NSW Car Dealer Can't Meet Delivery Date - Can I Cancel?

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Rodney Thorpe

Member
8 August 2014
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I signed a contract for a new car on 29th June. The delivery date was EST 14th August. I received a call telling me the new delivery date was 10th September. I asked the dealer to cancel and that I was not prepared to wait 10 weeks. He demanded 10% of the sale price which is in the contract. I have paid $500 deposit. Where do I stand in the Australian Consumer Law, as they cannot meet the delivery date?
Thank you.
 

John R

Well-Known Member
14 April 2014
689
174
2,394
Sydney
Hi Rodney,
Can you please let me know what the contract states in relation to:
  1. cancellation/termination of contract; and
  2. the delivery date for the new car.
 
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DennisD

Well-Known Member
11 July 2014
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Hi Rodney

I second John R's queries as to the T&Cs. In this situation NSW Fair Trading (scroll down to 'Delays in delivery') recommends first reviewing the T&Cs to determine whether the vendor is in breach. Look especially at whether the delivery date is 'estimated delivery date' or 'fixed delivery date'
 
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Rodney Thorpe

Member
8 August 2014
2
0
1
Delivery date is written as below
Est Delivery Date 14/08/2014
Default clause reads
6 DEFAULT
If the customer defaults in observing any of these terms and conditions then without prejudice to any other rights and remidies, the Dealer may resell the vehicle with no liability to the customer and:
a) Forfeit and retain any monies paid by the customer on account of the contract price to a limit of ten per cent (10%) of the contract price, being a genuine pre-estmate of the Dealers
Loss that may be sustained on account of the customer's default, or
b) Recover from the customerby way of liquidated damages an amount representing ten per cent of the contract price, or
c) Recover from the customer by way of liqudated damages all loss of profit and reasonable expense and costs incurred as a result of such default, or
d) Retain any vehicle or other goods traded-in or proceeds of sale of same or any monies paid by the customer on account of any damages suffered.
That is the full default clause.
There is no other reference to delivery date in the terms and conditions.
The dealer does not use the standard contract as set up by the Motor Traders Association and I think Fair Trading?
 

DennisD

Well-Known Member
11 July 2014
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589
The fact that the delivery date is an 'estimated delivery date' makes it more difficult to show that the delay amounts to a breach

The default clause is not surprisingly drafted in favour of the vendor, and unfortunately is silent as to customer rights in case of vendor breaches. However, a customer in default can be on the hook for quite a bit, as a start consider paragraph (b) of the clause

* sidenote: based on only a quick reading, the NSW Fair Trading "Car Buyers Guide" and the ACCC's "Motor vehicle sales and repairs: An industry guide to the Australian Consumer Law" do not seem to touch on delayed delivery as in your circumstances. In any event, as discussed above, the T&Cs are what matter
 
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