Stronge v Autobase Enterprise Limited t/a AJ Automotors - Reference No. MVD 247/2022 [2023] NZMVDT 9 (1 February 2023)

Last Updated: 23 March 2023

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 247/2022 [2023] NZMVDT 009 BETWEEN MERLE STRONGE, as executor of the estate of LEWIS STRONGE Applicant AND AUTOBASE ENTERPRISE LIMITED TRADING AS AJ AUTOMOTORS Respondent

MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Haynes, Assessor

HEARING at Auckland on 19 January 2023 (Applicant appearing by audio-visual link; Respondent appearing in person)

APPEARANCES

Merle Stronge, Applicant Nathan Stronge, Witness for Applicant Shiu Tung Jones Lai, Director of Respondent

DATE OF DECISION 1 February 2023

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

Autobase Enterprise Limited must pay Merle Stronge the sum of $2,224.40

within 10 working days of the date of this decision.

_________________________________________________________________

REASONS

Introduction

[1] The late Lewis Stronge purchased a 1999 Jeep Wrangler from Autobase Enterprise Ltd, trading as AJ Automotors (AEL) for $26,990 on 10 January 2022. Whilst travelling through the South Island, the vehicle broke down and was diagnosed to have a faulty transfer case and other issues. This application relates to costs and expenses Mr Stronge incurred in repairing the vehicle.
[2] AEL denies liability. It claims that Mr Stronge contributed to the faults by driving the vehicle in saltwater.
[3] After filing the claim, Mr Stronge sadly passed away as a result of an accident. His wife, Merle Stronge, is the executor of his estate. With the consent of AEL, at the outset of the hearing, I ordered that the name of the applicant be changed from Lewis Stronge to Merle Stronge, as executor of the estate of Lewis Stronge.

Relevant background

[4] Mr Stronge submitted a chronology document when he filed his application. Although he is not present to confirm as accurate the content of that document, in the circumstances, I consider that I am entitled to take its contents into account pursuant to sch 1 cl 9A of the Motor Vehicle Sales Act 2003. In any event, I note that Mrs Stronge, who gave evidence, had first hand knowledge of many of the salient facts.

Purchase of the vehicle

[5] In early 2022, Mr and Mrs Stronge were looking to purchase a vehicle specifically for the purposes of a high country excursion. They had in mind the “High Country Journeys” trip, which travels from Blenheim to Cardrona over seven days. They needed a four-wheel-drive vehicle which would be able to handle the terrain. There would be occasions when the vehicle would need to travel through small streams and shallow rivers and across uneven terrain.
[6] Mrs Stronge accompanied her husband to the premises of AEL on the day of the purchase. She recalls meeting with Mr Lai, the director of AEL, who sold them the vehicle. She said that the couple told Mr Lai they wanted the vehicle for the purposes of undertaking a four-wheel-drive trip, but could not recall if they specifically said that the trip was in the South Island.
[7] According to Mr Stronge’s chronology document, he asked Mr Lai about the vehicle’s gearbox and transfer case and was told by Mr Lai that he only changes the oils if they had been leaking. This implied there was no issue with the transfer case and gearbox.
[8] After buying the vehicle, Mr Stronge drove it every day for a month. Mrs Stronge’s evidence was that at no time during that period was the vehicle driven on or near a beach or in saltwater. She said that she would have known if it had been as she would have been there with Mr Stronge when he did so.
[9] Around a month after purchase, the couple then set off for their South Island venture from Auckland. They started their High Country Journeys trip and drove the vehicle without incident until a few days into the trip when the vehicle started making a clicking or clunking noise as it was driving in four-wheel-drive slowly along a gravel farm road.
[10] Mrs Stronge was adamant that up until this point at no time had the vehicle been driven in any saltwater on the trip. She said the vehicle had travelled through some shallow rivers and streams but that because they were on hilly terrain, these would have been freshwater streams and rivers. Photographs were supplied showing the sort of waterways they had travelled through.
[11] Mr Stronge took the vehicle to a local mechanic in Geraldine, M & G Autocentre Limited (MG). Mr Stronge had all of the dealings with MG and Mr Lai throughout the diagnosis and subsequent repair process, however he relayed all of his communications back to Mrs Stronge who was sometimes there when phone calls were taking place in any event. Her evidence backs up the summary of events provided in the chronology document I refer to above.

