Thoughts?
Is this really a consumer issue of significant financial value ($ x thousands) or one of asserting consumer rights for a more modest amount?
Would it be wisdom to keep it simple, and being in Queensland go to QCAT?
If QCAT cannot address the matter under ACL they would need to advise accordingly. QCAT operates through the local Magistrate’s Court outside the metropolitan area, which may also be convenient. The retailer cannot exclude application of the ACL irrespective of state/s.
Alternately there is always the option of engaging a respected law firm and going directly to court, assuming the value justifies the outlay. The courts are in no hurry to hear and settle minor claims, preferring complainants follow the alternative means provided.
I can find provisions in Section 79K of the Fair Trading Act 1987 (NSW) which overide such jurisdictional clauses in contracts, but not a similar provision in Fair Trading Act 1989 (Qld)
It’s a $1250 managed network switch, which for some is a modest amount and for others is of significant financial value.
It failed after 2.5 years, which I don’t consider a reasonable period, particularly for a device marketed by the manufacturer as providing “top price/performance value: a full-featured, enterprise-class switch”. Retailer is saying if I wanted it to last longer I should have gone for a more expensive switch with a 5 year or limited life time warranty. Most consumers would expect networking equipment to last longer than that, it’s not something that you replace frequently.
You only get on the list if there are 10 or more complaints. So with this company, they may have more than the 11 you can see but did not make the list at that time. Also you can trawl through the register month by month if you want to.
Which jurisdiction you should take action in is an important one because you may not be able to do both if the first is the wrong one.
If the company is in NSW, I would investigate that jurisdiction first as they must comply with state laws they are in (as well as Australian law). Phone calls are cheap and although they won’t give any advice as to whether you have a case or not, they should be able to advise which jurisdiction to use.
You can go to the small claims court without legal representation (I even went to the Federal Court against ACCC and won without legal representation in my fight against a builder). It is a fairly straightforward process if stressful and you can claim costs in that jurisdiction e.g. lodging costs, travel, etc. Costs are not normally awarded in NCAT which is also a lawyer-free zone!
As part of your case about what constitutes ‘reasonable’ use/time, I would seek the opinion of someone who knows about those switches. I have no idea but 21/2 years doesn’t seem that long.
Although your fight is with the retailer, I would also contact the manufacturer and see if you can get any indication from them how long that particular part is expected to last. You do not have to tell them your reason for asking nor that you are fighting one of their retailers. But it may give you more ammunition for your case should you decide to go ahead.
I don’t really want to incur these costs in the first place, plus at the moment there is the issue of border restrictions (I wouldn’t want to get stuck in Sydney due to it being declared a COVID hot spot). I know participants can request a hearing via telephone, but am not sure whether such circumstances are being considered at the moment. There are also limits on cost orders in the small claims court.
I’m hoping that lodging an application to whichever body is enough to get them to capitulate and that the cost for them to proceed with a defence will be higher than the cost to refund me.
Manufacturer unfortunately hasn’t been that helpful and I’ve seen forum posts where their response is the warranty is 12 months. I have found a number of blogs and articles online that say networking equipment has a typical lifespan of 5 years, which corresponds to the ATO depreciation table.
Keep copies of screenshots of the blogs and the ATO depreciation table as evidence.
Lodge in NSW and ask for a Teleconference. The process usually means you have to go through mediation before you get a hearing. In fact you only get to a hearing if mediation fails. Do not provide the other side with your case evidence until you are instructed to do so and even then try and get their submission first or at least at the same handover time.
Unfortunately, your success is going to depend on how much the other side is afraid of the NCAT. If they have been brought before them frequently, they will pull all kinds of tricks to deny you your rights even after you get a ruling in your favour. Be the dog with a bone because it will cost you time but very little financial distress.
In my own case, for a number of reasons, I had to go through three NCAT hearings, five District Court hearings, one Federal Court hearing and two investigative accounting hearings in a regional court plus two sheriff visits and a court order to garnish the builder’s bank account. I won everything and all orders but 9 years on have still not got the recompense I was ordered for the shoddy workmanship and am out of pocket by about $30,000. Be aware that NCAT cannot enforce its own orders, you have to get them ratified by the District Court. That is just a paperwork application with a fee.
Have you considered it is likely less expensive for yourself to lodge with QCAT?
Whether with NCAT or QCAT (lawyer free zone) is there any real cost to the retailer?
A further consideration might be that a full refund is unlikely. If the reasonable life of the product is accepted as 5 years (one further consideration) after 2.5years use a partial refund is most likely. Has the retailer/manufacturer accepted the returned goods for assessment or the option to repair?
That would be my preference, however jurisdictional issues mean I may need to pursue through NSW instead. I haven’t had the time to follow up with QCAT yet.
Their time and effort. This may be a cost to them. They may seek legal advice which will also be a cost.
