Barlow v Sunday Limited t/a Sunday Drive [2025] NZMVDT 12 (22 January 2025)

Last Updated: 21 February 2025

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 347/2024 [2025] NZMVDT 012 BETWEEN TRACEY BARLOW Applicant AND SUNDAY LIMITED, trading as SUNDAY DRIVE Respondent

HEARING at Auckland on 15 October 2024 and 17 January 2025 (by audio-visual link). Additional submissions and evidence provided to the Tribunal after the first hearing day. MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Gregory, Assessor

APPEARANCES

T Barlow, Applicant

T Campbell, for the Respondent

DATE OF DECISION 22 January 2025

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DECISION OF THE TRIBUNAL

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1. Sunday Ltd must repair the following faults within a reasonable time of the date of this decision:

i. the faulty air-conditioning unit,

ii. the dent on the door and the roof of the vehicle,

iii. the damaged rims on all wheels of the vehicle, and

iv. the loose front guards.^[1]

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REASONS

Introduction

• [1] Tracey Barlow purchased a 2009 Mitsubishi Lancer from Sunday Ltd, trading as Sunday Drive (Sunday) on 14 June 2023 for $41,975. The vehicle had then travelled 67,616 km.
• [2] She claims that the vehicle has suffered from some significant faults which have taken Sunday a very long time to repair. She now has the vehicle back but she claims consequential losses due to the length of time it has taken for the vehicle to be repaired. She also claims that the vehicle has been returned to her in a damaged condition and with further faults.
• [3] Sunday says that it has repaired the vehicle to the best of its ability. It claims that the delays were due to the difficulty obtaining parts for the vehicle. It denies that any damage has been sustained to the vehicle while it was in its possession for repair.

Evidence

• [4] I heard evidence from Mrs Barlow and, for Sunday, I heard evidence from Taylor Campbell, its Director.

The issues

• [5] 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) What remedy is Mrs Barlow entitled to under the CGA?

Relevant background

• [6] This is an unusual case whereby the vehicle has had substantial faults but the purchaser, Mrs Barlow, did not want to reject the vehicle. Instead she persisted with the remedy of repair.
• [7] By the time of the first hearing day on 15 October 2024, Mr Campbell said that the vehicle had been repaired although it had not yet been returned to Mrs Barlow.
• [8] During the first day of hearing, agreement was reached for the vehicle to be returned to Mrs Barlow.
• [9] After getting the vehicle back, Mrs Barlow advised the Tribunal that the original faults were remedied but that she now claims that the vehicle was damaged whilst Sunday was repairing it. She also claims that there are new issues. She claims damages for all of the delays in repairing the vehicle and various other consequential losses.
• [10] The purpose of the second day of hearing was for her to present submissions and evidence in connection with her claim for damages and for the further faults that she alleges.

Mrs Barlow’s claim for damages

• [11] Mrs Barlow says that for approximately 46 weeks of her ownership of the vehicle, it was with Sunday for repairs. During that time she did not have use of the vehicle. She claims:

(a) all interest payments she has made on the borrowing for the vehicle for 46 weeks,

(b) all insurance payments she has made on the vehicle for 46 weeks,

(c) the cost of a repossession agent, Simon Humphreys, of $400 plus GST. She engaged Mr Humphreys, to attempt to collect the vehicle when it was at a repair workshop in Auckland. The invoice itself has not been paid as at the first day of hearing and it was not clear as to whether it would be paid.

• [12] Mrs Barlow claims that dealing with all of the issues to do with this vehicle caused her significant distress and hardship. She claims compensation of $20,000.
• [13] Mrs Barlow claims that her existing medical conditions were exacerbated as a result of all of the personal stress involved in dealing with this vehicle. She claims her medical expenses of $129.99 for a blood pressure machine, $325 for doctors’ appointments and $90 for ambulance charges. Mrs Barlow gave evidence about her medical conditions. She has a heart related condition which she has had for a number of years as well as high blood pressure issues.
• [14] Mrs Barlow claims that the vehicle has been returned to her in a poor external condition and she provided a quote for $5,566.58 for remedial panel beating repairs. These costs have not yet been incurred because she has not undertaken this work.
• [15] Mrs Barlow also claimed mechanic’s charges of $1,114 for work to install an exhaust manifold heat shield and plastic/panels that were missing.
• [16] She claims that there is still a fault with the air-conditioning not working and submitted a quote for a diagnostic charge of $129.67 from Autotech.

The position of Sunday

• [17] Sunday accepts responsibility for the initial faults that the vehicle suffered and that it had repaired.
• [18] Although it accepts that there were delays with the repairs, it says that this is because this is a rare performance vehicle and the parts are very hard to come by.
• [19] Mr Campbell gave evidence that the repairs that have been undertaken are as follows:

(a) the transmission has been fully rebuilt by Kaspa Transmissions, a reputable transmission specialist. Initially there was a fault with the fifth gear which was repaired but then further work was done on the transmission leading to the full rebuild of the transmission.

