Small claim: Trade sale dressed up as private, car is a dud!

[Digger's Left Boot]

Hi Everyone

 

New to the site, been lurking a while however! I'm currently involved in a dispute. I've uploaded the description of the case as it's quite long and after previewing the post I figured nobody woud want to read it! As a summary however...

 

1. Purchased a second hand Micra for £2225 from a car wash

2. They claimed private sale

3. Car turned out to be a dud!

4. There is no record of the supposed car owner ever owning it

5. I've taken the car wash to small claims

6. They have defended the claim (with lots of fibs!)

7. I'm at the stage of returning the directions questionnaire... To be with the court by 23rd June

8. I would really appreciate some advice as to how to return my response. I've created a response that call each of the defendant's points in their letter into question but it's quite long (7 pages). Is this too much?

9. Do I also return all of my evidence, fully indexed, at this stage?

 

Many thanks, I hope the attachment makes sense.[ATTACH=CONFIG]51606[/ATTACH]

[renegadeimp]

Can you post your poc and their reply?

[Digger's Left Boot]

Yep, I'll just make an edited copy removing names etc.

[rebel11]

Hi Digger

 

Welcome to CAG

 

Have you reported them to Trading Standards via CAB?

 

You should never have payed with cash, always pay with a Credit Card it gives you quite a lot of protection.

 

There is a lot of info in the following link that will help you with your claim, especially a dealer selling a car as a private sale.

 

http://www.shetland.gov.uk/tradingstandards/documents/Guidanceforsecondhandcardealers.pdf

[Digger's Left Boot]

My POC:

 

"My wife and I purchased a Nissan Micra 1.5 diesel car from ##### on 6ht January 2014. Since purchase the vehicle has not been used for its purpose as it spent a number of weeks with #####(a local garage) being investigated. We have been informed by the garage that the car is not fit for purpose and there may be internal damage to the engine. We have been advised that the engine would need to be stripped to diagnose the problem or a replacement engine procured. This would be significantly more costly than the value of the car. The car wash have claimed that this is a provate sale and offered a repair to us that we are expected to pay for. They refuse to provide information regarding who will carry out the repair. We reject this is a private sale and have supporting evidence from the DVLA. The car is no longer in use. We have rejected the car and asked for a full refund which has been refused. I am claiming for the vehicle cost of £2225, inspection fees of £133.06 and postage costs of £16.54"

[Digger's Left Boot]

Hi Rebel

 

Thanks for the link and I agree entirely I shouldn't have paid with cash. I feel very foolish about the whole thing!

 

I will just write up their defence...

[Digger's Left Boot]

And yes, I have reported them to the CAB on the understanding that this would be passed on to TS. However, I've never received any follow up contact and sent an email to my local TS via the council who I am awaiting a response from. I will be phoning them this week to follow up

[rebel11]

Let us know what they say, you'll find this on page 10 of the link:-

 

You must not falsely claim, or create

the impression, that you are acting

for purposes unrelated to your

business or falsely represent yourself

as a private seller

(banned practice 22).

 

And yes' date=' I have reported them to the CAB on the understanding that this would be passed on to TS. However, I've never received any follow up contact and sent an email to my local TS via the council who I am awaiting a response from. I will be phoning them this week to follow up[/quote']

[Digger's Left Boot]

Their defence...

 

"I am writing to totally dispute this claim. I am the owner of (the car wash) and my sole business is washing/cleaning cars. I share the same site with a car sales which is adjacent to me and nothing to do with my business other than I clean their cars from time to time. I did not own the Nissan Micra in question or sell it to the claimant. This vehicle belonged to (the cousin) who advertised it for sale privately and the claimant responded to (the cousin) regarding viewing it etc. I have absolutely no idea what it ws advertised as or for.

 

The transaction was between (the cousin) and the claimant. I did not benefit from the sale all of the money was given to (the cousin). I was present during part of the sale as (the cousin) speaks limited English he asked me to assist in the communication. It was made completely clear to the claimant from the outset that this was a private sale and nothing to do with me. The claimant even confirms his knowledge of this in his letter dated 1st February 2014 that this was a private sale when he first came to see the car.

 

The claimant inspected the car and after viewing it/driving it and checking over was keen to buy the car and paid (the cousin) a £200 deposit but wanted a receipt to prove that he had given a deposit for the car. He was under no obligation to buy the car or leave any deposit. (The cousin) had nothing to write a receipt on and asked to borrow a piece of paper to do this so I gave him one of my slips.

 

I have never offered to pay for any repairs that were required for the vehicle and had no contact from the claimant other than a time when the claimant came to see me and I explained it was nothing to do with me. My mobile number is listed on the top of my receipt for my business which is ############. I never received any communications from the claimant on my number. I am glad the claimant states in his claim that he has documentary proof from the DVLA that he has supporting evidence. It will be completely clear from any DVLA record that this Nissan Micra never belonged to me and was never sold by me.

