Millar v Kazbar Holdings Pty Ltd t/a Car City Autos - Reference No. MVD 316/2019 [2019] NZMVDT 220 (14 October 2019)

Last Updated: 5 December 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 316/2019 [2019] NZMVDT 220 BETWEEN LEWIS KEVIN MILLAR Purchaser AND KAZBAR HOLDINGS PTY LTD T/A CAR CITY AUTOS Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 7 October 2019

APPEARANCES

L K Millar, Purchaser

S Vulinovich, for the Trader

DATE OF DECISION 14 October 2019

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DECISION OF THE TRIBUNAL

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1. Lewis Millar’s application is dismissed.

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REASONS

Introduction

[1] On 2 June 2019, Lewis Millar purchased a 1999 Nissan Pathfinder for $4,850 from Kazbar Holdings Pty Ltd, trading as Car City Autos (Car City Autos). The vehicle had an odometer reading of approximately 191,000 km at the time of sale.
[2] Shortly after purchasing the vehicle, Mr Millar discovered that the vehicle had leaking shock absorbers and broken rear trailing arm bushes, which caused the vehicle to fail a warrant of fitness inspection. Mr Millar alleges that the subsequent repairs performed by Car City Autos have not rectified the vehicle’s defects and he now seeks orders requiring Car City Autos to properly repair the vehicle’s faults.
[3] Car City Autos says that Mr Millar is entitled to no further remedy because the faults that caused the vehicle to fail the post-sale warrant of fitness inspection have all been rectified.

The Issues

[4] Against this background, the sole issue requiring consideration is whether the vehicle has any ongoing faults that breach the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the Act).

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

[5] 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.
[6] The expression “acceptable quality” is defined in s 7(1) 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] 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 Millar’s subjective perspective.
[8] After being told that the pre-purchase warrant of fitness inspection was performed by an Inspector who had since lost its license, on 1 August 2019, Mr Millar took the vehicle to Auto Super Shoppe Carzone (Carzone) in Stanmore Bay for a further warrant of fitness inspection to be performed. The vehicle failed that inspection because, amongst other things, Carzone considered that the vehicle had a leaking left front shock absorber and broken rear top and bottom trailing arm bushes. The vehicle was then returned to Car City Autos for those faults to be rectified. Mr Millar alleges that, despite repair attempts by Car City Autos, the leaking shock absorber and broken trailing arm bushes remain unrectified. Mr Millar says his wife took the vehicle back to Carzone, which considered that the faulty components would still fail a warrant of fitness inspection.
[9] Car City Autos says that the faults have been rectified. It says North Harbour Brakes & Steering Ltd performed the required suspension repairs on 14 August 2019 and provided an invoice from that company as proof. It also says that the vehicle then passed a warrant of fitness inspection performed by Rennojag VW, an MTA approved repairer, which it would not have done if the suspension faults remained. It provided the copy of the warrant of fitness checksheet for the inspection performed by Rennojag VW.
[10] As the applicant, Mr Millar must prove his claim on the balance of probabilities. In this case, I am not satisfied that he has done so. Although I am prepared to accept that the vehicle did have a leaking left front shock absorber and broken rear top and bottom trailing arm bushes at the time of sale, I am not satisfied that Mr Millar has proven that it is more likely than not that those faults remain.
[11] Instead, the evidence shows that Car City Autos has since paid to have those suspension faults repaired by North Harbour Brakes & Steering Ltd and that the vehicle then passed a warrant of fitness inspection, during which the condition of the left front shock absorber and rear top and bottom trailing arm bushes would have been assessed. Further, Mr Millar has provided colour photographs of the alleged faulty components. Mr Haynes, the Tribunal’s Assessor, advises that the photographs provided by Mr Millar are inconclusive as to the existence of any fault with those components.
[12] Accordingly, because the vehicle passed a warrant of fitness inspection after the suspension repairs were performed and because the evidence of any ongoing fault is inconclusive, Mr Millar’s application is dismissed.

DATED at AUCKLAND this 14th day of October 2019

B.R. Carter
Adjudicator