WA Fridge Broke After 12 Days - Australian Consumer Law Rights?

[Kateallum]

Hi, I need some advice please. I bought a fridge off a business called Nafys white goods. It sells second hand appliances. It broke within 12 days so I asked them to come and fix it. They said earliest they could come was 4 days later between 7-11am. On the day I got a text at 10.36am saying they can't come till the afternoon. When I asked a time they couldn't give me one. This then caused a heated argument. A few hours later I get a text saying they will be at my house in an hour, I then said ok I will be home in 40 mins, then they replied with " we will actually be there in 20 mins and can't wait around for you" I got very angry then as I had to stop what I was doing an go home. I said there business was useless etc. When the man arrived, I then showed him the fridge and he initiated a conversation saying " I read the messages and we don't tolerate abuse" I said I wasn't abusing use, u were stuffing me around. He then interrupted me and said if your gonna give me attitude I won't fix it and I said excuse me he then repeated it and I raised my voice and said fix my fridge. He then walked out. They now refuse to fix my fridge and want to charge me a call out fee Of $75 for coming to fix the fridge that day which there saying they couldn't fix cause I was very abusive, which they are exaggerating and were just as rude to me. I went to consumer affairs and they still refuse so I want to take them to small claims court. Do I have a case under Australian consumer law? I have all it on text. And there are many others that have broken appliances from them. They have a long list of bad reviews on Facebook.

Need to know if i will get my money back plus get them to pay for court fees and also want $150 for food that went off and the 4 days without a fridge? They also had a 30 day policy which they aren't abiding by but also I know as a business they are suppose to sell appliances that stay working for a reasonable amount of time and 12 days isn't a reasonable amount of time. Only thing is they may say I was to abusive to do the job? Can they win by saying this?

 

[Tracy B]

Hi Kateallum,

You do appear to have a claim under Australian Consumer Law. Take a look at:

• "Australian Consumer Law Guarantees: How Can They Protect You?"
• "Consumer Protection: What To Do If Your Consumer Guarantees Are Breached"

And contact the WA Department of Commerce to lodge a complaint.

 

[Kateallum]

Thanks Tracey. Thing is I don't have a receipt. But it was all through text message when I bought it. And they also mentioned they found my receipt number in one text is this still proof I bought it?

 

[Tracy B]

Hi Kateallum,

Yes, a string of text messages can constitute the sale and purchase agreement (including receipt). As can a credit card account statement or any other thing that verifies: sender, seller, date and payment.

 

[Sophea]

Hi Kateallum,

The Australian Consumer Law institutes nine consumer guarantees that apply to products whether purchased new or second hand, and they can not be excluded by agreement. For example suppliers are required to guarantee that:

• the product they sell is of acceptable quality; and
• that the product will be reasonably fit for any purpose the consumer specifies.

This law is the same all over Australia.
You can read more about it in this e-book.

http://www.consumerlaw.gov.au/conte...ads/industry_guides/electrical_whitegoods.pdf

 

[Kateallum]

Thankyou

 

[Kass]

Hi Kateallum, I am just wondering if you have had any luck? I also purchased a fridge off "Nate Brown" though it was a private sale through facebook and my fridge has lasted approx 10 days. We went on holiday for the weekend and came home to a freezer and fridge off mostly spoiled food. I have tried messaging him but of course have had no reply. It seems a lot of people have been scammed by this person after searching around a bit online.

 

[Tracy B]

Hi Kass,

If "Nate Brown" is a private seller then you will unlikely be covered under Australian Consumer Law. Australian Consumer Law only applies to sales contracts between individual consumers (yourself) and Australian businesses. Private sellers or goods obtained via a private sale will not be protected. In this case, your only option is to go to court and seek compensation (e.g. under misrepresentation).

However, it may still be worth contacting Consumer Affairs for a chat. Sometimes, businesses covered by Australian Consumer Law try and circumvent the protections by making out that the sales are private sales. Whether a sale is private or covered by ACL will depend on the nature to the sale and the seller. So, Nate Brown may already be on Consumer Affairs' radar.

 

[Ski]

I bought a freezer from Nafys as well thru Gumtree. On the ad it stated a 30 day warranty. When we purchased the freezer I was told by his wife Kelly that their printer was broken and she would email me an invoice the next day. This did not happen and when the freezer stopped working less than 2 weeks later I texted to see if they would fix it or give a refund. They texted back saying it was a private sale and they would not. I have since had a string of emails with them asking them for an invoice. I even offered to go by their house and pick up a written one from their post box. Kelly agreed to do that, but it was not in there when I went by. I then asked her to email it to me as originally promised and she said their computer was getting fixed and she would when she got the computer back last week. I have still not received one. The freezer does not work and I nearly lost $200 worth of meat. I sent an email to them after reading this forum and said that I would like a refund. They basically said it was a private sale and they would not.

 

[Tracy B]

Hi Ski,

It's unfortunate that they did not keep their word. As you're probably aware, items bought in a private sale (e.g. Gumtree or garage sale) will generally not be covered under Australian Consumer Law. This means that certain statutory guarantees are not implied in the contract for sale.

However, in your case, it appears they have made very clear representations that there was a 30 day warranty and that they would provide you with an invoice within a day of the purchase and that the warranty would be written on the invoice for you to claim if needed. There may also be a representation that the fridge is of working condition and will not break down within a reasonable time (2 weeks is not a reasonable time for a fridge to be working until). Given that the sale is not covered under ACL (and therefore Consumer Affairs or Fair Trading will not help you), your only option to recover compensation is to sue them in court. Which state are you residing in? Is the fridge also in this state? You can most likely have your action heard in the small claims court or division. Your cause of action would be (i) breach of contract; or (ii) misrepresentation. You may have more causes of action, it's best to speak with your local legal community centre about this. Your evidence would be: any string of communication that is recorded between you and the seller, a copy of the invoice, a copy of your credit card statement (or receipt) showing payment of purchase price to the seller, evidence that the fridge is broken and estimated cost for repair or replacement, cost of any food (e.g. meat) evidenced via receipt if possible, the original advertisement on Gumtree, anything else you have in writing that directly or indirectly supports your claim that you were misrepresented or that they were "dodgy".