Vester v North Shore SsangYong LDV Ltd - Reference No. MVD 029/2022 [2022] NZMVDT 101 (2 June 2022)

Last Updated: 23 July 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 029/2022 [2022] NZMVDT 101 BETWEEN OLIVER VESTER Applicant AND NORTH SHORE SSANGYONG LDV LTD Respondent

MEMBERS OF TRIBUNAL

D Watson, Barrister – Adjudicator

S Haynes, Assessor

HEARING at Auckland on 7 April 2022 and 12 May 2022 (by audio-visual link)

APPEARANCES

Oliver Vester, Applicant Wendy Mackie, witness for the Applicant

Evan Pevreal, Director of the Respondent Sandra Moore, witness for the Respondent Dennis Millerchin, witness for the respondent

DATE OF DECISION 2 June 2022

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DECISION OF THE TRIBUNAL

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Mr Vester’s claim is dismissed.

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REASONS

Introduction

[1] On 8 October 2021, Mr Oliver Vester purchased a brand-new LDV D90 SsangYong petrol fuelled motor vehicle from North Shore SsangYong LDV Ltd (“North Shore SsangYong”). The purchase price was $47,880.00, which included on-road costs, installation of a towbar, and application of Guard X.
[2] Mr Vester alleges that he and his partner, Ms Mackie, were misled by North Shore SsangYong into believing the vehicle would come with a sunroof, full leather seats and a gear shaft that moved simply by tapping it. The vehicle did not come with those features, therefore, he claims he has the right to reject the vehicle.
[3] Mr Vester also alleges that various communications from North Shore SsangYong towards him and Ms Mackie amount to “coercion” pursuant to s 23 of the Fair Trading Act 1986 (the FTA).
[4] North Shore SsangYong denies that it misled either Mr Vester or Ms Mackie. It denies it engaged in conduct that could be regarded as coercion for the purposes of s 23 of the FTA.

Relevant background

[5] On 2 October 2021, Mr Vester and Ms Mackie visited the premises of North Shore SsangYong for the purposes of viewing a new luxury diesel LDV D90 SsangYong vehicle. They dealt with Mr Dennis Millerchin, a sales person employed by North Shore SsangYong. Before visiting the premises, they had already been in contact with North Shore SsangYong and asked to see the luxury diesel model.
[6] According to North Shore SsangYong, the vehicle came in only two models, the luxury diesel model and the petrol model. The luxury diesel model is fitted with a sunroof and full leather seating. Both the luxury diesel model and the petrol model have a tiptronic gearbox, which is essentially an automatic gearbox with the ability to change gears manually.
[7] Mr Vester therefore took the luxury diesel model for a test drive. Ms Mackie did not join him. As this was the luxury diesel model, it had a sunroof and full leather seating. According to Mr Vester, the vehicle also had a gear shaft that appeared to move merely by tapping it.
[8] Having a gear shaft that was easy to manoeuvre was an important feature because Ms Mackie suffers from arthritis in her hands and fingers, meaning it is hard for her to operate a gear shaft on a vehicle.
[9] Having a sunroof was also an important feature for Ms Mackie. Ms Mackie suffers from fibromyalgia. This is a condition which causes her to be overly sensitive to the effects of direct sunlight. Her evidence was that having a sunroof means that she can enjoy the benefits of direct sunlight on her body, filtered through the sunroof, but without the sun directed at her face.

