Stone aka Pederson v Buy Right Cars (2016) Ltd - Reference No. MVD 005/2019 [2019] NZMVDT 34 (22 February 2019)

Last Updated: 20 March 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 005/2019 [2019] NZMVDT 034 BETWEEN ZOE LYDIA STONE AKA ZOE LYDIA PEDERSON Purchaser AND BUY RIGHT CARS (2016) LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 18 February 2019

APPEARANCES

Z L Stone, Purchaser B Stone, Witness for the Purchaser

L Roslin, for the Trader

DATE OF DECISION 22 February 2019

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DECISION OF THE TRIBUNAL

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1. Zoe Stone’s application to reject the vehicle is dismissed.
   

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REASONS

Introduction

[1] On 7 August 2017, Zoe Stone[1] purchased a 2007 Mazda CX-7 for $13,980 from Buy Right Cars (2016) Ltd. The vehicle had an odometer reading of 78,370 km at the time of sale.
[2] In August 2018, the vehicle developed a timing chain fault, which caused extensive engine damage. Buy Right Cars performed repairs to the engine, but Mrs Stone says that those repairs did not rectify the vehicle’s faults, with the vehicle continuing to make a rattling noise from its engine. Mrs Stone has since had the vehicle assessed by Auckland Auto Collection Ltd, trading as John Andrew Mazda (John Andrew Mazda), which has identified other potential defects with the vehicle. She has now rejected the vehicle and seeks a refund of the purchase price.
[3] Buy Right Cars says that it rectified the initial fault that caused damage to the vehicle’s engine, and that any ongoing issues with the vehicle are consistent with its age and mileage. Buy Right Cars says that taking account of the length of Mrs Stone’s ownership, and the distance she has travelled in this time, it should not have liability for those ongoing faults.

The Issues

[4] Against this background, the issues requiring consideration are:

• (a) Does the vehicle have faults that breach the acceptable quality guarantee in s 6 of the Act?
• (b) Has Buy Right Cars failed to repair those faults within a reasonable time?
• (c) Are the faults a failure of a substantial character?
• (d) What remedy is Mrs Stone entitled to under 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 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 Stone’s subjective perspective.

The engine damage

[8] In early August 2018, Mrs Stone heard a rattling noise from the vehicle’s engine. Buy Right Cars assessed the vehicle and found that the vehicle had a fault with its timing chain, which had damaged the engine. Buy Right Cars says that it did not diagnose the full nature and extent of the engine damage, but it was satisfied that the damage was sufficient for the vehicle to require a new or rebuilt engine.
[9] Although a reasonable consumer purchasing a $13,980, 10-year-old vehicle that has travelled more than 78,000 km would have realistic expectations as to the durability of that vehicle, I am nonetheless satisfied that a reasonable consumer would not expect such a vehicle to require a significant engine repair within 12 months, during which time the vehicle had been driven approximately 8,350 km. Consequently, I am satisfied that the timing chain fault, which caused significant engine damage, means the vehicle has failed to comply with the acceptable quality guarantee in s 6 of the Act.

