Ingold v Coastal Caravans Pty Ltd

[2016] NSWCATCD 12

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ingold v Coastal Caravans Pty Ltd [2016] NSWCATCD 12

Hearing dates:

9 December 2015

Date of orders:

09 December 2015

Decision date:

04 February 2016

Jurisdiction:

Consumer and Commercial Division

Before:

D Moss General Member

Decision:

On 9 December 2015 the following orders were made:

1.   Coastal Caravans Pty Ltd is to pay Greg Ingold the sum of $64,708.00 on or before 13 January 2016.
     

Reasons: Refund of money paid for caravan that was not of acceptable quality in accordance with the consumer guarantees contained in the Australian Consumer Law.

2.   When the order to pay money is complied with, Coastal Caravans Pty Ltd may collect the caravan from Branxton NSW, by arrangement with Greg Ingold, on or before 13 March 2016. Upon collection of the caravan, ownership of the caravan will pass to Coastal Caravans Pty Ltd.

3.   Greg Ingold is to provide Coastal Caravans Pty Ltd with a document transferring the registration of the caravan to Coastal Caravans Pty Ltd within 7 days of the collection of the caravan.

4.   If Orders 2 and 3 are not complied with, Coastal Caravans Pty Ltd is granted leave to renew the application by filing a notice to renew proceedings on or before 8 December 2016.

Catchwords:

Caravan; consumer guarantees; acceptable quality

Legislation Cited:

Australian Consumer Law, Fair Trading Act 1987

Category:

Principal judgment

Parties:

Greg Ingold (consumer - applicant)
Coastal Caravans Pty Ltd (supplier-respondent)

Representation:

The consumer appeared in person, unrepresented.
The supplier was represented by Mr Salce, who appeared by telephone.

File Number(s):

MV 15/48966

Publication restriction:

Nil

reasons for decision

Application

1. On 21 August 2015, the consumer filed an application seeking an order that the supplier fix or replace a faulty caravan to the approximate value of $64,708.00.

2. On 2 October 2015, the Tribunal made procedural directions for the filing and exchange of evidentiary documents prior to the hearing.

3. In his evidentiary documents the consumer stated:

“I believe that I am entitled to a replacement or a full refund plus costs of my caravan/trailer because it has major problems.

It has problems that would have stopped me from buying it if I’d known about it.

It is unsafe.

It is significantly different from the sample.

It doesn’t do what the business said it would, or what I asked for and can’t be easily fixed.

I also feel that the caravan/trailer was undersold, and caravan manufacturer has to make more of a profit, by using substandard workmanship & materials.”

4. At the hearing the consumer sought an order for a full refund, $64,708.00.

Jurisdiction

5. The NSW Civil and Administrative Tribunal, (“the Tribunal”), has jurisdiction to hear and determine an application by a consumer for determination of a consumer claim. A “consumer claim” means a claim by a consumer for a remedy, including the payment of a specified sum of money that arises from a supply of goods or services, by a supplier in the course of a business, to the consumer.

6. The consumer in this case purchased a new caravan from the supplier. The supplier sold the caravan to the consumer in the course of a business. The consumer seeks an order that the supplier pay him a specified sum of money, namely $64,708.00.

7. The contract to which the claim relates was made in New South Wales, at the 2015 Caravan and Camping Show held in Newcastle.

8. The claim arises from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988. The amount of the claim is within the monetary jurisdiction of the Tribunal that applies to such claims.

9. The Tribunal has jurisdiction to hear and determine this matter and to make the order sought by the consumer.

The consumer’s evidence

10. The consumer gave sworn evidence.

11. The consumer tendered the following documents:

1. Statement made by the consumer;

2. Phone call records;

3. E-mails;

4. Photographs of the caravan;

5. An affidavit of Rosslyn Oosterveen;

6. A report from Newcastle Caravan Repairs;

7. Costings;

8. Receipts;

9. Published representations made by the supplier;

10. Conclusions.

12. The consumer alleged that the caravan supplied to him was not of acceptable quality. The consumer sought a full refund of the purchase price, $64,708.00.

