Claiming under section 75?

Surfer

Towards the end of May 2014 we ordered a new caravan and paid a deposit of £200 by Credit Card over the phone as the dealer was about 100 miles away. When we never received any paperwork for the transaction, we chased up the dealer and they emailed us a copy of the the top page of the order and nothing else. No T & Cs etc. My signature is not on this piece of paper or any piece of paper that they may have in their possession. On the top copy it does state no refunds on deposits plus the VIN number of the caravan, but we were not told this when we placed the order. Delivery was due for 24th June 2014.
On or around the 13th June I had a query and at the same time I asked if the caravan was a brand new caravan or a demonstrator. They admitted it was a demonstrator, but arranged to get a factory fresh caravan ready for the 24th June. We have never received any paperwork regarding a new order to cover the caravan with a different VIN number.
As it happened on the 23rd we had a phone call which may have an effect on our personal income plus the fact we found out that construction of the caravan was different to what we understood it to be. (No fault of the dealer as misunderstanding on our part). On the morning of the 24th prior to the caravan being made ready for collection, we contacted the dealer and verbally cancelled the transaction. This was followed up by email and acknowledged by the dealer, however we have heard nothing since although we have chased it up.
Under the Distance Selling Regulations they have 30 days to refund and at this point in time they have 6 days left for the refund.
As we cancelled, if the dealer does not want to refund, can we still claim under Section 75 of the Consumer Credit Act or should we be chasing the dealer under the Distance Selling Regulations?

jonesMUFCforever

I think you are on very shaky ground to ask for any refund. You could be sued for any losses the seller incurs in selling the caravan to somebody else - IMO write off the £200 and hope for the best.

g6jns_2

Surfer wrote: »

Towards the end of May 2014 we ordered a new caravan and paid a deposit of £200 by Credit Card over the phone as the dealer was about 100 miles away. When we never received any paperwork for the transaction, we chased up the dealer and they emailed us a copy of the the top page of the order and nothing else. No T & Cs etc. My signature is not on this piece of paper or any piece of paper that they may have in their possession. On the top copy it does state no refunds on deposits plus the VIN number of the caravan, but we were not told this when we placed the order. Delivery was due for 24th June 2014.
On or around the 13th June I had a query and at the same time I asked if the caravan was a brand new caravan or a demonstrator. They admitted it was a demonstrator, but arranged to get a factory fresh caravan ready for the 24th June. We have never received any paperwork regarding a new order to cover the caravan with a different VIN number.
As it happened on the 23rd we had a phone call which may have an effect on our personal income plus the fact we found out that construction of the caravan was different to what we understood it to be. (No fault of the dealer as misunderstanding on our part). On the morning of the 24th prior to the caravan being made ready for collection, we contacted the dealer and verbally cancelled the transaction. This was followed up by email and acknowledged by the dealer, however we have heard nothing since although we have chased it up.
Under the Distance Selling Regulations they have 30 days to refund and at this point in time they have 6 days left for the refund.
As we cancelled, if the dealer does not want to refund, can we still claim under Section 75 of the Consumer Credit Act or should we be chasing the dealer under the Distance Selling Regulations?

It sounds very unlikely that you have any claim. You cancelled the order due to your mistake.

grumbler

Non-refundable deposits are very common. What would be the purpose of the deposit if it was refundable should you change your mind?

The question is: can you sue the supplier for this deposit? If you believe that you can, then you can claim from the CC company instead.

chattychappy

"non-refundable" or not, the law (including DSRs) trumps this.

Was the caravan built to order or in any way personalised?

Surfer

chattychappy wrote: »

"non-refundable" or not, the law (including DSRs) trumps this.

Was the caravan built to order or in any way personalised?

The caravan was not built to order and we never viewed at at all although we did view one at another dealership. The caravan was re-sold within a week of us cancelling.

chattychappy

From what you say, I believe you were indeed within your rights to cancel under the DSRs.

However it really is a moot point whether S75 would help. I assume you meet the other requirements (value of caravan < £30K, paid directly with the CC and you are the main cardholder).

The problem is that S75 makes the CC jointly liable for breach of contract or misrepresentation. It doesn't make the CC a party to the deal itself. Here the supplier is breaching a statutory right rather than a contractual right.

Some legislation operates by implying terms and conditions into a contract - eg SOGA 1979. So if something isn't fit for purpose, it is indeed a breach of contract and via S75 the CC is on the hook.

DSRs don't operate this way. They give you a right to cancel a contract. If, because of the DSRs, your cancellation/refund rights were made clear at the time of purchase then (at a push) you can argue that there was a breach of contract (or a misrep) on the basis that these rights were incorporated into the contract as terms and conditions. But if nothing was said, then DSRs would still apply as a matter of law but I think you can't argue that there was a breach of contract/misrep.

I'm not aware of any precedent setting case on this - willing to stand corrected.