Hi guys, recently my garmin watch's GPS stopped working so I brought it back to Harvey. They assessed and said I can either get a replacement or store credit. The watch was bought in Dec 2017.
I asked if I could just get a refund instead and their reply was no because it's almost out of warranty.
Am I entitled to receive a refund? Is "almost out of warranty" a valid reason to reject a refund?
Major I would say
https://www.accc.gov.au/consumers/consumer-rights-guarantees…
I would say if this is not a common occurrence in this model of watch that it would fall under minor problem, and therefore the store is entitled to offer a replacement.
I thought major because without gps it's no longer fit for purpose
it is substantially unfit for its common purpose and can’t easily be fixed within a reasonable time
I guess it's open to interpretation, but I'm basing my opinion on the above point.
While the GPS is broken, it is substantially unfit for purpose, but offering a replacement will fix the issue within a reasonable time.
If they had to take it away and it would take a month, I would class that as a unreasonable amount of time, but to me, an immediate replacement is reasonable.
@tomsco: Yeah - a repair includes replacing all the parts, i.e. a full replacement. It goes back to whether the GPS not working almost a year later counts as a major defect.
That's the issue with the ACL - lots of grey areas.
While the GPS is broken, it is substantially unfit for purpose, but offering a replacement will fix the issue within a reasonable time.
Seems like OP is not entitled to store credit or new replacement. They could, take away old watch, return it repaired.
IMO, their offering store credit, or brand new replacement, goes beyond their legal fair trading requirements.
That said, for the sake of good customer service and customer goodwill towards Harvey Norman as a brand a refund would be nice. But then, if you're insisting on refund rather than store credit…. well they may take that as your not going to spend that refund there so your not a regular customer.
Because it is a franchise, they are bound by franchise agreement and kind of have to follow what head office tells them.
Could contact Harvey Norman head office to seek a resolution, but you have had 11 months use out of it, and they don't have to do anything more than repair it and return it in a reasonable timeframe. If you want the next model up, maybe see if you can negotiate something there.
@[Deactivated]: Major is if they can't make it fit for purpose by replacing or repairing. (eg, the GPS relies on some web service which is no longer available / all the GPS satellites have dropped out of the sky).
The wording of the ACL is that major is basically 'un able to be remedied' rather than what proportion of the functionality is not working. The thing could be completely dead it would still be minor on its first offence after 11 months.
If they can't fix or replace it, it's major.
If you get a new one, and it dies again almost immediately, you can argue major.
If GPS satellites fall out of the sky and it no longer 'can' work even if replaced, it's major.
@[Deactivated]: @Bargs
The term major or minor is determined by the effect of the fault.
In this instance, if the watch was sold where the GPS is an important part of the watch. Eg, if it's a running watch that's meant to track speed, time, distance, the GPS becomes a main component of the watch.
Also, ACCC states that
"When you have a major problem with a product, you have the right to ask for your choice of a replacement or refund. For a major problem with a service, you can choose to receive compensation for the drop in value below the price paid, or a refund."
The term major or minor is determined by the effect of the fault.
If the effect is they give him a replacement when he walks into the store, the effect of the fault is very low. It didn't work, and now he has a replacement, it does. Thus minor.
Again. It has nothing at all to do with what part fails, complete and total failure, still counts as minor as far as the ACC is concerned, provided:
- It's not dangerous (eg, it caught fire would be a major failure)
- It's repaired / replaced in a reasonable period of time (In OP's case, he was offered a replacement immediately)
- The replacement would not also have this defect (the replacement would have a GPS).
@[Deactivated]: The remediation process does not determine whether the issue is major or minor.
"If a product or service you buy fails to meet a consumer guarantee, you have the right to ask for a repair, replacement or refund under the Australian Consumer Law. The remedy you're entitled to will depend on whether the issue is major or minor."
The issue is identified first, then classified as major or minor then the way it is remediated.
The remediation process has no bearing on determining an issue is major or minor.
You're incorrect. I don't know what more to say really. Minor issues become major when they're not fixed in a timely fashion.
Seriously there's one couple that had their engine cut out 14 times in a 6 month period before they had the issue declared major and received a refund. That's an extreme example, but the first failure was definitely minor, despite the car being undrivable.
The type of fault has no bearing on if it's major or minor unless it's dangerous or would also be present in the repaired/replaced item. (eg, you buy a TV and it's out of focus, but all the replacements are also out of focus). Thus major, you get your money back. If it's just that yours is out of focus, and they give you a replacement that's fine the same day, it's minor.
@[Deactivated]: @Bargs
The Treasury completed a review into clarifying what is classified as a major/minor fault and their remedies.
It states that the law is unclear in two particular scenarios; when a product fails to meet consumer guarantees within a period of time and when there's multiple failures.
In this case, it is clear cut as "the goods are substantially unfit for their normal purpose or a disclosed purpose and cannot easily
and within a reasonable time be made fit"
Please refer to https://consult.treasury.gov.au/market-and-competition-polic…
@marka: Good read. Seems to back up that this isn’t a major failure. They’re proposing to make it a failure within 30 days is a major failure to make it more clear. 11 months being more than 30 days seems to be even the intent of the current law is that this is minor.
@[Deactivated]: Also wanted to note, for the particular example the review looks into the existing way it generally is determined.
It says that ACL regulators generally take the point on whether a reasonable consumer would have bought the product if they knew the nature of the fault and the extent (in this case how often/long) of the failure. The couple would not have bought the car if they knew the engine was cutting out at all.
And this is even after two cases with similar scenarios with different results; one classified as major and the other case as minor.
EDIT: spellings
@marka: A reasonable consumer absolutely would buy a watch that lasts 11 months before being replaced on the spot with a new one.
