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Freehold Express Limited v Hitchinson Motors Limited t/a Team Hutchinson Ford - Reference No. MVD 443/2018 [2019] NZMVDT 71 (12 April 2019)

Last Updated: 19 May 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 443/2018
[2019] NZMVDT 071

BETWEEN FREEHOLD EXPRESS LIMITED

Purchaser

AND HUTCHINSON MOTORS LIMITED T/A TEAM HUTCHINSON FORD

Trader

HEARING at Christchurch on 1 February 2019, further submissions received on 4 and 7 February 2019
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor
APPEARANCES

D P Stevenson, Director of Purchaser
B Casey, Witness for Purchaser
J O Hutchinson, CEO and Director of Trader
G Barnard, Service Manager of Trader
D Milne, Loss Adjuster for Loss Adjusters (SI) Ltd, Witness for Trader

DATE OF DECISION 12 April 2019

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

Freehold Express Ltd's application is dismissed.

___________________________________________________________________


REASONS

Introduction

[1] In 2016, Freehold Express Ltd purchased a brand new Ford Ranger Wildtrak from Hutchinson Motors Ltd trading as Team Hutchinson Ford (THF). The vehicle is heavily modified. Most of the modifications were carried out by other suppliers, mainly Peter Munro Commercials. However, THF assumed a project manager role and the vehicle was sold by THF as a complete package with most of the modifications included. That brought the total purchase price to $104,707.66.
[2] At the heart of Freehold Express's claim is its allegation that the vehicle THF sold to it had illegal and dangerous modifications, resulting in two accidents. But Freehold Express also alleges there were numerous other problems with the vehicle. Its allegations can be broadly grouped under the following headings:
[3] Freehold Express seeks damages. In monetary terms, the primary remedy sought is $65,143.62 in damages under s 55 of the Sale of Goods Act 1908. This claim comprises:

Damages for being sold a dangerous illegally modified 4WD Ranger, which was not lawfully entitled to be on the road, and being deprived of the use of the 4WD Ranger for its intended purposes.

696 days (10/10/2016-14/6/18) at $66.80 per day $46,492.80

Remove & Replace defective vinyl wrap $ 7,700.00

Replacement of under-rated shock absorbers $ 1,147.83

ARB Recovery Hook Refund – recovery hook $ 305.00

– labour – fitting $ 80.00

Insurance claim excess $ 921.00

Sub Total $56,646.63

GST $ 8,496.99

TOTAL $65,143.62

Freehold Express's damages claim is largely outside the Tribunal's jurisdiction

[4] At the outset, it is necessary to explain the limits of this Tribunal’s jurisdiction. This is because, at the very least, I have concerns that Freehold Express's claim for damages largely does not fall within those limits.
[5] The Tribunal’s jurisdiction is set out in s 89 of the Motor Vehicle Sales Act 2003, which provides, as far as is relevant:
  1. Jurisdiction of Disputes Tribunal

(1) A Disputes Tribunal has jurisdiction, on the application of any party, to—

(a) inquire into and determine any application or claim, as the case may be, under any of the following if that application or claim is in respect of the sale of any motor vehicle:
(i) the Fair Trading Act 1986:
(ii) the Consumer Guarantees Act 1993:

(iii) subpart 3 of Part 2 or Part 3 of the Contract and Commercial Law Act 2017; and

(b) make any order that a court or the Disputes Tribunal constituted under the Disputes Tribunals Act 1988 may make under,—

(i) [Repealed]

(ii) in the case of proceedings under the Fair Trading Act 1986, section 43(2) of that Act; or

(iii) in the case of proceedings under the Consumer Guarantees Act 1993, section 39 or 47 of that Act; or

(iv) in the case of proceedings under subpart 3 of Part 2 or Part 3 of the Contract and Commercial Law Act 2017, sections 43 to 48 or section 194 of that Act.

...

Freehold Express's claim under the Sale of Goods Act 1908

[6] As will be immediately apparent, there is no reference in s 89 (above) to the Sale of Goods Act 1908. This is because that Act was repealed in 2017, upon the commencement of the Contract and Commercial Law Act 2017.[1] What was the Sale of Goods Act has become pt 3 of the 2017 Act. The only order that the Tribunal is empowered to make under pt 3 of the Contract and Commercial Law Act 2017 is set out in s 194, which provides:
  1. Specific performance

(1) The plaintiff in a proceeding for breach of contract to deliver specific or ascertained goods may, at any time before judgment, make an application for a direction under this section.

(2) The court may, if it thinks fit, grant the application by directing that the contract be performed specifically, without giving the defendant the option of retaining the goods on payment of damages.

(3) The judgment may be—

(a) unconditional; or

(b) on the terms and conditions as to damages, payment of the price, and otherwise that the court thinks just.

[7] Section 194 does not apply to the facts of the present case. This is because the contract between Freehold Express and THF has already been performed — the vehicle was delivered to Freehold Express in October 2016. Accordingly, there is no possible basis on which this Tribunal could grant any relief in relation to any breach of pt 3 of the Contract and Commercial Law Act 2017.
[8] Freehold Express's claim for interest and special damages is made under s 55 of the Sale of Goods Act. The equivalent provision in the Contract and Commercial Law Act is s 196. The Tribunal has no jurisdiction in respect of s 196. Therefore, Freehold Express's claim for interest and special damages under s 55 of the Sale of Goods Act (or its equivalent under the Contract and Commercial Law Act) cannot possibly succeed in this Tribunal.

Freehold Express's claim under the Fair Trading Act 1986

[9] In its primary submission, dated 15 October 2018, Freehold Express alleges THF breached s 9 of the Fair Trading Act 1986. That section provides that "[n]o person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive". Section 9 is directed to promoting fair dealing in trade by proscribing conduct which, examined objectively, is deceptive or misleading in the particular circumstances.[2]
[10] Specifically, Freehold Express alleges that THF misled and deceived Freehold Express’s director, Dennis Stevenson, before Freehold Express purchased the Ranger by "coercing [him] to purchase the Ranger". In particular, Mr Stevenson alleges that he would have purchased a Toyota Hilux instead of a Ford Ranger, were it not for the representations made in trade by THF that the vehicle would be fit for Freehold Express's "intended purposes". These were described by Mr Stevenson as:

...recreational pursuits of camping, hunting and fishing, all of which include 4W driving... I made it clear that the Ranger would be heavily laden with four, sometimes five occupants, supplies, camping and hunting/fishing equipment. In addition the vehicle was to be used on a weekly basis by my son who is a builder.

