Advice Needed

[**Super_Dogs**]

I was just thinking - can the breeder even legally do that (refuse to sell them the pup, but keep the deposit)?

Isn't one of the things often mentioned as a downside to taking deposits is that, as a breeder, if you change your mind on a buyer it's too bad if you've taken a deposit from them, as you are still legally obliged to sell them a pup?

I don't think they can, which is why they are going to take the matter further.

The breeder does not believe she is refusing sale as they broke the contract of sale first. She has missed the point of WHY they broke it. They did not want a puppy with a heart murmur!!

Another thing (yes it keeps on getting worse and worse) is her terms and conditions state her undertaking is ethical and transparent breeding To ensure you receive a happy and healthy puppy. So she says she can keep their deposit as her t&c state the deposit is non refundable and refund is at breeders discretion........but what about her undertaking! I don't like the way she manages her t&c as they are a link at the bottom of the enquiry form. It does not say please read my t&c nor does she reference to these when asking for the deposit.

[rotts4ever]

I was just thinking - can the breeder even legally do that (refuse to sell them the pup, but keep the deposit)?

Isn't one of the things often mentioned as a downside to taking deposits is that, as a breeder, if you change your mind on a buyer it's too bad if you've taken a deposit from them, as you are still legally obliged to sell them a pup?

You don't have to sell them the pup as long as you give them their money back

Cheers Lee

[Tansy]

The breeder does not believe she is refusing sale as they broke the contract of sale first. She has missed the point of WHY they broke it. They did not want a puppy with a heart murmur!!

Another thing (yes it keeps on getting worse and worse) is her terms and conditions state her undertaking is ethical and transparent breeding To ensure you receive a happy and healthy puppy. So she says she can keep their deposit as her t&c state the deposit is non refundable and refund is at breeders discretion........but what about her undertaking! I don't like the way she manages her t&c as they are a link at the bottom of the enquiry form. It does not say please read my t&c nor does she reference to these when asking for the deposit.

If the puppy buyer has not actually signed the contract, or signed something that says they have read and understood the Ts & Cs, the breeder really doesn't have a leg to stand on. It's not sufficient to put Ts & Cs on the website, as there is no way to prove that that buyer has read these, understood and accepted the terms.

Just on the murmur issue, a murmur at 6 weeks is not necessarily an indicator that there is anything wrong with the puppy, this can be a so called 'innocent murmur', which really isn't a problem. Of course, it could also be something more serious. If it was one of my puppies, I would offer the buyer to pull out of the deal, or wait it out and see if the murmur disappeared. In the meantime, I would be vet checking the puppy each week, and in my experience, if it is an innocent murmur it would be gone within a couple of weeks, in which case I would then offer the puppy for sale. Mind you, I don't take deposits (just more trouble than they are worth!), so it would just be advising the buyers that they really shouldn't feel obligated to wait and see if the murmur went.

[Allerzeit]

I was just thinking - can the breeder even legally do that (refuse to sell them the pup, but keep the deposit)?

Isn't one of the things often mentioned as a downside to taking deposits is that, as a breeder, if you change your mind on a buyer it's too bad if you've taken a deposit from them, as you are still legally obliged to sell them a pup?

You don't have to sell them the pup as long as you give them their money back

Cheers Lee

Yes - although I have heard differing opinions about that as well - but, regardless, she's talking about not selling the pup and NOT giving their money back - that's what I'm questioning the legality of.

[ellz]

Different state controlling bodies also have different "internal" rules with regards to the taking of deposits.

I think I recall reading something here in Tasmania along the lines of deposits must be refundable, however they are not to be taken unless there is a guaranteed puppy for the purchaser.

[tdierikx]

So if the breeder tells the hesitant purchaser that at 12 weeks the pup is "clear", and then refuses to complete the sale nor refund the deposit, the breeder is not adhering to the terms of her contract either.

Regardless of what the breeder's terms and conditions say, she may get a rude shock when taken to Fair Trading about her practices.

T.

[Bluefairy]

I just found this:

Refunds by law: In Australia, consumers have a legal right to obtain a refund from a business for goods purchased if the goods are faulty, not fit for purpose or don't match description.

and

Business obligations to repair, replace, refund

All Australian traders, whether online or running a bricks and mortar operation, must comply with Australian trading laws. This includes laws on consumer guarantees.

Since 1 January 2011, businesses must provide consumers with guarantees for most consumer goods and services they sell.

Goods

Consumers have the right to ask for a repair, replacement or refund if the goods you sold are:

faulty

unsafe

look unacceptable, and

do not do what they are supposed to do

In each case this is according to what someone would normally expect for the type and cost of the particular goods.