Discussions about price and the differences between the two models

[10] After Mr Vester took the vehicle for a test drive, he and Ms Mackie had a discussion with Mr Millerchin about the price and specifications of both the luxury diesel model and the petrol model. Mr Vester wanted to fit a towbar and Guard X to the vehicle. Guard X is a protective coating on the paintwork.
[11] With these extra items included, Mr Millerchin told Mr Vester the luxury diesel model would be about $10,000 more than the petrol model. After this discussion about price, Mr Vester expressed interest in pursuing the petrol model.
[12] The parties were in dispute about a number of aspects of this discussion. They had different recollections about what was said by Mr Millerchin regarding the specifications of the two models. They also had differing recollections about whether or not Ms Mackie and Mr Vester were shown a brochure for the petrol model and whether they were physically shown the petrol model of the vehicle at the North Shore SsangYong premises.
[13] According to Mr Vester and Ms Mackie, Mr Vester specifically asked Mr Millerchin what were the differences between the two vehicles, and in particular, whether there any difference in the torque. Mr Vester’s evidence was that Mr Millerchin told him the towing capacity and torque were a little less in the petrol model, but that there was no other difference between the petrol and diesel models (other than the engine). Mr Vester and Ms Mackie were adamant on this point.
[14] Based on this discussion, Mr Vester formed the view that the vehicle would come with full leather seating, a sunroof and a gear shaft that moved merely by tapping it. This was because he says he was told the only differences between the two models were the torque and the towing capacity (other than the engine).
[15] Mr Millerchin tells a very different story. He gave evidence that he provided a brochure to Mr Vester and Ms Mackie showing the petrol model and its specifications. He said he expressly told Mr Vester and Ms Mackie that the petrol model would not have full leather seating (only a leather composite material), that it would not have a sunroof and that the alloy wheels were different. He also said that there was a petrol model on the car yard that day which he then showed them both, physically pointing out these differences. He was unaware what Mr Vester was referring to when he talked about the gear shaft moving easily merely by tapping it and explained that the gear shaft was exactly the same in both models.
[16] Mr Millerchin’s evidence was that after being shown the petrol model of the vehicle, Mr Vester said that he wished to proceed to buy the petrol model.

The offer to purchase and the agreement for sale and purchase

[17] Mr Millerchin prepared an offer to purchase which recorded the price of the vehicle including the extras Mr Vester wanted (the towbar and the Guard X - $47,880.00 in total), less the trade in price being $3,500.00, and a deposit payable of $10,000. This offer to purchase was signed that day.
[18] Mr Vester returned to the North Shore SsangYong premises on 8 October 2021 for the purposes of signing the agreement for sale and purchase of the vehicle (“the agreement”) and paying the deposit of $10,000.00.
[19] After the agreement was signed, North Shore SsangYong then went ahead and placed an order for the vehicle.

The finance condition

[20] The agreement was expressed to be subject to finance. The finance required was $34,380.00. The copy of the agreement that was initially provided by Mr Vester was faint in places although not impossible for the Tribunal to read. Clear copies of page 1 and 2 of the agreement that was actually signed by the parties were provided by North Shore SsangYong in the course of the first and second hearings.[1]
[21] On the first page of the agreement the following words appear: “Special conditions (refer terms and conditions 9): Subject to Finance”.
[22] On the second page of the agreement, condition 9 reads:

“SPECIAL CONDITIONS: This agreement shall be conditional only on any conditions specifically endorsed in the face of this agreement as a Special Condition. On the fulfilment of the Special Condition, and in the absence of any Special Conditions this agreement is unconditional.”

[23] According to the agreement, once the finance condition was satisfied, the agreement would then be unconditional, meaning that both parties would be bound to proceed with it. It was only in the event that the finance condition was not satisfied that the agreement would not proceed.
[24] After the agreement was signed, North Shore SsangYong proceeded to facilitate the financing of the vehicle through Oxford Finance.
[25] On 11 October 2021, Mr Vester was contacted by Oxford Finance and advised that finance would be approved, subject to two references being provided. He was also informed that the interest rate would be 12.95%. Mr Vester was not happy with such a high interest rate or the need to provide references. He said he told the Oxford Finance representative that he wanted to cancel the finance application.
[26] After speaking with Oxford Finance, Mr Vester said that he was immediately contacted by Mr Millerchin, who explained that the requirement for references was just a procedural step. Mr Millerchin personally offered to act as a referee. He suggested that Ms Mackie could be the other referee. Regarding the interest rate, he said: “leave it with me, I’ll see what I can do.”
[27] Mr Vester’s evidence was that Mr Millerchin later called him back and said that the interest rate would be lowered to 10.95%. Mr Vester said that he would accept that interest rate and then emailed Oxford Finance to confirm he accepted its terms for the financing. According to Mr Vester’s evidence, that confirmation was provided on 11 October 2021.
[28] Although Mr Vester’s evidence was that this discussion with Mr Millerchin about the interest rate being lowered was on 11 October 2021, according to Mr Millerchin, this conversation was on 19 October 2021 and was with Ms Mackie.
[29] According to Mr Vester, by 18 October 2021, he and Ms Mackie felt fed up with the lack of progress and decided they did not want to go ahead with the purchase. Their evidence was that they were feeling increasingly stressed and “hounded”.

