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Motor Vehicles Disputes Tribunal of New Zealand |
Last Updated: 15 May 2019
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IN THE MOTOR VEHICLE DISPUTES TRIBUNAL
BETWEEN DYLAN MARSHALL & EMILY DUCKETT
Purchaser
AND NEW ZEALAND CAR LTD
Trader
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MEMBERS OF TRIBUNAL
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B R Carter, Barrister – Adjudicator
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S D Gregory, Assessor
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HEARING at Auckland on 19 March 2019
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APPEARANCES
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D M Marshall, Purchaser
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G Sidorovski, for the Trader
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DATE OF DECISION 2 April 2019
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_________________________________________________________________
DECISION OF THE TRIBUNAL
_________________________________________________________________
_________________________________________________________________
REASONS
Introduction
[1] On 6 January 2018, Dylan Marshall and Emily Duckett purchased a 2006 Land Rover Range Rover Sport from New Zealand Car for $28,000. The vehicle had an odometer reading of 97,169 km at the time of purchase. Mr Marshall and Ms Duckett entered into a loan with Dane Matich Ltd, trading as MTF Wairau Rd (MTF), dated 6 January 2018 (the collateral credit agreement), to purchase the vehicle.
[2] The vehicle had a pre-existing fault with its coolant level sensor and quickly developed faults with its suspension and power steering system. Mr Marshall and Ms Duckett first filed an application to the Tribunal in March 2018, seeking to reject the vehicle. Mr Marshall and Ms Duckett claimed that the vehicle’s faults amounted to a failure of a substantial character and they would never have purchased the vehicle if they had known the true nature and extent of the faults that would arise so shortly after purchase. Mr Marshall and Ms Duckett also claimed that New Zealand Car failed to repair the faults within a reasonable time.
[3] Following a hearing on 16 April 2018, the Tribunal dismissed this application to reject the vehicle and ordered that New Zealand Car pay $150 to Ms Duckett. In reaching this conclusion, the Tribunal found that the proven faults did not amount to a failure of a substantial character for the purposes of s 21(a) and (d) of the Consumer Guarantees Act 1993 (the Act) and that New Zealand Car had repaired those identified faults within a reasonable time.
[4] The Tribunal did, however, note that its decision to dismiss the application to reject the vehicle was a close call, and if any further faults of significance were to arise with the vehicle in the near future, any future application to the Tribunal by Mr Marshall and Ms Duckett may result in a different outcome.
[5] Mr Marshall and Ms Duckett then filed a further application, alleging that the vehicle had a further fault with its suspension. Following a hearing on 29 October 2018, the Tribunal again dismissed Ms Duckett’s application to reject the vehicle and ordered that New Zealand Car must rectify the undiagnosed fault with the vehicle’s suspension within 15 working days of the date of the Tribunal’s decision. In dismissing the application to reject the vehicle, I held that, because Mr Marshall and Ms Duckett had not diagnosed the cause of the suspension fault, I was not satisfied that the further suspension fault was sufficient to conclude that the vehicle’s faults were a failure of a substantial character.
[6] Mr Marshall and Ms Duckett have now applied, for the third time, to reject the vehicle, alleging that the vehicle has an ongoing suspension fault and that New Zealand Car has failed to rectify that fault. New Zealand Car says that it has rectified the previous faults with the vehicle and that, although another problem with the suspension may have arisen, Mr Marshall and Ms Duckett should not be entitled to reject the vehicle.
The Issues
[7] Against this background, the issues requiring consideration are:
- (a) Does the vehicle have a fault that breaches the acceptable quality guarantee in s 6 of the Act?
- (b) If so, has New Zealand Car failed to repair that fault within a reasonable time?
- (c) Is the fault a failure of a substantial character?
- (d) What remedy, if any, is Mr Marshall and Ms Duckett entitled to under the Act?
Does the vehicle have a fault that breaches the acceptable quality guarantee?
[8] 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.
[9] 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.
[10] 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 Marshall and Ms Duckett’s subjective perspective.
[11] The information presented by Mr Marshall and Ms Duckett shows that the vehicle has a fault with its Active Cornering Enhancement (ACE) system and a fault that affects the operation of its front right airbag.