[11] If Freehold Express had purchased a Hilux then, it is alleged, Freehold Express would have been able to enjoy that vehicle and participate in and enjoy recreational pursuits with the vehicle instead of "enduring this prolonged nightmare with THF".
[12] Freehold Express also alleges misleading and deceptive conduct in relation to THF’s promotion of the Ford Ranger through brochures depicting the vehicle in several extreme off-road four wheel drive environments, including with tyres off the ground, crossing rivers, carrying heavy loads uphill off-road and towing a boat across a river.
[13] Furthermore, Freehold Express alleges that THF set out to mislead and deceive Freehold Express during the process of carrying out various repairs to the vehicle, by blaming Mr Stevenson for damage sustained to the vehicle in December 2017 when, Freehold Express alleges, THF knew full well that its own illegal modifications to the vehicle were the cause of the damage.

Tribunal's assessment of Freehold Express's claim under the Fair Trading Act 1986

[14] A difficulty in evaluating Freehold Express's allegations that THF breached the Fair Trading Act is that they are somewhat generalised allegations of misleading and deceptive conduct.
[15] I certainly accept that, like most motor vehicle traders, THF would have done its best to persuade Freehold Express, through Mr Stevenson, to purchase the Ford Ranger in 2016.
[16] However, after careful assessment of all of the submissions and evidence provided to the Tribunal by Freehold Express, I have been unable to identify any specific representation made by THF in selling the vehicle to Freehold Express that was misleading or deceptive. I therefore do not consider that Freehold Express has established any breach of the Fair Trading Act in respect of any conduct leading to Freehold Express’s decision to purchase the vehicle. That decision to purchase, I consider based on the material that has been placed before the Tribunal, was a decision freely made by the director of Freehold Express, largely relying on his personal experience and the information obtained by him in deciding which sort of vehicle to buy.
[17] Nor do I consider that Mr Stevenson has established that any aspect of the Ford Ranger marketing material was misleading or deceptive. While his own experience of his use of the vehicle may not have matched his expectations after viewing the depictions in the marketing material showing the vehicle engaged in various four-wheel driving activities, Freehold Express did not persuade me that any specific aspect of the marketing of the vehicle was misleading.
[18] In any event, the evidence did not clearly specify to what extent the marketing Freehold Express objected to could be regarded as misleading or deceptive conduct of THF, and to what extent it was the conduct of the manufacturer, which was not a party to this proceeding.
[19] Finally, for reasons which I will develop later in this decision, my assessment of the evidence, reached in consultation with the Tribunal's Assessor, Mr Binding, is that the two accidents in which the vehicle was involved were the result of user error rather than "THF's illegal modifications to the vehicle". It follows that Freehold Express has not persuaded me that THF engaged in any misleading or deceptive conduct in denying that THF was responsible for damage caused in the accident on 9 December 2017.

Freehold Express's claim under the Consumer Guarantees Act 1993

[20] As I do not consider that Freehold Express has established any basis for a claim under the Fair Trading Act or the Contract and Commercial Law Act, it follows (in terms of the Tribunal's jurisdictional limits described above) that Freehold Express's claim falls to be determined under the Consumer Guarantees Act 1993 (the CGA).
[21] Freehold Express’s case was mainly centered on its allegation that illegal modifications to the vehicle, carried out under the supervision of THF, caused the vehicle to have two accidents. In addition, Freehold Express alleges the vehicle had, and in some cases still has, several defects. Each of these matters requires Freehold Express to establish either or both a breach of the guarantee of acceptable quality in s 6 of the CGA, and/or a breach of the guarantee as to fitness for a particular purpose in s 8 of the CGA.
[22] Section 6(1) of the CGA 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.
[23] "Acceptable quality" is defined in s 7 of the CGA (as far as is relevant) as follows:
  1. 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.

[24] 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.
[25] Section 8 of the CGA provides as follows:

8 Guarantees as to fitness for particular purpose

(1) Subject to section 41, the following guarantees apply where goods are supplied to a consumer:

(a) that the goods are reasonably fit for any particular purpose that the consumer makes known, expressly or by implication, to the supplier as the purpose for which the goods are being acquired by the consumer; and

(b) that the goods are reasonably fit for any particular purpose for which the supplier represents that they are or will be fit.

(2) Those guarantees do not apply where the circumstances show that—

(a) the consumer does not rely on the supplier’s skill or judgment; or

(b) it is unreasonable for the consumer to rely on the supplier’s skill or judgment.

(3) This section applies whether or not the purpose is a purpose for which the goods are commonly supplied.

(4) Part 2 gives the consumer a right of redress against the supplier where the goods fail to comply with any guarantee in this section.

What is Freehold Express seeking in its claim?

[26] First, Freehold Express is claiming $921, which represents the excess it paid on its insurance claim for repairs to the vehicle following the accident that occurred in December 2017. For some reason Freehold Express is also claiming GST on top of that amount of $921, even though, from the materials produced, it appears that the insurance excess of $921 was GST inclusive.
[27] Second, Freehold Express seeks an award of what it describes as “interest and special damages” under s 55 of the Sale of Goods Act. As explained already above, this provision (or more appropriately its current equivalent, s 196 of the Contract and Commercial Law Act 2017), is outside the Tribunal’s jurisdiction. Nevertheless, I will set out the details of Freehold Express’s claim.
[28] As set out above, Freehold Express's damages claim is itemised at $66.80 per day for the 696-day period between 20 October 2016, the date of delivery of the vehicle, and 14 June 2018, the day on which Freehold Express acknowledges that the vehicle was finally made safe and road legal. Thus, the total of this damages claim is $46,492.80 plus GST, reflecting the period during which it is alleged that Freehold Express was "deprived of the use of the 4WD Ranger for its intended purposes".
[29] This daily figure of $66.80 appears to reflect the daily cost of servicing the loan taken out by Freehold Express to pay for the vehicle. A lower daily figure and a shorter period was used in an earlier letter of demand by Freehold Express against THF for being deprived of the use of the Ranger for its intended purposes. In setting out the lower figure, Mr Stevenson claimed in an email, dated 16 July 2018:
[30] No information was provided to explain the discrepancy between the lower amount sought in respect of Freehold Express's July 2018 claim made directly to THF, and the higher amount and longer period in its October 2018 claim to the Tribunal.
[31] Freehold Express also claims damages in the sum of:
[32] In total, including GST, the above damages claim amounts to $65,143.62.
[33] In addition to the claim for damages, Freehold Express also seeks orders that THF:

What happened?

