|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Motor Vehicles Disputes Tribunal of New Zealand |
Last Updated: 23 July 2021
|
BETWEEN LAURENCE JAMES BROCKLISS
Applicant
AND SHEAFF VEHICLES LTD
First Respondent
AND GREAT LAKE MOTOR DISTRIBUTORS LTD
Second Respondent
AND TAURANGA SSANGYONG AND LDV LTD
Third
Respondent
|
|
AND VEHICLE LOGISTICS LTD
Fourth Respondent
|
|
|
|
MEMBERS OF TRIBUNAL
|
|
B R Carter, Barrister – Adjudicator
|
|
S Gregory, Assessor
|
|
|
|
HEARING at Tauranga on 8 June 2021
|
|
|
|
|
|
|
|
APPEARANCES
|
|
Laurence Brockliss and Lynda Brockliss for the Applicant
J Cossill, Witness for the Applicant
|
|
M Sheaff for the First Respondent
N Hodgson for the Second Respondent
A D Worsnop for the Third Respondent
M Alexander and M Piacun for the Fourth Respondent
|
|
DATE OF DECISION 22 June 2021
|
|
|
_________________________________________________________________
DECISION OF THE TRIBUNAL
_________________________________________________________________
_________________________________________________________________
REASONS
Introduction
[1] Laurence Brockliss wants to reject the 2017 SsangYong Rexton G4 he purchased for $69,780[1] in December 2017. Mr Brockliss he is most concerned about the vehicle’s front brakes, which he says have been faulty throughout his ownership, but alleges that the vehicle has also had a faulty seatbelt and towbar wiring.
[2] Mr Brockliss initially brought this claim against Tauranga SsangYong and LDV Ltd, which did not sell the vehicle to him but has performed some of the relevant repairs and is the current SsangYong franchisee in Tauranga, Great Lake Motor Distributors Ltd, which is the New Zealand importer and distributor of SsangYong vehicles and Vehicle Logistics Ltd, trading as Takanini SsangYong, which has also performed repairs on the vehicle.
[3] I have also joined Sheaff Vehicles Ltd as a party to this claim. Sheaff Vehicles sold the vehicle to Mr Brockliss and I consider that it had sufficient connection to these proceedings to justify joining it as a party to enable the Tribunal to determine effectively and completely this application.
[4] The four Respondents all deny liability.
Relevant background
The Applicant’s evidence
The brakes
[5] The vehicle was new when it was purchased by Mr Brockliss in December 2017. Mr Brockliss and his wife Lynda Brockliss say that they first experienced problems with the vehicle’s brakes, particularly a shudder through the steering wheel under braking, when the vehicle’s odometer reading was about 6,000 km.
[6] In July 2018, seven months after purchase and when the vehicle’s odometer reading was only 9,926 km, the front brake pads and brake discs were replaced by Tauranga SsangYong and LDV (which by that time had taken over the Tauranga SsangYong franchise from Sheaff Vehicles). Those replaced brake discs were then machined by Tauranga SsangYong and LDV in September 2019, when the vehicle’s odometer reading was 37,217 km. Mr Brockliss says that he had noticed a shudder from the brakes about 3,000 km to 4,000 km earlier.
[7] Mr and Mrs Brockliss say that they continued to experience problems with the front brakes and in January 2020 Takanini SsangYong machined the front brake discs again. Mr Brockliss says that the brake problems continued, and in October 2020 - when the vehicle’s odometer reading was 62,182 km - the front brake discs and pads were replaced.
[8] Mr and Mrs Brockliss say the vehicle’s brakes continued to shudder, and in December 2020 they took the vehicle to Takanini SsangYong, which discovered that the front wheel hubs were slightly outside of the manufacturer’s specifications. Takanini SsangYong replaced the front wheel hubs and brake discs. A Repair Invoice dated 22 December 2020 records that Takanini SsangYong considered that the front wheel hubs had caused “wear/warpage” to the front brake discs.
The front passenger seatbelt
[9] The vehicle’s front passenger seatbelt made an intermittent rattling noise from shortly after purchase. Tauranga SsangYong initially attempted to rectify the issue by fitting foam to the seatbelt bracket, which did not rectify the fault, so in May 2019 it replaced the seatbelt. Mr Brockliss says that this repair has rectified the rattling noise from the seat.
