van der Mespel v Trade In Clearance Ltd - Reference No. MVD 040/2019 [2019] NZMVDT 102 (14 May 2019)

Last Updated: 20 June 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 040/2019
[2019] NZMVDT 102

BETWEEN LIAM VAN DER MESPEL

Purchaser

AND TRADE IN CLEARANCE LIMITED

Trader

HEARING at Wellington on 8 April 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor
APPEARANCES

L van der Mespel, Purchaser
N Van der Velde, Manager of Trader

DATE OF DECISION 14 May 2019

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DECISION OF THE TRIBUNAL

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Liam van der Mespel's rejection of his vehicle is not upheld and his application is dismissed.

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REASONS

Introduction

[1] Liam van der Mespel has rejected his 2002 Ford Courier, which he purchased from Trade In Clearance Ltd on 12 May 2018. He says that it is unsafe, is not of acceptable quality and has not been durable.
[2] Mr van der Mespel seeks a refund of the purchase price, including having his loan commitments cleared or transferred and his trade-in vehicle returned. He also seeks damages for emotional stress, alternative transport costs and the costs of having his vehicle’s problems diagnosed.
[3] Trade In Clearance Ltd does not accept that Mr van der Mespel is entitled to reject the vehicle. It says that it attended to several minor faults at its expense. However, given the time that has passed since purchase, and the age, mileage and price of the vehicle, any more recent and ongoing concerns are Mr van der Mespel’s responsibility.
[4] The issue for the Tribunal’s determination is whether the vehicle complied with the guarantee of acceptable quality.

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

[5] 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.
[6] "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.

[7] 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.
[8] In correspondence with Mr van der Mespel, Trade In Clearance claimed that because the vehicle had been used for work purposes it was not covered under the Act. As explained in the hearing, however, this argument must fail. That is because there was no evidence of any written agreement to exclude the Act, as is required under s 43(2)(a).
[9] Accordingly, I will assess whether the vehicle failed to comply with the guarantee of acceptable quality.
[10] Mr van der Mespel’s complaints regarding the vehicle fell into two main categories: faults that have been fixed, either on his own initiative or at the expense of Trade In Clearance, and faults that remain outstanding.
[11] In the first category are faults Mr van der Mespel has experienced with:

• (a) the heater and air conditioning in July 2018, which were fixed at Trade In Clearance’s expense ($94.28) on 6 July 2018;
• (b) a split and cracked radiator, which was replaced at Trade In Clearance's expense ($350.75) on 21 August 2018; and
• (c) a number of other minor problems, most of which have now been fixed.

[12] In the second category, the major alleged outstanding problems with the vehicle include:

• (a) problems with gear shifting and the clutch;
• (b) problems with the turbo charger;
• (c) problems with the vehicle’s tyres; and
• (d) various other minor issues such as the right hand indicator not turning off, loose door locks and a large amount of “bog” in the car.

[13] I do not propose to dwell on any of the first category problems listed above that have been resolved. Accordingly, the rest of this decision will focus on the unresolved alleged defects in the second category.

Clutch and gear shifting issues

[14] Approximately seven months after Mr van der Mespel bought the vehicle, he mentioned to Trade In Clearance that the gearbox was not working satisfactorily. Mr van der Mespel first mentioned this problem to Trade In Clearance on 8 December 2018.
[15] Trade In Clearance arranged for Mr van der Mespel to take the vehicle to Midas, which changed the gearbox oil on 10 December 2018 at Trade In Clearance’s expense ($203.27). According to Mr van der Mespel, the gearbox oil change did not fix the problem. Mr van der Mespel described the problem as being a difficulty in putting the vehicle into first gear and reverse. Other gear shifts were acceptable. At times, he said, he had to use his whole body to put the vehicle into gear.
[16] Mr van der Mespel complained to Trade In Clearance again on 5 January 2019 about the gear box problem. He complained about a “crunchy synchro”. Trade In Clearance arranged for the vehicle to be booked in for assessment at Pit Stop. However, a misunderstanding about the public holiday for Wellington Anniversary meant that appointment did not proceed. Mr van der Mespel did not rebook the vehicle for assessment at Pit Stop until the Tribunal directed him to do so.
[17] In the meantime, Mr van der Mespel had the vehicle’s transmission assessed by Wellington Automotive Gearbox Specialists, which assessed his complaints of “graunch and hard shift” on 7 February 2019. It also checked the clutch operation and found that, although the clutch was not disengaging satisfactorily, the clutch hydraulics appeared to be “working okay”. Wellington Automotive Gearbox Specialists did not identify or describe any specific problems with the transmission, however it quoted Mr van der Mespel for a new clutch kit at a cost of $900 plus GST. It said the cost could be higher if there was found to be a "worn spigot on the box".
[18] On 14 March 2019, after the Tribunal's request for further information, Pit Stop assessed the vehicle for gearbox issues. It found that the “gear box feels notchy”. It also found the gear box oil was at the right level and in good condition. Pit Stop inspected the clutch and found that the clutch adjustment locking nut was loose. It adjusted the clutch pedal and tightened the nut. It reported that the “gear box feels as expected for age and kms”.

