Moore v Derm Pty Limited t/as Passport Caravans

[2017] NSWCATCD 87

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Moore v Derm Pty Limited t/as Passport Caravans [2017] NSWCATCD 87

Hearing dates:

30 August 2017

Decision date:

29 September 2017

Jurisdiction:

Consumer and Commercial Division

Before:

D. Moss, General Member

Decision:

1.  Derm Pty Limited trading as Passport Caravans is to pay Stephen Moore, the sum of $42,522.00 on or before 31 October 2017.

Reasons: $42,522.00 – (refund of purchase price of caravan ($41,800.00), plus $722.00 damages for consequential loss), for major failure to comply with consumer guarantees as to sale by description and acceptable quality.

2.  Within seven days of receiving payment as required by Order 1, Stephen Moore is to return the caravan to Derm Pty Limited trading as Passport Caravans..

3.  Upon return of the caravan, Stephen Moore is to give Derm Pty Limited trading as Passport Caravans all necessary documentation to transfer ownership of the caravan to Derm Pty Ltd trading as Passport Caravans.

Catchwords:

CONSUMER LAW – application for refund of purchase price and/or damages- alleged misrepresentation - alleged failure to comply with consumer guarantee under Australian Consumer Law (NSW) – acceptable quality – fitness for purpose - whether major failure to comply with consumer guarantee – whether new or second-hand motor vehicle .

Legislation Cited:

Fair Trading Act 1997 (NSW);
Australian Consumer Law (NSW);
Civil and Administrative Tribunal Act 2013 (NSW);
Civil and Administrative Tribunal Rules 2014 (NSW);
Motor Dealers and Repairers Act 2013 (NSW)

Category:

Principal judgment

Parties:

Stephen Moore, (“the consumer”), (the Applicant)
Derm Pty Limited trading as Passport Caravans (“the supplier”), (the Respondent)

Representation:

The Applicant appeared in person.
The Respondent was represented by Mr Forbes.

File Number(s):

MV 17/11309

Publication restriction:

Unrestricted

REASONS FOR DECISION

Application

1. On 3 March 2017, the Applicant filed an application seeking an order that the Respondent pay him $44,069.00, being a refund of the purchase price paid for the caravan plus damages for consequential loss or, alternatively, $16,708.00, in damages. When the documents in support of the making of the order sought were filed by the Applicant, the amount sought for damages was increased to $19,427.00.

2. The matter was listed on 12 April 2017. Conciliation was attempted but was unsuccessful.

3. Procedural directions were made for the filing and exchange of evidentiary documents.

4. The matter was listed for hearing on 30 August 2017.

Jurisdiction

5. In accordance with the Civil and Administrative Tribunal Act 2013 and the Fair Trading Act 1987, the NSW Civil and Administrative Tribunal, (“the Tribunal”), has jurisdiction to hear and determine an application by a consumer for determination of a consumer claim. A “consumer claim” means a claim by a consumer for a remedy, including the payment of a specified sum of money, that arises from a supply of goods or services, by a supplier in the course of a business, to the consumer.

6. The Applicant, (“Mr Moore”), entered into an agreement with the Respondent, (“Passport Caravans”), on 23 September 2016, for the supply of a Goldstar caravan, for a price of $42,000. Mr Moore took delivery of the caravan that day. Due to a noticeable problem with the awning, Passport Caravans reduced the purchase price to $41,800.00. Mr Moore paid the purchase price in full. The caravan was supplied in NSW. The caravan was supplied in the course of Passport Caravan’s business and GST was included in the purchase price.

7. The contract to which the claim relates was made in New South Wales and the goods were supplied in New South Wales.

8. The application was made within three years of the supply of the caravan, as required by the Fair Trading Act 1987.

9. Mr Moore seeks an order that Passport Caravans pay him a specified sum of money, namely $46,169.00, or $19,427.00.

10. The monetary jurisdictional limit of the Tribunal in relation to the supply of a new motor vehicle is unlimited. The monetary jurisdictional limit of the Tribunal in relation to the supply of a second-hand motor vehicle is $40,000.00.

11. If the caravan is a new motor vehicle, Mr Moore seeks a refund and damages totalling $46,169.00. If the caravan is a second-hand motor vehicle, Mr Moore seeks damages of $19,427.00.

