Balaneji v Budget Car Auctions 2013 Limited - Reference No. MVD 290/2023 [2023] NZMVDT 209 (17 October 2023)

Last Updated: 4 December 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 290 / 2023 [2023] NZMVDT 209 BETWEEN IRAJ REZAPOUR BALANEJI Applicant AND BUDGET CAR AUCTIONS 2013 LIMITED Respondent

MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Cousins, Assessor

HEARING at Auckland on 10 October 2023 (in person)

APPEARANCES

I Balaneji, Applicant Andrew Choy, Witness for the Respondent

DATE OF DECISION 17 October 2023

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

A Budget Car Auctions 2013 Ltd (BCA) must, within a reasonable time of the date of this decision, arrange to uplift the vehicle at a time and date convenient to Iraj Balaneji and:

(a) repair the fault that is causing water ingress into the boot of the vehicle, and
(b) repair the fault that is causing moisture and multiple small water droplets within the tail lamp lens.

B The application for rejection is dismissed.

_________________________________________________________________

REASONS

Introduction

[1] Iraj Rezapour Balaneji purchased a 2013 Subaru hybrid vehicle from Budget Car Auctions 2013 Ltd (BCA) on 8 April 2023 for $18,465. The vehicle had then travelled 57,275 km. He wants to reject the vehicle because he claims it has suffered from a number of faults which fail the guarantee of acceptable quality in terms of s 6 of the Consumer Guarantees Act 1993 (the CGA).
[2] BCA says that it has repaired all faults that it has been asked to repair. It says it has not had the opportunity to repair or investigate any further issues with the vehicle that Mr Balaneji has only more recently discovered.

The issues

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

• (a) Has the vehicle been of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA)?
• (b) What remedy is Mr Balaneji entitled to under the CGA?

Relevant background

[4] Mr Balaneji took possession of the vehicle on 11 April 2023. On the journey home from BCA’s premises, he noticed a rattling noise from the left-hand side of the vehicle. Over the next day or so, he also noticed that the vehicle was very difficult to start. He contacted BCA, which agreed to take the vehicle back for repairs.
[5] Mr Balaneji returned the vehicle to BCA on 17 April 2023. The only issues he raised with BCA at that time were the rattle and the vehicle being hard to start.
[6] BCA had possession of the vehicle until 10 May 2023, during which time the vehicle went to two mechanics and Mr Balaneji had the use of a courtesy car.
[7] Mr Balaneji returned to uplift his vehicle on 10 May 2023. He noticed that whilst the rattling noise was resolved, the tyre repair kit and wheel wrench were now missing from his trunk. Mr Balaneji also observed that there was water in the spare tyre area.
[8] Mr Balaneji drew these matters to the attention of BCA, which said it would repair the water ingress issue overnight and find a replacement tyre repair kit and wheel wrench. The following day, BCA informed Mr Balaneji that it needed another day to conduct checks to ensure that the water ingress issue was resolved. BCA said it wanted to leave the vehicle outside under the rain to check for any water leakage.
[9] Mr Balaneji therefore returned to pick up the vehicle on 12 May. The missing repair kit and wheel wrench had now been replaced, but with non-original items. Mr Balaneji noticed a significant mileage difference of 217 km that appeared to have been driven whilst the vehicle was in the possession of BCA.
[10] Mr Balaneji left the premises of BCA with his vehicle that day but subsequently noticed that there were now new problems. These were as follows:

1. the wheels are not aligned,
2. the wiper blades are faulty,

100. there is condensation inside the backlights (taillamps), and

4. there are now exterior scratches on the car that were not there when he bought the vehicle.

[12] Mr Balaneji has also noticed that there still appeared to be water in the spare tyre area. He also remains unhappy about the fact that the original items in his trunk were not returned but were replaced with non-original items. At the hearing, he confirmed that the vehicle has not, since the repairs, suffered from a hard starting issue.

Mr Balaneji rejects the vehicle

[13] On 15 May 2023, Mr Balaneji emailed a letter to BCA, raising the alleged faults and stating that his preferred resolution was for a refund. The faults he raised were:

1. the excessive mileage used whilst the vehicle was with BCA for repairs,
2. replacement of the missing tyre repair kit and wheel wrench with non-original items

100. the ongoing presence of water in the spare tyre area,

4. the water condensation in the taillamps,
5. new scratches on the vehicle, and
6. the faulty wiper blades.