Purchase of the vehicle

[34] Freehold Express purchased the vehicle brand new on 29 July 2016. Mr Stevenson signed the VOSA on behalf of his company. He signed a clause in the VOSA purporting to exclude the application of the CGA, but THF confirmed in the hearing that it did not seek to rely on that exclusion clause.
[35] Freehold Express is a company providing financial advice. Material produced to the Tribunal indicates Freehold Express markets itself as advising its customers "how to payback your mortgage 15 years earlier while you keep your existing lifestyle". There was no evidence to suggest that the vehicle's acquisition or use was connected with the functions of the company itself in any way. Rather, the vehicle seems to have been intended to meet the personal and recreational needs of Mr Stevenson and has been used for camping, hunting and fishing in the weekends. During the week, the vehicle is used as a business vehicle by Mr Stevenson's son, who is a builder.
[36] I understand that the vehicle is still in daily use. As at the date of the application to the Tribunal, 15 October 2018, the vehicle had travelled 38,939 km since purchase by Freehold Express. That figure is presumably higher now, although the Tribunal was not provided with an up to date mileage.
[37] The equipment that was intended to be installed on the vehicle reflected its dual recreational and work purposes. The vehicle offer and sale agreement (VOSA) records a base price for the vehicle of $69,640. To that was added more than $35,000 in extras. These extras were all listed on the VOSA and included:

[38] The order for equipment that was installed by Peter Munro Commercials comprised an extensive list of more than 20 items of equipment, plus 41.5 hours of labour for installation of that equipment. The total value of the order with Peter Munro Commercials was $26,067.63. This order was incorporated within the VOSA entered into between THF and Freehold Express.
[39] Particularly relevant to the present claim is the supply and installation by Peter Munro Commercials of an ARB air locker. This is a device that allows, at the flick of a switch, the vehicle’s front differential to be locked, preventing differential action between the front left and front right axles. This allows the vehicle to maintain maximum possible traction in difficult terrain.[3]
[40] The parties were at odds about the extent to which Freehold Express relied on THF's expertise in the selection and installation of equipment on the vehicle. THF rightly pointed out that approximately a quarter of the value of the vehicle’s total purchase price related to equipment installed by Peter Munro Commercials. However, I agree with Freehold Express’s description of THF as the “project manager” for the vehicle as a whole, including its modifications. For whatever reason, the total purchase transaction was structured through a single VOSA with THF described as the trader. The evidence indicated that Mr Stevenson was quite particular about the equipment he wanted to be installed on the vehicle. Equally, it appears clear that THF gave its expertise to Freehold Express in terms of recommending and arranging components and installers.
[41] I noted an exchange between Mr Stevenson and the THF vehicle sales agent Peter Datlen which I considered has a special significance in terms of Freehold Express’s ongoing issues regarding the vehicle. In an email, dated 20 December 2016, Mr Stevenson stated that he has “no problem dealing with Fords suppliers directly for any future warranty issues as allegedly detailed in the alleged agreement that you have referred to above”. This was in response to Mr Datlen’s comment that there was a pre-sale discussion in which THF “were happy to invoice all the aftermarket parts you had organised to put on but if any future issues came up we agreed you were to deal with the suppliers directly”.
[42] That exchange, in my view, has particular significance in relation to any ongoing investigations necessary to determine whether the vehicle has any remaining defects and, if so, what should be done to remedy them, as I will describe further below.

What went wrong with the vehicle?

[43] At the heart of Freehold Express’s claim that the Ford Ranger was illegally and dangerously modified is the fact that the vehicle was involved in two “accidents”, both of which involved the operation of the ARB front diff locker that was installed by Peter Munro Commercials.
[44] Furthermore, in the aftermath of the second of these "accidents", Mr Stevenson arranged for the vehicle to be independently inspected, in the course of which it was discovered that the vehicle had no LVV certification, as was required.[4] As a result, the New Zealand Transport Agency (NZTA) revoked the vehicle’s warrant of fitness on 18 April 2018.
[45] As so much of Freehold Express’s claim is driven off these accidents and THF's alleged failure to LVV certify the vehicle, it is necessary to explain the background in some detail.

