Hire Me Movers Limited v Monaco Motors Limited - Reference No. MVD 313/2022 [2023] NZMVDT 4 (16 January 2023)

Last Updated: 25 February 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 313/2022 [2023] NZMVDT 004 UNDER APPEAL BETWEEN HIRE ME MOVERS LIMITED Applicant AND MONACO MOTORS LIMITED Respondent

HEARING at CHRISTCHURCH on 27 October 2022 (by audio-visual link) MEMBERS OF TRIBUNAL

D M Jackson, Barrister – Adjudicator S Gregory – Assessor

APPEARANCES

L Cameron, Director for the Applicant

A Carr, Witness for the Respondent J Thompson, Director for the Respondent

DATE OF DECISION 16 January 2023

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

A Hire Me Movers Limited’s application to reject the vehicle is granted.

2. Within ten working days Monaco Motors Limited is to refund Hire Me Movers Limited the purchase price of $22,500.

100. Withing ten working days Monaco Motors Limited is to pay Hire Me Movers Limited $1,330 for consequential losses.

4. Upon payment of $23,830 Monaco Motors Limited may collect the vehicle from Hire Me Movers Limited (at its expense).

_________________________________________________________________

REASONS

Introduction

[1] On 19 March 2022 Hire Me Movers Limited (“the Purchaser”) purchased a 2012 Toyota Hiace Van from the Trader for $22,500.00. The vehicle’s odometer read 328,893 kms at the time of purchase and now reads 328,964 kms. It has largely sat at the Purchaser’s premises since purchase. There are problems with the vehicle, which the parties have fallen into dispute over. The Purchaser seeks a refund. The Trader refuses to refund the purchase price.

Relevant background

[2] Upon delivery of the vehicle, the Purchaser noticed its poor condition, that the clutch felt funny and that it did not sound right when driven. Upon a closer inspection, the Purchaser was disappointed with the vehicle’s general appearance and body work, its sliding doors were difficult to manoeuvre and noisy, the automatic door lock and hold at the bottom of the sliding doors was inoperable.
[3] The Purchaser was advised by its mechanic that the vehicle had a problem with its rear differential and the clutch was “stiff but spongy feeling”. These concerns were raised with the Trader. Extensive correspondence followed, which did not resolve the matter.
[4] On 2 June 2022 the Purchaser gave notice that it rejected the vehicle. The Trader disputes there are grounds to reject the vehicle and says, amongst other things, that the parties contracted out of the relevant legislation.

The issues

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

• (a) Does the Consumer Guarantees Act 1993 (the CGA) apply?
• (b) Did the parties validly agree to contract out of the CGA?
• (c) Has the vehicle been of acceptable quality for the purposes of s 6 of the CGA?
• (d) Has the Trader refused or failed to rectify the vehicle’s defects within a reasonable time?
• (e) What remedy is the Purchaser entitled to under the CGA?
  

Issue one: Does the Consumer Guarantees Act 1993 apply?

[6] The Trader points out that this vehicle, a Toyota Hiace van, was purchased by a business “Hire Me Movers”. The Trade submits the fact that the vehicle was purchased by a business means the guarantees in the Act do not apply.
[7] There are two possible ways that goods supplied to businesses, such as the Toyota Hiace supplied to “Hire Me Movers”, can be excluded from the Act's coverage. I will describe each of these ways in terms of its possible application to the facts of the present case.

Is the Purchaser, “Hire Me Movers” a consumer?

