons given by the Tribunal at [285] and the reasons given at [286] - [287]. CMC submitted that the Tribunal's finding at [285] that the major failure complained of would have become apparent well before April 2017 was an application of the correct test and meant that the Tribunal should have concluded that the rejection period had ended prior to that time. CMC submitted that the Tribunal's findings at [286] that the failure was "a continuing one" and at [287] that it would be reasonable to expect many years of use from the caravan were inconsistent with the finding at [285] and were not matters which were relevant to determination of the rejection period.
CMC also submitted that Mr O'Neill had acted inconsistently with the rejection notice and by his conduct had avoided that notice by in various ways asserting ownership of the caravan after 13 April 2017. CMC submitted that this meant that Mr O'Neill could not rely on the April 2017 rejection notice. CMC submitted that the Tribunal had not dealt with its arguments on this point.
Mr O'Neill submitted that the Tribunal's reference at [286]'s to the failure being "apparent soon after the date of supply" should be read as referring to the defect (being water ingress) rather than the breach of section 54 . Mr O'Neill referred to the decision of the Federal Court in Vautin v BY Winddown, Inc. (No. 4) (2018) 362 ALR 702; [2018] FCA 426.
In Vautin, the applicant, Mr Vautin, had purchased a recreational fishing vessel in October 2011 and took possession of it in March 2012. In November 2014, Mr Vautin received a report that there was delamination of part of the hull of the vessel. In December 2014, the manufacturer and supplier were notified of the damage. In March 2016 Mr Vautin purported to reject the vessel on the basis of failure to comply with the supply warranties in sections 54(1) and 55(1) of the ACL. The supplier asserted that Mr Vautin was not entitled to reject the vessel under section 262 of the ACL because he took possession of it in March 2012 and he ought reasonably to become aware of the relevant defects around the time of the report in November 2014.
Derrington J stated ( at [256]): "It must be kept steadily in mind that the "relevant failure" referred to in the definition of "rejection period" is not solely the existence or manifestation of the defect in the goods. The failure is the failure of the goods to comply with the statutory guarantee. Whilst in many cases the existence of an apparent defect will have the consequence that it can be easily discerned that a guarantee has not been complied with, that will not always be the case.… It may take some time before a consumer might be able to ascertain that the cause of a problem with the goods is the failure of a supplier to comply with the statutory guarantee".
Derrington J added at [263]: "It must also be remembered that, in relation to the non - compliance with the requirements of s 54, the issue of non - compliance concerns the state of the goods at the time of supply. It does not concern the state of the goods at some later time when the defect manifests itself. Therefore, where a latent defect results in the manifestation of a deficiency in the goods at some subsequent date, one element in it becoming apparent that the guarantee in s 54 was not complied with is knowledge that the defect, which was latent in the goods at the time of the supply, was causative of the manifested deficiency."
