Kenny v Ministry of Business, Innovation and Employment
[2018] NZHC 1984
•6 August 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV 2017-485-645
[2018] NZHC 1984
IN THE MATTER OF an application pursuant to s 3 of the Declaratory Judgments Act 1908 BETWEEN
GEOFFREY BRIAN KENNY
Plaintiff
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Defendant
Hearing: 9 July 2018 Counsel:
A O’Connor for Plaintiff
J C Catran and E J Couper for Defendant
Judgment:
6 August 2018
JUDGMENT OF MALLON J
Table of contents
Introduction [1]
The factual background [5]
The MVS Act and its predecessor [20]
The MVS Act [20]
Motor Vehicle Dealers Act 1975 [32]
Summary of the new regime [42]
Finance company legislation [46]
The Credit Contracts and Consumer Finance Act 2003 [46]
The Financial Services Providers (Registration and Dispute Resolution) Act 2008 [51]
My assessment [52]
The “finance company” definition [52]
The s 7 definition [55]
Is Mr Kenny not a motor vehicle trader because of s 9 [59]
Does Mr Kenny hold himself out as a motor vehicle trader (s 8(1)(a))? [69] Does Mr Kenny sell motor vehicles for the primary purpose of gain (s 8(1)(b))? [88] Result [99]
KENNY v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2018] NZHC 1984 [6 August 2018]
Introduction
[1] Mr Kenny is in the business of motor vehicle finance. The issue in the proceeding is whether he is also in the business of motor vehicle trading. This question arises because Mr Kenny sells around a hundred cars a year on TradeMe when his business, MTF Lower Hutt, repossesses them pursuant to a default under the finance contract. The issue is one of statutory interpretation of the relevant provisions of the Motor Vehicle Sales Act 2003 (the MVS Act).
[2] The issue is before me by way of an application under the Declaratory Judgments Act 1908. The defendant is the Ministry of Business, Innovation and Employment (the Ministry). The Ministry administers the MVS Act and the Ministry’s Chief Executive appoints and employs the Registrar of Motor Vehicle Traders under the MVS Act. Mr Kenny and the Registrar have different views about whether Mr Kenny is a motor vehicle trader and they had been corresponding about that. Because Mr Kenny wishes to avoid prosecution if he is incorrect in his view, he seeks a declaration that he is not a motor vehicle trader under the MVS Act.
[3] Mr Kenny contends the MVS Act makes a distinction between finance companies and motor vehicle traders and that selling a repossessed vehicle under a security is finance company business and not motor vehicle trading business. He says that when he is selling repossessed vehicles he does not hold himself out as a registered trader under the MVS Act. He also says his primary purpose in selling repossessed vehicles is compliance with the Credit Contracts and Consumer Finance Act 2003 (the CCCF Act). He can obtain a better price for the vehicle than if he sells through a registered trader and this is to the benefit of the debtor.
[4] The Ministry contends that a finance company selling repossessed motor vehicles may be a motor vehicle trader depending on the circumstances. The Ministry says Mr Kenny is a motor vehicle trader because he does not sell repossessed vehicles through a trader, he holds himself as a motor vehicle trader, and his primary purpose in selling repossessed vehicles is for gain (by minimising his losses).
The factual background1
[5] Motor Trade Finance Limited (MTF) was formed in 1970 to enable a group of motor vehicle dealers to offer car loans to their customers. Mr Kenny is a director of MTF. MTF offers franchise agreements. Mr Kenny, through his company Geoff Kenny Ltd holds an MTF franchise in Lower Hutt (MTF Lower Hutt). MTF Lower Hutt borrows funds from MTF.
[6] MTF Lower Hutt offers motor vehicle financing to consumers. Financing is available to assist the person to purchase a vehicle, whether from a motor vehicle dealer or a private seller. MTF Lower Hutt also offers refinancing of motor vehicles and financing for other assets (for example, boats). A consumer can apply for finance if they are over 18 years of age, a New Zealand resident, hold a valid New Zealand driver’s licence and have regular income.
[7] If a consumer’s application is accepted by MTF Lower Hutt, the parties enter into a credit contract. Standard hire purchase credit terms of the contract include:
(a)The consumer agrees to purchase the vehicle conditionally from MTF Lower Hutt.
(b)MTF Lower Hutt lends the funds required to purchase the vehicle and the consumer agrees to borrow that amount. The consumer agrees to repay the loan principal and to pay interest on it (principal and interest).
(c)The consumer takes possession of the vehicle on the condition that, until the principal and interest are repaid, any other money owing is paid and any other contract between the consumer and MTF Lower Hutt that is in default has been paid, ownership of the vehicle does not pass to the consumer.
1 The parties filed an agreed statement of facts. This was supplemented by an affidavit from Mr Kenny and an Agreed Bundle of Documents.
(d)The consumer grants a security interest in the vehicle purchased to secure the payment of all money owed to MTF Lower Hutt and the performance of all obligations under the contract.
(e)The Consumer Guarantees Act 1993 applies to the contract unless the goods are acquired for business purposes.
(f)An event of default can occur for a number of reasons including:
(i)if any term of the contract is breached;
(ii)any person lawfully claims to have a security interest in the vehicle; or
(iii)MTF Lower Hutt reasonably believes the vehicle is at significant risk of loss or damage.
(g)If an event of default occurs, all amounts owing or to become owing under the contact immediately become due and payable and MTF Lower Hutt may enforce its security interest, cancel the contract, take possession of the vehicle, sue immediately for all money owing, exercise rights against any guarantor or appoint a receiver of the vehicle by repossessing the vehicle. Where MTF Lower Hutt takes possession of the vehicle, the consumer is liable for any sum of money paid by MTF Lower Hutt to repossess it.
(h)After repossessing a vehicle MTF Lower Hutt may sell it and use the proceeds to repay the loan. MTF Lower Hutt does not need to notify a consumer if it intends to sell a vehicle it has repossessed.
[8] The interest rates charged to consumers under the contract range from 9.75 per cent to 21.95 per cent per annum and on default increases to 25 per cent per annum.
[9] As recorded in the contract, MTF Lower Hutt is the legal owner. However the consumer is the registered person (recorded on the Motor Vehicle Register) and is
responsible for compliance with all legislation and requirements relating to possession of the vehicle, including registrations, licences, permits, warrants, certificates, authorisations, paying speeding and parking fines and keeping the vehicle roadworthy. The vehicle must also be insured in the consumer’s name and MTF Lower Hutt must be noted as an interested party.
[10] About 95 per cent of the transactions for which MTF Lower Hutt provides finance do not go into default. The remaining five per cent represents around 100 vehicle repossessions per year. In all cases, when MTF Lower Hutt repossesses and sells vehicles, the proceeds have been insufficient to repay the debtor’s payment obligations. However, if they were to be sufficient, any amount received above the consumer payment obligations would be returned to the consumer.
[11] Repossessed vehicles often do not have a warrant of fitness or a registration. They are also often unserviced, not mechanically sound and in poor condition. Sometimes they do not have ignition keys. Mr Kenny says that registered traders are typically scared of repossessed vehicles because of their unknown history and poor condition. A sizeable investment in panelling and painting is often required to make them yard ready.
[12] MTF Lower Hutt’s primary method of selling repossessed vehicles is by listing them on TradeMe. Mr Kenny regards TradeMe as an efficient and cost effective means of achieving his obligations under the CCCF Act. He notes that TradeMe’s website invites sellers to “sell in NZ’s largest car market”. As at 7 May 2018 at 11.08 am there were 82,330 vehicles for sale on TradeMe.
[13] Mr Kenny’s description of the vehicle on TradeMe includes details such as its make and model, the number of kilometres travelled, whether it is imported or not and whether it has a warrant of fitness. He also lists any faults he has noticed and encourages the purchaser to view the vehicle before they purchase it. Each listing also states: “Finance Company Repossession. No warranty given or implied. We are not registered traders”.
