Bribiesca v Fortis Cars Limited t/a Fortis Wholesale Cars Limited - Reference No. MVD 108/13 (Auckland) [2013] NZMVDT 100 (19 September 2013)

Last Updated: 16 October 2013

Decision No: 84/2013
Reference No. MVD 108/13

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN ANNA-MARIA BRIBIESCA

Purchaser

AND FORTIS CARS LIMITED T/A FORTIS WHOLESALE CARS LIMITED

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr C H Cornwell, Barrister & Solicitor, Adjudicator
Mr G Middleton, Assessor

HEARINGS at Auckland on 29 August and 16 September 2013

APPEARANCES

Mrs A Bribiesca, the purchaser

Mr A Thompson, support person for purchaser at 16 September hearing only
Mr C Hollick, director for the trader
Ms A Allan, support person for the trader

DECISION

Background

[1] On 4 June 2013 Mrs Bribiesca (“the purchaser”) bought a 1996 Rover MGF car registration number BRB517 (“the vehicle”) from Fortis Cars Limited trading as Fortis Wholesale Cars Limited (“the trader”) for $4,990.

[2] The purchaser says the vehicle has a number of faults with its remote key, immobiliser, and suspension. She required the trader to remedy those faults in an email sent to the trader on 26 June 2013. The trader, in an email to the purchaser sent on 27 June informed her that it considered it had met its obligations as a registered motor vehicle trader having regard to the age, mileage and price of the vehicle. The purchaser has rejected the vehicle and seeks the Tribunal’s order upholding her rejection and ordering the trader to refund her purchase price and reimburse her with other consequential costs.

[3] The trader, although requested by the Tribunal on 25 July to file a statement of its defence before the first hearing on 29 August 2013 did not do so. It simply sent the Tribunal its vehicle costing details and copies of correspondence with the purchaser, copies of repair invoices, the VOSA and CIN, and a copy of a warrant of fitness check sheet for the vehicle dated 8 April 2013. On Friday 12 September, a few days before the second hearing, the trader sent the Tribunal a document which contains a number of grounds on which the trader claims it is not liable for the repair of the vehicle. These may be summarised as follows:
a) A report dated 5 September 2013 from Mr Carl Pemberton (“the Pemberton Report”), an engineer who commented on the evidence contained in a report by Paul Walbran Motors submitted by the purchaser to prove the existence of the faults claimed to exist with the vehicle. The Tribunal will refer to that later in this decision.
b) the trader claims the purchaser had the opportunity to inspect the vehicle before buying it and that she had it inspected by a mechanic so the vehicle was of merchantable quality.
c) The vehicle had been inspected and had passed a WOF, it was unreasonable for the purchaser to rely on the seller’s skill and judgement. The purchaser had not done sufficient research before buying the vehicle and the vehicle she bought has a reputation for lacking durability. That the vehicle was 17 years old and so was beyond the 10 to 15 years a new car is expected to last.
d) The purchaser was not a reasonable consumer, she has buyer’s remorse.
e) The purchaser did not give the trader a reasonable time to repair the faulty suspension.
f) The trader did not receive notice of rejection from the purchaser.
g) The purchaser’s evidence regarding the problem with the head gasket occurred after the purchaser was told not to drive the vehicle.

[4] Pursuant to clause 10 of Schedule 1 of the Motor Vehicle Sales Act 2003 the Tribunal has appointed Mr Middleton as expert assessor to assist in the determination of the complaint. Mr Middleton took the oath required by cl 10 (2) of Schedule 1 to that Act. As an assessor Mr Middleton assisted the adjudicator but the application was determined by the adjudicator alone.

Issues
[5] The issues raised by this application are:
[a] Whether the vehicle was of acceptable quality?
[b] If not, was the trader required to remedy the faults and if so did it do so within a reasonable time?
[c] Are the failures of substantial character?
[d] Is the purchaser entitled to reject the vehicle?
[e] If so what consequential costs is the trader liable for?

Legal Principles

Issue [a]: Whether the vehicle was of acceptable quality?

