Goods purchased through auctions
Goods purchased privately though classified websites (e.g. eBay and Gumtree) are covered by the ACL’s Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. guarantees. A person who sells goods through an auction website may be subject to the consumer guarantees because the website does not A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. as an A person who acts for someone else. They can make decisions, carry out tasks or make agreements for the other person. For example, if you ask someone to bid for you at an auction they will be acting as your 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:
- many of the ACL’s consumer guarantees may not apply; and
- 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 A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. that goods are of acceptable quality (s 54 ACL). This means that they must be saleable.
Goods are of acceptable quality if they are:
- fit for all the purposes for which goods of that kind are commonly supplied;
- acceptable in appearance and finish;
- free from defects;
- safe; and
to the standard that a reasonable consumer who is aware of the goods’ state and condition (including hidden defects) would regard as acceptable, considering the tests set out in section 54(3) of the ACL:
- the nature and price of the goods;
- any statements on the packaging or labelling;
- any representations about the goods made by the supplier or manufacturer; and
- any other relevant circumstances relating to the supply of the goods.
In short, would a reasonable consumer who knew about the defects at the time of purchase regard these defects as acceptable?
The guarantee of acceptable quality does not apply to the following situations:
- the defects were drawn to the consumer’s attention before purchase;
- the defects were disclosed in a written notice displayed with the goods;
- the defects would have been clear if the consumer conducted a reasonable examination before purchase;
- the consumer caused the goods to become unacceptable quality or failed to take reasonable steps to prevent them becoming unacceptable quality;
- the consumer’s abnormal use damaged the goods (s 54(4)–(6) ACL);
- the goods were bought at auction (s 54(1)(a) ACL).
If you can’t determine whether goods you have purchased are of acceptable quality, seek legal advice.
Goods must be fit for purpose
Suppliers guarantee that the goods are reasonably fit for any purpose specified (disclosed) by the consumer or the supplier (s 55 ACL). The goods must be fit for:
- any purpose that the consumer made known (expressly or by implication) to the supplier or the person who conducted the sales negotiations; and
- any purpose for which the supplier represents that the goods are reasonably fit (s 55 ACL).
This guarantee does not apply where the consumer did not rely on, or where it was not reasonable for the consumer to rely on, the skill or judgment of the relevant person. This guarantee does not apply to manufacturers or goods bought at auction.
Goods must match their description
Suppliers and manufacturers guarantee that goods correspond to their description (s 56 ACL). This includes a description given in an advertisement or catalogue. The guarantee applies even where the consumer inspected the goods before purchase. If goods are supplied by reference to a description and a sample, the consumer guarantees under sections 56 and 57 of the ACL apply. This guarantee does not apply to goods bought at auction.
Goods must match any sample or demonstration model
Suppliers guarantee that goods supplied by reference to a sample or demonstration model correspond with that sample or demonstration model in quality, state or condition (s 57 ACL).
Specifically, there is a guarantee that:
- the goods correspond with the sample or demonstration model in quality, state or condition;
- the consumer has a reasonable opportunity to compare the goods with the sample; and
- the goods are free from any defect that would not be apparent on reasonable examination, or would cause it not to be of acceptable quality.
If goods are supplied by reference to a sample or demonstration model and description, the consumer guarantees under sections 56 and 57 of the ACL apply. This guarantee does not apply to manufacturers or goods bought at auction.
Repairs and spare parts
Manufacturers guarantee that they A document that sets out what a person wants to happen to their money and other property after they die. take reasonable action to ensure that repair facilities and spare parts are available for a reasonable period after purchase (s 58(1) ACL). This applies even where the goods are not bought directly from the manufacturer of importer.
Whether a time period is ‘reasonable’ depends on the type of goods. For example, a reasonable period will be longer for parts for new cars than for cheap toys.
A manufacturer is not liable after a specified time if it took reasonable steps to ensure that the consumers are advised in writing, at the time of purchase, that repairs or parts won’t be available after a certain time (s 58(2) ACL).
This guarantee does not apply to goods bought at auction.
A manufacturer guarantees that it will comply with any express warranties (extra promises) given by the manufacturer in relation to the goods (s 59(1) ACL). Similarly, a supplier guarantees that it will comply with any A verbal or written promise made about a product when it is offered for sale, which would naturally encourage people to buy the goods (e.g. a sales person saying a toaster will last for six years). Breach of an express warranty can give rise to a right to sue for damages. given by the supplier (s 59(2) ACL).
‘Express warranty’ is defined broadly (s 2 ACL) and includes any undertaking, assertion or representation:
- about the quality, state, condition, performance or characteristics of the goods;
- about the availability of parts, repairs, or identical goods; and
- the natural tendency of which is to induce persons to acquire the goods.
This guarantee does not apply to goods bought at auction.
Title, undisturbed possession and undisclosed securities
Several consumer guarantees protect consumers when a seller does not have the right to sell the goods. These guarantees do not require the supply to be ‘in trade or commerce’, which means that they apply to all sellers, whether or not they are operating a business. These guarantees also apply to goods bought at auction.
First, the supplier must have the right to dispose of the goods (i.e. they must have Outright ownership of property, without any debts or charges. in the goods) at the time the consumer acquires property in the goods (e.g. by taking delivery of the goods) (s 51 ACL). This means that when a consumer buys goods, there is a guarantee that ownership rights are passed to the consumer.
The only exceptions are:
- where there is a clear intention that the consumer will not obtain clear title in the goods (e.g. where the goods are provided for a limited period); or
- where the goods are hired or leased because the consumer does not expect to own the goods outright.
Second, consumers have a right to undisturbed (1) Having control over property. Possession is not the same as ownership. For example, a bicycle you have borrowed from a friend is in your possession but you do not own it. (2) Having illegal drugs on your person or property. of goods (i.e. that no one will try to repossess or reclaim the goods), subject to any Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions., (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case. or A legal restriction, such as a mortgage, that prevents the owner from freely dealing with real estate or other property. (e.g. a A restriction attached to ownership of property to secure the repayment of money borrowed. The mortgage stops the owner of the property selling it until they have paid off the debt.) that was disclosed to the consumer when they purchased the goods (s 52 ACL). This guarantee applies to hired or leased goods, but only for the period of the (1) An agreement to pay for the temporary use of something, for example a car. Also called renting or leasing. (2) To employ someone to do work. or A document that sets out an agreement between a landlord and a tenant for the renting out of property, or for the use of other personal property such as a car..
Further, if the consumer purchased the goods under a payment plan and the consumer fails to make the payments, the seller may be entitled to repossess the goods.
Third, goods supplied to a consumer must be free from any undisclosed security (e.g. a mortgage), charge or encumbrance unless it has been disclosed to the consumer (s 53 ACL). This guarantee does not apply to goods that are hired or leased.