Luxford v Digital Cars Limited t/a U-Sell West Auckland - Reference No. MVD 186/2022 [2022] NZMVDT 159 (28 July 2022)

Last Updated: 11 October 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 186/2022 [2022] NZMVDT 159 BETWEEN EMILY LUXFORD Applicant AND DIGITAL CARS LIMITED, TRADING AS U-SELL WEST AUCKLAND Respondent

MEMBERS OF TRIBUNAL

D Watson, Barrister – Adjudicator

S Gregory, Assessor

HEARING at Auckland on 12 July 2022 (by audio-visual link)

APPEARANCES

E Luxford, Applicant A Dad, Director of Respondent

DATE OF DECISION 28 July 2022

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

A Emily Luxford’s claim to reject the vehicle is allowed.

B Digital Cars Limited must, within 10 working days of the date of this decision, pay $7,255.75 to Emily Luxford.

C Emily Luxford’s rights and obligations under the loan agreement with Bill and Tim Hintz Limited, trading as MTF Finance Masterton, are assigned to Digital Cars Limited from the date of this decision.

D Digital Cars Limited must uplift, at its cost, the 2009 Mazda Axela from Emily Luxford, after it has made the payment of $7,255.75.

_________________________________________________________________

REASONS

Introduction

[1] Emily Luxford purchased a 2009 Mazda Axela (registration number PFF232) from Digital Cars Limited (DCL) for $10,995 on 6 April 2022. The odometer reading was then 106,430 km. Miss Luxford wants to reject the vehicle due to alleged misleading information provided to her by DCL about the condition of the dashboard and as a result of faults that have been discovered with the vehicle.
[2] DCL says that she is not entitled to reject the vehicle. It does not accept that there are faults with the vehicle or that it misrepresented the condition of the dashboard. In any event, it wants the opportunity to inspect and remedy any alleged defects.

Relevant background

[3] Miss Luxford first contacted Adnan Dad, the director of DCL, after seeing a Trade Me advertisement placed by DCL for a Mazda Axela. She asked if there were any issues with the vehicle. He said that it had a sticky dashboard, a feature common to such vehicles. Miss Luxford said that she did not want to buy a vehicle with a sticky dashboard.
[4] Mr Dad said that he had other vehicles listed for sale and so Miss Luxford looked at his other listings. She then contacted him again about another Mazda Axela. This time, he said the vehicle was in excellent condition. She asked once again if it had a sticky dashboard and he said it was not.
[5] Miss Luxford produced a copy of the Trade Me advertisement for this second vehicle. It records:

Just in!! This stunning Axela 2.0 Sport Hatch is one not to miss out on! In amazing condition looking sharp in red...and many more features,

... 5) Serviced.

[6] Miss Luxford also produced some text exchanges she had with Mr Dad about the vehicle. One of the text messages included a photograph showing the dashboard, in apparently very good condition, with a message saying:

Hi I have sent you a photo of the dashboard this has already been Cotted and it’s not sticky like the other ones also I have dash Matt which I will include free of cost for you I just need to let you know this before I register the car.

[7] The Tribunal asked Mr Dad what he meant by “Cotted”, as this is not a term that either the Tribunal or the Tribunal’s Assessor were familiar with in connection with a vehicle’s dashboard. Mr Dad said that this meant it had been “painted over”.
[8] There was no written agreement for sale and purchase of the vehicle however a consumer information notice was produced which recorded the key terms of sale.
[9] The purchase price was paid on 12 April 2022. The amount paid was $11,595, which included $600 for shipping the vehicle to Miss Luxford, who lives in Masterton.
[10] In order to complete the purchase, Miss Luxford obtained financing from Bill and Tim Hintz Limited, trading as MTF Finance Masterton (MTF Finance), in the sum of $6,886.35.