[6] In terms of s.89 of the Motor Vehicle Sales Act 2003 the Tribunal has jurisdiction to inquire into and determine applications or claims between a Motor Vehicle Trader and the purchaser of a motor vehicle. In doing so, it may apply the provisions of the Sale of Goods Act 1908, the Fair Trading Act 1986, the Contractual Remedies Act 1979 or the Consumer Guarantees Act 1993, as applicable to the circumstances of the case. In this application the Consumer Guarantees Act 1993 (“the Act”) is applicable.

[7] Section 6 of the Act imposes on a supplier and the manufacturer of consumer goods "a guarantee that the goods are of acceptable quality." Section 2 of the Act defines "goods" as including "vehicles.”

[8] The expression "acceptable quality" is defined in s 7 of the Act as follows:
“7 Meaning of acceptable quality
(1) For the purposes of section 6, goods are of acceptable quality if they are as–
(a) fit for all the purposes for which goods of the type in question are commonly
supplied; and
(b ) acceptable in appearance and finish; and
(c) free from minor defects: and
(d) safe; and
(e ) durable, ¾
as a reasonable consumer fully acquainted with the state and condition of the
goods, including any hidden defects, would regard as acceptable, having
regard to ¾
(f) the nature of the goods:
(g ) the price (where relevant):
(h) any statements made about the goods on any packaging or label on the
goods:
(i) any representation made about the goods by the supplier or the
manufacturer
(j) all other relevant circumstances of the supply of the goods.

(2) Where any defects in goods have been specifically drawn to the consumer’s
attention before he or she agreed to the supply, then notwithstanding that a
reasonable consumer may not have regarded the goods as acceptable with
those defects, the goods will not fail to comply with the guarantee as to
acceptable quality by reason only of those defects.

(3) Where goods are displayed for sale or hire, the defects that are to be treated
as having been specifically drawn to the consumer’s attention for the purposes
of subsection (2) of this section are those disclosed on a written notice
displayed with the goods.

(4) Goods will not fail to comply with the guarantee of acceptable quality if—
(a) The goods have been used in a manner, or to an extent which is
inconsistent with the manner or extent of use that a reasonable consumer
would expect to maintain from the goods; and
(b) The goods would have complied with the guarantee of acceptable quality if
they had not been used in that manner or to that extent.

(5) A reference in subsections (2) and (3) of this section to a defect means any
failure of the goods to comply with the guarantee of acceptable quality.”

[9] In considering whether or not goods meet the guarantee of acceptable
quality, the Tribunal must consider the quality elements as set out in section
7(1)(a) to (e) of the Act as modified by the factors set out in section 7(1)(f) to
(j) from the perspective of a “reasonable consumer”. The test is an objective
one; it is not a view of those factors from the purchasers’ subjective perspective.

[10] In Stephens v Chevron Motor Court Limited [1996] DCR1, the District Court held that the correct approach to the Act was first to consider whether the vehicle was of “acceptable quality”. If the vehicle was not of acceptable quality, the next point to consider was whether the purchaser required the trader to remedy any faults within a reasonable time in accordance with s19 of the Act. If the failure to comply with the guarantee of acceptable quality was of a “substantial character” within the meaning of s21, or if the faults cannot be remedied, the Tribunal is directed to ask whether the purchaser exercised her right to reject the vehicle within a reasonable time.

[11] Section 43(4) of `the Act makes it an offence against s 13(i) of the Fair Trading Act 1986 for a supplier to purport to contract out of any provision of the Act other than in accordance with s43(2) or 43A.

Application of law to facts

[12] The purchaser arranged to have her mechanic at TJ Motors inspect the vehicle before she agreed to buy it. She did not obtain a written report from the mechanic but she told the Tribunal he told her that the vehicle would require maintenance in the future. The purchaser says she was aware when she bought the vehicle that it leaked and was only supplied with one ignition key.

[13] The purchaser signed the vehicle offer and sale agreement to buy the vehicle from the trader on 4 June 2013. The vehicle had an odometer reading of 89,658kms. It was not supplied with a new warrant of fitness issued within one month prior to the date of sale by the trader in accordance with Vehicle Standard Compliance 2002 Rule 35001 section 9.12 (3). The warrant of fitness had been issued two months earlier at 89,547kms.

[14] The Consumer Information Notice supplied to the purchaser contains a sentence which reads: “We do not guarantee any remote control keys, audio or navigational equipment.” That appears to the Tribunal to be an attempt by the trader to contract out of the provisions of the Act in breach of s43(4) and a copy of the Consumer Information Notice and this decision will be referred to the Commerce Commission.

