Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smith v Middleton [2019] NSWCATCD 54 Hearing dates: 9 November 2018, 27 February 2019 Date of orders: 20 June 2019 Decision date: 20 June 2019 Jurisdiction: Consumer and Commercial Division Before: S Hanstein, General Member Decision: The application is dismissed. Legislation Cited: Australian Consumer Law (NSW) Cases Cited: Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80; Chen v Homeland Furniture Canterbury Pty Ltd [2015] NSWCATCD 102 Category: Principal judgment Parties: Graham and Sandra Smith (applicants) Lester John Royce Middleton (first respondent) Opalite Industries Pty Ltd T/A Opalite Caravans (second respondent) Representation: Mr Smith for the applicants Mr Middleton in person Mr McKensey for the second File Number(s): MV 18/30033 Publication restriction: Nil reasons for decision 1. The applicants are husband and wife. I have referred to them below jointly as "the applicant" or, where necessary to distinguish between them, as "Mr Smith" or "Mrs Smith" as relevant. 2. The applicant seeks a refund for, and compensation for consequential loss in respect of, a new Opalite Skoot 5800 caravan purchased from the second respondent ("Opalite"). The first respondent ("Mr Middleton") is a director of the second respondent, and acted on behalf of the Opalite in Opalite's dealings with the applicant. 3. The applicant was represented at the hearing by Mr Smith, and it is he who had the relevant dealings with Opalite. Mr Smith gave oral evidence, and relied on evidence of Colin Young. The applicant also relied upon documentary evidence. Mr Middleton appeared at the hearing and Opalite was represented by Mr McKensey. The respondents relied upon documentary evidence and oral evidence from Mr Middleton and Ron May. Procedural matters 1. The proceedings were first listed on 23 July 2018, at which time the dispute was not resolved through conciliation. The formal hearing took place over two days, on 9 November 2018 and 27 February 2019. 2. Directions were made at the conclusion of the hearing on 9 November 2018, including: 2. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 30-Nov-2018. 3. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 21-Dec-2018. IMPORTANT NOTE: For the purpose of these directions "document" means: - An expert report in relation to the requirements (under the Australian Design Rules or otherwise) for measuring tow ball weight, and how the tow ball weight is affected by how the caravan is fitted out or packed The parties are referred to the Tribunal's website for information about expert evidence. - a submission as to whether compensation should be allowed under item 2 and 3 in the applicant's claims 1. At the hearing on 27 February 2019, the applicant sought to extend the claim by including a claim to the effect that the van was not of acceptable quality because of the axle rating and bearings. The applicant was not permitted to enlarge his claim in that way because of the late stage at which the claim was made, the respondents had not had an opportunity to provide evidence to meet the claim, and the respondents submitted that, in any event, the issue could be rectified. To allow the claim to be included would have further delayed the resolution of the proceedings , which had already been on foot for a considerable time, and may have ultimately not be necessary if the applicant was successful in the claims that were already before the Tribunal. It was considered that it was not in the interests of justice or in accordance with the Tribunal's guiding principle to allow the claim to be extended in the way sought by the applicant. 2. At the conclusion of the hearing on 27 February 2019, the Tribunal made directions for the filing of written submissions by the parties. 3. As part of the material provided following that hearing, the applicant provided a statutory declaration of Sandra Smith Even though she was not named as an applicant prior to 27 February 2019, although she should have been, there is no adequate explanation as to why this statutory declaration was not provided at an earlier time as it purports to be relevant to issues that were always in issue in the proceedings, regardless of whether or not she was named as an applicant. It would also be unfair to the respondents to allow this evidence to be considered, as they have not had any opportunity to test it through cross examination. I have not had regard to the statutory declaration from Mrs Smith. Applicable Law 1. Section 18 of the Australian Consumer Law (NSW) ("ACL (NSW)") relevantly provides: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 1. Section 54 of the ACL (NSW) provides, relevantly, as follows: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) there is a guarantee that the goods are of acceptable quality. (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; 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. 1. Section 55 of the ACL (NSW) relevantly provides: 55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier... 1. Section 259 provides, relevantly, as follows: 259 Action against suppliers of goods (1) A consumer may take action under this section if: (a) a person (the supplier) supplies, in trade or commerce, goods to the consumer; and (b) a guarantee that applies to the supply under Subdivision A of Division 1 of Part 3 2 (other than sections 58 and 59(1)) is not complied with. … (3) If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may: (a) subject to section 262, notify the supplier that the consumer rejects the goods and of the ground or grounds for the rejection; or … (4) 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. … (6) To avoid doubt, subsection (4) applies in addition to subsections (2) and (3). … 1. Section 260 of the ACL (NSW) provides, relevantly, as follows: 260 When a failure to comply with a guarantee is a major failure A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if: (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: … (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 … 1. In Chen v Homeland Furniture Canterbury Pty Ltd [2015] NSWCATCD 102 ("Chen"), the Tribunal stated, at [21]: The legal principles pertaining to Section 18 of the ACL are summarised by Brereton J in Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697 at paras [75]-[76]. Relevantly, the test is objective (i.e. what a reasonable consumer in the position of the applicant would have, in all the circumstances of the matter, been misled or deceived, not whether the applicant subjectively believed that the conduct of the respondent was misleading or deceptive). There does not have to be any intention on the part of the respondent to mislead or deceive. Confusion or misunderstanding by a consumer does not mean, of itself, that the conduct in question is misleading or deceptive, and a consumer failing to make reasonable inquiries is relevant in assessing whether conduct is misleading or deceptive in contravention of Section 18 of the ACL (Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1; Miller & Associates Insurance Broking v BMW Australia Finance (2010) 241 CLR 357)." 