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SA Is This a Civil Law or a Criminal Law Matter?

Discussion in 'Australian Consumer Law Forum' started by familyguy, 28 June 2016.

  1. familyguy

    familyguy Member

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    I work for a real estate company and arranged to purchase an air conditioner on behalf of a client using the client's funds. The air con supply company was initially contacted by phone and then via email. They issued a picking slip, funds were transferred to the air con company, they then emailed a tax invoice which would need to be produced at the time the air con was picked up.

    It was arranged with the builder who was supposed to do the air con install. They would also pick up the air con. A few weeks went by and the client changed their mind and went ahead with the builder with a different air con system. I was contacted and asked to request for a refund. On contacting the air con supply company, I was told the air con had been picked up so there was no refund.

    I asked for proof and was sent a video of a male person unknown to me or the builder walking into the outlet. He speaks (audio too faint to understand) and one of the air con supply company employees hands him some paperwork to sign and he leaves with the air con. Clearly, the air con company employees have made a mistake. The person they gave the air con to had no proof of purchase. They are now wanting me to pay for the mistake. The air con company did say to me "we are not going to wear this one". They are now ignoring me.

    My question is, "is this a civil law matter or a has a criminal law been committed"? I want to take this to the police but not before I am sure I can insist they investigate. I am responsible for the client's money and need to have this resolved. It is not a huge amount ($750) but this is not my error and I should not be expected to pay for their mistake.
     
  2. Rod

    Rod Well-Known Member

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    It is potentially both. Though determining who is the innocent party will be hard to prove. It is possible the aircon company is innocent. It may be the purchasers arranged for a friend to pick up the aircon unit who then 'went missing' with it.

    As you have followed your client's instructions you are not liable for the mistake of others. Question is are you willing to risk your client's ill-will and possible law suit for $750? Many agents will refuse to pay saying it is not their responsibility. Some agents might pay as they have a good client with repeat business.

    Comes down to a judgement call by you as to what you do.
     
  3. Louise4007

    Louise4007 Well-Known Member

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    Hi familyguy,

    In a general sense, it depends on what level you were responsible for your client's funds. Was it a contractual arrangement between yourself & the client or the real estate agent? Or an established trust fund with the real estate agent you are employed by?

    Again, generally, the client breached the initial contract with you or the agent by not fulfilling the originally stated obligations that you (or agent) would be responsible for the purchase, by release of funds, of the air conditioner, its' subsequent collection & so forth, therefore the clients' breach of contract whether written or verbal, results in an unlikelihood of you or the agent being liable for the refund of $750 although this depends on the level of responsibility originally assumed by the agent or yourself for the disbursement of client funds.

    The client would need to follow up refund procedures with the air con company if he / she so chooses.

    Again, generally, the matter is one that is potentially both civil & criminal, the civil law component allowing an action for debt to be instituted by the client & also allowing you & the agent to defend yourselve(s) against responsibility for the actions in the circumstances where the client states his / her case for a refund to substantiate an action in debt if this course is chosen. It becomes criminal if the imposter who accepted the air conditioner is identified & it is proven that he obtained the goods illegally/ without authority etc.

    I would doubt that an action for the debt of $750 against you personally or the agent would be successful if sufficient terms were agreed to by written contract or trust arrangement prior to the events occurring. Instead, the air con company could be held liable to repay if it can be established that they failed or were negligent in the exchange goods which was originally intended to be in accordance with pre-arranged or requisite instructions.

    Cheers
     
  4. DMQC

    DMQC Well-Known Member

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    Louise is right, great help.

    It may indeed be a criminal and civil matter however the issue relevant to you and your client are of course civil; the criminal matter may be dealt with by Police however this would not assist you in your claim very much, if at all. Also the burden of proof is much higher for Police therefore if they did not have enough evidence to pursue charges against the individual, it does not mean you would not succeed in a civil claim.

    As Louise said, it depends on the extent/nature of your relationship with your client, however it does also depend on the nature if your relationship with the supplier. Agency law has it that providing you were authorised to act on their behalf (your client) for such matters, whether explicit or implicit, then you are not liable providing you purchased the the items from the supplier on behalf of your client and (generally) the supplier would need to be aware of this also.

    It can be more formally said "If an Agent (you) acted within the scope of the actual authority given (that is, you were given authority to purchase the item), then the Principal (your client) must indemnify you for the payments made during the course of the relationship.".

