IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1076 [2015] NZHC 315

BETWEEN	MERCEDES-BENZ FINANCIAL
SERVICES NEW ZEALAND LIMITED Plaintiff	

AND	
DESMOND JAMES ALBERT CONWAY Defendant	

Hearing:	5 February 2015	

Counsel:	
S O'Grady for the Plaintiff
E St John for the Defendant	

Judgment:	
27 February 2015	

JUDGMENT OF MUIR J

This judgment was delivered by me on 27 February 2015 at 4.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Simpson Western, Takapuna, Auckland
Sladden Cochrane & Co, Wellington

MERCEDES-BENZ FINANCIAL SERVICES NZ LTD v CONWAY [2015] NZHC 315 [27 February 2015]

Introduction

[1]       The  plaintiff  seeks  summary  judgment  against  the  defendant  on  three agreements identified as “consumer credit contracts” (“CCCs”) in respect of Mercedes-Benz motor vehicles.

[2]       The defendant resists that application on the grounds that the plaintiff has failed to comply with notice provisions under the Property Law Act 2007 (“PLA”), which he says has the result that the plaintiff is unable to accelerate the “balloon” payments  specified  in  the  contracts  and  is  liable  to  him  in  conversion  for  the unlawful repossession of two of the motor vehicles (the plaintiff has been unable to locate the third which remains in the defendant’s possession).

[3]       For reasons apparent from this judgment, the principal issue is whether there is adequate evidence, for summary judgment purposes, of either the plaintiff having acquired title to the relevant motor vehicles from the Wellington based dealer with whom the defendant dealt or, at least, of the defendant having never acquired title to the same.

Background

[4]       The three CCCs are in identical form.  The first two are numbered 44710 and

47254 respectively.  The third (as exhibited) is not numbered but was subsequently allocated the number 46631.

[5]       Each contract identifies the defendant as the borrower.

[6]       Contract 44710 is dated 2 February 2011 and relates to the financing of a

2011 Mercedes-Benz S63 sedan (“the sedan”).  It provides for a price of $456,152.04 payable by 48 monthly payments of $6,378.18 with a balloon payment of $150,000 to be paid contemporaneously with the last instalment.

[7]       The second agreement (number 46631) is dated 6 July 2001.  It relates to a

2011 Mercedes-Benz  ML63  SUV  (“the  SUV”).    Again  there  are  48  monthly

payments with a balloon payment due with the last instalment.   The total amount payable is $253,807.84.

[8]       The third contract (number 47254) is dated 30 August 2011 and relates to a

2011 Mercedes-Benz SLK200 Cabriolet (“the cabriolet”).   Again it provides for

48 monthly  instalments  and  a  balloon  payment  for  a  total  amount  payable  of

$117,097.76.

[9]       In the latter part of 2013 the defendant defaulted on the monthly instalment payments in respect of all three vehicles.   Subsequently the plaintiff served pre- possession notices on the defendant under s 8 of the Credit (Repossession) Act 1997 (“CRA”) notifying the default and requiring payment within 15 days of service.  The default was not remedied.

[10]     On 29 October 2013 the plaintiff repossessed the vehicles under contracts

44710 and 47254 and on 1 November 2013 served post-possession notices on the defendant under s 20 of the CRA requiring either payment of arrears or payment of the net balance due under the contracts.  The defendant did neither despite a stated intention to do so at the time.

[11]     On 25 November 2013 the plaintiff notified the defendant of its intention to sell the vehicles under these two contracts at auction.  It recovered $112,437.43 in respect of the sedan and $52,014.23 in respect of the cabriolet leaving, as amounts outstanding under the respective contracts, $132,991.89 and $15,090.57.   Demand was made in those amounts and post-sale notices under s 33 of the CRA given.  The plaintiff seeks judgment accordingly.  In addition the statement of claim (but not the application for summary judgment) seeks solicitor and client costs under the relevant contractual provision.

