Adams v Landseer Motor Investments Auckland Limited t/a Andrew Simms used vehicles Manukau - Reference No. MVD 367/2024 [2024] NZMVDT 229 (7 November 2024)

Last Updated: 1 January 2025

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 367/2024 [2024] NZMVDT 229 BETWEEN KRISTIN ADAMS Applicant AND LANDSEER MOTOR INVESTMENTS AUCKLAND LIMITED T/A ANDREW SIMMS USED VEHICLES MANUKAU Respondent

HEARING at AUCKLAND on 5 November 2024 MEMBERS OF TRIBUNAL

C Euden – Adjudicator S Gregory – Assessor (by audio-visual link)

APPEARANCES

K Adams, Applicant P Adams, Witness for the Applicant

C Bartlett, for the Respondent (by audio-visual link)

DATE OF DECISION 7 November 2024

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

1. Landseer Motor Investments Auckland Limited must, within five days of the date of this decision, pay $867.59 to Ms Adams.

_________________________________________________________________

REASONS

Introduction

• [1] Ms Adams purchased a 2015 Volkswagen Golf for $17,990 from Landseer Motor Investments Auckland Limited trading as Andrew Simms Used Vehicles Manukau (ASM) on 24 February 2024.
• [2] Ms Adams seeks reimbursement for repairs conducted on the vehicle less than three months after she purchased it.
• [3] ASM’s position is it has not yet reimbursed Ms Adams because it is not satisfied that she paid the amount she claims.

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) Has ASM refused or failed to rectify the vehicle’s defects within a reasonable time?

(c) What remedy, if any, is Ms Adams entitled to under the CGA?

Relevant background

• [5] Ms Adams purchased the vehicle for $17,990 from ASM on 24 February 2024 together with mechanical breakdown insurance for $2,587.50. The odometer at the time read 103,499 km.
• [6] The total purchase cost Ms Adams $20,577.50 and she financed her purchase with a loan from Branded Financial Services (NZ) Limited.
• [7] On 10 May 2024 Ms Adams contacted ASM after an oil spot from her vehicle was spotted on her driveway. She spoke with Ms Hattingh who advised her to make a claim through Autosure (the insurance provider listed on Ms Adams’ vehicle offer and sale agreement). Ms Adams tried to do so but did not know her policy number at the time and Autosure could not find any policy for her.
• [8] On 12 May 2024, Mr Adams (Ms Adams’ father) contacted ASM on Ms Adams’ behalf. In that email he noted Ms Adams had tried to make a claim via Autosure but it could not locate her policy, and also noted that “she has only had the car for 10 weeks, I think all works needed to remedy issues should be covered by Andrew Simms Manukau”.
• [9] ASM did not respond so Mr Adams followed up via email on 15 May 2024. Ms Hattingh responded that day by email; she advised Mr Adams to contact Protecta Insurance instead. She also spoke with Mr Adams that day, and they agreed for Ms Adams to make the insurance claim and pay the excess fee, after which ASM would reimburse her.^[1]
• [10] Barry Clarke Automotive Glen Eden Limited (Barry Clarke Automotive) inspected the leak and determined that it was coming from the oil sump. On 14 June 2024 it repaired the leak by fitting the sump/oil level sensor with new gaskets. It also replaced the oil filter/o-ring and filled it with fresh oil.
• [11] Ms Adams paid Barry Clarke Automotive $733.81, together with a $4.68 electronic payment surcharge. $500 was paid in cash and was the excess for her claim through Protecta; the remainder was paid via contactless payment and was the amount not covered by Protecta.^[2]
• [12] Ms Adams subsequently asked for reimbursement from ASM (her first request was on 16 June 2024). She confirmed that she had paid $500 in cash and $238.49 via electronic payment.^[3] She provided a copy of her receipt for the electronic payment and invited ASM to contact Barry Clarke Automotive to verify the $500 cash payment; it did not do so and has not done so to date.
• [13] Subsequently, Barry Clarke Automotive emailed ASM directly on 21 June 2024 to confirm:

Verifying that Kristin Adams paid the $500 excess fee with cash. It is located on the invoice on the bottom labelled Excess then to the side it will say $434.78 which is plus gst

• [14] To date ASM has not reimbursed Ms Adams. On behalf of ASM, Mr Bartlett said Ms Adams has not yet been reimbursed because ASM was not satisfied with the evidence of payment she has provided. Mr Bartlett also confirmed it has not contacted Barry Clarke Automotive to confirm the cash payment, nor has it asked Ms Adams to provide any other evidence.
• [15] Ms Adams filed her claim in this Tribunal on 31 July 2024.

Issue 1: Has the vehicle been of acceptable quality?

• [16] 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”.
• [17] “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.

...

