Bandara v Wheeler Motor Company Limited - Reference No. MVD 130/2024 [2024] NZMVDT 112 (2 July 2024)

Last Updated: 4 September 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 130/2024 [2024] NZMVDT 112 BETWEEN ASHIKA BANDARA Applicant AND WHEELER MOTOR COMPANY LIMITED Respondent

HEARING at CHRISTCHURCH on 6 June 2024 (by audio-visual link) MEMBERS OF TRIBUNAL

D M Jackson, Barrister – Adjudicator S Cousins – Assessor

APPEARANCES

A Bandara, Applicant S Navaratnam, Interpreter D Fernando, Witness for the Applicant

J Feeney, Dealership Manager for the Respondent

DATE OF DECISION 2 July 2024

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

A Ms Bandara’s application is dismissed.

_________________________________________________________________

REASONS

Introduction

[1] On 9 December 2023, Ms Bandara purchased a 2013 Mitsubishi Outlander PHEV hybrid from Wheeler Motor Company Limited (Wheeler) for $23,919.00[1]. Ms Bandara has no issue with the vehicle purchased. Rather, she alleges that at the time of purchase she was misled by Wheeler as to the process or steps required for her to secure the Clean Car Discount, then offered by the New Zealand Government. The Discount ended on 31 December 2023 but Ms Bandara did not apply for her discount until January 2024 and missed out, as she was too late.
[2] Ms Bandara says that a representative of Wheeler advised her, at the time of sale, that the Discount would be paid to Ms Bandara’s bank account. Ms Bandara says she relied on that advice and took no further steps to secure the Discount. It was only when she had not received the Discount into her bank account, that she made enquiries and discovered that it had not been applied for.
[3] Wheeler denies that it misled or misrepresented any aspect of the Discount to Ms Bandara and that responsibility for the failure to secure the Discount lays with her.

The issues

[4] The issue requiring the Tribunal’s consideration in this case is whether Wheeler engaged in misleading conduct in breach of s 9 of the Fair Trading Act 1986 (FTA)?

Relevant background

[5] The Clean Car Discount was a New Zealand Government scheme that started in 2021 to provide rebates and charges based on carbon emissions for new and used vehicle imports. The Scheme was repealed in 2023 which meant that rebate applications closed after 11.59 pm on 31 December 2023. There is no ability to apply for a rebate retrospectively. Ms Bandara tried to do so but failed.

Has Wheeler engaged in conduct that breached s 9 of the FTA?

[6] 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.

[7] The test for establishing a breach of s 9 was set out by the Supreme Court in Red Eagle Corp 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.

