VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST		VCAT REFERENCE NO. C3966/2020
CATCHWORDS	
Applicant seeks full refund and damages in respect of a caravan he purchased from the Respondent – the Respondent denies that the caravan is faulty or defective to the extent that the Applicant is entitled to a full refund – sections 54, 56, 57, 260 and 237 of the Australian Consumer Law (Victoria)	

APPLICANT	Jason Humphrey	
RESPONDENT	Bellarine Caravans (wholesale) Pty Ltd (ACN: 120 357 011)	
WHERE HELD	Melbourne	
BEFORE	D. Kim, Member	
HEARING TYPE	Remote Hearing	
DATE OF HEARING	4 November 2020, 5 February 2021 and 9 February 2021	
DATE OF ORDER	8 July 2021	
CITATION	Humphrey v Bellarine Caravans (wholesale) Pty Ltd (Civil Claims) [2021] VCAT 739	

Order
1.	The parties shall attend a settlement at 12 noon on 31 August 2021 (Settlement), at the Respondent’s premises at 290a Princes Highway, Corio, VIC 3214, and at the Settlement the parties shall contemporaneously exchange:
a.	the caravan, being a Great Aussie Mayfair Caravan (Registration Z59953, VIN 6T9T21V86KAJR5134) and cash, a bank cheque or cleared funds in the sum of $66,845.00; and
b.	other equipment referred to in paragraph 3 below and cash, a bank cheque or cleared funds in the sum that is equivalent to the amounts stated in paragraph 3 below for the equipment that will be exchanged at Settlement.
2.	Provided that at Settlement the Applicant, Jason Humphrey, returns the caravan to the Respondent, Bellarine Caravans (wholesale) Pty Ltd (ACN 120 357 011), the Respondent must pay the Applicant the sum of $66,845.00, being a full refund of the purchase price of the caravan at Settlement.
3.	Provided that at Settlement, the Applicant, at his expense, provides the Respondent with:

a.	The Hayman & Reese weight distribution hitch that the Applicant purchased for towing the caravan in the sum of $600.00, the Respondent must pay the Applicant the sum of $600.00 at Settlement.
b.	The Hayman & Reese Towbar the Applicant purchased for the hitch in the sum of $850.00, the Respondent must pay the Applicant the sum of $850.00 at Settlement.
c.	The DO35 hitch lock that the Applicant purchased for the caravan in the sum of $129.95, the Respondent must pay the Applicant the sum of $129.95 at Settlement. 
4.	By 4pm on 20 August 2021, the Applicant must inform the Respondent as to which of the goods set out in paragraph 3 above will be exchanged at Settlement so as to give the Respondent notice of the amount of cash, bank cheque or cleared funds that the Respondent must provide to the Applicant at Settlement under paragraph 1(b) above.
5.	Upon the parties complying with paragraphs 1 to 3 above, the goods set out in those paragraphs which have been exchanged become the property of Bellarine Caravans.
6.	Having regard to s.115B(1) of the Victorian and Civil Administrative Act 1998 (Vic), and being satisfied that the Applicant has substantially succeeded in his claim, the Respondent must reimburse the Applicant the application fee of $487.30 and hearing fee of $1,088.70 (the total amount being $1,576.00) by 31 August 2021.

D. Kim
Member			

APPEARANCES:		
For Applicant	In person	
For Respondents	Mr Fowler, Counsel	

Reasons
baCkground – the parties and the claim
1	On 1 June 2019, the Applicant (Mr Humphrey) purchased a caravan from the Respondent (Bellarine Caravans) for the sum of $66,700.00 which was later increased to $66,845.00.
2	Mr Humphrey alleges that Bellarine Caravans sold him a faulty caravan. He alleges that the main defect with the caravan cannot be repaired. He seeks a full refund from Bellarine Caravans as well as reimbursement of some expenses he alleges that he incurred upon purchasing the caravan.
3	Bellarine Caravans denies that Mr Humphrey is entitled to a full refund. It alleges, among other things, that the major concern Mr Humphrey has, which are cracks in the ply panels, are due to wear and tear or by abnormal use of the caravan. It further alleges that some of the defects or faults in the caravan that may have existed in the past have been rectified and any remaining defects are superficial and cosmetic rather than structural. It remains willing to address any issues that Mr Humphrey is not satisfied with. Bellarine Caravans submits that if any amount of compensation is to be paid to Mr Humphrey that it ought to be of nominal value for any reduction in the value of the caravan.
4	Although the precise causes of action were not entirely clear in Mr Humphrey’s Amended Points of Claim, I am satisfied by Bellarine Caravan’s submissions in the hearing, Mr Humphrey’s outline of submissions emailed the Tribunal on 8 February 2021, and Mr Humphrey’s oral submissions on 9 February 2021, that both parties were aware that Mr Humphrey’s claim was based on sections 54, 56, 57, 259 and 260 of the Australian Consumer Law (Victoria) (ACL). Under those sections, Mr Humphrey will be entitled to a refund if he proves, by reference to the caravan that was supplied to him, that Bellarine Caravans:
(a)	did not comply with the consumer guarantee of acceptable quality (s.54 of the ACL);
(b)	did not supply a caravan which corresponded with the description which it gave him (s.56 of the ACL); or
(c)	did not supply a caravan which corresponded with the sample or demonstration model it showed him (s.57 of the ACL),
and that the deficiencies in the caravan were such that the caravan exhibited a major failure (s.260 of the ACL).
5	Under s.260, a major failure relevantly occurs when:
a.	the goods would have not been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure (s.260(a)); or
b.	the goods depart in one or more significant respects: if they were supplied by reference to a sample or demonstration model-from that sample or demonstration model (s.260(b)(ii)).
6	Under s.237 of the ACL, the Tribunal can make any order that it thinks appropriate against a party who has breached, among other things, ss.54, 56 or 57 of the ACL, if the aggrieved party has suffered or is likely to suffer loss or damage because of the other party’s conduct.