Diagnosis and repairs

[12] MG removed the transfer case and, according to Mr Stronge’s chronology, its initial assessment was that the needle roller and the planetary gear had collapsed and the rollers had then gone through the transfer case, causing damage. It appeared that a new transfer case would be required.
[13] Mr Stronge rang Mr Lai to notify him of the initial diagnosis about the transfer case. Mr Lai requested that he return the vehicle to AEL so that it could repair it. Mr Lai was wanting Mr Stronge to pay for the transportation cost. Mr Stronge did not want to do that because the vehicle had by this stage been taken apart and he did not want to pay for it to be shipped to Auckland. Mr Lai said that in that case he would try to find a replacement transfer case and have it sent down. Mr Lai offered that he would pay for the cost of the transfer case and that Mr Stronge would pay for the installation.
[14] Before Mr Lai could find a replacement case, Mr Stronge was able to locate one from a supplier in Kumeu, at a cost of $569.25. MG attempted to install this transfer case but during a test drive it was found that it had a vibration.
[15] MG then spent some time further investigating the issue, resulting in the driveshaft being removed. In the course of that work, it noted that the rear brakes were not working, the wheel cylinders had seized and the top shock bushes were worn, due to not having been installed correctly.
[16] At this point, Mr Stronge decided to truck the vehicle to Auckland because he considered it was getting too hard to fix it. MG invoiced him the sum of $1,178.76 for the work it had undertaken to date. Its invoice records that the vehicle had then travelled 51,550 km. The work it undertook included:

Remove bash plates and driveshaft. Remove transferbox, disassemble. Remove rear wheels, drums and wheel cylinders, replaced seized cylinders, bleed breaks. Replace transfer box with supplied unit. Test drive, check out vibration fault. Remove driveshaft to isolate vibration fault (transfer box fault). Replace rear top shockie bushes (worn out from not being installed correctly).

[17] The cost of transporting the vehicle to Auckland was $1,574.40.
[18] On arrival back in Auckland, Mr Stronge attempted to find another transfer case, however, this was not easy. Mr Stronge decided that, instead, he would order a rebuild kit for the existing transfer case from the USA and have the transfer case rebuilt through The Gearbox Factory. The reason for this was because he did not want to fit a used transfer case into the vehicle. Mr Stronge incurred these expenses without the approval of AEL.
[19] AEL fitted the rebuilt transfer case into the vehicle on 19 June 2022 but was unable to get the speedometer working correctly in that it was reading about 10% fast. According to Mrs Stronge, the speedometer still works incorrectly, however, she has produced no corroborative evidence or investigative reports in relation to that aspect.
[20] The vehicle has now been repaired and Mrs Stronge is driving it without incident. AEL has not paid for the cost of the transfer case.
[21] Mrs Stronge claims reimbursement from AEL for the following expenses:

MG invoice $1,778.76

Jeep Parts NZ Ltd invoice (cost of the transfer case) $569.25

The Gearbox Factory invoice $1,220.90

Auto Logistics (transportation invoice) $1,574.40

new parts for transfer case $715.87

[22] Mrs Stronge produced documentary evidence verifying all of these expenses, except the amount for $715.87. She was unable to locate any invoice or evidence of payment of that sum by her late husband. She was unable to therefore clarify or explain what it related to.

