Singh v Nova Motors Penrose Ltd - Reference No. MVD 368/2022 [2022] NZMVDT 259 (24 November 2022)

Last Updated: 26 December 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVDT 368/2022 [2022] NZMVDT 259 BETWEEN AMRITPAL SINGH Applicant AND NOVA MOTORS PENROSE LTD Respondent

MEMBERS OF TRIBUNAL

D Watson, Barrister – Adjudicator

S Gregory, Assessor

HEARING at Auckland on 9 November 2022 (by audio-visual link)

APPEARANCES

Amritpal Singh, Applicant Natalia Skachkova, Witness for the Respondent

DATE OF DECISION 24th November 2022

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DECISION OF THE TRIBUNAL

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A. Amritpal Singh’s application for rejection of the vehicle is dismissed.

B. Nova Motors Ltd must pay $617 to Amritpal Singh, if that sum has not already been paid, within 10 working days of the date of this decision.

C. Nova Motors Ltd remains subject to the orders in the decision dated 5 July 2022.

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REASONS

Introduction

[1] Amritpal Singh purchased a 2010 Mercedes-Benz C250 from Nova Motors Penrose Ltd (NML) on 18 October 2021 for $13,085.00.
[2] On 30 March 2022, Mr Singh made an application to the Tribunal for an order rejecting the vehicle. On 5 July 2022, Mr Singh’s application to reject the vehicle was dismissed (the first decision). Nova was ordered to pay Mr Singh the sum of $155.25[1] and to undertake the following repairs within a reasonable period of time from the date of the first decision:

• (a) adequate repairs to ensure that the infotainment system and scrolling knob function correctly, and
• (b) adequate repairs to fully remedy the oil leak that is leaking onto the exhaust system.[2]

[3] In relation to the infotainment system repairs these have not been done because NML sent the wrong unit to the mechanic. In relation to the oil leak, work was undertaken by a mechanic local to Mr Singh but Mr Singh claims that the same fault has re-emerged. Mr Singh paid $617 for that work to be undertaken on the basis that NML would reimburse him. It has not done so.
[4] Mr Singh has now filed a fresh application with the Tribunal, once again asking for rejection. He also wants compensation for consequential losses he has incurred. These include compensation for wasted fuel and his time spent in dealing with this matter as well as compensation for medical issues that have arisen as a consequence of the vehicle’s failures. He also claims that the ordered sum of $155.25 was not paid and nor has the sum of $617 been reimbursed to him.
[5] NML’s response is that it hopes to shortly pay the sums of $617 and $155.25 to Mr Singh. It has not paid these sums yet because it is no longer trading and its liquidity position remains tenuous. I infer that it has no current source of revenue. In relation to the oil leak, NML claims that this was fixed and that it has not received any updated diagnosis in relation to any ongoing fault. In relation to the infotainment unit and scrolling knob, it accepts that there was an error with the wrong infotainment unit initially being installed in the vehicle but says that upon realising its error it arranged for the correct unit to be sent for installation. It says that Mr Singh is now refusing to have the correct unit installed in the vehicle. It wants to be able to repair the vehicle.

Relevant background to this application

[6] Many of the events that have taken place since the previous hearing are not in contention.

The oil leak

[7] In its first decision, the Tribunal referred to a report from Wellington European. That report had indicated that there was oil leaking onto the exhaust. Wellington European recommended repairs to rectify the oil leak from the oil filter housing.
[8] Following the first decision, the vehicle was sent to Midas Te Aro for repairs. Midas Te Aro rendered an invoice for $617 on 10 August 2022 for this work. Its invoice recorded that it had traced the oil to under the intake manifold at the oil filter housing area.
[9] It was common ground that NML has not paid the invoice. Mr Singh has paid it in the first instance. NML’s explanation is that this invoice will be paid and has been approved for payment. It puts its non-payment down to the fact that it is no longer trading.
[10] Mr Singh claims that the original oil leak has re-emerged. Photographs were produced showing drops of oil on the pavement which Mr Singh alleges appeared underneath where his car was parked.
[11] There was no mechanical diagnosis produced by Mr Singh during the hearing relating to this alleged ongoing oil leak. This failing was discussed with Mr Singh during the hearing. Mr Singh made it clear he did not wish to undertake any further diagnosis because he considers he has already taken enough time off work, does not have the money to pay for any further diagnosis and he is simply now seeking a “final solution”.
[12] Nevertheless, by way of directions issued after the hearing dated 9 November 2022, Mr Singh was given a final opportunity to undertake any further diagnosis in relation to the alleged faults. In these directions, the parties were both reminded that:

