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Having a battle with Holden due lifters

Skylarking

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@panhead, yes keeping your records is vitally important and I've not disputed that. In this instance, had Elwood had documentation of the service, it would have made the world of difference in this case and he could have even pushed for a new engine to fix the cam/lifter and piston slap issues... Should be a lesson to all to keep all records and be diligent with service ;)

@spec3, the thread links in post #8 cover lots of ACL issues, especially loss of power steering, then in post #85 i stated

Still think a small claims at minimal cost is a potential option... but it‘s always prudent to discuss with office of fair trading for some proper advice.

Though i didn't go into details about costs being awarded, Fair Trading would and should have discussed such when going over Elwoods arguments and case.

Now being specific to your location spec3, VCAT tribunal cost vary. Application fee depends on amount claimed. It's $67 up to a $3k claim, $217 up to a $15k claim, and the amount rises as you claim more. Other costs in <$15k product & service claims aren't levied. Also, parties are expected to bear their own costs.

Costs can be awarded by the judge during the case if the loosing party behaves egregiously. In other cases the situations the wining party can try their luck and apply for costs to be awarded for a hearing fee of $373 fee. As long as one behaves in good faith, honestly, and not maliciously, then costs are not awards. Hence the importance of not misrepresenting things and not lying (that's when it can bite you). And as always, get some advice from a consumer group on the merit of your arguments never hurt (and can be helpful in avoiding costs).

So if Elwood doesn't take the matter further, it's no skin off my nose, but fixing his engine is not as simple as as a cam job on a perfectly good engine. I'd think prudence would require that the engine still should be stripped, examined and all parts checked for damage. Basically because we can't know how much crud/metal has been wiped from the cam lobe and lifters and circulated within the engine via the oil system. I'd hate to hear of Elwood installing a new cam and lifters only to have crud that was sitting in the bearings come back and bite him aftyer all that costs... If there is crud circulating the oil system, stripping the engine down for inspection is the olnly safe way forward. As such, a mechanics report and him attending the tribunal wont break the bank in comparison to the ebuild costs...
 

stooge

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a mechanics report and him attending the tribunal wont break the bank in comparison to the ebuild costs...
The problem is that you are basing all of that on the fact that he will win which is very VERY slim.

The costs of the mechnical report, losing the tribunal case, lawyer costs and the rebuild costs will break the bank more than just the rebuild cost

The first things that are going to come up in the case will be...

Did the consumer maintain the vehicle properly?
No

Could the fault be directly related to the failed maintenance?
Yes

Is there any proof that the engine was faulty before the poor maintenance?
Our records indicate at the time of the last service the vehicle was running fine.

Did the failure happen before or after the missed service?
After

How long after?
Almost double the specified maintenance schedule.

Do believe this failure would have been avoided if the vehicle was properly maintained?
Yes

They then ask the consumer...

Why did you fail to maintain the vehicle?
I did but i do not have any proof

Why do you think that the failure is not related to the poor maintenance?
Because i read on some forums about a few other vehicles having the same problems.

Your vehicle is not those vehicles but do you have any evidence to show your vehicle had a fault prior to the missed service?
No

Why do you think this is the dealers/manufacturers responsibility?
Some dude on a forum said acl will cover me so i figured i would try.

...
...
...


I would love to know the outcome of this.
 
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vc commodore

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Yeah, wouldn’t surprise me that they don’t document things very well. But my opinion is they should document all the issues they found when servicing the car, since one pays top rates at a dealer.
Yes, life would have been so much easier if Elwoods service book was stamped or if he had a receipt for the service itself.
Being “shonky” in court is never good...

Indisputable proof, like service receipt, obviously goes a long way to counter a dealer or manufacturers claim of owner abuse under ACL. However, the believability of the whiteness in verbal testimony can and does carry weight... After all the dealer or manufacturer can’t state with certainty that the owner didn’t have the oil changed by a 3rd part at the 30k interval, only that they have no record of it and the owner can’t provide it. So it comes down to who is more believable to the judge and who the judge catches telling lies or misrepresenting something, if anyone. If both parties are believable, it’s hard for the judge as proving a negative is difficult.

After all civil courts ain’t at a level of “beyond reasonable doubt“ but rather at the lower bar of “balance of probabilities“ which allows a judge to place more weight on verbal testimony..