Lack of LVV certification

[46] As described above, Freehold Express’s Ford Ranger was extensively modified from factory specifications. As a result, it was not in dispute that the vehicle required LVV certification by an NZTA appointed LVV certifier. This certification was required before the vehicle was issued its initial warrant of fitness on 14 October 2016 before its delivery to Freehold Express.
[47] The evidence is clear that prior to the vehicle's delivery, both THL and Freehold Express knew that the vehicle required LVV certification. However, for some reason, it is not clear to me why, the vehicle was delivered to Freehold Express in October 2016 without being LVV certified.
[48] THF argued that this omission occurred because Mr Stevenson had insisted on having access to the vehicle, as he was concerned about the delays that had occurred in installing all the equipment on the vehicle. Mr Stevenson argued that THF had told him that the vehicle did not need an LVV certificate after all. I did not find either party’s position to be entirely validated on the evidence produced to the Tribunal. In particular, I found no documented evidence that THF ever informed Freehold Express at the time the vehicle was ready for delivery that it would not require LVV certification. Nevertheless, I accept Freehold Express’s submission that it was THF’s responsibility to ensure that the vehicle had any necessary LVV certificate prior to its being given a warrant of fitness by THF and prior to its delivery to Freehold Express.
[49] On 20 March 2018, Mr Stevenson took the vehicle to Ian Smith, a LVV certifier of Smithy’s Modified Vehicle Certification. Mr Smith reported several concerns about the vehicle to the NZTA. In an email dated 31 March 2018, Mr Smith set out his concerns as follows:
  1. Wheels fitted are 55 mm over OEM track width of 1,605 mm.
  2. Rear spring Extended Shackle’s fitted requiring LVV cert.
  3. A/M [after market] front spring and shockies, These Are Causing Top suspension arms to contact spring on full suspension extension also Adversely Affecting at extremes of suspension Travel Binding outer steering tie rods + excessive angularity of inner and outer CV joints, Having looked at the Failed component’s i.e. Steering Rack + inner CV joints its clear to see how this has a cured (see Photos attached).
  4. A Bump steer check hasn’t been performed at this stage but would have increased beyond that expected at original range of operations as a result of suspension modifications.
  5. A/M rear bumper bar fitted with spare wheel + fuel container attached to outer sections of bar obscures tail lights, A/M lights fitted to Bar are non compliant (size) also plate light these require Lvv certification.
  6. rear Mud Flaps Required.
  7. Front Diff is fitted with a diff lock which is not permitted for on road use, it would be my recommendation (Not a Requirement) that it be wired into Low 4WD with a clear indication Lamp., At present the switch is mounted @ front of Consul which isn’t easy to see and operate
  8. rear springs are D arched, Ford Ranger rear springs are normally Flat with a slight arch when new, It is noted that No normal body attitude exists front to rear and side to side.
  9. Please find attached photos some components in Question, I have 107 photos available as your request.

[50] On 20 March 2018, the date of Mr Smith's inspection, he issued a LVV rectification form listing aspects of the vehicle which failed to comply with the LVV Code. The rectification form stated that the following items needed to be rectified and the vehicle reinspected before the certifier would sign off the vehicle as complying with the Code:
  1. Remedy the following, Steering Tie rod Bind @ full susp drop on turns (worst).
  2. Excessive CV Joint angles @ full susp drop (Extension).
  3. Rear mudflaps required
  4. Rear position lamps + indicator in rear bumper to comply (to small).
  5. Remedy Rear leaf Springs (worn).

* Road test to complete.

[51] Based on this information, on 18 April 2018, the NZTA revoked the vehicle’s warrant of fitness. In addition, the NZTA issued THF with a warning on its inspection organisation records. THF was told that if similar matters came to the attention of the Transport Agency in the future it may result in a fit and proper assessment being undertaken. The Transport Agency directed THF to ensure that, in future, all inspection activities are carried out in accordance with the relevant legislation and rules.
[52] Mr Stevenson took a video of Mr Smith’s inspection of the vehicle on 20 March 2018. The video shows the vehicle on a hoist with the front suspension hanging at full extension. Mr Stevenson put that video on YouTube and gave access to the Tribunal to view it. Based on the video, Mr Binding agreed that when the vehicle was supported on a hoist allowing its wheels to drop on full extension the outer steering tie rods were binding due to what it appeared to be the excessive angularity of the inner and outer CV joints.
[53] Mr Stevenson also produced a letter from a Mr Murray Jepson, an advanced trade mechanic, who had viewed the video and commented that:
[54] Mr Jepson expressed his opinion that the vehicle's CV joints would come under considerable load in day to day operation, causing "premature and/or catastrophic failure with such acute angles as shown in the video". Mr Jepson also considered that bound ball joints in partial or full lock would damage either the steering box and/or steering arms and, again, could cause broken or bent steering arms and failure of the steering box internals, casing and/or mounting bolts. This, according to Mr Jepson, "could result in full loss of steering control of the vehicle causing serious crash risk".

The first "accident" — 17 May 2017

[62] On 17 May 2017, Mr Stevenson’s son picked up the vehicle from an Expresso Car Wash café where it had been left for detailing. Unbeknown to Mr Stevenson’s son, the ARB front diff locker had been accidentally switched on, apparently by the car groomer. As Mr Stevenson’s son drove the vehicle away, the front diff locker engaged on the hard-surfaced, tar sealed roadway. Mr Stevenson's son did not give first hand evidence of what happened, but Mr Stevenson reported that the vehicle’s steering wheel was “ripped from the driver’s hands and the out of control Ranger ran over a roundabout”. Mr Stevenson then reported that the steering fault then disappeared, the steering wheel locked solid (several times), and the steering fault then disappeared again (several times). Mr Stevenson’s son stopped driving the vehicle, which was collected by the AA on a flatbed recovery vehicle and taken to THF for assessment.
[63] On this occasion, no damage was done to the vehicle’s steering assembly. THF and Loss Adjustors (SI) concluded that the vehicle responded as expected given the inadvertent engagement of the front diff locker. Mr Stevenson disputed this assessment. In particular, he alleged that the vehicle turned sharply right and the steering wheel was ripped from the driver’s hands as it spun full lock to the right, following which the vehicle drove over the roundabout. Mr Stevenson considered that this suggested a fault in the front diff locker which he thought may be caused by the CAN BUS sending erroneous codes and/or electrical current to the vehicle’s engine control unit (ECU).
[64] No technical evidence was supplied by Mr Stevenson to support his allegation of an electrical fault. Mr Binding advised that the evidence of the vehicle’s response as reported by Mr Stevenson was consistent with what would happen if attempting to make a turn while the front diff locker is engaged. Mr Binding considered it was unsurprising that, if the driver attempted to turn the vehicle while the diff locker was engaged, the vehicle would track in the same direction as the attempted turn and that it could do so violently, especially on a sealed road. In Mr Binding’s view, attempting to turn the vehicle while the diff locker is engaged is contrary to the proper use of that equipment. In Mr Binding’s experience, it is only appropriate to drive the vehicle in a constant direction of travel while the diff locker is engaged. It is not appropriate to attempt to turn the vehicle, other than to make minor adjustments and only while off-road (as the diff locker should not be used on sealed surfaces at all).
[65] Mr Binding did not accept that Mr Stevenson had produced any evidence to support his theory that a possibly incorrectly wired front diff locker was sending erroneous messages on the CAN BUS. Nevertheless, Mr Binding acknowledged that there may be an outstanding issue concerning the interaction of the front diff locker with the vehicle’s steering rack. In particular, it was suggested in the material produced on behalf of Freehold Express that Peter Munro Commercials, which installed the diff locker, had recommended the replacement of the vehicle’s electric steering rack with a hydraulic steering rack, because it may function better in conjunction with the diff locker. There was a lack of evidence to support the rationale for this recommendation and so it is not possible for the Tribunal to make any findings in that regard. However, this could be a matter for Mr Stevenson to explore further with Peter Munro Commercials if he wishes to assure himself that the diff locker’s interaction with the steering rack is optimised. That would be consistent with Mr Stevenson's statement to Mr Datlen on 20 December 2016 that he has “no problem dealing with Fords suppliers directly for any future warranty issues".
[66] After the 17 May 2017 accident, the vehicle was returned to THF, which diagnosed accidental activation of the front diff locker by the car groomer as the cause. The vehicle was checked, no damage was noted, and it was returned to service.

