This appeal concerns the sale of a caravan which was purchased by the appellants from the first respondent.
By application filed 5 July 2018, the appellants sought an order for the payment of $80,000 being a refund of the purchase price and compensation arising from a claim that the first respondent, or its director the second respondent, had misrepresented the tare weight and/or tow ball weight of the caravan. At various times the amount of compensation sought appears to have been for a higher amount than that stated in the original application.
In simple terms, the tare weight is the weight of the empty caravan and the tow ball weight is the weight placed by the caravan on the tow ball of the towing vehicle when connected to that vehicle.
The claim was heard by the Tribunal on 9 November 2018 and 27 February 2019. On 20 June 2019 the Tribunal dismissed the application (Decision) and provided reasons for its decision (Reasons).
The various claims originally made by the appellants are set out in the Reasons at [16]-[17]. The Tribunal identified and dealt with the alternative misrepresentation and breach claims in the Reasons as follows:
1. False representation as to tare weight (2100 kg) and tow ball weight (130 to 150 kg) (Reasons at [80] and following): and
2. False representation that van could be legally towed by the applicant's Isuzu when fully loaded (Reasons at [88] and following).
3. False representation that van can be towed by a family car (Reasons at [95] and following).
4. False information about tare weight and tow ball weight in compliance plate (Reasons at [96]).
5. Not fit for purpose because unable to be towed by towing vehicle (Reasons at [110] and following).
6. Not fit for purpose because of inadequate payload (Reasons at [112] and following).
7. Not of acceptable quality because issues have required rectifying (Reasons at [115]).
All these claims were rejected as was a claim against the second respondent, Mr Middleton, who is a director of the first respondent. In doing so, the Tribunal recorded that it rejected a late application by the appellants on the second day of the hearing "to extend the claim by including a claim to the effect that the van was not of acceptable quality because of the axle rating and bearings": Reasons at [6] and following.
The appellants filed a Notice of Appeal on 23 July 2019. The appeal was filed out of time, the last day to appeal being 18 July 2019. The appellants sought leave to appeal out of time.
The grounds of appeal identified in the Notice of Appeal were as follows:
1. The decision was not fair and equitable. The Tribunal wrongly refused to accept the appellants' expert engineers report concerning "non-compliant axles rating", stated that it is easily repaired, when it is not and should have applied and enforced compliance with the NSW RMS regulations, in regard to the positioning of the numberplate. In addition the Tribunal failed to enforce the Australian Consumer Law (NSW) (ACL). Finally, weight should have been given to the statutory declaration of the second appellant, Mrs Smith.
2. The decision was against the weight of evidence. Inter alia, the appellants referred to various weighings of the caravan which had occurred and said that the tare weight and tow ball weights of 200 kg and 2100 kg respectively were false and misleading.
3. Significant new evidence has arisen. The appellants referred to the first appellant's membership of the Caravan Industry Association of Australia although it was not a member. The appellant also referred to the Tribunal's failure to give weight to their expert evidence.
4. The "information stamped on to the caravan's compliance plate" was false and misleading and the respondents have been unable "to achieve those weights" despite several re-weighings.
5. Despite being informed on 12 April 2019 that the caravan's suspension had failed, the first appellant refused to repair the caravan or provide any details of the shock absorbers (closed length, fully extended length) safety straps.
6. The Tribunal "disregarded all verbal evidence from Middleton from the 2nd hearing, as regards the conducting of the weighings".
The appellant also referred to attachments which are said to identify "a lot more items listed, which point out the many, inconsistent, and wrong statements, decisions, from the Tribunal".
In relation to the orders sought in the Notice of Appeal, there are general statements as to what the Tribunal should have done concerning the ACL and evidence received, including a statement that the respondents' evidence from Mr Ron May should be totally disregarded. Mr May was an expert witness for the respondents, described by the Tribunal in its reasons at [66] as:
a licensed certifier under the Vehicle Safety Compliance Certification Scheme with mechanical and auto engineering experience and qualifications, and is experienced in assessing compliance with relevant Australian Design Rules, and assisting people to load their caravans to appropriately balance weight in the van.
