Hanna v General Motors Australia and New Zealand Pty Ltd ACN 006 893 232 & Anor (Civil Dispute)

[2021] ACAT 80

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HANNA v GENERAL MOTORS AUSTRALIA AND NEW ZEALAND PTY LTD ACN 006 893 232 & ANOR (Civil Dispute) [2021] ACAT 80

XD 114/2021

Catchwords:               CIVIL DISPUTE – whether faulty diesel particulate filter falls under manufacturer’s warranty – where faulty repairs caused further expenses on the customer 

Tribunal:  Senior Member Prof. T Foley

Date of Orders:  26 August 2021

Date of Reasons for Decision:         26 August 2021

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 114/2021

BETWEEN:

WAGDY HANNA

Applicant

AND:

GENERAL MOTORS AUSTRALIA AND NEW ZEALAND PTY LTD ACN 006 893 232

First Respondent

AND:

MCGRATH CANBERRA PTY LTD ACN 093 024 107

Second Respondent

TRIBUNAL:Senior Member Prof. T Foley

DATE:26 August 2021

ORDER

The Tribunal orders that:

1. The respondents jointly cover the full cost of the supply and fitting of a GM replacement DPF to the applicant’s vehicle. The cost is apportioned between them as to 80% to the first respondent and 20% to the second respondent. The work is to be done at a time suitable to the applicant without cost to him and is to be completed within 28 days of these orders.

2. The respondents pay to the applicant in equal shares the sum of $180.50 in reimbursement of filing and search fees within 28 days of these orders.

   ………………………………..

   Senior Member Prof. T Foley
   

REASONS FOR DECISION

1. This matter was listed for hearing on 26 July 2021 before the Tribunal. The applicant appeared on his own behalf and the respondents by Mr Jeremy Kinnear (first respondent) and Mr Peter Ando (second respondent) under authority, all by telephone. The matter was not resolved by settlement and the decision was reserved. The following is a statement of reasons for the Tribunal’s decision.

2. A preliminary issue was whether the matter had been listed for settlement conference or hearing. A review of the file confirmed the matter was listed for ‘conference’ on 10 May 2021 before Member Selby where it was not resolved. By order made that day it was listed for ‘hearing’ on 26 July 2021. I am satisfied the matter was properly listed for hearing and proceeded on that basis. 

3. On 26 October 2012 the applicant purchased a 2012 Holden Captiva Diesel 2.2 litre motor vehicle through the dealer Gerald Slaven Holden. The first respondent provided a manufacturer’s warranty of 3 years/100,000km. An extension of the warranty to 5 years/175,000km was also provided, apparently by the dealer.

4. At the time of first service of the vehicle on 24 January 2013 the applicant raised a warranty issue which is recorded on the service tax invoice of Gerald Slaven as “please check as a persistant [sic] flashing light that comes on the dash board with bell rings every now and then[,] it is erratic but persistant [sic]”[1]. The applicant’s evidence was that he had noticed the flashing light and bell rings from soon after purchase. He checked the owner’s guide which came with the vehicle and this identified it as ‘fault code P2195’ relating to the Diesel Particulate Filter (DPF). This fault code is also noted on the service tax invoice. The fault code records from the time of service are noted as ‘cleared’ and the applicant had no access to these records. The invoice notes “DPF light flashing refer dealer”.

   [1] Applicant’s bundle of documents dated 10 May 2021

5. On 17 December 2013 a 15,000km service was conducted by Gerald Slaven. The applicant’s evidence is that at the time of service he advised the dealer that “the engine revs extremely high after it is switched off”. He says this is as a result of a non-functioning faulty PDF. This was investigated and recorded as “Job 3 Pl Ch engine racing when car tunrs [sic] off”. The fault could not be duplicated, and the service record notes “no codes found related”.[2]

   [2] Exhibit A1

6. Further service records show the vehicle was serviced again by Gerald Slaven on 26 February 2014 (recall), 22 October 2014 and 28 March 2015. No reference is made to a DPF problem, but the applicant says it remained and was never fixed despite repeated complaints.

