By Sophie Diedrichs, Solicitor, Aspiring Law
It’s hard to believe two months have zipped by since Christmas – but what happens if, in the weeks since, that much-loved gizmo that was waiting for you under the tree has gone kaput?
While much has been done in recent years to strengthen consumer laws and educate buyers and suppliers, there remains a fair amount of confusion on both sides of the fence on how to deal with complaints around substandard goods and services.
So, you have a product that appears dodgy – who’s responsible? The supplier, the manufacturer, or both? What’s the best way to approach getting your problems resolved? What options do you have if you don’t have any joy? You know, as a consumer, you’re entitled to products or services that are “fit for purpose” – but what does that actually mean? And, those “extended warranties” the salesperson hits you up for, are they worth it?
Know your rights
Consumer rights are protected in New Zealand by several pieces of legislation; however, the main players are the Fair Trading Act 1986 and the Consumer Guarantees Act 1993.
The Consumer Guarantees Act deals with goods or services that are normally bought for household, domestic or personal use – business-to-business transactions tend to fall under the Fair Trading Act. For example, if the office printer dies before its time, any claim would likely need to be made under the Fair Trading Act. In cases where the near-new household washing machine springs a leak, you’re looking at a complaint under the Consumer Guarantees Act.
The Consumer Guarantees Act provides what we call “implied mandatory guarantees” – forgive the legal lingo. That means, as a consumer, you can take it as a given that the seller has the right to sell the goods, and that the product comes with an automatic quality guarantee, including being safe, durable and reasonably priced, it lives up to any product description, and that it’s “fit for purpose”.
The term “fit for purpose” is bandied around a lot, but what does it actually mean? There’s actually no cut-and-dried, across-the-board answer, unfortunately. What the law calls for, though, is that any product or service be of a standard that the seller claims it to be, or that the consumer has specifically asked for. In other words, if a seller claims a product provides a certain benefit, then that benefit it must provide. Similarly, if a consumer specifically requests a product that achieves a certain end, and it doesn’t, then the buyer likely has a claim.
So, your Christmas gizmo is dead, or dying. What to do, and where to start?
Stake your claim
My suggestion, in most cases, would be the supplier – although, in lots of cases, the manufacturer could well carry responsibility, as well. But any claim will have to be against one or the other – you can’t pursue remedies from both at the same time. In terms of choosing who to pursue, often it can just come down to logistics and accessibility – if there’s a local supplier that you can go in and see, that might be easiest. If, for example, the supplier’s closed down, track down the manufacturer.
Some tips on raising a complaint:
- Do so as soon as you become aware there’s a problem
- Document what’s gone wrong – even if you meet or phone the manufacturer or supplier to discuss the issue. A written record will be invaluable should you take it further
- Also, diary note all the communications you have trying to resolve your complaint, if it can’t be sorted on the first try
- Try to be as up-with-play as possible on your rights and responsibilities. Remember, if any problems with your gizmo stemmed from misuse or carelessness on your part – including not following the manufacturer’s instructions – you’re likely out of luck
- Do you have a wider claim? In some cases, you can also seek redress for reasonably foreseeable losses caused by a breach of consumer law
Where the failure of a product is the responsibility of the supplier and/or manufacturer, you are entitled to have it repaired, if possible and, if not, replaced or be fully refunded.
Seeking redress
It would be nice to think that all suppliers and manufacturers are aware of their responsibilities in respect of consumer law, but the unfortunate reality is that sometimes that’s not the case. A supplier might even seek to avoid responsibility. The first question you have to ask yourself – is a fight worth it, or is it better just to let it go and, perhaps, get redress through not putting further business their way again?
If the value of the product in question – or the principle – warrants the time and effort, one option is the Disputes Tribunal, which hears claims up to $15,000, or up to $20,000 where both parties agree to the higher amount. While you can seek legal advice around taking a case to the tribunal, the actual hearing is a lawyer-free zone. You represent yourself, and it’s free, bar a small application fee. If your claim exceeds the tribunal’s thresholds, give your lawyer a call to suss out other possible options.
Finally, let’s look at one of the more controversial – and confusing – areas of consumer protection: extended warranties. Are they worth it? Depends. Though, in many cases, you’re likely paying for protection you already have under consumer law and/or your personal insurance policies.
However, there are definitely situations where an extended warranty is worth shelling out for – but be sure it does, in fact, offer a higher level of protection than what you’re entitled to, anyway – for example, a “no questions answered replacement” as opposed to having to wait for a repair job, as provided for under the Consumer Guarantees Act.
Don’t forget, under new consumer laws brought in in 2015, businesses are required to provide black-and-while, clear cut information that spells out your rights under the Consumer Guarantees Act, your entitlements under an extended warranty, and details on precisely what added protection you’ll receive in paying for the extra cover.
Be sure to make sure you receive this information, and weigh it up carefully – your wallet will thank you for it.
When it comes to protecting your rights as a consumer, knowledge of the legal fundamentals really is one of the best resources you can have in your toolkit.