Salter v Advanced Import Group Ltd - Reference No. 436/2019 MVD [2020] NZMVDT 66 (2 June 2020)

Last Updated: 20 July 2020

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 436/2019 [2020] NZMVDT 066 BETWEEN DUNCAN SALTER Purchaser AND ADVANCED IMPORT GROUP LTD Trader

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 13 February 2020

APPEARANCES

D Salter, Purchaser (by audio-visual link)

No appearance for the Trader

DATE OF DECISION 2 June 2020

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DECISION OF THE TRIBUNAL

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Duncan Salter’s application is dismissed

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REASONS

Introduction

[1] Duncan Salter filed a claim against Advanced Import Group Ltd on 3 December 2019 alleging that the 2008 Audi A4 he purchased form the company in June 2018 was faulty and did not meet warrant of fitness specifications.
[2] The Tribunal has since been notified by Sands & Associates Ltd (the accountants for Advanced Import Group Ltd) that the company is now in liquidation. I have checked the Companies Office register, which confirms the company went into liquidation on 20 December 2019.
[3] The fact that Advanced Import Group Ltd is in liquidation is significant. Under s 248(1)(c)(i) of the Companies Act 1993, a person can only continue legal proceedings against a company in liquidation with the consent of the High Court or the liquidators. Because these are continuing legal proceedings and because Advanced Import Group Ltd is in liquidation, the proceedings cannot continue unless the liquidators agree or there is an order from the High Court.
[4] Accordingly, the Tribunal issued a Minute on 7 January 2020 asking Mr Salter to confirm whether he would seek the liquidator’s consent or apply to the High Court to continue the proceedings. Mr Salter was advised that if he sought the liquidators’ consent or a High Court order, the Tribunal would await the outcome of any application before determining this matter. He was also advised that if he chose not to seek the liquidators’ consent or a High Court order, his claim would be discontinued.
[5] Mr Salter has not applied obtained the liquidators’ consent or applied to the High Court for an order to continue these proceedings.

Determination on the papers

[6] Under cl 9A(1) of Sch 1 to the Motor Vehicle Sales Act 2003, 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 21 May 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 28 May 2020. No written submissions have been filed.
[8] Because the proceedings cannot continue because Advanced Import Group is in liquidation, I consider it appropriate to determine this matter on the papers by dismissing Mr Salter’s application. Mr Salter will undoubtedly be aggrieved by this outcome, but I have no other choice in the circumstances.

DATED at AUCKLAND this 2nd day of June 2020

B.R. Carter
Adjudicator