Cronin v Hutt Valley Wholesalers Limited Reference No. MVD 4/2018 [2018] NZMVDT 99 (4 May 2018)

Last Updated: 18 June 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

[2018] NZMVDT 099
Reference No. MVD 004/2018

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN KYLIE MARIE CRONIN

Purchaser

AND HUTT VALLEY WHOLESALERS LIMITED

Trader

MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor

HEARING at Wellington on 10 April 2018

DATE OF DECISION 4 May 2018
APPEARANCES

K M Cronin, Purchaser (by AVL)
A B Gawn, Director of Trader
G Key, Trader's witness

DECISION

Kylie Cronin's application is dismissed.

REASONS

Introduction

[1] Shortly after purchasing a 2010 BMW X3, Kylie Cronin was advised that its harmonic balancer pulley was cracked and required replacement. Three and a half months after purchase, she had to replace the vehicle's rear tyres. Ms Cronin seeks to recover the cost of these repairs from the trader, Hutt Valley Wholesalers Limited. Hutt Valley Wholesalers denies it is liable to pay Ms Cronin these costs. It says the proposed repairs relate to wear and tear items and there is no evidence the vehicle should not have been given a warrant of fitness at the time of purchase, in June 2017.
[2] From this background, the following issues arise:

• (a) Did the vehicle fail to comply with the guarantee of acceptable quality?
• (b) Did the vehicle fail to comply with its description?

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] 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. The guarantee does not require every aspect of a second-hand vehicle to be perfect. It only needs to be as good as a reasonable consumer would find acceptable.
[6] The day after Ms Cronin purchased the vehicle, she had it inspected by her brother Steven Barkla, who is a qualified automotive engineer. On 6 July 2017, about three weeks after purchasing the vehicle, Ms Cronin emailed Hutt Valley Wholesalers to relay a message from Mr Barkla that:

The harmonic balancer pulley[1] (main crankshaft driving all belts) is plainly cracked in the rubber area. It’s a danger to the engine if it breaks and is a WOF item as it runs the power steering belt too. The other issue was the engine breather pipe which is weeping oil. Not a major but wouldn’t expect it to be sold like that.

[7] Ms Cronin asked Hutt Valley Wholesalers if it had “any ideas on how we go about sorting these?”.
[8] After some delays, Hutt Valley Wholesalers asked Ms Cronin to supply an estimate for the cost of repairs required. Ms Cronin supplied an estimate from HDR Automotive Service Centre (HDR) to replace the front crank pulley, the drive belt and the cam cover. The estimated cost was $1,999.75 which included parts but not labour.
[9] HDR also serviced the vehicle. Its invoice dated 31 August 2017 noted the vehicle’s rear tyres needed to be replaced, as the centre wear was at its limit. The odometer when the vehicle was serviced in late August 2017 had a reading of 106,270 km, nearly 7,000 km higher than at the date of purchase. HDR also carried out a scan for fault codes. Before the hearing, the Tribunal asked Ms Cronin to obtain a report from HDR on whether the fault codes identified required further investigation and an estimate of the cost of any repairs needed. Ms Cronin did not provide any such report and she did not refer to these fault codes during the hearing.
[10] There was disagreement between the parties as to whether the tracking in the rubber area of the harmonic balancer pulley could lead to the vehicle failing its warrant of fitness. Ms Cronin asserted it was because of the role the pulley plays in the operation of the vehicle’s power steering. Hutt Valley Wholesalers pointed to the lack of evidence supporting Ms Cronin’s claims, in particular the lack of evidence that the cracked harmonic balancer pulley was likely to lead to the vehicle failing its warrant of fitness.
[11] Mr Barkla did not prepare a report or give evidence at the Tribunal hearing.
[12] The Tribunal’s Assessor, Mr Binding, advised that the rubber on a harmonic balancer pulley is prone to wearing out. However, Mr Binding did not consider there was enough evidence to say that the cracked pulley on Ms Cronin’s vehicle will result in the vehicle failing a warrant of fitness. The ultimate assessment of this is up to the individual warrant of fitness inspector, but Mr Binding said that it is generally only if the rubber is so cracked that the power steering will be affected that the vehicle is likely to fail its warrant of fitness check.
[13] In the present case, there was no evidence that the vehicle has failed (or would fail) a warrant of fitness. It was issued a new warrant of fitness on the date of purchase, 15 June 2017, which is due to expire on 15 June 2018. Nor was there any evidence that the power steering in the vehicle is or is likely to be affected. In any event, as at the date of hearing, Ms Cronin’s vehicle had travelled approximately 20,000 km since purchase. She advised that the odometer is currently reading approximately 120,000 km. When she purchased the vehicle the odometer reading was 99,400 km.
[14] As is apparent, Ms Cronin has continued to drive her vehicle without getting the harmonic balancer pulley replaced and there is no evidence of any adverse consequences of her doing so. This suggests the harmonic balancer pulley defect is no more than a potential maintenance issue that may require attention at some stage in the future. It is essentially a wear and tear item forming part of a reasonable vehicle owner’s ongoing responsibility to maintain the vehicle.
[15] In light of the (lack of) evidence, and Mr Binding’s advice, I do not consider Ms Cronin has demonstrated that the harmonic balancer pulley deterioration is of such a degree that a reasonable consumer would regard it as being unacceptable in terms of the definition of acceptable quality in s 7 of the Act. There is no evidence that the vehicle had any issue with its harmonic balancer pulley, at or soon after the date of purchase, that was likely to result in it failing a warrant of fitness. The extensive distance that Ms Cronin has driven the vehicle since purchase, without any evidence of adverse effects arising from the harmonic balancer pulley, does not indicate any concerns about safety or durability.
[16] In respect of the vehicle’s rear tyres, Hutt Valley Wholesalers advised the Tribunal that, when the vehicle was given its presale warrant of fitness, the rear tyres were recorded as having 2.5 mm and 3 mm of tread respectively. The legal minimum tread for warrant of fitness purposes is 1.5 mm.[2] The tyres clearly met minimum requirements and it appears that Ms Cronin drove the vehicle approximately 7,000 km before replacing them in September 2017 at a cost of $943. Tyres are a quintessentially wear and tear items, generally falling outside the guarantee of acceptable quality. Moreover, Ms Cronin drove the vehicle before purchasing it, so she could easily have inspected the tyres at this time and could have negotiated replacement of the rear tyres with Hutt Valley Wholesalers if she was concerned about their longevity. Instead, she purchased the vehicle with the tyres fitted on it. These tyres had passed their most recent warrant of fitness assessment. She has no basis now for complaining that the tyres only lasted for 7,000 km after she purchased the vehicle, before two of them required replacement.
[17] I conclude that, in respect of the tyres, the vehicle did not fail to comply with the guarantee of acceptable quality either.
[18] The other matters mentioned in Ms Cronin’s initial report to Hutt Valley Wholesalers, namely the engine breather pipe weeping oil, did not get mentioned again during the hearing. Nor was any estimate of the cost of any repairs that might be needed provided to the Tribunal. Ms Cronin provided a revised estimate from HDR for $1,343.50 for replacement of the harmonic balancer pulley. This revised quote included labour but excluded the cam cover repair, which was no longer considered necessary. As a result of my finding that the vehicle did not fail to comply with the guarantee of acceptable quality, this is a cost that Ms Cronin will have to bear herself if she wants to replace the pulley.

