Opinions please on SNAD

[keysandcaps]

Afternoon all , Just would be interested in a few opinions on a radio i recently purchased , it was listed as new (other) , title and description stated NOS ( new old stock).

 Now the the radio was shown in its original polystyrene foam packaging , 3 pictures all up , 2 showing it in the packaging and one close up of the radio.

 Fantastic , Radio arrived as shown in the packaging , all good , very happy chappy ,

 now move forward a week and a half , seller lists more of the same radio as buy it now, has 6 listed , no problem , i buy all six ,

 when the 6 radios arrived , they had No packaging and they were just wrapped in plastic shopping bags with one layer  of bubble wrap.

 As these units are approx 30 years old and proving that an item of that age is in fact new old stock, I believe the packaging has a significant impact on the value .

What i suppose i am asking here is , do others think that, as they arrived with no packaging but loose and just wrapped in plastic shopping bags , do i have a reasonable expectation to be a bit more than disappointed here?

on a item of that age , the value does have a lot to do with the original packaging.

 I tried to sort it out with the seller involved but he just kept side stepping the issue and wouldnt give a direct response.

 I honestly think he threw out the original packaging and repacked them to make the parcel smaller for postage but he wont admit to any thing.

[horizon1907]

If you have tried that many times, I doubt if he is up for anymore discussion about it. I take it, you bought these Radios to sell on ? You may just have to sell em at a reduced cost, if that is the case.

[phorum_junkie* · Accepted solution]

All you can do is leave it up to Paypal. Open a dispute and emphasise that you only purchased because they were shown and listed as in the original packaging. If Paypal find in your favour then the seller will have no choice but to accept a return and if Paypal find against you all you can do is appeal and if that fails try a bank chargeback if you funded your payment with a credit card.

[keysandcaps]

well ,took it to dispute with paypal, seller still refused to do anything at all .

i rang paypal and explained exactly why i disputed them , they looked at the pictures in the listing and decided in my favour. Full refund my way 

 and one very big red dot for the seller

[tall_bearded01]

The test for ‘significantly’ not as described’ is - are the goods fit for the purpose for which they were purchased.

That is if you purchased the radios so you could use them, and/or give them to family and friends to use, then they are significantly as described, because the lack of the original packaging doesn’t impact on their intended use.

However you appear to have purchased them with the intention of resale, and as the resale value of vintage goods is significantly higher when they include the original packaging, just as long as the listing allowed for a reasonable inference that they were in their original packaging, then they are not significantly as described.

So what can you do? You could assert your right to reject the goods vide the Sales of Goods Act, and if the goods are successfully rejected then, not only do you get your money back (goods and delivery costs), but also, you are not liable for the cost of returning the goods to the seller. That is, if they want them back, it is up to them to make the necessary arrangements and pay the cost. However, should you chose this option it does come at a price. If the seller refuses to accept that the goods are not as described, then the only way you could then assert your rights, would be through the small claims court which comes at a cost, in both time and money; but when it comes to the money, if you re successful you should get most of that back. Unfortunately, if you paid by a means other than one of the safe payment options as provided on eBay, then this is the only recourse you have.

In the alternative, if you used PayPal or one of the other safe payment options, you can use them to obtain refund. Unfortunately, if you follow this course of action, then you will more likely than not be required to return the goods and pay for the return shipping cost out of your own pocket.

In the further alternative, if you want to keep the item, you can always attempt to negotiate a part refund on the basis that the goods received have a reduced value, and if the seller agrees, ever things done and dusted. However you need to be mindful that the safe payment options do have time limits in which to make a claim, and as such, you need to be wary of the seller who tries to protract the negotiations to the point where your ability to make a claim has expired.

Finally and for completeness sake, if you had purchased these goods after 1 November there would be no problem. No problem, because you could simply have lodged a dispute with eBay, who, if they agreed the item was not significantly as described would have refunded you the full initial cost (goods plus postage) and then, if the seller wanted the goods back, it would be up to them to foot the bill for the return postage. That is, you get pretty much the same outcome had you successfully rejected the goods under the Sales of Goods Act, with none of the hassles.

[i-love-my-sheep]

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@tall_bearded01 wrote:

 However, should you chose this option it does come at a price. If the seller refuses to accept that the goods are not as described, then the only way you could then assert your rights, would be through the small claims court which comes at a cost, in both time and money; but when it comes to the money, if you re successful you should get most of that back. 

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Hate to say it, but that's not right. The courts can order the costs be paid by the unsuccessful party, but there is no way to enforce it. If you know of some way to enforce it, please let me know!

I was dragged through Small Claims last year by a buyer who tried to claim significantly not as described,  I won and the buyer was ordered to pay all my legal and court costs (into the thousands). When we walked out, my solicitor said there is no way to enforce the other party to pay up. We could try and take her back to small claims, but it would just cost me more time and money and there would still be no way of getting any money from her. So, best to just walk away and pay my costs off over the next 12 months.

