Change of mind return nightmare! am I wrong?

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#1061200 8-Jun-2014 11:05

dejadeadnz:

Ultimately I think the LEGAL argument for the consumer's position is weak but the people who simply unthinkingly invite the shop to potentially duke it out with him at the Disputes Tribunal are missing one point: time is money; disputes resolution of any sort ALWAYS costs money. If the shop stands its ground and the consumer chooses to, this thing will go to the Disputes Tribunal. The relevant people at the shop may have to attend a hearing and prepare documents/statements for the tribunal before hand. It may be that you deem this worth it as a matter of principle but it's a decision to be made after a bit of reflection and not out of pique because whatever losses you might incur from settling things with the consumer may be cheaper than duking it out at the DT. Even if you win at the DT, you may not get much costs back either. This is another thing to remember.

Agree 100%.
Legally you may be totally in the right, but that doesn't mean it is necessarily worth it to 'fight it out'

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

They have already demonstrated their irrationality by their actions in your store.

As much as it is galling to do it, it's probably better for you to just suck it up, let them swap out their phone for the one they want, and sell the one they give you back second hand on Trademe.

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networkn

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#1061201 8-Jun-2014 11:13

NonprayingMantis:
dejadeadnz:

Ultimately I think the LEGAL argument for the consumer's position is weak but the people who simply unthinkingly invite the shop to potentially duke it out with him at the Disputes Tribunal are missing one point: time is money; disputes resolution of any sort ALWAYS costs money. If the shop stands its ground and the consumer chooses to, this thing will go to the Disputes Tribunal. The relevant people at the shop may have to attend a hearing and prepare documents/statements for the tribunal before hand. It may be that you deem this worth it as a matter of principle but it's a decision to be made after a bit of reflection and not out of pique because whatever losses you might incur from settling things with the consumer may be cheaper than duking it out at the DT. Even if you win at the DT, you may not get much costs back either. This is another thing to remember.

Agree 100%.
Legally you may be totally in the right, but that doesn't mean it is necessarily worth it to 'fight it out'

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

They have already demonstrated their irrationality by their actions in your store.

As much as it is galling to do it, it's probably better for you to just suck it up, let them swap out their phone for the one they want, and sell the one they give you back second hand on Trademe.

Or if you have a staff member who has excelled or is up and coming, offer it to them as an incentive.

Trademe is a similar things. Many times people who have traded with me have held me ransom to stupid things that no-one normally would agree to, and because TM won't get involved in feedback disputes, it can dent your reputation. Having said that, in this case, especially with the other nonsense you have had to put up with, I would simply refuse them any additional communication other than to tell them you have gone above and beyond and won't consider taking the matter further, but they are welcome to take it to the disputes tribunal.

Dratsab

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#1061226 8-Jun-2014 12:23

Strongbad1905: I can't sell a second hand phone I would loose out quite a lot if i did return it because in the time he owned it it has gone down in price it has marks on the paint etc and they want a dollar for dollar exchange so the s4 has gone down in value they want me to credit the full amount they paid months ago for today's value.

NonprayingMantis: As much as it is galling to do it, it's probably better for you to just suck it up, let them swap out their phone for the one they want, and sell the one they give you back second hand on Trademe.

From the version that's been presented I'd agree the customer is in the wrong. As for sucking it up, no way - it's the the thin end of a wedge. What about the next time the customer changes their mind, or tells their mates to change their minds...the snowball effect springs to mind here.

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#1061617 9-Jun-2014 08:33

If it were me as the manager I'd have had both the father and son trespassed from your premisses along with saying they're welcome to take it the DT

rayonline

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#1061651 9-Jun-2014 10:12

Even if you buy from very reputable NZ sourced distributor store - most of them don't have return policies. Some will say it - be careful with your decision b/c there are no refunds, if it is faulty they will get that sorted.

Dick Smiths used to have a return policy but not anymore. Noel Leemings doesn't. Even some of the professional cameras don't.

As you tested, the other S4 was the same. So it's not a manufacturing defect. They're all like that.

Edit - if I get a laptop that is a bit hotter than normal but some laptops are like that as designed. Some HDDs are a bit noisier then others.

Inphinity

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#1061659 9-Jun-2014 10:19

NonprayingMantis:

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

This is where the Defamation Act comes in to play.

andrewNZ

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#1061678 9-Jun-2014 10:46

Inphinity:
NonprayingMantis:

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

This is where the Defamation Act comes in to play.

I thought the Defamation Act only covered published material.

Edit: From a lawyers website. Looks like it comes down to the definition of "published"

A defamatory statement can be in either written or verbal form. To be successful, the plaintiff must prove they have been defamed by proving the following three elements:

a defamatory statement has been made,
the statement was about the plaintiff, and
the statement has been published by the defendant.
Publication is a crucial aspect of these tests. It must be proven that the defamatory statement was published to at least one person other than the plaintiff. If the statement was published to the plaintiff alone then the test for publication will fail. Publication of defamatory statements includes the making of verbal statements.