12. The Tribunal has jurisdiction to hear and determine the application.

Evidence for the Applicant

13. Mr Moore took an affirmation to tell the truth and presented his case.

14. The following documents were received as evidence:

1. Two folders of documents filed on 30 May 2017.

2. Internet advertisement for sale of caravan.

3. Regulations 22 and 23 of the Motor Dealers and Repairers Regulation 2014 (NSW).

4. Fair Trading Fact Sheet on Repairs, Refunds, Replacements and a Guide on Consumer Guarantees for Businesses and Legal Practitioners.

15. Mr Moore gave further oral evidence in support of his application.

16. Mr Moore sought a full refund of the purchase price paid, ($41,800.00), plus damages, because he believes that the caravan is not fit for purpose and not of acceptable quality. Mr Moore also alleged that the caravan was represented to be a “new Jan 2016” model, but was, in fact a 2015 model. Mr Moore submitted that the problems associated with the caravan are a major failure under the Australian Consumer Law. He is therefore entitled to cancel the contract and seek a refund.

Evidence for the Respondent

17. Mr Forbes took an affirmation to tell the truth and presented the case on behalf of the Respondent.

18. A bundle of documents, filed on 30 June 2017, was received as evidence for the Respondent. The documents included Mr Forbes’ affidavit with annexures.

19. Mr Forbes submitted that the caravan was fit for purpose and of acceptable quality on the day that it was supplied to Mr Moore. Mr Forbes denied that there was any misrepresentation made about the caravan. Mr Forbes stated that, if there is a problem with the caravan, Passport Caravans and/or Shamrock Caravan Workshop are, and have always been, willing to repair the caravan.

THE DECISION

Background

20. On 6 August 2016, the consumer, Mr Moore, saw a post on the internet advertising a Goldstar RV 21 foot family van for sale.

21. The caravan’s condition was described as:

“New: A brand-new, unused, unopened, undamaged item.”

22. The caravan was described as:

“Brand New, Ex Display Goldstar RV 21 ft Family Van”

“This van sells for $57K + direct from the seller, with all of the extras this one has. Must sell quickly, so price slashed. Never registered, never used, 1/2016 build. Manufacturer warranty.”

23. Mr Moore contacted Mr Forbes about the Goldstar 21 ft caravan by e-mail on 18 August 2016. He asked Mr Forbes if he would consider a trade-in, (a 2011 Jayco Dove camper-van), plus cash. Mr Forbes was not interested in a trade-in.

24. On 31 August 2016, Mr Moore asked Mr Forbes to hold the caravan for him, if he put down a non-refundable deposit. Mr Forbes agreed and sent Mr Moore a tax invoice, issued by Passport Caravans, dated 1 September 2016. The invoice noted that Mr Moore had agreed to purchase a 2016 Goldstar RV 21 ft caravan for $42,000.00, inc GST. The invoice also stated the following:

“This caravan is ex display, and, as such, may have marks/scratches/etc. If there are any failures with the caravan or appliances, please contact GOLDSTAR RV, the manufacturer of this Caravan, as it is covered by manufacturers warranty. It has been recommended that the purchaser buys an additional 12/24/36 or 60 month extended warranty provided by Australian Warranty Network, but this option has not been taken up at this time.

When a non-refundable, $2000 deposit is received, this Caravan will be removed from sale, and held until 25 September 2016, at which time, unless previously notified by the purchaser, it will be put back on sale, and the deposit forfeited.”

25. Mr Moore requested that Mr Forbes add the inclusions specified in the internet advertisement, including the 15 foot roll out awning, to the tax invoice.

26. Shamrock Caravan Workshop fitted the TV antenna, water heater, Break-away brakes system and connected the electric brakes to the Goldstar caravan. Stephen Patterson of Shamrock Caravan Workshop provided a typed, unsigned and undated statement, that the work was tested and all electrics, trailer lights, brakes and Break-away brakes, were wired as per Australian Standards. The trailer plug was checked and was found to be wired as per the international universal code.

27. Shamrock Caravan Workshop overhauled the caravan, ensuring that it was in a roadworthy condition and capable of meeting registration inspection requirements. A road test was undertaken and the caravan performed perfectly, with all lights and brakes working correctly. The towing vehicle’s trailer plugs were also wired as per the international universal code.

