Third gearbox installed - failed within 24 hours, help needed to reject / refund car purchase

[robster234]

Hi,

 

Please can anyone help me with this:

 

I have just had the 3rd (yes third) gearbox installed in my car, this gearbox has now failed after less than 24 hours and 50 miles!

 

The story: Purchased from main dealer an 18 month old car in September 2014 with 7500 miles on the clock and balance of 3 year manufacturers warranty Car: Make MG, Model MG6 (petrol)

 

Gearbox number 1:

This is the original gearbox: noticed by end of 2015 (approx 28000 mile total) that gearbox 'crunches' when changed from 3rd to 4th gear quickly (yes this is a standard manual gearbox).

 

Went to dealer in March 2016 to complain about gearbox (and other warranty faults), they drove car and agreed with me about gearbox. Manufacturer agreed to replace gearbox and new gearbox arrived at end of April. I couldn't leave car with the dealer at this time as I was on standby to work abroad for a number of weeks.

 

Gearbox number 2:

Finally got gearbox replaced at beginning of June. New gearbox was worse! Not only does it crunch in 4th but it also whines (like an old mini) in 2nd.

 

Car returned at beginning of July to look at again, dealer agrees it is not correct but "doesn't know what manufacturer will say as it's out of warranty". Told them "don't care fault occurred in warranty period an has not been resolved - actually made worse". Manufacturer eventually agrees to send an engineer from the factory to look at my car who came last week.

 

Manufacturer has agreed that the new gearbox is faulty but they will only supply a replacement 'box if I don't complain about it crunching in 4th as this is a "characteristic of the car". This is not entirely true as I have driven one of the loan cars with same gearbox and it does not crunch however the other loan car did, however there is a lot on the internet about failing gearboxes, crunching, stiff changes etc etc. The gearbox obviously has an inherent design flaw.

Gearbox number 3:

The third gearbox was installed 15/16th of this month (i.e. picked up yesterday), this has failed within 24 hours and 50 miles, jammed in second - so car now unusable. This happened first thing this morning

 

This morning:

Called finance company: told them I wish to reject car for refund under sale of good act and consumer credit act, they said they will talk to the dealer and 'get back to me' and that their procedures can take 8 weeks). I have told them I'm not interested in their time scale, I now do not have a drivable car, asked them for an address where I can serve notice of intended court action. Told me that I need to provide burden of proof, I told them this has been fixed under warranty so I have no paper work (dealer has never given me paper work for warranty repairs) - the car is sitting immobile on my drive if they want to inspect.

 

Called dealer: spoke to the MD, he says it's not acceptable, can they collect car and give me a loan car. I can't arrange collection today or tomorrow as am too busy at work. Thing is I don't want this fixed now, too many attempts at a fundamental fault, I have no confidence whatsoever now.

 

What I would like help with:

I would like to claim from the dealer and finance company as they are jointly and severable liable - under sale of good act and consumer credit act - refund and cancel loan agreement.

 

The fault apparently can not be fixed, actually each gearbox is worse. This is a major fault. Could someone point me in the direction of a letter template, and how to handle the court claim - I need to move urgently with this, I am currently having to borrow my wife's car - I can not get to work otherwise.

 

Thanks in advance.

[robster234]

Hi,

 

Thanks for your reply, to be honest I have no idea of how much to claim. I would probably be happy with them just to take the car back, cancel the outstanding finance and perhaps refund me half of the cost of the most recent service (which was done at the same dealer), the outstanding road fund license, costs to change insurance to another vehicle and the fuel (nearly a full tank), plus my deposit and px car value. Therefore I am seriously helping them to mitigate their losses - they are keeping all of the money I have paid on loan repayments.

 

I think this sounds very reasonable?

[BankFodder]

First of all I should say that it is extremely noble of you to be prepared to compromise on the solution that you want to find to this. Your the fourth person that we have been helping on this forum in the last 10 days who has this similar kind of extremely forgiving attitude towards second-hand car industry. Of course, this is a matter of your own personal morality but we will try to point you in the direction of getting the maximum settlement that you possibly can. Believe me you don't owe the second-hand car industry any favours whatsoever and you might find that is this goes on, you will lose your sympathy for them.

