Cancelling a "cabana" contract

Discussion in 'Legal Issues' started by kirags, 12th Nov, 2017.

Join Australia's most dynamic and respected property investment community
Tags:
  1. kirags

    kirags Active Member

    Joined:
    12th Nov, 2017
    Posts:
    30
    Location:
    sydney
    On Friday we signed up a contract to have one of those backyard studios (council exempt) put on our backyard. We paid a small deposit and agreed to have half of the price taken out of our credit card this coming week.
    However we have since spoken to our council on Saturday and confirm that we would need a DA for this kind of "cabana" because we are on a exclusion zone and the "exemption" rule does not apply to our property.
    Now we are not sure what our rights are and if we can we get out of this contract.
    Can anyone here provide some advice?
    The vendor paper that we signed says cancellations are not allowed. However we just signed this on Friday evening and the order is not going to be formally processed until Monday morning (at which point the credit card will be charged).
    Amy help will be greatly appreciated.

    Cheers
     
  2. Joynz

    Joynz Well-Known Member

    Joined:
    5th Apr, 2016
    Posts:
    5,751
    Location:
    Melbourne
    Which Council is open for planning discussions on a Saturday?
     
    neK likes this.
  3. kirags

    kirags Active Member

    Joined:
    12th Nov, 2017
    Posts:
    30
    Location:
    sydney
     
  4. Joynz

    Joynz Well-Known Member

    Joined:
    5th Apr, 2016
    Posts:
    5,751
    Location:
    Melbourne
    Not common in Melbourne.
     
  5. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,672
    Location:
    Australia wide
    Is there are cooling off period mentioned in contract?
     
  6. TMNT

    TMNT Well-Known Member

    Joined:
    23rd Jul, 2015
    Posts:
    5,572
    Location:
    Melbourne
    This thread is making me hungry for a kabana
     
    JacM likes this.
  7. JacM

    JacM VIC Buyer's Agent - Melbourne, Geelong, Ballarat Business Member

    Joined:
    12th Jul, 2015
    Posts:
    2,194
    Location:
    Melbourne, Australia
    Worst case scenario maybe you could get a refund via your credit card company for the products and services you have paid for that are not delivered. (I got a refund on a flight once ... a flight that was a non-refundable flight, but the airline went into administration before the date of the flight and the credit card company refunded the money straight away).
     
  8. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    5,301
    Location:
    In the Tweed
    Ring bank and report card "lost"
    They should cancel it prior to the withdrawl...
    A pain being without a card for a few days
     
  9. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    13,933
    Location:
    Brisbane
    Cancelling the card doesn't help with the fact you've signed a contract though...

    Will you go ahead with this if you can get an approval?
     
  10. neK

    neK Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    2,842
    Location:
    Sydney
    I'm more interested in this one.
    There's more to the story ;)
     
  11. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    6,380
    Location:
    Qld
    Who told you that the cabana was exempt from council approval?
    If it was the cabana salesman, you may have a case to cancel the contract on the grounds of misleading conduct.
    Contact the Department of Fair Trading in your state.
    Marg
     
  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,672
    Location:
    Australia wide
    Sale of goods act
     
  13. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    5,301
    Location:
    In the Tweed
    Quite true
    But you could email notice of cancellation and only lose the small deposit ;)
    Rather than spending months arguing the point and "trying" to get the 50% payment back :eek:

    I'd also be asking for a copy of their council permit exemption, then provide them with your councils reponce, then request a FULL REFUND:D
     
  14. sanj

    sanj Well-Known Member Premium Member

    Joined:
    18th Jun, 2015
    Posts:
    3,461
    Location:
    Perth
    Assuming you're in NSW, call them up and follow up in writing that you have just become aware of the below and so you withdraw authorisation for any further payment to be made prior to work starting etc. Then, step 2 will be your deposit but at least the 50% deposit issue can be handled.

    Note - below was written more as an advisory piece to tradies and service providers but the fact remains there should be a clause addressing cancellation and most importantly they aren't allowed to accept any more than 10% as a deposit

    No need for any mucking around or silliness re cancelling cards etc, which ultimately doesn't really solve your problem, just potentially kicks the can down the road

     
  15. sanj

    sanj Well-Known Member Premium Member

    Joined:
    18th Jun, 2015
    Posts:
    3,461
    Location:
    Perth
    True but you have to show why the charge was unwarranted in the first place in order for the bank to dispute the transaction/do a charge back
     
  16. sanj

    sanj Well-Known Member Premium Member

    Joined:
    18th Jun, 2015
    Posts:
    3,461
    Location:
    Perth
    A lesson to all btw, number of red flags here.

    1) balance of 50% deposit being charged immediately after initial deposit despite nothing being done, why 2 payments? What triggered the 2nd due date of funds?
    2) contract saying no cancellations - as per my above post that is actually illegal on their part and not enforceable
    3) signing a no cancellation contract and agreeing to pay half upfront without doing DD re council etc or at very least making the contract subject to relevant approvals being granted
     
  17. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    23,319
    Location:
    Sydney
    Commonwealth Law may also be available - Competition and Consumer Act. Many provisions govern representations and supply of goods fit for purpose, misleading and deceptive, Often these are mirrored in state law and that may be relevant to building contracts etc. ...If the contract provisions are misleading about right to consumer remedies the penalties can be massive. Eg refusing refunds based on mistake, error of even incompatability with site may be prohibited. Also was the contract signed at your home if it was signed in the evening ? Door to door sales have specific cooling off provisions that cant be excluded.

    See a solicitor.
     
  18. Marg4000

    Marg4000 Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    6,380
    Location:
    Qld
    I think this is to get around the law regarding a 10% deposit. You may find the first payment is listed as the deposit, and a different description to the other payment.

    This happened to us years ago when we renovated our kitchen.

    We paid the 10% deposit initially, but agreed to pay a further amount a week? couple of weeks? later to cover the cost of materials before the kitchen was custom built in the factory.

    All fully explained to us.
    Marg
     
  19. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

    Joined:
    18th Jun, 2015
    Posts:
    23,319
    Location:
    Sydney
    Discuss with Fair Trading NSW if its in NSW
    Home_building_contracts

    They may be somewhat supportive for remediation of illegal contracts and arranging refund. They can deal with licenses too.

    They will advise if the contract is non-compliant
     
  20. D.T.

    D.T. Specialist Property Manager Business Member

    Joined:
    3rd Jun, 2015
    Posts:
    9,189
    Location:
    Adelaide and Gold Coast
    Devils Avocado for a second, is this actually the tradie's fault? He's provided an offer of service, you've signed a contract and paid a consideration.

    Why should he be penalised for you reneging the contract?