[11] On 17 May 2023, BCA replied, pointing out that this was not a new vehicle, but a vehicle with 10 years of age, wear and tear. It said that some marks would have been present at the time of sale. It offered, as a goodwill measure, to cut and polish the scratches and pencil touch them if needed. In relation to the tail lamp condensation and the wiper blades, it said it was more than happy to look at these as well.
[12] Mr Balaneji did not accept that proposal and filed a claim in the Disputes Tribunal. On 21 July 2023, the Disputes Tribunal transferred his claim to this Tribunal, being a specialist Tribunal.
[13] Mr Balaneji obtained an estimate from Pitstop dated 18 August 2023 for replacement of the wiper blades, replacement of the taillamps, undertaking a wheel alignment, replacing the brake pads and machining the rotors. The total amount estimated is $2,045.54.
[14] The Pitstop invoice does not contain any diagnosis or explanation as to why these repairs are required, it simply lists out the relevant items noted above.
[15] In relation to the brakes, Mr Balaneji’s evidence was that Pitstop verbally told him the brakes were not “working properly”. Mr Balaneji had noticed that when braking, the car would make a “loud noise”.
[16] Mr Balaneji (who has continued to drive the car throughout), also gave evidence that at higher speeds, he can feel wobbling from a wheel.
[17] Mr Balaneji disclosed in the hearing that some time after uplifting the vehicle from BCA on 12 May, he took it to a Subaru expert in Penrose for it to check if the rattle had been repaired. It confirmed that the rattle had been repaired but verbally told him the vehicle needed a wheel alignment. Mr Balaneji has not had a wheel alignment done.
[18] Mr Balaneji produced a photograph of the wheel arch and said it is a different colour from the rest of the car. He was unaware of this at the time of purchase.

BCA’s position

[19] I heard evidence from Mr Andrew Choy, the General Manager of BCA.
[20] BCA alleges that it has repaired all problems that it has been asked to fix and it wants the opportunity to investigate and undertake any further repairs that might be necessary. It says that it has not been offered the opportunity to do so and that no remedy is available to Mr Balaneji until it first is given an opportunity of repair.
[21] BCA says the vehicle was returned to it on 17 April, but that at that time Mr Balaneji was only complaining of a rattle noise from the front left-hand side of the vehicle and the hard starting problem.
[22] It says there were delays in undertaking the repairs, but that this was due to a number of factors. Diagnosing the rattle problem was difficult because the noise was so minor and no play was found in the front components. The vehicle first went to Smart Auto Centre which had undertaken the original compliance when the vehicle came into New Zealand. In the course of its investigations and diagnosis, numerous parts were replaced and tested, following a process of elimination in order to try and find the source of the problem.
[23] When BCA got the vehicle back from Smart Auto Centre, Mr Choy said that he could still hear a slight rattle. He decided to send it to Manukau Subaroo Specialists. It inspected the vehicle and recommended replacing the whole front left shock assembly, which it proceeded to do.
[24] In terms of the mileage that Mr Balaneji has complained was driven when the vehicle was in its possession during these repairs, BCA says the vehicle had to be taken for a thorough test drive in order to establish the source of the complaint, and that this was why the vehicle has driven this level of mileage.
[25] BCA says that delays were also contributed to by the mechanic’s existing workload and wait times for parts to arrive.
[26] BCA provided written reports from Smart Auto Centre and Manukau Subaroo Specialists relating to the work they undertook.
[27] The report from Smart Auto Centre records:

• Inspection on the hoist did not reveal any obvious faults.
• Vehicle taken for a test drive to investigate further (50 km zone) – could not hear any noises, would not fault the car. Escalated to Foreman.
• Job assigned to more experienced technician. Car taken for a thorough test drive (50 km zone and 100 km zone), established minor “knocking in left front” recommended to replace left front lower control arm bushes.
• Parts ordered.

[28] The report from Manukau Subaroo Specialists records:

Remedy minor suspension noise, hoist vehicle, inspect all lower arm bushes and sway bar links etc, no fault found, fit second-hand shock assy out of low mileage vehicle supplied by dealer, road test, all okay

[29] BCA emphasises the rattle complaint was minor and hard to detect. This extended the diagnosis because there had to be a process of elimination of various other possibilities, which all took time. It says that at no time did the issue present any safety issue or possible warrant of fitness (WOF) failure.
[30] During the process of repair, it replaced both batteries, despite the fact that it considered these had not failed. Additionally, it replaced the reverse camera, even although it did not consider this to be faulty.

