Singh v Taj Car Imports Limited t/a Taj Motors Reference No. MVD 150/2018 [2018] NZMVDT 138 (20 June 2018)

Last Updated: 16 July 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 138 Reference No. MVD 150/2018
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	PARMINDER SINGH
		Purchaser
	AND	TAJ CAR IMPORTS LIMITED T/A TAJ MOTORS
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Gregory, Assessor
HEARING at Auckland on 15 May and 12 June 2018
DATE OF DECISION 20 June 2018
APPEARANCES
P Singh, Purchaser P Singh, Witness for the Purchaser
R Singh, for the Trader

ORDERS

1. Parminder Singh’s application is dismissed.

DECISION

[1] The vehicle has no faults that breach the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the Act). The vehicle has a noisy timing chain, but that fault was caused by damage to the vehicle’s sump, which most likely occurred during Mr Singh’s ownership. The vehicle also has a leaking water pump, but that fault arose too long after purchase for the Act’s protections to apply.

REASONS

Introduction

[2] On about 30 October 2017, Mr Singh purchased a 2007 Lexus IS 250 from Taj Car Imports Ltd, trading as Taj Motors, for $12,800. The vehicle had an odometer reading of 114,950 km at the time of sale. The vehicle has since developed faults with its timing chain and water pump. Mr Singh has applied to the Tribunal seeking orders that Taj Motors rectify the vehicle’s faults at its expense.

The Issues

[3] The sole issue requiring consideration in this case is whether the vehicle has any fault that breaches the acceptable quality guarantee in s 6 of the Act.

Does the vehicle have a fault that breaches the acceptable quality guarantee?

[4] 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.
[5] 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.

[6] 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 Mr Singh’s subjective perspective.
[7] Mr Singh alleges that the vehicle has two faults that breach the acceptable quality guarantee — a noisy timing chain and leaking water pump.

The noisy timing chain

[8] Although Mr Singh’s evidence was not entirely clear as to precisely when the noisy timing chain was first identified, it appears that about one month after he purchased the vehicle he had it serviced by his mechanic. By this time, Mr Singh had noticed a noise coming from the vehicle’s engine.
[9] Mr Singh advises that his mechanic found damage to the vehicle’s oil sump. The mechanic removed the oil sump and found a broken timing chain tensioning guide in the sump. The mechanic then repaired the damaged sump. Mr Singh also advises that the mechanic test drove the vehicle and advised him that the vehicle had a fault with its timing chain. Mr Singh has since had the vehicle assessed by two other mechanics, Auckland Auto Clinic and Vehicle Finding & Selling Services Ltd, both of whom identified a noise from the timing chain and recommended that the timing chain should be replaced.
[10] This evidence satisfies me that the vehicle has a noisy timing chain that requires replacement. However, I do not consider that this fault breaches the acceptable quality guarantee in s 6 of the Act. That is because I am not satisfied that the fault was caused by a defect with the vehicle. Instead, I consider it more likely that the fault was caused by damage to the vehicle’s oil sump, which occurred after Mr Singh purchased the vehicle.
[11] Mr Gregory, the Tribunal’s Assessor, advises that the noisy timing chain was most likely caused by the vehicle’s timing chain becoming loose after the timing chain tensioner guide broke. Mr Gregory says that the timing chain is kept taut by the timing chain tensioner and the tensioner relies on oil pressure to maintain the correct tension in the chain. If the tensioner guide breaks, the timing chain loses tension allowing it to oscillate and make the noise experienced by Mr Singh.
[12] Mr Gregory says that, based on the evidence he heard, the most likely cause of the broken timing chain tensioner guide is that the vehicle lost oil pressure due to its oil pickup becoming blocked. Mr Gregory says that the oil pickup became blocked because the sump was dented, causing it to make contact with the pickup and consequently starving it of oil.
[13] I accept Mr Gregory’s advice and conclude that the noisy timing chain is caused by the vehicle losing oil pressure after its oil pickup became blocked due to damage to the sump.
[14] I must then consider how and when the sump became damaged. If the sump was damaged at the time of sale, then this fault will breach the acceptable quality guarantee as it is a pre-existing fault and cannot be attributed in any way to the actions of Mr Singh. If, however, I conclude that the sump was damaged during Mr Singh’s ownership, then the fault will not breach the acceptable quality guarantee as it will most likely have been caused by the manner in which Mr Singh has used the vehicle.
[15] Mr Gregory advises that the dent in the sump described by Mr Singh was most likely caused by either the sump impacting a solid object (such as a rock or traffic island) or somebody placing a jack under the sump and raising the vehicle. Mr Gregory also notes that the damage to the sump described by Mr Singh would have been easily visible to any person who inspected the underside of the vehicle, as it was by Mr Singh’s mechanic.
[16] In that regard, I note that the vehicle was inspected by the certifier from Import Vehicle Compliance & Repairs Ltd 10 days before Mr Singh purchased the vehicle. I note that the certifier serviced the vehicle, replaced front rotors and brake pads and two rear shock absorbers. Mr Gregory advises that, if the certifier had followed good industry practice, the certifier would have inspected the underside of the vehicle when performing this work, and if the vehicle had damage to its sump, the certifier would have noted and repaired that damage as part of the certification process.
[17] There is no evidence to show that the certifier found any damage to the vehicle’s sump. Accordingly, I consider that the evidence shows that it was unlikely that the sump was damaged before the vehicle was sold to Mr Singh. It follows that the damage was most likely caused during Mr Singh’s ownership and consequently, I am satisfied that the noisy timing chain is not a fault that breaches the acceptable quality guarantee in s 6 of the Act.
[18] Mr Singh denies causing the damage to the sump. I acknowledge this denial but am not persuaded by it. It is entirely possible that Mr Singh could have damaged the sump without knowing (e.g. by driving over a rock) and I am strongly persuaded by the fact that the certifier did not identify any damage to the sump when they inspected the vehicle shortly before Mr Singh purchased it.