28. The Breakaway system worked correctly at the time of testing, which was within 24 hours of being handed back to Passport Caravans. The Breakaway brake system had an on-board battery that had sufficient charge and worked correctly at the time of testing.

29. Mr Moore met Mr Forbes on the afternoon of 23 September 2016. Mr Moore inspected the caravan. Mr Forbes pointed out that the awning was damaged and offered to take $200.00 off the agreed price of the caravan. Mr Moore paid the Respondent the balance of $39,800.00 by electronic funds transfer and took delivery of the caravan. Mr Forbes gave Mr Moore a tax invoice in the sum of $42,000.00. The total amount paid by Mr Moore for the caravan was $41,800.00.

30. Mr Moore alleges that the Respondent did not provide a Form 9 with the caravan, being a Motor Dealer’s Notice for Motor Vehicles (Trailers and Towable Recreation Vehicles), as legally required. Mr Forbes gave evidence that he did provide a Form 9 to Mr Moore. A copy of the Form 9 was provided in the Respondent’s documents (Annexure “E”).

31. Mr Moore’s signature appears on the Form 9 in three places. Mr Moore gave evidence that his signatures on the form have been forged. It appears to the Tribunal that Mr Moore’s signatures have been traced onto the Form 9.

32. Mr Moore referred the Tribunal to the Motor Dealers and Repairers Regulation 2014 (NSW) that provides:

22   Form of notices generally

All dealers’ notices required to be given by a motor dealer, or attached to a motor vehicle before offering or displaying a motor vehicle for sale, are to be in writing in the following form:

(a) a notice from a book of notices that complies with this Part,

(b) a notice printed by means of data processing equipment that complies with this Part.

23    Dealer’s notices produced from a book

A dealer’s notice that is produced from a book of notices must be taken from a book, or a series of book, that comply with the following requirements:

1. each book must include an original and 2 copies of each notice contained in it, where the originals of each notice are permanently bound together,

2. each book must bear on its front cover a number corresponding to its number in the series (such as Book 1, Book 2 and so on),

3. each book must be used for the purposes of one kind of notice and no other.

24   Dealer’s notices produced by means of date processing equipment

A dealer’s notice produced by means of data processing equipment must be produced by means of software that ensure that the notice:

1. is in a format that is capable of being displayed and printed, on demand , at each place of business at which the motor dealer is licensed to carry on the business of a motor dealer, and

2.   when so displayed or printed, each page is in the prescribed form, and

3. is not capable of being amended or deleted, so that any change in the information in the notice has to be effected by creating a new notice, and

Includes the date on which each notice was produced.

33. Mr Moore alleged that the Form 9 provided by the Respondent appeared to have been downloaded from the internet. Mr Forbes gave evidence that he did download the form from the internet, but there was nothing wrong with that.

34. The Form 9 states that it is from Book Number 004, Entry Number 1, Form Number 1.

35. The Form 9 does not specify the dealer licence number.

36. The Form 9 does not specify the date of sale.

37. The Form 9 stated that the date of manufacture (year and month) was 01/2016.

38. The Form 9 contains the following information:

Imported second-hand vehicle information [Dealer to strike out if not applicable]

This is a second-hand vehicle imported by the dealer or purchased by the dealer from a registered importer and a copy of the vehicle’s Consumer Information Notice, issued in accordance with the Motor Vehicle Standards Regulations 1989 of the Commonwealth, is attached.

39. There is no Consumer Information Notice, issued in accordance with the Motor Vehicle Standards Regulations 1989 (Cth), attached to the Form 9.

40. Mr Forbes helped Mr Moore check the lights and noticed that the lights on the caravan were not working as they should. Mr Moore performed some work on the wiring and drove the caravan away.

41. Mr Moore noticed that the caravan brakes were not working when adjusted to full on the car brake controller. He telephoned Mr Forbes. Mr Forbes told Mr Moore to take the caravan to Shamrock Caravan Workshop on Monday 26 September 2016.

42. Mr Moore took the caravan to a caravan park. He noticed that the glass shower screen was broken, there was a dent in the wall and the shower rose holder was broken. Mr Moore also observed that water pooled outside the shower, next to the washing machine.

