Atkins v Boshier - Reference No. MVD 194/2019 [2019] NZMVDT 198 (19 September 2019)

Last Updated: 1 November 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 194/2019
[2019] NZMVDT 198

BETWEEN HARRY NGARIMU ATKINS AND TUSANI CINDY TIATIA ATKINS

Purchasers

AND BENJAMIN SIMON BOSHIER

Trader

HEARING at Tauranga on 23 August 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor
APPEARANCES

H N and T C T Atkins, Purchasers
B S Boshier, Trader

DATE OF DECISION 19 September 2019

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

Benjamin Boshier must pay Harry Atkins $476.60 no later than 3 October 2019.

___________________________________________________________________

REASONS

Introduction

[1] Harry Atkins and his daughter Tusani Atkins purchased a 2012 Ford Focus with 158,438 km on the odometer for $6,750 on 20 February 2019. Mr Atkins has had to have a number of repairs carried out to the vehicle, mainly to fix a wheel shudder and an engine shudder. In this application he is seeking an order that the trader, Benjamin Boshier, reimburse him for the cost of the repairs.
[2] The following issues arise for the Tribunal’s determination:

• (a) Did the vehicle fail to comply with the guarantee of acceptable quality?
• (b) If so, what remedy (if any) is Mr Atkins entitled to?

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.
[6] Before purchasing the vehicle, Mr Atkins found on a test drive that it was shaking at 80 – 100 kph. In addition, Mr Atkins was aware that the vehicle would require an oil change in another 1,600 km. As part of their agreement for the sale and purchase of the vehicle, the parties agreed that Mr Boshier would pay Mr Atkins $50 as a contribution towards any repairs that might be needed to fix the wheel shudder and a further $50 contribution to get the vehicle serviced.
[7] The vehicle obtained a new warrant of fitness on 20 February 2019, the purchase date. The vehicle passed the warrant of fitness with no matters requiring attention, apart from a note on the checksheet that the rear indicators were fading.
[8] On 1 March 2019, Mr Atkins took the vehicle for a wheel alignment at GMR Tyres at a cost of $50. Then, on 22 March 2019, Mr Atkins had the vehicle serviced by Oil Changers at a cost of $115.34.
[9] A further invoice dated 22 March 2019 indicates that Mr Atkins paid $20 to GMR Tyres for checking the wheel balance. Mr Atkins reported that the wheel alignment did not fix the wheel shaking.
[10] Mr Atkins’ next attempt to fix the wheel shaking was to have the car’s rotors skimmed. There was no separate invoice produced in relation to this work. Mr Atkins said that having the rotors skimmed did not fix the shuddering problem. He had the vehicle’s wheels aligned again on 23 April 2019 at a cost of $50, but this did not fix the problem either.
[11] Finally, Mr Atkins was advised that the right rear wheel bearing needed to be replaced and that the two rear brake rotors also needed to be replaced. These repairs were carried out by GMR Tyres on 21 May 2019 at a cost of $375.
[12] On 6 May 2019, Mr Atkins reported that he telephoned Mr Boshier about further repairs that were needed to the vehicle. In this phone call, Mr Atkins mentioned that the wheel bearing, the brake discs and rotors, the spark plugs and the rocker cover gasket all needed to be replaced. Mr Atkins says he also told Mr Boshier that the vehicle had “accident damage”. This alleged damage was further described in a written report from Chad Lake, the manager of GMR Tyres, who said that the left rear corner of the vehicle appeared to him to have been involved in an accident, the lower arm was creased, and the point at which it is attached to the car looked “pulled and incorrect”.
[13] Mr Atkins reported that, during this phone call, and every other time he spoke with Mr Boshier, Mr Boshier did not want to help Mr Atkins with the problems he was experiencing with the vehicle.
[14] Mr Boshier had a slightly different recollection of this conversation. He told the Tribunal that when Mr Atkins called him to discuss these problems on 6 May 2019, Mr Boshier told Mr Atkins that he needed more information and that he was reluctant to pay based on the lack of proof provided in relation to these problems.
[15] Following his conversation with Mr Boshier, Mr Atkins authorised repairs to the vehicle by the Ultimate Motor Group, a Ford service agent. Ultimate Motor Group checked for a “shudder in low gear”. Suspecting a misfire, it checked the spark plugs and found oil leaking into the plugholes and that the spark plugs were worn. Ultimate Motor Group replaced the rocker cover gasket and spark plugs. The cost of this work was $476.60, which was paid by Mr Atkins.

Tribunal’s assessment

[16] This is a relatively high mileage, older vehicle that was purchased for the relatively low price of $6,750. A reasonable consumer would expect such a vehicle to present various problems and maintenance requirements. However, Mr Atkins has experienced various issues that date back to the time at which he purchased the vehicle, or shortly afterwards. It is noteworthy that all of the matters for which he is claiming occurred within the first three months of his and his daughter’s ownership of the vehicle. Although none of the problems appear to have been particularly serious or expensive to fix, I conclude that a reasonable consumer would not have regarded this vehicle as being of acceptable quality in respect of its:

• (a) wheel shudder;
• (b) engine misfire due to faulty spark plugs; and
• (c) failed rocker cover gasket.

