Marron v Grande Motors Ltd - Reference No. MVD 047/2023 [2023] NZMVDT 58 (11 April 2023)

Last Updated: 26 May 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 047/2023 [2023] NZMVDT 058 BETWEEN ANDREW MARRON Applicant AND GRANDE MOTORS LTD Respondent

HEARING at AUCKLAND on 4 April 2023 (by audio-visual link) MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator S Gregory – Assessor

APPEARANCES

A Marron, Applicant

V Tsykin for the Respondent

DATE OF DECISION 11 April 2023

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DECISION OF THE TRIBUNAL

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Grande Motors Ltd shall, within 10 working days of the date of this decision, pay $356.50 to Andrew Marron.

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REASONS

Introduction

[1] Andrew Marron purchased a 2010 Toyota Vanguard for $14,500 from Grande Motors Ltd on 14 September 2022. Mr Marron now seeks orders requiring Grande Motors to compensate him $713 for the cost of replacing the vehicle’s brake pads and machining the brake rotors.[1]
[2] Grande Motors denies liability for the cost of the brake repairs. It says that it replaced the brake pads and rotors before sale and again replaced the front brake rotors shortly after purchase following a complaint by Mr Marron.

Relevant background

[3] The vehicle’s odometer reading at the time of sale was 85,658 km. The vehicle was imported from Japan, and Grande Motors says that as part of the entry certification process, Fasttrack Automotive (which is an approved entry compliance certifier) replaced all the vehicle’s brake pads and rotors.
[4] Within two weeks, Mr Marron had become concerned that the vehicle was shuddering when driven uphill and a delay in acceleration from a standstill. Mr Marron returned the vehicle to Grande Motors on 29 September 2022. Mr Marron says that he was told by Grande Motors’ mechanic that there was a noise from the front brake rotors, which it replaced.
[5] Mr Marron continued to use the vehicle and by 1 February 2023, Mr Marron says that the vehicle was shaking or vibrating at speeds above 90 km/h. He had the vehicle assessed by Manukau Service Centre on 1 February 2023. Manukau Service Centre considered that the shudder might be caused by the throttle body, which it cleaned. Mr Marron paid $211.60 for this assessment.
[6] Mr Marron continued to use the vehicle, and the shudder returned, particularly after the brakes were engaged. Mr Marron says that he also noticed that there was excessive brake dust on the right front wheel and that wheel was much hotter than the others.
[7] On 5 February 2023, Mr Marron emailed Grande Motors. Vlad Tsykin, a Manager at Grande Motors, advised him that brake pads were a wear and tear issue, and that Grande Motors was not liable for the required repairs.
[8] On 7 February 2023, Mr Marron then paid $713 to Manukau Service Centre to replace the front and rear brake pads and machine the front and rear brake rotors. In an invoice dated 1 February 2023, Manukau Service Centre states that it found that the front brake pads were “binding up and shuddering” and the rear brake pads were “of a cheap aftermarket quality brake pad for the size of vehicle”. On the basis of that assessment, Mr Marron then filed this claim seeking to recover the repair cost.
[9] Grande Motors considers that the vehicle has been of acceptable quality, that brakes are a wear and tear item and that any problems with the vehicle’s brakes may have been caused by Mr Marron’s driving style.

The issues

[10] Against this background, 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 Marron entitled to under the CGA?

Issue 1: Has the vehicle been of acceptable quality?

[11] Section 6(1) of the CGA provides that “where goods are supplied to a consumer there is a guarantee that the goods are of acceptable quality”. “Acceptable quality” is defined in s 7 of the CGA (as far as is relevant) as follows:

7. Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

[12] 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.

The Tribunal’s Assessment

[13] Mr Gregory, the Tribunal’s Assessor, advises that the vehicle is likely to have had a partially seized right front brake caliper slider, which caused the right front brake pad to be in permanent contact with the brake rotor. When the vehicle was driven at higher speeds, the contact between the brake pad and rotor caused the rotor to overheat and warp over time, creating the shaking experienced by Mr Marron and the binding found by Manukau Service Centre. Mr Gregory also notes that the excessive brake dust observed by Mr Marron is consistent with the brake pad being in constant contact with the rotor causing excessive wear to the brake pad.
[14] I am satisfied that this issue was likely to have been present at the time of sale. The brake rotors were replaced at compliance, but Mr Marron complained almost immediately of a delay when accelerating from a standstill – consistent with brakes that are binding due to a partially seized caliper. The front rotors were then replaced, but there is no evidence to show that the caliper was unseized at that time.
[15] Mr Tsykin, who appeared for Grande Motors, queried whether the vehicle could then be driven for more than four months and 4,000 km with a partially seized caliper. Mr Gregory advises that it is entirely possible for a vehicle to be driven for that time and distance with a partially seized rotor and often the symptoms of such a fault will not become noticeable until the vehicle has been driven enough for the rotor to warp.
[16] I therefore find that the vehicle has not been of acceptable quality for the purposes of s 6 of the CGA because it was not as free of minor defects or as durable as a reasonable consumer would consider acceptable. The vehicle had a pre-existing fault with the right front brake caliper. That fault caused the right front brake pad to wear excessively and the right front rotor to warp to the extent that the front pads and rotors required replacement within four and a half months and 4,400 km of sale.
[17] Only the front brakes breached the guarantee of acceptable quality. Although Manukau Service Centre considered that the rear brake pads were of low quality, there is no evidence to show that the rear brakes were faulty or that any repairs were required.

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

[18] 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.

[19] In an email dated 5 February 2023, Mr Marron asked Grande Motors to rectify the brake fault. It declined to do so. Under s 18(2)(b)(i), Mr Marron was therefore entitled to have the fault remedied elsewhere and recover the reasonable cost from Grande Motors.
[20] Mr Marron was charged a total of $713 to replace the front and rear brake pads and to machine the front and rear rotors, but he is only entitled to recover the cost of rectifying the front brakes. As set out above, the evidence does not establish that the rear brakes were unacceptable, so Mr Marron cannot recover the cost of replacing the rear brake pads and machining the rear rotors.
[21] Based on the invoice from Manukau Service Centre, Mr Gregory advises that the cost of the front and rear brake repairs was identical. That being the case, I find that Mr Marron is entitled to recover $356.50, being half the Manukau Service Centre invoice.

Outcome

[22] Grande Motors shall, within 10 working days of the date of this decision, pay $356.50 to Mr Marron.

B R Carter
Adjudicator

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[1] When he filed this claim, Mr Marron also sought orders that Grande Motors replace the vehicle’s air conditioning pump. Grande Motors has now performed that repair to Mr Marron’s satisfaction, so I do not need consider that issue in this decision.