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  Reply # 305543 8-Mar-2010 22:19
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savag3: Buy now on trademe is not an auction. Otherwise for second hand goods the original retailer is no longer liable however the manufacturer is still liable.



Do you have precedent for the ''Buy now on trademe is not an auction" aspect of your reply?
Surely the product was put on-line as part of an auction?
People bid on the product, and in this case, to win the auction - the Trademe user has used the 'Buy Now' function.
They've entered an auction and won...

I have heard that Commerce Commission don't like this, but I'm yet to see it hold up in court.
I'm just asking, as I would be fascinated to see how far the CC's powers reach.


As a side not, I do not believe slight leakage on a budget Samsung LCD to be anything out of the ordinary... and not a warranty (bearing in mind that, like most of us on here, I personally haven't seen the tellie in question).

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  Reply # 305552 8-Mar-2010 22:35
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savag3: The lack or otherwise of a warranty from Samsung is irrelevant because their obligations under the CGA supercede any warranty and can't be contracted out of unless you are purchasing the goods for business purposes.
The manufacturer is still liable for second hand goods. The only instances where the manufacturer is not liable is if the person who purchased the goods was a business and the retailer contracted out of the Consumer Guarantees Act or the goods were purchased by auction or competitive tender. Buy now on trademe is not an auction. Otherwise for second hand goods the original retailer is no longer liable however the manufacturer is still liable.
If Samsung are saying they aren't liable under the CGA you could try reminding them that they are breaking the law by misleading you as to your legal rights (s9 Fair Trading Act 1986) and that you will lodge a complaint with the Commerce Commission along with seeking a full refund at the Disputes Tribunal because they are refusing to fulfull their responsibilities under the CGA.


That's certainly not my understanding (having known somebody who took up the same challenge). The CGA doesn't cover goods purchased via auction or from a private seller. This in effect means once a product has been resold by a private seller the new owner can have no claim under the CGA for the goods with the original company that sold the goods.

There may be other ways of lodging a claim against them and the disputes tribunal is one as you may find a referee that is sympathetic for your cause.


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  Reply # 305559 8-Mar-2010 23:05
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My understanding is that if it's a one off private sale by auction you are definately not covered by the CGA or FTA.

However if the seller is a business who regularly/re-occuringly sells tv's via trademe then they are treated like a business that sells via mail order or a traditional shop and the CGA and FTA do apply.

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  Reply # 305560 8-Mar-2010 23:14
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The strange thing is alot of places allowed you to transfer the "extended warrenty". If you bought it (Noel Lemmings for example) and they allow you to sell the goods and the extended warrenty still occurs (If you let them know). Even the "Extended Warrenty" you can by say from NEXT allows you to sell the goods and you don't even have to tell next when you sell it!

As (to most people) the entended warrenty is the same as the normal warrenty (except you are increasing it from 1->3/5 years) you could argue on this point .

At no time when companies try and sell me a extended warrenty have they ever toll me its not a manufacturers extended warrenty but a 3rd party company who is warrenting it from year 2->3/5


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  Reply # 305607 9-Mar-2010 08:46
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The thing to remember with this is that it is the companies decision i.e. Noel Leeming, to transfer their extended warranty. It is their product/service that they are selling. 

If the OP knew that the item was purchased from a particular retailer then they could try to go back to that retailer but it is one of the misconceptions that the public has when buying goods second hand that if they are still in the warranty period then it'll be all good. However, warranties are not required to be transferable, nor are the purchases covered under the FTA or the CGA, as the retailer could not reasonably expect to know what representations have been made about the product.

Pretty much the only rights you have purchasing a second hand item (and yes, it is second hand even if the box has never been opened is perhaps the Contractual Remedies Act which gives you recourse to the person you purchased the item from, or the Sale of Goods Act which gives you recourse if the person you purchased the item from did not have the right to sell the item. Interestingly the last one can be contracted out from if you're told at the time of the sale.

Interesting reading for those who care http://www.consumeraffairs.govt.nz/consumerinfo/secondhand.html 

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  Reply # 305608 9-Mar-2010 08:49
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On a side note it's probably one of those things Trade Me should have on their website informing people of their rights and responsibilities under the law being the responsible company that they are!Wink



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  Reply # 305609 9-Mar-2010 08:54
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About extended warranties... I always thought those were actually insurance by any other name offered by the retail stores at large commisions and always pushed down during the sale process?




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  Reply # 305661 9-Mar-2010 12:26
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freitasm: About extended warranties... I always thought those were actually insurance by any other name offered by the retail stores at large commisions and always pushed down during the sale process?


Correct, if buying from a retailer, it usually offers no more protection than current legislation.  If the product was unopened, you could go to Disputes Tribunal, and claim against both the manufacturer and the party who sold it to you, as long as the TV was clearly defective you MAY have a chance of winning, as the Disputes Tribunal rule of law is pretty relaxed. Dont hold your breath though.  