THE TRIBUNAL’S JURISDICTION
7	The parties did not dispute the Tribunal has jurisdiction to hear and determine this dispute. Notwithstanding this, and as the Tribunal derives its powers from statute, I am satisfied that the Tribunal has jurisdiction.
8	By virtue of s.8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (ACLFTA), the ACL forms part of the law of Victoria and the Tribunal has jurisdiction to hear and determine claims that arise under the ACL.
9	The guarantees under ss.54, 56 and 57 of the ACL apply to claimants who are within the ACL’s definition of a “consumer”.
10	Under s.3(1)(b) of the ACL, a person acquires goods as a “consumer” if the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption.
11	I am satisfied that based on the evidence, Mr Humphrey is a consumer under the ACL for the purposes of his claim under ss.54, 56 and 57.
12	I now turn to the parties’ evidence.
parties’ evidence
13	Other than his own testimony, Mr Humphrey called on his son, Harrison Humphrey, to give evidence. For Bellarine Caravans, Mr Roger Ward, General Manager, and Mr Ian Baker, salesperson, gave evidence.
Applicant’s evidence – Jason Humphrey
14	The following is a summary of Mr Humphrey’s evidence.
15	On 1 June 2019, Mr Humphrey entered into a contract with Bellarine Caravans at a caravan show in Bendigo to purchase the Great Aussie Mayfair Caravan (caravan). Prior to entering into the contract, Mr Humphrey and his family inspected a display model of the caravan. While looking at the display model, he and his wife did not notice any cracks in the internal ply panels.
16	Initially the agreed purchase price for the caravan was $66,700.00 but it was later increased to $66,845.00 due to various changes that Mr Humphrey wanted. For example, he and his wife requested that there be rounded edge strips on all overhead cupboards, which was noted on the written contract.
17	At the time of purchase, Mr Humphrey was asked what type of tow vehicle he would use to which he said that he had a Ford Ranger. He was told that the vehicle was okay to tow the caravan.
18	On 23 July 2019, Mr Humphrey received an email from Mr Mills of Bellarine Caravans asking a question regarding the rounded edge strips. Mr Humphrey replied by email later that day with a photograph showing the positions of where he wanted the rounded edges.
19	Approximately a week before the pickup date for the caravan, Mr Humphrey received a telephone call from Bellarine Caravans asking him if his tow vehicle was set up and ready to pick up the caravan. He was told that due to the weight of the caravan, he would need a weight distribution hitch as a safety measure. He was also told that the tow bar on his vehicle was not compatible with the hitch and a new tow bar was required. He gave evidence that at the time of ordering the caravan he was not told that he needed a new tow bar.
20	On 30 August 2019, Mr Humphrey had a new tow bar fitted to his vehicle to accommodate for the weight distribution hitch at a cost of $850.00. He produced a tax invoice from Toffolon Motors/Peninsula towbars dated 30 August 2019 for the supply and fitting of a tow bar for that amount.
21	On 31 August 2019, he and his family went to Bellarine Caravans to pick up the caravan. Upon inspecting the caravan, he and his family noticed the following:
a.	The rear camera had not been installed.
b.	The cupboard partition corner was not rounded as requested and cupboard edge was peeling off.
22	Mr Humphrey gave evidence that he was told by Bellarine Caravans that it was not possible to have rounded edges on the cupboards. He said that prior to 31 August 2019, Bellarine Caravans had not mentioned to him that his request for rounded edges could not be accommodated. He said if he and his wife had known at the time of purchase that round edges could not be done, they would not have proceeded with the purchase of the caravan.
23	However, rather than cancelling the contract, Mr Humphrey agreed to go ahead with the contract without having rounded edges and with Bellarine Caravans for Bellarine Caravans to keep the caravan so that the reversing camera could be fitted and for the strip that was loose to be glued back on the cupboard. I was provided with a copy of a tax invoice from Bellarine Caravans dated 31 August 2019 which relevantly stated the items to be rectified were “FIT REVERSING CAMERA NO WIRES TO BE SHOWING. GLUE BACK STRIP ON CUPBOARD SECOND FROM LEFT ABOVE KITCHEN SINK”.
24	Whilst at Bellarine Caravans, Mr Humphrey also purchased a weight distribution hitch.
25	Mr Humphrey returned to Bellarine Caravans on 7 September 2019 to pick up the caravan. Upon inspecting the caravan, he noticed that there was some water in the rear left tail lights which looked as though it was from condensation. When he told Mr Baker of this, Mr Baker said to him that this could be fixed when the caravan was next serviced. Mr Humphrey took the caravan with him.
26	On 5 October 2019, Mr Humphrey had a free caravan safety check done on the caravan at the Sandown Caravan and Camping Show. The person who did the check told him that the weight distribution bars were undersized which was a safety issue. I was provided with a copy of a one-page caravan safety inspection sheet addressed to Mr Humphrey but it failed to disclose who had actually undertaken the check.
27	On 22 October 2019, Mr Humphrey had a telephone and text message conversation with Mr Ward regarding the undersized bars. Mr Ward agreed to order the correct size. Subsequently, Bellarine Caravans replaced the undersized hitch with a larger size without seeking any further payments than what Mr Humphrey had paid for the original hitch.
28	About after two months of owning the caravan, Mr Humphrey noticed cracks appearing in some of the internal ply panels, the vinyl floor was loose and had lifted from the floor base, and the rear tail lights on both sides of the caravan had water inside them due to condensation.
29	On 1 November 2019, Mr Humphrey emailed Bellarine Caravans with a list of issues. The next day, Mr Ward telephoned Mr Humphrey stating that he would look into the repairs.
30	On 12 November 2019, Mr Humphrey email Bellarine Caravans stating that there was another crack in the caravan that he noticed and requested a timeframe of when the repairs would be made.
