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  4. Butler v Apollo Motorhome Holidays Pty Ltd - [2021] QCAT 417

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Butler v Apollo Motorhome Holidays Pty Ltd[2021] QCAT 417

Butler v Apollo Motorhome Holidays Pty Ltd[2021] QCAT 417

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Butler and Anor v Apollo Motorhome Holidays Pty Ltd [2021] QCAT 417

PARTIES:

John Butler

(applicant)

Shirleyann Butler

(applicant)

v

Apollo Motorhome Holidays Pty Ltd

(respondent)

APPLICATION NO/S:

MVL029-20

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

1 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

John Butler and Shirleyann Butler shall return the caravan the subject of these proceedings to Apollo Motorhome Holidays Pty Ltd within fourteen days of the date hereof in exchange for payment by Apollo Motorhome Holidays Pty Ltd to John Butler and Shirleyann Butler of $84,668.30.

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 corresponded with description – whether failure to comply with consumer guarantees a major failure – whether goods rejected during the rejection period – whether consumer entitled to refund – whether consumer entitled to damages

Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law, s 54, s 259, s 260, s 262, s 263

Fair Trading Act 1989 (Qld), s 50A

Ashe v Vehicle Auctions Australia Pty Ltd [2020] QCAT 500

Kalbar Financial Services Pty Ltd v LSH (Brisbane) Pty Ltd trading as Mercedes Benz Brisbane [2020] QCAT 346

Nesbit v Porter [2000] 2 NZLR 465

APPEARANCES &

REPRESENTATION:

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

  1. [1]
    By application filed 4 February 2020 John Butler and Shirleyann Butler (the Butlers) seek refund of $83,478.30 the purchase price of a Winnebago Mossman 680B caravan (the caravan) together with associated expenses $11,440.00, a total of $94,920.00 from Apollo Motorhome Holidays Pty Ltd (Apollo)

