Know Your Consumer RIGHTS!
I’m actually sitting here on the tail of what has been an epic clusterfuck when it comes to dealing with a certain company, who I likely shouldn’t name because well I don’t really feel like being sued. Lets just put it this way, they sell designer apparel, at discounted prices, are based in Singapore and have a Head Office in Sydney…. If this isn’t enough of a clue feel free to send me a message an I can tell you in detail about MY experience with them, which is nothing but fact. So no slander/libel/defamation here, cause it’s based on solid fucking hard fact.
Now I’m not your average Joe, I have some legal training (law degree) and generally consumer law is something I’m pretty well versed at, cause basically I’m one hell of a consumer. Let’s cut a long story short, this business did something questionable at least, criminal at worst. For me that is a deal breaker, I’m not doing business with companies who think it’s ok to produce fraudulent bank documentation, just a random example lets not get too specific of what I could be talking about. Nothing too specific there. As soon as I got wind of this, all bets were off. I’ve been doing business with this company for close to 3 years and yesterday I closed ALL my accounts. Which for those of you who know me is a BIG deal because I love designer bags and I love not paying retail. If I was an Amex customer in their terms I’d have a black or maybe even clear card. Honestly I get confused to which gets me what cause I don’t use them. But I digress.
Now company has a said statement in their “terms and conditions” any cancelled lay-bys will insure a 20% deposit forfeiture. Seems reasonable…. Then when I was produced with a 2k forfeiture, I raid my eyebrows and though, they have to be fucking kidding me, this can’t be right? These types keeping of funds are to cover admin costs and any “associated” expenses encounter by cancellation of lay-by. Well fuck me, near 2k to realist a bag, that’s been on lay-by 2 days (well 2 bags actually), that hasn’t been moved warehouse or actually had anything other than sold written on it on the website seemed, well, fucking excessive. Otherwise their hourly rate is ridiculious!
Here’s where it pays to know your rights. There is this little thing that superseded the Trade Practices Act, Called the Competition and Consumers ACT (2010), funnily enough managed by The Competition and Consumer Tribunal. So I took a little digging around. Now it seems that “lay-by forfeiture” is not actually a legally definable or usable legal term, though used a lot (you’re welcome) and that any Termination Fee (it MUST be phrased like this, not the lay-by forfeiture) has to be justifiable to the expenses endured to the company….
So I posed a little letter that went something like this: Now the first rule of thumb in my book is to come out a little pissed, give a bit of your hand away and then follow-up with a blast you to hell legal letter that’s aim is to have them shitting in their pants if first letter does not work.
Dear Assfuck Company (ok I used real names but CC’ed in everyone I could find in ANY position of power… yes to the international CEO),
Due to fraudulent misinformation provided to by your company to my bank, there are serious allegations of fraudulent misrepresentations from your end I am being chased by my bank’s financial crimes services to investigate us both. This is not only embarrassing but completely unacceptable. Due to the nature of your actions I wish to terminate ALL business dealings with you immediately .I request ALL money that you hold of mine on orders, including deposits be returned on all orders, with no exceptions.
If you insist on keeping deposits illegally, regardless of what your “policies say” then I WILL peruse both criminal and civil proceedings. Being out over $2k due to this abomination is not something I am willing to accept. It is very clear that holding of such deposits when it comes to financial matters like this is not actually legally enforceable and a very black and white matter of law. May I please point you to:
http://www.consumerlaw.gov.au/content/the_acl/downloads/sales_practices_guide_dec_2011.pdf
You will find section 5 the most enlightening. I have summarised and highlighted the relevant laws, for your easy perusal.
Competition and Consumer act (2010), as I provided s5
CANCELLING A LAY-BY
The consumer may cancel the agreement at any time before receiving the goods. On cancellation, the consumer must receive a refund of all money paid, less any termination fee specified in the agreement.
The termination fee must not be more than the supplier’s reasonable costs. This could include storage and administration costs. If the supplier cancels the lay-by the termination fee cannot be charged. Termination fees MUST be transparent and available on request.
PENALTIES
It is an offence for a supplier to:
enter into a lay-by agreement without putting it in writing
not give the consumer a copy of the written agreement
refuse all of the consumer’s money (except for the termination charge)
Charge a termination fee that is higher than the reasonable costs associated with the agreement or when the supplier has breached the lay-by agreement.
