Sold a Motorbike Now Buyer Is Threatening to Take Me to VCAT

TIKS on 31/05/2015 - 18:10

Hi guys, I'll try to shorten this as much as possible….

I had a 2006 cr125 honda 2 stroke. It siezed like 2 strokes do sometimes so I had it rebuilt.

15 hours of riding later I decided to sell it so I could get a tamer motorbike as I'm getting on In age. Advertised as rebuilt top end 06 cr125 bla bla…

A family drove up to look at bike, loved it then the kid test rode it, it stopped running…. We checked and it had ran out of fuel. I put more fuel in. It it still wouldn't start, spark plug was always dry so we presumed blocked jet due to running out of fuel.

I gave the potential buyer 3 choices. 1: leave bike and go home and I'm sorry for the troubles. 2: leave bike and I will vet it repaired over next week or 2 and they can have first dibbs on it once fixed. Or 3: I had bike advertised at 3000 so I said they could take it as is for 2500.

They chose option 3 and I wrote a receipt stating "The current condition of the bike is not running after it ran out of fuel on a test ride".

They were happy and took it and that was it. A week later he has stated now the bike had in fact seized when it ran out of fuel and he wants me to pay him money. He gave me options of paying him 1300 as the bike vin translates to a 2004 model (I had no idea cause they use same parts etc for 06 and 04) so the 1300 is for his travel and payment to repair the bike.

Or

Buy the bike back off him for 2800 but I have to travel 200km to pick it up. The extra 300 is for his travel time.

If I don't take either option. He is taking me to vcat for a civil case.

Anyone know where I stand? His kid was riding it when it blew up? (Underage, not rwc or rego and on a sealed road) I had no idea it had blown up. But surely private sales have no warranties?

Thanks in advance to anyone who reads this.

Automotive

Comments

    • bluebat on 31/05/2015 - 23:17

      like it's time to counter the claim. & only agree to pay the $2800 to settle the matter. if he is willing to pay for rental of the bike while in his possession & the cost to pick up the bike again, & the legal fee to translate his message. which might come to say $3500 or more & any other fun fees like fuel tank re-fill fee, bike washing fee, mechanical inspection fee to confirm the bike is being returned in the original condition as it was handed over.

  • strangeloops66 on 31/05/2015 - 23:05
    +17

    Judge Judy would rip into this clown.

  • AMLagonda on 31/05/2015 - 23:58
    +4

    No warranty/guarantee on private sellers, you owe them a smile and a wave good bye :)

  • Captain Electrode on 01/06/2015 - 01:03

    I wouldn't fret too much, I seriously don't think they have any claim to go on, but I'd still double check with your state's trade practices people, just to be sure.
    The way I see it, the buyer is trying extort money from you, that you do not owe. Irregardless of whether you did or did not misrepresent the bike, any expenses they incurred with having the bike checked or worked on by a third party are not your responsibility. In commercial retail, that could actually void any warranty (Being a private seller, there are no warranties). Any travel time and expenses have been made entirely at their discretion and are of no responsibility to you. (Working in retail, I've had a couple of people try, and fail, with travel claims.) Also, they don't have the legal power to impose a time limit for their extortion.
    The buyer has obviously seen the term "inter alia" in a document or on the internet and decided to throw it in a bunch of times, to seem as if they have more knowledge than they do. inter alia does not need to be in quotations (Who's the other person they're quoting?) and, in parts, they have used the term in places where it makes no sense. (inter alia, essentially means "among other things" [law.com] )

  • suchislife12 on 01/06/2015 - 01:47
    +23

    Hi there,
    I'm currently a law student and can tell you (from my research) he has minimal to no chance of convincing a tribunal to rule in his favor. Firstly the use of 'inter alia' makes absolutely no sense in his letter. He can throw as many latin terms as he wants but nothing will override 'caveat emptor' when it comes to the private sale of a motor vehicle. It is his responsibility to make sure the bike is 'fit for purpose' when he purchases it privately because consumer law does not apply. However there may be an issue with the fact you did not list the correct model year…that is however a contract issue that a tribunal such as VCAT would not address. Don't reply to him and wait it out is what I would do. You should get legal advice from a fully qualified lawyer for peace of mind though.

  • currentfad on 01/06/2015 - 02:26
    -8

    Straight out of ACL:

    "Vehicles with pre-existing damage
    You have specific obligations when selling new vehicles
    with pre-existing damage – for example, hail damage
    that occurred while a car was displayed outdoors.
    If you are selling a damaged new car at a discounted
    price and you have informed a consumer of the reason
    for the discounted price, they cannot then claim that
    the identified damage is a failure to comply with a
    consumer guarantee. However, if you do not disclose
    the damage at the point of sale, there is a risk that
    the vehicle may later be found to be of unacceptable
    quality, especially if the damage is not evident or cannot
    be discovered through a reasonable examination of the
    vehicle before purchase.
    If you are selling a second-hand or damaged car that
    is still within an original warranty period, you should
    provide the consumer with information about the status
    of the manufacturer’s warranty, so they can be aware of
    any limits to the warranty before buying."

    You're in the clear.

    • Dumax on 01/06/2015 - 08:03
      +12

      ACL only applies to businesses, so is irrelevant in this case.

    • ShiKu on 02/06/2015 - 12:21

      Love those down votes even for saying the seller is in the clear.

      • ChickenTalon on 02/06/2015 - 12:38
        +4

        That's not the point. Quoting ACL (Australian Consumer Law) is totally irrelevant to the OPs problem, and unhelpful.

        Private sellers (not businesses) do not need to comply with ACL.

