Deposit to test drive - refusing to refund *WON IN COURT*

[joegarthy]

If you can help with this, I'd be truly grateful - I've just had the most aggressive trader on the phone telling me to f*** off.

I went to see a car last weekend, it was inside a warehouse, crammed in alongside others, and when I asked about test driving, I was told that i'd need to put down a deposit to take the car off sale, and then it would be prepared for sale subject to test drive.

I phoned on Monday to give the £500 deposit refundable subject to test drive.

I drove the car yesterday, ready with my part-ex to do the agreed deal but didnt like the car.

Dealer tells me there is nothing wrong with the car and that we had agreed the deposit 'Subject to test drive no faults found' - i.e the final 3 words implying that there would have to be a fault for me not to buy the car.

So aside from him lying, and it now being my word vs his (naively I have no written record), what can I do? Doesnt seem right that even if you take his 'no faults found' line that this is fair, not to mention the fact he is lying.

Any help, in whatever form would be very welcome.

Thanks in advance

[gyzmo]

definitely something to report to Trading Standards. If he's done this to you he's more than likely to have done it to someone else, and car dealers are a TS favourite at the moment.

[jonni2bad]

In the absence of a written contract you (or the dealer) must refer to a verbal contract, or 'agreement'.

In this case, you say the terms of the deposit were only to secure the facility to test drive and no other terminology was attached.

Whilst you should certainly contact your local TS office, you should also now begin the process of recovery of the £500 by putting into writing your demand for immediate refund.

Ordinarily, we would tell people to give 14 days for a response, followed by a second letter (Letter Before Action) giving a further 14 days before you then start court proceedings against the dealer.

Since we are talking about a substantial sum of money and the case is pretty clear cut, I don't believe you need to give those timescales, so would advise you to deliver your first request asap (by hand if you prefer) and title it LETTER BEFORE ACTION, giving the dealer 7 days to refund you otherwise you will start court action.

Make sure it is dated the day you send it / hand deliver it.

You can state that there has been a breach of contract (the verbal one) and you demand the immediate return of your funds.

Contact your local TV news department - they love a good consumer story - and let them know about your plight. If they like the 'story' they will contact the dealer who is likely to seriously reconsider his position, rather quickly.

[joegarthy]

Thanks for the response.

You say this is clear cut, but cant this just turn into his word vs mine?

Kind regards

Joe

[jonni2bad]

LETTER BEFORE ACTION

Dear Sirs

I visited your company on XX March 2008 and spoke to one of your employees, Mr XXXXXXXX about a car which you had available for sale.

I asked if I could test drive the car and was informed by Mr XXXXXXXX that in order to do so, I would have to place a £500 deposit on the vehicle to take it off site and that the deposit was conditional to a satisfactory test drive.

There were no other conditions imposed in relation to this deposit.

I duly telephoned your company on XXth March to place the deposit of £500 which was made by XXXXXX Card

After my test drive, I decided that I did not like the vehicle and did not wish to purchase, at which point Mr XXXXXX informed me that the deposit was "...Subject to test drive - no faults found."

This was clearly at odds with the initial verbal contract formed between us on XXth March

Further, when I telephoned again on XXth March, your employee told me to "XXXX off" (please note that you should include the full word in your letter) which I find wholly unacceptable and I am sure you will agree is entirely inappropriate conduct.

I demand the immediate return of the £500 deposit and unless this is completed by xxth March - 7 days from the date of this letter - I shall begin legal action in the small claims court to recover my money, plus Statutory Interest, plus costs and without further notification.

I shall also be contacting the local Trading Standards department and XXXXX TV, who I am sure would like to know how you consider it appropriate to withhold monies from your potential customers, and not least the way that you consider it customary to talk to them when they have a valid complaint to make.

I look forward to your response and refund of my money within 7 days.

(Sign it!!!)

Mr AAA

[jonni2bad]

Originally Posted by joegarthy

Thanks for the response.

You say this is clear cut, but cant this just turn into his word vs mine?

Kind regards

Joe

Yes, it can.

In which case the dealer then has to consider the viability of this being awarded in his favour if the case goes to court.

A Judge in a small claims court would consider the 'evidence' of both sides and would have to decide upon the balance of probability. I, nor anyone else, could not tell you that you were bound to win, but simply would say that if you present your case in a calm and factual manner, then you would stand a damn good chance, not least backed by your recollection of the telephone call where they told you to "**** off" !!!

[joegarthy]

thanks (again) - my question to you is if he does not act, is not bothered about TS and the press, and insists that he stated that it was 'subject to test drive no faults found' all along (from initial meeting) - how will this likely play out in the Courts?

[joegarthy]

ignore that last question - you've already answered it.

[jonni2bad]

Also, did you pay the deposit by Credit Card by any chance?

[joegarthy]

i did - but they tell me that the assumption (unless i have paperwork to the contrary) is that the deposit is non-refundable and that they cannot claw back the monies....Also they cant stop him charging me again as he has my details but they would then dispute this....Seems ridiculous...

I feel so angry it's unbelievable, not least because he's hung up on me 3 times, and that "i'm threatening him with Trading Standards!"

[jonni2bad]

Don't be put off by anything he says, and DO try and keep all communication to letter from now.

Don't phone them, write to them. IF you have any way of recording your phone calls, in our out-bound, do so.

The fact that they say they won't talk to you because you are talking to TS an indication, to me, that they have something to hide.

If it were my company and I knew that I had done no wrong, I would welcome TS or indeed anyone else. If you are right, you are right, simple.

Keep things unemotional, keep it in writing, fight them the right way and get your money back.

[joegarthy]

question - given he's not a nice piece of work, do I need to put my address at the top of the letter? His actions are either 1) pay me the money back 2) do nothing and meet me in court 3) reply by e-mail.

would this be ok?

[Weird Al Yankovic]

Originally Posted by joegarthy

Thanks for the response.

You say this is clear cut, but cant this just turn into his word vs mine?

Kind regards

Joe

I would suggest a small claims court would almost certainly find in your favour as the seller is a trader yet he is relying on a rather ambiguous verbal agreement to secure a deal.

This would be noted straight away.

[jonni2bad]

Originally Posted by joegarthy

question - given he's not a nice piece of work, do I need to put my address at the top of the letter? His actions are either 1) pay me the money back 2) do nothing and meet me in court 3) reply by e-mail.

would this be ok?

Yes, you do need put your address on the letter - how else would he be able to write back?

I would not use emails, personally. They might not have the same impact as the written letter if the case went to court. Better to stick to ways which have been tried and tested and are generally accepted as the 'norm'.

If there is ANY sign of threatening behaviour, verbal or written, even implied, you must contact the Police immediately.

[Conniff]

It's just as well this happened now and not after purchase. From the attitude displayed, if any problems had shown up with the car, it looks like you would have had the devil getting them sorted and would have likely ended in court in any case.

Best of luck Joe.

[joegarthy]

Ok - letter went out to trader stating facts. He received it yesterday recorded.

Response received by return! Dreadfully written stating that I should take him to court and that he has legal representation!

So here we go...small claims....any advice willingly received.

Cheers