Walker v Cargiant Ltd - Reference No. MVD 388/2022 [2022] NZMVDT 271 (14 December 2022)

Last Updated: 17 January 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 388/2022 [2022] NZMVDT 271 BETWEEN LESLEY RAIN WALKER Applicant AND CARGIANT LTD Respondent

HEARING at AUCKLAND on 8 December 2022 (by audio-visual link) MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator S Haynes – Assessor

APPEARANCES

L R Walker and H Walker, Applicants

C Kelleway for the Respondent

DATE OF DECISION 19 December 2022

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DECISION OF THE TRIBUNAL

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Lesley Rain Walker’s application is dismissed.

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REASONS

Introduction

[1] Lesley Rain Walker purchased a 2008 Honda Odyssey for $4,099 from Cargiant Ltd in March 2022. Ms Walker says that an engine warning light has illuminated, and the vehicle has entered limp mode on two occasions, so she has applied to the Tribunal for orders that Cargiant repair the fault that is causing those symptoms.

Relevant background

[2] Ms Walker lives in Nuhaka, in rural Hawkes Bay and wanted to purchase a vehicle for her mother. Ms Walker travelled to Cargiant’s premises in Auckland on about 9 March 2022 to purchase the vehicle. The vehicle’s odometer reading at the time of sale was approximately 154,600 km.
[3] On about 3 April 2022, the vehicle’s engine warning light illuminated and the vehicle went into limp mode. Ms Walker contacted Cargiant, which advised her to have the vehicle assessed by a local mechanic.
[4] Hawaiki Walker, Ms Walker’s father, then took the vehicle to Enterprise Motor Group Ltd in Gisborne for assessment. An invoice dated 1 June 2022 states that Enterprise Motor Group performed a diagnostic scan and found a P2646 fault code (or DTC) relating to the rocker arm oil pressure switch. The invoice shows that the vehicle’s odometer reading at that time was 156,417 km.
[5] Mr Walker says that Enterprise Motor Group then advised that the error code related to a “VVT oil issue” and would cost more than $2,000 to fix. Mr Walker says that Enterprise Motor Group told him that it had spoken to Cargiant and it had declined to fix the car.
[6] Croy Kelleway, a director of Cargiant, says that he spoke with the head mechanic at Enterprise Motor Group, who advised him that Enterprise Motor Group could not guarantee that its recommended repair would fix the underlying issue that caused the engine light to illuminate. Mr Kelleway says that he therefore declined to authorise any repairs without a confirmed diagnosis of the underlying cause of any fault.
[7] Enterprise Motor Group had cleared the fault code and engine warning light, so Mr Walker drove the vehicle home to Nuhaka. He says that a few days later the engine light returned, and the vehicle went into limp mode. The vehicle then sat unused until about mid to late October 2022.
[8] In the meantime, on 11 July 2022, Ms Walker contacted Cargiant and advised it that she considered that she had the right to have the vehicle repaired or to reject the vehicle under the Consumer Guarantees Act 1993 (the CGA). Ms Walker asked Cargiant to repair the vehicle. She says that Cargiant advised that it wanted to take advice before deciding how to proceed. By 29 July 2022, Ms Walker had received no response, so she filed this claim.
[9] The parties then discussed diagnosing any fault the vehicle may have. Ms Walker then jumpstarted the vehicle because the battery was flat due to the vehicle being unused for about three months. The engine light was not present at that time.
[10] On about 27 October 2022, Mr Walker then drove the vehicle to Crossroads Service Centre in Wairoa for assessment, at Cargiant’s expense. The engine warning light was not on and Crossroads Service Centre found no fault codes when it performed a diagnostic scan. Ms Walker and Mr Walker have continued to use the vehicle sparingly and, although they are concerned that the vehicle remains faulty, the engine light has not returned. The vehicle’s odometer reading is now 159,874 km.
[11] Although he is not satisfied that Ms Walker has proven that the vehicle has any ongoing faults that require repair, Mr Kelleway says that he advised Ms Walker that Cargiant would refund the purchase price if she returned the vehicle to it in the same condition as when it was sold.

The issues

[12] Against this background, the sole issue requiring the Tribunal’s consideration in this case is whether the vehicle has been of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA)?

Has the vehicle been of acceptable quality?

[13] Section 6(1) of the CGA provides that “where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality”.
[14] Acceptable quality is defined in s 7 of the CGA (as far as is relevant) 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.

[15] 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.
[16] I accept the evidence of Ms Walker and Mr Walker that the engine warning light has illuminated twice, causing the vehicle to enter limp mode. I found both to be clear and consistent witnesses and having no difficulty accepting their evidence.
[17] However, as the applicant, Ms Walker bears the onus of proving that it is more likely than not that the vehicle has an ongoing fault that means it is not of acceptable quality. Considering the evidence presented, I am not satisfied that Ms Walker has proven that the vehicle has an ongoing fault because the symptoms experienced by the Walkers have not returned since about June 2022, despite the vehicle being driven about 3,000 km in that time.
[18] The vehicle’s odometer reading when it was assessed by Enterprise Motor Group was 156,417 km. Mr Walker says that the warning light returned a few days later – by which time it is unlikely that the odometer reading would have been any higher than 157,000 km. The vehicle’s odometer reading is now 159,874 km, meaning the engine light has not returned in approximately 3,000 km of driving.
[19] Mr Haynes, the Tribunal’s Assessor, advises that a P2646 fault code and engine warning light can be evidence of a significant fault, including a faulty VVT unit, a faulty oil pressure sensor or incorrect oil pressure due to a blocked oil gallery or blocked oil pickup. However, Mr Haynes says that it is unlikely that any of these issues are present in this vehicle, as the engine warning light would almost certainly illuminate every time the vehicle is driven if any fault of this nature was present.
[20] Mr Haynes also advises that the fault code and warning light can be caused by less serious issues, such as a poor electrical connection due to a loose plug or dirty connector causing an intermittent communication error between the VVT unit and the engine control unit. However, Mr Haynes advises that it is also likely that if any fault of this nature was present, it would have arisen again in the approximately 3,000 km the vehicle has been driven since the warning light last appeared.
[21] Consequently, because there is no conclusive diagnosis of any underlying fault and because the engine light has not returned, I find that Ms Walker has not proven that the vehicle has any ongoing fault that would breach the guarantee of acceptable quality, and her application is dismissed.

B R Carter
Adjudicator