If this doesn’t convince you of our urgent
need for an independent car industry ombudsman – nothing will.
I’m John Cadogan from AutoExpert.com.au – the place where Aussie new-car buyers save
thousands off their next new cars. Hit me up on the website for that … but after watching
this I’d be quite surprised if you were to ask me about acquiring a new Ford. Really
surprised. Paul and Jo Dale, from Darwin in the Northern
Territory, Powershit Ford owners, they reached out to me on the 30th of August – jubilant
that they had won their case in the Northern Territory Civil and Administrative Tribunal,
NCAT. Jo Dale was succinct. If you would like a good news story I took
my Ford dealership to court over my lemon powershit and won (yesterday). As in court
ordered refund. Feel free to get in touch. I want my story told with the f bombs it deserves.
The shining beacon of free speech that is the NT News, owned by founding Teenage Mutant
Ninja Turtle Rupert Murdoch, corroborated Jo Dale’s story.
A COUPLE who bought a faulty car from a Territory dealership has had more than $25,000 returned
to them after winning a case in the Small Claims Tribunal.
The Dales were also awarded costs, which is uncommon – with a total settlement of $25,826
ordered by Sally Gearin who presided over the NCAT hearing. NCAT’s cases are capped
at a maximum of $25,000. Ms Gearin’s findings included a determination that the total damages
suffered by the Dales was $30,921.64 – not an inconsiderable sum, for average people.
Sally Gearin found: I am satisfied the Applicants have proved
their case. They should have been advised of the transmission problems experienced with
the TCM when they purchased the vehicle. After the concerns raised were not fixed, it was
unreasonable for the Respondents to expect the Applicants to drive a vehicle which was
clearly unreliable in its performance. To do so would be to expect the Applicants to
risk their lives or damage to themselves and or other road users with the vehicle’s erratic
and unpredictable performance. Ms Gearin also found that the (quote) “failure
to provide a vehicle that is consistently safe constitutes a major failure” (unquote)
under the Consumer Law. She awarded the maximum possible compensation.
The dealer – Red Earth Automotive, which apparently trades as Hidden Valley Ford in Darwin – was
thus compelled to pay the $25k (and change) – leaving Mr and Mrs Dale about $5000 out
of pocket, albeit burdened by one less shitbox Ford. This is after about 18 months of Powershit
ownership hell. Mr and Mrs Dale relied on testimony from an
expert: Glenn Allemand – who (in so far as I can see) basically corroborated the known
fact that the Powershit transmission more than lives up to its moniker, and cannot be
fixed. Ms Gearin, who ran the hearing, concluded
that Mr Allemand was a more reliable expert witness than the dealer’s witness, Chris
Hillyard. She found: “Mr Hillyard does not have the specific
transmission qualifications of Mr Allemand and his attempt to minimise the dangers inherent
in the problems experienced by the applicants was not helpful or believable.”
So, Mr & Mrs Dale’s expert was better qualified, more believable and independent of Ford. You’re
thinking this is a victory for the good guys, right? Keep watching.
Against the backdrop of this majestic Top End courtroom drama, is of course the ACCC’s
proposed Federal Court reaming-out of Ford Australia over its alleged unconscionable
conduct concerning the Powershit transmission generally.
That matter is before the court – but without speculating on the likely outcome you’d
have to presume the ACCC is proceeding with that action on the basis of the facts its
investigation has uncovered, and the balance of probability of achieving a successful prosecution
– otherwise it’s just a chronic waste of public funds.
Anyway, I’d been back and forth with Jo Dale by e-mail for several days. Frankly I
got a bit worried when she started discussing singing in the shower, and sending me the
song. Slightly too much information there. But, hey, Northern Territory. After four days
I attempted to temper Jo’s exuberance thus: “Let’s see what ultimately happens. I
hope the story doesn’t get better (for me). Perhaps they will appeal to a higher court,
just to be arseholes.” And I have to say that sometimes it’s not
fun to predict the future. It’s just not. On the 12th of September – less than two weeks
after being awarded the maximum settlement available to NCAT, Mr & Mrs Dale learned that
they were probably going back to court. Red Earth Automotive – a euphemism for Hidden
Valley Ford in Darwin – is taking them back to NCAT, and asking the tribunal to reverse
its decision. The Dales are now defendants – although NCAT calls them ‘respondents’.
The dealer is seeking the earlier NCAT ruling in favour of the Dales be stayed, for now,
and ultimately reversed, and it’s making an application that the Dales pay the dealer’s
$500 fee to file this application to appeal. None of this is of course giving me pause
to reconsider my view on the ethical landscape inhabited by car dealers, but because the
matter is before a court, I am very limited in what I can say. I make no comment on the
proper outcome here, which is for NCAT to determine.
The dealer alleges, in its application: There was certainly no major failure to comply
with any of the statutory guarantees so as to give rise to an entitlement to a refund
or replacement vehicle. The dealer also alleges (I’m paraphrasing)
that their expert was in fact better than the Dale’s expert. But it was this statement,
right at the end of the dealer’s application that I found most telling about a car dealer’s
ethical orientation. The dealer wants NCAT to press pause on paying
the $25 grand and change because, apparently: “…there is a real risk that if this application
succeeds the Applicant will have difficulty recovering the sum of $25,826 from the Respondents,
rendering this application futile.” Personal opinion: This action by the dealer
seems incredibly petty, and also counter-productive. If they were to pay the compensation as originally
determined, they get the car back, they tart it up, they sell it to some other poor, uninformed
bastard. They’re only out of pocket the difference between the $25k and what they
get for the shitheap when they sell it. If I were the dealer I would: a) kill myself,
and b) carefully consider the real cost of the reputational damage such apparently churlish,
vindictive action has on the enthusiasm of people in the market to engage with my dealership.
If you wanted to turn people away, right, putting a customer’s head in a vice, publicly,
is, I’d suggest, a very effective deterrent. If I were Ford, I would have a quiet word
with the dealer vis a vis reputational damage to the brand. And if I were you, I would carefully
consider this matter in the interests of managing risk effectively in respect of any future
car purchase in the Top End. I really would. This is, of course, why we need an independent
car industry ombudsman. This is not the first such ‘at all costs’ court appeal action
I have seen a car dealer take against a customer. Not by a long shot. It’s often ego out of
control in concert with the cunning arsehole plan to crush the desire to fight for a fair
go by waging a war of financial attrition. The fundamental asymmetry of you versus a
dealer, or you versus a carmaker, is as absurd as it is apparent. It makes Consumer Law a
joke – because you can only get the justice you can afford. It’s simply not a fair fight.
The Federal Government – and in particular Michael McCormack, the minister in charge
of consumer affairs – needs to stop playing pocket billiards and sucking up to the car
industry’s arsehole lobby group. It’s just not helping. Personal opinion.
Here’s a novel suggestion: How about, instead, Mr McCormack gets off his arse and levels
the damn playing field so that ordinary people – you know, the ones who elected him to represent
them – so that they actually get a fair go over the second most expensive purchase they
will ever make, and upon which their mobility depends.
Mr McCormack: Put an ombudsman in place – and preferably not the former chief counsel for
Fiat Chrysler, or somesuch. Someone actually independent. I’ll be waiting for hell to
freeze over on that. You can contact the minister via his website – michaelmccormack.com.au
– let him know what you think. And of course, tell him I said ‘G’day.’
I’m John Cadogan. Thanks for watching.