Shaw v Forbes Motor Company Limited Reference No. MVD 402/2017 [2018] NZMVDT 55 (20 March 2018)

Last Updated: 4 May 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 055 Reference No. MVD 402/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	BENJAMIN JAMES SHAW
		Purchaser
	AND	FORBES MOTOR COMPANY LIMITED
		Trader
MEMBERS OF TRIBUNAL
J S McHerron, Barrister – Adjudicator
D Binding, Assessor
HEARING at Palmerston North on 23 February 2018
DATE OF DECISION 20 March 2018
APPEARANCES
B J Shaw, Purchaser (by AVL) A C Forbes, Director of Trader

DECISION

Benjamin Shaw's application is dismissed.

REASONS

Introduction

[1] Benjamin Shaw has experienced a number of faults with his 2008 Volkswagen Golf. Mr Shaw says the vehicle has “continued to let [him] down”, so much so that he has a “complete lack of faith and trust in [it]”. Mr Shaw has rejected the vehicle and asks the Tribunal to uphold his rejection.
[2] Only if the Tribunal accepts that the vehicle did not comply with the guarantee of acceptable quality is it necessary to consider whether to uphold Mr Shaw's rejection. Accordingly, the primary issue for the Tribunal to determine is whether the vehicle failed to comply with the guarantee of acceptable quality.

Issue one: Did the vehicle fail to comply with the guarantee of acceptable quality?

[3] Section 6(1) of the Consumer Guarantees Act 1993 (the Act) provides that where goods are supplied to a consumer there is a guarantee “that the goods are of acceptable quality”. According to s 2 of the Act, “goods” includes vehicles.
[4] "Acceptable quality" is defined in s 7 of the Act (as far as is relevant) 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.

[5] The question whether a vehicle is of acceptable quality is considered from the point of view of a reasonable consumer who is fully acquainted with the state and condition of the vehicle, including any hidden defects.
[6] The purchase price for the vehicle was $13,990, which included a one year mechanical breakdown insurance policy. Mr Shaw extended that policy to give him three years’ coverage for an additional $700. He also paid another $1,000 for an alloy wheel swap, bringing the total purchase price to $15,690. The vehicle had a relatively low odometer reading of 36,000 km at the time of purchase and Mr Shaw has travelled approximately 6,000 km in the vehicle since then.
[7] Mr Shaw has experienced a large number of problems with the vehicle, most of which have been remedied by Forbes Motor Company. In many cases, Mr Shaw has made claims under his mechanical breakdown insurance policy, with Forbes Motor Company meeting the cost of the insurance excess.
[8] A list of faults that have been remedied is as follows:

• (a) A water leak after Mr Shaw had owned the vehicle for three weeks. Forbes Motor Company says this was fixed at no cost to Mr Shaw.
• (b) An oil leak caused by a seeping oil filter which was replaced at Forbes Motor Company’s expense ($87.94).
• (c) A seized alternator belt tensioner leading to destruction of the fan belt, causing Mr Shaw to be stranded on the side of the road for several hours. The tensioner and fan belt have been replaced and the cooling system checked. The repair costs were met under Mr Shaw’s insurance policy, with the excess of $467.25 paid by Forbes Motor Company. Mr Shaw alleged that Forbes Motor Company had refused to pay $15 for freight associated with the replacement parts. This was disputed by Forbes’ director Mr Forbes who said that he had arranged for payment of the full amount of Saxton Hutt City’s invoice.
• (d) The petrol gauge stopped working. Gazley found a faulty fuel sender unit which it replaced at Forbes Motor Company’s expense.
• (e) Park light bulbs have been replaced at Forbes Motor Company’s expense.
• (f) A leak in the vehicle’s sun roof was repaired at Forbes Motor Company’s expense ($276).
• (g) The left rear door actuator required replacement. This was a matter that Mr Shaw raised after filing his Tribunal application. Forbes Motor Company has arranged for this to be repaired and has met all expenses not covered by insurance.

[9] Faults Mr Shaw alleges are still outstanding include the following:

