Preiss v Vermeulen
[2025] NZHC 1396
•30 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-002082
[2025] NZHC 1396
BETWEEN JAQUES PREISS
Plaintiff
AND
KARL VERMEULEN
First Defendant
LOUISE VERMEULEN
Second DefendantMEREDITH CONNELL LIMITED
Third Defendant
Hearing: 8 May 2025 Appearances:
A Nair for the Plaintiff
J W H Little for the First and Second Defendants No appearance for the Third Defendant
Judgment:
30 May 2025
JUDGMENT OF ASSOCIATE JUDGE COGSWELL
This judgment was delivered by me on 30 May 2025 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................
Solicitors:
Churton Hart & Divers, Auckland Meredith Connell, Auckland
Nair & Associates, Auckland J W H Little, Auckland
PREISS v VERMEULEN [2025] NZHC 1396 [30 May 2025]
Introduction
[1] The plaintiff is a collector and vendor of postage stamps. He sold stamps through a TradeMe account with the name “aussiegirl23”.
[2] The first and second defendants were interested in stamps. They purchased thousands of stamps from the plaintiff over a 15-month period during 2021 and 2022. I refer to them as “the defendants” in this decision.
[3] The third defendant is no longer involved in this proceeding, a matter I deal with later.
[4]The stamps purchased by the defendants were purchased in two tranches:
(a)individual or groups of stamps purchased from the plaintiff through his TradeMe account. These are referred to as the “Tranche 1” sales in this decision.
(b)the later sale of two complete stamp albums, described as the “Blue Album” and the “World War II Overprint Album”. These sales were not made through the plaintiff’s TradeMe account, they were direct sales to the defendants. I refer to this sale as the “Tranche 2” sales in this decision.
[5]The sums paid to the plaintiff were substantial. In total, the defendants paid
$234,642.85 to the plaintiff.
[6] Later, the plaintiff sent two further stamp albums to the defendants for their review and possible purchase. I refer to this as the “Tranche 3” transaction.
[7] The Tranche 3 albums were sent to the defendants for them to review and, if they were interested, to purchase. No payment was made before they were delivered to the defendants. This arrangement did not occur through the plaintiff’s TradeMe account. It took place directly between the plaintiff and the defendants.
[8] Before the defendants had made a decision on whether to buy the Tranche 3 albums, they were contacted by William Carson, an expert. He told them that the plaintiff’s stamps were “highly suspect” and that many of them were “fake”.
[9] This advice was subsequently supported by a further philatelic expert, David Holmes, whose advice was similar. Mr Holmes has said in regard to one album there is “a large number of reprints or forgeries” and “the higher value stamps are either fakes or reprints”. He further identified a large number of the stamps as “obvious forgeries”.
[10] Given their substantial investment to date, this was unwelcome news for the defendants.
[11]This resulted in two things happening:
(a)the defendants demanded their money back for all the stamps they had purchased from the plaintiff; and
(b)the defendants retained possession of the later two stamp albums that had been provided to them by the plaintiff but not yet paid for.
[12]Proceedings followed.
The proceedings
[13]There are before the Court two applications:
(a)an application by the plaintiff for summary judgment seeking orders for the return of the Tranche 3 albums retained by the defendants, together with damages; and
(b)an application by the defendants for leave to file summary judgment, and if granted, an application for summary judgment seeking a full refund of the purchase price of all the stamps they had previously bought from the plaintiff in the Tranche 1 and Tranche 2 sales.
The plaintiff’s application for summary judgment
[14] Between the hearing of the plaintiff’s application for summary judgment and this decision, the parties reached agreement that the Tranche 3 albums be returned to the plaintiff.
[15] A joint memorandum recording the plaintiff’s agreement was filed, and records the plaintiff’s undertaking to the defendants and this Court that:
The plaintiff undertakes, on behalf of himself and his wife, Sarie Pr[ei]ss, that neither of them will make any claims for damages or other pecuniary relief in respect of the two Stamp Albums that are the subject of the plaintiff’s application for summary judgment against the defendants or Meredith Connell. That undertaking is made to the Court and to first and second defendants, and extends, for the avoidance of doubt, to:
(a) claims of the type formerly made in the statement of claim prior to its amendment on 7 May 2025, including at [23], which will not be made again in any forum;
(b) claims for damage to or diminution in value of the Stamp Albums, including while in the possession of the first and second defendants and Meredith Connell;
(c) claims that may exist now or which may arise or be made in the future, including following the return of the Stamp Albums to the plaintiff and in respect of the storage of the stamps.
