Vaeagi v Anquin Investment Limited t/a AS Great Motors - Reference No. MVD 131/13 (Auckland) [2013] NZMVDT 107 (4 October 2013)

Last Updated: 18 November 2013

Decision No. AK 89/2013

Reference No. MVD 131/13

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN SAMUELA VAEAGI

Purchaser

AND ANQIN INVESTMENT LIMITED TRADING AS GREAT MOTORS

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Mr C H Cornwell, Barrister & Solicitor, Adjudicator
Mr S D Gregory, Assessor

HEARING at Auckland on 30 September 2013

APPEARANCES

Mr S Vaeagi, the purchaser

Miss S Vaeagi, witness for the purchaser
Mr S Vaeagi, witness for the purchaser
Ms M McKenzie-Vaafusuaga, witness for the purchaser
Mr Q Ding, director for the trader
Mr T Li, salesman and witness for the trader
Mr K Yu, witness for the trader

DECISION

Background

[1] On 17 August 2013 Mr Vaeagi (“the purchaser”) bought a 1995 Subaru Impreza registration CCL585 (“the vehicle”) from Anqin Investment Limited trading as Great Motors (“the trader”) for $6,900. The purchaser has rejected the vehicle because he says it has a serious fault which the trader refused to repair. The purchaser seeks the Tribunal’s order upholding his rejection and ordering the trader to refund his purchase price.

[2] The trader denies that it was the seller of the vehicle. It says the vehicle was sold as a private sale but that it has repaired the vehicle at its cost and after it did so it called the purchaser to collect the vehicle but he has not done so.

[3] Prior to the commencement of the hearing the Tribunal appointed Mr Gregory as the Tribunal’s assessor and he took the oath required of an assessor by Schedule 1, cl 10(2) of the Motor Vehicle Sales Act 2003. As an assessor Mr Gregory assisted the adjudicator but the application was determined by the adjudicator alone.

Facts

[4] The trader supplied the purchaser with the vehicle on 17 August 2013 for $6,900. It had travelled 126,000kms at the time of sale. The purchaser was not supplied with a consumer information notice nor a vehicle offer and sale agreement by the trader. The warrant of fitness on the vehicle had not been issued within one month prior to the date of sale.

[5] The vehicle broke down on 19 August 2013 and when the purchaser telephoned the trader about that he was told the trader had no money and he would have to fix the vehicle himself. The trader did, however, agree to repair the glove box which was broken, obtain a warrant of fitness and repair a dent in the bumper.

[6] On 21 August the purchaser towed the vehicle to Kelston Auto Repair Ltd who diagnosed the fault as a faulty crank shaft pulley. They recommended the purchaser take the vehicle back to the trader and require it to repair the crank shaft pulley. The same day the purchaser took the vehicle back to the trader. He met Mr Li the salesman who had sold him the vehicle. The purchaser says Mr Li ignored him and played with his cell phone. Apparently the purchaser tapped Mr Li on the head to get his attention and was immediately asked to leave the trader’s premises.

[7] The purchaser made two further visits to the trader’s premises on 23 August with his son and on 24 August with Ms McKenzie-Vaafusaga to try and persuade the trader to repair the vehicle. Mr Li refused to talk to the purchaser on both occasions.

[8] The purchaser filed an application with the Tribunal on 28 August but his application did not say what remedy he was seeking.

[9] The trader, represented by Mr Ding told the Tribunal that the vehicle had been repaired by the previous owner Mr Yu and he produced an invoice dated 25 August 2013 from Complete Auto Repairs Ltd for a crank pulley, starter motor and key for the crank pulley which with labour and GST totalled $1,127. The invoice is not a GST invoice and it does not show the customer’s name.

[10] Mr Kevin Yu gave evidence for the trader that he was the previous owner of the vehicle and the trader had sold the vehicle for him. When asked if he paid for the repairs Mr Yu said he had paid in cash but was unable to produce a GST receipted account to prove that he had paid for the repairs.

[11] The Tribunal telephoned Complete Auto Repairs Limited and took sworn evidence by telephone conference call during the hearing from a Mr B Liu the owner of the business. Mr Liu told the Tribunal that the vehicle had been brought in by the trader about three weeks ago and he had replaced the crank shaft pulley and key. He says he invoiced the trader and he believed the trader had paid for the repair. The vehicle was returned to the trader several weeks ago.

[12] The purchaser gave evidence that he had posted the trader a letter rejecting the vehicle on 25 September 2013 and he also, upon being questioned by the Tribunal, said that at that time he sent the letter of rejection the trader had already telephoned him and told him the vehicle had been repaired and that he should collect it.

Reasons for the Tribunal’s decision

[13] The Tribunal is satisfied first, that the vehicle supplied to the purchaser by the trader was not of acceptable quality at the time it was supplied because it broke down after two days use and was thus clearly not durable.

[14] The Tribunal is also satisfied from the evidence given by the purchaser that the trader was required to remedy the fault and refused to do so. The purchaser, had he acted promptly, could have rejected the vehicle at that time on the basis of the trader’s refusal to repair the vehicle’s faults. He did not do so but sought to try and persuade the trader to change its mind.

[15] For whatever reason the trader appears to have reconsidered its position and arranged to uplift the vehicle from Kelston Auto Repair Ltd- probably in early September after the purchaser had filed his application with the Tribunal- and has had the vehicle repaired at its cost by Complete Auto Repairs Ltd.

[16] The purchaser’s rejection of the vehicle on 25 September was too late to be effective because by the time the purchaser posted it to the trader he was, as he admitted, already aware the vehicle had been repaired.

[17] The Tribunal will therefore dismiss the purchaser’s application for rejection for the following reasons:
a) the faulty crank shaft pulley, whilst a breach of s6 of the Consumer Guarantees Act 1993 is not a serious fault and did not amount to a failure of substantial character;
b) the trader was required by the purchaser to repair the vehicle and after initially refusing to do so apparently changed its mind and has repaired the vehicle at its cost;
c) the purchaser therefore now has no basis to reject the vehicle and his letter to the trader dated 25 September 2013 was sent after he became aware the vehicle had been repaired.

Order
The purchaser’s application is dismissed. The purchaser should uplift the vehicle from the trader immediately.

DATED at Auckland 4 October 2013.

C.H.Cornwell
Adjudicator

Addendum: The trader, not for the first time, sought to avoid liability under the Consumer Guarantees Act by claiming it sold the vehicle privately. The trader should be aware that whenever it becomes involved in the sale of a vehicle it becomes a “supplier” under the extended definition of that word in the Consumer Guarantees Act 1993 and the Tribunal will expect it to discharge its obligations under that Act.