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  Reply # 305697 9-Mar-2010 14:51
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MikeyPI: ...as the Disputes Tribunal rule of law is pretty relaxed.  


That just says everything about the legal system in NZ doesn't it?

I haven't had anything to do with the Disputes Tribunal for a few years now but if this is the case how can anyone really know their rights? 

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  Reply # 305700 9-Mar-2010 15:26
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Byrned:
MikeyPI: ...as the Disputes Tribunal rule of law is pretty relaxed.  


That just says everything about the legal system in NZ doesn't it?

I haven't had anything to do with the Disputes Tribunal for a few years now but if this is the case how can anyone really know their rights? 


You dont, they do what is "fair" in their opinion, so a company can be totally within their rights legally and still get screwed over by the non judge running it. You arent even allowed to take representation which makes it a total farce IMO.




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  Reply # 305708 9-Mar-2010 16:09
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Dunnersfella:Do you have precedent for the ''Buy now on trademe is not an auction" aspect of your reply?
Surely the product was put on-line as part of an auction?
People bid on the product, and in this case, to win the auction - the Trademe user has used the 'Buy Now' function.
They've entered an auction and won...

I have heard that Commerce Commission don't like this, but I'm yet to see it hold up in court.
I'm just asking, as I would be fascinated to see how far the CC's powers reach.

As far as I am aware it hasn't reached the courts yet. However it probably has been decided in the Disputes Tribunal but the decisions there aren't published or reported so nobody would know. The interpretation that I have seen is as per consumer.org.nz. There are also other intrepretations possible however. I would think that a disputes tribunal referee is likely to use the consumer.org.nz intrepretation. Given that the Disputes Tribunal now has jurisdiction up to $15,000/$20,000 it might never reach the District Court.

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  Reply # 305711 9-Mar-2010 16:17
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sbiddle: That's certainly not my understanding (having known somebody who took up the same challenge). The CGA doesn't cover goods purchased via auction or from a private seller. This in effect means once a product has been resold by a private seller the new owner can have no claim under the CGA for the goods with the original company that sold the goods.

That is partially correct. The original retailer of the goods is no longer liable if they are resold by a consumer (not for business purposes or by auction/competitive tender) however the manufacturer is still liable. Refer s27 Consumer Guarantees Act.

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  Reply # 305915 10-Mar-2010 12:16
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That is partially correct. The original retailer of the goods is no longer liable if they are resold by a consumer (not for business purposes or by auction/competitive tender) however the manufacturer is still liable. Refer s27 Consumer Guarantees Act.


That section you refer to also says it has to be from a supplier, which is defined further down as

(a) means a person who, in trade,—

I wonder how the in trade part would be interpreted, would that mean a person in business - or simply selling a one-off item on trademe (or the newspaper to get away from the auction definition)

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  Reply # 305928 10-Mar-2010 12:48
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savag3: That is partially correct. The original retailer of the goods is no longer liable if they are resold by a consumer (not for business purposes or by auction/competitive tender) however the manufacturer is still liable. Refer s27 Consumer Guarantees Act.


What happens if the manufacturer is based in a different jurisdiction (i.e. South Korea)? Does their NZ distributor then become liable?

What if there is no NZ distribution agent and the goods were imported by the retailer? Does that create an exception to the rule that the retailer's liability ceases as soon as the goods are resold by the original purchaser?

It all sounds like a bit of a minefield to me.

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  Reply # 305942 10-Mar-2010 13:33
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alasta: What happens if the manufacturer is based in a different jurisdiction (i.e. South Korea)? Does their NZ distributor then become liable?

What if there is no NZ distribution agent and the goods were imported by the retailer? Does that create an exception to the rule that the retailer's liability ceases as soon as the goods are resold by the original purchaser?

It all sounds like a bit of a minefield to me.


Manufacturer is defined in s2 as:


Manufacturer means a person that carries on the business of assembling, producing, or processing goods, and includes—


(a) Any person that holds itself out to the public as the manufacturer of the goods:


(b) Any person that attaches its brand or mark or causes or permits its brand or mark to be attached, to the goods:

(c) Where goods are manufactured outside New Zealand and the foreign manufacturer of the goods does not have an ordinary place of business in New Zealand, a person that imports or distributes those goods:

Ordinary place of business in New Zealand, in relation to a manufacturer, does not include a New Zealand subsidiary of a foreign manufacturer



This means that if there is no NZ office for the manufacturer the importer of the goods (whether it is the NZ distributor or a parallel importer/retailer) is deemed to be the manufacturer of the goods. As far as i know the importer is the person whose name is on the Customs documentation for the goods when they were imported.

The CGA is actually quite complicated and can indeed be a bit of a minefield.

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