Percy v Matt Blair Limited t/a Matt Blair Motors - Reference No. MVD 292/2016 (Wellington) [2017] NZMVDT 1087; [2017] NZMVT Wellington 87 (24 January 2017)

Motor Vehicle Disputes Tribunal of New Zealand

[Index] [Search] [Download] [Help]

---

Percy v Matt Blair Limited t/a Matt Blair Motors - Reference No. MVD 292/2016 (Wellington) [2017] NZMVDT 1087 (24 January 2017); [2017] NZMVT Wellington 87

Last Updated: 28 February 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

Reference No. MVD 292/2016 (WN87)

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN MICHAEL GLENN PERCY

Purchaser

AND MATT BLAIR LIMITED T/A MATT BLAIR MOTORS

Trader

MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor

HEARING at Christchurch on 17 January 2017

DATE OF DECISION 24 January 2017
APPEARANCES

M G Percy, Purchaser
E B Percy, Father of Purchaser

M E Blair, Director of Trader

DECISION

The purchaser's rejection of the vehicle is not upheld and his application is dismissed.

REASONS

Introduction

[1] Michael Percy seeks to reject his 2006 Ford Escape because, after three attempts, the trader was unable to prevent an orange ‘check engine’ light from reappearing. However, the trader was able to diagnose the cause and rectify the problem on the fourth attempt, and denies that Mr Percy is entitled to reject his vehicle. This claim raises the following issues:

• (a) Did the vehicle fail to comply with the guarantee of acceptable quality in s 6 of the Consumer Guarantees Act 1993 (“Act”)?
• (b) If not, did the trader remedy the failure within a reasonable time in accordance with s 18 of the Act?

Background

[2] On 1 June 2016, Michael Percy purchased a 2006 Ford Escape with 101,500 km on the odometer for $11,990 from Matt Blair Limited trading as Matt Blair Motors.
[3] Six weeks after purchase, on 14 July 2016, Mr Percy noticed that an orange ‘check engine’ light was illuminated on the dashboard. No other signs of engine malfunction were noted at that or any other time. Mr Percy contacted Mr Blair, who arranged for the vehicle to be taken to an auto electrician, Lichfield Motors. Mr Percy was provided with a loan vehicle by the trader for the period in which his vehicle was being repaired. Lichfield Motors replaced an oxygen sensor on the vehicle at a cost of $391, which was paid for by Matt Blair Motors.
[4] Mr Percy collected the vehicle on 23 July 2016. The orange ‘check engine’ light reappeared the next day.
[5] On 25 July 2016, Mr Percy contacted the trader and returned the vehicle to the trader’s premises. Again, Mr Percy was given a loan vehicle and Matt Blair Motors arranged for the vehicle to be looked at by another auto electrician, Lineside Auto Electrical.
[6] Lineside scanned the vehicle for fault codes and found code P2188 (rich at idle). Lineside also checked live data and found long and short term fuel trims were showing a rich condition. Lineside removed the EGR valve and inspected and tested it confirming that it was sealing satisfactorily. Lineside then cleaned the throttle body and airflow sensor and replaced worn spark plugs. The fault codes were cleared and the vehicle was road tested. Lineside noted a change in the fuel trims and confirmed the vehicle was operating satisfactorily. Lineside’s invoice dated 28 July 2016 was in the sum of $427.42, which was paid for by the trader.
[7] On 29 July, Mr Percy collected the vehicle from Matt Blair Motors, which advised Mr Percy of the repairs that had been carried out and told him that it might take a couple of visits to completely rectify the issue. Matt Blair Motors confirmed that it would continue to make a loan vehicle available to Mr Percy, if he needed it, if the light were to come back on. Mr Blair told the Tribunal that, as far as he understood it, Mr Percy was happy with this assurance.
[8] Unfortunately, however, the orange 'check engine' light reappeared the next day. Mr Percy contacted the trader, which assured him it would get the problem fixed. Matt Blair Motors arranged for a driver to pick up the vehicle on 1 August 2016, and swap it with a loan car. The vehicle remained in Matt Blair Motors’ custody until 11 August 2016. During this period, the vehicle was returned to Lineside Auto Electrical, which discovered fuel found in the purge canister. Lineside produced a report for the Tribunal which indicated that Ford Escapes and Mazda Tributes are prone to trigger fault code P2188 if the fuel tank is overfilled, leading to fuel overflowing into a purge canister. The vehicle was returned to Mr Percy on 11 August, but the orange light reappeared a third time on 14 August 2016. The vehicle was once again returned to Lineside Auto Electrical, where it was discovered that a connection pin in the multiplug on the airflow sensor required soldering. The trader submitted that this could have been damaged as the plug had to be removed several times when diagnosing the problem.
[9] In the meantime, on 15 August 2016, Mr Percy requested a refund. This was followed up by a letter from Mr Percy’s lawyer purporting to reject the vehicle on the basis that it has an electrical or engine fault and therefore is not of acceptable quality in accordance with s 6 of the Act. Mr Percy’s lawyer asserted that “it is clear that the failure is unable to be remedied by yourself”. Mr Percy returned the vehicle to Matt Blair Motors on 17 August 2016, where it has remained ever since.
[10] Matt Blair Motors arranged for the vehicle to be checked for any outstanding fault codes by Avon City Ford on 25 August 2016, and Avon City Ford confirmed that no fault codes appeared on the vehicle. The trader has kept the vehicle in secure custody since then and Mr Blair submitted to the Tribunal that he is satisfied that the problem is fixed.

