Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alexander Johnson v Sydney RV Group Pty Ltd [2019] NSWCATAP 206 Hearing dates: 26 June 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member S Thode, Senior Member Decision: Appeal is dismissed. Catchwords: MOTOR VEHICLE – consumer law – ACL – fit for purpose – major failure – acceptable quality – whether error of law Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Motor Dealers and Repairers Act 2013 (NSW) Cases Cited: Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Safi v Hartland Motors t/as Hartland Chrysler [2016] NSWCATAP 80 Texts Cited: None Category: Principal judgment Parties: Alexander Johnson (Appellant) Sydney RV Group Pty Ltd (Respondent) Representation: Solicitors: Ms Savage (Appellant) Mr M Lowe (General Manager) (Respondent) File Number(s): AP19/18060 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 11 April 2019 Before: T Simons, Principal Member File Number(s): MV 18/20817 REASONS FOR DECISION OVERVIEW 1. In April 2016 the appellant purchased a 1993 Holden Rodeo campervan from the respondent. The appellant alleged that after six (6) weeks the vehicle broke down. He alleged that there had been a major failure or a breach of the consumer guarantees. He sought a refund from the respondent. The respondent denied such a refund. 2. The Tribunal found that there had not been a major failure or a breach of the consumer guarantees as alleged by the appellant. The appellant now appeals from this Decision. BACKGROUND HISTORY 1. This is an internal appeal from the decision made by the Tribunal sitting at Penrith on 21 August 2018 and in respect of which the date of the Decision was 11 April 2019. 2. On Saturday 9 April 2016 the Appellant attended the sale yard of the Respondent, paying a deposit of $1,000 on 11 April 2016. The final payment of $24,740 was made, and on 15 April 2016 the Appellant took possession of the vehicle, a 1993 Holden Rodeo Winnebago (the Vehicle). 3. The Vehicle came with a "Dealer Guarantee" of a three month or 5,000km warranty, which guarantee was noted in the invoices and sale contract. 4. The original claim included the seeking of a money order for $25,740, being the full purchase price. The Vehicle was returned to the Respondent for repairs, but the Appellant has declined to take delivery of the Vehicle. 5. The Tribunal did not accept any entitlement to a refund and the orders of 11 April 2019 as challenged on appeal are: "(1) That the Applicant is to collect the Holden Rodeo campervan from the Respondent by 30 April 2019. (2) The Registrar is to pay the Respondent $26,828.40 received on 7 August 2017 from Sydney RV Group Pty Ltd and held in trust in accordance with the orders of the Appeal Panel made on 27 July 2017. (3) The application is otherwise dismissed." GROUND 1 1. Ms Savage, solicitor for the Appellant, confirmed before us that the grounds of appeal are set out in the filed Notice of Appeal which appeals on the basis of alleged errors of law. In particular, the Notice of Appeal does not seek leave to appeal from the Decision below. Also, Ms Savage, did not during the hearing seek leave to appeal. 2. Ground 1 of the Notice of Appeal is as follows: "The Tribunal made an error in law by not giving proper consideration to the issue and evidence regarding the weight of the vehicle, at [18] of the decision." Submissions of the Appellant 1. The Appellant submitted that there is sufficient evidence to show that the Vehicle weighs above the TARE weight of 2,200kg. This, it was said, in turn impacts on the payload capacity, and may cause the Vehicle to weigh more than its specified standard of a GVM of 2,730kg. 2. In turn, it was submitted that the weight of the Vehicle has an impact on how it handles, travels and stops. Furthermore, if loaded with large musical equipment as envisaged by the Appellant, it is illegal to drive as the Vehicle becomes overweight. Consideration 1. Paragraph [18] of the Decision, referred to by the Appellant, is as follows: "Mr Johnson and Ms Bowen claim that the vehicle was overweight and was over its legal limit. Ms Bowen, on behalf of the applicant directed the Tribunal to the various weights that were taken of the vehicle during the time. She alleges that they breached the TARE weight and referred the Tribunal to photographs of the alleged TARE weight in the vehicle. Mr Johnson states that he explained that he would be carrying heavy equipment in the vehicle and that once he did the vehicle became overweight." 