Trademe + Disputes tribunal

[qube 3570]

i doubt they have anything like that.

I dont even think he took it to a telecom technician. all he could tell me was "the technician said it was faulty"

hes not very helpful or trying to make an effort.

[Allanw 1071]

Did you sell it by AUCTION???

The CGA does NOT apply to goods sold by auction, as says so very specifically - ever notice why repo cars are auction only?

It DOES, however, apply to used goods.

Wait for disputes papers.

[qube 3570]

it sold using buy now. if that makes a difference.

[Palazzo 476]

Did you sell it by AUCTION???

The CGA does NOT apply to goods sold by auction, as says so very specifically - ever notice why repo cars are auction only?

It DOES, however, apply to used goods.

Wait for disputes papers.

That's no longer strictly true. I can't remember the inticacies, but some goods are now covered by CGA for auction also. I think it covers those "in trade", but not sure how much further it extends. Check the Turners website, they now mention it, or of course consumer affairs/ministry of something.

[Palazzo 476]

it sold using buy now. if that makes a difference.

It does, but I think you're out as not being "in trade" above.

[M3_Power 636]

In my layperson opinion you'd lose at the tribunal.

The following things will definitely go against you due to the way you've advertised it:

#Mint#

Refurbished professionally

Excellent condition

Unless of course if you can show proof like an invoice from the professional outlet that carried out all the work and tested that the phone was "Mint" when it left you.

Whilst Caveat Emptor applies in majority cases, it doesn't cover you if you've misrepresented - the referee is going to say you said it was mint, in excellent condition and refurbished professionally, this gives the representation that this is a trouble free phone, yet upon the purchaser receiving it for one day it started to display symptoms of faults. The referee is also going to say what proof you have to show it was refurbished professionally? And if you can't show it, then basically slam dunk for the other party.

Also be aware that DT can aware costs associated with the claim - i.e. you could be out of pocket more than the $300 if it goes again you.

Good luck.

Edited August 15, 2014 by M3_Power

[qube 3570]

http://www.consumeraffairs.govt.nz/for-consumers/goods/second-hand-goods

unless im "in trade" CGA doesnt apply.

fair trading act applies

There shouldnt be burden of proof to me especially because its a phone. anything can go wrong with one drop of the phone even if it was in a case.

he cant prove that the phone was faulty as soon as he got it. 1 day seems like a short time but its enough for anything to go wrong.

Edit: I can get the person who fixed it to confirm via phone or email that the phone was in great working order when it was getting refurbished.

The buyer cannot prove that the phone was faulty before it arrived because it wouldnt have been. when it left me it was turned off, safely packaged and sent via nz post courier. he would have got it, turned it on, plugged it in, blah blah and boom. have a problem now.

not my fault.

Edited August 15, 2014 by QUBE

[Tidy30 38]

Sorry if i am repeating something, didn't scan the entire thread. All you have really is your word and his. So back up the integrity of your word by showing your previous sales and feedback. Make it clear you do this a bit and scamming someone is not a beneficial thing for you to do.

A lot more likely to side with him if this was like the first thing you sold and it didn't work, a lot more likely to side with you when we see you've sold lots of other stuff in the past.

[M3_Power 636]

Whilst the referees are not sworn in Judges, they are usually very experienced lawyers.

When you use the words "refurbished professionallyl" you can bet your arse the referee will point the burden of proof on you to back that up.

If I bought a car that was described as "mint", "excellent condition" engine "professionally rebuilt" and the moment I got it it started to have a vanos knock, I'd also be taking the seller to the tribunal.

Of course the other guy could just be bluffing, so you can take your chances.

I am not the referee that's going to adjudicate this so you are free to do what you want. But I do disagree with majority on here about what's the right response in this case.

Edited August 15, 2014 by M3_Power

[sonic_attack 89]

If it's advertised in "excellent condition" I'd expect that. Some blue screen fault on arrival regardless of how it was caused isn't excellent condition.

He's paid for something in "excellent condition" but what's turned up isn't. I'd be giving the full refund and then taking up the damages with the carrier. There's a $200-$250 insurance cover isn't there?

[qube 3570]

I totally understand what you are saying.

yes, if what he claims is true about the phone, the buyer is the one people would feel sympathetic towards but this is only really the case if I (as the seller) was trying to scam him of offloading a faulty phone. This is what he believes is the case, and what some others might think.

