Consumer Law

The pitfalls of not having terms & conditions

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What are some of the pitfalls of not having terms and conditions? We hear many risky stories of companies going without terms and conditions altogether or using terms and conditions that do not belong to them and were not tailored to them.

Here we explore just some of the risks of not having terms and conditions.

1)     Payment terms: clarity on when fees and payments are due, how they are to be paid and interest charges and other feesIf it’s not clear what is included and what is excluded, you run the risk of missing out on being able to charge for (and recover cost) for goods and services provided.

2)     Risk allocation: first and foremost, terms and conditions serve to be a risk allocation document that set out the risks relevant to your goods and services and which party will bear each risk and in what circumstances.  Chances are if you don’t have terms and conditions or don’t have properly drafted terms and conditions, you’ve allocated yourself more risk than you bargained for.  For example, what time frames do you accept? Who runs the risk of timing of decision making and instructions of your client or customer? If they don’t respond in the right time frame, does your timeline or deadline push out or do you wear the risk of delayed instructions or delayed client/customer decisions?

3)     Dates: when the agreement starts and finishes.  The date that the services of goods will be provided… All key milestone dates.  These are just some of the things that are covered by well drafted, terms and conditions.  Having certainty around dates minimises the scope for a frustrated customer or client and makes it clear, upfront, what everyone has agreed to.

4)     Exposure to warranty claims: without terms and conditions, you are missing out on clearly prescribed warranty terms that make it clear to any clients, hirer or purchaser, just when you are on the hook for a warranty claim and, more importantly, when you are not on the hook for a warranty claim.  These need to fit within the legal requirements.

5)     Scoping inclusions and exclusions: good terms and conditions make it clear precisely what is included in your scope, your quote or fee and, importantly, what is not included in your scope, quote or fee.  By having certainty around inclusions and exclusions, you may avoid a claim that further goods or services were included in the original scope, quote or fee, for example.

6)     When you are on the hook, and when you are not: good terms and conditions make it clear what you will be responsible for, and the things and actions that you are not responsible for.  Typically, you will not be responsible for any use of your products or services outside of their intended purpose or scope.

7)     Title and risk: for the sale of goods, this refers to when title and risk passes to the end consumer.  For the hire of goods, this refers to when risk in the good hired passes to the other party.  These both make it clear when the other party is on the hook (and, more importantly, when you’re off the hook).

8)     Fees: good terms and conditions would make clear all components of your price or fee.  This includes additional fees such as bond or delivery, fees that apply if things go outside the scope or outside of time.  Having clearly expressed fees can make it easier for you to recover those fees.  This is particularly important for scope increase and to ensure that you are protected for your fees for any such “scope creep”.  Failure to have clear terms and conditions surrounding your fees may mean that you are required to pay for disbursements or extra fees that haven’t been properly disclosed to the customer, or, the customer not having to pay for certain additional services that weren’t disclosed upfront in your terms and conditions. 

 For tailored terms and conditions that properly address risk and allocate risk between the parties, Coutts is here to help.  For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

“Lemon” motor vehicles – consumer rights clarified

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On 8 September 2018 the Australian Consumer and Competition Authority (ACCC) published an updated guide in relation to the application of the Australian Consumer Law (ACL) to motor vehicle sales and repairs. Although this publication does not constitute legal advice or a definitive guide as to when the ACL applies, it does provide some useful legal guidance for consumers in respect of defects and failures in new and used motor vehicles.

A link to the guide can be found here.

Overview

On 1 January 2011 the ACL was introduced as a uniform consumer protection law across Australia. As the law is relatively new, there is a measure of uncertainty in relation to parts of its practical operation - hence the publication by the ACCC of the above guide.

The ACL prescribed a set of “supplier” and “manufacturer” guarantees which apply to all consumer transactions across Australia.

Major and non-major failures

Under the ACL, where there has been a breach of one of the prescribed guarantees, the remedy to which a consumer is entitled, depends on there has been a “major” or “minor” failure to comply with the consumer guarantee. These are concepts new to the law in Australia.

If a vehicle suffers from a “major” failure, then the consumer is generally entitled to elect to:

  • reject the vehicle and obtain either a full refund or replacement vehicle of the same type; or

  • retain the vehicle and ask for compensation from the dealer or manufacturer.

If a vehicle suffers from a “non-major” failure, then the supplier has the option of repairing the vehicle or providing a replacement or refund to the consumer. A “non-major” failure can become a “major” failure if the vehicle cannot be repaired within a reasonable time

In addition, the consumer may be entitled to compensation for any foreseeable loss suffered by the consumer as a result of any breach of the ACL guarantees.

What are “major” and “non-major” failures

The ACL prescribes a “major” failure as occurring where:

  • a person would not have purchased the product had they been aware of the failure;

  • the failure results in the product being significantly different from a sample or description;

  • the product is substantially unfit for its purpose and cannot be effectively repaired within a reasonable time; or

  • the product is unsafe.

A “non-major” failure is a failure which does not amount to a “major failure” as defined above.

