Left deposit for a car, dealer sold the car and refusing refund

Luz1 on 23/08/2015 - 16:35

Hi,

I placed a $1000 deposit for a used vehicle 2014 Hyundai, with the understanding I would finance the remaining amount.
The dealer advised the finance manager would take a few days to return with their best finance package.
The dealers finance rates were above market rate so I choose to fund the car via my bank. During the process of financing the vehicle the dealer sold the vehicle (informing me by voice mail) and advising that my that my deposit will not be refunded. As I had not paid in full within the week.

Now that my finances are available (2weeks after deposit) to purchase the original vehicle for which I signed a contract. The dealer has offered 2 options

  1. Purchase another vehicle. (Which I do not want and is greater amount)
  2. Lose deposit

Could you please assist in helping me understand my legal position, and any referencing to NSW consumer law would be great.

Automotive

Comments

    • spackbace on 24/08/2015 - 23:53
      +4

      If they start with doing something this shady, would you really wanna keep dealing with them? Trusting them with the car, the finance, then the delivery of the new car.

      It amazes me how some people get stung, get told the wrong info, lied to, whatever, then still hand over their hard earned cash!

      Sometimes the best deal isn't the best deal :/

  • porsche26c on 25/08/2015 - 06:14

    this does happen, if you has sold it within the 7 days you have a case. sometimes they do this to force you to upgrade to a higher price. i would be firm and get a slightly better car than you wanted for the same price.
    if not i would go to fair trading and they did not even follow up to see how you are going prior to selling it.

  • Davo1111 on 25/08/2015 - 06:44

    what does the contract say? or did you sign it without reading it?

      • Davo1111 on 25/08/2015 - 07:46

        it doesnt really answer my question.

        The first point mentioned in that contract only applies if the vehicle is ready for delivery, which it isn't.

        • ozhunter on 25/08/2015 - 07:47

          Isn't it ready? Just waiting on the OP to provide finance for it.

        • Davo1111 on 25/08/2015 - 07:53
          +1

          @ozhunter: It's not ready if the finance manager hasnt contacted you about paying for it. Ready imo means you havent come to drive it away yet.

          Also we dont actually know if the contract says "subject to finance".

        • geoffellis on 26/08/2015 - 04:48

          @Davo1111:

          I think you and the rest of the world have a different idea on what 'ready' means. But here's a hint - It's not when the customer is finally ready to pay for it…

  • DarkOz on 25/08/2015 - 07:07

    I won't be surprised they did it intentionally. Perhaps even selling to an "associate" with the intention of keeping your deposit!

    I have heard and read too many horror stories of second hand car salesmen that I will never buy a second hand car to save myself that trouble. If they had any ethics they should be happy to have sold the car and refund you the deposit or call you before the contract ends to check on your status and intentions.

    • secondstory on 26/08/2015 - 14:49

      I don't think a sale actually needs to take place here for the dealer to try keep the deposit.

  • bocca on 25/08/2015 - 10:58
    +1

    DODGE!

    The dealer is just trying to get more money. say your going to fair trading and watch your money come back

    • spackbace on 25/08/2015 - 11:00
      +14

      No, it's a Hyundai

  • ozgriff on 25/08/2015 - 11:00
    +1

    Not a lawyer and I think there's more than two sides to the story. 2 weeks appears like a long time to get finance - however if you were waiting for their offer, and only begun to obtain yours afterwards, 2 weeks is realisitic (my credit union was hopeless with this aspect and took forever).

    If this contract stated finance was required as part of the contract I cannot see how it wouldn't hold until finance was approved (as long as the dealer will provide/arrange finance box ticked); not sure they could start the clock before your finance was arranged. 2 weeks is long but it's not insanely long. Not sure what kind of communication happened over this period. The $1,000 however is for them to hold the car in good faith - as you have PAID them to do so.

    I'd ask for a full deposit refund as you obtained finance for your contract and the car was sold from underneath you - the contract stated finance was necessary (hopefully).

    2 lessons, pre-approval for any large purchases. Ensure contracts are written, outlined to within what you require or amend them to what time-frame/requirements you need.

    Hope you can resolve this and it was an honest attempt for you to buy the car fairly and the dealer is earning their bad reputation in all of the comments above. Don't let them bully you into buying an overpriced car as they dangle your $1,000 in front of you.