(b) Two engines have been replaced in the vehicle. The first engine failed not long after it was installed by Sunday, necessitating installation of a second engine, leading to further delays.

• [20] Mr Campbell very openly described the vehicle as a “nightmare” to fix, given the difficulty obtaining parts and the extent of the repairs, which have come at considerable cost to Sunday.
• [21] Mr Campbell said that Sunday did offer Mrs Barlow the option of a refund but that this was declined by Mrs Barlow. I note that in reply, Mrs Barlow denied ever having been offered a full refund. Mr Campbell did however also make the offer for a refund on the first hearing day. Mrs Barlow explained during the hearing how much she loves the vehicle, and so it was hard to imagine her ever agreeing to a refund in any event.
• [22] Mr Campbell said that having to deal with this matter has also been very stressful for his business and staff. He remains concerned that with this being an older high-performance vehicle, there may be further issues.
• [23] Sunday denies causing any damage to the vehicle while it was in its possession and says that the photographs that it has produced, taken before the vehicle was returned to her. show it to be in very good external condition at that time.
• [24] It says that the vehicle was sent to Mrs Barlow in an enclosed transporter to guarantee that no damage would be sustained in transit.
• [25] Mr Campbell says that the panel beater’s quote is excessive. Regarding the dent in the door, he estimates this would cost only $100 to repair.

Burden of proof

• [26] Before I go on to consider what faults this vehicle has had and whether any remedy should be ordered, 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.
• [27] This is referred to as the “burden of proof”. Independent witnesses, 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.
• [28] As noted in Kaipo v Clarke & McCarthy, in practical terms this means that:^[2]

...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

• [29] I note that in this case, Mrs Barlow and Sunday were given ample opportunity to put forward all evidence they relied on before the Tribunal. The Tribunal made timetable orders for that evidence to be supplied and even set down a second hearing for submissions to be made.

Issue 1: Was the vehicle of acceptable quality?

• [30] 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.
• [31] 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.

• [32] 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.
• [33] Mr Gregory, the Tribunal’s Assessor, advises that this is indeed a rare, high performance vehicle. He advises that this sort of vehicle is frequently used in motor sport, is generally speaking not comfortable to drive and nor is it suitable as a drive around town vehicle. He also advises that the vehicle is likely to appreciate significantly in value over the forthcoming years, as much as approximately $5,000 per annum.
• [34] Unfortunately, the flipside of this vehicle escalating in value is that parts are expensive and very hard to find. Mr Gregory advises that because these vehicles have often been modified in the past, it is not unusual for their engines to suffer significant failures, such as has happened here.

Initial faults

• [35] Mr Gregory advises that the vehicle has had a faulty transmission and defective engine not long after purchase. These faults have necessitated a full rebuild of the transmission and two engine replacements.
• [36] Although this is an older rare high performance vehicle and therefore potentially will be more prone to premature engine and other component failure, I consider that the faults that the vehicle has had have arisen too soon in Mrs Barlow’s ownership of the vehicle.
• [37] A reasonable purchaser of this vehicle would not find these faults acceptable. These faults have meant the vehicle failed the guarantee of acceptable quality. Mrs Barlow would have been entitled to immediate rejection, given the nature of the faults, but she did not want that remedy.

Subsequent faults

• [38] I am satisfied that the air-conditioning is working only intermittently, that the exhaust manifold heat shield and engine undertray are missing and that a rear inner guard liner is insecure.
• [39] Mr Gregory advises that it would not be unusual for the manifold heat shield and panels to be missing on a vehicle of this sort. They become damaged over time and are frequently removed during repairs or come off. The photographs indicate to him that these may have disappeared some time ago. There is no evidence that these were present at the time of sale.
• [40] I consider that the faulty air-conditioning which works only intermittently is a failure of the guarantee of acceptable quality. I consider that a reasonable purchaser of this vehicle would not find that fault unacceptable, given the age, price and mileage of the vehicle. I deal with the question of remedy below.
• [41] With regard to the heat shield and under tray I do not accept that these items being missing amount to a failure of the guarantee of acceptable quality. I accept the advice of Mr Gregory that is it not uncommon for these items to be missing in a vehicle of this sort, at this age. I have no evidence that they were removed by Sunday after the vehicle was sold to Mrs Barlow.