Consumers also have this right if goods you sold them do not:

fit the purpose you discussed with them

match the description provided

match the sample or demonstration model provided

have the extra qualities or performance that you promised before the sale.

Services

Consumers have the right to ask for a repair, replacement or refund if the services you sold:

were not delivered completely or with adequate care and skill

did not fit the purpose or give the results that you and the consumer had agreed to

were not delivered within a reasonable time where there is no agreed date.

These rights arise from the consumer guarantees under the Australian Consumer Law that provide consumers with a right to seek remedies where there are problems with goods or services. Other laws apply for products and services you bought before 1 January 2011.

What types of businesses must offer consumer guarantees?

Consumer guarantees apply automatically to most products and services supplied by businesses in retail, service, online and hire situations.

No refunds

It is illegal for businesses to tell customers or show signs stating that they do not under any circumstances give refunds.

Must businesses automatically give a repair, replacement or refund?

No. This will depend on the consumer showing proof of purchase and whether or not there is a major problem with the product or service.

Proof of purchase can include a receipt, bank statement, a completed warranty card or a lay-by statement.

Where the problem is not major, you can offer to repair, replace or refund the product or fix the problem with the service.

For a major problem with a product, the consumer has the right to choose whether you give them a replacement or refund.

For a major problem with a service, the consumer can choose compensation for the drop in value below the price paid, or a refund.

If you choose to repair the product or fix the problem with the service, you must carry this out within a reasonable time.

From here: http://www.accc.gov.au/content/index.phtml/itemId/1023609

There's heaps of information out there on Consumer Law.

Good Luck OP.

Lynn

[Allerzeit]

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

[Guest lavendergirl]

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

This raises an interesting point. Are breeders who regularly have litters for sale registered as a business?

[toshman]

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

This raises an interesting point. Are breeders who regularly have litters for sale registered as a business?

But the OP said that the office of fair trading said they couldn't do anything because the seller wasn't a business.....???

[**Super_Dogs**]

From here: http://www.accc.gov.au/content/index.phtml/itemId/1023609

Thanks :) There Qld Office of Fair Trading has this info. Did not look here though.

They actually emailed the breeder a link to the similar info from office of fair trading referenced the page that says "no refunds are illegal". The breeder does not think their is a problem with the "goods", even though she emailed them a copy of the the vet check with states heart normal "NO", because she believes it will go away. Which is may, but no-one can be sure of this,

The problem comes to what Allerzeit, she is not a business. You would have to think that if they take this in front of a judge these rules will apply. If not, I am going to be very disheartened with our legal system!!

[**Super_Dogs**]

But the OP said that the office of fair trading said they couldn't do anything because the seller wasn't a business.....???

That is right. They can negotiate with her, But they cannot force her to provide the refund. My sister is law has tried negotiating. They even offered for her to keep $100 of the deposit for her trouble. This woman just does not see reason.

[Guest lavendergirl]

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

This raises an interesting point. Are breeders who regularly have litters for sale registered as a business?

But the OP said that the office of fair trading said they couldn't do anything because the seller wasn't a business.....???

I know...I was asking generally rather than this specific case.

[Jed]

buddy1

The problem comes to what Allerzeit, she is not a business. You would have to think that if they take this in front of a judge these rules will apply. If not, I am going to be very disheartened with our legal system!!

I mentioned earlier that it doesn't matter whether she is a business of not. Dept of Fair Trading may not be able to get her to cough up, but the magistrate's court (or whatever they call it now), will. If she wont refund, toddle along to the courthouse, fix up the papers. Doesn't need to be a business to go to the magistrates court. Easy as pie.

What she is doing IS illegal. Please don't let her get away with it. It shames all decent breeders. And shame on Fair Trading, who are supposed to be there to HELP you, but have not told you how to get some money back from this absolute grub, who obviously is the crook of the year, or knows sfa about dogs and breeding them.

People like this should be stopped from breeding dogs. No wonder people go to pet shops.

And she has probably been doing it for years because the Dept of Fair Trading was too lazy to tell people what they could do to get some redress.

I hope, after you have been to the courthouse, you will write to the CCCQ and tell them all about this person.

The reason why things like this go on is because not enough people did something about it.

Would you like to buy my car? I want $20,000 for it. It is a beautiful car. It doesn't go at the moment, but I am sure it will go in the future, after you have bought it.

Edited May 6, 2012 by Jed

[dancinbcs]

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

This raises an interesting point. Are breeders who regularly have litters for sale registered as a business?

