Can I request that Dick Smith give me an equivalent product from another brand, if the one I bought online for click & collect is 'out of stock'? Or can they simply say "sorry, refund only"? I don't want a refund as the price was cheap
EDIT: I'd liked to add that it showed in stock at the time of online order & I feel like action should be taken to teach them not to be so flippant with their computerised stock control, unless it was blatant misrepresentation.
Dick Smith Receivers say gift vouchers and deposits will not be honoured
http://www.abc.net.au/news/2016-01-05/dick-smith-receivers-v…
Ok, not sure what that has got to do with my comment.
it's up to them, but no harm in asking
They only have to offer you a refund.
Meh… got a call from a store with something I ordered online and was out of stock everywhere, still waiting for a refund. Actually… will put in a paypal dispute today rather than wait for dicks to get moving :)
If they have taken your money you do not have to accept a refund. You can demand delivery/specific performance as a valid contract exists.
For more info see my posts on QCAT in the JB Hifi thread.
Yes I thought this was the case. It makes legal sense that they are obligated - otherwise it's a form of bait & switch
They have taken my money
If they don't have the stock what do you want them to do?? I understand you've been inconvenienced and it's annoying, but what do you want them to do? They have no stock. They can't supply the sale.
I'm sure their sale posters all included the usual "While Stocks Last" byline too.
They have to reorder the item or pay some money to the other party so it can buy the item elsewhere. Only if the item was unique, and cannot be reordered or was destroyed JB Hifi can get out of their obligation to deliver up.
Example:
If you order a PS3 game such as "Ratchet and Clank - A crack in time" from JB and they say they are out of stock, they have to deliver up as more stock of that item exists. If all else fails they need to purchase it from a competitor.
If you bought the original Mona Lisa, but the Mona Lisa was destroyed through fire or was stolen, then JB could get out of delivery as they cannot possibly perform any action with reasonable effort to deliver up the item.
TLDR: If the item is not unique or rare, JB Hifi has to deliver up, even if they have to buy it from a competitor.
P.S.: "While stocks last" is irrelevant as the contract is completed once payment is taken. It is reasonable to expect that if a company is out of stock, they do not take payment. If they do, they have stock at that time and a contract comes into existence.
if only , a lot of fellow members would have scored some very very cheap stuff thanks to this site if this was true.
https://www.ozbargain.com.au/node/226263
https://www.ozbargain.com.au/node/182322
https://www.ozbargain.com.au/node/104289
https://www.ozbargain.com.au/node/221187
https://www.ozbargain.com.au/node/201845
pretty much EVERYTHING you said is wrong due to the terms and conditions of 99% of stores and the unrealistic chance of winning any legal battle against any store that does not have the t+c to protect themselves.
OK. Again:
Terms and conditions are written by the stores. They do not constitute a law. The law trumps any store's terms and conditions.
The law is reasonable - the deals you listed are borderline as pricing mistakes are obvious there and innocent mistake is another reason for revocation of contract. However, if a store does it too often, a court will hold them to it as it can be argued it is a strategy and only a negligent mistake.
I have got my things I ordered from Dick Smith, The Good Guys ($10 PS3 games as that is not a price mistake - so many people just accepted a voucher and bitched about it - I prefer to take them to a Tribunal which is easy and cheap and get my goods (and all costs back)), JB Hifi, Optus, Harvey Norman, Officeworks etc.
I have taken many of the big companies to QCAT and won every single time as it is the law that matters, not their terms and conditions.
Don't believe me? Here is an example:
Many printer manufacturers blankedly void the warranty (according to their terms and conditions) if non-original link is used. They can write whatever they like in the T&Cs. However, courts have consistently held that the manufacturer can only avoid the warranty if an ink-relevant part is concerned and even then only if the manufacturer can prove that the ink was indeed responsible.
Other example are terms and conditions contained in shrink wrap licences.
Long story short: Don't be intimidated by store's T&Cs. View them as the legal environment the stores would like to have but not the leagl environment that exists.
Being "out of stock" for a non-unique or rare item will not get you out of your delivery obligation. The price error examples you cited are slightly different.
The OP's problem is with out of stock for a common item. DS has to deliver up.
But anyway, if you prefer to believe their stories that's cool with me. I get my items and that is what matters to me. Don't want to fight with you.
The OP's problem is with out of stock for a common item. DS has to deliver up.
You're making assumptions to suit your argument. Yes, DS can't use bait advertising. But DS can run out of stock and if they can show the item was a runout item (not to be restocked or not made anymore) and it was stocked in reasonable quantity (as in if they usually sell 30 a week and the sale goes for a week then they have 30) at the time of the sale then they're okay with what they've done.
You're making an assumption that the product OP refers to is common and re-stockable. The vast majority of stock DS just cleared was on DS branded stock - not available elsewhere and it's runout (as in they're not manufacturing any more).
So yes, if you make a heap of assumptions that suit your argument, you're right. But if you actually look at what the OP was probably affected by (recent DS runout stock from their recent 70% sale) this wouldn't apply.