 

I will be able to provide proof of what I am saying is true. I have contacted (the cousin) about this and he will provide written confirmation that he advertised the car on autotrader as a private sale and contact was made by the claimant to (the cousin) and all transaction deals were solely between those two parties and nothing to do with me or my car wash business. There were also other people who were present at the car wash when the claimant purchased the car from (the cousin) and can be witnesses if required.

 

I am extremely disappointed that the claimant is trying to make a claim against me in this way which I feel is malicious and will seek compensation from him for any stress, legal cost, time wasted or loss of reputation incurred by this case. The claimant should be making a claim against (the cousin) who he purchased the car from and not me.

 

I shall send the supporting evidence in due course once I have obtained this.

 

Yours faithfully

 

Signature (but no name listed anywhere on the claim)

[Digger's Left Boot]

I certainly will Rebel. I have now posted the POC and their defence so would appreciate anyone's thoughts. I have a defence written that I can also upload once I taken out any references to anyone etc.

[rebel11]

Have you done any company searches on the owner, car/wash etc?

[Digger's Left Boot]

Yep. I'm just editing my response to the defendant which should explain that. In a nutshell, the last person to purchase the car did so trader to trader and it the same person that owned the car wash a couple of years ago. He also registered a car sale company on the same site in May. I cannot find the car wash registered anywhere. I only know about the guy owning the car wash a few years back as there was an article in the local paper about it and some disruption with their neighbours. The car wash haven't included any names, other than the cousin, in their responses so I've had to do a lot of research.

[rebel11]

Good stuff.

[Digger's Left Boot]

[ATTACH=CONFIG]51608[/ATTACH]

 

Ok, here is my draft response. Apologies if it's confusing to read with the names/locations taken out etc. For reference...

 

(the cousin): is the alleged owner of the car and supposedly not an associate of the business

-------: Alledges to be the owner of the business

Mr X: Is someone I've never met, but who last purchased the car, trader to trader and owns the recently formed car sale business on the same site. It is also the same person that a newspaper article says owned the car wash under a previous name 3 years ago (I have a feeling he owns both businesses but can't be sure yet)

 

My case has been taken out against the car wash business as that was who the entire transaction was via.

 

Any advice greatly welcomed thank you!

[BankFodder]

I'm just starting to look through this thread.

 

I'm not sure why you think that you need to send this reply to the defence. Please hold off for the mo.

[BankFodder]

Can you let us know something about the sale and purchase dates?

 

How long has he had it?

Has it been taxed or MOT'd - when?

 

In what capacity/name did you sue him?

[BankFodder]

Also, why do you think that it matters particularly that it might be taken as a private sale?

[Digger's Left Boot]

Hi Bankfodder

 

Thanks for the reply. When I spoke to the MCOL helpline they said I need to send in my evidence with my directions questionnaire. Is this not correct?

 

We purchased the car on 6th January. After having it checked out by a garage I tried to return it to them on 29th January. DVLA records show it was purchased at from a dismantlers in November 2013 by someone who I believe is associated with the car wash (I believe he owns it). It is taxed until November 2014. MOT expires November 2014 also. I've taken the claim against the name of the car wash. Other than the cousin they have been evasive in giving any other names. The guy the claims to be the owner calls himself something that isn't his real name and he hasn't printed his name on his defence or in the texts I received from him. I am concerned about this side of things but I dealt solely with the car wash so that's all I had to go with.

 

In terms of the private sale side of things the car wash are saying this is a private sale (that the car belonged to the cousin and that the car wash was just helping him sell it). They say its nothing to do with them at which I obviously know is not true. They bought the car, realised it was on its last legs and I believe they felt that buy pretending it was a private sale they would have no comeback. Do you think I shouldn't worry about this Bankfodder as I thought this was key-if I can show that it isn't a private sale then they have to take responsibility for he car?

[BankFodder]

The questionnaire only needs to be accompanied with evidence which supports the directions or orders you are asking for. There is no need - and no use supplying evidence at this stage which supports your claim against the defedendant. This is not a trial on the papers. It is simply the stage of proceedings where the case is managed. It is merely administrative.

 

It would be helpful for it to be a trade sale - but it is not fatal that it is a private sale. A contract is about creating reasonable expectations in the minds of the contracting parties and then making sure that they are satisfied.

 

It would be especially helpful to establish that it is a trade sale when it comes to enforcing a judgment. But is it the car wash business? If it is the guy who is doing a bit of trading on the side, then you could be hard pressed.

I have to say, that anyone who buys a used car from a car wash business is asking for trouble. Sorry - but there you are. You might as well have bought it from a guy down the pub at closing time on a Friday night.

 

I haven't look through your PDF's. They are far too long for me. It would be helpful if you would say in what way the car was a dud in less than 150 words.

