Hi Andrew,
Sorry to hear of your misfortune.
While it is possible that the unit will work at 110 v. your monitor is not
likely to want to run at that voltage. You also risk the prospect of
problems caused by confusing which cable is which under your desk.
Firstly, put the problem in writing to the seller. Send a copy in writing
to Auction Traders along with a covering letter requesting their involvement
in the dispute and for them to advise you of their procedures. Do this by
email but also invest a few dollars and send a hard copy by "secure post" or
"registered mail" to their company secretary. This is your "buy -in".
Getting your money back will depend on your negotiation skills and on how
good a "poker player" you are. Auction Traders need to see the benefits of
being on your side vs the costs of being other than "on your side". You
need to lead them to this revelation without threatening them. You then
need them to feel obliged to act on your behalf. In the event that the
seller tells everyone to "rack-off", you need Auction Traders to put their
hands in their own pocket.
This is all possible.
Their "Terms & Conditions" don't have the air of having been composed by top
flight legal team at Allens, Mallesons or Minter Ellison. Rather they have
the distinct odour of something that was copied from elswhere and modified
to suit by the companies managers. ( typos, spelling mistakes, errors in
phrasing and case, etc. - perhaps somebody's sister was dating a second year
law student.) My point is they appear to have "cheaped out" on having their
T & C properly put together.
If Auction Traders have to refer this to a solicitor it will cost them
$1,000 minimum. If they have to put on a defence in the Federal Court,
$15,000 to lodge and another $20,000 to run - minimum.
Given the nature of their business they are an attractive target for both
ACCC and Fair Trades. It is therefore more likely that you will be able to
persuade some government authority to run the matter for you. COST TO YOU -
SOME PHONE CALLS AND A LOT OF NAGGING.
Auction Traders business is dependant on the confidence of prospective
buyers. Confidence that is unlikely to endure any negative publicity much
less a "well promoted" negative web site. Your posting to SLUG has already
cost them some "buyer confidence".
Most auction sites take a fairly dim view of misleading descriptions and
from the wording of their condition #15 (quoted below) one can reasonably
assume that Auctiontrader.com.au are no exception.
They also appoint themselves as sole arbiter in any disputes (condition #2
below).
Thus implying that they have the power to effect a satisfactory outcome in
the case of such a dispute. And it is implied that they will do so with
respect to the laws of the State of Victoria ( their Fair Trades Act mirrors
the Federal Trade Practices Act and is almost word for word identical to the
NSW Act) and the Laws of the Commonwealth of Australia. See condition #1
"as permitted by Australian Federal Law, and the Law of the State of
Victoria, and if any portion is held invalid".
All of these jurisdictions would take a dim view of the sellers
"advertisement" for its ommissions.
Firstly ask them to deliver on this. They have been as unwitting a victim
of this unscupulous seller as you have.
If they don't you have an action against them under Trade Practices on the
basis that their published terms and conditions are a "misleading
advertisement".
The relationships between the seller and Auction Trader is a little blured
as to who is actually making the statements about the UPS ( do Auction
Traders refer to the word "advertisement" anywhere on their site?). BUT IT
DOESN'T MATTER! Auction Trader is either the "agent" making the statement
themselves, or they are the publisher in the same position as News Ltd or
Fairfax. Their "conditions" don't make this clear - either way they are in
deep doodoo over a misleading advertisement
The commercial expedient for them is to find in your favour and do their
upmost to assist in your recovering the monies paid. This would include the
invocation of "Condition #15" and I suspect extend to providing access to
any logs or other documents in their possesion to assist in identifying and
determining the nature of the seller. They could further demonstrate their
good faith by joining you in any action against the seller.
By the publishing of their "Terms and Conditions" they have produced an
"advertisement" as defined in Federal Trade Practices Law.
Their is the question of the exact content of the advertisement - eg: Was
the question of new/ second hand addressed at all? Were any statements made
as to its suitability for a particular purpose? ( including the category it
was listed under).
Further the issue of " duty of care". What advice/warnings do they issue to
"sellers" when placing ads? And what prominence do the essential parts of
these comments have? Are they bold and obvious or hidden in a great length
of continuos text?
All this said, find someone who can guide you as to the legal aspects. Is
your mate's sister (or your brother's mate) dating a 4th year law student?
What about having a beer with the guy who did the conveyancing on your
house?
The ultimate aim is to get the other party to the point where it is cheaper
and more expedient to repay your money than to do anything else.
By way of encouragement, 2 years ago a 45yr old Australian woman and her 3
employee, fledgeling cosmetics company, beat out the might of one of the law
firms named above, their NY parents/affiliates and one of the worlds largest
cosmetics companies. She never even consulted a solicitor. At their first
conference she turned up alone, listened to what the multinational's legal
team of had to say, then handed them all copies of a press release she had
prepared and the list of media contacts she proposed to send it to. Upwards
of $50 million of negative publicity worldwide. The other side threw their
cards in, formally appologised and paid for her time and inconvenience.
So Andrew, how many cards?
I'm no lawyer, although I was born in the bush, did teach "Marketing
Legislation" for several years and as an exec of various media companies,
have been involved in more than a few dozen legal stouches and a lot of
"poker games". The above is my perspective on the commercial realities of
your situation.
Good luck an please let us know how you get on.
John
"2. DISPUTE
In the event of any dispute arising from the use of the
Auction Trader system.
Auction Trader shall be the sole determinant in such
dispute. Auction Trader
accepts no liability for errors and/or omissions arising
from such
determination. "
"15. AUCTION TRADER AND USERS
Auction Trader will make the best endeavours to avoid any
misrepresentation of items
offered for sale by any selling user and is indemnified in
Clause 3 above. Should any such
misrepresentation occur Auction Trader reserves the right
to:-
a) Ban any selling user it believes on reasonable grounds
to be falsely misrepresenting
items.
b. Reserves the right to publish any information on Auction
Trader regarding selling users
history. Should Auction Trader publish any such information
it is acknowledged that that
they are indemnified in clause 3 above"
----- Original Message -----
From: "Andrew Fries" <[EMAIL PROTECTED]>
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