Ombudsman rejected S75 Claim for £12,250.What next?

angryparcel

onyx911 wrote: »

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 don’t disagree however it seems clear that the change of product and increased cost do not comply with the Consumer Rights Act. We surely can’t be bound to a contract where the item we contracted to buy isn’t 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.

but the retailer has done nothing wrong, you stopped the work, so cancelling the contract, so no contract to bind them too. you are lucky the retailer is willing to still use the deposit you originally paid as they would be in their rights to ask for another deposit as when you want them to start again it will form a new contract.

onyx911

The Ombudsman ruled in Tesco Finance's favour as it was a S75 claim against the credit card. The kitchen seller has been on the sidelines and not aware of the Ombudsman claim.

onyx911

Wow, you think I'm lucky not to have forfeited a £12.5k deposit? Are you for real? Are you confusing the contract with the builder and the kitchen seller?

neilmcl

The CC company are not interested because the seller has done nothing wrong in terms of breaching your statutory rights, which you accept, yes?

The issue is now whether you can cancel the contract and get your deposit (in full) back. This has nothing to do with the Tesco and if the seller refuses to act you first post of call is to write an LBA to get it refunded, and if that fails you need to take legal action to get it back. Bear in mind that whilst the deposit should be refundable the seller may in fact be allowed to deduct a reasonable amount to cover any losses they've incurred.

onyx911

Thank you, finally a reasoned reply. Yes, I agree the seller has done nothing wrong. It does appear that the CC company and Ombudsman were specifically looking for evidence of wrong doing by Seller rather than whether the contract terms are unfair which is what we argued.

As far as I am concerned the key features of the kitchen becoming unavailable means the contract has been frustrated and needs to end. I simply want my deposit back. I would have paid a reasonable amount for their time but bear in mind the design fee was separate to the deposit and contract cost.

I do think as the seller can't supply the kitchen we ordered, they should return the deposit rather than forcing us to accept store credit for an alternative kitchen. You have to remember these are not fixed priced items and the seller is able to put any price they want on the alternative products. The Consumer Rights Act specifically mentions this scenario as being unfair.

I have an appointment with a direct access barrister next week (cheaper than solicitor). I'll update when I have spoken to him.

martinsurrey

onyx911 wrote: »

As far as I am concerned the key features of the kitchen becoming unavailable means the contract has been frustrated

Be careful what you argue...

The contract has been frustrated by you and your contractors actions, not by the retailer, you might find a judge is far less sympathetic on a customer who held an order for a kitchen for 15 months, untill such as time as it was impossible for the retailer to comply.

What did the contract say in relation of delays in program and supplier price changes?

naedanger

onyx911 wrote: »

Thank you, finally a reasoned reply. Yes, I agree the seller has done nothing wrong. It does appear that the CC company and Ombudsman were specifically looking for evidence of wrong doing by Seller rather than whether the contract terms are unfair which is what we argued.

As far as I am concerned the key features of the kitchen becoming unavailable means the contract has been frustrated and needs to end. I simply want my deposit back. I would have paid a reasonable amount for their time but bear in mind the design fee was separate to the deposit and contract cost.

I do think as the seller can't supply the kitchen we ordered, they should return the deposit rather than forcing us to accept store credit for an alternative kitchen. You have to remember these are not fixed priced items and the seller is able to put any price they want on the alternative products. The Consumer Rights Act specifically mentions this scenario as being unfair.

I have an appointment with a direct access barrister next week (cheaper than solicitor). I'll update when I have spoken to him.

It seems to me that your only option now, if you wish to fight the decision, is to take the matter to court.

I think you have two legal options. (1) Accept (under protest) the alternative kitchen and pay the excess then seek to recover that excess via the small claims court. (2) Sue for the return of your deposit.

If the resolution you are seeking is a return of your deposit then I think the amount you are claiming is above the limit for the small claims court so I think it would be worth first consulting a solicitor to get a view of your chances of success and to understand the costs involved if you win or if you lose.

I have highlighted in bold a bit in your above post which I think may be wrong. I think the CRA actually says the practice MAY be unfair. So it is possible the practice is not unfair. I would not be that confident in your circumstances that the price increase would be regarded as unfair. If the other party can show the cost increase has arisen because of the long delay I think a court would view it as reasonable. (Had the delay always been envisaged by both parties then I think it might be different. In that case I think a price review should have been specified in the contract to be fair to both parties. But even then I would not be that confident of winning.)

Personally I think I would pay the increase.

onyx911

Thank you Naedanger. I am seeking advice from a barrister and if our chances of success are slim then we will of course have to pay the increase.

Whilst I accept that it isn't the seller's fault and have never said otherwise, I still can't believe I can be tied to a contract that is now un-affordable (several thousands pounds more) rather than get money back and buy a cheaper kitchen.

martinsurrey

onyx911 wrote: »

Thank you Naedanger. I am seeking advice from a barrister and if our chances of success are slim then we will of course have to pay the increase.

Whilst I accept that it isn't the seller's fault and have never said otherwise, I still can't believe I can be tied to a contract that is now un-affordable (several thousands pounds more) rather than get money back and buy a cheaper kitchen.

but you think its okay that the trader loses out on £XXk profit on this contract because you couldn't get your act together?

just looking from both sides.

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.