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in bringing a claim before the Tribunal they must prove their claims on the balance of probabilities. In other words, they must prove that it is more probable than not that their version of events took place or that their claim should be upheld. Bare oral allegations and assertions can sometimes be insufficient evidence to prove a claim. Contemporaneous documents will often be useful evidence to assist the Tribunal in deciding whether or not a claim can be proven.

[13] Following these directions, Mr Singh advised the Tribunal by email dated 11 November 2022 that he did not wish to undertake any further diagnosis. He relies on the material he has already supplied. Mr Singh inquired of the Tribunal what further evidence the Tribunal needed and on 15 November 2022 the Tribunal issued directions recording that Mr Singh had elected to provide no further diagnostic evidence or documentation and that the Tribunal would therefore determine the case on the basis of the information provided to date.

The infotainment unit and the scrolling knob.

[14] After the first decision, the vehicle was taken by Mr Singh to My Audi in Wellington so that repairs on the infotainment unit and the scrolling knob could be undertaken. Email communications were produced in evidence which showed that NML would be supplying the unit and that it would pay My Audi directly for the labour and inspection costs.
[15] NML bought what it believed was the correct unit for the vehicle and sent this to My Audi for installation. My Audi then installed the unit, however, the unit that was supplied turned out to be the wrong unit for the vehicle. Mr Singh produced a video which showed the sound working correctly but no image on the screen. Without being able to see any image, it is impossible to ascertain whether or not scrolling knob is working.
[16] NML then arranged to obtain the correct unit and sent this to My Audi. In the meantime, however, Mr Singh decided he had lost all trust in NML to repair the vehicle and has not permitted any further repairs.

Mr Singh’s current claim

[17] Before the hearing, Mr Singh provided a chronology and a document called “I am seeking beneath outcome from this claim” (the claim). The claim set out the orders he was seeking. It did not expressly mention whether he was asking for rejection of the vehicle. When the Tribunal asked during the hearing whether he was seeking rejection, Mr Singh appeared equivocal as to whether he was asking for rejection or not. Following the hearing, the Tribunal therefore directed him to clarify in writing whether he was indeed seeking rejection and by way of his email dated 11 November 2022, he did so.
[18] In Mr Singh’s claim, he also claims an order for NML to finish the repairs. Because he is asking for rejection as well, this aspect of the application is therefore treated as an alternative.
[19] In terms of other claims being made by Mr Singh, he wants an order that NML pay the monies already ordered to be paid and to provide compensation of all additional consequential costs and expenses, including time spent in dealing with the matter.
[20] In view of the lack of any documentary evidence supporting his claim for consequential losses (a deficiency also in the prior claim he brought before the Tribunal) the Tribunal directed him to provide all documentary evidence supporting his claim for monetary compensation after the hearing. He did not provide any corroborating documentary evidence after the hearing, other than his written submissions that I have referred to above.
[21] In the following paragraphs, I summarise the claims for monetary compensation and consequential losses.

