ACT Private Car Sale - Can Buyer Take Me to Small Claims Court?

[Patricia Lisle]

I sold a car having made full and honest representation of its condition (excellent) within the advertisement on the internet. The person who purchased it did not take it for a test drive nor request a vehicle inspection, but chose to test certain aspects within the basement of my apartment block, stating that he knew what he was looking for. A previous potential buyer paid for an NRMA inspection and the inspector told me it was in excellent condition, as, did the mechanic who performed 100k service a week before it was sold.

The buyer 6 days later rang to say the clutch had gone, insinuating that I knew it had a problem which I vehemently deny. He has subsequently demanded $500 towards costs of replacement and advised he has "the means to pursue this in other manners, however, would prefer to settle this issue with you quickly", a statement I find quite threatening.

I understand that a buyer of a private car has full responsibility to check the car over as it is considered to be a "buyer aware" situation, as advised by the Office of Fair Trading, who do not consider it to be a consumer issue. My concern is that he may go to the small claims court. Would he have any recourse on myself through this means?

 

[Sophea]

Hi Patricia,

While the buyer is at liberty to take this to court or the relevant small claims tribunal, based on what you have stated above, I doubt he would be successful. As you have stated, the onus is on a buyer to inspect a vehicle to his satisfaction and there is no evidence that you had prior knowledge of the clutch issue (or that anyone else did for that matter) which you kept from him, (which would be required to prove that you made false or misleading representations about the vehicle). And as you have pointed out, the Australian Consumer law does not apply here, so as a seller you are not required to provide any consumer warranties regarding the vehicle.

I would send him a stern letter stating that there was nothing in the prior service records, that you did not know of any clutch issue, that the onus was on him to inspect the vehicle to his satisfaction and he failed to do that and that is the risk that he bears buying a second hand vehicle without having it inspected by a mechanic, so he should drop it. You can also enclose copies of the relevant records showing the vehicle was in good condition.

 

[Patricia Lisle]

Hi Patricia,

While the buyer is at liberty to take this to court or the relevant small claims tribunal, based on what you have stated above, I doubt he would be successful. As you have stated, the onus is on a buyer to inspect a vehicle to his satisfaction and there is no evidence that you had prior knowledge of the clutch issue (or that anyone else did for that matter) which you kept from him, (which would be required to prove that you made false or misleading representations about the vehicle). And as you have pointed out, the Australian Consumer law does not apply here, so as a seller you are not required to provide any consumer warranties regarding the vehicle.

I would send him a stern letter stating that there was nothing in the prior service records, that you did not know of any clutch issue, that the onus was on him to inspect the vehicle to his satisfaction and he failed to do that and that is the risk that he bears buying a second hand vehicle without having it inspected by a mechanic, so he should drop it. You can also enclose copies of the relevant records showing the vehicle was in good condition.

Thank you, Sophea. I have responded to his request by email outlining the situation from my viewpoint and the onus on him, as you have suggested. I hope this is the end of the matter but I have my doubts because of his persistence to date. Thank you again