Cornwell v The Trustee for Byrne No. 2 Trust trading as Triumph Gold Coast [2014] QCAT 523

CITATION: Cornwell v The Trustee for Byrne No. 2 Trust trading as Triumph Gold Coast [2014] QCAT 523 PARTIES: John Cornwell (Applicant) v The Trustee for Byrne No. 2 Trust trading as Triumph Gold Coast (First Respondent) The Trustee for Merten No. 2 Trust trading as Triumph Gold Coast (First Respondent) APPLICATION NUMBER: MCDO217-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 26 May 2014 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 11 June 2014 DELIVERED AT: Southport ORDERS MADE: 1. That the claim is dismissed. CATCHWORDS: Minor Civil Dispute - supply of motor bike – alleged major defect - not fit for purpose – repairs – independent expert inspection – warranty – replace or refund – consumer law Competition and Consumer Act 2010 (Cth) APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr John Cornwell FIRST RESPONDENT: SECOND RESPONDENT: Mr Stephen Byrne Mr Jeremy Merten -- 1 of 6 -- 2 REASONS FOR DECISION Application [1] By application1 filed 21 March 2014 Mr Cornwell seeks refund of $13,300.00 for the sum he paid to Triumph Gold Coast for the purchase of a new motorcycle that he claims has major faults. He seeks a refund of the filing fee of $284.60, relief from payment of a storage fee and that the accessories fitted to the motorbike are removed and returned to him “complete and undamaged.” [2] The Directors of Triumph Gold Coast, Mr Byrne and Mr Merten allege that the bike is not defective nor were they able to identify any problems with the bike. They were prepared to replace the bike if Mr Cornwell was agreeable to that course of action but they were not prepared to offer a refund. They stated that a refund was not appropriate as there was nothing mechanically wrong with the bike and that any problem was caused by the way Mr Cornwell rode the bike. Background and Evidence [3] Mr Cornwell purchased a new motorcycle on 12 July 2013 and took delivery of it on 17 July 2013. He says that motorbike has proven to be “unreliable, unrideable” on a number of occasions and that since the day of delivery he has experienced a “stop/stalling of the bike”. He stated that he would be riding the bike when for no apparent reason that the bike just “stops dead”. [4] Mr Cornwell said that the first occasion the bike stalled and stopped was on 17 July 2013. He said there were other problems with the bike including the headlight was not set right when delivered and it was overheating. [5] Mr Cornwell provided evidence by way of Affidavits of witnesses who allegedly had seen the problems he was having with the bike. Craig Sproule deposed in an affidavit sworn 26 May 20142 that in his opinion Mr Cornwell was a “careful rider, with obvious riding skill and was surprised at the amount of problems his bike had.” Stephen Hopkins affidavit sworn on 26 May 20143 deposed that he witnessed on 15 August 2013 “after travelling fifteen to twenty meters with increasing revs I observed Mr Cornwell changed gear into second. At the same time the engine stoped running and I observed Mr Cornwell trying to control the bike to avoid falling off.” He further states that “I then enquired if Mr Cornwell was all right. He stated that the bike has just stopped for no reason.” A further affidavit sworn by John Naumowicz on 26 May 20144 stated that on 19 August 2013 he rode with Mr Cornwell from the Gold Coast to Brisbane. 1 Consumer claim pursuant to section 12(4)(b) Queensland Civil and Administrative Tribunal Act 2009 (Qld). 2 Exhibit 1. 3 Exhibit 2. 4 Exhibit 3. -- 2 of 6 -- 3 He deposed that “John Cornwell was in the lead on his Husqvarna Nuda in a 60kph zone when suddenly and without any warning he skidded to a stop and barely keeped [sic] the bike upright leaving a two – three meter skid mark.” He deposes that “there was no brake light… I asked what happened… he stated it just stopped.” [6] Triumph Gold Coast claim they undertook extensive testing on the motorbike in relation to the stalling and stopping issue and were unable to “replicate the issues unless gears are changed too early”. They stated that the minor repair work required to rectify the overheating problem has been carried out and there is no longer any problems with the bike. [7] Triumph stated that they had the bike checked by “the distributor who is confident that the bike is mechanically sound”. They believe that there is no mechanical issue at all with the bike. [8] Triumph provided a report from Mr Vic Martin, Technical Services and Warranty manager for the Paul Feeney Group (PFG.) The report dated 23 April 20145 stated that he investigated a warranty complaint of an erratic engine temperature and a stalling issue with Mr Cornwell’s bike, being a Husqvarna Nuda 900R. The report