Fitzgibbon v Cathedral Car Company (1997) Limited - Reference No. MVD 222/2019 [2019] NZMVDT 190 (6 September 2019)

Last Updated: 1 November 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 222/2019
[2019] NZMVDT 190

BETWEEN PETER ROSS FITZGIBBON

Purchaser

AND CATHEDRAL CAR COMPANY (1997) LIMITED

Trader

HEARING at Christchurch on 15 August 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

R C Dixon – Assessor
APPEARANCES

P R Fitzgibbon, Purchaser
S Fitzgibbon, Purchaser’s Wife
Z P R Fitzgibbon, Purchaser’s son (by telephone)
R Luxon, Director of Trader

DATE OF DECISION 6 September 2019

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

1. Cathedral Car Company (1997) Ltd must, at its expense:

(i) collect Peter Fitzgibbon’s Volkswagen Passat from his house and fix the problems causing smoke to come from the engine and into the cabin;

(ii) fix the car’s electrical issue that is causing wires to melt;

(iii) obtain a new warrant of fitness for the vehicle and to complete any repairs necessary in order to get that warrant of fitness;

(iv) return the vehicle to Mr Fitzgibbon once it has completed these repairs.

2. The repairs in A above must be completed as promptly as possible and no later than 4 October 2019.

100. Either party may contact the case manager if there are difficulties in complying with these orders. The Tribunal will make further orders if necessary.

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REASONS

Introduction

[1] Peter Fitzgibbon is a caregiver for his wife, Sandy. He needed a reliable vehicle for both of them to use. He saved for two years and bought a 2005 Volkswagen Passat from Cathedral Car Company (1997) Ltd (Cathedral Cars) for $5,500.
[2] Unfortunately, Mr Fitzgibbon has had some problems with the vehicle. For some time now it has been parked on his lawn and he is currently unable to start it. Mr Fitzgibbon seeks a full refund of the purchase price.
[3] The following issues arise for the Tribunal to determine:

• (a) Did the vehicle fail to comply with the guarantee of acceptable quality?
• (b) What (if any) is the appropriate remedy?

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

[4] 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.
[5] “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.

[6] 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.
[7] Mr Fitzgibbon purchased the vehicle on 15 May 2018. He began to have problems with it in early July 2018, less than two months later. On 5 July 2018, while he and Mrs Fitzgibbon were travelling to Waimate, the vehicle felt like it did not have much power. When they arrived at Waimate, Mr Fitzgibbon noticed some smoke coming from under the bonnet. The following day, they took the vehicle to Oamaru and noticed smoke from the bonnet again. Mr and Mrs Fitzgibbon stopped for petrol and took advice from someone at the garage that the smoke could be coming from a faulty rocker cover gasket. However, no written report has been produced to the Tribunal with a diagnosis of the problem. They then took the vehicle back to Christchurch, through Waimate. On 7 July 2018, Mr Fitzgibbon had to stop in Ashburton to let the car cool down. The smoke was causing problems with Mrs Fitzgibbon’s breathing.
[8] On 9 August 2018, Mr Fitzgibbon reports that he started seeing smoke on the inside of the car. On 16 August 2018, just over two months since purchase, Mr Fitzgibbon noticed that some of the wiring in the engine bay was melting. He produced photos of the melted wiring.
[9] By 21 August 2018, Mr Fitzgibbon reports that the wiring had melted so much that the car would not start. Its doors do not lock or unlock. Its boot does not open anymore. And he is reluctant to close the petrol cap as it is difficult to open it again. Since then, Mr Fitzgibbon reports that the vehicle’s registration has been put on hold and it has sat on his front lawn for a year.
[10] Mr Fitzgibbon’s son, Zachary Fitzgibbon, gave evidence to the Tribunal by telephone. He said that he had used the car for a day to run some errands and noticed that it was slow and sluggish. More concerning to him was an “intense burning smell” from the car, like burning oil. He observed that oil was coming from somewhere in the engine and leaking onto the exhaust manifold.
[11] Prior to the hearing, the Tribunal asked Mr Fitzgibbon to provide all his invoices for repairs, a photo of the vehicle’s current odometer reading and a written diagnosis of the vehicle’s current faults, as well as a quote from an MTA-accredited repairer for any repairs that are needed.
[12] Mr Fitzgibbon provided a photograph of the odometer which shows 121,699 km. This indicates that Mr Fitzgibbon has travelled approximately 3,500 km in the vehicle since purchasing it. He confirmed that he had no quotes for repairs as he could not afford a tow truck to move the car. At the hearing, Mr Fitzgibbon said that he had taken the vehicle to Hopman Motors, which told him that the rocker cover gaskets needed to be replaced and gave him an oral quote of $580 per side. However no written diagnosis was provided or any written estimate and Hopman Motors did not charge Mr Fitzgibbon for this assessment.
[13] The Tribunal accepts Mr Fitzgibbon’s evidence that he has observed smoke from the vehicle, that there is evidence of some sort of short circuit in the electrical system causing the wires to melt, and that the vehicle is currently immobile and cannot be used.
[14] However, it is difficult for the Tribunal to reach any considered view about what is wrong with the vehicle and what needs to be repaired. Although it seems likely that the vehicle has a fault that arose shortly after purchase, it is not possible to be definite about what that fault actually is. Nevertheless, Mr Fitzgibbon has produced enough evidence to indicate that this vehicle failed to comply with the guarantee of acceptable quality.

