1. When Mr Bas picked up the truck on 7 September 2013 from Preston Motors Epping, he noticed a funny brake smell but assumed it was normal for a new truck. However, the truck started to shake. He returned it to the Epping Workshop.
2. According to the Workshop service record, a leaf spring had sagged and was lacking tension. It was replaced under warranty. The vibration was noted but the Workshop was unable to determine the fault. Further investigation was required. According to Mr Bas he was advised replacing the leaf spring should fix the shaking.
3. On 16 September he picked the truck up, discovered it was still shaking and returned it to the Epping Workshop. According to service records, a Mr Tim Williams from Foton Australia identified the problem as being with the front brakes holding on. Addressing this issue fixed the shaking problem. According to the service records, this work involved removing and refitting the dashboard. All work was done under warranty.
4. According to Mr Bas, after the Applicant picked the truck up the dashboard and the plastic surround for the gearstick became loose. At this time the 1500 km service was done, for which there is apparently no charge. Whatever the state of the plastic surrounds, the Applicant continued to use the truck.
5. Soon after, a driver using the truck noticed a coolant leak under the truck on the road. The driver also noticed that the steering was pulling to the left. Having lost faith in the Epping workshop, the Applicant took the truck to Preston Motors Dandenong Workshop. The Dandenong Workshop apparently addressed the coolant issue. It was not clear whether there was a fault given there is no record of parts used or coolant replaced. There was a note of a touch-up to the truck's paint, perhaps damaged by the coolant. The steering issue was fixed by performing a wheel alignment. At the same time the Dandenong Workshop replaced a seat belt stalk. It appears this addressed a seatbelt issue which became the subject of a recall. The Applicant only learnt of the potential seatbelt issue when it received a recall letter from Foton trucks Australia dated 23 October 2013. The letter advised that a very small number of vehicles had experienced a seatbelt issue.
6. The Applicant then used the truck without issue.
7. In March or April 2014 the Applicant bought an Isuzu truck which has operated without problems.
8. On 23 May 2014, about eight months since the last of the above problems, Mr Bas took the truck in for a normal service. While according to service records, this was the 20,000 km service, it appears from later records that the truck had done about 11,000 km.
9. A week later, the truck broke down due to a failure within the clutch mechanism. Foton Assist towed the truck to the Dandenong Workshop. Service records show the clutch slave cylinder pushrod was missing. It was replaced under warranty. At the same time the cluster trim was refitted. On 7 June 2014, Mr Bas picked the truck up.
10. On 10 June 2014 the truck showed a high engine temperature. According to workshop service records a stone off the road had put a hole in the radiator.
11. In an e-mail to Foton Australia dated 10 June, Mr Bas described the truck as unreliable for his business and him being sick and tired of dealing with its problems. Mr Bas also objected to being charged for the radiator. In his view, if a small stone could damage it, it should be better protected from the road.
12. The problem was repaired at a cost of $1099.35 On 16 June 2014, Mr Bas picked the truck up and paid the invoice.
13. To rub salt into the wound, on 17 June 2014 the truck broke down, due to a battery fault. It took a week for a new battery to be found.
14. During that week, Mr Bas wrote a letter to Foton trucks Australia setting out the truck history and his complaints. By this stage he did not want to collect the truck from the Dandenong workshop. It was only when the Workshop said it would park the truck out on the street that he picked it up.
15. However, when the Applicant's driver picked the truck up, on driving back to the warehouse, according to Mr Bas, warning lights showed and it suddenly "flamed out on the road". It was restarted after 20 minutes and taken to the Applicant's workshop where it still showed warning lights.
16. On 8 July 2014, Foton trucks Australia collected the truck from the warehouse to repair it. Foton returned it four or five weeks later and it has sat in the Applicant's warehouse since. The evidence before me did not allow findings as to the problem at that stage, any repairs by Foton, why it took weeks to return or the truck's current condition.

1. The Australian Consumer Law ("ACL") applies to the transaction. The Applicant acquired the truck as a "consumer", within the meaning of section 3(1)(a)(i) of the ACL, because the Applicant paid under $40,000.
2. Preston Motors supplied the truck in trade or commerce, because it is in the business of selling vehicles. Therefore action under the ACL may be taken against it as a "supplier" under s 259 of the ACL.
3. I found that Foton Australia is a "manufacturer" as defined by s 7(1)(e) of the ACL. While it is not literally a manufacturer of the truck, it imported the truck into Australia when at the time of importation the manufacturer of the goods did not have a place of business in Australia. This finding is based on Foton Australia's evidence at the hearing, which included that Mr Stewart and Mr Stride were unaware of the manufacturer, which operates in China, having a place of business in Australia. Therefore action under the ACL may be taken against Foton Australia as a "manufacturer", under s 271 of the ACL.
4. The truck is subject to a consumer guarantee under s 54 of the ACL that it be of acceptable quality in that it be fit for all the purposes for which it is commonly supplied, acceptable in appearance and finish, free from defects, safe; and durable as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable, having regard to the nature of the goods, the price of the goods (if relevant), any statements made about the goods on any packaging or label on the goods, any representation made about the goods by the supplier or manufacturer of the goods and any other relevant circumstances relating to the supply of the goods.
5. The truck is also subject to a consumer guarantee under s 55 of the ACL that it is reasonably fit for the purpose which Mr Bas disclosed to Preston Motor's salesman, to carry stone for business purposes within the weight specifications of the truck.