The towbar wiring
[10] Mr Brockliss paid $500 to have a towbar installed by Sheaff Vehicles when he purchased the vehicle. He experienced no problem with that towbar or its wiring but says that he was advised by Tauranga SsangYong and LDV in September 2019 that the towbar wiring should be replaced, as the wiring kit installed had been superseded and may cause problems with the vehicle’s control modules. Mr Brockliss accepted Tauranga SsangYong’s recommendation and paid $639.10 to have the wiring kit replaced.
[11] Mr and Mrs Brockliss say that the ongoing brake problems, faulty seatbelt and towbar wiring mean the vehicle has not been of acceptable quality.
The Respondents’ reply
[12] Sheaff Vehicles expressed sympathy for Mr and Mrs Brockliss’ situation but submitted that it should have no liability for the vehicle’s defects as it was not involved in any of the diagnosis or repairs performed, as it ceased being a SsangYong franchisee shortly after the vehicle was sold.
[13] Great Lake Motor Distributors submitted that the vehicle has been of acceptable quality and considered that many of the braking problems experienced by Mr Brockliss may have been caused by Mr Brockliss’ use of the vehicle. The other respondents – Tauranga SsangYong and LDV and Takanini SsangYong – gave evidence as to the repairs performed on the vehicle, which largely coincided with the evidence from Mr and Mrs Brockliss. Perhaps the key point of difference was that the various SsangYong entities denied that there was any inherent underlying defect with the vehicle’s front brakes.
The issues
[14] 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) Is Mr Brockliss able to reject the vehicle?
- (c) What remedy is Mr Brockliss entitled to under the CGA?
Issue 1: Has the vehicle been of acceptable quality?
[15] 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.
[16] 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.
[17] 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 Mr Brockliss’ subjective perspective.
The Tribunal’s assessment
[18] The vehicle has not been of acceptable quality for the purposes of s 6 of the CGA for two reasons.
[19] First, its front passenger seatbelt required replacement shortly after sale because of an intermittent rattle. In my view, a reasonable consumer would not expect such a defect to be present in a near new $69,780 vehicle.
[20] Second, the vehicle has had a string of front brake problems since shortly after purchase, with the brake pads and/or discs replaced on three occasions, the front brake discs machined twice, and the front wheel hubs replaced once. Although the evidence does not prove that each of these brake problems is connected, I am satisfied that the vehicle’s cumulative brake problems mean that it has not been of acceptable quality because it has not been as free of minor defects or as durable as a reasonable consumer would consider acceptable.
[21] Great Lake Motor Distributors suggested that the brake problems may have been caused by Mr Brockliss’ use of the vehicle, particularly his towing of a caravan. Although I cannot completely exclude the possibility that some of this vehicle’s brake problems were, at least in part, caused by towing a caravan, the modern caravan towed by Mr Brockliss was easily within the allowable weight for this vehicle and there is no evidence to show that Mr Brockliss’ use of the vehicle was inconsistent with the manner in which a reasonable consumer would have used it.
[22] The towbar wiring does not breach the guarantee of acceptable quality. Although Mr and Mrs Brockliss were persuaded to change the towbar wiring by Tauranga SsangYong and LDV, the towbar wiring installed at the time of purchase does not appear to have been faulty. Mr Gregory, the Tribunal’s Assessor, advises that the evidence presented shows that wiring initially installed in the vehicle was not faulty and would only become a problem if the trailer (or caravan) lights or connection plug were submerged in water, which may have then led to electrical problems.
[23] Consequently, although the towbar wiring kit installed at the time of purchase has been superseded by a superior wiring kit, it nonetheless appears to have been of acceptable quality.
Issue 2: Is Mr Brockliss able to reject the vehicle?
[24] Mr Brockliss wants to reject the vehicle because of the recurring brake problems and the other issues he has had with the vehicle.
[25] Mr Brockliss cannot reject the vehicle. The front passenger seatbelt fault was minor and easily repairable and was fixed by Tauranga SsangYong and LDV rectified more than two years ago, so Mr Brockliss cannot now reject the vehicle due to that fault. Further, any right that Mr Brockliss may have had to reject the vehicle due to the brake problems has now been lost because he did not exercise that right within a reasonable time.
[26] The law relating to the loss of the right to reject goods is set out in s 20 of the CGA, which states:
20 Loss of right to reject goods
(1) The right to reject goods conferred by this Act shall not apply if—
(a) the right is not exercised within a reasonable time within the meaning of subsection (2); or
(b) the goods have been disposed of by the consumer, or have been lost or destroyed while in the possession of a person other than the supplier or an agent of the supplier; or
(c) the goods were damaged after delivery to the consumer for reasons not related to their state or condition at the time of supply; or
(d) the goods have been attached to or incorporated in any real or personal property and they cannot be detached or isolated without damaging them.
