Singh v Maxmatch Autos Ltd Reference No. MVD 361/2024 [2024] NZMVDT 211 (29 October 2024)

Last Updated: 4 December 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 361/2024 [2024] NZMVDT 211 BETWEEN MANJINDER SINGH Applicant AND MAXMATCH AUTOS LIMITED Respondent

HEARING at AUCKLAND on 7 October 2024 (by audio-visual link) MEMBERS OF TRIBUNAL

M Orange, Barrister – Adjudicator

A Cate – Assessor

APPEARANCES

M Singh, Applicant

K Baker, Witness for the Applicant

A Ullah, Director of the Respondent

DATE OF DECISION 29 October 2024

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DECISION OF THE TRIBUNAL

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A The claim for rejection is dismissed.

2. Within 10 working days, Maxmatch is to pay Mr Singh the following sums:
   1. $149.50 for costs incurred in obtaining a diagnostic report; and
   2. $80 towards the cost of delivering the vehicle to Maxmatch.

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REASONS

Introduction

• [1] Mr Singh purchased a 2015 Mazda Axela Hybrid for $17,400 from Maxmatch Autos Limited (Maxmatch) on 21 May 2024.

The issues

• [2] The issues requiring the Tribunal's consideration in this case are:

(a) Can Mr Singh reject the vehicle?

(b) Should Mr Singh be reimbursed for expenses incurred?

(c) Should Maxmatch repair new issues that are alleged to have arisen?

Relevant background

• [3] Within a week of Mr Singh purchasing the vehicle, he noticed an issue with the heater. It was not producing hot air, and it would not clear mist from the windscreen. He contacted Maxmatch on 7 June 2024 and informed them of the fault. An issue with the heater core was subsequently diagnosed. Mr Singh obtained the diagnosis after Maxmatch did not find a fault when it checked the vehicle on 14 June 2024. Mr Singh paid $149.50 for that diagnosis, and he seeks reimbursement for it.
• [4] Maxmatch collected the vehicle on 28 June 2024 and carried out the required repairs, which were completed on 17 July 2024. Between 28 June and 17 July 2024, Mr Singh made enquiries with Maxmatch to ascertain progress with the repairs. On 12 July 2024, Mr Singh travelled from Hamilton, where he resides, to Auckland, where the vehicle was purchased, to uplift it. The vehicle was not ready, and Mr Singh was then provided with a courtesy car. On 16 July 2024, Mr Singh wrote to Maxmatch, rejecting the vehicle. When he was informed the next day that the vehicle was ready to be picked up, Mr Singh responded, stating that he would accept the vehicle, subject to his being reimbursed for the diagnosis fee he had incurred and compensated for consequential damages. Maxmatch denied liability for consequential damages.
• [5] On 24 July 2024, following the completion of the repair on the heater, Mr Singh took back possession of the vehicle.
• [6] On 29 July 2024, Mr Singh filed his claim with the Tribunal. In it, he sought the rejection of the vehicle and reimbursement of the diagnosis fee. He subsequently sought payment of $80 for fuel costs to get the vehicle to Auckland and $250 for petrol money that he paid a friend who provided him with transport when he was without his vehicle.
• [7] Mr Singh has, since retaking possession and after filing his claim with the Tribunal, also raised issues with a display and a hybrid battery warning light. He has stated that they are intermittent, and he has engaged with Maxmatch and a Mazda dealer, neither of whom has been able to identify nor diagnose a fault. He now seeks a remedy for those issues.
• [8] In support of his application to reject the vehicle, Mr Singh noted the difficulties he had dealing with Maxmatch and the hardship caused to him and his family.
• [9] Mr Ullah, for Maxmatch, stated that he had always been prepared to reimburse Mr Singh for the $149.50 he incurred for a fault diagnosis but that he was not prepared to compensate Mr Singh for consequential losses. Mr Ullah indicated that if the alleged display and hybrid battery issues could be identified or diagnosed, Maxmatch would engage with Mr Singh to get them repaired.
• [10] Mr Ullah also submitted that Mr Singh had been using the vehicle for business purposes as an Uber driver, a claim that Mr Singh accepted, stating that he had used the vehicle for approximately one day a week as an Uber driver but that it was only up until the vehicle went to Maxmatch for repairs.

Issue 1: Can Mr Singh reject the vehicle?