[12]     In  respect  of  the  SUV,  repossession  attempts  were  unsuccessful  and  the current location of the vehicle is unknown.  The plaintiff suggests it may have been exported to Japan where the defendant has business interests.   The plaintiff seeks judgment for the amount outstanding under the contract ($158,881.32) and collection costs of $1,088.83 (totalling $159,881.32).   In addition, it seeks interest on that

amount at the default rate of 22.5 per cent specified in the relevant contract.   The costs position is as detailed above.

Principles of summary judgment

[13]     I  adopt  the  well-recognised  principles  stated  by  the  Court  of Appeal  in Krukziener v Hanover Finance Ltd.1   In particular, I must be satisfied that there is no real question to be tried, that is I must be left without any real doubt or uncertainty.

The contractual framework

[14]     The defendant was a customer of Ingham Motors Wellington Ltd trading as

Wellington Star, a local Mercedes-Benz dealer.

[15]     In   respect   of  each   of   the  three  vehicles   he  exhibits   (via  deponent Mr Kooiman) a document entitled “Vehicle Offer and Sale Agreement” (“VOSA”) on that company’s letterhead.   The documents specify the price of each vehicle, trade-in allowances as applicable, the amount of deposit or cash paid on delivery (in each case nil) and the amount financed (the full purchase price in respect of the cabriolet and that price less trade in allowances for the sedan and SUV).

[16]     The  forms  of  the  agreements  are  not  identical.    In  particular,  under  the heading  “Consumer  Guarantees  Act  1993”  there  is  a  statement  in  respect  of the sedan not present in respect of the other vehicles, namely:

The  purchaser  has  advised  that  the  vehicle  is  being  used  for  business purposes and the provisions of the Consumer Guarantees Act 1993 does not apply to this transaction.

[17]     In relation to the sedan and the cabriolet the person “offer[ing] to purchase the  vehicle”  is  described  as  the  defendant  (or  in  the  case  of  the  cabriolet  the defendant or his nominee).  In respect of the SUV that party is identified as Nipponz Privee Ltd.

[18]     In respect of all vehicles the documents identify a balance due as financed by

Mercedes-Benz Financial Services over a period of 48 months “as per the lease/hire

1	Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].

purchase agreement annexed hereto”.2   No such agreement is annexed to the VOSAs which the defendant exhibits.

[19]     The plaintiff’s records do not include any of the VOSAs which it says were never provided to it.

[20]     The  VOSAs  further  provide,  under  the  heading  “Purchaser’s  Offer  and

Agreement”:

Retention of Title	I  understand  that  this  purchase  is  subject  to  the retention of title clause overleaf.

[21]     The reference to “overleaf” appears to be to the terms and conditions which the defendant exhibits to the VOSA in respect of the sedan. That document provides, under the heading “Security Interest”:

Ownership in the vehicle and accessories supplied by the Trader shall not pass to the Purchaser until the Purchaser has delivered any trade-in to the Trader’s premises and otherwise performed all obligations under this Agreement including but not being limited to making payment of the Purchase Price as required by the Agreement. …

[22]     None of the VOSAs were signed by the “purchaser” and none were signed by the dealer (identified as the “Trader”).  None are dated.  The plaintiff disclaims any knowledge of these “agreements”.  It relies on the respective “CCCs”.

[23]     In  each  case  the  CCCs  are  in  the  defendant’s  name  and  signed  by  him personally.  They are not signed by the plaintiff and in their terms are said “not to bind the lender until the lender signs it” but it is not in dispute that the contracts had been performed.

[24]     The contracts are initiated by provision of what is identified as a “Disclosure Statement to Consumer Credit Contract” which, on acceptance, becomes the contract itself. The terms of the contract are said to be those:

contained in this disclosure statement and those contained in the “Terms and Conditions – Consumer Credit Contracts issued 07/10” provided to you with this disclosure statement.

2	In regards to the VOSA for the SUV, there appears to be a typo in that it says “489 months”.

[25]	The terms and conditions which are incorporated by reference are two pages in length.  Relevantly for present purposes, they provide:

1.1       the provisions contained in these terms and conditions issued (07/10) (Consumer Credit Contract General Terms) – the Consumer Credit Contract and the Disclosure Statement provided to you with these terms and conditions – Consumer Credit Contract (Disclosure) are together incorporated in and form a part of a Contract between you and the Lender (Contract).

