This might be the crux of your issue. The dealer (mechanics) may have ‘substituted’ oil which shouldn’t have been used to save them money, not realising the impact it could have on gearbox operation.
If this was the case, it may not be classed as a warranty issue but negligence by the dealership. It is a bit like a mechanic dropping a tool on a panel causing damage…the mechanics action caused the damage and is unrelated to a car warranty provided by the manufacturer. The dealership is responsible for rectifying at their costs and can’t claim reimbursement back from the manufacturer.
The way negligent claims are dealt with is very different to a warranty claim, and one can’t be used instead of the other. In relation to negligent claims, many legal firms have general info such as this one…
The ACCC doesn’t deal with such claims. If the wrong type of claim is pursued from an outset , the outcome is only tested against the claims being made…such as dealing as a warranty claim when in fact it may not be the right avenue to pursue. In some cases, claims can be struck out due to incorrect claim being used. This is why sometimes seeking legal advice can be useful.
A reasonable summary seems that Subaru denied any responsibility for its dealer doing the wrong thing using a non-approved lubricant for routine service, the dealer denied liability in its own right, and the ‘system’ could care less leading to a ‘too bad so sad’ scenario where the customer was on his own.
A reasonable analogy is that Harvey Norman corporate takes no interest in nor responsibility for the actions of its franchisees unless it desires to do so on the rare occasion, as shown by numerous posts across this forum and on the internet.
Customers will shop at a store or buy a vehicle for many reasons, one being trust. When the brand/manufacturer breaks that trust because ‘it was the franchisee/dealership doing the wrong thing, nothing to do with us’ it should damage the brand but history suggests it rarely does.
I guess in that respect, I think I do have all the elements for claiming negligence, but the thing with my car is that the performance of the gearbox has improved so I don’t have much in the way of damages. I would need an expert that agrees that the condition of the parts have been effected. I do have confirmation form an independent vehicle inspector, that given the history of the vehicle, the value would have to be reduced up to to the value of $5000.00 to realistically find an interested buyer if I was to sell. Not sure if that would qualify as damages.
But the big issue here this negligence is not an isolated case, and potentially an issue for hundreds if not thousands of other vehicles. What if someone else’s transmission failed outside of warranty period and the owner was told they need to pay for it. I think statistically there is a very good chance that it has happening. I think this is where the ACCC should be investigating the repairs done on all the vehicles that have had the non-approved oil used. If they did find some effects to the longevity the vehicles, is this something that should be addressed in the form of a class action by the ACCC? Like the Ford Focus unconscionable conduct class action
How likely to prove beyond reasonable doubt the price was fair on the day and affected as suggested?
It’s a notional value, only vaguely assessable if you have evidence of a sale. There are too many variables. One only needs to look at auction sales of distressed real estate or disputed estates to see there is most likely a greater loss in pursuit. I do empathise though having owned at least one real second hand lemon.
Is there any benefit to be gained in this?
There may be many non-approved lubricants that are equal or better than the the one recommended by the OEM. Most manuals provide an API specification or other standard rather than a specific branded product. In deed many specialty lubricant makers sell their goodness on such claims.
Not to differ, but is there a history of failures of Subaru manual gearboxes?
I’ve owned several manual Subarus and driven others including a fully rally prepared WRX. I’d suggest the gear boxes are reliable, but not the slickest in operation. They are indeed stiff when cold compared to many others, but not as difficult as the manual in the tractor. At least until the bucket loads of oil in it’s transmission are warmed.
The example in your instance has no evidence of damage for the present. The Ford Focus example has demonstrated negative outcomes. One would appear more likely of success.
P.S.
Do you have any oil sample analysis from your vehicle?
If there are untoward issues around lubrication it would be one logical place to look for evidence of impending failure or abnormal wear/failure.
I agree with you but this is not the case for my vehicle, AHG Newcastle’s group service manager even clarified the syntax 75w90 has better shifting qualities. I had serveral opinions from independent Subaru repairers. I even had an email from the STI headquarters in Melbourne with their opinion that the oil would have been my issue. All submitted as evidence
That is why I suggested the ACCC inverstigate. I don’t have the resources to clarify anything.
