Jacqueline May Smith v East Coast Automotive Group Pty Ltd
[2014] NSWCATCD 100
•22 January 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Jacqueline May Smith v East Coast Automotive Group Pty Ltd [2014] NSWCATCD 100 Hearing dates: 29 November 2013 Decision date: 22 January 2014 Before: G Bassett, General Member Decision: On or before 16 February 2014 the respondent is to pay the applicant the sum of $1,401.45.
Catchwords: Repair, make good, defect, statutory warranty, Form 4 Legislation Cited: Consumer Claims Act 1998
Section 27 Motor Dealers Act 1974Category: Principal judgment Parties: Jacqueline May Smith (Applicant)
East Coast Automotive Group Pty Ltd (Respondent)Representation: Self represented (Applicant)
S Murphy (Respondent)
File Number(s): MV 13/40107
reasons for decision
APPLICATION
This was a Section 68 rehearing of MV 13/18857. Orders made the initial hearing were set aside on 25 July 2013. Rehearing was granted as the respondent had not appeared at the initial hearing.
The rehearing first came before me on 23 August 2013. The matter was adjourned for hearing.
JURISDICTION
The applicant purchased a 2005 Holden Barina from the respondent on 3 October 2012 under a Form 4 transaction.
The claim was a "consumer claim" as defined in section 3A (i) of the Consumer Claims Act 1998. The matter involves an amount less than $30,000.00 and the application was filed within the period of 3 years from the date of the cause of action (Section 7 of the Act). The Tribunal also has jurisdiction in respect of the obligation of a dealer to repair defects under Section 27 of the Motor Dealers Act 1974.
ISSUES
The issue is whether the respondent complied with its obligation to repair the vehicle under the statutory warranty.
APPLICANT'S EVIDENCE
The applicant gave oral evidence and relied on documents including:
(a) a letter dated 22 March 2013 to the respondent;
(b) invoice in the sum of $115.50 dated 7 March 2013 from the person who checked the alleged fault;
(c) invoice in the sum of $1,605.10 dated 28 March 2013 from third party installer of catalytic converter;
(d) report dated 14 March 2013 from third party repairer;
(e) invoice for new battery in the sum of $152.90;
(f) invoice in the sum of $60.00 dated 21 March 2103 for towing;
(g) contract of sale for vehicle.
She said she agreed to purchase the vehicle if the respondent carried out minor repairs including replacing the battery and cam shaft sensor. After she took possession of the vehicle, the battery had not been replaced and she purchased her own for $152.90.
About a week after purchase the check engine light came on. In November it came on again. The applicant took the vehicle to her own third party repairer rather than the respondent. That repairer indicated it was a "02" sensor error. In early December she returned the vehicle to the respondent. It had the vehicle checked by a third party auto electrician who reset the sensor codes. A week later the light came on again but the applicant kept driving the vehicle. The vehicle was returned to the third party repairer of the respondent on at least 3 occasions. The warranty period the vehicle expired on 3 January 2013 while it was at the third party repairer. The applicant said she had a conversation with the repairer who said the catalytic convertor had been improperly repaired. In February 2012 the respondent arranged to have a second hand catalytic converter installed. Despite this repair, the check engine light came on again. The vehicle was returned to the third party repairer once again. In March 2013 the vehicle also began running roughly, missing and eventually broke down. The vehicle was sent to the respondent and there were negotiations about who would be responsible for the repair but nothing was agreed.
The applicant eventually took the vehicle to another repairer to have a catalytic converter installed for $1,030.00 plus GST. She said the check engine light has not come back on during that time.
The applicant sought to be recompensed a total of $1,731.45 made up of:
(a) replacement battery $152.90;
(b) supply and installation of catalytic converter $1,463.05;
(c) first reset of 02 sensor $115.50.
RESPONDENT'S EVIDENCE
The respondents' representatives gave oral evidence.
They conceded the amount owing for failure to replace the battery.
The respondents paid the applicants own mechanic to carry out work to the vehicle prior to purchase. This included removing the timing cover and replacing it and work to the cam sensor and replacement battery.
When the vehicle was returned by the applicant the respondent arranged their own third party repairer to look at the problem. The catalytic converter was identified as the problem and replaced at the expense of the respondent.