Clarification as to “major” and “non-major” failures

Since the introduction of the ACL there has been a lot of uncertainty in the motor vehicle industry as to when a defect will amount to a “major” defect - particularly when the vehicle is no longer new. Given the infancy of the ACL, there have only been a handful of cases which have considered the application of the ACL in the context of defective vehicles. Hence, the publication of the guide by the ACL provides some measure of clarification to the industry and consumers alike.

Examples of “major” vehicle failures

The ACCC guide sets out the following examples which it considers to amount to “major” failure of a motor vehicle:

  • a manufacturing defect in a new vehicle causing excessive noisiness in the vehicle resulting in multiple repairs (exceeding 5 weeks) which did not see the issue resolved;

  • a 2 year old vehicle suffering from a manufacturing defect causing the engine and vehicle to seize with the vehicle not be able to be repaired within 5 weeks.

Examples of “non-major” vehicle failures

The ACCC guide sets out the following examples which it considers do not amount to a “major” failure of a motor vehicle:

  • a new vehicle which had developed a rattling noise and which did not interfere with its normal operation and which was repaired within 2 days.

  • an 18 month old vehicle with an intermittent electrical fault causing a warning light to activate from time to time. The cause of the problem could not initially be diagnosed and resolved until the third attempted repair;

  • a 3 year old vehicle which had suffered from the following issues and which were repaired on separate occasions - an interior trim coming loose, the satellite navigation system developing a glitch and the boot latch breaking.

Key Take-Aways

The ACCC guide provides some clarification as to what will constitute a “major” and “non-major” failures in the context of motor vehicles. However, the examples provided by the ACCC are reasonably clear-cut and we must await for further cases to be decided in the State and Territory consumer tribunals before more valuable guidance can be given in relation to more borderline cases.

 

We have experience in motor vehicle claims and can help if you are dissatisfied with the performance of your vehicle.   For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What Do The Different Types Of Property Ownership in NSW Actually Mean?

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Whether you are buying your first home or a commercial investment property, it is important to have an understanding of the more common forms of property ownership used within New South Wales. Different title types have regulations unique to their form and can have varying charges attached to them. Knowing the difference can assist you to make an informed choice before buying property.

 

Torrens Title

Torrens Title is the most common form of property ownership in New South Wales. Also referred to as Freehold Title, this system of ownership was introduced in 1858. Torren Titles are registered with the state government and providing there is no mortgage on the property, the land is completely owned by the persons registered on the Certificate of Title (also known as a ‘Title Deed’). If there is a mortgage on the property, the mortgagee generally holds the Certificate of Title as security until the loan is paid. Your name as the owner will appear on the Certificate of Title but the mortgage will also be registered here to show the interest the mortgagee has in the property.

 

Old System Title

Property ownership of this kind dates back to when New South Wales was first colonised in 1788. Because Australia was colonised by the English, the system used to track property ownership also came from England. Old System title uses a system of registration that uses a separate document every time the land is purchased by another party. As the number of transactions in relation to the property increases, so does the number of documents attached to the title of the property. This way you can see the paper trail of how the property has passed between people. It is very common for Old System Title documents to go missing because of this. Like Torrens Title, owners of Old System Title own the interest in the land completely. It is now uncommon to own property this way as it has been replaced by Torren Title however, it is still possible.

 

Strata Title

Strata Title is very common when looking at apartment blocks, units and town houses. Owning a property under a strata arrangement generally means that you only own part of a building and have shared interests with other owners of the strata complex in regards to common property such as gardens or stairwells. For example, with a unit, this means that you generally own the inside of the unit but not the outside walls or fixtures as they are generally deemed common property. It is very common for strata properties to be run by a strata management company who control the upkeep, maintenance and finances for the common areas. If you purchase property that is a Strata Title you will generally be required to make quarterly payments into the sinking fund and administrative fund for your share of the common property on a continuous basis.

 

Leasehold

Leasehold arrangements generally apply to government owned land. With this type of arrangement, you do not own the property outright but instead lease it for an extended period of time, generally 99 years. As the lessee, you will be entitled to occupy the land for that entire period. When entering into this arrangement, there is an initial cost for the Leasehold arrangement (negotiated between the parties) as well as annual rental payments. Terms and conditions for Leasehold agreements vary.

 

Community Title

Community Titles are most often used for large development lots and for gated estates. It has some similarities to Strata Title but generally it is the property owners that are jointly responsible for maintaining the properties. Instead of a strata company, there is often a residence committee or a manager that ensures the upkeep of the property. Community Title schemes generally maintain their own roads, gardens and garbage facilities (including collection). Whilst Community Title owners still receive service from their local council, they are often limited. Buying into a Community Title arrangement, like Strata Title systems, require continuous payments in order to account for your share of the upkeep. 

 

When purchasing property under any of these schemes, it is important to speak to a conveyancer or lawyer with Property Law experience to help you understand the complexities and requirements under each kind of title. If you need further information or assistance please contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Are you aware of your rights when purchasing a new car?

