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  4. Green v Hitch Campers Pty Ltd - [2024] QCAT 263

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Green v Hitch Campers Pty Ltd[2024] QCAT 263

Green v Hitch Campers Pty Ltd[2024] QCAT 263

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Green v Hitch Campers Pty Ltd [2024] QCAT 263

PARTIES:

Shayne anthony Green

(applicant)

v

Hitch campers pty ltd

(respondent)

APPLICATION NO/S:

MVL033-23

MATTER TYPE:

Motor vehicle matter

DELIVERED ON:

20 June 2024

HEARING DATE:

8 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

  1. Hitch Campers Pty Ltd are to pay Shayne Anthony Green $2,950.00 within 21 days of the decision.
  2. Shayne Anthony Green is required to collect the camper trailer the subject of these proceedings from Hitch Campers Pty Ltd within 28 days of the decision.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – whether camper trailer was of acceptable quality – whether failure to comply with consumer guarantee a major failure – whether consumer entitled to refund

Australian Consumer Law (Queensland), s 3, s 54, s 56, s 259, s 260, s 262, s 263

Fair Trading Act 1984 (Qld), s 50A

Motor Dealers and Chattel Auctioneers Act 2014 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 100, s 102

Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd (2020) FCA 1672

Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10

Cary Boyd v Agrison Pty Ltd [2014] VMC 23

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

Medtel Pty Ltd v Courtney (2003) 130 FCR 182

Morphy v Beaufort Townsville Pty Ltd [2018] VCAT 1520

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

APPEARANCES & REPRESENTATION:

Applicant:

Mervyn Hugh Sher

Respondent:

Kathy Rundle – Ballantyne Law

REASONS FOR DECISION

Background

  1. [1]
    On 23 February 2023 the applicant, Mr Shayne Green, filed an application – motor vehicle dispute with the Tribunal, seeking the respondent, Hitch Campers Pty Ltd, replace their defective camper trailer with a new build trailer on a “new for old” basis and the respondent pay the applicant an amount to be determined by the Tribunal in respect of costs unfairly incurred for filing fees and professional fees.
  2. [2]
    On 25 October 2021 the applicant purchased a Canning camper trailer from the respondent for $54,249.30. The applicant asserts the camper trailer is inherently defective as there are major defects with the Raptor Coat chassis coating and the toolbox construction which leaks. The applicant asserts the respondent has had numerous opportunities to rectify the defects and has failed to do so. 

The Jurisdiction of the Tribunal in Motor Vehicle Disputes

  1. [3]
    The Tribunal is empowered to hear and determine disputes in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the “enabling Act”.[1]
  2. [4]
    The applicant seeks relief under the Australian Consumer Law, which is schedule 2 to the Competition and Consumer Act 2010 (Cth) (‘ACL’). The relief sought by the applicant is a refund and damages for additional incidental costs.
  3. [5]
    Section 50A of the Fair Trading Act 1989 (Qld) (‘Fair Trading Act’) provides that the Tribunal has jurisdiction in relation to motor vehicle matters where an application is brought under a relevant provision of the ACL against a supplier or manufacturer for failure to comply with statutory guarantees, and no more than $100,000 is sought. The Tribunal may make orders, including orders requiring a party to pay a stated amount to another person.
  4. [6]
    ‘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.
  5. [7]
    The applicant’s camper trailer falls within this definition.
  6. [8]
    Pursuant to s 3(1)(b) of the ACL, a person is taken to have acquired goods as a consumer if “the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption”. This includes the applicant’s motor vehicle.
  7. [9]
    The applicant is seeking well under the $100,000 maximum from the Tribunal and accordingly there is jurisdiction to hear the motor vehicle dispute.

