Sunnex v Te Rapa Wholesale Cars 2009 Ltd - Reference No. MVD 262/2018 [2018] NZMVDT 225 (1 October 2018)

Last Updated: 15 November 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 225 Reference No. MVD 262/2018
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	SHANNON LEIGH SUNNEX
		Purchaser
	AND	TE RAPA WHOLESALE CARS 2009 LTD
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S D Gregory, Assessor
HEARING at Hamilton on 27 September 2018
DATE OF DECISION 1 October 2018
APPEARANCES
S L Sunnex, Purchaser
D Rutherford, for the Trader G Pointen, Witness for the Trader

ORDERS

1. Shannon Sunnex’s application is dismissed.

DECISION

[1] Mr Sunnex has not proven that the vehicle has a fault that causes its tyre pressure sensor warning light to intermittently illuminate. Accordingly, his application is dismissed.

REASONS

Introduction

[2] On 23 November 2017, Mr Sunnex purchased a 2004 BMW X3 for $17,995 from Te Rapa Wholesale Cars 2009 Ltd (Te Rapa Wholesale Cars). The vehicle had an odometer reading of 68,203 km at the time of sale.
[3] The vehicle has had faults with its sunroof and battery, which Te Rapa Wholesale Cars has rectified. Mr Sunnex was also, initially, disappointed with the terms of the loan arranged by Te Rapa Wholesale Cars. Those matters have now been resolved to Mr Sunnex’s satisfaction. However, Mr Sunnex continues to allege that the vehicle has an ongoing fault that causes its tyre pressure warning light to intermittently illuminate. He has applied to the Tribunal seeking orders that Te Rapa Wholesale Cars rectify that fault.
[4] Te Rapa Wholesale Cars says that the vehicle has no fault. It says that the tyre pressure warning light is working as it should.

The issues

[5] The sole issue for determination in this case is whether the vehicle has a fault with its tyre pressure warning system that breaches the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the Act).

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

[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 Mr Sunnex’s subjective perspective.
[9] Mr Sunnex says that, in December 2017, the vehicle’s tyre pressure light illuminated while driving between Hamilton and Tauranga. He says he assessed the vehicle’s tyres and found no flat tyres or obvious lack of tyre pressure. Despite there being no obvious cause, the tyre pressure light again illuminated on the drive home to Hamilton.
[10] Mr Sunnex then contacted Te Rapa Wholesale Cars, who had the vehicle assessed by Te Rapa Auto Electrical, who found various fault codes relating to the vehicle’s sensors, but none relating to the tyre pressure sensors. Te Rapa Auto Electrical cleared the fault codes and returned the vehicle to Mr Sunnex.
[11] The tyre pressure warning light did not illuminate again until June 2018, when the vehicle had a flat tyre. Mr Sunnex put the space saver tyre on the vehicle, and the warning light continued to illuminate. Concerned that this was indicative of an ongoing fault, Mr Sunnex contacted Te Rapa Wholesale Cars, who further assessed the vehicle.
[12] Te Rapa Wholesale Cars then took the vehicle to Tyre Tracks in Hamilton, who found no faults with the tyre pressure warning system. It considered that the system was working as it was supposed to and the tyre pressure warning light had illuminated because the tyre was flat, and because Mr Sunnex had installed the smaller space saver wheel, which would have caused the tyre pressure sensors to continue to trigger the warning light. The vehicle was then returned to Mr Sunnex, who says that the tyre pressure warning light has illuminated twice since. Mr Sunnex says that the ongoing illumination of the tyre pressure warning light is indicative of a fault with the vehicle.
[13] Te Rapa Wholesale Cars says that the vehicle has no fault. It says that the tyre pressure warning light is working as it should, illuminating when a tyre is flat or where there is sufficient variation in tyre pressure to cause the tyre pressure sensors to trigger a warning light.
[14] Mr Gregory, the Tribunal’s Assessor, advises that the tyre pressure sensors in vehicles of this make and model can be sensitive to pressure variations between the vehicle’s tyres, and can trigger warning lights where small variations in tyre pressure are detected. Mr Gregory says that tyre pressure warning lights are more likely to illuminate on long journeys, when the heat generated from the tyres affects the air pressure inside the tyre. The sensors then detect the change in air pressure in the tyre, triggering the warning light.
[15] Before the hearing, the Tribunal directed Mr Sunnex to have the vehicle’s faults diagnosed and quoted for repair. Mr Sunnex did not have the faults diagnosed or quoted for repair, and provided no other evidence to prove that the tyre pressure warning lights are illuminating when they should not. Given Mr Gregory’s advice that the tyre pressure sensors in these vehicles can be sensitive, and in the absence of any evidence from Mr Sunnex proving the existence of a fault, I am not satisfied that the vehicle has any fault that causes its tyre pressure warning lights to intermittently illuminate that would breach the acceptable quality guarantee in s 6 of the Act.
[16] Accordingly, Mr Sunnex’s application is dismissed.
[17] As a final point, Mr Gregory notes that, if Mr Sunnex remains concerned about the frequency at which the warning light illuminates, using the same brand of tyre on all wheels and filling the vehicle’s tyres with nitrogen (which should cost between $30 and $100) should reduce the frequency of the tyre pressure warning light illuminating.

DATED at AUCKLAND this 1st day of October 2018

B.R. Carter
Adjudicator