31	On 20 November 2019, Mr Humphrey telephone Bellarine Caravans and conveyed his disappointment at the lack of response. Later that day, he received a telephone call from Mr Dimmy Thambawita of the manufacturer, Great Aussie Caravans, who told Mr Humphrey that he had not received any photographs from Bellarine Caravans regarding the faults. After the call, Mr Humphrey sent photographs to Mr Thambawita. Mr Thambawita sent an email the following day stating that they could fix all the issues.
32	On 25 November 2019, Mr Humphrey dropped off the caravan to Great Aussie Caravans. At the time Mr Thambawita noticed a bow in the external wall and this was added as an item for repair. There was also a bolt from the kitchen sink tap which had fallen out that needed to be reinstalled.
33	On 16 December 2019, Mr Humphrey picked up the caravan from Great Aussie Caravans and was told that the cracks in the ply panels had not been repaired and they could be rectified in the new year.
34	On 21 December 2019, Mr Humphrey emailed Mr Thambawita and Mr Ward acknowledging that the floor and bow in the wall had been fixed and looked “great” but that he had found another crack in the ply panels (kitchen wall) and requested an extended warranty from Bellarine Caravans.
35	On 23 December 2019, Mr Humphrey purchased an anti-theft device for the caravan – a DO35 lock. I was provided with an invoice from Carac (Sales) Pty Ltd which listed the lock with a price of $129.95.
36	On 7 March 2020, Mr Humphrey emailed Mr Ward as to the edging around the front tunnel boot door missing, the toilet not being reinstalled against the wall after being first removed by the manufacturer, and a bolt for the kitchen tap having fallen out was missing, and there being more cracks in the panels. Mr Humphrey requested a refund.
37	On 15 March 2020, Mr Humphrey attended a caravan exhibition where he spoke to the owner of Bellarine Caravans, “Paul”, about his issues, who told him that he would oversee the issue and to return the caravan to Bellarine Caravans.
38	On 21 March 2021, Mr Humphrey returned the caravan to Bellarine Caravans. Mr Ward wrote down a list of repairs to be done while he and Mr Humphrey walked around the caravan. Subsequently, Mr Humphrey asked Bellarine Caravans if new panels would be placed over old panels to cover the cracks as he did not want this to occur. Mr Ward replied that would not happen.
39	On 4 June 2020, Mr Humphrey visited Bellarine Caravans to pick up the caravan. He was told that all faults had been repaired. Mr Humphrey noticed that new panels had been placed over existing cracked panels. He also noticed that the panel around the shower door, which had no joins previously and was one panel, now had joins in that separate panels had been joined together.
40	At this point, Mr Humphrey requested a full refund of the purchase price and he believed that the cracks could not be repaired correctly. Mr Ward told him that if they were to replace the panels as Mr Humphrey had requested then there would be issues with the structural integrity of the caravan.
41	Mr Humphrey then sent various email correspondence to Bellarine Caravans which included requests for a full refund and stating that he had found further faults with the caravan and cracks on the panels. One of his emails was sent on 13 June 2020 to Mr Ward where Mr Humphrey listed the following items of additional fault:
a.	The fridge tripped out the safety switch while on 240 volts.
b.	Water was leaking from the water tank inlet, under the couch. He gave evidence that after he filled the fresh water tanks that he noticed a leak on one of the water inlets of the two water tanks.
c.	Some of the screws in the cupboard doors were not tight against the hinge, causing the door not to sit back flush.
d.	Two of the overhead cupboard doors rubbed together when both doors were open.
e.	The corner strip on the front driver’s side was damaged and not installed correctly when it went back for repairs. It also had a dent and the silicon was not correctly applied.
f.	He had found another eight locations where there were cracks on the ply panels, including under the shower again.
42	On 15 June 2020, Mr Humphrey emailed Mr Ward again stating that he had found more cracks on the panels.
43	On 23 June 2020, Mr Ward sent Mr Humphrey an email requesting that he return the caravan to Bellarine Caravans.
44	On 27 June 2020, Mr Humphrey and his son, Harrison, dropped off the caravan to Bellarine Caravans. Mr Humphrey had a conversation with Mr Ward where Mr Ward said that most of the new caravans in the yard would have cracks in the ply panels. Mr Humphrey gave evidence that at no time prior to this visit had Bellarine Caravans informed of this.
45	On 1 July 2020, Mr Humphrey received an email from Mr Ward stating that all correspondence in future was to be communicated through Bellarine Caravans’ solicitors.
46	On 3 July 2020, Mr Humphrey sent an email to Bellarine Caravans’ solicitors requesting a list of all repairs that had been undertaken on the caravan. Mr Humphrey did not receive any documentation from the solicitors or Bellarine Caravans as to any inspections or work done on the caravan.
47	On 4 July 2020, Mr Humphrey and Harry returned to Bellarine Caravans to pick up the caravan. He noticed that some minor repairs had been done without his agreement. During this visit, Mr Ward told him that the caravans were made of wood and as wood is a natural product that moves, shrinks and bends, this was the cause of the cracks in the ply panels.
48	Throughout the email correspondence that Mr Humphrey had with Bellarine Caravans and Great Aussie Caravans, Mr Humphrey sent them numerous photographs of the alleged faults in the caravan.
49	Mr Humphrey gave evidence that the following issues remain with the caravan:
a.	The front outside corner edge strip is damaged and not sealed correctly and the edge strip around the inside of the front tunnel boot door has been poorly installed.
b.	Water is leaking from the water tank inlet under the couch.
c.	A bolt from the kitchen sink tap is missing.
d.	Some wires he believed were exposed that posed a safety issue.
e.	The fridge trips out on 240 volts causing the safety switch to cut out.
f.	Two of the overhead doors rub together when opened.
g.	The edge strip inside near the couch has been poorly repaired.
h.	A cupboard door hinge in the bedroom is rusted.
i.	A stain from the sliding door stop has caused the vinyl floor to stain.
j.	Additional ply panels have been installed over existing panels.
k.	After repairs to the bathroom, the wall has a rough texture.
l.	There are at least 13 different ply panels which have cracks.
