Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Crooks v Hyundai Motor Company Australia Pty Ltd [2023] NSWCATCD 29 Hearing dates: 23 January 2023 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) The application is dismissed. Catchwords: CONSUMER LAW---Consumer guarantees under Australian Consumer Law 2010 (NSW)---Motor vehicle---Acceptable quality---Whether breach of consumer guarantee established. Legislation Cited: Australian Consumer Law 2010 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Hutchinson v Central Coast Automotive Pty Ltd [2022] NSWCATCD 123 LSH Auto (Sydney) Pty Ltd v Sherman [2020] NSWCATAP 246 Safi v Heartland Motors Pty Ltd t/as Heartland Chrysler [2016] NSWCATAP 80 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Texts Cited: None cited Category: Principal judgment Parties: Amon Crooks (Applicant) Hyundai Motor Company Australia Pty Ltd (First Respondent) PPT Investments Pty Ltd t/as Kloster Hyundai (Second Respondent) Representation: A. Crooks, self-represented (Applicant) D. Galvin, manager (First Respondent) D. Chambeyrom, manager (Second Respondent) File Number(s): MV 22/43504 Publication restriction: Nil

REASONS FOR DECISION 1. This dispute involves a Hyundai I30 motor vehicle which was purchased as a new vehicle by the applicant on 13 March 2018. The vehicle has a manual transmission. 2. The applicant purchased the vehicle from the second respondent, who is a licensed motor dealer located in Newcastle, NSW. The first respondent is the manufacturer of the vehicle. 3. Although the applicant now resides interstate, the vehicle was supplied in NSW (s 79K (1) (a) of the Fair Trading Act 1987 (NSW) 'the FTA'). 4. For the purpose of the Australian Consumer Law 2010 (NSW) ('the ACL') the first respondent is the manufacturer; and the second respondent is the supplier of goods. 5. The vehicle was a demonstrator. The purchase price was $25,500. 6. The manufacturer's warranty expired on 28 September 2022. 7. Primarily, the applicant alleges that the vehicle was not of acceptable quality in breach of the consumer guarantee under s 54 of ACL, and seeks the following remedies: 1. Return of the vehicle and a full refund of the purchase price. 2. Reimbursement of a charge by a motor dealer located in Queensland for servicing the vehicle ($496); 3. Reimbursement of the cost of a rental car ($1,100). 1. Although the applicant purchased the vehicle in Newcastle NSW he has been living in Queensland for a considerable period of time, and the second respondent has not serviced the vehicle since it was sold. 2. The applicant alleges that the vehicle was trouble free for the first 1.5 years since purchase. However, since about September 2019 the vehicle has allegedly had a consistent intermittent fault with the engine, which has not been able to be diagnosed or resolved by the Hyundai dealer in Queensland (Norris Motor Group t/as Northside Hyundai) despite repeated attempts to do so. 3. The applicant asserts that the vehicle idles roughly with engine revs fluctuating when the vehicle has started; and the engine waring light comes on and flashes. The engine light, on at least one occasion, has gone on completely, causing the vehicle to be towed to Norris Motor Group. This issue is resolved on some occasions when the engine is turned off and the vehicle re-started. The applicant also asserts that the vehicle at low speeds or when idling runs "roughly" and "misfires." The applicant asserts that on occasions engine has cut out while the vehicle is being operated whilst at an intersection. In September 2022 it was towed back to Norris Motor Group. On 3 occasions a "data trigger" has been installed to attempt to locate the fault, without success. 4. The documentary evidence filed and served in the proceedings by the applicant (and which was admitted into evidence subject to weight and relevance) included service records of the vehicle at Norris Motor Group. The documentary evidence of the first respondent that had been filed and served in the proceedings (and which was admitted into evidence subject to weight and relevance) also contained a copy of service records and complaints to the first respondent about the vehicle. 5. The only mechanics who have inspected the vehicle are those from Norris Motor Group. The applicant has not had the vehicle inspected by any other mechanic, nor has the applicant obtained a report from an automotive engineer. In substance, the applicant relies on his oral evidence and the history of unsuccessful attempts to resolve the purported fault by Norris Motor Group. 6. The applicant also provided two USB keys with various short videos of the dashboard of the vehicle when it is started up to support the applicant's version of events. The respondents did not oppose the USB key being tendered as evidence, nor the Tribunal considering it even though it could not be played at the hearing in circumstances where the hearing was conducted remotely. 