Issue two: What (if any) is the appropriate remedy?

[15] The remedies available to a consumer where a vehicle has failed to comply with 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.

[16] The primary remedy under the Act where something goes wrong with a car is for the purchaser to take the car back to the trader and ask the trader to remedy the failure. In the present case it is clear that Mr Fitzgibbon has tried to get Cathedral Cars to help with the problems he has had with his vehicle. The evidence about Cathedral Cars’ response is inconclusive. I could not be certain about what exactly was discussed in the phone calls that occurred between Mr Fitzgibbon and Mr Jones. Nevertheless, I do not think that Cathedral Cars has been as helpful as it might have been towards Mr Fitzgibbon. He is clearly in a vulnerable position at the moment given his lack of financial resources to get the car fixed, or even to get it started or towed back to the trader for repair. Having said that, there was no evidence that Mr Fitzgibbon attempted to take the car back to Cathedral Cars for repairs when it was operating.
[17] Mr Fitzgibbon now wishes to reject the car and get a full refund. He is not entitled to that because there is no evidence that Mr Fitzgibbon has complied with his obligations under s 22 of the Act to notify Cathedral Cars of his decision to reject the vehicle and of the grounds for his rejection. Rather, Mr Fitzgibbon’s expressed wish to reject the vehicle appears to have come only in the context of his Tribunal application which was made almost a year after he purchased the vehicle.
[18] Even if Mr Fitzgibbon would otherwise have been entitled to reject the vehicle, there was insufficient evidence to establish that he clearly expressed his wish to reject the vehicle within a reasonable time after he first experienced problems with the car.[1]
[19] More significantly, the evidence was disputed about whether Cathedral Cars refused to assist Mr Fitzgibbon with repairs. Furthermore, it also appears that some damage has occurred to the vehicle which would preclude Mr Fitzgibbon from being able to reject the vehicle under s 20(1)(c) of the Act.
[20] I have much sympathy for Mr Fitzgibbon as it appears that something is wrong with his car and he has had difficulty getting Cathedral Cars to help him with that. However, for the above reasons I am not satisfied that Mr Fitzgibbon is entitled to reject the car and get a full refund.
[21] Mr Fitzgibbon is, however, still entitled to expect Cathedral Cars to assist him to get the car back on the road and running again.
[22] Mr Fitzgibbon’s evidence was that he contacted Cathedral Cars’ salesman Peter Jones on several occasions, but was told it was “not his problem”, that the warranty for the vehicle had expired, or that Mr Fitzgibbon would have to pay for a parking ticket before Cathedral Cars would give him help with any repairs.
[23] Mr Jones did not provide a statement or attend the Tribunal hearing to give evidence. The trader’s Director, Mr Luxon, disputed Mr Fitzgibbon’s evidence that Cathedral Cars had refused to assist him. Mr Luxon said that he had invited Mr Fitzgibbon to bring his car in to Cathedral Cars so he could see what the problem was. Mr Fitzgibbon said he was reluctant to take the vehicle back to Cathedral Cars because he felt his concerns would not be taken seriously. In any event, the vehicle now will not start and Mr Fitzgibbon does not have any money to have it towed back to the trader’s yard.
[24] The fact that none of the earlier discussions about the car were documented makes it difficult to be certain about what was said. The focus needs to shift to putting a plan in place to resolve this vehicle’s problems so that Mr and Mrs Fitzgibbon can have reliable transport as they originally intended.
[25] At the hearing, Mr Luxon said that Cathedral Cars is willing to collect the car and fix it at its expense. At first, Mr Luxon said that this would depend on whether the vehicle’s problems had been caused by Mr Fitzgibbon (for example, by jump starting the car). Mr Fitzgibbon denied that he had ever jump started the car, or that he had done anything else to cause the vehicle’s problems. Later, Mr Luxon agreed that Cathedral Cars would fix the car at its expense, regardless of whether the faults were attributable to Mr Fitzgibbon.
[26] I know that Mr and Mrs Fitzgibbon would dearly prefer to get rid of this car completely and get a full refund of the purchase price. However, I have concluded that they are not eligible for this remedy.
[27] Instead, I am going to order Cathedral Cars to collect the car from Mr Fitzgibbon’s house and to fix the problems causing smoke to come from the engine and into the cabin. It may be that this is being caused by faulty rocker cover gaskets or it may be some other problem. In addition, Cathedral Cars is to attend to the electrical issue that is causing wires to melt and to fix all current electrical problems in the vehicle. It must also obtain a new warrant of fitness and complete any repairs necessary in order to get that warrant of fitness.
[28] It is clear that there have been communication difficulties between the parties. The difficulties Mr Fitzgibbon has had with his vehicle have caused him a great deal of stress. Cathedral Cars should implement the orders of the Tribunal in a sensitive manner. Cathedral Cars should make all efforts to be sensitive to the stress that this episode is causing Mr and Mrs Fitzgibbon. It should make all reasonable efforts to contact him, either by email or telephone, to arrange a mutually satisfactory time to collect the vehicle and to carry out the repairs as promptly as possible. Mr Fitzgibbon is free to contact the Tribunal at any time if there are difficulties in ensuring Cathedral Cars complies with these orders. The Tribunal is prepared to make further orders if necessary.

J S McHerron
Adjudicator

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[1] Consumer Guarantees Act 1993, s 20(1)(a).