Parkinson v Hutchin

EVIDENCE

1. The applicant filed documentary evidence in support of his claim. These documents were entered into evidence and marked as "exhibit 1". The applicant relied on an expert report prepared by Mr Ian Fergusson dated 19 September 2022 (the "Fergusson report").
2. The first respondent relied upon a bundle documentary evidence which was entered into evidence and marked as "exhibit 2". The first respondent did not appear to be reliant upon any independent expert evidence.
3. The second respondent relied upon an expert report of Michael Lasijczuk of Brisbane Caravan repairs dated 15 October 2022. (the "Lasijczuk report").
4. Both the applicant and the respondents attended the hearing on 1 November 2022. Mr Parkinson gave affirmed evidence on behalf of the applicant. Mr Hutchin gave affirmed evidence on behalf of the first respondent. Mr McKendry gave affirmed evidence on behalf of the second respondent.
5. The parties were given the opportunity to cross examine each other.
6. All parties were invited to provide written submissions to the Tribunal after the conclusion of the hearing. All parties provided written submissions to the Tribunal.
7. The Tribunal has read and considered all of the documentary evidence and submissions of the parties.

JURISDICTION

1. The Tribunal has jurisdiction to hear and determine this matter under Part 6A of the Fair Trading Act 1987 (NSW)("FT Act") FT Act (sections 79I and 79J) as an order is sought that requires the respondent to pay a specified sum of money subsection 79E(1)(a).
2. The applicant is a consumer pursuant to section 79D. The first respondent is a supplier of goods on the basis that it supplied the goods (being the caravan) the subject of the dispute in the course of carrying on a business: sections 79D and 79G. The second respondent is not the direct supplier of the caravan but it is an indirect supplier of the motor vehicle and is potentially liable to the applicant by virtue of subsection 79E(2).
3. The caravan was supplied in NSW: section 79K(1)(a). The application has been made to the Tribunal within the three-year time limit required by section 79L. The claim falls within the monetary limit on the Tribunal's jurisdiction: subsection 79S.

