It’s been a while since I first posted on Choice community about the issue with my Subaru WRX STI, you can get up to date at the following link:
To add to this story, I decided to appeal the decision made by the tribunal. I did not have much to work with for my grounds of appeal, I did not get any written reasons to why I was denied a remedy in accordance to section 54 of the ACL (guarantee as to acceptable quality) which would entitle a consumer to a repair, refund or replacement. I only had what was said during the hearing by the tribunal member, so I paid to acquire the recording from NCAT and I think the most relevant parts are:
“ultimately what you’ve got to have is not just evidence that somethings happened, but its got to be a major failure to comply, there has to be a cause and effect. Really, and so generally you would want to say that there’s some evidence that the fact that this oil rather than that oils been in the engine didn’t just historically cause some shifting difficulties because of the viscosity but has actually damaged the gearbox, and I have no evidence of that is the case. So I think that’s where the link that would take you back to a full refund”
A bit confusing because later said:
“And it may be that the proof is in the pudding in that, now that the correct oil, or the, I won’t call it the correct oil, but the oil recommended by Subaru is now being used rather than the oil recommended by Castrol, the mechanic says the performance of the gearbox has improved. So there might be a cause and effect”
The members closing words:
“Okay, well I’ll determine the matter and I’ll send out my decision with written reasons. I’m not quite sure when I’m going to be able to do that, but I will do it as soon as I possibly can. So I’ll reserve the decision, the reason I’m doing that is because I want to have a look at, a careful analysis of the provisions in relation to the remedies. I think there’s, as I’ve said a number of times during the hearing it’s clear that there have been some breaches of the ACL, but the question is what remedy is appropriate and I need to have a close look at that”
My grounds of appeal was that damage can’t be the only form of unacceptable quality
It was dismissed again. I received some written reasons that were never mentioned at either hearing nor did I get a chance to defend their views. Nothing was said about my grounds of appeal or many other aspects of the first hearing that I thought were relevant. The reason that it was dismissed a second time seems to be that section 54 does not apply because the oil was used AFTER the supply of the vehicle. It seems that any faults/failures caused by servicing after the supply can never equate to the consumer being entitled to a remedy under section 54, no matter the circumstances.
You can see the publication released by the appeal panel at the following:
https://www.caselaw.nsw.gov.au/decision/1726d09b7834688f653f04e0
I tried contacting NCAT asking if the appeal panel considered the fact that the oil was first used during the original warranty repair. The dealership is the contracted party to fix the existing fault of the vehicle for Subaru Australia, shouldn’t that be considered as part of supplying me an acceptable quality product? Part of the supply of the vehicle? They would not comment.
As disappointed as I was/am with the outcome, the recorded sessions have given me this opportunity to share some information that just can’t be written off as hearsay. I hope by sharing this, I can help anyone that may have or have had an issue with their vehicle, and they might want to take action or even if you simply don’t want products used in your vehicle that aren’t recommended by the manufacturer.
Like the publication shows, the respondent/appellant was AHG Newcastle Pty Ltd trading as Crossroads Subaru located at Glendale NSW. The dealership part of the AHG motor group consisting of about 180 other dealerships included a variety of brands (Subaru, Mazda, Toyota, etc). I discovered that they were not using the recommended/ correct specification of gearbox oil which was causing shifting issues. Subaru only recommends 75w90 and the dealership is using 80w90. The publication has all the details about what happened, but I want to share what was said by the tribunal members and by AHG Newcastle’s group service manager [during this time] who was at the hearings.
AHG Newcastle’s group service manager opened his statement at the first hearing:
“So my area of expertise, I’ve been an automotive engineer since 1981, so 38 years and therefor do demand some expertise. However I do agree that the 80w90 is not the recommended oil by Subaru Australia in that particular car, there’s no doubt about it in the world and I’ve not denied that from the very beginning. Matter of fact, a personal conversation with Ben was that the shifting qualities of the, not so much the 75w90 but syntrax, is better than the 80w90. So hundred percent correct with that there’s no doubt.”
