NSW NCAT decission, dealer is entiteled to rely and falsely issued blue slip, appeal option??

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karl may

Member
15 December 2017
3
0
1
Hi there,

I bought a vehicle from a dealer in February this year which was advertised on carsales.com.au as registered. When I arrived at the dealers premise the vehicle turned out being unregistered, but would be sold with a blue slip. Therefore, I demanded that a valid blue slip becomes contract condition. More specifically the contract stated "sold as is, blue slip provided". Contrarly to my assumption that the blue slip had been done already, the dealer obtained it from a 3rd party garage on the day of purchase after I had transfered the money.

I subsequently started to turn the vehicle into a motor home doing some repair, conversion and maintance work myself. During the conversion work I got deeper into the vehicle details and became more and more convinced that the vehicle had been falsely blue slipped. Subsequently (3 months after the purchase) I got a new technical inspection report from an RMS accredited garage where the vehicle failed because of severe structural rust. Since the inspection was conducted 3 months post purchase, I obtainend an NCAT elidgible expert report which stated that the rust is older than 6 months (so not incurred by me).

I lodged an NCAT application claiming that the vehicle was not roadworthy at the date of sale and therefore not fit for purpose. I also claimed that the vehicle had been advertised as registered and that the dealer had conducted missleading. However, I could not retrieve the original add from carsales.com.au. As a remedy I made an affidavit about that and what happend during the sale. The application was accompanied by the new inspection report, the expert report, the affidavit and a compilation of expenses which had had for parts etc. Interestingly the dealer could not retrieve the original add either but claimed that the vehicle had been advertised as "unregistered". However, the dealer did not provide an affidavit for any of his statements.

My claim was dismissed. One reason was this:

"The applicant’s claim that that despite obtaining an inspection report from an independent 3rd party vehicle inspection station, the respondent should have known that the vehicle was not in a registerable condition is not supported by any evidence or authority. The respondent obtained an inspection report from an independent 3rd party authorised to inspect vehicles of this nature for registration safety and other check purposes. The respondent is entitled to rely on such a certificate in forming its’ view as to whether a vehicle is able to be registered and thereby roadworthy. To assert that a vehicle salesperson ought to know better than an authorised mechanical tradesperson authorised to conduct such inspections is, without further evidence, insufficient to establish misleading or deceptive conduct."

Having done some maintance work on the vehicle myself led the member to infere that:

" ...................... He[the applicant] is therefore a person of some vehicle mechanical abilities. The inspection of the vehicle by him pre purchase should therefore have revealed the extent of the rust was of such an state as to render the vehicle unregisterable if as alleged. In the meantime the vehicle passed its registration inspection on the day of sale."

However, I am not a mechanic, have no mechanical qualifications and there was no expert evidence which concluded that the work I did was in any way at a professional level.

The whole descisson did neither consider the inspection report obtained by me nor the expert evidence nor gave my affidavit more wheight that the dealers non-binding explanations.

My gut feeling tells me that the first of the above quoted reasons was somehow picked from the bum and totally dependent on the member. Further it appears to me as a form of injustice to give similar weight to affidavit and the dealers non-binding statements. Finally, can a decission substainably be based on assumptions about my technical skills without any further evidence??

I would like to go for an appeal, but I am uncertain about the chance especially with regard to the first quotation because that formed a cornerstone of my arguments.

Any suggestions/experience.

Thanks
 

karl may

Member
15 December 2017
3
0
1
Hi admin
can you please change the heading from
NCAT decission, dealer is entiteled to rely and falsely issued blue slip, appeal option??

to

NCAT decission, dealer is entiteled to rely on falsely issued blue slip, appeal option??

thanks
 

Tim W

Lawyer
LawTap Verified
28 April 2014
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711
2,894
Sydney
I would like to go for an appeal, but I am uncertain about the chance especially with regard to the first quotation because that formed a cornerstone of my arguments.
The point in question - that a seller (no matter a dealer or a private seller) is entitled to rely on the integrity of something like a Blue Slip or Pink Slip, is well settled law.
It is also settled law that that right of reliance does not operate to facilitating a fraud on a customer, and should certainly not be a defence to one.

The question then for the appeal may be something like...
"Did the Tribunal err in law by allowing what amounts to a defence of
mere disingenuousness?"
 

karl may

Member
15 December 2017
3
0
1
Hi Tim, thank for you comment.

Can you please specify where that law is settled.
I found only this (with special regard to the section of roadworthiness and unregistered vehicle).

If it is well settled law, this would imply the following: At the day I bought the vehicle is was still caterogirzed as a heavy vehicle. Thus, on my way back home (500 km) I could have been pulled over by a heavy vehicle inspection station and could have lost rego immediatly. If what you are saying is correct then I would have had to accept a total loss at the day of purchase because the dealer's reliance on the 3rd party garage is covered by law ................. but my reliance is not. I also could not go after the inspection garage becaiuse the slip was done on behalf of the dealer. .......................... I am aware that there is a philosophical difference between law and justice, but this would be very very sobering (I would acctually define it as a systematic failure).

Can you please write in more plain words what you mean with "Did the Tribunal err in law by allowing what amounts to a defence of mere disingenuousness?"

Thanks a lot

Karl