  • affable on 01/06/2015 - 07:56
    +14

    Have you considered this might all be a deliberate tactic from the buyer? Did you witness the bike stopping when being tested? If not, consider :
    Buyer wants a discount, and is a savvy mechanically. Says to son, ride the bike off, then switch off ignition while riding to make it sound like its run out of fuel (maybe tip out tank after stopping). Do XYZ to fuel line etc so bike won't start again but sabotage is not noticed or suspected and can easily be reversed. Negotiate discount and go away happy. He's got an easy discount from this unsuspecting seller and set up question marks over the condition of the bike, so why not push for more by claiming further problems?
    Hopefully this is not the case, however I know there are people out there who would make a career out of such "scamming".

  • pjcook on 01/06/2015 - 08:29
    +3

    refer to our conversation on Friday 29 May 2015, regarding the condition of the motor bike whereby we originally agreed to purchase the bike from you at a reduced cost in good faith "as the current condition of the bike is not running as it ran out of fuel on a test ride" ( Receipt 23/5/2015) whereby in fact the engine was seized and now requires a rebuild at a much more substantial cost.

    That line alone would seem to put you in the clear…… He states that he agreed to purchase at a reduced price as the bike is not running as it ran out of fule on a test ride. He has admitted it was running ("on a test ride") and after boing unable to start it he agreed to but at a reduced price…..

    • UFO on 01/06/2015 - 16:02
      +1

      THIS.

      Private purchasers of motor vehicles are not protected by consumer law… the onus is ENTIRELY with them to ensure due diligence is carried out.

      He has agreed to purchase the vehicle in its current condition, and even accepted a reduced price (and thanks to his SMS, this is acknowledged). You have absolutely no idea what he's done to the bike since purchase, and nor should you care.

      For him to have any claim at VCAT (and even then, this would be slim), he would have to prove deceit. And you haven't deceived.

      What gave you the impression this was a 2006 model and not a 2004?
      A receipt, a model number on the bike?
      What ever that fact is, is your evidence that no deceit occurred.

      Kindly reply to him and state that you refute any insinuation that you've deceived him in any way. You sold the bike to him in good faith "AS IS". He agreed, end of story.

      Dont worry about his trumped up 'legal costs' rubbish. VCAT will never award legal costs.

      One simple reply stating you've received legal consultation that refutes his claims, and that's it. Thanks for coming.

  • Typical16-bitEnjoyer on 01/06/2015 - 08:54
    +6

    "caveat emptor"

    End of story.

    Ignore him. If you receive posted notice of VCAT proceedings only then consult a lawyer.

  • secondstory on 01/06/2015 - 09:57
    +4

    His travel cost would have been all the same if he'd left without purchasing.

    It's also mentioned above on other comments but I wouldn't completely rule out sabotage of the bike during test ride.

  • WT on 01/06/2015 - 10:07

    advertising as an 06 and it being an 04 isn't great ethics. Sure buyer beware but if your not sure clearly state so

    • McFly on 01/06/2015 - 10:53
      +1

      "I had no idea" - it was an unknown unknown.

    • hts on 01/06/2015 - 10:53
      +2

      Could have purchased in as last years model in 06, when actually badged as 04 - I purchased my Triumph Street Triple R in Feb 2014, was the 2014 model but is registered as 2013, granted 2 years is a bit more a stretch but it's not like the OP said its a brand new bike and turns out it has 20 years difference!

      In all honestly, buyer beware stands IMO. I've looked at a lot of second hand vehicles that are labelled incorrectly, EG - MY06 VZ Commodore, actually MY04 as the model ran that long etc. Would they have not purchased the bike if it was advertised as 2004 instead of 2006? If they purchased it not running I doubt that would factor in to it. Seems to me they are trying to go back on a deal for what ever reason and you are at no obligation to do so. Hold fast and ignore them, their legal bills will outweigh the cost of the bike before too long if they go that way.

    • Speckled Jim on 01/06/2015 - 12:50
      +3

      MX bikes don't have an ADR plate, as they're not registerable.
      They do have a build plate, and that's usually on the head part of the frame. I forget the exact term, but if you turn the bars full left or right, it should be visible on the front-most bit of the frame.

      That should have the VIN and build date etc.

      Now as a buyer, that's one of the first things you should check!

    • Speckled Jim on 04/06/2015 - 11:59

      I just googled the 2000-on CRs. Bugger me if they don't look almost identical to the naked eye, esp the 04-05-06 models.

      Comes back to build plate and onus on buyer to check it's correct.

  • j4ck on 01/06/2015 - 10:40
    +1

    What a tool.

  • Scorpiogirl on 01/06/2015 - 10:56
    -2

    2nd that

  • Randxyz123 on 01/06/2015 - 11:30

    Did you put this on whirlpool as well? haha

  • TIKS on 01/06/2015 - 11:52
    +4

    Haha yeah 2 places on the net I go for answers….. Ozb and whirlpool.

    • ankor on 01/06/2015 - 23:25

      Didn't you state on Whirlpool that the servicing and all the other stuff refer to the vehicle as a 2006 model vehicle?

      On the vehicle invoice, and on later servicing invoices do they say something like:

      Honda cr 125 2 stroke MY06
      Build: Dec 2004
      Comp: Jan 2006

      That might be a reason why you think it is a 2006 year vehicle when the VIN and build date would show it is a 2004 vehicle..

      • Gravy on 02/06/2015 - 10:44

        A whole year between build and comliance? So do they sometimes hold the bikes in storage for a year or so in Japan and then compliance is obtained after importing into Australia?

        • ankor on 02/06/2015 - 16:39
          +1

          I've seen it once when an uncle was browsing a specialty vehicle. I doubt it would be a common occurrence.

        • Gravy on 03/06/2015 - 12:29

          @ankor:
          Gotta love people that downvote a legitimate comment without giving any explanation as to why. Unless someone thought it was something that happens regularly.

        • ankor on 03/06/2015 - 18:28

          @Gravy:

          lol, who knows, who cares.

          The reason why I ask is because on whirlpool, the OP has stated that he has a bunch of receipts that refer to the bike as a 2006 vehicle and that was why he was mistaken. So maybe it's a clerical error from the servicing centre, or it's a 2004 build complied as a 2006 dirt bike.

