G.A.F. Control (Sales) Pty Ltd - s.87B undertaking

G.A.F. Control (Sales) Pty Ltd (GAF) is a supplier of small electrical appliances such as heaters, fans, beauty appliances and kitchen appliances under brand names including Tiffany, Avanti, Sunair and Heller.

GAF enclosed a warranty card with its small appliances that included the following statements:

• where a good is faulty the consumer is only entitled to have the product serviced and defective parts replaced;
• in order to be entitled to claim under the warranty the consumer must return the purchase receipt and warranty card with the faulty good to the retailer or alternatively must pay a fee; and
• the warranty is only valid for 12 months.

The ACCC raised concerns that these statements in the warranty card purported to restrict consumers’ statutory warranty rights.  The Trade Practices Act 1974 (TPA) implies a number of warranties that cannot be restricted, excluded or modified.

The ACCC was also concerned the above statements could mislead consumers about their statutory warranty rights, particularly because:

• where a statutory condition has been breached a consumer may be entitled to a refund;
• although a consumer may be asked to provide proof of purchase, that proof does not have to be the purchase receipt.  Further, a consumer does not have to provide the warranty card; and
• statutory rights are not limited to a set time period.  Instead, they apply for the amount of time that is reasonable to expect, given the cost and quality of the good.

GAF admits that its small appliance warranty card likely contravened sections 52 and 53(g) of the TPA.

GAF has provided court enforceable undertakings to the ACCC that it will:

• refrain from making false or misleading representations concerning the existence, exclusion or effect of any condition, warranty, right or remedy implied by the TPA;
• replace its warranty cards by 1 July 2009;
• send a letter to retailers of its small electrical appliances enclosing the new warranty card;
• place a notice on its website informing consumers about the misrepresentations on its warranty card; and
• implement a trade practices compliance program for GAF employees and other persons involved in its business.