Retired doctor wins 10-year legal battle over ‘lemon’ luxury SUV

A top luxury car dealership in Brisbane has been ordered to refund almost $60,000 plus a decade of interest to the buyers of a car which was found to be “unsafe and unroadworthy”.

Dr John Glascott.

A top luxury car dealership in Brisbane has been ordered to pay $59,073 plus 10 years interest to the buyers of a demonstrator car which was found to be an “unsafe and unroadworthy” lemon.

Mercedes-Benz Australia/Pacific Pty Ltd, named in the contract as car dealership Mercedes-Benz Brisbane, and finance provider Mercedes-Benz Financial Services Australia Pty Ltd must pay retired Byron Bay doctor John Ernest Glascott and Maryanne Ruth Glascott $59,073 plus 10 years interest as compensation for the loss of use of their ML350 since 3 May 2014.

The couple must return the car which they have not driven on a public road since 3 May 2014 after the car “dangerously applied its own brakes, causing it to veer or stop abruptly without any apparent hazard” between 2011 and 2014.

In his decision handed down on August 8, following a hearing in October last year, Cairns District Court Judge Dean Morzone concluded the luxury SUV has an “insoluble braking problem that renders the car dangerously unsafe and unroadworthy to drive”.

The car was stored in a shed on Dr Glascott’s property at Oak Beach near Cairns and later in an enclosed shed on his farm in Bangalow in New South Wales, after they sold the Oak

Beach property, the decision states.

A similar model of Mercedes-Benz ML350 CDI AMG SUV wagon, to the one that the Glascott’s leased.

When it was inspected as part of the legal stoush it was found to contain dead mice, wasps nests and spiders, and had a “pungent, musty smell” according to mechanical engineer Robert Casey.

The Glascotts leased the car from Mercedes-Benz Australia/Pacific Pty Ltd – named in the contract as Mercedes-Benz Brisbane – on 2 December 2010.

Mercedes-Benz Australia/Pacific Pty Ltd is wholly owned by global car making giant Mercedes-Benz Group AG.

The couple agreed to pay 60 instalments of $2,065.97 from 2 January 2011, with an option to buy the car after five years for $45,100.

The total cost was due to be $169,058 but this was reduced to $124,827 after the Glascotts traded in an old car, however they made total lease payments of $118,986 due to the brake faults.

Judge Morzone also ruled that Mercedes-Benz Australia/Pacific Pty Ltd was not negligent as contended by the Glascott’s.

“Even though it is arguable that it negligently supplied a car that was not new and had done more than 10 km, it was not otherwise in breach of any duty to cause the harm claimed,” he ruled.

The Glascotts sued the car finance company and Brisbane car dealership for damages, arguing that the car, delivered with 5744 km on the clock, was not “new” and its spontaneous braking rendered it of unmerchantable quality, unsafe, and unroadworthy.

Judge Morzone found the car so defective that it was not of merchantable quality, fit for the purpose supplied, roadworthy, or safe to drive which was in breach of the hire purchase agreement.

“Between March 2011 and May 2014, the car had seven hazardous incidents of uncommanded autonomous braking. In each incident, the car manifested unpredictable, uncontrolled braking behaviour without any driver intervention or detectable impending external danger. Multiple attempts to replace the brake sensory system in response to each event have failed to sustain a safe and reliable rectification. Experts have not identified the root cause of the car’s intolerable manifestly unsafe behaviour,” Judge Morzone stated.

He preferred Dr Glascott’s evidence at trial that he prepared the car for Mercedes to pick it up from his home at least three times, but each time they cancelled at the last moment.

“It seems to me that the first defendant has not been ready, willing and able to perform their obligations under the agreement,” Judge Morzone said of Mercedes-Benz’s claim they were ready to inspect, service and repair the car while it was in storage at the Glascott’s.