Guarantee of acceptable quality

  1. [10]
    Section 54(1) of the ACL provides that, where a person supplies goods in trade or commerce, the goods are guaranteed to be of ‘acceptable quality’.
  2. [11]
    Goods are defined as being of “acceptable quality” if they are:
    1. fit for all the purposes for which goods of that kind are commonly supplied;
    2. acceptable in appearance and finish;
    3. free from defects;
    4. safe; and
    5. durable.
  3. [12]
    The test of acceptable quality requires a test in terms of what the 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 following matters:
    1. the nature of the goods;
    2. the price of the goods;
    3. any statements made about the goods on any packaging or label on the goods;
    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.[2]
  4. [13]
    The Macquarie Dictionary defines the word ‘defect’ to mean ‘a fault’ or ‘imperfection’.
  5. [14]
    The Macquarie Dictionary defines ‘durable’ as ‘having the quality of lasting or enduring or relating to goods which will be good for some time, as opposed to those intended to be used or consumed immediately’.
  6. [15]
    The time at which goods are to be of acceptable quality is the time at which the goods are supplied to the consumer.[3] 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.
  7. [16]
    In Morphy v Beaufort Townsville Pty Ltd,[4] 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. [17]
    The price of the vehicle is a relevant consideration, as a reasonable consumer would be entitled to expect that a high-cost item would be durable and be capable of safe and effective use over a number of years.[5]

Relief under the Fair Trading Act and Australian Consumer Law

  1. [18]
    The remedy available to the consumer against the supplier depends in the first instance on whether the failure is a ‘major failure.’[6] In order for the applicant to seek a refund for the vehicle, as sought in the application, there needs to be a failure to comply with the guarantee and the failure needs to be a major failure and/or unable to be remedied.
  2. [19]
    “Major failure” is defined[7] to include circumstances where the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure or are unfit for purpose or not of acceptable quality as they are unsafe.
  3. [20]
    In this case the applicant asserts there are at least two issues with the camper trailer. A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:
    1. the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and
    2. the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[8]
  4. [21]
    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,[9] 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. [22]
    The ACL provides remedies when the failure to comply with the guarantee can be remedied and it is not a major failure.[10] To seek to recover under the ACL, the consumer must request the supplier to remedy the failure within a reasonable time and if the supplier refuses or fails to comply with the requirement within a reasonable time the consumer may have the failure remedied and recover all reasonable costs incurred by the consumer in having the failure so remedied; or subject to section 262, notify the supplier that the consumer rejects the goods and of the ground/s for the rejection.[11]
  1. [23]
    Damages are also recoverable under s 259(4) of the ACL, which provides for the recovery of 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.

