Shopping and subscription services

No, you do not have to make the regular scheduled payments while the gym is closed.

The Australian Consumer Law prohibits businesses from taking payments for goods or services when there are reasonable grounds to believe the goods or services won’t be supplied.

This applies even if your contract does not allow you to suspend payments.

If payments have been deducted, you should contact the business to have the payments refunded.

No, you do not have to make the regular scheduled payments while the food delivery service has stopped operating.

The Australian Consumer Law prohibits businesses from taking payments for goods or services when there are reasonable grounds to believe the goods or services won’t be supplied.

This applies even if your contract does not allow you to suspend payments.

If payments have been deducted, you should contact the business to have the payments refunded.

If you’ve made a regular scheduled payment that covers the period of the closure, your gym or service supplier should provide you with a refund or other remedy (such as a credit note or voucher) for the closure period.

However, if the service has been suspended due to government restrictions, this impacts your rights to a refund under the consumer guarantees in the Australian Consumer Law (see below question ‘Why are my rights different when cancellation is due to government bans?’).

It’s also important that you first check the terms and conditions of your contract with the service supplier to see what options are available to you. The contractual terms and conditions will govern what options are available.

Some contracts have pandemic and/or force majeure clauses (also known as ‘Acts of God’ clauses). These clauses may provide guidance in circumstances where the contract cannot proceed due to events outside both the contracting parties’ control.

You may also have rights under legislation or contracts law such as for a “frustrated” contract. A contract becomes “frustrated” when it can no longer be performed due to events outside of the control of both parties (and no term or condition covers the circumstances).

If you’re unable to resolve the issue with your supplier, you should obtain independent legal advice to understand more about your rights under common law, contract law, and the Australian Consumer Law.

After reviewing the terms and conditions, you may wish to contact the supplier to discuss all options. Generally, a negotiated outcome will lead to the best result for both parties.

As mentioned above, you may be able to negotiate:

• a refund. Your entitlement to seek a refund and terminate your contract is affected by the terms and conditions of your agreement with the gym.
• a credit note or voucher. These allow you to use the money already paid to the supplier at a later date. Any credit notes or vouchers should have an expiration date long enough to allow you to use it, considering ongoing restrictions.

Fair Trading encourages businesses to engage with consumers and treat them fairly in these exceptional circumstances.

Your rights under the Australian Consumer Law may be different when a cancellation is due to government restrictions such as current Public Health Orders.

Normally, businesses must provide consumer guarantees  for their goods or services. However, Public Health Orders can affect these guarantees since they may make it unlawful for the supplier to supply the goods or services as agreed.

It should be noted suppliers must take reasonable precautions and exercise due diligence before they agree to supply goods or services.

For example, they should be considering restrictions already in place and assess the likelihood of being able to supply their goods or services in the future.

If you have a gym membership and want to put it on hold due to COVID-19 concerns, you should first check the terms and conditions of your membership. The terms and conditions will govern what options will be available to you.

Depending on the terms and conditions of your membership, the gym may refuse your request to put your membership on hold. If there are no government restrictions preventing the gym from operating, your membership agreement with the gym remains enforceable.

Try to recall what you were told when you signed up for your gym membership. When you were signing up for your membership, someone from the gym may have told you about different circumstances in which you could cancel or freeze your membership. Due to the special circumstances COVID-19 presents, your gym might agree to you putting your membership on hold.

If there are no terms and conditions addressing your circumstances and you choose to terminate your contract with the gym, cancellation fees may apply (these will be outlined in your agreement with the gym).

If you are uncertain about the terms and conditions of the contract, we recommend you seek independent legal advice.

If your gym is forced to shut down due to COVID-19, it is expected that they would first notify you prior to the shutdown having effect. Any notification should outline any effect the shutdown will have on your membership. If you are unsure, call your gym and request that they clarify.

You should also check the terms and conditions of your membership to determine what options are available to you. Terms and conditions for gym memberships will usually outline the process for putting a membership on hold and may detail any effects a hold would have on the term of the membership.

If your gym is forced to shut down due to a COVID-19 outbreak, your gym should ‘freeze’ all memberships until the gym is able to operate again. No fees should be charged by the gym during this time as the gym’s services have ceased. If payments have already been deducted, you should contact your gym to have those payments refunded.

When the gym reopens, the hold would be lifted, and your membership will once again be active. Once reactivated, your membership would conclude after the period of time that initially remained prior to the shutdown has lapsed.

To illustrate, you may have two months left of your gym membership and suddenly the gym is shut down for one month due to COVID-19. The gym would notify all members that their memberships are to be put on hold for that shutdown period. After the one-month shutdown, your membership would then continue for another two months until the membership ends. The membership period would not include the one-month shutdown.

If the terms and conditions are unclear, you should ask for clarification from the gym itself.

We suggest contacting the business to discuss a possible solution.

In certain situations, you would have to register as a creditor.

More information is available from Australian Securities and Investments Commission .

NSW Fair Trading does not set prices and cannot prevent or take action to stop excessive pricing.

In some limited circumstances, excessive pricing may be unconscionable under the Australian Consumer Law, for example where the product is critical to the health or safety of vulnerable consumers.

If a business makes misleading claims about the reason for price increases, it will be in breach of Australian Consumer Law.

The NSW Minister for Better Regulation and Innovation may also publicly name businesses who engage in excessive pricing of essential items during the COVID-19 pandemic without a legitimate business reason.

Customers can contact us on 13 32 20 to make an enquiry or complaint about excessive pricing, misleading conduct or unconscionable conduct by businesses.

On 30 March 2020, the Commonwealth Minister for Health made a Determination that prohibits price gouging when reselling specific essential goods that help prevent the transmission of COVID-19.

This applies to any of these goods purchased in a retail transaction on or after 30 January 2020:

• disposable face masks
• disposable gloves
• disposable gowns
• goggles, glasses or eye visors
• alcohol wipes
• hand sanitiser

The Determination stops individuals or businesses that purchase goods directly from supermarkets, pharmacists, chemists or other retail stores from reselling, or offering to resell them, for more than 120% of the price they originally paid.

For example, hand sanitiser that was purchased in a retail transaction in February for $10 cannot be resold for more than $12.

Any reasonable shipping costs that were incurred as part of the original retail transaction are not considered when calculating the 120%.

The Determination does not apply to manufacturers or major suppliers (who generally purchase goods wholesale) that are vital to maintaining Australia's supply chains

You can report price gouging of essential goods to the Australian Federal Police.

Goods should be supplied within a reasonable time.

How long is ‘reasonable’ will depend on the type of product.

We recommend you speak with the retailer and discuss your concerns.

There is a guarantee that when you purchase a product the manufacturer or importer must provide spare parts and repair facilities for a reasonable time after purchase.

This applies even if you did not purchase the goods directly from the manufacturer or importer.

How long is ‘reasonable’ will depend on the type of product.

This guarantee does not apply if you are advised at the time of purchase that repair facilities and spare parts will not be available after a specified time.

There is no law preventing a business from either refusing or insisting on cash payments.

We advise businesses to clearly display their preferred payment method, so customers are fully aware before their purchase.

Payment must be made in Australian currency, unless otherwise agreed.

More information is available on the Reserve Bank of Australia website.

We suggest trying to contact the business to discuss a possible remedy.

In certain situations, you would have to register as a creditor.

More information is available on the Australian Securities and Investments Commission website.