THE LAW

1. The Australian Consumer Law NSW ("ACL") is part of the law of NSW, and may be used in deciding a consumer claim under Part 6A of the FT Act by virtue of section 28 of the FT Act. It contains, in Chapter 3, a number of guarantees by suppliers of goods and services that are implied into consumer transactions. These include in relation to the supply of goods, a guarantee as to acceptable quality and fitness for purpose.
2. The Tribunal's jurisdiction under the ACL is not entirely equivalent to its jurisdiction under Part 6A of the FT Act. However, there is no real difference in the jurisdiction for the purposes of these proceedings.
3. The applicant appears to allege that there has been a "major failure" in relation to the consumer guarantees under the ACL as per section 260. It appears that the applicant is relying on section 54 in relation to the guarantee as to "acceptable quality".
4. In section 54 of the ACL it states that if a person supplies goods in trade and commerce (and not by auction) there is a guarantee as to acceptable quality: sub-section 54(1). Goods are of acceptable quality if they are fit for all the purposes for which goods of that kind are commonly supplied, they are acceptable in appearance and finish, and are free from defects, safe and durable: subsection 54(2)(a) to (e).
5. The test in relation to "acceptable quality" is an objective test. It is what a "reasonable consumer" fully acquainted with the state and condition of the goods (including any hidden defects of the goods) would see as acceptable having regard to the nature of the goods, the price paid for them, any statements made about the goods in advertising materials, any representations made about the goods by the supplier or manufacturer of the goods, and any other relevant circumstances relating to the supply of the goods: subsection 54(3).
6. Subsections 54(4) to (7) of the ACL set out the exceptions where a supplier will not be liable for the supply of goods that are not of acceptable quality. None of these exceptions are relevant in the current matter.
7. As noted in the matter of Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 at 44: "The temporal focus of section 54 is the time the goods are supplied, informed by what is known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally, Medtel Pty Ltd v Courtney [2003] FCAFC 51 per Moore J at [40], Branson J at [70], and Jacobson J agreeing with Branson J at [81]. In this respect, it falls to the applicant to prove on the balance of probabilities that the motor vehicle was not of acceptable quality at the time of supply having regard to what it was reasonable to expect in terms of its future function at that time".
8. Section 55 of the ACL sets out the guarantees as to fitness for purpose and relevantly provides as follows: Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
9. In section 259 of the ACL the remedies that are available to a consumer where a supplier of goods has failed to comply with the guarantee as to acceptable quality and fitness for purpose are set out.
10. If the failure to comply is a "major failure", the consumer may, subject to section 262 of the ACL, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection: subsection 259(3)(a). The consumer may also, 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 failure: subsection 54(4).
11. Section 260 of the ACL sets out the circumstances where a failure to comply with the guarantee as to acceptable quality will be a "major failure" Relevantly, there will be a major failure if the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure (subsection 260(a)) or 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 (subsection 260(d)) or the goods are not of acceptable quality because they are unsafe (subsection 260(e)).
12. In Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 ("Safi") the Appeal Panel of NCAT set out a helpful summary of the approach and principles to be applied in the construction of section 260: 85 Section 260 of the ACL (NSW) sets out five measures against which non-compliance is to be assessed for the purposes of determining whether there is a "major failure". As observed by the Magistrates' Court of Victoria in Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [50], for there to be a major failure it was not necessary for the claimant to establish each of the matters set out in s 260, establishing one is sufficient. This is clear from the drafting of the section. 86 The first measure, under s 260(a), is whether "the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure". 87 Subsection 260(a) applies to a generic "reasonable consumer" who acquires goods. It has the broadest and most general application. In contrast, s 260(d), where goods are unfit for a disclosed purpose, only applies when there have been specific negotiations about purpose between a consumer and a supplier. Similarly, s 260(b) only applies where goods have been acquired by description, sample or as a demonstration model. 88 Subsections 260(c) and 260(e), namely where goods are "substantially unfit" or where they are "unsafe", direct specific attention to the nature and extent of the failure. Whereas s 260(a) directs attention to the mind of the reasonable consumer, although the nature and extent of the failure is relevant in a contextual sense. There is an overlap between ss 260(a), 260(c), and 260(e). For instance, if it is established that goods are unfit for the purpose for which goods of the same kind are commonly supplied and that they cannot be remedied easily or in a reasonable time, it follows that a reasonable consumer, fully acquainted with this fact, would not have acquired the goods. The same can be said of goods that are found to be unsafe. However, the reverse is not true. Subsections (c) and (e) require proof of specific factual matters in relation to the nature of the failure in the goods, subsection (a) does not. 89 Subsections (a), (c) and (e) of s 260 are closely linked to the consumer guarantee of "acceptable quality" under s 54. Relevantly, s 54 requires that, among other things, goods be "fit for all purposes which goods of that kind are commonly used" and "safe" which is to be adjudged by the "reasonable consumer fully acquainted with the state and condition of the goods". As such, the inquiry as to whether goods comply with the guarantee of acceptable quality and any findings about this matter will be relevant to the inquiry about whether such failure is a major failure for the purposes of s 260.
13. The Appeal Panel in the same matter at [101] and [102] set out the following principles to be used in determining whether there is a major failure to comply with the guarantee as to acceptable quality: 101 1. A major failure may be constituted by one defect or a series of specific or individual defects which, when taken as a whole, constitute a major failure; 2. The test of whether goods "would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure" is an objective one. 3. A "reasonable consumer" would expect teething problems, even in a new vehicle. 4. The question to ask is whether the reasonable consumer, given the option of acquiring particular good or alternatively purchasing either nothing or a different model, would not have acquired the good. 5. Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and 6. The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily and in a timely manner are relevant considerations. 102 In our view, the purchase price for the goods and the nature of the defect are also relevant considerations for a "reasonable consumer".
14. Section 261 of the ACL sets out how suppliers may remedy a failure to comply with a consumer guarantee. If, under section 259(2)(a), a consumer requires a supplier of goods to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement, by repairing the goods, or by replacing the goods with goods of an identical type, or by refunding any money paid by the consumer for the goods and an amount that is equal to the value of any other consideration provided by the consumer for the goods.
15. However, section 262 of the ACL limits the circumstances in which a consumer is entitled to reject goods. A consumer is not entitled to notify a supplier of goods that the consumer rejects goods if, relevantly, the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply: section 262(1)(c).
16. Additionally, the applicant also alleged that the conduct of the respondent(s) was misleading and deceptive with regard to their advertising of the camper. The relevant section of the ACL is section 18 which says: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

