Wardle v Viking Caravans & Campers Australia Pty Ltd
[2023] QCAT 400
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Wardle v Viking Caravans & Campers Australia Pty Ltd [2023] QCAT 400
PARTIES:
JENNIFER KATHLEEN WARDLE (applicant)
v
VIKING CARAVANS & CAMPERS AUSTRALIA PTY LTD, ABN 43 621 572 094 (respondent)
APPLICATION NO:
MVL 060-22
MATTER TYPE:
Motor vehicle matter
DELIVERED ON:
21 September 2023
HEARING DATE:
17 March 2023
HEARD AT:
Brisbane
DECISION OF:
Member Scott-Mackenzie
ORDER:
The respondent pay to the applicant $24,416.88 within 28 days 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 applicant entitled to a replacement caravan – whether consumer entitled to cost to remedy defects
Australian Consumer Law (Qld), s 3, s 54, s 55, s 56, s 236, s 259, s 259, s 260, s 261, s 263, s 265, s 267, s 269, s 271, s 274, s 279
Fair Trading Act 1989 (Qld), s 5, s 50, s 50A,
Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
Jewson Ltd v Boyhan [2003] EWCA Civ 1030; [2004] 1 Lloyd’s Rep 505
APPEARANCES:
Applicant:
Self-represented
Respondent:
Mr Klaus, the sole director of the respondent
REASONS FOR DECISION
Introduction
On 24 March 2022 the applicant made application to the Tribunal for an order that the respondent replace a caravan purchased by her from the respondent, alternatively a refund the price paid for the caravan (application).
Background
On 22 September 2020 the parties entered into a written contract for the purchase by the applicant from the respondent of a used caravan (contract). The caravan is described in the contract as a Paramount Premier 2010 (caravan). The details of the purchase are described in the contract in the following terms:
GST Amount Selling Price
Extra Repair Lights under Awning
Change 7 pin plug on front 9 pin plug
Stabiliser legs replacement of plastic base pads
Full detail clean
Repair front window/Replace
5 year warranty
Price on Rear handles
TOTAL GST$2,772.73 $27,727.27
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$0.00 $0.00
$2,772.73
TOTAL INCLUDING GST $30,500.00
There are several special conditions, as follows:
Full payment Within 48 hours, Transfer of title post full payment. Incl. RWC & Gas Certificate Deposit $20,000 Received 22/09/2020.
Ensure wheel bearings & Running gear in full working order.
The estimated delivery date is 29 September 2020.
The applicant paid a deposit of $20,000.00 on 22 September 2020. She paid the balance of the price, $10,500.00, on 24 September 2020.
The caravan, after a lengthy delay and despite several promises, was delivered by the respondent to the applicant on 21 December 2020. It was first used in November 2021 consequent on the COVID–19 pandemic and restrictions on travel. Defects were identified and communicated to the respondent.
The respondent refused to rectify the defects.
Applicant’s first affidavit
The applicant filed an affidavit with the application, sworn by her on 2 March 2022 (applicant’s first affidavit). Exhibited to the affidavit are the following documents:
Exhibit
Description
JKW-01
Contract.
JKW-02
Australian Securities and Investments Commission search of the respondent
JKW-03
Invoice for the caravan
JKW-04
Bank transfer for the deposit
JKW-05
Bank transfer for the balance of the price
JKW-06 – JKW-19
Messages passing between the applicant and Mr Daniel Klaus, the sole director of the respondent and the person who negotiated the contract for the respondent
JKW-20
Invoice The Caravan Guys to the respondent
JKW-21 – JKW-37
Photographs of the defects in the caravan
JKW-38
Text message respondent to the applicant
In paragraph 6(c) of the applicant’s first affidavit, the applicant identifies agreed work to be carried out on the caravan prior to delivery. She then continues:
During the inspection process, it was identified that there was a leak with the front window. This required replacement and refitting. It was also noted that there was extensive water damage as a result of the window which was also required to be fixed. This work was being done through the insurance prior to me taking delivery of the Caravan.[1]
[1]Paragraph 6(d) of the applicant’s first affidavit.
When first used by the applicant, in November 2021, lights and a heater in the caravan ceased working. The caravan was rewired. Water damage was found below the front window, the window required to be repaired prior to delivery of the caravan.[2]
[2]Paragraph 19 of the applicant’s first affidavit.
The applicant contacted Mr Klaus. She was informed by him the caravan is without a warranty and she can “… take it up with the repair agency who did the repairs. They will be more than obliging or make a claim under YOURE aftermarket insurance you have.”[3]
[3]Paragraph 21 of the applicant’s first affidavit and exhibit JKW-18.
