Baas v M.S. Motors (1998) Limited t/a MS Ford - Reference No. MVD 232/11 (Wellington) [2012] NZMVDT 22 (4 April 2012)

Last Updated: 20 May 2012

Decision No. WN 4 /2012

Reference No. MVD 232/11

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN GRAHAM BAAS

Purchaser

AND M.S. MOTORS (1998) LIMITED trading as MS FORD

Trader

BEFORE THE WELLINGTON MOTOR VEHICLE DISPUTES TRIBUNAL

N J Wills - Barrister, Adjudicator
S Johnson - Assessor

HEARING at Nelson on 9 March 2012

APPEARANCES

Graham Baas, purchaser
Alan Kirby , director for trader

DECISION

Background

[1] On 3 November 2006 Graham Baas (the purchaser) purchased a 1999 Ford Mustang registration CZG527 (the car) for $40,000 from M.S Motors (1998) Ltd trading as M.S. Motors (the trader). The purchaser alleges he was misled by the trader prior to buying the car. He says he was led to believe that the damage that existed at the time of importation was minimal when that was not the case.

[2] The trader's position is that the purchaser was told the car was imported as a damaged vehicle. The trader cannot respond to allegations of misleading conduct because the salesperson who dealt with the purchaser no longer works for the trader. The trader says however that the damage to the car was minimal.

[3] Prior to the commencement of the Tribunal’s inquiry the Tribunal appointed Mr Johnson who took the oath required of an assessor by Schedule 1, cl.10(2) of the Motor Vehicle Sales Act 2003. As an assessor appointed pursuant to the Motor Vehicle Sales Act 2003 Mr Johnson assisted the adjudicator but the application was determined by the adjudicator alone.

Facts

[4] Mr Baas bought the car from the trader back in November 2006 for $40,000. At that time he did not receive any sales documentation.

[5] In 2011 Mr Baas decided to sell the car. He took the car to a car yard (The Car Company) who advised him that because the car had been imported as a damaged vehicle, it was probably only worth half what he thought it was worth. Prior to discovering that the car was flagged as a damaged vehicle, Mr Baas said that he had discussed a possible sale price of $30,000 with the Car Yard (with him receiving $28,000 from the sale).

[6] Mr Baas went back to the trader to obtain the sales documentation for the car. He was provided with a copy of a vehicle offer and sale agreement (VOSA) and a supplier information notice (SIN) (often referred to as a window card) both of which had a signature that purported to be Mr Baas’ signature. Mr Baas gave evidence that the signature was not his signature and provided copies of his drivers licence and passport to support that claim. Mr Baas’ evidence was that he did receive copies of these documents when he bought the car.

[7] The trader also provided Mr Baas with a copy of an agreement to buy a vehicle privately: the sale was recorded as a private transaction between Mr Baas and a person called Ian Patton. Mr Baas accepted that he signed this document but said that he did not read it at the time and did not understand that he was not buying the car from the trader.

[8] Also in the documentation was a copy of a valuation provided by the trader to Mr Baas, valuing the car at $40,000. Mr Baas told the tribunal that he did not ask for this document and that it did not have any influence on his decision to buy the car. He thought it was simply a piece of paper saying what the car was worth.

[9] At the hearing, Mr Kirby, a director for the trader advised that the car had been sold on behalf of Mr Patton but accepted that for the purposes of Mr Baas’ application, the car was purchased from the trader. He could not explain the signatures on the VOSA and SIN (because the salesperson who dealt with the sale was no longer with the company, and Mr Kirby was not running the business at the time of the sale) but said that the documents had been likely put together for the company’s records.

[10] The key issue in this case is what Mr Baas understood about the state of the car when he purchased it. It is not disputed that the car was imported as a damaged vehicle. That information was required to be identified on the SIN by recording “yes” in the box “Imported as a damaged vehicle”. The SIN that was held on file by the trader recorded “yes” in the appropriate place but had someone else’s signature purporting to be Mr Baas’ signature in the Buyer Signature box.

[11] In his written application to the tribunal, Mr Baas said (in the context of explaining what happened when he bought the car):

“On the window card it had imported damaged I asked the sales person what did this mean. He said it had a damaged panel and had to be repaired I took this as it must have had a dent and repaired + painted.”