And at [269]: "It might have been argued that the rejection period ends under s262 once it is reasonable to expect that the relevant failure can be seen to be a "major failure" within s260. On such a construction, at that time the consumer will be aware that the defect is serious and they would be entitled to return the goods. However such a construction tends to confine the rights of consumers… Even where a consumer has become aware of the existence of a major failure and the right of rejection, they still entitled to ascertain the nature and extent of the defect and how much will cost to repair, before being put to an election. "
Derrington J concluded at [274] that the extent of the repairs required to make the vessel of acceptable quality and the cost of remediation were not apparent before the trial commenced and thus that the rejection period had not even ended at the time of trial.
The decision in Vautin provides a framework and guidance to review the decision of the Tribunal on this issue. The relevant failure in this case for the purpose of s 262(2) was not the failure of the caravan to prevent the ingress of water, but the failure of the caravan to comply with the statutory guarantee of acceptable quality because it did not prevent the ingress of water. It is relevant to bear in mind that the ACL is consumer protection legislation designed to enhance, rather than confine the rights of consumers. Mr O'Neill was entitled to ascertain the nature and extent of the defect, whether the defect could be repaired and, if so, at what cost, before electing to reject the caravan.
In our opinion these principles assist to explain the reasoning of the Tribunal on this issue and resolve any apparent tension in those reasons. Mr O'Neill's initial rejection of the caravan in 2014 was compromised by an agreement reached with CMC for CMC to repair the caravan. It would have been reasonable for Mr O'Neill to expect CMC to locate, repair the source of ingress and to prevent any further ingress during the course of those repairs. CMC was unable to repair or correct the problem. Thereafter water ingress remained a continuing problem as the Tribunal found at [272]. It was this continuation of the problem after the attempted repairs which led to Mr O'Neill rejecting the caravan by notice dated 13 April 2017. We understand the Tribunal's reference at [286] to the failure being "a continuing one" to be a shorthand reference to the context which we have described.
In these circumstances we consider that the Tribunal was correct to conclude that the rejection period had not ended by 13 April 2017.
We do not accept the submission by CMC the Tribunal did not consider its argument that Mr O'Neill had acted inconsistently with the rejection notice and by his conduct had avoided that notice in various ways after 13 April 2017. The Tribunal referred to that submission at [288] and thereafter proceeded to deal with it at [289] - [293]. Indeed this issue is the third main issue raised by CMC in this appeal and we will deal with it on that basis.
We reject the grounds of appeal by CMC relating to the Tribunal's determination of the rejection period.