I know because I have literally returned a $1300 watch for repair after 11 months and was given a new one on the spot. Even though the new model was out there was no way they were going to give me a refund nor the new one. OP is getting a much better deal than I did yet I still have no regrets, 3 years later the replacement is still going strong.
I’ve had the same with a car that leaked, they fixed it for free, gave me a loan car better than my own while it was repaired and more than a decade later the car is fine. The time to fix / replace is key here. Consumers are fine if things are dealt with well, but get pissed off if not, understandably.
OP was offered an on the spot replacement…
These things become major if not fixed promptly, but otherwise they are minor.
@[Deactivated]: @Bargs
The flaw in your example is, a reasonable consumer does not expect the watch to last only 11 months before being replaced.
ACL is used to ensure consumers can expect what they pay for.
Under the remedies section, you could have gotten a refund. Whether or not you go through is up to you.
Again, time to fix is NOT the key. The fault determines major or minor.
I have referred to the Treasury review, I hope you read it.
Here's an interactive decision guide from ACCC to determine the remediation that can be provided.
https://www.accc.gov.au/consumers/complaints-problems/resolv…
The fault is determined as minor or major FIRST, then the how it is to be remediated. Note: several minor faults can be classified as major later on.
@marka: http://consumerlaw.gov.au/consultations-and-reviews/review-o…
Probably worth you 'actually' reading this. And my response with detailed analysis below (reading it really backs me up 100%).
The TLDR is :
- Currently the consumer must prove that the failure is major, with expert opinion
- The suggested 'fix' to make it 'easier' for a consumer to prove it's major is to say 'a failure within 30 days' wouldn't require proof.
- All of the case law and the treasury review disagrees with you. For sure, one of the things raised in the treasury review is the difficulty in proving that a failure is major. So difficult it is, that no one has yet proven it in the case of a good which failed after being used successfully for a period.
So if you really want to argue that that's the intention of the ACL. Go ahead. The reality is it doesn't work that way, nor was the suggested fix to it proposed to work that way.
Unfortunately some general advice on a website isn't the law, nor is it legal advice. The rejection period applies even if you somehow managed to prove it's a major failure, it will have passed and your right to a refund is not enforceable.
@[Deactivated]: If the entire thing needs replacing (not just a part) then it is a major fault and the choice of refund/repair/replace is for the consumer to make, by law.
@Parentheses: Unfortunately for it to be major the onus of proof is on the consumer to prove the defect existed when it was sold, and that it was caused due to the product not being of merchantable quality. The retailer/manufacturer can charge for them to test the product (ACCC vs LG) in the case where the defect is found to be caused by misuse no refund is available.
There's a 'rejection period' for goods in order for a defect to be considered major which in the only case I've found of it being tested, was rejected because for a CAR the issues were not noticed for 9 months.
In order to obtain a refund, the applicant must present expert opinion evidence that will persuade the tribunal that there is an inherent defect in the vehicle that was present at the time of supply; that it was the cause of the problems suffered; and, in order to obtain a refund, that the defect constitutes a major failure to comply with a consumer guarantee.
Basically, the retailer can make this very very difficult for a customer that wants a refund. As of yet, no one has succeed in suing for a refund for a defect that didn't cause the product to be unsuitable at the time of supply.
I mean. Basically. You're welcome to hold the opinion this will be counted as major as much as you want, but until a retailer loses a case over this, I'm as right as it gets.
As to your link, this is the most important part on in that interactive decision guide:
Note: This information is for general guidance only and should not be relied on as legal advice.
I have referred to the Treasury review, I hope you read it.
I really don't think you did. They identified the issues with proving a major failure. They proposed in their report one option could be to specify a period of '30 days' to be the proposed time in which a consumer could claim major failure without having the onus of proof on them.
Options exploring how to best clarify a consumer’s right to choose a remedy of a refund or replacement in the event of a failure to meet the guarantees, within a short period of time, are being considered.
To address the problem, three options are proposed:
• Option 1: Status quo.
• Option 2: Specify a short period of time during which a consumer is entitled to a refund or replacement without needing to prove a major failure. The proposed period is 30 days.
• Option 3: Option 2, but specify a different time period for high value goods, such as motor vehicles and white goods, based on a monetary threshold, during which a consumer is entitled to a refund or replacement without needing to prove a major failure.
– Within Option 3, there is consideration of two approaches: A longer period of time for high value goods and an exemption (status quo) for high value goods.
And this really really important nugget
A non-major failure is any failure to comply with the consumer guarantees that does not meet the test of severity outlined above. For example, the goods may be ** substantially unfit for normal purpose but can be remedied** to be made fit for purpose easily and within a reasonable time.
And this is the subsection (from your linked treasury review) in the ACL where, per my previous comments, the time makes the difference, basically you can call it major all you like, after the rejection period, you can't claim a refund even for a major failure:
- However, the ACL already sets a limitation period, known as a ‘rejection period’, on when goods can be rejected by the consumer for a refund or replacement. Consumers cannot reject goods and choose their preferred remedy once the ‘rejection period’ for the goods has ended. This existing concept may provide an effective ‘exemption’ in place of creating product-specific exemptions to the new consumer right proposed in Option 2.
- The ‘rejection period’ is the period of time within which it would be reasonable to expect the failure to become apparent. In determining this period, regard is given to the type of goods, the use to which they are likely to be put, the length of time it is reasonable for them to be used and the amount of use to which it is reasonable for them to be put before the failure becomes apparent. Therefore, if the ‘rejection period’ for certain goods is shorter than the short specified period (such as perishable goods), the ‘rejection period’ would limit the entitlement to reject these goods to this shorter period. After the ‘rejection period’ has ended consumers may still be entitled to a remedy if there has been a failure but they would not be able to reject the goods and choose their preferred remedy.
