Hafa v Prestige Park and Sell Ltd - Reference No. MVD 345/2019 [2020] NZMVDT 5 (28 January 2020)

Last Updated: 20 February 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 345/2019 [2019] NZMVDT 5 BETWEEN ALEX MAKESE HAFA Purchaser AND PRESTIGE PARK AND SELL LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

HEARING at Auckland on 21 November 2019

APPEARANCES

A M Hafa, Purchaser

No appearance for the Trader DATE OF DECISION 28 January 2020

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DECISION OF THE TRIBUNAL

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1. Alex Hafa’s application is dismissed.

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REASONS

[1] In March 2019, Alex Hafa purchased a 2008 Nissan Elgrand for $7,890 from Prestige Park and Sell Ltd. Mr Hafa says that the vehicle had pre-existing electrical faults that breach the acceptable quality guarantee in s 6 of the Consumer Guarantees Act 1993, which Prestige Park and Sell had failed to rectify.
[2] Prestige Park and Sell failed to attend the hearing scheduled for 21 November 2019. When checking to see whether the required documents had been served on Prestige Park and Sell, I discovered that the company had been removed from the Register of Companies (the Register) on 17 October 2019.
[3] The fact that Prestige Park and Sell has been removed from the Register is significant, because the company no longer exists, meaning the proceedings cannot continue, and the Tribunal cannot make any decision in this case unless the company is restored to the Register.
[4] Mr Hafa can restore the company to the Register by applying to the Registrar of Companies (the Registrar), under s 328(1)(b) of the Companies Act 1993, to have the company restored to the Register on the grounds that the company was party to legal proceedings at the time it was removed from the Register.
[5] In a Minute dated 21 November 2019, the Tribunal asked Mr Hafa to advise, by no later than 5 pm 28 November 2019, whether he intended to apply to the Registrar to have Prestige Park and Sell restored to the Register. Mr Hafa was advised that his claim would be discontinued if no such application was made. Tribunal staff have since contacted Mr Hafa, and he has advised that he has chosen not to make an application to the Registrar to have the company restored to the Register.

Determination on the papers

[6] Under cl 9A(1) of Sch 1 to the Motor Vehicle Sales Act 2003 (the MVSA), the Tribunal may determine a proceeding on the papers if the relevant adjudicator considers it appropriate. Before doing so, the Tribunal must give the parties a reasonable opportunity to comment on whether the matter should be dealt with in that manner.
[7] On 9 January 2020, I issued a Minute asking that the parties file written submissions as to whether it is appropriate to determine this matter on the papers, together with any supporting evidence, by no later than 5pm on 21 January 2020. No written submissions have been filed.
[8] Because the proceedings cannot continue unless Prestige Park and Sell has been restored to the Register, which Mr Hafa has chosen not to do, I consider it appropriate to determine this matter on the papers by dismissing Mr Hafa’s application.

DATED at AUCKLAND this 28th day of January 2020

B.R. Carter
Adjudicator