Yzendoorn v Vehicle Logistics Ltd T/A Takanini SSangyong
In August 2017, the purchaser paid $30,838 for a new LDV G10 from the franchise dealer.
He claimed the van had issues with its AM radio and transmission and that LDV’s website had misrepresented the performance of the vehicle.
The adjudicator accepted there was a fault with the AM radio, which was crackly, and that it breached the acceptable breach of quality for a new vehicle.
However, the trader had found the fault and performed repairs.
The purchaser also claimed the transmission had a significant fault. He said he intermittently had difficulty changing from first to second gear and second to third gear and that the gearbox made a crunching sound when the gear was engaged.
The fault also occurred when changing down gears. When changing from third to second gear and second gear to first, the gearbox intermittently “locked out”, which occurred when the vehicle’s gearbox failed to select the gear the driver was attempting to select.
The purchaser had the vehicle assessed by the trader and another franchise dealer on behalf of the trader. The adjudicator noted the purchaser’s belief that his concerns were not being taken particularly seriously.
He also had the vehicle assessed by an independent transmission specialist. The purchaser says the specialist noted the rough feel of the gearbox when changing gears but did not experience the “locking out” claimed.
The purchaser rejected the vehicle and returned it to the trader. He claimed he was then advised by the trader’s service manager that a broken shift pin in the vehicle’s transmission had been found and that this was evidence of a fault with the vehicle’s gearbox.
The trader denied the vehicle had a broken shift pin. Rather, it replaced the shift pin as a precautionary measure because a similar vehicle had previously had a gearbox fault caused by a broken shift pin.
It provided a letter signed by the service manager as evidence that he did not tell the purchaser the vehicle had a broken shift pin. The adjudicator put the letter aside because the writer did not attend the hearing and could not be questioned.
The trader also provided a copy of internal repair records which showed a technician inspected the shift pin and found that it “locks okay”.
The technician then noted the shift pin was “removed and replaced as told”. The technician considered the “gearbox feels normal” although he did note it “will be a bit notchy for the run-in period”.
Based on that, the tribunal found the trader did not find a fault with the gearbox and that it replaced the shift pin as a precaution rather than because it was broken.
From this, it found the purchaser had not proved a fault with the transmission. It noted all parties involved had acknowledged the transmission was “notchy”, in that the driver experienced some resistance when changing gears.
“I am not satisfied that the notchy gearbox is a fault that breaches the acceptable quality guarantee.
“Although the gearbox in this vehicle is not as smooth as (the purchaser) may want, it appears that the gearbox operates as it was designed to operate and that the performance of this gearbox is in line with the gearbox performance of other LDV G10 vans.
“I consider that a reasonable consumer would not expect this vehicle’s gearbox to perform as smoothly as a more expensive new vehicle with higher specifications.”
The tribunal’s assessor also noted the gearbox was likely to loosen up as it wore – the tight tolerances of the manufactured components in the gearbox would reduce, making gear selection easier.
The tribunal also considered the purchaser’s claim that the trader misled under the Fair Trading Act with the following claim on the LDV website: “Nothing in its class comes close to matching the G10 for value and performance”.
He claimed the statement was misleading because it overstated the performance of the vehicle, particularly because of the notchy gearbox, which appeared to be common in LDV G10 vans.
The adjudicator noted the representation was made on the LDV website, not the trader’s, and if a claim were to be made, it would need to be against the distributor.
All claims were dismissed.
