Sneesby v Market Direct Group Pty Ltd t/as Market Direct Campers

Background to the Appeal

1. The dispute involves a new caravan that was purchased by the appellant from the respondent on 12 August 2015 for $47,490. Both parties are located in NSW. The caravan was sold as an XT 12 model and the appellant claimed the caravan which she purchased was a demonstrator XT 10 model that had been modified to appear as if it was an XT 12 model.
2. In December 2015 the respondent replaced the caravan with an XT 12 model. The appellant claimed the replacement caravan had defects, including water leaks from the roof and an inadequately powered solar electrical system. The caravan was repaired by the respondent on a number of occasions between January 2016 and June 2017.
3. The appellant claimed that the replacement caravan had either a "major failure" with the meaning of s 259 (1) and s 260 of the Australian Consumer Law 2010 ('the ACL') or a non-major failure within the meaning of s 259 (2) (b) (ii) of the ACL, and that she had rejected the goods within the rejection period in accordance with the provisions of ss 259, 262 and 263 of the ACL, notwithstanding that the caravan had not been returned to the respondent.
4. On 5 December 2017 the appellant commenced proceedings in the Tribunal. At that stage, the appellant was claiming a full refund of the purchase price of the goods. However, during the course of proceedings in the Tribunal, the claim was significantly enlarged by the appellant by the filing and serving of a document entitled 'Summary Points of Claim', where the appellant claimed: 1. A full refund of the purchase price. 2. "Consequential costs and disbursements" of $7,330.04. 3. Damages for distress, disappointment and inconvenience in the sum of $47,490. 4. Loss of "productivity and enjoyment" in the sum of $2,500. 5. Replacement cost difference in the sum of $6,000. 6. Exemplary damages of $50,000. 7. Interest.
5. The appellant's Points of Claim filed in the proceedings below refers to various provision of the ACL, including ss 18 and 21 of the ACL; the consumer guarantee provisions involving ss 54-58 of the ACL; and ss 259-263 of the ACL.
6. The appellant was represented in the proceedings below by Ms Tracy Leigh, who describes herself as an "advocate" for caravan and recreational vehicle owners. The respondent was legally represented.
7. The matter had been listed for a Group List and Conciliation hearing in the Tribunal in January 2018. It was set down for a hearing with directions regarding the filing and serving of evidence. The Registry of the Tribunal subsequently notified the parties the matter had been listed for hearing on 14 May 2018. The appellant had filed and served documentary evidence, including expert reports.
8. However, the respondent wrote to the Tribunal requesting an extension of the timetable to file and serve evidence. The respondent proposed an extension beyond the hearing date of 14 May 2018. The appellant in writing opposed the respondent's request.
9. The Tribunal listed the matter for a directions hearing on 30 April 2018, and the parties appeared by telephone. Relevantly, the Tribunal made directions that: (i) the hearing date of 14 May 2018 was confirmed; (ii) parties and their witnesses were to attend the hearing, unless the other party did not require the witness for questioning; and (iii) the respondent was to file with the Tribunal and serve on the appellant by person or by post its documentary evidence, including expert evidence, by 10 May 2018.
10. At approximately 11.00 am on 11 May 2018, the respondent served on Ms Leigh by email approximately 700 pages of evidence. The respondent's evidence included expert reports by Mr Murdock; Mr Malone and Mr Hann. The evidence also included large extracts of various Australian Standards referred to by the respondent's experts.
11. The hearing proceeded on 14 May 2018. At the hearing, the appellant was represented by Ms Leigh and the respondent was represented by Mr Taylor of Counsel.
12. Although it is not dealt with in the decision of the Member, by reason of the caravan being sold as a new vehicle, and appearing to fall within the definition of "new motor vehicle" used "substantially for private purposes" under s 79S (7) of the Fair Trading Act 1987 (NSW) ('the FTA'), the Tribunal has proceeded on the basis that it had jurisdiction in the matter irrespective of the monetary amount claimed or in dispute.