Third issue: return of the caravan

CMC submitted that section 263 of the ACL requires the consumer to return the goods before electing to claim a refund. CMC relied on the decision of the Appeal Panel in Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [83] in support of this submission. CMC submitted that the Tribunal had made an error of law at [292] in holding that in circumstances where CMC disputed Mr O'Neill's claim for a refund it was reasonable for Mr O'Neill to not immediately return the caravan but to hold himself in readiness to do so when a refund was forthcoming.
On this issue CMC also submitted that Mr O'Neill had acted inconsistently with the rejection notice by his subsequent conduct and had thereby avoided the notice. That conduct included Mr O'Neill registering the caravan, refusing access to CMC and leaving his goods in it. CMC pointed to s 263(6), which relevantly provides that property in the goods revests in the supplier on notification of the rejection.
Mr O'Neill submitted that there was no textual or other basis to support the submission that section 263 of the ACL required the consumer to return the goods as a precondition to the obligation of the supplier to refund the purchase price. Mr O'Neill submitted that there was no reason for reading one obligation as contingent on the other or requiring them to be performed sequentially. Mr O'Neill submitted that Lam did not support CMC's submission.
Mr O'Neill also submitted that for CMC to succeed on this point it had to demonstrate that a failure on the part of the consumer to comply with his or her obligations to return the goods resulted in a retrospective invalidation of the rejection notice. Otherwise, the only relief that CMC was entitled to was an order requiring return of the caravan prior to payment of the refund.
On the issue of Mr O'Neill's subsequent conduct, Mr O'Neill submitted that Mr O'Neill had not acted inconsistently with the rejection of the caravan.
Section 263 of the ACL provides as follows: 263 Consequences of rejecting goods (1) This section applies if, under section 259, a consumer notifies a supplier of goods that the consumer rejects the goods. (2) The consumer must return the goods to the supplier unless: (a) the goods have already been returned to, or retrieved by, the supplier; or (b) the goods cannot be returned, removed or transported without significant cost to the consumer because of: (i) the nature of the failure to comply with the guarantee to which the rejection relates; or (ii) the size or height, or method of attachment, of the goods. (3) If subsection (2)(b) applies, the supplier must, within a reasonable time, collect the goods at the supplier's expense. (4) The supplier must, in accordance with an election made by the consumer: (a) refund: (i) any money paid by the consumer for the goods; and (ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or (b) replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier. (5) The supplier cannot satisfy subsection (4)(a) by permitting the consumer to acquire goods from the supplier. (6) If the property in the rejected goods had passed to the consumer before the rejection was notified, the property in those goods revests in the supplier on the notification of the rejection.
Sub-section (1) makes it clear that section 263 is engaged once a consumer has notified a supplier that the consumer rejects the goods. However we accept the submission of Mr O'Neill that there is nothing in the text of section 263 which requires the consumer to return the goods under sub-section (2) before the consumer can make an election to claim a refund under sub-section (4), or which makes sub-section (2) operate as a precondition to sub-section (4).
As Mr O'Neill pointed out in his submissions, on CMC's construction, a supplier could refuse to accept the return of the goods (as CMC did in this case by refusing Mr O'Neill's claim for a refund) and then rely on the failure of the consumer to return the goods as invalidating the rejection notice. We accept Mr O'Neill's submission that such a construction would be at odds with the purpose of the ACL to protect the rights of consumers.
In Lam at [83], the Appeal Panel stated: "It can be noted that s 263 has some similarities to s 40N of the FT Act (in its pre-- 2011 form). Under s 263, if rejection of goods is permitted by s 259, the consumer must generally return the goods to the supplier and then the consumer has an election as to whether the supplier is required to provide a refund or replacement. Somewhat strangely unlike s 40N, s 263 does not expressly establish the mechanism or means by which a consumer can enforce the supplier's obligation to refund the money paid for the goods and an amount equal to any other consideration provided or to replace the rejected goods, arising under S263 (4)."
Despite the general observations made by the Appeal Panel in Lam, it is significant that there was no issue in that case as to whether the return of the goods was a precondition to the consumer's right to make an election between obtaining a refund or replacement of the goods. We do not understand the decision in Lam to be asserting such a precondition. This is emphasised by the orders in fact made by the Appeal Panel in Lam at [220]. Order (3) required the supplier to refund the purchase price of the motor vehicle to the consumer within 14 days. Order (4) provided that if the consumer had possession of the motor vehicle at the date of the orders, he was to return the vehicle to the supplier within seven days of the payment to him of the sum referred to in Order (3). These orders are not consistent with the Appeal Panel in Lam interpreting s 263 to require that the goods must be returned to the supplier before the consumer could elect to seek a refund, or indeed before the refund was payable to the consumer.
In assessing whether Mr O'Neill acted inconsistently with the rejection notice we consider that the Tribunal was correct to take into account CMC's refusal to accept Mr O'Neill's claim for a refund and the fact that CMC disputed that claim. In these circumstances, we consider that the Tribunal was correct to conclude that there was no unequivocal conduct by Mr O'Neill inconsistent with the rejection notice.
We reject CMC's grounds of appeal relating to the return of the caravan.
Accordingly, we are of the opinion that CMC's appeal should be dismissed.

