Rules on Refunds in NSW? Anyone know?
Feb 3rd 2011, 4:40 am
#106
Crazy Cat Lady
Joined: Apr 2004
Posts: 65,493
Re: Rules on Refunds in NSW? Anyone know?
And so it goes.... we were back in today at Fair Trading in a room with our suppliers. We love this whole legal process. Really. Can't think of anything better I'd rather be doing than spending all day talking with magistrates.
So, here's the process for anyone wondering what will happen.
We go into Fair Trading and sit in our room. Magistrate arrives.
Magistrate offers us a chance to sit with a mediator in another room (as we'd had no mediator in the first session)
Mediator asks us what it's all about... are we willing to back down - we say 'no' and so we go back into the other room.
So we presented our case.
Then the opposition had a few minutes to 'cross examine' which didn't go very well as they had nothing to ask us.
Then they presented their case.
We asked them a few questions about why they'd increased the price and not told us etc.
There was some further discussion and in that, they agreed that the initial contract was for 3 weeks delivery and that we were right about that.
They said that we had delayed them by me 'not answering my phone'... and that they had been ill, though they didn't communicate that to us at any point.
I had print outs of my texts to them, plus some Facebook contact which they'd responded to regarding the product, which showed they had delayed beyond the three weeks.
At the end of it, we were given 5 mins to surmise each.
At the end of their summation, he said 'I'd be quite happy to give the deposit back if we sell the product'...
At this point we couldn't quite believe he was making an offer to us, because the place to do this was in the mediation beforehand.
We couldn't address it then because our session had finished...
So we got up and left.
We were told we wouldn't have a decision today because the magistrate would need an hour to go through the thing and he already had too many cases.
When I got back home, we emailed the supplier asking if his statement was an offer and if it was, then this might form the basis for a negotiation to solve the issue. We basically left the window open for them to continue talking but once the magistrate has made a decision, then that's binding. I haven't yet had any email back from the supplier. It might be in their interests to respond quickly.
So, it appears, without all the other crap to confuse the issue, is that there's a breach of contract.
The contract was for 3 weeks. It was breached by them and we were within our rights to cancel.
Saying that, they say that they did explain there were delays so ... you know.
I'll let you know when there's an outcome.
So, here's the process for anyone wondering what will happen.
We go into Fair Trading and sit in our room. Magistrate arrives.
Magistrate offers us a chance to sit with a mediator in another room (as we'd had no mediator in the first session)
Mediator asks us what it's all about... are we willing to back down - we say 'no' and so we go back into the other room.
So we presented our case.
Then the opposition had a few minutes to 'cross examine' which didn't go very well as they had nothing to ask us.
Then they presented their case.
We asked them a few questions about why they'd increased the price and not told us etc.
There was some further discussion and in that, they agreed that the initial contract was for 3 weeks delivery and that we were right about that.
They said that we had delayed them by me 'not answering my phone'... and that they had been ill, though they didn't communicate that to us at any point.
I had print outs of my texts to them, plus some Facebook contact which they'd responded to regarding the product, which showed they had delayed beyond the three weeks.
At the end of it, we were given 5 mins to surmise each.
At the end of their summation, he said 'I'd be quite happy to give the deposit back if we sell the product'...
At this point we couldn't quite believe he was making an offer to us, because the place to do this was in the mediation beforehand.
We couldn't address it then because our session had finished...
So we got up and left.
We were told we wouldn't have a decision today because the magistrate would need an hour to go through the thing and he already had too many cases.
When I got back home, we emailed the supplier asking if his statement was an offer and if it was, then this might form the basis for a negotiation to solve the issue. We basically left the window open for them to continue talking but once the magistrate has made a decision, then that's binding. I haven't yet had any email back from the supplier. It might be in their interests to respond quickly.
So, it appears, without all the other crap to confuse the issue, is that there's a breach of contract.
The contract was for 3 weeks. It was breached by them and we were within our rights to cancel.
Saying that, they say that they did explain there were delays so ... you know.
I'll let you know when there's an outcome.
Feb 3rd 2011, 5:09 am
#107
Thread Starter
Joined: Oct 2007
Posts: 9,668
Re: Rules on Refunds in NSW? Anyone know?
Pen, selling it might be a solution. He gets some money for it and he's able to give back our deposit. Everyone wins.
In mediations and this sort of case, it's good to get an outcome everyone likes because if the magistrate decides it, then one of us won't like the outcome. That could be us or it could be them.
I'm really hoping it's a clear case of breach.
The Magistrate asked us why we didn't go and pick up the end product when he told us it was ready.
We said because we'd asked him to stop so we could resolve the issue of the price increase etc. and that it was too late for our purposes.
It's like he's forcing us to take the product, even though we don't now want it.
I guess we'll get an outcome at some point in the next few days.
Feb 3rd 2011, 5:10 am
#108
Thread Starter
Joined: Oct 2007
Posts: 9,668
Re: Rules on Refunds in NSW? Anyone know?
