Consumer Guarantees Act: Right of replacement

Forums › Off topic › Consumer Guarantees Act: Right of replacement

aiyaznz

43 posts

Geek

#208270 4-Feb-2017 08:38

Hi everyone

I purchased a New Sony 65x9300D from Noel Leeming a month and half ago and suddenly the tv has broken down and only flashes a red light. My dad had contacted Noel Leeming asking for a replacement and they had said that it was up to Sony to deem that. They are going to pickup the TV next week sometime to repair it but I want this TV to be replaced. Do I have a right to demand that? I mean I paid good money for this expensive TV and dont want a repair. If a product is faulty, dont I have right to get a replacement? What right do I have to refuse repair and demand replacement? Does the seller have the right to refuse my demand of replacement? thanks

1 | 2 | 3 | 4

20575 posts

Uber Geek

Trusted

Lifetime subscriber

#1715249 4-Feb-2017 08:41

No, you can't demand a replacement. The retailer has the right to fix, so long as it's done within a reasonable time. Information here.

Lias

5589 posts

Uber Geek

ID Verified

Trusted

Lifetime subscriber

#1715257 4-Feb-2017 09:05

timmmay:

No, you can't demand a replacement. The retailer has the right to fix, so long as it's done within a reasonable time. Information here.

Most people would consider total failure at 6 weeks to be a substantial failure as defined in the act. OP almost certainly DOES have the right to demand replacement or refund, but no doubt the large chain store will fight it to the bitter end, as they inevitably do.

I'm a geek, a gamer, a dad, a Quic user, and an IT Professional. I have a full rack home lab, size 15 feet, an epic beard and Asperger's. I'm a bit of a Cypherpunk, who believes information wants to be free and the Net interprets censorship as damage and routes around it. If you use my Quic signup you can also use the code R570394EKGIZ8 for free setup.

gregmcc

2147 posts

Uber Geek

ID Verified

Trusted

Lifetime subscriber

#1715270 4-Feb-2017 09:38

aiyaznz:

Hi everyone

I purchased a New Sony 65x9300D from Noel Leeming a month and half ago and suddenly the tv has broken down and only flashes a red light. My dad had contacted Noel Leeming asking for a replacement and they had said that it was up to Sony to deem that. They are going to pickup the TV next week sometime to repair it but I want this TV to be replaced. Do I have a right to demand that? I mean I paid good money for this expensive TV and dont want a repair. If a product is faulty, dont I have right to get a replacement? What right do I have to refuse repair and demand replacement? Does the seller have the right to refuse my demand of replacement? thanks

At this point it's hard to demand a new TV, but once it comes back from repair you can refuse to accecpt it as it is a "Used 2nd hand repaired TV", you could negotiate a settlement to compensate for the reduced value of the TV that is 45 days old.

Maybe you should also have a good read of Sony's policy on repair/replacement, there may be something in there about when they will replace or repair

Linux

11399 posts

Uber Geek

Trusted

Lifetime subscriber

#1715271 4-Feb-2017 09:41

Lias:
timmmay:

No, you can't demand a replacement. The retailer has the right to fix, so long as it's done within a reasonable time. Information here.

Most people would consider total failure at 6 weeks to be a substantial failure as defined in the act. OP almost certainly DOES have the right to demand replacement or refund, but no doubt the large chain store will fight it to the bitter end, as they inevitably do.

No I don't agree they can't demand a replacement under the CGA retailer can take TV for inspection & repair

Linux

aiyaznz

43 posts

Geek

#1715282 4-Feb-2017 10:05

I saw this in the CGA

If there is a serious problem with the product

You can legally:

keep the product and claim compensation for the loss in value
reject the product and get an identical replacement
reject the product and ask for a full refund.

A credit note is not the same as providing a cash refund. If you have rejected products because of a serious problem and asked for a refund, you don't have to accept a credit note or an exchange of products instead of cash.