@[Deactivated]: Sorry, I know this thread is a little old now but I too am facing issues with Harvey Norman warranty and thought I would chime in on this comment.
The OP in this case definitely has a Major problem, when it comes to products & services you only need to satisfy that had you have known about the problem in advance you would not have purchased the item which is the test used to determine fit for purpose since the problem would have prevented its sale. Which leads to the second point of not being fit for purpose with no timely repair available.
However if Harvey Norman can offer a direct replacement then this should suffice and should not be obliged to offer a refund.
if Harvey Norman can offer a direct replacement then this should suffice and should not be obliged to offer a refund.
Yes.
How do you define minor/major?
Legally the onus is on the consumer to prove it's major. If the retailer disagrees they have to sue. So far no one has successfully won (or even bothered to bring a case) against a retailer for problems which they couldn't approve made the product unsuitable for use the moment they received it.
There's a treasury review which suggested on option would be to make it 'a failure within 30 days'.
http://consumerlaw.gov.au/consultations-and-reviews/review-o…
I personally think it's quite major because the Forerunner 235 takes the time from the GPS (or you'd have to manually set it). So the time couldn't be automatically synced since the GPS stopped.
It's only major if they can't fix / replace it with a working one it or it was always broken. It's not down to a specific piece of functionality being working now, it's down to whether it will ever work again.
Playing devil's advocate:
Because the watch broke within a year the OP "might" successful argue that the watch was not of merchantable quality*.
The case would then qualify as a breach of a statutory condition.
People are entitled to seek damages for breaches of a statutory condition.
Hence, the OP would be entitled to a refund.
*Determined by asking if a reasonable consumer would expect the good to break within that time frame.
@Atazoth616: The fact that it was problem free for 11 months unfortunately means they are of merchantable quality.
"if they are not as fit for the purpose or purposes for which goods of that kind are commonly bought as is reasonable to expect, having regard to their price, to any description applied to them by the seller and to all other circumstances."
It's basically when they sold you the watch, could you use it for the things they sold it to you for. The fact that it is now broken isn't material to if it was of merchantable quality when sold.
@[Deactivated]: Be careful when providing advice as that information was misleading.
Watches that fail to perform wihin 12 months rises the question of merchantable quality.
Further, while I agree that merchantable quality (acceptable quality) does focus on the time the agreement took place.
S54 ACL states that a condition of a good being acceptable quality is being durable.
This is reinforced by the ACCC who state a good must be "safe, lasting, with no faults" in order to be acceptable quality.
So the issue for OP is how long a reasonable Australian consumer would expect a watch to last.
Given European laws (inquisitorial system) state that a reasonable consumer would expect a watch to last 24 months.
A refund within 12 months might be a reasonable expectation for a Australian consumer.
@Atazoth616: The problem is if the retailer offers to remedy it with a replacement you the consumer have the onus to prove that it's a major failure before you can get a refund. Obviously, you ARE entitled to the merchant's choice of repair/replacement however regardless of the type of failure.
Unfortunately, electronics do have a % that fail, even if otherwise 'durable'. It would come down to a question of what % of the product were shown not to be durable (eg, would the replacement also be likely to fail quickly).
Worldwide the longest period that can elapse where you can accept a refund is only 6 months. Even in the EU you only get a replacement. Their laws are better than the US (EU has min 24 months warranty). But I'd expect a watch to last well longer than that, and so be entitled to a replacement or repair for many years. I don't think a reasonable consumer would expect their money back, just a working product. The onus is on the customer to prove otherwise.
Absolutely, if they get a replacement watch and it dies in a few months, you'd have a case for the product being not durable. But note that if pushed to arbitration/court, the retailer 'could' examine the product and determine it has died due to misuse and seek costs from the customer for determining that. (ACCC vs LG).
Basically, it comes down to 'prove it'. Given a replacement or refund is offered, it's generally not worth a customer risking everything for a refund, particularly for a couple of hundred dollar product. Whether you agree with this or not, it just is.
@[Deactivated]: X
First:
Goods that are not of acceptable quality would constitute a major failure.
However, as you mentioned failure to be of acceptable quality only applies to goods under 6 months.
Second:
I always agreed that seeking a refund in OP's situation would not be worth the effort (devil's advocate).
Third:
Today out of curiosity, I asked a contract lawyer OP's question.
They stated the OP is entitled to a choice between a refund or a replacement.
Although, their advice should be taken with a grain of salt since lawyers tend to be more often than not wrong.
However, as you mentioned failure to be of acceptable quality only applies to goods under 6 months.
In Singapore (being the longest). Here it's typically 30 days. (It's a grey area if for instance you're buying something which you might not expect to use within that period of time)
Also, you'll find that HN have been required due to adverse prior judgements on ACL issues, to train all their staff on consumer rights. In this case, I'm sure they have a lawyer saying OP isn't entitled to a refund.
And I do believe you found a lawyer saying the opposite. Because guess who wins if it actually goes to court?
Also 'not of acceptable quality' would constitute a major failure, sure, replace where I said 'major failure' with 'not of acceptable quality'. The onus is still on the customer to prove it.
If a customer does actually win a case like this, I'd expect the law to change almost instantly. It's not sustainable for a business to offer refunds in this type of situation, given that they can basically pass a replacement cost up the line to the manufacturer, but can't do so for a refund. Especially since the ACL likely applies to a watch like this for at least 3 years. You can imagine driving a car that leaks water into the cabin for 6 months before returning it for a complete refund… It might cost $100 to repair but $100,000 to refund.
@[Deactivated]: The majority of information you provided has been misleading.
For example:
Here it's typically 30 days.