The position of AEL

[23] Mr Lai’s evidence was that he imported the vehicle in July 2021 when it had travelled 49,009 km. The compliance documentation he produced showed that there was some underbody rust on the vehicle when it was imported. He remedied that issue by sanding and repainting the underbody. His evidence was that the rust was simply consistent with the age of the Jeep and not because the vehicle had been driven in saltwater.
[24] Mr Lai’s evidence was that AEL always undertakes a full service and in this case it would have checked the transfer oil case and found no leaking. He confirmed that he checked the oil and that it was in a good condition. His evidence is therefore that there were no issues with the transfer case when the vehicle was sold.
[25] Mr Lai recalled meeting with Mr Stronge when the vehicle was purchased but did “not really” recall Mrs Stronge being there. He conceded that maybe she had been, however, and agreed he could not rule it out.
[26] He said that Mr Stronge did not tell him he was going on any trip with the vehicle or that he was going to the South Island for that trip but said that usually people who buy Jeeps are wanting to “have fun” and that such vehicles may be used for off-road driving.
[27] Mr Lai confirmed that Mr Stronge contacted him after the vehicle broke down to say that the vehicle had a faulty transfer case. He said he asked Mr Stronge if the vehicle could be brought back to him in Auckland but that Mr Stronge did not want to pay for that. Mr Lai was not willing to pay for the transportation cost. He offered to locate a transfer case and send it down to Mr Stronge but Mr Stronge would have to pay for the installation.
[28] In relation to the vibration that was discovered when the transfer case was fitted, Mr Lai said this vibration issue was most likely a result of an installation problem to do with the driveshaft. He said he believed AEL could have adequately installed the transfer case without the refit kit or a rebuild being required. Mr Lai did not agree with the need for the transfer case to be rebuilt.
[29] Mr Lai produced a series of clear photographs showing the undercarriage of the vehicle. He took those photographs when he had the vehicle back at his premises to install the transfer case. The photographs show what appears to be rust on the undercarriage. He submitted that the extent of this rust is consistent with the vehicle having been taken through saltwater by the Stronges. He claims that the saltwater would have caused the transfer case to fail and he therefore says that the failure of the transfer case is not his responsibility. He also claims the saltwater would have caused the wheel cylinders to seize.
[30] In support of that position, he submits that the faulty transfer case had a pink coloured fluid inside it. He says this was as a result of saltwater entering through the breathers of the transfer case and mixing with the automatic transmission fluid inside the transfer case. He claims that when this happens, the fluid inside the transfer case will turn pink.
[31] Mr Lai submitted that there should be an independent inspection of the underbody rust and transfer case to ascertain whether the level of rust is consistent with saltwater.
[32] In relation to the speedometer, he claimed that if this is an issue, it is because the parts number for the refit kit was not the same as the parts number on the transfer case. He says this is not his responsibility because he had nothing to do with getting the refit kit or the transfer case.

The issues

[33] Arising out of the foregoing, the issues requiring the Tribunal’s consideration in this case are:

• (a) Was the vehicle of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA)?
• (b) Did Mr Stronge request AEL to remedy the failures within a reasonable time?
• (c) Did AEL refuse or neglect to remedy the failures within a reasonable time?
• (d) What remedy is Mrs Stronge entitled to under the CGA?

Issue 1: Was the vehicle of acceptable quality?

[34] 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.
[35] 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.

[36] 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.