 

It may be the solution that you suggested above is the best you can get that we will try to see what is available and then you can make your own choice.

 

Please can you tell us what kind of paper trail you have accumulated in this rather drawnout episode. I'm especially interested in the acknowledgement by the manufacturer that the gearbox was faulty. Have you got written acknowledgement of this and have you got similar written acknowledgement for the other two?

 

Also, I'm extremely interested that the manufacturer only agreed to supply you with a replacement box if you agreed not to make a complaint about crunching in the fourth gear. Did they mean crunching in the new box? Or what?

 

They have told you that this crunching is characteristic of the car. Do you have this in writing?

 

Firstly, this obviously points to a design fault and if you have this in writing from the manufacturer then you are home and dry. Also, I can tell you that any promise that you made not to complain about the crunching in the gearbox is not enforceable at law and we will try to use it against them. However, if you don't have this in writing or some out the evidence of this statement from them, I'm not sure if you would be able to get them to repeat it in some way. Unfortunately although you have been here since 2011, I'm almost certain that you still don't bother to record your calls. If you don't have this "threat" from the manufacturer in writing then you won't have recorded it and so it may not be very helpful.

 

I see that you are still doing things on the telephone. For instance, you have called finance company and you believe that a complaint has been set in motion – but you don't really know what they doing about it and I suppose that you don't even have a reference number for your complaint. Did you record the call? Probably not. I think you need to start settling down and becoming a bit methodical about this and gathering your paper trail and gathering your evidence.

 

Please can you let us know about the documentation that you have so far.

 

Also, please could you tell us more about the cost of the car when you bought it, the use you have had from it, how often it has been off the road because of this problem, how much time did this cause you to lose from work et cetera? Have you had the use of hire cars?

 

In other words, I'm asking you to prepare a bullet pointed chronology of the history of this and how it has affected you so that we can begin to assess your losses.

[BankFodder]

Incidentally, I suppose we better start understanding what your liability is to the finance company. Write to them and get a redemption statement. Also, do you have an entire set of statements showing the complete financial history of this loan? If not then get one so that you can understand exactly what you have paid so far.

[robster234]

Hi Bankfodder,

 

Thanks for your reply, I will get back to you with detailed information as soon as I can.

[robster234]

Hi Bankfodder

I have finally been through everything and this is a list of what I can tell you:

 

· Vehicle Purchased on 31.08.14, Price £10382.25 + 6 months VED of £112.75 giving a total of £10495. Mileage at purchase 7184. Car first registration date 05.04.13.

 

· Deposit payed of £280 + £220 px allowance giving a total amount to finance of £9995. Invoice made out to finance company and delivery address to me.

 

· Finance agreement date 02.09.14. Initial finance balance of £11,787, current balance £7,465, settlement figure approximately £6100. Months paid of loan 26, loan term 60 months.

 

· Paper trail for loan payments over the last two years in my possession.

 

· I have driven the car for a total of 31000 miles since I have had it.

 

· All of the gearbox replacements have taken place in the last 5000 miles.

 

· Paper trail for these gearbox replacements – I have nothing, the dealer has not given me anything, I thought (probably incorrectly) that this was normal. I do know though that they have a record of warranty work carried out as I have seen it.

 

· Warranty work carried out to date/chronology of events:

 

o CD head unit replaced within 6 weeks of purchase date (CD player never worked on collection) – has worked OK since.

