Roberts v Vision Auto Sales Limited - Reference No. MVD 202/13 (Auckland) [2014] NZMVDT 8 (10 February 2014)

Last Updated: 18 March 2014

Decision No. AK 7/2014

Reference No. MVD 202/13

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN TRACEY ELLEN ROBERTS

Purchaser

AND VISION AUTO SALES LIMITED

Trader

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

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

HEARING at Auckland on 5 February 2014

APPEARANCES

Mr G C Roberts, approved representative of the purchaser
Mr W G Reid, sales and administration officer representing the trader

DECISION

Background

[1] On 25 September 2013 Mrs Roberts (“the purchaser”) bought a 2009 VW Polo registration HBN781 (“the vehicle”) from Vision Auto Sales Limited (“the trader”) for $13,995. The vehicle was returned to the trader to repair a fault with the headlight during the course of which the purchaser claims the trader or its agents damaged the vehicle’s bonnet. The purchaser claims to recover the cost of repairs to the vehicle’s bonnet of $951.63 and the cost of a post purchase inspection of $305.33; a total of $1,256.96.

[2] The trader denies that the vehicle was damaged when it was in its care and says the damage must have been done by the purchaser after she bought the vehicle.
[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.

The Issues
[4] The issues raised by this application are:
[a] Whether the vehicle was of acceptable quality when it was sold to the purchaser?
[b] If not, did the trader repair the vehicle’s faults within a reasonable time of being required to do so?
[c] Did the trader or its agents damage the vehicle’s bonnet in the course of repairing the headlight and bumper support?
[d] If so, what sum is the purchaser entitled to recover from the trader as her reasonable repair costs?

Issue [a]: Whether the vehicle was of acceptable quality when it was sold to the purchaser?

Relevant Law

[5] Section 6 of the Consumer Guarantees Act 1993 (“the Act”) imposes on a supplier "a guarantee that the goods are of acceptable quality." Section 2 defines "goods" as including "vehicles.”

[6] The expression "acceptable quality" is defined in s 7(1) 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 obtain 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.”

Application of law to facts

[7] The purchaser bought the vehicle from the trader on 25 September 2013. The trader obtained an AA Vehicle Appraisal the day prior to sale which it supplied to the purchaser and which recorded the vehicle’s odometer as 29,623kms and that it was in above average condition for its age and mileage.

[8] The purchaser bought the vehicle for her daughter’s personal use. About 21 October 2013 the vehicle was involved in an accident which caused damage to the driver’s door. In the course of repairing the vehicle the repairer, Warkworth Collision Repairs, discovered that the vehicle had previously been involved in an accident and had sustained damage to the front bumper and right front headlight. They found the repairs had been poorly done. There were unrepaired cracks in the radiator assembly support and broken parts that had been plastic welded and glued together. The right front headlight support had been broken off and the headlight was held in place with duct tape.

[9] On 30 October 2013 Mr Roberts sent copies of photographs of these repairs which had been taken by Warkworth Collision Repairs to the trader and a quote for the repairs. The trader contacted Mr Roberts and agreed to have the repairs done by its repairer properly. The trader agreed to collect the vehicle from Warkworth Collision Repairs and supply the purchaser with a loan car whilst it had its repairers repair the damage. On 6 November Mr Roberts sent an email to the trader telling it the vehicle was available for collection and asking the trader to confirm that it would be carrying out the repairs listed in the quote prepared by Warkworth Collision Repairs and also asked the trader to keep a step by step digital photo record of the work done and email that to him.

[10] The trader arranged for the vehicle to be collected by its agent, Exclusive Towing Ltd on 7 November from Warkworth Collision Repairs and taken to the trader’s premises to be repaired. The trader had the vehicle in its care from 7 to 12 November when it apparently sent it to Liberty Auto Painting. Mr Reid appeared to be unsure as to why the vehicle needed to go to Liberty Auto Painting and he did not, as he had been requested in writing to do by the Tribunal, provide a copy of the invoice for the repair work done on the vehicle. He claimed he was unable to find the invoice from Liberty Auto Painting but he apparently chose not to obtain another copy.

