How Exactly to Defend My Rights under Australian Consumer Law

LDrj55 on 18/01/2019 - 22:03
Last edited 18/01/2019 - 22:17 by 1 other user

Hi all

Looking for some collective wisdom on how to proceed with this issue. The TLDR of it is, once the retailer has refused to honour a warranty, how do I practically go about getting a refund?

The problem is the sun shade of my one year old Vuly Lift trampoline has deteriorated and is falling apart.

The Vuly was purchased on 20 Nov 2017 through an ebay shop for $799 (-15%), that has a physical shop in NSW.

As I understand it the trampoline was actually delivered straight from Vuly (not from the shop), which has a head office in QLD.

It was purchased using PayPal, linked to my bank Amex card (which has since been cancelled when the bank pulled all their Amex cards).

The shade cover was "a free promotional item", in that the Vuly Lift does not normally come with a shade cover, but is frequently sold with the cover as a freebie. The shade was actually one of the main attractions that led me to purchase the Vuly over their competitor.

The trampoline was erected on Christmas Eve 2017 by Santa.

The shade cover started to deteriorate and I put in a warranty claim on Christmas Eve 2018.

Vuly denied the warranty with the following response:

"Thank you for your time in filling out a warranty claim. Unfortunately, your shade cover is outside of the 3 month warranty period it has as you did receive this for free as a promotional item upon purchase.

We have since updated our shade covers to a more permanent design which is able to be left on the trampoline. As you are a registered customer, you are entitled to 50% off the new shade cover, which will have a 2-year warranty on it once purchased for."

The offer is to buy a supposedly new model shade cover for $125 (18% of original purchase price).

I have replied that I think the shade cover should last at least 12 months in line with their warranty on the net and matt etc and that it should be replaced under ACL. However, they responded:

"Unfortunately warranty periods are outlined in our terms and conditions which are fully compliant with Australian Consumer Law.

We have redesigned many products over time as to improve them, this is not just the shade cover.

If you are to purchase one of the new shade covers it will include a 2 year warranty period, even when bought with a 50% discount."

So where to from here?

Do I:

1 Apply to credit card for a charge back (note CC extended warranty is only if original warranty >6 months and has excess of $250)
2 Apply for help from Paypal, eBay or original shop I purchase through?
3 Complain to Consumer and Business Services in South Australia where I live?
4 Complain to Office of Fair Trading in QLD where Vuly HQ is?

Or something else?

And on a more expansive note - why does the Australian Consumer Law appear to give us certain rights but little recourse to apply them?!

Sports & Outdoors

Comments

  • chumlee on 18/01/2019 - 22:11
    +2

    From their response it seems like they have admitted the shade cover is not fit for purpose and changed the design to better do the job.

    You can complain to consumer affairs in your state. If no luck you will need to lodge a civil claim in small claims tribunal.

    These days it's cheaper to just leave negative reviews and move on

    • HighAndDry on 19/01/2019 - 00:22
      +3

      From their response it seems like they have admitted the shade cover is not fit for purpose and changed the design to better do the job.

      That's terrible logic. It would mean that no company could make design improvements without admitting that existing products are not fit for purpose.

  • Baysew on 18/01/2019 - 22:27
    +2

    What is the amount of you claim?

    • HighAndDry on 19/01/2019 - 00:23

      The shade cover was "a free promotional item"

      Lol.

  • ripesashimi on 18/01/2019 - 22:45

    I think your claim relies on whether a free promotional item has the same consumer guarantees as the main product. The section does not make this clear.

    Is the shade cover included in the same package with the trampoline? Also maybe something along the lines of 'the trampoline is not reasonably fit for purpose without the shade cover'. People bring up all sorts of arguments for these sorts of claims which normally do not involve lawyers so just stand your ground and quote ACL s55.

  • qwerty on 18/01/2019 - 23:07

    You have recourse - you can sue them

  • spackbace on 19/01/2019 - 00:16

    How much stress would you like to have over $125?

    • Drj55 on 19/01/2019 - 00:54

      Enough to write a few emails I suppose!?

      • spackbace on 19/01/2019 - 01:33
        +1

        That's the line you need to work out. Enough for a few emails, likely not enough for a day in court or to lose sleep over.

  • HighAndDry on 19/01/2019 - 00:20
    +6

    ACL entitled you to a replacement or refund. A replacement does not have to be provided if the seller has no stock.

    How would you like your refund of $0 to be credited to you?

    • Drj55 on 19/01/2019 - 01:01
      -1

      In my mind I bought a trampoline with a shade cover. Along the lines that a trampoline without the spring matt wouldn't be for fit purpose, I feel my trampoline without a cover is not fit for purpose. Therefore I would request a full refund.

