Business to business rights Moto Novo

[ShaneG2009]

Hi

 

Im writing on behalf of my brother in law who bought a used van via his limited company in November last year. Recently its been diagnosed that the injectors in the engine are defective and require replacement. This could be a costly repair.

 

The trader he purchased the vehicle from gave him a 3 month return to base warranty which has obviously now expired.

 

After initial queries the owner has come back and said the sale was a business to business sale and not subject to general consumer laws and the rights associated with this.

 

Im not sure how to respond and could do with some help.

 

So i guess the be all and end all is does my brother in law have any rights that would allow him to request a FOC repair to the van (my thinking is the 6 month consumer rule may be relevant in some form?) or does he just have to suck it up because he is not afforded the same consumer rights because the purchase was made via his limited company (which if relevant is very small i.e. 2 directors and sub-contract labour).

 

Finance is with Moto Novo if that is relevant at all?

 

Id be grateful if you could help me out with this one.

 

Thanks

 

Shane

[steampowered]

Hello - consumer legislation won't apply if the van was bought for business purposes (regardless of whether bought by an individual or through a limited company).

 

However, even in a B2B sale, there is still protection. It is just that the old 1979 Sale of Goods Act will apply rather than the new 2015 Consumer Rights Act. Under SOGA the van is still required to be of 'satisfactory quality' and 'fit for purpose' in B2B contracts.

 

The main difference is just that the 'burden of proof' is different for B2B contracts - in the first six months of a consumer contract the trader needs to prove the van was satisfactory quality; in a B2B contract the buyer needs to prove the van was not satisfactory quality.

 

Proving that a used van was not satisfactory quality is difficult though. It is expected that used cars might have problems. So it would probably have to be something very serious that must have been obvious at the time the van was sold.

 

Also, the van will still need to comply with promises/assurances made by the trader. For example if the trader said the engine had been checked and was working fine, then there could be a misrepresentation claim.

[ShaneG2009]

Hello - consumer legislation won't apply if the van was bought for business purposes (regardless of whether bought by an individual or through a limited company).

 

However, even in a B2B sale, there is still protection. It is just that the old 1979 Sale of Goods Act will apply rather than the new 2015 Consumer Rights Act. Under SOGA the van is still required to be of 'satisfactory quality' and 'fit for purpose' in B2B contracts.

 

The main difference is just that the 'burden of proof' is different for B2B contracts - in the first six months of a consumer contract the trader needs to prove the van was satisfactory quality; in a B2B contract the buyer needs to prove the van was not satisfactory quality.

 

Proving that a used van was not satisfactory quality is difficult though. It is expected that used cars might have problems. So it would probably have to be something very serious that must have been obvious at the time the van was sold.

 

Also, the van will still need to comply with promises/assurances made by the trader. For example if the trader said the engine had been checked and was working fine, then there could be a misrepresentation claim.

 

 

 

 

Hi

 

 

Your post is interesting and I thought I'd update everyone with the latest.

 

 

So after reviewing the finance documents with Moto Novo it's clear that my brother in law ordered and is paying for the van himself and not via his company.

 

 

Now on to what might be the sticking point and as referenced above. My brother in law uses the van to commute to/from work in London each day - it is not used for anything else.

 

 

How do you distinguish between ordinary commuting and using for business purposes. Is commuting a business purpose in the eyes of the law?

 

 

We've been arguing with the dealer that my brother in law is covered by Consumer Rights Act (defects identified after 30 days but before 6 months). They've pushed back with no sound logic as yet. Moto Novo seem to be more understand and are reviewing.

 

 

It would be great to have as many opinions on this as possible mind you...

 

 

Thanks

 

 

Shane

[steampowered]

The Consumer Rights Act 2015 applies 'where there is an agreement between a trader and a consumer for the trader to supply goods, digital content or services'.

 

A 'consumer' is defined as 'an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession' (see http://www.legislation.gov.uk/ukpga/2015/15/section/2/enacted).

 

I think buying a van to commute to a fixed place of work would be treated as consumer use. Travel time isn't normally seen as part of working hours. However, if the van is used to move tools about or travel between client sites during the say, then that would be business use, so would take the van outside the Consumer Rights Act if that was the main purpose of the van.

 

I doubt you'll get a good reason from the car dealer. He won't be able to start having technical arguments about whether the Consumer Rights Act applies unless he goes to see a solicitor.

[ShaneG2009]

Thanks for the update, appreciated.

