Parkinson v Hutchin

Case [2023] NSWCATCD 17


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Parkinson v Hutchin [2023] NSWCATCD 17
Hearing dates: 1 November 2022
Date of orders: 31 January 2023 [amended 20 February 2023]
Decision date: 31 January 2023
Jurisdiction:Consumer and Commercial Division
Before: J Searson, General Member
Decision:

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 31 January 2023 are amended as follows:

(1) Adrian James Hutchin t/as Jimbo’s 4X4 Campers must immediately accept Andrew Parkinson’s return of CX3 star vision hybrid caravan camper NSW registration number TK74DV via Star Vision Pty Ltd.

(2) Adrian James Hutchin t/as Jimbo’s 4X4 Campers must pay Andrew Parkinson the sum of $58,000 on or before 27 February 2023.

(3) Star Vision Pty Ltd must pay Adrian James Hutchin t/as Jimbo’s 4X4 Campers the sum of $58,000 on or before 27 February 2023.

(a) Upon payment of the $58,000.00 by Star Vision Pty Ltd pursuant to Order 3, the CX3 Star Vision caravan camper becomes the property of Star Vision Pty Ltd.

(4) Upon Adrian James Hutchin t/as Jimbo’s 4X4 Campers’ performance of Orders 1 and 2 above Andrew Parkinson must do all things necessary to transfer unencumbered title CX3 star vision hybrid caravan camper NSW registration number TK74DV to Adrian James Hutchin t/as Jimbo’s 4X4 Campers within 7 days.

(5) The First Respondent’s name is amended to Adrian James Hutchin Trading as Jimbo’s 4X4 Campers.

Catchwords:

CONSUMER LAW — consumer guarantees – major failure – rejection of goods - rejection period– liability of manufacturers — defective goods

Legislation Cited:

Australian Consumer Law NSW

Fair Trading Act 1987

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Cases Cited:

Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137

Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387

Avci v Inchurch Automotive Pty Ltd t/a Parramatta Motor Group [2019] NSWCATCD 39

Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141

Burton v Chad One Pty Ltd [2013] NSWDC 301

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

Contact Energy Ltd v Jones [2009] 2 NZLR 830

Farm v Suffolk Agricultural Producers Association [1969] 2 AC 31

Matumaini v Automobile Industries Pty Ltd [2017] NSWCATAP 93

Medtel Pty Ltd v Courtney [2003] FCAFC 51

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Miller & Associates Insurance Broking v BMW Australia Finance (2010) 241 CLR 357

Munday v Empire Auto Group Pty Ltd [2019] NSWCATAP 52

Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697

Rigby v LDV Automotive Pty Ltd & Anor [2021] QCAT 316

Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1

Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133

Category:Principal judgment
Parties:

Andrew Parkinson (Applicant)

Adrian James Hutchin t/as Jimbo’s 4 x 4 Campers (First Respondent)

Star Vision Pty Ltd (Second Respondent)
Representation:

Applicant…

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Details
AGLC
Parkinson v Hutchin [2023] NSWCATCD 17
Case
[2023] NSWCATCD 17
Decision Date

CaseChat Overview and Summary

The decision of the Civil and Administrative Tribunal in the matter of Parkinson v Hutchin concerns a dispute between Andrew Parkinson, a consumer, and Adrian James Hutchin trading as Jimbo’s 4X4 Campers, a manufacturer and supplier of caravan campers. The central issue was whether the caravan camper provided by the respondent to the applicant was of acceptable quality and fit for its disclosed purpose, and thus whether the applicant was entitled to reject the goods and seek a refund. The dispute also involved whether the respondent was liable for the defective goods, and if so, to what extent.

The tribunal was required to determine the validity of the consumer’s rejection of the goods under the Australian Consumer Law, specifically whether the failure was a major failure and whether the rejection occurred within the permissible period. Another issue was the extent of the respondent’s liability for the defective goods, including whether the respondent was merely a reseller or also bore responsibility as a manufacturer.

The tribunal found that the caravan camper was defective and did not meet the consumer guarantees of acceptable quality and fitness for purpose. The tribunal held that the failure was a major one, allowing the consumer to reject the goods. The rejection was deemed to occur within the statutory period, thereby entitling the consumer to a full refund. The tribunal further held that the respondent, as both a reseller and a manufacturer, was liable for the defective goods. Consequently, the tribunal ordered that the respondent must accept the return of the caravan camper, pay the applicant a sum of $58,000 as a refund, and transfer the title of the caravan camper to the applicant upon payment by Star Vision Pty Ltd.

The tribunal’s decision underscores the importance of ensuring that goods sold to consumers meet the required standards of quality and fitness for purpose, and highlights the consumer’s rights under the Australian Consumer Law to reject goods that fail to meet these standards. The orders reflect the tribunal’s determination of the respondent’s liability and the consumer’s entitlement to a full refund.

Orders

Orders of the court

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 31 January 2023 are amended as follows:

(1) Adrian James Hutchin t/as Jimbo’s 4X4 Campers must immediately accept Andrew Parkinson’s return of CX3 star vision hybrid caravan camper NSW registration number TK74DV via Star Vision Pty Ltd.

(2) Adrian James Hutchin t/as Jimbo’s 4X4 Campers must pay Andrew Parkinson the sum of $58,000 on or before 27 February 2023.

(3) Star Vision Pty Ltd must pay Adrian James Hutchin t/as Jimbo’s 4X4 Campers the sum of $58,000 on or before 27 February 2023.

(a) Upon payment of the $58,000.00 by Star Vision Pty Ltd pursuant to Order 3, the CX3 Star Vision caravan camper becomes the property of Star Vision Pty Ltd.

(4) Upon Adrian James Hutchin t/as Jimbo’s 4X4 Campers’ performance of Orders 1 and 2 above Andrew Parkinson must do all things necessary to transfer unencumbered title CX3 star vision hybrid caravan camper NSW registration number TK74DV to Adrian James Hutchin t/as Jimbo’s 4X4 Campers within 7 days.

(5) The First Respondent’s name is amended to Adrian James Hutchin Trading as Jimbo’s 4X4 Campers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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