Car dealer escapes penalty despite advertising ‘misleading’ Porsche details

A man who spent $47,500 on Porsche advertised as a newer model than it actually was has lost his bid to get a refund.

Wen Han purchased a Porsche Panamera from dealer Sunday Ltd in October 2020 and then attempted to return it after discovering the car represented as 2015 model was actually manufactured in 2012.

Han was forced to take the matter to the Motor Vehicle Disputes Tribunal after failing to get a refund from the dealer.

Han said that the Trade Me listing for the vehicle described it as a 2015 Porsche Panamera, and the vehicle offer and sale agreement and Consumer Information Notice described it having a vehicle year of 2015.

Sunday Ltd denied liability, saying that the representation of the vehicle as a 2015 model was not misleading because that was when the car was first registered in New Zealand.

The tribunal made its decision by looking at the requirements of the Fair Trading Act.

Section 42 of the Act provides that when a seller offers a description of goods to a consumer, it should correspond with what those goods actually are.

It found that the vehicle described as a 2015 Porsche Panamera on the Trade Me listing did meet the rules outlined in section 42 of the Act because the vehicle’s registration in New Zealand was made in 2015.

However, the tribunal also referred to section 9 of the Act, which provides that no person shall engage in conduct that is likely to mislead or deceive the buyer.

“A representation may be true but nonetheless misleading,” the adjudicators at the tribunal found.

“I consider that representation that the vehicle was a 2015 Porsche Panamera was misleading. A reasonable consumer would have understood the representations made by Sunday Ltd to mean that the vehicle was also manufactured in 2015, or if not manufactured in 2015, manufactured in 2014.

“A reasonable consumer would not have expected the vehicle described as a 2015 Porsche Panamera to have been manufactured in June 2012.”

The adjudicators accepted Sunday Ltd’s claim that it did not know the vehicle was actually manufactured in 2012, but added that an absence of knowledge is not a defence.

“By representing that the vehicle was a 2015 Porsche Panamera, Sunday Ltd has, albeit inadvertently, engaged in conduct that breached section 9 of the Fair Trading Act.”

This finding alone did not entitle Han to a refund.

Under the Act, he still needed to show that he had suffered loss or damage due to the misrepresentation.

To show damages, Han presented the tribunal with a range of Porsche Panameras from years earlier than 2015 to show that he had overpaid for the vehicle.

He alleged he had suffered a loss of between $6500 and $22,000.

The adjudicators found that the evidence provided was insufficient to prove his losses.

“The four comparison vehicles identified by Mr Han do not provide a like for like comparison.

“They are all in unknown cosmetic and mechanical condition, were all manufactured in a different year from the vehicle purchased by Mr Han and have different mileage, accessories and, in two instances, a different sized engine from Mr Han’s vehicle.

“At best, the information presented by Mr Han shows that other Porsche Panameras, manufactured in a different year, with different mileage, accessories and engine size could have been purchased for less than he paid for his vehicle, but that is not evidence to prove that he paid more for his Porsche Panamera than it was worth.”

The adjudicators said more reliable evidence would have included having the vehicle valued by a recognised motor vehicle valuer or a Porsche franchise.

Given Han was unable to show he suffered loss, his application was dismissed. Han is reportedly pursuing an appeal of the decision.

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