New caravans and campers in Australia are being registered and trundled out onto the road in ever increasing numbers in pursuit of the Australian nomadic dream. You don’t need grey hair to do it. Heads of all colours are chasing their horizons. Not since the 1970s has Australia been so enamoured with caravans, and they are being sold across Australia in near record numbers. Amongst all those caravans, it’s not really a surprise that some of them come off production lines with faults. Mostly these are minor, but on some occasions, they are more significant. Big enough to put a trip on hold or even compromise safety.
Most of us understand that minor issues can happen. Most dealers will be happy to fix a leaking tap washer, a faulty tail light or a loose mudflap. Many owners would simply fix it themselves. But faulty brakes, vibration, major appliances not working, roof leaking – these are major problems, and likely to delay your any-coloured nomad dream.
The Australian Competition and Consumer Commission (ACCC) states, “A product or good has a major problem when: it has a problem that would have stopped someone from buying it if they’d known about it; it is unsafe; it is significantly different from the sample or description; it doesn’t do what the business said it would, or what you asked for, and can’t easily be fixed.”
If you find yourself in this position, Australian Consumer Law (ACL) provides two forms of protection: consumer guarantees and warranties.
A consumer guarantee is a promise that the goods “must be of acceptable quality”, specifically that it’s safe, will last the distance, have no faults, look good and do everything it should. The guarantee applies to products that are either under $40,000 or over $40,000 but normally used for personal or household use, and a caravan or motorhome fits right into those definitions. If it doesn’t live up to those expectations, the ACCC says that you, the consumer, has a right to repair, replacement or refund and compensation for damages and loss.
Warranties fall into two categories: common warranties and manufacturer’s warranties. A common warranty is where a business makes extra (over the consumer guarantee) “promises or representations verbally or in writing generally about the quality or standard of a good.” These often relate to condition and performance, durability and even the availability of after-sales service or replacement parts.
A manufacturer’s warranty is a further promise that if the goods (all or part) are no good, they will be repaired or replaced, resupplied or even that the business will provide compensation to the consumer. Between the mechanisms of the Australian Consumer Law and warranties, Australian consumers are well protected against defective products.
But if you are the unlucky consumer who must seek that protection, where do you start? The best place is your kitchen table. Get the laptop out and write a formal letter to the business from whom you purchased your caravan or camper.
List the defects and include any supporting data, such as photos. State the remedy that you are seeking – repair, replacement or refund. This course of action is universally recommended by caravan industry bodies, state consumer protection agencies, and the ACCC. It is seen as a critical first step to negotiating a remedy. “The retailer who sold you the product or service cannot refuse to help you by sending you to the manufacturer or importer,” says the ACCC. In a perfect world, that’s it! The dealer fixes the problems, the van is ‘as new’ and the next time we see you you’ve got a tan and a collection of corny tea-towels from around Australia.
But what if the dealer doesn’t see it your way, and denies the existence or extent of the defects?
An independent inspection should be next. Seek an independent repairer or qualified industry expert and get a written report. The Caravan Council of Australia may be able to assist with an inspection. Its charter states: “The Caravan Council of Australia, registered with ASIC, has been formed to assist the local Recreational Vehicle (RV) industry. It will provide professional independent services to all RV clients.” The CCA website advises: “If an owner has a technical or quality issue with their RV, the CCA will, for a modest fee, assist by engaging a professional qualified engineer to inspect the vehicle and prepare a report.”
Confronted with independent evidence, the dealer may revise his position. If not, the next recourse is the consumer protection agency in your state. A spokesperson for the NSW Dept of Fair Trading advises:
“Under the Australian Consumer Law (ACL), goods and services come with automatic guarantees including that goods must be of acceptable quality, must match any descriptions or samples, be free from any defects and be fit for purpose. Goods must also be supplied within a reasonable time, if no timeframe is specified.”
Fair Trading’s advice to customers who are dissatisfied with a product is to contact the trader and try to resolve the matter in the first instance. Customers should make sure that they talk to the appropriate person in the business and explain clearly and logically the problems they have encountered.