The mass airflow sensor

[10] In late November 2018, Mrs Stone again noticed a rattling noise from the vehicle’s engine. She returned the vehicle to Buy Right Cars, which after a period of diagnosis found that the vehicle had a faulty mass airflow sensor. Despite being advised by Mrs Stone not to perform any repairs, Buy Right Cars replaced the mass airflow sensor.
[11] Brook Stone, Mrs Stone’s husband, alleged that the rattling noise that he heard in late November 2018 was the same rattling noise as he heard in August 2018, which led to the engine being repaired. Mr Stone submitted that the vehicle must therefore still have the same fault, and that the engine repairs performed by Buy Right Cars had not rectified that earlier fault.
[12] Mr Haynes, the Tribunal’s Assessor, advises that any number of defects can cause a vehicle’s engine to rattle. Mr Haynes says that the rattling described by Mr Stone in August 2018 is consistent with the rattle that one would expect from a defective timing chain. Likewise, Mr Haynes advises that the rattling noise described by Mr Stone in November 2018 is consistent with pre-detonation, which occurs when too much fuel enters the combustion chamber, causing the fuel to detonate at the incorrect time.
[13] Mr Haynes advises that a fault with a mass airflow sensor can cause pre-detonation to occur, because the airflow sensor determines the amount of fuel that enters the combustion chamber, and a fault with that sensor can cause too much fuel to be injected into the combustion chamber. Mr Haynes advises that the rattling noise heard by Mr Stone was likely to be the sound of those combustion gases detonating at the incorrect time.
[14] Consequently, on the basis of the evidence presented and Mr Haynes’ advice, I am satisfied that the vehicle had a fault with its mass airflow sensor, which first became evident in late November 2018, and that the rattling noise heard by Mrs and Mr Stone in August 2018 is unrelated to the rattling noise then heard in November 2018. I consider that the evidence shows that the two noises were caused by different and unrelated faults.
[15] Although the vehicle had a fault with its mass airflow sensor, I am not satisfied that the fault breaches any of the guarantees in the Act. As noted above, a purchaser of a vehicle of this price, age and mileage should have realistic expectations as to its durability and should expect to perform repairs and maintenance during their ownership. In this case, the vehicle developed a fault with its mass airflow sensor more than 15 months after purchase, by which time Mrs Stone had driven nearly 10,000 km in the vehicle. Further, the required repair was relatively straightforward and inexpensive. Buy Right Cars paid $206.80 for a replacement mass airflow sensor, and Mr Haynes advises that it would have taken about one hour to install that component in the vehicle.
[16] Accordingly, on the basis of the relatively minor nature of the fault, the price, age and mileage of the vehicle at the time of sale and the length of Mrs Stone’s ownership and the distance travelled before the fault became apparent, I am satisfied that, in respect of the mass airflow sensor, the vehicle has been as durable as reasonable consumer would consider acceptable.

The potential defects identified by John Andrew Mazda

[17] Concerned that the vehicle had ongoing faults, Mrs Stone had the vehicle assessed by John Andrew Mazda in December 2018. John Andrew Mazda found no defects with the vehicle that caused its engine to rattle. However, John Andrew Mazda considered that the engine belt idler pulley and drive belt tensioner looked worn and recommended that Mrs Stone replace those components. It also recommended replacing the O2 sensor, which are considered could have caused the engine rattle noise complained of by Mrs Stone.
[18] Despite John Andrew Mazda’s recommendation to replace those components, I am not satisfied that Mrs Stone has produced sufficient evidence to prove that those components are defective and require replacement, or that they breach the acceptable quality guarantee. Although Mr Stone advised that he had been told by John Andrew Mazda not to drive the vehicle more than a short distance because of the worn components, the evidence presented just does not enable me to reach any conclusion as to the nature and extent of those potential problems, and whether they breach any of the Act’s guarantees.

Are the faults a failure of a substantial character?

[19] Under s 18(3) of the Act, Mrs Stone may reject the vehicle if it has a fault that amounts to a failure of a substantial character. A failure of a substantial character is defined in s 21 of the Act:

21. 21 Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

[20] Section 21(a) of the Act applies to this case. The question I must answer is whether the faults that this vehicle has, are such that a reasonable consumer, fully acquainted with the true nature and extent of the faults, would not have purchased the vehicle.
[21] Although the fault that caused the engine damage was a significant fault, and Buy Right Cars took an inordinate amount of time to perform that repair, Mrs Stone is not entitled to reject the vehicle because of that fault. As I discussed with Mrs and Mr Stone at the hearing, because they, albeit reluctantly, allowed Buy Right Cars to repair the engine damage caused by the timing chain fault, they cannot now reject the vehicle on the basis of that fault alone.
[22] Mrs and Mr Stone advised me that they have also rejected the vehicle because the ongoing faults have caused them to lose all confidence in the quality and reliability of the vehicle. They purchased the vehicle because they wanted a reliable large car for their growing family, and given the ongoing problems with this vehicle, they no longer have confidence in it.
[23] Although I can certainly understand Mrs and Mr Stone’s concerns given the significant engine damage that arose less than 12 months after purchase, and the more recent mass airflow sensor fault, I am not satisfied that they are entitled to reject the vehicle. Mrs and Mr Stone have already obtained a remedy for the engine damage caused by the timing chain fault, and because the mass airflow sensor fault was minor, unrelated to the earlier fault and does not breach any of the Act’s guarantees, I am not satisfied that this fault is sufficient to now cause a reasonable consumer to lose all confidence in the ongoing reliability of the vehicle.
[24] Accordingly, Mrs Stone’s application is dismissed.

DATED at AUCKLAND this 22nd day of February 2019

B.R. Carter
Adjudicator

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[1] Zoe Stone purchased this vehicle using her maiden name Zoe Pederson. Mrs Stone’s application was also made in her maiden name, but in this decision I refer to her as Zoe Stone or Mrs Stone.