Turbo charger

[19] On 5 January 2019, nearly eight months after purchase, Mr van der Mespel complained to Trade In Clearance about a loud whine or scream, which he described as a “turbo death scream” coming from the turbo charger. Mr van der Mespel said in the hearing that it sounded like a siren following him while he was driving. Mr van der Mespel also complained that the turbo boost was not as smooth as when he first bought the vehicle. Wellington Automotive Gearbox Specialists also reported a sound that appeared to come from the turbo. It quoted Mr van der Mespel for a rebuilt exchange turbo, including fitting, at $1,500 plus GST, but said that the price could change depending if exhaust studs snap and need replacing.
[20] Pit Stop also reported on 14 March 2019 that the turbo was noisy.

Tyres/wheels

[21] Mr van der Mespel claimed that when the vehicle's wheels were replaced at the trader’s expense in June 2018, they were not properly aligned, which led to increased tyre wear.
[22] A few days before the hearing, Mr van der Mespel further alleged that the wheels and tyres required a low volume vehicle (LVV) certificate, which (by implication) Trade In Clearance should have obtained.
[23] Mr van der Mespel also alleged that the vehicle's rear tyres were not rated to support the weight and load of the vehicle.
[24] To support his allegation regarding the LVV certificate, Mr van der Mespel referred to Table 10-1-1 of the Vehicle Inspection Requirements Manual, which sets out the requirements for inspection of vehicles for in-service certification (warrants of fitness).
[25] Table 10-1-1 confirms that LVV certification is not required, provided that any tyre size changes do not result in tyres that have an outer circumference that is more than 5 per cent greater than OE (the original equipment on the vehicle). Mr van der Mespel alleged that the 20 inch wheel rims on his vehicle were much bigger than the 14 inch wheel rims originally installed on the vehicle, easily exceeding the 5 per cent threshold in the table.
[26] However, the flaw with Mr van der Mespel’s allegation is that Table 10-1-1 refers to tyre circumference, not wheel diameter or circumference. Mr van der Mespel produced no evidence of what size tyres were included as original equipment on the vehicle. It was therefore not possible for the Tribunal to calculate whether the outer circumference of tyres currently on the vehicle is more than 5 per cent greater than the original equipment. Accordingly, we were unable to conclude that the vehicle requires LVV certification.
[27] Nor did we consider that Mr van der Mespel produced sufficient evidence to establish that the rear tyres were not rated to support the weight and load of the vehicle.

