NSW Terms and Conditions - Vendor Deposits

[threewatts]

Hi Guys,

I approached a vendor last year for his services and paid 50% deposit requested + the remaining 50% for the full amount of the invoice.

I have had to cancel his services of which I am fully aware that I am not always entitled to a refund for change of mind.

I thought I'd ask the vendor anyway if I could at least get the 50% back for services not yet rendered. He declined saying that according to his terms and conditions that he emailed me, I could not get a refund.

Here's the thing... I never received his terms and conditions, not even in the invoice he sent.

1. Not once before, or during the transaction did he mention any terms of his service, or payment, or my obligations.

2. He sent me a screenshot as proof that he sent them which is dated FOUR days after I paid

3. In his screenshot he has written :

"Payment has been received fine, please find your receipt attached and my Terms and Conditions. Please read them carefully and sign/date the back page and return that page back to me. Please be aware they take effect once payment has been received."

Again, I never received Terms and Conditions so I have not even been able to sign and send him back my response.

Now I'm questioning if our transaction is valid at all, so I'm asking ;

Can this contract or transaction be valid if:

1. Terms and Conditions were NOT provided from the start, but AFTER the transaction was made
2. A contract or any papers were not signed
3. Being told AFTER I have made payment that by me paying, I would be locked in

I feel I have some rights here but I can't be sure. The closest example to my situation is one a friend had. She purchased a book and AFTER she had made payment the cashier stamped "no refunds" on the receipt. She was able to get her money back because she was not informed anytime before or as she paid that a 'no refund' policy would take effect upon payment.

Is there anything I can do here?

 

[Clancy]

If the transaction was done over Ebay, then usually the terms and conditions are available for you to read at any time before or after purchase?

That being said, his terms and conditions cannot countermand consumer law, but if they do not, then your probably out of luck.

 

[threewatts]

If the transaction was done over Ebay, then usually the terms and conditions are available for you to read at any time before or after purchase?

That being said, his terms and conditions cannot countermand consumer law, but if they do not, then your probably out of luck.

This transaction was run through FB conversation and email.
He is not an ebay seller.

He does not have his terms and conditions on his facebook or on his website so I could not access his terms and conditions at any point unless he provided them to me.

I only have a screenshot he sent me that says he sent me the terms and conditions but as I originally posted :

1. I did not physically get them in my inbox
2. Even if I did receive them, he sent them 4 days after I had paid.

If you are paying for something, I don't think it's fair that a no refund policy you were not made aware of has been activated AFTER you just paid for it.

 

[Clancy]

Ok i got it now.

So yes, i would expect from a legal standing the terms and conditions provided to you before sale was none and therefore you are bound by standard consumer law. Does that mean you get your deposit back? I don't know? Look up the standard consumer laws in your state?

 

[threewatts]

Ok i got it now.

So yes, i would expect from a legal standing the terms and conditions provided to you before sale was none and therefore you are bound by standard consumer law. Does that mean you get your deposit back? I don't know? Look up the standard consumer laws in your state?

I have already been to the ACCC but all their information is under the assumption that terms and conditions were supplied.

I have found a section on 'misleading conduct' where my situation could fall under 'Silence'. But it's just a short paragraph and I don't know if it applies to me.

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What is misleading or deceptive conduct?
Conduct includes actions and statements, such as:

• advertisements
• promotions
• quotations
• statements
• any representation made by a person.

Business conduct is likely to break the law if it creates a misleading overall impression among the intended audience about the price, value or quality of consumer goods or services.

Whether a business intended to mislead or deceive is irrelevant; what matters is how their statements and actions, the business conduct, could affect the thoughts and beliefs of a customer.

Silence
A business can break the law by failing to disclose relevant facts to you.

Silence can be misleading or deceptive when:

• one person fails to alert another to facts known only to them, and the facts are relevant to the decision
• important details a person should know are not conveyed to them
• a change in circumstance meant information already provided was incorrect.

Whether silence is misleading or deceptive will depend on the circumstances of each case.

For example – when silence can be misleading:

• A restaurateur is selling her restaurant. When asked the reason for sale, she does not mention that she is selling because a similar restaurant is opening nearby.
• A consumer who lives in a regional area is buying a mobile phone. The phone salesman know where the consumer lives but fails to tell him that the coverage is poor in that area.

 

[Clancy]

Ok that section on 'silence' looks clear cut too me? The seller has a list of terms and conditions that they kept 'silent' about until after you made the purchase.

That example of the restaurateur is bad though! Just try proving what someone 'knew' in their mind in court (about another store opening)? Huh. You would have to have real evidence to support the claim that they knew the other store was opening..... actually on second thought, i keep forgetting this is Australia, and you don't need evidence in court, you just need to convince the judge it is reasonably believable that they knew.