NSW Fair Trading can help consumers and businesses resolve complaints in an efficient and effective way and as an alternative to the often costly (and lengthy) process of courts or tribunals. If a dispute has been through NSW Fair Trading’s dispute resolution process and a resolution has not been reached between the consumer and business, the consumer can request, the Commissioner for Fair Trading considers issuing a consumer guarantee direction. The direction can require the business to repair, replace or refund the good, under certain circumstances.
The consumer guarantee direction process
The process includes 7 steps:
- A consumer makes a complaint to NSW Fair Trading about a product (not service).
- NSW Fair Trading contacts both parties to encourage them to resolve the dispute.
- If no outcome is offered in accordance with the Australian Consumer Law, the consumer is advised of their options, including requesting a direction. The consumer has 30 days to make a request for a consumer guarantee direction.
- NSW Fair Trading assesses the request to see if it meets the eligibility criteria.
- NSW Fair Trading reviews the request and contacts both parties to invite them to make written submissions about the complaint. Information received by Fair Trading from the consumer and business will be shared with the other party so that they have a chance to respond.
- The request is assessed, and NSW Fair Trading decides whether to make a direction. The consumer and business are told the outcome.
- If appropriate, the consumer guarantee direction is issued.
At any time, the business and consumer can work together to reach a resolution between themselves without a direction being made. Visit the Resolving issues webpage for advice and tools on resolving complaints directly with a business.
Figure 1. Dispute resolution and consumer guarantee directions process
Alternatively you can download the NSW Fair Trading dispute resolution and consumer guarantee directions (PDF, 131.92 KB) for a simple guide of the steps involved.
Eligibility criteria
To be eligible for a consumer guarantee direction, a dispute must meet certain criteria:
- the matter was lodged with NSW Fair Trading, has progressed through the complaint handling process and no
- outcome was offered in accordance with the Australian Consumer Law
is about a product (not service) - the product has a purchase price between $25 – $3,000 (excluding GST)
- the product was purchased within the 6 months before the consumer made a complaint to NSW Fair Trading
- both the consumer and business are based in NSW (note that corporations only need to have a presence in Australia and are not required to be based in the state), and
- it is a dispute about an Australian Consumer Law (ACL) consumer guarantee relating to:
- the acceptable quality of the product
- the product being fit for its disclosed purpose
- the supply of goods by description, or
- the product matching the description, sample or demonstration model.
Matters not eligible include disputes about:
- false and misleading representations
- unsolicited sales or bait advertising, and
- excluded products, such as a motor vehicle, a component part of a motor vehicle, second-hand good, solar battery, a product relating to a home building claim, or a product that is subject of a review by a court or the NSW Civil and Administrative Tribunal (the Tribunal).
Did you know:
Most disputes can be resolved by speaking to the business directly.
It is always preferable that consumers and businesses work together to resolve their disputes between themselves.
Techniques for dealing with customers and putting good complaint handling processes into place is available on the Dealing with customers - complaints webpage.
Process for assessing whether to issue a direction
As part of the assessment process, NSW Fair Trading will give the business and consumer an opportunity to provide written information about the dispute and respond to any information given by the other party.
In deciding whether to issue a direction or not, NSW Fair Trading will:
- identify which of the consumer guarantees is relevant to the dispute (download a copy of the Australian Consumer Law - Consumer guarantees for businesses guide for more information)
- assess whether there has been a failure to comply with the identified guarantees, and
- assess whether the failure is a major or minor failure, and identify the appropriate remedy (a refund, replacement or repair).
NSW Fair Trading will then decide whether to make a direction or not. If a direction is made, it will direct whether the business is to repair, replace or refund the purchase price to the consumer. The direction will include a monetary value, even where there is a direction made to repair or replace a product.
NSW Fair Trading will advise both parties in writing of any decision made.
After a direction has been issued
If a direction is made, the business must comply with the direction.
If the business or consumer disagrees with the direction, either of them can apply to the Tribunal to have the dispute re-determined. The NSW Fair Trading Commissioner may also publish the direction where it has not been complied with.
Options where a business does not comply with a direction
If a business does not comply with a direction within 28 days (or another period specified in the direction), the consumer can register the direction in the Local Court as a judgement debt and apply to have it enforced.
This can be done by:
- completing a Registration/filing of certificate of judgment or order (Form 45) using the Online form registry on the Uniform Civil Procedure Rules website. For more information about how to do this, visit the NSW Legal Aid website for a step by step guide, or
- enforcing the judgment through the Local Court. For more information about how to do this, visit the NSW Legal Aid website.
Generally, you should seek legal advice before seeking to enforce a judgment debt.
There are different ways you can enforce a judgment and you should think about which option will be best in your situation.
Types of enforcement may include:
- asking the Sheriff to seize and sell property belonging to the business (called a'writ for the levy of property')
- having money deducted directly from the business’s bank account (called a'garnishee order'), or
- issuing an examination notice requiring the business to provide information about the business’s finances (called an 'examination') before seeking a garnishee order, if further information is required.
For a step by step guide on how to proceed with enforcement, visit the NSW Legal Aid website.
You have six years to start court proceedings to recover money or goods. If you are not sure when your time limit begins, seek legal advice.