Hodges & Anor v Let's Go Caravans Pty Ltd
[2023] QCAT 224
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Hodges & Anor v Let's Go Caravans Pty Ltd[2023] QCAT 224
- Add to List
Hodges & Anor v Let's Go Caravans Pty Ltd[2023] QCAT 224
Hodges & Anor v Let's Go Caravans Pty Ltd[2023] QCAT 224
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hodges & Anor v Let’s Go Caravans Pty Ltd [2023] QCAT 224 |
PARTIES: | neil andrew hodges (first named applicant) ROBYN HODGES (second named applicant) v let’s go caravans pty ltd (respondent) |
APPLICATION NO/S: | MVL098-22 |
MATTER TYPE: | Motor vehicle matter |
DELIVERED ON: | 21 June 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
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 Corporations Act 2001 (Cth), s 109X Fair Trading Act 1989 (Qld), s 50A, s 50C Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 40 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 Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520 Nesbit v Porter [2000] 2 NZLR 465 |
REPRESENTATION & 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
Introduction
- [1]On 11 May 2022, Mr and Mrs Hodge (the applicants) filed an application – motor vehicle dispute with the Tribunal. The named respondent is Let’s Go Caravans Pty Ltd (the respondent).
- [2]The second named applicant entered into a contract with the respondent on 18 September 2021 to purchase a 13’ X-Scrape Offroad 2021 caravan (the caravan). The purchase price was $45,240.
- [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 second named applicant’s caravan falls within this definition.
- [5]The applicants seek relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth). The relief sought by the applicants is a refund plus damages.
- [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.
- [7]I note that as the contract was between the second named applicant and the respondent, the second named applicant is to be regarded as the ‘consumer’ for the purposes of the Australian Consumer Law.
Procedural history
- [8]The respondent is a company. Section 109X(1)(a) and (b) of the Corporations Act 2001 (Cth) provides that service on a company may be executed at the company’s registered office, or by personal service on a director.
- [9]The applicants attached a copy of a company extract in respect of the respondent to the application, which listed the respondent’s registered address as ‘5, 2481 Gold Coast Highway, MERMAID BEACH QLD 4218’.
- [10]On 2 June 2022, the applicants filed an affidavit of service indicating that service was attempted by post at ‘PO Box 1917 Broadbeach QLD 4218’.
- [11]On 27 July 2022, Member Bertelsen made the following direction:
Neil Andrew Hodges and Robyn Hodges must establish that the Form 59 Application – Motor Vehicle Dispute has been given to Let’s Go Caravans Pty Ltd at 49 Johnston Street, Southport by filing an affidavit of service or a form of acknowledgement from the Let’s Go Caravans Pty Ltd, by 4:00 pm on 10 August 2022.
- [12]On 11 August 2022, the applicants filed another affidavit of service indicating that service was attempted by post at ‘49 Johnston St, Southport Q 4215’.
- [13]
Kent Smith MD at Letsgo Caravans has asked me to contact you regarding the documentation for the issue in the title.
The dox that were sent had an incorrect address and reference number and have been returned to sender.
Can you provide the details of the issue via email, to [email protected] copy me please, as he is unaware of the issue.
Should a hard copy be mandatory can you send to 49-51 Johnstone St Southport QLD 4214 please.
- [14]On 21 September 2022, at a directions hearing, Member Bertelsen made the following order:
Service of the Application be effected by substituted service by forwarding by email a copy of the Application (with any supporting documentation) together with a copy of this order authorising service, to the Respondent at: [email protected] and [email protected].
- [15]On 11 October 2022, the applicants filed another affidavit of service indicating that service was attempted by email at the email addresses specified in the direction.
- [16]The matter came on for hearing before me on 28 April 2023. The applicants appeared at the hearing, but there was no appearance by the respondent. I expressed concern that at no stage was service attempted at the respondent’s registered office in accordance with section109X of the Corporations Act 2001. I also expressed concern that the threshold for substituted service in rule 40 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) did not appear to have been met, in that there is no evidence that it was impracticable to serve the respondent at its registered office. Rather, it appeared to me that no consideration was given to service at the registered office.
- [17]I made the following directions:
1. Neil Andrew Hodges and Robyn Hodges must file in the Tribunal one (1) copy of the following documents:
(a) an updated ASIC search showing the current address of the registered office of Let’s Go Caravan Pty Ltd;
(b) an affidavit of service establishing that the Form 59: Application – Motor Vehicle Dispute and a copy of these directions has been given to the registered office of Let’s Go Caravans Pty Ltd, by 4:00pm on 12 May 2023
2. Let’s Go Caravans Pty Ltd must file in the Tribunal two (2) copies and give to Neil Andrew Hodges and Robyn Hodges one (1) copy of a completed Form 60: Response and/or counter-application – Motor Vehicle Dispute, by 4:00pm on 26 May 2023
3. If Let’s Go Caravans Pty Ltd does not comply with direction 2 above, the matter will be listed for a hearing on the papers before Member Cranwell.
