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  4. Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ - [2020] QCAT 369

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Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ[2020] QCAT 369

Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ[2020] QCAT 369

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369

PARTIES:

selena nuth

(applicant)

v

soel products australia pty ltd trading as caravan rv cq

(respondent)

APPLICATION NO/S:

MVL017-19

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

22 September 2020

HEARING DATE:

22 September 2020

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. Soel Products Australia Pty Ltd trading as Caravan RV CQ is required to collect the caravan the subject of these proceedings from Selena Nuth within 28 days of the date of these orders.
  2. Soel Products Australia Pty Ltd trading as Caravan RV CQ is required to pay to Selena Nuth the amount of $80,000 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 caravan of acceptable quality – 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 54, 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

Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Preliminary matters

  1. [1]
    On 19 September 2019, Ms Nuth (the applicant) filed an application – motor vehicle dispute with the Tribunal.  The named respondent is Soel Products Australia Pty Ltd trading as Caravan RV CQ (the respondent).
  2. [2]
    The applicant entered into a contract with the respondent on 8 November 2018 to purchase a Titan Blackhawk Family Van 2200 (the caravan).  The purchase price was $80,000. 
  3. [3]
    ‘Motor vehicle’ is defined in s 12(1) of the Motor Dealers and Chattel Auctioneers Act 2014 (Qld) to mean:
  1. 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
  2. a caravan.
  1. [4]
    The applicant’s caravan falls within this definition.
  2. [5]
    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 $80,000 plus damages.
  3. [6]
    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.
  4. [7]
    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 caravan.

Australian Consumer Law provisions

Guarantee of acceptable quality

  1. [8]
    Section 54(1) of the Australian Consumer Law provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
  2. [9]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer: Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70].  However, information available after the time of supply may be taken into account in deciding whether the goods were of acceptable quality at the time of supply.
  3. [10]
    Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:
  1. (2)
    Goods are of acceptable quality if they are as:
  1. fit for all the purposes for which goods of that kind are commonly supplied; and
  2. acceptable in appearance and finish; and
  3. free from defects; and
  4. safe; and
  5. 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).

  1. (3)
    The matters for the purposes of subsection (2) are:
  1. the nature of the goods; and
  2. the price of the goods (if relevant); and
  3. any statements made about the goods on any packaging or label on the goods; and
  4. any representation made about the goods by the supplier or manufacturer of the goods; and
  5. any other relevant circumstances relating to the supply of the goods.
  1. [11]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’. 
  2. [12]
    The Macquarie Dictionary defines ‘durable’ as ‘having the quality of lasting or enduring of or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately’.
  3. [13]
    In Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 at [72], the Victorian Civil and Administrative Tribunal stated:

[T]he context of the section clearly requires that the question of durability be determined by having regard to how long a ‘reasonable consumer’ would expect the goods to last, taking into account the price paid, the nature of the goods and the representations made about the goods.

  1. [14]
    In Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 at [57], the New South Wales Civil and Administrative Tribunal stated:

A reasonable consumer would also be entitled to expect that such a high cost item would be durable, being capable of safe and effective use over a number of years (or at least many thousands of kilometres).

