Apple/JB Hi-fi and the Consumers Guarantee/Sale of Goods acts for commercial use

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dclegg

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#159926 17-Dec-2014 14:24

I have a top of the range Macbook Pro which I purchased approximately 14 months ago. It is starting to show indications there may be an issue with the SSD (but then again according to this KB, it could be a red herring).

I'm a software developer, and I use this laptop as my primary development machine. As such, I have concerns about whether I'll be able to get the Consumer Guarantees Act to apply to this situation, should there actually be an issue with the SSD. However, the Consumer Affairs website states the following :-

For ordinary goods that you are using for commercial purposes you may be covered by the Consumer Guarantees Act.

Check if the trader has contracted out of the Consumer Guarantees Act or the Sale of Goods Act by looking at:

any warranties or guarantees given with the goods
your contract
receipts or invoices.
Look for a statement such as “No other warranties either express or implied by law are made with respect to these goods” which will exclude the Sale of Goods Act.

The trader must specifically exclude the Consumer Guarantees Act to contract out of it, for example “if the goods are being purchased for a business purpose then the purchaser acknowledges that the Consumer Guarantees Act will not apply”. If it says this then your rights will be limited to what is in the warranty or contract.

I purchased the laptop from JB Hi-Fi, and the receipt doesn't have any language on it that would contract out of the Sale of Goods or Consumer Guarantees acts. The Important Product Information Guide that Apple ships with the MBP states

THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE (OR BY COUNTRY OR PROVINCE). OTHER THAN AS PERMITTED BY LAW, APPLE DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER RIGHTS YOU MAY HAVE, INCLUDING THOSE THAT MAY ARISE FROM THE NONCONFORMITY OF A SALES CONTRACT. FOR A FULL UNDERSTANDING OF YOUR RIGHTS YOU SHOULD CONSULT THE LAWS OF YOUR COUNTRY, PROVINCE OR STATE.

A copy of this (not sure if it has been updated much, but looks pretty similar to my hardcopy), can be seen here.

Based on all this, I think I have a pretty strong claim that Apple (or JB Hi-Fi) have not contracted out of their obligations under either the Sale of Goods or Consumer Guarantees acts.

Has anyone else here been in a similar situation, especially with a laptop or computer used for commercial development purposes (I'm a self-employed contractor, FWLIW)? And if so, did you have any luck pursuing a repair under CGA or SOG even though you were using it for paid work?

Edit: Inserted hyperlinks lost due to a cut/paste SNAFU

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#1199198 17-Dec-2014 14:42

Update: Extended diagnostics have just finished running. No SSD errors reported this time. So this conversation may all be academic at this point, although I'll still keen to hear of others experiences here.

chiefie

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#1199211 17-Dec-2014 14:56

Was it purchased under business entity and the GST claimed back? If so then it is a business asset and CGA won't cover But I'm not a lawyer, that's just seem to me like that.

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mattwnz

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#1199215 17-Dec-2014 14:59

Sale of goods act should apply, but not sure it that gives you the same sort of coverage.

dclegg

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#1199216 17-Dec-2014 14:59

chiefie: Was it purchased under business entity and the GST claimed back? If so then it is a business asset and CGA won't cover But I'm not a lawyer, that's just seem to me like that.

That was always my assumption too (and yes it was). But according to my layman's parsing of the Consumer website, the CGA has to be contracted out of (as does the Sale of Goods act), and it doesn't appear that this has happened in this case.

wellygary

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#1199306 17-Dec-2014 16:26

dclegg:
chiefie: Was it purchased under business entity and the GST claimed back? If so then it is a business asset and CGA won't cover But I'm not a lawyer, that's just seem to me like that.

That was always my assumption too (and yes it was). But according to my layman's parsing of the Consumer website, the CGA has to be contracted out of (as does the Sale of Goods act), and it doesn't appear that this has happened in this case.

JB's warranty form contains the following note

http://www.jbhifi.co.nz/images/2014/jb-nz-20141113-consumer-guarantees.pdf

JB Hi-Fi reserves the right to not provide a remedy in accordance with the JB Hi-Fi Minimum Voluntary Warranty Policy where the product has been used predominantly in a commercial or business environment or for commercial or business purposes and JB Hi-Fi has not, prior to purchase,

expressly advised that the product is designed for that environment or purpose. In such circumstances you may still have the rights against JB Hi-Fi under the CGA.

That sounds like a blanket "unless we tell you this is OK for business, its not OK for business"

Whether they use this to contract out of the CGA, and whether it is legal to contract out by "excluding contracting in" seems an interesting legal point,

Its also not clear whether this would even count, as I suspect its the first time you have seen that document- does the receipt refer to a warranty policy at all?

dclegg

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#1199327 17-Dec-2014 16:35

wellygary: JB's warranty form contains the following note

http://www.jbhifi.co.nz/images/2014/jb-nz-20141113-consumer-guarantees.pdf

JB Hi-Fi reserves the right to not provide a remedy in accordance with the JB Hi-Fi Minimum Voluntary Warranty Policy where the product has been used predominantly in a commercial or business environment or for commercial or business purposes and JB Hi-Fi has not, prior to purchase, expressly advised that the product is designed for that environment or purpose. In such circumstances you may still have the rights against JB Hi-Fi under the CGA.

That sounds like a blanket "unless we tell you this is OK for business, its not OK for business"
Whether they use this to contract out of the CGA, and whether it is legal to contract out by "excluding contracting in" seems an interesting legal point,

Its also not clear whether this would even count, as I suspect its the first time you have seen that document- does the receipt refer to a warranty policy at all?

Interesting. Especially the "In such circumstances you may still have the rights against JB Hi-Fi under the CGA." line.