43. It rained overnight and on Saturday morning, Mr Moore noticed water dripping from inside the air-conditioner, roof-hatch and water tank. There was condensation in the strips across the ceiling. Mr Moore attached a gas bottle and noticed that the hot water service and the stove did not work.

44. Mr Moore arranged for a mechanic, Leigh White, to inspect his car and the caravan to find out why the electric brakes would not work on the car when the caravan was connected. Mr Moore paid Mr White $250.00.

45. Mr Moore also arranged for NRMA Road-side Assistance to attend and inspect the caravan. NRMA advised Mr Moore to take the car and caravan to an auto-electrician.

46. Mr Moore telephoned Mr Forbes on Sunday 25 September 2016. Mr Forbes offered to sell Mr Moore extended warranty insurance, at a cost of between $1,200.00 and $1,900.00. Mr Moore alleges that Mr Forbes fraudulently offered to back-date the extended warranty insurance policy to the date of supply of the caravan. Mr Moore did not purchase the extended warranty insurance offered by Mr Forbes.

47. On Monday 26 September 2016, work was performed on Mr Moore’s car by Long Jetty Auto Electrics, at a cost of $460.00.

48. On the same day, NRMA Roadside Assistance repaired the faulty trailer plug wiring and rewired the break-away unit on the caravan. The serviceman noted that the power from the break-away was going to the service brake wire, instead of the break-away switch, then to the services brake harness. The near-side upper stop tail-light was also wired up in reverse.

49. After the wiring was repaired, Mr Moore towed the caravan home to Victoria.

50. On 29 September 2016, Mr Moore took the caravan to May West Caravans. Mr Moore supplied the Tribunal with an undated, unsigned report from May West Caravans that stated:

“In consultation with an industry engineer, it is my opinion that this Caravan is not suitable for registration.

It does not comply within a number of arrears including:

1.   Wiring.

2.   External clearance lights (installation as well as ADR    compliance).

3.   Lack of reflectors to comply.

4.   The size of gas line to the caravan.

5.   The gas compliance label date compared to manufacturing date.

6.   The lack of mudflaps.

7.   The clearance between body and the protrusion of wheels.

8.   Electric Fridge with an inverter installed.

9.   Unknown brand of air conditioner.

10.   Dubious hot water service which may be a copy of an original product.

11.   Wiring running through caravan via false shelving where hands can be accessed.

This product has a compliance plate of 2016 where the gas plate states 2015.”

51. Mr Moore lodged a complaint with NSW Fair Trading on 16 October 2016.

52. Mr Moore provided extracts from NSW Fair Trading’s investigation as part of his evidentiary documents.

53. Goldstar RV Pty Ltd, the manufacturer of the caravan supplied to Mr Moore, provided the following information to Fair Trading by e-mail on 11 November 2016:

“Please be advised that Passport Caravans purchased a small number of caravans (4) vans directly from our factory in China in early 2015. Usually these caravans were incomplete and without VIN numbers. Passport Caravans were supposed to gain their own caravan manufacturing approvals, however this was not done as they were not to continue trading. They asked and we agreed to issue the vin plates which we did in January 2016.

The plate number we issued is 6T9T2100SG04XF006”

54. The VIN plate number is the same as the VIN plate attached to Mr Moore’s caravan.

55. A customer service officer from Fair Trading also spoke to Brendan Matheson, gas fitter, from B M Plumbing & Maintenance, on 2 December 2016. Mr Matheson advised that he carried out the gas installation on Mr Moore’s caravan on 28 October 2015. He stated that he was instructed by Mr Forbes to only connect the stove and nothing else. Mr Matheson assumed that Mr Forbes did not want to spend too much money on the rest of the installation.

56. On 2 December 2016, a Senior Motor Inspector from Fair Trading spoke to Mr Forbes by telephone. Mr Forbes stated that if Mr Moore brought the caravan back to where it was purchased and demonstrated the defects, Mr Forbes would carry out the repairs on the spot, or issue a full refund, no questions asked.

57. On 8 December 2016, Mr Moore sent Mr Forbes an e-mail offering to return the caravan a few days before Christmas, or after Christmas, on a day and at a time that suited Mr Forbes, in order to receive a refund.

58. On 9 December 2016, Mr Forbes sent Mr Moore the following e-mail:

“Stephen, I did not say that at all. I did tell him that when you first started complaining, I offered to take it back from you, and refund your money on the spot, but you refused.