50	Mr Humphrey gave evidence that whilst there were various issues with the caravan, his main concern were the cracks on the panels.
51	He also gave evidence that since purchasing the caravan, he and his family had taken the caravan on three trips, being to Daylesford in November 2019, then to Hamilton, and Halls Gap on the Queen’s Birthday long weekend (being 6 to 8 June 2020).
52	Mr Humphrey gave evidence that the repairs of the cracks on the panels did not reflect the original condition of the caravan or the display model. He also said that due to the multiple repairs and his dissatisfaction of the nature of the repairs that he has lost all confidence that the caravan would provide the safety and reliability for him and his family.
Applicant’s evidence – Harrison Humphrey
53	Harrison Humphrey’s evidence was brief. To the extent that it was relevant, Harrison, who said he was 15 years old, gave evidence that on one occasion when he went with his father to collect the caravan, Mr Ward spoke to them about the cracks in the panels.
54	Mr Ward said to them that the cracks were going to happen to most caravans as the panels were made of wood and they would bend. Mr Ward then walked off and he and his father took the caravan home.
55	At least a month after this incident, he and his father were looking for cracks on the panels. He noticed quite a few cracks in the panelling. The cracks were in the kitchen, back wall, and in the bedroom. He said that on the majority of the walls there was at least one crack. He also noticed that there was rust on the bedroom hinges and the cupboards would hit one another.
56	As he was looking under a gap his father told him to take his hand away. This was because his father had seen that the socket and casing had not been covered.
Respondent’s evidence – Roger Ward
57	Mr Ward gave evidence that his communications with Mr Humphrey came after Mr Humphrey had purchased the caravan. His initial conversation with Mr Humphrey was when he went through with Mr Humphrey and his wife the colours for the caravan and several modifications to the model that they requested after the Bendigo caravan show. The modifications included:
a.	the installation of a positive pressure vent on the roof;
b.	a heavier bumper bar;
c.	an upgrade to the suspension, wheels and tyres;
d.	steps put on the floor;
e.	different style of toilet to the display model, which changed slightly the format; 
f.	a bed conversion;
g.	changes to the angle of the cupboards and benchtop;
h.	removal of corner cupboards; and
i.	rounded edges for cupboards.
58	Mr Ward said that some of the modifications that Mr Humphrey and his wife had requested were at the Bendigo show while others were after when he and his family visited Bellarine Caravans’ shop. He said that all modifications had been done by the manufacturer, Great Aussie Caravans.
59	Mr Ward gave evidence that when going through the above requested modifications, Mr Humphrey asked him whether they could be done, to which he replied, “Yes”. Mr Ward said that he said yes because at that point in time he was not sure whether it could be done. He said that he usually said yes if he was sure something could be done or if he was not sure if it could.
60	Mr Ward gave evidence that upon taking Mr Humphrey’s requests, Bellarine Caravans drew up a plan of the caravan which Mr Humphrey approved, which was then sent to the manufacturer.
61	Subsequently, and although Mr Baker gave evidence and it was hearsay, Mr Ward said that Great Aussie Caravans contacted Mr Baker and informed Mr Baker that they could not do round edges for the cupboards.
62	Mr Baker told Mr Ward that Mr Baker had telephoned Mrs Humphrey to tell her what the manufacturer had told him. Although she was not happy, Mr Baker said that she told him to go ahead with the modifying the caravan without the edges being rounded.
63	After Great Aussie Caravans finished customising the caravan, it was sent to Bellarine Caravans. Bellarine Caravans took steps to get the caravan ready, such as running the water tanks.
64	Mr Ward said at the time of the pickup, Mr Humphrey raised the issue with the reversing camera not being installed and the back strip in the kitchen area needing to be glued on.
65	Mr Ward agreed that the arrangement with Mr Humphrey was that he would buy the hitch and Bellarine Caravans would fit it.
66	In November 2019, Mr Ward heard from Mr Humphrey that there were issues with the caravan that needed to be sorted out. In response, Mr Ward contacted Great Aussie Caravans for them to get in touch with Mr Humphrey. Upon being contacted by Mr Humphrey that he had not heard from Great Aussie Caravans, Mr Ward again contacted Great Aussie Caravans for them to contact Mr Humphrey.
67	The next thing Mr Ward heard from Mr Humphrey was that Mr Humphrey had taken the caravan to Great Aussie Caravans directly but they had not fixed everything that needed to be addressed.
68	Then in early March 2020, Mr Ward received a telephone call from the owner, Paul, who sounded angry and who told him that Mr Humphrey had told him that Bellarine Caravans had not contacted him regarding issues with the caravan. It was later discovered that Bellarine Caravans’ email account and server had been hacked and for a period of time Bellarine Caravans were not receiving emails from customers, including the emails that Mr Humphrey had sent. Bellarine Caravans provided documents in respect of the hacking.
69	Mr Ward gave evidence that during his conversation with Paul, he told Paul that he agreed that some of items of repair have not been done. He said that Paul told him that some of the cracks were hard to see. Mr Ward said to Paul that he agreed and that the cracks were not structural issues and that they were not big or gaping. But he told Paul that the factory had not addressed all the cracks.
70	Subsequently, on 21 March 2010 Mr Humphrey brought the caravan back to Bellarine Caravans where Mr Ward and Mr Humphrey walked around the van and Mr Humphrey had a list of complaints and said that some works had not been completed by Great Aussie Caravans. Mr Ward prepared his own list of works to be done. Items that were identified included:
a.	Multiple cracks on ply panels throughout the caravan, which Mr Ward considered were cosmetic.
b.	A deep crack in the shower door, which Mr Ward considered was cosmetic.
c.	The net at the back of the caravan was screwed but the screws that not been screwed all the way and this was done by Great Aussie Caravans.
d.	The left-hand side tail light had condensation so that there was a bit of water at the bottom.
e.	The filler hose had leaked water.
f.	Toilet was not flush.
g.	Edge strip had come off.
h.	The J mould had a lot of silicon around it and there was a dent, and this was worked done by Great Aussie Caravans.
i.	The kitchen tap bolt had come loose.
