Home
| Databases
| WorldLII
| Search
| Feedback
Motor Vehicles Disputes Tribunal of New Zealand |
Last Updated: 23 July 2014
Decision No. AK 61 /2014
Reference No. MVD 104/2014
IN THE MATTER of the Motor Vehicle Sales Act 2003
AND
IN THE MATTER of a dispute
BETWEEN ANDREW BARRY BOYED
Purchaser
AND STUTTARD HOLDINGS LIMITED T/A DISCOUNT CITY CARS
Trader
BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
Mr C H Cornwell, Barrister & Solicitor, Adjudicator
Mr S D Gregory,
Assessor
HEARING at AUCKLAND on 24 June 2014
APPEARANCES
Mr A B Boyed, the purchaser
Mr T R Ewington, director, for the trader
Mr K
Williamson, sales manager, witness for the trader
DECISION
Background
[1] On 26 February 2014 Mr Boyed (“the purchaser”) bought a 2004 Suzuki Swift registration number HGY263 (“the vehicle”) for $11,500 from Stuttard Holdings Limited trading as Discount City Cars (“the trader”). The purchaser has rejected the vehicle because he says the trader failed within a reasonable time to remedy its faults. The purchaser wants the Tribunal to uphold his rejection and order the trader to refund his purchase price.
[2] The trader denies that the purchaser is entitled to reject the vehicle.
[3] Pursuant to clause 10 of Schedule 1 of the Motor Vehicle Sales Act 2003 the Tribunal has appointed Mr Gregory as expert assessor to assist in the determination of the complaint. Mr Gregory took the oath required by cl 10(2) of Schedule 1 to that Act. As an assessor Mr Gregory assisted the adjudicator but the application was determined by the adjudicator alone.
The issues
[4] The issues raised by this application are:
[a] Whether the vehicle
complied with the guarantee of acceptable quality in s.6 of the Consumer
Guarantees Act 1993?
[b] If not, did the trader remedy any failure of the
vehicle to comply with the guarantee within a reasonable time?
[c] If not, is
the purchaser entitled to reject the vehicle?
Issue [a]: Whether the vehicle complied with the guarantee of acceptable quality in s.6 of the Consumer Guarantees Act 1993 (“the Act”)?
Relevant law
[5] 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 or the Consumer Guarantees Act 1993, as applicable to the circumstances of the case. In this application the Consumer Guarantees Act is applicable.
[6] 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.”
[7] 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:
(ha) the nature of the
supplier and the context in which the supplier supplies 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.”
[8] 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.
[9] 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 purchasers 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 s 21, or if the faults cannot be remedied, the Tribunal is directed to ask whether the purchaser exercised his right to reject the vehicle within a reasonable time.
Application of law to facts
[10] The purchaser test drove the vehicle before he agreed to buy it from the
trader on 26 February 2014 for $11,500. The vehicle
is a Japanese import which
had travelled 64,190kms at the time of delivery to the purchaser. The Tribunal
understands that the vehicle
had not been prepared for sale by the trader when
the purchaser saw it. The purchaser says that the trader’s salesman
promised
him that the vehicle would be supplied to him looking as good as the
trader’s other cars on the yard after it was groomed and
prepared for sale
by the trader.
[11] The purchaser and the trader’s salesman then
signed a Promise Sheet, a copy of which was produced to the Tribunal. It
reads
as follows:
1. Band Expander
2. LR Door Dent LF
guard
3. Right side door edges and
4. Front & rear
bumper small touch up
5. remote key battery”
[12] The vehicle was supplied to the purchaser on 28 February 2014. On delivery the purchaser signed his acknowledgment on the Promise Sheet that the vehicle had been inspected at the time of delivery and that he accepted that the vehicle was of acceptable quality and that all promises made at the time of purchase had been honoured.
[13] The purchaser says that the trader has supplied and fitted a band expander, removed the dents in the LR door and LF guard, touched up the bumpers and fixed the remote key. The purchaser’s concerns are first, that there are two small patches of glue on the left hand side of the dash that have not been removed by the trader. The purchaser required the trader to replace the vehicle’s dash to rectify that fault. Second, the right front and rear doors have been polished down to the clear coat and there are now several white blemishes about the size of a 50 cent coin which are visible on the right front and rear doors. These blemishes can probably only be remedied by painting those two doors. The purchaser also complained of a small scratch in the vehicle’s rear hatch but during an inspection of the vehicle by the Tribunal was unable to point the scratch out and says he may have covered or eliminated it with polish.
[14] The factors to be considered by the Tribunal in deciding if the vehicle was of acceptable quality at the time of sale are first that the vehicle in this application is a 10 year old Japanese imported Suzuki Swift. It had travelled 64,190kms at the time of sale. Second, it was sold for $11,500. The Adjudicator and Assessor inspected the vehicle at about 3-15pm on the day of the hearing. Conditions were overcast at the time of inspection however even allowing for less than ideal natural light conditions the Tribunal considers the vehicle is generally in a tidy condition consistent with its mileage and age. There is some paint missing on the kick panel adjacent to the driver’s footwell as might be expected of a vehicle which has been driven 64,000kms caused by drivers footware brushing the paintwork as drivers enter and leave the driver’s seat. The Tribunal does not consider the small glue marks on the dash to be a fault. The Tribunal had difficulty seeing the two small patches of glue when it inspected the vehicle. The marks are minute, the trader arranged to have them coloured so that they would blend in with the colour of the dash. The glue marks are, the Tribunal finds, a consequence of the vehicle being a 10 year old used vehicle and were probably caused by a previous owner affixing a toy or GPS screen to the dash. The glue marks do not, in the Tribunal’s view, detract from the vehicle’s appearance in any material way.
[15] The Tribunal tends to think the blemishes in the clear coat on the right front and rear doors are a minor fault which do detract from the vehicle’s appearance and which, given the price paid for the vehicle would probably not be considered to be acceptable by a reasonable consumer. The Tribunal therefore finds that the vehicle did not comply with the guarantee of acceptable quality insofar as those small clear coat blemishes on the right hand doors are concerned.
Conclusion on issue [a]
[16] The vehicle did not comply with the guarantee of acceptable quality in section 6 of the Act in respect of the paintwork on the right front and rear doors.
Issue [b]: Whether the trader remedied any failure in the guarantee of acceptable quality within a reasonable time?
Relevant law
[17] 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
[18] The purchaser’s evidence was that the vehicle had been returned to the trader although the Tribunal is unsure when this occurred. The trader had the doors cut and polished and it had come back, according to the purchaser looking “beautiful”. However the wax has since washed off and the marks have returned.
[19] The Tribunal notes that in an email on 19 May the trader offered to have both the doors painted and considers that the trader should be given a further opportunity to do so.
Conclusion on issue [b]
[20] The Tribunal was not convinced that the purchaser had given the trader a reasonable time within which to remedy the fault with the blemishes in the clear coat on the right hand doors. The trader should be given a reasonable time within which to do so.
Orders
1. The purchaser’s application to reject the vehicle under the Consumer Guarantees Act 1993 is dismissed.
2. The purchaser is to return the vehicle to the trader who should provide the purchaser with a loan car whilst it has both the right front and rear doors of the vehicle painted in a tradesman like manner at its cost.
DATED at AUCKLAND this 27th June 2014
C.H Cornwell
Adjudicator
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZMVDT/2014/69.html