Kinsella v Melonie Investments Pty Ltd
[2013] FMCA 230
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINSELLA v MELONIE INVESTMENTS PTY LTD | [2013] FMCA 230 |
| CONSUMER LAW – Misleading and deceptive conduct – whether goods fit for purpose – whether goods of acceptable quality – customised fit-out of bus. |
| Australian Consumer Law ss.18, 29(1), 54, 55, 236, 259, 261 Competition and Consumer Act 2010 (Cth), s.4(1), Schedule 2 Evidence Act 1995 (Cth), s.59(1) Federal Magistrates Act 1999 (Cth), s.64(6) |
| Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7 Deputy Commissioner of Taxation v Barnes & Anor (No.2) [2008] FMCA 1229 |
| Applicant: | LEIGH MAY KINSELLA |
| Respondent: | MELONIE INVESTMENTS PTY LTD |
| File Number: | PEG 157 of 2011 |
| Judgment of: | Lucev FM |
| Hearing dates: | 3-4 July 2012 |
| Date of Last Submission: | 4 July 2012 |
| Delivered at: | Perth |
| Delivered on: | 9 April 2013 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms J Pivac |
| Solicitors for the Respondent: | GG Legal |
ORDERS
That the Applicant’s Application in a Case filed on 6 July 2011 be dismissed.
That the Respondent’s Application in a Case filed on 6 March 2012 be dismissed.
That there be judgment for the applicant in the sum of $860, but otherwise the Application filed 20 June 2011, as amended on 13 July 2011, further amended on 31 October 2011, and further amended on 28 November 2011, be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 157 of 2011
| LEIGH MAY KINSELLA |
Applicant
And
| MELONIE INVESTMENTS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a retired school teacher who bought a second-hand Toyota Coaster bus (“Bus”) in which she planned to go travelling in her retirement. The respondent is a company which customises buses and camper vans for touring purposes. At the applicant’s request the respondent undertook to customise the applicant’s Bus. The applicant was not happy with the customisation of the Bus, and now brings proceedings in this Court under the Australian Consumer Law (“ACL”). The ACL is Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“CC Act”), as applied under Subdivision A of Division 2 of Part XI of the CC Act: CC Act, s.4(1), definition of “Australian Consumer Law”.
Application, Response and Applications in a Case
The application, filed on 20 June 2011, has been amended and further amended, and in its final manifestation is the Second Further Amended Application filed 28 November 2011 (“Application”).
In a detailed statement of chronology, material facts, causes of action and remedies filed on 29 March 2012 the applicant detailed the remedies sought by her as follows:
a)pursuant to ss.259(2) and 261 of the ACL, orders that the respondent:
i)supply and fit two new batteries comparable to the batteries that were installed;
ii)remove the unsealed batteries from the Bus;
iii)supply and fit another solar panel comparable to the one that was initially installed;
iv)re-wire the plasmatronic unit to prevailing safety standards;
v)remove pumps from cushions and replace cushions;
vi)fix the shower hose to a reasonable standard;
vii)fix the shower door to a reasonable standard;
viii)fix the water hose to a reasonable standard;
ix)fix the elbow joint of the outlet pipe to a reasonable standard;
x)fix the sink tap to a reasonable standard;
xi)grease the slide-out barbeque set to a reasonable standard;
xii)provide and deliver up all manuals and serial numbers for all appliances supplied to the applicant; and
xiii)repair the power supply, gas and plumbing of the Bus generally, and complete the fit out, to an acceptable standard;
b)alternatively, orders for damages under ss.236 and 259(4) of the ACL sufficient to compensate the applicant for:
i)the costs of engaging a suitably qualified person to fix the defects pleaded in subparagraph (a);
ii)the costs and expenses she has incurred due to the breaches by the respondent and its employees;
iii)the inconvenience of not having the vehicle, hardship and emotional distress suffered by the applicant from December 2010 to the present;
iv)the health risks associated with the gas bottle and the unsealed battery; and
v)the loss of income as a relief teacher, estimated at $600 per day (or $104,000 per year);
c)further orders for:
i)costs;
ii)such other orders as the Court sees fit.
By an Amended Response filed on 13 April 2012 the respondent sought that the Application be dismissed and that the applicant pay the respondent’s costs. Grounds of opposition were set out, as follows:
1.The Applicant having filed and served all documents for trial has failed to substantiate a proper claim or any claim at all and the Respondent further notes:
a.At no time did the Respondent engage in false or misleading and deceptive conduct or make any false, misleading or deceptive representation;
b.That the Goods were of acceptable quality; and
c.That the goods supplied were fit for the Applicant’s purpose.
2.The Applicant has not allowed the Respondent to rectify any alleged defects and has further contaminated the evidence of any alleged defects by allowing other individuals or entities to work on the Bus.
The applicant filed an application in a case on 6 July 2011 seeking that the application be treated as a matter of urgency (“Applicant’s Application in a Case”). The Applicant’s Application in a Case was overtaken by events, including orders made a week later on 13 July 2011 that the matter be referred for mediation before a Registrar of the Court as a matter of urgency. There have been no further orders with respect to the Applicant’s Application in a Case since that time. There were subsequent general orders made on 4 November 2011, including liberty to apply in respect of further mediation to be undertaken before 30 June 2012.
The respondent also filed an application in a case (“Respondent’s Application in a Case”) on 6 March 2012 seeking dismissal of the Application and that the applicant pay the respondent’s costs. The Respondent’s Application in a Case came on for hearing on 16 March 2012. At that time the Court made various orders with respect to the future programming of the matter, including granting liberty to apply to relist it on three days’ notice, but did not dismiss the Respondent’s Application in a Case. There have been no further orders with respect to the Respondent’s Application in a Case since that time.
Given that both the Applicant’s Application in a Case and the Respondent’s Application in a Case have been overtaken by subsequent events, including mediation and the hearing of the matter, there should be formal orders that each of the Applicant’s Application in a Case and the Respondent’s Application in a Case be dismissed.
False or misleading representations or misleading or deceptive conduct
Section 18 of the ACL provides as follows:
(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).
Section 29(1) of the ACL provides as follows:
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:
(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
…
(g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or
…
(l) make a false or misleading representation concerning the need for any goods or services; or
…
The applicant alleges that there were a number of false or misleading representations made to her under s.29(1)(a), (g) and (l) of the ACL, alternatively that the same conduct was misleading or deceptive conduct under s.18 of the ACL. Each of the representations or conduct is set out hereunder.
First, it is asserted that the respondent and its employee Mr Vitasovic represented that the Bus would have sufficient power for four to five days, and that that was a false or misleading representation under s.29(1)(a) of the ACL, alternatively, it was misleading or deceptive conduct under s.18 of the ACL.
Second, it is asserted that the respondent and its employee Mr Vitasovic, did not inform the applicant that the televisions, the computer, the refrigerator, any other electrical appliance, the lights, the water pump, the gas stove, the gas water heater, the water pumps for the toilet and shower, would also be using battery power, which was a false or misleading representation under s.29(1)(a) of the ACL, alternatively misleading or deceptive conduct under s.18 of the ACL.
Third, represented that the bus would have sufficient power for four or five days even if the applicant utilised the power point outlet, which was a false or misleading representation under s.29(1)(a) of the ACL, alternatively misleading or deceptive conduct under s.18 of the ACL.
Fourth, that representations as to how the battery monitor should be utilised were false or misleading representations under s.29(1)(a) of the ACL, alternatively misleading or deceptive conduct under s.18 of the ACL.
Fifth, that the representation that the unsealed battery is safe for use in the Bus or any enclosed environment was a false or misleading representation under s.29(1)(a) of the ACL, alternatively misleading or deceptive conduct under s.18 of the ACL.
Sixth, that the representation that the two batteries were wired up properly, was a false or misleading representation under s.29(1)(a) of the ACL, or in the alternative, misleading or deceptive conduct under s.18 of the ACL.
Seventh, that the representation that the single solar panel was more efficient, and more powerful, than the two requested by the applicant, was a false or misleading representation under s.29(1)(a), (g) and (l) of the ACL, alternatively misleading or deceptive conduct under s.18 of the ACL.