(a) Loss of wages – $1,280 (at $40 per hour)

[22] Mr Singh claims that this relates to taking time off work four times and arranging for the vehicle to be dropped at mechanics, collected and repaired. His evidence was that this was all time spent in connection with remedying the vehicle’s original failures since the last hearing of this matter.
[23] There was no documentary evidence provided in support of that claim, such as payslips or even a written schedule of dates and estimated time spent on each date. During the hearing, Mr Singh said that he did not want to disclose who his employer was and so therefore did not want to provide payslips. I mean no criticism of Mr Singh but the oral evidence he gave during the hearing around whether he was actually employed during this period was somewhat vague and inconsistent. He said at one point that he had lost his employment, although mentioned at various times that he was “on probation” during his employment. Upon further questioning, he clarified that he was fully employed during the time he took the vehicle to get its repairs.

[24] In terms of the hourly rate, Mr Singh explained that he arrived at the rate of $40 per hour because, although it was lower than the hourly rate he is currently paid, he considers this an appropriate hourly compensation for similar work. Upon further questioning, he said that he drew the figure from “government statistics”.

(b) Medical fees

[25] Mr Singh claims for the cost of two visits to his doctor. He says this claim arose “because of stress caused by doing follow-up with Nova Motors and extremely bad air cabin filter in the car.” His supporting documentation was two invoices from Central Wellington Medical Centre. One is dated 11 July 2022 and is for $69 and the second is dated 2 August 2022 and is also for $69.
[26] Once again, when giving his oral evidence during the hearing, Mr Singh presented as equivocal as to exactly what these invoices related to, stress or the faulty cabin filter or both. Upon further questioning, he eventually stated that the invoices related both to the stress in dealing with the current claim and the faulty cabin filter.
[27] As is stated in paragraph [11] of the earlier decision, the filter was replaced in January 2022. He was reporting an ongoing smell, although the earlier decision records his evidence that the smell had reduced by approximately 70%.
[28] The invoices themselves contain no information as to what the consultations relate to.
[29] The communications that were produced in evidence show that by the date of the first invoice, the parties were only just getting in communication in relation to the Tribunal’s decision. By the date of the second invoice, there were communications showing Mr Singh chasing up NML in relation to the unpaid invoices and the parties continuing to discuss arrangements for the vehicle to be repaired.
[30] The bulk of the communications and efforts to remedy the vehicle however appear to postdate the second medical consultation and indeed the work that was done to remedy the oil leak was not done until 10 August 2022.

(c) Five days lost wages – $40 per hour = $1,000

[31] Mr Singh alleges that this claim relates to time spent arranging towing, dropping the car at mechanics, diagnosing and collecting the vehicle and that it was “loss was not counted and covered in the previous decision.” In his evidence, he confirmed that this was therefore relating to the first decision.
[32] The Tribunal explained to Mr Singh during the hearing that the current claim was not an opportunity to relitigate matters already raised and dealt with. His pathway, if he was dissatisfied with the outcome of the first decision, was to appeal.
[33] The Tribunal notes that, in any event, the first decision expressly recorded that Mr Singh sought compensation for overall damages as a result of having to take time off work but that he had not particularised the sum claimed ($10,000) or provided the Tribunal with any corroborating evidence of any damages suffered. It is therefore not correct that the matter was not covered in the prior decision.
[34] Once again, it is further noted that no payslips, nor even a detailed schedule of time spent, was provided substantiating this element of his claim.

(d) Compensation for fuel and time wasted - $300

[35] This aspect of the claim related specifically to all fuel and time allegedly wasted in dealing with diagnosing the infotainment system and scrolling knob. Mr Singh clarified that this claim was additional to the other claims for time spent.
[36] Once again, no documentary evidence of any sort was provided in support of this claim. Mr Singh had the opportunity to provide documentary evidence after the hearing, but did not do so. Also, as is clear from the first decision, he was clearly aware of the need to provide corroborating evidence of damage suffered, yet did not do so.

