Mgbenya v Raj Motors Limited - Reference No. MVD 187/2017 [2017] NZMVDT 122 (10 August 2017)

Last Updated: 15 September 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2017] NZMVDT 122 Reference No. MVD 187/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	JOHN MGBENYA
		Purchaser
	AND	RAJ MOTORS LIMITED
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Gregory, Assessor
HEARING at Auckland on 7 August 2017
DATE OF DECISION 10 August 2017
APPEARANCES
Mr J Mgbenya, Purchaser
Mr R Setia, for the Trader Mr R Dutta, Witness for the Trader

ORDERS

A. Mr Mgbenya’s application is dismissed.

DECISION

[1] Mr Mgbenya has not proven the existence of any fault that breaches the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (“the CGA”).
[2] Raj Motors Limited has not breached s 9 of the Fair Trading Act 1986 (”the FTA”). It did not engage in any conduct that could mislead Mr Mgbenya about the condition of the vehicle.
[3] Accordingly, Mr Mgbenya’s application is dismissed.

REASONS

Introduction

[4] On 7 April 2017, Mr Mgbenya purchased a 2013 Toyota Prius Hybrid for $16,500 from Raj Motors Limited.
[5] Mr Mgbenya did not test drive the vehicle before he purchased it. He says he was told by Raj Motors that a test drive was not necessary as the vehicle was in good condition and that Mr Mgbenya had a three month period in which he could return the vehicle if he was not happy with it.
[6] Mr Mgbenya has complained of faults with the vehicle since shortly after purchase. Mr Mgbenya says the vehicle tilted to one side at high speed and was difficult to drive and has had faults with its tyres and suspension.
[7] On 25 May 2017 Mr Mgbenya rejected the vehicle claiming that the vehicle has faults that Raj Motors have failed to repair and that Raj Motors misled him as to the condition of the vehicle.
[8] Raj Motors has not accepted this rejection and says that the vehicle has no faults and that it did not mislead Mr Mgbenya about the vehicle’s condition.

The Issues

[9] The issues that require consideration in this case are:

• (a) Does the vehicle have any faults that breach s 6 of the CGA?
• (b) Did Raj Motors engage in misleading conduct in breach of s 9 of the FTA?

Does the vehicle fail to comply with the guarantee of acceptable quality in s 6 of the CGA?

[10] Section 6 of the CGA imposes on suppliers and manufacturers of consumer goods "a guarantee that the goods are of acceptable quality." Section 2 of the CGA defines "goods" as including vehicles.
[11] The expression "acceptable quality" is defined in s 7 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.

(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) 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) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.”

[12] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in s 7(1)(a)-(e) of the CGA as modified by the factors set out in s 7(1)(f)-(j), from the perspective of a “reasonable consumer”. The test is an objective one; it is not a view of those factors from Mr Mgbenya’s subjective perspective.
[13] Mr Mgbenya alleges that the vehicle has had three faults:

• (a) An undiagnosed steering fault that causes the vehicle to tilt and become difficult to steer.
• (b) A fault with its tyres, that meant that two of the vehicle’s tyres required replacement shortly after purchase.
• (c) A fault with its right rear shock absorber.

Mr Mgbenya has not proven the existence of an undiagnosed steering fault

[14] The vehicle has been assessed on at least four occasions to find a fault with the vehicle’s steering. None of those assessors could find the fault complained of by Mr Mgbenya.
[15] In about mid-April 2017, Mr Mgbenya had the vehicle assessed by Raj Motors’ mechanic – whose name I do not know. Mr Mgbenya says that mechanic could find no fault with the vehicle but suggested that the vehicle’s wheels might need alignment. Tony’s Tyre Service in Papatoetoe aligned the vehicle’s wheels on 20 April 2017 at Raj Motor’s expense.
[16] On 2 May 2017, AA Auto Service & Repair in Greenmount assessed the vehicle. It could find no significant fault with the vehicle, and suggested that it was possible that the vehicle’s steering wheel needed to be re-centred.
[17] On 3 May 2017, Manukau Toyota Commercial Centre assessed the vehicle. It performed a wheel alignment and found that the angle of the wheels required a slight adjustment, but otherwise there was no fault with the vehicle.
[18] On 23 May 2017, Manukau Toyota again assessed the vehicle. Manukau Toyota centred the steering wheel but found no fault with the steering operation of the vehicle.
[19] Other repairs have been performed on the vehicle. Mr Mgbenya has twice replaced tyres on the vehicle. He has also had the right rear shock absorber replaced. Mr Mgbenya nonetheless advises that none of these assessments or repairs has fixed the fault and the vehicle still tilts and becomes difficult to steer when driven at speed.
[20] After the Tribunal hearing, Mr Gregory, the Tribunal’s assessor, took a test drive with Mr Mgbenya. Mr Gregory drove the vehicle on the motorway, and at the speeds at which the fault occurs. Mr Gregory advises that the vehicle did not demonstrate any of the symptoms described by Mr Mgbenya, and drove as he would expect a Toyota Prius of this age and mileage to perform.
[21] Taking account of the evidence from the repairers who have assessed this vehicle, and from Mr Gregory following the test drive, I am satisfied that Mr Mgbenya has not proven that the vehicle has any fault that causes it to tilt or become difficult to steer when driven at speed.

