Bava v Mars Motors Ltd - Reference No. MVD 037/2020 [2020] NZMVDT 59 (26 May 2020)

Last Updated: 19 June 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 037/2020 [2020] NZMVDT 59 BETWEEN JASON BAVA Purchaser AND MARS MOTORS LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S D Gregory, Assessor

HEARING at Auckland on 19 May 2020

APPEARANCES

J Bava, Purchaser

Y Wang, for the Trader

DATE OF DECISION 26 May 2020

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DECISION OF THE TRIBUNAL

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1. Jason Bava’s application is dismissed.

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REASONS

Introduction

[1] Jason Bava wants to recover the cost of replacing the alternator on the 2007 Lexus IS350 he purchased from Mars Motors Ltd in October 2019. Mr Bava says that the faulty alternator means that the vehicle was not of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA). Mars Motors says that the alternator fault occurred too long after purchase for it to have liability under the CGA.

The issues

[2] The sole issue requiring consideration 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.

[5] Mr Bava first noticed electrical issues with the vehicle on 15 January 2020, when the vehicle’s electric windows and power steering were affected by a lack of power. Mr Bava purchased a replacement battery, but the fault returned. Mars Motors declined to assist, so Mr Bava had the vehicle assessed by Lexus of Auckland City, which found that the vehicle’s alternator required replacement.
[6] Mr Bava alleges that the faulty alternator means that the vehicle has not been of acceptable quality for the purposes of s 6 of the CGA, because it was not as free of defects and as durable as a reasonable consumer would consider acceptable.
[7] I do not agree. The protections in the CGA are not indefinite and last only as long as is reasonable in the circumstances of each case, taking account of 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 Bava’s subjective perspective.
[8] Taking account of the factors set out in s 7(1)(f)–(j) of the CGA, I am satisfied that the vehicle was as free of minor defects and as durable as a reasonable consumer would consider acceptable. Mr Bava paid $16,475 for a 12-year-old vehicle with an odometer reading of approximately 58,000 km. The alternator failed more than three months after purchase, by which time Mr Bava had driven approximately 4,000 km in the vehicle.[1] Given the realistic expectations a consumer must have as to the quality and durability of a vehicle of this age and mileage, and that fact that replacement of a failed alternator is the type of maintenance that can arise from time to time in such a vehicle, I am satisfied that the vehicle has been of acceptable quality.
[9] In reaching this conclusion, I acknowledge the expense Mr Bava incurred when replacing the alternator. He says that he was convinced by Lexus of Auckland City that he should only replace the alternator with genuine manufacturer’s parts. He agreed, and Lexus of Auckland City performed that repair at a repair cost of $2,348.10.
[10] The repair need not have cost so much. Although Mr Bava says that he was told by Lexus of Auckland City that aftermarket parts should not be used, Mr Gregory, the Tribunal’s Assessor, advises that an aftermarket alternator was an entirely suitable repair and that Mr Bava could expect an aftermarket alternator to be as durable as an alternator recommended by the manufacturer. Mars Motors provided two estimates for replacing the alternator with an aftermarket part, one for $790.63, the other for $1,161.50 – which Mr Gregory considers to be reasonable estimates.
[11] Accordingly, although Mr Bava has spent a significant amount of money replacing the alternator, I do not consider that cost he incurred was an accurate reflection of the severity of the defect and I am not satisfied that he should be entitled to recover that cost from Mars Motors. His application is therefore dismissed.

DATED at AUCKLAND this 26th day of May 2020

B.R. Carter
Adjudicator

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[1] The vehicle’s odometer reading was approximately 58,000 km at the time of sale and 62,952 km when the alternator failed.