The ACCC has finally concluded their investigation into Land Rover's customer response relating to the 1.8Lt K-series Freelander. Unfortunately for all concerned, although the ACCC has reached the conclusion that Land Rover's response is unsatisfactory, they are unable to pursue the matter any further. I have provided the correspondence for the benefit of all Freelander victims. I would however encourage all Freelander K-series victims to contact the ACCC in the hope that this issue will be re-visited. Their conclusion was reached based on 30 complaints, however they have recently advised that their complaint file on this issue is now well over 100.

Australian Competition & Consumer Commission

14 December 2005

Mr Steven Morten

General Manager

Land Rover Australia Pty Ltd 65 Epping Road North Ryde NSW 2113

Dear Mr Morten

Complaint to the ACCC re Land Rover Warranty Conditions

I refer to the letter dated 23 November 2005, written by Brad Hackett, Director - Aftersales, Premier Automotive Group Australia, on behalf of Land Rover Australia (Land Rover), received at the Brisbane Office of the Australian Competition and Consumer Commission (the ACCC). 

As you will know from our letter to Land Rover dated 13 October 2005, the ACCC has received what we consider to be a large number of similar complaints concerning perceived problems with the head gasket in Freelander vehicles. When the ACCC first wrote to Land Rover on 20 July 2005 and 5 September 2005, expressing concerns about the number of complaints that it had received, we believed, and continue to believe, based on the information provided to Land Rover, that not only should Land Rover make attempts to investigate the specific complaints highlighted by the ACCC, Land Rover should also make efforts to ascertain the overall prevalence of this complaint within its own organisation and agencies.

The ACCC is disappointed with the view expressed by Land Rover that there is no evidence of an 'inherent mechanical defect' despite the number of complaints made to the ACCC; the considerable discussions of this issue on the internet; an acknowledgement that dealer received complaints cannot be researched, and that Land Rover Australia has been unable to consolidate consumer complaints made to dealers, with PAGA/Land Rover records.

The ACCC had hoped that Land Rover would have made a more concerted effort to address what we think is an existing and continuing problem faced by consumers who own these vehicles. 

As you would be aware Part V, Division 2 of the Trade Practices Act 1974 (the Act) implies into all consumer contracts certain non-excludable conditions and warranties. 

Specifically, section 74B of the Act relates to actions in respect of unsuitable goods. 

(1) WT'here:

(a) a corporation. in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods_. for re-supply:

(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer.

(c) the goods are acquired by the consumer for• a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted:

(d) the goody are not reasonably f t, for that purpose, whether or not that is a

purpose, for which such goods are commonly supplied; and

(e) the consumer or a person who acquires the goods from. or derives title to the

goods through or under, the consumer suffers loss or damage by reason that

the goods are not reasonabl y fit, for that purpose: 

the corporation is liable to compensate the consumer or that other person, for loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

Further, section 74D relates to action in respect of goods of unmerchantable quality.

(1)

Where:

(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply: (b) a person (whether or not the person who acquired the goods, ft•om the corporation) supplies the goods (otherwise than by way ofsale by auction)

to a consumer:

(c) the goods are not of merchantable quality: and

(d) the consumer or a person who acquires the goods_.from, or derives title to

the goods through or under, the consumer suffers loss or damage by

reason that the goods are not of merchantable quality: 

the corporation is liable to compensate the consumer or that other person, for loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.

It should be noted that this section does not limit the right to institute proceedings against the manufacturer to the first retail purchaser of the goods. Any person who derives title to the goods through or under that purchaser may also institute proceedings. 

Further, section 74J provides that proceedings must be commenced within three years of the date on which the consumer first became aware that the goods were not fit for the purpose or not of merchantable quality, but in any event within 10 years of the date on which the retail sale of the goods took place. 

Where a breach occurs of any condition or warranty, the action to be instituted by the consumer is an action for breach of contract, not an action for breach of the Act. This means that in circumstances where the ACCC believes that a breach of these provisions may have occurred, it is unable to take action itself although that option remains open to the consumer. 

The ACCC will now advise each of the complainants that while it has raised their concerns with Land Rover; it appears that Land Rover does not believe it has any further responsibilities towards the vehicles. Accordingly, although the ACCC is not able to take any formal action, those consumers can consider taking their own action or some kind of joint action if they believe there are grounds to do so. 

It is disconcerting that a large number of very dissatisfied customers have expressed their concerns to the ACCC in relation to the manner that Land Rover has dealt with this issue. We intend to and have an obligation to provide the various complainants with an outline of our views and it is for this reason that we will provide those complainants in relation to this matter, with a copy of this letter. Should you have any questions about the information in this letter please do not hesitate to contact Emma Sampson on (07) 3835 4666. 

Yours sincerely