Chronology of events

  1. [24]
    The applicant, Mr Green, purchased a Canning camper trailer with an adventure pack and tech pack from the respondent Hitch Campers for $54,249.30. Mr Green states that he advised the respondent prior to purchasing the product of his off-road camping requirements and relied upon the advice and guidance of the respondent to satisfy his requirements and to link them to the products.
  2. [25]
    Mr Green took possession of the camper trailer on 1 November 2021 and parked it in his driveway of his home in New South Wales.[12]
  3. [26]
    Between 1-7 November there was a severe rain event which caused water inundation. The applicant inspected the camper and sent a list of issues and defects to the respondent. The main two concerns were the Raptor Coating being too brittle and chipping which could lead to the chassis being rusted and water ingress in the toolbox. However, there were also a number of minor concerns about the quality of the camper and defects.[13]
  4. [27]
    The applicant replaced the toolbox seals which he advised appears to have resolved the water ingress at present and took the camper on a camping trip for three nights from 7 November 2024. During the camping trip the applicant discovered that water ingress has occurred through a cable hole in the roof, pooling in the kitchen under the bench. The applicant advised the respondent of this issue and sent videos of the issues.[14]
  5. [28]
    On 23 November 2021 the applicant emailed the respondent to advise the left-hand side suspension airbag was leaking and the water ingress seemingly came from the left hand side.
  6. [29]
    There was ongoing discussion between the applicant and the respondent between November and December about the issues and the vehicle was returned to the respondent in Queensland (at the respondent’s expense) who undertook repairs. The vehicle was returned to the applicant on 18 December 2021.[15]
  7. [30]
    There was no communication between the applicant and the respondent for over 6 months between late December after the camper trailer was returned until 3 July 2022.[16] The applicant states that this was due to the respondent having rectified the minor defects, the applicant having been extremely busy with employment and other interests and the major defects having been reported but not rectified.[17]
  8. [31]
    On 3 July 2022 the applicant advised the respondent of issues with water ingress and leaking and the Raptor Coating and a new issue of cohesion under the right-hand side cabin door powder coating.[18]
  9. [32]
    The vehicle was again returned to the respondent’s site in Queensland in early July 2022 (at the respondent’s expense) for inspection and repairs. During this time the respondent replaced the toolbox lights and supplied and fit switches for awning lights.[19] The respondent undertook testing and was unable to locate any issues with the toolbox or any water leaks or ingress.
  10. [33]
    The applicant sent the respondent an email on 13 July 2022 detailing his understanding of the work completed which included:
    1. The respondent replaced a cracked RHS annex light assembly which appeared to be the cause of a leak on the kitchen.
    2. The toolbox leaks were addressed by cutting, reshaping and rewelding the doors for a better fit to the toolbox, and pending a water test, are believed to be resolved.
    3. A lubrication spray was used to address problems with difficulties in closing the door lock.[20]
  11. [34]
    Upon return of the camper trailer, on 21 July 2022 the applicant raised that there was still water ingress. The respondent confirmed that they had done substantial testing and there were no water leaks. In addition, it rained during the journey at 100km, and the vehicle remained dry. The respondent recommend that the applicant make arrangement for the camper to be returned to the respondent’s site for further investigations under the warranty.[21]
  12. [35]
    On 29 July 2022 the applicant made a “without prejudice” offer  for the camper to be returned  to the respondent at the applicant’s expense for further inspection by the respondent and for both parties to agree on the repair or for Hitch Camper to purchase the camper from the customer at a cost to be determined.[22] Although it is stated to be  a “without prejudice” offer both the applicant and the respondent have referred to and relied upon this document in their material. It appears the respondent did not respond to this offer.
  13. [36]
    In October 2022 the applicant went on a further camping trip, and after travelling through the rain, discovered the bedding, wall and floor were wet and muddy near the right-hand side door. The applicant stated that the doors do not always close and engage the seal properly and he usually checks this before driving but did not notice on this occasion. The applicant acknowledged that the water damage could be an oversight on his behalf, or the door may have come ajar while driving.[23]
  14. [37]
    On 9 October 2022 the applicant sought to use a hair dryer to dry the wet bedding in the camper. He forgot that he had left the hair drier on and went and made a coffee in the kitchen when he noticed smoke and found the bedding and carpet on fire. The fire caused damage to the mattress and bedding, carpet, door trim, wall (cracked inner surface) and floor (warped inner surface).[24]
  15. [38]
    On 2 December 2022 the respondent received advice that the camper trailer was going to be delivered to him on 5 December 2022. No discussion had occurred between the applicant and the respondent prior to this arrangement and the respondent advised the applicant they were unable to accept the camper trailer until 9 January 2023. After some discussion the camper trailer was delivered to the respondent by the applicant on 9 January 2023.
  16. [39]
    On 5 December and 12 January 2023, the respondent requested details from the applicant as to what they considered to be defects. No written response was provided but the applicant offered to arrange a Teams video link to discuss the issues which the respondent did not attend, advising they were unavailable. The respondent offered the applicant the opportunity to attend at the site with the camper to discuss the issues in person, which the applicant did not do. No written details of the defects were ever provided and the application for a motor vehicle dispute was filed in the Tribunal on 20 February 2023.[25]
  17. [40]
    The camper trailer has remained at the respondent’s locations since January 2023.
  18. [41]
    The respondent assessed the camper trailer at the time of its return in January 2023 and asserts that damage was caused to the camper trailer as a result of the applicant’s actions and neglect and that to repair the damage and bring the camper trailer to a saleable condition would cost $27,074.34. The main concerns identified by the respondent with the camper trailer were:
    1. The awning was cut, and possibly repaired by the Applicant, there was mould on the awning suggesting it was not dried out before being packed away and the bag has several rips, suggesting impact with trees and branches;
    2. There was a broken tap;
    3. The stabiliser legs had been removed;
    4. Damage to cupboards and doors;
    5. Dents or damaged wheel arch; and
    6. Internal damage to the furnishing and interior as a result of a fire to the point where it had integral damage to the wall drivers side wall and floor.[26]

Material files in proceedings

  1. [42]
    The applicant filed the following material in the proceedings which has been considered by the Tribunal in its decision:
    1. Application – Motor vehicle dispute - filed 23 February 2023. 
    2. Applicant’s Response filed 20 May 2023.
    3. Statement of Shayne Anthony Green.
    4. Condition Report prepared by Philip John Scott.
    5. Statutory Declaration of Philip John Scott.
    6. Expert Witness Statement of Philip John Scott.
    7. Videos 1-9 of water ingress from 11 to 30 November 2021.
  2. [43]
    The respondent filed the following material in the proceedings which has been considered by the Tribunal in its decision:
    1. Respondent’s response and counter application filed 17 April 2023.
    2. Respondent’s Response filed 19 June 2023.
    3. Statement of Andrew John Peers.
    4. Statement of Luke John Peers.
    5. Statement of Tracey Karen Peers.
    6. Statement of Douglas Coleman.
    7. Statement of Cameron Alan Osborne.
  3. [44]
    There were also applications for leave to be represented for which submissions were filed by the applicant and respondent on 8 March 2023, and applications for interim orders in relation to issues with the vehicle inspection for the expert report, for which material was filed in October 2023.