          Someone else has stated that these bikes don't have odometers on them. From where I am sitting, determining whether it was a 2004 or 2006 vehicle is quite significant to a prospective buyer because it represents another 2 years of wear and tear on the bike. It might be a good basis for VCAT rescinding the contract.

          That'd be my focus if I were the other party.

        • macrocephalic on 05/06/2015 - 10:01
          +2

          I believe that for registration purposes, the build date doesn't matter, only the year that it was complianced in Australia.

          Back when there was a huge trade importing 250cc motorcycles (cbr250rr, fzr250, zxr250, etc) from Japan this was a very common issue. Bikes were made in the late 80s through to the early 90s in Japan. Due to registration and licensing they became almost worthless in Japan and sat by the thousands in holding yards in Japan. About 10 years later it became a pretty profitable business to ship them to Australia, give them a buff and shine, and sell them to learners. These bikes were complianced in the early 2000's - so they could be advertised as such. Bikes that were made in 86 were being shipped to Australia and being sold as 2000 models.

        • macrocephalic on 05/06/2015 - 10:01
          +1

          @ankor: If the compliance plate says 2006 then that's what it is, it doesn't matter when it was built - only compliance matters.

        • Gravy on 05/06/2015 - 10:10

          @macrocephalic:

          Wow, that's some interesting info, thanks for that.

        • ankor on 05/06/2015 - 12:04
          +1

          @macrocephalic:

          Sweet. Having said all this, another later post notes no compliance plates are issued for the cr125s lol.

  • JimB on 01/06/2015 - 12:01
    +2

    Reply with two words "Caveat Emptor".

    Some people don't want to take responsibility for their own actions.

    • GaryQ on 01/06/2015 - 14:54
      +20

      Caveat "inter alia" Emptor

      It is important to be precis in these matters

  • jazzyman9182 on 01/06/2015 - 12:11

    Even if you did buy the bike back or had to pay to get it fixed, which you would anyway of you bought it back, why should you have to pay for their travel time? Its their fault for looking at a bike that's going to cost them $300 to get there and back. Like if they lived on your street you wouldnt have to pay for travel time, so why when they're that far away?

  • Speckled Jim on 01/06/2015 - 12:15
    -1

    Betting the "powerband" (lol) from this 125 tiddler got to him, so he backed off and coasted.
    There's your seizure right there.

    He got it home and f-cked it. End of.

  • xuqi on 01/06/2015 - 12:39
    +19
    • Visited and test drove the bike.
    • Privately purchased it knowing what had transpired, and the condition.
    • Drove back to his wherever he lives (200K+ away)
    • Held on to it for a few days
    • Now threatens to sue you +additional expenses(travel, time, etc.)

    None of this entitles him to his money back, not matter how much legalistic language he uses.

    I would only make 1 simple response stating your position (Keep it short, simple and to the point, in direct contrast to his legalise riddled BS). After that, I would NOT respond to his SMS's. Wait till he calls you and speak with him on the phone. That way he gets nothing more in writing. If he records your conversation without consent, then good luck to him relying/using it for anything.

    He wants to go to VCAT, so be it. Don't engage him in a conversation, or call him back, or SMS him back (initiate a response). Let it always be him that initiates the call / message(which you should not respond to). If he asks you to call him to provide whatever info, ask him to call you instead.

    Don't ever consider giving any money to him, or taking the bike bake. Why would you visit his place? Who knows what he's done to the bike / parts whilst he's has it in his possession. He may have swapped out parts to fix one he himself owns. It may have been used to commit an illegal act. The possibilities are endless.

    He may keep pestering you. He may even get his 'friend/s to call/threaten you (If this happens visit your local Police station and inform them, providing as much factual information as possible, keep emotions out of it).

    Stay calm and stay your ground.

    • UFO on 01/06/2015 - 16:05
      +2

      Perfect advice, well done.

    • ukmark on 01/06/2015 - 20:49
      +2

      Mmmmmmmmm, bike bake :p

  • AMLagonda on 01/06/2015 - 13:38
    +1

    Actually I was thinking that maybe you need to get the police involved if he starts threatening you, which is really his only option as it's his bike now, not yours :p

    But ^^ xuqi has it spot on.

  • newozbargainermelb on 01/06/2015 - 13:58

    From VCAT website http://www.vcat.vic.gov.au/adv/disputes/civil-disputes

    Disputes we can hear

    Disputes about goods

    VCAT can hear cases about goods, whether or not they were supplied in trade or commerce.

    For example, the tribunal may be able to hear your case if you:

    • sold goods, and claim payment from the buyer
    • bought goods, and claim they are defective
    • received the goods as a gift, and claim they are defective

    You can get some free legal help from a community legal centre close to you http://www.fclc.org.au/

    And please let ozbargain community know the outcome.

  • t_c on 01/06/2015 - 14:58

    where is the ozbargain lawyer when you need him?

  • m0tyrider on 01/06/2015 - 15:15
    +1

    2.5k for a 04 CR. Didn't think they were worth that much! Good job on the sale.

    None the less, private sale. Ignore him and move on.

  • garetz on 01/06/2015 - 16:27
    +1

    Ignore him, its a second hand vehicle, he should of had it mechanically checked before agreeing to buy it, you have no liability here. Buyer beware.

  • johnno07 on 01/06/2015 - 16:42
    +2

    No legal advice needed. Ignore this f***wit. If you're dumb enough to buy a vehicle that breaks while you're inspecting it, you deserve to lose a bunch of money.

  • dtbnguyen on 01/06/2015 - 18:50
    +21

    I've studied enough law to know that this is quite simply a bizarre way of initiating contact regarding this particular issue. Legalistic terms are generally interspersed throughtout because it is commonly assumed that both sides have common knowledge. My impression is that he's basically someone who's learnt enough law to be dangerous or else he's just a douche.

