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WA Taken to Small Claims for Selling Car Privately

Discussion in 'Australian Consumer Law Forum' started by Jen257, 13 March 2015.

  1. Jen257

    Jen257 Member

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    i recently sold my Saab convertible, and now the buyer is taking me to court stating I must have known about the defects. The car is a convertible, and I had no issues with it other than sometimes the roof needs a second go (push the button again if it didn't close fully). I pointed this out at the time of sale and the buyer didn't seem to mind. She asked me no questions, did not get it mechanically checked out and paid cash. I was happy, she was happy. Now two weeks down the line, she's taken it to a garage where they have told her that the hoses, struts and hydraulic system is old and failing and leaking, and it will cost her $1000 to fix. She is now pursuing me for the costs.

    My story is that she had a working roof, albeit a little tired, but I told her all this and she didn't care. It is a 16 year old car and without taking it to bits, there was no hydraulic fluid anywhere on the car that I could see, I could not have known that it was faulty. I have had the car for almost 2 years and the roof was always good. I just thought (and it didn't bother me) that the roof was old sometimes needing two goes to close. I pointed this out though. If she didn't accept that, she should have rejected the car.

    What are my rights under Australian Consumer Law and if I am taken to court what will happen? Am I likely to have a hefty bill to pay together with the embarrassment. She has sent me various messages informing me of the issues she is having and I don't want to converse with her for fear of further conflict.

    What should I do?
     
  2. Sophea

    Sophea Well-Known Member

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    Hi Jen,

    with respect to the roof problems, you are correct in that - if you brought the roof not closing issue to her attention prior to her purchasing the car then she doesn't have a leg to stand on. With respect to the other issues, you would not be liable for misleading and deceptive conduct or misrepresentation etc as long as you didn't know about those issues at the time of sale. As long as you can prove that to QCAT or preferably to her before it gets to that, then you should be able to defend the case successfully. Do you have any servicing records for when you owned the car? Or can you get hold of them from your mechanic? These will be important to demonstrate what you knew about the mechanical condition of your vehicle prior to selling it.

    If you can show such records to the purchaser to prove there was no indication from your mechanic that these things were a problem you should be able to get her to withdraw the proceedings. This is a risk that a buyer must wear if they don't have a vehicle checked out by a mechanic before they buy.
     
  3. Jen257

    Jen257 Member

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    Hi. There is some service history but nothing that mentions the roof. I never took it to a garage while I had it so there is nothing that I can give the court to prove or disprove. I'm only stressing because I'm not able to defend myself with paperwork. There is none. I had no idea and I can't prove it. But surely she should prove I did know not me defending myself. I'm in the right here. She is just upset that her car has issues that she didn't know about but neither did I.
     
  4. Sophea

    Sophea Well-Known Member

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    Yes your right...
    I would get whatever records you have - send them to her and advise her that you told her as much as you honestly knew about the roof defect, you knew nothing regarding the extent of the defects or what was involved in fixing it. She probably thought when she bought it that she could just take it off to the mechanic and have the little two button push issue cleared up, but didn't expect it to be major surgery. She is just upset at her own misjudgement. You could VERY kindly and sweetly suggest this to her and just let her know that you were completely honest with her regarding the state of the car, but you are not a mechanic and could not have known the extent of the issue.
     
  5. Tim W

    Tim W Lawyer

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    We covered similar (but not identical) ground
    in this thread.
     
  6. Jen257

    Jen257 Member

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    I'm not quite sure what you're saying. I have read this and it seems as though you think I'm in the wrong. Can you please explain why you think this is?
     
  7. Tim W

    Tim W Lawyer

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    I have no view either way - I'm simply pointing you to similar ground.

    If that was not helpful, try this:

    I will assume in this answer that this is a "private" transaction between two people,
    and that you are not, say, a motor dealer (nor some other entity to which the Australian Consumer Law could apply).

    If it's a "private sale" then in the event of dispute,
    it's a matter for the buyer* to show,
    • that it was more likely than not**
    • that you knew things about the condition of the car (such as defects you knew about), and
    • that what(ever) you knew about the car would have been relevant to the decision
      made by the ordinary reasonable person*** about whether or not to buy the car, and
    • that you deliberately withheld that information from the buyer
      in a way that amounted to a fraud by you on the buyer.
    This is not a consumer transaction, so I am not at all sure that
    any of the consumer protection stuff is available to the buyer.
    This is a dispute about a contract entered into by alleged fraud.
    It's the buyer who has make out their case.

    In WA, many consumer disputes are dealt with in the Magistrate's Court.
    Although the buyer may think so, and their documents may say so,
    I am not sure that the Magistrate's Consumer Protection jurisdiction is in play here
    (because it's not a consumer transaction****...).
    There may be a WA lawyer here who can shed further light on this question.




    -----------------------
    * Lawyer-speak for this is "Plaintiff", or, sometimes, "Applicant".
    This is the person who has the problem and is picking the fight.
    You would be a "Defendant", or, sometimes, a "Respondent".

    ** Lawyer-speak for this is concept is "on the balance of probabilities"

    *** An average everyday person who is not a mechanic,
    nor even especially knowledgeable about cars

    *** That is, it was done in the context of "trade of commerce" - it was a deal between two private persons,
    acting personally and not in the course of business.
     
    Sophea likes this.

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