Jones v 1StopCars.co.nz Ltd - Reference No. MVD 026/2021 [2021] NZMVDT 57 (23 April 2021)

Last Updated: 23 May 2021

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 026/2021 [2021] NZMVDT 57 BETWEEN TRISTAN JONES Applicant AND 1STOPCARS.CO.NZ LTD Respondent

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Gregory, Assessor

HEARING at Auckland on 29 March 2021

APPEARANCES

T Jones, Applicant K Jones, Witness for the Applicant

S Nazif, for the Respondent (by telephone) N Morrice, Witness for the Respondent (by telephone)

DATE OF DECISION 23 April 2021

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DECISION OF THE TRIBUNAL

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1. 1Stopcars.co.nz Ltd shall, within 10 working days of the date of this decision, pay $1,000 to Tristan Jones.

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REASONS

Introduction

[1] Tristan Jones wants to recover the $1,000 deposit he paid to 1Stopcars.co.nz Ltd to purchase a Toyota Hilux Surf in December 2020. After paying the deposit, Mr Jones decided not to purchase the vehicle. He then asked 1Stopcars.co.nz to refund the full amount of the deposit, but it has declined to do so. Instead, 1Stopcars.co.nz attempted to refund $550, but mistakenly paid that amount into a bank account that did not belong to Mr Jones.

The issues

[2] I consider that the evidence presented shows that this is a matter involving the repudiation and cancellation of a contract, to which the Contract and Commercial Law Act 2017 (the CCLA) applies. The issues requiring consideration are therefore:

• (a) Was there a contract between the parties?
• (b) Was Mr Jones entitled to cancel the contract?
• (c) Is Mr Jones entitled to a remedy under the CCLA?

Issue 1: Was there a contract between the parties?

[3] Although there was no written contract, the evidence – particularly text messages between Mr Jones and Nigel Morrice of 1Stopcars.co.nz – shows that an agreement existed between the parties under which 1Stopcars.co.nz agreed to sell a 1995 Toyota Hilux Surf to Mr Jones for $15,000, with Mr Jones paying a deposit of $1,000. That agreement was conditional upon Mr Jones being satisfied with the vehicle’s performance following a test drive.

Issue 2: Was Mr Jones entitled to cancel the contract?

[4] Mr Jones test drove the vehicle and was satisfied with it. However, he then sought to cancel the agreement to purchase the vehicle when his father declined to lend him money to purchase the vehicle and because of concerns with the vehicle’s condition. In particular, Mr Jones was concerned that the vehicle’s modified snorkel required low volume vehicle (LVV) certification – which it did not have – and that the vehicle had other defects like a hole in its exhaust.
[5] I am satisfied that Mr Jones was not entitled to cancel the agreement to purchase the vehicle. The agreement was only conditional on Mr Jones being satisfied with the vehicle’s performance during a test drive – which he was. The agreement was not conditional on Mr Jones obtaining finance and the vehicle was not in unacceptable condition. Mr Gregory, the Tribunal’s Assessor, advises that the vehicle did not require LVV certification for its modified snorkel and the evidence provided by Mr Jones regarding the vehicle’s alleged defects show that the vehicle was in a condition consistent with its age, with no obvious significant defects.

Issue 3: Is Mr Jones entitled to a remedy under the CCLA?

[6] Mr Jones’ refusal to purchase the vehicle despite having an agreement to do so amounts to a repudiation of the contract to purchase the vehicle. Mr Jones made it clear to 1Stopcars.co.nz that he did not intend to perform his obligation to purchase the vehicle and under s 36(1) of the CCLA, 1Stopcars.co.nz was therefore entitled to cancel the contract because of Mr Jones’s repudiation. It has done so by selling the vehicle to another purchaser for $15,999.
[7] The CCLA provides remedies where a contract has been repudiated and cancelled in this manner. Under s 43(1) of the CCLA, where a contract has been repudiated and cancelled, the Tribunal can grant relief where it is just and practicable to do so. That relief can include an order under s 43(3)(a) of the CCLA directing a party to pay a sum that the Tribunal thinks just.
[8] 1Stopcars.co.nz considers that it is entitled to retain $450 of the deposit to reflect that it took the vehicle off the market at Mr Jones’s request and it missed opportunities to sell the vehicle during that time. I agree that it did take the vehicle off the market at Mr Jones’s request and that it did miss opportunities to sell the vehicle at that time, but 1Stopcars.co.nz has suffered no loss as a result.
[9] 1Stopcars.co.nz agreed to sell the vehicle to Mr Jones for $15,000. It has since sold the vehicle for $999 more. 1Stopcars.co.nz cannot therefore justify retaining any part of the deposit by claiming that it has suffered any loss in its failed attempt to sell the vehicle to Mr Jones. Indeed, it has made an additional profit by selling the vehicle to another purchaser.
[10] 1Stopcars.co.nz also submitted that Mr Jones should be entitled to recover no more than $500, as he has previously agreed to accept that amount and that it paid $550 (which included a $50 ex gratia payment for inconvenience) to Mr Jones.
[11] The evidence provided by 1Stopcars.co.nz does not show that Mr Jones agreed to accept $500 in full and final settlement of his claim or that 1Stopcars.co.nz paid $550 to Mr Jones. Instead, it seems that it mistakenly paid that amount into a bank account that does not belong to Mr Jones, meaning he never received the money. Consequently, 1Stopcars.co.nz cannot claim that Mr Jones is now estopped from recovering more than $500.
[12] Against this background, and applying s 43(1) of the CCLA, I therefore consider it just and practicable that 1Stopcars.co.nz should refund the entire $1,000 deposit to Mr Jones.

DATED at AUCKLAND this 23rd day of April 2021

B.R. Carter
Adjudicator