The syntrax he is referring to is Castrol’s Syntrax 75w90. It is a full synthetic oil that is about four times the price of the 80w90 which is mineral based. He confirmed clearly that the oil they use is not recommend by Subaru, and that the syntrax 75w90 has better shifting qualities.
AHG Newcastle’s group service manager also said:
"In my view on an internal base is not satisfactory on our behalf and I’ve already mentioned that to Ben because its very confusing for the customer. My recommendation had I been involved in this and regardless of whether I could detect a fault or not, would have been to put syntrax oil in it"
I said at the appeal hearing that I would always want a better quality product over a cheaper product and that AHG Newcastle’s group service manager even said that he would have used the 75w90 had he been involved.
AHG Newcastle’s group service manager had this to say about that comment at the appeal hearing:
“So the truth is I did say to Mr Cairns as that I…. We’ve got to remember we must speak the truth here and not just with what memories have and the truth is I said to Mr Cairns had I’d been involved earlier I would have probably tried the other oil, the different viscosity of oil, not a better quality oil, that was never something I said cause the quality is exactly the same.”
I was claiming that using the oil had the effect of voiding the manufactures warranty which I thought the tribunal should have given more weight when making the decision. Subaru Australia’s website shows these conditions of the warranty that would not be covered:
“ A failure to have the vehicle serviced in strict accordance with the manufacturer’s specifications and recommendations in this Handbook, or a failure to have the vehicle repaired promptly in accordance with such recommendations following an accident or other damage, or after a defect becomes known or is suspected .”
“Use of non-recommended, incorrect specification, inappropriate or dirty fuel, oil, fluids, lubricants, coolants, refrigerants or water. See your vehicle Owner’s Manual or contact your Subaru Service Centre for specifications.”
Subaru Australia would not confirm any of my enquiries asking whether this product would void my warranty, but AHG Newcastle’s group service manager said the following:
“Ok so as far as the fault with the vehicle, obviously it’s were a recommendation from a manufacture and what it says in the warranty book that if anyone uses the wrong fluid it could affect the warranty, that’s exactly a hundred percent true however, this vehicle, the warranty was never affected on it, at all.”
AHG Newcastle’s group service manager did not elaborate on this comment about how he thought the warranty was never affected but he went into further detail at the appeal hearing:
“Ok so I guess a couple of things to clear up, one is with a manufacturer’s warranty, it can never be affected whilst the vehicle is serviced by a Subaru dealer no matter what is used. It becomes the responsibility of the dealer. So for example, I mean this is a question that wasn’t brought up before but I’m answering now. For example, that car had a three or five year warranty and in that time we use oil that Subaru don’t sell as new oil, and there was a problem with the vehicle, if Subaru decide not to cover it, the dealership would have to cover it. So, the owner, the consumer would never have the warranty cancelled. Its not legal, it can’t be done. The only way, now this document from Subaru is dated for vehicles delivered after the first of January 2019 but all along basically if a consumer has a vehicle serviced outside the dealing group, and they use the wrong product and for that reason the engine, gearbox, diff or whatever that case may be, has an issue, that could be an issue, I say could because they may still cover it. If a vehicle is serviced by a Subaru dealer, it is the responsibility of the manufacture or it then becomes the responsibility of the dealership. It can never ever affect the warranty whist its serviced by a dealer. Having said that, this vehicle again, the warranty was never affected”
I recently expressed my view to AHG Newcastle’s group service manager via email that when he said “if Subaru decide not to cover it”, that is the manufacturer’s warranty voided. The fact that the dealership picks up the bill for the period of the manufacturer’s warranty and calls it “warranty”, I think is deceitful and unethical. I have not received a reply about this.
I passed these statements to Subaru Australia and they replied:
“we had raised this concern with the dealership directly at the time and the matter is now closed”
A question was asked on my last post that I would like to answer:
“What I don’t understand is why Subaru Australia hasn’t jumped on this dealership from great heights. This is not the sort of publicity they need.”