Reasons of the Tribunal

1. The Member published a written decision on 29 June 2018 comprising of 14 pages. Relevantly, the Member: 1. Accepted the evidence of the respondent's expert Mr Murdock and found that although the caravan leaked, it could be repaired in a "straightforward" manner as identified by Mr Murdock at a cost of $3,399 (para [15] reasons); 2. Found that there was no reasonable risk water leaks could interact with live electricity and the caravan was not unsafe (para [14] and [16] (2) reasons); 3. Found that the electrical system of the caravan had been repaired by the respondent; and the separate allegation that the solar power system lacked adequate capacity was "not a defect" (para [23] reasons); 4. Found that the appellant had failed to establish that any other of the alleged defects "continued" (sic) and should be the subject of an award of damages (para [25] reasons); 5. Found that a claim under s 259 (2) (b) (ii) of the ACL was "not argued" and findings were not made on this issue, but it was "difficult to see" how an email of the appellant dated 13 November 2017 amounted to a demand to repair the caravan (para [19] reasons); 6. Rejected most of the claims for consequential loss; the claim for general damages for "disappointment"; interest; and exemplary damages (para [27] reasons); 7. Found that the respondent had breached s 259 (1) (b) of the ACL because the failure was repairable, and the failure was not a "major failure" because a reasonable consumer being informed of the "straightforward and correctable" defect at the time of purchase would still have purchased the caravan, and that the finding "is not altered by the fact that the respondent has failed on at least two occasions to fix the leaking" (para [16] reasons); 8. Found that the defect was not a "major failure" under s 259 (3) of the ACL as defined in s 260 of the ACL; and that as s 259 (2) of the ACL was "not engaged", the appropriate remedies were limited damages for the cost of repairing the caravan so that it does not leak ($3,399) or an order that the repairs be conducted by the respondent (para [33] reasons). However, the Tribunal also found that the appellant was additionally entitled to damages of $500 for the "diminution of enjoyment" of a holiday to Kylie's Beach at Christmas/New Year 2016-2017; and $1,640 for the cost (calculated on the basis of $0.77c per kilometre) of travelling to Sydney on two occasions to have the caravan unsuccessfully repaired by the respondent (paras [26] and [29] reasons). 9. Awarded the appellant an remedy of $2,140 in damages (for the "diminution of enjoyment of holiday" claim and travelling expenses claim) and in addition, ordering that the appellant could choose in writing within 14 days of the date of the decision to either (i) have the leak repaired by the respondent and payment of "reasonable expenses" of the appellant to transport the caravan for repairs; or (ii) the appellant be paid $3,399.

Scope and nature of internal appeals

1. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80 (2) Civil and Administrative Tribunal Act 2013 (NSW) ('the NCAT Act').
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl. 12(1) of sch. 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
3. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl. 12(1) of sch. 4 may have been suffered where: "… [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl. 12(1) of sch. 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
5. In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

Time To Appeal

1. The appeal was filed within the relevant limitation period in Reg 25 (4) of the Civil and Administrative Tribunal Rules 2014 (NSW).

Grounds of Appeal

1. The grounds of appeal were prepared by Ms Leigh and is a prolix, confusing document containing 33 grounds of appeal.
2. The appellant's appeal submissions were prepared by Mr Chatterjee of Counsel. Unfortunately, no amended grounds of appeal were filed, which at the hearing of the appeal Counsel for the appellant accepted should have been done.
3. However, the appeal submissions identified 7 "questions", which, when further analysed, identified the key grounds of appeal in substance as: 1. Failure to provide procedural fairness, by failing to adjourn the hearing in circumstances where the appellant clearly could not adequately present her case in circumstances where over 700 pages of documents had been served by the respondent shortly before the hearing. 2. Failure to provide procedural fairness by not giving the appellant the opportunity to cross examine respondent's witnesses, in circumstances where the Member did not allow either party to cross examining witnesses. 3. Failure to consider aspects of the appellant's claims, including the operation of s 259 (2) (b) (ii) of the ACL; s 54 of the ACL; and s 18 of the ACL in the context of the findings by the Tribunal that the respondent had twice previously failed to adequately repair the water leaks. 4. Failure to give adequate reasons.
4. The written submissions in reply by the respondent, prepared by Mr Taylor of Counsel, engaged with the "questions of law" identified in the appellant's submissions, and Mr Taylor conceded (in our view, quite properly) at the hearing that the respondent was not prejudiced by Amended Grounds of Appeal not being filed, and could meet the arguments raised by the appellant. The respondent did not seek an adjournment of the appeal hearing.
5. The Appeal Panel was provided with a written transcript of the hearing, which the parties agreed was an accurate transcript.
6. The grounds of appeal identified in para [22] above are all alleged errors of law, for which leave to appeal is not required: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [14]-[21].

