Pierre David v Portage Cars Limited - Reference No. MVD 350/2024 [2024] NZMVDT 204 (23 October 2024)

Last Updated: 1 December 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 350/2024 [2024] NZMVDT 204 BETWEEN PIERRE DAVID Applicant AND PORTAGE CARS LIMITED Respondent

HEARING at AUCKLAND on 15 October 2024 (by audio-visual link) MEMBERS OF TRIBUNAL

C Euden – Adjudicator

S Gregory – Assessor

APPEARANCES

P David, Applicant

B Barratt, for the Respondent

J Quigley, Witness for the Respondent

DATE OF DECISION 23 October 2024

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

1. Mr David’s application to reject the vehicle is dismissed.
2. Portage Cars Limited must, within 10 working days of the date of this decision, pay $440.47 to Mr David.

100. Portage Cars Limited must, within a reasonable time from the date of this decision:
     1. investigate and repair the fault with the turbo control flap;
     2. replace the PCV valve and ensure its correct operation;
     3. remedy the cause for the headlights fogging by either repair or replacement;
     4. return the vehicle’s ECU to stock/standard tune and inform Autosure Insurance (DPL Insurance Limited) that the tune has been removed; and
     5. after the above repairs are completed, conduct an oil consumption test to ensure it is within manufacturers guidelines. If it is not within those guidelines, Portage Cars must rectify it within a reasonable time of the date of this decision.

_________________________________________________________________

REASONS

Introduction

• [1] Mr David purchased a 2016 BMW 335D X-Drive for $32,989 from Portage Cars Limited (Portage Cars) on 14 October 2023.
• [2] Mr David seeks to reject the vehicle due to the issues that have arisen since purchase.
• [3] Portage Cars says that Mr David should not be entitled to reject the vehicle. It says that it repaired the initial issues with the vehicle and would like to assess the vehicle again to determine whether any further repairs are necessary.

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) Are the vehicle’s defects a failure of a substantial character?

(c) Has Mr David lost the right to reject the vehicle?

(d) What remedy, if any, is Mr David entitled to under the CGA?

Relevant background

• [5] Mr David purchased a 2016 BMW 335D X-Drive for $32,989 from Portage Cars on 14 October 2023; the total purchase cost Mr David $35,899.^[1] The odometer at point of sale read 107,318 km. Mr David purchased the car via:

(a) a trade-in of his BMW Active Hybrid 3 with a net value of $5,742.67 after encumbrances;

(b) a $5,000 deposit; and

(c) a loan through Limelight Financial Services Limited, trading as Finance Central, of the balance of $25,156.33.^[2]

• [6] Mr David says that two weeks after purchasing the car, the vehicle’s iDrive system alerted him to the car needing topping up of oil. He says he bought $150 of oil at the closest Repco.
• [7] On or about 8 November 2023 the vehicle also displayed a Drivetrain error message. It read “Continue the journey at a moderate speed. Full performance not available. Have the problem checked by your service partner.” Mr David informed Portage Cars of the Drivetrain error messages, as well as the vehicle’s misted headlights, and booked the vehicle in for a repair with Portage Cars.
• [8] Mr David returned the vehicle to Portage Cars on 13 November 2023 and received a loan car which he said he had several issues with.
• [9] On 15 November 2023 Portage Cars advised Mr David that it would take two weeks for a new nox sensor to arrive from Germany. Mr David continued to use the loan car. Portage Cars also emailed Mr David asking for his MBI insurance policy number, stating “We would cover the head light repairs and inspection fee we are thinking if Autosure can assist with the support of ordering parts”.
• [10] Mr David agreed for Portage Cars to make a claim against his MBI policy, and he completed the necessary documentation for Autosure to initiate the claim.
• [11] On 21 November 2023 Portage Cars advised Mr David that the headlights had been repaired,^[3] and that the vehicle had now been sent on to another mechanic, Galeeco Automotive (Galeeco).
• [12] On 25 November 2023 Mr David sought to reject the vehicle.
• [13] An invoice dated 27 November 2023 recorded that Galeeco had charged Autosure $5,076.24 for labour, parts and consumables.^[4] The invoice covered the following work:

Remove and refitting
Intake manifold, EGR and cooler, vent hose.
Carryout leaning, chemical bath, replace intake manifild,.
Replacing bank 1 and bank 2 oxy sensors, carry out DPF cleaning.
rain the cooling system and refill. Replace air filter and clean surroundings.
Set up and calibrate the system and scan for report.
Test drive to assure no further faults.