7. The applicant says that by November 2019 he had changed to the second respondent as service dealer. On the 20 November 2019 diagnostic testing by the second respondent confirmed the DPF problem. The applicant was advised the cost of a replacement filter at $2,845 plus labour. The applicant sought a cheaper option and was quoted for the refurbishment of the existing filter at $1,500. Both options were quoted at his cost and he chose the cheaper refurbishment option. The vehicle was booked in on 27 November 2019 for the refurbishment to be carried with the service record noting the job was completed by an exhaust specialist.

8. The applicant’s evidence is that on driving the vehicle in early 2019 he now noticed a strong exhaust fume leak in the vehicle. The vehicle was serviced again by the second respondent on 11 February 2020 and the service record notes the job as “check for exhaust smell in cabin[,] DPF light staying on”. The applicant’s evidence was that this work did not resolve the problem. He then took the vehicle for service and diagnostic testing to NRMA on 27 May 2020 which noted “[exhaust leak at turbo housing – cause of exhaust smell]” and “DPF [light flashing refer dealer]”. He paid $398 for this work but it appears to relate primarily to the vehicle’s service. On 18 January 2021 the vehicle was returned to the second respondent to address the exhaust leak. The service record notes as the job “bad exhaust smell in cabin” and records “exhaust leak evident at dpf to turbo[,] requires new dpf assembly to repair”. The service tax invoice notes “new dpf assembly – s&F $3,600”. The applicant’s evidence was that a request by the second respondent for the first respondent to supply a replacement DPF without cost to him was rejected.

9. On 15 March 2021 the applicant took the vehicle to Tyre Plus Woden to address the exhaust leak. The tax invoice from Tyre Plus noted “DPF installed incorrectly, broken V band [,] adjusted DPF [,] replaced V band”. The applicant paid $310.50 for these repairs. The applicant says the exhaust leak issue is now resolved but the DPF warning light problem remains. It is noteworthy that the applicant has been a GM customer since 1998 and has three Holden Captivas of various models in his family.

10. The applicant seeks:

    (a)$5,000 for “repairs and refund”, as far as this can be particularised it includes:

    (i)      cost of replacement DPF $3,500 as quoted; and

    (ii)     Tyre Plus account $310.50 paid; additional invoices for $97.50 (11 February 2020) and $100 (18 January 2021), totalling $508.

    (b)$180.50 filing and search fees being:

    (i)      ACAT filing fee $162.50; and

    (ii)     ASIC company search fees $18.

    (c)$9,800 for “[i]nconvenience, pain, suffering and damage to health”.

11. It was made clear to the applicant at hearing this was a civil dispute based in contract and not in tort. As such there is no entitlement for damages for pain and suffering and the claim for $9,800 for that head of damage is rejected.

12. The first respondent’s evidence was that on purchase it provided a manufacturer’s warranty of 3 years/100,000 km. This expired on 26 October 2015. It did not provide any extended warranty and if this was provided it was supplied by the dealer at time of purchase independent from General Motors (GM). Mr Kinnear on behalf of the first respondent contended its responsibility under its warranty was for manufacturing issues not for issues arising from maintenance, wear and tear.

13. The first respondent says it had been provided with no evidence of the DPF problem whilst the vehicle was under warranty. The DPF is designed to remove soot accumulation from the exhaust system of a diesel engine. It is a self-cleaning filter which requires regular maintenance including specifically required driving conditions. The first respondent says the DPF would have a reasonable life expectancy of seven or eight years. The flashing light which the applicant reported at the first service can be indicative of an array of reasons. The first respondent’s evidence was that it is “a DPF light but that doesn’t mean it is a problem with the DPF”. It can be indicative of other things including some actual faults, other causes such as poor fuel, incorrect gear selection or improper driving style. Similarly, the first respondent contends that the reference in the service tax invoice on the second service on 17 December 2013 to “engine racing when car turns off” does not point to a DPF problem. Mr Kinnear noted that though there was a request on the service record to the effect “[i]f problem still there will need to re-book for more diagnostic time” no further booking was made.

