Stanley v Beacham European Ltd - Reference No. MVD 461/2021 [2022] NZMVDT 28 (11 March 2022)

Last Updated: 24 April 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 461/2021 [2022] NZMVDT 28 BETWEEN ROSALIE STANLEY Applicant AND BEACHAM EUROPEAN LTD Respondent

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Gregory, Assessor

HEARING at Auckland on 22 February 2022 (by audio-visual link)

APPEARANCES

R Stanley, Applicant

A Beacham and K Luu, for the Respondent

DATE OF DECISION 11 March 2022

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

1. Rosalie Stanley’s application to reject the vehicle is dismissed.
2. Beacham European Ltd shall, within a reasonable time from the date of this decision, replace the spare key, ensure that the replacement key functions properly and rectify the fault that is causing the tyre pressure warning message to illuminate

_________________________________________________________________

REASONS

Introduction

[1] Rosalie Stanley purchased a 2017 Jaguar XE 20T for $65,000 from Beacham European Ltd on 1 February 2018. Ms Stanley now seeks to return the vehicle and obtain a full refund of the purchase price because:

• (a) Beacham European engaged in misleading conduct in breach of the Fair Trading Act 1986 (the FTA) by:
  • (i) representing that the vehicle had a “vehicle year” of 2017, when Waka Kotahi NZ Transport Agency records show the vehicle year as 2016; and
  • (ii) failing to disclose that the vehicle was a “repairable” insurance write off from Australia.
• (b) the vehicle has had defects since purchase that means it is not of acceptable quality for the purposes of the Consumer Guarantees Act 1993 (the CGA).

[2] Beacham European agrees that the vehicle has had minor defects since purchase and is prepared to rectify the issues it should have responsibility for. It denies misleading Ms Stanley. It says that the vehicle does have a vehicle year of 2017 and the misunderstanding has been caused by a mistake made by Waka Kotahi NZ Transport Agency. Beacham European also says that it told Ms Stanley that the vehicle was damaged in Australia and had been repaired before it was sold to her.

Relevant background

The vehicle’s age

[3] Ms Stanley says that Beacham European represented that the vehicle was a 2017 vehicle. After she agreed to purchase the vehicle, Ms Stanley says that Alexander Beacham, the managing director of Beacham European, told her that the vehicle had been mistakenly registered as a 2016 vehicle, and Beacham European would resolve that issue to ensure that official records showed that the vehicle was a 2017 vehicle.
[4] Beacham European had been unable to have the vehicle’s registration details changed, and official Waka Kotahi records still show that the vehicle is a 2016 vehicle. Ms Stanley therefore believes that Beacham European has engaged in misleading conduct.

The vehicle’s history as an insurance write off

[5] The vehicle was manufactured in 2016 and first registered in Australia on 30 June 2017. The vehicle was written off for insurance purposes in Australia in about July 2017 due to damage to the driver and passenger side rear panels and the driver side C pillar. The vehicle’s odometer reading at that time was about 141 km.
[6] The vehicle was imported into New Zealand in September 2017 and then repaired by Beacham European. The repairs included repairing an alloy wheel, replacing a tyre, a bumper cover, door glass, a blindspot sensor, a side moulding and repainting the affected areas of the vehicle.[1] The vehicle then passed compliance testing on about 15 December 2017 and was deemed to be safe to use on New Zealand roads.
[7] Ms Stanley then purchased the vehicle on 1 February 2018, when its odometer reading was about 260 km. Ms Beacham says that she did not discover that the vehicle had been written off in Australia until she obtained a report from the “Carjam” website in June 2021, by which time the vehicle’s odometer reading was about 60,000 km.

The alleged defects

[8] Since purchasing the vehicle, Ms Stanley says that she has also experienced several issues.

The spare key

[9] Ms Stanley was given two keys with the vehicle. The spare key did not work shortly after purchase. Ms Stanley says that she has asked Beacham European to rectify that fault, but it has failed to do so.
[10] Beacham European agrees that the spare key is faulty. It says that the key needs to be replaced and a new Keyless Vehicle Module needs to be installed so the spare key works with the vehicle. It has ordered that part and will repair the vehicle.

