Jama v AJ Motors Limited - Reference No. MVD 065/2024 [2024] NZMVDT 99 (18 June 2024)

Last Updated: 19 July 2024

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 065/2024 [2024] NZMVDT 099 BETWEEN HASHI JAMA Applicant AND AJ MOTORS LIMITED Respondent

MEMBERS OF TRIBUNAL

D Watson, Adjudicator

S Haynes, Assessor

HEARING at Auckland on 13 June 2024 (by audio-visual link)

APPEARANCES

H Jama, Applicant (assisted by an interpreter)

R Zhang, for the Respondent

DATE OF DECISION 18 June 2024

_________________________________________________________________

DECISION OF THE TRIBUNAL

_________________________________________________________________

The application of Hashi Jama is dismissed.

_________________________________________________________________

REASONS

Introduction

[1] Hashi Jama purchased a black 2009 Toyota Wish (registration QK766) on 12 January 2023 from AJ Motors Ltd (AJM) for $10,294. He claimed that the vehicle suffered from a number of faults. He swapped the vehicle with another 2009 Toyota wish vehicle (registration QAY980) and claims that he did not agree to pay $3000 for the changeover price. He is claiming the return of that money from AJM.

The issue

[2] The sole issue requiring the Tribunal’s consideration in this case is whether AJM engaged in conduct that amounted to coercion in breach of s 23 of the Fair Trading Act 1986 (the FTA).

Relevant background

[3] The vehicle which Mr Jama purchased had a current odometer reading of 125,787 km at the time of purchase. Six days after he bought the vehicle some lights were illuminated on the dashboard. He took the vehicle back to AJM. He felt the vehicle was not a safe vehicle. AJM offered to repair the vehicle and gave him a loan car.
[4] It took a further five days for the vehicle to be repaired. He claims he returned to AJM to pick up the vehicle but within only 2 km of driving engine lights were illuminated on the dashboard again. He drove straight back to AJM. There was an altercation between himself and staff at AJM and he became very angry because he felt he had been sold a lemon. He was demanding a refund. The police were called.
[5] Mr Jama was told not to return to the premises on his own so he returned over the next day or so and was given a courtesy vehicle while the vehicle was being repaired. The courtesy vehicle was the same type of vehicle but was silver and had much lower mileage. According to Mr Jama its mileage was 100,000 km, so lower than the vehicle he had bought.
[6] A few days later, Mr Jama claims that his wife was threatened by AJM because the courtesy vehicle’s registration had expired and she was only on a restricted license. He claims she was pressured to going to AJM and paying an additional $3000 to AJM. He says that neither she nor he agreed to pay this money.
[7] Mr Jama confirmed at the end of the hearing that he wants to keep the new vehicle, which he still has and is happy with, but he wants to recover his $3,000, which he claims was unfairly procured from his wife.

AJM’s position

[8] AJM agrees that Mr Jama bought a 2009 black Toyota Wish, registration number QKD766, from it on 12 January 2024.
[9] It says that Mr Jama returned to its premises with the vehicle about 6 days later and said that there was an engine light on. AJM inspected the vehicle and found that there was a blown fuse which it repaired. It says that this was a minor issue. It produced a copy of the relevant invoice for that repair.
[10] Mr Jama then returned with the vehicle because the engine check light was on again. This time the issue was a faulty gear selector switch but once again it was a minor issue to repair. That said, its mechanic said it might take some time to obtain the necessary parts. AJM offered to give Mr Jama use of a loan vehicle. At this point Mr Jama became very angry and the police had to be called.
[11] On 1 February 2024, the next day, Mr Jama filed the current application.
[12] AJM was very happy to provide a courtesy vehicle to Mr Jama when he returned with a friend to pick up the courtesy car. The courtesy vehicle it provided him was another Toyota wish that had for sale on its car yard at $14,675. The registration number was QAY980 and it had a much lower odometer reading at 85,000 km (not 100,000 km).
[13] Not long after this, AJM says that Mr Jama’s wife and daughter called into the premises to ask if they could buy this vehicle instead. It completely rejects any suggestion that it was threatening Mr Jama’s wife in any way at all.
[14] There was a negotiation on the price difference that would need to be exchanged to reflect the fact that this was a more expensive vehicle and it was agreed that there would be a $3,000 exchange price. Mr Jama’s wife therefore paid $3000 on EFTPOS on 14 February 2024 and the ownership was changed that same day.
[15] AJM therefore believed that the dispute between the parties had been satisfactorily brought to an end.
[16] On 15 February 2024, AJM advised the Tribunal that Mr Jama had resolved the matter the day before by trading on his vehicle at the original purchase price and purchasing a new vehicle.
[17] Mr Jama advised the Tribunal that the matter had not settled and that he was seeking a refund of the payment he had made.
[18] In the meantime, the original vehicle was repaired and sold to another party.

