Reference No. MVD 210/07 (AK) [2007] NZMVDT 182 (1 October 2007)

Last Updated: 14 February 2008

Decision No. AK 159/2007
Reference No. MVD 210/07

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN XXXX

Purchaser

AND XXXX

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr C H Cornwell, Barrister & Solicitor, Adjudicator

Mr R G Lewis, Registered Engineering Associate, Assessor

HEARING at AUCKLAND on 1 October 2007

APPEARANCES

Mr XXXX, the purchaser
Mr XXXX, representing the trader
Mr XXXX, support person for the trader
Miss XXXX, support person for the trader

INTERIM ORDER

Introduction

[1] Mr XXXX (“the purchaser”) purchased a 2001 Jaguar S Type registration number XXXX (“the vehicle”) from XXXX (“the trader”) on 26 May 2007 for $33,000. The vehicle had travelled 16,236 kilometres at the date of purchase according to the Supplier Information Notice and the Vehicle Sale and Purchase Agreement signed by the parties. The purchaser claims that water entered the vehicle’s boot causing the parking sensors to fail and that the headlining in the vehicle has collapsed and thus, the vehicle was not of acceptable quality under the Consumer Guarantees Act 1993. He seeks an order that the trader repair these items at it’s expense.

[2] Pursuant to clause 10 of Schedule 1 of the Motor Vehicle Sales Act 2003 the Tribunal has appointed Mr R G Lewis, as expert assessor to assist in the determination of the complaint. Prior to the hearing Mr Lewis took the oath required by clause 10(2) of Schedule 1 to that Act.

The Purchaser’s evidence

[3] The purchaser says that about three weeks after purchasing the vehicle its parking sensors failed to operate and, on inspecting the under floor area of the boot he discovered water lying in the boot of the vehicle to a depth of 10 to 12cm which had covered the parking sensor controller causing it to fail. He took the vehicle to his garage who removed a plastic plug to allow the water to drain out. At the same time the vehicle’s head lining began to sag above the rear passenger seats and has since completely collapsed into the vehicle.

[4] He says he contacted the trader and arranged to take the vehicle back to the trader about 6 August. The Trader’s director Mr XXXX agreed to repair the boot to prevent further water leakage into it, to replace the parking sensor and to fix the head lining. After the trader had kept the vehicle for a week the purchaser telephoned to enquire as to progress and Mr XXXX told him that the boot had been repaired and the two other jobs would be done within a few days. Three days later Mr XXXX telephoned the purchaser and told him that the purchaser’s problems with the vehicle were common faults with Jaguar vehicles and that the purchaser would have to pay to have the vehicle repaired. Moreover Mr XXXX required him to accompany him to collect his vehicle from XXXX at XXXX to which the trader had taken it to be repaired and to pay XXXX the costs incurred in resealing the boot of $75.94 (Exhibit 1) which the purchaser did with some reluctance.

[5] He says that XXXX have told him that the cost of a replacement sensor controller sourced from the UK will be $360 plus GST plus fitting costs and he understands from XXXX that the cost of replacing the headlining will be $6500 but he does not have any written quotation for this work of for the cost of fitting the parking sensor controller.

The Trader’s Evidence

[6] Mr XXXX says that he promised to repair the vehicle when the purchaser brought it to him on 6 August and he took the vehicle to XXXX in XXXX, a Jaguar specialist repairer. He says the service manager at XXXX Motors told him that loose rubber seals in the boots of Jaguar cars had been the subject of a recall notice and although he says he tried to find details of the recall on the internet he was unable to do so. He considered, however that if water leaked into the vehicle from other places he might end up having to repair those leaks as well and that is why he decided not to pay the cost to repair the leak.

[7] He says the collapse of the headlining is a common problem in Jaguar cars and affects cars which have been imported from Singapore. He says he does not consider that he should be liable to repair it because it was a matter of “wear and tear” and the vehicle was he says 6 years old. The head lining can be repaired for about $400 by a firm called XXXX. He had used them many times.

The Orders

[8] The Tribunal made the following interim orders:

1. That the hearing of the purchaser’s application is adjourned until Tuesday 23 October 2007 to a time to be advised to the parties in writing by the Tribunal to enable the purchaser to obtain written quotations for the cost of (a) supplying and fitting a new parking sensor controller and (b) reaffixing the headlining, both of which he seeks to recover from the trader.
   
2. The purchaser is to send copies of the quotations he obtains to the trader and to the Tribunal as soon as possible and before 12 October 2007.
   
3. If the parties decide to settle their dispute the applicant is to notify the Tribunal as soon as settlement is reached.
   

Dated at Auckland this 1^st Day of October 2007

C.H. Cornwell

Adjudicator