Wings Removals Pty Ltd v B&Z Transport Pty Ltd

[2014] QCAT 302

CITATION: Wings Removals Pty Ltd v B&Z Transport Pty Ltd [2014] QCAT 302

PARTIES:	Wings Removals Pty Ltd (Applicant)
v
B & Z Transport Pty Ltd (Respondent)

APPLICATION NUMBER: MCDO50926-13

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 16 April 2014

HEARD AT: Southport

DECISION OF: Adjudicator Bertelsen

DELIVERED ON: 24 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS: Private second hand truck sale – condition of truck – existence of underling fault – disclosure of fault – whether warn componentry constitutes fault

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Karen Leong, director
Jason Dieckmann, general manager
Mr McGrath, McKenzie friend

RESPONDENT: Zlatko Atanasovski, director

REASONS FOR DECISION

Application

1. By application filed 14 August 2013 and as subsequently amended the applicant Wings Removals Pty Ltd (‘Wings’) seeks $19,183.87 being the cost to replace the gearbox and GS3 gearbox computer/harness said to have failed shortly subsequent to purchase on or about 20 June 2013 from the respondent B & Z Transport Pty Ltd (‘B & Z’) of a 2007 Man Prime Mover registered number 467JXY.  Wings alleges deliberate concealment at the time of sale of a defective gearbox and GS3 computer/harness.

Background and Evidence

1. Mr Dieckmann of Wings contacted Mr Atanasovski of B & Z sometime early June 2013 regarding the truck which B & Z was selling. Mr Dieckmann test drove the truck shortly after which on 13 June 2013 Mr McDonald of Full Noise Truck and Trailer Pty Ltd conducted an inspection at the Reedy Creek Caltex Service Station.  A few days later an offer to purchase the truck was made.  On 20 June 2013 Wings took possession of the truck and a few days later paid $62,000 to B & Z for the truck.

2. It was asserted by Wings that Mr Atanasovski told Mr McDonald at the time of inspection that the truck had been serviced by the dealer for logbook services; that after warranty expiration the truck was serviced by a private mechanic; that in answer to whether there were any underlying faults with the truck Mr Atanasovski stated that the clutch had been replaced two years earlier and the engine sump replaced under warranty; that Mr Atanasovski insisted that the truck was reliable and had no other outstanding faults.

3. Wings operated the truck from the time of purchase for about one to two months driving some 6,000 kilometres when the GS3 harness (computerised brain of the gearbox) (‘GS3’) failed.

4. Shortly prior on 27 May 2013 Mr Atanasovski had the truck serviced by Brisbane Truck Centre.  There were issues with gear selection. Mr Atanasovski asserted the GS3 was taken apart and cleaned and refitted to the truck; that he was told if there were any further problems to please come back.  Mr Atanasovski said from 27 May 2013 to 20 June 2013, some 24 days, he drove the truck every day sometimes working 12 hours per day travelling some 8,500 kilometres in that time; that the truck was fully functional in that time.  Mr Atanasovski said that with the truck having travelled a further approximately 6,000 kilometres post sale there was some 14,000 kilometres plus travelled before failure of the GS3. He said he spoke to one Daryl Torpey service manager at Brisbane Truck Centre who indicated that if the problem persisted to come back; that there was no problem with the GS3 and it was not necessary for him to return; that Mr Torpey would not have concealed necessary repairs; that Brisbane Truck Centre would not have allowed him to drive away in a faulty truck; that it would in fact have been illegal for Brisbane Truck Centre to do so; that there was never any suggestion at the time of service that the gearbox was faulty or required replacement; that cleaning and refitting of the GS3 was considered adequate by Brisbane Truck Centre.

5. The service tax invoice from Brisbane Truck Centre dated 30 May 2013 refers to gearbox issues and worn GS3.  Though found to be worn and dirty it was cleaned and refitted rather than replaced as the ‘driver … did not want this’.  The invoice referred to a problem selecting drive after reverse had been selected; that GS3 replacement would solve that issue. Mr Atanasovski said that simply was not the case because he would not have been able to drive out of the driveway if it were so.  Mr Atanasovski said there was no problem in selection of reverse through to drive.