Did AJM engage in conduct that amounted to coercion in breach of s 23 of the FTA?

[19] 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.

[20] It was difficult to understand the nature of Mr Jama’s claim because, based on the material filed, it was not immediately apparent whether he still had the second Toyota Wish and, if he did, whether he wanted to retain it. He became very agitated during the hearing when articulating himself and I was impressed with the skill of the interpreter who assisted the hearing greatly.
[21] Mr Jama was alleging he was sold a lemon, however, he no longer has the original vehicle and wants to retain the vehicle that he does have, which is registered in either his or his wife’s name now. His claim was different when he first filed the claim because back then, he did not have ownership of the second vehicle. Now, at its core, his claim is simply that he should not have had to pay the additional $3,000.
[22] His claim is that his wife was wrongly pressured or “coerced” into paying that $3,000. If indeed she was, then there may be a remedy under s 23 of the FTA as outlined above.

The burden of proof

[23] I begin by noting that as with any claim before the Motor Vehicle Disputes Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
[24] This is referred to as the “burden of proof”. Independent witnesses and corroborating documents can be an important part of discharging this burden. Ultimately, however, it is for the party making the application to decide what evidence to put before the Tribunal.
[25] I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

Relevant law regarding “coersion”

[26] In Hodges v Webb, Peterson J stated that the concept of “coercion” involved “something in the nature of negation of choice”.[1] 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.

Analysis

[27] Mr Jama has not satisfied me that there was any coercion at all in this case. First, his wife gave no evidence at all in the case. When I asked him during the hearing if she was available to give evidence, he went to look for her but then said she had left the house.
[28] Second, the particulars of his allegation of undue pressure and coercion did not hang together very well. It made no commercial sense that a vehicle supplier would threaten an already dissatisfied purchaser in relation to expired registration or restricted license (as was also alleged by Mr Jama). As Mr Zhang pointed out, why would his business make such a threat. AJM was simply trying to resolve the matter.
[29] Also, I consider that with the vehicle being worth more and being listed at a higher price it would stand to reason that the supplier would want some sort of exchange payment, given that the parties were not exchanging like for like.
[30] And, although Mr Jama says his wife did this transaction and not himself, it seems that he wants to retain the parts of the transaction he likes but step away from the parts he does not like. For example, he wants to retain the second vehicle which he is happy with but he does not want to pay the additional $3000 for it.
[31] Frankly, I found the story about pressure or coercion highly improbable and not believable at all.
[32] I am conscious of the fact that Mr Jama, who, as I say, became very upset and agitated during the hearing, might consider he has been wronged because of the faults with the first car but I am satisfied that neither of the faults that this vehicle had were significant faults. They were both minor issues that were capable of prompt repair and indeed were repaired with a courtesy vehicle being made available for the duration of the repair.
[33] This Tribunal frequently encounters cases where vehicles are sold and faults freshly discovered in the days after sale. Where the faults are minor and easily repaired, a purchaser is only entitled to the remedy of rejection if it has been an unreasonable period of time since request of repair or if the repair has not been properly undertaken. Here, although the repair might not have been as fast as it could have been I am satisfied that it was still completed within a reasonable amount of time.
[34] The application is dismissed.

DATED at AUCKLAND this 18th day of June 2024

D Watson
Adjudicator

---

[1] Hodges v Webb [1920] 2 Ch 70 at 86.