Patel v Bluestone Cars Ltd - Reference No. 136/2020 MVD [2020] NZMVDT 115 (27 July 2020)

Last Updated: 24 August 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 136/2020 [2020] NZMVDT 115 BETWEEN MAYURIKABEN PATEL Purchaser AND BLUESTONE CARS LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S D Gregory, Assessor

HEARING at Auckland on 21 July 2020

APPEARANCES

M Patel, Purchaser

P K Bredenbeck, for the Trader

DATE OF DECISION 27 July 2020

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DECISION OF THE TRIBUNAL

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1. Mayurikaben Patel’s application is dismissed.

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REASONS

Introduction

[1] Mayurikaben Patel wants to reject the 2012 Toyota Prius she purchased for $12,850 from Bluestone Cars Ltd in February 2020, alleging that the vehicle has unacceptable noises from its front and rear, that Bluestone Cars has failed to rectify.

The issues

[2] The sole issue requiring consideration in this case is whether the vehicle has been of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA):

Has the vehicle been of acceptable quality?

[3] Section 6 of the CGA imposes on suppliers and manufacturers of consumer goods “a guarantee that the goods are of acceptable quality”. Section 2 of the CGA defines “goods” as including vehicles.
[4] The expression “acceptable quality” is defined in s 7(1) 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.

had not been used in that manner or to that extent.

[5] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in s 7(1)(a)–(e) of the CGA 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 Ms Patel’s subjective perspective.

Ms Patel’s evidence

[6] Ms Patel says that, within the first four days of purchasing the vehicle, she noticed noises from the vehicle’s right front suspension, steering column, rear of the vehicle and it brakes.
[7] Ms Patel says she then took the vehicle to Import Vehicle Compliance & Repairs Ltd (IVCR), which had performed import compliance testing on the vehicle shortly before it was sold to Ms Patel. Ms Patel says that IVCR performed no repairs, other than removing a stone from the left front brake disc. That brake disc was damaged by the stone and should be replaced. Ms Patel says that Bluestone Cars has refused to do so because it says that the stone became lodged in the brake disc after she purchased the vehicle.
[8] Ms Patel was unhappy that IVCR had not addressed her concerns and that Bluestone Cars had refused to repair the damage to the brakes caused by the lodged stone. She again contacted Bluestone Cars, which suggested that she take the vehicle to Auto Super Shoppes Botany for an independent assessment.
[9] Auto Super Shoppes Botany performed a brief assessment and found a knocking noise from the right front of the vehicle and a noise in the rear of the vehicle that it suspected was caused by the handbrake shoes rubbing on a backing plate. It considered that more detailed diagnosis was required and provided an estimate of $375 plus GST for that work. Ms Patel then contacted Bluestone Cars and rejected the vehicle.
[10] Ms Patel has continued to use the vehicle and says that the vehicle continues to make unacceptable noises, particularly when driven at low speeds.

Bluestone Cars’ response

[11] Bluestone Cars says that it is prepared to rectify any fault with the vehicle that it should have responsibility for, but Ms Patel has not proven the existence of any such fault.
[12] Bluestone Cars provided a statement from Faiyaz Raud, an automotive engineer employed by IVCR, and a tax invoice from IVCR relating to its assessments of the vehicle. Those documents show that Ms Patel first took the vehicle to IVCR on 4 March 2020, complaining of a steering knock at low speeds. IVCR test drove the vehicle and noticed a faint noise from the right front suspension. The vehicle was then booked in for a more detailed assessment, which occurred on 12 March 2020.
[13] When IVCR inspected the vehicle again on 12 March it found a grinding noise from the left front wheel, which had not been present on 4 March 2020. IVCR found that the grinding noise was caused by the stone, which had damaged the left front brake disc. IVCR then inspected the vehicle, and aside from minor play in the steering rack, which it adjusted, it found no unusual noises or faults.
[14] Bluestone Cars says that, based on the evidence from IVCR and the incomplete diagnosis from Auto Super Shoppes Botany, Ms Patel should not be entitled to reject the vehicle as she has not proven the existence of any fault justifying rejection. It also says that it should have no liability for the damage to the vehicle caused by the stone becoming lodged in the left front brakes because that damage occurred after Ms Patel purchased the vehicle.

The Tribunal’s assessment

The damaged brake disc

[15] The damaged left front brake disc, caused by a stone becoming lodged between the brake pad and disc, was not a pre-existing fault and occurred during Ms Patel’s ownership. Although Ms Patel claimed that there were stones outside IVCR’s premises that may have made their way into the left front brakes before purchase, the evidence shows that it is much more likely that the stone became lodged in the brakes at some time between 4 and 12 March 2020.
[16] A stone lodged in a brake disc causes a constant grinding noise that would be immediately noticeable, and if the stone had been lodged in the brake disc at the time of purchase as alleged by Ms Patel, she would have noticed. There was no such noticeable noise on 4 March 2020 when IVCR test drove the vehicle, and Ms Patel did not complain about the noise from the left front of the vehicle until 12 March 2020, which I consider to be compelling evidence that the stone became lodged in the brake disc at some time between 4 and 12 March 2020.

The noises from the front and rear

[17] Ms Patel has proven that the vehicle makes noises from its right front and rear (as found by Auto Super Shoppes Botany during its initial assessment), but Ms Patel has obtained no diagnosis to identify the cause or significance of those noises.
[18] The absence of a conclusive diagnosis of any fault is fatal to Ms Patel’s claim. Ms Patel purchased an eight-year-old vehicle with an odometer reading of 64,200 km at the time of sale. Such vehicles will almost inevitably have minor defects consistent with their age and mileage, including minor defects that cause noise, meaning the mere presence of unidentified noises in a vehicle of this age and mileage is not evidence of a defect that would breach the guarantee of acceptable quality. In the absence of evidence proving the cause or significance of the noises from this vehicle, I cannot be satisfied that Ms Patel has proven that the vehicle has any defect that means it is not of acceptable quality for the purposes of s 6 of the CGA.

The Tribunal’s conclusion

[19] The damage to the left front brakes was caused by a stone becoming lodged between the brake disc and brake pad during Ms Patel’s ownership. Bluestone Cars can have no liability for that damage under the CGA. Likewise, because Ms Patel has not proven that the noises from the vehicle are caused by any underlying defect that would breach the guarantee of acceptable quality, Bluestone Cars can have no liability for those alleged defects under the CGA.
[20] Ms Patel’s application is therefore dismissed.

DATED at AUCKLAND this 27th day of July 2020

B.R. Carter
Adjudicator