Patterson v Graeme Arthur Alloo Ta Acmotorsport - Reference No. MVD 067/2021 [2021] NZMVDT 95 (1 June 2021)

Last Updated: 26 October 2021

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 067/2021
[2021] NZMVDT 95
UNDER APPEAL

BETWEEN ANDREW PHILIP PATTERSON

Purchaser

AND GRAEME ARTHUR ALLOO TA ACMOTORSPORT

Trader

HEARING at Christchurch on 13 May 2021
MEMBERS OF TRIBUNAL

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

APPEARANCES

A P Patterson, Purchaser
L Patterson, Purchaser’s wife and witness
R C Perrin, Purchaser’s witness
G A Alloo, Trader

DATE OF DECISION 1 June 2021

___________________________________________________________________

DECISION OF THE TRIBUNAL

___________________________________________________________________

1. Andrew Patterson’s rejection of his Kia Sorento is upheld.
2. Graeme Alloo must pay Mr Patterson $10,561.38 no later than 16 June 2021.

100. Once the amount in B. has been paid in full, Mr Patterson must make the vehicle available for Mr Alloo to collect at Mr Alloo’s cost, if any.

___________________________________________________________________

REASONS

Introduction

[1] Andrew Patterson wanted a vehicle that would be suitable for towing a horse float or caravan and could otherwise be used as his wife’s “daily driver”. He saw a 2009 Kia Sorento that was listed on Trade Me by Graeme Alloo, a registered motor vehicle trader, trading under the name ACMotorsport. One of the things which appealed to Mr Patterson about the vehicle, as it was advertised, was its newly reconditioned engine.

The advertisement

[2] Mr Alloo advertised the vehicle as follows:

2009 Kia Sorento 4WD (147KM) (Recon Engine done 500 KM)

Brand New recon engine

Bearings. Rings, Hone, timing kit,

Head refurbished, full seal and gasket set, injectors serviced.

Brand new crankshaft water pump oil pump and thermo

Engine will have done 500 km upon sale.

...

New Turbo Catridge

...

Tow bar max 2800kg tow

...

All work been completed to a high standard

Pistons, Rings and Bearings (Short block) and Head recond and fitted by Qualified engine builder

Background to the present dispute

[3] It was Mr Patterson’s first diesel vehicle so, in some ways, he did not entirely know what to expect from it, in terms of its usual operating characteristics. The vehicle seemed to run fine at first, apart from a little black smoke when accelerating, but Mr Patterson thought it was a little lacking in power when cold.
[4] At the hearing, Lisa Patterson, Mr Patterson’s wife, said that when she was driving on the flat with a horse float attached, the vehicle seemed underpowered. She said that despite pressing down on the accelerator pedal more and more, the vehicle seemed to keep slowing down.
[5] About 10 months after purchasing the vehicle, and having travelled approximately 16,000 km in it, Mr Patterson decided to take it to a mechanic for a tune up. He said he wanted to avoid his caravan getting covered in soot when he took it on the family’s Christmas holiday. Soon afterwards, the mechanic advised Mr Patterson that the vehicle’s engine had significant problems. Within days of getting the mechanic’s report, Mr Patterson had decided to reject the vehicle. He sought a full refund of the purchase price of $8,500 from Mr Alloo.
[6] Mr Alloo does not deny that the vehicle’s engine may have problems. However, his primary concern, as articulated to Mr Patterson and in his submissions to the Tribunal, is that he has not been given an adequate opportunity to have the vehicle tested, and to remedy any fault himself, as he understands the Consumer Guarantees Act 1993 (the Act) to require.
[7] 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, was it a failure of a substantial character?
• (c) What, if anything, is the appropriate remedy?

Issue 1: Did the vehicle fail to comply with the guarantee of acceptable quality?

[8] 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.
[9] 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.

...

[10] 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.
[11] Despite Mrs Patterson’s comments at the hearing about the vehicle lacking power, it appears that up until December 2020, Mr Patterson himself “love[d] the car” and thought that “apart from the smoke it [was] going fine”. That is what Mr Patterson said in a text to Mr Alloo on 5 December 2020. In that text, Mr Patterson also asked whether the vehicle’s diesel injectors had been sent away to be “done” or whether Mr Alloo had “just fit[ted] new seals etc”. Mr Patterson relayed to Mr Alloo his mechanic’s question about whether the injectors had been sent to Diesel Injection Services and whether they needed recoding to fix the smoke problem.
[12] Mr Alloo replied:

Yes injectors were tested but they can fail common rail injectors are fickle items and replace them if needed it will make the engine last ....