71	Mr Ward told Mr Humphrey that whilst Bellarine Caravans could fix some of the items, the bigger problems had to be done by Great Aussie Caravans.
72	Mr Ward organised for Great Aussie Caravans to do work on the caravan but there were delays by the manufacture in completing the works. He said that Bellarine Caravans had the caravan for about a month or 3 and a half weeks before it went to the manufacturer. Mr Ward sent the caravan to the manufacturer with a job ticket of all the items that needed to be addressed.
73	When the manufacturer returned the caravan to Bellarine Caravans, Mr Ward noticed that not all of the items listed on the job ticket had been done. Whilst the manufacturer had addressed a lot of the cracks, including the one underneath the shower door, the manufacturer had failed to address issues such as with the toilet not being flush against the wall, issues with the silicon and the kitchen tap. When Mr Ward raised the problems with the manufacturer, the manufacturer insisted that they had undertaken all the works required even though only some of the works on the job list had been completed. Subsequent to the manufacturer’s response, Bellarine Caravans attempted to address some of the outstanding items but it was not able to address a couple of items, one of which was the issue with the J mould.
74	Upon Mr Humphrey looking at the repairs that had been done to his caravan, he expressed to Mr Ward that he was not happy with the repairs. For example, Great Aussie Caravans had cut the bottom of the ply panel which was in the bathroom and placed new ply panelling such that the entire wall was not a single panel anymore. Mr Humphrey wanted the wall to look the way it originally looked and wanted to have the whole panel wall to be replaced. Mr Ward told Mr Humphrey that if they took out the whole panel wall then that would affect the structural integrity of the caravan. He said that the manufacturer considered it as a cosmetic issue and that cosmetic cracks did occur from time to time.
75	It was not clear to me whether Mr Ward explained to Mr Humphrey at the time but in his evidence, Mr Ward said that a caravan is built inside out. A caravan is not like a house which requires a frame to be first set up. He said that if they were to rip a wall out it would cause a lot of damage. He likened it to “cutting your arm off when a band aid could fix the problem”. At another point in his evidence, he said that the ply was 3.2mm thick with a white veneer, which sits behind meranti timber which is the frame of the caravan. In between the ply and the timber were wiring and insulation. He said that meranti timber was tough. Ply although tough could crack. Veneers could crack. Cracking of ply and veneers were only cosmetic and not structural. He said that although some of the cracks were in line of sight, a lot of them were not. He also said that the cracks were due to wear and tear, especially when caravans go on rough conditions. He also said that it was an “industry thing” to overdo it with silicon on the J mould. He said that to prevent water leakage that one would usually “silicon the hell out of it” and that he would prefer excess silicon to not enough silicon. Whilst Mr Ward admitted that there was a dent on the J mould which was about 5cm, he said that the dent did not pose a structural problem. 
76	Under cross-examination, Mr Ward said that Bellarine Caravans should not be responsible for something done by a third party and all Bellarine Caravans did was to refer Mr Humphrey to the manufacturer. Mr Ward also said that despite requests, he did not receive any paperwork from the manufacturer of the work they did.
77	Mr Ward also did not recall saying to Mr Humphrey that panels would be put in front of the old panel. He said Bellarine Caravans was ready and willing to undertake repairs. But there were some repairs that Bellarine Caravans was unable to do as it did not have the equipment but “anything we can do, we will try to do”. He said that cosmetic cracks were something that Bellarine Caravans could not rectify. To fix the cracks on the panel, he said a significant portion of the caravan would need to be pulled apart.
78	Mr Ward gave evidence that Mr Humphrey first raised issues with there being cracks after Mr Humphrey had taken the caravan for a trip.
79	When Mr Humphrey asked him whether having exposed wires was unsafe, Mr Ward replied that he did not think that it was unsafe. When Mr Humphrey put to Mr Ward that there should be a cover plate on the back and there was no cover plate, he said that he was not an electrician and could not comment. He said that not putting a cover plate was an industry standard thing.
Respondent’s evidence – Ian Baker
80	Mr Baker, salesperson for Bellarine Caravans, recalled seeing Mr Humphrey and his wife at Bellarine Caravans’ shop. They were seeking a caravan and Mr Baker told them that they would better value if they went to the caravan show in Bendigo and ordered the caravan from there.
81	Mr Baker recalled that Mr Humphrey and his wife had wanted the design of the caravan to be different from the usual design, such as wanting a rear club lounge.
82	Mr Baker met Mr Humphrey and his wife at the show and he went through the pricing with them. He prepared the paperwork and noted everything that they wanted in the caravan. He said that subsequently, Mr Humphrey and his wife came to Bellarine Caravans’ shop but at that time they spoke to Mr Ward.
83	Mr Baker said that sometime after he had a telephone discussion with Mrs Humphrey and told her that despite their request, it was not possible to have rounded edges. He did so because the manufacturer had said they could not do rounded edges. He said that Mrs Humphrey was not happy that there could not be rounded edges but told him that they would go ahead with preparing the caravan. He said that he wrote a file note of this conversation, which was tendered as an exhibit.
84	Under cross-examination, Mr Baker gave evidence that:
a.	The brochure that Mr Humphrey obtained about the caravan did not mention anything about cracks appearing on the ply panels.
b.	The cracks on the ply wall should not have been there on the caravan.
c.	If there are cracks on the ply wall then they are defects.
d.	On odd occasions when the ply was “not good” you would get cracks on the internal ply walls but that was “not the norm, otherwise we wouldn’t use it”.
e.	At the time that he sold the caravan to Mr Humphrey he was not aware that were any cracks.
the tribunal’s findings as to the evidence
85	Although one may consider some of Mr Humphrey’s complaints about the caravan as being not as severe or serious as he may have considered them to be, overall, I found him to a credible witness. It was clear that he had a high degree of attention to detail when inspecting the caravan and had kept thorough records of his dealings with Bellarine Caravans and the manufacturer. He also provided numerous photographs to demonstrate the issues he complained about, which he took at different points in time.
