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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My friend and I purchased an adjustamatic bed each for £5150

Customer Question

My friend and I purchased an adjustamatic bed each for £5150 each and paid a deposit of £515.00 each at the Ideal Homes Exhibition on 1st April. As we are unable to raise the funds for the rest of the money, we cancelled the order or 14th April.The contract states that the order can be cancelled within 14 days.
Whereas the company accept the cancellation, they are refusing to give us the deposit as they say the Ideal Homes show is considered a trading area. The contract also states that a refund would be given if reasonable effort is made to secure the funds. My friend and I tried to raise the money and failed.
At the time of the purchase, the salesman did not give any advice about 'cooling off period' and refund. Please advise whether they are within their rights to keep the deposit.
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. Are you able to kindly provide ideally a copy of or a link to the full terms associated with the contract please or copy and paste them or is this not possible?
Customer: replied 2 years ago.

Am attaching a copies of my contract. Please note that my copy has N/A on the bottom but the advisor did not explain why he did this. I crossed this out and filled in the cancellation form anyway.

- It is not allowing me to attach the document - it is asking for dimensions etc - it is a pdf file saved on my computer.

Expert:  Joshua replied 2 years ago.
Thank you for your reply. I am sorry you are having difficulties. There should be a paperclip icon on the page to allow you to attach a document?
Customer: replied 2 years ago.

clicking on paperclip and selecting document but it is not attaching to the email

Attachment: 2015-04-27_100324_bed_doc_1.pdf

Attachment: 2015-04-27_100432_bed_order.pdf

This is what downloaded - probably not the right thing

Expert:  Joshua replied 2 years ago.
Thanks. That seems to have worked - thank you. Just reviewing the documents.
Expert:  Joshua replied 2 years ago.
That is very helpful thank you. From what I can see from the form you placed the order on 1 April and completed the cancellation section on 14 April. How did you send the cancellation notice to the retailer and on what date did you send it?
Customer: replied 2 years ago.

Sorry you got so many copies - nothing was showing in my box.

My friend and I sent a letter and attached it to an email (separately but bcc each other).We also sent scanned copies of the contract to the supplier Both emails with attachments were sent on the 14th April before 10.00 am. Please note that the order was placed approximately at midday on the 1st April.

Please also note that my friend's contract does not have the N/A on the back.

Expert:  Joshua replied 2 years ago.
Thank you very much and it is no problem. The retailer is correct that it does not have to offer a cooling off period because you placed the order at its place of business - trade fair stands are considered to be a place of business although it is only temporary.However in this case the retailer has chosen (whether this is by mistake or intentionally) to include a cancellation right which rright is detailed immediately following the small print terms. The right provides that you have a right to cancel the agreement within 14 days from and including the day you place the order. Therefore the right to cancel runs to the end of 14 April in this case. The right goes on to say that the notice of cancellation is deemed to be served on the retailer on the day it is posted or sent (in the case of email). Therefore on the basis you sent the cancellation notice before the end of 14 April - which from what you say you did - then the notice is valid.The notice has the effect of cancelling the contract and therefore any monies paid under the contract must be returned. It is not a defence to the retailer to claim it does not have to offer a cancellation right because of where you placed the order because the fact is that they have included such a right in the order terms. The fact that they have written "N/A" on one of the contracts in the cancellation notice is also immaterial because they have not crossed out the provision detailing your right to cancel. Had they crossed out the clause providing a right to cancel then the position would be a little different but they have not so the position is that you have a right to cancel and are entitled to a full refund.If you paid by card, consider writing to the retailer referring the to the cancellation right at the bottom of the contract and your notice to cancel that you sent (keep a copy of that notice) and ask for the return of your deposit within 7 days failing which you will contact your card provider to ask them to issue a chargeback to reclaim the monies. If the don't you can consider doing just that - your card issuer will ask for a copy of the terms you have sent me and a copy of your cancellation notice and will then charge back the deposit to your account normally within 2-3 working days. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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Customer: replied 2 years ago.

Thank you for your reply. We will follow your advice and take the necessary steps. I am hopeful that based on your comments, we will be able to get the money we paid back.