…

5.6	Rights Waived

You agree:

(b)        That  nothing  in  ss  114(1)(a)(to  receive  notice  of  sale  of goods), 116 (to receive a statement of account), 117(1)(c) (to receive any surplus), 119 (to recover any surplus), 120(2)(to receive notice of proposal to take goods), 133 (to reinstate security agreement) and 134 (limit on reinstatement) of the PPSA will apply to this Contract or security interest under this Contract.

5.7	Ownership of vehicle

You agree that legal and beneficial ownership of the Vehicle remain with the Lender until you have paid all amounts owing to the Lender by you under this Contract.

…

6.3       You shall pay to the Lender all costs and expenses including all legal costs and expenses incurred on a solicitor/own client basis, and all disbursements (including any duties or taxes) sustained or incurred by the Lender in relation to the preparation, negotiation of, and entry into this Contract, each waiver or consent in of, and each amendment to this Contract, the registration and discharge of any security in relation to this Contract and the exercise, protection or enforcement by the Lender of its rights under this Contract or in suing for or recovering any amounts owing to you under this contract.

…

8.3	Interest on overdue payments

You will immediately pay interest on any amount that is overdue for payment  under  this  Contract  (including  any  accrued  interest  or Credit Fees and Charges) at the Default Interest rate specified in the Disclosure Statement.3

[26]     The only relevant default rate in terms of the prayers for relief is that under contract 46631 where the default rate is specified at 10 per cent above the annual interest rate of 12.5 per cent.

[27]     On acceptance of the finance proposals, and at least in the case of the SUV, the plaintiff forwarded a confirmation of approval to the dealer.4    This requested, among other things, that the dealer provide “copy of invoice or Vehicle Sale and Offer Agreement made out directly to client”.  It specified in the case of the SUV that it be “registered in personal name”, consistent with the plaintiff’s understanding that this was a consumer credit contract arrangement.  The plaintiff says it received invoices but not the VOSAs.

[28]     On receipt of confirmation of finance the dealer has, in each case, generated a

document entitled “Tax Invoice”.  I refer to this document in greater detail in [45](b).

[29]     In an affidavit dated 18 November 2014 (which I received without opposition from Mr St John for the defendant), Ms Elaine Yee Leng Woon deposes, on behalf of the defendant, that the invoices in question were, in each case, sent to the plaintiff by the Wellington Star dealership and that the plaintiff then made payment against them. The invoices were not provided to the defendant.

Relevant statutory provisions

[30]   There are currently three different statutory notice requirements for the repossession and subsequent sale of secured goods. They are:

(a)	The CRA which applies to “consumer goods”;

(b)	The Personal Property Securities Act 1999 (“PPSA”) which applies to

all secured goods other than consumer goods; and

(c)       The PLA – which contains additional notice requirements which apply to “mortgages over goods” but not to “consumer goods” to which the CRA applies.5

[31]     The argument proceeded on the basis that:

(a)       If the CRA applied, its notice provisions had been complied with, with the result that summary judgment would be available against the defendant;

(b)       If the PPSA applied then, the notice provisions in that Act having been contracted out of (cl 5.6(b) of the CCCs), summary judgment would again be available.   It would seem, in any event, that the PPSA’s notice provisions had been complied with.   They are  slightly less onerous than those under the CRA in that a pre-possession notice does not have to be given.   Otherwise they are materially the same;

(c)       If the PLA applied, then the relevant notice provisions had not been complied with and summary judgment would not be available given reasonably arguable defences in relation to the balloon payments and reasonably arguable counter-claims relating to conversion of at least two of the vehicles.

[32]     I address first whether the vehicles were consumer goods and specifically exempted from the PLA regime.  In my view that proposition is sufficiently arguable that summary judgment could not safely be entered in favour of the plaintiff for the following reasons:

(a)       Although each of the credit contracts are in the name of the defendant personally and there is not otherwise anything on the face of them to suggest a purchase for business purposes, it is clear that the dealer had
contrary information at least in respect of the sedan and the SUV.

