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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46153
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We travelled to Hartlepool from Rochford- 270 miles, 6hrs

Customer Question

We travelled to Hartlepool from Rochford- 270 miles, 6hrs drive- to view an American Day Van as seen on Ebay,it was not as good as described but the garage owner explained faults as superficial and accepted a lower offer £2800 (original-£3295). In order to have time to check details of the vehicle we asked if we could leave a holding fee at that price in order to get the money together,he accepted and we got a receipt for £500.The final transaction would have been paid through eBay and PayPal back in his office when we returned as he would have had to change the price on the advert in order for the transaction to take place,also to get the £500 back before final payment, it is against eBay rules to engage in cash outside of eBay.I taxed and insured the vehicle in order to collect it and drive it home-but before leaving I ran off all previous m.o.t's my partner read them on the way up to Hartlepool and was shocked to see the amount of defects and faults that had been listed- each year was a "fail" then a pass,but the last one- immediately before it went on sale-was a "fail" quoting problems but the very next day had a "pass"which was suspicious, we also had time to consider faults we had seen for ourselves explained away by the garage owner-both wing mirrors were held on with tape ,both with broken glass,the outside steps to roof were corroded,running boards were loose, drivers door was hard to open from inside or outside, with all this in mind we panicked thinking are we going to end up with a bottomless money pit and would it even get us home the 270 miles? was it even roadworthy...so we returned home. I can't sorn the vehicle as apparently it is still in the previous owners name-not the garage,and they (prev owner) will get the cheque.I have the green slip which is what I used to tax it with-so now I'm £629 out of pocket, I have asked the garage owner for my £500 holding fee back but he wont give it-he says it's non-refundable but he did not tell us that when money was left nor is there any paper or signage to say such a thing, we would not have left it in that case, he has the benefit now of being able to sell the vehicle with 6months tax (at my expense), he has put it back for sale on eBay-reduced amount. My question is ..can I get the money returned? where do I stand?
Regards
Submitted: 5 months ago.
Category: Law
Expert:  Ben Jones replied 5 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 5 months ago.

How long ago was this?

Customer: replied 5 months ago.
3 weeks for 1st viewing, then cancelled 1st Oct (last week) I have been trying all week with e'mails to him
Expert:  Ben Jones replied 5 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 5 months ago.
o.k. thanks
Expert:  Ben Jones replied 5 months ago.

No problem at all. I will get back to you at the earliest opportunity. Many thanks

Expert:  Ben Jones replied 5 months ago.

Many thanks for your patience. Generally, when a person places an order for something and pays a deposit they enter into a legally enforceable contract with the seller. It is implied that the seller has accepted the deposit as security and as proof that the buyer wants to proceed with the contract.

Unless the seller subsequently commits a serious breach of contract, or there was a cancellation clause, the buyer would have no legal right to cancel the agreement and if they do so they will be acting in breach of contract and risk losing their deposit. This is especially true if the deposit was described as non-refundable.

However, if this was a business seller, they will be subject to certain consumer rules and regulations. For example, you will have some protection under Schedule 2, Regulation 1(d) of the Unfair Terms in Consumer Contracts Regulations 1999. It states that if the contract has been cancelled after a deposit has been placed you are entitled to have the deposit returned in full, unless the seller has spent time, effort and money, in which case they can deduct reasonable expenses. Even if some expenses have been incurred, if these are subsequently recovered, for example by selling the item to someone else, the deposit should still be returned in full. It follows that a blanket non-refundable clause that entitles the seller to keep the deposit in all circumstances is most likely going to be unfair and unlawful. So assuming they will sell the van for a similar price, then they should return your deposit.

If you are having difficulties in recovering the deposit when you believe you are entitled to have it returned, advise the seller that you will not hesitate reporting them to the Office of Fair Trading and, if necessary, pursue the matter further through the county court. Exerting such pressure could often work in changing the seller's position in this matter.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow if they refuse to refund you, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46153
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 5 months ago.
Thank you for your very welcome reply- I did say in my first statement that here was no mention of "non-refundable deposit" it was never mentioned and there was no written signage to that effect, he gladly took the money and signed the receipt -the van is back up for sale, and as stated, he has the advantage of 6 months tax to encourage a new buyer. In my last e'mail to him I told him I would issue a county court summons to which he replied "go ahead -you can take me to the small claims court but as far as he was concerned the deposit was non refundable and the matter was closed" so what should I do next ? should I issue the county court summons-(I have done this in the past in my previous job) or tell him I am going to report him to trading standards...,,regards.
Expert:  Ben Jones replied 5 months ago.

I would not suggest you go straight to issuing a claim against him. Whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. Before you consider starting legal action you may wish to consider sending a formal statutory demand. This is a legal request which asks the debtor to pay the outstanding debt within 21 days and failure to do so will allow you to bankrupt the debtor (if they are an individual ) or wind up the company (if they are a business). For the relevant forms to serve a statutory demand see here: https://www.gov.uk/statutory-demands/forms-to-issue-a-statutory-demand

4. If you wish to go down the legal route instead of a statutory demand, a claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

Customer: replied 5 months ago.
I have looked on the gov.uk site, I don't know which form to download -would it be possible for you to attach a form so that I can read and complete?
Expert:  Ben Jones replied 5 months ago.

is the garage a limited company? If so it is this form:

https://www.gov.uk/government/publications/statutory-demand-insolvency-form-41

Customer: replied 5 months ago.
Thanks- I was jumping the gun a bit there- I'll send a reminder letter first as suggested...let you know when it's done.
regards.
Expert:  Ben Jones replied 5 months ago.

no problem, thanks

Customer: replied 5 months ago.
Just to let you know I sent a 1st letter allowing 10 days for payment- recorded delivery as suggested, he should have received it by today- quoting that 'legal proceedings will ensue'-and showing sections of the law dealing with deposits,his eBay account for the vehicle shows 'no returns' but that is for the item-I think he is quoting that with regard to money- but I have been unable to establish his surname "bw"- motors.. I found an older e'mail address that he used which used the name of 'Wallace' maybe that's it but I havn't used it..I addressed it to Brian..bw-motors which is the title he is using.I will wait and see what happens after 10 days.
Regard.
Regards
Expert:  Ben Jones replied 5 months ago.

Many thanks for the update

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