[15] The purchaser financed the purchaser with a loan of $3,030.95 over two years at 19.95% interest from Sumita Finance Limited secured by a collateral credit agreement dated 4 June 2013 arranged by the trader.

[16] After buying the vehicle the purchaser discovered within the first week of ownership that the handbrake was ineffective, the exterior mirrors were insecure, a safety belt connector was broken, the window wipers were faulty and the CD had a broken frame holder. The trader refused to fix the CD player but repaired the other faults.

[17] From 17 June the purchaser says that she was unable to drive the vehicle because the remote key would not unlock the door and she was unable to turn the vehicle’s immobiliser off. When the purchaser’s partner telephoned the trader to ask it to fix those faults the purchaser says he was told “the car comes as it is”.

[18] The purchaser says she sent an email to the trader on 22 June about the vehicle’s faults after telephoning the trader’s office to get the trader’s correct email address. On 25 June the trader sent the purchaser an email which reads:
“Sorry to hear about your car, we endeavour to satisfy all clients, but we do not guarantee any remote keys, audio or navigation equipment.
These items are clearly stated on the consumer information notice of which you have acknowledged with your initials. Copy of which I have attached, I understand a copy of this was also given to you at the point of sale.
Kind regards Clyde.”

[19] The purchaser then had the vehicle inspected on 24 June 2013 by Paul Walbran Motors who claim to be MG specialists. She produces a copy of their report which records the odometer as 90,328km (20 days and 670kms after the vehicle was supplied to the purchaser). It lists the following faults:
“Report on Car Alarm/ immobiliser
The Fob with new battery only works randomly and does not always have the range to work from outside the car.
Have extracted the Eka number from the car, disable Fob by removing the battery and using the Eka code have mobilised the car. (Note car still locks and alarms as before) but done by locking and unlocking the drivers door with the key only.
Car arrived with the suspension sitting on the bump stops. This is way below the factory ride height and quite dangerous to drive and handle as there is no or very little compliance in the suspension. The sheet (2) with this explains in more detail.
The car appears to have some pressure (not much) in the front but next to nothing in the rear units. Whether or not the units are serviceable can not be determined until they are removed from the car and tested. Car has been pump (sic) up to a reasonable clearance height.”
Attached to Mr Walbran’s report was a sheet headed “Hydragas Nitrogen recharging MGF suspension” and photographs showing the ride height of the vehicle.

[20] The purchaser sent an email to the trader on 26 June a copy of which she produced. The email lists the purchaser’s history of faults found with the vehicle after purchasing it and refers to an (initially) unsuccessful attempt to contact the trader on 22 June 2013 by email. Her 26 June email says that in order to get the vehicle mobile she took it to a MG specialist who noticed the vehicle was well below the MTA service bulletin suspension standard in regards to its height and ride and that the suspension needed immediate attention. She sent the trader a copy of Mr Walbran’s suspension report. She asked the trader “to go halves with me on fixing the suspension etc or I would like my money back.”

[21] The trader replied on 27 June 2013 that the vehicle had been issued with a warrant of fitness, that she had her mechanic inspect it for several hours and that the trader had rectified some small issues that arose from that inspection. The trader’s email concludes:
“Through out the sale process we encouraged you to thoroughly inspect the vehicle, as being an older used vehicle there are always general wear and tear items that need to be taken into consideration. We feel we have more than met our obligations as a Registered Motor Vehicle Dealer, considering the age, mileage and price of the vehicle
Kind regards Clyde”.

[22] The purchaser sent the trader a letter by post on 29 June 2013 rejecting the vehicle and informing the trader the vehicle was being stored at $50 a day. The trader denies receiving that letter although a copy of it was included in the purchaser application to the Tribunal which was sent to the trader by the Tribunal on 3 July 2013.

