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John Melis, Expert
Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.
There are three steps you may take with this important matter.
1. issue a formal complaint in writing to the company and if they refuse then follow step two;
2. Where the company has refused to assist you, the next step is to write s formal complaint to the ombudsman, but this can be a lengthy process. If you are not able to wait out the time, you can follow step 3.
3. You will have a claim under the Australian Consumer Law based on the facts that you have described and you will be able to claim compensation. The legislative Act that applies is the Competition and Consumer Act 2010, Schedule 2.
The company warrants that goods or service are acceptable for their use/service.
a. Goods must be of acceptable quality
b. Goods must be fit for purpose
c. Goods must match their description
d. Goods must match any sample or model.
a. Must be rendered with due care and skill
b. Services must be fit for the specified purpose.
c. Services must be provided within a reasonable time.
The company has several options they can provide where goods or services have not meet the requisite standard. The seller can either repair, replace, refund, or compensation.
What you need to do is to write a formal complaint to the other party. This complaint needs to be in a chronological order detailing what is the issue and what action you have taken to try and rectify the matter.
The chronological order need to be be numbered with points 1, 2, 3, etc. with each point being a separate item.
The complaint needs to have detailed what you need fixed and for a time limit of a minimum of 7 days to apply.
The complaint then needs to be sent to the dispute resolutions department. Make sure you keep a copy for yourself.
Preferably send the complaint by email.
If you do not receive a reply within 7 days issue a follow up complaint to the first complaint issued.
If no response is received then it is time to commence an action in the local Magistrates Court.
You can lodge this claim directly on their website. The key element of the claim is the points claim that details the matter, This application point will need a little time to prepare the facts, and I recommend that you download the application first, review, fill it out, and then when you are ready lodge the same online
You may also have a claim of misleading conduct by the seller, under section 18 of the Australian Consumer Law. In general, misleading someone may include conduct ranging from lying to them, to making false or inaccurate claims, to creating a false impression, to leading them to a wrong conclusion, to omitting important information. Importantly, it is not necessary to establish that the trader intended to mislead or deceive. A person or corporation may have engaged in conduct that was misleading or deceptive even if they have acted honestly and reasonably. Silence may constitute misleading or deceptive conduct, but this will depend on the circumstances of the case.
The company cannot rely on a disclaimer or exclusion clause to protect themselves from misleading or deceptive conduct. However, the fine print will still be considered.
Would you like to try this option of the complaint first.
Thank you for reaching out today.
You have a legal right to protect your interests in this important situation.
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