(2) In subsection (1)(a), the term reasonable time means a period from the time of supply of the goods in which it would be reasonable to expect the defect to become apparent having regard to—
(a) the type of goods:
(b) the use to which a consumer is likely to put them:
(c) the length of time for which it is reasonable for them to be used:
(d) the amount of use to which it is reasonable for them to be put before the defect becomes apparent.
(3) This section applies notwithstanding section 170 of the Contract and Commercial Law Act 2017.
[27] Under s 20(1)(a) of the CGA, Mr Brockliss will lose the right to reject the vehicle if he has not exercised that right within a reasonable time. For the purposes of s 20(1)(a) of the CGA, a "reasonable time" is a period from the time of supply of the goods in which it would be reasonable for the defect to become apparent, having regard to the factors set out in s 20(2)(a)–(d) of the CGA.
[28] In Nesbit v Porter, the Court of Appeal observed that:[2]
... A reasonable time under s 20 must accordingly be one which suffices to enable the consumer to become fully acquainted with the nature of the defect, which, where the cause of a breakage or malfunction is not apparent, the consumer can be expected to do by taking the goods to someone, usually and preferably the supplier, for inspection.
[29] Mr Brockliss first became aware of a shudder from the vehicle’s brakes in 2018, when its odometer reading was approximately 6,000 km. Despite continuing problems with the brakes, and repair attempts by Tauranga SsangYong and LDV and Takanini Ssangyong when the vehicle’s odometer reading was 37,217 km and 62,182 km, Mr Brockliss did not reject the vehicle until March 2021, by which time the vehicle’s odometer reading was approximately 75,000 km.
[30] There were no doubt reasons for this delay, but the law imposes an obligation on Mr Brockliss to exercise his right to reject the vehicle with reasonable haste once he became acquainted with the nature of the vehicle’s defects, and I am satisfied that, applying Nesbit v Porter, Mr Brockliss took too long, and has now lost that right.
[31] Mr Brockliss may consider this conclusion harsh, but the Court of Appeal in Nesbit v Porter considered that there are good policy grounds for requiring the right to reject goods to be exercised within a reasonable time. The Court of Appeal noted:[3]
... the Court should not lose sight of the burden which may be imposed upon a supplier by a lengthy delay in rejecting the goods during a time when their value is likely to depreciate, particularly where depreciation is increased by further usage, as it is for motor vehicles.
[32] Such a situation arose here. Mr Brockliss drove approximately 69,000 km over more than two years after the first braking problem was identified before he rejected the vehicle. The vehicle will have depreciated significantly in value because of this use. Given the length of the delay in rejecting the vehicle and the extent to which the vehicle has been used, I consider that Mr Brockliss took too long to exercise any right he may have had to reject the vehicle.
Issue 3: What remedy is Mr Brockliss entitled to under the CGA?
[33] The relevant remedies are set out in s 18 of the CGA, which provides:
- 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.
[34] As set out above, Mr Brockliss has lost any right he may have had to reject the vehicle, so he is not entitled to that, or any other, remedy under the CGA.
[35] The front passenger seat belt was replaced by Tauranga SsangYong and LDV at Mr Brockliss’ request and that repair has rectified the fault, so Mr Brockliss is not entitled to any further remedy under the CGA for that fault.
[36] Mr Brockliss remains concerned that the vehicle’s braking problems are all connected and that the underlying cause has not been rectified, but the evidence presented does not prove that the vehicle’s braking problems are continuing. Mr Brockliss has driven the vehicle between 8,000 km and 9,000 km since the wheel hubs and front brake discs were replaced by Takanini SsangYong in December 2020 and he reports that there has been no ongoing brake shudder from the vehicle. Based on that evidence, the only conclusion I feel able to draw is that the vehicle is currently not faulty.
[37] Mr Brockliss is not therefore entitled to any further remedy under the CGA and his claim is dismissed, although he remains able to bring a further claim to the Tribunal should the vehicle’s brake problems recur.
DATED at AUCKLAND this 22nd day of June 2021
B.R. Carter
Adjudicator
[1] Including accessories and on road costs.
[2] [2000] NZCA 288; [2000] 2 NZLR 465 (CA) at [39].
[3] At [42].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZMVDT/2021/110.html