(e) Claim for $5,000

[37] Mr Singh has purchased another vehicle. The vehicle subject to this claim is not being driven. He said in his evidence the vehicle was parked elsewhere as he does not have enough room to park it where he lives. He has obtained a valuation from Turner’s Cars which shows that the vehicle is currently worth $5,000 in its current condition and $8,000 if the vehicle was in retail condition.
[38] During the hearing, Mr Singh gave evidence that he was claiming $5,000 because he has not driven the vehicle as a result of this claim. The Tribunal asked Mr Singh several times to elaborate on or develop the basis of this claim because it was unclear as to the how it was formulated. Following further questions of Mr Singh, it appeared that this was a claim for the depreciated value of the vehicle which Mr Singh has allegedly incurred, even though he does not drive the vehicle. Mr Singh paid just over $13,000 for the vehicle, and at its current retail value being $8,000, Mr Singh therefore claims to have suffered a loss of $5,000.

(f) Claim for unpaid invoice of $133.69.

[39] Mr Singh claimed that this diagnostic invoice, rendered by Midas Te Aro on 5 May 2022, was “forgotten” by the Tribunal in its previous decision. The Tribunal corrected Mr Singh on this point and reminded him of his evidence during the prior hearing where he had said that the only diagnostic invoice he had incurred that was not already paid by NML was the invoice for $155.25.
[40] The invoice relates to a diagnostic fee relating to the first decision. The invoice was produced at the prior hearing and relates to the failures. NML indicated during the hearing that it would pay it but only if the Tribunal ordered it to pay the invoice.

Standard of proof

[41] A party bringing a claim before the Tribunal must prove their claim on the balance of probabilities. They must prove that it is more probable than not that their version of events should be accepted. Bare assertions, unsupported by any documentary evidence, may be inadequate to prove a claim. Documentary evidence that is contemporaneous is often useful for the Tribunal to see as it may corroborate what a party is asserting.
[42] A significant amount of material has been filed in this case by both parties. In preparing this decision, the Tribunal has considered all material filed considered all evidence given, albeit not all of that material and evidence will be specifically referred to in this decision.

The issues

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

• (a) Did NML remedy the failures identified in the earlier decision within a reasonable period of time from 5 July 2022?
• (b) What remedy is Mr Singh entitled to?

Issue 1: Did NML remedy the failures identified in the earlier decision?

[44] Mr Singh is only entitled to the remedy of rejection if the Tribunal is satisfied that NML failed to remedy either of the failures previously found within a reasonable period of time of the date of the earlier decision. This is because s 18(2)(b)(ii) of the Consumer Guarantees Act 1993 (the CGA) gives a purchaser the right to reject a vehicle where a supplier refuses or neglects to do so or does not succeed in doing so within a reasonable time.

The oil leak

[45] The evidence establishes that Midas Te Aro undertook the repairs set out in its invoice dated 10 August 2022. For reasons which are unclear, the invoice was paid by Mr Singh, however, the liability to pay the invoice was NML’s. Presumably, this was done for convenience purposes and so that Mr Singh could obtain the swift release of his vehicle.

[46] As observed above, there was no diagnostic evidence of any ongoing issue with the oil leak that was the subject of those repairs. Mr Gregory, the Tribunal’s Assessor, advises that oil leaks are extremely common in older European vehicles and that they become increasingly difficult to prevent. Without knowing whether the fresh leak that Mr Singh says is now present is a by-product of faulty repair by Midas Te Aro, or whether it represents a new leak, the Tribunal simply has inadequate evidence before it to decide whether the oil leak that NML was directed to remedy has in fact been remedied.

[47] As discussed above, Mr Singh was given the opportunity to obtain further diagnostic evidence in this regard after the hearing but declined to do so.

[48] Given the lack of any diagnostic evidence substantiating his claim, I find that he has failed to prove on the balance of probabilities that NML refused or neglected to remedy the failure within a reasonable period of time. There is simply no diagnostic evidence substantiating this part of his claim.

