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woodson

230 posts

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#311721 9-Feb-2024 14:03
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Recently sent back a dead Surface Pro 8 to a well known, mostly online, electronics and technology retailer. Warranty was almost up, so we were relieved that at least we could still get it fixed/replaced without cost. Two and a half weeks later I get an email saying that it had been totally replaced. (Interestingly, when I asked, for my own interest, what the issue with the device had been, the reply was "Unfortunately this service report is with Microsoft, which we can't typically request for."). Courier turns up today, and I open the outer box, to find the original Surface packaging I had sent the device back in, and inside was a fresh clean looking tablet, wrapped in the original paper sheath thing I had sent it back in. So, clearly not a brand new device. How can they do this? 

 

 

 

So, if this is a used/floor model, what is to say it might have issues in a few months, but which time we have no recourse to return it?

 

 

 

I'm emailing them of course, but interested to hear others similar thoughts and experiences. Thanks!


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scuwp
3778 posts

Uber Geek


  #3192880 9-Feb-2024 14:29
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The warranty terms are pretty clear.  I don't think this contravenes any NZ consumer law. As long as it's in good repair, at least the same as your original one, then not seeing the issue.    

 

6. Microsoft’s Responsibility
(a) If Microsoft determines that the Microsoft Product malfunctioned under Normal Use
Conditions during the warranty period due to a defect in materials or workmanship,
Microsoft will (at its option) repair or replace it or the defective part, or refund the
purchase price in exchange for the return of the Microsoft Product, unless a mandatory
provision of your local law provides otherwise. Goods presented for repair may be
replaced by refurbished goods of the same type rather than being repaired. Refurbished
parts may be used to repair the goods. Repair facilities and spare parts may not be
available. When replacing the unit, Microsoft may use either the same unit model or, if
unavailable, the model nearest to the original model’s form, functionality, performance,
and color, in Microsoft’s sole discretion. The Microsoft Product or all parts of your
Microsoft Product that Microsoft has replaced become Microsoft’s property.





Never attribute to malice that which is adequately explained by stupidity - Robert J Hanlon



 
 
 

Shop Mighty Ape for electronics, games, computers books and more (affiliate link).
Qazzy03
292 posts

Ultimate Geek


  #3192881 9-Feb-2024 14:31
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Is there an issue with the replacement item?

 

You advise did the replacement was a "fresh clean looking tablet".

 

Unfortunately the CGA doesn't go into if refurbishment is acceptable as a replacement of the product.

 

Information on your rights for CGA:

 

https://comcom.govt.nz/consumers/dealing-with-typical-situations/returns-and-refunds

 

https://www.consumerprotection.govt.nz/assets/PDFs/booklet-your-consumer-rights-products.pdf

 

If a product has a minor fault, the retailer can choose to repair the item, replace it, or refund your money.

 

But if a product has a major fault, it’s your choice whether you get a replacement or refund.
A major fault means a reasonable consumer wouldn't have bought the product if they'd known about the problem.

 

Unless the Surface model has a known major fault, I assume the retailer is within their rights to offer a replacement, due to its age,
I would say refurbishment of same or better quality fits within the spirit of the CGA.

 

Edit:

 

This is not legal advice and I am not a lawyer, It would be good to know other prespectives though, it could be worth talking to your local CAB.

 

https://www.cab.org.nz/search/tag:%22Fair+Trading+Act+and+Consumer+Guarantees+Act%22

 

 

 

 


MikeB4
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  #3192884 9-Feb-2024 14:36
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scuwp:

 

The warranty terms are pretty clear.  I don't think this contravenes any NZ consumer law. As long as it's in good repair, at least the same as your original one, then not seeing the issue.    

 

6. Microsoft’s Responsibility
(a) If Microsoft determines that the Microsoft Product malfunctioned under Normal Use
Conditions during the warranty period due to a defect in materials or workmanship,
Microsoft will (at its option) repair or replace it or the defective part, or refund the
purchase price in exchange for the return of the Microsoft Product, unless a mandatory
provision of your local law provides otherwise. Goods presented for repair may be
replaced by refurbished goods of the same type rather than being repaired. Refurbished
parts may be used to repair the goods. Repair facilities and spare parts may not be
available. When replacing the unit, Microsoft may use either the same unit model or, if
unavailable, the model nearest to the original model’s form, functionality, performance,
and color, in Microsoft’s sole discretion. The Microsoft Product or all parts of your
Microsoft Product that Microsoft has replaced become Microsoft’s property.

 

 

If this a consumer purchase the options are lay with the purchaser. MSFT either directly or through their reseller cannot contract out of NZ law. In this the section 23 of the CGA




mattwnz
19480 posts

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  #3192885 9-Feb-2024 14:41
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Was is a substantial fault or failure?

woodson

230 posts

Master Geek


  #3192893 9-Feb-2024 15:04
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Thanks for all the replies, and links. 


scuwp
3778 posts

Uber Geek


  #3192895 9-Feb-2024 15:08
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MikeB4:

 

If this a consumer purchase the options are lay with the purchaser. MSFT either directly or through their reseller cannot contract out of NZ law. In this the section 23 of the CGA

 

 

That's not entirely correct, only if it is a substantial fault, otherwise the decision lays with the retailer/manufacturer.  As the retailer can't say what the fault was, unsure where you would go with that, or where you would begin to build a case to argue for a refund instead.    