Where did you pluck this magic number?
Even six months is questionable.
Since, the period for a failure of acceptable quality under the ACL depends on what a reasonable consumer would consider.
Not, you or me.
But, a reasonable consumer.
Granted, ACCC references specific durations for a failure of acceptable quality.
However, these dates are not set in stone rather just examples and ranged from three months to thirteen months.
Not thirty days. Lmao.
And I do believe you found a lawyer saying the opposite. Because guess who wins if it actually goes to court?
That is unsound logic.
Are you under the assumption that only one contract lawyer exists in Australia?
That by stating OP is entitled to refund they have created a job for themselves?
Despite the fact the lawyer is anonymous and has no knowledge on OP's intentions on seeking damages through the legal system.
The lawyer certainly did not think I was going to court if that was your premise.
"sustainable for a business to offer refunds in this type of situation"
OP could be entitled to refund.
Be it sustainable or not it just is
However, OP should not seek a refund, since apparently everyone is expert on everything because they have access to the internet.
Hence, it will not be worth his time.
Note:
This is my last post on this matter since you are just a boy/girl with access to the internet and lack knowledge of the law.
Where did you pluck this magic number?
http://consumerlaw.gov.au/consultations-and-reviews/review-o…
Not, you or me. But, a reasonable consumer.
Relevant only in terms of if a remedy is required, not what the remedy has to be.
Granted, ACCC references specific durations for a failure of acceptable quality.
Again, you're confusing whether the product is required to be repaired or replaced, vs refunded. All the cases so far that have resulted in a refund specifically called out that the refunded product wasn't fit for purpose at the time of sale. (eg, never worked).
Are you under the assumption that only one contract lawyer exists in Australia?
No, that's not at all what I said. The contract lawyers for HN say they are right, a contract lawyer else where says they are not. You're trying to apply a general opinion to this specific situation. Remember HN have their own lawyers.
This is my last post on this matter since you are just a boy/girl with access to the internet and lack knowledge of the law.
It's great how you can say this with exactly 0 examples of cases that prove your point. You're dealing in a hypothetical and you're in no better of a position.
The lawyer certainly did not think I was going to court if that was your premise.
Not at all. I work closely with several contract lawyers on a regular basis. I know how malleable their opinions are with regards to the way the same question is asked. I'd accept this is their honestly held belief, given how you communicated the situation, with or without any influence in how it's asked, but it means nothing if it's not tested.
No reasonable consumer is going to expect that they can use a product 'for free' for 11 months and be entitled to 100% of their money back, even if the retailer is willing to remedy the problem instantly and freely and the problem is unlikely to reoccur. You have to have a really twisted view of fairness if you think that is what a 'reasonable' consumer would think.
you are entitled to a full refund
my fitness band perished just before the warranty expired and it got it exchanged.
happened again after two years (warranty resets after replacement), the second time I asked for a refund.
you have consumer rights
Warranties are different from ACL rights - but they can also work the other way in that you could be under a warranty still but already past the reasonable time for ACL rights.
I don't know in this case though - how much is a Garmin watch, and how did OP use it? ACL rights are a lot more finicky and depend on more factors. If I were OP, I'd take the replacement.
Refusing a refund as it's "almost out of warranty" is nonsense though.
Oh yeah I don't know where HN is going with that - that makes zero sense.
Edit: I think the logic might be: The ACL relies on reasonable timeframe, and HN is using the manufacturer's warranty period as an indication of what that reasonable time is. And then, because it's almost out of that period, a failure of the GPS module at this point does not, because it's so much later, constitute a major defect but only a minor one, which allows the shop to offer a repair or replacement (which they're doing).
Maybe. It's HN so who knows.
@HighAndDry: It's not major because it's the first failure, and it was clearly fit for purpose up until this point (the majority of the warranty period). If they can't fix it or replace it in a reasonable period of time, or it breaks repeatedly, it becomes major. But in OPs case, it is not yet major.
They're obligated to repair or replace, not refund, yet. Not unless they can't repair or replace, or there are issues which cause this model to fail early, often.
Refusing a refund as it's "almost out of warranty" is nonsense though.
They probably meant by this, that if it broke soon after purchase, they would refund. This might be their store policy also.
If you buy something, and it breaks the next week, of course, anyone would expect (and is reasonable) to get full refund no questions asked.
If you buy something, use it for 11 months, then it breaks, most people, would be happy with it being replaced with a brand new one, and this remedy seems reasonable and fair.
(warranty resets after replacement)
this is interesting. could you please provide a link so i may learn more about this?
Yeah I'd like to know about this too.
I had a Ryobi battery replaced just within the 2 year warranty time frame, they refused to provide a receipt and said the warranty is only from 2 years of the original purchase date.
It doesn't. As confirmed by former ACCC employee p1 ama in his AMA.
I remember, because I'd argued the same thing multiple times prior because everything from the wording of the legislation to common sense say that it doesn't reset - one purchase = one fixed set of ACL rights.
Good to have had confirmation after all this time.
true, explicitly expressed warranties do not necessarily reset with replacements (that depends upon their wording), but statutory consumer guarantees do
the former ACCC employee is not a lawyer but an economist and his/her views were of their own and not of the ACCC
their response focused on useable life, which is not mentioned in the ACL, rather than acceptable quality and major (or minor) failure, which are
this, though, has yet to be tested in court, and these issues were identified in the Australian Consumer Law Review (Final Report, Issues Paper)
@tonester: I remember you because last time you also posted a long rambling rant the sources in which were your own comments elsewhere.
@HighAndDry: it's good that you remember, but again it would be better to address the issues being discussed with words rather than just a negative vote, as you seem to have forgotten to do so :)
@tonester: For future reference, consider my neg shorthand for: "I have read your previous comments and do not wish to re-tread an old argument and that your linked comment is objectively incorrect."
