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QLD Australian Consumer Law - Ripped Off by Facebook Seller - Refund?

Discussion in 'Australian Consumer Law Forum' started by Silly1, 4 February 2016.

  1. Silly1

    Silly1 Active Member

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    Sorry for long post, desperate for some help, please.

    So I had a moment of silliness, was on a Facebook Group for used designer clothing and found a second-hand designer dress I wanted. The seller asked me to direct deposit funds and I did, should have gone through Paypal I know (this was just over a week ago).

    Dress is advertised as 'in perfect condition' and 'worn only once'.

    I know I am totally at fault for entertaining her and transferring the funds directly.

    To cut a long story short, after much messaging and a few false tracking numbers, I gave notice that she must refund my money within 24 hours or I will take further action. No refund, of course, but yesterday I receive a parcel containing the dress.

    I open the parcel, the dress is smelly, not cleaned, quite soiled and all the seams on the dress have been under so much stress, and over a period of time I would imagine, that the seams are about to give way (100% silk dress). I took photos immediately and sent them to the Facebook Group's Administrator.

    The Administrator cannot believe the condition of the dress and immediately messaged the seller to request a refund. The administrator also advised that this is not damage, that is done in a short period of time (i.e. when I received the dress but, instead, over a long period of time and wearing). The Administrator also offered to be the middle person and hold the refund in her Paypal account until the dress is returned (very kind of her, she has been a great help).

    The seller then advised that the dress was perfect when she sent it and that I had obviously damaged it when I received it. The seller sent many messages to the Administrator until the Administrator blocked her from the group and advised me to take further action as getting a refund of her is going to be near impossible.

    I have taken screenshots of the original dress listing, our conversations, the transfer and all relevant messaging. I have plenty of proof as to the transaction. I have every message since the beginning.

    The only contact details I have are her Facebook page and her return address on the parcel.

    I have now lodged a dispute with my bank (we are both with the same bank) and with ACORN. I have contacted QCAT who said they are unable to help me. I am in QLD, she is in NSW.

    Is there anything I can do under Australian Consumer Law to recover by $380 or do I just put it down to a hard lesson learned?

    Thank you for reading and thank you in advance for any help.
     
  2. Tim W

    Tim W Lawyer

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    Couple of things in play.

    The first is... is the seller a private individual, or are they (as the ACL says), acting in "trade or commerce"?
    If the former, then the ACL will not automatically apply - in which case, you've done your money.

    If the latter, and you can identify the seller and show that they are in Australia,
    then you might (very "might") have a chance.
     
  3. Silly1

    Silly1 Active Member

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    I would imagine they are an individual, selling something that they own. Just the same as some buying a push bike or gym set or used TV off someone. This was an item of clothing.
     
  4. Tim W

    Tim W Lawyer

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    Yes. In which case, this is not necessarily a transaction to which the ACL applies.

    Can you find the seller in the real world?
     
  5. Silly1

    Silly1 Active Member

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    Thank you so much or replying. Yes I have an address for the seller.
     
  6. Wiggins

    Wiggins Well-Known Member

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    Off the cuff, I think that the ACL is a red herring. My understanding here is based on English Law, but IMHO there seems to be very little difference in the basics.

    I believe it comes down to this: There is a contract in place. A contract inherently requires an offer, acceptance of the offer and consideration (in this case cash).

    The seller offered to sell you the goods and "warranted" its condition as New / Nearly New. On this basis, you accepted the offer, followed with a consideration $380.

    The seller misrepresented the condition of the goods, and, therefore, they are in breach of contract (unless they say SOLD AS IS etc)

    Personally for that kind of money, it would make sense to do a bit of research (or even talk to the Clerk - they can be really helpful if you get them on a good day) then go to your local court and file for your money back plus costs (IE reasonable cost for your time, court fees etc) - it's actually not a very hard thing to do - easier than you would think. I would stress to swat up on how to file a claim yourself, though, as there are quite a few I's to dot etc. I think last time I did this it cost me about $70 and getting a couple of good affidavits + exhibits)

    If the seller has any mind at all, they won't want to defend it and probably give you your money back, then you just have to swallow the cost to lodge. As long as you can prove you are in the right, I'd give it a shot if I was in your boat.
     
