Flowcrete Pty Ltd v Active Concrete Pumping Pty Ltd
[2015] QCAT 288
•27 July 2015
| CITATION: | Flowcrete Pty Ltd v Active Concrete Pumping Pty Ltd [2015] QCAT 288 |
| PARTIES: | Flowcrete Pty Ltd (Applicant) |
| v | |
| Active Concrete Pumping Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO2149-14 |
| PARTIES: | Active Concrete Pumping Pty Ltd (Applicant) |
| v | |
| Flowcrete Pty Ltd (Respondent) |
| APPLICATION NUMBER: | MCDO513-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 17 April 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 27 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Active Concrete Pumping Pty Ltd pay to Flowcrete Pty Ltd the sum of $19,882.01. |
| CATCHWORDS: | Sale and purchase of machinery – compliance Australian Standard and Code of Practice (Qld) – applicability of compliance certification to sale/purchase – absence of warranty pursuant to contract – certifiers liability post sale |
APPEARANCES:
| APPLICANT: | Peter Willoughby, Production Manager |
| RESPONDENT: | Richard Adams, Director Mark McErvale, Office Manager |
REASONS FOR DECISION
Applications
By application number MCDO2149-14 filed 18 September 2014 Flowcrete Pty Ltd (‘Flowcrete’) sought the sum of $18,750.90 as monies due and owing pursuant to 16 invoices issued in the period 5 May 2014 through 18 June 2014 for spare parts and wear items (items that wear out) supplied to Active Concrete Pumping Pty Ltd (‘Active’).
By application number MCDO513-15 filed 12 March 2015 Active sought the sum of $22,550.00 for repairs, labour, parts, materials and damages based on an incorrect and non-compliant certification of a concrete pump and boom unit by Flowcrete.
Background and Evidence
In early 2014 a company No 1 Concrete Pumping Pty Ltd (No 1 Concrete) retained Flowcrete to compile a six year periodic inspection of the pump and boom unit for the purpose of sale of the unit to Active. The six year periodic inspection dated 24 April 2014 though compiled by Flowcrete was in fact constituted by a series of certifications by Lionel Walker engineer of Pump & Engineering Pty Ltd certifying as to the acceptable condition of the pump and boom unit.
Mr Walker engineer attended Flowcrete’s premises on numerous occasions to examine componentry, require rectification work as necessary and re-examine and certify to the acceptable structural integrity of the pump and boom.
On 5 May 2014 after completion of six year periodic inspection No 1 Concrete sold the pump and boom unit together with the Mitsubishi truck on which it was mounted to Active for $295,000.00. Flowcrete was not a party to the contract.
Clause 4 of the contract provided:
Certification of equipment and assignment of warranties:
To the fullest extent permitted by law, the seller makes no warranty or representation to the buyer about the condition of the equipment or fitness for the purpose or any other warranty or representation including those implied at law. The buyer acknowledges that the equipment is second hand and agrees that the buyer has relied on the buyers own inspection and enquiries made by the buyer or on the buyers behalf in respect of the equipment in as is where is condition. The seller has caused the equipment to be certified by Flowcrete Pty Ltd for the purposes of this sale and purchase. Upon payment of the price in full the seller will cause Flowcrete Pty Ltd to assign all warranties that Flowcrete Pty Ltd regularly and usually provides in respect of the equipment following certification, to the buyer.
Whilst it was the case that Active was aware of the six year periodic certification carried out as early as March 2014 Active never received any certification at the time of sale/purchase apart from the buyer Active purchasing the pump and boom unit in ‘as is where is condition’. It was also the case that No 1 Concrete never caused Flowcrete to assign any warranty that might have attached to the certification to Active.
Mr Willoughby (Flowcrete) stated that there would have been some sort of warranty akin to the conditions of sale that usually accompanied Flowcrete’s sale of products. Conditions of sale were produced to the Tribunal but no form of warranty that might have applied to the certification was available at hearing. Mr Willoughby stated that nothing about assignment of any warranty was ever referred to Flowcrete at the time of sale/purchase.
Mr Adams (Active) stated that immediately after paying for the pump and boom unit it was found to be inoperable; that Active had ‘purchased the plant on the understanding that it was fit for purpose given it had undergone a major inspection’; he assumed it was under warranty.