The applicant then took the vehicle to a third party repair. Their quote of 14 March did not indicate the vehicle was running roughly. On, or about 21 March the vehicle was towed in running roughly. On 28 March 2013, outside the warranty period, the applicant instructed the third party repairer to replace the catalytic converter which had already been done by the respondent. The respondent did not authorise this work. That repairer found that the catalytic converter replacement did not fix the problem and proceeded to replace the alternator as well. There was no further problem from that point. The respondent submitted that the catalytic converter had been repaired by them under the warranty. The problem of the alternator was one that arose outside the warranty period and was repaired outside the period.
Further, the respondent said the vehicle had travelled 14,000 kilometres in 5 months. Any problem that arose was due to wear and tear caused by such extensive travel. The vehicle was 7 years old at the time of purchase and cost only $5,000.00 so the failure of an item such as the alternator in this time might reasonably be expected.
FACTS
The factual issue is whether the catalytic converter was the cause of the problem or the alternator. The problem with the converter did occur in the warranty period. That with the alternator did not.
The third party repairer invoice report dated 7 March 2013 indicated the check light was coming on and stated that the sensor was reconnected and tests showed the light was operating normally. The report of 14 March indicates the light was coming on again. It gave varying quotes for a genuine and after-market converter. The invoice noted the "engine not running rough". On 28 March 2013 the after-market converter was installed. The alternator was also replaced.
The works in March were completed well outside the warranty period.
APPLICATION OF RELEVANT LAW
Section 27 of the Act sets out a dealer's repair obligations in a sale of this type. The sections relevant to this matter are:
(1) Except as provided in this section and sections 28 and 29, where a motor vehicle of a description specified in Column 1 of Schedule 1 is sold by a dealer and before:
(a) the vehicle has been driven for the number of kilometres after being manufactured or so sold, as the case may be, specified opposite the description of the vehicle in Column 2 of Schedule 1, or
(b) the expiration of the period, specified opposite the description of the vehicle in Column 3 of Schedule 1, after the vehicle is so sold,
whichever first occurs, a defect appears or occurs in the vehicle, the dealer shall, whether or not the defect existed at the time of the sale, at the dealer's own expense, repair or make good, or cause to be repaired or made good the defect so as to place the vehicle in a reasonable condition having regard to its age and the dealer's obligation to do so shall be deemed to be a term of the contract of sale relating to the vehicle.
(1A) For the purposes of subsection (1), a defect which occurs in a vehicle includes a defect:
(a)which existed in the vehicle at any time before the occurrence of an event referred to in paragraph (a) or (b) of that subsection, and
(b)which first became apparent after the event occurred,
but only if the defect is reported to the dealer within a reasonable period after it becomes apparent.
.....
The Motor Dealers Act provides a statutory warranty of 3 months or 5,000 km from the date of sale (whichever occurs first) on second-hand vehicles, which includes demonstrator vehicles, that have travelled less than 160,000 km and are less than 10 years old (from the date the vehicle was built). The 3 month warranty period for the applicant's vehicle expired on 3 January 2013. All the March repairs were done outside the warranty period.
However, the applicant reported [my emphasis] the check light defect within 3 months. Thus the statutory warranty was not negated in relation to the duty to repair or make good. However, the dealer installed a second-hand catalytic converter. Through this action they may have discharged their duty but for the fact that the invoice of 14 March 2013 of the third party repairer, whose opinion is independent of the parties, states "ther [SIC] is a problem with the cat convertor". The invoice of 28 March also states "Further inspection found internal fault in cat convertor requires replacement". They set about replacing the one installed by the respondent. The respondent's repair had not made good the vehicle.
The problem with the vehicle running roughly and the alternator repair arose outside the warranty period and for these the respondent is not liable. But the fact remains that the applicant gave the dealer the chance in March to further repair the catalytic converter it had earlier installed and they refused to do so. Consequently, the applicant had to take the vehicle back to the third party repairer and incurred the loss of the work done in the invoice of 28 March. The applicant ought to be recompensed for that.
CONCLUSIONS
The respondent is to pay the applicant for the cost of the battery ($152.90), the installation of the after-market catalytic converter on 28 March plus GST ($1,133.05) and the invoice for the diagnostic report of 7 March 2013 ($115.50).
I do not allow the amount for towing as the breakdown due to the vehicle running rough may have been due to extensive use and the problems with the alternator.
COSTS
There were no exceptional circumstances in this matter justifying a costs order. No application was made for an order.
G Bassett
General Member
Civil and Administrative Tribunal of New South Wales
22 January 2014
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 04 September 2014
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