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Your goods are covered if they were:
sold by a person or business in trade or commerce - this means in the course of their business or professional activity, including non-profit activity; and,
bought by a consumer.
You are a consumer if you buy, lease or hire:
any type of goods costing up to $40,000, or any other amount set by the ACL in future - for example a photocopier or cash register;
goods costing more than $40,000, which are normally used for personal, domestic or household purposes - for example a car or landscaping design; or,
a vehicle or trailer used mainly to transport goods, the cost of which is irrelevant.
Goods are covered even if they are second-hand.
Some consumer guarantees apply regardless of whether the goods are sold in trade or commerce - these are the guarantees that you are getting goods:
with a clear title, unless told otherwise before the sale;
with a right to undisturbed possession - nobody has a legal right to take the goods away or prevent you from using them; and,
that do not carry any undisclosed securities - the goods do not have any hidden securities or charges.
You will not be covered by consumer guarantees for goods:
bought before 1 January 2011 - These are covered by laws that were in force before 1 January 2011;
bought from one-off sales by private sellers such as garage sales or fetes;
bought at auctions where the auctioneer acts as an agent for an owner;
costing more than $40,000 that a person would normally use for business purposes such as machinery or farming equipment;
you buy to on-sell or re-supply; or,
you want to use as part of a business to manufacture or produce something else or repair or otherwise use on other goods or fixtures.
Either the supplier or manufacturer, depending on what the problem is. The supplier is the person or business who sold, leased or hired the goods to you. The manufacturer is the person or business who:
made the goods;
put the goods together;
has their name on the goods; or,
imported the goods, if the maker does not have an office in Australia.
Both the supplier and the manufacturer guarantee that goods:
are of acceptable quality;
are safe, durable and free from defects;
are acceptable in appearance and finish;
do the job they are usually used for; and ,
match the description.
Suppliers and manufacturers also guarantee that any express warranties will be honoured.
A supplier also guarantees that you are buying goods:
fit for any disclosed purpose - the goods will do the job you were told they would;
that match the sample or demonstration model shown to you;
with a clear title, unless they told you otherwise before the sale - this means they have the right to sell the goods, unless they told you before the sale that they had 'limited title';
a right to undisturbed posession - they promise nobody has a legal right to take the goods away or prevent you from using the goods; and,
that they do not have any undisclosed securities - the goods do not have any hidden securities or charges.
A manufacturer guarantees repairs and spare parts will be available for a reasonable period of time after you buy the goods.
When goods do not meet these guarantees, the supplier or manufacturer must attempt to put the situation right by offering a 'remedy'. Common remedies are repairs, replacements and refunds.
A supplier does not have to put a situation right, and a manufacturer does not have to provide damages, when they did not meet consumer guarantees due to something:
someone said or did, unless it was their employee or agent; or,
beyond human control that happened after the goods were supplied to you.
Sometimes a manufacturer may recall goods in order to fix a potential safety issue - for example a car manufacturer may recall a car due to a suspected break defect. If so, the potential safety issue does not automatically amount to a major failure on the basis that the car is unsafe.
Whether you get a repair, replacement, refund or other 'remedy' depends on whether the problem is a major failure or a minor failure. You may also be able to claim for compensation for 'reasonably foreseeable' costs caused by a problem with goods. This is usually for financial costs but can include other costs such as lost time or productivity.
If there is a major failure with the goods you can:
reject the goods and get a refund;
reject the goods and get an identical replacement, or one of similar value if reasonably available; or,
keep the goods and get compensation for the drop in value caused by the problem.
You get to choose, not the supplier or manufacturer.
A major failure with goods is when:
a reasonable person would not have bought the goods if they had known about the problem - For example no reasonable person would buy a washing machine if they had known the motor would burn out after three months;
the goods are significantly different from the description, sample or demonstration model - For example a person orders a red bicycle from a catalogue but the bicycle delivered is green;
the goods are substantially unfit for their normal purpose and cannot be easily made fit within a reasonable time - For example a ski jacket is not waterproof because it is made from the wrong material;
the goods are substantially unfit for a purpose you told the supplier about - For example a car is not capable of towing a boat that you told the supplier you need the car for; or,
the goods are unsafe - For example an electric blanket with faulty wiring.
If the problem is a minor failure and can be repaired within a reasonable time you cannot immediately reject the goods and demand a refund. You must give the supplier a chance to fix the problem, however the supplier may choose to:
provide a refund;
replace the goods;
fix the title to the goods, if this is the problem; or,
repair the goods.
It is the supplier's responsibility to return the goods to the manufacturer for repair. If the cost of repairing the goods is more than the value of the goods the supplier may offer you a replacement instead.
You must tell the supplier if you intend to reject goods and explain why, then you:
return the goods to the supplier; or,
ask the supplier to collect the rejected goods if the goods cannot be returned without significant cost to you.
If you have agreed to or asked for a repair of the goods, because you did not know you were entitled to a refund or replacement, you do not lose the right to reject the goods. Where the problem is 'major' you can reject the goods at any time and ask for a replacement or refund.
