5 Comments Commercial law, litigation, contracts, IP, property law
You paid for a new vehicle, you did not receive a new vehicle, rather a damaged vehicle, stick to you guns for a swap for a new vehicle of a refund of your money.
Others versed in consumer laws will comment on this.
To assist them, could you advise what form the damage took, how it appears to have happened, and why it was that it was not apparent when you took delivery?
You wont get a refund for what is considered damage that is minor.
The seller will need to rectify it to "as new " standard.
What is considered major or minor will be up to the court but you will need sufficient proof that the seller damaged the vehicle or it was faulty and you didn't damage the car, and that the damage is so fundamental to the vehicle that it justifies a new car.
The cost of doing this and the onus of proof will be upon you.
It looks like the dealer is prepared to fight this case so maybe compromise or mediation is the way to go.
If you try and stand your ground you may get some satisfaction from it but it wont be cheap and whether you get a new car or not is not clear on these facts. Id get a lawyer to have a look at the case and give you an opinion.
rambler1 2012-11-01 02:31:41
I too have used the CTTT to recover money previously.
The only issue is that compensation is capped at $30,000 so I'm not sure if they would allow a refund of 56k back to you. I may be wrong as they may not view the refund as 'compensation' just a simple transaction of receiving the money they obtained from you through deception.
Hppefully it all works out for you!
I will be seeking legal advice tomorrow.
AFAIK, the CTTT can make a ruling over the $30,000 cap when it relates to the sale of a new motor vehicle for private purposes. If it is, there is no limit.
The damage has occured due to an impact of some sort which has pushed the rear bumper into the quarter panel. The damage was not apparent when I took delivery of the vehicle as the major affected components of the bumper that would have been damaged appear to have been replaced. The subsequent panel damage still remains behind the bar, which is not obvious without a closer inspection. The expert has confirmed the damage on the rear bar is inconsistent with the damage to the rear of the tub.
The vehicle in question is a utility. The damage to the steel components of the tub has caused a misalignment with the tailgate, that affects its operation. There is paint missing and noticable deformation of the steel in the surrounding panels. The expert has recommended that the tub in its entirity should be replaced as the best means of rectifying the damage. Replacing the tub would be replacing a significant portion of the vehicle.
Logistics with parts availability would suggest that I was not in a position to order and subsequently replace the required components of the rear bar to semi conceal the damage. In fact, the cost of the required spare parts are significantly more than the excess on my comprehensive insurance policy.
So, does the damage affect the operation of the vehicle significantly? No. Is the damage more significant than cosmetic damage? Yes.
The long and short of it is I paid for a new vehicle. The vehicle is damaged. I don't believe I got what I paid for and in my opinion, the vehicle has lost value as a result of being damaged. I just didn't feel the offer on the table was sufficient.
Making an offer to settle a dispute is not an admission of liability. And you must not disclose this at the hearing.
You are correct to rely on ss.54 & 56 of the ACL. However, I would also throw in s.18, as they knew of the damage but failed to disclose it and sold you the vehicle "as new"
I would just ask for a refund. Relying on the defendant to repair the vehicle to your satisfaction could be problematic. Make sure you avoid using the vehicle too much as significant use could mean you only get damages or a repair.