NSW Using pre purchase history in a NCAT case

Discussion in 'Australian Consumer Law Forum' started by Daniel Smith, 6 June 2019.

Tags:
  1. Daniel Smith

    Daniel Smith Active Member

    Joined:
    12 October 2017
    Messages:
    8
    Likes Received:
    0
    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?
     
  2. Tim W

    Tim W Lawyer
    LawTap Verified

    Joined:
    28 April 2014
    Messages:
    3,139
    Likes Received:
    656
    And what reason did he give?
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  3. Daniel Smith

    Daniel Smith Active Member

    Joined:
    12 October 2017
    Messages:
    8
    Likes Received:
    0
    He said it's standard practise at NCAT.
     
  4. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    635
    Likes Received:
    96
    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.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  5. Daniel Smith

    Daniel Smith Active Member

    Joined:
    12 October 2017
    Messages:
    8
    Likes Received:
    0
    Thanks, I spoke to NCAT and they said it's not a rule. So is my expert witness wrong?
     
  6. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    635
    Likes Received:
    96
    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.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  7. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    635
    Likes Received:
    96
    ... 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.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  8. Daniel Smith

    Daniel Smith Active Member

    Joined:
    12 October 2017
    Messages:
    8
    Likes Received:
    0
    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.
     
  9. Scruff

    Scruff Well-Known Member

    Joined:
    25 July 2018
    Messages:
    635
    Likes Received:
    96
    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.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
    #9 Scruff, 11 June 2019
    Last edited: 11 June 2019
  10. Daniel Smith

    Daniel Smith Active Member

    Joined:
    12 October 2017
    Messages:
    8
    Likes Received:
    0
    Thanks Scruff. The recordings were made in Vic.
     
Loading...

Share This Page

Loading...
gt;