The vehicle arrives in Masterton

[11] On 26 April 2022, the vehicle arrived in Masterton at 7pm. As the vehicle was being offloaded, Miss Luxford noted the right-hand headlight was not working.
[12] Miss Luxford contacted Mr Dad the following day and told him about the faulty headlight. He told her to go and buy a bulb and replace it herself. He said he would reimburse her for the cost of the bulb.
[13] Upon later opening the bonnet of the vehicle, Miss Luxford could see that the headlight was completely encased. This meant she would not be able to replace the bulb herself because she could not gain access to it.
[14] On 28 April 2022, Miss Luxford spoke to Mr Dad again about the headlight and he said that she should take it to a mechanic. He said it should be a “cheap fix” and he would pay up to a maximum of $150 for it to be fixed.
[15] On 30 April 2022, Miss Luxford went to clean the vehicle and removed the dash mat that had been supplied with the vehicle. Once removing it, she saw that the whole dashboard was sticky and the surface was coming off. She noticed that the coating on the dashboard had melted in certain spots. She produced photographs showing the condition of the dashboard which are consistent with her evidence. These photographs show that the dashboard looks remarkably different from the condition of the dashboard shown in the photograph sent to her by Mr Dad prior to sale.
[16] In his evidence, Mr Dad insisted that the dashboard photograph he sent to Miss Luxford prior to sale was the dashboard in the vehicle she bought. He alleged that the dashboard must have fallen into the condition it was in after it was shipped to Miss Luxford.
[17] Also, on 30 April 2022, Miss Luxford checked the engine and noted that the power steering fluid level was just above minimum. She noticed that the headlight now had condensation in it, which led her to believe that the problem might be more than simply a light bulb needing replacement. She was also curious as to why, when the vehicle had apparently just been serviced, the fluid levels were so low.

The conversation of 2 May 2022

[18] Miss Luxford sought advice from her finance broker at his office on 2 May 2022. He told her about the Consumer Guarantees Act 1993 (the CGA) as well as the Motor Vehicle Disputes Tribunal. He advised her to contact Mr Dad.
[19] Miss Luxford called Mr Dad there and then and her broker sat in on the phone conversation. She told Mr Dad what she had discovered and asked Mr Dad why he had lied to her about the condition of the dashboard? She said, Mr Dad adopted an aggressive tone, asking what she expected with a 13-year-old vehicle. She claims he said that all Mazda Alexas are like this in that they suffer from a sticky dashboard. She asked for the most recent warrant of fitness check sheet and service information and Mr Dad said he could not provide that.
[20] Miss Luxford’s evidence was that Mr Dad offered to fix the dashboard if she was to bring the vehicle to Auckland, at her own expense. He said that however he could only fix it by replacing it with another second-hand sticky dashboard. He insisted all Mazda Axelas are like that.
[21] Miss Luxford’s finance broker provided a written statement about the conversation. He verified that Mr Dad said she needed to get the car back to Auckland. He said in his statement that Mr Dad “put the blame on her and made it her problem with getting the car back to Auckland etc”.
[22] Mr Dad’s version of this conversation was that he did not say she had to bear the cost of bringing the vehicle to Auckland; he simply asked if she was going to be in Auckland and if so, he would replace the dashboard at that time.
[23] Miss Luxford filed her application with the Tribunal on 2 May 2022 in which she asked for a refund and rejected the vehicle.

The conversation of 6 May 2022

[24] There was then a second conversation between Miss Luxford and Mr Dad. This conversation took place on 6 May 2022. Miss Luxford asked her employer, Tom Wilkinson, to be a witness.
[25] The call began and Miss Luxford told Mr Dad she was now going to go to the Tribunal because of the issues with the vehicle. She said that she wanted her money back, including the cost of transportation of the vehicle. Her evidence was that Mr Dad once again said that the vehicle would of course have issues because of its age. He said he would fix the bulb as it would be a cheap fix and he would top up the fluids. He also said that he would replace the dashboard but said that replacing the dashboard would be tricky because all dashboards are sticky for this type of car. Once again, he said that he would only assist with these repairs if she was to get the vehicle to Auckland at her expense.
[26] Mr Wilkinson provided a written statement verifying that he had heard Mr Dad say that Miss Luxford would need to get the vehicle to him in Auckland if repairs were to be undertaken.

[52] Mr Dad took exception to Mr Wilkinson’s written comments contained within his statement about his business ethics. I record that I do not regard those observations as relevant and have not taken them into account in any way in reaching this decision.

Quotes for repair

[53] Miss Luxford has taken the vehicle to a mechanic for assessment. A report from My Vehicle Maintenance Limited (dated 4 July 2022) was produced in evidence. It has assessed that a new powerpack is required to repair the faulty headlight. It has also assessed that the vehicle needs two new batteries and that the fluid levels are low. It has quoted $1,856.34 to remedy all these issues.
[54] Miss Luxford obtained a quote from Rob Walker Spray Painters for the replacement of the dashboard. The amount quoted is $1,989.50.
[55] In order to obtain these quotes, Miss Luxford had to take the day off work. She did so as unpaid leave, meaning she was not paid that day.
[56] Miss Luxford said that she has not driven the vehicle at all and the odometer reading is 106,561 km. Miss Luxford has been continuing to make payments to MTF Finance with respect to the loan on the vehicle and she confirmed that the vehicle has not been damaged.
[57] DCL’s response to the claim is:

• (a) it is willing to replace the dashboard,
• (b) it is willing to top-up the power steering fluid levels, and
• (c) with respect to the headlight and the batteries, it does not accept that these are faults with the car and wants the opportunity to have its own mechanic assess these faults before undertaking any repairs.

