Petersen t/a Bobcat Bob v Diesel Engine Manufacturing Australia

[2014] QCAT 114

CITATION: Petersen t/a Bobcat Bob v Diesel Engine Manufacturing Australia  [2014] QCAT 114

PARTIES:	Mr Adam Petersen t/a Bobcat Bob ABN 30 847 482 014 (Applicant)
V
Diesel Engine Manufacturing Australia ABN 41 095 277 026 (Respondent)

APPLICATION NUMBER: MCDO1853-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 22 November 2013
and further written submissions required by
22 January 2014

HEARD AT: Brisbane

DECISION OF: Adjudicator Davern

DELIVERED ON: 28 March 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The Applicant is to return the rebuilt Mitsubishi 6D16 turbo engine to the Respondent within 28 days.

2.    Within 28 days of receipt of the engine, the Respondent is to pay the Applicant the sum of $14,014.60.

CATCHWORDS: MINOR CIVIL DISPUTE – CONSUMER DISPUTE – CONSUMER GUARANTEES – GOODS OF ACCEPTABLE QUALITY AND FIT FOR PURPOSE – where applicant contracted with respondent for sale of a fully rebuilt turbo engine – where date of collection agreed to by parties – where there is evidence that respondent had not run tested the engine and it was missing components – whether goods of acceptable quality and fit for purpose – whether applicant breached responsibilities – whether applicant entitled to a refund of purchase price, costs of mechanic services, transportation costs

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr Adam Petersen
And
Ms Julie Petersen (mother)

RESPONDENT: Mr Rod Luke – Director
And
Mr Anthony Floyd – Diesel Fitter

This matter was part heard and determined on the papers (after the hearing event on 22 November 2013) pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The Applicant contracted with the Respondent in early 2013 for the Respondent to deliver a fully rebuilt Mitsubishi 6D16 turbo engine. The Applicant is based in Newcastle and the Respondent is at Nerang.

2. Evidence confirms that at the time the Applicant’s employees collected the engine on 11 April 2013, it had not been run tested and was missing a Welch plug in the flywheel housing.

3. A major point of contention is that the Respondent alleges that the employees of the Applicant arrived unannounced on 11 April 2013 to collect the engine, and that they hadn’t had time to run test the vehicle. The evidence from the Applicant is that a call was received from the Respondent business on 4/4/13 to collect the rebuilt engine on 11/4/13. The version of the Applicant is more plausible as a considerable effort was required for the Applicant to send a team from Newcastle to Nerang to collect the subject item. The Respondent confirms it its submissions that “To the best of our recollection we advised that the engine SHOULD be ready by the day they arrived, not that it WOULD be ready”. Being aware of the effort required for the Applicant in Newcastle to make arrangements to collect the engine, the Respondent should have ensured that the reconditioned engine was complete and fit for purpose by the nominated date.

4. Extensive evidence has been provided of interaction between the parties and efforts to rectify the situation. The Tribunal is unable to decipher from the evidence the extent of failures on both sides that relate to storage and handling and attempted restoration of the subject engine. Related issues involved thread tape on the sump plug, water leaks and rust.

5. It is likely that the Applicant’s employees would have witnessed the Respondent’s employees completing the assembly of the engine on 11 April and that no run test was carried out. They did not report this to the Applicant that the Applicant might have been more vigilant in checking over the engine before installation on 26 April 2013. It was after this installation by Mark Petersen that a major oil leak behind the fly wheel and absence of the Welch plug at the back of the bell housing were reported.

6. An independent inspection of the engine was arranged by the Applicant and carried out by Ference Truck Repairs on 16 May 2013, and reported the following: Removed engine sump plug, drained oil & water solution from sump. Fitted pressure to cooling system & pressurised, could see coolant running from sump. Removed rocker cover to enable a top end inspection & could not see any faults visually but could hear coolant leaking internally. This report was dated 6 June 2013 and forwarded to the Applicant. No mention was made of the sump plug having been damaged.

7. The engine was returned to the Respondent for evaluation. In this process the Respondent had not needed to remove the sump plug. After this the engine was then collected by the Applicant.

8. Mark Petersen returned to refit the turbo engine in June 2013. He then reported the presence of water coming out of the engine breather and rust in the baffle and rockers in the tappet cover. He also reported that the sump plug was damaged and that water was coming from number 3 cylinder.

9. The Respondent submits that the issues could not be resolved by way of the warranty, as the Applicant was in breach of its responsibilities required by that warranty. Examples given by the Respondent include that the Applicant failed to supply the radiator to connect to the engine for testing, and failed to supply evidence of the subject radiator having been flushed/cleaned or replaced. The required items had been used by the Applicant in another truck.

10. The limited evidence available raises some doubt or suspicion that the Applicant may have contributed directly or indirectly to the failure of a final resolution (inadvertent or otherwise) from what might have happened to the engine while it had been in the possession of the Applicant. That suspicion is enough to diminish any successful outcome for the Applicant.

11. The Applicant has since purchased another engine for $15,000.00 to put in that truck. 

12. On balance, the Applicant is entitled to a refund of the sum paid to the Respondent ($13,000), on the basis that when the Respondent handed over the reconditioned engine to the Applicant, the job was not properly completed and the engine was not to the standard of acceptable quality and was not fit for purpose. The Applicant is also entitled to recover an allowance of $330.00 for the mechanic and $400.00 for transporting the engine back to Queensland (in 2013 & to return the engine) and the filing fee of $284.60. The diminution of the recovery shall be reflected in disallowing the other separate elements of claim.  

13. Consequently, the Tribunal makes the following orders:

    a)    The Applicant is to return the rebuilt Mitsubishi 6D16 turbo engine to the Respondent within 28 days;

    b)    Within 28 days of receipt of the engine, the Respondent is to pay the Applicant the sum of $14,014.60.