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gzt

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  Reply # 1111420 19-Aug-2014 17:01
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Have they refunded your money?

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  Reply # 1111422 19-Aug-2014 17:04
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i dont think so.. they called and offered me either a refund or pay more to get the product.. i said give me some time to think about it...  its using credit card so it wont show on my accounts straight away anyway

 
 
 
 


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  Reply # 1111445 19-Aug-2014 17:17
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Krishant007: I am still hoping there is a loophole that does benefit the consumer who already has been charged - should be within my full rights to go and get the item since payments already made and order already processed and confirmed.

I think not if they have already explained the situation to you.

But what the hey if they still have your money then you could create a case with the disputes tribunal and they will probably have to give you a reasonable (but lesser) discount at the end of it lol ; ).

Imo the sensible thing for DS to do was here's a bit of a discount anyway for getting your hopes up and having a silly price maintenance process.

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  Reply # 1111642 19-Aug-2014 21:50
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Technically, my interpretation of the law is that you actually own that PS4 that they are refusing to send you.  Basically, the Sale of Goods Act states that title over goods passes from the seller to the buyer at time of payment irrespective of whether delivery is to happen at a later date, unless there is an explicit contract which imposes conditions on the sale which changes it from a sale into a contract.  You could argue that the website terms and conditions act as that contract - but nay!  At no point in the order flow do Dick Smith ask you to explicitly signal your agreement to the terms and conditions - unless they obtain your explicit agreement, you have NOT legally agreed to those terms and conditions, and they are not enforceable against you.  They could argue that the Contractual Mistakes Act would then apply.  However, that would only apply if you genuinely knew that it was a mistake - if you believed it was the intent of the agreement to offer it for that price, then the Contractual Mistakes Act would not apply (an exception applies if you were both influenced into entering the contract by the same mistake - you'd be mad to think that they were influenced into entering into the contract by an underpricing mistake).

I mean morally, you should probably just take the refund or pay the extra.  But if you wanted to be a bit of an ass, you probably could (disclaimer: I am not a lawyer.  If I was a lawyer, I would not be your lawyer.  This post is not legal advice, and should be taken at face value.  If symptoms persist, consult your legal professional).

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  Reply # 1111669 19-Aug-2014 22:29
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I would like to see someone with the time to take this to completion with them, as DS are the biggest offenders I have seen for constantly throwing "50% online" deals out there, so you could quite reasonably think that it was 50% off a PS4 because of their past crazy "discounts"




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  Reply # 1111675 19-Aug-2014 22:51
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Kyanar: Technically, my interpretation of the law is that you actually own that PS4 that they are refusing to send

I have no idea if you are correct or not, I'm guessing not. First up SOGA only applies where the FTA does not. Second if you read the entire SOGA there is a lot of wiggle room and potential remedies. Also take a look at examples/cases involving 'property passes when intended to pass' related to the SOGA.

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  Reply # 1111702 19-Aug-2014 23:40
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gzt:
Kyanar: Technically, my interpretation of the law is that you actually own that PS4 that they are refusing to send

I have no idea if you are correct or not, I'm guessing not. First up SOGA only applies where the FTA does not. Second if you read the entire SOGA there is a lot of wiggle room and potential remedies. Also take a look at examples/cases involving 'property passes when intended to pass' related to the SOGA.


There's very little wiggle room actually.  Have a look at 'rules for ascertaining intention'.  It's really quite specific.  "Where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, is postponed".  A standard sale is an unconditional contract, therefore immediately upon paying the title in the goods passes to the buyer.

Also, the statement that the Sale of Goods Act only applies where the Fair Trading Act doesn't is absolutely false.  The Fair Trading Act even explicitly states that "Nothing in this Act limits or affects the operation of any other Act".  It makes an exception to that where Part 4A applies in that it provisions of 4A may explicitly limit the Sale of Goods Act or Contractual Remedies Act, but Part 4A only applies to Laybys, Uninvited Direct Sales, Extended Warranties, and Auctions.  None of which apply in this instance.

In short, you'd guess wrong.

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  Reply # 1111715 20-Aug-2014 01:23
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I don't think goods sold over the internet are ascertained/specific goods because the individual PS4 has not been identified and agreed upon when the contract of sale is made. The PS4 would have to have been unconditionally appropriated to the contract before property in it passes. This would be when it is set aside for shipping or to be picked up in the store.

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  Reply # 1111770 20-Aug-2014 08:44
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That's an interesting perspective I hadn't considered.  By chance have you studied law?

So one would then question at what point the goods are legally ascertained.  One could say it is when they go into a warehouse and grab one out.  I'm unsure of this, but could one not also argue that the ascertained some goods when their computer systems accepted your order and set aside a specific stock item for delivery?  I'd be somewhat interested to see the answer - it would have pretty wide ranging implications for ecommerce sellers (and would explain why some sellers such as Mighty Ape do not charge you until the order is processed and goods are ready to ship).

