Wootton v Euromarque Holdings Ltd - Reference No. MVD 059/2019 [2019] NZMVDT 100 (13 May 2019)

Last Updated: 20 June 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 059/2019
[2019] NZMVDT 100

BETWEEN MARK EDWARD WOOTTON

Purchaser

AND EUROMARQUE HOLDINGS LIMITED

Trader

HEARING at Christchurch on 12 April 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

R C Dixon – Assessor
APPEARANCES

M E Wootton, Purchaser
M A Pullan, Service Manager of Trader
J W Pawson, Maserati After Sales Manager for Trader
A R J Gamble, Senior Technician, Winger Motors Ltd (by AVL)

DATE OF DECISION 13 May 2019

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

1. Mark Wootton's rejection of his Maserati is upheld from 24 January 2019.
2. Euromarque Holdings Ltd (Euromarque) must pay Mr Wootton $60,000.

100. Mr Wootton's rights and obligations under the loan agreement dated 7 April 2018 between Mr Wootton and BMW Financial Services Ltd (Collateral Credit Agreement) are vested in Euromarque pursuant to s 89(2) of the Motor Vehicle Sales Act 2003 as from 24 January 2019.

4. Euromarque must refund Mr Wootton all of his payments of principal under the Collateral Credit Agreement prior to 24 January 2019 as well as all of his payments of interest and principal from 24 January 2019 to the date of this decision. The parties must cooperate to obtain any necessary information from BMW Financial Services Ltd to calculate these sums.
5. E The payments ordered in B and D above must be made no later than 27 May 2019, to a bank account nominated by Mr Wootton.
6. Once the payments in B and D have been made in full, Mr Wootton must make the vehicle available for Euromarque to collect promptly at its cost.
7. If there is any disagreement as to the calculation of the amounts payable as set out above, leave is granted to either party to refer that dispute to the Tribunal, with the unsuccessful party paying the Tribunal’s costs.
8. Mr Wootton has leave to request a telephone conference no later than 29 May 2019 if Euromarque does not comply with the above orders and the Tribunal will consider taking further steps.

___________________________________________________________________

REASONS

Introduction

[1] Mark Wootton’s 2014 Maserati GranTurismo has a worrying intermittent fault which, so far, has not been diagnosed or repaired. Since Mr Wootton purchased the vehicle in April 2018, on four or five occasions its brakes have locked up shortly after the vehicle takes off from a standstill. This has been accompanied by the appearance of several warnings on the dashboard display. (For convenience, in the rest of this decision, the fault will be referred to as "the sudden stopping fault".)
[2] This is Mr Wootton’s second application to the Tribunal in respect of the same car. The Tribunal did not uphold Mr Wootton’s first application to reject the car.[1] However, in its decision dated 16 November 2018, the Tribunal recorded its concern about the intermittent sudden stopping fault. The Tribunal said that if, after further diagnostic and repair work, Euromarque was still unable to detect or remedy the sudden stopping fault, then Mr Wootton would be on stronger ground to reject the vehicle.
[3] After the sudden stopping fault recurred in January 2019, Mr Wootton renewed his application to reject the vehicle on the basis that Euromarque had been given a further opportunity to repair it but had failed to do so within a reasonable time.
[4] Euromarque says it believes Mr Wootton when he says there is a fault with the vehicle. However, it wishes to bring the vehicle back from Auckland to Christchurch, and to keep it in Christchurch for enough time to properly diagnose the fault. Mr Wootton does not accept that Euromarque should be entitled to have a further opportunity to diagnose the sudden stopping fault. He submits that the only proper remedy is for the Tribunal to uphold his rejection of the vehicle.
[5] The issues for the Tribunal to determine are as follows:

• (a) Has Mr Wootton established a failure to comply with the guarantee of acceptable quality?
• (b) If so, what is the appropriate remedy (if any)?

