Tauwhare v JLD Enterprises Limited t/a The Trade In Post - Reference No. MVD 350/2019 [2019] NZMVDT 278 (13 December 2019)

Last Updated: 17 January 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 350/2019
[2019] NZMVDT 278

BETWEEN WILLIAM IHAIA TAUWHARE

Purchaser

AND JLD ENTERPRISES LIMITED T/A THE TRADE IN POST

Trader

HEARING at Christchurch on 26 November 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

R C Dixon – Assessor
APPEARANCES

W I Tauwhare, Purchaser
L A McGuiness, Partner of Purchaser
J K Moore, Manager of Trader
T Lang, Witness for Trader
J H Rouse, Director of Vantage Auto Diagnostics Ltd (by phone)

DATE OF DECISION 13 December 2019

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DECISION OF THE TRIBUNAL

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William Tauwhare’s rejection of his vehicle is not upheld and his application to the Tribunal is dismissed. Mr Tauwhare should attempt to resolve this dispute in association with JLD Enterprises Ltd and Vantage Auto Diagnostics in accordance with the offers to repair the vehicle that they have made.

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REASONS

Introduction

[1] William Tauwhare wishes to reject the 2005 BMW 320i Motorsport that he purchased from JLD Enterprises Ltd, trading as The Trade In Post, on 29 May 2018. Within a few weeks of the date of purchase, Mr Tauwhare’s vehicle began stalling intermittently after take-off. Eventually, this problem was traced to a faulty engine computer unit (known as a DME, or Digital Motor Electronics). This was replaced in November 2018. However, the stalling problem recurred in May 2019. Mr Tauwhare has recently been advised that his vehicle’s DME needs to be replaced again.
[2] The primary issue for the Tribunal to determine in the present case is whether the vehicle failed to comply with the guarantee of acceptable quality.

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.

...

(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] 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] Mr Tauwhare reported that about three weeks after purchasing the vehicle, it began to stall intermittently after take-off. Mr Tauwhare was concerned that this presented a safety issue, especially when it occurred at an intersection.
[7] In or around 21 June 2018, Mr Tauwhare took the vehicle back to JLD Enterprises, which referred it for assessment by Lichfield Motors. At this stage the vehicle was driven and scanned for faults but neither JLD Enterprises nor Lichfield Motors could find any fault with the vehicle.
[8] Just over two months later, on or around 5 September 2018, Lichfield Motors was asked to look at the vehicle again. This time, Mr Tauwhare had disconnected the vehicle’s battery in an attempt to remedy the problem himself and, in doing so, had inadvertently locked himself out of the vehicle. Lichfield Motors gained access to the vehicle’s boot and reconnected its battery. It scanned the vehicle for faults but found only flat battery codes were present. This was because a consequence of Mr Tauwhare’s disconnecting the battery was the erasure of any other fault codes arising due to the DME fault.
[9] On or around 25 October 2018, Mr Tauwhare contacted JLD Enterprises’ manager Jordan Moore and told him that the vehicle had faulted again. Mr Moore encouraged Mr Tauwhare to bring the vehicle straight to JLD Enterprises so that the fault could be diagnosed. Mr Tauwhare appears to have attempted to reject the vehicle at this point, but JLD Enterprises declined to give him a refund or take the vehicle back.
[10] On or around 14 November 2018, Vantage Auto Diagnostics scanned the vehicle and confirmed that the DME was failing. It replaced the DME and coded it to the vehicle. This work was completed at a cost of $2,300.30 which was mostly paid by Provident Insurance under Mr Tauwhare’s mechanical breakdown insurance (MBI) policy, apart from the $400 excess, which was paid by JLD Enterprises.
[11] Mr Tauwhare was unhappy that his MBI policy had been used to pay for this repair. It was unclear on the evidence who had authorised the MBI policy to be used for this purpose. Mr Moore denied that JLD Enterprises authorised the use of the MBI policy. I agree with Mr Tauwhare that if he was not consulted in respect of the use of his MBI policy for this purpose then that is unsatisfactory. Unfortunately, however, there is nothing much that the Tribunal can do about this. It is a matter between Mr Tauwhare, Provident Insurance (in respect of which the Tribunal has no jurisdiction as it is not a motor vehicle trader) and whoever authorised the claim under Mr Tauwhare’s insurance policy.
[12] The vehicle’s odometer recorded 115,294 km at the time that the DME was replaced. The latest current reading for the odometer is now 120,068 kms suggesting that Mr Tauwhare has driven the vehicle for approximately 5,000 kms since the repair work was completed.
[13] On or around 17 May 2019, the vehicle is reported to have faulted again allegedly with the same problem as before (stalling when taking off). Mr Tauwhare contacted JLD Enterprises on 17 May 2019. It appears that he again attempted to reject the vehicle at this time. Mr Moore responded by email to Mr Tauwhare on 17 May 2019 declining his request for a refund and encouraging Mr Tauwhare to take the vehicle to another workshop for it to be diagnosed, and then to inform JLD Enterprises of that workshop’s findings. It appears from Mr Moore’s email that Mr Tauwhare refused JLD Enterprises access to the vehicle again, preventing it from carrying out its own diagnosis of the current fault.
[14] Mr Tauwhare then took the vehicle to Christchurch BMW and Mini Garage. Its service estimate, dated 11 June 2019, records that it scanned the vehicle and found several missing messages from the DME. It then checked the connectors to the DME and found moisture in the DME box. It found that the DME had been encased in a plastic bag which had water inside. It opened the DME and found moisture and corrosion inside. The box was found to be physically intact, so Christchurch BMW and Mini Garage suspected water had entered the DME box via blocked drains.
[15] At the hearing, Mr Tauwhare produced an email from John Hefford, Provident Insurance’s national claims manager, indicating that the fact that the DME had been damaged by water meant that it was an event not covered by the MBI policy. Mr Hefford’s email stated that Provident Insurance had since learned that the original DME issue was also caused by water ingress and that “a blocked drain contained the water causing damage to the electronic unit”. Mr Hefford advised that had Provident Insurance known this at the time of the original repair, the claim would not have been covered.
[16] At the hearing, I telephoned Jamie Rouse, director of Vantage Auto Diagnostics. Mr Rouse was the technician who carried out the original DME replacement in November 2018. Mr Rouse advised that Vantage Auto Diagnostics’ job notes did not support Mr Hefford’s assertion that the original DME fault was caused by water ingress. Moreover, Mr Rouse noted that the original fault had been intermittent, which would have been unusual if the DME was wet.
[17] Nevertheless, Vantage Auto Diagnostics has offered to fit a replacement DME at its cost as a “gesture of good faith” on the basis that it was the last workshop to have been involved in carrying out repairs on the vehicle in this area. I emphasise that Vantage Auto Diagnostics does not concede that the original repair was in any way deficient. Mr Rouse noted that if he had failed to seal the DME correctly (by sealing the lower part of the DME into a plastic bag), then his experience tells him that the DME would have failed on the first rainy day, especially given that the vehicle was stored outside. Mr Rouse suggested that either the drain has become blocked subsequently or someone else has accessed the area and has failed to reseal the DME for some reason.
[18] Mr Rouse explained at the hearing that he always takes care to clear a drain near the wiper scuttle that, if blocked, can allow water to overflow into the area where the DME is located. If the DME is not properly sealed, then this can allow it to become flooded and damaged. Mr Rouse was confident that he had adequately protected the DME by sealing it and that he had cleared the proximate drain. However, this would not necessarily protect the DME from being flooded if the drain subsequently became blocked with debris. But Mr Rouse said that if the drain had blocked after the repair was carried out, then this would be a matter of ordinary vehicle maintenance, for which Vantage Auto Diagnostics should not be held responsible.
[19] As noted in the email that Mr Hefford sent to Mr Tauwhare, it appears that one way or another water has managed to get inside the plastic bag that Vantage Auto Diagnostics used to protect the DME, once again damaging the unit.

