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  # 1467857 11-Jan-2016 18:55
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mattwnz:  
tdgeek:
gzt: I dont understand fully responsibilities of receivers. What is the legal situation with warranty on house brand sold by receivers in this period?


Interesting point. Even though its DSE branded, it still has a manufacturer, so if all goes pear shaped, a CGA issue would be with them.  Now, if the manufacturer doesn't have an office in NZ? 

If there was a warranty issue during receivership, I guess that's a recievers responsibility.


As there is no requirement for retailers to tell consumers if something is parallel imported or not (as far as I am aware), people may not have manufacturer CGA protection if a manufacturer in NZ claims that the goods weren't supplied by them, but an overseas based manufacturer. I presume a lot of the goods come from Australia directly, and the manufacturers in Oz possibly don't have to provide any CGA protection for NZ consumers. If you buy off a retailer on trademe who is based in Oz, but are in 'in trade' trader, there is likely no CGA protection either, even though you don't necessarily know you are buying from an overseas  based trader unless you look at their profile.


This also applies, which I wasn't aware of. 

 

Importers and distributors are treated as manufacturers under CGA

 

If you import or distribute goods that are manufactured outside New Zealand, you are directly responsible to NZ consumers as if you were the manufacturer yourself.

 

Outlet shops or other direct sellers are treated as retailers

 

If you manufacture or import goods but also sell them directly to the consumer (eg through an outlet shop), then you will be responsible for the retailers’ guarantees for the goods you sell in this way.

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  # 1467860 11-Jan-2016 19:07
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gzt: Well no, CGA is on the retailer as I understand it. Points above say the receiver is now the retailer but I'm not sure it is that simple.


The receiver has liability on post receivership costs. Googling didn't find anything about how a CGA issue would play out. DSE is the retailer, but under full control of the receiver, who takes full responsibilty for costs that they cause DSE. Example could be selling summit and not delivering, the receiver is liable, as they are managing the company. 
But a pretty grey area. (Until someone here clarifies!)

 
 
 
 


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  # 1467861 11-Jan-2016 19:08
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tdgeek:
mattwnz:  
tdgeek:
gzt: I dont understand fully responsibilities of receivers. What is the legal situation with warranty on house brand sold by receivers in this period?


Interesting point. Even though its DSE branded, it still has a manufacturer, so if all goes pear shaped, a CGA issue would be with them.  Now, if the manufacturer doesn't have an office in NZ? 

If there was a warranty issue during receivership, I guess that's a recievers responsibility.


As there is no requirement for retailers to tell consumers if something is parallel imported or not (as far as I am aware), people may not have manufacturer CGA protection if a manufacturer in NZ claims that the goods weren't supplied by them, but an overseas based manufacturer. I presume a lot of the goods come from Australia directly, and the manufacturers in Oz possibly don't have to provide any CGA protection for NZ consumers. If you buy off a retailer on trademe who is based in Oz, but are in 'in trade' trader, there is likely no CGA protection either, even though you don't necessarily know you are buying from an overseas  based trader unless you look at their profile.


This also applies, which I wasn't aware of.  Importers and distributors are treated as manufacturers under CGA If you import or distribute goods that are manufactured outside New Zealand, you are directly responsible to NZ consumers as if you were the manufacturer yourself. Outlet shops or other direct sellers are treated as retailers If you manufacture or import goods but also sell them directly to the consumer (eg through an outlet shop), then you will be responsible for the retailers’ guarantees for the goods you sell in this way.


I think some of these large overseas owned retailers (maybe DSE too?) were importing goods directly into NZ themselves, as potentially they can get better deals from Australia. So for those particular goods, I suspect there is no registered company involved at all in the distribution of the product.

gzt

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  # 1467884 11-Jan-2016 19:39
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I'm thinking the receivers are liable for warranty on house brand sold during this period. Not to mention CGA also. It is receivership not liquidation.

Buyers of house brand before receivership are probably out of luck here unless the new buyer yet to come decides to continue the warranty on goodwill. Could happen.

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  # 1467886 11-Jan-2016 19:41
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The Ferrier Hodgson letter which was never intended to be seen by customers answers this question:

https://imgur.com/a/FGY6g

Specifically,

I Purchased a Product on or Before 4th January 2016 and it is Faulty / No Longer Working. What Do I Do?

For branded products, please contact the manufacturer directly.

For Dick Smith branded products, you are now an unsecured creditor of DSE. Please contact Voluntary Administrators, McGrath Nicol to lodge your claim with them

gzt

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  # 1467906 11-Jan-2016 19:53
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You mean this customer FAQ on the Dick Smith Australia web site?

http://dicksmithholdings.com.au/wp-content/uploads/2016/01/Dick-Smith-Customer-FAQ-AU.pdf

NZ may have different laws and Dick Smith NZ may have different arrangements so I would be wary of thinking that will apply 100% in NZ but should be close.

The FAQ also talks about the third party extended warranty which is still valid.

Edit: imgr link looks like it may be sellotape to the DSE door ; ).

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  # 1468045 11-Jan-2016 22:23
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I see that NZ Consumer is now advising people not to buy on line from DS but only in person where they can take immediate delivery of the product....





 
 
 
 


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  # 1468051 11-Jan-2016 22:32
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Geektastic: I see that NZ Consumer is now advising people not to buy on line from DS but only in person where they can take immediate delivery of the product....


Yep, discussed previous page. Great way to reduce funds for the creditors by putting people off.

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  # 1468055 11-Jan-2016 22:36
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I wouldnt be buying anything more high tech than a cable or batteries from a place in their situation. Immediatly getting it or being couriered it doesnt matter, stuff that matters if it breaks is just too risky.




