|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Motor Vehicles Disputes Tribunal |
Last Updated: 30 August 2024
|
BETWEEN JICAYDINCE JULIAN BRENT BEAZLEY
Applicant
AND NZ4X4S LIMITED
Respondent
|
||
|
|
|
|
|
|
||
|
MEMBERS OF TRIBUNAL
|
||
|
D Watson, Adjudicator
|
||
|
S Gregory, Assessor
|
||
|
HEARING at Auckland on 9 July 2024 (by audio-visual link)
|
||
|
APPEARANCES
|
||
|
J Beazley, Applicant
P Birss, Witness for the Applicant
|
||
|
S Faqeeri, for the Respondent
|
||
|
DATE OF DECISION 11 July 2024
|
||
_________________________________________________________________
DECISION OF THE TRIBUNAL
_________________________________________________________________
_________________________________________________________________
REASONS
Introduction
[1] Jicaydince Julian Brent Beazley purchased a 2010 Toyota Hilux from NZ4X4S Limited (NZL) on 1 September 2023 for $38,890.00.[1] The vehicle had then travelled 198,152 km. He claims the vehicle has suffered catastrophic engine failure as a result of a pre-existing blocked radiator. The cost of repair is $18,435.27. He is asking for NZL to repair the vehicle.
[2] NZL does not accept the vehicle had a pre-existing blocked radiator at the time of purchase. It says that the vehicle’s current condition is not its responsibility and that it has no liability to Mr Beazley.
The issues
[3] 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 Beazley entitled to under the CGA?
Relevant background
[4] Mr Beazley drove the vehicle without incident until late December 2023 when he was away during the Christmas holidays. The vehicle broke down on the way to the Coromandel and would not start.
[5] He had motor vehicle breakdown insurance (MBI) with Quest and it sent a mechanic out to inspect the vehicle.
[6] The Quest mechanic said that the vehicle possibly had a head gasket issue. He advised Mr Beazley to take the vehicle to a Motor Trade Association (MTA) approved mechanic.
[7] Mr Beazley had the vehicle towed to Phil Birss, an approved mechanic. Mr Birss gave evidence at the hearing. He said that the vehicle’s heater core had failed, thus causing the vehicle to overheat and then the engine failure. The issue was that there was no inhibitor present in the cooling system, which he found to be full of rusty brown water only.
[8] Mr Birss gave evidence during the hearing that this sort of condition would only occur over a prolonged period of time and would take about two years for it to reach that condition.
[9] The diagnostic charge of Mr Birss was $500 and this has been paid.
[10] Mr Beazley provided a quote from Mr Birss dated 19 February 2024 for a new cylinder head and other engine components at an estimated cost of $9,597.90. Additional quotes for other components and repairs including a quote for $2,422.00 from Coolcar Air-conditioning and Heating Centre, to remove and replace the leaking heater core, and a quote for Waikato Engine Reconditioners Ltd for $5,816.46 to supply a new cylinder head and recondition its related parts.
[11] Mr Beazley made a claim against his MBI policy. It undertook its own diagnosis and determined that the damage had been caused by a blocked radiator. It took a video which was produced in evidence showing water circulating through the radiator demonstrating that the radiator core was blocked well over 50% of its totality which it said was a clear indication that the core was corroded. That blockage had then led to the overheating of the engine whereby there was insufficient circulation to the engine and radiator. It declined cover on the basis that this was caused as a result of corrosion and that corrosion was excluded by the policy.
Mr Beazley contacts NZL
[12] At this point, Mr Beazley contacted NZL by letter dated 22 February 2024. He said that he was wanting the vehicle to be repaired at this stage.
[13] The matter was not resolved and at the date of filing his application, the vehicle’s odometer reading was 220,494 kms. Mr Beazley has not driven the vehicle at all since it overheated and had to be towed to Mr Birss.
