Hattingh v Cars and Commercials NZ Ltd - Reference No. MVD 081/2021 [2021] NZMVDT 108 (17 June 2021)

Last Updated: 23 July 2021

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 081/2021 [2021] NZMVDT 108 BETWEEN ZANDER HATTINGH Applicant AND CARS AND COMMERICALS NZ LTD Respondent

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Gregory, Assessor

HEARING at Tauranga on 8 June 2021

APPEARANCES

Z Hattingh, Applicant (by audio-visual link)

C Copping, for the Respondent

DATE OF DECISION 17 June 2021

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DECISION OF THE TRIBUNAL

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A Cars and Commercials NZ Ltd shall, within 10 working days of the date of this decision:

(a) rectify the leaking brake vacuum booster; and
(b) pay $109.25 to Zander Hattingh.

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REASONS

Introduction

[1] Zander Hattingh considers that the 2009 Volkswagen Golf GTI he purchased for $16,990 from Cars and Commercials NZ Ltd in October 2020 has not been of acceptable quality because its brake vacuum booster is leaking. He has applied to the Tribunal for orders that Cars and Commercials NZ rectify the faulty brake vacuum booster. Cars and Commercials NZ denies liability and says that its mechanics have assessed the brake vacuum booster and found no fault.

Relevant background

[2] Mr Hattingh purchased the vehicle on 17 October 2020 and says that the vehicle has had a constant hissing noise from the brake pedal since, which only goes away when the brake pedal is pushed.
[3] There is conflicting evidence on the existence of any fault:

• (a) The vehicle was first assessed by Automotive Solutions Hamilton on 12 February 2021, which considered that the brake vacuum booster required replacement at an estimated cost of $1,650.83.
• (b) The vehicle was then assessed by Premier Automotive - Cars and Commercials NZ’s preferred mechanic - which considered that the vehicle was not faulty.
• (c) Mr Hattingh then had the vehicle assessed by SD Sports & Classics Ltd in Hamilton, which considers that the brake vacuum booster requires replacement, at an estimated cost of $1,767.71.
• (d) After the hearing, Mr Hattingh provided a video, which showed that the vehicle made a clearly audible hissing noise from the brake vacuum booster, that only ceased when the brake pedal was pushed.

[4] Mr Hattingh says that the brake vacuum booster is leaking, and points to the assessments conducted by Automotive Solutions Hamilton and SD Sports & Classics and the video he provided after the hearing in support of that submission.
[5] Cars and Commercials NZ considers that the brake vacuum booster is not faulty. It says that the vehicle has been assessed by Premier Automotive, which performed a vacuum test and smoke test and found no evidence of a leak. Premier Automotive considered that the noise from the vehicle’s brake system is normal and the vehicle has no fault with its brake vacuum booster. Cars and Commercials NZ also says that Chris Hurley from Premier Automotive has seen the video provided by Mr Hattingh and considers that the video does not prove that the brake vacuum booster is faulty.
[6] Chris Copping from Cars and Commercials NZ also showed two videos during the hearing, which both showed that Volkswagen Golf GTI’s make a hissing noise under braking. Mr Copping also noted that the audio on the video provided by Mr Hattingh was not particularly clear.

The issues

[7] Against this background, the issues requiring the Tribunal’s consideration in this case are:

• (a) Has the vehicle been of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA)?
• (b) What remedy is Mr Hattingh entitled to under the CGA?

Issue 1: Has the vehicle been of acceptable quality?

[8] 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.
[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.

[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 CGA as modified by the factors set out in s 7(1)(f)-(j), from the perspective of a “reasonable consumer”.

The Tribunal’s assessment

[11] Mr Gregory, the Tribunal’s Assessor, considers that the video provided by Mr Hattingh shows that the vehicle has a clearly audible and abnormal hissing or sucking noise from its brake vacuum booster, which is different from the noise the brake vacuum booster should normally make. Mr Gregory advises that the brake vacuum booster contains a transfer valve, which transfers vacuum from one side of the brake booster to the other when the brake pedal is depressed. Mr Gregory says that the abnormal noise shown in the video is likely caused by a minor leak within the transfer valve, which is allowing a transfer of vacuum from one side of the brake booster to the other when the brake pedal is not depressed. Mr Gregory says that no vacuum transfer should occur when the brake pedal is not depressed.
[12] Mr Gregory advises that the vehicle will fail a warrant of fitness inspection because of that leak. The warrant of fitness requirements for brakes are set out in part 8-1 of the In-service Certification (WoF and CoF) Vehicle Inspections Requirements Manual for general vehicles (the VIRM). Under s 8-1-12 of the VIRM, brakes will fail a warrant of fitness assessment where the brake vacuum booster is leaking.
[13] Mr Gregory also advises that the leak may not have been detected by Premier Automotive because a smoke test only tests for external vacuum leaks, whereas the leak is likely coming from the transfer valve, which is within the brake booster itself. Mr Gregory says that any transfer valve leak present would not have been found during a vacuum test because the diaphragm in the brake vacuum booster is not torn or otherwise faulty, so the operation of the brake vacuum booster will still be near normal.
[14] Although it is likely that the brake vacuum booster is currently working at an acceptable level, Mr Gregory advises that the brake vacuum booster requires repair because the leaking transfer valve will eventually fail, affecting the operation of the brakes.
[15] Based on the evidence presented by both parties and the advice I have received from Mr Gregory, I am satisfied that the vehicle’s brake vacuum booster is leaking and will therefore fail a warrant of fitness inspection. That defect was present from the date of purchase, so the vehicle has not been of acceptable quality for the purposes of s 6 of the CGA because it was not as free of minor defects or as durable as a reasonable consumer would consider acceptable.

Issue 2: What remedy is Mr Hattingh entitled to under the CGA?

[16] The relevant remedies are set out in s 18 of the CGA, which provides:

18. 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.

[17] Under s 18(2)(a) of the CGA, Mr Hattingh is entitled to have the leaking brake vacuum booster rectified within a reasonable time. Under s 18(4) of the CGA, he is also entitled to recover the $109.25 cost of having that defect diagnosed by SD Sports & Classics, as that cost is a reasonably foreseeable consequence of the vacuum leak and was only incurred after Cars and Commercials NZ denied the existence of any fault.
[18] The Tribunal therefore orders that Cars and Commercials NZ shall, within 10 working days of the date of this decision:

• (a) rectify the leaking brake vacuum booster; and
• (b) pay $109.25 to Mr Hattingh.
  

DATED at AUCKLAND this 17th day of June 2021

B.R. Carter
Adjudicator