It is reasonable to expect that if a company is out of stock, they do not take payment. If they do, they have stock at that time and a contract comes into existence.
Except this is a very well documented issue with Dick Smith (and one of the major constraints that is causing the business to go under right now).
Their POS systems don't correctly tally stock numbers, they can and do routinely "sell" stock that is then required to be backordered (if available) or cancelled (if it's runout). Yes it's a crap system and yes it's dodgy…and that's why Dick Smith will likely be no more within a year.
Being able to "sell" stock they don't have is a well documented issue with Dick Smith right now. It is not fake, it's a systemic issue.
You are agreeing with me I see. If it is not made anymore and CANNOT be restocked or be bougt rather than DS not WANTING to buy due to costs then they are ok. But if it can be bought, albeit at higher costs, DS must take the hit, whether or not they like it or not.
Even if it is their own branded product that can be easily remade, even if it is at higher cost.
The best solution is if DS substitutes with equal quality or higher quality product. No legal issues and customer happy.
You cannot rely on a bad order system or IT forever. Once is a mistake, and then after that a business of DS size is expected to rectify it. If they choose not to, then they have to bear the consequences.
When Queensland Health had IT issues they had to fix it and their employees and the public could rightly expect that. I am sure you would not be happy if Queensland Health had said, for example, it is a systemic issue, we won't do anything about it and just live with the fact you might get underpaid or paid three months late.
Why do you cut DS so much slack? It is strange that so many business in OZ have dodgy IT systems while in the US and Europe it does not happen nearly this often and repeatedly.
It is because in OZ stores get away with it while elsewhere this is not accepted and they cannot get away with it.
You are agreeing with me I see.
No, I'm not. I'm saying you may be legally correct (notice:may, we don't have enough details to distinguish either way) and you may not be depending on the item/circumstances.
But I still find the QCAT action absolute overkill, petty and a thorough waste of publicly funded resources for nothing but some self gratification and a bit of back slapping.
Have any of your QCAT actions changed retailer policies for the masses? Or have they just been very expensive (to the state, not yourself) self-serving pursuits that helped you "stick it to the man"?
Look if there's some gross injustice here then I'm all for action, but clogging tribunals with petty things "because it's cheap" and because you can isn't my idea of money or time well spent. But sure, if OP wants to try his/her luck "sticking it to the man" then they can go right ahead.
Why do you cut DS so much slack?
I'm not cutting Dick Smith any slack, in fact I called out that it was a dodgy system and that's one of the reasons they're going under.
What I'm questioning is the worth of any of this for the OP. What would I (and 99% of people) do? Accept the refund, grumble, post a whinge about Dick Smith here, and move on. Vote with your feet. It's simpler and easier and (as you can see from the financial situation of Dick Smith)…it works.
Dick Smith will be lucky to last a calendar year. They're in their death throes. There is zero viable way for the business to continue. They won't fix systems because they have no money.
And if OP really has the time, cash and effort to throw into a QCAT session then they can go for it. Seems like a thorough waste of time and effort to me though. Maybe I value my time more than others…
Look, I do not advocate QCAT unless the company is unreasonable. First I would write a letter to the company asking them to deliver up. But if they refuse to fulfill their legal obligations, then there is no choice.
And if enough people did this, those business practices would stop. The only reason they continue is that the companies get away with them because people let them.
I do think it is gross injustice that companies like HN line their pockets while many Australians have it tough and try to save some money.
I am sorry but my opinion is that the money is better in the pockets of the average Australian/consumer than helping the fat cats to buy another helicopter or Ferrari.
If after a DS sale gone wrong, 10,000 people filed actions DS would stop their dodgy business practices as their legal costs would spiral. Also, the media backlash would be immense. That would change things.
If people did what you suggest, vote with feet, it would be OK.
But how many people here said they will never buy anything from DS again after the "hoarding disaster" and still do just because the price is cheap?
So many people who said they would vote with their feet still whinge about cancelled orders in subsequent DS sales. So obviously that does not work with people who ONLY go by price.
BTW: QCAT costs are $23.80 which you will get from the company when they settle.
If you really valued your time that much I really do not understand what you are doing on OB. You could use your time much more productively in other ways, couldn't you?
I'm pretty sure having a live, error-free inventory system isn't compulsory in any country.
Is it really worth the time and effort to go to QCAT?
If people did what you suggest, vote with feet, it would be OK.
They have. Look at that share price: https://au.finance.yahoo.com/echarts?s=DSH.AX
Dick Smith is dead, still twitching, but soon to be buried.
But how many people here said they will never buy anything from DS again after the "hoarding disaster" and still do just because the price is cheap?
Yes, people buy cheap stuff. And all those cheap goods are sending Dick Smith broke. Investors were swindled by crazy sale stock sell-offs after writing down the value of goods and not restocking stores making cash reserves go sky high and the business "look" healthy. The covers have now come off and the share price has plummeted. Dick Smith can't attract buyers without sales and the sales are sending them broke. Their business model is screwed now. They will 100% be dead very shortly.