Summary of findings in previous Tribunal decision

[6] Before addressing these issues, it is appropriate to briefly summarise my findings in the first Tribunal decision dated 16 November 2018.
[7] In his original application to the Tribunal, Mr Wootton raised several other alleged defects with the vehicle in addition to the sudden stopping fault. These defects were either not established by Mr Wootton on the evidence, or the defects have subsequently been fixed. Mr Wootton mentioned some of these other alleged defects in his second application as well. However, for the sake of simplicity, and without any disservice to Mr Wootton’s application or arguments, it is convenient to focus on the sudden stopping fault in resolving the present application. Accordingly, this decision will focus on that issue alone.
[8] In my 16 November 2018 decision, I described the sudden stopping fault as follows:

[20] Mr Wootton and his wife report that three or four times when taking off in the vehicle from an intersection, after driving about two to three metres, the electrical hand brake self-actuates and the ASR and ESC failure warnings appear on the dashboard.

[21] This is of great concern to Mr Wootton and his wife as, when it happens, they are unable to continue driving without restarting the vehicle. When the problem occurs in the middle of an intersection, or on a busy road, as it has done, they have concerns for their safety, particularly if other vehicles are unable to stop in time to accommodate the Maserati’s sudden stop.

[22] Winger Motors appears to have inspected the operation of the hand brake following the first time this problem was reported, but could not replicate it. On behalf of Euromarque, Mr Watkins did not deny that there may be a fault, but he explained that Euromarque and Winger have been unable to identify any fault codes relating to these incidents stored in the vehicle’s engine control unit (ECU). Mr Watkins submitted that the vehicle needs to go back to Winger Motors for further investigation. At the hearing, Mr Watkins said: “we would love to fix it”.

[23] The Tribunal’s Assessor, Mr Dixon, advised that the lack of fault codes associated with this issue is somewhat concerning. Mr Dixon noted that all the warning lights apparently relate to the same system which governs the vehicle’s electronic stability control. This is a system that automatically applies the vehicle’s brakes to help “steer the vehicle” when it detects a loss of steering control.

[24] Prior to the hearing, the Tribunal understood that Mr Wootton was scheduled to take the vehicle back to Winger Motors for further investigation in August 2018. The Tribunal requested Mr Wootton to provide more information on what is currently wrong with the vehicle and an estimate of the cost of any repairs, in the form of a report from Winger Motors. Contrary to this request, however, Mr Wootton did not obtain any further report on what might be wrong with the vehicle. This was connected with his desire to reject the vehicle and his unwillingness to allow any further repairs to be carried out. This places the Tribunal at somewhat of a disadvantage as there is a lack of evidence to indicate what precisely may be wrong with the vehicle.

[25] Mr Dixon and I agree that the best course of action is for Mr Wootton to allow further diagnostic work to be undertaken on the vehicle in the hope that it may elucidate what is wrong with it. Until that is done, it is not possible for the Tribunal to determine whether there is a failure to comply with the guarantee of acceptable quality.

[9] We were “particularly concerned about the indications that the vehicle is making sudden and unpredictable stops”.[2] We indicated that, at least potentially, this would appear to raise safety concerns. We concluded that this issue needed to be “urgently investigated and any necessary repairs carried out”.[3] Euromarque was on notice that it needed to do its best to find what was wrong and fix it. I indicated that:[4]

If, after this diagnostic and repair work is carried out, Euromarque is still unable to detect or remedy these faults, then Mr Wootton would be on stronger ground to obtain findings of failure to comply with the guarantee of acceptable quality and, if necessary, he may then invoke his right to reject the vehicle.

[10] Mr Dixon and I agreed with Mr Wootton that the vehicle had already been in the workshop for a worryingly long proportion of the time that Mr Wootton had owned it. We also agreed that it was concerning that, despite that length of time, Euromarque still did not seem to have pinpointed what may be causing the issues that are bedevilling the vehicle.[5]
[11] However, I decided that Euromarque (working with the Auckland Maserati agent Winger Motors), ought to have a further opportunity to diagnose and repair the vehicle.[6] Nevertheless, I emphasised that “safety concerns ... warrant prompt and diligent attention being given to determine the cause of, and fix, the unexpected stopping problem”.[7]
[12] We also considered that Euromarque’s efforts to date to sort out the vehicle’s problems “lacked sufficient urgency”.[8] At times, we observed, there was a “distinct lack of resolve to get the vehicle fixed in a way that allows Mr Wootton to enjoy the ‘experience’ that he has paid for".[9] Notwithstanding these concerns, I refrained from finding that Euromarque had failed to remedy the vehicle’s defects within a reasonable time.[10] I determined that Euromarque was entitled to have another chance to continue work on the vehicle through Winger Motors in order to properly diagnose and repair any faults. However, I observed that:[11]

The acid test will be, however, if Euromarque is given a further opportunity to try and solve the vehicle’s problems, whether it is ultimately able to do so in a way that is reassuring to Mr Wootton.