Faulty transfer case

[37] I find that the transfer case of this vehicle has failed prematurely, the vehicle having then travelled only 51,500 km. A relevant question that I must decide is whether or not the vehicle was submerged in saltwater by Mr and Mrs Stronge during the course of their ownership and if so, whether their actions could have therefore caused the premature failure of the transfer case.
[38] Mrs Stronge was adamant the vehicle had not been driven through saltwater by her or her late husband. I accept her evidence in this regard. I found her to be a clear and reliable witness, with a firm recollection of events. I have no reason to disbelieve her.
[39] The photographs she produced showing the waterways she and her husband travelled through are consistent with high country waterways which typically comprise fresh water, being water running off the hills.
[40] Mr Haynes, the Tribunal’s Assessor, has viewed the photographs produced by Mr Lai. These clearly depict the underbody of the vehicle. Mr Haynes advises that they show there are some small rust stains on the vehicle’s newly painted chassis. A further inspection by an additional party is not required, as was suggested by Mr Lai. Mr Haynes is well qualified enough to ascertain the extent of the rust from the photographs that have been provided.
[41] A vehicle does not of course need to have been near saltwater in order for it to display signs of rust. Having viewed the photographs, Mr Haynes advises that the level of rust apparent is simply consistent with the vehicle’s age.
[42] Further, Mr Haynes advises that any sort of water, fresh or salt, that enters the transfer case will turn the automatic transmission fluid pink. The fact the fluid was pink was therefore neither here nor there. It does not mean that saltwater was in the transfer case, as was contended by Mr Lai. It could simply have turned pink from the water that entered the transfer case when the Stronges drove through the various waterways.
[43] I therefore find that Mr and Mrs Stronge did not take the vehicle through saltwater. I reject Mr Lai’s contention that the Stronges drove the vehicle in saltwater.
[44] It follows that I find the Stronge’s actions did not cause or contribute to the failure of the transfer box.
[45] The transfer box has failed prematurely. A reasonable consumer of a vehicle of this age, price and mileage would not expect to have encountered a transfer box failure so soon after purchase and after the vehicle had only travelled approximately 2,500 km. I am satisfied that the failure of the transfer box has meant the vehicle was not of acceptable quality for the purposes of the CGA. The vehicle was not as durable as a reasonable consumer would expect.

The brakes

[46] MG reported to Mr Stronge it had discovered the rear brakes were not working. Its invoice, however, does not refer to any issue with the brakes, other than referring to a brake bleed.
[47] A party bringing a claim before the Tribunal has the obligation to prove their claim, by reference to diagnostic reports or mechanic’s evidence, invoices, photographs and the like.
[48] I am not satisfied that sufficient evidence has been put forward by Mrs Stronge to prove that there was any fault with the brakes that might amount to a failure of the guarantee of acceptable quality.

Rear Top Shock Bushes

[49] I find that the rear top shock bushes were worn from not being installed correctly. The invoice from MG refers expressly to this failure.
[50] A reasonable consumer of a vehicle of this age, price and mileage would expect that parts like shock bushes would be installed correctly.
[51] I find the condition of the rear top shock bushes has meant the vehicle was not of acceptable quality.

The wheel cylinders

[52] I find that the wheel cylinders were seized when the vehicle was inspected by MG. A reasonable consumer of a vehicle of this age, price and mileage would not expect such a fault, so soon after purchase and after the vehicle had travelled only approximately 2,500kms.
[53] Mr Lai submits that the cylinders have seized because the Stronges took the vehicle through saltwater, but I have already found that they did not. The Stronges did nothing to contribute to the failure.
[54] The condition of the wheel cylinders has meant the vehicle has not been as durable as a reasonable consumer would expect and that the vehicle was therefore not of acceptable quality for the purposes of the CGA.

The speedometer

[55] There was no diagnostic evidence provided in support of this alleged failure.
[56] A party bringing a claim before the Tribunal has the obligation to prove their claim, by reference to diagnostic reports or mechanic’s evidence, invoices, photographs and the like. Mrs Stronge has not provided such evidence. She has therefore not proven that there is a fault with the speedometer that amounts to a breach of the guarantee of acceptable quality.

Issue 2: Did Mr Stronge request AEL to remedy the failures within a reasonable time?

[57] The options available to a consumer where goods do not comply with guarantees contained in the CGA are set out in s 18.
[58] 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.

