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Having a battle with Holden due lifters

Elwood

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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).
It’s actually not noticeable when warm haha..............honestly I just can’t do that, I’d feel like cxxx that somebody else is just getting my problem.
 

Subju

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That actually wouldn't be on you, that would be on the dealer. If the dealer then did the same, they would have to honor the warranty. Either way, its a haircut no matter which way you look at it because the dealer never trades a car in unless its good for them.
 

Skylarking

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... 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've stated many times I'm not a lawyer but i can read... (and i'm aware Elwood has moved on but I'll answer the cost issues a little...)

Continuing on from the VCAT links i provided to @Spec, here is a link that confirms the general principle is that each party carries their own costs, which i'll repeat it here:

At VCAT each party usually pays their own legal costs unless we are satisfied it is fair to make an order for costs. This means you generally don't have your costs paid by the other party even if your case is successful.
We will only order one party in a dispute to pay some or all of another party's costs if we decide it is fair and if a party has been disadvantaged. For example:
  • a party did not act appropriately (they were 'vexatious') during the case and that unnecessarily disadvantaged the other party
  • a party has delayed a hearing without good reason, or made it take longer than it should
  • a party has tried to deceive the Tribunal or another party
  • a claim has no reasonable factual or legal grounds to support it.
Added to that, of interest is the following link, repeated here:

if the claim is for goods and services under $15,000, we generally don’t allow a lawyer or other professional representative to speak for you at VCAT.

Of interest further up the above mentioned page, it also states the following:

In some cases, if your party is a company then you must nominate someone to represent the company. Put the nomination in writing and have the director of the company sign it. The person representing the company must bring this document to the hearing.
You must make sure the person who represents the company:
  • understands the dispute so that they can present the case
  • has the company's permission to agree on a settlement
  • can make promises to VCAT relating to a decision.

So when these facts are considered, other than application fees, it results in low risk of being stung legal fees for a goods and services claims less than $15,000. As in such cases lawyers are normally not permitted. Further, if a party wants a lawyer for such small claims, they need to apply for the courts permission to be represented by one, which generally isn't allowed in these small <$15,000 cases.

But YES, there is still the issue of fees being awarded under special circumstances, like if you were behaving maliciously in some way or had such a weak case you shouldn't have brought it to the tribunal. But the judge would need to believe that these "special circumstances" actually warrant an award of costs (where costs wont be in the thousands because of the above).

Normally "special circumstances" are not an issue if one has clean hands so to say... which is good because it encourages people not to waste courts time by not turning up or by telling lies. And not having lawyers present reduces each parties own costs in these small <$15,000 claims.

Though the above is for VCAT, since i had these links handy when answering spec3, NSW NCAT is much the same though i think the break point is different, $10,000 from memory.

WA they seem to not have Tribunals for minor case claims but again they are similar in principle to other states though held in a Magistrates Court rather than a tribunal (from what i have read). One big difference in WA minor case claims is that costs CAN be awarded though legal fees are excluded from these awarded costs (again from what I've read). This WA minor case cost issue seems to be in contrast to VCAT and NCAT.

It may also be that your experiance is with much much larger claims ( General Procedure Claim) where that seems a different ball game, especially where legal representation is expected and legal costs are awards.

SA seems to follow the WA principles where minor case claims are handled in teh Magistrates Court.

As is, I've got limited tribunal experiance, and I am not a lawyer as I've said, but in the few cases I've been involved in, my experiance has been no lawyers involved and no costs awarded.

Peoples individual situations may be different and their jurisdiction may have subtlties but thats why each person should discuss their situation with their state consumer group and some satte legal group (many groups that provide free legal advice, including duty lawyers at small claims tribunals themselves).

So costs aren't a big risk in small claims in some states, a slightly bigger risk for small claims in WA, SA and maybe some other states... It may be we are both both right and both wrong :eek:

As to your other points about proof, I'll address them another time as I'm feeling crap since I've been sick last couple of days. Not a great time to be sick with Covid spreading up the coast of Australia...
 

stooge

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I've stated many times I'm not a lawyer but i can read... (and i'm aware Elwood has moved on but I'll answer the cost issues a little...)

Continuing on from the VCAT links i provided to @Spec, here is a link that confirms the general principle is that each party carries their own costs, which i'll repeat it here:

At VCAT each party usually pays their own legal costs unless we are satisfied it is fair to make an order for costs. This means you generally don't have your costs paid by the other party even if your case is successful.
We will only order one party in a dispute to pay some or all of another party's costs if we decide it is fair and if a party has been disadvantaged. For example:
  • a party did not act appropriately (they were 'vexatious') during the case and that unnecessarily disadvantaged the other party
  • a party has delayed a hearing without good reason, or made it take longer than it should
  • a party has tried to deceive the Tribunal or another party
  • a claim has no reasonable factual or legal grounds to support it.
Added to that, of interest is the following link, repeated here:

if the claim is for goods and services under $15,000, we generally don’t allow a lawyer or other professional representative to speak for you at VCAT.

