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CITE

Unreported Judgment

Mathieson v Green RV Pty Ltd[2023] QCAT 193Member Cranwell
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Mathieson v Green RV Pty Ltd[2023] QCAT 193

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	Mathieson v Green RV Pty Ltd [2023] QCAT 193
PARTIES:	EWEN MATHIESON (applicant) V GREEN RV PTY LTD (respondent)
APPLICATION NO/S:	MVL213-22
MATTER TYPE:	Motor vehicle matter
DELIVERED ON:	29 May 2023
HEARING DATE:	25 May 2023
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
ORDERS:	Ewen Mathieson is required to return the caravan the subject of these proceedings to Green RV Pty Ltd within 14 days of the date of these orders. Green RV Pty Ltd is required to pay to Ewen Mathieson the amount of $67,000 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 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 Haisman v Drive (Aust) Pty Ltd [2020] QCAT 44 Medtel Pty Ltd v Courtney (2003) 130 FCR 182
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented

REASONS FOR DECISION

Preliminary matters

[1]
On 11 October 2022, Mr Mathieson (the applicant) filed an application – motor vehicle dispute with the Tribunal. The respondent is Green RV Pty Ltd (the respondent).
[2]
The applicant entered into a contract with the respondent on 14 July 2021 to purchase a new 20’6 Discoverer RDC206 caravan (the caravan). The purchase price was $67,000.
[3]
‘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.

[4]
The applicant’s caravan falls within this definition.
[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.
[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.

Australian Consumer Law provisions

[7]
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’.
[8]
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.
[9]
Sections 54(2) and (3) of the Australian Consumer Law define acceptable quality as follows:

(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

(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

(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.

[10]
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

[11]
The applicant’s evidence may be summarised as follows:
1. (a)
  The applicant entered into a contract with the respondent for the purchase of the caravan on 14 July 2021.
2. (b)
  The applicant was told by the respondent that if he paid the full purchase price up front, rather than just a deposit, the caravan could be ready for collection at the end of the following week. The applicant duly paid the full amount.
3. (c)
  When the applicant attended the respondent’s premises to collect the caravan, he found the caravan to be in poor condition with structural cracks around the windows.
4. (d)
  The applicant refused to take delivery of the caravan and requested a refund.
5. (e)
  The respondent refused to provide a refund, and after three months the applicant collected the caravan as he did not want the respondent to have both the caravan and his money.
6. (f)
  The first time it rained after the applicant collected the caravan, the caravan leaked.
[12]
The applicant’s evidence was not contested, and I accept his evidence.
[13]
The respondent helpfully provided a condition report from All Clear Inspections dated 23 January 2023. Relevantly, the report provided:

External

Front:

Front window guard broken to lhs edge

Front window guard missing Rhs gas strut and bracket

Front window top lhs hinge loose, causing water leaking internal

Front window has many fractures to the outer frame, causing water leaking internal

…

Nearside:

Front access hatch has many fractures to the outer frame

Front window has many fractures to the outer frame

Kitchen window has many fractures to the outer frame

…

Offside:

Front access hatch has many fractures to the outer frame

Dinning (sic) window has many fractures to the outerframe

…

Internals:

Water damage to tunnel boot/bed divider ply panel

Water damage to tunnel boot/hws divider ply panel

…

[14]
I accept the findings set out in this report.
[15]
Given these issues were in existence at the time the applicant attended to collect the caravan, I am satisfied that the defects were present at the date of supply.
[16]
In circumstances where the caravan has multiple instances of fractures to the window frames causing water leakage and internal damage, 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 being acceptable.

Remedies

[17]
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:

(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 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

(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

(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.

[18]
For the reasons already given, I find that the defects set out above are such that a reasonable consumer fully acquainted with the nature and extent of the failure would not have acquired the caravan. Indeed, when he became aware of the structural cracks around the windows, the applicant refused to take delivery of the caravan.
[19]
In the event that I am incorrect, and the failure to comply with the guarantee of acceptable quality is not a major failure, the remedies available to the applicant are set out in section 259(2) of the Australian Consumer Law:

(2)
If the failure to comply with the 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.

[20]
The respondent had possession of the caravan for three months after the applicant refused to take delivery. In my view, this was a reasonable time for the respondent to have attended to repairs (either temporary or permanent) to the window frames to prevent water leakage and internal damage. However, when the applicant collected the caravan after three months, the caravan leaked water the first time it rained. In these circumstances, the applicant was entitled to reject the caravan pursuant to section 259(2)(b)(ii).
[21]
For completeness, I note that the respondent’s position in these proceedings, as set out in the response and/or counter application – motor vehicle dispute, is that the caravan ‘is covered under manufacturers warranty and we stand ready willing and able to assist this customer where warranty is applicable’. However, a reasonable time for undertaking repairs has long since passed.
[22]
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

(d)
the amount of use to which it is reasonable for them to be put before such a failure becomes apparent.

[23]
The applicant promptly sought a refund at the time he refused to take delivery of the caravan. In these circumstances, I am satisfied that the applicant rejected the motor vehicle within the rejection period.
[24]
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).
[25]
I note that the applicant has sought a refund of $75,367. This amount differs from the contractual purchase price of $67,000. The applicant explained the difference in price was because the market value of the caravan has increased. The applicant’s entitlement under the Australian Consumer Law is to a refund of the purchase price actually paid for the goods, irrespective of whether this is higher or lower than the current market value.

Orders

[26]
The orders of the Tribunal are:

The applicant is required to return the caravan the subject of these proceedings to the respondent within 14 days of the date of these orders.
The respondent is required to pay to the applicant the amount of $67,000 within 28 days of the date of these orders.

Editorial Notes

Published Case Name:
Mathieson v Green RV Pty Ltd
Shortened Case Name:
Mathieson v Green RV Pty Ltd
MNC:
[2023] QCAT 193
Court:
QCAT
Judge(s):
Member Cranwell
Date:
29 May 2023

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd	View on:JADE[2016] NSWCATCD 90	2 citations Jump To Cite 1 - [2016] NSWCATCD 90 Cite 2 - [2016] NSWCATCD 90
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

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

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Mathieson v Green RV Pty Ltd[2023] QCAT 193