Another Caveat Emptor Thread - with a slight twist

[chriswg]

I have read all the threads, the cars being sold then breaking down on the driveway or buyers having to leg it across a motorway because their new purchase broke down in the fast lane. I also read all the replies - buyer beware, caveat emptor, sod them - it's their problem now, not yours...

Well my problem is similar, but is a little different. A week ago I purchased an Audi S5 for over 17 grand from a private seller. I took it out for a test drive and all seemed fine with the car. We haggled a bit and settled on a price we were both happy with. Last Saturday I went to pick it up, transferred the money and got the usual 'sold as seen' receipt from the owner.

When I was nearly home I hear a very loud warning alarm and the center console flashes up with "Gearbox Malfunction". The car loses all power for a minute before sorting itself out and continuing as normal - for a few minutes. It happened 3 further times before I managed to limp onto the driveway feeling pretty shaken up. Thankfully it hadn't happened in the fast lane of the A3 as the weather was pretty poor with heavy rain and bad visibility that day!

So far, so 'caveat emptor' I can hear you all saying. However, modern cars are a lot more intelligent than old ones. I spoke to a mechanic who worked for Audi for 16 years and he was in my town that evening. He popped round and plugged his laptop into the car to check out the error codes. It's not an uncommon problem for this year of cars with Audi having a service bulletin out for it. Essentially the whole mechatronic unit needs to be replaced at a cost of circa £4k. The car believes the clutch is about to fail so it cuts all torque from the engine in order to protect the clutch - not great when you are driving.

Anyway, I test drove the car on the 1st September, and the problem had happened 4 times on the way home. The error report on the car's computer said it has happened a total of 14 times with the first occurrence happening on the 18th August. Yep, the guy had the error 10 times before he sold it knowing how dangerous a problem it can be. He was even happy to let me drive off on along drive with my young kids in the car! I specifically asked him during the test drive if he'd had any other problems with it and he said no.

Hopefully we can agree the guy is a scumbag, but do I have any legal rights? In the advert he described the car as 'running beautifully' which it turns out was a lie - but is maybe a bit subjective. I had someone with my on the test drive that heard him say it had no problems but I guess that is our word against his - and may not count for anything anyway. But I guess the biggest hope I have is that the car was sold in an unroadworthy condition that I can prove he was aware of prior to the sale.

Would be good to hear some thoughts.

[chriswg]

The vendor's reply was, "Yeah well, they are expensive car's to maintain. You have no rights as a private car buyer. I suggest you pay to get it fixed or get rid of it yourself".

Obviously as a I have morals I couldn't even consider selling a car with such a horrible problem.

It's a 60 plate with 56k on the clock so really shouldn't be failing!

And yeah, in future I'd be taking the dude with the laptop with me, although a 'smart' vendor could easily have the error codes cleared before a potential buyer comes round. It also flagged up an error with the door sensors, you are supposed to be able to lock the car by touching a sensor on the handle when you get out, but that doesn't work either.

[chriswg]

Jefferson Steelflex said:

you have some evidence that the error had occurred while he owned the car and (I assume) that said error had been cleared using VAGCom? The difficulty will be proving he knew about it in the way you describe it - i.e. that it causes the car to go into limp mode etc. but why not spend a few hundred calling his bluff?

The error codes were still on there, they hadn't been cleared at all. Hoping this link works?



The problem had clearly happened to him multiple times. There is a chance his missus was driving it at the time but I'm fairly sure the first thing she would have done is pulled over and called him. It's an instant loss of power with a very loud beep coming from the dashboard. It's not possible to miss.

[chriswg]

Thanks for the comments guys.

I have booked it in for a transmission service next week with the independent Audi mechanic guy. Looking at the Audi threads that deal with this problem it looks like a low chance that it will fix it, but worth trying in the first case. In most instances the PCB develops a fault, or a sensor rail inside the mechatronic unit fail. Both are big jobs at £3k and £4k respectively.

I'll double check when I get home but I think I remember seeing the transmission oil and filter change boxes ticked in the service record book at 48k and 55k miles. I now suspect that they weren't actually done but the (non-Audi) garage that did the service ticked the boxes anyway. I'll ask my mechanic to confirm if they have been done recently. If not it's another misconception on the sale.

I'll look up some of the legal templates suggested and send one to him and see what he says. I've asked him for an email address but he's not given it to me yet.

If I need a solicitor can anyone recommend anyone from personal experience?

[chriswg]

s3fella said:

OP, why did you not check it out properly before buying it, if the £4k is a lot to you (it is to me) £17k is shed loads, more that any car I've ever bought! And a mere google of "Audi S5 problems" tells you all you need to know that this is sadly not uncommon.

It's £10k more than I've ever spent on a car too. I came into a bit of money and I wanted to use it for something nice so I really stretched hard and managed to get the money together (I need to sell my 350z pretty quickly). I certainly don't have another few grand lying around to get it repaired. At the moment it's sat on the driveway as a very expensive ornament.

