NSW Cancelled Order from DIY Superstore - Refund?

[welchap]

Hi
I am having difficulty getting a refund from a company / website called DIY Superstore (an online store linked to Hunterstone PTY Ltd) - the situation is below (sorry it's long winded).

I ordered some pavers from DIY Superstore and paid for them upfront (>$3000). On the order I stated that I needed them delivered on (or around) a certain date - which was after their minimum 2 week turnaround. They called me to say they couldn't get the product I ordered by then so I changed the order - which they said would be no problem. The week I expected delivery (I hadn't heard anything), I called them and they said they were out of stock and it would be another 4 weeks before I could get them as they were expecting a shipment from overseas. I explained that I couldn't wait as our landscapers needed them that week as previously agreed. I asked if I could cancel the order and the person I spoke to said this was fine and I should email and he would forward to accounts.

Since then accounts have fobbed me off for 4 weeks - each time I speak to them they have said the boss needs to approve it and he is never in the office. Today finally I got another response from them - "after discussion with the boss, I have been asked to let you know that as the terms and conditions state there will be a fee for cancellation"

Now - the T&C's I signed up to on ordering actually state :- "5.5 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then DIY shall be entitled to charge a reasonable fee for redelivery and/or storage."
and
"11.10 DIY may in its absolute discretion accept non-defective Goods for return in which case DIY may require the Customer to pay handling fees of up to forty-five percent (45%) of the value of the returned Goods plus any freight costs."

So, no goods have ever been tendered for delivery. They were unable to meet our delivery requirements and unable to deliver the product we ordered. Equally as we haven't received any goods, we haven't returned any.

Can someone please advise whether they have any legal argument under Australian Consumer Law to require a fee for cancellation in this case?

We had to source the pavers from another supplier for almost double the cost - which is fine as we needed to get the job finished - but I can't afford to lose another $3k on top of this.

Any advice, assistance is much appreciated.

 

[Sophea]

Hi,
Is the company relying on clause 5.5 to refuse your full refund? It is unclear whether this clause is to prevent a situation where the purchaser is not at home when they make delivery of the product, costing DIY money for redelivery or whether it seeks to create a right for DIY to simply deliver the product whenever they want and you are required to pay for it, even if there is an unreasonable delay in them doing so.

If it is intended to refer to the latter, it may be an unfair contract term (which a court would ultimately need to decide). A term will be held to be unfair and struck out if for example it:

• Causes a significant imbalance between your rights and obligations and those of the business
• not reasonably necessary to protect the legitimate interests of the business
• would cause the consumer detriment (financial or non-financial) if the business tried to enforce it

However, I think you have a good shot at simply arguing that there has been a failure of consideration - ie. you didn't receive the product within a reasonable time and you are entitled to a refund.

I would draft a firm letter of demand for the return of your $3,000 threatening further action and a claim to the ACCC. I would in the meantime also contact the ACCC and talk to them about your rights. They may be able to shed more light on the situation for you.

 

[welchap]

hi Sophea

Thanks for taking the time to reply - I really appreciate it. I have sent them a strongly worded email regarding the applicability of the terms in this case. I have just followed up with a phone call and they told me they will be giving a refund later today - hopefully this is done and it is in full !

Thanks again

Andy

 

[Michael Corum]

Well done

 

[Sophea]

All the best with it welchap!