• [14] On 7 December 2023 Autosure advised Mr David that there was an outstanding recall on the EGR cooler for the vehicle which should be carried out. It advised that Galeeco, which still had possession of the vehicle, would arrange the recall.
• [15] On 13 December 2023 Galeeco advised Mr David that the EGR recall would take four to six weeks for BMW Auckland City to obtain the part from overseas, after which it would need to be installed. Only after the EGR recall had been completed, would Galeeco be able to continue to work on the repairs. Mr David emailed Portage Cars in response, noting that he was unwilling to wait four to six weeks and wished to return the vehicle.
• [16] Portage Cars responded that day:

We have informed out [sic] general manager about this and he suggested you to pick up your BMW back and use it for now

the recall will happen tomorrow and be delivered to BMW dealer at New market tomorrow

• [17] On 19 December 2023 Mr David emailed Craig at Portage Cars with a summary of his experience with the vehicle to date. Amongst other things his email noted that:

I am now in the position where I most likely won’t get a repaired car back until later in 2024. I must say I lack confidence in portage cars to repair my car in a reasonable amount of time as I hardly drove the car before all of this began. Let alone the experience I have had with the loan car.

I have been paying insurance and repayments on a car while it’s been in the workshop longer than in my possession. At this point in time I am seriously considering going down the path of a refund / replacement car as this is very hard to deal with.

• [18] On 20 December 2023 Portage Cars emailed Mr David informing that the recall part was now likely to take three months and that the matter had been sent to Portage Cars’ manager for discussion. The email repeated that Mr David could use the vehicle in the meantime. Mr David collected the vehicle sometime thereafter and returned it to Portage Cars in January 2024 for the EGR recall work. Mr David said the vehicle was unable to be driven in the time he had the vehicle because the vehicle was often in limp mode.
• [19] Subsequently, during December and January 2024, Mr David discussed with Portage Cars whether there was another vehicle that Portage Cars was selling that he could take instead. Those discussions concluded with Mr David not wanting any of Portage Cars’ other vehicles on offer.
• [20] In January 2024 Mr David began discussing with Finance Central regarding cancelling the loan. At the same time, he was discussing the same with Portage Cars. Mr David was also attempting to cancel the MBI policy from the date the vehicle had been returned to Portage Cars for repairs.
• [21] At some point in March 2024 Mr David was given an update on the progress with the vehicle’s EGR recall and subsequent repairs. On 15 March 2024 Mr David emailed Portage Cars noting that the new expected date for the vehicle’s EGR recall and repairs being finished was now the end of March 2024, and again requested to reject the vehicle.
• [22] An invoice dated 1 April 2024 records that Galeeco charged Portage Cars $885.71 for labour and parts to diagnose and repair an ABS fault and replace the sensor. This fault appears to be a separate issue, unrelated to the EGR recall and other repairs.
• [23] Portage Cars submitted a copy of an email from Galeeco dated 9 August 2024. In the email, Galeeco states it found no fault with the vehicle’s engine light and transmission. It also notes that after resetting the ECUs, it drove the vehicle around for two weeks and there was no engine light or transmission error showing on the vehicle’s dashboard in that time. Portage Cars says that Galeeco’s email relates to its work done and recorded in the invoice of 1 April 2024. I note that Galeeco’s invoice does not record any work in relation to the vehicle’s ECUs.
• [24] At some point in April 2024, Mr David collected the vehicle from Portage Cars. He says the vehicle displayed the same Drivetrain error messages quickly after he collected it.
• [25] On 2 May 2024 Mr David again emailed Portage Cars requesting to reject the vehicle. He noted:

... Regrettably, shortly after taking ownership of the BMW 335D, I encountered several issues related to the drivetrain and headlights. Despite my efforts to address these concerns properly, the car required extensive repairs, which, unfortunately, led to it being out of commission for nearly five months. As well as the car still having errors coming up after the repairs were completed.