[17] I find that the vehicle failed to comply with the guarantee of acceptable quality in s 6 of the Act in respect of these matters.

Issue two: What remedy (if any) is Mr Atkins entitled to?

[18] The remedies available to a consumer where a vehicle fails to comply with a guarantee in the Act are set out in s 18, 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.

[19] As the High Court confirmed in Acquired Holdings Ltd v Turvey, a consumer must follow a particular sequence of steps in order to be eligible to obtain a remedy under s 18 of the Act.[1] The Court held that a purchaser must first follow the requirement in s 18(2)(a) to allow the supplier an opportunity to remedy a failure within a reasonable time.[2] The subsequent “self-help” remedy in s 18(2)(b), in which a consumer may have the failure remedied elsewhere and obtain from the supplier all reasonable costs in doing so, is exercisable only if the supplier refuses or fails to remedy the failure under s 18(2)(a).[3] It is important that a consumer should provide a supplier with an opportunity to repair or replace before commissioning repairs him or herself. This is to allow the supplier to “assess whether the goods have been subjected to unreasonable use, whether the defect has caused the problem and, in particular, to control the quality of the remedy, which would not necessarily be the case if repairs are carried out by an unauthorised repairer”.[4]
[20] In the present case it was disputed between the parties whether Mr Atkins had followed the approved sequence of steps so as to comply with the requirements of s 18. Mr Boshier submitted that Mr Atkins as purchaser did not comply with his obligations under the Act. In particular, Mr Boshier submitted that Mr Atkins did not contact him first with concerns or issues he may have had with the vehicle. Mr Boshier submitted that Mr Atkins did not give him the opportunity to assess and/or rectify any possible issues he may have had. Mr Boshier argued that Mr Atkins’ claim should be struck out without the need for a hearing because of his failure to comply with the requirements in the Act.
[21] At the hearing, it was accepted by both parties that Mr Atkins did contact Mr Boshier before going ahead and getting the work done by Ultimate Motor Group. Mr Boshier said he needed more information, but I was not satisfied that Mr Atkins had any basis to feel optimistic that Mr Boshier would pay for the vehicle to be repaired.
[22] Accordingly, in respect of the repairs carried out by Ultimate Motor Group, I conclude, by a narrow margin, that Mr Atkins has established that Mr Boshier refused to remedy the failures he identified. Accordingly, I consider that Mr Atkins is entitled to be reimbursed for the cost of those repairs, $476.60. I note that Mr Boshier did originally offer to reimburse Mr Atkins belatedly for this sum, however at the hearing this offer was withdrawn.
[23] In respect of the other repairs Mr Atkins had done on the vehicle, namely the various wheel alignments, wheel bearing replacement, and rear rotor replacement, I do not consider that he is entitled to recover the costs of those repairs. The reason I have declined Mr Atkins’ claim in respect of those repairs is that I consider that Mr Atkins had already accepted $50 in respect of the vehicle’s wheel shudder. Having accepted this sum from Mr Boshier in March 2019, it was not possible for Mr Atkins to claim more in order to supplement this amount. Parties are encouraged to settle their claims under the Act, and the Tribunal will respect settlement agreements reached.[5]
[24] Mr Atkins also claimed compensation in respect of his and his daughter’s lost time dealing with the vehicle’s problems. I do not propose to make any award of damages for lost time. The compensation requested was not relatable to any specific out of pocket expense that either Mr Atkins or his daughter had incurred, and the jurisdiction of the Tribunal to award costs was not triggered in this case because Mr Boshier appeared at the hearing and he had made a reasonable attempt to settle Mr Atkins’ claim.[6]
[25] One final matter that I wish to note is that the vehicle offer and sale agreement for the sale of this vehicle to Mr Atkins stated that the vehicle was sold on an “as is, where is” basis. I discussed with Mr Boshier that that provision is often interpreted as an attempt to contract out of a party’s obligations under the Act, which is unlawful.[7] I appreciate that Mr Boshier has now surrendered his trader’s licence. However, I note that this provision in the vehicle offer and sale agreement influenced me in finding that Mr Boshier refused to remedy the failures in Mr Atkins’ vehicle. If he decides to resume trading in motor vehicles, Mr Boshier will need to revise his contractual documentation.

Conclusion

[26] Benjamin Boshier must pay Harry Atkins $476.60 by 3 October 2019.

J S McHerron
Adjudicator

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[1] Acquired Holdings Ltd v Turvey [2007] NZHC 1251; (2008) 8 NZBLC 102,107 (HC).

[2] At [11].

[3] At [11].

[4] Roger Thornton (ed) Gault on Commercial Law (online looseleaf ed, Thomson Reuters) at CG 18.06.

[5] Consumer Guarantees Act 1993, s 43(7).

[6] Motor Vehicle Sales Act 2003, sch 1, cl 14.

[7] Consumer Guarantees Act 1993, s 43(4), Fair Trading Act 1986, s 13(i).