1. Under the ACL, none of the failures above on its own was a "major failure" which can form the basis for VCAT ordering Preston Motors to refund the truck purchase price to the Applicant and accept return of the truck (under s 263) or Foton Australia to pay damages (under s 271).
2. From early September to about 9 October 2013, the Applicant experienced failures with the truck (sagging leaf spring, gripping front breaks (apparently the cause of the vibration), loose dashboard and gearstick surround and the coolant issue). Preston Motors in co-operation with Foton Australia repaired each failure within a reasonable time. There was an obligation to do so under warranty and under s 259 of the ACL. While the Applicant was not aware of the potential problem, Preston Motors addressed the seatbelt recall issue.

1. None of these individual failures, from early September 2009 to about 9 October 2009, constitutes a major failure as defined under s260 of the ACL (see below). With respect to s 260(a), it cannot be said the truck would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the individual failures. The reasonable consumer in business is aware such failures will be repaired under warranty and takes the risk. Neither do any of these individual failures make the truck substantially unfit for purpose under s 260(b) to (d) or unsafe under s 260(e).

1. Neither do these failures taken together constitute a "major failure" as defined by s 260 of the ACL. Section 260 says a failure to comply with a guarantee that applies to a supply of goods (including the guarantees under ss 54 and 55) is a major failure if:
   • (a) The goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
   • (b) The goods depart in one or more significant respects:
     1. if they were supplied by description - from that description; or
     2. if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or
   • (c) The goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
   • (d) The goods are unfit for a disclosed purpose that was made known to:
     1. the supplier of the goods; or
     2. a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;

and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or

(e) The goods are not of acceptable quality because they are unsafe.

1. Again, with respect to s 260(a), it cannot be said the truck would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures taken as a whole. The reasonable consumer in business is aware such failures will be repaired under warranty and takes the risk. This applies to 'teething problems' experienced in the month after purchase.
2. Of course, if the reasonable consumer could see the future, and see problems that would occur with a particular good, the consumer would buy a different good. However, if the reasonable consumer was not prepared to purchase any truck because trucks may experience a series of faults soon after purchase, which would be repaired under warranty, then the reasonable consumer would not purchase any truck.
3. Neither do any of these failures in early September 2009 to about 9 October 2009, individually or together, cross the threshold to make the truck substantially unfit for purpose under s 260(a) to (d) or unsafe under s 260(e). While the truck was off the road for some days in the period, Preston Motors, in co-operation with Foton Australia, responded to each issue quickly, even though it took a little time to diagnose the vibration problem.
4. From October 2013 until late May 2014, about eight months, the Applicant used the truck to deliver stone without incident. This included a routine service on 23 May 2014.
5. The truck was then beset by problems. The clutch failed a week later and was promptly repaired. Similar to the individual problems described above, that failure was not a major failure.
6. The evidence before me does not cause me to find the radiator failure on 10 June 2014 was due to any failure in the truck. Service records indicate a stone from the road put a hole in it, causing it to fail. This falls within fair wear and tear. As Mr Bas made no claim to expertise in mechanical engineering, I have not accepted his opinion that there is an inherent fault the radiator in that it is not adequately protected against such stone damage. I give some weight to Mr Stewart's evidence that the truck meets Australian design and safety regulations.
7. Similarly, the battery failure a week later does not of itself constitute a major failure under s 260. While it apparently took at least five days for the battery to be replaced, that on its own was not unreasonable.
8. At this point Mr Bas did not want the truck back. However, given the alternative of the Preston Motors Dandenong Workshop leaving it on the street, as it said it would do, the Applicant collected it.
9. I am concerned at Mr Bas' evidence that driving it back to the warehouse warning lights showed on the dashboard and the truck stopped. The driver was able to restart it after 20 minutes and drive to the warehouse, where warning lights still showed. Mr Bas decided the Applicant should no longer use it.
10. Foton Australia collected the truck on 7 July 2014 and after dispute with Mr Bas (who did not want it back) returned it to the warehouse, where it sits today.
11. However, the evidence before me does not give grounds to establish that whatever the last problem was, that was a major failure. There is no evidence to indicate that Foton Australia did not successfully address the issue when it towed the truck away and returned it. While the five weeks is a concern, the evidence before me does not establish the reason for the delay, which perhaps included the dispute between the Applicant and Foton Australia at that stage.
12. Neither am I persuaded that the problems in 2013 combined with any combination of the problems in 2014 constitute a major failure. Given the eight months' apparently acceptable operation before the 2014 problems I do not find major failure under ss 260(b) to (e). Returning to s 260(a), again it cannot be said the truck would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failures taken as a whole. I say again the reasonable consumer takes risks when purchasing goods, which are most often addressed by repair of the goods. A reasonable purchaser would take the risk of teething problems, a period of use and then the misfortune of further problems, most addressed under warranty.
13. When making submissions on this issue, Mr Blakeman cited the VCAT decision Saltalamaccia v Tayser Automotive Group Pty Ltd trading as Nunawading Great Wall (Civil Claims) [2014] VCAT 1463. VCAT accepted that a set of "relatively minor" faults amounted to a major failure with reference to s 260(1)(a). The minor faults were identified between February and July 2013 and rectified in September 2013. However, VCAT also found the rejection period concerning minor faults soon after purchase had "well and truly lapsed" by the time the Applicant complained to the supplier four months after purchase.
14. With respect, I do not agree with the analysis of what constitutes a major fault in that decision.
15. Given my view on this issue, I do not proceed to other issues which would have been relevant if I had found a major failure including whether the rejection period as defined in s 262(2) of the ACL had ended and whether the Applicant had in mid 2014 notified Preston Motors as the supplier of the truck (rather than Foton Australia which it had notified) that it rejected the truck.

1. I dismissed the claim for the cost of the radiator repair because the evidence did not support a finding that stone damage to the radiator was in any way related to poor design or any other failing on behalf of either Foton Australia or Preston Motors.