[13] Interestingly, there was a question beneath the Trade Me listing for the vehicle from a prospective purchaser who asked what had caused the engine to fail and need a rebuild. Mr Alloo’s answer to that question suggested that the injectors may have been at fault:

Sorentos need the diesel injectors washer replaced every 60,000 km this was not done so it failed ... So engine is brand new now totally rebuilt with new parts. Buy the confidence.

[14] However, when the Tribunal’s Assessor, Mr Dixon, asked Mr Alloo why the engine needed to be rebuilt, Mr Alloo did not mention anything about the injectors. Rather, he told the Tribunal that there had been a slight knock in the engine.
[15] Rhys Perrin, of Diverse Mechanical, inspected the vehicle for Mr Patterson. Mr Perrin investigated the claimed issues of black smoke under acceleration and lack of power when cold. Mr Perrin scanned the car and found a fault code relating to the exhaust gas recirculation (EGR) system. On further testing, Mr Perrin found multiple leaks from the EGR gaskets and the EGR solenoid valve. He ordered new gaskets and a new valve, which he installed on 11 December 2020. However, this did not stop the vehicle producing black smoke or address its lack of power. On further investigation, Mr Perrin found that the engine was “breathing heavy”.[1]
[16] Mr Perrin’s report dated 13 December 2020 said that he considered the engine’s heavy breathing to be “caused by worn cylinder linings, piston rings, pistons etc”. Mr Perrin described the engine as “mechanically worn out by the excessive crank case pressure at the breather pipe with excessive residue going back into the intake system”.
[17] Mr Perrin carried out a compression test, which gave the following results:

Cylinder	PSI
1	312
2	300.8
3	289.3
4	302

[18] These compression readings were all considerably lower than the manufacturer’s specified compression pressure of 426.41 PSI.
[19] Mr Perrin also conducted a leakdown test, which showed:

Cylinder	Leakage
1	53%
2	50%
3	71%
4	54%

[20] Mr Perrin advised that the compression and leakdown tests confirmed the condition of the engine was unsatisfactory.
[21] In addition, Mr Perrin found stretched and broken bolts in the cylinder head, which he said called into question the quality of the workmanship in the engine rebuild carried out prior to Mr Patterson’s purchase of the vehicle.
[22] Mr Perrin did not consider that there was any need to get the injectors tested, given the excessive crank case pressure he observed, which was blowing oil residue into the intake system, which was then being put through the combustion process caused by the excessive blow-by shown in the leakdown results. Mr Perrin said that this was causing the black smoke and the low power of the vehicle and also explained the moderate oil usage that had been reported by Mr Patterson.
[23] Mr Perrin queried whether compression and leakdown tests had been carried out after the engine had been rebuilt and before it was sold to Mr Patterson. He said that it would have been best practice to perform such tests to confirm that the vehicle met the manufacturer’s specifications prior to its sale to Mr Patterson. Mr Perrin said that his tests confirm that the engine does not meet manufacturer’s specifications.
[24] In his initial report, Mr Perrin observed the engine timing was out of specification, but before the hearing he retracted those comments after reinspecting the engine setup more closely.
[25] Mr Patterson messaged Mr Alloo and provided him with Mr Perrin’s report and photographs on or around 14 December 2020. Mr Patterson rejected the vehicle at the same time and asked for a full refund of the purchase price. This was apparently after Mr Alloo offered to Mr Patterson to install another reconditioned motor into the vehicle.
[26] On 17 December 2020, Mr Alloo wrote to Mr and Mrs Patterson to express his concern that the vehicle’s engine had been dismantled before he had been asked to get the engine looked at. Mr Alloo was also concerned that he had not been told there was any problem with the vehicle since the date of purchase, some 10 months earlier. Mr Alloo said that he had never been asked to look at the vehicle and that Mr Patterson’s first course of action should have been to contact him to discuss the issue, rather than get the engine pulled apart. Mr Alloo referred to the requirement under the Act to give the seller the first opportunity to repair the vehicle within a reasonable time before exercising the self-help remedy to have the failure repaired elsewhere.
[27] At the end of Mr Alloo’s letter, he stated:

I suggest that the first step is that engine is checked by a qualified engine rebuilder to establish whether the engine should be reassembled and put back to its original running state.

