Whittington v Bayswater Vehicles Limited Reference No. MVD 367/2017 [2018] NZMVDT 111 (14 May 2018)

Last Updated: 18 June 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL
		[2018] NZMVDT 111 Reference No. MVD 367/2017
	IN THE MATTER	of the Motor Vehicle Sales Act 2003
	AND
	IN THE MATTER	of a dispute
	BETWEEN	CAROL ANN WHITTINGTON
		Purchaser
	AND	BAYSWATER VEHICLES LIMITED
		Trader
MEMBERS OF TRIBUNAL
B R Carter, Barrister – Adjudicator
S Gregory, Assessor
HEARING at Napier on 27 February 2018 and Hastings on 13 April 2018
DATE OF DECISION 14 May 2018
APPEARANCES
C A Whittington, Purchaser M Whittington, Witness for the Purchaser
H Saunders, for the Trader T Chittenden, Witness for the Trader

ORDERS

1. Carol Whittington’s application is dismissed.

DECISION

[1] The vehicle had a missing parcel tray, which breached the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993 (the CGA). Carol Whittington has not proven that the other alleged faults breached the acceptable quality guarantee.
[2] Ms Whittington has proven that Bayswater Vehicles Limited has engaged in misleading conduct that breached s 9 of the Fair Trading Act 1986 (the FTA). Bayswater represented that the vehicle had one previous owner when it had two previous private owners and had twice been registered in Bayswater’s name. Bayswater has not engaged in misleading conduct by failing to disclose the full repair and service history of the vehicle, or by misrepresenting the odometer reading at the time of sale.
[3] Although Ms Whittington was misled by Bayswater’s representation as to the number of previous owners, she has not suffered any recoverable loss as a result of that representation. Accordingly, Ms Whittington is not entitled to a remedy under the FTA.

REASONS

Introduction

[4] On 27 July 2017, Ms Whittington purchased a 2012 Suzuki Swift RS for $15,558 from Bayswater.
[5] Ms Whittington and her son Mark Whittington — who presented the claim on behalf of Ms Whittington — say that the vehicle has had a number of faults since purchase. Specifically, the Whittingtons say that the vehicle’s odometer was faulty, its front grill requires repair, its parcel tray was missing, its tyres were in poor condition, its suspension was too hard and the vehicle shuddered under braking.
[6] The Whittingtons also say that Bayswater engaged in misleading conduct when selling the vehicle to Ms Whittington. They say that Bayswater represented that the vehicle had one previous owner, when the vehicle had more than one previous owner. The Whittington’s also say that Bayswater failed to disclose the previous repair and service history of the vehicle.
[7] Bayswater has replaced the missing parcel tray and the alleged odometer and suspension and shuddering faults are no longer present. The Whittingtons have applied to the Tribunal seeking orders that Bayswater repair the vehicle’s remaining faults and compensate Ms Whittington for the loss she has suffered as a result of being misled about the vehicle.
[8] Bayswater denies that the vehicle has faults that breach the CGA. Bayswater does accept that it told Ms Whittington that the vehicle had one previous owner, and that this representation was incorrect, but it says that Ms Whittington has suffered no loss because of this representation. Further, it says it has not engaged in misleading conduct by failing to disclose the previous repair and service history of the vehicle. Bayswater says it had no obligation to disclose that information, in circumstances where Ms Whittington never asked about the repair and service history.

The Issues

[9] The issues requiring consideration in this case are:

• (a) Does the vehicle have faults that breach the acceptable quality guarantee in s 6 of the CGA?
• (b) If so, what remedy is Ms Whittington entitled to under the CGA?
• (c) Did Bayswater engage in misleading conduct that breached s 9 of the FTA?
• (d) If so, what remedy is Ms Whittington entitled to under the FTA?

Does the vehicle have a fault that breaches the acceptable quality guarantee?

[10] Section 6 of the CGA imposes on suppliers and manufacturers of consumer goods "a guarantee that the goods are of acceptable quality." Section 2 of the CGA defines "goods" as including vehicles.
[11] The expression "acceptable quality" is defined in s 7 as follows:

“7 Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—

(a) fit for all the purposes for which goods of the type in question are commonly supplied; and

(b) acceptable in appearance and finish; and

(c) free from minor defects; and

(d) safe; and

(e) durable,—

as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—

(f) the nature of the goods:

(g) the price (where relevant):

(h) any statements made about the goods on any packaging or label on the goods:

(ha) the nature of the supplier and the context in which the supplier supplies the goods:

(i) any representation made about the goods by the supplier or the manufacturer:

(j) all other relevant circumstances of the supply of the goods.

