Papps v 2 Cheap Cars Ltd - Reference No. MVD 273/2024 [2024] NZMVDT 231 (18 December 2024)

Last Updated: 22 January 2025

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 273/2024 [2024] NZMVDT 31 BETWEEN GREGORY ROGER PAPPS Applicant AND 2 CHEAP CARS LIMITED Respondent

HEARINGS at Auckland on 12 October 2024 and 12 December 2024 (by audio-visual link) MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Haynes, Assessor

APPEARANCES

G Papps, Applicant

G Moore, for the respondent at the first hearing and S Koswara for the respondent at the second hearing.

DATE OF DECISION 18 December 2024

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DECISION OF THE TRIBUNAL

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1. 2 Cheap Cars Ltd must pay the sum of $3,995.15 to Gregory Papps within 10 working days of the date of this decision.

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REASONS

Introduction

• [1] Gregory George Papps purchased a 2012 Toyota Avensis from 2 Cheap Cars Ltd (2CL) on 9 January 2024 for $10,559. He claims that the vehicle has had a number of faults, including further faults which occurred due to 2CL’s workmanship when it attempted repairs. He has given 2CL two opportunities to repair the vehicle and he now claims the costs which he incurred in having the faults repaired himself. He also claims his consequential losses.
• [2] There were two hearings of this matter. During the course of the first hearing, 2CL accepted responsibility to repair the faults, accepting that they were a failure of the guarantee of acceptable quality. Its position was that it wanted a further opportunity to remedy the faults but accepted the reality that it already had two prior attempts. It expressed a willingness however to negotiate a satisfactory resolution with Mr Papps after the hearing.^[1]
• [3] After the first hearing, I issued a minute in which I set out in detail all of the repairs that were discussed and agreed by the parties at the outset of the first hearing.
• [4] Mr Papps and 2CL did not reach any settlement.
• [5] The purpose of the second hearing was therefore for Mr Papps to submit relevant invoices and documentation to the Tribunal relating to his costs so that I could determine what costs should be reimbursed to him by 2CL.

The issues

• [6] The issues requiring my 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 Papps entitled to under the CGA?

Evidence

• [7] Mr Papps gave evidence at both hearings. For 2CL, Garry Moore, its General Manager Operations, gave evidence at the first hearing. At the second hearing, Samuel Koswara, an Operations Manager employed with 2CL gave evidence. Mr Moore did not give any evidence at the second hearing.

Relevant background

• [8] Mr Papps claims that the vehicle suffered faults from the date of purchase.
• [9] On his drive home after taking possession of the vehicle, he noticed that there was a noise coming from the front suspension and the air conditioning fan control panel.
• [10] Over the next few weeks Mr Papps also noticed rust under the front windscreen as well as some minor scratches on the bonnet.

Mr Papps contacts 2CL

• [11] Mr Papps contacted 2CL about these issues and it agreed to repairs to the air-conditioning control panel and the front shock absorbers (the source of the front suspension noise). It was also agreed to cut and polish the minor scratches on the bonnet, and, as a measure of good faith, to cut and polish the whole vehicle.
• [12] At the same time these repairs were to be performed, 2CL fitted a new radio into the vehicle, at the separate expense of Mr Papps.
• [13] In the course of performing these repairs, Mr Papps claims that 2CL:

(a) Replaced the air conditioning panel with a part from another vehicle with a different colour.

(b) When the new radio was fitted, the aerial was changed from the shark fin style to a standard style, causing damage to the roof. Mr Papps claims that the photo of the new aerial shows that it is obvious that someone has tried to scrape the glue off, resulting in deep paint scratching which has subsequently rusted.

(c) The vehicle’s paintwork was badly scratched by improper polishing and as a result the polishing process damaged multiple pieces of plastic trim, the window trim and the wing mirrors when these components appear to have been hit with a polishing machine. The wing mirror rubbers collapsed due to being hit with the polisher. Likewise the window trim, the window trim rubber on all four doors, and the plastic panel around the window wipers all crumbled and fell away, all as a result of having been hit with the polisher. Mr Papps says the overall paint finish was left with swirls and scratches due to a defect in the polishing process and technique.