The ACE system fault
[12] Following the second Tribunal hearing between the parties in late October 2018, New Zealand Car had the vehicle’s suspension assessed by Stag Spares & Services Ltd (Stag). New Zealand Car has provided a letter, dated 17 March 2019, from Morris Turner, the Managing Director at Stag, which helpfully sets out the diagnosis and repairs that Stag performed on the vehicle in November 2018. New Zealand Car also provided an invoice from Stag, dated 14 November 2018, confirming the diagnosis and repairs performed.
[13] In respect of the vehicle’s suspension, Stag identified a suspension fault relating to the vehicle’s ACE system. Mr Gregory, the Tribunal’s Assessor, advises that the ACE system is part of the vehicle’s suspension and controls the vehicle’s front and rear sway bars, which help to stabilise the vehicle while cornering.
[14] To rectify the fault with the ACE system, Stag drained fluid from the ACE reservoir, checked the gauze at the bottom of the reservoir for foreign matter and removed and cleaned the valve body filter. Stag considered that this work rectified the identified issue with the ACE system.
[15] The vehicle was then returned to Mr Marshall and Ms Duckett in mid to late November 2018. Mr Marshall alleges that the vehicle’s suspension fault returned almost immediately. He says that his wife, Ms Duckett, was driving the vehicle shortly after it was returned, and when Ms Duckett came to a stop at an intersection, the front left of the vehicle dipped markedly. I did not hear evidence from Ms Duckett, so accordingly I can give little weight to Mr Marshall’s evidence of what Ms Duckett experienced.
[16] However, Mr Marshall presented other evidence to prove the existence of an ongoing suspension fault. Mr Marshall provided six time and date stamped photographs of error messages displayed on the vehicle’s dashboard. Each of those messages says that the vehicle has a suspension fault. Five of the messages advise the driver to stop safely and stop the engine. The other advises that the vehicle leans when cornering.
[17] Mr Marshall and Ms Duckett then had the vehicle assessed by Duncan & Ebbett in Hamilton. Duncan & Ebbett test drove the vehicle, during which the suspension fault warning message illuminated on the dashboard, advising the driver to stop safely and stop the engine. Duncan & Ebbett performed a diagnostic scan and found fault codes relating to the vehicle’s ACE system. It suggested removing the ACE valve block and cleaning and replacing the fluid and then retesting, but it advised Mr Marshall and Ms Duckett that the vehicle may require a new ACE valve block at a cost exceeding $5,000 including GST.
[18] The evidence provided by Mr Marshall satisfies me that the vehicle has an ongoing fault with its ACE system. I am also satisfied that the current fault is the same fault diagnosed by Stag in November 2018. Stag identified a fault with the ACE system and performed repairs in an attempt to rectify that fault. Those repairs were unsuccessful and the same fault was then found by Duncan & Ebbett.
[19] I also consider it likely that the ACE system fault has existed for some time and may well have existed when Mr Marshall and Ms Duckett purchased the vehicle in early January 2018. In that regard, although the focus of the earlier Tribunal decisions was on the vehicle’s airbag suspension because there was an obvious fault with the airbag suspension in early 2018, evidence presented in the first two hearings also pointed to the vehicle having an intermittent, difficult to detect fault with its ACE system. That evidence included:
- (a) an invoice from Duncan & Ebbett, dated 17 January 2018. Mr Marshall and Ms Duckett had taken the vehicle to Duncan & Ebbett complaining of a suspension warning light on the dashboard. Duncan & Ebbett performed a diagnostic test and found fault codes that it considered related to the vehicles “anti-roll bar” system. Mr Gregory advises that the anti-roll bar system is the ACE system;
- (b) an Autologic Quick Test Report, dated 20 July 2018, from Hillcrest Autos in Hamilton, which identifies two fault codes relating to the vehicle’s active role control module, which Mr Gregory advises is the vehicle’s ACE system. Relevantly, the fault code for one of those identified faults was C1119-09, which was the same fault code relating to the ACE system found by Stag on 14 November 2018; and
- (c) a diagnostic scan performed by Duncan & Ebbett on 5 October 2018, which found the same C1119-09 fault code as identified by Hillcrest Autos and Stag.