Wouldn’t you think a comment like this from a tribunal member would trigger some sort of follow up by the ACCC?
Unfortunately after the inspection from independent mechanic, I discovered that they are one of the preferred repairers for Subaru transmissions. It ended up being a drama getting the report because they told me they no longer wanted to get involved after the inspection. They did not give me a sample of the oil nor did they comment on the condition of the oil in the report. Had I know there was a possible conflict of interest, I wouldn’t have taken the car to them
There is much to suggest the ACCC primary role is not to take up individual consumer cases. That role is typically devolved to the state level authorities or for individuals to pursue through individual private legal action. You have done remarkably well to make the progress reported. The actions of the dealer are most in question. At least there is a line in the sand, if you ever need it.
Consumers might expect more, however that is not how it is?
Typically a substantial number of individual consumer complaints of similar defects or non-compliance with ACL are required before the ACCC investigates. It is not the other way around where the ACCC investigates to determine whether consumers should be complaining, (significant safety concerns may be an exception).
It’s why I asked or noted the current lack of complaint about failures of Subaru manual gearboxes.
There are several options for independent sampling of your motor vehicle gearbox lubricant. If it had any damage from prior inappropriate maintenance, lubrication or manufacture the latest samples of used oil will assist. Alternately several samples over a number of years might suggest all is perfect and the vehicle’s resale value should be unaffected?
Or that’s how I might approach things if it was my Sti.
I was aware that the ACCC don’t take on individual claims so I guess that would be the possible false & misleading conduct at the original repair.
This is more so what I was implying that the ACCC should follow up. False & misleading representation effects all consumers.
I will definitely consider periodic oil testing. The dealership has said they will take responsibility for any fault and offered an additional 3 years warranty on the transmission. A few tests for now till then might be beneficial.
This would be extremely difficult to prove. The second hand market (including vehicles, property, antiques etc) is based on what a purchaser is willing to pay on the day based on a range of different factors. The only way to effectively prove a loss would be to have two exactly the same vehicles (with same accessories), in the same condition, with the same service history, with the same mileage and one with and without a history of transmission problems. One would then need to see how potential purchasers value each vehicle at the same moment in time.
Buyers in the second hand market also try and get the lowest price possible, unlike when buying a new vehicle where the vehicle price is more of less fixed through its manufacturing and delivery costs (very little room to negotiate a lower price).
If the vehicle with a history of transmission problems is disclosed to a purchaser and to impact on the value, one would also need to be confident that the problem has not been resolved and it will cause a problem at some time in the future (no differently to the similar vehicle without a transmission problem).
The above would be very hard to prove and it is likely that of the transmission problem has been resolved (from what has been indicated) and as such shouldn’t affect the resale value of the vehicle.
If the transmission problem, which appears has been rectified, significantly impacted on resale values, then any vehicle which had a defective part or problem over its previous life would also have its value impacted. This could encompass most vehicles as over time components will fail (either within or outside of warranty period) and need replacing/rectification.
This is only with one consumer, which is you. You would need to prove that there are a significant number of other consumers which are in the same boat. It is possible that you may be one of a handful, or even the only one who has had issues with the particular service at the dealership.
Such information may be useful should you try to use other avenues to get some sort of restitution, if restitution is possible since it seems that the issue has been more or less resolved.
Damages or costs could include things like having to hire a car while they rectified the problem. Taxi fares to and from the dealership to drop off/collect the vehicle etc.
If you don’t have such costs and since
there may not no further opportunities for a recourse.
If you haven’t yet done so you can indeed make a complaint to the ACCC. It is likely that it won’t be acted on if a lone instance, it may be if ACCC decide it’s worth doing so for “warning” reasons but that is totally an unknown.