I believe the car is a complete lemon and I do not have faith in it anymore.

Consequently, I found myself in the challenging position of making payments on a vehicle I was unable to fully utilise. During this time, I maintained communication with Craig, the previous sales manager, who assured me that he would collaborate with the finance company to explore options for undoing the deal. However, with Craig's departure from the dealership, I find myself at a loss regarding how to proceed.

Given the circumstances outlined above, I kindly request your assistance in facilitating the reversal or refund of the aforementioned car deal.

• [26] Portage Cars then collected the vehicle from Mr David again. Portage Cars says that it could not identify any faults with the vehicle and on 24 May 2024 advised Mr David that the vehicle was ready for collection. He collected it on 15 July 2024.
• [27] On 17 July 2024 the vehicle displayed the original Drivetrain error message. Mr David messaged a picture of the error message to Mr Barratt at Portage Cars that day.
• [28] On 23 July 2024 Mr Barratt messaged Mr David:

I’ve spoken extensively with a tech team about history of your car and your current concerns. When the previous work on the car was completed there were no lights or fault codes showing on the dash. They feel the issues now may be due to voltage drop after sitting parked for so long. The recommendation is to take it to your local mechanic and have the code scanned and cleared and perhaps to battery health test at the same time.

• [29] The vehicle remains in Mr David’s possession; he says he has driven it since and the Drivetrain error messages continue to occur intermittently. When the messages occur, the vehicle sometimes goes into limp mode.
• [30] Finally, unfortunately in the week prior to the hearing the vehicle suffered an accident. Mr David said the rear left bumper was damaged in a hit and run. Mr David provided a photo of the bumper and Mr Gregory, the Tribunal’s Assessor, says the damage is significant and will likely require the bumper to be removed and replaced. He says it is also possible there is damage behind the bumper.

Mr David’s current position

• [31] Mr David maintains the vehicle continues to have the issues first identified on 8 November 2023. He says they have not been fixed.
• [32] On or about 25 September 2024, on direction by this Tribunal, Mr David had the vehicle assessed by Auckland City BMW. The purpose of the assessment was to have the vehicle’s current faults diagnosed by an independent repairer. The vehicle’s odometer read 111,729 km at the time of the assessment. The assessment cost Mr David $240.47.
• [33] Auckland City BMW’s assessment revealed several issues with the car, most notably:

(a) air mass system fault stored;

(b) turbocharger low side pressure too low;

(c) turbo control flap fault;

(d) PCV breather in the rocker cover blocked; and

(e) battery under voltage fault stored.

• [34] Mr David says he was informed by Auckland City BMW “the vehicle requires several significant repairs, including the replacement of the turbo, the rocker cover gasket, and the battery to investigate the current draw issue. These repairs are estimated to exceed $10,000”.
• [35] Mr David also says that Auckland City BMW advised that the vehicle had been tuned; he provided evidence from Autosure that the mechanical breakdown insurance may be void as a result of that tuning. Mr David says the tuning was not disclosed to him prior to purchase.
• [36] Mr David wants to reject the vehicle and be reimbursed the following costs:

(a) $230.90 for oil because of the vehicle’s high oil consumption;^[5]

(b) $200 for fuel for trips between his home in Albany, Portage Cars in New Lynn and Galeeco in Mt Wellington (he estimated this cost);

(c) compensation for time and effort spent addressing the issues, including transport costs (no specific amount claimed);

(d) personal and financial stress caused by the lack of resolution (no specific amount claimed);

(e) necessity of purchasing another vehicle to ensure reliable transportation for work and school drop-offs (no specific amount claimed);

(f) insurance payments made on the vehicle (no specific amount claimed);

(g) cost of diagnosis of $240.47 (see [32] above); and

(h) cost of jumpstart pack due to current draw issues (no specific amount claimed).

