The Law Handbook 2024

Chapter 7.2: Consumer protection laws 701 if it is more than the amount permitted in the RBA standard (s 55B C&C Act). The ACCC is empowered to enforce the ban. For example, in July 2018, the ACCC took action against Europcar alleging that customers who used Visa or MasterCard credit cards were charged fees above what it cost Europcar to accept those payments. Lay-by sales What is a lay-by sale? A lay-by agreement is one where goods are delivered to the consumer only when the total price of the goods has been paid, and the transaction involves payments spread over at least three instalments (including any deposit). This constitutes a lay-by agreement, unless both the consumer and supplier agree that an agreement involving two payments is a lay-by agreement. The ACL’s lay-by rules The ACL sets out five rules about lay-bys: 1 A lay-by agreement must be in writing, a copy of which must be given to the consumer (s 96 ACL). 2 A consumer may cancel a lay-by agreement at any time, after paying any termination charge, which must not be more than the reasonable costs incurred by the supplier (s 97 ACL). 3 A supplier may cancel a lay-by agreement only if: i the consumer has breached a term of the agreement; ii the supplier is ceasing to engage in trade or commerce; or iii the goods are no longer available (s 98 ACL). 4 In the event of cancellation by either party, the consumer is entitled to a full refund of amounts paid (s 99(1) ACL). 5 Where a consumer cancels a lay-by agreement, the supplier is entitled to recover a reasonable termination charge. This amount may be withheld from any money repaid to a consumer or recovered from the consumer if the total amount paid by the consumer under the lay-by agreement is not enough to cover it (s 99(2) ACL). Buy now, pay later sales Lay-by arrangements are no longer widely promoted. Instead, retailers now commonly offer ‘buy now, pay later’ arrangements. These arrangements allow customers to purchase and obtain goods and services immediately, but pay for the goods and services later. There are no specific regulations dealing with ‘buy now, pay later’ arrangements (although law reform is expected in 2024 to remedy this) and the National Consumer Credit Protection Act 2009 (Cth) does not apply. However, these arrangements are considered to be ‘credit facilities’ under the ASIC Act. This means that ASIC can take action where a ‘buy now, pay later’ provider engages in conduct that is misleading or unconscionable. Other provisions of the ACL Areas regulated by the ACL The ACL also regulates the following areas: • bait advertising (s 35): a person must not trick customers by offering only a few items at a low price; • offering gifts and prizes (s 32): a person who offers rebates, gifts, prizes or other free items in connection with the sale of goods or services must honour that offer; • wrongfully accepting payments (s 36): a person must not accept payment for goods or services if they do not intend to supply the goods or services, or know they cannot supply the goods or services, or cannot supply the goods or services in a timely manner; • pyramid selling (ss 44–46): this is outlawed as a scheme, except where there is an exemption order because the goods or services supplied under the scheme bear a reasonable relationship to the payments made under the scheme; • liability for unsolicited goods and services (ss 41–42): in general, a person does not have to pay for unsolicited goods or services; • unsolicited cards (s 39): credit or debit cards should only be sent to people if they have specifically requested them; • asserting right to payment (s 40): a person must not assert a right to payment for unsolicited goods or services, or unauthorised entries or advertisements; • multiple pricing (s 47): if a supplier displays multiple prices for goods at the same time, they must sell the goods for the lowest price or withdraw the goods from sale until the pricing is corrected;