Opiweb Limited v C & R Motors Limited t/a Just Prestige - Reference No. MVD 184/2017 [2017] NZMVDT 111 (9 August 2017)

Last Updated: 15 September 2017

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2017] NZMVDT 111 Reference No. MVD 184/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	OPIWEB LIMITED
		Purchaser
	AND	C & R MOTORS LIMITED TRADING AS JUST PRESTIGE
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Gregory, Assessor
HEARING at Auckland on 2 August 2017
DATE OF DECISION 9 August 2017
APPEARANCES
Mr M Khal, for the Purchaser
Mr T Su, for the Trader

ORDERS

1. Opiweb Limited’s application is dismissed.
2. Opiweb Limited shall pay to the Crown the Tribunal’s hearing costs of $500 at the Auckland District Court, Private Bag 92-020, Auckland within 14 days of the date of this order.

100. The issue of costs payable to C&R Motors is reserved and the Tribunal invites submissions from both parties on the question of costs payable to C&R Motors. If C&R Motors wishes to pursue costs it must file submissions within five working days of the date of this decision. Opiweb Limited then has five working days to reply.

DECISION

[1] The Tribunal cannot consider this application because:

• (a) The Tribunal cannot rehear matters that it has already determined.
• (b) Even if the Tribunal was able to rehear matters, the District Court decision dismissing Opiweb Limited’s appeal of the previous Tribunal decision is final. That finality cannot be circumvented by a further application to the Tribunal.

[2] These proceedings are vexatious and ought never to have been brought. Under cl 14(2)(a)(i) of Sch 1 to the Motor Vehicle Sales Act 2003 (“the Act”), Opiweb Limited should pay the reasonable costs of the Tribunal hearing. Further, C&R Motors may be entitled to recover costs. I reserve that question of costs to allow the parties an opportunity to make further submission.

REASONS

Introduction

[3] On 14 January 2016, Opiweb Limited purchased a 2015 Mercedes-Benz GLE450 AMG Sport Coupe, registration JHL1, for $130,000 from C&R Motors.
[4] Opiweb Limited was unhappy with various aspects of the vehicle, and in early 2016 made an application to the Motor Vehicle Disputes Tribunal seeking relief, including compensation of $53,637.35.
[5] On 22 April 2016, the Motor Vehicle Disputes Tribunal issued a decision,[1] under which C&R Motors was required to perform repairs to the vehicle. Relevant to this application, C&R Motors was ordered to repaint the vehicle’s wheels and to rectify the vibration in the vehicle’s wheels.
[6] Opiweb Limited appealed to the District Court under cl 16 of Sch 1 to the Act. Its stated grounds for appeal were that the Tribunal made an error in fact and law. More particularly, Opiweb Limited claimed that the Tribunal’s decision was incomplete and did not take into account the entirety of the problem. In substance, Opiweb Limited wanted to have the vehicle’s wheels replaced rather than repainted and repaired. Opiweb Limited preferred this outcome as the replaced wheels would come with a three year manufacturer’s warranty, whereas the repaired wheels would carry no such warranty.
[7] On 21 March 2017 the District Court dismissed Opiweb Limited’s appeal and awarded $500 in costs to C&R Motors.[2]
[8] On 8 June 2017, Opiweb Limited filed a new application with the Tribunal, asking the Tribunal to reconsider the matter and order C&R Motors to replace the vehicle’s wheels and to pay significant compensation.
[9] Before the hearing, I convened a teleconference with the parties, advising Opiweb Limited that its application could not be considered by the Tribunal as the Tribunal did not have jurisdiction to do so – because the matter had already been considered and determined by the Tribunal and on appeal by the District Court. At the end of the teleconference the parties agreed that Opiweb Limited would deliver the vehicle to C&R Motors’ preferred repairer to have the necessary repairs performed, as previously ordered by the Tribunal.
[10] Opiweb Limited has since gone back on this arrangement and has declined to allow C&R Motors the opportunity to repair the vehicle. Instead Opiweb Limited sustained its application before the Tribunal.
[11] On 20 July 2017 Opiweb Limited sought an indefinite adjournment of the hearing to enable it to negotiate further with C&R Motors and, if Opiweb Limited thought it appropriate, to then file an amended claim if those negotiations were unsuccessful. I declined the adjournment.

The Issues

[12] There is only one issue that requires consideration in this case – can the Tribunal hear Opiweb Limited’s application?

Can the Tribunal hear Opiweb Limited’s application?

