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Private Car Purchase – Reliance on Verbal Advertisements

By neo - 15 July 2014 38

Recently I’ve bought a used car from a lady in Jerrabomberra. It’s a BMW 320i 2009. The car was registered under her company name.

When I inspected the car, she said the car was equipped with a CD stacker. I believed her and did not test that. After I bought the car, I tried to load CDs into the CD stacker and could not do it.

I texted her to ask about that: “Hi R I don’t know how to load CDs into the CD stacker. The manual says the stacker is in the luggage area but I couldn’t find it. How did you do it. Thanks”

She replied to me: “Hey! I never used it, but you feed them into the dash. I think you push 1, load cd. Then push 2, & load cd and so on”. I kept the SMS on my phone as evidence.

I tried again but failed to load CDs in so I called her. On the phone she once again confirmed that the CD stacker was a standard feature of this BMW. Unfortunately I did not record this conversation.

Finally, after consulting with a BMW dealer, it turned out that the car did not have a CD stacker. They quoted me $2,500 to install it.

The lady refused to pay for that. She said she was not liable because she did not advertise it on the website. However, I know that in commercial law, verbal advertising counts. Therefore she has to be responsible for what she told me at the car inspection.

I brought the case to NCAT but at the hearing they dismissed my application because that was a private sale, not a car dealer sale. They told me that I had to lodge it at civil court.

Now the only proof that I have is the SMS between me and her. I am wondering if the SMS is strong enough to support me. It’s highly appreciated if anybody who had the same experience or know about commercial law could give me some advice. I also want to know what is the procedure and cost to apply this case to local civil court. Thank you very much.

What’s Your opinion?


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38 Responses to
Private Car Purchase – Reliance on Verbal Advertisements
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Bombersfan 10:56 pm 06 Aug 14

Thank you for the good laugh of reading through this. This must be a gee up? You can borrow my old cassette player and I will make you a mixed tape of your choice if you like.

Taking legal action against someone who you admit probably just made an innocent mistake? Asking $2500 for outdated technology that is worth about $100?

It must be a gee up.

jaff067 4:33 pm 19 Jul 14

One could argue that one (1) CD is a stack and a short one at that.

bigM 2:30 pm 19 Jul 14

you need to get over it
You are putting all the blame on this female, who by all accounts made an innocent mistake, and you don’t appear to be taking any of the responsibility for not checking it for yourself. You have made the mistake, you failed to check it, you are ultimately responsible. You can quote as much legal speak as you want, but its not going to change the fact that you stuffed up and now want someone to pay for it.

put it down to one of life’s lessons and take some personal responsibility.

On a side note, would have you not have purchased the vehicle if she said it didn’t have a cd stacker? I have to say, strange selling point.

Masquara 12:43 pm 19 Jul 14

Neo I appreciate your angst and annoyance, but you are saying that you think the seller wasn’t deliberately deceiving you.

You also say that you can fit 100 songs on a single CD, and the car can play MP3 CDs.

100 songs is about 300 minutes, no? You shouldn’t drive more than two hours without a break.

So I can’t quite see the need for a CD stacker.

By all means, though, find out the price of a better, cheaper solution, and write to the seller suggesting a compromise. You don’t need a lawyer to go to the small claims tribunal, I think you have to lodge a small fee. I’m not sure whether the fact that she is in NSW would mean that you have to go through a NSW tribunal process. If you in all seriousness think that the stress of hauling the seller through a tribunal will be worth your time (and forget the $2,500, think a few hundred) then go ahead.

More sensible to suck it up and prepare for how you’ll feel when the car actually has something wrong with it and you have to pay a motza to fix it. (Did you get a pre-purchase inspection?) I’m afraid the CD stacker is likely to be overtaken by a much bigger sense of resentment and an “I wish I hadn’t bought a European car for snob reasons” over much bigger sums! You could have bought a brand-new car for less…

Postalgeek 12:17 pm 19 Jul 14

Guess your only option is to sell the car at 10 grand now as it doesn’t have a stacker, and buy a clunker with a CD stacker you can control with buttons on the wheel.

Or bring yourself up to speed with Bluetooth and voice commands.

wildturkeycanoe 12:58 am 19 Jul 14

Neo, how much do you expect lawyers are going to be costing you in anticipation of getting that $2500 back from the person who sold you the vehicle? Do you expect the seller to pay for all the legal fees on top of the CD stacker? As much as you would like to believe in a fair deal with buying second hand vehicles, as many have pointed out, this is a joke. Many a car dealer will promise that a vehicle has this or it has that, but once you sign the title to your name they just smile and wave at you, knowing that the deal is done. Don’t be so anal and just get a CD stacker installed for a few hundred. If you can afford to spend $20k on a car you can certainly spare a month of registration for a mini juke box.

JessicaGlitter 9:15 pm 18 Jul 14

Neo I guess what everyone is trying to say is that even though private contracts should be subject to the same legal expectations as dealer sales, you might find dealers more eager to protect their reputations, that they are better informed as to technical details on the cars they sell and they do have a license to protect by treating you well.