[8] The first way in which this transaction might be excluded from the Act's coverage is if “Hire Me Movers” was not a “consumer” under the Act.
[9] The definition of “consumer” is in s 2 of the Act:

consumer means a person who—

(a) acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption; and

(b) does not acquire the goods or services, or hold himself or herself out as acquiring the goods or services, for the purpose of—

(i) resupplying them in trade; or

(ii) consuming them in the course of a process of production or manufacture; or

(iii) in the case of goods, repairing or treating in trade other goods or fixtures on land

[10] None of the exclusions in para (b) of the above definition applies. The issue for consideration is, in terms of para (a), whether a Toyota Hiace such as that purchased by “Hire Me Movers”, is a vehicle “of a kind ordinarily acquired for personal, domestic, or household use or consumption”.
[11] In Nesbit v Porter, the Court of Appeal considered the use of the word “ordinarily” in para (a) of the definition of "consumer" in the Act.[1]
[12] The Court held that "ordinarily" means whether the good is acquired for personal, domestic or household use as a matter of regular practice or occurrence, or in the ordinary or usual course of events or state of things, and not merely as an idiosyncratic choice.[2] The Court of Appeal held that:[3]

It is clear from the definition of “consumer” that Parliament contemplated that goods can have several uses; that some buyers might acquire them exclusively for a business use, some exclusively for a private use and some might intend to use them for both. The definition covers under para (a) a person who acquires goods of a kind ordinarily acquired for private use, but in para (b) goes on to exclude such a person if the goods are actually acquired, or the purchaser holds himself or herself out as acquiring them, for any of the commercial purposes listed in subparas (i), (ii) or (iii). Paragraph (b) would be unnecessary if goods could fall within para (a) only if they were of a kind not ordinarily acquired for a commercial purpose.

[13] In Dallimore Motors Ltd v Everett, the District Court considered the same question in the context of a similar phrase used in the definition of "motor vehicle" in the Motor Vehicle Sales Act 2003 (the MVSA). That case was an appeal from a decision of the Motor Vehicle Disputes Tribunal regarding an Isuzu Bighorn diesel turbo.[4] The Court noted that, in considering the purpose for which a vehicle is ordinarily acquired, the definition in the MVSA does not use the words “principally” or “exclusively”, and nor does it use the word “normally”.[5] The Court considered that Parliament had not enacted a test based on "preponderance of purpose". Instead, the Court considered the correct test to be:[6]

If it is established that it is not out of the ordinary that vehicles of the particular kind are acquired for private purposes then one surely can confidently say that it is of a kind ordinarily acquired for those purposes....the test is perhaps – given that the vehicle is one which may be used for personal domestic etc use, - is it of a kind that is ordinarily (or commonly) acquired for that type of use?

[14] These decisions indicate that a vehicle can be of a kind ordinarily acquired for personal, domestic or household use as well as having a commercial purpose, as long as the personal, domestic or household use is not out of the ordinary or idiosyncratic for a vehicle of this kind.
[15] In my view, a Toyota Hiace is exactly the kind of vehicle that the Court in Dallimore Motors had in mind when it considered a vehicle that can have several uses. Even a vehicle which has a commercial purpose can also have a personal, domestic or household use as a matter of regular practice or occurrence. Indeed, Toyota Hiace vehicles are commonly used for a combination of commercial and domestic purposes. It cannot be said that use of a Toyota Hiace for personal purposes is an "idiosyncratic choice".
[16] Accordingly, I conclude that “Hire Me Movers” was a “consumer” in relation to its purchase of the Toyota Hiace.

Issue 2: Did the parties validly agree to contract out of the CGA?

[17] The second possible way in which this transaction could have been excluded from the Act’s reach is if the parties contracted out of the application of the CGA in relation to this transaction. The Trader argues that the Purchaser purchased the vehicle for business purposes and so the CGA should not apply.
[18] The circumstances in which parties are permitted to contract out of the guarantees in the CGA are set out in s 43. The general rule is that contracting out is prohibited. However, a limited exception is offered where the requirements of subss (2) and (2A) are met:

43. No contracting out except for business transactions

(1) Subject to this section and to sections 40, 41, and 43A, the provisions of this Act shall have effect notwithstanding any provision to the contrary in any agreement.