The alleged attempt to cancel the agreement

[30] On 18 October 2021, Mr Vester asked Ms Mackie to contact Mr Millerchin to let him know he did not want to proceed with the purchase. In error, Ms Mackie called the wrong phone number on Mr Millerchin’s business card and instead reached the North Shore SsangYong General Manager, Mr Pevreal. This was on 18 October 2021, a Sunday.
[31] Ms Mackie’s evidence was that after she said that the couple did not want to proceed, she was told by Mr Pevreal that they would have to, because the vehicle had already been registered in Mr Vester’s name, the towbar installed in the car and the Guard X applied. Since it was a Sunday, he suggested that she should contact Mr Millerchin also.
[32] After speaking with Mr Pevreal, Ms Mackie’s evidence was that she immediately contacted Mr Millerchin and had the same conversation with him. Her evidence was that Mr Millerchin said it was now too late to back out of the agreement, for the same reasons expressed by Mr Pevreal.
[33] Mr Pevreal and Mr Millerchin both recalled telephone calls from Ms Mackie but both had a different recollection from Ms Mackie as to what was said. Their recollection was that Ms Mackie was calling to complain about the interest rate, not calling to advise that Mr Vester did not want to proceed with the purchase anymore.
[34] Mr Millerchin’s evidence was that this was the conversation where he said, of the interest rate, “leave it with me I will see what I can do”. He said in his evidence that he called Mr Vester back the next day (19 October 2021) to say that the interest rate could be lowered to 10.95%. Mr Vester said he was happy with the lower interest rate and confirmed it with Oxford Finance.
[35] Mr Vester and Ms Mackie gave evidence that at this time they no longer wished to purchase the vehicle but as a result of these conversations with Mr Millerchin and Mr Pevreal they were left feeling that they had no choice but to do so. They felt very pressured and “hounded”, according to written submissions received after the hearing. Mr Vester proceeded to sign the loan agreement and made an appointment to drop off his trade-in vehicle and uplift his new vehicle on 24 October 2021.

Collection of the vehicle

[36] Mr Vester arrived at the North Shore SsangYong premises on 24 October 2021 to uplift his new vehicle and drop off his trade-in. Ms Mackie did not come because she was feeling very angry and upset over being forced into going through with a purchase that she did not want.
[37] According to Mr Vester, the handover was only about 10 minutes. It was a rainy day and Mr Vester was keen to get away. Mr Vester did not immediately notice the lack of a sunroof, the quality of the interior of the vehicle or any differences in the gear shaft, despite these three aspects being of importance to him.
[38] According to Mr Millerchin, although it was raining, he had arranged for the vehicle to be brought in under the awning and for a space to be made available so that Mr Vester could drive his trade-in under the awning and would not get wet. His evidence was that the handover took more like around 20 minutes. He said Mr Vester was keen to get away, seemed very disinterested in the vehicle and just wanted to get out of there.

Mr Vester’s concerns about the vehicle

[39] It was not until the next day that Mr Vester noticed that there was no sunroof. He called Mr Millerchin straight away. Mr Millerchin reminded him that the petrol model did not come with a sunroof. There was then a discussion about whether or not a sunroof could be fitted.
[40] Later that day, Mr Vester noticed that the interior of the car was not full leather and that the gear shift needed to be pulled down and did not move merely by tapping it. His evidence was that he once again contacted Mr Millerchin to ask about these two additional items. Mr Millerchin said that he was not contacted a second time.
[41] On 27 October 2021, Ms Mackie sent an email to North Shore SsangYong, complaining about the lack of the sunroof and asking for resolution, whether by way of installation of a sunroof or alternatively return of the vehicle. Her email did not make any mention of an issue with the gear shaft or the lack of leather interior.
[42] When I inquired of Ms Mackie why her email only raised the question of the sunroof, when other issues had also been discovered, Ms Mackie’s answer was: “I didn’t want a new vehicle to start with”.
[43] The next event in the sequence was that Mr Pevreal contacted Mr Vester by telephone, denying that North Shore SsangYong was at fault and saying that Mr Millerchin had expressly told Mr Vester that the petrol model did not come equipped with a sunroof.
[44] Mr Pevreal followed this phone call up with an email to Ms Mackie on 27 October 2021 to advise as follows:

“I have called Oliver at 1240 pm today to discuss that it was explained by Dennis there were differences between the LDV D90 vehicle and the D90 petrol 4x4 on time of sale. Dennis mentioned to Oliver it has different alloys, no Rear tinted windows, no full leather, no sunroof on the petrol 4x4 D90. Both Diesel and Petrol 4x4 were at the dealership at time of sale. Oliver looked at the Burgundy D90 4x4 petrol on site. When talking to Oliver it was explained to him the differences on time of sale he hang up the phone on myself.”

[45] On 10 November 2021, a Community Advocate representing Mr Vester and Ms Mackie sent a letter to North Shore SsangYong alleging that there was a misrepresentation or misleading conduct at the time of purchase. She said there were significant variances and different versions of the LDV D90 vehicles that Mr Vester had not been informed about. She pointed out that the vehicle did not have a sunroof and a gearing lever the same as the one featured in the diesel demonstration model that Mr Vester had test driven. There was no mention in this letter of the absence of full leather seating.
[46] The advocate stated that Ms Mackie and Mr Vester felt coerced and rushed during the sale process.
[47] There was then a further letter from the advocate on 2 December 2021 rejecting the vehicle under the Consumer Guarantees Act 1993 (“the CGA”). The grounds stated were misleading conduct pursuant to the Fair Trading Act 1986 (“the FTA”). This letter also did not mention the lack of leather seating.
[48] According to written submissions filed by Mr Vester after the hearing, he was not aware of his legal rights relating to cancellation of the finance application and the purchase of the vehicle until speaking “extensively” with his Community Advocate. He submitted that the advocate assured him that he had rights as a consumer and a valid claim under the CGA and that this was what led him to formally rejecting and returning the vehicle to North Shore SsangYong. He submitted that it was as a result of the first hearing in this matter that he realised he had been wrongly advised and that rejection of the vehicle was not the correct course of action.

The issues

[49] Arising out of the foregoing, the following are the issues that I must determine:

a) Did North Shore SsangYong engage in misleading or deceptive conduct in breach of s 9 of the FTA?

b) Did North Shore SsangYong breach the guarantee that goods must comply with their description contained in s 9 of the CGA?

c) Did North Shore SsangYong engage in conduct that amounted to coercion in breach of s 23 of the FTA?

Issue 1: Did North Shore SsangYong engage in misleading or deceptive conduct in breach of s 9 of the FTA?

[50] Section 9 of the FTA provides:

9 Misleading and deceptive conduct generally

No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

[51] The test for establishing a breach of s 9 of the FTA was set out by the Supreme Court in Red Eagle Corporation Ltd v Ellis:[2]

The question to be answered in relation to s 9 ... is ... whether a reasonable person in the claimant’s situation – that is, with the characteristics known to the defendant or of which the defendant ought to have been aware – would likely have been misled or deceived. If so, a breach of s 9 has been established. It is not necessary under s 9 to prove that the defendant’s conduct actually misled or deceived the particular plaintiff or anyone else. If the conduct objectively had the capacity to mislead or deceive a hypothetical reasonable person, there has been a breach of s 9. If it is likely to do so, it has the capacity to do so. Of course the fact that someone was actually misled or deceived may well be enough to show that the requisite capacity existed.

[52] Mr Vester’s evidence was that Mr Millerchin told him the towing capacity and torque were a little less in the petrol model but that there was no other difference between the petrol and diesel models (other than the engine).
[53] His claim is essentially that, by telling him this, it was impliedly represented to him and Ms Mackie (and they formed the view that) that:

a) the vehicle would come equipped with a sunroof,

b) the vehicle would have full leather interior seating, and

c) the vehicle would come equipped with a gear shaft that easily moved by tapping it.

