Becke v Caravans and Motorhomes Pty Ltd and Jayco Corporation Pty Ltd

[2017] NSWCATCD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Becke v Caravans & Motorhomes Pty Ltd & Jayco Corporation Pty Ltd [2017] NSWCATCD 62

Hearing dates:

13 April 2017

Decision date:

07 July 2017

Jurisdiction:

Consumer and Commercial Division

Before:

K. Ross Senior Member

Decision:

(1) Paul Becke is to deliver the caravan to a repairer nominated by the respondents, within 250 km of the applicant’s current place of residence, at a time to be agreed between the parties, and not later than 30 September 2017.

(2) Caravans & Motorhomes Pty Ltd & Jayco Corporation Pty Ltd, within 1 month of the delivery of the caravan pursuant to order 1, are to

(a) assess the corrosion of the chassis and leaf spring suspension and repair or replace those items as necessary.
(b) repair any deterioration in the shower recess silicone,
(c) assess and repair the leakage between the toilet and the washing machine,
(d) repair any cupboard doors which might be detaching, and
(e) assess and repair if necessary the roof around the air conditioning unit.

(3) The work is to be carried out in a proper and workmanlike manner within 1 month of delivery of the caravan to the nominated repairer.

(4) If there is any difficulty in complying with these orders either party may, on or before 1 July 2018, renew this application.

Catchwords:

MOTOR VEHICLE- fit for purpose, consumer guarantees

Legislation Cited:

Fair Trading Act 1987
Civil and Administrative Tribunal Act 2013

Category:

Principal judgment

Parties:

Paul Becke (applicant)
Caravans and Motorhomes Pty Ltd t/as Jayco Newcastle (respondent/supplier)
Jayco Corporation Pty Ltd (respondent/manufacturer)

Representation:

Applicant in person
Jeremy Brown and Craig Walsh for the supplier
Philip Rigby and Andrew Nolls for the manufacturer

File Number(s):

MV 16/37660

Publication restriction:

Unrestricted

reasons for decision

Application

1. The applicant (“the consumer”) seeks an order for replacement or refund of the purchase price of the caravan which he purchased from Caravans & Motorhomes Pty Ltd (“the supplier”), and which was manufactured by Jayco Corporation Pty Ltd (“the manufacturer”). The respondents oppose the orders sought.

Applicant’s evidence

2. The applicant relied upon documents attached to his application, including a chronology, a report of Assessing Sydney Vehicles dated 17 June 2016, receipts for repairs carried out to the caravan, and a statement dated 6 January 2017. He also gave evidence on affirmation at the hearing.

Supplier’s evidence

3. The supplier’s representatives gave evidence at the hearing. The supplier relied upon a written response to the issues raised by the applicant, a report from the Galvanizer’s Association of Australia addressed to GB Galvanising Service Pty Ltd, and photographs.

Manufacturer’s evidence

4. The manufacturer’s representatives gave evidence at the hearing. The manufacturer relied upon a statement, the report supplied by the supplier, and an extract from the user’s manual for the awning.

Findings

5. The Tribunal makes the following findings, based on the uncontested evidence before it:

1. On or about 6 January 2014 the applicant entered into an agreement with the supplier for the purchase of a new Jayco Sterling 21.65 -7.OB.13ST Caravan. The purchase price was $56,000.00. The applicant paid for the caravan in full. He took delivery of it on or about 20 January 2014.

2. On or about 3 March 2014 the applicant found the mains water inlet was leaking and the wardrobe lights were not working. He was supplied with replacement parts.

3. On 11 March 2014 the applicant discovered that the awning was leaking. It was repaired under warranty.

4. Further issues were identified by the applicant and warranty work undertaken on or about 1 April 2014 to address leaking from the shower, continuing leaks and a faulty rotisserie to the awning, a split in the surround around the front window, misalignment of the overhead cupboards, issues with the roof sealant, a defective door panel lock, issues with the mains water, a leak from the hot water system, issues under the bed, faulty cupboard doors drawers and locks, misalignment of the ensuite door, issues with the drifter and TV reception.

5. On 2 May 2014 repairs were carried out to address the recurrence of the shower leak and ongoing issues with the awning.

6. On 3 May 2014 the caravan lost a wheel on the Bruce Highway.

7. On 28 August 2014 the radio was replaced, the shower lights were replaced because they were rusting and a door catch was adjusted and gaps attended to.

8. In November 2015 further repairs were carried out to address leaks from the shower and to repair consequential damage to the vanity and wall ply. Additional supports were installed to address the floor sagging in front of the sink. The table was reaffixed to the wall, shower door rollers and lights were replaced, the gap between the bench top and splashback was resealed and the water pressure valve replaced. The awning skin was also replaced.

9. The applicant has, since the date of purchase of the caravan, lived in it as his principal place of residence. At the date of the hearing he retained possession of the caravan.

10. The applicant claims that there are ongoing issues which include cupboard doors falling off, separation of the silicon repair in the shower, a leak between the toilet and washing machine, ongoing issues with the awning (at the date of the hearing the applicant said that the awning had been destroyed in heavy rain), inadequate operation of the exhaust fan and rusting of the leaf springs and chassis.

