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Buying goods or services online, by phone or in person from another individual (who is not in the business of trading goods and services) is often called a private sale.
Most consumer protection laws do not apply to private sales. A private sale creates a legally binding contract which might be verbal or written or a combination of verbal and written terms.
If you buy goods or services online using a credit card you may be able to stop payment if the goods or services are not delivered even if it was a private sale. Get legal advice if you are worried.
The law says that the goods purchased must be fit for their purpose. Whether something suits for its purpose is relevant to how much you paid for it. If you paid a small amount of money it is not reasonable to expect the features of a top quality product.
Often these agreements can be difficult to enforce as it is difficult to prove what was agreed. Sometimes they are for a small value and you need to consider whether it is worth taking legal action.
Before making an agreement for a private sale or if you have made an agreement and there is a dispute you should get legal advice.
Goods can be delivered to you when you did not ask for the goods or agree to receive services.
You are not required to pay for any goods or services which you received without prior agreement and you are not required to pay for the return of such unsolicited goods.
It is unlawful for a person or business to request payment from you for unordered goods or services unless that person has reasonable cause to believe that they have a right to the payment.
If you end up in a dispute with a business or a person demanding payment for unordered goods or services, it will be up to the business or person demanding payment to prove you agreed to buy the goods or services. You should get legal advice.
There is a recovery period for unordered goods. During this period, the supplier may recover the goods from you. The recovery period is generally three months, starting on the day after you receive the goods.
If you write to the supplier to let them know that you have received unsolicited goods, the recovery period will be reduced to one month, starting on the day after the notice is given.
The notice must be in writing and must include:
If the supplier makes no effort to recover the goods within the recovery period, you may keep the goods free of charge.
During the recovery period, it is your obligation to keep the goods in good condition and make them reasonably available for collection by the supplier. If you wilfully or unlawfully damage the goods during the recovery period, you may be required to pay compensation. You should get legal advice.
If you know the goods are meant for someone else (eg the package was clearly addressed to another person), these are not unsolicited goods and you are not allowed to keep them.
The Australian Consumer Law gives extra protection to people who buy goods or services from ‘unsolicited consumer agreements’.
These sales are when the seller cold called or approached you rather than when you contacted the seller with an interest in buying their goods or services.
These rights cannot be waived (given away) by the consumer and it is unlawful for a supplier to attempt to persuade a consumer to do so.
A consumer agreement is unsolicited if:
Common examples of circumstances in which unsolicited consumer agreements arise are:
It is not an unsolicited agreement if you contacted them to invite the salesperson to your house or ask them to telephone you regarding the purchase of the goods or services.
A salesperson is only allowed to contact you about unsolicited consumer agreements:
They are not allowed to contact you on Sundays or public holidays.
They cannot telephone you at all if you have placed your name on the Do Not Call Register.
If you want to stop door-to-door sellers knocking on your door you can ask the Office of Fair Trading to send you a "Do Not Knock" sticker to put on your front door.
If you ask a salesperson to leave your home, they must leave immediately. If a salesperson is told to leave, they may not contact you again on behalf of the same supplier for at least 30 days.
There is a statutory cooling off period for unsolicited consumer agreements. You may terminate an unsolicited agreement within 10 business days without penalty.
In some circumstances, if the supplier breaches certain rules regarding unsolicited consumer agreements, the cooling off period may be extended to 3 or 6 months.
To terminate the agreement within the cooling off period, you must notify the supplier. You can notify the supplier verbally or in writing. It is best if you notify the supplier in writing. A written notice to terminate can be sent by post, email, fax or may be hand delivered. There is no set form for this notice.
If you have trouble terminating your agreement within the cooling off period, you should get legal advice.
Once an agreement has been made, the supplier must give you a written copy of the agreement.
If the agreement was made in person, a copy must be given to you immediately after you sign it.
If the agreement was made over the phone, the copy must be given to you in person, by post or, if you agree, electronically, within 5 business days of the agreement.
A pyramid selling scheme is a scheme where all new participants are required to provide a financial or non-financial benefit to the existing participants in order to take part and are promised a financial or non-financial benefit for recruiting others to join the scheme.
Many pyramid selling schemes are illegal.
The Scamwatch website has information on how to recognise and protect yourself from many different scams, including pyramid selling schemes, investment scams, lottery and competition scams and many more.
To report a scam, contact the Office of Fair Trading or the Australian Competition and Consumer Commission (ACCC). The Office of Fair Trading also has information on how to protect yourself from scams and fraud.
An agreement can be made to buy goods or services over the internet. These agreements are contracts to buy and sell.
The Office of Fair Trading provides information and consumer tips for online shopping, including buying from overseas sites and from auction houses such as eBay.
The Australian Competition and Consumer Commission (ACCC) also provides information about online shopping.
Queensland Civil and Administrative Tribunal (QCAT) can hear consumer and trader disputes if the amount is under $25,000, and if the dispute is about a contract for the supply of goods and services, such as food, clothes, appliances, furniture, and car repairs. You should try to resolve your dispute with the other party before asking QCAT to hear your dispute.
If money was borrowed to buy goods and services, legal advice should be sought as it may be possible to cancel a credit contract used to buy goods and services. See Consumer credit and guarantees.
You may need legal advice if you
Legal Aid Queensland may provide legal advice about consumer disputes, disputes about private sales or dispute relating to unsolicited goods or services.
Legal Aid Queensland's Consumer Protection Unit (CPU) gives specialist legal advice about matters where products have been sold in circumstances where there have been high pressure sales tactics, such as in the case of door-to-door sales.
The following organisations may be able to give legal advice on your matter.
Community legal centres give legal information and advice on a range of topics. Contact them to see if they can help with your matter.
LawRight Self Representation Service (Federal) provides legal advice and assistance to people involved in civil proceedings in the Federal Circuit Court or Federal Court for matters involving bankruptcy and consumer and competition law. The service may also help with drafting documents and correspondence relating to your legal matter. They do not provide representation.
Queensland Law Society can refer you to a specialist private solicitor for advice or representation.
These organisations may also be able to assist with your matter. They do not provide legal advice.
Australian Competition and Consumer Commission (ACCC) has information about
The ACCC and ASIC have produced a new publication about your rights and responsibilities when you owe a debt, called Dealing with Debt.
The Australian Securities and Investments Commission have powers to protect consumers against misleading or deceptive and unconscionable conduct affecting all financial products and services, including credit.
The MoneySmart website is maintained by ASIC to provide independent guidance for consumers making decisions about their personal finances. They provide information about:
MoneySmart can also offer helpful information about important life events, including
Office of Fair Trading ensures the marketplace remains fair and safe for both consumers and business. OFT can help with the following matters:
Queensland Civil and Administrative Tribunal (QCAT) can hear consumer and trader disputes if the amount is under $25,000, and if the dispute is about a contract for the supply of goods and services, such as food, clothes, appliances, furniture, car repairs and maintenance, meals served in restaurants, or a haircut by a hairdressers. You should try to resolve your dispute with the other party before asking QCAT to hear your dispute.