• [18] 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.
• [19] I am satisfied that the oil sump’s leak was a failure of acceptable quality. The leak was due to a worn sump gasket and oil level sensor and occurred within three months of Ms Adams’ purchase of the vehicle. In the circumstances, given the vehicle’s age, mileage and particularly its price, I am satisfied that the vehicle was not free of minor defects or as durable as a reasonable consumer would consider acceptable.

Issue 2: Has ASM refused, neglected, or failed to rectify the vehicle’s defects within a reasonable time?

• [20] Section 18(2)(b)(i) of the CGA enables a consumer to require the supplier to remedy the failure of acceptable quality.
• [21] Section 18 relevantly 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.

• [22] Under s 18(2)(b)(i), ASM was required to repair the oil sump leak. ASM neglected to do so by directing Ms Adams to make a claim against her mechanical breakdown insurance.

Issue 3: What remedy, if any, is Ms Adams entitled to under the CGA?

• [23] Under s 18(2)(b)(i) Ms Adams is entitled to be reimbursed all amounts she has paid in relation to the oil sump leak.
• [24] ASM’s position is that it is not satisfied that Ms Adams’ has paid the sums she claims. I find that position unreasonable; Ms Adams has provided proof of electronic payment of $238.49, and Barry Clarke Automotive has confirmed her claim that she paid an additional $500 to it in cash. Furthermore, ASM has not asked Ms Adams or Barry Clarke Automotive for any other evidence of payment.
• [25] I am satisfied on the balance of probabilities that Ms Adams paid $733.81 to Barry Clarke Automotive for its work in relation to the oil sump leak, together with a $4.68 surcharge on the electronic payment portion. She is entitled to recover both amounts from ASM.

Tribunal filing fee and parking costs

• [26] Ms Adams paid the $84 Tribunal filing fee to bring her claim and spent $45.10 on parking to attend the hearing.
• [27] The Tribunal may only award such costs against a party where:

(a) the proceedings are frivolous or vexatious or ought never to have been brought;^[4]

(b) the matter ought reasonably to have been settled before a hearing, but that party refused, without reasonable excuse, to participate in pre-hearing settlement discussions ordered by the Tribunal or acted in a contemptuous or improper manner during those discussion;^[5] or

(c) the party fails to attend the hearing without reasonable cause.^[6]

• [28] The first and third grounds do not apply here.
• [29] I have considered whether the matter ought reasonably to have been settled before the hearing and asked Mr Bartlett during the hearing for his position on the matter. Mr Bartlett said the matter was not settled before the hearing because he considered ASM’s position, that more evidence of the payments was required, was clear.
• [30] I find that it was not clear that ASM required more evidence of the payments (particularly the cash component). ASM did not respond to Barry Clarke Automotive’s email, which confirmed the cash payment, nor did it ask Ms Adams to provide any further evidence. In the circumstances, I do not consider it was at all clear that ASM wanted additional evidence before it would make any payment.
• [31] I also note that ASM could have at least refunded Ms Adams the amount she paid which was evidenced by the electronic payment receipt; particularly as Ms Hattingh confirmed via email on 20 June 2024 that the receipt payment for the $238.49 was fine for reimbursement.
• [32] ASM also did not participate in the matter prior to the hearing. By letter dated 1 August 2024 this Tribunal informed ASM that under cl 5(1)(b) of sch 1 of the Motor Vehicle Sales Act 2003 (the MVSA), ASM was required to, in good faith, discuss the application with Ms Adams and to make a written report to the Tribunal on the outcome of those discussions. The Tribunal’s letter noted, in bold, that if ASM failed to discuss the application with Ms Adams, then the Tribunal might award costs against it. ASM did not discuss the application with Ms Adams, nor did it report back to the Tribunal.
• [33] In light of all of the above, pursuant to cl 14(1)(a)(ii) of sch 1 of the MVSA, I am satisfied that Ms Adams’ claim ought reasonably to have been settled before the hearing, but ASM refused, without reasonable excuse, to participate in the pre-hearing settlement discussions ordered by the Tribunal. Accordingly, I find that Ms Adams is entitled to recover from ASM the $84 Tribunal filing fee and $45.10 parking costs.

Outcome

• [34] ASM must, within five days of the date of this decision, pay $867.59 to Ms Adams.

C Euden
Adjudicator

---

^[1] As confirmed in an email from Mr Adams to Ms Hattingh on 16 May 2024.
^[2] Mechanical breakdown policies often do not pay for expendables and service items. The $233.81 extra that Ms Adams paid was for such items.

^[3] That includes the $4.68 payment surcharge.

^[4] Motor Vehicle Sales Act 2003, sch 1 cl 14(1)(a)(i).

^[5] Sch 1 cl 14(1)(a)(ii).

^[6] Sch 1 cl 14(1)(b).