The leaking water pump

[19] On about 14 May 2018, the vehicle’s water pump developed a leak. Vehicle Finding & Selling Services Ltd inspected the vehicle on 16 May 2018 and confirmed the existence of the water pump leak. Manukau Toyota inspected the vehicle on 21 May 2018 and also confirmed the water pump leak. It advised that the water pump required replacement.
[20] This evidence satisfies me that the vehicle has a leaking water pump. However, I am not satisfied that this fault breaches the acceptable quality guarantee in s 6 of the Act. The protections in the Act are not indefinite and last only for as long as is reasonable in the circumstances of each case, taking account of factors such as the price, age and mileage of the vehicle at the date of purchase and the time and distance driven since the vehicle was purchased.
[21] In this case, Mr Singh paid $12,800 for a 10-year-old vehicle that had travelled 114,950 km at the time of sale. Mr Singh has driven approximately 17,800 km in the six and a half months before the fault arose. Taking account of these factors, and particularly the distance the vehicle had travelled in the six and a half months before the fault occurred, I am satisfied that this vehicle has been as durable as a reasonable consumer would consider acceptable. Accordingly, the leaking water pump does not breach the acceptable quality guarantee.

Conclusion

[22] The vehicle has no faults that breach the acceptable quality guarantee in s 6 of the Act. The vehicle has a noisy timing chain, but that fault was caused by damage to the vehicle’s sump, which most likely occurred during Mr Singh’s ownership. The vehicle also has a leaking water pump, but that fault arose too long after purchase for the Act’s protections to apply. As a result, Mr Singh’s application is dismissed.
[23] During the second hearing, Mr Singh presented evidence from Vehicle Finding & Selling Services Ltd to suggest that the vehicle is “possibly in the early stages of a head gasket issue”. That evidence is insufficient to prove the existence of any fault and if Mr Singh wants to pursue a claim in relation to any fault with the vehicle’s head gasket, he will need to file separate proceedings with the Tribunal.

DATED at AUCKLAND this 20th day of June 2018

B.R. Carter
Adjudicator