[54] A party bringing a claim in the Tribunal must prove their claim on the balance of probabilities – i.e., that it is more probable than not that their version of events took place. Where there are only bare oral assertions alleged, contemporaneous documents relating to those alleged oral assertions can often be helpful in assisting the Tribunal to determine whether or not an applicant has proven their claim.
[55] In this case, there is no written evidence corroborating what Mr Vester alleges. The only evidence is the parties’ recollection of events and their subsequent communications.
[56] Weighing up the evidence that was provided, I am not satisfied that Mr Millerchin told Mr Vester or Ms Mackie that the only differences between the petrol model and the diesel model (apart from the engine type) were the towing capacity and the torque. I find that neither said, nor did, anything to lead Ms Mackie or Mr Vester to reasonably believe or conclude that the vehicle would come with a sunroof, full leather seating and/or a gear shaft that moved merely by tapping it.
[57] Mr Millerchin’s evidence was that he has been in the industry of selling vehicles for 30 years. It is to be inferred that he has sufficient experience in selling vehicles to understand the fact that buyers need to be fully equipped with all relevant information relating to a purchase before committing to do so. There was no reason identified in the evidence for him to mislead Mr Vester or provide false information about such substantial matters regarding the vehicle’s specifications. This was only ever going to lead to Mr Vester being dissatisfied and later raising a dispute after receiving delivery of the vehicle.
[58] Conversely, I cannot rule out the possibility that what has really happened here is that Mr Vester and Ms Mackie have had a change of heart and have attempted to find a way to extract themselves from an agreement they did not want to proceed with anymore. In her evidence, Ms Mackie made the comment “I didn’t want a new vehicle to start with”. This comment suggested that she, at least, had never been keen on the purchase of the vehicle from the outset.
[59] There is also the situation with the gear shaft. I accept the evidence of North Shore SsangYong that the gear shaft in both models was exactly the same. There was absolutely no evidence of the existence of any other type of gear shaft supplied with these vehicles. Such an unsupported allegation, not raised in the emails initially but raised later, is the sort of allegation that might be made by a party looking to come up with reasons to get out of an agreement that they now regretted.
[60] I also consider that if a sunroof, leather interior and an easily moving gear shaft were important to a purchaser they would be things that would be checked at the point the vehicle was uplifted and their absence noted if they were not there. They would then be immediately pointed out to the trader. If not noticed immediately, they would be noticed upon the vehicle being driven away from the car yard premises. Even if it was raining, at the very least, it would be noticeable on driving the vehicle away that the leather interior and the sunroof were not there.
[61] Yet Mr Vester did not notice that these items were absent when he uplifted the vehicle and did not even notice them until the next day. Even then, it was only the absence of the sunroof that was noticed. The interior of the vehicle was not noticed until later, together with the issue with the gear shaft.
[62] This suggests to me that there has been a change of heart, by either Mr Vester or Ms Mackie, either overnight or brewing for a while which has then caused Mr Vester to act as he did the day after purchase.
[63] I also note that the subsequent communications make no reference initially to the absence of a leather interior or any issue with the gear shaft. Items like this, if important, would typically have been expressed straight away in written communications subsequently sent by a purchaser to a trader.
[64] I therefore find that there was no conduct or statement, implied or otherwise, made to Ms Mackie or Mr Vester by North Shore SsangYong that the vehicle would come equipped with a sunroof, full leather interior and a gear shaft that moved merely by tapping.
[65] I therefore find that North Shore SsangYong has not engaged in any misleading or deceptive conduct or conduct likely to mislead or deceive in breach of s 9 of the FTA.

Issue 2: Did North Shore SsangYong breach the guarantee that goods must comply with their description?

[66] Section 9 (1) of the CGA provides:

Subject to section 41, there is a guarantee that the goods correspond with the description.

[67] In Cooper v Ashley and Johnson Motors Ltd,[3] the Court considered, obiter, that the description of the numbers of owners of a vehicle, the stated odometer reading and the oral statement that the vehicle was a “good one”, were all elements of the vehicle’s description. In Mikitasov v Lee,[4] an appeal from the Disputes Tribunal, Judge Moran referred with approval to the Tribunal’s finding that the supply via Trade Me of an “Apple MacBook” that was not genuine amounted to a breach of the guarantee of correspondence with description.
[68] In assessing whether there has been a breach of the guarantee that goods must comply with their description, step one is determining what was the description of the vehicle when it was being marketed for sale by North Shore SsangYong, and step two is determining whether or not the goods corresponded with that description.