Background and evidence

  1. [2]
    The Butlers were planning a grey nomad lifestyle including off-grid travel. Coming from Newcastle they attended the Brisbane premises of Apollo in late January 2018. Impressed with Apollo they ordered the caravan with upgraded suspension. They nominated 3-4 weeks lead time for collection for the reason they would need to make arrangements due to both having elder medical issues and travelling from Newcastle to collect. Estimated production was to be April/May 2018. On 1 February 2018 the Butlers paid an initial deposit of $5000.00. Some weeks later they purchased 4 Sirocco fans at a cost of $700.00 for Apollo to install in the caravan.
  2. [3]
    In the meantime they purchased a new Ford Ranger to be optioned up to tow the caravan. Subsequently on about 20 June 2018 the Butlers were informed the caravan would be ready for delivery at the end of June. But there was delay due to the height of the hitch on the caravan being out of kilter with the tow mechanism installed on the Ford Ranger.
  3. [4]
    Additionally there was a mismatch of the wiring connections Ford Ranger to caravan. On 9 July 2018 the Butlers arrived at Apollo to take delivery of the caravan. But the club lounge table was freestanding and there were marks on all of the windows. When hitching was attempted the caravan was too high for the Ford Ranger despite the highest goose neck tow having been fitted to the Ford Ranger. It was not possible to tow the caravan away safely at that point.
  4. [5]
    A suggestion by Apollo was made to the Butlers to put airbags into the Ford Ranger as a solution. The Butlers were advised by others to raise the Ford Rangers suspension. The Butlers requested a meeting with Apollo’s dealer principal Robin Harris which took place on 14 July 2018. They said while there was an offer of return of the $5000.00 deposit they were encouraged to proceed.
  5. [6]
    The table issue would be addressed i.e. fixed in position, a possible increase in the caravans payload could be achieved, reimbursement for unexpected wiring but not the towbar hitch, rectifying/detailing of marked windows, assurances of the excellence of Apollo warranty and the appointment of a new Apollo person with whom to deal, a salesman named Graham. Given Mr Harris’s proactive approach the Butlers felt renewed confidence in Apollo’s capability to produce a quality product.
  6. [7]
    The Butlers went ahead and had the Ford Rangers suspension adjusted. A second hand over attempt took place on 24 July 2018. But there were problems. The caravan’s and the Ford Ranger’s camera sockets were incompatible. The caravan had a 4-pin socket fitted, the Ford Ranger a 5-pin socket fitted. The next day 25 July 2018 the Butlers had a 4-pin socket fitted at their expense to the Ford Ranger.
  7. [8]
    The caravan was hitched to the Ford Ranger and towed to the Butlers’ Airbnb address at Belmont. During the unhitching process the caravan, despite its handbrake being applied, rolled forward. RACQ assistance was sought. It transpired the notched park handbrake lever though fully engaged to nearly vertical position at notch 11 maximum strain failed to secure the caravans brakes.
  8. [9]
    The handbrake had not been adjusted properly. It should have been operating between notch 5-6. The caravan was temporarily secured. Contact was made with Apollos after sales manager Shay who arranged for 2 technicians to attend the following day 27 July 2018. Assertedly those two technicians, one of whom was the person Raj, confirmed the correct notch setting at 5-6. The handbrake was reset. The Butlers also stated Apollo’s caravan handbook read “it is imperative that the park brake lever engages and secures the brake on the 5th or 6th notch of the coupling”.
  9. [10]
    Some days later the Butlers travelled to a caravan park on the Gold Coast and within a couple of weeks found 3 leaks. One from the shower door onto the floor, one from the kitchen sink main drainage and one from the cartridge for the water filter. Subsequently on 24 August 2018 a freak storm passing the caravan park ripped away the caravans 18-foot awning. The insurer was notified and an awning repairer Paul Greaves from Carafix attended.
  10. [11]
    Mr Greaves, noting the caravan as new, offered to have some warranty issues attended to at the same time with no extra charge to Apollo. Mr Greaves identified the 3 leaks as a lack of quality control. He thought he could clean up the windows, could arrange proper width sheer curtains for the windows, seek a new door handle to replace the scratched defective one, source missing parts to the Dometic windows, replace faulty gas struts to hold the bed up. Extra support for the awning was considered necessary but the installation of such being an unauthorized modification would void Apollo’s warranty.
  11. [12]
    Mr Greaves offered to deal with Apollo’s after sales manager Shay. In due course Apollo’s Shay agreed to some repairs and the awning was replaced however, there was no authorization from Apollo for the fitting of additional awning supports. At this point Mr Greaves indicated it would be preferable for Apollo to carry out any additional awning support work. Thus ended Mr Greaves involvement.
  12. [13]
    Subsequently on 4 February 2019 a leak coming from the roof hatch above the bed was found. This prompted the immediate attendance of Allan Parsons of All Caravan Repairs who removed and resealed the hatch over the bed at a cost of $210.00. He noted at the time
    1. (a)
      Roof sagging, water pooling around the hatch.
    2. (b)
      Roof sagging due to insufficient air conditioner support
    3. (c)
      Very poor sealing silicone work on remaining hatches
    4. (d)
      No sealant under hinge joints
    5. (e)
      Appeared to be no surface priming of plastic
  13. [14]
    Allan Parsons’ invoice for $210.00 was submitted to Apollo’s Cameron Smith, the newly appointed successor to Shay. Apollo promptly reimbursed the Butlers the $210.00. As the list of warranty issues appeared to be growing a meeting with Apollo’s Cameron Smith was arranged for 15 April 2019. The Butlers prepared and furnished to Apollo a list of defects and concerning issues some 30 items.
  14. [15]
    In due course it was arranged for the caravan to be delivered to Apollo on Monday 19 August 2019 and collected the following Friday. The issue of awning supports had remained outstanding. Apollo was unwilling to address it. On the weekend prior to the Monday’s caravan delivery to Apollo, the Butlers parked the caravan at hotel premises near to Apollo’s premises. The gas to operate the fridge was left on. On re-entry there was a noxious smell consistent with burnt out electric or plastic components such as to make the caravan uninhabitable. This issue as well as the caravans lifting floor were added to the Butlers list of defects and issues now totalling some 46 items. This list included the following:
