Is this unethical ?

[Steveqld]

I don't know when the purchase occurred but if since early 2011 then it is covered by the Australian Consumer Law and the Competition and Consumer Act 2010 applies.  A few of the sections are relevant.

In volume 3:

18  Misleading or deceptive conduct

             (1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

But it would only be misleading or deceptive if they specifically stated to you "This coin has not been cleaned".  If they hold it out at uncirculated then it could still be uncirculated even if cleaned.  They just haven't told you everything but in all likelihood they're probably not required to tell you unless you ask.

At S 20L  20  Unconscionable conduct within the meaning of the unwritten law

             (1)  A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

I don't think the examples fit.

More on Misleading statement at S 29:

29  False or misleading representations about goods or services

             (1)  A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

                     (a)  make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or

But again as before it is questionable whether their statement that the coin was uncirculated is misleading (just incomplete).  I think a more successful argument is under S 54

54  Guarantee as to acceptable quality

             (1)  If:

                     (a)  a person supplies, in trade or commerce, goods to a consumer; and

                     (b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

             (2)  Goods are of acceptable quality if they are as:

                     (a)  fit for all the purposes for which goods of that kind are commonly supplied; and

                     (b)  acceptable in appearance and finish; and

                     (c)  free from defects; and

                     (d)  safe; and

                     (e)  durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

............................

             (7)  Goods do not fail to be of acceptable quality if:

                     (a)  the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

                     (b)  the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Overall you would have a reasonable argument about the statutory guarantee on the acceptable quality grounds but you would have to ask if it is worth it.  It may be sufficient to bring this statutory protection to their attention but probably not worth taking it to a tribunal.

I'd also throw in the disclaimer that I'm not a lawyer and haven't done the research to see whether coins fit the defn of "goods" or if there's anything else that would exclude the purchase.  If purchased prior to 2011 then the Trade Practices Act would have applied which MAY have had a similar provision.

Of course this also presumes that PCGS is correct.

The Act is here: http://www.comlaw.gov.au/Details/C2011C00003/Html/Volume_3#param66

Steve

[Bigfellani5]

As a dealer I back what I sell. As I do know pcgs do get it wrong i can not be expected to refund based on their opinion. I refund if a customer is unhappy with what I send them.... No questions asked....but anyone that buys a pcgs graded coin should do so not because of what pcgs say it is but because of what the buyer believes it is graded as. Don't be a fool and buy anything based on what someone else tells you something is graded at. Be smart and form your own opinion.

[markn]

Valid points Markn.
I sold a beautiful 1938 Crown a few years ago on e-bay.
Although I am not a professional dealer, if the buyer approached me now after having an unsuccessful submission to PCGS, am I still responsible for the opinions of assigned grade at the time of the sale, an exchange or refund?

At a certain point, as commented several times in this thread, buyer accountability has to be assumed as well or we'd be forever exchanging all sorts of items, regardless of the sale condition at the time or length of time post sale.

There's no implied warranty on private sales.  So you're not responsible for his coin not grading at PCGS.  Returns for commercial sales include the "fit for purpose within a reasonable time frame".  What this means for coins I have no idea.  Given that they are second hand I suspect there's no warranty available at all.

[Steveqld]

There's no implied warranty on private sales.  So you're not responsible for his coin not grading at PCGS.  Returns for commercial sales include the "fit for purpose within a reasonable time frame".  What this means for coins I have no idea.  Given that they are second hand I suspect there's no warranty available at all.

Markn,  "Fitness for purpose" is only one of the criteria for "acceptable quality".  They must also be "(b) acceptable in appearance and finish; and (c) free from defects; and" both arguable points.  This is a statutory protection not an implied warranty.  I agree the longer it takes to identify the quality issue then the weaker the argument.  I think I'd be putting it down to experience.

[markn]

Markn,  "Fitness for purpose" is only one of the criteria for "acceptable quality".  They must also be "(b) acceptable in appearance and finish; and (c) free from defects; and" both arguable points.  This is a statutory protection not an implied warranty.  I agree the longer it takes to identify the quality issue then the weaker the argument.  I think I'd be putting it down to experience.

Given that most coins are second hand I am not sure any of this applies unless you buy them from a shop.  I am fairly sure none of it applies if you're buying from eBay, public auction, or a garage sale.  Interesting to think about though,  thanks for posting up all the information

[acrellin]

My name is Andrew Crellin, my business is Sterling and Currency and I'm the dealer that echidna has referred to here.

Rather than type up a full response, I've pasted below my (two) responses below. I welcome your comments and feedback:
-------------
First Response:
-------------

Thanks for your email.

I'm sorry to hear of the adverse finding by PCGS on those coins, that is never a welcome outcome.