7. On 5 July 2019, the vehicle was serviced pursuant to its 24 month/20,000 klms warranty service. No issues were reported about the vehicle. 8. On 1 April 2020, the vehicle was serviced pursuant to its 48 month/40,000 klms warranty service. The vehicle had travelled 41,787 klms. A "miscellaneous issue" is identified in the service records. The record states: Tech has carried out roadside on vehicle-checked for any codes-unable to fault or reproduce customer issue. Possibly recommend try 95 octane fuel if customer doesn't use already. 1. On 19 March 2021, the vehicle was serviced pursuant to its 60 month/50,000 klms warranty service. The vehicle had travelled 53,967 klms. The service record does not indicate in writing any unusual issue with the vehicle, or complaint about the vehicle. However, the service record states the fuel injectors of the vehicle were cleaned. 2. On 12 November 2021, the vehicle was serviced. The vehicle had travelled 63,141 klms. The service record states as follows: Engine Light on and Car Shudders Confirmed engine misfire form the No 1 cylinder. Found several fault codes in the ECU for cylinder misfires. Erased the codes, swapped ignition coils and spark plugs. Engine misfire still on cylinder No 1 and No 4. Removed and replaced injectors and swapped injectors around. Cleaned up the carbon on the intake valves, injector holes and tips. Erased fault codes and did not come back. Reset adaptive values on the engine. Test drove and unable to replicate the fault. Car is running much smoother than before in general. 1. On 21 June 2022, the vehicle was serviced by Norris Motor Group. The vehicle had travelled 71,352 klms. The service record states as follows: Car Shudders and Stalls Checked DTC, found B128213 as active. No ECU upgrade found. Monitored current data emission firing on all 4 cylinders, occurring intermittently at idle. Removed spark plugs, all OK. Found carbon build up on the injector tips and intake valves. Removed intake manifold. Cleaned intake and injectors. Carried out three part fuel treatment and upper cylinder clean. Foreman took vehicle for extended test drive. Vehicle all OK. Complete Petrol Fuel System Service Carried out complete Petrol Fuel System Service cleaning the air intake, throttle body & injectors while treating the fuel, lubricating the fuel pump and removing built up dirt, varnish & deposits that are as a result of your engine's combustion process. 1. On 13 July 2022, the vehicle was serviced by Norris Motor Group. The vehicle had travelled 71,460 klms. The service record states as follows: Car Still Misfiring and Stalling Vehicle misfiring. Found cylinder 2 misfiring, cylinder 4 misfiring, and multiple cylinder misfire codes from scan and trigger installed. Cleaned up the carbon deposits on the throttle body, intake valves, intake ports and injector tips-issue still present. Started a hotline case with Hyundai Australia. Found injectors to be defective. Removed and replaced injectors. Cleaned up carbon again. Reset adaptive valves on engine. Bled cooling system. Test drove vehicle. All OK. 1. It is not entirely clear from the oral and documentary evidence of the parties as to when the applicant first complained to the first respondent about the vehicle. However, it occurred sometime in July 2022. The applicant's documents contained an email to the first respondent dated 18 July 2022 that refers to being in "contact with the dealer to speak about the issue we are having with the vehicle" and an email from the first respondent to the applicant dated 22 July 2022 stating that it was unsure as to why Norris Motor Group referred the applicant to the first respondent's 'Customer Care' department as "under the ACL it states that if you are requesting a replacement, refund or a buyback, you will need to speak to the selling dealership". That email concludes by directing the applicant to contact the "dealership that you bought the vehicle from." 2. On 27 July 2022, the applicant wrote a letter by email "to whom it may concern". No address to the recipient is identified in that letter, nor a copy of the covering email was provided by the applicant to indicate those to whom it was sent. However, it appears the email was sent to the first respondent and it is possible the email was also sent to the second respondent and Norris Motor Group. 3. The email sets out the history of the dispute, and concludes by stating that the applicant is seeking "a refund in order to resolve the issue." The email states that if the applicant "does not hear" from the recipient within 5 business days he will "lodge a formal complaint with fair trading (sic) and/or report my issue to the ACCC". 