Keith Allen Callinan awarded more cash in Court of Appeal win over damages awarded in Power Equipment Pty Ltd case
A Queensland man has won an appeal after receiving less than $10,000 in damages over a boat that failed nine times, once leaving him without a motor during a trip to the Whitsundays.
Police & Courts
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A recreational speedboat called ‘Quick Fix’ may have failed to live up to its name but its Mackay owner has had a major win in the Appeals Court following its ill-fated history.
Boat owner Keith Allen Callinan was unhappy with the court judgment in March this year of just over $8000 in damages for Quick Fix and appealed that the judge incorrectly interpreted the measure of damages available under the Australian Consumer Law.
Appeal Court Justices John Bond, James Henry and Sean Cooper found in his favour, deleting ‘$8,069.00’ and substituting ‘$70,494 together with interest on the amount of $62,425’.
They also found that the respondent, Power Equipment Pty Ltd must pay Mr Callinan’s costs of the application for leave to appeal and of the appeal.
The court heard that Mr Callinan purchased Quick Fix in 2006 and then it was fitted with two Volvo engines and accompanying Volvo stern drives.
In late 20212, he replaced the Volvo engines and stern drives with two Yanmar 8LV 370ZT engines and two accompanying Yanmar ZT370 stern drives.
He bought the Yanmar equipment from Mackay Marine Services Pty Ltd (MMS), an authorised dealer for the sale and servicing of Yanmar marine engines and associated equipment. Power Equipment Pty Ltd imported the Yanmar equipment into Australia and, consequently, was the manufacturer of that equipment.
The Callinans purchased each Yanmar engine and its accompanying stern drive as a package for a single price, that being $62,425 in November 2012. The total price the applicant paid for the two engine and stern drive packages which comprised the Yanmar equipment was $124,850.
Keith Callinan’s son, Daniel then used Quick Fix to undertake trips from Mackay Marina, where it was moored, to islands in the Whitsundays, a trip that would take about three hours each way.
Then came a litany of nine failures.
The first failure in May 2013 involved a complete failure of the starboard engine while Quick Fix was around the Whitsundays.
As a result of that failure, Mr Callinan returned to Mackay Marina using only the port engine.
This return journey took approximately nine hours and subsequent investigations revealed an oil leak from a cracked oil pipe. The starboard engine was replaced under warranty.
The second failure occurred on June 14, with faulty power steering while en route to the Whitsundays. The power steering ram was replaced under warranty on June 19, 2013.
The third failure happened on September 25, 2013 as Mr Callinan was approaching the island he was travelling to that day. He noticed that one of the trim tabs, which are adjusted to keep Quick Fix level, had dropped down and it was replaced under warranty.
He gave evidence that the fourth failure came in November 2014 and it involved an oil leak that caused overheating.
Failures five and six also involved stern drives in June 2015 and May 2016. Mr Callinan described the seventh as a total failure of both engines when he was cruising in the Whitsundays in October 2016. This was caused by faulty exhaust V clamps and this happened twice.
The final failure was the total failure of the replacement stern drives in February 2018.
At the time of the trial, Quick Fix had not been used since the failure of the replacement stern drives in February 2018 with the vessel stored on a hard stand in Mackay.
Appeal Justice Cooper said the persistent nature of the failures of the Yanmar equipment, and particularly the catastrophic failure of both stern drives on two occasions — one after 180 hours of operation, and the second after 220 hours of operation — led to the conclusion that the failure to comply with the guarantee of acceptable quality has not been, and cannot be, remedied by repair or replacement.
“Based on the previous failure of two sets of stern drives, there is no reason to think that replacing the stern drives a second time would render the Yanmar equipment of acceptable quality,’’ he said.
“A reasonable consumer would also have regard to the likelihood that the failures would increase the cost of servicing and repairing the Yanmar equipment, and the amount of time the vessel could not be used when servicing or repairs of the Yanmar equipment was carried out, but in my view this would be regarded as having less impact on the utility of the equipment than the impaired reliability and reduction in useful life.
“For these reasons, I conclude that a reasonable consumer would consider that the utility of the Yanmar equipment was reduced by at least 50 per cent because of the failures.”
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