The ACCC alleges that the owner of Electronic Bazaar made false and misleading representations about:
- the availability of consumer refund rights – suggesting that customers were not entitled to a refund for goods which were, for example, no longer under an express warranty, or not in original packaging; and
- the extent of the store's liability for faulty goods – suggesting that customers needed to claim against certain companies which do not in fact exist.
As noted on the site's terms and conditions:
There are certain scenarios where it is difficult for us to support returns
- Return request is made outside the specified time frame
- Product is damaged because of use or Product is not in the same condition as you received it
- Defective products which are covered under the manufacturer's warranty
- Items that are returned without original packaging.
These representations are false and misleading because customers are entitled to receive a refund, repair or replacement including when the goods purchased are faulty or do not match their description – despite any attempts by the retailer to limit this right by suggesting otherwise.
The ACCC is seeking injunctions against the retailer's owner to restrain him from continuing with the conduct in question, pecuniary penalties, declarations that he breached the ACL, and costs. The case is listed for an interlocutory hearing in the Federal Court in Melbourne on 16 December 2014.
Lessons to be learnt ...
If you operate an online retail store, it is worthwhile to have a lawyer at Shire Legal review your website prior to publication, to ensure that it does not breach the false and misleading provisions of the ACL. This is particularly important when you consider that the pecuniary penalties payable alone for a breach of the ACL are substantial – up to $1.1 million for a corporation, and $220,000 for an individual.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