    1. (a)
      The other two hatches (one over the living and one over the shower) need removing, priming and sealing otherwise we will have further leaks the same as the recent claim sent to you.
    1. (b)
      Fix the sagging roof.
    2. (c)
      Provide sufficient and necessary support for the air conditioner.
    3. (d)
      We ask that all ceiling generally be checked as this has been a feature (lack of) since delivery.
    4. (e)
      Entrance door – handle still not replaced.
    5. (f)
      Door is out of line.
    6. (g)
      Club lounge both sides – sheer curtains are way too skimpy and don’t even meet.
    7. (h)
      H&C on shower wrong way round.
    8. (i)
      Stabilizers too long for the purpose and the van is almost always not stabilized due to this.
    9. (j)
      Some insulation is required for intense heat from the microwave including when it is not being used … also the heat after using goes into the open shelf above and makes everything there very hot. Also into the area above which houses all the screen data control.
    10. (k)
      Issues with the table – you are going to think about what could be done.
    11. (l)
      Tunnel boot rubber still allows water in after raining/heavy dew. Silicone did not work.
    12. (m)
      Kitchen cupboard above the extractor fan is not aligned.
    13. (n)
      Decals/logos – black are missing – again mentioned before last year.
    14. (o)
      Windows were badly marked before we took delivery. All the windows appear to be affected with marks that do not respond to cleaning. Marks are still there after three unsuccessful attempts to clean the windows up. We want them replaced.
    15. (p)
      TVs malfunctioning.
    16. (q)
      Antenna – unable to watch TV antenna not functioning.
    17. (r)
      The filter tap in the sink requires a stop valve to be fitted.
    18. (s)
      Floor in front of kitchen area is lifting – not a bubble but a large area.
    19. (t)
      Water tank monitor only shows reading for tank 1.
    20. (u)
      Unhealthy bad smell (toxic) when fridge is running on gas.
  15. [16]
    Upon arrival on Monday 19 August 2019 a copy of this latter list was given to Cameron Smith and the person Raj, though it appeared Cameron Smith had his own list but it was not offered to the Butlers. Some items were agreed upon. Window replacement and sheer curtains in the club lounge and subsequently the fitting of cross country decals. As well, authorization for extra awning supports was given but the noxious fumes experienced shortly prior remained unaddressed. The floor lifting was under consideration.
  16. [17]
    Prior to leaving the Butlers noticed the extrusions on the outside of the front of the caravan fading despite having paid some $2,000.00 extra for RVGARD to be applied as a protectant. An extension was sought to Wednesday 28 August 2019 by Apollo to complete the repair works. Cameron Smith wanted Dometic the window manufacturer to supply and fit new windows. Additionally the lifting floor required attention.
  17. [18]
    On 28 August 2019 the Butlers attended Apollo’s premises. Cameron Smith advised the caravan roof had been checked. There was no sagging. The two hatches had been sealed. Apollo confirmed having no complaints about Allan Parsons’ hatch work in February 2019. The vinyl floor had been reglued. On the spot two nonworking Axis TVs were replaced with two RV Media TVs. The entrance door handle had been replaced though the Butlers thought the door still to be out of alignment. The person Raj had assertedly stated Dometic doors were always out of alignment and sagging because they are heavy doors. Cameron Smith denied the door was sagging. The Butlers considered there were contradictory statements forthcoming from Cameron Smith and Raj.
  18. [19]
    Apollo considered the club lounge curtain issue resolved. For each window a third curtain had been installed but it was shorter than the other two in each case. The Butlers thought it looked ridiculous. They complained.
  19. [20]
    The Butlers, hopeful that all repairs had been attended to, collected the caravan and took it to their next caravan park. Within a short time the entrance door became even more stiff than previously. Nor was there any improvement in the lifting floor.
  20. [21]
    There were some minor issues, a mark on the door blind, a scratch on the fridge, shelf disturbance, some sealant around handles and some brown stains around taps.
  21. [22]
    The Butlers requested a job sheet recording repairs carried out. They received a response from a person nominated as the resolution manager attaching a list she claimed was a list of points emailed between the Butlers and Apollo. But the Butlers said they had never seen any such list. The only list ever produced on 19 August 2019 being their own.
  22. [23]
    By this stage the Butlers were, at the very least, apprehensive about dealing further with Apollo. The Butlers asserted at the time of collecting the caravan on 28 August 2019 Cameron Smith had agreed to forward the following
    1. (a)
      Instructions for the BM Pro instrument panel above the microwave – since received
    1. (b)
      New set of curtains for each window of the club lounge – since refused by the resolution manager
    2. (c)
      Missing TV part not fitted originally – never received
    3. (d)
      Small round covers to suppress banging doors and drawers – since refused by resolution manager
    4. (e)
      The requested work sheet since refused by the resolution manager
  23. [24]
    The Butlers asserted unaddressed issues around the position of the microwave; that burning smells emit from the microwave when in use. More recently the appearance of condensation and steam on the outside and inside of the microwave when in use with condensation in the electronics cupboard and on the BM Pro screen housing information for the gas, water, solar, battery, watertanks and pump with the functionality of the BM Pro system being compromised.
  24. [25]
    There was reluctance to use any of the gas functions that is oven, gas hob, fridge, water heating for safety reasons given the noxious fumes issue with the fridge. That meant they could only park the caravan at powered sites precluding off grid and free parking usage.
  25. [26]
    The caravan has two water tanks but there appears to be only one inlet. They indicated that Cameron Smith and Raj had different versions of how the tanks work leaving them in the dark.
  26. [27]
    Post-August 2019 they reluctantly decided to store the caravan resulting in more expensive accommodation.