86	Mr Humphrey presented no expert evidence and he gave no evidence of any expertise or knowledge he had in respect of caravans, the safety standards for electrical wiring or whether or not the cracks that appeared in the caravan posed any structural integrity or safety issues. Whilst this means that I am not satisfied that Mr Humphrey has established that exposed wires or cracks in the panelling pose any structural issues, for the reasons that I have set out below, the absence of such expert evidence is not terminal to Mr Humphrey’s case. For example, one does not need expert evidence to establish that exposed electrical wiring poses a safety issue.
87	In terms of Harrison’s evidence, although I found him to be a truthful witness, his evidence, to the extent relevant, was consistent with Mr Humphrey’s and Mr Ward’s evidence and did not add much, if at all, to the evidence presented by Mr Humphrey.
88	In respect of Mr Ward, other than his opinion as to whether an item of complaint was a defect or not, and as to the nature of panels, his recollection of his communication with Mr Humphrey, although not as detailed and vivid, were by in large consistent with Mr Humphrey’s evidence. In respect of the opinions he expressed, whilst Mr Ward is an employee of Bellarine Caravans, he did not give any evidence that he had any qualifications or particular expertise in the areas he gave his opinion as such in electrical wiring, and the properties of ply panels such that I am not satisfied that he gave his opinion as an expert.
89	In relation to Mr Baker, his evidence was fairly brief and I found him to be a credible witness. Like Mr Ward, Mr Baker expressed his opinion as to whether or not cracks in ply panels were defects. Other than being a salesperson, he did not give any evidence as to any expertise he had in providing his opinion, which contradicted Mr Ward’s opinion when it came to the panels.
90	Upon considering the evidence, I find that:
a.	At no time prior to Mr Ward expressing his view to Mr Humphrey that it was expected that ply panels would crack that Mr Humphrey was informed by Bellarine Caravans that the panels would crack.
b.	Had Bellarine Caravans informed Mr Humphrey of the likelihood or possibility of cracks appearing in the panelling, Mr Humphrey would not have gone ahead with the purchase of the caravan. Mr Humphrey came across to me as a person who, at least in terms of this issue, paid close and meticulous attention to detail and was very clear about what he wanted and did not want in a caravan. I note, of course, that section 260(a) of the ACL, in defining major failure, refers to a “reasonable consumer fully acquainted with the nature and extent of the failure” deciding not to acquire the goods, as distinct from the particular applicant. I am satisfied that a reasonable consumer, like Mr Humphrey, would not have wanted the caravan.
c.	Cracks started appearing in the panelling approximately two months after Mr Humphrey took the caravan. Whilst Mr Humphrey did take the caravan on trips prior to the cracks appearing, those trips were on major highways and I am not satisfied that they were “off road”, and given how soon the cracks started to appear, the number of cracks and the multiple locations in the caravan that the cracks have appeared, I am not satisfied that the cracks were caused by any misuse or abnormal use of the caravan. Indeed, Mr Ward’s evidence was that it was normal for cracks to appear, and in effect, it was a consequence of wear and tear. It is interesting to note that Mr Ward did not give evidence that he discloses this opinion to potential purchasers of caravans.
d.	From the initial date when Mr Humphrey was to pick up the caravan, the caravan had faults. This is evidenced by the tax invoice from Bellarine Caravan dated 31 August 2019 which states that the reversing camera had not been installed and a strip needed to be glued on.
e.	Throughout Mr Humphrey’s ownership of the caravan, there have been a number of items that both the manufacturer and Bellarine Caravans have indicated to Mr Humphrey that they would fix which have not been fixed. This is acknowledged by Bellarine Caravans.
f.	In respect of the issue of the rounded edges, I am satisfied that prior to the first date for the pick-up of the caravan, Mrs Humphrey was informed by Bellarine Caravans that there could not be rounded edges and she accepted this on Mr Humphrey’s behalf. In any event, despite the issue, Mr Humphrey continued with the contract and took possession of the caravan.
g.	The following issues remain outstanding:
i.	The fridge trips out the safety switch while on 240 volts.
ii.	Water leaking from the water tank inlet, under the couch. Based on what I could see from the photographs, this issue seems to be minor.
iii.	Some of the screws in the cupboard doors are not tight against the hinge, causing the door not to sit back flush.
iv.	Two of the overhead cupboard doors rub together when both doors were open. The photographs of the cupboard show that the doors appear to be slightly misaligned as the gap between the doors becomes narrower towards the bottom end. Another photograph shows the doors being very close to each when opened.
v.	The corner strip on the front driver’s side has a dent on it which I am satisfied was most probably caused when the caravan was either at Bellarine Caravans or Great Aussie Caravans when the caravan was dropped off for repairs.
vi.	The edge strip around the inside of the front tunnel boot door has repaired such that there is excess silicon on some parts of the edges.
vii.	There are multiple areas inside of the caravan where the ply panels have cracks. Based on the photographs, some of the cracks appear to be narrow and of a few centimetres whereas some appear to be clearly visible and run along for a few inches. I am satisfied that cracks have been appearing throughout the time Mr Humphrey has had the caravan.
h.	There have only been a few times that Mr Humphrey has taken the caravan out for trips. Bellarine Caravans presented no expert evidence that the caravan was mishandled or was not used in a manner that it was intended to be used and such use was the cause or had materially contributed to the issues with the caravan.
i.	There have been at least three instances when Mr Humphrey has returned the caravan to Bellarine Caravans and the manufacturer to have issues fixed.
did bellarine caravans breach section 54 of the acl?
91	Section 54 of the ACL relevantly imposes a statutory guarantee on suppliers who provide goods to a consumer in trade or commerce that the goods supplied are of acceptable quality.
