ACT File Against Seller in Small Claims Tribunal?

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29 November 2016
Sorry in advance for the long form.

I bought a car from a private seller in Sydney, went and test drove the car. While test driving the car and after, I asked the seller about how the car was mechanically. He told it runs good and never ran into problems with it.

During the test drive of the car, I comment saying some Nissan have CVT issues. He said he has never had an issue and he just recently serviced the car and transmission. So I put the deposit for the car, and that weekend drover from Canberra to Sydney with my friend to buy and pick up the car. We got there and my friend constantly keeps asking him questions about car inside out, and we keep getting the same response, "the car runs well and never had issues with it, just service the car and transmission".

My friends requested for service receipts and log book service. He gave use the log books, but told us that in Sydney they don’t provided a receipt with comment of recommendation of what to fix on the car by next service, so we asked for the mechanic number of the last service. We contact the mechanic requesting service receipts of the last 2 services, he gave us just receipts without comments or anything just cost of service.

We spent 2 hours asking question then later bought the car. The next day, driving back to Canberra, at traffic light merging on the M5, the car completely shut down. Took 5 to 10 minutes to figure out what’s wrong. I turned the car key to turn off the ignition then tried turn it back on, and it started working again but 3 lights came on.

I started to drive, and when I got close to Goulburn had to slow down because of an accident. When I slow down, the car keeps having a kick/skip. When I got to Canberra, I message the seller regarding the issue but he didn't reply. Then on Monday, I message him again; he didn’t reply. He replied to me on Wednesday saying I test drove the car and there was nothing wrong with. It must be the hot weather, but I bought it so there is no guarantee or warranty.

On Monday, I booked the car to be serviced. On Tuesday one of my friends scanned the car for an error code and we got one. On Wednesday, we took in to the mechanic and on Wednesday afternoon, the mechanic said he had scanned the car and he got the same error code and had to keep the car overnight because he thinkx it's also an issue with the transmission.

I message the seller again telling what the mechanic told me and requesting a refund; he didn’t reply. On Thursday, I went to the mechanic again, and he told me the error code was the least of my issues. He has fixed the error code but there is something wrong with the transmission, but he will keep the car again to run through it. I was at the mechanic and I message the seller again, telling him what I was told and saying it wasn’t a new issue.

He replied asking for the mechanic's number and address, and told me to call the people that service the transmission while he had the car.

I called the company that service the transmission asked them out the service of the transmission and they told me they didn’t service the transmission, they replaced the transmission they received from ACM wrecking yard, and they have replaced the transmission twice and the last replacement was about a month and half ago.

I message the seller last Thursday giving him the information he requested and told him about the transmission replacement, till now he hasn’t reply.

My dad message him with regards the same issue and requesting a refund. One of his reply was “If I believed I replaced the transmission a month before I sold the car, it does mean that there should not be any issue with that. As it’s an issue now and was not before you bough the car”

I met few solicitors, they told me there was nothing I can legally do as it a private sale. Legal Aid said I can file a case against him in the small claims tribunal, saying I did not get what I pay for.

Can someone please help me on what to do? Should I file the case and what legal grounds do I have? What are my chances?


LawTap Verified
27 May 2014
Agree with the solicitors. Unless you can prove the seller knew there were problems, or should have known, you have no legal grounds. If seller had just replaced the transmission then it is not unreasonable for the seller to think the transmission is working unless your mechanic can prove otherwise.

Buying cars privately with no warranty is a risk and is the reason why you should pay less than market value for them. Need to allow an amount as 'spare' to fix issues that were not obvious at time of sale. Might be an expensive life lesson for you.

Victoria S

Well-Known Member
9 April 2014
Agreed. Unless you can obtain old service records or statement from his mechanic that indicates the seller knew about issues with car it will be very difficult to prove something on the balance of probabilities.