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QLD Going to QCAT - Car Warranty Issues under Australian Consumer Law

Discussion in 'Australian Consumer Law Forum' started by ablin1, 22 July 2015.

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  1. ablin1

    ablin1 Member

    22 July 2015
    Likes Received:
    Thanks in advance for reading and any responses! Please feel free to ask any questions for more detail.

    The Story
    I bought a car from a dealership for $10,000. It is under warranty ( Australian Consumer Law) as it has done less than 160,000km and is only a 2006 model. I drove out of the dealership and 30 minutes later the radiator cracked, they repaired it. A month later the muffler fell down (over a couple of days the front where the exhaust enters it had completely fallen off) around this time the exhaust hanger broke and the left exhaust pipe fell to the ground (hangerwasn't roadworthy as you could see it was cracking and very worn/week). I got a mechanic to inspect the car and he found that all bushes were worn below roadworthy standard and 3 of them were split. (A major safety issue and completely un-roadworthy). Further to this he found that the front strut tops were sagged and worn. Both these issues he said could not have been caused by me and the car was illegal and un-roadworthy since it left the dealership.

    I've gone to QCAT and we now have the court case on the 03/07/15

    The Problem
    Problem 1 = They're allowed a lawyer i'm not (not that I could afford one)
    Problem 2 = I've made some small mistakes in bringing about the case so want advice on how to fix these or go about it. I've simply copied and pasted their email and in capitol letters i've written what I have done/think I should do.

    Problem 1 - The dealership will have a lawyer representing them. (i've copied and pasted part of a letter detailing why they are allowed a lawyer in QCAT) between the stars *****

    The respondent appears at this mediation in accordance with its certificate of authority provided to the tribunal in the form of a letter on 19 March 2015 (despite it being dated 10 March 2015).

    The respondent is erroneously listed as being "Kedron Car Centre" in the applicant's application. Kedron car centre is the name of the business carried on by the respondent corporation.

    The appearance by a corporation in, and or before the Queensland Civil and Administrative Tribunal is in a "proceeding" governed by Section 44 of the Act and Section 54 of the Rules.

    Schedule 3 dictionary of the Act which defines the term "proceeding" as being "(a) generally —a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal or to the appeal tribunal". Whether a mediation is a "proceeding" remains unclear.

    The QCAT form "Application for leave to be represented" says: "Some entities, such as State agencies, corporations, associations, partnerships and trusts, can only appear in the tribunal through specific people. In certain circumstances, those entities may need permission from the tribunal to appear though a person who is an Australian legal practitioner or government legal officer. "

    An entity seeking permission to appear through a person who is an Australian legal practitioner or government legal officer should not complete this form.

    Instead, the entity should write to the tribunal setting out the names of the parties, the case number, the name of the person they propose to appear for them, the person's position in the entity, and the reasons why leave should be given for the entity to appear through the person. "

    Moreover, the notice of mediation advises that "both parties are directed, pursuant to Section 76 to (1) to participate in person or be represented by a person who has authority to settle the dispute this subject to the proceedings".

    Problem 2
    9. In the above-mentioned letter the respondent expressed its position as to why the mediation should not go ahead.

    10. It is well settled proposition that parties must negotiate in the shadow of the law and where the law, for the reasons set out in the above-mentioned correspondence, does not give any prospect of relief to the applicant there is no incentive or reason why a respondent needs to adopt a position other than that the application should be withdrawn or dismissed with costs. WHY SHOULD I NEGOTIATE WHEN THE LAW SAYS I'M ENTITLES TO CHOSE A REFUND? I HAVE CALLED THEM 3 TIMES AND EMAILED THEM TO WHICH THEY SAID ON THE PHONE THERE'S NOTHING THEY CAN DO THEY'RE NOT GIVING A REFUND AND THEY DIDN'T RESPOND TO MY EMAIL.

    11. The fact that the respondent will incur further costs by the matter proceeding beyond the mediation is not a proper reason for the respondent to consider paying the applicant "go away money". WHY ARE THEY SAYING THIS?