Step one: what was the description of the vehicle when it was being marketed for sale?

[69] It is the case of Mr Vester that the description of the vehicle when it was being marketed to him was that it would be equipped with exactly the same specifications as the luxury diesel vehicle he drove on 2 October 2021. In other words, it would come with full leather seating, sunroof and gear shaft that moved merely by tapping it. Mr Vester points to the alleged verbal statements that were made by Mr Millerchin on 2 October 2021 as forming part of the description of the vehicle that was being marketed to him.
[70] I have already found that there was no verbal or implied statement by Mr Millerchin to Mr Vester or Ms Mackie that there were no differences between the two models other than the engine, the torque and the towing capacity.
[71] I note that no documentary promotional material has been provided to me by Mr Vester that supports such a finding. The agreement itself contains no reference to any of these alleged descriptions.
[72] It follows that I find that the vehicle was not described as including full leather interior, sunroof and a gear shaft that moved easily just with a tap. The vehicle was described as an LDV D90 SsangYong petrol fuelled motor vehicle with tiptronic gear shaft.

Step two: did the vehicle comply with its description?

[73] The vehicle that Mr Vester was supplied with complied with the description of the vehicle.
[74] I find that there was therefore no breach of the guarantee of correspondence with description contained in s 9 of the CGA

Issue 3: Did North Shore SsangYong engage in conduct that amounted to coercion in breach of s 23 of the FTA?

[75] Section 23 of the FTA provides as follows:

No person shall use physical force or harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services.

[76] At the outset of the second hearing, I sought clarification from Mr Vester as to what aspect of this section he was relying on. He clarified that his case was that there was coercion applied to him. In written submissions he has described the conduct of North Shore SsangYong as “hounding” behaviour.
[77] In Hodges v Webb,[5] Paterson J stated that what was involved with the concept of “coercion” was something in the nature of negation of choice. In other words, there is coercion where conduct is undertaken by one person towards another such that a choice that might be otherwise available to that other party is negated or removed.
[78] It follows from this logic that the exercise, enforcement or insistence of a legal right by one party over another, cannot amount to coercion because the other party has no choice but to comply anyway.[6] There is no negation of choice involved because the party being asked to perform their agreement is legally required to perform. A party who insists that an agreement must be performed is not coercing another party for the purposes of s 23 of the FTA.
[79] Even if there was some doubt about whether the other party was legally required to comply or perform the agreement, another party’s insistence on its performance is still not coercion, it is simply that other party asserting their own legal view and interpretation of that agreement.
[80] Mr Vester and Ms Mackie allege that they were coerced into proceeding with the purchase of the vehicle, relying in particular on the telephone calls they had with Mr Pavreal and Mr Millerchin on 18 October 2021. They also rely on the overall conduct of Mr Millerchin.
[81] Once again, there is a factual dispute between the parties as to what was said verbally.
[82] I find that it is more probable than not that neither Mr Millerchin nor Mr Pevreal told Mr Vester or Ms Mackie on or around 18 October 2021 (or at any time) that Mr Vester had to proceed with the agreement now because the car registration had been put in his name, the towbar fitted, the Guard X applied, and the vehicle delivered to North Shore SsangYong.
[83] Even if I was to find that Mr Pevreal and Mr Millerchin did say these things to Mr Vester and Ms Mackie, I find that such remarks would not constitute conduct capable of amounting to “coercion” for the purposes of s 23 of the FTA. The agreement was expressly conditional on finance. According to Mr Vester, he confirmed the finance on 11 October 2021. It does not matter that he did not sign the actual loan agreement until 20 October 2021; he had by then already confirmed the finance and so the agreement was unconditional. Once he had confirmed the finance, the agreement was unconditional and he was bound to proceed with it. Pointing out another party’s legal obligations under an agreement - even if that did take place – is not “coercion” for the purposes of 23 of the FTA.
[84] Further, neither Mr Vester nor Ms Mackie struck me as the sort of consumers who were unsophisticated in business generally or unable to fully understand what Mr Vester had signed, indeed Mr Vester indicated that he ran his own small business. Both presented as very forthright individuals, able to express and assert themselves forcefully and articulately. Neither presented as easily susceptible to coercion of the type they have alleged.
[85] Mr Vester raised two additional points at the end of the hearing on 12 May 2022 in support of his submission that he had been coerced.
[86] The first was he argued that pursuant to the Credit Contracts and Consumer Finance Act 2003 (“the CCCFA”), before he uplifted the vehicle, he had the right to cancel the agreement and the loan, and therefore to return the vehicle.
[87] I understood Mr Vester to claim that Mr Pevreal and Mr Millerchin ought to have made him aware of these cancellation rights, but they did not do so. He claims that their insistence that he had to proceed with the agreement was improper pressure because under the CCCFA, he was entitled to cancel the agreement.
[88] Mr Vester is mistaken in his interpretation of the provisions of s 27 of the CCCFA when he submits that he had a right of cancellation of the agreement. Pursuant to the CCCFA, a borrower can cancel a loan within the specified cooling off period, but in the circumstances of this case, that cancellation right relates only to the loan, not the agreement. It is only where an agreement for sale and purchase of an item embodies and includes a loan agreement as well, that there is a right of cancellation of a sale agreement under the CCCFA.
[89] At no time did Mr Vester have a right to cancel the agreement pursuant to the CCCFA.
[90] A second point raised by Mr Vester relates to when the vehicle was registered in his name. This took place on 14 October 2021. Mr Vester was given an opportunity to make submissions on this point after the hearing and from those submissions and from what was said at the hearing I understand him to be submitting that:

a) when he was allegedly told on 18 October 2021 that the vehicle was already registered in his name, this was not accurate because pursuant to a retention of title provision under the agreement, title and possession of the vehicle remained with North Shore SsangYong until such time as the vehicle was paid for in full, and

b) the registration of the vehicle in Mr Vester’s name was premature and should not have been completed until the required finance was put in place.

[91] I have already found that Mr Vester was not told on 18 October 2021 that the vehicle had already been registered in his name and that he would have to proceed with the agreement. But even if he was told this and even if the vehicle was registered in Mr Vester’s name prior to the date possession was handed to him, that no doubt was simply a procedural step taken by North Shore SsangYong to ensure that the vehicle was ready to be uplifted by Mr Vester on the date he wanted to uplift it.
[92] Putting a vehicle under a buyer’s name ahead of time would be a reasonable practice of a trader simply getting a vehicle ready in time for delivery to a purchaser. The fact that North Shore SsangYong may have chosen to register the vehicle in his name early has no bearing at all on this case. Had Mr Vester not paid for the vehicle in full by the possession date then no doubt North Shore SsangYong would not have parted company with the vehicle at that time. Mr Vester could not in that instance insist on possession of the vehicle simply because it was registered in his name.
[93] I therefore find that nothing in the conduct of either Mr Pevreal or Mr Millerchin comes even close to the level of “coercion” required to demonstrate a breach of s 23 of the FTA. It follows that North Shore SsangYong has not breached s 23 of the FTA.
[94] The claim of Mr Vester is therefore dismissed.

DATED at AUCKLAND this 2nd day of June 2022

D A Watson
Adjudicator

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[1] I record that a different version of a standard form North Shore SsangYong agreement was provided initially by North Shore SsangYong but the agreement that I have found was actually executed by Mr Vester was the version that was originally submitted by him when his application was first filed, with a clearer and very legible copy later being provided by North Shore SsangYong.

[2] Red Eagle Corporation Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].

[3] [1997] DCR 170, (1996) 7 TCLR 407 (DC), at [180], [415].

[4] DC Kaikohe CIV-2010-027-331, 4 July 2011.

[5] [1920] 2 Ch 70 at 86.

[6] Watson v Waitemata Electric Power Board (1989) 4 NZCLC 65,344 (HC); CED Distributors Ltd v Schnellenberg HC Wellington CP154/88, 28 June 1988.