Expert Reports of Phillip Scott

  1. [45]
    Mr Phillip Scott was engaged by the application to provide an expert report in the matter. 
  2. [46]
    Mr Scott is a consultative automotive engineer and has practised as such on a full-time basis since 1998. He has a Bachelor degree in Education (teaching) and a certificate in automotive engineering. He was a full member of the Society of Automotive Engineers International and Australasian from 1989-2012 and has been a full member of the Institute of Automotive Mechanical Engineers since 1998. He has worked in the automotive industry for 56 years and has been an authorised examiner for the inspection of vehicles in NSW since 1970. He has investigated and reported on more than 900 mechanical failures and accidents.[27]
  3. [47]
    Mr Scott inspected the vehicle at the respondent’s site on 20 September 2023 and 21 November 2023.
  4. [48]
    The key findings of the expert are:
    1. No water ingress was found on any of the testing of either the toolbox or the cabin and rear door.[28]
    2. The water ingress for Mr Scott’s testing applied much less volume than it would supply when the vehicle was being towed on a public road at speeds of 60-100km per hour. The rain in combination with the wheel spray of the vehicle would far exceed the volume of a garden hose and water spray would impact the entire underside of the trailer from every angle, which cannot be reconstructed in a public car park.[29]
    3. The condition of the Raptor Coating product on the vehicle is very poor when the age of the vehicle is taken into consideration and the distance the owner has used the vehicle is minimal. Considering the minimal use of the vehicle this highlights very poor quality of the product’s application on the vehicle.[30] 
    4. The condition of the Raptor Coating to the tow bar area, the lower extremities, and the underneath of the camper trailer is very poor. It provided virtually none of the protection for which it is designed. The rectification will require the removal of the existing coating where the Raptor Coating has been applied, the surface to be corrected and prepared and then the Raptor Coating to be reapplied.[31]
    5. The application of the Raptor Coating is not fit for purpose and its constant failure would constitute a major defect.[32]
    6. The waterproof seal fitted to the vehicle apertures demonstrates very poor quality of application, as evidenced by the continued leaks despite various attempts by the manufacturer to rectify the problem. This would lead to the conclusion that the water ingress is a major defect.[33]
    7. The manufacturer presented this vehicle as an off-road camper suitable for crossing deserts and travelling to Cape York in Far North Queensland. Several defect items were identified which all accumulate into a major defect, which contributes to the camper not being fit for the purpose of off-road camping especially in the outback areas of Australia.[34]

Applicant’s position

  1. [49]
    The applicant asserts he has returned the camper trailer to the respondent twice to rectify the defects and in both incidents the camper trailer was returned with minor and major defects remaining.[35]
  2. [50]
    The applicant has no confidence that the respondent has either the appetite or the capability to repair the major defects and seeks the respondent replace the defective camper trailer with a new build trailer on a “new for old” basis and the respondent pay the applicant the amount to be determined by the Tribunal in respect of costs unfairly incurred by the applicant for filing fees and professional fees.[36]