(2) Where any defects in goods have been specifically drawn to the consumer's attention before he or she agreed to the supply, then notwithstanding that a reasonable consumer may not have regarded the goods as acceptable with those defects, the goods will not fail to comply with the guarantee as to acceptable quality by reason only of those defects.

(3) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (2) are those disclosed on a written notice displayed with the goods.

(4) Goods will not fail to comply with the guarantee of acceptable quality if—

(a) the goods have been used in a manner, or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and

(b) the goods would have complied with the guarantee of acceptable quality if they had not been used in that manner or to that extent.

(5) A reference in subsections (2) and (3) to a defect means any failure of the goods to comply with the guarantee of acceptable quality.”

[12] In considering whether or not goods meet the guarantee of acceptable quality, the Tribunal must consider the quality elements as set out in s 7(1)(a)–(e) of the CGA as modified by the factors set out in s 7(1)(f)–(j), from the perspective of a “reasonable consumer”. The test is an objective one; it is not a view of those factors from Ms Whittington’s subjective perspective.
[13] The Whittingtons say that the vehicle’s odometer was faulty, its front grill requires repair, its parcel tray was missing, its tyres were in poor condition, its suspension was too hard and the vehicle shuddered under braking.

The faulty odometer

[14] The Whittington’s allege that the vehicle had a faulty odometer, which incorrectly recorded the distance that the vehicle had travelled.
[15] The vehicle’s odometer reading at the time of sale is unclear. The vehicle offer and sale agreement and Consumer Information Notice provided to Ms Whittington record that the vehicle’s odometer reading was 32,900 km. The warrant of fitness check sheet completed on 28 July 2017, records that the vehicle’s odometer reading was 34,205 km.
[16] Mr Whittington says that the vehicle’s odometer reading was approximately 32,900 km at the time of sale. Mr Whittington says that the odometer reading quickly increased, despite the vehicle not travelling the distances shown on the odometer. Mr Whittington says the odometer increased at a rate of about 500 km per week, when he and his mother would only drive between 80 km and 160 km per week.
[17] The Whittingtons returned the vehicle to Bayswater on about 26 October 2017, by which time the odometer reading was 37,946 km. Bayswater assessed the vehicle and found no fault relating to the odometer. It also performed two road tests, and found no fault with the vehicle’s odometer. The Whittingtons also had the vehicle assessed by an independent auto electrician, who also found no fault with the vehicle’s odometer.
[18] Bayswater says that the vehicle never had a fault with its odometer. It says that the vehicle offer and sale agreement and Consumer Information Notice incorrectly recorded the vehicle’s odometer reading, and that the true odometer reading was 34,205 km, as recorded on the warrant of fitness check sheet, meaning that the vehicle’s odometer reading has not increased as much as the Whittingtons think.
[19] Mr Whittington has advised that the odometer fault now appears to have been corrected, and that the odometer now functions as it should. Bayswater denies having performed any repairs on the odometer.
[20] I found this aspect of Ms Whittington’s claim difficult to resolve. Mr Whittington was adamant that the vehicle’s odometer reading was approximately 32,900 km at the time of sale. He says that he checked the odometer reading at the time of sale. The Whittingtons were also adamant that the odometer was not accurately recording the distance they travelled in the vehicle. I found the Whittingtons to be straightforward and honest witnesses, and have no reason to doubt the veracity of their evidence on this point.
[21] However, the other evidence suggests that there was no fault with the vehicle’s odometer. Neither Bayswater nor the independent auto electrician could find a fault, and despite no known repairs being performed on the odometer, the odometer now works as it should. Further, Mr Gregory, who is the Tribunal’s Assessor and an experienced automotive engineer, advises that the fault described by the Whittingtons would be highly unusual, and that he has not encountered such a fault in his career.
[22] On balance, and bearing in mind that Ms Whittington must prove her claim on the balance of probabilities, I am not satisfied that Ms Whittington has proven that the vehicle had a faulty odometer. It may well have had a faulty odometer, but I need to be satisfied that the vehicle more likely than not had a faulty odometer. In light of the evidence that Bayswater and the independent auto electrician could find no fault, and Mr Gregory’s advice that such a fault is highly unusual, I am not satisfied that it is more likely than not that the vehicle had this fault. Accordingly, I am not satisfied that the vehicle had a fault with its odometer that breached the acceptable quality guarantee in s 6 of the CGA.