(2) However, despite subsection (1), parties to an agreement may include a provision in their agreement to the effect that the provisions of this Act will not apply to that agreement, provided that—

(a) the agreement is in writing; and

(b) the goods or services are, or (in connection only with the guarantee of acceptable quality in section 7A) the gas or electricity is, supplied and acquired in trade; and

(c) all parties to the agreement—

(i) are in trade; and

(ii) agree to contract out of the provisions of this Act; and

(d) it is fair and reasonable that the parties are bound by the provision in the agreement.

(2A) If, in any case, a court is required to decide what is fair and reasonable for the purposes of subsection (2)(d), the court must take account of all the circumstances of the agreement, including—

(a) the subject matter of the agreement; and

(b) the value of the goods, services, gas, or electricity (as relevant); and

(c) the respective bargaining power of the parties, including—

(i) the extent to which a party was able to negotiate the terms of the agreement; and

(ii) whether a party was required to either accept or reject the agreement on the terms and conditions presented by another party; and

(d) whether all or any of the parties received advice from, or were represented by, a lawyer, either at the time of the negotiations leading to the agreement or at any other relevant time.

[19] Subsections (2) and (2A) of s 43 were substituted for the former s 43(2), when it was repealed on 17 June 2014, to mirror the equivalent provision in the Fair Trading Act 1986.[7] The repealed former provision allowed a supplier to contract out of the provisions of the CGA in respect of “a consumer who acquires, or holds himself or herself out as acquiring...goods or services for the purposes of a business...”. The main differences between the pre and post-2014 amendment versions of s 43 are that, in the current provisions (as applied to motor vehicles):

• (a) The focus is now on whether the contracting parties are in trade and the vehicle was supplied and acquired in trade, rather than the old focus on whether the consumer acquired (or held their self out as acquiring) the vehicle for business purposes.
• (b) The agreement must always be in writing and the Tribunal needs to specifically consider whether the parties agreed to contract out of the CGA.
• (c) The Tribunal has to assess whether it is fair and reasonable that the parties are bound by the contracting out provision in the agreement, taking into account the factors in subs (2A).

[20] The agreement is written, is dated 19 March 2022 and is called a “Purchaser’s Offer and Agreement”. It is signed by Ms Cameron for the Purchaser and Mr Thompson for the Trader.
[21] There is no dispute that both parties are in trade. The Purchaser is a family run moving company.
[22] The agreement records that the signatory acknowledges receipt of the agreement and agrees to all of its terms.
[23] Clause 7 reads as follows:

“Consumer Guarantees Act 1993: The Act, applicable to this agreement, provides the purchaser the rights and remedies on the sale of the used motor vehicle of a type acquired for personal use. I agree that if I am acquiring the vehicle for business purposes in terms of sections 2 and 43 of the act and the provisions of the act will not apply”.

[24] I consider clause 7 is a contracting out clause.
[25] Next, I turn to consider, in terms of s 43(2)(d), whether it is fair and reasonable that the parties be bound by their written agreement to contract out of the CGA. I will refer to each of the factors set out in subs (2A) (above).

The subject matter of the agreement

[26] The subject matter of this agreement is a large van without passenger seating in the load area. This is a vehicle that is not ordinarily acquired for personal, domestic or household use but, as I have determined above, it is a vehicle which may have a number of both commercial and domestic or household uses.

The value of the goods

[27] The Purchaser paid $22,500 for the vehicle. The Purchaser described the price of the vehicle as being high and said that its price and the way the vehicle was advertised gave it comfort that it was a quality vehicle, even if one with comparatively high mileage. The Purchaser paid cash for the vehicle. On balance I consider the value of the goods to be a neutral factor in determining whether it is fair and reasonable that the CGA is excluded.

