A claim by a Tongan teenager that a car dealer in Auckland was responsible for the NZ$13,000 she gave its employee on Wednesday 18 September 2013 has been dismissed on February 14.
Ngaluafe Rowena Kavaliku claimed she gave the money to Kolio (as the name appeared in the tribunal order but also known as Kelekolio Tapueluelu) of GM Cars to purchase a 2007 Black Mazda Axela.
She said Kolio later asked for further $1,500 and felt pressured to pay this.
The disputes tribunal in Auckland has found no documentation from Kavaliku to show payment for a car apart from a record of a bank withdrawal they made on 18 September 2013.
Kavaliku claimed that when the car was delivered a few days later it was not the Mazda but instead was a Honda Fit.
The tribunal believed Kolio was not an employee of GM Cars but instead was acting as Kavaliku’s agent when given the money and being instructed on what price to get the car.
GM Cars denied claims by Kavaliku that Kolio was an employee.
Kavaliku declined to accept the tribunal’s requests to join Kolio as party to the prosecution.
The GM Cars told the tribunal there was no Black Mazda Axela registered on their yard and there was no sale recorded.
They said the Honda Fit was traced to Prime Motors in Greenlane and that it was purchased from there and that was proof GM Cars had no dealings in this matter, the tribunal was told.
GM Car’s witness, Kolio was the person that the applicant dealt with when buying the car.
Kolio said that he, the applicant and her mother, Teuila (as the only name appeared on the tribunal order) visited three car yards on Wednesday but did not buy anything.
Kolio said he and Teuila then visited Prime Motors on the Friday and that he was handed $7,000 by Teuila to purchase the Honda Fit.
Teuila told the tribunal she was not with Kolio on the Friday as she was preparing for a wedding the next day.
The Kavalikus claimed Kolio received $14,500 and has returned none. Kolio said he only received $7,000 and returned nearly all of it when he returned the Honda Fit to Prime Motors.
As there were no evidences or receipts provided by either party and as their version of events are so dissimilar it is difficult to determine which version of events is more likely to be correct, the tribunal order says.
At the end of the second hearing the applicant produced a recording of the conversation held at the GM Cars premises in which they said that Kolio confirmed receiving $14,000.
The tribunal order says this recording was on a DVD disc and would need to be played in front of all parties. The applicant brought this recording with the intention of presenting it as evidence however left till 11.28am when the hearing had started at 9.15am and all parties were aware as early as 11.05am when advised by the chairperson to raise any further evidence.
Should the recording support the applicant’s claim that Kolio had acknowledged receiving $14,500 then this would be in direct conflict with his evidence to the tribunal at both hearings that he received only $7,000, Referee P McKinstry said.
The applicant’s position was that she and her mother gave Kolio money and he has not returned it. Assuming that the recording shows that Kolio’s evidence was inconsistent then that may go some way to a determination that the applicant’s position was more likely to have been the case, the tribunal said.
However the applicant has not brought their claim against Kolio, they have instead chosen to claim only against GM Cars Wholesalers Ltd. The claim against GM Car Wholesalers required that applicant showed on the balance of probability that Kolio has not returned the money she said he was given and that GM Car Wholesalers was responsible for Kolio’s actions. Failure to prove either point would be fatal to her claim, the tribunal said.
The applicant was asked on numerous occasions whether she wished to join Kolio as a party to the proceedings however on each occasion declined to join Kolio. This in spite of the fact that the applicant’s claim arises from what she says was kolio retaining her money.
Kolio and GM Cars
Both GM Cars and Kolio said that Kolio is a freelance car finder for the purchasers and that he visits a number of yards acting for purchasers. They say he is not an employee.
The tribunal found no evidence to the contrary and having heard GM Cars and Kolio on this point it found that Kolio was not an employee of the GM Cars.
Kavaliku, the applicant, said they contacted Kolio after seeing his picture and name in a full page advert for the GM Cars in a Tongan Newspaper. She said that she took this to be that Kolio was an employee of GM Cars. She also said that when at the GM Cars’ yard she gained the impression that Kolio was an employee by the way the transaction was completed.
GM Cars told the tribunal the advert was arranged and paid for by Kolio with their permission and that he was not an employee.
On its own, said the tribunal, the advert shows good evidence that the applicant was introduced to Kolio through the advert itself and that he was held out to be an employee and that she belived he was an employee.
However the advert was not the only evidence on this point. When completing the claim form the applicant said, “my mother approached Kolio Tapueluelu – a family friend who we knew worked in car sales”.
The tribunal order says this seems inconsistent with the applicant becoming aware of Kolio though the advert.
It also came out in the hearing that the applicant’s mother was in a relationship with Kolio prior to the purchase of the car. The applicant’s mother says this was started after seeing the advert however the claim formed suggests that Kolio was approached as a family friend, not through an advert.
GM Cars told the tribunal the applicant never dealt with their staff until after the problem happened among the Kavalikus and Kolio.
Having considered the evidence on this matter presented by the parties the tribunal said it did not believe that the Kavalikus have showed on the balance of probabilities that she relied on the advert as holding Kolio out to be an employee of GM Cars.
It was just as probable that Kolio was acting as the Kavalikus’ agent when being given the money and being instructed on what price to get the car.