Grey Import/Sale of Goods Act

[Toobbloke]

Hi all - after a little advice.

At the end of November 2007, I bought a camera for my fiancee for Christmas. I went into the store (independent retailer) stating what model I wanted (Nikon D40x) and what price I'd seen it at elsewhere. The guy in the shop said that he'd match the price, so I went ahead and bought it.

Christmas day - much delight with the camera.

About five days later, I phoned to register the camera with Nikon, and thereby get the extended free warranty, £40 cashback deal and preferential price loss/accidental damage/theft insurance. They told me that I couldn't do any of that, because the serial number indicated it was a grey import and not covered by Nikon UK. They advised that the camera was probably a diferent specification, making repairs more expensive.

At no time did the seller indicate that this was the case - I wouldn't have bought an import if he had.

I rang the shop, to ask for a refund or exchange for a UK model, who said 'we don't do that'. I wrote (recorded) to them officially rejecting the goods and requesting exchange or refund and they ignored it.

I spoke to Trading Standards, who said that the SOGA applied as the goods were not as described (by ommision, one presumes) and that the expectation was that in a UK shop, it is reasonable to expect a UK camera unless otherwise stated. I spoke to Which? legal services, who agreed, adding that I had been induced into the transaction in the expectation of obtaining UK goods.

It was bought on a credit card, so I took it up with the credit card company. They messed around for some considerable time, made excuses and wrote to the shop (who ignored them too), and decided that there was nothing they could do.

Having gone back and forth for several months and got nowhere, I was about to submit a small claim and wanted to clarify a couple of points, so I rang Which again. This sime another solicitor said entirely the opposite, and that I would be unlikely to win under SOGA as you can't have goods not as described by ommission. They did say I might have a chance by saying that no contract had existed, as there had been no 'meeting of minds' - i.e. that I thought I was buying one thing, and the seller thinking he was selling another.

Now I have no idea what to do. Any suggestions?

[gni03349]

I found this link. It might shed some light on your rights etc.

All you need to know about Grey Imports

Regards

[JonCris]

Originally Posted by Toobbloke

Hi all - after a little advice.

At the end of November 2007, I bought a camera for my fiancee for Christmas. I went into the store (independent retailer) stating what model I wanted (Nikon D40x) and what price I'd seen it at elsewhere. The guy in the shop said that he'd match the price, so I went ahead and bought it.

Christmas day - much delight with the camera.

About five days later, I phoned to register the camera with Nikon, and thereby get the extended free warranty, £40 cashback deal and preferential price loss/accidental damage/theft insurance. They told me that I couldn't do any of that, because the serial number indicated it was a grey import and not covered by Nikon UK. They advised that the camera was probably a diferent specification, making repairs more expensive.

At no time did the seller indicate that this was the case - I wouldn't have bought an import if he had.

I rang the shop, to ask for a refund or exchange for a UK model, who said 'we don't do that'. I wrote (recorded) to them officially rejecting the goods and requesting exchange or refund and they ignored it.

I spoke to Trading Standards, who said that the SOGA applied as the goods were not as described (by ommision, one presumes) and that the expectation was that in a UK shop, it is reasonable to expect a UK camera unless otherwise stated. I spoke to Which? legal services, who agreed, adding that I had been induced into the transaction in the expectation of obtaining UK goods.

It was bought on a credit card, so I took it up with the credit card company. They messed around for some considerable time, made excuses and wrote to the shop (who ignored them too), and decided that there was nothing they could do.

Having gone back and forth for several months and got nowhere, I was about to submit a small claim and wanted to clarify a couple of points, so I rang Which again. This sime another solicitor said entirely the opposite, and that I would be unlikely to win under SOGA as you can't have goods not as described by ommission. They did say I might have a chance by saying that no contract had existed, as there had been no 'meeting of minds' - i.e. that I thought I was buying one thing, and the seller thinking he was selling another.

Now I have no idea what to do. Any suggestions?

The solicitor is wrong, you can have a breach of SOGA by omission particularly if that omission has a material effect on the goods supplied (such as no valid warranty).........There is nothing in SOGA which states that for there to have been a breach the retailer must make inaccurate claims in writing

As has been stated if the goods are purchased from a UK commercial seller you have a reasonable expectation that the goods comply with UK spec & are covered by warranty. If not then the retailer must either accept the return of the goods & refund or re-supply you with goods that do

The warranty is the responsibility of the seller with whom you have the contract & not the manufacture

If you have to take legal action include your credit card company as a defendant as they are equably liable under sec 75 of the CCA

Also as it's common for credit card companies to try & escape their sec75 obligations I should ask again that they resolve this & refund your money.........Do this in writing & at the same time advise them of your intention to take legal action if they refuse to comply

[Toobbloke]

Thanks JonCris

I sort of suspected as much - the second solicitor just didn't seem to make sense. Both parties have been given ample opportunity to deal, so I think I'm off to my first foray into the world of the small claims court - with both the shop and credit card company named.