A problem with products is serious if:

a reasonable consumer would not have bought the products if they had known about the fault(Dah)
products are significantly different from their description, sample, or demonstration model (As in it doesnt bloody turn ON)
products are not fit for their normal or specific purpose and cannot easily be put right (I cant repair it myself now can I, but why should I have to?)
the products are unsafe.

Some relevant factors to look at when deciding if a fault is serious or not include:

if you have only had the products for a short time then the fault is more likely to be serious
the more expensive a product is, the more likely it is that the fault may be serious
any claims made in the advertising, packaging or made by the seller
if there have been any other faults -then this fault is more likely to be serious.

I just went throught the bravia warranty policy and it states the following "

1.4 Products presented for repair may be replaced by refurbished products of the same type rather than being repaired. Refurbished parts may be used to repair the products. Replacement of the product or a part does not extend or restart the Warranty Term."

This is complete bonkers as there using refurbished parts and not new. Regretting getting this TV. I think I will be taking this further with Disputes tribunal or District Court.

macuser

2120 posts

Uber Geek

#1715283 4-Feb-2017 10:06

Linux:
Lias:
timmmay:

No, you can't demand a replacement. The retailer has the right to fix, so long as it's done within a reasonable time. Information here.

Most people would consider total failure at 6 weeks to be a substantial failure as defined in the act. OP almost certainly DOES have the right to demand replacement or refund, but no doubt the large chain store will fight it to the bitter end, as they inevitably do.

No I don't agree they can't demand a replacement under the CGA retailer can take TV for inspection & repair

Linux

Timmmay and Linux are 100% correct. The retailer is able to make their choice how they fix the goods in the first instance (be it repair, replace or refund). If the retailer fails to rectify the issue then you are able to make a choice (repair, replace or refund).

What you're asking the retailer is unreasonable. If you want to return the TV for a refund (because you generally don't like they TV) I would return it based on all the bugs that Android TV has (there are heaps). If your TV doesn't have Android 6.0 on it yet, the TV ALWAYS displays video stretched. It's a bug in their firmware. That issue the retailer and Sony can't fix (because the firmware isn't out yet). Stick to returning it based on these bugs)

JayADee

2148 posts

Uber Geek

#1715289 4-Feb-2017 10:19

The wording from https://www.consumer.org.nz/articles/consumer-guarantees-act...

'If the problem can’t be fixed, or can’t be put right within a reasonable time, or is substantial, you can:

Reject the product and choose a replacement of the same type and similar value or a full refund of your purchase price; or
Claim compensation for any drop in the value of the product or service.
Cancel the service contract, pay for any satisfactory work already done, and get someone else to finish the repairs; or
Have it repaired elsewhere and recover the costs from the retailer, if they refuse to fix a faulty product, or fail to do so in a reasonable time.
When you have the right to reject the goods, sellers cannot just offer a credit note. If you want a refund, you are entitled to it – by cash, cheque or credit card charge reversal.

Substantial means:

A reasonable consumer wouldn’t have bought the goods if they’d known about the fault.
The goods are significantly different from their description, sample or demonstration model.
The goods are substantially unfit for purpose.
The goods are unsafe.'

...suggests that they can give you a fixed one unless the problem is substantial and under substantial, unfit for purpose seems to be the only one that applies but if the tv works ok as a tv is supposed to then it isn't unfit for it's purpose. It isn't like you bought scuba gear that then can't be used under water.

On the other hand, didn't I read a post on here someplace about a refurbished iPhone not being deemed a sufficiently good enough replacement for an iPhone that didn't work and the poster ended up with a new one?

Edit: good point by macuser. You'd have to return it based on either something they could not fix or on a feature you were told it had that you purchased it for that it does not have.

Equinox IT

Cloud spending continues to surge globally, but most organisations haven’t made the changes necessary to maximise the value and cost-efficiency benefits of their cloud investments. Download the whitepaper From Overspend to Advantage now.

