Reference No. MVD 156/06 (AK) [2006] NZMVDT 144 (12 September 2006)

Motor Vehicle Disputes Tribunal of New Zealand

[Index] [Search] [Download] [Help]

---

Reference No. MVD 156/06 (AK) [2006] NZMVDT 144 (12 September 2006)

Last Updated: 29 February 2008

Decision No. AK 96 /2006

Reference No. MVD 156/06

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN XXXXX AND XXXXX XXXXX

Purchasers

AND XXXXXXXXXXXXXXXXXXXX

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr H T D Knight – Barrister, Adjudicator.
Mr J W Farnsworth, Chartered Loss Adjuster, Assessor.

HEARING at AUCKLAND on 30 August 2006

APPEARANCES

Mr XXXXX appeared in person.
Mr V XXXXX appeared on behalf of the 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 J W Farnsworth, as its expert assessor to assist it in its determination of this complaint. Mr Farnsworth is a qualified mechanic and a Motor Vehicle Assessor who has been in private practice for a considerable number of years.

[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 as applied by the Tribunal.

Transaction

[5] This dispute arose out of the sale and purchase of a 2001 BMW motor car, Model 520i, registered number XXXXX, now XXXXX. It is a 2141 cc vehicle, one which was imported as a second-hand vehicle from overseas. The purchase price was $22,060 and it was purchased on 28 October 2005 at an odometer reading of 68,200 kilometres. The Purchaser laid a complaint on 14 July 2006 and gave the odometer reading then as 71,930 kilometres, so that eight and a half months had elapsed since purchase, and the vehicle had travelled 3,730 kilometres.

[6] At the time of purchase the vehicle was inspected on behalf of the Purchaser by the AA. Under heading of ‘General Condition’ it was described as ‘satisfactory’ but the Inspector made the following comments:

“Evidence of oil on the bottom engine tray – clean and check k- slight rattle left hand rear. Left rear speaker grill attached. Neat and tidy vehicle.”

[7] In the ‘Defects Requiring Urgent Attention’ it was noted that the lubricant in the form of the engine oil was discoloured and that the power steering fluid level was low. It was also noted that there was wear on the right-hand front tread on the inner edge. There were also comments made about miscellaneous minor dents and scratches, acceptable for the age and mileage of the vehicle. Under the heading ‘Engine’ lubricants were highlighted, (presumably for the reason given by the Inspector in his comments). There was also an emphasis placed under ‘Steering’ in respect of the power steering, which again would relate back to the defect noted that the oil level was low. There was also an emphasis in respect of the tyres and again that would relate back to the Inspector’s comments already noted.

[8] An invoice from XXXXX,dated 9 June 2006, was produced with respect to an oil leak. It stated as follows:

“XXXXX
XXXXX
XXXXX

Labour charge $490.00
ECU Scan/Diagnose/Reset 40.00
Rocker Cover gasket set 47.50
R/C bolt seal 48.00
Oil filter remote housing gasket 17.72
15W40 Super Sport Engine Oil 56.00
M52 1995>Oil filter 17.95

Crankcase ventilator valve 150.46

Freight 12.00

Right brake is jamming.
Brake fluid needs changing.
GST Exclusive $879.63
GST 109.95

Total $989.58”

[9] The Purchaser also produced an invoice from the same company on the same date for brake repairs quoting $163.13.

[10] As explained to the Purchaser at the hearing, the Tribunal is not prepared to hold the Trader liable for that invoice because the brakes are very much a wear and tear item – they depend very much on how the vehicle is driven. It is impossible for the Tribunal to make a finding that the vehicle was not of acceptable quality because of the necessity to make that repair seven and a half months after purchase, especially as it had passed a Warrant of Fitness at the time of sale and another one six months later. That claim is therefore formally dismissed.

[11] The other matter claimed by the Purchaser was for the oil leak referred to above, and an invoice for the two rear tyres for an amount of $450, a wheel alignment for $50.00 and the filing fee of $50.00 paid to the Ministry of Justice for laying the complaint.

[12] In respect of the tyres, this is again an item which is very much dependent on the driving of the car and the amount of inflation in the tyres. Having spoken to the Purchaser on this issue, it does appear that while he checked the tyre pressure on a regular basis, he did not actually inflate them until the last time he checked which was within a month of the hearing, again seven and a half months after purchase.

[13] With the greatest respect to the Purchaser this claim must also be dismissed.

[14] Referring to the oil leak problem, the Trader produced an invoice to show that he had had the power steering oil leak, which was an oil leak noticed by the AA, because it was diagnosed by XXXXX Ltd, on behalf of the Trader. The invoice stated as follows:

“XXXXX Ltd

XXXXX

Oil 66.75
Oil Filter 29.72
Freight 7.50
P/Steering hoses 28.00
P/Steering hoses 34.80
Hose clips 11.40
P/Steering oil 7.50

Service vehicle, run with engine flush.
Replace oil and filter. Replace p/steering leaks.
Replace hoses as required. Clean and recheck. 120.00

Sub-total $305.67
Tax Total 38.22

Total $343.89

[15] The Tribunal is satisfied that the oil leak which occurred in January is not the same oil leak which the Purchaser noticed at the time of purchase and which was identified by the AA. It is something which developed later and at that time it was just a few drops.

[16] It is impossible to say exactly where the oil leak that now requires repair is. It just gives an indication of the repairs that will be required in this vehicle. Hence there is no identification of the oil leak which was referred to in January, which has been repaired. The only certain thing about the oil leaks is that the power steering oil leak which was noticed as an oil leak by the AA and diagnosed by the repairer for the Trader straightaway as a power steering oil leak was repaired immediately.

[17] The Tribunal is satisfied that there is absolutely no connection between those two oil leaks. It does not have any evidence before it that identifies the oil leak now the subject of a proposed repair was in fact in the vehicle at the time it was sold.

[18] In those circumstances, the Tribunal considers it is not possible, in a vehicle which has been imported as a second-hand vehicle into New Zealand, is sufficient to say that as at the date of purchase, the vehicle was not of acceptable quality. Therefore, the Tribunal, although understanding the purchaser’s concern and his linking of matters, the Tribunal does not make the same connection and therefore the complaint is dismissed.

DATED at AUCKLAND this 12^th day of September 2006

H T D Knight

Adjudicator