The respondents each filed a Reply to Appeal. In short, they opposed leave to appeal, said new evidence should not be permitted in the appeal and that the appeal should be dismissed.
Directions were made by the Appeal Panel for the parties to file and serve evidence from the original proceedings together with written submissions in support of the parties' respective positions.
In addition, the parties provided oral submissions at the hearing of the appeal on 23 September 2019. At this time, Mr Smith (the first appellant) provided submissions on behalf of the appellants. Mr Hugh Mckensey, director, provided submissions on behalf of the first respondent and Mr Middleton, the second respondent, represented himself.
We should note that during the course of these oral submissions, the appellants said there was not enough time to present their appeal, they wish to issue a summons and/or there was new material upon which they wished to rely. An application for adjournment was refused by the Appeal Panel and oral reasons were given.
Lastly, at the conclusion of the hearing of the appeal, the appellants were permitted to provide short written submissions in reply to the oral submissions of the respondents. These were filed on about 8 October 2019.
The appellants' documents consisted of a copy of their bundle of documents provided to the Tribunal in the proceedings at first instance (AB 1) and a second bundle of documents prepared for the purpose of the appeal, the first page of which is headed "Index" (AB 2).
[2]
Submissions
The appellants' written submissions are interspersed in the bundle of documents provided. We do not propose to recount all the submissions having regard to the manner in which they have been presented.
However, they can be summarised as follows:
1. The appellants wish to rely on new evidence, namely misrepresentation concerning the first respondent's membership of the Caravan Industry Association of Australia Ltd and the failure to carry out repairs and respond to emails sent in July 2019, after the Decision was published. Of these documents, the appellants say that they "highlight, the totally disgusting, totally unethical, totally unprofessional, manner in which [the respondents] conduct the business".
2. The appellants had sought to issue a summons to the workshop supervisor of the respondent, having raised that issue on 9 November 2018, being the first hearing day of the proceedings at first instance.
3. The Tribunal should have preferred the evidence of the appellants, including that of their expert Mr Young, concerning the manner in which tare and tow ball weights are measured and calculated and should have accepted that the respondents had engaged in conduct in contravention of the ACL. This evidence included how tare mass and tow ball loadings should be measured, the effect of placement of the heavy items within the caravan, whether the caravan weights should be measured without any consumables (such as water and gas) and the Australian Design Rules requirements, including in respect of a safety factor for a "non-load-sharing suspension system": see Young Supplementary report AB 2 Tab B. The effect of this evidence was that the weights recorded on the compliance plate were misleading.
4. The axle ratings for the caravan did not meet the required weight safety requirements. In this regard, and despite the appellant admitting the respondents are prepared to replace the wheel bearings, the appellants contended they were lied to by the respondents. Further, the respondents have wrongly refused to provide full engineering details of the caravan's chassis, suspension and brakes. This information, the appellants contend, needs to "be taken into account to properly calculate the correct rating of the caravan weight limitations".
5. Mr Middleton had lied concerning evidence about tow ball weights and whether they could be provided by the Maitland City Council weighbridge site manager.
6. A second, unsigned weighbridge certificate noted as a "duplicate" said to have recorded a weight of the caravan at 10 am on 27 June indicated the tare weight of the caravan was 160 kg more than the weighbridge certificate relied upon by the respondents recording a tare weight of 2280 kg being the amount recorded on the compliance plate affixed to the caravan.
In oral submissions, the appellants referred to various weighbridge certificates provided as evidence. The appellants submitted that none of these certificates establish that the weights recorded on the compliance plate were correct. The appellants appear to assert that the respondents had an obligation to show the weights recorded on the weighbridge certificates provided by the appellants were wrong.
The appellants also submitted the respondents should be able to replicate the re-weighing of the caravan in order to prove the tare weight and the tow ball weight recorded on the compliance plate.
