A cell phone sold on Facebook marketplace wound up at the centre of a BC Civil Resolution Tribunal case after it was discovered to be fake just 10 minutes after the transaction.
According to the applicant, Derek Garner, the Samsung Galaxy S23 Ultra that he bought from the respondent, Kulwinder Khangura, was an inferior counterfeit.
However, Khangura claimed that the smartphone was sold on a “no refunds” basis. The tribunal had to decide whether the respondent had to refund the sale price of $500.
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” The following facts are undisputed, save where noted,” read the decision by Tribunal Member David Jiang. “Screenshots show that the respondent advertised a “SAMSUNG S23 Ultra” for sale on Facebook. The parties exchanged text messages to arrange a time to meet up.”
Garner and Khangura met on Jan. 7, 2024, to do the exchange. The applicant tested the phone by inserting a SIM card, making a phone call and taking some photos. The smartphone also came in a box labelled “Galaxy S23 Ultra” and had a serial number.
However, just a few minutes after completing the purchase, the applicant took a closer look at the device and realized it was counterfeit. Garner texted Khangura that they wanted a refund, but he responded, “Unfortunately there will be no returns accepted. Sorry for the inconvenience.”
Garner and a witness to the sale identified as NLK told the tribunal that the phone was advertised as genuine and that Khangura’s son had bought it from Costco. The tribunal also accepted the phone as being counterfeit, “as the respondent does not deny this in any evidence or submissions.”
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“I find it clear from the text messages and NLK’s evidence that the parties contracted for the sale of a Galaxy S23 Ultra phone,” said the tribunal member. “I find it was an implied term that the respondent was selling the genuine article and not a counterfeit.
“I note that the respondent also explicitly represented this to the applicant, but I find it unnecessary to discuss the law of negligent or fraudulent misrepresentation to decide this dispute. My decision would remain the same.”
Jiang explained that the private sale was subject to the Sale of Goods Act which requires that goods sold be durable for a reasonable amount of time, depending on how the goods would be used and the sale’s circumstances.
“I acknowledge that the respondent verbally advised, ‘no refunds’ during the sale,” reads the decision. “However, I find this language was insufficient to show that the parties agreed the applicant would bear the risk that the phone was counterfeit. For example, the parties did not explicitly agree that the applicant was responsible for verifying the phone was genuine.
“It is undisputed that the phone is counterfeit. So, I find the respondent breached the contract.”
In total, Khangura was ordered to refund Garner $500 for the smartphone as well as $29.27 in pre-judgment interest.