Goods and services bought before 1 January 2011

If something goes wrong with goods and services you bought before 1 January 2011, the information below outlines your rights to having the problem fixed.

On this page

 Do I still have rights if I have a problem?

Yes.  You have rights under the laws that existed at the time you made the purchase (not the laws that applied at the time you noticed the problem).

This means that purchases made:

• on or after 1 January 2011 are covered by the new consumer guarantees regime.
• before 1 January 2011 are covered by the old implied warranties and conditions regime.

Your statutory rights are not limited to a set time period – they do not just 'expire' or 'run out'. The length of time they apply for depends on what it would be reasonable to expect, given the cost and quality of the goods or services you bought.

For example, you would expect an expensive household appliance (such as fridge) to last longer than a smaller or cheaper appliance (such as a toaster).

What are my statutory rights for goods?

Under the Trade Practices Act, the following statutory conditions were implied into your consumer contracts for the purchase of goods:

• The goods must be of merchantable quality - they must meet a basic level of quality and performance, taking into account their price and description. They also should be free from defects that were not obvious to you at the time of purchase.
• The goods must be fit for their purpose -they should do what they are supposed to do and be suitable for any purpose that you might have made known to the supplier.  
• The goods must match the description you were given or the sample you chose from.
• You must receive clear title to the goods, including goods bought at auction. In other words, you can expect to own the goods outright and any restriction on ownership should be explained to you beforehand.

The Trade Practices Act also imposes a warranty into every transaction for goods, entitling you to quiet possession of the goods. This means the seller must disclose any restriction on ownership, such as a previous outstanding debt, before sale.

Statutory rights apply whether the goods are new, 'seconds' or second-hand. While you can expect that goods will meet the basic requirements outlined above, you should be prepared to take reasonable account of factors like price and age.

Apart from implied rights in relation to clear ownership rights, the statutory rights above do not cover goods bought at auction.

What are my statutory rights for services?

Under the Trade Practices Act, the following statutory warranties were implied into your consumer contracts for the purchase of services:

• Services must be carried out with due care and skill.
• Any materials supplied in connection with the services must be reasonably fit for the purpose for which they were supplied.

These warranties may not apply if:

• you did not make clear what you wanted done 
• you insisted on having the service carried out in a particular way and you did not like the result
• you asked that the materials be used in a way they would not ordinarily be used and you did not like the result
• the agreement involves the transportation or storage of goods for your business purposes or relates to a contract of insurance.

Am I entitled to a remedy for a problem?

If goods or services do not meet a statutory condition or statutory warranty, it is a breach of the contract between consumer and seller.

This means that you may be entitled to a remedy from the seller.

The appropriate remedy will depend on the particular circumstances and may include:

• repair or replacement of the goods
• exchange of the goods or re-supply of the services
• payment for these things to be done, or
• refund (in some circumstances).

The form of remedy depends on whether the problem relates to breach of a statutory condition or statutory warranty.

Remedies for problems with goods

Under the Trade Practices Act, you have the right to seek a refund if one of the statutory conditions is breached. 

This means that you may be entitled to a refund if the goods you purchased before 1 January 2011:

• are or become faulty through no fault of your own
• are not fit for a stated purpose or a purpose you made known to sales staff at the time of purchase
• do not match the description or sample shown to you
• have defects that were not obvious or not shown to you before you purchased.

However, the goods must be returned within a reasonable period and you may be asked for proof of purchase. Be aware that you may only be entitled to a partial refund if the fault develops after you have enjoyed some use of the goods.

Depending on the circumstances, you might reach an agreement with the seller that another form of settlement is appropriate, such as to exchange the goods, or have the goods repaired.

When you should not expect a refund

Generally, sellers do not have to give you a refund, credit or exchanges if you:

• simply change your mind, decide you do not like the goods or have no use for them (except, for example, when door-to-door sales legislation provides for a cooling off period)
• have discovered you can buy the goods more cheaply elsewhere
• examined the goods before buying them and ought to have seen any obvious fault
• had any defects drawn to your attention before buying (for example when the goods were labelled as seconds and faults were clearly marked)
• damaged the good by unreasonable or unintended use.

Remedies for problems with services

Under the Trade Practices Act, you do not have the right to cancel a contract when a statutory warranty is breached.

This means that you are not entitled to insist on a refund for services you contracted for before 1 January 2011. Many retailers, suppliers and manufacturers will offer to repair, replace or exchange the materials or to perform the services again.

What to do if you think your rights have not been met

Tell the trader you are unhappy and make a complaint

If you think your rights have been breached, you should attempt to resolve your concerns with the trader.

If you are not sure how to approach the trader, follow the steps on our How to complain page. This page can help you write a letter to a trader and give you guidance about who else you can contact for assistance.

Sometimes a trader might tell you that it is not their responsibility to deal with your faulty product and they could try and refer you directly to the manufacturer.

As you have a contract of sale with the trader, the trader has a responsibility to help you. In turn, the trader has a right under the Trade Practices Act to seek compensation from the manufacturer.

Could the consumer protection agency in my state help me?

If you cannot negotiate a satisfactory outcome with the trader, and your complaint involves a local business, your local consumer protection agency may be able help you to resolve your concerns or provide information about lodging claims in your local small claims tribunal.

What can the ACCC do?

The ACCC cannot bring an action against any corporation for a breach of the conditions and warranties implied into consumer transactions by the Trade Practices Act.

This means that you, as the consumer, must negotiate with the seller or service provider or, when necessary, pursue legal action on your own behalf.

We can provide you with information to help you negotiate.

What happened on 1 January 2011?

On 1 January 2011, the Australian Consumer Law (ACL) came into effect. The ACL is a new national law designed to protect consumers and ensure fair trading.

One of the main reforms introduced by the ACL is consumer guarantees. Consumer guarantees are a comprehensive set of rights and obligations in relation to the supply of goods and services to consumers.

The consumer guarantees replace the existing implied warranties and conditions regime contained in the Trade Practices Act 1974 and in the state and territory fair trading laws.

The consumer guarantees are based on the same core principles as the implied warranties and conditions laws, but set out your rights in a clearer way.