Goods and services sold before 1 January 2011 - implied warranties and conditions
On 1 January 2011 the Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010. The Australian Competition and Consumer Commission is reviewing this website and its publications to reflect this name change, and changes to the law brought about by the Australian Consumer Law (ACL) which forms part of the renamed Act. For further information call the ACCC Infocentre on 1300 302 502 or visit the Australian Government website www.consumerlaw.gov.au for detailed guidance to the new law.
All goods and services sold to consumers prior to 1 January 2011 have warranties and conditions attached to them. On 1 January 2011 these warranties and conditions were replaced by the new laws on consumer guarantees. It is important to remember that your customers have rights regardless of whether they purchased goods or services before or after 1 January 2011, however the law applicable to these transactions is different.
Services sold before 1 January 2011 must have been carried out with due skill and care. Any materials provided as part of the service must also have been fit for the purpose.
If you failed to meet any of these obligations, the consumer has the right to have the service repeated, or can seek payment for the cost of having it supplied again by someone else. If you have not provided a service with due skill and care or if the material you have supplied as part of the service is not fit for the purpose, then the consumer may also be entitled to claim compensation for expenses they have incurred as a result, such as loss or damage.
Consumers also have responsibilities when they request services from you. They need to make it clear what it is they want done. If they insisted that you perform a service in a particular way or that you use particular materials, you cannot be held responsible if, as a result of the specified method or materials, the service is unsatisfactory. In these circumstances, you may wish to confirm in writing for your own records that the materials or method were specified by the consumer, and were not advised by you.
Good sold before 1 January 2011 came with a number of conditions and warranties that were implied by the TPA.
These goods must be:
of merchantable quality—that is, goods need to reach a basic level of quality given the price of the goods and any description that is provided with the goods
fit for the purpose or job that the consumer described to you or that are self-evident
match any description or sample given to the consumer whether in promotional material, over the phone, in person, on a website or on labelling or packaging
are free from defects and faults.
These goods mustn't have any debt or financing owed on them, i.e. the consumer should have free title to the goods.
If the goods you have sold do not fulfil any of these conditions then the consumer may be entitled to a refund from you on return of the goods. If the goods have been partially consumed the consumer may be entitled to a refund depending on the circumstances and the extent to which the goods have been consumed.
Consumers may also choose an alternative remedy to a refund. In these circumstances you may want to offer an exchange, a credit note or to repair the goods.
You have the right to ask for proof of purchase from the consumer, for example, a receipt or credit record.
You are not obliged to provide a refund, credit or exchange if a consumer has:
changed their mind, decided they no longer want the goods or just don’t like them, or found that goods are the wrong size or colour
found they can buy the same or similar goods elsewhere for a cheaper price
examined goods before buying them and should have seen any fault at that time
had a defect drawn to their attention before they purchased goods, for example, when goods are clearly labelled as seconds or faulty.
A customer needs to approach you regarding a refund in what is called ‘a reasonable period of time’. There is no specific time limit for a refund. A reasonable period of time is determined by a court based on the goods, their use and any other relevant information. Statutory time limits in various state and territory legislation for an action for breach of contract are also relevant.
Consumers of goods purchased before 1 January 2011 can claim compensation from the manufacturer (or importer if the manufacturer does not have a place of business in Australia) if goods are not:
of merchantable quality—that is, they are a basic level of quality given the price and any description that is provided with the goods
fit for the purpose or job that the consumer described to you or that are self-evident
in accordance with any description or sample given to the consumer whether in promotional material, over the phone, in person, on a website or on labelling or packaging
These conditions apply to goods purchased prior to 1 January 2011 that are meant for personal, domestic or household use.
You are not liable if the fault resulted from incorrect advice provided to the consumer by the retailer or a problem that occurred after the goods left your control.
If the goods you have supplied do not meet these requirements, then a retailer may also be able to claim compensation from you if they have provided a consumer with a remedy.
If goods purchased prior to 1 January 2011 are defective and as a result someone suffers injury or property is damaged, then consumers have the right to pursue compensation from the manufacturer or importer if the manufacturer does not have a place of business in Australia.