Respondent’s position

  1. [51]
    The respondent denies making any representations about the goods and specifically disclaimed making any representations.
  2. [52]
    In relation to the Raptor Coating the respondent states that camper trailers require regular maintenance and care, including where appropriate the touching up of the Raptor Coating.[37] The respondent asserts that the Raptor Coating is not defective; the applicant has failed to follow the maintenance and care manual in respect of the coating and the damage is not a result of usual use of the camper trailer, but due to abnormal use; the applicant’s failure to carry out proper maintenance and the camper having impact damage from foreign bodies such as the ground and tree roots.[38]
  3. [53]
    In the alternative the respondent states that if it found that the Raptor Coating is a defect, it is not a major defect and can be repaired at a cost of $2,950.00.[39] The respondent states it has made a number of previous offers to repair the Raptor Coating.
  4. [54]
    In relation to the toolbox, the respondent asserts that the there is no defect and testing conducted by both the respondent’s and the applicant’s expert Mr Scott demonstrates that the toolbox does not leak and there is no evidence of water ingress.[40]
  5. [55]
    Further when the vehicle was returned in January 2023 the rear door lock suggested that works have been carried out by the applicant which would impact sealing, which may cause leaking.[41]
  6. [56]
    The respondent further asserts that the camper trailer had a significant number of issues and items which had been damaged as a result of the applicant’s misuse, including the awning, a broken tap, the removal of stabilising legs, damage to cupboards, a dented or damaged wheel arch and fire damage which the applicant acknowledged was caused by his actions.[42]
  7. [57]
    The respondent asserts the applicant is not entitled to reject the camper trailer in circumstances where it has been damaged by the applicant after delivery due to the provisions of s 262 of the ACL and the provisions in the standard terms of sale agreement.
  8. [58]
    The applicant filed a counter application in the amount of $10,000. The exact basis of the counterclaim and how the $10,000 amount was calculated is unclear.
  9. [59]
    The respondent initially sought the applicant make arrangements for collection of the camper trailer within seven (7) days of the date of the direction hearing, or accept the respondent’s offer, to pay the applicant the sum of $13,311.80 for the camper trailer based on its current saleable condition and for the applicant to pay storage costs in the amount of $450 per week from 9 January 2023, the respondent’s legal fees and any additional costs.
  10. [60]
    The respondent’s submission at hearing was that the application should be dismissed.

Was there a breach of a guarantee of acceptable quality?

  1. [61]
    Whether goods are of acceptable quality is not an absolute or a standard of perfection, but rather is a flexible standard depending upon the application of provisions in section 54(2) and (3).
  2. [62]
    In Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd[43] (‘Jayco’) it was observed in relation to a caravan that:

RVs, like many substantial consumer items such as motor vehicles, yachts, and even bicycles, are manufactured from a range of component parts, many of which may be capable of easy replacement or repair in the event of some fault. Some of the accessories, such as air conditioning units, televisions, or microwave ovens, may be manufactured by specialist suppliers of electrical appliances, and installed in the RV by the manufacturer or the supplier of the RV. Many of the component parts are designed for mechanical movement. RVs are intended to be towed. The process of towing will subject the RVs to stresses and flex. RVs will necessarily be exposed to weather. They are designed to be lived in, and otherwise to be used. Lids will be raised and lowered. Doors will be opened and shut. Drawers will be pulled out, and pushed in. RVs will be used by families with children, who sometimes lack fine motor skills when handling equipment. Surfaces may become scratched or chipped though normal use. An appliance installed in an RV, if found to be faulty, might be able to be easily repaired or replaced by a specialist supplier. Fuses may blow. Sometimes, just as in a household, the cause of an isolated occurrence of a blown fuse may not be apparent. Screws might have to be tightened. Doors might have to be straightened. These things are inherent in the nature of the goods. The reasonable consumer will tolerate some faults or breakages, and some need for adjustments of this type that are exposed by a period of initial use. The reasonable consumer will purchase an RV accepting that there is a reasonable prospect that some components of the RV may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period. Putatively, if a reasonable consumer was fully acquainted with the nature and extent of a failure to comply with a statutory guarantee at the time of purchase, the reasonable consumer might nonetheless proceed with the purchase on the basis that the supplier, or the manufacturer, will remedy the failure within a reasonable time. On the other hand, it does not follow that merely because a failure to comply with a statutory guarantee is capable of being remedied, that a reasonable consumer fully acquainted with the nature and extent of the failure would acquire the goods. Whether that is so will depend upon the circumstances of each case.[44]

  1. [63]
    While it is accepted, in line with Jayco, that it is reasonable to accept that some parts of a caravan or camper trailer may have to be adjusted, repaired, or replaced within a manufacturer’s warranty period, a consumer should not expect that a brand-new caravan or camper trailer will need immediate repairs.
  2. [64]
    In Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd[45] NCAT said:

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).