What happened after the Tribunal’s 16 November 2018 decision?

[13] After the Tribunal’s first decision was released to the parties on 16 November 2018, Mr Wootton took his vehicle back to Winger Motors on 5 December 2018. Winger Motors’ Senior Technician, Aaron Gamble, took charge of attempting to diagnose the problem. Mr Gamble attended the second Tribunal hearing on 12 April 2019 and gave useful evidence. He said that when he received the car he was told that the brakes had applied by themselves, so he initially scanned the vehicle and checked all the control modules for diagnostic fault codes (DTCs). No codes were logged in any of the control modules. This surprised Mr Gamble. Normally, he would expect to find a stored fault as a tell-tale sign that something was wrong. Mr Gamble then road tested the car several times, including taking it home a few times to try to replicate the complaint, but the car never faulted for him.
[14] Mr Gamble reported that as the vehicle had no stored or active fault codes recorded in the history of all relevant control modules. As the vehicle had not faulted while he had tested it, Mr Gamble was only able to attempt to pinpoint the cause of the problem from the pictures of the warning lights on the dashboard supplied by Mr Wootton and his description of when the vehicle fails.
[15] To recall the evidence given in both hearings, the warning lights that appear on the dashboard when the sudden stopping fault occurs are:

ESC failure go to dealer

ASR failure go to dealer

Parking brake fault go to dealer

[16] Mr Gamble described the vehicle’s dynamic braking system. When the electronic parking brake (EPB) switch is activated either the parking brake alone is applied, or alternatively all four hydraulic brake calipers are applied to the wheels, depending on the vehicle speed. If the vehicle is stationary or travelling slowly then only the parking brake will be applied. However, if the vehicle is travelling more than 15–18 kph, then all four hydraulic brakes will be applied, in effect, as an emergency braking system.
[17] Mr Gamble said that the EPB switch is a control module in its own right. If an internal failure of the switch occurred, it may result in the warnings experienced by Mr Wootton appearing on the dashboard display and request the EPB control module/node, which is located inside the boot space, underneath the boot floor lid, to activate the parking brake, without any DTC fault code appearing in the system. However, Mr Gamble thought that if any of the other main control modules relevant to the braking system (ABS or engine, suspension, gearbox, parking brake or instrument cluster) were at fault, this would be likely to leave a DTC code in one or more of those control modules.
[18] Based on this analysis, and discussions with a Maserati technical advisor in Australia, as well as with a Maserati engineer in Italy (neither of whom had ever experienced or been aware of a similar fault), Mr Gamble suggested replacing the EPB switch. Mr Wootton was skeptical about whether this would help but agreed to this repair being carried out. An invoice dated 21 March 2019 from Winger Motors records that the park brake module and switch were inspected, the "park brake switch" was replaced and the vehicle was road tested and returned to Mr Wootton with the advice that he should continue to monitor the vehicle. The total cost of this repair was recorded as $1,039.60. Although the invoice was made out to Mr Wootton, Mr Dixon and I understand that this repair cost was met by Euromarque.
[19] Mr Wootton said that the vehicle was returned to him after this repair on 14 January 2019. Acknowledging the Christmas break added to the time taken for the repair, Mr Wootton nevertheless wanted the Tribunal to note that this was a further extensive period during which he was unable to use his vehicle. However, Euromarque did make a loan vehicle available to Mr Wootton for the period his vehicle was at Winger Motors.
[20] Mr Gamble explained that the process of diagnosing the fault needed to follow a logical process, and that it was sensible to start with the park brake switch before going ahead and replacing the other control modules. Mr Gamble described the diagnostic work as a “process of elimination”, involving replacing the logical components (ie the control modules) one by one until the problem is solved. Mr Gamble did not think it would be appropriate (or economic) to replace all the control modules at once. However, he acknowledged Mr Wootton’s concern that with a potentially dangerous fault such as the sudden stopping issue, Mr Wootton should not have to be a “crash test dummy”, putting himself and his family at risk as part of the testing process for the vehicle.
[21] Mr Gamble said that the repair work itself was relatively quick, however he would have spent approximately six to eight hours testing the vehicle, both before and after the park brake switch was replaced in order to see if he could replicate the fault experienced by Mr Wootton. Unfortunately, he was unable to do so.