6. Mr Dieckmann stated from approximately July 2013 to December 2013 the truck was unusable and located at Full Noise Truck and Trailer Pty Ltd.  An invoice from Full Noise Truck and Trailer Pty Ltd dated 23 December 2013 was produced to the Tribunal.  That service invoice recorded amongst other things ‘repair transmission gear selection faults’.  Then in January 2014 the truck was driven from Brisbane to Gladstone and back again; then to Mackay where the GS3 according to Mr Dieckmann failed again.  The truck remains in Mackay.

7. Mr Dieckmann asserted the claim as correctly for replacement of both gearbox and GS3 stating that is what Brisbane Truck Centre recommended.  In answer to the Tribunal’s query as to whether there was anything wrong with the gearbox the same recommendation was relied on. Brisbane Truck Centre quote of 11 July 2013 for replacement of both gearbox and GS3 totalled $19,183.87.

Conclusions

1. It is claimed ‘the defect in the GS3 and gearbox was actively concealed by B & Z’.  There was absolutely no evidence produced to the Tribunal that the gearbox itself required replacement prior to the date of sale.  Brisbane Truck Centre service tax invoice of 30 May 2013 advised replacement of GS3 to solve the issue of inability to select drive after selecting reverse.  That in fact was obviously not an issue as Mr Atanasovski drove the truck some 8,500 kilometres during the ensuing 24 days ie from 27 May 2013 to 20 June 2013.  The truck was then driven some 6,000 kilometres in the one to two months following.

2. The same Brisbane Truck Centre invoice found some parts of the GS3 to be worn and dirty.  The driver (presumably Mr Atanasovski) was spoken to about replacing the GS3.  In the event the GS3 was reassembled and refitted with some new parts.  There was nothing in that invoice that categorised the GS3 as defective.  At best it was suggestive of aging componentry in a truck some six years old having travelled some 729,493 kilometres in that time, a fact it appears that certainly was not concealed from Wings and of Mr Atanasovski getting the most out of existing componentry.  That sits in line with the truck travelling another 14,000 plus kilometres before the GS3 failed and with the truck then some six months later in December 2013 being repaired such as to enable a return trip to Gladstone and a trip to Mackay to be undertaken.

3. At the time of pre-purchase inspection on 13 June 2013 Mr McDonald asked if there were any underlying faults that needed to be addressed. Mr Atanasovski’s response was that the clutch had been replaced two years earlier and the sump changed under warranty.  These two events were never underlying faults but simply issues that were addressed in the past and fully disclosed to Mr McDonald.  An expectation that there would not be some warn componentry in a six year old truck with an odometer reading of 729,493 (735,928 by 13 June 2013) and more by 20 June 2013 was unrealistic particularly in light of disclosure at the time of Mr McDonald’s inspection of only a clutch replacement two years prior and sump replacement under warranty ie it would have been apparent that engine componentry generally was original.  The cleaning and replacement of some componentry of the GS3 never constituted an underlying fault.  Once again that is clear from the 14,000 plus kilometres travelled and subsequent trips to Gladstone and Mackay.

4. The truck was openly inspected by Mr McDonald on 13 June 2013. Nothing was concealed.  The uncertainty of performance of componentry in second hand vehicles is recognised generally in limited statutory warranties obliged to be given by licensed dealers, for instance, under the Property Agents and Motor Dealers Act 2000 (Qld). Wings claimed the truck was not reliable and had other serious outstanding faults. None were prosecuted at hearing.

5. Requirements of merchantable quality and fit for purpose apply to individual consumers.  The sale/purchase giving rise to the claim was entirely a private transaction between two commercially active entities. The Tribunal considers there was no misleading or deceptive conduct here.

6. The application is dismissed.