@HighAndDry: thanks, appreciate the reply, it's the first time that you seem to have addressed my comment - how/why is it objectively incorrect?
@tonester: I've addressed that exact point - possibly not in reply to your comments - multiple times. ACL statutory rights arise on purchase of the product. Any relevant timeframes must then also run from that point - including how long the product is expected to last under the Consumer Guarantees - i.e. if you get a replacement, unless it's a second purchase with a now more recent purchase date, your ACL rights including the timeframes, do not refresh.
That's why, as DiSTURBED-oNE notes below, his was a special case as they provided a new invoice with an ostensibly new purchase date, which then resets both the warranty period and the ACL rights.
@HighAndDry: sorry for missing your comments elsewhere, but two wrongs do not make a right
receiving two defective products that together may last for as long as a good one does not negate them being of unacceptable quality initially
if it helps, any replacement would have dated documentation, so then under your opinion would have its consumer guarantee reset regardless
receiving two defective products that together may last for as long as a good one does not negate them being of unacceptable quality initially
But it does mean the consumer got the same usage as what they paid for, being one good one. The law is supposed to guarantee a minimum level of performance out of goods, not to deliver on consumers a freebie.
if it helps, any replacement would have dated documentation, so then under your opinion would have its consumer guarantee reset regardless
It's not "documentation" that triggers ACL statutory guarantees, it's a purchase. The legislation is clear on this point.
But it does mean the consumer got the same usage as what they paid for, being one good one. The law is supposed to guarantee a minimum level of performance out of goods, not to deliver on consumers a freebie.
ACL is to guarantee acceptable quality (amongst other things)
It's not "documentation" that triggers ACL statutory guarantees, it's a purchase. The legislation is clear on this point.
it's receipt of goods
@tonester: No, it's supply of goods, which per the ACL is:
supply, when used as a verb, includes:
(a) in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and
Note specifically it does not say, mention, or include "replacement". And in case you're wondering, no, re-supply refers to an ongoing agreement, not replacements (unless the replacement is also by way of (a separate) sale).
See, it's stuff like this which makes me want to just neg your comments and move on. If you're going to quibble on technicalities to do with wording, at least get it right and know what you're talking about.
Edit: Here's the actual text of the legislation. Go nuts, I'm done here.
https://www.legislation.gov.au/Details/C2017C00375/Html/Volu…
No, it's supply of goods, which per the ACL is:
true, I was being hasty, to avoid using purchase which might imply payment is necessary, but different sides of the same coin - goods supplied by supplier, received by consumer
Note specifically it does not say, mention, or include "replacement".
Section 264 Replaced goods
If the goods are replaced under section 261(c) or 263(4)(b):
(a) the replacement goods are taken, for the purposes of Division 1 of Part 3-2 and this Part, to be supplied by the supplier; and
(b) the provisions of Division 1 of Part 3-2 and this Part apply in relation to the replacement goods.
Edit: Here's the actual text of the legislation.
thanks, but in case you missed it, I provided a better link here :)
@tonester: That just means replacement goods are still covered by the original ACL consumer guarantees. Heck, even if you're right, the factors for determining what a reasonable time is include:
(3) The matters for the purposes of subsection (2) are:
(b) the price of the goods (if relevant)
Which for a free replacement (IF that counts as a separate supply) are $0, and so there is no way you could expect that the same reasonable time to apply as the original purchase.
When i was refering to this, it was in my specific situation with the retailer I was dealing with.
When I received my replacement I received a brand new invoice with new purchase date.
When I went to return the "replacmenet item" I supplied the new invoice.
The new invoice showed I purchased the item on a certain date for zero dollars.
^^^ In my case (and with many retailers who offer new receipts or invoices for replacement items) the warranty will reset as its a new purchase (replacement) date.
Thanks for the update.
…so we should ask for a new invoice for the replacement, if we don't get one, instead of them just noting down in the original invoice "replaced" and the date of replacement?
@Zachary: Yes, but they're not obliged to give you a new invoice - it's a replacement, you didn't pay for it.
@Zachary: Yes! It does, which is my point - the ACL says your rights depend on factors including price. And so if you paid $0, you get the level of ACL rights commensurate to that $0 price (i.e. not very much haha).
@Zachary: just as proof of purchase does not need to be a receipt or invoice, for replacements any dated documentation can sufficient, such as email correspondence or packing slip - as a last resort, the manufacture date could be traced via serial number
Show them the ACCC website and fight for a refund:
https://www.accc.gov.au/consumers/consumer-rights-guarantees…
"When you have a major problem with a product, you have the right to ask for your choice of a replacement or refund."
This is still minor unless that can't quickly repair or replace. Major is basically 'cannot be repaired' or 'will never be able to work as sold'. Eg. If you buy something that is dependent on an web service which is shut down, then your device will never be able to be repaired. So that would be a major fault. If they can just give you a new one, it doesn't matter what the nature of the fault is (it could be completely non functional) it's still a minor fault. It's only if it repeatedly has minor faults you can argue it's major. (Or there's something else you can argue, eg, the band gives you a rash).
OP's only recourse at this point is to try and push that the different colour offered is not the same as a repair / replacement. They will then have to either find one of the same colour, repair it, or refund.
Offering a replacement or a refund (albeit via credit) is saying to me that it is a major problem. Otherwise I'm sure they would send it off for repair.
The issue here is that the form of refund offered is not suitable and doesn't meet the requirements of the ACL, not whether it is major or minor. Neither of which allows HN to offer store credit as the product is 'almost out of warranty'.