What I offered, was that you return the Caravan to the workshop that you purchased it from, allow them to inspect it, and if they determine that there are any faults, I would pay to have them rectified, or if there was no noticeable wear and tear on the caravan since you purchased it 3 months ago, I would purchase it back from you.

Firstly, you did not pay the full $42,000, as well you know. Secondly, I offered to you, when you purchased what was identified as a second hand, that you could bring it back on Monday morning, and have the workshop check it over. You refused this offer, and instead drove off with it on a holiday. Please be aware, that I still have the sms confirming this.

Your report from a Caravan Retailer proves nothing Stephen, as you well know. If you are relying on such a report as any sort of evidence, I look forward to you producing such in a Court situation, as it will give me the opportunity to tear it apart.

As you hilariously refer to Consumer Law, you must surely be aware that under Consumer Law, you must refer any issues you have with the product to the Seller first, before taking this to any other body, something you have failed to do.

Lets be honest Stephen, what is most likely is that you have been unable to sell the Camper Trailer you were trying to sell me as a trade in, and are now short of money. Your vehicle is not capable of towing the caravan, as was clearly evidenced by the unsafe angle you towed it away on. You initially claimed that the brakes didn’t work and then set about rewiring the caravan yourself, despite the brakes working perfectly on other tow vehicles, and on test equipment immediately prior to your purchase.

Thank you very much for the 50+ photos. I do not know what they are in any way supposed to show, but they do show that you have been using the oven/stove, which was previously unused.

I did not sell this caravan to you to use for three months, then return when you decided you had had enough. I do not run a free hire service.

I have all the paperwork to back up that you were fully aware you purchased an unregistered, used Caravan. Should you choose to not take up my generous offer, of having the workshop look at your caravan, then I will consider this matter resolved, as that is all that I am required to do (maybe even more than).”

59. On 2 March 2017, Mr Moore made an application to the Tribunal for an order that Passport Caravans pay him $44,069.00, (the full amount paid for the caravan plus associated costs), or $16,708.00 (being the cost of repairs).

60. Mr Moore alleged that the caravan supplied to him was not as advertised, or as per the tax invoice. The caravan was advertised as a new Jan 2016 model, but it was, in fact, a 2015 model. The awning supplied with the caravan was smaller than advertised (not a 15 foot roll out awning as specified on the tax invoice).

61. Mr Moore alleged that the caravan was not fit for purpose and had many defects.

62. Mr Forbes submitted that Passport Caravans is willing to have the caravan repaired, if Mr Moore brings it back to the Passport Caravans, or to Shamrock Caravan Repairs.

Is the caravan a new motor vehicle?

63. The Tribunal has an unlimited monetary jurisdictional limit in respect to claims relating to new motor vehicles that are used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988, in accordance with Section 79S of the Fair Trading Act 1987.

64. A “new motor vehicle” means a motor vehicle that is not a second-hand vehicle within the meaning of the Motor Dealers and Repairers Act 2013.

65. A motor vehicle includes a trailer on wheels, other than a vehicle used on a railway, tramway, or an aircraft.

66. A “second-hand motor vehicle” includes a motor vehicle that, at any time before being offered or displayed for sale, or sold, has been registered to a person other than the purchaser, (emphasis added), and includes a demonstrator motor vehicle.

67. A “demonstrator motor vehicle” means a motor vehicle that has been used only for a purpose connected with its manufacture, or sale, or for the purpose of demonstrating the motor vehicle, or a motor vehicle of that kind, to a potential purchaser; that has not been sold to a person other than a motor dealer; and that has been registered only in the name of a motor dealer, a person on behalf of a motor dealer, or another person in anticipation of the sale of the motor vehicle to that person.

68. There is no evidence that the caravan had been registered to a person other than the purchaser, Mr Forbes.

69. The Tribunal is satisfied that the caravan was not a second-hand caravan.

70. The Tribunal finds that the caravan was a new motor vehicle within the meaning of the Fair Trading Act 1987 and the Motor Dealers and Repairers Act 2013.

Was there a misrepresentation made about the caravan?

71. Mr Moore gave evidence that he responded to an advertisement on eBay and the Trading Post. The advertisement is included as Exhibit A in Mr Moore’s folder of documents.