Most breeders cannot register as a business, even if they want to because they never make any "profit", income yes, profit no. By the time they deduct all their expenses for their dogs most operate at a loss so you cannot register as a business. Only those producing very large numbers, not showing/trialling and not keeping dogs for their entire lives would be able to make enough profit to qualify as a business.

So even though the Fair Trading laws do not apply, it is still illegal to not refund a deposit on faulty goods, whether it is a business or not. Once these poor people get their money back it would be great if they came on here and named and shamed this breeder. There is no excuse for selling a puppy with a heart murmur yet the AWL have told me they do it. It really makes me mad that they think it is ok to sell deaf puppies and those with heart murmurs when reputable breeders wouldn't dream of doing it. Some may give them away with full disclosure but they are not fit to be sold.

[mumof4girls]

Do they declare their earnings as breeders, do they have an ABN number ( I'm presuming you get a receit when you purchase your pup so wouldn't that be seen as a business?

[mumof4girls]

I just saw this dancinbc, answers my above question

..

What's the definition of a business, though? Is a hobby breeder, who is not registered as a business still defined as a business under consumer law, or does it only apply to registered businesses?

This raises an interesting point. Are breeders who regularly have litters for sale registered as a business?

Most breeders cannot register as a business, even if they want to because they never make any "profit", income yes, profit no. By the time they deduct all their expenses for their dogs most operate at a loss so you cannot register as a business. Only those producing very large numbers, not showing/trialling and not keeping dogs for their entire lives would be able to make enough profit to qualify as a business.

So even though the Fair Trading laws do not apply, it is still illegal to not refund a deposit on faulty goods, whether it is a business or not. Once these poor people get their money back it would be great if they came on here and named and shamed this breeder. There is no excuse for selling a puppy with a heart murmur yet the AWL have told me they do it. It really makes me mad that they think it is ok to sell deaf puppies and those with heart murmurs when reputable breeders wouldn't dream of doing it. Some may give them away with full disclosure but they are not fit to be sold.

[Wags]

A family member put a large deposit (33%) for a puppy. At the puppy's 6 week health check last week the vet detected a 2/6 heart murmur. What makes it worse is the breeder wants final payment this week - 1 week before they pick up the puppy. They spoke to the breeder about waiting until the puppy has the all clear before they pay and take puppy but she did not agree to this.

They have therefore decided that they do not want to take the puppy and have requested a refund. The breeder has refused. Her terms and conditions hidden on The website in a place you would not look state the deposit is non-refundable or refundable at their discretion.

I cannot understand how she can refuse to refund when the puppy has a heart murmur. This is not what they put the deposit on!

Any advice of next steps they could take?

If you are going to ask for assistance, it's a good idea to give the actual facts. I know this breeder and have been privy to interaction between the two of them.

Firstly, the puppy murmur was diagnosed as 'probably innocent' - details that have been left out.

Secondly, The breeder asked the family to contact her if they had any queries or qualms when she provided them with the health certificate.

When the breeder was contacted, three days later, they made if very clear that they wished to take delivery of the puppy and only wanted reassurance that the breeder would be there if the puppy's murmur had not completely disappeared. The breeder then discussed with them what her actions would be if in the remote chance this did occur.

They expressed to the breeder that they were completely happy with the discussion. The casller also told her she wished she had contacted her in the first place instead of worrying about it all weekend. She was asked by the breeder to contact her again if she had a dose of the doubts or needed any clarification. This was a very calm, chatty, receptive conversation, as witnessed by a third party, it so happens. At no time did the breeder insist or demand that you take the puppy on time, nor did she demand final payment. At no time did the family raise any form of delay in taking the puppy, in fact she insisted that she wanted to take delivery of the puppy - after the breeder has advised her that if she had any qualms at all about taking the puppy, she would rather not provide it to her.

Two days after this, the breeder was advised by her vet that the family's vet had contacted her. The family did not afford the breeder any form of common decency of contacting her, not even to advise that she still had some doubts and was intending to have her vet contact the breeder's. The breeder readily gave her vet permission to contact the family's.

That evening, the breeder contacted the family again, advising that she had been advised in regard to the vet contact and asking whether they had heard back from their vet, whether they still had any doubts or wished to discuss anything with her. She insisted no, that the vet contact was only as a result of a casual conversation with her vet while having your other dog innoculated. She said you had not yet heard back and had forgotten all about it. She insisted that she was fine with everything and all was well.

The next day, she sent an email severing the purchase agreement and demanded her refund back.

The breeder - again in a state of confusion about her duplicity, contacted her vet and ascertained that she had come out of surgery to phone the family's vet as as their vet was busy, she left a message with the receptionist advising what she had noted on the health certificate and also adding that she was 90% sure that the puppy murmur would disappear within the 12 weeks.