THE FACTS

1. The Tribunal makes the following findings of fact: 1. The first respondent is a supplier of caravans and campers. The second respondent is the manufacturer of caravans and campers. 2. The applicant purchased a new CX3 star vision hybrid caravan camper NSW registration number TK74DV ("the camper") from the first respondent on or about 12 February 2022. 3. The applicant paid the first respondent a deposit of $2000 on 12 February 2022. The outstanding balance of $56,000 was paid by the applicant to the first respondent on 17 February 2022. 4. The applicant picked up the caravan from the first respondent on or about 6 March 2022. At this time the applicant paid the first respondent a further $900 for a Kooltron fridge / freezer and gas bottle. 5. In the five months after the applicant had purchased the camper he experienced a series of small and more major defects. 6. On or about 8 March 2022 the applicant contacted the first respondent regarding difficulties in getting the hot water system to work and questions about the performance and setting on the fridge/freezer the solar panels and the battery storage capacity. 7. On or about 20 March 2022 the applicant returned to the first respondent's showroom where storage hatch rivets were replaced, the shower toilet compartments sealed with silicon against water ingress and a roof latch which was broken by the applicant was fixed. 8. On or about 26 March 2022 the applicant contacted the first respondent in relation to a leak. Further, a corner bracket from a window had fallen off, a torn rubber seal in the fridge/ freezer slide, the fridge/ freezer fan was working intermittently. 9. On or about for April 2022 the applicant had the fridge/ freezer compartment rewired fitted an Addison plug, fitted missing rivets to the bed slide roof, re sealed the bedside roof with silicon adjusted rubber side seals, re glued the slide carpet and replaced the faulty Kooltron fridge/ freezer with an equivalent. These works were done by the second respondent at their Brisbane premises. 10. Further issues were identified with the camper which included removing and reattaching the awning at the correct height, sealing the resulting holes in the roof, attaching bolts in the awning arms to ensure these were align properly when closed for travelling an inserting screws to prevent the awning from slipping out of alignment. 11. On or about 30 April 2022 the applicant contacted the first respondent in relation to the ingress of dust inside the camper. 12. The applicant then contacted the respondents to advise that there was no cover over one of the air conditioning vents located under the camper, no rubber seal fitted on the Hatch covering the other air conditioning vent, and that it appeared dust was also coming in through the camper door. 13. The applicant continued to have ongoing issues with the hot water system. the applicant also continued to have issues with dust ingress into the inside of the camper. These issues have worsened to the point where the applicant is no longer able to safely use the camper due to difficulties breathing from the dust ingress. 14. The applicant has rejected the camper and returned it to the second respondent on or about 20 September 2022. 15. The applicant has been unable to resolve the issues in this matter with the respondents. 16. The applicant lodged this application before the Tribunal on 18 July 2022.

CONSIDERATION

1. In order to determine this matter, and having regard to the application, the facts and the law, the Tribunal must answer the following: 1. Did the first respondent fail to comply with the guarantee as to acceptable quality in the supply of the vehicle to the applicant? 2. If so, was this a major failure? 3. If so, was the applicant entitled to reject the vehicle? 4. Have the first and or second respondent engaged in misleading and deceptive conduct? 5. What remedy is the applicant entitled to? 6. What orders are necessary to do justice between the parties? 7. What action does the applicant have against the second respondent?