content suggests that the erratic engine temperature “was diagnosed to be a sticky thermostat which is within the radiator, this was approved and part sent the same day”. Mr Martin claims that he provided advice regarding the stalling issue. He states that the vehicle was delivered to their head office, at Burleigh, for testing. He said “upon arrival I discovered firstly the radiator was fitted with an aftermarket aluminium protector which in its design of slots cut into it, would block air flow by up to 25% and would certainly not be suitable for Australian summer riding.” He says he carried out other testing and changed the coolant, and purged all air from the system. He states “the vehicle was tested on our dyno and road tested and found to perform without issue under Euro3 and ADR omission control regulations for European vehicles imported to Australia.” He stated that he and MA technicians “have not replicated the vehicle stalling when riding”. [9] Triumph asserted that they offered to have an independent mechanic inspect the bike. They said that they would suggest a panel of mechanics for Mr Cornwell to select one for the purpose of them inspecting the bike to prepare a report that would assist to resolve any concerns Mr Cornwell had with the bike. They said this offer had not been taken up by Mr Cornwell. [10] Triumph stated that after Mr Cornwell had brought the bike in on 4 December 2013 he had refused to collect his bike. They would prefer he collect his bike from their premises. The stated that Mr Cornwell told them he will not collect his bike because he is seeking a refund of the purchase price and does not want the bike. 5 Exhibit 4. -- 3 of 6 -- 4 Specific Defects Alleged Bike stalls and stops [11] Mr Cornwell said that the first occasion the bike stalled and stopped was on 17 July 2013. He said he was riding the bike again on 10 August 2013 when it suddenly stopped again for no apparent reason. He claims he “warmed the Nuda up for three to four minutes…took off in first – when I change in to second gear it shut down and brought me to a halt”. He claimed he was advised to change fuel “from 98 to 95, 95...is a really bad idea” and that may solve the problem. He said that he took the bike in for them to have a look at the bike. He said he changed the use of fuel he was using and the bike stopped again on 16 August 2013. He said he advised Triumph of his problems and that they requested the bike be dropped off to them for a week or so to try and “replicate the problems”. [12] The bike allegedly stopped again on 19 August 2013 and the bike was serviced on 26 August 2013. Mr Cornwell said that he had a front sprocket fitted on 17 October 2013. He said the bike stopped again on 4 December 2013 and the bike dropped and “me and bike were damaged”. Mr Cornwell emailed Triumph to advise them of the problems and raised questions regarding the bikes reliability. Bike Overheating [13] Mr Cornwell said the overheating of the bike first occurred on 4 November 2013. He said that he did not know what caused it and after contacting Triumph they were also unsure what the cause might be. He said he took the bike back to them and on same day they replaced the radiator. He said that by 15 November the bike was overheating again and he had to push the bike home. He took the bike back again to Triumph on 18 November 2013 where he was told the problem was “an airlock in the system” which had caused the overheating. [14] Mr Cromwell said that Triumph contacted him on 4 December 2013 by email after a test ride and stated that there were no problems with the bike. They advised in the email that other than intentionally stalling the bike by changing gear with low revs the bike was fine. They advised that they “found when changing from 1st to 2nd it feels unnatural to change under 4,000rpm, and having the motor under 3,000rpm at any time also doesn’t feel right.” The email also states “The nuda has a very light flywheel (magneto) therefore doesn’t like being low in the revs but its upsides are that the engine can rev very quickly. I suggest if you start riding the bike the way I’ve just mentioned you won’t have any further problems.” Headlight was not set right [15] Triumph Gold Coast and Mr Cornwell agreed that the headlight issue had been rectified and was no longer an issue. Legislation [16] Consumer Law and consumer guarantees protect individual’s rights and disputes they may have with Suppliers. The Competition and Consumer -- 4 of 6 -- 5 Act 2010 (Cth) provides guarantees for any goods that are provided to customers must be an acceptable quality6. Goods are an acceptable quality if they are fit for all the purposes for which the goods are commonly supplied for7, they must be acceptable in appearance and finish8 and free from