Ground 1-Failure to Adjourn the Proceedings

1. The appellant submits that the Tribunal erred by either (i) admitting into evidence the documents of the respondent (including expert evidence), which was served 1 day late under the timetable; and (ii) if the evidence was admitted, failing to adjourning the proceedings because it was patently unfair to expect the appellant or her representative to be able to digest over 700 pages of evidentiary material a few days prior to the hearing and adequately present her case.
2. The appellant accepts that no adjournment was clearly sought by her at the hearing, but submits that this was in the context of the Member stating on a number of occasions during the hearing that the matter was expected to finish on 14 May 2018, and would not be adjourned.
3. Having read the transcript of evidence, we accept that the Member asserted on a number of occasions that the matter was expected to be heard and conclude on 14 May 2018 and that each party must present their case within the 3 hours allocated.
4. The respondent submits that the real complaint by Ms Leigh at the hearing was that the documents had been served electronically approximately 11 hours outside the timetable for the respondent to file and serve its evidence, and that Ms Leigh had previously stated she would accept electronic service. The respondent submitted that, even if an adjournment had been applied for by the appellant, it would not have been granted and the appellant was able to fairly argue her case.
5. In our view, irrespective of whether a party makes an application for an adjournment, if circumstances, such as the late service of a large volume of evidentiary material on a party who is not legally represented, clearly warrant a Court or Tribunal raising with a party whether or not it is seeking an adjournment, the failure to do so and properly rule on any adjournment application is a denial of procedural fairness: Italiano v Carbone [2005] NSWCA 177 at [105].
6. In admitting the respondent's documentary evidence, the reasons of the Member focus on there being an "absence of evidence of substantial prejudice arising from electronic service 11 hours out of time" (para [5] of the reasons).
7. However, by focussing on the fact that the documents were served electronically "11 hours out of time", the Member did not adequately consider whether the appellant could fairly meet the respondent's evidence and present her case adequately when such a large volume of material including expert reports had been served in such close proximity to the hearing date. Under these circumstances, if the Member was prepared to grant leave to the respondent to admit the documents, the Member should have clearly offered the appellant the opportunity to apply for an adjournment.
8. The respondent submits that it was the Tribunal who, at the directions hearing on 30 April 2018 had made a timetable which accommodated the respondent filing and serving its evidence 4 days prior to the hearing, and one of the reasons it had done so was that the appellant at the directions hearing had objected to any extension of time which would cause the hearing date of 14 May 2018 to be vacated.
9. However, the salient issue is not that the Tribunal made directions that allowed the respondent to file and serve its evidence 4 days prior to the hearing. There is nothing to indicate that the Tribunal, or the appellant, had any idea the respondent would be serving over 700 pages of evidence. A party can still make an application for an adjournment even if the timetable for the filing and serving of evidence has been complied with.
10. Rather, the key issue which the Member should have focussed upon is not that the respondent had sent its documents electronically to the appellant's representative "11 hours" outside the timetable to file and serve documentary evidence, but that it had served over 700 pages of evidence including expert and technical evidence, that the appellant and her representative were expected to digest in very close proximity to the hearing date.
11. The respondent did not comply with the directions regarding the filing and serving of documentary evidence, and required the Tribunal to grant leave for it to rely upon its evidence. Once the Tribunal had decided to grant leave to the respondent to admit the documents the Tribunal was obliged in the circumstances to offer the appellant the opportunity to apply for an adjournment considering the issues in dispute; the amount in dispute; and the large volume of documents served by the respondent in very close proximity to the hearing date.
12. The respondent submits that, even if the appellant had been offered an adjournment, the Tribunal would not have adjourned the hearing and accordingly any error made no difference to the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [9]. The respondent submits that much of its documentary evidence was extracts attached to its expert reports of relevant Australian Standards.