The front grill

[23] The vehicle has a cracked front grill. I inspected the vehicle with Mr Gregory after the second hearing in Hastings and noticed a small crack in the bottom of the front grill.
[24] I do not consider that the crack in the front grill breaches the acceptable quality guarantee in s 6 of the CGA. The guarantee does not require that a vehicle must be in immaculate condition and free of all defects when it is supplied to a consumer. Instead, the vehicle must be as acceptable in appearance and finish and as free of defects as a reasonable consumer would find acceptable, taking account of factors such as the age, price and mileage of the vehicle.
[25] In this case, Ms Whittington purchased a five-year-old Suzuki Swift for $15,558. The vehicle had an odometer reading of at least 32,900 kms. I consider that a reasonable consumer would quite rightly expect the vehicle to be in good condition and free of noteworthy defects. However, I consider that a reasonable consumer would also understand that a vehicle of this age, price and mileage may have minor pre-existing blemishes and defects, such as a small crack in the front grill.
[26] That being the case, I am not satisfied that the crack in the front grill breaches the acceptable quality guarantee in s 6 of the CGA. The crack does not affect the performance of the vehicle and does not adversely affect the vehicle’s appearance. In those circumstances, I consider that it is the kind of minor defect that a reasonable consumer would find acceptable in a vehicle of this price, age and mileage.
[27] Although this fault does not breach the acceptable quality guarantee, Bayswater has nonetheless agreed to replace the vehicle’s front grill.

The missing parcel tray

[28] The vehicle had no parcel tray when it was supplied to Ms Whittington. Bayswater has since replaced the parcel tray.
[29] I am satisfied that the missing parcel tray breached the acceptable quality guarantee. I consider that a reasonable consumer would expect that a vehicle of this price, age and mileage would be supplied with its original factory accessories, and that the seller would disclose if any of those accessories were not included with the vehicle.
[30] In this case, the vehicle was not supplied with a parcel tray – one of its original accessories. I am satisfied that the vehicle was therefore not of acceptable quality, in breach of s 6 of the CGA.

The condition of the tyres

[31] Ms Whittington also alleged that the tyres were in poor condition. I inspected the tyres with Mr Gregory after the second hearing. The tyres were in acceptable condition taking account of the price, age and mileage of the vehicle.
[32] As with the cracked front grill, the acceptable quality guarantee does not require that a vehicle must be in immaculate condition and free of all defects when it is supplied to a consumer. I am satisfied that the vehicle’s tyres, although far from perfect, are in acceptable condition. They have sufficient tread and remain safe. Accordingly, the tyres do not breach the acceptable quality guarantee. Nonetheless, Bayswater has also agreed to replace the tyres.

The hard suspension and shuddering under braking

[33] Mr Whittington also described that the vehicle initially had hard suspension and shuddered under braking.
[34] Mr Whittington says that the symptoms have stopped and that the vehicle now drives acceptably. Mr Whittington considers that someone has performed repairs to rectify these symptoms. Bayswater denied performing any repairs.
[35] Mr Gregory notes that the vehicle is the sport model of the Suzuki Swift, which is more powerful, lower to the ground and has stiffer suspension than the 1000cc Suzuki Alto Ms Whittington previously owned. Mr Gregory considers that the increased power, lower ride height and stiffer suspension are likely to have led to the symptoms experienced by Mr Whittington, rather than any underlying fault with the vehicle, and that the Whittingtons likely no longer notice these symptoms because they have become accustomed to the performance of the vehicle.
[36] Taking account of Mr Gregory’s advice, and in the absence of any corroborative evidence proving the nature and existence of this fault, I cannot be satisfied that the vehicle had a fault with its suspension or that it shuddered under braking in a manner that breached the acceptable quality guarantee in s 6 of the CGA.

What remedy is Ms Whittington entitled to under the CGA?