Goods of unacceptable quality or not fit for purpose
Section 54 of the ACL provides as follows:
(1) If:
(a) a person supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are of acceptable quality.
(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.
(4) If:
(a) goods supplied to a consumer are not of acceptable quality; and
(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;
the goods are taken to be of acceptable quality.
(5) If:
(a) goods are displayed for sale or hire; and
(b) the goods would not be of acceptable quality if they were supplied to a consumer;
the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.
(6) Goods do not fail to be of acceptable quality if:
(a) the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and
(b) they are damaged by abnormal use.
(7) Goods do not fail to be of acceptable quality if:
(a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and
(b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
Section 55 of the ACL provides as follows:
(1) If:
(a) a person (the supplier ) supplies, in trade or commerce, goods to a consumer; and
(b) the supply does not occur by way of sale by auction;
there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
The applicant asserts that the respondent and its employee, Mr Vitasovic, were aware of and understood the applicant’s purpose of customising the Bus, and the requirements specified.
The applicant says that the following goods supplied by the respondent and its employee, Mr Vitasovic, were either not of acceptable quality under s.54(1) of the ACL or not fit for purpose under s.55(1) of the ACL:
a)the two batteries;
b)the shower hose;
c)the shower door;
d)the shower access;
e)the water hose;
f)the elbow joint of the outlet pipe;
g)the sink tap;
h)the plasmatronic unit;
i)the LED lights; and
j)the slide-out barbeque set.
Evidence – credibility
The applicant’s credibility was affected by the fact that, to a reasonably significant degree, the applicant’s evidence was, in the Court’s view, inconsistent, particularly in respect of significant matters, such as the independent power source and gas appliances matters, referred to below. The applicant’s evidence about other matters, and in particular those matters related to whether or not the goods were of acceptable quality or fit for purpose was, in some respects, vague as to precisely what the nature and extent of the alleged lack of quality or unfitness for purpose actually was.
The primary evidence from the respondent, given by Mr Vitasovic, also suffered from some inconsistencies, but overall was far more consistent than that of the applicant. Mr Vitasovic was also consistent and understandable in relation to his evidence about those issues associated with fitness for purpose and quality of the goods concerned. By and large, Mr Vitasovic’s evidence was also supported by the applicant’s expert witness, and also the respondent’s expert witness.
In the above circumstances, to the extent that there have been any differences between the accounts of various events as between the applicant and Mr Vitasovic, the Court has generally preferred Mr Vitasovic’s evidence, and has usually preferred the evidence of the experts to that of both the applicant and Mr Vitasovic where their evidence conflicts.
In relation to credit (as opposed to credibility) the Court considers that both the applicant and Mr Vitasovic did endeavour to truthfully inform the Court, to the best of their abilities, as to their recollections of events.
Evidence – applicant’s expert – admissibility and weight
In relation to the expert evidence, the applicant’s expert evidence, in the form of the affidavit of Glen Anthony White, sworn 19 June 2012, was admitted pursuant to the provisions of s.64(6) of the Federal Magistrates Act 1999 (Cth), which permits the Court to give the matters in the affidavit such weight as the Court thinks fit in circumstances where the deponent does not appear as a witness to be cross-examined with respect to the matters in the affidavit.
In Deputy Commissioner of Taxation v Barnes & Anor (No. 2) [2008] FMCA 1229 at para.38 per Lucev FM (“Barnes (No. 2)”) this Court observed that:
38. In circumstances where:
a) the respondents have been requested to attend for cross-examination;
b) the respondents have not attended;
c) no efforts have been made by the respondents to attend by video link or telephone link in circumstances where the ability to do so will usually be afforded to remote witnesses by this Court;
d) there were matters upon which the respondents might have been cross-examined;
e) ordinarily the respondents’ failure to attend for cross-examination would mean that the affidavits would not be admissible in evidence (subject to any relevant Court rules); and
f) the respondents’ conduct has been such (both in relation to attendance for cross-examination, and generally) as to preclude any indulgences being granted to them, or any prejudice being suffered by the applicant on account of that conduct,
the Court is of the view that no weight ought to be given to the respondents’ affidavits. This view will not preclude weight being given to either of the affidavits if there are future proceedings, if either of the respondents submit to cross-examination in any such proceedings.
The circumstances in Barnes (No. 2) were significantly different to those in this case. Barnes (No. 2) involved creditors petitions in this Court’s bankruptcy jurisdiction taken out by the Deputy Commissioner of Taxation for sums of allegedly unpaid tax significantly in excess of $3m for each of Mr and Mrs Barnes. Mr and Mrs Barnes were sophisticated investors and legally represented litigants, whom the Court had previously found had committed an act of bankruptcy by, amongst other things, leaving Australia with intent to defeat their creditors (including the Deputy Commissioner of Taxation): see Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776 at 782-783 per Lucev FM; [2008] FMCA 7 at paras.50-51 per Lucev FM.
In this case, the applicant is self-represented, although she did have some pro bono assistance prior to hearing from a major commercial law firm. The applicant appears to have generally endeavoured to assist with the proper conduct of the litigation, and has cooperated with the Court in the proper conduct of the litigation, throughout. The applicant’s expert, Mr White is a small business person who was simply not able to attend on the second day of the hearing. In this regard, no endeavours were made to facilitate an alternative means of appearance, but for reasons which follow that is not generally of concern to the Court in the circumstances of this case. To the extent that the evidence of both “experts” might be characterised as expert evidence, Mr White’s expert evidence was more comprehensive than that of the respondent’s expert (see the affidavit of Doug Logan, sworn 3 May 2012), and in that regard of greater assistance to the Court. Significantly, the applicant’s expert evidence was unfavourable to the applicant when viewed overall, and, significantly so in some respects. The applicant’s expert evidence on affidavit was, on many disputed matters, to the same effect as the respondent’s expert’s affidavit evidence, and oral evidence.
In all of the above circumstances the Court has determined that the affidavit of Mr White, in addition to being admitted, as it was at hearing, ought to be given appropriate weight and effect, having regard to all of the other evidence, and, where appropriate, the inability to cross-examine Mr White.
Evidence – other
There was evidence given by Mr Butt, an auto electrician who ordinarily does work for the respondent, but who inspected the Bus at the applicant’s request, and who was paid by the applicant for that inspection. There is no reason to doubt any of Mr Butt’s evidence.
Consideration
General
The applicant, Leigh May Kinsella, is a retired school teacher. In her retirement she planned to travel, and to engage in relief teaching, particularly in remote areas. It was to facilitate these purposes that the Bus was being customised by the applicant.
The respondent, Melonie Investments Pty Ltd, is an Australian corporation which, trading as Dove Campers, specialised in the customisation of buses and camper vans for touring purposes. Mr Vitasovic, a director of the respondent, dealt primarily with the applicant. Mr Vitasovic has over 25 years experience in the industry.
April 2010
In April 2010 the applicant approached Mr Vitasovic for an estimate of the cost of customising the Bus. The applicant asserts that she specified that she wanted the following in the Bus:
a)a bed;
b)air-conditioning;
c)a shower;
d)a toilet; and
e)“the usual fittings”, which the applicant understood to include an antennae for a television set and a cooking range or fan.
The applicant says that she also specified to Mr Vitasovic that:
a)she did not want any gas appliances;
b)she would have a generator as back-up power;
c)she needed power to stay out of caravan parks for four to five days; and
d)she wanted two solar panels to provide independent power for two or three days.
The applicant asserts that Mr Vitasovic provided an estimate of $42,000 for the above requirements (“April 2010 Estimate”).
October-November 2010
30 October 2010 email
Nothing occurred in relation to the April 2010 Estimate until October 2010 when the applicant sent the respondent an email indicating that she had purchased the Bus. The applicant went on as follows:
I am hoping that you could send me some floor plans to choose from.
I am still in the Kimberley so my son and/or daughter will be acting on my behalf until I get back to Perth.
I would like to have a toilet and separate shower. I would need water tanks and my plan is to eventually use mainly solar power and a generator so I don’t need to stay in caravan parks all the time.
Can you let me know if you are able to fit the bus out for me.
Give me a timeframe and a quote.
(“30 October 2010 Email”).