I've only ever bought cars privately for around the £3k - £4k mark and never had any major problems. I guess I naively thought buying a reasonably new car for a lot of money would buy some reliability. I also clearly have too much faith in humanity. If this was the other way round I wouldn't dream of selling it in this condition at the expense of ripping someone else off.

The guy I took with me was a mechanic, it was him who introduced me to the Audi guy. If I'd known the Audi guy beforehand I'd have paid him to come instead.

[chriswg]

Lurking Lawyer said:

OP, it's not cut and dried but it's worth exploring further. A court would want expert evidence on what the datalogging evidence actually means and whether those error messages would have had to have been displayed on the dash.

It's worth checking your home contents insurance to see whether it includes legal expenses insurance and, if it does, give your insurer a call to see whether it covers a misrepresentation claim.

Funnily enough I just finished reading up about a similar case that all hinged on the reliability of the expert witness. I'm hoping this mechanic would be sufficient as he is impartial and worked for Audi as a senior mechanic for 16 years.

Great shout on the home insurance cover, I'll look into that now. Even if it doesn't, I'll be wanting to go to court to put my evidence forward.

A couple of people have mentioned getting cheaper quote's for the repair. A lot depends on the inspection next week during the service. If the mechatronic unit needs to be replaced, they need to be custom ordered from Germany and set up to match my exact car. That is going to cost £1.2k + VAT (£1,440). There is then a whole load of smaller parts that will need to be replaced as part of the process, plus approximately 20 hours of labour. £3k is possible, but it's not going to be any less unless I can get some serious mates rates on the labour part.

If it's 'just' the PCB that needs replacing then it could be half that. But, if I pay £1500 to replace the PCB and it turns out the mechatronic needs replacing after all that is £1500 down the drain and I'll still need to pay the £3k-£4k.

[chriswg]

General Fluff said:

You haven't dealt with the most important part of Lurking Lawyer's post. Seller will claim he never felt a fault, heard a beep, saw a message on the dash, etc. Does your ECU evidence absolutely prove otherwise?

I'm certain that it does flash up with the error and loud alarm on the dashboard every time it happens. As I mentioned it happened 4 times to me and each time it scared the cr@p out of me.

[chriswg]

andymc said:

what would WBAC give out of interest?

13.5k!

[chriswg]

C70R said:

In other news, do we know what the OP is actually looking for? I only ask because SCC is £10k maximum.

I'm just looking for the price of the repair.

If this gearbox service fixes the problem (unlikely) then I won't bother with a legal case.

If the PCB or mechatronic unit needs replacing then I will be looking for between £2.5k and £4k to cover the cost of the replacement parts and labour.

I have already suggested the seller can get his own quote from his own preferred garage if he wants (no reply). I'll also check out ecutesting and the mentioned garage in Bristol to hear their thoughts.

I would also probably (grudgingly) accept an offer to cover half of the costs at mediation if it's on the table.

[chriswg]

janesmith1950 said:

Has he got any money and or will he comply with judgment? Hollow victories, wins without rewards.

He had a brand new Evoque sitting on the driveway and at least £17k in his bank account that I paid him so I would think he can afford to pay.

I'm seriosuly considering the complete gearbox replacement via the Bristol garage mentioned earlier. £2.5k for a more reliable (post 2012) refurbished box is quite appealing and probably cheaper than just replacing the mechatronic unit or PCB.

[chriswg]

POORCARDEALER said:

What would you be willing to accept off him to settle this and avoid court?

Depends on how much hassle I'd been through up to that point.

But I think I would lick my wounds and walk away if he were to offer to pay half of the repair costs i.e. £1,250.

I would still feel very hard done by, but I could do without the stress if possible.

[chriswg]

Wow, first solicitor quoting £400+VAT to send a letter then total legal costs for a court case of £10k - £15k!

[chriswg]

I just managed to get hold of the original advert from Autotrader who were brilliant and happy to help.

Dark BLUE S5 Convertible. Dunlop Sport Tyres VGC, Full Service History, Extras include, Advanced DVD Sat-Nav , Bang & Olufsen upgraded CD stereo, Electric seats, Heated seats front and rear, Audi Drive Select, Paddle shift, Bluetooth telephone connection, Bluetooth Audio, Parking sensors and rear Camera, Acoustic hood, Wind deflector included, Auto lights, Auto wipers, Climate control, All handbooks, V5 Document and spare key included, key opens hood. 3 owners, Next MOT and service April 2017, Full service history, Electric windows, Air conditioning, Advanced 3D Satellite navigation, Parking aid, Black and White Leather trim, Height adjustable driver's seat, Height adjustable passenger seat, Folding rear seats, Child seat points (Isofix system), Sports seats, Metallic paint, 20" Alloy Wheels, Spare wheel (Space-saver), Power steering, Steering wheel rake adjustment, Steering wheel reach adjustment, Cruise control, Traction control, Central locking, Alarm, Immobiliser, Driver's airbags, Side airbags, Passenger airbags. , Excellent condition throughout. APR software modified for over 1 year, runs beautifully. MUST DRIVE!, 3 owners, Air conditioning, Parking aid, DVD, MP3 player, Leather trim, Heated seats, Height adjustable driver's seat, Height adjustable passenger seat, Sports seats, Alloy wheels, Cruise control, Traction control, Central locking, Immobiliser, Driver's airbags, Side airbags, Passenger airbags. BLUE

One other thing that I've just noticed is that I don't think I have Audi Drive Select. That is the button on the central console where you can switch between dynamic / comfort / sport modes right? I've just double checked and there are no buttons there.