The second “accident” — 9 December 2017

[67] On 9 December 2017, Mr Stevenson was called out to recover his other 4WD vehicle, which had broken down on Worsleys Track some 400 m beneath the car park at the end of Worsleys Road. Mr Stevenson decided to use the Ford Ranger to tow his other 4WD home for repair. Mr Stevenson described what happened next, as follows:

The Wildtrak was effortlessly towing the other 4WD up the hill at maybe 20-25 km/h. Depending on the 4WD track I usually travel at around walking speed but due to the ascent and vehicle in tow I was going faster than normal. I was half way up the final rise, some 50 m from the Worsleys Road car park in 4WD low with front and rear diff lockers engaged for maximum traction. I veered right to miss a rut when the steering wheel was ripped from my hands, I don’t know if it was because I hit a bump or if it was a repeat of what happened to Louis on 19/5/17 (or both). In any event the vehicle hit a bump on the track and the front wheels of the Wildtrak lifted; probably due to a combination of the load on the tow bar and the faster than my normal four wheel driving speed (if you can call 20-25 km/h fast; you can’t drive like a hoon when you’re towing a vehicle!); when the front wheels came back down there was a heck of a bang so I immediately applied the brakes. I had no steering and closer inspection revealed that both front CV axle shafts had broken and the right tie rod was bent.

[68] Loss Adjusters (SI)’s report states that the CV joints and steering components self-destructed after the front diff lock was engaged and the front of the vehicle left the ground, with the wheels crashing down onto the hard, undulating track, while the steering wheel was turned to miss a rut. Mr Stevenson disputed whether the wheels left the ground, saying that he was driving the vehicle and did not even know if that happened. However, this was inconsistent with Mr Stevenson's summary of events as quoted above in which he clearly stated that the front wheels of the Wildtrak lifted and then came back down with a “heck of a bang”.
[69] Loss Adjusters (SI) concluded that “the evidence of this outcome is what would be expected from the front diff lock being engaged, as both axles are locked which will not allow steering”. Again, Mr Stevenson disputed this analysis. He stated that the steering wheel spun violently clockwise many times, the Ranger turned right, hit the side wall of the track and the suspension unloaded. He described this as “exactly the same as what happened during the earlier incident in May 2017”. Mr Stevenson questioned why, if both axles were locked, the steering wheel and vehicle turned right instead of going straight ahead as asserted.
[70] Mr Binding found Loss Adjusters (SI)’s analysis more persuasive than Mr Stevenson's. Mr Binding again noted that, with a front diff locker engaged, when the driver attempts to make a turn the vehicle will track in the same direction violently. This appears to have been what happened during both “accidents”, with the vehicle tracking violently in the direction in which the steering wheel was turned. Indeed, the violence of the vehicle's response is likely to have been multiplied by the loads involved with a vehicle under tow and the high speed of the Ranger.
[71] Loss Adjusters (SI)’s report quotes from the operating conditions for the diff locker as follows:

Although ARB air lockers are engineered tough they should never be engaged during wheels spin (i.e. a situation when one axle is spinning faster than the other on the same axle). This could cause undue wear or damage to your air locker or other drive train components as a result of the shock created when both wheels are suddenly forced to turn at the same speed. Be sure you are stopped or driving in a straight line without any acceleration or deceleration.

[72] Mr Stevenson asserted that he complied with these operating conditions. He stated he had the diff lockers on with full traction travelling at a constant speed of 20 to 25 km/h when the steering issue occurred. However, Mr Binding notes that in both of Mr Stevenson’s reports of the two accidents, he described an attempt to steer the vehicle. In Mr Binding’s view, the front diff locker should never be used while attempting to steer the vehicle for anything more than minor adjustments. It should only be used while the vehicle is travelling in a straight line, and preferably at a much slower speed than 20-25 km/h. In Mr Binding’s view, what happened to the vehicle in respect of both of these “accidents” was unsurprising given the reported driver inputs by Mr Stevenson and his son.
[73] In any event, as has been pointed out by THF and Loss Adjusters (SI), the repairs that were carried out on the vehicle in December 2017 by CV specialists after the second “accident” were reimbursed (apart from an excess of $921) by Vero Insurance as a result of an accidental damage claim. The fact that this claim was made by Mr Stevenson on behalf of Freehold Express, and the fact that it was accepted by Vero Insurance, indicates that it was recognised as a sudden and unforeseeable loss, rather than one arising from mechanical failure.
[74] Based on Mr Binding’s assessment of the evidence, I do not consider that Mr Stevenson has established any defect in the operation of the vehicle, including in relation to its front diff locker, that led to either of the two reported “accidents”.
[75] Rather, what seems likely is that these “accidents” occurred in both cases as a result of user error. In that regard, I accept THF’s submission based on the report of its insurance assessor, that the damage that was caused in the second “accident” is unrelated to any vehicle defect for which THF is responsible.
[76] Finally, I also note an observation by Brent Downes of the NZTA, in a report on a complaint against THF for issuing a warrant of fitness without having arranged an LVV certificate for the vehicle. Mr Downes' observation is consistent with my findings above. He concluded:

The two main accidents that have caused the greatest concern and cost a lot of money in repairs both relate to the use of the front diff locker. This traction component should be used in extreme conditions off-road and by the nature of what it does, has an extremely detrimental effect on steering. It is not a WOF inspection concern.

