Laing v Dean t/a Dean Automotive Reference No. MVD 439/2018 [2018] NZMVDT 295 (17 December 2018)

Last Updated: 15 January 2019

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 295 Reference No. MVD 439/2018
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	DEANE MOSTYN LAING
		Purchaser
	AND	MARCUS MATE DEAN T/A DEAN AUTOMOTIVE
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Haynes, Assessor
HEARING at Auckland on 11 December 2018
DATE OF DECISION 17 December 2018
APPEARANCES
D M Laing, Purchaser J S Stevenson, Witness for the Purchaser
M M Dean, Trader M Preisig, Witness for the Trader

ORDERS

1. Deane Laing’s application is dismissed.

DECISION

[1] The vehicle’s faults do not breach the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the Act). Mr Laing’s application is therefore dismissed.

REASONS

Introduction

[2] On 10 February 2018, Mr Laing purchased a 2009 Mazda CX7 for $12,995 from Marcus Dean. The vehicle had an odometer reading of 119,672 km at the time of sale. The vehicle was supplied with a free 24 month Autosure warranty.
[3] Mr Laing alleges that the vehicle has had an oil leak, central locking fault, a fault that causes the vehicle to consume too much oil and fuel, and a faulty O2 sensor. Mr Laing has now disposed of the vehicle, and seeks to recover the cost of the free Autosure warranty and the cost of diagnosing and rectifying the vehicle’s faults.
[4] Marcus Dean submits that the vehicle was free of defects when it was sold to Mr Laing, but is prepared to compensate Mr Laing for the costs he has incurred in rectifying the oil leak and faulty O2 sensor.

The Issues

[5] Against this background, the sole issue requiring consideration in this case whether the vehicle had faults that breached the acceptable quality guarantee in s 6 of the Act.

Does the vehicle have faults that breach 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 Laing’s subjective perspective.

The oil leak

[9] Mr Laing advises that, on about 6 June 2018, he noticed oil leaking from the vehicle’s engine. He had the vehicle assessed by Ultimate Motor Group in Tauranga, which found an oil leak from the engine oil cooler. Ultimate Motor Group replaced the engine oil cooler, with Mr Laing paying an insurance excess of $206.80.
[10] I am not satisfied that this fault breaches the acceptable quality guarantee in s 6 of the Act. A reasonable consumer should have realistic expectations as to the quality and durability of a nine-year-old vehicle that had travelled more than 119,000 km of the time of sale. The engine oil leak arose more than four months, and 3,000 km after purchase and Mr Haynes, the Tribunal’s Assessor, advises that it is the type of fault that one can reasonably expect to arise from time to time in a Mazda CX7 of this age and mileage.
[11] Accordingly, taking account of the relatively minor nature of the oil leak, the price, age and mileage of the vehicle at the time of sale, the length of time since purchase and the distance travelled in that time, I am satisfied that, in relation to the oil leak from the engine oil cooler, the vehicle has been as durable as a reasonable consumer would consider acceptable.

The excessive consumption of oil

[12] Mr Laing says that he was regularly checking the vehicle oil levels after the engine oil cooler leak and that by in about mid-August 2018, he noticed that the vehicle was consuming excessive amounts of oil.
[13] Mr Laing sent the vehicle to Ultimate Motor Group who serviced the vehicle. As part of that service, Ultimate Motor Group put 10W/40 fully synthetic oil into the vehicle, despite the manufacturer’s specification requiring the use of 5W/30 oil. Ultimate Motor Group advised that it put thicker oil in the vehicle to stop it from burning so much oil.
[14] On the basis of the evidence provided by Mr Laing, I am not satisfied that he has proven that the vehicle had any fault that causes it to consume an excessive amount of oil. There is no evidence to show that the vehicle is consuming oil since it was serviced by Ultimate Motor Group in August 2018. For example, Mr Laing has not performed an oil consumption test, or provided any evidence from any mechanic as to the ongoing oil consumption. Further, I note that the vehicle has been assessed by Ultimate Motor Group on at least two occasions since August 2018, and there is no evidence in the documents from Ultimate Motor Group to show that the vehicle continued to consume oil.
[15] Accordingly, I cannot be satisfied that the vehicle has any fault that causes it to consume an excessive amount of oil.