It an uphill battle, always, but it’s not a forgone conclusion that one would loose. I think such a case could hinge on expert testimony but even that isn’t certainty... I think much depends on the judges bias (and the are biased)... but at $100 for a small claims case (ignoring expert testimony costs) and a day off work, I’d definitely present something to a tribunal since $3k or more seems at play.

And if @Elwood can get a reprint of a 30k 3rd party service receipt (or a stat dec or better still have the mechanic at court), then the argument that the lack of oil change being the cause would fly out the window.

Still, I’m curious if any member has even has some dealer write a comment about poor oil quality when they did a service (though I expect the answer to be no one has)...

With all the valuable documentation that is required to even think about launching any sort of claim missing and/or late, honestly, the OP would end up worse off financially trying to get Holden to pay for the issues.

The lack of oil change issue still remains, even with the private mechanics one....It has been said, he was 7 or 8 thousand over after the private mechanics service. Still can and will be used against him, trying to make the claim and probably fall in Holdens favour.

Judges look at all evidence and lean towards documented evidence, more than verbal....Sorry, but all documented evidence falls into Holdens favour, whether we like it or not....
 

Skylarking

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@stooge, loosing the tribunal case will only cost the application fee of $217 for a claim up to $15k plus whatever one paid their expert whiteness to attend as costs are normally not awarded in small claims.

Maybe you’d have to pay around $1000 (or there about) for expert whiteness to attend, so let’s say $1500 all up. A proper rebuild to address cam, lifters and piston slap won’t be cheap.. doubt it’d be $3k. If bearing surfaces are scratched by the bits flowing with the oil, then I’d think a full rebuild would be needed.... won’t definitely won’t be cheap... An engine strip down is needed just to assess what should be done for the rebuild... or am I wrong here?

As is, I suggested in post #85 that Elwood should discuss this with Fair Trading. If he does I’m sure they would go through issues with him and I’m sure they’d highlight if he’s got such a weak case that the judge could see it as frivolous and as such he could be liable for costs... If he has talked to FT, it’d be great he posted some feedback whether he should or shouldn’t proceed with a small claims case...

In my opinion, such a case is not frivolous, difficult yes but not frivolous... so costs won’t be an issue as I see it... But I’d still discuss it with a consumer affairs body to clarify all the subtleties. As for costs, if you have any reference that states costs will be awarded in small claims, I’d be more than happy to read and digest such references. May even change my mind as I’m not pig headed. For the moment, I think this may be a weak/difficult case but it’s not frivolous case... so costs wont be an issue.

As for your “judges“ running commentary, the questions are very biased and a judge simply won’t ask questions in such a manner. Also a claimant, I’d expect would answer more appropriately than what you suggest. If someone is so ill prepared, then I’d suggest a small claims court isn’t for them ;)

As for Elwood, it’s for him to asses the risk reward equation, both w.r.t going to small claims court And w.r.t whether he actually dismantles the engine to assess it for a rebuild or do a cheap cam/lifter job ignoring the piston slap Issue.
 

Skylarking

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... The lack of oil change issue still remains, even with the private mechanics one....It has been said, he was 7 or 8 thousand over after the private mechanics service.
Elwood states he had oil changed at 30,000kms then did the Holden 30k factory service at 38,000kms... but yes lack of the documentation for that 30,000 km oil change hasn’t done him any favours...
Judges look at all evidence and lean towards documented evidence, more than verbal....Sorry, but all documented evidence falls into Holdens favour, whether we like it or not....
Yes, documentation falls in Holdens favour and documentation makes it easier for judges as things become a factual determination. But a compelling testimony may give the judge a moment of pause where he considers such testimony. If he believes the testimony, then it’s over for Holden, if he doesn’t then it’s over for Elwood.

Just keep in mind that Holden can’t prove he didn’t change the oil @ 30,000kms unless some statement about the oil condition was included in the service report the dealer provided (and if that’s the case you’d be stupid to go to small claims court).

Oddly the dealers comments seem at odds with Holdens determination so there is that as well but how to get it into the record is the issue...