The infotainment unit

[11] The vehicle’s infotainment unit malfunctioned twice in 2020. Ms Stanley says that the infotainment unit screen flickered, although the screen returned to normal when the vehicle was restarted. Beacham European says that it has since rectified this fault by installing a software upgrade in January 2021.

The tyre pressure warning system

[12] Within six months of purchasing the vehicle, the vehicle’s tyre pressure warning message appeared. The vehicle was returned to Beacham European, which found that the tyre pressures were all within specifications. It could find no fault but replaced tyre pressure sensors.
[13] The tyre pressure warning message promptly returned and has remained illuminated throughout Ms Stanley’s ownership. No fault has been found, and Beacham European says that the message is a “false warning” that it has not been able to fix.

Brake lights

[14] Ms Stanley noticed that the vehicle’s brake lights were not working in about June 2021. She asked Ken Luu of Beacham European to rectify that fault. Although Mr Luu says that he replaced the brake lights, Ms Stanley says that Beacham European did not rectify that fault and she has since paid to have the brake lights replaced.

The issues

[15] The issues requiring the Tribunal’s consideration in this case are:

• (a) Has Beacham European engaged in misleading conduct in breach of s 9 of the FTA?
• (b) If so, what remedy is Ms Stanley entitled to under the FTA
• (c) Has the vehicle been of acceptable quality for the purposes of s 6 of the CGA?
• (d) If not, what remedy is Ms Stanley entitled to under the CGA?

Issue 1: Has Beacham European engaged in conduct that breaches s 9 of the FTA?

[16] Section 9 of the FTA provides:

9. Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[17] The test for establishing a breach of s 9 was set out by the Supreme Court in Red Eagle Corp Ltd v Ellis:[2]

The question to be answered in relation to s 9 ... is ... whether a reasonable person in the claimant’s situation – that is, with the characteristics known to the defendant or of which the defendant ought to have been aware – would likely have been misled or deceived. If so, a breach of s 9 has been established.

The vehicle year

[18] Beacham European provided information from the Australian Department of Transport, obtained under the Australian Freedom of Information Act 1982. That information shows that the vehicle was manufactured in 2016 and was first registered in Australia on 30 June 2017.
[19] For the purposes of the Motor Vehicle Register administered by Waka Kotahi (which is the official record of vehicles registered in New Zealand) and the Consumer Information Standards (Used Motor Vehicles) Regulations 2008,[3] the “vehicle year” is the year of first registration anywhere in the world rather than the year in which the vehicle was manufactured. Consequently, this vehicle should have been recorded on Waka Kotahi records as a 2017 vehicle.
[20] It is not recorded as a 2017 vehicle on Waka Kotahi records. Instead, when the vehicle was imported into New Zealand in 2017, it seems that someone (most likely the compliance inspector) incorrectly recorded the vehicle as having a vehicle year of 2016.
[21] Given this background, I am satisfied that Beacham European did not engage in misleading conduct by representing that the vehicle was a 2017 vehicle. For the purposes of the Motor Vehicle Register and Consumer Information Standards requirements it is a 2017 vehicle. Waka Kotahi records only showed that the vehicle is a 2016 vehicle because of a mistake made when the vehicle was imported. I under that this mistake has now been corrected, and Waka Kotahi now accurately record the vehicle’s age.

The vehicle’s history as a damaged insurance write off

[22] The vehicle was written off for insurance purposes in Australia because it had suffered accident damage. Information provided by Ms Stanley shows that the vehicle was written off in Australia because of damage to the driver and passenger side rear panels of the vehicle and the driver’s side C pillar.
[23] Ms Stanley says that Beacham European engaged in misleading conduct by failing to advise her that vehicle had been imported as damaged and that it was a write-off from Australia. She says she would not have purchased the vehicle if she had been aware of these facts.
[24] To succeed in her claim, Ms Stanley must show that Beacham European failed to disclose that the vehicle was imported as damaged and an insurance write off, and that this failure was misleading or deceptive conduct in breach of s 9 of the FTA. This requires the Tribunal to consider the extent to which non-disclosure or silence can be a breach of s 9 and, if so, whether s 9 was breached on the facts of the present case.
[25] Under the common law principle of caveat emptor (let the buyer beware), a claimant needed to show that the other party had made a positive representation before it could succeed in any claim. Silence or the failure to disclose a material fact could not give rise to a claim.[4]
[26] This principle of caveat emptor has now been displaced by the FTA. Under the FTA, silence or the failure to disclose a material fact can constitute misleading or deceptive conduct.[5] In Des Forges v Wright, Elias J (as she then was) stated:[6]

