Smith v Car Giant Limited t/a Car Giant - Reference No. MVD 117/13 (Wellington) [2013] NZMVDT 103 (19 September 2013)

Last Updated: 16 October 2013

Decision No. WN 18 /2013

Reference No. MVD 117/13

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN VICTORIA SMITH

Purchaser

AND CAR GIANT LIMITED trading as CAR GIANT

Trader

BEFORE THE WELLINGTON MOTOR VEHICLE DISPUTES TRIBUNAL

N J Wills - Barrister, Adjudicator
S Johnson - Assessor

HEARING at Wellington on 2 September 2013

APPEARANCES

Victoria Smith, purchaser
Anna Smith, witness for the purchaser
Sophia Smith, witness for the purchaser
David Smith, witness for the purchaser (by telephone)
Michael Thompson, General Manager, for the trader
Anthony White, witness for the trader (by telephone)

DECISION

Background

[1] On 13 April 2013, Victoria Smith (the purchaser) purchased a 2005 Mazda RX8 (the car) for $14,990 from Car Giant Limited (the trader). The purchaser and the trader are in dispute about who should pay for clutch repairs.

[2] Prior to the commencement of the Tribunal’s inquiry the Tribunal appointed Mr Johnson who 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 Johnson assisted the adjudicator but the application was determined by the adjudicator alone.

Facts

[3] On 13 April 2013 Mrs Smith bought the car from the trader for $14,990. At the time of sale the car had an odometer reading of 74,213 kilometres.

[4] On 8 June 2013, the car broke down and was transported to the trader’s yard. The trader arranged for the car to be inspected by Motortech Transmissions. The Motortech invoice shows an odometer reading of 77,400 kilometres, so the problem occurred just over 3,000 kilometres after purchase.

[5] Mr White, from Motortech, contacted Mrs Smith about dismantling the clutch. After some discussion Mrs Smith gave her permission for that to occur. Having heard evidence from Mrs Smith and Mr White, the tribunal concludes that Mrs Smith knew that there was a possibility that she would have to pay for the dismantling i.e. if it were determined that the fault was not the trader’s responsibility. Mrs Smith gave Motortech permission to dismantle the clutch because she believed that the clutch failure would turn out to be the trader’s responsibility.

[6] Unfortunately for Mrs Smith, once the clutch was disassembled, Mr White reached a different conclusion. He found the clutch plate burnt and told the tribunal that this was caused by slipping the clutch. The damage was not consistent with the “boy racer” practice of dropping the clutch quickly. Mr White could not be specific about when the failure might have occurred.

[7] Once the problem was diagnosed, Mrs Smith arranged for the car to be transported to her mechanic, Dave Smith. Mr Smith carried out the necessary repairs to the clutch at a cost of $1,019.53. Mr Smith (no relation to the purchaser) gave evidence to the tribunal. In essence, he agreed with Mr White’s evidence that the problem was caused by the clutch being “slipped” while the car was being driven. He said that in that sense the problem with the clutch was not a mechanical failure.

[8] Mr Smith told the tribunal that he had known the family for years and that they were not the type of family that abuse vehicles. That is certainly consistent with the impression formed by the tribunal. The tribunal heard from Mrs Smith and both of her daughters. It is clear that they are careful, level-headed drivers. Mr Smith’s conclusion is that while there was not neglect or abuse on the part of the purchaser (and members of her family that drove the car), his view was that it was likely that there had been poor operation of the clutch to the point where it burnt out.

[9] Mr Smith was asked about the likelihood of the damage to the clutch having occurred before Mrs Smith bought the car. Mr Smith said that it was hard to tell when the damage occurred but that he had driven the car before the clutch failed (after Mrs Smith bought it) and did not detect any problem with the clutch. Mr Smith’s reluctant conclusion was that the cause of the problem was most likely driver error after Mrs Smith bought the car.

[10] Mrs Smith bears the onus of proving her case before the tribunal to the required standard, in this case, on the balance of probabilities. Mrs Smith must prove that it is more likely than not that the car failed the guarantee of acceptable quality when it was sold to her. Having regard to the evidence of both Mr Smith and Mr White, the tribunal finds that there is insufficient evidence to establish that there was such a failure in the guarantee of acceptable quality at the time of sale.

[11] The purchaser’s application is dismissed.

DATED at WELLINGTON this 19 day of September 2013

___________________
N Wills
Adjudicator