car did not have full service history as advertised

[MARTIN3030]

Yes I understand.

I dont think it needs to be a complicated affair-certainly we should not be putting anything there other than addressing the claimants claim.

Lets not forget-it is up to the claimant to prove THEIR case.

[Conniff]

You are figting this on a breach of contract. You made a contract that you would buy x car with a full dealer service history and what you have received is not a 'full' dealer service history.

He agreed to £300 being witheld until said service history was supplied, so that is what he must have valued the service history at.

[MARTIN3030]

Spot on Conniff-it is not rocket science.

[hunterandthehunted]

cannot just state that though for a defence, can he?.

it needs all the legal lingo etc....

i have had a look around the site but as yet have not found any pointers

as to know how to even start to put it into words...

[MARTIN3030]

Dont worry about it-you dont need to be looking around the site.

This is not a complicated case-it is one of facts rather than actual case law.

Can you send me the exact wording from the POCs -or confirm that those posted here were the exact wording ?

[hunterandthehunted]

martin,

this is exactly as it appears on the court papers...

 

there is £300 owed to me from car purchase xxxxxxxx. i have called the customer and asked for payment to be sent. no payment received. it was agreed that when mr xxxxx received a service book he would forward on final payment. i have sent a service history book through to him. it appears that it was a european service book, i have stated i shall provide him with a uk service book no problem, as i was unaware it was the incorrect booklet for this car. i am awaiting delivery of the new service booklet.

mr xxxxx was FULLY aware of what services the car has undergone as i provided him with a maintainance service print out direct from volvo. he now says he is unwilling to pay the monies owed as 2 services are missing from the booklet. all services were shown at point of sale and i made mr xxxx fully aware of what services the car had undergone. i will provide the defendant with seperate detailed particulars within 14 days after service of the claim form

[MARTIN3030]

Ok

[MARTIN3030]

Ok I have done a rough draft-will send to you for lookover.

[heliosuk]

Er....... now we know what he's actually claiming and why this throws a different light on it. From what you have posted in the past it would seem you are basing the defence on the advert yet the claimant is saying your friend was fully aware of the history at the time of purchase. As explained earlier, the fact that it's a Euorpean book or even a UK one is perhaps nebulous as the fact of the matter is whether or not the history can be substantiated. The interesting thing will be if the history the claimant shows as being from Volvo and if that ties in with yours you expect to get. If it does then all well and good but at the end of the day your friend entered into a contract for a said sum having had it explained what the history was. Now this can't be denied as he witheld payment on this agreement, not what it was advertised as, and it seems the claimant has supplied what was agreed.

 

So arguably it seems like a 50/50 to me at the moment.

[MARTIN3030]

I think 50/50 is a bit presumptious.

Lets put it another way-would the buyer have agreed to the sale if they had known that a FULL service history was not in place ?

 

As I said earlier...the balance of probabilities may well come into play-where the buyer would not have agreed to the sale had they been aware that the vehicle did not have a FULL service schedule,as was advertised.

CPUT 2008 makes provision for this.

The advert of course drew the buyer to enter into the sale.

The Op has already stated that the missing stamps would adversly affect the value of the vehicle.

Whilst the buyer cannot rely on price differentials between trade and retail price as any basis for defence-they can rely on the fact that in the absence of a full service history as was expected,it would have played a part in them agreeing to complete the sale,since this obviously reflected the true value insofar as they are concerned.

 

The seller had a duty of care to the buyer in ensuring that they were able to supply the documentation that supported their advertised content.

[MARTIN3030]

Whatever the opinions-the seller has filed a claim,and the claim has to be defended.

[heliosuk]

This is exactly what I mean Martin. The problem here is that the claimant says that the service history was presented and implies it was accepted by the buyer who agreed to this on the basis he had the book supplied. It would appear that £300 was held back on the proviso the book was supplied.There is no way the defendant can argue otherwise as they made the terms of the deferred payment.

