Taylor v Autohome Australia Pty Ltd
[2012] QCATA 189
•3 October 2012
| CITATION: | Taylor v Autohome Australia Pty Ltd [2012] QCATA 189 |
| PARTIES: | Henry Michael Taylor (Applicant/Appellant) |
| v | |
| Autohome Australia Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL211-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 3 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal is granted.1. The Tribunal’s decision of 27 June 2012 is set aside.2. The respondent must pay into the Queensland Civil and Administrative Tribunal’s trust account the sum of $4,850.00 by 28 October 2012.3. Upon payment of that sum into the QCAT trust account the applicant must return to the respondent at his own expense with a reputable carrier the fibreglass bodied rooftop capsule by 16 November 2012.4. The respondent must inform QCAT when it has received the capsule and then QCAT is to pay to the applicant $4,850.00. 5. |
| CATCHWORDS: | Sale of Goods – where goods defective – whether damage as a result of fair wear and tear of defective goods – where refund sought on return of goods – whether purchaser should pay the costs to return the goods – where monies paid into trust account pending return of goods Queensland Civil and Administrative Tribunal Act2009, ss 142(3), 146 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
Mr Taylor purchased a collapsible fibreglass bodied rooftop tent from Autohome Australia Pty Ltd on 12 August 2010 for $4,850.00. The unit is designed to sit on the roof of a vehicle, typically a four wheeled drive vehicle. Although described as a tent, it is two fibreglass components, a base and a lid (similar to a suitcase), and when opened up to a height of about 1 metre, the space in between is enclosed by a curtain all around so it is in the nature of a tent. When the lid is collapsed to the base the curtain is folded inside the capsule and care has to be taken to ensure it is not caught between the lid and the base.
After getting the tent, Mr Taylor used it twice and found that the inside roof lining was falling down and holes were appearing in the bottom of the curtains at the corners. He immediately raised these issues with Mr Eagle of Autohome Australia. Mr Eagle contended that Mr Taylor caused the damage by not packing the product away properly in accordance with the manufacturer’s instructions.
Mr Taylor disputed that he did not pack the unit in accordance with the instructions. He took photos of the damaged article, put them on a DVD and sent them to Mr Eagle. Despite seeing the photos, Mr Eagle’s position remained the same so when Mr Taylor next went to Darwin, from Kununurra, he had the unit examined by an upholsterer, Top End Upholsters, who provided a report. That report clearly states that the problem is a manufacturer’s fault because there is not sufficient strapping to keep the lid and the base firmly closed together when unit is closed. Mr Blackshell, who provided the report, stated categorically that it was not possible for the current damage to be caused from misuse or incorrect packing but rather it was caused from friction between the upper lid and the lower lid.
It seems this was persuasive because in open correspondence to Mr Taylor, Mr Eagle offered a refund of the purchase price of $4,850.00, which would include the cost of Mr Taylor returning the product from Kununurra to Allora in South East Queensland. Mr Taylor rejected the offer because he did not want to pay the transportation costs.
Mr Taylor then commenced a proceeding in the minor civil dispute jurisdiction of the Tribunal claiming a refund of the purchase price and that Autohome Australia pay for the cost of transport of the product to Allora. Despite mediation the matter could not be resolved and it was heard by a Tribunal Member on 27 June 2012.
Because of their remoteness the parties attended the hearing by telephone. Typically, in this electronic age, Mr Taylor provided a USB flash drive to the Tribunal of a video of the camping unit on the top of a vehicle in a closed position and also fully open. The wear and holes are clearly visible at the corners of the unit which, seemed to me to be entirely consistent with the evidence given by Mr Blackshell. The learned Member did not view the video because it seems no facilities were available for that purpose in the hearing room. He felt he could fairly consider the application from the evidence from the parties. Having viewed the flash drive, there would have been a distinct advantage in the learned Member viewing it, firstly; to completely understand the applicant’s case and secondly; to ensure the applicant was satisfied that all of the evidence was considered once the flash drive was admitted into evidence.
After hearing from both parties the learned Member decided to award $3,000.00 to Mr Taylor and for him to pay the freight to return the unit to Autohome Australia by adding a further $725.00 to the award. The order was that Mr Taylor return the unit and that Autohome Australia pay to Mr Taylor $3,725.00 within 14 days of receipt of the goods.
