Reference No. MVD 123/07 (WN) [2007] NZMVDT 161 (28 August 2007)

Last Updated: 13 February 2008

Decision No. WN 26/2007

Reference No. MVD 123/07

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN XXXX XXXX

Purchaser

AND XXXX (t/a Xxxx )

Trader

BEFORE THE WELLINGTON MOTOR VEHICLE DISPUTES TRIBUNAL

N Wills - Barrister, Adjudicator
P A Palmer - Assessor

HEARING at WELLINGTON on 6 June 2007

APPEARANCES

Mr Xxxx Xxxx for purchaser
Mr Xxxx Xxxx , dealer principal for trader

DECISION

[1] On 21 October 2006 Mr Xxxx Xxxx (the purchaser), purchased a 1997 Nissan Primera (the vehicle) from Infinity Automotive Limited trading as City Nissan – Hutt Valley (the trader) for $10,000.00. The purchaser has had ongoing problems with the transmission of the vehicle and wishes to reject the vehicle and obtain a refund.

[2] Prior to this hearing Mr Palmer took the oath required of an assessor by Schedule 1, cl.10(2) of the Motor Vehicle Sales Act 2003 as an assessor appointed pursuant to the Motor Vehicle Sales Act 2003. Mr Palmer assisted the adjudicator but the application was determined by the adjudicator alone.

Purchaser's Evidence

[3] Mr Xxxx Xxxx , the purchaser, gave evidence via telephone link from Australia. He gave evidence that he purchased the car on 21 October 2006 from the trader for $10,000.00. On 30 November 2006 problems developed with the transmission. The purchaser took the vehicle back to the trader and the problem was resolved by the trader bypassing a terminal in the gearbox, and in mid-December 2006 the car was returned to the purchaser.

[4] The purchaser's position at the hearing was that he now believes that the defective part should have been replaced rather than bypassed.

[5] The purchaser gave evidence that following the repair there were further problems with the transmission leaking fluid that necessitated him taking the vehicle back to the trader on six occasions. The oil leak was finally remedied in late February 2007 by the trader replacing the wiring loom that contained the bypassed terminal.

[6] On 9 April 2007, the purchaser noticed a further problem with the vehicle. He gave evidence that when driving back from a weekend away the transmission would not shift past third gear and all automatic modes. It was following this problem that the purchaser decided that he would reject the vehicle.

[7] The following day the purchaser wrote to the trader and advised that the problems with the car were serious and that he no longer wanted the motor vehicle. He rejected the motor vehicle and requested a full refund.

[8] The problems listed were that:

"[a] The transmission failed to shift past first gear;

[b] Consistent transmission oil leaks four months after original problem with the transmission caused by substandard repair job on the transmission;

[c] Transmission failure again (9 April 2007). I had to drive the car from Levin to Wellington in third gear – transmission wouldn't respond to manual shifting or shift past third gear in automatic mode."

[9] In response to his letter the purchaser received a telephone call from Mr Xxxx , the trader. Mr Xxxx offered to repair the vehicle however the purchaser decided not to accept that offer.

[10] The purchaser then received a letter from the trader dated 15 April 2007. The letter recorded details of the conversation between the purchaser and the trader about the prospect of repairing the vehicle. The purchaser confirmed in evidence that he had told the trader when he called that the vehicle was currently functioning as it should, but that was because in his view the fault was intermittent and at the time of the trader's call was not evident. He did not accept however that that meant that there was no fault.

[11] The purchaser was unable to resolve the matter with the trader and made his application to the Tribunal.

[12] The purchaser has now moved to Australia for work. The car remains in New Zealand and the purchaser advised the Tribunal that when he last used it, it was driving and functioning normally.

Trader's Evidence

[13] Mr Xxxx gave evidence for the trader. He said that when Mr Xxxx brought the vehicle in with a problem with the transmission, the trader diagnosed the problem and had repairs carried out at a specialist autoelectrician. The problem was that the computer plug that goes under the top of the transmission had too much resistance and some of the terminals were corroded. Repair work was carried out to replace some of the terminals in the transmission with solid wires through to the connector. The repair was carried out this way because the trader was unable to source a new plug or wiring loom without purchasing a complete new transmission which would have been very expensive.

[14] The vehicle was returned to Mr Xxxx but subsequently came back as there was a very small oil leak that Mr Xxxx had noticed. This was extremely difficult to trace and the trader went to significant lengths to remedy the problem. The pan gasket was replaced and the vehicle returned to Mr Xxxx .

