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  • FIRST POST
    • onyx911
    • By onyx911 8th Jun 17, 7:51 PM
    • 31Posts
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    onyx911
    Ombudsman rejected S75 Claim for £12,250.What next?
    • #1
    • 8th Jun 17, 7:51 PM
    Ombudsman rejected S75 Claim for £12,250.What next? 8th Jun 17 at 7:51 PM
    The complaint related to a kitchen ordered through a local kitchen store. The kitchen ordered on 14 December 2015 was by a well known manufacturer. The price for the kitchen and appliances were £24,500 and the deposit paid on 14 December 2015 was £12,250. The deposit was paid by Tesco Mastercard (£250) and debit card (£12,000). The Seller required 12 weeks notice to place the order with the manufacturer. At this stage, the Seller was well aware that we were in the early stages of a construction project to extend our house and kitchen.
    Due to very poor workmanship, the building project was halted in April 2016 and the builder's contract terminated. The builder had not complied with any of the Building Regulations and the Local Council required the partially completed extension to be demolished and rebuilt. I was out over £26,000 and therefore entered into litigation with the builder and private building control inspector in August 2016. The Seller was kept informed of events at regular intervals. The litigation was settled almost in full in January 2017.

    I notified the Seller in November 2016 that a new builder had been appointed and the building project would commence in January 2017. At this stage of our litigation, the settlement negotiations were well underway and we were able to appoint a new builder.

    On 5 November 2016 I received an e mail from the Seller notifying me that certain doors/units we had ordered are no longer available and those parts of the kitchen design would need to be amended. I met with the Sellerís design manager on the 26 November 2016 and discussed various proposals, none of which I accepted but stated that I was open to further suggestions. The Seller suggested that an alternative supplier could make the kitchen but the price of the kitchen had gone up by £2,400. The new manufacturer is one that I had never heard of whereas the one previously selected was is a widely recognised kitchen brand.
    I informed him that we did not want to proceed with the alternative brand and required the refund of our deposit.
    In the e mail dated 14 December 2016, I stated that this sale is covered by the Consumer Rights Act 2015. Under Chapter 2, Section 11, the goods are to be as described and any changes made after entering into a contract are not effective unless expressly agreed between the consumer and trader. The material changes here are the change of manufacturer of the new units and the significant price difference between the price we agreed. Essentially, we are no longer being offered the kitchen we contracted to buy.
    The Seller has refused to refund the deposit.
    I then made a claim to Tesco Mastercard in January 2017 under Section 75 of the Consumer Credit Act 1974. Tesco responded with their final decision and have also refused to refund the deposit on the basis that they do not believe the Seller has breached the contract. Tesco are also relying on various terms of the Contract which do not comply with the Consumer Rights Act 2015 and therefore cannot be enforced for example the seller's right to charge an increased price and substitute the product. I then made a claim to the Financial Ombudsman I set out below the basis of Tescoís refusal and why I believe them to be incorrect.
    Tesco state that they are unable to see where the merchant has breached or misrepresented the contract. They failed to consider the clauses of the Consumer Rights Act that I had pointed them to.


    1. The Consumer Rights Act 2015 Chapter 2, Section 11 states that the goods are to be as described and any changes made after entering into a contract are not effective unless expressly agreed between the Consumer and Trader.


    3 Part 2 Section 62 (1) of the Consumer Rights Act 2015 states that an unfair term of a consumer contract is not binding on the customer. Schedule 2 of the Consumer Rights Act 2015 deems the following may be unfair, (12) allowing the trader to decide the characteristics of the subject matter of the contract after the consumer is bound, (14) allowing the trader discretion to set the price after the consumer is bound, where no price or method of determining the price is agreed when the consumer is bound, (15) allowing the trader to increase the price of goods without giving the consumer the right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded.

    Part 2 Section 62 (4) of the Consumer Rights Act 2015 states that a term is unfair, if contrary to the requirement of good faith, it causes a significant imbalance in the partiesí rights and obligations under the contract to the detriment of the customer.

    It appears both Tesco and the Ombudsman are looking purely at whether there was any wrong doing on the part of the retailer. They maintain that the retailer did nothing wrong in this instance. We donít disagree however it seems clear that the change of product and increased cost do not comply with the Consumer Rights Act. We surely canít be bound to a contract where the item we contracted to buy isnít available and the seller can substitute it for any other brand and at any other cost and we just have to pay? The increase in £2,400 being 10% is no small amount.