  7. Silly1

    Silly1 Active Member

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    Wiggins - thank you. I was wondering about this as I took it as a 'verbal contract' which was broken because the seller didn't meet the contract conditions?

    I am not very up on the Court systems and such. Do you mean I should go to the local Court House and speak to the Clerk? Is there paperwork that I can fill out and file at the local Court or do I download them and take them into file? Not really sure what procedure I should follow.

    The Administrator of the Facebook Group would be happy to help where necessary, she is quite disgusted with the seller's behaviour. I have screen shots of the entire transaction and messaging from day 1 including the Group Administrator getting involved who sent me screen shots of her conversation with the Seller.

    I really want my money back, but, more so, I want to make sure this girl thinks twice about doing this again. Both the Group Administrator and I think that this is not the first and last time, given she was giving tracking numbers that were months old and had already been delivered, as a diversion tactic.

    Thanks again.
     
  8. Wiggins

    Wiggins Well-Known Member

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    That's pretty much as I see it. Before I went to court, I'd like to know that I had a hard copy of the advertisement of facebook with a witnessed letter from the admin (minimum) that she'd take it to a JP to witness it - but easy as Pie. You should also have (ideally) pictures of the dress the way you received it. Stick all of that as well as your version of events, into a template Affidavit (you will have to solidly research that as it has to be 100% accurate, as the penalties for perjury can be pretty harsh)

    I fully understand your position. It's not about the money, it's more about the principle and preventing other people going through the same thing.

    Personally, I have found that Google is your friend. Search for a guide to help you self-represent. Nowadays more and more people are going to court and representing themselves and I have found that Judges will give you a lot of latitudes, especially if they can see that you have done the right paperwork and made an effort to comply with basic requirements.

    If the other party just doesn't bother to show up, they will get a judgement against them automatically. They might not pay you. That's a whole different kettle of fish :)

    Regarding the Clerk. Remember they are not there to give you "advice" but they are allowed to talk to you about which form to fill in etc. IE procedural stuff. As I've said, I've always had pretty good experiences - they are generally very knowledgeable and can simplify things immensely.

    It's definitely worth a trip down there to see if they will chat with you for 10 minutes.

    After writing my first reply, I did also wonder whether it would be worth threatening to go to the police. Costs nothing to make a complaint.

    As far as I remember, receiving goods or money by deception is a criminal offence if they had "an intent" to defraud you and obtained goods, services or financial consideration. The Police will probably do nothing, but the complaint would, at least, be on file - just keep a record of your statement and the complaint number - might come in handy.

    I don't know about Australia, but in the UK, the maximum used to be like 10 years.

    Sounds like the buyer is holding a very weak deck of cards - it just depends on how you want to play yours :)
     
  9. Silly1

    Silly1 Active Member

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    Thank you. I have all of the things you have mentioned the original ad and also her messages saying she sent a 100% perfect dress. I have photos taken the day of receipt of all of the damage and the Admin person confirming that there is no way I could have done that damage in a few hours.

    I have messages, photos and people to confirm the chain of events. I will pop into the Court House tomorrow and see what forms would be applicable and try to go from there.

    I did think about the Police, I know that in Australia they recommend you call Crime Stoppers for non-urgent issues. Perhaps I could give them a call and lodge an 'event'.

    Again, thank you.
     
  10. Wiggins

    Wiggins Well-Known Member

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    Anytime. I, at least, hope it's a food for thought. Fighting your own case for the first time (if you decided to do that) can be pretty daunting and even traumatic, but once you have gone through all of the hurdles once, you become a lot more empowered the next time you get swindled.

    Crime stoppers sounds like a fantastic idea. Now one other thing occurred to me.

    You can not just "threaten to go to the police or sue them" as that could be perceived as intimidation.

    You have to write to them with your demand for a refund.

    Whenever I have had to do this in the past, firstly I make a letter of demand via registered post
     

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