Dave's Dynamic Towing & Transport v Zebra Wrecking Co Pty Ltd [2014] QCAT 163

CITATION: Dave’s Dynamic Towing & Transport v Zebra Wrecking Co Pty Ltd [2014] QCAT 163 PARTIES: David Robin Englert t/as Dave’s Dynamic Towing & Transport (Applicant) v Zebra Wrecking Co Pty Ltd (Respondent) APPLICATION NUMBER: MCDO2236-13 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 18 February 2014 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 14 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Zebra Wrecking Co Pty Ltd shall arrange for carriage of the motor from Lonsdale’s One Stop Shop to Zebra Wrecking Co Pty Ltd at Rockhampton, the cost of carriage to be borne by Zebra Wrecking Co Pty Ltd; and 2. Zebra Wrecking Co Pty Ltd shall pay to Mr Englert the sum of $6,800. CATCHWORDS: Sale of used diesel motor – limited warranty – malfunction during warranty period – obligation to return motor – waiver of obligation to return – evidence of malfunction and evidence of obligation to refund APPEARANCES and REPRESENTATION (if any): APPLICANT: David Englert (by phone) RESPONDENT: Ron Bowes -- 1 of 6 -- 2 REASONS FOR DECISION Application [1] On 23 October 2013 Mr Englert filed an application seeking reimbursement of $6,800 being the cost of a used diesel motor purchased by him from the respondent Zebra Wrecking Co Pty Ltd (‘Zebra’) claiming that the motor as installed ceased to function after only some 120 kilometres. Additionally Mr Englert claimed for out-of-pocket expenses for fluids and parts for the motor, labour for fitting and removal of the motor, towing fees and loss of income in the sum of $17,301. Background and Evidence [2] On 8 August 2013 Zebra, which carried on business at Gracemere (Rockhampton) sold Mr Englert of Reynella East, South Australia a used diesel Isuzu truck motor for $6,800. The used motor was delivered to Lonsdale One Stop Shop of Lonsdale, South Australia where it was installed into Mr Englert’s truck as a replacement motor for a no longer serviceable motor. [3] Zebra sold the motor as a running motor ie it came complete with fuel pump and injectors. A limited warranty attached to the sale. It provided for parts replacement or repair for one month from date of purchase but excluded removal and fitting of the part, third party labour charges, consequential damage, consumables or replacement fluids, towing charges, freight costs and loss of income. Incorrectly fitted parts voided the warranty. Finally any warranty claim was required to be made by presenting the part and invoice within the warranty period. [4] Mr Bowes of Zebra asserted that it was recommended at the time of sale that heating equipment in particular thermostats, fan belts and radiator hoses also be replaced or be in good working order as overheating was a common cause of a motor’s failure. Mr Englert said all such ancillary equipment was relatively new and in good working order. [5] Mr Bowes initially understood that when Zebra originally purchased the motor that it had done 89,000 kilometres and had come from a coal mine 4WD pump truck; that the truck with the subject motor in question operating was driven to Zebra’s yard; that there was no real way to tell with a second hand motor what the mileage might have been other than reliance on an odometer reading; that his company tested the motor prior to delivery by running it (though not driving it) for approximately 20 minutes to ensure the motor functioned satisfactorily. However no compression test was undertaken prior to sale. [6] The motor was fitted by Lonsdale. There appeared to be no damage to or replacement necessary of heating equipment at the time of fitting ie thermostats, fan belts and radiator hoses already fitted to Mr Englert’s truck were attached to the Zebra’s replacement motor. The motor as fitted was tested by Lonsdale and appeared to function satisfactorily. -- 2 of 6 -- 3 [7] Mr Englert then drove his truck for some 120 kilometres when the newly installed used motor failed. Mr Englert had done a few small jobs in the truck immediately after the used motor was installed. The following day on his way to Melbourne and while proceeding up an incline he noticed a lack of power and that the temperature gauge had risen. He stopped and contacted Lonsdale’s which attended the scene. Coolant and oil were both found to be in order. Fuel injectors were checked and found to be in order ie it was not a fuel issue. Number six cylinder (it was a six