The leak in the boot and the missing spare tyre kit and wheel wrench

[31] When Mr Balaneji complained about the water in the boot, BCA immediately agreed to undertake repairs. It sent the vehicle to a panel beater overnight. The panel beater replaced the seal around the boot. When BCA got the vehicle back, it took a further day to conduct its own tests on the vehicle by leaving it outside in the rain and also hosing it. These tests came up dry.
[32] In relation to the missing spare tyre kit and wheel wrench, it says that the parts that it replaced the missing items with were genuine Subaru parts, just not the original parts from this vehicle.
[33] BCA remains more than happy to investigate and diagnose the water leak, if this remains an issue. It wants a further attempt to investigate, diagnose and repair any fault that is causing water ingress into the trunk.

The taillights

[34] BCA contends that the taillamps have some “misting” and it is happy to replace them. It disputes that this misting amounts to condensation or that this would represent a current warrant of fitness (WOF) failure.

The brakes

[35] The first time BCA heard about any issue with the brakes was when it received the Pitstop estimate. It says that there has not been any formal diagnosis of an issue with the brakes but nevertheless it is willing to investigate and repair these if necessary. It emphasises that the vehicle has just been through compliance and has a WOF so says that this issue does not represent any WOF failure.

Scratches

[36] BCA says that this is a 10 year old vehicle and refers to the auction sheet produced when the vehicle was bought from Japan. Nevertheless, it is willing to buff out any scratches.

The wheel arch

[37] It says that this is a plastic item and that any discolouration might simply be because it needs some conditioning.

Further information relied upon

[38] The parties filed supporting information prior to the hearing. The Tribunal also relies on this information, which the parties confirmed during the hearing was true and correct.
[39] Mr Balaneji’s evidence was that the vehicle has travelled just under 60,000 km at the date of the hearing.

Issue 1: Was the vehicle of acceptable quality?

[40] 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.
[41] The expression "acceptable quality" is defined in section 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.

(2) Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.

(3) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) are those disclosed on a written notice displayed with the goods.

(4) Goods will not fail to comply with the guarantee of acceptable quality if—

(a) the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and

(b) the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.

(5) A reference in subsections (2) and (3) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.

[42] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in section 7(1)(a)–(e) of the CGA as modified by the factors set out in section 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 a purchaser’s subjective perspective.
[43] Before I go on to consider each alleged fault, I record that it is for Mr Balaneji to prove the facts giving rise to the faults on the balance of probabilities. He must prove that it is more probable than not that these facts exist. Bare oral assertions or evidence as to what someone else may have said can often be insufficient evidence. Corroborating documents such as invoices, videos, photographs and reports are often useful evidence to assist the Tribunal in determining what the relevant facts are, what the necessary diagnosis might be and what took place.
[44] I now turn to deal with each of the alleged faults.

The rattle from the front left hand side of the vehicle

[45] The evidence establishes that the vehicle had a minor rattle in the front left hand side of the vehicle at the time of sale. This has led to replacement of various parts including, ultimately, the left front lower control arm bushes and the front left shock assembly.
[46] Mr Cousins, the Tribunal’s assessor,[1] advises that the rattle from the front left-hand side of the vehicle was likely caused by a faulty front left shock assembly.
[47] The issue has not re-presented itself after the repairs and so most likely the repairs that were undertaken have remedied the fault.
[48] A reasonable purchaser of a vehicle of this age, price and mileage would not expect to encounter such a fault, so early on in their ownership of the vehicle, notwithstanding that it may have been minor in nature. This was an older hybrid vehicle but it had relatively low mileage and it cost Mr Balaneji $18,465. A reasonable purchaser of a vehicle of this age, price and mileage would expect to encounter the need for ongoing maintenance and repairs, potentially of an unplanned and expensive nature, but I am satisfied they would not expect to encounter this sort of fault so soon in their ownership of the vehicle.
[49] I find that the fault that has caused the rattle meant the vehicle was not as free from minor defects or as durable as would reasonably be expected by reasonable purchaser.
[50] No further remedy lies with respect to this fault, however, because the rattle problem has now been remedied. I accept that it took some time to diagnose and repair this issue but I also accept that there was a plausible explanation for that delay. Mr Cousins advises that diagnosing the cause of rattles can indeed be a process of elimination of other causes first. I also accept that there could be additional delays in obtaining parts once the source of the problem was known.