1. In considering whether non-compliance with the guarantee of acceptable quality amounts to a major failure, relevant matters include those identified by the Appeal Panel in Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 ("Safi") at [101]-[102] as follows: 1. The test of whether the goods "would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure" is an objective one; 2. A "reasonable consumer" would expect teething problems, even in a new vehicle; 3. The question to ask is whether the reasonable consumer, given the option of acquiring that particular good or alternatively purchasing either nothing or a different model, would not have acquired the good; 4. Defects which result in goods failing to comply with the guarantee of acceptable quality will not invariably be a major failure and it will depend on the nature and extent of the failure; and 5. The cost of repair, in proportion to the purchase price, and the question of whether the defects can be remedied easily in a timely manner are relevant considerations. 6. The purchase price for the goods and the nature of the defect are also relevant considerations for a "reasonable consumer". Applicant's case 1. The applicant claims that: 1. prior to him purchasing the van, the respondent falsely represented to him that the van would have a tare weight of 2,100 kg and a tow ball weight of 130 to 150 kg, and it would be able to be legally towed by the applicant's Isuzu MU-X vehicle when fully loaded 2. advertising by Opalite states this caravan can be towed by a normal family car, but it clearly cannot be due to the excessive tow ball weight and the tare weight being much more than claimed 3. the tare weight (2,280 kg) and tow ball weight (200 kg) stated on the compliance plate of the van were false or misleading 4. the van was not fit for purpose because the van, fully loaded, could not legally be towed by the fully loaded towing vehicle; and the payload of the van was inadequate, particularly for the travel the applicant was planning to do 5. the van was not of acceptable quality due to the unprofessional and impractical design of the location of the various storage compartments; and because it has required returns to the supplier in order to rectify a number of unacceptable issues. 1. The applicant's documents also include a number of other complaints about the van, but sufficient evidence has not been produced to establish they are ongoing issues or that they should be the basis of any order for compensation, and in many instances they seem to have been raised to provide context rather than as specific claims for compensation in themselves. The applicant has claimed that the wiring of the van was not acceptable and needed rectification by a third party. This was a very minor claim in the context of the proceedings, and there was insufficient evidence to establish it. The applicant's submissions in reply to the final submissions by the respondent seek to introduce evidence to support claims for compensation for a number of items. It is not procedurally fair for this evidence to be considered, as the respondent has no opportunity to respond and this evidence should have been provided long before. Further, the assertions made as to why the amounts claimed should be allowed are not sufficiently supported by evidence of the issues. In the circumstances, I have not considered these complaints further. 2. The applicant's evidence included the following. 3. He had visited the respondent's factory when he was considering which caravan to buy, and saw a van being built. He then returned to the factory, looked at the vans in more detail and had a discussion over the course of about an hour with Mr Middleton. 4. During the discussion, the applicant outlined the options or modifications he wanted on the caravan, including two spare wheels, two AGM batteries, 240 litre water tanks and a 59 litre grey water tank, a stove with oven, two solar panels instead of one, full size household queen bed, hot water cylinder moved forward, outdoor kitchen, compressor fridge/freezer, and no air conditioner. 5. At the end of the discussion, the applicant asked what the tare weight and tow ball weight would be, and Mr Middleton responded with 2,100 kg, and between 130 and 150 kg respectively. The applicant did not query the stated weights because they were broadly consistent with weights of other vans he had been looking at. 6. The applicant told Mr Middleton that his previous van had an excessive tow ball weight. The applicant made it clear at that time that he did not understand the towing and weights involved. Mr Middleton tried to explain these, but the applicant was no better off. When asked by the Tribunal what he did to get further clarification if he did not understand, the applicant responded that he said to Mr Middleton that the caravan must be able to be legally towed by his vehicle, an Isuzu MU-X. Mr Middleton was familiar with this vehicle as he was considering getting one himself, and at the end of the discussion Mr Middleton had a quick look at the applicant's vehicle, and everything on the vehicle was on display to Mr Middleton at that time. The towing vehicle had a bull bar, a 120 litre long range fuel tank, dual batteries, rear area steel drawer storage system, and 60 litre 12 V fridge. The applicant informed Mr Middleton that the towing vehicle had a maximum tow ball weight of 300 kg, a maximum GCM (gross combined weight of car and van) of 5,750kg and maximum GVM (gross vehicle mass) of 2,750 kg, and the car would be close to maximum GVM when the car and caravan were fully loaded, with both applicants in the vehicle, for long term trips to many parts of remote Australia. The applicant relied on Mr Middleton's expertise as to whether the van could be towed fully loaded with his (the applicant's) vehicle and Mr Middleton confirmed it could. At this time, the applicant was not aware the tow ball weight would be transferred to the towing vehicle – he thought the tow ball weight would count as part of the weight of the van and not as part of the payload of the towing vehicle. 7. The applicant was told the price would be $52,000. 