At the end of the day, Elwood doesn't seem to want to go down the small claims path and that’s his choice of course. Following his rebuild thread may be more Interesting from now on (as this thread seems like the sudden loss of power steering assistance thread where I was being bagged for expecting Holden to do a recall on the issue).
 

stooge

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As for your “judges“ running commentary, the questions are very biased and a judge simply won’t ask questions in such a manner. Also a claimant, I’d expect would answer more appropriately than what you suggest. If someone is so ill prepared, then I’d suggest a small claims court isn’t for them ;)
if you think that then it is clear you have not had much experience in court cases.

The judge would ask questions along those lines because the whole case would be about whether the poor maintenance was the cause or were the lifters faulty.

You cannot prove those lifters were faulty but you can prove the vehicle was poorly maintained because he has no evidence to prove it was maintained by a qualified mechanic.

Courtrooms do not run on dreams, wishes, and what you think is right they run on evidence.
You can stand there and "say" the dealer said i shouldnt have to pay and they can say they said no such thing so unless you have proof of that it is a useless statement and if the judge does his/her job properly he/she must ignore it.

Dealers get away with not paying to fix poorly maintained vehicles all the time because they know it will be ruled in their favor.

You keep saying they dont award costs but they can.
If you file the case and lose they can apply to have a portion of their legal costs reimbursed, the costs are capped but they "can" be claimed and while it is not a large amount it all adds up if the judge awards it.

Your own lawyer will charge anything from 200 to 450+ per hour, the lawyers we are currently using in a non-conforming use case charge 200 for the assistant and 500 for the lawyer.
You will pay them to do anything they do even reading an email will be charged so these costs add up fast.

You could represent yourself but that is not advisable unless you actually know what you are doing.

I know what you are trying to say and if elwood had proof he did get the oil changed by a mechanic he would most likely win and have it fully paid for and get a portion of his costs reimbursed but in its current state with no evidence to prove it was a faulty product he will lose and taking it to court would be the equivalent of flogging a dead horse to get it to run.
 
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vc commodore

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Elwood states he had oil changed at 30,000kms then did the Holden 30k factory service at 38,000kms... but yes lack of the documentation for that 30,000 km oil change hasn’t done him any favours...
Yes, documentation falls in Holdens favour and documentation makes it easier for judges as things become a factual determination. But a compelling testimony may give the judge a moment of pause where he considers such testimony. If he believes the testimony, then it’s over for Holden, if he doesn’t then it’s over for Elwood.

Just keep in mind that Holden can’t prove he didn’t change the oil @ 30,000kms unless some statement about the oil condition was included in the service report the dealer provided (and if that’s the case you’d be stupid to go to small claims court).

Oddly the dealers comments seem at odds with Holdens determination so there is that as well but how to get it into the record is the issue...

At the end of the day, Elwood doesn't seem to want to go down the small claims path and that’s his choice of course. Following his rebuild thread may be more Interesting from now on (as this thread seems like the sudden loss of power steering assistance thread where I was being bagged for expecting Holden to do a recall on the issue).
This whole statement is showing you are clinging to hope that won't hold up....

Honestly if it was to go down the court path, it would reinforce their stance relating to servicing on time
 
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Elwood

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Cheers for all the commentary on the matter. I’ve been off talking to people about the fix using stock gear and upgrading some things. An as is where is for sale briefly went through my mind as well, then I had a drink and snapped back into reality

At the end of the day the fact I can’t get proof (yes can’t, spent the week on that as well) is my fault as I’ve said. The change happened but I can’t produce it to prove my case in court. What I can do though is have the engine inspected when I get it fixed and then go Holden for costs when it comes back that oil wasn’t an issue.

Yes it’s a rather large outlay to get it fixed, quotes of $3300 for stock lifters and cam leading up to $5800 for lifters, upgraded Cam, air intake and tune. Basically I’m thinking stock gear is a waste of time hence looking at upgrade as well but it’s starting to get expensive (expensive lesson in record keeping). The thought also crossed my mind to just get the dealer to repair the issue so I have a better chance at proving my case later down the track.

Not driving the old girl at the moment so just taking my time to work it all out.
 

Subju

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The best thing about learning the hard way is you generally learn the lesson well.

Mine was a Audi Twin Turbo A6, what a hard lesson that was.
 

UTE042_NZ

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Then again, if you can get it to be quiet when warm, there's always that other option of trying to trade it in on something else (at a different car yard).
 
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