Leclercq v Autosave 2021 Limited - Reference No. MVD 429/2024 [2024] NZMVDT 291 (6 December 2024)

Last Updated: 25 January 2025

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 429/2024 [2024] NZMVDT 291 BETWEEN FRANCK LECLERCQ Applicant AND AUTOSAVE 2021 LIMITED Respondent

MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Haynes, Assessor

HEARING at Auckland on 14 November 2024 (by audio-visual link)

APPEARANCES

F Leclercq, Applicant

O Ishina, for the Respondent

DATE OF DECISION 6 December 2024

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DECISION OF THE TRIBUNAL

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1. Autosave 2021 Ltd must, within a reasonable time from the date of this decision, uplift the vehicle from Franck Leclercq at its cost and remedy:
   1. the fault that is causing the vehicle to pull to the left, and
   2. the worn front lower suspension control arm bushes.
2. Once these repairs are undertaken, Autosave 2021 Ltd must return the vehicle to Mr Leclercq, at its cost.

100. Autosave must pay the sum of $961.50 to Mr Leclercq within 10 working days of the date of this decision.

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REASONS

Introduction

• [1] Franck Leclercq purchased a 2006 Honda CRV on 18 July 2024 from Autosave 2021 Limited (Autosave) for $5,400. The odometer reading on the vehicle was then 201,320 km. He wants to reject the vehicle which he claims has consistently suffered from a fault whereby it drifts to the left.
• [2] Autosave claims that it has performed adequate repairs on the vehicle and that any ongoing fault has not been diagnosed. It says also that this was an older vehicle with high mileage at the time of purchase and that any reasonable consumer should have realistic expectations about such a vehicle.

The issue

• [3] The issue requiring the Tribunal’s consideration in this case is whether the vehicle has been of acceptable quality for the purposes of s 6 of the Consumer Guarantees Act 1993 (the CGA)?

Relevant background

• [4] Mr Leclercq noticed the vehicle first pulling to the left during the test drive. He claims that the salesperson he dealt with, Brad Geary, told him that the vehicle just needed a wheel alignment.
• [5] Mr Leclercq also noticed after the test drive that there appeared to be a residue of oil on the engine but Mr Geary told him that this was just “excess oil”.
• [6] Autosave agreed to lower the price to allow for the cost of an alignment.
• [7] On 30 July 2024, Mr Leclercq took the vehicle to Bridgestone for the wheel alignment.
• [8] Bridgestone told Mr Leclercq that the vehicle needed other repairs but that it would not do a quote because there was an oil leak that “was major and was going for a while”.

Mr Leclercq took the vehicle back to Autosave for repairs

• [9] Mr Leclercq then took the vehicle to Autosave for it to fix the oil leak.
• [10] On 3 August 2024, Mr Leclercq took the vehicle to Tony’s Tyres for the wheel alignment but Tony’s Tyres told him that there was a “weird vibration” on the tyres.
• [11] Mr Leclercq then telephoned Mr Geary and said he wanted to reject the vehicle for a refund. Mr Geary asked him to bring the vehicle back to Autosave to troubleshoot the problem and so it could do the alignment.

Mr Leclercq takes the vehicle back to Autosave for a second time

• [12] On 7 August 2024, Mr Leclercq returned the vehicle to Autosave. Autosave arranged for the vehicle to be sent to its mechanic, Izzi Automotive Ltd (IAL).
• [13] On 14 August 2024, the vehicle was ready for Mr Leclercq to pick up. Autosave said it replaced several items including the wheel arm, control arm and shocks. Autosave confirmed that the drifting to the left fault had been fixed and that a wheel alignment had been performed.

Mr Leclercq takes the vehicle back to Autosave’s mechanic

• [14] On the drive home, Mr Leclercq once again felt the vehicle pulling to the left and vibrating even more. He telephoned Mr Geary who said to speak directly to IAL, because it had done the repairs.
• [15] Mr Leclercq took the vehicle to IAL on 15 August 2024 and he and its mechanic took the vehicle for a test drive. During the test drive, the IAL mechanic agreed it was still pulling to the left and that there was a vibration. The mechanic said that IAL had not done a wheel realignment.
• [16] Mr Leclercq then drove the vehicle to Autosave and asked for a refund.
• [17] Autosave declined to provide a refund and said it would have a wheel alignment performed.
• [18] Mr Leclercq then gave Autosave a further opportunity to perform the wheel alignment.
• [19] On 16 August 2024, Autosave called Mr Leclercq to tell him that the vehicle was still pulling to the left after Tony’s Tyres had performed a wheel alignment. It said that it would install two new tyres and that if after those repairs the vehicle was still pulling to the left, it would then reimburse Mr Leclercq.
• [20] Later that day, Mr Leclercq went to pick up his vehicle from Tony’s Tyres in Papatoetoe. He spoke to the mechanic there who said that the vehicle still pulled the left but that this was the best he could do.

