Van Dyk v Ellis-Utting Motors Ltd - Reference No. MVD 453/2018 [2019] NZMVDT 24 (11 February 2019)

Last Updated: 20 March 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 453/2018 [2019] NZMVDT 24 BETWEEN JALINE VAN DYK Purchaser AND ELLIS-UTTING MOTORS LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 29 January 2019

APPEARANCES

J van Dyk, Purchaser S Pietroiuski, Witness for the Purchaser

G Fortune, for the Trader

DATE OF DECISION 11 February 2019

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DECISION OF THE TRIBUNAL

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1. Jaline van Dyk’s application is dismissed.

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REASONS

Introduction

[1] On 29 June 2018, Jaline van Dyk purchased a 2012 Volvo V50 for $14,390 (including on-road costs) from Ellis-Utting Motors Ltd. Mrs van Dyk also purchased an Autosure extended warranty (the Autosure warranty) for $1,795. The vehicle had an odometer reading of 62,950 km at the time of sale.
[2] About one month after purchase, the vehicle developed a significant transmission fault and the transmission was replaced using the Autosure warranty. Mrs van Dyk alleges that the repairs performed have not rectified the vehicle’s transmission problems, and she has now rejected the vehicle and seeks a refund of the purchase price.
[3] Ellis-Utting Motors says that Mrs van Dyk is not entitled to reject the vehicle. It says that the vehicle has no ongoing transmission fault.

The Issues

[4] 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 Consumer Guarantees Act 1993 (the Act)?

Does the vehicle have a fault that breaches 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 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.

[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 Mrs van Dyk’s subjective perspective.
[8] Shortly after purchase, Mrs van Dyk became aware of a significant fault with the vehicle’s transmission, which was replaced by Kaspa Transmissions Glenfield Ltd (Kaspa Transmissions) in August 2018. Although the transmission was replaced, Mrs van Dyk alleges that the vehicle has an ongoing transmission fault. In particular, she alleges that there is an inconsistency in gear changes so that the vehicle jerks into first gear when accelerating from a standstill, the transmission jerks when driving slowly in first gear or slowing down and the vehicle is slow to change between third and fourth gears.
[9] Mrs van Dyk has obtained evidence to support her allegation that the vehicle has an ongoing transmission fault. Mrs van Dyk had the vehicle assessed by Birkenhead Tyre & Alignment Centre on 15 October 2018, which considered that the transmission was “very late shifting and rough changing down gear”. Mrs van Dyk also had the vehicle assessed by Anzac Automotive, which noted that the vehicle had higher than normal rpm when changing between third and fourth gears. Anzac Automotive also considered that the vehicle had “hesitation at pull off and selection” and that a software upgrade was required to remedy the vibration and hesitation.
[10] On the other hand, Ellis-Utting Motors presented evidence to suggest that the vehicle has no ongoing fault with its transmission. The vehicle was assessed by Archibald & Shorter, a Volvo Franchise based in Glenfield, on 6 November 2018. Archibald & Shorter considered that the vehicle’s transmission performed as it should. Further, Gavin Fortune, the Managing Director of Ellis-Utting Motors, advises that he has test driven the vehicle for a few days and has experienced no issues with its transmission. He says the vehicle’s performance is consistent with its direct shift gearbox (DSG). Mr Fortune also noted that the vehicle has been assessed by Kaspa Transmissions, the transmission specialist that replaced the original transmission in August 2018, and that Kaspa Transmissions considers that the vehicle has no ongoing fault with its transmission.
[11] After the hearing, Mr Haynes, the Tribunal’s Assessor, test drove the vehicle with the parties. Mr Haynes advises that he experienced the symptoms complained of by Mrs van Dyk, such as a slight jerking when the vehicle engaged first gear when accelerating from a standstill and a late shift from third to fourth gear while driving uphill.
[12] Mr Haynes advises that the symptoms are not evidence of a fault, but are instead consistent with the usual performance of a DSG gearbox. Mr Haynes advises that a DSG gearbox operates differently from a conventional automatic gearbox. A DSG gearbox uses an array of sensors to detect factors such as engine load, vehicle speed and engine rpm. The information from those sensors is then used by the transmission control module to select the appropriate gear to maximise engine performance and engine torque. Mr Haynes says that this can lead to symptoms such as high rpms between gear changes as the transmission control module seeks to maximise engine performance and torque before changing gear. Mr Haynes also says that the slight jerking that is evident when the vehicle engages first gear is a characteristic of a DSG gearbox.
[13] Mr Haynes also advises that the vehicle did not feel underpowered. This is relevant because Archibald & Shorter considered that, although it could find no transmission fault, the vehicle felt “very underpowered”. None of the other companies which inspected the vehicle raised concerns with it being underpowered and Mr Haynes advises that the vehicle’s power seemed normal.
[14] Having considered the conflicting evidence presented by the parties as to the existence of any fault with the vehicle, and taking account of Mr Haynes’ advice that the symptoms he experienced are consistent with the usual operation of a vehicle with a DSG gearbox, I am not satisfied that Mrs van Dyk has proven that the vehicle has any fault that breaches the acceptable quality guarantee in s 6 of the Act.
[15] Accordingly, Mrs van Dyk’s application is dismissed.

DATED at AUCKLAND this 11th day of February 2019

B.R. Carter
Adjudicator