Its also not clear whether this would even count, as I suspect its the first time you have seen that document- does the receipt refer to a warranty policy at all?

Indeed. Or is the onus still on me for not checking the website for this agreement prior to purchasing?

Touch wood, I don't have any need to pursue this further. Current indications are that my SSD is probably fine, and it was a false negative initially reported. Otherwise I think it could get quite messy.

Boeingflyer

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#1199403 17-Dec-2014 18:15

dclegg:
chiefie: Was it purchased under business entity and the GST claimed back? If so then it is a business asset and CGA won't cover But I'm not a lawyer, that's just seem to me like that.

That was always my assumption too (and yes it was). But according to my layman's parsing of the Consumer website, the CGA has to be contracted out of (as does the Sale of Goods act), and it doesn't appear that this has happened in this case.

Sorry i'm going to be the bad person here and this is not meant to be a personal attack but it is people like you that know full well that the consumer act is for personal consumers and not businesses but will still try it on with the retailer. All this does is make the retailer put their defence shields up against poor Joe blogs who has an actual claim because they have been burnt before.

You can't have it both ways, you have my tax payers money from claiming GST and then having the item depreciating at 30% a year etc etc and still think you should have the rights of the normal consumer.

Either choose to claim all the good stuff while your in business or have the extra protection of a consumer.

Rant over.

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#1199405 17-Dec-2014 18:23

I can't really see why a laptop should have less warranty if you use it for business than it does if you use it at home - and I am sure I read something somewhere that where the 'business use' is not materially different from home use (and typing is typing wherever you are) then it should be covered. Can't recall where I read that.

1) Get Apple Care next time - they don't care.

2) Say it was a gift for your son...or your wife used it at home.

Personally I think contracting out for this sort of thing should not be allowed really. Fair enough if it is something that will get extra munted in a work environment (say, buying a domestic cordless drill and using it 7 days a week as a builder) but a laptop being a laptop does not seem to me to fall into that.

dclegg

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#1199408 17-Dec-2014 18:31

Fabian:
dclegg:
chiefie: Was it purchased under business entity and the GST claimed back? If so then it is a business asset and CGA won't cover But I'm not a lawyer, that's just seem to me like that.

That was always my assumption too (and yes it was). But according to my layman's parsing of the Consumer website, the CGA has to be contracted out of (as does the Sale of Goods act), and it doesn't appear that this has happened in this case.

Sorry i'm going to be the bad person here and this is not meant to be a personal attack but it is people like you that know full well that the consumer act is for personal consumers and not businesses but will still try it on with the retailer. All this does is make the retailer put their defence shields up against poor Joe blogs who has an actual claim because they have been burnt before.

You can't have it both ways, you have my tax payers money from claiming GST and then having the item depreciating at 30% a year etc etc and still think you should have the rights of the normal consumer.

Either choose to claim all the good stuff while your in business or have the extra protection of a consumer.

Rant over.

While you make some valid points, the crux of the matter for me is that if I pay $4000 for a laptop, I don't expect it to be failing after 14 months of use. If JB Hi-Fi or Apple are also of the opinion that a high end Mac Book Pro should last a lot longer than this, even when used 8 hours a day, and are willing to address this fault gratis because of this, is that as morally wrong as you seem to be framing it as?

What I will say though, is I would not necessarily take it up with the retailer. I bill by the hour, so my time is literally money. It may make more financial sense to procure a new SSD and slot that in instead. This thread was posted with the intention of giving me all the information to make an informed decision.

Boeingflyer

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#1199410 17-Dec-2014 18:37

But you are covered under the sales of goods act.

RunningMan

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#1199415 17-Dec-2014 18:43

Fabian: Sorry i'm going to be the bad person here and this is not meant to be a personal attack but it is people like you that know full well that the consumer act is for personal consumers and not businesses but will still try it on with the retailer.

It's not that easy to read but according to the Act this doesn't look to be quite the case. IANAL but it seems as if it wouldn't apply only if both parties agreed to this in writing.

http://www.legislation.govt.nz/act/public/1993/0091/latest/DLM312859.html?search=ts_act%40bill%40regulation%40deemedreg_Consumer_resel_25_a&p=1

Boeingflyer

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#1199422 17-Dec-2014 18:52

Just dug up my old uni papers and books. This is a consumer guarantees act. Under section 2 a consumer is defines as:

consumer means a person who—

(a)acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption; and

(b)does not acquire the goods or services, or hold himself or herself out as acquiring the goods or services, for the purpose of—
- (i)resupplying them in trade; or
- (ii)consuming them in the course of a process of production or manufacture; or
- (iii)in the case of goods, repairing or treating in trade other goods or fixtures on land

that is where the business catch is for businesses.

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#1199441 17-Dec-2014 19:10

Fabian: Just dug up my old uni papers and books. This is a consumer guarantees act. Under section 2 a consumer is defines as:

consumer means a person who—

(a)acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption; and

(b)does not acquire the goods or services, or hold himself or herself out as acquiring the goods or services, for the purpose of—

(i)resupplying them in trade; or

(ii)consuming them in the course of a process of production or manufacture; or

(iii)in the case of goods, repairing or treating in trade other goods or fixtures on land

that is where the business catch is for businesses.

I would say a top of the line Macbook Pro is not intended to be something acquired for home use. It was defined and built as a professional tool. Even the name says so.

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#1200113 18-Dec-2014 18:52

The first half of the definition of consumer is very wide; so long as people would buy the item for personal use it will generally satisfy the first half.

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#1200118 18-Dec-2014 19:21

I think laptops can easily be dual purpose say 50% personal use 50% business, hence the CGA can still apply.
Plus as the name suggests the MacBook is a professional device.

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