There is no indication in the 30 October 2010 Email that any reliance is placed upon what occurred in April 2010.
13 November 2010 – the plan
On 13 November 2010 the respondent provided a plan to the applicant for customising the Bus, and quoted $48,900 for completion (“Mr Vidasovic’s 5 July 2012 Affidavit, Annexure DOV 4”) (“the Plan”). The applicant subsequently paid $49,000 in three instalments on 15 November 2010 ($15,000), 16 November 2010 ($14,000) and on 23 December 2010 ($20,000), the latter date being the day upon which the applicant collected the Bus.
The applicant says that as the quote was $7,000 above the original estimate she assumed that the increase was due to having to meet all of the requirements outlined in the discussion between the applicant and Mr Vitasovic in April 2010. The applicant says that she noted that the Plan provided by the respondent did not include any gas appliances or a slide-out barbeque gas set.
There is therefore a dispute as to what plan was sent to the applicant. The applicant says that the Plan was not the plan sent to her, but that she has not kept, nor has she been able to retrieve the plan that she says was sent to her, which she says was “similar” to the plan forwarded to her: see Transcript, 3 July 2012, pages 19 and 39. The applicant says in particular that the Plan was not the plan sent to her because the plan sent to her did not refer to any gas appliances, whereas the Plan, in a box headed “CONVERSION COST”, says it includes “GLASS TOP SINK WITH A GAS STOVE”.
The applicant asserted that she “made it clear what I wanted”: Transcript, 3 July 2012, page 51. It is, however, clear that she did not discuss in any detail numerous items which were required in the Bus, including the type of fridge, stove, and the air-conditioning, and she also did not discuss items which appear on the Plan including the slide-out barbeque bench and the awning. Other items not discussed included the type of curtains and floor vinyl to go into the Bus: Transcript, 3 July 2012, pages 36-37. Cross-examined as to whether she knew what she was paying for, the applicant said “… at that stage, I had absolutely no idea …”: Transcript, 3 July 2012, page 36.
The Plan was modelled on a plan for a similar camper bus (“Other Bus”) that the applicant had looked at on the respondent’s website, and she agreed, and it is not seriously in dispute, that she asked for a customisation similar to the customisation of the Other Bus, with one or two significant exceptions. One of those was that the applicant did not want a second fridge. She did not get a second fridge, and that is not in dispute. The applicant however alleges that she did not ask for, or want, gas appliances in the Bus. The gas appliances issue is a serious matter of dispute which is dealt with below.
The applicant’s attitude towards the question of a fridge is instructive. As indicated above, she said that she had seen, on the website, the fridge on the recently completed customisation of the Other Bus. The applicant conceded that she did not know what type of fridge was in the Other Bus, and that she agreed to the customisation without ever knowing what type of fridge was being included, and that she had not checked on the internet to see what type of fridge it was: Transcript, 3 July 2012, page 20. Ultimately, she said that she “didn’t really care what sort of fridge and freezer it was, as long as I had a fridge and freezer”: Transcript, 3 July 2012, page 42.
Gas appliances
With respect to the issue of gas appliances the applicant said that she said she did not want gas appliances, and says that had she seen that there were gas appliances on the Plan she would have rung the respondent and said that she did not want them. She says that the plan that was sent to her did not contain reference to gas appliances. The applicant also says that she told Mr Vitasovic that she did not want any gas appliances, but did not put this in writing, even though it was important, and she denies having received the Plan which included reference to the “GAS STOVE”: see Transcript, 3 July 2012, pages 35, 41 and 42, and 4 July 2012, pages 64 and 65.
The applicant says that she did not realise the Bus had gas appliances until she got home after taking delivery of the Bus when she realised that it had a gas stove. She says that she was “really, really very upset about that”: Transcript, 4 July 2012, page 64. She also says that her son told her not to worry, and because everything else was “perfect” she took the issue of the gas appliances no further.
Given that the applicant did not want gas appliances, and was “really, really very upset” about the fact that there were gas appliances it is puzzling that the applicant mounted no challenge whatsoever, and did not even mention to, or query with, the respondent, the installation of gas appliances.
Mr Vitasovic’s evidence was that there was no request by the applicant for there not to be gas appliances in the Bus.
Mr Vitasovic gave evidence that had he been told that the applicant wanted to have electric hotplates and an electric barbeque, in combination with her desire to stay off road or out of caravan parks for periods of up to four to five days, he would have told her that that was absurd: Transcript, 4 July 2012, page 87. Also, Mr Vitasovic was not cross-examined on the notation in the Plan that the customisation included a “GAS STOVE”. Nor was he cross-examined about there being another plan, without reference to gas appliances, being sent to the applicant.
In all the circumstances, the Court accepts Mr Vitasovic’s evidence, and is persuaded, on the evidence, that the respondent did send the Plan, with the reference to a “GAS STOVE” to the applicant. The applicant was unable to produce any other plan sent to her, or any evidence (apart from her say so) that another plan was sent to her. In coming to the conclusion that the Plan was sent to her the Court accepts that Mr Vitasovic, a man with considerable experience in conversions and customisations of this type, would have told the applicant of the absurdity of any proposition that she run electric appliances rather than gas appliances if she intended to stay off road for a considerable period of time. Furthermore, the applicant’s conduct in simply accepting the fact that there were gas appliances in the Bus following the conversion also tends to indicate that the applicant did not specifically request non-gas appliances, or, at the very least, that she had no issue with the fact that gas appliances were installed in the conversion, consistent with the Plan. In the Court’s view there were no representations made by the respondent, or by Mr Vitasovic, and no conduct by the respondent, or Mr Vitasovic, which could, reasonably or otherwise, have led the applicant to believe that there would be no gas appliances in the Bus.
Independent power
Looming large in the applicant’s case was the concept of “independent power” to the Bus, and how the so called “independent power” was to be provided. It is fair to observe that the parties were at odds with respect to what constituted independent power.
The applicant claims that she told Mr Vitasovic, on a number of occasions, that she wanted independent power, and that in particular she wanted to have independent power which operated for two to three days off the batteries in the Bus, extended to three to four days with two solar panels, and to four to five days with a back-up generator. The applicant said that this was what she meant when she was referring to independent power sources: Transcript, 3 July 2012, pages 20, 22, 38, 40 and 43.
The applicant also said that she expected to be able to run the fridge for two to three days if the batteries were fully charged: Transcript, 3 July 2012, page 26.
At no stage did the applicant confirm with Mr Vitasovic, or anyone from the respondent, what “independent power” meant to the respondent. Rather, the applicant “assumed” that “independent power” meant the same thing to Mr Vitasovic as it meant to her. When asked to define independent power the applicant said, in cross-examination “the batteries”: Transcript, 3 July 2012, page 22, and later confirmed again under cross-examination that “batteries alone” were “the same as independent power”: Transcript, 3 July 2012, page 43.
As highlighted above, even the applicant seemed to indicate that independent power might mean the batteries alone, or a combination of the batteries, solar power and a back-up generator. In the 30 October 2010 Email the applicant indicated that it was her “plan…to eventually use mainly solar power and a generator so I don’t need to stay in caravan parks all the time.”: Mr Vitasovic’s 5 July 2011 Affidavit, Annexure DOV2. The 30 October 2011 Email contains no reference to the utilisation of batteries, or the utilisation of batteries to run the power system in the Bus exclusively for the first day or two. Further, the 30 October 2010 Email does not refer to the use of the generator as “back-up”, as was later asserted by the applicant to be her intention with respect to the use of a generator: Transcript, 3 July 2012, pages 39 and 49.
The installation of a generator was not part of the contract between the applicant and the respondent for the customisation of the Bus: Transcript, 4 July 2012, page 67. Rather, it was installed as a so-called “cash job” (the concept of which was not further explored in the hearing) over Easter in 2011, and was organised by the applicant independently of the respondent.
Mr Vitasovic said that the applicant’s initial instruction was that she was going to tow a generator, which he advised against: Transcript, 4 July 2012, page 82. There is no dispute that the applicant ultimately said that she would have a generator for “back-up” power. Mr Vitasovic conceded this in cross-examination: Transcript, 4 July 2012, page 83.