Silence may constitute misleading or deceptive conduct, but whether it does is to be objectively assessed in all the circumstances ... Conduct may be misleading or deceptive within the meaning of s 9 of the Fair Trading Act 1986 by an omission to provide information even if no obligation to provide such information exists as a matter of general law, outside the standards of conduct required by the Fair Trading Act.

[27] Since Des Forges, the Courts have developed a “reasonable expectation of disclosure” test in several other cases.[7] Under that test, silence or the failure to disclose a material fact can be misleading where, taking account of the circumstances of the particular case, a reasonable consumer would expect the information to have been disclosed.
[28] Having regard to the “reasonable expectation of disclosure” test in light of the general test for whether conduct is misleading and deceptive in Red Eagle, for the reasons that follow, I consider that a reasonable person in Ms Stanley’s situation would expect Beacham European to advise it that the vehicle was classified as imported as damaged and had previously been written off in Australia.

Did Beacham European disclose that the vehicle was imported as damaged?

[29] Beacham European had a legal obligation to disclose that the vehicle was imported as damaged. It was required to disclose and provide a signed Consumer Information Notice (CIN) to Ms Stanley.[8] That CIN was required to state whether the vehicle was imported as damaged.[9]
[30] Mr Beacham says that the CIN, which disclosed that the vehicle was imported as damaged, was displayed in the vehicle and Ms Stanley saw and signed that CIN. After the hearing, I asked Beacham European to provide a signed copy of the CIN (it is required under the MVSA to keep a copy of that document for six years after purchase). It was unable to provide a signed copy of the CIN.
[31] Ms Stanley was not given a copy of the CIN but she agrees that she saw and signed a CIN. She says that she does not remember whether the CIN disclosed that the vehicle was imported as damaged.
[32] As the applicant, Ms Stanley bears the onus of proving all aspects of her claim on the balance of probabilities. Beacham European cannot prove that it advised Ms Stanley that the vehicle had been categorised as imported as damaged, but equally, Ms Stanley has not been able to prove that it failed to do so. Accordingly, I cannot be satisfied that Beacham European has engaged in misleading conduct in breach of s 9 of the FTA by failing to comply with its legal obligation to disclose that the vehicle had been classified as imported as damaged.

Did Beacham European disclose that the vehicle was an insurance write off?

[33] Beacham European had a separate obligation to disclose that the vehicle had been written off in Australia. As recognised by the High Court in McBride Street Cars Ltd v District Court (Dunedin Registry), such information is material to any reasonable consumer’s purchasing decision.[10] It is material information because it enables a consumer to make an informed decision about the purchase — which includes the consumer then being able to make its own enquiries as to the future consequences of the vehicle being an insurance write-off. Those future consequences are important because a stigma attaches to vehicles that have been written off. This stigma can affect the resale value of those vehicles — irrespective of the nature of the damage that caused the vehicle to be written off. It is the fact that the vehicle has been written off that creates the stigma.
[34] Mr Beacham says that he told Ms Stanley that the vehicle had been damaged in Australia. He says that the vehicle had then been repaired and that the price of the vehicle was lower than comparable vehicles because of that damage history. Mr Beacham advised that he could not be certain that he told Ms Stanley that the vehicle was written off in Australia.
[35] I accept Mr Beacham’s evidence that he told Ms Stanley that the vehicle had been damaged in Australia and repaired and that the vehicle’s price reflected that history. Ms Stanley could not recall that precise discussion but conceded that it may have occurred.
[36] However, I consider it likely that Mr Beacham did not tell Ms Stanley that the vehicle had been written off in Australia. Mr Beacham cannot recall whether he made that disclosure and Ms Stanley says that she would have remembered being told that the vehicle had been written off. Given neither party remembers any disclosure of the vehicle having been written off, I consider it likely that no such disclosure was made.
[37] Consequently, I consider that Beacham European did not comply with its obligation to disclose that the vehicle had been written off in Australia. Mr Beacham submitted that his disclosure of the vehicle’s damage and repairs was sufficient. I disagree. The mere fact that the vehicle had been written off is important information in itself, as a stigma attaches to written off vehicles and many consumers will not purchase a vehicle that has been written off, even if that damage has been properly repaired.
[38] By failing to disclose that the vehicle had been written off in Australia, Beacham European has engaged in misleading conduct that breached s 9 of the FTA.