The position of NZL
[14] The position of NZL is as follows:
- (a) it denies that the condition of the radiator was as described by Mr Birss. It says that there would have been a service of the vehicle at the time of sale, including the radiator and that therefore his evidence that there was a pre-existing defect is incorrect,
- (b) it says that Mr Beazley must have “thrashed” the vehicle and that is why it has had an overheating incident leading to engine failure,
- (c) it denies it has any ongoing responsibility for this vehicle, given the amount of driving that has been undertaken by Mr Beazley; and
- (d) It believes that there has been some sort of conspiracy between Mr Birss and Mr Beazley in this matter.
Issue 1: Was the vehicle of acceptable quality?
[15] 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.
[16] 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.
[17] 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.
What fault has the vehicle had?
[18] I accept the evidence of Mr Birss that the vehicle was found to have no inhibitor present in the cooling system and that the cooling system was full of rusty brown water. I accept that this has more probably than not lead to the vehicle overheating and the subsequent engine failure.
[19] The evidence of Mr Birss is also consistent with advice from Mr Gregory, the Tribunal’s Assessor. Mr Gregory has examined the photographs and the video of the radiator which were produced. He agrees with the opinion of Mr Birss. Mr Gregory advises that the lack of inhibitor (an anti-corrosive) in the radiator has caused corrosion to develop within the cooling system which has then blocked the radiator. This has caused an insufficient flow of coolant within the engine and once the vehicle was put under load, as Mr Beazley described by ascending a hill, the engine quickly overheated, pressurising the cooling system which likely led to the heater core bursting and damaging the cylinder head.
[20] Mr Gregory advises also that the condition of the rusty brown water in the radiator indicates that this fault has been present for a very long time and was certainly pre-existing at the point of sale. He advises that it would have taken approximately two years for the condition of the coolant to get to this level.
Has the vehicle failed the guarantee of acceptable quality?
[21] A reasonable purchaser of a vehicle of this age price and milage would expect to encounter the need for ongoing maintenance and repairs, but they would not expect to encounter a fault of this nature so soon in their ownership of the vehicle. I am satisfied that this was a pre-existing fault, given the evidence of Mr Birss and the advice of Mr Gregory, noted above. The vehicle has not been as durable as a reasonable consumer would find acceptable, given the age, price and milage at the time of sale.
[22] I am satisfied that nothing that Mr Beazley did has contributed to this pre-existing fault. There is absolutely no evidence at all that he “thrashed” this vehicle. To the contrary, I found him to be a careful and cautious witness who has most likely taken good care of his vehicle, of which he was no doubt very proud.
[23] I am also satisfied that when the vehicle showed signs of overheating, he acted cautiously and only drove the bare minimum to get the vehicle to safety where it could be towed.
[24] I found no evidence at all of any conspiracy as alleged by NZL between Mr Beazley and Mr Birss. That allegation lacked any foundation whatsoever.
[25] The blocked radiator, leading to the engine failure, has meant that the vehicle failed the guarantee of acceptable quality.
Issue 2: What remedy is available to Mr Beazley under the CGA?
[26] Mr Beazley would have been entitled to reject the vehicle under the CGA on the grounds that the vehicle’s failure amounts to a failure of a substantial character, however, I do not need to consider that aspect because the remedy that he is seeking is the remedy of repair.
[27] The remedies of repair are set out in s 18 of the CGA which provides:
- 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.
[28] Mr Beazley is entitled to the remedy of repair and those repairs must be undertaken within a reasonable period of time.
[29] NZL must uplift the vehicle at its cost from Mr Beazley or wherever it is currently located (as advised by Mr Beazley) and repair the vehicle by replacing the engine and any other components (such as the heater core) that have failed as a result of the blocked radiator and subsequent overheating. These repairs must be undertaken within a reasonable period of time of this decision and, upon completion, the vehicle must then be returned to Mr Beazley at the cost of NZL.
[30] Pursuant to s 18(4) of the CGA, Mr Beazley is entitled to be reimbursed the sum of $500 by way of the diagnostic charges of Mr Birss.
[31] The parties have leave to apply to the Tribunal within 10 working days if any aspect of this decision requires clarification.
DATED at AUCKLAND this 11th day of July 2024
D Watson
Adjudicator
[1] I note that the vehicle offer and sale agreement (VOSA) that was produced records the purchase price being $338,890 but that was clearly a typo.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZMVDT/2024/126.html