OP said they offered a replacement of the same model, which is the same as a repair under the ACL. The store credit is 'above and beyond' what they need to do for a minor issue under the ACL, as a repair / replacement is all they need to do under the ACL for a minor failure (eg, any failure that occurs after 11 months would be minor on the first instance).
"They assessed and said I can either get a replacement or store credit."
Basically, by offering store credit they were being nice as the price of the unit may have dropped, or there might be a new model etc. OP can absolutely still decline the store credit and get an identical replacement if he chooses. A refund isn't required under the ACL unless they can't repair / replace or the issue isn't something that can be fixed by offering an identical replacement.
@[Deactivated]: Repair and replacement are different remedies under the ACL. They aren't 'the same'. They might be offered as remedies under the same provision, but that doesn't make them the same. Considering one of the defining features of a major fault is whether the item can be fixed, and there has been no attempt at repair (that we can see - and to be honest most of the time these items are designed to be cheaper to just replace than repair) leads to the argument the fault is a major' fault.
@SirFlibbled: You're incorrect, a replacement is the same as repair. (It's a repair of all parts). If you have to replace the entire product, it's still minor. If you replace it with another item and the replacement has 'fixed' the problem, it's minor. Replacement is a perfectly acceptable remedy to a minor failure, and indeed it's the businesses choice whether or not they repair, replace or refund in that instance.
The defining feature of major is that even a replacement wouldn't fix the problem, hence the consumers right to ask for a refund in that narrow case.
"A minor failure is something that can be fixed in a reasonable period of time. The supplier or service provider can offer you a refund, replacement or repair of a product or a re-supply of the service. These must be provided free of charge. If the seller refuses to fix the problem or takes too long you can ask someone else to fix the problem and ask for compensation from the seller."
A replacement is clearly allowed to be a remedy in the case of a minor failure, as this is. It'll become major if they can't replace it in a reasonable period of time.
@[Deactivated]: No, not incorrect. They are literally separate remedies. They mean very different things and cannot be used interchangably.
"A minor failure is something that can be fixed in a reasonable period of time. The supplier or service provider can offer you a refund, replacement or repair of a product or a re-supply of the service."
They're both applicable remedies to a minor failure according to the ACCC.. so I mean, if you think you know better, who am I to argue.
Just because they're offering a replacement doesn't make it major. If OP pushes for a refund they could easily decide that a repair is better for them, but they're being 'nice' by offering what seems to be easier for them and OP.
You want more:
Remedies for failures with goods……
If goods fail to meet a consumer guarantee, the supplier who sold the consumer the product may be required to:
• repair or replace the product
• provide a refund
• provide compensation for any consequential loss.When the problem with the goods is minor, the supplier can choose the remedy—either a repair, replacement or refund.
Is there some kind of semantic you're arguing? The supplier can choose a replacement, even if it can be repaired, even if it can't be repaired, as long as the replacement isn't going to have the same problem.
@[Deactivated]: 'Applicable remedies' is different to describing separate remedies as 'the same'. This isn't arguing semantics. In law, words matter. If you want to come off as someone who understands the law, you need to use the right words or your argument fails no matter how many things you copy and paste.
@SirFlibbled: Excuse me if the five hundredth time I've written this I didn't use the word you prefer. The result is the same. My position holds up in court, yours does not. We can argue about it infinitely but that won't change who is right.
You want to go back to it, you're saying a defining feature of major is that it can't be fixed, but that's only after multiple attempts to do so. It's more applicable in the case of cars, for which replacements aren't typically offered. In the case of consumer electronics, the retailer hasn't even attempted to fix before offering a replacement. The replacement is a superior remedy, so it's not going to be seen as a problem if you challenge it.
There's a couple of finder points in that if you're replacing you need to give notice if the device is capable of storing user data etc, but other than that, this is still semantics. The whole point is that OP isn't entitled to a refund if the retailer is able to replace it with an identical item. The rest is just arguing until you can nit-pick, which is a pointless waste of everyone's time.
@[Deactivated]: It's not the words I prefer, it's the words which are legally correct. Words are important in law. If you don't understand the basics, anything predicated beyond that is going to be flawed logic, or at the very least your argument is going to have no credibility even if you stumble upon the right legal answer.
If you want to argue "my position holds up in court" then you need to cite actual cases otherwise - no it doesn't.
@SirFlibbled: If you want to argue that it doesn't hold up in court, could you please cite actual cases?
I've looked really hard for a case that proves your point, but it doesn't look like anyone actually bothers to go to court over this. There are similar cases based off nearly identical laws in NZ (Nesbit v Porter) decided my way, but obviously, I've not referenced those. There are also other cases ACCC vs LG (the ACCC lost) which aren't quite the same because they're the manufacturer (It was found the LG were within their rights to charge for repairs, even though the customer would have been entitled to a free repair under the ACL….)
Even the cases that get a mention are only mentioned because the retailer is failing to offer a replacement.
Of the specific case where someone did get a refund, the court was satisfied the defect existed at the time the product was provided. (eg. it was never suitable).
You'll find that a replacement does satisfy the remedy when they're required to repair. The difference you're claiming isn't important in law. While words are important, the actual decisions are much more important.
It's not how the law works that you can claim a position doesn't hold up in court without testing it. Equally, I'd be fine that you claim yours will hold up. But again, there isn't any case where the exact difference between our opinions has been tested. So either retailers or customers are capitulating before it makes it that far. Given the risk/reward for the customer, my money is that when offered a replacement the customer is always capitulating provided the replacement is suitable.
We're really getting far off track. My position is basically, OP is entitled to a working watch. The retailer can choose repair, replace or refund as the period for rejection (and so being entitled to a refund) has passed (even for a major failure).