Issue 2: What remedy is available to Ms Stanley entitled to under the FTA?

[39] The remedies available for a breach of the FTA are set out in s 43(3) of the FTA which is as follows:

43 Other orders

(3) The orders are as follows:

(a) an order declaring all or part of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement) relating to such a contract,—

(i) to be void; and

(ii) if the court or the Disputes Tribunal thinks fit, to have been void at all times on and after a date specified in the order, which may be before the date on which the order is made:

(b) if an order described in paragraph (a) is made in respect of a contract that is associated with a collateral credit agreement, an order vesting in person B all or any of the rights and obligations of person A under the collateral credit agreement:

(c) an order in respect of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement) relating to such a contract,—

(i) varying the contract or the arrangement in the manner specified in the order; and

(ii) if the court or the Disputes Tribunal thinks fit, declaring the varied contract or arrangement to have had effect on and after a date specified in the order, which may be before the date on which the order is made:

(d) if an order described in paragraph (c) is made in respect of a contract that is associated with a collateral credit agreement, and if that order results in person A no longer having property in the goods that are the subject of the contract, an order vesting in person B the rights and obligations of person A under the collateral credit agreement:

(e) an order directing person B to refund money or return property to person A:

(f) an order directing person B to pay to person A the amount of the loss or damage:

(g) an order directing person B, at person B’s own expense, to repair, or to provide parts for, goods that have been supplied by person B to person A:

(h) an order directing person B, at person B’s own expense, to supply specified goods or services to person A.

(4) In subsection (3) (a) to (d), collateral credit agreement, in relation to a contract for the supply of goods, means a contract or an agreement that—

(a) is arranged or procured by the supplier of the goods; and

(b) is for the provision of credit by a person other than the supplier to enable person A to pay, or defer payment, for the goods.

(5) An order made under subsection (3) (a) to (d) does not prevent proceedings being instituted or commenced under this Part.

(6) This section does not limit or affect—

(a) subpart 5 of Part 2 of the Contract and Commercial Law Act 2017; or

(b) section 317 of the Accident Compensation Act 2001.

[40] The Supreme Court in Red Eagle sets out the approach to be taken in applying s 43. The Tribunal must consider whether:

• (a) Ms Stanley was in fact misled or deceived;
• (b) Ms Stanley has suffered, or is likely to suffer, loss or damage; and
• (c) Beacham European’s conduct was the effective cause or an effective cause of her loss or damage.

Ms Stanley was misled

[41] As set out above, I find that Ms Stanley was in fact misled by Beacham European’s failure to disclose that the vehicle was an insurance write off from Australia. It was material information, which Beacham European failed to disclose.

Ms Stanley has not suffered and is not likely to suffer loss or damage because of the undisclosed damage and repairs

[42] The normal measure of loss under s 43 is the “difference between the value of what was acquired and the price paid”.[11] That means Ms Stanley will have suffered loss recoverable under s 43 of the FTA if she has proven that she paid more for the vehicle than it was worth.
[43] This Tribunal frequently hears claims regarding imported as damaged insurance write offs and the loss suffered as a result. Common to those cases is evidence that, although some consumers are reluctant to purchase such vehicles and the price of the vehicle is reduced to reflect its history as a damaged insurance write off, there is a market for such vehicles, particularly where the damage that caused the vehicle to be written off was minor and has been properly repaired.
[44] Consequently, the fact that Beacham European did not disclose the vehicle’s history as an insurance write off does not necessarily mean that Ms Stanley has suffered loss. Instead, as the applicant, Ms Stanley bears the onus of proving, on the balance of probabilities, that she has suffered, or that she is likely to suffer loss or damage as a result of being misled about the vehicle’s history.

