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Seeking a refund in Small Claims Court. What am I entitled to?

Hi,

I purchased a dishwasher from a reputable retailer late 2016. Since then it has been repaired twice and now it’s non-functional. I’ve mentioned to the retailer that I am interested in a refund and I am entitled to this under the Sales of Good Act. That is: If a product is not “fit for purpose” a refund is due. Previously, I have trusted the retailer to help with my enquiries but now the they have stopped returning my calls.

I am thinking about replacing the product myself and taking the retailer to small claims court. I have two questions:

I live in regional Australia and I ordered the product online. This form here says “NCAT can only hear matters where the contract was entered into, goods supplied or services given in NSW. If the place of
contract is not clear you should seek independent legal advice”. Does this mean I need to lodge a claim in the court local to the supplier?

Also: given I may have to take time off work and I contract on an hourly rate, can I claim lost income?

Many thanks in advance for help.

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For a starter ‘mentioning’ to the retailer does not meet ACL requirements as they seem disinterested now. You need to have a thorough read of the ACL and the NSW act is the state implementation of same and overseen by NSW Fair Trading.

Not legal advice here, but —

Document your problem and each and every conversation with who, dates, details and written (including email) exchanges. You need to go formal and log everything. Send the retailer (MD, a listed complaints address, CEO, or similar, not just ‘customer service’ or manager–unless you cannot find any of the others) a written ‘letter of demand’. You can find numerous templates via a search. The ACL site has one and describes required bits to go in the letter such as a reasonable reply by date (usually 2 weeks), a statement of exactly how the product failed the requirements in the ACL, a statement of your rights as stated in the ACL, and exactly what you want the retailer to do. You need proof the retailer received it, either an automated email reply or the gold standard of signed registered receipted real mail.

If they do not reply to satisfaction you take that effort as evidence to either the NSW or retailer’s state ‘xCAT’, as necessary.

Good luck with it.

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Simple answer is no. If the ultimate outcome after following what @TheBBG has outlined is a refund, it will be limited to the value of the goods at purchase. Note: an outcome could be to have another repair done to the dishwasher or a replacement. A refund is only likely if the dishwasher is not repairable.

Good luck and be patient.

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At the end of the day @phb is correct that going to an ‘xCAT’ is not always a winning proposition. Some retailers might look at your address and their address and regardless of merit conclude you would not take the time and cost to travel and they can delay adding to your inconvenience, frustration, and personal costs; some people will persevere on principle but most probably look at the economics and fold.[quote=“phbriggs2000, post:3, topic:15047”]
A refund is only likely if the dishwasher is not repairable.
[/quote]
That comes under the difference between a major and minor failure at a year in, and by itself can be many shades of grey but a ‘lemon’ is not a major failure as defined. Minor failures can be repaired, and repaired, and repaired…’

‘Acceptable quality’ might be worth your research. I had a good win on that and my case was strong enough the manufacturer made good without much pushback.

Products must be of acceptable quality, that is:

* safe, lasting, with no faults
* look acceptable
* do all the things someone would normally expect them to do.

Acceptable quality takes into account what would normally be expected for the type of product and cost.

If you can find marketing materials or words in the product brochures or manuals touting ‘quality’, ‘built for 20 years service’ and so on, and it has needed 2 repairs in a year, you may have something to hang your claim on for a refund. You also probably would need to gather statistics about the reliability of your particular dishwasher model, the manufacturers range of dishwashers, and others in the same price range.

As @phbriggs wrote, [quote=“phbriggs2000, post:3, topic:15047”]
Good luck and be patient.
[/quote]

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This Choice website also contains valuable information as well.

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I am not a legal expert by any means and I would suggest you seek some legal counsel perhaps from a Community Legal Service to ensure you are getting good advice.

If due to the failure of the goods or conduct of the supplier/retailer/manufacturer you suffer a loss (an example might be lost income) you can seek compensation. This is an excerpt from the ACCC site on the ACL regarding what is required from a supplier/retailer/manufacturer :

(Bold highlighting in the excerpt is added by me)

"Compensation for damages & loss

Your customers can seek compensation for damages and losses they have suffered due to a problem with a product or service (in addition to any other remedy provided) if you could have reasonably foreseen the problem. In other words, customers can also recover losses that would probably result from your failure to meet a guarantee.

Damages include the cost caused to the consumer as a result of the problem with the product or service. This is usually financial, such as costs of repairing damaged carpets as a result of a faulty leaking washing machine, inspection and transportation. It can also include lost time or productivity.

You do not have to pay for damages or losses that:

are not caused by your business or the goods you supplied
relate to something independent of your business and outside your control, after the goods left your control."

So the answer is yes but the difficulty may be getting that awarded to you, but if you make the claim it will at least be considered rather than if you didn’t seek it.