[16] In view of the plaintiff’s withdrawal of all claims for damages in the proceeding, and the provision of undertakings recorded in the joint memorandum of 14 May 2025, the defendants withdraw their opposition to delivery up of the Tranche 3 albums to the plaintiff.
[17] Currently, the Tranche 3 albums are held by Meredith Connell lawyers, in accordance with a direction of the Court of 15 October 2024 at order [5](b).1
Result of plaintiff’s application for summary judgment
[18]I make the following orders by consent:
1 Preiss v Vermeulen HC Auckland CIV-2024-404-2082, 15 October 2024.
(a)the order made by the Court on 15 October 2024 at [5](b), that Meredith Connell lawyers retain possession of the Tranche 3 stamp albums is discharged;
(b)the defendants are to deliver up the Tranche 3 stamp albums to the plaintiff forthwith; and
(c)costs are to be determined.
The defendants’ application for leave to file summary judgment
[19] The defendants seek leave in accordance with r 12.4(3) of the High Court Rules 2016 to file a summary judgment application seeking judgment for the full amount of the stamps purchased by them.
[20] Leave is required because they did not file their application for summary judgment at the time their statement of defence was filed.
[21] Rule 12.4 enables the Court to grant a party leave to apply for summary judgment after the date that the statement of claim (or in this case, the counterclaim) is served. The Court has summarised the correct approach as follows:2
Each application must, in my opinion, be considered in light of the objective of the High Court Rules, to secure the just, speedy and inexpensive determination of any proceeding and the Court must take into account the interests of the party applying, the party against whom the application has been made, and in a case where there are other parties who are not parties to the application, their interests, to the extent that they are relevant.
[22] The merits of the proposed application are relevant to the exercise of the discretion, as is the purpose of summary judgment, being “to avoid prolonged proceedings when the matters at issue are capable of summary disposition”.3
[23] For the reasons that follow, I consider that the defendants’ claims are capable of summary disposition. The delay in seeking summary judgment is minimal. There
2 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd [2015] NZHC 592 at [34] endorsing
Corbans Viticulture Limited v Waihopai Valley Management Ltd [2012] NZHC 2799 at [60].
3 Waihopai Valley Vineyard Ltd v Savvy Vineyards 3550 Ltd, above n 2, at [34]–[35].
is no prejudice to the plaintiff arising from the brief delay in seeking summary judgment.
[24]I grant the defendants leave to file their summary judgment application.
The defendants’ application for summary judgment
[25] The defendants seek summary judgment for $234,642.85, being the price paid for the Tranche 1 and Tranche 2 stamps.
[26] They say that the plaintiff’s failure to meet the guarantee incorporated into all sales is a breach of contract. The relief sought is damages of $234,642.85, interest under the Interest on Money Claims Act 2016 from 23 December 2022 to the date of judgment and costs.
[27] As a corollary of that relief, the defendants must be taken to agree that, if judgment is granted, they have to return the Tranche 1 and Tranche 2 stamps to the plaintiff.
[28] They seek damages for the breach of the money back guarantee they say applies to all of their purchases from the plaintiff. They say that that is what was offered by the plaintiff and that the guarantee became a term of all of their dealings.
[29] The key issue for determination is whether the terms of the guarantee are incorporated into all sales between the parties.
[30] It is not in dispute that the guarantee was not given for the Tranche 2 purchases as they were conducted directly between the parties and not through TradeMe which is where the guarantee was offered.
[31] The defendants say that the guarantee applies to all sales in both the Tranche 1 and Tranche 2 sales.
[32] The plaintiff denies that and denies that the effect of the guarantee is that the defendants have an unconditional right to return all the stamps they purchased from
him. He says that the defendants have to prove the stamps they wish to return are forgeries. The defendants say that they have the right to return the stamps with “no questions asked”.
[33]The circumstances of the guarantee are as follows.
[34] The defendants purchased all of the Tranche 1 stamps through the plaintiff’s TradeMe account. The vast majority, but not all, of those sales contained the guarantee.
[35] The guarantee was expressed as “[n]o questions refund, and/or take it back. Your satisfaction is what I care about the most.”
[36] The defendants say that the guarantee provides that if they were not satisfied, for any reason, they can call on the guarantee and the plaintiff must return their money. They do not have to establish cause, the guarantee is unconditional.
[37] The defendants say that the guarantee is not directed to the specific item being advertised, rather it appears as part of the general description of the vendor and his policies and terms when selling his stamp collection to the public.
[38] They say that the guarantee does not prevent the purchaser returning the stamps if they change their mind or after a certain period. Nor, they say, do they need to have good reason to return stamps, because the guarantee is a “no questions refund” guarantee.
