Damages awarded against dealer

Press, 3 November 1981, Page 7

Damages awarded against dealer

In a reserved judgment in the High Court, a Christchurch woman has been awarded damages against a motor vehicle dealer for repairs to a Mercedes Benz sports car which she bought for $14,000 in 1978, but which cost her another $2740 in repairs in a period of just over a month from purchase. Mr Justice Roper gave judgment for the plaintiff, Elizabeth May Bellis, married, for a sum of $l9OO against Allan Boyd Motors, Ltd, a Christchurch motor vehicle dealer named as defendant.

The $l9OO comprises $lBOO for repairs, and $lOO sought for general damages. His Honour’s judgment also pro-

vided the the defendant pay the plaintiff interest on $lBOO at 10 per cent for one year.

The civil action for damages was heard in the High Court on October 18 and 19. Mr P. H. B. Hall appeared for the plaintiff and Mr P. F. Whiteside for the defendant comparty. The plaintiff had sought damages of $2740 for the cost of repairs, $lOO general damages, and $lB9 paid for a rental car during part of the time the Mercedes was off the road.

His Honour, in fixing the award, said the full repair cost of $2740 was not recoverable. Damages must be assessed on the basis of compensation, so that the plaintiff was placed in the same position, as far as money came into it, as if the contract had been performed.

In the present case the vehicle was repaired up to factory specification standard and the opportunity was taken to do other work on the engine while it was dismantled that had nothing to do with the basic problem. The judgment said that the plaintiff relied on a section of the Motor Vehicle Dealers’ Act for the sale of a category D vehicle that it must have a currant warrant of fitness and be of. merchantable quality and fit for the purpose for which vehicles of that type were usually used. The judgment traversed evidence in the case, and said that in his evidence Mr Boyd, managing director of the" firm, a motor vehicle dealer of 14 years’ standing, described the act as a hard one to follow. “The same, perhaps, could be said of his performance in this transaction. Where there was conflict between his testimony

and that of the Bellis’ I had no hesitation in accepting the evidence of the latter,"

Evidence of the purchase of the car. which had been advertised as a 1971 model, was traversed in the judgment. The agreement was that the $14,000 purchase price would be satisfied by $2OOO in cash. $2400 for a trade-in, a cheque for $4BOO and the balance of $4BOO on hire- purchase. Mr Boyd began to make out the necessary papers. Mrs Bellis noticed that Mr Boyd had recorded the year of registration on the statutory forip as 1969,' not 1971. She queried the change in year, but decided to proceed with the sale. Mr. Boyd asserted that he only became aware . that 1969 ; was the correct: year when he was making out the agreement and looked at the vehicle's log book. When writing out the statutory form, Mr Boyd affixed a sticker, “Ex-overseas vehicle-No warranty." advising that the dealer offering the vehicle for sale was not obliged to repair any defect or replace faulty parts.

His Honour said that, in fact, it' was not an “Exoverseas vehicle." It had been first registered in New Zealand in 1969 with a speedometer reading of 24 miles, and it was now common ground that it was a category D vehicle. Although Mr Boyd might not have had possession of the registration papers at that time, he did have the vehicle’s log book, and must have known the true position.

Mrs Bellis was not prepared to buy a vehicle without a warranty and, presumably to save the day and the sale, Mr Boyd wrote and signed on the top of the

agreement for sale and purchase. "50/50 warrant}’ for two months"

Problems with the car. which began two days after purchase, were then detailed in the judgment. In the result, he said, repairs were carried out to a total cost of $2685. Major items included a rebore, fitting of new pistons, grinding the crankshaft, a valve grind, and fitting a new oil pump and fan coupling. r : Referring to defence submissions and legal references quoted by Mr. Whiteside, his Honour said the qpestioh was not whether; in the abstract, the goods could be described as merchantable, but whether they were mer-. chantable under the contract description and the circumstances of the particular case. . ■

His Honour said Mrs Bellis purchased what could be

fairly called a high performance. quality vehicle, of no great mileage for a vehicle of its class, at a price which in 1978 Was certainly at the upper end of the scale even for new vehicles. It was described bv Mr Bovd as "a superb car for 46.000 miles. ” "as new." "hardly run in." and "in excellent order." "In fact, the vehicle could not be driven as one would expect to drive a vehicle of that class, and the hidden defects were such that a buyer fully acquainted with them would certainly not have paid anything like $14,000. if he had been prepared to buy at all." his Honour said. His Honour held there had been a clear breach of the terms implied in the section of the act. and awarded judgment for the plaintiff in the amounts specified.