Evidence

  1. [15]
    The applicant gave the following evidence:
    1. (a)
      On 9 November 2018, the applicant took possession of the caravan from the respondent.
    2. (b)
      On 10 November 2018, the applicant reported to the respondent that the reversing lights and brake lights were not working, and that there was no hot water.
    3. (c)
      On 12 November 2018, the applicant reported to the respondent that there was grey water leaking out of the back of the van, the fridge fan was not working, the tv aerial was not working and there was still no hot water.
    4. (d)
      On 20 November 2018, the applicant reported to the respondent that there was a crack in the freezer, the oven work top was not square and there was still no hot water.
    5. (e)
      On 4 December 2018, the applicant reported to the respondent that the grey water was still leaking.
    6. (f)
      On 7 January 2019, the applicant reported to the respondent that the shower lamination was bubbling, the shower floor was soft and there was a crack in the freezer.
    7. (g)
      On 7 May 2019, the applicant reported to the respondent that two window frames had cracked letting in water and there was a problem with the bed struts.  She also repeated that the shower floor was soft and the shower lamination was bubbling.
    8. (h)
      On 23 July 2019, the applicant reported to the respondent that the window frames were cracked, the floors were lifting and soft, there was a lamination bubble on the shower wall, the shower floor was soft, there was a crack in the freezer, the bed struts were not working, and there were joints which were not sealed on various walls.
  2. [16]
    It is apparent from the applicant’s evidence that a number of defects were rectified by the respondent at some point between November 2018 and January 2019, but other defects remained.
  3. [17]
    The applicant provided a report from Alan Marburg, consulting mechanical engineer, dated 16 December 2019.  Mr Marburg opined:
    1. (a)
      There is insufficient strength in the flooring to support even one person walking on it.  The complete floor requires removal and upgrading to eliminate the flexing.
    2. (b)
      There is a limited number of support members on the underside of the flooring, which would contribute to the floor flexing.  Additional under-floor support is required.
    3. (c)
      The table is secured directly onto the flexing flooring, and the support structure on the underside has been removed.  The floor is to be adequately supported under the table.
    4. (d)
      After the shower has been used, water was seen to exit the left rear side at apparent floor level.  The cause of water leakage needs to be rectified, and resulting damage repaired or replaced.
    5. (e)
      Both window surrounds on the right side need to be replaced and the windows suitably sealed.
  4. [18]
    Mr Marburg opined in his report that replacing the flooring and improving the structural integrity of the flooring would be a ‘mammoth undertaking’ and a ‘major inconvenience’ to the applicant.
  5. [19]
    I note for completeness that the applicant also provided a report from Mark Hill of Alliance Motor Assessing and Valuations.  Consistent with paragraph 13 of QCAT Practice Direction No. 2 of 2019: Motor Vehicle List, I directed on 11 November 2019 that no party will be allowed to present evidence from more than one expert without justifying the need for additional expert evidence to the Tribunal.  The applicant elected not to rely on Mr Hill’s report.
  6. [20]
    The respondent provided a report from Marc Ducquet, a director of Recreational Vehicles Australia Pty Ltd, dated 17 March 2020.  Mr Ducquet opined:
    1. (a)
      There were a number of lateral sections of the caravan chassis in the middle section that were not to industry standard, including an unsupported section under the dining table. 
    2. (b)
      Lateral supports should be installed after the removal of the current stringers.
  7. [21]
    Mr Ducquet noted in his report that he had been advised that the windows would be replaced under warranty, the shower would be repaired or replaced to rectify the leak, a new fridge would be installed and the external decals on the caravan would be replaced.
  8. [22]
    Mr Marburg and Mr Ducquet gave their oral evidence concurrently at the hearing.  They agreed that the flooring was not fully supported by structural members, the table was unsupported, the leak in the shower needed to be rectified and the leaking windows needed to be replaced.
  9. [23]
    Mr Ducquet disagreed that the flooring needed to be replaced.  He was of the view that the addition of structural supports and, if necessary, the injection of additional foam in problem areas would resolve the issue.  Mr Marburg’s biggest concern was water damage to the floor, noting that the shower was on the right hand side of the caravan and the water leaked from the left hand side.  In his view, the soft spots could be caused by water damage.  Neither expert had undertaken invasive investigations of whether the floor had water damage.
  10. [24]
    On balance, I found Mr Marburg’s evidence on the flooring to be more persuasive.  If the shower was on the right hand side of the caravan and the water was leaking from the left hand side, it stands to reason that the water had to transit horizontally through the floor.  While I cannot be absolutely certain that this is the case without invasive testing, I am satisfied that this explanation is more likely than not based on the evidence before me.  The presence of water in the floor plausibly leads to the conclusion that the soft spots were caused by water damage.
  11. [25]
    For completeness, I note that Mr Ducquet gave oral evidence that repairs could be completed within five to 10 days.  That estimate did not include replacement of the flooring, which in his view was unnecessary.
  12. [26]
    James Creswick, a director of the respondent, also gave evidence that the applicant had been requested to return the caravan for rectification on eight occasions between 6 January 2019 and 19 August 2019.
  13. [27]
    I accept that there are a number of defects which currently affect the applicant’s caravan.  Relevantly, these include:
    1. (a)
      leaking windows requiring replacement;
    2. (b)
      leaking shower;
    3. (c)
      inadequate supports under the floor;
    4. (d)
      “spongy” flooring;
    5. (e)
      unsupported table; and
    6. (f)
      cracked fridge.
  14. [28]
    I also accept that there were a number of other defects which have previously been rectified.  These include the reversing and brake lights not working, the tv aerial not working and the hot water system not working.
  15. [29]
    Given these issues occurred soon after the applicant purchased the caravan, it is open to me to infer that the defects were either present at the date of supply, or that the caravan lacked durability as at the date of supply. I do so infer.
  16. [30]
    Having regard to the list of accepted defects set out above, I find that a reasonable consumer fully acquainted with the state of the caravan at the time of purchase would not regard the caravan as free from defects and durable.
  17. [31]
    The applicant gave evidence that she sought a refund on 8 August 2019.  I accept this evidence.

