Needham v Skywings Auto Trade Limited Reference No. MVD 258/2017 [2017] NZMVDT 166 (30 October 2017)

Last Updated: 16 November 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2017] NZMVDT 166 Reference No. MVD 258/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	EMMA JANE NEEDHAM
		Purchaser
	AND	SKYWINGS AUTO TRADE LIMITED
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Haynes, Assessor
HEARING at on 25 October 2017
DATE OF DECISION 30 October 2017
APPEARANCES
Ms E J Needham, Purchaser
No appearance for the Trader

ORDERS

1. Ms Needham’s application is dismissed. The vehicle’s oil consumption is not abnormal or excessive.

DECISION

[1] The vehicle does not have any faults that breach the acceptable quality guarantee in s 6 of the Consumer Guarantees Act (“the Act”). Ms Needham’s application is therefore dismissed.

REASONS

Introduction

[2] On 12 January 2016, Emma Needham purchased a 2004 Toyota Corolla from Skywings Auto Trade Limited for $7,000. The vehicle had an odometer reading of 90,411 kms at the time of purchase.
[3] Ms Needham alleges that the vehicle has been consuming an excessive amount of oil and is concerned that the vehicle’s oil consumption is indicative of a significant and costly fault. Ms Needham has unsuccessfully attempted to obtain a remedy from Skywings, who has been entirely uncooperative. Ms Needham has now applied to the Tribunal seeking to reject the vehicle.
[4] Despite receiving a Notice of Hearing setting out the time and place of the Tribunal hearing, Skywings did not attend. The hearing proceeded in its absence.

The Issue

[5] There is one issue to be determined in this case – does the vehicle have a fault that breaches the acceptable quality guarantee in s6 of the Act?

Does the vehicle have a fault that breaches the acceptable quality guarantee in s 6 of the Act?

[6] Section 6 of the Act imposes on suppliers and manufacturers of consumer goods "a guarantee that the goods are of acceptable quality." Section 2 of the Act defines "goods" as including vehicles.
[7] 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.”

[8] 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 Act 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 Ms Needham’s subjective perspective.
[9] Ms Needham alleges that the vehicle is consuming excessive amounts of oil. Ms Needham provided the following evidence in support of this allegation:

• (a) On 3 August 2016, the vehicle was serviced by Automotivated Limited, who put four litres of oil into the vehicle. The vehicle’s odometer reading was 101,324 kms at that date.
• (b) On 17 January 2017, Protech Automotive Limited put a further 1.25 litres of oil into the vehicle. The vehicle’s odometer reading was 105,983 kms at that date.
• (c) On 23 May 2017, Protech Automotive put a further 0.75 litres of oil in the vehicle. The odometer reading at that date was 108,698.

[10] This evidence shows that between August 2016 and May 2017, the vehicle travelled 7,374kms and consumed two litres of oil.
[11] I am not satisfied that this level of oil consumption is indicative of a fault with this vehicle.
[12] Mr Haynes, the Tribunal’s Assessor, advises that it is not uncommon for engines in vehicles of this age and mileage to use oil, due to general wear and tear on the piston rings and valve stem seals. Mr Haynes says that the consumption of two litres of oil over more than 7,000 kms of driving is not necessarily indicative of a fault with the vehicle, and is in keeping with the consumption that one could reasonably expect in a vehicle of this age and mileage.
[13] Mr Haynes also notes that Ms Needham has been using fully synthetic oil in the vehicle, which may have contributed to this vehicle’s oil consumption. Mr Haynes advises that synthetic oil can be too slippery for some aging engines, causing more oil to bypass the rings, increasing oil consumption. Mr Haynes notes that the use of standard mineral oils will generally reduce oil consumption in vehicles of this age and mileage, while still protecting the engine.
[14] Based on the evidence from Automotivated and Protech Automotive as to the extent of the vehicle’s oil consumption, and the advice I have received from Mr Haynes, I am not satisfied that the vehicle’s oil consumption is excessive or that the vehicle has any fault that breaches the acceptable quality guarantee in s 6 of the Act.

[15] Accordingly, Ms Needham’s application is dismissed.

DATED at AUCKLAND this 30th day of October 2017

B.R. Carter
Adjudicator