Faulty Used Car Dispute

[Renren212]

Hello everyone,

New to this forum but hoping someone can offer some advice on an unfortunate situation I've found myself in.

Its a really long story already so I will try not to waffle and not miss anything important, but apologies for the length. I have all of the below communication in texts or emails, nothing has been done by phone.

So I purchased a car just over a month ago, from an apparently reputable dealer. Car is 4 years old and on 33,000 miles, purchased for circa £25,000. Before I agreed to the purchase I requested that they check a specific fault was not present as I had seen a few people had mentioned it on the owners forum, to do with the gearbox, I had only found out about this the day before. I have since found out, the fault only appears when reverse is selected and the car is stone cold and has not moved overnight or for an extended period of time, so likely wouldn't have been apparent even if I had viewed it. I provided a video of the fault on another owners car so they could check and the dealer confirmed that it sounded awful and the car definately did not have this issue. I couldn't view the car in person as it was during lock down and in hindsight, yes I do wish I'd waited, however a good price had been negotiated for the vehicle so I went ahead in good faith, also based on their very good reviews.

Fast forward to day 30 of my ownership, the car had been in the garage overnight forward facing for the first time, I went to select reverse and 'crunch'. There was the sound of the fault. I immidiately informed the dealer (the owner) who advised me (after saying it was my car and therefore my problem, I corrected him based on the CRA) to use the warranty and go and get it diagnosed, stating not to worry we would sort this between us. Somewhat reassured, I took the car to a garage associated with the warranty who also happened to be a gearbox specialist - their conclusion was that it was indeed the reverse crunch and I should reject the car as it wasn't as described and was not satisfactory. They said there was excessive play in the prop shaft too meaning they wouldn't consider it 100% safe to drive. They advised that the warranty wouldn't cover the repair as it was deemed inherent and therefore present prior to the warranty, which they don't cover. In their opinion they could fix the fault but it would likely reoccur. If it was left to deteriorate further it could lead to gearbox failure or the prop shaft coming away from the vehicle. I have been promised a written report but still waiting to receive this, as there was only one line on the invoice I received which does not cover the extent of what they told me.

I contacted the dealer with the bad news and stated my consumer rights as the warranty were not wanting to pay and immidiately he changed tune and wanted me to bring the vehicle to him and leave it with his garage to test. I advised that he would need to collect the vehicle as it wasn't deemed safe to drive and I had lost confidence in it. I also believe from the CRA if he wishes to test or repair it is his responsibility to arrange and collect the car. Especially as he is nearly 3 hours from me and the car would need to be left overnight, this seemed an unreasonable request. I sent another text stating I had already attempted a repair and this was deemed impossible so I would like to exercise my right to reject the car. I sent a video of the fault to him which was ignored.

Two days later, I received an email from the owners father stating that the owner was too busy trying to recover his business and he would be dealing with this issue. His father is not a registered employee of the business from the information I can gather so I'm not sure if he should really be handling the issue. However the owner has been cc'd on all communications so I persevered. His father stated that this was simply a known characteristic of the car and I should either get on with it and enjoy the car or sell it on if I can't get over the characteristic. In his opinion any attempt to repair would be time consuming, expensive and often fruitless. A lot of emotional blackmail was included in terms of the current financial climate, which completely I ignored as frankly I don't appreciate this approach when dealing with customers.

I have in the interim between our emails done extensive research on the fault and have been provided with an official Mercedes benz document stating the exact fault and that 'repair of the shaft is now possible', from speaking to a couple of owners they have had the fault successfully fixed by Mercedes benz via change of the output shaft or a new gearbox. Mercedes benz tend to contribute to this repair if the vehicle has fill MBSH but the last service the dealer did on the car was at a basic garage who couldn't update the digital service record so it was unlikely to be approved for any form of contribution. However good news, there is a repair possible. Long story and debate short, the dealer is still refusing to repair, refund or replace the car. He has been very rude and twice stated he truly believes I just don't want the car and want to reject it. Also insinuated it was very convenient that I had noticed this on the 30th day, very assumptive and rude. Hand on heart this was my dream car which I've worked incredibly hard to be able to purchase by 28 years old. I just want the car repaired so I can actually enjoy it or refunded so I can buy a different one direct from Mercedes with a MB warranty included. Either way this will be my car of choice despite the disappointing experience so far and his opinion of my intentions.

His reasonings for his refusal of any action on this are:

1.The vehicle supplied to you was of satisfactory quality, fit for the purpose and as described.
2.The reverse gear issue you complain of is a known characteristic of this model
3. Your car was 4 years and four months old when you bought it and had completed 33,000 miles. It wasn't a new car.
4.The price you paid for the car was commensurate with its age and mileage i.e not expensive
5.You knew that these cars have a tendency to clunk into reverse when cold before you bought the car.
6.The A45 T Matic transmission clunk is a known characteristic of the model and well documented
7.You asked us if the vehicle clunked into reverse whilst we owned it and we confirmed that it had not.
8.You requested that the transmission be serviced before you bought the car and we had the work completed.
9.The reverse clunk wasn't present for the first 30 days of your ownership
10. Our colleague / friend used the car for weeks before your purchase and didn't notice an issue
11. Dealer is not in a position financially to offer any form of goodwill due to covid

Supporting evidence supplied = a YouTube video of the fault and a forum thread discussing the fault and the invoice for the service.