13. The applicable principles regarding adjournment applications in the Tribunal have been expressed in a number of Appeal Panel decisions, including O'Neill v T & I Engines Pty Ltd [2015] NSWCATAP 77; Armee v Brealey [2017] NSWCATAP 141; Roberts v Morphett Constructions Pty Ltd [2018] NSWCATAP 33; and Liang v Wincrest Group Pty Ltd [2018] NSWCATAP 126. Such decisions make clear that, although matters are expected to be heard on the allocated hearing date; and compliance with Tribunal directions and prejudice to the other party are important factors mitigating against the granting of an adjournment; a failure to adjourn proceedings which has the practical effect of depriving a party from having the reasonable opportunity of adequately presenting its case may constitute a denial of procedural fairness.
14. We are satisfied that, considering the very large amount of documentary evidence served by the respondent in very close proximity to the hearing date and outside the timetable for the filing and serving of documents, there is a very significant prospect that, if the Tribunal had offered the applicant the opportunity to apply for an adjournment and the parties been heard on the application, the Tribunal would have adjourned the hearing. The documents were large in volume, and much of the material was technical in nature, including reference by the respondent's experts to various Australian Standards. The appellant could also have sought that her experts be given an opportunity to consider the evidence and seek a direction that evidence in reply be allowed.
15. Further, the Member granted leave for the respondent's expert evidence to be admitted without inquiring whether the respondent's witnesses were available for cross examination at the hearing. The usual practice in the Consumer and Commercial Division of the Tribunal is that a party takes measures to ensure its witnesses are available at the hearing to be questioned by the other party. The information contained in the hearing notices of the Tribunal make this clear. The Tribunal can depart from that practice by making directions prior to the hearing that a party is only required to have witnesses available for cross examination if the other party requires the witness for cross examination.
16. In this matter, the Tribunal had made a direction prior to the hearing that both parties were obliged to make their witnesses available at the hearing for questioning, unless the other party did not seek to question a witness.
17. The Tribunal can, despite a party not having made its witnesses available at the hearing, still exercise its discretion to admit documents, including witness statements and expert reports, into evidence. In this regard, the Tribunal must consider the just, quick, cheap and efficient resolution of the real issues in dispute under s 36(1) of the NCAT Act; whether the cost to the parties is proportionate to the importance and complexity of the subject matter of the proceedings under s 36 (4) of the NCAT Act; and the obligation to give parties a reasonable opportunity to be heard and have their case considered under s 38 (5) of the NCAT Act.
18. The Tribunal can also admit business records and public documents into evidence despite the documents not being authenticated by a witness or forming part of a written statement of evidence of a party or witness. For example, a relatively straightforward consumer dispute or residential tenancy dispute where the amount of money claimed or in dispute is not large would be the type of matter where a hearing may proceed without witnesses being made available at the hearing for questioning and even if a party stated that it wanted to question a witness of the other party. In such circumstances, the Tribunal may still allow the hearing to proceed without infringing on principles of procedural fairness and the obligation under s 38 (5) of the NCAT Act, despite witnesses not being present for questioning by the other party. The lack of availability of a party's witness for questioning may affect the weight to be given to the evidence.
19. In this matter the parties had been directed that they must have their witnesses available for questioning at the hearing, unless the other party did not require the witnesses for questioning. The Member did not consider whether the respondent had its witnesses available for questioning when considering whether to grant leave to the respondent to rely upon its documentary evidence, or set out in the reasons whether or not the Member had given reduced weight to the evidence. This was a relevant consideration as to whether leave should be granted to the respondent to rely on the documents, and whether (if leave was granted) the proceedings should be adjourned.
20. We are not satisfied that it was inevitable that no adjournment of the proceedings would have been granted if the Tribunal had raised such an issue and property ruled upon it. Rather, we are satisfied that had the issue of an adjournment been raised and properly considered, an adjournment would have been granted. We are satisfied that, in the circumstances of the matter, a denial of procedural fairness has occurred and the ground of appeal has been established.