[37] The remedies relevant to this case are set out in s 18 of the CGA, which provides:

“18 Options against suppliers where goods do not comply with guarantees

(1) Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2) Where the failure can be remedied, the consumer may—

(a) require the supplier to remedy the failure within a reasonable time in accordance with section 19:

(b) where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(i) have the failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having the failure remedied; or

(ii) subject to section 20, reject the goods in accordance with section 22.

(3) Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—

(a) subject to section 20, reject the goods in accordance with section 22; or

(b) obtain from the supplier damages in compensation for any reduction in value of the goods below the price paid or payable by the consumer for the goods.

(4) In addition to the remedies set out in subsection (2) and subsection (3), the consumer may obtain from the supplier damages for any loss or damage to the consumer resulting from the failure (other than loss or damage through reduction in value of the goods) which was reasonably foreseeable as liable to result from the failure.”

[38] The only fault that breached the acceptable quality guarantee was the missing parcel tray, and Bayswater has replaced that part. Accordingly, Ms Whittington is entitled to no further remedy under the CGA.

Did Bayswater engage in misleading conduct in breach of s 9 of the FTA?

[39] The Whittingtons allege that Bayswater engaged in misleading conduct when selling the vehicle to Ms Whittington. They say that Bayswater represented that the vehicle had one previous owner, when the vehicle had more than one previous owner. The Whittington’s say that Bayswater also engaged in misleading conduct by failing to disclose the previous repair and service history of the vehicle. I have also considered whether Bayswater misrepresented the vehicle’s odometer reading at the time of sale.
[40] Section 9 of the FTA provides:

“9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

[41] The test for establishing a breach of s 9 was set out by the Supreme Court in Red Eagle Corporation v Ellis:[1]

“The question to be answered in relation to s 9 ... is ... whether a reasonable person in the claimant’s situation — that is, with the characteristics known to the defendant or of which the defendant ought to have been aware — would likely have been misled or deceived. If so, a breach of s 9 has been established. It is not necessary under s 9 to prove that the defendant’s conduct actually misled or deceived the particular plaintiff or anyone else. If the conduct objectively had the capacity to mislead or deceive a hypothetical reasonable person, there has been a breach of s 9. If it is likely to do so, it has the capacity to do so. Of course the fact that someone was actually misled or deceived may well be enough to show that the requisite capacity existed.”

Did Bayswater misrepresent the number of previous owners in breach of s 9 of the FTA?

[42] I am satisfied that Bayswater misrepresented the number of previous owners of the vehicle.
[43] The vehicle offer and sale agreement and Consumer Information Notice each record that the vehicle had one previous owner. The Whittington’s also gave evidence that they were told by Bayswaters’ salesman that the vehicle had one previous owner.
[44] The vehicle had more than one previous owner. Ms Whittington is the third registered private owner of the vehicle, and the vehicle has also twice been registered in Bayswaters’ name.
[45] I am therefore satisfied that Bayswater has engaged in conduct that breached s 9 of the FTA. It misled Ms Whittington about the number of previous owners of the vehicle.

Did Bayswater engage in misleading conduct by failing to disclose the service and repair history of the vehicle?

[46] The Whittingtons also allege that Bayswater engaged in misleading conduct by failing to disclose the service and repair history of the vehicle. Mr Whittington submitted that the vehicle is worth less because of the unknown work that may have been performed on the vehicle and because they do not know the service history of the vehicle.
[47] This allegation requires the Tribunal to consider the extent to which non-disclosure or silence can be a breach of s 9 of the FTA and, if so, whether s 9 was breached on the facts of the present case.
[48] Under the common law principle of caveat emptor (let the buyer beware), silence, or the failure to disclose a material fact, could not give rise to a claim.[2] Instead, a claimant needed to show that the other party had made a positive representation before it could succeed in any claim.
[49] This principle of caveat emptor has now been displaced by the FTA. Under the FTA, silence or the failure to disclose a material fact, can constitute misleading or deceptive conduct.[3] In Des Forges v Wright, Elias J stated:[4]

Silence may constitute misleading or deceptive conduct, but whether it does is to be objectively assessed in all the circumstances ...

... Conduct may be misleading or deceptive within the meaning of s 9 of the Fair Trading Act 1986 by an omission to provide information even if no obligation to provide such information exists as a matter of general law, outside the standards of conduct required by the Fair Trading Act.

