Melbourne Roma Caravans & RV's v Cunningham - [2022] VSC 25

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01947

MELBOURNE ROMA CARAVANS & RV’S PTY LTD (ACN 116 626 138)	Applicant
v
PETER CUNNINGHAM	Respondent

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2021
DATE OF JUDGMENT:	4 February 2022
CASE MAY BE CITED AS:	Melbourne Roma Caravans & RV’s v Cunningham
MEDIUM NEUTRAL CITATION:	[2022] VSC 25	First Revision: 14 February 2022 [119], [121]

---

JUDICIAL REVIEW AND APPEALS – Application for leave to appeal from VCAT under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Consumer Law – Purchase and supply of a caravan said to be overweight and prone to “sway”– Whether the Member erred in purportedly selecting inapplicable consumer guarantee - Whether the Member erred in applying the ‘major failure’ analysis pursuant to s 260 of the Australian Consumer Law – Boyd v Agrison Pty Ltd [2014] VMC 23, referred to and applied – Craig v South Australia (1995) 184 CLR 163, applied – Australian Consumer Law ss 54, 55, 56, 259 and 260 – Whether the Member denied the applicant procedural fairness by relying upon s 56 of the Australian Consumer Law for the purpose of determining whether there was a major failure pursuant to s 260 of the Australian Consumer Law – Whether the Member’s finding that a reasonable consumer would regard a risk of sway of the caravan as a major failure was unreasonable, illogical or irrational – Whether the Member’s orders were ultra vires in part – Section 263 of the Australian Consumer Law – Application for leave to appeal and appeal granted in part.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Berger	Thomas Egan & Associates
For the Respondent	Mr A Ounapuu	Equity Legal Australia

HER HONOUR:

Background and introduction

The applicant, Melbourne Roma Caravan & RV’s Pty Ltd (‘Roma’) manufactures and sells caravans to the general public. The respondent, Mr Peter Cunningham, is a keen caravaner, and a disappointed customer of Roma. In 2018, Mr Cunningham purchased a Roma Elegance Slide-Out model caravan from Roma for $83,000. This model is at the premium end of the market. The purchase price included the cost of some modifications and extras negotiated between Mr Cunningham and Roma’s salesperson, Mr Lee Mason.

During two trips to regional Victoria after taking possession of the caravan in September 2018, Mr Cunningham was disappointed with the performance of the caravan, and Roma’s response to his complaints about the caravan. The main issues of concern to Mr Cunningham were the “sway” of the caravan when travelling at high speeds on the open road, and the carrying capacity of the caravan. In particular, the carrying capacity of the caravan was, in Mr Cunningham’s view, insufficient to lawfully and safely carry the goods, equipment, and water required to go “free camping” in national parks, where there is no onsite power and water. Later, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Melbourne Roma Caravans & RV's v Cunningham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] VSC 25
Decision Date: 4 February 2022

CaseChat Overview and Summary

Melbourne Roma Caravans & RV's sought leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT) made in favour of Cunningham. The dispute was centred on the purchase of a caravan that was alleged to be overweight and prone to swaying. Cunningham claimed that the caravan did not meet the consumer guarantees under the Australian Consumer Law (ACL). The court had to determine if VCAT erred in its application of the consumer guarantee and the major failure analysis as per section 260 of the ACL.

The primary legal issues were whether VCAT made an error in selecting an inapplicable consumer guarantee, whether it correctly applied the major failure analysis, and if it denied the applicant procedural fairness. Specifically, the court had to examine whether VCAT's reliance on section 56 of the ACL for determining a major failure was appropriate and if its conclusion that the caravan's risk of swaying constituted a major failure was reasonable. The court also assessed whether VCAT's orders exceeded its statutory authority.

In assessing the appeal, the court found that VCAT erred in applying the consumer guarantee and in its major failure analysis. It held that VCAT improperly relied on section 56 of the ACL for determining major failure and that its conclusion regarding the swaying risk was unreasonable. The court concluded that VCAT's orders were partly beyond its statutory powers, thus granting the appeal in part. The appeal was limited to the errors identified and did not extend to other findings or orders made by VCAT.

The final orders included the allowance of the appeal in part, setting aside certain parts of VCAT's decision, and remitting the matter back to VCAT for reconsideration in light of the court's findings. The court did not address the broader issues of procedural fairness and the ultra vires nature of VCAT's orders, as these were not the primary focus of the appeal.

Orders