The sh*t has hit the fan, calling all toyspeed, need help

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Postby TRD Man » Sun Nov 01, 2009 10:11 am

The most likely scenario, if the problem actually exists, you refuse to help out, and the kid's parents get involved, is that they'll take a case to the Disputes Tribunal.
Earlier somebody suggested that you should avoid that. You can't.

However their sentiment is correct. Tribunal referees are not judges and in most cases not lawyers either. Their decisions seldom follow the rule of law and most often favour the person they see as most 'aggrieved', which is usually the customer or buyer.

Looking at the facts as you've presented them:

We know that you have sold a car stating that the engine had been "rebuilt", which implies some period of reliability.
We know, (assuming the kid is telling the truth), that the motor is buggered.
We don't know how he drove it.
We don't know what fuel he ran it on, (regardless of what he said on the night of purchase).

Not only do we not know these things, I imagine that a competent mechanic acting in support of the kid would be able to convince a referee that neither would have impacted on a properly 'rebuilt' engine.

I don't know how much you sold the car for but if it were a reasonable amount then an element of 'fit for purpose' will come into play in any decision. Most specifically - how long might a buyer reasonably expect a car costing several thousand, or however much it was, to perform reliably and particularly given the enticement to buy of the stated 'rebuilt' engine.

There is nothing in this
I (persons name) acknowledge that in signing this agreement I understand that I am now responsible for all maintainence and care of this vehicle. I also agree that I have inspected the vehicle and am happy with the condition of it".
which protects you from that.

There is no certainty. Tribunal referees are individuals and often given to making some outrageous decisions.
However, with considerable experience of this system, I'd suggest that, if it goes to a tribunal, they'll very likely award against you to the tune of at least half the repair bill, probably more.

If it were me, I'd be getting on to the owner and talking to his mechanic to find out exactly what the issue is and attempting a remedy without the tribunal.

If you are selling a vehicle and wish to have no comeback whatsoever you need to be very explicit in your contract which you should have prepared and show to prospective purchasers before they view the car, and have them sign on sale. Most sellers get all excited at the prospect of a sale, oversell the vehicle and then soften the 'no warranty' bit at the end.

This is the sort of thing we'd prepare on the yard for sales outside of the warranty system:

This is a contract for sale of 1987 Toyota Corolla ZXCVBN Vin # 1233456 which is offered for sale on an 'as is where is' basis from premises at 123 High Street, Levin.
The vehicle is sold unwarranted and as parts only and nothing either said or written by the seller is to be considered a statement of any condition or fitness for any use or purpose.
No warranty is expressed or implied.
It is the purchasers responsibility to carry out any inspection, testing or research to satisfy themselves of the vehicles condition and fitness for any purpose they intend. Further it is the purchasers responsibility to remove the vehicle from the place of sale and once having done so all matters pertaining to the vehicle, and it's use, are the sole responsibility of the purchaser.
On signing this contract the purchaser indemnifies the seller from any claim in respect of any matter pertaining to this vehicle from time of sale onward.


That oughta cover you in any similar situation.
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Postby peas » Sun Nov 01, 2009 11:17 am

Hey TRDMan.

Im in the process of running an auction on TradeMe at the moment and want to know how this affects any sales document (which I happen to be writing up now). You said that "fit for purpose" comes into play. The car I am selling has done upwards of 300,000km and while it is running perfectly fine now... The fact that it is an auction and that the bidder has had an opportunity to inspect the car (whether they have or havent) I would assume that they made that bid on their own free will and so that in itself would constitute an accurate price for the vehicle in relation to its durability and condition...

Anything that I really should include in the agreement over what you have put in the prev. post?
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Postby TRD Man » Sun Nov 01, 2009 12:50 pm

peas, short answer, no. That should cover it.

Depending on your vehicle and how much you're selling for, you may not wish to sell as 'parts only'. Or at 300,000k's you may want to.

TradeMe is a little tricky in that it differs from other auctions in a number of ways - 1) it allows you to write emotive sales pitches to attract bidders & 2) it introduces the buyer to the seller and opens a whole lot of possibilities.
It's also heavily used by dealers who cannot contract out of their obligations under the MDA, the FTA or the CGA.

