MISREPRESENTATION - CAUGHT AND FORCED TO REFUND

WHAT HAPPENS WHEN REALITY DIFFERS FROM THE AD! 

CHRISTCHURCH, NZ - Refund ordered as rare classic car declared a lemon


Here's a story for the books:

A man who bought a classic sports car advertised as "one of the five best restored" versions in the world has been awarded his money back from the dealer.

Classic car collector and restorer Terry Cartwright of Christchurch, New Zealand, saw the 1958 Berkeley SE328 for sale on "Trade Me" in October 2013 for $12,500.

The ad proclaimed this was "one very rare car" and included a quote from the 1989 British Berkeley Owners Club Yearbook: "This car is without doubt one of the best five restored Berkeleys in the world and could quite possibly be the best restored four-wheeler in the world."  The ad went so far as to say "nothing has changed" since the Yearbook's statement was made and was accompanied by two photographs.

Berkeley Cars produced small three-wheeled cars (Berkeley T60) and four-wheeled cars (the Sa322, Se328, Se492, B95 and B105) between 1956 and December 12, 1960. Berkeley also produced several other model cars in small numbers, namely the Foursome, a four-seat, four-wheeler and a T60/4 a four seat three-wheeler.

The cars were considered generally attractive vehicles, especially the soft-top versions which are the most common model.  Manufactured primarily of fiberglass with aluminum bulkheads and either steel or aluminum chassis sections for added strength and were powered by engines based on motorcycle engines.

The car was advertised by Levin, NZ car dealer Denis O'Neill. Cartwright then reportedly phoned O'Neill and asked if the Berkeley looked as good as it appeared in the photos, and was told it did.  He (Cartwright) also asked if the Berkeley went "all right" (we assume that is another way of asking "does the car run well") and was told it did. Cartwright then bought the car sight unseen and had it shipped to him.

When the car arrived, Cartwright immediately contacted O'Neill expressing his disappointment that the spare wheel panel was missing, the rear seat was missing and the car didn't run well.  Furthermore, there was a problem with the vehicle's clutch and it had a replacement engine installed.

Cartwright emailed O'Neill as few days later, noting a number of additional problems including "perishing" tires, a "crazed" paintjob, leaking oil and overheated when he tried to drive it. "I don't think it (the Berkeley) matched your description as being one of the best restored Berekelys (sic) in the world!" 

On December 24th, Cartwright sent O'Neill a lengthy email outlining the faults and flaws with the car, and asked him to take the car back and refund his money. O'Neill responded with a request for photos showing the missing panels and noted the tires had passed a warrant of fitness inspection. At this point, Cartwright filed a complaint with the Motor Vehicles Disputes Tribunal.

Although O'Neill argued before the Tribunal he sold the car as a private sale and not as a dealer, the Tribunal found the transaction had been made with his role as that of a dealer/trader.

In its ruling, the Tribunal said the advertisement's claim that the Berkeley was "one of the five best in the world" and that the statement "nothing had changed since 1989" was factually incorrect as the original engine had been replaced with another engine with different specifications. 

The Tribunal accepted Cartwright's evidence as to the mechanical problems with the vehicle. "Bearing in mind the various problems, the Tribunal is satisfied that the trader's representations about the Berkeley were misleading." it proclaimed. It also agreed that at least one (and possibly three) tires did not meet the warrant of fitness standards.

O'Neill told the tribunal he thought the Berkeley was in the same condition as reported in the 1989 yearbook because it looked the same. He did not undertake any mechanical inspection.

"Statements of opinion are not misleading if there is a sound factual basis for the opinion provided," the decision said. "The tribunal is not persuaded that there was any sound foundation for the trader's opinion in this case. The trader did not undertake any mechanical inspection of the Berkeley before advertising it for sale and made no inquiries to determine whether the condition of the Berkeley was the same as it was in 1989." 

The tribunal ruled that O'Neill refund Cartwright's $12,500 purchase price and take the car back.

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