[14] The majority of feedback from purchasers on TradeMe about Mr Kenny have been positive: overall Mr Kenny has 235 positive reviews (of which 197 are from individuals), one neutral review and three negative reviews. The positive reviews include many comments along the lines of “great trader”, “excellent trader”, “great to deal with”, “great dealer”, “easy fast trade, thanks so much would happily trade again”, and “very satisfactory trade”.
[15]The three negative comments and Mr Kenny’s response to them are as follows:
My account is not fake where is vehicles pick up
Trader responded: I have sent you 3 emails with details for payment and pick up but no reply. Car can be picked up from 1/64 Hutt Road.
…
You should understand people always can’t afford things and can’t even give the full details on the car. Call you so many times, you didn’t not give previous owner details. How can I trust?
Trader responded: Absolute nonsense. If you couldn’t afford it why did you bid? This car was being sold a rego lapsed and poor condition. If u want previous owner do a lemon check? And owner got nothing to do with value of this car. U are obviously a young person totally out of your depth.
…
VIR report on the car showed that the owner that Geoff claimed, did not actually own the car until the day the auction finished, the rego expired earlier than advertised, and the engine was smaller. Very suspicious. Tried to contact Geoff, but will not answer emails or phone calls.
Trader responded: This is absolute rubbish this member has not replied to several emails and no calls from her. Engine size is as advertised and if any mistakes made re rego we would have put it right. This just a case of little girl operating in the big world and not having the integrity to back up her bid. We will be taking action thru the small claims court.
[16] In the past Mr Kenny has used other methods of sale, such as selling through Turners Car Auctions (Turners), which is registered as a motor vehicle trader. As at 7 May 2018 at 11.12 am Turners had 2,310 vehicles listed on its website for sale. It runs both mainstream and damaged vehicle auctions. Turners have at times insisted that repossessed vehicles be sold through the damaged vehicle auctions. Unlike TradeMe, Turners charges both the buyer and seller a fee. If MTF Lower Hutt were
to sell through another registered trader they would incorporate a profit margin. Also registered traders must charge GST whereas MTF Lower Hutt’s sales are GST exempt.
[17] Mr Kenny therefore considers he would be doing the borrower a disservice if he were to sell repossessed vehicles through a registered trader. He obtains a higher recovery for the borrower by selling them directly through TradeMe. An example of this concerns a 2002 Ford Falcon XR6 that MTF Lower Hutt repossessed in early 2018. Mr Kenny listed this for sale on TradeMe. It sold on 28 February 2018 for
$3,310. The sale could not be completed for reasons unrelated to the bidder. Mr Kenny decided to use this vehicle as a case study for the present proceeding. He delivered the vehicle to Turners in March 2018. Turners assessed the vehicle as having an auction value of $1,000-$1,200 with a suggested reserve of $1300. By 23 April 2018 the vehicle was placed in three auctions without selling. In May 2018 the vehicle sold for $1,200.
[18]The vehicles sold by Mr Kenny on TradeMe typically sell for less than
$10,000. The highest value sale was $18,000.
[19] There was no evidence at the hearing about whether other MTF franchisees sold their vehicles through registered motor vehicle traders. It was indicated that some MTF franchisees were registered motor vehicle traders. I sought further information about this. The parties have not been able to put forward an agreed position about this. In the circumstances I have decided it is appropriate to consider Mr Kenny’s position without reference to what other MTF franchisees may or may not do.2
The MVS Act and its predecessor
The MVS Act
[20] The purpose of the MVS Act is “to promote and protect the interests of consumers in relation to motor vehicle sales”.3 The Act requires all persons carrying
2 Leave was sought by the Ministry to file an affidavit about this. This affidavit was provided to assist the court in response to my enquiry and I appreciate that. However the information in that affidavit is limited and Mr Kenny takes issue with what can be inferred from it. Leave is declined in these circumstances.
3 Section 3.
on the business of motor vehicle trading to be registered. It sets out the procedure for registration. It imposes requirements on motor vehicle traders when selling motor vehicles. There are also enforcement provisions.
[21] Part 1 contains the preliminary provisions. These include the definition provisions. A finance company is defined as follows:4
finance company includes any person who carries on a business (except the business of motor vehicle trading) and who, in the course of that person’s ordinary business,—
(a)buys, exchanges, or takes by way of assignment any motor vehicle for any of the following purposes:
(i)letting or hiring it to any other person under a hire purchase agreement:
(ii)taking or enforcing a security over it:
(iii)leasing it to any other person without conferring on that person the right to buy the motor vehicle; or
(b)sells any motor vehicle bought, exchanged, or taken by way of assignment for any of the purposes specified in paragraph (a); or
(c)sells any motor vehicle under a right of sale conferred by a security interest (within the meaning of section 17(1)(a) of the Personal Property Securities Act 1999)
[22] A “motor vehicle trader” is defined as having the meaning given in s 7 of the Act.5 Section 7 provides:
7Meaning of motor vehicle trader
In this Act, motor vehicle trader—
(a)means any person who carries on the business of motor vehicle trading (whether or not that person carries on any other business); and
(b)includes—
(i)[Repealed]6
(ii)an importer:
4 Section 6.
5 Section 6.
6 This referred to a “car market operator”. It was repealed because it covered, for example, those that merely provided a venue for motor vehicle trades, such as TradeMe, rather than those engaged in the business of trading the vehicles.
(iii)a wholesaler:
(iv)a car auctioneer:
(v)a car consultant.
[23]Section 8 provides who is treated as a motor vehicle trader:
8Who is treated as motor vehicle trader
(1)A person is treated as carrying on the business of motor vehicle trading for the purposes of this Act if—
(a)the person holds out that the person is carrying on the business of motor vehicle trading; or
(b)in any specified period, the person sells more than 6 motor vehicles, unless that person proves that those motor vehicles were not sold for the primary purpose of gain; or
(c)in any specified period, the person imports more than 3 motor vehicles, unless that person proves that those motor vehicles were not imported to be sold for the primary purpose of gain.
(2)For the purposes of subsection (1)(a), a person holds out that the person is carrying on the business of motor vehicle trading if that person—
(a)advertises or notifies or states that the person carries on the business of motor vehicle trading; or
(b)in any way represents that the person is ready to carry, or is carrying, on the business of motor vehicle trading.
(3)Subsection (1)(b) does not apply to any trustee corporation (within the meaning of section 2(1) of the Trustee Act 1956) acting in the capacity of executor, administrator, trustee, guardian, committee, manager, agent, attorney, or liquidator, or in any fiduciary capacity, unless the trustee corporation is acting on behalf of the same person or estate.
[24]Section 9 provides who is not treated as a motor vehicle trader:
9Who is not treated as motor vehicle trader
(1)A person is not treated as carrying on the business of motor vehicle trading for the purposes of this Act only because that person is—
(a)an employee or an agent of a motor vehicle trader; or
(b)under a contract for services with a motor vehicle trader; or
(c)a solicitor who acts in that capacity as an agent for selling any motor vehicle unless that person is remunerated by
commission in addition to, or instead of, that person’s professional charges; or
(d)a liquidator of a company that is a motor vehicle trader registered under this Act; or
(e)a manufacturer who sells any motor vehicle to—
(i)the Crown; or
(ii)a motor vehicle trader registered under this Act; or
(iii)any person who is or has been employed by the manufacturer; or
(ea) a car market operator; or
(f)a licensed car wrecker; or
(g)a finance company selling any motor vehicle under a transaction in which a motor vehicle trader acts as an intermediary between the finance company and the buyer (whether or not the motor vehicle trader acts as an agent of the finance company); or
(h)a finance company, an insurance company, a rental car company, a storage provider (within the meaning of section 2(1) of the Land Transport Act 1998), or any other person, that sells any motor vehicle as an incidental part of the person’s ordinary business; or
(i)carrying on any other business besides carrying on the business of motor vehicle trading and who, in the course of that other business,—
(i)buys any motor vehicle for use in connection with that business, with or without the intention of reselling it after such use; or
(ii)resells the vehicle after using it in connection with that business.
