Joden Finance Ltd v Prerssilp [2020] NZDC 12239

Published 21 July 2021

Appeal from tribunal — Motor Vehicle Disputes Tribunal — right to reject — damage after purchase — acceptable quality guarantee — substantial character — fair wear and tear — meaning of "damage" — statutory interpretation — Consumer Guarantees Act 1993, s 20(1)(c) — Motor Vehicle Sales Act 2003, sch 1 cl 16 — District Court Rules 2014, r 18.19 — Austin, Nicholls & Co Inc v Stitching Lodestar [2008] 2 NZLR 141 — Mitchell v Tradin Post Ltd [2019] NZMVDT 293 — Pou v Harvey [2019] NZMVDT 246 — Wright v Fortis Panmure Ltd [2018] NZMVDT 159 — Singh v Spot One Limited [2018] NZMVDT 288 — Featonby v Advantage Cars Limited [2018] NZMVDT 248. This was an appeal by a finance company against a decision of the Motor Vehicle Disputes Tribunal (MVDT) finding that the respondent had not lost his right to reject the car he purchased under s 20(1)(c) of the Consumer Guarantees Act because of damage to the car subsequent to purchase. The car at the time of purchase had failings to the airbag system, warning light system, and cooling system which were of a substantial character, giving rise to the respondent's right to reject them because of the guarantee under s 6 as to "acceptable quality". Counsel for the appellant argued that the subsequent damage was more than fair wear and tear and therefore the right to reject the goods had been lost. Counsel cited various MVDT decisions where the right to reject the goods had been lost, having found the damage constituted more than fair wear and tear. The Judge considered the meaning of "damage" in s 20(1)(c) must be more than the slightest bit of damage, such as damage to paintwork. In this case there was damage to a front tyre and minor scrape to the wheel. This was able to be speedily and economically repaired. The Judge therefore found that this was no more than fair wear and tear and did not constitute "damage" to the vehicle for the purposes of s 20(1)(c). Each case must be looked at on its own facts to determine whether something is no more than fair wear and tear in the circumstances, therefore the MVDT decisions cited were not inconsistent. The Judge upheld the MVDT decision and dismissed the appeal. Costs were reserved. Judgment Date: 30 June 2020.

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