Defects identified were rectified but some two weeks later whilst in operation the boom collapsed and was once again inoperable. It was asserted that numerous issues were identified. The unit was returned to Flowcrete premises on about 18 June 2014. A thrust washer, a metal component some 2.5 mm thick was replaced. It was asserted that Flowcrete would not acknowledge any shortfall in the certification.
It was not disputed that the Mitsubishi truck on which the pump and boom unit was mounted never formed part of any certification.
Mr Adams/Mr McErvale (Active) agreed each invoice issued by Flowcrete was an accurate record of parts purchased; that the parts were not disputed and that Active would pay for them. However it was not clear which parts purchasd were referrable to issues with the pump and boom unit. Mr Adams/Mr McErvale were unsure.
Active’s claim of $22,550.00 from Flowcrete was made up as follows.
1. Labour involved with repairs/rectification work – 30 hours
This work apparently utilised parts purchased from Flowcrete. What was repaired or rectified was not identified.
2. Four days lost work due to issues with boom
This appears to refer to the thrust washer replacement and time taken to arrange that.
3. Insurance claim due to blown pipes
This apparently was an expense incurred due to pipes blowing out whilst pumping concrete. Mr Adams/Mr McErvale asserted it was in the Code of Practice 2005 (Qld) that pumps were required to be inspected every 12 months. Mr Willoughby said the pipes were not part of any certification or warranty.
4. Consumables
These were clamps for the pipes and oils.
5. Labour to install horn
It was asserted that pursuant to certification there was to be an audible warning device.
6. Labour/parts to replace water pump
Mr Willoughby said the water pump was not Flowcrete’s concern. Mr Adams and Mr McErvale stated parts were bought from Flowcrete and fitted by a qualified person.
Mr Adams/Mr McErvale asserted Mr Walker was not a Registered Professional Engineer Queensland (RPEQ) with the Board of Professional Engineers Queensland. A letter signed by Mr Walker was produced by Flowcrete at hearing. Mr Walker in his letter refers to his many years’ experience with concrete boom pumps but does not mention anything about registration as an engineer in Queensland.
Conclusions
A pump and boom unit (concrete placing equipment) is a truck mounted apparatus subject to an Australian Standard and a Queensland Concrete Pumping Code of Practice 2005.
In particular, the Code of Practice requires such equipment to be stripped down and inspected by a professional engineer to assess suitability of the equipment for continued service every six years. That takes the form of an engineer’s certification.
According to Australian Standard 1418.15-1994 the equipment owner is responsible to keep records of the state of repair of the equipment.
The Australian Standard and the Code of Practice are not warranties they are legislative requirements attaching in this instance to pump and boom units to ensure their safe functionality i.e. when used they are safe to use. It is the owner from time to time that bears the responsibility of compliance hence and logically the obligation to keep detailed records of repairs, replacements, inspections and service physically with the machinery. It is not the intention of the Australian Standard or of the Code of Practice to establish or be determinative of rights and obligations under contracts of sale for such machinery.
Whilst Flowcrete may have usually warranted certifications issued by engineers based on its own repair or rectification work no warranty was produced to the Tribunal; nor was there any evidence of what any such warranty might have included other than to say there were probable similarities with Flowcrete’s terms and conditions of sale.
Here Active has clearly purchased the pump and boom unit in ‘as is where is condition’. Whilst the pump and boom unit, having undergone a major inspection, may have afforded Active some comfort it did not ever give rise to a right of action against Flowcrete for subsequent repairs or replacements. This is particularly so in the absence of any evidence of any warranty attaching to the unit in the hands of Active. There is no liability on the part of Flowcrete for Active’s claims here.
Active admitted purchase and liability for payment of spare parts only some of which it appears were applicable to the pump and boom unit. Clearly Active is then liable to pay Flowcrete for its purchases.
Flowcrete claimed interest but there was no evidence produced in support of any particular rate or sum. There is a general reference to a rate in its terms and conditions of sale only. Interest therefore is allowed on Flowcrete’s claim of $18,750.90 at the QCAT calculator rate for the period 18 September 2014 to 17 April 2015 at $707.91 together with the filing fee of $294.60, service fee of $119.60 and ASIC search fee of $9.00 a total of $19,882.01.
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