  1. [65]
    In this case, it appears undisputed that there were defects in the camper trailer when initially supplied to the applicant on 1 November which was a breach of acceptable quality. This appears to be acknowledged in the email sent by the respondent on 1 December 2021 in which it states: “we note that you have had an extraordinary amount of issues with your camper, some small and some not” and “we have advised you the team leader on the build was subsequently let go because as a business the last thing we want to do is put out a product that our customers are not happy with”.[46]
  2. [66]
    The respondent acknowledged the camper trailer was not of an acceptable quality upon first delivery and the camper trailer was returned to the respondent in December 2021 (at their cost) for repair under warranty.
  3. [67]
    In the circumstances the Tribunal finds there was a breach of the guarantee of acceptable quality in relation to this camper trailer.
  4. [68]
    For completeness, the Tribunal does not find that there was any breach of representation in relation to the goods, as the applicant has not presented any evidence to support this finding.

Was the failure to comply with the guarantee of acceptable quality a major failure?

  1. [69]
    The term ‘major failure’ is defined to mean:[47]
    1. the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
    2. the goods depart in one or more significant respects:
  1. if they were supplied by description—from that description; or
  2. if they were supplied by reference to a sample or demonstration model— from that sample or demonstration model; or
  1. 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
  2. the goods are unfit for a disclosed purpose that was made known to:
  1. the supplier of the goods; or
  2. 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. the goods are not of acceptable quality because they are unsafe.
  1. [70]
    A failure to comply with a guarantee that applies to a supply of goods is also a major failure if the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) and the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.[48]
  2. [71]
    The test in s 260(a) of the ACL is whether a reasonable consumer with knowledge of the faults and what would be needed in terms of time, costs and degree of difficulty to fix them would have bought the goods or made a different decision.[49]
  3. [72]
    It has previously been accepted that a number of minor defects can be considered in aggregate to amount to a major failure[50] However, not every fault or combination of faults which represents a breach of the guarantee of acceptable quality constitutes a major failure. A finding of a major failure is a judgement of fact and degree based on inferences from the evidence. Relevant considerations include the availability and cost of repairs relative to purchase price and the nature of the faults.[51]
  4. [73]
    In relation to minor defects, while there were a number of minor defects when the applicant first took possession of the camper trailer, the respondent conducted a number of repairs in December 2021 which appeared to resolve these defects. No concerns were raised by the applicant for over six months and the applicant did not raise any subsequent issues about any of these minor defects and in fact confirmed in the material before the Tribunal that the minor defects had been resolved.[52]
  5. [74]
    Mr Scott, the vehicle assessor, asserted that there were minor defects that when combined could result in a major defect, but did not state what these defects were, and the focus of the report was in relation to the Raptor Coating and toolbox issue/water leaking.
  6. [75]
    In the circumstances the Tribunal finds there is insufficient evidence that there were any ongoing minor defects and the only two defects for which there is any evidence still in existence are the Raptor Coating and the water ingress/leaking.
  7. [76]
    In relation to the Raptor Coating, no repairs have ever been undertaken and the respondent’s position is that it is not a defect but due to the applicant’s failure to follow the maintenance and care manual and the vehicle being impacted by foreign items such as the road and trees.
  8. [77]
    Considering the evidence of both the applicant and respondent, and the expert report of Phillip Scott, and noting these issues with Raptor Coating were raised by the applicant immediately in November 2021, on the balance of probabilities the Tribunal finds that the Raptor Coating was a defect and while there may be some other impact damage, the coating was not of a quality which would be expected for an off-road vehicle of this nature and price.
  9. [78]
    The report of Mr Scott asserts that this is a major failure, but the basis for this is not clearly articulated. The Raptor Coating can be repaired and remedied. The respondent has advised that they can repair the Raptor Coating for $2,950. This amount was not disputed by the applicant.
  10. [79]
    Given the coating is able to be repaired for a relatively small cost in comparison to the total cost of the camper, the Tribunal finds that this is not a major defect and would not have stopped a reasonable consumer fully acquainted with the nature of the vehicle and defect from purchasing the vehicle.
  11. [80]
    The respondent has offered to repair the Raptor Coating for the applicant and therefore he is not entitled to a new vehicle or a refund for the vehicle based on the concerns with the Raptor Coating.
  12. [81]
    It is noted the applicant raised concerns that the issue may arise again, but this is unknown as the applicant has not provided the respondent the opportunity to repair the coating. The respondent has asserted that there have been no other known issues with the Raptor Coating on other vehicles they have manufactured,[53] which would support the finding that this was a defect with the applicant’s coating and not the expected quality.
  13. [82]
    In relation to concerns with water ingress caused by a defective toolbox, the Tribunal accepts that there was clear evidence of issues in November 2021, but the respondent made a number of repairs and asserts the issues were repaired and there is no longer a defect.
  14. [83]
    The Tribunal has concerns with the findings in Mr Scott’s report that the water ingress overall is a major defect. Mr Scott took as fact the applicant’s assertion that the camper trailer continued to have water ingress and used this to make the finding of a major defect, despite Mr Scott conducting testing which did not demonstrate any water leaking. While Mr Scott explained the limitations of his tests and why they may not have shown the possible defects with the camper trailer, it is also possible the tests showed no defects because there were none.
  15. [84]
    Mr Scott’s report appears to be overly slanted towards the applicant and did not consider any of the respondent’s concerns in terms of the applicant’s use of the camper trailer for a residence, the applicant’s failure to maintain the camper trailer in line with the maintenance recommendations or the damage caused to the camper trailer by the applicant by the fire.
  16. [85]
    The Tribunal does not find that there is sufficient evidence on the balance of probabilities to support the applicant’s assertion that there is an ongoing fault with the toolbox, or that water is entering the camper trailer. This is based on:
    1. The respondent undertook repairs in December 2021 and no further concerns were raised by the applicant for over 6 months.
    2. Testing by the respondent and the expert Mr Scott was unable to demonstrate any ongoing leaks.
    3. While the applicant provided videos of the water leaks initially in November 2021 no evidence of the subsequent leaks was provided other than the applicant sending an email saying it is leaking.
    4. While Mr Scott has asserted that leaks may be more prevalent when driving on the motorway, the applicant’s concerns were raised about leaks while stationary and there were no leaks evident when the respondent drove the camper trailer through rain.
    5. The only occasion water issues have arisen when driving was in October 2022 and the applicant acknowledged that he may have caused these issues.
    6. The applicant has caused damage to the camper trailer due to his own negligence and inattention in leaving an unattended hair drier going, causing a fire in the camper.
  17. [86]
    In the circumstances, the Tribunal cannot be satisfied on the balance of probabilities that there is any ongoing water ingress or issue with the toolbox and, if there is any issue, that it was a fault at the time of possession and did not arise after possession due to the applicant’s actions.

