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10 Dec 2020

To ensure you know your rights when buying, and returning, merchandise, Blair Campbell, Special Counsel in our Dispute Resolution and Commercial Litigation team has provided a Christmas Consumer Rights Refresher. The guide below will provide you with an overview of your legal rights as a consumer under the Australian Consumer Law when returning faulty goods.

Christmas shopping consumer rights In article

It is that time of the year, when chaos in shopping centres hits its annual peak, and brains are strained thinking of that perfect gift for the person who has everything. It is this exact thing that leads to the least-best part of the Christmas season – the post-Christmas return round-about.

  1. You do not have the right to a change of mind return. Many stores will provide this as a goodwill gesture, but choosing the wrong item, the wrong size, or hating that Christmas tie that plays Jingle Bells, does not give you the right to a refund or exchange.
  2. However, there are several circumstances where you may be entitled to a refund. Common examples include:
    1. Where the item is not a merchantable quality. This means that the goods must be fit for the purpose or purposes for which goods of this type are generally acquired, acceptable in appearance/finish, free from defects, safe, and/or reasonably durable for a good of that type. Reasonable durability will depend on the nature of the good and is not limited by the express warranty period.
    2. Where the item is not fit for the purpose for which it is sold. If you tell someone that you want to buy a tool to do a certain job, and they sell you something to do it, it must be capable of doing that job.
    3. Where the item does not correspond to its description. Common examples are where a person buys an item because it has been advertised to look a certain way or is a certain colour, but on arrival it looks markedly different.
  1. In order to exercise your rights to a remedy you must ‘reject’ the goods.
    1. This requires you to act promptly – goods cannot be returned if the ‘rejection period’ has passed – normally this is the period when the fault should have been identified,
    2. You must be able to return the goods – if they have been lost, stolen or destroyed you may lose your rights,
    3. The goods must not have been damaged by other causes, and
    4. The goods must not have been fixed to or incorporated into other property.
  2. The remedy to which you are entitled depends on the nature of the fault.
    1. If a reasonable buyer would not have acquired the good in the first place had they known of the fault, it is likely a major fault. If the product is unsafe, it is likely a major fault. If the item is substantially different or is unfit for its purpose, it is probably a major fault.
    2. If it is not a major fault, it may be a minor fault.
  3. If the fault with the product is major, you have the following rights:
    1. You can demand a refund, or
    2. You can demand a replacement.

Where the fault is major the customer has the right to choose whether they will accept a refund or replacement. A supplier may offer repair, but a customer does not need to accept this option where the fault is major.

  1. Where the fault is minor the supplier must provide a refund, replacement, or repair – but the supplier can elect which remedy it offers.
  2. Normally it is the customer’s obligation to return the good, unless it is impractical to do so. If you must pay to return the good, and the good has a major fault, you are entitled to be reimbursed for those costs.

If the good is bulky and impractical for you to return, you must notify the supplier of the problem – triggering the rejection of the good – and requiring they arrange for collection at their cost within a reasonable period. If the problem is not confirmed, the customer may be liable for the reasonable costs of collection.

Goods do not need to be returned in their original packaging for your consumer rights to arise.

  1. YOU DO NOT NEED TO GO TO THE MANUFACTURER to exercise your rights. While you have rights against the manufacturer the guarantees outlined above are guarantees made by the supplier – and you are entitled to enforce those rights against the supplier of the goods.
  2. IT IS ILLEGAL FOR A SUPPLIER OF GOODS TO TELL YOU THAT YOU DO NOT HAVE THE ABOVE RIGHTS. Misleading you about your consumer rights is itself unlawful, and pecuniary penalties apply where suppliers are found to have contravened this. Examples include ‘no refunds’ signs, telling you that you must use an express warranty with the manufacturer, or telling you that because your express warranty period has ended you have no rights to the above remedies.

Now you are fully armed with your legal rights as a consumer you are ready to dive into the battlefield of Christmas shopping and returns.

HHG Legal Group’s Dispute Resolution team can assist you

Our Dispute Resolution and Commercial Litigation team consists of practical and results-driven lawyers who are committed to helping you resolve your problems in the quickest and most cost-effective manner possible. If you or your business are in dispute or can see a dispute looming, please contact us via email or call us on 1800 609 945 to make an appointment to achieve your desired outcome.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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