Photographs exhibits JKW-21 – JKW-37 to the applicant’s first affidavit depict the rear lights replaced by the applicant, damage to the interior of the caravan, fittings replaced by the applicant, the tool box, and lights and a power point replaced by the applicant.
Directions given on 13 July 2022
On 13 July 2022 the Tribunal gave directions for the inspection and assessment of the caravan and the filing and service of statements of witnesses and submissions. The applicant, on 2 September 2022, filed a second affidavit, sworn by her on 22 August 2022 (applicant’s second affidavit). The respondent did not file material, whether in accordance with the directions or otherwise.
Applicant’s second affidavit
The applicant deposes to attempts to arrange an inspection and assessment of the caravan.[4] In paragraph 8, she deposes to a conversation with Mr Drew Hocking, the workshop manager of The Caravan Guys. The firm carried out repairs to the caravan at the request of the respondent prior to delivery. Mr Hocking informed the applicant the repairs did not include repair of the leak in the front window or the water damage. He went on to say the roof of the caravan required resealing, there was damage to the rear cupboards and panelling, and the windows and metal joints needed to be removed and resealed because of the leaks.[5]
[4]Paragraphs 4 – 7 of the applicant’s second affidavit.
[5]Paragraph 8(g) of the applicant’s second affidavit.
Mr Hocking provided the applicant with a copy of the invoice for the repairs carried out at the request of the respondent.[6] It is dated 4 December 2020. The notes on the invoice read:
- Removed, repaired internal frame and re-sheeted behind bed and both L/H & R/H cupboards
- Removed, cleaned and re-sealed front window (approval verbal from Kent on drop-off)
[6]See exhibit JKW-01 to the applicant’s second affidavit.
Also on the invoice is the following important note:
we have been advised that water leak/entry has been rectified, so presuming front window and all front corner moulds have been removed/cleaned/refit/resealed - quoted works is only to repair resulting water damage, and we are in no way obligated to repair future water damage to the same areas having taken no part in those repairs.
The note, very clearly, contradicts what was said by Mr Klaus to the applicant.
On 1 August 2022 Mr Hocking carried out an assessment of the caravan. The estimated cost to repair the caravan is $24,416.88 (labour $19,827.50 and parts $3,598.00, plus GST).[7]
[7]Exhibit JKW-02 to the applicant’s second affidavit.
Directions given on 6 April 2022
On 6 April 2022 the Tribunal gave further directions. The directions included a direction that the respondent file and serve a response and/or counter-application – motor vehicle dispute (form 60) by 16 May 2022. It failed to do so by the date specified.
Hearing
The proceeding was heard by the Tribunal on 17 March 2023.
The applicant was self-represented. Mr Klaus appeared on behalf of the respondent.
Application
The respondent, on 15 March 2023, by its lawyers, purported to file a response and/or counter-application (form 36), long after the time for doing so had ended. At the hearing, Mr Klaus sought the leave of the Tribunal to file the document. He explained he had been overseas since May 2022 for health reasons and had not had an opportunity to file a response to the application in the meantime.
The applicant denied having received the response.
The Tribunal refused the application for leave to file the response. It did so because the proceeding was commenced on 24 March 2022. The application, and the applicant’s first affidavit, were served on the respondent on 17 April 2022.
The respondent was initially represented by lawyers. They were granted leave to withdraw from the proceeding on 14 February 2023, about ten months after service of the application.
The respondent failed to respond to directions given by the Tribunal on 6 April 2022 (while still represented by lawyers) and 13 July 2022.
The response for which leave to file was sought was prepared by lawyers, different lawyers to those originally retained by the respondent. It was not filed until late on 15 March 2023, effectively one day before the commencement of the hearing.
Oral evidence
The applicant gave sworn evidence. She stated the contents of the first and second affidavits are true and correct.
Mr Klaus also gave sworn evidence. He stated the applicant took possession of the caravan on 21 December 2022. It is a 2010 model.
He conceded he does not know how far the caravan had travelled at the time of delivery but suggested about 100,000 kilometres. He was aware there were defects but denied being aware of the extent of the defects.
The price paid by the applicant, Mr Klaus swore, was a fair price. The defects were rectified.
In response, the applicant swore she accepted Mr Klaus’ word the repairs had been carried out. They had not. She only became aware of the defects eleven months after taking delivery of the caravan when first used. It was stored on her property and not used because of the COVID-19 pandemic and restrictions on travel.
