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1383 posts

Uber Geek
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  Reply # 1111898 20-Aug-2014 11:33
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That is a ridiculously good deal isnt it. Thats why I jumped on it. I dont know if you remember, but just last year, Noel Leeming had discounted a few flagship phones by 20%. The one in question was the HTC One. It had not even been released yet but they had it at 20% off on their website and quite a few people jumped on that deal, including me. That was a ridiculous deal as well. Noel Leeming did not go back and say that was an error and help up their end of the deal since the item was paid for. 

When I went in store to talk to the manager, he did tell me that price might have been a mistake but Noel Leeming was living up to their end of the deal. 

The reason I feel I am within my rights is that there is no clear indication of when the transfer of ownership of goods takes place. That is, I cannot find a clear definition of when is the ownership of goods transferred from seller to purchaser (I am not a lawyer so I dont know the intricate details around this - feel free to enlighten me). Hence, as per my interpretation, the money has been transferred, the order confirmed -> the ownership of good has been transferred. There may be an argument that the ownership of goods has not transferred over until the customer takes delivery of the item. I am not sure, as I said, I am not a lawyer so I do not know whats the legal precedence here. 

14091 posts

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  Reply # 1111959 20-Aug-2014 12:13
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I recall bond and bonds online clearance website, which at the time was owned by noel leemings , had a lot of items discounted substantially, and many people ordered them, including myself. But they cancelled all the orders and said that it was a website error that caused the prices to be incorrect. But as it was a clearance website, and they were advertising a big sale, it wasn't clear that the pricing  was an obvious error IMHO.


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  Reply # 1111974 20-Aug-2014 12:38
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Krishant007: 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).

You already have those records. If you are going to spend any more time on this I suggest you open a case with the DT.

At present you are looking for some magic words which will cause Dick Smith to hand over a Playstation. I can't see it happening with magic words.

Let the DT sort it out with a proper legal process. You do not need any knowledge of the law to take it there.

I have contributed this exact type of thread multiple times here on Geekzone. So far not one has initiated even a DT process. Just looking for magic cheap deals and in most cases knowing it was a mistake anyway. You can be the exception.


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  Reply # 1112013 20-Aug-2014 12:59
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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.

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.

Actually I think you are in the same position as me so you are only guessing that I would guess wrong ; ). There are some very precise definition of terms in the legislation. The exact meanings in specific circumstances have been defined further by case law. Imo the first paragraph of the link you just provided instantly says 'unless there was another intention'. Imo that is likely to be agreed standard terms of trade like FOB, COD, etc, etc. I don' think anyone here yet has expressed a clear and supported idea of exactly how this act relates to retail sales or sales over the web. Imo it is not just a simple matter of default options automatically applying.

170 posts

Master Geek
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  Reply # 1112046 20-Aug-2014 13:07
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Kyanar: 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).

Yes, I am currently sitting in my commercial law lecture :p

Looking through my case law suggests that simply setting it aside does not appropriate to the contract because the supplier could move it back to the bulk in their warehouse. If it has been wrapped for shipping with a delivery address on it then it still may not be appropriated. Carlos Federspiel v Twigg.

I think it has to be specifically shipped

Krishant007: 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. 

Part of this depends on whether this is an invitation to treat or an offer I believe. If it is invitation to treat then there will be no contract until the seller accepts it.

Otherwise, the Contractual Mistakes Act would likely apply. You could potentially get damages, probably not specific performance but it would depend on whether you could say you genuinely thought it was a sale and I very much doubt that. I don't remember too much about this act however

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