GUARANTEE AS TO ACCEPTABLE QUALITY

1. The first consideration is whether there has been a breach of the guarantee as to acceptable quality in the supply of goods as per s 54 of the ACL. The applicant contends that the respondent(s) have breached their obligations in this regard due to the multiple issues with the camper over a relatively should period of time. The applicant notes that there were at least 5 different sets of defects when the camper had travelled approximately 15,000 kilometres and was approximately 7 months old.
2. As noted in the matter of Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316 at 7: The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70]. However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
3. In the matter of In Burton v Chad One Pty Ltd [2013] NSWDC 301 at [38] to [42] a summary of the approach and the principles to be applied in the construction of section 54 were set out as follows: 38 The decision of the Auckland Motor Vehicle Disputes Tribunal in Witton v Taupo Motor Company Limited 29 November 2010 contains a helpful analysis of the equivalent New Zealand provision of s.54: "The guarantee of acceptable quality contained in s.54 is in three parts. A set of quality elements contained in s.54(2)(a) to (e), a reasonable consumer test which applies a consumer's objective evaluation of those quality elements, and a set of factors in s.54(3)(a) to (e) which are to be taken into account by the reasonable [consumer]." 39 The New Zealand High Court in Contact Energy Ltd v Jones [2009] 2 NZLR 830 at [86] and following, said: "The quality standard is set by reference to the expectations of a reasonable consumer "fully acquainted with the state and condition of the goods, including any hidden defects." The phrase derives from s 16(b) of the Sale of Goods Act 1908, which established an exception to the warranty of merchantable quality of goods bought by description from sellers dealing in goods of that description. The warranty does not apply where the buyer had examined the goods, as regards defects which such examination ought to have revealed." 40 The court referred to Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 and continued at [88]: "...s 7(1)(a) of the Consumer Guarantees Act [the equivalent of s.54 of the ACL] requires that quality be assessed by reference not only to defects and price but also fitness for purpose. Fitness for purpose is assessed by reference to all purposes for which the goods are commonly supplied, so it does not suffice if the goods are suitable for any one or more of their common purposes (compare Hardwick Game Farm v Suffolk Agricultural Producers Association [1969] 2 AC 31). But it is not an absolute requirement, in that the Act does not positively require that the goods be fit for all common purposes." 41 At [94] the court said: "The hypothetical reasonable consumer is taken to be fully acquainted with the "state and condition" of the goods, including any hidden defects. Less obviously, he or she must also be taken to know the nature of the goods, all relevant circumstances of supply and any representations made about the goods by the manufacturer or supplier, so far as relevant. That is so because it is the hypothetical consumer who determines by reference to those considerations whether the goods are acceptable. The test is objective, but it is applied to the particular goods and circumstances. Acceptable quality is a composite and context-specific attribute. I adopt the observations of Ormrod LJ, speaking of merchantable quality, in Cehave NV v Bremer Handelsgesellschaft mbH at page 80: 'It is a composite quality comprising elements of description, purpose, condition and price. The relative significance of each of these elements will vary from case to case according to the nature of the goods in question and the characteristics of the market which exists for them. This may explain why the formulations of the test of merchantable quality vary so much from case to case.'" 42 Applying that to the present situation, it is apparent that such authority as there is on the NZ equivalent provision of s.54(3) makes it clear that all of the matters in that sub-section are to be considered when determining whether or not the goods were of acceptable quality. The use of the conjunctive "and" within the section supports this interpretation.
4. Equally applicable to the present matter is the following passage from Member French's decision in Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39 at 44: "The temporal focus of section 54 is the time the goods are supplied, informed by what is known of their subsequent condition and by what it was reasonable to expect from the type of goods in issue: see generally, Medtel Pty Ltd v Courtney [2003] FCAFC 51 per Moore J at [40], Branson J at [70], and Jacobson J agreeing with Branson J at [81]. In this respect, it falls to the applicant to prove on the balance of probabilities that the motor vehicle was not of acceptable quality at the time of supply having regard to what it was reasonable to expect in terms of its future function at that time. To the extent that the applicant contends that this was because the motor vehicle was not free from defects (subsection 54(2)(c)) she must establish that there was an actual or latent defect in the motor vehicle at the time of supply which rendered it of unacceptable quality: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [14] to [23]. However, it is not necessary for the applicant to prove the precise nature of the defect: Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [73]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [23]; Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52 at [9]".
5. In the present matter the Tribunal is satisfied of a breach of sections 54(2)(a), 54(2)(c) and 54(2)(e) of the ACL. The evidence of the applicant was that he had purchased the camper new for $58,000. The issues experienced by the applicant with the camper started two days after the date of supply of the camper, initially problems with the hot water system and fridge / freezer. Further issues with the camper included issues with water ingress, dust ingress, problems with the awning, and seals. Any reasonable consumer would expect some teething problems with a new camper however, they would not expect the number and extent of the problems that have been experienced by the applicant in relation to the camper. It does not appear that the camper is free from defects, nor durable based on the evidence.
6. In relation to the breach of s 54(2)(a) of the ACL the Fergusson report concludes that "It is my expert opinion that the Star Vision CX3 Pro caravan is therefore not suitable for travelling on outback roads or taking off-road as advertised by Star Vision".
7. With respect to the breaches of s 54(2)(c) and 54(2)(e) of the ACL the Fergusson report also concludes "Having concluded an inspection of the Star Vision CX3 Pro caravan for the reason outlined above there are deficiencies in the design, robustness, and quality of the build. The CX3 is not sealed against dust or water ingress".
8. The Tribunal prefers the expert evidence of the applicant. The report provided by the second respondent is two lines in total. Further, the author of that report does not set out his qualifications. In contrast, the applicant's expert report is 8 pages in length and the author sets out his qualifications and experience.
9. Having made a finding that the vehicle has failed to comply with the guarantee as to acceptable quality at the time of supply the Tribunal then needs to consider whether the failure to comply was a "major failure".