[59] Under s 18(2)(b)(i) of the CGA, it is only where a supplier is first asked to repair a failure and refuses or neglects to do so, that a consumer is then entitled to have any required repairs undertaken elsewhere. The important first step is therefore that the supplier must be asked to repair.
[60] Although a supplier is obliged, if requested, to repair defects that breach the guarantee of acceptable quality, a consumer should generally provide a supplier with sufficient information to prove such defects exist before the supplier’s obligation to repair is triggered.
[61] I am satisfied that Mr Stronge did that in this case. He took the vehicle to MG, which provided an initial diagnosis about the transfer case.
[62] I am satisfied that Mr Stronge then requested AEL to remedy the failure of the transfer case.
[63] I am not however satisfied that Mr Stronge at any point asked AEL to remedy the other failures with the vehicle. There was no evidence that anything was discussed with Mr Lai, other than the transfer case, and indeed it appears that some of the other issues did not come to the fore until the transfer case installation was underway.

Issue 3: Did AEL refuse or neglect to remedy the transfer case failure?

[64] I find that Mr Lai was made aware by the Stronges that they had a planned four-wheel-drive trip that they wanted to take the vehicle on. I found Mrs Stronge to be clear in her recollection about this having been discussed with Mr Lai. I accept that he may not have known specifically where the trip was but I find that it was reasonably foreseeable that the trip could be out of Auckland and that a breakdown of the vehicle on that trip could require transportation back to Auckland, potentially from a remote location such as the South Island.
[65] Once AEL was presented with the assessment of MG about the transfer case, its obligation was therefore to take the vehicle back and repair it. That included paying for it to be transported back from where it was if AEL wanted to repair it in Auckland, or to pay for the vehicle to be repaired locally, if AEL did not want to repair it in Auckland.
[66] AEL will consider that it did not fail in its obligation to repair the vehicle because Mr Stronge was obliged to return the vehicle to Auckland for repairs to be performed, but he did not initially do so.
[67] There is no provision in the CGA that allocates responsibility for the cost of return of goods to a supplier where defects are to be remedied. However, s 22 of the CGA, which relates to the manner of rejecting goods, provides guidance as to the way in which I should approach this issue.
[68] Section 22 provides:

22 Manner of rejecting goods

(1) The consumer shall exercise the right to reject goods under this Act by notifying the supplier of the decision to reject the goods and of the ground or grounds for rejection.

(2) Where the consumer exercises the right to reject goods, the consumer shall return the rejected goods to the supplier—

(a)  unless,—

(i)   because of the nature of the failure to comply with the guarantee in respect of which the consumer has the right to reject the goods; or

(ii)  because of the size or height or method of attachment,—

the goods cannot be returned or removed or transported without significant cost to the consumer, in which case the supplier shall collect the goods at the expense of the supplier; or

(b)  unless the goods have already been returned to, or retrieved by, the supplier.

(3) Where the ownership in the goods has passed to the consumer before the consumer exercises the right of rejection, the ownership in the goods revests in the supplier upon notification of rejection.

[69] Relevantly, s 22(2)(a) imposes an obligation on the supplier to collect the vehicle at its expense where the vehicle cannot be returned or transported without significant cost to the consumer.

[70] I consider that the requirement in s 22(2)(a) of the CGA that the supplier will bear responsibility for the return of the vehicle where significant cost is involved can also apply to repairs required under s 18(2)(a), where the supplier must rectify defects that breach the guarantee of acceptable quality within a reasonable time. I consider it reasonable to apply s 22(2)(a) to the question of who meets the transportation cost in this case, even though the Stronges were not seeking rejection of the vehicle. This is because s 22(2)(a) deals specifically with the question of who pays for return of the vehicle where the costs of transport are significant.

[71] Further, the CGA is consumer protection legislation and must be interpreted in a manner consistent with that purpose. Under s 18(2)(a) of the CGA, the supplier has an obligation to rectify defects that breach the guarantee of acceptable quality in s 6 of the CGA at its expense. Implicit in that obligation is a requirement that the supplier should bear responsibility for the cost of transporting a vehicle for repairs where the vehicle cannot be transported without significant cost to the consumer. Any other interpretation would be inconsistent with that consumer protection purpose and would undoubtedly lead to many situations where consumers are unable to access their CGA rights because they cannot afford the cost of transporting a faulty vehicle to the supplier for repairs.