Ground 2-Failure to Provide Procedural Fairness By Not Giving the Appellant an Opportunity to Cross Examine Witnesses

1. We have partially dealt with this issue above in the context of the failure to offer the appellant the opportunity to apply for an adjournment.
2. The relevant principles regarding whether or not there is a denial of procedural fairness by not giving a party an opportunity to cross examine witnesses were discussed by the Appeal Panel in Morgan v Shardlan Pty Ltd as Trustee for the Stumar Family Trust t/as Carpet One and Blinds Wagga Wagga [2018] NSWCATAP 143 at [21] as follows: "There is no doubt that the failure of the Tribunal to allow a party an opportunity to cross-examine may, in some situations, constitute a denial of procedural fairness: see Gallo v Duflou [2014] NSWCATAP 115 at [21]. Further, a failure of the Tribunal to explain to unrepresented parties its procedures, if requested to do so, or ensure a party has a reasonable opportunity to be heard may also constitute a denial of procedural fairness and/or a failure by the Tribunal to comply with its obligations under s 38(5) of the NCAT Act: see Lee v Cha [2008] NSWCA 13 per Basten JA at [48]. Where there is a relevant failure, it may also be necessary to consider whether or not any failure which has occurred has resulted in a practical injustice: Raslan v Pan [2015] NSWCATAP 12 at [28] referring to the decision of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex Parte Lam(2003) 2014 CLR 1 at 13-14 [37]."
3. Having reviewed the transcript of the hearing, it does not appear the Member clearly enquired whether the respondent's witnesses (including its experts) were available for cross examination, or whether the appellant's representative sought to question them. Rather, the focus of the Member appears to have been on the relatively limited time allocated for the hearing; the "informality" of the Tribunal; and a debate as to whether the respective experts of the parties were suitably qualified and had complied with Practice Direction 3 of the Tribunal regarding expert reports.
4. The appellant's representative did state at the hearing that one of the appellant's experts, Mr Chapman (an electrician) was "prepared to be cross examined if necessary" (transcript P-46 at [23]). Further, the Member did state: "We're going to have an opportunity for cross examination" (transcript P-60 at [19]). However, the reference to there being "an opportunity for cross examination" occurred approximately half way into the hearing, and just after the appellant had started to give evidence. It is unclear whether the Member was referring only to cross examination of the appellant, or cross examination of all witnesses including the respondent's expert witnesses. The fleeting reference to "an opportunity to cross examination" at this point of the hearing is not, in our view, sufficient to make clear that the appellant (through her representative) had an opportunity to question the respondent's witnesses unless there were appropriate reasons not to allow cross examination.
5. In our view, considering the issues in dispute; the amount in dispute; and the remedies sought by the appellant, the Tribunal should have (i) enquired whether the respondent's experts were available for cross examination in the context of whether or not the Tribunal was going to grant leave to the respondent to admit into evidence documents that had not been filed and served in accordance with Tribunal directions; (ii) informed the appellant's representative that the appellant had the opportunity to question the respondent's witnesses; and (iii) asked the appellant's representative as to whether or not it sought to question the respondent's witnesses. After it became clear as to whether or not the respondent's witnesses were available for questioning and whether or not the appellant's representative sought to cross-examine them, the Tribunal could return to the primary initial task of determining whether or not the proceedings should be adjourned.
6. The failure to accord with the above procedure was a denial of procedural fairness in the circumstances of this matter, and practical injustice has been caused to the appellant, because the respondent's documents were admitted into evidence. The Member accepted the respondent's expert evidence over the appellant's expert evidence without the appellant being given the opportunity to question the respondent's expert witnesses and without the Tribunal making findings and giving reasons as to why the appellant was not given the opportunity to question the respondent's witnesses.