The valuation evidence

[45] After the hearing, to determine whether Ms Stanley has suffered loss or is likely to suffer loss by purchasing this vehicle because of its status as an insurance write off, I asked the parties to provide evidence as to the difference between the value of this vehicle as a repaired write off and similar vehicles that have not been written off.
[46] The scant evidence provided by the parties does not show that Ms Stanley has suffered, or that she is likely to suffer, any loss in purchasing this vehicle. Beacham European provided the only evidence as to the vehicle’s value as an undamaged new vehicle. It provided a webpage from the www.driven.co.nz website from August 2015, which states that a new Jaguar XE Prestige had a retail price of $78,900. In the absence of any other evidence from the parties as to the vehicle’s value when new, I proceed on the basis that the vehicle’s retail price when new was about $79,000.
[47] Ms Stanley paid $65,000 for the vehicle. The damage that caused the vehicle to be written off in Australia was not severe, and the vehicle was then repaired to a standard that made it acceptable for use in New Zealand. Given the nature of the damage that caused the vehicle to be written off in Australia and the retail price of an undamaged equivalent, I am satisfied that the price Ms Stanley paid, which was a significant discount of the vehicle’s new price, reflected the vehicle’s history as a damaged import that had been written off due to accident damage.
[48] Neither party was able to provide conclusive evidence as to the vehicle’s current value. Ms Stanley was unable to obtain any official valuation for the vehicle. The best she could obtain was an email from an unidentified motor vehicle trader stating:

The value of your car in unmolested condition is around 37/38. However with the dagger in its pedigree, the only way to put a value on it is by unreserved auction with its past status and faults disclosed, in other words, the market price is what someone would be prepared to pay, and that could be I would say 15 to 25k.

[49] Beacham European simply provided a valuation of $28,000, which it performed itself. That valuation is not independent, and for the purposes of understanding the vehicle’s current value, is of limited assistance.
[50] Ultimately, as noted above, the Tribunal cannot simply assume that Ms Stanley has suffered or is likely to suffer loss by purchasing this vehicle and Ms Stanley bears the onus of proving that loss. In the absence of evidence to prove loss, I cannot be satisfied that Ms Stanley has paid more for this vehicle than it was worth or that she has otherwise suffered loss or damage because she was misled about the vehicle’s history as an insurance write off.
[51] Ms Stanley’s claim under the FTA is therefore dismissed.

Issue 3: Has the vehicle been of acceptable quality?

[52] Section 6 of the CGA imposes on suppliers and manufacturers of consumer goods a guarantee that the goods are of acceptable quality. Section 2 of the CGA defines “goods” as including vehicles.
[53] The expression "acceptable quality" is defined in s 7 as follows:

7 Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

[54] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in s 7(1)(a)-(e) of the CGA as modified by the factors set out in s 7(1)(f)-(j), from the perspective of a “reasonable consumer”.
[55] The vehicle has not been of acceptable quality for the purposes of s 6 of the CGA because it has had three faults – the faulty spare key, flickering infotainment screen and the constant tyre pressure warning light – which mean it was not as free of minor defects or as durable as a reasonable consumer would consider acceptable in a near new $65,000 vehicle. Although each of those defects is relatively minor, I am satisfied that a reasonable consumer would not expect such defects to be present in a vehicle of this price, age and mileage.
[56] The brake lights do not breach the guarantee of acceptable quality. It is common for brake bulbs to require replacement from time to time, and these bulbs were replaced more than three years after purchase and were as durable as a reasonable consumer would consider acceptable.

Issue 4: What remedy is Ms Stanley entitled to under the CGA?

[57] The relevant remedies are set out in s 18 of the CGA, which provides:

18. Options against suppliers where goods do not comply with guarantees

(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2) Where the failure can be remedied, the consumer may—

(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:

(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

(ii) subject to section 20, reject the goods in accordance with section 22.

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—

(a) subject to section 20, reject the goods in accordance with section 22; or

(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.