5	PLA, s 77.

(b)       This emerges from the fact that the VOSA in respect of the sedan recorded that the “purchaser has advised the vehicle is being used for business purposes” and the fact that the same document in respect of the SUV identified the person “offer[ing] to purchase the vehicle” as a business, Nipponz Privee Ltd.

(c)       I regard as reasonably arguable Mr St John’s proposition that the dealer was, at relevant times, acting as agent for the plaintiff and that the plaintiff is accordingly fixed with the dealer’s knowledge in this respect.  Discovery can be expected to elucidate that issue.

(d)       In  respect  of  the  SUV,  the  position  would  need  to  be  further considered in light of the plaintiff’s initial registration of its security interest against the company Nipponz Privee Ltd.  In its affidavit in reply it says it only did so to protect its position while it raised with the dealer why the vehicle had not been registered to Mr Conway personally.  It says that the vehicle registration subsequently reverted to Mr Conway and it re-registered its security.   To that extent, the circumstances around the temporary registration may ultimately support its understanding of the consumer status of the goods. However, in my view, it would be unsafe to conclude that there was no real issue to be tried in this respect.

(e)       In respect of contract 47254 ( the cabriolet) the VOSA is in the name of Desmond Conway or nominee.   I do not regard that as itself connoting a purchase for business purposes however Mr Kooiman deposes (in an affidavit of which Mr Conway confirms the accuracy) that its status as such was “declared by Mr Conway at the time of purchase”.  Unlike the sedan there is no specific notation in the VOSA that the purchaser has advised the vehicle is being used for business purposes.    Inferences  may  ultimately  be  available  from  that  fact. There is however a statement in terms:

Consumer Guarantees Act 1993

It is a condition of sale that the consumers Guarantees Act 1993 will not apply to any Goods or Services acquired for business purposes. To the extent permissible by law the provisions of the Consumers Guarantees Act 1993 do not apply to this Agreement.  Any warranty is restricted to that warranty (if any) provided by the manufacturer of the vehicle.

While the first sentence of this clause is neutral as to the purpose to which the vehicle is being applied, I agree with the defendant that the second and third do suggest a business purpose through specific exclusion  of the Consumer Guarantees Act  protections.   Taken  in combination  with  the  evidence  as  to  what  was  “declared”  by Mr Conway to the dealer there is sufficient uncertainty as to preclude summary judgment in respect of this vehicle also.

PLA – does it apply?

[33]     Section 78 of the PLA states that the provisions of the Act are supplementary to those of the PPSA in the case of a security interest which constitutes a “mortgage over  goods” and  that  the PPSA shall  prevail  in  the event  of any  inconsistency between the two Acts.

[34]     The phrase “mortgage over goods” appears in both ss 128 and 132 of the Act. The  plaintiff  submits,  and  the  defendant  agrees,  that  in  respect  of  the  notice provisions set out in s 156 of the Act, these only apply to security interests which constitute a mortgage over goods.

[35]     The term “mortgage” is defined in s 4 of the PLA in the following terms:

Mortgage includes –

(a)	any charge over property for securing the payment of amounts or the performance of obligations; and

(b)	any registered mortgage; and

(c)	any mortgage arising under a mortgaged venture.

[36]     In   Mercedes-Benz   Financial   Services   New   Zealand   Ltd   v   Quadrant Wholesalers  Ltd  &  Anor,6   Associate  Judge  Smith  concluded  that  the  phrase “mortgage over goods” should be interpreted in the traditional sense of a security interest granted by the owner of the goods.  He did so relying on commentary to that effect by the learned authors of Gault on Commercial Law7 and Heath and Whale on Insolvency.8     He noted the plaintiff’s submission in that case that such an interpretation makes sense because if the term “mortgage” was interpreted so as to include any security interest, then the provisions of the PLA would always apply and
there would be no point having two separate notice regimes, one in the PLA and one in the PPSA.9    He also observed that this traditional approach appeared to be consistent with certain  definitions in s 4 of the PLA, noting, for example, that “mortgagor” is defined to mean a person who is “the owner of property that is subject to a mortgage” and “current mortgagor in relation to a mortgaged property” means a mortgagor who was “currently the owner of the property”.  I agree with this
analysis and no issue was taken with it by Mr St John.