• (a) Mr Shaw alleges that the audio unit in the vehicle is faulty. This affects his radio reception and, most importantly, his ability to have telephone calls, including with his clients, while driving the vehicle. Mr Shaw alleges that the sound quality of the audio unit is muffled and telephone conversations drop out every second or third sentence. Mr Shaw alleges he stipulated prior to purchasing the vehicle that it was essential that it had a good quality audio unit that would allow him to make business calls with his clients. Forbes Motor Company denies that Mr Shaw made any such stipulation prior to purchasing the vehicle. Mr Forbes denied having any conversation with Mr Shaw about the importance of the audio unit for phone conversation with his clients. He did, however, remember having a discussion with Mr Shaw about how to pair his phone with the audio unit. Mr Forbes has already replaced the audio unit with an identical unit at its cost. However, this has not solved the problem. Accordingly, Mr Forbes has offered to refund the cost of the audio unit ($80.50) on the condition that the existing unit in the car is returned to Forbes Motor Company. Mr Shaw has not returned the existing audio unit to Forbes Motor Company, so the offer to refund the cost has not been carried into effect.
• (b) The left wing mirror glass fell out of its frame in early October 2017 (nearly six months after Mr Shaw purchased the vehicle). This was replaced at a cost of $112.92, which has been paid by Mr Shaw or his business. Forbes Motor Company refuses to reimburse Mr Shaw for this repair. It says, based on advice from Gazley, that user error was involved, namely Mr Shaw left the wing mirror demister on for too long, causing the mirror adhesive to fail. This is disputed by Mr Shaw who says that he was not even aware the car had a wing mirror demister. He resented being accused of having caused this failure and described Mr Forbes' accusation as the “final straw prompting him to lodge his Tribunal claim”.
• (c) A fault with the trip meter causing it to reset. This has been investigated by Gazley, which found no fault.
• (d) Mr Shaw also has raised concerns about the vehicle’s battery, but a report from Gazley dated 29 January 2018 states that, after tests, the battery health is “good but could do with a recharge”.

Assessment of faults

[10] The alleged faults with the trip meter and battery can be easily dealt with. In each case, Mr Shaw has failed to establish any fault with the vehicle. Gazley has reported in respect of the trip meter that it did not find any fault. While Gazley thought the battery needs recharging, it described the battery health as being good. In any event, batteries are consumable items. Even if the battery required replacement, Mr Shaw would have difficulty in establishing it was faulty at the time he purchased the car, given there is no evidence showing any defect was present at that time.
[11] In relation to the wing mirror glass, the Tribunal’s Assessor Mr Binding did not consider that Mr Forbes had established that the cause of the mirror glass falling out was Mr Shaw’s use of the wing mirror demister. It is equally likely that, if there has been any overuse of the demister, it was by a previous owner. Mr Binding thought that the glass has peeled off its adhesive backing and that the cause of this may have been hot ambient conditions. It is difficult to know what conditions the vehicle has previously experienced, although I note that it was imported from Japan immediately prior to being sold to Mr Shaw.
[12] A bigger problem for Mr Shaw is that this defect occurred almost six months after he purchased the vehicle. Mr Binding and I consider that there is no proof either way whose fault it was. However, it occurred sufficiently long after the purchase that it is properly to be regarded as part of the cost of Mr Shaw’s ownership of the vehicle. In other words, this is a matter of wear and tear that he is responsible for repairing at his own cost.
[13] Finally, the issues Mr Shaw has experienced in relation to the audio unit were not supported by any form of technical report demonstrating any specific fault with the equipment. In his reply submissions, Mr Shaw sought to play a video from his phone which he said demonstrated static being produced by the unit. I did not allow Mr Shaw to play the video. It had not been produced in time to allow Forbes Motor Company to respond.
[14] In any event, I doubt whether the video would have helped Mr Shaw to prove anything was wrong with the unit. All radio units suffer occasional static, especially when out of range. The real issue with the audio unit appears to be that it is a low cost, basic unit. Mr Shaw’s needs are for a higher quality unit. He has not established that he stipulated a high quality audio unit as part of the purchase of the vehicle. There is no special condition to that effect in the vehicle offer and sale agreement. Nor is there any written correspondence between the parties establishing that this was a prerequisite for him purchasing the vehicle.
[15] Mr Forbes gave evidence that the radio was an after-market unit which he put into the car so that it would have the New Zealand radio station frequency range without requiring a band expander. The evidence does not support Mr Shaw’s submission that a high quality audio unit was a condition of sale. Nor does the evidence support Mr Shaw’s submission that the radio unit supplied is not of acceptable quality. No technical reports were supplied to the Tribunal regarding the radio allowing the Tribunal to make any findings as to the radio's quality. I consider that Forbes Motor Company’s offer to refund the price of the audio unit is a reasonable offer. That will allow Mr Shaw to purchase a better quality audio unit if he wishes to do so.
[16] In summary, to the extent there were any failures of quality with this vehicle not covered by insurance, they have all been fixed at Forbes Motor Company’s expense. As Mr Forbes told the Tribunal, it is necessary for Mr Shaw to assume a level of responsibility for maintaining the vehicle from now on. As there are no outstanding failures of the guarantee of acceptable quality, Mr Shaw is not entitled to reject the vehicle, or to obtain any other remedy against Forbes Motor Company. Accordingly, his claim must be dismissed.

J S McHerron
Adjudicator