Leak and knocking sound

• [14] On 21 February 2024, Mr Papps noticed water staining near the front left pillar. This suggested to him that there may have been a leak which has been present for some time.
• [15] At about the same time, he also noticed a knocking noise coming from the front right wheel area.

Vehicle fails a warrant of fitness (WOF)

• [16] On 3 April 2024, Mr Papps took the vehicle for a WOF check. The vehicle failed a WOF because the front right strut mount was loose. The WOF check sheet records that the vehicle’s odometer reading was then 91,019 km.
• [17] Mr Papps believes that the strut may have become loose when it was removed by 2CL to replace the shock.
• [18] He paid $80 for that WOF check.

Waihi Auto Spray Ltd examines the vehicle

• [19] Mr Papps next took the vehicle to Waihi Auto Spray Ltd to obtain a quote to repair the paint damage caused by the defective cut and polish.
• [20] Mr Van der Hulst, a director of that company, gave evidence at the hearing. He also provided a report. In his report he said that:

there were still very fine scratches all over the car which is consistent with not being properly polished, the roof had been repainted to fix the scratches around the new aerial but in my opinion it is not up to a acceptable quality they have attempted to polish the newly painted roof and now there is the same scratches all over the roof which are consistent with the rest of the car, there is also damage to the new aerial that they fitted, there is overspray and excess paint on the adjacent trims and mouldings and paint damage to the roof mouldings which were not removed, all this could have been avoided had these parts been removed off the vehicle which is the way most reputable repair shops would go about it.

• [21] His conclusion was that there was now more work involved in fixing these extra issues than there would have been to start with.
• [22] In relation to the water staining, he wet the left-hand windscreen area and found that there was water leaking into the inside of the vehicle from that area.
• [23] He produced a quote for all repairs, including the water ingress, the rust and the paintwork of $1,460.50.

Mr Papps contacts 2CL

• [24] Mr Papps sent an email to 2CL on 9 April 2024, raising all of the foregoing issues. An agreement was reached for him to bring the vehicle back to 2CL on 19 April 2024.
• [25] He took the vehicle back for further repairs and then uplifted it on 1 May 2024
• [26] He considered that the vehicle has not been repaired properly and at the first hearing, claims that the following faults were outstanding:

(a) the leak has not been repaired

(b) the paintwork is now in a worse condition than before. Mr Papps claims that there are now new scratches on the roof and scratches on the area that was recently painted

(c) damage to the roof rails where the painter’s masking tape has caused damage when being removed

(d) a subtle knock is coming from the front strut area that has continue to worsen (Mr Papps is not pursuing this),

(e) Bees wax was used on the repair and there is sticky residue on the doors.

(f) The aerial was not restored to the regional shark fin aerial.

The first hearing

• [27] 2CL fully accepted at the first hearing that it bore responsibility for the faults. It accepts there were faults with the vehicle that failed the guarantee of acceptable quality, as noted above.
• [28] During the first hearing, it did not challenge Mr Papps’ rights to have the repairs undertaken himself but was hopeful to be able to reduce cost by obtaining some of the parts.
• [29] The parties had a discussion about the extent of repairs at the outset of the first hearing, given 2CL’s concession. They agreed that repairs were necessary to remedy the following issues::

(a) Scratched and damaged paint, arising from the cut and polish that was initially done by 2CL.

(b) Water leak in the front passenger pillar area,

(c) Aerial to be changed back to the original shark fin type and any roof damage repaired.

(d) Wing mirrors to be replaced due to the damaged rubber seals which are part of the wing mirrors.

(e) Door trim to be replaced due to the damage that occurred during the initial cut and polish.

(f) Window trim to be replaced due to the damage that occurred during the initial cut and polish.