Remedies

  1. [87]
    As the finding of the Tribunal is that the only ongoing defect is in relation to the Raptor Coating and it is not a major failure, the applicant is not entitled to a refund or replacement vehicle as the respondent is willing and able to repair the Raptor Coating. The applicant is, however, entitled to have the Raptor Coating repaired.
  2. [88]
    Under s 50A of the Fair Trading Act the Tribunal may make only the following orders—
    1. an order requiring a party to the proceeding to pay a stated amount to a stated person;
    2. an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant;
    3. an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates;
    4. an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person;
    5. an order combining 2 or more orders mentioned in paragraphs (a), (b), (c) and (d).
  3. [89]
    In this case it appears the relationship and trust between the applicant and respondent has broken down during the proceedings. In the circumstances the Tribunal will not order the applicant to have the Raptor Coating repaired by the respondent but instead make an order requiring the respondent to pay the cost of the repair being $2,950.00.
  4. [90]
    In the circumstance, the respondent will now need to collect the camper trailer from the applicant. Noting the respondent resides in New South Wales the Tribunal will allow them 28 days to make these arrangements.
  5. [91]
    The respondent sought the applicant pay storage costs for the camper trailer since January 2023 but have provided no evidence of any costs incurred. Accordingly, the respondent’s counter application is dismissed.

Costs

  1. [92]
    The starting point for costs is that each party must bear their own costs.[54] Section 50C of the Fair Trading Act 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 QCAT Act which provides that the Tribunal may make a costs order if the interests of justice require it.
  2. [93]
    Both parties have sought to be represented and have incurred costs. While there were some faults in the vehicle, the applicant has been only partially successful in the proceeding and the faults were not determined to be major faults.
  3. [94]
    In the circumstance the Tribunal does not find that the interests of justice warrant swaying of the ordinary position. The Tribunal declines to make any order as to costs and each party shall bear their own cost. 

Orders

  1. [95]
    The Tribunal Orders:
    1. Hitch Campers Pty Ltd are to pay Shayne Green $2,950.00 within 21 days of the decision.
    2. Shayne Green is required to collect the camper trailer the subject of these proceedings from Hitch Campers Pty Ltd within 28 days of the decision.

Footnotes

[1]  QCAT Act, ss 9, 10.

[2]  ACL, s 54(3).