Each offence has maximum civil and criminal penalties of $30,000 for a body corporate and $6000 for an individual.
I Also include for your perusal:
http://www.consumerlaw.gov.au/content/the_acl/downloads/sales_practices_guide_dec_2011.pdf
When a consumer cancels a lay-by agreement
The consumer can cancel the lay-by agreement any time before delivery of the goods. If the consumer cancels, the supplier must refund all amounts paid by the consumer, less any termination fee that was clearly specified in the lay-by agreement.
There is no set amount or percentage for a termination fee, but it must not be more than the supplier’s ‘reasonable costs’ relating to the agreement – for example, storage and administrative costs. What is ‘reasonable’ will depend on the circumstances, and suppliers should be prepared to justify claims for reasonable costs.
I will take this opportunity to inform you I have NEVER been informed of a termination fee, just a deposit forfeiture, which are not legally interchangeable terms. I would also like to point out that the money you are trying to hold is not justifiable, in terms of your expenses and if I am to loge a complaint with the appropriate department I request full transcripts of my accounts, deposits held and will encourage them to fully investigate your company. You may have noted each infringement is a 30K fine EACH. After reading the relevant laws, getting independent advise and my own legal education i surmise the following:
1. Your Terms And Conditions are not enforceable due to poor legal terminology that makes them unforceable.
2. I am justified in requesting a transparent costing for how you figure your costs for my lay-by forfeiture its equal to 2k when I can list an item on eBay for $2. You have refused this, which by law you cannot.
3, If all moneies are not deposited back into my account 24 hours from now, with digital receipts I will forward on a further letter of demand, outlining other damages/costs that I have suffered due to this business arrangement. (the bank closed down ALL our accounts, including business accounts for 6 hours. This is a substantial period of time and the figure I gave them, again would have them shitting their pants)
4. I will be reporting you to the appropriate regulatory authorities, including the specific law breeches, a dated copy of your TAC as well as all correspondence where you continue to use the term Lay-by forfeiture. I will also express my deep concern at how long these practices have been going on and request a full investigation,
Given both of these you are NOT entitled to my deposits (as you call them) as they are not termination fees (not interchangeable). I WILL pursue this legally at will also go for costs as legislation clearly states you are breaking the law.
I hope to end this as quickly as possible with minimal fuss. But I will push to have ALL my funds reimbursed and you held accountable for your actions.
Sincerely,
A VERY PISSED OFF MRS BmB.
Ps. I suggest you get a new legal team (I JUST had to add that in for shits and giggles)
Would you believe this email was sent at 10pm at night, I was granted full refund by 10:30 am…. That’s 1.5 hours for them to do enough research and realise I knew exactly what I was talking about and I would take them to hell and back just because I could.
So the lesson there consumers, is KNOW your rights. Don’t just settle for the whole “statutory blah blah blah” and actually read what is said and the terminology that has to be used by the seller. Otherwise you have the ACC, the OFT and TFSO at your fingertips and they WILL fry them for you….
FYI yes I DID get my refunded but they missed a number in my bank account so of course it’s going to bounce back (should I be surprised?). More fool them, I rang my banks head office and emailed my branch and they will be looking for it so it doesn’t bounce back. Since the 2k is the 20% deposit you can only imagine how much they are hating me right now. Oh well, open door closes and another opens, I’ve found another Givenchy I’m IN LOVE with for half the price. WIN WIN WIN really.
Oh and how did they break the news they knew they had been legally outgunned?
As previously mentioned, we would have needed to forfeit 20% deposit as the cancellation fee. However, we are able to refund the deposit of as a goodwill because you are a valuable customer. Therefore, we will cancel all orders as per your request and refund a total your bank account.
Yeah like that ever happens…. I bet give them 3 days their terms and conditions are renamed and the rules change. Screenshots taken and dated, all email correspondence kept and OCD pays off… Too late. Did I mention I filed a complaint anyways? Cause I’m a bitch. But for the greater good. I hope every person gets back what they are owed and those 30K fines add up…. Maybe I’ll want to buy a failing business? LOL (half kidding)
And FYI that was the nice letter….
But it goes to show, don’t let big companies try and snow you, know your right and be prepared to fight for them. Go a little BmB on them!