Restocking Fee - Item not received

DeafPotato

Bear with me to explain this...

I ordered a new TV from ShopTo on a Wednesday evening 13th Feb. The website stated "Next Day Delivery", though being in the evening this would be expected on Friday. I got a payment confirmation email which stated I would be notified later when my order was confirmed. The latter was never received.

When at work in the morning of Thursday, I booked the next day off work and called ShopTo on my way home to ask about the missing confirmation email. They said on the phone that I could expect the delivery on Friday as expected, and that they would contact the distributor to get an estimated delivery time. No phone call came to confirm.

Next day, I was at home all day doing some work in the house. I called ShopTo again at 11:30 to ask when I could expect the delivery as I wanted to take some rubbish to the Recycling Center. They said they would call the distributor and get back to me, which they did. In the return phone call, they explained that the distributor could not give an estimated delivery time as this was a "palleted delivery" - no idea why they cant estimate a delivery on a pallet but I accepted this anyway and waited in all day. No attempted delivery slip was posted through the door. In the same day, I received a delivery from Amazon with no problems at all.

I got a phone call from ShopTo at 17:12 to say that the delivery had been attempted at 10:00 and nobody was home. Definitely not true as I was home all day. I asked them to reschedule the delivery for the following day - and so it goes "we will ask the distributor", call back at 17:37 "sorry, distributor declined, it is too late to schedule a delivery for tomorrow".

I asked ShopTo if they would get the distributor to commit to a delivery slot in the evening after 5/5:30, as I was not prepared to take another day off work. "Distributor is closed now but we will call them on Monday and get back to you". I received a call on Monday to say the distributor declined to commit to a 1 hour delivery slot after 5:30 as they stop deliveries at 6. I asked for the distributor to propose an evening time when they would deliver - ShopTo would get back to me.

Received another call on the Wednesday (20th Feb) saying that the distributor will not commit to any time slot. We therefore agreed to cancel the order so that I could be refunded, which I was told to expect in around 5 days.

I received an email today (27th Feb) saying that now the distributor has received the TV back (???) and the accounts team are processing the refund for me. In line with the Ts&Cs, they would be deducting a £74.58 restocking fee. Those Ts&Cs quoted in the email are for UNWANTED ITEM - if you change your mind about a purchase you may return it. I argued with them that I have not received it so it is not in line with the terms and conditions, and likewise I simply refuse to pay a restocking fee for an item that was not delivered.

ShopTo said that they will contact the distributor to ascertain whether the delivery was in fact attempted, as if it was then the restocking fee would stand.

How do i stand legally with this? Am I best contacting the credit card company and claiming back through them if ShopTo refuse? Should I contact the credit card company anyway?

DoaM

Where you stand is to tell them to Eff Off ... the contract was cancelled due to their failings not yours. Apart from that, Consumer legislation does not allow them to charge a restocking fee - in fact it is illegal. They can reduce the value of a refund if the consumer's handling of the goods has reduced the value, but given the fact you've never received the goods at all then this would be impossible to justify.

If you paid by CC then the CC company are jointly liable with the seller for the performance of the contract - including returns/refunds. You can pursue either or both parties. (The CC company would be pursued as a Section 75 claim).

DeafPotato

Thanks DoaM - I thought the same and told them I wont roll over and pay the re-stocking fee. I expect them to try and keep the fee but quite frankly I think it is ridiculous.

I will do some searching here on a Section 75 claim, to see what that is all about. Any idea where I should look, for supporting documentation to claim the restocking fee is illegal on the suppliers side?

unholyangel

Unwanted Electronic items
If you receive an order placed through our Electronics section and wish to return this back to us, the item must be unopened and not used and there will be a 10% restocking fee deducted from the cost of the item upon return.

This fee is a charge made by our supplier, to cover cost of shipping and collection.

Shopto seem to have shot themselves in the foot. As above, they can't charge a restocking charge. They also cannot charge anything for the delivery.

Whether you're liable for return costs (ignoring the failed delivery argument for now) would depend on whether they complied with their obligations under the CCRs - this includes giving you certain information in durable medium (websites are not durable). Part of the information they need to tell you is that you will be responsible for return costs and (this is important in your case) if the goods cannot be returned by normal post, then they must also tell you how much it will cost to return them.

If they didn't provide that information before you were bound by the contract then they are liable for return postage costs also.

What they should be doing is figuring out on average how many returns they get and the average cost of those returns and then working that into their base price.

DeafPotato

Good news, they quickly backed down!

Greta_Sharbo

Well done. A lot of people don't question it which is why traders continue to try it.