Issue two: Did the vehicle fail to comply with its description?

[19] Section 9(1) of the Act provides that "...where goods are supplied by description to a consumer, there is a guarantee that the goods correspond with the description". Ms Cronin’s claim under this heading was that one of the features of the vehicle as listed on Trade Me was that it had “full leather” seats. Ms Cronin submitted that this was not true. The seats are instead a combination of suede and leather. The real significance of Ms Cronin's concern is that, she argued, "full leather" seats in a Motorsport BMW implies that the seats are heated seats, which Ms Cronin says was one of her priorities.
[20] The first point that Hutt Valley Wholesalers made in response was that suede is, as defined in the dictionary, a form of leather.[3] I accept this submission and agree with Hutt Valley Wholesalers that its listing that the vehicle had "full leather" was not misleading, even though the upholstery is a combination of leather and suede.
[21] Hutt Valley Wholesalers also referred again to the fact that Ms Cronin took the vehicle for a test drive, during which it would have been obvious to her that the vehicle’s upholstery was a combination of leather and suede.
[22] Moreover, if having heated seats was one of Ms Cronin’s priorities, then she needed to find out before purchasing the vehicle whether indeed it had that feature. The vehicle’s Trade Me listing says nothing about heated seats. Nor was there any evidence that other presale material supplied by Hutt Valley Wholesalers erroneously described the vehicle as having heated seats.
[23] I conclude that the vehicle did not fail to correspond with its description.

Conclusion

[24] In light of my findings that the vehicle did not fail to comply with the guarantee of acceptable quality and did not fail to correspond with its description, Ms Cronin’s application must be dismissed.

J S McHerron
Adjudicator

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[1] A harmonic balancer pulley is a rubber and metal part that is attached to the front of the crankshaft and helps absorb vibrations. It also acts as a pulley to drive accessories such as the air conditioner.

[2] NZ Transport Agency, VIRM In-service certification (WoF and CoF), 10-1 Tyres and wheels, at 14: https://vehicleinspection.nzta.govt.nz/virms/in-service-wof-and-cof/general/tyres,-wheels-and-hubs/tyres-and-wheels

[3] See, for example, the entry for "suede" in the Oxford English Dictionary (Online ed, 2018, OUP): "Orig. in suede gloves, gloves made of undressed kid-skin; hence suede is used for the material and the colour of it. Now also applied to other kinds of leather finished to resemble undressed kid-skin; also an article, usually a shoe, made of suede."