Respective bargaining power of the parties

[28] This was a transaction which was negotiated online, and by email.
[29] Ms Cameron’s evidence is that she was not advised at all as to the contracting out provision of the contract, it was not drawn to her attention at any stage and she did not initial the clause. She gave evidence that she was unaware of the CGA and what rights or protections it afforded consumers.
[30] Whilst Ms Cameron may be unaware of the CGA and its consumer protections, she struck me as an experienced and competent businesswoman, who was purchasing a vehicle for the family business. Ms Cameron gave evidence which indicated that she was robust and experienced in commercial affairs, in managing her family business and in the sale, purchase and use of Toyota Hiace vans, which she described as great workhorses. I find accordingly that the Purchaser was able to negotiate the terms of the agreement without disadvantage.
[31] Next, I must consider whether the Purchaser was required to either accept or reject the agreement on the terms and conditions presented by the Trader. The fact that a party is required to either accept or reject the agreement on the terms and conditions presented by another party, as in the present case, is a relevant ‘circumstance of the agreement’ that the Tribunal must take into account, under s 43(2A)(c)(ii). There was no evidence to convince me that the clause was drawn to Ms Cameron’s attention other than that it appeared on the face of the contract itself.
[32] Generally, I also observe that the current provisions relating to contracting out, in effect since s 43(2) & (2A) were amended on 17 June 2014, do not lend themselves to boilerplate, opt-out clauses of the type the Trader attempted to rely on in the present case. Section 43(2)(a), (c) & (d) suggest that contracting out will ordinarily require a specifically negotiated provision that is tailored to the particular circumstances, accompanied by legal advice where that is appropriate. Where a boilerplate clause is used, where legal advice is not taken, there should be clear evidence to show that the Purchaser has understood the effect of the exclusion clause and has freely agreed to its inclusion after negotiation. There is no evidence to that effect here.

Other relevant circumstances

[33] The list of matters in subs (2A) is not exclusive. It is open to the Tribunal to consider additional relevant factors, consistent with the consumer protection purpose of the CGA, in determining whether it is fair and reasonable that the parties are bound by the exclusion clauses. I consider that the sale being conducted at a distance is a relevant circumstance, which tends to support the Purchaser’s claim that it was not made aware of the contracting out clause, when it ought to have been. That the Purchaser is a commercial party is not enough therefore to see the contracting out clause apply.

Conclusion

[34] I conclude that it is not fair and reasonable that the parties are bound by the contracting out provisions in the VOSA. This means I am able to proceed to consider the Purchaser’s claim under the CGA.

Issue 3: Did the vehicle fail to comply with the guarantee of acceptable quality?

[35] 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”.
[36] “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.

[37] 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.
[38] The Purchaser of a $22,500, ten-year-old Toyota Hiace with an odometer reading of 330,000 kms should have realistic expectations as to its quality and durability and should understand that the vehicle is likely to have pre-existing defects consistent with its age and mileage.
[39] The Purchaser had the vehicle assessed by two mechanics and relied on the following resume of defects, some major, some minor:

• Clutch – hard to operate, probability that clutch is in need of repair/replacement.
  
• Gearbox has whirring noise when in neutral.
  
• Differential is noisy and grinding, needs replacement.
  
• Both sliding doors, rollers crunchy and need replacing, doors hard to open and close.
  
• Both side door rubber seals need replacing.
  
• Left rear tyre excessive wear.
  
• Rear tyres on same axle non-matching tread patterns.
  
• Spare wheel is missing.
  
• High stop brake light working intermittently.
  
• Rear passenger tail light bulb not working.
  
• Front shock absorbers’ rubbers excessive play, need replacing.
  
• Both outer tie rod ends excessive play.
  
• Both inner steering rack ends excessive play.
  
• Serpentine belt cracks.
  
• Suggest replacing cambelt as no evidence of this being done despite high mileage.

