State of Queensland v King - [2014] QCAT 606

CITATION:

State of Queensland v King [2014] QCAT 606

PARTIES:	State of Queensland A/T Department of Education, Training and Employment t/as Kingston College (Applicant)
v
Michael King ATF The King Investment Trust t/as Swimart Beenleigh (Respondent)

APPLICATION NUMBER:

MCDO914-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

26 August 2014

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Bertelsen

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The applicant return the Ultramax Junior robotic pool cleaner to the respondent’s business premises within 14 days.

2. The respondent pay to the applicant the sum of $12,063.70 within a further 14 days.

CATCHWORDS:

Supply of robotic pool cleaner – suitability of cleaner – representation of suitability – cleaners failure to cope – not fit for purpose – failure of modifications to enhance performance – whether refund warranted

APPEARANCES:

APPLICANT:

Joanne Manthey, Business Services Manager; Michael Whitney, School Facilities Officer

RESPONDENT:

Michael King

REASONS FOR DECISION
Application

By application filed 2 May 2014 the applicant the Department of Education, Training and Employment t/as Kingston College (‘the College’) seeks refund of the sum of $12,013.70 paid by it to Michael King as trustee for the King Investment Trust t/as Swimart Beenleigh (‘Mr King’) for an Ultramax Junior Robotic Cleaner (‘pool cleaner’) and which the College asserts is unfit for the purpose of cleaning the school pool at Kingston College.

Background and Evidence

There is located at Kingston College within the school grounds a 25 metre by 15 metre school swimming pool. It is in the open and surrounded by trees primarily ironbark and gums. The College decided to invest in a robotic pool cleaner that would save labour and time. Mr King was given the opportunity to quote for a suitable robotic pool cleaner.
By letter dated 27 October 2012 Mr King wrote to the College stating:
I met with Michael Whitney last week and had a good look at the pool noting its length, width, pool finish and ease of access. I would recommend the purchase of an Aquatron Ultramax Junior for the price of $10,967.00 including GST. This robot will easily clean your pool in a three hour period and has many features that make this commercial cleaner the world’s most popular. This robotic cleaner comes with a two (2) year manufacturer’s warranty.
In late 2012 a demonstration was arranged at the school pool. An older model well used Ultramax Junior was utilised for this purpose. This older Ultramax Junior seemed to be plagued with a number of functional problems. In due course however it apparently did function correctly for a short 10 – 15 minutes after which Mr King took the older Ultramax machine back to his shop. A few weeks later Mr Whitney corrected the old Ultramax Junior and took it to the school pool.
The older Ultramax Junior in the period late 2012 through about 8 February 2013 was problematic. Whilst it did function to a degree the intake suction ports kept blocking without the collection bag filling.
On about 8 February 2013 the new model Ultramax Junior previously ordered was delivered and the older Ultramax Junior handed back to Mr King. According to Mr Whitney, school facilities officer, he was assured by Mr King that the ‘new machine with new rollers, new traction’ would do the job. Mr Whitney expressed concern that the Ultramax Junior may not be right for the school environment. He stated he was assured by Mr King that he would not experience problems with the new Ultramax Junior.
The new Ultramax Junior was installed on or about 8 February 2013 and paid for some days later. The new Ultramax Junior contains an internal collection bag some 300 millimetres long by 200 millimetres wide by 15 millimetres deep. It was not possible for the collection bag on the new Ultramax Junior to be enlarged. There were four intakes suction ports for leaf and litter collection each approximately 150 millimetres by 40 millimetres. It self-operated on a long lead, had an inbuilt memory and only resurfaced for cleanout of the collection bag.
Mr Whitney said that from the outset the Ultramax Junior did not function as intended. Initially he noticed the intake ports kept blocking up with leaves and he wondered why. He said he hand vacuumed the pool such that there were virtually no leaves in the pool; that he introduced the Ultramax Junior; that over a week leaf litter mounted in the pool; that this was despite the pool cleaner running three and half to four hours per day.
He said that with continually watching the Ultramax Junior function that every 10 to 15 minutes the collection full light would come on; that when he pulled the Ultramax Junior out of the water to check the collection bag it was only a quarter full; that all the intake suction ports were blocked. He said he monitored the pool cleaner over four weeks trying to help the pool cleaner by working from a clean pool; that despite all the pool cleaner ‘did not do one thing for us’.
He said he was there at the pool virtually the whole of the time the Ultramax Junior was operating. He thought that if the collection bag was filled every day that would have been adequate to keep the pool clean. However, having to monitor and check the pool cleaner every 10 to 15 minutes defeated the purpose of the purchase. The collection bag never ever filled as it was designed to do.
Mr King stated that it appeared there were sticks under the leaves; that if the pool was properly prepared the problem of intake suction ports blocking would go away. Mr King said the Ultramax Junior was recommended by Metco as suitable for a pool of the size of the College pool; that yes there was a ‘big brother’; that it had an extra motor for larger pools but that the intake suction ports were the same size; that the larger unit provided more suction, more power and was more expensive.
Early in 2013 a modified base plate was supplied for the Ultramax Junior. The original base plate had small non return flaps on the intake suction ports. These were removed as they were thought to be restricting inflow. However according to Mr Whitney this did little to change things.
Mr Whitney said that when he explained the issues to Mr King that he was simply referred to the manufacturer. Mr King said the nature of complaint was a warranty issue and that Mr Whitney needed to speak to the manufacturer directly. Mr Whitney insisted that the College had dealt with Mr King and not with the manufacturer.
Mr King said that upon complaint being made he in any event informed the manufacturer Metco. Mr King indicated that a manufacturer’s representative from Adelaide had attended the College during the school holiday season; that there being no access to the pool the representative returned to Adelaide.
Mr Whitney said the College did arrange a meeting with a representative of Metco. That representative apparently was to arrive on 15 November 2013 to ‘commission another machine’ elsewhere. That representative was to visit the College as well on 18/19 November 2013. It was arranged for the pool not to be used for two days prior. The representative did not attend the College.
Mr Whitney said it was then arranged to meet during school holidays. The Metco representative was to ring and staff would be made available to meet the representative; but there was no phone call; that there was no backup or support provided; no ongoing assistance; that the College was ignored; that the College was encouraged to purchase the pool cleaner advertised as ‘suited to pools found in larger hotels and public swimming facilities’ and said to be the most versatile commercial-public pool cleaner on the market. The advertising did not reference any pool size.
Mr King stated the Ultramax Junior had serviced pools larger than the College pool in any event. When the Tribunal posed the question whether the new Ultramax Junior was ever going to be adequate Mr Whitney said that if it was used daily and the collection bag filled, that with continuity of use the leaves and litter could be kept under control.
The College produced with this application photos depicting leaves and litter blocking up the 4 intake suction ports. Mr King said there appeared to be sticks under the leaves and litter.
The College produced a statement/report from James McFallan from “All About Pools and Spas” in which he stated ‘Ultramax Junior is a commercial pool cleaner that would be more suitable for an indoor pool or a less challenging environment e.g. a pool that doesn’t get so many leaves’. He went on to say ‘I don’t believe that the Ultramax Junior would have done the job properly from the start because of the size of the storage area in this particular pool cleaner which makes the pool cleaner insufficient for the intended purpose’. It was not disputed that Mr McFallan would have been a competitor.
The College produced Metco’s (the manufacturer) online advertisement featuring the Ultramax Junior as a pool cleaner ‘suited to pools found in larger hotels and public swimming pools’. The advertisement stated that the Ultramax Junior could ‘pick up all debris and particles from the pool bottom in one cycle’. The advertisement lauded the Ultramax Junior as ‘the most versatile commercial public pool cleaner on the market’.