(g) Roof rails to be replaced. During the short cut and polish, a yellow masking tape peeled off the coating of the roof rails when it was removed. The roof rails are now damaged.

(h) Boot lugs to be replaced. These were removed when the spoiler was removed and when it was replaced. The spoiler has now become loose causing the brake lights to fall out.

• [30] Prior to the first hearing, Mr Papps has obtained a fresh quote from Waihi Auto Spray for repair of all rust, paint and water ingress of $2,265.50 and he had costings for various other parts.
• [31] I explained to Mr Papps at the first hearing that he would not be entitled to the quoted cost of repairs before he has actually incurred the cost of any repair. I also advised Mr Papps that if this claim is upheld then I would only consider allowing costs that are reasonable and that betterment may need to be taken into account.
• [32] The matter was adjourned for settlement discussions and then for Mr Papps to complete any repairs he wished and to submit any invoices to the Tribunal.

Further submissions and evidence provided by Mr Papps following the hearing.

• [33] On 11 November 2024, Mr Papps provided further information to the Tribunal. At this stage the matter was set down for further hearing.
• [34] Mr Papps is claiming:

Repairs undertaken by Waihi Auto Sprayers

and cost of parts $3,725.15

the cost of the warrant of fitness (WOF) inspection $80.00

the steering inspection $66.13

reimbursement of travel costs 810 km

(being the cost of travelling to and from

Auckland on two occasions for repairs) $300.00

Loss of income for three days taken

off work to deal with issues to do with the

vehicle $600.00

Cost of filing the application including

postage and the cost of USB drives $99.58

loss of value to the vehicle

Mr Papps claims he was unable

to find a lower front grill or suitable

shark fin type aerial $500.00

• [35] Mr Koswara was at somewhat of a disadvantage in making submissions on behalf of 2CL, only having picked up the file the day prior to the second hearing. He did not have all of the paperwork and did not have a copy of the minute following the first hearing.
• [36] He therefore made submissions that 2CL had wanted the opportunity to repair the vehicle but as I explained to him, that position was difficult to contend for, given the two prior attempts at repair, and the concessions of 2CL at the first hearing.

Was the vehicle of acceptable quality?

• [37] 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.
• [38] 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.

• [39] 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.
• [40] I consider that the windscreen leak, the condition of the paintwork, the damage to the roof rails, the perished rubber seals around the wing mirrors and the door and window trims, the residue on the doors, the aerial not being restored to its original condition, and the missing boot lugs all amount to failures of the guarantee of acceptable quality. Those faults which specifically arose out of the faulty cut and polish (for example the paintwork) alternatively amount to a failure of the guarantee as to reasonable care and skill under s 28 of the CGA.
• [41] These faults would not be considered acceptable by a reasonable purchaser of this vehicle, given its age, price, and mileage. It is to be expected that repairs of faults would be carried out with reasonable care and skill.
• [42] In any event, 2CL concedes that these faults and the condition of the vehicle meant that it failed the guarantee of acceptable quality.

Issue 2: What remedy is Mr Papps entitled to under the CGA?

• [43] Mr Papps was entitled to have the failures remedied elsewhere and claim the reasonable costs associated with those repairs pursuant to s 18(2)(b)(i) of the CGA because I consider that he had already given 2CL ample opportunity of repair. I was not persuaded by Mr Koswara that 2CL should have been given yet a further opportunity of repair. It had had two opportunities prior to the first hearing. It then had a further opportunity after the first hearing to obtain some of these parts cheaper but made no contact with Mr Papps.
• [44] I now deal with each of the items claimed by Mr Papps.

Waihi Auto Spray invoice

• [45] I consider this invoice, being $2,127.50, to be reasonable for the work that was done and I find that this is payable to Mr Papps by 2CL. Mr Koswara submitted that 2CL had obtained an alternative quote for this work at $736 to repaint the roof but I note that the quote was sight unseen and does not include all of the other work that was undertaken by Waihi Auto Spray.

