We Can’t Agree on Our Property Settlement

Consumer Guarantees

consumer guarantees

 

All Australian traders, whether online or running a bricks and mortar operation, must comply with Australian trading laws and this includes consumer guarantees. This includes laws on consumer guarantees. Since 1 January 2011, businesses must provide consumers with guarantees for most consumer goods and services they sell.

Each circumstance is unique, and we are here to listen to your story and find a solution or answer, contact us.

Goods

Consumers have the right to ask for a repair, replacement or refund if the goods sold are:
• faulty
• unsafe
• look unacceptable, and
• do not do what they are supposed to do.

In each case this is according to what someone would normally expect for the type and cost of the particular goods.

Consumers also have this right if the goods sold do not:
• fit the purpose discussed with the shop owner
• match the description provided
• match the sample or demonstration model provided
• have the extra qualities or performance that were promised before the sale.

Services

Consumers have the right to ask for a repair, replacement or refund if the services you sold:
• were not delivered completely or with adequate care and skill
• did not fit the purpose or give the results that had been agreed to
• were not delivered within a reasonable time.

These rights arise from the consumer guarantees under the Australian Consumer Law that provide consumers with a right to seek remedies where there are problems with goods or services. Other laws apply for products and services you bought before 1 January 2011.

What types of businesses must offer consumer guarantees?

Consumer guarantees apply automatically to most products and services supplied by businesses in retail, service, online and hire situations.

No refunds

  1. It is illegal for businesses to tell customers or show signs stating that they do not under any circumstances give refunds.
  2. Must businesses automatically give a repair, replacement or refund? No. This will depend on the consumer showing proof of purchase and whether or not there is a major problem with the product or service.
  3. Proof of purchase can include a receipt, bank statement, a completed warranty card or a lay-by statement.

Guarantees and the ACCC

guarantees and the accc

Fully defined statutory guarantees apply to all products and services sold in Australia. While there are nine specific rights regarding goods and three regarding service, the essential rules with relation to guarantees are as follows:

  • Goods must be of acceptable quality (taking account of their price and nature) and fit for the purpose they were designed for.
  • Goods must match any description made of them and any sample shown. If you’re buying a product for a particular purpose, make sure you discuss this explicitly with the salesperson. If in doubt, get it in writing.
  • Spare parts and servicing must be available for products for a “reasonable time” after sale.
  • Services must be carried out with due care and skill, and achieve any result specified… If a plumber promises to fix a leak and the leak continues, the onus is on the plumber to repair it.

There are no explicitly specific periods specified for how long goods must be functional for, since this varies enormously depending on the product category. However, as the ACCC has made clear with recent discussions with phone companies, products provided as part of a contract like mobile phones must remain operable and serviceable for the duration of those contracts.

Businesses can extend these rights — for instance by offering a more specific or longer warranty — but they can’t reduce or ignore them. A business might reasonably argue that the conditions applying to an item sold as a “second” are different, but they can’t opt out altogether. A business cannot display a sign stating “no refunds”. As a consumer, you wouldn’t be able to complain about a stitching flaw in a “seconds” pair of jeans, but if they fell apart the first time you put them on, you’d likely be entitled to ask for a replacement or refund, since they don’t meet their intended purpose at all.

The law also clarifies how problems are to be remedied. If the issue with a product is “major” — defined by the ACCC as “one that is so severe that a reasonable consumer would not have bought the good or service if they had fully understood the problem with it” — then the consumer can choose whether they want a refund, replacement or repair and the vendor can’t object to their choice. For less severe problems, that decision can be made by the supplier.

Personal Properties and Securities Act

personal properties and securities act

Are you ready for the PPSA?

New legislation called the Personal Property Securities Act (“PPSA”) came into effect recently.  It will dramatically alter the way we deal with personal property and the way in which security over personal property can be protected.

“Personal property” is any property (except real estate and fixtures to land) such as machinery and equipment, motor vehicles, book debts, stock, trademarks and patents etc.

The PPSA will regulate any “security interest” in personal property.  If you do not protect your rights you risk losing your interests in that property.

For example you could lose:

  • priority to another creditor; or
  • title to your property if it is left in the possession of someone else (eg. if they sell it or if they go into liquidation etc ).

How does the PPSA affect you?

If you answer yes to any of the questions below, you should contact us to discuss how the PPSA may affect you and what steps you should take to protect your interests.