The sudden stopping problem recurs

[22] Approximately eight days after the vehicle was returned to him, on 22 January 2019, Mr Wootton was pulling out from a car park at his work onto Canaveral Drive when the vehicle suddenly stopped, as it had before. Mr Wootton had reversed the vehicle onto the road and the car locked up across the road on an angle with someone approaching in another vehicle from the other direction. Mr Wootton turned the car off and on again and drove forward out of harm's way.
[23] Mr Wootton said that this was now the fourth or fifth time this problem had occurred since he purchased the vehicle in April 2018. It had now got to the point where he did not wish to take the vehicle out anymore, and his wife was uncomfortable travelling in it. Mr Wootton is still using the vehicle but only occasionally to keep its battery charged.
[24] Mr Wootton produced photographs of the ESC failure and ASR failure warning messages on the dashboard that reappeared after the vehicle had suddenly stopped on 22 January 2019. Mr Wootton forwarded these photos in an email to Euromarque on 23 January 2019 in which he complained that, after not having his car for seven weeks while the problem was being diagnosed at Winger Motors, the sudden stopping fault recurred less than 10 days after the vehicle was returned to him. Mr Wootton said that Euromarque had now had the car on three occasions to try and fix this problem. Mr Wootton added that he considered that the car was unsafe to drive.
[25] The then Service Manager of Euromarque, Mr Craig Watkins, who is no longer working with the company, replied to Mr Wootton to say that he had sought direction from Euromarque’s Director, Angus Cockram, and that he would respond once he knew Mr Cockram's thoughts.
[26] Mr Wootton replied to Mr Watkins on 24 January 2019 to reject the car because of its significant ongoing electrical faults resulting in safety and reliability issues. Mr Wootton pointed out to Mr Watkins that, in its decision of 18 November 2018, the Tribunal made clear that if this problem was not resolved his case was likely to succeed.
[27] On 28 January 2019, having not heard further from Euromarque, Mr Wootton sent a further email to Mr Watkins expanding on his desire to reject the vehicle.
[28] Mr Watkins replied on 28 January 2019 to say that he had discussed the issue with Euromarque’s Maserati Master Technician, as well as with Mr Cockram and Mr Pawson, Euromarque’s Maserati Service Manager. Euromarque had concluded that the problem identified by Mr Wootton, namely random activation of the electronic park brake, is “very rare and unusual”. They questioned how this fault could be randomly occurring. Mr Watkins’ email said that:

Euromarque’s position is to continue with diagnoses and repair. We propose to fit a video recording device (at our cost) to record the random event happening. The video camera unit would need to be focused on the dash cluster and EPB switch. We would accept video footage you have for diagnoses and save any further delay. Upon receiving the video footage and if deemed necessary we would transport your Maserati to our Christchurch workshop to confirm the diagnoses and then repair the vehicle.