So I would make it clear that it is 'private sale', use the clause or something similar and invite buyers inspection. You'll be fine.
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Postby GX61 Mark II » Mon Nov 02, 2009 1:20 am

also are you in trade (of selling or related to vehichles) if you are, you can't just say this is a private sale. Additionally are you listing with a buy now option? are two very important things - in terms of whether the consumer guarantees act applies and therefore the 'fit for the purpose' requirement.
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Postby GX61 Mark II » Mon Nov 02, 2009 1:36 am

Also TRD man what do you think think about the last line of the contract that you presented as an example above. Contracting out of the consumer guarantees act? I think you need to add something along the lines of 'except any obligations as per the consumer guarantees act 1993' to avoid that.
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Postby Mr Revhead » Mon Nov 02, 2009 8:26 am

you guys have to remember that selling as a dealer and selling privately are two different things....
read the links I posted, thats what applies...

consumer gaurantees act does not apply in the same way to private car sales,
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Postby TRD Man » Mon Nov 02, 2009 9:23 am

Warwick is correct. The FTA & the CGA do not apply to private sales. Read his links.
So there's no need for any wording to that effect in any private contract.

And no, making one private sale once in a blue moon does not place you 'in trade'.

My reference to the number of dealers selling on TradeMe is simply this;
When you are inviting a buyer into an environment where there exists the possibility of confusion you should be doubly careful.
You should make your advertisement clear and distinguishable from those of people who are 'in trade'.

The best way to avoid trouble down the line is not to invite it in the first place.
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Postby dnalunchie » Mon Nov 02, 2009 9:25 am

guys not sueing me anymore, apparently hes going to take it to possum bourne motorsport for a "proper rebuild"..... WIN
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Postby FANGIN » Mon Nov 02, 2009 10:08 am

So he can blow it up again, NICE :wink:
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Postby duddley » Mon Nov 02, 2009 11:52 am

must of realised that he got a shit load of quality parts for the few grand he paid and that maybe cars need oil and decent fuel to survive and/or that thrashing it all the way home wasnt that clever
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Postby Adamal » Mon Nov 02, 2009 1:05 pm

I still say punch him in the face.
Motorsport is like sex. You could take it to track and have a long, enjoyable session, or you could take it to the strip and get it over with in less than 20 seconds.
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Postby GX61 Mark II » Mon Nov 02, 2009 1:48 pm

Mr Revhead wrote:you guys have to remember that selling as a dealer and selling privately are two different things....
read the links I posted, thats what applies...

consumer gaurantees act does not apply in the same way to private car sales,


yeah I already mentioned that earlier, but TRDman stated that that contract is prepared for a car yard (where obviously the CGA applies).
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Postby dnalunchie » Mon Nov 02, 2009 2:11 pm

Adamal wrote:I still say punch him in the face.


yeah i would have quite liked to do that, would have rather kept the car and not sold it to a (now obviously) total idiot ... :(
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Postby TRD Man » Mon Nov 02, 2009 2:28 pm

GX61, in the era that we used those clauses the FTA & the CGA were not applicable laws.
Dealer sales were governed by the Motor Vehicle Dealers Act and we could not contract out of the warranty provisions at all, other than by a cumbersome tender arrangement which required a list of defects amongst other things.
Hence, to get rid of trade-ins & repossession and the like, we would prepare a contract such as the one I wrote earlier. It was a contract in every sense except that should a claim have ever been taken to a MVD disputes tribunal it wouldn't have held up.

But for a private sale or in today's trading environment under the FTA it would be fine.
You certainly wouldn't want to be adding any clauses that dampen down it's message.
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Postby GX61 Mark II » Mon Nov 02, 2009 11:35 pm

OK thanks for the reply - that makes sense. I definitely think the example that you wrote above is great for a private sale.