Portage Cars’ current position

• [37] Portage Cars says that Mr David should not be entitled to reject the vehicle. It says that it repaired the initial issues with the vehicle and would like to have the vehicle assessed by its own independent mechanic to diagnose any further issues.
• [38] Regarding the vehicle’s tuning, Portage Cars says it was not aware that the vehicle had been tuned until Mr David informed it.

Issue 1: Has the vehicle been of acceptable quality?

• [39] 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”.
• [40] “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.

• [41] 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.
• [42] I am guided by the evidence submitted by the parties to date, the diagnostic report from Auckland City BMW and advice from Mr Gregory when considering whether the vehicle has been of acceptable quality.
• [43] Noting that Mr David purchased the 2016 BMW for a considerable sum of $32,989, I find that the vehicle has not been as free of minor defects or as durable as a reasonable consumer would consider acceptable so soon after purchase of a vehicle of that price and age. I find the following issues with the vehicle breached the guarantee of acceptable quality:

(a) pre-existing issues with the turbo control flap;

(b) pre-existing issues with the PCV valve, as evidenced by the vehicle’s excessive oil consumption since it was purchased;

(c) pre-existing tuning of the engine’s ECU; and

(d) misted headlights, which I understand from Mr Gregory would cause a vehicle to fail a Warrant of Fitness.

Issue 2: Are the vehicle’s defects a failure of a substantial character?

• [44] A failure of a substantial character is defined in s 21 of the CGA:

21 Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

• [45] In Cooper v Ashley & Johnson Motors Limited (Cooper), the District Court noted that a purchaser may reject a vehicle where there has been an accumulation of defects that amount to a failure of a substantial character.^[6]
• [46] In Cooper, the District Court found the purchaser in that case was able to reject a vehicle where there was an accumulation of minor defects amounting 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’”.
• [47] I find that the vehicle’s accumulated defects are a failure of a substantial character for the purposes of s 21(a) of the CGA. The vehicle has had a long list of issues since the sale, many of which Mr David has allowed Portage Cars to attempt to fix. Portage Cars has successfully addressed the ABS issue, but several issues persist.
• [48] I therefore find that the vehicle’s accumulated defects are of such significance that a reasonable consumer, fully acquainted with the true nature and extent of those defects, would not have purchased the vehicle.

Issue 3: Has Mr David lost the right to reject the vehicle?

• [49] Section 20 of the CGA sets out the circumstances in which the right to reject goods may be lost:

20 Loss of right to reject goods

(1) The right to reject goods conferred by this Act shall not apply if—

(a) the right is not exercised within a reasonable time within the meaning of subsection (2); or

(b) the goods have been disposed of by the consumer, or have been lost or destroyed while in the possession of a person other than the supplier or an agent of the supplier; or

(c) the goods were damaged after delivery to the consumer for reasons not related to their state or condition at the time of supply; or

(d) the goods have been attached to or incorporated in any real or personal property and they cannot be detached or isolated without damaging them.

(2) In subsection (1)(a), the term reasonable time means a period from the time of supply of the goods in which it would be reasonable to expect the defect to become apparent having regard to—

(a) the type of goods:

(b) the use to which a consumer is likely to put them:

(c) the length of time for which it is reasonable for them to be used:

(d) the amount of use to which it is reasonable for them to be put before the defect becomes apparent.

(3) This section applies notwithstanding section 170 of the Contract and Commercial Law Act 2017.

• [50] As noted at [30] above, during the hearing Mr David gave evidence that in the week prior to the hearing, a third-party had damaged the vehicle’s rear bumper in a hit and run.
• [51] Section 20(1)(c) provides that Mr David will have lost the right to reject the vehicle if it was damaged after delivery for reasons unrelated to its condition at the time of sale.

Is the vehicle damaged?