MAJOR FAILURE?

1. Having regard to the evidence before it the Tribunal is satisfied that the failure to comply with the guarantee as to acceptable quality is a major failure.
2. Having regard to the principles in Safi it appears that there have been a number of defects in the camper starting two days after it was delivered. The camper has been returned for numerous repairs in the space of approximately 7 months. Any reasonable consumer if given the option of buying this camper, or alternatively purchasing either nothing or a different model, would not have acquired the camper. This is due to the nature and extent of the issues experienced by the applicant. Any reasonable consumer would also not expect the number of issues noted by the applicant when paying $58,000 for a new camper. As noted above in Safi one defect or a series of specific or individual defects which, when taken as a whole may constitute a major failure.
3. As noted in the matter of Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [73]: "The question which the Tribunal had to consider and answer was whether, at the time of the sale, the vehicle was of acceptable quality as that phrase is defined in s 54 (2) of the ACL NSW. In other words it was not necessary for the Appellant to prove that at the time of the sale, there was a particular identified defect which caused the vehicle not to be of an acceptable standard".
4. In the present matter it appears that there are now problems with significant dust ingress into the camper however the applicant does not need to prove the precise nature of the defect in order for the camper to be considered to be of an unacceptable standard.
5. Additionally, the respondents have been given a number of opportunities to make good the defects with the camper over the space of the past 7 months with the vehicle having had numerous repairs over that time. Despite this, issues have remained unresolved and now further problems are being experienced with the camper. It therefore appears that the problems cannot be easily and quickly remedied.