    The way he presents his case seems to be significantly biased and generally unfair. You need to build your credibility here if there is a chance it is going to head to VCAT or otherwise (settle prior to it). This will give you a better chance of achieving a better settlement.

    I draw your attention to the following statment, "I draw your immediate attention to "inter alia" your deceptive, false and misleading conduct by misrepresenting the motorbike in your advertisement posted on Gumtree as being "meticulously maintained with a recent top end rebuild" and that it is a "2006" model where in fact it is a "2004" model."

    The wonderful thing about modern business and taxation is that there is likely to be a receipt of your rebuild. This means that should you be able to provide said evidence much of the previous statement can be ruled null and void. The fact that there are minimal differences between 2004 and 2006 models and the fact that he actually had to consult the VIN number to correctly identify the year works in and out of favour for you. You can rightly claim lack of knowledge but you look slightly negligent (possibly 'scammy' but not really) which can possibly mean that the contract between you two can be held null and void (you must return his money).

    He said that, ""Inter alia"it is a breach of Gumtree's users terms and conditions and Victorian Consumer Law, "Inter alia" these breaches carry heavy and significant penalties and sanctions." It's clear that he's trying to establish/build a case whereby you are seen as being deliberately misleading. As stated previously, your best course of action is to build up a chain of evidence in contravention of this. Hard evidence always trumps eyewitness testimony. Remember that. If you can provide evidence that you gave him those options, that you had the engine rebuilt prior to sale (Remember also that records of kilometres run are often kept during servicing of vehicles. You can probably use this to establish the fact that it was at least running prior to sale.), etc…
    https://help.gumtree.com.au/knowledgebase.php?article=120

    In law, it's often a game of intimidation prior to the real deal. The claimant will often seek more than he is due. You should be trying to whittle this down so that you can have the case judged in your favour or at least have the compensation reduced if it ever reaches that point.

    You need to re-frame the case in a way that paints you as a fair (or fairer) party (If you can't then you're a douche or you aren't the fair party.).

    As stated by others you are not a business and it is clear he was provided with ample opportunity to be able to assess the circumstances. However, what's also clear is that there are provisions within existing law for private sales (if I'm reading it correctly)
    http://www.consumer.vic.gov.au/contact-us/resolve-a-dispute
    http://www.consumer.vic.gov.au/shopping/online-shopping/buyi…
    though they may be limited for vehicles
    http://www.consumer.vic.gov.au/motor-cars/buying-a-used-car/…
    http://www.consumer.vic.gov.au/motor-cars/buying-a-used-car/…
    http://www.consumerlaw.gov.au/content/acl_resources/download…

    Another problem with your case is the following statement, "The current condition of the bike is not running after it ran out of fuel on a test ride". It implies that it ran out of fuel and therefore that was the cause of the problem.

    There are a number of possibilities here:
    - it's a shakedown and he's trying to scam you. There are two styles of scammers that I've generally come across though. One is the professional scammer who hides his tracks, and the other is more blatant. If he is a scammer then he is likely to be somewhere in between
    - he believes you have wronged him deliberately and he is trying to make a legitimate claim. He knows his rights but based on what I'm seeing he's trying to seek recompense for both the problem but also have some glory and save some pride by possibly gaining more compensation then he is entitled to.

    My impression is that he thought he may have had a good deal and that was the reason why he came out so far. His pride and wallet were wounded when he found it the deal was not to be. Moreover, you look sus because you already compensated them once (quite significantly might I add) by reducing the price which could possibly mean you were simply trying to get rid of it and you were aware of the problem which adds further credence to their case and thought process.

    Based on the way you've written about the case my summation is that it just seems like you both screwed things up. You compounded it by making a significant assumption as to the cause of the problem. The fact that he was provided with knowledge of a possibly serious problem (and the fact that you offered to fix it prior) means the case can possibly be ruled in your favour. However, it is also clear he wants to have a working bike (most people tend to list what they want first). My suspicion is that if this were to go to VCAT there is a small/some chance that it could be ruled in his favour.

    The fact that you're asking here tells me you have limited resources. To save you some money and clarify the ecnlosed claim ("You are hereby put on notice that in the event that proceedings are instigated, further claims for all legal costs "inter alia" will be claimed."), please note the following, "Small Claims in VCAT are designed for consumers to represent themselves; filing fees are usually waived for low-income earners; generally, for claims of $10,000 or less, the legal costs cannot be awarded against the losing party." http://consumeraction.org.au/taking-your-dispute-to-vcat/

    Overall:
    - you can argue you both knew about the problem and that he can get stuffed. The problem is that it's not the problem you tought it was which leaves your case in quandry.
    - you can also decide to compensate him with a lesser amount. For instance, seek quotes from alternate mechanics to see whether you can reduce the compensation costs. Also, look at depreciation numbers to see whether his numbers check out. Remember the legal system is there to help you deal with these problems in a fair and just manner.
    http://www.gumtree.com.au/s-motorcycles/cr125+for+sale/k0c18…
    http://www.bikesales.com.au/used/off-road/motocross/honda/cr…
    http://www.ebay.com.au/bhp/honda-cr-125
    - if you decide to refund him, you can probably argue with good conscience that he doesn't deserve to be compensated for transportation costs. Think about the nature of consumer warranties and guarantees. Most of the time when you have a problem you seek remedy/ies by referring to the original retailer or manufacturer in question. Is the retailer or manufacturer charged for transportation and other associated costs? A lot of the time no… Imagine if I drove from Melbourne up to Sydney to buy a computer and asked for reimbursement for travel costs? My guess is that he had the option to seek purchase of said item (or similar) from elsewhere in what would have likely have been far better proximity.
    http://worldwide.bose.com/axa/en_au/web/warranty_information…
    https://www.accc.gov.au/system/files/Warranties%20and%20refu…

    Your choice what you want to do. My advice is that you explain the circumstances and communicate at least a little prior to ignoring him. This will provide a chain of evidence (Please note that there are laws (with severe penalties) covering private surveillance so try to keep things 'clean'. Example, SMS messages, emails, letters, are relatively 'clean' forms of evidence while a recorded conversation is not.) indicating that you at least attempted to operate in good faith and were seeking to remedy the situation. Should it go to VCAT it will also present you in a better light than had you simply have ignored him.

