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WA Second hand bike purchase

Discussion in 'Politics, Laws, Government & Insurance' started by DustinsDad, Oct 8, 2016.

  1. Hi all - I'm new here, and I need some perhaps legal advise.

    A couple of months ago, I bought a 2007 BMW K1200S from a dealer. After a couple of days, I had to put a new battery on, and whilst starting up the bike after doing so I noticed a slight red flashing coming from the right indicator warning light. (My garage was rather dimly lit, or I wouldn't have seen it). I looked at the manual, and there should have been a red light flashing next to it, whilst the ABS did its start up checks. It should then go out once you ride off a few metres, if all is well.
    I assumed that the ABS warning light globe (actually marked "Brake Failure") has simply become dislodged. and needed putting back.
    Anyway, a couple of days ago I booked the bike in for a service, and I thought I'd sort out the ABS light rather than let BMW charge me $XXX to do it. It only took about 10 minutes to open up the instrument cluster, and find the problem. No globes - all LEDs. However, someone had pushed a piece of black foam rubber into the ABS warning light compartment, so that you couldn't see the fact that it was illuminated.
    I was gobsmacked, angry, incredulous etc etc.
    I started up the bike, and the light did what it was supposed to, flashing at first and then as I rode away it went out. For about a minute - then it came back on solid - "BRAKE FAILURE". I tried again, and it mostly just stays on solid.
    So I've been sold a bike with some sort of brake issue, which has been covered up. Not only that, but if a really serious brake issue had occurred whilst I was riding it, I wouldn't have known! This has potentially put my life (and that of my wife) at risk.
    Obviously, if the brake failure light had been illuminated when I bought the bike (well, actually it was, but if I could have SEEN it) I would never have bought the bike.
    Meanwhile, the dealer I have bought it from is sticking to the 'no warranty' approach. He says 'find out what it is, and we'll help you out' . However, he also said "I'm within my rights to tell you to f*ck off'. Charming man. Until I do find out what the issue is, I don't know how much help he'll be. If it's the ABS modulator pump, it could be up to $3k to fix.
    Basically, I just want to return the bike to the dealer and get my money back. If someone has done this to the bike a) it must surely be something expensive, or they would have just fixed it; and b) I don't think I want to be riding around on it - what else might they have done/hidden?

    Does anyone know the legal position with something like this? Surely there is something about being fit for purpose? Surely hiding a brake failure warning light is a criminal negligence issue? (I'm not saying the dealer did it, but he still sold it to m,e in that condition - surely this goes beyond warranty?

    Thanks for any input. The bike is booked in with BMW on Tuesday to find out what is actually wrong (hopefully). I'll let you know.

  2. Lots of tech info here but lots we'd need to know before commenting..

    At least..

    Which state?? Price-based warranty varies from state to state..
  3. Could be as simple as the previous owner disabled the abs and that could be as simple as removing a fuse or disconnecting wheel speed sensors.....lots of people find abs interference intrusive and annoying.
    • Like Like x 1
  4. #4 DustinsDad, Oct 8, 2016
    Last edited by a moderator: Oct 9, 2016
    Hi, I'm in Western Australia. I believe there is no warranty required for bikes over 7 years old.
    A warranty usually covers things that happen within a specific time period after purchase, but this is clearly a pre-existing issue that was covered up - not necessarily (in fact unlikely to be) by the dealer. I just need to know what if any recourse I have in this situation. Surely this can't just be allowed?

    Hi Mike - I like your thinking! I hope you're right. I guess I'll know on Tuesday.
  5. If the seller dealer were not a BMW dealer then they may not have known and the previous owner may have done this as Mike said. A BMW dealer will have plugged the bike in to the diagnostic system and gotten an error code so should have spotted this hack. You probably should have let the original dealer fix the issue as that is the first avenue of redress. Having brought the BMW dealer in now sort of muddies the water a bit. Consumer Law says the original dealer must be given first option for repair.

    You are right that although a warranty is not required under WA law you are still protected under Federal Consumer Law. You could argue that is constitutes a Major Problem i.e from their website

    What is a major problem?

    A product or good has a major problem when:

    • it has a problem that would have stopped someone from buying it if they’d known about it
    • it is unsafe
    • it is significantly different from the sample or description
    • it doesn’t do what the business said it would, or what you asked for and can’t easily be fixed.