8. The applicant discussed the matter with his wife, took her to the factory, thought about it, and then about a week later went back and agreed to go ahead with the purchase. The applicant wanted to be able to pop up to the factory to see the van during construction. There was no written quote or contract for the purchase, or written list of specifications or inclusions. 9. The applicant received an email from Mr Middleton stating the purchase price would be $53,000. The applicant queried that, as previously stated $52,000 but he decided to pay 10. The applicant purchased a number of items from third parties to be installed in the van during the construction process. 11. The applicant attended the factory the day before the van was supplied to him, and was present when Mr Middleton took the van for weighing. The weighing to establish the tare weight of the van is supposed to be done with all items fitted by the manufacturer present. When the weighing was done by respondent, not all of the items provided with the van were included, namely the awning privacy screen brace, the outdoor kitchen cover, the wheel brace, the awning operating lever. . 12. The weighing was done at a local council rubbish tip weighbridge. The weighbridge certificate showed a tare weight of 2,280kg. No certificate has been provided evidencing the tow ball weight measurement. According to the applicant, Mr Middleton has stated that the tow ball weight was calculated rather than measured, as also stated that the van was still attached to the towing vehicle when weighed. 13. On about 28 June 2017, the van was supplied to the applicant. The caravan's vehicle identification plate showed Ball Loading at Tare of 200 kg, Maximum Ball Loading of 300 kg, Tare Mass of 2,280 kg, GTM Rating of 2,600 kg, ATM Rating of 2,800 kg, Load Carrying Capacity of 520 kg (ATM Rating minus Tare Mass). 14. The applicant immediately questioned the tow ball weight and the tare weight as they were higher than what Mr Middleton had told him they would be. The applicant stated that he said to Mr Middleton that Mr Middleton had said tare would be 2,100 kg and to ball weight would be 130 to 150 kg, and Mr Middleton sort of laughed that off and said "these are the weights". The applicant said "I'll see how I go, see if I can work around those weights" and took the van. (For what appears to be the first time, the applicant stated in his submissions following the hearing on 27 February 2019 that what he said was he would try to work around those much higher weights but, if he could not, the respondents would be required to provide a caravan which met the "original weights" provided to him.) The applicant tried to work around those weights, but could not. 15. The applicant originally complained to Opalite about the excessive tow ball weight by email of 1 September 2017, where he set out a list of matters for rectification including, in relation to tow ball weight, that some water tanks needed repositioning - the tow ball weight with tanks full is 290 kg, so this must be reduced by a substantial amount, noting "you knew I was towing with an Isuzu MU-X which has a max tow ball weight of 300 kg". (There is no mention of the applicant having been told, pre-purchase, that the tare weight would be 2,100 kg and the tow ball weight between 130 and 150 kg.) 16. The applicant sent an email to Opalite on about 19 March 2018 (no copy is provided) stating there was a major problem with tow ball weight. Following this, Opalite carried out some weighings of the tow ball weight, using scales at its premises, in different situations to show options to reduce the tow ball weight. 17. The applicant sent an email to the respondent on 5 July 2018, which included during discussions prior to placing my order for this caravan you stated – taking into account – all the items I had asked for: ie: 2 batteries, 2 spare wheels, 1) that the Tare weight would be 2,100 kg … 2) that the empty tow ball weight would be in the range of 130 kg to 150 kg .. 1. The applicant installed a rear storage box in an attempt to reduce tow ball weight, weighing 100 kg. 2. Further weighings were carried out by the respondent on 13 August 2018. The applicant returned the van to the respondent at this time with only the items included when the van was supplied to him, plus the bed board which weighs approximately 20 kg and jack accessories in case he got a flat tyre when travelling to the respondent. The mach hitch and extra chain were included, and the rear storage box was also on the van. The respondent again weighed the van at the local council rubbish tip weighbridge. The weighbridge certificate showed a tare weight of 2,480kg. No work to the van was carried out by the respondent. The applicant suggests the rear box may have been removed by Opalite as he had marked the bolts, and they were in a different position when the van was returned to him. 3. The applicant became aware there were issues with the tow ball weight with the rear storage box and so he removed it. 4. On 31 August 2018, the applicant weighed the van on a registered weighbridge following the correct procedures. The van had a weight of 2,200 kg when attached to tow car, and 2,480 kg when unhooked. The towing vehicle had a weight of 2,780kg when hooked up to the van, and 2,520 kg when unhooked. The applicant initially stated that this showed the caravan had a tow ball weight of 280 kg based on the difference of the two weights of the van, but seemed to accept after Mr May's evidence that it also showed a tow ball weight of 260 kg based on the difference of the two weights of the towing vehicle. 5. The respondent has had ample opportunity to rectify/repair the caravan by reducing the tow ball weight and tare weight but has not done so. Evidence of Colin Young 1. The applicant relied upon two reports by Mr Young, and Mr Young gave oral evidence. Mr Young has qualifications and experience in automotive engineering, and experience concerning vehicle compliance and safety, and particularly recreational vehicles. 2. Mr Young's evidence included the following. 3. His reports are prepared on the basis of information including photographs provided by the applicant. No inspection of the van has taken place. 4. There is an (admittedly vague, and not completely applicable to vans and camper trailers) definition of "Tare Mass" – in relation to Compliance – in Vehicle Standards Bulletin-1 ("VSB-1"). It is reasonable to believe that the "Tare Mass" that really matters is the "mass of the vehicle – without any consumables (water, gas etc) – when it leaves the supplier, fitted with all items that were specified on the Sales Contract. 5. The compliance plate contains incorrect and confusing information, and therefore is not compliant with VSB -1 requirements 6. The caravan is not of acceptable quality due to the unprofessional and impractical design of the location of the various storage compartments 7. The caravan is not fit for purpose as the tare mass and empty ball loading are higher than advised, hence the "legal load carrying capacity" is less than anticipated. 