[11] Mr Reid gave evidence that prior to starting work on the vehicle the repairer had advised him that there were some marks on the vehicle’s bonnet but the trader did not notify the purchaser or Mr Roberts about that even when it telephoned Mr Roberts on 15 November to tell him the vehicle had been repaired and was ready to be collected. Mr Reid told the Tribunal that he assumed Mr Roberts was aware of the marks which he says appear to be stone chips which had been poorly pencil touched then an attempt had been made to cut and polish the marks. He said the headlight from the vehicle had been swapped with a headlight from another vehicle on the trader’s premises.

[12] On 18 November Mr Roberts went to the trader’s premises to collect the vehicle and immediately noticed that there were seven marks on the bonnet, the largest the size of a $2 coin which someone had attempted to pencil touch. Mr Reid was not present on the trader’s premises at that time and Mr Roberts spoke to a Mr Geoff Ingram who said he knew nothing about the marks and Mr Roberts would have to speak to Mr Reid about them.

[13] On 20 November Mr Roberts went back to the trader’s premises and saw Mr Reid who denied any responsibility for the marks and claimed they must have been present when the vehicle was collected from Warkworth Collision Repairs. Mr Roberts went back to Warkworth Collision Repairs on 21 November and showed them the damage to the bonnet. They were adamant the marks were not on the bonnet when the vehicle was collected from them by the trader’s transport agent from their premises. They showed the purchaser a photographic record of the vehicle from the time they received it.

[14] On 21 November Mr Roberts sent an email to the trader informing it of his discussions about the marks on the bonnet that day with Warkworth Collision Repairs. His email concluded:
“As I pointed out yesterday I cannot understand why any of your staff or your panelbeaters staff that noticed this very obvious damage would not consider it necessary to immediately contact the vehicle owner to advise that there is damage there before starting work. The fact that I was not actually informed at all about it and only discovered it when I came to collect the vehicle accompanied with the fact that the damage has had an attempt at concealment leaves me no choice but to consider the blame lies within your repair operation.”

[15] Mr Roberts says he received no response from the trader and so on 27 November he took the vehicle to Silverdale Car Services Ltd for a post purchase check. Mr Roberts produces a copy of their report which lists “unusual marks in the paintwork on the top side of the bonnet. It appears that someone has rubbed”. They also reported that “the driver’s side headlamp has an internal fault and the level adjuster is not operating”. They charged the purchaser $305.33 for the report which included their labour cost in replacing two bulbs, removing the left rear inside door panel to secure a detached window switch and unjamming the rear centre safety belt.

[16] On 16 December 2013 the purchaser filed her application with the Tribunal. The trader made no attempt to contact the purchaser to attempt to discuss and mediate the dispute as it had been asked to do by the Tribunal and as it is required by clause 5 of the Schedule to the Motor Vehicle Sales Act 2003. On 22 January the purchaser had Warkworth Collision Repairs repair the bonnet and replace the right hand headlight so that the headlight is able to be adjusted. The cost of that work was $986.72 for which Mr Roberts produces the receipted account.

[17] The Tribunal, in deciding if the vehicle was of acceptable quality has had regard to the fact that the vehicle had prior to its sale to the purchaser been recently imported from Japan and that the vehicle was, at the time of sale a very low mileage (29,601kms) four year old VW Polo and that it was sold for $13,995. The Tribunal considers that a reasonable consumer paying that much money for a low mileage four year old car would be entitled to expect it to be free of minor faults. This vehicle was not. It had been previously involved in an accident and had been poorly repaired. The photographs of the repair work produced by the purchaser taken by Warkworth Collision Repairs clearly show that. The Tribunal thus finds the vehicle was not free of minor faults at the time it was supplied to the purchaser and would not be considered acceptable by a reasonable consumer paying $13,995 for the vehicle.

Conclusion on issue [a]:

[18] The vehicle did not comply with the guarantee of acceptable quality in s6 of the Act at the time of sale.