Wheels falling off and brake issues/alleged revocation of manufacturer warranty

[77] Freehold Express alleges that, soon after it took possession of the vehicle, there were issues with its wheels and brakes which resulted in the vehicle having to be returned to THF on several occasions.
[78] Within a few weeks of delivery of the vehicle, Freehold Express returned the vehicle to Elite Wheels, which had fitted the wheels and tyres to the vehicle, to address gaps that had appeared between the external bead lockers and the wheel rims. Mr Stevenson described the work done by Elite Wheels as “shoddy craftsmanship”.
[79] On 18 May 2017, the left rear wheel almost fell off the vehicle. Freehold Express returned the vehicle to THF to replace broken or damaged wheel studs and the brake components. These repairs were covered under the new vehicle warranty, but Mr Stevenson said that THF blamed his four wheel driving and told him that the vehicle would no longer be covered under the manufacturer’s warranty while four wheel driving.
[80] Contrary to Mr Stevenson's claim, I found no evidence that THF ever revoked the manufacturer’s warranty in respect of the vehicle. Mr Hutchinson, on behalf of THF, confirmed that, after the second “accident”, he had a phone call with Mr Stevenson about the damage sustained in that accident in which Mr Hutchinson commented that towing an immobile 4WD up a 4WD track is not likely to be covered by the Ford warranty. After the hearing, THF supplied the Tribunal with a copy of the manufacturer’s warranty for the vehicle which contains the usual exclusions for claims caused by or attributable to misuse of the vehicle, failing to properly maintain and care for the vehicle, or exceeding the operating or capacity limitations specified for the vehicle, including overloading the vehicle or using it on obviously unsuitable terrain or surfaces. Otherwise, THF confirmed at the hearing that the manufacturer's warranty is still in place.
[81] Incidentally, THF also indicated at the hearing that Ford is generally quite pragmatic as regards components that are connected to after-market accessories, which might be thought to be a relevant consideration in respect of the numerous modifications that have been done to this vehicle.
[82] In the end, however, I find that Freehold Express’s allegation that the manufacturer warranty had been revoked, or that THF had told Freehold Express that the Ranger would no longer be covered under the warranty while it was four wheel driving, has not been made out.
[83] On 7 August 2017, Freehold Express reported that the brakes were “pulsing”. It returned the vehicle to THF. At this stage the vehicle's odometer reading was 20,423 km. THF said that the brakes needed to be machined urgently but refused to do this under warranty. In my view, which was confirmed by Mr Binding, there was insufficient evidence to establish any breach of the guarantee of acceptable quality in relation to this issue. Rather, it seems to us that this was a matter of ordinary wear and tear and vehicle maintenance for which Freehold Express was responsible.
[84] On or around 3 September 2017, one of the vehicle’s wheels fell off. This was a surprise as there had been no noise in the vehicle to indicate any problem until only one stud was holding the wheel to the axle. It was found that five out of six studs had shorn off and damage to the brakes was identified also. After investigation, THF confirmed that the wrong sized wheels were installed on the vehicle and that they had not been seated square to the hub.
[85] This matter was eventually resolved by THF refunding the amount that Freehold Express had paid for the vehicle’s wheels and tyres so that Freehold Express could install replacement wheels and tyres itself. This resolution was recorded in an email exchange between Mr Hutchinson and Mr Stevenson on 26 September 2017, in which it was agreed that THF would pay Freehold Express $6,463 in respect of the wheels and tyres, the cost of an independent inspection of the vehicle and a refund of the $500 that had been included in the VOSA for an LVV certificate which was not issued.
[86] On its face, the wheels and tyres appear to have been acknowledged as being unsuitable for the vehicle. An issue as to whether they were of acceptable quality therefore arises and a breach of the guarantees of acceptable quality/fitness for purpose appears to have been made out. However, the email exchange on 26 September 2017 reveals quite clearly that the parties have entered into a settlement in respect of this aspect of the dispute. Parties are free to settle their disputes under the CGA and indeed the Tribunal encourages them to do so.[5] In the present case, this appears to have occurred and so there is nothing left by way of a dispute in relation to the wheels, tyres and brake issues for the Tribunal to investigate or determine.