My counter argument is:
1. As per the gearbox specialists findings, the car is not fit for purpose. It is also not as described as it was described as not having the fault. The fault is present.
2. A characteristic would be present throughout the whole model, I have screenshots of a many owners saying they've never experienced the fault
3. As per the unfair trading regs if it was a characteristic I should have been informed of this before purchase as it would have changed my decision upon purchasing the vehicle.
4. The car is of significant value and is not an old or well used car, it is also a premium brand and the top spec model
5. The clunk is not the same as the crunch. A small clunk is a confirmed (by MB) as being a characteristic, the crunch is a confirmed fault (horrendous grinding noise when selecting R with significant engine movement) for which video evidence has been provided and officially diagnosed as the crunch
6. As above
7. Agreed, refer to the text messages confirming the fault wasn't present when it has appeared after a very short period after my purchase
8. This request was in line with the manufacturing guidelines and should have been completed at 30k miles, but wasn't, I requested and pair for the service. Also has no relevant to the fault.
9. It was the first time it had been reversed out and again, not really relevant in terms of proving if the fault existed.
10. This only explains the milage difference between the advert (32k) miles and the milage on receipt circa 33,200. So the colleague put on 1200 miles and no mention of that it was in use or milage would change. I have a screenshot of the original advert.

Additional points:
- the fault cannot be both a characteristic and not present prior to my purchase, surely it is one or the other?
- I have an official MB document showing the fault and the repair
- the car has been inspected and the fault diagnosed
- dealer has no proof fault was not present (even though I asked them to check specifically)
-fault is not caused by wear and tear or driver error and is assumed to be from factory by MB

The dealer seems to think I'm trying to pull a fast one. However I didn't bother to complain that there are 2 dents in the side of the car and a big chip in the windscreen on delivery. None of which were advised to myself or in the advert. There was also obvious traces of cannabis in the gearstick area (not what you would expect from a reputable dealer) and a mileage discrepancy as noted above. None of these were complained about as i am not unreasonable however the gearbox fault is not the same as £75 windscreen replacement or getting the hoover out.

Final word from the dealer is still they are not going to accept any liability for any costs incurred. After seeking advice I am now taking the car to a specialist (one of two in the whole country) of the model to compile an independent report as I'm starting to fear the first garage are never going to get round to sending theirs over to me. I advised the dealer that the car will be going there and a family member who is willing to risk driving it will be taking it. Their response was again flippant, saying its my car and I can do what I want. Also commented that they will obviously find a fault if I have put pressure on and will try and complete pointless and expensive repairs. Another confirmation that they will not accept any liability for any costs due to their points I've listed above. This is before they have even seen the report, which I find is so unreasonable.

Sorry again for the length, I know there is a lot to digest, but believe me this has been massively condensed. On return from the specialist there will be two supposed outcomes 1) fault is not an issue 2) fault is an issue and a quote for repair.

If its 1) I will move on and enjoy the car. If its 2) I am not sure on the best course of action.

I have a solicitor ready to go with sending a letter to the dealer so that's a potential option. However I did pay for the deposit on the car of £1000 via credit card. Therefore would I be better pursuing this with the bank for a claim or legally with the dealer?

Thanks in advance to anyone who got this far and any advice. Really is appreciated.

[pt2537]

Hi there

Under the Consumer Rights Act 2015, you have the right to reject the vehicle within the first 30 days if it is as you say faulty. The Garage is refusing to accept your rejection and refusing to refund you the money then you can report them to trading standards, or your other option is to take them to Court.

One quick question, did you pay a deposit on a credit card at all?

[Renren212]

Thanks for your response - yes I paid £1000 deposit on credit card so wondering if this is a better route to solution.
I think that's the argument that the dealer won't accept its a fault. However this report will either agree or disagree with his opinion and I'm happy to accept the outcome either way. However assuming the fault will be confirmed for a 2nd time, what would you advise would be best?
Dealer has said he is more than happy to defend himself in court.

[pt2537]

Thanks for your response - yes I paid £1000 deposit on credit card so wondering if this is a better route to solution.
I think that's the argument that the dealer won't accept its a fault. However this report will either agree or disagree with his opinion and I'm happy to accept the outcome either way. However assuming the fault will be confirmed for a 2nd time, what would you advise would be best?
Dealer has said he is more than happy to defend himself in court.

Hi there

Ok well you may well have s75 Consumer Credit Act protection. This is a useful point to note, s75 means the credit card provider is jointly and severally liable for the breach of contract. Given the car was under £30k you should push the credit card to refund you the money and give them the car back in return.