Tribunal’s assessment

[28] Trade In Clearance emphasised that this vehicle was 16 years old when Mr van der Mespel purchased it. Its odometer reading at the date of purchase was 262,474 km. This is a high mileage and the vehicle is old. To be fair to Mr van der Mespel, however, the purchase price of $10,995 was not insubstantial.
[29] While the guarantee of acceptable quality means that Mr van der Mespel was entitled to a vehicle that was fit for purpose, of acceptable appearance, free from minor defects, safe and as durable as a reasonable consumer would find acceptable, the scope of the guarantee is not ever-lasting. What a reasonable consumer would find acceptable must be seen in light of the high mileage and advanced age of the vehicle.
[30] In this regard, I note the comment by Pit Stop in its report of 14 March 2019 to the effect that the gear box feels as expected for the vehicle's age and mileage. Moreover, it was unclear on the evidence exactly what was wrong with the transmission and how much it would cost to fix it. Nor was it clear on the evidence when the problem with the transmission first arose. However, the evidence was that Mr van der Mespel only complained to Trade In Clearance about the transmission for the first time on 8 December 2018, approximately seven months after he had purchased the vehicle.
[31] Mr Binding, the Tribunal's Assessor, thought that, reading between the lines, the clutch pressure plate springs may be worn but, again, this was a problem that only arose several months after purchase, after Mr van der Mespel had already travelled approximately 6,000 km in the vehicle.
[32] Mr Binding also thought that the evidence indicated that the bearings in the turbo charger were starting to fail. However, again, this was an issue that Mr van der Mespel only raised for the first time in early January 2019, nearly eight months after the vehicle’s purchase. Mr Binding also referred to the lack of evidence regarding maintenance on the vehicle and servicing, including while in Mr van der Mespel's ownership. It was certainly not possible to say with any certainty that the problems with the gearbox or turbocharger existed at or soon after purchase.
[33] Overall, in relation to the main items identified, if Mr van der Mespel had complained about a failure of the clutch and transmission or turbo charger in this vehicle within the first 2,000 to 3,000 km of his use of the vehicle then potentially he would have a remedy for lack of durability. We think seven months (even acknowledging Mr van der Mespel was unable to use the vehicle for some of that period) and approximately 6,000 km is too long after purchase, for what is now essentially a wear and tear matter on a very high mileage old ute.
[34] As already discussed, we do not consider that Mr van der Mespel has proved that the vehicle was sold to him without an LVV certificate that it needed to have.
[35] Furthermore, we think that any premature tyre wear associated with failure to align the wheels, is Mr van der Mespel's responsibility.
[36] It is not easy for a purchaser of a vehicle to successfully raise a complaint about tyre wear, after time and distance has elapsed since purchase. Generally speaking, tyre wear is a matter of ordinary maintenance in a vehicle, something for which a purchaser will bear responsibility, unless the purchaser can clearly attribute blame to the trader for wear on the tyres. Tyres are generally understood to be things that need to be replaced on a vehicle from time to time. Tyres need to be regularly monitored by the user of a vehicle to ensure the safety of occupants of the vehicle and other road users. There was evidence in the report from Wellington Automotive Gearbox Specialists to suggest that Mr Van Der Mespel was continuing to use the vehicle even though the "tyres [were] on cords". This invoice shows the odometer reading as 268,653 km, 6,179 km more than at the date of purchase. That suggests Mr van der Mespel had failed to monitor the condition of the tyres adequately, allowing them to wear to the point that the vehicle was likely no longer safe to be driven.
[37] In any event, we have concerns that the allegations regarding the tyres, in particular that an LVV certificate was needed, were made too late in the context of Mr van der Mespel's application.
[38] In respect of the other matters not specifically mentioned in this analysis, in particular the faulty indicator, door locks or excessive bog, we do not consider that Mr van der Mespel adequately explored those matters with Trade In Clearance, or at least we saw no evidence of that. Nor was there adequate evidence to prove the existence of these faults, what repairs were needed or the estimated cost of repairs.
[39] Accordingly, we do not accept that Mr van der Mespel has established any breach of the guarantee of acceptable quality.

Conclusion

[40] Standing back, our overall assessment is that the problems Mr van der Mespel is experiencing with this vehicle simply reflect its high mileage and advanced age. We do not consider that Trade In Clearance has acted unreasonably in terms of meeting its obligations under the Act. It has certainly addressed matters arising early in the time of Mr van der Mespel’s ownership of the vehicle and it has paid for the repairs that were needed then.
[41] After the amount of time that has now passed, we consider that any ongoing issues relating to the defects identified in this vehicle are Mr van der Mespel's responsibility.
[42] Accordingly, for the reasons outlined, Mr van der Mespel's rejection of his vehicle is not upheld and his claim is dismissed.

J S McHerron
Adjudicator