 

 

My brother in laws business is very much in its infancy. He currently only supplies labour to one contract in London, he has no other sites which he travels to / from etc. The van is insured in his name as a personal policy. I think reading your post and the definitions on the link you provided gives us a robust argument that he is a consumer and the defect identified is covered under the legislation above.

 

 

I done some internet research last night and it appears that the injector failure is a common fault on the van in debate. So much so that Watchdog got involved in Q4 2014 and the manufacturers in question offered goodwill replacements for vehicles up to 7 years old or with a set amount of mileage. The van in question is a 2008 registered vehicle - I've emailed Vauxhall on the off chance they may offer a good will gesture repair (I know the vehicle is now older than 7 years but worth a shot to see how friendly they are...the van only has 74k miles so bad for this type of failure early on in its 'life').

 

 

As always interesting and we shall see how things progress.

 

 

Thanks for the input.

[ShaneG2009]

Hi all

 

 

An update

 

 

1) The agreement is a personal HP agreement between my Brother In Law and MotoNovo. It is not a business to business agreement

 

 

2) MotoNovo have issued what they call their final response and say because hes completed approx. 10k miles the burden of proof is on him to prove the defect was there at point of sale.

 

 

The fault is do to do with the injectors and they say its a wear and tear issue. They also say their regulator would agree with their position - I don't agree.

 

 

I have argued that the Consumer Rights Act isn't concerned with mileage, it only states (or implies) that if a defect occurs within 6 months the selling party is responsible for repair or replacement. They've now had the vehicle since the 25th April and my in law has been without a vehicle to get to/from London each day. He is paying for the train (about £50 a day).

 

 

Is he within his rights to reject / terminate the agreement based on the above do you think?

 

 

How should we take this forward...dig our heals in reject the vehicle / cancel DD or just pay up? Its potentially £2K defect to fix properly - the van was only £7k in the first place.

[liverpoolluke]

shop around for the repair should you decide to fix the van, there's people online that offer a injector removal service these service's are mobile, the new injector's are costly but easy enough to do when the old one's are out, think given the milage driven 10k it would be very difficult to argue the fault was present at point of sale, given the average personal vehicle would cover aprox 1k miles a month at worst

[ShaneG2009]

Thanks for you're post. I genuinely didn't think the law recognised mileage as a factor, I thought it covered all faults that occurred in the first 6 months.

[liverpoolluke]

I am not a legal professional so please don't take my word as gospel, the majority of the laws out there are to protect consumers, the vehicle in question is a commercial vehicle, this is also backed up with business type useage (mileage)

 

I think it would be difficult to prove a large van is for personal use

 

As an example if someone purchased a vauxhall combo van for transporting a large dog that could be seen as a personal vehicle,doing a years worth of milage in 3 months I feel would be seen as a business vehicle (even if the vehicle in question was a car)

[ShaneG2009]

A quick update all

 

 

MotoNovo have now agreed to have the vehicle in question examined by a third party company to determine if the defect would have been reasonably apparent at the point of sale. They now agree (after many heated calls) that the burden of proof falls on them.

 

 

Injector failures on a diesel van with 75k miles must be quite rare so I am fairly confident the report will find in our favour (assuming they use an impartial / independent third party who is not geared up to simply give them the answer they want).

[liverpoolluke]

the nissan and vauxhall are notorious for injector failure (use the same engine) to the point it was also on watchdog a year or so ago, some people had some success with the main dealer, let's hope moto novo play nicely

[ShaneG2009]

I saw the watchdog article. Sadly Vauxhall were only covering up to 7 years old in 2014 so we didn't get there in time (or didn't own the vehicle either).

 

 

We shall see how things go with MotoNovo...the Team Leader I spoke to was well informed and sympathetic - let's see if this transpires into some form of agreement.

[ShaneG2009]

A quick update

 

 

MotoNovo have employed the services of a firm called 'Ace' to review the assumed defective vehicle. Today we've heard via text from the trader who the van came from that the defect did not exist at point of sale. We haven't seen the formal report and have asked for a copy.

 

 

We did previously notify MotoNovo that the Agreement was terminated because of assumed rights as below:-

 

 

© the consumer has required the trader to repair or replace the goods, but the trader is in breach of the requirement of section 23(2)(a) to do so within a reasonable time and without significant inconvenience to the consumer.

 

 

I don't know what the law would say is a reasonable time period, but 25th April to now seems unreasonable for a motor vehicle. Inconvenience wise the lack of a van or temporary replacement has meant my brother in law has had to travel to/from work via train or bus at a cost of circa £50 per day...his costs are well over £1,000 now so I'd say hes been inconvenienced beyond belief.