If it was for a business or someone classifed as 'in trade' (these days) then I think you need something like I mentioned in there, but you can often see ignorant businesses/business owners making the mistake of attempting to contract out of the CGA without realising, so it is not uncommon.
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Postby phoenix » Wed Nov 04, 2009 6:39 pm

Just going back to the original post - so the only thing the guy found wrong was that the dipstick blew out? And from there the engine is f*&ked because a mechanic said so? (probably after looking at the dipstick in the hoody)


Also slightly beside the point but based on the info in the thread I would be checking the pcv valve. It's probably caused the dipstick issue and the oil leak.
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Postby matt dunn » Wed Nov 04, 2009 8:00 pm

phoenix wrote:Just going back to the original post - so the only thing the guy found wrong was that the dipstick blew out? And from there the engine is f*&ked because a mechanic said so? (probably after looking at the dipstick in the hoody)


Also slightly beside the point but based on the info in the thread I would be checking the pcv valve. It's probably caused the dipstick issue and the oil leak.



Common problem with all turbo cars is that the dipstick blows out when you up the boost.

i.e. ever seen an evo race car without a spring on the dipstick?
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Postby ihavelift » Wed Nov 04, 2009 9:10 pm

i'm a commercial law student and auck uni so i can give you an opinion ...

Basically what a court will look at in this case is whether a contract existed between you 2, and more importantly if that contract was valid. Firstly, he is only 16 so is not old enough to enter into legal contracts. While the fact that he signed a statement saying he was happy with the condition of the car at point of sale, it will probably not stand up in court as the defining document that will get you out of trouble, for the reason stated above. However, this will be merely a district court case so it will be of a big help.

Secondly, the court will look to see if there is offer and acceptance (which there was - you had the car for sale whereever, and he accepted it by coming to look at it and ultimately buying it), legal intention (which there seemed to be as you both had the intent of exchanging the car for cash), and consideration (which is the money he gave you, however much that was).

With those elements proved, the court will then move on to looking at the ad you placed (make sure you bring a copy of the ad to the proceeding) to see if there was anything misleading in it. As long as there's not, and there is a signed document saying that he was happy with the vehicle, it shouldn't be your problem. He took the car, gave you the cash so really it's all on his back.

The only thing i'm not sure about is that he's under 18, but that shouldn't be a problem considering the fact that you did everything right and he was just an idiot that blew up the car.

That's my 2c anyway, sorry for the essay but hope it helps somewhat.
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Postby MercuryFree » Fri Nov 06, 2009 10:08 am

TRD Man wrote:There is no certainty. Tribunal referees are individuals and often given to making some outrageous decisions.
However, with considerable experience of this system, I'd suggest that, if it goes to a tribunal, they'll very likely award against you to the tune of at least half the repair bill, probably more.

At which point you call bs, appeal to the district court, get a judge who knows what they're doing, and have the result reversed? lol.

If it gets that far I'm pretty sure you could get a mechanic / similar to take a sample of the petrol in the tank and get a science nerd confirm that it's diesel :lol:

ihavelift wrote:i'm a commercial law student and auck uni so i can give you an opinion ...

Basically what a court will look at in this case is whether a contract existed between you 2, and more importantly if that contract was valid. Firstly, he is only 16 so is not old enough to enter into legal contracts. While the fact that he signed a statement saying he was happy with the condition of the car at point of sale, it will probably not stand up in court as the defining document that will get you out of trouble, for the reason stated above. However, this will be merely a district court case so it will be of a big help.

Secondly, the court will look to see if there is offer and acceptance (which there was - you had the car for sale whereever, and he accepted it by coming to look at it and ultimately buying it), legal intention (which there seemed to be as you both had the intent of exchanging the car for cash), and consideration (which is the money he gave you, however much that was).

With those elements proved, the court will then move on to looking at the ad you placed (make sure you bring a copy of the ad to the proceeding) to see if there was anything misleading in it. As long as there's not, and there is a signed document saying that he was happy with the vehicle, it shouldn't be your problem. He took the car, gave you the cash so really it's all on his back.

The only thing i'm not sure about is that he's under 18, but that shouldn't be a problem considering the fact that you did everything right and he was just an idiot that blew up the car.

That's my 2c anyway, sorry for the essay but hope it helps somewhat.


Hah, good study prep huh. Finished my commercial law major a year ago and that all sounds right, good luck with exams? :p

Also, whoever said the contractual mistakes act would apply is wrong.
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Postby ihavelift » Fri Nov 06, 2009 10:36 am

ahahaha cheers mate
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