Reference No MVD 286/05 (AK) [2006] NZMVDT 49 (4 April 2006)

Motor Vehicle Disputes Tribunal of New Zealand

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Reference No MVD 286/05 (AK) [2006] NZMVDT 49 (4 April 2006)

Last Updated: 1 September 2007

Decision No. AK 033 /2006

Reference No. MVD 286/05

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

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

Purchaser

AND **************** LTD

T/A ****************

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

FIRST HEARING at AUCKLAND on 31 January 2006 when the matter was adjourned.
SECOND HEARING at AUCKLAND on 20 March 2006

APPEARANCES

First Hearing: The Purchaser appeared in person.
Ms S **************** appeared in support of the Purchaser.
Ms S *********** and Mr P ******* appeared in support of the Trader.

Second Hearing: The Purchaser appeared in person.

Mr ******* ******* 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 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 particular dispute, which arose out of the sale and purchase of a 1996 Honda Accord Station Wagon, registered number *******, has already been the subject of a hearing, which was held on 31 January 2006.

[6] Following that hearing a Note on Adjournment was issued which set out the actual factual matters which had occurred up until the time of the hearing. As set out in paragraph 17 onwards in that Note on Adjournment, the Tribunal was left firstly with certain reservations as to how the vehicle had in fact been repaired, because it had not been repaired by a transmission specialist, and the paper-work which the repairer had supplied was frankly pathetic. It was no wonder that the Purchaser had concerns about the repair itself.

[7] The Trader having on that occasion, when the vehicle was received for repair, on advice from his repairer, carried out a transmission flush when a far more extensive repair was required.

[8] However, following that Note on Adjournment, the Trader obtained a full invoice from the original repairer and the repairer also noted on the invoice as follows:

“The gearbox fitted has a six month warranty. The gearbox was purchased from Strong for Honda. The problem with vehicle was an oil leak. The diff housing had split, which is part of the gearbox. It was not repairable, so we fitted a second-hand unit.
Signed: J *********** (Director).

[9] In the Note on Adjournment the Tribunal advised the Purchaser that she should obtain a report as to the performance of the vehicle from a transmission specialist, preferably one who had a knowledge of Hondas and then submit the report to the Tribunal.

[10] The Purchaser did not have any success whatsoever in obtaining a report from a franchise holder. This is quite common in the motor industry because franchise dealers do not wish to become involved with vehicles which have been imported second-hand from Japan because they are unaware of the maintenance and service history of the vehicle in Japan.

[11] The Purchaser, therefore, was unsuccessful in obtaining either an inspection or report from a Honda franchise holder.

[12] However, the Purchaser then took the vehicle to a transmission specialist in Auckland, which has frequently been involved in cases before the Tribunal, because of the high standard and reputation of that particular repairer.

[13] The repairer would not provide a written report for the Purchaser, because he did not intend to charge her, which he did not do, but the repairer was available to the Tribunal on the phone. Therefore by way of a conference telephone system, the repairer gave evidence before the Tribunal, and explained that he had test-driven the vehicle on the motorway and found the performance of the transmission was satisfactory except for a little harshness in the change. He had experienced this previously with repairs carried out to Hondas, and had found that it could be overcome by adding an additive.

[14] He actually recommended the additive to be used, a Blue Guard “Black”, the cost of which he expected to be about $30.00.

[15] There was still outstanding also an issue as to not only the dependability of the repair, which is now warranted and has been tested by one of the leading transmission specialists in Auckland, but also there is an issue as to whether or not the Trader having repaired the transmission in the first instance by way of a transmission flush only, left the Purchaser with a right to reject.

[16] There was no need to advance to the second issue because the Purchaser having taken the vehicle to the particular transmission specialist and having had that report given verbally over the phone to the hearing, was then prepared to accept the vehicle.

[17] The Purchaser explained that the reason why she had rejected it initially was because in the first instance it had not been fully repaired, but more importantly, when it was finally repaired, no invoices were made available to her from which the extent of the repair could be ascertained.

[18] However, now provided with the invoices and being satisfied as to the nature of the repair, the Purchaser was prepared to withdraw her application for rejection, which she did.

[19] However, it was explained to the parties that the Tribunal would still issue this decision, which it does. It awards the Purchaser firstly, the sum of $50.00 for the filing of the complaint which, from her point of view, it was necessary to do because she was not given any particulars of the repair until that second hearing.

[20] In addition, the Tribunal formally awards to her the sum of $30.00, which in any event the Trader had undertaken to pay to the Purchaser, or to the transmission specialist. This matter is left to be sorted out between the parties, subject to the orders made above.

DATED at AUCKLAND this 4^th day of April 2006

H T D Knight R G Lewis
Adjudicator Assessor