Sheppard v. Jardine Auctioneers Inc.
New Brunswick Court of Queen's Bench
Trial Division
Judicial District of Fredericton
May 31, 2000
F/SC/585/98
Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.
Counsel
Ian Sheppard, on his own behalf;
Stephen Strickey, for the defendant.
This matter was heard on June 18, 1999, by Garnett, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following decision on May 31, 2000.
[1] Garnett, J.: On August 21, 1998, the Plaintiff, Ian Sheppard, purchased a 1991 Ford Taurus for $2,155.00 from Jardine Auctioneers Inc. at a public auction. Immediately thereafter the car began exhibiting transmission problems. The problem was diagnosed by Jensen's Transmission Service and the cost of repairs was estimated at approximately $1,000. Mr. Sheppard asked Jardine to either take the car back or pay for the repairs. Frank Jardine refused to do either.
[2] The Defendant, who is in the auction business, says that the cars are sold on an ''as is" basis without any implied warranties and that this fact is communicated to the buyer.
[3] The Defendant put into evidence copies of the advertisements which were circulated regarding the particular auction at which the vehicle was purchased (D1, 2 and 3). All contained the words "sold as-is, where-is and without any implied warranties". In addition, a copy of the opening remarks made by the auctioneer at the beginning of every auction included the following:
All vehicles are sold as-is, please inspect them carefully. These are used vehicles with inherited squeaks and rattles and they may require some repairs. Please allow for this in your bidding. (D-4)
(Emphasis mine)
[4] Mr. Sheppard admits seeing the signs indicating the sale was ''as is with no implied warranties". He admits also that he inspected the vehicle and drove it for a short distance within the compound. No express warranties were made.
[5] Frank Jardine testified that the market value of the car was between $4,500 and $5,000.
[6] Mr. Sheppard relies on Sections 10 and 12 of the Consumer Product Warranty Act, R.S.N.B. 1978, c. C-18.1. Those sections read, in part, as follows:
10(1) Subject to subsection (2), in every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer
(a) that the product is of such quality, in such state or condition, and as fit for the purpose or purposes for which products of that kind are normally used as it is reasonable to expect having regard to the seller's description of the product, if any, the price, when relevant, and all other relevant circumstances; and
(b) that the product complies with all mandatory federal and provincial standards in relation to health, safety and quality.
12(1) In every contract for the sale or supply of a consumer product there is an implied warranty given by the seller to the buyer that the product and any components thereof will be durable for a reasonable period of time.
12(2) In determining a reasonable period of time for the purposes of subsection (1), regard shall be had to all relevant circumstances, including the nature of the product, whether it was new or used, its use as contemplated by the seller and buyer at the time of the contract, its actual use and whether it was properly maintained.
[7] The vehicle was seven years old and had 181,485 kilometres on it. He was informed that the auctioneer was not offering any warranties and that it could "require some repairs". As it turns out, it did.
[8] I find, in the circumstances, that the vehicle was reasonably fit for its purpose. It was repairable for a relatively small amount and there is no suggestion that it was not roadworthy.
[9] I find, also, that in the circumstances the vehicle was "durable for a reasonable period of time". The Plaintiff knew that the auctioneer was not expressly warranting the condition of the vehicle. He, and his fellow bidders, were hoping to get a vehicle for less than they would normally pay. He must be taken to have accepted the risk that the vehicle "may require some repairs".
[10] The required repairs were relatively minor. In those circumstances I find the Defendant did not breach the implied warranty of durability contained in the Act. The Plaintiff's action is therefore dismissed.
[11] DATED at Fredericton, New Brunswick, this 31st day of May, A.D. 2000.
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