Reference No. MVD 094/06 (AK) [2006] NZMVDT 113 (19 July 2006)

Motor Vehicle Disputes Tribunal of New Zealand

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Reference No. MVD 094/06 (AK) [2006] NZMVDT 113 (19 July 2006)

Last Updated: 27 November 2007

Decision No. AK 74 /2006

Reference No. MVD 094/06

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN **************************

Purchaser

AND *****************************

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr H T D Knight, Barrister, Adjudicator.
Mr R G Lewis, F.A.I.N.Z. R.E.A. S.A.E. (International) Member

HEARING at AUCKLAND on 18 MAY 2006

APPEARANCES

The Purchaser appeared in person.
No appearance for Trader.

DECISION

[1] Attached to this decision is a Memorandum marked with a letter 'A' as to the practice and procedure used by the Tribunal.

[2] Pursuant to the provisions of Clause 10 of Schedule 1 of the Motor Vehicle Sales Act 2003, the Tribunal has appointed Mr R G Lewis as its expert assessor to assist it in its determination of this complaint. Attached hereto and marked with a letter 'B' is a memorandum as to his qualifications and experience.

[3] Pursuant to Section 89 of the Motor Sales Act 2003, the Tribunal has jurisdiction to inquire into and determine applications or claims between a Registered Motor Vehicle Trader, or a person who holds himself out as being a Motor Vehicle Trader, and the purchaser of a motor vehicle. In attending to such disputes the Tribunal may apply the provisions of the Sale of Goods Act 1908, the Fair Trading Act 1986, or the Consumer Guarantees Act 1993, as applicable to the circumstances of the specific case.

[4] Also attached and marked with a letter ‘C’ is a memorandum as to the law in respect of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 as applied by the Tribunal.

[5] This dispute arose out of the sale and purchase of a 1993 Isuzu Bighorn 4-wheel drive motor vehicle, registered number *******, a 3100 cc vehicle, one which had been imported into the country as a second-hand vehicle from overseas. It was sold for $8,995 plus a $900 warranty, on 28 October 2005, at an odometer reading of 103,234 kilometres. The Purchaser laid a written complaint on 22 February 2006 and gave the odometer reading at that time as 110,327 kilometres.

[6] On 13 April 2006 the Trader was given a written Notice of Hearing for 18 May 2006.

[7] The Trader was contacted by the Tribunal staff to whom he explained that he expected the matter to settle. The matter did not settle and the Trader did not appear at the hearing as scheduled at 2.00 o’clock in the afternoon. He was contacted once again by the Tribunal staff and explained firstly that he had completely forgotten the appointment; secondly, in any event, his salesman had phoned in sick that very morning. He explained that he had to go out to make a delivery. He was therefore unable to attend the hearing.

[8] The Tribunal elected to go ahead and take the Purchaser’s evidence because he had obviously taken time off work to attend the hearing. The Trader had time to go and do a delivery but not to attend the hearing, which meant that the Purchaser was being severely inconvenienced.

[9] A draft of this decision was therefore done on the basis that the Trader was given time to comment on it and, if he wished, he was given an opportunity to ask for a hearing.

[10] The Tribunal had earlier requested both parties to supply a chronology of events with supporting invoices and quotations. The Purchaser, very helpfully, supplied this evidence in respect of his claim.

[11] The evidence given by the Purchaser was that at the time of purchase the CD cartridge was missing from the vehicle. This was noticed by the Purchaser and was drawn to the attention of the Trader who explained that one would be put in the vehicle before delivery.

[12] The CD cartridge was never installed and according to the Purchaser the Trader was asked four or five times about this matter, with the Trader still promising it but not delivering.

[13] The Purchaser, prior to the hearing, was asked to obtain a quotation for that repair, which he did. The quotation from ********************, showed the cost of a Clarion CD Cartridge, CDC635/655, to be $89.95.

[14] The Purchaser complained that the electric windows in the rear door were locked. The Purchaser’s evidence was that he had asked for this to be attended to “a number of times” but this was never attended to by the Trader.

[15] The Purchaser produced a quotation for that repair at a figure of $293 each door, inclusive of GST, i.e. a total of $586.00; he also produced a report cost for that quotation and inspection of $46.07 inclusive of GST.

[16] The Purchaser took a water pump problem into the Trader to have repaired on 6 December 2005. The Purchaser understood the Trader had agreed to repair this problem, which he did, but when the Purchaser was told to uplift the vehicle from the repairer the repairer then demanded payment of $690.53 before the vehicle could be released. The Trader had told the Purchaser to collect the payment from the warranty company but, as the Purchaser pointed out, this could not be done because he had not approached the warranty company on this matter as the Trader had indicated that he was having the vehicle repaired.

[17] This problem evidenced itself by a rumbling noise in front of the engine. It was taken to the Trader to resolve.

[18] The Purchaser, on the Trader’s direction, took the vehicle to *********************, who submitted an account for the repair of $690.53 and the notation on that account read as follows:

“Inspected vehicle for rumbling noise in front of engine. Eliminated possible causes by removing, individually, the engine drive belts. Traced fault to a worn and damaged water pump shaft bearing. Removed the radiator fan shroud and stripped off the viscous cooling fan coupling. Removed the power steering pump assembly and the crankshaft pulley. Removed the engine timing covers in order to gain access to the water pump. Drained the cooling system and removed the faulty water pump. Cleaned the water pump aperture and fited(sic) new water pump and gasket. Refitted the engine timing covers, crankshaft pulley and power steering pump. Refitted the viscous cooling fan coupling and the radiator fan shroud. Reconnected the engine drive belts and tensioned to spec. Topped up the cooling system with the correct anti freeze content and bled the cooling system. Road test vehicle, ALL OK. Replaced air filter element (blocked).”

[19] The Tribunal is of the respectful opinion that this vehicle was not of acceptable quality at the time of sale because of the several faults noted, but particularly in respect of the rumbling noise in the front of the engine which developed very shortly after purchase and required the repairs listed above. Therefore, the Trader is ordered to pay for those repairs. This is what the Purchaser understood the position to be at the time he was asked to take the vehicle into that repairer.

[20] The Tribunal notes that it is clear from that repair and report that that water pump had been worn for some time and the air filter element had been blocked for some time. The other matters were incidental requirements when that type of repair is being carried out.

[21] Therefore, the amounts to be paid by the Trader to the Purchaser are as follows:

1. CD Cartridge (para 13) $89.95
2. Rear Electric Windows (paras 14-15) $586.00
3. Cost of report on rear windows (para 15) $46.07
4. Water pump $690.53

_______

Total $1412.55

_______

[22] The Trader is therefore ordered to pay the Purchaser the total sum of $1,412.55 as listed in Paragraph 21 hereof.

DATED at AUCKLAND this day of June 2006

__________________
H T D Knight
Adjudicator