Report by Allan Parsons All Caravan Repairs and Servicing dated 7 December 2019 produced to the Tribunal

  1. [28]
    Mr Parsons carried out inspections on 28 September 2019 and 11 October 2019. Initially he stated the caravan had been looked after well, was still in showroom condition. There was no visible wear on tyres, extremely low kilometres travelled since new. He then addressed issues as follows (précised here) together with a multiplicity of photos in support.
  1. The caravan vinyl floor has not been glued down correctly. The vinyl is lifting with expansion and contraction causing the vinyl to lift and bubble resulting in a tripping hazard, a safety issue. He considered to rectify the vinyl floor would cost in excess of $100,000.00 as the caravan would need to be stripped down to bare chassis and floor and then rebuilt.
  1. Fridge, microwave and main electrical switchboard with electronic displays all in one cabinet – poorly designed, causing multiple issues. There was a fire risk in that cabinet and a health hazard from toxic fumes.
  1. The absorption fridge uses heat to drive the cooling process causing excessive heat to rise into the above microwave and electronic and electrical switchboard. Then microwave is venting steam and heated air into the main electronics/electrics compartment.
  1. A very strong smell of burnt electrical equipment present at the time of inspection.
  1. 12 volt power control unit has failed after repair. The one piece of insulation above the fridge has been fitted and taped in place.
  1. The new insulation was blocking the microwave from venting through the cable entry points and being the most likely cause for the electronics to fail from excess heated steam trapped inside the 3-in-1 cabinet.
  1. Unusual stains/discoloration inside the microwave consistent with overheating from the fridge.
  1. Fridge cabinet very poor and inadequate retrofit insulation
  1.  Top of fridge cabinet not insulated so excessive steam and heat from fridge enters microwave cabinet and microwave then rising to the electronics cabinet creating a greenhouse effect inside the electrics cabinet.
  1.  Sides of fridge not insulated allowing burnt gas fumes and heat to enter the cabin area through the cable entry points.
  1. Retrofitted insulation of top vent almost completely blocked microwave cabinet from venting.
  1. Microwave oven cabinet has no vents to outside air, all steam inside cabinet rises to electronics.
  1.  the only means of venting for the microwave heated steam is through electrical cable entry points. These cable entry points were mostly blocked by retrofitted fridge vent insulation.
  1. Fridge cabinet needs to be insulated correctly and properly vented according to manufacturer’s specifications.
  1. Caravan main entry door is out of square approximately 5-7 millimetres.
  1. Front roof hatch – no adhesive of sealant to roof or hatch.
  1. Caravan roof sagging by approximately 10 millimetres allowing water pooling as well as accumulation of dirt. He considered the caravan should have been designed to avoid dishing which resulted in water pooling.
  1. Front fibreglass corner moulds faded
  1. Sheer curtains too narrow to cover windows
  1. Truma hot water heater inoperative – gas flow issues.
  1. [29]
    Mr Parsons listed a number of possible solutions as follows:
  1. To rectify the vinyl alone I would need to strip down the caravan to the bare chassis and floor and then re­build.
  1.  

a. Fridge cabinet needs to be insulated correctly and properly vented according to the manufacturer's specifications and gas regulation.

Also needs frame replaced and refitting correctly as well as checking condensation issue. Floor will need minor buffing.

b. Microwave cabinet needs to be adequately vented to outside and isolated from fridge and electrical cabinet

c. Microwave needs to be replaced due to marks as mentioned in point 8, also burnt smell as mentioned in point 2.

d. Electrical cabinet needs to be isolated from fridge and microwave cabinet to prevent heat and steam entering into electrical components.

e. Likely replacement of TREK BM PRO which is now not operating.

f. The cabinet housing the above will have to be modified.

g. The source and cause of the over-heating of electronic or similar parts. as well as those parts themselves, need to be identified, removed and replaced with a safe alternative.