Perhaps the claimant has supplied the documentation in support of the sale agreed but not necessarily that of the advert. If the buyer was not satisfied then he should have negotiated a lower price as it's starting to seem that the claimant might just have a case here.

 

In respect of the defence you seriously need to look at values because at the moment all I can see that you have to go on is this and even then I'm begininng to think it might be weak.

 

To rely on CPUT is weak as the claimant states they showed the history as I would alledge "was known to them at the time".

 

I'm not trying or wish to be negative about this one but there had to be something behind the scenes for the dealer to have gone down the route he's taken. From the earlier posts there had to be something.

[MARTIN3030]

Helios its great that you are still here and give input-thats what spurs people on as you know.

 

"If the buyer was not satisfied then he should have negotiated a lower price as it's starting to seem that the claimant might just have a case here."

 

The buyer would only have been in a position to negotiate a discount once they were aware of any discrepancies.

The seller left it clear that they were not in the market for negotiatons,with threats of Court almost immediately.

 

To rely on CPUT is weak as the claimant states they showed the history as I would alledge "was known to them at the time".

 

 

Its not sole reliance-just something to use in support.

Again -its the defendants contention that the history furnished at the time of sale was not supportive of that advertised.

History meaning FULL service schedules.

[MARTIN3030]

I will consult with site team on this and hopefully get some thoughts.

[heliosuk]

I fully see what you guys are saying, perhaps I'm playing devils advocate. I speak from personal experience here where I got shafted on a point of law though the judge did say she felt it unfair though the law was explicit.

 

The buyer prior to entering into the contract was made aware of what the history was and from the thread promised to send the service book on. This he duely did and I assume it reflected what the buyer had agreed. The fact it was advertised as full dealer history was negated when he showed the history he had and therefore the ad was negated. The buyer bought the item on the basis of the history supplied on the understanding the sellar supplied the book which hopefully correlates to the history given and entered into.

 

The defendant has a very weak defence as he made the sale on condition of a book supporting the evidence he had been shown and this has been complied with.

 

If the history was not supportive of that advertised then he should not have entered into the sale if he felt it was that important but he did in full knowledge as the service history evidence had been shown to him and he witheld £300 for the service book.

 

So on the balance of probabilities he did accept the history as shown.

 

The big crux here is how to defend it. So lets assume the claimant is bang on with his case.

 

How do you defend it?

[Conniff]

 

But then that is his will so if he dosen't want to drop it then go for what you can get out of it and turn the tables so to speak.

 

 

The problem with 'going for what you can get' is that you will be seen to be trying to profit from it. Courts don't like that and certainly won't help you to do it, in fact it may annoy them and they dismiss your claim outright awarding all costs to the claimant.

[MARTIN3030]

Heres my attempt at a response.

Feel free to comment/add thoughts.

 

 

 

I,xxxxxxxx am the defendant in this case.

It is submitted that this is not a complicated matter,that it is a breach of a contractual obligation,and concerns the claimants failure to provide the full and complete documentation to the defendant as agreed at the time the sale between both parties was made.

The agreement at the time of sale,was that the claimant would provide the defendant with the full service history for the vehicle,as was advertised prior to the sale.In the interim period,it was agreed by both parties,that a sum being £300 would be retained by the defendant,and payable to the claimant,once a full service record was produced to the defendant.

The meaning of a full service record is a fully stamped service booklet that documents each and every service interval has been carried out,in accordance to the manufacturers recommended schedule and operations for the vehicle the defendant was sold.

The defendant,in good faith and trust,agreed to the sale,on the basis of the claimants advertised vehicle stated that a full service history/schedule was included with the vehicle.

It transpired after the sale,that the service schedule / service record was missing 2 stamps from its service intervals,therefore the defendant maintains that it was not a “Full” service record within the meaning of the same.

The defendant will say that the claimant misled them by wrongly advertising the vehicle as being sold with a full service history,and indicating that this would be provided after the sale was made.

The defendant has been in contact with one of the vehicle manufacturers official appointed main dealers,who confirm that a service history which was incomplete,or missing verification of stamps between service intervals as recommended by the manufacturer,would have an adverse affect on the vehicles value.