The issues

[58] The issues requiring the Tribunal’s consideration in this case are:

• (a) Was the vehicle of acceptable quality for the purposes of section 6 of the Consumer Guarantees Act 1993 (the CGA)?
• (b) Did the vehicle comply with its description for the purposes of section 9 of the CGA?
• (c) Was DCL required to remedy the failures within a reasonable time?
• (d) Are the vehicle’s failures a failure of a substantial character?
• (e) What remedy is Miss Luxford entitled to under the CGA?

Issue 1: Was the vehicle of acceptable quality?

[59] 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.
[60] The expression “acceptable quality” is defined in section 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.

(2) Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.

(3) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) are those disclosed on a written notice displayed with the goods.

(4) Goods will not fail to comply with the guarantee of acceptable quality if—

(a) the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and

(b) the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.

(5) A reference in subsections (2) and (3) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.

[61] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in section 7(1)(a)-(e) of the CGA as modified by the factors set out in section 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 Miss Luxford’s subjective perspective.
[62] I find that the vehicle was not of acceptable quality. It has the following defects:

• (a) the right-hand headlight does not work and has condensation building up inside it;
• (b) its two batteries need replacement;
• (c) the power steering fluid level needs to be topped up; and
• (d) it has a sticky dashboard.

[63] I find that a reasonable consumer of a vehicle of this price, age and mileage would not expect to encounter such faults almost immediately upon delivery of the vehicle. A reasonable consumer should of course have realistic expectations about the condition of a vehicle of this age and mileage, and should expect to encounter some maintenance issues. I am however satisfied that the faults I have identified above mean that the vehicle was not as acceptable in appearance and finish, free from minor defects or as durable as a reasonable consumer would regard as acceptable.

Issue 2: Did the vehicle comply with its description for the purposes of section 9 of the CGA?

[64] Miss Luxford claims that the vehicle was described as having a dashboard that was not sticky. She expressly asked about the condition of the dashboard and was assured by Mr Dad that it was not sticky prior to sale.
[65] Section 9(1) of the CGA provides:

Subject to section 41, where goods are supplied by description to a consumer, there is a guarantee that the goods correspond with the description.

[66] In Cooper v Ashley and Johnson Motors Ltd,[1] the Court considered, obiter, that the description of the numbers of owners of a vehicle, the stated odometer reading and the oral statement that the vehicle was a “good one”, were all elements of the vehicle’s description. In Mikitasov v Lee,[2] an appeal from the Disputes Tribunal, Judge Moran referred with approval to the Tribunal’s finding that the supply via Trade Me of an “Apple MacBook” that was not genuine amounted to a breach of the guarantee of correspondence with description.
[67] In assessing whether there has been a breach of the guarantee that goods comply with their description, step one is determining what was the description of the vehicle when it was being marketed for sale by DCL, and step two is determining whether or not the vehicle corresponded with that description.

Step one: What was the description of the vehicle when it was being marketed for sale?

[68] The photograph that was sent to Miss Luxford by Mr Dad depicts a dashboard in good condition. No stickiness, damage or melting spots can be observed. Additionally, Mr Dad messaged Miss Luxford with the comment that the dashboard was not sticky like the other ones. This was in response to her express question about the condition of the dashboard, given the Mazda Axela she had previously enquired of Mr Dad’s was sticky.
[69] I find that a reasonable consumer would conclude from these exchanges that the vehicle was described as having a dashboard that was not sticky.
[70] I find that the vehicle was therefore described as having a dashboard that was not sticky when it was being marketed for sale.

Step two: Did the vehicle comply with its description?

[71] Miss Luxford’s evidence was that when she went to clean the vehicle on 30 April 2022, she discovered that the whole dashboard was sticky on the surface and certain areas were coming off. She also noticed that it had melted in certain spots. She produced photographs depicting the condition of the dashboard.
[72] Mr Dad was adamant that the vehicle was not in this condition when it left the DCL premises. He believes that the deterioration in the dashboard has occurred sometime between the vehicle being sold to Miss Luxford and when it arrived with her some two weeks later.
[73] The Tribunal’s Assessor, Sean Gregory advises that sticky dashboards are very common in Mazda Axelas. Their condition has to do with the coating that is used by the manufacturer. He advises that the deterioration in the coating would be gradual and there is little chance that would have deteriorated to the level depicted in the photographs taken by Miss Luxford in just two weeks.
[74] I am satisfied that at the time the vehicle was sold, it did not comply with its description of having a dashboard that was not sticky. I reject the evidence of Mr Dad that the vehicle did not have a sticky dashboard when it was sold to Miss Luxford. I find that the truth of the matter is that it is more probable than not that it did.
[75] I therefore find that there was a breach of the guarantee of description contained in section 9 of the CGA.