I'll let you know how I get on.

Thanks

[Toobbloke]

I'm just putting together my particulars of claim on this. How much detail should I put?

Is it more sensible to keep it simple (along the lines of the description I posted initially), or are there specifics that would be important to include?

Thanks again for your help

[JonCris]

As KISS as poss then post it here for further comment

[BankFodder]

Also,make a complaint under the new CPUT regs. There is a paragraph which deals exactly with grey imports
The Consumer Protection from Unfair Trading Regulations 2008 - draft

[Toobbloke]

Ok, POC as a rough idea. Please pick it to bits if it needs it!

• On Tuesday 20th November 2007, the claimant bought a Nikon D40x camera and lens from Defendant 1 as a Christmas gift. This model was selected specifically with the knowledge that a two year manufacturer’s warranty was available for this specific model.

• The transaction was completed using a Visa card issued by XXXX Bank plc (Defendant 2).

• At no point was any reference or description offered suggesting that the camera was anything other than the expected UK specification model, or that any other issue should be considered. Consequently, the claimant was induced into purchasing the item by the omission of these facts.

• The camera, having been wrapped and prepared as a gift, was opened on Christmas day.

• Several days after this – on or about the 2nd January 2008, the claimant attempted to register the camera for the warranty.

• The claimant was informed by the camera manufacturer that the camera was a ‘grey’ import, and consequently not covered by any warranty by them.

• The claimant attempted to resolve the issue with Defendant 1 on the same day, rejecting the goods and requesting an exchange for the UK model or a refund. This was rejected by the defendant.

• The claimant sent several letters to Defendant 1 by recorded delivery, attempting to resolve the issue. The letters were signed for, but no response was received.

• The claimant therefore raised the issue with Defendant 2, being joint and severally liable under the Consumer Credit Act 1974 (as amended). Defendant 2 has rejected this claim.

• The Claimant therefore claims the sum of £380.00 for the cost of the camera.

• The Claimant also claims interest in accordance with s.69 of the County Courts Act 1984 at the rate of 8% per annum from 20/11/07 to 20/06/08 being £17.04 and continuing at the daily rate of £0.08 until judgement or sooner payment.

I might have over egged it, as I'm not sure how much I need to put in up front and how much to hold back for a hearing. I'd also need advice about if I've quoted the right act for the Credit Card company being liable.

Thanks for your help - I'll submit it after your comments.

TB

[Toobbloke]

Thanks for that Bankfodder - would I be able to use the CPUT regs as the transaction was performed before the regs came in?

Even if I can't, it's not a bad stick to beat them with

Cheers

TB

[JonCris]

Where you mention your correspondence mark them as items of evidence being attached to you POC. Mark each by number such as E1 E2 etc & refer to them in the POC

[Toobbloke]

All advice taken, and N1 submitted (at last).

I'll keep you updated!

TB

[Toobbloke]

Just a quick update - submitted the paperwork to the court Which they messed around with for the best part of a month before actually processing it).

Credit card company have decided to fight the claim.

Shop has offered a refund of the original price, but no compensation, interest or court costs. I said no.

If one party wants to fight and the other does not, can a judgement be made against the one who doesn't respond?

Either way, I'm looking forward to this now.

[JonCris]

on what grounds are the CCC fighting the claim??

[Toobbloke]

Not sure of the grounds yet - they've just submitted the form to say that they are disputing the whole amount. I think that gives them 28 days to file a defence, which I eagerly await.

I checked with the court today, and the other party (the shop) has not acknowledged within the 14 days of being served, so I can apparently ask for a judgement from today. Do you think I should?

Cheers

TB

[JonCris]

The 28 days runs from the time of service & yes you should apply for a Judgment by default. Just make sure as to when your application will be put before a Judge

[Toobbloke]

Got the judgement in my favour for the full amount (the shop didn't file a defence).

Yesterday I took the item back to the shop, and obtained a cheque for the full amount. I can finally give my fiancee her Christmas present from last year! Haven't benefited apart from getting what I originally wanted, but that's good enough for me - although there's a bit of me that feels that the shop should be dealt with for their dodgy dealings.

For info purposes, the Credit Card company's defence was that until the shop was proved to be in the wrong, then they shouldn't be liable. They even filed a counter claim against the shop.

Ultimately, a victory. Thank you so much for all your help and advice - I would not have been able to do this without it.

[JonCris]

Report them to TS & that's not what the CCC claimed originally. They said the weren't liable period