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A recent ACCC market study into the new car retailing industry shone a light on the fact that consumers are not adequately aware of their automatic rights under the Australian Consumer Law when purchasing a new car. In response to this, the ACCC has published the “Just bought a new car?” fact sheet.

This fact sheet outlines guarantees that all consumers that purchase a new car are entitled to, including the remedies that are available to a consumer in the event their new car is faulty or experiences a failure. Car failures are categorised in the fact sheet between “major failures” and “minor failures” and describe the types of remedies available to consumers based on these two categories.

Consumers can expect to receive this new fact sheet from new car dealers when purchasing a new car.

This fact sheet will also be useful for new car dealerships and their employees as a way to become more informed as to their obligations owed to their consumers under Australian Consumer Law.

The “Just bought a new car” fact sheet can be found here.

If you have any issues with your new car, we are here to help. Additionally, if you are a car dealership, we can advise on recommended practices compliant with the Australian Consumer Law.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

GUEST BLOG: How using Afterpay and other 'buy now, pay later' schemes affect your mortgage application

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What does "Afterpay" really mean for me in the long run.

With the Royal Commission and tightening of lending policies, we are going to see a very different lending landscape in Australia.  Unfortunately a lot of people including our first home buyers are not aware of how all these new products where you buy now and pay later, may actually mean they will pay later by losing their opportunity to have the Australian dream of buying a home one day... I have invited Andrew Evans of Mortgage Guy to explain what buying products with "afterpay" really means for their credit rating....  I will be inviting our close working partner advisors to share their intel with our readers over the next couple of months.

Introduction written by Adriana Care, Managing Partner, Coutts


Ever seen that must-have-now item that you don’t have the cash for right now? What if it was four equal instalments? Interest free payment app, Afterpay[AE1] , is taking the retail space by storm because it allows shoppers to get what they want now and worry about paying for it later.

Afterpay has seen dramatic growth over the last few years with more and more retailers coming on board. With even Jetstar joining the party for domestic flights[AE2] , it’s getting easier than ever to buy now and pay later.

But what are the down sides? According to this article on ABC News, Afterpay made over $28 million in late fees [AE3] from when its customers miss a payment. Make sure you don’t contribute by paying on time.

However, now that you’ve got your eye set on that amazing home, Afterpay might have some unexpected impacts.


Your credit file

Everyone who applies for the ever-necessary home loan will have their credit file checked by the home loan lender they apply to. The lender will look for black marks such as defaults and more recently repayment information on your existing financial commitments[AE4] .

All this information is used to determine a credit score – a magic number that decides whether the lender will loan you money, or not.

Will Afterpay appear on your credit file and affect your credit score? Probably not, but it is certainly possible. Currently, Afterpay does not appear to do credit enquiries which means it shouldn’t affect your score every time you use the service.

However, the Afterpay T&C’s [AE5] do give them permission to put credit enquiries on your file and to report “negative activity … (including late payments, missed payments, defaults or chargebacks)” to the credit reporting agencies. If you end up behind on your payments you could find yourself in the credit score badlands. As a mortgage broker, I have seen loans declined purely based on having too many enquiries on their credit file.

The best thing you can do if you must use Afterpay is not over use the service and keep an eye on your credit file [AE6] which you can do for free, once per year.


Your expenses

The other potential impact from using Afterpay is on your living expenses. Living expenses is a huge focus [AE7] now and it’s all about ensuring lenders have an accurate idea of how much you’re spending of day to day costs plus of course, splurging on smashed avocado on toast[AE8] .

The home loan lenders are still figuring out how they handle Afterpay. They can’t treat it like a credit card because it only lasts four payments. Many have settled on including it in your living expenses. With most banks requiring bank statements on all accounts (and some up to 4 months!) they are going to see your Afterpay payments and want to take it into account. A heavy Afterpay user with lots of large payments (like for domestic flights) is going to have an undesired impact on their borrowing power.


What about how it looks

The other intangible downside is that it just doesn’t look great to a home loan credit officer. Some home loan credit assessors perceive Buy now, Pay later services with negative connotations. When you’re trying to buy that dream home the last thing you want is for that 75” flat screen that you Afterpay’d to cause a decline.


So, what should you do?

I have plenty of customers using Afterpay and still getting home loans. However, I have also seen extra focus put on deals with these payment services. A bad credit score is something to be avoided.

The key to everything is moderation. Here are my top tips for being able to get that house:

  1. Don’t be lured into purchasing something you can’t afford. Even if it has a payment plan.

  2. Only use the Buy now, Pay later services when you need to and ensure you can pay it off comfortably without incurring late fees. Or better, use a service I call Save now, Buy later – it’s free!

  3. If you’re in trouble, the worst thing you can do it ignore it. Be open and talk to the lender – you will have a very different conversation that if they have to chase you up. There are also financial counselors available to help[AE9] .

Article written by Andrew Evans, Broker for Mortgage Guy

If you are planning on buying or selling a home, we can assist with all your conveyancing needs. For information and advice on mortgages, our team can pass on your details to Andrew Evans.