[37]     I return then to the central issue in this case, which is whether there is any real doubt or uncertainty that the plaintiff acquired and retained title to the motor vehicles and the corollary proposition whether there is any reasonable argument that the defendant in fact acquired title to the goods.  If that inquiry is resolved against the defendant then there can be no answer to the summary judgment application because there can be no real question to be tried in terms of the potential application of the PLA notice provisions.  Conversely, if I am left with real doubt or uncertainty in that respect summary judgment should be declined and the matter proceed to trial
in the normal way.

6	Mercedes-Benz Financial Services New Zealand Ltd v Quadrant Wholesalers Ltd [2014] NZHC
814.
7	Thomas Gault (ed) Gault on Commercial Law (online looseleaf ed, Brookers) at [8A.6.01(3)(a)].
8	Justice Paul Heath and Michale Whale (eds) Heath and Whale on Insolvency (online looseleaf ed, LexisNexis) at [25.4].
9	Mercedes-Benz Financial Services New Zealand Ltd v Quadrant Wholesalers Ltd, above n 6, at
[30].

Did the plaintiff acquire property in the goods?  Did the defendant?

[38]     It was on these issues that the defendant substantially focused his argument, both in the written submissions prepared by his previous counsel and Mr St John’s oral argument.  Significant emphasis was placed on the unsigned VOSAs which, it was submitted, were used by the dealer to comply with legislative requirements under the Motor Vehicle Sales Act 2003.

[39]     The defendant says that his offer to “purchase the vehicle” in each of the VOSAs is inconsistent with the proposition that the vehicles were at  any stage purchased by the plaintiff and that the plaintiff has not otherwise adequately proven a sale of the vehicles to it.  He submits that cl 5.7 of the CCCs whereby the defendant agreed that the beneficial ownership in the vehicles will remain with the plaintiff until he had paid all amounts owing to it under the contract is irrelevant unless it is proven that the plaintiff had title to retain in the first place.

[40]     Developing that argument Mr St John says that the documents in evidence are consistent with payment by the plaintiff to the dealer on behalf of the defendant with the defendant in turn acquiring title to the goods and the plaintiff acquiring a security interest over them.  In that event he submits the PLA would apply.

[41]     The same defence appears to have been raised on similar documents, and in the context of a claim by the same plaintiff in the proceeding before Associate Judge Smith.10

[42]     His Honour rejected that argument stating”:11

Mr Fuller did produce a copy of an undated form of the Vehicle Offer and Sale Agreement which named Quadrant as the party offering to purchase, but this document itself contained a retention of title clause which apparently provided that title in the vehicle would remain with either the plaintiff or the

10         Mercedez-Benz Financial Services New Zealand Ltd v Quadrant Wholesalers Ltd, above n 6. It is acknowledged that in that case three of the four contracts were written on the plaintiff ’s business contract form so no issue arose in that respect in terms of the potential application of the CRA, but that distinction is irrelevant to the issue addressed in this part of the judgment.
11         At [39]. His Honour refers in this paragraph and in [38] to the dealer having issued an invoice to the plaintiff.  The terms of that invoice are not set out in the judgment.  Earlier at [17] and [19] there  is  reference  to  the  original  invoice  having  been  “made  out  to  Quadrant”  and  the replacement invoice having shown Mr Fuller as “borrower/purchaser”.

dealer, and the dealer invoiced the plaintiff for the vehicle on 10 July 2007. The plaintiff duly settled with the dealer on that date and Mr Fuller subsequently entered into the  consumer  contract  in which  he  personally acknowledged delivery of the vehicle.   The retention of title cl 5.7 in the terms and conditions ensured that title to the vehicle at all relevant times remained with the plaintiff.   The fact that the vehicle may have been registered in the name of Quadrant does not affect that conclusion.