[39]It is not in dispute that:
(a)the vast majority of the Tranche 1 sales were conducted with the TradeMe guarantee displayed;
(b)the Tranche 2 sales were not conducted through TradeMe and did not have the guarantee expressly incorporated into those transactions.
[40] It was in the period between the time when the defendants had purchased the Tranche 2 stamps from the plaintiff and when they were reviewing the Tranche 3 stamps that the defendants received the advice from Messrs Carson and Holmes. They made it clear that their opinion was that many of the stamps purchased were valueless forgeries.
[41] The defendants engaged lawyers. In December 2022 they demanded a full refund of the purchase price of the stamps acquired from the plaintiff, on the basis of the “no questions asked” guarantee contained in the majority of the plaintiff’s Tranche 1 sales.
[42] Correspondence then ensued with denials and debate between the parties, the plaintiff denying knowingly selling forgeries, demanding return of the Tranche 3 stamps which were retained by the defendants and offering to provide a refund for those stamps which the defendants could demonstrate were forgeries.
[43] This later proposal was not acceptable to the defendants, because the cost of authenticating the stamps was prohibitive. I am told by counsel that it costs around NZ$75 per stamp to authenticate a stamp. As the defendants held thousands of stamps, that process was disproportionately expensive.
[44] The position as it stands is that the defendants seek a full refund of the stamps acquired by them under both the Tranche 1 and 2 sales. They say they do not need to authenticate any stamp, because the terms of the guarantee were an unconditional promise that the plaintiff offered a full money-back guarantee on the basis, “no questions refund and/or take it back. Your satisfaction is what I care about the most.”
[45] The defendants say that that guarantee became a term of every sale between them and the plaintiff. That is, the guarantee was incorporated into any Tranche 1 sale that did not expressly include the guarantee wording and was incorporated into the Tranche 2 stamp sales as well, as a result of the dealings between the parties.
The issues
[46]There are two issues for determination.
[47] The first issue is whether the terms of the guarantee are incorporated into all sales between the plaintiff and the defendants.
[48] The second issue is whether the defendants are entitled to a full refund on the “no questions asked” basis without proof that the stamps are forgeries or whether there is any other basis on which the plaintiff can resist the guarantee obligation.
First issue
Are the terms of the guarantee incorporated into all of the transactions between the parties?
[49] The terms of the “no questions asked” guarantee may be incorporated into the sales by the parties’ course of dealing or by implication.
[50] The defendants submit that an express term can be “incorporated into a contract as the result of an inference arising from the prior conduct of the parties”,4 including where they have engaged in a prior course of dealing.
[51] The defendants rely on Henry Kendall & Sons v William Lillico & Sons Ltd.5The parties in that case had engaged in frequent prior transactions, when an issue arose out of three oral contracts as to whether the terms and conditions (including, relevantly, an exclusion) were incorporated into the terms of the arrangements between them, notwithstanding that the later and “in issue” transactions were oral.
[52]The House of Lords held that the terms formed part of the oral agreements:6
In the present case, SAPPA had regularly received more than a hundred similar contract notes from Grimsdale in the course of dealing over three years. They knew of the existence of the conditions on the back of the contract note. They
4 Stevenson Brown v Montecillo Trust [2017] NZCA 57 at [27], citing La Rosa v Nudrill Pty Ltd
[2013] WASCA 18 at [43].
5 Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 (HL).
6 At 113.
never raised any query or objection…The court's task is to decide what each party to an alleged contract would reasonably conclude from the utterances, writings or conduct of the other. The question, therefore, is not what SAPPA themselves thought or knew about the matter but what they should be taken as representing to Grimsdale about it or leading Grimsdale to believe. The only reasonable inference from the regular course of dealing over so long a period is that SAPPA were evincing an acceptance of, and a readiness to be bound by, the printed conditions of whose existence they were well aware although they had not troubled to read them. Thus the general conditions became part of the oral contract.
[53] The dealings between the parties were not of a one-off or even occasional basis. The plaintiff sold the defendants a large number of stamps from August 2021 to December 2022. There were many transactions.
[54] In relation to the actual number of transactions, the defendants purchased stamps in the Tranche 1 sales:
(a)with the guarantee wording from the plaintiff through his TradeMe account in a total amount of $89,547.40; and
(b)without the guarantee wording from the plaintiff through his TradeMe account in a total amount of $20,095.45.