 

o At same time as CD head unit replacement – look at tendency for car to stall when pulling away/jerkiness, excessively high revs required for pull away from a standing start – told looked at is a characteristic of the car (this is described / criticised a lot by many owners in the various owners forum)

 

o 13.6.16 (all the below items were reported (on 29th March 2016) before the end of the three year manufacturer’s warranty):

 

§ Indicator switch replaced due to tendency when warm to indicate right briefly when self-cancelling from a left turn. Replacement exhibits the same fault – not fixed/resolved

§ Interior Trim around rear window replaced due to warping in sunlight/heat. Replacement warped within 6 weeks – not fixed/resolved

§ First gearbox replacement – crunches when changing quickly into 4th gear (from 3rd). Told when collecting car that the new gearbox is not much better. The reality was that the new gearbox was worse! Not only did it still crunch in 4th gear but it whined loudly in 2nd gear and to a lesser extent 4th gear.

 

o Approximate date 11.07.16: Car returned to dealer to witness whining gearbox, dealer agreed not normal but didn’t know what manufacturer would do as ‘now out of warranty’ I told them don’t care if it is out of warranty, replacement supplied to fix a warranty item is worse. Subsequent to this they inform me that an engineer from the manufacturer would inspect the car.

 

o 27.09.16: Car taken to dealer for engineer from manufacturer’s to inspect. Picked up later in day and told by dealer they would have to wait for report from the manufacturer.

 

o 7.10.16: Hear back from dealer – they have the report from the manufacturer. They accept that the gearbox is noisy and will replace FOC on the understanding that I do not complain about the 4th gear crunch anymore! State that it is a characteristic of the car (that old chestnut!) and that I should change gear slower. I told them that I am not happy but I want the gearbox replaced. I do not have this in writing.

 

o 15.11.16: Car taken back to dealer for gearbox replacement.

 

o 16.11.16: Car collected from dealer, actually the new gearbox doesn’t seem to crunch

.

o 17.11.16: Car driven and gearbox now gets stuck in second gear (permanently in 2nd gear), manage to get car home via a route that does not require me to put the car into reverse. I drove car onto my driveway which it is now blocking my garage as I cannot now select reverse to get it back off! This has occurred within 50 miles and 24 hours of gearbox fitment.

 

o 17.11.16: Call finance company to complain state that I intend to reject the vehicle under sale of goods act – require refund/cancellation of finance. Car not of satisfactory quality/fit for purpose. They told me they will contact the dealer and that their processes take ‘up to 8 weeks’. I told them I don’t care about your processes, give me an address where I can send formal notification of rejection and serve court papers – they gave me an address.

 

o 17.11.16: Spoke to dealer, they want to collect the car and give me a loan car, told them they can’t collect at the moment as I need to be in work. Told them I don’t want car repaired, I am rejecting it under sale of goods act. That is how it is left at the moment. I do want them to collect it though as it is an obstruction at the moment. Will likely call them tomorrow and tell them to collect on a Saturday or out of hours weekdays as can’t spare yet more time off work for their convenience.

 

· Total trips to dealer for warranty work: 7 (each trip means I lose two hours of my work day which I have to make up in my own time).

 

· I do not have any calls recorded (I didn’t know this was legal).

 

· The manufacturer (or dealer) has never given me anything to acknowledge that the gearboxes are faulty, however all replacements have been FOC.

 

· Every time the car has been into the dealers for warranty work I have been given a courtesy car FOC.

 

I look forward to hearing from you and thanks in advance

[BankFodder]

You haven't told me whether you have anything in writing confirming that the dealer has admitted that the crunching is a characteristic of the car and that you have been told as a condition of fitting a new box, not to complain about it.

 

I'm not sure that you have any right of rejection here. The reason is that you have enjoyed at least 26,000 miles of motoring for more than two years without any unusual problem. This means that you have had quite substantial benefit from the contract.

 

I think you are in a position where you need to start calculating your losses and come up with a figure to compensate you for what you've been put through so far – and also to fix the car.

 

I'm a bit concerned that there is no paperwork relating to any of the work done. I find this extremely unusual, and I'm surprised that you have accepted this. I think that you need to contact the dealer and start getting all of the paperwork. Are you sure that every time it is a new gearbox which has been fitted – or could it have been some second-hand box?