Yes i know its my word against his but if for example i was his friend, or he was my friend, and this was a private sale. He knew my integrity and the fact that i wouldnt try to scam a friend, bought a phone off me and it went wrong. he would understand, wouldnt take me to DT and would try to settle it like a sensible person would.

what difference is there if he actually regarded me as a normal, legitimate seller trying to sell honest items as I always have done it in the past.

it isnt a case of "misrepresentation" as it was represented correctly.

"mint condition" and "excellent condition" accurately described the phone when it was in my posession.

professionally refurbished applies to the 4 parts mentioned and there doesnt seem to be anything wrong with that.

i have 350 odd independent feedback on tm and he has 220.

i dont think this will be the deciding factor however.

[qube 3570]

how can you know if it wasnt his own fault that caused the problems?

[sonic_attack 89]

What does his TM feedback suggest?

I reckon 220 odd individual feedbacks should be a fair representation of someones character. That's a broad generalisation I know, but it should show if he's a PITA buyer or seller. He got back to you within 1 day of receiving the item, that's a good indicator that somethings up.

I personally don't think your responsibility ends at the close of auction. He's shelled out $300 for an item listed as "Excellent Condition" and what's turned up isn't. He's standing there looking at his excellent condition phone with a blue screen with a big line running through it and $300 lighter in his wallet thinking "WTF?!?".

Me personally, i'd be taking it up with the carrier and claiming the maximum.

I don't think it's his responsibility to deal with making it right, or waiting. You're $300 up and he's $300 down. By the sounds of it all he's done is open the packaging.

You could assume that the guy is dishonest, but don't be disappointed when that's assumed of you down the track. It's a tricky one, used goods are used goods and could fail anytime. I don't think it's unreasonable for something to turn up in good working condition though, that's what I would expect.

[qube 3570]

i checked the delivery date, he got it on thursday 11.30am and emailed me on sunday.

that gives him plenty of time to mess it up its a phone. plug it into a virus infected computer or drop it.

im up 300 minus a Perfectly working phone.

if i refund him the full 300 hes back to square one but im at a loss with a supposedly faulty phone.

his feedback is good, i dont blame him to be a fraudster or scammer. My point is that this is what happens SOMETIMES in a sale of used goods.

Ive checked the Consumer affairs website. buy now on trademe is regarded as a private sale. no CGA and no Fair trading act.

I dont even think something happened in transit. it might have just gone wrong on its own.

its not like this is a piece of wool clothing that just unravels itself. its a phone, an IPHONE they can break anytime and this is an iphone 4 released some 5 years ago...

[M5V8 337]

the dude is buying a 2nd hand iphone 4, sight unseen, off trademe. there's some risk implied with the purchase. The phone has to be a few years old.

Have you tried offering him $150 and call it "stress relief payment" and move on?

he could probably get the phone fixed for that. save him the time and cost of the tribunal.

at the very least at the tribunal you could state since he offered no evidence as to the fault it was the best you could do.

[sonic_attack 89]

I was in a similar situation last year, well not me personally but the mum of my son went and and bought some little MG hatch (because it was purple)

Within 600KM the rubberband transmission needed a full rebuild. $2800+

The previous owners came through with $1000 and I was trying for full refund. She'd had it for a week and had driven to TeAroha and back and shopping around town a few times. My immediate thought was "Motherf#@kers..." Who knows though. Used goods are used goods. Sellers were regular folk, tidy and presentable and seemed genuinely shocked. They're in the same boat though, wondering how this stupid woman could have destroyed the transmission within a week when they'd been using the car fine.

[yng_750 247]

Yea ask for the telecom repair report.

[sonic_attack 89]

i checked the delivery date, he got it on thursday 11.30am and emailed me on sunday.

that gives him plenty of time to mess it up its a phone. plug it into a virus infected computer or drop it.

im up 300 minus a Perfectly working phone.

if i refund him the full 300 hes back to square one but im at a loss with a supposedly faulty phone.

his feedback is good, i dont blame him to be a fraudster or scammer. My point is that this is what happens SOMETIMES in a sale of used goods.

Ive checked the Consumer affairs website. buy now on trademe is regarded as a private sale. no CGA and no Fair trading act.

I dont even think something happened in transit. it might have just gone wrong on its own.

its not like this is a piece of wool clothing that just unravels itself. its a phone, an IPHONE they can break anytime and this is an iphone 4 released some 5 years ago...

So you'd be cool with the same scenario in reverse?

I'm not judging you BTW lol.

