The Motor Vehicle Disputes Tribunal has dismissed a woman's complaint about a second-hand BMW she bought. Photo / 123rf
A woman who tried to return her second-hand BMW, claiming it “had been falsely advertised as a luxury vehicle when it was not”, has failed to get her money back.
Ina Kara-France was initially happy after paying $12,000 for the 2012 BMW 320i in October 2024, emailing to thank The Parking Lot for the “wonderful car and professional service”.
But within days of the sale, she returned the car for repairs and cancelled the purchase, complaining about the brakes, tyres, windscreen wipers and rust.
Kara-France claimed she bought the car in good faith but had been “ripped off”. She said the car didn’t match the description, was not of an acceptable quality and wasn’t delivered on time or in an acceptable condition.
She sought a full refund of the purchase price, $50,000 for compensation for trauma, anxiety and economic loss, and reimbursement for costs, including having to hire rental cars and take taxis.
The car dealer disputed Kara-France’s claims, saying that a contract had been formed and he was not obliged to repair every minor defect, but had been willing to do so.
Before the hearing, he’d even offered a refund, which was declined.
He’d obtained evidence that one part of the car, which was in dispute – a window scuttle – was still functional but could be repaired for aesthetic purposes.
In a recently released decision, the Motor Vehicle Disputes Tribunal dismissed most of Kara-France’s claims, finding the dealer, The Parking Lot, neither refused nor failed to remedy the issues.
According to that decision, Kara-France claimed the car was falsely advertised as a luxury vehicle when it was not, and photographs of it misrepresented the car’s true condition.
But the car’s listing, provided by The Parking Lot’s director Daniel Pearson, showed it was advertised as a “turbo luxury edition” and was photographed about a month before the sale.
Upon seeing the Trade Me listing, Kara-France contacted the car dealer and sought a pre-purchase inspection, which found the engine was rattling when it was started and suggested further investigation was required.
It also found the front and rear suspension gaiters were torn/missing and should be replaced. The four tyres were perished and should also be replaced.
Upon receiving the report, The Parking Lot made inquiries with two mechanic workshops about its findings, but was told the only one that could affect its warrant of fitness (WOF) was the tyre tread depth, but the car met current WOF standards.
According to the decision, Pearson spoke to Kara-France that day to discuss the report and its findings and, notwithstanding the tyres, she wanted to proceed with the sale.
Soon after that call, Kara-France took the car for a test drive and paid for it with cash before driving away in it.
That evening Kara-France emailed Pearson, thanking him for her “wonderful car and professional service”.
But the next day, Kara-France texted Pearson to complain that the brakes were squealing.
An assessor appointed to the tribunal advised that the brakes could squeal after being driven in wet conditions because of light rust build-up, which would dissipate as the brakes were used.
The next day, October 12, Kara-France texted again, saying she wanted her money back as the car was faulty. She said she was prepared to buy new tyres but she wasn’t aware of the brakes.
When the dealer offered to have the issues looked at, Kara-France replied: “If you are prepared to repair at no cost, consider discussing a positive outcome”.
She also asked Pearson to arrange new tyres, which she would pay for.
At May’s hearing, Kara-France said that while driving in the rain, the window wipers hadn’t worked properly. She also noted the plastic scuttle panel below the windscreen was showing signs of deterioration. She also claimed there was rust under the front window screen and the bonnet.
Photos provided showed there was an issue with the scuttle panel but there was no evidence to substantiate the claim of rust.
On October 13, Kara-France purported to cancel the contract and demanded her money back, citing a section of the Consumer Guarantees Act that related to uninvited direct sales.
She also stated issues with the window wipers, brakes, and scuttle panel, saying these had contributed to her decision to cancel the contract.
Pearson responded that it was not an uninvited direct sale and the contract stood.
Discussions followed, and it was agreed Pearson would have the car checked by a mechanic and any issues attended to.
Kara-France set out various conditions and reserved the right to reject and to be refunded.
Pearson collected the vehicle and arranged for it to get its WOF, which it passed.
Kara-France emailed again, saying she was cancelling the contract under the Consumer Guarantees Act, and if she wasn’t refunded the purchase price, she would complain to the police.
She told the hearing there were 10 items she required to be fixed that had not been repaired.
Kara-France subsequently laid complaints with the police and the Commerce Commission about Pearson’s conduct, but the decision noted that neither has taken action.
In its decision, the tribunal found that some of the defects, including engine noise, front and rear suspension gaiters and the tyre tread depth, were identified in the pre-purchase inspection and weren’t hidden.
Kara-France could have negotiated for them to be remediated before she bought the car and Pearson could have negotiated a different deal if she’d wanted them remediated.
“As an informed consumer, knowing of the defects, she chose to proceed.”
Turning to the windscreen scuttle, the tribunal found that while this had deteriorated, it was still performing its function and was therefore a “cosmetic issue”.
As the car was 12 years old, the deterioration would have occurred over time, the tribunal noted.
The tribunal ruled none of those problems breached the Consumer Guarantees Act.
In relation to the brakes and the windscreen wipers, it found these issues were not evident when the car was purchased, but as hidden minor defects, they should be repaired by The Parking Lot.
Once this had been done, the car was to be returned to Kara-France.
“To avoid doubt, The Parking Lot Limited is not obliged to pay for further registration of the vehicle or a new warrant of fitness.”
Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.