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Jamieson v Universal Imports 1998 Limited Reference No. MVD 330/2023 [2023] NZMVDT 239 (15 November 2023)

Last Updated: 19 January 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL
I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 330/2023
[2023] NZMVDT 239

BETWEEN BENJAMIN PETER JAMIESON

Applicant

AND UNIVERSAL IMPORTS 1998 LTD
Respondent





MEMBERS OF TRIBUNAL
D Watson, Adjudicator
S Haynes, Assessor

HEARING at Auckland on 2 November 2023 (by audio-visual link)



APPEARANCES
B Jamieson, applicant
R Jamieson, witness for the applicant
C Peck, witness for the respondent

DATE OF DECISION 15 November 2023

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

A Universal Imports 1998 Ltd must uplift the vehicle at its cost and at a time and date convenient to Benjamin Jamieson and remedy the fault that is causing a clunking on downwards gear shift within a reasonable time of the date of this decision.

B Universal Imports 1998 Ltd must pay the sums of $120.75 and $112.70 to Mr Jamieson within 10 working days of the date of this decision.[1]

C The application for rejection and all other claims are dismissed.

_________________________________________________________________

REASONS

Introduction

[1] Benjamin Peter Jamieson purchased a 1999 Nissan Avenir from Universal Imports 1998 Ltd (UIL) on 25 March 2023 for $10,999. The vehicle had then travelled 211,500 km. Mr Jamieson wants to reject the vehicle because he claims that it suffers from a number of faults, in breach of the guarantee of acceptable quality pursuant to s 6 of the Consumer Guarantees Act 1993 (the CGA). He claims that despite being given the opportunity to repair, UIL has failed to do so. He also claims that the vehicle was advertised as having a full mechanical service but that cannot have taken place because otherwise the vehicle’s faults would have been picked up.
[2] UIL says that it has fixed all issues it has been asked to fix. It says that if there are any remaining issues it wants the opportunity to repair them.

The issues

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

Relevant background

[4] Mr Jamieson resides in Napier. He flew to Auckland on 25 March 2023 to first inspect the vehicle. He agreed to buy it on that date. The salesperson he dealt with, Mr John Baird, assured him that under the CGA he had three months to report any faults with the car. This seemed reasonable to him so he agreed to buy the vehicle.
[5] On the drive back to Napier, Mr Jamieson noticed the vehicle had a “poor transmission function” which worsened upon arriving in Napier. His evidence was that he noticed “flaring” between gears, increasing the engine's RPM with no resulting increase in speed. Also, he noticed that the downwards gear shift was heavy. He described the downward shift as “quite violent” and says this involved both a clunking noise and feeling. His father, Mr Rick Jamieson, gave evidence on his behalf at the hearing.[2] He also confirmed the clunking and flaring symptoms.
[6] Mr Jamieson had the vehicle inspected in Napier by HB Transmission Specialists Ltd. It noted the following on its report, under the heading “Description of work carried out”:

R/test – confirm flare into 3 and 4.
Drain oil + found oil contaminated with metal
Requires O/H to assess further.

[7] Mr Jamieson sent Mr Baird a copy of this report. Mr Baird agreed “to fix the problem”.
[8] There were then discussions as to who would meet the cost of bringing the vehicle back to Auckland for repairs, it was agreed the parties would each meet half of the delivery cost. According to Mr Jamieson it was also agreed that UIL would obtain a fresh warrant of fitness (WOF) for the vehicle and that it would remove the rust that Mr Jamieson’s father had noticed around the windscreen.
[9] Around the beginning of April 2023, the vehicle was transported back to Auckland. Mr Jamieson’s evidence is that there was a telephone discussion between himself and Mr Andrew Peck, the director of UIL shortly after the vehicle was received by UIL. According to Mr Jamieson, the parties clarified and discussed the vehicle’s faults, being “flaring between gears” and “a bad clunk between gears”. Mr Jamieson said he wanted both problems fixed. Mr Rick Jamieson and his wife also joined in on this phone call, which was on speakerphone, and Mr Rick Jamieson confirmed that both issues were raised as well as the rust around the windscreen.
[10] From there, Mr Jamieson regularly followed up with UIL for updates but would simply be told that work was being done on the vehicle. At one point he was told that a specialist had found a leak from the torque converter and that extra time would be needed to source parts for that.
[11] An invoice from Hann Automotive dated 13 June 2023 was produced and it records that during this time it removed and fitted a new transmission into the vehicle and replaced the transmission fluid at a cost to UIL of $1,640.26. Its invoice also recorded:

Trans cooler in radiator blank off previously.
Transfer case slight weep.
P/S belt loose
Mounts worn
Slight engine leaks
Trans was water contaminated
Battery dead

[12] Eventually, UIL told Mr Jaimeson that the vehicle was now repaired and was finally ready to be taken for its new WOF.
[13] Unfortunately, the vehicle failed its WOF for faults related to the power steering belt and rust around the bonnet hinges. UIL said it would repair these faults.
[14] On 22 June 2023, UIL told Mr Jamieson the vehicle was now ready to be collected, having had a new WOF and a fresh service.
[15] Mr Jamieson picked up the vehicle shortly thereafter and drove it back to Napier. He noticed that the flaring problem had gone away but the clunking was still there, on gear downshift. After arriving in Napier, the clunking between the gears became much more apparent. A few days later he then noticed a large leak coming from the windscreen.
[16] He contacted UIL and said he wanted a refund. Mr Christopher Peck, a sales manager for UIL who gave evidence at the hearing, said that it was normal for vehicles of this age to leak from the windscreen but that UIL would book it into a workshop for the windscreen to be replaced.
[17] The vehicle was taken to a local glass repair shop but a substantial amount of rust was located behind the windscreen and the repairer advised that it could not fit a new windscreen because of the extent of the rust. The photographs of that rust were provided to the Tribunal.
[18] At this point, Mr Jamieson again requested a refund, stating that the vehicle was now unsafe due to the extent of what he described as structural rust. UIL advised Mr Jamieson that it could still get the windscreen replaced and that it would be “arranging transport for the vehicle to be taken back up to Auckland and returned with a fresh windscreen.”
[19] That exchange was in the first few weeks of July 2023.
[20] The vehicle was then uplifted from the glass repair shop and taken somewhere for repairs by UIL. Mr Jamieson claims that this was not with his approval.
[21] The windscreen was repaired on or about 24 July 2023. An invoice was produced from Auckland Windscreen Services recording its replacement on that date at a cost of $437.
[22] The vehicle was returned to Mr Jamieson on 27 July 2023 who accepted its return.
[23] After getting the vehicle back, Mr Jamieson took it for a short drive and noticed that there was a rather violent clunk as the vehicle came to a stop. There was then another clunk when the vehicle changed down gears under acceleration.
[24] Mr Jamieson replaced the battery and noticed other smaller issues to do with the vehicle’s lights, the A/C controls and a sticky accelerator pedal. He did not appear to be pursuing those issues further.
[25] In the meantime, due to a problem with the battery life indicator being black not green, notified to UIL on 5 August 2023, Mr Jamieson was sent a new battery. Unfortunately it was the wrong model and he had to buy some shims to fit it into his vehicle.
[26] On 5 September 2023, he had the vehicle diagnosed by T M Autos Ltd in Napier. Its diagnosis was:

Right front axle seal leaking.
Right rear axle seal starting to weep.
Sump bung leaking.
No coolant in radiator, only water.
0.4v current draw in cooling system, needs coolant.
Battery drain from unknown source.
Clunk on downshift.
Rocker cover gasket leaking.

After inspection and considering other repairs already made (rust) We feel that this vehicle should not have a current WOF and was not fit for sale at time of last sale.

[27] The invoice for T M Autos Ltd records that the vehicle had then travelled 214,560 km. As at the date of the hearing, the vehicle had travelled about 214,700 km.
[28] Mr Jamieson took the vehicle for a WOF and the vehicle passed its WOF on 27 October 2023. This information was not initially disclosed to the Tribunal by Mr Jamieson until Mr Christopher Peck was giving his evidence and drew it to the attention of the Tribunal at that time.
[29] Regarding the rust issue, Mr Jamieson says that because the vehicle is double-skinned around the windscreen, he believes it is likely that rust has “got in” between the two facade layers and that rust will therefore keep coming back. Further, he believes that a dent on the roof of the vehicle, not repaired when the rust repairs were done, will have caused the rust problem in the first place.
[30] He claims that the vehicle ought to have had a full mechanical service, as was promised on UIL’s website about all of its motor vehicles, before the vehicle was supplied to him and that had it done so, all of the problems that he is experiencing would have been identified.
[31] Mr Jamieson says that the vehicle still has the following ongoing problems:

The position of UIL

[32] UIL’s evidence was given by Mr Christopher Peck. His evidence was that UIL was initially only asked to repair the flaring issue, not any additional rust issue, nor any clunking issue. He denies that there was any rust fault evident at that time. He relies on the fact that the vehicle had passed a new WOF after repair to the transmission, and had there been a problem with structural rust then the vehicle would not have passed a WOF.
[33] Regarding any dent in the vehicle, he has no memory of any dent and he maintains that Mr Jamieson has now got the benefit of some betterment because he has a brand-new windscreen.
[34] As to the clunking, Mr Peck said that he personally drove the vehicle when it came back to Auckland and he noticed no clunking at all. He does accept that it had a flaring fault at that time. He says the delay in repairing the flaring fault was due to the fact that this is an older vehicle and replacement transmissions are hard to come by.
[35] Regarding the clunking, he says that UIL wants the opportunity to repair this. The same applies to the battery. UIL’s response to the other issues that are raised by the T M Autos report is that they are to be expected in a vehicle of this age, price and mileage.

Issue 1: Was the vehicle of acceptable quality?

[36] 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.
[37] 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.

(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.

[38] 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 a purchaser’s subjective perspective.
[39] A reasonable consumer would understand that an older vehicle of this price and mileage can develop defects and require ongoing maintenance that can sometimes be unplanned and expensive to repair. They would also understand that a supplier’s obligations under s 6 of the CGA are finite and, at some point, the risk of the vehicle developing defects must transfer from the supplier to the purchaser. The point in time at which that risk transfers is determined with reference to the factors in s 7(1)(f) to (j) of the CGA.
[40] Before I go on to consider each alleged fault, I also record that it is for Mr Jamieson 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 oral 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 to assist the Tribunal in determining what the relevant facts are, what the necessary diagnosis might be and what events took place.
[41] I now turn to deal with each of the alleged faults.

The faulty transmission

[42] The evidence establishes that the vehicle has suffered from a transmission fault, causing flaring and requiring its replacement. Even with a vehicle of this age, price and mileage, the flaring problem should not have emerged so soon into Mr Jamieson’s ownership of the vehicle.
[43] The transmission fault that was caused by flaring meant that the vehicle was likely to have a pre-existing fault. It has meant that the vehicle failed the guarantee of acceptable quality set out in s 6 of the CGA because the vehicle was not as durable as would be expected by a reasonable purchaser.
[44] The flaring problem has not re-emerged and no further remedy lies for this particular fault.

The clunking issue

[45] The obligation is on Mr Jamieson to prove that the vehicle is suffering from a fault that breaches s 6 of the CGA.
[46] The first report obtained by Mr Jamieson makes no mention of any clunking, indeed it reports that the customer’s instructions were “assess – flare into 3rd”. I note that this is more consistent with UIL’s evidence, namely, that it was Mr Jamieson’s request that the flaring issue be addressed.
[47] The most recent report from T M Autos refers to a clunking on downshift but offers no diagnosis as to what might be causing the clunking. I am satisfied based on that report that there is a current fault that is causing a clunking on downshift. The question is what is causing that fault?
[48] Mr Haynes, the Tribunal’s Assessor[3] advises that a clunking noise could either come from an engine mount or component within the transmission. His advice is that replacement of the transmission would typically be expected to rectify any clunking, if indeed that clunking was coming from within the transmission. He advises that at the recent WOF check, the condition of the engine mounts would have been checked. This advice, which I accept, makes it difficult for me to conclude how the clunking is being caused. Mr Haynes adds that if the clunking is traced to an internal component of the replaced transmission (which is another possibility), that this could be an issue simply addressed under the warranty for that work.
[49] I am satisfied that there is a fault that is causing a clunking on downwards gear shift that amounts to a failure of the guarantee of acceptable quality. I find that a reasonable purchaser of a vehicle, even at this age, price and mileage would not expect to encounter such an issue at such an early point in their ownership of the vehicle.
[50] I am satisfied that this fault is proven from the time of its diagnosis by T M Autos. The fault that is causing the clunking on downwards gear shift has meant that the vehicle has not been as free from minor defects or as durable as would be expected by a reasonable purchaser.