Issue 3: Was DCL required to remedy the failures within a reasonable time?

[76] Section 18 of the CGA 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.

[77] Miss Luxford is therefore entitled to reject the vehicle if she has proven that:

• (a) DCL was required to remedy the failures within a reasonable time, and
• (b) DCL refused or neglected to remedy the failures within a reasonable time.

[78] I am satisfied that Miss Luxford asked Mr Dad to remedy the failure of the headlight on 27 and 28 April 2022. At this stage, the information provided to him indicated this could simply be a faulty bulb. The condensation was not discovered until later. I am not, however, satisfied that Mr Dad was asked to remedy the fault causing condensation to build up within the headlight within a reasonable time after discovery of the condensation.
[79] Likewise, I am not satisfied that Miss Luxford expressly asked Mr Dad to remedy the other failures within a reasonable period of time.
[80] The CGA is clear on the process that must be followed in order for there to be a right of rejection under section 18(2)(b)(ii) of the CGA. Miss Luxford was required to first ask DCL to repair these other failures within a reasonable time and I am not satisfied she has done so.
[81] It follows that Miss Luxford is unable to reject the vehicle on this basis because she has not first required DCL to remedy the failures.

Issue 4: Are the vehicle’s defects a failure of a substantial character?

[82] Under section 18(3) of the CGA, Miss Luxford may reject the vehicle if its defects amount to a failure of a substantial character. A failure of a substantial character is defined in section 21 of the CGA:

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.

[83] Section 21(a) of the CGA applies to this case. The question I must answer is whether the faults that this vehicle has, are such that a reasonable consumer, fully acquainted with the true nature and extent of the faults, would not have purchased the vehicle.

The failures of acceptable quality

[84] I have found that there are four failures with the vehicle which amount to a breach of the guarantee of acceptable quality. These are:

• (a) the right-hand headlight does not work and has condensation building up inside it,
• (b) its two batteries need replacement,
• (c) the power steering fluid level needs to be topped up, and
• (d) it has a sticky dashboard.

[85] Mr Gregory advises that these failures are all readily fixable, albeit they will be expensive to repair (when compared with the value of the vehicle).
[86] In the circumstances of this case, I am not satisfied that the accumulation of the four failures of acceptable quality amount to a failure of a substantial character.
[87] It follows that Miss Luxford is unable to reject the vehicle on this basis.

The failure to comply with description

[88] I regard this failure as being more significant. Miss Luxford expressly asked about the condition of the dashboard before purchase. She had already told Mr Dad when enquiring about the original vehicle that she did not want a sticky dashboard. He assured her that the vehicle she was buying did not have a sticky dashboard, when it did.
[89] I find that a reasonable consumer of this vehicle, armed with that information, would simply not have purchased the vehicle knowing the true position.
[90] I therefore find that in the circumstances of this case, the failure of the vehicle to comply with its description is a failure of a substantial character.

Issue 5: What remedy is Miss Luxford entitled to under the CGA?

[91] Under section 18(3) of the CGA, Miss Luxford has the right to reject the vehicle because the failure of the vehicle to comply with its description was a failure of a substantial character.
[92] DCL is adamant and wants an opportunity to remedy all of the failures, but where there is a failure of a substantial character, a purchaser is entitled to rejection. In that situation, a purchaser does not need to offer a trader an opportunity to remedy the failure.
[93] Miss Luxford is therefore entitled to rejection as well as a refund of all amounts paid in respect of the vehicle.[3]

What amount has she paid in respect of the vehicle?