Strongbad1905

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#1062334 10-Jun-2014 07:58

The great news is if it did got to the DT I did gain consent and recorder end the whole thing when i could tell it was starting to all go south. So it doesn't just have to be my word. It doesn't have to be a he said she said deal. Thanks all for your help it's very much appreciated.

sen8or

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#1062481 10-Jun-2014 12:08

Sounds like you are in a lose/lose situation, the only question, how much its going to cost the business.

Stick to your guns, roll the dice and see if the customer takes you to the disputes tribunal and wear whatever costs are associated with that, even if you win.

Give in completely, refund the customer and lose the purchase cost of the phone until you sell it again (2nd hand phs on trademe seem stupidly expensive so you may not lose all that much).

Then ofcourse, there's the hidden costs. How much "bad publicity" do you think you'll get from option 1? Before the days of social media etc, it was said on average a person will tell up to 10 people about a bad experience with a product/service, how many you think will get that message now with twitter, facebook etc?

I do not believe the customer is always right, but in retail, you will never "win" an argument with a customer

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#1062506 10-Jun-2014 12:32

NonprayingMantis:
dejadeadnz:

Ultimately I think the LEGAL argument for the consumer's position is weak but the people who simply unthinkingly invite the shop to potentially duke it out with him at the Disputes Tribunal are missing one point: time is money; disputes resolution of any sort ALWAYS costs money. If the shop stands its ground and the consumer chooses to, this thing will go to the Disputes Tribunal. The relevant people at the shop may have to attend a hearing and prepare documents/statements for the tribunal before hand. It may be that you deem this worth it as a matter of principle but it's a decision to be made after a bit of reflection and not out of pique because whatever losses you might incur from settling things with the consumer may be cheaper than duking it out at the DT. Even if you win at the DT, you may not get much costs back either. This is another thing to remember.

Agree 100%.
Legally you may be totally in the right, but that doesn't mean it is necessarily worth it to 'fight it out'

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

They have already demonstrated their irrationality by their actions in your store.

As much as it is galling to do it, it's probably better for you to just suck it up, let them swap out their phone for the one they want, and sell the one they give you back second hand on Trademe.

best answer BUT if you go down that path get a well worded legal letter saying you did not have to do this, bla bla bla, but a gesture bla bla bla, out of kindness bla bla bla. in writing. black and white. empathise without apoligising.

Dratsab

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#1062527 10-Jun-2014 12:39

andrewNZ:
Inphinity:
NonprayingMantis:

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

This is where the Defamation Act comes in to play.

I thought the Defamation Act only covered published material.

Edit: From a lawyers website. Looks like it comes down to the definition of "published"
A defamatory statement can be in either written or verbal form. To be successful, the plaintiff must prove they have been defamed by proving the following three elements:

a defamatory statement has been made,
the statement was about the plaintiff, and
the statement has been published by the defendant.
Publication is a crucial aspect of these tests. It must be proven that the defamatory statement was published to at least one person other than the plaintiff. If the statement was published to the plaintiff alone then the test for publication will fail. Publication of defamatory statements includes the making of verbal statements.

There's a couple of different types of defamation:
written = libel
verbal = slander

networkn

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#1062540 10-Jun-2014 12:58

sen8or: Sounds like you are in a lose/lose situation, the only question, how much its going to cost the business.

Stick to your guns, roll the dice and see if the customer takes you to the disputes tribunal and wear whatever costs are associated with that, even if you win.

Give in completely, refund the customer and lose the purchase cost of the phone until you sell it again (2nd hand phs on trademe seem stupidly expensive so you may not lose all that much).

Then ofcourse, there's the hidden costs. How much "bad publicity" do you think you'll get from option 1? Before the days of social media etc, it was said on average a person will tell up to 10 people about a bad experience with a product/service, how many you think will get that message now with twitter, facebook etc?

I do not believe the customer is always right, but in retail, you will never "win" an argument with a customer

Sadly the last line of this is particularly true. I feel that the consumer guarantees act has allowed the customer to bully, force and blackmail retailers into doing things which most people would consider unreasonable.

I am for consumer rights, but I think its bent too far back the other way now, and the balance is way out of whack.

It seems amazing to me that consumers continue to want everything cheaper, but still want it to last just as long, performance just as well and still have the warranty of a much more expensively built and costing product.

Why should a $300-$500 computer sold at clearance at a retailer, have the same 3 year+ warranty of a computer 10 times the cost. I don't think it should.

jonathan18

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#1062564 10-Jun-2014 13:25

networkn: Why should a $300-$500 computer sold at clearance at a retailer, have the same 3 year+ warranty of a computer 10 times the cost. I don't think it should.

In realilty, I don't think the law treats all goods the same - the cost paid for a product would be taken into account as to how long that product should last.