    I appreciate you would not want to leave your client in the lurch however you were not negligent whatsoever, although you may have wanted to advise your client that "changed my mind" is not grounds for a refund under Australian Consumer Law, so chances are they would not have obtained a refund anyway.

    Hope that helps.
     
    Louise4007 likes this.
  5. familyguy

    familyguy Member

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    Thanks to all who answered. I'm not concerned about the relationship between myself and the client. The purchase of the air con was made with full knowledge and consent of the client, I did nothing wrong here, the client acknowledges this and do they not blame me at all.

    I do however feel bad for the client as the air con company in question (they are a large and well-known company and operate Australia wide) has effectively fleeced the client out of $750 through their incompetence and failure to adhere to procedure.

    I feel a responsibility to the owner to try to recoup the money, what I was wanting to know is - is this a matter for the police or are we supposed to try and drag them through the courts? I feel that they have received the money under false pretences, the invoice is made out to the real-estate company that employs me but has been signed as collected by a person totally unconnected with us.

    I realise changed mind is no grounds for a refund but at least the client would have the air con to use on another property.
     
  6. DMQC

    DMQC Well-Known Member

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    Apologies, I misunderstood your concerns. Indeed your Client has been seemingly duped and to say poor customer service is putting it mildly. I will address both options i.e. Police or Civil and possible course of action through each.

    1) You could report the matter to Police, however, this will probably not have the outcome you're after i.e. reimbursement for the cost of the unit, however if the person who took it from the supplier is still in possession of the unit when/ if Police get in touch with them, then your Client would likely have the property returned given it may be classed as "stolen". A lot of if's and but's, however, it is a backup option you could consider.

    2) If you only want a refund or replacement unit then there are a few options, depending what State you are in -
    • Contact the Consumer Protection Department of your State Government, mine personally is Western Australia however other States have a similar department for the same type of issues; here is the link for WA Consumer Protection | Department of Commerce
    • Contact the ACCC and lodge a complaint.
    • Have the matter heard as a Minor Case Claim in a Magistrates Court. Again, with reference to Western Australia, there is a type of claim you can make which is designed exactly for issues such as this. Essentially it operates the same as a normal court case however it is very informal and parties are generally not permitted legal representation i.e. lawyers. If the Court allows a party to be represented by a solicitor/barrister the costs will not be awarded to the other party regardless of the outcome. The benefit of this route is that the decision is binding. From looking at this matter as face value you will likely win the case and perhaps the supplier will be of the same opinion this and settle prior to the hearing.
    • A starting point to all this would be to send a Letter of Demand outlining your claim. You may very well be getting nowhere because of a particular manager, so address the letter to the Head Office and if the large Company values their brand they should see sense and reimburse you.
    Please note that I do not suggest you mention the fact you were seeking a refund because your Client went with a different supplier. It could be better explained that your Client was forced to go to a different supplier due to the first supplier giving the unit to the wrong person.
     
  7. Louise4007

    Louise4007 Well-Known Member

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    This incident could possibly become a criminal matter if, as I mentioned previously - a) the imposter is correctly identified & subsequently questioned and/or apprehended by police for his actions & b) the imposter has in his possession no receipt or proof of purchase of the air conditioner. Police may lay charges. If the person who collected the air conditioner is proven to be an imposter who wrongly collected the goods the court will decide on the appropriate penalty.

    The matter would then turn on questionable/dubious actions, procedures & practices by the air con company & whether those practices were in accordance with yours or the agents set down instructions. It would then fall upon the client, if he so wishes, to institute action against the air con company. To have a strong argument the client would need to establish by proof, that the company were at fault by their negligent actions/procedures subsequently causing a loss to the client by providing the air conditioner to the wrong person leaving him out of pocket.

    The client would be responsible in initiating this civil action against the air conditioner company after proof has been established that the person who collected the air conditioner was the wrong person & the company acted wrongly by providing that person with the goods causing the client a financial loss.

    If the imposter is positively identified an action for debt ($750) could be initiated against him by the client or against the air conditioning company for the loss as described.

    Cheers
     
  8. familyguy

    familyguy Member

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    Thanks to all who replied. For now I have lodged a complaint with Consumer Protection and am waiting on the outcome. I was initially reluctant to do so as I first called them for advice and the guy who spoke to me seemed to think it was all too hard.
     

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