• Complaints under Australian Consumer Law (ACL) should be lodged with the business first.
• Explain the problem and outcome you want and ask for a response within a reasonable time. It is best to put this in writing so that you have a record. Keep copies of any correspondence and documents including receipts or bank statements relating to your complaint. Also make a chronology or time-line of events and important things said or promised.
• If your complaint is accepted by the business as a basis for returning the goods it is usually your responsibility to bring the goods back to the store. Where the cost of returning the goods is significant then the supplier must collect the goods at their own expense within a reasonable time.
• If the problem is not resolved by negotiation with the business you can request help from NSW Fair Trading or in some instances the Australian Competition and Consumer Commission (ACCC).
• If the business you want to complain about is a local supplier you can contact Fair Trading who may be able to negotiate between you and the business.
• A free complaints service through an ombudsman or an independent dispute resolution scheme is available in some industries such as telecommunications, financial services and insurance.
• You could take your complaint to the Local Court or a relevant tribunal, which is something we can assist you with.

• Yes. There are certain exceptions to the consumer guarantees where a customer would not be entitled to the remedies given in the ACL. 
• A customer’s rights to a repair, replacement, refund, compensation or cancellation do not apply where the customer:

1. changed their mind;
2. found the product cheaper elsewhere unless you had made a specific promise that you had the cheapest price; 
3. decided they simply had no use for the product or regretted buying it;
4. misused the goods thereby causing the problem complained of;
5. knew or was made aware of any faults with the product before buying it; or
6. requested a service to be performed a certain way despite advice to the contrary or were unclear about what they wanted.

• You might also have an exception for items that are:

1. sold for more than $40,000 and are purely for business use;
2. purchased to on-sell or changed for re-supply;
3. purchased as a one-off item from a private seller; or
4. purchased at an auction where the auctioneer was acting as the owner’s agent.

• A product is considered to have a major problem when:

1. a consumer would not have bought it had they known about the problem;
2. it is not safe;
3. it is significantly different from a sample or description; or
4. it does not perform as expected or do what the customer requested it should do and the issue cannot be fixed easily.

• There may be a major problem with a service that:

1. a consumer would not have bought it had they known about the problem;
2. is substantially unfit for the intended purpose and the issue cannot be fixed within a reasonable time;
3. results in an unsafe situation; or
4. does not meet the consumer’s specified purpose and the issue cannot be fixed within a reasonable time.

• Book a preliminary consult online to seek advice from us.

• You will need to have proof of purchase such as a receipt or bank statement.
• Calculate as accurately as possible an amount that you require to put you back in the position you would have been in before the problem took place.
• Get in touch with the supplier. State the problem and provide the supplier with your claim for compensation.
• If the supplier does not agree to your claim for compensation or refuses to negotiate with you then consult us with a view to providing a legal letter or taking legal action. 

Question

I recently purchased a cafe, but within two months of taking ownership, another cafe owned by a well-known franchise opened just down the road. This has been of significant detriment to the income and profits of my business. When I asked the previous owner about why she was selling the business she told me it was because she wanted to take care of her sick mother. However one of the employees I kept on in the cafe told me the previous owner was fully aware that the new cafe was opening up and this was the reason she sold the business. I am now facing financial hardship as I don’t know whether I will be able to make my loan repayments and my sales have drastically dropped. Is she allowed to get away with this?

Answer

• If the owner was not telling the truth about why she was selling the business this can be considered a misleading statement but in practice it can be very difficult to prove what she knew.
• The previous owner not telling you about a competitor setting up shop close by is itself not likely to be considered misleading and deceptive conduct. As a purchaser you are required to do your own due diligence to find out whether a competitor is opening a shop.
• If you had asked the owner about whether she knew of any competitors setting up and she answered ‘no’ when in fact she knew the competitor was opening soon that may constitute misleading and deceptive conduct. However it may be difficult to prove she knew the competitor was definitely setting up. Also it may be difficult to prove that any downturn in your business after the competitor opens is because of the competitor rather than for some other reason.
• Most standard contracts for the sale of a business or property contain clauses where the purchaser agrees that they have not entered into the contract because of any representations or statements made by the vendor. Any such clause in the contract is likely to be given weight by a court and make it difficult for you to succeed in a claim.
• If you wish to take this further it is advisable for you to contact a lawyer for specific advice on the prospects of a compensation claim against the previous business owner for breaching the provisions of the ACL.

Question

My grandmother, who lives by herself, was recently sold a barbeque by a door-to-door salesperson. She told me she has no need for a barbeque but the salesperson would not take no for an answer, so she signed the papers that he presented just to get rid of him. The next day a barbeque was delivered to her doorstep. They are now pressuring my grandmother for payment and threatening her with legal action if she does not do so. They refuse to speak to me. Is there anything she can do since she would not have signed the contract if not for the pressure they put on her?

Answer

• From the scenario you described your grandmother has signed an unsolicited consumer agreement. The Australian Consumer Law (ACL) contains provisions protecting consumers where they have entered into this type of agreement.
• The ACL imposes certain restrictions on door-to-door salespeople. A salesperson must:

1. only visit the consumer during certain permitted hours;
2. tell the consumer who they are and what they are there for;
3. leave if the consumer asks them to and not contact the consumer for at least 30 days; and
4. let the consumer know of their right to terminate the agreement and how to do so.

• The business supplying the goods or services must give the customer a copy of the agreement containing the full terms including the price, delivery costs, termination rights and the supplier’s details. The agreement must be signed by the consumer and any changes to it must be signed by both parties.
• If it has been less than 10 days since the door-to-door salesperson visited then your grandmother can also terminate an unsolicited consumer agreement during the 10-day cooling-off period.
• Otherwise check with your grandmother if she has received a copy of the agreement. If she has then the agreement should contain termination clauses. If she has not received an agreement or if the agreement does not specify how it can be terminated then the supplier is in breach of their obligations under the ACL and the agreement can be terminated.
• You can also make a complaint to NSW Fair Trading if the door-to-door salesperson or the supplier breached their obligations under the ACL.