[43]     I note however that there was no appearance in that case for the defendant and Associate Judge Smith did not therefore have the benefit of opposing argument.

[44]     I have come to the conclusion that the case for application of the PLA is sufficiently arguable that  summary judgment  should  be declined  and  the matter proceed to trial.  I do that reluctantly given the apparent similarity of the case to that before Associate Judge Smith, while acknowledging that on the specific documents before him a different conclusion may well have been available.  My reluctance is compounded by the defendant’s decision both to suspend payments in respect of the SUV and to frustrate recovery attempts.

[45]     The reasons for that conclusion are as follows:

(a)       Although in respect of each of the vehicles the plaintiff received a document headed “tax invoice” and made a payment against it to the dealer and although that would ordinarily raise a presumption that the vehicle had been sold to the plaintiff by the dealer, there are contrary indicators;

(b)       For a start, the invoice is not made out to the plaintiff.  It is not in fact made out to any party.  But it does specify immediately under the date the defendant’s address and is stated to be “on account Desmond Conway”.   Although the document may have been provided to the plaintiff and not the defendant, that notation is consistent with (or at least not inconsistent with) the analysis of the transaction advanced by Mr St John at [40] above;

(c)       At least in respect of the SUV, the dealer generated another invoice

called  a  “New  Vehicle  Tax  Invoice”  in  which  the  party  both

“invoice[d] to” and “deliver[ed] to” is identified as Nipponz Privee Ltd  at  110  Owhino  Bay Parade,  Owhino  Bay, Wellington.12     The prospect  that  this  invoice  was  used  to  obtain  a  GST  refund  for Nipponz Privee Ltd of $25,832.61 cannot be discounted, although on the plaintiff’s case this same vehicle had been sold to it.  Again, there are  real  issues  as  to  the  dealer’s  knowledge  and  what  might  be
imputed to the plaintiff.

(d)       It is significant that the one confirmation of finance Ms McQualter exhibits to her affidavit in reply13 (for the SUV) requests the dealer to supply a “copy of Invoice or Vehicle Sale and Offer Agreement made out directly to client”.14    Arguably the phrase “made out directly to client” qualifies both of the alternatives before it.  At a minimum the request recognises a “sale” to the “client” which in this case can only be the defendant.  Such a sale is inconsistent with the sale the plaintiff now says was effected in its favour;

(e)       Although  the  VOSAs  are  unsigned  and  undated  that  does  not necessarily preclude their contractual force in that the defendant’s evidence is that they embody the transactions entered into and there is no contrary evidence from the dealer.   Their terms are in parts consistent  with  the  argument  Mr St John  advances  and  as  to  the balance at least not inconsistent;

(f)	In terms of consistency there is the fact that in each of the documents

the defendant or his company “offer[ed] to purchase the vehicle”;

(g)       A potential contrary indicator is that the VOSAs contain a retention of title clause in the terms set out in [20] above.  Whether that retention is  in  favour  of  the  dealer  or  the  plaintiff  (which  the  defendant
elsewhere in the document acknowledges is financing the transaction)

12         This document was for reasons unexplained omitted from the plaintiff ’s “Bundle of Relevant Documents  for  the  Hearing”  but  appears  as  exhibit  MK6  to  Mr  Kooiman’s  affidavit  in opposition dated 15 July 2014.
13	Affidavit of N M McQualter in reply dated 29 August 2014, Exhibit D.
14	Emphasis added.

is not stated.  In Mercedes-Benz Financial Services New Zealand Ltd v Quadrant Wholesalers Ltd,15 Associate Judge Smith suggested both alternatives were available.   However in the annexed terms and conditions there is reference to “repossession by the Trader” which points to a retention in favour of the dealer;