[13] There are two reasons why the Tribunal cannot consider this application:

• (c) The Tribunal cannot rehear matters that it has already determined.
• (d) Even if the Tribunal was able to rehear matters, the District Court decision dismissing Opiweb Limited’s appeal is final. That finality cannot be circumvented by a further application to the Tribunal.

The Tribunal cannot rehear matters it has already determined

[14] As set out above, this matter was heard and determined by the Tribunal in April 2016.
[15] I consider that the current application is an application for a rehearing. The facts are the same, the law is the same, Opiweb Limited simply seeks a different outcome, because it was unsatisfied with the outcome of the first Tribunal hearing.
[16] The procedural rules of the Tribunal are set out in the following provision of the Act:[3]

1. Procedure generally

Except as otherwise provided in this Act and subject to the rules of natural justice, the procedure of a Disputes Tribunal is to be the procedure that the adjudicator thinks fit.

[17] On its face this is a broad provision, which gives the Tribunal significant leeway in determining how matters before it should proceed. However, the High Court has held, in respect of a similar provision, that this broad provision does not permit a tribunal to conduct a rehearing.[4] The High Court said a rehearing is not a matter of procedure, but a matter of jurisdiction,[5] and absent an express jurisdiction to rehear matters, a tribunal has no such power, irrespective of its procedural rules.
[18] The Tribunal has no express jurisdiction to rehear matters in its constituting legislation, the Motor Vehicle Sales Act 2003. Neither does the Tribunal have an inherent jurisdiction to rehear matters. New Zealand courts have confirmed that statutory tribunals such as the Motor Vehicle Disputes Tribunal have no inherent jurisdiction.[6] Consequently, the Tribunal has no jurisdiction to rehear this matter.

The District Court decision is final

[19] Even if the Tribunal had the jurisdiction to rehear this matter, it could not do so as the District Court decision dismissing Opiweb Limited’s appeal is final.
[20] The right to appeal against a Tribunal decision is found in cl 16 of Sch 1 to the Act. Clause 16(5) of Sch 1 to the Act states that “the District Court’s decision given under this clause is final.” This means that the District Court’s decision in relation to the matter under appeal cannot then be revisited, other than by judicial review.[7]
[21] In this application Opiweb Limited seeks the same remedies it has previously sought in the Tribunal and District Court. In light of cl 16(5) of sch 1 to the Act, I cannot hear Opiweb Limited’s application. The District Court’s decision is final and that finality cannot then be circumvented by a further application to the Tribunal seeking the same remedy that was declined in the District Court. Opiweb Limited’s sole remedy, if it remains unsatisfied, is to apply for judicial review.

Costs

[22] Under cl 14(1)(a)(i) of Sch 1 to the Act, the Tribunal may award costs against a party where it is satisfied that the proceedings are frivolous or vexatious or ought not to have been brought.
[23] I am satisfied that Opiweb Limited has attempted to use these proceedings to revisit decisions of the Tribunal and the District Court with which it does not agree. Despite being advised by the Tribunal that it does not have jurisdiction to consider the application, Opiweb Limited has sustained the proceedings. I am satisfied these proceedings are vexatious and ought never to have been brought.
[24] Under cl 14(2)(a)(i) of Sch 1 to the Act, I order Opiweb Limited to pay $500 to the Crown, being the reasonable costs of the Tribunal hearing.
[25] I reserve the question of costs payable to C&R Motors under cl 14(2)(b) of Sch 1 to the Act, and invite submissions from both parties on the question of costs payable to C&R Motors.

Conclusion

[26] Opiweb Limited’s application is dismissed
[27] Opiweb Limited shall pay costs to the Crown in the amount of $500. The issue of costs payable to C&R Motors is reserved and the Tribunal invites submissions from both parties on the question of costs payable to C&R Motors. If C&R Motors wishes to pursue costs it must file submissions within five working days of the date of this decision. Opiweb Limited then has five working days to reply.

DATED at AUCKLAND this 9th day of August 2017

B.R. Carter
Adjudicator

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[1] Opiweb Limited v C & R Motors Limited t/a JP Autos [2016] NZMVT Auckland 51

[2] Opiweb Limited v C & R Motors Limited T/A JP Autos DC Auckland CIV-2016 -044-000929, 21 March 2017

[3] Motor Vehicle Sales Act 2003, Sch 1, cl 1.

[4] Browne v Minister of Immigration [1989] NZHC 880; [1990] NZAR 67 at 69-70.

[5] Ibid.

[6] See the cases cited in Reid v New Zealand Fire Service Commission [2012] NZHRRT 27 at [29].

[7] Clause 16(6) of Sch1 to the Motor Vehicle Sales Act 2003.