 

I must say that having looked at your methodical explanation in the post above, I do think that your original suggestion that you would be prepared to accept a situation where they simply took the car back and wrote off the loan, is actually not a bad idea – certainly from your point of view. You're effectively saying that you will settle the whole thing for a payment of about £6000. I haven't done any calculations, but this feels pretty good to me – and maybe more than you would be entitled to. If the car was repaired so that it had a functioning gearbox in it, what do you think it will be worth if you sold it privately? What you think it's trade-in value might be?

 

I certainly think that you are right to have the car collected and I would work strenuously to make sure that that is done. Let me warn you, that if you make it clear to them that your position is that you are trying to reject it under the sale of goods act, then you effectively release them from any obligation to provide you with a loan vehicle. On the basis that you may not be entitled to reject the car, I would try to work with the garage so that you get the benefit of the loan car, so that they take your car away, and so they start dealing with it. It's very possible that the whole thing is going to take quite a long time because it is become extremely complicated. If you're not careful, you could find yourself without any loan, and no solution. Of course, you could start suing the garage immediately and join the finance company to the action, but it will still take a long time – probably the six months before you get a hearing – and I suspect that if it did go that way, that the judge will only make you a partial award – and maybe less than £6000 depending on what he considers is the value that you have had out of the car and what its remaining value is.

 

You could certainly begin a legal action straightaway and that is normally my style, but in this case if you get a loan vehicle out of it then I would be tempted to try and string it along. The other thing is that the dealer probably doesn't know what your rights really are in this – meaning what his rights are either. He may not realise that you don't have any entitlement to reject the car and he may feel that his liability is actually to give you a refund. I don't see any point in distributing him of this belief – if that's what he thinks. However, I think that you need to be sure that it is being sorted out and that there is an agreement in sight before you start giving up a loan car. A free loan car for several weeks could really bail you out the problem and will also save you a lot of money in the short term.

[robster234]

Hi Bankfodder,

 

Thanks for your prompt reply!

 

In answer to your first question, no there is no paperwork from the manufacturer with regards to not complaining about the gearbox (unfortunately) and if there was then it would be cut and dried as far as I can see.

 

I can see what you are saying about myself having substantial enjoyment however I have paid for this to the tune of £2400 / year so it hasn't come free. In fact it has cost me over £4800 to date for soemthing that has never been right. I have also come across established Case law (Clegg v Olle Andersson T/A Nordic Marine [2003] EWCA Civ 320) which dealt with rejection after six months (sucessfully).

 

I know that you say you find it unusual to have no paperwork (and so do I to be honest when thinking about it) but I know of other people who have never had any paperwork for waranty repairs.

 

The gearboxes that have been fitted have always looked brand new, there are so few of these cars sold that I would think even obtaining a second hand gearbox is unlikely.

 

If the car was repaired and working then it would probably be worth £4500, unfortunately I can not sell it even if I want to as the finance company have attached a finance HPI marker to it.

[BankFodder]

I haven't looked at the case that you have referred to. However, rejecting the contract beyond a six-month period or a one year period or two year period isn't a problem. It is about voiding the contract "ab initio" is basically means that the contract is cancelled retrospectively to the beginning and you then take the position that you had no benefit whatsoever and you are entitled to a full refund. I think it would be difficult for you to argue this position if you are challenged on this.

 

However, as I have said, there is no harm in trying and using this is your initial position. However, it will be worth your while fully understanding your fallback position – and your suggestion that the contract is simply written off at this point and that the car is taken back and the finance deal is treated as satisfied, looks pretty good to me – if you can swing it. I doubt whether the finance company will be very happy.

 

 

 

Certainly, if you want to keep control of this dispute, then you already have the moral/legal high ground in terms of the fitness of the goods. However, I think that you need to understand exactly what your losses are and what is achievable in terms of a final settlement.