She relied on Mr Klaus’ representation the defects had been repaired, the applicant said. The caravan, however, was not fit for purpose.
Mr Klaus responded asserting the accusations in the Queensland Government newsletter exhibit JKW-032 to the applicant’s second affidavit to the effect on 9 February 2022 he was ordered by the Magistrates’ Court of Queensland at Southport to pay fines and compensation of more than $460,000.00 are incorrect. The money owed to customers, he said, has been repaid.
The applicant, Mr Klaus swore in evidence, did not mitigate any loss suffered by her. The caravan remained out in the weather for eleven 11 months. The applicant, he asserted, accepted the caravan in that the condition it was in on taking delivery.
Legislation
Statutory guarantees
The applicant claims an order that the respondent replace the caravan, alternatively an order the respondent pay to her the estimated cost to remedy the defects, $24,416.88. She submits the statutory guarantee in section 54 of the Australian Consumer Law (Queensland) (ACL) applies to the supply of the caravan. To the extent relevant, the section provides:
(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 quality if 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) - (7)...
In Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd[8], Wheelahan J, at [25] – [27], said the following about the guarantee in section 54:
25. Section 54 provides for a common standard of acceptable quality which goods are required to reach. It is necessary that goods have all the qualities referred to in s 54(2) in order to comply with the statutory standard: Vautin v By Winddown Inc (formerly Bertram Yachts) (No [2018] FCA 426; 362 ALR 702 (Vautin) at [142] and [144] (Derrington J). The standards under s 54(2) include that goods will be fit for all purposes for which goods of that kind are commonly supplied. This general standard of fitness for purpose is not dependent upon the consumer communicating any intended purpose to the supplier, or relying upon the supplier’s skill or judgment. And, in relation to the general standard, it does not suffice that the goods will be fit for only some of those purposes.
26. The standard of acceptable quality in s 54(2) has as its reference point a construct, namely the objective standard of a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects of the goods. The reasonable consumer sits with an array of other hypothetical persons who have been recruited by the law and by reference to whom objective standards are evaluated: see, Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49; 4 All ER 210 at [1] - [4] (Lord Reed JSC). Such a person has been described as an anthropomorphic conception of justice that is and must be the court itself: see Davis Contractors Ltd v Fareham Urban District Council [1956] UKHL 3; [1956] AC 696 at 728 (Lord Radcliffe).
27. The hypothetical question whether the reasonable consumer would have regarded the quality of the goods as acceptable is to be determined at the time of supply. However, the reference in s 54(2) to hidden defects has the consequence that for the purposes of determining that question, the reasonable consumer may be acquainted with information known at the time of trial: cf, Medtel Pty Ltd v Courtney [2003] FCAFC 151; 130 FCR 182 at [70] (Branson J, Jacobson J agreeing). The standard of acceptable quality prescribed by s 54(2) is not absolute, or a standard of perfection. It is tempered by what a reasonable consumer would regard as acceptable having regard to the several matters in s 54(3). These matters render the standard of acceptable quality elastic, and context specific: Contact Energy Ltd v Jones [2009] NZHC 2631; [2009] 2 NZLR 830 at [95] (Miller J). The significance of the components of the guarantee of acceptable quality will therefore vary with the circumstances of each case.
[8][2020] FCA 1672.
The statutory guarantee in section 55 of the ACL applies, the applicant further asserts. The section, to the extent relevant, is in the following terms:
(1)If:
(a) a person (the supplier) 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 reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.
(2)A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:
(a) the consumer makes known, expressly or by implication, to:
(i)the supplier; or
(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or
(b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).
(3)...
Wheelahan J, in Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd, refers to what he describes as the conceptual overlap between the statutory guarantees in sections 54(1) and 55(1) to the extent any disclosed purposes or represented purposes that engage section 55(1) may also amount to common purposes for the objective standard of acceptable quality under section 54(2), citing Jewson Ltd v Boyhan[9].
[9][2003] EWCA Civ 1030; [2004] 1 Lloyd’s Rep 505, per Clarke LJ at [68], [71], and Sedley LJ at [77].
Section 50(1) of the Fair Trading Act 1989 (Qld) (FT Act) provides:
A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to:
(a) for the tribunal, whether the subject of the proceeding:
(i)would be a minor civil dispute within the meaning of the [Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)]; or
(ii)would be a matter to which section 50A applies; or
(b) for a court - any civil jurisdictional limit, including any monetary limit, applying to the court.
The table to section 50(1) includes an action against a supplier of goods under section 259(2) of the ACL (to recover reasonable costs incurred by a consumer), section 259(3) (to recover compensation for the reduction in the value of the goods) and section 259(4) (to recover damages because of a failure to comply with a guarantee).