  1. Remove door and refit square (possible side wall door cut-out is out of square and may be very difficult to correct.) Adjust to operate correctly. Replace blind which is fraying and marked after taking in for repair in August by owners.
  1. Front hatch will need to be removed, cleaned, primed and resealed, the same as rear roof hatch over bed had to be removed and resealed because of roof leaks.
  1. Roof sagging - due to poor manufacturing as well as possible poor design this could cause other issues and is probably impossible to repair. The sagging roof is a major factor in this caravan which cannot be rectified easily. Even the lesser problem of retaining dirt and debris is really bad for a new caravan especially.
  1. Exterior corner moulds faded: Possible solutions - These could be achieved by, colour matching and two pack spray painting, to keep in good condition and durable
  1. Curtains mismatched and do not work as should - replace with correct widths to be the same as ones in the bedroom area which do work for their purpose.
  1. Return to a Truma service agent for repairs/replacement.

Apollo’s response

  1. [30]
    In its response Apollo stated:
    1. (a)
      the roof was not sagging
    1. (b)
      unable to see lifting of the floor
    2. (c)
      hatches are adequately sealed
    3. (d)
      no fumes were ever smelt within the motor home
    4. (e)
      the Butlers have never been obstructed rather more time spent with them than other customers
  2. [31]
    Apollo produced to the tribunal a report by R&R Refinish Pty Ltd – Mr Daniel Whally.
  3. [32]
    The report is undated but probably produced late May or June 2021 and responds to 12 issues assertedly based on a 12 point list of topic references prepared in January 2021 for mediation as follows
    1. (a)
      Excessive movement in vinyl floor – concludes adhesion failure in two main areas. Rectification is to apply a small incision in the laminate flooring, inject a bonding agent vinyl repair the incision to achieve a non-visible finish.
    1. (b)
      Damaged electronics, failure of microwave and 12 volt system – (Recommendation 1) to check major 240 volt appliances by a licensed professional (Recommendation 2) replace 12 volt display/switchboard unit and test all 12 volt accessories (Recommendation 3) fridge insulation and retrofit insulation not compliant with gas regulations. The report says unable to comment as the previous inspector had removed the insulation which he believed to be the problem and recommends a certified gas inspection.
    2. (c)
      Fridge exhaust gases – carbon monoxide may enter the living area and is experienced when fridge is operated on gas, fumes present when operating. Stated the correct exhaust flue is fitted to the rear of the fridge and a ventilation fan installed with an upper and lower vent to the outside of the van as per regulations.
    3. (d)
      The van requires a gas inspection by a licensed technician, any repairs/modifications completed and a current gas certificate issued
    4. (e)
      Fire risk due to lack of critical information on the resulting defunct information panel meaning that the water pump could burn out if it is running when the water tanks are empty. The BM Pro does have an audible alert to cut power to all accessories once voltage drops below normal operational levels. This is a safety feature to prevent accessories running on. The comment is that when operating correctly the BM Pro unit clearly displays the water pump and tanks status on the left hand side of display.
    5. (f)
      Fire risk from faulty Truma hot water heater – could not test due to no access to 240 volt mains power. The hot water unit appeared to be in good condition with plumbing and gas lines secured. Rectification – sent to Truma for repairs under warranty
    6. (g)
      The door is out of line and hard to open due to poor fitment from factory. Rectification is removal and adjustment for smooth operation.
    7. (h)
      The roof is sagging approximately 10 millimetres through the centre of the roof. The cause is recorded as lightweight building materials hence a lower flexural strain rating compared to traditionally built alloy clad caravans. The rectification states the van has load distribution bars present for the air conditioning unit that is within standard tolerances.
    8. (i)
      Hatches are not adequately sealed. No issues visually observed. Rectification was to water test the van under a rain simulator, determine cause of ingress and reseal.
    9. (j)
      Paint extensively failing on extrusions on the front of the caravan. Cause was considered to be failure of powder coat application with rectification being to paint with automotive industry related 2 part paint.
    10. (k)
      Curtains on one window are not what was agreed several times. Rectification was to fit correct curtains and test to insure they are of correct length and width.
    11. (l)
      Large amount of mould throughout the van, particularly left hand front area (house entry, dinette and lower storage area). Cause: upon inspection we have noted large areas of visual deterioration of seals. Area of concern is the overhead left hand extrusion with 200 millimetres of unsealed extrusion allowing water to gain access to internal cabinetry, behind fridge panels and dinette areas. As sealant is a perishable product, this is a major part of annual services which should have been noted in the vans annual service history paperwork (if any).