JayADee

2148 posts

Uber Geek

#1715291 4-Feb-2017 10:33

I'd like to suggest you contact the manager of the Noel Leeming you are dealing with and calmly point out why you would be unhappy with a repaired product and tell the manager you want a replacement, even if you already had a conversation about it. When I have to do this kind of stuff I keep a written list next to me so I remember everything I want to say. Or you could email if you are better at writing then follow up with a phone call.

tdgeek

29743 posts

Uber Geek

Trusted

Lifetime subscriber

#1715293 4-Feb-2017 10:37

It can't be determined if its a serious fault. It may well be a small failure in a wire or component, and it gets fixed.

Dratsab

3946 posts

Uber Geek

Trusted

Lifetime subscriber

#1715299 4-Feb-2017 10:41

Your TV has been working for around six weeks prior to a fault developing. Until it has been inspected by a suitably qualified person it is unknown if the fault is substantial or not. Simply not turning on does not necessarily indicate a substantial fault - the fault could lie in a small, easily replaced part. I understand your feelings of annoyance, I would have them too, but you're jumping the gun a little here by instantly demanding a replacement.

Lias: Most people would consider total failure at 6 weeks to be a substantial failure as defined in the act. OP almost certainly DOES have the right to demand replacement or refund, but no doubt the large chain store will fight it to the bitter end, as they inevitably do.

Perhaps you can furnish a copy of your inspection report to support your assertion of 'total failure'?

EDIT: Beaten to the punch by tdgeek...

tdgeek

29743 posts

Uber Geek

Trusted

Lifetime subscriber

#1715301 4-Feb-2017 10:46

Dratsab:

Your TV has been working for around six weeks prior to a fault developing. Until it has been inspected by a suitably qualified person it is unknown if the fault is substantial or not. Simply not turning on does not necessarily indicate a substantial fault - the fault could lie in a small, easily replaced part. I understand your feelings of annoyance, I would have them too, but you're jumping the gun a little here by instantly demanding a replacement.

Lias: Most people would consider total failure at 6 weeks to be a substantial failure as defined in the act. OP almost certainly DOES have the right to demand replacement or refund, but no doubt the large chain store will fight it to the bitter end, as they inevitably do.

Perhaps you can furnish a copy of your inspection report to support your assertion of 'total failure'?

EDIT: Beaten to the punch by tdgeek...

Thats ok, we can share the spoils of this thread, which is now resolved!

MikeB4

18435 posts

Uber Geek

ID Verified

Trusted

#1715323 4-Feb-2017 11:10

It's always best to get an experts take It would be interesting to get a Lawyers opinion on this. @dejadeadnz

tdgeek

29743 posts

Uber Geek

Trusted

Lifetime subscriber

#1715324 4-Feb-2017 11:16

MikeB4:

It's always best to get an experts take It would be interesting to get a Lawyers opinion on this. @dejadeadnz

I agree. I'm not sure what Deja can add at this point, as we have no information, apart that the TV failed, and an inspection is being undertaken next week. Step 1 of a few steps hasn't been taken yet. These CGA issues are typically after a few steps have occurred.

dejadeadnz

2394 posts

Uber Geek
Inactive user

#1715337 4-Feb-2017 12:05

timmmay:

No, you can't demand a replacement. The retailer has the right to fix, so long as it's done within a reasonable time. Information here.

It really pays to actually read what you reference to or, even better, an actually highly readable and simple to understand legislation that is the Consumer Guarantees Act if you are going to give advice. And your advice is wrong.

The amount of misinformation, most of which coming from the usual IT/geek forum crowd who just loves to jump on the consumer, is quite staggering. Section 18 of the CGA relevantly states:

18 Options against suppliers where goods do not comply with guarantees

(1)Where a consumer has a right of redress against the supplier in accordance with this Part in respect of the failure of any goods to comply with a guarantee, the consumer may exercise the following remedies.