[tall_bearded01]

First of all, as you were the respondent you would not have incurred any “court costs” That is, as you were not only the respondent, but also the successful party, all the costs payable TO THE COURT in connection with bringing and pursuing the application would have been costs incurred by the buyer, and payable to the court by the buyer, and if they failed or refused to do so any, an debt recovery action would have been initiated by the court on behalf of the court against the buyer. That is, the only costs you would have incurred are the costs associated with responding to the application - your own legal costs and disbursements and here is where I think you came undone.

Small claims courts and tribunal are, for want of a better term, lawyer free zones, and as such if you engage the services of a lawyer, unless you had the prior approval of the court to do so, then win or lose you pay your own lawyer costs. This should have been explained to you by your lawyer from the outset. Furthermore, even if you did have the approval of the court to engage the services of a lawyer, and then won, not all of your lawyer costs are recoverable, and again, this should have been explained to you at the initial “free” consolation.

So this leaves disbursements, which are the ancillary costs you would have incurred in responding to the application. Photocopying documents, travel costs, time lost from work when attending hearings, that sort of thing, and these are the normal costs that a successful respondent should expect to recover.

People will only have confidence in the process if, when successful they get the benifit of the outcome. Therefore the court has vested interest in ensuring that its decisions are not only enforceable but also enforced, and again, as this an enforcement issue in connection with a small claim, you do not need a lawyer to do it for you.

The first thing you need to do is write to the buyer, providing them with an invoice as to the cost you incurred and want reimbursed, an giving them 21 days to pay. If they don’t pay, then get go back to the registrar and ask then what you need to do to get your costs taxed, and they will then guide you through that process.

The point I’m trying to make is, the system is set up so you can do this sort of thing without a lawyer. Furthermore, if you don’t use a lawyer then the actual costs are minimal. Finally once the costs have been taxed and the court has issued an order that they be paid, then the only way the buyer can avoid paying them is get themselves declared bankrupt, which in itself is not an easy thing to do, and if successful comes with a lot adverse legal and financial baggage. Yes the buyer can cry poor, but this only means a court may be allowed them to pay the debt by instalments but you still get paid.

Finally and for completeness sake, if you are going to make a living out of selling goods then it might be a good idea to get an understanding of the legal environment you are in, which includes the possibility of initiating and/and or responding to small claims. That is, small claims are a part and parcel of doing business and you need to know how to deal with them. Therefore I recommend that you at the very least buy a current copy of “Australian Mercantile Law’, and then go to your local court and library and get your hands on whatever free literature you can on lodging and responding to small claims.

Knowledge is power.

[modestbods]

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@tall_bearded01 wrote:

First of all, as you were the respondent you would not have incurred any “court costs” That is, as you were not only the respondent, but also the successful party, all the costs payable TO THE COURT in connection with bringing and pursuing the application would have been costs incurred by the buyer, and payable to the court by the buyer, and if they failed or refused to do so any, an debt recovery action would have been initiated by the court on behalf of the court against the buyer. That is, the only costs you would have incurred are the costs associated with responding to the application - your own legal costs and disbursements and here is where I think you came undone.

Knowledge is power.

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Sorry t_b01, but you are mistaken.

Whilst it is normally the case that the successful party doesn't usually have costs awarded against them, it's the norm, not the absolute rule.

For example, if during the conciliation/pre-hearing phase of proceeedings a successful litigant had refused a settlement offer that was equal to or less than they were ultimately awarded (and if there were'nt any objectionable/unreasonable settlement conditions attached), then they may well (and are very likely to) have costs ruled against them in the event a costs order is sought. There are also other grounds on which a successful party may have costs awarded against them at the courts discretion for 'some sort of disentitling conduct'. (And btw, the buyer's costs 'to the court' becomes the sellers costs if the buyer successfully seeks a cost order against the seller.)

[8-0030] Displacing the presumption that costs follow the event

The principle is that the presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party... The disentitling conduct does not necessarily need to amount to misconduct, and may simply be any conduct “calculated to occasion unnecessary expense”:... Departure from the ordinary rule is to be approached having regard to the idea of fairness underlying the making of any costs order:..

Campbell JA in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) [2011] NSWCA 256 at [97]-[98], examined when a court may properly depart from the usual order as to costs by citing the following non-exhaustive list of examples of a successful plaintiff’s “misconduct” as compiled by McHugh J in Oshlack v Richmond River Council (1998) 193 CLR 72 at [69]:

• by its lax conduct the successful party effectively invited the litigation

• the successful party unnecessarily protracted the proceedings

• the successful party prosecuted the matter solely for the purpose of increasing the costs recoverable

• the successful party had obtained relief which the unsuccessful party had already offered in settlement of the dispute.

However, Campbell JA in Tomanovic, at [98], considered that this statement of principle still left a discretion as to whether, in any particular case that falls within the scope of these examples, it is still appropriate for the court to actually depart from the usual order as to costs.