Richard rich.ms

gzt

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  # 1468061 11-Jan-2016 22:48
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Should be fine with name brands. No special knowledge but DSE do not parallel import those as far as I recall seeing.

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  # 1468064 11-Jan-2016 23:00
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richms: I wouldnt be buying anything more high tech than a cable or batteries from a place in their situation. Immediatly getting it or being couriered it doesnt matter, stuff that matters if it breaks is just too risky.


I won't be going near the place ever again. I always thought it pretty useless and now it's just a toxic brand.

Best just sold to someone to be erased from history now, to be honest, and become something new.





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  # 1468065 11-Jan-2016 23:13
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gzt: You mean this customer FAQ on the Dick Smith Australia web site?

http://dicksmithholdings.com.au/wp-content/uploads/2016/01/Dick-Smith-Customer-FAQ-AU.pdf

NZ may have different laws and Dick Smith NZ may have different arrangements so I would be wary of thinking that will apply 100% in NZ but should be close.

The FAQ also talks about the third party extended warranty which is still valid.

Edit: imgr link looks like it may be sellotape to the DSE door ; ).


No, I mean page one. I don't think they wanted the message telling the staff "that crap you sent in isn't getting repaired you idiots" getting out into the world.

But the FAQ is likely valid - if Dick Smith is the manufacturer, and they're in receivership, well you're probably screwed. It does seem interesting that they imply that they won't even repair broken products.

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  # 1468111 12-Jan-2016 02:06
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antonknee:


Furthermore, all transactions are now guaranteed by the receivers and Ferrier Hodgson are pretty serious. Orders now will be fulfilled by the receivers, just like the stock they are buying now is guaranteed by the receivers - so suppliers will get paid.


I don't want to be rude but I get troubled by non-lawyers (I'm a qualified lawyer but do not work in the area of receiverships) making bald assertions about legal issues that are, at best, controversial or at worst outright wrong.

You're right that the receivers are accepting personal liability for "....purchase of goods or services authorised by the Receivers or their representatives ....", in accordance with their circular to NZ creditors. But this relates to suppliers to DSE only. This when set against the background of s 32 of the Receiverships Act 1993 lacking any per se protections for consumers in this situation suggests that your assertion isn't quite correct. Look, I think Consumer NZ are probably slightly exaggerating the risk too as the receivers are unlikely to want to risk their own commercial reputation. But let's not start propagating myths in response either.

 



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  # 1468113 12-Jan-2016 02:54
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mattwnz:  

As there is no requirement for retailers to tell consumers if something is parallel imported or not (as far as I am aware), people may not have manufacturer CGA protection if a manufacturer in NZ claims that the goods weren't supplied by them, but an overseas based manufacturer. I presume a lot of the goods come from Australia directly, and the manufacturers in Oz possibly don't have to provide any CGA protection for NZ consumers. If you buy off a retailer on trademe who is based in Oz, but are in 'in trade' trader, there is likely no CGA protection either, even though you don't necessarily know you are buying from an overseas  based trader unless you look at their profile.


Good news, actually. New Zealanders are explicitly protected by Australian Consumer Law when purchasing from an Australian merchant, which is arguably stronger and more toothy than the Consumer Guarantees Act anyway.

dejadeadnz:

You're right that the receivers are accepting personal liability for "....purchase of goods or services authorised by the Receivers or their representatives ....", in accordance with their circular to NZ creditors. But this relates to suppliers to DSE only. This when set against the background of s 32 of the Receiverships Act 1993 lacking any per se protections for consumers in this situation suggests that your assertion isn't quite correct. Look, I think Consumer NZ are probably slightly exaggerating the risk too as the receivers are unlikely to want to risk their own commercial reputation. But let's not start propagating myths in response either.


You are aware that a sale is a pro-forma contract right? In which case my interpretation of s32.1(a) would indicate that the receiver takes liability for obligations under any sale contract entered into.

Side note, Ferrier Hodgson now has an NZ version of that Customer FAQ document:

http://www.ferrierhodgson.com/au/~/media/Ferrier/Files/Documents/Corp%20Recovery%20Matters/Dick%20Smith%20Holdings%20Limited%20and%20associated%20entities/Dick%20Smith%20Customer%20FAQs%20%20New%20Zealand.pdf

It's the same "screw you" the Australians get, really.

Oh, FYI, if you have Gift Cards, the administrators are actually willing to give you a vote at the creditors meeting. No really. You just need to fill in this long winded form located at http://www.mcgrathnicol.com/assignments/dick-smith-group-companies/ entitled "Proof of debt".

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  # 1468189 12-Jan-2016 08:51
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Kyanar: Ferrier Hodgson now has an NZ version of that Customer FAQ document:

http://www.ferrierhodgson.com/au/~/media/Ferrier/Files/Documents/Corp%20Recovery%20Matters/Dick%20Smith%20Holdings%20Limited%20and%20associated%20entities/Dick%20Smith%20Customer%20FAQs%20%20New%20Zealand.pdf

That document refers to the "Returns Policy" on the DickSmith website for purchases made after 5th January 2016.

Basically, the Policy suggests contacting the manufacturer of goods in the first instance, and gives a long list of contact details.  It also somewhat-grudingly admits that the Consumer Guarantees Act still applies, and that they are legally liable to assist; but I dare say in practice they won't be very helpful about it.

Final nail in coffin as far as I'm concerned - there is no point buying anything from the shop if you're going to be stuck with un-working product if it fails.  Previous experience suggests that contacting manufacturers directly is usually a futile uphill battle.   YMMV, of course.

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