Mr Leclercq rejects the vehicle

• [21] Mr Leclercq next contacted Autosave to ask for a reimbursement but Mr Geary told him that Autosave would not continue with any further repairs because of the cost and nor would it reimburse him. Mr Geary said: “that is on you”.
• [22] Mr Leclercq then rejected the vehicle in writing on 21 August 2024.

The AA motoring report

• [23] Mr Leclercq arranged for AA motoring to undertake a vehicle inspection on 3 September 2024. This report identified a number of alleged defects and, regarding the vehicle pulling to the left recorded: “performance: pulls to left, recommend wheel alignment check”.
• [24] In terms of the structure of the vehicle it noticed that the right-hand boot and the rear area boot floor were bent and damaged as a result of a poor prior repair. It noted that the door panel had uneven gaps. The inspector verbally told Mr Leclercq that the vehicle had been in a previous accident and had had a poor repair. He advised that the vehicle would not pass a WOF (warrant of fitness) in its current state.

The position of Autosave

• [25] Olya Ishina, an after sales consultant employed by Autosave gave evidence on its behalf. She submits that this was an older and cheaper vehicle with high mileage at the time of purchase. She submits that Mr Leclercq should be realistic about the need for ongoing maintenance and repairs on the quality of performance.
• [26] She says that Autosave has essentially replaced the entire right side of the suspension and considers that this has adequately addressed the problem. The work has included replacing shocks, the lower control arm, the complete hub assembly and the right Mag wheel as well as two new fitted and balanced tyres and performing a wheel alignment, at a cost of $1,132.75.

Further evidence obtained after the hearing

• [27] There was no diagnosis provided during the hearing as to what was causing the vehicle to pull to the left. Mr Haynes, the Tribunal’s Assessor, explained during the hearing that New Zealand roads do have a natural camber which means that vehicles will eventually pull to the left because that is the camber of the road.
• [28] Mr Leclercq said he was familiar with camber and that this is a different sort of pulling to the left.
• [29] Following the hearing, the Tribunal asked Mr Leclercq to obtain a report from a panel beater to check whether the chassis is straight.
• [30] Mr Leclercq took the vehicle to Mr Roskill Collision Centre. It reported the chassis to be within specification but Mr Leclercq said that the it questioned why the vehicle had passed a warrant of fitness (WOF) given “the number of issues there are with the car”.
• [31] Mt Roskill Collision Centre charged Mr Leclercq $474.80 for that work.
• [32] The Tribunal then requested Mr Leclercq to perform a Vehicle Transport New Zealand (VTNZ) check on the vehicle if he wished to maintain that the vehicle should not have passed a WOF.
• [33] In response to that request, Mr Leclercq provided a VTNZ report which recorded that the vehicle failed for “front lower suspension control arm bush worn left and right”. He incurred the cost of $86.70 for that inspection.

Issue 1: Was the vehicle of acceptable quality?

• [34] 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.
• [35] 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.

• [36] 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.

The burden of proof

• [37] Before I go on to consider what faults this vehicle has had, I begin by noting that the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
• [38] This is referred to as the “burden of proof”. Independent witnesses, and corroborating documents, reports and photographs can be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
• [39] Generally, the obligation of a supplier to remedy a fault with a motor vehicle is triggered once there is sufficient diagnostic or other information to prove the existence of a fault. Often, the cause of a fault will be readily obvious once a diagnostic assessment is undertaken by a suitably qualified mechanic. Sometimes, however, a vehicle might display symptoms of a fault but the precise cause of those symptoms is difficult to diagnose.
• [40] In cases such as this, the question is whether a purchaser has done enough to prove the existence of some sort of fault to trigger the obligation that a supplier has to repair. In those sorts of cases, mechanical evidence as to what may be wrong with the vehicle may not conclusively point to the reason for the fault but will nevertheless corroborate the existence of the symptoms that the vehicle is experiencing.