Mr Vitasovic confirmed that he had relied on the use of the generator by the applicant for the supply of power to enable the applicant to stay off road or out of caravan parks for four to five days, as that was consistent with the instructions he had been given by the applicant. It was also consistent with the fact that she needed to run an air-conditioner and a microwave off road, together with a television and a computer. Mr Vitasovic indicated that it would have been absurd to try to run all of these things solely off battery power, and had the applicant indicated that that was her intention, he would have told her so: Transcript, 4 July 2012, page 87. Mr Vitasovic was unconcerned with the overall power requirements because the applicant indicated that there would be a back-up generator: Mr Vitasovic’s 5 July 2011 Affidavit, para.8, and that this would provide her with the power required to remain off road or out of caravan parks for four to five days.
It is clear that what the applicant considered to be “independent power” was not clear in her own mind. Sometimes it was battery power alone. At other times the applicant described “independent power” in terms of a combination of battery, solar and back-up generator power. If her 30 October 2010 Email was intended to be indicative of what constituted “independent power” it then did not specifically include battery power. What is clear is that the applicant wanted a system which, at its broadest, would enable her to remain off road or out of caravan parks for four to five days running the Bus under power generated from sources on the Bus. Ultimately, that is what the applicant obtained, when, independently, she arranged for the generator to be installed, four months after she took delivery of the Bus. The respondent customised the Bus knowing that the applicant intended to install back-up generator power. The respondent therefore knew that the Bus would provide for up to four to five days power once the generator was installed, as had always been planned by the applicant, and known by the respondent.
That the power supply was adequate, and what was agreed upon between the parties, is clear from subsequent admissions with respect to the power supply in the Bus and the installation of a generator, made by the applicant as follows:
a)in a letter dated 25 May 2011 to the respondent (that is, less than a month before these proceedings were instituted) the applicant indicated that:
I went down south for 4 weeks and apart from 5 days in caravan parks the power supply was all that I had anticipated;
b)further, in the letter of 25 May 2011 the applicant indicated that:
My intention was always to reduce the cost of staying in caravan parks and I realised that a generator was going to be necessary although I did not realise the cost involved because of the air conditioner.
I also did not realise that the solar panel may only run my refrigerator for maybe two days;
and
c)in an email a day later than the above letter the applicant said as follows:
I don’t have a problem with using the generator, it is still a lot cheaper than having to stay in a caravan park, I just wish I had been aware that the fridge would defrost when the generator reached 22.8 as you have advised, or 24 volts as I was told by WA Solar.
Either way I am now aware of what I need to do and am quite happy to do it.
You are right, I always had intended to get a generator but I didn’t expect it to have to be so large or so expensive to buy and install. Nor did I expect further expense because of the weight on the back of the bus.
I intend to have the bus for a very long time and although I was not expecting these expenses I understand that if I want the bus to be safe and large enough to run the air conditioner, then these expenses have been necessary.
I did not intend to infer that these expenses were in any way decisions that were influenced by you.
They have been my decisions as to what, long term, would be in my best interests.
How I use my computer or TV will obviously depend on what voltage I have in the batteies [sic – batteries], while being aware of the fridge cut out point, and whether I have been driving and the weather conditions. I am confident that I can do that.
What I would like and what I can have will obviously depend on the fridge cut out point.
I can live with that.
See annexures to affidavit of Leigh May Kinsella, sworn 20 June 2011 at pages LK14, LK 17 and LK18.
The Court is simply not persuaded on the evidence that the applicant made it clear what she considered constituted “independent power” with the specificity that she now claims, and the most that can be said to be clear on the evidence is that she asked for, and ultimately obtained after she installed the generator, a power system which enabled her to remain off-road or out of caravan parks for up to four to five days. There was, in the Court’s view, no representations or conduct which were misleading or deceptive by the respondent, or Mr Vitasovic, with respect to the question of independent power in the Bus.
Solar panels
With respect to the installation of the solar panels there does not appear to be any dispute that what was originally planned to be installed were two 12 volt 85 watt solar panels. At some point, Mr Vitasovic determined to install only one 24 volt 190 watt solar panel, which he was told by the supplier would deliver more power than the two 12 volt solar panels, and which he therefore felt was preferable, even though more power was not required: Transcript, 3 July 2012, pages 42 and 87. The evidence before the Court does not establish that the single solar panel was not more efficient than the two 12 volt 85 watt solar panels. The applicant’s expert evidence does not support the applicant’s assertion of false or misleading representations or misleading and deceptive conduct by the respondent. Rather, it simply indicates that “people just settle on 2 x 80 watt solar panels or the equivalent 1 x 185 watt” solar panels, whilst indicating some doubt as to whether either “will do the job”. The complaint made is not as to whether there is one or two solar panels, but that the single solar panel was represented to be more efficient and more powerful than the two requested by the applicant. There is nothing in the evidence which establishes that the single solar panel was not more efficient nor more powerful than the two requested by the applicant. As to efficiency of the solar panels there is no evidence from a person in a position to know as to the efficiency of the two versus one solar panel. On the question of power, on the face of it the one solar panel at 190 watts, does appear to be more powerful than the two solar panels, which combined provide 170 watts, and there was evidence from Mr Vitasovic to this effect: Transcript, 4 July 2012, page 112. Again, this is not a matter which is the subject of any expert evidence as to the actual power provided.
The applicant’s central premise with respect to this alleged misleading or deceptive conduct or representation is therefore not made out, in that the applicant has failed to prove that the single solar panel is not as efficient or powerful as the two solar panels. It follows, therefore, that there was no misleading or deceptive conduct or representations by the respondent or Mr Vitasovic in this regard.
Battery system
The applicant argued that the battery system in the Bus was not sufficient because the fridge would only run for one and a half days: Transcript, 3 July 2012, page 52. The applicant conceded, however, that she did not request a two-way power system, and, therefore, the power ran off the batteries all the time. Based on previous experience she had “assumed” that there would be two-way power system so that when she was plugged in to mains power the system would not be running off the batteries all the time, but that that was not the case: Transcript, 3 July 2012, page 34.
Evidence was given by Mr Butt, an auto electrician from Bentley Auto Electrics, as to work conducted on the Bus immediately prior to Easter 2011, that is from 18 April to 21 April 2011. Mr Butt’s evidence was that when the Bus was brought to Bentley Auto Electrics the batteries were “out of sync”. Mr Vitasovic would later give evidence that, in his experience, batteries become out of sync when one or other them is flattened by over-use. In any event, Bentley Auto Electrics had the Bus for four days during which time, having charged the batteries, they ran the fridge, as well as some of the lights in the Bus, for four days off the batteries: Transcript, 4 July 2012, page 72, corroborated by Mr Vitasovic’s evidence at Transcript, 4 July 2012, page 93. Mr Butt’s evidence therefore cast considerable doubt on the applicant’s assertion that the fridge could only be run for 1.5 days on the batteries.
Mr Butt’s evidence was that one of the batteries was out of sync because it was “not up to spec”, but there is no evidence as to how that happened, or from when the battery was out of sync. It is relevant in that regard to note, however, that the applicant gave evidence that she was using a television and computer on the Bus for up to seven hours a day, and it is, therefore, conceivable that she may have flattened one or other of the batteries to such an extent that the batteries were out of sync. In any event, Mr Butt’s evidence is not consistent with the applicant’s assertion that the fridge would only run for one and half days off the batteries.
Mr Butt also gave evidence that he did replace a cable so as to allow the batteries to charge better, but that the previous cable was adequate: Transcript, 3 July 2012, pages 75 and 79.
After Mr Butt had examined the batteries, the applicant sought advice and had the batteries examined by a number of parties, independent of the respondent. In those circumstances, it would not be safe for the Court to draw any conclusions from the hearsay evidence of the applicant (which although not objected to is in any event not admissible): Evidence Act 1995 (Cth), s.59(1), and because the Court cannot on the evidence be satisfied that the batteries have not otherwise been the subject of work or interference by persons other than the respondent or its nominated contractors: affidavit of Leigh May Kinsella, sworn 20 June 2011 at paras.35-47.
