Reference No. MVD 275/07 (AK) [2008] NZMVDT 39 (27 March 2008)

Motor Vehicle Disputes Tribunal of New Zealand

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Reference No. MVD 275/07 (AK) [2008] NZMVDT 39 (27 March 2008)

Last Updated: 22 April 2008

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Decision No. AK 34 /2008

Reference No. MVD 275/07

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN XXXX

Purchaser

AND YYYY

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr C H Cornwell, Barrister & Solicitor, Adjudicator
Mr J W Farnsworth, Assessor

HEARING at AUCKLAND on 25 March 2008

APPEARANCES

Miss J XXXX, the purchaser
Mr D AAAA, representing the trader

DECISION

Background

[1] On 10 December 2007 Miss J XXXX (“the purchaser) and YYYY (“the trader”) consented to the Tribunal making certain Orders (“the Consent Orders”) to resolve a dispute which had arisen between them concerning the sale to the purchaser of a 2000 Toyota Landcruiser Prado TX registration number RRRR(“the vehicle”) which the trader had failed to repair from August 2007 until the date of the Consent Orders.

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

[3] The trader notified the purchaser on or about 4 March 2008 that it has repaired the vehicle and the purchaser collected the vehicle from the trader on 10 March 2008. There then arose two issues between the parties; first the purchaser claims that the vehicle backfired twice on Sunday 23 March 2008 which has caused her to doubt if the trader has succeeded in repairing the vehicle, and second, the trader has refused to pay the purchaser the sum of $3000 as compensation for her inconvenience in terms of Order 4 of the Consent Orders.

Has the vehicle has been repaired by the trader?

[4] The purchaser says that she recovered the vehicle from the trader on or about 10 March and has driven approximately 600 kilometres in it since then. She says that the vehicle has performed satisfactorily for the past 13 days but she noticed it backfire twice when pulling a horse float up a hill on Sunday 23 March and she is concerned that the trader and its repair agents BBBB and CCCC may not have successfully identified the cause of the vehicle’s problems and repaired them. Neither the trader nor the purchaser had any invoices to show what work the trader had done on the vehicle.

[5] The purchaser had no evidence that the vehicle was still faulty and thus the Tribunal makes no order regarding the repair of the vehicle. The Tribunal drew the purchaser’s attention to her options under the Consumer Guarantees Act if the vehicle was found to still be faulty.

[6] The purchaser gave evidence of having to pay $160 to replace a battery in a loan vehicle which broke down in EEEE and of having supplied the trader’s agent Mr DDDD with the receipt for this battery

Is the trader required to pay the purchaser $3000 as compensation for her inconvenience in terms of the Consent Orders?

[7] The purchaser says that the trader arranged for Mr DDDD, a mechanic at CCCC, to tender the trader’s cheque for $2000 to her when she collected the vehicle but she refused to accept that cheque and maintains that the terms of the Consent Orders provide for the payment of $3,000 to her as compensation for her inconvenience. Mr AAAA for the trader said that the Consent Orders were ambiguous and only provided for $3,000 to be paid to the purchaser if the purchaser accepted a less valuable replacement vehicle instead of her repaired vehicle.

[8] The Tribunal is satisfied from reviewing the trader’s letter to the purchaser sent to her on 26 November 2007 that the sum of $2000 was offered as a refund “for the inconvenience caused” and is also satisfied that the Consent Orders are not ambiguous and that the Consent Orders provide for the trader to pay to the purchaser the sum of $3,000 “as compensation for her inconvenience” and that there is thus no substance in Mr AAAA’s claim that the payment of $3,000 was conditional on the acceptance by the purchaser of a replacement vehicle.

The Order

The trader shall within 5 business days of the date of this order pay to the purchaser the sum of $3,160 by Bank Cheque being $3,000 as compensation for the purchaser’s inconvenience in terms of the Consent Orders and $160 for the battery bought by the purchaser for the loan car.

DATED at Auckland this 27th day of March 2008

C.H.Cornwell
Adjudicator

DIRECTION TO THE CHIEF EXECUTIVE, MINISTRY OF JUSTICE.

Section 94 of the Motor Vehicle Sales Act 2003 provides that if an application is made to this Tribunal which falls within its jurisdiction and that in determining the application the Tribunal decides against a motor vehicle trader, the Tribunal must direct the Chief Executive of the Department for Courts (now Ministry of Justice) to publish a notice in the Gazette containing the particulars set out in subsection (2). The notice is only to be published once the circumstances described in subsection (3) have occurred. The Chief Executive is directed accordingly.