Adriana Care
Managing Partner
adriana@couttslegal.com.au
1300 268 887

References:

 [AE1] https://www.afterpay.com/en-AU/how-it-works

 [AE2] https://www.jetstar.com/au/en/afterpay

 [AE3] https://www.abc.net.au/news/2018-08-24/afterpay-late-fees-24pc-income-asic-loophole-credit/10156902

 [AE4] https://www.canstar.com.au/credit-score/what-is-positive-credit-reporting/

 [AE5] https://www.afterpay.com/en-AU/terms-of-service

 [AE6] https://www.mycreditfile.com.au/products-services/my-credit-file

 [AE7] https://www.smh.com.au/business/banking-and-finance/apra-pressures-banks-over-customers-living-expenses-claims-20180530-p4ziet.html

 [AE8] https://www.news.com.au/finance/money/costs/avocado-toast-mortgages-have-gone-global/news-story/0e691bfafc89e2d1511a7cbdfd074e9c

 [AE9] https://www.financialcounsellingaustralia.org.au/Home

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Two businesses in hot water for claiming products were made in Australia

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The Australian Competition and Consumer Commission (ACCC) has recently targeted two businesses for misleading consumers.

 

Firstly, Ozwear Connection (Ozwear) created a false impression by making misleading representations to consumers.  Between January and April 2018 Ozwear suggested its ‘Classic Ugg’ footwear range were ‘100% Aussie owned’ and made using ‘the best materials available in Australia’.  The footwear even had a tag in the shape of Australia which stated, “this exclusive premium label is uniquely Australian owned brand for authentic Australian Ugg boots”.

 

It turns out the footwear was actually made in China, and therefore Ozwear was misleading consumers.  The ACCC considered that “Country of origin representations can be a powerful marketing tool for businesses, as many consumers are willing to pay extra for Australian made products.”

 

Ozwear was hit with penalties totalling $25,200.00 and the ACCC has stated that “Businesses are warned that making misleading claims or representations about a product’s country of origin will attract ACCC scrutiny and enforcement action.”

 

Secondly, Birubi Art (Birubi) breached the Australian Consumer Law by claiming its products were made in Australia and hand painted by Australian Aboriginal persons.  This was incorrect. Despite the products being made in Indonesia, between July 2015 to November 2017 Birubi sold over 18,000 products using words such as ‘Aboriginal Art’, ‘Genuine’ and ‘Australia’. 

 

Now that a verdict has been reached, a hearing will be held to determine what penalties should be imposed on Birubi.  The ACCC stated: “The ACCC will not hesitate to take further action against traders who mislead consumers about the nature of their products, in order to ensure confidence in the Indigenous Australian art industry”.

 

It is evident from these two recent cases that breaches of Australian Consumer Law will attract the attention of the ACCC and penalties are likely to follow.  Section 18 of the Competition and Consumer Act 2010 (Cth) covers misleading and deceptive conduct.  It states that ‘a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.’

 

This makes it essential for businesses to examine their processes, products, representations and advertising to ensure they are not contravening Australian Consumer Law. 

 

At Coutts, we can assist you with understanding and complying with the requirements of Australian Consumer Law including to update your terms and conditions, provide legal advice on your disclaimers or your marketing material.  Please do not hesitate to contact us if you have any enquiries.

For further information contact:

Rebecca Watts
Lawyer
rebecca@couttslegal.com.au
02 4607 2148

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Be Aware Of Your Rights As A Consumer

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Have you purchased a faulty product and the supplier has refused you a refund because the manufacturer’s warranty has expired?

Does your new motor vehicle need to go back to the dealer for constant repairs?

Is the supplier trying to avoid responsibility for product faults by shifting blame to the manufacturer?

In circumstances like the above, it is important to know what your legal rights are - and what steps to take next.


The Australian Consumer Law

The Australian Consumer Law (the ACL) came into force in 2011 and introduced a uniform law for consumer transactions throughout Australia.

Under the ACL, a “consumer” is a person who acquires:

  • any type of good or service costing up to $40,000 (this amount will likely be increased in the next few years);

  • a good or service which is normally used for a personal, domestic or household purpose (without any upper monetary limit on the purchase price); or

  • a commercial road vehicle used mainly for the transportation of goods.

Courts have interpreted the words “personal, domestic or household purpose” broadly and therefore the ACL will apply to goods such as luxury motor vehicles with a purchase price over $40,000 - even if they are subsequently used in a business. The ACL will also apply where goods are leased or obtained via hire purchase.

The consumer protections contained in the ACL will generally not apply to products purchased from one-off sales by private sellers (for example, at a garage sale or school fete), products purchased at an auction or products purchased for re-supply or for use in a manufacturing process.

 

Consumer Guarantees in the ACL

The ACL prescribes various “consumer guarantees” for the supply of goods, including that goods: 

  • are of acceptable quality (i.e. goods must be acceptable in appearance and finish, free from defects and faults, safe and durable);

  • are fit for any purpose which the purchaser made known to the supplier;

  • match their description (for example, as contained in an advertisement or a statement made by a sales representative);

  • match any sample or demonstration provided by the supplier (for example, a motor vehicle test drive or a display product); and

  • are free of any hidden security interests, charges or rights of third parties.