There is, in short, no cogent evidence that the batteries which were installed by the respondent were not of acceptable quality or were unfit for purpose in any way, at the time of their installation. There is no sufficient evidence to enable the Court to draw an ultimate conclusion as to the reasons why, by shortly before Easter 2011, the batteries were “out of sync”, but the evidence in that regard is not inconsistent with the batteries being over-used by the applicant to such an extent that one or other of them flattened, therefore putting them “out of sync”. It is relevant in that regard to note that the applicant concedes that there were no problems with the Bus until March or April of 2011: Transcript, 4 July 2012, page 67.
December 2010
The applicant collected the Bus on 23 December 2010, paying an extra $400 for a power point outlet that her son had requested be installed.
The applicant says that on 23 December 2010 Mr Vitasovic, on behalf of the respondent, made the following representations:
a)that one solar panel was installed instead of two as originally requested because the one solar panel installed was more efficient, and therefore better, than the combined effect of the two that Mr Vitasovic had originally intended to install, and it was cheaper;
b)that he installed two batteries;
c)that the refrigerator would work for two or three days on the batteries alone without a generator or solar power;
d)that a battery monitor was installed, and Mr Vitasovic showed the applicant and her son how to interpret the battery monitor;
e)that if the battery monitor showed a reading of less than 12 volts Mr Vitasovic advised the applicant that she ought to utilise other sources of power;
f)that pumps were installed in the back of the seating, which had not been requested by the applicant; and
g)how to operate the awning.
The applicant also says that at no time did Mr Vitasovic communicate to her that:
a)the lights, the water pump, the gas stove, the gas water heater, the water pumps for the toilet and shower, would all be using battery power;
b)the television, the computer or any other electrical appliance would be using battery power;
c)the utilisation of power from the power point outlet would reduce the amount of power supply to the refrigerator;
d)the battery monitor did not indicate the amount of power that was being used;
e)she ought to use the plasmatronic unit to get an indication of how much battery power was being used;
f)he did not how to read the plasmatronic unit;
g)he did not how to wire up the battery correctly; and
h)he did not how to operate the awning.
In evidence, the applicant conceded that the Bus “looked perfect” and that she was “very very happy”: Transcript, 3 July 2012, page 23. The Bus “looked perfect…wonderful” at pick-up, and apart from the issue of the gas appliances, the applicant conceded that it was “everything that I could possibly have wanted, and I still feel that way.”: Transcript, 4 July 2012, page 68. As late as 25 May 2011, less than a month before instituting these proceedings, the applicant would advise Mr Vitasovic as follows:
David I do want to convey again that I am 100% satisfied with how you outfitted my bus. There were a few surprises like the pumps in the seats and the outdoor gas BBQ and how big and heavy the awning was but overall I am happy with how great the bus looks and how it is set out.
See affidavit of Leigh May Kinsella, sworn 20 June 2011, annexures page LK16.
Overall, it appears to the Court that the applicant made a general inquiry of the respondent in April 2010 and received a general response and estimate of the cost of customisation of her Bus. In light of subsequent events the Court does not consider that any real reliance was placed upon that general inquiry and response in April 2010. Those subsequent events included the fact that the applicant ordered a customisation of her Bus on essentially the same basis as the Other Bus, which she had seen on the respondent’s website in a customised version. The respondent sent the applicant the Plan, including reference to the “GAS STOVE”, and the applicant, without really knowing what it was that she was getting apart from what she had seen on the website in relation to the customised version of the Other Bus, went ahead and placed an order for the customisation of her Bus in much the same terms as the Other Bus. In so doing the applicant did not ascertain with any degree of specificity matters of importance, including the nature of the Bus’ power sources, or the nature of the appliances to be installed, and did not specify that she wanted non-gas appliances. The applicant simply made many assumptions as to how the Bus was to be customised. The applicant conceded this under cross-examination, generally conceding on a number of occasions that she had made assumptions which did not turn out to be true, and specifically said that she had been “…foolish enough…to trust that I was going to get what I asked for…”, in circumstances where what she asked for was based on both assumption and a lack of specificity, in circumstances where she was prepared to concede that in so doing she had been “very foolish, very foolish”: Transcript, 3 July 2012, page 52.
Ultimately, the Court concludes that in December 2010 the applicant essentially got from the respondent what she asked for: a customisation of the Bus in a manner not manifestly dissimilar to the Other Bus.
February-March 2011
In February 2011 the applicant had travelled over 1000 kilometres through the south-west of Western Australia, during which time everything in the Bus seemed to be working, and during which time she did spend two, albeit separate, nights operating under what she described as “independent power” when parked up in information bays. That can only mean that she was operating off battery power on those nights.
No problem emerged until the applicant returned to Perth, was parked up in her daughter’s driveway, and using her daughter’s power, at which time the fridge defrosted, the applicant says, in a day and a half.
December 2010 to June 2011
In the period between December 2010 and June 2011 the applicant says that she discovered the following issues with the Bus:
a)that the battery was not wired properly;
b)that the shower hose was stuck, and as a result, the shower could not be used;
c)that the shower door was faulty and did not shut properly;
d)that the shower recess has three unprotected wood walls;
e)that the water hose was dislodged, and as a result, there was no access to water;
f)that the elbow joint is too small for the outlet pipe;
g)that the water hose is too big for the joint;
h)that the cover came apart from water pressure;
i)that the outlet pipe from the sink is not secured properly;
j)that the hose from the shower outlet is crimped;
k)the water comes up from under the shower access, which was temporarily fixed so as not to cause further water damage to the shower surrounds and nearby cupboard;
l)the sink tap drips;
m)the plasmatronic unit had exposed metal parts;
n)the plasmatronic unit was not wired up correctly to use all functions;
o)the plasmatronic unit did not have a remote meter installed;
p)the plasmatronic unit alarm is not activated;
q)the plasmatronic unit was initially under a seat and not accessible to read;
r)the LED lights flicker;
s)there is no ventilator to remove smoke from the gas cooker;
t)the slide-out barbeque set is stiff and difficult to pull out;
u)there has not been a weather shield installed over the awning;
v)the tension knobs for the awning were not supplied;
w)the gas bottle was not supposed to be under the bed; and
x)the unsealed batteries were installed in the Bus.
Battery not properly wired
There is no evidence that the batteries installed in the Bus by the respondent were not properly wired. Indeed, Mr Butt’s evidence is to the contrary, that the wiring was adequate as at Easter 2011. Since then, various people have had access to the batteries, and have taken them in and out of the Bus. That, together with a lack of specificity as to when it is asserted that the battery was not properly wired, means that the Court is not prepared to conclude that any battery installed in the Bus was not properly wired.
Shower hose
The applicant’s evidence indicates that the applicant did not use the shower hose until April or May 2011, that is four to five months after the Bus was collected from the respondent. The evidence establishes that the shower hose was stuck, and could not be retracted, and therefore could not be used for the hand basin, which it seemingly was intended to be used for as part a dual purpose. Thus, whilst the applicant could use it to shower, because it could not be retracted, and then drawn out again to use for the hand basin, it was limited to one use rather than two. See Transcript, 3 July 2012, pages 29-30 and 32-33. Subsequently, the applicant has had the problem with the shower hose fixed by a person other than the respondent.
The respondent’s expert gave evidence that “the shower hose is of acceptable quality and has been used for many years in the industry”: respondent’s expert’s report, point 2. That evidence, however, goes to the quality of the shower hose, and not whether it was fit for purpose. In any event, it appears that the respondent’s expert inspected the Bus on 1 May 2012, after the shower hose had been repaired.
In the circumstances, the Court is satisfied, on the applicant’s evidence, that the shower hose as supplied by the respondent in the Bus was not reasonably fit for the purpose of being both a shower hose and hand basin hose, which was the particular purpose for which the hose was supplied as part of the Bus. In those circumstances, there has been a contravention of s.55(1) of the ACL.
There is no evidence of the cost of repairing the shower hose, but it is unlikely to be a significant cost.
Shower door
The applicant gave evidence that the shower door does not shut properly: affidavit of Leigh May Kinsella, sworn 27 January 2012, para.59 and annexure LK42.
