A company refuses to refund us £545 after having sent the goods back

lucinka77

Hello, a brand newbie here with a question whether we stand a chance at a small claims court:

In late September we ordered a dog kennel from a company in Kent. We placed the order on the phone, paying £545. We clearly told them the access to our garden was limited (through a narrow gate in our neighbour's garden) and even gave them the exact measurements of the gate. The sales team representative said it should be ok and promised to get it delivered with a crew of two men, who could lift the kennel through the gate if necessary. 

However, when it arrived, it weighed 400kg (a fact that was not stated in the specifications on their website) and there was only one driver who immediately said there's no way to get it into our garden. This huge and heavy thing was now blocking our neigbours' driveway, so we had to refuse delivery and send the kennel back. 

However, the company now refuses to refund us the £545, saying that their terms and conditions state that 'bespoke items' are non-refundable and that they are not obliged to give us our money back. We were not told anything about non-refundable bespoke items when placing the order - on the contrary, the sales representative assured us that we could return it for a surcharge of £60. 

Also, we were not aware that our item is 'bespoke' - we have chosen from their standard options - an XL kennel with insulation. The only additional thing we requested was a door for the kennel, but the sales rep did not warn us that if we chose an extra feature that we wouldn't be entitled to a refund. 

We've been phoning and emailing the company extensively, but they don't react to the fact that we've been misled by their sales team, and keep insisting that should have read their terms and conditions and that they're not obliged to give us our money back. 

Do you think we stand a chance? Thank you! 

Sandtree

Ordering over the phone makes things a little difficult to know what is bespoke and what is made to order. Did you go to the phone rather than the internet because their website wouldnt allow you to choose what you wanted, which may point to it being bespoke?

unholyangel

The door, does the retailer offer this as a standard option (even at additional cost), or not? 

What did they give you in a durable medium (email is durable but links to websites, even if sent by email, are not)? 

Alderbank

lucinka77 said:

The sales team representative said it should be ok and promised to get it delivered with a crew of two men, who could lift the kennel through the gate if necessary. 

However, when it arrived, it weighed 400kg 

They don't have to state the weight and for many buyers the weight would not be of interest. However if they did state the weight either on the website or when asked it would have to be reasonably accurate.

However my concern is that expecting two men to lift a 400Kg weight through a gate (I assume that means lift it above 1m high gateposts) is crazy. A one-off manual 'long lift' (ground level to +1m) by two lifters would not be safe above about 80Kg. To lift getting on for half a ton needs something like a scissor lift truck at least.

You ordered a kennel with a door to your specification so it might be bespoke, but the contract was to build and deliver this to an agreed location in your back garden. It sounds like they have built what you wanted but just not managed to comply with agreed delivery so you should give them another chance to deliver, and within a reasonable time.

They might after reconsideration decide they can't do it or can't do it for an economic price. In that case they must refund what you have paid.

If you tell us the name of the company we might be able to give better help

Jenni_D

400kg!!!! 😲 How big was this kennel? How big is your dog?

Edit: I have a 7' x 5' wooden fence in the garden, and even with the wooden ground support frame I doubt it weighs 400kg.

As mentioned above, a phone sale is still a remote (distance) sale, so in normal circumstances you can cancel the contract without charge (other than perhaps be liable for the cost of returning the goods - with caveats as to if/how the contractual T&Cs were notified). If the goods were customised then the "cancel for no reason" right is usually removed - but it still depends on if/how the contractual T&Cs were notified.

Aylesbury_Duck

Putting rights to one side, and assuming you still need the kennel, is there a practical solution, e.g. temporarily removing your neighbour's fence (with their agreement, of course) to widen the opening, or are we talking about brick walls?

lucinka77

Sandtree said:

Ordering over the phone makes things a little difficult to know what is bespoke and what is made to order. Did you go to the phone rather than the internet because their website wouldnt allow you to choose what you wanted, which may point to it being bespoke?

Thank you. We went for the phone to be really sure that the kennel would get through our neigbour's garden gate - to let them know the width of the gate. The sales rep confirmed this with the promise of two men to lift it if necessary. She didn't seem to have a clue about the 400kg weight! (In retrospect, we wonder why they didn't offer the option to deliver it flat packed and assemble it in our garden...)

Also, when I asked if it was possible to add a door to the kennel, she said she'd check with the builders, and then got back to us saying yes. Before the payment, I double-checked with her if we could return in case of any problems with the access, and she said yes, for a return fee of £60. So we feel misled and misinformed. No one told us to read their terms and conditions, we trusted the sales rep, who, to my mind, haven't been trained enough by the company. 

Jenni_D

Did they send you anything by email before attempting to deliver?

lucinka77

unholyangel said:

The door, does the retailer offer this as a standard option (even at additional cost), or not? 

What did they give you in a durable medium (email is durable but links to websites, even if sent by email, are not)? 

The retailer doesn't offer the door as a standard option, so I guess this could be what they refer to as 'custom made' or 'bespoke'. However, the sales rep reassured us the kennel would be returnable even after we asked for the door. 
After placing the order on the phone, they didn't give us anything in a durable medium, no order confirmation or a receipt. We only have a proof of it in our bank statement. 

lucinka77

Alderbank said:

lucinka77 said:

The sales team representative said it should be ok and promised to get it delivered with a crew of two men, who could lift the kennel through the gate if necessary. 

However, when it arrived, it weighed 400kg 

They don't have to state the weight and for many buyers the weight would not be of interest. However if they did state the weight either on the website or when asked it would have to be reasonably accurate.

However my concern is that expecting two men to lift a 400Kg weight through a gate (I assume that means lift it above 1m high gateposts) is crazy. A one-off manual 'long lift' (ground level to +1m) by two lifters would not be safe above about 80Kg. To lift getting on for half a ton needs something like a scissor lift truck at least.

You ordered a kennel with a door to your specification so it might be bespoke, but the contract was to build and deliver this to an agreed location in your back garden. It sounds like they have built what you wanted but just not managed to comply with agreed delivery so you should give them another chance to deliver, and within a reasonable time.

They might after reconsideration decide they can't do it or can't do it for an economic price. In that case they must refund what you have paid.

If you tell us the name of the company we might be able to give better help

Thank you. The name of the company is Cherry Acres Animal Housing. Regarding another chance of re-delivery, they said in their email that since we have refused delivery of an item in 'perfect condition', they are not obliged to either give us a refund, or a replacement..! 
The 400kg was the primary reason why it was impossible to get it into our garden. The sales rep clearly didn't know this when promising us two men to 'lift it through the gate if necessary. I would have thought it is the company's responsibility to train their sales team properly.  
And even after requesting the door, the sales rep said a return for £60 would be possible in case of any problems with the access.

Jenni_D

If a seller wishes to bind a distance customer to T&Cs then they must provide those T&Cs in a durable means before the consumer becomes bound by them. As they have not provided any T&Cs then you're not liable for the returns cost (even for a "bespoke" item) and must be given a full refund.

How did you pay? (Debit or Credit card?)