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NSW Second Hand Car Deposit Not Refunded

Discussion in 'Australian Consumer Law Forum' started by Special K, 19 July 2014.

  1. Special K

    Special K Member

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    Hi,

    I will try to keep this short - I viewed a car at a second-hand dealer. A few things wrong with it: the engine was overheating, the air con didn't work, 1 tyre was bald, and the exhaust was split. I kept looking around, but is was a nice looking little car, for my learner daughter. I then phoned up to enquire about the car.

    The dealer stated they will fix all issues if I was committed to buy, so I paid a deposit of $250 over phone with credit card on Tuesday 29 June, with the agreement that the repairs would be fixed and car would be collected and balance paid in cash on 5 July.

    I followed up with an email on 3 July, listed the faults to be rectified as discussed, and requested a confirmation that all was good for pick up. The salesman returned my call and confirmed yes. I called again on 4 July to confirm if it was ready to go, and Salesman said yes.

    On 5 July, I drove the 3.5hrs to get there, and while inspecting the car, another salesman said that it was quicker and cheaper to put another motor in the car. When I asked the sales man, at first he said no. It's just like another one cause we did so much work to it. After a few more questions, he admitted that he put a second hand motor in the car.

    We noticed that it was rough on idle and blew smoke on start up - the tyre had not also been replaced, and the salesman said he would send out a fan to the air con when it arrived. He could not show paperwork for the engine that had been put in, although he said he had it.

    For us, the car now no longer had genuine k's, the agreed repairs had not been done, we did not know how many the k's on the replacement motor, and we were not given any warning that this is what they were going to do. We decided not to proceed with the purchase and the dealer is refusing to return our deposit of $250.00.

    NSW Fair Trading has advised us to attend the tribunal which I am prepared to do, but not sure I have a demonstrable case under Australian Consumer Law (their word against ours), or what part of the Act I should be taking them under. Can I also seek compensation for travels costs/waste of my time? Any advice would be much appreciated.
     
  2. John R

    John R Well-Known Member

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    Hi @Special K
    Which state/territory are you in?
     
    DennisD likes this.
  3. Special K

    Special K Member

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    Hi John R - sorry, forgot to add that - NSW.
     
  4. DennisD

    DennisD Well-Known Member

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    Hi Special K

    You say that on your initial inspection the car was a bit rough (overheating engine, busted air con, 1 bald tyre, split exhaust) and that:

    * on Tuesday 29 June, before paying the deposit, you called the dealer who assured you he 'will fix all issues if [you] committed to buy'

    * on 3 July you emailed the dealer with 'listed faults to be rectified as discussed' and requested confirmation for pick up. Salesman called you and confirmed car ready for pick up

    * on 4 July, you called again to confirm car was ready for pick up. Salesman said, yep you bet

    * on 5 July, you inspected the car (do not envy your 3.5 hours drive!) Put simply, 'the agreed repairs had not been done' (eg, the car 'blew smoke on start up').

    Look closely at any records of correspondence between you and the dealer. It sounds like a bit was said over the phone and a couple emails were exchanged. With the list of faults to be fixed, were these first put in writing on 3 July? It will help you if you can show exactly what was agreed (verbally and in writing) to be fixed, before the deposit was transferred

    There are consumer guarantees which you may be able to rely on if you can show the supplier agreed to fix the listed faults, for example in relation to: acceptable quality, fitness for purpose, correspondence with any description, also the goods must comply with any express warranty given. These guarantees are set out in sections 54 to 59 of the Australian Consumer Law (the ACL, which is set out in Schedule 2 to the Competition and Consumer Act 2010). These are summarised in plain language by the Australian Competition and Consumer Commission (the ACCC) at their webpage: http://goo.gl/LqYqZo

    As to your search/travel costs, you're unlikely to recover anything

    Let us know how you go, and if you have further questions

    Hugh
     
  5. DennisD

    DennisD Well-Known Member

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    Hi again Special K

    Further to the paragraph on consumer guarantees in my last post, here are a couple of extra resources:

    * In 2013 the Australian Competition and Consumer Commission (the ACCC) published guidelines on how the Australian Consumer Law (the ACL) applies in relation to vehicle sales and repairs. Here you can download the guidelines: http://goo.gl/rRXsWU

    * It seems that you have already been in touch with NSW Fair Trading; in any event, here you have their Car Buyers Guide in pdf (http://goo.gl/rhUidi), and an outline of their dispute resolution process for motor vehicle repair disputes (http://goo.gl/SX0l2m). You can also call them on 13 32 20

    Hugh
     

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