Non-refundable deposit set by seller. Need some advice.

[Deimos]

I'll keep this short and simple, so as not to confuse (and thanks in advance for any help/advice)

 

I approached a computer programmer who was offering their services at a discounted rate (£10 an hour)

I needed some coding done for my website (Vbulletin forum, like this one)

 

I sent him an email and explained what I needed, we sent a couple of emails back and forth to go over specifics and agreed on the following

 

1) 30 hours of work, so £300

2) 50% Non refundable deposit, if I wasn't happy after 7 days

3) 30 day deadline for completion

 

Now, as I understand it, when terms are agreed apon like the above ones and the first payment for services is made, they become part of a contract, correct?

 

Well, 30 days came and went and no product (coding) was ever delivered, so it's my understanding that he violated/nullified the contract.

 

He's refusing the refund the 50% deposit, claiming I didn't ask for a refund in the first 7 days, therefore he has the right to keep it

 

But given that it was part of the contract terms, and he broke said contract, doesn't that then mean, that part of the agreement is also invalid?

 

Going by what I've read on Consumer Protection (Distance Selling) Regulations 2000, the money should be refunded.

 

In particular, these sections

 

3.16 A contract must be carried out within the time limits agreed with the consumer as stated in your terms and conditions.

3.18 If you are unable to meet the deadline and have not agreed an alternative delivery date with the consumer, you must refund all money paid in relation to the contract including the postage and packaging.

And this part especially

 

3.19 Any credit agreement associated with the purchase is also automatically cancelled. For more information about refunds see paragraphs 3.46 to 3.54.

And possibly this snippet to

 

If the goods or services do not conform to the contract and consumers exercise their rights to reject them, you will have to refund their money.

 

Additionally, he claims it took longer than the agreed 30 hours and took 40 hours in total, so he now claims I owe him an additional £100 on top of the agreed price of £300

 

Any thoughts and advice would be great.

[BankFodder]

Has he completed the project?

 

If he has then the best you will be able to claim is compensation for any loss that you have suffered.

 

If the job hasn't been completed then send him written notice that it is not completed in 7 days, that the contract will be terminated and you will seek refund of all money.

 

I expect that you will have to go to county court to do this so don't bother to make threat unless you are prepared to go the whole way.

 

the process is easy and I rate your chances of success as very good.

 

By the way, if you run a vB forum, then our webmaster often does all sorts of coding and I could put you in contact with him - although £10 per hour is very cheap.

 

Also, have you seen our AutoLinker plugin which we have developed specially for vBulletin forums. It is available for sale.

[Deimos]

Thanks for the reply BankFodder

 

To answer your questions, no, he never completed the work

 

It was about 3 days after the deadline had expired that I finally got a defiant reply saying that he wouldn't refund me

 

There's a long discussion thread on the original forum where I found his advertisement

He's adamant that he's done no wrong, that I didn't claim a refund within the 7 days he gave me.

 

Argh, the guy is a nightmare.

[BankFodder]

So to recap. He agreed to do certain work which he said would be 30 hours over a period of 30 days. He received a deposit for the work but didn't meet the deadline so that although he is not asking you for the money for all of the 30 hours he spent, he won't retrun the deposit.

 

Is that correct?

 

If it is then here is the situation.

 

A non-returnable deposit would be non-returnable if the non-completion of the contract had been caused by you because you cancelled or obstructed him in some way - maybe by not communicating as agreed or by not supplying him with necessary material such as photos or specs etc.

 

However, where the contract has not been completed because of something which he has done - or failed to do then not only must he return the deposit, he must also compensate you for any losses you have reasonably suffered as a result of his contractual breach.

 

Frankly if you contract with any computer programmer at £10 per hour then you are asking for trouble.

 

I would send him one letter before action giving him 7 days only to return your money or else you will sue him for the money plus some reasonable figure in compensation - assuming that you have suffered some identifiable loss.

 

Don't bluff this. If you aren't prepared to go ahead with your threat then let it go and be prepared to pay sensible money for sensible programming and a mature responsible attitude in the future.

 

Buy our small claims guide to learn about bringing a court claim.

It is very straightforward.

[Deimos]

So to recap. He agreed to do certain work which he said would be 30 hours over a period of 30 days. He received a deposit for the work but didn't meet the deadline so that although he is not asking you for the money for all of the 30 hours he spent, he won't retrun the deposit.

 

Is that correct?

 

Almost

 

30 hours/30 days part is correct

But, after the contract had expired and several days had gone by, he sent me an email to say I would've owed him an additional £250, because the product hadn't been delivered in the agreed time and he had spent an additional (unapproved) 10 hours on it, taking the total from £300, to £450

 

The email read as follows

 

You paid a deposit of £150, deposits by their very nature are non-refundable, I initially gave you the option that if, after 7 days, you were not happy with my work I would refund 100% of the deposit. You did not take up this offer, and so the deposit reverted to being non-refundable.

 

On top of this, I have taken a further 10 hours, on top of the 30 I quoted to begin with, but I am not going to expect the final £250 to be paid as you have not received the final product.

 

I admit that my contact with you could have been better but having to deal with several issues here my mind was elsewhere. If I had an issue free month I would have had this done three weeks ago, but unfortunately the best laid plans do not always go to plan.

 

Therefore the refund is denied.

 

Since then, I did submit a claim via the moneyclaimonline (small claims court) system, which has been sent to him, he mentioned it in a further email when I tried to clarify why I am eligible for a refund of the deposit, he said

 

I have spoken to several people, including 3 different lawyers, who all say that non-refundable deposits do not have to be refunded.