14. The first respondent further contends that the applicant’s decision in November 2019 to effect the repair of the DPF using non-genuine GM parts and non-GM approved procedures and any issues that arose from that work were not its responsibility as manufacturer. Any manufacturer’s warranty had long expired (by October 2015) and the use of non-genuine parts and procedures would nonetheless not be covered by warranty and the manufacturer cannot be held responsible for repairs which are not effective. Additionally, at this age (approximately seven years) the DPF is coming to the end of its use life and any problem is with its maintenance not its manufacture.

15. The second respondent’s evidence was that it had no involvement with the applicant’s vehicle prior to November 2019, six years after purchase. Testing by its workshop at that time confirmed a DPF problem. Its quote to replace the filter at a cost to the applicant of $2,845 plus labour (a total cost of approximately $3,500) was declined. The applicant chose the cheaper option offered of cleaning and refitting the existing DPF at a cost of $1,500. As was usual industry practice the refurbishing job was sublet to an exhaust specialist. The work was completed but when the DPF assembly was re-assembled and tested a faulty re-weld was identified. This was corrected by the specialist and the vehicle then returned to the applicant.

16. The second respondent’s evidence confirmed the applicant first advised it of an exhaust fume smell in February 2020. It says it has no records of the vehicle being returned for inspection of this fault at that time. However, it accepts that its service tax invoice dated 11 February 2020 for $97.50 provided in evidence by the applicant notes the required job as “check for exhaust smell in cabin[,] dpf light staying on”. It says it was not until January 2021 that the exhaust fume leak was again reported to it. Its service tax invoice dated 18 January 2021 for $100 notes the required job as “bad exhaust smell in cabin” and records the vehicle was inspected and “exhaust leak evident at dpf to turbo”. The second respondent contends that this was because the DPF had reached its end use, being then almost nine years old, and required replacement. A request to the first respondent to supply a replacement DPF under warranty was refused.

17. The Tribunal must decide the question of liability and its apportionment on the civil standard, namely on the balance of probabilities. This is a relatively low legal standard that an event or a fact is more likely than not to have occurred or to be true. Notwithstanding this, the applicant bears the onus of proving his case.

18. On the evidence before it the Tribunal is satisfied to the requisite standard with respect to two issues and find as follows:

    (a)the DPF problem was present in the vehicle from, or soon after, the time of purchase; and

    (b)the repair work of cleaning and refitting the DPF carried out in November 2019 was faulty.

19. With respect to apportionment of liability between the respondents for these issues the Tribunal further finds:

    (a)the DPF problem is covered by the first respondent’s manufacturer’s warranty of 3 years/100,000km having first presented during its currency; and

    (b)the applicant was put to additional expense he should not have incurred because of the second respondent’s faulty repairs.

20. It was agreed in the attempts to settle this matter at hearing that the solution to the DPF problem was the supply and fit of a replacement DPF. The question of how and who should bear the cost of that solution could not be agreed. The first respondent has the means to supply the replacement at a likely cost in the order of $2,845. The second respondent bears no responsibility for the initial DPF problem. However, it bears responsibility for the faulty repairs and has the workshop facilities to fit the replacement DPF at a likely cost in the order of $655.

21. The Tribunal orders:

    (a)The respondents jointly cover the full cost of the supply and fitting of a GM replacement DPF to the applicant’s vehicle. The cost is apportioned between them as to 80% to the first respondent and 20% to the second respondent. The work is to be done at a time suitable to the applicant without cost to him and is to be completed within 28 days of these orders.

    (b)The respondents pay to the applicant in equal shares the sum of $180.50 in reimbursement of filing and search fees within 28 days of these orders.

    ………………………………..

    Senior Member Prof. T Foley

Date(s) of hearing	26 July 2021
Applicant:	In person
First Respondent:	Mr J Kinnear, authorised representative
Second Respondent:	Mr P Ando, authorised representative