The appeal by Mr O'Neill

As grounds 2-4 of Mr O'Neill's Amended Notice of Appeal only arise for consideration if the appeal by CMC was successful, it is not necessary for us to consider those grounds.
In relation to ground 1, the first issue is Mr O'Neill's claim for consequential losses totalling $12,715.36 being the items 10-26 in a list at Appeal Book page 129. Mr O'Neill submitted that the invoices proving payment of these items were at pages 130-144 of the Appeal Book.
Mr O'Neill submitted that the Tribunal at [58] identified that Mr O'Neill had made a claim for associated losses as well as a full refund of the purchase price of the caravan. Mr O'Neill submitted that his submissions to the Tribunal and his final amended points of claim identified the basis for the claim for associated losses and the evidence upon which he relied. Mr O'Neill submitted that no award of damages was made in respect of the claim for associated losses and no reasons were provided in respect of that claim. In the circumstances Mr O'Neill submitted that the inference which should be drawn is that the Tribunal failed to consider this claim.
Mr O'Neill asked for the Appeal Panel to determine this matter rather than it being remitted to the Tribunal. Mr O'Neill submitted that the Appeal Panel is in as good a position as the Tribunal to determine the matter.
CMC submitted that there was no evidence establishing that the expenses were caused by the water ingress found to be a major failure. In relation to tax invoices relating to repair work, there was no evidence of the reason for the repairs; no evidence of the cause for the need to undertake the repairs; no evidence of the claims the repair work related to; nor evidence of payment of all the tax invoices for the repairs.
The basis for the claim for consequential losses for breach of a supply guarantee is section 259 (4) the ACL. That sub-section permits a consumer to 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.
We accept Mr O'Neill's submission that it appears that the Tribunal overlooked the claim for consequential losses. As requested by Mr O'Neill, we have considered that claim ourselves.
We have reviewed the claims and the invoices said to support the claims at pages 130 - 144 of the Appeal Book. As submitted by CMC, many of the claims are not supported by invoices and in some cases there is no evidence of payment of those invoices. However, and more fundamentally, we do not consider that there is any satisfactory evidence establishing that any of the items claimed were suffered because of CMC's failure to comply with the guarantee of acceptable quality under section 54 ACL in relation to water ingress (or indeed in relation to the other major failures alleged by Mr O'Neill).
Accordingly, we reject Mr O'Neill's claim for consequential losses.
The remaining issue in relation to ground 1 of Mr O'Neill's Amended Notice of Appeal is his claim for damages for misleading and deceptive conduct by CMC contrary to section 18 of the ACL.
The claim for misleading and deceptive conduct was based on alleged representations of the caravan was newly built when it was in fact a display model; that the caravan was manufactured by Winnebago USA or an affiliated entity and it was in fact manufactured by Avida; and that the caravan had a load carrying capacity greater than was in fact the case.
Mr O'Neill submitted that the Tribunal had found at [218] that CMC's failure to supply a new caravan "could well amount to a breach of the ACL s.18. However, it is not clear what, if any, damages flow from that breach." Mr O'Neill submitted that a difficulty in assessment of damages should not have precluded the Tribunal from making an order for damages or, at the least, nominal damages could have been awarded.
CMC submitted that Mr O'Neill did not make any submissions on damages for breach of s.18 at the hearing before the Tribunal and it was for this reason that no damages were awarded.
In reply, Mr O'Neill conceded that there was limited scope for a further award of damages for misleading and deceptive conduct where a full refund is ordered.
In our opinion, the Tribunal made it clear at [216] and [218] that it would not make an award of damages for the alleged breach of s.18 because Mr O'Neal had made no submissions in regard to those damages. In these circumstances, and having regard to the concession made by Mr O'Neill in his submissions in reply, we see no error in the approach taken by the Tribunal in relation to damages for misleading or deceptive conduct.
We reject ground 1 of Mr O'Neill's Amended Notice of Appeal. In these circumstances we will make orders dismissing the appeals by both CMC and Mr O'Neill.
It remains to consider the costs of the appeals. CMC's appeal has been wholly unsuccessful. The issues raised by CMC took up most of the hearing time before the Tribunal and the time taken to prepare these reasons. Ground 1 of Mr O'Neill's appeal has been unsuccessful. It has not been necessary to consider the remaining three grounds Mr O'Neill's appeal.
In these circumstances we consider that CMC should pay Mr O'Neill's costs of the CMC appeal and Mr O'Neill should pay 25% of CMC's costs of Mr O'Neill's appeal as agreed or assessed.

Orders

The orders which we make are as follows:
The Amended Notice of Appeal in AP 18/52118 is dismissed.
Order that CMC pay Mr O'Neill's costs of AP18/52118, as agreed or assessed.
The Amended Notice of Appeal in AP 18/53523 is dismissed.
Order that Mr O'Neill pay 25% of CMC's costs of AP18/53523, as agreed or assessed. 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: 21 May 2019

At a glance

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Judgment (9 paragraphs)

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Cases Cited (3)

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