  • It is important to remember that:

  • the consumer guarantees prescribed by the ACL cannot be excluded or modified by the supplier -  i.e. they set a minimum legal benchmark for all consumer transaction. Significant financial penalties have been imposed on companies that have made statements in their contractual documentation, advertising or product labels inconsistent with the ACL consumer guarantees;

  • the consumer guarantees are not in any way limited by the terms of a manufacturer or supplier warranty; and

  • the consumer guarantees apply to the sale of second hand products and also to all repair works performed by the supplier or manufacturer, including the installation of replacement parts.

  • The ACL also contains similar consumer guarantees in relation to the supply of services.

Remedies available

The ACL introduced a new suite of remedies for consumers where goods fail to meet one or more of the consumer guarantees.

Where the fault with a product is regarded as a “minor failure” then the supplier has the right to choose whether to either repair or replace the product or to provide a refund of the purchase price.

Where the fault with a product is regarded as a “major failure” then the consumer has the right to choose whether to either reject the product and receive a full refund or replacement product - or keep the product on the basis that it is repaired.

It can often be difficult to determine whether a fault amounts to a “minor” or “major” failure and consumers must be careful not to reject goods for a fault which may not amount to a “major” failure. Factors to consider include the nature, seriousness and number of fault/s, when those fault/s arose, whether the fault/s can be easily and quickly repaired, the nature and price of the products and whether the fault/s create any safety issues (for example, a defective vehicle engine).

Consumers must also be mindful that their right to reject a product suffering a “major” failure can be lost in certain circumstances. For example, where the goods have been destroyed or damaged, where the goods have been permanently attached to other property or where too much time has elapsed from when the product was first purchased and/or when the fault first arose. 

It may also be possible for consumers to obtain compensation from suppliers where loss has been caused by either a minor or major failure. For example, the cost of hiring a replacement vehicle during a lengthy repair process. However, not all ancillary loss will be compensable - only loss which is reasonably foreseeable.

Claims against the manufacturer

A consumer may also have a direct right to claim against the product’s manufacturer. This could be crucial where the supplier has disappeared or gone into liquidation - or is not being responsive to your communications.  In most cases, the manufacturer will be a large multi-national company with an Australian subsidiary and will have processes in place to deal with consumer claims.

The ACL prescribes that the following “consumer guarantees” apply to manufactures:

  •  that their goods are of acceptable quality;

  • that their goods will satisfy all descriptions made by the manufacturer; and

  • that they will take reasonable steps to provide spare parts and to make available repair facilities for a reasonable time after the purchase of their products.

However, a manufacturer will not be liable for faults to goods caused after they have left the manufacturer’s control (for example, if the product is damaged on the shop floor).

The ACL does not provide a right for consumers to obtain a refund or replacement product directly from the manufacturer - however consumers can seek compensation directly from a manufacturer for any decrease in value of the goods or any ancillary loss suffered by the consumer. In many cases, manufacturers may agree to provide a full refund or replacement product if the product is returned – even where there is no express manufacturer’s warranty or where it has expired.

Summary and Tips

  • many consumers are unaware of their rights under the ACL and wrongly believe that their rights are limited to the terms of the manufacturer’s warranty;

  • when problems develop with products it is important to act quickly and keep all relevant communications  in writing;

  • obtain photos and video recordings of the faults (with dates);

  • insist on obtaining documentation describing the nature of all repairs performed and the installation of any replacement parts;

  • consider carefully whether there may be a “major failure” and whether you have a proper basis to reject the product;

  • consider whether to make a claim directly on the manufacturer;

  • put the supplier and manufacturer on notice of any ancillary loss being caused by the faulty product and keep documents to prove the amount of such loss.

At Coutts we can assist you with any difficulties you are experiencing with faulty products such as motor vehicles, boats, computers and electrical goods.

For further information contact:

Daniel St George
Senior Associate
daniel@couttslegal.com.au
1300 268 887

Retirement Villages – Helping You To Make Informed Decisions

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Moving into a retirement village is not an investment choice, it is a lifestyle choice and can be a very exciting time. Living in a private and secure environment with people of a similar age are just some of the reasons why the move may be a positive change for you. However like any other major life decision, there are a great many things to consider before signing an agreement. From a lawyers perspective, Carrie outlines some of the things you should think about when considering moving into a retirement village.

 

What is a retirement village?

A retirement village is a residential complex where the people that live there have entered into a contract with the operator of the village, either to live in the premises and/or to receive other services that may be available. It is important to remember that support services and facilities available in villages can differ depending on the provider and you should visit multiple providers to find what best works for you.

 

Within the retirement village framework there is a variety of accommodation types available including:

  • Self-contained premises for people who are able to live independently;

  • Serviced living arrangements (also known as assisted living apartments) which also provide cleaning meals and other needed services; and

  • A mixture of both which allows those who live there to take on services as the need arises.

 

What laws apply to retirement villages?