[58] Ms Stanley wants to reject the vehicle because of its defects and Beacham European’s failure to rectify them, but any right she may have had to do so has been lost, because she has taken too long to exercise that right.
[59] The law relating to the loss of the right to reject goods is set out in s 20 of the CGA, which states:

20 Loss of right to reject goods

(1) The right to reject goods conferred by this Act shall not apply if—

(a) the right is not exercised within a reasonable time within the meaning of subsection (2); or

(b) the goods have been disposed of by the consumer, or have been lost or destroyed while in the possession of a person other than the supplier or an agent of the supplier; or

(c) the goods were damaged after delivery to the consumer for reasons not related to their state or condition at the time of supply; or

(d) the goods have been attached to or incorporated in any real or personal property and they cannot be detached or isolated without damaging them.

(2) In subsection (1)(a), the term reasonable time means a period from the time of supply of the goods in which it would be reasonable to expect the defect to become apparent having regard to—

(a) the type of goods:

(b) the use to which a consumer is likely to put them:

(c) the length of time for which it is reasonable for them to be used:

(d) the amount of use to which it is reasonable for them to be put before the defect becomes apparent.

(3) This section applies notwithstanding section 170 of the Contract and Commercial Law Act 2017.

[60] Under s 20(1)(a) of the CGA, Ms Stanley will lose the right to reject the vehicle if she has not exercised that right within a reasonable time. For the purposes of s 20(1)(a) of the CGA, a "reasonable time" is a period from the time of supply of the goods in which it would be reasonable for the defect to become apparent, having regard to the factors set out in s 20(2)(a)–(d) of the CGA.
[61] In Nesbit v Porter, the Court of Appeal shed some light on the statutory words in s 20(2) of the CGA.[12] The Court observed that: [13]

... A reasonable time under s 20 must accordingly be one which suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of a breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually and preferably the supplier, for inspection.

[62] The evidence shows that the faulty infotainment unit was rectified by the software upgrade performed in January 2021. Ms Stanley cannot reject the vehicle due to that fault and can only seek to reject the vehicle due to the existing faults that breach the guarantee of acceptable quality – the faulty spare key and the tyre pressure warning system fault.
[63] Ms Stanley knew about the existence of both faults within six months of purchase (about August 2018). Ms Stanley did not reject the vehicle until about October 2021, after consulting with her lawyer.
[64] The law imposed an obligation on Ms Stanley to pursue any right to reject the vehicle promptly. Ms Stanley did not do so and continued to use the vehicle for more than three years after the spare key and the tyre pressure warning system faults became apparent. Applying Nesbit v Porter, by waiting so long to reject the vehicle, Ms Stanley took too long, and has lost any right she may have had to reject the vehicle. Instead, under s 18(2)(a) of the CGA, Ms Stanley is entitled to have the existing defects that breach the guarantee of acceptable quality rectified within a reasonable time.
[65] The Tribunal therefore dismisses Ms Stanley’s application to reject the vehicle and orders that Beacham European shall, within a reasonable time from the date of this decision, replace the spare key and ensure that the replacement key functions properly and rectify the fault that is causing the tyre pressure warning message to illuminate.

DATED at AUCKLAND this 11th day of March 2022

B.R. Carter
Adjudicator

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[1] See “Stock Costing Summary” dated 3 February 2022 provided by Beacham European Ltd.

[2] Red Eagle Corp Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].

[3] See schedule 2 of the Consumer Information Standards (Used Motor Vehicles) Regulations 2008.

[4] Smith v Hughes (1871) LR 6 QB 597; March Construction v Christchurch City Council (1995) 5 NZBLC 103,878 (HC).

[5] Des Forges v Wright [1996] 2 NZLR 758 (HC).

[6] At 764.

[7] Hieber v Barfoot & Thompson (1996) 5 NZBLC 104,179 (HC); Tuiara v Frost & Sutcliffe [2003] 2 NZLR 833 (HC) at [91]; Guthrie v Taylor Parris Group Cossey Ltd (2002) 10 TCLR 367 (HC) at [21] and [32].

[8] Motor Vehicle Sales Act 2003, ss 14 to 16

[9] Consumer Information Standards (Used Motor Vehicles) Regulations 2008, sch 2

[10] McBride Street Cars Ltd v District Court (Dunedin Registry) [2018] NZHC 111, [2018] NZAR 289.
[11] Narayan v Arranmore Developments Ltd [2011] NZCA 681, (2011) 13 NZCPR 123 at [49].

[12] Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465 (CA).

[13] At [39].