NSW Using pre purchase history in a NCAT case

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Daniel Smith

Active Member
12 October 2017
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I have a NCAT case in regards to a Motor Vehicle I bought from a dealer without a warranty. I spoke to the mechanic that serviced the vehicle before I bought it and he said the car was sold off because it had an issue. The expert witness helping with the case has told me I can't use any information about the car from before I bought it. Is this correct and why would this be?
 

Tim W

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28 April 2014
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And what reason did he give?
 

Scruff

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25 July 2018
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NCAT can make it's own rules in regard to evidence, therefore what it does or does not accept is up to the Member hearing the case. Evidence will generally be accepted if it was lawfully obtained and the Tribunal is of the opinion that it is relevant to the case.
 

Daniel Smith

Active Member
12 October 2017
8
0
31
NCAT can make it's own rules in regard to evidence, therefore what it does or does not accept is up to the Member hearing the case. Evidence will generally be accepted if it was lawfully obtained and the Tribunal is of the opinion that it is relevant to the case.
Thanks, I spoke to NCAT and they said it's not a rule. So is my expert witness wrong?
 

Scruff

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25 July 2018
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Thanks, I spoke to NCAT and they said it's not a rule. So is my expert witness wrong?
Correct. You can submit any evidence you like. It's up to the Tribunal Member to decide if the evidence is relevant and therefore acceptable.
 

Scruff

Well-Known Member
25 July 2018
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... In this case, you should get a written statement from the mechanic and submit that.

You might these pages helpful if you haven't read them already:
Evidence and witnesses
Evidence and witnesses - Consumer and Commercial Division

The first page also links to the following page at LawAccess which describes how to prepare and format a statement:
Statements

Be sure to follow the above carefully and make sure that all statements include the name and date at the end (plus signature if on paper). Remember also that statements should not be sworn or witnessed - they are not affidavits.
 

Daniel Smith

Active Member
12 October 2017
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31
No one that delt with the car before purchase will write a report, even if I offer to pay them for their time. I assume they don't want to because it may affect their repeat business. They have admitted on the phone that the car had an issue, how would I submit this info to NCAT. I'm currently in Victoria if the states have different rules on recording phone calls.
 

Scruff

Well-Known Member
25 July 2018
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In which state did you record the call? In VIC, I believe you can record any conversation you are a party to. In NSW however, you would need a reason to record it.

If in NSW and the legal issue existed before the call was recorded, then it should be easy to show that you recorded the call for the purpose of protecting your legal interests. The relevant legislation is the "Surveillence Devices Act" in both states.

If the mechanic who said the car had a pre-existing issue won't back that up in writing, then I would either submit the phone call or call him as a witness. If he doesn't show, NCAT can issue a subpoena.
 
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