1. The Tribunal noted that the Vehicle at the time of the sale had undergone an independent examination for a three month registration of the Vehicle. A Certificate of Registration was issued. A copy of the Roads & Maritime Services Authorised Inspection Station E-Safety Check Report dated 2 April 2016 was tendered which indicated that the vehicle complied with the inspection standards of the rules for authorised inspection stations at the time of inspection. 2. The Tribunal noted at [20] "There is no mention that the brakes were not working or that the vehicle was overweight or any other safety defects". 3. Nextly, the Tribunal dealt with the issue of the weight of the vehicle, along with other alleged defects, at [24] of the Decision, relevantly as follows: "On 14 September 2016, after the alleged incident with the brakes failing in Macquarie Pass, the vehicle taken [sic] by the Applicant to NRMA Motor Serve at Oak Flats to be assessed for renewal of registration purposes. There is no suggestion that there had been any repair of the brakes by that stage. The vehicle was passed by an RMS examiner. A brake test was conducted. The odometer reading then was 279,521 kms. A copy of the Transport Roads & Maritime Services Inspection Station e-Safety Check Report was provided with the respondent's documents dated 14 September 2016 identifying that an inspection was carried out and in the report tyres, wheels and brakes were described as "satisfactory" and at 50%. The report passed the vehicle for registration. Rust was advised as being "satisfactory" both in the exterior of the campervan and of the "underbody" which included "frames and members". The vehicle was noted as being modified but it was not marked as unsafe although there is a section to mark if that is the case. One would have expected that of [sic] there were the issues regarding the weight of the vehicle and the brakes as the applicant is now claiming, they would have been identified in the report. The general comment upon the campervan was that: This vehicle is in reasonable condition and fair mechanical condition considering its age with repairs required." 1. At [28] of the Decision the Tribunal found the Vehicle was "fit for the purpose and was suitable for the Applicant's touring schedule, including for carrying there [sic] items". 2. In order to amount to an error of law, it must be demonstrated that there was no evidence to justify the conclusion of the Tribunal or, alternatively, that no reasonable tribunal could have come to the conclusion that it did: see John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](7) and (8). 3. Further, in respect of whether or not the Tribunal failed to take into account a relevant (i.e., mandatory) consideration, the Appeal Panel in Director-General, Department of Finance and Services v Porter [2014] NSWCATAP 6 at [28] stated the following: "Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing), instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory manner must be approached with caution, with care to avoid any impermissible reconsideration of the merits of the decision." 1. In our view, in light of the evidence that was before the Tribunal and its consideration of that evidence in its Decision as noted above, we are not satisfied that the Tribunal failed to give proper consideration to the issue regarding the weight of the Vehicle or that there was no evidence to support its finding of fact. Further, we are not satisfied that the Decision could be described as being so unreasonable that no reasonable decision-maker would make it. 2. Accordingly, we reject ground 1. GROUND 2 1. Ground 2 is as follows: "The Tribunal made an error in law by failing to give proper consideration to the consumer guarantee available under s.54 and s.55 of the ACL, in particular the goods being of acceptable quality, suitable for their intended use, and disclosed purpose. The vehicle also did not match the description used in advertising, per s.56 of the ACL." Submissions of the Appellant 1. The Appellant made three submissions under this ground of appeal. First, within the meaning of s.54(2) of the Australian Consumer Law (ACL), the Vehicle was not fit for all purposes for which goods of that kind are commonly supplied; was not free from defects; was not safe; and was not durable. The Appellant submitted that it became apparent after taking delivery of the Vehicle, and in particular after it allegedly suffered a major brake failure, that it was not of acceptable quality, or of an acceptable standard. 