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My understanding from @roony OP is compensation for time to make a claim through the small claims court, rather than losses directly as a result of the dishwasher. Such comes under the court rules rather than the ACL.

I believe based on my own experience is the courts don’t normally award costs/compensation for a claimants time to make such claims.

But as @grahroll outlined, independent legal advice can provide information on costs and possible outcomes of making such a claim.

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Likewise. A little off topic but I’ve wondered where that leaves things - if I order something from a company in NSW and I’m in the NT - where did the contract take place? I’d suggest where the business is, but logic and legal so often don’t agree ! Very interested in the lessons from this one :slight_smile:

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I agree Courts are extremely hesitant to award such costs/damages and who can afford to test it to the lengths it might require. But as I highlighted in the ACL the damages can be sought for costs that occur or “probably result” from the failure of a business to honour a guarantee, not just the original failure that caused the claim. So the Law allows it, I just don’t think it is an easy ask.

From an ACL publication by Clayton Utz Lawyers outlining what can be ordered for a failure under ACL:

“make a compensation order
in relation to a party to compensate
the person for loss or damage
suffered, or likely to be suffered,
as a result of a contravention
of the ACL”

I tried to find any explanation of your rights in this regard. Nothing was clearly set out that I could locate but I would. as you did, assume that it was the State/Territory where the supplier is located unless they had outlets near you (and not a franchise).

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Also of note is the right to get the goods returned to the Supplier if there is a problem and could be something that is more useful to undertake:

"Returning the product

You are entitled to return a product if you believe that there is a problem. You are generally responsible for returning the product if it can be posted or easily returned. You are entitled to recover reasonable postage or transportation costs from the business if the product is confirmed to have a problem, so keep your receipts.

When a product is too large, too heavy or too difficult to remove, the business is responsible for paying the shipping costs or collecting the product within a reasonable time of being notified of the problem. Examples include:

a wide screen TV
a bed
an extension ladder stuck in the extended position
a product that has been subsequently installed, like a stove or a dishwasher.

You do not have to return products in the original packaging in order to get a refund.

If the product is found not to have a problem, you may be required to pay the transport or inspection costs. An estimate of these costs should be provided to you before the product is collected, and the costs must not be inflated in an attempt to deter you from pursuing your claims."

The above was taken from the ACCC web site and I note with particular interest to this topic a “dishwasher” is an item where the supplier is expected to pay the shipping costs.

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Thanks everyone for the useful info. I have a lot of reading to do.

I’m glad i didn’t make any decisions before posting here! Yes, I will be patient and as @TheBBG says, I will formalise everything.

In my general experience, the retailer will make the effort to ensure I am happy. My best bet may be to be polite, patient and persistent.

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That is often the case, but consider writing a letter of demand with a friendly tone. Until you do that you might be in the revolving wheel of being made happy over, and over, and over, with no resolution to your dodgy dishwasher. :wink:

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To add to all the great advice already given to you:

My personal experience with state based Fair Trading body (FTb) is that if the retailer uses a legal representative to respond, even with a lawyer’s letter responding to claims, then the FTb immediately withdraw.

So to avoid wasted effort, and issues with state jurisdictions go with the ACL.

And remember, in general, if it’s not in writing, it doesn’t count!

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Lots of good advice here. One point I didn’t see mentioned is that under the ACL you have rights against both the retailer and the manufacturer/importer. I would write to both, or write to one and send a copy to the other.

Set out clearly the history of your dealings and problems in as neutral a way as you can. I often start a complaint with “I’d like to share my experience with you…” Make it clear where you believe you have rights, quoting from the ACCC website, and what your expectations are. Call the companies and ask the name of the managing director if you have to and write to them in person.

Reflect upon what made you decide on this particular dishwasher. Has Choice ever reviewed it? How did it rate? Google the problem and the model “my model XX dishwasher stops without finishing the cycle” and check productreview.com.au for reported problems with the model. Also, how is your water supply? Crystal clear, filtered or contaminated with solids? If the problems are with the electronics, do you have many thunderstorms? Water and power are often the cause of failures in regional areas.

Good luck, and never give up while you’re entitled to the benefit of the ACL.

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I thought I would let you guys know how this panned out…

I let the retailer know I wasn’t happy with the product and I expected a refund and I was prepared to escalate the issue until I got what I wanted. I was happy overall with their customer service. A few minor issues they sorted out. Actually, they bent over backwards for me toward the end. Thank you Appliances Online. Excellent customer service.

Eventually, I received a full refund from the supplier. They were apologetic and very helpful.

I asked the retailer to discount a replacement item for my troubles. No problem! I got about 10-20% off the replacement.

I think being polite and patient was the right way to go. Thank you everybody for your advice.

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Nice one @roony! :thumbsup:

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