The ACCC address to report an issue is (as advised by @meltam in January) :
AHG Newcastle’s group service manager made it clear that they use the oil in other vehicles
To add even more craziness to the story, when AHG Newcastle’s group service manager said “Subaru are aware in writing”, he is not referring to evidence submitted for the hearing, no evidence was submitted to support this claim. I fact, no evidence was ever submitted by Crossroads. AHG Newcastle’s group service manager made claims that he had documents at the hearing and tried to read them. One document was a letter from Castrol saying that they recommend they oil. The tribunal member didn’t say anything when he read the letter, but when they started talking about more documents the member had this to say:
“The difficulty that I have with you producing these documents at this stage is that you haven’t produced them in accordance with the directions”
Crossroad’s Service manager then said “Yep, these were just verbal discussions obviously between Ben and myself”
The member added “But the tribunal made some directions that you provide to us and to the applicant any documents that you with to rely upon, and what you need to be aware of that when in proceedings you choose not to do that the tribunal may in some circumstances, draw an adverse inference from the fact that you don’t produce the documents. We are entitled to say that if you choose not to produce the documents we can conclude those documents would not have assisted your case. So when you made a decision not to provide something, you need to be careful about that. If its not going advance to applicants case, produce it. Because at the end of the day when you the then say look, you know here it is its blank, doesn’t help me or help him, but its not been doctored, I can put some weight on that. If you just tell me that you just found it and just decided not to give it to me cause you know, you didn’t think it was going to be helpful then you lose that benefit. Okay”
Again he said “These are just obviously verbal conversations between Ben and myself”
Tribunal member: “I wasn’t saying that you had to tell us or not tell us because they were discussions between you, but rather that we’re here for a formal hearing and I don’t have any documents, and you’ve clearly got some to the table that you brought along today. Had you provided a copy of those to us and to the applicant in accordance with the directions then I could look at them, and I could take them into account. But I cant do that, because it would be procedurally unfair for me to do that as this point, so you just need to be careful to try and comply with the tribunal’s directions and provide the documents”
AHG Newcastle’s group service manager asked the member where the email was sent with the directions claiming he hadn’t seen them. The member gave them the address of the service manager and he replied:
“Yep far enough. I apologise for the mishap”
I later asked again “the reason you didn’t submit that was you were unaware of the date to submit evidence?”, and he replied “Yeah. Hundred percent” and then the member added:
“Can I just say on that as well, that there were two letters, not one would have gone to you. The second one was when Mr Cairns asked for an extension of time to provide his documents because there was a delay and we extended the timetable and we sent that to you on the 10th of October. So there were two notifications to you that there were directions which had been made for times by which things were expected to be done.” AHG Newcastle’s group service manager did not say anything.
So the appeal process has the same system of sending out the directions to submit evidence and once again, Crossroads did not submit anything. I sent an email to appeal panel asking if they received anything, and another email was sent out by the appeal panel asking them to comply with the directions, by nothing was submitted.
At the appeal hearing, one of the members went though the documents submitted which were the notice of appeal, reply to the appeal, and the documents that I had submitted. When ask if there were any other documents that were missed, AHG Newcastle’s group service manager replied:
“Nah not as far as I know”
The appeal panel did not ask why they did not submit anything and when I tried to ask AHG Newcastle’s group service manager, I was told that this was not my opportunity to interrogate AHG Newcastle’s group service manager.
AHG Newcastle’s group service manager spoke again as though he had some documents with him and again, brought up the letter from Castrol.
The member asked AHG Newcastle’s group service manager about the Castrol letter “Is that letter that you just referred to in evidence before us?”. AHG Newcastle’s group service manager replied:
“Not before you, it was before the initial tribunal hearing”
I know the ACCC do not investigate an individual’s claims, but what about false and misleading conduct during a recorded hearing to a tribunal member? They submitted no evidence.
I just want to share everything so everybody can see what I have had to deal with during this dispute. I had no idea what to expect and hopefully this can help the next person be more prepared.
They may do so, only if you make a complaint will you find out if they do so in your case or not. If a person gives false or misleading evidence in a Court it is perjury and attracts a penalty which can be severe, the perjury is dealt with by a Court. In a Tribunal I don’t know exactly how they deal with perjury as it is a bit different to an actual Court of Law. Ok found out that possible perjury must be referred for investigation if done in a Tribunal, the Tribunal cannot take direct action, they do not have the power to do so. See the following from a Tribunal
"DIRECTIONS:
I direct that the Principal Registrar refer a copy of the papers in this matter and these reasons for decision to:
(a)The Commissioner of the Queensland Police Service for investigation of Mr Allen for perjury, forgery, fraud and attempting to pervert the course of justice."