    As stated previously though, I suspect that he's mostly a douche bag. If he comes to his senses he'll realise that there are at least minor issues with his case and thought process/s.

    If he continues to persist with this line of communication but ultimately does not want to settle or take it to VCAT, it will provide confirmation that this is mostly about being a shakedown so the following is an option. If you feel that there is a safety risk (nudge, nudge, wink, wink…) … intervention order.
    http://en.wikipedia.org/wiki/Stalking

    If you were to continue to communicate with him I'd be inclined to direct him to look at some of the following links.
    http://www.vcat.vic.gov.au/about-vcat/how-vcat-resolves-case…
    http://www.vcat.vic.gov.au/adv/disputes/civil-disputes/appli…
    http://consumeraction.org.au/taking-your-dispute-to-vcat/
    http://en.wikipedia.org/wiki/Victorian_Civil_and_Administrat…
    http://www.vcat.vic.gov.au/adv/disputes/civil-disputes/appli…
    http://consumeraction.org.au/taking-your-dispute-to-vcat/
    http://www.vcat.vic.gov.au/resources/document/vcat-fees-effe…

    I'd also be inclined to tell him the following. Inter alia, Whoppers reddit gustus melior quam magnus macs. (Use https://translate.google.com.au/ to translate from Latin to English.) I feel that it adequately reflects the silliness of his usage of the terms.

    • Speckled Jim on 01/06/2015 - 19:05

      records of kilometres run are often kept during servicing of vehicles. You can probably use this to establish the fact that it was at least running prior to sale

      Not nit-picking, as it's generally good advice.

      However, as the owners manual should state, the vehicle is "for competition use only", "Not to be used on public roads" etc.

      As such, it's not ADR approved for road use — impossible to register — and manufacturers don't fit odometers to these types of bikes. Their service life is expressed as "hours run", or (race) "meetings done".

      Source: I used to race MX in the 80s.

    • TIKS on 01/06/2015 - 19:27

      What a cracker of a response! Thanks for all that info.

      • bobwokeup on 01/06/2015 - 22:22
        +4

        Make sure you keep us posted on the outcome, I want to know how this tool finds out he is dreaming!!!

        The more I think about it, the more I'm convinced you did the right thing and it was his responsibility to get the bike checked by a mechanic, he to put it bluntly it's his problem.

    • Qroozn on 01/06/2015 - 21:03

      Doh. That's exactly what I was gonna say. Beat me to it!

  • Seiko on 01/06/2015 - 19:30

    The engine was cranking when you sold the bike and after keeping it for a week the engine is now seized?

    If you want your conscience to be clear than refund him the difference between an 2004 to 2006. Otherwise tell him to notch it up to bad f@cking luck.

  • TIKS on 01/06/2015 - 19:38

    Hurt my back yesterday, got progressively worse today so I didn't get to see a lawyer, will see how I go tomorrow. In any case I am thinking of waiting until at least Thursday, then decide how I feel about my next move..

    1: Do nothing and see what happens.
    2: Offer for him to put the bike back together as he purchased it, return it to me and I will get it repaired (quoted 300-400) then he can pay me the extra 500 I initially took off the price. This will be on the stipulation that it may take 28 days for my "mechanical engineer" to assess the bike, another 10 working days for parts to be sourced, then another 28 days for actual repair of the bike. So a total of 66 days turn-around. The cylinder repair person actually has a 6-10 week turnaround at the moment. Then upon him picking the bike up he will be expected to provide somebody to test the bike is satisfactory as ,quite obviously, he does not have the mechanical knowledge to judge an engines state.
    3: Head to VCAT, go directly to VCAT, do not pass go, do not collect 200!
    4: As stated above - I can refund him 300 as that is the price difference between the 2 years on redbook bike valuations - although I'm not super keen on this idea as its giving him money. Maybe I could offer to pay the 300 at 10 per week for 30 weeks, to avoid financial hardship on myself.

    • UFO on 01/06/2015 - 20:43
      +8

      Definitely not 2 or 4…. are you crazy?

      • TIKS on 01/06/2015 - 20:45

        yeah very true. lol

        • DrStinge on 02/06/2015 - 08:08
          +13

          I would remove them from your post in the instance he found this.

    • Logical on 04/06/2015 - 12:43
      +2

      looks like you got more than a sore back.. your brain must have seized too ;-) Option 1, and option 1 only!

  • OpayuOnam on 01/06/2015 - 20:29

    Looks like someone has been watching suits back to back (judging by the funnily written 'legal' response from the buyer). Ehem ehem

  • birnie on 01/06/2015 - 20:41

    If an engine's seized, doesn't that mean it will not move?
    So if you ran out of petrol, added petrol, and attempted to kick it over, it was cranking just not firing right?
    ….not seized when purchased ??

    • TIKS on 01/06/2015 - 20:43

      they can "soft sieze" where it siezes but pretty much immediately lets go. still has some compression etc.

  • TIKS on 01/06/2015 - 20:42
    +3

    A good friend who is studying consumer law and contracts just stated that the gumtree advertisement (where it stated 06 instead of 04 accidentally) was made null and void when we negotiated a new contract for the sale of the bike. Therefore the gumtree ad is irrelevant along with all things relating to that.

    The low down is the new sale was made on a condition not running basis contract. The receipt is the new contract, and that does not mention what year the bike is.