• [11] I will first deal with the question of whether or not Mr Singh can reject the vehicle.
• [12] Section 18(2)(b)(ii) of the Consumer Guarantees Act 1993 (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.
• [13] A consumer can lose the right to reject under s 20 of the CGA if the right is not exercised within a reasonable time. I find that Mr Singh's rejection notice, which he sent on 16 July 2024, was issued within a reasonable period of time, and, as such, he did not lose the right to reject.
• [14] The question is whether Maxmatch has failed or refused to repair the vehicle within a reasonable period of time. Alternatively, Mr Singh could reject the vehicle if he can establish that there has been a failure of a substantial character, which 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.

• [15] Dealing first with s 18 of the CGA and the repairs. Mr Singh identified the issue requiring repair on 7 June 2024, and repairs were undertaken by Maxmatch from 28 June 2024. The vehicle was repaired and was ready to be picked up on 17 July 2024. On the basis of those facts, it is clear that Maxmatch did not fail or refuse to repair the vehicle and I find that the completed repairs were done within a reasonable period of time.
• [16] Turning to the alternative of the vehicle’s fault being of substantial character or unable of being remedied within a reasonable time; the issue with the vehicle (the faulty heater) that was made known when the rejection letter was sent has been repaired. That issue cannot, therefore, substantiate a ground to reject.
• [17] All that remains are the new issues that Mr Singh has raised. Because those issues have not yet been identified or diagnosed, they cannot support a rejection. Further, they would not, of themselves, render the vehicle substantially unfit.
• [18] On the basis of the above, Mr Singh's application to reject the vehicle is dismissed.

Issue 2: Should Mr Singh be reimbursed for expenses incurred?

• [19] There are three expenses that need to be considered. The first is $149.50 for a diagnosis report, the second is $80 for fuel to deliver the vehicle to Auckland for repairs, and the third is $250 for petrol money Mr Singh paid to a friend. Mr Ullah gave evidence that Mr Singh had sought further consequential losses from Maxmatch, including loss of income. Mr Singh did not pursue those claims before the Tribunal.
• [20] Under s 18(4) of the CGA, a consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from a failure to comply with a guarantee which was reasonably foreseeable as liable to result from the failure.
• [21] Mr Singh obtained the diagnosis report after Maxmatch had inspected the vehicle and had been unable to establish a fault. Mr Singh's diagnosis report identified the fault, which was subsequently repaired by Maxmatch.
• [22] The malfunctioning heater was a failure of the guarantee of acceptable quality provided in s 6 of the CGA. I make that finding on the basis that, under s 7(1)(a) and 7(1)(c) of the CGA, a good is of acceptable quality if it is fit for all the purposes for which goods of the type in question are commonly supplied, and is free from minor defects, which the vehicle was not because of the heater malfunction. Because there had been a breach of the guarantee of acceptable quality, I find that the costs of the diagnosis report incurred by Mr Singh were reasonably foreseeable and that Maxmatch should reimburse him.
• [23] Mr Singh incurred the $80 fuel expense when he delivered the vehicle to Auckland for repairs to be carried out. Mr Singh has not provided any receipts for the expense. Mr Ullah's evidence was that Maxmatch had offered to pick up the vehicle at their expense but that Mr Singh had declined the offer.
• [24] If Maxmatch had picked up the vehicle, it would have incurred an expense. It is not, therefore, unreasonable for Maxmatch to pay some form of contribution towards expenses incurred by Mr Singh in delivering the vehicle. The expense, however, needs to be quantified. One method is to use the Inland Revenue Department’s rate for the use of a private vehicle for business purposes.^[1] Using that method, the amount sought of $80 is not unreasonable. I therefore find that Mr Singh should be reimbursed that amount.
• [25] The remaining amount to be considered is the $250 petrol money paid to a friend when Mr Singh did not have a vehicle. The expense related to personal travel, including travelling to work. Those are expenses that Mr Singh would have incurred regardless. As such, it is not reasonable for Maxmatch to pay those expenses.

Issue 3: Should Maxmatch repair the new issues?

• [26] The display and hybrid battery issues have not been identified or diagnosed, notwithstanding qualified persons attempting to do so. Maxmatch's conduct to date has not been unreasonable, and it is taking a responsible position and offering to deal with the issues if they can be substantiated. As there are no identified issues, I cannot make any orders regarding them.

Outcome

• [27] The claim for rejection is dismissed.
• [28] Within 10 working days, Maxmatch is to pay Mr Singh the following sums:

(a) $149.50 for costs incurred in obtaining a diagnostic report; and

(b) $80 towards the cost of delivering the vehicle to Maxmatch.

M Orange
Adjudicator

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^[1] https://www.taxtechnical.ird.govt.nz/operational-statements/2024/os-19-04-km-2024