One reference I read suggested that the CGA uses the terms "reasonable" and "acceptable" expressly as they are open-ended, therefore contextual (dependent on cost, condition, usage...). This, of course, makes it muchmore arbitrary...

networkn

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#1062573 10-Jun-2014 13:39

jonathan18:
networkn: Why should a $300-$500 computer sold at clearance at a retailer, have the same 3 year+ warranty of a computer 10 times the cost. I don't think it should.

In realilty, I don't think the law treats all goods the same - the cost paid for a product would be taken into account as to how long that product should last.

One reference I read suggested that the CGA uses the terms "reasonable" and "acceptable" expressly as they are open-ended, therefore contextual (dependent on cost, condition, usage...). This, of course, makes it muchmore arbitrary...

Sadly this isn't the case. I have friend who runs a computer retail outlet, and he recently had to replace a 3 year old $420 laptop he made $34 on for a customer who wouldn't accept it wasn't reasonable. Nightmare.

Consumer in the instances I have spoken to them, treat all computers the same, regardless of value.

dejadeadnz

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#1062717 10-Jun-2014 16:20

Inphinity:
NonprayingMantis:

The other thing I'll add to dejadeadnz's advice is hat you should consider is that even if the customer doesn't take you to the disputes tribunal, there are other ways vindictive customers can harm your business.

From something as simple as posting a negative facebook or yelp review or similar, or telling everyone they know that you are scammers, all the way to standing outside your store warning people going in that you are con artists.

This is where the Defamation Act comes in to play.

Yeah, sure. I can just see how suing someone at the District Court in relation to this sort of stuff will work oh-so-beautifully for your average retail shop. The costs of going to a defended hearing (and this is only the costs of your own lawyer) is up to 50K. The DT has no jurisdiction to hear defamation claims.

Then you'll need to pay filing fees, setting-down fees, and hearing fees etc. Just to file the documents will be a few hundred bucks. And who knows whether the defendants have money to pay any damages (a business will need to prove loss of business as a result of the statements to get $$). And then there's the issue that the defendants are entitled to raise the defence of honest opinion. They can, for example, say things like "Oh don't from there. We did and told them we needed the phone to be good for music and the music playback sucks. But these bastards won't give us our money back!" and so long as they articulate a factual basis for their opinion -- however unreasonable it might be -- and that the opinion is deemed by the court to be honestly held, rather than simple uttered as a sheathed version of a defamatory statement, your claim is off to the rubbish bin.

A few other random points on defamation:

1. The law here makes no distinction between spoken and written defamation.

2. In general, the only types of people who sue for defamation (in NZ anyway) are quacks or rich types who want to silent people. There is always blowback to court proceedings and defamation proceedings especially. Evidence given in court or submitted to the court are subject to absolute privilege (i.e. you can't sue someone based on them). What a lot of abusive people will do is utter a lot of crap in court documents and evidence and invite the media along. The media will then (as the law entitles them to) report the allegations as allegations and you have all sorts of bad PR splashed across the newspaper/internet.

I am extremely disturbed by the remarkably fiscally tone-deaf and business implications-unaware chestbeaters in this thread whose default position when disputes arise is to argue to the hilt or invite DT proceedings. If they have no awareness of the costs/problems involved in disputes resolution, I invite these people to study them. If they simply like to duke things out, I hope for the sake of whoever employs you that you don't get to decide on disputes resolution strategies.

Networkn:

Sadly the last line of this is particularly true. I feel that the consumer guarantees act has allowed the customer to bully, force and blackmail retailers into doing things which most people would consider unreasonable.

I am for consumer rights, but I think its bent too far back the other way now, and the balance is way out of whack.

It seems amazing to me that consumers continue to want everything cheaper, but still want it to last just as long, performance just as well and still have the warranty of a much more expensively built and costing product.

Why should a $300-$500 computer sold at clearance at a retailer, have the same 3 year+ warranty of a computer 10 times the cost. I don't think it should.

The law doesn't treat everything the same. Section 7 of the CGA

7 Meaning of acceptable quality

(1) For the purposes of section 6, goods are of acceptable quality if they are as—
- (a) fit for all the purposes for which goods of the type in question are commonly supplied; and
- (b) acceptable in appearance and finish; and
- (c) free from minor defects; and
- (d) safe; and
- (e) durable,—
as a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard as acceptable, having regard to—
- (f) the nature of the goods:
- (g) the price (where relevant):

Back to the particular example. Unless the item was second hand, I don't think in this day and age it's unreasonable for a consumer who makes occasional person use (say an hour or two a day) of an electrical appliance to expect it to last 3 years. Does this mean this is or isn't what the CGA requires? Well, there's deliberately no clear line for obvious reasons. To be honest -- and this is coming from a guy with a very commercial approach to things and works for a corporate -- I have very little sympathies for all the people that whinge about unreasonable customers. They are but a cost of doing business. I know all the "But things like that make things more expensive for others too!" arguments but my retort is that there are plenty of dodgy shop owners too and human relations are inherently imperfect and difficult.

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