The supplier’s evidence

13. Mr Salce gave evidence by telephone on behalf of the supplier.

14. The supplier tendered the following documents:

1. Statement from Hunter RV Tech Pty Ltd;

2. Contract dated 8 February 2015;

3. Tax invoice;

4. Letter advising caravan was getting ready to be delivered;

5. Billabong caravan work order;

6. Plan of caravan.

15. Mr Salce gave evidence that the consumer was very happy with the van when he picked it up. The caravan was of acceptable quality and fit for purpose. When the consumer advised the supplier that repairs were required, the supplier arranged for the repairs to be done, (at no cost to the consumer), at Hunter RV. The consumer “repossessed” the van from Hunter RV before the repairs could be undertaken.

Findings of Fact

16. On 8 February 2015 the parties entered into a contract for the sale of a new Billabong caravan. The purchase price was $64,708.00

17. On 16 June 2015 the consumer took delivery of the caravan at One Stop Caravan Shop in Melbourne.

18. On 17 June 2015 the consumer noticed that the caravan was not registered and there were a number of issues regarding workmanship.

19. On 18 June 2015 the consumer telephoned One Stop Caravan Shop and spoke to Neil who said words to the effect of:

“The easiest thing to do would be for me to register the caravan and send the plate and rego papers up to you. Then you can take them to the RMS and transfer it over.”

20. The consumer telephoned a number of other persons about the caravan, including Dan from the supplier. Dan said that he would fix everything up.

21. On 24 June 2015 the consumer spoke to Dan from the supplier to see what was happening. Dan said he would chase it up. The consumer than rang Billabong Custom Caravans, (the manufacturer) and spoke to Joyce. Joyce said to take lots of photographs of the issues/defects and e-mail them to her.

22. On 28 June 2015 the consumer e-mailed Joyce from Billabong Custom Caravans a defect list and photographs of the caravan.

23. Also on 28 June 2015, the consumer sent the supplier an e-mail outlining his concerns about his unregistered, defective van. The e-mail included the following:

“There is a list of 35 defects, some small, some major which I can send to you if you wish.”

24. On 29 June 2015, the supplier sent the consumer an e-mail apologising for all that had happened with the purchase of the Billabong caravan. The supplier advised the consumer that Ian from Hunter RV would be “coming to get the van next week”. The van would be registered and all warranty issues would be checked. All problems would be fixed and the caravan would be returned to the consumer in a suitable condition. The caravan was subsequently collected from the consumer by Hunter RV Tech Pty Ltd and taken away on a tilt tray truck.

25. On 6 July 2015 the consumer sent Joyce from Billabong an e-mail with a list of the defects requiring rectification:

• Front boot leaking (left hand lower corner)

• Front boot drain, not sealed, or depressed enough to let water out

• 240 vlt outlet not sealed on both sides

• Spare wheel carry bracket leaning rearwards

• Rear bumper squashed at wheel carry bracket

• Rear bumper scratches and marks

• Water take (rear) hanging plate not welded to chassis

• Scratches and marks beside van door and hand rail

• Scratches and marks between 240 vlt outlet and window

• Scratches and marks between left front side and window

• Jockey wheel retaining block (clamps) black plastic end cap not flush

• Trail-A-Mate left hand side jack engagement hacked off

• 1000 kg max (Trail-A-Mate) jack supplied …..heavy duty one required

• Chassis reinforcement, only on one side

• Springs and axles …right hand rear spring different to left hand side

…rear axle right hand side is further forward than left hand

…front right hanging bracket welded in different position

• Flare wheel guard screw not screwed in straight

• Decal right hand side lifting and scratches

• Dents and marks rear roof on roll

• Shower hatch screws not flush

• Roof rippled in sheeting left hand side between A/C and side of van

• 4 season hutch requires resealing

• Left hand side wardrobe deep marks at side

• Bed head gouged out

• Left hand base storage (inside not fitting flush)

• Strip missing?? And marks in sheet lining about ensuite door

• Gap in joining strip above window, over table (strip not cut straight)

• Scratches and marks on ensuite sliding door (inside)

• Shower unit right hand top corner short sheet lining

• Most cupboard catches not straight to cupboard bottom style

• Most cupboard strut mounts not straight to side style

• Cupboard over sink laminate lifting (inside)

• Corner cupboard right hand side damaged

• Moulding (lining cover strip) above lounge broken

• Vanity bowl has imperfections on inside of bowl (the 3 other Billabong vans we saw didn’t)

• Under shower door/floor sealant

• 110 Amp hour batteries supplied x 2 (supposed to be 140 Amp hour batteries)??