[55] The defendants say that their position that the guarantee was incorporated into all their dealings with the plaintiff is supported by the fact that:
(a)the guarantee was expressed on the TradeMe advertisements as being a general policy of the vendor, rather than being confined to the specific item advertised;
(b)the guarantee appeared on the very first advertisement, that is, the advertisement that commenced the trading relationship with the defendants;
(c)the sheer number of times the advertisement was repeated in the sales to the defendants, expressed as “the promise was repeated over time”,
thereby making it implausible that the plaintiff was able to limit the guarantee to only some TradeMe transactions.
[56] As to why the defendants are entitled to have the guarantee wording incorporated into the Tranche 2 transactions, the defendants note that:
(a)The sale of the “Blue Album” on 18 February 2022 for $100,000 took place in the context of the 298 sale transactions which immediately preceded this sale on TradeMe, only three, or one per cent of which did not include the wording.
(b)The sale of the “World War II Overprint Album” on 16 September 2022 for $25,000 took place in the context that all 197 transactions prior to this sale going back to 23 June 2022 included the guarantee wording. Of the 1,124 transactions which preceded this sale, going back to 13 January 2022, only 12 (or one per cent) did not include the guarantee wording.
[57] It follows from this that the vast majority of transactions occurred with the guarantee wording specifically attached to them.
[58] For the other transactions, I find that the terms of the guarantee were incorporated into the transactions between the parties as a result of the dealings between them. Had the plaintiff not wished to provide his guarantee on any particular sale or tranche of sales he could have made it expressly known to the defendants that the guarantee did not apply to that or those transactions. He did not, content instead to allow the defendants to proceed on an assumption that all sales were subject to the guarantee.
[59] The defendants say that, as in Henry Kendall, the “only reasonable inference from the regular course of dealing” preceding the Trance 2 sales is that the plaintiff, in offering to sell these albums, was “evincing an acceptance of, and a readiness to be bound by, the guarantee”.7
7 Henry Kendall & Sons v William Lillico & Sons Ltd, above n 5, at 481–482.
[60] Standing back and looking at the number of transactions taking place between the parties and the lack of any exclusion of the guarantee terms in the later sales, I consider that the only conclusion is that all sales incorporated the guarantee wording used by the plaintiff. I find that all of the Tranche 1 and Tranche 2 sales were subject to the guarantee given by the plaintiff.
[61] The Contract and Commercial Law Act 2017 implies a term into a sale contract that if sold by description, there is an implied condition that the goods will correspond to the description.8 By implication, the plaintiff’s sales by description implied that the stamps being purchased were genuine.
[62] A breach of this condition gives the purchaser the right to treat the contract as repudiated.9 Although not specifically pleaded, this would be a further route to a remedy for the defendants.
Are the terms of the guarantee implied into all of the transactions between the parties?
[63] The defendants submit as an alternative that the terms of the guarantee could be implied into the terms of the contract between the parties.
[64]I do not consider that the defendants can succeed on this ground.
[65] It is not necessary to give business efficacy to the sales contracts to imply the guarantee wording into them.
[66] Whilst the guarantee may have given additional comfort to purchasers, it was not required in order to give business efficacy to the contract. The contract could operate effectively without it.
8 Section 136.
9 Contract and Commercial Law Act, s 132(1).
[67] I do not consider that the test in BP Refinery, as recently approved in Bathurst, is met regarding the implication of the guarantee into the dealings between the parties.10
Result on the incorporation of the guarantee into the transactions between the parties
[68] I find that the terms of the guarantee are incorporated into all of the transactions between the parties on the Tranche 1 and Tranche 2 sales.
Second issue
[69] The next issue is whether the defendants are entitled to insist on a full refund of the stamps without having to prove that the stamps are forgeries, or whether there is any other basis on which the plaintiff can resist the guarantee obligation.
[70] The defendants made demand on the plaintiff for a full refund of the amounts paid by them for the stamps they purchased from the plaintiff.
[71] The plaintiff denied knowingly selling forgeries and contended that the defendants had to prove the stamps as forgeries before a refund was payable. He also argued that it was then too late to call on the guarantee even if it applied.
[72]The guarantee is expressed in clear terms, without exclusions or conditions.
[73] The defendants say that, unlike some money-back guarantees, the wording does not prevent the purchaser from calling on the guarantee simply because they change their mind, or after a certain period. Nor do the words require the purchaser to provide a good reason for seeking a refund; to the contrary, “no questions” can be asked. The purchaser’s satisfaction was said to be “most important”.
[74] The plaintiff argued that any refunds were subject to mutual agreement based on “specific circumstances”. Those specific circumstances were not explained.
10 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696, citing BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266, (1977) 16 ALR 363 (PC) at [107]–[116].