72. Mr Forbes denied that that the advertisement related to the caravan supplied to Mr Moore.

73. Having considered this matter very carefully, the Tribunal is not satisfied on the balance of probabilities that the advertisement supplied in the documents specifically related to the caravan supplied to Mr Moore.

74. The caravan supplied to Mr Moore was described in the tax invoice dated 23 September 2016 as “1 x 2016 Goldstar RV 21ft Caravan”. Mr Forbes gave evidence that the 2016 trailer plate is compliant and that he has no control over, or say in, the plates provided by the manufacturer. He stated, “It has nothing to do with me.”

75. The Tribunal finds that Passport Caravans purchased four caravans directly from the Goldstar RV factory in China in 2015. One of those caravans was subsequently sold and supplied to Mr Moore. The Tribunal finds that the caravan was manufactured and supplied to Passport Caravans in 2015. It was not a 2016 model. Goldstar RV Pty Ltd supplied the VIN plate to Passport Caravans in January 2016.

76. The Tribunal finds that Passport Caravans made a misrepresentation to Mr Moore on the tax invoice that the caravan was a 2016 model.

77. The Tribunal is also satisfied on the balance of probabilities that the representation on the tax invoice supplied by Passport Caravans that the caravan had a 15 foot roll out awning was untrue.

Was the caravan of acceptable quality?

78. Section 54 of the Australian Consumer Law (NSW), “ACL (NSW)”, is in the following terms:

Guarantee as to acceptable quality

(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 qualityif they are as:

(a)  fit for all the purposes for which goods of that kind are commonly supplied; and

(b)  acceptable in appearance and finish; and

(c)  free from defects; and

(d)  safe; and

(e)  durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3)  The matters for the purposes of subsection (2) are:

(a)  the nature of the goods; and                 

(b)  the price of the goods (if relevant); and

(c)  any statements made about the goods on any packaging or label on the goods; and

(d)  any representation made about the goods by the supplier or manufacturer of the goods; and

(e)  any other relevant circumstances relating to the supply of the goods.

(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.

79. The Tribunal finds that the caravan was supplied to Mr Moore by Passport Caravans in trade and commerce.

80. The Tribunal finds that Mr Moore is “a consumer” within the meaning of the ACL (NSW), as the goods were of a kind ordinarily acquired for personal, domestic, or household use or consumption.

81. The supply did not occur by way of sale by auction.

82. In accordance with Section 54 of the ACL (NSW), there is a guarantee that the caravan is of acceptable quality.

83. Mr Moore provided the Tribunal with a copy of an expert witness report from Colin Young, an automotive engineer. Mr Young inspected the caravan supplied by Passport Caravans to Mr Moore on 20 May 2017.

84. In Mr Young’s opinion, a serious question remains regarding the VIN and the date of manufacture of the caravan. When offered for sale, the VIN was not stamped on the chassis. The stated date of manufacture of the caravan, 01-2016, is later than the dates stated for two similar caravans of the same make with earlier VINs.

85. The caravan was supplied with only one safety chain and without mandatory reflectors fitted. The wiring for the lighting is not correct and poses a serious safety risk.

86. The caravan is seemingly not compliant with gas and electrical regulations, which may well present serious safety hazards.

87. The Tribunal accepts the report from Mr Young. Mr Moore has also supplied other evidence of defects with the caravan, from May West Caravans and as detailed in his own affidavit. The Tribunal finds that the caravan supplied to Mr Moore was not free from defects on the date it was delivered.

88. The Tribunal finds that no examination that Mr Moore may have made of the caravan on the delivery date would have revealed all of the defects.

89. Mr Moore was warned in writing, that the caravan may have “marks/scratches/etc”. There were no other reasons as to why the caravan may not have been of acceptable quality specifically drawn to Mr Moore’s attention before he agreed buy it.

90. There were no reasons as to why the caravan may not have been of acceptable quality disclosed on a written notice that was displayed with the caravan.

91. Other than working on the wiring, there is no evidence that Mr Moore caused the caravan to become of unacceptable quality, or failed to take reasonable steps to prevent it from becoming of unacceptable quality.