8. Weighbridges can have a 10-20kg discrepancy or variance. Respondents' case 1. The respondents opposed the applicant's case in its entirety, submitting that the applicant's towing vehicle is more than capable of towing the van when the towing vehicle is sensibly loaded to its GVM of 2,750kg, and the cause of the applicant's inability to load the tow vehicle as he wants to is his ignorance of the impact of the tow ball weight on the tow vehicle. The respondent denies that the applicant was told the van, upon supply, would have a tare weight of 2,100 kg and a tow ball weight of 130 to 150 kg, and denies the information in the compliance plate was false or misleading. 2. Mr Middleton's evidence was as follows. 3. The applicant visited the factory and looked at some vans being built. Prior to any discussion about the options and modifications that the applicant wanted, the applicant asked questions about the tow ball weight and tare of the van. Mr Middleton provided information about the generic, or standard, van, as he did not know at that stage what inclusions the applicant wanted. He stated that the tow ball weight was 180 to 200 kg and tare weight was around 2,100 kg. (In cross examination Mr Middleton stated that 2,100 kg was the generic base weight, with a particular van possibly being 2,120 kg or 2,150 kg as its starting weight.) Subsequently there was a discussion as to all of the things the applicant wanted in the van – outdoor kitchen, double batteries, extra spare wheel, extra battery, full oven, solar panels, 12V 240V fridge. 4. Mr Middleton agreed that the applicant told him that his towing vehicle was an Isuzu MU-X which would be fully loaded. That vehicle was more than capable of towing the van, also fully loaded. At that time he did not know the combined weight of the applicants, or the weight of items they wished to carry in towing vehicle. 5. The applicant did not ask what the tow ball weight would be after the discussion about what inclusions he wanted. Mr Middleton would not have been able to give that information at that stage. The applicant appeared knowledgeable about how the tow ball weight and other weights worked. The applicant did not ask him to explain how tow ball weight worked. At no time did the applicant express the belief that the tow ball weight was to be counted as part of the payload of the caravan rather than being transferred to the towing vehicle. If he had have, Mr Middleton would certainly have corrected him on that. 6. Mr Middleton gave a price of the generic van of $48,000 with a budget of $53,000 for the inclusions. The applicant then paid a deposit. 7. During the build, the applicant spent an incredible amount of time at the factory, and asked for a lot of changes, which resulted in a lot of things being done "on the run". He asked for a larger mattress, for another TV and TV arm to be installed, for lights to be installed, the hot water service to be placed in a cupboard forward of its usual position, an outdoor locker where hot water service would usually be, for another battery charger to be installed, for a stone guard to be installed and a mach hitch and extra length chain. 8. Mr Middleton was aware that the inclusions the applicant required would affect the tare weight and tow ball weight of the van. Save for when the applicant wanted the stone guard installed, Mr Middleton did not raise this as he considered the van would still be acceptable in terms of weights and available payload, and would still be able to be towed by the applicant's vehicle. When the applicant asked for the stone guard to be installed, Mr Middleton pointed out that that was weight going right on the ball, but the applicant said he did not care and so it was installed. 9. Mr Middleton weighed the van on 27 June 2017, and then returned to the factory, where the applicant accused him of not loading the van properly. Rather than argue with the applicant, Mr Middleton re-weighed the van (which included the stone guard being put on) and it was this second weighing that was used for registration. When the weighing was done, the van included all things being supplied with it. It did not include the ball coupling and extra chain that the applicant was going to use with the van, as Mr Middleton could not tow using that, and it was not a standard van item supplied by the respondent. Mr Middleton did not actively look at all the small things so it is possible the awning privacy screen, kitchen cover and wheel brace were not there, although the wheel brace would usually be in the van. In any event, the weight of these items was not significant – privacy screen was about 2 kg, kitchen cover was about 1 kg and wheel brace about 1 kg. 10. The weighing was done at the council tip in accordance with the usual practice. The weight of the van was measured, and a weighbridge certificate provided. Mr Middleton then hooked up the van to the towing vehicle, and weighed the van again with the weighbridge operator calling out the weight. Mr Middleton makes a note of that, and the difference is included in the compliance plate as the tow ball weight. No second certificate is provided. 11. When the van was supplied to the applicant, the applicant commented that the van was heavier than he thought, and Mr Middleton responded that plenty of extra things had been put in and the stone guard was on the ball. The applicant asked for a price for the extra things that had been done, but Mr Middleton chose not to charge him anything extra for the modifications. 12. There are things that could be done to reduce the tow ball weight, such as moving batteries to the rear of the van. The applicant told Opalite not to do that. 13. On 13 August 2018, Mr Middleton again weighed the van at the weighbridge, showing a weight of 2,480 kg. At that time, the van had the rear storage box attached and all the gear in it that the applicant had added. Mr Middleton called Mr May to check the van, as he wanted to look at possible ATM and/or GTM increases. Mr May stated that the van was not legal because of dangerously low tow ball weight, because of the rear storage box. Mr Middleton denied removing the storage box at any time. He was advised not to do any work on the van as that might make him complicit in the van not being legal. 14. Other evidence and submissions on behalf of the respondent included the following. 