Nowlan v HA Caravans Pty Ltd t/as Kane Wiseman Home + Away RVs
[2024] QCAT 583
•16 December 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Nowlan v HA Caravans Pty Ltd t/as Kane Wiseman Home + Away RVs [2024] QCAT 583
PARTIES:
SUZANNE NOWLAN (applicant)
v
HA CARAVANS PTY LTD T/AS KANE WISEMAN HOME + AWAY RVS (respondent)
APPLICATION NO/S:
MVL071-23
MATTER TYPE:
Motor vehicle matters
DELIVERED ON:
16 December 2024
HEARING DATE:
11 October 2024
HEARD AT:
Brisbane
DECISION OF:
Member Jensen
ORDERS:
HA Caravans Pty Ltd t/as Kane Wiseman Home + Away RVs is required to pay Suzanne Nowlan the amount of $7,000 within 28 days of the date of this order.
CATCHWORDS:
TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether caravan of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to damages
Australian Consumer Law, s 54, s 259, s 260
Competition and Consumer Act 2010 (Cth), Schedule 2FairTrading Act 1989 (Qld), s 50A, s 50C
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Issues
The issue for determination is whether the applicant is entitled to damages under the Australian Consumer Law (the ‘ACL’) with respect to repairs carried out on a Sport Poptop caravan registration number 467 QXU (the ‘caravan’) purchased by the applicant from the respondent.
The following issues are also raised in the matter:
(a)are the sale contract terms material to the decision?
(b)what is the effect of a sale on consignment?
(c)did the involvement of the field mechanic affect things?
(d)did vibration on the road cause the wheel nuts to come loose?
It is common ground that a statutory warranty does not apply in this matter.
Jurisdiction
Pursuant to section 50A of the Fair Trading Act1989 (Qld), the Tribunal is vested with jurisdiction in relation to motor vehicles in respect of certain actions under the ACL. A motor vehicle is defined in section 12(1) of the Motor Dealers and Chattel Auctioneers Act2014 (Qld) to include a caravan.
Evidence
The applicant gave the following relevant evidence:
(a)The applicant purchased the caravan from the respondent on 10 January 2023 for $16,000 to travel and live in. The respondent’s place of business is Deception Bay;
(b)On the day of purchase, the applicant drove directly from Deception Bay to Rockhampton pulling the caravan for approximately seven hours. Approaching Rockhampton, the applicant noticed a vibration coming from the caravan. The applicant stopped on the side of the road and called for assistance. The applicant states that she drove along the highway and did not hit any rocks or anything else that may have caused the vibration from the loose wheel on the caravan. The applicant purchased grease at a nearby shop and telephoned a field mechanic who came to roadside, took off the tyre, worked on the wheel and applied grease to the hub;
(c)The applicant continued on her way and pulled up for a sleep for the night and then continued towards Carmila the next morning;
(d)Just outside of Carmila, the wheel went wobbly, came off and got stuck underneath the caravan and caused damaged to its rear;
(e)The caravan was towed to the Carmila Mechanical premises, Carmila where it remained for several days. Carmila Mechanical were not able to carry out any work on the caravan. The applicant then had the caravan towed to Mackay Caravan Repairs where Mr Ziegler repaired it.
(f)The applicant states that Mr Ziegler spoke to the effect that “the hubs are shot” and that he expressed surprise that the caravan made it as far as Rockhampton.
(g)The applicant states at Part F of the application that before purchasing the caravan, the respondent’s representative told her to the effect that the “getaway caravan is a good safe caravan.”
(h)She further states that she paid $16,000 for a “safe caravan to travel [but] was sold a dud caravan”. At Part G, the applicant states that the “Getaway caravan was not fit to be driven to a place for a roadworthy to be obtained.”
(i)The applicant provided receipts to the value of $7,000 for repair costs.
(j)In cross examination, the applicant rejected the suggestion that the caravan wheel nuts had become loose over time through the vibrations of the road or that the field mechanic’s intervention was the cause of the wheel coming off.
In its response filed in the Tribunal on 1 August 2023, the respondent agreed that the:
(a)applicant purchased the caravan on 10 January 2023, but stated it was sold on consignment;
(b)applicant contacted a field mechanic in or around the Rockhampton area (as per receipts);
(c)wheel did come off the caravan after the mobile mechanic had checked the loose wheel;
(d)applicant organised Carmila Towing Services to tow the caravan to the Carmila workshop; and
(e)applicant paid for the caravan to be towed from the Carmila workshop to Mackay Caravan Repairs (as per receipts).
In cross examination of the applicant, the respondent claimed that the wheel nuts had become loose over time through vibrations on the road and that the field mechanic’s work on the wheel was possibly the cause of the wheel subsequently coming off.
Claims made by the respondent and put to the applicant in cross examination are assertions; they are not evidence. No expert evidence was provided by the respondent in support of these claims.
During cross examination, the respondent referred to and relied on evidence of photographs of the caravan, the wheel, a hub and nuts provided by the applicant. The applicant rejected the respondent’s claims and stated that the photographs supported her application. In particular the respondent referred to the photograph on page 26 of the photographs in the application. The applicant states that this photograph shows grease that she purchased at the first stoppage, and which was applied by the field mechanic to the outside of the drum. The respondent admitted that the photograph shows grease and said that there was no way to tell from the photograph if it was applied before or after the field mechanic’s work. However, I find the applicant to be a reliable witness and I find that the grease shown in the photograph is the grease she purchased and which was applied by the field mechanic.