defects9, safe10 and durable11. [17] If goods are provided to a consumer there is a guarantee as to repairs and spare parts. That is a guarantee that the consumer is able to have repairs undertaken within a reasonable time frame and with a repairer that has facilities reasonably available to the consumer. The repairs must be offered for a reasonable time period after the goods have been supplied12. [18] A supplier must guarantee any express warranty in relation to the supply of goods.13 [19] If a supplier fails to comply with a guarantee a consumer has an entitlement to either a replacement of the goods or equivalent goods, for the repair of the goods, for payment of the cost of replacing the goods or payment for the cost of having the goods repaired14. [20] The remedies relating to action taken against a supplier for failure to honour their guarantees are varied. A consumer may take action against a supplier if they fail to either replace or repair damaged or defective goods, or receive a refund15 of any money paid by the consumer for the goods. A consumer can reject the goods if a supplier fails to comply with a guarantee that is a major failure.16 The supply of goods is a major failure if the goods are unfit for purpose17 or not of acceptable quality because they are unsafe18. Conclusion and Findings [21] Mr Cornwell purchased a 2013 Husqvarna Nuda 900R under contract dated 12 July 2013 with a purchase price of $13,300.00. Pursuant to the contract he had a trade-in allowance of $4,500 and paid cash difference of $8,800.00. [22] The bike presented to Triumph Gold Coast during July to December 2013 with some problems. The issue of the bike stopping and stalling for no apparent reason has been unable to be identified or reproduced by Triumph Gold Coast. The only evidence that Mr Cornwell could present to the tribunal about the stalling issue was his own evidence and observations of his friends by way of sworn affidavits. The evidence of Mr 6 Competition and Consumer Act 2010 (Cth) s 54. 7 Ibid s 54(2)(a). 8 Ibid s 54(2)(b). 9 Ibid s 54(2)(c). 10 Ibid s 54(2)(d). 11 Ibid s 54(2)(c). 12 Ibid s 58. 13 Ibid s 59. 14 Ibid s 64A. 15 Ibid s 261(d). 16 Ibid s 260. 17 Ibid s 260(c). 18 Ibid s 260(e). -- 5 of 6 -- 6 Cornwell’s witnesses was of little assistance to the tribunal and I have placed little weight on that evidence. The evidence was not expert in nature and did not provide any insight into the alleged issues in dispute. [23] The bike had an overheating problem. It was taken to Triumph Gold Coast for investigation and found to have a minor fault being a faulty thermostat that was sticking, it was replaced and that problem is now resolved. [24] Mr Cornwell said that the headlight was not set correctly at delivery and that the headlight “pointed to the sky”. I find that problem was a minor one and has now been rectified. [25] Triumph Gold Coast provided expert evidence that the bike is mechanically sound, has no faults and under testing they have been unable to identify any problem with the bike. [26] I find that Triumph Gold Cost have fulfilled their obligations in undertaking repairs to the bike in a timely manner once presented with a problem and that they have undertaken the appropriate action in performing those repairs without any cost to Mr Cornwell. [27] Mr Cornwell did not present any evidence that the bike has the problems that he alleges. He was offered the opportunity for an independent assessment by him selecting from a panel of mechanics that would inspect and report on their findings. I cannot understand why he did not take up this offer for an independent assessment as there was a lack of expert evidence to support his claims. [28] I find that the headlight and the overheating issues have now been rectified. I cannot make any findings, based on the evidence presented, that the bike stops and stalls and is not fit for purpose. I cannot find that the bike has major failures that would require Triumph Gold Coast to replace the bike nor require them to provide a refund. [29] Triumph Gold Cost has offered to replace the bike with another new one which was rejected by Mr Cornwell. From the evidence I would not find that a replacement bike is warranted in the circumstances as the evidence does not suggest the bike that Mr Conwell purchased in 2013 is defective or requires repairs. The current Australian Consumer Law provides goods sold to be required to be of merchantable and acceptable quality and fit for purpose and in this case the evidence suggests that the bike is of an acceptable quality, is fit for purpose and that any alleged problems with the bike regarding stalling and stopping has not been proven. [30] For the reasons I have given the orders I propose to make are: 1. That the claim is dismissed. -- 6 of 6 --