| 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 |
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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] |
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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.
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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…
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- Case
- [2022] VSC 25
- Decision Date
CaseChat Overview and Summary
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.
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Background
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