The court must not exercise its discretion to award costs against a successful party arbitrarily or capriciously, or on no grounds at all:... The discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”: Williams v Lewer [1974] 2 NSWLR 91 at 95.

http://www.judcom.nsw.gov.au/publications/benchbks/civil/costs.html#p8-0030

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@tall_bearded01 wrote:

Small claims courts and tribunal are, for want of a better term, lawyer free zones, and as such if you engage the services of a lawyer, unless you had the prior approval of the court to do so, then win or lose you pay your own lawyer costs. This should have been explained to you by your lawyer from the outset. Furthermore, even if you did have the approval of the court to engage the services of a lawyer, and then won, not all of your lawyer costs are recoverable, and again, this should have been explained to you at the initial “free” consolation.

Knowledge is power.

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Sorry again t_b01, but you are mistaken once more. Either party can seek an order for costs, including for lawyer costs... but lawyer costs that can be sought are capped at a maximum rate depending on the size of the claim that the case was for (as shown below)

Legal costs

Filing fee and service costs

You will have to pay a fee to start a case in the Small Claims Division of the Local Court. This is $93.00 for an individual and $186.00 for a corporation (as at July 2014). Check the list of current court fees on the Local Courts website. Unless you serve the Statement of Claim yourself, you will also have to pay a service fee.

You can claim these costs back in your Statement of Claim. The maximum you can claim back for a service fee is $62.00 (as at July 2014).

Professional (lawyer’s) costs

You will not usually be entitled to professional costs if you are representing yourself.

If the other side is represented by a lawyer, and you lose the case, you will probably have to pay costs. If you are represented by a lawyer, and you win your case, the court will probably order that the other side pay your costs.

In the Small Claims Division of the Local Court there is a limit on the amount of lawyer's costs you can be awarded or ordered to pay, at the end of a hearing, for a fixed or specific claim of money (called a liquidated claim). As at July 2014, these costs (including GST) are: 

Amount of ClaimMaximum Costs

$0.01-$1000	$383.68
$1000.01-$5000	$575.52
$5000.01-$10 000	$767.36

Costs can also be awarded against a party if they do anything that causes a delay.

http://www.lawassist.lawaccess.nsw.gov.au/lawassist/recovery_of_goods/getting_your_goods_back/legal_...

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@tall_bearded01 wrote:

Knowledge is power.

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Indeed, it is. 

[modestbods]

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@modestbods wrote:

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Sorry t_b01, but you are mistaken.

Whilst it is normally the case that the successful party doesn't usually have costs awarded against them, it's the norm, not the absolute rule.

For example, if during the conciliation/pre-hearing phase of proceeedings a successful litigant had refused a settlement offer that was equal to or less more than they were ultimately awarded (and if there were'nt any objectionable/unreasonable settlement conditions attached), then they may well (and are very likely to) have costs ruled against them in the event a costs order is sought. There are also other grounds on which a successful party may have costs awarded against them at the courts discretion for 'some sort of disentitling conduct'. (And btw, the buyer's costs 'to the court' becomes the sellers costs if the buyer successfully seeks a cost order against the seller.)

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oops, typo... edited* 

[modestbods]

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@modestbods wrote:

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@tall_bearded01 wrote:

First of all, as you were the respondent you would not have incurred any “court costs” That is, as you were not only the respondent, but also the successful party, all the costs payable TO THE COURT in connection with bringing and pursuing the application would have been costs incurred by the buyer, and payable to the court by the buyer, and if they failed or refused to do so any, an debt recovery action would have been initiated by the court on behalf of the court against the buyer. That is, the only costs you would have incurred are the costs associated with responding to the application - your own legal costs and disbursements and here is where I think you came undone.

Knowledge is power.

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Sorry t_b01, but you are mistaken.

Whilst it is normally the case that the successful party doesn't usually have costs awarded against them, it's the norm, not the absolute rule.

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Oh, and just to be clear t_b01, I do understand how you made the mistake,as it's an easy one to make.

True, a successful respondent isn't going to have costs found against them on the grounds of failing to settle reasonably given a settlement offer would involve them providing at least some form of relief to the plaintiff, whilst if the respondent wins the case this means they will not be required to provide any form of relief to the plaintiff, thereby automatically voiding such a costs order from being made against a successful respondent solely on grounds of their failing to settle reasonably. This doesn't however preclude their having costs found against them on the grounds of some other 'disentitling conduct' on their part... and so your error was simply in failing to realize/recognize this.

[tall_bearded01]

Having filed more offers to put costs at issue than I can count, I think I have a rudimentary understanding of how to reverse the presumption, but that didn’t apply to the facts as presented here. That is, the advice provide was tailored to the facts as presented, namely: The seller was the respondent. The matter went to trial. The respondent was successful. The respondent was awarded costs. Therefore, the fact that, in some instances a successful respondent may have costs awarded against then, in the context of the facts as provided, was consider irrelevant.

As for legal costs, why the lawyer was there in the first instance was not made clear. Furthermore, I was not made aware as to in which state the case was heard, and the ability to recover costs very significantly from state to state. For instance here, in South Australia when it comes to minor claims “Parties are not entitled to legal representation except in special circumstances”  So forgive me if I used generalities in attempting to drive home the point that, if it’s a minor claim, try to steer well clear lawyers, because, even if you win, you may find yourself unpleasantly surprised in the amount of legal cost you actually get back.