Shewan v Auto Distributors AsiaPacific Limited t/a Fiat Chrysler NZ - Reference No. MVD 34/15 (Auckland) [2015] NZMVDT 40 (2 April 2015)

Last Updated: 2 June 2015

Decision No:AK 40/2015
Reference No. MVD 34/15

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN FAYE JOAN SHEWAN

Purchaser

AND AUTO DISTRIBUTORS ASIAPACIFIC LIMITED T/A FIAT CHRYSLER NZ

Manufacturer

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

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

HEARING at Auckland on 31 March 2015

APPEARANCES

Mrs F J Shewan, the purchaser

Mr J J Shewan, husband and witness for the purchaser
Mr A Wadge, Chief Financial Officer for the manufacturer
Mr B Keating, National Service Manager for the manufacturer

DECISION

[1] On 10 August 2010 Mrs Shewan (“the purchaser”) bought a new 2010 Dodge Journey registration FLQ854 (“the vehicle”) from Continental Car Services (“the trader”) for $37,268.

[2] The vehicle was manufactured outside New Zealand and the foreign manufacturer of the goods does not have an ordinary place of business in New Zealand but the person whom the Tribunal understands was the importer and distributor of the vehicle into New Zealand in August 2010 and hence the “manufacturer” as defined in s2 of the Consumer Guarantees Act 1993 (“the Act”) was Sime Darby Motor Group (NZ) Limited (“Sime Darby”).
[3] Auto Distributors AsiaPacific Limited trading as Fiat Chrysler NZ (“the manufacturer”) is and has since 1 May 2013 been the importer and distributor of Dodge vehicles into New Zealand.

[4] The purchaser produced evidence to prove that she had the vehicle serviced regularly by Dodge authorised service agents up until the failure of the transmission and that she had sought advice from Gulf Motor Holdings Limited (“Gulf”), an authorised Dodge service agent, concerning noise in the transmission when she had the vehicle serviced by Gulf on 3 September 2014. The purchaser claims that Gulf told her that because the vehicle was out of its three year manufacturer’s warranty and because they did not service transmissions that the purchaser should take the vehicle to a transmission specialist one of whom they recommended to be Kaspa Transmissions Glenfield Limited (“Kaspa”).

[5] The purchaser’s claim is that the transmission in the vehicle failed after she had used the vehicle to travel 58,544kms in a period of a little more than four years after the date of the supply of the vehicle. The evidence provided to the Tribunal shows this occurred because the hardening on the transmission bearings failed and resulted in damage to the transmission. As a result of that bearing failure the purchaser incurred costs of $5,199.05 in having the transmission overhauled. The purchaser had prior to filing this application unsuccessfully approached the manufacturer to seek reimbursement of her repair costs by asking it to invoke the Chrysler Goodwill Policy, a Policy of which the purchaser was only made aware after she had been advised by Gulf to have the transmission repaired by Kaspa.

[6] The Tribunal after hearing the claim brought by the purchaser against the manufacturer considers that the purchaser has probably brought her claim against the wrong party and that she should have brought her claim against the trader or Sime Darby because the trader supplied the vehicle to her and Sime Darby were the “manufacturer” of the vehicle at the time she bought the vehicle and her claim to the Tribunal is founded on a breach of the guarantee of acceptable quality under the Act.

[7] The Tribunal has accordingly decided, with regret, that it should dismiss the purchaser’s application against the manufacturer because that company appears not to have been the importer or the distributor of the vehicle at the time the purchaser bought it. The Tribunal recommends that the purchaser should seek legal advice as to the grounds on which she might consider refiling her claim against the trader and Sime Darby.

Order

The purchaser’s claim against Auto Distributors AsiaPacific Limited trading as Fiat Chrysler NZ is dismissed.

DATED this 2 April 2015

C.H Cornwell
Adjudicator