Subaru Australia will not discuss anything with me but AHG Newcastle’s group service manager at the first hearing said:
“Subaru are aware in writing that AHG in generally use 80w90”
And at the appeal:
“Now we use that oil all the time and it’s done nationally, not just by us”
This is what the tribunal member said about them using the oil:
“I think the other difficulty with the defence that you’re raising in terms of the actual use of the oil is that your own website acknowledges that you or states, makes a representation that you use the oil recommended by the manufacture”
AHG Newcastle’s group service manager’s reply:
“Hundred percent yeah hundred percent. I’m not denying you that”
AHG Newcastle’s group service manager also shared his opinion on how I felt:
“Can I understand that Ben would feel apprehensive that something could happen in the future? Of course I do, and my verbal guarantee is not going to mean anything. However, I have offered in the past and will continue to do so, that should something go wrong with that gearbox, I will take responsibility for it because I’m pretty confident that it won’t.”
This next part is only recent, I just had a service done at a different Subaru dealership that was not owned by ahg. After picking up the car, I noticed a small bottle of Subaru branded fuel additive in the centre console. I asked the dealership what it was for, and they informed me that it was to be used by at 6000km between the service intervals. I NEVER received this from Crossroads Subaru. I sent them an email to ask why my car has travelled almost 100,000km and never received this product. My car has a 6 month/12500km service interval and all my services have been governed by the km’s travelled.
Their reply:
“ For vehicles that are on a 12 month servicing schedule (which a WRX STI is not) an additional fuel additive is given to the customer to put into the fuel tank approximately half way between their services (6 months or 6,000km’s).”
I asked for Subaru Australia to confirm these and they replied:
“It is also a recommendation that the fuel additive is added every 6,000 km’s if service intervals are 12,500km’s however there is not a requirement for a bottle to be provided at each service, some dealerships will provide this at each service interval for their customers however this is entirely at their own discretion.”
I shared this information to AHG Newcastle’s group service manager but he just said that it wasn’t required and Subaru Australia would no longer comment on the matter, so I forwarded the information to Fair Trading NSW. I few weeks later, I received this response from Fair Trading:
“NSW Fair Trading has notified the trader of the issues raised and all attempts to obtain a response have been unsuccessful. As a result, Fair Trading is unable to assist further with your requested outcome”
My requested outcome was to trade in the vehicle for the price that was offered at the first hearing. After the hearing I asked if it was still an option to trade in and was told ” all offers are off the table”. When they became aware that I had appealed the decision I was contacted by Crossroads Subaru, asking me if I would take the offer to trade in. I was so angry with them and I said no. I asked AHG Newcastle’s group service manager if they would consider the trade in after the fuel additive issue, and he asked if I would take the vehicle to Newcastle City Subaru (owned by AHG) so they could look at it. I did, and the trade in offer was going to cost me $10,000.00 more than previously offered.
I sent AHG Newcastle’s group service manager an email asking him why did he not reply to Fair Trading and this was the response:
“Here is my reply;
Stop wasting our time with unwarranted complaints, you have now just become a pest and we do not owe you anything as we have again done nothing wrong so please go and hassle another business.
Goodbye”
I hope this can start up a conversation about what people should think about a dealership not servicing vehicles in accordance with the manufacture’s recommendations and specifications and paying for any failures during the warranty period because the manufacture may not cover it. I thought manufactures warranty was for defects in parts and workmanship during manufacturing? and what is this doing to the 2nd hand vehicle market and the longevity of vehicles? Are they only servicing our vehicles just enough to get through the warranty period?
I will share all my written submissions and I’ll finish writing up the transcripts of the hearings for everyone’s reference. I need to make sure I remove any sensitive information (names, etc). I have been warned by AHG Newcastle’s group service manager that whatever I post would be scrutinised for its authenticity and anything not consistent with a fair true story will be seen as defamatory, so I think the safest thing I can do is share everything.
I have also shared everything with Fair Trading NSW and the ACCC. Any investigation/action they take is not information for the public, so I have to hope that something was done. It is a shame that if they do, I will never know.
Even if only one person gets something out of this post, I will be happy.
Thanks for everyone’s time