 

You still have the £250 outstanding on your account, If you want what I have done, then you can pay that and I will forward you the work within 7 days. If the courts find in my favor on the small claim you have filled, which I am sure they will, I will be sending it to collections.

[BankFodder]

Can we see a copy of your POC and of his defence please.

 

Have you sued him as a trader? You should do in order to have the case transferred to your hime court - assuming he is not in the same part of the country as you.

[Deimos]

Not sure if I've sued him as a trader, I simply filled out the moneyclaim form, using his company details and address.

 

I'm not sure what POC means, point of contact?

 

I have the email history here - http://www.uoforums.com/deph/WHT-110510.htm

 

(Needs to be read from bottom, to top)

 

It includes all the history and agreements etc.

[BankFodder]

poc

[Deimos]

Oh, sorry

 

My claim read as follows

I hired Paul Stuffins from Dephnet-Technologies.com to program a modification for an online forum software, the agreed deadline was 30 days, the agreed price was for 30 hours of PHP work, calculated at £10 per hour.

 

The deposit was for 50% and the remaining balance paid apon delivery, the deadline passed and no delivery was made, so I requested a refund of the deposit, which was refused, twice by Paul Stuffins.

 

Given that the contract was never fulfilled, I believe I am entitled to a refund, as the programming was never delivered and the agreed deadline had passed.

[BankFodder]

So where is the defence?

[Deimos]

I don't know what his defence is

 

The moneyclaim online site hasn't received it, I assume? As it just says "Issued" in the status bit

 

The status bit says

 

You submitted a claim on 14/06/2010 at 16:36:37

 

Your claim was issued on 15/06/2010

[BankFodder]

OK. He has 14 days to file his defence. keep an eye open for it and come back here once you have it. Monitor the MoneyClaim site and the moment that his time lmit is up then enter judgment if he hasn't met his dealine.

Don't let even a moment pass after the expiry of his dealine.

Howeve, I suppose that he will defend, so let us know what his story is.

 

There is nothing else to do until then

[Deimos]

Thankyou BankFodder, I greatly appreciate the advice.

 

And I am indeed checking the site several times a day and will definatly do as you've suggested.

[tim2718281]

Since then, I did submit a claim via the moneyclaimonline (small claims court) system, which has been sent to him, he mentioned it in a further email when I tried to clarify why I am eligible for a refund of the deposit, he said

 

Oh, you claimed already. I was going to advise you to make the claim in person at your local court, rather than use MCOL.

 

The reason is, if the case is defended, MCOL has to transfer it to a local court. The general principle seems to be that if the case is an individual v an organisation, the case would be transferred to the individual's local court.

 

In your case, DephNet Technology is an individual's trading name, so the case may be individual v individual.

 

I assume - and people here will soon correct me if I'm wrong - that MCOL will automatically transfer the case to the defendant's local court if the case is individual v individual, whereas if you file in person at your local court, it will remain there unless the defendant requests a transfer.

 

Still, you must have Dephnet's address to have filed the claim; so you'll know whether their local court is reasonably convenient for you. (The courts do not take sides; though they may take into account individuals' difficulties in travelling. I don't know what they do in a case between two individuals, one of whom lives in Cornwall, the other in Northumbria. Maybe they'd ask you to agree a court location; or transfer the case to London.)

[BankFodder]

Even if it is an individual trader, if the defendant is described as "John Smith - sole trader", this would geberally be enough to have the case transfered to the non-trading litigant's court.

 

For instance, if you want to sue someone who is trading on ebay, you would be best off describing them as "John Smith - trading as "

[Deimos]

He claims to be a self employed person, with the trading name of Dephnet Techologies.

 

To be honest, I don't believe a word he says anyways, so it might be a load of nonsense.

[Deimos]

Quick update, the page now says

 

DephNet Technologies issued a defence on 21/06/2010

 

Your claim was transferred to WORTHING on 21/06/2010

 

 

So it is coming to my local court, not his I believe (Worthing is my home town)

[BankFodder]

So we need to see the defence

[Deimos]

Does that get sent through the post? because there's nothing attached on the moneyclaim website

The PDF/TXT document is my original claim.

[BankFodder]

I'm not sure. I can't remember. Phone Northampton and ask them. They are normally very helpful

[Deimos]

I haven't received anything yet, but I'm going to wait till tomorrows post before giving them a call.

 

The defendant in question has told me...

 

"I have received the questionnaire, and sent it back, requesting that the case be transfered to Yeovil, as I am an individual and not a company."

 

And yet, he advertises himself as...

 

Paul Stuffins, General Manager, DephNet Technologies

 

Will the court transfer it back to his home court?

[BankFodder]

You have said that the case has already been transferred to your own home court.

 

You must write a letter to your home court and point out that you are suing him as a business and that the entire claim is based upon a failed business contract and therefore it is disingenuous of him to suggest that he is being sued as a private individual.

 

Take the letter to your local court and make sure that you get a receipt for your letter if possible

[Deimos]

Righto, who would I address the letter to? The listing officer?

On the HMCourts page I see 4 contact names

 

Listing officer

Deputy Court Manager

Customer service and Court Manager

[BankFodder]

You address it to the district judge. Take the letter to the court. Ask to see the office manager and hand the letter to that person. Be very nice. You need the court admin staff on your side.

[Deimos]

Ok, thanks again for the advice.