Of interest further up the above mentioned page, it also states the following:

In some cases, if your party is a company then you must nominate someone to represent the company. Put the nomination in writing and have the director of the company sign it. The person representing the company must bring this document to the hearing.
You must make sure the person who represents the company:
  • understands the dispute so that they can present the case
  • has the company's permission to agree on a settlement
  • can make promises to VCAT relating to a decision.

So when these facts are considered, other than application fees, it results in low risk of being stung legal fees for a goods and services claims less than $15,000. As in such cases lawyers are normally not permitted. Further, if a party wants a lawyer for such small claims, they need to apply for the courts permission to be represented by one, which generally isn't allowed in these small <$15,000 cases.

But YES, there is still the issue of fees being awarded under special circumstances, like if you were behaving maliciously in some way or had such a weak case you shouldn't have brought it to the tribunal. But the judge would need to believe that these "special circumstances" actually warrant an award of costs (where costs wont be in the thousands because of the above).

Normally "special circumstances" are not an issue if one has clean hands so to say... which is good because it encourages people not to waste courts time by not turning up or by telling lies. And not having lawyers present reduces each parties own costs in these small <$15,000 claims.

Though the above is for VCAT, since i had these links handy when answering spec3, NSW NCAT is much the same though i think the break point is different, $10,000 from memory.

WA they seem to not have Tribunals for minor case claims but again they are similar in principle to other states though held in a Magistrates Court rather than a tribunal (from what i have read). One big difference in WA minor case claims is that costs CAN be awarded though legal fees are excluded from these awarded costs (again from what I've read). This WA minor case cost issue seems to be in contrast to VCAT and NCAT.

It may also be that your experiance is with much much larger claims ( General Procedure Claim) where that seems a different ball game, especially where legal representation is expected and legal costs are awards.

SA seems to follow the WA principles where minor case claims are handled in teh Magistrates Court.

As is, I've got limited tribunal experiance, and I am not a lawyer as I've said, but in the few cases I've been involved in, my experiance has been no lawyers involved and no costs awarded.

Peoples individual situations may be different and their jurisdiction may have subtlties but thats why each person should discuss their situation with their state consumer group and some satte legal group (many groups that provide free legal advice, including duty lawyers at small claims tribunals themselves).

So costs aren't a big risk in small claims in some states, a slightly bigger risk for small claims in WA, SA and maybe some other states... It may be we are both both right and both wrong :eek:

As to your other points about proof, I'll address them another time as I'm feeling crap since I've been sick last couple of days. Not a great time to be sick with Covid spreading up the coast of Australia...


You are flogging a dead horse mate, there is no way he will win with his situation.
You just cannot prove the product was faulty and no judge will award him the win.

The costs i was talking about were for small claims not vcat, he will get absolutely nowhere with vcat.

Acl covers the consumer when the consumer follows the correct maintenance but it will not cover faults caused by the consumer and in this case elwood caused the failure and you cannot prove otherwise.

Dealers have been using this loophole for decades and it is not going to change.

You can read all of the law literature you like but it does not change the fact the evidence shows he missed the specified servicing required and no boston legal tv style testimonial will change that and that is why the dealer said to elwood "see you in court" because they know they will win.
 

keith reed

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I believe that you have shot yourself in the foot and it's time to move on. This issue even if you are
successful could take a long time to resolve.

The two companies that I have dealt with are Shane Alex engines and Western Suburbs Mechanical.
I would recommend Shane Alex to anyone and cannot speak highly enough of him. As for Western
Suburbs after my previous dealings with them I would not recommend them to anyone. As for
Walkinshaw I have only heard good about them. My only concern is that you are paying too much
for the name.
 

OZI 378

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My 17 VF SS has a clicky sound at start up and continues for a block and a half then fine. Its got 120k on it so whsts the chances of a similar problem or is that just what they do.
 

BLACK-VE

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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...
check your credit card statement for oil and filter purchase this would be good proof of oil change.


Maybe try another dealer some seem to fight for you other dont care just want the $$$$
 

vc commodore

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check your credit card statement for oil and filter purchase this would be good proof of oil change.
Unfortunately this doesn't prove an oil change...Only proves you bought a filter and oil to suit a particular engine
 

Mayuri Krab

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@Skylarking,
I'm going to say it here, something doesn't smell right if the OP can't get a reprint of the independent mechanic who supposedly did the 30k service as that will be indisputable proof.
Could be one of those really old school mechanic shops without a computer/printer (besides the OBD reader tools) in sight & everything is all hand written?

I take my other vehicles (Mitsubishi 380, R33 Skyline when I still had it) to a one man shop near Perth (He has beeb running since pre VN days), the place has no website, no computers, no reception area with fancy coffee machine, a basic corded phone and all bookings are hand written in an old school diary & he writes out the job card & recipets.

About the most modern piece of equipment he has is a tablet OBD reader.
 

stooge

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Could be one of those really old school mechanic shops without a computer/printer.
I think you will find it was a mechanic that was not qualified on paper, basically a mate.
If it was done by a qualified mechanic all it would take is a statutory declaration from a qualified mechanic and holden would be paying for the repair
 
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