The infotainment unit and the scrolling knob

[49] These two failures are linked. Without the infotainment unit functioning correctly, it is impossible to ascertain whether the scrolling knob has been remedied as well.
[50] NML’s obligation was to remedy the failure within a reasonable period of time.
[51] I accept the evidence of NML that it genuinely believed it had ordered the correct unit to be sent to My Audi. I also accept that the replacement unit has been purchased by NML and is currently with My Audi awaiting installation into Mr Singh’s vehicle.
[52] Mr Gregory advises that it is not uncommon for there to be mix-ups with parts and model numbers in relation to vehicles and that it is therefore common for the wrong part to be supplied and installed in a vehicle in error. Mr Gregory advises that sometimes the wrong part is supplied two or three times before the correct part is identified and installed. This is often through no fault of a trader but can be human error at the supplier’s end.
[53] With NML having arranged for the correct new part to be provided for installation, it was incumbent on Mr Singh to accept installation of the replacement part in his vehicle. I accept that he has experienced frustration with the way in which the repair has unfolded, and that it has involved time spent on his part, but he has walked away from the process of repair too soon. I find that in the circumstances of this case NML has not had a reasonable opportunity to remedy the failure.
[54] I therefore find that the evidence establishes that NML has not neglected to remedy this failure within a reasonable period of time.

Issue 2: What remedy is Mr Singh entitled to?

[55] It has not been proven that NML neglected to remedy the failures within a reasonable period of time. It follows that I find that Mr Singh is not entitled to reject the vehicle.
[56] In relation to remedying the failures, NML is however still subject to the first decision. The orders in the first decision are not replaced by this decision and I do not repeat them here. NML must therefore remedy any outstanding failures directed to be undertaken pursuant to the first decision.
[57] I now consider the additional remedies that have been claimed by Mr Singh for consequential losses.

(a) Loss of wages – $1,280 (at $40 per hour)

[58] The Tribunal has power under s 18(4) of the CGA to make an order in favour of a consumer for damages resulting from a failure which was reasonably foreseeable as liable to result.
[59] Mr Singh claims that the four visits he made to and from mechanics in relation to performing repairs directed by the Tribunal took 32 hours. As alluded to above and as discussed during the hearing, however, there was no documentary evidence corroborating this aspect of Mr Singh’s claim. Mr Singh was given full opportunity to provide such documentary evidence after the hearing but did not do so. He provided no pay slips or information from his employer showing that he was not paid; he has simply failed to provide any corroborating information at all.
[60] I find that Mr Singh has not proven, on the balance of probabilities, that he has suffered any monetary loss in relation to the failures in relation to time spent.

(b) Medical fees

[61] Mr Singh says they relate to stress and a non-particularised illness relating to the faulty cabin filter. Mr Singh claimed that they relate to the second claim.
[62] The medical invoices themselves shed no light at all as to what medical conditions that they relate to.
[63] The trouble with his claim for these fees is two-fold. First, the face of the invoices contains no information at all as to what they related to.
[64] Second, the timeframes stated on the invoices do not match up with when he would have been suffering stress and the (non-specific) illness he claimed he suffered relating to the faulty cabin filter.
[65] The filter was replaced in January 2022, yet these invoices are dated well into the year. Mr Singh’s evidence, as recorded in the previous decision, was that the smell had 70% cleared up by the time of his earlier application.
[66] In relation to alleged stress brought on as a result of dealing with the matters raised in this current application, once again, these invoices appear to follow on quite quickly from the first decision, not the circumstances and events that Mr Singh was encountering with respect to the second application in which he says gave rise to stress.
[67] It may well be that Mr Singh consulted with his medical practitioner over stress in relation to the vehicle generally in July and early August however more likely, those consultations related to the events relating to the first hearing. I am fortified in my view about that aspect by the first decision itself which referred to evidence given by Mr Singh that he intended to consult with his GP. He offered that evidence in the first hearing in support of his claim for compensation for $10,000.
[68] As expressed above, this second application is not an opportunity for Mr Singh to relitigate his initial claim for consequential losses (that has already been dismissed). I am not satisfied that the medical invoices relate in any way to the second application or even that they would have related to the first application.
[69] For the foregoing reasons, Mr Singh has not proven this aspect of his claim on the balance of probabilities.