[15] Mr Xxxx had reported that a small leak remained so the work was redone and rechecked and the car delivered back to Mr Xxxx . The minor leak appeared again. This time the trader suspected an issue with the gasket and so made up a thicker gasket and straightened the sump pan. The trader carried out extensive road testing, looked for hairline cracks in the castings and laid paper under the vehicle whilst on the hoist for several days to see where the leak could be coming from. Again, the trader could not discover the source of the leak.

[16] In December 2006, the trader became aware of an aftermarket wiring loom that was available for purchase and decided to replace the original wiring loom notwithstanding there did not appear to be any problem with the original repair. Having replaced the wiring loom, the trader formed the view that this may have been the source of the leak because following replacement the leak was no longer apparent.

[17] On 13 April 2007 the trader received a letter from the purchaser saying that he wanted to reject the car because of problems with the gearbox. Mr Xxxx gave evidence that when he spoke to Mr Xxxx about the problem he said that he did not want the trader to look at the problem as it was currently operating correctly. Mr Xxxx said that Mr Xxxx advised that there had been no further problems with the leak.

Further Evidence

[18] Subsequent to the hearing the Tribunal, having reviewed the evidence produced at the hearing sought further information from the purchaser about the existing state of the vehicle. This was required because Mr Xxxx 's evidence was that the gearbox had developed a further problem and it was this problem that was the basis for rejection of the vehicle. Mr Xxxx 's further evidence was that although this problem had led to rejection of the vehicle, the problem was not apparent the day after he had noticed it, the car had not been driven since and no diagnosis of this problem had been undertaken by any mechanic.

[19] In response to this request the purchaser had two independent assessments carried out on the vehicle that is the subject of this application. The first report provided was from Vehicle Inspection New Zealand. This was carried out on 28 June 2007 and noted no problems on the road test. In the comments section the appraiser noted "battery tray corroded – leaking onto transmission engine oil overfull".

[20] The second appraisal was from Xxxx and was carried out on 3 July 2007. It noted "corrosion of battery box and transmission case (check battery charge rate). Check transmission level and condition. OK. Check transmission computer for fault codes. None found. Road test vehicle and check transmission operation. OK. Raise vehicle on hoist and visually inspect. OK."

Consumer Guarantees Act 1993

[21] The Consumer Guarantees act 1993 applies to the sale of the vehicle by the trader to the purchaser. As such there is a guarantee that the vehicle will be of acceptable quality. In essence, the purchaser’s position is that the trader has breached the obligation to supply a vehicle of acceptable quality.

[22] The purchaser says that the vehicle was not of acceptable quality because of ongoing mechanical problems with the vehicle, namely the problem with the transmission and transmission oil leaks following the repair of the transmission and a transmission failure on 9 April 2007.

[23] The initial problems with the transmission were remedied promptly. Relying on the expertise of the assessor, the Tribunal does not have any difficulty with the method of repair. There was an ongoing problem with an oil leak that appears to have been related to that repair and that clearly took some time to diagnose but was remedied by early February 2007.

[24] Between the transmission repair in December and February 2007 when the oil leak problem was resolved, there were no problems with the operation of the transmission.

[25] As the purchaser elected to have those problems repaired by the trader, the purchaser may not now rely on the same problems as a basis for rejection of the car. The purchaser’s rights under the Consumer Guarantees Act 1993 are not cumulative, so the purchaser cannot ask the trader to repair the vehicle and having had the vehicle repaired, then reject it: Cooper v Ashley & Johnson Motors Ltd (1996) 7TCLR 407; (1997) NZBLC 102,108.

[26] The only problem with the vehicle that could form the basis for rejection is the third item listed in the purchaser’s rejection letter: the problems the purchaser had with the transmission on 9 April 2007. The Tribunal accepts Mr Xxxx ’s evidence that he experienced some sort of problem with the transmission in April 2007 but notes that the problem was not apparent a day later. Neither of the two appraisals of the vehicle obtained by the purchaser identified any issue with the transmission. There is no other evidence to establish the nature and extent of the problem.
[27] The Tribunal finds that there is insufficient evidence to establish the nature of that problem and whether it could amount to a failure in the guarantee of acceptable quality.

Conclusion

[28] For the reasons set out above, the purchaser’s application is dismissed. The Tribunal notes that the failure of this application does not preclude a further application should more evidence become available.

DATED at WELLINGTON this day of 2007

___________________
N J Wills
Adjudicator

Mvd 123-07.doc(aw)