Please advise whether you will make these arrangements, or alternatively arrange to get the vehicle and parts to me so that I can get this underway.

[28] Mr Patterson took Mr Alloo’s statement as an invitation to get the vehicle’s engine assessed by a qualified engine rebuilder. He instructed Mr Perrin to arrange for the motor to be removed from the vehicle and sent to Revolution Automotive Engineering, where engine specialist Shane Brazendale assessed it. Mr Perrin also purchased engine rebuild specifications for the Sorento for Mr Brazendale.
[29] Revolution Automotive Engineering produced an engine data sheet on 14 January 2021 which found that:

• the piston to cylinder clearance was slightly too high;
• the big end journals were “in specification”;
• the piston ring gaps were too high for the top ring and the oil ring, but the second ring was within specification;
• there was a stripped bolt in the front cover.
• the engine has had head gasket leakage in multiple areas which has been going on for quite a while;
• the block surface is unserviceable and out of specification;
• head gasket leakage has caused coolant to enter the cylinder bores causing staining/rusting which has affected the piston rings’ ability to seal properly;
• the cylinder block surface should have been machined at the time of the engine rebuild;
• the cylinder block will need surface machining and reboring as part of the next rebuild;
• the state of the injectors and pump are unknown.

Tribunal’s assessment

[30] Mr Dixon did not consider that the piston clearance and piston ring gaps were “that badly out”. More concerning to him, however, is the distortion in the cylinder bores, as reflected in the blow-by observed by Mr Perrin, as well as the poor readouts from his leakdown tests.
[31] A particular concern of Mr Dixon was that the surface of the cylinder block is out of specification. It appears that this should have been, but was not, machined at the time of the engine rebuild. Indeed, none of the evidence supplied by Mr Alloo relating to the rebuilding of the engine prior to the sale of the vehicle to Mr Patterson suggested that its cylinder block surface had been machined. This appears to have caused the head gasket leakage observed by Mr Brazendale, which has caused coolant to enter the cylinder bores causing them to be stained and rusted, and thereby affecting the piston rings’ ability to seal properly.
[32] Mr Alloo suggested that water had entered the cylinder bores as a result of the engine being dismantled. But Mr Perrin told the Tribunal that he had taken steps to prevent this occurring, including by stuffing rags into the bores to stop water getting in.
[33] Although Mr Alloo was adamant that the engine had not overheated before being rebuilt, the fact that the block surface was out of specification made Mr Dixon wonder whether indeed the vehicle had overheated at some earlier stage. Mr Dixon agreed with Mr Perrin’s assessment that, based on the evidence derived from testing carried out by both Mr Perrin and Mr Brazendale, there was no need to have the injectors tested. That is because the leakdown and compression tests are so clear as to indicate that the vehicle’s engine has a significant fault.
[34] Overall, Mr Dixon agreed with Mr Perrin’s assessment that the vehicle’s engine should not be reassembled in its current state. Rather, for the vehicle to function as it should, the engine needs to be rebuilt or replaced.
[35] In his assessment of the evidence presented to the Tribunal, Mr Dixon did not think that the vehicle’s engine was acceptable or fit for purpose in light of the fact that it had been recently rebuilt by Mr Alloo, in conjunction with an engine rebuilder. For the vehicle to be performing so poorly in its compression and leakdown testing so soon after being rebuilt, suggests that something has gone badly wrong in the rebuilding process.
[36] Mr Alloo presented evidence indicating that he had purchased the parts for the rebuild. He then engaged Richard Mansfield, a technician from Auto Engineers (1984) Ltd, to fit the cleaned pistons, honed bores and to fit and gap new rings, bearings and a new crankshaft, to check the clearance and torque the bolts up. But Mr Patterson has established that there are sufficient concerns about the quality of the work that was carried out, and sufficient evidence of the poor current state of the engine, to conclude that the vehicle did not comply with the guarantee of acceptable quality.
[37] However, I emphasise that Mr Patterson has succeeded in establishing that his vehicle did not comply with the guarantee of acceptable quality primarily because it was a vehicle sold as having a “brand new reconditioned engine” with “All work been completed to a high standard”. These were “representation[s] made about the goods by the supplier”, to which I have had regard under s 7(1)(i) of the Act. Having reviewed all the evidence and considered Mr Dixon’s advice, I do not consider that a reasonable consumer would regard the state of the engine as acceptable, in light of these representations.

