Sally Scott, partner at law firm Hall and Wilcox, told SmartCompany she expects we will see a spate of similar cases.
“There is widespread non-compliance with these laws by retailers and it was only a matter of time before the ACCC moved from warnings to taking court action,” she says.
Scott says most retailers continue to get guarantee and refund rights wrong.
“They are misrepresenting rights available to consumers. They are suggesting that their specific conditions apply to all refund and exchange rights when in fact those specific conditions do not apply to the refund and exchange rights available under the Australian Consumer Law.”
Scott says retailers and manufacturers can provide additional refund and exchange rights beyond what is available under the law and they can provide conditions on those additional rights.
However, what they can’t do is suggest that consumers only have those specific refund and exchange rights or that all refund and exchange rights are subject to the retailer’s conditions.
“If I go into a shop and buy a jumper and it turns out to be faulty or it doesn’t last as long as it should have, then I will have rights under the Australian Consumer Law,” Scott says.
“Those rights can’t be excluded or altered by the retailer. I will have those rights even if the shop displayed a sign saying ‘no refund or exchange on sale items’ and I bought the jumper on sale.”
Scott warns the law does not look at whether the retailers intentionally did the wrong thing.
“The law says a statement or representation can be misleading, regardless of any intention to do the wrong thing,” she says.
“Therefore, retailers can’t just turn a blind eye to this issue.”
Scott says all retailers should review their terms and conditions and their shop signs to ensure that they do not mislead in this way, otherwise they could face legal action by the ACCC like Hewlett Packard and the Harvey Norman franchisees.
“Retailers cannot assume that just because everyone else is doing it, they won’t get caught. Retailers are now getting caught,” she says.
Harvey Norman was contacted but declined to comment.
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