[20] The evidence presented by Mr Marshall, Ms Duckett and New Zealand Car, combined with the advice from Mr Gregory, leads me to conclude that the vehicle has a fault with its ACE system that was likely to have been present at the time of sale, or if not, shortly thereafter. Although a reasonable purchaser of a 12-year-old Range Rover Sport that has travelled nearly 100,000 km at the time of purchase should understand that such vehicles can be expensive to maintain and faults are likely to develop from time to time, I consider that a reasonable consumer would not expect such a fault to be present in a vehicle of this price, age and mileage. Accordingly, I am satisfied that the ACE system fault breaches the acceptable quality guarantee in s 6 of the Act.
The ride level control fault
[21] Mr Marshall and Ms Duckett also complain of a fault that causes the vehicle’s airbag suspension to intermittently dip.
[22] Stag found fault codes relating to the vehicle’s ride level control module when it assessed the vehicle in November 2018. Stag appears to consider that the fault codes relating to the ride level control systems may well have been caused by low battery voltage, low fuel level or a flat battery, rather than any underlying or inherent defect with the vehicle. In respect of the identified fault code relating to the ride level control module, Mr Gregory notes that the actual cause of the fault remains undiagnosed but agrees that such fault codes could be generated by low battery voltage or a flat battery.
[23] Duncan & Ebbett also found multiple fault codes relating to the vehicle’s battery voltage when it assessed the vehicle in January 2019. Duncan & Ebbett checked the operation of the vehicle’s airbag suspension and found no leaks and considered that the compressor was working correctly. Instead, it seems that Duncan & Ebbett also considers that the problems Mr Marshall and Ms Duckett have been experiencing with the right front suspension airbag may be related to its battery. I refer to an email from Mr Marshall, dated 11 March 2019, in which he advises that Duncan & Ebbett considers that the issues Mr Marshall and Ms Duckett have had with the ride level of the vehicle, including what Mr Marshall calls the “random dropping in the front right suspension”, may well be due to the condition of the vehicle’s battery.
[24] Accordingly, I consider that the evidence shows that it is likely that the problems that Mr Marshall and Ms Duckett have experienced with the vehicle’s ride level control systems are not due to any inherent defect with the vehicle but were instead caused by the condition of the vehicle’s battery. Because the fault may well be attributable to the condition of the battery, which is a consumable item that a purchaser should expect to replace from time to time, I am not satisfied Mr Marshall and Ms Duckett have proven that this defect breaches any of the Act’s guarantees.
Did New Zealand Car fail to rectify the suspension fault within a reasonable time?
[25] Mr Marshall and Ms Duckett claim that they are entitled to reject the vehicle because New Zealand Car has failed to repair the vehicle’s suspension faults within a reasonable time.
[26] Section 18(2)(b)(ii) of the Act sets out the rules for rejecting a vehicle in such circumstances. Section 18 provides:
- Options against suppliers where goods do not comply with guarantees
(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.
(2) Where the failure can be remedied, the consumer may—
(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:
(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—
(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or
(ii) subject to section 20, reject the goods in accordance with section 22.
(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—
(a) subject to section 20, reject the goods in accordance with section 22; or
(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.
(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.
[27] As set out above, I am satisfied that the vehicle has a fault with its ACE system that breaches the acceptable quality guarantee in s 6 of the Act. This fault has existed throughout Mr Marshall and Ms Duckett’s ownership. I am also satisfied that New Zealand Car has been required to rectify this fault. In my decision of 6 November 2018, I required New Zealand Car to rectify the fault with the vehicle’s suspension (which ultimately proved to be the ACE system fault) within 15 working days of that date. Despite performing repairs, it did not rectify that fault.
[28] Despite this background, I am not satisfied that New Zealand Car has failed to rectify the fault with the ACE system within a reasonable time.
[29] The first real opportunity that New Zealand Car was given to rectify the ACE system fault was in November 2018. The existence of a defect with the ACE system was not conclusively diagnosed until November 2018, when Stag assessed the vehicle. The earlier focus of Mr Marshall and Ms Duckett’s claims against New Zealand Car related to the vehicle’s airbag suspension and the vehicle’s ride height, and New Zealand Car’s earlier efforts were aimed at rectifying those faults.
[30] I consider that its attempted repair at that time, although unsuccessful, was nonetheless a reasonable first attempt. Mr Gregory advises that the repairs to the ACE system performed by Stag in November 2018 were a logical first step in attempting to rectify the fault. Mr Gregory advises that the rectification of such faults can often involve a process of first trying to perform an inexpensive repair, such as cleaning the affected components to determine whether the fault can be rectified in that manner, followed by the expensive option of repairing or replacing the faulty components if the initial attempted repair does not work.