The hard starting

[51] The evidence establishes the vehicle was hard to start at the time of purchase. This issue has now been fixed by replacement of the batteries and has not re-emerged. At the time of purchase, it represented a failure of the guarantee of acceptable quality under the CGA. A reasonable purchaser of a vehicle of this age, price and mileage would not expect to encounter such an issue so soon after purchase.
[52] I find that the hard starting fault meant that the vehicle was not as free from minor defects or as durable as would be expected by a reasonable consumer, given the age, price and mileage of this vehicle at the time of sale.
[53] As with the minor rattle, there is no further remedy with respect to this fault because it was successfully repaired.

The missing tyre repair kit and wheel wrench

[54] I accept that the vehicle was originally supplied with a tyre repair kit and a wheel wrench and I find that these items were removed from the vehicle, most likely, when it was seen by either Manukau Subaroo Specialists or Smart Auto Centre.
[55] Section 28 of the CGA provides that, where services are supplied to a consumer, there is a guarantee that the services will be carried out with reasonable care and skill.
[56] I find that it was a breach of that guarantee for the vehicle to be returned to Mr Balaneji without these items.
[57] Section 32 of the CGA enables a consumer to request a remedy for failure to comply with a guarantee contained in s 28 of the CGA. Mr Balaneji requested that the items be replaced.
[58] I find that there is no further remedy available to Mr Balaneji because, on request by him for a remedy, these items were indeed replaced. There is no suggestion that the non-original items are not in working order or are not in good condition, indeed, BCA says they are Subaru items. I am satisfied that replacement with non-original items, provided they are in working order, does not amount to a refusal or failure to remedy the failure.

The wiper blades

[59] Mr Balaneji said he noticed this issue upon uplifting his vehicle on 12 May 2023. As noted above, the obligation is on Mr Balaneji to prove that this fault exists.
[60] The estimate from Pitstop for the replacement of wiper blades is not a diagnosis; it is simply an estimate for replacement of the wiper blades. Further, the Pitstop estimate was provided when the vehicle had travelled 59,000 km, approximately 1,700 km more than and several months after purchase.[2] Even if it amounted to a diagnosis, I am satisfied that after that length of time, wiper blade replacement is a wear and tear item, responsibility for which falls on the shoulders of the owner.
[61] I am therefore not satisfied that Mr Balaneji has proven that the wiper blades are in need of replacement or, if they were in need of replacement, that their current condition amounts to a failure of the guarantee of acceptable quality under the CGA.

Water in the trunk of the vehicle

[62] I am satisfied that when Mr Balaneji went to uplift his vehicle on 10 May 2023, there was evidence of water ingress into the trunk of the vehicle. I find that the presence of water in the trunk of this vehicle, so soon after purchase, has meant that the vehicle was not of acceptable quality. A reasonable purchaser of this vehicle would not expect to encounter this issue so early in their ownership of the vehicle.
[63] The evidence establishes that BCA undertook repairs of this issue between 10 May and 12 May 2023. When the vehicle was returned to Mr Balaneji, tests undertaken by BCA indicated that the problem had been fixed.
[64] Mr Balaneji says that the issue is ongoing but he has provided no expert diagnosis that corroborates that there is a fault and offers any diagnosis as to what is causing the problem. His oral evidence was that he has noticed further water in the trunk since uplifting the vehicle on 12 May. Although he has only provided his oral evidence, I am prepared to accept it, despite the paucity of corroborating evidence.
[65] I find that the ongoing presence of water in the trunk amounts to a failure of the guarantee of acceptable quality. A reasonable purchaser of this vehicle would not expect to encounter this issue so soon after purchase. I find that the vehicle has not been as free from minor defects and as durable as would be expected by a reasonable purchaser.

Water condensation in the taillight area

[66] Section 4-10-9 of the vehicle inspection requirements manual (VIRM) provides, under the heading “reasons for rejection” as follows:[3]

A lamp is insecure or, if a mandatory lamp, contains moisture in the form of large droplets, runs or puddles.