(2)Subsection (1)(d), (h), and (i) applies only if the person sells motor vehicles through a motor vehicle trader registered under this Act.
[25] Part 2 of the Act sets out the requirements that apply to motor vehicle traders. These requirements include disclosure obligations when a motor vehicle trader offers a motor vehicle for sale. These obligations are to display prominently:7
7 Sections 14 and 15.
(a)a statement that a buyer or lessee of a motor vehicle who acquires the motor vehicle for value takes it free of any security interest in the motor vehicle; and
(b)a consumer information notice in accordance with the requirements of the Consumer Information Standards (Used Motor Vehicles) Regulations 2008 (discussed further below).
[26] A motor vehicle trader must obtain written acknowledgement from the buyer that they have received this information.8 A motor vehicle trader must also keep a record of each contract for the sale of any motor vehicle.9
[27] Part 3 of the Act concerns registration. A motor vehicle trader must be registered.10 Registration is made by application to the registrar.11 An application must include specified contact details.12 The registrar may accept or refuse an application for registration.13 The registrar must accept an application for registration if the application is properly completed and the applicant is not disqualified from registration.14 An individual is disqualified from registration if, for example, the individual is under 18 years of age, is an undischarged bankrupt, or has had his or her registration as a motor vehicle trader cancelled within in the preceding five years.15 A company is disqualified from registration if, for example, the company is in liquidation, or a person concerned in the management of the company is disqualified from registration in his or her own right, or if the company’s registration as a motor vehicle trader has been cancelled within the preceding five years.16
[28] Part 3 of the Act also provides that a register of motor vehicle traders must be kept.17 The purpose of the register is to enable members of the public to know who is responsible for a motor vehicle trading business, how to contact a motor vehicle trader
8 Section 16.
9 Section 21.
10 Section 10.
11 Section 31.
12 Section 32.
13 Section 33.
14 Section 34.
15 Section 24.
16 Section 25.
17 Section 52.
and how to determine whether or not a person is registered as a motor vehicle trader under the Act.18 It is also to facilitate the Ministry or the Commerce Commission’s enforcement of the Act or any consumer protection legislation and the Ministry’s compliance, audit, and other supporting and administrative functions under the Act.19
[29] Part 4 of the Act sets out the enforcement provisions. These include provisions for persons to be banned from participating in the business of motor vehicle trading. A ban may be imposed under the Act for various reasons including, for example, failing to pay money to a principal, entering false information into a record of contracts for sale, or being convicted of a dishonesty offence within the preceding five years.20 A ban may be imposed by the District Court if the person is not a fit and proper person to participate in the business of motor vehicle trading.21
[30] Part 4 also establishes motor vehicle disputes tribunals.22 A disputes tribunal has jurisdiction over disputes if one party is a motor vehicle trader and the total sum of the dispute does not exceed $100,000.23 If no party to the dispute is a motor vehicle trader, a disputes tribunal will still have jurisdiction if the parties to the dispute consent in writing to its determination by the disputes tribunal.24 The disputes tribunal has jurisdiction to inquire into and determine any application or claim about the sale of any motor vehicle under the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and Subpart 3 of Part 2 or Part 3 of the Contract and Commercial Law Act 2017.25
[31] Part 4 of the Act also contains offence provisions. This includes an offence of carrying on the business of motor vehicle trading without being registered.26 The penalty on conviction for this is a fine not exceeding $50,000 in the case of an individual or a fine not exceeding $200,000 in the case of a company.27
18 Section 53(a).
19 Section 53(b) and (c).
20 Section 68.
21 Section 69.
22 Section 82.
23 Section 90(1).
24 Section 90(2).
25 Section 89(a) and (b).
26 Section 95.
27 Section 118.
Motor Vehicle Dealers Act 1975
[32] The MVS Act replaced the Motor Vehicle Dealers Act 1975 (MVD Act). The MVD Act referred to motor vehicle dealers rather than motor vehicle traders. Section 4 of the MVD Act was the comparable provision to ss 7-9 of the MVS Act. It provided:28
4. Meaning of “motor vehicle dealer”-
(1)Subject to the succeeding provisions of this section, and to sections 5 and 6 of this Act, in this Act the term “motor vehicle dealer” means any person who carries on the business of purchasing, selling, exchanging, or leasing motor vehicles (whether as principal or agent), whether or not that person carries on any other business; and includes a car consultant.
(2)Without limiting the definition in subsection (1) of this section, every person who holds himself out to the public as being ready to carry on the business of purchasing, selling, exchanging, or leasing motor vehicles shall be deemed to be a motor vehicle dealer for the purposes of this Act.
(3)Every person who, in any period of 12 consecutive months commencing after the commencement of this Act, purchases, sells, exchanges, or leases more than 6 motor vehicles shall be presumed to be a motor vehicle dealer for the purposes of this Act, unless he proves that he did not purchase, sell, exchange, or lease the motor vehicles for the primary purpose of gain.
(4)Notwithstanding the foregoing provisions of this section, no person shall be deemed to be a motor vehicle dealer for the purposes of this Act by reason only of the fact that-
(a)Being a solicitor, he acts, in the course of his business as a solicitor, as agent in respect of the purchase, sale, exchange, or lease of any motor vehicle, unless he is remunerated for so acting by commission in addition to, or instead of, his professional charges:
(b)Being a manufacturer or wholesaler, he sells any motor vehicle to-
(i)The Crown; or
28 As explained in Mutual Rental Cars Ltd v Russell CA294/84, 14 August 1985, s 4(1) was directed at persons who carried on the business of dealing in motor vehicles; s 4(2) was concerned with those who held themselves out to the public as being ready to carry on such a business; s 4(3) provided a simple prima facie numerical test for limiting dealing in vehicles to licensed dealers which can be displaced by proof that the person did not deal with the vehicle for the primary purpose of gain; and s 4(4) provided qualified protection for those who would otherwise be within the terms of ss4(1)-(3).
(ii)Any other wholesaler, or to a licensed motor vehicle dealer; or
(iii)Any person who is or has been employed by the manufacturer or wholesaler:
(c)Being the holder of a secondhand dealer’s licence granted under the Secondhand Dealers Act 1963, he purchases, in the course of his business as a secondhand dealer, any motor vehicle for wrecking or dismantling by him:
(d)Being a finance company, it purchases, sells, exchanges, or leases any motor vehicle in the ordinary course of its business as a finance company:
(e)In the course of carrying on any other business (not being the business of a motor vehicle dealer) he-
(i)Purchases any motor vehicle for use in connection with that business, with or without the intention of reselling it after such use; or
(ii)Resells any such vehicle after using it as aforesaid.
[33] The definition of “finance company” in the MVD Act was the same as in the MVS Act. Section 4(4)(d) therefore covered finance company repossession sales.29
[34] These definitions aside, the MVD Act regime was significantly different. Motor vehicle dealers were required to be licensed and it was an offence to carry on the business of motor vehicle dealing without a licence.30 Licencing involved an application process and a hearing before a Motor Vehicle Dealers Board. The application process was protracted. There was a public notification process, and members of the public or the Motor Vehicle Dealers Institute could object to the granting of a licence of certain grounds and had an entitlement to be heard.31 Further, an applicant was required to be a registered salesman with at least two years’ experience in the previous three years working for a licence holder.32
29 Wilson v Interim Finance Ltd AP141/98, 23 October 1993 at p 33 per Giles J where the Judge contrasted the business undertaken by Interim Finance with the activities of a finance company. The Judge suggested that a company acting as a pawnbroker and selling a vehicle pursuant to its security would likely be protected by s 4(4)(d) of the MVD Act as the sale “would have been in the ordinary course of its business as a pawnbroker”.