Remedies

  1. [32]
    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:
  1. (a)
    the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
  1. (b)
    the goods depart in one or more significant respects:
  1. (i)
    if they were supplied by description—from that description; or
  1. (ii)
    if they were supplied by reference to a sample or demonstration model—from that sample or demonstration model; or
  1. (c)
    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
  1. (d)
    the goods are unfit for a disclosed purpose that was made known to:
  1. (i)
    the supplier of the goods; or
  1. (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

  1. (e)
    the goods are not of acceptable quality because they are unsafe.
  1. [33]
    It has been held that an accumulation of individually minor defects can be aggregated to amount to a major failure giving rise to a right to reject the goods.  In Cary Boyd v Agrison Pty Ltd [2014] VMC 23 at [51], the Court held that:

[D]espite the use of ‘a’, to suggest the singular, ‘a major failure’ might be constituted by a series of specific and individual defects which taken as a whole constitute one major failure.  I also agree with this interpretation of s 260 of the ACL.

  1. [34]
    The test of whether there is a major failure for the purposes of s 260 and the test for whether goods are of acceptable quality for the purposes of s 54 both adopt a ‘reasonable consumer’ benchmark.  For the reasons already given, I find the series of defects set out above, taken together, are such that a reasonable consumer fully acquainted with the nature and extent of the failure, would not have acquired the caravan.  As Mr Marburg observed, repairing these issues would be a mammoth undertaking and cause major inconvenience to the consumer.
  2. [35]
    I note in passing that, given the presence of a major failure, there was no obligation on the part of the applicant to present the caravan for repairs despite the repeated requests by the respondent.
  3. [36]
    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:
  1. (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:
  1. the type of goods; and
  2. the use to which a consumer is likely to put them; and
  3. the length of time for which it is reasonable for them to be used; and
  4. the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [37]
    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 be done to fix it, and what that will cost; in other words, until the buyer is in a position to determine whether the defect is substantial.

  1. [38]
    I have found that the applicant sought a refund on 8 August 2019.  This occurred shortly after the applicant reported additional defects on 23 July 2019.  In these circumstances, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
  2. [39]
    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). 
  3. [40]
    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 am satisfied that the goods cannot be returned, removed or transported without significant cost to the applicant due to the size of the goods for the purposes of s 263(2)(b)(ii) of the Australian Consumer Law.  I will require the respondent to collect the caravan at its own expense within 28 days pursuant to s 263(3).  Upon the collection of the goods, the applicant will be entitled to a refund pursuant to s 263(4).