  • Do you own personal property that could be in someone else’s possession for longer than 90 days ?
  • Do you consign goods to other people to sell ?
  • Do you manufacture and sell goods ?
  • Do your conditions of sale state that you retain ownership until you are paid (i.e.
    retention of title clause)
  • Have you granted “fixed and floating” charges or have they been granted to you ?
  • Do you include charging clauses in your standard documents to give you security for an obligation ?

Registration

A single national online register of Personal Property Securities interests called the PPS Register (“PPSR”) has been established.

It is essential to register your security interests in order to obtain priority. By registering your security interest you can prevent another person taking ownership of your goods.

Any delay in registering your security interest or inaccuracy in the registration could be disastrous.  New security interests created must be registered quickly and in some cases may be registered before the transaction is completed.

 

Questions?

If you have any questions about this blog post, do not hesitate to contact McLaughlin & Associate Lawyers via call or email.

Alternatively, you may visit our office in Springwood.

Mandatory Standards for Window Coverings

mandatory standards for window coverings

Do You Require Window Coverings?

Landlords who supply corded window furnishings in rental properties, and Property Managers who offer services in relation to those properties, must now comply with national Mandatory Product Standards designed to reduce the risk of strangulation of infants and young children.

The legislation is part of The Australian Consumer Law which came into effect on 1 January 2011 and incorporates The Trade Practices Act. It prescribes standards for child safety devices, mandatory warning labels and safety installation instructions.

Any corded window covering supplied by the Landlord such as Vertical Blinds, Venetian Blinds, Holland Blinds, Roman Blinds and Curtains must comply, even if they are second hand or already installed.

As a breach of the Mandatory Standards carries a potential fine of up to $220,000 for individuals and $1.1 Million for companies, Landlords and Property Managers need to take their obligations seriously.

I recommend to you the services of Safer Property Solutions Pty Ltd, “SPS” who offer a specialist compliance inspection and retrofit installation service tailor made for Property Managers. SPS provides free advice on how to identify non-compliance and template letters that you can use to inform your landlords of their obligations.

Neighbourhood Disputes

neighbourhood disputes

The new Act came into effect late last year (2011) and it introduces new responsibilities and rights in relation to trees.  The Act introduces the new expression of “tree keeper”.  The tree keeper is the person who is responsible to maintain the tree and ensuring that it does not become a nuisance.

A person affected by an overhanging tree can still exercise the common law right of abatement (eg: by lopping branches and roots to the boundary).  Now a neighbour can decide whether or not to return the lopped branches or roots or to dispose of the cuttings themselves.  When exercising the right of abatement, neighbours must take care to comply with any applicable tree or vegetation protection orders.

If a neighbour wants the tree keeper to take responsibility for lopping the branches of their tree hanging over the boundary, then the neighbour can serve a notice for overhanging branches upon the tree keeper.  This notice can be used for branches which are more than half a meter over the boundary and less than 2.5 metres above the ground.  If the tree keeper does not respond to the notice, the neighbour can proceed to have the lopping done and recover from the tree keeper a max sum of $300.00 per annum.  Importantly, responsibility is placed on the tree keeper to ensure their neighbour’s land is not affected by a tree growing on the tree keeper’s land. For the purpose of the Act, land is affected by the tree if a neighbour can demonstrate that the tree caused serious injury to a person, serious damage to land or property or interferes with their enjoyment of the land.

“QCAT” (Queensland Civil Administrative Tribunal) has jurisdiction to hear and decide any matter in relation to a tree in which it is alleged that the land is affected by the tree.

First Home Owners Grant

neighbourhood disputes

As of the 1st July, 2000 first home buyers may qualify to receive a one off $7,000.00 grant from the Federal Government. Maybe you, your children or someone you know can take advantage of the grant!

There appears to be a lot of confusion and misinformation about who is eligible for the grant. For example, I had a client who was informed by her Bank Manager that she was not eligible for the grant because she was not buying a “new” home. Wrong!

Lets have a look at some of the requirements for eligibility.

  • For a person to be eligible for the grant they must:-
  • Be buying or building their first home.
  • Enter into a Contract to buy an existing home or build a new home on or after 1 July, 2000.
  • Be an Australian Citizen or permanent resident.
  • Intend to reside in the home as their principle place of residence.
  • Start living in the home within a reasonable time.

Other points to know are:-

  • The payment is not means tested.
  • Trusts and Company’s are not eligible for the grant.
  • The payment will be made regardless of where the person buys or the value of the home they are buying/building.
  • It applies to both new and established homes.
  • It does not apply to holiday houses or investment properties.