[72] In this case, I consider that Mr Stronge was not obliged to incur the cost of returning the vehicle for repairs to be performed.

[73] I find that AEL’s conduct in requiring Mr Stronge to pay to have the vehicle transported to Auckland and stating that it would only pay for the transfer case itself, should Mr Stronge wish to repair the vehicle locally, amount to a refusal to repair the transfer case failure for the purposes of s 18(2)(b)(i) of the CGA.

Issue 4: What remedy is Mrs Stronge entitled to under the CGA?

[74] Pursuant to s 18(2)(b)(ii) of the CGA, Mrs Stronge is entitled to the reasonable costs of remedying the failure of the transfer case.
[75] MG has rendered an invoice covering a number of items. It diagnosed the failure of the transfer case and then attempted installation. The transfer case itself cost an additional $569.25.
[76] Mrs Stronge is only entitled to be reimbursed for the reasonable costs of attempting to remedy the failure of the transfer case. She is not entitled to recovery of the other items referred to in the MG invoice because those repairs were undertaken to the vehicle without AEL first being asked to repair them. Pursuant to the CGA, Mrs Stronge may only recover the cost of repairs performed by MG if AEL has failed, or refused, to perform the repair. In Acquired Holdings Ltd v Turvey, the High Court found that, under s 18(2) of the Act, where goods have failed to comply with the acceptable quality guarantee in s 6 of the Act (as the vehicle did in this case), the consumer must first give the supplier an opportunity to remedy the failure before they can have the fault repaired elsewhere and recover the cost.[1]
[77] Mr Haynes advises that generally the reasonable cost of diagnosis and installation of a transfer case (including the part) would be $650.
[78] Taking into account Mr Hayne’s assessment, I therefore find that the reasonable cost that Mrs Stronge is entitled to relating to the transfer case failure is $650. In fixing this amount I do not allow any discount for the costs that might have been incurred for the failed efforts at installation by MG. Mr Haynes advises that it is not unusual that complex parts in a motor vehicle may need more than one attempt at installation.
[79] AEL must therefore pay Mrs Stronge $650 by way of compensation for reasonable costs incurred relating to the transfer case failure.
[80] I decline to award any compensation for the refit kit or the cost of the rebuild. Mr Haynes advises that this was an unnecessary expense and that most likely, further attempts at correct installation of the transfer case would have remedied any vibration. I find, further, that rebuilding the transfer case represented betterment.

The transportation costs

[81] Pursuant to s 18(4) of the CGA, in addition to the remedies set out in subsection (2) and (3), a consumer may obtain damages from a supplier for any loss or damage to the consumer resulting from the failure which was reasonably foreseeable as liable to result from the failure.
[82] When the Stronges eventually brought the vehicle back to Auckland for repair by AEL, they incurred a transportation cost of $1,574.40.
[83] I have found that the Stronges told Mr Lai of the fact they had planned a four-wheel-drive trip, albeit they may not have said the trip was to the South Island. As I have stated above, it was therefore a reasonably foreseeable consequence of the vehicle’s failure to comply with the guarantee of acceptable quality that if the vehicle broke down, a transportation cost would be incurred from potentially the location of that trip, including from a remote location such as somewhere in the South Island.
[84] I therefore find the transportation cost of $1,574.40 to be a reasonably foreseeable cost and I order AEL to pay that sum to Mrs Stronge.

Outcome

[85] AEL must pay Mrs Stronge the sum of $2,224.40.

DATED at AUCKLAND this 1st day of February 2023

D A Watson
Adjudicator

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[1] Acquired Holdings Ltd v Turvey [2007] NZHC 1251; (2008) 8 NZBLC 102,107 (HC) at [11].