Parts invoices

• [46] Mr Papps fully took on board the Tribunal’s remarks at the prior hearing and spent some time searching out second-hand parts. He was able to obtain some of the second-hand parts for the repair work undertaken by Waihi Auto Spray, specifically $468.50 to Taranaki Parts World for parts including for second hand weather strips and $479.15 to Tony Richards Toyota for other miscellaneous parts including the mouldings and some clips, screws and bolts.
• [47] I consider that these sums should be reimbursed to him by 2CL. I accept Mr Papps’ evidence that some of these parts were new, because he could not get them second-hand. I accept his evidence that he attempted to find second-hand parts he could.
• [48] Mr Koswara submitted that the cost of the weather strips should be much cheaper but he provided no corroborating evidence in that regard. He did not have any other alternative pricings for other parts.
• [49] Mr Papps claimed the cost of wing mirrors that he obtained on Trade Me. The cost was $650 and these were second-hand. In fact, the broken part that he was replacing was the rubbers around the wing mirrors. Having collapsed, the wing mirrors could not then be used.
• [50] Mr Koswara was not a position to advance any submissions on this aspect.
• [51] I find that the parts cost of $650 for the wing mirrors was reasonable. This sum must be paid by 2CL to Mr Papps.

The WOF inspection and the steering inspection

• [52] Mr Papps claimed the sum of $80 for the WOF inspection noted above and a steering inspection undertaken by Barry Armstrong Motors on 12 June 2024. Mr Papps asked Barry Armstrong Motors to check the vehicle for a noise in the steering but the invoice that was produced records “all okay”.
• [53] I am not prepared to allow either of these losses because they are not reasonably foreseeable as liable to result from the failures I have found above. They may well relate to other failures but they are not failures that I have found to be currently proven.

The cost of petrol

• [54] Mr Papps claims the cost of travel to and from Auckland on three occasions. He lives in Waihi and claims $300 for mileage of 810 km.
• [55] At the current cost of petrol for this vehicle, I consider that approximately $80 of petrol per trip would not be unreasonable. I am therefore prepared to allow $240 compensation to Mr Papps on the basis that it is loss that is reasonably foreseeable as liable to result from the failures I have found above.

Time taken off work

• [56] Mr Papps claims losses of $600 because he had to take three days off work to bring the vehicle back to Auckland.
• [57] When parties bring claims before the Tribunal, it is their responsibility to put before the Tribunal corroborating documentation or proof that supports their claims for losses. Mr Papps advises me that he is a landscape gardener but put no evidence before the Tribunal regarding his actual losses for those three days. He accepted that he would have caught up on any work that he missed so has not suffered an out-of-pocket loss as such.
• [58] I do not consider he has proven any losses for time taken off work.

The filing fee, cost of USB sticks and postage

• [59] The filing fee is not recoverable because 2CL has appeared before the Tribunal and has engaged with Mr Papps in attempting to resolve this matter, albeit not to Mr Papps’ satisfaction. The amount claimed for USB sticks was $49.58. I consider that this would be an appropriate case to allow some compensation for this disbursement. I will allow Mr Papps recovery of $30 because I consider he needs to wear some of this cost himself. It is a normal incidence of filing claims in a Tribunal that there might be minor disbursements of this nature.

Loss of value to the vehicle

• [60] Mr Papps claims $500 “loss of value” to the vehicle on the basis that he was unable to find a lower front grill or a suitable shark fin type aerial.
• [61] Once again, he has put no evidence before the Tribunal as to quantification of this aspect of his claim and I do not allow it. He carries the burden of proving his claim on the balance of probabilities and there was no evidence at all as to loss of value.
• [62] All of the amounts that I have found above must be paid within 10 working days of the date of this decision.

DATED at AUCKLAND this 18^th day of December 2024

D Watson
Adjudicator

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^[1] At the commencement of the second hearing, I provided a re-cap of the position reached at the end of the first hearing and Mr Koswara agreed with my summary.