There are some catches to eligibility so it is vitally important you speak with a person who knows what they are talking about.

If You Own A Pet, Read This

If you have a pet read this

A myriad of scientific studies indicate that people may improve their likelihood of experiencing better general health by owning a pet. Some studies even suggest people can decrease their stress levels and blood pressure just by owning a pet.

But what if you own a mischievous pet – will these health benefits also ensue?

There is an inherent risk owning a mischievous pet, for example a savage dog. If the dog bites, the owner may be at risk of a negligence claim if the owner was aware that the dog’s behaviour was inclined to be vicious. It appears unlikely that such a risk would improve your health – so how can you minimise the stress of owning a mischievous dog?

You can decrease the likelihood of your dog attacking by keeping your dog within the fencing confines of your property. However, if your dog does bite a person within the confines of your property, this will not necessarily prevent the injured person from bringing a negligence claim. Therefore, you need to take extra care if you have visitors to your residence, especially children or people unfamiliar with the nature of the dog. In addition to securely enclosing your pet on your property, you should also consider the following measures to minimise the risk of your mischievous pet:

  1. erect adequate and visible warning signs showing that a savage dog resides at your premises;
  2. verbally warn entrants to your premises of the nature of your dog’s temperament;
  3. ensure children are adequately supervised on your property;
  4. for young children, ensure access from your house to the dog’s enclosure is blocked (for example, lock doors).

Walking your dog may help your fitness and hence your general health, but a mischievous dog on an outing outside your property is a risk. To minimise the risk, keep your dog on a leash, avoid crowded places and if necessary, you may consider a muzzle.

Please note, that if your dog has been declared dangerous, menacing or restricted in Queensland by your local government authority, then the management of your dog will be regulated by the Animal Management (Cats and Dogs) Act 2008.

It is recommended you check your public liability insurance to ensure your policy will adequately cover animal liability. Otherwise, you risk being sued personally for any negligence claim involving your dog.

Keep your mischievous pet under sufficient control and ensure you have adequate public liability insurance – so you will be on the way to enjoying the health benefits of owning your pet.

What is an Office Syndicate

office syndicate
Many workplaces have the traditional office syndicate where everyone chips in a few dollars every week to buy a Gold Lotto entry.  No one expects to win but shock horror you actually win a substantial prize.  This is where things can turn ugly and there are lessons to be learned.
We were recently involved in such a case.  8 staff were in an office syndicate for Gold Lotto.  They won $250,000 however one member was on holidays at the time and hadn’t paid their money.  The “leader” of the syndicate and a few others then argued that the holidaying employee wasn’t entitled to a share of the prize because she wasn’t paid up.
Don’t think it could happen at your workplace? Well think again.  Where money is involved, especially a substantial sum, people have a habit of reacting in an unusual and sometimes nasty manner.  So my advice is:
1. Have some clear cut rules as to membership and eligibility of the syndicate.
2. Make sure someone is responsible for running the book on who has paid and who hasn’t and what the rules are around payment and more importantly non-payment of dues.
3. Post your rules on the noticeboard or on the fridge in the staff kitchen or some other prominent place at work where everyone has access to them.
4. Register a syndicate with Golden Casket.

Home Owners Be Warned: OSR

home owners be warned

We recently had a case where a client bought a unit in the inner city some seven years ago.  She claimed First Home Owner status thus receiving the First Home Owners grant (as it was back then) as well as a concession on Stamp Duty.  The Contract was subject to a Tenancy which expired 3 months after settlement date.

At the end of the Tenancy the Tenant negotiated another 3 month lease.  The Tenant subsequently moved out and our client moved in and thought everything was fine.  The client later sold the unit in 2010.  In 2011 the client received notice from the Office of State Revenue demanding that they pay additional Stamp Duty, penalties, and interest of some $12,000.00 because she did not comply with the requirements for either the First Home Owners Grant or Stamp Duty concession.

The matter is still ongoing in 2013.

On occasions, through an innocent oversight, clients may breach the requirements to qualify for a concession and that mistake can be costly.  Other times clients think they will just “take the risk” because “what are the chances of being caught?” Well the chances are quite high actually.  In this day and age the Office of State Revenue has so many aids available to them to be able to cross reference information e.g. Electoral role, taxation records, Rental Bond Authority etc that there is a high risk that you will be caught and unfortunately even innocent mistakes do not always meet with the sympathy of the Commissioner.  So be warned.

Video

Prefer a video format? Our Principal, John McLaughlin, provides an informative Law Talk episode on Tenancy