Refund ordered as rare classic car was a lemon


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.

The car was found to be missing parts, have rough bodywork and a replacement engine.

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

The advertisement said it 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 advertisement said "nothing has changed" since that description was made.

The advertisement had two photos of the car.

Berkeleys were small sports cars made in Britain in the 1950s and powered by engines based on motorbike engines.

A ruling from the Motor Vehicles Disputes Tribunal said the car was advertised by Levin car dealer Denis O'Neill.

Cartwright phoned O'Neill and asked him if the Berkeley looked as good as in the photos and was told it did. He also asked if the Berkeley went "all right" and was told that it did.

Cartwright bought the car sight unseen and it was shipped to him. When it arrived, he immediately contacted O'Neill noting his disappointment that a panel to cover the spare wheel and rear seat was missing and that the car did not run well, including a problem with the clutch, the decision said.

"I don't think it really matched your description of the one of the best restored Berekelys (sic) in the world," he emailed O'Neill a few days later, going on to note a number of problems including perished tyres and "crazed" paintwork.

The car was leaking oil and overheated when he tried to drive it.

On December 24 Cartwright sent O'Neill a lengthy email outlining the faults with the car, and asked him to take the car back and refund the money.

O'Neill responded by asking for photos showing the missing panel was part of the car and noting that the tyres passed a warrant of fitness inspection.

Cartwright then lodged a complaint with the tribunal.

O'Neill argued before the tribunal that he had sold the car as a private sale and not as a dealer. However, the tribunal found that the sale had been by a 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 nothing had changed since 1989 was factually incorrect, as the original engine had been replaced with another engine of different specifications.

The tribunal accepted Cartwright's evidence as to the mechanical problems with the Berkeley.

"Bearing in mind the various problems, the tribunal is satisfied that the trader's representations about the Berkeley were misleading," it said.

"The statement that the Berkeley was one of the five best restored Berkeleys in the world gave the impression that it was in tip-top condition when it was not. It had significant mechanical problems, was missing a panel, had at least one (and possibly three) tyres that did not meet warrant of fitness standards, had 'crazing' on its bodywork, and a different engine."

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 money and take the car back.