Swagman Australia Pty Ltd v Kennedy - [2011] QCATA 98

CITATION:

Swagman Australia Pty Ltd v Kennedy [2011] QCATA 98

PARTIES:	Swagman Australia Pty Ltd (trading as Swagman Motor Homes)
v
Mr William Kennedy

APPLICATION NUMBER: APL295-10

MATTER TYPE:

Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member
Andrew McLean Williams, Member

DELIVERED ON: 8 April 2011

DELIVERED AT: Brisbane

ORDERS MADE: Leave to Appeal Refused.
The Appeal is otherwise dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – CONTRACTUAL WARRANTY DISPUTE – where original warranty assigned in writing to subsequent owner of motor-home – where manufacturer attempted to repair cosmetic cracking and subsequent refusal to attempt same again – where owner sought to recoup costs of those repairs affected elsewhere – where the manufacturer now seeks leave to appeal on grounds the Member made errors of fact and law – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act 2009; s 142

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Senior Member Richard Oliver:

In this matter the Appeal Tribunal consisted of Mr McLean Williams, QCAT Member and me. I have had the benefit of reading his reasons in draft. I agree with his reasons, and his conclusions, and the order he proposes.

Member Andrew McLean Williams:

Swagman Australia Pty Ltd (hereinafter “Swagman”) trade under the name “Swagman Motor Homes”. As that name suggests they are the manufacturers of motor-homes. Not just any motor-homes, but opulent ones that far exceed in value a great many modest residential houses. Evidence put before QCAT suggests that the motor-home that is at the heart of this dispute – a “Swagman RV3301” was, when new, worth $574,236.96.

In mid 2007, Trevor and Jan Harris, the former owners of this motor-home contracted with Swagman to have it constructed on their behalf. Given the opulence of the vehicle, construction time was protracted. By the time that it was eventually ready for delivery around 12 months later, Mr and Mrs Harris had undergone a change of circumstances and no longer had any use for it. It was never registered in their name and it remained in the yard at Swagman, up for sale by consignment. Swagman was not the consigning agents. The motor-home remained in the yard at Swagman, purely for reasons of convenience.

The agents for sale was initially a business called “Motorhome World”, (with whom Swagman had a retail dealership relationship). During the time that the motor-home sat at Swagman it was never registered for use on the States roads, although over the duration of that time Motorhome World did incur something in the order of 724 kilometres on the odometer, by their taking the motor-home out on test drives and to camping & outdoor shows, apparently with the consent of the then owner, Mr Harris.

In about March of 2009, the Respondent on this appeal, Mr William Kennedy…

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.

Continue reading Swagman Australia Pty Ltd v Kennedy

Details

AGLC: Swagman Australia Pty Ltd v Kennedy [2011] QCATA 98
Case: [2011] QCATA 98
Decision Date: 8 April 2011

CaseChat Overview and Summary

Swagman Australia Pty Ltd brought a claim against Kennedy in the Consumer, Trader and Tenancy Tribunal (CTTT) regarding a breach of warranty in relation to a motor-home. The primary dispute involved the assignability of a warranty from the original purchaser to a subsequent owner, and the manufacturer's obligation to address the cosmetic cracking on the motor-home. Swagman argued that the warranty was assignable and that the manufacturer was required to repair the damage. Kennedy, the subsequent owner, contended that the warranty was not assignable and that the manufacturer was not obligated to repair the cracking. The manufacturer, Swagman, now seeks leave to appeal the decision of the CTTT on the basis that the Member made errors of fact and law.

The primary legal issue was whether the warranty was assignable to Kennedy and if the manufacturer had an obligation to repair the cosmetic cracking on the motor-home. The court was required to determine whether the warranty was intended to be personal to the original purchaser or if it could be assigned to subsequent owners. Additionally, the court needed to assess whether the manufacturer was obligated to repair the cosmetic cracking and whether the manufacturer's decision to repair the cracking once and then refuse to do so again was reasonable. The court also had to consider the manufacturer's liability for the cost of repairs that were adversely affected by the initial repair attempt.

The court found that the warranty was assignable to Kennedy, the subsequent owner, and that the manufacturer had an obligation to repair the cosmetic cracking. The Member's decision was based on the terms of the warranty and the manufacturer's duty to provide repairs. The court found that the manufacturer's refusal to repair the cracking again was unreasonable and that the manufacturer was liable for the cost of repairs affected by the initial repair attempt. The manufacturer's application for leave to appeal was dismissed as the errors of fact and law were not made out. The court upheld the decision of the CTTT.

The court did not grant leave to appeal and dismissed the manufacturer's application. The decision of the CTTT stands, and the manufacturer is liable for the cost of repairs affected by the initial repair attempt. The warranty was found to be assignable, and the manufacturer had an obligation to repair the cosmetic cracking. The manufacturer's refusal to repair the cracking again was deemed unreasonable, and the manufacturer is liable for the cost of repairs affected by the initial repair attempt.

Orders