[29] Mr Wootton was not keen on Euromarque’s suggestion of installing a video camera in his vehicle, particularly if it would require him to continue to be, as he put it, a “crash test dummy”. Mr Wootton was very concerned for his and his wife’s safety in continuing to use the vehicle, especially when exiting from their own residential property, which is on a Tier One highway with fast-moving continuous traffic. Mr Wootton referred to a previous instance of the problem which left his car exposed across a lane of the road with several other cars having to brake suddenly to avoid colliding with him.
[30] Following Euromarque’s suggestion to install a video camera, Mr Wootton filed a new application to the Tribunal seeking to have his latest rejection of the vehicle upheld.
[31] Mr Wootton's fresh application to the Tribunal prompted Euromarque to offer to transport the vehicle down to Christchurch without the need for the video camera to be installed. I discussed the details of Euromarque’s proposal with Mr Pullan, at the hearing. He said that a late model suitable loan vehicle (not a Maserati) would be supplied to Mr Wootton while his Maserati was transported back to Christchurch to allow Euromarque’s technician to drive the vehicle for up to 2,000 km in a further attempt to replicate the fault, and then repair it. Mr Pullan emphasised that he "just wants to get the vehicle repaired".
[32] Mr Dixon and I asked Mr Gamble to indicate what he thought the appropriate next step would be for the diagnosis and repair of the vehicle. Mr Gamble said that the next logical component to replace would be the ABS control module, which he would do even if there were no fault codes recorded. Mr Gamble said that the suggestion to install a video camera in the vehicle was not his idea. He said that it could be helpful and would be a cheaper option than replacing the components. However, Mr Gamble said he could understand Mr Wootton’s preference not be the “crash test dummy” for the vehicle.
[33] I asked Mr Pullan whether Mr Wootton had been encouraged to bring the vehicle straight back to Winger Motors for further analysis following the sudden stopping event on 22 January 2019. He could not answer my question and said that the only person who would know would be Mr Watkins, who had departed the company.
[34] Mr Gamble agreed with my suggestion that it would have been a good idea for Mr Wootton to bring the car straight back to Winger Motors after the most recent sudden stopping event. I could not find any evidence in the emails produced by the parties that Euromarque encouraged Mr Wootton to bring the vehicle back to Winger Motors. Rather, Euromarque’s proposal prior to Mr Wootton bringing his second application to the Tribunal seems to have been limited to the installation of the video camera as described.
[35] Having set out the background of events in some detail, I now turn to the essential issues that the Tribunal needs to resolve.

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

[36] As set out at paras [5]‒[7] of the Tribunal’s 16 November 2018 decision, 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.
[37] "Acceptable quality" is defined in s 7 of the Consumer Guarantees Act 1993 (the Act) 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.

...

[38] At issue in the present case is a sudden stopping defect in which, on four or five occasions, Mr Wootton has experienced the vehicle suddenly stopping on its own when he is taking off in it from a standstill after driving two or three metres. According to Mr Wootton, this problem has occurred approximately every 2,000 km since he bought the car but it is not possible to predict exactly when it will occur next. Mr Wootton is particularly concerned that this problem occurs seemingly randomly and that it places his own and his wife’s life in danger, as well as endangering others on the roads. His real concern is if he launches the vehicle into traffic which is then unable to avoid him after the sudden stopping fault occurs, causing an accident.
[39] Even though the vehicle is not recording a fault code related to the sudden stopping fault, Mr Dixon and I do not doubt that this problem is occurring. In particular, Mr Dixon refers to the fault warnings appearing on the dashboard, photographs of which have been produced to the Tribunal by Mr Wootton. Mr Dixon does not consider that these fault warnings would be appearing unless the fault as described by Mr Wootton was actually occurring.
[40] We do not consider that a reasonable consumer would regard a vehicle that is randomly and suddenly stopping, in the way that Mr Wootton describes, to be sufficiently safe in terms of the guarantee of acceptable quality in s 6 of the Act.
[41] We therefore find that the vehicle fails to comply with the guarantee of acceptable quality.

What is the appropriate remedy (if any)?

[42] The remedies available in respect of a breach of the guarantee of acceptable quality are set out in s 18 of the Act, which provides:

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.