I quite understand you asking the question re the 1924 florin, I have to say I don't recall the exact details of that specific transaction either I must say - our current POS system was installed in mid 2010, any activity earlier than that date has been archived.

My recollection is that as the PCGS system began to take prescience over the raw grading system, I have been appropriately circumspect as to how raw coins sold by us have been represented.

I've had a number of enquiries from collectors that have wanted to know if the grades of the coins on our website are PCGS grades, which they are not.

I have also had enquiries from clients that want to know if we guarantee that the grades we attribute to raw coins will match those that PCGS will attribute, which we cannot.

Where there is any question about the potential of any raw coin to "grade", I'll state my opinion as to the originality of the surfaces, and the estimated grade, however can't and won't guarantee that a coin will make any particular grade with PCGS.

I have, on occasion, advised clients that a particular coin is cleaned or if it may not grade for any other reason. Certain clients won't proceed with a particular transaction due to the answer they get, others will take a punt based on their opinion of a coin.

In short, as I don't recall guaranteeing that this particular coin had original surfaces, and that it would definitely "grade" with PCGS, I'm not in a position to agree to your request.

I can offer you the 1924 florin in PCGS MS63 that we currently have at cost - it is a consigned coin, so the cost would be $5250 - 15%, about $4,400. I may be able to get this down if you'd like me to look into it further.

Ironically, I commented on a post online re this very subject in early May:

http://www.coinworld.com/Articles/ViewArticle/accountability-matters

I appreciate the amount of business we've done, and hope you understand why I've taken this position re this coin.

-------------
Second Response:
-------------

I understand your disappointment about the PCGS result, however I don't see how I can be held accountable for that comment being measured against a grading / authentication / assessment standard that I was not aware of at the time the coin was sold.

If you had said to me - Andrew, I wish to purchase this coin only if you guarantee PCGS will agree that it has original surfaces, and only if the PCGS grade matches the grade you have attributed - if I had agreed to that request, then I would refund you outright without hesitation.

I know that this is not the case however, because I have had several such conversations with clients that solely collect PCGS-graded coins regarding items we have had on offer, and I have not given any such guarantee on any of those occasions, whatever the level of confidence I may or may not have in the item passing muster with PCGS.

Retrospective grading of items purchased prior to the PCGS standard became the de facto standard is an understandable process.

Presuming that a guarantee exists on a transaction where the other party is not explicitly aware that such a guarantee is being demanded, I don't believe is fair.

I empathise with your situation, and am prepared to offer the PCGS MS63 1924 florin that we have at present at cost as agreed.

[Steveqld]

Sale by auction is specifically excluded as are private sales and I'd agree Ebay, garage sales and public auctions are out.  It must be a transaction in the course of trade or business and I'd include sales through advertisements in papers, magazines and internet websites, not just a physical shopfront.  I guess it would include a market stall.  Without looking further I think second hand goods are covered.  I did read a decision a couple of months ago concerning a second hand engine purchased by someone in Brisbane from a business in the NT.

Shopfronts are offered some protection as the purchaser can usually inspect the item before purchase:

(7)  Goods do not fail to be of acceptable quality if:

                     (a)  the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

                     (b)  the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Hence this gives effect to the rule "Let the buyer beware".

[Fulvio]

Would you prefer PCGS or this raw coin dealer? You choose.

If PCGS were a dealer, there'd be no contest. But they're not. So unless the dealer you're buying from has already had it slabbed, you're going to be dealing with it down the line. A long way down the line, from all reports.

And that goes back to the original question about ethics. Does a dealer get to wash his hands, months or years later, or as soon as you walk out the door, or when exactly?

Does someone who cares about the whole slabbing thing need to draw up a binding contract and get the dealer to sign it before buying a coin? Do we even want to think about opening THAT can of worms?

[robbiegal]

Thanks Andrew

Your response has addressed many of the important questions that are being asked around the sellers responsibility and also that of the buyers.

There is always two sides to a story and I am sure that you two will eventually come to some sort of agreement on the matter at hand.

[echidna]

My name is Andrew Crellin, my business is Sterling and Currency and I'm the dealer that echidna has referred to here.

Rather than type up a full response, I've pasted below my (two) responses below. I welcome your comments and feedback:
-------------
First Response:
-------------

Thanks for your email.

I'm sorry to hear of the adverse finding by PCGS on those coins, that is never a welcome outcome.

I quite understand you asking the question re the 1924 florin, I have to say I don't recall the exact details of that specific transaction either I must say - our current POS system was installed in mid 2010, any activity earlier than that date has been archived.

My recollection is that as the PCGS system began to take prescience over the raw grading system, I have been appropriately circumspect as to how raw coins sold by us have been represented.

I've had a number of enquiries from collectors that have wanted to know if the grades of the coins on our website are PCGS grades, which they are not.