The ACCC may be interested in the claims made in a Tribunal but that becomes perhaps evidence for their investigation and not a case of applying a penalty as it is a matter only for the Courts to decide.
Why not try to seek some free legal advice, see if you have a good case to take to Court, if you do then a No Win No Fee practice might take on your case in a Court seeking damages or you may be able to get some free legal representation depending on your circumstances. Just because a matter has been decided against you in a Tribunal does not preclude you from going to a Court of Law, the evidence and decisions from the Tribunal will assist the Courts in their decisions. Some Tribunal decisions have been overturned when taken to Court.
The matters you have referred to from your case obviously were seen and dealt with by the Tribunal, some of what you have posted in this topic is what you believe was done incorrectly and on Appeal were not seen in the same light as you see them. While posting them may shed light on the ordeal the only way you may actually prove your concerns is to take further legal action. Posting them here with your opinion may indeed even cause you to be taken to Court by the other party for libellous comments, which you then will have to defend in a Court.
I’d be lying if I said that I wasn’t worried about revealing the details of the hearings given that AHG and Subaru are such large companies. Its probably the reason why its taken me so long to do so. I am just sticking to the facts, and that is why I will be sharing the transcripts of the hearings.
Another part would be when the tribunal member at the first hearing referred Crossroads to a document that I had submitted. It can be seen on Castrol’s website
Member – “I’m just going to just ask you to look at the middle of the page”
AHG Newcastle’s group service manager – “Yes”
Member – “Subaru all models from 1984 through to 2014”
AHG Newcastle’s group service manager – “Yep correct”
Member – “well this is a 2016 model”
AHG Newcastle’s group service manager – “I fully understand that and hence why I’m, put it this way, I’m coming here saying to you that this the letter I’ve got from Subaru Australia. This is dated the 19th of September 19 saying to me that that’s the oil they recommend in these particular cars. Ah sorry, not Subaru Australia, Castrol Australia. Okay, so I take that as what the oil that we use and recommend, and that’s dated 2019. Their website is way out of date, way out of date because as a matter of fact, yeah it finishes at about December 2013, cause I’ve had a look at exactly the same thing”
At the time, I didn’t notice that when he said “December 2013” that the document is actually dated 21 Apr 2015. The oil was first used in my car at the warranty repair dated 17 Dec 2015
I did bring this up in my written submissions to the appeal buy nothing was mentioned at the hearing or in the publication.
I guess this is the part that has been one of the hardest parts to let go. Fair Trading NSW/ACC/NCAT may or may not have done something. We don’t know and will never know.
I would personally like to know what business have had something dealt with by the ACCC. I fell like I’m rolling the dice when I get anyone to supply me with a service now, because I don’t know their history I am now struggling with trusting anyone. I think the services we receive would be better if this kind of information was available to the public.
QCAT certainly provides access to the written reasons for decisions but not the verbal decisions/reasons that are made in minor matters, I would hope other States/Territories also do it.
Community Choice forum unlisted this thread and asked me to confirm that the comments I had made in regards to the hearings were true.
I have been given permission from NCAT to produce the Community choice editors and publishers with the recordings of the hearings so they can verify the comments. The process took three months to get permission from NCAT but the thread is now listed again
I fully understand and appreciate Choice’s concerns, and that they take pride in making sure that their forum remains safe and true for everyone.
As one in the community with an above average interest in cars, especially manuals with special followings, your efforts are appreciated. It’s a challenging but educational experience to read.
Laying bare the steps along the way from new car and through the tribunal is not what we see everyday. Time poor and not knowledgeable many of us likely take the easier path. This includes dumping a vehicle as a trade or private sale at first opportunity rather than persist with ongoing issues (finances permitting). We seem as a tribe to often prefer to suffer financial stress over the stress associated with taking on the system and difficult situations dealing with others.
Having owned 3 manual Subarus, and had the opportunity for a drive in a rally spec WRX, I’d expect for the purchase cost an Impreza STI to be near perfect in all respects. Although the gear shift in one in particular model I owned was never that fast. More like deciding which to select from the 12/24 to use on the tractor. You may have provided an explanation.