92. There is no evidence that the caravan was damaged by abnormal use.

93. The question of whether or not goods are of acceptable quality is to be determined as of the date when the goods were supplied to the consumer. However, the determination of what a reasonable consumer, fully acquainted with the state and condition of the goods, (including any hidden defects in the goods,) would regard as acceptable, must include a consideration of all of the relevant information available at the time of the hearing, including information about the goods that was not known at the time that the goods were supplied.

94. The Tribunal has regard to the nature of the goods, the price of the goods and all other relevant circumstances, including the kind of defects, and the periods of use of the goods before the defects presented.

95. The caravan was purchased for a cost of $41,800.00 on 23 September 2016. Many defects became apparent within one month after supply.

96. The Tribunal finds that the caravan has the following defects:

1. Reflectors are not fitted;

2. Only one, non-compliant safety chain is fitted;

3. The wiring for the lighting is incorrect and poses a serious safety risk;

4. The caravan is not compliant with gas and electrical regulations;

5. The electrical wiring for the range-hood is unsafe;

6. The alignment of wheels/axles is incorrect and impairs handling;

7. The suspension leaf-spring was not correctly or safely installed;

8. Rust is present;

9. The microwave oven has not been securely installed.

97. 96   The Tribunal finds that the totality and cumulative effect of all of the defects is substantial and of concern.

98. Taking into account all of the circumstances of the case, the Tribunal finds that the caravan supplied by Passport Caravans to Mr Moore was not of acceptable quality, because it was not free from defects, on the date it was supplied, as a reasonable consumer, fully acquainted with the state and condition of the caravan, (including any hidden defects), would regard as acceptable. Therefore, the caravan did not satisfy the requirements of the consumer guarantee as to acceptable quality set out in 54(2)(c) of the ACL (NSW).

Was the failure to comply with the guarantee as to acceptable quality a major failure?

99. Mr Moore submitted that there has been a major failure to comply with the consumer guarantees, as the caravan is unsafe; it is significantly different from its description; it can’t be easily fixed; it has a problem that would have stopped someone buying it if they’d known about the problem.

100. Section 259 of the ACL (NSW) relevantly provides:

(3)   If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for rejection; or

(b) by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.

(4)   The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

101. Section 260 of the ACL (NSW) sets out the alternative tests for determining whether a failure to comply with a consumer guarantee is major:

A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:

(a)   the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)   the goods depart on one or two or more significant respects:

(i)   if they were supplied by description – from that description; or

(ii)   if they were supplied by reference to a sample or demonstration model – from that sample or demonstration model; or

(c)   the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(d)   the goods are unfit for a disclosed purpose that was made known to:

(i)   the supplier of the goods;

(ii)   or a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made, and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e)   the goods are not of acceptable quality because they are unsafe.

102. The Tribunal finds that the caravan departed in a significant respect from its description. The Tribunal is satisfied that the caravan was manufactured in 2015, not 2016. In accordance with Section 260(b)(i) that is a major failure to comply with the consumer guarantee.

103. Is the failure to comply with the consumer guarantee a major failure because the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure? In “Australian Consumer Law Commentary and Materials”, (Fourth Edition), Corones and Clarke state at page 476:

“In relation to s260(a), the matters that a reasonable consumer would take into account include:

how soon the fault developed after supply: the shorter the time the more serious the fault;

the price of the goods: the more expensive the goods, the less acceptable is any fault;

any representations made about the goods by the supplier or manufacturer, either orally or in the advertising or packaging;

any other faults with the goods: a number of small faults may not be serious, but their cumulative effect may be major.”

104. The Tribunal finds that Mr Moore would not have acquired the caravan if he had been fully acquainted with the nature and extent of the failure to comply with the consumer guarantee as to acceptable quality at the time of delivery.

105. The Tribunal finds that the caravan would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures.

106. The Tribunal is satisfied that the failures to comply with the consumer guarantees of sale by description and acceptable quality are major failures.

Has Mr Moore established an entitlement to a refund from Passport Caravans?

107. As the failures to comply with the consumer guarantees were major failures, Mr Moore was entitled to notify Passport Caravans that he rejected the caravan and the grounds for his rejection. Mr Moore was then required to return the caravan to Passport Caravans, in accordance with Section 263(2) of the ACL (NSW).