(2)Where the failure can be remedied, the consumer may

(a)require the supplier to remedy the failure within a reasonable time in accordance with section 19;

(b)where a supplier who has been required to remedy a failure refuses or neglects to do so, or does not succeed in doing so within a reasonable time,—

(3)Where the failure cannot be remedied or is of a substantial character within the meaning of section 21, the consumer may—

(a)subject to section 20, reject the goods in accordance with section 22

Where lazy people always trip themselves up is when they read articles or the actual s 18 and note only subsections (1) and (2) and seize upon the idea the the retailer or manufacturer is entitled to time to remedy all faults. They are not. Section 18 even helps people by not doing the usual awful legislative drafting where an important term is buried within a definition section unannounced. In this case, we know that s 21 can help us.

Section 21 relevantly states:

21 Failure of substantial character

For the purposes of section 18(3), a failure to comply with a guarantee is of a substantial character in any case where—

(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 1 or more significant respects from the description by which they were supplied or, where they were supplied by reference to a sample or demonstration model, from the sample or demonstration model; or

(c) the goods are substantially unfit for a purpose for which goods of the type in question are commonly supplied or, where section 8(1) applies, the goods are unfit for a particular purpose made known to the supplier or represented by the supplier to be a purpose for which the goods would be fit, and the goods cannot easily and within a reasonable time be remedied to make them fit for such purpose;

Lias was right that most reasonable people would not consider a TV that doesn't turn on or work as a TV to have a failure of a substantial character based on the s 21 test. The test is not, as Drastab and others would have it, about whether there is a failure of a technically substantial component, e.g. whether the failure to turn on is the result of a blown fuse or, say, the main circuit board. IMO, the OP is absolutely well within his rights to demand a refund given that he is entitled to reject the TV under s 22. Section 20, which acts as a bar to the exercise of a right to reject a good that has substantially failed, only applies if the OP fails to exercise his/her rights within reasonable time, that the goods were damaged after delivery (in a manner not relating to their original state at supply stage) etc.

In practical terms, what the OP is up against is the profound ignorance of the CGA by most people (as evident here) and that essentially all litigations occurring under the CGA are done within the Disputes Tribunal setting, which does not publicise its decisions. But any DT referee (most of whom are lawyers) would follow my line of reasoning. What the OP should do is firmly speak to the call centre or write to Noel Leeming's HQ, demanding the case to be forwarded to the in-house compliance manager or legal counsel. Your average retail manager amateur on $20 an hour, who either lacks the motivation to learn the real law or has been deliberately fed a long line of misinformation to bat away those customers with lower levels of motivation, are unlikely to help. But if you politely stand your ground, you'll eventually get to people who'll conclude that the adverse publicity and being seen as trying to deviate from the law isn't worth it. Noel Leeming also has a Facebook page. Politely write on their wall (feel free to adopt any of the reasoning here) and shame them.

mattwnz

20141 posts

Uber Geek

#1715357 4-Feb-2017 12:57

I would still think that the retailer has the right to get it checked, as it could be either user error or fault. eg The buyer may have dropped it, or damaged it some other way. It is actually likely that it will just be replaced anyway, being so new, and the effort required to repair it. Mobile phones as a clear case of the retailer almost never allowing a straight replacement, even on a brand new week old phone.

IANAL. However IMO it all depends on what has failed, to be considered 'substantial' But first it needs to be assessed. For example the power cord may have been bitten by the owners dog. Ask them to contact you once that has been done, to see if it is a substantial failure or not. It has to also be done in a timely manner. You could also ask for a loan tv while it is being repaired, as a repair inconveniences you more than a replacement, as it will likely take longer. eg if they were replacing it, you would unlikely be without the TV for long. During that time they have also got your money and product, so if the business went under you could likely lose both TV and money. I know people who have had this problem before. So there is a risk there.

1 | 2 | 3 | 4