Buyer Claims Damages from Vendor of Motor Car

Pinzon v Kamardine (Civil Claims) [2022] VCAT 530 (12 May 2022)

The parties are in dispute over the sale of a motor car.  The buyers did not know that the car they bought as listed on the Victorian Register of Written-Off Vehicles.  The seller asserts that it is the buyer's responsibility to inquire about the car and that the seller should not pay the price for the buyer's negligence.

Facts:

On 11 August 2021, the applicants, Jennifer Pinzon and Brayan Maldonado, purchased a 2015 model KIA Sportage motor car from the respondent, Mr Nizar Kamardine (also known as Nizar Kamar Dine), for the sum of $14,500.  The respondent was not a licensed motor car trader.  The respondent had purchased the car in a damaged state with the intention of fixing it up for sale.  Shortly after they purchased the motor car, the applicants learned that it was listed on the Victorian Register of Written-Off Vehicles.  This fact had not been disclosed prior to the sale. 

The applicants subsequently contacted the respondent and requested a full refund of the purchase price.  They received no reply and commenced this proceeding.  The applicants alleged that, by failing to disclose that the motor car was listed on the Register of Written-Off Vehicles, the respondent has contravened the prohibition against engaging in misleading or deceptive conduct contained in s 18 of the Australian Consumer Law (Vic.) [the ACL]; and/or committed an actionable misrepresentation at common law.  The respondent, in his Points of Defence, stated that Jennifer did not fulfill her responsibility of checking that the car is not stolen, has no money owing on it, is not on the written-off vehicles register, and that it is registered.  The respondent also alleged that he had handed a transfer of registration form to Ms Pinzon ‘which clearly marked that the vehicle had been written-off’. 

Issues:

I. Whether or not the vendor’s failure to disclose that the motor car was listed on the Victorian Register of Written-Off Vehicles constituted a contravention of s 18 of the ACL and/or a misrepresentation at common law.

II. Whether or not the sale of car constituted a private transaction or a transaction in trade or commerce.

III. Whether or not the applicants contributed to their loss.

Applicable law:

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 - relied upon in holding that the respondent’s conduct contains sufficient system and regularity, in the pursuit of financial profits, to constitute a business.

Demagogue Pty Ltd v Ramensky [1992] FCA 557 - relied upon in holding that in these circumstances there must exist, at the very least, a “reasonable expectation”.

Henville v Walker (2001) 206 CLR 459 - held that the defence of contributory negligence is not available to claims based on misleading or deceptive conduct. 

Baltic Shipping Co. v Dillon [1993] HCA 4; (1993) 176 CLR 344 - relied upon in holding that the Tribunal has no jurisdiction to determine claims for loss of reputation while the claims for mental distress were not supported by certificates under Part VBA of the Wrongs Act 1958.

P E Kafka Pty Ltd v Hermitage Motel Pty Ltd [2009] FCAFC 94 - provides that the measure of loss and damage under s 236 of the ACL is the difference between the price paid and the market value of the goods.

Analysis:

The respondent conceded that he had engaged in the business of purchasing damaged cars to on-sell them for a profit.  He had done this on ‘a couple of times - five or ten times’.  Generally, the law does not require a party to a sales transaction to volunteer information that will be of assistance to the decision-making process of the other party.  However, liability may still be incurred when a party to the contract makes an express representation that may be true (or strictly so) but which, nevertheless, creates a false impression because of what it leaves unsaid. 

The vendor made a representation which gives the impression that all the car’s owners had carefully looked after it and that the car’s condition reflected this history of exemplary care.  In reality, the car’s condition was quite different.  It had been “written-off”.  It was registered as a write-off.  Furthermore, the defence of contributory negligence is not available to claims based on misleading or deceptive conduct. 

Conclusion:

The respondent, Nizar Kamardine (also known as Nizar Kamar Dine), must pay to the applicants, Jennifer Danitza Calvo Pinzon and Brayan Alexis Garavito Maldonado, the sum of $8,000.  The Tribunal orders that the respondent, Nizar Kamardine (also known as Nizar Kamar Dine), must reimburse the applicants, Jennifer Danitza Calvo Pinzon and Brayan Alexis Garavito Maldonado, the application fee of $66.30.