Customers should also let the trader know about the outcome that they are seeking and are encouraged to set a reasonable timeframe for this to occur. Customers who are unable to resolve their issues with the trader are advised to lodge a written complaint with NSW Fair Trading at fairtrading.nsw.gov.au.”
It should be noted that the Department of Fair Trading (and interstate equivalents) provide a mediation service only. They cannot compel a business owner to take part in mediation, or even to engage in dialogue. The Department of Fair Trading has no legal powers to instruct anybody or enforce anything.
But a spokesperson from NSW Fair Trading further advises, “If a mutual agreement between the parties cannot be reached, Fair Trading provides options that may assist the customer to pursue the matter further.
This may include tribunals such as the NSW Civil and Administrative Tribunal (or interstate equivalent), other government departments like the Department of Infrastructure’s Vehicle Safety Standards Branch. Individuals can also seek independent legal advice and progress the matter to the Local Court where the monetary value is greater than the tribunal’s jurisdictional limit.”
These are often no help to caravan or motorhome owners, though. The tribunal’s jurisdictional limit in NSW is $40,000 and Queensland is $25,000, often more than the claimed cost of repairs and likely more than the cost of the caravan or RV. The Department of Infrastructure’s Vehicle Safety Standard’s Branch is also limited, as it takes a big-fish, big-change approach to reform. Its focus is only systematic safety issues affecting multiple vehicles or breach of regulations. It states, “It is important to note that the Department cannot provide advice on the safety of individual vehicles, nor can it assist with disputes between vehicle owners and manufacturers/dealerships.”
The ACCC has greater powers of enforcement, but will only act on behalf of a consumer if the complaint falls within their guidelines. An ACCC spokesperson advises: “Compliance and enforcement of the Australian Consumer Law is carried out by the ACCC and state and territory consumer regulators on a ‘one law, multiple regulators’ model; The ACCC’s approach to deciding which matters to investigate is to achieve the best possible outcome for the community and to manage risk appropriately. Our enforcement actions seek to maximise impact across an industry sector and the ACCC will use the outcome of one court proceeding to encourage other industry participants to improve their practices. Further details can be found in the ACCC’s Compliance and Enforcement Policy (link at the end of the article); In 2017 the ACCC took action against a major Australian manufacturer over ACL concerns, including making misrepresentations to consumers as to a consumer’s right to a refund under the ACL. This matter is still before the courts.”
The last resort is to engage a lawyer and initiate legal action. The consumer laws are plain and litigation should be straightforward but most certainly will be expensive. Some law firms will offer a mediation option rather than litigation. Although you may have already been down that particular path, the extra muscle of legal representation, and implied threat of court action may produce a different result.
The manager of the Caravan Council of Australia, Colin Young, who says he sees the worst of Australia’s caravan faults, says [the lemon caravan problem] “is very widespread, with many serious non-compliances.”
However, Stuart Lamont, the CEO of the Caravan Industry Association of Australia, paints a bright picture and offers some figures to back it up.
“Caravans are complex products with many moving parts, and while on occasions things do go wrong which require repair or replacement we would consider the instances of “lemons” are very rare relative to the number of caravans on the road.”
Our evidence shows that industry businesses take their obligations seriously and many retailers/manufacturers contacted recently have at some time replaced or refunded a customer when a genuine claim has been identified.
Further, a recent survey conducted with 288 consumers known to have purchased an RV product in the past two years; of those who had experienced a problem and had a repair conducted only 7% of these consumers were extremely dissatisfied – this compares to over 46% said they were highly satisfied with their level of service associated with the repair of their product.”
Is there room for improvement in Australian consumer protection laws?
To this important question, Stuart Lamont responded, “We believe the consumer laws are adequate to deal with the issues at hand. The failing is not the legislation but the system itself where for example in Queensland a $25,000 limit with QCAT does not in many cases provide an adequate avenue for consumers to test their claims without costly court action.”
If you have a lemon parked in the shadows in your driveway, despair not. There is a pathway to a remedy, albeit shrouded in mist. Follow the pathway, seek the help that’s available, document every step, and there is every chance you will step out into the sunlight again.