The respondent also suggested the photograph on page 26 showed that the field mechanic had over-tightened the nuts which stripped the wheel studs leading to the wheel coming off and the subsequent major problem. However, I am not satisfied that this photograph is reliable evidence of this claim. I am satisfied that the photograph shows the grease, but I am not satisfied that an over-tightening of the nuts is depicted in the photograph. In any event, it is the applicant’s case that the caravan was unsafe from the outset and not just subsequent to the field mechanic’s work.
I therefore find the photographs do not support the respondent’s claims.
By contrast, the applicant gave evidence under oath of what Mr Ziegler said in relation to the condition of the caravan being “shot” and his surprise that the caravan made it as far as Rockhampton. Although the evidence of Mr Ziegler was not given by him but was given through the applicant, I am satisfied that the applicant is a credible witness and that her evidence is reliable. I therefore place a lot of weight on it and find that the caravan was in an unsafe condition at the time of purchase.
I also accept the evidence of the receipts provided by the applicant to the value of $7,000 as showing the costs of the repairs. This evidence was not challenged by the respondent and accordingly, I find that the applicant has incurred expenses in the repair of the caravan with Mackay Caravan Repairs to the value of $7,000.
Consumer guarantees
A pre-requisite of the ACL is that goods must have been acquired as a consumer. Pursuant to section 3(1)(b) of the ACL, a person is taken to have acquired goods as a consumer “if the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption.” I find that this includes a caravan.
Furthermore, the evidence of the dealings between the parties, the receipt (which provides at the foot of the page: “Thank you for supporting a family business”), the contract of sale, the terms and conditions of sale, and the dealer’s trust account receipt establish that the caravan was supplied to the applicant in trade or commerce and I find accordingly.
The evidence for the respondent is that it sold the caravan on consignment. Even if that were the case, any consignment arrangement between the owner of the caravan and the respondent will not relieve the respondent of its obligations under the ACL as a supplier of goods.[1]
[1]ACL, Schedule 2 definition of “supply”.
At Part C of the Response, the respondent relies on the terms of the contract to limit or exclude liability to the applicant. However, section 64 of the ACL provides that the consumer guarantees cannot be excluded by contract.
Section 54(1) of the ACL provides that where a person supplies goods in trade and commerce, the goods are guaranteed to be of acceptable quality. The time at which the goods are to be of acceptable quality is the time they are supplied to the consumer.[2]
[2]Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64].
Sections 54(2) and (3) of the ACL define acceptable quality as follows:
(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.
The respondent states that the sale price was reduced from $18,999 to $16,000 because the applicant agreed to organise her own roadworthy, gas certificate and registration. I take this into account and also the fact that the caravan was not new. Nevertheless, I do not consider that a reasonable consumer would expect to purchase a caravan which was in such an unsafe condition as this one, as at the time of purchase.
On the material before me, I find that a reasonable consumer fully acquainted with the state of the caravan at the time of purchase would not regard the caravan as safe and durable.
Remedies
The remedy available to the applicant against the respondent depends on whether the failure is a “major failure.” The term is defined in section 260 of the ACL as follows:
(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 in one 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; or
(ii)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.
I find that the failure was a major failure for the following reasons:
(a)The unsafe condition of caravan at the time of purchase as per the applicant’s evidence of what was said by Mr Ziegler is such that a reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired the caravan;
(b)The caravan had to be towed from Carmila Mechanical to Mackay Caravan Repairs where Mr Ziegler carried out the repairs; and
(c)The cost of repairs claimed by the applicant is substantial when compared to the purchase price of the caravan.
The remedies for a major failure are:
(a)under section 259(3) of the ACL,
(i) reject the caravan and choose a refund or replacement; or
(ii) keep the caravan and recover compensation for any reduction in value of the caravan.
(b)under section 259(4) of the ACL, recover damages because of the failure of the goods to comply with the guarantee provided the loss was reasonably foreseeable.
The remedies under section 259(3) of the ACL cannot be applied. The remedy of a refund or replacement caravan is not applicable because the applicant kept the caravan and did not reject it. The remedy of compensation is not available either because there is no evidence before me of any reduction in its value.
Turning to the remedy under section 259(4) of the ACL, at Part D of the application, the applicant has ticked the box which refers to section 50A of the Fair Trading Act 1989 (Qld). This provision relevantly states that:
(1) A person may apply, as provided under the QCAT Act, to the tribunal for an order mentioned in subsection (2) for an action—
(a)under a provision of the [ACL] (Queensland) listed in the table to this section; and
(b)relating to a motor vehicle; and
(c)seeking an amount or value of other relief of not more than $100,000.
(2) In a proceeding under subsection (1), the tribunal may make only the following orders—
(a)an order requiring a party to the proceeding to pay a stated amount to a stated person;
…
Section 259(4) of the ACL is one of the provisions of the ACL listed in the table in section 50A.
Section 259(4) provides:
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.
In the present case, the applicant has claimed damages for repair expenses of $7,000 paid to Mackay Caravan Repairs (Gary Ziegler). The applicant purchased the caravan from the respondent’s premises at Deception Bay to “travel and live in.” The safety problems mentioned above first occurred outside of Rockhampton. The caravan was then towed to Mackay Caravan Repairs for final repairs. In these circumstances I consider it reasonably foreseeable that the applicant would seek to have the caravan repaired elsewhere.
In the absence of any evidence from the respondent as to the quantum of damages, I find that the applicant is entitled to damages of $7,000.
Order
The respondent is ordered to pay to the applicant the amount of $7,000.
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