Heinzelmann v Constellation Motors Ltd t/a Auckland Central Ssangyong - Reference No. MVD 331/2018 [2018] NZMVDT 233 (11 October 2018)

Last Updated: 15 November 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 233 Reference No. MVD 331/2018
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	RUDOLF HEINZELMANN
		Purchaser
	AND	CONSTELLATION MOTORS LTD T/A AUCKLAND CENTRAL SSANGYONG
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Haynes, Assessor
HEARING at Auckland on 18 September 2018
DATE OF DECISION 11 October 2018
APPEARANCES
R Heinzelmann, Purchaser (by audio-visual link)
K Anderson, for the Trader

ORDERS

1. Rudolf Heinzelmann’s application to reject the vehicle is dismissed.
2. Constellation Motors Ltd trading as Auckland Central SsangYong shall, within 15 working days of the date of this decision, rectify the leaking tonneau cover.

DECISION

[1] The vehicle has a leaking tonneau cover that breaches the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the Act). Mr Heinzelmann has not proven that vehicle has a fault that causes an acceleration flat spot or that Constellation Motors Ltd trading as Auckland Central SsangYong (Auckland Central SsangYong) promised to provide a memory card for the vehicle’s navigation system.
[2] Under s 18(2)(a) of the Act, Mr Heinzelmann is entitled to have the leaking tonneau cover rectified within a reasonable time. Mr Heinzelmann is not entitled to any other remedy.

REASONS

Introduction

[3] On 1 May 2018, Mr Heinzelmann purchased a new SsangYong Actyon Sport for $39,490. He also purchased a tonneau cover for $1,000.
[4] Mr Heinzelmann claims that the vehicle has an intermittent fault causing it to have a flat spot under acceleration. He says this fault is dangerous and that he was nearly involved in an accident because of the vehicle’s lack of acceleration. He also says that the vehicle’s tonneau cover is leaky and that Auckland Central SsangYong has failed to provide a promised navigation system memory card. Mr Heinzelmann has rejected the vehicle and seeks to recover the purchase price.
[5] Auckland Central SsangYong says that Mr Heinzelmann is not entitled to reject the vehicle. It says that it has assessed the vehicle and found no fault and that the symptoms complained of by Mr Heinzelmann are normal for this type of vehicle.

The Issues

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

• (a) Does the vehicle have faults that breach the acceptable quality guarantee in s 6 of the Act?
• (b) What remedy is Mr Heinzelmann entitled to under the Act?

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

[7] 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.
[8] 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.

[9] 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 Heinzelmann’s subjective perspective.

The acceleration flat spot

[10] Mr Heinzelmann says that after purchase he noticed that the vehicle had an intermittent fault that caused it to hit a flat spot when accelerating from a standstill or at low speed. Mr Heinzelmann says that the flat spot makes the vehicle unsafe, and has described an incident where he says he was nearly hit by an oncoming truck, as he was unable to accelerate as expected.
[11] The vehicle has been inspected by two mechanical workshops and neither has found a fault. The vehicle was inspected by Auckland Central SsangYong’s mechanics after Mr Heinzelmann had complained of the acceleration flat spot. It found no fault. The vehicle was then inspected by Hammond Motors in Kaitaia, who found no fault despite test driving the vehicle with Mr Heinzelmann and then retaining the vehicle over a weekend to see if it could replicate the fault.
[12] After the hearing, Auckland Central SsangYong provided further information regarding the symptoms experienced by Mr Heinzelmann. It advised that the “flat spot” experienced by Mr Heinzelmann may occur for one of two reasons:

• (a) Under heavy acceleration from a standstill, the vehicle intentionally limits the amount of fuel available to the engine to preserve fuel and ensure that the vehicle’s emissions do not exceed Euro 5 emissions requirements. This can cause a slight delay (of up to two seconds) before the vehicle has full power. It advises that the heavier the acceleration, the longer the delay.
• (b) Where heavy acceleration from a standstill causes the wheels to lose traction, the vehicle’s traction control engages, reducing torque to the engine until the wheels gain traction, or until the driver lifts the throttle.