 

I may be reading into the OP a bit, but the warranty period doesn't reset upon repair/replacement, and so was going to be out of warranty soon anyway.  I believe MS provide a 90 day warranty on repairs/replacement (but don't quote me) and then there is a CGA anyway.  

 

 





Never attribute to malice that which is adequately explained by stupidity - Robert J Hanlon



woodson

230 posts

Master Geek


  #3192899 9-Feb-2024 15:16
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scuwp:

 

MikeB4:

 

If this a consumer purchase the options are lay with the purchaser. MSFT either directly or through their reseller cannot contract out of NZ law. In this the section 23 of the CGA

 

 

That's not entirely correct, only if it is a substantial fault, otherwise the decision lays with the retailer/manufacturer.  As the retailer can't say what the fault was, unsure where you would go with that, or where you would begin to build a case to argue for a refund instead.    

 

I may be reading into the OP a bit, but the warranty period doesn't reset upon repair/replacement, and so was going to be out of warranty soon anyway.  I believe MS provide a 90 day warranty on repairs/replacement (but don't quote me) and then there is a CGA anyway.  

 

 

 

 

 

 

Correct - warranty was nearly at an end when the device went kaputt and was RMA's. In the email the retailer sent informing me that it was being replaced they state "The items warranty is still valid from the original purchase date." - which is neither here no there now, as the warranty period is over.

 

 

 

Maybe everything will be fine, but I just find it rather irking that an item like this with a hefty price tag, dies and is replaced with who knows what (floor model/refurb?).




Qazzy03
292 posts

Ultimate Geek


  #3192907 9-Feb-2024 16:04
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Personally I would feel stoked to get a refurbished model rather than my original that had been quickly repaired. Refurbished models by Microsoft and Apple are usually to a high quality standard and I would feel more confident the issue was resolved. Unless there was a fault with the entire series. 

However that is just my 2 cents.


mattwnz
19480 posts

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  #3192908 9-Feb-2024 16:11
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woodson:

 

 

 

Maybe everything will be fine, but I just find it rather irking that an item like this with a hefty price tag, dies and is replaced with who knows what (floor model/refurb?).

 

 

 

 

IANAL, but if you purchased for personal use then you should still have the CGA, depending on how long the manufacturers warranty was.

 

 

 

From personal experience, a computer company replaced my LCD monitor which developed vertical lines down it under an extended warranty,  with a refurbished but newer model, and 8 years later it is still running fine. 


Handle9
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  #3192997 9-Feb-2024 19:22
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mattwnz: Was is a substantial fault or failure?

 

Yes. It was dead. That is by definitiion a substantial fault.

 

A substantial fault refers to the abiltiy of the consumer to use the product. A reasonable consumer would not have aquired a laptop/tablet that does not switch on.

 

  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; or

 

(d) the goods are not of acceptable quality within the meaning of section 7 because they are unsafe.


Handle9
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  #3193000 9-Feb-2024 19:28
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woodson:

 

scuwp:

 

That's not entirely correct, only if it is a substantial fault, otherwise the decision lays with the retailer/manufacturer.  As the retailer can't say what the fault was, unsure where you would go with that, or where you would begin to build a case to argue for a refund instead.    

 

I may be reading into the OP a bit, but the warranty period doesn't reset upon repair/replacement, and so was going to be out of warranty soon anyway.  I believe MS provide a 90 day warranty on repairs/replacement (but don't quote me) and then there is a CGA anyway.  

 

 

Correct - warranty was nearly at an end when the device went kaputt and was RMA's. In the email the retailer sent informing me that it was being replaced they state "The items warranty is still valid from the original purchase date." - which is neither here no there now, as the warranty period is over.

 

Maybe everything will be fine, but I just find it rather irking that an item like this with a hefty price tag, dies and is replaced with who knows what (floor model/refurb?).

 

 

The CGA is silent on whether a replacement needs to be entirely new. At that point it comes back to the "reasonable person" test which means that would a reasonable person find the replacement to be a reasonable solution to the issue.

 

If the tablet appears to be entirely new, and is of the same quality or better than the Surface it replaces then I would suggest a reasonable person would consider this to be a reasonable remedy.

 

You are in a position that is no worse than you were before the surface failed and still have CGA coverage. Even if a brand new device was supplied your warranty and CGA coverage does not reset back to zero - it's from the purchase date not when the replacement was supplied. There is no obligation for the manufacturer or retailer to endlessly replace failed units, only that the unit lasts a reasonable period of time from when it was purchased.

 

This is all somewhat subjective but I doubt you'll have much luck fighting it. It seems that Microsoft has acted reasonably and without any attempt to avoid their obligations.