I am very pleased with the service you provided and if we run into any more difficulties, I will contact you

Regards.

Expert:  Joshua replied 2 years ago.
I am glad I could help. Good luck
Customer: replied 2 years ago.

Hello Joshua

I forwarded the details of our correspondence to my friend and she reminded me that we sent the email to the supplier early morning on the 15th April - she is adamant that 14 days from the 1st is the 15th, bearing in mind that the transaction did not take place till midday.

The suppliers never challenged the date and accepted our cancellation. Please advise whether the above date discrepancy will have a bearing on as to whether we are or are not eligible to receive a refund on the deposit.

Expert:  Joshua replied 2 years ago.
Thank you. Oh dear. I am afraid I cannot concur with your friends interpretation of dates. The notice is unambiguous. The right to cancel exists for a period of "within 14 days starting with the day you receive a notice of your right to cancel"You received the notice of your right to cancel on 1 April therefore that is the first day of your right with the right expiring at 23.59 on 14 April. The law does not provide for refernce to time of day for calculation of notice periods - i.e. it is not 14 complete 24 hour periods unfortunately. However as you say the company many not have noticed this so the starting point is to proceed on the above basis. If they do notice or your card company rejects your claim for a refund based on the fact that you are out of time which I regret does appear to be the case, please come back to me and I will be pleased to provide information on next steps. All is not necessarily lost.
Customer: replied 2 years ago.

Than you very much - will be in touch if we get no joy.

Expert:  Joshua replied 2 years ago.
Good luck
Customer: replied 2 years ago.

Whilst drafting a letter to the supplier, I realised that there is a bit of information I should pass by you.

A couple of days after we submitted our cancellation (the letter was dated 14th but actually emailed on 15th), I received a phone call from a member of staff called Kim, who said she was responsible for sorting out this business. She suggested that rather than us lose all the deposit money, she had the authority to give us two options.

1. We had been given a 16% discount on the bed at the show. Plus we were promised a hand massager and two pillows. Kim said that she is in a position to offer us 25% discount (and the extras) and put the order on hold for 6-8 months or longer.

2. Let us have the hand massager if we didn't want the bed (massager costs about £450 roughly).

She has been chasing me for a response to the options and I have been telling her that I was waiting to hear from my friend.

Please can you advise if I send a letter to her asking for the deposit back, the options above will be cancelled. Neither my friend and I want to buy the bed now and the massager is not really something we want. Both of us have severe back problems, which is the reason we wanted to purchase the bed.

I look forward to some advice from you. When I do I will send the letter.

Thanks.

Expert:  Joshua replied 2 years ago.
I would anticipate if you obtain your deposit back the above offers would be withdrawn. The above offers are discretionary on the part of the retailer and not contained within their obligations under their terms so they could withdraw them at their discretion at any time.
Customer: replied 2 years ago.

Thank you. I'm not worried about the offers but I'm wondering whether if we make a noise about getting our deposit back and we are not successful and they withdraw any offer made, then we lose out altogether? Do we have any chance of getting any money back?

Thanks.

Expert:  Joshua replied 2 years ago.
Well the offers they ave made could be withdrawn at any time so I do not think you should base decisions on reliance on those. If you fail to recover your deposit under cancellation rights you may still be able to seek some of your deposit back under common law rules which I will be happy to expand upon in detail if you are unsuccessful in recovering your deposit under the cancellation provision.
Customer: replied 2 years ago.

Thanks very much, I will send the email off today and let you know the outcome.

Regards

Maria

Expert:  Joshua replied 2 years ago.
Good luck
Customer: replied 2 years ago.

Thanks

Expert:  Joshua replied 2 years ago.
No problem
Customer: replied 2 years ago.

Hello Joshua,

Thanks for your email, just beat me to it. I was going to let you know that Adjustamatic Beds looked into my email and consulted the Trading Standards and I am happy to say that they agreed to cancel both orders and give a full refund. The deposit money came through last Friday.

Thank you very much for your brilliant help and advice, I am very grateful and relieved with the result.

Kind regards

Maria

Expert:  Joshua replied 2 years ago.
MariaI am very glad you reached a settlement with the company. Well done. Best wishes

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