NSW Could I Get Refund from Dealer Under Australian Consumer Law?

[MichaelB]

Hello,

In January 2016, I have purchased a second-hand car (2011 Passat, $21k) from a licenced dealership (fixed price, not auction). Within 3 months/ 5,000km warranty, I found out there is a mechanical issue with the sunroof & somehow water is leaking through to the vehicle.

I dropped it back in dealership for service (March) and a week later, it was returned as it was 'fixed', but with the first rain, the issue came back. I dropped it again in early June and the car has been with the dealership for 8 weeks! Now the dealership is about to return the car claiming there is no issue, that they have tested it, bla bla bla.

On top of it - they have sent me last week email that the car is ready for pick up so we went there and the car was dismantled and not ready at all... They said they wanted to show me they are 'working' on it but it looked more like a bunch of amateurs trying to fix something they have no idea about. I asked them a number of times to provide me details of the service/ qualification but without any response. It seems that it's just a 'mate of mate' trying to perform some kind of service...

Where to next? I believe the water leaking issue will continue with the first heavy rain. I do not want to pay for the authorised service from my pocket but as well I do not want to return it to the dealership as it will be there again for 10 weeks without any work done on it.

A) Could I get it fixed in authorised service and let them pay for it? Where to next under Australian Consumer Law?

B) Or could I get a refund? Do I need some independent report there is an issue with the car
+ with a refund?

I have invested about $3k to the new tyeares, missing equipment (e.g. cargo cover) - could I get a refund for it as well? How to get a refund when the dealership is claiming there is no issue with the vehicle? Do I need to take a legal action?

Thanks so much for your help.

 

[Victoria S]

Hi MichaelB,

Under the Australian Consumer Law, vehicle dealers are required to guarantee that second hand vehicles sold to you are of acceptable quality. This takes into account what is reasonable for the age, model and type of vehicle.

If there is a major failure to ensure a vehicle sold is of acceptable quality then your remedy is a refund for the vehicle and any other costs you incur as a result of the failure. If its a minor failure you are entitled to the car being fixed or compensation for the amount of your loss.

Unfortunately there is not a huge body of NCAT decisions which you can sort through to determine what would be considered a major failure and what is minor. However, there are a few and what these indicate is that the vehicle must be roadworthy at the time of sale and that where a series of little things are found to be not working - which you would expect to be working - shortly after sale, it can amount to a major failure. The only way to know for sure is to make a claim through NCAT.

My suggestion is always to start with a letter of demand. Write to the dealer and let them know that you know what your rights are under the Australian Consumer Law and that you believe they have breached its requirements by failing to "...".

Then demand either a refund - if that's what you are going for, or the cost of repairs to be done at authorised dealer or whatever (get a quote and request that price or if you are willing have it fixed and then you can quote exact amount of the invoice). Always include a deadline for payment to be made.

If the dealer refuses which they usually do, your next option is to either involve the Dept of Consumer Affairs or Fair Trading and see if they can help you resolve the dispute. If not you will have to make a claim to NCAT.

Here are some links to more info:
Motor vehicles case studies - Consumer and Commercial Division
Lemon Car? What You Can Do Under Australian Consumer Law - Legal Blog - LawAnswers.com.au
Faulty Second Hand Car? Your Options as a Buyer - Legal Blog - LawAnswers.com.au

 

[MichaelB]

Thanks so much for your answer Victoria,

I have pretty much followed your recommendation and after the letter to the dealership and unsuccessful negotiation (and Fair Trading involvement), I have lodged the case to NCAT. I have documented the whole journey and all the communication we had is captured in emails and pictures so I hope I have a chance to claim money (I got a quote from authorised service).

Only remaining question is - could I actually ask for more money - covering my time (e.g. $100/hour or something..) + expenses e.g. travelling to the dealership, fees for NCAT, postage etc?

Thanks so much for your help and support, Michael