Bungard v Quay Cars 2008 Limited - Reference No. MVD 014/2022 [2022] NZMVDT 57 (8 April 2022)

Last Updated: 21 May 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 014/2022
[2022] NZMVDT 57

BETWEEN SPENCER BUNGARD

Purchaser

AND QUAY CARS 2008 LIMITED

Trader

HEARING at Christchurch on 31 March 2022
MEMBERS OF TRIBUNAL

D M Jackson, Barrister – Adjudicator
S Gregory – Assessor

APPEARANCES (via Microsoft Teams)

S Bungard, Purchaser
C Bungard, Brother of Purchaser
No appearance for the Trader

DATE OF DECISION 8 April 2022

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DECISION OF THE TRIBUNAL

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1. The purchaser’s rejection of the vehicle is upheld.
2. The trader shall, within 10 working days of the date of this decision, refund the purchaser $4,999.00.

100. Further, the trader shall, within 10 working days of the date of this decision, pay an additional $758.41 to the purchaser for consequential losses (and costs).

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REASONS

Introduction

[1] On 2 November 2021, Mr Bungard (“the purchaser”) bought a 2009 Toyota Corolla 2.0D Hatch registration EWC353 (“the vehicle”) from Quay Cars 2008 Limited (in Nelson) (“the trader”) for $4,999.00.
[2] There were a number of faults with the vehicle, which saw the purchaser reject the vehicle and return it to the trader. It appears from the written evidence and the correspondence between the parties that there was an agreement in principle to the purchaser’s rejection of the vehicle, with the consequence that the trader would refund the purchase price in full. For one reason or another the parties could not further agree the terms on which they were prepared to settle their dispute. Accordingly, the purchaser proceeded with this claim, not only for the refund of the original purchase price as agreed but also for consequential damage and losses sustained.
[3] The trader did not appear at the hearing, despite telephone and email requests that it do so through the Registry of this Tribunal. However, in an email dated 31 March 2022 at 12.34 pm, Mr Ryan Durry, managing director of the trader, confirmed that it would refund the purchase price but would not agree to pay any of the consequential damage and losses claimed by the purchaser. Rather, Mr Durry confirmed that the trader would abide the decision of this Tribunal on the evidence provided and would not appear therefore.
[4] Accordingly, there being no dispute as to the refund and return of the vehicle (that in fact has already occurred – the vehicle is in the trader’s possession), I determined to hear the purchaser’s claim for consequential damage and losses by way of a formal proof hearing, and having had the benefit of reading the purchaser’s written material and submissions in advance of the hearing itself.
[5] The sole issue therefore against that background is whether the purchaser is entitled to the consequential losses he seeks.
[6] I have had regard to s 18 of the Consumer Guarantees Act 1993 (the Act), which provides at subsection (4) for a consumer to obtain damages from a supplier for any loss or damage to the consumer resulting from the failure of the goods to comply with the guarantee, which loss or damage was reasonably foreseeable as liable to result from the failure.
[7] The purchaser sought approximately $1,500 and through his brother, C Bungard, indicated to the Tribunal that he would like time to submit further evidence for further or other costs incurred after the event. After a discussion, the purchaser determined to abandon his claim for any additional costs incurred and to focus his claim for consequential damage on those costs immediately incurred by him upon the failure of the vehicle.
[8] Those costs total $758.81 and are made up as follows:

• (a) The cost of towing incurred - $408.25.
• (b) Petrol - $100.30.
• (c) Petrol - $50.26.
• (d) Alternative vehicle hire in order to transport the vehicle - $150.
• (e) The filing fee of $50 paid on the filing of this claim.

[9] In the absence of any opposition or appearance from the trader and having regard to the purchaser’s careful explanation, both in his written material and before me, of the reasons why he incurred the costs claimed, I am satisfied that all of the abovementioned costs (a) to (d) are recoverable by the purchaser under s 18(4) of the Act. I consider that these costs resulted from the failure of the vehicle and plainly so. They are the costs of returning the vehicle to the trader in Nelson (noting the purchaser had to transport the vehicle (which was inoperable) from his rural location in Hyde to Dunedin in the first instance where the car was then loaded onto a vehicle transporter bound for Nelson). It follows that those costs were reasonably foreseeable as liable to result from the vehicle’s failure.
[10] I have determined that the filing fee ((e) above) is payable by the trader. I say that because the vehicle was returned to the trader on or about 1 December 2021. Despite the vehicle’s return, the purchaser complains that he heard nothing further from the trader, which forced his hand in bringing this claim (which he filed on 12 January 2022). It is only in recent days that the trader has reconfirmed its commitment to the refund. I also note that the trader failed to attend the hearing despite being on notice from the Registry of this Tribunal as to the possibility of a costs order being made against it (for non-attendance without good cause). For these reasons, the filing fee is payable by the trader for failing to attend the hearing of this claim without good cause (refer s14 Motor Vehicle Sales Act 2003). I have added the filing fee to the global sum awarded to the purchaser.

Conclusion

[11] Accordingly, the purchaser’s application upholding his rejection of the vehicle succeeds (of course this was not resisted by the trader which was confirmed to the Tribunal prior to the hearing commencing) and for the payment of the additional consequential damages and costs outlined above.
[12] The purchaser has proven that he incurred costs in returning the vehicle having rejected it and in that regard the Tribunal orders that the trader shall pay $758.81 (including costs) within 10 working days of the date of this decision to the purchaser.
[13] Further, for the avoidance of doubt within the same timeframe, namely 10 working days, the trader is to refund the purchase price in full and without deduction to the purchaser, noting that there is no need for an order for the collection of the vehicle, that having already been attended to by the purchaser as outlined above.

D M Jackson
Adjudicator