Allegedly faulty repairs

• [42] Mrs Barlow submits that the vehicle has sustained damage during the course of the repairs that were undertaken by Sunday.
• [43] Pursuant to s 28 of the CGA, a supplier provides a guarantee as to reasonable care and skill where services are supplied. That guarantee applies to the repair services that were undertaken by Sunday.
• [44] Part of the difficulty of this aspect of the claim, as explained to Mrs Barlow during the hearing, was a lack of any corroborating evidence regarding the condition of the vehicle at the time it was initially supplied to her or even at the time she initially sent it back to Sunday for repairs. The photographs that were produced at the time the vehicle was initially supplied to her are not clear or detailed and there are not many of them.
• [45] By contrast, her most recent photographs are very granular and show a high level of detail. It was hard for the Tribunal to ascertain what damage may have occurred whilst the vehicle was in the possession of Sunday for repairs, given the lack of any “like for like” photographic comparison.
• [46] That said, I accept her oral evidence that there is a fresh dent now on the side of the vehicle as well as a dent on the roof and that these must have been caused when the vehicle was in the possession and control of Sunday. These defects are cosmetically obvious and would have been noticed by Mrs Barlow when the vehicle was initially delivered. I accept that there has been rim damage to all four wheels of the vehicle during this time as well. I accept that the front guards are loose and need to be correctly fitted.
• [47] In regard to all of the rest of the damage that she has alleged, I do not specifically detail all of it, but I consider that there is inadequate evidence corroborating that this damage has occurred while the vehicle was in Sunday’s possession.
• [48] I therefore find that Sunday has breached the guarantee and s 28 of the CGA in causing the damage that I have just described. I consider that a reasonable consumer would not find this damage acceptable.
• [49] I deal with the question of remedy below.

Issue 2: What remedy is Mrs Barlow entitled to under the CGA?

• [50] Without a doubt, Sunday took an excessive amount of time to repair this vehicle. Had Mrs Barlow sought rejection, she would have been entitled to rejection on that basis.
• [51] But Mrs Barlow made it clear that she did not want to reject the vehicle. Instead, she wanted Sunday to remedy the failure. Sunday has indeed now repaired the vehicle.
• [52] Mrs Barlow wants an order for Sunday to pay for losses that are claimed above.
• [53] Section 18(4) of the CGA provides:

(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] I now deal with each claim in turn.

The claim for reimbursement of interest and insurance payments

• [55] These are payments that Mrs Barlow would have had paid in any event. They are not damages that are reasonably foreseeable as liable to result from the failures I have identified above. They are therefore not recoverable.

The claim for reimbursement of the debt recovery cost

• [56] I had difficulty understanding why this cost was necessary. I find that it was neither reasonably foreseeable nor liable to result from the failures. This sum is not recoverable.

The claim for medical costs and stress caused in dealing with this matter.

• [57] Claims involving defective motor vehicles can be inherently stressful and time‑consuming. The Tribunal lacks jurisdiction to award general damages reflecting stress, inconvenience, or similar.
• [58] But the Tribunal instead has jurisdiction to award damages for reasonably foreseeable loss, arising from the vehicle’s failure under s 18(4) of the CGA.
• [59] Because of the limits to the Tribunal’s jurisdiction to award damages reflecting reasonably foreseeable losses arising from the vehicle’s failure, compensatory damages for stress and inconvenience are reserved for exceptional cases. The circumstances of the present case are similar to many cases that do come before the Tribunal where a consumer will spend time, effort and emotional energy attempting to resolve the issues they have with the vehicle and in dealing with the inconvenience caused.
• [60] I am not satisfied that this is an exceptional case justifying an award of damages.
• [61] In relation to the claim for reimbursement of the medical costs, I am not satisfied that these were reasonably foreseeable and do not allow them. I note that clearly Mrs Barlow had a pre-existing condition of a number of years’ duration. She may well have mentioned a heart condition to the Sunday salesperson at the time of sale but that is not enough to make these sorts of losses reasonably foreseeable.
• [62] I decline any claim for reimbursement of the medical related costs and for any compensation for stress in dealing with this matter.

Damage to the vehicle that has occurred while the vehicle was with Sunday

• [63] Mrs Barlow is entitled to a remedy for the damage to the vehicle which was sustained while the vehicle was with Sunday and for the faulty air-conditioning.
• [64] The remedy she is entitled to is the remedy of repair. Sunday is entitled to have the opportunity of repair of these items.

• [65] I find that Sunday must repair the damage that I have identified within a reasonable time of the date of this decision as ordered above.

DATED at AUCKLAND this 22^nd day of January 2025

D Watson
Adjudicator

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^[1] An earlier decision in this matter was issued this morning was recalled because it incorrectly recorded the loose rear guards were to be repaired, not the loose front guards. The decision was recalled and is now reissued.

^[2] Kaipo v Clarke & McCarthy DC Waitakere 233/02, 12 April 2002, at [7].