I have also had enquiries from clients that want to know if we guarantee that the grades we attribute to raw coins will match those that PCGS will attribute, which we cannot.

Where there is any question about the potential of any raw coin to "grade", I'll state my opinion as to the originality of the surfaces, and the estimated grade, however can't and won't guarantee that a coin will make any particular grade with PCGS.

I have, on occasion, advised clients that a particular coin is cleaned or if it may not grade for any other reason. Certain clients won't proceed with a particular transaction due to the answer they get, others will take a punt based on their opinion of a coin.

In short, as I don't recall guaranteeing that this particular coin had original surfaces, and that it would definitely "grade" with PCGS, I'm not in a position to agree to your request.

I can offer you the 1924 florin in PCGS MS63 that we currently have at cost - it is a consigned coin, so the cost would be $5250 - 15%, about $4,400. I may be able to get this down if you'd like me to look into it further.

Ironically, I commented on a post online re this very subject in early May:

http://www.coinworld.com/Articles/ViewArticle/accountability-matters

I appreciate the amount of business we've done, and hope you understand why I've taken this position re this coin.

-------------
Second Response:
-------------

I understand your disappointment about the PCGS result, however I don't see how I can be held accountable for that comment being measured against a grading / authentication / assessment standard that I was not aware of at the time the coin was sold.

If you had said to me - Andrew, I wish to purchase this coin only if you guarantee PCGS will agree that it has original surfaces, and only if the PCGS grade matches the grade you have attributed - if I had agreed to that request, then I would refund you outright without hesitation.

I know that this is not the case however, because I have had several such conversations with clients that solely collect PCGS-graded coins regarding items we have had on offer, and I have not given any such guarantee on any of those occasions, whatever the level of confidence I may or may not have in the item passing muster with PCGS.

Retrospective grading of items purchased prior to the PCGS standard became the de facto standard is an understandable process.

Presuming that a guarantee exists on a transaction where the other party is not explicitly aware that such a guarantee is being demanded, I don't believe is fair.

I empathise with your situation, and am prepared to offer the PCGS MS63 1924 florin that we have at present at cost as agreed.

Andrew
The ANDA code states:
I will immediately refund on any item sold by me where the description was either inaccurate or misleading, within a reasonable time frame.
It has been clearly demonstrated that the description was inaccurate.
The stated description in this case was Gem with satin surfaces.
I realize that "reasonable timeframe" is open to interpretation.
However would you comment rest of the ANDA statement please.

[acrellin]

Setting aside the fact that the transaction took place in 2007, I personally do not agree that the description of the coin was either inaccurate or misleading.

The proposition you have made is that the above description somehow implied that the coin would meet the PCGS standard.

If you wish to lodge a complaint under ANDA's Ethics & Good Conduct Protocol about this situation, you are of course free to do so.

I assure you that I'll abide by any decisions made, and that the process is completely transparent and impartial.

You can find out more information about this process via the ANDA website.

My name is Andrew Crellin, my business is Sterling and Currency and I'm the dealer that echidna has referred to here.

Rather than type up a full response, I've pasted below my (two) responses below. I welcome your comments and feedback:
-------------
First Response:
-------------

Thanks for your email.

I'm sorry to hear of the adverse finding by PCGS on those coins, that is never a welcome outcome.

I quite understand you asking the question re the 1924 florin, I have to say I don't recall the exact details of that specific transaction either I must say - our current POS system was installed in mid 2010, any activity earlier than that date has been archived.

My recollection is that as the PCGS system began to take prescience over the raw grading system, I have been appropriately circumspect as to how raw coins sold by us have been represented.

I've had a number of enquiries from collectors that have wanted to know if the grades of the coins on our website are PCGS grades, which they are not.

I have also had enquiries from clients that want to know if we guarantee that the grades we attribute to raw coins will match those that PCGS will attribute, which we cannot.

Where there is any question about the potential of any raw coin to "grade", I'll state my opinion as to the originality of the surfaces, and the estimated grade, however can't and won't guarantee that a coin will make any particular grade with PCGS.

I have, on occasion, advised clients that a particular coin is cleaned or if it may not grade for any other reason. Certain clients won't proceed with a particular transaction due to the answer they get, others will take a punt based on their opinion of a coin.

In short, as I don't recall guaranteeing that this particular coin had original surfaces, and that it would definitely "grade" with PCGS, I'm not in a position to agree to your request.

I can offer you the 1924 florin in PCGS MS63 that we currently have at cost - it is a consigned coin, so the cost would be $5250 - 15%, about $4,400. I may be able to get this down if you'd like me to look into it further.

Ironically, I commented on a post online re this very subject in early May:

http://www.coinworld.com/Articles/ViewArticle/accountability-matters

I appreciate the amount of business we've done, and hope you understand why I've taken this position re this coin.