26. On 10 July 2015 the consumer e-mailed the supplier and advised that he had been down to see Ian at Hunter RV to see how the repair work on his caravan was going. Ian was away and the consumer spoke to another man. He was informed that the caravan was at a storage facility at Morisset NSW.

27. The consumer went to the storage facility and saw his van exposed to the weather. There were bird droppings and bat droppings on the caravan. No repair work had been undertaken.

28. The consumer made a number of telephone calls to the manufacturer and the supplier without satisfaction.

29. On 14 July 2015 the consumer collected his caravan from the storage facility and lodged a complaint with NSW Fair Trading.

30. On 16 July 2015 the consumer registered the caravan.

31. On 29 July 2015 Fair Trading advised the consumer that Daniel Morgan, the supplier’s Service Manager, would arrange a meeting to address his concerns. Mr Morgan did not contact the consumer. No meeting was arranged.

Guarantee as to acceptable quality

32. Section 28 of the Fair Trading Act 1987 provides that the Australian Consumer Law applies as a law of this jurisdiction.

33. Section 54 of the Australian Consumer Law provides that, if a person supplies goods to a consumer, in trade and commerce, and the supply does not occur by way of sale by auction, there is a statutory guarantee that the goods are of acceptable quality.

34. Acceptable quality means that the goods are fit for all the purposes for which goods of that kind are commonly supplied; acceptable in appearance and finish; free from defects; and safe and durable. Whether goods are of acceptable quality is subject to a reasonableness test, that is, would a reasonable consumer who is fully acquainted with the state and the condition of the goods regard them as acceptable?

35. In deciding if goods are of acceptable quality, the Tribunal should take into account the nature of the goods; the price paid for the goods; any statement or representation made about the goods; and all other relevant circumstances.

36. The guarantee will not cover any defect that was specifically drawn to the consumer’s attention or any defect that was caused by the consumer failing to take reasonable steps to look after the goods.

37. Goods do not fail to be of acceptable quality if the consumer examines them and the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Was the caravan of acceptable quality?

38. The consumer provided a report from Bryan Clifton of Newcastle Caravan Repairs dated 20 October 2015. The report included the following:

“We have been asked to prepare a report for Mr and Mrs G Ingold, regarding the condition of their new Billabong Temptation caravan.

They have stated that they took possession of the brand new caravan in June 2015.

Upon arriving home with the caravan, and upon further inspection, a list of faults/defects have been found. This list is outlined in their letter dated 6th July 2015. (See paragraph 23 of this decision).

To rectify these issues it would be a major expense. For example, to fix the scratches on the door side of the van, the entire side has to be re-sheeted. Estimated cost for this is between $9,500.00 and $10,500.00.

The chassis has been cut and re-welded from new, this is not acceptable on a brand new caravan. The water tank brackets were not welded correctly which caused them to come loose.

These repairs are timely and a major inconvenience to the customer. Most repairers have a book in lead time between 3-4 months.

With all the faults/defects this caravan has, as well as the customer dissatisfaction with the quality and finish of the caravan, they haven’t received what they thought they were paying for. We believe the customer should be entitled to a full refund of their purchase price, or an equivalent replacement caravan.”

39. The consumer provided his own written statement outlining the problems he experienced with the caravan from the date of delivery; copies of relevant e-mails between the consumer, the supplier and the manufacturer; and photographs of the caravan, highlighting the defects.

40. The supplier provided a statement from Ian Avoledo of Hunter RV Tech Pty Ltd in the following terms:

“As organised by Billabong Caravans we picked up Mr Ingolds caravan on our tilt-tray truck as he would not tow his van to Morisset due to insurance issues with his unregistered van and was concerned that there was an issue with the suspension.