  • shamid202 on 25/08/2015 - 15:09
    -1

    end of story, it doesnt matter what law says, what op says, or what dealer says. By just knowing whats wrong or whats right we all know dealer has not done the right thing. to be fair he should at least refund 50-70% of total deposit but we all know dealer is a dick

    • gstfree on 25/08/2015 - 18:24

      No. 1,000 back.
      Unfair to keep any money from unfair agreements.

      The dealer sold that car to someone else and he did not lose anything.

  • [Deactivated] on 25/08/2015 - 18:13

    You can't just add any unreasonable clause to an agreement or contract and expect to be able to enforce it. There is no reasonable reason for the dealer to keep the money.

    I wouldn't threaten to name and shame straight away, but if you feel like you're getting the run around or the manager makes silly excuses for keeping the deposit I would totally tell him or her that you are considering naming them or contacting the media.

  • outofdateyesterday on 25/08/2015 - 18:30
    +2

    Call a current affair

  • uz1 on 25/08/2015 - 20:25
    +8

    Quick Update - The dealer is still refusing to provide a refund, on the grounds I didn't make payment within 7days. Have had a polite chat with the senior sales member and assistance manager and been advised by all means to lodge a fair trading complainant. They will counter the fair trading complainant with a final notice payment for not only the $1000 but 25% of the vehicle.

    The other option to purchase another slightly more expensive vehicle still stands.

    They are also offering to possibly, source a similar vehicle as per the original agreement and will provide me an update Thursday. (I feel that they are simply stalling)

    I have contact fair trading to understand my position but have not officially lodged a compliant. Fair trading are willing act a a medium to assist in coming to an agreement but if no agreement is achieved it will be matter for the courts.

    • what on 25/08/2015 - 20:32
      +20

      No good person would do this to a customer.

    • ozhunter on 25/08/2015 - 21:26
      +4

      Wow they really are jerks.

      Out of curiosity, did you contact them on the final day payment was due and inform them you'd need another week to get the money?

    • Gorodemon on 25/08/2015 - 21:41
      +14

      If I were you, I'd call their bluff and lodge a case with small tribunal. These jerks can go to hell with my $ 1000!

      • ozhunter on 25/08/2015 - 21:58
        +6

        I agree, even if on the slim chance they did win, I highly doubt that any judge would force you to give them more money, and at this stage, it doesn't look like they're going to give you the money back anyway.

    • what on 25/08/2015 - 22:20
      +8

      It seems that they are saying - let us rip you off, if you fight it and demand fairness, we will punish you by ripping you off some more. They can't do that. You have a right to take the issue further. Maybe, they have something to hide and don't want to be found out. Perhaps they do this to many customers.

      • geoffellis on 26/08/2015 - 04:53
        +2

        let us rip you off, if you fight it and demand fairness, we will punish you by ripping you off some more.

        That's exactly what they're saying. Except it appears they have a contract stating that they can do this.

        They can't do that.

        The contract he signed says they can do that.

    • Scorpiogirl on 25/08/2015 - 22:29
      +5

      Tried to warn you. They will pass the buck in the hope you will give up. I'd be at their dealership every day.

    • DarkOz on 26/08/2015 - 07:07
      +3

      They are just playing the "I dare you to take us on" game. If you were going to lose your $1,000 make sure you let everyone of their potential customers know that they are dodgy as! File a complaint through Fair Trading. Even if Fair Trading only mediates you will get something back.

      • isthisreallife22 on 26/08/2015 - 12:44
        +1

        Feels like they are stuck in the dodgy 80s.

        Seriously, in 2015 in Australia this still happens?!?!?

        Not being xenophobic, but… these guys don't seem to have picked up their business practices in foreign trading environment perchance? This rubbish shouldn't be tolerated in our fair society.

    • lysp on 26/08/2015 - 12:35
      +2

      Posting a facebook status to their head office page often prompts head office to act quicker.

    • [Deactivated] on 26/08/2015 - 13:03
      +3

      Is there even any grounds for the 25% on a vehicle that you did not receive? What??

    • rapoot6 on 26/08/2015 - 20:36

      Did they say what they will be blind 25% for? That seem extremely unwarranted and leads me to believe they are just trying to scare you into not taking further action.