    • skyva on 02/06/2015 - 10:06
      +4

      Not sure about that. I think you are ok with it not running for whatever reason, as it seems it wasn't running at time of the sale.
      However, there may be a claim if it can be shown that you misdescribed the item. The fact that it didn't state the year on the contract may not be relevant if it is the same bike you advertised as a 2006 model. I gather you are not going to try to argue that when they arrived after a 200km drive you then disclosed it was a 2004 model. Contracts can be both written and verbal. It may well be argued that the actual contract for sale was you describing the bike verbally, consistent with the ad, offering it for a price, and the buyer accepting, shaking your hand and giving you the money. The piece of paper later may merely have reflected the transaction and may not be the contract at all.

      The buyer would need to show that he would not have bought a 04 model, and was only interested in a 2006 model. That could be due to major upgrade/improvements in models. Not sure on whether it is relevant that you knew what year it was.

      Was there no compliance plate that could be seen by you or purchaser?

      As the bike was broken before and still is now, and misdescribed, the simplest resolution would be for the buyer to drop it back and you give him a refund, but that puts you both, theoretically at least, in the same position you were before the sale.

      At the end of the day the simple fact is you made a mistake in the description of the bike. If this is considered a major breach of the contract then the purchaser may have recourse.

      EDIT: a quick check suggests the 2004 engine is a different design and inferior to the 05-07 engine, so the buyer may have some recourse here in my view. Again I would be asking why the compliance plate wasn't checked by either of you.

  • Qroozn on 01/06/2015 - 21:06

    Offer to buy it back. How much can a seized 2004 be worth?
    Offer him $300 for the bike and your time and petrol to come and take it off him.

  • ukmark on 01/06/2015 - 21:06
    +7

    That is a pretty funny sms. No lawyer, when writing to a layperson, would write in lawyer's latin. Lawyers when representing to court or other lawyers then go all latin schmatin, but it makes no sense to do it to members of the public.

    This guy has read one latin phrase sometimes used in legal proceedings and used it like a breath pause. Trying to intimidate you into thinking - I's got's no's chance against this awesome legal eagle. All it did was make him look stupid and weak.

    He knows he has no case, and he f'ed up at best - or is scamming you at worst.

    Ignore the fool, just don't reply at all. If it ever does go to VCAT, show up and you will win.

    Now, I am off to Harvey Norman to ask for travel expenses for that TV I decided not to buy cos it looked small in the shop. (totally their fault for putting it next to the 952" tvs) I wonder if I should ask for travel expenses for my trip to ask for travel expenses?!?

  • Baysew on 01/06/2015 - 23:14
    +2

    It's interesting to read this post from a buyers perspective

    Car Engine Has Blown off

    • TIKS on 01/06/2015 - 23:32

      good read. not super similar due to the fact we both agreed my bike obtained an issue, and adjusted price accordingly. Good find though.

      • McFly on 03/06/2015 - 20:06

        Don't be silly - you should know bikes don't have bonuts!

    • 01011010 on 02/06/2015 - 09:11
      +5

      you don't read much do you.

  • altomic on 02/06/2015 - 07:24

    Sounds like you need to call in some bikies.

  • [Deactivated] on 02/06/2015 - 08:11
    +4

    Bloody hell, just ignore this fool and get on with your life. Provided you have receipts for the rebuild and have been truthful in your story you have nothing to worry about…

  • willy000 on 02/06/2015 - 09:40

    They were happy and took it and that was it. A week later he has stated now the bike had in fact seized when it ran out of fuel and he wants me to pay him money.

    Before he took the bike from you it ran out of fuel but was the kickstarter was still going down?
    If it was bike was not seized at that time.

    I refer to our conversation on Friday 29 May 2015, regarding the condition of the motor bike whereby we originally agreed to purchase the bike from you at a reduced cost in good faith "as the current condition of the bike is not running as it ran out of fuel on a test ride" ( Receipt 23/5/2015) whereby in fact the engine was seized and now requires a rebuild at a much more substantial cost.

    If he has had the bike for a week he could not be mixing the fuel and oil correct and that will cause the bike to seize.
    As I said above if the kickstarter was still going down before he took the bike it was not seized when it left your place.

  • minniethemoocher on 02/06/2015 - 10:19

    I'm pretty sure VCAT doesn't cover a transaction such as this.

    From their website regarding civil disputes:

    Whether a transaction was ‘in trade or commerce’ can be important in establishing which laws apply and whether VCAT can hear the case.

    In simple terms, businesses act in trade or commerce but private citizens do not. For example, if you buy a car from:

    a car dealer, the dealer acts in trade or commerce
    an individual in a private sale, the seller does not act in trade or commerce

    So my understanding is VCAT is only for businesses in civil disputes and given you are a private individual he couldn't pursue this avenue even if he wanted. I'm happy to be corrected though.

    • ChickenTalon on 02/06/2015 - 12:28

      VCAT can still hear, but yes different laws do apply. i.e. Consumer Law (ACL) wouldn't apply but civil arguments around misrepresentations or breach of contract would apply.

      key part would be the "establishing which laws apply"

      Whether a transaction was ‘in trade or commerce’ can be important in establishing which laws apply and whether VCAT can hear the case.

    • dtbnguyen on 02/06/2015 - 13:28
      +2

      See my previous reply. VCAT can hear the case.

      The thing I've been trying to establish whether the two parties in question are basically playing by the rules and within the spirit of fair trade though (more on this later).