2. Second, the Appellant submitted that the Vehicle was not fit for its disclosed purpose within the meaning of s.55 of the ACL. Finally, the Appellant submitted that the Vehicle did not correspond with the description used in advertising within the meaning of s.56 of the ACL. 3. In respect of this third claim, the Appellant referred to the fact that the Vehicle was described in advertising with language such as "a strong and reliable Rodeo" and "a great weekender to just get away". 4. The Appellant's submissions traversed the evidence in a broad and wide-ranging fashion. For example, the Appellant submitted that the Tribunal "gave little or no regard to the evidence of the Appellant or Ms Morgan" and did not give "proper consideration" to the alleged breaches of the consumer guarantees or failed to properly address breach of these guarantees "and in doing so gave improper validity to the statutory warranty, which can only apply to vehicles that are no more than 10 years old, and have travelled less than 160,000km". The reference to "statutory warranty" is a reference to s.69(5) of the Motor Dealers and Repairers Act 2013 (NSW). Consideration 1. The Appeal Panel refers to the previous discussion as to what will amount to an error of law "by failing to give proper consideration" to alleged claims by an applicant. 2. First, it is clear that the Tribunal did properly consider the issue as to whether or not there had been a failure to comply with the consumer guarantees under the ACL. It referred specifically to its understanding that a failure to comply with the consumer guarantees was the allegation being made and addressed by the Tribunal: see [7]. It then referred to the relevant legislation at [8]-[9] and referred to the decision of Safi v Hartland Motors t/as Hartland Chrysler [2016] NSWCATAP 80 in respect of issues arising under the law with respect to the consumer guarantees under the ACL. 3. Secondly, in terms of the broad submission that the Tribunal failed to give proper consideration to the evidence led with respect to the claim of breach of the consumer guarantees, in our view, it is clear that the Tribunal did give proper consideration to this evidence and the submissions made below. We refer to the reasoning process of the Tribunal made below as follows: "15 On about 18 May 2016, whilst Mr Johnson and Ms Morgan were travelling in Victoria, they took the campervan to Gadgets Caravan Services at Carrum Downs to replace the accelerator cable which was not working. The respondent agreed to reimburse the $372 charged for the work. A copy of Tax Invoice No 1197 from Gadget's Caravan Services dated 19 May 2016 has been provided with the documents. Ms Morgan wrote to the respondent in an email dated 19 May 2016 thanking them. No other defects were identified by Ms Morgan in that email. 16 On about 24 May 2016, Mr Johnson took the campervan to PTJ's Mechanical Service in Mornington, Victoria. That invoice was also provided and indicated that a full service was carried out and included a check of the "belts, hoses and lights and brakes". The invoice records the odometer reading to be 278,546 km. By that stage the vehicle travelled some 5,167 kms between 15 April 2016 and 24 May 2016 and was out of warranty. 17 Both Mr Johnson and Ms Morgan, in their statements and at the hearing, referred to Ms Morgan driving the vehicle down Macquarie Pass on or about 25 May 2016 and experiencing a brake failure. Ms Morgan had only received her red P plates in November 2015. 18 [quoted above] 19 Having considered the evidence age, odometer reading and condition of the vehicle, the Tribunal does not find there has been a major failure or a breach of the consumer guarantees as alleged by the applicant. 20 The applicant purchased a 1993 vehicle, there was an odometer reading at reading of 273,379 kms. The vehicle was sold with a dealer's warranty limited for 3 months or 5,000 km. At the time of sale the dealer arranged a 3-month registration of the vehicle to the name of Mr Johnson. This required the vehicle to be independently examined and a Certificate of Registration was issued. The respondent has included a copy of the Transport Roads & Maritime Services Authorised Inspection Stations at the time of the inspection. There is no mention that the brakes were not working or that the vehicle was overweight or any other safety defects. 21 Following the purchase of the vehicle the applicant and Ms Morgan travelled significant distances touring in Queensland and Victoria. The respondent has included an email from Ms Morgan to them dated 4 May 2016, notifying of some defects. The respondent arranged for the defects to be repaired under warranty and the Tribunal finds that none of those items would constitute a major failure. In the email sent by Ms Morgan there no mention of brake issues which both Mr Johnson and Ms Morgan claim were noticeable from the beginning. 