They are literally separate remedies. They mean very different things and cannot be used interchangably.
They absolutely can be used interchangeably in one direction (replacement in lieu of a repair). A repair can be by replacing certain components, and can include replacing every component - i.e. a replacement.
If it is a major defect and a replacement is required, the seller cannot repair it instead.
No reasonable person would by a device if they knew a key feature would fail with in the warranty period. It is the first dot point under 'What is a major problem?' on the ACCC's website.
Misleading your customer about their rights can lead to a civil penalty of $220,000 for you and $1.1 million for your employer. You can be fined the same amount criminally (page 10, Consumer guarantees, A guide for business and legal practitioners, available on consumerlaw.gov.au).
Yes, they would still buy it, providing they knew it would be replaced, for free under warranty. They wouldn't buy it if it failed in a dangerous way (eg Caught fire).
Electronic devices fail within warranty all the time, people still buy them. This is a rubbish argument. We don't live in a fantasy land where everything always works perfectly until the warranty expires or you wouldn't need a warranty.
I'm 100% sure I'm correct on this. I'd bet $1.1 million bucks on it.
@[Deactivated]: If it is a minor problem to have a key feature fail under warranty then the solution is at the suppliers discretion. The supplier would be a moron not to have it repaired for free by the manufacturer.
So you would buy a tv if I said:
Hi Bargs, please accept this new TV with a 24 month warranty. The tunner will fail in 18 months time, when we will need to send it away to our repair centre for two to four weeks leaving you with out a TV for that period.
And a phone with:
Please accept this bleeding edge phone. It to will fail within warranty and we will need it for two weeks (read a month) too. But don't worry Bargs, you won't go without. We will supply you with a lovely smart phone worth ~10% of your phone with none of it's features! You loved 2013 right!
Remember, don't argue. It is the suppliers choice now as it is truly a minor issue. They have informed you of the fault before sale! They choose repair. Oh, and they have to send it off to be assessed by the manufacturer as your local big box store doesn't have an onsite tech.
The idea of a voluntary warranty is to keep consumer confidence during the usual early failure period. Yes you will have random failures after this, and that is what Australian Consumer Law is for.
@This Guy: Quite a strawman argument here. He took it into the store and they offered to replace it with one identical on the spot. I've bought many a device that has died within warranty, I've taken it to the store I bought it from and walked out with a replacement or repair the same day. I've then gone and bought the next version when that came out, so clearly knowing that it has died hasn't affected my decision.
You can imagine in your scenario being told, any TV you pick from anywhere will fail in 18 months, but you'll get a new one within a week, ok? Do you still want a TV or are you going to stick with reading books?
We will supply you with a lovely smart phone worth ~10% of your phone with none of it's features! You loved 2013 right!
Utter rubbish. If you have to resort to marking this argument you've really lost. This isn't what has happened at all. In this case, OP could potentially upgrade and get a new one with more features.
It's more like, would you buy this watch, knowing in 11 months it will fail, and you can get store credit buy the later model! I'd be all over that in an instant!
If it is a minor problem to have a key feature fail under warranty then the solution is at the suppliers discretion. The supplier would be a moron not to have it repaired for free by the manufacturer.
The retailer likely wants to help OP solve this quickly by offering the fastest remedy, remembering that time to repair is a key feature before it becomes major (eg, if it will take them 4 weeks, you could argue Major then). They can then likely send the defective watch back to the manufacturer who may reimburse them with a replacement. For the manufacturer, the production cost is likely so cheap that the labor cost of fixing it isn't economical. That is the situation we're in with highly miniaturised electronics, they're cheap to make but hard to fix, unfortunately, a direct result of the fact that replacement is an acceptable remedy.
Voluntary warranties aren't worth anything except when they're above the warranty provided by the ACL. Which is almost never. Usually, they're designed to mislead you into thinking your warranty period is shorter than it is, or just copied from other countries where it is shorter. The only really valuable ones are ones which cover accidental damage.
Remember, don't argue. It is the suppliers choice now as it is truly a minor issue. They have informed you of the fault before sale! They choose repair. Oh, and they have to send it off to be assessed by the manufacturer as your local big box store doesn't have an onsite tech.
Ironically under the ACL if they did tell you that it would die in 18 months and they'd do nothing at all to fix it, they'd be well within their rights not to fix it. So…
The length of time it takes to repair when you're not told about it in advance, is material to whether it is major. Multiple minor repairs or one that will take a long time becomes Major. Offering to replace on the spot like OP received, doesn't satisfy the test for an 'unreasonable time to repair/replace'.
@[Deactivated]: I would not buy a product if I knew it would die in 12 months, even if it were to be replaced.
That's extremely inconvenient, and what if the product had non-transferable content on it?
Furthermore, what's to say the business would still be around? We're talking Harvey Norman here - a company that consistently sooks about online retailers taking their business.
@Bargs
Again, the remediation process does not determine whether the issue is major or minor.
"If a product or service you buy fails to meet a consumer guarantee, you have the right to ask for a repair, replacement or refund under the Australian Consumer Law. The remedy you're entitled to will depend on whether the issue is major or minor."
The issue is identified first, then classified as major or minor then the way it is remediated.
Right, but what do you think a minor issue is? If not having GPS between the time you notice it dying and showing up to the store to get it isn't minor, nothing is! There's no point in having a 'minor' issue classification if this doesn't fit.
I'm sorry but you have no basic understanding of how retail or law works. Just because you keep repeating it doesn't make it true. I'd love for it to be true, but it's not.
@[Deactivated]: I would argue a minor issue wouldn't affect the function of the device (cosmetic faults, etc.). A GPS device, of which the GPS is not working, is a major fault.