cylinder motor) was found not to be working. [8] Mr Englert’s truck was towed back to Lonsdale’s where it was compression tested. Number six cylinder read 30 pounds per square inch as opposed to around 400 pounds per square inch for the remaining five cylinders. [9] Between Lonsdale and Zebra it was agreed that the head be removed to determine the problem. Mr O’Brien of Zebra, with whom Lonsdale’s were communicating by email, was concerned that the motor had overheated or been in industry vehicular terms ‘cooked’. Mr O’Brien was agreeable to paying Lonsdale’s $600 to ‘lift the head’. He wanted photo’s and details of damage found. [10] Mr O’Brien however wanted the $600 payment back if the motor had been ‘cooked’ by Mr Englert. [11] Upon receiving pictures of the motor with the head taken off its seems that Mr O’Brien could not adequately discern the cause of failure. He offered to supply a rebuild kit to be fitted at Mr Englert’s expense with no refund of the initial $600 or alternatively Mr Englert could return the motor to Zebra at his cost for Zebra to have the motor examined to determine fault. If Zebra’s motor was the fault then Zebra would refund the purchase price. [12] Lonsdale’s Peter Place stated that when the motor was originally received by Lonsdale’s that there was mud and weed between the air compressor and its heat shield; that the motor looked like the victim of flood; that it appeared the sump had been taken off previously as there was fresh silicone. After the head had been lifted he observed considerable damage to number six piston; that numbers two, three, four and five showed considerable signs of wear; that number one piston was the only one that looked any good; that mud and debris was found in the water jackets and strands of plastic poking out of the water galleries; that there was mud and reeds around the motor. Lonsdale’s considered the motor ‘had been on the way out for a while’ and that ‘the engine appears to have been submerged’. [13] In its email of 5 September 2013 to Zebra, Lonsdale’s Peter Place stated ‘it is our opinion that the damage to number six piston did not happen in the 120 kilometres that the truck had travelled since the engine was installed’. He then stated that the cost involved in rebuilding the motor was going to be much more than the labour cost to simply install a rebuild kit. He suggested that a decision regarding a refund needed to be made -- 3 of 6 -- 4 before the motor was sent back to Zebra. He then suggested that North East Isuzu located near Lonsdale’s could look at the motor if Zebra was willing to pay. [14] North East Isuzu attended Lonsdale’s on Friday 6 September 2013. Dennis from North East Isuzu found: Engine overheated and would not start after 120 kilometres. Found piston number six melted badly and starting to melt piston five, four, three, two found valves have been hitting on top of piston on all. Found no marks on the valve face so in conclusion piston was in the same condition on a previous repair that looks to be a “patch” job to get truck going. [15] Mr Bowes did not agree that the motor had been underwater nor that there had been a patch job. Mr Bowes said he had checked the history of the motor right from the time of original purchase from Crockers Dealership in Mackay Queensland; that the motor was only ever the subject of routine servicing; that records obtained indicated the ‘engine has never been pulled apart or worked on’. However Mr Bowes did agree that the motor at the time of sale had done 220 odd thousand kilometres. Mr Bowes contended that he had spoken to Isuzu in Rockhampton; that they told him when a piston gets hot it expands and softens enough such that when it hits a hardened steel valve the piston is left with a valve mark while the valve remains unmarked. Thus there was no patch job as suggested. [16] Nevertheless on Tuesday 10 September 2013 Mr O’Brien of Zebra emailed Lonsdale’s stating: Good afternoon Peter. I have had North East Isuzu go have a look at the engine. It appears something has been done to the engine before we bought it. It ran up and tested to our standards. I ask that the engine we sent down to you gets pulled out of the truck and strapped to the pallet as I will pay for the shipping to another company. I will refund the money for the engine to the customer and pay the invoice for the $600 for the removal of the head. We do apologise for the inconvenience and know this is of 1 of time