[31] Because this was New Zealand Car’s first attempt at rectifying the ACE system fault, which was a reasonable one, I am not satisfied that New Zealand Car has failed to rectify the ACE system fault within a reasonable time.
Is the ACE system fault a failure of a substantial character?
[32] A failure of a substantial character is defined in s 21 of the Act:
- 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.
[33] Section 21(a) of the Act applies to this case. The question I must answer is whether the fault that this vehicle has is such that a reasonable consumer, fully acquainted with the true nature and extent of the fault, would not have purchased the vehicle.
[34] The fault with the ACE system is not a failure of a substantial character in its own right. As set out in previous decisions involving the parties, I consider that a reasonable purchaser of a 12-year-old Range Rover Sport, that had travelled a little over 97,000 km, would understand that such vehicles can develop faults from time to time due to the vehicle’s age and mileage. I am not satisfied that the fault with the ACE system is the type of fault that would cause a reasonable consumer to refuse to purchase such a vehicle.
[35] In reaching this conclusion, I note that the fault may well be expensive to rectify, with the estimate provided by Duncan & Ebbett suggesting a cost of more than $5,000 for the required repairs. The cost of required repairs, although relevant to the consideration of whether a fault amounts to a failure of substantial character, is not determinative. That is particularly the case with vehicles such as a 12-year-old Range Rover Sport, which will often require expensive repairs for relatively minor faults.
Are the vehicle’s faults, when considered together, a failure of a substantial character?
[36] Mr Marshall and Ms Duckett also say that they should be entitled to reject the vehicle because of the accumulation of faults with the vehicle.
[37] In Cooper v Ashley & Johnson Motors Ltd, the District Court found that a purchaser may reject a vehicle where there had been an accumulation of minor defects, which in themselves could not be described as substantial.[2] The Court noted that a point will eventually be reached where the purchaser could “say convincingly that he or she had no “confidence in the reliability of the vehicle”.[3]
[38] The Tribunal, in its decision of 1 May 2018,[4] noted that its finding that the vehicle’s accumulated faults did not amount to a failure of a substantial character was a “close call” and that if any further faults of significance were to arise with this vehicle in the near future, any future application to the Tribunal by Ms Duckett may result in a different outcome.
[39] In its second decision, dated 6 November 2018,[5] the Tribunal declined Mr Marshall and Ms Duckett’s application to reject the vehicle on the basis that they had not had the cause of the suspension fault diagnosed. This meant that the Tribunal could not be satisfied that the further suspension fault was sufficient to conclude that the accumulated faults with the vehicle were now such that a reasonable consumer could convincingly say that they have no confidence in the reliability of the vehicle.
[40] Mr Marshall and Ms Duckett have now proven that the vehicle has an ongoing ACE system fault. Given the nature of that fault, in that it affects the vehicle’s suspension, handling and performance, the potential cost of the required repair and the nature and extent of the other faults that have arisen with this vehicle since purchase, I am now satisfied that a reasonable consumer could convincingly say that they have no confidence in the reliability of the vehicle. I am therefore satisfied that Mr Marshall and Ms Duckett have proven that the vehicle’s faults amount to a failure of a substantial character and that they are entitled to reject the vehicle.
[41] I acknowledge submissions from New Zealand Car that Mr Marshall and Ms Duckett have owned this vehicle for nearly 15 months and have driven more than 9,000 km in that time. These factors are clearly relevant to my consideration of whether they ought to be entitled to reject the vehicle. However, in concluding that rejection is appropriate in this case, I note that the ACE system fault is not a recent fault and is most likely to have been present since shortly after purchase. I also note that Mr Marshall and Ms Duckett have repeatedly attempted to reject the vehicle, but New Zealand Car has not accepted those rejections and, until now, the Tribunal has not upheld them. Given those repeated unsuccessful attempts to reject the vehicle, I cannot reasonably conclude that Mr Marshall and Ms Duckett took too long to reject the vehicle.
What remedy, if any, are Mr Marshall and Ms Duckett entitled to under the Act?
[42] The remedies relevant to this claim are set out in s 18 of the Act, which is set out above.