(c) Five days lost wages – $40 per hour = $1,000

[70] Mr Singh clarified in his evidence that this claim related to the earlier application.
[71] For reasons already canvassed in this decision, Mr Singh’s wish to relitigate aspects of the earlier claim cannot be the subject matter of this second application.
[72] I dismiss this aspect of his claim.

(d) Compensation for fuel and time wasted - $300

[73] This aspect of the claim related specifically to all fuel spent and time wasted in dealing with diagnosing the infotainment system and scrolling knob. The claim was expressed in such a way that it did appear that it involved some double up with the earlier claim, however, Mr Singh clarified during the hearing that this claim was additional to the other claims for time spent.
[74] I dismiss this aspect of the claim. Once again, there is nothing in the way of any documentary evidence substantiating or corroborating this claim. A claim for fuel expenses, could, by way of example, be supported by receipts, at the very least. None have been provided.

(e) Claim for $5,000

[75] Mr Singh has purchased another vehicle. The vehicle the subject of this claim is not being driven. He has obtained a valuation from Turner’s Cars which he says shows that the vehicle is currently worth $5,000 in its current condition and $8,000 if the vehicle was in retail condition.
[76] This aspect of the claim was presented in a somewhat confusing way. I mean that is no criticism of Mr Singh. It appears that Mr Singh claims $5,000 because he has not driven the vehicle (for which he paid $13,000) as a result of the circumstances leading to this second claim.
[77] Regardless of how the claim is formulated, it is trite that it must be proven that losses claimed are caused by a failure.
[78] There have been failures that have already been found by the Tribunal. However, had there been no failures, Mr Singh would still would have suffered a loss in depreciation of the vehicle because any vehicle, even without failures, is likely to suffer depreciation and loss in value over time. That lost value does not flow on from the failure.
[79] I dismiss this aspect of the claim. Mr Singh has not proven that this claim for loss, even if it could be substantiated, is loss that was reasonably foreseeable as a result of the earlier failures.

(f) Claim for unpaid invoice of $133.69.

[80] As stated above, Mr Singh claimed that this diagnostic invoice, rendered by Midas Te Aro on 5 May 2022, was forgotten by the Tribunal. This was incorrect because the decision makes it clear that he had confirmed during the hearing that the only unpaid diagnostic invoice was the Midas Te Aro invoice for $155.25.
[81] Regardless of whether or not Mr Singh was mistaken in his earlier evidence or not, as I made clear to Mr Singh during the course of the hearing, that was really a matter that related to the original hearing and, if he was unhappy with the outcome of the hearing, then he needed to appeal that decision. I cannot re-hear aspects of the first application simply because Mr Singh was unhappy with the outcome or wants to have a second go at that first claim.
[82] During the hearing, I asked NML whether it was prepared to pay that invoice, notwithstanding it had not been ordered to be paid and NML’s evidence was that it would only be paid if the Tribunal so ordered.
[83] The Tribunal cannot order that sum to be paid because that claim has already been dealt with and there was never any appeal lodged of the earlier decision.

The Midas Te Aro invoice for $617.00

[84] I am satisfied that this invoice was reasonably foreseeable to result from the failure and must be paid by NML to Mr Singh if it has not already been paid by the time of this decision.

Conclusion

[85] Mr Singh’s application for rejection is dismissed.
[86] NML must pay $617 to Mr Singh, if that sum has not already been paid, within 10 working days of the date of this decision.
[87] NML remains subject to the orders in the decision dated 5 July 2022.

DATED at AUCKLAND this 24th day of November 2022

D A Watson

Adjudicator

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[1] relating to a diagnostic invoice Mr Singh had paid Wellington European.

[2] [2022] NZMVDT 129.