22 Mr Johnson alleges that on 10 May 2016, Ms Morgan had been charged for a red-light camera because the brakes were not working. On about 18 May 2016 when Mr Johnson and Ms Morgan took the campervan to Gadgets Caravan Services at Carrum Downs in Victoria it was only to fix the accelerator cable, there was no mention of the brakes in the invoice from Gadgets Caravan Services or any other problem. Ms Morgan wrote an email to the respondent on 19 May 2016 thanking them and raised no other issues. That is not consistent with someone who had done large kilometres on the vehicle and believed that the vehicle had major failure or that there was a breach of warranties. 23 On 24 May 2016, Mr Johnson took the campervan to PTJ's Mechanical Service in Mornington, Victoria. The invoice from the mechanic is provided in the documents indicates a full services was carried out and includes a check of the, "belts, hoses and lights and brakes". The invoice records the odometer reading to be 278,546 km. There is no indication that there was an issue with the brakes in that invoice. 24 The vehicle also passed a number of safety inspections. Firstly, it passed an inspection when the respondent arranged to have the vehicle registered in the applicant's name when it was sold to him. On 14 September 2016, after the alleged incident with the brakes failing in Macquarie Pass, the vehicle was taken by the applicant to NRMA Motorserve at Oak Flats to be assessed for renewal of registration purposes. There is no suggestion that there had been any repair of the brakes by that stage. The vehicle was passed by an RMS examiner. A brake test was conducted. The odometer reading then was 279,521 kms. A copy of the Transport Roads & Maritime Services Inspection Station e-Safety Check Report was provided with the respondent's documents dated 14 September 2016 identifying that an inspection was carried out and in the report, tyres, wheels and brakes were described as "satisfactory" and at 50%. The report passed the vehicle for registration. Rust was advised as being "satisfactory" both in the exterior of the campervan and of the "underbody" which included "frames and members". The vehicle was noted as being modified but it was not marked as unsafe although there is a section to mark if that is the case. One would have expected that if there were the issues regarding the weight of the vehicle and the brakes as the applicant is now claiming, they would have been identified in the report. The general comment upon the campervan was that: This vehicle is in reasonable condition and fair mechanical condition considering its age with repairs required 25 In a further inspection from NRMA dated 30 January 2017 and provided by the respondent it was reported the front and rear brakes as being "50-75% approx." As to remaining items requiring adjustment or replacements, many were as a consequence of ordinary wear and tear, considering the age of the vehicle. 26 The inspection does not demonstrate a breach in relation to the or any brake failure. One would expect that if such a defect existed it would have been identified in the safety checks. 27 Ms Morgan was an inexperienced driver having obtained her provisional driver's licence in November 2015. The Tribunal finds that her inexperience may explain her perception of brake failure during the Macquarie Pass steep descent. The Tribunal does not accept that there could have been an actual brake failure. Ms Morgan stated that she continued to drive using the handbrake for a distance and all the way to the repairer. The Tribunal finds that Ms Morgan panicked due to her inexperience in driving and not due to any brake failure. 28 There [sic] Tribunal accepts that there were some minor matters with the vehicle that were attended to by way of repair under warranty. The respondent also reimbursed the applicant for the repairs undertaken to the accelerator in Melbourne. The Tribunal also finds that the vehicle was fit for the purpose and that was suitable for the applicant's touring schedule, including for carrying their items. Accordingly, the applicant's claim is dismissed. 29 The Tribunal does not accept that the respondent is responsible for any further repairs. In relation to the applicant's assertions that the solar power unit had broken down again after only two days of the respondent fixing it, there is no independence evidence in relation to this defect or in relation to any of the other defects which the applicant now claims the respondent failed to repair. The onus of proof lies with the applicant and Tribunal does not find that the applicant has discharged the onus of proof. On that basis that part of the application is also dismissed." 