Reference No MVD 292/05 (AK) [2006] NZMVDT 74 (16 May 2006)

Motor Vehicle Disputes Tribunal of New Zealand

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Reference No MVD 292/05 (AK) [2006] NZMVDT 74 (16 May 2006)

Last Updated: 6 September 2007

Decision No. AK 54/2006

Reference No. MVD 292/05

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

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

Purchaser

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

DECISION

[1] This matter was originally heard on 24 January 2006 and a Minute on Adjournment was issued to the parties dated 7 February 2006. A copy of that Minute on Adjournment is attached to this decision and incorporated in it as part of the decision.

[2] Since the issuing of that Minute on Adjournment, the Purchaser forwarded into the Tribunal, as requested, a Note from the Manager of ************* as to the reason for the repair to the middle muffler which read as follows:

“********** “Pipe was broken at middle muffler.
Muffler was corroded and pipe was rusty.

Replaced. Connecting pipe and middle muffler. $275.63”

In respect of that muffler part, the Tribunal has in fact seen the part and is quite satisfied that the condition of that muffler was such that the AA should never have issued a Warrant on this vehicle.

[3] Part of the muffler fell off almost immediately after the car had been delivered to the Purchaser and then there was the further problem with the middle muffler. That report, together with further costings on the boot lock assembly were forwarded to the Trader according to the Department’s file on 23 February 2006.

[4] The Trader failed to reply to that information until a letter dated 1 May 2006

[5] Despite the Minute on Adjournment which was forwarded explaining that this case and dispute has nothing whatsoever to do with the sale of the vehicle but the misrepresentation of it at the time of sale, the Trader was still arguing that it was sold at no reserve and therefore no liability.

[6] Once again, the Tribunal draws attention to paragraphs 3,4,5, 6, and 7 of the Minute on Adjournment, which explains that although the vehicle may have been sold at auction the Trader is responsible for any representations made pursuant to the terms of the Fair Trading Act 1986 which still applies to the transaction.

[7] This vehicle was misrepresented by the Trader as having “no mechanical faults” and “immaculate condition”. The vehicle was also described as having no missing parts.

[8] It is quite clear that the muffler on the vehicle was faulty and the Tribunal refers to the original ********* report dated 9 November 2005 which read as follows:

“To Whom it May Concern:

************* inspected Puegeot Rego ********** on 10 November 2005 for an exhaust leak.

We found the rear muffler had broken away from the exhaust pipe to old-age.
The pipe was quite rusty and had been repaired before, the only damage to the muffler is at the front join after it had hit the road after breaking away from the rest of the exhaust.”

Hence it is clear from that report that the muffler has not been damaged by the Purchaser’s driving of the vehicle as suggested by the Trader.”

[9] The Trader’s letter which came in on 1 May 2006 read as follows:

“ATTENTION: Case Manager

Dear or Sir or Madam,
The vehicle purchased by Mr ********** was purchased at a ‘no reserve’ auction, in which he was the top bidder with the reserve price met. There was no negotiation after the sale. The vehicle was complied at the AA Compliance Centre in ************* and they passed the exhaust as being to Warrant of Fitness standard. It is fair for a ten year old car to have some corrosion around the exhaust and when this is the case if scraped along the curb the exhaust could break and need replacing. The exhaust was fine when he left with the car.

I have located the more expensive part and will fit this to the car for Mr **********, as we have traded a car with the same boot lock which is in good working order.

Sincerely,

********* *************
Managing Director

*****************************”

[10] The Tribunal reminds itself that this incident occurred when the vehicle was sold on 3 November 2005 so several months had now elapsed. The Trader’s performance in respect of the dispute has been anything but impressive. Firstly, he misrepresented the vehicle, then made up various excuses as to why the muffler should have fallen off, including the allegation that the Purchaser damaged it himself. The Trader then failed to appear at the hearing without good cause.

[11] Even after the Minute of Adjournment was forwarded out at the beginning of February, it took another three months for the Trader to respond.

[12] Unfortunately, the behaviour of this Trader is such that the Tribunal considers that having failed to repair the vehicle as requested by the Purchaser without any cause whatsoever, the Tribunal cannot rely upon him in this instance to attend to the repair he is now offering after this considerable delay in anything like a timely fashion.

[13] Because of the delay that has already occurred, the Tribunal will deal with this matter by awarding sums of money to the Purchaser with which he can then have the vehicle repaired.

[14] ************************** gave a quotation dated 14 February for the repair to the vehicle’s ongoing block assembly at $580 plus GST. The Tribunal called to ascertain how much the fitting cost would be and has ascertained that the total cost of fitting the tailgate block assembly is as follows:

Price $580.00
GST on the price 72.50
Fitting cost with one hour’s labour including GST 105.41
Sub Total $757.91
The cost of the muffler was quoted by ********* at $275.63
Total $1033.54

[15] There will be an order that because of the breach of the Fair Trading Act, it is emphasised to the Trader, not the Consumer Guarantees Act 1993, the Trader is to pay the Purchaser a total sum of $1033.54 by way of damages for replacement of the muffler and the tail boot block assembly.

[16] The Purchaser is advised that if the Trader fails to meet that obligation, then he is able to register the order in the District Court at Auckland and enforce it as a judgment of that Court.

DATED at AUCKLAND this 16^th day of May 2006

H T D Knight R G Lewis
Adjudicator Assessor