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consumer

What happens if a retailer cannot fix a fault after multiple tries?

Key Takeaway

If a retailer in New Zealand cannot fix a product fault after multiple attempts, or within a reasonable time, consumers generally gain stronger rights under the Consumer Guarantees Act 1993. This may allow them to reject the goods for a refund or replacement, or seek compensation, rather than just accepting further repairs. Retailers must also comply with the Fair Trading Act 1986 by not making misleading claims.

Consumer Rights When a Retailer Cannot Fix a Fault in New Zealand

In New Zealand, consumers are protected by legislation when purchasing goods and services. If a product develops a fault and a retailer cannot remedy it after multiple attempts, specific rights and obligations come into effect, primarily under the Consumer Guarantees Act 1993 (CGA) and the Fair Trading Act 1986 (FTA).

Consumer Guarantees Act 1993: Your Rights When Goods are Faulty

The Consumer Guarantees Act 1993 establishes a set of guarantees that suppliers and manufacturers must meet when selling goods and services to consumers. A guarantee is a promise or assurance regarding the quality, performance, or nature of goods or services.

Guarantee of Acceptable Quality

Goods supplied to a consumer must be of acceptable quality [Source: Consumer Guarantees Act 1993, s 6]. This means they must be:

  • Fit for all the purposes for which goods of that type are commonly supplied [Source: Consumer Guarantees Act 1993, s 7(a)].
  • Acceptable in appearance and finish [Source: Consumer Guarantees Act 1993, s 7(b)].
  • Free from minor defects [Source: Consumer Guarantees Act 1993, s 7(c)].
  • Safe [Source: Consumer Guarantees Act 1993, s 7(d)].
  • Durable [Source: Consumer Guarantees Act 1993, s 7(e)].

This acceptable quality is assessed by what a reasonable consumer would regard as acceptable, taking into account factors such as the nature of the goods, price, and any statements made about them [Source: Consumer Guarantees Act 1993, s 7(1)].

What if Goods Don't Meet Guarantees?

If goods fail to comply with a guarantee, the consumer has specific remedies, which are legal courses of action or compensation available. The type of remedy depends on whether the failure is minor or substantial.

Minor Failures

A minor failure is one that can be remedied to comply with the guarantee within a reasonable time [Source: Consumer Guarantees Act 1993, s 18(2)]. If there is a minor failure:

  • The retailer (supplier) must remedy the failure within a reasonable time [Source: Consumer Guarantees Act 1993, s 18(2)(a)]. A remedy can involve repairing the goods, replacing them, or providing a refund [Source: Consumer Guarantees Act 1993, s 18(2)(a)(i)-(iii)].

When a Minor Failure Becomes Substantial (After Multiple Tries)

If the retailer fails to remedy the minor failure within a reasonable time, or refuses to do so, the consumer can choose to treat the failure as one of a substantial character [Source: Consumer Guarantees Act 1993, s 18(2)(b)]. This is particularly relevant when a retailer has attempted multiple repairs without success, indicating they have not remedied the fault within a reasonable timeframe.

Failures of a Substantial Character

A failure of a substantial character is a more significant failure where, for example [Source: Consumer Guarantees Act 1993, s 21]:

  • The goods would not have been acquired by a reasonable consumer fully aware of the nature and extent of the failure [Source: Consumer Guarantees Act 1993, s 21(a)].
  • The goods depart in a significant respect from their description or any sample [Source: Consumer Guarantees Act 1993, s 21(b)].
  • The goods are substantially unfit for a purpose for which they are commonly supplied, or for any particular purpose that the consumer made known to the supplier, and they cannot easily be made fit within a reasonable time [Source: Consumer Guarantees Act 1993, s 21(c), s 21(d)].
  • The goods are not of acceptable quality because they are unsafe [Source: Consumer Guarantees Act 1993, s 21(e)].

Consumer's Choices for Substantial Failures

If there is a failure of a substantial character (either initially or because a minor failure was not remedied in a reasonable time), the consumer has the right to choose their remedy [Source: Consumer Guarantees Act 1993, s 18(3)]. The consumer can:

  1. Reject the goods: This means the consumer can return the goods and choose either a full refund of the purchase price or a replacement with goods of an identical type. If identical goods are not available, a refund is usually provided [Source: Consumer Guarantees Act 1993, s 18(3)(a), s 18(4)]. To reject goods, the consumer must notify the supplier and either return the goods or make them available for collection [Source: Consumer Guarantees Act 1993, s 20].
  2. Claim damages: Keep the goods and claim damages (compensation) from the retailer for any reduction in the value of the goods below the price paid [Source: Consumer Guarantees Act 1993, s 18(3)(b)].

Additional Damages (Consequential Loss)

In addition to the above remedies, consumers may also claim damages for consequential loss from the retailer. This refers to compensation for any loss or damage to the consumer resulting from the initial failure, provided that loss or damage was reasonably foreseeable [Source: Consumer Guarantees Act 1993, s 18(4), s 19]. For example, this could include the cost of hiring a replacement item while the faulty one was being assessed or repaired.

Fair Trading Act 1986: Preventing Misleading Conduct

The Fair Trading Act 1986 (FTA) also plays a role by prohibiting misleading and deceptive conduct in trade. This means retailers cannot mislead consumers about their rights under the CGA or about the product or repair service itself.

Misleading and Deceptive Conduct

No person in trade shall engage in conduct that is misleading or deceptive or is likely to mislead or deceive [Source: Fair Trading Act 1986, s 9]. This includes representations made by a retailer about a product's quality, durability, or the effectiveness of a repair service.

False or Misleading Representations

The FTA specifically prohibits making false or misleading representations concerning, among other things:

  • The quality, standard, grade, or history of goods [Source: Fair Trading Act 1986, s 13(a)].
  • The nature, characteristics, suitability for a purpose, or quantity of goods [Source: Fair Trading Act 1986, s 13(b)].
  • The availability of facilities for the repair of goods or of spare parts for goods [Source: Fair Trading Act 1986, s 13(g)].
  • The nature, characteristics, suitability for a purpose, or quantity of services [Source: Fair Trading Act 1986, s 13(i)].

If a retailer makes false promises about their ability to fix a fault, or about the quality of their repair service, they may be breaching the Fair Trading Act 1986.

When to Seek Independent Legal Advice

Individuals facing persistent issues with faulty goods or services, or those unsure about their rights and available remedies, should consider seeking independent legal advice. Information on consumer law is available from official government bodies such as Consumer Protection. Free legal advice may also be available through Community Law Centres across New Zealand.

Key Resources