They got their hands slapped for offering a $3 refund to us. The magistrate pointed out that the materials were purchased by them with our money and therefore the materials belonged to us.
Pen, selling it might be a solution. He gets some money for it and he's able to give back our deposit. Everyone wins.
In mediations and this sort of case, it's good to get an outcome everyone likes because if the magistrate decides it, then one of us won't like the outcome. That could be us or it could be them.
I'm really hoping it's a clear case of breach.
The Magistrate asked us why we didn't go and pick up the end product when he told us it was ready.
We said because we'd asked him to stop so we could resolve the issue of the price increase etc. and that it was too late for our purposes.
It's like he's forcing us to take the product, even though we don't now want it.
I guess we'll get an outcome at some point in the next few days.
Pen, selling it might be a solution. He gets some money for it and he's able to give back our deposit. Everyone wins.
In mediations and this sort of case, it's good to get an outcome everyone likes because if the magistrate decides it, then one of us won't like the outcome. That could be us or it could be them.
I'm really hoping it's a clear case of breach.
The Magistrate asked us why we didn't go and pick up the end product when he told us it was ready.
We said because we'd asked him to stop so we could resolve the issue of the price increase etc. and that it was too late for our purposes.
It's like he's forcing us to take the product, even though we don't now want it.
I guess we'll get an outcome at some point in the next few days.
Feb 3rd 2011, 5:36 am
#110
Lost in BE Cyberspace
Joined: Mar 2003
Posts: 9,397
Re: Rules on Refunds in NSW? Anyone know?
Hang in there!
It may be a pity that you contacted him after the hearing but before a judgement as it might be held that you are acting in parallel with the case - but then it could be argued that you are going an extra kilometre to reach an agreement!
It may be a pity that you contacted him after the hearing but before a judgement as it might be held that you are acting in parallel with the case - but then it could be argued that you are going an extra kilometre to reach an agreement!
Feb 3rd 2011, 6:33 am
#111
Thread Starter
Joined: Oct 2007
Posts: 9,668
Re: Rules on Refunds in NSW? Anyone know?
Forgot to mention that we spoke about the guarantee he'd written out for us - apparently it was pointless because we didn't sign it.
I was worried it would look like we'd entered into another agreement with them but it's not valid.
They told the mag, that they'd changed their processes because of all this and the client now signs off on everything at each stage.
So they're admitting they're in the wrong about that too.
So, we're just waiting...
Thanks. : )
Feb 4th 2011, 4:59 am
#113
Thread Starter
Joined: Oct 2007
Posts: 9,668
Re: Rules on Refunds in NSW? Anyone know?
Ok, we got the decision. Not good news. :-/
There are major issues with it given there are inconsistencies with what the Magistrate has written and what he said in the hearing.
Based on this, we're going to have to have a re-hearing we think. We know the magistrate was rushed because there were other people present who were waiting and there were things which weren't included in our evidence which should have been.
Basically it says that there was no definitive time period agreed to - In the hearing however, the respondent agreed that it was 3 weeks.
The magistrate goes on to say that at the time the contract was formed, the evidence isn't there that says part of the contract was the time reference... even though they agreed it was in court.
This has got us stumped. The respondents said that 3 weeks was the agreement, so this is one point the magistrate has got wrong.
At the hearing the magistrate said that the guarantee he provided was not valid because we didn't sign it, yet then goes on in the summation to say that the contract continued to exist because he provided it.
Therefore when we told them to stop work on the item, the contract wasn't terminated according to the magistrate because of the guarantee the guy provided.... even though the guarantee wasn't valid... so you work that one out!
Further evidence has come to light since then and we are going to have to have a rehearing...
Oh, they keep the product and the money.
There are major issues with it given there are inconsistencies with what the Magistrate has written and what he said in the hearing.
Based on this, we're going to have to have a re-hearing we think. We know the magistrate was rushed because there were other people present who were waiting and there were things which weren't included in our evidence which should have been.
Basically it says that there was no definitive time period agreed to - In the hearing however, the respondent agreed that it was 3 weeks.
The magistrate goes on to say that at the time the contract was formed, the evidence isn't there that says part of the contract was the time reference... even though they agreed it was in court.
This has got us stumped. The respondents said that 3 weeks was the agreement, so this is one point the magistrate has got wrong.
At the hearing the magistrate said that the guarantee he provided was not valid because we didn't sign it, yet then goes on in the summation to say that the contract continued to exist because he provided it.
Therefore when we told them to stop work on the item, the contract wasn't terminated according to the magistrate because of the guarantee the guy provided.... even though the guarantee wasn't valid... so you work that one out!
Further evidence has come to light since then and we are going to have to have a rehearing...
Oh, they keep the product and the money.
Feb 4th 2011, 9:45 am
#114
Lost in BE Cyberspace
Joined: Mar 2003
Posts: 9,397
Re: Rules on Refunds in NSW? Anyone know?
Sounds rather like an amateur did the hearing. It's not exactly a capital case, but still..............