[50] Since Des Forges, the courts have developed a “reasonable expectation of disclosure” test in several other cases.[5] Under that test, silence, or the failure to disclose a material fact can be misleading where, taking account of the circumstances of the particular case, a reasonable consumer would expect the information to have been disclosed.
[51] In this case, I must consider whether a reasonable consumer would expect Bayswater to disclose the service and repair history of this vehicle, including for services and repairs that were not conducted by Bayswater.
[52] I consider that a reasonable consumer would may Bayswater to disclose all adverse service or repair history information that it was aware of that would have been material to a reasonable consumer’s purchasing decision, Trader’s generally have an obligation to disclose such information. However, in this case there is no evidence to suggest that Bayswater had any adverse information about this vehicle in its possession, or that it was aware of any such information.
[53] Further, I do not consider that a reasonable consumer would expect a motor vehicle trader to actively seek out and then disclose the service and repair history of a vehicle that it does not already possess or know of. Imposing such an obligation would have massive ramifications on the used car sales industry, with all dealers being required to conduct potentially extensive and costly enquiries regarding every vehicle they attempt to sell, with no guarantee that they would obtain that information. Additionally, the FTA does not ordinarily impose an obligation on a trader to disclose information that it does not have in its possession or otherwise know of, and the circumstances of this case are not such that I should depart from this usual approach.
[54] Accordingly, I am not satisfied that Bayswater had an obligation to disclose the complete service and repair history of the vehicle, so it has not engaged in misleading conduct, in breach of s 9 of the FTA, by failing to do so.

Did Bayswater misrepresent the vehicle’s odometer reading

[55] The vehicle offer and sale agreement and Consumer Information Notice both stated that the vehicle’s odometer reading was 32,900 km at the time of sale, but Bayswater now says that this was unlikely to have been the vehicle’s true odometer reading. Bayswater says that the odometer reading was likely to have been 34,205 km.
[56] If the odometer reading was in fact 34,205 km at the time of sale, the vehicle offer and sale agreement and Consumer Information Notice would have been misleading. However, I am not satisfied that the odometer reading on the vehicle offer and sale agreement and Consumer Information Notice was incorrect. As discussed above in relation to the alleged odometer fault, Mr Whittington was clear in his evidence that the odometer reading was 32,900 km at the time of sale, and the Whittingtons do not allege that the odometer reading was any higher than 32,900 km. That being the case, I cannot be satisfied that Bayswater made a misleading representation about the vehicle’s odometer reading in breach of s 9 of the FTA.
[57] Even if the odometer reading on the vehicle offer and sale agreement and Consumer Information Notice was incorrect, I am not satisfied that Ms Whittington suffered any loss as a result. Given the small difference between 32,900 km and 34,500 km, I am not satisfied that the vehicle would have been worth any less if its odometer reading was 34,500 km at the time of sale.

What remedy is Ms Whittington entitled to under the FTA?

[58] The remedies available for a breach of the FTA are discretionary. Relevant to this case they are set out in s 43(1) to (3) of the FTA which is as follows:

“43 Other orders

(1) This section applies if, in proceedings under this Part or on the application of any person, a court or the Disputes Tribunal finds that a person (person A) has suffered, or is likely to suffer, loss or damage by conduct of another person (person B) that does or may constitute any of the following:

(a) a contravention of a provision of Parts 1 to 4A (a relevant provision):

(b) aiding, abetting, counselling, or procuring a contravention of a relevant provision:

(c) inducing by threats, promises, or otherwise a contravention of a relevant provision:

(d) being in any way directly or indirectly knowingly concerned in, or party to, a contravention of a relevant provision:

(e) conspiring with any other person in the contravention of a relevant provision.

(2) The court or the Disputes Tribunal may make 1 or more of the orders described in subsection (3)—

(a) whether or not the court grants an injunction, or the court or the Disputes Tribunal makes any other order, under this Part; and

(b) whether or not person A made the application or is a party to the proceedings.

