Van De Lagemaat v Asset Motors 2015 Limited Reference No. MVD 097/2016 (Auckland) [2016] NZMVDT 65; [2016] NZMVT Auckland 65 (19 May 2016)

Last Updated: 24 June 2016

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

[2016] NZMVT Auckland 65

Reference No. MVD 097/2016

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN LISA VAN DE LAGEMAAT

Purchaser

AND ASSET MOTORS 2015 LIMITED

Trader

MEMBERS OF TRIBUNAL
Mr C H Cornwell, Barrister & Solicitor, Adjudicator

Mr S D Gregory, Assessor

HEARING at Auckland on 16 May 2016

DATE OF DECISION 19 May 2016
APPEARANCES

Ms L van de Lagemaat, the purchaser

Mr D Jamieson, witness for the purchaser
Mr D Baldwin, Director for the trader

DECISION

The trader shall pay the purchaser $4,432.31 immediately.

REASONS

Background

[1] On 7 November 2015 Ms van de Lagemaat (“the purchaser”) bought a 2005 Holden Commodore registration DBU311 (“the vehicle”) for $4,250 from Asset Motors 2015 Limited (“the trader”). The vehicle had travelled 220,005kms at the time of sale.
[2] The purchaser claims the vehicle has failed to comply with the guarantee of acceptable quality in the Consumer Guarantees Act 1993 (“the Act”) and she seeks an order that the trader pay the estimated costs of repairing the vehicle of $6,156.79.
[3] The trader admits that the vehicle had a worn timing chain, which it has replaced but says that it has since discovered that the vehicle has damage to its transmission. The trader wishes to refund the purchaser with her full purchase price.
[4] Pursuant to cl 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 Tribunal’s decision was made by the adjudicator.

The issue

[5] The only issue requiring consideration is whether the trader is entitled to refund the purchaser with her purchase price or is it required to expend more than the purchase price in repairing the vehicle’s faults.

Relevant law

[6] Section 19(1) of the Act defines the manner in which a supplier (here the trader) may comply with a requirement to remedy a failure of any goods to comply with a guarantee. Section 19(1) of the Act provides as follows:

“19 Requirement to remedy

(1) A supplier may comply with a requirement to remedy a failure of any goods to comply with a guarantee-

(a) by-

(i) repairing the goods (in any case where the failure does not relate to title); or

(ii) curing any defect in title (in any case where the failure relates to title); or

(b) by replacing the goods with goods of identical type; or

(c) where the supplier cannot reasonably be expected to repair the goods, by providing a refund of any money paid or other consideration provided by the consumer in respect of the goods.”

Application of law to facts

[7] The purchaser told the Tribunal that the vehicle supplied to her by the trader was purchased by her partner, Mr Jamieson, as a gift. Mr Jamieson gave evidence that as a former car salesman he bought the vehicle in the knowledge that it had two faults. First, there was a noise thought to be in the fan bearing that required repair which was estimated as likely to cost $400-$450 to fix. Second, the left front tyre on the vehicle was worn and had a different tread pattern to the other three new tyres on the vehicle.

[8] The purchaser says that over the 2015 Christmas period she and Mr Jamieson discovered on jacking the vehicle up to replace the left front tyre that there was a gash in the floor pan of the vehicle underneath the front passenger’s seat. On 14 January 2016 a warning lamp in the vehicle’s dash lit up “check the drivetrain” and the vehicle’s engine started to make a noise. The purchaser says that she took the vehicle to her mechanic in Wellsford, Agridustrial Ltd, who charged her $182.31 to assess the vehicle’s faults. They told her the timing chain had probably stretched and jumped a tooth and the vehicle’s ECU was faulty and needed replacement. Agridustrial Ltd estimated the cost of repairs as $6,156.79.

[9] On 29 January 2016, Mr Jamieson sent the trader an email informing it of the vehicle’s faults and proposing either that the trader pay $3,200 towards the repair of the vehicle with the purchaser paying the balance, or, that the trader refund the purchase price and remove the vehicle from Agridustrial Ltd. The trader chose the second option and collected the vehicle from Agridustrial Ltd, took it to the trader’s repairer, Hann Automotive, who replaced the timing chain. Hann Automotive did not get the timing correct and the trader then had to send the vehicle to Davie Motors who found the timing chain marks were out by one tooth. They reset the timing marks and refitted the timing chains. Davie Motors then traced the power train warning light fault to the transmission which Mr Baldwin produced photographs to show has been damaged by impact to the transmission sump.

Conclusion

[10] In determining the issue as to whether the trader is entitled to refund the purchaser with her purchase price or is it required to expend more than the purchase price in repairing the vehicle’s faults I have decided, applying s 19(1)(c) of the Act, that the trader cannot reasonably be expected to repair the vehicle with faults to its ECU, transmission and damaged floor because the cost of doing so will very probably exceed the value of the vehicle and also the price paid by the purchaser for it. I have therefore decided that the trader should now refund the purchaser with her full purchase price of $4,250 and the costs she incurred in having Agridustrial Ltd assess the vehicle’s faults of $182.31; a total of $4,432.31.

DATED at AUCKLAND this 19th day of May 2016

C. H. Cornwell
Adjudicator