[67] Mr Cousins advises that he can see moisture within the taillamp lens and multiple small water droplets on the photographs depicting the taillamps. He advises that in its current form, the condition of the taillights would be considered borderline and would require, at minimum, a notation on the inspection record. He advises that, depending on the individual inspector’s view of whether a droplet was small or large, it may amount to a failure of a WOF.
[68] I accept the advice of Mr Cousins and find that the presence of the small droplets amounts to a failure of the guarantee of acceptable quality. If not remedied, this issue is only going to worsen and will, in due course, amount to a WOF failure.
[69] I find that the condition of the taillamps amounts to a failure of the guarantee of acceptable quality. A reasonable purchaser of this vehicle would not expect to encounter this fault so soon into their ownership of the vehicle. The vehicle has not been as free from minor defects or as durable as would be expected by a reasonable purchaser.

Scratches on the vehicle

[70] Mr Balaneji has pointed to the fact there are now new scratches on the vehicle.
[71] It is his obligation to prove that these scratches were not there at the outset. I have photos of scratches, but none comparing the same parts of the vehicle when it was purchased. As was submitted by BCA, this is a 10 year old vehicle and there would have been some scratches present at the time of purchase.
[72] I find that Mr Balaneji has not been able to prove that BCA caused further scratches to appear to the vehicle while it was in its possession. I have inadequate photographs or documentary evidence of the exterior condition of the vehicle taken at the time of sale.
[73] I note BCA’s offer to cut and polish these out. It is possible that offer will still stand after the decision is released, as a goodwill measure.

Mileage driven while the vehicle was being repaired

[74] Mr Cousins advises that it would normally be considered reasonable for a mechanic to take the vehicle for an extended test drive in an attempt to ascertain the cause of a rattle if it was not immediately apparent. That the vehicle had to be driven by the mechanics is corroborated by the reports they provided as referred to above. I am satisfied that in the circumstances, the mileage that has been driven whilst the vehicle was with BCA for repairs was not excessive.
[75] No remedy lies with respect to this complaint. I find that it was reasonable for the mechanics from Manukau Subaroo Specialists and Smart Auto Centre to test drive the vehicle, on the motorway if necessary, and I do not find the extent to which it was driven unnecessary.

The brakes

[76] Pitstop verbally advised Mr Balaneji that the brakes were “not working properly”. It has estimated the cost of machining the brakes and rotors.
[77] I find there to be a lack of any expert diagnosis as to what is actually wrong with the brakes. At the point at which Pitstop has provided its estimate, the vehicle had still only recently been through compliance and had a current WOF. The estimate provided by Pitstop was an estimate only. It contains no explanation as to what is wrong with the brakes.
[78] I find that Mr Balaneji has failed to prove on the balance of probabilities that there is any fault with the brakes that amounts to a failure of the guarantee of acceptable quality.
[79] As with the scratches above, it is possible that BCA will still make good on its offer to investigate this issue further and undertake repairs if necessary.

The wheel arch

[80] Mr Cousins advises that the bumper of this vehicle is made of plastic and is therefore made of a different substrate than the wheel arch. He advises that because the substrate is different, the same colour, when applied to the substrate, will sometimes appear a little different in appearance. He advises that any slight difference in colour is completely normal and that there is nothing to be worried about here.
[81] I accept his advice. In any event, on viewing the photographs, I cannot see any discernible difference between the colour of the wheel arch and the colour of the bumper. Not even Mr Balaneji noticed any difference in the colour at the time of purchase; he only noticed it when it was pointed out to him by Pitstop. If there is any difference in colour it is clearly barely noticeable. It would not amount to any sort of failure of the guarantee of acceptable quality and nor would there be any obligation on BCA to point it out at the time of sale.

Issue 2: What remedy is Mr Balaneji entitled to under the CGA?

[82] The relevant remedies are set out in s 18 of the CGA, which provides:

18. Options against suppliers where goods do not comply with guarantees

(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2) Where the failure can be remedied, the consumer may—

(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:

(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

(ii) subject to section 20, reject the goods in accordance with section 22.

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—

(a) subject to section 20, reject the goods in accordance with section 22; or

(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.

[83] Mr Balaneji wants to reject the vehicle, but he is only able to do so under s 18 of the CGA where:

1. the nature of the faults amounts to a failure of a “substantial character” (as defined in s 21 of the CGA), or
2. having been given a reasonable opportunity of repair, BCA has neglected or refused to repair.

Are the faults that I have found to be a failure of the guarantee of acceptable quality a failure of a substantial character?