    A service has a major problem when:

    • it has a problem that would have stopped someone from buying it if they’d known about it
    • it is substantially unfit for its common purpose and can’t easily be fixed within a reasonable time
    • it does not meet the specific purpose you asked for and cannot easily be fixed within a reasonable time
    • it creates an unsafe situation.
  6. Three known common causes for the Brake Failure light on the ABS II BMW's;

    1 Broken or crimped cable from wheel sensor to ABS module.
    2 Insufficient power to trigger the ABS module. Common on older R series where the alternator belt has worn and slipping. Not common on K bikes.
    3 ABS Module has failed, unfortunately this is the most common and is usually due to the system not being correctly flushed and bled annually, these systems are supposedly non re buildable but there is a mob in the US rebuilding them, google Module Masters, still not that cheap, ABS module alone is about the 3k mark then labour etc and it takes at least 4 litres of brake fluid to do a proper flush on these. If they are not religiously flushed properly annually at minimum then crud builds up in the galleries and the unit eventually fails.

    If this was bought through a BMW dealer then they would have definitely been aware of it, a non BMW dealer may not have, as stated above there should be some legal option to pursue.
  7. Thanks guys,
    It was bought from a non-BMW dealer. I had already booked it in for a service with the BMW dealer before discovering the cover up. The non BMW dealer seems happy for me to get BMW to diagnose it. Not sure the non BMW dealer would be able to really anyway.
    Re other replies - I've now found that the bike doesn't have physical fuses, so the really optimistic outcome is pretty unlikely. I'm thinking the $3k problem, as I'm sure most people would have fixed something cheap/easy rather than resorting to what must surely be a criminal act of deception.
    Thanks Chris - I reckon this would definitely come under the 'wouldn't have bought it if I'd known' category! But does that make the Dealer responsible, even if he was unaware? I personally think he should bear responsibility, but he didn't appear to share my view!
    Tomorrow - morning of truth - provided BMW are actually able to identify the issue!
  8. The dealer being unaware probably lessons any penalties but I don't think it would get them off the hook. A reasonable response would be a shared cost of repairs for that part of the service alone. On the other hand if it turns out to be an expensive part the original dealer would have fixed it and priced the bike accordingly. A bit murky. It may be worth contacting the ACCC, they will give general advice.

    Contact the ACCC
  9. The more important question is who did the road worthy ?
    • Agree Agree x 1
  10. A few responses:-

    We don't have RWC in WA. As long as the rego remains current, a vehicle only gets inspected if Mr Plod says so for a specific fault.

    BMW took about 10 mins this morning to do the diagnostic. Definitely the ABS pump. That'll be $3,400 please.

    I got a response from Consumer protection, which said they can't advise whether i would be eligible for a refund, but it 'may' be covered by Australian Consumer Law. Not much help really.

    Yes - I have also emailed ACCC - I really think the 'Major Problem' angle is my best bet. No response as yet - they reckon on replying within 15 days.....

    I don't think I can wait that long to go back to the dealer with the quote. I have a premonition that his response will be something along the lines of -"The brakes work ok - why do you need ABS?"
  11. A mate of mine had a similar experience with a second hand beemer. In his case it was the main board for the system that cost him a similar amount of money. It wasn't concealed though, but it did fail within a couple of months of buying the bike. Took it from being fair value to expensive in a single component, but the dealer did try to do the right thing and installed it free even though he didn't buy the bike from them. He still had to fork out for the part though. I wish you luck with it. It's one of those things that you really want a lawyer for, but the fees very quickly add up to more than the part.
  12. bugga.....commiserations all round.

    Checked fleabay (international), OS dealer prices, wreckers...3.4k hurts a lot

    you know what bmw stands for ....... Bavarian Money Waster .....

    ..........sorry, couldn't help it
  13. Ok - good news! The dealer didn't really respond to my emailing him the quote, so I went back to BMW and asked the specifics of the failure. They told me it was diagnosed as 'Low voltage to pump motor power supply' So I did a bit of research and found that this particular fault is usually caused by the brushes sticking in the motor, and can actually be fixed. I let the dealer know this, and he was overjoyed!

    'Great' he said. 'Good news! Let me know how you go'.

    Hmmmn. I pointed out that I was just giving him a cheaper option, as i realised he wouldn't really enjoy stumping up $3,400. He went quiet.

    More research. A company in the good ole US of A (in a place called Moscow???) fixes them for US$250. I thought well, if the dealer will take it off and put it back, I could probably stump up the $250, depending on postage costs. So I emailed them to see if they would accept a pump from Oz, and told the dealer I had done so, and was waiting on shipping costs.

    About an hour later, the dealer emailed me back. Apparently, a guy who used to work for them, but now has his own garage, only repairs BMW these days, and has done a few modulator pumps before - hurray! So, he continued, if I took the bike to him next week, he would fix it and my dealer would pay him!

    With the slight caveat of requiring at least some sort of guarantee on the work, I have accepted this generous offer.

    I'll keep you posted...
    • Informative Informative x 3
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