REJECTION OF THE CAMPER

1. The applicant rejected the camper and returned it to the second respondent on 20 September 2022.
2. In the matter of Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 the appeal panel set out at 83 the test for determining whether the rejection period has ended: "From these cases it can be seen the following matters are relevant considerations in determining the rejection period for a major failure and when it has ended: 1. The rejection period commences at the time of supply; 2. The rejection period ends when it would be reasonable for the defect to become reasonably apparent; 3. The period of time must be reasonable having regard to the defect or defects. The test is objective but the actual experience of the consumer is relevant; 4. In determining the time in which a failure to comply becomes reasonably apparent regard must be had to the factors in s 262(2)(a)-(d) of the ACL; 5. Matters affecting the length of the period and when a major failure may become reasonably apparent include: a) Whether the good are old or new. In the case of new goods it will usually be longer period; b) Whether the goods are regularly inspected, whether an inspection process is customary and, if so, whether such inspections would be expected to reveal the failure; c) Whether a reasonable consumer fully acquainted with the state and condition of the goods, would know the cause of the defect, what needed to be done to fix it and the cost of doing so; d) Whether the supplier or repairer had identified a fault and carried out a repair which the consumer understood would rectify the fault; e) Whether any subsequent testing or period of use was necessary and/or elapsed following any repair to see if it was successful; f) Whether a failure, or a series of failures in combination with each other, might render the goods unfit or otherwise lead a reasonable consumer to conclude they would not have acquired the goods; g) Whether a reasonable time has elapsed following the consumer becoming fully acquainted with the failure to make a decision about whether to reject the goods".
3. Applying the above principles in the current matter, the rejection prior had not ended because the applicant had rejected the camper just over seven months after taking delivery of it. At that point in time the camper had travelled approximately 15,000 kilometres. The applicant was entitled to expert several years of trouble-free operation of the camper, given that it was purchased new for a price of over $58,000.00 and had been subjected to fairly limited use.

APPROPRIATE REMEDY

1. The first and second respondents submitted that the appropriate remedy should be that they repair the camper. This submission is misconceived. As noted in Avci at [78] "The terms of section 259(3)(a) and 263 of the ACL are very clear. If there has been a major failure to comply with the guarantee of acceptable quality, the consumer may, at the consumer's election, reject the goods. If a consumer elects to reject the goods, they must be returned to the supplier (subject to exceptions which do not apply in this case), the supplier must accept the return of the goods, and (in the circumstances of this case) the supplier must refund to the consumer the purchase price they paid for the goods. The right of a supplier to repair goods, as an alternative to accepting their return and refunding the purchase price only arises under sections 259(2) and 261 of the ACL where the failure to comply with the guarantee as to acceptable quality is not a major failure".
2. In the present matter the applicant has established on the evidence that the first and second respondent have failed to comply with the guarantee as to acceptable quality when the camper was supplied. Further, that this failure was a major failure. He has also established on the evidence that he notified the first and second respondent that he rejected the camper, and that he did this within the rejection period. Further, the applicant has retuned the camper to the second respondent.
3. The Tribunal considers that by virtue of s 263 of the ACL therefore that the applicant is entitled to return the camper to the first respondent (via the second respondent) and the first respondent must accept its return. The first respondent must also refund to the applicant the purchase price that was paid for the camper of $58,000.
4. The Tribunal needs to consider what orders should be made against the second respondent who is the manufacturer of the camper.
5. As noted in the matter of Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 at [133 (3)-(4)]: "The remedies set out in Division 1 of Part 5-4 of the ACL apply to suppliers of goods but not manufacturers. …… Division 2 of Part 5-4 of the ACL sets out the remedial regime available against manufacturers where there has been a breach of the consumer guarantees relating to goods".
6. In the present matter the Tribunal the applicant has failed to provide any evidence of a claim pursuant to sections 271 and 272 of the ACL for "damages".
7. However, the Tribunal finds that the second respondent is also liable for a breach of s 54 of the ACL and although the second respondent did not directly supply the vehicle to the applicant, they are liable to indemnify the first applicant by virtue of s 274 of the ACL.
8. It appears that the first respondent's contravention of s 54 was because of manufacturing defects, (such as that which was identified in the Fergusson report as "deficiencies in the design, robustness, and quality of the build.") for which the second respondent is ultimately liable, rather than conduct for which the first respondent was directly responsible.
9. It appears that both the first and second respondent have acted together in refusing to provide the applicant with the remedy that was sought. Both had refused to replace or to refund the camper. The Tribunal is therefore satisfied that it is appropriate for order that the second respondent is to pay to the first respondent the camper's purchase price so as to indemnify it against the amount it must pay the applicant.
10. The applicant also sought damages for loss including caravan park fees, cleaning cost of alternate accommodation, fuel cost, costs of preparing the application expert reports submission and other costs yet to be determined.
11. The applicant did not quantify the damages sought. He did not set out in detail a list of these costs specifying each item he claimed and the amount of each item. Further, the applicant did not provide any substantiating evidence to support his claim for damages (such as invoices, receipts, bank statements or other proof of payment). Therefore, this portion of the claim is dismissed.
12. With respect to the claim for the costs of preparing the application and expert report these are costs of and incidental to the proceedings.
13. In relation to the claim for costs the starting point in any application for costs is that parties to proceedings in the Tribunal are to pay their own costs: see s 60(1) of the Civil and Administrative Tribunal Act 2013 ("NCAT Act"). Subsection 60(2) provides costs are awarded only if the Tribunal is satisfied that there are: "special circumstances warranting an award of costs".
14. Subsection 60(3) of the NCAT Act provides: In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant.
15. Rule 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") relates to costs in this Division of the Tribunal, the Consumer and Commercial Division. Rule 38(2) says that despite s 60 of the NCAT Act the Tribunal may award costs in the absence of special circumstances warranting such an award if the amount claimed is more than $10,000.00 but not more than $30,000.00 and the Tribunal has made an order under cl 10(2) of Schedule 4 of the NCAT Act in relation to the proceedings, or the amount claimed or in dispute in the proceedings is more than $30,000.00.
16. In the current matter the Tribunal is not satisfied that there are any special circumstances which would warrant an award of costs. Further, the amount claimed in this matter is more than $30,000 and the Tribunal has not made an order under cl 10 of Schedule 4 of the NCAT Act. Therefore the applicant's claim with respect to his cost of and incidental to these proceedings including his costs of the expert report and costs of preparation of the matter is dismissed.