Ground 3-Failure to Consider All of the Appellant's Claims

1. The appellant submits that the Member failed to consider s 259 (2) (b) (ii) of the ACL and the Member's reasons at para [19] of the decision that "it is unnecessary to determine this as it was not argued" is incorrect.
2. Sections 259-263 of the ACL state as follows: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3‑2 (other than sections 58 and 59(1)) is not complied with. (2) If the failure to comply with the guarantee can be remedied and is not a major failure: (a) the consumer may require the supplier to remedy the failure within a reasonable time; or (b) if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may: (i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or (ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection. (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or (b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods. (4) The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure. (5) Subsection (4) does not apply if the failure to comply with the guarantee occurred only because of a cause independent of human control that occurred after the goods left the control of the supplier. (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). (7) The consumer may take action under this section whether or not the goods are in their original packaging. 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or (b) the goods depart in one or more significant respects: (i) if they were supplied by description - from that description; or (ii) if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (d) the goods are unfit for a disclosed purpose that was made known to: (i) the supplier of the goods; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or (e) the goods are not of acceptable quality because they are unsafe. 261 How suppliers may remedy a failure to comply with a 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: (a) if the failure relates to title - by curing any defect in title; or (b) if the failure does not relate to title - by repairing the goods; or (c) by replacing the goods with goods of an identical type; or (d) by refunding: (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. 262 When consumers are not entitled to reject goods (1) A consumer is not entitled, under section 259, to notify a supplier of goods that the consumer rejects the goods if: (a) the rejection period for the goods has ended; or (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; or (d) the goods have been attached to, or incorporated in, any real or personal property and they cannot be detached or isolated without damaging them. (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. 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.
3. Regarding s 259 (2) (b) of the ACL, the Member found at paragraph [19]: "There is a separate question of whether ACL s 259 (2) (b) was engaged. It is unnecessary to determine this as it was not argued. However, it is difficult to see how the email dated 13 November 2017 can amount to a requirement to remedy. To the contrary, it is a requirement to accept the caravan's return".
4. The email of 13 November 2017 referred to in para [19] is referred to in para [8] of the Member's reasons as follows: "On 13 November 2017, the applicant notified the respondent that she was rejecting the caravan and gave as one of the grounds that this was the third time it was leaking through the roof".
5. In our view, it is clear that part of the appellant's claim before the Member included claims that: 1. The caravan had a "major failure" within the meaning of ss 259 (3) and 260 of the ACL, and the goods had been rejected by the appellant within a reasonable period of time in accordance with s 259 (3) (a) and s 262 (2) of the ACL. Further, the caravan had been "returned" within the meaning of s 263 (2) (b) of the ACL by the appellant making it available for collection, as it couldn't be returned without significant expense and inconvenience to the appellant. On this basis, the appellant was entitled to a full refund of the purchase price; 2. If the caravan did not have a "major failure", the provisions of s 259 (2) of the ACL applied, and as the respondent had failed to successfully repair the water leaks despite the requests by the appellant, by reason of s 259 (2) (b) (ii) the appellant was entitled to reject the goods, and provided the appellant had notified the respondent of the rejection under s 263 (1) of the ACL and returned the goods under s 263 (2) (b) of the ACL by making them reasonably available for collection the appellant was entitled to a full refund of the purchase price; 3. The respondent had engaged in misleading or deceptive conduct or conduct likely to mislead or deceive in breach of s 18 of the ACL, because the respondent supplied a 25 amp "controller" to the solar electrical system of the caravan rather than the 50 amp "controller" that was represented to be "part of the package" (Transcript P38-[3]-[22]).
6. In Legend Signage Pty Ltd v Australian Managed Print Solutions Pty Ltd [2018] NSWCATAP 269, the Appeal Panel stated at [16]-[18]: A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration, or not taking into account a consideration which is required to be taken into account, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. These categories are not exhaustive of errors of law. In Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]-[107] the Appeal Panel analysed the case law on what constituted a major failure under the consumer guarantee provisions of the ACL mentioned above, summarising its conclusions at [99]-[102]. The Panel rejected the view that any breach of the guarantee of acceptable quality is a major failure. Under s 260(a), the test is objective. A series of individual or specific defects taken as a whole may constitute a major failure. The cost of repairs relative to purchase price and the nature of the defect are factors. Of particular significance is whether the defects are "teething problems" or go beyond that in terms of extent, timing and frequency of repair: that is, whether or not the defects can be remedied easily and in a timely manner. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to fix them, a reasonable consumer would have bought the goods or bought nothing or something else. Under ACL s 260(a), the rejection period for goods that are subject to a major failure is the period from the supply of the goods within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent, having regard to the type and likely use, and length of time and amount of use before a failure would reasonably become apparent. For a major failure constituted by chronic or repetitive defects taken as a whole, such a period is likely to be longer than for a single catastrophic defect. If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127.
7. The findings of the Member do not consider the appellant's claim under s 259 (2) (b) (ii) of the ACL.
8. In our view, the appellant clearly raised at the hearing that she was arguing for a full refund on the basis that she had elected to reject the caravan after the respondent had failed to adequately repair the caravan and cure the water ingress defect despite repeated attempts to do so.
9. The Member's finding that the claim under s 259 (2) (b) (ii) of the ACL was "not argued" was incorrect. The Member was obliged to consider whether the actions of the respondent in failing to adequately repair the caravan; and the subsequent conduct of the appellant, invoked the provisions of s 259 (2) (b) (ii) allowing the appellant to elect to reject the caravan and, if so, whether she had "rejected" the goods in accordance with ss 262 and 263 of the ACL.
10. The obiter dicta reference at para [19] of the Member's reasons to it being "difficult to see" how the appellant's email of 13 November 2017 can "amount to a requirement to remedy" does not deal with the issue before the Tribunal regarding s 259 (2) (b) (ii) of the ACL. The assertion of the appellant was that she had previously required the respondent repair the water ingress defect on a number of occasions, and it had failed to do so. The email of 13 November 2017 was being relied upon as evidence that the appellant had rejected the goods, not that she was "requiring a remedy".
11. The reasons of the Tribunal also make no reference as to whether or not the Member had considered the appellant's claim that she had purchased a solar system with a 25 amp "controller" provided (and replaced during the course of repairs with another 25 amp "controller" rather than the advertised 50 amp controller in the context of s 18 of the ACL. The reasons of the Member only make reference to this issue in the context of whether the 25 amp controller was of "acceptable quality" (paragraph [23] of the reasons).
12. We are satisfied the Member failed to consider key aspects of the claim, and an error of law has been established.

