Disputes with a mechanic are aggravating, and if parties manage the dispute ineffectively, it can also be expensive to resolve. However, parties do not need to resort to litigation. We set out below the various channels available to a consumer to amicably settle any issues with their mechanic.
Depending on the nature of your dispute, you may have statutory remedies under the Australian Consumer Law (‘ACL’). The ACL applies to services provided that:
- Cost less than $40,000; and
- Total more than $40,000 but which are used for household and personal purposes.
The ACL mandates that service providers must:
- Use acceptable care and skill and have the requisite technical knowledge;
- Work so as to prevent loss and damage;
- Be fit for purpose or deliver the results upon which the consumer and service provider agreed;
- Provide the service within a reasonable time in the absence of a fixed contractual date.
If you believe that you have statutory remedies under the ACL, speak with your mechanic. Tell them why you believe this to be so and listen to their response. You can also mention any other warranties on parts or repairs.
Discuss the Issue with Your Mechanic
In any event, your first step should be to discuss any issues with the mechanic and carefully consider their response. Consumers should also take detailed notes of the conversation – when it happened and what each party said. You could also choose to have another qualified mechanic make an independent report on their vehicle’s condition. Such a report may provide some unbiased information to help both parties rethink their positions. However, consumers would have to pay a fee for the report.
Check the Service Agreement
Consumers should also read their mechanic’s service agreement. This agreement outlines the services their mechanic provides and the terms and conditions on which they provide them. It is possible that the agreement mandates a particular mechanism for dealing with disputes. This mechanism is typically in the form of alternative dispute resolution such as mediation or conciliation. If the agreement does provide for this, both parties must undergo this process to try to resolve the dispute before taking any other steps.
Alternative Dispute Resolution
If the agreement does not provide for any alternative dispute resolution, the parties can try it independently. Many state and territory governments have agencies that provide dispute resolution services. For example in NSW both the Small Business Commissioner and NSW Fair Trading offer mediation services.
Each party participating in an alternative dispute resolution process needs to have all relevant documents about the dispute including invoices, receipts, sale contracts, prescribed forms, repair estimates, quotes, job cards, correspondence or technical reports. They must also be willing to listen to the other party and negotiate.
If the dispute remains unresolved, a party can choose to make an application in their appropriate state or territory administrative body. For example, in NSW a party would apply to the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT). All applications require payment of a fee. NCAT’s jurisdictional limit is usually $40,000.00, and a person must apply within three years of the cause of action or ten years from the date of supply of a good or service. However, if a dispute concerns a new car or a motor dealer unfair contract, orders are possible for any amount.
Within six weeks of application, NCAT will provide both parties with a notice of hearing. When the parties arrive for hearing, they may be asked to undergo conciliation. If they resolve their dispute in conciliation, a Tribunal Member will make their agreement a binding consent order. If they cannot, they proceed to a hearing. At the hearing, the Tribunal Member will listen to and evaluate the evidence of both parties. The Member then makes a decision and issues binding and legally enforceable orders. Both parties receive a copy of the Orders as well as reasons for the Member’s decision.
Parties can represent themselves at the tribunal. If they do, they must pay only their costs of preparation. At NCAT, the general rule is that parties pay their costs. It is unlikely that a Tribunal Member will require a party to pay the other parties’ costs of preparing for the hearing. Tribunal Members typically only make a costs order in some instances including when a party conducts the proceedings so as to disadvantage the other (for example, through vexatious conduct) or when a party makes a claim with no sustainable basis in law or fact.
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