    Any advice would be appreciated.
Page 2
    • onyx911
    • By onyx911 9th Jun 17, 11:24 AM
    • 31 Posts
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    onyx911
    Get my act together? I paid a builder that did such a bad job, the whole thing extension had to be demolished!! That wasn't my choice or being fussy, it was a building regulations requirement.

    We were victims in this. I would love for the project to have been completed as soon as we put the deposit down on the kitchen. Can you imagine living on an unfinished building site with two small kids??

    You don't have to agree with my position at all but there is no need to be so rude either. You have no idea what my family has gone through.
    • martinsurrey
    • By martinsurrey 9th Jun 17, 11:39 AM
    • 2,895 Posts
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    martinsurrey
    Get my act together? I paid a builder that did such a bad job, the whole thing extension had to be demolished!! That wasn't my choice or being fussy, it was a building regulations requirement.

    We were victims in this. I would love for the project to have been completed as soon as we put the deposit down on the kitchen. Can you imagine living on an unfinished building site with two small kids??

    You don't have to agree with my position at all but there is no need to be so rude either. You have no idea what my family has gone through.
    Originally posted by onyx911
    Sorry, from a contract point of view you need to keep your personal life and your relationship with your builder separate from your relationship with the kitchen supplier.

    You are the victim in the builder client relationship, but that is 100% separate, both morally and legally from the contract with the kitchen folk. If you are going to take this to court, the other dispute doesn't matter.

    The facts of this are that you signed a contract, and that contract has become complicated by the actions of you via your agents, the court could be more willing to look on the retailer as the victim in this contract.
    • Moneyineptitude
    • By Moneyineptitude 9th Jun 17, 11:40 AM
    • 18,736 Posts
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    Moneyineptitude
    We were victims in this. I would love for the project to have been completed as soon as we put the deposit down on the kitchen. Can you imagine living on an unfinished building site with two small kids??
    Originally posted by onyx911
    I'm sorry, but after trying and failing to get Tesco to pay up for an alleged breach of contract, you now want the retailer who had no part in your construction problems to take a financial hit?



    Why are you not chasing this builder for your consequential losses?
    • GDB2222
    • By GDB2222 9th Jun 17, 11:51 AM
    • 13,823 Posts
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    GDB2222
    If I cancelled the contract then surely I should have my money back?? This is the crux of the dispute, that I'm not able to cancel the contract. If I was able to cancel the contract I wouldn't be writing this post.

    Also, I don't want them to re-start the work. I want a refund.
    Originally posted by onyx911
    What makes you think that you *ought* to be able to cancel a valid contract and get your deposit back? What sort of a one-sided contract would that be if it's binding on the seller but not the buyer? That is the crux of the dispute.

    The real problem is that the kitchen is coming from abroad, and the Pound has fallen. That has pushed up the cost, unfortunately. Somebody has to pay for it, and that somebody is you. Sorry.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • onyx911
    • By onyx911 9th Jun 17, 11:54 AM
    • 31 Posts
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    onyx911
    Because the product is not available! Simple as that. If the kitchen hadn't been discontinued then we would have completed the sale. We didn't simply change our mind.
    • GDB2222
    • By GDB2222 9th Jun 17, 12:03 PM
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    GDB2222
    Because the product is not available! Simple as that. If the kitchen hadn't been discontinued then we would have completed the sale. We didn't simply change our mind.
    Originally posted by onyx911
    But it was available. You simply needed to arrange storage until your extension was completed.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • onyx911
    • By onyx911 9th Jun 17, 12:07 PM
    • 31 Posts
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    onyx911
    Which we may have done if we had been told the units were being discontinued. Incidentally the Seller knew this fact but didn't tell us until afterwards. They also had £12,500 to purchase the units in question.
    • onyx911
    • By onyx911 9th Jun 17, 12:09 PM
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    onyx911
    I think you guys are really scrapping the barrell now on ways to criticise me. The company said tell us when you are 12 weeks from completion. We told them what was happening with the build at regular intervals.

    Store the kitchen
    • powerful_Rogue
    • By powerful_Rogue 9th Jun 17, 12:30 PM
    • 2,971 Posts
    • 4,322 Thanks
    powerful_Rogue
    Store the kitchen
    Originally posted by onyx911
    You find the idea of storing the kitchen comical, yet you complain that the retailer didn't do this exact thing.

    They also had £12,500 to purchase the units in question.
    Originally posted by onyx911
    • GDB2222
    • By GDB2222 9th Jun 17, 12:30 PM
    • 13,823 Posts
    • 73,607 Thanks
    GDB2222
    I think you guys are really scrapping the barrell now on ways to criticise me. The company said tell us when you are 12 weeks from completion. We told them what was happening with the build at regular intervals.

