Kaur v Seven Seas Motors Ltd - Reference No. MVD 381/2021 [2022] NZMVDT 6 (9 February 2022)

Last Updated: 18 March 2022

APPLICATION FOR ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF RESPONDENT PURSUANT TO CLAUSE 13A, SCHEDULE 1, MOTOR VEHICLE SALES ACT 2003.

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL
I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA

MVD 381/2021
[2022] NZMVDT 006

BETWEEN GURPREET KAUR

AND SEVEN SEAS MOTORS LTD

MEMBERS OF TRIBUNAL

B R Carter, Barrister – Adjudicator

S Gregory, Assessor

DATE OF DECISION 9 February2022

___________________________________________________________________

DECISION OF THE TRIBUNAL

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[1] In a decision dated 9 February 2022, the Tribunal found that Seven Seas Motors Ltd engaged in misleading conduct in breach of s 9 of the Fair Trading Act 1986 because it misrepresented the odometer reading of the 2012 Jaguar XJ that it sold to Gurpreet Kaur for $29,500 in April 2021.
[2] The vehicle’s odometer reading was represented as being about 24,000 km at the time of sale, but evidence presented to the Tribunal showed that the odometer had been tampered with before the vehicle was imported into New Zealand and the true odometer reading was much higher.
[3] The Tribunal therefore declared the agreement to purchase the vehicle void and ordered that Ms Kaur’s rights and obligations under the loan she entered into to purchase the vehicle were to be transferred to Seven Seas Motors and that Seven Seas Motors was to pay $2,647.50 to Ms Kaur.
[4] Seven Seas Motors and Jamal Nasser, a director of the company, now seek name suppression with connection to those proceedings, claiming that:

• (a) they have been the target of unwanted and threatening correspondence from the applicant in a previous Tribunal claim, and are concerned that this correspondence will continue if their names are published in connection with this case;
• (b) publication of their names will adversely affect the reputation and business interests of Mr Nasser and Seven Seas Motors; and
• (c) publication of their names will cause harm to Mr Nasser personally.

The law

[5] The Tribunal has the power to suppress a party’s name and/or identifying details.[1] The Motor Vehicle Sales Act 2003 contains no guidance on how that power should be exercised, so I consider that the ordinary test for name suppression in civil proceedings applies.
[6] There is a presumption that the identity of the parties will be made public. The Tribunal’s hearings are ordinarily conducted in public and the Tribunal is required to ensure that its decisions are publicly available.[2] Additionally, the principle of open justice is fundamental to the common law system of civil justice and a Tribunal or court can only depart from this rule if it is really necessary to secure the proper administration of justice in proceedings before it. A party who seeks a suppression order must therefore show specific adverse consequences that are sufficient to justify an exception to the fundamental rule of open justice.[3]

The previous name suppression application

[7] This is the second time Seven Seas Motors and Mr Nasser have sought name suppression in connection with Tribunal proceedings.
[8] The first application related to a claim involving the sale of a 2011 Jaguar XJ motor vehicle to David Jaques.[4] In that case, the Tribunal found that the vehicle’s odometer had been tampered with before the vehicle was imported from Singapore and that Seven Seas Motors had engaged in misleading conduct in breach of s 9 of the Fair Trading Act by representing that the vehicle’s odometer reading was 17,000 km when the vehicle had travelled much further.
[9] There was some publicity following that decision, in particular an article on the stuff.co.nz website.[5] Seven Seas Motors and Mr Nasser claimed that this publicity unreasonably affected the company’s business operations and Mr Nasser’s personal life. They therefore applied to the Tribunal in October 2021 seeking name suppression.
[10] In support of that application, Mr Nasser submitted that he has been selling motor vehicles for 12 years and the publicity from the Tribunal’s decision, particularly the Stuff website article, have been “very harmful on me and my business”. Mr Nasser submitted:

• (a) He has lost several customers and sales due to publicity surrounding this case. Mr Nasser provided screen shots of text message conversations, which appear to show that he has lost customers and sales as a result of the adverse publicity arising from this case.
• (b) Mr Jaques (the applicant in that case) had posted comments on Seven Seas Motors’ Trade Me listings containing a link to the Stuff website article.
• (c) Mr Nasser has stopped purchasing vehicles from Singapore because suppliers have refused to deal with him. Mr Nasser provided screenshots of text message conversations with two suppliers of vehicles from Singapore, in which both have declined to supply vehicles to him because of the Stuff website article.
• (d) A mechanic previously used by Seven Seas Motors and Mr Nasser has refused to service vehicles for Mr Nasser due to the publicity from that case.
• (e) The stuff.co.nz website initially contained an inaccurate account of the outcome of this case by stating that Mr Nasser and/or Seven Seas Motors had been “fined” $10,000 by the Tribunal. That inaccuracy was corrected after Mr Nasser contacted the website.

