freediver wrote on Jan 9
th, 2009 at 5:34pm:
I just spoke to the fair trading people again. They confirmed that it is by mutual agreement, which implies negotiation.
And I am telling you they are FOS. Even if Queensland law says that , Federal law overrules it.
The Trade Practices Act says that you have a claim for any good not of merchantable quality:
TRADE PRACTICES ACT 1974 - SECT 74D
Actions in respect of goods of unmerchantable quality
(1) Where:
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re‑supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are not of merchantable quality; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality;
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Subsection (1) does not apply:
(a) if the goods are not of merchantable quality by reason of:
(i) an act or default of any person (not being the corporation or a servant or agent of the corporation); or
(ii) a cause independent of human control;
occurring after the goods have left the control of the corporation;
(b) as regards defects specifically drawn to the consumer's attention before the making of the contract for the supply of the goods to the consumer; or
(c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to:
(a) any description applied to the goods by the corporation;
(b) the price received by the corporation for the goods (if relevant); and
(c) all the other relevant circumstances.
What are my obligations?
When you sell goods you must make certain that they fulfil certain conditions and warranties that are implied under the TPA.
http://www.accc.gov.au/content/index.phtml/itemId/8818
Quote:You must be sure that goods:
are of merchantable quality—that is, goods need to reach a basic level of quality given the price of the goods and any description that is provided with the goods
are fit for the purpose or job that the consumer described to you or that are self-evident
match any description or sample given to the consumer whether in promotional material, over the phone, in person, on a website or on labelling or packaging
are free from defects and faults.
You must also be sure that any goods you sell have no debt or financing owed on them so the consumer can have free title to the goods.
If the goods you have sold do not fulfil any of these conditions then the consumer may be entitled to a refund from you on return of the goods. If the goods have been partially consumed the consumer may be entitled to a refund depending on the circumstances and the extent to which the goods have been consumed.
Consumers can choose an alternative remedy to a refund. In these circumstances you may want to offer an exchange, a credit note or to repair the goods.
If the goods being returned have had a fair amount of use then you may be entitled to provide a partial refund only or to repair the product instead. This will depend on the circumstances of the sale and return and if the use of the goods has affected the fault.
You have the right to ask for proof of purchase from the consumer, for example, a receipt or credit record.
You are not obliged to provide a refund, credit or exchange if a consumer has:
changed their mind, decided they no longer want the goods or just don’t like them, or found that goods are the wrong size or colour
found they can buy the same or similar goods elsewhere for a cheaper price
examined goods before buying them and should have seen any fault at that time
had a defect drawn to their attention before they purchased goods, for example, when goods are clearly labelled as seconds or faulty.
That's Federal law and it overrules Queensland law, whatever Queensland fair trading thinks. Ask them at Fair Trading why they think that State law overrules s 74D of the Trade Practices Act next time you speak to them.
Muppets.
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