Cunnington v Soel Products Australia Pty Ltd trading as Titan Caravans [2020] QCAT 158

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cunnington v Soel Products Australia Pty Ltd trading as Titan Caravans [2020] QCAT 158 PARTIES: MICHAEL CUNNINGTON (applicant) v SOEL PRODUCTS AUSTRALIA PTY LTD TRADING AS TITAN CARAVANS (respondent) APPLICATION NO/S: MVL041-19 MATTER TYPE: Motor vehicle matter DELIVERED ON: 18 May 2020 HEARING DATE: 8 May 2020 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: Michael Cunnington is required to return the caravan the subject of these proceedings to Soel Products Australia Pty Ltd trading as Titan Caravans within 7 days of the date of these orders. Soel Products Australia Pty Ltd trading as Titan Caravans is required to pay to Michael Cunnington the amount of $39,990 within 28 days of the date of these orders. 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 motor vehicle corresponded with description or sample – whether failure to comply with consumer guarantee a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund Australian Consumer Law, s 3, s 56, s 260, s 262, s 263 Competition and Consumer Act 2010 (Cth), Schedule 2 Fair Trading Act 1989 (Qld), s 50A, s 50C Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12 -- 1 of 5 -- 2 Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Preliminary matters On 24 October 2019, the applicant, Michael Cunnington, filed an application – motor vehicle dispute with the Tribunal. The respondent is Soel Products Australia Pty Ltd trading as Titan Caravans. The applicant entered into a contract with the respondent on 3 April 2019 to purchase an Apache Camper. The purchase price was $39,990. ‘Motor vehicle’ is defined in s 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to mean: (a) a vehicle that moves on wheels and is propelled by a motor that forms part of the vehicle, whether or not the vehicle is capable of being operated or used in a normal way; or (b) a caravan. The applicant’s caravan falls within this definition. The applicant seeks relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicant is a refund of $39,990. Section 50A of the Fair Trading Act 1989 (Qld) vests the Tribunal with jurisdiction in relation to motor vehicles in respect of certain actions under the Australian Consumer Law. Pursuant to s 3(1)(b) of the Australian Consumer Law, 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”. This includes the applicant’s motor vehicle. Consumer guarantees Section 56 of the Australian Consumer Law imposes a guarantee of correspondence with description. It relevantly provides: (1) If: (a) a person supplies, in trade or commerce, goods by description to a consumer; … there is a guarantee that the goods correspond with the description. -- 2 of 5 -- 3 Evidence The contract for the purchase of the caravan records the sales representative as Chris Matthews. The applicant gave evidence that he dealt solely with Mr Matthews prior to entering into the contract. James Creswick, who gave evidence for the respondent, stated that he may have had discussions with the applicant before the contract was entered into but could not recall the specifics of any such discussions. The applicant’s evidence was that Mr Matthews sent him a brochure for the Apache Camper. The brochure contains the following description: FEATURES: • 3.5m Dometic (sic) Awning • … The following statement is made at the foot of the brochure: Please confirm price and features with the seller. The applicant gave evidence that he asked Mr Matthews whether he was getting everything in the brochure. Mr Matthews replied, “that’s the camper you are getting”. Mr Matthews did not provide evidence in the proceedings. As noted above, Mr Creswick either did not have discussions with the applicant prior to the contract being entered into or could not recall the specifics of any such discussions. In the circumstances, I accept the applicant’s version of events. The applicant gave evidence that he picked the caravan up on 18 June 2019. He returned it to the respondent on 19 June 2019 in relation to a number of defects. The caravan remained in the respondent’s workshop until 6 September 2019. Mr Creswick stated that he did not have the dates to hand, but would not dispute the dates put forward by the applicant. In his written statement dated 21 February 2020, the applicant stated that he raised the issue that he only had a 3 metre awning with John Creswick (who did not give evidence) in a telephone conversation on 17 September 2019. The applicant stated orally at the hearing that he did not notice the awning length initially, as he only had the caravan for one day before returning it. The applicant stated at the hearing that he would never have bought a caravan with a 3 metre awning, as it is too small. I