Adequacy of Reasons

1. The principles regarding adequacy of reasons have been dealt with by the Appeal Panel on many occasions. In Rockwell Constructions Pty Ltd v Llamas [2018] NSWCATAP 262, the Appeal Panel summarised the relevant principles as follows (at [17]-[18]) "The principles in this area are well known. They include the following: (1) the content and detail of the reasons for decisions will vary according to the nature of the jurisdiction which the body in question is exercising, as well as the consideration of the particular matter the subject of the decision: Wesfarmers General Insurance Ltd v Jameson [2016] NSWCATAP 136 at [39]; (2) the reasons should explain how the decision maker arrived at his conclusion. This involves reference to the relevant evidence; the relevant facts being set out and the reasons for making the relevant findings of fact: Beale v GIO of NSW (1997) 48 NSWLR 430 at 443; (3) reasons for decision need not be highly detailed and they should not be examined with an overly critical eye: O'Brien v Twyman [2016] NSWCATAP 125 at [51]; (4) it is essential to expose the reasoning on a point critical to the contest between the parties: Keith v Gal [2013] NSWCA 339 at [117]; (5) a judge (here the Tribunal member) should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons, or the process of reasoning, should be understandable and logical: Beale at 444; (6) there is a balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons, which involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal: Beale at 443. Beale is also authority for the proposition that an appellate body (here, the Appeal Panel) will reserve any intervention for situations in which it is left with no choice: that is, where no reasons have been given in circumstances where there was an obligation to provide them, and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice."
2. We are satisfied that there are deficiencies in the reasons of the Member sufficient to constitute an error of law.
3. The reasons of the Member do not show with sufficient detail or clarity that the Member has considered and made findings regarding claims under ss 18, 54, and 55 of the ACL. The reasons also do not indicate whether the Member had considered (on the basis of an implied finding of breach of s 54 of the ACL because the caravan continues to leak despite previous unsuccessful repairs) any alternative remedies under s 79N of the FTA if the remedial provisions of the ACL did not apply: Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93 at [97]-[103]. Even if the Member has considered such issues, the reasons are insufficient to reflect this and are deficient to the extent of constituting an error of law.
4. Further, the Member awarded the appellant $500 for "abandonment of a holiday at Kylie's Beach over the 2016-2017 break". The Member on the one hand identified that there "must more than a general claim for disappointment" (at para [26] (2) (c) of the reasons, but then subsequently describes this head of damages as "damages for disappointment".
5. The assessment of damages by the Member for "abandonment of a holiday" was on the basis of a lump sum for non-economic loss, not economic loss such as the cancellation of a booking at a caravan park that had been paid for in advance.
6. The basis upon which the Member awarded the appellant non-economic loss damages for "abandonment of a holiday" is identified as the decision of the Tribunal in Nguyen and Sy v The Trustee for the Nero CKD Unit Trust t/as View by Sydney [2017] NSWCATCD 98 ('Nguyen').
7. However, Nguyen has no relevance to the purported assessment of damages for "abandonment of a holiday" arising from a breach of the consumer guarantee to provide goods of acceptable quality or fit for purpose. Nguyen involved a breach of the consumer guarantee under s 61 of the ACL to provide services fit for purpose by the organiser of a wedding reception, and the Tribunal calculated damages on the difference in the value of the services paid for by the consumers compared to the value of the services actually provided. The Tribunal in Nguyen specifically held that it was not awarding damages on the basis of distress, anxiety or disappointment, as the consumers would fail to surpass the threshold under s 16 of the Civil Liability Act 2002 (NSW) ('the CLA').
8. There is no adequate explanation in the reasons of the Member regarding the basis upon which non-economic loss damages were awarded for "abandonment of a holiday". In our view, non-economic loss damages for "abandonment of a holiday" due to the condition of the caravan is conceptually different to damages or compensation for loss of quiet enjoyment of residential premises (Roberts v NSW Land and Housing Corporation [2017] NSWCATAP 9 ('Roberts') at [83]) or damages arising from the diminution of the value of services provided where the services are not fit for purpose (Nguyen).
9. Rather, the claim for non-economic loss damages due to "abandonment of a holiday" involves damages arising from "distress and disappointment" and attracts the provisions of s 16 of the CLA (Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 at [391]). The reasons of the Member do not address s 16 of the CLA and are deficient to the extent of constituting an error of law.
10. The reasons of the Member regarding the finding that the repeated water leaks were not a "major failure" under s 259 (3) and s 260 (a), (c) and (d) of the ACL are also inadequate. The Member found that the "correction of the defect was straightforward and correctable…not altered by the fact that the respondent has failed on at least two occasions to fix the leaking" (para [16] reasons). However, the number of times the caravan had previously been unsuccessfully repaired for the same defect was clearly of significance to whether or not the supply of the caravan was a "major failure", and the reasons do not sufficiently explain how the Member has considered this issue in the context of s 260 of the ACL.