You cannot reject goods when:
the goods have been thrown away, destroyed, lost or damaged through no fault of the supplier, after they were delivered to you;
the goods have been attached to other property and cannot be removed without damage - For example removing wallpaper will damage it; or,
too much time has passed.
The right to return goods runs from the date the supplier provided the goods to you, until the fault or problam would reasonably be expected to appear. This depends upon:
the type of goods;
how a consumer is likely to use the goods;
the length of time the goods could reasonably be used; and,
the amount of use the goods could reasonably be expected to tolerate before the problem or fault became apparant.
Even if you cannot reject the goods for these reasons, you may still keep the goods and ask for compensation for any drop in the value of the goods.
You do not have to return goods in the original packaging.
When you tell the supplier that you are returning the goods, the goods become the supplier's property. You must return the goods unless the cost of returning, removing or transporting is significant, in which case the supplier must collect the goods at their own expense and within a reasonable time. Examples of goods a supplier would have to collect are:
a large screen television;
a bed;
a swimming pool filter connected to fixed pipes; and,
an extension ladder stuck in the extended position.
A business does not have to give you a refund if you simply change your mind about something you bought, unless they have a store policy to offer a refund, replacement or credit note when this happens.
A business cannot refuse to give a refund, or reduce the amount, because you did not return the items in the original packaging or wrapping.
You will usually need to have a receipt or other proof of purchase but a supplier can accept your claim if you do not have this.
You have the same rights as a person who has bought the goods directly.
The person or business giving the refund must repay any money you paid for the returned good, and return any other form of payment you made - For example a trade-in. If this is not possible, they must refund the value of the item. They must not:
offer a credit note, exchange card or replacement goods instead of a refund, you cannot accept this kind of offer; or,
refuse a refund, or reduce the amount, because the goods were not returned in the original packaging or wrapping.
A supplier or manufacturer must not tell you that a consumer guarantee:
does not exist;
may be excluded; or,
may not have a particular effect.
This means 'no refund' signs and similar signs are unlawful, because they imply that you cannot get a refund under any circumstances, even when there is a major fault with the goods. Signs that read 'No refunds will be given if you have simply changed you mind' are acceptable.
A person or business giving a replacement must provide goods of the same type and similar value. If such a replacement is not reasonably available you may choose to repair the goods or request a refund.
You must return the goods to the supplier. If this involves significant cost the supplier must collect the goods at their own expense.
The consumer guarantee that applied to the original goods will also apply to the replacement goods. For example - A consumer buys a new mobile telephone and due to a problem the supplier replaces it. Consumer guarantees apply to the replacement telephone as if it were a new mobile telephone.
The supplier must fix the problem within a reasonable time. What is 'reasonable' depends on the circumstances. For example - A supplier would be expected to repsond quickly to a request for a repair to an essential household item, such as a water heater. For goods used less often, such as a lawnmower, the reasonable time for repair would be longer.
If a supplier refuses or takes more than a reasonable time to repair the goods you can:
take the goods elsewhere to be fixed and ask the original supplier to pay the reasonable costs of the the repair;
reject the goods and ask for a refund; or,
reject the goods and ask for a replacement if one is reasonably available.
If the supplier is unable to fix the goods or cannot do so within a reasonable time you can:
reject the goods and seek either a refund or replacement; or,
have the goods fixed elsewhere and claim 'reasonable costs' from the orignal supplier.
For example several buttons came off a consumer's new shirt due to poor stitching and the tailor who made the shirt did not have matching buttons. The consumer is entitled to ask for a refund or replacement.
If you have no choice but to take the goods elsewhere for repair, you do not have to get the supplier's agreement or provide quotes. However, the supplier only has to pay the 'reasonable costs' of the repair.
A reasonable cost would be within the normal range charged by repairers of such goods and include:
the cost of the repair; and,
any other associated costs due to having the goods fixed elsewhere such as transport costs.
For example - The zip on a pair of trousers broke within a week of purchase. The retailer tells the consumer the repair will take a month. The consumer explains they need the trousers for work urgently but the retailer offers no other option. The consumer gets the zip replaced by a tailor for $25.00. When the consumer asks the retailer to pay for this, the retialer says that their tailor would have done it for $2.00. If the higher price is a normal price for the repair the retailer would have to reimburse the consumer.
A repairer of goods, regardless of whether they were the supplier or not, must notify you of particular information before accepting the goods for repair including:
if they intend to replace defective goods with refurbished goods of the same type rather than repairing the problem;
if they use refurbished parts to repair the goods; and;
if the goods are capable of storing data created by the consumer such as songs, photographs, electronic documents or telephone numbers, the repairer must inform the consumer that repairing the goods may result in the loss of the data.
Repairers that fail to comply may face:
a civil penalty of $50,000 for a body corporate or $10,000 for an individual;
a criminal penalty;
an infringement notice; or,
legal action such as an injunction, by either the consumer or a consumer protection agency.
When goods fail to meet a consumer guarantee, you may also be able to claim for compensation for your costs caused by the problem. This is usually for financial costs but can include other costs such as lost time or productivity.
You will usually need to show that you obtained the goods from that supplier or manufacturer and the same applies to gift recipients. The best proof of purchase is a receipt or tax invoice, which should always be kept.