There is no evidence from the applicant’s expert that the shower door does not shut properly. There is a reference to “Loose fittings attributed to poor workmanship. (Fixed by other parties as claimed)”: applicant’s expert’s report, page 4. The respondent’s expert merely indicates that “The shower door and lock are standard for this conversion.”: respondent’s expert’s report, point 3.
There is no evidence of the shower door being repaired, nor of the cost of any such repair if it was undertaken. In the circumstances, these facts, taken together with the relative vagueness of the expert’s evidence as to the shower door and the nature of the alleged defect, do not enable the Court to draw a positive conclusion as to whether or not the shower door was not of an acceptable quality or was unfit for purpose. The applicant has, therefore, not made out her case in this respect.
Shower recess
The complaint as set out is that the shower recess has three unprotected wood walls, but on the evidence it would appear that the problem is that the wood is warping as a consequence of water getting in.
The applicant’s evidence was that this was a problem which commenced in February 2012: Transcript, 3 July 2012, page 53. It was subsequently fixed when a seal around an extractor fan was resealed. The inference which the applicant seemingly seeks that the Court draw is that the extractor fan seal was never sealed properly when the work was initially carried out: Transcript, 3 July 2012, page 54.
Mr Vitasovic conceded that any wood would warp if it became excessively wet: Transcript, 4 July 2012, page 108. Mr Vitasovic was not cross-examined as to the sealing of the extractor fan, or the workmanship associated with the installation of the extractor fan, or any problem with the sealing of the extractor fan.
The applicant’s expert’s evidence is that the shower seal finish appears to be satisfactory, but there “seems to be movement which is normal” and that could be “a maintenance issue as the vehicle build is 18 months old. (Distance travelled)”: applicant’s expert’s report, page 4. The applicant’s expert also indicates that an extension handle kit might have been used on the extractor fan and roof hatch, but that the roof hatch still operates, although it would have worked better with an extension handle: applicant’s expert’s report, page 4. The applicant’s expert goes on to indicate that there was a “Poor choice of sealant used on roof vent. (Annual maintenance)”: applicant’s expert’s report, page 4. The respondent’s expert does not comment on these issues other than to say that the shower access is “ample given the limited space in this vehicle”: respondent’s expert’s report, point 4. The applicant’s expert went on to indicate that the hatch in the bathroom needs urgent attention and that he had sealed it with silicon to stop additional water entry. The applicant’s expert also notes that the “…panelling in the shower is warped at this stage. Investigations show possibly from leaking roof hatch and hand basin (as claimed)”: applicant’s expert’s report, page 4.
The problem commenced 14 months after the Bus was collected, and there is no evidence as to the nature of the problem with the seal from the person who fixed it, and no evidence from the applicant other than that there was a problem with the seal. This problem might have arisen because of natural shrinkage of a seal over time or movement from road travel. Inferences to that effect are available from the applicant’s expert’s evidence, and in particular his comments about movement in the shower seal as a consequence of distance travelled, and that the sealant used on the roof vent was an annual maintenance matter. Although the applicant’s expert is critical of the roof hatch to the bathroom area the evidence is that it “still operates”: applicant’s expert’s report, page 4. The applicant’s expert is not conclusive as to whether the warping is as a consequence of a leaking roof hatch or hand basin: it is a possible cause, but no definite conclusion is set out or reached.
On the evidence as it presently stands the Court is not satisfied that the problem with the seal with the extractor fan, and the consequent shower recess problems, are ones that were of the respondent’s making. All that can be said is that 14 months after the applicant took delivery of the Bus the area around the extractor fan began to leak. There is no evidence as to the cause of the leak which links it to the nature or quality of the goods supplied, or the workmanship involved in installing, the extractor fan. Likewise, the fact that no extension handle kit was installed does not appear to have had any specific effect.
Dislodged water hose
The applicant asserts that the water hose came apart and that she did not have water for the toilet: affidavit of Leigh May Kinsella, sworn 27 January 2012, para.59 and annexure LK 41. The fact that the water hose came apart and that the applicant did not have water for the toilet accompanied by a photo which shows that, does not, without more, establish unfitness for purpose or unacceptable quality. The applicant is not assisted by the applicant’s expert’s evidence in relation to this issue, which appears to be somewhat contradictory, indicating that the interior of the toilet is of a standard that is accepted in the industry, which notes that the cover plate provided for the toilet installation kit is not in place, and then notes that the fittings at the back of the toilet have failed, but that the expert has seen this many times before: applicant’s expert’s report, page 2. The applicant’s expert indicates that he is not sure whether the cover plate has been left off or has been removed. The applicant’s evidence was that it was left off at installation.
In the circumstances, the Court is not prepared to find that there was any unfitness for purpose or lack of quality in relation to the water hose itself, because of the applicant’s expert’s evidence that this is not an unusual occurrence, or at least it is one that he has seen many times before, and that otherwise the interior is of a standard accepted in the industry. With respect to the cover plate, the Court accepts the applicant’s evidence that that was never in installed, and, in those circumstances, finds that that aspect of the goods was unfit for its particular purpose, contrary to s.55(1) of the ACL.
There is no evidence as to the cost of rectification of this issue, but it would not appear to be significant.
Elbow joint
The applicant asserts that the elbow joint was too small for the outlet pipe from the shower recess. The applicant says that the respondent, at some point, removed the smelly water from the outlet drain, but did not fix the alleged underlying problem with the elbow joint: see Transcript, 3 July 2012, page 47.
The applicant has subsequently had the problem rectified by a person other than the respondent.
The respondent’s expert’s evidence is that the elbow joint is that “normally used in all conversions”: respondent’s expert’s report, point 6. The applicant’s expert does not directly comment upon the assertion with respect to the elbow joint on the outlet pipe, but does observe, apropos of a further issue, that the shower waste hose under the vehicle is kinked throughout its length, that there is poor pipe routing, and that the “use of elbow fittings would stop this problem”.
On the evidence, it would appear that there was not any defect or unfitness for purpose in the elbow joint as supplied, in that it appears that it was the elbow joint normally used in such customisations. There is no expert, and otherwise no adequate, evidence to indicate that the elbow joint was too small for the outlet pipe from the shower recess, and that it caused any problem with respect to either the water accumulating in the outlet drain, or any water damage caused by internal flooding in the shower surrounds.
Water hose too big for joint
This issue is the obverse of the elbow joint issue discussed above, and, likewise, the evidence does not establish any defect or unfitness for purpose in the water hose.
Cover coming apart from water pressure
This matter is covered under the “Dislodged water hose” heading above.
Outlet pipe
The evidence of the applicant was that the outlet pipe from the sink and shower was loose, and that the applicant found this out when she tried to use the grey water tank immediately after she picked up the Bus, but because she did not subsequently use the grey water tank it was not a problem until later: Transcript, 3 July 2012, pages 55-56. This contrasts with the applicant’s evidence that the Bus was “perfect” and that she was otherwise happy with the fit-out at the time that she took delivery. It is clear that the applicant’s evidence in this regard is inconsistent.
On the evidence, there is insufficient evidence to conclude that the water outlet pipe was not properly secured at the time of delivery of the Bus. The applicant’s case in this respect has not been made out.
Shower outlet hose crimped
The applicant asserts that the hose from the shower outlet is crimped. The applicant’s expert agrees that it is “kinked throughout its length” and that the use of elbow fittings would stop this problem. The respondent’s expert does not comment on this issue at all. It may be that the crimped or kinked shower waste hose is the cause of the smelly water and water backup into the shower recess, but there is no evidence which indicates that this is the case. Nevertheless, a pipe which is kinked throughout its length is not a pipe or hose which is fit for purpose, particularly in circumstances where the use of elbow fittings would, on the applicant’s expert’s evidence, make it fit for purpose. In these circumstances, the applicant has established that the shower waste hose under the vehicle was not fit for purpose, for the purpose of s.55(1) of the ACL.
There is no evidence as to the likely cost of rectification of this problem, but once again it would not appear to be significant.
