Oakland Wholesale Ltd v OByrne [2018] NZDC 23929

Published 17 April 2019

Appeal from Motor Vehicle Disputes Tribunal — unfair and prejudicial proceeding — Fair Trading Act 1986, s 9 — Consumer Guarantees Act 1993 — District Court Rules 2014, r 18.19. The appellant sought an appeal of a decision by the Motor Vehicle Disputes Tribunal that found the appellant had breached of s 9 of the Fair Trading Act. The basis for the appeal was that the proceeding was unfair and prejudicially affected the result. The appellant had sold a car to the respondent, but only after the respondent had flown from Wellington to Auckland to purchase the vehicle did the appellant inform the respondent that there was an issue with the clutch. The respondent did purchase the car but after 42 days it failed its warrant on the basis of a faulty clutch. In the Tribunal, the parties were told by the Adjudicator that the respondent would struggle to make a claim under the Fair Trading Act (FTA) and would have a better chance under the Consumer Guarantees Act (CGA). However, in making the determination, the Adjudicator relied on the FTA, while the appellant only prepared argument for the CGA. This, the appellant argued, was unfair and prejudiced the result of the proceeding. The Judge held that while it may have been somewhat unfair to the appellant, it did not prejudice the result. The Adjudicator had indicated that both the CGA and the FTA were relevant in making a determination. Therefore, the Judge dismissed the appeal. Judgment Date: 21 November 2018.

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