[23] The purchaser also produced a second more comprehensive report on the vehicle written by Mr Walbran which she produced to the Tribunal (Exhibit 5) dated 27 August 2013. This report deals with the fault with the security system, the suspension and also a fault with the vehicle’s cylinder head gasket. The report describes the vehicle’s suspension as being in breach of the relevant warrant of fitness requirement (VIRM 9.1.1) and with only 65mm of ground clearance it is 35mm less than the 100mm standard specified in the VIRM. The cost to repair the remote key and re-programme the security system is quoted as $422.18. The cost of fixing the suspension system, involving removing the four hydragas units for further testing is $510 plus GST for labour. If any of the units is faulty their replacement cost is $300 plus GST each unit for second hand units (new units being no longer available). If the units require re-gassing that would cost $100 plus GST per unit. The cylinder head gasket will cost $1,420.91 including GST to remove and replace. In summary the cost of repairing the vehicle’s faults is of the order of $3,000 to $3,800 depending on the extent of the fault with the hydragas units.

[24] The purchaser also produces a letter from Mr Paul Hyde of Hyde Automotive Ltd dated 27 August 2013 in which Mr Hyde says he has read Mr Walbran’s report (he does not state which report) and agrees with the findings. Mr Hyde recommends the engine be dismantled.

[25] The Tribunal has carefully considered the written submissions made on behalf of the trader and Mr Hollick’s comments in support at the hearing. The Tribunal comments as follows.

(a) The Pemberton Report
The Tribunal notes, first, that Mr Pemberton did not examine the vehicle before writing his report. Second, that the final paragraph on the first page of Mr Pemberton’s report on the suspension ride height in which he states that taking into account the vehicle is 17 years old the defect is a “progressive failure” and he concedes that “it also appears to be highly irregular that ride height should diminish in such a short time after the warrant of fitness was issued” suggesting the condition was present prior to the warrant being issued. The Tribunal agrees with Mr Pemberton that the suspension was probably faulty at the time the warrant of fitness was issued to the trader on 8 April 2013 two months before the vehicle was sold to the purchaser and probably further deteriorated sitting on the trader’s yard and thus supports the Tribunal’s view that the vehicle’s suspension was faulty at the time of sale of this vehicle by the trader to the purchaser. Mr Pemberton also confirms in commenting on the cylinder head gasket that it is a significant defect and also that it has not been determined if the fault is a consequence of a minor defect (ie failed thermostat) or deliberate drive on damage where the purchaser knew of the pending failure through the instrumentation and continued to drive the vehicle. The Tribunal notes in this connection that the trader has never offered the Tribunal any evidence to prove the damage to the head gasket was caused by the driver. The Tribunal considers there is a third, and more likely possibility which was not alluded to by Mr Pemberton; that the head gasket was leaking at the time of sale.

(b) The trader’s claim the vehicle was of merchantable quality
The trader claimed that because the purchaser had her mechanic look at the vehicle before she bought it and the purchaser was initially happy with her purchase and that it just had “some incredibly minor issues that were rectified at our cost prior to the sale” the vehicle was of merchantable quality. The Tribunal does not accept that a vehicle with a faulty remote key and immobiliser that cost
$422 to fix, a suspension system which requires at least $586.50 to be spent to identify the cause of the fault and probably another $460 to $1380 to fix it can be said to be of merchantable quality. The fact that the purchaser and her mechanic inspected the vehicle and the purchaser was initially happy with the vehicle before she bought it does not establish the vehicle was of merchantable quality. That only establishes the faults were probably not very obvious although the purchaser’s mechanic’s apparently failed to notice the vehicle’s low ride height.

(c) That the vehicle was durable and it was unreasonable for the purchaser to rely on the supplier’s skill and judgement and the purchaser bought a lemon
The Tribunal rejects as completely unfounded the trader’s claim that the vehicle was durable. It lasted only one week before being returned to the trader for minor repairs and within 20 days after sale the fault with the unsafe suspension was detected when the purchaser took the vehicle to Mr Walbran to have the alarm and immobiliser fixed. The Tribunal finds the purchaser was entitled to rely on the trader’s skill and judgment. It considers the trader’s response that the purchaser should have done research to find out what an unreliable vehicle the MG was to be probably the most unbelievable defence that has ever been submitted to the Tribunal. No honest reliable trader- even one selling 17 year old vehicles- can reasonably defend its sale of a poor quality vehicle in breach of the Act by saying: it’s the purchaser’s fault for not discovering before they bought the vehicle from me, that it had a dreadful reputation for reliability.