30 Section 7.
31 Sections 9-13.
32 Section 14.
[35] A motor vehicle dealer’s licence specified the licensee and the place of business and it was an offence to carry on the business in a different name or place.33 Licensees were required to display a notice at their premises.34 They were also required to personally supervise and control their business.35
[36] The Act also provided a process for registration of motor vehicle salesmen. There were particular eligibility requirements and a public notice and a hearing process.36 The MVD Act provided for a Motor Vehicle Salesmen Registration Authority which heard and determined applications for registration to be a salesman and complaints about salesmen.37 Approved salesmen were a further class created under the Act.38
[37] The MVD Act pre-dated the Fair Trading Act 198639 and the Consumer Guarantees Act 2003,40 legislation aimed at contributing to a trading environment in which the interests of consumers are protected, businesses compete effectively, and consumers and businesses participate confidently.41 The MVD Act contained specific warranties and guarantees for vehicles sold by licensed motor vehicle dealers.42 There were also particular disclosure obligations for second hand vehicles. Relevantly for present purposes, this included a requirement to state “Repossessed vehicle. No warranty” where that was the case.43
33 Sections 19-21.
34 Sections 54-56.
35 Section 57.
36 Sections 66-72.
37 Section 64.
38 Part 6.
39 The Fair Trading Act applies to goods (which includes vehicles) supplied by a supplier in trade. It prohibits unfair practices such as misleading and deceptive conduct, false or unsubstantiated representations and other unfair business activities. It also provides for the promulgation of consumer information standards. Consumers have civil remedies. Additionally the Commerce Commission can take enforcement action.
40 The Consumer Guarantees Act provides consumers of goods (which includes vehicles for personal use) with certain guarantees from suppliers acting in trade. The guarantees include that the supplier has the right to sell the vehicle, the vehicle is free from any undisclosed security, the vehicle complies with its description, the vehicle is reasonably “fit for purpose” and it is otherwise of “acceptable quality” (terms which depend on the circumstances of the sale). The Act also provides remedies for a consumer.
41 Section 1A of the Acts.
42 Part 7.
43 Section 90.
[38] A licensed motor vehicle dealer was required to contribute to a fidelity fund. The fund was, amongst other things, to settle claims made by purchasers of vehicles from licensees for defective title, defective parts or the vehicle being substantially different to what had been represented.44 As with the MVS Act, there was a Motor Vehicle Disputes Tribunal for the resolution of disputes.45
[39] In short, the licensing regime was complicated and burdensome and imposed significant costs on licensees. As described in the Explanatory Note to the MVS Bill, the MVD Act was overly prescriptive and no longer addressing the needs of industry and consumers. The particular problems described in the Explanatory Note were:
·its coverage is limited to licensed motor vehicle dealers (other modes of motor vehicle trading fall outside its scope):
·it is inflexible and it imposes unnecessary restrictions:
·it imposes significant compliance costs on motor vehicle dealers:
·it attracts high levels of non-compliance (which is compounded by low levels of enforcement):
·it poses difficulties for consumers in obtaining redress:
·it duplicates a number of consumer protection provisions found in other statutes.
[40] The Explanatory Note described the major reforms under the MVS Act as being:46
This Bill requires all persons carrying on the business of motor vehicle trading to be registered. These persons include car market operators, importers, wholesalers, and car auctioneers. The Bill replaces the existing licensing regime for motor vehicle dealers with a registration regime that has specific minimal entry criteria aimed at ensuring that unsuitable persons are prevented from participating in the industry. For example, persons with certain criminal convictions are disqualified from registration.
44 Sections 30-53.
45 Sections 96-108.
46 The Explanatory Note goes on to refer to the abolition of the Motor Vehicle Dealers Licensing Board, a significantly simplified process for registration as a motor vehicle trader, an increase in penalties for carrying on the business of motor vehicle trading while unregistered, a regime for banning persons from participating in the motor vehicle trading industry, amongst other things.
[41] The Explanatory Note provided further information about the public policy objective of the MVS Act in its “regulatory impact and compliance cost statement” which said:47
Used motor vehicle purchases entail a number of risks. Vendors generally have an information advantage over consumers and, as relatively high-value consumer goods, vehicles are often used as security for finance and may be subject to prior security interests that are not always disclosed. These risks are not unique to the purchase of used motor vehicles, but the combination of risks is uncommon in the purchase of other consumer goods.
The current regime has high compliance costs and a restricted scope. For these reasons, over 70% of transactions occur outside the scope of the regime. In addition, consumer law and consumer expectations have changed significantly since the Motor Vehicle Dealers Act 1975 was passed.
Public policy objective
The overall objective is to ensure appropriate and accessible consumer protections through the provision of accurate information for consumers’ purchase decisions, credible and accessible redress, coverage of the full range of sales in trade, and effective enforcement.
Summary of the new regime
[42] The MVS Act was therefore intended to broaden the motor vehicles sales transactions caught by the regulatory regime in order to provide greater reach for the protections offered the legislation. The MVS Act now expressly included importers, wholesalers, auctioneers and, until it was later repealed, car market operators. In reality the only significant change was to include auctioneers. This is because case law had held that importers were within s 4(1),48 wholesalers were within the MVD Act unless they fell within s 4(4) and the inclusion of car market operators was repealed when motor vehicle sales began to be commonly conducted on TradeMe.49 In contrast auctioneers had been expressly excluded under the MVD Act.50 In addition the MVS Act changed the scope of some of the deeming provisions.
47 The Explanatory Note is similar to the principle behind the Bill as explained in the Select Committee Report to which I was also referred.
48 Motor Vehicle Dealers Institute Inc v Herron CA475/96, 16 June 1997; and Wilson v Interim Finance Ltd, above n 29.
49 The Motor Vehicle Sales Amendment Bill 2009 repealed “car market operators” from the definition of motor vehicle traders. Bill Digest 1690 comments that market operators are not traders unless they sell vehicles. TradeMe was specifically mentioned in Hansard as the reason for this change at (27 May 2010) 663 NZPD 11423 and (24 August 2010) 666 NZPD 13655.
50 Section 5.
[43] At the same time, the regulatory process is considerably less burdensome and the protections the MVS Act offered were reduced because there was other consumer protection legislation in place. The main protection, as compared with a sale by a finance company,51 is the information traders are required to disclose to consumers. Regulations provide the form of a consumer information notice that must be displayed with a used vehicle advertised for sale.52 The notice must include the trader’s contact information, sale information, information about overseas registration and whether it had any obvious structural damage when it was imported, and a short statement of the buyer’s rights under the Consumer Guarantees Act and the Fair Trading Act and the buyer’s obligations about registering a change of ownership. The sales information in the notice includes the vehicles make and model, year, engine capacity, actual distance challenged and warrant of fitness and registration status amongst other things.53
[44] An issue arose at the hearing about whether motor vehicle traders were required to sell a vehicle with a current warrant of fitness.54 In further submissions received after the hearing it has been clarified that the requirements are the same for motor vehicle traders as defined in the MVS Act and for other sellers of motor vehicles. All persons selling vehicles must ensure the vehicle has been certified within one month before the date of the vehicle’s delivery to the purchaser unless the purchaser undertakes in writing that the vehicle will not be operated on the road until it has been certified.55
[45] In addition to the consumer information notice, purchasers of vehicles from registered motor vehicle traders can bring their disputes to the Motor Vehicle Disputes Tribunal. This enables disputes to be determined by a specialist tribunal. Those who purchase from other sellers have access to the, non-specialist, Disputes Tribunal for claims up to $15,000 and the District Court.56
51 As discussed further below, a repossession sale by a finance company contains provisions intended to ensure the purchaser takes the vehicle free of registered security interests.
52 Consumer Information Standards (Used Motor Vehicles) Regulations 2008. The regulations were promulgated under s 27 of the Fair Trading Act.