[40] These defects were verified by written evidence supplied by the two mechanics. Other criticisms included poor panel beating repairs and poor paint work overall. One repairer estimated the cost of fixing these items to be in excess of $10,000 plus GST.
[41] The Purchaser says that viewed in isolation or otherwise together as a whole, these faults breach the guarantee of acceptable quality.
[42] The Trader did not pull any punches in its defence. It says the Purchaser’s claim is fraudulent and contrived. That is, the vehicle left its yard with a fresh warrant of fitness and in good condition. It said:

1. Ms Cameron bought the claim to its attention several weeks after the car was sold;
2. Ms Cameron claims the Purchaser did not use the vehicle to find these issues sooner, hence its slow contact with the Trader;
3. It arranged for a mechanic to call Ms Cameron to inspect the vehicle and repair if necessary but Ms Cameron ignored their calls;
4. Ms Cameron expects the Trader to make an uninformed decision as to repair, without having its trusted supplier’s opinions and advice;
5. Once it didn’t pay Ms Cameron any requested money, she found more “faults”, presenting the repair quote referred to above;
6. Its mechanics have confirmed none of these issues were present at the time of the inspection and if so, they would not have issued the Warrant of Fitness;
7. Ms Cameron advised the Trader she has her own hoist and workshop on site at her home, where the vehicle was delivered to;
8. Ms Cameron advised the Trader she has several other of the same vans;
9. It suspects foul play and that the parts have been swapped over at the Purchaser’s home workshop using parts from other vans.

[43] It says both its director, Mr Carr, and its salesman, Mr Thompson have driven the vehicle with no issues. They say it was not in the state complained of when it left the yard. They suspect Ms Cameron to have switched over parts. I record that there is no evidence at all to support such a sweeping and serious allegation as that made on behalf of the Trader. It goes further to suggest that the mechanics’ evidence is bogus or contrived to support the Purchaser.
[44] It says it was deprived of the opportunity to inspect the vehicle, despite arranging to have a nearby relative attend on the Purchaser and inspect.
[45] The Trader says it offered to buy the vehicle back from the Purchaser, and informed Ms Cameron that upon its return, it will return to the mechanic who issued the warrant, and if there is any evidence of parts being swapped and so on, that it would seek to recover those costs from the Purchaser.
[46] The Trader defends its mechanic (which issued the warrant of fitness) and says it is not in the mechanic’s best interests to issue unjustified warrants of fitness.
[47] Ms Cameron denied any suggestion of wrongdoing on her part, was affronted by the allegations of dishonesty and said she had never heard from the Trader’s mechanic as alleged. She is appalled by her treatment by the Trader and the attack on her name and reputation. Rather, Ms Cameron views the defences raised as a ruse to delay settlement or to cloud the problems she has experienced with the vehicle.

Assessment

[48] Ms Cameron gave evidence that a Toyota Hiace is a renowned model for durability and mileage. She said that it is not unheard of these vehicles travelling close to one million kilometres. On that basis, she submitted that the vehicle’s mileage was not high and was “barely run in”. Whilst Mr Gregory, the Tribunal’s Assessor, would not agree that the vehicle was barely run in, he did agree that this is a model which is durable.
[49] However, any vehicle which is ten years old and which has driven hundreds of thousands of kilometres is going to have its faults, some of which will be expensive to repair. That said, Mr Gregory, the Tribunal’s Assessor considered and I agree that the following defects did breach the guarantee of acceptable quality:

1. Clutch – hard to operate, probability that clutch is in need of repair/replacement (likely the clutch assembly pressure plate);
2. Gearbox has whirring noise when in neutral (likely the transmission input shaft bearing);
3. Differential is noisy and grinding, needs replacement;
4. Both sliding doors, rollers crunchy and need replacing, doors hard to open and close (essential on a working van);
5. Rear tyres on same axle non-matching tread patterns (a warrant of fitness (“WOF”) failure);
6. Spare wheel is missing;
7. High stop brake light working intermittently (WOF failure);
8. Rear passenger tail light bulb not working (WOF failure);
9. Front shock absorbers’ rubbers excessive play, need replacing (WOF failure);
10. Both outer tie rod ends excessive play (WOF failure);
11. Both inner steering rack ends excessive play (WOF failure).