[43] In my previous decision, I found that Euromarque should have a further opportunity to diagnose and remedy the sudden stopping problem. Mr Dixon and I consider that Euromarque has now had an adequate opportunity to do this. In reaching this finding, we accept that this has been a difficult fault to diagnose. However, our earlier comments that Euromarque’s efforts to sort out the vehicle’s problems have lacked sufficient urgency still apply. We do not consider that Euromarque’s response in this case has been sufficiently prompt and diligent in light of the obvious safety concerns presented by the problem. While we have no concerns or criticisms of the diagnostic methods employed by Mr Gamble, we do not think that Euromarque has attended to the diagnosis of the vehicle with sufficient urgency to ensure Mr Wootton’s ongoing safety. For that reason, Mr Dixon and I accept Mr Wootton’s submission that Euromarque has not succeeded in remedying the failure of this vehicle to comply with the guarantee of acceptable quality within a reasonable time.
[44] We were prepared in our previous decision to give Euromarque a further opportunity to sort this problem out. We do not think that Euromarque has availed itself, as fully as would have been desirable, of the opportunity that the Tribunal has given it. We think it is now time for Euromarque to accept full responsibility for this vehicle and its problems and we do not think that Mr Wootton should have to wait any longer to achieve that.
[45] The solution now being offered by Euromarque is too little and too late. Euromarque's offer to retrieve the vehicle and diagnose and repair the fault in Christchurch will come at a significant cost to Mr Wootton. He will be further denied the opportunity to use the vehicle that he purchased, for a further considerable amount of time. Moreover, Euromarque’s proposal involves adding approximately 2,000 km to what is currently a low mileage, high value vehicle. We do not expect that a reasonable consumer should have to accept this as a necessary consequence of having a fault in the vehicle repaired.
[46] While we accept that Euromarque is entitled to have the vehicle back and to make its own efforts with the assistance of its Senior Master Technician to repair the vehicle, we do not accept that Mr Wootton should have to be without his vehicle for such a considerable period while this occurs.
[47] Accordingly, we conclude that Euromarque has not succeeded in repairing Mr Wootton’s vehicle within a reasonable time contrary to s 18(2)(b) of the Act (above). That means that Mr Wootton is now entitled to reject the vehicle under s 18(2)(b)(ii).
[48] As the Tribunal offered Euromarque a further opportunity to repair the vehicle, and encouraged Mr Wootton to reapply to the Tribunal if this did not take place, we do not consider that there could be any issue of Mr Wootton having lost his right of rejection for failing to exercise it within a reasonable time under s 20 of the Act. The date on which Mr Wootton rejected the vehicle was 24 January 2019, when he sent an email to Mr Watkins stating that he wanted to reject the car.
[49] As Mr Wootton has validly exercised his right to reject the vehicle, he is entitled to a refund of any money paid or other consideration provided in respect of the rejected vehicle.[12] Mr Wootton paid a deposit of $60,000 for the vehicle. He borrowed the remainder of the purchase price, $47,000, as recorded in a loan agreement dated 7 April 2018 between Mr Wootton and BMW Financial Services Ltd, which I am satisfied is a collateral credit agreement for the purposes of s 89(2) of the Motor Vehicle Sales Act 2003 (the Collateral Credit Agreement).
[50] Accordingly, I make the following orders:

• (a) Mr Wootton's rejection of his Maserati is upheld from 24 January 2019.
• (b) Euromarque must pay Mr Wootton $60,000 no later than 27 May 2019.
• (c) Mr Wootton's rights and obligations under the Collateral Credit are vested in Euromarque pursuant to s 89(2) of the Motor Vehicle Sales Act 2003 as from 24 January 2019.
• (d) Euromarque must refund Mr Wootton all of his payments of principal under the Collateral Credit Agreement prior to 24 January 2019 as well as all of his payments of interest and principal from 24 January 2019 to the date of this decision. The parties must cooperate to obtain any necessary information from BMW Financial Services Ltd to calculate these sums
• (e) The payments ordered in (d) above must be made no later than 27 May 2019, to a bank account nominated by Mr Wootton.
• (f) Once the payments in (b) and (d) have been made in full, Mr Wootton must make the vehicle available for Euromarque to collect promptly at its cost.
• (g) If there is any disagreement as to the calculation of the amounts payable as set out above, leave is granted to either party to refer that dispute to the Tribunal, with the unsuccessful party paying the Tribunal’s costs.
• (h) Mr Wootton has leave to request a telephone conference no later than 29 May 2019 if Euromarque does not comply with the above orders and the Tribunal will consider taking further steps.
  

J S McHerron
Adjudicator

---

[1] Wootton v Euromarque Holdings Ltd [2018] NZMVDT 267.

[2] At [32].

[3] At [32].

[4] At [34].

[5] At [41].

[6] At [43].

[7] At [47].

[8] At [50].

[9] At [50].

[10] At [52].

[11] At [52].

[12] Consumer Guarantees Act 1993, s 23(1)(a).