    • bobbified on 27/08/2015 - 13:16

      I see you've posted a section of the contract up previously, but I'm really interested in seeing what the whole thing says… are you able to somehow post the whole thing up (with your own details blacked-out, of course)?

      It'd be interesting to see if they actually have a leg to stand on.. your previous post of the part-contract seems to suggest they don't because there was nothing in writing to say that they're rescinding the contract from their end.

    • fruxo on 27/08/2015 - 17:15

      Don't let them source another car! The fact that you are considering it tells them they have you where they want. How could they possibly claim 25%? Not in a million years could they do that, they are bullying you because they know you will fold. And now you are considering rewarding their behavior?

      Post on their Facebook and link it here. Head office will clear it up quickly. Else fair trading. Don't let them intimidate you. Be strong!

      Did they contact you at, or just before, 7 days? I bet they didn't. They had you as a fallback in case someone else didn't but it, in which case they would have happily sold it to you. It's a win/win for them.

    • gstfree on 27/08/2015 - 19:57

      The dealership must be a dodge one. It did not lose one cent in regards to the car you are after and now it want to rob your deposit?

      I am sure you are not the only victim. I think it had already registered with fair trading and closing down sale is coming soon.

      • ozhunter on 27/08/2015 - 20:24

        Whether or not the dealership lost money or not, isn't really the point. The OP signed the contract and agreed to it but did not fulfill it. Whether the contract's terms are reasonable is for the courts to decide.

        You could say it's similar to a restocking fee. A store doesn't actually lose money as they can resell it again, but in this case, it's a car, which do drop in value rather quickly.

        • McFly on 28/08/2015 - 08:35
          +1

          The OP signed the contract and agreed to it but did not fulfil it.

          Neither did the dealer.

        • Scorpiogirl on 28/08/2015 - 13:52

          @McFly: Yeah it works both ways. Some dealers think they are immune to rules and laws.

        • ozhunter on 28/08/2015 - 14:10
          +1

          @McFly:

          Because the OP had already broken it.

        • McFly on 28/08/2015 - 14:14

          @ozhunter: From the information we have, it's not up to/able for the OP to break this 'section' (without action by the dealer ie. a letter being sent.)

  • Mysterious Laptop on 25/08/2015 - 22:16
    -3

    doesn't seem to add up.. OP is definitely hiding something, seems far too passive for how he/she has described what has happened to them

    "not officially lodged a complaint" "hoping the dealer will do the right thing"

    • Baghern on 25/08/2015 - 23:18

      Not really no one expect this kind of reACION…

      Theres a reason car salesmen are the most distrusted profession

    • ozhunter on 26/08/2015 - 05:10

      The OP does seem to be rather quiet. I, too, am now a bit skeptical about the OP's situation.

      For all we know, he could have had a change of mind and seeing how he can get out of the contract. Maybe it was more than 2 weeks since he had the finance. What is a reasonable time frame is the dealership allowed to sell the car? Why did it take him so long to get finance through his own bank. Should only take a a few minutes to apply online, or he could go into a branch straight after signing the contract since he knew he didn't have the funds.

      Edit: Also a possibility that he didn't name the dealership is because he knows he is wrong(I realize that some users don't name third parties due to unintentional defamation)

      • Serapis on 30/08/2015 - 13:25

        I like how most are negging based on what is, in their opinion, unfair whilst disregarding whether dealer was acting within their legal boundaries. Also a lot of the comments are based on speculation, and existing prejudices. And ACA / Media option… lol

        OP should actually seek legal advice rather than going on Ozbargain.

        I'll show myself out…

  • cre8ive on 25/08/2015 - 23:48
    +3

    Did the dealer advise you that the car was ready for delivery, as this is a key point in the contract. If they did was it verbal, as this is then hard for them to prove.

    Also, I would call their bluff on the 25% deposit as the agreed deposit was $1000, the contract says the deposit can be kept if the car is not collected, but only up to 25%. This clause is there for those who leave a $10,000 deposit on a $12,000 car. In your case the deposit was agreed at $1000 and that's all that will be kept.

    Don't give this dealer any more business. Go to small claims court, lodge your complaint.

    Is this dealer associated to Hyundai? If so call them, and complain loudly - they will likely try to resolve this for you.

