Haider v New Zealand Car Ltd - Reference No. MVD 213/2023 [2023] NZMVDT 158 (31 July 2023)

Last Updated: 27 August 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 213/2023 [2023] NZMVDT 158 BETWEEN SYED ZEESHAN HAIDER Applicant AND NEW ZEALAND CAR LTD Respondent

HEARING at AUCKLAND on 20 July 2023 (by audio-visual link) MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator S Haynes – Assessor

APPEARANCES

S Z Haider, Applicant N Mahmood, Witness for the Applicant

G Sidorovski for the Respondent

DATE OF DECISION 31 July 2023

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

Syed Haider’s application is dismissed.

_________________________________________________________________

REASONS

Introduction

[1] Syed Haider says that the tyres on the 2017 Toyota CHR he purchased from New Zealand Car Ltd (NZCL) in May 2023 are noisy. Mr Haider seeks orders requiring NZCL to replace the tyres and to compensate him for the cost incurred in diagnosing the tyre noise.
[2] NZCL does not believe that the vehicle makes any unacceptable noise. It says that the noise is extremely minor and that the tyres are safe and comply with warrant of fitness requirements.

Relevant background

[3] Mr Haider test drove the vehicle before purchase. He says that he noticed a “zoom zoom” or humming noise from the tyres at speeds between 40 km and 55 km per hour. Mr Haider says that he took the vehicle for a pre-purchase inspection and told the inspector about the noise from the tyres. The inspector checked the wheel bearings and found no issue. Mr Haider says that the inspector told him that the noise may be coming from the tyres.
[4] Mr Haider then spoke with Gorjan Sidorovski, the General Manager at NZCL. Mr Sidorovski told Mr Haider that the noise was due to the wet road and there would be no sound on dry roads.
[5] Mr Haider says that he then noticed the noise from the tyres on the day he purchased the vehicle on 12 May 2023. Mr Haider then returned the vehicle to NZCL on 22 May 2023 and test drove the vehicle with Mr Sidorovski. Mr Haider says that after driving for some time, Mr Sidorovski accepted that there was a noise from the tyres.
[6] Mr Sidorovski says that he has driven the vehicle and that the noise he noticed was “extremely minor” and only evident at particular speeds on smooth roads when no other traffic was nearby. Mr Sidorovski then told Mr Haider to take the vehicle to Ivan Motors to have the tyres rotated. Mr Haider says that he did so, but Ivan Motors refused to rotate the tyres. Mr Haider says that the mechanic test drove the vehicle and told him that the noise from the tyres was okay.
[7] Mr Haider again contacted Mr Sidorovski, who advised that Mr Haider could have the vehicle assessed by a different mechanic. Mr Haider then took the vehicle to Yellow Motors Ltd on 24 May 2023. A quotation dated 26 May 2023 states that Yellow Motors found flat spots on the tyres due to uneven wear. It rotated the tyres, but the noise remained. It also considered that the noise might because by worn wheel bearings.
[8] An Inspection Report from Yellow Motors dated 30 May 2023 goes further. In that report, Abdul from Yellow Motors states that the vehicle was making a noise that sounded like a wheel bearing noise. Yellow Motors checked the wheel bearings, and no fault was found. Yellow Motors then swapped the vehicle’s wheels with those from another vehicle, and no noise was present. Yellow Motors therefore thought that the vehicle’s tyres required replacement. Mr Haider was charged $287.50 for this assessment.
[9] I also heard evidence from Nasir Mahmood from Yellow Motors. Mr Mahmood is a warrant of fitness inspector and says that the tyres meet warrant of fitness requirements. However, Mr Mahmood says that he noticed that the tyres made a “rough” noise like the sound of a worn wheel bearing.
[10] Mr Haider has also had the vehicle assessed by Tony’s Tyre Service Ltd. A letter dated 29 May 2023. A letter from Warren Koekemoer, the Takanini Branch Manager, states that it found “miniscule flat spots” on the tyres, that “may be resulting in a noise frequency emitting which may sound like a bearing fault”.

The issues

[11] Against this background, the 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?

[12] 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”. “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.

[13] 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.
[14] Mr Haider paid $28,870 to purchase a six-year-old Honda C-HR with an odometer reading of about 13,500 km at the time of sale. Although the vehicle had low mileage, given its age a reasonable consumer should understand that the vehicle may have minor wear and tear issues that would not be present in a newer vehicle.
[15] I find that there is a minor intermittent noise from the vehicle’s tyres when it driven on certain road surfaces at speeds between 40 km and 55 km per hour. It is likely that the noise is caused by minor flat spots on the tyres.
[16] Mr Haynes, the Tribunal’s Assessor, advises that small flat spots can cause a cyclical humming noise as a described by Mr Haider. Mr Haynes also advises that flat spots can sound like the noise from a slightly worn wheel bearing, but a worn bearing that requires replacement would typically make a much louder noise than the noise reported from the vehicle’s tyres.
[17] Mr Haider has provided photographs of the vehicle’s tyres and the Tribunal agrees with Mr Mahmood’s assessment that the tyres meet all warrant of fitness requirements and remain safe.
[18] Considering the evidence presented, I am satisfied that Mr Haider has not proven that the vehicle fails to comply with the guarantee of acceptable quality. Although a reasonable purchaser of a vehicle of this price, age and mileage would have moderately high expectations as to the quality and functionality of such a vehicle, the CGA does not require that such vehicles must be perfect. Given the vehicle’s age, the minor nature of the noise from the tyres and the fact that the vehicle remains driveable and safe, I find that the condition of this vehicle is acceptable.
[19] Mr Haider’s claim is therefore dismissed.

B R Carter
Adjudicator