Caruana v Market Direct Group Pty Ltd
[2024] QCAT 512
•22 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Caruana v Market Direct Group Pty Ltd [2024] QCAT 512
PARTIES:
LESLEY CARUANA (applicant)
DAVID CARUANA
(APPLICANT)
v
MARKET DIRECT GROUP PTY LTD (respondent)
APPLICATION NO/S:
MVL189-23
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
22 November 2024
HEARING DATE:
5 November 2024
HEARD AT:
Richlands
DECISION OF:
Member Jensen
ORDERS:
The application is dismissed.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether caravan of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to damages
Australian Consumer Law, s 54, s 259, s 260
Competition and Consumer Act 2010 (Cth), Schedule 2
FairTrading Act 1989 (Qld), s 50A, s 50C
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Mr Zammit
REASONS FOR DECISION
Issues
The issue for determination is whether the applicant is entitled to damages under the Australian Consumer Law (the ‘ACL’) with respect to alleged safety issues relating to an XT 16 HR Island Caravan (the ‘caravan’) purchased by the applicant from the respondent during May 2022. In particular, the issue is whether the respondent supplied a caravan to the applicant that was of acceptable quality as required by section 54(2) and (3) of the ACL.
The applicant’s claim is for $78,990 being the reimbursement of the purchase price of the caravan or in the alternative the sum of $10,000 costs incurred in rectifying problems with the caravan plus legal costs of $880 and compensation of $50,000 being the devalued value of the caravan for resale. The respondent rejects the claim and contends that the caravan is safe and fit for purpose.
The two applicants are Mr and Mrs Caruana. In these reasons, unless I refer to them by name, they will be referred to collectively as the applicant.
Jurisdiction
Pursuant to section 50A of the Fair Trading Act1989 (Qld), the Tribunal is vested with jurisdiction in relation to motor vehicles in respect of certain actions under the ACL. A motor vehicle is defined in section 12(1) of the Motor Dealers and Chattel Auctioneers Act2014 (Qld) to include a caravan. As a caravan is the subject of the application, I find that the Tribunal has jurisdiction to hear and determine the matter.
The respondent’s obligations
A pre-requisite of the ACL is that goods must have been acquired as a consumer. Pursuant to section 3(1)(b) of the ACL, a person is taken to have acquired goods as a consumer “if the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption.”
Section 54(1) of the ACL provides that where a person supplies goods in trade and commerce, the goods are guaranteed to be of acceptable quality. The time at which the goods are to be of acceptable quality is the time they are supplied to the consumer.[1]
[1]Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64].
Sections 54(2) and (3) of the ACL define acceptable quality as follows:
(2) Goods are of acceptable qualityif 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.
The evidence
The evidence is as follows:
(a)The applicant purchased and paid for the caravan over two instalments. The first payment on 29th April 2022 was a deposit of $3,000. The second payment on 11th May 2022 was for the balance purchase price of $75,990.
(b)The applicant took possession of the caravan from the respondent’s premises at 1711 Beaudesert Road, Rocklea on 20th May 2022. The applicant towed the caravan from the respondent’s premises to their home at 17-19 Ashwood Drive, Cedar Vale. The applicant towed the caravan using their daughter’s Nissan motor vehicle. Upon arrival at their home on 20th May 2022, the applicant parked the caravan in the garage where it remained until 28th June 2022.
(c)The applicant also purchased a Mitsubishi Triton motor vehicle (the ‘Triton’) which they took possession of on or about 27th May 2022 and which they also drove home on that date. The intention was to tow the caravan using the Triton on a trip which they had planned.
(d)On 28th June 2022, the applicant towed the caravan for the first time using the Triton. The plan was to drive to the Sunshine Coast. As the applicant was driving along the gateway extension, they noticed what they called a sway in the caravan which began from speeds of 80-90 kilometres per hour. Mr Caruana brought the Triton and caravan to a standstill. Mrs Caruana describes what happened as follows:
Our first trip was to Noosa and half an hour after leaving home on the gateway motorway the caravan began to sway which was a very scary experience and one we have not experienced before. We were very lucky that my husband David was experienced and was able to slow both car and the caravan before it tipped over.
(e)Once stopped, Mr Caruana telephoned Mr Zammit at the office. Mr Zammit is the customer advocate for the Respondent. Mr Caruana’s evidence is that the respondent was very helpful and that he was already aware of the incident.[2]
[2]Mr Zammit in his evidence denies that he was aware of the incident prior to the phone call.
(f)Mr Zammit and Mr Caruana had a conversation over the telephone about what might be the cause of any sway including discussing the tyre pressure, weight distributions, and whether the water tanks were full.
(g)The applicant continued their trip to Noosa where they arrived on 28th June 2022. No incident was reported in this remaining part of the trip.
(h)Mr Caruana then drove from Noosa to Caboolture to purchase a second-hand anti sway bar and returned to Noosa to install it in the caravan.
(i)On 2nd July 2022, the applicant towed the caravan to Doonan where it was weighed, and it was confirmed that it was within specifications and compliance requirements. The applicant then continued home where they arrived the same day travelling at low speed. It is the applicant’s case that the sway starts at high speeds from about 80 to 90 kilometres per hour and that there is no sway at lower speeds.
(j)On or about 3rd July the applicant towed the caravan to the respondent’s premises at Coopers Plains for further investigation and for tow testing. The instrument testing showed that the caravan was compliant, and the tow testing of the caravan did not reveal any clear circumstances of sway. In one tow test the caravan was towed by a Nissan Navara which was the respondent’s vehicle, and the evidence is that it did not show any sway. Mr Clifford who works for the respondent said that he drove up to speeds of 115 kilometres per hour with no roll or sway. The parties conducted a second tow test on this date, this time using the Triton. Mr Caruana said in evidence that at speeds of about 85 kilometres per hour the caravan was “rolling a bit” when towed by the Triton.