[3] Medtel Pty Ltd v Courtney (2003) 130 FCR 182 at [64] and [70].

[4]  [2018] VCAT 1520 at [72].

[5] Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90 at [57].

[6]  ACL, s 260.

[7]  Ibid, s 260.

[8]  Ibid, s 260(2).

[9]  [2014] VMC 23 at [51].

[10]  ACL, s 259(2).

[11]  Ibid, s 259(2)(b)(i) and (ii).

[12]  Statement of Shayne Green [5].

[13]  Ibid, [6]-[7] and annexure D.

[14]  Ibid, [9]-[11] and annexure F.

[15]  Statement of Luke John Peters [21].

[16]  Ibid, [23].

[17]  Applicant’s Response dated 24 May 2023 [12].

[18]  Statement of Shayne Green [20] and Application at annexure R & S.

[19]  Statement of Luke John Peer [30] and annexure E.

[20]  Application at annexure W.

[21]  Ibid, annexures X-AA.

[22]  Ibid, annexure AD.

[23]  Ibid, annexure AG.

[24]  Ibid.

[25]  Statement of Tracey Karen Peters [13]-[19].

[26]  Statement of Luke Peters [29][35] and annexure D; Respondent’s submissions filed 8 March 2024 at [17].

[27]  Statement of Phillip Scott dated 30.12.2023 [2]-[7.4].

[28]  Ibid [17]-[23.2].

[29]  Ibid [27]-[27.1].

[30]  Ibid [24]-[24.2].

[31]  Report of Phillip Scott dated 21 November 2023 [1.12]; Statement of Phillip Scott dated 30.12.2023 [25.1.2].

[32]  Statement of Phillip Scott dated 30.12.2023 [28.1.1].

[33]  Ibid [28.2].

[34]  Ibid [28.3]-[28.3.1].

[35]  Applicant submission received 8 March 2024 [20].

[36]  Ibid, [21]-[22].

[37]  Statement of Andrew John Peers [14] and annexure C.

[38]  Statement of Luke John Peers [37] & [76]. Respondent’s submission received on 8 March 2024 [14]-[20].

[39]  Ibid, [22] and attachment F.

[40]  Statement of Luke John Peers [54], attachment H; Statutory declaration to Phillip John Scott dated 27 September 2023 [13]; expert Witness statement of Phillip John Scott [17] & [18.1].

[41]  Statement of Luke John Peers, [85(b)].

[42]  Ibid [27], [29], [35], annexure D, H3 and U.

[43]  [2020] FCA 1672.

[44]  Ibid, [40].

[45]  [2016] NSWCATCD 90, [57].

[46]  Application, annexure Q.

[47]  ACL, s 260.

[48]  Ibid, s 260(2).

[49] Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 [28].

[50] Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369 [33].

[51] Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 [28]; Peter Bennett Cars v Lyree-Jho Vodanovich [2020] QCATA 88, [24].

[52]  Applicant’s “response” dated 24 May 2023 [12].

[53]  Statement of Luke John Peers [68].

[54]  QCAT Act, s 100.

Close

Editorial Notes

  • Published Case Name:

    Green v Hitch Campers Pty Ltd

  • Shortened Case Name:

    Green v Hitch Campers Pty Ltd

  • MNC:

    [2024] QCAT 263

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    20 Jun 2024

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
Australian Competition and Consumer Commission v Jayco Corporation Pty Ltd [2020] FCA 1672
2 citations
Jump To
Cite 1 - [2020] FCA 1672
Cite 2 - [2020] FCA 1672
Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10
3 citations
Jump To
Cite 1 - [2021] NSWCATAP 10
Cite 2 - [2021] NSWCATAP 10
Cite 3 - [2021] NSWCATAP 10
Campbell v Caravan & RV Central Pty Ltd t/as Avan New South Wales & FCA Australia Pty Ltd [2016] NSWCATCD 90
3 citations
Jump To
Cite 1 - [2016] NSWCATCD 90
Cite 2 - [2016] NSWCATCD 90
Cite 3 - [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
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
Nuth v Soel Products Australia Pty Ltd trading as Caravan RV CQ [2020] QCAT 369
2 citations
Jump To
Cite 1 - [2020] QCAT 369
Cite 2 - [2020] QCAT 369
Peter Bennett Cars v Lyree-Jo Vodanovich [2020] QCATA 88
1 citation
Jump To
Cite 1 - [2020] QCATA 88

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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