The defendant agreed to buy the vehicle on the basis that it came with a full service history,irrespective of any price differential between retail or trade valuations.

Therefore the defendant submits that the claimant had a duty of care under common law,to ensure that they were fully aware that the vehicle did not have a full service record.

That the Defendant would not have agreed to purchase the vehicle,had they been aware that a full service history existed,and will refer to the Consumer Protection from Unfair Trading 2008.

Additionally,the defendant will say that the claimant failed to exhaust pre action protocols and clearly had little or no intent to try to resolve issues amicably prior to litigating.

The defendant believes that they are entitled to keep the £300 in consideration of the facts as outlined,and will be seeking to recover costs against the claimant for defending this claim,and is awaiting responses from expert witnesses,therefore will be asking to amend this defence at a later date should it be found necessary.

The defendant believes that the claimant has been misguided into making this claim and asks the Court to consider striking out the claimants case.

The Defendant understands that this is at the discretion of the Court.

STATEMENT OF TRUTH

I am the claimant named in this case,and will say that the above is true.

Signed Claimant

Date

[hunterandthehunted]

thanks martin that looks great,

 

in response to helios input the buyer thought and had no reason to think otherwise, that at the point of sale that he was getting a full dealers service history.

[Conniff]

And unless it is a totally chaotic garage, they knew there was no history book when they advertised it.

[hunterandthehunted]

received a letter in response to the letter sent to the seller as in post 8

 

 

 

 

 

Edited June 14, 2010 by hunterandthehunted

[Conniff]

This throws a completely different light on things and I suggest you go back to the dealer

with the £300 in your hand and get the correct service book. End of case.

Edited June 14, 2010 by Conniff

[hunterandthehunted]

why do you say that?

the correct service book which he has still is not full dealer service history as per advertised.

[sailor sam]

I have to say that re-reading the thread and in the light of the info this letter, I have to agree with Conniff. It would appear that the buyer was aware that there was some discrepancy with the service history at the point of sale but continued with the purchase. Perhaps it would of been better had the buyer paid a deposit on the car and completed the sale upon production of the service documentation rather than take this route. after all, I've seen no mention that the car is not of satisfactory quality.

 

According to the seller's letter, it appears the seller has made every effort in satisfying the buyer's demands and personally I think that is the way the judge will see it. I would be concerned that the seller says he now has the correct service book and will relaese it upon reciept of the outstanding £500... er, sorry £300. The buyer in my opinion is taking a risk in allowing this go to court because all the seller has to do is present this service book complete with all the history to win his claim which will end up with the buyer paying costs in addition to the £300.

 

With respect to the OP, going by the 'odd slip' in the accuracy of this thread, has the OP's friend been completely robust in the information he has given? Was the OP actually present at the point of sale?

 

My advice is the same as Conniff's.

 

__________________

Please Note

 

The advice I offer will be based on the information given by the person needing it. All my advice is based on my experiences and knowledge gained in working in the motor and passenger transport industries in various capacities. Although my advice will always be sincere, it should be used as guidence only.

 

I would always urge to seek professional advice for clarification prior to taking any action.

 

Please click my scales at the bottom of my profile window on the left if you found my advice usefull.

[Conniff]

I have since got hold of the correct service book and had it stamped by the garage that done the service.

 

That's what it says in the letter.

[hunterandthehunted]

the only difference between the service books is that it is uk edition instead of european which was originally sent.

the fact remains that the book is incomplete and the advert stated FULL DEALER SERVICE HISTORY. this is what the buyer thought he was getting.

volvo have confirmed that the car has not got FULL DEALER SERVICE HISTORY and are going to put it in writing.

also the letter he has sent is true isnt it????????????? especially the phone call bit. thank god for voice mail.

 

 

the invoice/contract is unsigned by the buyer????????????????????

also the buyer has got the original advert from trading standards which they obtained from autotrader.

Edited June 14, 2010 by hunterandthehunted