Selfe v Stadium Cars Limited Reference No. MVD 270/2023 [2023] NZMVDT 254 (29 November 2023)

Last Updated: 24 January 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 270/2023 [2023] NZMVDT 254 BETWEEN FRANCIS WILLIAM SELFE Applicant AND STADIUM CARS LIMITED Respondent

HEARING at CHRISTCHURCH on 20 September 2023 MEMBERS OF TRIBUNAL

D M Jackson, Barrister – Adjudicator S Cousins – Assessor

APPEARANCES

F W Selfe, Applicant S Hammond, Witness for the Applicant

N Begg, Acting Manager for the Respondent

DATE OF DECISION 29 November 2023

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DECISION OF THE TRIBUNAL

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A Mr Selfe’s application to reject the vehicle is dismissed.

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REASONS

Introduction

[1] On 5 November 2022 Mr Selfe purchased a 2019 Hyundai Kona from Stadium Cars Limited (Stadium) for $23,990. The vehicle’s odometer had 59,179 kms travelled at the time of purchase. The odometer now reads some 65,027 kms travelled.
[2] Mr Selfe applies to reject the vehicle. He no longer wants it due to a persistent and annoying noise, which despite his best efforts and complaints to Stadium, remains unresolved.
[3] Stadium resist Mr Selfe’s application and says that it has bent over backwards to accommodate Mr Selfe and to explore, find – and if accepting of fault – repair the cause of the noise. However, it says that whilst it can reproduce the noise, it cannot do so under normal operating conditions. Even then, it says the noise is so negligible that a reasonable consumer would not find it of concern. Stadium submits that it has no case to answer therefore. Stadium says Mr Selfe cannot prove the defect, let alone the cause of the defect.

The issues

[4] 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 Selfe entitled to under the CGA?

Issue 1: Did the vehicle fail to comply with the guarantee of acceptable quality?

[5] 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”.
[6] “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.

(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.

...

(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.

[7] 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.
[8] Mr Selfe and his witness, Mr Hammond, gave evidence of the noise, which they variously describe as a knock, “do do” or a clonk, which has a plastic ring to it. This appears to happen whenever the vehicle is turned right and/or hits a bump in the road on the right hand side of the vehicle. Specifically, Mr Selfe says this often happens when turning right at 40–50 kmph, and if an undulation is hit at the apex of the corner. This is more noticeable when only the driver is in the vehicle. Mr Selfe describes that he has experienced this most often when turning right from Bealey Ave onto Fitzgerald without braking.
[9] Mr Hammond, who is trade qualified, thought it was the shock absorber given the noise occurs while the driver is the only person in the vehicle and attempts to turn right. He agrees that generally, this happens when the vehicle is being driven at close to 40 to 45 kmph. It does not occur during a long turning manoeuvre but does occur during tight turning of the vehicle.
[10] The evidence is not disputed that the vehicle has been inspected by AA several times for Stadium and more recently by Gary Cockram Hyundai. The Hyundai specialist diagnosed the right front strut top hat as the cause of the noise and Stadium offered to replace the right front strut top hat at its cost. Stadium produced an invoice proving the works were carried out. I note that the invoice from Gary Cockram Hyundai states that after the repair “the noise seems to have improved but still present”. Gary Cockram Hyundai notes that after extensive road testing, the creak remains and concludes the “creaking is body isolated (body or seam creak)”. It says further labour and road testing may be required by a panel shop to isolate and fix the creak.
[11] Ms Begg has driven the vehicle and says that you have to be “actively listening” to hear the noise complained of. She acknowledged that she had heard the noise but only the once. She described it as a squeak. Ms Begg says the fault is not a warrant of fitness issue, does not affect the driveability of the vehicle and is not a safety issue at all.
[12] Mr Selfe disagrees and I understood him to argue, through Mr Hammond’s evidence, that there is an issue with the vehicle’s bodywork, whereby the spot welds may have let go, causing the creaking noise that he can still hear. Mr Selfe did not produce any evidence to corroborate what he said was a preliminary assessment of the vehicle by a repair certifier. This appears to be consistent with the conclusory comments in the Gary Cockram Hyundai invoice.
[13] Mr Cousins, the Tribunal’s Assessor, listened to the evidence and questioned the witnesses extensively as to the noise and the circumstances in which it could be heard. He agrees with Stadium that the noise is not a driveability issue, nor is it a safety or warrant of fitness concern. Whilst the Hyundai repair has improved (i.e., softened) the noise, it does not appear to have removed it altogether. Mr Cousins would not describe the noise as a defect or fault affecting the guarantee of acceptable quality.
[14] Mr Cousins explains that the noise is so minor in nature and so difficult to replicate it is likely a normal characteristic of the vehicle. The technicians working on the vehicle are unlikely to have been inspecting Mr Selfe’s specific noise as he was never able to replicate it for them or substantiate his concern in a tangible way to help direct their diagnosis. It is clearly a source of significant irritation to Mr Selfe but Mr Cousins advises that it is likely an acceptable characteristic of the vehicle during acute manoeuvrers. He opines that it may very well be the ABS activating to prevent wheel slip/skid, but notes that this is unconfirmed.
[15] A party bringing an application to the Tribunal has the burden of proof. That is the applicant must satisfy the Tribunal on the balance of probabilities, i.e., that it is more likely than not, that the vehicle has the defect or fault complained of.
[16] I agree with Mr Cousins. I am not satisfied that Mr Selfe has proven the noise to the requisite standard or that the creak, which appears to be there still, is a failure or breach of the guarantee of acceptable quality. I find that the creak is an idiosyncrasy of the vehicle during acute manoeuvres. I am not satisfied that a reasonable consumer would consider the occasional creak of the vehicle as it corners at speed or upon striking a bump at the apex of a corner to be unacceptable in terms of s 18 of the CGA.
[17] Mr Selfe has failed to discharge the onus on him to prove his claim and it therefore must fail. It follows that he is not entitled to a remedy under the CGA. Mr Selfe will be disappointed by this outcome I am sure but I cannot elevate the source of his irritation to the requisite level of breach required to prove his claim. I can only recommend that if the creak continues to annoy him that he approaches the manufacturer for help.

D M Jackson
Adjudicator