Mr Mgbenya has not proven any fault with the vehicle’s tyres

[22] In about mid-April 2017, Mr Mgbenya complained to Raj Motors about the condition of two of the vehicle’s tyres.
[23] Raj Motors denied that there was any fault with the tyres, but as an act of goodwill agreed to supply two replacement tyres, which were fitted by Tony’s Tyre Service on 20 April 2017. Mr Mgbenya was not happy with the state of those tyres, and purchased two new tyres from Japanese Tyre Company on 28 April 2017, at a cost of $180.55.
[24] The evidence presented by Mr Mgbenya is not sufficient to show that the vehicle had any fault with its tyres, or that the tyres breached the acceptable quality guarantee. Mr Mgbenya says that two of the tyres were cracked, but he presented no other evidence as to the state of the tyres. He has expressed an opinion that the tyres required replacement, but he has provided no reports or assessments from qualified assessors or repairers to support that view.
[25] Further, I note that the vehicle passed a warrant of fitness assessment on 7 April 2017, and a certificate of fitness inspection on 18 April 2017. The fact that the vehicle passed both inspections a matter of days before Mr Mgbenya complained about the condition of the tyres strongly suggests that there was no fault with the tyres, and certainly not a fault that breached the acceptable quality guarantee.

The right rear shock absorber

[26] On 4 May 2017, Mr Mgbenya had the vehicle’s shock absorbers assessed by Manukau Auto & Tyre, who considered that the vehicle’s right rear shock absorber was “soft” and required replacement. The replacement cost $241.29.
[27] Notwithstanding this assessment, I am not satisfied that the vehicle had a fault with its right rear shock absorber that breached the acceptable quality guarantee. As noted above, the vehicle passed warrant of fitness and certificate of fitness assessments in April 2017. Its suspension components were also inspected by Manukau Toyota on 3 May 2017, who found no fault with the vehicle’s suspension. Mr Gregory advises that the shock absorber was still functioning, would not have failed a warrant of fitness assessment and would not have materially affected the performance of the vehicle.
[28] I therefore consider that none of the alleged faults with the vehicle breaches the acceptable quality guarantee in s 6 of the CGA.

Did Raj Motors engage in misleading conduct?

[29] Mr Mgbenya alleges that Raj Motors engaged in misleading conduct in breach of s 9 of the FTA, in two regards:

• (a) Raj Motors told him he did not need to test drive the vehicle as it was in good condition. Mr Mgbenya says he was misled as the vehicle is not in good condition and he would have identified the steering fault if he had test driven the vehicle.
• (b) Raj Motors told him he could return the vehicle within three months if he was unhappy with it. Mr Mgbenya says he was misled because Raj Motors have not allowed him to return the vehicle.

[30] Section 9 of the FTA states:

“9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

The representation about the need for a test drive is not misleading

[31] Raj Motors denies telling Mr Mgbenya that a test drive was not necessary. Although I prefer the evidence of Mr Setia and Mr Dutta on behalf of Raj Motors, I do not have to resolve the dispute as to whether the representation was actually made. That is because, even if it was made, there is no evidence to show that the representation was actually misleading.
[32] I am satisfied that the vehicle was in good condition when it was supplied to Mr Mgbenya. The vehicle has been thoroughly assessed and no significant faults have been found.
[33] As discussed above, the vehicle passed warrant of fitness and certificate of fitness inspections in April 2017. Mr Gregory, the Tribunal’s assessor advises that those inspections are thorough and show the vehicle is safe and likely free of faults. Further, I am satisfied that the steering, tyre and suspension faults complained of by Mr Mgbenya have not been proven to exist,
[34] In the circumstances, I am not satisfied that the alleged representation was misleading.

Raj Motors did not tell Mr Mgbenya that he could return the vehicle within three months

[35] Mr Mgbenya alleges that when he purchased the vehicle, Raj Motors told him he could return the vehicle within three months if he was unhappy with it. Mr Mgbenya says this is misleading as Raj Motors has not allowed him to return the vehicle.
[36] Raj Motors says it did not tell Mr Mgbenya that he could return the vehicle. Instead, Raj Motors says that it told Mr Mgbenya that, if the vehicle had any faults within three months of purchase, Raj Motors would take care of the fault.
[37] Mr Setia, who sold the vehicle to Mr Mgbenya, was clear in his evidence as to what he told Mr Mgbenya. He said he told Mr Mgbenya that he would repair any fault that occurred within the vehicle within three months.
[38] It is for Mr Mgbenya to prove that he was told he could return the vehicle within three months if he was unhappy with it. On the evidence I heard, Mr Mgbenya has not proven his claim. I found Mr Setia’s version of what was said to Mr Mgbenya to be entirely plausible, and in the absence of any evidence corroborating Mr Mgbenya’s version of events, I am not satisfied that Mr Mgbenya was told that he could return the vehicle if he was unhappy with it.
[39] I am therefore satisfied that Raj Motors has not engaged in misleading conduct in breach of s 9 of the FTA.

Conclusion

[40] Mr Mgbenya’s application is dismissed.

DATED at AUCKLAND this 10th day of August 2017

B.R. Carter
Adjudicator