[8] Ms Bandara is newly arrived to New Zealand, works as a caregiver, and has poor English. She was assisted by Mr Fernando and with the aid of an interpreter throughout the hearing.
[9] On 4 December 2023 – Ms Bandara contacted Mr Fernando’s company (which had helped with her move to New Zealand) to express her interest in purchasing a “2013 Mitsubishi Outlander PHEV G 4WD” (PHEV), which was advertised on Trademe by Wheeler.
[10] She says the purchase of the vehicle was solely driven by her desire to obtain the Clean Car Rebate of $2,012.50 as stated on the relevant advertisements and on the vehicle’s window sticker.
[11] Ms Bandara (with Mr Fernando and another person) test drove the vehicle on 9 December 2023. They spoke with a salesperson who explained the PHEV vehicle to them and attended to some minor concerns following the test drive.
[12] Ms Bandara says that because she was aware the Discount was to end on the 31 December 2023, she decided to go ahead with the purchase on the same day as the test drive. She says that she (and the others referred to) were introduced to one of Wheeler’s “finance and insurance team” to organise finance, insurance and the Discount.
[13] Ms Bandara insists that she made this staff member aware of her desire to secure the Discount and emphasised that she was unaware of and unfamiliar with the process to secure the Discount. Ms Bandara alleges the staff member told her that the Discount would appear in her bank account in due course but that there might be a delay due to the number of people looking to purchase vehicles and claim the Discount before the end of the month. Mr Fernando confirms that he took part in this conversation and that Ms Bandara’s account is accurate. Ms Bandara alleges that she relied on the staff member to secure the Discount for her based on what she had been told.
[14] However, by January 2024 she had not received the Discount and learned that it had not been applied for (by Wheeler). She tried to apply retrospectively but to no avail. She says the staff member told her she was new to the role.
[15] Wheeler deny this version of the conversation and produced a signed written statement from the staff member involved. That staff member acknowledges meeting with and handling Ms Bandara’s finance and associated paperwork but denies making any representations regarding the Discount. That person states “at the time I don’t believe that I was questioned about the rebate but I never would have advised someone that it would have been deposited directly into there bank account with out first applying for the refund”.
[16] Wheeler outlined that it has sold thousands of vehicles subject to the Discount with no issue or complaint. It says Ms Bandara has assumed Wheeler is responsible for securing the Discount, whereas in fact that is the sole responsibility of the purchaser as the registered owner of the vehicle purchased.
[17] Wheeler explained that during the month of December 2023, it sold 55 vehicles which qualified for the Discount. The relevant staff member processed the finance and purchase paperwork of 27 of those sales. But for Ms Bandara, no other purchaser has alleged that the staff member misrepresented the Discount to them.
[18] Wheeler says that it has never completed a Discount application form for a purchaser and says that the Discount process requires the purchaser to go online and submit the application (including supplying a copy of the Vehicle Offer and Sale Agreement or VOSA).
[19] Wheeler submits that Ms Bandara has made an error by way of assumption or misunderstanding, for which it is not responsible.
[20] On Ms Bandara’s case, the availability of the Discount was a critical factor for her in purchasing the vehicle. She accepts that she knew the Discount ended on 31 December 2023. Despite this, there is no evidence that Ms Bandara chased Wheeler for confirmation that the Discount had been applied for (during December). Rather, it was not until 19 January 2024 that Ms Bandara asked Mr Fernando to look into the matter for her; the Discount having failed to appear in her bank account.
[21] I am not satisfied that Wheeler misrepresented the Discount to Ms Bandara as alleged or at all. Rather, I believe Ms Bandara has assumed that Wheeler would take responsibility for something, which was solely for purchasers of qualifying vehicles to apply for. That is clear from the operation of the Discount and in particular the fact that the Discount could (only) be applied for online to the Waka Kotahi NZ Transport Agency. In bringing an application for the Discount, the purchaser needed to provide the VOSA, number plate and bank account details. Once approved, the Discount is paid directly to the purchaser’s bank account. The Discount has nothing to do with the Trader at all.
[22] Indeed, the Discount or rebate as it is often referred to did not come off the total cost paid to the Trader at the time of the sale. Rather, the purchaser remained liable to pay the Trader for the vehicle first, with the Discount being an independent transaction between the purchaser and Waka Kotahi.
[23] That is consistent with Wheeler’s evidence that it has never encountered this form of complaint or scenario before and that the relevant staff member has been involved in multiple other sales during the relevant period without incident.
[24] I believe this is a case of misapprehension or assumption. On the evidence before me, I am not satisfied that there has been misleading or deceptive conduct noting all relevant information regarding the Discount was available on the Waka Kotahi website at all times. Ms Bandara did not seek out that information herself and has simply assumed that Wheeler is responsible for processing the Discount. That is not the case and I do not consider Wheeler to have misrepresented that fact to her.
[25] Accordingly, Ms Bandara’s application is dismissed.

D M Jackson
Adjudicator

---

[1] The Vehicle Offer and Sale Agreement (VOSA) states that the total price paid was $23,919 (including a Mechanical Breakdown Insurance policy(MBI)). Without the MBI, the price of the vehicle was $22,484.

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