4. The email refer to the consumer guarantee to supply goods of acceptable quality under s 54 of the ACL; and the provision under s 29 of the ACL that a person must not make false or misleading representations concerning the existence, exclusion, or effect of any condition, warranty, guarantee, right or remedy. 5. The email states as follows: 1. The applicant first encountered "a major intermittent fault" with the engine of the vehicle; and "immediately when the fault occurred the care was taken to Hyundai Nundah in Qld to be assessed, given that they were the closest dealership to me for servicing." The applicant was told "no fault could be found." Hyundai Nundah is Norris Motor Group. 2. The vehicle was taken to Norris Motor Group "repeatedly for the same issue." The applicant had been told "time and time again" that technicians could not identify or diagnose the problem. 3. The vehicle had been to Norris Motor Group "more than 15 times (this year alone)". 4. On one occasion the applicant was told by Norris Motor Group that the issue was caused by him using less than 95 octane fuel. The applicant stated he only used 95 or 98 octane fuel in the vehicle. The applicant complained that he was "instructed" to have a "carbon clean" at the cost of $496.30. 5. The applicant stated that the "issue" remained unresolved after the "carbon clean" and reoccurred "the night after picking it up." The vehicle was then taken back to Norris Motor Group, and new spark plugs were fitted. The "same engine issue" then reoccurred and the vehicle was returned to Norris Motor Group. A "trigger" was fitted to the vehicle to help ascertain the cause of the engine issue, but when the applicant returned to Norris Motor Group he was told the trigger had not been installed correctly, so no data was collected. The "trigger" was reinstalled. 6. A "few days later" the engine issue became "so frequent the car could not be driven (the engine light was now solid and could not be cleared)" and the vehicle was towed back to Norris Motor Group. According to the applicant the data was "analysed" by Norris Motor Group consulting with Hyundai and "after advice" from Hyundai repairs were conducted and the applicant was told the vehicle was "fixed." 7. The applicant stated that "two days" after collecting the vehicle the "issue occurred again." The applicant contacted Hyundai Customer Care because he was frustrated due to being "without a car, paying for a hire car, and paying for ongoing trips back and forth to the dealer." The applicant was told by Hyundai Customer Care to contact the selling dealer. According to the applicant, Kloster Hyundai told him it was "an issue for Hyundai Australia" so he again contacted Hyundai Customer Care. 1. Notably, the applicant's email of 27 July 2022 contains very little detail of what the "engine issue" he complains of actually involved. The chronological version of events in the email is also inconsistent with the dates and details contained in the service records of Norris Motor Group setting out when the vehicle was serviced or repaired; the dates of those services or repairs; and 2. On 5 August 2022, the vehicle was serviced by Norris Motor Group. The vehicle had travelled 72,043 klms. The service record states: Engine Light Flashes and Vehicle in Limp Mode Int. Inspected vehicle for any DTC of ECU upgrades. Nil found. Notice slight hard start on cold start. Carried out extended road test, appears to be OK. Found oil level is above top mark and has traces of fuel in the car, obtained an oil sample, will require oil to be tested. Re-adjusted oil level, roadtested vehicle and found oil level had risen, suggesting high pressure fuel pump's seal is faulty. Allowing fuel to enter the engine under pressure. Removed and replaced high pressure fuel pump, associated bolts, engine oil and filter. Rechecked. 1. A tax invoice service record of Norris Motor Group dated 12 August 2022 has the same information as the service record dated 5 August 2022. A further "repair order" document was issued, which is dated . 2. The "repair order" document of Norris Motor Group has various handwriting on it, and it was not set out in the evidence of the parties as to whose writing that was. The written document refers to "Engine Concern from Previous Concern." The handwriting refers to the engine running roughly; emergency light flashing; variation of engine speed when idling and that the applicant reported that this occurs "at idle with clutch in." The handwriting refers to "occurs 1-2 times per week" and "need to turn off engine to re-set". The handwriting also states: "loan car." 3. The first respondent's documents also contained an email form Mr Flakelar, Group Warranty Administrator, of Norris Motor Group to various persons dated 7 October 2022. The email stated: We still have the vehicle here with us awaiting the customer to collect. I have printed all records for this vehicle from our DMS and attached. The history