1. Accordingly, we reject ground 2. GROUND 3 1. Ground 3 is as follows: "The Tribunal made an error in law by not giving proper consideration to s.259, and s.260 of the ACL, the consumer is entitled to a remedy where there is non-compliance with the consumer guarantees. This remedy is either one of repairs, replacement or refund. The Tribunal erred in law by not ordering remedy based on the fact that there were multiple non-compliances with the consumer guarantees." Submissions of the Appellant 1. The Appellant firstly submitted that "the Tribunal relied on the Statutory Warranty as the benchmark, and not the consumer guarantees under the ACL". It referred to paragraph [16] of the Decision which we have quoted above. Secondly, the Appellant referred, again in broad and conclusionary terms, to the evidence led below which he alleged established that there had been a "major failure" and breaches of the consumer guarantees. 2. Thirdly, the Appellant submitted that the Tribunal "failed to address the fact that the Appellant had rejected the goods and sought a full refund". Consideration 1. First, it is clear, despite the reference to the Vehicle being out of warranty at [16] that the Tribunal did not fail to consider whether or not there had been a breach of the consumer warranties. Nor did the Tribunal rely upon the Vehicle being out of statutory warranty in concluding that there had been no breach of the consumer guarantees. The Appeal Panel refers to the reasoning of the Tribunal quoted above and in particular the finding at [19] that it could not find that there had been a major failure or a breach of the consumer guarantees as alleged by the Appellant, being the applicant below. 2. Secondly, for the reasons already given, the Appeal Panel is not satisfied that there was a failure to give proper consideration to the submissions made with respect to the alleged "multiple non-compliances with the consumer guarantees". 3. Thirdly, it is clear that the Tribunal did give "proper consideration" to the fact that the Appellant had rejected the goods and sought a full refund: see, for example, paragraph [5]. There is reference to a claim for a refund of the purchase price for the campervan and it is obvious, given the orders made by the Tribunal for the Appellant to collect the Vehicle, that it was aware of and addressed the fact that the Appellant had rejected the goods and sought a full refund. 4. Accordingly, we reject ground 3. GROUND 4 1. Ground 4 is in the following terms: "The Tribunal made an error in law by not giving proper consideration to the repairs that had already been undertaken, and to the multiple continuing defects that still require repair. These would, in the alternative, amount to a major failure." Submissions of the Appellant 1. The Appellant, after traversing evidence led below, submitted as follows: "It is respectfully submitted that the Tribunal failed to give proper consideration to the repairs than had already been undertaken, and to the multiple continuing defects that still require repair. These would, in the alternative, amount to a major failure on the basis of the complete extent and nature of the repairs required to bring the vehicle up to the necessary compliance and safety standards." Consideration 1. In our view, the submissions made under this ground do not travel beyond the submissions previously made under grounds 1-3. Accordingly, for the same reasons, we reject ground 4. GROUND 5 1. Ground 5 is as follows: "The Tribunal made an error in law by not giving proper consideration to procedural fairness, prejudice and disadvantage, and facts that affected the outcome of the hearing. Paragraphs [3] and [4] of the Decision." 1. Paragraphs [3] and [4] of the Decision are as follows: "3 On 20 June 2018, the applicant had provided the documents he intended to rely on. The respondent had provided a folder of documents to the applicant prior to the hearing. They had been provided late due to the personal circumstances of Mr Lowe, the General Manager. The respondent has the opportunity to read the documents prior to hearing and there was no prejudice caused to the applicant by their lateness. Leave was granted for their consideration. The respondent's documents were not on the Tribunal file, however, a copy was provided to the Tribunal at the hearing. 