92	Under section 54(2) of the ACL, goods are considered of acceptable quality if:
a	they are fit for the purpose for which they are commonly supplied;
b	free from defects;
c	of acceptable appearance and finish;
d	safe; and
e	durable.
93	If the goods in question do not meet each and every criterion under section 54(2), the law deems the goods not to be of acceptable quality.
94	Section 54(3) of the ACL contains a list of factors to be considered in determining whether goods are of acceptable quality, which relevantly are: the nature of goods; the price of the goods; any representation made about the goods by the supplier; and any other relevant circumstances relating to the supply of the goods. This section allows the Tribunal to see the goods in their particular context – the consumer guarantees apply to used and inexpensive goods, and defects might be acceptable in a cheap old caravan. The same defects could be completely unacceptable in a new caravan purchased for some $66,845.00.
95	I am satisfied that Bellarine Caravans has breached s.54 of the ACL as it has not supplied Mr Humphrey with a caravan that is of acceptable quality. This is because the caravan is not free from defects and is not of acceptable appearance and finish, given the defects that I have outlined above.
96	In respect of defects, the evidence demonstrates that from the initial date when Mr Humphrey was to pick up the caravan and Bellarine Caravans had indicated to him that he could pick up the caravan, the caravan had issues. Bellarine Caravans does not dispute there are items that require fixing. Whether or not, as Bellarine Caravans submits, it has been the manufacturer who has failed to rectify the issues is irrelevant to Mr Humphrey’s rights. The fact is, Mr Humphrey purchased the caravan from Bellarine Caravans. The contract in question was between him and Bellarine Caravans. The consumer guarantees under the ACL were owed by Bellarine Caravans, as the supplier of the caravan, to Mr Humphrey. Mr Humphrey did not need to directly claim against the manufacturer under s.272 of the ACL. Bellarine Caravans chose not to seek indemnity from the manufacturer in the proceeding under s.274 of the ACL.
97	In respect of the cracks on the ply panels, I am satisfied that the cracks are defects for the following reasons:
a.	When considering the factors under section 54(3) of the ACL, I am not satisfied that it was acceptable that panels started to crack on multiple areas approximately just two months after Mr Humphrey purchased the caravan. Mr Humphrey spent a considerable amount of money for a brand-new caravan.
b.	There is no evidence to suggest that at any time prior to the purchase that Bellarine Caravans informed Mr Humphrey that cracks would occur and that they were merely wear and tear or expected. It was not until Mr Ward told Mr Humphrey months after the purchase that Mr Humphrey was told that cracks were to be expected and were not out of the ordinary. Prior to Mr Ward’s comments, both the manufacturer and Bellarine Caravan took on the responsibility to “fix” the cracks. Further, there was no evidence presented that the manufacturer, at any time, had indicated to Bellarine Caravans or Mr Humphrey that the cracks were not defects and were as Mr Ward claimed.
c.	Mr Ward and Mr Baker gave contradicting evidence of whether or not cracks were defects. In any event, both of them gave what I consider lay opinion and accordingly, there is little, if any, probative value to their opinions. It follows that I have given little weight to Mr Ward’s opinion that the cracks are not defects and are as a result of wear and tear. Bellarine Caravans produced no evidence substantiating Mr Ward’s oral evidence that it was normal for cracks to appear on the ply panels as they had in the caravan. For example, I was not provided with any photographs of the display model or any other caravans at Bellarine’s Caravans premises as a comparison, any publications from the manufacturer or any third party about the occurrence of cracks.
d.	Other than during the hearing, at no time did Bellarine Caravans allege that the cracks were due to any misuse or abnormal use by Mr Humphreys. Such contention is contradictory to Mr Ward’s explanation of the cracks as being a natural occurrence. Had the cracks appeared well after a couple of months of Mr Humphrey having the caravan or only in one or a couple of isolated areas, I may have considered Mr Ward’s explanation as a plausible explanation as to why there were multiple cracks on a number of panels. However, this was not the case.
98	In respect of the caravan not being of acceptable appearance and finish, the evidence demonstrates that:
a.	The caravan had a number of items, some of which were of minor inconvenience or issue, which nevertheless resulted in the caravan being not of acceptable appearance and finish. Once again, Mr Humphrey paid for and was expecting a brand-new caravan, with all the finishes completed. That is not what he was given. What he got was, at the least, a caravan which, among other things, had a dent in one section, misaligned cupboards that were rubbing, strips that been attached poorly, and cracks on the panels that appeared shortly after he took possession. Once again, it did not matter whether all of the poor workmanship had been undertaken by the manufacturer. It was Bellarine Caravans who was obliged to supply Mr Humphrey with a caravan that had an acceptable appearance and finish.
b.	Bellarine Caravans does not dispute there are cracks in the panels. Both parties do not dispute that additional panels have been installed to cover up some of the original panels which had cracks. I do not consider a caravan that has panels patched up with new panels on top and where there was only one panel having now two different pieces with a join as being of acceptable appearance and finish for the price that Mr Humphrey paid and for what he was supposed to get. Indeed, some of the work on the panels were done in areas which are clearly visible and unobscured by objects or location.
99	Based on the above considerations, I am satisfied that the caravan was not free from defects and was not of acceptable appearance and finish. Accordingly, the caravan is not of acceptable quality and Bellarine Caravans has breached s.54 of the ACL.
100	Further, despite Bellarine Caravan’s denial, I am satisfied that Bellarine Caravan’s breach of s.54 of the ACL was a major failure under s.260(a) of the ACL in that, had a reasonable consumer in Mr Humphrey’s situation been fully acquainted with the nature and extent of the failures, the consumer would not have bought the caravan.
101	The premise of Bellarine Caravans’ denial appears to be the argument that the items to be repaired are minor issues and they are not structural but cosmetic, and therefore any issues with the caravan do not constitute a “major failure” under the ACL.