Jurisdiction

6. The Tribunal is satisfied that the Applicant is a “consumer” within the meaning of Section 79D of the Fair Trading Act 1987, (the Act) and the claim is a “consumer claim” within s79E of the Act. The Respondents are both suppliers within the meaning of s79G of the Act, that is, relevantly, persons who in the course of carrying on a business supply goods, in this case the caravan supplied to the applicant.

7. The caravan falls within the definition of a new motor vehicle and was supplied to the applicant to be used substantially for private purposes within the meaning of s79S (6) of the Act. The monetary limit on the Tribunal’s jurisdiction does not apply in these circumstances.

8. The goods were supplied in NSW. The proceedings were commenced within 3 years of the date the cause of action first accrued (s79L).

9. The Tribunal accordingly has jurisdiction to hear and determine the claim.

The application of the ACL (NSW)

10. The Australian Consumer Law applies in NSW (“the ACL (NSW)”) through its adoption in the Act (s28). The applicant is a “consumer” within the meaning of s 3 of the ACL (NSW).

11. The ACL (NSW) provides consumers with a number of consumer guarantees, including a guarantee that the goods will be of acceptable quality (s 54).

12. Section 54 provides that

“(2) Goods are of acceptable quality if they are as:

(a) fit for all the purposes for which goods of that kind are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from defects; and

(d) safe; and

(e) durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a) the nature of the goods; and

(b) the price of the goods (if relevant); and

(c) any statements made about the goods on any packaging or label on the goods; and

(d) any representation made about the goods by the supplier or manufacturer of the goods; and

(e) any other relevant circumstances relating to the supply of the goods.”

Was the caravan fit for all the purposes for which goods of this kind are commonly supplied?

13. The respondents claim that the purpose for which a caravan of this kind, would be commonly supplied is for holidaying, and not for use as a person’s principal place of residence. The applicant gave evidence that he advised the respondent that he intended to live in the caravan, but this evidence is not consistent with his evidence that he intended to travel around Australia in the caravan. The Tribunal finds that, at the time he purchased the caravan, the applicant intended to travel around Australia, and in these circumstances he would not have advised the supplier that he was intending to live in the caravan (other than during the period of travel discussed). The applicant has in fact lived in the caravan since it was purchased.

14. The applicant submits that the requirements for warranty work to be carried out meant the goods were not fit for purpose. The Tribunal finds that whilst there were six separate occasions in the first twelve months when the caravan was returned to a licensed repairer for warranty work, there was then a period of 15 months when no warranty work was reported or requested. The caravan was repaired in November 2015, and the applicant then made no further complaint until these proceedings were commenced on 5 August 2016.

15. The Tribunal accepts the submission of the respondents that some of the things now complained about (for example, cupboard doors falling off or needing adjustment, or silicone requiring attention) are matters which are capable of repair. Some of the issues are maintenance issues, and may have been exacerbated by the fact that, rather than using the caravan for holidaying, the applicant has been living in it as his principal place of residence.

16. Taking all these issues into account, the Tribunal is satisfied that the caravan is fit for purpose.

Was the caravan acceptable in appearance and finish?

17. The Tribunal accepts the applicant’s evidence that there have been a number of issues which have arisen since the van was purchased and which have affected the appearance of the caravan. These include the rusting of interior items, and the issues with cupboards referred to above. The Tribunal finds that in this regard the caravan does not comply with the guarantee that the goods be acceptable in appearance and finish.

Was the caravan free from defects?

18. The Tribunal is satisfied that the caravan was not free from defects. The defects included the issues in respect of the leaking shower, the awning, and the interior trim including the cupboards.

19. The applicant also complains about the state of the leaf spring suspension and the rusting of the chassis. The respondents submit that the rusting is not a defect but rather the result of environmental factors.

20. The Tribunal must assess the expert evidence relied upon by each of the parties. The applicant’s expert evidence is contained in the report headed “Assessors report motor third party.” It is not clear what the report actually comprises. It states “see also report attached” but there does not seem to be a report attached. The Tribunal notes that despite the Tribunal making directions for the applicant to provide the evidence on which he intended to rely to the Tribunal and the other party, no evidence other than a statement (which appeared to be a draft which had not been completed as to the relevant information) was supplied pursuant to the directions. The expert report was attached to the application filed. It is not clear to the Tribunal that the photos attached were taken by the author of the report, or when they were taken. The report says that “attached are images labelled with concerns to be reviewed.”…. “Attached also are listed times of concerns raised and repairs that were carried out numerous times dated and images attached to show and after my on site assessment there are still valid concerns”. The photos allegedly show issues which have not been addressed. However, in an email , the applicant’s solicitor states that the author of the report “confirms this is not the current state of the awning or cupboards”.

21. The report does not address the state of the leaf spring suspension and the rusting of the chassis at all.

22. The Tribunal can place little weight on the report which appears to be a cataloguing of the applicant’s concerns, rather than an independent analysis of the caravan and any defects which it exhibited at the time of the inspection.