(d) Buyer’s remorse
There was no evidence provided to support the trader’s claim that the purchaser’s decision to reject the vehicle was founded on less than a sincere belief that the vehicle had faults which the trader refused to repair. The Tribunal does not accept the trader’s claim that the purchaser had buyer’s remorse and in any event that is not a defence to a claim that the trader has failed to comply with s6 of the Act which is the basis of the purchaser’s claim.

[26] The Tribunal, in determining whether the vehicle complied with the guarantee of acceptable quality in the Act has had regard to the following facts: first that that the vehicle, at the date of sale by the trader to the purchaser was a 17 year old Japanese imported Rover MGF which had travelled 89,658kms and was sold for $4,990. Second, at the date of sale the trader did not supply a fresh warrant of fitness for the vehicle. Third, the vehicle had faults which the purchaser discovered within a week of sale and which were, with the exception of the CD player, repaired by the trader. Fourth, within 13 days of the date of supply the vehicle’s remote key alarm and immobiliser failed to work. The trader was asked but refused to repair those faults on 22 June. Fifth, when the purchaser took the vehicle to Paul Walbran Motors to have those faults fixed she was told that the vehicle’s suspension was too low at 65mm and was unsafe because it did not meet warrant of fitness requirements. Sixth, the vehicle has since been found to have a leaking head gasket and it has only travelled 889kms since it was supplied by the trader. Taking those facts into account the Tribunal is in no doubt that the vehicle was not of acceptable quality at the time of sale because it was not free of minor faults, safe, and certainly was not as durable as a reasonable consumer paying $4,990 even for a 17 year old MGF with 89,658kms on its odometer would regard as acceptable.

Conclusion on issue [a]

[27] The vehicle failed to comply with the guarantee of acceptable quality in s6 of the Act because it is not free from minor defects, safe or as durable as a reasonable consumer would regard as acceptable for a vehicle of this age, mileage and price.

Issue [b]: Was the trader required to remedy the faults and if so did it do so within a reasonable time?

Legal principles

[28] Section 18 of the Act provides as follows:
“18 Options against suppliers where goods do not comply with guarantees
(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies:

(2) Where the failure can be remedied, the consumer may ¾
(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:
(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time, ¾
(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or
(ii) subject to section 20, reject the goods in accordance with section 22.

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of Section 21, the consumer may ¾
(a) subject to section 20, reject the goods in accordance with section 22; or
(b) obtain from the supplier damages in compensation for any reduction in
value of the goods below the price paid or payable by the consumer for the
goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the
consumer may obtain from the supplier damages for any loss or damage to the
consumer resulting from the failure (other than loss or damage through
reduction in value of the goods) which was reasonably foreseeable as liable to
result from the failure."

Application of law to facts

[29] When the purchaser discovered the remote key, alarm and the immobiliser were not working she said she emailed the trader about those faults. The trader was unwilling to repair them as Mr Hollick’s email of 25 June 2013 (reproduced in paragraph 18 above) records. The purchaser then became entitled in terms of s18(2)(b)(i) of the Act to have the failure remedied elsewhere and recover the reasonable cost from the supplier. The purchaser had Paul Walbran come to try and start the vehicle on 23 June and the fault was rectified on 24 June. The purchaser is not entitled to recover the sum she paid Paul Walbran for starting the vehicle on 21 June because she had not, at that date, required the trader to fix the fault.

[30] A consumer is not required by s18(3) of the Act to give a supplier the opportunity to rectify a fault which is of a substantial character. Hence there was no obligation on the purchaser in this application to require the trader to fix the suspension or the blown head gasket faults before she rejected the vehicle because, for the reasons given in paragraphs 33 and 34 (below) each was a failure of substantial character.

Conclusion on issue [b]:

[31] The purchaser did require the trader to remedy the fault with the remote key, alarm and immobiliser and did so on 22 June. The trader refused to remedy that fault on 25 June and therefore the purchaser became immediately entitled under s18(2)(b)(i) to have the fault repaired herself at the trader’s cost. The purchaser was not, in terms of s18(3) required to give the trader the opportunity to repair the suspension and engine head gasket faults before she rejected the vehicle.

Issue [c]: Are the failures of substantial character?

Legal Principles

[32] Section 21 of the Act defines the circumstances in which a failure to comply with the guarantee as to acceptable quality will be regarded as being a failure of a substantial character for the purposes of s18(3) of the Act. Section 21 of the Act provides as follows:
“ 21 Failure of substantial character
For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where ¾
(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7

because they are unsafe."