    Store the kitchen
    Originally posted by onyx911
    We obviously don't have all the details. Do please tell us what your barrister advises. However, if you originally contracted to take delivery of the units on a particular date and then changed your mind (for reasons outside your control), it's really difficult not to have sympathy with the seller. So, yes, storing the units was a perfectly feasible way to comply with your side of the contract.
    No reliance should be placed on the above! Absolutely none, do you hear?
    • lovinituk
    • By lovinituk 9th Jun 17, 12:33 PM
    • 5,244 Posts
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    lovinituk
    Why on earth are you even posting here if you have a barrister to call on for advice?!
    The following is my forum signature and not necessarily a response to your post:
    "To be truly successful you must live a few years of your life like others wonít so you may live the rest of your life like others canít"
    • Manxman in exile
    • By Manxman in exile 9th Jun 17, 12:36 PM
    • 495 Posts
    • 308 Thanks
    Manxman in exile

    Why are you not chasing this builder for your consequential losses?
    Originally posted by Moneyineptitude

    I was wondering about that. Is it too late now? The OP says that litigation against the original builder was settled in January 2017, but doesn't say how.
    • onyx911
    • By onyx911 9th Jun 17, 12:36 PM
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    onyx911
    I took the advice of a couple of posters to seek legal advice. What's wrong with that?
    • lovinituk
    • By lovinituk 9th Jun 17, 12:37 PM
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    lovinituk
    I took the advice of a couple of posters to seek legal advice. What's wrong with that?
    Originally posted by onyx911
    And what have they advised, out of interest?
    The following is my forum signature and not necessarily a response to your post:
    "To be truly successful you must live a few years of your life like others wonít so you may live the rest of your life like others canít"
    • onyx911
    • By onyx911 9th Jun 17, 12:38 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    I was wondering about that. Is it too late now? The OP says that litigation against the original builder was settled in January 2017, but doesn't say how.
    Originally posted by Manxman in exile
    Exactly that. We settled the claim before we knew about these losses. Part of the settlement agreement was not to bring further claims.
    • onyx911
    • By onyx911 9th Jun 17, 12:39 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    And what have they advised, out of interest?
    Originally posted by lovinituk
    I have sent across all the information for the direct access barrister and have a call next week. When we litigated against the building control company and builder, I found the direct access barrister far cheaper than any firm of solicitors I approached.
    • onyx911
    • By onyx911 9th Jun 17, 12:40 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    We obviously don't have all the details. Do please tell us what your barrister advises. However, if you originally contracted to take delivery of the units on a particular date and then changed your mind (for reasons outside your control), it's really difficult not to have sympathy with the seller. So, yes, storing the units was a perfectly feasible way to comply with your side of the contract.
    Originally posted by GDB2222
    There was no date. We had just started the extension and the company said they won't place the order until we give them a completion date. We never got to that stage.
    • onyx911
    • By onyx911 9th Jun 17, 12:42 PM
    • 31 Posts
    • 2 Thanks
    onyx911
    You find the idea of storing the kitchen comical, yet you complain that the retailer didn't do this exact thing.
    Originally posted by powerful_Rogue
    I asked why they didn't order the units being discontinued when they were aware. That was 4 units. I would have stored those if they couldn't.
    • lovinituk
    • By lovinituk 9th Jun 17, 12:43 PM
    • 5,244 Posts
    • 5,877 Thanks
    lovinituk
    I have sent across all the information for the direct access barrister and have a call next week. When we litigated against the building control company and builder, I found the direct access barrister far cheaper than any firm of solicitors I approached.
    Originally posted by onyx911
    So you had access to them before posting here? Still begs the question as to why bother asking a bunch of strangers here rather than going directly back to the excellent barrister again?!

    You haven't got the answers you wanted to hear here so why not leave it to the professionals?
    The following is my forum signature and not necessarily a response to your post:
    "To be truly successful you must live a few years of your life like others wonít so you may live the rest of your life like others canít"
    • Manxman in exile
    • By Manxman in exile 9th Jun 17, 12:46 PM
    • 495 Posts
    • 308 Thanks
    Manxman in exile
    Exactly that. We settled the claim before we knew about these losses. Part of the settlement agreement was not to bring further claims.
    Originally posted by onyx911

    Unless the barrister you're seeing reckons you've got a good chance then I think you're going to have to reach some sort of compromise with the kitchen supplier to provide a less than perfect (in your eyes) kitchen. Sounds like a mess. Not all messes can be resolved without some compromise.
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