Got a Lemon?

Cupie · Guru

Got a Lemon?

The Belmont Bear · Guru

An interesting article Cupie I think that the point about avoiding using the internet or forums to defame a manufacturer or dealer is sound advice especially if you are looking to get some sort of compensation from them. Getting a lemon would be stressful enough without having to fight a defamation case on top of it.

ants_oz · Veteran Member

Just nice to see someone trying to help people understand Australian Consumer Law (which has been in effect since Jan 2011). It is my opinion that a vast number of people out there in consumer-land have no idea what their legally-enshrined consumer rights are.

montie · Guru

Ant,

The Consumer Act is a not easy for people to understand or attempt to read unless you are a solicitor.

Most complaints with RV's come down to faults after purchase which are treated under the Consumer Act as major or minor.

A major fault is one the cannot be rectified or is too difficult to do so. With a major fault you have the right to seek replacement or money back.

A minor fault is one that can be rectified within a reasonable period of time and you are entitled to request that it is done at no cost to you.

Misrepresentation is another issue covered by the Consumer Act and is a bit more complicated.

Montie

ants_oz · Veteran Member

Hi Mont,

While the ACT itself might be legal territory, there are excellent "plain English" publications (eg from the ACCC) which explain how the ACL works - putting in simple terms, what consumer rights are and what seller obligations are.

I have never had cause to question the content of these publications and determine whether the intent is adequately captured in the legislation. If you have, then perhaps some feedback to the ACCC would be in order?

montie · Guru

ants_oz wrote:
Hi Mont,
While the ACT itself might be legal territory, there are excellent "plain English" publications (eg from the ACCC) which explain how the ACL works - putting in simple terms, what consumer rights are and what seller obligations are.
I have never had cause to question the content of these publications and determine whether the intent is adequately captured in the legislation. If you have, then perhaps some feedback to the ACCC would be in order?

Ant,

99% of our issues are minor ones which we rectify under warranty.

A couple of years back we had a misrepresentation claim where the ATM of the van we sold was greater than the tug tow capacity.......we refunded the money and took the van back. This was done after negotiation with the buyer. That's the only claim we ever had.

You and I can express our opinions about the interpretation of the Consumer Act but the final interpretation as it applies to a particular claim is made by the guy with the wig and bifocals. There's always something final about his opinion! smile

Montie

-- Edited by montie on Thursday 19th of January 2017 08:51:04 AM

-- Edited by montie on Thursday 19th of January 2017 08:52:24 AM

Possum3 · Guru

There is incorrect advice being given above; The Australian Consumer Law is clear that if unit is dangerous, unable to be repaired, falsely represented, has major defects - the consumer has the right to a full refund.

If an RV dealer is unaware of the ACL he should not be giving advices as to it's interpretation - Although not a Solicitor or a member of the Bar, I have studied Commercial Law and Criminal Law and may know a modicum about it.

Possum3 · Guru

consumerlaw.gov.au/files/2015/06/ACL_framework_overview.pdf

This makes for very interesting reading. Shows why the ACL was developed and how the intent was to strengthen consumer protection.

mumpedo · Member

I posted this on another thread but it belongs here as well, with the addition of some of the actual text of the ACL to show that it is easily understandable.

Just like breaching road rules, breaching the Australian Consumer Law (ACL) is illegal. We don't need a lawyer to tell us if we have breached the road rules. We are expected to know them and abide by them. The ACL is the same. It is written clearly in plain English and there are a wealth of guidelines on the ACCC web site to ensure that businesses clearly know their responsibilities. When a dealer or manufacturer then chooses to breach this law the burden of proof should be on them to show that they haven't breached it, not on the consumer who has already provided proper evidence, followed the procedure in the ACL to reject the product and requested the remedy as specified under the law. Manufacturers should also know that some breaches can lead to criminal charges, specifically s. 106 for selling a non compliant product.
www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations

Here is the exact wording from the ACL of a definition of a 'major failure' which entitles the consumer to a choice of refund or replacement under s. 263. As you can see it is easy to understand and in plain English. The intent was that consumers would have a simple way of getting consumer rights without having to resort to legal action, as shown in the document Possum3 linked. Part (a) alone would apply to most lemons.
260 When a failure to comply with a guarantee is a major failure

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.