(h)       If that is the case then the clause does not in my opinion preclude Mr St John’s argument.   The relevant provisions are set out at [21] above.  These recognise that on performance by the purchaser of all obligations under the agreement including payment of the purchase price, property will pass.   But there is nothing to say that payment could not be made by the plaintiff on the defendant’s behalf with the result that property passed to the defendant with a mortgage back to the plaintiff.  In such event the PLA would appear to apply (assuming the vehicles were not consumer goods);

(i)        Ms   O’Grady   submits   that   there   need   not   be   a   meticulously documented sales transaction between dealer and plaintiff and that I might readily infer an oral agreement to that effect.  Given the various contradictions and lacunae in the documents, an oral agreement of that nature  should  have  been  the  subject  of  particularised  evidence  of which there was none.   Evidence from the dealer might have been expected. Again there was none.

(j)        From the plaintiff ’s perspective the high water mark is the defendant’s acknowledgement  in  cl  5.7  of the CCCs that legal  and  beneficial ownership in the vehicles “remains” with the plaintiff.

(k)       Ms O’Grady did not invoke the doctrine of estoppel in relation to this provision but it seems to me that it is in that context that it is most logically analysed.  The current approach is to consider all types of
estoppel  as  part  of  a  single  overarching  principle16   the  essential

15	Above n 6.
16	John Burrows, Jeremy Finn  and  Stephen Todd  Law of Contract in  New Zealand  (4th ed,

elements of which are well established.17     Underpinning the whole doctrine is the concept of unconscionability in allowing a person to go back on his word express or implied.   Significantly there must be a clear and unambiguous representation or promise.

(l)        In  the  present  case  Mr  St  John  argues  that  if  the  plaintiff  never acquired title in the first place there is a fairly arguable point that the clause is not decisive against the defendant – the proposition being that something cannot “remain” which never was.

(m)      I  regard  that  proposition  as  sufficiently  arguable  that  summary judgment should be declined.   I do not consider the representation sufficiently clear and unambiguous as to be left with no real doubt or uncertainty.   Moreover, if the proper construction is against the defendant there remains the issue of unconscionability in his departure from the belief or expectation created.   On the facts of this case, where it seems to me at least arguable that the plaintiff has itself, or through its agent, contributed to a confused title position, such issues are, in my view, best considered within the context of a trial.

(n)       I do not, in coming to the conclusion set out in [44] above, rely on the fact the vehicles were registered to the defendant or parties associated with him.   Registration under the Land Transport Act 1998 is not determinative of ownership.   I agree with Associate Judge Smith in that respect.   There is no relevant analogy with the land title registration system.18

Summary

[46]	In terms of the test I am obliged to apply,  I am left with real doubt or uncertainty as to:

LexisNexis, Wellington, 2002) at [4.7].
17	See Connell Street Ltd v Purewal BS & JK Ltd (2010) 8 NZCPR 587 (HC) at [58].
18	Mercedes-Benz Financial Services New Zealand Ltd v Quadrant Wholesalers Ltd, above n 6, at
[39].

(a)	Whether the contracts are for the sale of consumer goods so as to preclude operation of the PLA; and

(b)	Whether the plaintiff acquired title to the goods so as to preclude a

“mortgage” analysis.

[47]     In my assessment, it is reasonably open to conclude that various documents have been called for, or produced, without proper consideration of their interrelationship   and   to   facilitate   the   individual   agendas   of   the   respective participants, as for example a possible intention on the part of Nipponz Privee Ltd to obtain a GST refund on the full purchase price of the SUV which would not be available if the vehicle had been sold by the dealer to the plaintiff as the plaintiff
contends was the case.19   To what extent the respective participants were aware of or

co-operated in these potentially conflicting agendas will no doubt be explored at trial.  For present purposes however I confine myself to the observation that there are, in my view, too many inconsistencies and gaps within the documents for summary judgment to be an appropriate remedy.

Result

[48]     I decline summary judgment on all causes of action.

[49]     I direct that the matter be allocated a first case management conference at the first available opportunity with a view to settling a timetable for interlocutories and allocating a trial date.

[50]     I reserve costs.

Muir J

19	Indeed the GST refund would logically be claimed by the plaintiff – something which it does not depose to having sought.