 

As I have already pointed out, the whole thing is a mess and of course you don't really know anything about the provenance of the gearboxes which have been fitted so far. You think that they are probably new – but they may not be. It seems to me that if you are prepared to give it one last go – but this time do it methodically and in preparation for a final severance of the contract, this might be in your best interest. This would mean the you accept the dealer's offer to have a look at the car but make it clear that when another gearbox goes in, that you are given the full paperwork for it including serial numbers et cetera to establish its provenance and that it is accompanied by a proper guarantee appropriate to a new item. I think that you will need to get this in writing. I think also you would need to get them to agree that if this one fails, that there will be no question about taking the car back and bringing the finance to an end. This would allow you to take the loan car in order to minimise your inconvenience, and also provide for a clear solution in the event that a fourth gearbox goes wrong.

 

This may not seem the best solution to you at the moment, but it seems to me that it could be a solution which minimises the inconvenience to you, which creates to the dealer and anybody else that you are desperately trying to be reasonable and cooperative and at the same time making sure that there is a clear agreement as to what will happen in the event of further failure. If there is further failure, then hopefully if you have carefully negotiated the agreement which I have suggested, then the way forward will be clear and a lot less complicated than it is now.

 

The only other solution would be to consider bringing a legal action, but this will mean that you will be out of pocket and without a vehicle for some considerable time and I expect that eventually any award of damages would take account of the use which you have had so far. I'm convinced of this.

 

One further factor that you need to consider is that if you try to sue for a full refund, are you intending to sue merely for the purchase price? Or the purchase price plus interest that you have paid on the loan? That is another complicating factor, but either way it takes you over the small claims limit on to the fast track. That means that in the event that you lose – or that you don't get what you asked for, you will be at risk of some measure of costs.

 

Eventually, a small claim action for a figure less than £10,000 and which represents the value you have paid less the value of the enjoyment you have had, would probably be more winnable and would not carry any risk of costs because of the small claims rules.

[robster234]

Hi Bankfodder,

 

Thanks for your latest reply. The maximum I would be looking for would be to clear the finance owing and some other smaller amount total just over £6500 so well below £10K.

 

Ideally I don't want this at all though, I want them to cancel the finance, and refund me the initial deposit, px price and some minor out of pocket costs.

 

I am not looking for a complete refund.

 

I have done some more digging today and have found something that may (or may not) be a game changer: I have obtained the manufacturer of the gearbox datasheet, it states that the gearbox is rated to a maximum input power of 95kW. But my engine is rated to 118kW output so the gearbox is 20% underrated for this application ie. it is not suitable. Could I use this as evidence of a fundamental design fault which can not be rectified?

 

Thanks

[BankFodder]

Brilliant. That is a great find. I think that that puts you in a very powerful position because it looks as if they have simply exceeded the capacity of the gearbox – presumably in order to cut costs and to sell these models using existing parts rather than creating new parts that are suitable for the job.

 

I wonder if there is any way of finding out how many of these models they have sold.

 

Anyway, I would have thought that this is such damning evidence of negligence – and maybe even recklessness on the part of the manufacturer, that this puts you in a very powerful position to dictate terms. The rest for them is that this kind of scandal could get out. This may well explain all of the crunching problems which are experienced by this model.

 

I wonder whether it isn't worth dealing directly with the manufacturer because they will be particularly interested in dealing with this is quite as possible. He would certainly be much easier to deal with one party rather than the complication of having to deal with the dealer and the finance company at the same time.

 

How are you relations with the dealer? Are they good? The dealer might be very interested in what you have found and may be prepared to join forces with you because it could be in his interests to challenge the manufacturer as well because this whole business has caused him a huge amount of trouble

[robster234]

Hi Bankfodder,

 

I will speak to the dealer later today as they are still waiting for a call from me to tell them when to pick the car up. When I call them I will speak to the MD and tell him of my finding. It would not surprise me if they are unaware of this fact.

 

The relationship with the dealer has not totally broken down, however I was very angry with them when I spoke to them last Thursday.

 

I can gauge by their reaction then which way to turn.

 

Will update in due course!

 

Thanks