(k)Neither of the above road trials were taped or recorded on video.
(l)On 1st August 2022 the applicant took the Triton motor vehicle for inspection and decided to do a suspension upgrade to the rear of the vehicle. Mr Caruana’s evidence is that this was done to improve performance.
(m)On 2nd September 2022 the caravan was tow tested again. This time the respondent filmed the tow test road from a trailing vehicle using a GoPro. In all cases the caravan was towed by one of the respondent’s vehicles being a Nissan Navara motor vehicle. There were three videos that were showing this trial of the caravan being towed by a Navara. There was also a tow test where the caravan was being towed by a Land Cruiser, but this was not filmed, and I do not place any weight on that trial that was not filmed.
(n)In all of the three tow tests that were video recorded on 2nd September 2022, according to the evidence of Mr Clifford, who drove the Navara tow vehicle, the caravan travelled at speeds between 60 to 100 kilometres per hour and there was no sway, and the caravan performed well. The video evidence was recorded by a representative of the respondent and handed to the applicant on a USB stick. The applicant challenged the video evidence on one point. The sole sticking point was that they do not trust the videos because the speed of the tow test was not recorded on the video itself, and the only indication of speed was guesswork having reference to passing speed signs. The applicant suggested that the caravan was travelling at lower speeds (at which the caravan performed). Mr Caruana said in evidence to the effect that “although there were speed signs on the side of the road, you could not tell from the video that the vehicle was driving at or below those speeds”. In short, the applicant was suspicious that the caravan was travelling at speeds lower than the speed signs because at lower speeds Mr Caruana’s evidence is the caravan performs and does not sway.
(o)On 6th October 2022, the applicant towed the caravan to Toowoomba where it underwent an inspection. The results of the inspection showed that the caravan was compliant with the specifications and that there was no overloading of the caravan. Mr Caruana says that the point of this inspection was to show that he was doing everything possible to show that the caravan was compliant at all times.
(p)On 6th November 2022, the applicant called on a “truckologist” to visit their home where a wheel alignment of the caravan was carried out. The wheels were out of alignment, but Mr Zammit for the respondent said that this misalignment would only cause tyre wear and that it would have no effect on the handling of the caravan nor would it cause sway. The applicant did not challenge this evidence.
(q)The applicant also took the caravan to Queensland Caravan Centre for observation. The evidence of Mr Zammit is that he was told by the representatives of the Queensland Caravan Centre that:
The inspection found no fault with the caravan, and it was suggested by Ben that the tow vehicle capability appeared to be the issue, and the aspect of the vehicle suggested that inadequate front axle load could be a contributor to the alleged issue.
(r)Mr Caruana’s evidence is that the representative said to him that “it appears you have done everything right.” It is at this time that the applicant switched the tyres to ones more designed for highway travel rather than hybrid off road/on road.
(s)It was also agreed in evidence that the applicant towed the caravan on a road trip to Bathurst, New South Wales, in mid-February 2024. Mr Caruana said he only travelled at about 80 kilometres per hour during this trip.
Consideration
I find that a caravan is goods of a kind ordinarily acquired for personal, domestic or household use or consumption and that the applicant is a consumer for the purposes of the ACL.
I find that the applicant has failed to establish that the caravan was not of acceptable quality in breach of section 54(1) for the reasons that follow.
(a)First, the applicant’s evidence of the caravan sway is given by both Mr and Mrs Caruana. They provide evidence of their firsthand experiences of sway (the incident on 28 June 2022) when the caravan was towed by their Triton and contend that there must be a safety problem with the caravan when towed at speeds above 80 kph. I am satisfied that Mr and Mrs Caruana gave their evidence in an honest manner. They should be commended for the attention paid in maintaining the caravan so that it was compliant with the requirements for its use. An example of this is the testing done in Toowoomba.
(b)However, I place more weight on the evidence of Mr Clifford who was involved in both of the tow testing dates. I found his evidence to be both reliable and credible regarding the speeds at which the caravan was travelling without sway. In making this finding, I have taken into account the fact that Mr Clifford is an employee of the respondent.
(c)Second, the video recordings of the tow tests on 2nd September 2022 did not reveal any sway of the caravan when towed by the Navara. The applicant contends that the video cannot be trusted for the speed at which the caravan was towed. However, Mr Clifford gave evidence that he was driving at speeds of up to 100 kph in the tow vehicle and on my viewing of the videos I infer from the roadside speed signs, the lanes in which the caravan travelled from time to time and the speeds of other vehicles that the caravan travelled at speeds of up to 100 kph for reasonable periods of time while being tested. I therefore find that the video recordings show the caravan travelling at speeds of 100kph for reasonable periods of time without sway. Furthermore, no sway was apparent when watching the videos of the tow tests during the hearing.
(d)Third, although there is evidence from the applicant of sway when travelling at higher speeds, I do not find this evidence strong enough to outweigh:
(i) Mr Clifford’s evidence;
(ii) the tow testing that was carried out on separate occasions; or
(iii) the evidence of the Queensland Caravan Centre that found no fault with the caravan.
(e)Finally, the agreed evidence of the applicant’s road trip to Bathurst earlier this year towing the caravan demonstrates to me that the applicant was satisfied that the caravan was sufficiently safe to tow on this trip.
Order
The application is dismissed.
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