4. If Let’s Go Caravans Pty Ltd does comply with direction 2 above, the matter will be listed for a directions hearing before the list manager.
- [18]On 11 May 2023, the applicants filed an ASIC search listing the respondent’s registered address as ‘4, 341 Hope Island Road, HOPE ISLAND QLD 4121’. An affidavit of service was also filed, establishing service by express post at this address. Accordingly, I am now satisfied that service has now been executed on the respondent in accordance with section 109X of the Corporations Act 2001.
- [19]No response was filed by the respondent. In accordance with direction 3 above, I have proceeded to determine the matter on the papers.
Australian Consumer Law provisions
- [20]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’.
- [21]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.
- [22]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
(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.
- [23]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.
- [24]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
- [25]The applicants filed an engineering report dated 4 May 2022 from Alan Marburg, Consulting Mechanical Engineer of All Vehicle Compliance Pty Ltd. Mr Marburg summarised the major deficiencies with the caravan as follows:
- Water Ingress. During the first outing with the caravan when it was subjected to rain, water penetrated into the inside of the module when the roof was erect. This was seen to occur at both the front window and from behind both wall-mounted light fittings.
- Storage bins leaking. Both the storage area built into the rear with access from the left side of the caravan, and the storage bin, with doors both sides, mounted at the front of the Drawbar leaked water during the rain periods.
- Incorrectly Aligned Roof and Module. Roof panel does not sit evenly on top of the module.
- Flickering Bed-Side Lights. Whenever the water pump is operating and the bed-side lights are ‘switched on’, the lights ‘flicker’. This situation occurs regardless of whether the weather is wet or dry.
- Missing Securing Screw for Awning. Of the two securing screws that are utilized when the awning is erected, the screw in the rearward arm has become dislodged and is missing.
- Roof Air Vent Opening While Travelling. Whilst the caravan is being towed along the roadway, the roof-mounted air vent comes open.
- [26]Mr Marburg concluded:
Even if the cause of the water leakage is rectified today, water remains inside the composite walls and possibly the floor. The consequence of this is that the structural integrity of the module will rapidly decline, and the vehicle will be unsafe to both inhabit and operate on public roads. Particularly with the timber being in the composite flooring, as moisture impregnates the plywood, it will decay and thus its structural integrity will quickly diminish.
As such, to tow a vehicle on public roads, knowing that it is structurally degrading, is irresponsible and could have legal implications.
In my professional opinion, the only course of action to rectify the water leakage situation is to completely dismantle the module and start again from the Chassis up by employing new composite walls and flooring and ensuring that all joins on the upper wall capping are correctly sealed. A review of the manufacturer’s method of sealing such joins should be seriously considered.
…
To re-build the caravan would be a time-consuming process.
- [27]In the absence of any evidence to the contrary, I accept Mr Marburg’s report in its entirety.
- [28]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.
- [29]Having regard to the list of defects identified by Mr Marburg set out above, which I have accepted, 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.
Remedies
- [30]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.
- [31]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 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. As Mr Marburg observed, repairing these issues would be a time consuming process and involve completely dismantling the caravan.
- [32]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.
- [33]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.
- [34]The applicants provided a copy of an email dated 12 November 2021, in which they sought a refund. This occurred within two months of the date of supply. In these circumstances, I am satisfied that the second named applicant rejected the caravan within the rejection period.
- [35]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 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. In particular, Mr Marburg has expressed the view that it would be unsafe to tow the caravan on public roads. 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 of $45,240 pursuant to s 263(4).
Damages
- [36]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.
- [37]The applicants have sought to recover loan repayments in the amount of $4,299.66 per annum. The only evidence provided in support of this is a bank statement of a loan account, with a handwritten annotation stating ‘50% split car & caravan’. I am unable to be satisfied, on the basis of this limited information, what loan repayments may have been made in respect of the caravan the subject of these proceedings.
- [38]The applicants have also sought to recover insurance payments in the amount of $1,643.40 per annum. The only evidence provided in support of this is a certificate of currency from Suncorp Insurance, and a screenshot indicating monthly instalments of $136.95. There is no evidence before me establishing payment of these amounts has occurred.
- [39]The applicants have also sought to recover forfeited holiday deposits in the amount of $80, for which receipts were provided. I consider this to be a reasonably foreseeable loss in circumstances where the applicants purchased a caravan and bookings were made for its use at caravan parks. I will allow damages in this amount.
Costs
- [40]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.
- [41]The applicant has sought to recover the costs of the expert report by Mr Marburg, as well as the costs of the process server and ASIC search. These costs are not recoverable. I am, however, satisfied that it is in the interests of justice to order the respondent to pay the filing fee of $358. In particular, I note that the respondent did not contest the claim.
Orders
- [42]The orders of the Tribunal are:
- The respondent is required to collect the caravan the subject of these proceedings from the second named applicant within 28 days of the date of these orders.
- The respondent is required to pay to the second named applicant the amount of $45,678 within 28 days of the date of these orders.