@SLY JD: Nah, a watch is a fashion item, a minor cosmetic issue would have to under this definition be a major fault. Anything would be. There's no point in putting a minor clause in there.
Direct from ACL
Remedies for failures with goods……
If goods fail to meet a consumer guarantee, the
supplier who sold the consumer the product may
be required to:
• repair or replace the product
• provide a refund
• provide compensation for any consequential
loss.
When the problem with the goods is minor, the
supplier can choose the remedy—either a repair,
replacement or refund.
When there is a major failure, the consumer can
choose to:
• reject the goods or services and either choose
a refund or a replacement; or
• ask for compensation for any drop in value of
the goods or services.
Yeah, they have to repair or replace if they can, failing that, and only failing that, do they have to refund. Thus doesn't qualify as a major failure.
WRONG. We believe it's a major failure then "the consumer can choose to:
• reject the goods or services and either choose a refund or a replacement; or
• ask for compensation for any drop in value of the goods or services.
WRONG.
A major failure is defined as (direct from the ACL):
it has a problem that would have stopped someone from buying it if they’d known about it (eg. It causes a rash or something like that)
it is substantially unfit for its common purpose and can’t easily be fixed within a reasonable time (eg. They can't replace/repair it)
it does not meet the specific purpose you asked for and cannot easily be fixed within a reasonable time (eg. They can't replace/repair it)
it creates an unsafe situation. (eg. It gives you an electric shock)
In this case it's worked fine for 11 months, so it's not a major failure unless they can't fix or replace it.
https://www.accc.gov.au/consumers/consumer-rights-guarantees…
@oscargamer: But the watch had it, and it worked for 11 months, it's a minor failure now and needs to be repaired. It's a major failure if the replacement still won't have the GPS function.
Major doesn't mean the failure is a significant portion of the functionality, it means it's unable to be repaired / replaced in a timely fashion. You misunderstand the meaning in this context.
If OP was sold a GPS watch, which never had a GPS working ever, and couldn't get it working, that would be a major failure for sure. That's the point of the thing. If the replacement also dies quickly, you could argue it's a major failure. But not yet.
@[Deactivated]: Sorry mate, but you are simply wrong.
The watch developed a fault in the 12m warranty period (which makes things simple).
If that watch had had that fault at the time of sale, the buyer (I guess - since he is complaining now), would not have bought it. That, by definition, is a major fault (as per the ACL)
You seem to think that the later the fault developed into the 12m period, has a bearing on this. It does not.
It absolutely does, once out of stat warranty, but not in it.
@oscargamer: I'm 100% certain that I'm correct. You can't just go getting a refund for something that dies in warranty if the retailer / manufacturer hasn't at least been able to attempt to repair or replace it.
The warranty period isn't relevant in this case because it's well within the expected life span of such a device.
You're arguing that the type of failure has a bearing on if it is major and minor, it does not. If the thing was completely dead, it would still be a minor fault, given it has worked for 11 months. The retailer still HAS TO repair or replace it, after 11 months, or I would argue even for a couple of years. It's only if they can't repair or replace, or they can't do so in a reasonable period of time, or they do so multiple times, that it becomes major. Absolutely if the replacement doesn't have a working GPS, it's Major. But the particular fault the defective unit has is immaterial.
The point of a major fault is to prevent consumers from getting repeated repairs, or being sold something that will never be fit for purpose. That it has been fit for purpose for 11 months is a strong indication that the device is CAPABLE of being fit for purpose, so a replacement would also be fit for purpose. About all OP has on his side for this is that they aren't offering one of the same colour. If the were, it would be open and shut, no further questions your honour.
I'm honestly curious as to what you think a 'minor' failure would be?
@[Deactivated]: I almost can't be bothered………….HOWEVER, just for you…..
The watch worked correctly when bought.
It has a 12m stat warranty.
It now does not work correctly.
It is within warranty.
The buyer is entitled to have a completely perfect watch for the 12m period.
HN said "I can either get a replacement or store credit." The OP added "The same colour is unavailable"
The OP is entitled to the option of a replacement watch (which HN cannot provide - wrong colour) or a repair (HN say that can't be done)…..so failing those options, the last option is a refund not a store credit
The OP is entitled to the option of a replacement watch (which HN cannot provide - wrong colour) or a repair (HN say that can't be done)…..so failing those options, the last option is a refund
Yeah, I was always on the same page re this. Indeed that's in my very first reply to your comment.
"Yeah, they have to repair or replace if they can, failing that, and only failing that, do they have to refund."
So dunno, this entire reply chain is because you didn't read that?
Your argument is over if this is major or minor? It's minor. They still have to repair or replace, and only refund if they cannot. It seems more like they offered the store credit because it was easier for them and OP, but if he doesn't like the colour he can push that line. The result may simply be that they source the right colour direct from Garmin instead of from store stock. It's not the OPs choice of the remedy.
@[Deactivated]: Your interpretation of major and minor differ from mine.
I say it is major, therefore the OP can choose the remedy.
You say it's minor.
As below, I say that the watch, in this post, "…can't be fixed…"
…..
Major failures in goods
Major failures in goods are those which can't be fixed or are too difficult to fix. The tests are:
A consumer would not have bought the goods had they known about the problem. For example, no one would be expected to buy a vacuum cleaner that falls apart after three months.
Goods are significantly different from their description, sample or demonstration model. For example, you need a lime green leotard for your end-of-year gymnastics performance but the online retailer sends you an aqua leotard instead.
The goods are unfit for their normal purpose or the purpose specified to the supplier, and can't be fixed in a reasonable time. For example, your new gumboots have a hole in the sole and can't be worn in the rain.
The goods are unsafe. For example, your new toaster sends out sparks when you switch it on.
What kind of fault? Minor or major?