The presents you bought at Christmas might need to be returned – what are your rights?

It is nearly the end of January, and you are rummaging through a box of lightly used gift bags and carefully opened wrapping paper, both of which you intend to reuse next year. You are looking for the receipt to the new air fryer you gifted your parents, which made one excellent bowl of chips and promptly blew a fuse, never to switch back on again.

You instinctively know that you are owed something, whether it be a refund or replacement – but where are these rights found? Who is responsible? And what other remedies are you entitled to?

The Australian Consumer Law sets out a detailed set of rights for any goods or services that a consumer[1] may acquire and the recourse a consumer can take against a supplier or manufacturer who fails to uphold these rights. The rights attached to the acquisition of goods and services are called “consumer guarantees” but there are many factors which may impact whether your specific return is empowered under a consumer guarantee.

What are the consumer guarantees for goods?

There are nine guarantees that relate to the supply of goods[2], these are guarantees that:

  1. the supplier has the right to sell you the goods and give you ownership of the goods,
  2. (unless you contract with the supplier otherwise) you will have ‘undisturbed possession of the goods’ essentially preventing anyone, including the supplier, from trying to take back the goods from you,
  3. the goods will be free of any third-party security, charge or encumbrance at the time you take ownership of the goods,
  4. goods are of an acceptable quality in that they fit for all purposes for which goods of that kind are commonly supplied, are acceptable in appearance and finish, free from defects, safe and durable,
  5. goods are reasonably fit for any disclosed purpose (that purpose should have been disclosed by you at the time of purchase),
  6. goods will match their description,
  7. goods match a sample or demonstration model,
  8. spare parts and repair facilities are available for a reasonable period,
  9. the manufacturer of the goods will comply with any express warranty given or made by the manufacturer in relation to the goods.

As you will see, not all guarantees are relevant for each good but all goods, so long as they are equal to or less than $100,000 or are purchased for personal use, are protected by consumer guarantees. This is inclusive of sale items or items purchased with discount codes.

It is sometimes the case that a product initially appears fine but later reveals a fault or issue. Consumer guarantees apply automatically and operate for a reasonable time after the purchase. What is “reasonable” depends on the product or service but a retailer cannot simply refuse a valid and reasonable return, despite any return policy (for example).

What About Services?

Perhaps instead you were gifted a deluxe car wash package, complete with full detailing and waxing, ceramic coating, and a tire shine. However, when you later arrived to pick your car up, you realised that your GPS and other electronic accessories were completely ruined by water damage. Interestingly, the sunroof of your car was left wide open. You deduce that the water damage had occurred because an attendant failed to ensure the sunroof had been closed prior to rinsing the car.

There are three consumer guarantees[3] which relate to the provision of services:

  1. the service will be rendered with due care and skill, taking necessary action to avoid harm,
  2. the service will be fit for fulfilling a purpose made known by the consumer (either expressly or implicitly),
  3. (if you haven’t pre-agreed as to when the services will be supplied) the services will be provided within a reasonable time,

In this instance, the car wash service did not exercise due care as they neglected to close the sunroof, which was a reasonable step to prevent damage to the car’s interior.

But what can you do if you think a consumer guarantee has been breached?


Consumer guarantees apply to both major and minor problems associated with the good and/or service. Major problems are serious faults, while minor failures relate to product flaws which can be fixed within a reasonable timeframe.

Refer to the examples below to see whether your issue qualifies as ‘minor’ or ‘major’:

Minor Flaws

  • The goods have a fault which can be easily repaired and within a reasonable timeframe (e.g., returning a jacket with a faulty zip to be repaired in-store).
  • The goods were delivered with a component missing that was initially included as part of the sale (e.g., a helmet which was included in the sale of a bike)
  • If a performed service causes a secondary issue (e.g., repairs on a cracked phone screen accidentally causing issues with the device’s microphone).

Major Faults

  • The goods are unsafe by fault and not nature (e.g., a faulty wired electrical product, not a kitchen knife).
  • The goods differ significantly from its description, can apply to appearance as well as use.
  • The goods which are significantly unfit for their designed purpose (e.g., an umbrella made from non-waterproof material).
  • A reasonable consumer would not have purchased the goods if they were aware of the issue.

Consumers who have acquired a good and/or service with a major fault are entitled to reject the goods and choose themselves a refund or replacement, or to ask for compensation for any decreases in the value of the good. However, consumers who have acquired a good and/or service with a minor fault cannot choose to reject the goods and demand a refund. Instead, they can ask the supplier to fix the issue and the choice therefore moves to the supplier to decide whether to refund, replace or repair the fault.

Common Issues

Q: “What if I just don’t like the good that I purchased anymore?”

A: If there is nothing wrong with the goods you purchased you simply don’t want it, consumer guarantees are unlikely to apply. However, some retailers may allow gift exchanges or offer additional policies for change-of-mind. If the retailer or supplier has made a representation about any promotions they claim to offer, they must uphold this under Australian Consumer Law. Therefore, it is always worth checking store policies as well.

Q: “I bought my product from a retailer based overseas. Are they still subject to Australian Consumer Law?”

A: Yes. If a retailer, supplier or manufacturer sells its products to consumers within Australia, they are still subject to consumer guarantees under Australian Consumer Law and must fulfil their obligations.

Q: “Can I return a gift that has a fault that I did not purchase myself?

A: Yes. Gift recipients are entitled to the same rights, responsibilities and remedies, as the direct consumer of goods and/or services under Australian Consumer Law.

Q: I purchased a product from a supplier, who is now saying that the fault lies with the manufacturer and not with them. What should I do?

A: Even if the fault lies in the products manufacturing, the retailer who sold you the product is obligated to aid in providing a remedy. Only if the issue relates to repairs and spare parts, or any express warranties expressed by the manufacturer, may you claim a remedy from the manufacturer directly – however, the retailer must help with this process. The retailer can then choose to pursue their own right of indemnity against the manufacturer, but this is not your issue.

Final Words of Wisdom

To assist you claiming your remedy, Roger Featherston, a commissioner with the Australian Competition and Consumer Commission, has advised consumers to use the words ‘Australian Consumer Law’ while returning faulty products. This should stress to a retailer that you are aware of your rights as an Australian consumer and should aid in a smoother return of any defective Christmas presents.

If you have any questions or require further advice on consumer guarantees, please contact the BAL Lawyers Business & Commercial team or the Litigation and Dispute Resolution team on 02 6274 0999.

[1] A consumer is a person acquired the goods where (a) the amount paid or payable is equal to or less than $100,000, or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or consumption, or (c) the goods were a vehicle or trailer acquired for use principally in the transport of goods on public roads.

[2] These are located in ss.51 to 59 of the Australian Consumer Law.

[3] See sections 60 to 62 of the Australian Consumer Law.

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