15. Opalite's advertising material, covering four models of caravan (of which the model purchased by the applicant was the second longest), includes a statement "Designed to be towed by the family car" followed by a paragraph to the effect that the lightweight design and rigid construction of the vans enables them to be towed by smaller vehicles than would be the case with many similar sized vans. The respondent submits that, at the time the applicant purchased his van, the two smaller length vans could be pulled by a Holden Commodore or Ford Falcon, and that vehicles such as the Isuzu MU-X LS-T and Toyota Landcruiser Prado fall within the description "family car". 16. The caravan meets the reasonable needs of the applicant. According to the Caravan Industry Association of Australia, minimum design payloads as per RVMAP Code of Practice are a payload for tandem vans of 400 kg. Payload of this van upon delivery to applicant (as set out in compliance plate) was 520kg. Payload of 520 kg can be added to the van, distributing the additional weight over the van so as not to increase the weight on the tow ball. The configuration of the van is such that a significant part of the loading capacity is above and behind the wheel axles of the van, enabling lightening the tow ball weight and load balancing. 17. The load in the towing vehicle is outside of any control or responsibility of the respondent. The applicant's Isuzu MU-X LS-T has the capacity to tow the van when reasonably loaded. The Isuzu is recognised in Carsguide as having load-hauling excellence, rated to tow up to 3,000 kg of braked trailer without having to reduce its peak payload of 675 kg. 18. The applicant took delivery of the van on 28 June 2017, and in doing so accepted at that time that the requirements of acceptable quality were met – all relevant weights were set out at that time on the compliance plate. He inspected the van, accepted it, paid for it in full and took delivery. 19. The respondents have provided an "Enhanced weight summary" in an attempt to explain the differences in the weights of the van and tow ball weight from time to time. In summary, the difference between the 2,100 kg provided as the weight of the generic van and the actual tare weight upon registration is explained by the inclusions the applicant wanted, included those he added in during the build; and the changes between the figures included in the compliance plate and later weighings are explained by the addition of further things in the van when those later weighings took place. Ron May's evidence 1. The respondent relied on a report by Mr May, and Mr May gave oral evidence. He is a licensed certifier under the Vehicle Safety Compliance Certification Scheme with mechanical and auto engineering experience and qualifications, and is experienced in assessing compliance with relevant Australian Design Rules, and assisting people to load their caravans to appropriately balance weight in the van. 2. Mr May's evidence included the following. 3. Generally caravans supplied to the Australian market are designed and constructed with a tow ball weight at tare of 8-13% of the vehicle's GTM for single axles and 7-11% for tandem axles. Here, on both the weights supplied by the applicant and the weights supplied by the respondent, the tow ball weight at tare acceptably falls within the relevant 7-11% range. 4. Mr May has not inspected the inside of the van but, on the basis of his experience, was able to comment on the layout of the van from viewing the plans of the van. 5. The layout of the applicant's caravan, in terms of the location of storage compartments, is very typical, extremely common. The van could be loaded in a way to maintain an appropriate ratio between tow ball weight and weight on the axles. Weight placed over the axles is unlikely to affect tow ball weight. Weight placed forward of the axles will increase the weight on the tow ball, and weight placed behind the axles will decrease the weight on the tow ball. 6. The Australian Design Rules and Vehicle Standards Bulletin 1 do not prescribe how tow ball weight is to be established. Tow ball weight at tare is to be measured; it cannot be calculated. Measurement can be done by weighing on a weighbridge the van attached to the towing vehicle, and then weighing the van (or the towing vehicle) on its own. The difference between the results of the two weighings is the tow ball weight. 7. It is acceptable for a public weighbridge to have a skew of up to 20 kg. For example, a result from a weighing of 100kg, could actually be 80 or 120 kg. Looking at the results of the applicant's weighing on 31 August 2018, the figures for the car suggest a tow ball weight of 260 kg, and the figures for the van suggest a tow ball weight of 280kg. Taking into account a possible skew of 20kg, it is possible that the tow ball weight was as low as 240 kg or as high as 300 kg. It would be necessary to find out from the weighbridge operator what the skew was to determine the likely tow ball weight. On the information available, the probable tow ball weight was 270 kg, which is between the two figures obtained. It is not probable that the tow ball weight was as high as 300 kg empty. 8. It is the responsibility of the caravan's operator to ensure it is loaded in a manner such that maximum tow ball loading is not exceeded. Looking at the design of this van, loading the van is likely to increase the weight on the towball. It would however be easy to load it to keep under the tow ball maximum loading of 300 kg. 9. If there was a major issue with the tow ball weight, relocation of the batteries and/or hot water system would significantly reduce it. For example, it is very common for the hot water system to be situated at the back near the shower. Without having inspected the van, Mr May was not able to say exactly where the hot water system could be placed. 10. When Mr May attended the respondent's premises to view the van on 13 August 2018, he found it to have a dangerously low tow ball weight, contributed to by the rear storage box. Consideration 1. There was no dispute between the parties that this was a consumer claim for the purpose of the Fair Trading Act 1987, that the Tribunal has jurisdiction to hear and determine it, and that the consumer guarantees under the ACL (NSW) were applicable. I am satisfied in relation to those matters. 