In this regard, we note the appellants explained they had installed various items including approximately 20 kg of timber under the bed in the caravan after it had been delivered. We also note there was a dispute concerning whether a rear box was on the caravan when it was weighed and/or whether it had been removed by the first appellant: Reasons at [59].
In reply, the respondents rely on the evidence of their expert Mr May, noting that Mr Young in his report indicates he has not in fact inspected the caravan.
They also submitted that the evidence concerning weighbridge certificates provided by the appellants was "confused". The respondents deny the caravan was weighed prior to all works being completed and that the compliance plate properly records a tare weight of 2280 kg. The respondents rely on the signed weighbridge ticket dated 27 June 2017 issued at 11:59 am attached to the written submissions, which formed part of the evidence in the proceedings at first instance. They also submit that the unsigned "duplicate" issued on 18 July 2019 (also attached to their submissions) apparently recording a weigh of 2440 kg at 10:00am on the same day is new evidence and should not be permitted.
In any event, on 27 June 2017 the respondent submits that the explanation for the difference in weights is that the van was weighed earlier, when it had water in a water storage tank, which was subsequently drained because it was necessary to establish the tare weight when the water storage tanks were empty. Consequently, the respondents say this evidence, even if accepted, does not refute the evidence of the weight of the caravan when weighed at 11:59 am.
That is, the Tribunal was correct to accept the tare weight of the caravan was 2280kg when delivered.
As to differences in weight at other times, the respondents say these are explained by the way the caravan was loaded and/or alterations made by the appellants subsequent to delivery. Alterations included the fitting of a rear box which occurred after the compliance plate was attached and which had the consequence of reducing the tow ball weight due to its positioning.
In relation to the weights originally advised (namely 132 to 150 kg tow ball weight when 2100 kg tare weight) the respondents say these weights were for a standard caravan prior to the inclusion of the extra equipment which the appellants required and which was installed, the compliance plate being fixed based on the caravan with additional equipment actually supplied. In this regard the respondents accepted at the hearing of the appeal that the compliance plate must record the weights of the caravan as constructed.
In their written submissions in response to the respondents' submissions, the appellants reiterated that the first respondent had misrepresented the tare weight as 2100kg and the tow ball weight of 130 to 150kg when the caravan was sold and that the respondents have never provided any evidence to support their claim that the total weight was 200 kg is stamped on the compliance plate. The appellant again referred to the various certificates and variously described the information recorded on the compliance plate as a "plucked … figure out of the sky".
Lastly, the appellants said the Tribunal should impose fines upon the first respondent, its representative Mr Mckensey and Mr Middleton. However the Tribunal has no power to make such orders in the present proceedings.
[3]
Consideration
The appeal was filed 5 days late. The delay is a short period and no real prejudice is shown to exist to the respondents if time is extended. We will make an order to do so.
There is a right of appeal on a question of law. Otherwise leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). The principles applicable in respect of the grant of leave are set out in Collins v Urban [2014] NSWCATAP 17.
There are two matters that can conveniently be dealt with as preliminary issues.
First, the appellants sought leave to adduce new evidence in support of their appeal. This material included evidence concerning a request for repairs and an allegation that there was a failure to carry out those repairs. The new evidence was agreed at the hearing of the appeal to consist of AB 2 Tabs C (except weighbridge certificate date 18 August 2018), F, 13, 14, 17 and X). This material appears to relate to requests made of the first respondent after the hearing had concluded on 27 February 2019. This material, which raises new claims, should not be permitted in an appeal against the Decision.
In addition, the appellants sought to introduce new evidence concerning whether the first respondent was a member of the Caravan Association referred to above. We do not think this material is relevant to the issues raised in the original application. Further, if it is relevant, it was reasonably available and should have been provided prior to the original hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.
Consequently, we reject the new evidence.
Secondly, the appellants say they were denied an opportunity to issue a summons to require the workshop supervisor of the first respondent (Luke) to attend the hearing for cross-examination.
As we understand their submission, the question of the summons directed to the workshop supervisor was raised at the hearing on 9 November 2018, the hearing then being adjourned part heard until 27 February 2019.