[94] In this case, the vehicle cost $10,995. Miss Luxford paid an additional $600 for shipping the vehicle to her.
[95] Miss Luxford paid for the vehicle in part from her own funds and in part from monies she borrowed from MTF Finance. She produced a loan agreement in evidence between herself and MTF Finance (the loan agreement). This loan agreement records that Miss Luxford borrowed $6,886.35 to complete the purchase of the vehicle. The sum she borrowed comprised of $6,500 for the vehicle and the balance of $386.35 for fees. The balance of the purchase price of $4,495 has therefore come from Miss Luxford’s own funds.
[96] The evidence produced by Miss Luxford establishes that she makes weekly payments of $144.05 in respect of the loan agreement. As at 21 July 2022, she has made total payments of $2,160.75. I am satisfied that she should be compensated for all of these weekly payments because she has rejected the vehicle soon after delivery and is not driving it. Miss Luxford’s evidence was that the odometer reading on the vehicle at the date of the hearing was 106,561 km. This is only approximately 130 km more than when the vehicle was purchased. Miss Luxford confirmed that she has not damaged the vehicle at all since receiving it.
[97] The payments that Miss Luxford has made in respect of the vehicle are as follows:

payment towards the purchase price	$4,495.00
shipping cost	$600.00
payments to MTF Finance Masterton as at 21 July 2022	$2,160.75
Total	$7,255.75

[98] The total payment that must be made by DCL to Miss Luxford is therefore $7,255.75.

Assignment of the loan agreement

[99] Miss Luxford is also entitled to have her ongoing rights and obligations under the loan agreement assigned to DCL. The relevant statutory provisions are set out in sections 89(2) and (3) of the Motor Vehicle Sales Act 2003 (the MVSA), which state:

89 Jurisdiction of Disputes Tribunal

...

(2) A Disputes Tribunal may order that the rights and obligations of the buyer of a motor vehicle under a collateral credit agreement vest in a motor vehicle trader if—

(a) the collateral credit agreement is associated with the contract for the sale of that motor vehicle; and

(b) the motor vehicle trader is a party to that contract for sale; and

(c) either one of the following circumstances applies:

(i) the buyer exercises the right conferred by the Consumer Guarantees Act 1993 to reject that motor vehicle and, on a claim by the buyer under section 47(1) of that Act, the Disputes Tribunal orders the motor vehicle trader to refund any money paid, or other consideration provided, for that motor vehicle; or

(ii) the Disputes Tribunal finds that the buyer has suffered, or is likely to suffer, loss or damage by the conduct of the motor vehicle trader that constitutes, or would constitute, any of the conduct referred to in section 43(1) of the Fair Trading Act 1986 and the Disputes Tribunal makes an order under section 43(2) of that Act declaring the whole or any part of the contract for sale to be void.

(3) For the purposes of subsection (2), collateral credit agreement, in relation to a contract for the sale of a motor vehicle, means a contract or agreement arranged or procured by the motor vehicle trader or the buyer for the provision of credit by a person other than by the motor vehicle trader to enable the buyer to pay the price reserved by the contract for sale in respect of the motor vehicle.

...

[100] The criteria in section 89(2) of the MVSA for the assignment of rights and obligations under a collateral credit agreement to DCL are all met in this case:

• (a) The loan agreement is a collateral credit agreement for the purposes of section 89(2) of the MVSA in that it was associated with the agreement for sale and purchase in respect of the vehicle (the purchase agreement). The loan agreement was arranged or procured by Miss Luxford for the provision of credit by MTF Finance to enable her to purchase the vehicle.
• (b) DCL sold the vehicle to Miss Luxford, so it is a party to the purchase agreement.
• (c) Miss Luxford has exercised the right conferred by the CGA to reject the vehicle and the Tribunal has ordered that DCL must refund any money paid, or other consideration provided, for that vehicle.

[101] Accordingly, under section 89(2) of the MVSA, all of Miss Luxford’s rights and obligations under the loan agreement are assigned to DCL from the date of this decision.
[102] I note that Miss Luxford also sought compensation for time taken off work in order to obtain the quotes, but there was insufficient evidence provided of monetary loss and so I do not allow this.
[103] For completion, I record that Miss Luxford may have alternatively made a claim on the basis of alleged misleading or deceptive conduct under the Fair Trading Act 1986. Given I have made an adequate remedy available pursuant to the CGA, I do not consider it is necessary to consider or make any findings in relation to such an alternate claim.

Outcome

[104] Miss Luxford’s claim to reject the vehicle is allowed.
[105] DCL must, within 10 working days of the date of this decision, pay $7,255.75 to Miss Luxford.
[106] Miss Luxford’s rights and obligations under the loan agreement are assigned to DCL from the date of this decision.
[107] DCL must uplift, at its cost, the 2009 Mazda Axela (registration number PFF232) from Miss Luxford, after it has made the payment of $7,255.75.

DATED at AUCKLAND this 28th day of July 2022.

D A Watson
Adjudicator

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[1] [1997] DCR 170, (1996) 7 TCLR 407 (DC), at [180] and [415].

[2] DC Kaikohe CIV-2010-027-331, 4 July 2011.

[3] Section 23(1)(a) of the CGA.