Vukovic v Blackwell Motors Limited - Reference No. MVD 317/2021 [2021] NZMVDT 218 (8 November 2021)

Last Updated: 1 January 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 317/2021
[2021] NZMVDT 218

BETWEEN NATAŠA VUKOVIĆ

Purchaser

AND BLACKWELL MOTORS LIMITED

Trader

HEARING at Christchurch on 21 October 2021
MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator
R C Dixon – Assessor

APPEARANCES

N Vuković, Purchaser
I Vuković, Purchaser’s daughter
S Grenfell, Director of Trader
S Walsh, Sales Manager of Trader

DATE OF DECISION 8 November 2021

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

Nataša Vuković’s application is dismissed

___________________________________________________________________

REASONS

Introduction

[1] Nataša Vuković purchased a 2016 Holden Commodore with 73,233 km on its odometer for $30,990 from Blackwell Motors Ltd on 26 March 2021. It was Ms Vuković’s dream car. However, on 4 August 2021, Ms Vuković informed Blackwell Motors that she wished to reject her vehicle. As explained in Ms Vuković’s rejection email dated 4 August 2021:

At first glance, the car was great which is why I decided to make the purchase. After a few weeks, I started discovering one problem after the other. I returned the car to you on the 10th of June asking you to fix the mould damage, the smell in the car, and constant flooding behind the passenger seat. The car was returned to me with intense fragrances after I had specified I am highly allergic to strong smells. The consequence I had to deal with following this was driving with open windows to air out the smell regardless of the cold weather. Few weeks after this, we had heavy rain and the car was flooding behind the passenger seat again and I had to return the car to you again to fix the damage.

[2] Blackwell Motors denies that Ms Vuković is entitled to reject her vehicle. It says that, apart from a small hole in the floor of the vehicle at the left rear of the vehicle, which it has plugged, it cannot find any evidence of a leak. However, Blackwell Motors confirms that if the presence of a leak can be established, it will fix it at its cost.
[3] From this background, the issue for determination by the Tribunal is whether the vehicle failed to comply with the guarantee of acceptable quality.

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

[4] 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.
[5] Relevantly, “acceptable quality” is defined in s 7 of the Act 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.

...

[6] 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.
[7] A few days after purchasing the vehicle, Ms Vuković became troubled by a smell inside the car that she had noticed from the beginning. She thought the previous owners must have been smokers and that the smell would vanish in a short time. In the month following her purchase of the vehicle, Ms Vuković cleaned the car several times herself. However, she could not stand the smell in the car and finally took it to Espresso Car Wash in Hornby on 28 May for a $20 interior vacuum. When she went to pick the car up, she was shown photos of mould under the vehicle’s carpet. Ms Vuković said that the Espresso Car Wash employee had told her the carpet was very wet and soggy under the carpet behind the passenger seat. Unfortunately, Ms Vuković did not ask for copies of the photos and was unable to produce any photographic evidence to the Tribunal.
[8] Following that, Ms Vuković kept the affected carpet in the vehicle’s boot to let it dry. She said she drove the vehicle with an open window almost non-stop to let it dry.
[9] On or around 10 June 2021, Ms Vuković’s daughter, Iva, entered the car behind the passenger seat in socks and exclaimed “my socks are wet, carpet is soaking”. Ms Vuković returned the vehicle to Blackwell Motors asking it to fix the mould damage, the smell in the car and the constant flooding behind the passenger seat. Ms Vuković was given a loan vehicle to use while her car was attended to. She said she was happy with the service provided by Blackwell Motors.
[10] A few days later, Ms Vuković went back to Blackwell Motors to see how the cleaning was going. She was surprised to see the seats had been removed from her car and a large machine was inside. She was told that the machine was drying the carpet but that no leak had been found and the vehicle had passed a water test.
[11] On or around 17 June 2021, the vehicle was returned to Ms Vuković. She noted “intense fragrances” from within the car which forced her to drive with open windows again to air out the smell, despite the winter cold.
[12] Around 24 July 2021, Ms Vuković found the car was flooding again behind the passenger seat after heavy rain. She returned the vehicle to Blackwell Motors again. Blackwell Motors agreed that the carpet behind the passenger seat was wet. On 26 July 2021 Ms Vuković spoke to a representative of Blackwell Motors and asked it to refund her the money for the car.

