Commerce Commission will be receiving a letter - Cars On Demand

**rustic101** · 16th June 2010, 20:10

I looked at a bike on Tardme - Ok so it was a HD, but hey.

Asked the guy a question as was sure I had seen some posts about this trader on here, none of which were positive... Needed to find out for myself.

You will see the question and reply detailed below. He has failed to answer one question around MTA membership and clearly this chap has no idea of Consumer Law. As a result I will be contacting the ComCom tomorrow and contacting the dealer directly.

My Question

Hey there Team, I note you say "The above motorcycle is been sold via auction so therefore is strictly sold on an as is where is basis". Are you an MTA member? If something went wrong after purchasing would I still have rights under the Fair trading Act, Consumer Guarantee Act? Cheers rustic101 (83 ) 8:50 pm, Tue 15 Jun

Their Reply

Hi there, you have no rights when something is sold via auction. This is why it is such a popular method of selling. I would think been four years old and only having travelled 4000 k/m there would be plenty of trouble free riding here. Thanks 9:01 pm, Tue 15 Jun

http://www.trademe.co.nz/Browse/List...x?id=296952917

**vindy500** · 16th June 2010, 20:34

cool story

**Mully** · 16th June 2010, 20:43

Maybe I'm an idiot (don't answer that), but, umm, what's the problem?

CGA doesn't apply to auctions or tenders. That's why a lot of dealers move trade-ins at $1R

Frosty could confirm, but I think he's only got to supply clear title. Nothing else.

**rustic101** · 16th June 2010, 20:55

Online auctions and the law

It's a muddy area. Goods bought at auction or competitive tender are not covered by the Consumer Guarantees Act.

Instead, auctions are covered by the Auctioneers Act, passed in 1928, which prohibits any unlicensed person from conducting an auction. But this Act defines an auction as a sale in the presence of six or more people, in a place accessible to the public, where a licensed auctioneer bangs his gavel to signal its completion. Obviously the Act did not envisage the possibilities of the internet. Thus online auctions do not fit the statutory definition of what an auction is. We're calling for an urgent update to the laws to recognise this new way of doing business.

Currently, your rights will depend upon whether you are buying from a one-off, private seller or from a professional trader.

Buying from a private seller

Online auctions where you buy from a one-off, private seller are regarded as "private sales". You have limited protection, since private sales are not covered by either the Fair Trading Act or the Consumer Guarantees Act.

However, contract law does apply: for example, the seller can't refuse to supply, or supply the wrong thing; and buyers must pay up.

You may also have some protection from the Contractual Remedies Act, but you'd need to be able to prove that:

you bought an item based on information provided by the seller, and
that information provided by the seller was wrong, and
the false information provided by the seller meant you have lost money.
The terms and conditions on any auction site will be binding unless they contravene your statutory rights.

Buying from a professional trader

Who is a professional trader?

The definition of professional trader under statutes is very broad and basically covers every regular online auction seller. It doesn't matter if you think of it as a hobby or if you've kept your day job - regular traders are professional traders regulated by law.

To get an idea if the seller is a professional trader, look at their previous sales. If they have several listings for the same type of item, or if they have sold similar items in the past, they are probably a professional trader. It doesn't matter if they think of it as a hobby or if they've kept their day job.

Your rights

In most situations, professional traders selling through online auctions have exactly the same responsibilities as people selling through traditional methods like shops or mail order. These are set out in the Fair Trading Act (FTA), Consumer Guarantees Act (CGA) and Secondhand Dealers and Pawnbrokers Act.

The Fair Trading Act

Under the Fair Trading Act:

The goods must be accurately described on the original listing and in any communications with the seller.
Price comparisons must be valid. The seller must be able to show where in New Zealand the goods sell at the claimed price. They can only make comparisons with actual retail prices, not with recommended prices or overseas prices.
Unless the price is clearly GST-exclusive, the seller cannot add GST after the price is agreed.
Sellers cannot use fine print, policies or terms and conditions to change the deal. Anything that isn't explained in the original listing can't be added later.
See our guide to the Fair Trading Act for more information.
The Consumer Guarantees Act (CGA)

The CGA only applies in an online auction when:

You buy everyday goods for personal use;
And you pay a set price or the opening price equals the Buy Now price;
And you buy from a professional trader.
If you place a bid for an item rather than buying at a fixed or Buy Now price, the CGA does not apply.