 

 

The trader and MotoNovo have been in possession of the vehicle since the 25th April. Should we stick to our guns in claiming agreement is terminated on the basis of the above...?

 

 

Could really do with the MODS help on this one because it appears to be getting quite serious...

[steampowered]

Hello, sorry to hear that this is still dragging on.

 

You can read the Consumer Rights Act here ... http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted. You are looking for section 19(14) to (15), which essentially says that goods which do not conform to the contract within the first six months following delivery to a consumer must be assumed to be non-conforming from the date of the delivery, unless the trader can prove otherwise.

 

I agree that you should ask for a copy of the report.

 

I agree that a delay of several months is not reasonable. The Act says that if the trader fails to repair/replace in a reasonable time, you can reject (this is section 24(5)). You can also claim costs arising as a result of the problem, i.e. the train fares (this is section 19(5).

 

If you believe the van was not satisfactory quality when sold, it sounds to me like you should be sticking to your guns. Your position might be that, if it is necessary to issue a small claim, you will be claiming for a refund of the cost of the van, plus additional travel costs incurred over the past few months ... in reality you might compromise by settling out of court for a bit less than that. It is worth trying to get a copy of the report before putting this forward though.

 

When these sort of disputes reach county court there is often a bit of an argument about whether the defect really meant the van was not satisfactory quality, because used cars are expected to have problems sometimes especially if it is a known problem with the particular model being sold ... but you can cross that bridge when you come to it.

[ShaneG2009]

Thanks SteamPowered

 

 

Last night we gave notice to MotoNovo as per the above that we had terminated the agreement based on their failure to offer a repair / replacement within a reasonable time period and without significant inconvenience. Lets see what their response to that is - I will keep you updated.

 

 

One thing of note the 'trader' who the van came from keeps pestering my brother in law for so called storage fees. To date we've told him we are not liable on the basis it isn't our problem the combination of him and MotoNovo have taken so long to look into the complaint / defect.

[steampowered]

One thing of note the 'trader' who the van came from keeps pestering my brother in law for so called storage fees. To date we've told him we are not liable on the basis it isn't our problem the combination of him and MotoNovo have taken so long to look into the complaint / defect.

I think that's right, storage fees are not your problem.

[ShaneG2009]

Hi all

 

 

A quick update...on the 6th June we exercised our final right to reject the vehicle on the basis the trader and/or motonovo had failed to offer a repair/replacement in a timely manner and without significant inconvenience. I am a member of Which! Legal Services and as part of that membership I have access to lawyer who can offer advise so I explained the full details of the issue, how we've approached things and that we'd exercised our termination rights. I asked which to offer their opinion on whether we'd gone about things correctly and legally and to my delight one of their consumer lawyers wrote back to me yesterday saying as far as he was concerned we'd ticked all the boxes and agreed that our approach was fine. He suggested taking a case to the ombudsman or Small Claims to recover the travel expenses involved since this all started - considering that now.

 

 

We've wrote to MotoNovo re-confirming our position and asking them how they'd prefer us to proceed with them getting the keys and other documentation back and we await a response (doubtful given their perceived lack of interest during the original complaint). The original trader has the vehicle in his garage so no organising vehicle return etc.

 

 

A few things I need clarity on though if someone wouldn't mind offering an opinion:-

 

 

1) My brother in law has personal belongings stored in the van and would like them back. How is best to approach this?

 

 

2) We've cancelled the direct debit...the next one isn't due until 8th July (he paid the one on 7th June despite the termination being in effect...mostly in the hope theyd be a final hour way forward but sadly not)

 

 

3) As the agreement is effectively terminated what should we expect back from MotoNovo to confirm this?

 

 

4) Can they contest the approach we've taken...statutory law is clear of our rights when they fail etc. so just not sure how this may go.

 

 

5) Early on in the process there was a threat if the DD was cancelled for them to log the data with the various CRA's. What can I do to prevent them taking this action in the coming days / weeks?

 

 

6) Is my brother in law entitled to refunds (partial because I know the law allows them to make a deduction for fair usage) against what he's paid to date for the vehicle? If so how should we go about getting this - I assume we take this to MotoNovo AND should we be including a sum of money for the travel expenditure as well?

 

 

I think that's it lol - could do with your opinions

 

 

Thanks

 

 

Shane

[AndyOrch]

Thread title amended and moved to Vehicle Finance and Vehicle Repossessions.

 

Andy