Mr Ingold had several issues to be dealt with as well as having his van registered in NSW at Coastal Caravans expense. When we had the van at our service centre we inspected the caravan and prepared a report and forwarded it to Billabong. We were then asked to quote on several issues that we reported on and once we had completed our report and forwarded onto Billabong we took Mr Ingolds van to our storage area at M1 Storage to wait for authority from Billabong Caravans to commence rectification of his issues.

Unknown to us Mr Ingold had presented himself at M1 Storage picked up his van and called passed letting us know that he had “helped himself” to picking up his caravan. It was not until he pulled up out the front of our service facility with his caravan on his car that we were aware of what he had done.”

41. The supplier did not provide the Tribunal with copies of the inspection report or the quote from Hunter RV Tech Pty Ltd mentioned in the above statement.

42. I accept the evidence of the consumer and the statement of Mr Clifton of Newcastle Caravan Repairs as being truthful and reliable.

43. Other than Mr Salce’s evidence that the consumer was “happy with the van when he picked it up” and his submission that the caravan was of acceptable quality and fit for purpose, there is no evidence from the supplier contradicting the consumer’s evidence or the statement provided by Mr Clifton. Significantly, the supplier did not provide the report or quote from Hunter RV Tech Pty Ltd, or from another independent expert, concerning the alleged defects with the caravan.

44. I am satisfied on the balance of probabilities that the caravan has a number of defects, as described in the consumer’s list of defects dated 6 July 2015 and the statement of Mr Clifton dated 20 October 2015.

45. Having carefully considered all of the evidence and the submissions, I am satisfied on the balance of probabilities that the caravan supplied to the consumer was not of acceptable quality. It was not acceptable in appearance and finish and was not free from defects. I am of the view that a reasonable consumer, fully acquainted with the state and condition of the caravan, would not regard it as being of acceptable quality.

46. In making this decision I have regard to all of the circumstances of the supply of the caravan, including, the nature of the goods, (a new caravan) and the price paid for the goods; $64,708.00. I accept the statement from Mr Clifton that the customer did not receive what they thought they were paying for.

47. There is no evidence that the consumer failed to take reasonable steps to look after the caravan or that the consumer caused any of the defects specified in the e-mails or in the statement of Mr Clifton.

Remedy

48. In accordance with Section 271 of the Australian Consumer Law, if the consumer guarantee as to acceptable quality is not complied with, and the failure to comply is major, the consumer will generally be entitled to their choice of a refund, repair or replacement product.

49. In accordance with Section 259(1)(b) of the Australian Consumer Law, a failure to comply with the consumer guarantee as to acceptable quality is considered major, if the goods would not have been acquired by a reasonable consumer, fully acquainted with the nature and extent of the failure.

50. I accept the statement of Mr Clifton that:

“To rectify these issues it would be a major expense. For example, to fix the scratches on the door side of the van, the entire side has to be re-sheeted.

Estimated cost for this is between $9,500 and $10,500.

The chassis has been cut and re-welded from new, this is not acceptable on a brand new caravan.”

51. The consumer stated that the caravan “has problems that would have stopped me from buying it if I’d known about it.” I am satisfied on the balance of probabilities that a reasonable consumer, fully acquainted with the nature and extent of the defects, (particularly the cutting and re-welding of the chassis and the significant scratches on the door-side), would not have acquired this caravan.

52. The consumer guarantee of acceptable quality has not been complied with in this case. The failure to comply is major. The cutting and re-welding of the chassis is not acceptable on a brand new caravan. The estimated cost of re-sheeting the door-side of the van is between $9,500.00 and $10,500.00, and may take 3 to 4 months.

53. The consumer is entitled to their choice of a refund, repair or replacement product. The consumer has chosen a refund.

54. The supplier and the manufacturer were given an opportunity to repair the defects by the consumer. The repairs were not undertaken in a timely manner and the caravan was not properly stored or reasonably looked after during this period.

55. Each party is to pay their own costs of the proceedings.

D Moss

General Member

Civil and Administrative Tribunal of New South Wales

4 February 2016

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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: 07 April 2016