MISLEADING AND DECEPTIVE CONDUCT

1. Additionally, the applicant also alleged that the conduct of the second respondent was misleading and deceptive with regard to the material written about the camper on the second respondent's website and in their advertising material. The relevant section of the ACL is section 18 which says: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
2. The legal principles in relation to Section 18 of the ACL are set out by Brereton J in the matter of Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697 at paragraphs [75]-[76]. Relevantly, that case said that the test is an objective one (i.e. what a reasonable consumer in the position of the applicant would have, in all the circumstances of the matter, been misled or deceived, not whether the applicant subjectively believed that the conduct of the respondent was misleading or deceptive). There does not have to be any intention on the part of the respondent to mislead or deceive. Confusion or misunderstanding by a consumer does not mean, of itself, that the conduct in question is misleading or deceptive, and a consumer failing to make reasonable inquiries is relevant in assessing whether conduct is misleading or deceptive in contravention of Section 18 of the ACL (see Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; Miller & Associates Insurance Broking v BMW Australia Finance (2010) 241 CLR 357).
3. The Tribunal is not satisfied in the present matter that there has been a breach by the second respondent of s 18 of the ACL based on the evidence when applying the above test. Therefore, this portion of the claim is dismissed.

CONCLUSION

1. For the reasons outlined above the Tribunal makes the following orders: 1. Adrian James Hutchin t/as Jimbo's 4X4 Campers must immediately accept Andrew Parkinson's return of CX3 star vision hybrid caravan camper NSW registration number TK74DV via Star Vision Pty Ltd. 2. Adrian James Hutchin t/as Jimbo's 4X4 Campers must pay Andrew Parkinson the sum of $58,000 on or before 27 February 2023. 3. Star Vision Pty Ltd must pay Adrian James Hutchin t/as Jimbo's 4X4 Campers the sum of $58,000 on or before 27 February 2023. 4. Upon Adrian James Hutchin t/as Jimbo's 4X4 Campers' performance of Orders 1 and 2 above Andrew Parkinson must do all things necessary to transfer unencumbered title CX3 star vision hybrid caravan camper NSW registration number TK74DV to Adrian James Hutchin t/as Jimbo's 4X4 Campers within 7 days. 5. The First Respondent's name is amended to Adrian James Hutchin Trading as Jimbo's 4X4 Campers.

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: 28 June 2023