This proceeding is not a minor civil dispute within the meaning of the QCAT Act because the amount claimed is more than the prescribed amount, $25,000.00. It follows the Tribunal’s jurisdiction in the circumstances here must be found in section 50A of the FT Act. The section provides a person may apply, as provided under the QCAT Act, to the Tribunal for an order mentioned in section 50A(2) for an action:
(a)under a provision of the ACL listed in the table to the section; and
(b)relating to a motor vehicle; and
(c)seeking an amount or value of other relief of not more than $100,000.00.
Motor vehicle is defined in subsection (4) to have the same meaning as defined in the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) (MDCA Act). It includes a caravan.[10]
[10]Section 12(1) of the MDCA Act.
The table to the section is set out below:
Provision of ACL
Name of provision
Nature of proceeding
section 236(1)
Actions for damages
Action to recover amount of loss or damage
section 259(2), (3) and (4)
Action against suppliers of goods
s 259(2) - Action to recover reasonable costs incurred by consumer
s 259(3) - Action to recover compensation for reduction in value of goods
s 259(4) - Action to recover damages because of failure to comply with guarantee
section 265(3)
Termination of contracts for the supply of services that are connected with rejected goods
Action to recover refund
section 267(2), (3) and (4)
Action against suppliers of services
s 267(2) - Action to recover reasonable costs incurred by consumer
s 267(3) - Action to recover compensation for reduction in value of services
s 267(4) - Action to recover damages because of failure to comply with guarantee
section 269 (3)
Termination of contracts for the supply of services
Action to recover refund
section 271(1), (3) and (5)
Action for damages against manufacturers of goods
Action to recover damages from manufacturer
section 274(3)
Indemnification of suppliers by manufacturers
Action against manufacturer for legal or equitable relief
section 279(1)
Action by consumer to recover amount of loss or damage
Action to recover amount of loss or damage
Remedies
The remedies available to a consumer for a failure to comply with a statutory guarantee are found in part 5.4 of the ACL. If the failure to comply with a guarantee can be remedied and is not a major failure:
(a) the consumer may require the supplier to remedy the failure within a reasonable time; or
(b)if such a requirement is made of the supplier but the supplier refuses or fails to comply with the requirement, or fails to comply with the requirement within a reasonable time - the consumer may:
(i) otherwise have the failure remedied and, by action against the supplier, recover all reasonable costs incurred by the consumer in having the failure so remedied; or
(ii) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection.[11]
[11]Section 259(2) of the ACL.
The Tribunal has jurisdiction to make an order under the subsection.[12]
[12]Section 50A of the FT Act and the table to the section.
If that the failure to comply with a 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 the 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.[13]
[13]Section 259(3) of the ACL.
Once again, the Tribunal has jurisdiction to make an order under the subsection.
The failure, the evidence, which I accept, shows the failure can be remedied.
A failure to comply with a guarantee in the section 54 or section 55 is a major failure if, inter alia:
(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 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.[14]
[14]Section 260(1) of the ACL.
A failure is also a major failure if:
(a)the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and
(b)the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[15]
A note to the section 260(2) reads “The multiple failures do not need to relate to the same guarantee.”
[15]Section 260(2) of the ACL.
A supplier of goods may comply with a requirement of a consumer to remedy a failure to comply with a guarantee referred to in section 259(1)(b), the supplier may comply with the requirement, inter alia:
(a)by repairing the goods; or
(b)by replacing the goods with goods of an identical type; or
(c)by refunding:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods.[16]
[16]Section 261 of the ACL.
The supplier must, in accordance with an election made by the consumer:
(a)refund:
(i) any money paid by the consumer for the goods; and
(ii) an amount that is equal to the value of any other consideration provided by the consumer for the goods; or
(b)replace the rejected goods with goods of the same type, and of similar value, if such goods are reasonably available to the supplier.[17]
[17]Section 263(4) of the ACL
An action for an order to replace the goods under section 261 or section 263 is not one of the actions under a provision of the ACL listed in the table to section 50A. It follows the Tribunal is without jurisdiction to make an order for the replacement of the caravan. Further, and in any case, there is no evidence of the applicant rejecting the caravan.
Discussion
A person acquires goods as a consumer if, inter-alia, the goods are of the kind ordinarily acquired for personal, domestic, or household use or consumption.[18] It was not disputed by the respondent the sale by it to the applicant of the caravan was a supply of goods to a consumer in trade or commerce.