102	I do not accept Bellarine Caravans’ argument. Even if Bellarine Caravans is correct and the faults are only minor or cosmetic, that in and of itself does not mean that there is no major failure as defined under section 260 of the ACL.
103	The definition of what constitutes a major failure as under s.260 of the ACL does not mention anything about major defects or that the fault has to be more than cosmetic. In fact, there is no reference to the word, “defect”, or that one should impute a meaning that major failure equates to major defect. In my view, had Parliament intended such a meaning, they would have expressly included the reference to defects. Rather, the contrary intention is true given the various situations where a breach may constitute a major failure under s.260, even where there is no issue about whether or not the item in question is defective. Frankly, apart perhaps from industrial equipment whose practical use is more important to the owner than its aesthetic appearance, the cosmetic appearance of most goods that consumers would purchase in Australia is of the utmost importance to the consideration of whether the goods are defective. A reasonable consumer might choose to purchase a scratched or dented washing machine at a discount price because the supplier had provided the discount due to the imperfections. That same consumer would hardly be satisfied, however, on being told by a supplier that a sofa, wall panelling, television or the like which was purchased new at the normal retail price (or even on sale) was ‘structurally sound’ and that therefore the consumer should overlook the unsightly cracks and scratches on the item.
104	Of course, it stands to reason that a major defect in a product, in many, if not in most circumstances, would constitute a major failure. However, it is not true that there needs to be a major defect for there to be a major failure, as clearly demonstrated by the words of s.260 of the ACL.
105	Although one might view some of Mr Humphrey’s issues as being minor issues which can be easily remedied, his main complaint, being the cracks in the ply panels, was neither trivial nor pedantic. In my view, the fact that Bellarine Caravans had attempted to have the various cracks remedied was not merely a gesture of goodwill to appease a difficult customer who had raised a non-issue.
106	Further, when considered individually, leaving aside the issue with the panels, one may consider the various issues with the caravan to be minor and of minimal inconvenience such that none of the defects amount to a major failure. However, in combination, I am satisfied that had a reasonable person in Mr Humphrey’s position knowing at the time of purchasing the caravan that there would be such faults, would not have purchased the caravan.
did bellarine caravans breach section 56 of the acl?
107	Section 56 of the ACL relevantly requires suppliers to guarantee that goods correspond with their description.
108	I am not satisfied that Bellarine Caravans has breached s.56 as:
a.	Bellarine Caravans provided Mr Humphrey with the correct model caravan.
b.	I am satisfied that prior to the first date for the pick-up of the caravan, Mrs Humphrey was informed by Bellarine Caravans that there could not be rounded edges and she accepted this on Mr Humphrey’s behalf.
c.	The various issues that Mr Humphrey has raised in respect of the caravan is not that Bellarine Caravans provided him with the wrong caravan but that the quality of workmanship was poor or items were faulty.
109	I therefore dismiss Mr Humphrey’s claim under s.56.
did bellarine caravans breach section 57 of the acl?
110	Section 57 of the ACL relevantly requires a supplier who supplies goods to a consumer, in trade or commerce, by reference to a sample or demonstration model to guarantee that the goods correspond with the sample or demonstration model in quality, state or condition and if the goods are supplied by reference to a sample – the consumer to have reasonable opportunity to compare the goods with the sample and the goods are free from any defect that would not be apparent on reasonable examination of the sample or demonstration model; and would cause the goods not to be of acceptable quality.
111	I am satisfied that Bellarine Caravans has breached s.57 for the following reasons:
a.	Whilst the caravan that Mr Humphrey purchased was not exactly the same as the display model that he saw (given the modifications that he requested), the caravan did not correspond with the display model in quality, state or condition due to the various defects which I have identified in these Reasons. The caravan did not have to be the exact copy of the display model for s.57 to apply. This is evidenced by the words “by reference to” under s.57.
b.	The caravan was not free from defects and was not of acceptable quality as I have found.
112	I am further satisfied that Bellarine Caravans’ breach of s.57 constitutes a major failure within the meaning of s.260(b)(ii) of the ACL.
what remedy is mr humphrey entiteld to?
113	The scheme of ss.54, 56, 57, 259 and 260 of the ACL is that where a supplier fails to meet the consumer guarantees, and the item purchased by the consumer has sustained a major failure, the consumer can reject the goods and obtain a refund. Ownership of the goods returns to the supplier. Additionally, under s.237 of the ACL, the consumer can be awarded compensation or consequential damages. I consider it appropriate to award damages to Mr Humphrey. Mr Humphrey is entitled to a full refund of the purchase price, being $66,845.00.
114	In respect of other items for compensation sought by Mr Humphrey, provided that Mr Humphrey provides Bellarine Caravans with the following items, at his expense, Mr Humphrey is entitled to be compensated by Bellarine Caravans for:
a.	The Hayman & Reese weight distribution hitch that he purchased for towing the caravan in the sum of $600.00.
b.	The Hayman & Reese Towbar required for the hitch in the sum of $850.00.
c.	The DO35 hitch lock in the sum of $129.95.
115	If Mr Humphrey wishes to keep any of the items that I have mentioned in the preceding paragraph or fails to provide them to Bellarine Caravan within the timeframe that I will order, it follows that Mr Humphrey should not be compensated for purchasing those items. Mr Humphrey should also provide the items at his expense (for example to remove the tow bar from his vehicle) as he has made use of the items and he has taken the caravan out on trips, albeit not to the extent that he had sought.
116	I am also satisfied that having regard to s.115B(1) of the Victorian and Civil Administrative Act 1998 (Vic), and being satisfied that Mr Humphrey has substantially succeeded in his claim, Bellarine Caravans must reimburse Mr Humphrey the application fee of $487.30 and hearing fee of $1,088.70 (the total amount being $1,576.00) that he has paid to the Tribunal.
117	Finally, given that Mr Humphrey was a self-represented litigant and he did not call on any expert evidence, I otherwise make no order as to costs.
118	I will accordingly make an order which reflects the reasons set out above.

D. Kim
Member