In New South Wales the main legislation that applies to retirement villages is the Retirement Villages Act 1999 and the Retirement Villages Regulation 2017. It is important to note that this does not include or cover nursing homes. This legislation sets out what is required of the operators and the rights of the residents, what information should be provided to people interested in living within their facilities, explain how and when the contract can be ended and set out the process of entering into a village contract.

 

Types of village contracts

In New South Wales there is a variety of contract types used by retirement village operators to engage new residents and manage their facilities. Some of the contractual arrangements used are:

  • Loan and Licence Arrangements – this option is generally used by not for profit organisations such as a church that owns a village. In these circumstances you pay a contribution going in to the facility in the form of an interest free loan in return for the right to occupy the premises. You may also pay recurrent fees. You do not own the unit or have a registered interest in these arrangements;

  • Leasehold Arrangements – this is where the operator owns the residential property and you as the resident lease the property. The lease is registered on the title deed which provides you with some extra protection if the retirement village is sold. The amount you pay depends on the village you choose and the market. When you leave you may be required to pay a departure fee;

  • Strata and Community Schemes – this type of arrangement has many similarities to standard strata schemes where you will be a member of the owners corporation or community association and be required to pay levies to cover the cost of managing the property. However, unlike these schemes, you will be required to enter into a service contract with the operator before you can move in; and

  • Company Title Schemes – Some, although very few privately run villages may also use this scheme. The village is owned by a company and instead you purchase shares at market value which in turn give you the right to occupy the premises. A Board of Directors which are appointed by the shareholders run the village.

 

Things you should consider

There is a variety of things you should consider before entering into an agreement with a retirement village. Some of these include:

  • Seek expert advice from a lawyer before making a commitment. A solicitor can go through the contract, explain your rights and requirements of you if you choose to enter into an agreement with a retirement village;

  • Think about the type of village you want to live in and what you can afford on a continuing basis;

  • Visit the village and get a feel for the culture of the community to make sure it is a place you are happy to live; and

  • Read and understand the policies of the village on guests and pets look into the health and lifestyle programs available at the facility.

 

You are more likely to make a decision that suits your needs and lifestyle choices if you are well informed and seek advice from the very outset of your journey into a retirement village.

 

If you need further information or assistance in navigating your rights and responsibilities or understanding the contract please contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

New NSW Road Rule: Slow Down To 40km/hr For Flashing Lights

Photo source: https://www.facebook.com/nswpoliceforce/videos/slow-down-to-40/546373149125918/

Photo source: https://www.facebook.com/nswpoliceforce/videos/slow-down-to-40/546373149125918/

From 1 September 2018, drivers in New South Wales could face a fine of $448.00 and three (3) demerit points for exceeding the speed limit of 40 kilometres per hour whenever they pass an emergency vehicle that is stopped on the side of the road and flashing their blue and red lights. Drivers will also have to give way to any person who is on foot near the area of the emergency vehicle which is flashing their lights and to not increase their speed until they are safely past the area.

This rule applies to drivers passing near the area of a stationary emergency vehicle flashing their lights in both directions UNLESS the emergency vehicle is on the other side of the road and is separated by a median strip. However, if the emergency vehicle is on the median strip then the rule will continue to apply to drivers travelling in both directions. It applies to all roads including motorways, highways and freeways. The new rule will be in place for a trail period of 12 months to evaluate the safety and traffic impacts and any other consequences there may be for having the new rule.


Driving 40 kilometres per hour near stationary emergency vehicles is being introduced to improve the safety of police and emergency workers as well as those people emergency services seek to help. It also provides drivers with greater direction as to how they should approach a situation when they see the flashing lights. Transport for New South Wales, Centre for Road Safety, said motorists should always start slowing down in a controlled manner as soon as they see blue or red flashing lights, taking into account the road conditions at the time and other road users.

Emergency service vehicles covered by the new rule are:

  • NSW Police Force Vehicles

  • Ambulance Service of NSW vehicles

  • Fire & Rescue NSW vehicles

  • State Emergency Services vehicles

  • Rural Fire Service vehicles

  • Volunteer Rescue Association vehicles

  • Traffic Emergency Response vehicles

If you require any further information or need assistance in determining your options after receiving a fine, please contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

Large Retailers subject to penalties following investigations with the ACCC

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Two large and well known retail corporations, Fitbit (Australia) Pty Limited (‘Fitbit’) and Apple Inc (Apple US), have recently been penalised for false and misleading representations conducted by the Australian Competition and Consumer Commission (ACCC) following extensive investigations.

 

In early June, the ACCC accepted a court enforceable undertaking from Fitbit in response to over one hundred consumer complaints made in relation to warranties for faulty products. During the period of November 2016 to March 2017, Fitbit misinformed consumers that the warranty they offered for faulty products was only available for a single year. Further, they represented that consumers could only get a replacement for faulty goods for 30 days from purchase or the remainder of the calendar year, depending on which was a longer period.

