King v Harvey
[2011] QCAT 702
•9 December 2011
| CITATION: | King v Harvey [2011] QCAT 702 |
| PARTIES: | Dianne King (Applicant) |
| v | |
| David Harvey trading as David’s Small Engines (Respondent) |
| APPLICATION NUMBER: | MCDO203-11 (Beenleigh) |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 2 November 2011 |
| HEARD AT: | Beenleigh |
| DECISION OF: | Trevor Davern, Adjudicator |
| DELIVERED ON: | 9 December 2011 |
| DELIVERED AT: | Beenleigh |
| ORDERS MADE: | 1. ‘David’s Small Engine Service Pty Ltd’ is added as a Respondent. 2. The Claim/Application is dismissed. |
| CATCHWORDS: | Application for a refund of purchase price of a ride on lawnmower on the basis that it wasn’t fit for the purpose for which it was purchased |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Dianne King – in person |
| RESPONDENT: | Mr David Harvey – in person |
An order was made on 2 November 2011 for the delivery of further evidence and written submissions, upon which a final determination would be made.
REASONS FOR DECISION
The evidence confirms that ‘David’s Small Engine Service Pty Ltd’ is the legal entity with whom the Applicant has contracted. Consequently that company is added as a Respondent.
The subject ride on lawnmower (Rover Clipper) was advertised for sale. In response, Ms King had her husband (Michael Leaver) attend the shop on 8 March 2010 to inspect the machine.
Even by his own account of discussions on 8 March 2010 in his Statutory Declaration, Mr Leaver does not emphasise that the area to be mown is especially rough terrain. There is no clear indication that Mr Leaver was relying on any expertise of Mr Harvey in assessing the suitability of the machine. From the evidence I am satisfied that Mr Leaver made his own assessment of the suitability of the machine.
After Mr Leaver’s inspection, Ms King purchased it over the telephone via credit card payment. There is conflicting evidence of what discussions occurred between the parties when the machine was delivered to Ms King on 9 March 2010. From the evidence I am satisfied that the contract was complete at the moment of delivery.
Ms King had attempted to make a warranty claim against the importer and distributor of the product, Briggs & Stratton. In its response letter dated 3 June 2011, it describes:
“The issue of the rider has been caused by sustained damage to the cutting deck and non genuine deck belts used and fitted by owner (at times incorrectly). Briggs and Stratton have had our dealer, The Mower Place (Browns Plains) adjust the deck to specification. This was very difficult considering the sustained impact and use in an unlevelled state for a considerable amount of time. This service procedure was done under customer good will at no cost to you. Mr King (Leaver?) was informed of the service adjustments and work carried out by our dealer at 2.30pm on Friday 13th May 1022. Mr King was told that the deck belt would be replaced at his cost that it had been ordered. Mr King stated that he had another belt at home and would fit it himself. He asked to have the dealer The Mower Place deliver the mower as is and he would pay them for the transport costs.”
Other evidence confirms that certain work was done to the mower by Ms King before any issue was raised with the Respondents.
From the available evidence, it is determined that the Applicant made her own assessment of the suitability of the machine (via Mr Leaver) and that any failure or damage to the ride on lawnmower is directly attributable to the use of it and maintenance or attempted repairs by the Applicant. Consequently neither of the identified Respondents can be held to be at fault.
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