Wilkinson-Ewington v Stephen Hill Motors (Napier) Ltd - Reference No. MVD 113/2019 [2019] NZMVDT 167 (5 August 2019)

Last Updated: 17 September 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 113/2019 [2019] NZMVDT 167 BETWEEN LEWIS WILKINSON-EWINGTON Purchaser AND STEPHEN HILL MOTORS (NAPIER) LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S D Gregory, Assessor

HEARINGS at Hastings on 21 May 2019 and Auckland on 30 July 2019

APPEARANCES

L Wilkinson-Ewington, Purchaser

A Maney, for the Trader

DATE OF DECISION 5 August 2019

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DECISION OF THE TRIBUNAL

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1. Lewis Wilkinson-Ewington’s application is dismissed.

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REASONS

Introduction

[1] On 12 August 2017, Lewis Wilkinson-Ewington purchased a 2001 Holden Commodore VX SS for $10,990 from Stephen Hill Motors (Napier) Ltd (Stephen Hill Motors). The vehicle had an odometer reading of 216,908 km at the time of sale.
[2] Mr Wilkinson-Ewington has now rejected the vehicle, alleging that it has numerous faults that Stephen Hill Motors has failed to rectify. Stephen Hill Motors says that the vehicle does not have most of the faults alleged by Mr Wilkinson-Ewington, and that the faults the vehicle now has are consistent with its age and mileage and do not breach any of the guarantees in the Consumer Guarantees Act 1993 (the Act).

The issues

[3] Against this background, the sole issue requiring consideration in this decision is whether the vehicle has faults that breach the acceptable quality guarantee in s 6 of the Act?

Does the vehicle have faults that breach the acceptable quality guarantee?

[4] 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.
[5] 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.

[6] 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 Wilkinson-Ewington’s subjective perspective.

The wiper and headlight faults

[7] The vehicle had wiper and headlight faults shortly after purchase, which breached the acceptable quality guarantee in s 6 of the Act. Although the vehicle passed a warrant of fitness inspection on 14 August 2017 (when the operation of these functions would have been tested), I am satisfied that the vehicle then developed faults with its wipers and headlight, which a reasonable consumer would not expect to arise so shortly after purchase. Stephen Hill Motors has rectified those faults.

The alleged stereo, tyre and traction control faults

[8] Mr Wilkinson-Ewington also alleged that the vehicle had other faults shortly after purchase, including a malfunctioning stereo and traction control. Mr Wilkinson-Ewington also became concerned about the condition of the vehicle’s tyres.
[9] In respect of the alleged stereo fault, Mr Wilkinson-Ewington has provided insufficient evidence to confirm the existence of such a fault. Accordingly, I cannot be satisfied that the vehicle has a fault with its stereo that would breach the acceptable quality guarantee.
[10] I do accept that the vehicle’s tyres became worn shortly after purchase, with evidence of premature wear to the inner edges of the tyres. However, I am not satisfied that Mr Wilkinson has proven that the tyres were of unacceptable quality at the time of sale. The vehicle passed a warrant of fitness inspection on 14 August 2017, with the tyre tread being at least 4 mm on each tyre (which significantly exceeds the minimum requirement of 1.5 mm). If the tyres had unacceptable wear on their inner edges, as alleged by Mr Wilkinson-Ewington, they should have failed that warrant of fitness inspection. They did not, so I am not satisfied that Mr Wilkinson-Ewington has proven that the vehicle’s tyres were in unacceptable condition at the time of sale.
[11] Further, I am not satisfied that Mr Wilkinson-Ewington has proven that the tyres then lacked durability. In that regard, I accept Stephen Hill Motors’ submission that the worn tyres were most likely caused by the manner in which Mr Wilkinson-Ewington has used the vehicle. I accept the evidence from Anthony Maney, the Branch Manager at Stephen Hill Motors that, on 15 September 2017, the vehicle had rubber fragments under its rear guards consistent with the vehicle being driven in a manner that caused a sustained loss of traction. Mr Wilkinson-Ewington also gave evidence that he had driven the vehicle in a manner that caused the vehicle to lose traction, causing the rear of the vehicle to slide.
[12] Mr Gregory advises that such use can cause a vehicle’s tyres to wear prematurely on their inner edges. Accordingly, although the vehicle’s tyres have worn prematurely, applying s 7(4) of the Act, Mr Wilkinson-Ewington is not entitled to any remedy because I consider it likely that any premature wear to the tyres was caused by the vehicle being used in a manner inconsistent with the manner in which a reasonable consumer would use the vehicle.
[13] I am also not satisfied that Mr Wilkinson-Ewington has proven that the vehicle has any fault with its traction control system. Mr Wilkinson-Ewington says that the vehicle’s traction control light flickers and traction control engages when the vehicle is driven around corners or roundabouts under hard acceleration. Mr Gregory advises that these symptoms are not indicative of any fault but are instead consistent with the normal operation of the traction control in a Holden Commodore VX SS when one of the rear wheels loses traction.

The faults found by Vehicle Testing New Zealand (VTNZ) in March 2018

[14] Mr Wilkinson-Ewington had the vehicle inspected by VTNZ in March 2018, which found several faults, including:

• worn tyres;
• faulty window switches;
• moisture in a headlight;
• a faulty registration plate light;
• an oil leak from the bell housing;
• a small area of corrosion around the battery and tray area; and
• taillights and dashboard lights not working.

[15] On the basis of the evidence from Mr Wilkinson-Ewington, and the advice I have received from Mr Gregory, I am not satisfied that these faults breach the acceptable quality guarantee.
[16] Mr Gregory advises that each of the faults is minor, easily rectified and consistent with the normal wear and tear one would expect in a 16-year old V8 Holden Commodore.
[17] Further, the protections in the Act are not indefinite, and last for only as long as is reasonable, taking account of factors such as the price, age and mileage of the vehicle at the time of sale, the length of ownership before the faults became apparent and the distance travelled in that time.
[18] Mr Wilkinson-Ewington paid $10,990 for a 16-year-old vehicle that had travelled more than 215,000 km. These faults were then identified 7 months after purchase, by which time Mr Wilkinson-Ewington had driven more than 6,500 km in the vehicle. Taking account of the realistic expectations that a reasonable consumer should have as to the quality and durability of a vehicle of this price, age and mileage, I am not satisfied that the faults identified by VTNZ in March 2018 mean the vehicle has been of unacceptable quality.

Mr Wilkinson-Ewington’s application is dismissed

[19] The vehicle did have defects with its wipers and headlights that breached the acceptable quality guarantee, but Mr Wilkinson-Ewington is entitled to no further remedy for those faults, as they have been rectified by Stephen Hill Motors. Because the remaining faults do not breach the acceptable quality guarantee, Mr Wilkinson-Ewington is entitled to no remedy for those faults.
[20] Mr Wilkinson-Ewington’s application is therefore dismissed.

DATED at AUCKLAND this 5th day of August 2019

B.R. Carter
Adjudicator