 

Apple US has also received a $9 million penalty for their false and misleading representations of the rights consumers are entitled to for their faulty products. Apple US and Apple Pty Ltd (Apple Australia) misrepresented to 275 consumers that they were not eligible for a remedy on a software error (“error 53”) if their iPad or iPhones had been repaired by a third party. The Court confirmed that repairs by third parties did not extinguish consumers right to a remedy or deny them their consumer guarantees.

 

These matters demonstrate that businesses must make it clear that the warranties offered with their products are added to the remedies available under the legislation, instead of entirely replacing legislated warranties.

 

What are our automatic rights as Consumers?

It is important to understand what your rights are as a consumer as these matters demonstrate how easily consumers can be misled in relation to consumer guarantee obligations, particularly when consumers experience faults in products. Legislation currently establishes a legal obligation for businesses to provide guarantees for consumers, in relation to:

  • Products and services hired, sold or leased under $40,000.00.

  • Products and services hired, sold or leased over $40,000.00 generally bought for household, domestic or personal use.

  • Business vehicles/trailers mainly used for transporting goods on public roads, regardless of cost.


Consumers have rights which include, but not limited to, their goods being free of any undisclosed security, as well as being fit for their purpose, acceptable in appearance/finish, free from defects and goods that are safe and durable to a reasonable consumer. Guarantees for goods may be excluded, however, in matters of change of mind, misuse of products or in instances where a consumer is aware of faults prior to making a purchase.

 

If a product fails to meet a consumer guarantee, consumers have the right to request a repair, replacement or refund. However, consumers may not always be entitled to these requests. The resolution for a consumer issue will depend on whether the issue is deemed to be major or minor. Apple has ensured that refunds or replacements are available to consumers experiencing a major failure.

 

Further information relating to:

  • Fitbit’s representations of faulty products can be found here.

  • Apple’s representations of faulty products can be found here.

 

Coutts are experienced in providing advice on consumer guarantees and informing you of your rights arising under Australian Consumer Law. For further information contact:

Carrie Alton
Lawyer  
carrie@couttsmallikrees.com.au
02 4036 3307

Riley Earle
Lawyer
riley@couttsmallikrees.com.au
02 4607 2114

Scam Awareness Week 2018

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Did you know this week is Scam Awareness Week? ACCC Scam Awareness Week, focusing on: “Stop and check: is this for real?”

In light of the commencement of Scam Awareness Week earlier this week, the Australian Competition and Consumer Commission (“ACCC”) has released the ninth annual Targeting Scams Report which shows the extent of the losses the Australian public has endured at the hands of scammers. A copy of the full report can be found here.


The report states that annual losses of the Australian public in 2017 totalled an astonishing $340 million, surpassing last year’s figure by $40 million, with the average victim losing $6500 per scam. This figure, terrifying enough, ranks investment scams as causing the greatest loss to consumers (with a figure of over $64 million), and dating and romance scams a close second (with a combined figure of over $42 million).


The increasingly complex and aggressive techniques scammers are employing to obtain personal information, is becoming a frightening and very real issue in today’s modern day and age, with over 33,000 reports being received by Scamwatch in the last year. The report also details that the most common forms of reported scams in 2017 were phishing, identity theft and false billing scams.  


In light of the ever-evolving technology world, of particular interest is the loss caused to Australian businesses as a result of scammer’s hacking business emails accounts and IT systems. Following a successful hacking, the scammers observe communications between businesses, customers, and associated financial transactions, and wait for the most appropriate time to act, by sending an email from the hacked account with “new bank account details” for payment.  Coutts reminds its clients of the importance to have strong internal systems and processes in place to verify payments to third parties, in order to avoid this unfortunate situation.


In the spirit of Scam Awareness Week, the ACCC is urging people to “Stop and check: is this for real?” before giving out personal information. In addition, the ACCC Deputy Chair Delia Rickard reminds consumers to remember the following, when receiving a threatening phone call that doesn’t feel right:


1.        “The ATO will never threaten immediate arrest”;
2.        “Telstra will not ask to access your computer”; and
3.        “Centrelink will never require a fee to pay money owing.”


Australian consumer law contains a number of protections which can be engaged when individuals, or businesses, fall victim to a scam. These protections can be found in the law surrounding misleading or deceptive conduct, harassment, and door-to-door sales.


If you’ve been put in a situation where something doesn’t feel right, visit  www.scamwatch.gov.au to report and view current reported scams.

 

For further information contact:

Allyce Silm
Lawyer
allyce@couttslegal.com.au
02 4607 2119

 

Daniel St George
Senior Associate
daniel@couttslegal.com.au
02 9220 1760

 

Changes to Gift Card expiry dates – New South Wales

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As of 31 March 2018 the NSW Government has made changes to the Fair Trading Act 1987 so that there is now a minimum expiry period of 3 years for all gift cards and vouchers sold to consumers within NSW. There is also a ban on charging post-purchase fees for using the voucher that reduce the vouchers value including activation fees or no balance enquiry fees. These changes do not apply to gift cards and vouchers sold before 31 March 2018.

Who will these reforms affect?

