Bartlett v VH Limited t/a Hutt European Imports Reference No. MVD 289/2018 [2018] NZMVDT 264 (15 November 2018)

Last Updated: 18 December 2018

BEFORE THE MOTOR VEHICLE DISPUTES TRIBUNAL

[2018] NZMVDT 264
Reference No. MVD 289/2018

IN THE MATTER of the Motor Vehicle Sales Act 2003

AND

IN THE MATTER of a dispute

BETWEEN ANTHONY ONSLOW-BARTLETT

Purchaser

AND VH LIMITED T/A HUTT EUROPEAN IMPORTS

Trader

MEMBERS OF TRIBUNAL

J S McHerron, Barrister – Adjudicator

D Binding – Assessor

HEARING at Wellington on 15 October 2018

DATE OF DECISION 15 November 2018
APPEARANCES

A Onslow-Bartlett, Purchaser (by AVL)
M A Frickleton, Director of Trader

DECISION

Mr Onslow-Bartlett's application is dismissed.

REASONS

Introduction

[1] In November 2017, Anthony Onslow-Bartlett purchased a 2008 Porsche Cayman S from VH Ltd, trading as Hutt European (Hutt European). In May 2018, Mr Onslow-Bartlett decided that he did not want the vehicle anymore. He requested Hutt European to give him a full refund of the purchase price. Mr Onslow-Bartlett no longer wants the vehicle because the original hand books were not supplied with it. Mr Onslow-Bartlett is also dissatisfied about the information Hutt European supplied to him about the vehicle’s service history.
[2] Mr Onslow-Bartlett did not allege the vehicle has any faults and so the primary issue raised by this dispute is whether the vehicle failed to comply with its description.

Did the vehicle fail to comply with its description?

[3] Section 9 of the Consumer Guarantees Act 1993 (the Act) provides that "where goods are supplied by description to a consumer, there is a guarantee that the goods correspond with the description”. According to s 2 of the Act, “goods” includes vehicles.
[4] The vehicle was listed for sale on Trade Me. The listing set out the key details and features of the vehicle, then had a brief descriptive section which stated as follows:

Fantastic looking Cayman S Guards Red with Tan full leather.

Great specifications.

Turbo II wheels.

Rear parking sensors.

Comes with full book set and spare key.

We are car dealers in Lower Hutt.

[5] No other written statements were provided to Mr Onslow-Bartlett in relation to the vehicle or its history.
[6] Mr Onslow-Bartlett says he asked Hutt European what books and history documentation would be supplied with the vehicle before purchasing it. He alleges the trader’s director, Mr Frickleton, told him a full book set and service book pack would be supplied with the vehicle.
[7] When he collected the vehicle, Mr Onslow-Bartlett says Mr Frickleton told him he had sent its service book back to Singapore, from where it had been exported, for stamping.
[8] Mr Onslow-Bartlett confirmed at the hearing that he did not ask to see any of the relevant documents prior to purchasing the vehicle or when he collected it.
[9] Nearly four months after collecting the vehicle, Mr Onslow-Bartlett emailed Mr Frickleton to enquire whether he had received the Porsche Cayman handbooks and service book yet. Mr Frickleton promptly replied to say the “Porsche Cayman handbooks along with three other book sets are being sent later this week. I will continue to follow up”.
[10] However, nothing had arrived by the end of April 2018, so Mr Onslow-Bartlett emailed Mr Frickleton again on 28 April 2018 to express his concerns, stating:

... I was informed by Porsche specialists to only consider purchasing these models provided they had a handpack with service books stamped showing full service history.

...

I have spent $800,00 on detailing the interior which now looks excellent plus a professional polish with glaze to the exterior (a further $800,00) so now the vehicle looks excellent.

The Porsche experts and enthusiasts will confirm that a Porsche without the handpacks/service book stamps should be avoided as these vehicles are worth many thousands less.

I am now considering the option of taking this matter further and have the correspondence to resolve this issue to my satisfaction.