• [52] ‘Damage’ as referred to in s 20(1)(c) is not defined in the CGA.
• [53] In Joden Finance Ltd v Prerssilp (Prerssilp),^[7] Judge Harrison found that to qualify as “damage” under s 20(1)(c) of the CGA, the damage has to amount to some loss in value of the vehicle or reasonably significant cost of repair, justifying a finding that damage greater than wear and tear has occurred.
• [54] In Prerssilp, Mr Prerssilp admitted that he had hit the kerb while parking the car. This impact had caused damage to the left rear wheel, including a flat tire. Judge Harrison found that there was no damage to the vehicle that required any repairs other than normal wear and tear, and that the curb damage was not substantial enough to qualify as “damage” under s 20(1)(c).
• [55] Judge Harrison’s decision in Prerssilp was upheld on appeal to the High Court.^[8] In the appeal, Katz J held that the District Court was right to find that minor damage to goods, such as that associated with fair wear and tear, would not result in the purchaser losing their right to reject. It was noted that if any damage could result in the loss of the rejection right, then the remedy would be in many cases ineffective, and this was at odds with the consumer protection focus of the CGA.
• [56] Mr David provided a photo of the vehicle’s rear bumper after the hearing. The photo shows the vehicle’s bumper has had a fairly big hit and Mr Gregory advises me that the bumper will at least need replacing. The repair cost will likely be significant because the entire bumper will require replacement.
• [57] Although he is not to blame, the damage means Mr David has lost the right to reject the vehicle. The vehicle has been damaged since it was sold to him and while it was in his possession, and although Mr David is happy to repair the bumper before returning it to Portage Cars, the fact that the vehicle requires the repair is sufficient to amount to damage for the purposes of s 20(1)(c) of the CGA.
• [58] Mr David will undoubtedly consider this conclusion to be severe and/or unfair, given how long he has tried to reject the vehicle and that the damage only occurred very recently. However, I have no discretion under s 20(1)(c) of the CGA. Once I am satisfied that the vehicle has been damaged while in Mr David’s possession, I have no option but to conclude that he has lost the right to reject the vehicle.

Issue 4: What remedy, if any, is Mr David entitled to under the CGA?

• [59] 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.

• [60] Although the vehicle’s accumulated defects are a failure of a substantial character, and there remain defects that require repair, Mr David is not entitled to reject the vehicle because it has been damaged. Instead, under s 18(2)(a) of the CGA he is entitled to have the defects that breach the guarantee of acceptable quality rectified within a reasonable time.
• [61] I am guided by the diagnostic report from Auckland City BMW and the advice of Mr Gregory on what defects Portage Cars must now rectify within a reasonable time. I find that Portage Cars must:

(a) investigate and repair the fault with the turbo control flap;

(b) replace the PCV valve and ensure its correct operation;

(c) remedy the cause for the headlights fogging by either repair or replacement;

(d) return the vehicle’s ECU to stock/standard tune and inform Autosure that the tune has been removed; and

(e) after the above repairs are completed, conduct an oil consumption test to ensure it is within manufacturers guidelines. If it is not within those guidelines, Portage Cars must rectify it within a reasonable time.

• [62] Auckland City BMW advised Mr David to replace the battery and to monitor current draw. I am advised by Mr Gregory that costs in relation to the battery are an ongoing maintenance cost, and not relevant to the breach of the guarantee of acceptable quality.

Other costs claimed

• [63] Under s 18(4) of the CGA, Mr David is also entitled to recover any loss or damage resulting from the vehicle’s failure of a substantial character that was reasonably foreseeable as liable to result from the failure.
• [64] I find that Mr David is entitled to recover:

(a) The $200 he has claimed for fuel trips between his home, Portage Cars and Galeeco (at [36](b) above). While this amount was an estimate from Mr David, I am satisfied on the balance of probabilities that he likely did spend around that amount on fuel as claimed. That fuel cost was reasonably foreseeable due to the need to drive the vehicle to and from Portage Cars and Galeeco for the repairs, etc as a result of the failure.

(b) The $240.47 he paid for Auckland City BMW’s assessment (at [36](g) above). That cost was reasonably foreseeable as a result of the failure and incurred to prove the nature and extent of the vehicle’s defects.