[Digger's Left Boot]

Hi Bankfodder

 

Totally agree. We shouldn't have bought it and I'm at a loss to think why we actually did. Lessons have been learned and now I'm trying to rectify the situation best I can. Even if we don't ultimately get our money back I want to at least make sure it doesn't happen to anyone else. Not sure anyone else would be as stupid however!!! My only rationale for why we bought it is that my wife had helped one of their staff members in his asylum application in her previous work. We got a bit sucked in by how friendly the whole situation was - they're not going to screw us over, surely?!!! We were very wrong.

 

In terms of the car, I don't have the report to hand this moment but the garage have said that the engine either needs to be completely stripped to fix the fault or a replacement engine fitted - either way it's considerably more than the car's value. They have confirmed that this isn't something that would have just happened overnight and it would have had to have been sold in this condition. I can upload more details from the report this evening - it's very much to the point.

 

So am I focusing on the wrong thing here? The CAB have said treat this as a trade sale and that I'm entitled to a full refund (I'm aware that getting it is another matter entirely). This is after both speaking to the national helpline and our local consumer advice charity.

 

With regard to what I now submit the MCOL adviser gave me the impression I needed to submit my evidence so I've been preparing a full pack. Is this incorrect? I've completed the directions questionnaire but I'm now unsure as to what I'm also adding to this if anything? Engineers report? receipt? Copies of the letters I've sent? Or just the questionnaire at this point?

 

Thank you!

[Ganymede]

Hi,

 

Who have you named as the Defendant?

 

You say it isn't a limited company and so the correct thing to do woul dahve been to name the owner T/A as the company name. That is why the owner is referring to himself. You state that you have named no individual but in effect you have.

 

I wouldn't send that reply to the Courtas it is. You can file a Reply to the Defence but it needs to be in the correct format and make sure you.

[Digger's Left Boot]

Hi Ganymede

 

Thanks for the response.

 

I've named the car wash as the defendant. I've not named anyone individually at this stage but I take your point that in effect I have named 'someone'. I'm sorry, what is T/A? Something totally obvious I'm sure but not up to speed on the my abbreviations on here yet! I can't find the car wash as a registered business and I don't believe that the person claiming to be the owner actually is.

 

One of the things I wanted feedback on was the reply to the court as this was a first draft and I had no idea what I was doing! Could you tell me where I can find out about the correct format for this reply and if I need to send it all at this stage as I sensed from Bankfodder's reply that I was intending on sending back too much information?

 

Thanks.

[Ganymede]

You need to name the individual owner as the Defendant as currently you aren't suing a legal entity.

 

For example, "Mr John Smith T/A Smith's Car Wash." T/A means trading as.

 

CPR Rule 15 deals with replies to Defences. The need a Court header and be signed with a Statement of Truth.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#15.8

 

 

I would not include all the references to not knowing who the Defendant is as you've named the car wash etc, that is your mistake in not naming a person or a legal entity.

 

You may need to apply to Court to amend your Claim Form and Particualrs of Claim.

[Digger's Left Boot]

Ok, this isn't what I was advised.. This is throws a spanner in the works.

 

I don't know who the owner is. He hasn't named himself. The only names I have are:

 

- A christian name of the guy claiming to be the owner. I have since found out that the christian name he introduced himself to me as and his real name are very different. Only realised I could actually work this out yesterday using the name on the recorded delivery receipt of my last letter and the likes on their car wash Facebook page!

 

- The cousin who is named in the defence but there is no record of him ever owning the vehicle

 

- The name of the person who last purchased the car and who owns a recently formed car dealership (formed in April this year 3 months after I purchased the car) that shares the site. He also owned the car wash when it was called something else a few years ago. I believe this guy still owns the car wash but I have never met him. I now know I've never met him because I've got the name of the guy claiming to be the owner.

 

So, who should I name on the claim?! Is the problem the fact that the business isn't registered?

 

I've already amended my POC once after messing up the first one online by ticking a box I shouldn't have. Citizen's advice have told me to sue the car wash and did not ever mentioned naming someone.... I'm really confused now.

[BankFodder]

If you are completing an allocation questionnaire then you need only disclose evidence in support of any order you are asking for. Not everything else.

Maybe later on you can make a reply to the defence - but not yet.

 

Also, even if the court finds that it is not a trade sale, it isn't necessarily fatal. However by suing the company and not the guy as well, you have rather put your eggs in one basket.

 

Of course, the CAB are right to say treat it as a trade sale - but they should have advised a plan B. The CAB are very well intentioned - but that might be the best you can say about them.

 

However, as I said earlier, if you get a judgment against the buy, it could be difficult to enforce - whereas the business isn't going anywhere if it comes to the time that the bailiffs have to visit.

 

In princile you haven't done anything wrong but it could have been done more efficiently.

Why don't you tell us about the AQ and what you are proposing to put in in and if you are asking for any orders.