53 Schedule 2.
54 Current warrants are ones issued within the preceding month.
55 Land Transport Rule: Vehicle Standards Compliance 2002 (35001/2002).
56 Disputes Tribunals may hear disputes of claims up to $20,000 if the parties consent.
Finance company legislation
The Credit Contracts and Consumer Finance Act 2003
[46] The issue in this case is whether a finance company selling repossessed vehicles pursuant to the security granted over the vehicle is a motor vehicle trader. That sale is subject to the Credit Contracts and Consumer Finance Act 2003 (the CCCF Act) enacted six months after the MVS Act. The CCCF Act sets out rules that apply when consumer goods, which includes vehicles covered by the MVS Act, are repossessed.57
[47] Under these rules the creditor must offer the repossessed vehicle for sale “as soon as is reasonably practicable” after 15 days has expired from when the debtor has been served with a repossession notice.58 Section 83Z says:
83Z Rules relating to sale by creditor
(1)When selling repossessed consumer goods (which may be by any method that meets the requirements of this subsection), the creditor must—
(a)ensure that every aspect of the sale, including the manner, time, place, and terms, is commercially reasonable; and
(b)take reasonable care to obtain the best price reasonably obtainable for the goods as at the time of sale.
…
[48] The debtor is entitled to obtain, at the debtor’s expense, a valuation of the vehicle at the time of repossession.59 The debtor has the right to reinstate or settle the credit contract, introduce a buyer or force a sale where the goods have not been sold within 30 working days.60
[49] The above provisions are protections for the debtor. There are also protections for the purchaser. Section 83ZG provides:
57 Credit Contracts and Consumer Finance Act 2003, s 5 and MVS Act, s 6(1).
58 Section 83Y.
59 Section 83ZA.
60 Sections 83ZB-83ZF.
83ZG Disposal of consumer goods to purchaser for value and in good faith
(1)A purchaser for value and in good faith who takes possession of consumer goods sold by a creditor takes the consumer goods free from the following interests:
(a)the interest of the debtor:
(b)any interest subordinate to that of the debtor:
(c)the interest of the creditor:
(d)any interest subordinate to that of the creditor.
(2)Subsection (1) applies whether or not registrations relating to any security interests referred to in subsection (1) have been removed from the register of personal property securities established under the Personal Property Securities Act 1999.
[50] If the vehicle is sold by the creditor, the creditor’s security interest is extinguished as are all other security interests that are subordinate to that security interest.61 Within seven days after the sale, the creditor must give to the debtor a statement of account that sets out the gross proceeds of the sale, the costs of the sale and the amount required to settle the credit contract.62 The creditor must pay from any surplus any other security interests in the order of their priority under the Personal Property Securities Act 1999.63
The Financial Services Providers (Registration and Dispute Resolution) Act 2008
[51] This Act provides broadly comparable provisions about who may provide financial services as the provisions in the MVS Act as to who may be registered as a motor vehicle trader. Financial service providers must be registered.64 There is public access to the register.65 A person is disqualified for registration for reasons which include being an undischarged bankrupt, prohibited from being a director or subject to a management ban, or convicted of a dishonesty offence.66
61 Section 83ZH.
62 Section 83ZI.
63 Section 83ZJ.
64 Financial Services Providers (Registration and Disputes Resolution) Act 2008, ss 11-12.
65 Section 25.
66 Section 14.
My assessment
The “finance company” definition
[52] A “finance company” is defined as including both the arrangement through which security is obtained over the vehicle (paragraphs (a) and (b) of the definition) and selling the vehicle pursuant to the security obtained (paragraph (c) of the definition). This suggests that when a finance company is selling a vehicle pursuant to the security, it is carrying out the business of a finance company rather than the business of motor vehicle trading.
[53] The words “(except the business of motor vehicle trading)” reinforce this. The business of a finance company is not the business of motor vehicle trading. However a finance company business may be operated as part and parcel of the business of motor vehicle trading. For example, a motor vehicle trader may sell a vehicle to a purchaser and offer them finance for it. The definition is about a finance company business which is not also a motor vehicle trading business. It is similar in effect to the former definition of “finance company” in the MVD Act which referred to a person “whose ordinary business is not that of dealing in motor vehicles”.
[54] In my view, therefore, the starting point is that a “finance company” is not necessarily a motor vehicle trading business because it sells vehicles pursuant to its security interest. Such sales are part of the business of a finance company. Whether a finance company is also in the business of motor vehicle trading depends on ss 7, 8 and 9 of the Act.
The s 7 definition
[55] Under s 7 a person who “carries on the business of motor vehicle trading” is a motor vehicle trader”. It is therefore clear that not every sale of a motor vehicle will be motor vehicle trading for the purposes of the Act. For example, a person who decides to sell their personal car will not be a motor vehicle trader. It is necessary that the person carry on a business in motor vehicle trading.
[56] As set out above, the predecessor to s 7 similarly referred to a person who “carries on the business of”. As to that wording, the Court of Appeal considered the ordinary sense of “business” was “the exercise of an activity in an organised and coherent way and one which is directed to an end result”. Further, the “existence of a profit-making motive … or of an intention that the activity serve commercial purposes” are material considerations.67
[57] The s 7 definition also makes it clear that a person can be a motor vehicle trader even if they are carrying on another business. In principle, therefore, just because a person is carrying on a finance company business, does not mean they cannot also be a motor vehicle trader.
[58] The s 7 definition specifies certain activities to be motor vehicle trading. This does not include finance companies. As Mr Kenny submits, had Parliament intended that finance company repossession sales to be motor vehicle trading, it could have expressly said so. The Ministry’s submission relies on ss 8 and 9.
Is Mr Kenny not a motor vehicle trader because of s 9
[59] Mr Kenny submits the purpose of s 9 is to provide a list of activities that in themselves are insufficient to constitute motor vehicle trading. He says the important words in s 9(1) are “only because”. The list is not a closed list. In other words, even if none of the listed activities apply, that does not mean the person is a motor vehicle trader. It just means they do not have the benefit of s 9.
[60] The Ministry submits s 9 provides a limited exception to those who would otherwise be carrying on the business of motor vehicle trading. It submits that finance companies must sell vehicles by or through motor vehicle traders in order to have the protection of s 9. The implication of s 9 is that, if they sell repossessed vehicles
67 Mutual Rental Cars Ltd v Russell, above n 28, at 10 per Richardson J citing income tax cases Calkin v CIR [1984] 1 NZLR 440 at 446; and Grieve v CIR [1984] 1 NZLR 101 at 106-107. An example is Motor Vehicle Dealers Institute Inc v Herron, above n 48, which concerned defendants who had a reputation for being able to import second hand vehicles from Japan. They were approached by people to import vehicles on their behalf. The defendants provided a list of vehicles with prices and arranged the importation of the selected vehicle but the purchaser sent the money directly to Japan. The Court of Appeal restored the conviction entered in the District Court on the basis that the transactions were part of a course of conduct with an obvious commercial purpose and so were motor vehicle dealing under s 4(1) of the former definition.
themselves rather than through a motor vehicle trader, they are carrying on the business of motor vehicle trading.
[61] I consider the correct approach to s 9 is to start with the opening words of s 9(1). Mr Kenny is “not treated as carrying on the business of motor vehicle trading
… only because” he is within one of the sub-paragraphs of s 9(1). The natural and ordinary meaning of those words is that the activities listed are not by themselves sufficient to make a person a motor vehicle trader. If that is the person’s only association with the business of motor vehicle trading they are not a motor vehicle trader.
[62] The s 9 activities all have some association with motor vehicle trading. In a number of those cases, the purchaser of the vehicle will already have the benefit of the Act’s protections because a motor vehicle trader is already involved (subss (a), (b), (d), (e)(i) and (iii), (ea) and (g)). In other cases the purchaser is the Crown (subs (e)(ii)) or there is no longer a purchaser involved (subs (f)). In the remaining cases the intention appears to be to ensure that certain business activities which may incidentally involve selling vehicles are not caught (subss (c), (h) and (i)). In all cases s 9 is about who is not to be treated as a motor vehicle trader. It is not about who is to be treated as motor vehicle trader.
[63] In Mutual Rental Cars Ltd v Russell the Court of Appeal considered the effect of s 4(4) of the MVD Act, the equivalent of s 9 in the MVS Act.68 In that case Mutual Rental Cars was convicted on a charge of being an unlicensed motor vehicle dealer. The defendant carried on a rental car business. It replaced its rental fleet every three years. Under a separate sales division of the defendant’s business, the ex-rentals were sold in car yards which it operated under its name. It did so on behalf of itself as well as others in the group. The cars were advertised for sale under its name. It offered to arrange finance for purchasers and it assisted prospective purchasers to sell their vehicles by putting them in touch with licenced motor vehicle dealers.
