Okay, now we're getting somewhere. This is just my opinion, but I'll try to explain everything I'm thinking...
In the advert, the seller plays up the fact that the car is an anniversary model. At 20 years old, it has reletavely low kms at 93,000 and at that age, the price is quite high at $10,400. So when I look at that advert (and I know nothing about MX-5's), I get the impression that this car is in extremely good condition and probably all original. The price suggests to me that being an anniversary model, it has some extra value because of it's "status", however I don't believe it is worth anywhere near that price unless it is original. I could go anywhere right now and buy a car in as good a condition, half the age and several thousands under that price.
If you accept the seller's statements as being truthful, then he has no idea of when the engine was changed, who changed it, or just as importantly, why it was changed. So as far as the seller knows, the current engine could have done 300,000kms - and at 15,000kms per year, that's conservative. Therefore given the wording of the advert and particularly the odometer reading and price, the advert is misleading due to the omission of a material fact known to the seller.
The reason I say that, is that most people associate odometer readings with the "mechanical condition" of a vehicle over the "condition of the body". Since the engine has been changed, it is not known if the actual mechanical condition is now in any way consistent with what the odometer reading implies. The fact that the seller became aware of the engine change at least as early as 12 Nov '18 and that nearly 3 months later, the advert hasn't been updated with any disclosure, in my opinion, the advert is now intentionally misleading.
Given these particular circumstances, I believe that any reasonable person would expect that a major mechanical change to the vehicle should be disclosed, and by not doing that, the seller is in breach of the ACL because the advert is misleading by omission of a material fact known to the seller.
The problem is that I don't see anything that shows that the seller knew about the engine change prior to you bringing it up on 12 Nov '18 - and that was after the deposit was paid. So the way I see it, you either have to get a full history on the engine and hope it shows that the engine came from another vehicle owned or previously owned by the seller (possible, but from what I see about the comment on the forum, it implies that the previous owner changed the engine, not the seller), or concentrate on when the records were changed with VicRoads and whether or not the seller denied making that change.
As I see it, he doesn't "directly" deny it, but does do so "indirectly" - and more than once.
From the conversation on 12/11/2018 (some punctuation added for clarity):
- 08:29AM - You: "Does the car have the original engine?"
- 08:32AM - Seller: "Yes that I know of..."
- 08:40AM - Seller: "I'll send it later as I'm out now."
- 08:40AM to 12:07PM - (Assumption that seller provides engine number or picture.)
- 12:07PM - You: "Do you know why this engine number is different from what is registered on VicRoads?"
- 12:08PM - Seller: "I checked VicRoads, it's the same?" (Assumed to be refering to the engine number in the following screenshot being the same as the number on the engine block.) <== Denial #1.
- 12:08PM - Seller posts screenshot from VicRoads showing the engine number as "BP395283" as at (time not shown).
- 12:13PM - You post screenshot from VicRoads showing the engine number as "BP379793" as at 08:59AM.
- 12:13PM - You: "That's what I get."
- 12:14PM - Seller: "I just checked and that's what I got." (Assumed to be refering to screenshot posted at 12:08PM.) <== Denial #2.
- 12:23PM - (Partial post by you mentioning PPSR. Did you get a report from them? If so, what does it show and what occurred in the conversation here?)
- 12:24PM - You: "This is strange."
- 12:25PM - Seller: "20 year old car mate, anything could be changed before I got it." <== Denial #3.
- 12:26PM - Seller: "Could be changed under warranty and Mazda wouldn't even be able to tell you the warranty engine's number." <== Denial #4.
An additional screenshot from you shows VicRoads showing the engine number as "BP395283" as at 12:32PM.
The entire conversation began with a direct question to the seller about the origin of the engine. The times of individual statements, along with the times shown on the the screenshots, show that the engine number was changed with VicRoads between 08:39AM and 12:08PM.
The seller had every opportunity to explain this, but instead
- at #6 above, dismissed any claim the records were changed by claiming that the records match the actual engine number (even though they didn't less than 3.5 hours earlier);
- at #10, dismisses any knowledge of the change by not even acknowledging your screenshot at #8 (which is conclusive evidence of the change);
- at #13 and #14, deflects the question altogether by changing the subject to the physical change of engine instead of the change of records.
Unless the vehicle is owned by someone else, it is not reasonable to accept that the seller has no knowledge of the records being changed. Then there's the timing of all of this, in that the records were changed within 3.5 hours of the seller being asked if the car had it's original engine. Put all of this together and in a civil jurisdiction, there is sufficient evidence to show that the seller is being deceptive.
I therefore believe that the seller has breached s18(1) of the ACL and for the specifics, I would be looking at s29(1)(a) in relation to the history of the vehicle; and s29(1)(b) in relation to the condition, in that it is known that the odometer reading does not match the mechanics of the car, specifically, at least the engine.
Max penalties for breaching s18 of the ACL are $500,000 for individuals, or $10,000,000 for businesses (and all indications are that he is running a business for the purpose of the ACL).
I think you have every right to pull out of the sale and demand that the deposit be repaid. I would start with the following arguments:
- the wording of the advertisement "implies" that the vehicle is original, especially but not limited to the low kms (93,000) and above average price ($10,400) for a 20 year old vehicle;
- the engine was proven as not being original after the deposit was paid and accepted;
- the records with VicRoads were changed after the vehicle was advertised; after the seller was asked about the engine; and after the deposit was paid and accepted;
- the seller's statements during the converstaion on 12 Nov 2018 show that he indirectly denies changing the records with VicRoads;
- it is not reasonable to accept that anyone other than the seller changed the records with VicRoads or that the seller has no knowledge of the records being changed;
- the seller's experience in selling vehicles, whether roadworthy or for wrecking, shows that he either was or should have been, well aware that VicRoads' records are regularly accessed by potential buyers for the purpose of verifying vehicle details, including engine numbers;
- due to the seller's experience, he had an obligation or at the very least, a duty of care to ensure that VicRoads' records were up to date and accutate before the vehicle was advertised and failed to do so;
- the seller has acted deceptively by denying that he changed the records with VicRoads when directly asked about this on 12 Nov 2018.
Even though you had a mechanic inspect the vehicle and he didn't check the engine number either, that does not mitigate the seller's obligations with respect to the VicRoads records and ensuring that those records are correct. I don't know for sure, but this may actually be a legal requirement.
A few personal observations:
1. "Interesting vanity plates" usually equals "trouble". I would never touch a car that has had vanity plates on it - especially something like "BOOZT". They usually say a lot about the previous owner and/or driver and how the car has been treated. That alone could explain the engine change.
2. I don't think I've ever seen a car sold with vanity plates attached - probably because of the ridiculous unwanted costs to the buyer. But back in November, the screenshots all show a cancelled registration, yet the vanity plates were still assigned to that car. Given that at that time the car had obviously already been advertised, it makes me think that either the seller knows the previous owner very well, because the plates hadn't been transfered or stored, or that the seller had owned the car himself for quite some time and the plates were his own. Just a suspicion, but either way, I think the seller knows exactly what the full story is regarding the original engine.