Did the vehicle fail to comply with the guarantee of acceptable quality in s 6 of the Act?

[11] Section 6(1) of the Act provides that where goods are supplied to a consumer there is a guarantee “that the goods are of acceptable quality”. According to s 2 of the Act, “goods” includes vehicles.
[12] The meaning of acceptable quality is defined in s 7 of the Act (as far as is relevant) 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,—

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—

(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.

(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.

[13] The question whether a vehicle is of acceptable quality is considered from the point of view of a reasonable consumer who is fully acquainted with the state and condition of the vehicle, including any hidden defects.
[14] In this case, the only “defect” was the intermittent appearance of an orange ‘check engine’ light. The cause of this “defect” was eventually found to be overfilling of the fuel tank. An associated issue arose, probably as a result of the diagnostic testing involved, namely that terminals became loose in the airflow sensor plug, which needed to be replaced. As explained by Lineside Auto Electrical Limited in its report dated 6 December:

The P2188 fault code is a difficult one to rectify as there are so many variables that can cause a rich or lean idle condition, this condition nearly always has no effect at all to the way the vehicle runs so you often don’t see any improvement as such once the repair has been carried out.

A Blackwell’s Mazda technician I spoke to referred to it as the “nightmare code”, it’s one that just has to be worked through and unfortunately it can be days even hundreds of kilometres before it reappears if the item inspected/repaired wasn’t the root cause.

[15] This report from Lineside Auto Electrical explains why it took multiple visits before the problem of the orange ‘check engine’ light was finally solved. In the meantime, there were no other indications that anything else was wrong with the vehicle’s operation.
[16] Mr Blair submitted that Mr Percy must have overfilled the fuel tank, causing the problem. This raises the question whether s 7(4) of the Act applies, if overfilling of the fuel tank was inconsistent with the manner of use that a reasonable consumer would expect to obtain from the vehicle and the vehicle would have complied with the guarantee of acceptable quality otherwise.
[17] The Tribunal did not receive any evidence allowing it to determine exactly when the vehicle was overfilled and who by. Mr Percy’s father denied that any overfilling of the vehicle had occurred while the vehicle was in his son's possession. However, it seems unlikely that overfilling would have occurred before the purchaser purchased the vehicle as, in that case, the 'check engine' light would be likely to have appeared sooner than six weeks after purchase.
[18] Ultimately, it does not matter whether or not the purchaser overfilled the fuel tank. Either way, very little was wrong with this vehicle other than a warning light appearing. In my view, and that of the Tribunal’s Assessor Mr Binding, a ‘check engine’ light on its own is not a sufficient basis for concluding that this vehicle failed to comply with the guarantee of acceptable quality. It is necessary to explore the underlying reason for a warning light before the Tribunal can reach conclusions in relation to any breach of s 6.
[19] As I will go on to explain, Matt Blair Motors took full responsibility for identifying the cause of the orange ‘check engine’ and ultimately rectifying that problem so that it did not reappear. All the costs in ascertaining the cause and fixing it were met by the trader. A loan car was provided to Mr Percy whenever he needed it. The only question remaining is whether, even if there was a failure of the vehicle to comply with the guarantee of acceptable quality, Matt Blair Motors remedied that failure within a “reasonable time” for the purposes of s 18(2)(a) of the Act.

Did the trader remedy the failure within a reasonable time in accordance with s 18 of the Act?

[20] On the assumption that the vehicle failed to comply with the guarantee of acceptable quality, I will go on to consider this second issue. That is because Mr Percy would only have a right to reject the vehicle under s 18(2)(b)(ii) of the Act if he can demonstrate that Matt Blair Motors did not succeed in remedying that failure within a reasonable time. Mr Percy argued that, as the failure had recurred three times, then s 18(2)(b) is satisfied.
[21] I disagree with Mr Percy's submission. As explained, by reference to the report of Lineside Auto Electrical, diagnosis of the underlying cause of the ‘check engine’ light and the P2188 fault code was not straightforward and a process of elimination was required to ascertain what was causing the light to appear. This was explained to the purchaser and he was provided with a loan vehicle at every opportunity so that he would continue to have a vehicle to drive. The purchaser needed to be patient while the problem was diagnosed and solved. Even though it would have been inconvenient for him, I am not persuaded that any such inconvenience outweighs the trader’s right to have a reasonable opportunity to remedy the problem. It took several visits before the problem was fixed, but overall it was remedied within a relatively brief time. The ‘check engine’ light appeared on 14 July 2016 and it was confirmed to be finally fixed on 25 August 2016, just over a month later.
[22] Accordingly, I conclude that even if the vehicle failed to comply with the guarantee of acceptable quality under s 6 of the Act, that Matt Blair Motors remedied that failure within a reasonable time in accordance with its obligations under s 18 of the Act.
[23] It follows that the purchaser’s application must be dismissed.

J S McHerron
Adjudicator