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 *****
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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".
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Problem 2
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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?
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".
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Problem 2
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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?