Kitchen tap
The applicant says that the kitchen tap leaks. The applicant’s expert evidence indicates that the installation of the sink and plumbing to the sink is restrained and clipped up. Further, that all items used are available in the industry, and that whilst any leaks might be associated with poor workmanship that is not apparent: applicant’s expert’s report, page 3. The applicant’s expert goes on to comment on some missing lock clips on pipe work, and a possible source of a water leak from an external screw: applicant’s expert’s report, page 4, none of which, however, goes to the question of a leaky kitchen tap. The respondent’s expert simply indicates that the “Sink tap is also acceptable”: respondent’s expert’s report, point 7.
The evidence does not clearly establish leakage from the kitchen tap, or that there was a problem with the goods supplied or their quality. In the circumstances, the Court is not prepared to find that there is a leaking kitchen tap, and even if there is a leaking kitchen tap there is nothing to indicate that it is the fault of the respondent, either in terms of the quality of the goods supplied or their fitness for purpose.
Plasmatronic unit
The evidence establishes that the applicant did not specifically request that the plasmatronic unit be installed in the Bus, but that the respondent installed a plasmatronic unit as there was one on the Other Bus. The plasmatronic unit on the Bus was, however, different to the system on the Other Bus: Transcript, 3 July 2012, page 34 and 4 July 2012, page 92.
The applicant makes certain assertions, including that there were unsafe and uninsulated bare wires in the plasmatronic unit, that the unit did not have a remote meter or alarm, and was initially inaccessible. The respondent says that the unit was relocated, but that in any event the applicant was told that the plasmatronic unit was not, essentially, for her use, but installed as a regulator which might be useful for an auto electrician: Transcript, 3 July 2012, page 56 and 4 July, page 94.
There is nothing in the applicant’s expert evidence which indicates that the plasmatronic unit is not fit for purpose or is otherwise of unacceptable quality in any way. The applicant’s expert evidence essentially agrees with that of the respondent. The applicant’s expert in summary finds that the plasmatronic unit:
a)is a top of the range product too complex for the average user in most situations;
b)has been relocated from its original location;
c)installation under the seat is not technically a problem, but they are usually installed in an electrical only dedicated location in a cupboard away from view; and
d)is too complex for the average person, and there are many functions in the plasmatronic controller which are not required in every installation.
Applicant’s expert evidence, pages 2-3.
It is not clear what, if any, damage the applicant says that she may have suffered by reason of the matters which she asserts in relation to the plasmatronic unit. Further, the evidence does not establish that the plasmatronic unit was not fit for purpose or of unacceptable quality. The applicant has not, on the evidence, made out her case in this regard.
LED lights
The applicant concedes that there was no discussion with respect to what lights were appropriate for the Bus, and that she assumed that the respondent would install appropriate lighting in the Bus: Transcript, 3 July 2012, pages 30-31.
The evidence of the applicant suggests that there is a problem with the LED lights in that they dim and flicker and that that has occurred since she took delivery of the Bus. A significant difficulty with the applicant’s evidence is that she also gave evidence that apart from the alleged issue with respect to the gas appliances everything in the Bus was “perfect”, and that there was not a problem until March or April of 2011.
The applicant’s expert evidence does not assist the applicant. The applicant’s expert indicates that he is “satisfied with the lighting system”, albeit that he prefers to use halogen lights rather than LEDs due to the number of issues with the LEDs. The applicant’s expert then says that he “…found the LED lights are unreliable, although they are very efficient with power consumption”, but that any “…issue should be taken up with the suppliers for warranty”: applicant’s expert report, page 3. The difficulty with the applicant’s expert evidence, particularly in the absence of his being available for cross-examination, is that the statements that he makes with respect to being satisfied with the lighting system in the Bus appear to be at odds with his statement that “LED lights are unreliable”, although this might be explained by reference to LED lights generally, and not in the lighting system for this particular Bus. Because the applicant’s expert was not made available for cross-examination this matter was not able to be tested by the respondent, and in those circumstances the respondent ought not suffer any prejudice by reason of internal conflict within the applicant’s expert’s advice, and the Court will therefore take the applicant’s expert’s evidence at its highest for the respondent with respect to the lighting system. Furthermore, the applicant’s expert evidence taken at its highest is consistent with that of the respondent’s expert who says that the “…LED lights are the latest fittiings (sic) available and acceptable”: respondent’s expert’s report, point 9.
In the circumstances, and particularly given the expert evidence as accepted by the Court, the applicant has not made out a case that the LED lights were either of unacceptable quality or not fit for purpose.
Ventilator for gas cooker
The applicant now complains that there is no ventilator for the gas cooker within the Bus. No ventilator was however requested, and there is no evidence that a ventilator was fitted to the Other Bus. The final point of the applicant’s expert evidence is that a “…range hood is not compulsory to have in a vehicle when cooking”: applicant’s expert’s report, page 6. In circumstances where such ventilation is not compulsory, and where there is no evidence that there was such a ventilator in the Other Bus, and, further, no evidence that such ventilation was ever requested by the applicant, the applicant cannot now complain that there is not a ventilator or range hood for the gas cooker. This aspect of the applicant’s case is therefore not made out.
Barbeque
The applicant appears to assert that the barbeque is not correctly installed, and needs to be greased in order for it to slide out correctly. The remedy sought by the applicant is, it seems, to have the barbeque properly greased to enable it to slide correctly.
The respondent says that the barbeque is standard for a customisation of this type, and was of acceptable quality as inserted.
On inspection by the respondent’s expert it was found that that the “Slide-out barbeque is (sic) of acceptable quality”: respondent’s expert’s report, point 10.
The respondent’s expert’s evidence, which the Court accepts, indicates that there is nothing with respect to the barbeque which means it was of unacceptable quality or not fit for purpose. The remedy sought now is one which appears to be a maintenance issue, if, given the evidence of the respondent’s expert, it is an issue at all. The applicant has not made out her case in this respect.
There is a complaint that the cost of the installation of the barbeque significantly exceeded the cost of the barbeque itself. There is, however, no evidence which would establish that although the barbeque itself was a relatively cheap item to purchase, that its installation in the Bus cost less than was charged when regard is had to the fact that the barbeque has to be installed, and there is a labour cost involved in that installation, including the necessary gas fitting. Although this particular complaint does not come under any particular head, it is not made out on the available evidence in any event.
Awning
The applicant’s complaints appear to be that there were no tension knobs supplied with the awning, that there were holes left by relocation of the awning, and that there was no weather shield for the awning.
The applicant conceded that a weather shield was not requested for the awning: Transcript, 3 July 2012, page 56.
The applicant’s expert evidence was that it was common to fit awnings to this type of vehicle, but that an awning cover (weather shield) “does not come standard”: applicant’s expert’s report, page 1. The applicant’s expert goes on to note that awnings are prone to damage from the elements. The applicant’s expert notes that the awning has been relocated, leaving holes not repaired in the bodywork which is not of tradesman like quality: applicant’s expert’s report, page 1. The existence of such holes was characterised as poor practice by the applicant’s expert.
Mr Vitasovic gave evidence that on two occasions he showed the applicant how to put up the awning, and in those circumstances does not believe that the tension knobs were missing. It is relevant to note that the tension knobs were first observed to be missing some months after the applicant took delivery of the Bus. As to holes as a consequence of relocation of the awning, this is not disputed, although it is said by the respondent that there were only three holes, and that they were probably filled with sealer in the expectation that the applicant was to have the Bus painted. It is relevant to note that the applicant’s expert does not note how many holes there are in the Bus. In the circumstances, the Court is prepared to accept Mr Vitasovic’s evidence that there are three such holes.
In the circumstances, although the matter appears to be a trifling one which might otherwise have been solved by the application of some sealer and a lick of paint, because the practice is a poor one, the goods supplied were not fit for purpose, and it is only to this extent that the complaint about the awning is made out.
Once again, there is no evidence as to the cost of remediation of this issue, but it is clearly not a significant cost.
Gas bottle
The evidence was that a gas bottle was installed under the bed in the Bus. Sometime after the applicant had taken delivery of the Bus the relevant State government department issued a defect notice requiring that the gas bottle be relocated. The relocation was required to be done by a certified gas fitter. Transcript, 3 July 2012, pages 46-47.
It is not apparent what, if any, injury the applicant suffered as a consequence of the gas bottle having to be shifted.