is in order, newest to oldest. I have included all cancelled repair orders as well to provide snap shots of dates. RO 4144641 is still open, so I have attached a copy of the front and back of the repair order. We installed a trigger 8th September, but due to the dealership relocation and the customer's work schedule the vehicle wasn't in the customer's possession from 12/13th September. The customer remained in a HMCA hire car as the vehicle was undergoing testing to progress the hotline case. All testing up to this point was unable to replicate the customer's concerns, this included 1.67 hours of road testing and checks, a road test by ASM Chris Pilgrim and overnight driving by one of our technicians. The customer returned the hire car to Avis 20/21 September. The intention was to leave the trigger in the vehicle until the end of the month and questioned Alisha if they had been able to trigger any data. Alisha indicated that the vehicle hadn't really been driven, and there was one instance where the vehicle slightly 'faulted' but was unable to trigger. The vehicle was towed in via RACQ as the battery was flat suggesting the trigger fitted to the vehicle had drained the battery (23rd September). The vehicle started immediately when received at the dealership, charged fully 26th September, battery was re-tested 28th September and customer advised to collect the vehicle. I haven't heard from the customer since then. It is worthwhile searching the customer care emails regarding the hire car as this was very poorly handled, in this case this is mentioned in their complaint. There have been 2 hotline cases on this vehicle for this issue. We have never been able to reproduce the customer's concern. 1. The records from Norris Motor Group also state that the applicant was provided a loan vehicle which was loaned between 25 July 2022 and returned on 16 August 2022. 2. The applicant's documents contained a tax invoice for the cost of a rental car between 8 June 2022 and 21 June 2022 in the amount of $1,047.69. That tax invoice is addressed not to the applicant but to "Neil Sullivan" at a different address to the applicant's residential address. No oral evidence was given by the applicant to explain why the rental car was in the name of a different person, or who paid for the rental vehicle. As discussed previously, the applicant submitted at the hearing (as he had in his documents) that he was forced to rent a car for "work" because his vehicle was in the possession of Norris Motor Group. 3. The first respondent's documents contained two "Customer Contact Report" documents from the first respondent indicating there was a "contact" by way of a "visit" by "C. Pilgrim" on two occasions. 4. The first was dated 8 September 2022 and states: Action Plan: Dealer has so for spent 7.5hrs diagnostic time and have been unable to replicate any fault with the vehicle. There are no diagnostic codes, data has been reviewed by Tech Hotline, unable to see any abnormalities. AASM road tested vehicle for approx. 15 klm form cold start to full operating temperature, through urban driving conditions to 80 klm/hr posted area. From zero throttle take off (no clutch shudder or indication of stalling etc) to 2nd gear WOT acceleration from 20 klm/hr in the 80 klm zone without any hesitation. At no time did the vehicle display any abnormal driving condition. Comments. Unable to find any drivability issues with vehicle. Suggest that the customer needs to demonstrate to staff the issue. Note-thought on comment re "flashing engine malfunction light"-this could be the traction control light. If this is the case, when activated engine power will be reduced and normal operation will not be restored until the throttle is completely released. 1. The second was dated 16 November 2022 and stated: Action plan: Previous road test by Northern Region AASM, no performance issues or DTC's found. As requested by HMCA Eastern Region, all spark plugs, ignition coils and fuel injectors have been replaced. A second road test was undertaken. The vehicle operated from cold start, immediately into stop start suburban traffic approx. 6 klm, to smooth flowing 60 klm/hr zone approx. 4 klm, then onto 90 klm/hr and 100 klm/hr zone for 4.5 klm returning to 60 klm/hr zone back to the dealership total distance approx.. 34 klm. No misfire, surging, abnormal performance or warning lights detected at any time during the road test. On return to the dealership while the vehicle was still running a diagnostic scan was performed, no DTC's were found that would indicate any issue with the engine management system. Comments: During the road test I was unable to find any drivability issues with the vehicle. 1. On 28 September 2022, the applicant filed proceedings in the Tribunal. 