[11] At that time, Mr Nasser said that selling motor vehicles has been his main source of income for 12 years and he, like others, has been affected by the economic consequences of the COVID-19 pandemic. Mr Nasser said that, due to the impact on his personal life and his business, he had taken steps to close Seven Seas Motors down, including by approaching his accountant, Inland Revenue Department and the Companies Office, although the business had not yet closed as he still has vehicles to sell.
[12] Mr Nasser and Seven Seas Motors therefore sought name suppression to ameliorate the harm that they say has been caused by publication of the Tribunal’s findings. For the reasons set out in a decision dated 1 November 2021, the Tribunal declined that request.

This name suppression application

Ongoing correspondence from David Jaques

[13] Seven Seas Motors and Mr Nasser say that Mr Jaques, who has assisted Ms Kaur in bringing her claim, has repeatedly sent unwanted correspondence to them, threatening to approach the Fair Go television programme and Stuff reporters with false or negative information about Seven Seas Motors and Mr Nasser’s business.
[14] Seven Seas Motors and Mr Nasser have instructed a firm of lawyers, which has issued a “cease and desist” letter to Mr Jaques. That letter has been provided to the Tribunal. In that letter, it is alleged that Mr Jaques has made comments including statements such as:

• (a) “Will you refund all of her money or do we need to go through the whole process of proving you have breached the law again”;
• (b) “Has Fair Go contacted you yet?”
• (c) “I need to give this case to TradeMe too to show them they are hiding a repeat offencer [sic] by taking the speedo winding question down”; and
• (d) “I would think long and hard about this if I were you as you’re going to have such a bad reputation in the press soon that you’ll never sell a car again”.

[15] Seven Seas Motors and Mr Nasser are concerned that Mr Jaques’ campaign will continue if their names are not suppressed and that the ongoing campaign, combined with any further publicity arising from the Tribunal’s decision, will have an adverse impact on their business interests and integrity.

The Tribunal’s assessment

[16] In considering this application, the Tribunal has considered all information filed by Mr Nasser and Seven Seas Motors in connection with this application and their earlier application for name suppression. The Tribunal considers that earlier information to be relevant as it relates to the business and personal interests of Mr Nasser and Seven Seas Motors and involves Mr Jaques,
[17] Having considered that information, the Tribunal considers that Mr Nasser and Seven Seas Motors have not demonstrated to the requisite high standard that the interests of justice require that the Tribunal should depart from the usual principle of open justice in this case.
[18] The Tribunal acknowledges that Mr Nasser and Seven Seas Motors may suffer adverse publicity as a result of the decision issued for Ms Kaur’s claim. However, adverse publicity is a natural consequence of an adverse Tribunal finding and the evidence presented by Mr Nasser and Seven Seas Motors does not show that the consequences that may result from the publicity in this case will be so severe that the identity of Mr Nasser and Seven Seas Motors should be suppressed.
[19] Fundamentally, the public has a right to know if the Tribunal has made a finding that a motor vehicle trader has engaged in misleading conduct, particularly where this is the second case within 12 months where the Tribunal has found that the same motor vehicle trader has engaged in misleading conduct by selling a vehicle with an incorrect odometer reading. Certainly, there may be situations where the adverse consequences for the party seeking name suppression outweigh the public’s right to know, but in this case the evidence presented does not reach that threshold.
[20] Further, with the respect to the allegation that Mr Jaques is continuing to post references to the Stuff website article and to the previous Tribunal case and threatening to approach the media, the Tribunal is not satisfied that Mr Jaques’ conduct is so egregious, defamatory or harassing that an order for name suppression is necessary to cure any potential harm that may be caused to Mr Nasser or Seven Seas Motors by the publication of their names, or that the potential harm that may arise outweighs the public’s right to know about these proceedings. The Tribunal also notes that Seven Seas Motors and Mr Nasser have engaged lawyers and are able to take their own action if they consider that Mr Jaques’ conduct falls on the wrong side of the law.

Mr Nasser’s personal circumstances

[21] There is also nothing extraordinary about Mr Nasser’s personal circumstances to justify suppression of his name.
[22] The Tribunal frequently hears claims that involve facts or allegations that may cause professional or personal embarrassment to those involved. That kind of potential embarrassment alone does not justify a suppression order on its own, and there was insufficient evidence presented by Mr Nasser to show that the extent of professional or personal embarrassment that he will suffer should justify name suppression.
[23] Mr Nasser also provided some limited evidence relating to medical issues, including upcoming surgical procedures, but that evidence does not show that Mr Nasser suffers from any condition that may be adversely affected by the publication of his name in connection with these proceedings to the extent that an order for name suppression is appropriate.
[24] For these reasons, I decline the application for name suppression.

B R Carter
Adjudicator

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[1] Motor Vehicle Sales Act 2003, Schedule 1, cl 13A.

[2] Motor Vehicle Sales Act 2003, s 94.

[3] Erceg v Erceg [2016] NZSC 135 at [13].

[4] Jaques v Seven Seas Motors Ltd and Jamal Nasser [2021] NZMVDT 114 (23 June 2021).

[5] Adam Jacobson “Auckland car dealer must pay back $10k for selling used Jaguar with tampered odometer” (9 August 2021) stuff.co.nz <https://www.stuff.co.nz/business/125975296/auckland-car-dealer-must-pay-back-10k-for-selling-used-jaguar-with-tampered-odometer>.