The vehicle pulling to the left

• [41] I am satisfied that the vehicle was pulling to the left. This is confirmed by the AA report and the video evidence that was provided.
• [42] The evidence has corroborated the existence of this fault but the difficulty is that it has not been established why the vehicle is pulling to the left.
• [43] Mr Haynes, the Tribunal’s Assessor, advises that one explanation for the vehicle pulling to the left could be a bent chassis, caused possibly by a prior accident. The panel beater’s report has however found the chassis to be within specification. So the vehicle pulling to the left is not because of a bent chassis.
• [44] This was a very old vehicle with high mileage at the time of sale. A reasonable consumer would generally understand that vehicles of this price, age and mileage will develop defects and require ongoing maintenance and repairs, potentially of an unexpected and expensive nature. They will have general wear and tear consistent with the age and mileage. A reasonable consumer would understand a supplier’s obligations under s 6 of the CGA are finite and, at some point, the risk of the vehicle developing defects must transfer from the supplier to the purchaser. The point in time at which that risk transfers is determined with reference to the factors in s 7(1)(f) to (j) of the CGA.
• [45] In this case however, the vehicle has suffered from this fault throughout. I accept Mr Leclercq’s evidence that he first noticed the fault when he took the vehicle for a test drive.
• [46] I am satisfied that the vehicle pulling to the left has meant the vehicle failed the guarantee of acceptable quality. Even though this was a lower-priced vehicle with higher milage at the time of purchase I consider that a reasonable consumer would not find this acceptable. The vehicle has not been as acceptable in appearance and finish or as free from minor defects as a reasonable consumer would find acceptable.

The worn front lower suspension control arm bushes

• [47] The vehicle has worn front lower suspension control arm bushes. Mr Haynes advises that this fault is not connected in any way to the veering to the left fault.
• [48] The question is whether this fault is a failure of the guarantee of acceptable quality?
• [49] These components are items that do wear out over time, however Mr Leclercq has done very little driving. He had driven less than 600 km by the time he filed his application.
• [50] Even though this was an older vehicle with higher mileage at the time of purchase I do not consider a reasonable consumer would find this fault acceptable. The fault has emerged too soon after Mr Leclercq’s purchase of the vehicle.
• [51] The worn front lower suspension control arm bushes has meant the vehicle fails the guarantee of acceptable quality.
• [52] The vehicle has not been as free from minor defects and as durable as a reasonable consumer would find acceptable.

Issue 2: Did Autosave fail to repair the fault within a reasonable time?

• [53] Mr Leclercq claims that he is entitled to reject the vehicle under s 18(2)(b)(ii) of the CGA because Autosave has failed to repair the drifting to the left fault within a reasonable time. He says that he has given Autosave a reasonable opportunity to repair the fault.
  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.

[54] Autosave has had opportunity to repair the fault that is causing the vehicle to pull to the left but I am satisfied it should be given a further opportunity to repair this fault.

• [55] The cause of some faults is not always immediately obvious. Mr Haynes advises that the repairs that have been attempted to date are the sort of reasonable repairs that would be undertaken to remedy this fault.
• [56] Hampering Autosave’s efforts of course has been the lack of any diagnosis as to what is causing this fault. There is still no diagnosis as to what is causing the fault.
• [57] I am satisfied that this is a case where the supplier should be given a further opportunity of repair.
• [58] In relation to the worn control arm bushes, Autosave has not yet had the opportunity of repair of these components. Pursuant to the CGA, it must first be given that opportunity.

Issue 3: What remedy is Mr Leclercq 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] I have found that the vehicle has the two faults that identified above. These must be repaired by Autosave, unless it is otherwise wiling to provide a refund at this point. .
• [61] Autosave must, within a reasonable time from the date of this decision remedy:

(a) The fault that is causing the vehicle to pull to the left.

(b) The worn front lower suspension control arm bushes.

• [62] Mr Leclercq is entitled to be compensated for “any loss or damage resulting from the failures which was reasonably foreseeable as liable to result from the failures”, pursuant to s 18(4) of the CGA.
• [63] Pursuant to that provision, I find that he is entitled to reimbursement of the VTNZ and Mt Roskill Collision Centre charges, totalling $561.50. This sum must be paid within 10 working days of the date of this decision.
• [64] Mr Leclercq claimed over $800 by way of reimbursement of all uber charges incurred from 18 July 2024 through to 16 August 2024. These charges appear to relate to the cost of taking an uber to and from work and other regular addresses.
• [65] I consider that after a reasonable period of time a reasonable consumer would take public transport or find some other cheaper method of transportation and so I am not prepared to reimburse the full amount sought. I consider reimbursement of $400 to be a reasonably foreseeable cost of uber charges resulting from the failures. This sum must be paid within 10 working days of the date of this decision.

DATED at AUCKLAND this 6^th day of December 2024

D Watson
Adjudicator