[75] The words of the guarantee are not limited in any way. There are no further terms applying, no “fine print”. The guarantee is what it says it is, a no questions asked promise to refund.
[76] On the plain wording of the guarantee, it was clearly intended that any person dealing with the plaintiff was to have the comfort that should they, for whatever reason, wish to return the stamps they purchased from the plaintiff, that they could seek a refund with no questions being asked.
[77] This was a “no cause” guarantee. It was unconditional. The purchaser could require the money to be refunded to them by returning the stamps they had previously purchased.
[78] The plaintiff has sought to characterise himself as an unsophisticated trader against whom any ambiguity in the guarantee wording should be resolved in his favour. He says that he did not intend the guarantee to have the broad effect the defendants contend for.
[79]I do not accept that submission.
[80] The plaintiff has given no evidence about the overall extent of his dealings through TradeMe or otherwise beyond his dealings with the defendants. Even looking at that relationship, it is easy to conclude that this was a substantial undertaking by the plaintiff, and that it is not unfair to hold him to the wording of the clear guarantee terms that he offered to the public when selling his stamps.
[81] I take the view that the defendants were entitled to return the stamps to the plaintiff without having to demonstrate that they were forgeries. That is, a “no cause” guarantee.
[82] Even if I was minded to consider that the defendants had to establish some ground on which they relied to return the stamps, I consider that the defendants had sufficient evidence in the form of Messrs Carson and Holmes’ advice that some or all of the stamps were forgeries.
[83]At the end of the day the question is where the risk lay.
[84] It is not reasonable to expect the defendants to spend many thousands of dollars authenticating the stamps purchased from the plaintiff, in circumstances where the plaintiff offered them to the public on a “no questions asked” refund basis.
[85] The defendants had good grounds to raise concerns about the stamps they had purchased. They do not need to establish definitively by expert evidence that the stamps were forgeries.
[86] In further resisting the guarantee obligation, the plaintiff submitted that it was now too late for the defendants to seek the refund of all of the purchases from him. He suggested that the guarantee only applied for a “reasonable time”, arguing that the request for refund had occurred outside of that period.
[87] The defendants say that if the plaintiff wished to impose time limits into his guarantee, or any other limitation for that matter, he should have done so. Whilst noting that a broad guarantee as offered creates risk for the vendor, it also has positive effects on purchasers. It reduces the perceived risk of dealing with the plaintiff online, because the defendants were able to do so in the knowledge that they were dealing with a merchant that was confident enough in his product that he was willing to sell it on the basis of a broad, “no questions asked” guarantee.
[88] The plaintiff, in correspondence with the defendants, stated that a refund period of “30 days is stipulated for refunds by NZ law”. The plaintiff was unable to point to the specific provision that set out that as a requirement in New Zealand law.
[89] What is a reasonable time is a question of fact.11 The demand for a refund occurred promptly on receipt of the advice that the stamps were forgeries. I consider that to be a reasonable time in the context of the significant financial investment the defendants were making in the plaintiff’s product, on the basis of the unconditional guarantee that he was offering to the market.
11 Contract and Commercial Law Act, s 199(2).
[90] I find that the defendants met their obligation to make demand within a reasonable time of discovery of the issues.
[91] It follows that I consider that the plaintiff does not have an arguable defence to the defendants’ claim.
[92] The defendants are entitled to judgment for a refund of the amounts they paid to the plaintiff on their Tranche 1 and Tranche 2 purchases. They must return the Tranche 1 and Tranche 2 stamps to the plaintiff.
[93] The return of the Tranche 1 and Tranche 2 stamps to the plaintiff will allow him to review and resell those of the stamps he considers he is able, on whatever terms he sees fit. He can, that way, mitigate his losses by resale.
Result of defendants’ application for summary judgment
[94]I order:
(a)leave is granted to the first and second defendants to make their application for summary judgment;
(b)there is judgment in favour of the first and second defendants on their claim for a full refund of the amounts paid by them to the plaintiff, in the amount of $234,642.85;
(c)the first and second defendants are to deliver up the stamps purchased by them in the Tranche 1 and Tranche 2 sales to the plaintiff; and
(d)the first and second defendants are entitled to interest under ss 9 and 10 of the Interest on Money Claims Act 2016 from 23 December 2022 to the date of judgment.
Costs
[95] Should any party seek costs against the other, they are to file costs submissions of no more than five pages (including appendices). Any party resisting a costs application is to respond to that application within five working days, with a memorandum of no more than five pages (including appendices).
[96]Any costs application will be determined on the papers.
Associate Judge Cogswell
0
6
0