Consumer Claims (NSW)
In New South Wales, consumer claims are covered by Australian Consumer Law (ACL) that is set out in the Competition and Consumer Act 2010 (Cth). ACL is administered by NSW Fair Trading. This articles deals with consumer claims about goods and services.
Under ACL, businesses must guarantee their products and services. The guarantees provide consumer rights when products or services are defective.
Products must be safe, lasting, have no faults, look acceptable and be fit for purpose. They must also:
- match all descriptions, on packaging and in advertising;
- come with full ownership and undisturbed possession;
- not carry hidden debts or charges;
- meet any extra promises, such as lifetime guarantees;
- have spare parts and repair sites available unless a consumer is told otherwise.
- be provided with sufficient care, skill and technical knowledge and avoid loss and damage;
- provide results agreed by the parties;
- be delivered in reasonable time when there is no end date.
Misleading and deceptive conduct and unconscionable conduct
Section 18 of the ACL states a business must not mislead or deceive a consumer, whether the business intends to or not. Misleading conduct includes conduct that is liable to mislead the public about the nature, characteristics, suitability or quantity of goods or services.
Under section 21, the business also must not engage in unconscionable conduct, where it takes advantage of power imbalance between itself and the consumer. This conduct includes a business exerting undue influence or pressure on a consumer, or failing to disclose risks to a consumer.
Unfair contract terms
Under Section 23 of the ACL, a contract between a business and a consumer is void if the contract contains an unfair term and the contract is a standard from contract (one where the consumer has little or no opportunity to negotiate the terms). A term is considered unfair if it:
- would cause a significant imbalance in the parties’ rights and obligations under the contract;
- is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by it;
- would cause detriment to a party if it were to be applied or relied on.
Unfair terms include those which allow one party (and not the other party) to breach, vary or renew the contract, or to avoid or limit performance of the contract.
False or misleading representations
Section 29 of the ACL makes it an offence for a person to make false or misleading representations about goods or services. Such false or misleading claims may be that:
- goods are of a particular standard, quality, value, grade, composition, style or model;
- services are of a particular standard, quality, value or grade;
- goods are new;
- a person has endorsed goods or services;
- there are facilities available to repair goods or supply spare parts;
- there is a requirement to pay for a contractual right.
First steps in a dispute
A consumer should always first try to negotiate a resolution with the business, either in person, by phone or by email or the business’s social media page. Details of the conversation should be kept, including the name of the person, the date and the content of the discussion. Depending on the complaint, the consumer can request a refund, repair or replacement. If the problem is not resolved, the complaint should be put in writing. If the dispute is still not resolved, there are several options.
If a consumer and business have shown they are unable to resolve a dispute, NSW Fair Trading will attempt to mediate an outcome satisfactory to both parties. Participation is voluntary and any determination is not binding.
NSW Civil and Administrative Tribunal
If an agreement cannot be reached via mediation, an application can be made to the NSW Civil and Administrative Tribunal (NCAT). NCAT can determine a consumer dispute in one of several ways, including:
- ordering money be paid or refunded;
- ordering specific performance under a contract;
- ordering rescission of a contract.
The NSW Ombudsman investigates complaints about public sector agencies, local councils, community service providers, prisons and public interest disclosures. It also provides education and training about complaint handling, and reviews designated Aboriginal programs.
After considering a dispute, the Ombudsman can recommend, for example, that:
- conciliation be attempted;
- the matter not be investigated, and provide reasons for this decision;
- the matter be referred to an authority such as NCAT or the Supreme Court to be determined.
As a regulator, Fair Trading NSW states its “main concern is to minimise any direct financial or material harm or detriment to a consumer from a business that fails to comply with the law”. This places the public interest as the over-riding concern for the agency in deciding whether a matter should be prosecuted. Court orders sought include fines, injunctions or trading prohibition orders.
For advice on consumer protection, or advice or representation in any legal matter, please contact Armstrong Legal.