Rectification

  1. [33]
    Water damage and large amounts of mould are visible in the front half of the van. This will require replacement of some cabinetry and soft furnishings along a mould removal expert to sign off on this prior to handover. The van will require all roof components to be removed, cleaned and resealed, followed by a thorough water test.

Mr Parsons follow up report dated 10 June 2021

  1. [34]
    This report was prepared at the request of the Butlers because (1) they had been stranded in New Zealand February 2020 to 23 April 2021 due to covid movement restrictions (2) there had been a leak in the stored caravan while they were away resulting in presence of black mould. Mr Parsons inspected the caravan on 15 May 2021. He said black mould had caused extensive damage across the lounge front area along with the storage compartments including the tunnel boot. Though caravan was uninhabitable it still looked in excellent condition and well cared for. He found a leak coming in from misaligned extrusions.

There was a large gap seen from the side above the window, near side, to the left hand side of the entrance door. This now appeared to be filled with black mould too, with a run down of dirty water on the fibreglass wall. I checked the roof. The same gap continued onto the roof and directly above the mouldy area inside the caravan below

  1. [35]
    Mr Parsons checked along the join between the 2 extrusions using a knife to discern insufficient sealant. He examined where the extrusion joins the roof using a paperclip again discovering absence of sealant. He stated the leak was the result of lack of both priming and sealant in the first place (concerns about which he expressed in February 2019) and never corrected in August 2019. He noted there was no capping to go over the two extrusions that failed to meet together and were misaligned. Adequate sealing would have prevented leaks, fitting a capping would have added protection on the area of a caravan prone to leaks.
  2. [36]
    He said the door remained out of line as before resulting in a separation of the door frame plastic surrounds of about 5 millimetres. The floor still bubbled. The BM Pro unit was still broken. Ventilation was still a fire risk. On the outside front grey extrusions fading had spread further and the extrusions themselves were in a terrible condition. He considered all the issues he had seen with this caravan represented very bad design, poor quality of workmanship and/or really bad examples of manufacturing.
  3. [37]
    Mr Parsons replied to R&R Refinish Pty Ltd Report by Mr Whally. He considered Mr Whally’s schedule did not correlate to his reports of late 2019 and June 2021. He took issue with Mr Whally’s schedule as follows.
  1. (a)
    Excessive movement in vinyl flooring. He did not agree with the injecting of epoxy resin through a small incision in the vinyl to achieve a non-visible finish; that delamination of foundation material amounts to structural failure; that needing to cut slits in laminated flooring confirms the caravan floor is structurally faulty and delaminating; that by cutting slits future problems would occur from dirt, dust, water and mud entering the slit; that the floor will never look the same. He considered that the caravan needed to be stripped down to bare chassis and rebuilt
  1. (b)
    Damaged electronics. Mr Parsons considered Mr Whally’s comments irrelevant. The microwave and its related ventilation issues are apparent without the use of power.

(b) (c) (d) (e) (f) Damaged electronics, fridge insulation, fridge exhaust gasses, fire risk due to lack of critical information, fire risk Truma hot water heater.

Mr Parsons said the main issue here generally was lack of dedicated ventilation. He said aluminium foil was retrofitted by Apollo to direct gasses and heat outside, worsening the ventilation to the microwave which suffered burn marks, excessive steam with a lot of wet everywhere and nowhere to escape. As he reported in 2019 he considered this a fire risk which is why he removed the retro aluminium which was taped in place. The aluminium was folded flat. It was not removed from site. It was even visible in Mr Whally’s photos. Simply replacing the BM Pro unit and obtaining another gas certificate were not solutions.