-------------
Second Response:
-------------

I understand your disappointment about the PCGS result, however I don't see how I can be held accountable for that comment being measured against a grading / authentication / assessment standard that I was not aware of at the time the coin was sold.

If you had said to me - Andrew, I wish to purchase this coin only if you guarantee PCGS will agree that it has original surfaces, and only if the PCGS grade matches the grade you have attributed - if I had agreed to that request, then I would refund you outright without hesitation.

I know that this is not the case however, because I have had several such conversations with clients that solely collect PCGS-graded coins regarding items we have had on offer, and I have not given any such guarantee on any of those occasions, whatever the level of confidence I may or may not have in the item passing muster with PCGS.

Retrospective grading of items purchased prior to the PCGS standard became the de facto standard is an understandable process.

Presuming that a guarantee exists on a transaction where the other party is not explicitly aware that such a guarantee is being demanded, I don't believe is fair.

I empathise with your situation, and am prepared to offer the PCGS MS63 1924 florin that we have at present at cost as agreed.

Andrew
The ANDA code states:
I will immediately refund on any item sold by me where the description was either inaccurate or misleading, within a reasonable time frame.
It has been clearly demonstrated that the description was inaccurate.
The stated description in this case was Gem with satin surfaces.
I realize that "reasonable timeframe" is open to interpretation.
However would you comment rest of the ANDA statement please.

[markn]

I'd just like to commend Andrew for full disclosure here.  Class act in my books.

[markn]

(7)  Goods do not fail to be of acceptable quality if:

                     (a)  the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

                     (b)  the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Hence this gives effect to the rule "Let the buyer beware".

Surely then, if you've looked at a coin (presumably second-hand) in a shop, decided it is of acceptable quality and bought then the vendor isn't required to refund on the coin if it's determined to be cleaned (by some party) at a later point.

I guess arguments could be made that if a coin is cleaned or treated in some way that in not detectable with a loupe in a store and required some higher level of detection (microscope or 'sniffer') then the coin could still be of unacceptable quality.  Then a return may be warranted.

[Steveqld]

(7)  Goods do not fail to be of acceptable quality if:

                     (a)  the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

                     (b)  the examination ought reasonably to have revealed that the goods were not of acceptable quality.

Hence this gives effect to the rule "Let the buyer beware".

Surely then, if you've looked at a coin (presumably second-hand) in a shop, decided it is of acceptable quality and bought then the vendor isn't required to refund on the coin if it's determined to be cleaned (by some party) at a later point.

I guess arguments could be made that if a coin is cleaned or treated in some way that in not detectable with a loupe in a store and required some higher level of detection (microscope or 'sniffer') then the coin could still be of unacceptable quality.  Then a return may be warranted.

That's my understanding.  The buyer knows exactly what you're getting and what you're paying for it.  I think the purpose of the Act is just to ensure the parties conduct the transaction openly and on an equal footing.  To elaborate on my comments re Ebay purchases earlier.  I think an ebay auction would be excluded from the Act.  I suspect if a dealer has an Ebay Shop and the purchase occurs through that then it would be covered but I have no idea whether a "Buy it now" purchase would be covered as I suspect it is not as an auction.

[robbiegal]

"I will immediately refund on any item sold by me where the description was either inaccurate or misleading, within a reasonable time frame."

Surely, if a transaction had taken place is 2007 (i.e. up to six years ago) then the seller or auctioneer would no longer have an exchange or refund liability. Surely that is reasonable, regardless to any third party grading's?  
After a length of time in all auctions, bidders have paid, vendors returns are settled and records go into the archive.

Post sale responsibility for most goods is usually and often, at the most, about a 30 day time frame?

This is making me very nervous as hell is goanna freeze over before I refund on my sales from 6 years ago. Thank-fully I am not an ANDA dealer but I still sell with integrity and have refunded fully including return post for a buyer who got the coin 'regraded 'by a coin dealer on delivery and subsequently was not happy with my grade. Fortunately with e-bay the block bidder facility works very well!

My hubby once refunded coin purchases that a collector had made from him, over nine months earlier and multiple purchases over several months. The hubby refunded but I felt that it was unreasonable after 9 months and in the following financial year for a customer to say 'oh I already had these in my collection and then expect a full return. I refuse to deal with that person as well, and blocked him on e-bay.
Thanks goodness :@

I just went to the ANDA medication process PDF
http://www.anda.com.au/about_mediation.asp

"Time Frame for Validity of Complaints 3.1 All complaints must be filed in writing and on the prescribed form within 90 days of the occurrence of the event the complaint relates to, or within 90 days of the Complainant becoming aware of the actions giving rise to the complaint. 3.2 In no event shall a complaint be heard relating to an event that has occurred more than two (2) years prior to the complaint being filed."