[64]The Court of Appeal described the function of s 4(4) as being:69
68 Mutual Rentals Cars Ltd v Russell, above n 28.
69 At p 11-12.
… to provide qualified protection for those whose vehicle transactions are within its terms. The protected transaction in each case is one carried out in the course of a different primary activity and in some cases of a specifically limited kind. The subsection takes out of the category of motor vehicle dealer those persons who have engaged in nominated dealing transactions in those special and limited circumstances. That is subject to the further qualification expressed in the formula that no such person is deemed a motor vehicle dealer by reason only of the fact that he [or she] comes within one of the paragraphs that follow. Thus subs (4) is not a shield if there are circumstances not covered by the protective umbrella of the particular paragraph which considered on their own still bring that person within the earlier definitions.
[65] The focus in that case was on s 4(4)(e) of the MVD Act, of which s 9(1)(i) of the MVS Act, is the comparable provision. The Court of Appeal considered that the words “[i]n the course of carrying on any other business (not being the business of motor vehicle dealer)” was to exclude from s 4(4)(e) where the primary business was motor vehicle dealing. The Court of Appeal said:70
The object of para (e) is readily perceivable. It is to obviate the need for licensing where vehicles used in the business are sold in the ordinary course. The orderly disposal of assets which have served their purpose in the business is a common and necessary business practice. Even where the selling arrangements involve substantial volumes and considerable organisation they may properly be characterised as the realisation of the assets of that business in an enterprising way rather than the venturing of them in another business of dealing. It is a question of fact and degree where and how the line is to be drawn. Clearly some advertising and displaying of such vehicles should be expected as incidental to selling and so as contemplated by the expression “resell” in the context of para (e). In such a case the person is not regarded by reason only of those reselling arrangements as being a motor vehicle dealer. But the selling may be conducted in such a way that notwithstanding the qualified protection afforded by the paragraph he is still regarded as carrying on the business of dealing in motor vehicles for the purposes of the section.
[66] On the facts, the Court of Appeal considered there was a different reason for why the defendant was unable to rely on s 4(4)(e). The defendant could not rely on the qualified protection provided by that provision because some of the cars it was selling belonged to other companies in the group. Those cars had not been purchased for use in the defendant’s business. As discussed further below, the defendant was convicted under s 4(2) (holding out that it was a motor vehicle dealer).
[67] The MVS Act has narrowed the qualified protection from that provided by s 4(4)(e). Because of s 9(2), section 9(1)(i) (the equivalent provision to s 4(4)(e))
70 At p 13-14.
applies only if the sales are made through a motor vehicle trader. Section 9(2) similarly narrows the qualified protection for finance companies in s 9(1)(h). At the same time, that now also expressly covers an insurance company, a rental car company, a storage provider or any other person, as well as a finance company.71 These additions appear intended to make it clear that sales by these businesses are potentially protected but only if they make the sales through a motor vehicle trader. If they do not use a motor vehicle trader they may be caught by s 8(1)(b) depending on the extent and purpose of the sale. This is consistent with Parliament’s intent to broaden the reach of the Act in order to promote and protect the interests of consumers in relation to motor vehicle sales.
[68] In other words, if Mr Kenny sold repossessed vehicles through a motor vehicle trader, he is not to be treated as a motor vehicle trader only because of this. As Mr Kenny does not sell motor vehicles through a registered trader, s 9(1)(h) does not apply to him. This means that s 9(1)(h) does not tell us whether Mr Kenny is a motor vehicle trader. For that question, s 8 must be considered.
Does Mr Kenny hold himself out as a motor vehicle trader (s 8(1)(a))?
[69] The Act treats Mr Kenny as carrying on the business of motor vehicle trading if he “holds out” that he is carrying on that business. Mr Kenny contends that he does not suggest he is in the business of motor vehicle trading. Instead his TradeMe listings explicitly state that “we are not registered traders” and the vehicle is a “finance company repossession”. Potential buyers who wish to inspect the car are advised they can do so at the “MTF office”.
[70] The Ministry submits that Mr Kenny’s statements do not assist because a person cannot contract out of the MVS Act. The consumer protection purpose would
71 The qualified protection for a finance company also more clearly addresses the different ways that a finance company may sell a vehicle. Section 9(1)(g) appears to be directed specifically to where a buyer wishes to buy a vehicle from a motor vehicle trader but requires finance from a finance company. The finance company may take ownership from the trader and sell the vehicle to the buyer through a hire purchase agreement as is the case with MTF Lower Hutt. Section 9(1)(g) is therefore saying that, if a finance company sells to a buyer in this way, that does not make MTF Lower Hutt a motor vehicle dealer. Section 9(1)(h) appears to be directed to where a finance company sells a vehicle pursuant to its security. That sale can be described as an incidental part of the ordinary business of a finance company but only has the protection conferred by s 9 if the sale is through a registered motor vehicle trader.
be thwarted if a person could avoid the regulatory system under the Act by saying publicly that the Act does not apply to them. In support of this submission, the Ministry relies on Interim Finance Ltd.72 In that case purchasers were provided with documentation which stated that Interim Finance was a finance company and not a motor vehicle dealer. The High Court said:73
I do not consider the fact that Interim Finance repeatedly said it was not a motor vehicle dealer to be very relevant, if at all. Protestations (written or oral) that you are not what the law says you are, do not prevail. If, on the facts, Interim Finance was conducting a motor vehicle dealing business then it matters not that it protests an incorrect view in its documentation.
[71] The Ministry submits the focus of s 8(1)(a) is on the impression a consumer would form when dealing with the business. The Ministry refers to Mutual Rental Cars where the Court of Appeal considered s 4(2) of the MVD Act, the equivalent of s 8(1)(a) of the MVS Act.74 The relevant inquiry is the impression made on “the man in the street”.75 The Ministry submits the man [or woman] in the street would perceive MTF Lower Hutt as holding itself out as a motor vehicle trader because:
(a)From MTF Lower Hutt’s statements, the public would understand that the business was not registered, rather than that it was not in the business of motor vehicle trading.
(b)Potential purchasers who take up the invitation to inspect the vehicles would turn up to MTF Lower Hutt which is set up as a professional business (in contrast to, for example, a private residence) and MTF stands for “Motor Trade Finance” (emphasis added).
(c)Potential purchasers may see the number of vehicles listed by MTF Lower Hutt on TradeMe and infer it to be in the business of motor vehicle trading.
72 Wilson v Interim Finance Ltd, above n 29.
73 At [9] per Giles J.
74 Mutual Rental Cars Ltd v Russell, above n 28.
75 At p 15 per Richardson J.
(d)Potential purchasers may also see the TradeMe feedback which refer to Mr Kenny as a “trader” or “dealer”. This suggests some customers have assumed that MTF Lower Hutt is a motor vehicle trader. This is a reasonable assumption in the circumstances.
(e)Potential purchasers may also visit the MTF franchise website. The website makes a number of references to “dealer”. For example, under the tab “About MTF” the website states: “MTF was formed in 1970 to enable a group of motor vehicle dealers to offer car loans to their customers”. On that same page, under the heading “Become an MTF dealer”, the website states: “As an MTF dealer you belong to a network of quality dealers who offer superior finance options and service throughout New Zealand”. Under the “Buying a car” tab, one of the headings is: “Buying from a dealer”. Under that heading there is a sub- heading: “A nationwide network of dealers” and the statement: “That means we’re well placed to help find the wheels that are right for you”.
[72] As set out earlier, the Act sets out two ways that a person may hold out they are carrying on the business of motor vehicle trading. The first is where the person advertises, notifies or states that they are carrying on that business (s 8(2)(a)). The second is where the person “in any way represents that the person is ready to, or is carrying on” that business (s 8(2)(b)). In my view Mr Kenny is not advertising, notifying or stating that he is carrying on the business of motor vehicle trading. Instead he is advertising the sale of vehicles as a finance company repossession. The question is whether he is in any way representing that he is carrying on the business of motor vehicle trading.