I wish to give you the opportunity to pay some compensation or purchase this vehicle back which has only traveled a further 1900kms and is now A1 condition, so we will need to discuss a these figures.

I would have brought this to your attention sooner however after meeting you in person at the purchase I felt your many promises to me receiving the service handpacks would be honored.

[11] Prior to the hearing, the Tribunal requested Mr Onslow-Bartlett to provide receipts for the $1,600 he claimed in the above email to have spent on the vehicle subsequent to purchasing it. However, Mr Onslow-Bartlett's response suggests his claim was exaggerated. He replied that he believed the value of the grooming work carried out on the vehicle was in the order of $1,600, however his out of pocket expenses only totaled $200 for relining a panel in the headlining cloth.
[12] Mr Onslow-Bartlett did not hear back from Mr Frickleton so emailed him again on 31 May 2018 to state that he was now requesting a full refund for the vehicle as Hutt European had “advertised and quoted that there was service history and a complete handbook/pack backing this up” but that, despite Mr Onslow-Bartlett's requests, Hutt European still had not provided him with this information.
[13] Mr Frickleton replied to say that he had a “complete set of Porsche Cayman books being sent to [him]" and that he expected delivery of them between 16 and 21 June 2018.
[14] In July 2018, Mr Frickleton forwarded Mr Onslow-Bartlett what he described as the “full book set”. This comprised a bundle of booklets including a driver’s manual, sound-system operation guide, Porsche service dealer directory, a booklet entitled “maintaining standards – Porsche approved body repairers”, and a getting started quick reference guide. Mr Frickleton also supplied copies of three invoices concerning servicing that had been carried out on the vehicle by Stuttgart Auto PTE Limited, the Porsche dealership in Singapore, in the vehicle's first three years between 2008–2010.
[15] Mr Frickleton also supplied three invoices for servicing of a Porsche Cayman between 2015 and 2017. He claimed these invoices related to Mr Onslow-Bartlett’s vehicle, but Mr Onslow-Bartlett was sceptical as the number plate was different and there were no other identifying details, such as the vehicle identification number (VIN). Mr Onslow-Bartlett was also concerned about the fact that the vehicle's servicing after 2010 was not carried out by a Porsche dealer/service centre.
[16] Mr Frickleton acknowledged that invoices for servicing between 2011 and 2014 were unaccounted for, so he was unable to say whether the vehicle was serviced in that period. Mr Frickleton submitted to the Tribunal that the number plate recorded on the invoices was the same as Mr Onslow-Bartlett's vehicle's number plate when it was in Singapore. However, apart from supplying a photograph of a Porsche with that number plate, Mr Frickleton did not provide any evidence to verify his submission.
[17] Mr Onslow-Bartlett said that by July 2018 he had still not received the original service book for the vehicle, even though Mr Frickleton had promised this had been sent away to be verified. He emailed Mr Frickleton on 19 July 2018 to say:

... had these been provided at point of sale and I was aware of the missing service log book I would have declined purchasing this particular car. Again I ask you to take the car back and refund me my money.

