- Australia's #1 Legal Community is a community of 10,000+ Australians, just like you, helping each other.
Ask a question, respond to a question and better understand the law today!
Join us, it only takes a minute:

WA Refund for a Defective Product under Australian Consumer Law?

Discussion in 'Australian Consumer Law Forum' started by Tesla, 9 November 2015.

Find a Lawyer Form
Find a Lawyer Form
Find a Lawyer Form
  1. Tesla

    Tesla Member

    9 November 2015
    Likes Received:
    Hi. Apologies for the long message - I would really appreciate any help!

    On 29 October I ordered an $800 DSLR camera lens from an independent camera store by phone. It arrived at their store a week later. I went to collect the lens and paid by cash after quickly inspecting the lens. Once I arrived home I noticed that the lens had a fault. I rang the manufacturer who confirmed this and recommended I take it back. The fault was seemingly minor and did not appear to affect its performance (although I did not rigorously test this). However, I would never have purchased an $800 lens had I known it had a fault as it could be a sign of functional failure to come. I visited the store at midday and demonstrated the fault, asking for a refund. They responded (paraphrased):

    "We accept that the lens is not up to scratch and has a manufacturing defect, however, you do not have the right to a refund because we deem this to be a minor problem – we can only offer you a repair."

    They also said:
    "The boss is away on holiday and has left no one with the authorisation to give refunds, furthermore, the boss has never given a refund under these circumstances before so I don't think he would approve. The boss normally has a policy of sending for repairs and not giving refunds."

    The reason I wanted a refund was because I was returning to the UK that afternoon. The staff were aware of this because they had previously informed me that if the lens had not arrived at their store in time for my departure I would not be charged. Knowing that I had to go to the airport imminently, they purposely delayed until I had to leave. However, they did mention the possibility of a replacement and promised to contact me when the boss was back the following morning. I have had no contact from them since (two days have passed). I am now in the UK, having left the lens with a relative in Australia.

    It seems very unfair for them to sell me a defective lens and only offer a repair or replacement knowing full well that I could not remain in Australia to await the repair, or for the replacement to arrive. The decent thing would have been to issue me a refund. Having researched Australian Consumer Law (ACL) in the meanwhile, I found the following relevant information:

    "Any faults present at the time of sale must be indicated."


    "When you have a major problem with a product, you have the right to ask for your choice of a replacement or refund. ... A product or good has a major problem when ... it has a problem that would have stopped someone from buying it if they’d known about it.”

    This information indicates that I have the right to demand a refund. However, the staff mentioned it was a minor problem and may have been referencing this statement in the ACL:

    "If you have a minor problem with a product or service, the business can choose to give you a free repair instead of a replacement or refund.”

    These positions are in conflict: In my opinion it is a major problem because I would not have bought this lens had I known about the fault (that being the definition of a major problem, see above). In their opinion the fault is minor (thus they claim this is a minor problem) and they won't give me a refund. This means that I have essentially lost the $800 lens because I will not be returning to Australia in the foreseeable future even if it were repaired/replaced. This lens was required for a photography holiday I am going on imminently (which they also knew). Thus shipping the lens out would not only be prohibitively expensive but it would also be too late for me to use – hence I require a refund in order to repurchase this lens at a local store very soon.

    I would really appreciate any advice on the matter - specifically with regard to whether this is a minor or major problem and whether I have the right to demand a refund. Thank you!
  2. Sophea

    Sophea Well-Known Member

    16 April 2014
    Likes Received:
    Hi Tesia,

    As you have pointed out, Section 260 of the ACL defines a major failure as follows:
    A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is a major failure if:
    (a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or
    (b) the goods depart in one or more significant respects:
    (i) if they were supplied by description - from that description; or
    (ii) if they were supplied by reference to a sample or demonstration model - from that sample or demonstration model; or
    (c) the goods are substantially unfit for a purpose for which goods of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
    (d) the goods are unfit for a disclosed purpose that was made known to:
    (i) the supplier of the goods; or
    (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made;
    and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose; or
    (e) the goods are not of acceptable quality because they are unsafe.

    If you dispute their assertion that the defect is minor. I would write them a letter stating why you believe the defect is a major one in accordance with the above section and advise them that you will be taking the matter to the Dept of fair trading or WA equivalent if they refuse to.

Share This Page