A Vancouver Island real estate agent has lost his bid to get back a deposit he made on a new Ford Mustang he intended to offer as a prize in a year-long 2020 race.
Duncan Provincial Court Judge JP MacCarthy dismissed the claim brought by Peter Andrew Sterczyk against DFS Motors Ltd., which does business as Island Ford.
According to MacCarthy’s June 21 ruling, Sterczyk conceived the contest — which he called “Win My Ride” — in 2019. The idea was to promote his business by entering anyone who completed a real estate transaction with him into a drawing that would gave a chance to win his vehicle as a prize.
“His plan was to acquire a new car with dealer financing in December 2019, use it in 2020 and then draw the winner on December 31, 2020, pay off the balance owed and transfer title to the winner in January 2021,” MacCarthy’s said in the ruling.
Sterczyk approached Island Ford because at the time it was running its own promotion called “Mustangs at Cost,” which promised deep discounts on new Ford Mustangs.
The real estate agent contacted Island Ford salesman Abraham Lee, who eventually sent him a window sticker for a vehicle at another dealership in the Lower Mainland that Lee offered to acquire for Sterczyk to buy, according to the ruling.
Based on the window sticker, Lee and Sterczyk agreed on an offer to purchase, and Sterczyk made a $2,500 credit card deposit, McCarthy’s ruling states.
Although Lee did not tell Sterczyk which dealership the vehicle would come from, the window sticker included the vehicle identification number, which allowed Sterczyk to look up the vehicle and find it advertised on the Surrey Mainland Ford website.
Sterczyk noticed that the vehicle listed on the website had more features than the window sticker indicated, something McCarthy concluded in his decision that neither Lee nor “any other representative” of Island Ford knew at the time. when Lee accepted Sterczyk’s deposition.
As a result of the improvements made to the vehicle at Mainland Ford, Lee informed Sterczyk that it was no longer available at the agreed price of $30,000 and began looking for alternative vehicles, according to the court order.
Sterczyk rejected three other vehicles with fewer features, arguing that the agreement he entered into was to purchase the specific vehicle with the VIN identified on the original window sticker.
He ended up taking Island Ford to court over the matter.
Sterczyk’s lawsuit seeks the return of his deposit as well as damages for the alleged breach of contract, which his attorney described in a demand letter to Island Ford as a “bait and switch.”
After summarizing Sterczyk’s argument that he felt he had the right to purchase the particular Mustang with its unexpected upgrades at the agreed price, MacCarthy overruled him.
“With the greatest respect, I find such reasoning to be without merit,” he wrote in his decision.
“I am quite certain that the plaintiff would not accept this argument (and rightly so) if it turned out that the features and accessories described on the vehicle’s original window sticker had in fact been removed from the vehicle or had been -low quality or fewer in number.”
“In other words, based on this flawed reasoning, even though the vehicle purchased by the plaintiff would be of lesser quality or value than described on the vehicle’s original window sticker, the VIN would be wholly determinative of the subject matter of the negotiation or contract arising therefrom. In my view, the parties have not reached such an agreement.”
Instead, the judge concluded, the settlement the parties reached involved the purchase of a “stock” Mustang for $30,000. Thus, the dealer’s efforts to find a suitable replacement vehicle constitute performance of its contractual obligations, not a “bait and switch” or other deceptive sales tactic.
“It was the plaintiff who wrongfully and unreasonably rejected these alternative Mustangs and caused the infringement,” McCarthy wrote.
The judge dismissed Sterczyk’s claim in its entirety and awarded some legal costs to Island Ford.
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