A number of other forms of evidence are also generally acceptable including:
a lay-by agreement;
a confirmation or receipt number provided by telephone or internet transaction;
a credit card satatement;
a warranty card showing the supplier or manufacturer details and the date or amount of the purchase; or,
a serial or production number that can be linked with the purchase on the supplier or manufacturer database.
You may sometimes need to give more than one of these to support your claim that you bought the goods from a particular supplier. If you cannot demonstrate that you bought their goods, a supplier or manufacturer may still choose to accept your claim. If there is a dispute about this, you may wish to take the matter to an Australian court or tribunal.
You automatically get consumer guarantees from the person or business when you buy, lease or hire their goods. This is different to a warranty, which is a voluntary promise offered by the person or business who sold the goods, or who made the goods.
You have consumer guarantees regardless of any warranty offered by a supplier or manufacturer.
Express Warranties are extra promises a supplier or manufacturer may make about such things as the quality, state condition performance or characteristics of goods. An express warranty is not necessarily about the product breaking, it is about living up to promises. For example - when a consumer buys a deck chair, the supplier says the chair can hold up to 100kg. This is an express warranty about what the goods can do.
If the manufacturer or supplier provides an express warranty, they guarantee the goods will satisfy that warranty. For example - A supplier tells the consumer that a bed will last for 10 years. If the bed only lasts for 6 years, the consumer will be entitled to a remedy.
Warranties against defects or manufacturer's warranties provide promises to consumers that:
goods or services will be free from defects for a certain period of time; or,
defects will entitle the consumer to repair, replacement, refund or other compensation.
This is called a 'warranty against defects', or also commonly called a 'manufacturers warranty'. For example - A consumer buys a deck chair that comes with a written warranty. The warranty says the manufacturer will replace it if it breaks within 2 years of the purchase date. From 1 January 2012 a warranty against defects must be in writing and:
be presented clearly, expressed in plain language and easy to read and understand;
contain the warrantor's name, business address, telephone number and e-mail address if applicable;
set out relevant claim periods or procedures; and,
include a statement that rights under the warranty sit alongside the consumer guarantees, which cannot be excluded.
There are penalties if suppliers or manufacturers fail to comply.
A warranty against defects may also contain an express warranty. Suppliers and manufacturers both guarantee goods will meet express warranties. This means you can insist a supplier meets their responsibilities under the consumer guarantees to fix a problem, even if it is covered by other warranties.
For example - When a consumer buys a deck chair with a written warranty against defects and the chair states it can hold up to 100kg this is an express warranty. If the chair breaks after a 50kg person sits on it, the consumer can insist that the express warranty contained in the warranty against defects be honoured.
Another example is where an advertisment or a promotional brochure that simply mentions a car comes with a 'four year warranty' does not give enough detail about the nature of the warranty to determine whether it is a warranty against defects or an express warranty.
Extended warranties are offered by suppliers and manufacturers to lengthen the coverage of their basic manufacturer's warranty. You may be offered a chance to buy an extended warranty after, or at the time, you buy the goods. For example - a consumer buys a deck chair the retailer says the consumer can pay an extra $20.00 for an extended warranty to make sure the manufacturer's warranty applies for 3 years instead of 2.
Some suppliers or manufacturers may also tell you an extended warranty provides extra protection which you would not have unless you buy it. This is not necessarily true. The consumer guarantees provide rights that exist despite anything the supplier or manufacturer may say or do. Extended warranties are optional and a supplier or manufacturer must not:
pressure a consumer to buy an extended warranty;or,
tell a consumer that you must pay for any rights equivalent to a consumer guarantee.
When asked to buy an extended warranty, ask what it would provide over and above your rights under the consumer guarantees. For example - A consumer buys a plasma television for $6,000.00. It stops working two years later. The supplier tells the consumer they have no rights to repairs or other remedy as the television was only under the manufacturer's warranty for 12 months. The supplier says the consumer should have bought an extended warranty, which would have given 5 years cover.
A reasonable consumer would expect more than two years use from a television costing $6,000.00. Under the consumer guarantees, the consumer has a legal right to a remedy as the television is not of acceptable quality. The supplier may also have misled the consumer about their rights.
People often buy goods linked to services. An example of this is a mobile telephone which is linked to a contract for network services. This is sometimes called a 'linked service contract'.
If you are returning goods within a reasonable time and are entitled to a refund, you can also cancel the linked service contract. You can do this when returning the goods or within a reasonable time, however these contracts do not automatically end.
An example is where a consumer signs up for a package that includes a modem and internet access. The consumer rejects the modem because it is faulty, but chooses to keep the internet connection. Alternatively the consumer may reject the faulty modem and cancel the internet access.
When you cancel a linked service contract, you are entitled to a refund or can refuse to pay for any services that you have not yet receive. The supplier does not have to give a refund for any services you received up to the time you rejected the goods.
An example is where a consumer subscribes to 12 editions of a cooking magazine for $200.00, including $80.00 delivery. The consumer receives only 3 editions in six months, so cancels the subscription and delivery. The supplier must refund $150.00 for nine magazines not received and $60.00 for the delivery.
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