Rust around windscreen / dent in roof / ongoing possibility of rust

[51] I am satisfied that the vehicle has had a faulty windscreen, due to the extent of rust surrounding it. A reasonable purchaser of this vehicle would not have expected to encounter such an issue so soon into their ownership of the vehicle. The condition of the rust around the windscreen has meant the vehicle has not been as free from minor defects or as durable as would be expected by a reasonable purchaser, and as such there has been a failure of the guarantee of acceptable quality set out in s 6 of the CGA.
[52] I find that no further remedy lies with respect to this issue. After the repair, the vehicle was accepted back by Mr Jamieson. Further, Mr Haynes advises that the vehicle has been competently repaired, based on the photographic evidence of the repair.
[53] With respect to the alleged dent, Mr Haynes advises that he is unable to discern any dent, as alleged by Mr Jamieson, but, noting Mr Jamieson’s concern that rust may reemerge because of the dent, advises that rust is more likely to enter a vehicle through a chip, rather than a dent. I am not satisfied there is adequate evidence of a dent, but more importantly, that such a dent will cause ongoing rust.
[54] In relation to the allegation of an ongoing rust problem, I note that the vehicle has now passed a further WOF. Any such issue would have been picked up on a WOF check. I find that Mr Jamieson has not proven any ongoing rust or structural rust fault with the vehicle.

The battery drain issue

[55] According to T M Autos, the battery is draining from an unknown source. Other than that notation on its report, there is no diagnosis put forward as to what may be causing this issue.
[56] This issue has only recently been raised and I am not satisfied either that there is adequate diagnosis as to what the problem is or that the problem represents a failure of the vehicle to comply with the guarantee of acceptable quality set out in the CGA.
[57] Mr Jamieson has not proven what fault is present or that any such fault has meant the vehicle failed the guarantee of acceptable quality.

Remaining issues raised by T M Autos

[58] I find that all of the issues raised by T M Autos that have not already been dealt with above are issues that are simply consistent with the vehicle of this age, price and mileage.
[59] A reasonable purchaser would expect to encounter the need for ongoing maintenance and existing wear and tear of its components mentioned in T M Auto’s report. This was a nearly 25-year-old vehicle with significant mileage. It has passed two WOF’s during its ownership. It is reasonable to expect that any additional faults would have presented themselves when the WOFs were obtained.
[60] I am not satisfied that there are any additional faults that breach the guarantee of acceptable quality under the CGA.

Issue 2: Did UIL fail to repair the faults within a reasonable time?

[61] Section 18 of the CGA provides:
  1. 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.

[62] In order for a purchaser to be able to reject a vehicle under the CGA, they must therefore show either:
[63] Although a supplier is obliged to rectify defects that breach the guarantee of acceptable quality, the consumer also has an obligation to prove that such defects exist before the supplier’s obligation to repair is triggered. Where diagnosis is proven, undertaking repairs can always be a little more difficult and time-consuming when the parties are located in separate parts of the country. Where a supplier is obliged to rectify a defect it is generally their decision as to how and where the defect is remedied.
[64] I have found that the faults that breach the guarantee of acceptable quality under the CGA were: the flaring issue, the clunking issue from the point at which it was diagnosed by T M Autos and the rusty windscreen.
[65] I find that the flaring issue was repaired and no further remedy lies as noted above.
[66] With respect to the clunking issue I find that this is proven from the point of T M Autos’ recent diagnosis. There was a conflict on the evidence as to whether Mr Jamieson specifically asked UIL to address this fault when the vehicle was first returned to it. I do not need to resolve that conflict because even if I found that this was a proven fault at that time and even if UIL had then been asked to address the clunking issue, I accept the advice of Mr Haynes that a reasonable repairer would have concluded that replacement of the transmission would likely have addressed any clunking as well as the flaring fault. On that basis, I would have concluded that UIL was entitled to a second opportunity of repair.
[67] My conclusion on this point is therefore that UIL has not been given an adequate opportunity of repair.
[68] Last, with respect to the rusty windscreen, I find that no further remedy lies here as noted above because the repairs of that issue were competent and I find that there is no evidence of any further fault.

Issue 3: Are the vehicle’s defects a failure of a substantial character?

[69] Under s 18(3) of the CGA, Mr Jamieson may reject the vehicle if its defects amount to a failure of a substantial character. A failure of a substantial character is defined in s 21 of the CGA:
  1. 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.