The central locking fault

[16] In mid-September 2018, the vehicle developed a fault with its central locking system. Mr Laing took the vehicle to Ultimate Motor Group on about 17 September 2018, who confirmed the existence of the fault. It considered that the vehicle’s body control module or central locking module was faulty. It provided an estimate of $1,376.20 to perform the expected repairs.
[17] I am not satisfied that this fault breaches the acceptable quality guarantee in s 6 of the Act. The protections in the Act apply only for as long as is reasonable, taking account of factors such as the price, age and mileage of the vehicle, the length of the purchaser’s ownership and the distance travelled in that time. In this case, Mr Laing paid $12,995 for a nine-year-old vehicle that had travelled more than 119,000 km of the time of sale. Mr Laing had owned the vehicle for more than seven months before this fault arose and driven nearly 8,000 km in that time.
[18] In those circumstances, I am satisfied that, in relation to the central locking fault, this vehicle has been as durable as a reasonable consumer would consider acceptable.

The O2 sensor

[19] In early October 2018, the vehicle lost power, with an audible noise coming from its engine bay. Mr Laing again had vehicle assessed by Ultimate Motor Group, who found a fault with the vehicle’s O2 sensor. Ultimate Motor Group considered that the faulty O2 sensor was causing the vehicle to go into limp mode (explaining loss of power), and affecting the vehicles air/fuel ratio (which explains the increased fuel consumption complained of by Mr Laing). Ultimate Motor Group replaced the O2 sensor at a cost $403.60.
[20] Again, I am not satisfied that this fault breaches the acceptable quality guarantee in s 6 of the Act. Although the fault caused the vehicle to go into limp mode and consume excessive amounts of fuel, it was not a serious fault and was easily remedied (as evidenced by the $403.60 repair cost).

Further, Mr Haynes advises that it is the type of fault that a reasonable consumer could expect to arise in a nine-year-old Mazda CX7 that has travelled more than 120,000 km. Accordingly, considering that this fault arose nearly eight months after purchase, during which time Mr Laing had driven more than 9,500 km in the vehicle, I am satisfied that the vehicle has been as durable as a reasonable consumer would consider acceptable.

The knocking noise from the engine

[21] Mr Laing also alleged that the vehicle had an unacceptable knocking noise from its engine, which Ultimate Motor Group considered was likely to be caused by a noisy timing chain.

[22] Marcus Dean alleged that the noise was likely to be coming from the vehicle’s variable valve timing gear and was most likely caused by Ultimate Motor Group using 10W/40 oil in the engine, which is too thick for this vehicle. I heard evidence from Marcel Preisig, the owner of Spillman Automotive, who advised that Mazda CX7’s have fine oil galleries, and that using an oil that is thicker than the manufacturer’s specification can cause damage to the variable valve timing unit, which is operated by oil pressure. Mr Haynes agrees and considers that there was a real prospect that the noise from the vehicle’s engine is due to damage to the variable valve timing unit caused by oil used by Ultimate Motor Group in August 2018 when it serviced the vehicle.

[23] On that basis, and in the absence of any diagnosis from Mr Laing proving the precise cause of the noise from the engine bay, I am not satisfied that the noise from the engine is due to any fault with the vehicle that breaches the acceptable quality guarantee. Instead, applying s 7(4) of the Act, I consider that there is a real prospect that the noise has been caused by the way Mr Laing has used the vehicle — specifically by the oil used by Ultimate Motor Group when it serviced the vehicle in August 2018.

[24] Consequently, because I am satisfied that none of the vehicle’s faults breach that any of the guarantees in the Act, Mr Laing’s application is dismissed.

DATED at AUCKLAND this 17th day of December 2018

B.R. Carter
Adjudicator