WA Contract Law - Refusal of Breast Augmentation Refund - What to Do?

[Kristen Bertolini]

I had paid a deposit of $2000.00 for surgery and another $200.00 for the consult fee to a Plastic Surgeon for a breast augmentation.

Due to health reasons, i am no longer able to undergo the surgery and sent them an email stating this and for a possible refund of the deposit. They are refusing to refund the money even though an email did state this is non refundable, although given this, i have not signed any consent, registration or any documents at all, have not had any consultations with the doctor and have given more than 2 months notice of cancellation.

Can they continue to refuse the money even though there has only been communication through email? Under Contract Law, is this a form of entering of contract even though I have not signed anything? Is there anything I can do to get the deposit back through Australian Consumer Law?

 

[Sarah J]

Hi Kristen,

The Australian Consumer Law ("ACL") does not actually deal with deposits. Unfortunately, not every consumer can get back their deposit just because they cannot receive the service/goods. This is actually covered by your contract. If you signed a contract (or agreed verbally) that states you will not get your deposit refunded, then unfortunately, you are bound by this. This is the whole point of having a contract and the deposit term is not an unfair term or against the ACL.

As a matter of good will, some businesses will refund the deposit. However, they are not obliged to. Although you may not have received anything tangible in exchange for the $2,000, there may be some effort/time already spent by the medical centre/doctor (i.e. preparation or part performance) that justifies why the $2,000 should be kept. For example, you may have reserved the surgeon and other medical personnel for this time (and your consultations), there may have been administrative matters gone toward your case, certain resources may have been set aside for you. This can also be seen as an "opportunity cost" they incurred.

My recommendation is to negotiate with them.

If you still believe you have a case to get the deposit back, you can try and speak with Consumer Protection WA or a lawyer recommended to you here: Get Connected with the Right Lawyer for You - LawAnswers.com.au.