Changes to ACL that affects Lemon's

Possum3 · Guru

Changes to ACL that affects Lemon's

Tony Bev · Guru

Hi Possum

I am not a lawyer, but correct me if I am wrong

If from 17 December 2020, I had purchased a new caravan, then the water tank fell off, and a few more miles down the track, the door fell off

Could I expect a total refund from the seller

Or could they be able to say

Sorry son, but they were two mechanical malfunctions, and not two major failures

I suppose what I am asking is, does it have to be two catastrophic failures?

montie · Guru

Tony Bev wrote:
Hi Possum

I am not a lawyer, but correct me if I am wrong

If from 17 December 2020, I had purchased a new caravan, then the water tank fell off, and a few more miles down the track, the door fell off

Could I expect a total refund from the seller

Or could they be able to say

Sorry son, but they were two mechanical malfunctions, and not two major failures

I suppose what I am asking is, does it have to be two catastrophic failures?

The Australian Consumer Act is there to protect the consumer.

A major failure is defined under the Act and if you believe you are entitled to a refund or replacement because of it you can lodge your claim at the relevant Tribunal in your state.

You will be asked to provide a witness statement with all evidence you have to support your claim including expert opinion, documentary evidence etc., The respondent will also be given the opportunity to present their evidence refuting your claim with their supporting evidence etc.

The claim will then go to mediation where the parties are encouraged to settle the dispute.

In the event that an agreement is not reached the claim will proceed to a hearing where a judgement will be made.

It is relatively inexpensive to make a claim to the Tribunal but you must receive special permission to have a solicitor present.

All States have no limit to the dollar amount of the claim that can be heard except QLD where the limit is $100,000. In QLD any claim above that amount has to be heard through the Courts which is very expensive.

Possum3 · Guru

From how I understand the New amendment/s to the Act - Two or more minor failures constitute a major failure; ipso facto a valid reason to nullify the contract and the purchaser having grounds to return product for full refund - the methodology of how this will be done is not covered by the amendment/s.
It should serve as a warning to all Manufacturers and Dealers to ensure quality is integral to their product/s.

montie · Guru

Possum3 wrote:
- the methodology of how this will be done is not covered by the amendment/s.

I have explained in my post how to make a claim under the ACA.

If you can support your claim with evidence your claim will probably be successful.

I fully support the ACA.

Tony Bev · Guru

Hi Possum and Montie

Thanks for making it a bit clearer, I am not trying to stir the pot

At the moment the good wife wants me to buy a caravan

If and (at the moment) only if, I purchase a caravan, I was torn between a new one, with probably unknown faults, or a second hand one, which may/may not have faults

Teo · Senior Member

This is a step in the right direction for new caravan buyers.
But what would be classified as a major failure to warrant a full and total refund?
I can see how that can happen with a toaster or a TV maybe, but on an $80k caravan you would need some pretty strong arguments.
I am lucky that I have never suffered the frustrations that some vanners have. I hope this legislation can work.

montie · Guru

Teo wrote:
This is a step in the right direction for new caravan buyers.
But what would be classified as a major failure to warrant a full and total refund?
I can see how that can happen with a toaster or a TV maybe, but on an $80k caravan you would need some pretty strong arguments.
I am lucky that I have never suffered the frustrations that some vanners have. I hope this legislation can work.

Teo,

Low cost items are simply replaced on complaint...it's built in to the price.

High cost products are different and are treated as such.

montie · Guru

Tony Bev wrote:
Hi Possum and Montie

Thanks for making it a bit clearer, I am not trying to stir the pot

At the moment the good wife wants me to buy a caravan

If and (at the moment) only if, I purchase a caravan, I was torn between a new one, with probably unknown faults, or a second hand one, which may/may not have faults

Tony,

Your rights are the same under the ACA for both new and used caravans.

However, The Tribunal will take into account the age of the product in any decision. It will also take into account any warranty offered by the dealer.

Teo · Senior Member

Thanks Montie.
I hope this tribunal has the teeth to do some good for people who need it.
Long overdue.

montie · Guru

Teo wrote:
Thanks Montie.
I hope this tribunal has the teeth to do some good for people who need it.
Long overdue.

Teo

Tribunals have been in each State for many years.

QCAT (Queensland Civil and Administrative Tribunal) for QLD.

Then you have NCAT in NSW and VCAT in Victoria.

They have the same power to make orders as the Courts and are an inexpensive way to make claims under the Consumer Act, Tenancy Act, Civil Disputes etc.,

Unfortunately in QLD your claim is capped at $100,000 where NSW and VIC are unlimited.

You can employ a solicitor to help prepare your claim but he cannot represent you at the Tribunal without special permission.

-- Edited by montie on Wednesday 3rd of February 2021 07:40:18 AM

Farmhat · Senior Member

Possum3 wrote:
Treasury Laws Amendment (2020 Measures No. 6) Act 2020 (legislation.gov.au)
If any goods (caravan per se) purchased on or after 17th day of December 2020 suffers a major failure it may be returned to seller for a full and total refund.
The pertinent bit;

Schedule 4 paragraph 36:
36 At the end of section 260 of Schedule 2
Add:
(2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:
(a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and
(b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.
Note: The multiple failures do not need to relate to the same guarantee.
(3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures.

39 In the appropriate position in Chapter 6 of Schedule 2
Insert:
Part 6Application and transitional provisions relating to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020
303 Application of amendments relating to multiple nonmajor consumer guarantee failures
(1) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to goods supplied under a contract entered into on or after the day that that Part commences.
(2) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to a services supplied under a contract entered into on or after the day that that Part commences.

It would be nice if things like this were written in a bit simpler english.

Joe.

montie · Guru

Farmhat wrote:
Possum3 wrote:
Treasury Laws Amendment (2020 Measures No. 6) Act 2020 (legislation.gov.au)
If any goods (caravan per se) purchased on or after 17th day of December 2020 suffers a major failure it may be returned to seller for a full and total refund.
The pertinent bit;

Schedule 4 paragraph 36:
36 At the end of section 260 of Schedule 2
Add:
(2) A failure to comply with a guarantee referred to in section 259(1)(b) that applies to a supply of goods is also a major failure if:
(a) the failure is one of 2 or more failures to comply with a guarantee referred to in section 259(1)(b) that apply to the supply; and
(b) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole.
Note: The multiple failures do not need to relate to the same guarantee.
(3) Subsection (2) applies regardless of whether the consumer has taken action under section 259 in relation to any of the failures.

39 In the appropriate position in Chapter 6 of Schedule 2
Insert:
Part 6Application and transitional provisions relating to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020
303 Application of amendments relating to multiple nonmajor consumer guarantee failures
(1) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to goods supplied under a contract entered into on or after the day that that Part commences.
(2) The amendments made by Part 1 of Schedule 4 to the Treasury Laws Amendment (2020 Measures No. 6) Act 2020 apply in relation to a services supplied under a contract entered into on or after the day that that Part commences.
It would be nice if things like this were written in a bit simpler english.
Joe.

Joe,

It is not up to the consumer to decipher complicated legal jargon, that will be done by the magistrate

when a claim is heard by the Tribunal.