    I'd go the other route, and try to threaten social media attention, current affair, channel 7 etc - this will be more effective if they are a larger dealer, less effective if they are a small place on Parramatta road who are already known as sharks.

    • dazweeja on 26/08/2015 - 16:41
      +3

      Agree with this. If this was no recorded notification that the car was ready for delivery, the OP may have a case.

    • holdenmg on 26/08/2015 - 18:59

      I thought it was Parramatta Eels? lol

  • thierry on 25/08/2015 - 23:48
    +1

    Something doesn't seem right on this story..

    I'd be talking to every customer that walked into that dealership until I got my refund.. and definitely fair trading and ACA worthy.

    It really hinges on what happened on the 7th day..

  • easternculture on 25/08/2015 - 23:57

    TP the dealership

  • Captain Electrode on 26/08/2015 - 00:21

    Working in retail, I have to deal with slightly similar issues for lay-bys. We can charge a restocking fee, but the fee can't be more than a small, nominal amount. I don't remember the exact dollar amount, though. It doesn't matter what contract a retailer has, that maximum restocking fee cannot exceed a certain legal maximum. For W.A. retailers, there is also a reasonable time length customers have, beyond any contracted time, to make a second payment.
    Like I said, that is for a retail store. Car sales will likely differ, but I highly doubt any car seller can keep your deposit. I doubt they acted legally by selling the car you had a deposit on, without making reasonable attempts to contact you, reiterating the contract (telephone call, email etc.)
    The legalities should be much the same, but it's worth contacting your state's version of Consumer Affairs (I think that's Victoria) or Department of Consumer and Employment Protection (DOCEP: Western Australia) for advice.

    • ozgriff on 26/08/2015 - 11:18
      +1

      There are clauses supported in car dealership contracts that state the 2.5% of vehicle cost or $1,000 or whatever is cheaper. This appears pretty standard and is definitely different to retail.

      Even though it appears to be an attempt to make it even across the seller and buyer, It's a pretty easy one for the dealership to misuse and bend the situation as they have the money.

      To put it into perspective the dealer had a deliver by date for me and went well past it; they were still trying to claim the deposit and fee on a new car when I threatened to cancel the deal - IME, they will hold onto it for dear life. Not saying this is the case here as there's too many unknowns.

  • bibendum73au on 26/08/2015 - 01:18
    +2

    In WA generally you have 28 days to sort finance.

    I would like to see a scan of the entire back contract side of the OTP holding T7C's relation to finance approvals.

  • [Deactivated] on 26/08/2015 - 01:23
    +2

    Noway hes going to keep my $1000, take him to court

  • bargainslut on 26/08/2015 - 05:15
    +4

    I had a similar situation and contacted citizens advice. I wrote the dealer an email and it was all cleared up very quickly.

    Just give citizens advice a ring, they deal with these car issues on a daily basis and will give you definite answers to questions:)

    You will get the money back if you persevere. Contracts don't override consumer law!

  • garetz on 26/08/2015 - 14:57
    -1

    Seems like you learnt a very important life lesson Op, dont pay a deposit for any reason, if you want a car have your credit pre approved and buy it the same day. The fault is entirely yours for agreeing to the contract, sure stupid people are saved because they are protected by consumer law, but at least you learnt a lesson.

    • ozhunter on 26/08/2015 - 15:05

      , if you want a car have your credit pre approved

      That would be more convenient, but I wonder why the OP didn't go and get finance straight away after he had agreed to buy a car and knew he didn't have the money available. Two weeks is quite a long time, that would take several minutes to complete online.

      The whole thing sounds a little suss to me.

      • spackbace on 26/08/2015 - 15:10

        Added to that, when you're financing a car through the bank, they will send a tax invoice request to the dealership once finance is approved. Dealership then starts getting the car ready while customer finalises the final docs.

        Unless the car was put on a mortgage, which may take a while getting sorted (getting the house re-valued etc), normal car finance shouldn't take 2 weeks to get an answer.

        • ozhunter on 26/08/2015 - 21:53
          +1

          I now think change of mind or he found a better deal elsewhere is the reason he wants his deposit back.

          If this was in WA, there wouldn't be any cooling off period.

        • spackbace on 26/08/2015 - 21:59

          @ozhunter:

          If this was in WA, there wouldn't be any cooling off period.