  1. (g)
    Door out of line. Mr Whally’s sentence “there is a visual daylight gap looking from the inside out when the door is open” did not make sense.
  1. (h)
    Roof sagging. He said the water ponding and leaking roof were not addressed.
  1. (i)
    Hatches not adequately sealed. Mr Parsons considered Mr Whally concurred with his 10 June 2021 report with respect to defective sealing at the roof directly above water ingress. He considered that a major failure on a caravan less than 3 years old. He stated that whilst sealant is a perishable product it should remain effective for well over 5 years. Correct sealing was essential for durability and fit for purpose. Given that the leak causing mould first entered the caravan in a concealed area it was anybody’s guess when it occurred. But it was all the same a manufacturing defect, the accountability for which can not be passed onto maintenance. He reiterated that whilst resealing the rear hatch which had leaked in February 2019 he reported his concerns regarding sealing issues on the other two hatches and around the roof. He said he found Mr Whally’s comment that “the owners have had the van sealed by an external repairer” misleading. If Mr Whally was implying he Mr Parsons resealed the whole caravan that was incorrect. He understood that the rear hatch was the only exterior resealing work done on the caravan
  1. (j)
    Fading roof extrusions. Mr Whally’s suggestion of applying automotive industry paint was what Apollo had apparently done to fix the fading previously and it lasted only a week. Mr Whally was suggesting the same failed application.

(k) Curtains. Mr Whally agreed with his statement that the curtains did not satisfy their purpose.

(l) Mould. Dealt with above.

Generally

  1. [38]
    Mr Whally had concerns that the awning replaced previously if not fitted correctly might be a cause of water ingress. Mr Parsons stated there was no evidence of water ingress related to the awning replacement. He said the Butlers had the awning replaced by Apollos authorized agent with exactly the same brand, model, size and type in the same position as fitted in the factory

Conclusions

  1. [39]
    After some delays and miscommunications the Butlers took possession of the caravan on 25 July 2018. Initially there was a hitching process problem due to an unadjusted handbrake on the caravan that was fixed within a matter of a day or so. Then within a couple of weeks three leaks were observed which were required to be fixed. At that point windows were unable to be properly cleaned, sheer curtains were inadequate, door handles scratched and defective, missing Dometic window parts and bed gas struts faulty. In February 2019 the roof hatch above the bed leaked. It was repaired by Allan Parsons at a cost of $210.00. At the time he identified roof sagging, absence of sealant under hinge joints, absence of surface priming of plastic and poor sealing silicone work around the remaining 2 hatches.
  2. [40]
    In the period February 2019 to 15 April 2019 the list of issues grew to some 30. On 15 April 2019 a meeting took place. However warranty work was not able to be commenced until 19 August 2019. In the interim the list had grown. By 19 August 2019 there were some 46 items. It is not necessary to repeat all the pertinent items on that list. Suffice to say a number were serious. The 46 point list was given to Apollo’s Cameron Smith and the person Raj. Apollo had the caravan for 10 days 19 August 2019 through 28 August 2019. The Butlers were assured at the end of that time that all defects had been rectified, that all was well for full usage of the caravan. The Butlers were not furnished with any paperwork of rectification work carried out by Apollo for example a job sheet recording what was done.
  3. [41]
    A number of issues were identified subsequently as not addressed. Mr Parsons was retained to report on the caravan’s condition. He conducted two inspections 28 September 2019 and 11 October 2019. His summarised report and possible solutions are already set out here. By any measure the report is damning. A number of items can be readily construed as major faults. The 3 in 1 cabinet fridge microwave switchboard and the overheating/steam condensation toxic fumes constitute a health hazard as could the trip hazard state of the bubbling vinyl floor. Lesser issues can readily accumulate to become a major issue or issues[1] such as lack of insulation on the sides of the fridge, entry door out of plumb, lack of sealant front roof hatch, water pooling on roof, fibreglass moulds fading, sheer curtains too narrow, inoperative water heater.
  4. [42]
    It is clear any solution would be a hugely expensive undertaking. On 4 February 2020 the Butlers filed their claim in QCAT. In February 2020 the Butlers departed for a time in New Zealand but due to COVID restrictions intervening could not return to Australia until 23 April 2021 some 14 months later. Upon returning they find the interior of the caravan badly mould affected. Apollos initial response generally denied there were any issues to be addressed.
  5. [43]
    Latterly Apollo obtained its own report from R&R Refinish Pty Ltd. That report provides commentary but does little to explain away the state of the caravan. Patching of the vinyl flooring is suggested, hardly an acceptable solution for a $84,000.00 odd caravan. It is trite to say vinyl flooring is best laid in one piece. Joins are a weak point. Replacement of the display/switchboard is suggested without addressing the cause of malfunction in the first place.
  6. [44]
    With respect to the fridge, a certified gas inspection is recommended. With respect to noxious fumes around the fridge, it is suggested a current gas certificate be issued. With respect to the Truma hot water heater, send it back for repairs under warranty. With respect to the roof sagging, some commentary about lightweight construction. With respect to the hatches, determine cause of water ingress and reseal hatches. With respect to faded extrusions, use automotive paint. With respect to mould, notes large areas of visual deterioration of seals, the caravan interior requiring removal of some cabinetry and soft furnishing. With respect to the exterior roof components, to be removed cleaned and resealed.
  7. [45]
    Here there is a glaring major fault now present and on which Mr Parsons and Mr Whally generally agree, that is, large scale mould infestation due to sealant failure. Durability has been compromised to the point of complete failure. Here there is not one major fault but a multiplicity of major faults together with numerous minor faults which cumulatively can be construed as a major fault or faults.

