Raise the problem with the trader quickly. The trader should be aware of their obligation to fix the problem within a reasonable time. Remember that the trader can offer you a refund or replacement, but that is their choice if the problem is not major.

Put your concerns in writing to the business. Make notes of phone calls and keep messages or emails.

If the problem is major or the problem is not fixed within a reasonable time, the law states that it is necessary to inform the trader that you are rejecting the goods. More information about what constitutes a major failure is found under Statutory Guarantees.

It is your choice to select either a refund or replacement. The trader may want time to assess the problem first, especially if it is a large item. It may be worthwhile obtaining an independent report from a third party although this is not always necessary.

If you cannot resolve the problem with the business, consider writing a letter of complaint. A letter can be sent by email but consider sending your letter by post to follow up. Keep a record of sending the letter.

You can check for the right address from your invoice or contract. If it is a large organisation, check their website for information about how to lodge a complaint.  It is always a good idea to keep your paperwork including invoices, any contract or receipts.

Important information for your letter of complaint:

It is usual to allow 21 days for a response, although if you have been communicating with the business about the problem this period may be shorter. Remember the purpose of the letter is to ask the business to provide a remedy, and what it proposes to do.

Remember to follow up if you haven’t heard back from the business.

If a trader does not respond, check to see if the business is still trading.  If the business has stopped trading and entered external administration, you may be able to pursue the manufacturer of the goods. Get legal advice about your options.

If a dispute arises with the business regarding how to fix the problem, you may need legal advice regarding your options. You may need to take the trader to court, or you can ask Consumer and Business Services to help resolve the dispute.

Section 8A of the Fair Trading Act 1987 (SA) provides that CBS can call a conciliation conference if requested by the consumer. Sub-section (8) 4 states that CBS can compel a trader to attend a conference with a consumer and a penalty applies if the trader refuses or fails to attend. If agreement is reached to resolve the dispute, it is recorded in writing. If the trader fails to carry out its obligations under the agreement, either the consumer or the Commissioner may apply to the Magistrates Court to enforce it. Get legal advice if the trader has not complied with the agreement.

A consumer can also take legal action directly against the trader. A claim for an amount less than $12,000 is a minor civil claim and lawyers are not permitted to appear at the trial. Free legal advice is available to assist with the process and a consumer can represent themselves even if the trader is a large corporation. The court encourages the mediation of disputes to avoid the uncertainty and expense associated with a trial.

More information about taking someone to the Magistrates Court is found on the Courts SA website and the COURT-SUING OR BEING SUED chapter.

The Australian Competition and Consumer Commission (ACCC) has a general enforcement role in relation to the Competition and Consumer Act 2010 (Cth). Complaints can be lodged with the ACCC regarding consumer issues, but the ACCC cannot assist an individual consumer to resolve a dispute with a trader. Lodging a complaint will help the ACCC in its enforcement and regulatory role. The ACCC may also do its own investigation of common consumer problems and may issue reports and guidance to highlight problems and help businesses to understand how they can comply with the law.

Section 87B of the Competition and Consumer Act 2010 (Cth) gives the ACCC the power to obtain an undertaking from a business if it believes certain conduct contravenes the legislation. The terms of the undertaking may include corrective advertising, refunds to consumers and education programs funded by the business. The aim of the undertaking is to not only avoid costly litigation, but also provide redress for consumers, compliance measures for the business and the industry generally, and raise public awareness of conduct.

It can also issue legal proceedings in the Federal Court of Australia to ask for declarations and possible fines against businesses in its consumer protection role.

Consumer and Business Services (CBS) is the South Australian Government fair trading body. It has both regulatory and consumer assistance functions, including:

CBS has authority under the following legislation:

Under Part 7 of the Fair Trading Act 1987 (SA), CBS has broad powers to require any person (whether a consumer or a trader) to provide information and to produce books and records for inspection by the Commissioner or her or his authorised officers. Authorised officers are also entitled to enter any premises for the purpose of inspecting any goods on those premises.

Consumer and Business Services can also assist individual consumers to resolve disputes with a trader and provides general consumer information and publications for both businesses and traders.

A claim by a consumer for faulty goods or services, or other breaches of the ACL is made against the owner of the business. Individuals (sole traders) or companies own and operate businesses. More information about business structures is here.

A business name is different to the name of the company or the individual. Consumers can search on the ASIC database for information about who owns the business. More information about searching is here.

If it fails, the rights of a consumer under the Australian Consumer Law (and under the law generally) against the business change. Any ongoing legal claim against the business by a consumer must stop. The consumer becomes an unsecured creditor and can fill in a ‘proof of debt’ for the claim.

If the individual business owner is bankrupt, the consumer lodges the proof of debt with the Trustee in Bankruptcy.

If a company owns and operates the business and cannot pay its debts, there is a process to appoint an administrator or liquidator. The consumer lodges the proof of debt with the external administrator for consideration.

Consumers should ask for information from the business owner about contacting the trustee in bankruptcy or the administrator or liquidator. Alternatively, wait until the trustee or external administrator contacts creditors. The letter will explain what to do next.

It can take a long time to get an unsecured debt paid out of bankruptcy or liquidation. Often there are insufficient assets available to meet all debts, and there may be nothing available to pay creditors.

Pursuing the Manufacturer

If the problem relates to faulty goods supplied by a business that is no longer operating, a consumer can pursue the manufacturer instead [Competition and Consumer Act 2010 (Cth) Schedule 2 Australian Consumer Law s 272]. Be aware that if the business supplying the goods branded under its own name and is also the importer, the business can be deemed to be the manufacturer [Competition and Consumer Act 2010 (Cth) Schedule 2 Australian Consumer Law s 272]. In that case, the consumer must deal with the liquidator.

Goods or Services Not Received

If the consumers used a credit card to pay for something, but the goods or services were not delivered, ask for a chargeback. This is a process through the provider of the card. For more information, contact the card provider or the financial institution. This applies regardless of whether the business is still operating.