Issue 2: Was it a failure of a substantial character?

[38] A failure to comply with the guarantee of acceptable quality will be of a substantial character in the circumstances outlined in s 21 of the Act, which provides:

21. Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

[39] Based on the evidence and Mr Dixon’s assessment, I have concluded that something went badly wrong with the rebuilding of the engine in Mr Patterson’s car before he purchased it. Knowing what Mr Patterson knows now about the vehicle, and that it had a pre-existing fault with its engine due to the rebuilding process not having been carried out satisfactorily, I do not consider a reasonable consumer who was fully acquainted with the nature and extent of the vehicle’s failures, would have acquired the vehicle.
[40] Moreover, given Mr Patterson’s identified purpose of wishing to use the vehicle to tow his horse float and his caravan, I do not consider that, in light of its poor compression and leakdown results, the vehicle is currently fit for that purpose. Furthermore, I consider the vehicle’s lack of fitness for these purposes is substantial in terms of s 21(c) of the Act.
[41] It is also clear that repairing the vehicle so that it is in a fit state will be expensive. Mr Dixon considers that rebuilding the engine again is likely to be uneconomic, in relation to the vehicle’s purchase price. We asked Mr Patterson to obtain further evidence on the cost of replacing the vehicle’s engine with a suitable secondhand engine. Even doing that will cost a substantial portion of the purchase price. And, even then, Mr Patterson will be left with a vehicle that is not the same as the one he purchased. That is because it will not have a reconditioned engine. This was, after all, a primary reason why he purchased it.
[42] In conclusion, for the above reasons, the vehicle’s failure to comply with the guarantee of acceptable quality is of a substantial character.

Issue 3: What is the appropriate remedy?

[43] The remedies available to a consumer where a vehicle fails to comply with the guarantee of acceptable quality are out in s 18 of the Act, 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.

[44] One of Mr Alloo’s main concerns is that Mr Patterson did not pay sufficient regard to Mr Alloo’s own right to assess the vehicle for himself, and to have the first opportunity to repair any fault within a reasonable time, before Mr Patterson went ahead and got the vehicle repaired elsewhere.
[45] There are several possible responses to Mr Alloo’s concern.
[46] First, it would appear that when Mr Patterson took the vehicle to Mr Perrin for a tune up, he never intended to claim the costs of this work from Mr Alloo. Rather, more substantial concerns came to light as a result of Mr Perrin’s assessment of the vehicle after Mr Patterson instructed him to do a tune up. Initially, Mr Perrin thought the vehicle’s EGR gaskets and valve needed to be replaced. He carried out this repair, but Mr Patterson has not included the cost of this work in his claim against Mr Alloo.
[47] Second, Mr Patterson has not taken any steps to get the more substantial concerns identified with the vehicle’s engine repaired. Rather, the only work that has been done is to thoroughly investigate the vehicle’s faults. Therefore, in respect of the engine defects included in his claim, Mr Patterson has not breached his obligations to allow the supplier to remedy a failure before exercising the self-help remedy in s 18(2)(b) of the Act to have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred.[2]
[48] Third, Mr Alloo’s complaint does not acknowledge the fact that, as Mr Patterson has established his vehicle had a failure of a substantial character, he had the right to reject the vehicle under s 18(3)(a) of the Act without first having to offer Mr Alloo an opportunity to repair the vehicle’s faults himself.
[49] Fourth, I am also satisfied that Mr Patterson gave Mr Alloo an opportunity to inspect the vehicle himself, but that Mr Alloo did not wish to take up such opportunity, in part due to his desire to fully defend the current proceeding.

Did Mr Patterson exercise his right to reject the vehicle within a reasonable time?

[50] I also need to assess whether Mr Patterson has exercised his right to reject the vehicle within a reasonable time in accordance with s 20(1)(a) of the Act, which provides that the right to reject a vehicle is lost if not exercised within a reasonable time, as defined in s 20(2):

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.