People voted with their feet, so Dick Smith had to destroy their own business model to try to get them back. It didn't work. As the business goes down the gurgler they continue to have stuff up after stuff up. But soon they'll be gone.
If you really valued your time that much I really do not understand what you are doing on OB.
OB brings me joy in my downtime (after hours). I don't enjoy taking up tax payer funded services with my tiny little bargain complaints from failing companies who offered me a refund. Each to their own.
Speaking of being productive with time, this conversation is productive for neither of us and it looks like you've run out of negs for the day so I'm going to leave it here. Have a good holiday season.
You too.
BTW: I prefer to upvote positive, agreeable comments. Kind of like a covert neg of the others. ;-)
this is rather silly
yes specific performance is a thing with contracts , unless the contract stats that they can change the terms if there was any error on their end and they just have to notify you, which is in the t+c of nearly any online store , and is in the dick smith ones.
and lets face it , even if it is not in their t+c, no judge would provide you with a order for specific performance on such a trivial matter.
Specific performance here simply means the judge orders the store to deliver the goods.
One would always include the claim for compensation as alternative so that the items can be bought elsewhere.
Either way, you would get your items without being out of pocket.
If the item is legitimately out of stock how do you expect them to deliver? Of course they have a legal obligation to fulfill the contract of sale, but if they can't…they can't.
So recourse is either:
a) Accept refund
b) Take them Consumer Affairs and the outcome will likely be "They can't fulfill the sale, accept a refund".
How can they give you what they don't have? This is not what QCAT is for. From the explanation OP has been inconvenienced, not wronged. If you know that Dick Smith actually DO have stock that's another issue, but in this case they're advising OP that they're out of stock and asking him to take his money back. You don't have to accept your money back, but they're equally telling you they can't give you the stock because they don't have it (and in DS case probably won't be restocking it - most of their clearance items won't be restocked).
If your reasoning was correct what would stop a store from advertising an item cheap but only have one single item for that price? They take the money from tens of thousands of people, keep it for 14 days, get the interest, then refund with a voucher to get you into their stores? And no one can do anything about that?
That is a great way to make money - if you did that consistently over a year you could make millions if you find enough people to do it.
If DS claims they are out of stock, but HN, JB, and other stores have the item available how can DS argue they cannot reorder it or procure it? Either they have to go to a different wholesaler or buy from HN.
In effect, DS made a mistake and has a dodgy ordering system. It is in their control so they are responsible for it. And yet, you think it is OK the OP who has done nothing wrong should be the one holding the baby?
I really have no idea how the stores in Australia managed to get this kind of blind obedience to their T&Cs and so much indifference about their dodgy actions.
Stores in Europe and the US would kill to only have a fraction of such obedience and indifference.
As I said above: I have been given the "out of stock" excuse at least ten times from different big stores. They lost EVERY time. Why do you think that is? It is not luck but because it is the law.
If what you and Settero are saying were true we could simply get rid of all contracts as the stores could just claim being out of stock if they realised that the price they sold out was too low and they could sell at a higher price.
"I am out of stock now, here is your refund". Three days later "To our great excitement the supplier could supply more stock, here is the item at our new price of $10 more than before."
By the way, Consumer Affairs or the ACCC have no power. They are "toothless tigers". Which is why I recommend going to QCAT (or equivalent in other states) which has power and is cheap.
I wonder how many people negging me have actually tried going to QCAT to get their items? ;-)
First off just because people are negging you doesn't mean you have to go and neg everyone that replied to you. I didn't neg you once but negging me just because you disagree is petty (there's precisely 1 neg on every comment that disagrees with you).
Secondly I'm sure most haven't been to QCAT or their equivalent. I know I wouldn't because I think it's:
a) Not worth my time. The work I'd miss would outweigh the return I'd get by 100 fold.
b) Not worth clogging up the system. QCAT and equivalents are "cheap" for the consumer, but they're funded by our taxes and are also used to give help for issues such as child protection and anti-discrimination issues. I'd prefer not to clog up the system with complaints over a retailer not giving me my $10 Playstation game.
Now, are you making assumptions or what? There are plenty of other people who do not agree with you, just as there are many who do not agree with me.
Would not go round making assumptions unless I should do the same about you, hey?
QCAT is something Queensand actually got right - straightforward, simple to file and cheap. So depending on the item you bought it is worthwhile. By the way, you could employ the same argument in relation to OB - why are you wasting your time here for deals that sometimes fall through?
Also, some people have principles. Letting stores get away with it will not change the situation.
By the way, I have worked on anti-discrimination issues there as well and I can safely tell you that court would be a lot more efficient there, both in terms and costs.
Again, I still maintain if you have no experience there don't make a judgment about it as it carries little weight.
"Also, some people have principles. Letting stores get away with it will not change the situation"
That's where I sit.
Maybe Dick Smith shouldn't take the money until it's 'in stock'
A lot of money can made from false transactions earning interest on the short term money market……..
You can ask, but pretty sure they don't have to.
Is the substitute item more expensive?