this has happened with an engine we sell. Thanking you again. [17] Mr Bowes argued that if a piston had been ‘missing’ then the motor would not run or would run but ‘banging its head off’. [18] Mr Englert asserted that his research into the history of the motor indicated very heavy usage particularly as the motor was originally fitted with a ‘live drive’ ie the capacity to drive machinery other than the vehicle in which the motor was fitted at the time. [19] Mr Bowes referred to two heat tabs being placed on the motor to protect the warranty. He said one would have been placed adjacent to the rear welch plug and one on the side of the motor. At about 120 to 130 degrees ie when overheating occurs they fall out. Mr Englert said he was not aware of these tabs or whether or not they had fallen out. [20] Mr Englert said he felt a likely cause of the motor’s failure was too much fuel being injected into the motor; that he had spoken to injection -- 4 of 6 -- 5 specialists Southern Fuel Injections and shown them photos of the motor; that it was their opinion that damage was caused by over supply of fuel. Conclusions [21] The motor sold was a used diesel Isuzu truck motor. There was a lot of conjecture about where the motor had been, what sort of work it was involved in, whether that work involved a lot of stationery ‘live drive’ activity and whether the motor had at some stage been submerged. Clearly however on the evidence the motor had done some 220,000 kilometres at least and probably more being fitting initially with a ‘live drive’. [22] Failure of the motor occurred during the warranty period. The necessity to return the motor to Zebra was waived when Zebra agreed for the head to be lifted at Lonsdale’s and for Lonsdale’s to provide photos and details of the damage. Lonsdale’s was paid $600 for this work. [23] There was no evidence to indicate that there was anything defective about the way Lonsdale’s installed the motor in Mr Englert’s truck. While there was some argument about the reliability of heating equipment there was no evidence to suggest that the motor’s failure was referable to malfunction or failure of any heating equipment. [24] When Lonsdale’s removed the head they quickly came to the conclusion that piston damage particularly number six piston ‘did not happen in the 120 kilometres that the truck had travelled since the engine was installed’ and that the motor ‘had been on the way out for a while’. [25] Further waiver of the necessity to return the motor to Zebra for verification of any fault occurred when Zebra, at the suggestion of Lonsdale’s engaged North East Isuzu to examine the motor. Dennis from that entity quickly came to a conclusion similar to Lonsdale’s namely ‘piston (number six piston) was in the same condition on a previous repair that looks to be ‘patch’ job to get truck going’. Mr Bowes suggested that Isuzu of Rockhampton gave him an explanation that would discount any patch job. However, Peter Place of Lonsdale’s and Dennis of North East Isuzu both had the benefit of personal inspection. Their conclusions particularly when read together point to existing piston damage at the time of installation such that the motor was unlikely to function for any length of time; that the motor lost power due to the state of the pistons particularly number six piston. [26] It was suggested Mr Englert may have been at fault for not stopping quickly enough at the time the motor lost power and overheated. The Tribunal is satisfied on Mr Englert’s evidence that he stopped his truck as quickly as circumstances allowed; that he did not allow the motor to be ‘cooked’ as suggested. [27] Mr O’Brien’s email of 10 September 2013 sent shortly after North East Isuzu’s inspection states the motor’s failure can be finalised by having the motor shipped away, a refund of money to Mr Englert and payment to -- 5 of 6 -- 6 Lonsdale’s of their $600 invoice to remove the head. This email alone can be construed as an acceptance by Zebra of an obligation to refund the $6,800 paid to it by Mr Englert. [28] Pursuant to the limited warranty Mr Englert’s out-of-pocket expenses are excluded. [29] Orders shall be that: 1. Zebra Wrecking Co Pty Ltd shall arrange for carriage of the motor from Lonsdale’s One Stop Shop to Zebra Wrecking Co Pty Ltd at Rockhampton, the cost of carriage to be borne by Zebra Wrecking Co Pty Ltd; and 2. Zebra Wrecking Co Pty Ltd shall pay to Mr Englert the sum of $6,800. -- 6 of 6 --