Webb v Performance & Prestige Limited Reference No. MVD 191/2017 [2017] NZMVDT 154 (11 October 2017)

Last Updated: 16 November 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2017] NZMVDT 154 Reference No. MVD 191/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	DAWN WEBB
		Purchaser
	AND	PERFORMANCE & PRESTIGE LIMITED
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Gregory, Assessor
HEARING at Auckland on 9 August and 4 October 2017
DATE OF DECISION 11 October 2017
APPEARANCES
Ms D Webb, Purchaser Mr T Rima, witness for the Purchaser
Mr A Bsisou, for the Trader Mr T Anderson, for the Trader Mr M Alnobani, witness for the Trader

ORDERS

A. Ms Webb’s application is dismissed.

DECISION

[1] The vehicle has had a number of faults during Ms Webb’s ownership. Performance & Prestige repaired the leaky rocker cover gaskets and the engine damage. Ms Webb has repaired, at her own expense, the faults with the aftermarket intercooler, turbo and tyres.
[2] Ms Webb is not entitled to recover the cost of the repairs she has paid for because she did not give Performance & Prestige an opportunity to perform those repairs. Under s 18(3) of the Consumer Guarantees Act (“the Act”), Ms Webb must have first given Performance & Prestige an opportunity to perform the repairs before she can recover the cost of having the repairs performed elsewhere.
[3] Ms Webb is also not entitled to recover the other costs she seeks. As a result, her application is dismissed.

REASONS

Introduction

[4] On 12 August 2016, Dawn Webb purchased a 2002 Subaru Impreza WRX STI from Performance & Prestige for $15,995. The vehicle had an odometer reading of 163,000 kms at the time of sale.
[5] The vehicle has had several faults during Ms Webb’s ownership:

• (a) Leaky rocker cover gaskets.
• (b) Significant engine damage.
• (c) An ill-fitting aftermarket intercooler.
• (d) Damage to the turbo, which required replacement.
• (e) Damage to two tyres, caused by improper wheel alignment.

[6] Performance & Prestige has repaired the leaky rocker cover gaskets and the engine damage at its expense. Ms Webb has repaired, at her expense, the faults with the aftermarket intercooler, turbo and tyres.
[7] Ms Webb has asked Performance & Prestige to reimburse her for the cost of those repairs. Performance & Prestige has declined to do so.
[8] Ms Webb applied to the Tribunal seeking to reject the vehicle and to recover the costs she has incurred. During the hearing, Ms Webb withdrew her rejection of the vehicle and stated that she was seeking to recover her costs only.

The Issues

[9] The issues requiring consideration in this case are:

• (a) Is Ms Webb entitled to recover the cost of repairs to the aftermarket intercooler, turbo and tyres under the Act?
• (b) What, if any, other costs is Ms Webb entitled to recover?

[10] In this decision I do not reached a conclusion as to whether any of the vehicle’s faults breach the acceptable quality guarantee in s 6 of the Act. This is because, for the reasons outlined below, even if the faults breached s 6 of the Act, Ms Webb would not be entitled to a remedy under the Act.

Is Ms Webb entitled to recover the cost of the repairs under the Act?

[11] Section 18 of the Act sets out the remedies under the Act. Section 18 provides:

“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—

(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,—

(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—

(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), he 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.”

[12] In accordance with s 18(2)(b) of the Act, Ms Webb is only entitled to recover the cost of repairs if she first required Performance & Prestige to remedy the fault and it refused or neglected to do so.
[13] In Acquired Holdings Ltd v Turvey,[1] the High Court found that under s 18(2) of the Act, where goods have failed to comply with the acceptable quality guarantee in s 6 of the Act, the consumer must give the supplier an opportunity to remedy the failure before it can have the fault repaired elsewhere and recover the cost. A consumer can only recover the cost of repairing the vehicle elsewhere if the trader refuses or neglects to do so, or does not succeed in doing so.

Ms Webb is not entitled to recover the cost of the repairs

[14] I am satisfied that Ms Webb did not give Performance & Prestige an opportunity to perform the repairs to the aftermarket intercooler, turbo and tyres.
[15] On 13 February 2017, Ms Webb had the vehicle’s rear tyres replaced by Ian Heem Motors Limited at a cost of $280. Those tyres had become excessively worn due to improper wheel alignment. Ms Webb accepted that she had not notified Performance & Prestige of this fault before performing the repair.
[16] Ms Webb then had the ill-fitting intercooler replaced by Manukau Subaroo Specialists on 17 May 2017, at a cost of $578.45. Ms Webb initially claimed that she had advised Performance & Prestige of the fault, but that it had declined to perform any repair. However, when the evidence was more closely scrutinised it became apparent that Ms Webb did not notify Performance & Prestige, or more particularly Tod Anderson, its contracted mechanic, of the fault until the repairs were already underway.
[17] Ms Webb then had the damaged turbo replaced by Manukau Subaroo Specialists on 2 August 2017 at a cost of $1,327.68. Ms Webb could produce no evidence to show that she notified Performance & Prestige of this fault before the repair was performed.
[18] Based on this evidence, I am satisfied that Ms Webb did not give Performance & Prestige the opportunity to repair these faults before she had the repairs performed elsewhere. It appears that Ms Webb chose to have these faults repaired elsewhere because she had become frustrated in her dealings with Performance & Prestige, and when these faults arose, she took it upon herself to have the vehicle repaired rather than once again deal with the trader. Her response is entirely understandable, but unfortunately for Ms Webb, by choosing to have the vehicle repaired elsewhere without giving the trader an opportunity to first do so, she has lost the right to recover the costs she incurred.

Is Ms Webb entitled to recover the other costs she seeks?

[19] Ms Webb also seeks to recover the following costs:

• (a) $1,614.96, being the loan repayments made while the vehicle’s engine damage was being repaired.
• (b) $339.84, being insurance payments made while the vehicle’s engine damage was being repaired.
• (c) $1,000 for petrol used while the engine damage was being repaired.
• (d) $2,000 as a punishment for misleading Ms Webb about the condition of the vehicle, in breach of the Fair Trading Act 1986.
• (e) $50, being the cost of filing this application.

[20] Ms Webb has provided no evidence in support of her claim to recover loan repayments, insurance payments and petrol. Even if she had, these amounts would not have been recoverable under the Act as they do not amount to loss or damage resulting from the vehicle’s faults.
[21] Further, Ms Webb has not proven that she was misled about the vehicle’s condition – and even if she had, I have no power to award any amount as punishment for a breach of the Fair Trading Act.
[22] Finally, Ms Webb is not entitled to recover the cost of filing this application. Under cl 14 of sch 1 to the Motor Vehicle Sales Act, I can only order Performance & Prestige to pay this amount if the matter ought reasonably to have been settled before the hearing and it refused to take part in settlement discussions, or behaved improperly during those discussions. That is not the situation here. There is no evidence to show that Performance & Prestige refused to participate in settlement discussions or behaved improperly. Accordingly, Ms Webb cannot recover the cost of filing her application.

Conclusion

[23] Ms Webb’s application is therefore dismissed.

DATED at AUCKLAND this 11th day of October 2017

B.R. Carter
Adjudicator

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[1] Acquired Holdings Ltd v Turvey [2007] NZHC 1251; (2007) 8 NZBLC 102,107.