Kazi v Winger Motors Ltd - Reference No. MVD 353/2019 [2019] NZMVDT 240 (12 November 2019)

Last Updated: 20 December 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 353/2019 [2019] NZMVDT 240 BETWEEN MOHAMMED KAZI Purchaser AND WINGER MOTORS LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S D Gregory, Assessor

HEARING at Auckland on 5 November 2019

APPEARANCES

M A Kazi, Purchaser

P Govind, for the Trader L Brown and M Roscoe, Witnesses for the Trader

DATE OF DECISION 12 November 2019

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DECISION OF THE TRIBUNAL

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1. Mohammed Kazi’s application is dismissed.

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REASONS

Introduction

[1] On 5 August 2019, Mohammed Kazi purchased a new Suzuki Vitara, registration number MHK89, for $32,970 from Winger Motors Ltd. Mr Kazi says that the vehicle has a pre-existing fault that causes the vehicle to vibrate and feel imbalanced. He wants Winger Motors to rectify that fault. Winger Motors says that it has tested the vehicle and found no fault. It says that the symptoms complained of by Mr Kazi are normal for a Suzuki Vitara.

The issue

[2] 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?

[3] 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.
[4] 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.

or to that extent.

[5] 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 Kazi’s subjective perspective.
[6] Mr Kazi says that the vehicle has a fault that affects the vehicle’s handling. He says that fault creates a vibration through the vehicle and makes the front left of the vehicle feel as if it is floating. He submitted that the vehicle feels imbalanced.
[7] As applicant, Mr Kazi has an obligation to prove that the vehicle has the alleged fault, on the balance of probabilities. That means that Mr Kazi must prove that it is more likely than not that the vehicle has an ongoing fault consistent with the symptoms he describes.
[8] Other than his oral testimony, Mr Kazi produced no evidence to prove the existence of any fault, as Mr Kazi has not had the vehicle assessed by an independent technician, as was directed by the Tribunal. Further, Winger Motors says that it has assessed the vehicle on at least two occasions and found no fault consistent with the symptoms described by Mr Kazi. It considers that the vehicle’s handling is normal, and consistent with two other Suzuki Vitaras that it has test driven with Mr Kazi to determine whether the vehicle does handle unusually.
[9] I also test drove the vehicle after the hearing with Mr Kazi and Paul Govind, the Dealer Principal of Winger Motors. During the test drive, Mr Kazi indicated that he could feel the symptoms he was complaining of. Although I could feel a slight vibration from the front of the vehicle, I am not satisfied that the symptoms I experienced are indicative of any defect with the vehicle. Consequently, in the absence of any obvious fault, and in light of Mr Kazi’s failure to present evidence to prove the existence of any fault, his application is dismissed.

DATED at AUCKLAND this 12th day of November 2019

B.R. Carter
Adjudicator