Conclusions

Mr King visited the pool site in late 2012 at which time he noticed the pool length, pool finish and ease of access. It is fair to say that he would have or should have observed the pools immediate surrounds characterised by trees, ironbark and gums given that the purpose of the schools proposed purchase of a pool cleaner was to collect leaves and litter utilising a robotic pool cleaner that saved labour and time.
Mr King represented that despite problems with and some reservations about the old Ultramax Junior that the latest model Ultramax Junior installed on or about 8 February 2013 would do the job; that the school would not experience problems.
Despite modifications to the intake suction ports the new Ultramax Junior was not able to collect leaves and litter in any volume. The photos produced by the College clearly depict 4 intake suction ports blocked up with leaves and litter. The photos do not depict sticks or larger objects blocking the intake ports. There appears to be nothing out of the ordinary in the leaves and litter depicted as blocking the intake ports.
The College went to extraordinary lengths to assist the Ultramax Junior to function as intended. The pool was cleaned so that the Ultramax Junior could function from an unhindered or an uninhibited starting point. Its performance was closely monitored over a period of days and weeks. The intake suction ports quickly blocked up and the collection bag full light came on after some 10 – 15 minutes of use. The collection bag was only ever filled to a minor degree. This constant monitoring of what was advertised and represented to be a robotic pool cleaner entirely defeated the purpose of the purchase in the first instance i.e. to save labour and time.
The Ultramax Junior was represented in its advertisement as being suited to pools found in larger hotels and public swimming facilities; that it was the most versatile commercial-public pool cleaner on the market. It can be readily accepted that most public swimming facilities have a 25 metre pool and in some cases a 50 metre pool and are usually in the open. There is nothing about the site of the College’s pool that is out of the ordinary yet the Ultramax Junior simply failed to adequately cope. The Tribunal considers that the Ultramax Junior as a commercial pool cleaner was probably more suited to an indoor pool or a less challenging environment as suggested by Mr McFallan in his statement. Either way clearly the Ultramax Junior was never fit for the purpose for which it was supplied in this instance.
There were some arrangements made for the manufacturer Metco to observe the Ultramax Junior function. Despite the College going out of its way to have the pool accessible and the Ultramax Junior available on specific occasions the manufacturer Metco’s representative never attended.

Australian Consumer Law

The supply of the Ultramax Junior was for the purpose of cleaning the College’s pool. The purpose was fully disclosed in that the College wanted to save time and labour by utilising a self-operating robotic pool cleaner. Mr King observed the pool and its immediate surrounds at the outset. Clearly here there was a guarantee that the Ultramax Junior was reasonably fit for the purpose of robotically cleaning the pool.
The College subsequently rejected the goods within a reasonable time, having prior, requested both Mr King and Metco to remedy the Ultramax Junior’s failure to perform. That was despite the supply of a modified base plate which was inconsequential. In these circumstances it is well within the purview of s 55 of the Australian Consumer Law for the College to reject the Ultramax Junior and recover the money paid.
The College must firstly return the Ultramax Junior to Mr King. The College thereafter is entitled to a refund of the purchase price $12,063.70.

Orders

The applicant return the Ultramax Junior robotic pool cleaner to the respondent’s business premises within 14 days.
The respondent pay to the applicant the sum of $12,063.70 within a further 14 days.