Consumer Disputes

Each year we assist many clients, both business and personal, with resolving disputes regarding goods and services.

Businesses selling goods and services must comply with strict rules in Australia, and risk severe penalties and potential law suits if non compliant. We have put together on this page a summary of key issues that businesses and consumer should both be aware of.  Please let us know if we can assist you or your business in relation to any consumer disputes.  For businesses, we can also help with the drafting of documents that help to avoid these problems in the future and in circumstances where a dispute arises, provide a clear mechanism for resolving the claim.

  • What are the main laws that apply to consumer disputes?

    In Australia, consumer disputes are governed by the Australian Consumer Law (ACL) which applies nationally and in all States and Territories and to all Australian businesses. The ACL covers general standards of business conduct, prohibits unfair trading practices and regulates the safety of consumer products and product-related services.  It is enforced jointly by the Australian Competition and Consumer Commission (ACCC) and the various State and Territory consumer protection agencies (in NSW this is NSW Fair Trading).

    The Australian Securities and Investments Commission (ASIC) enforces the ACL relating to financial services. The ACL places quite onerous obligations on businesses and it is vital that they have at least a working understanding of them. These agencies have offered guidance to businesses on the Consumer Law and business obligations relating to consumer guarantees, unfair contract terms, consumer product safety, sales practices and avoiding unfair business practices.

  • What are the main types of guarantees that consumers have when buying goods and services?

    Suppliers and manufacturers of goods automatically provide guarantees about certain goods and services they sell, hire or lease.

  • What are the consumer guarantees applying to goods?

    Consumer guarantee provisions apply to both suppliers and manufacturers of goods. It is also important to note that the importer of the goods is responsible for consumer guarantees if the maker of those goods does not have a place of business in Australia.

    A supplier and manufacturer guarantee that –

    • Goods are of acceptable quality
    • Goods will match any description provided
    • Any express warranties will be honoured

    A supplier makes the following further guarantees:

    • Goods will have clear title, unless otherwise stated
    • Goods do not have undisclosed securities
    • Goods are fit for any disclosed purpose
    • Goods come with a right to undisturbed possession
    • Goods match the sample or demonstration model provided
  • What are the remedies for breaches of a consumer guarantee relating to goods?

    If a supplier fails to meet a guarantee, the remedy may be –

    • A repair, replacement or refund;
    • Compensation for damages and loss

    It is often the case that a supplier will deal with a manufacturer’s problem as the consumer comes to the supplier directly. If this is the case, the manufacturer must reimburse the supplier.

  • What are the main consumer guarantees relating to services?

    A supplier guarantees that their services are provided –

    • With due care and skill;
    • Fit for any specified purposes (however, this guarantee does not apply to professional services provided by a qualified architect or engineer); and,
    • Within a reasonable time
  • What are the remedies for a breach of a consumer warranty relating to services?

    If the problem with the service is minor the supplier can choose between fixing the problem with the service (at no cost and within a reasonable time) or offer the customer a refund.

    For more serious problems with services, the consumer can:

    • Cancel the services and get a refund for those parts of the service not already consumed; or
    • Keep the contract and get compensation for the difference in value;
    • Take an action to recover damages from the supplier for any reasonably foreseeable loss or damage
  • What is Misleading and Deceptive Conduct?

    It is unlawful for a business to make statements in trade or commerce that are misleading or deceptive or likely to mislead or deceive. “Conduct” includes, for example, advertisements, promotions, quotations or testimonials, statements and any representation made by a person. Business conduct is likely to fall foul of these provisions if it creates a misleading overall impression among the intended audience about the price, value or quality of consumer goods or service. It can also be misleading and deceptive to fail to disclose relevant information, promises, opinions and predictions, or keep silent about these matters. The law focuses on whether the business conduct could affect the thoughts and beliefs of a consumer rather than the intention behind that conduct.

    Making false or misleading statements is an offence. The maximum fine is $220,000 for an individual and $1.1 million for a corporation.

    Civil remedies include –

    • Injunctions;
    • Damages;
    • Compensations orders;
    • Orders for non-party consumer redress;
    • Corrective advertising orders;
    • Orders disqualifying a person from managing a corporation
  • What is Unconscionable Conduct?

    A business must not act unconscionably when supplying goods or services to a consumer or business or acquiring goods or services from a consumer or business.  This prohibition on unconscionable conduct under the ACL is much broader than the traditional definition in the common law.

    Some examples provided by the ACCC and state and territory agencies include:

    • Signing someone up for a training course they know has no means of completing as the person does not speak English or has a disability;
    • Not allowing a person sufficient time to read an agreement, to ask questions or to obtain advice on the agreement;
    • Not properly explaining the conditions of a contract to a person they know does not speak English or has a learning disability.
  • How we can help?

    If there is a dispute about goods or services, we can assist the parties to negotiate an outcome where the consumer feels that their concerns have been addressed, whilst at the same time protecting the vendor or manufacturer from expensive litigation. We achieve settlements through identifying the issues in dispute early on, and taking a constructive approach to dispute resolution.  Sometimes we engage skilled mediators or we can directly negotiate through informal settlement procedures.

    Call our Disputes Team today on (02) 9411 4466 as we are confident that we will be able to help you in relation to your situation.