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WA Bought Damaged Caravan on Gumtree - Small Claims Court?

Discussion in 'Australian Consumer Law Forum' started by Traceymb20, 10 February 2016.

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  1. Traceymb20

    Traceymb20 Member

    10 February 2016
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    Can I take a gumtree seller to small claims court for the cost of repair of water damage. I had clearly asked him twice if there was any water damage in the caravan. He said, no.

    The damage is around a window; he would have known for sure.

    What are my chances under Australian Consumer Law?

    Kind regards
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
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    Hi Traceymb20,

    Whether or not you have a cause of action depends on various factors.

    1. Whether you should have been able to identify the damage yourself upon reasonable inspection, prior to purchasing the caravan.
    2. Whether the seller, in fact, knew of the water damage and lied, or whether they innocently; and
    3. Whether it is, in fact, water damage or some other type of damage.

    An actionable pre-contractual misrepresentation occurs if a seller makes a 'false representation' which is a representation of fact (rather than an opinion of law or a prediction), made to the buyer and it induces the buyer to enter the contract. If you were able to identify the damage yourself and you can't say it induced you to enter the contract.

    In cases where the seller makes a false statement knowing it to be false or without believing in its truth, or without caring whether it is true or false. In that case, the maker may be guilty of fraud well as misrepresentation. However where the misrepresentation is innocent (the seller can show that they believed on reasonable grounds that it was true) then they have a defence to your action.

    The remedy in the case of fraudulent misrepresentation is a cancellation of the contract.

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