Kissell v Turners Group NZ Limited - Reference No. 152/2020 MVD [2020] NZMVDT 118 (31 July 2020)

Last Updated: 24 August 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 152/2020
[2020] NZMVDT 118

BETWEEN JOHN WILLIAM KISSELL

Purchaser

AND TURNERS GROUP NZ LIMITED

Trader

HEARING at Christchurch on 16 July 2020, further submissions received on 20 July 2020
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

R C Dixon – Assessor
APPEARANCES

J W Kissell, Purchaser (by AVL)
S Greenhalgh, Trader’s General Manager Sourcing
R Janssen, Trader’s Branch Manager
B Lucas, Trader’s General Manager Southern Region (by VMR)
B D McLeod, Witness for Trader (by phone)

DATE OF DECISION 31 July 2020

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DECISION OF THE TRIBUNAL

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Mr Kissell’s application is dismissed. However, the Tribunal expects that Turners Group NZ Ltd will honour its commitment to assist Mr Kissell if he has further problems with the vehicle.

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REASONS

Introduction

[1] John Kissell has rejected his 2010 Mitsubishi Challenger. He seeks a refund of the purchase price of $11,390 plus the cost of his air fare to collect the vehicle after he purchased it. Mr Kissell says that Turners Group NZ Ltd, which sold him the vehicle, has failed to fix a fuel injector fault that arose shortly after the date of purchase, 15 August 2019. According to Mr Kissell, Gasson Motors, the first repairer to which Turners chose to send the vehicle, failed to fix it. Mr Kissell says that the injector problem has since recurred. He claims it is an ongoing issue with the vehicle that Turners has failed to fix within a reasonable time.
[2] From this background, the following issues arise for the Tribunal to determine:

• (a) Did the vehicle fail to comply with the guarantee of acceptable quality?
• (b) If so, what remedy (if any) is Mr Kissell entitled to?

Issue one: Did the vehicle fail to comply with the guarantee of acceptable quality?

[3] Section 6(1) of the Consumer Guarantees Act 1993 (the Act) provides that “where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality”. According to s 2 of the Act, “goods” includes vehicles.
[4] “Acceptable quality” is defined in s 7 of the Act (as far as is relevant) as follows:

7. Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

...

[5] Whether a vehicle is of acceptable quality is considered from the point of view of a reasonable consumer who is fully acquainted with the state and condition of the vehicle, including any hidden defects.
[6] Mr Kissell flew to Christchurch to collect the vehicle on 20 August 2019. He drove the vehicle back to Southland where he lives. On or around 2 September 2019, approximately two weeks after he had taken delivery of the vehicle, Mr Kissell noticed the check engine light illuminated just after he had left home. He also noticed the engine was running rough and misfiring. Mr Kissell returned home and borrowed a scanner from a friend, which he used to identify whether there were any diagnostic trouble codes that had caused the check engine light to illuminate. Mr Kissell says that the scanner indicated a fault with the number 3 fuel injector.

Southland Fuel Injection and Turbocharging

[7] The following day, 3 September 2019, Mr Kissell advised Turners of the fault. He took the vehicle to a local diesel mechanic, Southland Fuel Injection and Turbocharging. Its invoice suggests that it was asked to “check for rough idling” and prepare a report for Turners recommending any repairs that were necessary, together with the estimated cost.
[8] Southland Fuel Injection and Turbocharging’s report dated 18 September 2019 appears to confirm the existence of a fault code for the number 3 fuel injector. The report also indicates “considerable buildup of carbon in inlet ports”. However, it does not, contrary to Mr Kissell’s submission, confirm that the injectors were faulty.
[9] Southland Fuel Injection and Turbocharging quoted Turners to “decarb” the head, check the valves and test the four common rail fuel injectors. Southland Fuel Injection and Turbocharging estimated the cost of this work would be $3,442.47, including GST.
[10] Southland Fuel Injection and Turbocharging’s report and quote was provided to Turners but Mr Kissell was not given a copy of it before the hearing. I gave Mr Kissell an opportunity to make any further written comment on this document after the hearing. In his further submission, Mr Kissell stated that:

In regards to this estimate, I believe Southland Fuel Injection are the most credible of the workshops that have worked on the vehicle, and them stating an injector fault on the vehicle disproves Turners believe if it is an injector fault it is fair wear and tear, as it happened within two weeks of my ownership....

[11] But, as I have already mentioned, Southland Fuel Injection and Turbocharging did not confirm there was an injector fault. It found a fault code for the number 3 injector and recommended further testing, but this is different from actually confirming an injector fault. As I will shortly describe, other technicians who have assessed the vehicle have confirmed there does not appear to be a mechanical fault with the injectors.
[12] Turners decided not to instruct Southland Fuel Injection and Turbocharging to carry out the work it recommended. Mr Greenhalgh, who was Turners’ General Manager Southern Region at the relevant time, told the Tribunal that the work recommended by Southland Fuel Injection and Turbocharging was not only expensive, but Turners was concerned that Southland Fuel Injection and Turbo Charging could not guarantee that this would resolve the issue that had been reported.