asked Mr Creswick what sized awning the applicant’s caravan had on it. He stated that the awning was a 3 metre awning, although he was not sure what sized cassette it had on it. The cassette might be 3.5 metres. The awning itself is smaller than the cassette. The respondent sources the awnings and cassettes from different suppliers, depending on what commercial arrangements are available at the time. Some suppliers take the actual awning length, while some take the cassette length. They always put the largest awning possible on a camper. Based on the evidence before me, I find that the applicant’s Apache Camper has a 3 metre awning on it, and not a 3.5 metre awning. -- 3 of 5 -- 4 I asked the applicant whether he had used the caravan. He stated that it had remained in his shed except for when he took it to the respondent for repair or to Lockyer RV Pty Ltd for assessment. I also asked the applicant whether he had damaged the caravan. He stated that he had definitely not. He had only set up the caravan in the presence of witnesses. I accept the applicant’s evidence as to use and damage, particularly given that the caravan was in the respondent’s workshop for over half the time between collection by the applicant and the commencement of proceedings. For completeness, I note that evidence was provided traversing a number of claimed defects with the caravan. For the reasons below, it is unnecessary for me to consider that evidence. Remedies against supplier The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure’. That term is defined in s 260 of the Australian Consumer Law to relevantly mean: (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 In assessing whether the motorhome departed from the description in a “significant aspect”, I have taken into consideration the fact that the very first feature mentioned in the brochure for the caravan was a 3.5 metre awning. This suggests that it is a significant feature of the caravan, and I therefore accept that the caravan supplied departed from the description in the brochure in a significant aspect. In order to obtain a refund, the consumer is required to reject within the ‘rejection period’. That term is defined in s 262(2) of the Australian Consumer Law to mean: (2) The rejection period for goods is the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee referred to in section 259(1)(b) to become apparent having regard to: (a) the type of goods; and (b) the use to which a consumer is likely to put them; and (c) the length of time for which it is reasonable for them to be used; and (d) the amount of use to which it is reasonable for them to be put before such a failure becomes apparent. In Nesbit v Porter [2000] 2 NZLR 465 at [39], the New Zealand Court of Appeal held that the rejection period was one that: suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually or preferably the supplier, for inspection. In this context, therefore, a defect is not ‘apparent’ until its cause has been identified and the buyer knows what has to -- 4 of 5 -- 5 be done to fix it, and that that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial. I accept that the applicant was not in a position to be acquainted with the length of the awning immediately after delivery, as he returned the caravan to the respondent the following day. The caravan then remained with the respondent for approximately 12 weeks. In these circumstances, I am satisfied that the applicant rejected the caravan within the rejection period. Section 262(1) also provides that the right to reject goods is lost if (amongst other things): (b) the goods have been lost, destroyed or disposed of by the consumer; or (c) the goods were damaged after being delivered to the consumer for reasons not related to their state or condition at the time of supply; … As set out above, I have accepted the applicant’s evidence that he has not used or damaged the caravan. In Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 at [24], I found that the Tribunal has jurisdiction to make an order requiring the supplier to pay to the consumer a stated amount of money, namely the amount of the refund payable under s 263(4)(a). In this case, the applicant has notified the respondent that the goods have been rejected in accordance with s 263(1) of the Australian Consumer Law. I will give effect to the requirement in s 263(2) that the goods be returned by so ordering. Upon the return of the caravan, the applicant will be entitled to a refund pursuant to s 263(4). Orders The orders of the Tribunal are: 1. The applicant is required to return the caravan the subject of these proceedings to the respondent within 7 days of the date of these orders. 2. The respondent is required to pay to the applicant the amount of $39,990 within 28 days of the date of these orders. -- 5 of 5 --