Damages

  1. [41]
    The Tribunal is vested with jurisdiction in respect of actions under s 259(4) of the Australian Consumer Law, which provides:

The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee, if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

  1. [42]
    In Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426 at [293], Derrington J stated:

It would appear that this subsection is concerned with the recovery of ‘reliance losses’ as the inclusion of the limitation of ‘reasonable foreseeability’ pertains to such losses rather than expectation losses.

  1. [43]
    The applicant has sought various damages, including for interest that she could otherwise have earned on the funds used to purchase the caravan.  She has also requested that these damages be assessed on an ‘aggravated’ basis.
  2. [44]
    None of the damages sought by the applicant are reliance losses, and the applicant provided no evidence in support of her claims in any event.  Damages are therefore not recoverable under s 259(4).

Costs

  1. [45]
    Section 50C of the Fair Trading Act 1989 (Qld) provides that the Tribunal may make a costs order against the respondent in the amount of the prescribed filing fee paid by the applicant.  This power is subject to s 102(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which provides that the Tribunal may make a costs order if the interests of justice require it.
  2. [46]
    The applicant has sought to recover the costs of the expert reports by Mr Marburg and Mr Hill.  These costs are not recoverable.  In addition, I note that the applicant did not rely on the expert report of Mr Hill in any event.
  3. [47]
    Given that the applicant inflated her claim by claiming damages which I have found not to be recoverable, I do not consider that it is in the interests of justice to order the respondent to pay the filing fee of $345.80.  The inflation of claims invariably presents an obstacle to the early resolution of matters.

Orders

  1. [48]
    The orders of the Tribunal are:
  1. The respondent is required to collect the caravan the subject of these proceedings from the applicant within 28 days of the date of these orders.
  2. The respondent is required to pay to the applicant the amount of $80,000 within 28 days of the date of these orders.
Close

Editorial Notes

  • Published Case Name:

    Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ

  • Shortened Case Name:

    Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ

  • MNC:

    [2020] QCAT 369

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    22 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90
2 citations
Jump To
Cite 1 - [2016] NSWCATCD 90
Cite 2 - [2016] NSWCATCD 90
Cary Boyd v Agrison Pty Ltd [2014] VMC 23
2 citations
Jump To
Cite 1 - [2014] VMC 23
Cite 2 - [2014] VMC 23
Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44
2 citations
Jump To
Cite 1 - [2020] QCAT 44
Cite 2 - [2020] QCAT 44
Medtel Pty Ltd v Courtney (2003) 130 FCR 182
2 citations
Jump To
Cite 1 - (2003) 130 FCR 182
Cite 2 - (2003) 130 FCR 182
Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520
2 citations
Jump To
Cite 1 - [2018] VCAT 1520
Cite 2 - [2018] VCAT 1520
Nesbit v Porter [2000] 2 NZLR 465
1 citation
Jump To
Cite 1 - [2000] 2 NZLR 465
Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) [2018] FCA 426
2 citations
Jump To
Cite 1 - [2018] FCA 426
Cite 2 - [2018] FCA 426

Cases Citing

Case NameFull CitationFrequency
Barter v Southeast Auto Sales Pty Ltd [2024] QCAT 2771 citation
Eribo v Trinity Motors Pty Ltd t/a Trinity Ford Cairns [2024] QCAT 2322 citations
Green v Hitch Campers Pty Ltd [2024] QCAT 2632 citations
Hawkins v Trivett Automotive Retail Pty Ltd [2024] QCAT 2532 citations
Jarmain v Market Direct Group Pty Ltd t/as MDC Camper Trailers & Offroad Caravans [2022] QCAT 3754 citations
Mitchell v Norris Enterprises Pty Ltd [2025] QCAT 3103 citations
Schmidt v Kevin Butler Wholesale Pty Ltd [2024] QCAT 5222 citations
Thompson v Apollo Investments Pty Ltd t/as Kratzmann Caravans [2024] QCAT 2542 citations
1

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