Perez v The Car Company Limited [2025] NZMVDT 14 (22 January 2025)

Last Updated: 21 February 2025

IN THE MOTOR VEHICLE DISPUTES TRIBUNAL I TE RŌPŪ TAKE TAUTOHENGA Ā-WAKA MVD 547/2024 [2025] NZMVDT 014 BETWEEN VICTOR ALVAREZ PEREZ Applicant AND THE CAR COMPANY LIMITED Respondent

HEARING at CHRISTCHURCH on 16 January 2025 (by audio-visual link) MEMBERS OF TRIBUNAL

D M Jackson, Barrister – Adjudicator

S Cousins – Assessor

APPEARANCES

V A Perez, Applicant

N Perez, Witness for the Applicant

R Qureshi, Interpreter (Spanish)

S Booth, Business Manager for the Respondent

B Brownie, General Manager for the Respondent

DATE OF DECISION 22 January 2025

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DECISION OF THE TRIBUNAL

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A The application is dismissed.

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REASONS

Introduction

• [1] On 16 December 2023 Mr Perez (Mr Perez Snr) purchased, for his son Nike Perez (Mr Perez Jnr), a 2011 Subaru Forester (the vehicle) from the Car Company Limited (TCCL) for $15,267. As part of the transaction, Mr Perez Snr traded in Mr Perez Jnr’s 2008 VW Golf (the golf). The vehicle’s odometer was 83,315 kms at the time of sale whereas the golf’s odometer was 147,205 kms. The Vehicle Offer and Sale Agreement dated 16 December 2023 records that the trade-in value of the golf was $1,500. That value is also referred to in the motor vehicle finance agreement arranged by TCCL also dated 16 December 2023.
• [2] Within a month or so of purchase, Mr Perez Jnr, returned to TCCL to say he no longer wanted the vehicle and wanted the golf back. He was informed that the golf had since been sold (TCCL sold the golf to a local wholesaler for $1,750). Mr Perez Jnr claimed that the salesman he had dealt with, had offered him $12,000 for the golf as part of the trade-in and likewise claimed that neither he nor his father understood or agreed to the transaction or the motor vehicle finance obtained. Mr Perez Snr, who is named as the purchaser and in whose name the vehicle is registered, applies to the Tribunal for orders compensating him for what he says was misleading conduct on the part of TCCL in inducing him (and his son) to trade in the golf for $12,000 but then only giving him $1,500 for the golf in the bargain.
• [3] TCCL resist the application. It says its sales team follow an agreed process for assessing the value of trade-ins, which involves consultation with management. Further, all sales staff ensure that any Vehicle Offer and Sale Agreement (VOSA) and motor vehicle finance agreement is discussed and understood by its purchasers before executing those documents. It says that happened here (Mr Perez Snr and Jnr having an interpreter friend present at the time) and the claim now made is so farfetched as to be construed as nonsense. This is especially so because Mr Perez Jnr confirms he only paid $6,000 for the golf in the first place.

The issue

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

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

• [5] 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.

• [6] The test for establishing a breach of s 9 was set out by the Supreme Court in Red Eagle Corp Ltd v Ellis:^[1]

  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.

• [7] Mr Perez Snr and Jnr claim that it was a term of the sale that the price payable for the golf would be $12,000. The Tribunal does not have jurisdiction to resolve disputes concerning the terms of a contract. The Tribunal does have jurisdiction to resolve disputes involving alleged misleading and deceptive conduct under the FTA, which is essentially what both men claimed happened here; namely that they were duped or misled into trading in the golf for $1,500.
• [8] I heard from both men. I heard from Messrs Brownie and Booth for TCCL. I had the benefit of a written statement from one of the sales team involved in the transaction, Mr A Oliver. Mr Oliver’s evidence was that one of the sales team, Mr K Burns, spoke with Messrs Perez about a trade in of the golf for a maximum of $1,500 subject to inspection and warrant of fitness. Finance was discussed given the shortfall in the purchase price of the vehicle and referrals were made to Mr Oliver and then onto Mr Booth, the Business Manager, who would handle all aspects of the transaction.
• [9] Mr Booth explained to me the process of applying for and obtaining motor vehicle finance for Mr Perez Snr, which required his obtaining multiple payslips from him, via Mr Perez Jnr, in order progress the application. Mr Booth noted that Mr Perez Jnr had no difficultly in communicating with him via email (which Mr Perez Jnr explained was due to his having an automatic translation function in his email).
• [10] However, once finance was approved and the transaction was ready to be documented, Mr Booth insisted that Messrs Perez attend TCCL’s premises in person, to go through the documentation, and with an interpreter, their friend – Andres (who did not appear at the hearing). Mr Booth explained that multiple persons attended TCCL’s premises, one hour earlier than scheduled, and without Andres.
• [11] Mr Booth insisted that Andres attend and waited for him to arrive at TCCL’s premises. Once Andres arrived, Mr Booth commenced taking all those present through the VOSA and the motor vehicle finance agreement. His recollection was that everyone acknowledged, via Andres, that the deal – as documented – was understood and accepted by all. This included Mr Perez Snr acknowledging that he was to borrow $14,248.05 in the bargain (for the vehicle and insurances).
• [12] Mr Brownie explained that there was “no way” his company would offer $12,000 for a 2008 VW Golf with close to 150,000 kms mileage. It was not a vehicle TCCL would sell on its yard, hence it was sold to a vehicle wholesaler for $1,750 within days. He considered the trade-in value was fair noting that the trade-in value is not necessarily market value or the price paid for the vehicle by Mr Perez Jnr.
• [13] Messrs Perez confirmed to me that neither of them read the VOSA or the motor vehicle finance agreement. Mr Perez Snr signed both documents however and did not suggest otherwise. He did so in circumstances where he had the benefit of translation and advice from multiple persons and especially Andres, who Mr Booth addressed.
• [14] Messrs Perez have continued to use the vehicle. Its odometer now reads 96,758 kms (some 13,000 kms travelled since purchase). Further, Messrs Perez delayed bringing this application for several months despite the serious allegations made by them against TCCL.
• [15] I am satisfied on the evidence that there is no plausible basis for the claim that TCCL offered Messrs Perez $12,000 for the golf. It is inconceivable that TCCL would do so for a vehicle of the golf’s age and mileage. Rather, I am satisfied that the transaction was negotiated, documented, and executed fairly and squarely in accordance with what was agreed by them at the time. That is, as per the terms of the VOSA.
• [16] I am not satisfied that TCCL engaged in misleading or deceptive conduct. On the contrary, I am satisfied that it acted fairly and appropriately towards Messrs Perez. I find those gentlemen to be mistaken in their evidence and claims before me.
• [17] The application is dismissed.

D M Jackson
Adjudicator

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^[1] Red Eagle Corp Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28].