When dealers and manufacturers try to silence any lemon product owner with defamation threats it is not in the best interests of consumers or the market. That is why the ACCC is taking action against Meriton Apartments for stopping unhappy customers from writing negative reviews on TripAdvisor.
"Consumers rely on independent review platforms like Trip Advisor when making purchasing decisions. If reviews are manipulated to falsely create a more favourable impression about a provider, consumers may choose that provider on the basis of that falsehood over another accommodation provider who has not engaged in misleading conduct."

This also applies to deleting negative reviews from business owners web sites and Facebook pages or getting their employees and friends to give five star reviews. It creates a more favourable impression about a business and consumers are choosing to purchase from them without full evidence. This comes under misleading and deceptive conduct under the ACL.

My understanding of defamation threats is that they are generally hollow, as to run a defamation case can cost millions. It is pretty rare they ever get to court. So if that is the case the threats are probably used to scare a consumer into silence. I think this would come under unconscionable conduct in the ACL.

montie · Guru

I have Googled the Consumer Act to death and then tried again.
Blow me down but nowhere in the Act can I find any circumstance where a product can be defined as a "lemon".
Perhaps some of the legal experts can explain and provide the legal definition.....after all they seem to have a legal for everything else!

Montie

mumpedo · Member

Monty there are no lemon laws in Australia as yet but they may be coming.

I think you need to stick to the main facts about major failures for now and not try to put up a 'straw man' argument to side track the debate from the clear facts of the ACL and the ACCC publications.

montie · Guru

mumpedo wrote:
Monty there are no lemon laws in Australia as yet but they may be coming.

I think you need to stick to the main facts about major failures for now and not try to put up a 'straw man' argument to side track the debate from the clear facts of the ACL and the ACCC publications.

Mmmmmm!

What was the title of this thread again? blankstare Perhaps the OP was seeking some advice on cooking!

There are no Lemon laws in Australia, that's why we have a Consumer Act, so what then constitutes a "lemon" caravan and who determines it?

There is no reference in the Consumer Act that I can find that labels any product as a lemon.

Montie

mumpedo · Member

montie wrote:
mumpedo wrote:
Monty there are no lemon laws in Australia as yet but they may be coming.

I think you need to stick to the main facts about major failures for now and not try to put up a 'straw man' argument to side track the debate from the clear facts of the ACL and the ACCC publications.
Mmmmmm!
What was the title of this thread again? Perhaps the OP was seeking some advice on cooking!
There are no Lemon laws in Australia, that's why we have a Consumer Act, so what then constitutes a "lemon" caravan and who determines it?
There is no reference in the Consumer Act that I can find that labels any product as a lemon.
Montie

Well you got one thing right. The word 'lemon' isn't in the ACL. However if you put section 260 of the ACL side by side with the definitions of a lemon, say in US Law or the Queensland 'lemon law' enquiry, even you might see some similarities.

Haven't you ever returned a product to a supplier for a refund in your entire life Monty?

mumpedo · Member

I buy a toaster. Works fine for two weeks. Then it bursts into flames when I toast my bread, same settings as normal. Nearly burns my house down. I take it back to Kmart/Woolies/Coles etc whatever. I say I want a refund.

I buy an expensive TV. I plug it in and it has stripes down the screen. It won't pick up all the stations or connect to the internet like it says. It turns itself off and on randomly. I take photos and show them to the sales people at the store. I say I want a refund.

Do these suppliers tell you that you need to take legal action against them in a court to get your refund? That they are unable to apply ACL even though the ACCC has given them a lot of guidelines on what they should do?

How many people have returned faulty goods to stores and received a refund without an argument? I bet just about every member of this forum. That is the cornerstone of the Australian Consumer Law. How good is it to know that you can do that if you buy from a major retailer. This is because they know the ACL and some have been prosecuted for breaches of it.

When it is obvious that a product is seriously defective (aka major failures) suppliers are supposed to do the right thing by the consumer. It doesn't matter what the product costs. In fact, the higher the price of the product, the more right the consumer has to expect exceptional quality.

Why is this argued against so vehemently when it comes to caravans or cars or other RVs? The ACL applies the same way from a defective toaster to a defective caravan.