(3) The orders are as follows:

(a) an order declaring all or part of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement) relating to such a contract,—

(i) to be void; and

(ii) if the court or the Disputes Tribunal thinks fit, to have been void at all times on and after a date specified in the order, which may be before the date on which the order is made:

(b) if an order described in paragraph (a) is made in respect of a contract that is associated with a collateral credit agreement, an order vesting in person B all or any of the rights and obligations of person A under the collateral credit agreement:

(c) an order in respect of a contract made between person A and person B, or a collateral arrangement (for example, a collateral credit agreement) relating to such a contract,—

(i) varying the contract or the arrangement in the manner specified in the order; and

(ii) if the court or the Disputes Tribunal thinks fit, declaring the varied contract or arrangement to have had effect on and after a date specified in the order, which may be before the date on which the order is made:

(d) if an order described in paragraph (c) is made in respect of a contract that is associated with a collateral credit agreement, and if that order results in person A no longer having property in the goods that are the subject of the contract, an order vesting in person B the rights and obligations of person A under the collateral credit agreement:

(e) an order directing person B to refund money or return property to person A:

(f) an order directing person B to pay to person A the amount of the loss or damage:

(g) an order directing person B, at person B’s own expense, to repair, or to provide parts for, goods that have been supplied by person B to person A:

(h) an order directing person B, at person B’s own expense, to supply specified goods or services to person A.”

[59] Ms Whittington seeks to recover $3,000, which she says is the loss she has suffered as a result of being misled about the vehicle. Under s 43(1) of the FTA, I can only make an award to Ms Whittington if I am satisfied that she has suffered, or is likely to suffer, loss or damage resulting from a breach of the FTA by Bayswater. In that regard, I cannot take account of Bayswater’s failure to disclose the full service and repair history of the vehicle, or of the alleged faults with the vehicle discussed earlier in this decision, because that conduct and those alleged faults do not breach the FTA. Instead, I can only consider whether Bayswater’s misrepresentation of the number of previous owners has caused loss.
[60] Ms Whittington says she has suffered loss as the vehicle is worth less because of the number of previous owners, and that she would have paid less for the vehicle if she had known of the true number of owners.
[61] Hugh Saunders, the Manager at Bayswater, says that the vehicle had the same value, irrespective of the number of previous owners. Mr Saunders said that, in his experience, the value of a vehicle is not affected by the number of previous owners it has had. Mr Gregory also advises that, in his experience, the value of a vehicle is not affected by the number of previous owners. Instead, the value is determined by its age, mileage and condition.
[62] This Tribunal has previously considered whether a vehicle is worth less because of a misrepresentation about the number of previous owners. In Kumar v Auckland Auto Collection Ltd,[6] the trader represented that the vehicle had one previous owner, when it had three previous private owners and three previous dealership owners (who each owned the vehicle for a brief period before on-selling it). The Tribunal found that although the trader misrepresented the number of previous owners, the purchaser had not suffered loss because the vehicle was not worth less because of the number of previous owners.
[63] The circumstances of this case are very similar, and although Ms Whittington was clearly misled about the number of previous owners, I am not satisfied that the vehicle is worth less because of the number of previous owners. Accordingly, Ms Whittington is not entitled to a remedy under the FTA.

Conclusion

[64] The vehicle had a missing parcel tray, which breached the acceptable quality guarantee in s 6 of the CGA. Ms Whittington has not proven that the other alleged faults breached the acceptable quality guarantee.
[65] Ms Whittington has proven that Bayswater has engaged in misleading conduct that breached s 9 of the FTA. Bayswater represented that the vehicle had one previous owner when it had two previous private owners and had twice been registered in Bayswater’s name. Bayswater has not engaged in misleading conduct by failing to disclose the full repair and service history of the vehicle, or by misrepresenting the vehicle’s odometer reading at the time of sale.
[66] Although Ms Whittington was misled by Bayswater’s representation as to the number of previous owners, she has not suffered any recoverable loss as a result of that representation.

DATED at AUCKLAND this 14th day of May 2018

B.R. Carter
Adjudicator

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[1] Red Eagle Corporation v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].

[2] Smith v Hughes (1871) LR 6 QB 597 (QB); March Construction v Christchurch City Council (1995) 5 NZBLC 103,878 (HC).

[3] Des Forges v Wright [1996] 2 NZLR 758 (HC)

[4] At 764.

[5] Hieber v Barfoot & Thompson (1996) 5 NZBLC 104,179 (HC); Tuiara v Frost & Sutcliffe [2003] 2 NZLR 833 (HC) at [91]; and Guthrie v Taylor Parris Group Cossey Ltd (2002) 10 TCLR 367 at [21] and [32].

[6] Kumar v Auckland Auto Collection Ltd [2017] MVDT 186 (22 November 2017).