[18]Section 5 of the FT Act and section 3(1)(b) of the ACL.
At the time of inspection of the caravan, prior to delivery, there was a leak in the front window. The leak had caused water damage to the interior of the caravan. The respondent agreed to replace the window and repair the damage. It informed the applicant the window had been replaced, and the damage repaired, again prior to delivery. It also informed the applicant the roof had been re-resealed. As revealed by the evidence of The Caravan Guy, evidence I accept, the defects were not remedied.
The evidence of The Caravan Guys, again accepted by me, is there were many other defects in the caravan at the time of delivery. The respondent asserts the defects are consequent on the caravan being left outside in the weather and neglected. I reject the assertions and find the defects were present at the time of delivery.
A reasonable consumer, fully acquainted with the state and condition of the caravan at the time of supply, including hidden defects, would not have regarded it as acceptable having regard to the matters in section 54(2) of the ACL, in particular the nature of the goods, a caravan, the price of the goods, $30,500.00, and the representations made about the goods by the respondent. It was not fit for all purposes for which caravans are commonly supplied. Whilst arguably acceptable in appearance and finish, it was not free from defects, safe or durable.
The caravan, Mr Klaus stated in evidence, had travelled less than 100,000 kilometres. It should have been in reasonable condition. The applicant was told the front window had been replaced, and the roof resealed; they had not. The electrics failed the first time the caravan was used.
The caravan, in my opinion, was not of acceptable quality within the meaning of section 54(2) of the ACL at the time of supply, and I so find.
Goods, by reason of section 54(6), 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.
As I have said, Mr Klaus asserts the defects were consequent on the caravan being left outside in the weather and neglected. I have rejected the assertion. It is not otherwise suggested the caravan is of unacceptable quality by reason of the matters in section 54(6) of the ACL.
The remedy available to the applicant for a failure to comply with the statutory guarantee in section 54 of the ACL turns on whether the failure is a major failure. If the failure can be remedied and is not a major failure, the consumer may require the supplier to remedy the failure within a reasonable time. If the supplier fails to comply with a requirement to remedy the failure within a reasonable time, the consumer may:
(a)have the failure remedied and recover the reasonable cost of doing so; or
(b)subject to section 262 of the ACL, reject the goods.[19]
[19]Section 259(2) of the ACL.
If the failure to comply with the guarantee in section 54 cannot be remedied or is a major failure, the consumer may:
(a)subject to section 262, reject the goods; or
(b)recover compensation for any reduction in that the value of the goods.[20]
[20]Section 259(3) of the ACL.
Here, as I have said, the uncontradicted evidence is the failure to comply with the guarantee in section 54 can be remedied. The applicant required the respondent to do so; it declined. It follows the applicant to is entitled to the reasonable cost to remedy the defects. The cost, the evidence shows, is $24,416.88.
In her application, the applicant sought replacement of the caravan, alternatively a refund of the price paid. Subsequently, the applicant amended her claim to a claim for replacement of the caravan, alternatively the cost to repair the defects.[21]
[21]Paragraph 14 of the applicant’s second affidavit.
The applicant did not seek replacement of the caravan until she filed the application on 24 March 2022, about 18 months after entering the contract to purchaser the caravan. Prior to filing the application, the remedy sought by the applicant in correspondence with the respondent was repair of the defects.
As I have said, the Tribunal is without jurisdiction to make an order for the replacement of the caravan. The remedy available to the applicant is the alternative remedy sought by her, an order requiring the respondent to pay to her the cost to rectify the defects, $24,416.88.
Summary of findings
In summary, I find:
(a)the applicant, in relation to the purchase of the caravan, was a consumer within the meaning of the FT Act and the QCAT Act, and the caravan was sold by the respondent to the applicant in trade or commerce within the meaning of the former Act;
(b)the statutory guarantees in sections 54 and 55 of the ACL apply to the supply of the caravan;
(c)the caravan contained several defects at the time of supply;
(d)a reasonable consumer, fully acquainted with the state and condition of the caravan at the time of supply, including hidden defects, would not have regarded it as acceptable having regard to the matters in section 54(2) of the ACL;
(e)the caravan, at the time of supply, was not of acceptable quality within the meaning of section 54(2) of the ACL;
(f)the applicant required the respondent to remedy the defects within a reasonable time. It declined to do so; and
(g)the applicant is entitled to an order requiring the respondent to pay to her the cost to remedy the defects in the caravan, $24,416.88.
Decision
The decision of the Tribunal is that the respondent pay to the applicant $24,416.88 within 28 days of this order.
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