Balloch v Baker t/a Take It Motors - Reference No. MVD 149/2019 [2019] NZMVDT 157 (23 July 2019)

Last Updated: 24 August 2019

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 149/2019 [2019] NZMVDT 157 BETWEEN ZARA BALLOCH Purchaser AND CALLUM EDWARD BAKER T/A TAKE IT MOTORS Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 18 July 2019

APPEARANCES

Z Balloch, Purchaser L Stockman and L Marshall, Witness for the Purchaser

No appearance for the Trader

DATE OF DECISION 23 July 2019

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DECISION OF THE TRIBUNAL

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1. Callum Edward Baker shall, within 10 working days of the date of this decision, pay:
   • (a) $4,849 to Zara Balloch; and
   • (b) costs of $650 to the Crown (payable to Ministry of Justice, Tribunals Unit, Level 1, Chorus House, 41 Federal Street, Auckland 1010).

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REASONS

Introduction

[1] On 1 March 2019, Zara Balloch agreed to purchase a 2007 Mazda Axela for $4,799 from Callum Edward Baker, trading as Take It Motors. Despite taking Ms Balloch’s money, Callum Baker has failed to supply the vehicle. Ms Balloch has now applied to the Tribunal, seeking a refund of the purchase price.
[2] Despite receiving a Notice of Hearing setting out the time and place of the hearing, Callum Baker failed to attend. The hearing proceeded without Callum Baker.

The Issues

[3] Against this background, the issues requiring consideration are:

• (a) Has Callum Baker failed to deliver the vehicle to Ms Balloch within a reasonable time as required by s 5A of the Consumer Guarantees Act 1993 (the Act)?
• (b) If not, is the failure to deliver a failure of a substantial character?
• (c) What remedy is Ms Balloch entitled to under the Act?

Has Callum Baker failed to deliver the vehicle within a reasonable time?

[4] Section 5A of the Act provides that a supplier must deliver goods within a reasonable time. Specifically, s 5A of the Act states:

5A Guarantee as to delivery

(1) Where a supplier is responsible for delivering, or for arranging for the delivery of, goods to a consumer there is a guarantee that the goods will be received by the consumer—

(a) at a time, or within a period, agreed between the supplier and the consumer; or

(b) if no time or period has been agreed, within a reasonable time.

(2) Where the delivery of the goods fails to comply with the guarantee under this section, Part 2 gives the consumer a right of redress against the supplier and, in that case, the consumer may,—

(a) if the failure is of a substantial character, reject the goods under section 18(3); and

(b) in any case, obtain damages under section 18(4) (other than damages relating to the remedies set out in section 18(2)), whether or not the consumer also rejects the goods.

(3) For the purposes of this section, the reference in section 20(1)(b) to an agent of the supplier must be treated as including any carrier or other person who undertakes to deliver the goods on behalf of the supplier.

(4) A consumer’s rights of redress under Part 2 in relation to the guarantee under this section are limited to those specified in subsection (2).

[5] The issues I must determine in deciding whether this guarantee has been breached are:

• (a) Was Callum Baker responsible for delivering, or for arranging the delivery of, the vehicle?
  • (b) Has the vehicle been delivered within any agreed time period, or if no time period was agreed, within a reasonable time?

Was Callum Baker responsible for the delivery of the vehicles?

[6] I am satisfied that Ms Balloch paid $4,799 to Callum Baker to purchase the vehicle. The evidence provided by Ms Balloch shows that this money was paid into the bank account given to Ms Balloch by Callum Baker on 1 March 2019.
[7] I am also satisfied that a condition of the agreement between Ms Balloch and Callum Baker was that Callum Baker would deliver the vehicle to Ms Balloch. The vehicle was in Callum Baker’s possession and arrangements needed to be made to have the vehicle delivered to Ms Balloch.

Has the vehicle been delivered within required timeframes?

[8] The parties did not agree as to precisely when the vehicle should be delivered to Ms Balloch. Accordingly, under s 5A(1)(b) of the Act, Callum Baker was required to deliver the vehicle to Ms Balloch within a reasonable time.
[9] Callum Baker has failed to do. It is now July 2019, and despite receiving the full purchase price from Ms Balloch on 1 March 2019, Callum Baker has not delivered the vehicle to Ms Balloch. I am therefore satisfied that the vehicle has not been delivered within a reasonable time and that Callum Baker has breached the guarantee in s 5A(1) of the Act.

Is the failure to deliver a failure of a substantial character?

[10] Under s 18(3) of the Act, Ms Balloch may reject the vehicle if the failure to deliver the vehicle amounts to a failure of a substantial character. A failure of a substantial character is defined in s 21 of the Act:

21. 21 Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b) the goods depart in 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose; or

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.

[11] Section 21(a) of the Act applies to this case and I am unreservedly satisfied that Callum Baker’s failure to deliver the vehicle is a failure of a substantial character. A reasonable consumer would not have acquired the vehicle if they had known that, after receiving full payment for the vehicle, Callum Baker would then fail to deliver the vehicle.

What remedy is Ms Balloch entitled to under the Act?

[12] The remedies relevant to this claim are set out in s 18 of the Act, 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.

[13] Ms Balloch may reject the vehicle under s 18(3)(a) of the Act, because the failure to deliver the vehicle is a failure of a substantial character. Under s 23(1)(a) of the Act, Ms Balloch is therefore entitled to recover all amounts paid in respect of the vehicle, being the purchase price of $4,799.

Costs

[14] Under cl 14(1)(b) of Sch 1 to the Motor Vehicle Sales Act 2003 (the MVSA), the Tribunal may award costs against a party where, after receiving notice of the hearing, that party fails to attend without reasonable cause.
[15] I am satisfied that Callum Baker, after receiving notice of the hearing, failed to attend without reasonable cause. Indeed, Callum Baker provided no excuse for non-attendance. Accordingly, under cl 14(2)(b) of Sch 1 to the MVSA, Ms Balloch is entitled to recover $50, being the filing fee for this application. Further, under cl 14(2)(a)(i) of Sch 1 to the MVSA, I also order that Callum Baker pay $650, being the reasonable costs of the Tribunal hearing.

DATED at AUCKLAND this 23rd day of July 2019

B.R. Carter
Adjudicator