108. The Tribunal finds that Mr Moore notified Passport Caravans that he rejected the caravan and the reasons for his rejection. In an e-mail sent to Passport Caravans on 8 December 2016, Mr Moore stated:

“I have been given the good news, just before Christmas, that you have agreed to pay back in full the $42,000 paid for the 2016 21ft Caravan I bought from you.

Craig Rory (Automotive Engineer Inspector) from NSW Fair Trading said that you have “offered recession of sale with no questions asked” and you will transfer the money on the spot into my account upon returning the caravan. This will work out well as I regularly visit family in Sydney and I will be able to so during these school holidays.

NSW Fair Trading has done a great job to mediate this outcome because under Australian Consumer Law you’re obligated to resolve this issue of an unfit for purpose caravan. The proof of the caravan problems are listed in a report from May West which I will also email you their report.

I suggest that I return the caravan a few days before Christmas or after Christmas, on a day and time that suits you. Can you please advise as to a suitable time and the location that you would like the caravan returned to?

I look forward to resolving this issue soon.”

109. Mr Forbes from Passport Caravans sent the following e-mail in reply to Mr Moore on 9 December 2016:

“Stephen. I did not say that at all. I did tell him that when you first started complaining, I offered to take it back from you, and refund your money on the spot, but you refused.

What I offered, was that you return the Caravan to the workshop that your purchased it from, allow them to inspect it, and if they determine that there are any faults, I would pay to have them rectified, or if there was no noticeable wear and tear on the caravan since you purchased it 3 months ago, I would purchase it back from you.”

110. On 3 March 2017, Mr Moore filed this application for an order by the Tribunal. He sought a refund of the purchase price of the caravan. He specified the grounds for seeking a refund in the application.

111. The Tribunal finds that Mr Moore notified Passport Caravans of his rejection of the goods and the grounds for his rejection of the goods. The Tribunal finds that Mr Moore was willing to return the goods to Passport Caravans, if Passport Caravans agreed, or was ordered to pay him, a refund.

112. The grounds required to make an order that Passport Caravans refund Mr Moore the purchase price of the caravan have been established.

Consequential loss and damage

113. Section 259(4) of the ACL (NSW) provides that a consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee of acceptable quality, if it was reasonably foreseeable that the consumer would suffer loss or damage as a result of such a failure.

114. Mr Moore sought damages for consequential losses in the application.

115. Mr Moore sought to recover damages for the following:

May West Caravans Report 4.10.16      $222.00

Colin Young Engineer Report 25.05.17   $500.00

Ken Tame Insurance            $574.80

CMCA membership to get insurance      $75.00

Extra Care RACV (or NSW NRMA) 23.09.16 $191.53

NSW Fair Trading Case Report      $30.00

Interest on borrowings $42,000 @ 5% $2,100.00

116. After carefully considering all of the evidence and the submissions, the Tribunal finds that Mr Moore is entitled to recover damages against Passport Caravans for the following:

1. Report from May West Caravans      $222.00

2. Report from Colin Young Engineer   $500.00

117. The Tribunal finds that Mr Moore obtained benefits from the policy of insurance and the RACV membership. The grounds required to order Passport Caravans to compensate him for these costs have not been established.

118. Mr Moore did not provide evidence in support of his claim for interest at 5% per annum. This claim has not been established.

119. Mr Moore is either entitled to a refund of the purchase price, or the cost of repair of the caravan, not both. He has chosen a refund.

Conclusion

120. The Tribunal finds that the caravan was supplied by description. The Tribunal finds that the caravan departed from the description in one significant respect i.e. the caravan was described as 1/2016 build. The Tribunal is satisfied that the caravan was actually manufactured in China in 2015. It was not built in January 2016.

120. The Tribunal finds that the caravan was not of acceptable quality when it was supplied to Mr Moore, because it had a number of defects.

121. The Tribunal finds that the failures to comply with the consumer guarantees of sale by description and acceptable quality were major failures, as the Tribunal is satisfied that the caravan would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures.

122. The Tribunal finds that Mr Moore advised Passport Caravans that he rejected the caravan and the reasons for his rejection, and requested a refund.

123. The Tribunal finds that Mr Moore is entitled to a refund of the purchase price and to consequential damages.

D Moss

General Member

Civil and Administrative Tribunal of New South Wales

29 September 2017

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 November 2017