I guess this is the key sentence:

"Excellent condition throughout. APR software modified for over 1 year, runs beautifully. MUST DRIVE!"

Hopefully I can prove that this is a blatant misrepresentation of the car, and prove that he knew it.

[chriswg]

Vaud said:

I'd be inclined to agree. Worth googling his email address and mobile number, etc

Alas he's an IT Consultant. I can't find any sign that he does anything else on the side.

The first recorded ECU warning was on the 18th August, I only started hunting on Autotrader around the 23rd and it was live then. I don't know since when though and the guy at Autotrader couldn't confirm a listed date either. There is also the problem that anyone trying to cover it up could clear down the fault codes with a VAGcom. He might have been living with the problem for months, or it may have manifested for the first time after he listed the car.

Either way, it's a bit of a stretch to describe the car as "Excellent condition throughout. APR software modified for over 1 year, runs beautifully. MUST DRIVE!" knowing what an awful fault was happening.

I have now instructed a different solicitor to get the ball rolling with a legal letter outlining the issues and what we expect for a resolution as well as next escalation steps.

If it goes to court the solicitor said we have a good chance of winning as a misrepresentation case and having most of the legal costs awarded.

[chriswg]

_dobbo_ said:

You've had a lot of advice here that small claims can be dealt with yourself - I think that's worth considering.

I've been thinking about that a lot and I still don't know for sure which road I will go down. If I decide to go down the legal route and I can show there is a reasonable chance that costs will be awarded, that is another incentive for the seller to deal before the case.

If I just represent myself where is the incentive for the seller to try and negotiate a settlement? He's confident his 'sold as seen' receipt will cover him, and he's probably willing to risk it for a £2.5k settlement (that he probably knows he should be paying). If I add in the prospect of an additional £15k of legal bills he has a more serious decision to make.

[chriswg]

Burwood said:

and just another thought-where was the car serviced previously. Tried calling that garage to ask if they diagnosed anything of interest?

I gave them a call straight away in the hope they would say oh yeah, he brought it to us a few weeks ago and we told him it was knackered. Sadly they didn't.

I suspect the order of events was:

- Gears started feeling a bit clunky - especially dropping to 1st when coming to a standstill.
- Googles problem - uh oh, better sell it quickly.
- Sticks advert on Autotrader.
- Car gets worse, gearbox malfunction warnings start coming.
- I take it for a test drive, no warnings / gearbox feels okay.
- I make an offer which is accepted, he thanks his lucky stars and laughs all the way to the bank.
- I get numerous warnings on the way home so contact the seller.
- Sorry mate, sold as seen. Fix it or get rid like I did.

[chriswg]

eldar said:

One thing puzzles me about the fault condition. It produced errors stored in the ECU.

Was a warning produced in the car - if so what status, red or yellow, and was a warning message displayed as well? How is the visible element reset - does it take manual intervention or just go away with an engine restart? What does the handbook say?

Bottom line, would the vendor know that the fault was there, or could it be missed, misinterpreted or considered trivial?

It's kinda hard to miss, there is a loud warning noise and the dashboard displays as follows (taken from an identical car):



While the error is up the car goes into limp mode and you lose speed and can't put any power through the transmission. After between a few seconds and a minute the error goes away and you can continue normally. It would appear that as the problem gets worse the error stays longer and longer but will usually reset if you stop the engine for a few minutes and restart.

[chriswg]

matjk said:

"My wife had been using the car, she never mentioned it!"

If it happened to my wife she'd pull over, have a cry, then call me to come and collect her!

She's already pretty adamant she is never going to drive it incase the problem comes back. The insurance was a lot cheaper with her on the policy though.

[chriswg]

The car was in at the local garage for further investigation yesterday. He has quoted me £830 all in for parts and labour to replace the PCB as per an Audi technical service bulletin. Also interesting was that he called his mate who still works for Audi on the gearboxes. He told him they generally have a 95% success rate with this fix for this problem.

My fingers are firmly crossed, it's booked in for 11th October. I can't help but feel I'm usually the 5% guy!

I've texted the quote to the seller and said we can either sort this out now, at mediation or at small claims court. Over to him now.

I've also instructed my solicitor to draft and send the first letter outlining our intent. Hopefully it will have the desired result and get discussions started.

[chriswg]

C70R said:

So you're going to ask the previous owner for £830? How much has the solicitor's letter cost you so far?

£180.

I'm going to ask for £830 if that does indeed fix it. There is still the possibility it might need the £2,500 treatment.

If he were to offer me the £830 right now without needing to go any further I would probably take it and take the risk myself that it might not fix the problem. I'd sign a letter saying I'm happy with the resolution and no further action will be taken.

If not, by the time it goes to small claims court we will know for sure if it has fixed it or not.