Smyth v Mosscar Services Ltd - Reference No. MVD 278/2019 [2019] NZMVDT 227 (30 October 2019)

Last Updated: 5 December 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 278/2019 [2019] NZMVDT 227 BETWEEN CAROLYNNE ANNE SMYTH Purchaser AND MOSSCAR SERVICES LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S D Gregory, Assessor

HEARING at Auckland on 22 October 2019

APPEARANCES

C A Smyth and N Smyth, Purchaser

M W Price and K Deane, for the Trader

DATE OF DECISION 30 October 2019

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DECISION OF THE TRIBUNAL

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1. Carolynne Smyth’s application is dismissed.

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REASONS

Introduction

[1] On 26 August 2013, Carolynne Smyth purchased a new SsangYong Korando for $30,000 plus on road costs. Ms Smyth says the vehicle has had transmission defects that mean it has not been of acceptable quality for the purposes of the Consumer Guarantees Act 1993 (the Act). She says that since June 2017, the vehicle’s transmission has been overhauled and then replaced at her expense and she seeks compensation for the costs she has incurred.
[2] Mosscar Services says that it should have no liability for the transmission faults. It says that the vehicle has been sufficiently durable for the purposes of the Act, and that any issues that arise from the repairs performed should be addressed with the company that performed those repairs.

The Issues

[3] Against this background, the sole issue requiring consideration is whether the vehicle has a fault that breaches the acceptable quality guarantee in s 6 of the Act.

Does the vehicle have a fault that breaches 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(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.

[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 Mrs Smyth’s subjective perspective.
[7] Although a reasonable consumer would quite rightly have high expectations as to the quality and durability of a new $30,000 vehicle, they should also understand that the protections in the Act are not indefinite and last for only as long as is reasonable in the circumstances of each case.
[8] In this case, the vehicle’s transmission first required repair in June 2017, nearly four years after purchase, by which time Mrs Smyth had travelled more than 153,000 km in the vehicle. Notwithstanding that those repairs cost $3,500, taking account of the factors in s 7(1)(f)–(j) of the Act, including the price of the vehicle, the length of time before the transmission fault arose and the distance Mrs Smyth travelled in that time (which was, on average, approximately 38,000 km per year), I am satisfied that the vehicle was as durable as a reasonable consumer would consider acceptable.
[9] Accordingly, I am not satisfied that the transmission fault that arose in June 2017 means that the vehicle was of unacceptable quality for the purposes of s 6 of the Act. Mrs Smyth’s claim against Mosscar Services in respect of that transmission fault is therefore dismissed.
[10] Mrs Smyth also raised concerns about the repairs performed on the transmission in June 2017 and May 2019. She says that the repair performed in June 2017 was substandard, and the transmission required replacement in May 2019, after less than 50,000 km of driving. She continues to have reservations about the quality of the transmission subsequently installed.
[11] Regardless of the quality of those repairs or the components used, the repairs were not performed by, or on behalf of, Mosscar Services. Consequently, Mrs Smyth has no claim against Mosscar Services in respect of those repairs and will need to bring a separate claim against the repairer in another jurisdiction (because this Tribunal does not have jurisdiction to hear claims against repairers) if she considers that those repairs or the components used were substandard.

DATED at AUCKLAND this 30th day of October 2019

B.R. Carter
Adjudicator