Blackwell Motors’ submissions

[13] On behalf of Blackwell Motors, its chief executive Steve Grenfell acknowledged that the carpet in Ms Vuković’s vehicle had been wet. When she brought the vehicle in for assessment by Blackwell Motors in June 2021, the carpet was removed and a dehumidifier (the machine that Ms Vuković saw in her vehicle) was used to remove moisture. Mr Grenfell said that Blackwell Motors spent approximately five hours attempting to find a leak in the vehicle. The only possible cause of a leak that was identified was a small hole in the left rear floor, which Mr Grenfell described as a “pinhole”. Blackwell Motors sealed this hole but Mr Grenfell said that he did not think that it had resulted in the moisture found in the car as it was so small. Mr Grenfell said it was a mystery as to how the water had got in. Five hours of testing by Blackwell Motors could not identify its source. In relation to the alleged smell in the vehicle, Mr Grenfell said that no perfume was added to the dehumidifier when it was used on the vehicle.
[14] When the vehicle was returned to Blackwell Motors, it had water in its left rear and right front floor area. Mr Grenfell said this was odd; it is unusual for water to enter the vehicle from a leak and then travel diagonally. That is because the molded undulations in the floor pan act as a barrier to the movement of water.
[15] On this second occasion, Blackwell Motors’ panel shop manager sprayed the vehicle for two hours using a high pressure hose and a steam cleaner but could not identify any leak. In addition, Blackwell Motors checked the vehicle’s air conditioning evaporation hose and pressure tested the cooling system to rule out that water was entering the vehicle through a defect in either of these systems.
[16] As a further check, Blackwell Motors sent the vehicle to an independent panel shop, Perfect Auto Body. Its report, written by Gary Williams, states as follows:

A water test was carried out on the vehicle mentioned above. The test involved the vehicle parked on level ground and the exterior flooded with a hose from the roof down, around all doors, boot, guards and bonnet area for approximately 20 minutes. Further to this test a high pressure hose was then used in the exact same areas mentioned for a period of 10 minutes. The following day the car sat in the rain for 8 hours, again with no sign of water ingress.

The conclusion is that no water penetrated from the exterior to the interior of the vehicle from either leak testing or natural rain.

[17] A further report was provided on 5 October 2021 from Perfect Auto Body’s managing director, Wayne Houghton, describing a further inspection completed on 4 October 2021 in which Mr Houghton confirmed that there was no evidence of moisture inside the cabin. This was after it had been raining solidly all day, which Mr Houghton thought would have been the ideal opportunity for water ingress. Mr Houghton also described the fact that, as Blackwell Motors had mentioned, the vehicle had been sitting in its current position for a number of weeks and he could see no signs of condensation which would have been obvious had any moisture been present, especially due to the fact that the vehicle had been fully closed up.
[18] Mr Houghton concluded “that it is highly unlikely this vehicle had any sort of water leak present. There is no evidence that would suggest otherwise”.

Tribunal’s assessment

[19] The difficulty for Ms Vuković is that, even though she has established that there has been water inside the cabin of her vehicle that has soaked into the carpets causing them to grow mould and smell, she has not produced sufficient evidence of there being any leak inside the vehicle, apart from the small leak that Blackwell Motors has fixed.
[20] Blackwell Motors has conducted a number of inspections itself and using an independent contractor and has performed all the tests that a reasonable trader would carry out in this situation. No leak (apart from the small pinhole that has been remedied) has been identified. Prior to the hearing, the Tribunal requested Ms Vuković to supply any evidence, for example photographs, of the alleged water leak. Ms Vuković was unable to provide such evidence

Conclusion

[21] Unfortunately, the Tribunal is not able to uphold Ms Vuković’s claim. She has not been able to establish that there is any defect with her vehicle to cause it to fail to comply with the guarantee as to acceptable quality.
[22] However, Blackwell Motors indicated in the hearing that if Ms Vuković can provide more evidence to establish that there is a leak in the vehicle, Blackwell Motors will repair that leak at its cost. This should reassure Ms Vuković that if any fault with her car can be established, Blackwell Motors will comply with its obligations to remedy that defect.
[23] Ms Vuković’s application is dismissed.

J S McHerron
Adjudicator