Prasad v Wilkinson t/a WS Trading - Reference No. MVD 182/2022 [2022] NZMVDT 127 (30 June 2022)

Last Updated: 28 July 2022

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL

I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 182/2022
[2022] NZMVDT 127

BETWEEN SHOVNA PRASAD

Purchaser

AND JAMES WILKINSON TA WS TRADING

Trader

MEMBERS OF TRIBUNAL

Mr D M Jackson, Barrister, Adjudicator
Mr S D Gregory, Assessor

HEARING at Christchurch on 23 June 2022

APPEARANCES

Mr S Prasad, mother of the purchaser
Master A (a minor), purchaser
Mr J Wilkinson, trader

DATE OF DECISION 30 June 2022

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ORDER OF THE TRIBUNAL

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1. The Tribunal lacks jurisdiction to hear and determine the Purchaser’s claim.
2. Accordingly, the purchaser’s claim is transferred to the District Court at Hamilton.

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[1] During October 2021, Master A negotiated and agreed to the purchase of a 1999 Mazda RX-7 from the trader for $40,000.00. The vehicle was purchased sight unseen via text messaging or similar and there is no written sale agreement.
[2] The vehicle was imported from Japan and is uncertified, unregistered and unroadworthy. It would appear from the material filed in the Tribunal, and I make no findings as to what is as yet untested evidence, that the trader marketed the vehicle as a “project car” and made it clear to the purchaser that the vehicle would need a lot of work before becoming roadworthy.
[3] Master A is a minor. He was fifteen years old at the time of purchase. I have determined not to name him or cite his date of birth in this order. He has entered into a contract to purchase a vehicle he has seen online and negotiated the purchase of via text or other messaging. There is no written agreement between the parties. He did not inspect the vehicle prior to its purchase. It would appear his parents were not involved in the purchase negotiations, even if his father lent him the money (the not inconsiderable sum of $40,000.00). The trader knew that Master A’s father was funding the purchase and may have been aware that he was dealing with a minor.
[4] Again, while I make no findings of fact having heard no evidence, I consider the circumstances of this contract make an investigation into the fairness and reasonableness of the contract something which a Court or Tribunal hearing this dispute may wish to explore under s 87 of the Contract and Commercial Law Act 2017 (“the CCLA”). That is entirely a matter for the Court or, alternatively, for the parties to raise by their pleadings.
[5] However, having identified this a potential issue for resolution in this dispute, I can take that inquiry no further because this Tribunal’s jurisdiction is limited and does not extend to resolving questions arising from the contractual capacity of minors.

[6] Rather, the Tribunal has jurisdiction under s 89 of the Motor Vehicle Sales Act 2003 (“MVSA”) to inquire into and determine any application or claim under the Fair-Trading Act 1986, the Consumer Guarantees Act 1993 and subpart 3 of Part 2 or Part 3 of the CCLA (being contractual remedies and sale of goods claims generally).
[7] The Tribunal does not have jurisdiction to hear contract-based claims and in particular does not have jurisdiction (should the contract be determined to be unfair and unreasonable as against Master A) to cancel a contract under subpart 6 of Part 2 of the CCLA. The Tribunal does have power under s 93(1) of the MVSA, where it has no jurisdiction, to order proceedings be transferred to a court or other body that has jurisdiction to determine the matter.
[8] As explained to the parties at the hearing and for the reasons set out above the Tribunal regrets that it does not have jurisdiction to hear the purchaser’s claim. I determine so because the circumstances of the contract are central to any consideration of liability or otherwise on the part of the trader and as to remedy. It would be wrong therefore for this Tribunal to determine those issues that may fall within its jurisdiction and ignore the contractual capacity component of the dispute which is writ large on the face of the material filed.
[9] Given the amount involved I cannot transfer the purchaser’s claim to the Disputes Tribunal. However, I can ensure that he avoids having to pay the filing fee in the District Court by ordering that the proceeding is transferred there from this Tribunal for want of jurisdiction.
[10] Further, having reviewed the material filed in this Tribunal I direct that the proceeding is transferred to the District Court at Hamilton. While ultimately the issue of venue is a matter for the Court, I note that although the trader is based in Nelson there is an argument to be made for the purchaser that a material part of the cause of action arose in Hamilton where he resides (namely negotiation, payment and receipt of delivery).

Orders

[11] The purchaser’s claim against the trader is transferred to the District Court at Hamilton under s 93(1) of the Motor Vehicle Sales Act 2003.

DATED at Christchurch this 30th day of June 2022

D M Jackson
Adjudicator