Conclusion

1. The Appeal Panel is satisfied that the appellant has established errors of law in the decision, and it is appropriate to remit the matter for re-hearing before a different Member. The findings of the Appeal Panel in the appeal proceedings have no bearing upon the ultimate outcome of any future hearing after the remittal.

Matters Requiring Further Comment

1. The above findings are sufficient to deal with the appeal. However, there is one further matter requiring comment.
2. The Member ordered that, in addition to damages for abandonment of a holiday and travelling expense to have the caravan repaired, the appellant could either make a written election to have the caravan repaired by the respondent, or be awarded damages for the cost of repairs. If the appellant elected to have the caravan repaired by the respondent, the appellant was to be paid "reasonable expenses" in returning the caravan for repairs.
3. There is no conceptual difficulty in the Tribunal making different remedial orders for different causes of action or different types of loss. For example, in a case involving a motor vehicle which is not of acceptable quality, the Tribunal may make an order for damages to compensate the consumer for the cost or repairs that the consumer has previously expended on the vehicle; and additionally a work order that the motor dealer who sold the vehicle conduct further repairs.
4. However, the orders of the Member were that the appellant could elect to either (i) have the caravan repaired by the respondent with the scope of works as set out in Mr Murdock's report; or (ii) elect to receive damages for the cost of the repairs set out in Mr Murdock's report. The Member ordered that the appellant can elect between two different types of remedy for the same cause of action and the same loss or damage.
5. When the Tribunal makes remedial work or repair orders, it is very important that the orders are clear and unambiguous: Ndaira v Allways Building NSW Pty Ltd [2018] NSWCATAP 279 at [31]. In particular, if a work order is made (i.e. in the context of this matter, an order to repair the caravan), it is important that the orders clearly set out the scope of works for repair, and the date by which repairs are to be concluded. Clarity is important because: (i) it must be clear to the parties what they are obliged to do to comply with Tribunal orders; and (ii) if a work or repair order is made and not complied with, the party in favour whom the order was made may apply to renew the proceedings under cl 8 sch 4 of the NCAT Act. If orders are ambiguous or contingent upon other events occurring, it may be impossible to ascertain whether or not the orders have been complied with.
6. By making orders that give a party the opportunity to elect between different remedies for the same cause of action and same loss or damage, the Tribunal runs the risk of introducing a degree of ambiguity and complexity that is unnecessary, leading to a dispute as to which remedy the party has elected to receive. The preferable course of action is that if the Tribunal finds that an order for work or repairs is appropriate, such an order is made without an alternative order for damages for the cost of the same work or repairs. If the order for work or repairs is not complied with, the party can then make an application to the Tribunal to renew the proceedings: Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98.
7. It is also usually not appropriate to make an order that party be paid "reasonable expenses". If a money order is being made, it should be quantified. If proceedings are renewed because there is a dispute as to what are "reasonable expenses" it may be impossible to ascertain whether or not that order has been complied with.

Costs

1. If the appellant seeks an order for costs of the appeal, the costs application will be dealt with in the following manner: 1. The appellant is to file and serve written submissions on the issue of costs by 14 days from the date of this decision. Such submissions are to include reference to whether or not the appellant agrees to costs being determined on the papers in accordance with s 50 (2) of the NCAT Act. 2. The respondent is to file and serve any written submissions on the issue of costs in response to the appellant's submissions on or before 14 days thereafter. 3. Subject to the submissions of the parties, the issue of costs may be determined on the papers and without further oral hearing in accordance with s 50 (2) of the NCAT Act.

Orders

1. The Appeal Panel makes the following orders: 1. Appeal allowed. 2. Orders of the Tribunal dated 29 June 2018 are set aside. 3. Matter remitted to the Tribunal to be determined according to law. 4. Any application for costs to be dealt with as follows: 5. The appellant is to file and serve written submissions on the issue of costs by 14 days from the date of this decision. Such submissions are to include reference to whether or not the appellant agrees to costs being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. The respondent is to file and serve any written submissions on the issue of costs in response to the appellant's submissions on or before 14 days thereafter. 7. Subject to the submissions of the parties, the issue of costs may be determined on the papers and without further oral hearing in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

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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: 26 March 2019