Issue 4: Has the Trader refused or failed to rectify the vehicle’s defects within a reasonable time?

[50] Section 18(2)(b)(ii) of the CGA enables a consumer to reject goods where a supplier has been required to remedy a failure but refuses, fails or does not succeed in doing so within a reasonable time.
[51] Section 18 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.

[52] The timeline produced by the Purchaser records that contact was made in late April to complain. Over the next two or so months, the parties exchanged text message or email correspondence, which I have reviewed. Throughout this exchange the Trader attempted to blame the Purchaser for the condition of the vehicle or to deny fault. Whilst there is reference to the Trader arranging a mechanic to inspect the vehicle, that never occurred. Ms Cameron lost her patience and rejected the vehicle. It was only then that the Trader emailed to say that it was sourcing a rear differential for the repair required. Further discussions followed, which also saw the Purchaser obtain further evidence to verify its allegations of faults with the vehicle. Those discussions came to nothing.
[53] I am comfortably satisfied that the Trader both refused and failed to inspect the vehicle or to rectify its defects within a reasonable time. I find the Trader kept the Purchaser at arm’s length and did not engage properly with the Purchaser or its concerns. The Purchaser lost patience and rejected the vehicle, which it was entitled to do.

Issue 5: What remedy is the Purchaser entitled to under the CGA?

[54] The relevant remedies are set out in s 18 of the CGA, set out above.
[55] The Purchaser gave the Trader an opportunity to repair within a reasonable time, which it did not take. It follows that the Purchaser was entitled to reject the vehicle. Further, I am able to compensate the Purchaser under s 18(4) for its consequential losses incurred, which are the costs to it of obtaining evidence to verify its concerns. These are a consequence of the breach, and of the Trader’s refusal to listen to the Purchaser’s concerns, which concerns were valid.
[56] The Purchaser incurred a $1,000 shipping cost for the vehicle and $330 in mechanics’ fees for the inspections and evidence provided in support of its claim. I will order that those are reimbursed to the Purchaser.
[57] I record that regardless of my findings as to the Trader’s failure or refusal to repair within a reasonable time, I consider the Purchaser has grounds to reject the vehicle in light of its accumulated defects (as identified and explained by Mr Gregory in paragraph 38 above), which caused it to lose confidence in the ongoing reliability of the vehicle.
[58] There is a basis for such a finding. In Cooper v Ashley & Johnson Motors Ltd,[8] the District Court noted that a Purchaser may reject a vehicle where there has been an accumulation of minor defects that amount 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’”. I consider the same reasoning applies to the defects and facts of this case and rejection would be justified under s 18(3) too.
[59] S 18(3) reads “where the failure cannot be remedied or is of a substantial character within the meaning of section 21”. The grounds under s 21 include s 21(a) “the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure”. I find s 21(a) to be engaged here. The reasonable consumer would not have acquired this vehicle had it be acquainted with the nature and extent of the failures identified, even if they are, viewed in isolation, minor. A reasonable consumer could rightly say that it has no confidence in the reliability of the vehicle.

Orders

[60] Accordingly, I order that within ten working days of the date of this decision the Trader is to refund the purchase price of $22,500 to the Purchaser. Further, within the same ten working day period the Trader is to pay consequential losses to the Purchaser of $1,330.

D M Jackson Adjudicator

This decision has been appealed. The outcome of that appeal was unknown at the date of the publication of this decision.

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[1] Nesbit v Porter [2000] NZCA 288; [2000] 2 NZLR 465 (CA).

[2] At [29].

[3] At [26].

[4] Dallimore Motors Ltd v Everett DC Auckland NP4945/98, 7 July 1999.

[5] At 15.

[6] At 15.

[7] Consumer Guarantees Amendment Act 2013, s 13.

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