Qazzy03
292 posts

Ultimate Geek


  #3193002 9-Feb-2024 19:35
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Handle9:

 

  21 Failure of substantial character

 

 

IANAL but reading through section 21: a), b), c)  and d) I personally would struggle to make a case with any of those for this particular issue.  

 

However not a lawyer and there will be those with more experience than myself with the CGA. 

 

 

 

 


Handle9
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  #3193005 9-Feb-2024 19:48
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Qazzy03:

 

Handle9:

 

  21 Failure of substantial character

 

 

IANAL but reading through section 21: a), b), c)  and d) I personally would struggle to make a case with any of those for this particular issue.  

 

However not a lawyer and there will be those with more experience than myself with the CGA. 

 

 

Would you, or a reasonable consumer, buy a laptop that does not switch on?

 

 


Qazzy03
292 posts

Ultimate Geek


  #3193058 9-Feb-2024 22:17
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Handle9:

 

Would you, or a reasonable consumer, buy a laptop that does not switch on?

 

 

It sounds like you would make a case under subsection a) as I don't think b), c) or d) would fit. 

 

(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure;

 

As we do not know the nature and extent of the failure and, that this specific failure is something wide spread against the majority of that particular Windows Surface model, I would say there isn't enough information to bring a case that any "reasonable consumer" would not have purchased or acquired the goods. 

 

I would say it is reasonable that some products fail from time to time, hence the protections such as warranties and CGA. 
In this particular case I do not know it there is a fault that would be wide spread enough to cause a "reasonable consumer" not to purchase this particular product. 

 

Significant faults that I would point to off the top of my head that would fall under subsection a) would be:

 

  •  Xbox 360 red ring of death and,
  • Samsungs exloding Note 7. 

To me at least...a product not switching on in itself would not meet my interpretation to apply subsection a) or any of the other clauses.

 

Like i said I am not a lawyer.
Do not take this as legal advice.
Do not take this as someone familiar or experince in the CGA legislation and its practical applications or how a CGA complaint would be handled.
I could be widely incorrect here on how I am reading this specific peice of legislation.

 

There is a short four step quiz, link below on how the CGA should be applied in most cases. 

 

https://www.consumerprotection.govt.nz/general-help/consumer-rights-finder/products/?decisionpathway=24%2C15%2C13%2C8

 

Basically it outlines the following:

 

Give the seller a chance to fix the issue. It’s their choice to either:

 

  • repair the product
  • replace the product
  • refund the price you paid in full.

If the seller refuses to give you a remedy for a genuine fault, or takes longer than a reasonable time to act, it becomes a major issue.

 

You can then choose a refund or replacement.

 

There is a mechanism for someone to make a complaint and additional steps that it could take.


Handle9
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  #3193061 9-Feb-2024 22:36
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Qazzy03:

Handle9:


Would you, or a reasonable consumer, buy a laptop that does not switch on?



It sounds like you would make a case under subsection a) as I don't think b), c) or d) would fit. 


(a) the goods would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure;


As we do not know the nature and extent of the failure and, that this specific failure is something wide spread against the majority of that particular Windows Surface model, I would say there isn't enough information to bring a case that any "reasonable consumer" would not have purchased or acquired the goods. 


I would say it is reasonable that some products fail from time to time, hence the protections such as warranties and CGA. 
In this particular case I do not know it there is a fault that would be wide spread enough to cause a "reasonable consumer" not to purchase this particular product. 


Significant faults that I would point to off the top of my head that would fall under subsection a) would be:



  •  Xbox 360 red ring of death and,

  • Samsungs exloding Note 7. 


To me at least...a product not switching on in itself would not meet my interpretation to apply subsection a) or any of the other clauses.


Like i said I am not a lawyer.
Do not take this as legal advice.
Do not take this as someone familiar or experince in the CGA legislation and its practical applications or how a CGA complaint would be handled.
I could be widely incorrect here on how I am reading this specific peice of legislation.


There is a short four step quiz, link below on how the CGA should be applied in most cases. 


https://www.consumerprotection.govt.nz/general-help/consumer-rights-finder/products/?decisionpathway=24%2C15%2C13%2C8


Basically it outlines the following:


Give the seller a chance to fix the issue. It’s their choice to either:



  • repair the product

  • replace the product

  • refund the price you paid in full.


If the seller refuses to give you a remedy for a genuine fault, or takes longer than a reasonable time to act, it becomes a major issue.


You can then choose a refund or replacement.


There is a mechanism for someone to make a complaint and additional steps that it could take.



You’re overthinking it. It doesn’t have to be a widespread fault. The fault is with regard to the product the consumer owns.

No reasonable consumer would buy a laptop that doesn’t switch on. It is a large paperweight that can not be used for its intended purpose. The fault is therefore of substantial nature.

The other side of this is if it’s a minor fault the supplier is entitled to fix it. If it’s a faulty indicator light on a car you can still use it as a car. It’s entirely reasonable that the supplier is entitled to fix it rather than the consumer reject the car.

This stuff doesn’t require the consumer to undertake a market study or deep analysis, the basic premise of the legislation is reasonableness.

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