There is no evidence that a summons was requested to be issued following the hearing on 9 November 2018. All that appears to have been said by the appellants on 9 November 2018 is that the respondents' evidence was provided late, no evidence was provided from the workshop supervisor and that the appellants' wished to ask him questions: see transcript at AB 3 Tab D p 3. However, when asked by the Tribunal on 9 November 2018 whether an adjournment was sought, the first appellant said "I'm prepared to run the hearing today": Transcript at AB 2 Tab D p 5. There is no evidence that the appellants subsequently sought to issue a summons for the resumed hearing on 27 February 2019 or that such an application was refused.
Consequently, we reject the challenge to the Decision on the basis the appellants were denied an opportunity to issue a summons and/or cross-examine the workshop supervisor.
In relation to the dispute concerning relevant weights, the Tribunal made the following findings:
1. The initial information provided concerning the caravan tow ball weight and tare weight was for a "generic caravan in this model", prior to the fitment of any accessories, information known to Mr Middleton: Reasons at [83].
2. The appellants required modifications to the standard caravan which would add weight and could not reasonably have believed that the caravan to be supplied with modifications would have the same weights: Reasons at [86];
3. The appellants accepted the caravan with a compliance plate showing higher weights and the Tribunal rejected evidence from the first applicant there had been discussions about what would happen "if he could not work around those weights": Reasons at [87].
4. Consequently, there was no relevant misrepresentation that the caravan would have a tow ball weight of 130-150 kg or that the caravan, when delivered, would have a tare weight of 2100 kg.
5. In relation to the expert evidence, the Tribunal preferred the evidence of the respondents' witness Mr May to that of the appellants' expert Mr Young: Reasons at [79]
6. Both witnesses gave evidence that a public weighbridge measures may have a variance of up to 20 kg: Reasons at [46] (Mr Young), [72] (Mr May) and [97];
7. Mr Middleton had obtained weights for the caravan, first when unattached to a towing vehicle and second when attached to a towing vehicle. The first weight being 2280 kg as recorded on the weighbridge certificate dated 27 June 2017 at 11:59 am. The second weight was provided by "the weighbridge operator calling out the weight" and Mr Middleton making a note of that weight. No second certificate was provided: Reasons at [56]. The Tribunal accepted his evidence: Reasons at [100].
8. Based on the measurements obtained by Mr Middleton, referred above, the Tribunal accepted:
1. Mr Middleton had calculated a tow ball weight of 200 kg at the time of registration: Reasons at [100], and
2. The tare weight was measured at 2280 kg: Reasons at [97].
1. Consequently, there was no relevant misrepresentation in respect of the compliance plate information.
2. As to subsequent weighings of the caravan, the Tribunal found
1. there had been "some inclusions and modifications to the van" since its supply: Reasons at [101];
2. no independent expert evidence had been obtained in connection with the subsequent weighing of the caravan: Reasons at [102],
3. that different tow ball weights have been achieved "including when the items installed on the van have been moved or modified": Reasons at [103]; and
4. the subsequent tare weights were taken at a time when additional items of equipment had been added to the caravan, for example a rear storage box weighing approximately 100 kg: Reasons at [104].
1. In relation to the alternative claim concerning whether or not the axle rating and bearings were of acceptable quality, and attempt to amend the application to include this claim, the Tribunal rejected the proposed amendment because it was first made on day 2 of the hearing and the respondent had not had an opportunity to provide evidence in reply: Reasons at [6].
The challenges made by the appellants relate to findings of fact. Consequently, leave to appeal is required and leave may only be granted if the appellants can establish they may have suffered a substantial miscarriage of justice: Sch 4 cl 12 of the NCAT Act.
The Tribunal identified the evidence of the parties concerning the alleged misrepresentation that the tow ball weight would be 130-150 kg and the tare weight would be 2100 kg. The Tribunal accepted that the statements made by Mr Middleton, as representative for the first respondent, about these weights were in respect of a standard caravan without any additional fitments.