4 On the day of hearing, the applicant sought to provide an affidavit from a mechanic who had inspected the vehicle and with whom Ms Bowen had conducted her own interview. The mechanic had also provided photos which were already in the documents provided. The applicant gave evidence that the affidavit was late because he was overseas and because he was waiting for the other side's documents. The author of the affidavit was only available for cross-examination by telephone. The respondent had received the document the day before and stated that had he of [sic] known about the report he would have provided independent evidence of his own. It was put to the applicant that in circumstances where the respondent was entitled to respond to the report that he may need to consider making an adjournment application. The respondent agreed that he would allow the applicant's expert to appear by telephone if the matter proceeded, but that they would like an opportunity to respond to the evidence with their own expert evidence. An adjournment was offered and the applicant did not want to adjourn the matter and agreed to proceed without the affidavit." 1. With respect to the late filing of documents by the Respondent, the Appellant stated that documents were received by way of express post on 2 August 2018. The Appellant noted that the Tribunal found that "there was no prejudice caused to the applicant by their lateness", but otherwise made no submission as to how it was alleged by the Appellant that receipt of the documents on 2 August 2018 in respect of the hearing which took place on 21 August 2018 could have prejudiced the Appellant. 2. Nextly, submissions were made in respect of an affidavit by Franco Bernardi-Munro, the mechanic referred to in paragraph [4] of the Decision. The Appellant did not dispute the finding of the Tribunal that "an adjournment was offered and the Applicant did not want to adjourn the matter and agreed to proceed without the affidavit". 3. In light of the Respondent wishing the opportunity to respond to the late evidence with her own expert evidence, the Tribunal finds that there was no procedural unfairness in permitting the expert evidence only to be admitted on condition that an adjournment was offered to the Respondent to permit it to have its own expert respond. Accordingly, the Appeal Panel is not satisfied there was any failure to afford the Appellant procedural fairness in respect of the attempt to lead late the evidence of Mr Bernardi-Munro. 4. We note that the Appellant in his written submissions sought leave to admit this evidence. In light of our conclusion that there was no procedural unfairness in the way in which the Tribunal below proceeded to hear the matter without this evidence, we see no point in admitting the affidavit before us on appeal. 5. Thirdly, the Appellant made the following submission: "The Tribunal was made aware by the appellant that he had mental health issues, stating that he was "not mentally fit to be like here", and that he was "mentally ill", and the Member then proceeded to deal with the appellant in a terse manner, demanding answers and interrupting when answers were given. The tone of the hearing was forceful and inappropriate." 1. We note that the Appellant did not refer the Panel to any specific sections of the transcript tendered that evidences the allegation that the Tribunal dealt with the Appellant in an inappropriate manner. This necessarily makes it difficult to deal with this submission. 2. The Tribunal dealt with the suggestion that the Appellant was "mentally ill" as follows, at [2] of the Decision: "The applicant stated that he was ill and was unable to represent himself at the hearing and that his psychologist suggested that he lacked capacity to represent himself. A psychologist report provided does not suggest he lacks capacity. The applicant stated that he struggled to communicate, but that he had capacity to make decisions with the help of his friend Ms Bowen. Ms Bowen and his partner Ms Morgan were allowed to assist him at the hearing and Ms Bowen made submissions on his behalf." 1. We have considered the transcript as a whole and note that Ms Bowen was in attendance at the hearing and did make submissions on behalf of the Appellant. Having read the transcript, we are not satisfied that the Tribunal dealt with the Appellant in an inappropriate manner. This is particularly so given that the Appellant below stated that he had capacity to make decisions with the help of his friend Ms Bowen and the contents of the psychologist report . 2. Accordingly, the Panel rejects this final ground of appeal. DISPOSITION 1. The Appeal Panel dismisses the Appeal. An order will be made accordingly. We note that the respondent, who was self-represented on appeal, made no application for costs. ORDER 1. Appeal 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: 14 August 2019