[51] Mr Patterson owned the vehicle for more than 10 months before rejecting it. During that time, he has driven the vehicle approximately 16,000 km. That is arguably too long for it to be reasonable for Mr Patterson to be allowed to reject the vehicle. However, I accept Mr Patterson’s evidence that it took that long before the defect in the vehicle became apparent. I also accept that this delay was reasonable in the particular circumstances of this claim.
[52] In assessing the amount of use to which it is reasonable for the vehicle to be used before the defect became apparent, under s 20(2)(d) of the Act, Mr Patterson should not be assumed to have the kind of automotive expertise possessed by Mr Perrin or Mr Brazendale. I do not consider it was unreasonable for a layperson like Mr Patterson to consider that all that was required to improve his vehicle’s performance and stop it producing black smoke was a “tune up”.
[53] As Mr Dixon confirms, the problem with Mr Patterson’s vehicle required unusually extensive diagnostic work to identify exactly its source. It did not result in any dramatic or catastrophic engine failure. However, the painstaking work of Mr Perrin and Mr Brazendale has identified significant flaws in the way the original engine rebuild was carried out. These flaws were not identifiable by the ordinary reasonable consumer. Nor, it seems to me, is it likely that these flaws would have been identifiable if Mr Patterson had simply taken the vehicle back for Mr Alloo to assess it himself. Rather, it seems more likely that if he had done so, Mr Alloo would have encouraged Mr Patterson to explore whether there was a fault with the vehicle’s injectors. As mentioned earlier, Mr Dixon accepts Mr Perrin’s assessment that the vehicle’s other faults are sufficiently serious that no further investigation of its injectors was necessary. Moreover, I consider that in light of Mr Alloo’s assurance that the injectors had been checked as part of the rebuild, that was unlikely to be the source of the fault. Whether or not there is a fault with the injectors is in a sense immaterial, as Mr Patterson has established sufficiently serious faults otherwise.
[54] Accordingly, I conclude that Mr Patterson has not lost his right of rejection and, in accordance with ss 23(1)(a) and 23(2) of the Act, he is entitled to obtain a refund of the vehicle’s purchase price of $8,500.
[55] In addition, I consider that Mr Patterson is entitled to recover damages to reimburse him for his costs associated with diagnosing the vehicle’s faults. These costs are reasonably foreseeable as liable to result from the vehicle’s failure, in terms of s 18(4) of the Act. They comprise $500.25, which Mr Patterson had to pay to Revolution Automotive as the costs that were involved in assessing the vehicle and preparing the engine data sheet dated 14 January 2021. I also conclude that Mr Patterson is entitled to recover $1,561.13, which is the amount of Diverse Mechanical’s invoice dated 9 February 2021 for the work involved in dismantling the engine and removing it to be sent to Revolution Automotive, together with the engine rebuild specifications that were used by Mr Brazendale. Mr Patterson did not claim the costs of Diverse Mechanical’s invoice dated 13 December 2020 for its original diagnostic work and repairs to the EGR gaskets and solenoid valve.
[56] Mr Patterson also claimed costs for loss of earnings, travel and witness expenses relating to the hearing on 13 May 2021. Regrettably I am not able to award Mr Patterson any compensation for these expenses as they are his costs in relation to the Tribunal proceedings, which are only payable in the limited circumstances provided in cl 14 of sch 1 of the Motor Vehicle Sales Act 2003. In short, because Mr Alloo attended the hearing, and made reasonable attempts to settle the matter with Mr Patterson, I do not have any jurisdiction to award such costs.

Conclusion

[57] Andrew Patterson’s rejection of his Kia Sorento is upheld. Graeme Alloo must pay Mr Patterson $10,561.38 within 10 working days of the date of his decision. Once this amount has been paid in full, Mr Patterson must make the vehicle available for Mr Alloo to collect at Mr Alloo’s cost, if any.

J S McHerron
Adjudicator

This decision has been appealed. The outcome of that appeal was unknown at the date of the publication of this decision.

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[1] In this context, the expression “breathing heavily” refers to engine “blow-by”, which is leakage of air fuel mixture or of combustion gases between a piston and the cylinder wall into the crank case.

[2] Acquired Holdings Ltd v Turvey [2007] NZHC 1251; (2008) 8 NZBLC 102,107 (HC) at [11].