Question

I am currently backpacking around Australia and staying at backpacker hostels. My old laptop died on me, and around the same time I saw a great deal on a new laptop online, which I went ahead and purchased. I requested that the laptop be delivered to me at the hostel I am currently staying at. However I never received it. When I inquired with the supplier they said that it had been delivered and signed for by the owner of the hostel. When I checked with the owner he said that he receives a lot of mail but can’t remember receiving anything with my name on it. When I pushed him further about it he said that his name was known to all the guests staying at the hostel and anyone could have signed for it using his name. He said there was nothing he could do about it. When I contacted the supplier they said that they have fulfilled their side of the agreement. Is there anything I can do? 

Answer

• As the business is based internationally there is a possibility that the Australian Consumer Law will not apply to your case. If you had purchased your laptop from an Australian based online business then the consumer guarantees would have applied. Without more information about the company it is difficult to say. If the company has a subsidiary based in Australia then the consumer protections may still be available.
• If you have a contract with the supplier containing terms and conditions you could check this to see if it lists any possible solutions.
• Sometimes when buying from an overseas-based seller you have the option of buying insurance to ensure the safe delivery of your purchase. If you have bought insurance then you can lodge a claim with the insurance company.
• In your case there is also a question around whether the computer was delivered or not and whether someone else fraudulently signed for it. You should ask the supplier to provide a copy of the signature and other delivery details and receipts, and follow that line of inquiry.
• You can make an appointment with us online for further advice on how you can follow the evidence trail to find out if the laptop was actually delivered and whose signature was on the delivery slip and any other steps that may be taken.

Question

I purchased a brand new mobile phone but within a few days one of the buttons needed to be pressed very hard in order for it to work. I took it back to the place I bought it from and was told it was a minor issue and they will be happy to fix it for me free of charge. They asked me to leave the phone with them and said they would contact me once it was fixed. When I had not heard from them for a week I rang them and they said they had been busy but would get back to me the following week. They didn't. I've now asked them for a replacement instead but they said they are out of stock and it will be another month before their next lot comes in. It’s been more than two weeks now that I’ve been without a mobile phone. Do I have any alternative options here?

Answer

• Where a business does not repair your goods within a reasonable time you can:

1. have it fixed somewhere else and pass on the cost to the seller;
2. ask for a replacement as you have already done;
3. ask for a refund; or
4. get compensation for the reduction in value from the price you paid.

• When the goods being repaired are likely to contain user-generated data like your mobile phone the business must provide you with a repair notice in writing before the goods are accepted by the business for repair.
• As your claim is likely for a small amount it may not be worth engaging a lawyer to assist you. Your first point of contact should be NSW Fair Trading. This regulatory body has information on first-line complaint avenues if you are unsuccessful in your direct negotiations with the mobile phone business.

Question

My business has a contract with a software development company for them to develop software specific to my business requirements, install the developed software including additional software purchased from a third party, and also provide ongoing maintenance. I am not satisfied with their performance so far. They have been very slow to answer emails, difficult to get hold of on the phone, and regularly postpone scheduled progress meetings. The software they have developed for us has a significant amount of bugs which are still not fixed. The only thing that has actually worked properly in this entire scenario is the third party software. I feel it is best if I can cut my ties with this company and look for someone else to do the work. I would like to know the best way to go about doing this.

Answer

• In order to cancel the services and have access to the remedies provided by the Australian Consumer Law (ACL) the services must be covered by the legislation. This means the services must be less than $40,000.
• The first thing you should do is contact the service provider and explain that you are not happy with their performance. Let them know that you plan to stop dealing with them if they cannot fix these issues within a reasonable time.
• It is advisable to adhere to any termination provisions in your contract.
• If your business has suffered any loss or damage because of the poor service you can ask for compensation for this.
• If you have paid any amounts for the services under the contract you can negotiate a refund.
• If you cancel the contract you may have to return any goods connected with the service even if there is no problem with those goods. This may include the third party software. To do this would require the software to be uninstalled from your server and deleted from your systems. Whether this is required will depend on the specific terms of your contract. Any money you paid for goods delivered under the contract may be able to be refunded to you.
• Your legal options will depend on both the Australian Consumer Law and the contract in place with the service provider. To ensure you get the best remedies with as little impact on your business as possible it is advisable to seek our advice relating to your particular circumstances.

Question

I was sent an invoice for advertising on a website. I did not recall authorising this so I checked the website and there was indeed an advertisement with my company’s contact information on it. I run a very small business so I asked my employees if anyone knew about this but none did. I managed to find an email address on the invoice, so I sent them an email asking them for information on who authorised the advertising. I was sent a reply stating simply that they had provided us with advertising services on their website and that I was liable to pay their fees. I asked them to remove the advertisement, which they said they will do but insisted that I still had to pay their invoice for the advertisement that had been placed up until now. Do I have to pay their invoice?

Answer

• No. Judging by what you have said you will not have to pay the invoice. Under the Australian Consumer Law it is unlawful to request payment for unauthorised advertisements.
• It is permissible to send an invoice for an unauthorised advertisement if it prominently contains a warning with the wording “This is not a bill. You are not required to pay any money.”
• It may also be worthwhile reporting this to the Australian Competition and Consumer Commission (ACCC) for further action as the company who has sent you the invoice is potentially in breach of various other provisions of the Australian Consumer Law (ACL).