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QLD Problems Cancelling Gym Membership

Discussion in 'Australian Consumer Law Forum' started by marie854, 11 June 2014.

  1. marie854

    marie854 Member

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    I sent an email to my gym in June last year asking if I could put my membership on hold as I was pregnant and unable to use the gym for a while. I said it would be at least May this year before I returned. I was no longer under a contract as my 12 month minimum term was up but I didn't want to cancel in case I wanted to go back after I had my baby and then had to re-sign a 12 month contract. I never got a response to the email but the payments stopped coming out so I assumed they had cancelled my membership.

    At the start of May, I had a random payment taken out of my account for the usual membership fee. I was quite a surprised as to how they can just start taking out money again without contacting me. I called up on the Tuesday and the girl I spoke to had no idea what was going on. I asked her to cancel my membership but she said she would get someone to call me back the next day to go over it.

    That did not happen, so I called back again on the Friday and spoke to the same girl. Same story, she couldn't help so she promised someone would call me back the next morning. Yet again, no call. So I waited until Tuesday and called again and yet again I get the same girl with the same story. I was quite frustrated at this point, but remained calm. She assured me someone will call me the next morning. At 4:30pm the next afternoon I finally received the call.

    This was a different girl, she says they did send a reply to my email confirming my membership was on hold until May. I said I never received that email so I assumed you'd cancelled it. She was very rude and said I shouldn't assume anything. She said they got a bounce back as they email didn't go through because whoever sent it didn't put the right email address in. I said that was not my fault if they don't check their emails properly.

    She said I would not get a refund and I need to give 30 days notice to cancel my membership. I said I was unable to go and do that (for reasons I shouldn't need to explain to her), but she said that's the only way I could cancel. So, I sent another email addressed to the owner of the gym. This email went over everything that had happened and I asked if she could contact me to help sort it out. I have still not received a response to that email and that was over 2 weeks ago.

    They have since taken another fortnight's payment out of my account so I have had my bank cut them off.
    I posted something on Facebook last night to see if anyone had a similar story and if they got their money back. There were a lot of people had the same problems with this gym, so its not the first case. The post started to get out of control with nastiness towards the gym so I removed it before they saw it. However, someone else saw it and has told them. I got a phone call this morning from them saying if I did not take back what I said, they would take legal action. I then told then that I was taking legal action to get the $80 they took out of my account illegally. That's where the conversation ended.

    So, my questions are:
    A: Can they just start deducting money from my account without contacting me first?
    B: Do I still need to give the 30 days notice if I am no longer under contract?
    C: Can they take legal action if what I said on Facebook was 100% accurate?
    D: Is there any chance of me getting my $80 back under Australian Consumer Law?

    I've never been in this situation before. I am so mad over this. I just want my $80 back. Please give me some advice as to what to do next, thanks.
     
  2. John R

    John R Well-Known Member

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    Hi marie854,
    1. Which state/territory are you located in?
    2. Do you have a copy of the original gym membership contract that you agreed to?
    3. Was the information you posted on Facebook untrue or false?
    4. Was the $80 withdrawn via bank account or credit card direct debit?
     
  3. marie854

    marie854 Member

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    1. Which state/territory are you located in? - QLD
    2. Do you have a copy of the original gym membership contract that you agreed to? - Yes
    3. Was the information you posted on Facebook untrue or false? - 100% true
    4. Was the $80 withdrawn via bank account or credit card direct debit? - via direct debit from my account
     
  4. Sophea

    Sophea Well-Known Member

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    Hi Marie854,

    Further to John R's response above (which I anticipate he will continue with shortly in response to your answers) yes truth or justification as it is known, is a complete defence to a claim for defamation. However it must be said that as the onus of proof in respect of any defence falls on the publisher of the information, reliance upon a defence of truth means that the defendant must be able to prove that the matters complained by the plaintiff are substantially true. It is also requisite that the publisher must justify all defamatory imputations in the publication. So if eight defamatory imputations are pleaded by the plaintiff, the defence requires justification of all of them. Here is a fact sheet on Defamation in Australia if you are interested: http://www.qpilch.org.au/resources/factsheets/Defamation.htm

    Have a good read of your original gym membership and direct debit authorisation. Those documents should set out for your exactly what the gym are and are not entitled to do.

    I have been through this twice with gyms. I provide notice in person that I wish to cancel but then the payments continue and they say that I need to provide it in writing. So I next time I do it in writing and they say they want to see me in person! Its a nightmare!

    Best of luck to you!
     
  5. marie854

    marie854 Member

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    Thank you Sophea,
    I have read through my contract and it does state it needs to be in writing and 30 days notice. The email I sent them last year stated I wanted to either cancel or pause my membership due to pregnancy. Since I did not get a response to this, I assumed they cancelled it.
    The problem I am having is that when I spoke to the girl on the phone the first time, she didn't know what to do after I asked her to cancel, she just said someone would call be back.
    Because this went on for over a week, I hoped that would be part of my 30 days. But, apparently not. I did send an email to them nearly 3 weeks ago now but still had no response to that.
    I actually had a phone call this morning from the company that take the money out of the accounts, they left a message to call them back which I have not. They will now be chasing money as I had my bank cut them off.

    I am printing out all information I have and keeping it at hand to take to my fathers lawyer if this goes further. This is stressing me out right now but as a matter of principle for the disgusting service I have had trying to resolve it, I will go to whatever measures I have to to make them pay. Even if it costs more than they owe me.
     
  6. John R

    John R Well-Known Member

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    Hi Marie854,
    1. I agree with Sophea's response in relation to defamation.
    2. Given that you're in Queensland, you should consider reviewing the Queensland Office of Fair Trading's website on ending gym memberships.
    3. The Queensland Office of Fair Trading generally suggests making a complaint in writing to the gym to resolve your issue before complaining to the Office of Fair Trading (or taking further legal action). You may find the recent Queensland complaint thread "Home Security Alarm System Monitoring Contract - Charged $1200 Termination Fee" a useful starting point to writing and sending a complaint letter to the gym.
    Please keep us updated. Good luck!
     
  7. DennisD

    DennisD Well-Known Member

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    Hi Marie854,

    How did you go with this? Did the gym finally process your membership cancellation?

    Further to the above comments, under the Australian Consumer Law gyms are not allowed to include unfair terms that make it difficult for consumers to terminate memberships (for example, requiring membership cancellation in person)
     
    Geraldine likes this.

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