    12. Even if the application had been properly brought the applicant has no prospect of excess because there has been no rejection of the goods and therefore a claim under the consumer guarantee of acceptable quality (even if the goods were not acceptable quality which is denied) cannot succeed because the necessary precondition for that action has not been satisfied. I CAN'T 'REJECT' THE VEHICLE AS ITS NOT ROADWORTHY/SAFE AND I HAVE ALREADY SAID ON THE PHONE THAT I'M NOT HAPPY WITH THEM FIXING IT I WANT A REFUND AND I'VE ALSO GOT PROOF SAYING THAT IN AN EMAIL - I NEVER ACTUALLY SAID 'I REJECT THE VEHICLE' BUT I MADE IT CLEAR THATS WHAT I'M DOING. ALSO I'VE PROVEN MY POINTS WITH AFFIDAVITS AND MY MECHANIC HAS WRITTEN A LETTER ON FORMAL LETTERHEAD WITH ALL THE DEFECTS HE FOUND INCLUDING WRITING THE REGO/VIN/OTHER DETAILS.

    13. In any event the authorities do not support such a finding irrespective of the state of the vehicle (in relation to which no admission is made).

    14. Given that there has been no claim other than for reimbursement of the purchase price the respondent is not required to adopt any alternative position or consider alternative outcomes.

    15. It is noted that there are 10 claimed defects in the application and the respondent has not had the opportunity to inspect those alleged defects. Nor is there any evidence to support the majority (if not all) of the allegations with respect to defects. However, it is noted that the first and most major of the alleged is certainly no longer present in the vehicle. Moreover, the remaining defects do not, on the basis of the authorities and irrespective of the state of the vehicle (in relation to which no admission is made) are not sufficient to ground the relief sought. HAS BEEN FIXED BY ADDING EVIDENCE (MECHANIC LETTER/AFFIDAVITS/PHOTOS) ANYTHING ELSE I NEED TO DO?

    16. Steps have been taken to discuss the matter as between the parties on a without prejudice basis; however, to be clear any offers previously made (if any) were made in contemplation of avoiding incurring the cost of mediation. THIS SAYS THAT STEPS HAVE BEEN TAKEN TO DISCUSS THE MATTER... ISN'T THAT NEGOTIATING? CAN'T I USE THIS STATEMENT AS EVIDENCE THAT WE HAVE ATTEMPTED TO NEGOTIATE?
  2. Ivy

    Ivy Well-Known Member

    10 February 2015
    Likes Received:
    Hi there,

    1. When is your hearing? You wrote "03/07/15"- does this mean you have already had your hearing or did you get the date wrong?
    2. What mistakes did you make on your application? Have you called QCAT to fix them? QCAT can help you sort out administrative and paperwork issues if you're having difficulty.
    3. Have you responded to the letter sent by the dealer? If not, what is your issue with their letter?
    If you are stressed about the letter, don't be. It's bluster that is to be expected from a party that is denying your claim to a refund on the vehicle. You are right that under Australian Consumer Law you are entitled to a refund for a major defect or for less major defects you are entitled to the cost of repairs being covered (at least). You have the evidence from the mechanic. This is part of the legal process. They make their arguments and you will refute them (hopefully successfully) at your hearing. You didn't expect them to agree with you did you?
  3. ablin1

    ablin1 Member

    22 July 2015
    Likes Received:
    Hi Ivy,

    Thanks for your response!!

    1. It's on the 03/08/15, sorry for the mistake
    2. I've corrected all mistakes on the application however the 'mistakes' i'm concerned about are;
    a. I haven't 'forfeited' the car. Should I have to considering it's current state? (at the dealerships fault). What response should I give when this sort of question comes up in court?
    b. They claim that we haven't negotiated in the shadow of the law. What response could I give. Is the phone call's with them plain refusing and not negotiating enough?
    3. My issue with the latter is as stated in '2.' I'm concerned they could win the case based on small errors on my part ('a.' and 'b.')

    Thank you so much for your time! I appreciate it very much!
  4. @thelawbundle

    @thelawbundle Well-Known Member

    27 October 2014
    Likes Received:
    Hi there,
    I'm not sure that I've understood the issues properly, but it would be good to see all of the relevant paperwork.

    I volunteer as a solicitor at QPILCH, an organisation which provides free legal advice to people who are representing themselves in QCAT matters.

    Maybe visit their website Self Representation Service or try to give them a call (07) 3846 6317.

    Explain that your matter is to be listed quite soon and hopefully they can organise an appointment for you (they are based in the QCAT building in Brisbane CBD).

    The head solicitor there is great, and should be able to give you some practical, strategic advice once she has seen the documents. I may even see you there as a volunteer myself.

    Let us know how you go. If you have no luck with QPILCH, we can hopefully help via here.

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