Issue [b]: Did the purchaser require the trader to fix the faults and give the trader a reasonable time within which to do so?

Relevant law

[19] Section 18 of the Act provides that where a failure to comply with a guarantee can be remedied the consumer must require the supplier to do so within a reasonable time. If the supplier refuses or neglects or fails to do so the consumer may then have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied, or the consumer may reject the goods. The relevant section is 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

[20] Mr Roberts gave evidence that when the vehicle’s faults from its previous poor accident repairs were discovered he sent the trader photographs of the faults and required the trader to remedy them. The Tribunal finds that the trader was willing to repair the faults and had the vehicle transported to its premises to do so. However the trader did not repair the right front headlamp properly because as Silverdale Car Services Ltd found when they checked the vehicle the driver’s side headlamp had an internal fault and the level adjuster was not operating. The trader, presumably to do a quick cheap job took the headlamp off another car. That headlamp was faulty.

Conclusion on issue [b]:

[21] The Tribunal is satisfied that the purchaser complied with s18(2)(a) of the Act and required the trader to remedy the fault but that the trader failed to repair the right front headlamp properly.

Issue [c]: Did the trader or its agents damage the vehicle’s bonnet in the course of repairing the headlight and bumper support?

[22] The Tribunal, after listening to the evidence of Mr Roberts and Mr Reid regarding the damage to the vehicle’s bonnet considers Mr Roberts the more credible witness. The Tribunal thinks it is more than likely that the vehicle’s bonnet was damaged at some time during the period 7 to 18 November whilst it was in the care of the trader’s transporter, Exclusive Towing, the trader, or the trader’s repairer Liberty Auto Painting . Its reasons are first, that it thinks that if the damage had occurred before the vehicle went to Warkworth Collision Repairs to have the door repaired, that would have been obvious to Mr Roberts who has spent considerable time pursuing the trader over this matter and it would have also been obvious to Warkworth Collision Repairs. Further, the damage to the bonnet would probably have been recorded in the photographs Warkworth Collision Repairs took of the vehicle which they showed to Mr Roberts. Second, there was no need for Warkworth Collision Repairs, if the vehicle had been damaged in their care, to lie to Mr Roberts about that because they could have easily and cheaply repainted the bonnet. Third, the Tribunal agrees with Mr Roberts that if the vehicle’s bonnet had been damaged before the vehicle went back to the trader on 7 November it is hard to understand why nobody from the trader notified Mr Roberts that the vehicle had been received in a damaged condition. Fourth, although Mr Reid says he was told by Liberty Auto Painting prior to their commencing work on the vehicle that there were marks on the bonnet yet he failed to notify Mr Roberts of that at the time and did not even notify him when he telephoned Mr Roberts to tell him the vehicle had been repaired and was ready to be collected. The Tribunal thinks the probability is the vehicle’s bonnet was damaged whilst the vehicle was at the trader’s premises and someone in the trader’s employ attempted to cover up the marks before it went to Liberty Auto Painting.

Issue [d]: What sum is the purchaser entitled to recover for her reasonable repair costs from the trader?

Relevant law

[23] Section 18(2) of the Act provides as follows:
“(2) Where the failure can be remedied, the consumer may-

(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.”

Application of law to facts

[24] The Tribunal considers the amount claimed by the purchaser of $305.33 paid to Silverdale Car Services Ltd for a post purchase check ought properly to be paid by the purchaser. This is because the repair work on the rear door panel, the unjamming of the safety belt and the replacement of bulbs was not work which the purchaser had previously required the trader to do and which the trader had failed to do. The time Silverdale Car Services Ltd spent in diagnosing that the driver’s side headlamp had an internal fault and was not able to be adjusted would have been minimal.

[25] The Tribunal is however satisfied that the trader should be ordered to reimburse the purchaser with the cost of the replacement of the headlamp and the painting of the bonnet of $986.72 which appear to the Tribunal to be reasonable.

Order

The trader shall pay the purchaser $986.72 immediately.

DATED at Auckland 10 February 2014.

C.H.Cornwell
Adjudicator