      A good lawyer can re-frame the issues in question in a number of different ways (indicating a solid knowledge of the law). This gives him multiple ways in which to win his case, reduce/increase compensation, etc…

      The following are clearly possible when/if the case heads before VCAT:
      - defendant looks scammy. Since there are a number of (deliberate of nor) mis-representations in the original contract (outlined throughout this thread) it can be rescinded with a refund and possible other damages being awarded. That's why I'm trying to have you use as much hard evidence as possible to counter any eyewitness testimony, affadavits, or other evidence that they may bring into play (If you had of written, "Sold as is" on the receipt things would have been different and you could basically say within good reason for him to go to hell.)
      - defendant looks dopey but not scammy. VCAT orders rescission of contract and maybe damages (but unlikely) or more likely reparations. Once again, That's why I'm trying to have you use as much hard evidence as possible to counter any eyewitness testimony, affadavits, or other evidence that they may bring into play
      http://en.wikipedia.org/wiki/Mea_culpa
      - claimant looks dopey and took the risk knowing full well of the potential problem. For me, there's not enough info here to make this a slam dunk which is why I've been trying to minimise the risks of an unfavourable ruling
      - claimant looks scammy. You will establish this at the hearing. If they lie in the hearing you may/will be shell shocked. If there is to be a hearing, you need to go in prepared with a chain of evidence establising that you were sincere, that your testimony is credible, etc… If not, they win case and possibly damages. We need to guard against this possibility.

      It should be clear to you that I'm trying to re-frame the case so that they both end up looking dopey but operating within the spirit of the transaction (that's most likely what happened and what you seem to want anyhow). VCAT will end up ordering reperations (repair of bike) and refund for the difference in price between 2004 and 2006 model.

      The funny thing for me is that when lay people use the law they often make very strange assumptions. You should prepare for the worst, expect anything. This way you will be more likely to achieve a favourable ruling if it ever comes down to it.

      Others have already covered, legal aide for local income earners.

      If you're interested/curious see the following for other options.
      http://www.liv.asn.au/For-the-Community/Find-a-Lawyer-Direct…

      Outline the case and ask for help at the following email address and they may give you a discount on a suitable lawyers in the relevant area/s of law in question (there may be a delay in response and it's been a while so I'm not 100% sure whether this service is still running).
      referrals(at)liv.asn.au

  • lint on 02/06/2015 - 14:01

    Assuming everything is as your version of events, sounds like the buyer:

    1. Is an arsehat
    2. Has a very weak case on why VCAT should rule in his favour.

    Not only did you fully explain the condition of the bike, you gave him several options on whether to proceed with the sale.

    He chose to proceed to purchase the bike as-is at a significant discount to the original sale price, with the the fault fully noted on the receipt. The reasonable expectation is that the buyer bears responsibility on any repairs to get it running again at his own cost.

    At the very worst, in the unlikely circumstance that VCAT somehow rules slightly in his favour, they will ask him to return the bike to you for a refund, they won't ask you to pay for his travel costs.

    It's very important to have as much documentation as possible should it be brought before VCAT. Sometimes, these people will make things up to turn things on their favour (ie lie), so also try to anticipate what sort of things they'll say and have evidence ready to prove them wrong.

  • ozBFM on 02/06/2015 - 15:39

    Call his bluff and go to VCAT. In no way will you be worse off than the options he gave you.

  • t_c on 02/06/2015 - 16:52

    Looking at it from a different perspective, the bike was running, the kid rode it and it stopped during his ride whilst in his possession.

    could it be argued that the kid damaged the bike on his test ride.

    and in the event that you had to refund the bike, could the kid be liable for the damage that he caused to the bike during the test ride.

  • DEvok on 02/06/2015 - 17:03

    Just ignore him and you will be fine, if his threatening you don't give him, they usually try to push you around until you give up.

  • Keeponcalling on 02/06/2015 - 17:14

    Stuff him, gumtree is buyer beware .Ain't got a leg to stand on .

  • TIKS on 02/06/2015 - 18:34
    +4

    Got a meeting with my lawyer Thursday arvo. Should be good. All legal advice I received today is pointing towards him having a very soft case but also stating I should respond with something so if it goes to VCAT it looks like I tried.

    • dtbnguyen on 02/06/2015 - 18:54
      -1

      I just realised that there has been a flaw with my thinking. I've been assuming that this guy has been truthful… If he's not then you have a decent chance of saying stuff him if you've kept all the requisite evidence.

      For your information, these style of people I've dealt with in the past. The key here is not letting them control the situation. You need to force him into positions where he is unfamiliar.

      Options include:
      - telling him you'll be taking the matter to VCAT if he doesn't. Inform him of some of the evidence on your side and legal precedent. You'll get him out of your hair one way or another
      - waiting it out and not responding
      - the legal system generally wants people to be able to deal with matters themselves prior to seeking hearings from a third party. If he continues to badgers you without actually sincerely seeking to deal with the problem inform him that you'll be seeking to pursue the following (Legally, the following is unlikely but you get what I mean. He has his fun, we'll have ours…).

      Firstly, vexatious litigation;
      http://en.wikipedia.org/wiki/Vexatious_litigation
      http://en.wikipedia.org/wiki/Frivolous_litigation
      Second, damages (time/money in order to deal with the problem, lost earnings (time needed to be taken off work to deal with the problem since VCAT only has limited working hours), emotional distress (perhaps you'll need to seek the aide of a bulk-billed psychologist/psychiatrist in future? perhaps you're having flashbacks or anxiety about this because of your distress over previous lawsuits amongst family/friends?), transportation (you guys could have dealt with this like two adults but instead you had to bring in VCAT), costs of associated with communicating with him, does that bike seem to be modified when he returned it to you for repair/refund? etc…);
      https://www.vcat.vic.gov.au/contact-us
      http://en.wikipedia.org/wiki/Emotional_distress
      http://en.wikipedia.org/wiki/Damages
      Third, intervention order (as mentioned previously)
      http://en.wikipedia.org/wiki/Stalking
      Fourth, make allusions to the fact that you consider him to be a callous father who let his son ride a bike while underage and that you may report this matter to the relevant authorities (Facebook picture)
      http://forums.whirlpool.net.au/archive/2412485
      Fifth, you'll be writing a signed affadavit/stat dec stating that he had 'bluffed' his way out his way out of accepting penalties for illegal activities where he was previously aware that he had broken the law and that this may be reported to the authorities (once again)
      http://www.ag.gov.au/publications/pages/statutorydeclaration…
      http://www.justice.vic.gov.au/home/justice+system/legal+assi…
      http://en.wikipedia.org/wiki/Affidavit
      http://en.wikipedia.org/wiki/Perjury
      http://en.wikipedia.org/wiki/Perverting_the_course_of_justic…
      http://forums.whirlpool.net.au/archive/2412485