[13] Although Mr Heinzelmann was adamant that the vehicle has a fault, I am not satisfied, on the evidence that was presented to the Tribunal, that this vehicle has a fault that causes it to lose acceleration that breaches the acceptable quality guarantee in s 6 of the Act.
[14] Mr Haynes, the Tribunal’s Assessor, advises that the symptoms complained of by Mr Heinzelmann are normal for this type of vehicle and are not a fault. Mr Haynes advises that the vehicle has a variable vane turbocharger, which can create a slight lag under acceleration before sufficient pressure builds up in the turbo’s turbine exhaust housing. Mr Haynes advises that this is consistent with the ordinary performance of vehicles with a variable vane turbocharger.
[15] I therefore cannot be satisfied that this vehicle has a fault that causes it to have an acceleration flat spot. Mr Heinzelmann’s evidence does not prove the existence of a fault, and given Mr Haynes’ advice that vehicles with a variable vane turbocharger will have a slight lag on takeoff, I am not satisfied that this vehicle’s performance breaches the acceptable quality guarantee.

The tonneau cover

[16] Although I do not consider that a reasonable consumer would expect a soft tonneau cover to be completely waterproof, and would understand that water may enter the rear of the vehicle through the cover, I accept Mr Heinzelmann’s evidence that, despite repairs by Auckland Central SsangYong, the tonneau cover continues to allow too much water to enter the rear of the vehicle.
[17] I am therefore satisfied that the vehicle’s tonneau is not of acceptable standard and therefore breaches the acceptable quality guarantee in s 6 of the Act.

The navigation system memory card

[18] Mr Heinzelmann also alleges that, despite promising to provide a navigation system memory card, Auckland Central SsangYong has failed to do so. He says that he advised the salesperson from Auckland Central SsangYong that he required a navigation system memory card and that the salesperson agreed to provide that to him.
[19] Auckland Central SsangYong says that no such promise was made. It says that the vehicle was not advertised as having a functioning navigation system because the vehicle requires a memory card, loaded with local maps, before it can be used in New Zealand. It says that these memory cards are not standard in this vehicle and are not available in New Zealand. It says that it advised Mr Heinzelmann that it would do its best to obtain a navigation card for the vehicle, but made no promise to do so.
[20] Based on this competing evidence, and in the absence of any corroborative evidence to show that Auckland Central SsangYong promised to deliver a navigation system memory card (such as a notation on the Vehicle Offer and Sale Agreement), I cannot be satisfied that Auckland Central SsangYong ever promised to provide a navigation system memory card. Accordingly, Mr Heinzelmann’s claim in relation to the memory card must fail.

What remedy is Mr Heinzelmann entitled to under the Act?

[21] The remedies relevant to this claim are set out in s 18 Act of the Act, which provides:

18. 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), the 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.

[22] Mr Heinzelmann is not entitled to reject the vehicle. The only proven fault, the leaking tonneau cover, is not a failure of a substantial character justifying rejection. Instead, under s 18(2)(a) of the Act, Mr Heinzelmann is entitled to have the leaking tonic cover rectified within a reasonable time.

Conclusion

[23] The vehicle has a leaking tonneau cover that breaches the acceptable quality guarantee in s 6 of the Act. Mr Heinzelmann has not proven that the vehicle has an acceleration flat spot or that Auckland Central SsangYong promised to provide a memory card for the vehicles navigation system.
[24] Under s 18(2)(a) of the Act, Mr Heinzelmann is entitled to have the leaking tonneau cover rectified within a reasonable time.
[25] Accordingly, Mr Heinzelmann’s application to reject the vehicle is dismissed and the Tribunal orders that Auckland Central SsangYong shall, within 15 working days of the date of this decision, rectify the leaking tonneau cover. Auckland Central SsangYong must be all costs associated with this repair, including any transportation costs.

DATED at AUCKLAND this 11th day of October 2018

B.R. Carter
Adjudicator