23. The only expert evidence in respect of the state of the leaf spring suspension and the rusting of the chassis is the report provided by the respondents which concludes that “the corrosion of the chassis relates to the use of the caravan; most likely the caravan has been used in particularly corrosive environments.”

24. The Tribunal accepts the evidence of the applicant that the caravan has spent most of its life close to the coast, but that it has not been used in any other way which would not be anticipated. The Tribunal accepts that the corrosion evident may have been exacerbated in that environment. However the Tribunal is satisfied that, in order to be fit for purpose, a caravan ought to be able to withstand being close to the coast. The Tribunal does not accept that the caravan is free from defects if it is unable to withstand 3 years in a coastal environment.

Was the caravan safe?

25. The evidence is insufficient to support a finding that the corrosion of the leaf spring suspension and the rusting of the chassis makes the caravan unsafe. There is also insufficient evidence to conclude that the loss of the wheel on the Bruce Highway was caused by any manufacturing defect, or anything which the supplier did. It is more likely than not that the wheel became loose as a result of the actions of the repairer on the previous day, although the evidence is insufficient to support a finding to that effect. Furthermore, that company is not a party to these proceedings

Was the caravan durable?

26. The rusting of the leaf spring suspension and chassis supports a finding that the caravan is not durable.

Remedies available

27. Sections 259 – 263 of the ACL set out the remedies available where goods fail to comply with a consumer guarantee. If the failure to comply with the guarantee can be remedied and is not a major failure (s 259 (2)):

(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.

28. If the failure to comply with the guarantee cannot be remedied or is a major failure (s 259 (3)) 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.

29. The failure to comply with the guarantee is a major failure if (s 260):

(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.

30. The evidence discloses that during 2014 the respondents attended to the various issues which the applicant raised. Whilst the applicant alleges in these proceedings that they did not attend properly to the issues in 2015, there is no evidence that the applicant made any complaint about those things until he filed this application. The respondents have not refused to undertake the repairs and at the date of the hearing remain ready willing and able to do so. Many of the issues complained about, including the leaking of the shower, have been remedied. The exception is the rusting of the suspension and the chassis, which had not been reported until these proceedings were commenced and is not dealt with in the applicant’s expert report.

31. The Tribunal is not satisfied that the respondent and the manufacturer have each been given every opportunity to remedy the remaining defects in the caravan. In these circumstances, and in the absence of any expert evidence about the corrosion, the Tribunal cannot be satisfied that the failure to comply with the guarantee cannot be remedied.

32. The Tribunal must consider whether the failure to comply with the consumer guarantee is a major failure. If the corrosion of the suspension and the chassis can be addressed adequately, the Tribunal is not satisfied that a reasonable consumer, fully acquainted with the failure to comply with the guarantees, would not have acquired the goods. As this is the test which must be applied, and without evidence as to the extent of the corrosion and its effect on the durability of the caravan the Tribunal cannot be satisfied that the applicant is entitled to reject the goods.

33. The Tribunal notes that the applicant gave evidence that the awning had now failed because it became full of water in heavy rain. The Tribunal accepts the evidence of the respondents that the awning is designed to be retracted in heavy rain. The Tribunal is not satisfied that the replacement of the awning is the responsibility of the respondents in these circumstances.

34. The Tribunal will order that the applicant deliver the caravan to a repairer nominated by the respondents, within 250 km of the applicant’s current place of residence, at a time to be agreed between the parties. The respondents are to assess the corrosion of the chassis and leaf spring suspension and repair or replace those items as necessary. The respondents are to repair any deterioration in the shower recess silicone, address the leakage between the toilet and the washing machine, repair any cupboard doors which might be detaching, and assess and repair if necessary the roof around the air conditioning unit. The work is to be carried out in a proper and workmanlike manner within 1 month of delivery of the caravan to the nominated repairer.

35. If there is any difficulty in complying with these orders either party may, on or before 1 July 2018, renew this application.

Orders

1. Paul Becke is to deliver the caravan to a repairer nominated by the respondents, within 250 km of the applicant’s current place of residence, at a time to be agreed between the parties, and not later than 30 September 2017.

2. Caravans & Motorhomes Pty Ltd & Jayco Corporation Pty Ltd are, within 1 month of the delivery of the caravan pursuant to order 1, are to

1. assess the corrosion of the chassis and leaf spring suspension and repair or replace those items as necessary.

2. repair any deterioration in the shower recess silicone,

3. address and repair the leakage between the toilet and the washing machine,

4. repair any cupboard doors which might be detaching, and

1. assess and repair if necessary the roof around the air conditioning unit.

3. The work is to be carried out in a proper and workmanlike manner within 1 month of delivery of the caravan to the nominated repairer.

36. If there is any difficulty in complying with these orders either party may, on or before 1 July 2018, renew this application.

K Ross

Senior Member

Civil and Administrative Tribunal of NSW

7 July 2017

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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

Decision last updated: 06 September 2017