These reforms apply to both large and small businesses as suppliers of gift cards for use in their own business. The only exceptions are businesses as suppliers providing the following types of gift cards:

* Gift cards or vouchers given by a business to use in that business to a consumer for free;

* Gift cards or vouchers sold or donated by a business to a fundraising appeal;

* Prepaid cards for services such as phone credit or internet access;

* A gift card or voucher given to a consumer in exchange for returning goods to the supplier (i.e. credit notes); and

* Gift cards or vouchers supplied by a business as part of a temporary marketing program as a bonus to the purchase of a good or service.

Online gift card purchases

Gift cards sold online are covered if the customer is in NSW at the time of the sale or provides a NSW address in connection to the sale. Therefore, if the gift card is sold to a customer with an address outside of NSW the gift card may not require the 3-year expiry date.

However, the business must be certain that the customer resides outside of NSW and be able to prove this, so unless the business is confident of this Fair Trading suggests it may be safer to assume the customer is located within NSW and that the reforms apply to the gift card.

Is there a transition period?

There is a transition period for these reforms beginning 31 March 2018 and ending 30 September 2018. During this phase, businesses can run down their existing stock of pre-printed gift cards but must take steps to inform customers that a 3-year expiry applies to gift cards and vouchers sold after 31 March 2018. For example, a business may try to strike out the incorrect expiry date on the gift card, insert the correct one and provide the customer with written information about the new terms of the gift card.

For more information on these reforms and how they may affect your business visit the Fair Trading NSW website by clicking here.

For further information contact:

Rebecca Watts
Lawyer
Rebecca@couttslegal.com.au
02 4607 2110

 

Keely Irving
Lawyer
Keely@couttslegal.com.au
02 4607 2124

 

26 April 2018 - A Day For Ten Million Dollar Penalties - A Snapshot on Telstra & Ford Penalties

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It is important to be clear, accurate and upfront with consumers about potential costs of services for the consumer and also consumer law rights as evidenced by two Federal Court orders on 26 April 2018 each for $10 million penalties for major companies- Telstra and Ford.  Below is a snapshot on the two ten million dollar penalties.

TELSTRA PENALTY: Following action by the ACCC, on 26 April 2018 the Federal Court ordered Telstra to pay $10 million in penalties for incorrect or misleading consumer representations regarding the “Premium Direct Billing” service.  Telstra charged consumers for phone ringtones and digital games that these consumers purchased without knowing.  The “Premium Direct Billing” service was added to consumer accounts as a default service without the consumers properly being informed of this.  If any consumer (including the children using their parent’s service) accessed the “Premium Direct Billing” then that consumer would purchase the additional digital content and be billed by Telstra. 

The Federal Court found Telstra failed to properly inform the consumers and profited from the incorrect statements and misleading conduct.

Telstra estimate at least 100,000 consumers were affected.  So far there have been $5 million of refunds offered by Telstra to affected consumers and anticipate a further few million of refunds yet to come.

Telstra no longer offers the “Premium Direct Billing” service.

If you think you are an affected Telstra consumer, that signed up to “Premium Direct Billing” without your knowledge or consent, contact Telstra on 13 22 00 or email Telstra to request a refund.

https://say.telstra.com.au/customer/general/forms/Email-Complaint

It is clear that the ACCC is looking into third party billing services more generally beyond Telstra.

FORD PENALTY: On 26 April 2018, the Federal Court ordered Ford to pay $10 million in penalties plus costs for their poor response to consumer complaints regarding three Ford vehicles being the Ford Fiesta, Ford Focus and Ford EcoSport, each of which featured problematic “PowerShift” transmission.  Ford breached section 21 of the Australian Consumer Law.

On 27 July 2017 the Australian Competition and Consumer Commission (ACCC) commenced proceedings against Ford Motor Company of Australia Pty Ltd (Ford) in the Federal Court in relation to Ford's response to customer complaints about Fiesta, Focus and EcoSport vehicles fitted with the PowerShift transmission.

Among other things, Ford failed to provide consumers with sufficient correct information about their rights under the Australian Consumer Law including the consumer guarantee provisions.  Furthermore, the processes that Ford put in place to respond to consumer complaints failed to consider individual circumstances (effectively a blanket procedure with little flexibility).  Consumers were misinformed about their consumer rights and felt they were forced to take up time sensitive offers made by Ford Australia on a misinformed basis that a refund or no-cost replacement was not a viable option.  The offers included non-disclosure provisions meaning that the consumers were not able to discuss the actual settlement they reached with Ford.  Consumers purchased new replacement vehicles at additional cost to the consumer and at financial benefit from Ford.

Ford has undertaken to take corrective action including establishing an independent complaints review program and making Field Services Actions for consumer vehicles available to provide information regarding known vehicle issues and manufacturing defect histories performed on those consumer’s vehicles.  Ford will need to adopt and implement an upgraded compliance system following independent third party advice and an upgraded complaints handling system.

If you made a request for refunds or replacement vehicles to Ford between 1 May 2015 and 1 November 2016 for Ford Fiesta, Ford Focus and Ford EcoSport, you may be eligible to register to have your complaint reviewed by registering at:

www.ford.com.au

 

For further information contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110