Application of law to facts

[33] The Tribunal believes the vehicle would almost certainly not have been acquired by a reasonable consumer who was aware of the likely cost of repairing the various faults this vehicle has been found to have which, as previously referred to in paragraph 23 will likely cost between $3,000 and $3,800 to repair. Accordingly, the Tribunal considers the vehicle’s failure to comply with the guarantee of acceptable quality is of substantial character within the definition in s21(a) of the Act.

[34] The Tribunal, on the advice of its Assessor also considers the vehicle’s suspension which Mr Walbran reported was resting on the vehicle’s stop bumps was unsafe because the vehicle would have constantly bottomed out (as the purchaser gave evidence it did when crossing judder bars) and would also have lacked proper steering control on corners particularly at open road speeds. Accordingly, the Tribunal finds the failure of the vehicle’s suspension was a failure of substantial character in terms of s21(d) of the Act.

Conclusion on issue [c]

[35] The vehicle’s failure to comply with the guarantee of acceptable quality is of substantial character in terms of s21(a) and (d) of the Act.

Issue [d]: Is the purchaser entitled to reject the vehicle and have a refund of her purchase price?

Legal Principles

[36] Section 22(1) of the Act provides that a consumer who wishes to exercise the right to reject goods under the Act must notify the supplier of the decision to reject the goods and of the ground or grounds for rejection.

[37] Section 20 of the Act provides that the right to reject goods under the Act shall not apply if it is not exercised within a reasonable time. Subsection 2 of s20 defines what the term reasonable time means.

Application of law to facts

[38] In this application the Tribunal finds on the evidence of the contents of the purchaser’s letter of 29 June 2013 sent to the trader that the purchaser complied with s22 of the Act and that even if the trader denies that it received the letter of rejection it most certainly received a copy of the letter of rejection when the purchaser’s application was sent to the trader on 3 July 2013. There is nothing in s22 that requires the notification of the rejection to be sent to the supplier before the purchaser files an application with the Tribunal.

[39] Rejection took place within a reasonable time of the date of supply and as soon as the purchaser was aware of the extent of the suspension and head gasket faults with the vehicle from taking the vehicle to Paul Walbran Motors. The Tribunal therefore finds the purchaser was entitled to reject the vehicle and is entitled to a full refund of her purchase price.

Conclusion on issue [d]

[40] The Tribunal will uphold the purchaser’s rejection of the vehicle on 29 June 2013 and will, as from that date vest the collateral credit agreement between the purchaser and Sumita Finance Ltd dated 4 June 2013 in the trader. The Tribunal will also order the trader to refund the purchaser with her deposit of $2,500 as well as refunding the capital components of all payments she made to Sumita Finance Ltd price from 4 June to 29 June and the total of all payments she has made to Sumita Finance Ltd since 29 June 2013.

[41] The Tribunal will also order the trader to refund the purchaser with the following sums which it considers, in terms of s18(4) of the Act were reasonably foreseeable as likely to result from the failure:
a) storage costs, inspection and report fee paid to Paul Walbran Motors of $1,331.40
b) towage fee $90

Orders

1. The purchaser’s rejection of the vehicle is upheld with effect from 29 June 2013.

2. The collateral finance agreement between the purchaser and Sumita Finance Ltd dated 4 June 2013 is vested in the trader from 29 June 2013 and the trader shall discharge all the purchaser’s obligations under that agreement as from 29 June 2013.

3. The trader shall repay to the purchaser the following sums:
a) the capital component of all payments made under the collateral finance agreement from 4 June to 29 June 2013; and
b) the total of all payments made by the purchaser to Sumita Finance Ltd under the collateral finance agreement since 29 June 2013.

4. The trader shall also pay to the purchaser $3,921.40 immediately calculated as follows:
a) the deposit of $2,500;
b) report and storage fees of $1,331.40;
c) towage fees of $90;
Total $3,921.40

5. The trader shall, as soon as it has paid the purchaser the sum of $3,921.40 and the other payments due to the purchaser in terms of order 3 (above) uplift the vehicle from Paul Walbran Motors Ltd at its expense.

DATED at AUCKLAND this 19 September 2013

C.H Cornwell
Adjudicator