[70] Section 21(a) of the CGA relates to this case. The question I must answer 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 this vehicle, given its age, price and mileage.
[71] I remain unpersuaded that a reasonable consumer of this vehicle, fully acquainted with the true nature and extent of each of the faults I have found above 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 an opportunity to rectify those defects, particularly where the repairs are straightforward, and the defect is unlikely to return once repairs are effected.
[72] There is a basis, however, 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’”.
[73] As I have noted above, this was a nearly 25-year-old vehicle with significant mileage. These factors need to be considered and taken into account in reaching my decision. Although this vehicle has suffered a series of faults, I am not satisfied that a reasonable purchaser of this vehicle would have reached a point where they could say convincingly that they had no ongoing confidence in the reliability of the vehicle.
[74] The faults that this vehicle has had do not amount to a failure of a substantial character.

Issue 4: What remedy is Mr Jamieson entitled to under the CGA?

[75] The relevant remedies are set out in s 18 of the CGA, which provides:
  1. 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.

[76] I have found that there is an outstanding fault, being a fault that is causing a clunking on downwards gear shift.
[77] UIL must uplift the vehicle at its cost and at a time and date convenient to Mr Jamieson and remedy the fault that is causing a clunking on downwards gear shift within a reasonable time of the date of this decision. Mr Jamieson should note that the guarantees in the CGA apply to that repair as indeed any other repairs that are undertaken by a supplier. UIL indicated a general willingness to repair issues raised by Mr Jamieson and despite my finding above, it is to be hoped that it would nevertheless investigate and repair any battery drain issue as a measure of good faith.
[78] Mr Jamieson incurred charges to two mechanics with respect to this matter. The first was $120.75 to HB Transmission Specialists Ltd. If that sum has not already been reimbursed by UIL to Mr Jamieson then it must be paid within 10 working days of the date of this decision. The second charge was to T M Autos Ltd for the sum of $112.70. I am satisfied that this charge should also be reimbursed within 10 working days of the date of this decision. Both invoices amount to damages resulting from the failures I have identified above which were reasonably foreseeable as liable to result from the failure.

Issue 5: Has UIL engaged in conduct that breached s 9 of the FTA?

[79] Section 9 of the FTA provides:
  1. Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[80] The test for establishing a breach of s 9 was set out by the Supreme Court in Red Eagle Corp Ltd v Ellis:[5]

The question to be answered in relation to s 9 ... is ... whether a reasonable person in the claimant’s situation – that is, with the characteristics known to the defendant or of which the defendant ought to have been aware – would likely have been misled or deceived. If so, a breach of s 9 has been established. It is not necessary under s 9 to prove that the defendant’s conduct actually misled or deceived the particular plaintiff or anyone else. If the conduct objectively had the capacity to mislead or deceive a hypothetical reasonable person, there has been a breach of s 9. If it is likely to do so, it has the capacity to do so. Of course the fact that someone was actually misled or deceived may well be enough to show that the requisite capacity existed.

[81] Mr Jamieson alleges that in its advertising, UIL claims that all vehicles come with a full mechanical service. He produced some copied and pasted information from what appears to be a Trade Me listing in that regard but did not produce screenshots of the information from the actual Trade Me listing for this vehicle, taken at the time he was first inspecting the vehicle online and before he purchased it. His claim is that the vehicle ought to have had a full mechanical service before it was supplied to him and that had it done so, all of the problems that he is experiencing would have been identified.
[82] In the absence of evidence of the Trade Me listing relevant to this sale or other corroborating evidence, I am not satisfied that it has been proven that there was an advertisement placed containing this information about this vehicle, and that Mr Jamieson saw this information (and therefore relied on it) before he agreed to buy it. I cannot therefore be satisfied that it has been proven that UIL represented to him that this particular vehicle would have had a full mechanical service before he purchased it.
[83] More critically, however, nor am I satisfied that:
[84] I decline to make any finding that UIL has engaged in misleading or deceptive conduct.

DATED at AUCKLAND this 15th day of November 2023

D Watson
Adjudicator


[1] If not already reimbursed by Universal Imports 1998 Ltd to Mr Jamieson.

[2] I refer to the applicant as Mr Jamieson and his father as Mr Rick Jamieson where necessary in this decision.
[3] 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.

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

[5] Red Eagle Corp Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].

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