[43] Under s 18(3)(a) of the Act, Mr Marshall and Ms Duckett are entitled to reject the vehicle because its accumulated faults amount to a failure of a substantial character. Under s 23(1)(a) of the Act, Mr Marshall and Ms Duckett are therefore entitled to recover any money paid or other consideration provided for the vehicle from New Zealand Car. In that regard, Mr Marshall and Ms Duckett is entitled to recover:
- (a) $6,165 – being the capital component of all payments made by Mr Marshall and Ms Duckett under the collateral credit agreement as from the date the collateral credit agreement was entered into until 8 February 2019 (the date that Mr Marshall communicated an intention to reject the vehicle); and
- (b) $1,799.06 – being all payments of principal and interest made by Mr Marshall and Ms Duckett under the collateral credit agreement since they rejected the vehicle until the date of this decision.
[44] Under s 18(4) of the Act, Mr Marshall and Ms Duckett are also entitled to recover the cost of having the ACE fault diagnosed. In that regard, Mr Marshall and Ms Duckett are entitled to recover $619.30, being the amount they paid to Duncan & Ebbett for its assessment of the vehicle in January 2019.
[45] Mr Marshall and Ms Duckett are also entitled to have their ongoing rights and obligations under the collateral credit agreement with MTF assigned to New Zealand Car. The relevant provisions are set out in s 89(2) and (3) of the Motor Vehicle Sales Act 2003 (the MVSA), which state:
89 Jurisdiction of Disputes Tribunal
...
(2) A Disputes Tribunal may order that the rights and obligations of the buyer of a motor vehicle under a collateral credit agreement vest in a motor vehicle trader if—
(a) the collateral credit agreement is associated with the contract for the sale of that motor vehicle; and
(b) the motor vehicle trader is a party to that contract for sale; and
(c) either one of the following circumstances applies:
(i) the buyer exercises the right conferred by the Consumer Guarantees Act 1993 to reject that motor vehicle and, on a claim by the buyer under section 47(1) of that Act, the Disputes Tribunal orders the motor vehicle trader to refund any money paid, or other consideration provided, for that motor vehicle; or
(ii) the Disputes Tribunal finds that the buyer has suffered, or is likely to suffer, loss or damage by the conduct of the motor vehicle trader that constitutes, or would constitute, any of the conduct referred to in section 43(1) of the Fair Trading Act 1986 and the Disputes Tribunal makes an order under section 43(2) of that Act declaring the whole or any part of the contract for sale to be void.
(3) For the purposes of subsection (2), collateral credit agreement, in relation to a contract for the sale of a motor vehicle, means a contract or agreement arranged or procured by the motor vehicle trader or the buyer for the provision of credit by a person other than by the motor vehicle trader to enable the buyer to pay the price reserved by the contract for sale in respect of the motor vehicle.
[46] The criteria in s 89(2) of the MVSA for the assignment of rights and obligations under a collateral credit agreement are all met in this case as follows:
- (a) the agreement between Mr Marshall and Ms Duckett and MTF is a collateral credit agreement for the purposes of s 89(2) of the MVSA. The agreement was arranged or procured by Mr Marshall and Ms Duckett for the provision of credit by MTF to enable Mr Marshall and Ms Duckett to purchase the vehicle;
- (b) New Zealand Car sold the vehicle to Mr Marshall and Ms Duckett, so it is a party to the contract to purchase the vehicle; and
- (c) Mr Marshall and Ms Duckett have exercised the right conferred by the Act to reject the vehicle and the Tribunal has ordered that New Zealand Car must refund any money paid, or other consideration provided, for that vehicle.
[47] Accordingly, under s 89(2) of the MVSA, all of Mr Marshall and Ms Duckett’s rights and obligations under the collateral credit agreement are also assigned to New Zealand Car from the date of this decision.
DATED at AUCKLAND this 2nd day of April 2019
B.R. Carter
Adjudicator
[1] Also known as Emily Marshall. I have used Emily Duckett’s maiden name throughout this decision as that was the name used in the application and is the name used on the vehicle’s registration papers. Any reference to Emily Duckett in this decision should also be treated as a reference to Emily Marshall.
[2] Cooper v Ashley & Johnson Motors Ltd (1996) 7 TCLR 407 (DC).
[3] At 417.
[4] Duckett v New Zealand Car Ltd [2018] NZMVDT 95.
[5] Duckett v New Zealand Car Ltd [2018] NZMVDT 255.
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