[73] In my view the passage from Interim Finance does not particularly assist. That case was quite different to the present case. It involved motor vehicle trading (through the business of importing vehicles for customers) under the guise of a finance arrangement. That finance arrangement was in reality an upfront deposit at the time of ordering the car and a balance payment with a commission for the trader when the car was delivered.
[74] As explained in Mutual Rental Cars in relation to the predecessor of s 8(1)(a), this provision is useful where, perhaps because of limited records or the absence of specific witnesses, the prosecution may be unable to prove that the person charged was carrying on a motor vehicle trading business but the external indications may nevertheless demonstrate that they were holding themselves out as being ready to do so. The Court of Appeal considered that it was a matter of fact and degree what constituted a holding out. However it involved “an inquiry into the impression made upon the public as to the manner in which the undertaking was conducted”.76
[75] In that case the Court of Appeal was not called upon to reconsider the High Court’s conclusion about this. The High Court considered there had been a holding out. This was because:77
The sale of the cars was conducted from several different car yards. These were operated under such names as “Avis Car Sales”, “Avis Young Ex Rentals”, “Avis Used Cars”, … and the like. There was nothing in these names or in the nature of the car yards themselves (containing, as they did, cars displayed for sale) which could have distinguished them in the minds of the public from any other car sales yard or used car business. Moreover, the defendant advertised its cars for sale in the same way as any other business seeking to sell cars. I do not consider that there is any other reasonable hypothesis open than that the defendant was holding itself out to the public as carrying on the business of selling used cars. It was plainly competing for the public’s custom with other firms seeking to sell cars. The member of the public who was minded to buy a car and who saw the defendant’s advertisement or its car yards could have gained no other impression. The fact that there may in some cases have been a reference to the fact that the cars were ‘ex rental’ would not have affected or diminished that impression.
[76] That case is therefore quite different from the present. Mr Kenny is using TradeMe to sell repossessed vehicles. That of itself makes no representation about this business. Members of the public also use TradeMe to sell vehicles. The manner in which the cars are sold, in contrast with the car sale yards in Mutual Rental Cars, make no representation about the nature of Mr Kenny’s business.
[77] The natural and ordinary meaning of “representation” is to convey something by words or conduct or both. For example, Black’s Law Dictionary defines “representation” as “a presentation of fact – either by words or conduct – made to
76 Mutual Rental Cars Ltd v Russell, above n 2867, at p 15 per Richardson J.
77 At p 8 citing the decision of Quilliam J in the High Court..
induce someone to act…”.78 In the Fair Trading Act context, a representation involves “a representor … saying something to the representee either by words (whether spoken or written) or other means…” and the “representor must be communicating a statement of fact to the representee either directly or by clear and necessary implication”.79
[78] This is consistent with the view that has been taken to the meaning of “holds out” under the MVD Act. For example, in the District Court it was said that holding out meant to represent to the public and the representation as to being ready to carry on the business “… may be made verbally, in written form, or by conduct. It may be made either expressly or impliedly but there must be no ambiguity as to what is meant
…”.80 Similarly, in the High Court it was said that “[h]olding out in this context is
simply to represent by words or conduct a state of affairs”.81
[79] In my view Mr Kenny was not representing by words that he was carrying on the business of a motor vehicle trader. He said he was not a registered trader and that the vehicle was a finance company repossession. These descriptions may not have been particularly clear to the general public. For example members of the public may not understand that those carrying on the business of motor vehicle trading are required to be registered. Further, the vehicle may have been obtained by a motor vehicle trading business from a finance company repossession. While these words may have been somewhat unclear to members of the public, they certainly were not unambiguously conveying that Mr Kenny was in the business of motor vehicle trading.
[80] I consider that Mr Kenny’s business premises also did not represent he was in the business of motor vehicle trading. The Ministry’s submission relies on a photograph of the exterior of the business. As the Ministry submits, this photograph indicates a commercial operation. However that operation is not obviously a motor trading business. The signage is predominantly about vehicle finance: “Vehicle finance approved. Today” and the “MTF” logo comprise the signage. The Ministry does not suggest there are vehicles on display at the business. Counsel for Mr Kenny
78 AB Garner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, Minnesota, 2014) at 1493.
79 Marcol Manufacturers Ltd v Commerce Commission [1991] 2 NZLR 502 (HC) at 506 per Tipping J.
80 Motor Vehicle Dealers Institute Inc v Dunn [1996] DCR 848 per Judge JR Callander at [20].
81 Kerry Stone Ltd v Knowles HC Napier CIV-2006-441-564, 25 October 2006 at [49] per Venning J.
advises they are not displayed at the business – they are stored at an unmanned warehouse. This is consistent with carrying on a finance company business and the selling of repossessed vehicles as an incidental part of that business.
[81] In my view there is no significance in the fact that “MTF” stands for “Motor Trade Finance” (emphasis added). That does not convey that the business is one of motor vehicle trading. It conveys that finance is available for motor vehicles.
[82] Nor is there significance in the fact that potential purchasers looking at Mr Kenny’s TradeMe reviews may see that he is often referred to as a good/great/excellent “trader”. Counsel for the Ministry accepts that this is a term which refers to anyone selling on the TradeMe website. Sales are often referred to as “trades” and the seller is often referred to as a “trader”. Consistent with this terminology, a number of reviews say “good trade”, “easy fast trade”, “great trade” and so on.
[83] A stronger point for the Ministry is that potential purchasers looking at Mr Kenny’s TradeMe reviews will see that he has sold a large number of repossessed vehicles. However the question is whether by that conduct Mr Kenny is representing that he is motor vehicle trader. The significance of making such a representation is that purchasers may wrongly believe they are purchasing from a registered motor vehicle trader and therefore have the protections of the MVS Act. The concern in Mutual Rental Cars was that the defendant was conducting its business in the same way as a licensed dealer, competing with licensed dealers and thereby misleading potential purchasers.
[84] In this case the number of sales made by Mr Kenny is a representation that he sells a number of vehicles through TradeMe. However, this is not of itself a representation that he is in the business of motor vehicle trading and that therefore the sales will be protected by the MVS Act. It is a representation only that he sells a lot of motor vehicles. Although this is relevant to whether Mr Kenny is holding himself out as a motor vehicle trader, also relevant is any representation about the nature of those sales and the protection conferred on purchasers in the listing for the particular vehicle being considered by a purchaser. Mr Kenny makes it clear he is not a
registered trader, the vehicle is a finance company repossession and no warranty is given.
[85] I agree with the Ministry that the MTF website is confusing. It is not immediately obvious to someone visiting the website that not all MTF franchisees sell vehicles (whether or not a purchaser requires finance) and that some simply finance vehicles purchased through a motor vehicle trader. However, in relation to MTF Lower Hutt in particular it becomes more apparent that MTF Lower Hutt is not a “vehicle dealer”. The website enables a user to click the area of interest under the “buying a car” and “selling a car” tabs. When Lower Hutt is selected, two boxes are displayed:
(a)One box says “1 vehicle dealers in your area” and there is a “view dealers” tab. When that tab is clicked, the page has a heading “For vehicles and finance” and the business contact details and location of “Wellington Vehicle Wholesalers” are provided. There is another heading “For finance” under which MTF Lower Hutt’s contact details and location are provided.
(b)The other box says “1 office in your area” and it sets out the contact details for MTF Lower Hutt. When this box is clicked and the tab “buying a car” is selected, the website page says “MTF Lower Hutt. Whether you are buying from a dealer, privately, online or want cash to negotiate, we provide an immediate answer”.
[86] In summary, once the Lower Hutt area is selected and the various tabs are followed, it becomes apparent that MTF Lower Hutt is involved in the business of motor vehicle finance not motor vehicle dealing.