The retailer has accepted the return of the goods but is not proceeding with any assessment as they are out of the factory warranty. Originally I was expecting a replacement or repair, however given their recalcitrance I would not want to be stuck with a product that I know would likely not be supported if if failed again.
If it is a major failure then based on the note:
Refunds should be the same amount you have already paid
If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may by action against the supplier, recover compensation for any reduction in the value of the goods below the price paid or payable by the consumer for the goods.
Given the switch is essentially worthless as it doesn’t work, the reduction in value would be the purchase price, or close enough to it.
Also, based on the information I’ve received from the manufacturer, the switch was already 2 year old stock when it was sold to me. So not exactly a new product. Not sure whether that will work in my favour too.
I hope it works out as you are asking.
Hopefully unlike @karen_seager example it will not take 9 years.
In the interim, assume the failed managed network switch has been replaced with product from a different manufacturer and supplier? I’ve had more than adequate service from Netgear and Dlink consumer grade products (5 years use plus). I’ve only had the plug packs fail. For home use I’ve never needed any more.
I’ve dug out an older HP switch I had lying around but it has fewer ports and is not POE so there are a few devices which aren’t functioning at the moment. I have been looking at buying a new switch but was waiting to see what the outcome of my complaint to FT NSW was first.
I’m running a few more advanced functions on my home network such as 10G SFP+ ports, isolated guest and IOT VLANs, and POE devices such as wireless access points and cameras. I’m looking at some of the Netgear and HP SMB gear. It’s challenging finding equipment that has enough ports, SFP+, POE and is fanless/quiet but doesn’t cost an arm and a leg, or require expensive ongoing support contracts to retain functionality.
I understand you don’t wish to advise the retailer’s name but is there any issue with providing the Make & Model of the Switch?
This might help to identify as to whether similar issues have arisen in the past with this manufacturer or this product. It may also open up to others who have had similar issues that there is a larger problem with the product.
If it is established there is a larger problem with Make and Model this may make your case much easier as a history can be shown.
It’s a Ubiquiti EdgeSwitch ES-48-500W. Powers on but all port LEDs that were connected when it failed are stuck on, status light not on, no network connectivity, can’t access web interface or via console port. Ubiquiti online support has diagnosed it as most likely a hardware failure.
Not an issue as I’m not using any passive POE devices. The configuration of the passive pinout on the Edgeswitches is to suit some of the older Unifi APs, which I don’t have.
If you look at two lines below the POE pin out details in the data sheet below that you’ll see that it supplies 48 VDC power:
Voltage Range 802.3at Mode 50–57V
I’m only running Unifi APs at the moment, so Ubiquiti equipment.
You could try to get a written statement about the average or expected lifetime of the switch from Ubiquiti, and use that for an ACL claim. You could minimally ask for a pro-rata refund or credit for a replacement. Considering the high reliability of cheap home equipment you might also go for ‘unacceptable quality’?
Appreciate the assistance. I try to steer clear from passive POE equipment as it’s any easy way to accidently fry things
That’s my view as well.
Manufacturer unfortunately hasn’t been that helpful and I’ve seen forum posts where their response to such questions is the warranty is 12 months.
I have seen those discussions. Not sure how beneficial they are as most of the threads say if you want reliability buy HP or Cisco, which is what the retailer’s argument is. They do tend to demonstrate a history of early failure, and that consumer expectation that switches should last longer.
The usefulness would be that it help demonstrate an unacceptable quality particularly for money spent ie over $1,000.
A manufacturer can hold out that their warranty and thus their obligation is only 12 months but thankfully the ACL offers greater protection. The warranty under ACL cannot detract from your Consumer rights, it can only add to them. In fact if they are so nailed to 12 months that could also be an argument that the product is of unacceptable quality, that is that the manufacturer expects a lifetime of no more than 12 months.
The old standard was for a failure rate of about 5% ie 95% or greater would last at least 12 months, if failures were above that 5% mark then tweaks to design were often made to get past that problem. Nowadays I am unsure what is an acceptable, in the manufacturers eyes, failure rate…it may be more it may be less. Ubiquiti sell their products on robustness, reliability, uniqueness in the market as to value for money…these promotions of value etc/arguments raise a further hurdle for them if products are failing and adds further support for your request for redress.
In addition to @grahroll’s comment, if you can accumulate warranty T&C for other switches / other manufacturers that is longer, of similar or lower cost, you can use that toward ‘evidence’ of inferior quality.
Most companies are like that reciting chapter and verse regardless of topic being warranty or real performance vs a standards minimum, or whatever.
Update to my situation. I ended up going back to the local distributor (Leader Systems) with my argument as a last attempt before pursuing the retailer further. This time received a positive response from the distributor. They had originally directed me to the retailer as they don’t generally deal direct with consumers. Offered a replacement or credit if I wanted to upgrade to a different model straight away as it shouldn’t have failed after such a short time. New switch promptly shipped out.