[84] A failure of a substantial character is defined in s 21 of the CGA as follows:

21. 21 Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

[85] The question is whether the faults that this vehicle has, are such that a reasonable consumer, fully acquainted with the true nature and extent of the faults, would not have purchased the vehicle.
[86] I am not satisfied that a reasonable consumer, fully acquainted with the true nature and extent of the faults I have found to be present, would have declined to purchase this vehicle. Not all pre-existing defects are a failure of a substantial character. The Tribunal regularly encounters cases where vehicles are supplied with pre-existing defects. A common feature of those cases is that the purchasers are often prepared to allow the supplier to rectify those defects, particularly where the defect is unlikely to return once repairs are affected.
[87] There is a basis for the Tribunal to find, in certain situations, that a vehicle’s cumulative defects, taken together, can amount to a failure of a substantial character. In Cooper v Ashley & Johnson Motors Ltd,[4] the District Court found the purchaser in that case was able to reject a vehicle where there was an accumulation of minor defects amounting to a failure of a substantial character. The Court noted that a point will eventually be reached where the purchaser could say “convincingly that he or she has had no ‘confidence in the reliability of the vehicle’”.
[88] None of the faults I have found to be present have prevented Mr Balaneji from being able to drive the vehicle, indeed, he has been able to continue to drive the vehicle throughout without undertaking any further repairs himself. This case is not at all in the category of cases where I would be satisfied that a point has been reached that a reasonable purchaser would say “convincingly that he or she has no ‘confidence in the reliability of the vehicle’”.
[89] The faults that this vehicle has had do not cumulatively or individually amount to a failure of a substantial character.

Has BCA been given a reasonable time to repair and where it was, did it fail to repair?

[90] BCA took some time to remedy the rattle fault but I am satisfied that the period of time taken was still reasonable in the circumstances. No further remedy therefore lies with respect to that fault, as noted above. Likewise, I am satisfied that there is no further remedy available with respect to the hard starting problem, which has been repaired.
[91] BCA has also remedied the fault relating to the missing items within a reasonable time. No further remedy lies with respect to that fault.

Water ingress fault

[92] In relation to the water ingress fault, I am satisfied that BCA has not yet been given a reasonable opportunity of repair. Mr Cousins advises that this is the sort of fault that can take time to diagnose and repair and can involve elimination of other causes first. I note that when it undertook a hose test on 11 May 2023, the vehicle came up dry. On that basis, it was reasonable for it to conclude that the fault had been repaired at that time.
[93] Nevertheless, the fault has re-emerged and I am satisfied that it is reasonable for BCA to be given a further opportunity of repair.
[94] BCA must, within a reasonable time of the date of this decision, arrange to uplift the vehicle at a time and date convenient to Mr Balaneji and repair the fault that is causing water ingress into the boot of the vehicle.

The taillamps

[95] I have found that there is a fault with the vehicle’s taillamps. BCA has not yet been given any opportunity to repair this fault. It is an important part of the process under the CGA that a trader be given an opportunity of repair. I find that BCA must, within a reasonable time of the date of this decision, uplift the vehicle at a time and date convenient to Mr Balaneji and repair this fault.

[96] It follows that the application for rejection is dismissed.

DATED at AUCKLAND this 17th day of October 2023

D Watson
Adjudicator

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[1] Assessors are appointed by the Minister of Commerce and Consumer Affairs pursuant to s 88 of

the Motor Vehicles Sales Act 2003, having regard to the Assessor’s personal attributes, qualifications and skills, and knowledge of, or experience in, the different aspects of matters likely to come before the Tribunal. Assessors generally have significant expertise in technical matters that arise in claims before the Tribunal. Under cl 10 of Sch 1 of the Motor Vehicle Sales Act, an Assessor sits as a member of the Tribunal and has a duty to assist the Adjudicator in the determination of the claim, although the Adjudicator alone determines the claim. The duties of an Assessor are to: (a) sit with the Tribunal; and (b) act in all respects as an extra member of the Tribunal for the hearing of the application; and (c) act as an extra member of the Disputes Tribunal to assist in the determination of the application.

[2] Mr Balaneji may contend that he had only driven the vehicle for approximately 1400 km, not 1700 km because of the mileage driven by the mechanics. This does not however affect my finding which remains the same.

[3] In-service certification (WoF and CoF) – general vehicles – lighting.

[4] Cooper v Ashley & Johnson Motors Ltd (1996) 7 TCLR 407 (DC).