      We could go on for ages especially if we had more background on him. You get the idea…

      Be careful not to step into dodgy sounding areas. Keep everything above board.
      http://en.wikipedia.org/wiki/Extortion

      • skyva on 03/06/2015 - 10:05

        My view on your post:
        1. Nope
        2. Life is to short
        3. its only a few thousand, not millions
        4. Don't write anything the other side can use against you. Most likely it will go away.
        5. See point 1.

        • dtbnguyen on 03/06/2015 - 10:46

          Did you even read the post properly? I only outlined possibilities? The aim is to deal with the problem as quickly as possible.

          I'm just providing options.

          If you've ever dealt with scammy type people consistently you'll realise that there is a chance that they might not go away very easily and that you have to come up with a way of dealing with them.

          For me, that was not doing what they wanted whether ignoring, changing tack, or fighting back. They perceive your compliance with their terms with joviality, condescension, and a sign of weakness. The key is getting them to back off without necessarily escalating the problem. The path forward is entirely based on the original poster's perception of what the claimant's personality is like.

        • dtbnguyen on 03/06/2015 - 12:41

          @dtbnguyen:

          I've forgotten about one thing. His perception. Assume that you respond with 'Bad Luck' or just ignore him. If he already believes that he has been wronged he will have stronger reason to believe that he has been scammed. If he's a scammer then he has a stronger case for him as well.

          Another way you can attack is by responding with all of the points that have been outlined in this thread, with receipts indicating that it was working and serviced recently, limited legal protection for private sales, costs/time of pursuing legal advice and other associated actions at VCAT, etc… It will mean that you will confidently be able to say that you had strong reason to believe that it was simply a case of 'bad luck' should it ever front VCAT. The point is to make him believe that you'll to win the case or make him believe that he has a very limited chance even before heading to VCAT.

          http://www.artslaw.com.au/info-sheets/info-sheet/debt-recove…
          http://www.liv.asn.au/Practice-Resources/Law-Institute-Journ…
          http://en.wikipedia.org/wiki/Caveat_emptor

    • Mad Max on 03/06/2015 - 15:54
      +1

      I cannot believe you are going to waste money to speak with a lawyer (and they are not cheap) for such a silly claim. And even before getting served with a Vcat request.
      It sounds like bandaging your head before it is broken…

      • TIKS on 03/06/2015 - 17:33
        +4

        I get 30 minutes free so may as well utilise it?

        • Mad Max on 03/06/2015 - 21:18
          +2

          True ozbargain spirit!
          Although I don't think a lawyer is going to give you a satisfactory response in the 30 free minutes. They normally do the freeby to get you in.
          Nothing to lose though…

  • Steptoe on 02/06/2015 - 18:53
    +1

    If he'd bought from a Licensed Dealer it'd have no warranty anyway, so good luck to him.

    You should counter-claim for the $500 value lost due to the damage his son inflicted on your "pride and joy" ;)

  • KingArchibald on 02/06/2015 - 21:05

    Just to note that these motorcycles when sold as new do not have warranty.

    To also note these bikes come with a new piston when purchasing the bike and you are expected to replace the piston and rings every 10 hours depending on use.

    IF you buy a 2 stroke or motocross 4 stroke engine dirt bike, you buy it knowing you will have to replace the top end in small hourly intervals depending on use ie race / bush riding.

    Don't even show up to vcat if it's anything like small claims tribunal in NSW you can just not show up and it is a waste of everyone's time. Was told that by my fav solicitor.

    • strangeloops66 on 03/06/2015 - 11:56
      -1

      Was told that by my fav solicitor.

      How many solicitors do you have? What work do you give your least favourite solicitor?

      • KingArchibald on 04/06/2015 - 10:32
        +1

        I work in IT and I know around 5 or 6 Law firms so always pick their brains as they do mine.

    • McFly on 03/06/2015 - 20:10
      +2

      Everything (sold by a business to a consumer) has a warranty.

      • KingArchibald on 04/06/2015 - 10:36

        You would think that, however in the past atleast the race bred Honda's such as the cr125 he is talking about when purchased new you sign off that you DO NOT have warranty. I just rang and confirmed with the local dealer that the motocross race models DO NOT have a warranty and you sign a form to prove this. The trail bikes non race specific only get 3 months.

        • salem on 04/06/2015 - 10:48
          +3

          Unfortunately for Honda, but fortunately for the consumer, you can't sign away your statutory rights under Australian Consumer Law. So Honda would obviously reject any warranty claims and cite the form you signed as a reason, but that doesn't mean they're actually allowed to under the law. In fact, requiring customers to sign such a thing might get them in trouble with the ACCC.

        • KingArchibald on 04/06/2015 - 10:53

          @salem:

          Well google it and call Honda yourself, many people on forums spewing about new bikes with issues.
          These bikes come with a brand new piston and rings with no warranty.
          It's crap I know and I would never buy one, but you buy them knowing they have very short service intervals.
          It has been like this for years!

        • KingArchibald on 04/06/2015 - 10:59

          @salem:

          Googled it for you.

          http://hondampe.com.au/repository/owning_a_honda/product-war…

          No Warranty!

        • ChickenTalon on 04/06/2015 - 11:02
          +2

          @MickyH85: you googled Honda, not Australian consumer law

          @salem:

          Unfortunately for Honda, but fortunately for the consumer, you can't sign away your statutory rights under Australian Consumer Law.

          Salem is correct.

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