Gasson Motors

[13] It was for this reason that Turners arranged for the vehicle to be transported to Gasson Motors in Christchurch. Gasson Motors checked the vehicle for running rough. It removed the intake manifold, cleaned and refitted it. It also cleaned the exhaust gas recirculation (EGR) valve, road tested the vehicle and checked its operation. Gasson Motors found the EGR valve did not appear to be working correctly so it fitted a new one. After these repairs, Gasson Motors road tested the vehicle for a few days and stated “it ran good with no issues evident”. The cost of Gasson Motors’ repairs, $1,258.85, was met by Turners. One of Mr Kissell’s concerns about this repair was that he was without the vehicle for two months while Gasson Motors had it. It was not clear why the repair took so long as no one from Gasson Motors attended the Tribunal hearing to give evidence.

Mr Kissell experiences further problems with the vehicle

[14] Not long after getting the vehicle back, Mr Kissell reported that it started “surging” when on the open road, especially when travelling around 100 kph and when in cruise control mode. It appears that Mr Kissell was able to reduce the impact of this problem by not using cruise control.
[15] On or around 23 December 2019, Mr Kissell contacted Turners to say that his vehicle still had issues. Mr Kissell reported that Turners’ branch manager Robert Janssen, assured him that the vehicle would be fixed but, given the time of year, there could be delays. Mr Kissell said that he did not hear back from Turners and so he texted Turners again on 5 February 2020 to say that he had not heard back from anyone and that the fault was still ongoing.
[16] Mr Kissell emailed Turners again on 23 March 2020 to complain about Turners’ inaction and said that the issue was getting worse.
[17] On 24 April 2020, the check engine light illuminated again. Mr Kissell scanned the vehicle for diagnostic trouble codes and found a fault code for the number three fuel injector.
[18] On 25 April 2020, Mr Kissell emailed Mr Janssen to reject the vehicle, as follows:

Hello, driving home from work last night the engine fault light came on again, it is the code for an injector issue again. I would like to return the vehicle, and receive a refund.

[19] Mr Janssen responded and said that he had attempted to get Gasson Motors to respond to Mr Kissell directly in respect of his earlier complaint.
[20] By this stage, the vehicle had travelled approximately 255,000 km, some 14,000 km more than its odometer reading after having been repaired by Gasson Motors in September 2019.

McLeod Diesel

[21] Turners asked Mr Kissell to take the vehicle to McLeod Diesel in Invercargill to investigate the issue further. Mr Kissell took the vehicle to McLeod Diesel on 4 May 2020. He told the Tribunal that while he was taking the vehicle to McLeod Diesel the check engine light came on again. This was the third time this had happened since Mr Kissell had purchased the vehicle about nine months earlier.
[22] McLeod Diesel started work on the vehicle on 7 May 2020. It scanned the vehicle and found a fault code arose in respect of injector number three. It cleared the codes, test drove the vehicle and found that the same fault reappeared. McLeod Diesel swapped the number one and number three injectors so it could target the fault to either one of those injectors or to the controlling injector. It coded the injectors to the appropriate cylinders after swapping them. After the injectors were swapped, McLeod Diesel took the vehicle on several test drives and found that the vehicle did not fault again.
[23] We spoke with Brad McLeod, the director of McLeod Diesel, at the hearing. He indicated that McLeod Diesel test-drove the vehicle at least 30 km after swapping the injectors. Mr McLeod said that he did not experience any engine surging as reported by Mr Kissell. Mr McLeod confirmed that following the work done by McLeod Diesel, he was confident that the vehicle did not have a mechanical fault with its injectors. However, it remains possible that the vehicle has a wiring fault or engine control unit fault. In Mr McLeod’s view the vehicle needs to be driven further to see if the fault recurs, following which it should be brought back to McLeod Diesel. McLeod Diesel had been hopeful that Mr Kissell would carry out this further driving, but he had been unwilling to collect the vehicle.
[24] Mr Greenhalgh said that Turners is willing to assist further if Mr Kissell experiences further faults with his vehicle. However, the current position, according to the technical evidence, and as confirmed by the Tribunal’s Assessor Mr Dixon, is that there is no clear evidence that anything is still wrong with the vehicle.

Conclusion

[25] While this result will no doubt be unsatisfactory to Mr Kissell, the Tribunal is constrained by the technical evidence to conclude that although this vehicle has previously been faulty, there is no evidence of any current fault.
[26] Accordingly, as matters stand, Mr Kissell has not established any ongoing failure to comply with the guarantee of acceptable quality.
[27] Despite this conclusion, it is clear that Mr Kissell has experienced rough running from the vehicle’s engine and that there is a possible outstanding fault that needs further diagnosis. It is important to add, however, that this is a reasonably old and high mileage vehicle that has now travelled more than a quarter of a million kilometres. Further, Mr Kissell has driven the vehicle for approximately 15,000 since he purchased it, nearly a year ago. That said, I am concerned about the delays taken by various repairers to identify and rectify this matter.
[28] I trust that if Mr Kissell has further problems with his vehicle that these will be addressed more promptly. I also trust that Turners will honour the commitment that its representatives, led by Mr Greenhalgh, made during the hearing of this matter to assist Mr Kissell to get to the bottom of what may be causing his vehicle to record intermittent fault codes relating to its fuel injector.
[29] Accordingly, while it is not possible to uphold Mr Kissell’s claim, I trust that the parties will work together to diagnose and rectify any further problem, whatever it may be caused by.

J S McHerron
Adjudicator