[12] At the hearing before the tribunal, Mr Baas took the tribunal through his actions in the lead-up to buying the car. He said that he looked at the car many times and ultimately decided to take the car for a test-drive. When he went back to the trader’s yard to arrange that, he was told by the salesperson that the car was not on the yard because it was away having repairs carried out to one of the doors. Mr Baas’ understanding was that the car had been damaged on the yard.

[13] Mr Baas explained to the tribunal that when the car was back on the yard, he took it for a test drive. He said that before he bought the car he was not told that the car had been imported as a damaged vehicle nor had he seen the window card.

[14] Given the statement in Mr Baas’ application that directly contradicted that evidence, the tribunal asked Mr Baas to clarify when he had seen the window card? Mr Baas said, when he went to look at the car. The tribunal asked him whether this was before or after purchasing the car. Mr Baas said that it was before he bought it. He said he saw the window card before he bought the car – and that it said that the car had been imported as a damaged vehicle. He asked what that meant and was told by the salesperson that the car had a damaged door panel and had to be repaired and the paint matched up.

[15] At this point in his evidence Mr Baas was unclear about whether this repair was the same repair he had discussed with the salesperson when he had gone into the yard to arrange to take the car for a test drive. First he said that there was only one discussion about damage to the car, but then he said that he had one discussion about the damage to the car when he noticed the window card said the car was imported as a damaged vehicle and that this was when he first saw the car and that the discussion about the panel repair (when the car was absent from the lot) was a separate discussion.

[16] The tribunal asked again about the discussion that arose from Mr Baas having seen the window card. Mr Baas said he asked what the damage was and was told it was minor door damage but that he couldn’t remember when that discussion was. The tribunal asked if he thought about making further enquiries about the damage – Mr Baas said he didn’t because he was in love with the car and had decided to buy it.

[17] Evidence was presented by both parties as to the extent of the damage to the car at the time of importation. Mr Baas provided the LTSA Light Vehicle Repair Record of Certification which was completed by Neville Simpson. The description of the damage was recorded as “Vehicle damaged in front inner guards and chassis rail swung to the left.” The required repairs included re-alignment of the chassis, repair of the chassis rails, repair of both the left and right inner guard reinforcers and wheel alignment. Mr Baas also provided some photographs he said he had obtained from the LTSA showing the front chassis of the vehicle when it was repaired. The photographs indicated a significant distortion of the chassis rail.

[18] Mr Kirby provided a report from Neville Simpson of Cert-A-Car (dated 24 January 2012). Mr Simpson carried out a visual inspection of the car. It is ironic that it appears Mr Simpson is the same person who certified the car for the LTSA. In his latest report he recorded the various signs of repair to the left chassis rail, left front bumper grille and left headlight. He thought it likely that the steering rack may have been replaced and that the chassis had been pulled on a chassis machine (to realign it to original specifications). He said that there was no sign of damage to the left inner guard area so the damage was “probably very low”.

The damage to the car

[19] The issue in this case is whether or not Mr Baas has been misled about the state of the car when he purchased it. Although Mr Baas gave different versions of events, it seems clear that he saw a window card declaring that the car had been imported as a damaged vehicle before he bought the car so was not misled in that regard.

[20] The remaining question is whether or not Mr Baas was misled about the circumstances surrounding the repairs that were carried out to the car? Mr Baas is very clearly of the view that he asked about the repairs and that the extent of those repairs was minimised.

[21] It is up to Mr Baas to prove his case to the tribunal on the balance of probabilities. So the tribunal must be able to conclude, having heard all of the evidence, that it was more likely than not that he was misled. To enable the tribunal to reach such a conclusion there must be clear evidence of what Mr Baas was told about the damage to the car.

[22] Having considered the evidence very carefully, the tribunal concludes there is insufficient evidence to determine that Mr Baas was misled about the repairs carried out on the car to correct the damage that existed when the car was imported. As Mr Baas said himself at the hearing, it is very difficult to remember events of six years ago with particular clarity. Mr Baas did not have a clear recollection of events and his version of what happened changed throughout the course of the hearing. The tribunal is not persuaded that Mr Baas has a clear recollection of what he was told about the damage to the car when it was imported. It is also not clear whether his recollection about that conversation is distinct from what he was told about the repairs being undertaken after the car was damaged on the trader’s yard.

[23] In those circumstances, the tribunal has no option but to dismiss Mr Baas’ application.

Orders

1. The purchaser’s application is dismissed.
   

DATED at WELLINGTON this 4th day of April 2012

N Wills
Adjudicator