The effect of the Tribunal's findings is that it was unlikely Mr Middleton, when dealing with the appellants, would have indicated at the initial discussions between the parties what the final relevant weights of the caravan would be. This could only be established when all fitments were attached and the caravan weighed in order to complete the information on the compliance plate.
There is no evidence to which we have been referred which demonstrates this finding of fact was in error. We see no error in the approach adopted by the Tribunal and no reason exists to grant leave to appeal on this aspect of the decision.
In relation to the challenge on the basis that the information on the compliance plate misrepresented the actual tow ball weight and the tare weight of the caravan supplied, again this matter raises a ground for which leave to appeal is required. This is because the appellant's challenge the findings of fact concerning the actual weight of the caravan.
A photograph of the compliance plate is found in the report of Mr Young: AB 2 Tab B page 1. In his report, Mr Young said that each of the tow ball and tare weights must be measured, not calculated. However, in relation to the tow ball weight, Mr Young states in his evidence (AB 2 Tab B p 2) that this tow ball weight is calculated by using the following formula:
Actual Ball Loading = "All-up Mass" - "Axle(s) Loading"
In this regard, the weights to be measured to perform this calculation are those weighing the caravan when unconnected and connected to the towing vehicle: see diagram in Mr Young's report AB 2 Tab B p7.
As recorded in the Tribunal's findings which we have set out in paragraphs 39 (7) above, the calculation of the tow ball weight of 200 kg as recorded on the compliance plate was established by Mr Middleton using this methodology.
Secondly, the weighbridge certificate dated 27 June 2017 at 11:59 am records the tare weight as 2280 kg as recorded on the compliance plate.
Again, no evidence to which we have been referred would establish that the findings of fact made by the Tribunal were in error.
The subsequent weighings of the caravan after further modifications have been made provide no basis to conclude the original tare weight was incorrect. Further, the modifications and/or the manner in which the caravan is loaded will, as established by the evidence and accepted by the Tribunal, affect the tow ball weight. Consequently, there is no reason to conclude that the Tribunal's findings concerning discrepancies in the weighing of the caravan at different times were in error or that the Tribunal was wrong to conclude the compliance plate accurately recorded all necessary information.
Accordingly, we are not satisfied the appellants may have suffered a substantial miscarriage of justice and leave to appeal should be refused.
Further, having rejected the factual challenges, there is no error established in connection with the various misrepresentation claims which the appellants made.
The final matter to deal with is the Tribunal's rejection of the claim concerning the defective axle and wheel bearings.
No challenge was made to the Tribunal exercising its discretion to reject the amendment application. In any event, we see no error in what has occurred, particularly where the issue was only raised on the second day of the hearing: Mesiha v Murrell [2017] NSWCATAP 1 at [29] and following.
Consequently, this ground should not be permitted to be raised in the appeal.
In reaching this conclusion, we note the Tribunal did not determine the caravan was defect free. Rather, the Tribunal rejected the claim that the caravan "was not of acceptable quality because there were issues requiring rectification": Reasons at [115].
We note the respondents' said in their written submissions on this aspect in this appeal at page 10:
… a recall letter had been sent to the first [appellant] advising him of this problem [referring to the axle and bearing issue] and that this defect could be simply resolved by upgrading the axle bearings.
In making this submission, the respondents referred to a letter from the first respondent being a letter dated 14 January 2019 recalling the caravan (respondents' submissions p 17) which stated:
We therefore are recalling all affected caravans to upgrade the bearings to a parallel bearing system which will easily provide the required safety factor
In these circumstances, where it would appear work is yet to be performed by the first respondent in accordance with the recall notice, it is inappropriate for us to make any rulings or comments on this aspect. The position is the same in respect of the alleged failure of the suspension in April 2019 identified in the appellant's submissions referred to above.
[4]
Orders
It follows from what we have said that leave to appeal should be refused and the appeal dismissed.
The Appeal Panel makes the following orders:
1. Time to file the Notice of Appeal is extended to 23 July 2019; and
2. Leave to appeal is refused and the appeal is otherwise dismissed.
[5]
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: 13 November 2019