Vinyl wrap

[87] The VOSA records that a matt black wrap was supplied as an additional item with the vehicle on its delivery in October 2016. The wrap was listed on the VOSA as having a purchase price of $4,670.15. There was limited information provided to the Tribunal as to any pre-purchase discussions about the qualities of the vinyl wrap. However, Freehold Express alleged that it was told (it is not clear by whom) that the wrap would last four to five years. Freehold Express understood that when it came to sell the vehicle or remove the wrap, the paint underneath would be “like new” and the wrap would serve to protect the paint from scratches from bushes on four wheel drive tracks. No written evidence was produced to support these allegations of pre-sale representations. The wrap was installed on the vehicle on 19 August 2016 by a business called Leeding Signs.
[88] Approximately six months after the wrap was installed, Freehold Express returned the vehicle directly to Leeding Signs for repairs. Beer had been spilt on the outside of one of the doors, resulting in a large stain. Because this damage was attributable as “user error”, no warranty claim was made.
[89] The following year, on or around 23 April 2018, Mr Stevenson emailed THF about alleged deficiencies in the application of and alleged deterioration of the vinyl wrap, making the exterior of the vehicle an “unsightly mess”. This was the first time that Freehold Express alleged that the vinyl wrap was faulty. It appears that Leeding Signs itself did not become aware of Freehold Express’s concerns about the vinyl wrap until around July 2018.
[90] Several photographs were produced showing the wrap. It was clear from those photographs that the wrap itself has suffered significant degradation. The degradation shown was primarily in the form of deep scratches on the wrap as well as blotchiness on some surfaces, particularly on the vehicle’s bonnet.
[91] Leeding Signs accepted, after viewing photos of the vehicle, that there appeared to be abnormal degradation of the vinyl wrap product. However, it noted that the material shown in the photographs was extremely dirty and scratched and indicated a build-up of large amounts of foreign material that had been left to sit, and that the vehicle had been rubbed or dragged aggressively along something as it was possible to see many horizontal scratches running along the material.
[92] THF rejected Freehold Express’s claim that the vinyl wrap was defective. It argued, after conducting its own inspection, that the wrap had been subjected to extremely hard use by Freehold Express. THF also considered that Freehold Express had shown a lack of care of the wrap and had failed to maintain it in accordance with the user instructions given. THF denied Freehold Express’s assertion that the vehicle had been properly maintained and cleaned as this was not supported by its own inspection of the vehicle.
[93] After initially refusing to do so, Freehold Express eventually allowed Leeding Signs to inspect the vehicle. Its inspection confirmed, in its view, that the current condition of the vinyl wrap can substantially be attributed to the failure by Freehold Express to properly care for the vehicle to such an extent that any product-related warranty was void.
[94] Leeding Signs did acknowledge that if there was any defect in the installation of the wrap it would attend to rectifying it at its expense. I could not find any evidence showing whether, after its inspection of the wrap, Leeding Signs accepted Freehold Express's claim that the wrap had been negligently applied. I am assuming it did not. But the Tribunal did not have sufficient evidence to resolve this issue either way. If Freehold Express still claims the wrap was negligently applied, it will need to pursue that further with Leeding Signs.
[95] In Mr Binding's and my assessment, Freehold Express has failed to establish that the vinyl wrap failed to comply with the guarantee of acceptable quality. It was approximately 18 months after its installation that Freehold Express first alleged a defect in relation to the wrap. During that time the vehicle had travelled in excess of 20,000 km, including in such adverse conditions that the wrap had become very scratched. In relation to the alleged UV damage leading to the wrap's blotchy appearance, I note that some of the quotes produced by Freehold Express in relation to a replacement vinyl wrap for the vehicle indicate that the expected lifespan of vinyl on a horizontal plane, such as on the bonnet area of a vehicle, is reduced to a third of what might be expected on vertical surfaces.
[96] One supplier, Computaleta, stated that a “seven year film has a roughly one and a half to two year lifespan on a horizontal plane”. Another supplier, the Wrap Shop, said that the majority of the film it used was warranted for three years, but only for one and a half years on the roof and bonnet.
[97] The photographs of the wrap produced by Freehold Express indicated that the worst UV damage was, indeed, on the horizontal surfaces of the vehicle, consistent with the evidence described above. And the scratching all over the vehicle is purely attributable to the way in which the wrap has been treated. It is not indicative of a defect in the wrap itself.
[98] Accordingly, I find that Freehold Express has failed to establish that a reasonable consumer would find the appearance and durability of the vinyl wrap to be unacceptable, in light of:
[99] Furthermore, I note that Mr Stevenson himself confirmed in his submission that a feature of the wrap that appears to be "working well" is “its ability to protect the existing paint from being scratched from the occasional bush”. In saying this, Mr Stevenson appears to acknowledge that, while the vinyl wrap no longer looks attractive, it is still serving its primary purpose of providing protection to the underlying paintwork of the vehicle.
[100] It follows that when Freehold Express decides to sell the vehicle it will be able to remove the vinyl wrap, as appears to have been its original intention, and the underlying paintwork will be in better condition than it would have been if no wrap had been applied in the first place.
[101] For all of these reasons, I do not consider that Freehold Express has established any underlying defect in the quality of the vinyl wrap or its installation. In short, it is too hard to separate any possible premature degradation of the material from the damage that has been inflicted to it while in use by Freehold Express.

ARB underbody protection

[102] A portion of the ARB underbody protection fell off the vehicle when Mr Stevenson was driving the vehicle along a road. Freehold Express alleges that “the Ranger literally vaulted over this part when it dug into the road”. Because Freehold Express did not expect parts to fall off new vehicles, it had asked THF to reinstate the ARB underbody protection, but THF did not do so.
[103] THF responded that the piece in question had significant impact damage and had been smashed off. It does not consider that reinstatement of the broken part is its responsibility.
[104] It was not possible for the Tribunal to ascertain whether any defect in the underbody protection or its installation had resulted in the ARB underbody protection part coming off the vehicle. It was unclear exactly when this occurred, but it appears to have been some years and tens of thousands of kilometres after the vehicle was purchased. Given the uses to which the vehicle has been put, including off-road use, it seems more likely that this part was damaged during four wheel driving or other off-road recreational activities carried out by Mr Stevenson or his associates. There was certainly inadequate evidence to establish any underlying defect with the product.
[105] Accordingly, Freehold Express’s claim in relation to the ARB underbody protection is dismissed.

Vehicle exceeds manufacturer’s GVM

[106] Freehold Express complains that the vehicle is not fit for its intended purpose because, with five occupants and all equipment, it exceeds the manufacturer’s GVM before any hunting or fishing equipment, food, luggage and fuel or water in the rear carriers are loaded in the vehicle. The vehicle’s GVM is 3,200 kg. However, with 701 kg of accessories, plus five 80 kg occupants, the total vehicle mass will exceed the manufacturer’s GVM by 60 kg without luggage, tools, fuel or water in the rear carriers. Freehold Express complains that this leads to a significant safety issue resulting from overloading, explaining why the vehicle handles badly. Freehold Express further complains that, even though the vehicle has LVV certification, it is still not safe to use for its intended purposes. Freehold Express cannot load the vehicle up and take it for a recreational weekend away as intended. As soon as the occupants get in the vehicle, the manufacturer’s GVM is exceeded and it is unable to legally load any additional luggage or equipment into the vehicle.
[107] By way of relief, Freehold Express seeks “a satisfactory solution to the Ranger exceeding the manufacturer’s GVM before loaded with any hunting/fishing equipment, food, luggage and fuel or water for its intended hunting and fishing trips or holidays".
[108] In response to this claim, THF submitted that Freehold Express chose the accessories it wanted to fit to the vehicle, and indeed that Freehold Express has added further equipment to the vehicle post-delivery, making it even heavier.
[109] The Tribunal is not persuaded that this is a problem of THF’s making, or one for which it is required to provide a remedy to Freehold Express. I could not see any evidence that THF had specifically warranted to Freehold Express that the vehicle would not exceed its GVM if all the equipment desired by Freehold Express was added to the vehicle.
[110] In terms of a satisfactory solution to this issue, there appear to be two options. The first option is for Freehold Express to remove some of the equipment from the vehicle or take fewer occupants on recreational trips. The second option is for Freehold Express to explore whether the vehicle’s GVM can be altered. This is something that Freehold Express should discuss with an NZTA approved certifier to see whether a revised GVM can be assigned to the vehicle. I discussed this possibility with Mr Stevenson in the hearing and he confirmed that he had not made any such enquiries to date. That would be the first logical step for him to take, but I repeat that I do not consider this to be THF’s responsibility.
[111] Having reviewed all the evidence in this case, I am of the clear view that Freehold Express, through Mr Stevenson, was significantly involved in deciding which equipment it added to the vehicle. Given his experience with vehicles and knowledge of 4WD equipment, I consider that this is a matter of which Mr Stevenson should have been mindful at the time he was considering what equipment to install onto this new vehicle.