A buyer should always protect himself, and it’s common to agree to purchase a car subject to an independent mechanic’s okay.

But none of this helps you now. The fact is that while you may have rights, you may find them very difficult to enforce. It might be easier to simply return or on-sell the car.

neo 6:11 pm 18 Jul 14

Thanks everyone for spending your time to comment, either your comment was authentic advice or you were just teasing.

I am new to Australia so I have never heard about things like “buyer beware” or “private sales are caveat emptor”. This is an experience for me. However, I know that in commercial law, verbal advertisements are as effective as written ones. That means people should be responsible for what you said, especially in a business transaction.

I am not a liar. At the car inspection, I asked her about the CD-stacker and she SAID yes the car had it. My fault was that I believed her and did not test it. I think she might not intentionally lie to me. She thought the car had it, which was wrong. It was an honest mistake. However, I cannot accept her attitude after I told her the BMW technician had confirmed the CD stacker was not included. She denied everything she told me and tried to get way from taking responsibility.

To those who are laughing about CDs, when I mentioned CDs I am actually talking about MP3 CD. A disc can contain over 100 songs in MP3 format, so what is the problem with using it?

The car does have a single CD drive but that means you have to manually change CD one by one. The CD stacker gives you the freedom to select up to 6 CDs. Furthermore, a single CD drive means you cannot listen to music when you are using the navigation map (because you have to feed the map DVD into the drive)

To those who found my post was amusing, I am glad that you had a good laugh. But please think about the situation when you choose to believe in the good deed of people and it finally turns out you trust the wrong one.

I’ve posted this case on many forums and discussed it with some people I know. My initial goal was to seek advice from people who had similar experience or people who analyse the case from a legal perspective. I am very sorry if you find my post offending

neo 4:42 pm 18 Jul 14

John Moulis said :

If you are buying a BMW I would have thought that a CD player is the last thing you want. Buy an Alpine radio/USB, put the songs onto the USB stick with your ‘puter or else plug your iPod into the jack. This is much safer and less of a driving hazard because you don’t have to change CDs or cassettes all the time. I use 8GB USB sticks which contain around 800 songs. When it comes to an end (after several months) it begins playing from the start again. Both hands on the wheel at all times.

Using USB or ipod does not give you the convenience of controlling your music by pressing the media buttons on the steering wheel. It will pose a significant risk if you have to look at the small screen on the ipod to select songs while you’re driving

neo 4:36 pm 18 Jul 14

justin heywood said :

neon, have you considered the idea that she may genuinely have believed it had a CD stacker?

You said that the car’s manual described it. She said she had never used it (understandably, as it’s pretty old tech now).

I’m sure my car has one, but I’ve never used it either. If I was selling it, I too might say that it had one, but I wouldn’t dig out my old CDs to check, as it’s not a major feature of a car for most people. And the fact that you’re asking full freight ($2,500) seems a bit much for what was quite possibly an honest mistake.

My advice would be to walk away and check it yourself next time. Once you get the lawyers involved, you’ve already lost.

Thanks for your advice. Yes I also think that she did not intentionally lie to me. She thought the car had it, which was wrong. It would not be a big deal if she admitted it. I am just not happy in the fact that she was aggressive and tried to deny what she had told me. She should be responsible for things she said

neo 4:23 pm 18 Jul 14

Felix the Cat said :

Just buy an in-dash CD player from Super Cheap Auto/other car accessory outlet for $100 and be done with it mate.

http://search.supercheapauto.com.au/search?w=cd

yes the CD player is cheap but integrating it into the dashboard of this BMW and wiring it to the music controller on the steering wheel is expensive

milkman 7:04 am 18 Jul 14

With a name like Neo, shoulda bought a Mazda 3…

gazket 5:03 pm 17 Jul 14

you’ve bought a $20k car and didn’t look at it properly. suffer in your jocks.

Solidarity 12:48 pm 17 Jul 14

All private sales are caveat emptor, end of story.

knuckles 9:53 am 17 Jul 14

You have to let it all go, neo. Fear, doubt, and disbelief. Free your mind.

Cerdig 4:16 am 17 Jul 14

I’d say the lady made an honest mistake. And you made a mistake in not checking it out before you bought it, if only to make sure that it was working. Even if you had a case for making her to replace it, it would be a 5 year old stacker not a brand new one. It just isn’t fair or reasonable to expect her to fork out $2500 to get you a new stacker. As everyone says, it’s obsolete tech now and you’d be much better off with a usb player of some sort.

Dork 3:34 pm 16 Jul 14

Are you sure you aren’t loading records into it?

No but actually this poster has put the same post on a bunch of different forums. So I can’t help but think it’s for real.

Surely though, you would be asking for the difference in price between the same car with a CD stacker, not the cost to fit a new one?
It probably didn’t add any value to the car, and you’ll probably take everything you can get. I don’t why you want to go after someone who made an honest mistake for something so trivial.

bigM 3:11 pm 16 Jul 14

this is very amusing.
More on with your life, sh*t happens

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