          Yep thank god!

  • shaiguy on 26/08/2015 - 15:33
    +4

    Hi Uz1, another very big option is to call up the dealer's finance company (which generally is a large company). Advise the type of practices that the Dealer is utilising. Knowing how motor vehicle finance companies operate, they do not like this at all…

  • John Dough on 26/08/2015 - 20:34
    +3

    My 2c Don't mess around, start civil proceedings against the dealer, they will just refund you rather than pay legal costs (yours and theirs) on top of the refund.
    From what you have told us this is clear cut theft of your money, unless you signed something that states differently.
    Once you get your money, come back here and name the thieving bastards.

  • Naughtynaughten on 27/08/2015 - 00:11
    +3

    I'm confused why you have paid a deposit then gone through the finance process with them?
    I'm also confused over the fact it has taken two weeks to then secure financing through your own bank when approval is usually in a matter of hours or days at the most?
    If you had spoken to the dealer during this time of seeking approval and an arraignment was brokered then yes you have a case otherwise the dealer can seek a new purchaser of said vehicle as costs are still being occurred on his part including lot fees and financing through his provider.

  • Hirolol on 27/08/2015 - 11:07
    +1

    This reminds me of the guy that bought a house but the brickwork was dodgy and he didnt want to pay the remainder of the payment plan.
    What ever happened to that? I tried to search it but cant find it anywhere

    The op named and shamed the builder and they ended up commenting on the thread.

    • what on 27/08/2015 - 12:56
      +1

      Funny you should say that. I was also looking for that post yesterday wanting to know what happened in the end. I also remember that the builder commented and got so many negs.

      Could it be that the builder insisted that the post be removed?

      • McFly on 28/08/2015 - 08:34
        +1

        Could it be that the builder insisted that the post be removed?

        Yeah, I would assume they came to some kind of agreement (that included removing it.)

    • the4thzodiac on 27/08/2015 - 14:54
      +1

      Ditto! It does appear that it has been removed/hidden.

      • Hirolol on 29/08/2015 - 15:46
        +1

        Look at spendless' comment below!

    • DarkOz on 29/08/2015 - 07:48
      +1

      I remember that post. Maybe they kissed and made up on the condition that the post to be removed without further updates.

      • Hirolol on 29/08/2015 - 15:46
        +1

        Look at spendless' comment below!

        • DarkOz on 30/08/2015 - 17:43

          Thanks.

    • SpendLess on 29/08/2015 - 09:32
      +1

      that issue was resolved. Cant remember what they offered but the OP was happy with the out come. Zuccala Homes requested the post to be unpublished…i guess they didnt want to their name to be tainted lol even though it was resolved i remember they put the OP through alot of bs before it happened. Def not a builder id want to go with

      https://www.ozbargain.com.au/node/195412

      • what on 29/08/2015 - 13:26
        +2

        I was hoping hoping to see what Zuccala's total negs were. I think they may have reached a record.

        • cheesecactus on 29/08/2015 - 19:57
          +1

          -36 is whats shown on archive.org

          You can see all the comments and OP, but the images have all been removed.

      • Hirolol on 29/08/2015 - 15:45

        Wow thanks for that!
        I can sleep easier at night now, hehe.

        Yeh they dragged OP through hell… Poor guy, first house.
        Hope he is happy with the outcome though.

  • uz1 on 27/08/2015 - 15:00
    +2

    Scheduled a phone call with dealership manager for today, will let you all know the outcome.

    • hahaboy on 27/08/2015 - 19:02
      +4

      you better

      • bajillionaire on 28/08/2015 - 15:51

        You bet.

      • what on 28/08/2015 - 17:01

        You better, you better, you bet.

  • srhardy on 27/08/2015 - 15:28

    I think oyu have them by the balls so to speak as it has to be in writting, and so good luck today

  • Herbse on 27/08/2015 - 15:49
    +3

    Why even waste time talking to the people that work there. Just go straight through to ACCC or Fair Trade.
    Regardless of outcome, they receive a. Charge for the case being opened against them.

    Then proceed to leave educated, proper grammar negative feedback on all possible online feedback tools. Google plus page, Facebook page etc. So whenever their business is looked up, that pops up.

  • spackbace on 27/08/2015 - 20:41
    +4

    Ok, 2nd opinion gotten, and again this is WA.