Underrated shock absorbers

[112] Freehold Express alleges that while the springs for the vehicle were upgraded during the LVV repairs, THF did not upgrade the underrated shock absorbers with heavy duty shock absorbers. Freehold Express seeks an order that THF meet the cost of fitting the necessary heavy duty shock absorbers. It provided a quotation from Chamberlain Suspension in the sum of $1,320 including GST.
[113] I do not consider that Freehold Express has produced sufficient technical evidence to demonstrate that replacement shock absorbers are required. In particular, it was not a condition of LVV certification that the vehicle must have uprated shock absorbers installed. Nor has Freehold Express produced any technical evidence to demonstrate that the shock absorbers that are currently installed on the vehicle are in any way inadequate, such that the guarantee of acceptable quality in the CGA would have been breached.
[114] Accordingly, this claim is dismissed.

Recovery hook refund

[115] Finally, Freehold Express seeks an order for the refund of the price of a recovery hook that was installed onto the front of the vehicle. It was accepted by both parties that the recovery hook originally fitted to the vehicle is damaged, and that that damage occurred either in the accident on 9 December 2017 or subsequently. Freehold Express alleges that the recovery hook has been deliberately damaged by THF on a workshop press during the LVV repairs in a “failed attempt to divert blame”.
[116] I do not accept Freehold Express’s allegation that THF deliberately damaged the recovery hook. Freehold Express provided no evidence to substantiate that unfounded allegation. Rather, what appears to have been most likely is that the recovery hook was damaged in some way during the 9 December 2017 accident. As such, if Freehold Express wished to recover the cost of replacing the recovery hook, it should have done so as part of its insurance claim for damage related to the 9 December 2017 accident.
[117] This claim is dismissed, as Freehold Express has failed to establish that the recovery hook, or the manner in which it was installed, was not of acceptable quality.

Bringing it all together

[118] To summarise the above findings, I have concluded that Freehold Express has established that the vehicle failed to comply with the guarantee of acceptable quality only in relation to the vehicle’s wheels falling off. I also uphold Freehold Express’s claim under s 8 of the CGA that the vehicle was not reasonably fit for a particular purpose that Freehold Express had made known to it, as the purpose for which the vehicle was being acquired. Specifically, this finding relates to THF's failure to arrange for the vehicle to be LVV certified prior to it being given a warrant of fitness and prior to its delivery to Freehold Express. I confirm that I have dismissed all of Freehold Express’s other claims in respect of the vehicle.

Is Freehold Express entitled to any remedy?

[119] I have already dismissed Freehold Express's claims under the Sale of Goods Act/Contract and Commercial Law Act as outside the Tribunal's jurisdiction. The remedies available in respect of a breach of ss 6 or 8 of the CGA are set out in s 18 of the CGA, which provides:
  1. 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.

[120] The particular remedy that is relevant in the present case is that set out in s 18(2)(a). Under that provision, Freehold Express was entitled to require THF to remedy any failure within a reasonable time.
[121] As I have described above, in respect of both of the breaches in which I have found in favour of Freehold Express, THF has already remedied the failure. It did so by refunding Freehold Express the cost of the defective wheels. Furthermore, it has remedied the failure to get LVV certification for the vehicle by arranging for various repairs to be carried out in accordance with the rectification schedule and arranging for LVV certification to be confirmed, which it did in June 2018.
[122] Accordingly, I conclude that, as THF has already remedied the failures in respect of which I have found against it, Freehold Express is not entitled to any further remedies.

THF's counterclaim

[123] THF counterclaimed against Freehold Express in the sum of $14,818.15, reflecting its legal fees, the fees of Loss Adjusters (SI), as well as its own time for investigation and rectification of the vehicle. As explained in the hearing, the Tribunal has no jurisdiction to consider the trader's counterclaim and it is dismissed accordingly.

J S McHerron
Adjudicator

[1] The Contract and Commercial Law Act 2017 came into force on 1 September 2017, see ss 2, 345. Part 3 of that Act replaces the Sale of Goods Act 1908, which is repealed – see s 345(1)(i). Part 3 applies to any contract of sale of goods regardless of whether it is made before or after the commencement of the Contract and Commercial Law Act: sch 1, cl 10. Therefore, it is the Contract and Commercial Law Act, rather than the Sale of Goods Act, which applies to the contract for sale of the Ford Ranger to Freehold Express.

[2] Red Eagle Corp Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].

[3] The vehicle already had a lockable rear differential installed, so the addition of a front diff locker allowed both the rear and front differentials to be locked.

[4] Specialist inspection and certification is required for light vehicles that have been modified so as to affect compliance with an applicable requirement: Land Transport Rule: Vehicle Standards Compliance 2002 (the Compliance Rule), r 6.5(1). Such inspection and certification is carried out in accordance with the LVV Code, which is incorporated by reference in the Compliance Rule.

[5] See Consumer Guarantees Act 1993, s 43(7).

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