[87] In these circumstances I am not persuaded that Mr Kenny is representing that he is carrying on the business of motor vehicle trading. The “impression made upon the public as to the manner in which the undertaking [is] conducted” when looked at as a whole is not that he is a registered motor vehicle trader. The impression is that Mr Kenny operates a finance company business and in that capacity he sells
repossessed vehicles. I consider the issue of whether a person is to be deemed to be motor vehicle trading because of the number of vehicles they sell is more appropriately determined by s 8(1)(b).
Does Mr Kenny sell motor vehicles for the primary purpose of gain (s 8(1)(b))?
[88] The Act treats Mr Kenny as carrying on the business of motor vehicle trading if in the preceding 12 month period he sold more than six motor vehicles, unless he proves that they “were not sold for the primary purpose of gain”. It is accepted that Mr Kenny has sold more than six motor vehicles in the last 12 months. The issue is whether he does so for the primary purpose of gain.
[89] The Ministry submits that the proper focus is on the object of the sale, that is why a person is selling the vehicle. The Ministry submits that when MTF Lower Hutt takes possession of the vehicle that is an election to take enforcement action for a default by exercising its security under the finance agreement. It submits the main object of this election is to maximise, as far as possible, the original benefit it expected to derive from the finance agreement. When a repossessed vehicle is sold, this minimises MTF Lower Hutt’s losses under the finance agreement. In other words Mr Kenny derives a commercial benefit from the sale of repossessed vehicles and this is a “gain” under s 8(1)(b).
[90] The Ministry relies on Motor Vehicle Dealers Institute v Ball as to the meaning of “gain”.82 In that case Mr Ball faced two charges of carrying on the business of motor vehicle trading under the Act. The District Court said:83
I do not agree with the defence submission that the term “gain” should be narrowly construed so as to be equivalent to profit. I agree with the prosecution view that it should be given a wider definition. I am not required to determine the outer limits of the term “gain”. For present purposes it is sufficient to say that, given the expansive interpretation required by the purposes of the Act, “gain” can include more than mere profit. I am inclined to read gain as a commercial benefit, which would encompass not just profit, but minimising losses, avoiding costs, and divesting encumbering assets.
82 Motor Vehicle Dealers Institute v Ball [2014] DCR 294.
83 At [26] per Chief Judge Doogue.
[91] The plain or dictionary meaning of the word includes “[i]ncrease of possessions, resources, or advantages; and instance of this; profit, improvement; spec. the acquisition of wealth. (Opp, loss) … Sums acquired by trade etc,; emoluments, winnings…”.84 Similarly, the definitions of “gain” in dictionaries of legal words and phrases include: “‘Gain’ is not restricted to pecuniary or commercial profits; it includes other considerations of value obtained from business transactions or dealings…”;85 “…a gain is something obtained, not necessarily a pecuniary gain…”;86 and “’gain’ includes a gain by keeping what one has, as well as a gain by getting what one has not…”.87
[92] I accept that “gain” is a wider term than “profit”. It encompasses some commercial advantage or improvement to the seller’s position which may be something other than receiving in monetary terms more than the costs involved in the sale.88 This must be the primary purpose of the motor vehicle sale. As explained in Mutual Rental Cars, the Court of Appeal regarded s 4(3) of the MVD Act, the equivalent of s 8(1)(b) in the MVS Act, to be a simple prima facie numerical test for limiting dealing in vehicles to licenced dealers. The number of trades was a simple way of determining whether a person was carrying on “the business of dealing in motor vehicles”. If the primary purpose was not “gain” that was evidence that the sale was not part of a business activity of selling motor vehicles.
[93] Mr Kenny does not propose any different meaning of “gain”. He accepts there is a commercial benefit in MTF Lower Hutt dealing with the repossessed vehicle. However he says the primary purpose of selling a repossessed vehicle is not to receive a commercial benefit. He says the primary purpose is to comply with the obligations under the CCCF Act. He says that he is able to obtain a better price for a repossessed
84 Shorter Oxford English Dictionary (6th ed, 2007) vol 1 (A-M) Gain at [1006].
85 D Greenberg Stroud’s Judicial Dictionary of Words and Phrases Vol 2: F-O (8th ed, Sweet and Maxwell, 2012) at 1185.
86 D Greenberg Jowitt’s Dictionary of English Law Vol 1: A-I (4th ed, Sweet and Maxwell, 2015) at 1055 citing Re Arthur Average Association for British, Foreign and Colonial Ships Ex p. Hargrove & Co (1875) L.R. 10 Ch. App. 545n at [546]-[547n] per Jessel MR.
87 D Hay (ed) Words and Phrases Legally Defined Vol 1: A-K (4th ed, LexisNexis NZ, Wellington, 2007) at 1014.
88 Registrar of Motor Vehicle Traders v Daniels [2017] NZDC 10155 is a decision in the District Court which determines that a number of sales made by Mr Daniels were not for “gain”.
vehicle than if he is required to sell the vehicle through a registered motor vehicle trader. This is to the debtor’s benefit because his debt to MTF Lower Hutt is reduced.
[94] I do not accept Mr Kenny’s submission. I consider it conflates the purpose or object of selling the vehicles with the manner in which he must sell them. Mr Kenny makes a decision to sell the vehicle when he elects to enforce his enforce his security. He does so because he considers that is commercially advantageous to him to do so in order to recoup all or (more usually) some of the outstanding loan. The sale of the vehicle is for the primary purpose of “gain” (or a commercial benefit) to him.
[95] Mr Kenny contends the gain was to the debtor because the debt was reduced. This is because, regardless of how much is achieved in the sale, the debtor remains liable to MTF Lower Hutt for the balance of the debt owing. However, MTF Lower Hutt must regard repossession and sale as a commercially advantageous way to obtain repayment. It is not required under the hire purchase agreement to use this method of enforcement yet it is the method of enforcement it uses. That the debtor also benefits from the sale in the sense that their debt is reduced, does not alter the fact that MTF Lower Hutt also benefits.
[96] Once MTF Lower Hutt decides to gain this commercial improvement to its position from the sale of the motor vehicle, it must carry out the sale in accordance with the CCCF Act. The requirement to take reasonable care to obtain the best price reasonably obtainable for the vehicle is not inconsistent with and does not override MTF Lower Hutt’s obligations under the MVS Act to either register as a motor vehicle trader or to sell through another registered motor vehicle trader.
[97] I have given this issue careful consideration. If Mr Kenny is correct that he can obtain a higher price for the vehicle if he is not subject to the MVS Act, then it is unclear to me why the perceived benefits for a buyer of a sale by a registered motor vehicle trader should outweigh a debtor’s interest in a sale method that gives him or her the opportunity of achieving the highest price for the vehicle (and therefore the greatest reduction of their debt achievable). This is especially unclear to me when buyers are informed that they are buying the vehicle without the advantages provided by the MVS Act (namely the consumer information notice and access to the Motor
Vehicle Disputes Tribunal) and buyers are nevertheless happy to “trade” with the finance company on TradeMe on this basis. In such circumstances it is difficult to see what purpose the MVS Act is serving.
[98] The extent to which consumer goods, including vehicles, are traded on TradeMe and the New Zealand public’s comfort with that was probably not foreseen when the MVS Act was enacted.89 However any changes because of this are for Parliament. On the words of s 8(1)(b), in light of the narrowing of the protection for finance companies in s 9(1)(h), and the Act’s stated purpose, I am unable to conclude that Mr Kenny’s sales are not within its terms.
Result
[99] Mr Kenny sought a declaration that a finance company selling repossessed motor vehicles is not selling motor vehicles for the primary purpose of gain and reward. For the above reasons I decline to grant that declaration. If there is any issue about costs, the parties have leave to make brief submissions (no longer than five pages) about this within two weeks of the date of this judgment. However my preliminary view is that costs should lie where they fall. The issue is a difficult one and Mr Kenny has acted responsibly in bringing this proceeding in order to have the matter determined.
Mallon J
89 As is indicated by the need to remove “car market operator” from the scope of the MVS Act.
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