      Just because some part of a package is called a bonus item does it mean it has no value and no warranty? Under ACL I mean.

      What about if you booked a room in a hotel that offered a free upgrade to a private spa room and then the spa didn't work. Are you entitled to a refund of zero?

      • HighAndDry on 19/01/2019 - 01:08
        +6

        I feel my trampoline without a cover is not fit for purpose.

        Your feelings don't really matter. A trampoline is perfectly functional without a cover, proven by the fact that this was an optional cover.

        • ibuy on 19/01/2019 - 07:49
          +2

          Agree. It will still work without a cover and it is not compulsory to use the cover.

        • Drj55 on 19/01/2019 - 08:48
          -2

          The basic function of the trampoline will work without the fabric walls and without the pads over the springs but it will not be as safe. In a similar fashion the trampoline is not as safe without the shade cover on a sunny day.

          A car will still get you from A to B without a roof but if the roof fell off would you feel you were entitled to a rememdy?

          • Ughhh on 19/01/2019 - 09:23
            +3

            @Drj55: The "roof" was free, something you would normally have to pay for and isnt vital to the manufactured purpose of the product.

            • Drj55 on 19/01/2019 - 10:10
              -1

              @Ughhh: The cover was what differentiated the vuly trampoline from its competitor and was one of the main reasons for the purchase. I see the price of the product to include all parts of the delivered product.

              What about another analogy? You purchase a car with "free" upgrade to metallic paint. After 12 months the paint has worn off and bare metal is visible.

              The paint was "free" and not vital for the purpose of a car, but will lead to rust and lower the resale value. Any recourse here?

              • Ughhh on 19/01/2019 - 10:18
                +2

                @Drj55: Your paint analogy isn't even comparable. Paint is vital and comes with every car, metallic paint however is not. If you managed to make the paint wear off in 12 months to the point of bare metal, you're doing something wrong.

                As many said, you can use the trampoline without a shade. It doesn't become faulty without it. The trampoline only needs to fit the purpose it was designed for and advertised as, doesnt need to fit your personal purpose (unless it was guaranteed to you by a rep).

  • Drj55 on 19/01/2019 - 01:03

    Does anyone have any experience with option 3 Complain to Consumer and Business Services in South Australia?

    Will they arbitrate or mearly give advice?

    • whooah1979 on 19/01/2019 - 01:29

      CBS may not have powers to compel an entity in Qld to provide a remedy for a free good.

      • Drj55 on 19/01/2019 - 10:11

        Yes I wonder about this

  • Gotchas on 19/01/2019 - 06:39
    +1

    You have no recourse unless you go to the tribunal. Most business will contact you to settle before court and that’s when you ask to include tribunal costs

    (Most arm chair experts believe you are magically covered by quoting ACL)

    Facebook/Twitter reviews also gets their attention sometimes

  • ibuy on 19/01/2019 - 07:45
    +1

    You need to check the warranty periods in the terms and conditions.

    Different parts can legally have different warranty periods due to wear and tear. This is regardless of whether it is free or costs something. For example, you can buy a cheap car cover that may last a few months or you can buy an expensive one that may last a few years. Both do the same thing but may have different warranty periods.

    No different to when you buy a car. Some parts of the car may have five years of warranty, others have twelve months or less. And with cars it can also depend on whether it is for personal or commercial use.

    You may also need to check whether there were any warnings or notices about the cover. It may have advised that the cover is not to be left outdoors indefinitely and needs to be removed and stored when play is complete.

    Seriously though for $125 why do you want to go through all the hassle. You’re burning up the electric bill, computer resources, time writing and reading feedback that you could spend with the kids/family, do something more productive/positive. The most valuable thing we have in life is time. Once you have used that time you can’t get it back. No money buys back time lost. If you’re that upset over it as others say the best way of getting attention is social media. However note that social media is a double edged sword. If in general most people believe you’re going overboard on the issue for little gain then they will let you know and it could backfire on you as you’d be viewed as a nagging crazy person over such an issue - no matter how big you believe it to be. Compare say someone who has a $5,000 car accident vs a $125 cover. If the cover had been damaged in a storm you’d probably just replace it and move on.

    • Drj55 on 19/01/2019 - 09:14

      The cover is 3m from the ground and connected at 7 points so would certainly be a challenge to take on and off.

      I think it's pretty poor form to offer an outdoor shade cover, even if it is a promotion, knowing it is made of the most substandard material. Read product reviews to find it's a common problem. I know Australian conditions are harsh but plenty of other fabric sails and umbrellas manage to last more than a year outside.

      I think I'll write an email to to CBS to see what they can do for me and then I'll hug the kids!

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