Your rights under the Act:

Sellers guarantee the goods do their designed job, are free from defects and are safe.
Importers, including small-scale and parallel importers, have the same responsibilities as manufacturers. Unless they specifically tell you otherwise before the sale, importers or NZ manufacturers guarantee to provide repair services and spare parts for a reasonable time after the sale.
See our guide to the Consumer Guarantees Act for more information.
Disputes
What if the seller lets me down?
If you don't receive the goods you've paid for, or you have a problem with a sale:

Ask the seller why - there may be a good explanation.
Inform the site administrator (they may not be able to help you, but they could ban the trader).
Post negative feedback against the seller involved.
If the other party lives in New Zealand, you can take them to a Disputes Tribunal.
You may also be able to make a complaint of criminal fraud to the police.
What if I change my mind?
In placing a bid you are making an offer. If the seller accepts, you are in a legally binding contract, and unless the product is faulty, stolen, or has a security registered against it, you will be obliged to complete the purchase.

Likewise, if you are the seller you can't just change your mind after accepting an offer on an item you had for sale.

As with any contractual situation, go into it with your eyes open. Read the terms and conditions, make sure you understand exactly what you are buying and how, use an escrow service to protect your money, and keep in touch with the person you are trading with.

**Mully** · 16th June 2010, 20:59

Okey Dokey.

So what's the problem? His Ts & Cs are pretty clear

I'm missing something, I think.

**rustic101** · 16th June 2010, 21:14

Originally Posted by Mully

Okey Dokey.

So what's the problem? His Ts & Cs are pretty clear

I'm missing something, I think.

I guess he has flat out refused to acknowledge that if something did go wrong I would be screwed..

**Mully** · 16th June 2010, 21:16

Originally Posted by rustic101

I guess he has flat out refused to acknowledge that if something did go wrong I would be screwed..

Ah, gotchya.

I'm picking you what you're putting down.

Well, keep us in the loop about what Com Com say.

**davereid** · 16th June 2010, 21:22

Originally Posted by rustic101

Their Reply

[INDENT]Hi there, you have no rights when something is sold via auction. This is why it is such a popular method of selling.

Seems to me he has made it pretty clear that if you place a bid, and buy it through the auction process, that he will offer no guarantee, and you have no rights.

I'd treat it with caution !

Good luck with the ComCom.

**rustic101** · 16th June 2010, 21:53

Will do,

It makes me angry that traders on TM claim you have no rights. I mean its always buyer beware. However I firmly believe in keeping people honest. Searching TV archives as the whole question was on either Fair go or Target or similar..

TradeMe do not care either way (in some respects quite rightly so as they are the median) as they get their commission. However ethically I believe they have a responsibility to also keep people honest.

**AllanB** · 16th June 2010, 22:40

It's acar dealer - probably trade it in.

Looks like a nice ride and for $8k or so a good buy!

What I find weird about sales like this - needs a new battery - he'd get dealer pricing so for maybe $100 it would be good to go. FFS stick a battery in it!

**ynot slow** · 16th June 2010, 22:45

My bike was traded in,the mechanic said motors great,shocks need new oil etc,discs on front replacing,rear disc marginal.They stuck it on trademe for $1200 or so and as is.Aquestion asked was would it get a wof(expired)?Answer was yes(but didn't supply what might be needed,as wasn't asked).

**p.dath** · 17th June 2010, 07:22

I don't know the trader or their history, but their response seems straight up to me. They just want to get rid of stock. I don't think there is any deception.

**onearmedbandit** · 17th June 2010, 08:53

I remember when I was a dealer, we sold a 1997 Legacy GTB wagon in white with declared flood damage on TM. On our auction we advertised the issues with the vehicle, that it had failed compliance, and that it most likely would never be road legal (costs outweighed value), and that it would be best suited for parts. At the time a normal example of this vehicle was retailing for around $12,000, and we sold this one to some lady up north for under $5000. A couple months later we recieve notice of legal action, reports on the damage to the vehicle, and a bill to get the vehicle road legal that she wanted us to pay. It turns out that a friend or someone had suggested that putting the car on the road would be a simple affair. Luckily we had a copy of the TM ad, and a quick word from our lawyer to hers soon had her back tracking at 100mph.

Moral to the story. Buyers are fucking liars. Car/bike dealers have to follow the letter of the law (yes not all do), whereas Joe Public can act in any underhanded way they want, and will always have the support of the general pubic because they are up against a dealer.