Sehdra v Vanz Motor Ltd - Reference No. MVD 446/2021 [2022] NZMVDT 36 (22 March 2022)

Last Updated: 24 April 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 446/2021 [2022] NZMVDT 36 BETWEEN MANU SEHDRA Applicant AND VANZ MOTOR LTD Respondent

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 16 March 2022 (by audio-visual link)

APPEARANCES

M Sehdra, Applicant M Bayona, Witness for the Applicant

V Casanillo for the Respondent

DATE OF DECISION 22 March 2022

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DECISION OF THE TRIBUNAL

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Manu Sehdra’s application is dismissed.

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REASONS

Introduction

[1] Manu Sehdra wants to reject the 2010 BMW 320i he purchased for $12,500 from Vanz Motor Ltd on 4 May 2021 because the reversing camera installed by Vanz Motor is defective, and Vanz Motor has failed to rectify that defect within a reasonable time. Mr Sehdra wants to recover the purchase price and the cost of purchasing an Autosure mechanical breakdown insurance policy (the MBI). Mr Sehdra also seeks a written apology from Vanz Motor, as he believes that he has been subject to racial discrimination.
[2] Vanz Motor says that it has tried to assist Mr Sehdra, without success. It also says that Mr Sehdra did not contact it until six months after purchase, meaning the reversing camera became faulty too long after purchase for it to have liability. It also says that Mr Sehdra has “ripped us off” by negotiating a discount on the purchase price and Vanz Motor has filed a “counterclaim”, under which it seeks compensation of $20,000 for harm it says was caused by a Facebook post made by Mr Sehdra. It also seeks an order that Mr Sehdra remove that Facebook post.

Relevant background

Pre-purchase events

[3] Mr Sehdra viewed the vehicle at Vanz Motor’s premises on 4 May 2021. He spoke with Vancliff Casanillo, a director of the company. Mr Sehdra says he asked Mr Casanillo whether the vehicle had a reversing camera. Mr Casanillo confirmed that it did, but after testing the vehicle found that the reversing camera did not work. Mr Sehdra says that Mr Casanillo agreed to ensure that the reversing camera worked by installing a display screen, so Mr Sehdra agreed to purchase the vehicle.
[4] The vehicle was then delivered to Mr Sehdra on 6 May 2021. The reversing camera was not working. On 10 May 2021, “Richard”, an auto-electrician, came to Mr Sehdra’s home and installed an aftermarket reversing camera screen, which is a unit fitted to the vehicle’s rearview mirror.
[5] Mr Sehdra says that, about one week later, when he adjusted the rear-view mirror, he noticed that the reversing camera screen was loose. Mr Sehdra was able to reattach it. Mr Sehdra says that the reversing camera screen then began to regularly work loose, and each time he would reattach it.
[6] On 14 November 2021, Mr Sehdra says that the reversing camera screen fell off and hit the dashboard, nearly causing him to crash the vehicle. The following day he took the vehicle to Vanz Motor to demonstrate the fault. This was the first time that Mr Sehdra contacted Vanz Motor about the problems he was having with the reversing camera.
[7] Mr Sehdra then made various attempts to have the faulty reversing camera screen diagnosed and repaired by Vanz Motor, without success. On about 22 November 2021, Mr Sehdra and Mr Casanillo then had a heated discussion, with Mr Sehdra advising Mr Casanillo that he was considering filing a claim in the “Consumer Court”. This upset Mr Casanillo, who considers that he was going beyond his obligations as a motor vehicle trader to assist Mr Sehdra. Mr Casanillo then made a reference to Mr Sehdra’s Indian heritage, which upset Mr Sehdra. Mr Sehdra then decided to reject the vehicle and filed this claim.

Post-claim discussions

[8] As required by the Tribunal, Mr Casanillo then contacted Mr Sehdra on 28 December 2021. WhatsApp messages between the pair show that:

• On 28 December 2021, Mr Casanillo offered to refund the purchase price and the $1,400 cost of the MBI if Mr Sehdra returned the vehicle in good condition between 29 and 31 December 2021. Mr Casanillo advised Mr Sehdra to contact Autosure to have the MBI policy transferred to Vanz Motor.
• At 8:55 am on 29 December 2021, Mr Sehdra advised Mr Casanillo that Autosure could not transfer the MBI policy to Vanz Motor, as it was a motor vehicle trader. Mr Casanillo then advised Mr Sehdra that it would not refund the price of the MBI but was still prepared to refund the purchase price. Mr Sehdra did not accept this offer and insisted that Vanz Motor refund the vehicle purchase price and the MBI cost.
• Later on 29 December 2021, Mr Sehdra then made a counteroffer, asking Vanz Motor to refund the purchase price and pay $700 towards the cost of the MBI. Mr Casanillo advised Mr Sehdra that he would speak to his lawyer and get back to Mr Sehdra.
• On 30 December 2021, Mr Sehdra contacted Mr Casanillo and asked when he could bring the vehicle in. Mr Casanillo responded, “We are running out of time..Will talk to you after new year..” No further discussions have occurred.

[9] On the mistaken belief that an agreement for the return of the vehicle had been reached, Mr Sehdra purchased a replacement vehicle for $2,600 on 30 December 2021. He now seeks compensation for costs he has incurred due to purchasing that vehicle.

The issues

[10] 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?

[11] 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.
[12] The expression "acceptable quality" is defined in s 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.

[13] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in s 7(1)(a)-(e) of the CGA as modified by the factors set out in s 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 Mr Sehdra’s subjective perspective.
[14] As the Applicant, Mr Sehdra bears the onus of proving his claim on the balance of probabilities. With respect to the allegation that the vehicle has not been of acceptable quality because of the condition of the reversing camera display, Mr Sehdra must show that the reversing camera has not been as free of minor defects, fit for purpose or as durable as a reasonable consumer would consider acceptable.
[15] He has not done so. The evidence presented by Mr Sehdra does not show what caused the reversing camera display to become detached in November 2021, or that the display was detached because of any inherent fault with the unit or the workmanship when the unit was installed. Mr Sehdra says that the display became detached because the wrong model was installed, but he provided no corroborative evidence to prove that.
[16] In the absence of any diagnosis or clear explanation of the cause of the fault, I cannot exclude the real possibility that the reversing camera display became detached because Mr Sehdra (or another user of the vehicle) incorrectly adjusted the mirror or that the mirror was bumped or hit, causing the reversing camera display to detach. Consequently, Mr Sehdra’s claim under the CGA is dismissed.

The claim for compensation for purchasing the replacement vehicle

[17] Mr Sehdra is also not entitled to any compensation for purchasing the replacement vehicle. As the WhatsApp correspondence between the parties shows, there was never a confirmed agreement between the parties for the return of the vehicle.
[18] Mr Casanillo’s initial offer to refund the purchase price and cost of the MBI policy was conditional on two events – the MBI policy being transferred to Vanz Motor and the vehicle being returned in good condition. When it became apparent that the MBI policy could not be transferred, Vanz Motor offered to refund the purchase price only. Mr Sehdra did not accept that offer and the parties were then unable to reach agreement.
[19] Nonetheless, Mr Sehdra proceeded to purchase a replacement vehicle. By doing so, he acted prematurely because he had not reached any agreement for the return of the vehicle. Consequently, any claim to recover compensation for purchasing that vehicle must also be dismissed.

DATED at AUCKLAND this 22nd day of March 2022

B.R. Carter
Adjudicator