2. The parties were in high conflict throughout these proceedings; there were many issues in dispute that were hotly contested and little documentary material to evidence what occurred some years ago now. I have made the findings of fact and conclusions necessary to determine the applicant's claim. It is not necessary, or desirable in the circumstances, to make findings on all issues in dispute between the parties. Evidence of Mr Young and Mr May 1. The respondent objected to Mr Young's report on bases including that it is written as an advocate for the applicant and has ignored the directions given by the Tribunal as to the matters to be reported on, is based solely on self-serving information provided by the applicant, and noting Mr Young did not consider it necessary to inspect the van before concluding it was not of acceptable quality due to the unprofessional and impractical design of the location of the various storage compartments. Similarly the applicant objected to Mr May's report on the basis that it was not appropriate for him to address the matters he sought to address. I consider that both Mr Young and Mr May are suitably qualified and experienced to comment on matters concerning the weights, layout and loading of caravans, and that evidence they gave was relevant and of assistance to the Tribunal in considering the issues in this matter. I consider it is appropriate to have regard to their evidence and that the parties' objections are best considered as submissions as to the weight that should be given to the evidence. 2. Generally where there are differences in the evidence given by Mr May and Mr Young, I prefer the evidence of Mr May for the following reasons. Mr Young appeared from his background to be suitably qualified and experienced to provide an opinion on tow ball weights. However he stated in his report that "the actual empty tow ball weight is 280 kg", on the basis of the applicant's weighbridge certificate. This overlooked the fact, picked up quickly by Mr May upon seeing the certificates, that the certificates indicated a tow ball weight of 260kg or 280kg. Further, Mr Young's answers in oral evidence appeared at times to be a little confused or unresponsive to questions put to him, and he also had a tendency at times to advocate for the applicant rather than expressing independent views. False representation as to tare weight ( 2,100 kg) and tow ball weight (130 to 150 kg) 1. The applicant claims that he was informed by Mr Middleton that the van, upon supply, would have a tare weight of 2,100 kg and a tow ball weight of 130kg to 150 kg. Mr Middleton's evidence was that, prior to the discussion with the applicant as to the inclusions and modifications he wanted, Mr Middleton told him that a generic or standard van would be about 2,100 kg at tare, with a tow ball weight of about 180 kg to 200 kg. These weights would then vary with what inclusions or modifications there were. There is no documentary evidence to support either version of events and, given the passage of time, it is possible recollection is not as good as it might otherwise be. Overall I prefer the evidence of Mr Middleton for the following reasons. 2. I am not satisfied that Mr Middleton told the respondent at any time that the van would have a tow ball weight of 130 kg to 150 kg. Mr Middleton denies he did that, and his evidence was that a generic van of this model has a ball weight of 180 kg to 200kg. Mr May's evidence was to the effect that it was standard in the Australian market for tandem axle vans such as this to have a tow ball weight at tare of 7-11% of the van's GTM, which for this van would be between 182 kg and 286 kg. This suggests against Mr Middleton stating the tow ball weight would be 130 to 150 kg. 3. The applicant suggests the figures for tare weight and tow ball weight he claims were provided to him by Mr Middleton are comparable with figures provided for similar sized vans by other manufacturers. However the figures for those other vans, at least the Avida, are for the standard model, with any options or modifications to be added on. It is likely the position is similar for other vans. 4. I accept Mr Middleton's evidence that the generic caravan of this model would have a tare weight of about 2,100 kg and any options or modifications would increase the tare weight from that point. It is plausible that Mr Middleton would have been aware of the weight of the generic caravan in this model, as that is something that would not vary significantly from van to van. There would have been no apparent incentive for Mr Middleton to given inaccurate information about the weights of the van in the discussion taking place before the van was purchased as, if he did, he may well end up building a van that would not be accepted by the customer. 5. I am satisfied Mr Middleton knew his product sufficiently well to know the weight of the generic van, and that figure could easily be given to a customer. Adding options or modifications to the caravan will increase the tare weight and possibly the tow ball weight. It would be more difficult to give a weight for a caravan once it had the options and modifications included because that would vary from van to van. It is something that Mr Middleton may have been able to calculate but I consider it is more likely that Mr Middleton told the applicant the tare weight of the generic van and that the van would be around 2,100 kg, depending on what was on it. 6. It is more likely that the applicant would have asked about weights and whether the van could be towed by his towing vehicle prior to having the extended discussion, over an hour, with Mr Middleton about possible inclusions and modifications for the van, as there was no point in having that discussion if the van was inherently unsuitable. 7. In any event, I am satisfied that the applicant required further modifications to be done during the construction process which were not agreed upon by the parties prior to the order for the van being placed. These included the installation of additional items and relocation of various items. This is likely to have increased the tare weight of the van, and also the tow ball weight, and the applicant ought reasonably have known that. For example, the installation of the stone guard over the ball and the relocation forward of the hot water service are likely to have increased tow ball weight. The addition of the mach hitch and extra chain would also have affected the ball weight although it seems these were not included when the van was weighed on 27 June 2017. In these circumstances, it was not reasonable for the applicant to consider the van that would be supplied would have a tare weight of 2,100 kg and a tow ball weight of 130 kg to 150 kg (if that is what was even said, which I do not accept). 8. Further, the applicant accepted the van with the higher weights as set out in the compliance plate. I do not accept that he stated at that time that, if he could not work around those weights, the respondent would need to supply a van with a tare weight of 2,100 kg and tow ball weight of 130-150 kg. This was raised for the first time after the second hearing and fails to take into account increases in weight resulting from the changes the applicant required during the build process. False representation that van could be legally towed by the applicant's Isuzu when fully loaded 1. The respondent accepts that the applicant was told, prior to ordering the van, that it could be legally towed by the applicant's towing vehicle when the towing vehicle was fully loaded. 