Tribunal’s assessment

[20] On the evidence produced to the Tribunal it is not possible to pinpoint exactly what was the cause of the failure of the vehicle’s DME the second time, in or around May 2019. Nor is it possible to identify whether the cause of the failure of the DME the second time was the same as the first failure. However, having regard to Mr Rouse’s evidence, it appears likely that the two faults were unrelated.
[21] First, the fact that the first DME fault was intermittent was identified by Mr Rouse as suggesting that it was not due to water ingress, contrary to the view expressed by Mr Hefford in his email to Mr Tauwhare.
[22] Second, the evidence does not necessarily establish that the second DME failure was attributable to a defective repair by Vantage Auto Diagnostics in November 2018. Even if it was, that would be a matter for Mr Tauwhare to take up with Vantage Auto Diagnostics and it is not a matter in respect of which the Tribunal would ordinarily have jurisdiction.
[23] Neither does the Tribunal have jurisdiction to determine Mr Tauwhare’s complaint in respect of the alleged inappropriate use of his Provident MBI policy. Furthermore, if (as appears to be the case) the second failure of the DME is associated with blocked drains in the vehicle, then the Tribunal’s Assessor Mr Dixon and I agree with JLD Enterprises’ submission that this is a matter of ordinary vehicle care and maintenance, for which Mr Tauwhare is himself responsible.
[24] Overall, however, it is difficult not to agree with the comment made by Vantage Auto Diagnostics in Mr Rouse’s letter indicating his surprise that this matter has reached the Tribunal, given that Vantage Auto Diagnostics has agreed with Provident Insurance to replace the vehicle’s DME at its expense. For that reason, and as Mr Tauwhare has failed to establish that the vehicle did not comply with the guarantee of acceptable quality, I encourage him to attempt to resolve this matter now in association with JLD Enterprises and Vantage Auto Diagnostics.
[25] On the basis of the offers made to Mr Tauwhare, which were not retracted at the hearing, it will be possible for him to get his vehicle repaired at no additional expense.

Conclusion

[26] For these reasons, Mr Tauwhare’s application to the Tribunal is dismissed.

J S McHerron
Adjudicator