The credit card co can then push the garage to give them a refund

S75 means you can go for the full £25k from your credit card not just the deposit. Some lenders do mess about with s75 though, i took on MBNA in a test case on land banking called Mal'ouf v MBNA, and MBNA were ordered to refund all monies paid not just the deposit, so go speak to your credit card co is my advice, and if you need anything further let me know

[Renren212]

Thanks so much for the advice!
A few questions if you would be so kind to advise further...
If the garage were to propose a repair would I be able to claim for cost of repair? I do love the car fault aside and its a great spec I am unlikely to be able to find again. Worst case scenario I would accept a full refund and move on.
Will the garages rejection of my request to repair or refund affect the banks decision?

Thanks again in advance

[pt2537]

Thanks so much for the advice!
A few questions if you would be so kind to advise further...
If the garage were to propose a repair would I be able to claim for cost of repair? I do love the car fault aside and its a great spec I am unlikely to be able to find again. Worst case scenario I would accept a full refund and move on.
Will the garages rejection of my request to repair or refund affect the banks decision?

Thanks again in advance

Ok sorry to answer questions with questions.

Did you reject the car, ie did you tell the garage you wanted your money back within the first 30 days after you purchased the car?

If yes, then you dont have to accept a repair, you only have to give the garage the chance to fix the car if you have the fault outside of the first 30 days. and then you only have to allow them one chance to repair. But it seems to me that this is not the case here, as from my understanding you are rejecting inside the firs 30 days

[Renren212]

No problem, much prefer that you want the facts first

I accepted the first solution to attempt repair through the RAC warranty provided although I understand that doesn't have to be the case and doesnt mean the dealer is dissolved of CRA.

When the first RAC arage said they deemed the repair impossible and that it wouldn't be covered by warranty I had no choice but to reject so that was my stance at that point.

Since then more information has come to light from Mercedes and the repair is possible so I am happy to accept that as a resolution if its still an option . Also a lot more reasonable than asking for a refund in eyes of the law I believe.

Only confusing point is I raised the issue on 30th day (is it within, or does the 30th day count?) tried to resolve through repair, deemed not possible so asked for a rejection on around day 34. Dealer rejected the rejection and subsequent request to repair based on the new information from Mercedes.

Hope that makes some sort of sense?

[pt2537]

Ok now we are getting into techincal points.

If, and its a big if, if on day 30 you asked the garage to repair the vehicle, you may benefit from the waiting period within s22 CRA 2015 which is 7 days, the waiting period extends the right to cancel by 7 days, so if you rejected the goods on day 34 you may well be within your cancellation period.

Seem to me you have a good s75 claim here against the creditor

[des8]

A quick point:
The thirty days runs from the time of delivery, not necessarily the date of purchase.
Are those dates the same? If not have you been counting from delivery or purchase date?

[pt2537]

A quick point:
The thirty days runs from the time of delivery, not necessarily the date of purchase.
Are those dates the same? If not have you been counting from delivery or purchase date?

youre quite right Des8, fortunately i think the provision of s22 will save us here anyway as we asked for a repair on day 30 and rejected on day 34

[Renren212]

Hi both, yes purchase was made on the day of delivery, once the car arrived the remaining balance was transferred via bacs.

I couldn't test the fault was present either as the car was already driven off the trailer (doesn't happen once car has actually moved) and I didn't really think to if I'm honest. I ultimately took them at their word which was a mistake in hindsight, I often choose to see the best in people! The fact it came to light was chance really.

When I reported the fault the owner was actually OK about it initially and said 'get it to a gearbox specialist so we can see what we are looking at' and 'we will resolve this situation, don't worry'. I accepted and did as he asked.

I then subsequently rejected the vehicle after the gearbox specialists findings and asked for them to arrange collection as soon as convienent so we could resolve in a timely manner. He then said I had to bring it to him for his garage to test and I declined as this was unreasonable as first post explains and he had already used his offer of repairing... Albeit that it was executed by myself. That was when his father took over and decided it was simply a characteristic (depsite me telling them it wasn't deemed safe and a possible threat to the user or other road users in the long term)
Its just all a nightmare if I'm honest and very stressful.

[des8]

You do have a number of remedies:
-rejection
-repair
-price reduction

What works be st for you?

[Renren212]

If I'm honest, fault aside, I love the rest of the car so I'd rather go for a repair so I can keep it.

However I am not opposed to any resolution, as it stands I have £25,000 sat in a garage only depreciating in value and I am without a vehicle and start to return to work in the office the week after next, so situation starts to impact on other aspects of my life now.

Will of course have to wait to see the outcome of the AMG specialist, vehicle is being dropped off tonight.

Just wondering the outcome is a repair, do I have to claim prior to the repair being done? Or can I get the repair done and claim the cost back? Only asking as I will start to need the vehicle for driving to and from work.

[des8]

Sec 19 subsections 9 - 11 of cra 2015 which allows for the claiming of damages.