2. The applicant had stated that the towing vehicle had a maximum tow ball weight of 300 kg, a maximum GCM (gross combined weight of car and van) of 5,750kg and maximum GVM (gross vehicle mass) of 2,750 kg, and the car would be close to maximum GVM when the car and caravan were fully loaded, with both applicants in the vehicle, for long term trips to many parts of remote Australia. 3. The ATM of the van was 2,800kg, and the maximum tow ball weight was 300 kg. 4. The towing vehicle was therefore able to legally tow the van. Even if the towing vehicle was fully loaded to its capacity of 2,750 kg, it could still tow the van at the van's ATM of 2,800 kg, as these weights together fell within the towing vehicle's GCM. The towing vehicle could also tow the van with the van's maximum tow ball weight of 300 kg. 5. The difficulty for the applicant is that he had not appreciated at the time that the van's tow ball weight had to be included in the load of the towing vehicle, that is, within the 2,750 kg. I am satisfied this issue was not specifically discussed with Mr Middleton, as if it had have been, it is very probable that Mr Middleton would have corrected the applicant's understanding. In the absence of indication to the contrary, Mr Middleton was entitled to assume the applicant had taken into account the caravan's tow ball weight in calculating that the car would be close to maximum GVM of 2,750 kg when the car and caravan were fully loaded. 6. As set out above, I am satisfied Mr Middleton stated to the applicant that the tow ball weight at tare would be about 180 kg to 200 kg, and the onus was on the applicant to take that into account as part of the weight of the towing vehicle. On the basis of Mr May's evidence in particular, which I accept, the van could be modified or loaded in ways to reduce the tow ball weight if that was an issue. 7. I am not satisfied, on the balance of probabilities, that the respondent engaged in conduct that was misleading or deceptive or was likely to mislead or deceive, in stating that the applicant's towing vehicle could legally tow the van. False representation that van can be towed by a family car 1. Given the representation made specifically to the effect that the van could be towed by the applicant's Isuzu (which I have considered above), I do not need to consider whether there was any false or misleading representation made about the van being able to be towed by a family car. That is because I am satisfied that the applicant relied on the specific representation made about his Isuzu rather than any more general representation made in the advertising brochure. False information about tare weight and tow ball weight in compliance plate 1. The onus is on the applicant to establish that the weights in the compliance plate (tare weight of 2,280 kg and tow ball weight of 200 kg) were false, misleading or deceptive. I am not satisfied he has discharged that onus for the following reasons. 2. The weighbridge certificate shows a tare weight of 2,280 kg for registration purposes. I am satisfied on the basis of Mr Middleton's evidence that the van, when weighed, contained substantially all the items to be supplied with the van, and if any of the small things were missing (which he was not certain they were), they weighed about 4 kg in total. It appears the mach hitch and extra chain were not included but Mr Middleton did not consider them to be standard van items supplied by the respondent such that they had to be included. The coupling that Mr Middleton used to tow the van would likely to have been included, so that would offset to some extent the weight of the mach hitch and chain if they should have been included (although I am not satisfied they should have been). Any variation in the tare weight obtained as a result of items not being included is not material noting that a variance of 20 kg for a weighbridge is acceptable. 3. Further, if the tare weight recorded in the compliance certificate was inaccurate because the items were not included (which I am not satisfied of), then the applicant was aware of that because it is he who raised the issue of the items not being included. He should therefore be aware the tare weight in the compliance certificate did not include those items, and he should take into account the weight of those items as part of the payload. A reasonable consumer in the applicant's position would not have been misled by the information about tare weight in the compliance plate in those circumstances. 4. The applicant claims that Mr Middleton told him on several occasions that the tare mass was measured when the van was still hooked up to the towing vehicle, and on that basis the applicant claims the measurement of 2,280 kg was not a proper measurement of the tare mass. Mr Middleton denies this. I am not satisfied that the measurement was taken when the van was still attached to Mr Middleton's vehicle because Mr Middleton knew that was not how the tare weight measurement was to be taken, as would probably the weighbridge operator, and if Mr Middleton was trying to hide the true weight then he it is implausible he would have told the applicant that the weighing was done whilst the van was still attached to his vehicle. 5. The applicant relies on a claimed statement by Mr Middleton to the effect that the tow ball weight was calculated, rather than being a measured weight. Mr Middleton denied that was the case, and gave evidence about how the weighing took place on 27 June 2017, which was in accordance with a method that was generally considered by the witnesses to be acceptable. It is certainly less than ideal that no second weighbridge certificate is provided but nevertheless I accept Mr Middleton's evidence about how he arrived at the tow ball weight of 200 kg at the time of registration. He may have stated that the tow ball weight was calculated, but I am satisfied that if he did he was referring to the process of arriving at the weight as being the difference between the two readings taken. 6. The applicant relies on weighings carried out at various times in 2018 to contend that the tare weight and the tow ball weight were higher than shown in the compliance plate when the van was supplied to him. There had been some inclusions and modifications to the van in between the time of supply to the van to him, and when the weighings were done, but the applicant submits that the inclusions could be accounted for, or removed, so that the later weights could be used as a basis for finding that the figures in the compliance plate were false. 