Australian Consumer Law (ACL) remedies

  1. [46]
    Section 260 of the ACL addresses when a failure to comply with a guarantee is a major failure. That includes where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or goods when sold by description depart from that description or if supplied by reference to a demonstration model depart from that description. Here it is clear from the distress exhibited in the Butlers material that they would not have purchased the caravan knowing it would be a virtual write off within three years. Throughout, Apollo’s conduct appears dismissive and patronising. On the other hand the chronology points to the Butlers being fastidious though not necessarily pedantic buyers. At $84,000 odd they were entitled to be so.
  2. [47]
    The Butlers seek a refund. In order to do so they are required to reject the caravan within the rejection period as defined in section 262 (2) of the ACL.
  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. (a)
    the type of goods; and
  1. (b)
    the use to which a consumer is likely to put them; and
  1. (c)
    the length of time for which it is reasonable for them to be used; and
  1. (d)
    the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.
  1. [48]
    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. [49]
    The Butlers were not only proactive on their own account to identify the cause of the defects but did everything conceivable to engage with Apollo in the period July 2018 through August 2019 to correctly identify the cause of the defects. By June 2021 the caravan can be categorised as a virtual write off, unrepairable. This proceeding was commenced on 4 February 2020. In these circumstances the tribunal is satisfied the Butlers rejected the caravan within the rejection period.
  2. [50]
    Given the aforesaid the Butlers are entitled to a refund of the purchase price of $83,478.30 upon return of the caravan to Apollo the supplier.
  3. [51]
    Whilst there was a further claim for $11,440.00 initially and sought to be increased later it centred around accommodation, inspection costs, inconvenience and storage. There was no calculable differential proffered by the Butlers between these expenses and what expenses would have been incurred in the absence of the issues arising with caravan over time. It is not good enough to simply produce invoices or estimates of what might be incurred in the future to ground a claim for a specific sum of money.
  4. [52]
    The Butlers are entitled to a refund of the purchase price of the caravan $83,478.30 together with $700.00 being the cost of the Sirocco fans supplied by them for installation in the caravan together with Mr Parsons reports $140.00 and $350.00 a total of $84,668.30.

Orders

  1. John Butler and Shirleyann Butler shall return the caravan the subject of these proceedings to Apollo Motorhome Holidays Pty Ltd within fourteen days of the date hereof in exchange for payment by Apollo Motorhome Holidays Pty Ltd to John Butler and Shirleyann Butler of $84,668.30.

Footnotes

[1]Kalbar Financial Services Pty Ltd v LSH (Brisbane) Pty Ltd trading as Mercedes Benz Brisbane [2020] QCAT 346.

Ashe v Vehicle Auctions Australia Pty Ltd [2020] QCAT.

Close

Editorial Notes

  • Published Case Name:

    Butler and Anor v Apollo Motorhome Holidays Pty Ltd

  • Shortened Case Name:

    Butler v Apollo Motorhome Holidays Pty Ltd

  • MNC:

    [2021] QCAT 417

  • Court:

    QCAT

  • Judge(s):

    Member Bertelsen

  • Date:

    01 Dec 2021

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
Ashe v Vehicle Auctions Australia Pty Ltd [2020] QCAT 500
1 citation
Jump To
Cite 1 - [2020] QCAT 500
Kablar Financial Services Pty Ltd v LSH Auto (Brisbane) Pty Ltd trading as Mercedes-Benz Brisbane [2020] QCAT 346
2 citations
Jump To
Cite 1 - [2020] QCAT 346
Cite 2 - [2020] QCAT 346
Nesbit v Porter [2000] 2 NZLR 465
2 citations
Jump To
Cite 1 - [2000] 2 NZLR 465
Cite 2 - [2000] 2 NZLR 465

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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