The applicant’s expert clearly took the view that the relevant State government inspector was correct in requiring relocation of the gas bottle, as its location under the bed was not in accordance with the relevant regulations or standards: applicant’s expert’s report, page 5.
Mr Vitasovic gave evidence that he did not think that the location was a problem, but once that it was deemed to be so then the respondent would have got a gas fitter to rectify the problem. Mr Vitasovic gave evidence that there was a gas fitter’s certificate with respect to the original location of the gas bottle: Transcript, 4 July 2012, pages 81 and 110.
It is beyond doubt, particularly given the rectification notice issued by the relevant State government inspector that the gas bottle was fitted in a manner which was not fit for its particular purpose under s.55(1) of the ACL. The applicant has made out her case in this respect.
The unchallenged evidence of the applicant was that she had to pay $110 to have the defect with respect to the gas bottle remedied: affidavit of Leigh May Kinsella, sworn 27 January 2012, at para.28.
Unsealed batteries
The evidence of the applicant was that two unsealed batteries were put into the Bus in June 2011 as replacement batteries when the normal batteries were taken to the respondent to be recharged and resynchronised. The batteries inserted which were unsealed were loan batteries and it was intended that they be very short term insertions, and that they be replaced by the resynchronised batteries: Transcript, 3 July 2012, pages 43-44. The applicant was however then told by the respondent, through Mr Vitasovic, that there was a fault with the batteries and that two replacement batteries would be obtained for the applicant’s Bus. The applicant insisted upon knowing the make, model and type of those batteries, and when the respondent did not, or was not able to, tell her, she refused to provide the respondent with access to the Bus to replace the loan batteries with new batteries.
The applicant now claims that unsealed batteries ought not to have been placed in the Bus, and that they give off toxic fumes. The applicant conceded, however, under cross-examination, that she had no idea whether the unsealed batteries in her Bus gave off toxic fumes, and that when she had blood and urine tests done, her results were clear: Transcript, 3 July 2012, page 45. Furthermore, she concedes that she did not return the unsealed batteries to Mr Vitasovic as requested by him: Transcript, 3 July 2012, page 45.
Mr Vitasovic says that the applicant’s daughter was told that the unsealed batteries were not meant to be permanent, and indeed that they were extremely temporary, having been obtained at short notice, at the applicant’s request, over a weekend in June 2011: Transcript, 4 July 2012, page 80.
Mr Vitasovic indicated that the batteries were on temporary loan for three to four days, a position not disputed by the applicant. Nor did the applicant dispute Mr Vitasovic’s evidence that she refused to bring the Bus back to enable new batteries to be fitted, and that this was said to be, ultimately, on the basis that the applicant was going to take legal action. Given that these events supposedly occurred over a weekend in June 2011, that rings true, with the Application being filed on 20 June 2011. See Transcript, 4 July 2012, pages 100-103.
Mr Vitasovic gave evidence that he did not want the applicant to even drive the Bus whilst the loan batteries were installed (those batteries being for non-driving power purposes), and that he would have preferred to take them out when she brought the Bus back, but that she refused to come back to have the unsealed batteries taken out: Transcript, 4 July 2012, pages 101-102.
In the circumstances, the unsealed batteries were not intended to be anything other than a very short term and temporary solution to a particular problem with respect to the recharging of the ordinary batteries, and then the supply of ordinary batteries. The applicant cannot complain about the consequences of exposure to unsealed batteries in circumstances where she refused to return the Bus to have sealed batteries put back into the Bus. Furthermore, there is no evidence of any injury whatsoever being suffered by the applicant as a consequence of the unsealed batteries being in the Bus, and, moreover, it is highly unlikely that the applicant would have suffered any injury if she had returned the Bus to the respondent as requested immediately after the June weekend concerned. That she did not so return the Bus evinces a lack of concern for her own welfare, the consequences of which, if any (and on the evidence there are none) ought not, in any event, be visited upon the respondent.
Air-conditioner
The air-conditioner was leaking, and was fixed under warranty by the manufacturer: see affidavit of Leigh May Kinsella, sworn 13 July 2011. The applicant’s expert observed that water does drain from these air-conditioners and if the drainage or channels become blocked it will result in water dripping inside the Bus: applicant’s expert’s report, page 3. The applicant asserts in her affidavit of 13 July 2011 that the leak was a consequence of poor installation, but there is no evidence to support that assertion, and the applicant has no relevant expertise sufficient to make that assertion. Significantly, the applicant’s expert does not make this assertion. On the evidence, the applicant has failed to make out her case against the respondent on this issue.
Pumps
Although a complaint is made about the installation of the pumps in the seats, there is no evidence that these pumps are unfit for purpose or of an unacceptable quality, or that they were not inserted in the Other Bus. In any event, there was no evidence of any damage or injury caused to the applicant by reason of the positioning of the pumps.
Overall
It is, finally, relevant to note that the applicant’s expert gave evidence that the customisation of the Bus “…appears to be a standard expected given the cost” and “…the fit out is of a usual acceptable standard”: applicant’s expert’s report, page 4. The respondent’s expert indicated that “the conversion in the Coaster bus is of a very high standard”: respondent’s expert’s report, final paragraph.
Consideration – summary
In summary the Court has concluded that:
a)the claims of misleading and deceptive conduct and representations under ss.18 and 29 of the ACL have not been established; and
b)the claims as to unacceptable quality and unfitness for purpose have only been established in relation to unfitness for purpose for:
i)the shower hose;
ii)the toilet water pressure cover;
iii)the crimping of the shower outlet hose;
iv)the gas bottle; and
v)the awning, but only as to the three unsealed holes.
In respect of the above there is no specific evidence as to the cost of rectification of each of the above matters, or the damage suffered by the applicant, save for the cost of $110 with respect to the gas bottle.
Damages
The applicant claims damages of $11,824.40 for monies expended in rectifying what she alleges were deficiencies with the customisation of her Bus, and a further $6,231.25 for matters still to be repaired: Transcript, 3 July 2012, page 15. The applicant asserts that she spent more than $4,000 having rectification work undertaken, including the addition of two further batteries and an additional solar panel, plus the un-jamming of the shower hose, the connection of the running water and the repairing of the elbow joint, together with the installation of lights and an extractor fan for the gas stove: Transcript, 3 July 2012, page 49.
Additionally, the applicant asserts that she may have lost as much as $104,000 by reason of her not being able to undertake a year of relief teaching because she did not have enough power in the Bus to enable her to be accommodated at remote relief teaching sites: Transcript, 3 July 2012, page 26. The applicant, therefore, asserts that she could not go relief teaching.
The claim with respect to relief teaching must however fail on the evidence. There is no evidence that the applicant would have got relief teaching, or any specific independent evidence as to what rate she would have been paid, or had been paid in the past. There is in evidence no payslips from past work carried out on a relief basis, and no evidence of, for example, industrial awards or orders establishing the relevant rate of pay for teachers undertaking relief remote teaching.
There was also an unquantified claim with respect to distress and injury arising from the circumstances generally, which was unsupported by any medical evidence whatsoever. In those circumstances, that claim cannot succeed.
With respect to the claims which have succeeded under s.55(1) of the ACL the applicant has failed to specifically quantify and prove damages, save for the damages with respect to the gas bottle, which cost $110. It is, however, apparent that there is no significant cost attached to rectification of the remaining items with respect to which the Court has found liability under s.55(1) of the ACL. Damages in these circumstances are not necessarily an exact science, and the Court does not consider that the rectification of those issues which were unquantified ought to exceed $750.
There will therefore be judgment for the applicant on her Application in the sum of $860 ($750 plus $110 for the gas bottle) with respect to the items upon which liability has been found, but otherwise the Application will be dismissed.
Conclusion and orders
The Court has concluded that:
a)the Applicant’s Application in a Case filed on 6 July 2011 ought to be dismissed;
b)the Respondent’s Application in a Case filed on 6 March 2012 ought to be dismissed; and
c)there be judgment for the applicant in the sum of $860, but otherwise the Application ought to be dismissed.
There will be orders accordingly.
The Court will hear the parties as to the costs of the Application, the Applicant’s Application in a Case and the Respondent’s Application in a Case.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 9 April 2013
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