The burden of proof

The burden of proof on the consumer in order for them to exercise their rights varies depending on how long they have been in possession of the vehicle:

Within 6 months from date of delivery - It is presumed the defect was there at the time of delivery regardless of the remedy they choose to pursue, unless the trader can prove otherwise.

After 6 months of date of delivery (and up to 6 years) – The consumer has to prove the defect was there at the time of delivery. In some instances it would be recognised that defects take time to appear and in these cases it would be presumed that there was an underlying hidden defect at that time.

Considerations under a tripartite arrangement

If the vehicle is leased or purchased on finance the finance provider will have a legal duty to respond to the consumer if there is a defect with the vehicle. However, in this situation the consumer is likely to be in contact with both the finance provider and dealership. It is therefore good practice to make sure that:

  1. There are policies and processes in place for evidencing the consumer's decision, managing a repair process and obtaining feedback.
  2. The dealer group and finance provider are jointly aware of how each other responds and their roles in assisting consumers under the CRA. It would be prudent for this to be reflected in any agreements between the two.