    Dealership absolutely can't hold the deposit legally. Even if you decided to pull out, and they wanted to proceed with legal action for the 15 or 25% they can't hold the deposit. If they want to take you to court over costs, or anything like that, they still have to hand that deposit back.

  • [Deactivated] on 27/08/2015 - 21:56

    any updates OP?

  • jelko on 27/08/2015 - 21:58
    +1

    Ok, the time has come to name and shame this company. We all need to be aware of this dealership. Should you get your $1000 back, name and shame them anyway.

  • goraygo on 27/08/2015 - 22:03
    +1

    Don't just name and shame them now, do more. Go to their Facebook page and complain in a formal written manner (no sweating) and goto Hyundai Facebook and name and shame that dealer and make a complain to Hyundai about this dealer. They won't give a crap but you will achieve your name and shame in a proper manner. :)

  • cowiie on 28/08/2015 - 07:35
    +1

    Yes name and shame please

  • tap on 28/08/2015 - 09:25
    +1

    Stealership!

  • illz on 28/08/2015 - 10:30
    +2

    Updates?

  • Clear on 28/08/2015 - 12:20
    +5

    This is going to be one of those posts where the OP bails or comes back with the opposite of what everyone said.

    • spackbace on 28/08/2015 - 12:29
      +1

      Yep, waiting for them to clear it up… ;)

    • ilikeradiohead on 28/08/2015 - 12:41

      The suspense is killing me.

      • Clear on 28/08/2015 - 12:46

        At least it's not the safe…

        • happychild100 on 28/08/2015 - 14:10

          Don't you go bring up that safe now.. Keep that to reddit :P

        • Clear on 28/08/2015 - 14:19

          @happychild100: They had another last night. Found $50k and wine from like 100 years ago.

        • Peace Maker on 28/08/2015 - 15:43

          @Clear: Plenty of comments on there indicate it was faked. Some clever internet detectives out there.

        • happychild100 on 28/08/2015 - 15:52

          @Clear: Oh really, i'll have to find it.

        • Clear on 28/08/2015 - 16:38
          +1

          @Peace Maker: DONT RUIN IT FOR ME I WANNA BELIEVE

    • [Deactivated] on 28/08/2015 - 12:53

      Or possibly no longer updating us to avoid showing cracks in their original argument!

  • uz1 on 29/08/2015 - 09:37
    +19

    After speaking to various staff (Sales, Sales Manager, Assistant Dealership Manager etc) have finally come to an outcome. For an extra $485 I have picked up a 2015 new car rather than 2014 Demo.

    Overall the process and customer experience has been awful. I did not want to give my business to the dealership just due to their handling and reaction to the whole situation and holding my deposit as ransom. I agree I could have been more proactive in closing the deal but I had paid the deposit was committed to purchasing the vehicle, if I had backed out of the deal than by all means I should lose the deposit, but the original vehicle was no longer available. Common sense tells me the deal was void. Overall I found the behaviour of the dealer unethical and possibly illegal due to their unfair practise.

    To address some of the issue mentioned:

    Lesson learned! Don’t leave deposit - Buy then and there or come back when you have the cash.

    Was not informed in writing and any point and was only notified by voicemail that original car had been sold off.

    Reason for 2 weeks of obtain finances the dealer took 3-4days to return with their best quote, only than did I compared various financial institutes (novated lease, my personal bank, independent motor financial companies) before deciding on best option.

    As for buying an XR8, I am replacing an XR6 2003. Don’t drive very often and its really just cheap CBD run around.

    On personal level part I do feel that I should have pursed them from legal perspective fair trading & small case tribunal. In reality it wasn’t worth the time and effort of count attendances. It sucks that I had to hand over my cash to such a business.

    And the million dollar question the dealer in question is - Hyundai Windsor (Windsor Auto Group)

    • bobwokeup on 29/08/2015 - 10:26
      +1

      Thanks for the update OP…I have to agree with you it's not worth taking it to court if they were prepared to offer you a different car. If they tried to keep it then it would be worth taking the matter to court.

    • moo on 29/08/2015 - 10:54
      +5

      facepalm

    • longislandicetea on 29/08/2015 - 19:29

      Post something on their facebook page. Companies always try to make amends through their social media accounts

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