[18] It was not until the end of August 2018 that Mr Frickleton finally sent Mr Onslow-Bartlett the vehicle’s maintenance booklet, now stamped by the Porsche dealer in Singapore, to record the servicing that was carried out between 2008 and 2010.
[19] In his submissions to the Tribunal, Mr Onslow-Bartlett maintained his application to reject the vehicle and seek a full refund. He asserted, without supplying any supporting evidence, that the value of the vehicle without the missing information was approximately $33,000 to $35,000 rather than the $41,000 that he paid for it.
[20] Mr Frickleton submitted in response that Mr Onslow-Bartlett should not be entitled to reject the vehicle and that he did not consider he was obliged to pay him any compensation. He submitted that Mr Onslow-Bartlett had spent 30 to 40 minutes inspecting the vehicle prior to collecting it and that he could have decided at that point not to go ahead with the purchase in the absence of a full service history. Notwithstanding his knowledge of the lack of booklets and service history at the time of purchase, Mr Onslow-Bartlett nevertheless decided to go ahead with purchasing the vehicle.
[21] Mr Frickleton denies telling Mr Onslow-Bartlett that a Porsche dealer had done all the servicing of the vehicle. Rather, Mr Frickleton said he told Mr Onslow-Bartlett that the original Porsche service dealer had done the servicing for the first three years, but that the service booklet had no stamps. Mr Frickleton said Mr Onslow-Bartlett told him there was “no problem at all”, upon learning this information. All that Hutt Valley European advertised in the Trade Me listing was that the vehicle “comes with full book set”. Nothing in the advertising claimed it came with a “full service history”.
[22] Mr Frickleton said he has honoured what he said he would do. He said he would send the service booklet back to get stamps but never discussed with Mr Onslow-Bartlett who the vehicle was serviced by or even to what extent the vehicle had been serviced.
[23] The Tribunal’s Assessor, Mr Binding, observed that Mr Onslow-Bartlett had been happy to take the vehicle without seeing the details of its service history. Mr Binding considers there is no evidence that the vehicle is devalued as a result of its incomplete service history. He notes that the Trade Me listing for the vehicle does not specify that it had a “full service history”. Indeed, there was no evidence that the vehicle had been described in writing or orally as having a full service history. Indeed, Mr Binding considers this vehicle has a fairly good amount of information regarding its service history compared to similar imported vehicles of its age. For that reason, Mr Binding considers that Mr Onslow-Bartlett is better off than most people purchasing an imported vehicle of this age and mileage would be.
[24] I accept Mr Binding’s assessment of the relevant facts in this matter. I do not consider that this vehicle failed to correspond with its description as advertised in the Trade Me listing. I consider Mr Onslow-Bartlett should have insisted in obtaining detailed written information about the vehicle’s history if that was a matter he was particularly concerned about. As Mr Onslow-Bartlett has a background in the motor industry, he ought to have been aware of the need to be clear about the level of detail he wanted about a vehicle's history prior to purchasing the vehicle. The evidence does not show that Mr Onslow-Bartlett was misled about the vehicle's history. He could have decided not to complete the transaction once he knew that the full service history was not immediately available. No guarantees were provided that the complete history was obtainable or what the history might reveal about the vehicle. The fact that Mr Onslow-Bartlett proceeded to purchase the vehicle knowing the information was incomplete suggests he was prepared to accept a degree of risk in that regard.
[25] Accordingly, I reject Mr Onslow-Bartlett’s submission that the vehicle failed to correspond with its description in terms of s 9 of the Act. His claim must therefore be dismissed.
[26] Despite dismissing Mr Onslow-Bartlett’s claim I record two concerns that I have about Hutt European's sale of this vehicle to him:

• (a) No consumer information notice was supplied with the vehicle. Mr Frickleton explained that he had understood that because Mr Onslow-Bartlett was himself involved in the sale of motor vehicles that it was not necessary to supply such information. This is incorrect. Mr Frickleton should ensure that all future sales of used vehicles by Hutt European comply with the relevant legal requirements to provide a consumer information notice.[1]
• (b) The vehicle offer and sale agreement purports to exclude the application of the Act and it appears that Mr Onslow-Bartlett signed an exclusion clause stating the vehicle was being acquired for the purposes of his business. Again, there was no basis for excluding the Consumer Guarantees Act. Mr Onslow-Bartlett confirmed in the hearing that he was not purchasing the vehicle for business purposes and that he signed the exclusion clause mistakenly. This does not appear to have been an issue as I did not take Hutt European to have been denying the application of the Act to this sale at any point. However, Mr Frickleton again should take greater care in future to abide by the requirements of s 43 of the Act. These set out the prerequisites for excluding the application of the guarantees in the Act, which could not possibly have applied on the facts of the present case.
  

J S McHerron
Adjudicator

---

[1] Consumer Information Standards (Used Motor Vehicles) Regulations 2008, and Motor Vehicle Sales Act 2003, s 14.