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consumer

Hospitality complaints: Refusing to pay for a bad meal

Key Takeaway

In New Zealand, consumers have rights under the Consumer Guarantees Act and Fair Trading Act for hospitality services. For a 'bad meal,' remedies depend on whether the failure is minor or substantial. Consumers may seek a remedy, including cancellation of service or reduced payment, rather than outright refusal to pay without negotiation.

Consumer Rights in Hospitality: Refusing to Pay for a Bad Meal

When dining out in New Zealand, consumers are protected by specific legislation regarding the quality of goods and services received. If a meal does not meet reasonable expectations, customers, referred to as consumers (individuals who acquire goods or services ordinarily acquired for personal, domestic, or household use or consumption [Source: Consumer Guarantees Act 1993, s 2; Fair Trading Act 1986, s 2]), have rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

The Consumer Guarantees Act 1993 (CGA)

The Consumer Guarantees Act 1993 (CGA) applies to both goods (any type of personal property, including food [Source: Consumer Guarantees Act 1993, s 2]) and services (contracts for the performance of work, including restaurant services [Source: Consumer Guarantees Act 1993, s 2]) supplied to consumers. When a meal is served in a restaurant, it involves the supply of both goods (the food and drink) and services (the preparation, cooking, and serving).

Guarantees for Services

When a hospitality provider supplies services, the CGA stipulates several guarantees:

  • Reasonable care and skill: The services must be carried out with reasonable care and skill [Source: Consumer Guarantees Act 1993, s 28]. This means the meal should be prepared competently and professionally.
  • Fitness for a particular purpose: If the consumer makes known a particular purpose for the service, and the supplier represents they can meet that purpose, the service must be fit for that purpose [Source: Consumer Guarantees Act 1993, s 29].
  • Reasonable time: If no time is set for the completion of the service, it must be completed within a reasonable time [Source: Consumer Guarantees Act 1993, s 30].
  • Reasonable price: If the price is not agreed upon, the consumer is not liable to pay more than a reasonable price for the service [Source: Consumer Guarantees Act 1993, s 31].

Guarantees for Goods (the Food Itself)

The food served as part of the meal is considered goods, and also comes with guarantees:

  • Acceptable quality: The goods must be of acceptable quality, which includes being fit for all the purposes for which goods of that type are commonly supplied, acceptable in appearance and finish, free from minor defects, safe, and durable [Source: Consumer Guarantees Act 1993, s 6]. A meal that is undercooked, contains foreign objects, or is spoiled would typically fail this guarantee.
  • Fitness for a particular purpose: If the consumer makes known a particular purpose for the goods, and the supplier represents they can meet that purpose, the goods must be fit for that purpose [Source: Consumer Guarantees Act 1993, s 7].
  • Match description: The goods must correspond with any description given [Source: Consumer Guarantees Act 1993, s 9]. This means the meal should match the menu description.

Remedies under the CGA for Services

If a service (such as a meal preparation) fails to meet one of these guarantees, the remedies available depend on whether the failure is minor or substantial.

  • Minor Failure: A minor failure is a problem that can be remedied easily and does not significantly depart from the guarantee. For a minor failure, the consumer must allow the supplier to remedy the failure within a reasonable time [Source: Consumer Guarantees Act 1993, s 32(a)]. If the supplier fails to do so, the consumer may then:
    • Have the failure remedied by someone else and recover all reasonable costs from the supplier [Source: Consumer Guarantees Act 1993, s 32(a)(ii)(A)].
    • Cancel the service [Source: Consumer Guarantees Act 1993, s 32(a)(ii)(B)].
  • Substantial Failure: A substantial failure is defined as a failure that cannot be remedied, is of a substantial character, or where the consumer would not have acquired the service if they had known of the extent of the failure [Source: Consumer Guarantees Act 1993, s 32(2)]. For a substantial failure, the consumer may choose to:
    • Cancel the service [Source: Consumer Guarantees Act 1993, s 32(b)(i)].
    • Obtain from the supplier damages for any reduction in value of the service below the price payable by the consumer [Source: Consumer Guarantees Act 1993, s 32(b)(ii)].

Cancelling a service, particularly when the failure is substantial and impacts the entire meal, may mean the consumer is not obliged to pay for that specific service or can seek a refund if already paid. For a partially consumed meal where a substantial failure is discovered, a consumer may be entitled to a reduced payment or a refund proportional to the failure.

The Fair Trading Act 1986 (FTA)

The Fair Trading Act 1986 prohibits businesses from engaging in misleading or deceptive conduct. This Act can apply to situations in a restaurant if:

  • Misleading or deceptive conduct: A business must not engage in conduct that is misleading or deceptive, or is likely to mislead or deceive [Source: Fair Trading Act 1986, s 9]. This could apply if a restaurant makes claims about its food or service that are untrue.
  • False or misleading representations: It is unlawful to make false or misleading representations about the nature, characteristics, suitability for a purpose, or quantity of goods or services [Source: Fair Trading Act 1986, s 13]. For example, if a menu falsely describes the ingredients or preparation method of a dish.

If a consumer suffers loss or damage due to misleading or deceptive conduct or false representations, the FTA provides for various remedies, including orders for damages or contract variation [Source: Fair Trading Act 1986, Part 5].

Refusing to Pay for a Bad Meal: Legal Position

The CGA primarily outlines a process for addressing failures, which typically involves giving the supplier an opportunity to remedy the issue. Outright refusing to pay without engaging in this process, especially for a minor issue, may not align with the CGA's provisions.

If a meal constitutes a substantial failure (e.g., it is entirely inedible, unsafe, or fundamentally different from what was ordered), a consumer may have the right to cancel the service [Source: Consumer Guarantees Act 1993, s 32(b)(i)], which can include not paying for the item or seeking a full refund. For issues considered a minor failure, the restaurant generally has the first opportunity to remedy the problem, for instance, by offering a replacement meal or a discount [Source: Consumer Guarantees Act 1993, s 32(a)]. If the restaurant fails to remedy the minor issue within a reasonable time, the consumer may then cancel the service or seek to recover costs.

Consumers are generally expected to inform the restaurant staff promptly about the issue. Open communication is key to resolving such disputes in line with consumer law principles.

When to Seek Independent Legal Advice

Consumers facing complex disputes with hospitality providers, particularly those involving significant financial loss, health and safety concerns, or where the supplier is unwilling to resolve the issue in line with their legal obligations, may benefit from seeking independent legal advice. Information and assistance can be obtained from official bodies like the Commerce Commission, or by contacting Community Law Centres throughout New Zealand for free advice on consumer issues [https://communitylaw.org.nz/].

Key Resources