• [65] I find that Mr David is not entitled to recover the remaining costs he claims:

(a) Mr David sought to be reimbursed $230.90 for oil because of the vehicle’s high oil consumption (at [36](a) above). The evidence he provided for these costs were bank account transactions at Repco and Supercheap Auto. I accept Mr David’s evidence that he purchased oil from those two places as claimed. However, on Mr David’s own evidence he has only purchased oil on two occasions, and about a year apart. Given oil is an ordinary maintenance cost, I do not consider in those circumstances that Mr David has spent an unreasonable amount on oil for the vehicle or that it is a cost that was reasonably foreseeable as liable to result from the failure.

(b) Mr David asked to be compensated for the time and effort he has spent addressing this matter (at [36](c) above). I am not satisfied that this is an appropriate case where there should be an allowance for time spent. Mr David did not claim any specific amount and provided no evidence in support of his claim. In my view, there is not enough evidence sufficient to prove that Mr David is entitled to any compensation for his time and effort under s 18 of the CGA.

(c) Mr David sought compensation for personal and financial stress (at [36](d) above). Compensatory damages for stress and inconvenience are reserved for exceptional cases. Claims involving defective motor vehicles such as this are inherently stressful and time consuming, and the circumstances of this case are like many of the cases that come before the Tribunal where a consumer spends time, effort and emotional energy attempting to resolve the issues they have with a vehicle and dealing with the inconvenience caused. I am not satisfied that this is an exceptional case justifying an award of compensatory damages.

(d) Mr David also sought to be compensated for having to purchase another vehicle (at [36](e) above). That is not claimable loss, as it was not reasonably foreseeable as liable to result from the failure. Despite its significant shortcomings, the vehicle has remained useable (as acknowledged by Mr David who has continued to drive it intermittently (see [29] above)). Purchasing a new vehicle was not reasonably foreseeable in those circumstances.

(e) Similarly, the cost of the vehicle’s insurance cover is not a claimable loss (at [36](f) above). Mr David had the benefit of that insurance, and it is not a loss that was reasonably foreseeable as liable to result from the failure.

(f) Finally, I am not prepared to allow compensation for the cost of a jumpstart pack (at [36](h) above). Mr David provided no evidence of the cost and I decline to award it.

Outcome

• [66] Mr David’s application to reject the vehicle is dismissed.
• [67] Portage Cars must, within 10 working days of the date of this decision, pay $440.47 to Mr David.
• [68] Portage Cars must also, within a reasonable time from the date of this decision:

(a) investigate and repair the fault with the turbo control flap;

(b) replace the PCV valve and ensure its correct operation;

(c) remedy the cause for the headlights fogging by either repair or replacement;

(d) return the vehicle’s ECU to stock/standard tune and inform Autosure that the tune has been removed; and

(e) after the above repairs are completed, conduct an oil consumption test to ensure it is within manufacturers guidelines. If it is not within those guidelines, Portage Cars must rectify it within a reasonable time of the date of this decision.

C Euden
Adjudicator

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^[1] In addition to the vehicle price of $32,989, Mr David also paid $495 for On Road costs and $2,415 for 3-year mechanical breakdown insurance through Autosure Insurance (a business brand of DPL Insurance Limited).
^[2] In April 2023, Avanti Finance acquired Finance Central from Limelight Financial Services Limited. Mr David’s loan transferred to Avanti Finance because of that acquisition.
^[3] An invoice provided by Portage Cars shows it was charged $207 by DJ Windscreen and Auto Light Repair to repair the headlights on or about 17 November 2023.
^[4] The invoice included an excess fee of $350 which Portage Cars said it paid.

^[5] Mr David says he spent $96 on oil on 22 October 2023 and $134.90 on oil on 26 September 2024.

^[6] Cooper v Ashley & Johnson Motors Ltd (1996) 7 TCLR 407 (DC).

^[7] Joden Finance Ltd v Prerssilp [2020] NZDC 12239.

^[8] Joden Finance Ltd v Auckland District Court [2021] NZHC 823, (2021) 16 TCLR 75.