Mr Taylor filed an application for leave to appeal or appeal the learned Member’s decision. Mr Taylor says that the learned Member’s assessment of fair wear and tear by using his own discretion and “worldly experience” was not based on any evidence, did not properly take into account the terms of the warranty and the limited use that the unit had been put to. It is also clear, in the reasons, that he did not have regard to the independent evidence of Mr Blackshell when making his final decision.
Mr Taylor also complains, rightly, that the learned Member did not have regard to the evidence on the USB flash drive. Mr Taylor sought an order that he be refunded the full amount of the purchase price plus the costs of freighting the unit back to Autohome Australia.
As this is an appeal from a decision in the minor civil disputes jurisdiction, leave to appeal is necessary.[1] The question whether leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act, s 142(3).
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at 2.
[4] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
As I have said, viewing the video on the USB flash drive would have been helpful in understanding the evidence and seeing the damage and its location, although I do not consider it was critical to the decision made by the learned Member. He had before him a brochure which showed pictures of the rooftop unit and from the description of the damage given by Mr Taylor, it is evident that the single strap at the back tying the lid to the bottom was not sufficient to avoid damage to the corners particularly over rough roads and off-road. The learned Member came to the conclusion, reasonably, that there was damage but did not specifically identify the cause of it. In addition, although Mr Eagle contended that the damage was the way the vehicle had been packed, he seemed to have resiled from this position by offering to refund the purchase price provided Mr Taylor sent the goods back to Allora.
Although it has been some considerable time since this dispute first arose, Mr Taylor gave evidence, accepted by the learned Member, that the unit had only been used on two occasions before he found that there were holes in the curtain material at the base. He said he did not use it any further after this. It is therefore in the same condition as it was when the dispute first arose. On the basis of this evidence the damage was not caused through fair wear and tear but as a result of a defective product.
Unfortunately when it came to assessing damages for what was described as fair reasonable wear and tear there was no evidentiary basis upon which the learned Member could arbitrarily fix a figure of $3,000.00 which represented a discount of $1,850.00. This was particularly so in circumstances where the only evidence before the Tribunal was that the damage was more probable as a result of the product being defective as opposed to fair wear and tear.
The learned Adjudicator did not make any specific findings as to the cause of the damage although he seems to have accepted the evidence of Mr Blackshell. Had he made such a finding he would have come to the conclusion that there was no basis to discount the purchase cost for the damage to the unit. Therefore reliance on ‘worldly experience’ generally is not a sufficient basis to assess damages in these circumstances. Also he did not seem to take into account that there was an acceptance by Autohome Australia, impliedly, that the product was defective because it was prepared to take the product back and refund the money. Assessing the loss in this way is an error of law and therefore leave to appeal should be granted.
With respect to the transport costs, the warranty information supplied with the product imposes an obligation on the purchaser to return the defective product to the outlet from which it had been purchased together with the till receipt. Although it is a considerable distance and cost, if Mr Taylor wants to take advantage of the warranty and get a refund by returning the product, he has to comply with the terms of the warranty to which he agreed when he purchased the unit.[6]
[6] Warranty information document page 9.
Mr Taylor has said he likes the product very much and would have been content for it to be repaired providing this cost was covered by Autohome. It would have been useful if he had provided evidence of the cost of repair at the original hearing. If he had done so, the Tribunal could have ordered that Autohome pay him, by way of damages, the reasonable cost of repair and the cost of fixing extra straps to the capsule. If the cost to transport the unit back to South East Queensland is more than the cost of repair and the fixing of the straps, and Autohome are agreeable that this work would not void the warranty, this seems to me to be a sensible solution to this problem. Even if the cost is more, or Autohome refers Mr Taylor to a suitable repairer to carry out the repairs at its cost, a commercial solution may be more efficient outcome rather than the cumbersome orders I propose to make in this appeal to protect both parties. However I will have to leave that to the parties to work out.
All I can do is dispose of this appeal and being satisfied that there has been an error of law, the decision below should be set aside and an order that Mr Taylor return the product to Autohome Australia Pty Ltd and, upon receipt of the product, Autohome Australia Pty Ltd will pay to Mr Taylor the sum of $4,850.00.[7] I propose to make orders to facilitate this to ensure the money is secured while the product is being returned.
[7] QCAT Act, s 146.
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