7. No independent expert evidence as to the van's tare weight and tow ball weight is before the Tribunal. The weighings done have been done by the parties. 8. In relation to tow ball weight, many different readings of tow ball weight have been obtained, including when the items in or on the van have been moved or modified, and using different weighing instruments. I am not prepared to accept, simply on the basis of the results of those later weighings, that the tow ball weight included in the compliance certificate was not correctly measured or calculated as I have accepted Mr Middleton's evidence of how that was done on 27 June 2017. 9. I am satisfied that Mr Middleton reweighed the van at the weighbridge on 13 August 2018 and obtained a tare weight of 2,480kg – 200 kg higher than when the van was first weighed. Mr Middleton's evidence was not clear as to what was in the van when it was weighed on 13 August 2018. However, he was clear that the rear storage box (which weighs about 100 kg) was on the van. The applicant's evidence was that the van was returned to the respondent with the bed board (20 kg), jack accessories and the mach hitch and extra chain were included, and the rear storage box was also on the van, and it probable these items were included on the van when it was weighed on 13 August 2018. 10. The applicant submitted Mr Middleton may have removed the rear storage box for the weighing but I am satisfied that he did not because it was still on there when Mr May later that day met Mr Middleton at the factory to look at possible alterations to ATM and/or GTM. Mr May expressed the view that the van was not legal because of excessively light tow ball weight and advised Mr Middleton against doing anything to the van otherwise he might be complicit in the issue. It is implausible that Mr Middleton weighed the van, took the box off and then put the box back on before Mr May attended, as the arrangement with the applicant had been that the van would be weighed, box taken off, and then reweighed. However only one weighing had taken place before Mr May attended. 11. The items referred to above (box, bed board, jack, mach hitch and extra chain) were not in the van when it was weighed on 27 June 2017 and their presence on 13 August 2018 would account for a large part of the 200 kg difference in weight. Further, Mr May and Mr Young agreed that a weighbridge could have a skew or variance of up to 20 kg. 12. The results of this weighing on 13 August 2018 support a conclusion that the information in the compliance plate was not misleading or deceptive. 13. The evidence of the applicant was that, when he weighed the van on 31 August 2018, it had a tare weight of 2,480 kg without the rear storage box. It is not clear on the evidence what caused the discrepancy between the weighings done on 13 August 2018 and 31 August 2018. The applicant has provided evidence of how he undertook the weighing, but it is possible an error occurred, or possibly some error with one of the weighbridges although there is no evidence to support that. As noted above, there is no independent expert evidence about the weights. Generally, I consider it is likely that Mr Middleton, who is more experienced in carrying out weighings, would be less likely to make a mistake than the applicant, but I simply do not know why there is the discrepancy between the results of the weighings on 13 August 2018 and 31 August 2018. 14. The onus is on the applicant to establish that the information in the compliance plate was false, misleading or deceptive, and on the evidence before me, I am not satisfied he has discharged that onus. Not fit for purpose because unable to be towed by towing vehicle 1. As set out above, the applicant's towing vehicle was able to legally tow the van. Mr May's evidence, which I accept, was to the effect that is the responsibility of the caravan's operator to ensure it is loaded in a manner such that maximum tow ball loading is not exceeded; it would be easy to load this van to keep under the tow ball maximum loading of 300 kg; and if there was a major issue with the tow ball weight, relocation of the batteries and/or hot water system would significantly reduce it. 2. On the evidence before me, I am not satisfied the van is unable to be towed by the applicant's towing vehicle. Not fit for purpose because of inadequate payload 1. The evidence provided by the respondent was to the effect that minimum acceptable payload for a van such as this would be 400 kg. Here, on the basis of the figures in the compliance plate (which as set out above I am not satisfied are false), the payload is 520 kg. As noted above, the tare weight of the van was increased by the modifications and inclusions the applicant sought, and that has an impact on payload. Even after that, the payload is 520 kg. I am not satisfied on the evidence before me that that payload is inadequate. Not of acceptable quality due to layout of storage compartments 1. I am not satisfied the caravan is not of acceptable quality due to the design of the location of the various storage compartments. 2. The applicant submits that the layout is unprofessional and impractical, relying on the evidence of Mr Young, who has not inspected the van. In contrast, Mr May, who also has not inspected the van, gave evidence that the layout was extremely common, and the van could be loaded in a way to maintain an appropriate ratio between tow ball weight and weight on the axles, and keep under the tow ball maximum loading of 300 kg. For the reasons set out above, I am generally not prepared to accept the evidence of Mr Young over Mr May. I note also that Mr May's evidence on this point was very detailed, and I accept he has a lot of experience in dealing with van loading issues. The onus is on the applicant to satisfy the Tribunal that the van was not of acceptable quality due to the design of the location of the various storage compartments, and he has not discharged that onus. Not of acceptable quality because issues have required rectifying 1. As noted in Safi above, a "reasonable consumer" would expect teething problems, even in a new vehicle. I am not satisfied on the evidence presented that the van was not of acceptable quality because there were issues requiring rectification. Mr Middleton 1. I am satisfied that Mr Middleton, in his dealings with the applicant, was acting on behalf of Opalite. The applicant has not made out any cause of action against Mr Middleton personally, and the application against him is dismissed. Orders 1. It follows that the application is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2019