I doubt there's a person on the planet who'd respond with casual acceptance upon being $300 down and holding a busted item having been described in excellent condition.

[qube 3570]

like i said to him a thousand times, i would be fine to pay him some "stress relief payment" to get past it all but he only wanted a full refund and i wasnt going to just casually accept that.. cars and phones are much alike, they can develop problems at any time and any place. your sons mother got caught unlucky that it happened to her at that moment but hey what do you expect buying an MG hatch in purple! same thing as what do u expect buying a used iphone 4? just because it develops problems a few days or a few weeks down the line it doesnt mean that i somehow programmed it to happen at that moment after its sold.

If i was trying to sell a broken phone i would sell it as a broken phone. i gain bad rep and unhappy faces if i try to pull some scamming stint like this on purpose. I tried to make it right and he only wanted it his way or the highway. so highway it is..

[qube 3570]

it doesnt matter if its $3 or $30000 the principle is that he basically accused me of selling him a faulty phone and didnt want to negotiate any other deal than a full refund.

a full refund would NOT be fair to me would it?

edit:

btw i would never buy something like this sight unseen, and if it had problems down the line i would get an assesment, talk to the seller and negotiate something half way, compromise with the fact that its not exactly anyones fault, its just the whole process of buying and selling used goods.

this guy obviously doesnt understand that things actually do go wrong sometimes.

Edited August 15, 2014 by QUBE

[sonic_attack 89]

That's up to you. It's a lose/lose scenario.

[M3_Power 636]

it isnt a case of "misrepresentation" as it was represented correctly.

"mint condition" and "excellent condition" accurately described the phone when it was in my posession.

professionally refurbished applies to the 4 parts mentioned and there doesnt seem to be anything wrong with that.

The way the referee would view this would be "professional" = somebody that does phone repairs for a living - so unless you can show that (and you don't seem to be able to) then I would say that's a fairly substantive misrepresentation of fact (which is what the law looks at).

I stand by what I've said ... your intentions to scam or otherwise is bit irrelevant on the point of misrepresentation - Courts and tribunals look at FACTS ... the fact of the matter is you've sold and described a phone that was mint and excellent and refurbished by someone that does phone repairs for a living and the phone is represented thus as trouble free (reasonable persons test) which it obviously isn't when it turned up and used for a short duration.

Of course they might not award him a refund, it could just be a repair cost (which he'd have to show) to put 'right the wrong' so to speak (putting the purchaser in a position he or she would have been had the misrepresentation not existed).

But as I said, not everyone go through with their threats, so you do have a couple of options from here.

Edited August 15, 2014 by M3_Power

[qube 3570]

the phone was repaired by a professional repair technician and i can prove that. no worries

[deeveus 81]

If you're not "In Trade" then you aren't a dealer/company therefore the CGA doesn't apply, is it just me or is the picture on that listing with the screen working fine? IMO you can walk away and I seriously doubt anything could come to it or you could give the guy a refund.

That's just my 2 cents..

I was in a similar situation last year, well not me personally but the mum of my son went and and bought some little MG hatch (because it was purple)

Within 600KM the rubberband transmission needed a full rebuild. $2800+

The previous owners came through with $1000 and I was trying for full refund. She'd had it for a week and had driven to TeAroha and back and shopping around town a few times. My immediate thought was "Motherf#@kers..." Who knows though. Used goods are used goods. Sellers were regular folk, tidy and presentable and seemed genuinely shocked. They're in the same boat though, wondering how this stupid woman could have destroyed the transmission within a week when they'd been using the car fine.

This is what pre-purchase inspections are for, it may have saved you. I think they were very lucky to get $1000 out of them! If it was me and I sold you a car and done 600kms in it then I wouldn't be refunding. If it was a dealer then yeah, you'd be entitled to a refund.

[sonic_attack 89]

If you're not "In Trade" then you aren't a dealer/company therefore the CGA doesn't apply, is it just me or is the picture on that listing with the screen working fine? IMO you can walk away and I seriously doubt anything could come to it or you could give the guy a refund.

That's just my 2 cents..

This is what pre-purchase inspections are for, it may have saved you. I think they were very lucky to get $1000 out of them! If it was me and I sold you a car and done 600kms in it then I wouldn't be refunding. If it was a dealer then yeah, you'd be entitled to a refund.

It just turned up in the driveway, a gazed it it shaking my head while walking past. My first words were "WTF is that?"

Totally out of my control, and yes you're right. It was sold when running and replaced with a Nissan Bluebird.. lol.