2. On 18 October 2022, the matter was listed for a Conciliation and Group List (Hearing). The matter did not resolve and it was set down for a special fixture hearing with procedural directions regarding the filing and serving of evidence and the applicant being directed to specify the orders sought. 3. The applicant had filed documents with the Tribunal on 7 October 2022. 4. The first respondent filed documents with the Tribunal on 28 November 2022 (including USB key). 5. The applicant filed documents in reply on 11 November 2022 (including second USB key). 6. The second respondent filed and served no documents. 7. Neither party's documents contained any witness statements that clearly set out relevant factual events. The applicant's documents contained written reference to what, in substance, he said had occurred, but details of what happened in respect of the vehicle and when they happened were set out in general terms. 8. Records prepared contemporaneously, including the service records of Norris Motor Group and the "Customer Contact Reports" of the first respondent carry more significant evidentiary weight, as compared to evidence based on memories of events. 9. The first respondent's documents also contain what is, in essence, a written submission. 10. The hearing at the Tribunal on 23 January 2023 was conducted by Audio-Visual Link. 90 minutes hearing time was allocated to the matter. The second respondent did not make any submissions and relied on the submissions of the first respondent. 11. The applicant gave evidence at the hearing and was briefly questioned by the first respondent. The applicant agreed in cross examination that the vehicle had missed its 60,000 and 70,000 klm services. According to the applicant, he was told by a representative of Norris Motor Group that there was no need for such services to be performed due to the number of times it had been serviced by Norris Motor Group in the context of the applicant's complaints about the performance of the vehicle. 12. As discussed previously, the applicant provided two USB keys with a number of videos with sound. They do not provide any significant material assistance to the oral evidence of the applicant and the documentary evidence contained in the service records. 13. The videos are very brief. It is unnecessary to detail every matter in each of the videos. The dates are not clearly identified in the evidence contained on the first USB key but have a "date modified" on the USB key of 3 October 2022. Some videos show the engine light of the vehicle flashing on and off while the tachometer of the vehicle is oscillating between approximately 500 rpm and 900 rpm. It cannot be seen whether or not the accelerator of the vehicle is being operated. Other videos are said to show the engine of the vehicle "hunting" and the vehicle "shuddering." Those conclusions are not obvious from the sound and vison of the videos. 14. The second USB videos are said to have been taken on 15 December 2022 and 3 January 2023. Again, the videos are very brief. On one video, the engine light (not flashing) is on while the vehicle is idling. On another video, the engine light is flashing while the engine oscillates between approximately 500 rpm and 750 rpm. On another video the engine light is flashing while the engine oscillates between approximately 500 rpm and 600 rpm and the video briefly pans down to the footwell of the vehicle. 15. Both parties made oral submissions. The submissions of the applicant were that the vehicle had a long history of issues that had not been resolved, and were continuing despite the vehicle being provided to Norris Motor Group on many occasions and the applicant being told the vehicle had been repaired. The applicant stated that he continues to drive the vehicle but avoids doing so when possible. 16. The first respondent submitted that the vehicle had been tested on many occasions and the faults complained of by the applicant could not be replicated. The first respondent stated that it had agreed to reimburse the applicant for the cost of the rental car he was claiming as a gesture of goodwill ($1,196.32) , and Norris Motor Group had agreed to reimburse the applicant for the amount of $496.30 for the monies paid by the applicant in respect of repairs to the fuel system of the vehicle. 17. In its written submissions filed on 28 November 2022, the first respondent stated: Since initial NCAT Hearing (sic) on the 18/10/2022 Hyundai Motor Company Australia Pty Ltd has arranged to replace all four ignition coils, along with all four fuel injectors and spark plugs again. 1. It was unclear at the hearing whether this further work had occurred and whether the applicant had agreed to accept this offer. In any event, as discussed previously, the applicant sought to return the vehicle and obtain a full refund, in addition to the cost of renting a car and the reimbursement of the amount paid to conduct repairs to the fuel system.