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  Reply # 1111832 20-Aug-2014 09:54
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The only communications I have received from Dick Smith was a form letter saying they intended to credit the withdrawn funds back into my credit card. No one from Dick Smith has contacted me since that time.

They did say it could take a few days for the credit to be refunded. I will be checking tonight to see this transaction has been completed.

I find it odd that Dick Smith has contacted some people impacted by this issue, and not others.

Regardless, the outcome is the same. No PS4 , and no guarantee that DSE won't do this again down the line.

It would have been nice to see DSE respond somewhere stating they had implemented a process to ensure these errors would be minimised going forward. It's reasonable to expect companies make mistakes from time to time - but failing to learn from them, and upsetting customers is not a good look.

I'm hopeful that we won't see this again - fingers crossed :)

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  Reply # 1111862 20-Aug-2014 10:06
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Well, reading through their terms and conditions, it seems that they have covered their terms really well. Basically, according to their terms and conditions, they are able to cancel any order (even after accepting it, without any liability to the customer. 

Although, in the same terms and conditions, they also say that once the order is accepted, it is a binding contract between the customer and DSE for them to deliver the goods. I find that quite contradictory!

I have also checked some other top shops websites (harvey norman) and they have similar terms! That means, even after taking our money, they can cancel the order! My friend reckons that is quite unfair since they are misleading customers and luring them to their sites by showing a lower price and then saying, na it was a mistake, take your money back or pay the difference. Since those terms are on there, companies can pretty much cancel the order at any time claiming it was a mistake.

I feel, if the money has been taken from you, the sale process has been completed. You saw what you wanted, you were happy with the price, you made the purchase, paid the money. The company has to fulfill the order if they have taken your money. 

I will be requesting a written letter from the company and and telling them to state that they have actually taken my money (which they have), issued me with an order confirmation but they are unwilling to uphold their end of the sale (which is the case). This does damage their good-will quite a bit! Yes it may have been a mistake (i dont know if it was or not), but for those customers who paid their money to the company and have got confirmation via email do technically own the product and being such a large company, they should be able to uphold their sale.

I have also experienced something similar to what everyone on this thread has, but with Harvey Norman. 


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  Reply # 1111864 20-Aug-2014 10:12
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they are perfectly entitled to do what they did with their terms and conditions. you could take up the issue as I think they use browse wrap not click wrap. where there is no place where you have to explicitly click that you accept the terms, in this case the terms come up and you scroll down and click accept. I think they just use browse wrap where by clicking submit you agree to the terms but you don't have to actually read them and to read them you have to click a link to open them up. the browse wrap hasn't actually been tested in the courts before (according to my contract law lecturer). anyway if you had shopped online with them before you can't complain as you should already of known the terms so the browse wrap argument probably wouldn't hold up.

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  Reply # 1111865 20-Aug-2014 10:14
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The thing is that the online process is automated, I suppose. It checks if there's stock, and if there is it starts the order process. The fact that a mistake was made with the price doesn't matter to the ordering system, it goes on its merry way. Should you be able to hold them to the price that is in error?

If I ask you, honestly, did you think they were selling PS4s for $238?

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  Reply # 1111874 20-Aug-2014 10:35
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In terms of asking if I think they were selling PS4s for 238 dollars, it did say SALE price. So why not? I just thought it was a really good deal. They did sell 40 batteries for $5 (marked down from $30) a couple of weeks ago with free delivery, so it is entirely plausible that they were selling a PS4 at $238.

But yes the process may be automated. I still feel I am fully within my rights since the money was taken from my account. It would have been different in the case if the money hadnt been taken of course. Something like what MightApe do - they do not take the money out of my account until they are about to ship the product. But money taken, order confirmation received. Then error caught and phone call made. 

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  Reply # 1111890 20-Aug-2014 11:19
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Krishant007: In terms of asking if I think they were selling PS4s for 238 dollars, it did say SALE price. So why not? I just thought it was a really good deal. They did sell 40 batteries for $5 (marked down from $30) a couple of weeks ago with free delivery, so it is entirely plausible that they were selling a PS4 at $238.

But yes the process may be automated. I still feel I am fully within my rights since the money was taken from my account. It would have been different in the case if the money hadnt been taken of course. Something like what MightApe do - they do not take the money out of my account until they are about to ship the product. But money taken, order confirmation received. Then error caught and phone call made. 

Why not? Because that is a ridiculous deal, isn't it?

A few people have thrown concrete legal references into this thread, but it's nice that you feel you are within your rights. Please let us know how you get on with that.

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