The Law Handbook 2024

706 Section 7: Consumers, contracts, the internet and copyright Goods bought online or overseas The consumer guarantees apply to goods bought from online businesses based in Australia. However, the guarantees do not apply to goods bought from overseas websites if they do not offer their products and services in Australia, or if the product is first sent to an overseas address before it is sent to Australia or if the transaction is made overseas. It is important to check the terms and conditions of the contract. Even if they do apply, there may be practical difficulties in taking legal action and obtaining an effective remedy from an overseas-based seller. ‘No refunds’: Can guarantees be excluded or limited by a contract? A consumer’s rights under the consumer guarantees – that goods comply with their description, be of acceptable quality and are fit for their purpose – cannot be excluded from consumer contracts. A term of a contract is void (i.e. not enforceable) if it claims to exclude the operation of the consumer guarantees or exclude liability for a failure to comply with a consumer guarantee (s 64 ACL). Signs, cash register receipts, websites, etc. that state ‘no refunds’ are misleading because they send the message that it is not possible to get a refund or other remedy even if there is a breach of a consumer guarantee. These notices try to stop consumers from claiming their statutory rights to the non-excludable consumer guarantees under the ACL. Notices stating the following terms are unlawful: • ‘no refund on sale items’; • ‘exchange or credit note only for return of sale items’; • ‘no refunds after 30 days’. Similarly, insisting that a consumer return goods unopened or in the original packaging may be misleading as this is not a pre-condition to enforce the consumer guarantees. However, notices that state that ‘no refunds will be given if you have simply changed your mind’ are acceptable because they do not try to negate the consumer guarantees. The consumer guarantees of acceptable quality, fitness for purpose and description cannot be limited by time. A seller or manufacturer may say that it will cover defects for (say) 24 months from the date of purchase but this does not affect ACL rights, which may last longer depending on the pre-requisites discussed above, such as the description and the price. A term of a contract may limit a supplier’s liability to replace or repair faulty goods, or to pay to replace or repair the goods. However, this only applies if the goods are not ordinarily used for personal, domestic or household use or consumption (s 64A ACL). This means that any term in a contract that attempts to limit the remedies available for personal, domestic or household goods is void. Also, displaying a ‘no refunds’ sign may be an offence under section 29(1)(m) of the ACL because it makes a false or misleading representation concerning the effect of a condition, warranty or guarantee. Consumer guarantees: Goods NOTE: GOODS PURCHASED AT AUCTIONS Goods purchased privately though classified websites (e.g. eBay, Facebook Marketplace and Gumtree) are covered by the ACL’s consumer guarantees. A person who sells goods through an auction website may be subject to the consumer guarantees because the website does not act as an agent for the person selling the goods. In contrast, most of the consumer guarantees do not apply to goods purchased at public auctions conducted by a person as an agent of the seller whether in person or by electronic means (‘sale by auction’, section 2(1) ACL) (Those that do not apply are acceptable quality, fitness for purpose, description, sale by sample or demonstration model, spare parts and repairs, and express warranties, which are discussed below.) Consumers should be careful when they purchase goods through classified websites or at auctions because: 1 many of the ACL’s consumer guarantees may not apply; and 2 there could be practical hurdles to getting a refund or taking legal action against a private seller. Goods must be of acceptable quality Suppliers and manufacturers guarantee that goods are of acceptable quality (s 54 ACL). This means