It was at this point that the breeder replyed to the family's email exercising her right to retain the deposit by way of compensation. The terms and conditions are CLEARLY indicated on the breeder's website.

In an effort to resolve the matter, the breeder has also made extremely reasonable efforts to resolve the matter of the refund while the family barraged her with harrassing emails, changing tack with nearly every email and threatening her in the process.

Frankly, I believe this breeder is well within her rights to retain the deposit when the facts are known. She has been communicative, understanding, receptive, resolving and honest.

Edited May 6, 2012 by Wags

[corrie]

If that is the case wags then I would find the duplicity frustrating and annoying and would make me think twice about wanting my pup to go to that home but I still don't think it is right or that the breeder has the right to keep the deposit should the pup be given a clean bill of health.

[Pailin]

A family member put a large deposit (33%) for a puppy. At the puppy's 6 week health check last week the vet detected a 2/6 heart murmur. What makes it worse is the breeder wants final payment this week - 1 week before they pick up the puppy. They spoke to the breeder about waiting until the puppy has the all clear before they pay and take puppy but she did not agree to this.

They have therefore decided that they do not want to take the puppy and have requested a refund. The breeder has refused. Her terms and conditions hidden on The website in a place you would not look state the deposit is non-refundable or refundable at their discretion.

I cannot understand how she can refuse to refund when the puppy has a heart murmur. This is not what they put the deposit on!

Any advice of next steps they could take?

If you are going to ask for assistance, it's a good idea to give the actual facts. I know this breeder and have been privy to interaction between the two of you.

Firstly, the puppy murmur was diagnosed as 'probably innocent' - details you left out.

Secondly, The breeder asked you to contact her if you had any queries or qualms when she provided you with the health certificate.

When you contacted the breeder, three days later, you made if very clear that you wished to take delivery of the puppy and only wanted reassurance that the breeder would be there if the puppy's murmur had not completely disappeared.

You expressed to the breeder that you were completely happy with the discussion. You also told her you wish you had contacted her in the first place instead of worrying about it all weekend. You were asked by the breeder to contact her again if you had a dose of the doubts or needed any clarification. This was a very calm, chatty, receptive conversation, as witnessed by a third party, it so happens. At no time did the breeder insist or demand that you take the puppy on time, nor did she demand final payment. At no time did you raise any form of delay in taking the puppy, in fact you insisted that you wanted to take delivery of the puppy.

Two days after this, the breeder was advised by her vet that your vet had contacted her. You did not afford the breeder any form of common decency of contacting her, not even to advise that you still had some doubts and were intending to have your vet contact mine. The breeder readily gave her vet permission to contact yours.

That evening, the breeder contacted you again, advising that she had been advised in regard to the vet contact and asking whether you had heard back from your vet, whether you still had any doubts or wished to discuss anything with her. You insisted no, that the vet contact was only as a result of a casual conversation with your vet while having your other dog innoculated. You said you had not yet heard back and had forgotten all about it. You insisted that you were fine with everything and all was well.

The next day, you sent an email severing the purchase agreement and demanded your refund back.

The breeder - again in a state of confusion about your duplicity, contacted her vet and ascertained that she had come out of surgery to phone your vet as as your vet was busy, she left a message with the receptionist advising what she had noted on the health certificate and also adding that she was 90% sure that the puppy murmur would disappear within the 12 weeks.

It was at this point that the breeder replyed to your email exercising her right to retain the deposit by way of compensation. The terms and conditions are CLEARLY indicated on the breeder's website.

In an effort to resolve the matter, the breeder has also made extremely reasonable efforts to resolve the matter of the refund while you barraged her with harrassing emails, changing tack with nearly every email and threatening her in the process.

Frankly, I believe this breeder is well within her rights to retain the deposit when the facts are known. She has been communicative, understanding, receptive, resolving and honest.

If that is the case then the breeder needs to understand that a potential health issue is quite a large thing for a prospective owner to wrap their heads around and what she sees as the buyers being "duplicitous" could merely be them trying to be polite and not cause a scene to her face whilst privately freaking out at the situation. After processing it they have concluded that they do not wish to take on this pup and the breeder, irregardless of the purchasers actions, should be ethically bound to refund.

I do not believe that this breeder has any rights to retain the deposit when the whole issue is surrounding the possible ill health of a pup. Whether the potential purchasers are acting badly or not, it does not give the breeder the right to behave poorly in return. The breeder should , in my opinion, take the higher road, refund the money and wash her/his hands of the situation that is clearly angst driven on both sides and have done with it.